{
  "id": 8552672,
  "name": "CHEMICAL REALTY CORPORATION v. HOME FEDERAL SAVINGS & LOAN ASSOCIATION OF HOLLYWOOD",
  "name_abbreviation": "Chemical Realty Corp. v. Home Federal Savings & Loan Ass'n of Hollywood",
  "decision_date": "1979-04-17",
  "docket_number": "No. 7828SC420",
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    "judges": [
      "Chief Judge MORRIS and Judge CLARK concur."
    ],
    "parties": [
      "CHEMICAL REALTY CORPORATION v. HOME FEDERAL SAVINGS & LOAN ASSOCIATION OF HOLLYWOOD"
    ],
    "opinions": [
      {
        "text": "ARNOLD, Judge.\nI.\nHome Federal\u2019s argument that this action should have been dismissed for lack of subject matter jurisdiction is without merit. Original civil jurisdiction \u201cis vested in the aggregate in the superior court division and the district court division as the trial divisions of the General Court of Justice.\u201d G.S. 7A-240. And where the amount in controversy exceeds $5,000, the superior court is the proper division for the trial. G.S. 7A-243. This action was brought appropriately in superior court.\nII.\nHome Federal argues that none of the circumstances which would give the North Carolina courts personal jurisdiction over it exists in this case. In determining this question we consider North Carolina\u2019s long-arm statutes, since it is stipulated that Home Federal is a federal savings and loan association with its principal office in Hollywood, Florida, and that it has not applied for authority to transact business in North Carolina or appointed a local agent for service of process.\nG.S. 55445(a) provides that \u201c[ejvery foreign corporation shall be subject to suit in this State ... on any cause of action arising ... (1) Out of any contract made in this State or to be performed in this State. . . .\u201d Home Federal contends that the permanent loan commitment was made not in North Carolina, but in Florida; that the \u201cLetter Agreement\u201d referred to in Chemical\u2019s complaint was in fact not an agreement, but an \u201cestoppel certificate\u201d; and that performance of any commitment was to take place in Florida.\nFor a contract to be made in North Carolina, the final act necessary to make it a binding obligation must be done here. Goldman v. Parkland of Dallas, Inc., 7 N.C. App. 400, 173 S.E. 2d 15, aff\u2019d 277 N.C. 223, 176 S.E. 2d 784 (1970). In Goldman, a letter was sent to the North Carolina plaintiff from Atlanta, Georgia, instructing him: \u201cIf the above is agreeable, please sign and return the original copy of this letter.\u201d Plaintiff signed the letter in Greensboro, North Carolina, and deposited it in the mail there addressed to a Texas corporation. This Court found that the final act necessary in that case to create a binding obligation was the depositing of the letter containing the plaintiff\u2019s signature in the mail.\nIn the present case, three communications between the parties make up the permanent loan commitment. On 14 April 1972, Home Federal sent the permanent loan commitment letter to a North Carolina mortgage broker for forwarding to the borrower. This letter stated: \u201cI am enclosing a copy of this letter for your acceptance. Receipt of same, executed by the borrower, together with the commitment fee of $60,000.00 must be acknowledged by May 15, 1972 or this commitment letter will be automatically cancelled.\u201d On 15 May 1972 the borrower executed a copy of the commitment letter and delivered it with a cover letter and the commitment fee to the mortgage broker, who mailed the letters and fee to Home Federal. The borrower\u2019s cover letter stated: \u201cAttached please find copy of Commitment accepted by me on behalf of Asheville Development Associates as well as check for $60,000. We respectfully request that the following items and points of clarification be added to and made a part of captioned Commitment . . . .\u201d On 24 May 1972 Home Federal wrote back to the mortgage broker: \u201cPlease be advised that this Association is in receipt of $60,000.00 tendered by Asheville Development Associates. This letter is to confirm that our mortgage commitment dated April 14, 1972, is in full force and effect subject to three items. . . .