Barloworld Fleet v. Palmetto Forest

681 S.E.2d 498
CourtCourt of Appeals of North Carolina
DecidedAugust 18, 2009
DocketCOA08-1391
StatusPublished

This text of 681 S.E.2d 498 (Barloworld Fleet v. Palmetto Forest) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barloworld Fleet v. Palmetto Forest, 681 S.E.2d 498 (N.C. Ct. App. 2009).

Opinion

681 S.E.2d 498 (2009)

BARLOWORLD FLEET LEASING, LLC, Plaintiff,
v.
PALMETTO FOREST PRODUCTS, INC. and Christopher B. Riley, Defendants.

No. COA08-1391.

Court of Appeals of North Carolina.

August 18, 2009.

*500 Reginald L. Yates, Charlotte, for plaintiff-appellee.

Law Offices of Dale S. Morrison, by Dale S. Morrison, Charlotte, for defendants-appellants.

STROUD, Judge.

This case presents the sole question of whether the exercise of personal jurisdiction over defendants by the courts of the State of North Carolina comports with due process. Because we conclude that it does, we affirm.

I. Background

On 6 February 2003, plaintiff executed an equipment lease with defendant Palmetto Forest Products, Inc. ("Palmetto"). Plaintiff's address appears on the front of the lease document as 11301-C Granite Street, Charlotte, North Carolina. Palmetto's address is 667 Whitesville Road, Moncks Corner, South Carolina. Defendant Christopher Riley ("Riley"), signed the lease on behalf of Palmetto as president of the corporation. The lease provided that "THIS AGREEMENT SHALL BE GOVERNED BY AND SUBJECT TO THE INTERNAL LAWS OF THE STATE OF NORTH CAROLINA, NOTWITHSTANDING CHOICE OF LAW RULES." On 30 April 2004, the parties entered into a second equipment lease containing an identical choice of law provision. All payments pursuant to the lease were made to plaintiff's agent Barloworld Handling LP, also located in Charlotte, North Carolina.

On or about 8 April 2008, plaintiff filed a complaint in Superior Court, Mecklenburg County, alleging defendants had failed to pay sums due under the lease agreements. On or about 24 April 2008, defendants moved to dismiss the complaint for want of personal and subject matter jurisdiction. The motion alleged that defendants had never "done business in North Carolina[,]" and that "[a]ll events, transactions, negotiations, circumstances and performance of the two (2) lease contracts ... occurred in or near Charleston, South Carolina."

The trial court heard the motion to dismiss on 3 June 2008. The trial court found that (1) the lease agreements contained North Carolina choice of law provisions, (2) "[t]he two lease agreements were consummated by Daniel Vincini's [sic] signature in Charlotte, North Carolina[,] and [(3)] the contracts between the parties were made in North Carolina and were to be performed in North Carolina." Accordingly, the trial court denied defendants' motion. Defendants appeal.

II. Standard of Review

On review of the denial of a motion to dismiss for want of personal jurisdiction, this Court first considers "whether the trial court's findings of fact are supported by competent record evidence." Deer Corp. v. Carter, 177 N.C.App. 314, 324, 629 S.E.2d 159, 167 (2006). If "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," id. at 326, 629 S.E.2d at 168, "North Carolina statutes permit our courts to entertain this action against defendants, and, if so, whether this exercise of jurisdiction violates due process[,]" Saxon v. Smith, 125 N.C.App. 163, 168, 479 S.E.2d 788, 791 (1997) (citation, brackets and quotation marks omitted).

*501 III. Findings of Fact

Defendants contend that there is insufficient evidence to support any findings that the contracts entered into by plaintiff and defendants have a connection with the State of North Carolina.

Defendants specifically argue that any of the trial court's findings based on an affidavit submitted by Daniel Vicini ("the Vicini affidavit") were erroneous because the Vicini affidavit was not competent evidence. They argue that the trial court should have stricken the Vicini affidavit because it is "based on hearsay" and "does not ... set forth any facts that might have been known to Vicini as the result of his own personal knowledge."

Affidavits which support a motion to dismiss for want of personal jurisdiction "`shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein[.]'" Hankins v. Somers, 39 N.C.App. 617, 620, 251 S.E.2d 640, 642 (quoting N.C.R.App. P. 56(e), and applying the competence standard for affidavits pursuant to a summary judgment motion to a motion to dismiss for want of personal jurisdiction), disc. review denied, 297 N.C. 300, 254 S.E.2d 920 (1979). The Vicini affidavit states on its face that the affiant "has personal knowledge" of "the matters and things that transpired with regard to the two lease agreements involved in this lawsuit[.]" Furthermore, Vicini's signature appears on both of the lease contracts. Accordingly, we conclude that Vicini's affidavit, based on his personal knowledge, was competent evidence on which the trial court could base its findings.

The Vicini affidavit states that "the defendants executed the lease[s] and forwarded [them] to the plaintiff in North Carolina for acceptance. [I, Daniel Vicini] accepted the lease[s] ... which formed the contract[s] between the plaintiff and defendants." The record further contains copies of the lease agreements, in which plaintiff's physical address is clearly stated as Charlotte, North Carolina. Payments pursuant to the contracts were collected by plaintiff's agent in Charlotte, North Carolina. Taken together, this competent evidence supports the trial court's finding that the contracts between the parties were made in North Carolina and were to be performed in North Carolina. This argument is overruled.

IV. Due Process

Defendants argue that even if all the trial court's findings are based on competent evidence, exercise of personal jurisdiction in the courts of North Carolina offends due process because defendants are South Carolina residents who never solicited business in North Carolina. The United States Supreme Court addressed a similar argument in Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), and determined that Florida's exercise of personal jurisdiction over a Michigan resident "did not offend due process[,]" id. at 487, 105 S.Ct. at 2190, 85 L.Ed.2d at 550, even though (1) the defendant had never even visited the state of Florida, and (2) the only contact defendant had with the plaintiff during contract negotiations was with representatives of the plaintiff's Michigan office, id. at 488, 105 S.Ct. at 2190-91, 85 L.Ed.2d at 551 (Stevens, J., dissenting) (citing the findings of the lower court). For the reasons that follow, we conclude that Burger King controls and that the trial court's exercise of personal jurisdiction sub judice did not offend due process.

A. Minimum Contacts

Defendants contend that they did not establish "minimum contacts" in North Carolina. The first step in the due process inquiry for personal jurisdiction is "whether the defendant purposefully established `minimum contacts' in the forum State." Burger King, 471 U.S. at 474, 105 S.Ct. at 2183, 85 L.Ed.2d at 542. Burger King

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McGee v. International Life Insurance
355 U.S. 220 (Supreme Court, 1957)
Hanson v. Denckla
357 U.S. 235 (Supreme Court, 1958)
Burger King Corp. v. Rudzewicz
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Estate of Gainey v. Southern Flooring & Acoustical Co.
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Deer Corporation v. Carter
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Hankins v. Somers
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479 S.E.2d 788 (Court of Appeals of North Carolina, 1997)
Barloworld Fleet Leasing, LLC v. Palmetto Forest Products, Inc.
681 S.E.2d 498 (Court of Appeals of North Carolina, 2009)

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Bluebook (online)
681 S.E.2d 498, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barloworld-fleet-v-palmetto-forest-ncctapp-2009.