{ "id": 4157183, "name": "SAFT AMERICA, INC., Plaintiff v. PLAINVIEW BATTERIES, INC., ENERGEX BATTERIES, INC., BERNIE R. ERDE, and RUSSELL J. BLEEKER, Defendants", "name_abbreviation": "Saft America, Inc. v. Plainview Batteries, Inc.", "decision_date": "2008-04-15", "docket_number": "No. COA07-823", "first_page": "579", "last_page": "600", "citations": [ { "type": "official", "cite": "189 N.C. App. 579" } ], "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": "625 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634964 ], "year": 2006, "pin_cites": [ { "page": "198" } ], "opinion_index": 0, "case_paths": [ "/se2d/625/0191-01" ] }, { "cite": "646 S.E.2d 790", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638886 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "797", "parenthetical": "citing Glenn, 313 N.C. at 455, 329 S.E.2d at 330-31" }, { "page": "793" }, { "page": "797" } ], "opinion_index": 0, "case_paths": [ "/se2d/646/0790-01" ] }, { "cite": "625 S.E.2d 800", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635081 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "803" }, { "page": "804", "parenthetical": "emphasis omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/625/0800-01" ] }, { "cite": "632 S.E.2d 211", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636289 ], "weight": 3, "year": 2006, "pin_cites": [ { "page": "217-18" }, { "page": "217-18" }, { "page": "217" } ], "opinion_index": 0, "case_paths": [ "/se2d/632/0211-01" ] }, { "cite": "635 S.E.2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636736 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "615", "parenthetical": "citing Godwin v. 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App.", "case_ids": [ 8524056 ], "year": 1988, "pin_cites": [ { "page": "289", "parenthetical": "stating trial courts may not consider legal conclusions stated in an affidavit" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0286-01" ] }, { "cite": "596 S.E.2d 344", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "348-49" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 615", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8899642 ], "year": 2004, "pin_cites": [ { "page": "622" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0615-01" ] }, { "cite": "175 N.C. App. 628", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352903 ], "year": 2006, "pin_cites": [ { "page": "636" } ], "opinion_index": 0, "case_paths": [ "/nc-app/175/0628-01" ] }, { "cite": "306 S.E.2d 562", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "565" } ], "opinion_index": 0 }, { "cite": "64 N.C. App. 41", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526132 ], "year": 1983, "pin_cites": [ { "page": "45" } ], "opinion_index": 0, "case_paths": [ "/nc-app/64/0041-01" ] }, { "cite": "506 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "758", "parenthetical": "citation and quotation omitted" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 231", "category": "reporters:state", "reporter": "N.C. 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App. 787", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9131964 ], "year": 2002, "pin_cites": [ { "page": "790" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0787-01" ] }, { "cite": "176 N.C. App. 247", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8300987 ], "year": 2006, "pin_cites": [ { "page": "252" } ], "opinion_index": 0, "case_paths": [ "/nc-app/176/0247-01" ] }, { "cite": "178 N.C. App. 510", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8378561 ], "year": 2006, "pin_cites": [ { "page": "518-19" } ], "opinion_index": 0, "case_paths": [ "/nc-app/178/0510-01" ] }, { "cite": "458 S.E.2d 15", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "19" }, { "page": "18" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 210", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914175 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "214" }, { "page": "213" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0210-01" ] }, { "cite": "462 S.E.2d 832", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "834" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 498", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916410 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "501" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0498-01" ] }, { "cite": "642 S.E.2d 448", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2007, "pin_cites": [ { "parenthetical": "emphasis supplied" } ], "opinion_index": 0 }, { "cite": "361 N.C. 221", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3736513, 3737667, 3737765, 3746280, 3739273, 3736305, 3743861, 3735551 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0221-03", "/nc/361/0221-05", "/nc/361/0221-06", "/nc/361/0221-08", "/nc/361/0221-04", "/nc/361/0221-07", "/nc/361/0221-02", "/nc/361/0221-01" ] }, { "cite": "455 S.E.2d 473", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "479" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 341", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918298 ], "year": 1995, "pin_cites": [ { "page": "348" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0341-01" ] }, { "cite": "179 N.C. App. 764", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8239423 ], "year": 2006, "pin_cites": [ { "page": "771", "parenthetical": "citing Godwin v. Walls, 118 N.C. App. 341, 348, 455 S.E.2d 473, 479 (1995)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/179/0764-01" ] }, { "cite": "176 N.C. App. 554", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301304 ], "year": 2006, "pin_cites": [ { "page": "560", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/176/0554-01" ] }, { "cite": "608 S.E.2d 751", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "opinion_index": 0 }, { "cite": "359 N.C. 315", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3796481 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0315-01" ] }, { "cite": "600 S.E.2d 881", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "885-86", "parenthetical": "internal citations and quotations omitted" } ], "opinion_index": 0 }, { "cite": "166 N.C. App. 34", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8410703 ], "year": 2004, "pin_cites": [ { "page": "38-39", "parenthetical": "internal citations and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/166/0034-01" ] }, { "cite": "251 S.E.2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1979, "pin_cites": [ { "page": "614" }, { "page": "614" }, { "page": "614" } ], "opinion_index": 0 }, { "cite": "296 N.C. 510", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567856 ], "weight": 4, "year": 1979, "pin_cites": [ { "page": "515" }, { "page": "516" }, { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0510-01" ] }, { "cite": "326 U.S. 310", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6157001 ], "weight": 3, "year": 1945, "opinion_index": 0, "case_paths": [ "/us/326/0310-01" ] }, { "cite": "278 S.E.2d 501", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "505-06", "parenthetical": "citation and quotation omitted" } ], "opinion_index": 0 }, { "cite": "303 N.C. 256", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572768 ], "year": 1981, "pin_cites": [ { "page": "264", "parenthetical": "citation and quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0256-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-75.