Appeal by defendant from order entered 20 February 2002 by
Judge Earl J. Fowler in Buncombe County Superior Court. Heard in
the Court of Appeals 29 January 2003.
Walter A. Dinteman, President, for plaintiff appellee.
BIGGERS & HUNTER, PLLC, by William T. Biggers, for defendant
appellant.
TIMMONS-GOODSON, Judge.
Edwards Publications, Inc. (“defendant”) appeals from an order
of the trial court granting North Carolina courts in personam
jurisdiction. For the reasons stated herein, we affirm the order
of the trial court.
MRI/Sales Consultants of Ashville, Inc. (“plaintiff”) is a
North Carolina corporation with its principal place of business in
Buncombe County, North Carolina. Defendant is a corporation
incorporated under the laws of the State of Iowa, and registered to
do business in the States of Wyoming, Michigan and South Carolina.
Defendant's principal place of business is Seneca, South Carolina.
Plaintiff is a recruiting firm, specializing in locating
candidates to fill positions in the publishing and printing
industries. On 25 January 2001, Michael Gibson (“Gibson”), anaccount executive employed with plaintiff, made an unsolicited
telephone call from North Carolina to defendant in South Carolina.
Gibson contacted Steven Edwards (“Steven”), vice-president of
defendant's corporation. Gibson offered to assist defendant in
locating personnel to fill positions at defendant's corporation,
specifically the newspaper division. As a result of the telephone
conversation, Jerry Edwards (“Edwards”) gave plaintiff a job search
assignment for six positions, none of which were located in North
Carolina. Following the telephone conversation in which plaintiff
was given the job search assignments, a letter was mailed to
defendant confirming the agreement between the parties,
establishing service fees and creating deadlines.
On 15 February 2001, Edwards contacted plaintiff seeking
assistance in finding a web pressman to work in defendant's
Michigan plant. Following the conversation, defendant was again
mailed a confirmation letter which contained the following
provision:
. . . .
Because we will be performing our services in
the State of North Carolina, its laws would be
applicable to our relationship, and its court
would have jurisdiction over both of us.
. . . .
If these terms do not reflect your
understanding of our agreement, please call us
immediately. Unless we provide you with a
modifying letter, we will rely on your
acceptance of referrals from us as
establishing that you have accepted these
terms.
. . . .
The job assignment to find a web pressman for the Michigan plant is
the underlying action of the matter before this Court.
On 7 March and 12 March 2001, plaintiff made arrangements for
a telephone interview between a candidate from New Hampshire and
the management of defendant's Michigan plant. As a result of the
telephone interview, plaintiff made arrangements, at defendant's
expense, for the candidate to travel from New Hampshire to visit
the Michigan facility. On 19 March 2001, plaintiff was notified by
defendant that an offer had been made to the candidate. Following
the notification, plaintiff mailed an invoice to defendant's
headquarters in South Carolina. The candidate accepted the offer
and was employed by defendant as a web pressman. In May 2001,
plaintiff called defendant concerning the unpaid invoice for
locating a web pressman to work at defendant's Michigan facility.
On 15 June 2001, defendant advised plaintiff that the web pressman
had been terminated and that defendant did not intend to pay the
invoice.
On 18 June 2001, plaintiff brought suit against defendant in
the District Court of Buncombe County, North Carolina, seeking
damages. In response to plaintiff's complaint, defendant filed a
motion to dismiss under North Carolina General Statutes § 1A-1,
Rule 12(b)(2) for lack of personal jurisdiction. Defendant pursued
the motion on the following grounds: (1) defendant is a corporation
organized and existing under the laws of the State of Iowa; (2)
defendant is not doing business in North Carolina; and (3)
defendant has never done business in the State of North Carolina soas to invoke the jurisdiction of the North Carolina courts. The
trial court denied defendant's motion and found that personal
“jurisdiction does in fact exist” over defendant. From this order,
defendant appeals.
__________________________
The dispositive issue before this Court is whether the trial
court erred in denying defendant's motion to dismiss for lack of
personal jurisdiction. For the reasons stated hereafter, we affirm
the order of the trial court.
