Intercept Corp. v. Calima Financial, LLC

2007 ND 180, 741 N.W.2d 209, 2007 N.D. LEXIS 175, 2007 WL 3358063
CourtNorth Dakota Supreme Court
DecidedNovember 14, 2007
Docket20060307
StatusPublished
Cited by21 cases

This text of 2007 ND 180 (Intercept Corp. v. Calima Financial, LLC) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Intercept Corp. v. Calima Financial, LLC, 2007 ND 180, 741 N.W.2d 209, 2007 N.D. LEXIS 175, 2007 WL 3358063 (N.D. 2007).

Opinions

SANDSTROM, Justice.

[¶ 1] Edgar Santos-Hill appeals a district court judgment finding him personally responsible for Intercept Corporation’s $63,500 judgment against Calima Financial, LLC. We affirm, concluding the district court acted properly in piercing the corporate veil.

I

[¶ 2] Santos-Hill, a Florida resident, formed Calima Financial, LLC, in April 2004 in the state of Utah. Calima was in the business of payday lending, and Santos-Hill was the only member listed on the articles of organization. Intercept, a North Dakota corporation, is in the business of electronically transferring funds for its clients. In June 2004, Santos-Hill contacted Intercept by telephone, seeking to utilize its services. Santos-Hill, as vice [211]*211president of Calima, completed an application to do business with Intercept. In its application, Calima stated the average single transaction would be $300. In July 2004, Calima and Intercept entered into a contract to have Intercept electronically transfer funds for Calima. Calima started with $25,000 in capital, and $7,000 of that was used as a security deposit with Intercept when the entities began their relationship. No additional capital was ever contributed.

[¶ 3] Under the parties’ agreement, Santos-Hill would request Intercept to transfer funds from Calima’s account to Calima’s clients, and then when payments were due from Calima’s clients, Intercept would transfer funds from Calima’s clients to Calima’s account. Calima warranted under the agreement that the funds it requested Intercept to transfer from Cali-ma’s account to Calima’s clients were funds existing in Calima’s account. The agreement also stated the funds transferred by Intercept “cannot exceed the amount agreed to between Intercept and the Company [Calima].” The agreement was to be governed by North Dakota law.

[¶ 4] From December 21, 2004, to December 24, 2004, a series of electronic fund transfers performed by Intercept were returned because of non-sufficient funds in Calima’s account. The amount of the transfers totaled $63,500, which was distributed as follows: $40,000 to Costeño Contracting, Inc., $16,000 to Santos-Hill, and $7,500 to Delys St. Hill. Santos-Hill claimed the transactions were payday loans to Calima clients.

[¶ 5] In March 2005, Intercept sued Calima and Santos-Hill individually for breach of contract, seeking a return of the $63,500. Santos-Hill answered, alleging he was not personally responsible for the debt. Intercept then moved for summary judgment. Santos-Hill moved to deny Intercept’s motion for summary judgment, and to dismiss the complaint, claiming he was an employee of Calima and thus not personally liable for the debt. The district court granted summary judgment against Calima and Santos-Hill.

[¶ 6] Santos-Hill moved to vacate the summary judgment entered against him. After a hearing on the motion, the court vacated the judgment under N.D.R.Civ.P. 60(b)(vi) as to Santos-Hill because it found there were genuine issues of material fact as to what Santos-Hill’s role was with Calima other than simply as an officer of the company. The court concluded the issue of piercing the corporate veil could not be decided as a matter of law, and Intercept would have the burden at trial of establishing the necessary elements to pierce the corporate veil.

[¶ 7] Prior to trial, Santos-Hill sought to amend his answer, asserting the district court lacked personal jurisdiction. He claimed he was unaware of the requirement of pleading affirmative defenses under North Dakota law. The court denied the motion, concluding Santos-Hill made a voluntary appearance in the action by filing an answer and other motions without raising lack of personal jurisdiction.

[¶ 8] A bench trial was held in August 2006. In its memorandum and opinion following trial, the court found Santos-Hill was not acting simply as an officer of Calima. The court found he had obtained the $63,500 for his own benefit. Therefore, the court pierced the corporate veil of Calima and concluded Santos-Hill was personally liable for the $63,500 judgment against Calima.

[¶ 9] The district court had subject matter jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. Santos-Hill’s appeal is timely under N.D.R.App.P. 4(a). This Court has juris[212]*212diction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.

II

[¶ 10] On appeal, Santos-Hill argues the district court lacked personal jurisdiction over him individually. A district court acquires personal jurisdiction over a party under N.D.R.Civ.P. 4. Rowley v. Cleaver, 1999 ND 158, ¶ 9, 598 N.W.2d 125. Under N.D.R.Civ.P. 4(b)(4), a court may acquire personal jurisdiction over a non-resident if the party makes a voluntary general appearance and fails to assert the lack of personal jurisdiction. Id. The concept of “appearance” is broadly defined, and it includes an assortment of acts by a defendant that respond to the complaint sufficiently to give the plaintiff notice of the defendant’s intention to contest the claim. Hatch v. Hatch, 484 N.W.2d 283, 285 (N.D.1992). A lack-of-personal-jurisdiction defense is waived if it is neither made by motion nor included in a responsive pleading. N.D.R.Civ.P. 12(h)(1). A district court’s ruling regarding personal jurisdiction is a question of law, which is fully reviewable on appeal. Bolinske v. Herd, 2004 ND 217, ¶ 7, 689 N.W.2d 397.

[¶ 11] Santos-Hill individually filed an answer in response to Intercept’s complaint. He did not raise the lack-of-personal-jurisdiction defense in his answer, nor did he timely file a separate motion alleging lack of personal jurisdiction under N.D.R.Civ.P. 12(b). His answer gave Intercept sufficient notice of his intention to contest the claim; therefore, his answer constituted a voluntary appearance under N.D.R.Civ.P. 4(b)(4). Because Santos-Hill failed to properly raise the lack-of-jurisdiction defense, he waived the defense under N.D.R.Civ.P. 12(h)(1). Therefore, we conclude the district court had personal jurisdiction over Santos-Hill.

III

[¶ 12] Santos-Hill argues he was an employee of Calima, and not a member of the company, as the district court found. A district court’s finding of fact is subject to the clearly erroneous standard of review. N.D.R.Civ.P. 52(a). A finding of fact is clearly erroneous under N.D.R.Civ.P. 52(a) if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, this Court is left with a definite and firm conviction a mistake has been made. In re D.M., 2007 ND 62, ¶ 6, 730 N.W.2d 604.

[¶ 13] Santos-Hill formed Calima in April 2004. He produced documents showing he had transferred ownership of Calima to Cristina Munoz, a resident of Panama, shortly after Calima was formed. He also testified in a deposition that Munoz was the owner. At the time of the December 2004 transactions, however, Santos-Hill was still listed as the owner of Calima in the State of Utah, where Calima was formed. There was also evidence that Santos-Hill referred to Calima as “my company” in an August 2004 e-mail he sent to Intercept after he allegedly transferred ownership. Intercept was never informed of a transfer of ownership. The district court found Santos-Hill’s testimony and the documentary evidence showing a transfer of ownership were not credible. We conclude the district court did not err in finding Santos-Hill was a member of Calima.

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Cite This Page — Counsel Stack

Bluebook (online)
2007 ND 180, 741 N.W.2d 209, 2007 N.D. LEXIS 175, 2007 WL 3358063, Counsel Stack Legal Research, https://law.counselstack.com/opinion/intercept-corp-v-calima-financial-llc-nd-2007.