DEER CORPORATION, Plaintiff, v. GUY W. CARTER, Defendant
During the pendency of its appeal to this Court, plaintiff
moved the trial court to set aside its Order Granting Defendant'sMotion to Dismiss for Lack of Personal Jurisdiction pursuant to
Rule 60(b) of the North Carolina Rules of Civil Procedure. N.C.
Gen. Stat. § 1A-1, Rule 60(b) (2005). Although an appeal divests
the trial court of jurisdiction, a trial court retains limited
jurisdiction to hear a Rule 60(b) motion and to indicate its
probable disposition after the notice of appeal has been entered.
Hagwood v. Odom, 88 N.C. App. 513, 518, 364 S.E.2d 190, 193 (1988).
Where the trial court indicates . . . that the motion should be
denied, this Court will review that action along with any other
assignments of error raised by the appellant. Id.
Plaintiff argued in its motion that the trial court should set
aside its previous order on the bases of newly discovered evidence,
fraud, and [a]ny other reason justifying relief. N.C. Gen. Stat.
§ 1A-1, Rule 60(b)(2),(3) and (6) (2005).
Carter misrepresented his involvement in the transactions
complained of, and Carter's misrepresentations related to material
jurisdictional facts and precluded Deer from establishing that
personal jurisdiction existed. Plaintiff filed additional
documents under seal in support of the motion and claimed those
documents were sufficient to establish personal jurisdiction.
These documents consisted of (1) notes from a meeting at which
defendant was present which discuss the possibility of ending
Haweka Germany's relationship with plaintiff and opening a new U.S.office, (2) an email from defendant to Henning Flatt, another
Haweka Germany employee, asking Flatt to email Donahue with a
credit card number to pay for Donahue's flight to Germany and
indicating that Donahue would be on the same flight as defendant
into Hannover, Germany, (3) an email from Donahue to defendant in
which Donahue lists his monthly expenses and asks for a fax number
for Henning Flatt,
(4) an email from defendant to Donahue in which
defendant gives Donahue the fax number for Henning Flatt, arranges
for money to be wired to Donahue, and asks Donahue to prepare three
different business plans,
and (5) an email from defendant to a
client in North America expressing regret that the reason the
client was not buying Haweka products was because of [defendant's]
counterpart in the North American Outlet, which was plaintiff
corporation, and seeking a way for the client to purchase Haweka
products from another Haweka outlet, but not from Allan Hansen.
On 27 February 2006, the trial court entered an order denying
plaintiff's Rule 60(b) motion to set aside its Order Granting
Defendant's Motion to Dismiss for Lack of Personal Jurisdiction
The court found Haweka Germany made these documents available to
plaintiff on or about 19 June 2003; however, [d]espite ample
opportunity to do so, neither Deer nor its lawyers have ever
indicated that they viewed or even made an effort to view thedocuments offered for inspection by Haweka Germany in 2003. The
trial court made the following additional findings of fact:
13. Deer Corporation failed to exercise
diligence in pursuing the newly submitted
documents prior to the original hearing.
Proper means available to it were not
employed. Regardless, the contents of the
four documents do not constitute new evidence,
rather they tend to either corroborate or
contradict evidence previously before the
14. Had these documents been available at the
original hearing, a different result would not
have been reached. The Court found in 2004
that the location of witnesses and particular
familial circumstances made litigation in
North Carolina highly inconvenient for Carter
(Finding of Fact 21) and indicated that this
was one of the factors considered in
concluding that exercising personal
jurisdiction over Carter would not comport
with his due process rights. (Finding of Fact
15. Nothing contained in the new documents
compels a reversal of these findings. If
anything, their essential correctness is
confirmed. The parties submitted a total of
seven affidavits in connection with this
motion. Two of those affidavits were from the
lawyers. The remaining five affidavits were
from residents of Europe. These affidavits
contain allegations reaching far beyond any
purported contacts with North Carolina and
striking at the heart of the dispute. They
make clear that the majority of significant
witnesses in this action reside in Europe.
Therefore, the trial court made the following conclusions of law: 2. Deer did not use reasonable diligence in
seeking to obtain the documents submitted in
connection with this motion.
