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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.
JAMES E. ROBBINS, THOMAS M. ROBBINS, ROBBINS INVFOR LTD., ROBBINS
INVESTMENTS, LLC, Plaintiffs, v. LEO INGHAM, VICTOR GAMBLE, PAUL
LONGHURST, TRINITY COURT MANAGEMENT, LTD., Defendants
Filed: 17 October 2006
1. Appeal and Error_service of record on appeal_extension of time
The trial court did not abuse its discretion by deeming plaintiffs' service of the record on
appeal timely where there were multiple appellants, cross appeals, and an apparent
misunderstanding about the time available under the circumstances. Appellate Rule 27(c)
allows an extension of time even after the deadline for service has passed.
2. Jurisdiction_personal_long-arm statute_director of offshore investment company
The trial court did not err by dismissing for lack of personal jurisdiction claims against a
resident of the Isle of Guernsey (Gamble) who was also the director of a corporation chartered in
Guernsey. Plaintiffs were contacted about investment opportunities by a North Carolina
attorney, not by Gamble, the money was transferred to a corporation incorporated by the North
Carolina attorney, which then wired it to defendants, and defendant Gamble was not subject to
personal jurisdiction by the North Carolina courts under N.C.G.S. § 1-75.4(4) or (5).
3. Jurisdiction_personal_due process--offshore corporate director_no contact with
It was noted that a resident of the Isle of Gurnsey (Gamble) had insufficient minimum
contacts to satisfy due process where plaintiffs were contacted about investment opportunities by
a North Carolina attorney, not by Gamble, and Gamble's affidavit states that he has never visited
North Carolina, spoken with plaintiffs, or given investment advice to plaintiffs. Personal
jurisdiction over an individual officer or employee of a corporation may not be predicated merely
upon the corporate contacts with the forum.
Appeal by plaintiffs from an order entered 8 July 2005 by
Judge Albert Diaz in Mecklenburg County Superior Court. Cross-
appeal by defendants from orders entered 11 March 2005 and 31
October 2005 by Judge Albert Diaz in Mecklenburg County Superior
Court. Heard in the Court of Appeals 21 August 2006.
Vann Law Firm, P.A., by Christopher M. Vann, for plaintiff
Smith Moore, LLP, by Alan W. Duncan, Manning A. Connors, and
Heather H. Wright, for defendant appellees, cross-appellants.
Plaintiffs appeal from an order granting defendant Victor
Gamble (Gamble) and defendant Paul Longhurst's (Longhurst)
motion to dismiss for lack of personal jurisdiction. Gamble and
Longhurst cross-appeal from an order deeming service of the
proposed record timely and from an order entered denying their
motion to dismiss for insufficient service of process. We affirm.
Plaintiffs James Robbins (J. Robbins) and Thomas Robbins
(T. Robbins) were residents of North Carolina. Defendants Leo
Ingham (Ingham) and Gamble were directors of defendant Trinity
Court Management, Ltd. (Trinity Court), a corporation chartered
in the Isle of Guernsey. Gamble was a resident of the Isle of
Guernsey. Longhurst was a resident of the Isle of Guernsey and an
employee of Trinity Court.
Phillip Hegg (Hegg), an attorney and resident of Charlotte,
North Carolina, was retained by Trinity Court as its representative
in North Carolina. J. Robbins and T. Robbins claimed Hegg
contacted them about an investment opportunity with Trinity Court
and that defendants guaranteed the safety of their principal in the
investment. Subsequently, J. Robbins and T. Robbins transferred
$600,000 to Trinity Court for investment purposes. They alleged,
thereafter, that their investment suffered a loss in excess of
$425,000. On 1 October 2004, J. Robbins, T. Robbins, Robbins Invfor Ltd.
and Robbins Investments, LLC filed suit against Ingham, Gamble,
Longhurst, and Trinity Court seeking damages for their losses.
