{ "id": 9191691, "name": "MRI/SALES CONSULTANTS OF ASHEVILLE, INC., Plaintiff v. EDWARDS PUBLICATIONS, INC., Defendant", "name_abbreviation": "MRI/Sales Consultants of Asheville, Inc. v. Edwards Publications, Inc.", "decision_date": "2003-03-18", "docket_number": "No. COA02-542", "first_page": "590", "last_page": "596", "citations": [ { "type": "official", "cite": "156 N.C. App. 590" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "414 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1992, "pin_cites": [ { "page": "33", "parenthetical": "citations omitted" }, { "page": "93" }, { "page": "33" }, { "parenthetical": "non-numbered alterations in original" } ], "opinion_index": 0 }, { "cite": "331 N.C. 88", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2499908 ], "year": 1992, "pin_cites": [ { "page": "92-93", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0088-01" ] }, { "cite": "556 S.E.2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "596" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 722", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9381298 ], "year": 2001, "pin_cites": [ { "page": "726" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0722-01" ] }, { "cite": "471 U.S. 462", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6205101 ], "weight": 2, "year": 1985, "pin_cites": [ { "parenthetical": "stating that due process is not offended by the enforcement of a consent to jurisdiction provision that is obtained through free negotiations and is not unreasonable or unjust" }, { "parenthetical": "stating that due process is not offended by the enforcement of a consent to jurisdiction provision that is obtained through free negotiations and is not unreasonable or unjust" } ], "opinion_index": 0, "case_paths": [ "/us/471/0462-01" ] }, { "cite": "519 S.E.2d 317", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "320" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 24", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238795 ], "year": 1999, "pin_cites": [ { "page": "27" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0024-01" ] }, { "cite": "325 S.E.2d 223", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "312 N.C. 749", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4754748 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/312/0749-01" ] }, { "cite": "314 S.E.2d 124", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "126" } ], "opinion_index": 0 }, { "cite": "67 N.C. App. 640", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527003 ], "year": 1984, "pin_cites": [ { "page": "643" } ], "opinion_index": 0, "case_paths": [ "/nc-app/67/0640-01" ] }, { "cite": "392 S.E.2d 632", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "633" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 213", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521913 ], "year": 1990, "pin_cites": [ { "page": "215" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0213-01" ] }, { "cite": "386 S.E.2d 230", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1989, "pin_cites": [ { "page": "233" }, { "page": "234" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 377", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522505 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "381" }, { "page": "381" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0377-01" ] }, { "cite": "546 S.E.2d 90", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "353 N.C. 261", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135782, 135657, 135981, 135737, 135578 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/353/0261-04", "/nc/353/0261-03", "/nc/353/0261-01", "/nc/353/0261-02", "/nc/353/0261-05" ] }, { "cite": "532 S.E.2d 215", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "217-18" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 612", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11080985 ], "year": 2000, "pin_cites": [ { "page": "615" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0612-01" ] }, { "cite": "515 S.E.2d 46", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "48" } ], "opinion_index": 0 }, { "cite": "133 N.C. App. 139", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11217279 ], "year": 1999, "pin_cites": [ { "page": "140-41" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0139-01" ] } ], "analysis": { "cardinality": 645, "char_count": 14083, "ocr_confidence": 0.762, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.2154436416949405 }, "sha256": "32ec7d00be20a8aaddda6993583ef8135bf0ebc7777a5d17bc60878dd0e93f9b", "simhash": "1:8ef9ccee16cf16d5", "word_count": 2190 }, "last_updated": "2023-07-14T21:05:49.893248+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TYSON and LEVINSON concur." ], "parties": [ "MRI/SALES CONSULTANTS OF ASHEVILLE, INC., Plaintiff v. EDWARDS PUBLICATIONS, INC., Defendant" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nEdwards Publications, Inc. (\u201cdefendant\u201d) appeals from an order of the trial court granting North Carolina courts in personam jurisdiction. For the reasons stated herein, we affirm the order of the trial court.