Jae Kyu Park v. Sleepy Creek Turkeys, Inc.

299 S.E.2d 670 (1983)

Jae Kyu PARK
v.
SLEEPY CREEK TURKEYS, INC., A North Carolina Corporation: "Red" Williford; Elmo Long; Katsuya Goto; Hiro Nakano; and American Chick Sexing Association, d/b/a Amchick.

No. 8210SC187.

Court of Appeals of North Carolina.

February 1, 1983.

Bode, Bode & Call by Robert V. Bode and Howard S. Kohn, Raleigh, for plaintiff-appellant.

Moore, Van Allen & Allen, Charlotte by Charles D. Case and Dean M. Harris, Raleigh, for defendant-appellee American Chick Sexing Ass'n, d/b/a Amchick.

EAGLES, Judge.

Two issues are raised in this appeal—(1) whether defendant Amchick was properly served with process in this action and (2) whether there are sufficient minimum contacts with this State to authorize in personam jurisdiction over defendant as a function of our long arm statute, G.S. 1-75.4, and as a matter of constitutional due process.

I.

Plaintiff contends that service of process is adequate because actual notice of the lawsuit was received by D.K. Nitta. We hold that service of process was defective in that plaintiff Park failed to comply with the mandatory requirements of G.S. 1A-1, Rule 4(j)(1) for service of process on a sole proprietorship, and attempted service instead on Amchick as an association under G.S. 1A-1, Rule 4(j)(8). American Chick Sexing Association, its assumed name to the contrary notwithstanding, is not an "unincorporated association" but is a sole proprietorship owned and operated by David K. Nitta. This is apparent from the first two lines of the printed "Subcontractor's Agreement" which was signed by plaintiff Park and which is at the heart of this dispute.

This agreement is made in Lansdale, Pennsylvania by and between David K. Nitta trading as AMERICAN CHICK SEXING ASSOCIATION (hereinafter called "Amchick") and Jae Kyu Park (hereinafter called "Subcontractor"). (Emphasis added.)

Plaintiff does not dispute the fact that defendant Amchick, though operating under an assumed name and being called an association, is not an association. But defendant Nitta, trading as Amchick, did not receive service of process as required under Rule 4(j)(1) "[B]y delivering a copy of the summons and of the complaint to him or by leaving copies at the defendant's dwelling house or usual place of abode...." The complaint and summons were sent by registered mail addressed to George Okazaki, executive manager of Amchick. The fact that D.K. Nitta signed the registered mail receipt for Okazaki and may have thereafter acquired actual notice of the lawsuit does not remedy the failure of plaintiff to address the complaint and summons to D.K. Nitta personally as required by Rule 4(j)(1).

"If a statute specifies that certain requirements must be complied with in the process of serving summons, failure to follow these requirements results in a failure of service." Lynch v. Lynch, 302 N.C. 189, 196, 274 S.E.2d 212, 218 (1980).

II.

Though our holding as to the service of process will uphold dismissal of this action against Amchick, we consider it appropriate to also address the jurisdictional question. Plaintiff contends that the trial court erred in dismissing the action for lack of jurisdiction over D.K. Nitta and Amchick. The findings of the trial judge that defendant Amchick was "not engaged in substantial activity" and that the subcontract "has no significant connection with" North Carolina are not supported by the evidence. There is ample evidence of "minimum contacts" between defendant Amchick and North Carolina, i.e., two long standing oral hatchery contracts between Amchick and North Carolina hatcheries, performance over an extended period from 1968 through 1980 of the Sleepy Creek contract in North Carolina, and the payment arrangements called for by the contract by which periodic payments of Park's earnings were routed from Sleepy Creek Hatchery in North Carolina to Amchick and subsequent payment by Amchick to Park in North Carolina. The evidence pertaining to the contract and its performance clearly demonstrates sufficient contacts with North Carolina to satisfy both the statutory requirements of G.S. 1-75.4 and the constitutional requirements of due process. Goldman v. Parkland, 7 N.C.App. 400, 173 S.E.2d 15 (1970). The trial judge erred in dismissing the action for lack of personal jurisdiction.

The trial judge's order dismissing the action for insufficiency of service of process was appropriate and is

Affirmed.

HEDRICK and JOHNSON, JJ., concur.