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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STEVE CARSON and PATTIE CARSON, Plaintiffs v. KENNETH R. BRODIN
and MASONITE CORPORATION, Defendants
Filed: 16 September 2003
1. Appeal and Error_appealability_denial of motion to dismiss_challenge to
The denial of a motion to dismiss was immediately appealable where the motion
specifically challenged the jurisdiction of the court over defendant's person. N.C.G.S. § 1-
2. Jurisdiction_long-arm_contract to build house in Virginia
Plaintiffs sufficiently alleged contacts with North Carolina to give the court personal
jurisdiction over defendant in an action arising from a contract with a Greensboro couple to build
a house in Virginia. N.C.G.S. § 1-75.4(4)(a).
3. Jurisdiction_minimum contacts_contract to build house in Virginia
There were sufficient minimum contacts to establish specific jurisdiction and satisfy due
process where defendant entered into a contract with North Carolina residents to build a house in
Virginia; that contract was executed in North Carolina; defendant made numerous telephone calls
and mailings to North Carolina during the contract negotiations and throughout the three-year
construction period; defendant visited plaintiffs in North Carolina two or three times; and
defendant sent bills to North Carolina which were paid from plaintiffs' North Carolina bank
Appeal by defendant Kenneth R. Brodin from an order entered 26
June 2002 by Judge W. Douglas Albright in Superior Court in
Guilford County. Heard in the Court of Appeals 4 June 2003.
Pinto, Coates, Kyre & Brown, P.L.L.C., by David L. Brown and
Deborah J. Bowers, for defendant-appellant Kenneth R. Brodin.
Forman Rossabi Black, P.A., by T. Keith Black, for plaintiffs-
Defendant Kenneth R. Brodin appeals the trial court's denial
of his motion to dismiss for lack of personal jurisdiction. Forthe reasons set forth below, we affirm the decision of the trial
Plaintiffs Steve and Pattie Carson are residents of Guilford
County, North Carolina. In November 1993, they decided to build a
vacation home in Virginia. They entered into a contract with
defendant, a Virginia resident, to construct a home in the Water's
Edge development on Smith Mountain Lake in Franklin County,
The Water's Edge developer maintains a builder referral list
for individuals who are interested in purchasing a lot in the
community and having a qualified local builder build their
residence. Prior to November 1993, defendant was listed as a
qualified builder on the referral list. According to defendant's
affidavit, this referral list was the full extent of his attempts
to market his services to potential clients. His clients are
typically referred to him by others based on his reputation, and he
obtains clients primarily through business referrals and word of
mouth. He has never had any offices, employees, or sales
representatives in North Carolina, and he has never marketed his
services in North Carolina.
Plaintiffs learned about defendant by consulting the builder
referral list in Virginia. The initial contact between the parties
came from plaintiffs and occurred in Virginia in November 1993.
Before this contact, defendant had never spoken to plaintiffs, nor
had he attempted to solicit or market his services to them. In November 1993, plaintiffs went to Virginia and signed a
contract with defendant for construction of their house. After
problems developed with the lot that plaintiffs had purchased, they
traded lots with the developer. Defendant executed a contract to
build on the new lot and mailed it to plaintiffs in North Carolina.
Plaintiffs signed the new contract in North Carolina and mailed it
back to defendant.
After the contract was signed, defendant visited plaintiffs in
North Carolina at least twice and possibly three times to discuss
the construction project. Defendant also telephoned plaintiffs in
North Carolina on numerous occasions. Additionally, defendant
mailed invoices to plaintiffs in North Carolina, and plaintiffs
sent payments from their bank account in North Carolina. Defendant
completed construction on the home in July 1996.
In June 2001, plaintiffs sued defendant for breach of
contract, breach of warranty, and negligence, all relating to the
construction of their home in Virginia. Plaintiffs later amended
the complaint to add Masonite Corporation (Masonite) as a
defendant and to allege additional claims for relief against both
defendant and Masonite. In August 2001, Masonite served a notice,
pursuant to 28 U.S.C. § 1441, to remove the action to the United
States District Court for the Middle District of North Carolina.
Also in August 2001, defendant moved to dismiss, to transfer venue,
and filed an answer to the amended complaint in the United States
District Court. Along with the motion to dismiss, defendant filed
an affidavit addressing his contention that his contacts in NorthCarolina were not sufficient to give the state personal
jurisdiction over him.
In September 2001, plaintiffs filed a motion to remand the
case to Guilford County Superior Court. The magistrate judge
recommended that plaintiffs' motion be granted, and the case was
remanded to state court on 4 February 2002. On 2 May 2002,
defendant noticed a hearing on his motion to dismiss, which the
parties orally argued on 4 June 2002. The trial judge denied the
motion, and defendant now appeals.
