{ "id": 4181195, "name": "SPEEDWAY MOTORSPORTS INTERNATIONAL LTD., Plaintiff v. BRONWEN ENERGY TRADING, LTD., BRONWEN ENERGY TRADING UK, LTD., DR. PATRICK DENYEFA NDIOMU, BNP PARIBAS (SUISSE) SA, BNP PARIBAS S.A., SWIFT AVIATION GROUP, INC., SWIFT AIR, LLC, SWIFT AVIATION GROUP, LLC, AND SWIFT TRANSPORTATION CO., INC., Defendants", "name_abbreviation": "Speedway Motorsports International Ltd. v. Bronwen Energy Trading, Ltd.", "decision_date": "2011-02-15", "docket_number": "No. COA09-1451", "first_page": "474", "last_page": "491", "citations": [ { "type": "official", "cite": "209 N.C. App. 474" } ], "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": "532 U.S. 1032", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9373056, 9373152, 9373283, 9373092, 9373255, 9373194, 9373132, 9373037, 9373071, 9373232, 9373363, 9373108, 9373173, 9373334, 9373307 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/532/1032-02", "/us/532/1032-07", "/us/532/1032-12", "/us/532/1032-04", "/us/532/1032-11", "/us/532/1032-09", "/us/532/1032-06", "/us/532/1032-01", "/us/532/1032-03", "/us/532/1032-10", "/us/532/1032-15", "/us/532/1032-05", "/us/532/1032-08", "/us/532/1032-14", "/us/532/1032-13" ] }, { "cite": "667 S.E.2d 340", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642048, 12642049, 12642050, 12642051, 12642052, 12642053, 12642054, 12642055, 12642056, 12642057, 12642058, 12642059, 12642060, 12642044, 12642045, 12642046, 12642047 ], "year": 2008, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0, "case_paths": [ "/se2d/667/0340-04", "/se2d/667/0340-05", "/se2d/667/0340-06", "/se2d/667/0340-07", "/se2d/667/0340-08", "/se2d/667/0340-09", "/se2d/667/0340-11", "/se2d/667/0340-12", "/se2d/667/0340-13", "/se2d/667/0340-14", "/se2d/667/0340-15", "/se2d/667/0340-16", "/se2d/667/0340-17", "/se2d/667/0340-10", "/se2d/667/0340-01", "/se2d/667/0340-02", "/se2d/667/0340-03" ] }, { "cite": "611 S.E.2d 413", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632649 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/611/0413-01" ] }, { "cite": "359 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12632645, 3796135, 12632647, 3795913, 12632648, 12632649, 3802924, 12632652, 3794863, 3794224, 3800050, 3797202, 3794618, 3800859 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/611/0410-02", "/nc/359/0321-04", "/se2d/611/0412-01", "/nc/359/0321-08", "/se2d/611/0412-02", "/se2d/611/0413-01", "/nc/359/0321-03", "/se2d/611/0416-02", "/nc/359/0321-05", "/nc/359/0321-02", "/nc/359/0321-06", "/nc/359/0321-01", "/nc/359/0321-09", "/nc/359/0321-07" ] }, { "cite": "603 S.E.2d 890", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631961 ], "year": 2004, "pin_cites": [ { "page": "893", "parenthetical": "explaining that \"although the trial court may properly incorporate various reports into its order, it may not use these as a substitute for its own independent review\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/603/0890-01" ] }, { "cite": "166 N.C. App. 693", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12631961, 8413444 ], "year": 2004, "pin_cites": [ { "page": "698", "parenthetical": "explaining that \"although the trial court may properly incorporate various reports into its order, it may not use these as a substitute for its own independent review\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/603/0890-01", "/nc-app/166/0693-01" ] }, { "cite": "661 S.E.2d 313", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641015 ], "year": 2008, "pin_cites": [ { "page": "322", "parenthetical": "\"In this case, the trial court did not err when, while summarizing the evidence considered by the court, it incorporated the DSS and GAL reports by reference rather than specifically describing the content of those reports.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/661/0313-01" ] }, { "cite": "305 N.C. 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567834, 8568049, 8567923, 8567866, 8567966 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0298-01", "/nc/305/0298-05", "/nc/305/0298-03", "/nc/305/0298-02", "/nc/305/0298-04" ] }, { "cite": "658 S.E.2d 918", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640687 ], "weight": 4, "year": 2008, "pin_cites": [ { "page": "921" }, { "page": "922" }, { "page": "922" } ], "opinion_index": 0, "case_paths": [ "/se2d/658/0918-01" ] }, { "cite": "611 S.E.2d 179", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632622 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "183", "parenthetical": "quoting Replacements, Ltd. v. MidweSterling, 133 N.C. App. 139, 140-41, 515 S.E.2d 46, 48 (1999)" }, { "page": "183" } ], "opinion_index": 0, "case_paths": [ "/se2d/611/0179-01" ] }, { "cite": "349 S.E.2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 504", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4740610 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0504-01" ] }, { "cite": "343 S.E.2d 2", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "4" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 459", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524299 ], "pin_cites": [ { "page": "462" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0459-01" ] }, { "cite": "565 S.E.2d 705", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "711" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 158", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9079687 ], "year": 2002, "pin_cites": [ { "page": "168" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0158-01" ] }, { "cite": "428 S.E.2d 185", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 466", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2547848, 2548041, 2548241, 2548471 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0466-02", "/nc/333/0466-01", "/nc/333/0466-04", "/nc/333/0466-03" ] }, { "cite": "421 S.E.2d 816", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "820", "parenthetical": "\"The record reflects that defendants never solicited their business within North Carolina; in fact, plaintiff Tutterrow was the first to initiate any contact with defendants.\"" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 703", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527927 ], "year": 1992, "pin_cites": [ { "page": "709", "parenthetical": "\"The record reflects that defendants never solicited their business within North Carolina; in fact, plaintiff Tutterrow was the first to initiate any contact with defendants.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0703-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-75.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(4)(a)" } ], "opinion_index": 0 }, { "cite": "516 S.E.2d 647", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "649-50", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 1-75.4(4)(a)" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 110", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11143141 ], "year": 1999, "pin_cites": [ { "page": "113", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 1-75.4(4)(a)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0110-01" ] }, { "cite": "310 S.E.2d 369", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "370" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 818", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525977 ], "year": 1984, "pin_cites": [ { "page": "819" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0818-01" ] }, { "cite": "441 S.E.2d 580", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "582" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 209", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527372 ], "year": 1994, "pin_cites": [ { "page": "212" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0209-01" ] }, { "cite": "121 S. Ct. 1987", "category": "reporters:federal", "reporter": "S. Ct.", "year": 2001, "opinion_index": 0 }, { "cite": "149 L. Ed. 2d 777", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "547 S.E.2d 37", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135692, 135987, 135923, 135829, 135963 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0394-03", "/nc/353/0394-01", "/nc/353/0394-04", "/nc/353/0394-02", "/nc/353/0394-05" ] }, { "cite": "539 S.E.2d 656", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "659" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 169", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12123425 ], "year": 2000, "pin_cites": [ { "page": "172" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0169-01" ] }, { "cite": "678 S.E.2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "223", "parenthetical": "emphasis added" }, { "page": "224" } ], "opinion_index": 0 }, { "cite": "363 N.C. 360", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151028 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "363", "parenthetical": "emphasis added" }, { "page": "363-64" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0360-01" ] }, { "cite": "933 F. Supp. 507", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7651728 ], "year": 1996, "pin_cites": [ { "page": "510" } ], "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" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 703", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188534 ], "year": 2003, "pin_cites": [ { "page": "708" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0703-01" ] }, { "cite": "361 S.E.2d 902", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "906", "parenthetical": "internal quotation marks omitted" }, { "page": "905", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 570", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358727 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "577", "parenthetical": "internal quotation marks omitted" }, { "page": "576" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0570-01" ] }, { "cite": "347 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "427" } ], "opinion_index": 0 }, { "cite": "318 N.C. 259", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732310 ], "year": 1986, "pin_cites": [ { "page": "262" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0259-01" ] }, { "cite": "487 S.E.2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "opinion_index": 0 }, { "cite": "346 N.C. 275", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139332, 139561, 139662, 139612, 139645 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/346/0275-04", "/nc/346/0275-01", "/nc/346/0275-03", "/nc/346/0275-02", "/nc/346/0275-05" ] }, { "cite": "478 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "521" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 548", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11890143 ], "year": 1996, "pin_cites": [ { "page": "553" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0548-01" ] }, { "cite": "500 S.E.2d 108", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "111", "parenthetical": "quoting Bicket v. McLean Secs., Inc., 124 N.C. App. 548, 553, 478 S.E.2d 518, 521 (1996), disc. review denied, 346 N.C. 275, 487 S.E.2d 538 (1997)" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 525", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11651300 ], "year": 1998, "pin_cites": [ { "page": "528", "parenthetical": "quoting Bicket v. McLean Secs., Inc., 124 N.C. App. 548, 553, 478 S.E.2d 518, 521 (1996), disc. review denied, 346 N.C. 275, 487 S.E.2d 538 (1997)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0525-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 25-5-103", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "pin_cites": [ { "page": "(d)" } ], "opinion_index": 0 }, { "cite": "281 S.E.2d 401", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "303 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574881, 8574862, 8574895 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0550-02", "/nc/303/0550-01", "/nc/303/0550-03" ] }, { "cite": "278 S.E.2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "561" } ], "opinion_index": 0 }, { "cite": "52 N.C. App. 284", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170163 ], "pin_cites": [ { "page": "288" } ], "opinion_index": 0, "case_paths": [ "/nc-app/52/0284-01" ] }, { "cite": "2008 WL 4635387", "category": "reporters:specialty_west", "reporter": "WL", "year": 2008, "pin_cites": [ { "page": "*5", "parenthetical": "unpublished" } ], "opinion_index": 0 }, { "cite": "193 N.C. App. 454", "category": "reporters:state", "reporter": "N.C. App.", "year": 2008, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0 }, { "cite": "675 S.E.2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "opinion_index": 0 }, { "cite": "363 N.C. 254", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151500 ], "year": 2009, "opinion_index": 0, "case_paths": [ "/nc/363/0254-01" ] }, { "cite": "190 N.C. App. 679", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4157771 ], "year": 2008, "pin_cites": [ { "page": "693-94", "parenthetical": "\"In this case, the trial court did not err when, while summarizing the evidence considered by the court, it incorporated the DSS and GAL reports by reference rather than specifically describing the content of those reports.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/190/0679-01" ] }, { "cite": "290 S.E.2d 701", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "284 S.E.2d 119", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "120", "parenthetical": "enforcing as to subcontractor dispute resolution provision contained in general contractor's contract with owner because general contractor's contract with owner was incorporated by reference in subcontract" } ], "opinion_index": 0 }, { "cite": "54 N.C. App. 626", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524494 ], "year": 1981, "pin_cites": [ { "page": "628", "parenthetical": "enforcing as to subcontractor dispute resolution provision contained in general contractor's contract with owner because general contractor's contract with owner was incorporated by reference in subcontract" } ], "opinion_index": 0, "case_paths": [ "/nc-app/54/0626-01" ] }, { "cite": "362 N.C. 269", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150008 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "273" }, { "page": "273" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0269-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 25-3-105", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "240 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1978, "pin_cites": [ { "page": "363" }, { "page": "364" }, { "page": "363" } ], "opinion_index": 0 }, { "cite": "294 N.C. 146", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571110 ], "weight": 3, "year": 1978, "pin_cites": [ { "page": "152" }, { "page": "153" }, { "page": "152" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0146-01" ] }, { "cite": "568 S.E.2d 192", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 161", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511328, 1511428, 1511367, 1511258, 1511166 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0161-02", "/nc/356/0161-01", "/nc/356/0161-04", "/nc/356/0161-05", "/nc/356/0161-03" ] }, { "cite": "554 S.E.2d 863", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "866", "parenthetical": "internal citation omitted" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 262", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9379074 ], "year": 2001, "pin_cites": [ { "page": "266-67", "parenthetical": "internal citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0262-01" ] }, { "cite": "200 S.E.2d 622", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "624" } ], "opinion_index": 0 }, { "cite": "284 N.C. 407", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562175 ], "year": 1973, "pin_cites": [ { "page": "410" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0407-01" ] }, { "cite": "281 S.E.2d 651", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "303 N.C. 314", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573056, 8573033, 8573013, 8573077, 8572988 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0314-04", "/nc/303/0314-03", "/nc/303/0314-02", "/nc/303/0314-05", "/nc/303/0314-01" ] }, { "cite": "276 S.E.2d 521", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "524" }, { "page": "522" } ], "opinion_index": 0 }, { "cite": "51 N.C. App. 363", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2645780 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "367" }, { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/nc-app/51/0363-01" ] }, { "cite": "515 