{ "id": 8956006, "name": "MARCEL ELUHU, Plaintiff v. VLADIMIR ROSENHAUS, Defendant", "name_abbreviation": "Eluhu v. Rosenhaus", "decision_date": "2003-08-05", "docket_number": "No. COA02-1167", "first_page": "355", "last_page": "364", "citations": [ { "type": "official", "cite": "159 N.C. App. 355" } ], "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": "143 S.E.2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "231" } ], "opinion_index": 0 }, { "cite": "265 N.C. 50", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574397 ], "year": 1965, "pin_cites": [ { "page": "57" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0050-01" ] }, { "cite": "136 L. Ed. 2d 398", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "519 U.S. 1006", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11707203, 11707267, 11707334, 11707368, 11707400, 11707309, 11707438, 11707135, 11707604, 11707477, 11707286, 11707677, 11707517, 11707167 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/us/519/1006-03", "/us/519/1006-04", "/us/519/1006-07", "/us/519/1006-08", "/us/519/1006-09", "/us/519/1006-06", "/us/519/1006-10", "/us/519/1006-01", "/us/519/1006-13", "/us/519/1006-11", "/us/519/1006-05", "/us/519/1006-14", "/us/519/1006-12", "/us/519/1006-02" ] }, { "cite": "84 F.3d 560", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 1793558 ], "year": 1996, "pin_cites": [ { "page": "569-70" } ], "opinion_index": 0, "case_paths": [ "/f3d/84/0560-01" ] }, { "cite": "386 S.E.2d 230", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "234-37" }, { "page": "236-37" } ], "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": "386-87" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0377-01" ] }, { "cite": "348 S.E.2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "787", "parenthetical": "\"It is generally conceded that a state has a 'manifest interest' in providing its residents with a convenient forum for redressing injuries inflicted by out-of-state actors.\"" } ], "opinion_index": 0 }, { "cite": "318 N.C. 361", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4734507 ], "year": 1986, "pin_cites": [ { "page": "367", "parenthetical": "\"It is generally conceded that a state has a 'manifest interest' in providing its residents with a convenient forum for redressing injuries inflicted by out-of-state actors.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0361-01" ] }, { "cite": "231 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "291 N.C. 674", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558922 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/291/0674-01" ] }, { "cite": "537 S.E.2d 854", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "858" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 729", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12134645 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "736" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0729-01" ] }, { "cite": "Cal. Civ. Code \u00a7 43.5", "category": "laws:leg_statute", "reporter": "Cal. Code", "year": 2003, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "814 S.W.2d 340", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9975381 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/sw2d/814/0340-01" ] }, { "cite": "390 S.E.2d 766", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "769", "parenthetical": "allegations of misconduct, \"absent any allegations going to a nexus between such misconduct and this State, are simply insufficient to permit the reasonable inference that personal jurisdiction over defendant could properly be acquired\"" } ], "opinion_index": 0 }, { "cite": "98 N.C. App. 299", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524153 ], "year": 1990, "pin_cites": [ { "page": "304", "parenthetical": "allegations of misconduct, \"absent any allegations going to a nexus between such misconduct and this State, are simply insufficient to permit the reasonable inference that personal jurisdiction over defendant could properly be acquired\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/98/0299-01" ] }, { "cite": "278 S.E.2d 501", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "506" } ], "opinion_index": 0 }, { "cite": "303 N.C. 256", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572768 ], "year": 1981, "pin_cites": [ { "page": "264" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0256-01" ] }, { "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", "weight": 2, "pin_cites": [ { "page": "219" }, { "page": "218", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 612", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11080985 ], "weight": 2, "pin_cites": [ { "page": "617" }, { "page": "615-16" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0612-01" ] }, { "cite": "311 U.S. 457", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6141572 ], "weight": 2, "year": 1940, "pin_cites": [ { "page": "463" }, { "page": "283" } ], "opinion_index": 0, "case_paths": [ "/us/311/0457-01" ] }, { "cite": "326 U.S. 310", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6157001 ], "weight": 2, "year": 1945, "pin_cites": [ { "page": "316", "parenthetical": "quoting Milliken v. Meyer, 311 U.S. 457, 463, 85 L. Ed. 278, 283 (1940)" }, { "page": "102", "parenthetical": "quoting Milliken v. Meyer, 311 U.S. 457, 463, 85 L. Ed. 278, 283 (1940)" } ], "opinion_index": 0, "case_paths": [ "/us/326/0310-01" ] }, { "cite": "455 S.E.2d 473", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "480", "parenthetical": "statute only requires plaintiff to claim listed injuries, not prove them" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 341", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918298 ], "year": 1995, "pin_cites": [ { "page": "349", "parenthetical": "statute only requires plaintiff to claim listed injuries, not prove them" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0341-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-75.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "pin_cites": [ { "page": "(3)" } ], "opinion_index": 0 }, { "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": "541 S.E.2d 733", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "737", "parenthetical": "citations omitted" }, { "page": "736" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9442864 ], "year": 2001, "pin_cites": [ { "page": "672", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0668-01" ] }, { "cite": "158 N.C. App. 376", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9187765 ], "weight": 3, "pin_cites": [ { "page": "379" }, { "page": "378" }, { "page": "382" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0376-01" ] }, { "cite": "327 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "the causes of action for alienation of affections and criminal conversation are still in existence" } ], "opinion_index": 1 }, { "cite": "313 N.C. 324", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724761 ], "year": 1985, "pin_cites": [ { "parenthetical": "the causes of action for alienation of affections and criminal conversation are still in existence" } ], "opinion_index": 1, "case_paths": [ "/nc/313/0324-01" ] }, { "cite": "328 S.E.2d 288", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "attorneys representing a client in a divorce proceeding may not use contingent fee contracts since they tend to promote divorce and discourage reconciliation" } ], "opinion_index": 1 }, { "cite": "313 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4721730 ], "year": 1985, "pin_cites": [ { "parenthetical": "attorneys representing a client in a divorce proceeding may not use contingent fee contracts since they tend to promote divorce and discourage reconciliation" } ], "opinion_index": 1, "case_paths": [ "/nc/313/0313-01" ] }, { "cite": "319 S.E.2d 315", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 1 }, { "cite": "70 N.C. App. 147", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521008 ], "year": 1984, "opinion_index": 1, "case_paths": [ "/nc-app/70/0147-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 8-57", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(c)", "parenthetical": "spouses may not be compelled to testify against each other if confidential information made by one to the other would be disclosed" } ], "opinion_index": 1 }, { "cite": "85 L. Ed. 1143", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1941, "opinion_index": 1 }, { "cite": "312 U.S. 712", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 359329, 359106, 359239, 359020, 359057, 359326, 359028, 359226, 359070 ], "year": 1941, "opinion_index": 1, "case_paths": [ "/us/312/0712-02", "/us/312/0712-07", "/us/312/0712-04", "/us/312/0712-01", "/us/312/0712-03", "/us/312/0712-06", "/us/312/0712-09", "/us/312/0712-08", "/us/312/0712-05" ] }, { "cite": "462 F. Supp. 1246", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4051398 ], "year": 1978, "pin_cites": [ { "parenthetical": "exercising personal jurisdiction where defendant's only contact with the forum state was a single phone call from out-of-state" } ], "opinion_index": 1, "case_paths": [ "/f-supp/462/1246-01" ] }, { "cite": "75 L. Ed. 2d 496", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1983, "opinion_index": 