Tejal Vyas, LLC v. Carriage Park Ltd. Partnership

*45 TIMMONS-GOODSON, Judge

dissenting.

I respectfully dissent from the majority’s opinion which affirms summary judgment in favor of defendants.

The majority has established that defendants’ activity satisfies the statutory requirements of the jurisdictional analysis. Thus, I focus this dissent on the question of whether defendants have the minimum contacts with North Carolina necessary to meet the requirements of due process. I find the cases of Carson v. Brodin, 160 N.C. App. 366 , 585 S.E.2d 491 (2003) and New Bern Pool & Supply Co. v. Graubert, 94 N.C. App. 619 , 381 S.E.2d 156 (1989), aff'd, 326 N.C. 480 , 390 S.E.2d 137 (1990), to be instructive on the issue.

In Carson , the plaintiffs were North Carolina residents who decided to build a vacation home in Virginia. They entered into a contract with the defendant, a Virginia resident, to construct the home. The plaintiffs initiated contact with the defendant in Virginia. The plaintiffs signed the initial construction contract in Virginia. The defendant mailed a subsequent contract to the plaintiffs in North Carolina, which they signed and mailed back to the defendant in Virginia. The defendant visited the plaintiffs in North Carolina two or three times to discuss the construction project, he telephoned them in North Carolina on numerous occasions, and sent numerous mailings to them in North Carolina. The plaintiffs sued the defendant in North Carolina for breach of contract, breach of warranty, and negligence, all relating to the construction of their home in Virginia. The defendant challenged North Carolina’s jurisdiction over the matter, arguing that his contacts in North Carolina were not sufficient to give the state personal jurisdiction over him.

On appellate review, this Court held that “[b]y negotiating within the state and entering into a contract with North Carolina residents, defendant purposefully availed himself of the privilege of conducting activities within North Carolina with the benefits and protection of its laws.” Carson, 160 N.C. App. at 372 , 585 S.E.2d at 496 (citing Hanson v. Denckla, 357 U.S. 235 (1958)). “Defendant’s actions in contracting with North Carolina residents establish minimum contacts for specific jurisdiction because the actions are directly related to the basis of plaintiffs’ claim.” Id. (citing Fran’s Pecans, Inc. v. Greene, 134 N.C. App. 110, 115 , 516 S.E.2d 647, 651 (1999)). “Because we have found minimum contacts sufficient to establish specific jurisdiction, due process is satisfied.” Id. at 372-73, 585 S.E.2d at 496 .

*46 In the case sub judice, the evidence presented tends to show that defendants corresponded with plaintiffs or plaintiffs’ attorneys in North Carolina via mail and telephone on numerous occasions. The mail correspondence included the following: a memorandum mailed by defendants to North Carolina soliciting investments in the Carriage Park project; a subscription document executed by plaintiffs in North Carolina and mailed to defendants in Illinois; and a check issued by plaintiffs in North Carolina, drawn on a North Carolina bank, and mailed to defendants in Illinois. I submit that these mailings and telephone calls are evidence of three factors in a minimum contacts analysis. See New Bern Pool & Supply Co., 94 N.C. App. at 624 , 381 S.E.2d at 159 (“The factors to be considered are (1) quantity of the contacts, (2) nature and quality of the contacts, (3) the source and connection of the cause of action to the contacts, (4) the interest of the forum state, and (5) convenience to the parties.”) (citation omitted).

The minimum contacts analysis is satisfied as follows: The mailings and telephone calls demonstrate the “quantity of the contacts” by demonstrating the volume of communication between plaintiffs and defendants at the time of the transaction. The communications demonstrate the “nature and quality of the contacts” as evidence of a high-level transaction involving substantial documentation and a sum of $100,000. Finally, the communications demonstrate the “source and connection of the cause of action to the contacts” as evidence that the transaction that is the subject of these communications is the transaction that is in dispute in this case.

