{
  "id": 4170345,
  "name": "BARLOWORLD FLEET LEASING, LLC, Plaintiff v. PALMETTO FOREST PRODUCTS, INC. and CHRISTOPHER B. RILEY, Defendants",
  "name_abbreviation": "Barloworld Fleet Leasing, LLC v. Palmetto Forest Products, Inc.",
  "decision_date": "2009-08-18",
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    "judges": [
      "Judges ELMORE and ERVIN concur."
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      "BARLOWORLD FLEET LEASING, LLC, Plaintiff v. PALMETTO FOREST PRODUCTS, INC. and CHRISTOPHER B. RILEY, Defendants"
    ],
    "opinions": [
      {
        "text": "STROUD, Judge.\nThis case presents the sole question of whether the exercise of personal jurisdiction over defendants by the courts of the State of North Carolina comports with due process. Because we conclude that it does, we affirm.\nI. Background\nOn 6 February 2003, plaintiff executed an equipment lease with defendant Palmetto Forest Products, Inc. (\u201cPalmetto\u201d). Plaintiff\u2019s address appears on the front of the lease document as 11301-C Granite Street, Charlotte, North Carolina. Palmetto\u2019s address is 667 Whitesville Road, Moncks Corner, South Carolina. Defendant Christopher Riley (\u201cRiley\u201d), signed the lease on behalf of Palmetto as president of the corporation. The lease provided that \u201cTHIS AGREEMENT SHALL BE GOVERNED BY AND SUBJECT TO THE INTERNAL LAWS OF THE STATE OF- NORTH CAROLINA, NOTWITHSTANDING CHOICE OF LAW RULES.\u201d On 30 April 2004, the parties entered into a second equipment lease containing an identical choice of law provision. All payments pursuant to the lease were made to plaintiffs agent Barloworld Handling LP, also located in Charlotte, North Carolina.\nOn or about 8 April 2008, plaintiff filed a complaint in Superior Court, Mecklenburg County, alleging defendants had failed to pay sums due under the lease agreements. On or about 24 April 2008, defendants moved to dismiss the complaint for want of personal and subject matter jurisdiction. The motion alleged that defendants had never \u201cdone business in North Carolina[,]\u201d and that \u201c[a]ll events, transactions, negotiations, circumstances and performance of the two (2) lease contracts . . . occurred in or near Charleston, South Carolina.\u201d\nThe trial court heard the motion to dismiss on 3 June 2008. The trial court found that (1) the lease agreements contained North Carolina choice of law provisions, (2) \u201c[t]he two lease agreements were consummated by Daniel Vincini\u2019s [sic] signature in Charlotte, North Carolina],] and [(3)] the contracts between the parties were made in North Carolina and were to be performed in North Carolina.\u201d Accordingly, the trial court denied defendants\u2019 motion. Defendants appeal.\nII. Standard of Review\nOn review of the denial of a motion to dismiss for want of personal jurisdiction, this Court first considers \u201cwhether the trial court\u2019s findings of fact are supported by competent record evidence.\u201d Deer Corp. v. Carter, 177 N.C. App. 314, 324, 629 S.E.2d 159, 167 (2006). If\u2019 \u201cthe trial court\u2019s findings of fact are supported by competent evidence, we must conduct a de novo review of the trial court\u2019s conclusions of law and determine whether, given the facts found by the trial court,\u201d id. at 326, 629 S.E.2d at 168, \u201cNorth Carolina statutes permit our courts to entertain this action against defendants, and, if so, whether this exercise of jurisdiction violates due process],]\u201d Saxon v. Smith, 125 N.C. App. 163, 168, 479 S.E.2d 788, 791 (1997) (citation, brackets and quotation marks omitted).\nIII. Findings of Fact\nDefendants contend that there is insufficient evidence to support any findings that the contracts entered into by plaintiff and defendants have a connection with the State of North Carolina.\nDefendants specifically argue that any of the trial court\u2019s findings based on an affidavit submitted by Daniel Vicini (\u201cthe Vicini affidavit\u201d) were erroneous because the Vicini affidavit was not competent evidence. They argue that the trial court should have stricken the Vicini affidavit because it is \u201cbased on hearsay\u201d and \u201cdoes not. .. set forth any facts that might have been known to Vicini as the result of his own personal knowledge.\u201d\nAffidavits which support a motion to dismiss for want of personal jurisdiction \u201c \u2018shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein[.]\u2019 \u201d Hankins v. Somers, 39 N.C. App. 617, 620, 251 S.E.2d 640, 642 (quoting N.C.R. App. P. 56(e), and applying the competence standard for affidavits pursuant to a summary judgment motion to a motion to dismiss for want of personal jurisdiction), disc, review denied, 297 N.C. 300, 254 S.E.2d 920 (1979). The Vicini affidavit states on its face that the affiant \u201chas personal knowledge\u201d of \u201cthe matters and things that transpired with regard to the two lease agreements involved in this lawsuit[.]