{ "id": 8375832, "name": "CHARLES BAKER, Plaintiff-appellee v. LANIER MARINE LIQUIDATORS, INC., Defendant-appellant", "name_abbreviation": "Baker v. Lanier Marine Liquidators, Inc.", "decision_date": "2007-12-18", "docket_number": "No. COA07-152", "first_page": "711", "last_page": "718", "citations": [ { "type": "official", "cite": "187 N.C. App. 711" } ], "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": "315 S.E.2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "99" } ], "opinion_index": 0 }, { "cite": "68 N.C. App. 494", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527501 ], "year": 1984, "pin_cites": [ { "page": "495" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0494-01" ] }, { "cite": "317 S.E.2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "98", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 483", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526484 ], "year": 1984, "pin_cites": [ { "page": "485", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0483-01" ] }, { "cite": "251 S.E.2d 640", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "parenthetical": "holding defendants, Georgia residents, satisfied all the requirements of due process and were subject to personal jurisdiction in North Carolina" }, { "page": "641", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "39 N.C. App. 617", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553864 ], "weight": 2, "year": 1979, "pin_cites": [ { "parenthetical": "holding defendants, Georgia residents, satisfied all the requirements of due process and were subject to personal jurisdiction in North Carolina" }, { "page": "618" } ], "opinion_index": 0, "case_paths": [ "/nc-app/39/0617-01" ] }, { "cite": "394 S.E.2d 651", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "657" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 626", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524368 ], "year": 1990, "pin_cites": [ { "page": "635" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0626-01" ] }, { "cite": "348 S.E.2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1986, "pin_cites": [ { "page": "786", "parenthetical": "emphasis in original" }, { "page": "787", "parenthetical": "citation omitted" }, { "page": "787", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "318 N.C. 361", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4734507 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "367", "parenthetical": "emphasis in original" }, { "page": "367" }, { "page": "368" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0361-01" ] }, { "cite": "350 S.E.2d 111", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "114" } ], "opinion_index": 0 }, { "cite": "83 N.C. App. 281", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358429 ], "year": 1986, "pin_cites": [ { "page": "284" } ], "opinion_index": 0, "case_paths": [ "/nc-app/83/0281-01" ] }, { "cite": "326 U.S. 310", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6157001 ], "weight": 3, "year": 1945, "pin_cites": [ { "page": "316", "parenthetical": "internal quotation marks omitted" }, { "page": "102", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/us/326/0310-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-75.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2005, "pin_cites": [ { "page": "(5)" } ], "opinion_index": 0 }, { "cite": "600 S.E.2d 881", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 2004, "pin_cites": [ { "page": "884", "parenthetical": "internal quotation omitted" }, { "page": "885" }, { "page": "885" }, { "page": "885" }, { "page": "885-86", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "166 N.C. App. 34", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8410703 ], "weight": 5, "year": 2004, "pin_cites": [ { "page": "37", "parenthetical": "internal quotation omitted" }, { "page": "37" }, { "page": "37" }, { "page": "38" }, { "page": "38-39" } ], "opinion_index": 0, "case_paths": [ "/nc-app/166/0034-01" ] }, { "cite": "324 S.E.2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "912", "parenthetical": "citation omitted" }, { "page": "913" } ], "opinion_index": 1 }, { "cite": "72 N.C. App. 419", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526868 ], "year": 1985, "pin_cites": [ { "page": "424", "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/nc-app/72/0419-01" ] } ], "analysis": { "cardinality": 729, "char_count": 17169, "ocr_confidence": 0.74, "pagerank": { "raw": 7.300207300906587e-08, "percentile": 0.43407067361842333 }, "sha256": "e0bec9cb6c9a5d6495fc4ae781a0779f8ffeaf49c138a6f74fb60c63010d62fd", "simhash": "1:0b6345e405cfb472", "word_count": 2737 }, "last_updated": "2023-07-14T22:19:56.575920+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge STEPHENS concurs.", "Judge STEELMAN concurs with a separate opinion." ], "parties": [ "CHARLES BAKER, Plaintiff-appellee v. LANIER MARINE LIQUIDATORS, INC., Defendant-appellant" ], "opinions": [ { "text": "CALABRIA, Judge.