{ "id": 4159369, "name": "ROSSETTO USA, INC., Plaintiff v. GREENSKY FINANCIAL, LLC, FURNITURE RETAILERS, LLC, and ECLECTICGLOBAL, LLC, Defendants", "name_abbreviation": "Rossetto USA, Inc. v. Greensky Financial, LLC", "decision_date": "2008-07-01", "docket_number": "No. COA07-1529", "first_page": "196", "last_page": "207", "citations": [ { "type": "official", "cite": "191 N.C. App. 196" } ], "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": "616 S.E.2d 642", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633604 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "646", "parenthetical": "internal quotation marks omitted" }, { "page": "648" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0642-01" ] }, { "cite": "638 S.E.2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637346 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "210-211", "parenthetical": "quoting Chadbourn, Inc. v. Katz, 285 N.C. 700, 705, 208 S.E.2d 676, 679 (1974)" }, { "page": "210-11" } ], "opinion_index": 0, "case_paths": [ "/se2d/638/0203-01" ] }, { "cite": "625 S.E.2d 894", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635096 ], "weight": 4, "year": 2006, "pin_cites": [ { "page": "898", "parenthetical": "quoting City of Salisbury v. Kirk Realty Co., Inc., 48 N.C. App. 427, 429, 268 S.E.2d 873, 875 (1980)" }, { "page": "897" }, { "page": "899" } ], "opinion_index": 0, "case_paths": [ "/se2d/625/0894-01" ] }, { "cite": "611 S.E.2d 179", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632622 ], "year": 2005, "pin_cites": [ { "page": "182-83" } ], "opinion_index": 0, "case_paths": [ "/se2d/611/0179-01" ] }, { "cite": "293 F.3d 707", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9417223 ], "year": 2002, "pin_cites": [ { "page": "714" } ], "opinion_index": 0, "case_paths": [ "/f3d/293/0707-01" ] }, { "cite": "392 S.E.2d 632", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "633" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 213", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521913 ], "year": 1990, "pin_cites": [ { "page": "216" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0213-01" ] }, { "cite": "471 U.S. 462", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6205101 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "472" }, { "page": "540" } ], "opinion_index": 0, "case_paths": [ "/us/471/0462-01" ] }, { "cite": "350 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "267", "parenthetical": "quoting Burger King v. Rudzewicz, 471 U.S. 462, 472, 85 L. Ed. 2d 528, 540 (1985)" } ], "opinion_index": 0 }, { "cite": "83 N.C. App. 377", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358614 ], "year": 1986, "pin_cites": [ { "page": "382", "parenthetical": "quoting Burger King v. Rudzewicz, 471 U.S. 462, 472, 85 L. Ed. 2d 528, 540 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/83/0377-01" ] }, { "cite": "172 N.C. App. 812", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8321604 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "814", "parenthetical": "internal quotation marks omitted" }, { "page": "817" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0812-01" ] }, { "cite": "477 S.E.2d 211", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "216" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 332", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11889393 ], "year": 1996, "pin_cites": [ { "page": "340" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0332-01" ] }, { "cite": "341 S.E.2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "67" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 129", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522161 ], "year": 1986, "pin_cites": [ { "page": "132" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0129-01" ] }, { "cite": "208 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1974, "pin_cites": [ { "page": "679" }, { "page": "679" } ], "opinion_index": 0 }, { "cite": "285 N.C. 700", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569715 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "705" }, { "page": "705" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0700-01" ] }, { "cite": "361 N.C. 114", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3744223 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "123", "parenthetical": "quoting Chadbourn, Inc. v. Katz, 285 N.C. 700, 705, 208 S.E.2d 676, 679 (1974)" }, { "page": "123" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0114-01" ] }, { "cite": "348 S.E.2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "786" } ], "opinion_index": 0 }, { "cite": "318 N.C. 361", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4734507 ], "year": 1986, "pin_cites": [ { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0361-01" ] }, { "cite": "268 S.E.2d 873", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "875" } ], "opinion_index": 0 }, { "cite": "48 N.C. App. 427", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551058 ], "year": 1980, "pin_cites": [ { "page": "429" } ], "opinion_index": 0, "case_paths": [ "/nc-app/48/0427-01" ] }, { "cite": "176 