\nMRI/Sales Consultants of Ashville, Inc. (\u201cplaintiff\u2019) is a North Carolina corporation with its principal place of business in Buncombe County, North Carolina. Defendant is a corporation incorporated under the laws of the State of Iowa, and registered to do business in the States of Wyoming, Michigan and South Carolina. Defendant\u2019s principal place of business is Seneca, South Carolina.\nPlaintiff is a recruiting firm, specializing in locating candidates to fill positions in the publishing and printing industries. On 25 January 2001, Michael Gibson (\u201cGibson\u201d), an account executive employed with plaintiff, made an unsolicited telephone call from North Carolina to defendant in South Carolina. Gibson contacted Steven Edwards (\u201cSteven\u201d), vice-president of defendant\u2019s corporation. Gibson offered to assist defendant in locating personnel to fill positions at defendant\u2019s corporation, specifically the newspaper division. As a result of the telephone conversation, Jerry Edwards (\u201cEdwards\u201d) gave plaintiff a job search assignment for six positions, none of which were located in North Carolina. Following the telephone conversation in which plaintiff was given the job search assignments, a letter was mailed to defendant confirming the agreement between the parties, establishing service fees and creating deadlines.\nOn 15 February 2001, Edwards contacted plaintiff seeking assistance in finding a web pressman to work in defendant\u2019s Michigan plant. Following the conversation, defendant was again mailed a confirmation letter which contained the following provision:\nBecause we will be performing our services in the State of North Carolina, its laws would be applicable to our relationship, and its court would have jurisdiction over both of us.\nIf these terms do not reflect your understanding of our agreement, please call us immediately. Unless we provide you with a modifying letter, we will rely on your acceptance of referrals from us as establishing that you have accepted these terms.\nThe job assignment to find a web pressman for the Michigan plant is the underlying action of the matter before this Court.\nOn 7 March and 12 March 2001, plaintiff made arrangements for a telephone interview between a candidate from New Hampshire and the management of defendant\u2019s Michigan plant. As a result of the telephone interview, plaintiff made arrangements, at defendant\u2019s expense, for the candidate to travel from New Hampshire to visit the Michig\u00e1n facility. On 19 March 2001, plaintiff was notified by defendant that an offer had been made to the candidate. Following the notification, plaintiff mailed an invoice to defendant\u2019s headquarters in South Carolina. The candidate accepted the offer and was employed by defendant as a web pressman. In May 2001, plaintiff called defendant concerning the unpaid invoice for locating a web pressman to work at defendant\u2019s Michigan facility. On 15 June 2001, defendant advised plaintiff that the web pressman had been terminated and that defendant did not intend to pay the invoice.\nOn 18 June 2001, plaintiff brought suit against defendant in the District Court of Buncombe County, North Carolina, seeking damages. In response to plaintiff\u2019s complaint, defendant filed a motion to dismiss under North Carolina General Statutes \u00a7 1A-1, Rule 12(b)(2) for lack of personal jurisdiction. Defendant pursued the motion on the following grounds: (1) defendant is a corporation organized and existing under the laws of the State of Iowa; (2) defendant is not doing business in North Carolina; and (3) defendant has never done business in the State of North Carolina so as to invoke the jurisdiction of the North Carolina courts. The trial court denied defendant\u2019s motion and found that personal \u201cjurisdiction does in fact exist\u201d over defendant. From this order, defendant appeals.\nThe dispositive issue before this Court is whether the trial court erred in denying defendant\u2019s motion to dismiss for lack of personal jurisdiction. For the reasons stated hereafter, we affirm the order of the trial court.\n\u201cThe 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.\u201d Replacements, Ltd. v. Midwesterling, 133 N.C. App. 139, 140-41, 515 S.E.2d 46, 48 (1999). We note that the trial court\u2019s order is devoid of any findings of fact. Where no findings are made, proper findings are presumed, and the role of the appellate court is to review the record for competent evidence to support these presumed findings. Bruggeman v. Meditrust Acquisition Co., 138 N.C. App. 612, 615, 532 S.E.2d 215, 217-18, disc. review denied, 353 N.C. 261, 546 S.E.2d 90 (2000).