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Sowell v. Clark8/6/2002
PUBLISHED
Defendant Kristopher Lynn Clark (defendant) appeals an order denying his motion to dismiss and an order awarding attorney fees to plaintiff, Leola Boyd Sowell, in this personal injury action. For the reasons discussed herein, we find no error.
The pertinent facts are as follows: On 20 October 1997, the vehicle defendant was operating rear-ended the vehicle operated by plaintiff on Providence Road in Charlotte, North Carolina. Plaintiff filed a complaint on 7 May 1999, alleging injuries to her neck, back, and spine as a result of defendant's negligence. She requested compensation for medical expenses, lost income, and pain and suffering.
On 29 June 1999, defendant filed an answer, including a motion to dismiss for insufficiency of service of process, and an offer of judgment in the amount of $1,000. Plaintiff refused the offer.
On 21 February 2001, defendant filed a motion to dismiss based on insufficiency of service of process. The ground for the motion was the same as the first, that defendant did not live at the address listed with the person served not authorized to accept it for defendant. The trial court denied the motion, finding, inter alia, that: (1) the summons included the names of both defendant and his father, defendant William Eddie Clark; (2) the Mecklenburg County Sheriff delivered a copy of the complaint and summons to William Clark on 6 June 1999 at his residence; (3) defendant lived with William Clark and his mother at the time of service of process; (4) William Clark was sixty-one or sixty-two at the time of defendant's deposition (2 April 2001); (5) William Clark was a responsible person, in good health, and did not suffer from any mental disability; and (6) William Clark informed defendant that the summons and complaint had been served. The trial court concluded that service was properly made to defendant's usual place of abode and that the Sheriff left a copy of the summons and complaint with a person of suitable age and discretion who resided there.
Plaintiff dismissed all claims as to William Clark on 11 April 2001.
At trial, the jury found that plaintiff was injured as a result of defendant's negligence and was entitled to recover $4,950 from defendant. Plaintiff's counsel then filed a motion for attorney fees as part of costs pursuant to N.C. Gen. Stat. § 6-21.1. The trial court granted the motion and ordered defendant to pay $5,445 in attorney fees. Defendant appeals this order and the order denying his motion to dismiss.
By defendant's first assignment of error, he argues the trial court erred in denying his Rule 12(b)(5) motion to dismiss based on insufficiency of service of process. We disagree.
The North Carolina Rules of Civil Procedure provide that service upon a natural person may be made by:
a. By delivering a copy of the summons and of the complaint to him or by leaving copies thereof at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.
b. By delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to be served or to accept service of process or by serving process upon such agent or the party in a manner specified by any statute.
c. By mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the party to be served, and delivering to the addressee. N.C. Gen. Stat. § 1A-1, Rule 4(j)(1) (2001).
In his answer, defendant moved to dismiss the claim based on insufficiency of service of process. He stated that: "The ground for this
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