N.C. App. 255", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8300996 ], "weight": 4, "year": 2006, "pin_cites": [ { "page": "258", "parenthetical": "quoting City of Salisbury v. Kirk Realty Co., Inc., 48 N.C. App. 427, 429, 268 S.E.2d 873, 875 (1980)" }, { "page": "255" }, { "page": "260" } ], "opinion_index": 0, "case_paths": [ "/nc-app/176/0255-01" ] }, { "cite": "169 N.C. App. 690", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8472795 ], "year": 2005, "pin_cites": [ { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0690-01" ] }, { "cite": "189 N.C. App. 770", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4156104 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "772" }, { "page": "773" } ], "opinion_index": 0, "case_paths": [ "/nc-app/189/0770-01" ] }, { "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": "462 S.E.2d 832", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "833" }, { "page": "833-34" } ], "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": "500" }, { "page": "500" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0498-01" ] }, { "cite": "600 S.E.2d 881", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "884", "parenthetical": "quoting Better Business Forms, Inc. v. Davis, 120 N.C. App. 498, 500, 462 S.E.2d 832, 833 (1995)" } ], "opinion_index": 0 }, { "cite": "166 N.C. App. 34", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8410703 ], "year": 2004, "pin_cites": [ { "page": "37", "parenthetical": "quoting Better Business Forms, Inc. v. Davis, 120 N.C. App. 498, 500, 462 S.E.2d 832, 833 (1995)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/166/0034-01" ] }, { "cite": "933 F. Supp. 507", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7651728 ], "year": 1996, "pin_cites": [ { "page": "509-10" } ], "opinion_index": 0, "case_paths": [ "/f-supp/933/0507-01" ] }, { "cite": "579 S.E.2d 919", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "922", "parenthetical": "quoting Regent Lighting Corp. v. Galaxy Elec. Mfg., Inc., 933 F. Supp. 507, 509-10 (1996)" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 703", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188534 ], "year": 2003, "pin_cites": [ { "page": "707-08", "parenthetical": "quoting Regent Lighting Corp. v. Galaxy Elec. Mfg., Inc., 933 F. Supp. 507, 509-10 (1996)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0703-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-75.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "556 S.E.2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "597" }, { "page": "597" } ], "opinion_index": 1 }, { "cite": "147 N.C. App. 722", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9381298 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "728" }, { "page": "728" } ], "opinion_index": 1, "case_paths": [ "/nc-app/147/0722-01" ] }, { "cite": "90 L. Ed. 2d 95", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1945, "pin_cites": [ { "page": "102" } ], "opinion_index": 1 }, { "cite": "326 U.S. 310", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6157001 ], "year": 1945, "pin_cites": [ { "page": "316" } ], "opinion_index": 1, "case_paths": [ "/us/326/0310-01" ] }, { "cite": "226 S.E.2d 527", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1976, "pin_cites": [ { "page": "530", "parenthetical": "citations omitted" }, { "page": "530", "parenthetical": "citations omitted" }, { "page": "530" } ], "opinion_index": 1 }, { "cite": "30 N.C. App. 172", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552892 ], "weight": 3, "year": 1976, "pin_cites": [ { "page": "176", "parenthetical": "citations omitted" }, { "page": "176" }, { "page": "176" } ], "opinion_index": 1, "case_paths": [ "/nc-app/30/0172-01" ] }, { "cite": "248 S.E.2d 260", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "262", "parenthetical": "\"Money payments are clearly a thing of value within the meaning of [N.C. Gen. Stat. \u00a7] l-75.4(5)(c).\"" } ], "opinion_index": 1 }, { "cite": "38 N.C. App. 328", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553662 ], "year": 1978, "pin_cites": [ { "page": "331", "parenthetical": "\"Money payments are clearly a thing of value within the meaning of [N.C. Gen. Stat. \u00a7] l-75.4(5)(c).\"" } ], "opinion_index": 1, "case_paths": [ "/nc-app/38/0328-01" ] }, { "cite": "231 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1977, "pin_cites": [ { "page": "630" }, { "parenthetical": "citation omitted" }, { "page": "631" }, { "page": "678" }, { "page": "632" }, { "page": "631" } ], "opinion_index": 1 }, { "cite": "291 N.C. 674", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558922 ], "weight": 3, "year": 1977, "pin_cites": [ { "page": "675" }, { "page": "676" }, { "page": "676" } ], "opinion_index": 1, "case_paths": [ "/nc/291/0674-01" ] }, { "cite": "546 S.E.2d 90", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 1 }, { "cite": "353 N.C. 261", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135782, 135657, 135981, 135737, 135578 ], "year": 2000, "opinion_index": 1, "case_paths": [ "/nc/353/0261-04", "/nc/353/0261-03", "/nc/353/0261-01", "/nc/353/0261-02", "/nc/353/0261-05" ] }, { "cite": "532 S.E.2d 215", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "pin_cites": [ { "page": "217-18" }, { "page": "218" }, { "page": "218" }, { "page": "218" }, { "page": "218" } ], "opinion_index": 1 }, { "cite": "138 N.C. App. 612", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11080985 ], "weight": 5, "pin_cites": [ { "page": "615" }, { "page": "615" }, { "page": "615" }, { "page": "615" }, { "page": "615" } ], "opinion_index": 1, "case_paths": [ "/nc-app/138/0612-01" ] }, { "cite": "348 S.E.2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1986, "pin_cites": [ { "page": "786", "parenthetical": "internal citation and quotation omitted" }, { "page": "786" }, { "page": "786" }, { "page": "786" }, { "page": "786" }, { "page": "786" } ], "opinion_index": 1 }, { "cite": "318 N.C. 361", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4734507 ], "weight": 6, "year": 1986, "pin_cites": [ { "page": "365", "parenthetical": "internal citation and quotation omitted" }, { "page": "365" }, { "page": "365" }, { "page": "365" }, { "page": "365" }, { "page": "365" } ], "opinion_index": 1, "case_paths": [ "/nc/318/0361-01" ] }, { "cite": "608 S.E.2d 751", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "opinion_index": 1 }, { "cite": "359 N.C. 315", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3796481 ], "year": 2005, "opinion_index": 1, "case_paths": [ "/nc/359/0315-01" ] }, { "cite": "600 S.E.2d 881", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "887", "parenthetical": "affirmed trial court's grant of the defendants' motions to dismiss for lack of personal jurisdiction when the \"[defendants' contacts were to mail [a] brochure and place a telephone call to [the] plaintiffs' attorney in North Carolina, at [the] plaintiffs' request[]\"" }, { "page": "887" } ], "opinion_index": 1 }, { "cite": "166 N.C. App. 34", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8410703 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "40" }, { "page": "40" } ], "opinion_index": 1, "case_paths": [ "/nc-app/166/0034-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-75.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(5)" }, { "page": "(5)" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 987, "char_count": 27388, "ocr_confidence": 0.736, "pagerank": { "raw": 1.3732758113084265e-07, "percentile": 0.6388295224933963 }, "sha256": "18714b05de66715ec3e54beceaff68dcb52ca8b0dde0f600ce972b2bd1b832b7", "simhash": "1:836b5dae547e1656", "word_count": 4293 }, "last_updated": "2023-07-14T16:44:10.260573+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McCULLOUGH concurs.", "Judge TYSON dissents with separate opinion." ], "parties": [ "ROSSETTO USA, INC., Plaintiff v. GREENSKY FINANCIAL, LLC, FURNITURE RETAILERS, LLC, and ECLECTICGLOBAL, LLC, Defendants" ], "opinions": [ { "text": "ARROWOOD, Judge.\nGreensky Financial, LLC (Greensky), and Furniture Retailers, LLC (Furniture Retailers) (together, Defendants), appeal from order entered 1 October 2007 denying Defendants\u2019 N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction. EclecticGlobal, LLC (Eclectic), did not challenge the jurisdiction of the court. Defendants appeal pursuant to N.C. Gen. Stat. \u00a7 l-277(b). We affirm in part and reverse in part.\nThe evidence of record tends to show that Greensky and Furniture Retailers are Limited Liability Companies with their principal places of business in Atlanta, Georgia. Eclectic also operated with its principal place of business in Georgia. Rossetto USA, Inc. (Rossetto), operates with its principal place of business in Guilford County, North Carolina, selling and distributing furniture. In 2004, Rossetto entered into a contract to sell furniture to Eclectic, and Rossetto shipped furniture from North Carolina to Georgia. Greensky, a financing company, had a contractual relationship with Eclectic, and pursuant thereto, Greensky made \u201cfrequent\u201d payments on behalf of Eclectic to Plaintiff between 2004 and 2006, either by mailing checks to Rossetto at Rossetto\u2019s office in North Carolina or by wiring payments to Rossetto\u2019s account in North Carolina. Rossetto also received numerous communications and phone calls from Greensky in North Carolina.\nIn November 2006, Eclectic placed an order for various items of furniture with Rossetto. While the items were in transit, Rossetto learned from Greensky that Furniture Retailers had \u201c[begun] to operate, control or assume the business of Eclectic.\u201d Rossetto immediately issued a revised invoice to Furniture Retailers, who took possession of the furniture upon delivery. Rossetto also received a call in their office in North Carolina from a man named, \u201cDean,\u201d \u2014 an employee of Furniture Retailers, who had questions about the furniture. Rossetto learned that Furniture Retailers advertised Rossetto furniture online through eBay. Rossetto received an email from a customer, which was \u201cissued or sent by Greensky.