(See footnote 1)
After the suit was filed, Gamble and Longhurst filed a motion to
dismiss for lack of personal jurisdiction and improper service.
Affidavits were submitted and a hearing occurred. On 11 March
2005, the trial court denied the individual defendants' motion to
dismiss for insufficient service of process. On 8 July 2005, the
trial court granted Gamble and Longhurst's motion to dismiss for
lack of personal jurisdiction, but denied Ingham's.
On 5 August 2005, Ingham filed a notice of appeal.
(See footnote 2)
8 August 2005, plaintiffs filed a notice of appeal from the order
granting Gamble and Longhurst's motion to dismiss for lack of
personal jurisdiction. On 18 August 2005, Gamble and Longhurst
filed a cross notice of appeal from the earlier order denying their
motion to dismiss for insufficient service of process.
On 26 August 2005, Ingham filed a motion for an extension of
time up to and including 10 October 2005 to serve his proposed
record on appeal because he needed additional time in which toprepare the record because he claimed he had engaged in ongoing
settlement discussions. Ingham's motion stated that counsel for
all parties consented to it and an order granting the motion was
entered 26 August 2005. Subsequent to the trial court's order
entered 26 August 2005, plaintiffs' counsel stated in a motion to
deem service timely that it became apparent that Ingham would not
continue his appeal as a result of a tentative settlement.
Therefore, plaintiffs' counsel prepared the proposed record on
appeal and served it on defendants. On 17 October 2005, plaintiffs
filed a motion to deem the service of the proposed record timely.
On 18 October 2005, Gamble and Longhurst filed a motion to dismiss
plaintiffs' appeal pursuant to Rule 11 of the Rules of Appellate
Procedure asserting that plaintiffs' proposed record on appeal was
not served timely. On 31 October 2005, the trial court entered an
order finding plaintiffs' service of the proposed record timely,
and denying Gamble and Longhurst's motion to dismiss. Finally, on
7 November 2005, Gamble and Longhurst filed a further cross notice
of appeal from an order filed 31 October 2005 which denied their
motion to dismiss plaintiffs' appeal.
 Defendants first contend that plaintiffs' appeal should be
dismissed because plaintiffs did not timely serve the proposed
record. We disagree.
A motion to dismiss an appeal is a matter within the
discretion of the trial court. Harvey v. Stokes, 137 N.C. App.119, 124, 527 S.E.2d 336, 339 (2000). It is well established that
where matters are left to the discretion of the trial court,
appellate review is limited to a determination of whether there was
a clear abuse of discretion. White v. White, 312 N.C. 770, 777,
324 S.E.2d 829, 833 (1985).
The North Carolina Rules of Appellate Procedure provide that
[w]hen there are multiple appellants (2 or more), whether
proceeding separately or jointly, as parties aligned in interest,
or as cross-appellants, there shall nevertheless be but one record
on appeal, and the appellants shall attempt to agree to the
procedure for constituting a proposed record on appeal. N.C.R.
App. P. 11(d). The times for taking action under Rule 11 may be
extended pursuant to Rule 27(c). N.C.R. App. P. 11(f). Rule 27(c)
states courts for good cause shown may upon motion extend any of
the times prescribed by these rules or by order of court for doing
any act required or allowed under these rules; or may permit an act
to be done after the expiration of such time. N.C.R. App. P.
In the instant case, plaintiffs filed their notices of appeal
on 8 August 2005. Pursuant to N.C.R. App. P. 11, plaintiffs had 35
days to serve defendants their proposed record on appeal, but
plaintiffs did not serve defendants until 11 October 2005.
Subsequently, plaintiffs filed a motion to deem their service of
the proposed record timely due to an extension of time that had
previously been granted to Ingham, as Ingham was the initial party
preparing the record. Defendants asserted that service wasuntimely pursuant to Rule 11, and thus motioned the trial court to
dismiss plaintiffs' appeal.