3. Deer has not shown that Carter committed
fraud in connection with the motion to
4. Were the Court to reconsider its prior
order of dismissal in light of the documents
filed with this motion, its conclusions of law
would not change.
5. Grounds for relief under Rule 60(b)(6) do
Plaintiff argues on appeal to this Court that the trial court
erred by (1) requiring it to do more than make a prima facie
showing of jurisdiction, (2) finding no evidence to suggest
defendant requested or knew Donahue wanted to send information
removed from plaintiff's computer system when such evidence existed
in the record, (3) finding no evidence that defendant ever sought
the North American distributorship when such evidence existed in
the record, (4) failing to consider evidence that was properly in
the record when ruling on defendant's motion to dismiss, and (5)
dismissing its complaint when the undisputed evidence mandated the
exercise of personal jurisdiction over defendant. Also before us
on appeal is the trial court's denial of plaintiff's motion to setaside the order granting defendant's motion to dismiss. See
, 88 N.C. App. at 518, 364 S.E.2d at 193 (1988)
trial court indicates . . . that the [Rule 60(b)] motion should be
denied, this Court will review that action along with any other
assignments of error raised by the appellant.).
North Carolina General Statute section 1-277(b) provides a
right of immediate appeal from an order denying a motion to dismiss
for lack of personal jurisdiction. N.C. Gen. Stat. § 1-277(b)
When this Court reviews a decision as to personal
jurisdiction, it considers only 'whether the findings of fact by the
trial court are supported by competent evidence in the record;' .
. . [w]e are not free to revisit questions of credibility or weight
that have already been decided by the trial court. Banc of Am.
Secs. LLC v. Evergreen Int'l Aviation, Inc.
, 169 N.C. App. 690, 694-
95, 611 S.E.2d 179, 183 (2005) (quoting Replacements, Ltd. v.
, 133 N.C. App. 139, 140-41, 515 S.E.2d 46, 48 (1999)).
If the findings of fact are supported by competent evidence, we
conduct a de novo
review of the trial court's conclusions of law and
determine whether, given the facts found by the trial court, the
exercise of personal jurisdiction would violate defendant's due
process rights. Id.
(stating that [i]t is this Court's task to
review the record to determine whether it contains any evidence that
would support the trial judge's conclusion that the North Carolinacourts may exercise jurisdiction over defendants without violating
defendant's due process rights).
 We first address plaintiff's argument that the trial court
erred by requiring it to do more than make a prima facie
jurisdiction. In Bruggeman v. Meditrust Acquisition Co.
, 138 N.C.
App. 612, 615, 532 S.E.2d 215, 217, disc. review denied
, 353 N.C.
261, 546 S.E.2d 90 (2000), this Court stated:
If the exercise of personal jurisdiction is
challenged by a defendant, a trial court may
hold an evidentiary hearing including oral
testimony or depositions or may decide the
matter based on affidavits. N.C. Gen. Stat. §
1A-1, Rule 43(e). If the court takes the
latter option, the plaintiff has the initial
burden of establishing prima facie
jurisdiction is proper. Of course, this does
not alleviate the plaintiff's ultimate burden
of proving personal jurisdiction at an
evidentiary hearing or at trial by a
preponderance of the evidence.
(internal citations omitted). Plaintiff contends the procedural
posture of this case was such that the latter option applied because
both parties had submitted competing affidavits; therefore, it was
only required to make a prima facie
showing of personal
jurisdiction. However, both parties also submitted depositions to
the trial court, and its findings are replete with facts taken from
these depositions. Furthermore, the trial court held a hearing on
the question of personal jurisdiction, and although no witnessestestified at the hearing, both parties argued facts based on the
We therefore conclude this case had moved beyond the
procedural standpoint of competing affidavits
to an evidentiary
hearing. As such, the trial court was required to act as a fact-
finder, Fungaroli v. Fungaroli
, 51 N.C. App. 363, 367, 276 S.E.2d
521, 524, disc. review denied
, 303 N.C. 314, 281 S.E.2d 651 (1981),
and decide the question of personal jurisdiction by a preponderance
of the evidence. Plaintiff therefore had the ultimate burden of
proving jurisdiction rather than the initial burden of
establishing prima facie
that jurisdiction [was] proper.