\u201d The email \u201cshows that Greensky [attempted] to sell Rossetto\u2019s furniture even though it has not paid Rossetto for such furniture.\u201d\nOn 25 April 2007, Rossetto filed a complaint against Greensky, Furniture Retailers and Eclectic, alleging breach of contract or quasi-contract and conversion.\nOn 2 July 2007, Greensky and Furniture Retailers filed a motion to dismiss for lack of personal jurisdiction, contending that Greensky and Furniture Retailers had no \u201clocal presence or status\u201d in North Carolina and that they \u201cdid not make a promise to Plaintiff[,]\u201d with regard to an exchange of goods or services in North Carolina. Defendants submitted the affidavit of David Zalik (Zalik), managing member of both Greensky and Furniture Retailers, and Plaintiffs submitted the affidavit of Andrea Verardo (Verardo), an employee of Rossetto. Eclectic did not challenge the jurisdiction of the court.\nOn 1 October 2007, the trial court entered an order denying Defendants\u2019 motion to dismiss for lack of personal jurisdiction. From this order, and pursuant to N.C. Gen. Stat. \u00a7 l-277(b) (2007), which provides for \u201cthe right of immediate appeal from an adverse ruling as to the jurisdiction of the court over the person or property of the defendant],]\u201d Defendants appeal.\nPersonal Jurisdiction\nThe dispositive issues here are whether Greensky and Furniture Retailers had the requisite \u201cminimum contacts\u201d with North Carolina such that the exercise of personal jurisdiction over Greensky and Furniture Retailers did not violate their right to due process under the U.S. Constitution. When addressing a question of personal jurisdiction, the court engages in a two-step inquiry.\n\u201cFirst, the court must determine whether the applicable long-arm statute permits the exercise of jurisdiction over the defendant. Next, the court determines whether the exercise of jurisdiction comports with due process under the Fourteenth Amendment. North Carolina\u2019s long-arm statute, N.C. Gen. Stat. \u00a7 1-75.4, was enacted to make available to the North Carolina courts the full jurisdictional powers permissible under federal due process. Since the North Carolina legislature designed the long-arm statute to extend personal jurisdiction to the limits permitted by due process, the two-step inquiry merges into one question: whether the exercise of jurisdiction comports with due process.\u201d\nLang v. Lang, 157 N.C. App. 703, 707-08, 579 S.E.2d 919, 922 (2003) (quoting Regent Lighting Corp. v. Galaxy Elec. Mfg., Inc., 933 F. Supp. 507, 509-10 (1996)) (internal quotation marks omitted).\nGenerally, our \u201c \u2018standard 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.\u2019 \u201d Tejal Vyas, LLC v. Carriage Park Ltd. P\u2019ship, 166 N.C. App. 34, 37, 600 S.E.2d 881, 884 (2004) (quoting Better Business Forms, Inc. v. Davis, 120 N.C. App. 498, 500, 462 S.E.2d 832, 833 (1995)), aff'd, 359 N.C. 315, 608 S.E.2d 751 (2005). \u201cThe standard of review to be applied by a trial court in deciding a motion under Rule 12(b)(2) depends upon the procedural context confronting the court.\u201d Eaker v. Gower, 189 N.C. App. 770, 772, - S.E.2d -, \u2014 (2008); see also Banc of Am. Secs. LLC v. Evergreen Int\u2019l Aviation, Inc., 169 N.C. App. 690, 693, 611 S.E.2d 179, 182-83 (2005). When parties \u201csubmit dueling affidavits ... the court may hear the matter on affidavits presented by the respective parties, or the court may direct that the matter be heard wholly or partly on oral testimony or depositions.\u201d Eaker, 189 N.C. App. at 773, - S.E.2d at -. \u201cIf the trial court chooses to decide the motion based on affidavits, the trial judge must determine the weight and sufficiency of the evidence presented in the affidavits much as a juror.\u201d Id.\nHere, the trial court did not make findings of fact in its order. However, absent a request by the parties, which does not appear in the record, the trial court is not required to find the facts upon which its ruling is based. N.C. Gen. Stat. \u00a7 1A-1, Rule 52(a)(2) (2007). \u201c \u2018In such case, it will be presumed that the judge, upon proper evidence, found facts sufficient to support' his judgment.\u2019 \u201d A.R. Haire, Inc. v. St. Denis, 176 N.C. App. 255, 258, 625 S.E.2d 894, 898 (2006) (quoting City of Salisbury v. Kirk Realty Co., Inc., 48 N.C. App. 427, 429, 268 S.E.2d 873, 875 (1980)) (internal quotation marks omitted). Defendants and Plaintiff submitted dueling affidavits addressing personal jurisdiction. Therefore, we review the record to determine whether it contains competent evidence to support the trial court\u2019s presumed findings to support its ruling that Defendants were subject to personal jurisdiction in the courts of this state.\n\u201cTo establish in personam jurisdiction over non-resident defendants, there must be \u2018certain minimum contacts [between the nonresident defendant and the forum] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.\u2019 \u201d A.R. Haire, 176 N.C. App. at 255, 625 S.E.2d at 897 (quoting Tom Togs, Inc. v. Ben Elias Indus. Corp., 318 N.C. 361, 365, 348 S.E.2d 782, 786 (1986)).