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "231 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "630" } ], "opinion_index": 0 }, { "cite": "291 N.C. 674", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558922 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "675" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0674-01" ] }, { "cite": "264 S.E.2d 753", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "755", "parenthetical": "citing Dillon v. Funding Corp., 291 N.C. 674, 231 S.E.2d 629 (1977)" } ], "opinion_index": 0 }, { "cite": "46 N.C. App. 235", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549959 ], "year": 1980, "pin_cites": [ { "page": "239-40", "parenthetical": "citing Dillon v. Funding Corp., 291 N.C. 674, 231 S.E.2d 629 (1977)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/46/0235-01" ] }, { "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": 3, "pin_cites": [ { "page": "217-18" }, { "page": "217", "parenthetical": "internal citations omitted" }, { "page": "217-18" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 612", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11080985 ], "weight": 2, "pin_cites": [ { "page": "615" }, { "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", "parenthetical": "citations omitted" } ], "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", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0139-01" ] }, { "cite": "637 S.E.2d 180", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637184, 12637182, 12637183 ], "year": 2006, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 1, "case_paths": [ "/se2d/637/0180-03", "/se2d/637/0180-01", "/se2d/637/0180-02" ] }, { "cite": "632 S.E.2d 551", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636327 ], "year": 2006, "pin_cites": [ { "page": "557", "parenthetical": "citations omitted" } ], "opinion_index": 1, "case_paths": [ "/se2d/632/0551-01" ] }, { "cite": "652 S.E.2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639703 ], "year": 2007, "pin_cites": [ { "page": "394", "parenthetical": "quoting Calder, 465 U.S. at 790, 79 L. 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App. 341, 348, 455 S.E.2d 473, 479 (1995)" }, { "page": "615-16" } ], "opinion_index": 1, "case_paths": [ "/se2d/635/0610-01" ] }, { "cite": "208 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "680" } ], "opinion_index": 1 }, { "cite": "285 N.C. 700", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569715 ], "year": 1974, "pin_cites": [ { "page": "707" } ], "opinion_index": 1, "case_paths": [ "/nc/285/0700-01" ] }, { "cite": "350 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1986, "pin_cites": [ { "page": "167" }, { "page": "166" } ], "opinion_index": 1 }, { "cite": "83 N.C. App. 377", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358614 ], "year": 1986, "opinion_index": 1, "case_paths": [ "/nc-app/83/0377-01" ] }, { "cite": "431 S.E.2d 178", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "180" } ], "opinion_index": 1 }, { "cite": "334 N.C. 115", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529622 ], "year": 1993, "pin_cites": [ { "page": "118" } ], "opinion_index": 1, "case_paths": [ "/nc/334/0115-01" ] }, { "cite": "327 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 1 }, { "cite": "313 N.C. 324", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724761 ], "year": 1985, "opinion_index": 1, "case_paths": [ "/nc/313/0324-01" ] }, { "cite": "415 S.E.2d 102", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "104", "parenthetical": "quoting Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888 (1985), overturned on other grounds by Dunn v. Pate, 334 N.C. 115, 118, 431 S.E.2d 178, 180 (1993)" } ], "opinion_index": 1 }, { "cite": "106 N.C. App. 56", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313678 ], "year": 1992, "pin_cites": [ { "page": "60", "parenthetical": "quoting Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888 (1985), overturned on other grounds by Dunn v. Pate, 334 N.C. 115, 118, 431 S.E.2d 178, 180 (1993)" } ], "opinion_index": 1, "case_paths": [ "/nc-app/106/0056-01" ] }, { "cite": "360 N.C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787328, 3797632, 3791939, 3788678, 3796552, 3797070, 3795089, 3789426, 3798133 ], "year": 2006, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 1, "case_paths": [ "/nc/360/0651-09", "/nc/360/0651-08", "/nc/360/0651-05", "/nc/360/0651-07", "/nc/360/0651-06", "/nc/360/0651-04", "/nc/360/0651-03", "/nc/360/0651-01", "/nc/360/0651-02" ] }, { "cite": "178 N.C. App. 689", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8379695 ], "year": 2006, "pin_cites": [ { "page": "697", "parenthetical": "citations omitted" } ], "opinion_index": 1, "case_paths": [ "/nc-app/178/0689-01" ] }, { "cite": "186 N.C. App. 631", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8159337 ], "year": 2007, "pin_cites": [ { "page": "638", "parenthetical": "quoting Calder, 465 U.S. at 790, 79 L. Ed. 2d at 813" } ], "opinion_index": 1, "case_paths": [ "/nc-app/186/0631-01" ] }, { "cite": "465 U.S. 783", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11337451 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "790" }, { "page": "813" } ], "opinion_index": 1, "case_paths": [ "/us/465/0783-01" ] }, { "cite": "357 U.S. 235", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6162253 ], "weight": 2, "year": 1958, "pin_cites": [ { "page": "253" }, { "page": "1298" } ], "opinion_index": 1, "case_paths": [ "/us/357/0235-01" ] }, { "cite": "585 S.E.2d 491", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "opinion_index": 1 }, { "cite": "160 N.C. App. 366", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8956007 ], "year": 2003, "opinion_index": 1, "case_paths": [ "/nc-app/160/0366-01" ] }, { "cite": "348 S.E.2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "786" } ], "opinion_index": 1 }, { "cite": "318 N.C. 361", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4734507 ], "year": 1986, "pin_cites": [ { "page": "365" } ], "opinion_index": 1, "case_paths": [ "/nc/318/0361-01" ] }, { "cite": "178 N.C. App. 510", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8378561 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "518" } ], "opinion_index": 1, "case_paths": [ "/nc-app/178/0510-01" ] }, { "cite": "458 S.E.2d 15", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "18" }, { "page": "18" } ], "opinion_index": 1 }, { "cite": "119 N.C. App. 210", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914175 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "213" }, { "page": "214" } ], "opinion_index": 1, "case_paths": [ "/nc-app/119/0210-01" ] }, { "cite": "462 S.E.2d 832", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "833-34", "parenthetical": "quoting Tom Togs, Inc. v. Ben Elias Industries Corp., 318 N.C. 361, 365, 348 S.E.2d 782, 786 (1986)" } ], "opinion_index": 1 }, { "cite": "120 N.C. App. 498", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916410 ], "year": 1995, "pin_cites": [ { "page": "500", "parenthetical": "quoting Tom Togs, Inc. v. Ben Elias Industries Corp., 318 N.C. 361, 365, 348 S.E.2d 782, 786 (1986)" } ], "opinion_index": 1, "case_paths": [ "/nc-app/120/0498-01" ] }, { "cite": "642 S.E.2d 448", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2007, "opinion_index": 1 }, { "cite": "361 N.C. 221", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3736513, 3737667, 3737765, 3746280, 3739273, 3736305, 3743861, 3735551 ], "year": 2007, "opinion_index": 1, "case_paths": [ "/nc/361/0221-03", "/nc/361/0221-05", "/nc/361/0221-06", "/nc/361/0221-08", "/nc/361/0221-04", "/nc/361/0221-07", "/nc/361/0221-02", "/nc/361/0221-01" ] }, { "cite": "455 S.E.2d 473", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "479" }, { "page": "479", "parenthetical": "citations omitted" } ], "opinion_index": 1 }, { "cite": "118 N.C. App. 341", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918298 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "348" }, { "page": "348" } ], "opinion_index": 1, "case_paths": [ "/nc-app/118/0341-01" ] }, { "cite": "179 N.C. App. 764", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8239423 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "771", "parenthetical": "citing Godwin v. Walls, 118 N.C. App. 341, 348, 455 S.E.2d 473, 479 (1995)" }, { "page": "771" } ], "opinion_index": 1, "case_paths": [ "/nc-app/179/0764-01" ] }, { "cite": "251 S.E.2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1979, "pin_cites": [ { "page": "614" }, { "page": "614" } ], "opinion_index": 1 }, { "cite": "296 N.C. 510", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567856 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "515" }, { "page": "515" } ], "opinion_index": 1, "case_paths": [ "/nc/296/0510-01" ] } ], "analysis": { "cardinality": 1508, "char_count": 49291, "ocr_confidence": 0.745, "pagerank": { "raw": 4.719567370958748e-08, "percentile": 0.29634082913714277 }, "sha256": "819e0b3684be540432ad55ea71ad59087ffdff5d63b729d784d7b21a2c635c29", "simhash": "1:5f095ca8c4c7285e", "word_count": 7666 }, "last_updated": "2023-07-14T16:47:52.494477+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge JACKSON concurs.", "Judge ARROWOOD dissents by separate opinion." ], "parties": [ "SAFT AMERICA, INC., Plaintiff v. PLAINVIEW BATTERIES, INC., ENERGEX BATTERIES, INC., BERNIE R. ERDE, and RUSSELL J. BLEEKER, Defendants" ], "opinions": [ { "text": "TYSON, Judge.