\nLanier Marine Liquidators, Inc. (\u201cdefendant\u201d) appeals from an order of the Carteret County Superior Court. We affirm the trial court\u2019s denial of defendant\u2019s motion to dismiss for lack of personal jurisdiction, and we dismiss, as interlocutory, the trial court\u2019s denial of the motion to dismiss for failure to state a claim upon which relief can be granted.\nDefendant is a Georgia merchant in the business of selling boats and marine vessels. In 2004, Charles Baker (\u201cplaintiff\u2019) sought to purchase a boat and was referred to defendant by a North Carolina firm. In the summer of 2004, plaintiff contacted defendant and spoke with defendant\u2019s agent, Shane Vaughn, (\u201cVaughn\u201d) concerning the type of boat plaintiff wished to purchase. During the initial phone conversation, Vaughn told plaintiff he currently did not have a boat in his inventory that met with plaintiff\u2019s specifications. Vaughn said he would begin searching for one matching plaintiff\u2019s requirements. In the Fall of 2004, Vaughn contacted plaintiff in North Carolina and told plaintiff he had a \u201cgreat boat\u201d and that plaintiff could view the boat on defendant\u2019s website.\nAfter plaintiff viewed the boat on defendant\u2019s website, he offered to purchase the boat at its listed price in the amount of $9,900, and defendant accepted his offer. On 9 December 2004, plaintiff used his debit card and placed a $100 deposit with defendant.- On 14 January 2005, plaintiff wired $9,812, the remaining amount of the purchase price (including a $12 wire transfer fee), to defendant\u2019s bank in Georgia. After completing the financial arrangements, defendant arranged for an independent contractor, Richard Pursley, to ship the boat to plaintiff. When the boat was delivered in North Carolina, the boat\u2019s interior was in very poor condition. In addition, plaintiff was not presented with any sales documentation or the boat\u2019s title. On the same day the boat was delivered, plaintiff placed the boat in the water, and the boat sank. Plaintiff telephoned Vaughn, spoke with him briefly, and was promised a return phone call. Neither Vaughn nor any of defendant\u2019s other employees contacted plaintiff.\nOn 1 August 2005, plaintiff filed a complaint in Carteret County Superior Court against defendant seeking to recover damages for breach of an express warranty, breach of an implied warranty of merchantability, breach of warranty of fitness for a particular purpose, fraud, in the alternative to fraud negligent misrepresentation, and unfair and deceptive trade practices. Defendant filed motions to dismiss for lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to state a claim upon which relief can be granted. The trial court denied all three motions. From the denial of these motions, defendant appeals.\nAs a preliminary matter, we first address defendant\u2019s contention that the trial court made no findings of fact, but concluded as a matter of law that the court has personal jurisdiction over defendant. Rule 52(a)(2) of the North Carolina Rules of Civil Procedure provides that \u201c[findings of fact and conclusions of law are necessary on decisions of any motion or order ex mero motu only when requested by a party and as provided by Rule 41(b).\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 52(a)(2) (2005).\nHere, there is no indication in the record that either party requested findings by the trial judge. Therefore, it was proper that the trial court made no findings of fact when issuing the order denying defendant\u2019s motion to dismiss.\nDefendant next argues the trial court erred in denying its motion to dismiss for lack of personal jurisdiction! Specifically, defendant argues there are insufficient minimum contacts with North Carolina for our courts to exercise statutory jurisdiction, nor are there sufficient minimum contacts necessary to satisfy the due process of law requirements to subject defendant to the personal jurisdiction of North Carolina\u2019s courts. We disagree.