\n\u201cApplication of the minimum contacts rule \u2018will vary with the quality and nature of the defendant\u2019s activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.\u2019 \u201d\nSkinner v. Preferred Credit, 361 N.C. 114, 123, 638 S.E.2d 203, 210-211 (2006) (quoting Chadbourn, Inc. v. Katz, 285 N.C. 700, 705, 208 S.E.2d 676, 679 (1974)).\nIn determining minimum contacts, the court looks at several factors, including: (1) 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.\nA.R. Haire, 176 N.C. App. at 260, 625 S.E.2d at 899. No single factor controls, but all factors \u201cmust be weighed in light of fundamental fairness and the circumstances of the case.\u201d B.F. Goodrich Co. v. Tire King and Smith v. Hill, 80 N.C. App. 129, 132, 341 S.E.2d 65, 67 (1986). \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.\u201d Better Business Forms, Inc., 120 N.C. App. at 500, 462 S.E.2d at 833-34. \u201cIn light of modern business practices, the quantity, or even the absence, of actual physical contacts with the forum state merely constitutes a factor to be considered and is not controlling in determining whether minimum contacts exists.\u201d Starco, Inc. v. AMG Bonding and Ins. Services, 124 N.C. App. 332, 340, 477 S.E.2d 211, 216 (1996).\nWe first examine whether the exercise of personal jurisdiction of the court with regard to Greensky comports with due process. We conclude Greensky had minimum contacts in this.State.\nThe affidavits submitted by Zalik and Verardo provided the following evidence to support the trial court\u2019s presumed findings of fact regarding jurisdiction as to Greensky. \u201cRossetto sold furniture to EclecticGlobal, LLC[, and i]n connection with such sales, Rossetto would ship furniture from North Carolina to the State of Georgia.\u201d \u201cPayment(s) for such furniture were frequently made by Greensky Financial, LLC . . . through either a check mailed to Rossetto at our office in the State of North Carolina or by wire to our account in the State of North Carolina.\u201d Verardo stated that Greensky made payments \u201cfrequently\u201d since 2004. Specifically, the record reveals that on 8 December 2006 and 13 December 2006, Greensky wired payments to Rossetto. \u201cRossetto received numerous communications and phone calls from Greensky directed to its office in the State of North Carolina.\u201d Greensky also informed Rossetto that Furniture Retailers had assumed control of Eclectic, and an email from one of Rossetto\u2019s customers revealed that Greensky attempted to sell Rossetto furniture for which payment had not been made by either Greensky, Eclectic or Furniture Retailers.\nWe conclude that the foregoing evidence, regarding Greensky\u2019s consistent and continuous two-year interaction with Rossetto in reference to the sale of furniture from Rossetto to Eclectic, which included numerous communications, \u201cfrequent\u201d payments for the furniture purchased by Eclectic, and the alleged attempted sale of Rossetto furniture without payment, is sufficient to support \u201cminimum contacts\u201d in that Greensky \u201cpurposefully avail[ed] [it]self of the privilege of conducting activities within [North Carolina],\u201d thus subjecting itself to personal jurisdiction here. Havey v. Valentine, 172 N.C. App. 812, 814, 616 S.E.2d 642, 646 (2005) (internal quotation marks omitted) (stating that \u201c[p]urposeful availment is shown if the defendant has taken deliberate action within the forum state or if he has created continuing obligations to forum residents\u201d). See also Brickman v. Codella, 83 N.C. App. 377, 382, 350 S.E.2d 164, 267 (1986) (quoting Burger King v. Rudzewicz, 471 U.S. 462, 472, 85 L. Ed. 2d 528, 540 (1985)) (stating that \u201cdue process requires that individuals have \u2018fair warning that a particular activity may subject [them] to the jurisdiction of a foreign sovereign[,]\u2019 [and t]he fair warning requirement is satisfied if the defendant has purposefully directed his activities at residents of the forum, and the litigation results from alleged injuries that arise out of or relate to those activities\u201d). This assignment of error is overruled.\nWe next examine whether the exercise of personal jurisdiction of the court with regard to Furniture Retailers comports with due process. We conclude that Furniture Retailers did not maintain minimum contacts with this State.\nThe affidavits submitted by Zalik and Verardo provide the following evidence to support the trial court\u2019s presumed findings of fact with regard to jurisdiction as to Furniture Retailers. Furniture Retailers took over or assumed control of Ecletic in November 20Q6, and Furniture Retailers was allegedly controlled by Greensky; however, Zalik\u2019s opposing affidavit states that the two corporations were two distinctly different corporate entities. Furniture Retailers received the November 2006 shipment of furniture from Rossetto. \u201cDean,\u201d an employee of Furniture Retailers, called Rossetto and asked questions about the furniture, and Furniture Retailers allegedly advertised Rossetto furniture online through eBay.