1 }, { "cite": "460 U.S. 1023", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6244425, 6244106, 6245417, 6243020, 6244783, 6243727, 6243379, 6245748, 6242739, 6245148 ], "year": 1983, "opinion_index": 1, "case_paths": [ "/us/460/1023-06", "/us/460/1023-05", "/us/460/1023-09", "/us/460/1023-02", "/us/460/1023-07", "/us/460/1023-04", "/us/460/1023-03", "/us/460/1023-10", "/us/460/1023-01", "/us/460/1023-08" ] }, { "cite": "688 F.2d 328", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1465381 ], "year": 1982, "opinion_index": 1, "case_paths": [ "/f2d/688/0328-01" ] }, { "cite": "143 S.E.2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "234" } ], "opinion_index": 1 }, { "cite": "265 N.C. 50", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574397 ], "year": 1965, "pin_cites": [ { "page": "60" } ], "opinion_index": 1, "case_paths": [ "/nc/265/0050-01" ] }, { "cite": "386 S.E.2d 230", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "237" } ], "opinion_index": 1 }, { "cite": "96 N.C. App. 377", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522505 ], "year": 1989, "pin_cites": [ { "page": "387" } ], "opinion_index": 1, "case_paths": [ "/nc-app/96/0377-01" ] }, { "cite": "537 S.E.2d 854", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2000, "pin_cites": [ { "page": "857" }, { "page": "858" } ], "opinion_index": 1 }, { "cite": "140 N.C. App. 729", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12134645 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "734" }, { "page": "735" } ], "opinion_index": 1, "case_paths": [ "/nc-app/140/0729-01" ] }, { "cite": "546 S.E.2d 90", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 1 }, { "cite": "353 N.C. 261", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135782, 135657, 135981, 135737, 135578 ], "year": 2000, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 1, "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", "pin_cites": [ { "page": "219", "parenthetical": "citations omitted" } ], "opinion_index": 1 }, { "cite": "138 N.C. App. 612", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11080985 ], "pin_cites": [ { "page": "617", "parenthetical": "citations omitted" } ], "opinion_index": 1, "case_paths": [ "/nc-app/138/0612-01" ] }, { "cite": "311 U.S. 457", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6141572 ], "weight": 2, "year": 1940, "pin_cites": [ { "page": "463" }, { "page": "283" } ], "opinion_index": 1, "case_paths": [ "/us/311/0457-01" ] }, { "cite": "326 U.S. 310", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6157001 ], "weight": 2, "year": 1945, "pin_cites": [ { "page": "316", "parenthetical": "quoting Milliken v. Meyer, 311 U.S. 457, 463, 85 L. Ed. 278, 283 (1940), reh'g denied, 312 U.S. 712, 85 L. Ed. 1143 (1941)" }, { "page": "102", "parenthetical": "quoting Milliken v. Meyer, 311 U.S. 457, 463, 85 L. Ed. 278, 283 (1940), reh'g denied, 312 U.S. 712, 85 L. Ed. 1143 (1941)" } ], "opinion_index": 1, "case_paths": [ "/us/326/0310-01" ] } ], "analysis": { "cardinality": 979, "char_count": 23337, "ocr_confidence": 0.751, "pagerank": { "raw": 3.401866790199555e-07, "percentile": 0.8775061789316675 }, "sha256": "5a662e25d1a19e5004b3a5a7f4e625cb5da2fb840afceca99428057cf644c894", "simhash": "1:9f2fd5eaf6ef6e52", "word_count": 3673 }, "last_updated": "2023-07-14T16:27:55.515420+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge LEVINSON concurs.", "Judge TYSON dissents." ], "parties": [ "MARCEL ELUHU, Plaintiff v. VLADIMIR ROSENHAUS, Defendant" ], "opinions": [ { "text": "MARTIN, Judge.\nPlaintiff brought this action seeking compensatory and punitive damages upon allegations that defendant had alienated the affections of plaintiffs wife. Defendant made a special appearance in the matter in order to file a motion to dismiss for lack of personal jurisdiction. The trial court granted defendant\u2019s motion, dismissing the claim for lack of personal jurisdiction over defendant, and plaintiff appeals. We affirm.\nIn his verified complaint, plaintiff alleged that he is a citizen and resident of the State of Tennessee and that defendant is a resident of the State of California, \u201cand maintains a home in Raleigh, Wake County, North Carolina.\u201d He also alleged that an exercise of personal jurisdiction over defendant by the trial court was proper because he committed a tortious act within the State of North Carolina. Aside from general allegations aimed at meeting the elements of the tort of alienation of affections, plaintiff also alleged, \u201c[u]pon information and belief,\u201d that defendant and plaintiffs wife developed a \u201cromantic affair that began in 1998 and has continued until the present. . . . Plaintiff\u2019s wife left the marriage and continued her romantic involvement with the Defendant. . . . For some length of time during the course of his romantic involvement with Plaintiff\u2019s wife, Defendant resided in Wake County, North Carolina.