An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA14-74
                       NORTH CAROLINA COURT OF APPEALS

                            Filed:      2 September 2014


THE COUNTY OF JACKSON, a North
Carolina body politic,
     Plaintiff,

      v.                                       Jackson County
                                               No. 12 CVS 219
VERA MOOR and husband,
M. EUGENE MOOR, II1,
     Defendants.


      Appeal by defendants from order entered 30 October 2013 by

Judge Marvin P. Pope in Jackson County Superior Court.                    Heard in

the Court of Appeals 22 May 2014.


      No brief filed on behalf of plaintiff-appellee.

      Robinson, Bradshaw & Hinson, P.A., by Thomas P. Holderness,
      for defendants-appellants.


      DAVIS, Judge.


      Vera    Moor   (“Vera”)     and    M.    Eugene     Moor,   III   (“Eugene”)

(collectively “Defendants”) appeal from the trial court’s order

denying    their     motion    pursuant       to   Rule   60(b)   of    the   North


1
  In the caption of the trial court’s order, M. Eugene Moor,
III’s name appears as “M. Eugene Moor, II.”         In all other
documents, his name appears as “M. Eugene Moor, III.”
                                          -2-
Carolina Rules of Civil Procedure to set aside (1) an entry of

default;     (2)     a   default      judgment;        and   (3)    an      order   of

confirmation regarding the tax foreclosure sale of the subject

property.        On appeal, Defendants contend that the trial court

erred by denying their Rule 60(b) motion because the County of

Jackson (“the County”) failed to properly serve Defendants with

a summons or complaint, thereby rendering void all subsequent

orders entered against them.              After careful review, we reverse

the trial court’s order and remand for further proceedings.

                              Factual Background

       During the time period relevant to this action, Vera was

the sole owner of a 2.28 acre tract of land (“the Property”)

designated as Lot 43, Pinchot in Cashiers Township, which is

located in Jackson County, North Carolina.                   Vera has lived with

her husband, Eugene, in Birmingham, Alabama since 1 April 1989.

       The County filed a complaint in Jackson County Superior

Court on 3 April 2012 seeking to recover delinquent taxes owed

on    the   Property,    alleging     that      $13,808.30    in    accrued    unpaid

taxes existed, relating to tax years 2006-2011.                          On 4 April

2012, the County sent via certified mail two separate copies of

the    summons     and   complaint    —   one     addressed    to    Vera    and    one

addressed     to    Eugene   —   to   “P.O.      Box   382557,      Birmingham,     AL
                                          -3-
          2
35238.”         The summonses and complaints were returned unserved

with the notation:       “Unclaimed; Unable to Forward.”

    On 27 June 2012, the County sent via certified mail two

separate copies of the summons and complaint — one addressed to

Vera and one addressed to Eugene — to Eugene’s office, which was

located at 2850 Cahaba Road in Birmingham.                   Service at this

address       was   attempted    based     upon   a    telephone   conversation

between Eugene and Jeffrey Goss, the attorney for the County,

about the delinquent taxes during which Eugene had allegedly

stated that he “would take care of it.”

    On 29 June 2012, an employee at Eugene’s place of business

signed the return receipts for both Vera’s and Eugene’s copies

of the summons and complaint.              The County filed affidavits on 2

July 2012 with the Jackson County Clerk of Court showing proof

of service.

    On 14 August 2012, an entry of default was made by the

Clerk of Court, and the County thereafter filed a motion for

default judgment.        On 24 September 2012, the Honorable Tanya T.

Wallace       entered    a      default     judgment     against    Defendants.

Defendants did not participate in any of these proceedings.

2
  Although Vera was the sole owner of record of the Property, a
copy of the summons and complaint was also sent to Eugene based
on the County’s apparent belief that because he was Vera’s
husband, he might “have a marital expectant interest in the
[Property].”
                                              -4-
       On 1 October 2012, the County filed a notice of sale, and

on 23 October 2012, a sale was conducted at which the Property

was sold for $18,504.00 to Smoky Mtn. Land, Inc.                            On 7 November

2012,    the    clerk     of    court    entered       an     order    of    confirmation

concerning the sale.

