Cherry Bekaert & Holland v. Brown

394 S.E.2d 651, 99 N.C. App. 626, 1990 N.C. App. LEXIS 887
CourtCourt of Appeals of North Carolina
DecidedAugust 7, 1990
Docket8926SC1074
StatusPublished
Cited by37 cases

This text of 394 S.E.2d 651 (Cherry Bekaert & Holland v. Brown) 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
Cherry Bekaert & Holland v. Brown, 394 S.E.2d 651, 99 N.C. App. 626, 1990 N.C. App. LEXIS 887 (N.C. Ct. App. 1990).

Opinion

GREENE, Judge.

Defendant appeals the trial court’s denial of his Rule 12(b)(2) motion to dismiss plaintiff’s breach of contract suit for lack of personal jurisdiction.

The record shows that defendant J. Charles Brown is a certified public accountant who now resides in Alabama. Plaintiff Cherry, Bekaert & Holland is a North Carolina partnership of certified public accountants with its principal place of business in Charlotte, North Carolina, since approximately 1974. Plaintiff first employed defendant in 1975 as a salaried accountant in Goldsboro, North Carolina. Defendant moved to plaintiff’s Alabama office in 1977, where he drew a salary until 1979. In 1979, defendant became an “income partner” with plaintiff partnership and in 1981, became an “equity partner.” Defendant signed the “equity partner” agreement on 9 January 1981, in Mobile, Alabama, and plaintiff’s managing partner accepted and signed the agreement on behalf of the partnership on 14 January 1981, in Mecklenburg County, North Carolina. The “equity partnership” agreement provided in pertinent part:

15.7 . . . The withdrawing or expelled Partner’s cash basis capital account shall be paid to him within ninety (90) days following the effective date of withdrawal or expulsion.
*628 15.9 . . . said withdrawing or expelled Partner shall pay to the Partnership, for the purchase of any client served . . . by said Partner within a three[-] (3) year period following the termination of his relationship with the Partnership, an amount not less than one hundred and fifty percent (150%) of the fees charged said client by the Partnership during the last twelvef-] (12) month period during which the Partnership served said client prior to said client being served by the said Partner plus an amount representing the excess, if any, of the fees charged by the said Partner for the twelve[-] (12) month period commencing with the time said Partner first served said client over the fees charged by the Partnership referred to above.
18.1 This agreement is made in Charlotte, North Carolina, and its validity, construction and effect shall be governed by and construed under the laws of the State of North Carolina.

Defendant gave notice that he was resigning from plaintiff’s partnership effective 31 December 1987. After defendant’s resignation from the partnership, he received his interest in the capital account from the partnership. Defendant continued to advise plaintiff’s clients after his withdrawal from the partnership, and pursuant to section 15.9 of the partnership agreement plaintiff seeks monetary damages from defendant “for each client [defendant] serves within a three[-] (3) year period following his withdrawal from [plaintiff], an amount not less than one hundred fifty percent (150%) of the fees charged to the client by [plaintiff] during the last twelve (12) months during which [plaintiff] served with client.” Defendant was personally served with process in Mobile, Alabama, and moved to dismiss this complaint in North Carolina according to N.C.G.S. § 1A-1, Rule 12(b)(2) (1983).

In summary form, the evidence adduced at the hearing of defendant’s motion to dismiss indicates that during defendant’s relationship with plaintiff partnership, the partnership held meetings which defendant attended in Charlotte, North Carolina. The North Carolina Association of Certified Public Accountants listed defendant as a “non-resident” accountant and he paid dues to the North Carolina Association based on his nonresident status. Defendant maintained a public accounting license in the State of North Carolina as well as in the State of Alabama. Defendant provided accounting and tax services to some clients in North Carolina from his office *629 in Alabama. He regularly received his “base-draw and his year-end draw” from plaintiff’s earnings and profits, which were distributed from funds deposited in a North Carolina bank. Plaintiff’s payments of these funds were regularly processed out of plaintiff’s computer center located in Gastonia, North Carolina, and mailed to defendant in Alabama. As a partner in the partnership, defendant traveled to North Carolina “from time to time” to report on the progress of the Mobile, Alabama, office, was involved in telephone conference calls from Alabama with other partners or employees of plaintiff in Charlotte, North Carolina, and regularly corresponded with the Charlotte office “regarding the management and administrative concerns” of plaintiff. In denying defendant’s motion to dismiss, the trial court entered an order which provided in pertinent part:

It Appearing to the Court from the facts set forth in the Motion of the defendant, and in the opposition papers filed by the plaintiffs[,] including the affidavits and exhibits attached thereto and the pleadings and papers filed herein, that the defendant’s . . . [motion] should be denied . . .

The issues are whether the trial court should have denied defendant’s motion to dismiss plaintiff’s complaint for lack of personal jurisdiction because (I) statutory “long-arm” jurisdiction (A) did not exist since defendant did not order or direct plaintiff to send him from North Carolina a ‘thing of value’ and (B) plaintiff’s action does not relate to the ‘thing of value’ sent from North Carolina; and (II) defendant did not have the required minimum contacts with North Carolina.

Although neither party states the basis for jurisdiction of this appeal, we note that “[a]ny interested party shall have the right of immediate appeal from an adverse ruling as to the jurisdiction of the court over the person or property of the defendant . . .” N.C.G.S. § 1-277(b) (1983).

We make a two-part inquiry to determine whether in personam jurisdiction exists. Tompkins v. Tompkins, 98 N.C. App. 299, 301, 390 S.E.2d 766, 767 (1990). “First, the transaction must fall within the language of the State’s ‘long arm’ statute. Second, the exercise of jurisdiction must not violate the due process clause of the fourteenth amendment" to the United States Constitution.” Tom Togs, Inc. v. Ben Elias Industries Corp., 318 N.C. 361, 364, 348 S.E.2d 782, 785 (1986) (citation omitted). “[When] jurisdiction is challenged, *630 plaintiff has the burden of proving prima facie that a statutory-basis for jurisdiction exists.” Williams v. Institute for Computational Studies, 85 N.C. App. 421, 424, 355 S.E.2d 177, 179 (1987) (citation omitted). “[T]he failure to plead the particulars of personal jurisdiction is not necessarily fatal, so long as the facts alleged permit the reasonable inference that jurisdiction may be acquired.” Tompkins, at 304, 390 S.E.2d at 769 (citation omitted).

We note that the trial court did not make any findings of fact to support his ruling denying defendant’s motion to dismiss.

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Bluebook (online)
394 S.E.2d 651, 99 N.C. App. 626, 1990 N.C. App. LEXIS 887, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cherry-bekaert-holland-v-brown-ncctapp-1990.