\u201d\nAttached to defendant\u2019s motion to dismiss was a sworn affidavit, in which defendant attested that he had been a citizen and resident of California since August 1999, had resided in Nashville, Tennessee, from August 1997 to July 1999, and resided in Raleigh, North Carolina, from August 1991 to July 1997. He stated that after moving to Nashville, his only contacts with North Carolina included (1) the continued residence of his wife and son in Raleigh, where he visited them occasionally until April 1999, (2) a vacation in Atlantic Beach, NC, from 24 to 27 May 1999, and (3) ownership of a house in Raleigh which he rented to a third party from August 1999 to August 2000. Defendant attested that he sold the house in March 2001. Denying that he had ever had a \u201csexual relationship\u201d with Ms. Eluhu, defendant stated that they worked together in Nashville and \u201cdeveloped a friendship.\u201d He further attested that:\n[t]he only time I have ever had any contact with Plaintiff\u2019s wife in North Carolina was during a three-day vacation to Atlantic Beach in May of 1999, where she was also vacationing, with her three children. During that time, I saw Plaintiffs wife only in public and for a short time at her rented condominium in the presence of her children.\nPlaintiffs former wife, Colette Calmelet-Eluhu, stated in an affidavit that she was a citizen and resident of Tennessee and had never lived in North Carolina. Her description of her friendship with defendant and their contact at Atlantic Beach was similar to that contained in defendant\u2019s affidavit. She stated that she planned the beach vacation before she knew of defendant\u2019s plans to be there at the same time and that her contact with defendant during the beach trip had no effect on her relationship with plaintiff.\nPlaintiff\u2019s ten assignments of error are organized into two main arguments in his brief. Plaintiff argues (1) the findings of fact in the trial court\u2019s order dismissing his complaint were insufficient to permit meaningful appellate review and (2) the trial court erred in finding that federal due process limitations did not permit the exercise of personal jurisdiction over defendant and consequently dismissing plaintiff\u2019s complaint. We reject both arguments.\n\u201cThe trial court\u2019s determination regarding the existence of grounds for personal jurisdiction is a question of fact.\u201d Adams, Kleemeier, Hagan, Hannah & Fouts, PLLC v. Jacobs, 158 N.C. App. 376, 379,-S.E.2d-,-.\nAbsent a request by a party, a trial court is not required to make findings of fact when ruling on a motion. Rather, on appeal it is presumed that the trial court found facts sufficient to support its ruling. If these presumed factual findings are supported by competent evidence, they are conclusive on appeal.\nFilmar Racing, Inc. v. Stewart, 141 N.C. App. 668, 672, 541 S.E.2d 733, 737 (2001) (citations omitted). In the present case, plaintiff has not pointed this Court to any place in the record where he requested such findings and we can find none. \u201cAccordingly, the dispositive issue before us is the sufficiency of the evidence to support [the] determination that personal jurisdiction did not exist.\u201d Id.\nA determination of personal jurisdiction involves a two-part analysis.\nFirst, the North Carolina long-arm statute must permit the exercise of personal jurisdiction. Second, the exercise of personal jurisdiction must comport with the due process clause of the Fourteenth Amendment of the United States Constitution. However, \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 necessary to meet the requirements of due process.\u201d\nId., at 671, 541 S.E.2d at 736 (quoting Hiwassee Stables, Inc. v. Cunningham, 135 N.C. App. 24, 27, 519 S.E.2d 317, 320 (1999)). (citations omitted). In the present case, defendant conceded before the trial court that plaintiff had satisfied the long-arm statute. See N.C. Gen. Stat. \u00a7 1-75.4(3) (2003); Godwin v. Walls, 118 N.C. App. 341, 349, 455 S.E.2d 473, 480 (1995) (statute only requires plaintiff to claim listed injuries, not prove them). Therefore, our inquiry focuses on whether there was evidence in the record to support the trial court\u2019s determination that \u201cthe exercise of personal jurisdiction over Defendant. . . would not comport with due process of law.