       On 29 August 2013, Defendants filed a motion pursuant to

Rule    60(b)    to    set     aside    (1)    the    entry     of    default;   (2)   the

default judgment; and (3) the order of confirmation.                                 On 28

October 2013, Defendants’ motion was heard by Judge Marvin P.

Pope in Jackson County Superior Court.                       On 30 October 2013, the

trial    court        entered    an     order        denying    Defendants’       motion.

Defendants filed a timely notice of appeal.

                                        Analysis

       Defendants’       argument      on     appeal    is     that   the    trial   court

erred by denying their Rule 60(b) motion because they were never

properly served with             process and that, for this reason,                    the

entry of the default, the default judgment, and the order of

confirmation are all void.

       “N.C. Gen. Stat. § 1A-1, Rule 55(d) provides that a default

judgment may be set aside in accordance with N.C. Gen. Stat. §

1A-1, Rule 60(b).            Rule 60(b) states that the court may relieve

a party from a final judgment, order, or proceeding for the

following reasons: . . . (4) the judgment is void.                            Motions for
                                         -5-
relief from judgment are reviewed for an abuse of discretion.”

Coastal Fed. Credit Union v. Falls, 217 N.C. App. 100, 103, 718

S.E.2d    192,   194    (2011)    (internal    citation,    quotation   marks,

brackets, and ellipses omitted).

    A Rule 60(b) motion is the proper method of attacking a

final judgment which is void.            N.C.R. Civ. P.60(b)(4); see Wayne

Cty. v. Whitley, 72 N.C. App. 155, 157, 323 S.E.2d 458, 461

(1984) (“A . . . Rule 60(b)(4) motion seeks relief from a final

judgment or order which is void.”).

            Rule 60(b)(4) . . . allows the trial court
            to relieve a party from a final order if the
            judgment is void. . . . A judgment or order
            rendered without an essential element such
            as . . . proper service of process is void.
            . . . [A] void judgment is a legal nullity
            which may be attacked at any time . . . .

Van Engen v. Que Scientific, Inc., 151 N.C. App. 683, 689-90,

567 S.E.2d 179, 184 (2002) (internal citations, quotation marks,

brackets, and ellipses omitted).

    It is well settled “that a court may only obtain personal

jurisdiction over a defendant by the issuance of summons and

service of process by one of the statutorily specified methods.

Thus, absent valid service of process, a court does not acquire

personal jurisdiction over the defendant and the action must be

dismissed. . . . The purpose of the service requirement is to

provide   notice   to    the     party   against   whom    the   proceeding   or
                                   -6-
action is commenced and allow them an opportunity to answer or

otherwise plead.”     Fender v. Deaton, 130 N.C. App. 657, 659, 503

S.E.2d   707,   708   (1998)   (internal   citations   omitted),   disc.

review denied, 350 N.C. 94, 527 S.E.2d 666 (1999).

    The procedure for service of process upon natural persons

is set forth in N.C. Civil Procedure Rule 4(j):

           (j) Process — Manner of service to exercise
           personal jurisdiction. — In any action
           commenced in a court of this State having
           jurisdiction of the subject matter and
           grounds   for    personal  jurisdiction  as
           provided in G.S. 1-75.4, the manner of
           service of process within or without the
           State shall be as follows:

                 (1) Natural    Person.   —   Except  as
                 provided in subdivision (2) below, upon
                 a   natural  person   by   one  of  the
                 following:

                       a.   By delivering a copy of the
                       summons and of the complaint to
                       the natural person 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,
                                       -7-
                          registered  or   certified   mail,
                          return     receipt      requested,
                          addressed to the party to be
                          served, and delivering to the
                          addressee.

                          d.   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
                          party to be served, delivering to
                          the addressee, and obtaining a
                          delivery receipt. As used in this
                          sub-subdivision,         “delivery
                          receipt” includes an electronic or
                          facsimile receipt.

                          e.   By mailing a copy of the
                          summons and of the complaint by
                          signature confirmation as provided
                          by   the   United   States  Postal
                          Service, addressed to the party to
                          be served, and delivering to the
                          addressee.

N.C.R. Civ. P.4(j)(1)(a)-(e).