The fourth factor, “the interest of the forum state,” is best described by the following language from New Bern Pool & Supply Co.: “The interest of the State of North Carolina in providing consumer protection for its citizens and corporate entities and a forum for the adjudication of controversies involving them is substantial.” 94 N.C. App. at 625 , 381 S.E.2d at 160 . This Court should have an interest in providing a forum for plaintiffs to resolve this controversy, particularly because it involves such a large investment of $100,000.

With regard to the fifth factor, “convenience of the parties,” we note that “[t]here is almost always some hardship to the party required to litigate away from home.” Byham v. House Corp., 265 N.C. 50, 60 , 143 S.E.2d 225, 234 (1965). However, this state has a greater interest in providing a convenient forum for its citizens to seek redress for injuries. Inspirational Network, Inc. v. Combs, 131 *47 N.C. App. 231, 241 , 506 S.E.2d 754, 761 (1998). “In light of the powerful public interest of [North Carolina] in protecting its citizens against out-of-state tortfeasors, the court has more readily found assertions of jurisdiction constitutional.” Id. (citing Ciba-Geigy Corp. v. Barnett, 76 N.C. App. 605, 608 , 334 S.E.2d 91, 93 (1985)).

I concede that the case sub judice is distinguished from Carson by the fact that defendant did not travel to North Carolina as the defendant in Carson did. However, I do not consider this to be a determinative factor in awarding personal jurisdiction. In New Bern Pool & Supply Co., this Court asserted personal jurisdiction over a defendant who did not travel to North Carolina in connection with the transaction at issue. 94 N.C. App. 619 , 381 S.E.2d 156 .

In New Bern Pool & Supply Co., the plaintiff was a resident of Craven County, North Carolina, who responded to an advertisement for a Beechcraft Baron airplane that the defendant, a New Jersey resident, placed in an aviation trade magazine. After their initial telephone conversation, the defendant mailed to the plaintiff photographs and specifications for the airplane. The plaintiff mailed to the defendant a check for $5,000 in exchange for the defendant’s promise not to sell the airplane until the plaintiff had the opportunity to travel to New York to examine and inspect the airplane. The parties also negotiated the terms of a potential deal before the plaintiff went to New York.

The plaintiff flew to New York, examined and inspected the airplane, and closed the deal, with the defendant. On that day, the plaintiff twice asked the defendant to give him the log books for the airplane. The defendant did not give the plaintiff the log books. The following morning, as the plaintiff prepared to return to North Carolina, he again asked the defendant for the log books. The defendant gave the log books to the plaintiff just prior to his departure. The plaintiff flew the Beechcraft Baron airplane to North Carolina. During the flight home, the plaintiff discovered that some of the navigation aids aboard the airplane were not functioning properly. The plaintiff later discovered that the airplane was overdue for an inspection.

The plaintiff filed a complaint against the defendant, which the defendant sought to have dismissed on summary judgment for lack of personal and subject matter jurisdiction. The trial court denied the defendant’s motion for summary judgment, and this Court found no error in the trial court’s judgment. This Court held as follows:

*48 Defendant’s intentional acts in this case are such that defendant can be said to have purposely availed himself of the privilege of doing business in the State of North Carolina to the extent that defendant should have reasonably anticipated being haled into court in this State. We conclude that defendant had sufficient minimum contacts with the State of North Carolina so as to allow the trial court to exert personal jurisdiction over him and that the maintenance of this action in North Carolina does not offend traditional notions of fair play and substantial justice.

94 N.C. App. at 626 , 381 S.E.2d at 160 . In the case sub judice, as in New Bern Pool & Supply Co., the totality of the circumstances provides an adequate basis for personal jurisdiction, even though defendants did not travel to North Carolina.

I am satisfied, pursuant to Carson and New Bern Pool & Supply Co., that defendants’ actions establish minimum contacts in North Carolina to establish jurisdiction without offending our “traditional conception of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 326 (1945). Thus, I would reverse the order for summary judgment and remand to the trial court.