Buck v. Heavner

377 S.E.2d 75, 93 N.C. App. 142, 1989 N.C. App. LEXIS 136
CourtCourt of Appeals of North Carolina
DecidedMarch 7, 1989
Docket8811DC454
StatusPublished
Cited by18 cases

This text of 377 S.E.2d 75 (Buck v. Heavner) 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
Buck v. Heavner, 377 S.E.2d 75, 93 N.C. App. 142, 1989 N.C. App. LEXIS 136 (N.C. Ct. App. 1989).

Opinion

COZORT, Judge.

The sole question presented in this appeal is whether the trial court erred in denying defendant’s motion to dismiss plaintiffs claim for lack of personal jurisdiction. We hold that the trial court did not have personal jurisdiction over defendant and, therefore, improperly denied the motion to dismiss.

Plaintiff is a resident of North Carolina. Defendant is a resident of Ohio. The parties were married on 12 September 1978 and thereafter resided in the State of Louisiana. In 1980, they moved to Colorado, where they resided together until their separation in early 1982. One child was born during the marriage. In March of 1982, plaintiff and the minor child moved to North Carolina, where they resided at the time the present action was filed.

After moving to North Carolina, plaintiff brought an action in this State for child custody and child support. Counsel for defendant apparently made a general appearance on defendant’s behalf in that action, and orders for custody and support were entered on 25 June 1982 and 8 October 1982. An additional order was entered on 11 February 1983 upon plaintiff’s motion for arrearages in child support payments.

On or about 9 December 1982, defendant petitioned the District Court of Arapahoe County, Colorado, for a decree dissolving the marriage and dividing the parties’ marital property. On 20 December 1982 the Colorado court entered a Decree of Dissolution nunc pro tunc 9 December 1982 and awarded the marital home to defendant. The court further ordered plaintiff to quitclaim her interest in that property to defendant, who was, in turn, ordered to execute and deliver to plaintiff a promissory note in the face amount of $7,500.00, with ten percent simple interest, payable within two years from the date of the court’s order, and secured by a deed of trust for the benefit of plaintiff. It is this promissory note which forms the basis of the present action.

On 17 September 1987 plaintiff filed the instant action alleging that payment was due under the terms of the promissory note *144 and that payment had not been made. Plaintiff prayed for a money judgment in the amount of the note, plus interest and attorney’s fees. Through his counsel, defendant made a limited appearance and moved the court to dismiss under Rule 12(b)(2) of the N.C. Rules of Civil Procedure on the ground that the courts of the State of North Carolina lacked jurisdiction over the person of defendant in the matter. The trial court denied the motion. Defendant appealed pursuant to N.C. Gen. Stat. § l-277(b). We reverse.

A determination of whether a nonresident defendant is subject to the in personam jurisdiction of the courts of this State involves a two-pronged analysis: first, whether there is a statutory basis for the exercise of in personam jurisdiction by the court; and second, whether the exercise of jurisdiction comports with the requirements of the due process clause of the Fourteenth Amendment. Dillon v. Numismatic Funding Corp., 291 N.C. 674, 231 S.E. 2d 629 (1977).

Plaintiff argues that the statutory basis for the exercise of personal jurisdiction in this case is found in N.C. Gen. Stat. § l-75.4(5)(c) (1988). That subsection of the State’s “long-arm” statute provides, in pertinent part, that a court of North Carolina may exercise personal jurisdiction over a defendant properly served in an action which

[a]rises out of a promise, made anywhere to the plaintiff ... by the defendant to deliver or receive within this State . . . goods, documents of title, or other things of value ....

N.C. Gen. Stat. § l-75.4(5)(c) (1988). This Court has held that “[m]oney payments are clearly a thing of value within the meaning of G.S. l-75.4(5)(c),” Pope v. Pope, 38 N.C. App. 328, 331, 248 S.E. 2d 260, 262 (1978), and that a defendant’s promise to make money payments to a holder in North Carolina is within the purview of the long-arm statute. Wohlfahrt v. Schneider, 66 N.C. App. 691, 693, 311 S.E. 2d 686, 687 (1984). Defendant argues, however, that, unlike the defendant in Wohlfahrt, he executed the promissory note pursuant to a court order and that there was no voluntary promise as contemplated in § 5(c) of the statute. While we are not persuaded by defendant’s effort to engraft a voluntariness requirement onto the statute, we need not resolve that particular issue here. Assuming arguendo that our long-arm statute gives North Carolina courts in personam jurisdiction over defendant, we nevertheless believe that the exercise of personal jurisdiction in this case would violate the second prong in the analysis, the due process clause of the Fourteenth Amendment to the Constitution of the United States.

*145 Due process demands that the maintenance of a lawsuit against a nonresident 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, 66 S.Ct. 154, 158 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 85 L.Ed. 278, 283, 61 S.Ct. 339, 343 (1940)). The “constitutional touchstone” of this due process requirement is whether the defendant has purposefully established minimum contacts with the forum state so that he should reasonably anticipate being haled into court in that forum. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 85 L.Ed. 2d 528, 542, 105 S.Ct. 2174, 2183 (1985). When there are sufficient “continuous and systematic” contacts between the defendant and the forum state, the state may exercise “general jurisdiction” over the defendant in causes of action that are unrelated to defendant’s forum state activities. Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414 n.9, 415, 80 L.Ed. 2d 404, 411 n.9, 104 S.Ct. 1868, 1872 n.9 (1984). Absent such continuous and systematic contacts, a state may exercise “specific jurisdiction” over a defendant in lawsuits that arise out of or are related to defendant’s contacts with the forum state. Id. at n.8. See also Tom Togs, Inc. v. Ben Elias Indus. Corp., 318 N.C. 361, 348 S.E. 2d 782 (1986). The case before us involves a question of specific jurisdiction.

In cases involving specific jurisdiction, the focus of the minimum contacts inquiry is on the relationship among the defendant, the forum state, and the litigation. See Shaffer v. Heitner, 433 U.S. 186, 204, 53 L.Ed. 2d 683, 698, 97 S.Ct. 2569, 2580 (1977). The resolution of the inquiry necessarily turns on the facts of each case, Parris v. Garner Commercial Disposal, Inc., 40 N.C. App. 282, 253 S.E. 2d 29, disc. review denied, 297 N.C. 455, 256 S.E.

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Bluebook (online)
377 S.E.2d 75, 93 N.C. App. 142, 1989 N.C. App. LEXIS 136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buck-v-heavner-ncctapp-1989.