, 138 N.C. App. at 615, 532 S.E.2d at 217.
Plaintiff, however, contends a clear conflict exists between
Banc of America Securities
in that [n]owhere in the
decision did this Court set forth any categories of
motions to dismiss or standards to be applied to motions existing
in different procedural postures. Banc of America Securities
out the three following possible procedural postures for a court
considering a motion to dismiss for lack of personal jurisdiction:
(1) the defendant makes a motion to dismiss without submitting any
opposing evidence; (2) the defendant supports its motion to dismiss
with affidavits, but the plaintiff does not file any opposing
evidence; or (3) both the defendant and the plaintiff submit
affidavits addressing the personal jurisdiction issues. Banc ofAm. Secs. LLC
, 169 N.C. App. at 693, 611 S.E.2d at 182.
of America Securities
agree that under the third
posture, where parties submit competing affidavits on a defendant's
motion to dismiss for lack of personal jurisdiction, the trial court
may hold an evidentiary hearing including oral testimony or
depositions or may decide the matter based on affidavits.
, 138 N.C. App. at 615, 532 S.E.2d at 217
; Banc of Am.
, 169 N.C. App. at 694, 611 S.E.2d at 183. Simply because
the Court in Bruggeman
did not address each possible procedural
standpoint does not create a conflict.
This argument is without
 Plaintiff next argues the trial court erred in finding no
evidence to suggest that defendant requested or knew Donahue wanted
to send information removed from plaintiff's computer system because
such evidence existed in the record. Plaintiff contends the finding
is clearly erroneous because Donahue testified defendant asked him
to provide information that could be useful in terminating
plaintiff's distribution agreement, and once Donahue copied such
information from the computer system, he then asked defendant for
a fax number.
The trial court found that [i]n his deposition, Donahue
testified simply that he requested Haweka Germany's fax number from
Carter. Donahue's deposition testimony supports this finding. Donahue stated that I asked for Henning Flatt's fax number to fax
the document that I had. He did not claim defendant knew the
reason he was requesting the fax number or what kind of information
the document contained. Although Donahue requested the fax number
following the conference call in which he was asked to take
information from plaintiff's computer system, the trial court found
defendant was not a party to that call. This finding is also
supported by Donahue's deposition testimony, in which he stated the
conference call was between himself, Andy Hancock, Henning Flatt,
and Dirk Warkotsch. The trial court concluded '[t]here simply is
no evidence to suggest that Carter requested or knew that Donahue
wanted to 'send information removed from Deer's computer system.'
We have already stated that for questions of personal
jurisdiction, this Court considers only whether the trial court's
findings of fact are supported by competent record evidence. Banc
of Am. Secs. LLC
, 169 N.C. App. at 694, 611 S.E.2d at 183
Plaintiff argues that because Donahue specifically said in his
deposition that defendant asked him to take information from
plaintiff, the trial court's finding that there was no evidence
. . [defendant] wanted to 'send information removed from Deer's
was erroneous. (Emphasis added). However, it
appears the trial court believed defendant rather than Donahue, and
[w]e are not free to revisit questions of credibility or weightthat have already been decided by the trial court.
Banc of Am.
, 169 N.C. App. at 695, 611 S.E.2d at
trial court's findings of fact with respect to defendant's
involvement in taking information from plaintiff are supported by
the evidence in the record, we are bound by them, even if another
possible interpretation of the evidence exists. Fungaroli
, 51 N.C.
App. at 367, 276 S.E.2d at 524
(The trial judge's findings of fact
when supported by competent evidence are conclusive upon this Court
even when there is conflict in the evidence.).
This argument is
Similarly, plaintiff argued the trial court erred by finding
there was no evidence defendant ever sought the North American
distributorship because such evidence existed in the record.