In response to the parties' motions, the trial court granted
plaintiffs' motions to deem service timely and denied Gamble and
Longhurst's motions to dismiss the appeal. The trial court noted
the apparent misunderstanding regarding the extent of time
available to serve the proposed record in light of the cross-
appeals in this case, but the court stated that Rule 27 allows for
a party to obtain a 30-day extension for serving the proposed
record and that such extension can be granted even after the
deadline for service has passed. The trial court used its
discretion and construed plaintiffs' motion to deem their service
of the proposed record timely as a motion for a 30-day extension
under Rule 27. The 30-day extension granted by the trial court
ultimately deemed plaintiffs' service of the proposed record
timely. After a review of the record, we determine that it was not
an abuse of discretion by the trial judge to deem plaintiffs'
service of the record timely because Rule 27 allowed the trial
judge to grant an extension of time to serve the record on appeal
even after the deadline for service had passed.
 Next, plaintiffs contend that the trial court erred by
dismissing their claims against Gamble for lack of personal
jurisdiction. We disagree.
A two-step analysis is used to determine whether a non-
resident defendant is subject to personal jurisdiction of NorthCarolina's courts. Charter Med., Ltd. v. Zigmed, Inc., 173 N.C.
App. 213, 215, 617 S.E.2d 352, 354, appeal dismissed, 360 N.C. 61,
623 S.E.2d 580 (2005). First, there must be a basis for
jurisdiction under the North Carolina long-arm statute, and second,
jurisdiction over the defendant must comport with the
constitutional standards of due process. Id. On appeal, our review
of a trial court's order determining personal jurisdiction is
limited to 'whether the findings are supported by competent
evidence in the record; if so, this Court must affirm the order [of
the trial court].' Id. (citation omitted). Then, we conduct a de
novo review of the trial court's conclusions of law based on the
facts found by the trial court. Deer Corp. v. Carter, 177 N.C. App.
314, 321-22, 629 S.E.2d 159, 165-66 (2006).
A. Long-arm Statute
The trial court concluded that plaintiffs have not shown any
activity by Gamble that would satisfy the particular requirements
of the North Carolina long-arm statute. We agree. Plaintiffs
contend that Gamble is subject to the long-arm statute under N.C.
Gen. Stat. § 1-75.4(4), (5) (2005). N.C. Gen. Stat. § 1-75.4(4)
provides for personal jurisdiction
[i]n 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
a. Solicitation or services
activities were carried onwithin this State by or on
behalf of the defendant[.]
N.C. Gen. Stat. § 1-75.4(4). Plaintiffs argue that Hegg's contact
with plaintiffs, as an agent for Trinity Court, constitutes a
solicitation under N.C. Gen. Stat. § 1-75.4(4) and subjects Gamble
to personal jurisdiction. We disagree. This argument attempts to
impute the actions of Hegg onto Gamble. We have stated that
plaintiffs may not assert jurisdiction over a corporate agent
without some affirmative act committed in his individual official
capacity. Godwin v. Walls, 118 N.C. App. 341, 348, 455 S.E.2d
473, 479, disc. review allowed, 341 N.C. 419, 461 S.E.2d 757
(1995). Here, J. Robbins' and T. Robbins' affidavits clearly
indicate that Hegg contacted them regarding the investment
opportunities, not Gamble. In fact, no statements in J. Robbins'
or T. Robbins' affidavits, or in the entire record, illustrates
that they were solicited by Gamble or on behalf of Gamble.
Therefore, we conclude that Gamble is not subject to personal
jurisdiction under N.C. Gen. Stat. § 1-75.4(4).