\u201d\nIn order to determine whether the exercise of personal jurisdiction comports with due process, the trial court must evaluate whether the defendant has \u201ccertain minimum contacts with [the forum state] such that the maintenance of the suit does not offend \u2018traditional notions of fair play and substantial justice.\u2019 \u201d International Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 102 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 85 L. Ed. 278, 283 (1940)).\n\u201cFactors for determining existence of minimum contacts include \u2018(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.\u2019 \u201d In cases which arise from or are related to defendant\u2019s contacts with the forum, a court is said to exercise \u201cspecific jurisdiction\u201d over the defendant. However, in cases . . . where defendant\u2019s contacts with the state are not related to the suit, an application of the doctrine of \u201cgeneral jurisdiction\u201d is appropriate. Under this doctrine, \u201cjurisdiction may be asserted even if the cause of action is unrelated to defendant\u2019s activities in the forum as long as there are sufficient \u2018continuous and systematic\u2019 contacts between defendant and the forum state.\u201d\nBruggeman v. Meditrust Acquisition Co., 138 N.C. App. 612, 617, 532 S.E.2d 215, 219, (citations omitted) disc. review denied, 353 N.C. 261, 546 S.E.2d 90 (2000).\nA trial court ruling on the defendant\u2019s challenge to the exercise of personal jurisdiction may either (1) decide the matter based on affidavits, or (2) conduct an evidentiary hearing with witness testimony or depositions. N.C.G.S. \u00a7 1A-1, Rule 43(e) (2001). Either way, \u201cthe burden is on the plaintiff to prove by a preponderance of the evidence that grounds exist for the exercise of personal jurisdiction over a defendant.\u201d\nAdams, 158 N.C. App. at 378,-S.E.2d at-. The allegations in a complaint are taken as true and controlling unless the defendant supplements its motion to dismiss with affidavits or other supporting evidence, in which case the plaintiff must respond \u201c \u2018by affidavit or otherwise . . . setting forth specific facts showing that the court has jurisdiction.\u2019 \u201d Bruggeman, 138 N.C. App. at 615-16, 532 S.E.2d at 218 (citation omitted). A \u201c \u2018 \u201cverified complaint may be treated as an affidavit if it (1) is made on personal knowledge, (2) sets forth such facts as would be admissible in evidence, and (3) shows affirmatively that the affiant is competent to testify to the matters stated therein.\u201d \u2019 \u201d Adams, 158 N.C. App. at 382,-S.E.2d at-(quoting Spinks v. Taylor and Richardson v. Taylor Co., 303 N.C. 256, 264, 278 S.E.2d 501, 506 (1981)) (citation omitted).\nIn the present case, plaintiff argues there are grounds to assert both specific and general jurisdiction over defendant. In terms of specific jurisdiction, plaintiff argues that \u201c[t]he contacts between Defendant and North Carolina that are related to or give rise to the specific cause of action were those that occurred during the \u2018three-day vacation\u2019 during which Defendant connected with Plaintiff\u2019s wife in Atlantic Beach in May 1999.\u201d Plaintiff\u2019s complaint, however, contains no allegations with respect to this trip, but rather only general allegations as to defendant\u2019s relationship with Ms. Eluhu, several of which either contain no reference to place or time or do not qualify as evidentiary statements as they are based only \u201cupon information and belief.\u201d See Tompkins v. Tompkins, 98 N.C. App. 299, 304, 390 S.E.2d 766, 769 (1990) (allegations of misconduct, \u201cabsent any allegations going to a nexus between such misconduct and this State, are simply insufficient to permit the reasonable inference that personal jurisdiction over defendant could properly be acquired\u201d). Thus, any information concerning the North Carolina beach vacation must be taken from the affidavits of defendant and Ms. Eluhu. Significantly, Ms. Eluhu attested that she \u201c[knew] of no change whatsoever in my relations with Plaintiff, or my relations with Defendant during, right after or because of the beach trip to North Carolina.