\u201d Furthermore, Vicini\u2019s signature appears on both of the lease contracts. Accordingly, we conclude that Vicini\u2019s affidavit, based on his personal knowledge, was competent evidence on which the trial court could base its findings.\nThe Vicini affidavit states that \u201cthe defendants executed the lease [s] and forwarded [them] to the plaintiff in North Carolina for acceptance. [I, Daniel Vicini] accepted the lease[s] . . . which formed the contracts] between the plaintiff and defendants.\u201d The record further contains copies of the lease agreements, in which plaintiff\u2019s physical address is clearly stated as Charlotte, North Carolina. Payments pursuant to the contracts were collected by plaintiff\u2019s agent in Charlotte, North Carolina. Taken together, this competent evidence supports the trial court\u2019s finding that the contracts between the parties were made in North Carolina and were to be performed in North Carolina. This argument is overruled.\nIV. Due Process\nDefendants argue that even if all the trial court\u2019s findings are based on competent evidence, exercise of personal jurisdiction in the courts of North Carolina offends due process because defendants are South Carolina residents who never solicited business in North Carolina. The United States Supreme Court addressed a similar argument in Burger King Corp. v. Rudzewicz, 471 U.S. 462, 85 L. Ed. 2d 528 (1985), and determined that Florida\u2019s exercise of personal jurisdiction over a Michigan resident \u201cdid not offend due process],]\u201d id. at 487, 85 L. Ed. 2d at 550, even though (1) the defendant had never even visited the state of Florida, and (2) the only contact defendant had with the plaintiff during contract negotiations was with representatives of the plaintiff\u2019s Michigan office, id. at 488, 85 L. Ed. 2d at 551 (Stevens, J., dissenting) (citing the findings of the lower court). For the reasons that follow, we conclude that Burger King controls and that the trial court\u2019s exercise of personal jurisdiction sub judice did not offend due process.\nA. Minimum Contacts\nDefendants contend that they did not establish \u201cminimum contacts\u201d in North Carolina. The first step in the due process inquiry for personal jurisdiction is \u201cwhether the defendant purposefully established \u2018minimum contacts\u2019 in the forum State.\u201d Burger King, 471 U.S. at 474, 85 L. Ed. 2d at 542. Burger King stated that\n[t]he application of [the minimum contacts] rule will 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.\nId. at 474-75, 85 L. Ed. 2d at 542 (quoting Hanson v. Denckla, 357 U.S. 235, 253[, 2 L. Ed. 2d 1283, 1298] (1958)).\nIn applying the minimum contacts rule, Burger King held that \u201cwhere the defendant deliberately has . .. created continuing obligations between himself and residents of the forum, he manifestly has availed himself of the privilege of conducting business there[.]\u201d Burger King, 471 U.S. at 475-76, 85 L. Ed. 2d at 543 (internal citation and quotation marks omitted; emphasis added). A contract standing alone does not \u201cautomatically establish sufficient minimum contacts.\u201d Burger King, 471 U.S. at 478, 85 L. Ed. 2d at 545. However, where \u201c[t]he contract was delivered in [the forum state], the [payments] were mailed from [the forum state] and the [plaintiff] was a resident of [the forum state] when [his benefits vested,]\u201d the contractual relationship is sufficient to establish minimum contacts. McGee v. International Life Ins. Co., 355 U.S. 220, 223, 2 L. Ed. 2d 223, 226 (1957). Furthermore, in a close case, a contract choice of law provision designating the law of the forum State as governing the agreement weighs in favor of finding that a defendant has purposefully established minimum contacts within the forum State. Burger King, 471 U.S. at 482, 85 L. Ed. 2d at 547.\nIn Burger King, one basis for the Court\u2019s finding that sufficient minimum contacts existed was that the contract contained a Florida choice of law provision. Id. at 482, 85 L. Ed. 2d at 547. Furthermore, the evidence showed that\n[t]he contract documents themselves emphasize [d] that [plaintiff\u2019s] operations [would be] conducted and supervised from the [Florida] headquarters, that all relevant notices and payments must be sent there, and that the agreements were made in and enforced from [Florida]. Moreover, the parties\u2019 actual course of dealing repeatedly confirmed that decisionmaking authority was vested in the [Florida] headquarters ....\n471 U.S. at 480-81, 85 L. Ed. 2d at 546 (internal citation omitted).