Although such evidence can be inferred from the record, defendant
denied these allegations, stating in his affidavit that neither he
nor his company ever sought the USA distribution rights from Haweka
Because we do not weigh the evidence or review questions
of witness's credibility,
Banc of Am. Secs. LLC
, 169 N.C. App. at
695, 611 S.E.2d at
183, this argument is overruled.
 Plaintiff also argued the trial court erred in failing to
consider certain evidence when ruling on defendant's motion to
. Specifically, the trial court did not consider allegations
in Allan Hansen's affidavit that were not based on Hansen's personalknowledge, nor did it consider allegations in the complaint. With
respect to allegations in an affidavit, our courts have required
they be based upon personal knowledge. North Carolina Rule of Civil
Procedure 56(e) states affidavits shall be made on personal
knowledge, and this Court has held Rule 56(e) applies to motions
to dismiss. Lemon v. Combs
, 164 N.C. App. 615, 621-22, 596 S.E.2d
344, 348-49 (2004) (stating the requirement that affidavits must
be based on personal knowledge applies to Rule 43(e) [Evidence on
motions]); see also Hankins v. Somers
, 39 N.C. App. 617, 620, 251
S.E.2d 640, 642, disc. review denied
, 297 N.C. 300, 254 S.E.2d 920
(1979) (applying the personal knowledge requirement in Rule 56(e)
to a motion to dismiss). The Court in Lemon
also noted affidavits
purporting to establish personal jurisdiction should be based on
personal knowledge and [s]tatements in affidavits as to opinion,
belief, or conclusions of law are of no effect. Lemon
, 164 N.C.
App. at 621, 596 S.E.2d at 348-49. Therefore, the trial court did
not err by considering only the allegations in Hansen's affidavit
that were based on his own personal knowledge.
Plaintiff's complaint was verified by its current president
Thomas Betts. However, the statement of verification averred the
matters stated [in the complaint] are not all within [Betts's]
personal knowledge; that the facts therein have been assembled by
authorized representatives and counsel for Plaintiff, and he isinformed that the facts stated therein are true. The trial court
therefore found [b]ecause Mr. Betts failed to identify any single
allegation based on his own, personal knowledge, the Court must
disregard his testimony. Plaintiff argues the trial court erred
in disregarding the allegations in the complaint when considering
defendant's Rule 12(b)(2) motion to dismiss for lack of personal
Our Supreme Court has held that in considering a Rule 56 motion
for summary judgment, a trial court may consider material which
would be admissible in evidence at trial. Kessing v. Mortgage
, 278 N.C. 523, 533, 180 S.E.2d 823, 829 (1971). In Hankins
this Court reasoned that, like a motion for summary judgment, a
motion to dismiss can also result in the termination of a lawsuit.
Therefore, in ruling on a motion to dismiss, a court should rely
only on material that would be admissible at trial. Hankins
N.C. App. at 620, 251 S.E.2d at 642.
In Inspirational Network, Inc.
, 131 N.C. App. 231, 238, 506 S.E.2d 754, 759 (1998), we
also stated the trial court in ruling on a Rule 12(b)(2) motion
'should rely only on material that would be admissible at trial.'
The court thus should 'consider whether there were sufficient
allegations based upon plaintiff's personal knowledge to support the
exercise of personal jurisdiction over the . . . defendants.'
N.C. App. at 238, 506 S.E.2d at 759 (1998) (quoting Hankins
, 39 N.C.App. at 620, 251 S.E.2d at 642). Because the allegations in the
complaint were not based on Thomas Betts' personal knowledge, we
conclude the trial court properly disregarded those allegations in
considering the question of personal jurisdiction over defendant.
 We now turn to plaintiff's argument that the trial court
erred in granting defendant's motion to dismiss because the
undisputed evidence of record mandates the exercise of personal
jurisdiction over [defendant]. Having determined the trial court's
findings of fact are supported by competent evidence, we must
conduct a de novo
review of the trial court's conclusions of law and
determine whether, given the facts found by the trial court, the
exercise of personal jurisdiction would violate defendant's due
process rights. Banc of Am. Secs. LLC
, 169 N.C. App. at 694-95, 611
S.E.2d at 183.
