                                NO. COA13-224-2

                     NORTH CAROLINA COURT OF APPEALS

                           Filed: 1 April 2014


FRANKIE DELANO WASHINGTON and
FRANKIE DELANO WASHINGTON, JR.,

    Plaintiffs,

    v.                                   Durham County
                                         No. 11-CVS-5051
TRACEY CLINE, ANTHONY SMITH,
WILLIAM BELL, JOHN PETER, ANDRE T.
CALDWELL, MOSES IRVING, ANTHONY
MARSH, EDWARD SARVIS, BEVERLY
COUNCIL, STEVEN CHALMERS, PATRICK
BAKER, THE CITY OF DURHAM, NC, and
THE STATE OF NORTH CAROLINA,

    Defendants.


    Appeals     by   plaintiffs   and   defendant     Patrick   Baker   from

orders entered 6 November 2012 by Judge W. Osmond Smith, III in

Durham County Superior Court.        Originally heard in the Court of

Appeals   28   August   2013.     Petition   for    Rehearing   allowed    6

January 2014.


    Ekstrand & Ekstrand LLP,            by   Robert    C.   Ekstrand,    for
    plaintiffs-appellants.

    Wilson & Ratledge, PLLC, by Reginald B. Gillespie, Jr., and
    Office of the City Attorney, by Kimberly M. Rehberg, for
    defendant-appellant Patrick Baker and defendants-appellees
    the City of Durham, North Carolina, Edward Sarvis, Beverly
    Council, and Steven Chalmers.

    Kennon Craver, PLLC, by Joel M. Craig and Henry W.
    Sappenfield,  for  defendants-appellees Anthony Smith,
                                     -2-
      William “Doug” Bell, John Peter, Moses Irving, and Anthony
      Marsh.

      HUNTER, Robert C., Judge.


      Frankie Washington (“Washington”) and Frankie Washington,

Jr.   (“Washington,       Jr.”)     (collectively     “plaintiffs”)       and

defendant    Patrick    Baker    (“Baker”)   appeal   from     interlocutory

orders entered by Judge W. Osmond Smith, III on 6 November 2012

in Durham County Superior Court.           Plaintiffs appeal from orders

granting    nine   of   twelve    defendants’1   motion   to    dismiss   for

insufficient service of process and denying plaintiffs’ motion

to amend the summons against defendant City of Durham (“the

City”).     Baker appeals from orders denying his motion to dismiss

for insufficient service of process and denying his motion to

dismiss the action for failure of the summonses to contain the

“title of the cause” as is required by North Carolina Rule of

Civil Procedure 4(b).

1
  Baker is the only defendant-appellant.      Andre T. Caldwell,
although named in the complaint, is not listed in the briefs as
an appellee, and does not appear to have been a party to the
suit at the time the trial court entered its orders. Therefore,
the nine defendants whose motion to dismiss was granted, and
thus the nine appellees to plaintiffs’ appeal, are Steven
Chalmers (“Chalmers”), Beverly Council (“Council”), Anthony
Smith (“Smith”), William Bell (“Bell”), John Peter (“Peter”),
Moses Irving (“Irving”), Anthony Marsh (“Marsh”), Edward Sarvis
(“Sarvis”), and the City of Durham (“the City”) (collectively
“defendants-appellees,” or, when including Baker, “defendants”).
                                               -3-
      On   appeal,         plaintiffs        assert       that:     (1)    the     trial   court

erred by granting defendants-appellees’ motion to dismiss for

insufficient          service     of    process           because       plaintiffs      properly

served     those      defendants        via    designated           delivery       service      and

defendants are estopped from asserting such defense, and (2) the

trial court erred by denying plaintiffs’ motion to amend the

summons for the City because such amendment would not prejudice

the City.          Baker argues that: (1) the trial court erred by

denying     his       motion     to    dismiss        for    insufficient            service     of

process     because          plaintiffs        failed        to     meet       the    statutory

requirements for designated delivery service, and (2) the trial

court    erred        by   failing      to     dismiss       the        action    because       the

summonses       did    not     contain        the    “title        of    the     cause”    as    is

required by statute.

      On 5 November 2013, this Court filed an opinion affirming

the trial court’s orders granting the City’s motion to dismiss

for insufficient service of process, denying Baker’s motion to

dismiss for insufficient service of process, denying plaintiffs’

motion     to   amend      the    summons,          and    denying       Baker’s      motion     to

dismiss for failure of the summonses to contain the “title of

the   cause.”          However,        we    reversed        the    trial        court’s   order

granting all other defendants-appellees’ motion to dismiss for
                                               -4-
insufficient        service        of     process.         Upon     reexamination,         we

maintain this disposition, but we modify the originally filed

opinion.      This opinion supersedes the previous opinion filed 5

November 2013.

                                         Background

       Plaintiffs’         claims       against      defendants     arise   out      of   the

arrest,      prosecution,           conviction,         and   ultimate        release      of

Washington that took place over a six-year period between 30 May

2002 and 22 September 2008.                After a four-year, nine-month delay

between arrest and trial, Washington was convicted of first-

degree burglary, two counts of second-degree kidnapping, robbery

with    a   dangerous       weapon,       attempted      robbery     with   a   dangerous

weapon,     assault        and    battery,      and     attempted     first-degree        sex

offense.          This    Court     vacated       his   convictions     due     to   delays

attributed to the State in violation of Washington’s right to a

speedy trial under the Sixth Amendment of the United States

Constitution and Article I, Section 18 of the North Carolina

Constitution.            See State v. Washington, 192 N.C. App. 277, 665

S.E.2d      799    (2008).          On    21   September      2011,    Washington         and

Washington, Jr. filed a complaint and obtained civil summonses

against defendants for, inter alia, violations of federal and

state       constitutional              provisions,        malicious        prosecution,
                                     -5-
negligence, negligent and intentional infliction of emotional

distress, conspiracy, and supervisory liability.