      In the present case, the County sent two copies of the

summons and complaint — one addressed to Vera and one addressed

to Eugene — to Eugene’s office by certified mail, return receipt

requested, where they were signed for by an employee.                         Upon

receiving    the   return    receipt,    the    County     filed    an   affidavit

claiming that both Defendants had been served.

      We conclude that there was no proper service of process as

to   Vera,   the   sole   owner   of    the    Property.      She    was   neither

personally served nor served at her residence.                In addition, the
                                          -8-
record establishes that Vera was not employed at her husband’s

business at the time that service was attempted on her there.

This    Court   has    made    clear     that       for   purposes     of    service    of

process, one spouse does not serve as an agent of the other

spouse.     See Williams v. Hartis, 18 N.C. App. 89, 92, 195 S.E.2d

806, 808-09 (1973) (holding that “when husband and wife were

named     defendants,        delivery    of     a     copy   of     the     summons    and

complaint to the husband with instructions to deliver the copy

to   defendant    wife       was   not   valid       service”      (internal       citation

omitted)).      Therefore, the County’s attempt to serve Vera at her

husband’s place of business was invalid.

       Furthermore, the fact that Vera may have been aware of the

County’s attempts to serve her is immaterial.                              See Stone v.

Hicks,    45    N.C.    App.       66,   67,    262       S.E.2d    318,     319    (1980)

(“Although both defendants may have had actual notice of the

lawsuit, such notice cannot supply constitutional validity to

service    unless      the    service     is    in    the    manner       prescribed    by

statute.” (internal citation omitted)).

       Accordingly, because Vera was never properly served, all

subsequent orders as to her are void.                        “The passage of time,

however great, does not affect the validity of a judgment; it

cannot render a void judgment valid.                      A nullity is a nullity,

and out of nothing nothing comes.                    Ex nihilo nihil fit is one
                                        -9-
maxim that admits of no exception.”               Jenkins v. Richmond Cty.,

99 N.C. App. 717, 721-22, 394 S.E.2d 258, 261 (1990) (internal

citations and quotation marks omitted), disc. review denied, 328

N.C. 572, 403 S.E.2d 512 (1991).               As such, we conclude that the

trial court abused its discretion by failing to grant the Rule

60(b) motion.3

      “If a judgment is set aside pursuant to Rule 60(b) . . .

and   the   judgment    or   any   part   thereof    has   been   collected     or

otherwise enforced, such restitution may be compelled as the

court directs.      Title to property sold under such judgment to a

purchaser in good faith is not thereby affected.”                      N.C. Gen.

Stat.   §   1-108   (2013).        We   have   interpreted     this   statute   as

“provid[ing] that the conveyance of title to such property, as

acquired    in   good   faith,     is   not    automatically    affected,   but,

title to such property may in fact be affected if the court

deems it necessary in the interest of justice.”                 Town of Cary v.

Stallings, 97 N.C. App. 484, 487, 389 S.E.2d 143, 145 (1990).4

3
  Because we have determined that Vera, the sole owner of the
Property, was never properly served, we need not address the
issue of whether the attempted service on Eugene at his office
was proper.
4
  In Stallings, the Town of Cary improperly served the original
owner of a parcel of real property with a summons and complaint
in an action to recover an assessment for improvements made to
the subject property’s curb and gutters.    Stallings, 97 N.C.
App. at 485-87, 389 S.E.2d at 144-45. After obtaining an entry
of default and a default judgment, the Town of Cary sold the
                               -10-
In the present case, we leave it to the trial court on remand to

determine the appropriate remedy in the interests of justice in

light of our decision reversing its denial of Defendants’ Rule

60(b) motion.

                             Conclusion

    For the reasons stated above, we reverse the order of the

trial court denying Defendants’ Rule 60(b) motion and remand for

further proceedings not inconsistent with this opinion.

    REVERSED AND REMANDED.

    Judges HUNTER, JR. and ERVIN concur.

    Report per Rule 30(e).




property at a foreclosure sale.    Id. at 485-86, 389 S.E.2d at
144.   Despite the fact that the property was purchased in good
faith by a third-party, the trial court determined, based on the
interests of justice, that title to the property should be
restored to the original owner.    Id. at 487-88, 389 S.E.2d at
145. On appeal, we affirmed the trial court’s ruling.     Id. at
487-88, 389 S.E.2d at 145-46.
