An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-906


Filed: 20 July 2004


v .                             Durham County
                                No. 02 CVS 4653

    Appeal by defendant from an order filed 12 May 2003 by Judge Ripley E. Rand in Durham County Superior Court. Heard in the Court of Appeals 19 April 2004.

    Harriss & Marion, P.L.L.C., by Joseph W. Marion, for plaintiff-appellee.

    Bennett & Guthrie, P.L.L.C., by Richard V. Bennett and Roberta B. King, for defendant-appellant.

    THORNBURG, Judge.

    Defendant Windbrella Products Corporation appeals the trial court's denial of its motion to dismiss for lack of personal jurisdiction. The evidence presented showed that plaintiff is a North Carolina corporation with its principal place of business in Durham. Defendant is a New York corporation with its headquarters in Jericho, New York. Defendant is engaged in the manufacture and sale of wind-proof umbrellas. On or about 17 March 1997, defendant and plaintiff entered into a contract whereby defendant appointed plaintiff as its sales representative. The contract specified that plaintiff would represent defendant in the sale of wind-proofumbrellas to Hammacher Schlemmer (“Hammacher”), a home goods retail operation.
    The contract contained the following relevant provisions:
        [Defendant] shall, at no expense to [plaintiff], supply to [plaintiff] catalogs, price lists, brochures and other literature in such quantities as [defendant] deem[s] reasonable. Samples, will be billed on memo, payable in 90 days from date of shipment.

        In obtaining orders for [defendant's] products, [plaintiff] shall quote prices and terms fixed by [defendant]. [Plaintiff] shall forward all orders promptly to [defendant] and each order shall be subject to [defendant's] acceptance. [Defendant] reserve[s] the right to withhold shipments to any account for any reason with just cause.

        All payments shall be made directly to [defendant]. Neither [plaintiff] nor [plaintiff's] agents or employees shall collect any moneys from the accounts without specific written authorization. [Plaintiff] shall not be responsible for payment or collection of any accounts, but when requested by [defendant], [plaintiff] shall endeavor to make collection from specific delinquent accounts.

        [Plaintiff's] commission shall be paid to [plaintiff], based on net billings, on all orders received by [defendant] during the term and under the terms of this agreement. . . .

        . . . .

        [Plaintiff] shall pay all costs of conducting [plaintiff's] operations hereunder, including, but not limited to, commissions or compensation to other [sic] employed by you.