\n\u201cThe standard of review of an order determining 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 Tejal Vyas, LLC v. Carriage Park Ltd. P\u2019ship, 166 N.C. App. 34, 37, 600 S.E.2d 881, 884 (2004) (internal quotation omitted). North Carolina courts utilize a two-prong analysis in determining whether personal jurisdiction against a non-resident is properly asserted. Id. Under the first prong of the analysis, we determine if statutory authority for jurisdiction exists under our long-arm statute. Id., 166 N.C. App. at 37, 600 S.E.2d at 885; See also N.C. Gen. Stat. \u00a7 1-75.4 (2005). If statutory authority exists, we consider under the second prong whether exercise of our jurisdiction comports with standards of due process. Tejal Vyas, 166 N.C. App. at 37, 600 S.E.2d at 885.\nA. North Carolina\u2019s statutory long-arm statute\nPursuant to North Carolina\u2019s long-arm statute, personal jurisdiction is proper here under two provisions:\n(5) Local Services, Goods or Contracts.-In any action which:\n(c) Arises out of a promise, made anywhere to the plaintiff or to some third party for the plaintiff\u2019s benefit, by the defendant to deliver or receive within this State, or to ship from this State goods, documents of title, or other things of value; or\n(d) Relates to goods, documents of title, or other things of value shipped from this State by the plaintiff to the defendant on his order or direction^]\nN.C. Gen. Stat. \u00a7 1-75.4(5) (2005).\nDefendant personally coordinated the delivery of the boat to plaintiff, located in North Carolina, through an independent third party. Moreover, the $9,812 wire transfer sent from plaintiff in North Carolina to defendant, in Georgia, for payment of the boat constitutes a \u201cthing[] of value\u201d shipped from this State by plaintiff to defendant on defendant\u2019s order or direction pursuant to N.C. Gen. Stat. \u00a7 l-75.4(5)(d). See Tejal Vyas, 166 N.C. App. at 38, 600 S.E.2d at 885. Therefore, the defendant is subject to jurisdiction under North Carolina\u2019s long-arm statute.\nB. Due Process\n\u201cSince at least one requirement under North Carolina\u2019s long-arm statute allows plaintiffs to assert jurisdiction over defendants, the inquiry becomes whether plaintiffs\u2019 assertion of jurisdiction over defendants complies with due process.\u201d Id. \u201cIn determining whether the exercise of personal jurisdiction comports with due process, the crucial inquiry is whether the defendant has \u2018certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.\u2019 \u201d Id. (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 102 (1945) (internal quotation marks omitted) (citation omitted)). In order to have minimum contacts:\nthe defendant must have purposefully availed itself of the privilege of conducting activities within the forum state and invoked the benefits and protections of the laws of North Carolina. The relationship between the defendant and the forum state must be such that the defendant should reasonably anticipate being haled into a North Carolina court.\nId., 166 N.C. App. at 38-39, 600 S.E.2d at 885-86 (citations omitted) (quotation marks omitted).\nThis Court in Cameron-Brown Co. v. Daves, 83 N.C. App. 281, 284, 350 S.E.2d 111, 114 (1986), discussed five factors to be considered to determine whether the defendant has had sufficient minimum contacts with the forum state. The factors are: \u201c(1) quantity of the contacts between the defendant and the forum state, (2) quality and nature 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 of the parties.\u201d Id.\nAlthough a contractual relationship between a North Carolina resident and an out-of-state party alone does not automatically establish the necessary minimum contacts with this State, nevertheless, a single contract may be a sufficient basis for the exercise of in -personam jurisdiction if it has a substantial connection with this State.\nTom Togs, Inc. v. Ben Elias Industries Corp., 318 N.C. 361, 367, 348 S.E.2d 782, 786 (1986) (emphasis in original).