A two-step inquiry is used to determine whether our courts have
personal jurisdiction over a non-resident defendant. First, we must
determine if a basis for jurisdiction exists under the North
Carolina long-arm statute, and second, whether the exercise of
jurisdiction over the defendant will comport with the constitutional
standards of due process. Cameron-Brown Co. v. Daves
, 83 N.C. App.
281, 283, 350 S.E.2d 111, 113 (1986). Because we believe due
process would not be met if jurisdiction were exercised over
defendant, we need not address the question of whether jurisdictionexists under our long-arm statute. See Globe, Inc. v. Spellman
45 N.C. App. 618, 623, 263 S.E.2d 859, 863, disc. review denied
N.C. 373, 267 S.E.2d 677 (1980) (stating the Court need not
determine whether the contract at issue was in accord with the long-
arm statute because even if that statute were met, due process was
To satisfy the requirements of the due process clause, there
must exist 'certain minimum contacts [between the nonresident
defendant and the forum state] such that the maintenance of the suit
does not offend traditional notions of fair play and substantial
justice.' Banc of Am. Secs. LLC
, 169 N.C. App. at 695, 611 S.E.2d
at 184 (quoting Int'l Shoe Co. v. Washington
, 326 U.S. 310, 316, 90
L.Ed. 95, 102 (1945)). Our Supreme Court has stated a defendant
must purposefully avail himself of the privilege of conducting
activities within the forum state, thus invoking the benefits and
protections of its laws. Tom Togs, Inc. v. Ben Elias Indus. Corp.
318 N.C. 361, 365, 348 S.E.2d 782, 786 (1986). The relationship
between the defendant and the forum must be 'such that he should
reasonably anticipate being haled into court there.' Id.
World-Wide Volkswagen Corp. v. Woodson
, 444 U.S. 286, 297, 62 L. Ed.
2d 490, 501 (1980)).
The existence of adequate minimum contacts must be determined
by a careful scrutiny of the particular facts of each case. Cameron-Brown Co.
, 83 N.C. App. at 284, 350 S.E.2d at 114. Factors
to be considered include: (1) [the] quantity of the contacts
between defendant and the forum state, (2) [the] quality and nature
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)
[the] convenience of the parties. Id.
Additional factors are the
location of critical witnesses and material evidence, and the
existence of a contract which has a substantial connection with the
forum state. Id.
No single factor controls; rather, all factors
must be weighed in light of fundamental fairness and the
circumstances of the case. Corbin Russwin, Inc. v. Alexander's
, 147 N.C. App. 722, 725, 556 S.E.2d 592, 595 (2001)
(internal citation omitted).
A court is said to exercise specific jurisdiction where a
case arises from or is related to the defendant's contacts with the
forum state. Where the defendant's contacts with the state,
however, are not related to the suit, we may apply the doctrine of
general jurisdiction. Under this doctrine, 'jurisdiction may be
asserted even if the cause of action is unrelated to defendant's
activities in the forum state as long as there are sufficient
'continuous and systematic' contacts between defendant and the forum
, 138 N.C. App. at 617, 532 S.E.2d at 219
(citations omitted). The parties in the present case submitted materially
regarding defendant's contacts with North
Carolina. The trial court accepted the facts as set forth by
defendant, and having found such findings to be supported by
competent evidence, we must determine the question of jurisdiction
based on those facts. These facts consist of the following
findings: (1) Donahue initiated the series of telephone
conversations between Donahue and defendant; (2) defendant's alleged
return calls to Donahue were not essential elements of any claim
asserted by plaintiff against him; (3) defendant had no role in
Haweka Germany's hiring of Donahue, other than to inform Haweka
Germany of Donahue's interest and later to relay an offer of
employment; (4) defendant neither sought nor received any benefit
for informing Haweka Germany of Donahue's interest in working there;
(5) defendant had no role in Haweka Germany's attempt to replace
plaintiff as its North American distributor, nor did defendant seek
the North American distributorship for himself; (6) defendant did
not provide Donahue a credit card number for his trip to Germany;
(7) in providing Donahue with a fax number for Haweka Germany,
defendant did not know Donahue planned to fax information removed
from plaintiff's computer system; (8) defendant made an unspecified
number of personal visits to North Carolina, the last of which took
place in February 1999; (9)
a number of the witnesses are residentsof European countries; and (10) defendant is the father of three
small children, and his wife suffers from severe post-natal
depression, making it difficult for him to travel.