\u201d\nHome Federal would have us find that the borrower\u2019s cover letter of 15 May was not an acceptance, but a counter-offer, and that Home Federal\u2019s letter of 24 May was the acceptance of this counter-offer and the final act necessary to create a binding contract. We see no support for this position in the communications involved. The borrower\u2019s letter of 15 May by its terms accepts the permanent loan commitment and requests three added \u201cpoints of clarification\u201d which do not change the essential nature of the commitment. The acceptance is not made conditional upon addition of the requested points. See 17 C.J.S. Contracts \u00a7 43. Nor does Home Federal by its letter of 24 May treat the borrower\u2019s letter as a counter-offer; it merely acknowledges receipt of the commitment fee and confirms the mortgage commitment. We find that the contract was completed by the borrower\u2019s acceptance in North Carolina of the permanent loan commitment. As a result, G.S. 55-145(a)(l) applies to give the North Carolina courts personal jurisdiction over Home Federal.\nHome Federal next contends that even if the statutory standards for jurisdiction are met, the constitutional requirements of due process are not. This contention is untenable. In Equity Associates v. Society for Savings, 31 N.C. App. 182, 228 S.E. 2d 761, cert. den. 291 N.C. 711 (1976), we found, based upon a fact situation practically identical to the one before us, that the contract itself was sufficient to satisfy the \u201cminimum contacts\u201d requirement of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Also, here, as in Equity Associates, other factors set out in Byham v. National Cibo House Corp., 265 N.C. 50, 143 S.E. 2d 225 (1965), for satisfying the test of \u201cminimum contacts\u201d and \u201cfair play\u201d are present. It is stipulated that Home Federal received aetual notice of the action. Since the hotel which was the subject of the loan was constructed here, it seems clear that \u201ccrucial witnesses and material evidence,\u201d id. at 57, 143 S.E. 2d at 231, also will be found here. Home Federal has availed itself of the benefits and protections of our laws not only by the instant contract, but also by a permanent loan commitment for a $2,500,000 loan for an apartment project in Jacksonville, North Carolina. That loan is secured by a deed of trust filed in North Carolina, and is being serviced by the North Carolina mortgage broker who arranged the loan in this action. Due process is satisfied.\nIII.\nChemical\u2019s complaint and summons named as defendant \u201cHome Federal Savings and Loan Association.\u201d Home Federal assigns as error the granting of Chemical\u2019s motion to amend these documents so that the defendant\u2019s name appears as \u201cHome Federal Savings and Loan Association of Hollywood.\u201d As Chemical points out, it was entitled to amend its complaint as a matter of right, since no responsive pleading had been filed. G.S. 1A-1, Rule 15(a). Amendment of the summons may be allowed by the court in its discretion \u201cunless it clearly appears that material prejudice would result to substantial rights of the party against whom the process issued.\u201d G.S. 1A-1, Rule 4(i). Home Federal has not shown any prejudice that resulted from this misnomer. It is stipulated that Home Federal received the complaint and summons and knew that they were meant for it. We find no error in the court\u2019s ruling. Accord Bailey v. McPherson, 233 N.C. 231, 63 S.E. 2d 559 (1951); Propst v. Hughes Trucking Co., 223 N.C. 490, 27 S.E. 2d 152 (1943).\nIV.\nHome Federal contends that its motion to amend certain findings of fact and conclusions of law in the trial court\u2019s order should have been granted because the findings are not supported by the evidence. Where the trial judge finds the facts, they are conclusive on appeal if there is evidence to support them, even if there is also evidence to the contrary. Whitaker v. Earnhardt, 289 N.C. 260, 221 S.E. 2d 316 (1976); Cox v. Cox, 33 N.C. App. 73, 234 S.E. 2d 189 (1977). We have examined the contested findings and have found that each is based upon competent evidence.\nHome Federal finally argues that certain findings and conclusions should be stricken because they are irrelevant to the issues before the court at the hearing on the motion. We find that all the challenged determinations resulted from issues raised by Home Federal in its motion. This assignment of error is unfounded.\nWe have considered Home Federal\u2019s other assignments of error and find that they are without legal merit.\nAffirmed.\nChief Judge MORRIS and Judge CLARK concur.",
        "type": "majority",
        "author": "ARNOLD, Judge."