Plaintiff brought suit for breach of contract and alleged that defendant has made regular and continuous sales to Hammacher of its products, but has only sporadically made small commission payments due under the agreement to plaintiff.     Defendant moved to dismiss the suit for lack of personal jurisdiction pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(2). We first note that an adverse ruling as to a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, which “raises a due process question of whether his contacts within the forum state were sufficient to justify the court's jurisdictional power over him,” is immediately appealable under N.C. Gen. Stat. § 1-277(b). Berger v. Berger, 67 N.C. App. 591, 595, 313 S.E.2d 825, 829, disc. review denied, 311 N.C. 303, 317 S.E.2d 678 (1984).
    “The test for establishing in personam personal jurisdiction over a foreign corporation is two-fold: first, 'Whether North Carolina's 'long-arm' statute permits courts in this jurisdiction to entertain the action;' and second, 'whether exercise of this jurisdictional power comports with due process of law.'” Fran's Pecans, Inc. v. Greene, 134 N.C. App. 110, 112, 516 S.E.2d 647, 649 (1999), (quoting ETR Corporation v. Wilson Welding Service, 96 N.C. App. 666, 668, 386 S.E.2d 766, 767 (1990)). Defendant challenges the trial court's ruling on both prongs of this test.
    Either party may request that the trial court make findings regarding personal jurisdiction, but in the absence of such a request, findings are not required. See J.M. Thompson Co. v. Doral Manufacturing Co., 72 N.C. App. 419, 324 S.E.2d 909, disc. review denied, 313 N.C. 602, 330 S.E.2d 611 (1985); Trust Co. v. Eways, 46 N.C. App. 466, 265 S.E.2d 637 (1980). In the case before us, the trial court's order contained no findings, but there is nothing in the record to show that either party requested them. Where nofindings are made, proper findings are presumed, and our role on appeal is to review the record for competent evidence to support these presumed findings. Sherwood v. Sherwood, 29 N.C. App. 112, 223 S.E.2d 509 (1976).
    Defendant contends that North Carolina's long-arm statute does not permit the exercise of in personam jurisdiction over them. Our courts have held that our long-arm statute should 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).
    The long-arm statute provides for in personam jurisdiction over a party in an action that “[a]rises out of a promise, made anywhere to the plaintiff . . . by the defendant . . . to pay for services to be performed in this State by the plaintiff[.]” N.C. Gen. Stat. § 1-75.4(5)(a) (2003). The contract out of which this action arises is a promise by defendant to pay for services to be performed in this state by the plaintiff. Plaintiff was to represent defendant in the sale of certain products to Hammacher. To this end, defendant provided plaintiff with product information, which was sent to plaintiff's office in Durham. Plaintiff used this information to sell defendant's umbrellas to Hammacher. By affidavit, plaintiff showed that most of these services were carried out from its office in Durham. Pursuant to the contract, defendant agreed to pay plaintiff a commission based on the amount of sales made by defendant to Hammacher. In effect, defendant agreed to pay for services, the establishment of a salesrelationship between defendant and Hammacher, which plaintiff performed from its office in Durham. These facts bring this case squarely within the scope of the quoted statute. We affirm the trial court's ruling that the exercise of in personam jurisdiction over defendant met the requirements of North Carolina's long-arm statute.
    When in personam jurisdiction is alleged to exist under the North Carolina long-arm statute, the court must decide “whether the defendant has the minimum contacts with North Carolina necessary to meet the requirements of due process.” Replacements, Ltd. v. Midwesterling, 133 N.C. App. 139, 143, 515 S.E.2d 46, 49 (1999). “Due process requires defendant to have sufficient minimum contacts with the forum state before being hailed into court.” First Union Nat'l Bank of Del. v. Bankers Wholesale Mortgage, LLC, 153 N.C. App. 248, 252, 570 S.E.2d 217, 221 (2002) (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 62 L. Ed. 2d 490, 501 (1980)). Minimum contacts must be such that the exercise of in personam jurisdiction 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)).     When our courts exercise personal jurisdiction in a suit arising out of that party's contact within the state, we are exercising specific jurisdiction. Fran's Pecans, 134 N.C. App. at 114, 516 S.E.2d at 650. In establishing specific jurisdiction, the court looks at the “relationship among the parties, the cause ofaction, and the forum state” to determine 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 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.” Id.
    “Although a contractual relationship between a North Carolina resident and an out-of-state party alone does not automatically establish the necessary minimum contacts with this State, nevertheless, a single contract may be a sufficient basis for the exercise of in personam jurisdiction if it has a substantial connection with this State.” Tom Togs, Inc. v. Ben Elias Industries Corp., 318 N.C. 361, 367, 348 S.E.2d 782, 786 (1986) (emphasis in original). In Tom Togs, the court found a substantial connection to this forum because (1) defendant contacted plaintiff, whom defendant knew to be located in North Carolina, thus the contract for the manufacture of shirts was made in North Carolina; (2) defendant was told the shirts would be cut in North Carolina, and defendant agreed to send its personal labels to plaintiff in North Carolina to be attached, thus defendant was aware that the contract would be performed in this state; (3) shirts weremanufactured and shipped from this state; and (4) after defendant became dissatisfied with the shirts, it returned them to this state. Id. at 367, 348 S.E.2d at 786-87.
    In the instant case, defendant contacted plaintiff to establish the relationship between defendant and Hammacher. The contract out of which this action arises, was signed by defendant and mailed to plaintiff in Durham to sign. “For a contract to be made in North Carolina, the final act necessary to make it a binding obligation must be done here.” Realty Corp. v. Savings & Loan Assoc., 40 N.C. App. 675, 677, 253 S.E.2d 621, 624, disc. review denied, 297 N.C. 612, 257 S.E.2d 435 (1979). Thus, the contract was made in North Carolina. Defendant agreed to send its “catalogs, price lists, brochures and other literature,” and did in fact send such items, to plaintiff in this state. Defendant admits that it has received orders and made sales to Hammacher since entering into the contract with plaintiff. Plaintiff has testified, in an affidavit, that all services performed in establishing the relationship with Hammacher were performed by its employee at its office in Durham, North Carolina. Defendant obligated itself to make payments to plaintiff in North Carolina and actually did make some of the required payments.
    While defendant focuses on the insubstantial nature of its contacts with this state otherwise, we conclude that the contract between defendant and plaintiff had a “substantial connection” with this state. The instant case is similar to the Tom Togs case, in that the evidence before the trial court tended to show that (1)the contract for services was made in this state; (2) defendant's actions, in sending its sales literature, show it was aware services would be performed in this state; (3) services were in fact performed in this state; and (4) in response to those services being performed, defendant sent payments to plaintiff in this state.
    Other factors also support the conclusion that jurisdiction is proper in this case. Plaintiff is located in North Carolina, its sole employee is located in North Carolina and plaintiff performs the vast majority of its activities in North Carolina. “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. Defendant has not shown any reason why litigation would be unfair in North Carolina. Nor has defendant shown any disparity between itself and plaintiff that would make litigation in North Carolina unfair. Further, in making an offer to plaintiff to enter into a contract made in this state and having a substantial connection with it, defendant purposefully availed itself of the protection and benefits of our laws. After examining the relationship among the defendant, the forum and the cause of action, we find sufficient minimum contacts to justify the exercise of personal jurisdiction over the defendant in this case without violating the due process clause of the fourteenth amendment to the United States Constitution. U.S. Const. amend. XIV, § 1.    We affirm the trial court's order denying defendant's motion to dismiss due to lack of personal jurisdiction.
    Judges MARTIN and HUNTER concur.
    Report per Rule 30(e).

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