       Plaintiffs attempted to serve process on defendants using

FedEx, a designated delivery service.             All defendants except

Council were served between 23 and 27 September 2011; Council

was served on 25 October 2011.

       The   packages   containing    summonses    and   copies   of    the

complaint sent to the City and Baker contained the following

directory paragraphs, respectively:

             City of Durham
             c/o Patrick Baker
             101 City Hall Plaza
             Durham NC 27701

             Patrick Baker City Manager
             City of Durham
             101 City Hall Plaza
             Durham NC 27701

At the time of service, Baker was the City Attorney, not the

City   Manager.     Both   packages    were   received   by   April    Lally

(“Lally”), a receptionist and administrative assistant in the

City Attorney’s Office; Lally signed for the packages and later

handed them to Baker.      Baker later filed an affidavit with the

trial court in which he admitted to receiving the summons and

complaint against him.
                                                -6-
       Plaintiffs attempted to serve Chalmers at his home, but

left    the    package       containing         the   summons       and       complaint     with

Chalmers’ visiting twelve-year-old grandson who was playing in

the    front    yard.         Chalmers’         grandson       went      inside      and    gave

Chalmers the package; Chalmers later filed an affidavit with the

trial court admitting that he received the summons and complaint

against him.

       Plaintiff       attempted         to   serve      Council        by    delivering      the

package via FedEx to her home, but no one was there at the time

of delivery.          The driver left the package on the door step to

the side door; Council later filed an affidavit with the trial

court   admitting        that      she    received       the      summons      and   complaint

against her later that evening when she returned home.

       Plaintiff attempted to serve Bell, Irving, Marsh, Peter,

Sarvis,       and    Smith    by     having      a    FedEx       driver      deliver      their

summonses       and    copies      of     the    complaint         to    the    City    Police

Department’s          loading      dock.          Bell      and     Irving      were       former

employees       of    the    City’s       Police      Department         at    the     time   of

delivery;      Marsh,       Peter,       Sarvis,      and    Smith      were    then-current

employees.          The driver left the package with Brenda T. Burrell

(“Burrell”), an employee for the City’s Police Department who is

responsible for “receiving materials and supplies delivered to
                                            -7-
the Police Department for use in its operations.”                       Each of these

defendants filed an affidavit with the trial court admitting

that he received the summons and complaint against him.

       Plaintiffs filed with the trial court affidavits of service

and receipts generated by the designated delivery service for

each defendant.          They also re-filed the defendants’ affidavits

in which they admitted to receiving the summonses and copies of

the complaint against them as evidence of effective service of

process.

       On 11 January 2012, Cline and the State of North Carolina

filed motions to dismiss for insufficient service of process,

among other claims not relevant to this appeal.                          On 23 March

2012, all remaining defendants also filed a motion to dismiss

for insufficient service of process.                   That same day plaintiffs

filed    a    motion    to   amend    the    summons      issued   to   the   City    to

replace Baker with the then-current City Manager.                       On 6 November

2012 Judge Smith entered orders: (1) denying plaintiffs’ motion

to    amend    the     summons;      (2)    denying    motions     to    dismiss     for

insufficient service of process                   as to   Baker, Cline, and the

State of North Carolina2; and (3) granting motions to dismiss for

insufficient service of process as to defendants-appellees.                           On



2
    Only Baker appeals from this order.
                                   -8-
15 November 2012, plaintiffs filed a timely notice of appeal.

On 27 November 2012, Baker also filed timely notice of appeal.

                    Grounds for Appellate Review

    The   orders   from    which   plaintiffs    and   Baker    appeal    are

interlocutory.     “Generally,     there   is   no   right     of   immediate

appeal from interlocutory orders and judgments.”                Goldston v.

Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990).

However, the Court does allow immediate appeal of interlocutory

orders in some circumstances.

            [I]mmediate appeal of interlocutory orders
            and judgments is available in at least two
            instances.     First, immediate review is
            available when the trial court enters a
            final judgment as to one or more, but fewer
            than all, claims or parties and certifies
            there is no just reason for delay . . . .
            Second, immediate appeal is available from
            an interlocutory order or judgment which
            affects a substantial right.

Sharpe v. Worland, 351 N.C. 159, 161-62, 522 S.E.2d 577, 579

(1999) (quotation marks omitted); see also N.C. Gen. Stat. § 1-

277(a) (2013) (“An appeal may be taken from every judicial order

. . . which in effect determines the action, and prevents a

judgment from which an appeal might be taken; or discontinues

the action.”).

    Here,     plaintiffs     appeal      from   an     order        dismissing

defendants-appellees, who comprise more than one but not all
                                        -9-
parties.     This order is in effect a final judgment as to those

defendants-appellees, and the trial court certified in the order

dismissing    them   that     there    was    no   just    reason        for    delay   in

appeal pursuant to Rule 54(b) of the North Carolina Rules of

Civil   Procedure.       As    such,    plaintiffs         appeal    of        the   trial

court’s order granting defendants-appellees’ motion to dismiss

is   properly   before      this   Court.          See    DKH    Corp.     v.    Rankin-

Patterson Oil Co., 348 N.C. 583, 585, 500 S.E.2d 666, 668 (1998)

(“[I]f the trial court enters a final judgment as to a party or

a claim and certifies there is no just reason for delay, the

judgment is immediately appealable.”).

