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NO. COA01-1110 NORTH CAROLINA COURT OF APPEALS Filed: 06 August 2002 LEOLA BOYD SOWELL v. KRISTOPHER LYNN CLARK and WILLIAM EDDIE CLARK Appeal by defendant Kristopher Lynn Clark from judgments entered 12 April 2001 and 25 June 2001 by Judges Raymond Warren and Ronald K. Payne, respectively, in Mecklenburg County Superior Court. Heard in the Court of Appeals 22 May 2002.

Thomas D. Windsor for plaintiff-appellee. Hedrick, Eatman, Gardner & Kincheloe, LLP, by Allen C. Smith and C. J. Childers for defendant-appellant. THOMAS, Judge. 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

-2to 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

-3attorney fees as part of costs pursuant to N.C. Gen. Stat.

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