S.E.2d 46", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "48" } ], "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" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0139-01" ] }, { "cite": "169 N.C. App. 690", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8472795 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "694", "parenthetical": "quoting Replacements, Ltd. v. MidweSterling, 133 N.C. App. 139, 140-41, 515 S.E.2d 46, 48 (1999)" }, { "page": "694" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0690-01" ] }, { "cite": "582 S.E.2d 640", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "643-44" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 167", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8954656 ], "year": 2003, "pin_cites": [ { "page": "170" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0167-01" ] }, { "cite": "414 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "35" } ], "opinion_index": 0 }, { "cite": "331 N.C. 88", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2499908 ], "year": 1992, "pin_cites": [ { "page": "95-96" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0088-01" ] }, { "cite": "429 S.E.2d 438", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "440", "parenthetical": "quoting Johnston County v. R.N. Rouse & Co., 331 N.C. 88, 95-96, 414 S.E.2d 30, 35 (1992)" }, { "page": "441" }, { "page": "440" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 234", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525242 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "237", "parenthetical": "quoting Johnston County v. R.N. Rouse & Co., 331 N.C. 88, 95-96, 414 S.E.2d 30, 35 (1992)" }, { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0234-01" ] }, { "cite": "291 S.E.2d 141", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "146", "parenthetical": "\"[T]he right of immediate appeal of an adverse ruling as to jurisdiction over the person, under [N.C. Gen. Stat. \u00a7 l-277(b)], is limited to rulings on 'minimum contacts' questions, the subject matter of Rule 12(b)(2).\"" } ], "opinion_index": 0 }, { "cite": "305 N.C. 575", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571503 ], "year": 1982, "pin_cites": [ { "page": "581", "parenthetical": "\"[T]he right of immediate appeal of an adverse ruling as to jurisdiction over the person, under [N.C. Gen. Stat. \u00a7 l-277(b)], is limited to rulings on 'minimum contacts' questions, the subject matter of Rule 12(b)(2).\"" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0575-01" ] } ], "analysis": { "cardinality": 1473, "char_count": 44434, "ocr_confidence": 0.748, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.137373839169774 }, "sha256": "72a76f6563c120a545e46485013e78deef50eac2c7ce9228cd89cee07a037f63", "simhash": "1:908ad56110de2cd6", "word_count": 7116 }, "last_updated": "2023-07-14T17:06:47.704823+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ROBERT C. HUNTER and STEPHENS concur." ], "parties": [ "SPEEDWAY MOTORSPORTS INTERNATIONAL LTD., Plaintiff v. BRONWEN ENERGY TRADING, LTD., BRONWEN ENERGY TRADING UK, LTD., DR. PATRICK DENYEFA NDIOMU, BNP PARIBAS (SUISSE) SA, BNP PARIBAS S.A., SWIFT AVIATION GROUP, INC., SWIFT AIR, LLC, SWIFT AVIATION GROUP, LLC, AND SWIFT TRANSPORTATION CO., INC., Defendants" ], "opinions": [ { "text": "GEER, Judge.\nDefendant BNP Paribas (Suisse) SA (\u201cBNPP Suisse\u201d), a Swiss bank, appeals from an order denying its motion to dismiss the claims of Speedway Motorsports International Ltd. (\u201cSMIL\u201d) against BNPP Suisse for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Rules of Civil Procedure. In arguing that jurisdiction does exist, SMIL first contends that BNPP Suisse is bound by the North Carolina forum selection clause in SMIL\u2019s contracts with third parties because those contracts were incorporated by reference into SMIL\u2019s agreement with BNPP Suisse. We hold that the \u201cincorporation by reference\u201d clause in SMIL\u2019s agreement with BNPP Suisse cannot reasonably be construed as subjecting BNPP Suisse to the forum selection clause. Instead, the \u201cincorporation by reference\u201d clause was intended simply to identify the contracts that were the subject of the demand guarantee being issued by BNPP Suisse for SMIL.\nIn the absence of a forum selection clause, SMIL was required to establish that its claims against BNPP Suisse fell within one of the provisions of North Carolina\u2019s long-arm statute and that BNPP Suisse had sufficient minimum contacts with North Carolina. SMIL\u2019s evidence is not, however, sufficient to bring BNPP Suisse within the scope of the long-arm statute. We, therefore, reverse the trial court\u2019s order denying BNPP Suisse\u2019s motion to dismiss.\nFacts\nIn 2006, SMIL, which is \u201cin the business of petroleum products transactions,\u201d opened an account with BNPP Suisse to conduct that business. This case arises out of SMIL\u2019s use of its BNPP Suisse account in connection with a series of contracts pursuant to which SMIL agreed to guarantee lines of credit issued to finance petroleum purchases by other parties during 2007.\nIn early 2007, defendants Swift Aviation Group, Inc., Swift Air, LLC, Swift Aviation Group, LLC, and Swift Transportation Co., Inc. (collectively \u201cSwift\u201d) were attempting to negotiate a long-term supply contract with Kuwait Petroleum Corporation (\u201cKPC\u201d) pursuant to which Swift would purchase petroleum products from KPC. KPC was not, however, willing to enter into a long-term business relationship with Swift until Swift had proven its ability to successfully execute shorter-term spot contracts.\nUpon the advice of BNP Paribas S.A. (\u201cBNPP France\u201d), a French bank of which BNPP Suisse is a subsidiary, Swift engaged defendants Bronwen Energy Trading, Ltd. and Bronwen Energy Trading UK, Ltd. (collectively \u201cBronwen\u201d) to assist Swift in executing the spot contracts with KPC. SMIL, which is headquartered in Charlotte, North Carolina, agreed to provide Bronwen with the financial assistance needed to obtain letters of credit for the purchase of the oil under the spot contracts.\nOn 12 July 2007, Bronwen and SMIL entered into an agreement relating to the delivery of 80,000 metric tons of Jet A-l (\u201cthe First Oil Contract\u201d). Under the First Oil Contract, SMIL agreed to provide BNPP France with a guarantee of $12,750,000.00 to allow Bronwen to secure from BNPP France one or more letters of credit to effectuate the purchase of the Jet A-l from KPC. SMIL and Bronwen also agreed: \u201cThe funded amount guaranteed will be maintained in SMIL\u2019s account with [BNPP Suisse]. SMIL will execute such document(s) as reasonably required by [BNPP France] to effectuate the guarantee of the funded amount.\u201d The First Oil Contract further provided: \u201cAll litigation arising from or related to this agreement shall be heard exclusive [sic] in the state or federal courts sitting in Mecklenburg County, North Carolina, USA. Bronwen hereby irrevocably consents to personal jurisdiction [in] such courts.\u201d\nTo fulfill its obligations under the First Oil Contract, SMIL executed a guarantee (\u201cthe Corporate Guarantee\u201d) to BNPP France later that day. The next day, 13 July 2007, SMIL\u2019s president, William R. Brooks, also emailed the Corporate Guarantee to BNPP Suisse. BNPP France rejected as insufficient SMIL\u2019s Corporate Guarantee on 13 July 2007 and requested that SMIL instead issue instructions to BNPP Suisse to deliver a first demand guarantee to BNPP France. BNPP Suisse also emailed SMIL regarding the Corporate Guarantee and explained:\nThanks for sending your corporate guarantee, but this is not what we need.\nWhat we actually need is your formal request to us, asking us to issue subject first demand guarantee on your behalf in favour of BNPP [France].\nWe imperatively need these instructions to issue the pament [sic] guarantee on your behalf, otherwise we won\u2019t be in a position to move.