I. Factual and Procedural Background
¶ 1 Plaintiff-Appellee Inrock Drilling Systems, Inc., (“Inrock” or “Plaintiff”) is a Texas corporation. Defendant-Appellant CMP Technologies, Inc., (“CMP” or “Defendant”) is a North Carolina corporation. Defendant contracted with Plaintiff for the lease of heavy equipment and the assistance of an operating technician.
¶ 2 Defendant used the equipment and the services of the technician as contracted without complaint. When Defendant failed to remit payment to Plaintiff, Plaintiff obtained a default judgment in Texas. Defendants registered agent did not sign for the Texas Secretary of States certified mailing; however, Defendant and Defendants counsel requested and received copies of court filings and participated in settlement negotiations. Settlement negotiations were unsuccessful.
¶ 3 Plaintiff sought to enforce the Texas judgment in North Carolina under the Full Faith and Credit Clause. Plaintiffs counsel filed a Notice of Filing of Foreign Judgment in connection with the Texas default judgment. First, Plaintiff attempted to serve process on Defendant via certified mail at the address registered with the North Carolina Secretary of State. Certified mail sent to the registered address was returned unsigned. The building at the registered address was not the principal place of business of Defendant but was rented to another business. Plaintiffs counsel learned the building was rented to another business by placing a phone call to the business located at the registered address. As part of a due diligence inquiry, Plaintiffs counsel attempted to procure the correct address for Defendant from Defendants counsel. Defendants counsel declined to provide an address where Defendant could be served and Defendants counsel would not respond, when asked, whether they would accept service on Defendants behalf. Plaintiffs counsel stated at the hearing that she served process on Defendant via the North Carolina Secretary of States Office.
¶ 4 Defendant filed a motion for relief, notice of defenses, and motion to dismiss pursuant to N.C. Gen. Stat § 1A-1, Rules 12(b)(2), (4), (5), and (6) for lack of personal jurisdiction, insufficient process, insufficient service of process, and failure to state a claim upon which relief may be granted. Plaintiff filed a motion to enforce the foreign judgment. The Honorable Mary Ann Tally heard the matter in Harnett County Superior Court. Judge Tally denied Defendants motion to dismiss and granted Plaintiffs motion to enforce the foreign judgment.
¶ 5 On appeal, the parties stipulated that personal jurisdiction was proper in North Carolina Superior Court.
II. Issues
¶ 6 Defendant argues on appeal the trial court erred by granting Plaintiffs motion to enforce foreign judgment and denying Defendants motion to dismiss.
III. Jurisdiction
¶ 7 Appeal lies in this Court as a matter of right pursuant to N.C. Gen. Stat. § 7A-27(b) (2019).
IV. Standard of Review
¶ 8 “We review de novo questions of law implicated by the denial of a motion to dismiss for insufficiency of service of process ․ The trial courts factual determinations are binding on this court if supported by competent evidence.” New Hanover Cty. Child Support Enft ex rel. Beatty v. Greenfield, 219 N.C. App. 531, 533, 723 S.E.2d 790, 792 (2012) (citing A.H. Beck Found. Co. v. Jones Bros., 166 N.C. App. 672, 678, 603 S.E.2d 819, 823 (2004) (reviewing the denial of a motion to dismiss for lack of personal jurisdiction)).
V. Analysis
¶ 9 Defendant appeals the denial of its motion to dismiss, but only presents an argument regarding its motion to dismiss pursuant to N.C. Gen. Stat. § 1A-1 Rule 12(b)(5) for insufficient service of process. Plaintiff did not file a brief for this Courts consideration. It is not the role of this court “to create an appeal for an appellant.” Viar v. N.C. Dept of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005). “That burden rests solely with the appellant.” Krause v. RK Motors, LLC, 252 N.C. App. 135, 140, 797 S.E.2d 335, 339 (2017). “Issues not presented in a partys brief, or in support of which no reason or argument is stated, will be taken as abandoned.” N.C. R. App. P. 28(b)(6) (2019). Therefore, this Court will not address the trial courts denial of Defendants motion to dismiss pursuant to N.C. Gen. Stat. § 1A-1 Rule 12(b)(2), (4), or (6). For the following reasons, we vacate both the trial courts granting of Plaintiffs motion to enforce foreign judgment and the trial courts denial of Defendants motion to dismiss pursuant to N.C. Gen. Stat. § 1A-1 Rule 12(b)(5).