\nEnergex Batteries, Inc., and Bernie R. Erde (collectively, \u201cdefendants\u201d) appeal from order entered denying their motions to dismiss for lack of personal jurisdiction. We affirm in part, reverse in part, and remand.'\nI.Background\nSaft America Inc. (\u201cplaintiff\u2019), is a corporation engaged in the manufacture of batteries and other energy storage cells. Plaintiff conducts its business in Burke County, North Carolina. Plainview Batteries, Inc. (\u201cPlainview\u201d), and Energex Batteries, Inc. (\u201cEnergex\u201d), are also involved in the battery and energy storage business. Plainview and Energex are corporations organized under the laws of the state of New York. Bernie R. Erde (\u201cErde\u201d) served as President and CEO of Plainview and Vice President of Energex. Erde owns forty-nine (49%) percent of Plainview\u2019s stock and fifty-one percent (51%) of Energex\u2019s stock. Russell Bleeker (\u201cBleeker\u201d) served as a corporate officer for both Plainview and Energex. In addition to overlapping management and ownership, Plainview and Energex share a common mailing address in Plainview, New York.\nBeginning in the 1990s, plaintiff established a business relationship with Plainview in which plaintiff sold Plainview several million dollars worth of goods. Until 2005, plaintiff dealt with Erde as Plainview\u2019s representative. In January 2005, Bleeker became more involved in the transactions between Plainview and plaintiff. Contracts and purchase orders executed by the parties identify Plainview as the purchaser. However, in correspondence with plaintiff, Bleeker and Erde made references to Plainview and Energex, which tended to group the companies together, including the following:\n1. The 14 March 2005 email from Bleeker in which he describes himself as V.P. of Business Development (Principal] as well) on the Energex side of the business.\n2. The 27 July 2005 email from Erde seeking assurance that Plainview/Energex really gets the best possible price[.]\n3. The 15 February 2006 email from Bleeker referring to \u201cbusiness transference and asset purchase of .Plainview\u201d by Energex.\nBetween July and November 2005, the business relationship between the parties became antagonistic due to conflicts over payments Plainview owed to plaintiff. On 20 October 2006, plaintiff filed suit against Plainview, Energex, Erde, and Bleeker, seeking damages under the following claims for relief: (1) recovery of the balance due plus interest, under plaintiff\u2019s contracts with Plainview; (2) breach of contract; (3) unjust enrichment; and (4) piercing the corporate veil.\nPlaintiff\u2019s complaint identified seven specific purchase orders for which plaintiff was owed \u201c$244,850.54 plus accrued interest].]\u201d Plaintiff contended that when it tried to obtain the amounts owed under its contracts with Plainview, Bleeker told plaintiff\u2019s representatives that Energex had \u201cacquired the assets of Plainview and that Plainview had been dissolved.\u201d Bleeker asserted the purchase of Plainview\u2019s assets by Energex served to insulate Energex from any responsibility for Plainview\u2019s debt due to plaintiff. Plaintiff also alleged that during 2005 \u201cErde and Bleeker repeatedly represented Energex and Plainview to be parts of the same organization, at least with regard to purchasing goods from [plaintiff.]\u201d\nBleeker filed an answer admitting that he was an officer of Energex, and that personal jurisdiction was properly exercised by North Carolina. Bleeker conceded that he had \u201cmade representations regarding the connections of Plainview and Energex[,]\u201d but denied specifically saying the companies were \u201cpart of the same legal corporate organization.\u201d Bleeker also admitted that \u201cPlainview owes some amount [of money] to [plaintiff] for past due accounts.\u201d Bleeker denied any individual personal liability under plaintiff\u2019s claim seeking to pierce the corporate veil. Plainview filed an answer and denied the material allegations of the complaint. Plainview also filed a motion to dismiss for lack of personal jurisdiction, which it later withdrew. Neither Bleeker nor Plainview are parties to this appeal.\nDefendants filed motions to dismiss for lack of personal jurisdiction and attached an affidavit by Erde to each motion. On 5 April 2007, the trial court denied the motions by Plainview, Energex, and Erde to dismiss for lack of personal jurisdiction, in an order concluding in pertinent part that:\n2. Plaintiff has properly pleaded and alleged a claim for piercing the corporate veil against the Defendants in this Matter;\n3. This Court has personal Jurisdiction over the Defendants; and\n4. The Court\u2019s exercise of personal jurisdiction over these Defendants does not violate their rights to Due Process.\nDefendants appeal.\nII. Issue\nDefendants argue the trial court erred by denying their motions to dismiss for lack of personal jurisdiction.\nTIL Standard of Review\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) (citations omitted).\nEither party may request that the trial court make findings regarding personal jurisdiction, but in the absence of such request, findings are not required.... Where no findings are made, proper findings are presumed, and our role on appeal is to review the record for competent evidence to support these presumed findings.\nBruggeman v. Meditrust Acquisition Co., 138 N.C. App. 612, 615, 532 S.E.2d 215, 217-18 (citations omitted), disc. rev. denied, 353 N.C. 261, 546 S.E.2d 90 (2000).\nIV. Personal Jurisdiction\nThis Court has stated:\nThe resolution of the question of in personam jurisdiction involves a two-fold determination: (1) do the statutes of North Carolina permit the courts of the jurisdiction to entertain this action against defendant, and (2) does the exercise of this power by the North Carolina courts violate due process of law.\nGreen Thumb Industry v. Nursery, Inc., 46 N.C. App. 235, 239-40, 264 S.E.2d 753, 755 (1980) (citing Dillon v. Funding Corp., 291 N.C. 674, 231 S.E.2d 629 (1977)). N.C. Gen. Stat. \u00a7 1-75.4 (2005) sets forth twelve grounds upon which a court may assert personal jurisdiction over a person.\nDefendants argue no statutory grounds exist for the trial court\u2019s assertion of personal jurisdiction over them, and argue the trial court\u2019s exercise of personal jurisdiction over them \u201cviolates their due process rights.\u201d\nIf the exercise of personal jurisdiction is challenged by a defendant, a trial court may hold an evidentiary hearing including oral testimony or depositions or may decide the matter based on affidavits. If the court takes the latter option, the plaintiff has the initial burden of establishing prima facie that jurisdiction is proper. Of course, this procedure does not alleviate the plaintiff\u2019s ultimate burden of proving personal jurisdiction at an evidentiary hearing or at trial by a preponderance of the evidence.\nBruggeman, 138 N.C. App. at 615, 532 S.E.2d at 217 (internal citations omitted).\nHere, the trial court decided the issue of personal jurisdiction without an evidentiary hearing. Plaintiff was required to show the uncontroverted allegations of its complaint were sufficient to state a claim for personal jurisdiction. Id., at 615, 532 S.E.2d at 217-18. See also Spinks v. Taylor, 303 N.C. 256, 264, 278 S.E.2d 501, 505-06 (1981) (citation and quotation omitted) (\u201cA verified 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).\nPlaintiff asserts that personal jurisdiction is proper under several statutory provisions including: (1) N.C. Gen. Stat. \u00a7 l-75.4(l)d, permitting exercise of jurisdiction over a defendant \u201cengaged in substantial activity within this State, whether such activity is wholly interstate, intrastate, or otherwise\u201d and (2) N.C. Gen. Stat. \u00a7 l-75.4(5)d, which states jurisdiction is proper where action \u201c[r] elates 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.