Plaintiffs also contend that Gamble is subject to personal
jurisdiction under N.C. Gen. Stat. § 1-75.4(5) which provides for
personal jurisdiction [i]n any action which: . . . [r]elates to
goods, documents of title, or other things of value shipped from
this State by the plaintiff to the defendant on his order or
direction[.] N.C. Gen. Stat. § 1-75.4(5)(d). Plaintiffs argue
that their transfer of $600,000 to Hegg constitutes a thing of
value shipped from North Carolina and should subject Gamble topersonal jurisdiction. We disagree. Plaintiffs cite in their
brief the affidavits of J. Robbins and T. Robbins in support of
their contention, but the affidavits state that the money was
transferred to a corporation that was incorporated by Hegg, which
in turn wired it to defendants. Nothing in the affidavits
illustrate that plaintiffs transferred the money from North
Carolina to Gamble on his order or direction. Therefore, we
conclude that Gamble is not subject to personal jurisdiction under
N.C. Gen. Stat. § 1-75.4(5).
Thus, after a review of the record, we agree with the trial
court when it stated [p]laintiffs have not shown any activity by
Gamble that would satisfy the particular requirements of North
Carolina's long-arm statute.
B. Due process analysis
 The two subsections of the long-arm statute discussed
above were the only provisions asserted by plaintiffs as conferring
personal jurisdiction on Gamble. Therefore, since we have
concluded that plaintiffs have not shown any activity by Gamble
that would satisfy the particular requirements of North Carolina's
long-arm statute, our analysis could end. We do note, however,
that cases are clear that our long-arm statute was intended to make
available to North Carolina courts the full jurisdictional powers
permissible under due process. Dillon v. Funding Corp., 291 N.C.
674, 676, 231 S.E.2d 629, 630 (1977). Thus, we will briefly
address the due process analysis. In conducting a due process analysis, we apply the standard
set out in International Shoe Co. v. Washington, 326 U.S. 310, 316,
90 L. Ed. 95, 102 (1945): a defendant must have certain minimum
contacts with our state such that the maintenance of the suit does
not offend 'traditional notions of fair play and substantial
justice.' Tutterrow v. Leach, 107 N.C. App. 703, 707, 421 S.E.2d
816, 819 (1992) (citation omitted). Our Supreme Court has
emphasized that minimum contacts between the defendant and the
forum state are absolutely necessary for our state to invoke
jurisdiction. Chadbourn, Inc. v. Katz, 285 N.C. 700, 705, 208
S.E.2d 676, 679 (1974), appeal dismissed, 333 N.C. 466, 428 S.E.2d
185 (1993). It is essential that the defendant purposefully avails
itself of the privilege of conducting activities within the forum
state. Whether minimum contacts are present is determined by
ascertaining what is fair and reasonable under the circumstances,
not by using a mechanical formula. Better Business Forms, Inc. v.
Davis, 120 N.C. App. 498, 500, 462 S.E.2d 832, 833 (1995).
The trial court concluded after having carefully scrutinized
the affidavits and other documents of record, that Gamble did not
have the required minimum contacts sufficient to justify haling him
into the courts of North Carolina. It appears to this Court that
plaintiffs make two separate arguments. First, plaintiffs argue
that Gamble, individually, had sufficient minimum contacts with
North Carolina to satisfy due process, and second, that the acts of
others imputed to Gamble satisfies the due process requirements.
We disagree on both counts. First, we will discuss why Gamble, individually, did not have
sufficient minimum contacts with North Carolina to satisfy due
process. Although Gamble was a director of Trinity Court nothing
in the record illustrates that Gamble solicited plaintiffs to
invest with Trinity Court. In fact, the affidavits of J. Robbins
and T. Robbins state that it was Hegg, not Gamble, who contacted
plaintiffs regarding investment opportunities with Trinity Court.
Further, the affidavit of Gamble states that he has never visited
North Carolina, has never met plaintiffs, has never spoken with
plaintiffs, and has never given investment advice to plaintiffs.
We find nothing in the record to contradict Gamble's statements.
