An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-698


Filed: 21 March 2006


         v.                        Alamance County
                                No. 04 CVD 2112

    Appeal by plaintiff from order entered 18 January 2005 by Judge G. Wayne Abernathy in Alamance County District Court. Heard in the Court of Appeals 27 February 2006.

    Carl D. Buckland, Sr., pro se, plaintiff-appellant.

    Wishart, Norris, Henninger & Pittman, P.A., by Pamela S. Duffy, for defendant-appellee.

    BRYANT, Judge.

    Carl D. Buckland, Sr., (plaintiff) appeals from an order entered 18 January 2005 dismissing his complaint on the ground of lack of personal jurisdiction. For the following reasons, we affirm the order.


    In allowing defendant's Motion to Dismiss, the trial court found as follows:
        1. The Plaintiff filed an unverified complaint in which he alleged the defendant, a citizen and resident of Tennessee, engaged in interstate commerce by routinely advertising goods for sale on [eBay], including a Case 2390 Tractor which the Plaintiff purchased from the Defendant on April 22, 2004, and a Case 2590 Tractor which Plaintiff attempted topurchase in May, 2004. Plaintiff transferred by wire a $2000.00 deposit at a cost of $119.00 and has not received the tractor nor refund. For purposes of this decision only, the [c]ourt assumes these allegations are true.

        2. Defendant filed a Motion to Dismiss accompanied by an affidavit from which the [c]ourt finds that the Defendant is a resident of Tennessee that he has never lived or worked in North Carolina, nor has he had an office or place of business in North Carolina, that he has sold goods on [eBay] but has not targeted any particular state and that he had sold one tractor (Case 2390) to the Plaintiff which is the only transaction he has completed in North Carolina.

        3. Prior to the controverted sale and attempted purchase of the Case 2590 Tractor, the Defendant's only contacts with North Carolina were the use of the internet auction site, [eBay], and the sale of the Case 2390 to the Plaintiff. There is no evidence that the Defendant delivered the tractor to the Plaintiff in North Carolina nor that he came to North Carolina to consummate the sale. Defendant's auction originated in Tennessee and the [c]ourt finds that Plaintiff's bid, although made in North Carolina, was accepted in Tennessee.

        4. Although the Plaintiff's response states that jurisdiction is conferred by NCGS 1-75.4(c) the [c]ourt finds that no evidence was offered to show that unsolicited bulk electronic mail was sent into the State by computer services of an electronic mail service provider in violation of the policies of the electronic mail service provider. Notwithstanding this, the [c]ourt finds that the Plaintiff has alleged an injury to property in this State. The [c]ourt further finds that the Defendant's act of originating the [eBay] auction occurred outside of this State for the purpose of solicitation in this and all other states.

        . . .
        THEREFORE, BASED UPON THE FOREGOING FINDINGS OF FACT, THE COURT CONCLUDES AS A MATTER OF LAW that even if the Plaintiff's evidence demonstrates a prima facie compliance with NCGS 1-75.4(4)(a) or (c), the Findings of Fact shown by the Plaintiff's evidence, including the placement of an internet advertisement and one prior sale, do not constitute sufficient minimum contacts with North Carolina to comply with the due process clause of the United States Constitution.


    In deciding whether jurisdiction may be exercised over a nonresident defendant, the court must determine: (1) whether a statutory basis for exercise of jurisdiction exists, and if so, (2) whether the exercise of jurisdiction violates due process of law. Dillon v. Numismatic Funding Corp., 291 N.C. 674, 675, 231 S.E.2d 629, 630 (1977). The burden of proving the existence of grounds for the exercise of personal jurisdiction is on the plaintiff. Murphy v. Glafenhein, 110 N.C. App. 830, 834, 431 S.E.2d 241, 243 (1993).
    Plaintiff argues jurisdiction over defendant is conferred by N.C. Gen. Stat. § 1-75.4(4)(c). This statute permits the exercise of jurisdiction “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” and where “[u]nsolicited 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.” N.C.G.S. § 1-75.4(4)(c) (2005).    In the instant case, plaintiff made no evidentiary showing that defendant misused an electronic mail service. Moreover, plaintiff has not established that the exercise of jurisdiction would not violate due process. The trial court found no evidence showing unsolicited bulk mail was sent into this state by an electronic mail service provider in violation of the provider's policies. The trial court did find that even if jurisdiction could be asserted pursuant to the provisions of N.C. Gen. Stat. § 1-75.4, the placement of an internet advertisement and one prior sale do not constitute sufficient minimum contacts with North Carolina to comply with the due process requirements of the due process clause of the United States Constitution.
    The facts of this case are remarkably similar to those of Stallings v. Hahn, 99 N.C. App. 213, 215-16, 392 S.E.2d 632, 633-34 (1990). In that case, the only contacts between the defendant and the forum state were that plaintiff answered an ad placed in a national magazine, made telephone calls to the out-of-state defendant, and mailed a cashier's check to the defendant. This Court held that the North Carolina court lacked in personam jurisdiction over the defendant because the defendant lacked sufficient contacts with this state to justify exercise of jurisdiction over him.
    Here, the only contacts were the solicitation for bids on eBay, e-mails exchanged between the parties, and the wire transfer of money to defendant. In his affidavit in opposition to the motion, defendant states he has never lived in North Carolina,never had an office or place of business in North Carolina, never worked in North Carolina, and never shipped any goods to North Carolina. In soliciting for bids on eBay, defendant does not target any particular state. When plaintiff purchased the first tractor from him, plaintiff went to Tennessee to take delivery of the tractor. Plaintiff is the first and only resident of North Carolina to whom defendant sold any goods on eBay.
    “The standard of review of an order determining personal jurisdiction is whether the findings are supported by competent evidence in the record . . . .” Better Bus. Forms, Inc. v. Davis, 120 N.C. App. 498, 500, 462 S.E.2d 832, 833 (1995). “If the[y] . . . are supported by competent evidence, they are conclusive on appeal despite evidence to the contrary.” Cameron-Brown Co. v. Daves, 83 N.C. App. 281, 285, 350 S.E.2d 111, 114 (1986) (citing J.M. Thompson Co. v. Doral Mfg. Co., 72 N.C. App. 419, 424, 324 S.E.2d 909, 912-13 (1985)). We find the evidence recited above is competent evidence to support the trial court's determination. The order allowing the motion to dismiss for lack of personal jurisdiction is therefore affirmed.
    Chief Judge MARTIN and Judge GEER concur.
    Report per Rule 30(e).

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