\u201d\nThe evidence before the trial court, therefore, discloses little, if any at all, connection between defendant\u2019s contacts with North Carolina and plaintiffs cause of action. That defendant admitted to seeing Ms. Eluhu at Atlantic Beach does not permit a conclusion that he alienated her affection from plaintiff at that time. Moreover, nothing in plaintiffs verified complaint successfully contradicts Ms. Eluhu\u2019s statement that seeing defendant during the beach trip had no effect on her relationship with plaintiff. For our purposes, the statement renders this contact between defendant and North Carolina quite insignificant with respect to plaintiffs claim for alienation of affection. In addition, although North Carolina does have an interest in providing a forum for actions based on torts that occur in North Carolina, the evidence presented to the trial court showed that neither plaintiff nor defendant is a resident of North Carolina and that almost all of the contact between defendant and Ms. Eluhu occurred in Tennessee. Given that the tort of alienation of affection has been abolished in both California and Tennessee, see Dupuis v. Hand, 814 S.W.2d 340 (Tenn. 1991), Cal. Civ. Code \u00a7 43.5(a) (2003), but not North Carolina, and that it is a transitory tort, to which courts must apply the substantive law of the state in which the tort occurred, see Cooper v. Shealey, 140 N.C. App. 729, 537 S.E.2d 854 (2000), plaintiffs decision to sue defendant in North Carolina smacks of forum-shopping. See Dillon v. Numismatic Funding Corp., 291 N.C. 674, 231 S.E.2d 629 (1977). Lastly, defending against a suit in North Carolina would clearly be inconvenient for defendant, who resides in California, and plaintiff, as a resident of Tennessee, has no claim on the State of North Carolina to provide a forum for the settlement of his general disputes. Tom Togs, Inc. v. Ben Elias Industries Corp., 318 N.C. 361, 367, 348 S.E.2d 782, 787 (1986) (\u201cIt is generally conceded that a state has a \u2018manifest interest\u2019 in providing its residents with a convenient forum for redressing injuries inflicted by out-of-state actors.\u201d). Considering all of these factors, especially the weak connection between defendant\u2019s trip to Atlantic Beach and the instant cause of action, in light of \u201ctraditional notions of fair play and substantial justice,\u201d the trial court did not err in finding defendant\u2019s contacts with North Carolina were insufficient to subject him to specific in personam jurisdiction.\nIn terms of general jurisdiction, the record admittedly discloses continuous contacts between defendant and North Carolina during a period of several years prior to the filing of the complaint. From 1991 to 1997, defendant was a resident of this State. Although he moved to Tennessee in 1997 and lived and worked there until April 1999, his wife and son remained in Raleigh in a home the couple owned, and defendant admittedly traveled back to Raleigh during this period \u201coccasionally\u201d to visit his family. He took a three-day vacation in Atlantic Beach in May 1999. After his family relocated to California, he rented the Raleigh house from August 1999 to August 2000, and he sold it in March 2001. The complaint was filed in October 2001. Taken together, these contacts with North Carolina are more significant than those of the defendant in Fraser v. Littlejohn, 96 N.C. App. 377, 386 S.E.2d 230 (1989). In that case, this Court held that even though the defendant had not resided or worked in North Carolina after 1986, two years prior to the filing of the action in 1988, the substantial contacts he had with North Carolina from 1983 to 1986, along with related minor contacts through 1988, constituted continuous and systematic contacts for purposes of exercising general jurisdiction over him. Id. at 383-87, 386 S.E.2d at 234-37. See also Metropolitan Life Ins. Co. v. Robertson-CECO Corp., 84 F.3d 560, 569-70 (1996) (\u201cThe minimum contacts inquiry is fact-intensive, and the appropriate period for evaluating a defendant\u2019s contacts will vary in individual cases. In general jurisdiction cases, district courts should examine a defendant\u2019s contacts with the forum state over a period that is reasonable under the circumstances \u2014 up to and including the date the suit was filed \u2014 to assess whether they satisfy the \u2018continuous and systematic\u2019 standard.\u201d), cert. denied, 519 U.S. 1006, 136 L. Ed. 2d 398 (1996).