\nAccordingly, later that day, 13 July 2007, SMIL sent instructions (\u201cthe First Instructions\u201d) to BNPP Suisse to issue a first demand guarantee of $11,750,000.00 in favor of BNPP France with respect to the fulfillment of the First Oil Contract. The First Instructions stated: \u201c[Bronwen] has a financing facility for principal amount of $100,000,000 USD which has been granted by [BNPP France] pursuant to an agreement dated dated [sic] 13 December 2006 (the \u2018Credit Facility\u2019). SMIL has a business relationship with [Bronwen] pursuant to a separate agreement, a true and correct copy of which is attached hereto as Exhibit A, and which is incorporated herein by reference. The Guarantee is to be issued solely with respect to any amounts drawn by [Bronwen] pursuant to the Credit Facility in [Bronwen\u2019s] fulfillment of Exhibit A. SMIL will maintain a sufficient amount in its account with [BNPP Suisse] to satisfy the Guarantee.\u201d Exhibit A was a copy of the First Oil Contract executed the day before on 12 July 2007.\nAfter SMIL sent the First Instructions to BNPP Suisse, but still on 13 July 2007, SMIL and Bronwen entered into an amended oil contract (\u201cAmended Oil Contract\u201d), which, by its terms, \u201csupersedefd]\u201d the First Oil Contract executed the previous day. The Amended Oil Contract reduced to $11,750,000.00 the amount guaranteed by SMIL to BNPP France for Bronwen\u2019s benefit. Like the First Oil Contract, it provided that the guaranteed amount would be maintained in SMIL\u2019s account with BNPP Suisse, and it again stated: \u201cAll litigation arising from or related to this agreement shall be heard exclusive [sic] in the state or federal courts sitting in Mecklenburg County, North Carolina, USA. Bronwen hereby irrevocably consents to personal jurisdiction [in] such courts.\u201d\nThree days later, on 16 July 2007, BNPP Suisse acknowledged receipt of the First Instructions, but it informed SMIL that it \u201cneed[ed] a request with the actual wording of the guarantee\u201d BNPP Suisse was to issue to BNPP France, as opposed to the more general wording of the First Instructions. BNPP Suisse included a draft of a first demand guarantee for SMIL\u2019s review. In addition to referencing the purchase by Bronwen of 80,000 metric tons of Jet A-l, as governed by the First Oil Contract and the Amended Oil Contract, the draft also referred to a purchase of 60,000 metric tons of Gasoil from KPC. The last line of the first demand guarantee stated: \u201cThis guarantee is subject to Swiss Law, place of jurisdiction is Geneva.\u201d\nLater that day, SMIL emailed BNPP Suisse a revised version of the first demand guarantee. The revised version was substantially similar to BNPP Suisse\u2019s draft. It confirmed that SMIL agreed to be responsible for Bronwen\u2019s repayment of the $11,750,000.00 credit issued to KPC, pursuant to the Amended Oil Contract, and it included the Geneva forum selection clause. It deleted the reference to the 60,000 metric tons of Gasoil that was not part of the Amended Oil Contract. SMIL\u2019s president, Mr. Brooks, signed the document after adding the following sentence: \u201cAll claims are to be sent to my attention at [Mr. Brooks\u2019 email address], and by fax to [a Charlotte, North Carolina fax number].\u201d SMIL also noted in its email attaching the revised \u201cguarantee form\u201d that it had also attached \u201ca superseding agreement [the Amended Oil Contract] between [SMIL] and [Bronwen] that is to be used in substitution for the Exhibit A [SMIL] originally sent to [BNPP Suisse].\u201d\nOn appeal, the parties do not agree on the purpose or effect of the 16 July 2007 draft first demand guarantee sent by SMIL to BNPP Suisse. BNPP Suisse refers to the document as an actual guarantee by SMIL in favor of BNPP Suisse. SMIL insists that this draft of the first demand guarantee was merely an \u201cApproval Document\u201d that was approving the form of the first demand guarantee BNPP Suisse was going to send to BNPP France. SMIL contends that this Approval Document, which contained the Geneva forum selection clause, was not intended to supersede the First Instructions, which \u2014 SMIL argues \u2014had the effect of incorporating by reference the North Carolina forum selection clause contained in the Bronwen contracts. In SMIL\u2019s complaint, however, SMIL referred to the 16 July 2007 document as a \u201csupplemental guarantee.\u201d\nMeanwhile, also on 16 July 2007 (but apparently before BNPP Suisse received SMIL\u2019s response with the revised version of the first demand guarantee), BNPP Suisse went ahead and issued a first demand guarantee to BNPP France by which BNPP Suisse promised that it would be responsible for Bronwen\u2019s repayment of the letters of credit to BNPP France. The first demand guarantee referenced both the 80,000 metric tons of Jet A-l and the 60,000 metric tons of Gasoil, and it contained the Geneva forum selection clause.\nSubsequently, on 19 July 2007, Bronwen and SMIL entered into a second oil contract (\u201cthe Second Oil Contract\u201d). Under the Second Oil Contract, SMIL agreed to provide a first demand guarantee to BNPP France for an additional $4,000,000.00 to allow Bronwen to secure letters of credit to effectuate the purchase of 68,000 metric tons of Gasoil. Like the First and Amended Oil Contracts, it provided that the guaranteed amount would be maintained in SMIL\u2019s account with BNPP Suisse, and it stated: \u201cAll litigation arising from or related to this agreement shall be heard exclusively in the state or federal courts sitting in Mecklenburg County, North Carolina, USA. Bronwen hereby irrevocably consents to personal jurisdiction in such courts.\u201d\nOn 23 July 2007, pursuant to the Second Oil Contract, SMIL sent BNPP Suisse new instructions (\u201cthe Second Instructions\u201d) directing BNPP Suisse to increase the amount of the first demand guarantee in favor of BNPP France by $4,000,000.00, bringing the total amount to $15,750,000.00. The Second Instructions stated: \u201cSMIL has new business with [Bronwen] pursuant to a separate agreement [the Second Oil Contract], a true and correct copy of which is attached hereto as Exhibit A, and which is incorporated herein by reference. The additional $4,000,000 of the Guarantee is to be issued solely with respect to any amounts drawn by [Bronwen] pursuant to the Credit Facility in [Bronwen\u2019s] fulfillment of Exhibit A.\u201d\nApproximately two weeks later, on 7 September 2007, Bronwen and SMIL entered into yet another contract (\u201cthe Third Oil Contract\u201d). Under the Third Oil Contract, SMIL agreed to provide a first demand guarantee to BNPP France in the amount of $12,000,000.00 to allow Bronwen to secure letters of credit to effectuate the purchase of three shipments of 65,000 metric tons of Gasoil each. Like the previous Oil Contracts, the Third Oil Contract provided that the guaranteed amount would be maintained in SMIL\u2019s account with BNPP Suisse, and it stated: \u201cAll litigation arising from or related to this agreement shall be heard exclusively in the state or federal courts sitting in Mecklenburg County, North Carolina, USA. Bronwen hereby irrevocably consents to personal jurisdiction in such courts.\u201d\nThe same day, SMIL sent BNPP Suisse instructions (\u201cthe Third Instructions\u201d) directing BNPP Suisse to reduce the amount of the first demand guarantee to $12,000,000.00. The Third Instructions stated: \u201cSMIL has new business with [Bronwen] pursuant to a separate agreement [the Third Oil Contract], a true and correct copy of which is attached hereto as Exhibit A, and which is incorporated herein by reference. The $12,000,000 Guarantee is to be issued solely with respect to any amounts drawn by [Bronwen] pursuant to the Credit Facility in [Bronwen\u2019s] fulfillment of Exhibit A.\u201d\nA week later, on 14 September 2007, SMIL sent BNPP Suisse \u201cupdated\u201d instructions (\u201cthe Fourth Instructions\u201d). The Fourth Instructions reiterated the $12,000,000.00 amount of the first demand guarantee and stated: \u201cThis Guarantee will cover all current business SMIL has with [Bronwen] pursuant to separate agreements [the Amended, Second, and Third Oil Contracts], true and correct copies of which are attached hereto as Exhibit A, and which are incorporated herein by reference. The $12,000,000 Guarantee is to be issued solely with respect to any amounts drawn by [Bronwen] pursuant to the Credit Facility in [Bronwen\u2019s] fulfillment of the contracts attached as Exhibit A.