 Before addressing the merits of defendant's claim, we note
that, although defendant is appealing from the denial of a motion
to dismiss, his appeal is properly before us. N.C. Gen. Stat. § 1-
277 provides that:
(b) Any interested party shall have the
right of immediate appeal from an adverse
ruling as to the jurisdiction of the court
over the person or property of the defendant
or such party may preserve his exception for
determination upon any subsequent appeal in
N.C. Gen. Stat. § 1-277(b) (2001). Defendant's motion specifically
challenges the jurisdiction of the court over defendant's person
and is thus immediately appealable. Defendant contends that the
trial court erred by denying his motion to dismiss because his
contacts were not sufficient with North Carolina to give the North
Carolina court jurisdiction. We disagree.
 A court must engage in a two-part inquiry to determine
whether it has personal jurisdiction over a non-resident defendant.
Better Business Forms, Inc. v. Davis, 120 N.C. App. 498, 500, 462S.E.2d 832, 833 (1995). First, the court must determine whether
the North Carolina long-arm statute authorizes jurisdiction over
the defendant. If it does, the court must then determine whether
the exercise of jurisdiction over the defendant is consistent with
due process. 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 to be liberally construed in favor
of finding jurisdiction. Starco, Inc. v. AMG Bonding and Ins.
Services, 124 N.C. App. 332, 338, 477 S.E.2d 211, 216 (1996).
Plaintiffs contend that the courts of this State have
jurisdiction over defendant under the following provisions of the
North Carolina long-arm statute:
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:
. . . .
(4) Local Injury; Foreign Act. -- In any
action for wrongful death occurring
within this State or in any action
claiming injury to person or
property within this State arising
out of an act or omission outside
this State by the defendant,
provided in addition that at or
about the time of the injury either:
(a) Solicitation or services activities
were carried on within this State by
or on behalf of the defendant[.]
N.C. Gen. Stat. § 1-75.4 (2001).
In order for Section 1-75.4(4)(a) to apply, the plaintiff must
establish: 1) an action claiming injury to a North Carolinaperson or property; 2) that the alleged injury arose from
activities by the defendant outside of North Carolina; and 3) that
the defendant was engaging in solicitation or services within North
Carolina 'at or about the time of the injury.' Fran's Pecans,
Inc. v. Greene, 134 N.C. App. 110, 113, 516 S.E.2d 647, 649-50
(1999) (quoting N.C. Gen. Stat. § 1-75.4(4)). The statute does not
require there to be evidence of proof of such injury; the plaintiff
need only allege an injury. Godwin v. Walls, 118 N.C. App. 341,
349, 455 S.E.2d 473, 480 (1995), disc. review allowed, 341 N.C.
419, 461 S.E.2d 757 (1995).
The amended complaint contains the following pertinent
5. Prior to the signing of the
contract, Brodin made numerous calls into the
state of North Carolina to confer with
Plaintiff and, on at least one occasion,
visited the state of North Carolina to discuss
and view various designs of homes located in
Greensboro, North Carolina. Brodin mailed the
construction contract into the state of North
Carolina for review by Plaintiffs, where it
was ultimately signed. . . .
In paragraphs 5, 14, 18, 25, 30, 39, 44, and 50, plaintiffs allege
as to the enumerated claims that they have been damaged and have
incurred or have suffered damages resulting from defendant's
The term 'injury to the person or property' 'should be
given a broad meaning consistent with the legislative intent to
enlarge the concept of personal jurisdiction to the limits of
fairness and due process, which negates the intent to limit the
actions thereunder to traditional claims for bodily injury and
property damages.' Godwin, 118 N.C. App. at 349, 455 S.E.2d at480 (quoting Sherwood v. Sherwood, 29 N.C. App. 112, 115, 223
S.E.2d 509, 512 (1976)). By way of example, this Court has
acknowledged that actions for damages for alienation of affections
and criminal conversation constitute injury to person or property
as denoted by N.C. Gen. Stat. § 1-75.4(3). Golding v. Taylor, 19
N.C. App. 245, 247, 198 S.E.2d 478, 479, cert. denied, 284 N.C.
121, 199 S.E.2d 659 (1973). We also have concluded that claims for
loss of potential profits and damage to business reputation
constitute injury under Section 1-75.4(4)(a). Fran's Pecans, 134
N.C. App. at 113, 516 S.E.2d at 650 (citing Vishay Intertechnology,
Inc. v. Delta International Corp., 696 F.2d 1062, 1067 (4th Cir.
The allegations of the amended complaint are sufficient to
bring plaintiffs' claim within the terms of Section 1-75.4(4)(a).
The amended complaint alleges injury in the form of losses to
plaintiffs, residents of North Carolina, as a result of breach of
contract, breach of express warranty, breach of the implied
warranty of habitability, breach of the implied warranty of
merchantability, breach of the implied warranty of fitness for a
particular purpose, and negligence. Moreover, the complaint
alleges that these local injuries were the result of acts or
omissions by defendant outside of North Carolina. In addition, as
required by the statute, the complaint alleges that defendant
engaged in [s]olicitation or services activities . . . carried on
within this State, N.C. Gen. Stat. § 1075.4(4)(a), where it
indicates that defendant negotiated and contracted with plaintiffsto build a house and by repeatedly visiting, telephoning, and
billing them in North Carolina to carry out that contract.