\nHowever, a finding of continuous and systematic contacts does not automatically authorize the exercise of general personal jurisdiction over a defendant. See Fraser, 96 N.C. App. at 386-87, 386 S.E.2d at 236-37. The exercise of jurisdiction over a defendant may nonetheless violate due process based on inconvenience to the defendant and/or a lack of interest of the forum state in the litigation. Other than the recognition by North Carolina of the claim for alienation of affections, nothing in the record indicates a reason for North Carolina to have an interest in the litigation. While this Court expressed an interest on the part of North Carolina in protecting the institution of marriage in Cooper v. Shealy, 140 N.C. App. 729, 537 S.E.2d 854 (2000), that case involved a resident plaintiff whose marriage was allegedly destroyed by telephone calls and e-mails to her North Carolina resident spouse from the South Carolina defendant. In this case, neither plaintiff nor defendant is a resident of North Carolina; plaintiffs bare allegation concerning the commission of the alleged tort in this State was effectively refuted by the affidavits filed in support of defendant\u2019s motion to dismiss. Plaintiff neither alleged nor attested to the existence of witnesses or evidence within North Carolina necessary to his case. Byham v. National Cibo House Corp., 265 N.C. 50, 57, 143 S.E.2d 225, 231 (1965); Cooper, 140 N.C. App. at 736, 537 S.E.2d at 858. Without some showing of interest on the part of North Carolina in adjudicating this dispute, the inconvenience to defendant of defending the matter here is not mitigated. Subjecting defendant to suit in North Carolina under these circumstances would not comport with due process and thus the trial court did not err in refusing to exercise general in personam jurisdiction over defendant.\nThe trial court\u2019s order dismissing plaintiff\u2019s action against defendant for lack of personal jurisdiction is affirmed.\nAffirmed.\nJudge LEVINSON concurs.\nJudge TYSON dissents.", "type": "majority", "author": "MARTIN, Judge." }, { "text": "TYSON, Judge,\ndissenting.\nDefendant engaged in sufficient minimum contacts within the State of North Carolina to subject him to personal jurisdiction consistent with due process, and to enable plaintiff to survive defendant\u2019s motion to dismiss. I respectfully dissent.\nIn Cooper v. Shealy, 140 N.C. App. 729, 537 S.E.2d 854 (2000) our Court found jurisdiction based upon sufficient contacts that satisfied due process in an action for alienation of affections where an out-of-state defendant called and emailed plaintiff\u2019s husband in North Carolina. The out-of-state calls were solicitations within the statutory language of the long-arm statute. Cooper, 140 N.C. App. at 734, 537 S.E.2d at 857; N.C.G.S. \u00a7 1-75.4 (2001). This Court noted the minimal requirements established by the federal courts, and held these contacts were sufficient to satisfy due process. Id. at 734-35, 537 S.E.2d at 858 (citing Brown v. Flowers Industries, Inc., 688 F.2d 328 (5th Cir. 1982), cert. denied, 460 U.S. 1023, 75 L. Ed. 2d 496 (1983), and J.E.M. Corporation v. McClellan, 462 F. Supp. 1246 (D. Kan 1978) (exercising personal jurisdiction where defendant\u2019s only contact with the forum state was a single phone call from out-of-state)). See also, Haizlip v. MFI of South Carolina, Inc., 159 N.C. App.-,-S.E.2d -(2003) (finding sufficient minimum contacts where defendant\u2019s only contacts were phone calls and mailings to North Carolina).\nDefendant and the majority\u2019s opinion concedes jurisdiction under the long-arm statute, leaving the issue of minimum contacts for consideration. N.C.G.S. \u00a7 1-75.4. The due process test for minimum contacts requires inquiry into the five factors discussed in the majority\u2019s opinion. Bruggeman v. Meditrust Acquistion Co., 138 N.C. App. 612, 617, 532 S.E.2d 215, 219, disc. review denied and appeal dismissed, 353 N.C. 261, 546 S.E.2d 90-91 (2000) (citations omitted). The majority\u2019s opinion finds evidence to satisfy all requirements except for convenience to the parties and interest of the forum state.\nThe remaining factors of convenience and interest of the forum state have been termed the \u201cfairness\u201d factors and are viewed secondarily, after finding the existence .of sufficient minimum contacts. See Fraser v. Littlejohn, 96 N.C. App. 377, 387, 386 S.E.2d 230, 237 (1989). The majority\u2019s opinion concludes that the two \u201cfairness\u201d factors outweigh the others in order to affirm the trial court.\nI disagree. Although defendant now lives in California, and may be \u201cinconvenienced\u201d by this litigation, his substantial ongoing contacts and physical presence within North Carolina before, at, and after the time the cause of action arose mitigates against any inconvenience. \u201cThere is almost always some hardship to the party required to litigate away from home. But there is no constitutional requirement that this hardship must invariably be borne by the plaintiff whenever the defendant is a nonresident.