\u201d The allegations of plaintiffs complaint support the exercise of personal jurisdiction under either provision, particularly when considered in the context of plaintiffs claim to pierce the corporate veil.\nHaving found that \u201cthe statutes of North Carolina permit the courts of this jurisdiction to entertain this action against defendant[s][,]\u201d we now decide whether \u201cthe exercise of this power\u201d would violate due process. Dillon, 291 N.C. at 675, 231 S.E.2d at 630. Our Supreme Court has stated:\nThe constitutional standard to be applied in determining whether a State may assert personal jurisdiction over a nonresident defendant is found in the landmark case of International Shoe Co. v. Washington, 326 U.S. 310, 90 L.Ed. 95, 66 S.Ct. 154 (1945): \u201c[D]ue process requires only that in order to subject a [nonresident] defendant to a judgment in personam, ... he have certain 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\nBuying Group, Inc. v. Coleman, 296 N.C. 510, 515, 251 S.E.2d 610, 614 (1979).\nTo generate minimum contacts, the 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. The facts of each case determine whether the defendant\u2019s activities in the forum state satisfy due process.\nTejal Vyas, LLC v. Carriage Park Ltd. P\u2019ship, 166 N.C. App. 34, 38-39, 600 S.E.2d 881, 885-86 (2004) (internal citations and quotations omitted), aff'd, 359 N.C. 315, 608 S.E.2d 751 (2005). Several factors are reviewed in determining minimum contacts including: \u201c1) the quantity of the contacts; 2) the nature and quality of the contacts; 3) the source and connection of the cause of action with those contacts; 4) the interest of the forum state; and 5) the convenience to the parties.\u201d Fox v. Gibson, 176 N.C. App. 554, 560, 626 S.E.2d 841, 845 (2006) (citation omitted). These factors must be considered \u201cin light of fundamental fairness and the circumstances of the case.\u201d Id. (citation omitted).\n1. Defendant Erde\nIn Erde\u2019s affidavit, he admitted that: (1) he was the president of Energex and vice president of Plainview and (2) he had visited plaintiff\u2019s factory in North Carolina \u201cin [his] role as a corporate officer of Plainview Batteries, Inc.\u201d Erde also stated that \u201cany dealings I had with Plaintiff were solely in my capacity as an officer of Plainview Batteries Inc.\u201d Erde argues he lacked sufficient minimum contacts for the trial court to exercise personal jurisdiction over him as an individual based upon the acts alleged in plaintiff\u2019s complaint. We agree.\n\u201c[P]ersonal jurisdiction over an individual officer or employee of a corporation may not be predicated merely upon the corporate contacts with the forum.\u201d Robbins v. Ingham, 179 N.C. App. 764, 771, 635 S.E.2d 610, 615 (2006) (citing Godwin v. Walls, 118 N.C. App. 341, 348, 455 S.E.2d 473, 479 (1995)), disc. rev. denied, 361 N.C. 221, 642 S.E.2d 448 (2007). Corporate officers are subject to personal jurisdiction when \u201cin addition to their roles as officers, [they] complete [] an act in their individual capacities . . . .\u201d Id. (emphasis supplied). In Robbins, this Court distinguished the case before it from prior precedent now cited in the dissenting opinion:\nPlaintiffs cite three cases in their brief in an attempt to prove that Hegg\u2019s, Ingham\u2019s and Trinity Court\u2019s contacts should be imputed to Gamble: Better Business Forms, Inc., 120 N.C. App. 498, 462 S.E.2d 832 [(1995)]; Centura Bank [v. Pee Dee Express, Inc.], 119 N.C. App. 210, 458 S.E.2d 15 [(1995)]; and Buying Group, Inc. v. Coleman, 296 N.C. 510, 251 S.E.2d 610 (1979). All three of these cases are easily distinguished from the instant case because in all three cases the individual defendants, in addition to their roles as officers, completed an act in their individual capacities that would make them subject to personal jurisdiction. For example, in Better Business Forms, Inc., we found sufficient minimum contacts existed as to two individual defendants who owned a corporate buyer, but we noted that both individuals had obligated themselves to purchase a business by signing personal guarantees. Better Business Forms, Inc., 120 N.C. App. at 501, 462 S.E.2d at 834. Similarly, in Centura Bank, we found individual defendants subject to personal jurisdiction in North Carolina, but we also noted that the individuals were individual guarantors. Centura Bank, 119 N.C. App. at 214, 458 S.E.2d at 19. Finally, in Buying Group, Inc., the Supreme Court of North Carolina decided the State had personal jurisdiction over an individual defendant partly because the defendant had signed a promissory note in his individual capacity, had attended trade shows in North Carolina, and had a continuing relationship with a North Carolina corporation. Buying Group, Inc., 296 N.C. at 516, 251 S.E.2d at 614.\nIn the instant case, a review of the record does not compel us to conclude that North Carolina has personal jurisdiction over Gamble. Unlike the cases discussed, we believe the facts of this case do not show Gamble acting in his individual capacity to a point where North Carolina has personal jurisdiction over Gamble. We affirm the trial court.\nId. at 772, 635 S.E.2d at 616 (emphasis supplied).\nThis Court recently addressed this issue and held under markedly similar facts that a defendant lacked sufficient minimum contacts with North Carolina to satisfy the due process prong of personal jurisdiction. See Rauch v. Urgent Care Pharm., Inc., 178 N.C. App. 510, 518-19, 632 S.E.2d 211, 217-18 (2006). In Rauch, the individual defendant\u2019s actions in the forum state were performed in his official capacity as president of the corporate defendant:\nDefendant Burns signed and submitted defendant Urgent Care\u2019s 2002 application to the North Carolina Board of Pharmacy, seeking privileges for Urgent Care to conduct pharmacy business in this state, however he signed the application in his capacity as president of defendant Urgent Care. There is no evidence in the record which suggests that defendant Bums participated in the filling of any prescriptions or compounding activities at Urgent Care during 2002 when the contaminated methylprednisolone injections were compounded. Similarly, defendant Bums had no direct involvement with the day-to-day operations of defendant Urgent Care in 2002. He also had no contact with anyone in North Carolina regarding Urgent Care\u2019s compounding methylprednisolone injections, and in fact, was unaware that Urgent Care was compounding the drug until after Urgent Care was notified about the possible contamination. Defendant Burns then spoke, via telephone, to physicians and other individuals in North Carolina regarding the investigation and the recall of the contaminated injections, however he did so in his capacity as president of defendant Urgent Care. Defendant Burns also does not own any real or personal property in this state, nor has he lived here since he was eighteen years old. The evidence does suggest that he may have visited the state for personal reasons prior to 2002, and that during such visit he delivered Urgent Care\u2019s application to the North Carolina Pharmacy Board.\nId. at 518, 632 S.E.2d at 217-18. Upon these facts, this Court held that \u201cdefendant Bums did not have sufficient minimum contacts with the state of North Carolina, such that a court in our state could exercise personal jurisdiction over him individually without violating his due process rights.\u201d Id. at 518, 632 S.E.2d at 217.\nWe hold the analyses in Robbins and Rauch are directly on point to the facts at bar and are clearly distinguishable from the cases cited in the dissenting opinion. See Buying Group, Inc., 296 N.C. at 510, 251 S.E.2d at 614; Centura Bank, Inc., 119 N.C. App. at 213, 458 S.E.2d at 18.\nHere, plaintiff wholly failed to allege any act Erde committed occurred within his individual capacity to subject him to personal jurisdiction. The trial court erred by denying Erde\u2019s motion to dismiss. That portion of the trial court\u2019s order is reversed.\n2. Defendant Energex\nEnergex argues that it cannot be subject to personal jurisdiction because the relevant contracts, correspondence, orders, and invoices all reference Plainview rather than Energex. \u201cHowever, plaintiff does not allege that [Energex] had such contacts, but rather, asserts jurisdiction based on disregard of the corporate entity, or veil-piercing.