      Although Baker admits that his appeal does not stem from a

final judgment or an order affecting a substantial right, he

argues that the Court should hear his appeal in order to prevent

“fragmentary appeals.”         The circumstances here are comparable to

those in RPR & Assocs., Inc. v. State, 139 N.C. App. 525, 530-

31, 534 S.E.2d 247, 251-52 (2000), in which this Court chose to

hear an appeal from the trial court’s denial of a motion to

dismiss for insufficient service of process that was not itself

immediately appealable, but was related to an issue properly

before the Court.        The Court reasoned that “to address but one

interlocutory    or      related       issue       would        create     fragmentary
                                        -10-
appeals.”        Id. at 531, 534 S.E.2d at 252.            Here, Baker’s appeal

involves the application of the same rules to the same facts and

circumstances as plaintiffs’ appeal, which we choose to allow.

Therefore, in order to prevent fragmentary appeals, we find that

Baker’s appeal is also proper at this time.

      Additionally, we find the appeals from the trial court’s

orders denying plaintiffs’ motion to amend the summons against

the City and denying defendants’ motion to dismiss for failure

of the summons to “contain the title of the cause” are also

properly before the Court pursuant to N.C. Gen. Stat. § 1-278,

which provides that “[u]pon an appeal from a judgment, the court

may   review      any   intermediate    order     involving      the     merits   and

necessarily affecting the judgment.”                  Here, plaintiffs properly

appeal from a final judgment, and the above orders involve the

merits     and     necessarily    affect       that    judgment.         Therefore,

appellate review is appropriate at this stage of litigation.

                                   Discussion

                    I. Sufficiency of Service of Process

      Plaintiffs        first   argue   that    the     trial    court    erred    by

granting         defendants-appellees’          motion      to     dismiss        for

insufficient service of process.                Baker argues that the trial

court erred by denying his motion to dismiss for insufficient
                                                  -11-
service of process.                After careful review, we reverse the trial

court’s       order    dismissing           all     defendants-appellees          except     the

City and affirm the trial court’s order denying Baker’s motion

to dismiss.

       A. Estoppel

       At the outset, plaintiffs cite Storey v. Hailey, 114 N.C.

App. 173, 441 S.E.2d 602 (1994), in support of their argument

that    defendants          are     estopped        from     asserting      the   defense     of

insufficient service of process.                          In Storey, this Court ruled

that the defendants were estopped from asserting insufficient

service       of    process        as   a    defense        where    they    asked     for   and

received extensions of time without alerting the plaintiff to

any possible defects in service, and plaintiffs ran out of time

to    effect       valid    service         due     to    the    extensions.         The   Court

reasoned that          by doing so,               the defendants in effect “lulled

[the] plaintiff into a ‘false sense of security’ and probably

prevented          [the]        plaintiff      from       discovering       her   error      and

effecting valid service within the statutory period.”                                   Storey,

114    N.C.    App.        at    176,   441        S.E.2d    at     604.     Here,     although

defendants did receive extensions of time from the trial court,

they explicitly stated that the reason for the extensions was to

“determine         whether        any       Rule     12     or    other     defenses       [were]
                                           -12-
appropriate.”             Defendants-appellees’           and     Baker’s     motion     to

dismiss      for     insufficient        service     of     process       were    entered

pursuant to Rule 12(b)(5).                  Therefore, plaintiffs had notice

that   such    motions       could   be    filed.         Furthermore,        defendants-

appellees in fact served plaintiffs with their answer containing

the defenses on 16 December 2012, four days before the last day

in   which     plaintiffs        could     have    obtained       extensions      of    the

summonses.         It is evident that plaintiffs had actual notice of

the defenses, because they served their reply to the answer on

20   December      2011,     the   same    day    that     the    summonses      expired.

Therefore,         because       defendants       were      not        responsible      for

plaintiffs’ failure to extend the life of the summonses, we find

that Storey is inapposite and defendants are not estopped from

asserting the defense of insufficient service of process.

       B. Natural persons

       Defendants-appellees and Baker moved to dismiss this action

under Rule 12(b)(5) for insufficient service of process.                                “We

review de novo questions of law implicated by denial of a motion

to   dismiss       for    insufficiency      of    service        of    process.”       New

Hanover      Cnty.       Child   Support    Enforcement          ex    rel.    Beatty    v.

Greenfield, __ N.C. App. __, __, 723 S.E.2d 790, 792 (2012).
                                     -13-
    Rule    4(j)(1)d      of   the   North   Carolina   Rules    of    Civil

Procedure sets forth the requirements for service of process on

natural   persons   via    designated   delivery   service,     the   method

utilized by plaintiffs here:

           d. By depositing with a designated delivery
           service . . . a copy of the summons and
           complaint, addressed to the party to be
           served, delivering to the addressee, and
           obtaining a delivery receipt.

N.C. Gen. Stat. § 1A-1, Rule 4(j)(1)d (2013).           Where defendants

appear in an action and challenge the service of the summons (as

all defendants did here), service by designated delivery service

may be proved in the following manner:

           (5) Service by Designated Delivery Service.
           -   In the case of service by designated
           delivery   service,  by   affidavit  of   the
           serving party averring all of the following:

                a. That a copy of the summons and
                complaint   was    deposited    with  a
                designated    delivery     service   as
                authorized under G.S. 1A-1, Rule 4,
                delivery receipt requested.

                b. That it was in fact received as
                evidenced by the attached delivery
                receipt or other evidence satisfactory
                to the court of delivery to the
                addressee.

                c. That the delivery receipt or other
                evidence of delivery is attached.