\u201d\nIn early November 2007, BNPP France determined that losses related to the Oil Contracts exceeded $17,000,000.00. BNPP France notified Bronwen and SMIL that BNPP France believed it had a right to draw on SMIL\u2019s account to cover its losses. SMIL disputed this claim, reminding BNPP France that the first demand guarantee only covered letters of credit issued to effectuate purchase of oil under the Oil Contracts and insisting that Bronwen\u2019s debt was not related to the purchase price of oil under the pertinent Oil Contracts. Because BNPP France nonetheless maintained that it had a right to draw on the first demand guarantee, SMIL announced on 6 November 2007 that it was terminating the first demand guarantee. The next day, however, BNPP Suisse notified SMIL that it had received a demand from BNPP France. Despite SMIL\u2019s protest, BNPP Suisse paid BNPP France $12,000,000.00 on 9 November 2007 and immediately debited SMIL\u2019s account for that amount.\nSMIL filed a complaint on 22 April 2008, an amended complaint on 29 May 2008, and a second amended complaint on 25 September 2008, asserting claims for, inter alia, breach of contract ag\u00e1inst Bronwen and Swift; wrongful honor against BNPP Suisse; fraud and negligent misrepresentation against BNPP France; breach of demand guarantee and conversion against BNPP Suisse and BNPP France; equitable subrogation to BNPP France\u2019s claims against Bronwen and Swift; and unfair and deceptive trade practices against all defendants. SMIL also asserted that it was entitled to an accounting from all defendants. With respect to personal jurisdiction, SMIL alleged that Bronwen, Swift, BNPP France, and BNPP Suisse had all \u201cagreed in their contracts with SMIL to the jurisdiction of this [North Carolina] Court to resolve all disputes.\u201d\nOn 4 August 2008, BNPP Suisse moved to dismiss SMIL\u2019s claims against BNPP Suisse for lack of personal jurisdiction pursuant to Rule 12(b)(2). The Business Court denied BNPP Suisse\u2019s motion in an order entered 14 July 2009. The court\u2019s order contained no findings of fact, stating only: \u201cAfter considering the Court file, the written Motion, the briefs of the parties, and the arguments of counsel, the Court DENIES the Motion.\u201d BNPP Suisse timely appealed from the order to this Court.\nDiscussion\nOn appeal, BNPP Suisse contends that the trial court erred in denying its motion to dismiss for lack of personal jurisdiction. Although the order denying the motion to dismiss is an interlocutory order, BNPP Suisse\u2019s appeal of the trial court\u2019s Rule 12(b)(2) decision is proper under N.C. Gen. Stat. \u00a7 l-277(b) (2009). See Love v. Moore, 305 N.C. 575, 581, 291 S.E.2d 141, 146 (1982) (\u201c[T]he right of immediate appeal of an adverse ruling as to jurisdiction over the person, under [N.C. Gen. Stat. \u00a7 l-277(b)], is limited to rulings on \u2018minimum contacts\u2019 questions, the subject matter of Rule 12(b)(2).\u201d).\n\u201cGenerally, determining whether a court can exercise personal jurisdiction over a nonresident defendant necessitates the implementation of a two-step inquiry: (1) Does a North Carolina statute authorize the court to entertain an action against that defendant; and (2) If so, does the defendant have sufficient minimum contacts with the state so that considering the action does not conflict with \u2018traditional notions of fair play and substantial justice.\u2019 \u201d Montgomery v. Montgomery, 110 N.C. App. 234, 237, 429 S.E.2d 438, 440 (1993) (quoting Johnston County v. R.N. Rouse & Co., 331 N.C. 88, 95-96, 414 S.E.2d 30, 35 (1992)). The burden is on the plaintiff to establish that some ground exists for the exercise of personal jurisdiction over the defendant. Jaeger v. Applied Analytical Indus. Deutschland GMBH, 159 N.C. App. 167, 170, 582 S.E.2d 640, 643-44 (2003).\n\u201cWhen this Court reviews a decision as to personal jurisdiction, it considers only \u2018whether 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 Banc of Am. Secs. LLC v. Evergreen Int\u2019l Aviation, Inc., 169 N.C. App. 690, 694, 611 S.E.2d 179, 183 (2005) (quoting Replacements, Ltd. v. MidweSterling, 133 N.C. App. 139, 140-41, 515 S.E.2d 46, 48 (1999)). Under Rule 52(a)(2) of the Rules of Civil Procedure, the trial court is not, however, required to make specific findings of fact unless requested by a party. Banc of Am. Secs., 169 N.C. App. at 694, 611 S.E.2d at 183. When, as in this case, the order contains no findings of fact, \u201c \u2018 [i]t is presumed ... that the court on proper evidence found facts to support its judgment.\u2019 \u201d Id. (quoting Fungaroli v. Fungaroli, 51 N.C. App. 363, 367, 276 S.E.2d 521, 524, disc. review denied, 303 N.C. 314, 281 S.E.2d 651 (1981)).\nI\nSMIL first contends that the trial court\u2019s decision denying BNPP Suisse\u2019s motion to dismiss may be upheld on the grounds that BNPP Suisse consented to personal jurisdiction in North Carolina. As this Court has recognized, \u201c[o]ne means by which a party may consent to personal jurisdiction, encountered most often in the commercial context, is a forum selection provision in a contractual agreement.\u201d Montgomery, 110 N.C. App. at 238, 429 S.E.2d at 441. When a party has consented to jurisdiction through a forum selection clause, the courts need not consider the applicability of the State\u2019s long-arm statute or whether minimum contacts exist. Id. at 237, 429 S.E.2d at 440.\nIn support of its contention that BNPP Suisse agreed to jurisdiction in North Carolina, SMIL points to the Instructions it sent to BNPP Suisse that both SMIL and BNPP Suisse agree are part of their contractual relationship. The Fourth Instructions \u2014 which, on 7 November 2007, SMIL described as the \u201ccurrently operative\u201d Instructions \u2014 state: \u201cThis Guarantee will cover all current business SMIL has with [Bronwen] pursuant to separate agreements, true and correct copies of which are attached hereto as Exhibit A, and which are incorporated herein by reference.\u201d (Emphasis added.) SMIL argues that the Instructions\u2019 incorporation by reference of the Oil Contracts, each of which contained a North Carolina forum selection clause, effectively incorporated into the Instructions that forum selection clause, resulting in an agreement by BNPP Suisse to litigate \u201cin the state or federal courts sitting in Mecklenburg County, North Carolina.\u201d BNPP Suisse, on the other hand, contends that the incorporation by reference clause was included in the Instructions \u201csolely to identify the specific transactions covered by the Demand Guarantee.\u201d\nIt is well established that \u201c[w]hen a contract is in writing and free from any ambiguity which would require resort to extrinsic evidence, or the consideration of disputed fact, the intention of the parties is a question of law.\u201d Lane v. Scarborough, 284 N.C. 407, 410, 200 S.E.2d 622, 624 (1973). \u201cIf the contract is ambiguous, however, interpretation is a question of fact, and resort to extrinsic evidence is necessary.\u201d Crider v. Jones Island Club, Inc., 147 N.C. App. 262, 266-67, 554 S.E.2d 863, 866 (2001) (internal citation omitted), cert. denied, 356 N.C. 161, 568 S.E.2d 192 (2002).\nSMIL relies on Booker v. Everhart, 294 N.C. 146, 152, 240 S.E.2d 360, 363 (1978), in which our Supreme Court held that \u201c[t]o incorporate a separate document by reference is to declare that the former document shall be taken as part of the document in which the declaration is made, as much as if it were set out at length therein.\u201d SMIL points to the fact that, in Booker, the Court held that a promissory note was not a negotiable instrument because it incorporated by reference the terms of a deed of separation and property settlement and, thereby, \u201cthe parties made the note \u2018subject to\u2019 any and all possible conditions contained in those prior documents.\u201d Id. SMIL contends that, in this case, the Instructions\u2019 incorporation by reference of the Oil Contracts should, therefore, have made BNPP Suisse subject to the forum selection clause in the Oil Contracts.