\u201d Strategic Outsourcing, Inc. v. Stacks, 176 N.C. App. 247, 252, 625 S.E.2d 800, 803 (2006).\ni. Piercing the Corporate Veil\nWhere the corporate veil is pierced, personal jurisdiction may be imputed to a defendant entity on the basis of the actions of its alter ego. \u201cOur courts will \u2018disregard the corporate form\u2019 and \u2018pierce the corporate veil\u2019 where [a party] exercises actual control over a corporation, operating it as a mere instrumentality or tool.\u201d Becker v. Graber Builders, Inc., 149 N.C. App. 787, 790, 561 S.E.2d 905, 908 (2002).\nOur Supreme Court has articulated the instrumentality rule as follows:\n[W]hen . . . the corporation is so operated that it is a mere instrumentality or alter ego of the sole or dominant shareholder and a shield for his activities in violation of the declared public policy or statute of the State, the corporate entity will be disregarded and the corporation and the shareholder treated as one and the same person, it being immaterial whether the sole or dominant shareholder is an individual or another corporation.\nHenderson v. Finance Co., 273 N.C. 253, 260, 160 S.E.2d 39, 44 (1968).\nTo impose liability based upon the instrumentality rule, three elements are required to be present:\n(1) Control, not mere majority or complete stock control, but complete domination, not only of finances, but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; and\n(2) S\u00fach control must have been used by the defendant to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or a dishonest and unjust act in contravention of plaintiff\u2019s legal rights; and\n(3) The aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of.\nStrategic Outsourcing, 176 N.C. App. at 253, 625 S.E.2d at 804 (emphasis omitted) (quoting Glenn v. Wagner, 313 N.C. 450, 455, 329 S.E.2d 326, 330 (1985)).\n\u201cFactors to consider in determining whether to pierce the corporate veil include: (1) inadequate capitalization; (2) non-compliance with corporate formalities; (3) complete domination and control of the corporation so that it has no independent identity; and (4) excessive fragmentation of a single enterprise into separate corporations.\u201d State ex rel. Cooper v. Ridgeway Brands Mfg., 184 N.C. App. 613, 621-22, 646 S.E.2d 790, 797 (2007) (citing Glenn, 313 N.C. at 455, 329 S.E.2d at 330-31).\nii. Plaintiff\u2019s Burden\n\u201c[When] jurisdiction is challenged [by a defendant, the] plaintiff has the burden of proving prima facie that a statutory basis for jurisdiction exists.\u201d Inspirational Network, Inc. v. Combs, 131 N.C. App. 231, 235, 506 S.E.2d 754, 758 (1998) (citation and quotation omitted). \u201cWhere unverified allegations in the complaint meet plaintiff\u2019s \u2018initial burden of proving the existence of jurisdiction ... and defendants ... do not contradict plaintiff\u2019s allegations in their sworn affidavit,\u2019 such allegations are accepted as true and deemed controlling.\u201d Id. (quoting Bush v. BASF Wyandotte Corp., 64 N.C. App. 41, 45, 306 S.E.2d 562, 565 (1983)) (emphasis supplied). \u201cWhen the allegations in a plaintiff\u2019s complaint, taken as true, are sufficient to state a claim for piercing the corporate veil, the trial court\u2019s grant of defendant\u2019s motion to dismiss is improper.\u201d State ex rel. Cooper, 184 N.C. App. at 622, 646 S.E.2d at 793.\nThe allegations of plaintiff\u2019s complaint include, inter alia, the following:\n46. Upon information and belief, Defendants Erde and/or Bleeker as officers, principal agents and primary shareholders of Energex and Plainview have failed to observe the proper corporate formalities as required by applicable corporate law.\n47. Upon information and belief, Defendants Erde and/or Bleeker hold complete domination, not only of finances, but of policy and business practice, in Energex and Plainview.\n48. Upon information and belief, Defendants Erde and/or Bleeker have used this control and domination of Energex and Plainview to conceal and/or divert assets away from Plainview to themselves and to Plainview\u2019s alter-ego Energex, thereby leaving Plainview inadequately capitalized and causing Plainview to default on its obligations to SAFT.\n49. Upon information and belief, Erde and/or Bleeker have fraudulently concealed and/or diverted Plainview\u2019s assets that would otherwise have been or should have been available to pay outstanding amounts owed to SAFT.\n50. Upon information and belief, Plainview\u2019s failure to pay the outstanding amounts owed to SAFT was caused by the actions of Erde and/or Bleeker, in particular their diverting assets from Plainview for personal gain or to the benefit of Plainview\u2019s alter-ego Energex. The actions of Erde and Bleeker were dishonest, unjust and in contravention of SAFT\u2019s legal rights.\n51. The actions taken by Erde and/or Bleeker amount to a use of Plainview and/or Energex as shields for activities in express violation of applicable corporate law.\nErde submitted an affidavit in support of Energex\u2019s motion to dismiss for lack of personal jurisdiction. Erde\u2019s affidavit stated that \u201cEnergex has never had any dealings with the Plaintiff\u2019 and that all transactions between the parties were made on behalf of Plainview, not Energex. Erde\u2019s affidavit also makes the conclusory statement that \u201cEnergex is an independent corporation, completely and totally separate from Plainview Batteries, Inc., also an independent New York corporation . . . These entities are separate corporations, independent of one another.\u201d\nErde\u2019s generalized allegation that Plainview and Energex are independent entities does not state a fact within Erde\u2019s personal knowledge, but is a conclusion to be drawn on the basis of factual allegations. See, e.g., East Mkt. St. Square, Inc. v. Tycorp Pizza IV, Inc., 175 N.C. App. 628, 636, 625 S.E.2d 191, 198 (2006) (discussing the \u201ccourt\u2019s findings of fact regarding the extent of [defendant\u2019s] control over [codefendant]\u201d and holding that this Court \u201cmust now ask whether these findings of fact support the trial court\u2019s conclusions of law that [codefendant] was the alter ego and mere instrumentality of the individual defendant[].\u201d).\nAs a conclusion rather than a statement of fact, Erde\u2019s contention that the two corporations are \u201ccompletely separate and independent\u201d was properly ignored by the trial court. \u201cAs stated in 3 Am. Jur. 2d, Affidavits \u00a7 13 . . . Statements in affidavits as to opinion, belief, or conclusions of law are of no effect.\u2019 \u201d Lemon v. Combs, 164 N.C. App. 615, 622, 596 S.E.2d 344, 348-49 (2004). See also, e.g., Ward v. Durham Life Ins. Co., 90 N.C. App. 286, 289, 368 S.E.2d 391, 393 (1988) (stating trial courts may not consider legal conclusions stated in an affidavit).\nThe assertions in Erde\u2019s affidavit do not contradict plaintiff\u2019s allegations that: (1) defendants violated certain corporate laws and formalities; (2) the individual defendants exercised control over the finances, policies, and business practices of both corporate defendants; and (3) assets were diverted from Plainview to Energex, leaving Plainview inadequately capitalized.\nWe hold that the uncontradicted allegations of plaintiff\u2019s complaint sufficiently state a basis for a claim of piercing the corporate veil, which allows the trial court to exercise personal jurisdiction over Energex. The trial court properly concluded that plaintiff had sufficiently alleged a claim for piercing the corporate veil. The trial court properly denied Energex\u2019s motion to dismiss. State ex rel. Cooper, 184 N.C. App. at 622, 646 S.E.2d at 797. The merits of plaintiff\u2019s claims, if any, are not before us. Our holding is solely limited to the jurisdictional issue. This assignment of error is overruled.\nV. Conclusion\nPlaintiff wholly failed to allege in its complaint that any act committed by Erde occurred in his individual capacity to subject him to personal jurisdiction. The trial court erred by denying Erde\u2019s motion to dismiss. That portion of the trial court\u2019s order is reversed.