\nThe question of whether the trial court has personal jurisdiction over a nonresident defendant involves a twofold determination. Fraser v. Littlejohn, 96 N.C. App. 377, 381, 386 S.E.2d 230, 233 (1989). First, the trial court must determine whether the North Carolina long-arm statute allows jurisdiction over the defendant. Id. If so, the trial court must then determine whether the exercise of this power comports with the due process requirements of the Fourteenth Amendment. Id. The burden is on the plaintiff to establish that one of the statutory grounds for jurisdiction is applicable. Stallings v. Hahn, 99 N.C. App. 213, 215, 392 S.E.2d 632, 633 (1990). The long-arm statute \u201cis liberally construed to find personal jurisdiction over nonresident defendants to the full extent allowed by due process.\u201d DeArmon v. B. Mears Corp., 67 N.C. App. 640, 643, 314 S.E.2d 124, 126 (1984), reversed on other grounds, 312 N.C. 749, 325 S.E.2d 223 (1985).\nWe first address the issue of statutory authority. Defendant contends that since the underlying matter concerns a job located in Michigan and a candidate from New Hampshire, the North Carolina courts do not have personal jurisdiction. Defendant, however, misapprehends the statutory requirement for a court to invoke personal jurisdiction over a defendant. North Carolina\u2019s long-arm statute provides for in personam jurisdiction in the following actions:\n(5) Local Services, Goods or Contracts. \u2014 In any action which:\na. Arises out of a promise, made anywhere to the plaintiff or to some third party for the plaintiffs benefit, by the defendant ... to pay for services to be performed in the State by the plaintiff;\nor\nb. Arises out of services actually performed for the plaintiff by the defendant within this State, or services actually performed for the defendant by the plaintiff within this State if such performance within this State was authorized or ratified by the defendant....\nN.C. Gen. Stat. \u00a7 l-75.4(5)(d) (2001).\nIn the instant case, the services provided by plaintiff were sufficient to bring defendant under the jurisdiction of the North Carolina court. The record reveals that (1) defendant employed plaintiff to locate candidates to fill available job positions within defendant\u2019s corporation, (2) plaintiff\u2019s only office is physically located in North Carolina, and (3) from that office plaintiff\u2019s employees used desk, chairs, telephones, computers and other equipment physically located in North Carolina, to search for and locate candidates presented to defendant for the position of web pressman at defendant\u2019s Michigan facility. Furthermore, the terms of the services to be provided by plaintiff were memorialized in a confirmation letter mailed to defendant, in which plaintiff states \u201cwe will be performing our services in North Carolina.\u201d The record is devoid of evidence that defendant did not agree with the terms expressed in the confirmation letter. The record shows that by accepting candidates from plaintiff, defendant accepted the terms of the confirmation letter and promised to pay for services to be performed in North Carolina by plaintiff. Pursuant to North Carolina\u2019s long-arm statute, services provided by plaintiff were sufficient to bring defendant under the jurisdiction of the North Carolina court.\nHaving concluded that personal jurisdiction is authorized by the long-arm statute, we now turn to the issue of due process. See Fraser, 96 N.C. App. at 381, 386 S.E.2d at 234. \u201cWhen personal jurisdiction is alleged to exist pursuant to the long-arm statute, the question of statutory authority collapses into one inquiry \u2014 whether defendant has the minimum contacts with North Carolina necessary to meet the requirements of due process.\u201d Hiwassee Stables, Inc. v. Cunningham, 135 N.C. App. 24, 27, 519 S.E.2d 317, 320 (1999). However, it is not necessary to conduct the two-step determination when a party has validly consented to the jurisdiction of a court. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473 n.14, 85 L. Ed. 2d 528, 540 n.14 (1985) (stating that due process is not offended by the enforcement of a consent to jurisdiction provision that is obtained through free negotiations and is not unreasonable or unjust).\nIn the case at bar, the language in the confirmation letter clearly states that plaintiff will be performing services \u201cin the State of North Carolina, its laws would be applicable to our relationship, and its courts would have jurisdiction over both of us.\u201d Typically, contracting parties use three types of provisions to avoid litigation concerning jurisdiction and governing law: (1) forum selection; (2) consent to jurisdiction; and (3) choice of law. Corbin Russwin, Inc. v. Alexander\u2019s Hdwe., Inc., 147 N.C. App. 722, 726, 556 S.E.2d 592, 596 (2001).