\nUnlike Greensky, we can find no specific \u201c \u2018act by which [Furniture Retailers] purposefully avail[ed] itself of the privilege of conducting activities within the forum State[.]\u2019 \u201d Skinner, 361 N.C. at 123, 638 S.E.2d at 210-11 (quoting Chadbourn, 285 N.C. at 705, 208 S.E.2d at 679). The evidence tends to show that Furniture Retailers passively received the shipment of furniture from Rossetto, intended for Eclectic. Furniture Retailers allegedly made one phone call to Rossetto in North Carolina and attempted to sell the furniture on eBay. We conclude that the foregoing is insufficient to establish minimum contacts with North Carolina. See Stallings v. Hahn, 99 N.C. App. 213, 216, 392 S.E.2d 632, 633 (1990) (concluding that the defendant did not have \u201cminimum contacts\u201d with the forum state when \u201c[t]he only contacts between defendant and the forum State . . . [were] the advertisement placed in Hemmings Motor News, the telephone calls between plaintiff and defendant, and the cashier\u2019s check sent by plaintiff to defendant\u201d); see also A.R. Haire, 176 N.C. App. 255, 625 S.E.2d 894 (holding that because Defendants performed no act which would purposefully avail themselves of the privilege of conducting activities within this State, the finding of in personam jurisdiction violated Defendants\u2019 due process rights); Havey, 172 N.C. App. at 817, 616 S.E.2d at 648 (quoting ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 714 (4th Cir. Md. 2002)) (stating that \u201ca person who simply places information on the Internet does not subject himself to jurisdiction in each State into which the electronic signal is transmitted and received\u201d).\nFor the foregoing reasons, we affirm the portion of the order of the trial court denying Greensky\u2019s motion to dismiss for lack of personal jurisdiction, and reverse the portion of the order denying Furniture Retailers motion to dismiss for lack of personal jurisdiction.\nAffirmed in Part and Reversed in Part.\nJudge McCULLOUGH concurs.\nJudge TYSON dissents with separate opinion.", "type": "majority", "author": "ARROWOOD, Judge." }, { "text": "TYSON, Judge\ndissenting.\nThe majority\u2019s opinion erroneously affirms the trial court\u2019s order against GreenSky Financial, LLC (\u201cGreenSky\u201d) and also erroneously reverses the trial court\u2019s order against Furniture Retailers, LLC (\u201cFurniture Retailers\u201d). I disagree and respectfully dissent.\nI. Standard of Review\nWhen the trial court ruled on GreenSky\u2019s and Furniture Retailers\u2019s Rule 12(b)(2) motion to dismiss, it entered no findings of fact. Absent a request by one of the parties, the trial court is not required to make findings of fact when ruling on a motion. N.C. Gen. Stat. \u00a7 1A-1, Rule 52(a)(2) (2007). \u201cWhere 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.\u201d Bruggeman v. Meditrust Acquisition Co., 138 N.C. App. 612, 615, 532 S.E.2d 215, 217-18 (citation omitted), disc. rev. denied, 353 N.C. 261, 546 S.E.2d 90 (2000).\nII. In Personam, Jurisdiction\nA two-step analysis is required to determine whether a court may exercise in personam jurisdiction over a non-resident defendant. Dillon v. Numismatic Funding Corp., 291 N.C. 674, 675, 231 S.E.2d 629, 630 (1977). \u201cFirst, do the statutes of North Carolina permit the courts of this jurisdiction to entertain this action against defendant. If so, does the exercise of this power by the North Carolina courts violate due process of law.\u201d Id. (citation omitted).\nA. N.C. Gen. Stat. \u00a7 1-75.4(5)\nN.C. Gen. Stat. \u00a7 1-75.4(5) (2007), the long-arm statute, confers jurisdiction in a court in this State having subject matter jurisdiction over the allegations, in any action that:\nc. 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\nd. 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....\n1. GreenSky\nThe record on appeal cont\u00e1ins an affidavit provided by David Zalik (\u201cZalik\u201d), a managing member of GreenSky and Furniture Retailers. Zalik\u2019s affidavit states, \u201c[p]ursuant to certain agreements between GreenSky and Eclectic [Global, LLC (\u201cEclectic\u201d)], GreenSky made various payments to [Rossetto USA, Inc. (\u201cRossetto\u201d)] on behalf of Eclectic from approximately September 2006 through and including December 2006.\u201d These \u201cagreements between GreenSky and Eclectic . . . .\u201d are sufficient to bring GreenSky under the jurisdiction of the trial court pursuant to N.C. Gen. Stat. \u00a7 l-75.4(5)(c). See Pope v. Pope, 38 N.C. App. 328, 331, 248 S.E.2d 260, 262 (1978) (\u201cMoney payments are clearly a thing of value within the meaning of [N.C. Gen. Stat. \u00a7] l-75.4(5)(c).\u201d); compare Bank v. Funding Corp., 30 N.C. App. 172, 176, 226 S.E.2d 527, 530 (1976) (citations omitted) (\u201cThe mere mailing of a payment from outside the State by a nonresident to a party in this State under a contract made outside the State is not sufficient \u2018contacts\u2019 within this State to sustain in personam jurisdiction in the forum State.