\nWe now apply the five factors to the instant case and determine whether defendant has sufficient minimum contacts with North Carolina such that this State\u2019s exercise of jurisdiction over defendant complies with due process. Plaintiff initiated contact with defendant about purchasing a boat. Defendant told plaintiff that currently defendant did not have a boat meeting plaintiffs specifications. However, a few months after that initial conversation, defendant specifically called plaintiff in North Carolina to inform plaintiff a boat was available that plaintiff might wish to purchase. Defendant accepted plaintiff\u2019s wire transfer of funds in the amount of $9,812 that plaintiff wired to defendant from a North Carolina bank. Furthermore, when defendant telephoned plaintiff, defendant told plaintiff he could look at the boat on defendant\u2019s website. Defendant also made shipping arrangements with a third party to ship the boat to North Carolina.\nPlaintiff is an individual consumer who sought to purchase the boat for his own use as a primary residence on the water. Defendant\u2019s employees did not return plaintiff\u2019s phone calls after plaintiff\u2019s boat sank. As a result of plaintiff\u2019s unreturned phone calls, plaintiff brought suit against defendant for breach of warranty, fraud, and unfair and deceptive trade practices. \u201cIt 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.\u201d Id., 318 N.C. at 367, 348 S.E.2d at 787 (citation omitted) (quotation marks omitted). Thus, North Carolina has a \u201cmanifest interest\u201d in providing the plaintiff \u201ca convenient forum for redressing injuries inflicted by\u201d defendant, an out-of-state merchant. As to the fifth factor, the convenience of the parties, we note that Georgia is located in the same region as North Carolina; therefore, defendant would not have suffered a great burden in traveling from Georgia to North Carolina to appear in the lawsuit. Moreover, there is no evidence in the record to suggest that it is more convenient for the parties to try this matter in Georgia than in North Carolina. See Cherry Bekaert & Holland v. Brown, 99 N.C. App. 626, 635, 394 S.E.2d 651, 657 (1990) (\u201cLitigation on interstate business transactions inevitably involves inconvenience to one of the parties. When [t]he inconvenience to defendant of litigating in North Carolina is no greater than would be the inconvenience of plaintiff of litigating in [defendant\u2019s state]... no convenience factors ... are determinative[.]\u201d (citations and quotation marks omitted); Hankins v. Somers, 39 N.C. App. 617, 251 S.E.2d 640 (1979) (holding defendants, Georgia residents, satisfied all the requirements of due process and were subject to personal jurisdiction in North Carolina).\nDefendant contests personal jurisdiction in North Carolina because there is no evidence its business activities are conducted in North Carolina. However, our Supreme Court has held, \u201c[l]ack of action by defendant in a jurisdiction is not now fatal to the exercise of long-arm jurisdiction.\u201d Tom Togs, Inc., 318 N.C. at 368, 348 S.E.2d at 787 (citations omitted).\nTherefore, after examining the relationship among the parties, the nature of their communications, the interest of the forum state, the convenience of the parties, and the cause of action, we conclude defendant has \u201cpurposely availed\u201d itself to do business in North Carolina and \u201cshould reasonably anticipate being haled into a North Carolina court.\u201d Thus, we find sufficient minimum contacts to justify the exercise of personal jurisdiction over defendant without violating the due process clause.\nDefendant next argues that the trial court erred in denying its 12(b)(6) motion because Georgia law and not North Carolina law should apply to this case. We disagree.\n\u201cAs a general rule, a party may properly appeal only from a final order, which disposes of all the issues as to all parties, or an interlocutory order affecting a substantial right of the appellant.\u201d Buffington v. Buffington, 69 N.C. App. 483, 485, 317 S.E.2d 97, 98 (1984) (citation omitted). \u201cDenial of a motion to dismiss is interlocutory because it simply allows an action to proceed and will not seriously impair any right of defendants that cannot be corrected upon appeal from final judgment.\u201d Howard v. Ocean Trail Convalescent Center, 68 N.C. App. 494, 495, 315 S.E.2d 97, 99 (1984). \u201cDenial of a motion to dismiss for failure to state a claim upon which relief can be granted is not a final determination within the meaning of G.S. l-277(a), does not affect a substantial right, and is not appealable.\u201d Hankins v. Somers, 39 N.C. App. at 618, 251 S.E.2d at 641 (citation omitted).\nIn the case sub judice, because defendant assigns as error the court\u2019s denial of its motion to dismiss pursuant to Rule 12(b)(6), this assignment of error is premature, and therefore not appealable. Since defendant has not argued its remaining assignments of error, they are deemed abandoned pursuant to N.C.R. App. R 28(b)(6) (2005).