N.C. Gen. Stat. § 1-75.10(a)(5) (2013).
                                         -14-
       At issue in this case is the interpretation of the phrase

“delivering to the addressee” in Rule 4(j)(1)d and section 1-

75.10(5).         Defendants      summarize      their    argument         as    follows:

“because FedEx did not deliver the process to the addressee or

an agent of the addressee, the requirement of Rule 4(j)(1)d of

‘delivering to the addressee’ was not met, and therefore service

was insufficient.”            In support of this contention, they further

argue that “[e]stablished case law of the Supreme Court and this

Court holds that Rule 4’s requirements for service of process

are to be strictly enforced.”               We agree that Rule 4 is “to be

strictly enforced to insure that a defendant will receive actual

notice of a claim against him.”                 Hamilton v. Johnson, __ N.C.

App.   __,      __,   747     S.E.2d    158,    162    (2013)    (emphasis         added)

(quoting Grimsley v. Nelson, 342 N.C. 542, 545, 467 S.E.2d 92,

94 (1996)).       However, the greater weight of precedent supports a

liberal       approach   to    interpreting      the    language      of    the    rules.

Both     of     our   appellate        courts    have    explicitly             recognized

liberality as the canon of construction when interpreting the

North Carolina Rules of Civil Procedure.                       See Excel Staffing

Serv., Inc. v. HP Reidsville, Inc., 172 N.C. App. 281, 285, 616

S.E.2d    349,    352    (2005)   (“It    is    true    that    our   Supreme       Court

instructed that when construing the Rules of Civil Procedure . .
                                      -15-
. that ‘[l]iberality is the canon of construction.’”) (quoting

Lemons v. Old Hickory Council, Boy Scouts of America, Inc., 322

N.C. 271, 275, 367 S.E.2d 655, 657 (1988)).              The Lemons Court

explained that:

              The Rules of Civil Procedure were adopted by
              the General Assembly at the urging of the
              North Carolina Bar Association “to eliminate
              the sporting element from litigation.” The
              philosophy underlying these rules was that:

                    Technicalities and form are to be
                    disregarded in favor of the merits of
                    the case. One of the purposes of the
                    rules was to take the sporting element
                    out of litigation. No single rule is to
                    be given disproportionate emphasis over
                    another    rule    which    also    has
                    application. Rather, the rules are to
                    be applied as a harmonious whole. The
                    rules are designed to eliminate legal
                    sparring and fencing and surprise moves
                    of litigants. The aim is to achieve
                    simplicity, speed and financial economy
                    in litigation. Liberality is the canon
                    of construction.

Lemons, 322 N.C. at 274-75, 367 S.E.2d at 657 (emphasis added)

(citation omitted).

       Furthermore, the General Assembly itself added commentary

to     Rule   4   indicating   that    it    is   “complementary”   to   the

jurisdiction statutes in N.C. Gen. Stat. § 1-75.1 et. seq. which

were    “proposed    for   consideration     contemporaneously   with    [the

North Carolina Rules of Civil Procedure].”            See N.C. Gen. Stat.
                                               -16-
§   1A-1,    Rule    4    official        commentary         (2013).         Section     1-75.1

states      that    the    jurisdiction         statutes,           including    section     1-

75.10, “shall be liberally construed to the end that actions be

speedily and finally determined on their merits.                              The rule that

statutes      in    derogation       of    the      common      law    must     be   strictly

construed does not apply to this Article.”                           N.C. Gen. Stat. § 1-

75.1 (2013) (emphasis added).                   The canon of liberality noted by

both this Court and the Supreme Court and the General Assembly’s

explicit intent to have actions “speedily and finally determined

on their merits” underlie the general recognition in this state

that:

              A suit at law is not a children’s game, but
              a serious effort on the part of adult human
              beings   to  administer   justice; and  the
              purpose of process is to bring parties into
              court. If it names them in such terms that
              every intelligent person understands who is
              meant, . . . it has fulfilled its purpose;
              and courts should not put themselves in the
              position of failing to recognize what is
              apparent to everyone else.

Wiles v. Welparnel Const. Co., Inc., 295 N.C. 81, 84-85, 243

S.E.2d 756, 758 (1978) (quoting United State v. A.H. Fischer

Lumber Co., 162 F.2d 872, 873 (4th Cir. 1947)).

      Turning       to    the    facts         of     this    case,     we    believe       that

Granville     Med.       Ctr.   v.   Tipton,        160      N.C.    App.    484,    493,   586

S.E.2d      791,    797    (2003),        is    helpful       to     our     analysis.        In
                                        -17-
Granville Medical Center, the plaintiff served the defendant via

certified mail under Rule 4(j)(1)c of the North Carolina Rules

of Civil procedure and won default judgment when the defendant

failed to answer the complaint.                Id. at 485-86, 586 S.E.2d at

793.    To prove service under section 1-75.10(4), the plaintiff

presented the trial court with an affidavit attesting that the

summons and complaint were delivered               to the defendant          and a

signature was obtained on the registry receipt.                  Id. at 490-91,

586 S.E.2d at 796-97.         The defendant attempted to rebut the

presumption of proper service by averring that the individual

who signed for the summons and complaint was not connected to

the defendant in any way.         Id. at 493, 586 S.E.2d at 798.

       In   addressing   section    1-75.10(4)      and   Rule    4(j)(1)c,    the

Granville Medical Center Court held that “a defendant who seeks

to   rebut    the   presumption    of    regular    service      generally    must

present evidence that service of process failed to accomplish

its goal of providing defendant with notice of the suit, rather

than simply questioning the identity, role, or authority of the

person who signed for delivery of the summons.”                  Granville Med.