\u201d).\n2. Furniture Retailers\nThe record on appeal also contains an affidavit provided by Andrea Verardo (\u201cVerardo\u201d), an employee of Rossetto \u201cfamiliar with the accounts, sales, orders and billings of Rossetto.\u201d Verardo\u2019s affidavit states:\nIn or about November 2006, Eclectic placed an order for various items of furniture with Rossetto, While such items were in transit, Rossetto learned, from Greensky that Furniture Retailers . . . had taken over or otherwise began to operate, control or assume the business of Eclectic. As a result, Rossetto immediately issued a revised invoice to Furniture Retailers, who took possession of the furniture upon delivery.\n(Emphasis supplied). Eclectic\u2019s November 2006 order, Rossetto\u2019s acceptance and shipment , of that order, and Furniture Retailers\u2019s acceptance of delivery of the goods after it \u201ct[ook] over or otherwise began to operate, control or assume the business of Eclectic[]\u201d were actions sufficient to bring Furniture Retailers within the jurisdiction of the trial court pursuant to N.C. Gen. Stat. \u00a7 l-75.4(5)(d).\nBecause I would hold both GreenSky\u2019s and Furniture Retailers\u2019s actions were sufficient to bring them within the jurisdiction of the trial court pursuant to N.C. Gen. Stat. \u00a7 l-75.4(5)(c) and (d), respectively, I turn to the second step of the jurisdictional analysis: \u201cwhether due process of law would be violated by permitting the courts of this jurisdiction to exercise [in personam jurisdiction] over defendants].\u201d Dillon, 291 N.C. at 676, 231 S.E.2d at 631.\nB. Due Process\n\u201c[T]he test to determine if a corporation may be subjected to in personam jurisdiction in a foreign forum depends upon whether maintenance of the suit in the forum offends \u2018traditional notions of fair play and substantial justice.\u2019 \u201d Id. at 678, 231 S.E.2d at 632 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L. Ed. 2d 95, 102 (1945)).\nIn 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; the unilateral activity within the forum state of others who claim some relationship with a non-resident defendant will not suffice. This relationship between the defendant and the forum must be such that he should reasonably anticipate being haled into court there.\nTom Togs, Inc. v. Ben Elias Industries Corp., 318 N.C. 361, 365, 348 S.E.2d 782, 786 (1986) (internal citation and quotation omitted) ' (emphasis supplied).\n1. GreenSky\nHere, the record on appeal shows that GreenSky sent payments to Rossetto on behalf of Eclectic and contacted Rossetto by telephone on several occasions. This evidence, standing alone, is insufficient \u201ccompetent evidence to support [the trial court\u2019s] presumed finding[]\u201d that GreenSky \u201cpurposefully availfed] [itself] of the privilege of conducting activities within [North Carolina] . . . .\u201d Bruggeman, 138 N.C. App. at 615, 532 S.E.2d at 218; Tom Togs, Inc., 318 N.C. at 365, 348 S.E.2d at 786; see also Tejal Vyas, LLC v. Carriage Park Ltd. P\u2019ship, 166 N.C. App. 34, 40, 600 S.E.2d 881, 887 (2004) (affirmed trial court\u2019s grant of the defendants\u2019 motions to dismiss for lack of personal jurisdiction when the \u201c[defendants\u2019 contacts were to mail [a] brochure and place a telephone call to [the] plaintiffs\u2019 attorney in North Carolina, at [the] plaintiffs\u2019 request[]\u201d), aff\u2019d per curium, 359 N.C. 315, 608 S.E.2d 751 (2005); Corbin Russwin, Inc. v. Alexander\u2019s HDWE., Inc., 147 N.C. App. 722, 728, 556 S.E.2d 592, 597 (2001) (\u201cOther than [four] payments [sent to North Carolina], we find nothing else to indicate that [the defendant] purposely availed itself of the benefits and protections of the laws of North Carolina. This contact is too tenuous to avoid offending \u2018traditional notions of fair play and substantial justice.\u2019 \u201d); Bank, 30 N.C. App. at 176, 226 S.E.2d at 530 (citations omitted) (\u201cThe mere mailing of a payment from outside the State by a nonresident to a party in this State under a contract made outside the State is not sufficient \u2018contacts\u2019 within this State to sustain in personam jurisdiction in the forum State.\u201d).\nFollowing the precedents above, GreenSky\u2019s payments and telephone communications alone are insufficient to hale GreenSky into court in North Carolina. Tom Togs, Inc., 318 N.C. at 365, 348 S.E.2d at 786. GreenSky has committed no act to \u201cpurposefully avail[] [itself] of the privilege of conducting activities within [North Carolina] ....\u201d Id. I would hold that the trial court erred when it denied GreenSky\u2019s motion to dismiss pursuant to Rule 12(b)(2) of the North Carolina Rules of Civil Procedure for lack of in personam jurisdiction. Dillon, 291 N.C. at 676, 231 S.E.2d at 631.