“The standard of review of an order determining personal
jurisdiction is whether the findings of fact by the trial court are
supported by competent evidence in the record; if so, this Court
must affirm the order of the trial court.”
Replacements, Ltd. v.
Midwesterling, 133 N.C. App. 139, 140-41, 515 S.E.2d 46, 48 (1999).
We note that the trial court's order is devoid of any findings of
fact. Where no findings are made, proper findings are presumed,
and the role of the appellate court is to review the record for
competent evidence to support these presumed findings.
Bruggeman
v. Meditrust Acquisition Co., 138 N.C. App. 612, 615, 532 S.E.2d
215, 217-18,
disc. review denied, 353 N.C. 261, 546 S.E.2d 90
(2000).
The question of whether the trial court has personal
jurisdiction over a nonresident defendant involves a twofold
determination.
Fraser v. Littlejohn, 96 N.C. App. 377, 381, 386
S.E.2d 230, 233 (1989). First, the trial court must determine
whether the North Carolina long-arm statute allows jurisdictionover the defendant.
Id. If so, the trial court must then
determine whether the exercise of this power comports with the due
process requirements of the Fourteenth Amendment.
Id. The burden
is on the plaintiff to establish that one of the statutory grounds
for jurisdiction is applicable.
Stallings v. Hahn, 99 N.C. App.
213, 215, 392 S.E.2d 632, 633 (1990). The long-arm statute “is
liberally construed to find personal jurisdiction over nonresident
defendants to the full extent allowed by due process.”
DeArmon v.
B. Mears Corp., 67 N.C. App. 640, 643, 314 S.E.2d 124, 126 (1984),
reversed on other grounds, 312 N.C. 749, 325 S.E.2d 223 (1985).
We first address the issue of statutory authority
. Defendant
contends that since the underlying matter concerns a job located in
Michigan and a candidate from New Hampshire, the North Carolina
courts do not have personal jurisdiction. Defendant, however,
misapprehends the statutory requirement for a court to invoke
personal jurisdiction over a defendant. North Carolina's long-arm
statute provides for in personam jurisdiction in the following
actions:
. . . .
(5) Local Services, Goods or Contracts. -- In
any action which:
a. Arises out of a promise, made anywhere
to the plaintiff or to some third party
for the plaintiff's benefit, by the
defendant . . . to pay for services to be
performed in the State by the plaintiff;
or
b. Arises out of services actually
performed for the plaintiff by the
defendant within this State, or servicesactually performed for the defendant by
the plaintiff within this State if such
performance within this State was
authorized or ratified by the defendant .
. . .
. . . .
N.C. Gen. Stat. § 1-75.4(5)(d) (2001).
In the instant case, the services provided by plaintiff were
sufficient to bring defendant under the jurisdiction of the North
Carolina court. The record reveals that (1) defendant employed
plaintiff to locate candidates to fill available job positions
within defendant's corporation, (2) plaintiff's only office is
physically located in North Carolina, and (3) from that office
plaintiff's employees used desk, chairs, telephones, computers and
other equipment physically located in North Carolina, to search for
and locate candidates presented to defendant for the position of
web pressman at defendant's Michigan facility. Furthermore, the
terms of the services to be provided by plaintiff were memorialized
in a confirmation letter mailed to defendant, in which plaintiff
states “we will be performing our services in North Carolina.” The
record is devoid of evidence that defendant did not agree with the
terms expressed in the confirmation letter. The record shows that
by accepting candidates from plaintiff, defendant accepted the
terms of the confirmation letter and promised to pay for services
to be performed in North Carolina by plaintiff. Pursuant to North
Carolina's long-arm statute, services provided by plaintiff were
sufficient to bring defendant under the jurisdiction of the North
Carolina court. Having concluded that personal jurisdiction is authorized by
the long-arm statute, we now turn to the issue of due process.