Ctr., 160 N.C. App. at 493, 586 S.E.2d at 797 (2003) (citing In

re Williams, 149 N.C. App. 951, 959, 563 S.E.2d 202, 206 (2002)

(where the defendant “did not rebut this presumption by showing
                                    -18-
he never received the summons and complaint” the Court held that

“defendant    was   sufficiently    served       with   process”);   Poole   v.

Hanover Brook, Inc., 34 N.C. App. 550, 555, 239 S.E.2d 479, 482

(1977)   (a   defendant   who      “did    not    attempt    to   rebut   this

presumption by showing that he did not receive copies of the

summons and complaint” held to have “failed to show that service

of process was insufficient because a delivery was not made to a

proper person”)).     Thus, the Granville Medical Center Court held

that:

          In the present case, defendant's affidavit
          essentially states that (1) he did not
          personally    sign   the   registry      receipt
          indicating delivery of the summons, (2) the
          receipt was signed by “S” or “F” Hedgepeth,
          and (3) defendant had never employed a
          person   named   Hedgepeth    “as    an   agent,
          officer, employee, or principal[.]” On this
          basis,   defendant   asserts    his    affidavit
          proves the person signing for receipt of the
          summons “was not in any way connected with
          the defendant.” However, as the trial court
          observed, the fact that Hedgepeth was not
          defendant's agent or principal does not
          necessarily mean he had no connection to
          defendant. Further, as discussed above, the
          crucial issue is not whether the individual
          signing   for   the   summons    was    formally
          employed by defendant as his agent, but
          whether or not defendant in fact received
          the   summons.   Conspicuously    absent    from
          defendant's affidavit is any allegation that
          he did not receive the summons, or did not
          receive notice of the suit.

          We conclude that it was not error for the
                                           -19-
            trial court to conclude that defendant was
            properly served with the summons.     This
            assignment of error is overruled.

Granville Med. Ctr., 160 N.C. App. at 493-94, 586 S.E.2d at 798

(emphasis added).

      Although      the   holding          of    Granville      Medical      Center      is

distinguishable because it analyzed whether the defendant could

rebut a presumption of service, we find its reasoning as to the

interplay between Rule 4 and section 1-75.10 persuasive.                                The

rules   analyzed     by      the    Granville        Medical       Center    Court      are

materially   similar      to       those    at    issue    in      this   case.        Rule

4(j)(1)c,    like     Rule     4(j)(1)d,          requires      “deliver[y]       to    the

addressee” to effectuate valid service; section 1-75.10(4), like

section 1-75.10(5), allows proof of delivery to the addressee

with “other evidence” sufficient to establish that the summons

and complaint were “in fact received.”                       The Granville Medical

Center Court held that whether the defendant in fact received

the summons and complaint is the “crucial issue” to rebut a

presumption of “deliver[y] to the addressee” under Rule 4(j)(1)c

and   section    1-75.10(4).           Thus,       given     the    nearly    identical

language    of   these    rules,       it       follows    that     where    defendants

challenge “deliver[y] to the address” under Rule 4(j)(1)d and

section 1-75.10(5), the “crucial issue” is whether the summons
                                             -20-
and    complaint        were     in     fact     received       by      the     defendants

challenging service.

      Furthermore, principles of statutory construction lead us

to    conclude     that       defendants’        argument       that     Rule    4(j)(1)d

requires       direct    service       exclusively       on    a     defendant     or   his

service    agent        is    without     merit.            “The      best    indicia   of

[legislative] intent are the language of the statute . . . the

spirit    of    the     act    and    what     the    act     seeks    to     accomplish.”

Concrete Co. v. Bd. of Comm’rs, 299 N.C. 620, 629, 265 S.E.2d

379, 385 (1980).              The General Assembly’s stated objective in

passing the jurisdiction statutes in sections 1-75.1 et. seq.

was to have actions “speedily and finally determined on their

merits.”       N.C. Gen. Stat. § 1-75.1.                To achieve this end, the

General    Assembly      drafted       section       1-75.10    with    plain     language

allowing a plaintiff to prove service under Rule 4(j)(1)d with

either a return receipt or “other evidence” that copies of the

summons and complaint were “in fact received” by the addressee,

not   evidence        that    the     delivery       service       employee     personally

served the individual addressee or his service agent.                           N.C. Gen.

Stat. § 1-75.10(a)(5)(b).               Further, when construing a statute,

“the entire sentence, section, or statute must be taken into

consideration, and every word must be given its proper effect
                                             -21-
and weight.”         Nance v. S. Ry. Co., 149 N.C. 366, 271, 63 S.E.

116,   118     (1908).      Defendants’             interpretation     would     provide

almost no weight to the phrase “in fact received” in section 1-

75.10.       Viewed      under    the    doctrine        of   expressio       unius    est

exclusio alterius, which means the expression of one thing is

the exclusion of another, the fact that the legislature declined

to include a personal delivery requirement in Rule 4(j)(1)d when

it did so in other subsections throughout the statute indicates

its intention to exclude it.                  See N.C. Gen. Stat. § 1A-1, Rule

4(j)(5)a (2013) (prescribing “personal service” on a city, town,

or   village    as    an   effective         method     of    service);    Haywood      v.

Haywood, 106 N.C. App. 91, 99-100, 415 S.E.2d 565, 570 (1992)

rev'd in part, 333 N.C. 342, 425 S.E.2d 696 (1993).

