When Service of Process Becomes Abuse by Joseph Laizure

Service of process is fundamental to our system of civil justice. Every party to a civil action or special proceeding in North Carolina is entitled to notice of the action and an opportunity to be heard before an impartial judicial official. Here’s a basic question: how does a person, a corporation, or a governmental body know whether they are being sued, and if so, how long they have to respond to the lawsuit? Receiving a demand letter written by a lawyer is not enough; lawyers send scary letters without filing lawsuits all the time. Neither is it enough to receive a signed complaint. A signed complaint does not necessarily bring a claim before the court. Even receiving a complaint bearing the file-stamp of the clerk of superior court does not inform a party how long they have to answer. Enter the civil summons. This is a crucial document that informs individuals and entities that they have been made a party to a lawsuit and gives them a certain number of days to respond. The general civil summons form in North Carolina includes a warning symbol and the bold-type statement: “You have been sued!”   Importantly, the civil summons “runs in the name of the State,” Rule 4(b), and invokes the authority of the clerk of superior court. It is issued by a clerk and not by a party to the litigation. Finally, service of process is one element of personal jurisdiction: the ability of the court to enter a judgment binding a party A recent opinion published by the North Carolina Court of Appeals (NCCOA) clarifies that litigants may be liable if they misuse the authority of the court after it has issued process. In Ponder v. Been, ___ N.C. App. ___ (Jul. 2, 2025), the plaintiff stated a claim for alienation of affection: he alleged that he had enjoyed a loving and affectionate relationship with his wife and that the defendant, located in Florida, had destroyed that love and affection. Alienation of affection is a “heart balm” action abolished in many states but still a viable cause of action in North Carolina. This is actually the second time this case has come before the Court of Appeals. In the first appeal the defendant moved to dismiss the case for lack of personal jurisdiction, that is, he argued that a North Carolina court should not be able to enter a judgment against him because he neither owned property in, nor engaged in business in, nor had traveled to North Carolina in more than 30 years. Ponder v. Been, COA19-1021, Defendant-Appellant’s Brief, at 4. While a majority of the NCCOA disagreed and held that the defendant had not availed himself of the laws of North Carolina, Judge Stroud filed a dissenting opinion that would have held that the defendant’s contacts with plaintiff’s then-wife while she was located in North Carolina were sufficient to subject the defendant to personal jurisdiction in North Carolina. The North Carolina Supreme Court (NCSC) adopted the dissent, reversing the Court of Appeals and allowing the lawsuit to proceed. Ponder v. Been, 380 N.C. 570 (2022). Compelled to defend himself against the alienation of affection claim, the defendant filed a counterclaim against the plaintiff for abuse of process. As the NCSC put it eighty years ago, “[o]ne who uses legal process to compel a person to do some collateral act not within the scope of the process or for the purpose of oppression or annoyance is liable in damages.” Melton v. Rickman, 225 N.C. 700, 703 (1945). Abuse of process is a tort based on “misuse of legal process for an ulterior purpose.” Id. For example, a person attempting to have another arrested under criminal indictment to pay a civil debt is abuse of process. Ledford v. Smith, 212 N.C. 447, 447 (1937). See also Smith v. Somers, 213 N.C. 209, 209 (1938). In his counterclaim, the defendant alleged that the plaintiff appeared in person at the defendant’s home in Florida “in connection with the service of process” in the alienation of affection suit. Ponder v. Been, 17-CVS-17308, Answer and Counterclaim 12 at ¶ 3. The defendant further alleged that the plaintiff was intoxicated and that he yelled at his ex-wife and threatened to harm her. A Florida court entered a domestic violence protective order against the plaintiff as a result of his conduct. Some weeks after the incident at defendant’s home, a private process server working for plaintiff served the defendant at a football game. At trial, the defendant obtained a jury verdict in his favor, the jury finding that the plaintiff’s actions in attempting service of the summons and alienation of affection complaint intentionally used that process to accomplish an ulterior purpose. The jury awarded defendant compensatory damages of $932,042.00 and punitive damages of $606,502.31. The plaintiff asked the court to disregard the jury verdict and award the defendant nothing. The trial court granted the plaintiff’s motion and the defendant again appealed.  

Let’s talk mechanics

Rule 4 of the North Carolina Rules of Civil Procedure governs the issuance and service of process in North Carolina. This rule applies in every civil action and in many kinds of special proceedings. This rule also features important differences from service under other rules or statutes: Rule 5(b), for instance, allows service of documents between parties in a lawsuit using the court’s Integrated Case Management System, first-class mail, or even a simple email in some situations. Rule 4 does not permit these methods because its purpose is to alert a party that a lawsuit has commenced against them. This serious purpose requires formal notice by one of several methods designed to ensure that the party knows they have been commanded to come to court and answer a complaint or petition. In North Carolina, the sheriff of the county where service will be made is the proper person to hand-deliver a summons and complaint to a party. G.S. 1A-1, Rule 4(a). Only if the sheriff is unable to complete service can a litigant use a private process server or other non-party. And it is important that only non-parties are allowed to serve process, as this case illustrates. A party trying to serve another with process can also use certified mail, return receipt requested, a number of private delivery services designated by the Secretary of the Treasury, including some (but not all!) services offered by UPS, FedEx, and DHL. See BIOMILQ, Inc. v. Guiliano, 2024 NCBC 2 v. at ¶ 30. Service of a complaint and summons by email is specifically excluded under G.S. 1A-1, Rule 4(j6). What these methods have in common is the use of a delivery receipt signed by the recipient that the party attempting service can later bring to court in case of a challenge to service or in support of a motion for default judgment. If other methods of service have failed, a party can have other parties served by publishing a notice in a newspaper qualified for legal advertising, as long as that party uses “all resources reasonably available to her in attempting to locate” the party to be served. Builders Mut. Ins. Co. v. Neibel, 293 N.C. App. 1, 6 (2024), aff’d, 386 N.C. 666 (2024). All of these methods are designed to impart the seriousness of the civil action or special proceeding to the party being served. A summons is not merely an invitation to negotiate. It is not a demand by the other party’s attorney. It is the means by which the court itself can get the attention of a party whose rights are in jeopardy, and the means by which that party can learn where and when it must defend itself. That seriousness of service of process creates the possibility of abuse. With this background in mind, let’s look at what happened on the second appeal.  