\u201d Byham v. House Corp., 265 N.C. 50, 60, 143 S.E.2d 225, 234 (1965). Although not a \u201cresident\u201d when the complaint was filed, defendant purposefully availed himself of the privileges of residing, raising his family, renting his house, and vacationing in North Carolina. Defendant could fairly anticipate being subject to litigation as a result of those contacts. If this action arose out of an alleged civil assault or battery occurring in North Carolina, there would be little doubt that North Carolina had personal jurisdiction over defendant. Allowing plaintiff to bring his claim will not \u201coffend[] \u2018traditional notions of fair play and substantial justice.\u2019 \u201d International Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 102 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 85 L. Ed. 278, 283 (1940), reh\u2019g denied, 312 U.S. 712, 85 L. Ed. 1143 (1941)).\nAs for the interest of the forum state, this Court in Cooper reiterated.\nIt is important to note that plaintiff cannot bring the claims for alienation of affections and criminal conversation in . . . (defendant\u2019s resident state) since that state has abolished those causes of actions, (citation omitted) Therefore, North Carolina\u2019s interest in providing a forum for plaintiff\u2019s cause of action is especially great in light of the circumstances. Furthermore, North Carolina\u2019s legislature and courts have repeatedly demonstrated the importance of protecting marriage. N.C. Gen. Stat. \u00a7 8-57(c) (spouses may not be compelled to testify against each other if confidential information made by one to the other would be disclosed); Thompson v. Thompson, 70 N.C. App. 147, 319 S.E.2d 315 (1984), rev\u2019d on other grounds, 313 N.C. 313, 328 S.E.2d 288 (1985) (attorneys representing a client in a divorce proceeding may not use contingent fee contracts since they tend to promote divorce and discourage reconciliation); Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888 (1985) (the causes of action for alienation of affections and criminal conversation are still in existence).\nCooper, 140 N.C. App. at 735, 537 S.E.2d at 858.\nNorth Carolina has personal jurisdiction over the defendant due to his \u201ccontinuous and systematic\u201d quantity and quality of contacts with North Carolina. The quantity and nature of the contacts, North Carolina\u2019s interest in the litigation, and the relative inconvenience to the parties complies with due process in finding personal jurisdiction over the defendant. The nature of this tort and the perceived strength of plaintiff\u2019s claim should not be considerations in a motion to dismiss for lack of personal jurisdiction. The trial court\u2019s dismissal at this early stage of litigation is error. I respectfully dissent.", "type": "dissent", "author": "TYSON, Judge," } ], "attorneys": [ "Cheshire, Parker, Schneider, Bryan & Vitale, by Jonathan McGirt, for plaintiff-appellant.", "Manning, Fulton & Skinner, P.A., by Cary E. Close, for defendant-appellee." ], "corrections": "", "head_matter": "MARCEL ELUHU, Plaintiff v. VLADIMIR ROSENHAUS, Defendant\nNo. COA02-1167\n(Filed 5 August 2003)\nJurisdiction\u2014 personal \u2014 alienation of affections\nThe trial court did not err by dismissing plaintiff\u2019s alienation of affections action against defendant based on lack of personal jurisdiction, because: (1) the evidence before the trial court disclosed little, if any, connection between defendant\u2019s contacts with North Carolina and plaintiff\u2019s cause of action; (2) neither plaintiff nor defendant is a resident of North Carolina and almost all of the contact between defendant and plaintiffs wife occurred in Tennessee; (3) plaintiff\u2019s bare allegation concerning the commission of the alleged tort in this State was effectively refuted by the affidavits filed in support of defendant\u2019s motion to dismiss; and (4) without some showing of interest on the part of North Carolina in adjudicating this dispute, the inconvenience to defendant of defending the matter is not mitigated.\nJudge Tyson dissenting.\nAppeal by plaintiff from order entered 25 March 2002 by Judge Robert H. Hobgood in Wake County Superior Court. Heard in the Court of Appeals 11 June 2003.\nCheshire, Parker, Schneider, Bryan & Vitale, by Jonathan McGirt, for plaintiff-appellant.\nManning, Fulton & Skinner, P.A., by Cary E. Close, for defendant-appellee." }, "file_name": "0355-01", "first_page_order": 385, "last_page_order": 394 }