       Here, by presenting the trial court with affidavits from

defendants-appellees         and    Baker       admitting      that    they     actually

received     the      summonses      and       complaints      after      the    service

documents      were    addressed        to     them    and    sent    through    FedEx,

plaintiffs      provided     incontrovertible            “other      evidence”        under

section 1-75.10(5) that the summonses and complaints were “in

fact   received”      by   the     addressees.          Therefore,     based     on    the

persuasive reasoning of the Granville Medical Center Court, the

General Assembly’s stated goal in enacting section 1-75.10, and
                                               -22-
the    plain    language         of     the     statute       itself,      we     hold    that

plaintiffs     properly          proved       service       via   Rule     4(j)(1)d       under

section    1-75.10(5),           and     the     trial      court’s       conclusion       that

plaintiffs     failed       to    properly          prove    service       on    defendants-

appellees, except the City, was in error.

       Defendants disagree with our conclusion for a number of

reasons.       First, they contend that because Rule 4(j)(1)c and

4(j)(1)d      both    contain          the     requirement        that    a     summons       and

complaint be “deliver[ed] to the addressee,” this Court should

follow precedent established by cases where Rule 4(j)(1)c was

construed.       We    agree       with       this     general     proposition,          as    is

exemplified     by    our    analysis          of     the   Granville      Medical       Center

decision above.        However, defendants cite Hunter v. Hunter, 69

N.C.   App.    659,    317       S.E.2d       910     (1984),     which    they    argue       is

directly on point.           Defendants claim that the Hunter Court held

that “transmitting process via certified mail to the defendant’s

place of employment, but not delivering the certified mail to

the defendant herself, even though the process was ultimately

delivered to the defendant, was invalid.”                          However, defendants

ignore the Hunter Court’s application of section 1-75.10.                                     See

id. at 661, 317 S.E.2d at 911.                      In applying this provision, the

Hunter Court actually held that:
                                    -23-
            [W]e find that plaintiff has failed to show
            proof of service of process in the manner
            provided by [section 1-75.10]. . . . The
            affidavit and accompanying delivery receipt
            show only that the summons was forwarded to
            defendant's place of business. There is no
            showing from the affidavit that defendant
            herself received a copy of the summons and
            complaint. The trial court had before it no
            evidence from which it could have determined
            that the summons was in fact delivered to
            defendant   since   there  was   no   genuine
            registry receipt or “other evidence” of
            delivery attached to the affidavit. We,
            therefore, conclude that plaintiff did not
            establish valid service of process over
            defendant and affirm the order of the trial
            court setting aside the judgment of divorce.

Id. at 663, 317 S.E.2d at 912 (emphasis added).                    This case is

therefore readily distinguishable; the trial court here, unlike

the trial court in Hunter, had before it affidavits from each

defendant    signifying    that    they      all,   in   fact,    received   the

summons and complaint against them after they were delivered by

FedEx.      Had   the   trial   court   in    Hunter     been    presented   with

similar evidence signifying delivery, it could have determined

that the summons and complaint were “in fact received”, per

section 1-75.10, on which it based its holding.3



3
  Defendants also argue that Osman v. Reese, No. COA09-950, 2010
WL 1315595 (N.C. Ct. App. Aril 6, 2010) is analogous to Hunter
and should be followed by this Court despite being unpublished.
They claim that the Osman Court held that “service via certified
mail delivered to defendant’s co-worker at defendant’s place of
employment was invalid under Rule 4(j)(1)c, even though
                                          -24-
       Next, defendants argue that their actual notice of the suit

did not cure the defect in service rendered by FedEx’s failure

to hand the summons and complaint to each defendant or his or

her respective service agents.                    The cases that defendants claim

support application of this principle here are distinguishable

in material aspects.          First, defendants cite Grimsley, 342 N.C.

at    544-46,     467    S.E.2d   at    94,       and   claim     that   in    that    case

“[t]here     was    no     question     that       process      was   received:       [the]

defendant     answered      the   complaint.            Nevertheless,      process      was

held   to    be    insufficient.”            In    actuality,      the   basis    of    the

plaintiff’s argument in Grimsley was that “while [the defendant]

was    not   actually       served      with       summons    and     complaint,       [the

insurance       company’s]     12      October       1992    answer      constituted      a

general appearance by [the defendant], thereby precluding [the

defendant]        from    raising      the        defense    of   lack    of     personal

jurisdiction.”           Id. at 545, 467 S.E.2d at 94 (emphasis added).



defendant   ultimately   received  the   process,   because  the
requirement of ‘delivering to the addressee’ had not been met.”
However, the Court explicitly stated that “[The defendant]
signed affidavits averring that he had never been served with
process in this case, and that he never ‘received a copy of the
Summons and Complaint that was purportedly mailed to [him] c/o
Merchant’s Tire.’”   Id. at *2 (emphasis added).   The co-worker
who received the summons and complaint averred that “[he] never
provided copies to [the defendant.]”      Id.   Because of this
crucial factual distinction, we disagree with defendants’
assertion that Osman has precedential value.
                                       -25-
Thus, it is clear that the defendant in Grimsley did not answer

the complaint; a third party to the suit did.                  Id. at 546, 467

S.E.2d   at   95.      The   Court     stated    unequivocally      that   “[the

defendant] has never been served with [the] summons and complain

as required by the Rules of Civil Procedure.”                  Id. at 546, 467

S.E.2d at 94.        This case is therefore distinguishable because

defendants    here    actually      received    copies   of   the   summons   and

complaint and filed answers directly.

      Furthermore, the other cases cited by defendants in support

of this proposition are equally distinguishable because in each

of them, the Court held that service was actually defective.