\nIn the case sub judice, the trial court found that the lease contracts between the parties were made in North Carolina and were to be performed in North Carolina. The contracts and attendant regular payments represented \u201ccontinuing obligations\u201d between defendants and a resident of North Carolina, which means that defendants \u201cavailed [themselves] of the privilege of conducting business\u201d in North Carolina. Burger King, 471 U.S. at 476, 85 L. Ed. 2d at 543; see also McGee, 355 U.S. at 223, 2 L. Ed. 2d at 226. In addition, an undisputed finding of fact states that the lease contracts included a North Carolina choice of law provision. These findings of the trial court were sufficient to support the trial court\u2019s implicit conclusion that defendants had \u201cpurposefully established minimum contacts within\u201d North Carolina. Burger King, 471 U.S. at 476, 85 L. Ed. 2d at 543.\nB. Fair Play and Substantial Justice\nDefendants also contend that the exercise of personal jurisdiction offends due process because the trial court\u2019s conclusion that \u201c[defendants have failed to present compelling evidence that the presence of other considerations ... would render jurisdiction of this matter in North Carolina unreasonable [,]\u201d incorrectly placed the burden of proof on them rather than plaintiff. Defendants further argue that \u201cthere is no unfairness or inconvenience to [plaintiff] if it is required to proceed in the State of South Carolina, rather than North, [sic] Carolina.\u201d\n\u201cOnce it has been decided that a defendant purposefully established minimum contacts within the forum State, these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with fair play and substantial justice.\u201d Burger King, 471 U.S. at 476, 85 L. Ed. 2d at 543 (citation and quotation marks omitted). The \u201cfair play\u201d factors listed in Burger King, including \u201cthe forum State\u2019s interest in adjudicating the dispute [and] the plaintiff\u2019s interest in obtaining convenient and effective relief.... sometimes serve to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required.\u201d Id. at 477, 85 L. Ed. 2d at 543-44 (citation and quotation marks omitted; emphasis added). Furthermore, \u201c[although the Court has suggested that inconvenience [to the defendant] may at some point become so substantial as to achieve constitutional magnitude,\u201d id. at 484, 85 L. Ed. 2d at 548 (citing McGee, 355 U.S. at 223, [2 L. Ed. 2d at 226], emphasis in original), \u201cwhere a defendant who purposefully has directed his activities at forum residents seeks to defeat jurisdiction, he must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable],]\u201d id. at 477, 85 L. Ed. 2d at 544 (emphasis added).\nIn Burger King the defendant, who had established minimum contacts in Florida, \u201cfailed to demonstrate how jurisdiction in that forum would otherwise be fundamentally unfair,\u201d 471 U.S. at 487, 85 L. Ed. 2d at 550, even though prosecution of the suit in Florida arguably impeded the defendant\u2019s ability to obtain witnesses in his favor, 471 U.S. at 490, 85 L. Ed. 2d at 552 (Stevens, J., dissenting) (citing the findings of the lower court). But see 471 U.S. at 483, 85 L. Ed. 2d at 548 (\u201c[T]he Court of Appeals\u2019 assertion that the Florida litigation severely impaired [defendant\u2019s] ability to call Michigan witnesses who might be essential to his defense and counterclaim is wholly without support in the record.\u201d (Citation, quotation marks and footnote omitted.)) Accordingly, Burger King held that the forum State, Florida, had personal jurisdiction over the Michigan resident defendant. 471 U.S. at 487, 85 L. Ed. 2d at 552.\nIn the case sub judice, we have already concluded that defendants purposefully directed activities at the State of North Carolina. See supra Part IV.A. Therefore, despite their contention that the trial court improperly assigned the burden of proof to them, defendants did indeed need to \u201cpresent a compelling case that the presence of some other considerations would render jurisdiction unreasonable.\u201d Burger King at 477, 85 L. Ed. 2d at 544.\nDefendants contend that jurisdiction is unreasonable because the trial court failed to give proper consideration to evidence that defendants are residents of South Carolina who \u201cdid not initiate any contact with North Carolina, and, in fact, had no knowledge of the involvement of any resident or citizen of this State.\u201d However, this is merely an argument that defendants did not have minimum contacts in North Carolina; it does not present a compelling case for why, given the presence of minimum contacts, exercise of personal jurisdiction over defendants offends \u201cfair play and substantial justice.\u201d Burger King, 471 U.S. at 476, 85 L. Ed. 2d at 543 (citations and quotation marks omitted).\nDefendants also argue that \u201cthere is no unfairness or inconvenience to [plaintiff] if it is required to proceed in the State of South Carolina, rather than North] [sic] Carolina.