See
Fraser, 96 N.C. App. at 381, 386 S.E.2d at 234. “When personal
jurisdiction is alleged to exist pursuant to the long-arm statute,
the question of statutory authority collapses into one inquiry --
whether defendant has the minimum contacts with North Carolina
necessary to meet the requirements of due process.”
Hiwassee
Stables, Inc. v. Cunningham,
135 N.C. App. 24, 27, 519 S.E.2d 317,
320 (1999). However, it is not necessary to conduct the two-step
determination when a party has validly consented to the
jurisdiction of a court.
Burger King Corp. v. Rudzewicz, 471 U.S.
462, 473 n.14, 85 L. Ed. 2d 528, 540 n.14 (1985) (stating that due
process is not offended by the enforcement of a consent to
jurisdiction provision that is obtained through free negotiations
and is not unreasonable or unjust).
In the case at bar, the language in the confirmation letter
clearly states that plaintiff will be performing services “in the
State of North Carolina, its laws would be applicable to our
relationship, and its courts would have jurisdiction over both of
us.” Typically, contracting parties use three types of provisions
to avoid litigation concerning jurisdiction and governing law: (1)
forum selection; (2) consent to jurisdiction; and (3) choice of
law.
Corbin Russwin, Inc. v. Alexander's Hdwe., Inc., 147 N.C.
App. 722, 726, 556 S.E.2d 592, 596 (2001).
The first type, the choice of law provision,
names a particular state and provides that the
substantive laws of that jurisdiction will be
used to determine the validity andconstruction of the contract, regardless of
any conflicts between the laws of the named
state and the state in which the case is
litigated.
The second type, the consent to jurisdiction
provision, concerns the submission of a party
or parties to a named court or state for the
exercise of personal jurisdiction over the
party or parties consenting thereto. By
consenting to the jurisdiction of a particular
court or state, the contracting party
authorizes that court or state to act against
him.
A third type, a true forum selection
provision, goes one step further than a
consent to jurisdiction provision. A forum
selection provision designates a particular
state or court as the jurisdiction in which
the parties will litigate disputes arising out
of the contract and their contractual
relationship.
Johnston County v. R. N. Rouse & Co., 331 N.C. 88, 92-93, 414
S.E.2d 30, 33 (1992) (citations omitted).
“Due to the varying language used by parties drafting these
clauses and the tendency to combine such clauses in one contractual
provision, the courts have often confused the different types of
clauses.”
Id. at 93, 414 S.E.2d at 33. The following guidance has
been supplied by one commentator who recognized the confusion faced
by many courts:
(1) A typical forum-selection clause might
read: “[B]oth parties agree that only the New
York Courts shall have jurisdiction over this
contract and any controversies arising out of
this contract.” . . . .
(2) A . . . “consent to jurisdiction” clause[]
merely specifies a court empowered to hear the
litigation, in effect waiving any objection to
personal jurisdiction or venue. Such a clause
might provide: “[T]he parties submit to the
jurisdiction of the courts of New York.” Sucha clause is “permissive” since it allows the
parties to air any dispute in that court,
without requiring them to do so.
(3) . . . A typical choice-of-law provision
provides: “This agreement shall be governed
by, and construed in accordance with, the law
of the State of New York.”
Id.
(non-numbered alterations in original).
Here, we are concerned with a consent to jurisdiction clause.
The confirmation letter states that the laws of North Carolina will
“be applicable to [the] relationship, and its courts [will] have
jurisdiction over both [plaintiff and defendant].” This provision
is similar to the consent of jurisdiction example supplied in
Johnston County. The confirmation letter further states that
plaintiff will “rely on [defendant's] acceptance of referrals . .
. as establishing that [defendant] accept[s] [the] terms [of the
letter].” Therefore, it is not necessary for this Court to
determine whether the long-arm statute comports with due process
requirements, because defendant consented to the jurisdiction of
the North Carolina court. We conclude that the trial court's order
properly supports its conclusion that personal jurisdiction did
exist over defendant.
The order of the trial court is hereby
Affirmed.
Judges TYSON and LEVINSON concur.
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