Chadbourn, Inc. v. Katz , 21 N.C. App. 284 ( 1974 )

204 S.E.2d 201 (1974) 21 N.C. App. 284

CHADBOURN, INC., a corporation
v.
Daniel KATZ and Brevard Realty Company, Inc., a corporation.

No. 7426SC236.

Court of Appeals of North Carolina.

April 17, 1974. Certiorari Allowed July 1, 1974.

Helms, Mulliss & Johnston, by E. Osborne Ayscue, Jr., and C. Marcus Harris, Charlotte, for plaintiff-appellee.

Waggoner, Hasty & Kratt, by William J. Waggoner, Charlotte, for defendant-appellant.

Certiorari Allowed by Supreme Court July 1, 1974.

BROCK, Chief Judge.

After argument of the appeal in this Court, plaintiff filed a motion to amend its complaint by deleting its claim and prayer for specific performance of the contract. That motion has been allowed by separate order.

Defendant argues that the trial court erred in denying defendant's motion to dismiss under Rule 12. Defendant contends that the trial court did not acquire jurisdiction over defendant in an in personam action because defendant was not personally served with process.

G.S. § 1-75.4(6)(a) provides: "A court of this State having jurisdiction of the subject matter has jurisdiction over a person served in an action pursuant to Rule 4(j) of the Rules of Civil Procedure under any of the following circumstances:

"(6) Local Property.—In any action which arises out of:

a. A promise, made anywhere to the plaintiff or to some third party for the plaintiff's benefit, by the defendant to create in either party an interest in, or protect, acquire, dispose of, use, rent, own, control or possess by either party real property situated in this State;. . .."

Plaintiff's complaint sufficiently alleges an agreement between the parties for Katz to acquire and plaintiff to dispose of real property in North Carolina, a tender of the deed and related documents specified in the agreement, and a failure of defendant to perform as set forth in the agreement.

G.S. § 1A-1, Rule 4(j)(9) provides: "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 shall be as follows:

"(9) Any party that cannot after due diligence be served within this State in the manner heretofore described in this section (j), or that is not an inhabitant of or found within this State,. . ., service upon the defendant may be made in the following manner:

"b. Any party subject to service of process under this subsection (9) may be served by mailing a copy of the summons and complaint, registered mail, return receipt requested, addressed to the party to be served. Service shall be complete on the day the summons and complaint are delivered to the addressee, . . ."

In Trust Company v. McDaniel, 18 N.C. App. 644, 197 S.E.2d 556, this Court, in summarizing the holdings of International Shoe Company v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95, McGee v. International Life Insurance Company, 355 U.S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223, and Hanson v. Denckla, 357 U.S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283, held that ". . . a single contract executed in North Carolina or to be performed in North Carolina may be a sufficient minimal contact in this State upon which to base in personam jurisdiction, with respect to the parties so contracting." The contract for the sale of real property executed in North Carolina concerning real property in North Carolina was sufficient minimal contact in this case on which to base in personam jurisdiction.

Service of process was made upon defendant at defendant's address by registered mail, return receipt requested, in accordance with G.S. § 1A-1, Rule 4(j) (9)(b).

We are of the opinion that the trial court has jurisdiction over the defendant by reason of the contract to convey land situated in North Carolina; that substituted service of process by registered mail, return receipt requested, was a proper means of acquiring personal jurisdiction over defendant; and that the requirements of due process and notice were afforded the foreign defendant by the substituted service of process in accordance with the North Carolina General Statutes.

No error.

MORRIS and CARSON, JJ., concur.