Thus, it appears defendant's contacts with North Carolina
include: returning telephone calls to Donahue in North Carolina,
which the trial court found was not related to any essential element
of plaintiff's claims; relaying an offer of employment to Donahue
in North Carolina, which the trial court determined he received no
benefit from; and visiting North Carolina for a number of
unspecified personal visits ending in February 1999. Plaintiff
contends defendant visited North Carolina between four and eight
times from 1996 to 1999 and, during those visits, conducted two
training sessions, several wrap-up meetings, and one international
sales meeting near the time of Allan Hansen's wedding celebration.
The trial court concluded such contacts were insufficient to incur
general jurisdiction over defendant, stating that his general
contacts with the state . . . were not systematic and continuous
such that Carter should be expected to defend claims filed nearly
five years after his last visit that are factually unrelated to
those prior contacts. We agree with the trial court that
defendant's telephone conversations with Donahue from Europe and his
infrequent visits to North Carolina were not continuous andsystematic contacts such that general jurisdiction would apply.
, 138 N.C. App. at 617, 532 S.E.2d at 219.
We now address whether these contacts were sufficiently related
to the allegations against defendant to incur specific jurisdiction.
Assuming, as we must, defendant did not seek the North American
distributorship for himself, one cannot conclude he used the
meetings and training sessions he attended in North Carolina as a
means to appropriate trade secrets or interfere with contract or
prospective economic advantage. Also, accepting as true the trial
court's findings that Donahue initiated the series of phone calls
between Donahue and defendant, defendant received no benefit from
relaying an offer of employment from Haweka Germany to Donahue,
defendant did not provide a credit card number for Donahue's travel
to Germany, and defendant did not ask Donahue to prepare a business
plan for a new North American distributorship, the evidence does not
support a conclusion that defendant conspired with Donahue to commit
any alleged act. We cannot conclude, given the facts found by the
trial court, plaintiff's claims arise from or are related to
defendant's contacts with North Carolina. Bruggeman
, 138 N.C. App.
at 617, 532 S.E.2d at 219.
In addition to the quality and quantity of defendant's contacts
with North Carolina and the relationship of those contacts to
plaintiff's claims, the trial court also considered the convenienceto the parties and the location of witnesses. It found that a
number of witnesses in this litigation were residents of European
countries and that travel would be difficult for defendant since his
wife suffered from severe post-natal depression and he was the
father of three small children
Weighing the trial court's findings
as a whole, we hold that due process would not be satisfied by
requiring defendant to litigate these claims in North Carolina.
 Finally, we must review the trial court's 27 February 2006
order denying plaintiff's Rule 60(b) motion to set aside the court's
Order Granting Defendant's Motion to Dismiss for Lack of Personal
Jurisdiction. Appellate review of a trial court's ruling on a
motion made pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b) is
limited to determining whether the trial court abused its
discretion. Gallbronner v. Mason
, 101 N.C. App. 362, 364, 399
S.E.2d 139, 140, disc. review denied
, 329 N.C. 268, 407 S.E.2d 835
(1991). The trial court cited two reasons for denying plaintiff's
motion. First, it determined the documents submitted under seal
corroborated its previous findings and therefore would not have
affected its prior conclusions of law. Second, the court found
plaintiffs had the opportunity to obtain and present the evidence
in these documents at the evidentiary hearing but failed to do so.
See McGinnis v. Robinson
, 43 N.C. App. 1, 10, 258 S.E.2d 84, 90
(1979) (stating that one factor a trial court should consider inruling on a 60(b) motion is the opportunity the movant had to
present his claim or defense) (citation omitted). Upon careful
review of the sealed documents and the trial court's order, we
conclude the trial court did not abuse its discretion in denying
plaintiff's Rule 60(b) motion.
JUDGES MCGEE and ELMORE concur.
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