Hanes Construction Co. v. Hotmix & Bituminous Equip. Co.

552 S.E.2d 177, 146 N.C. App. 24, 2001 N.C. App. LEXIS 786
CourtCourt of Appeals of North Carolina
DecidedSeptember 4, 2001
DocketNo. COA00-736
StatusPublished
Cited by1 cases

This text of 552 S.E.2d 177 (Hanes Construction Co. v. Hotmix & Bituminous Equip. Co.) 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
Hanes Construction Co. v. Hotmix & Bituminous Equip. Co., 552 S.E.2d 177, 146 N.C. App. 24, 2001 N.C. App. LEXIS 786 (N.C. Ct. App. 2001).

Opinions

WYNN, Judge.

In this appeal, we agree with Hanes Construction Company (a North Carolina corporation) that under the facts of this matter, the contacts between Hotmix & Bituminous Equipment Company (an Indiana corporation) and the State of North Carolina were sufficient to give North Carolina courts in personam jurisdiction over it. See [25]*25Collector Cars of Nags Head, Inc. v. G.C.S. Electronics, 82 N.C. App. 579, 347 S.E.2d 74 (1986). Accordingly, we reverse the trial court’s order finding no personal jurisdiction.

Hanes, a North Carolina corporation having its principal office and place of business in Lexington, North Carolina, filed this action in Davidson County, North Carolina, against Hotmix, an Indiana corporation with its principal place of business in Noblesville, Indiana. In its complaint, Hanes alleged that Hotmix breached an agreement between the parties by delaying the loading of equipment and failing to load all equipment on trucks sent to Indiana by Hanes.

Hanes is involved in the asphalt business and Hotmix sells among other things, equipment used to produce asphalt. Hotmix has advertised for the sale of construction equipment in a magazine, “The Asphalt Contractor.” This magazine is published thirteen times a year and is mailed free of charge to all asphalt plant owners, contractors, and paving maintenance companies throughout the United States and Canada.

The president of Hanes, Mr. Simerson, consulted the magazine, “The Asphalt Contractor” and called the number listed on the advertisement. In response, the president of Hotmix, Mr. Haskin, quoted a price over the telephone for the equipment Mr. Simerson was interested in purchasing; and, Mr. Simerson went to Indiana to look at the equipment. In September 1998, Hanes entered into a contract for $120,000 with Hotmix to purchase numerous items of equipment used in the asphalt paving business. The agreement was signed by Hanes at its place of business in North Carolina and forwarded to Hotmix. The contract stated that Hanes was responsible for providing the necessary trucks required for shipping. When the third-party shipper arrived, he was advised by Hotmix that the trucks were not appropriate for shipping the contracted items. Therefore, Hotmix delayed and also refused to load certain items, including a hot oil heater, a special conveyer, and a compressor valued in excess of $50,000.

On 21 September 1998, Hanes and Hotmix signed a marketing agreement to sell a used asphalt plant in Lexington, North Carolina. Mr. Simerson, on behalf of Hanes, signed a contract in North Carolina for Hotmix to sell a used Little Ford Model 122-60 Asphalt Plant, located in Lexington, North Carolina.

On 8 January 1999, Hanes filed a complaint in Davidson County, North Carolina alleging breach of contract. Hotmix filed a motion to [26]*26dismiss under Rule 12 (b)(2) of the North Carolina Rules of Civil Procedure for lack of jurisdiction over the defendant. The trial court granted Hotmix’s motion and Hanes appealed to this Court.

The sole issue presented by this appeal is whether the trial court properly granted Hotmix’s motion to dismiss for lack of personal jurisdiction. The granting of a motion to dismiss for lack of jurisdiction is immediately appealable. See N.C. Gen. Stat. § 1-277(b) (1999); Teachy v. Coble Dairies, Inc., 306 N.C. 324, 293 S.E.2d 182 (1982). “The standard of review of an order determining personal jurisdiction is whether the findings of fact by the trial court are supported by competent evidence in the record; if so, this Court must affirm the order of the trial court.” Replacements, Ltd. v. MidweSterling, 133 N.C. App. 139, 140-41, 515 S.E.2d 46, 48 (1999).

Our Courts have adopted a two-part test to determine whether a court may exercise in personam jurisdiction over a nonresident defendant. See Mony Credit Corp. v. Ultra-Funding Corp., 100 N.C. App. 646, 648, 397 S.E.2d 757, 758 (1990). “First, the court must determine whether the North Carolina ‘long-arm’ statute, N.C. Gen. Stat. § 1-75.1 et seq., confers jurisdiction over defendant. Second, the court must determine whether the exercise of personal jurisdiction violates defendant’s right to due process.” Id. “The question for the [appellate] court is whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief can be granted under some legal theory, whether properly labeled or not.” Miller v. Nationwide Mut. Ins. Co., 112 N.C. App. 295, 300, 435 S.E.2d 537, 541 (1993), disc. review denied, 335 N.C. 770, 442 S.E.2d 519 (1994).

Hanes contends that the trial court erred in granting defendant’s motion to dismiss for lack of jurisdiction over the person of the defendant where the defendant met both the statutory and constitutional requirements for personal jurisdiction. We agree.

The long-arm statute “is liberally construed to find personal jurisdiction over nonresident defendants to the full extent allowed by due process,” DeArmon v. B. Mears Corp., 67 N.C. App. 640, 643, 314 S.E.2d 124, 126 (1984), rev’d on other grounds, 312 N.C. 749, 325 S.E.2d 223 (1985). The statute, provides a basis for personal jurisdiction when an action:

Arises out of a promise, made anywhere to the plaintiff or to some third party for the plaintiff’s benefit, by the defendant to [27]*27deliver or receive within this State, or to ship from this State goods, documents of title, or other things of value; or ... .

See N.C. Gen. Stat. § l-75.4(5)(c) (1999). A promise to deliver goods to a third-party carrier rather than to the contracting party is sufficient to confer statutory jurisdiction under N.C. Gen. Stat. § l-75.4(5)(c) when the parties to the contract contemplated shipment in North Carolina. See Collector Cars of Nags Head, Inc. v. G.C.S. Electronics, 82 N.C. App. 579, 581, 347 S.E.2d 74, 76 (1986).

In the subject case, Hanes entered into a contract with Hotmix to purchase numerous items of equipment used in the asphalt paving business. The agreement was signed by Hanes in North Carolina and forwarded to Hotmix. The breach of contract claim involves asphalt paving equipment, which was promised to be delivered to a third-party carrier in Indiana by Hotmix. Thus, we must agree with Hanes’ contention that the promise in the subject case to deliver goods to a carrier is sufficient to establish personal jurisdiction over a foreign corporation under the long-arm statute.

Since we have determined that personal jurisdiction is authorized by the long-arm statute, we must now address whether the exercise of personal jurisdiction over Hotmix comports with due process requirements under the United States Constitution. See Fraser v.

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Bluebook (online)
552 S.E.2d 177, 146 N.C. App. 24, 2001 N.C. App. LEXIS 786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hanes-construction-co-v-hotmix-bituminous-equip-co-ncctapp-2001.