See Mabee v. Onslow Cnty. Sheriff’s Dept., 174 N.C. App. 210,

211-12, 620 S.E.2d 307, 308 (2005) (holding that service was

defective under N.C. Gen. Stat. § 162-16 because it was executed

by an individual other than those vested with authority to do so

under the statute, and that this defect could not be cured by

actual notice of the proceedings); Fulton v. Mickle, 134 N.C.

App. 620, 624, 518 S.E.2d 518, 521 (1999) (holding that service

was   defective      under   Rule    4(j)(6)c     because     the   summons   and

complaint were not sent to a party vested with authority to

accept service on behalf of a corporation); Long v. Cabarrus

Cnty. Bd. of Educ., 52 N.C. App. 625, 626, 279 S.E.2d 95, 96
                                   -26-
(1981) (holding that service was defective under Rule 4(j)(5)c

because it was not made on a person vested with authority to

receive   service    on   behalf   of     a   county   or   city    board    of

education).     For reasons discussed in more detail above, we do

not hold that service under Rule 4(j)(1)d here was defective;

therefore, we do not purport to hold that actual notice of the

suit cured a defect in service.

    Defendants next contend that Hamilton v. Johnson, __ N.C.

App. __, __, 747 S.E.2d 158, 162-63 (2013) is controlling and

requires a holding that service was defective because the FedEx

employee did not personally serve defendants or their service

agents.      Although they correctly characterize the holding in

Hamilton - that delivery by FedEx to an alleged concierge of a

building did not constitute “delivery to the addressee” under

Rule 4(j)(1)d – we still find this case to be distinguishable.

See id. at __, 747 S.E.2d at 162-63.           In Hamilton, the plaintiff

attempted to serve the summons and complaint on the defendant by

mailing them to his residence in Texas via FedEx.                  Id. at __,

747 S.E.2d at 160.        When the package arrived, an individual

identified    as    “KKPONI”   signed   for     the    documents,    but    the

defendant failed to appear at the subsequent hearing for which

service was meant to provide notice.            Id.     The Hamilton Court
                                      -27-
stated that:

              Absent any statutory presumption, plaintiff
              bore the burden of proving that “KKPONI”
              [the   alleged concierge] was defendant's
              agent, authorized by law to accept service
              of process on his behalf.

              Here, the trial court's order is devoid of
              any findings as to whether “KKPONI” was an
              agent   authorized  to  accept   service   of
              process on defendant's behalf. In fact, it
              is unclear how “KKPONI” was employed in the
              building—if an employee at all. Thus, we
              cannot conclude that service on “KKPONI,” an
              alleged     concierge,     satisfies     Rule
              4(j)(1)(d)'s requirement of “delivering to
              the addressee.”

Id. at __, 749 S.E.2d at 163.

       The fact that distinguishes Hamilton from this case is that

the Court makes no mention of whether the defendant actually

received      the   summons   and    complaint,    or   more    specifically,

whether the plaintiff attempted to prove service under section

1-75.10 with affidavits indicating that the defendant received

the summons and complaint.          In fact, the Hamilton Court makes no

citation to section 1-75.10, a statute crucial to our holding

that    the    General   Assembly     explicitly   states      must   be   read

“contemporaneously” with Rule 4.             See N.C. Gen. Stat. § 1A-1,

Rule 4 general commentary.            Thus, because we are faced with

additional facts not discussed by the Court in Hamilton, its

holding is distinguishable.
                                       -28-
      Ultimately, defendants’ arguments as to why Rule 4(j)(1)d

should be read to require personal service on a defendant or his

service agent, exclusive of all other individuals and regardless

of   whether   the   defendant    actually      receives    the     summons   and

complaint, are unavailing.        Because the trial court erred in its

conclusions,    we   reverse     the    trial     court’s   order    dismissing

defendants-appellees and affirm the order denying Baker’s motion

to dismiss.

      C. The City

      Unlike   natural   persons,       service    may   only   be    valid   and

effective upon a city:

           [b]y personally delivering a copy of the
           summons and of the complaint to its mayor,
           city manager or clerk; by mailing a copy of
           the summons and of the complaint, registered
           or certified mail, return receipt requested,
           addressed to its mayor, city manager or
           clerk; or by depositing with a designated
           delivery service authorized pursuant to 26
           U.S.C. § 7502(f)(2) a copy of the summons
           and complaint, addressed to the mayor, city
           manager,   or  clerk,   delivering  to   the
           addressee, and obtaining a delivery receipt.
           As used in this sub-subdivision, “delivery
           receipt” includes an electronic or facsimile
           receipt.

N.C. Gen Stat. § 1A-1, Rule 4(j)(5)a (2013) (emphasis added).

The list of parties named in the statute is exclusive; service

upon anyone other than the mayor, city manager, or clerk is
                                     -29-
insufficient to confer jurisdiction over a city.                See Johnson v.

City of Raleigh, 98 N.C. App. 147, 149-50, 389 S.E.2d 849, 851-

52 (1990) (holding that service of summons was insufficient to

confer personal jurisdiction over defendant city where a copy of

the summons and complaint was delivered to a person other than

an official named in Rule 4(j)(5)), disc. review denied, 327

N.C. 140, 394 S.E.2d 176.