\nSMIL has, however, overlooked the fact that the promissory note in Booker expressly incorporated \u201cthe terms\u201d of the underlying agreements. The Supreme Court, which was applying N.C. Gen. Stat. \u00a7 25-3-105, stressed: \u201c[I]t is clear that mere reference in a note to the separate agreement or document out of which the note arises does not affect the negotiability of the note. But to go beyond a reference to the separate agreement, by incorporating the terms of that agreement into the note, makes the note \u2018subject to or governed by\u2019 that agreement, and thus, under G.S. 25-3-105(2)(a), renders the promise conditional and the note nonnegotiable.\u201d Booker, 294 N.C. at 153, 240 S.E.2d at 364.\nMore recently, in Schenkel & Shultz, Inc. v. Hermon F. Fox & Assocs., 362 N.C. 269, 658 S.E.2d 918 (2008), our Supreme Court applied Booker\u2019s principles regarding incorporation by reference in addressing whether a party was bound by an indemnification provision. While the prime contract with respect to a construction project included an indemnification provision, the subprime agreement did not. As the Court noted, however, \u201c [tjhe Subprime Agreement at issue . . . incorporate[d] by reference terms of the Prime Agreement.\u201d Schenkel & Shultz, 362 N.C. at 273, 658 S.E.2d at 921. After quoting Booker\u2019s principle that incorporating a document by reference makes it part of the subsequent document \u201c \u2018as much as if it were set out at length therein,\u2019 \u201d Schenkel & Shultz, 362 N.C. at 273, 658 S.E.2d at 922 (quoting Booker, 294 N.C. at 152, 240 S.E.2d at 363), the Supreme Court nonetheless concluded, given the precise language, that an ambiguity still arose regarding \u201cthe intended scope of the reference in the Subprime Agreement to the Prime Agreement\u201d and \u201c[w]hether or not the parties intended to incorporate the express indemnification provision of the Prime Agreement\u201d when incorporating the Prime Agreement into the Subprime Agreement. Id. at 275, 658 S.E.2d at 922.\nIn sum, Booker provides that if a document incorporates a second document by reference, it effectively makes that second document part of the first without taking the time and space to set out the second document word for word. As Schenkel & Shultz demonstrates, however, a question still remains as to what the parties intended when they incorporated the second document.\nBinding the parties to a provision in the incorporated document is only one possible result, as in Elec-Trol, Inc. v. C. J. Kern Contractors, Inc., 54 N.C. App. 626, 628, 284 S.E.2d 119, 120 (1981) (enforcing as to subcontractor dispute resolution provision contained in general contractor\u2019s contract with owner because general contractor\u2019s contract with owner was incorporated by reference in subcontract), disc. review denied, 305 N.C. 298, 290 S.E.2d 701 (1982). For example, when a trial court incorporates by reference another document into an order, the intent of the trial court will not necessarily be to adopt all the contents of that document as binding. Rather, it may simply be using incorporation by reference to avoid having to summarize the contents of a piece of evidence on which it was relying when making its findings. See, e.g., In re A.S., 190 N.C. App. 679, 693-94, 661 S.E.2d 313, 322 (2008) (\u201cIn this case, the trial court did not err when, while summarizing the evidence considered by the court, it incorporated the DSS and GAL reports by reference rather than specifically describing the content of those reports.\u201d), aff\u2019d per curiam, 363 N.C. 254, 675 S.E.2d 361 (2009); In re M.R.D.C., 166 N.C. App. 693, 698, 603 S.E.2d 890, 893 (2004) (explaining that \u201calthough the trial court may properly incorporate various reports into its order, it may not use these as a substitute for its own independent review\u201d), disc. review denied, 359 N.C. 321, 611 S.E.2d 413 (2005); In re A.E., 193 N.C. App. 454, 667 S.E.2d 340, 2008 WL 4635387, *5, 2008 N.C. App. LEXIS 1823, *13 (Oct. 21, 2008) (unpublished) (\u201cThe trial court\u2019s incorporation of [the doctor\u2019s] report served the same purpose as if the court had summarized the contents of that report in order to describe the evidence before it \u2014 much like an order\u2019s summarizing what a witness testified.\u201d).\nWe do not believe that SMIL\u2019s interpretation of the \u201cincorporation by reference\u201d of the Oil Contracts is reasonable. In contrast to Booker and other decisions cited by SMIL, the Instructions do not incorporate the \u201cterms\u201d of the Oil Contracts, but rather the Instructions refer to the Oil Contracts as \u201cseparate agreements\u201d that are generally incorporated: \u201cThis Guarantee will cover all current business SMIL has with [Bronwen] pursuant to separate agreements, true and correct copies of which are attached hereto as Exhibit A, and which are incorporated herein by reference.\u201d\nThis reference to \u201cseparate agreements\u201d is consistent with the \u201cindependence principle,\u201d which is a fundamental aspect of letter of credit transactions such as this one: \u201cIt is emphasized by all the sources we have found that the basic aspect of the successful use of letters of credit lies in recognizing at the threshold that every letter of credit involves separate and distinct contracts; and that the contract between the issuing bank and the beneficiary to pay money to the beneficiary upon demand (and documentation if called for) must be kept chaste [and] independent of the underlying contract between the purchaser of the letter and the beneficiary.\u201d Sunset Invs., Ltd. v. Sargent, 52 N.C. App. 284, 288, 278 S.E.2d 558, 561 (emphasis added), disc. review denied, 303 N.C. 550, 281 S.E.2d 401 (1981). See also N.C. Gen. Stat. \u00a7 25-5-103(d) (2009) (\u201cRights and obligations of an issuer to a beneficiary or a nominated person under a letter of credit are independent of the existence, performance, or nonperformance of a contract or arrangement out of which the letter of credit arises or which underlies it, including contracts or arrangements between the issuer and the applicant and between the applicant and the beneficiary.\u201d).\nSMIL\u2019s proposed construction of the incorporation by reference language as making the terms of the underlying Oil Contracts binding on BNPP Suisse is not .consistent with the Instructions\u2019 characterization of those contracts as \u201cseparate agreements.\u201d Nor is it consistent with the fundamental independence principle governing letter of credit transactions. Moreover, we cannot see how the terms of the Oil Contracts apart from the forum selection clause could be applicable to the relationship between SMIL and BNPP Suisse \u2014 yet, SMIL\u2019s proposed construction would nonetheless make those terms part of the contract between SMIL and BNPP Suisse.\nInstead, the plain language of the Instructions indicates that the purpose of the incorporation by reference of the Oil Contracts is to specifically identify what contracts were being guaranteed by SMIL without having to set out the details of those contracts. This construction is supported by the sentence immediately following the incorporation by reference, which states: \u201cThe $12,000,000 Guarantee is to be issued solely with respect to any amounts drawn by [Bronwen] pursuant to the Credit Facility in [Bronwen\u2019s] fulfillment of the contracts attached as Exhibit A.\u201d\nWe do not believe that the Instructions can be reasonably construed to make the forum selection clause in the underlying contracts binding on BNPP Suisse. Consequently, we cannot conclude that the \u201c \u2018language of [the] contract is fairly and reasonably susceptible to ... the construction^ asserted by\u2019 \u201d SMIL. Barrett Kays & Assocs. v. Colonial Bldg. Co., Inc. of Raleigh, 129 N.C. App. 525, 528, 500 S.E.2d 108, 111 (1998) (quoting Bicket v. McLean Secs., Inc., 124 N.C. App. 548, 553, 478 S.E.2d 518, 521 (1996), disc. review denied, 346 N.C. 275, 487 S.E.2d 538 (1997)). The Instructions are, therefore, not ambiguous and must be enforced in accordance with their plain language. Id.