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[T] Northfield Development Co.3/4/2003
UNPUBLISHED
A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).
Plaintiff, Northfield Development Co., Inc., appeals from an order granting defendant's motion to dismiss plaintiff's civil action challenging defendant's denial of its re-zoning request. The facts are uncontroverted.
On 6 November 2000, plaintiff filed a petition with the Burlington Planning and Zoning Commission seeking to have approximately 45 acres of plaintiff's real property re-zoned to accommodate manufactured homes. Following a public hearing on 6February 2001, the Burlington City Counsel voted to deny plaintiff's request.
On 6 April 2001, plaintiff initiated this action by applying for and receiving an order extending the time to file a complaint pursuant to N.C.R. Civ. P. 3(a). A summons was issued in accordance with Rule 3 naming the "City of Burlington c/o William R. Baker, City Manager" as the defendant. Both the summons and order were delivered to the Alamance County Sheriff's Department for service.
On 12 April 2001, an Alamance County Sheriff's Deputy went to the Burlington City Manager's office to serve the summons and order. The City Manager, ("Baker") was not in the office. The deputy told Shirley Thompson, a part-time city employee who was working as Baker's receptionist, that he was there to serve legal papers on Baker. Thompson told the deputy that Baker was not in the office. Thompson also told the deputy that he could leave the papers with her and she would give them to Baker when he returned. Consequently, the deputy left the summons and order with Thompson and made a notation to this effect on the return of service.
Plaintiff filed its complaint on 25 April 2001 and the complaint and summons were personally served on the Burlington City Clerk on 4 May 2001. On 24 May 2001, defendant moved pursuant to N.C.R. Civ. P. 6(b) for an enlargement of time within which to answer, to enable "counsel to determine whether any Rule 12 or other defenses are appropriate . . . ." Defendant's motion was granted and the time to answer was extended to 5 July 2001.Defendant timely answered, asserting insufficiency of service of process as it's first affirmative defense.
Defendant moved to dismiss the action pursuant to N.C.R. Civ. P. 12(b)(5) and 41(b). The trial court granted defendant's motion, finding that "the summons issued when th action was commenced was not served by delivery to the mayor, city manager, or city clerk . . . as required by Rules 3(a) and 4(j)(5)a . . . ." Plaintiff appeals.
The sole issue presented in this appeal is whether the trial court erred in granting defendant's motion to dismiss for insufficiency of service of process.
"When a statute prescribes the manner for proper notification, the summons must be issued and served in that manner." Johnson v. City of Raleigh, 98 N.C. App. 147, 149, 389 S.E.2d 849, 851 (1990), disc. review denied, 327 N.C. 140, 394 S.E.2d 176 (1990). " he manner of service of process" in any action commenced in North Carolina is governed by Rule 4(j) of the North Carolina Rules of Civil Procedure. N.C. Gen. Stat. § 1A-1, Rule 4(j) (2001). Rule 4 requires that service of process must be made " pon a city, town, or village by personally delivering a copy of the summons and of the complaint to its mayor, city manager or clerk . . . ." N.C. Gen. Stat. § 1A-1, Rule 4(j)(5)(a) (2001). " he statut
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