\nThe uncontradicted allegations in plaintiff\u2019s complaint regarding Energex are sufficient to state a claim for piercing the corporate veil. The trial court properly denied Energex\u2019s motion to dismiss. That portion of the trial court\u2019s order is affirmed. The trial court\u2019s order is affirmed in part, reversed in part, and remanded for further proceedings not inconsistent with this opinion.\nAffirmed in Part; Reversed in Part; and Remanded.\nJudge JACKSON concurs.\nJudge ARROWOOD dissents by separate opinion.", "type": "majority", "author": "TYSON, Judge." }, { "text": "ARROWOOD, Judge,\nconcurring in part and dissenting in part.\nI concur with the majority holding insofar as it affirms the trial court\u2019s denial of Defendant Energex\u2019s motion to dismiss for lack of personal jurisdiction. However, I believe that personal jurisdiction is also properly exercised over Defendant Erde. Accordingly, I respectfully dissent from the majority\u2019s reversal of the court\u2019s denial of Erde\u2019s motion to dismiss for lack of personal jurisdiction.\nThe dispositive issue is whether Erde had the requisite \u201cminimum contacts\u201d with North Carolina such that the exercise of personal jurisdiction over him does not violate his right to due process under the U.S. Constitution. \u201cWhether minimum contacts are present is determined not by using a mechanical formula or rule of thumb but by ascertaining what is fair and reasonable under the circumstances. However, \u2018in each case, there must be some act by which the defendant purposefully avails himself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws[.]\u2019 \u201d Better Business Forms v. Davis, 120 N.C. App. 498, 500, 462 S.E.2d 832, 833-34 (1995) (quoting Tom Togs, Inc. v. Ben Elias Industries Corp., 318 N.C. 361, 365, 348 S.E.2d 782, 786 (1986)). In the instant case, I believe it is beyond dispute that Erde \u201cpurposefully avail[ed] himself of the privilege of conducting activities within [North Carolina],\u201d thus subjecting himself to personal jurisdiction here.\nThe majority states that \u201cplaintiff wholly failed to allege any act committed by Erde occurred within his individual capacity to subject him to personal jurisdiction.\u201d I disagree. Allegations in Plaintiff\u2019s complaint that were not contradicted by Erde\u2019s affidavit include, in relevant part, the following:\n4. . . . [A]t all times alleged herein, Erde was Chief Operating Officer, Director and principal shareholder of Plainview and Chief Executive Officer, majority and/or principal shareholder of Energex and a resident of New York County, New York.\n6. This court possesses jurisdiction over Defendants based upon their continuous and systematic contacts with North Carolina, including, but not limited to:\n(a) Erde and Bleeker, as officers and principal agents of Plainview and Energex, visited SAFT Ltd. in North Carolina to tour the facilities and to negotiate a sales agreement between SAFT, Plainview and Energex;\n(b) Erde and Bleeker submitted multiple purchase orders to SAFT in North Carolina on behalf of and as officers and principal agents of Plainview and Energex;\n(c) Plainview and Energex transmitted payments to SAFT which were received by SAFT in North Carolina;\n(d) Erde and Bleeker on behalf of and as officers and principal agents of Plainview and Energex transmitted correspondence to SAFT which was received by SAFT in North Carolina;\n(9) Plainview and SAFT have had a business relationship dating back to 1996 during which time SAFT has supplied Plainview with a total of over five million dollars worth of goods.\n(10) Until January, 2005, SAFT representatives communicated primarily with Erde, who represented himself to be Chief Operating Officer and owner of Plainview. Erde acted as principal agent of Plainview with the authority to make all business decisions on behalf of Plainview relative to purchases from SAFT.\n(14) In January, 2005, Bleeker asked SAFT representatives. to meet with him and Erde to discuss renegotiating the existing credit agreement between SAFT and Plainview[.] . . . During that meeting, and in other discussions, both Bleeker and Erde informed SAFT that Plainview and/or Energex was planning to bid for various large government contracts and that the company would look to SAFT to meet its increased supply needs if SAFT in turn would raise Plainview\u2019s credit limit and extend the current repayment terms. . . .\n(15) Accordingly, in February, 2005, Erde, Bleeker and certain SAFT representatives met in New York to discuss new credit terms and Plainview and/or Energex\u2019s increased supply needsf.]\n(16) After the February, 2005 Meeting, and based on the representations made by Erde and Bleeker regarding Plainview and Energex\u2019s new business model and increased sales, SAFT raised Plainview\u2019s credit limit to $200,000 and extended repayment terms[.]\n(18) Upon information and belief, between February, 2005 and December, 2005, SAFT supplied Plainview with over $1,183,000.00 worth of goods. Orders for these goods were always placed by or on behalf of Plainview, regardless of whether the goods were to be used by Plainview or Energex.\nAs discussed in the majority opinion, Erde admitted in his affidavit that he was the president of Energex and vice president of Plainview, and that he had visited Plaintiff\u2019s factory in North Carolina \u201cin [his] role as a corporate officer of Plainview Batteries, Inc.\u201d Erde\u2019s affidavit and the uncontroverted allegations of Plaintiff\u2019s complaint show that Plaintiff had a long-standing business relationship with Plainview; that Erde is a corporate officer of both Plainview and Engergex; that Erde visited North Carolina at least once in connection with this commercial relationship; and that Erde was personally involved in negotiating and carrying out the contracts that gave rise to the instant lawsuit.\nErde\u2019s connections to North Carolina arose from his actions as officer and principal shareholder of Plainview and Energex. On this basis, Erde asserts that, because his \u201calleged acts in this case were undertaken in his official capacity and not as an individual,\u201d he \u201clacked sufficient minimum contacts to permit the exercise of personal jurisdiction over him as an individual.\u201d Erde contends that \u201cany dealings I had with Plaintiff were solely in my capacity as an officer of Plainview Batteries, Inc.\u201d and that without evidence that he \u201ccommitted any act in his individual capacity that was outside Plainview\u2019s alleged corporate acts in North Carolina,\u201d he cannot be subject to personal jurisdiction. Erde\u2019s position, which was accepted by the majority, apparently is that actions taken by an individual in the course of his employment or in his \u201cofficial\u201d capacity do not \u201ccount\u201d as part of a defendant\u2019s contacts with the forum state. I do not believe that this correctly states the law in North Carolina.\nIt is certainly true that, as noted by the majority, \u201cpersonal jurisdiction over an individual officer or employee of a corporation may not be predicated merely upon the corporate contacts with the forum.\u201d Robbins v. Ingham, 179 N.C. App. 764, 771, 635 S.E.2d 610, 615 (2006) (citing Godwin v. Walls, 118 N.C. App. 341, 348, 455 S.E.2d 473, 479 (1995)), disc. review denied, 361 N.C. 221, 642 S.E.2d 448 (2007). To base personal jurisdiction on the bare fact of a defendant\u2019s status as, e.g., corporate officer or agent, would violate his due process rights. Accordingly, North Carolina precedent has consistently required that, before a defendant is subject to personal jurisdiction, there be evidence that he personally took some action subjecting him to North Carolina\u2019s jurisdiction.