    Here,    the   summons     and   complaint    were    not    addressed   to

either the mayor, city manager, or clerk, as is required by Rule

4(j)(5)a;   they   were     addressed   to   Baker,      who    was   the   City

Attorney.    Delivery to Baker, although technically delivery to

the addressee, was insufficient to confer jurisdiction over the

City because he is not a named official capable of receiving

service on behalf of the City.          Furthermore, there is no direct

evidence that the         City’s mayor, city manager, or clerk              ever

received the summons and complaint or were otherwise served in

any way.     The only evidence plaintiffs provide is a newspaper

article wherein the City’s mayor said that he would discuss the

lawsuit with other city officials and council members.                  Although

they may have had actual notice of this action, there is no

evidence indicating that any of the required parties in Rule

4(j)(5)a    were   ever    served    with   the   summons      and    complaint.
                                      -30-
Unlike    the   service   on    defendants        who   are   natural      persons,

service on the City was defective because plaintiffs did not

comply with Rule 4(j)(5)a, and any actual notice that                         those

parties enumerated in the rule may have had did not cure this

defect.     Fulton,   134      N.C.   App.   at    624,     518   S.E.2d    at   521

(citation and quotation omitted).

    Therefore, we hold that the trial court did not err in

granting the City’s motion to dismiss for insufficient service

of process.

                    II. Motion to Amend the Summons

    Plaintiffs     next     argue     that   the    trial     court   abused     its

discretion by denying its motion to amend the summons against

the City to correct the name of the person currently holding the

office of city manager.        We find no abuse of discretion.

    The North Carolina Rules of Civil Procedure vest discretion

in the hands of the trial courts to allow or disallow parties to

amend summonses:

            At any time, before or after judgment, in
            its discretion and upon such terms as it
            deems just, the court may allow any process
            or proof of service thereof to be amended,
            unless it clearly appears that material
            prejudice would result to substantial rights
            of the party against whom the process
            issued.
                                         -31-
N.C. Gen. Stat. § 1A-1, Rule 4(i) (2013).                    This Court therefore

reviews    such     orders    for     abuse   of    discretion.        See    White     v.

White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (“It is

well established that where matters are left to the discretion

of   the     trial     court,       appellate       review       is   limited      to   a

determination        of      whether     there      was      a     clear     abuse      of

discretion.”).        Although the trial courts have wide discretion

in this arena, that power has been limited by this Court to

those      cases     where      the     trial       court        initially    acquired

jurisdiction over the defendant.                   See Carl Rose & Sons, Ready

Mix Concrete, Inc. v. Thorp Sales Corp., 30 N.C. App. 526, 529,

227 S.E.2d 301, 303 (1976) (“The broad discretionary power given

the court       . . . does not extend so far as to permit the court

by amendment of its process to acquire jurisdiction over the

person     of   a    defendant      where     no   jurisdiction       has    yet     been

acquired.       A defendant cannot, in this short-hand manner by

amendment, be brought into court without service of process.”)

(citation and quotations omitted), overruled on other grounds,

Wiles v. Welparnel Const. Co., Inc., 295 N.C. 81, 86, 243 S.E.2d

756, 758-59 (1978).

     As stated above, in order to confer jurisdiction over the

City, plaintiffs needed to comply with Rule 4(j)(5) by sending
                                        -32-
the summons and complaint addressed to either the City’s mayor,

city manager, or clerk and delivering to one of those three

parties.       Because plaintiffs failed to do so, the trial court

never acquired jurisdiction over the City.                      Glover v. Farmer,

127 N.C. App. 488, 490, 490 S.E.2d 576, 577 (1997) (“Absent

valid service of process, a court does not acquire personal

jurisdiction      over   the     defendant       and     the     action     must    be

dismissed.”).

       Therefore, based on the rule set out in Carl Rose & Sons,

we find that the trial court did not abuse its discretion by

denying plaintiff’s motion to amend the summons, as it would

confer    jurisdiction    over    the    City     without      proper     service   of

process.

                          III. Title of the Cause

       Baker    argues   on   appeal     that    the     trial    court    erred    by

denying his motion to dismiss the action for failure of the

summonses to contain all of the necessary information required

by Rule 4(b), namely the “title of the cause.”                   We disagree.

       This Court reviews the conclusions of law entered by the

trial court in its order de novo.               Carolina Power & Light Co. v.

City   of   Asheville,    358    N.C.    512,     517,    597    S.E.2d    717,     721

(2004).
                                    -33-
      Pursuant to Rule 4(b) of the North Carolina Rules of Civil

Procedure, “[t]he summons shall . . . contain the title of the

cause.”   N.C. Gen. Stat. § 1A-1, Rule 4(b) (2013).                Here, the

title of the cause in the summons listed “Frankie Washington and

Frankie   Washington,   Jr.”   as   plaintiffs     and    “CITY   OF    DURHAM

(N.C.) ET AL” as defendants.        Baker argues that the title of the

cause in the summons is defective because it does not list all

defendants and does not mirror the title of the cause in the

complaint.    He cites to no authority for the proposition that

these   characteristics   render    the    title   of    the   cause    in    the

summons defective, and we find none.            Therefore, we find that

the argument is abandoned.          See Metric Constructors, Inc. v.

Industrial Risk Insurers, 102 N.C. App. 59, 64, 401 S.E.2d 126,

129 (1991) (“Because the appellee cites no authority for this

argument, it is deemed abandoned”).

                               Conclusion

      Because plaintiffs properly proved service by Rule 4(j)(1)d

under section 1-75.10(5), we reverse the trial court’s order

dismissing   all   defendants-appellees      except      the   City,    and   we

affirm the trial court’s order denying Baker’s motion to dismiss

for   insufficient   service   of    process.      We    affirm   the    trial

court’s order dismissing the City, because the record reveals
                              -34-
that plaintiffs failed to properly serve a party designated by

rule to receive service on behalf of the City.       Finally, we

affirm the trial court’s denial of plaintiffs’ motion to amend

the summons against the City and Baker’s motion to dismiss for

failure of the summonses to contain the title of the cause.



    AFFIRMED in part and REVERSED in part.

    Judges GEER and McCULLOUGH concur.