Finally, under Section 1.75-4(4), a defendant need only be
carrying on solicitation or services within North Carolina at or
about the time of the injury. Statutes used to establish personal
jurisdiction are to be liberally construed in favor of establishing
the existence of personal jurisdiction. Inspirational Network,
Inc. v. Combs, 131 N.C. App. 231, 235, 506 S.E.2d 754, 757 (1998).
Here, as indicated above, plaintiffs alleged that defendant made
two or three visits to North Carolina in furtherance of the
building of plaintiffs' home and made numerous phone calls to
plaintiffs in North Carolina. These activities were alleged to
have contributed to plaintiffs' injury and are proximate enough in
time to fulfill the statute's requirements. Fran's Pecans, 134
N.C. App. at 113, 516 S.E.2d at 650. We conclude that plaintiffs
sufficiently alleged contacts with the state to give the court
personal jurisdiction over defendant. N.C. Gen. Stat. §
 We next consider whether the exercise of in personam
jurisdiction satisfies due process, not offending 'traditional
notions of fair play and substantial justice.' International Shoe
Co. v. Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 102 (1945)
(quoting Milliken v. Meyer, 311 U.S. 457, 463, 85 L. Ed. 278, 283
(1940), overruled as stated in Precision Const. Co. v. J.A.
Slattery Co. Inc., 765 F.2d 114 (8th Cir. Mo. 1985)). North
Carolina exercises specific jurisdiction over a party when it
exercises personal jurisdiction in a suit arising out of thatparty's contacts within the state. Fraser v. Littlejohn, 96 N.C.
App. 377, 383, 386 S.E.2d 230, 234 (1989). To establish specific
jurisdiction, the court looks at the relationship among the
parties, the cause of action, and the forum state to see if
minimum contacts are established. ETR Corporation v. Wilson
Welding Service, 96 N.C. App. 666, 669, 386 S.E.2d 766, 768 (1990).
The test for minimum contacts is not mechanical, but instead
requires individual consideration of the facts in each case.
Fran's Pecans, 134 N.C. App. at 114, 516 S.E.2d at 650. The
activity must be such that defendant could reasonably anticipate
being brought into court there. World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 292, 62 L. Ed. 2d 490, 498 (1980). The
factors to consider for minimum contacts include: (1) the quantity
of the contacts; (2) the quality and nature of the contacts; (3)
the source and connection of the cause of action to the contacts;
(4) the interests of the forum state; and (5) the convenience to
the parties. Fran's Pecans, 134 N.C. App. at 114, 516 S.E.2d at
Here, defendant has engaged in sufficient contacts with North
Carolina. He entered into a contract with North Carolina residents
that those residents executed in North Carolina. He made numerous
phone calls and mailings into the state during the contract
negotiations and throughout the three-year construction period. He
visited plaintiffs in North Carolina two and possibly three times.
Defendant sent bills into North Carolina, which were paid from
plaintiffs' North Carolina bank account. By negotiating within the
state and entering into a contract with North Carolina residents,defendant purposefully availed himself of the privilege of
conducting activities within North Carolina with the benefits and
protection of its laws. Hanson v. Denckla, 357 U.S. 235, 253, 2 L.
Ed. 2d 1283, 1298 (1958). Defendant's actions in contracting with
North Carolina residents establish minimum contacts for specific
jurisdiction because the actions are directly related to the basis
of plaintiffs' claim. Fran's Pecans, 134 N.C. App. at 115, 516
S.E.2d at 651. Because we have found minimum contacts sufficient
to establish specific jurisdiction, due process is satisfied.
Under these circumstances, we need not address general
Litigating this matter in North Carolina serves the best
interests of both plaintiffs and the State of North Carolina.
Plaintiffs live in North Carolina, executed the contract in North
Carolina, and conducted much of the contract and construction
negotiations and discussions in the state. North Carolina has a
manifest interest in providing its residents with a convenient
forum for addressing injuries inflicted by parties out of state.
Fran's Pecans, 134 N.C. App. at 115, 516 S.E.2d at 651. We hold
that defendant has made sufficient minimum contacts to justify the
exercise of personal jurisdiction in this state without violating
due process. C.f., Hanes Constr. Co. v. Hotmix & Bituminous Equip.
Co., 146 N.C. App. 24, 552 S.E.2d 177, per curiam rev'd, 354 N.C.
560, 557 S.E.2d 529 (2001) (adopting Judge Campbell's dissent
holding that the exercise of jurisdiction was not constitutional
where no prior business activity took place in North Carolina anddefendant never entered the state to negotiate or perform the
For the reasons set forth above, we affirm the decision of the
Judges TIMMONS-GOODSON and STEELMAN concur.
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