\nFor example, in Rauch v. Urgent Care Pharm., Inc., 178 N.C. App. 510, 632 S.E.2d 211 (2006), a case cited by the majority, the plaintiff sued several individual and corporate defendants for injuries arising from alleged negligence in compounding a medication. The Plaintiff in Rauch attempted to exert personal jurisdiction over Defendant Burns on the basis of his being president of one of the corporate Defendants, and having signed the corporation\u2019s application to conduct business in North Carolina. However, there was \u201cno evidence in the record which suggests that defendant Burns participated in\u201d the allegedly negligent activities. The record indicated that \u201cdefendant Burns had no direct involvement with the day-to-day operations of [the corporate] defendant,\u201d that he \u201chad no contact with anyone in North Carolina regarding\u201d the events at issue, and that \u201cin fact, [he] was unaware\u201d of these events until after they were discovered by others. On these facts, this Court properly held that \u201cdefendant Bums did not have sufficient minimum contacts with the state of North Carolina, such that a court in our state could exercise personal jurisdiction over him individually without violating his due process rights.\u201d Rauch, 178 N.C. App. at 518, 632 S.E.2d at 217.\nSimilarly, in Robbins v. Ingham, also cited by the majority, the individual Defendant was an officer and principal shareholder of a corporate defendant. However, there was no allegation or evidence that the he had any contact with Plaintiffs or participated in the actions giving rise to the claims. This Court held that personal jurisdiction could not be exercised based solely upon defendant\u2019s status as a director and principal shareholder of the corporate defendant:\n[P]ersonal jurisdiction over an individual officer or employee of a corporation may not be predicated merely upon the corporate contacts with the fomm. The minimum contacts analysis \u201cfocuses on the actions of the non-resident defendant over whom jurisdiction is asserted, and not on the unilateral actions of some other entity.\u201d\nRobbins, 179 N.C. App. at 771, 635 S.E.2d at 615-16 (quoting Centura Bank v. Pee Dee Express, Inc., 119 N.C. App. 210, 213, 458 S.E.2d 15, 18 (1995)).\nI agree with the majority that both Rauch and Robbins were correctly decided on the facts of those cases, on the grounds that in both cases the individual defendant\u2019s connection to North Carolina was limited to his status as an agent, employee, or officer of a corporation or business. However, it is important to note that these cases did not hold either that (1) personal jurisdiction over a defendant may only be based on the contacts he has with the state in the course of his private life; or, conversely, that (2) in assessing personal jurisdiction we may not \u201ccount\u201d a defendant\u2019s contacts if they were made as part of his employment. Indeed, relevant precedent consistently interprets the requirement that a defendant act in his \u201cindividual capacity\u201d to mean only that he must personally have minimum contacts with North Carolina, and not that these contacts must arise from his \u201cpersonal life.\u201d\nThis is clearly demonstrated by this Court\u2019s holding in Godwin v. Walls. In Godwin, the nonresident individual defendant was a truck driver who was a resident of Maryland and was employed by a North Carolina trucking corporation. While operating a truck in Virginia, defendant was involved in an accident that killed two North Carolina residents. Plaintiffs sued several defendants, including the truck driver, who argued that North Carolina had no personal jurisdiction over him. This Court first considered the jurisdictional requirements of Plaintiffs\u2019 claims for wrongful death or injury to property, which require that a defendant\u2019s tortious conduct occur in North Carolina. The accident occurred while defendant was working for a North Carolina company. However, this Court held that because the status of the company could not be imputed to him, North Carolina lacked personal jurisdiction over the defendant as regards the claims requiring in-state actions. In contrast, jurisdiction over Plaintiffs\u2019 claims for negligent infliction of emotional distress and loss of consortium, although requiring injury to a North Carolina plaintiff, do not require that the claims be based on tortious conduct occurring in the state. Consequently, this Court held that personal jurisdiction could properly be exercised over defendant for these claims, based on actions personally taken by the defendant:\n[T]he emphasis upon the agency relationship ignores the issue for resolution in this appeal, namely, the exercise of personal jurisdiction by North Carolina courts over [the individual defendant], not [his corporate employer.] While a corporate entity is liable for any wrongful act or omission of an agent acting with proper authority, it does not follow an agent may be held liable under the jurisdiction of our courts for acts or omissions allegedly committed by the corporation.... [P]laintiffs may not assert jurisdiction over a corporate agent without some affirmative act committed in his individual official capacity.\nGodwin, 118 N.C. App. at 348, 455 S.E.2d at 479 (citations omitted). Significantly, this Court refers to a defendant\u2019s \u201cindividual official capacity.\u201d It is also notable that the pertinent actions of the Godwin defendant were all taken as part of his employment.\nIn another case, Carson v. Brodin, 160 N.C. App. 366, 585 S.E.2d 491 (2003), the plaintiffs, North Carolina residents, sued Virginia defendants for damages arising from the breach of a contract for construction of a vacation home in Virginia. When the nonresident individual defendant contested personal jurisdiction, this Court upheld the exercise of personal jurisdiction, based upon the defendant\u2019s commercial transactions with the plaintiffs:\nHere, defendant has engaged in sufficient contacts with North Carolina. He entered into a contract with North Carolina residents that those residents executed in North Carolina. ... By 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. Defendant\u2019s actions in contracting with North Carolina residents establish minimum contacts for specific jurisdiction because the actions are directly related to the basis of plaintiffs\u2019 claim.\nId. at 372, 585 S.E.2d at 496 (citing Hanson v. Denckla, 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 1298 (1958)). Thus, North Carolina precedent does not hold that personal jurisdiction can only be predicated upon a defendant\u2019s contacts with North Carolina in his \u201cpersonal life.\u201d\nIn addition,\nNorth Carolina common law interprets G.S. \u00a7 1-75.4 to extend jurisdiction to the full extent permitted by the Due Process Clause of the U.S. Constitution. In this regard, [it is significant] that in Calder v. Jones, 465 U.S. 783, 79 L. Ed. 2d 804 (1984), the United States Supreme Court expressly rejected the argument made by the instant Defendants. The Calder defendant, a Florida resident and newspaper reporter, challenged California\u2019s exercise of personal jurisdiction over him on the basis that, notwithstanding his contacts with California, principles of due process prohibited exercise of jurisdiction on the basis of his actions as an employee of the newspaper. The United States Supreme Court disagreed:\n\u201cPetitioners are correct that their contacts with California are not to be judged according to their employer\u2019s activities there. On the other hand, their status as employees does not somehow insulate them from jurisdiction. Each defendant\u2019s contacts with the forum State must be assessed individually. ... In this case, petitioners are primary participants in an alleged wrongdoing intentionally directed at a California resident, and jurisdiction over them is proper on that basis.\u201d\nBrown v. Refuel Am., Inc., 186 N.C. App. 631, 638, 652 S.E.2d 389, 394 (2007) (quoting Calder, 465 U.S. at 790, 79 L. Ed. 2d at 813).\nFurthermore, where a defendant is an officer and principal shareholder of a corporation, the North Carolina Supreme Court has explicitly directed that we consider his corporate actions in determining personal jurisdiction:\nWe hold that where, as in this case, defendant is a principal shareholder of the corporation and conducts business in North Carolina as principal agent for the corporation, then his corporate acts may be attributed to him for the purpose of determining whether the courts of this State may assert personal jurisdiction over him.\nUnited Buying Group, Inc. v. Coleman, 296 N.C. 510, 515, 251 S.E.2d 610, 614 (1979).\n\u201cThis Court is bound by decisions of the North Carolina Supreme Court.