Therefore, after a review of the record, we agree with the trial
court when it concluded [e]xcept for Gamble's status as a director
and principal shareholder of ... [Trinity Court], the ... [trial
court] has found no such contacts [sufficient to satisfy the due
Second, plaintiffs argue that the activities undertaken by
Hegg, Ingham and Trinity Court benefitted Gamble as a director
and/or shareholder of Trinity Court, thus imputing sufficient
minimum contacts onto Gamble. We have stated that personal
jurisdiction over an individual officer or employee of a
corporation may not be predicated merely upon the corporate
contacts with the forum. Godwin, 118 N.C. App. at 348, 455 S.E.2d
at 479. The minimum contacts analysis focuses on the actions of
the non-resident defendant over whom jurisdiction is asserted, and
not on the unilateral actions of some other entity. Centura Bankv. Pee Dee Express, Inc., 119 N.C. App. 210, 213, 458 S.E.2d 15, 18
Plaintiffs cite three cases in their brief in an attempt to
prove that Hegg's, Ingham's and Trinity Court's contacts should be
imputed to Gamble: Better Business Forms, Inc., 120 N.C. App. 498,
462 S.E.2d 832; Centura Bank, 119 N.C. App. 210, 458 S.E.2d 15; and
Buying Group, Inc. v. Coleman, 296 N.C. 510, 251 S.E.2d 610 (1979).
All three of these cases are easily distinguished from the instant
case because in all three cases the individual defendants, in
addition to their roles as officers, completed an act in their
individual capacities that would make them subject to personal
jurisdiction. For example, in Better Business Forms, Inc., we
found sufficient minimum contacts existed as to two individual
defendants who owned a corporate buyer, but we noted that both
individuals had obligated themselves to purchase a business by
signing personal guarantees. Better Business Forms, Inc., 120 N.C.
App. at 501, 462 S.E.2d at 834. Similarly, in Centura Bank, we
found individual defendants subject to personal jurisdiction in
North Carolina, but we also noted that the individuals were
individual guarantors. Centura Bank, 119 N.C. App. at 214, 458
S.E.2d at 19. Finally, in Buying Group, Inc., the Supreme Court of
North Carolina decided the State had personal jurisdiction over an
individual defendant partly because the defendant had signed a
promissory note in his individual capacity, had attended trade
shows in North Carolina, and had a continuing relationship with aNorth Carolina corporation. Buying Group, Inc., 296 N.C. at 516,
251 S.E.2d at 614.
In the instant case, a review of the record does not compel us
to conclude that North Carolina has personal jurisdiction over
Gamble. Unlike the cases discussed, we believe the facts of this
case do not show Gamble acting in his individual capacity to a
point where North Carolina has personal jurisdiction over Gamble.
We affirm the trial court.
Finally, defendants contend the trial court erred in holding
that plaintiffs attempted service via Federal Express satisfied the
Hague Convention. Since we affirm the trial court's order
regarding the personal jurisdiction issue, we need not reach or
consider whether the trial court erred by failing to dismiss the
complaint on the basis of insufficiency of service of process.
Accordingly, the trial court did not err in granting
plaintiffs' motions to deem service timely and denying Gamble and
Longhurst's motions to dismiss the appeal. Further, the trial
court did not err in granting Gamble's motion to dismiss for lack
of personal jurisdiction. Moreover, we do not reach the issue
regarding the possible insufficient service of process.
Chief Judge MARTIN and Judge HUNTER concur.
A companion case was filed involving different plaintiffs
and the same defendants, Rodgers v. Ingham
, (No. COA0501558), ___
N.C. App. ___, ___ S.E.2d ___ (filed 17 October 2006). The legal
issues and material facts of that case and the instant case are
The actual notice of appeal was not included in the record
on appeal, but was referred to in a consent motion for extension
of time to file the record on appeal filed 26 August 2005 by
Ingham. It was also referenced in defendant cross-appellants'
brief and defendants note it is uncontested that Ingham filed his
notice of appeal on 5 August 2005.
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