NO. COA03-615
Appeal by plaintiff from order entered 18 March 2003 by Judge
Ernest Fullwood in New Hanover County Superior Court. Heard in the
Court of Appeals 5 February 2004.
Culbreth Law Firm, by Stephen E. Culbreth and Ashley Culbreth
Council, for plaintiff-appellant.
Crossley McIntosh Prior & Collier, by Andrew Hanley and
Douglas F. McIntosh, for defendant-appellees Gerald Blair and
Robinson, Rice & Levy, L.C.
ELMORE, Judge.
Yates Dean Hawkins (plaintiff) appeals from an order
dismissing, with prejudice, plaintiff's tort claims asserted
against Gerald Blair (Blair) and Robinson, Rice & Levy, L.C.
(Robinson, Rice & Levy) (collectively, defendants), for lack ofjurisdiction over the person of each defendant.
(See footnote 1)
For the reasons
stated herein, we affirm.
Defendant Blair, a West Virginia attorney and resident
employed by defendant Robinson, Rice and Levy, a West Virginia law
firm, represented Kristie L. Blake (Blake) in a civil lawsuit tried
in the Circuit Court of Cabell County, West Virginia in February
1999. The trial concluded with a jury verdict and judgment in
Blake's favor against Roman Systems, LTD, a North Carolina
corporation. Plaintiff, a resident of North Carolina, is president
of Roman Systems. Thereafter, defendant Blair, in a letter dated
8 September 2000, informed the Cabell County Prosecuting Attorney
that plaintiff, during his pre-trial deposition testimony,
“provided knowingly false testimony of a significant nature and we
recently obtained information which makes his act of apparent
'false swearing' or perjury even more clear.” A grand jury was
subsequently convened in Cabell County to consider these
allegations, and on 13 October 2000, defendant Blair testified
before the grand jury. After hearing all of the evidence presented
and argument of the prosecutor, the Cabell County Grand Juryreturned a West Virginia felony indictment for perjury against
plaintiff.
On 9 February 2001, plaintiff was arrested at his home in New
Hanover County, North Carolina by North Carolina law enforcement
officers on the outstanding warrant from the West Virginia perjury
indictment. Plaintiff was thereafter held at the New Hanover
County jail before being released on bond, and the West Virginia
charges were ultimately dismissed.
Thereafter, on 8 February 2002, plaintiff instituted an action
in the Superior Court of New Hanover County, North Carolina
asserting tort claims against defendants and Blake for false
imprisonment, malicious prosecution, and abuse of process.
Defendants removed the case to federal court in West Virginia, but
the case was subsequently remanded to the New Hanover County
Superior Court. On 11 February 2003, defendants filed a motion to
dismiss for lack of personal jurisdiction. Following a hearing in
New Hanover County Superior Court, an order was entered on 18 March
2003, dismissing with prejudice plaintiff's claims against
defendants for lack of personal jurisdiction over defendants. From
this order, plaintiff appeals.
By his first assignment of error, plaintiff contends that the
trial court erred in dismissing his claims because defendants'
conduct brought them within N.C. Gen. Stat. § 1-75.4, ourjurisdictional “long-arm” statute, and that the exercise of
personal jurisdiction over defendants satisfies the constitutional
requirements of due process. We disagree.
It is well settled that when a non-resident defendant
challenges the court's exercise of personal jurisdiction, the court
must conduct a two-part inquiry.
Sherlock v. Sherlock, 143 N.C.
App. 300, 301, 545 S.E.2d 757, 759 (2001). First, the North
Carolina “long-arm” statute, N.C. Gen. Stat. § 1-75.4, must permit
the exercise of personal jurisdiction.
Filmar Racing, Inc. v.
Stewart, 141 N.C. App. 668, 671, 541 S.E.2d 733, 736 (2001).
Second, the court's exercise of personal jurisdiction must comport
with the due process clause of the Fourteenth Amendment of the
United States Constitution.
Id. However, when personal
jurisdiction is alleged to exist pursuant to the “long-arm”
statute, the question of statutory authority collapses into a
single inquiry, that being whether defendant has the minimum
contacts 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). The plaintiff bears the burden of proving,
by a preponderance of the evidence, that grounds exist for the
exercise of personal jurisdiction over a defendant.
Murphy v.
Glafenhein, 110 N.C. App. 830, 834, 431 S.E.2d 241, 243 (1993).
In the present case, plaintiff has failed to bring forward anyevidence to support his contention that N.C. Gen. Stat. § 1-75.4
permits the North Carolina courts to exercise personal jurisdiction
over either defendant. The North Carolina “long-arm” statute
provides in relevant part that jurisdiction is proper as follows:
(4) Local Injury; Foreign Act. _ 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;
b. Products, materials or thing processed,
serviced or manufactured by the defendant were
used or consumed, within this State in the
ordinary course of trade; or
c. Unsolicited bulk commercial electronic mail
was sent into or within this State by the
defendant using a computer, computer network,
or the computer services of an electronic mail
service provider in contravention of the
authority granted by or in violation of the
policies set by the electronic mail service
provider. Transmission of commercial
electronic mail from an organization to its
members shall not be deemed to be unsolicited
bulk commercial electronic mail.