\nThe first type, the choice of law provision, names a particular state and provides that the substantive laws of that jurisdiction will be used to determine the validity and construction of the contract, regardless of any conflicts between the laws of the named state and the state in which the case is litigated.\nThe second type, the consent to jurisdiction provision, concerns the submission of a party or parties to a named court or state for the exercise of personal jurisdiction over the party or parties consenting thereto. By consenting to the jurisdiction of a particular court or state, the contracting party authorizes that court or state to act against him.\nA third type, a true forum selection provision, goes one step further than a consent to jurisdiction provision. A forum selection provision designates a particular state or court as the jurisdiction in which the parties will litigate disputes arising out of the contract and their contractual relationship.\nJohnston County v. R. N. Rouse & Co., 331 N.C. 88, 92-93, 414 S.E.2d 30, 33 (1992) (citations omitted).\n\u201cDue to the varying language used by parties drafting these clauses and the tendency to combine such clauses in one contractual provision, the courts have often confused the different types of clauses.\u201d Id. at 93, 414 S.E.2d at 33. The following guidance has been supplied by one commentator who recognized the confusion faced by many courts:\n(1) A typical forum-selection clause might read: \u201c[B]oth parties agree that only the New York Courts shall have jurisdiction over this contract and any controversies arising out of this contract.\u201d ....\n(2) A . . . \u201cconsent to jurisdiction\u201d clause[] merely specifies a court empowered to hear the litigation, in effect waiving any objection to personal jurisdiction or venue. Such a clause might provide: \u201c[T]he parties submit to the jurisdiction of the courts of New York.\u201d Such a clause is \u201cpermissive\u201d since it allows the parties to air any dispute in that court, without requiring them to do so.\n(3) ... A typical choice-of-law provision provides: \u201cThis agreement shall be governed by, and construed in accordance with, the law of the State of New York.\u201d\nId. (non-numbered alterations in original).\nHere, we are concerned with a consent to jurisdiction clause. The confirmation letter states that the laws of North Carolina will \u201cbe applicable to [the] relationship, and its courts [will] have jurisdiction over both [plaintiff and defendant].\u201d This provision is similar to the consent of jurisdiction example supplied in Johnston County. The confirmation letter further states that plaintiff will \u201crely on [defendant\u2019s] acceptance of referrals ... as establishing that [defendant] acceptfs] [the] terms [of the letter].\u201d Therefore, it is not necessary for this Court to determine whether the long-arm statute comports with due process requirements, because defendant consented to the jurisdiction of the North Carolina court. We conclude that the trial court's-order properly supports its conclusion that personal jurisdiction did exist over defendant.\nThe order of the trial court is hereby\nAffirmed.\nJudges TYSON and LEVINSON concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Walter A. Dinteman, President, for plaintiff appellee.", "Biggers & Hunter, PLLC, by William T. Biggers, for defendant appellant." ], "corrections": "", "head_matter": "MRI/SALES CONSULTANTS OF ASHEVILLE, INC., Plaintiff v. EDWARDS PUBLICATIONS, INC., Defendant\nNo. COA02-542\n(Filed 18 March 2003)\n1. Jurisdiction\u2014 long arm \u2014 employee search\nJurisdiction was authorized under North Carolina\u2019s long-arm statute where defendant hired plaintiff to find candidates for jobs, plaintiff\u2019s only office is in North Carolina, plaintiff\u2019s employees used equipment in that office to search for and locate candidates to be a web pressman at defendant\u2019s Michigan plant, and a letter memorializing the terms of service said that plaintiff would be performing its services in North Carolina. N.C.G.S. \u00a7 1-75.4(5).\n2. Jurisdiction\u2014 long arm \u2014 consent\nIt was not necessary to determine whether a long-arm statute comported with due process where defendant consented to jurisdiction through a letter confirming plaintiff\u2019s terms of service.\nAppeal by defendant from order entered 20 February 2002 by Judge Earl J. Fowler in Buncombe County Superior Court. Heard in the Court of Appeals 29 January 2003.\nWalter A. Dinteman, President, for plaintiff appellee.\nBiggers & Hunter, PLLC, by William T. Biggers, for defendant appellant." }, "file_name": "0590-01", "first_page_order": 620, "last_page_order": 626 }