\nEven if we could find the language ambiguous, SMIL has overlooked \u201c[o]ne of the most fundamental principles of contract interpretation\u201d \u2014 that \u201cambiguities are to be construed against the party who prepared the writing.\u201d Chavis v. Southern Life Ins. Co., 318 N.C. 259, 262, 347 S.E.2d 425, 427 (1986). This Court has stressed that \u201c[b]efore this rule of construction should be applied, the record should affirmatively show that the form of expression in words was actually chosen by one [party] rather than by the other.\u201d Joyner v. Adams, 87 N.C. App. 570, 577, 361 S.E.2d 902, 906 (1987) (internal quotation marks omitted) (holding that rule did not apply when record showed that sophisticated parties engaged in protracted negotiation process in which language was assented to by both parties who each had knowledge to understand language and bargaining power to alter it).\nHere, SMIL was responsible for the language of the Instructions. BNPP Suisse did not participate in any negotiations regarding the specific language used in the Instructions \u2014 SMIL chose the incorporation by reference language on its own. Accordingly, under Joyner, any ambiguity regarding the intent of the incorporation by reference clause \u2014 including whether it was intended to make the choice of forum clause binding on BNPP Suisse \u2014 must be construed against SMIL and in favor of BNPP Suisse. Consequently, the Instructions must be read as simply referring to the Oil Contracts rather than adopting as binding all the terms \u2014 including the North Carolina forum selection clause \u2014 contained therein. Thus, the trial court could not have properly concluded, as a basis for its denial of the motion to dismiss, that BNPP Suisse had consented to personal jurisdiction in North Carolina.\nII\nHaving determined that the evidence fails to support any finding that BNPP Suisse consented to personal jurisdiction, we turn to the question whether the evidence would permit a finding that personal jurisdiction over BNPP Suisse exists under North Carolina\u2019s long-arm statute and that BNPP Suisse has sufficient minimum contacts with North Carolina to satisfy the requirements of due process. At the outset of this analysis, we must address SMIL\u2019s assertion that \u201c[although case law is mixed on this point, the weight of authority suggests that it is not necessary to separately evaluate whether jurisdiction is authorized by the long-arm statute[.]\u201d\nSMIL is correct in noting that this Court has previously generally described the long-arm statute analysis as collapsing into the minimum contacts analysis. See, e.g., Lang v. Lang, 157 N.C. App. 703, 708, 579 S.E.2d 919, 922 (2003) (\u201c \u2018Since 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.\u2019 \u201d (quoting Regent Lighting Corp. v. Galaxy Elec. Mfg., Inc., 933 F. Supp. 507, 510 (M.D.N.C. 1996))).\nMore recently, however, our Supreme Court has emphasized that deciding a motion to dismiss based on Rule 12(b)(2) involves two separate steps of analysis: \u201cTo ascertain whether North Carolina may assert personal jurisdiction over a nonresident defendant, we employ a two-step analysis. Jurisdiction over the action must first be authorized by N.C.G.S. \u00a7 1-75.4. Second, if the long-arm statute permits consideration of the action, exercise of jurisdiction must not violate the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.\u201d Brown v. Ellis, 363 N.C. 360, 363, 678 S.E.2d 222, 223 (2009) (emphasis added) (internal citations and quotation marks omitted). We \u201care bound to follow\u201d the framework laid out by the Supreme Court and, accordingly, we apply the two-step analysis. State v. Parker, 140 N.C. App. 169, 172, 539 S.E.2d 656, 659 (2000), appeal dismissed and disc. review denied, 353 N.C. 394, 547 S.E.2d 37, cert. denied, 532 U.S. 1032, 149 L. Ed. 2d 777, 121 S. Ct. 1987 (2001).\nWith respect to the long-arm statute, we are mindful that its provisions \u201cshould be liberally construed in favor of finding personal jurisdiction.\u201d Fungaroli, 51 N.C. App. at 365, 276 S.E.2d at 522. \u201c[I]f the evidence supports a finding which comports with one of the [statute\u2019s] provisions, jurisdiction will follow under the long-arm statute.\u201d Dataflow Cos. v. Hutto, 114 N.C. App. 209, 212, 441 S.E.2d 580, 582 (1994). If, however, \u201cthere is no evidence to support an essential finding of fact,\u201d no jurisdiction exists. Spivey v. Porter, 65 N.C. App. 818, 819, 310 S.E.2d 369, 370 (1984).\nThe only statutory basis for jurisdiction asserted by SMIL is N.C. Gen. Stat. \u00a7 l-75.4(4)(a) (2009), which provides for personal jurisdiction when the plaintiff claims an injury \u201cwithin this State arising out of an act or omission outside this State by the defendant, provided in addition that at or about the time of the injury . . . [solicitation or services activities were carried on within this State by or on behalf of the defendant[.]\u201d In order for N.C. Gen. Stat. \u00a7 l-75.4(4)(a) to apply, a plaintiff \u201cmust establish: 1) an action claiming injury to a North Carolina person or property; 2) that the alleged injury arose from activities by the defendant outside of North Carolina; and 3) that the defendant was engaging in solicitation or services within North Carolina \u2018at or about the time of the injury.\u2019 \u201d Fran\u2019s Pecans, Inc. v. Greene, 134 N.C. App. 110, 113, 516 S.E.2d 647, 649-50 (1999) (quoting N.C. Gen. Stat. \u00a7 1-75.4(4)(a)). SMIL argues that \u00a7 l-75.4(4)(a) applies \u201cbecause there is a foreign act causing a local injury to SMIL (which is headquartered in Charlotte) and [BNPP] Suisse was conducting solicitation activities, namely [1] soliciting the instructions from SMIL and [2] advertising at the Davis Cup tournaments in Winston-Salem.\u201d\nThe key question here is whether, as a matter of law, the evidence of BNPP Suisse\u2019s conduct constitutes \u201csolicitation\u201d under \u00a7 l-75.4(4)(a). The evidence in the record shows that SMIL opened an account with BNPP Suisse in 2006 to facilitate its business of engaging in petroleum products transactions. With respect to the series of transactions at issue, Mr. Brooks\u2019 affidavit reveals that he personally emailed a copy of the Corporate Guarantee to BNPP Suisse first. Only after receiving the Corporate Guarantee from SMIL did BNPP Suisse contact SMIL to relay the request that SMIL should instead issue instructions to BNPP Suisse that would govern a guarantee to be issued by BNPP Suisse to BNPP France, as required by BNPP France. SMIL fails to explain how BNPP Suisse\u2019s response to an email from an existing customer to effectuate a business transaction between the customer and a third party, BNPP France, amounts to solicitation of SMIL\u2019s business.\nMoreover, although SMIL alleged that it would not have issued the Instructions \u201cbut for [BNPP Suisse\u2019s] solicitation,\u201d the evidence shows that the request for instructions originated from BNPP France as the precondition for BNPP France\u2019s financing of the Bronwen contracts. Under the Oil Contracts, SMIL was obligated to maintain \u201c[t]he funded amount guaranteed ... in SMIL\u2019s account with [BNPP Suisse]\u201d and to \u201cexecute such document(s) as reasonably required by [BNPP France] to effectuate the guarantee of the funded amount.\u201d Thus, contrary to the contentions on appeal, SMIL\u2019s transaction with BNPP Suisse was the result not of any solicitation by BNPP Suisse, but rather was the consequence of provisions in the Oil Contracts. The evidence does not, therefore, support any contention that the request for instructions constituted a solicitation in North Carolina by BNPP Suisse at or near the time of SMIL\u2019s injury.