¶ 10 Plaintiffs counsel represented to the trial court that process was served through the North Carolina Secretary of State. North Carolina law permitted Plaintiff to serve Defendant through the Secretary of State.
“When an entity required to maintain a registered office and registered agent under G.S. § 55D-30 fails to appoint or maintain a registered agent in this State, or when its registered agent cannot with due diligence be found at the registered office ․ the Secretary of State becomes an agent of the entity upon whom any such process, notice or demand may be served. Service ․ is made by delivering to and leaving with the Secretary of State or any clerk authorized by the Secretary of State to accept service of process ․ Service on an entity under this subsection is effective for all purposes from and after the date of the service on the Secretary of State.”
N.C. Gen. Stat. § 55D-33; see also Smith v. Jones, 183 N.C. App. 643, 647, 645 S.E.2d 198, 201 (2007) (holding the denial of an LLCs motion to set aside a default judgment based on alleged improper substituted service on the Secretary of State was proper because the LLCs failure to receive actual notice of the lawsuit was due to the LLCs own failure to properly maintain a registered office; only after several attempts to serve the LLC by serving the registered agent and by mail failed, was process served on the Secretary of State).
¶ 11 In this case, the trial court found as fact that Plaintiff “presented evidence of four instances where Defendants Registered Agent failed to sign for certified mail.” Plaintiffs counsel represented to the trial court that she was unsuccessful in locating the correct address for Defendant after an attempt to serve the registered agent at the address identified on the North Carolina Secretary of States website, after requesting the correct address from Defendants counsel, and finally, after inquiring whether Defendants counsel would accept service of process on Defendants behalf. Plaintiffs counsel stated at the hearing that after exhausting options and exercising due diligence, process was served via North Carolina Secretary of State pursuant to N.C. Gen. Stat. § 55D-33.
¶ 12 Defendant alleges in its brief, however, Plaintiffs failure to file an affidavit of service in the manner prescribed by N.C. Gen. Stat. § 1-75.10 is fatal. We agree. N.C. Gen. Stat. § 1-75.10 provides:
“[w]here the defendant appears in the action and challenges the service of the summons upon him, proof of the service of process shall be as follows: ․
(4) Service by Registered or Certified Mail. - In the case of service by registered or certified mail, by affidavit of the serving party averring:
a. That a copy of the summons and complaint was deposited in the post office for mailing by registered or certified mail, return receipt requested;
b. That it was in fact received as evidenced by the attached registry receipt or other evidence satisfactory to the court of delivery to the addressee; and
c. That the genuine receipt or other evidence of delivery is attached.
N.C. Gen. Stat. § 1-75.10(a)(4) (2019).
¶ 13 In this case, Plaintiff was relegated to serving process on Defendant via the North Carolina Secretary of State due to Defendants failure to provide an accurate address and registered agent where process could be served. Service upon Defendant through the North Carolina Secretary of State was therefore proper. However, an affidavit meeting the requirements of N.C. Gen. Stat. § 1-75.10(a)(4) was necessary. Per N.C. Gen. Stat. § 55D-33, the Secretary of State was “an agent of the entity upon whom any such process, notice or demand may be served.” N.C. Gen. Stat. § 55D-33(b).
¶ 14 Plaintiffs counsel represented to the trial court such service was made. The transcript reflects Defendants counsel never claimed Defendant had not received copies of the summons and complaint from the North Carolina Secretary of State. Yet, North Carolina law provides it was Plaintiffs burden to submit an affidavit to the trial court stating process was served upon the North Carolina Secretary of State. N.C. Gen. Stat. § 1-75.10(a)(4).
¶ 15 While such an affidavit from the Plaintiff stating service was effectuated upon the North Carolina Secretary of State may have been presented to the presiding judge at the hearing, no such affidavit of service is found in the record on appeal. Plaintiff was required by statute to produce and file an affidavit reflecting service of process upon the North Carolina Secretary of State. See N.C. Gen. Stat. § 1-75.10(a)(4). Therefore, based on the evidence in the record, we cannot say the trial court properly denied Defendants motion to dismiss for insufficient service of process.
VI. Conclusion
¶ 16 The record in this case is insufficient to permit this Court to determine that the trial court properly denied Defendants motion to dismiss for insufficient service of process. Therefore, we vacate the trial courts action in granting Plaintiffs motion to enforce foreign judgment and remand the matter to the trial court for further consideration of the issue of the missing affidavit of service.
VACATED AND REMANDED.
Report per Rule 30(e).
CARPENTER, Judge.
Judges HAMPSON and JACKSON concur.