\n2. Furniture Retailers\nHere, evidence before the trial court and in the record on appeal shows: (1) Furniture Retailers \u201chad taken over or otherwise began to operate, control or assume the business of Eclectic[]\u201d when it \u201ctook possession of the furniture upon delivery []\u201d and (2) Rossetto invoiced Furniture Retailers for the goods prior to Furniture Retailers\u2019s acceptance of delivery. This evidence constitutes \u201ccompetent evidence to support [the trial court\u2019s] presumed finding[]\u201d that Furniture Retailers \u201cpurposefully avail[ed] [itself] of the privilege of conducting activities within [North Carolina] . . . .\u201d Bruggeman, 138 N.C. App. at 615, 532 S.E.2d at 218; Tom Togs, Inc., 318 N.C. at 365, 348 S.E.2d at 786; N.C. Gen. Stat. \u00a7 l-75.4(5)(d). Furniture Retailers could \u201creasonably anticipate being haled into court. ...\u201d in North Carolina once it accepted delivery of furniture shipped and invoiced to it by Rossetto from North Carolina after it \u201ct[ook] over or otherwise began to operate, control or assume the business of Eclectic.\u201d Tom Togs, Inc., 318 N.C. at 365, 348 S.E.2d at 786.\nThe trial court properly denied Furniture Retailers\u2019s motion to dismiss pursuant to Rule 12(b)(2) of the North Carolina Rules of Civil Procedure. The majority\u2019s opinion reversing the trial court\u2019s ruling is erroneous. Id.\nIII. Conclusion\nUnder the first step of the jurisdictional analysis, both GreenSky\u2019s and Furniture Retailers\u2019s actions were sufficient for the trial court to exercise jurisdiction pursuant to N.C. Gen. Stat. \u00a7 l-75.4(5)(c) and (d), respectively. The record on appeal does not contain \u201ccompetent evidence to support [the trial court\u2019s] presumed findingsQ\u201d to deny GreenSky\u2019s Rule 12(b)(2) motion to dismiss for lack of in personam jurisdiction. Bruggeman, 138 N.C. App. at 615, 532 S.E.2d at 218; see Tejal Vyas, LLC, 166 N.C. App. at 40, 600 S.E.2d at 887; Corbin Russwin, Inc., 147 N.C. App. at 728, 556 S.E.2d at 597; Bank, 30 N.C. App. at 176, 226 S.E.2d at 530. The trial court\u2019s denial of GreenSky\u2019s motion to dismiss should be reversed.\nThe record on appeal contains \u201ccompetent evidence to support [the trial court\u2019s] presumed findings []\u201d to deny Furniture Retailers\u2019s Rule 12(b)(2) motion to dismiss. Bruggeman, 138 N.C. App. at 615, 532 S.E.2d at 218; see Tom Togs, Inc., 318 N.C. at 365, 348 S.E.2d at 786. The trial court\u2019s denial of Furniture Retailers\u2019s motion to dismiss should be affirmed. The majority\u2019s opinion is erroneous on both rulings. I respectfully dissent.", "type": "dissent", "author": "TYSON, Judge" } ], "attorneys": [ "Forman Rossabi Black, RA., by Amiel J. Rossabi and Emily J. Meister, for Plaintiff-Appellee.", "Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P, by Clinton R. Pinyan and John S. Buford, for Defendants-Appellants." ], "corrections": "", "head_matter": "ROSSETTO USA, INC., Plaintiff v. GREENSKY FINANCIAL, LLC, FURNITURE RETAILERS, LLC, and ECLECTICGLOBAL, LLC, Defendants\nNo. COA07-1529\n(Filed 1 July 2008)\n1. Jurisdiction\u2014 personal jurisdiction \u2014 minimum contacts\u2014 consistent and continuous interaction\nThe trial court did not err in a breach of contract or quasi-contract and conversion case by denying defendant Greensky\u2019s motion to dismiss under N.C.G.S. \u00a7 1A-1, Rule 12(b)(2) based on lack of personal jurisdiction because defendant had sufficient minimum contacts to purposefully avail itself of the privilege of conducting activities within North Carolina, thus subjecting itself to personal jurisdiction, including: (1) defendant\u2019s consistent and continuous two-year interaction with plaintiff in reference to the sale of furniture from plaintiff to Eclectic; (2) numerous communications; (3) frequent payments for the furniture purchased by Eclectic; and (4) the alleged attempted sale of plaintiff\u2019s furniture without payment.\n2. Jurisdiction\u2014 personal jurisdiction \u2014 minimum contacts\u2014 passive receipt of shipment\nThe trial court erred in a breach of contract or quasi-contract and conversion c\u00e1se by denying defendant Furniture Retailers\u2019s motion to dismiss under N.C.G.S. \u00a7 1A-1, Rule 12(b)(2) based on lack of personal jurisdiction because: (1) there was no specific act by which defendant purposefully availed itself of the privilege of conducting activities within North Carolina; and (2) defendant\u2019s passive receipt of the shipment of furniture from plaintiff intended for Eclectic, its one phone call to plaintiff in North Carolina, and its attempt to sell furniture on eBay was insufficient to establish minimum contacts with North Carolina.\nJudge TYSON dissenting.\nAppeal by Defendants Greensky Financial, LLC, and Furniture Retailers, LLC, from order entered 1 October 2007 by Judge L. Todd Burke in Guilford County Superior Court.- Heard in the Court of Appeals 1 May 2008.\nForman Rossabi Black, RA., by Amiel J. Rossabi and Emily J. Meister, for Plaintiff-Appellee.\nBrooks, Pierce, McLendon, Humphrey & Leonard, L.L.P, by Clinton R. Pinyan and John S. Buford, for Defendants-Appellants." }, "file_name": "0196-01", "first_page_order": 228, "last_page_order": 239 }