\u201d State v. Glynn, 178 N.C. App. 689, 697, 632 S.E.2d 551, 557, disc. review denied, 360 N.C. 651, 637 S.E.2d 180 (2006) (citations omitted). \u201cMoreover, this Court has no authority to overrule decisions of our Supreme Court and we have the responsibility to follow those decisions \u2018until otherwise ordered by the Supreme Court.\u2019 \u201d Dunn v. Pate, 106 N.C. App. 56, 60, 415 S.E.2d 102, 104 (1992) (quoting Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888 (1985), overturned on other grounds by Dunn v. Pate, 334 N.C. 115, 118, 431 S.E.2d 178, 180 (1993)). Buying Group, decided by the North Carolina Supreme Court, has never been overturned and remains the law. Consequently, in our determination of whether personal jurisdiction is properly exercised over Erde, we should impute to Erde his corporate actions as principal shareholder and officer of Plainview and its alter ego, Energex.\nThis Court followed Buying Group in Brickman v. Codella, 83 N.C. App. 377, 350 S.E.2d 164 (1986). In Brickman, the North Carolina plaintiff sued a nonresident defendant to recover on a note under which defendant guaranteed payment of a debt. The record showed that the defendant \u201cmade a minimum of one phone call and two mailings to [plaintiff] regarding his business proposal\u201d, Id. at 382, 350 S.E.2d at 167, and that \u201che mailed four monthly payments due under the lease to the [plaintiffs].\u201d Id. Noting that the defendant had \u201ctransacted business in North Carolina as principal agent for the company of which he is president\u201d, Id. at 381, 350 S.E.2d at 166, and relying on \u201cour Supreme Court\u2019s analysis in United Buying Group, Inc. v. Coleman, 296 N.C. 510, 251 S.E.2d 610 (1979),\u201d Id., this Court attributed to Defendant his actions as president of the corporation involved in the underlying controversy for purposes of analyzing personal jurisdiction, and upheld the exercise of personal jurisdiction over the defendant.\nIn sum, under North Carolina precedent the determination of whether personal jurisdiction is properly exercised over a defendant does not exclude consideration of defendant\u2019s actions merely because they were undertaken in the course of his employment. In particular, the corporate actions of a defendant who is also an officer and principal shareholder of a corporation are imputed to him for purposes of deciding the issue of personal jurisdiction. On the other hand, personal jurisdiction cannot be based solely on a defendant\u2019s employment status as the agent or officer of a company with ties to North Carolina, or on personal connections to North Carolina that fall short of the requisite \u201cminimum contacts.\u201d\nFor example, in Centura Bank v. Pee Dee Express, this Court considered four individual nonresident defendants. All four had signed personal guarantees for loans pertaining to the subject of the lawsuit. Two were also officers of the company involved in the suit and had additional contacts with North Carolina. The other two were the spouses of these defendants, with no other contact besides the loan guarantees. This Court first noted:\nAt the outset we note our Supreme Court has held \u201cwhere . . . defendant is a principal shareholder of the corporation and conducts business in North Carolina as principal agent for the corporation, then his corporate acts may be attributed to him for the purpose of determining whether the courts of this State may assert personal jurisdiction over him.\u201d In the present case [the individual defendants] were officers and the only two shareholders in Pee Dee. . . . Therefore, [their] corporate acts . . . can be imputed to them for the purpose of determining if they had sufficient minimum contacts.\nCentura Bank, 119 N.C. App. at 214, 458 S.E.2d at 18 (quoting Buying Group, 296 N.C. at 515, 251 S.E.2d at 614) (citations omitted). The Court held that jurisdiction was properly exercised over the corporate actors with business activity in North Carolina, but not over their wives who merely signed a guarantee.\nIt is undisputed that Erde (1) was an officer and principal shareholder in both Plainview and Energex; (2) visited North Carolina at least once to conduct business with Plaintiff; and (3) negotiated the terms of pertinent contracts and was otherwise personally involved in the transactions at issue. \u201cThe courts of this State are open to defendant for protection of his activities and to enforce the valid obligations which [Plaintiff] assumed by reason of the contract. The contract was to be performed in North Carolina and has a substantial connection with the State. Applying to these facts the law as interpreted by the Supreme Court of the United States, [I would] hold that assumption of in personam jurisdiction over defendant by the courts of this State does not offend traditional notions of fair play and substantial justice within the contemplation of the Due Process Clause of the Fourteenth Amendment and that defendant\u2019s contacts with the State are sufficient to satisfy due process requirements.\u201d Chadbourn, Inc. v. Katz, 285 N.C. 700, 707, 208 S.E.2d 676, 680 (1974).\nBecause I believe the undisputed allegations of Erde\u2019s actions on behalf of Plainview were sufficient to subject him to personal jurisdiction, I respectfully dissent from that part of the majority opinion reversing the denial of Erde\u2019s motion to dismiss for lack of personal jurisdiction.", "type": "concurring-in-part-and-dissenting-in-part", "author": "ARROWOOD, Judge," } ], "attorneys": [ "Moore & Van Allen, PLLC, by Anthony T. Lathrop and Michael T. Champion, plaintiff-appellee.", "Cameron Gilbert, Woodbury, New York, pro hac vice, for defendant-appellants Energex Batteries, Inc. and Bernie R. Erde.", "No brief filed for defendants Plainview Batteries, Inc. or Russell J. Bleeker." ], "corrections": "", "head_matter": "SAFT AMERICA, INC., Plaintiff v. PLAINVIEW BATTERIES, INC., ENERGEX BATTERIES, INC., BERNIE R. ERDE, and RUSSELL J. BLEEKER, Defendants\nNo. COA07-823\n(Filed 15 April 2008)\n1. Jurisdiction\u2014 personal \u2014 corporate officer and shareholder \u2014 insufficient minimum contacts\nA nonresident corporate officer and principal shareholder had insufficient minimum contacts with this state to permit the exercise of personal jurisdiction over him in an action for breach of contract and unjust enrichment based upon unpaid purchase orders for goods delivered to the corporate defendants because: (1) personal jurisdiction over an individual officer or employee of a corporation may not be predicated merely upon the corporate contacts with the forum; (2) corporate officers are subject to personal jurisdiction when in addition to their roles as officers, they complete an act in their individual capacities; and (3) plaintiff wholly failed to allege that any act defendant committed occurred within his individual capacity.\n2. Corporations\u2014 piercing corporate veil \u2014 sufficiency of allegations\nThe uncontradicted allegations in plaintiffs complaint sufficiently stated a basis for piercing the corporate veil for the purpose of establishing personal jurisdiction over the corporate defendant Energex in an action for breach of contract and unjust enrichment based upon unpaid purchase orders for goods delivered under contracts with corporate defendant Plainview where plaintiff alleged: (1) the individual defendants have violated certain corporate laws and formalities; (2) the individual defendants exercised control over the finances, polices, and business practices of both corporate defendants; and (3) assets were diverted from Plainview to Energex, leaving Plainview inadequately capitalized and unable to pay outstanding amounts owed to plaintiff.\nJudge ARROWOOD concurring in part and dissenting in part.\nAppeal by defendants Energex Batteries, Inc. and Bernie R. Erde from order entered 5 April 2007 by Judge David S. Cayer in Burke County Superior Court. Heard in the Court of Appeals 10 January 2008.\nMoore & Van Allen, PLLC, by Anthony T. Lathrop and Michael T. Champion, plaintiff-appellee.\nCameron Gilbert, Woodbury, New York, pro hac vice, for defendant-appellants Energex Batteries, Inc. and Bernie R. Erde.\nNo brief filed for defendants Plainview Batteries, Inc. or Russell J. Bleeker." }, "file_name": "0579-01", "first_page_order": 611, "last_page_order": 632 }