\nSMIL points to Brown, 363 N.C. at 363-64, 678 S.E.2d at 224, in which the Supreme Court held that the plaintiff, who claimed alienation of affection, had alleged facts sufficient to authorize the exercise of personal jurisdiction over the nonresident defendant pursuant to N.C. Gen. Stat. \u00a7 l-75.4(4)(a) when the plaintiff\u2019s complaint alleged that the defendant \u201c \u2018initiat[ed]\u2019 \u201d the calls and emails at issue. Here, however, SMIL cites to no evidence showing BNPP Suisse ever initiated any business relationship or transaction with SMIL. See Tutterrow v. Leach, 107 N.C. App. 703, 709, 421 S.E.2d 816, 820 (1992) (\u201cThe record reflects that defendants never solicited their business within North Carolina; in fact, plaintiff Tutterrow was the first to initiate any contact with defendants.\u201d), appeal dismissed, 333 N.C. 466, 428 S.E.2d 185 (1993).\nNext, as to the alleged advertising by BNPP Suisse, SMIL has failed to cite to evidence showing such advertising is attributable to any company aside from BNPP Suisse\u2019s parent company, BNPP France. There is no question that BNPP France sponsored the Davis Cup, an international tennis competition. The record provides abundant evidence of BNPP France\u2019s advertising in 2007 and 2008 at Davis Cup quarterfinal matches in Winston-Salem, North Carolina, including photographs of the BNP Paribas logo on structures at the events and copies of Davis Cup programs containing the logo. There is no evidence, however, that BNPP Suisse, an entirely separate corporate entity, sponsored anything in Winston-Salem.\nSMIL argues that BNPP Suisse, as part of the BNP Paribas \u201cgroup,\u201d should be subject to North Carolina jurisdiction because BNPP Suisse benefitted from the advertising at the Davis Cup. According to Mr. Brooks\u2019 affidavit, in Davis Cup programs, \u201cthe name \u2018BNP Paribas\u2019 is not targeted t\u00f3 a specific entity. Rather, it appears to apply to all entities within the larger overall BNP Paribas corporate group, including\u201d BNPP Suisse. (Emphasis added.) SMIL also emphasizes on appeal that the BNP Paribas logo \u201cfeatures the most prominent part of [BNPP Suisse\u2019s] name.\u201d Yet SMIL cites no authority that would subject a subsidiary called \u201cBNP Paribas (Suisse)\u201d to personal jurisdiction in this State simply because a parent company called \u201cBNP Paribas\u201d advertised here using its own name, simply on the grounds that the names are similar.\nMr. Brooks\u2019 affidavit also directs the reader to a \u201cSponsoring\u201d tab on the BNPP Suisse website. Clicking on that tab redirects the Internet user to the BNPP France website\u2019s tennis page. If the Internet user then clicks on the Davis Cup link on that BNPP France page, he or she is then taken to information about the Davis Cup and the fact that \u201cBNP Paribas is the \u2018Official Sponsor of the Davis Cup\u2019 as well as the \u2018title sponsor.\u2019 \u201d Mr. Brooks\u2019 repeated identification of the Davis Cup page on the BNPP France website as \u201c[t]he [BNPP] Suisse Davis Cup Page\u201d is an unsupported stretch. The mere fact\u2014 and SMIL offers nothing more \u2014 that an Internet user clicking on a series of links starting at the BNPP Suisse page eventually ends up at the BNPP France page regarding BNPP France\u2019s sponsorship of the Davis Cup, which happened to hold matches in Winston-Salem, does not establish that BNPP Suisse engaged in advertising in North Carolina.\nWe cannot impute the actions of BNPP France to BNPP Suisse for purposes of personal jurisdiction without proof that the banks are part of the same whole and were not acting independently. In Wyatt v. Walt Disney World Co., 151 N.C. App. 158, 168, 565 S.E.2d 705, 711 (2002), the plaintiffs similarly \u201cassert[ed] a general relationship among various commercial enterprises with some connection to WDWCO [the defendant Walt Disney World Company], ... In effect, plaintiffs invite[d] this Court to treat the entire \u2018Disney empire,\u2019 and all who profit from the existence of WDWCO, as one entity for purposes of personal jurisdiction.\u201d This Court rejected that invitation, explaining that the Court \u201cmay not do so absent proof that the businesses are parts of the same whole.\u201d Id. See also Ash v. Burnham, Corp., 80 N.C. App. 459, 462, 343 S.E.2d 2, 4 (\u201cThere is no evidence that [defendant] and the subsidiary are not separate and independent, and we thus determine that the subsidiary\u2019s presence in this state is not to be considered as a basis for asserting jurisdiction over [defendant].\u201d), aff\u2019d per curiam, 318 N.C. 504, 349 S.E.2d 579 (1986).\nBecause SMIL has not made the showing required by Wyatt and Ash that would support treating BNPP France and BNPP Suisse collectively for purposes of the long-arm statute, we conclude that none of the evidence cited by SMIL constitutes solicitation for purposes of bringing BNPP Suisse within N.C. Gen. Stat. \u00a7 l-75.4(4)(a). Since SMIL has failed to establish a basis under the long-arm statute for North Carolina\u2019s courts asserting jurisdiction over BNPP Suisse, we need not address whether exercising jurisdiction over BNPP Suisse would satisfy the requirements of due process under the Fourteenth Amendment. We hold that the trial court erred in concluding that it has personal jurisdiction over BNPP Suisse and, therefore, reverse.\nReversed.\nJudges ROBERT C. HUNTER and STEPHENS concur.\n. This Court explained that \u201c[t]he rule is essentially one of legal effect, of construction rather than interpretation, since it can scarcely be said to be designed to ascertain the meanings attached by the parties.\u201d Joyner, 87 N.C. App. at 576, 361 S.E.2d at 905 (internal quotation marks omitted).\n. While SMIL argues vigorously that this Court must accept SMIL\u2019s affidavits as true, including all statements in those affidavits, our standard of review does not require that we accept a witness\u2019 characterization of what \u201cthe facts\u201d mean. Nor are we required to accept as facts statements not based on personal knowledge, such as those asserted by Mr. Brooks in his supplemental affidavit.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Parker Poe Adams & Bernstein LLP, by Michael G. Adams and William L. Esser IV, for plaintiff-appellee.", "Winston & Strawn LLP, by Nash E. Long, III and Valerie B. Mullican, for defendant-appellant BNP Paribas (Suisse) SA." ], "corrections": "", "head_matter": "SPEEDWAY MOTORSPORTS INTERNATIONAL LTD., Plaintiff v. BRONWEN ENERGY TRADING, LTD., BRONWEN ENERGY TRADING UK, LTD., DR. PATRICK DENYEFA NDIOMU, BNP PARIBAS (SUISSE) SA, BNP PARIBAS S.A., SWIFT AVIATION GROUP, INC., SWIFT AIR, LLC, SWIFT AVIATION GROUP, LLC, AND SWIFT TRANSPORTATION CO., INC., Defendants\nNo. COA09-1451\n(Filed 15 February 2011)\n1. Appeal and Error\u2014 interlocutory orders and appeals\u2014 denial of motion to dismiss \u2014 personal jurisdiction\nAlthough defendant Swiss Bank appealed from an interlocutory order denying its motion to dismiss for lack of personal jurisdiction, defendant was entitled to immediate appellate review under N.C.G.S. \u00a7 l-277(b).\n2. Jurisdiction\u2014 personal \u2014 incorporation by reference clause \u2014forum selection clause\nThe trial court erred by denying defendant Swiss Bank\u2019s motion to dismiss based on lack of personal jurisdiction. The \u201cincorporation by reference\u201d clause in plaintiff\u2019s agreement with defendant could not reasonably be constructed as subjecting defendant to the forum selection clause when it was intended to identify the contracts that were the subject of the demand guarantee being issued by defendant for plaintiff.\n3. Jurisdiction\u2014 personal \u2014 long arm statute \u2014 minimum contacts \u2014 due process\nThe trial court did not have personal jurisdiction over defendant Swiss Bank under the North Carolina long arm statute when there were insufficient minimum contacts, and thus, there was no need to address whether exercising jurisdiction over defendant would satisfy the requirements of due process under the Fourteenth Amendment.\nAppeal by defendant from order entered 14 July 2009 by Judge Albert Diaz in Mecklenburg County Superior Court. Heard in the Court of Appeals 14 April 2010.\nParker Poe Adams & Bernstein LLP, by Michael G. Adams and William L. Esser IV, for plaintiff-appellee.\nWinston & Strawn LLP, by Nash E. Long, III and Valerie B. Mullican, for defendant-appellant BNP Paribas (Suisse) SA." }, "file_name": "0474-01", "first_page_order": 484, "last_page_order": 501 }