\nAffirmed in part; dismissed in part.\nJudge STEPHENS concurs.\nJudge STEELMAN concurs with a separate opinion.", "type": "majority", "author": "CALABRIA, Judge." }, { "text": "STEELMAN, Judge\nconcurring in the result.\nI fully concur in the result reached by the majority in this case, and particularly with the holding that under N.C.R. Civ. P. 52(a)(2) the court was not required to make findings of fact in the absence of a request by the parties. In such a case, \u201cit will be presumed that the judge, upon proper evidence, found facts sufficient to support the judgment.\u201d J.M. Thompson Co. v. Doral Mfg. Co., 72 N.C. App. 419, 424, 324 S.E.2d 909, 912 (1985) (citation omitted). Our analysis is limited to whether the presumed findings of fact are supported by competent evidence, and if so, they are conclusive on appeal despite evidence to the contrary. Id. at 424, 324 S.E.2d at 913; see also 2 G. Gray Wilson, North Carolina Civil Procedure \u00a7 52-4, at 200-201 (2d ed. 1995). In the instant case, there is evidence in the record to support the presumed findings of fact by the court, and its denial of defendant\u2019s motion to dismiss for lack of personal jurisdiction should be affirmed.", "type": "concurrence", "author": "STEELMAN, Judge" } ], "attorneys": [ "Harvell & Collins, P.A., by Wesley A. Collins and Amy C. Shea, for plaintiff-appellee.", "Wheatly, Wheatly, Weeks, Valentine & Lupton, P.A., by Stevenson L. Weeks, for defendant-appellant." ], "corrections": "", "head_matter": "CHARLES BAKER, Plaintiff-appellee v. LANIER MARINE LIQUIDATORS, INC., Defendant-appellant\nNo. COA07-152\n(Filed 18 December 2007)\n1. Jurisdiction\u2014 personal \u2014 findings of fact not requested\u2014 minimum contacts \u2014 long-arm statute \u2014 due process\nThe trial court did not err in a breach of express warranty, breach of implied warrant of merchantability, breach of warranty of fitness for a particular purpose, fraud or in the alternative negligent misrepresentation, and unfair and deceptive trade practices case arising out of the sale of a boat by denying defendant\u2019s motion to dismiss based on lack of personal jurisdiction, because: (1) although defendant contends the trial court failed to make any findings of fact, there was no indication in the record that either party requested findings by the trial court as required by N.C.G.S. \u00a7 1A-1, Rule 52(a)(2); (2) defendant was subject to jurisdiction under North Carolina\u2019s long-arm statute, N.C.G.S. \u00a7 1-75.4(5), since defendant personally coordinated the delivery of the boat to plaintiff located in North Carolina through an independent third-party, and the $9,812 wire transfer sent from plaintiff in North Carolina to defendant in Georgia for payment of the boat constituted a thing of value shipped from this state by plaintiff to defendant on defendant\u2019s order or direction; and (3) the exercise of personal jurisdiction comported with due process based on sufficient minimum contacts with the forum state including the relationship among the parties, the nature of their communications, the interest of the forum state, the convenience of the parties, and the cause of action such that defendant purposefully availed itself to do business in North Carolina.\n2. Appeal and Error\u2014 appealability \u2014 denial of motion to dismiss \u2014 failure to state claim\nAlthough defendant contends the trial court erred by denying his N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) motion to dismiss even though defendant contends Georgia law and not North Carolina law should apply to this case, this assignment of error is dismissed as an appeal from an interlocutory order, because the denial of a motion to dismiss for failure to state a claim upon which relief can be granted is not a final determination within the meaning of N.C.G.S. \u00a7 l-277(a), does not affect a substantial right, and is not appealable.\nJudge STEELMAN concurring in the result.\nAppeal by defendant from order entered 25 August 2006 by Judge John E. Nobles in Carteret County Superior Court. Heard in the Court of Appeals 12 September 2007.\nHarvell & Collins, P.A., by Wesley A. Collins and Amy C. Shea, for plaintiff-appellee.\nWheatly, Wheatly, Weeks, Valentine & Lupton, P.A., by Stevenson L. Weeks, for defendant-appellant." }, "file_name": "0711-01", "first_page_order": 741, "last_page_order": 748 }