\u201d While \u201cthe plaintiff\u2019s interest in obtaining convenient and effective relief .... sometimes serve [s] to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required, id. at 477, 85 L. Ed. 2d at 543-44 (citation and quotation marks omitted; emphasis added), defendants cite no case, and we find none, for the proposition that a convenient location for the plaintiff other than the forum State shows that the exercise of jurisdiction over the defendant offends fair play and substantial justice. In fact, the plaintiff in Burger King made a similar argument, \u201ccontending] that Florida\u2019s interest in providing a convenient forum is negligible given the company\u2019s size and ability to conduct litigation anywhere in the country.\u201d Id. at 483, 85 L. Ed. 2d at 547 n.25. That argument was summarily dismissed in a footnote. Id.\nWe conclude that the trial court did not err when it concluded \u201c[defendants have failed to present compelling evidence that the presence of other considerations ... would render jurisdiction of this matter in North Carolina unreasonable.\u201d Accordingly, this argument is overruled.\nV. Subject Matter Jurisdiction\nDefendants assign as error the trial court\u2019s exercise of subject matter jurisdiction over this case. However, defendants cite no authority in support of this assignment of error in their brief. Accordingly, this assignment of error is deemed abandoned. N.C.R. App. P. 28(b)(6) (\u201cAssignments of error ... in support of which no reason or argument is stated or authority cited, will be taken as abandoned.\u201d).\nVI. Conclusion\nThe trial court found that the lease contracts sub judice were made in North Carolina, were to be performed in North Carolina, and the parties agreed that North Carolina law would apply. These findings of minimum contacts were sufficient, when defendant presented no compelling reason why the trial court should not exercise personal jurisdiction, to support the trial court\u2019s conclusion that North Carolina\u2019s exercise of personal jurisdiction over defendants comports with due process. Accordingly, the order of the trial court is affirmed.\nAFFIRMED.\nJudges ELMORE and ERVIN concur.\n. This legal conclusion is incorrectly labeled as a finding of fact. See Estate of Gainey v. Southern Flooring & Acoustical Co., 184 N.C. App. 497, 503, 646 S.E.2d 604, 608 (2007) (a legal conclusion mislabeled as a finding of fact is reviewed according to its substance not its label).",
        "type": "majority",
        "author": "STROUD, Judge."
      }
    ],
    "attorneys": [
      "Reginald L. Yates, for plaintiff-appellee.",
      "Law Offices of Dale S. Morrison, by Dale S. Morrison, for defendants-appellants."
    ],
    "corrections": "",
    "head_matter": "BARLOWORLD FLEET LEASING, LLC, Plaintiff v. PALMETTO FOREST PRODUCTS, INC. and CHRISTOPHER B. RILEY, Defendants\nNo. COA08-1391\n(Filed 18 August 2009)\n1. Jurisdiction\u2014 personal \u2014 findings\u2014supported by affidavit\nFindings about personal jurisdiction over a South Carolina business were supported by an affidavit about two equipment leases that was based on personal knowledge. The affidavit stated that defendants executed the leases and forwarded them to plaintiffs in North Carolina for acceptance; the leases were accepted by the affiant, which formed the contract; copies of the agreements showed plaintiff\u2019s physical address as being in North Carolina; and payments under the contracts were collected in North Carolina.\n2. Jurisdiction\u2014 personal \u2014 minimum contacts \u2014 satisfied\nThe minimum contacts requirement for personal jurisdiction in North Carolina over a South Carolina business was satisfied where equipment lease contracts were made in North Carolina and were to be performed in North Carolina, and the contracts and attendant regular payments were continuing obligations between defendants and a resident of North Carolina. Moreover, the lease contracts included a North Carolina choice of law provision.\n3. Jurisdiction\u2014 personal \u2014 South Carolina business\nNorth Carolina\u2019s exercise of personal jurisdiction over a South Carolina business did not offend due process where defendants purposefully directed their activities toward the state of North Carolina and defendants did not present a compelling case that other considerations would render jurisdiction unreasonable.\n4. Appeal and Error\u2014 assignment of error \u2014 not supported by authority \u2014 abandoned\nAn assignment of error to the exercise of subject matter jurisdiction for which no authority was cited was deemed abandoned.\nAppeal by defendants from order entered on or about 23 June 2008 by Judge David S. Cayer in Superior Court, Mecklenburg County. Heard in the Court of Appeals 22 April 2009.\nReginald L. Yates, for plaintiff-appellee.\nLaw Offices of Dale S. Morrison, by Dale S. Morrison, for defendants-appellants."
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