Abuse must follow the issuance of process

Once again before the NCCOA, the issue this time was whether there was “more than a scintilla” of evidence that the plaintiff satisfied both elements of a claim for abuse of process: that the defendant 1) misused the process of the court 2) for an ulterior purpose, and in doing so harmed the defendant. Ponder, slip op. at 9. The technical name for the trial court motion used by the plaintiff here is a motion for judgment notwithstanding the verdict under G.S. 1A-1, Rule 50(b), usually abbreviated as JNOV, from judgment non-obstante veredicto. A motion for JNOV is a renewal of a motion for directed verdict made before the jury deliberated. Both motions do almost the same thing but at different times: they ask the court to decide whether there is enough evidence for the jury to decide the case. If not, the moving party prevails as a matter of law. In simpler terms, a motion for directed verdict or JNOV allows the judge to take the case away from the jury if the evidence is so lopsided that there is no role for the jury to play in weighing that evidence. In another recent case involving a motion for JNOV, the NCSC put it succinctly: “[t]he purpose of a motion for JNOV is to test the sufficiency of the evidence on which the jury relied and to enter a judgment contrary to the jury’s verdict if, as a matter of law, the evidence presented does not support that verdict.” Vanguard Pai Lung, LLC v. Moody, 387 N.C. 376, 379 (Mar. 21, 2025). The NCCOA notes that the plaintiff “essentially concedes” in his appellate brief that he filed the alienation of affection claim with an ulterior purpose: to harass his ex-wife. Ponder, COA24-552, slip op. at 13. Even so, “[e]vil purpose alone is not sufficient.” Melton, 225 N.C. at 703. Filing a lawsuit with no purpose but to bother, inconvenience, or embarrass someone else may constitute malicious prosecution. See Fox v. City of Greensboro, 279 N.C.App. 301, 326 (2021). Doing so will also subject a party or attorney to sanctions under Rule of Civil Procedure 11(a). But these are not the same things as abuse of process. Abuse of process requires misuse of the process of the court after it has been issued. This element involves not a mental state but an act, and is satisfied if “once the prior proceeding was initiated, the defendant committed some wilful act whereby he sought to use the existence of the proceeding to gain advantage of the plaintiff in respect to some collateral matter.” Fuhs v. Fuhs, 245 N.C. App. 367, 376 (2016) (cleaned up). In Ponder, the NCCOA held that a jury could reasonably conclude that plaintiff had used the issuance of a civil summons as an excuse to confront his ex-wife and to assault the defendant in Florida and the trial court erroneously granted plaintiff’s motion. Under the North Carolina Rules of Civil Procedure, the plaintiff was not allowed to serve the defendant with the summons and complaint himself, and even if he was trying to assist the private process server he had hired, doing so would not require him to trespass on the defendant’s property. The Court also noted that the plaintiff engaged in these acts after the defendant’s attorney had offered to accept service. Even though the plaintiff had presented evidence at trial that contradicted the defendant’s version of events, on appeal from a motion for JNOV, every conflict in the evidence is resolved in the favor of the non-moving party. In other words, if there are pieces of evidence that contradict each other, the party for whom the jury decided wins the dispute. While the court must take the case away from the jury if there is essentially no evidence that the jury could have relied on to render its verdict, if there is more than a scintilla of evidence, the court must allow the jury to do what it was impaneled to do: weigh the evidence, find the facts, and render a verdict. Ponder v. Been shows that it is important for parties, especially in high-conflict litigation, to stay at arms-length from service of process. Attorneys should advise their clients that Rule 4 must be strictly observed, and if in-person delivery is to be attempted outside the state of North Carolina, hiring a private process server to perform the actual service is a required and a wise move.  

Bonus question: what is a scintilla, anyway?

In Morris v. Scenera Research, LLC, 368 N.C. 857, 861 (2016), the NCSC stated that a scintilla is “very slight evidence.” To present more than a scintilla, a party must “do more than raise a suspicion, conjecture, guess, surmise, or speculation.” Id. If an issue is raised in the pleadings and supported by the evidence, it must be submitted to the jury. “An issue is supported by the evidence when there is … such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” In re Will of Allen, 148 N.C.App. 526, 528–29 (2002). I take this to mean that a scintilla of evidence might refer to a subjective hunch, but more than a scintilla of evidence requires something objective.