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Patton v. Vogel

Court of Appeals of North Carolina

September 3, 2019

DAVID PATTON, Plaintiff,
v.
BOEBORA ANNE VOGEL, PATSY JONES PATTON, Defendants.

          Heard in the Court of Appeals 8 August 2019.

          Appeal by plaintiff from order entered 11 October 2018 by Judge Anderson Cromer in Guilford County Superior Court. No. 18 CVS 2665

          Schwaba Law Firm, PLLC, by Andrew J. Schwaba and Zachary D. Walton, for plaintiff-appellant.

          Hoffman Koenig Hering PLLC, by G. Clark Hering, IV and Daniel W. Koenig, for defendant-appellee Vogel.

          TYSON, JUDGE.

         David Patton ("Plaintiff") appeals from an order granting Boebora (Barbara) Anne Vogel's ("Defendant") motion to dismiss. We affirm the trial court's order.

         I. Background

         This action arose from a motor vehicle accident, which occurred on 10 May 2015 in Greensboro, North Carolina. Plaintiff was a passenger inside of a vehicle being driven by his wife. Plaintiff's wife stopped when the vehicle in front made a right turn. Plaintiff and his wife's vehicle was struck from behind by Defendant's vehicle.

         Plaintiff filed his complaint on 19 January 2018 and amended the complaint on 5 February 2018. Plaintiff deposited a file-stamped copy of the amended complaint and summons with FedEx Corporation ("FedEx") and signed a request for a return receipt on 15 February 2018. Plaintiff addressed the complaint to 3531 Cherry Lane in Greensboro, North Carolina, the address Defendant had listed on the accident report. The package was returned to Plaintiff by FedEx, which indicated 3531 Cherry Lane was vacant.

         Plaintiff retained a private investigator to determine Defendant's current address. The private investigator responded that Defendant resided at 3896 North Elm Street in Greensboro, North Carolina. Plaintiff deposited a file-stamped copy of the complaint and summons with FedEx with a request for a return receipt on 13 March 2018. Plaintiff received a signed receipt of delivery on15 March 2018, signed by "R. Price."

         Plaintiff filed an affidavit of service, alleging to have served Defendant on 14 March 2018 at 3896 North Elm Street in Greensboro, North Carolina. Plaintiff obtained an alias and pluries summons on 26 March 2018.

         Defendant preserved her challenges and answered Plaintiff's complaint on 17 May 2018. She alleged Plaintiff lacked jurisdiction to bring the claim due to insufficient process and service of process. Defendant requested the complaint be "dismissed pursuant to Rule 12(b)(2)(4)(5)." Defendant filed a separate motion to dismiss on 28 August 2018, based upon the grounds contained in her answer.

         Defendant included an affidavit with her motion to dismiss. She averred she lived at 3531 Cherry Lane in Greensboro, North Carolina on and after the date of the accident, had neither lived nor worked at 3896 North Elm Street in Greensboro, North Carolina, had not authorized "R. Price" or anyone else to accept legal papers for her, and had never been served with a copy of the summons, complaint, or amended complaint.

         Plaintiff filed a brief in response to Defendant's motion to dismiss and requested the trial court to deny Defendant's motion. In the alternative, Plaintiff requested the court to continue the hearing on Defendant's motion for Plaintiff to be allowed additional time for discovery. Following a hearing on Defendant's motion to dismiss, the trial court denied Plaintiff's request for a ...


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