An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-615


Filed: 20 April 2004



v .                        New Hanover County
                            No. 02 CVS 526


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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