N.C. Gen. Stat. § 1-75.4(4) (2003).
“The Due Process Clause of the Fourteenth Amendment operates
as a limitation on the power of a state to exercise
in personam
jurisdiction over a non-resident defendant.”
Filmar Racing, 141
N.C. App. at 671, 541 S.E.2d at 736. The crucial inquiry in
determining whether the exercise of personal jurisdiction comports
with due process is whether the defendant has “certain minimumcontacts with [the forum state] such that the maintenance of the
suit does not offend '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)). Minimum contacts
are generated when the defendant has acted in such a way so as to
purposefully avail himself of the privilege of conducting
activities within the forum state, thus invoking the benefits and
protections of the laws of the forum state.
International Shoe
Co., 326 U.S. at 319, 90 L. Ed. at 104;
Filmar Racing, 141 N.C.
App. at 671, 541 S.E.2d at 736. Moreover, defendant's contacts
with the forum state must be such that he “should reasonably
anticipate being haled into court there.”
Cherry Bekaert & Holland
v. Brown, 99 N.C. App. 626, 632, 394 S.E.2d 651, 656 (1990)
(quoting
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297,
62 L. Ed. 2d 490, 501 (1980)).
Our courts have developed a list of factors to be used as
guidance in determining the existence of minimum contacts. These
factors are: “(1) [the] quantity of the contacts, (2) nature and
quality of the contacts, (3) the source and connection of the cause
of action to the contacts, (4) the interest of the forum state, and
(5) convenience of the parties.”
Cherry Bekaert, 99 N.C. App. at
632, 394 S.E.2d at 655 (quoting
New Bern Pool & Supply Co. v.Graubart, 94 N.C. App. 619, 624, 381 S.E.2d 156, 159 (1989),
aff'd
per curiam, 326 N.C. 480, 390 S.E.2d 137-38 (1990). In addition to
these factors, we “must also weigh and consider the interests of
and fairness to the parties involved in the litigation.”
Filmar
Racing, 141 N.C. App. at 672, 541 S.E.2d at 737.
In the present case
, both defendant Blair and James M.
Robinson, defendant Robinson, Rice, & Levy's president and an
attorney with the firm, submitted affidavits stating that neither
defendant had ever conducted or solicited business in North
Carolina. Plaintiff did not submit any evidence contesting the
contentions made by either defendant in their respective
affidavits. We have carefully examined the record and have
discerned no contacts of any kind between either defendant and the
state of North Carolina. Plaintiff's claims against defendants are
based entirely on defendant Blair's role in the West Virginia grand
jury proceedings, which resulted in plaintiff's indictment in that
state for perjury. North Carolina's only connection to the
underlying litigation is that plaintiff was arrested in this state
on the outstanding warrant which resulted from those proceedings.
Accordingly, we hold that plaintiff has failed to carry his burden
of proving, by a preponderance of the evidence, that grounds exist
for the North Carolina courts to exercise personal jurisdiction
over either defendant.
Murphy, 110 N.C. App. at 834, 431 S.E.2d at243. Plaintiff's first assignment of error is overruled.
By his second assignment of error, plaintiff contends the
trial court erred by failing to make any findings of fact in the
order dismissing plaintiff's claims for lack of personal
jurisdiction, pursuant to Rules 41(b) and 52 of the North Carolina
Rules of Civil Procedure. We disagree.
Rule 52 of our Rules of Civil Procedure states that findings
of fact are necessary “on decisions of any motion or order ex mero
motu only when requested by a party and as provided by Rule 41(b).”
N.C. Gen. Stat. § 1A-1, Rule 52(a)(2) (2003). After carefully
reviewing the record before us, we conclude that neither situation
applies to the trial court's order dismissing plaintiff's claim for
lack of personal jurisdiction. First, there is no evidence in the
record that either plaintiff or defendants requested that the trial
court make findings of fact when it issued its order. Second, Rule
41(b) only requires findings of fact if the trial court “renders
judgment
on the merits against the plaintiff. N.C. Gen. Stat. §
1A-1, Rule 41(b) (2003) (emphasis added). An order dismissing a
claim for lack of personal jurisdiction does not operate as an
adjudication upon the merits.
Id. Thus, neither Rule 41(b) nor
Rule 52 required the trial court to make findings of fact in its
order. Accordingly, plaintiff's second assignment of error is
without merit. Affirmed.
Judges TIMMONS-GOODSON and BRYANT concur.
Report per Rule 30(e).
Footnote: 1 It appears from the record on appeal that Kristie L. Blake,
the third named defendant in plaintiff's complaint initiating the
underlying litigation, neither filed her own motion to dismiss
nor joined in defendants' motion. Blake, therefore, is not the
subject of the instant appeal.
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