      }
    ],
    "attorneys": [
      "Grier, Parker, Poe, Thompson, Bernstein, Gage and Preston, by Sydnor Thompson and Fred T. Lowrance, and Van Winkle, Buck, Wall, Starnes, Hyde and Davis, by Herbert L. Hyde, for plaintiff appellee.",
      "John E. Raper, Jr. and Reginald M. Barton, Jr., for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "CHEMICAL REALTY CORPORATION v. HOME FEDERAL SAVINGS & LOAN ASSOCIATION OF HOLLYWOOD\nNo. 7828SC420\n(Filed 17 April 1979)\n1. Courts \u00a7 4\u2014 $6,000,000 in controversy \u2014superior court appropriate forum\nAn action by plaintiff to recover $6,000,000 for defendant\u2019s failure to provide permanent financing for a hotel pursuant to the parties\u2019 letter agreement was properly brought in superior court. G.S. 7A-243.\n2. Process \u00a7 14\u2014 foreign corporation \u2014 contract completed in N. C. \u2014 minimum contacts\nWhere plaintiff alleged that it made a construction loan to a hotel in reliance upon the nonresident defendant\u2019s commitment to provide permanent financing, and defendant allegedly refused to perform under the parties\u2019 letter agreement, the N. C. courts had personal jurisdiction over defendant, since the borrower accepted the permanent loan commitment in N. C.; the hotel which was the subject of the loan was constructed in N. C.; the loan in this action was arranged by an N. C. mortgage broker; and defendant availed itself of the benefits and protection of N. C. laws not only by the instant contract, but also by a permanent loan commitment for a $2,500,000 loan for an apartment project in Jacksonville, N. C.\n3. Rules of Civil Procedure \u00a7\u00a7 4, 15\u2014 amendment of summons \u2014 no prejudice-amendment of complaint \u2014 no responsive pleading filed\nPursuant to G.S. 1A-1, Rule 4(i), plaintiff could amend its summons so that defendant\u2019s name appeared differently, since defendant showed no prejudice resulting therefrom, and pursuant to G.S. 1A-1, Rule 15(a), plaintiff could, as a matter of right, amend its complaint so that defendant\u2019s name appeared differently, since no responsive pleading had been filed.\nAPPEAL by defendant from Martin (H. CJ, Judge. Orders entered 1 October 1977 and 27 October 1977 in Superior Court, BUNCOMBE County. Heard in the Court of Appeals 26 February 1979.\nPlaintiff Chemical Realty Corporation (Chemical) is a New York corporation with its principal office in New York City. Defendant Home Federal Savings & Loan Association of Hollywood (Home Federal) maintains its principal office in Hollywood, Florida. Chemical alleges that Home Federal made a permanent loan commitment to advance $6,000,000 upon the completion of the Landmark Hotel in Asheville, North Carolina, and that in reliance on this permanent loan commitment Chemical made a $6,000,000 construction loan commitment to Landmark. Chemical further alleges that the parties entered into a \u201cLetter Agreement\u201d by which Home Federal agreed that upon construction of the hotel in substantial compliance with the plans and specifications it would purchase from Chemical a note for the indebtedness of Landmark to Chemical for the funds advanced under the construction loan and would accept an assignment from Chemical of a deed of trust on the hotel. For the alleged refusal of Home Federal to perform under this letter agreement, Chemical seeks damages of at least $3,000,000. Chemical seeks a second $3,000,000 for the alleged refusal of Home Federal to extend the time during which the permanent loan commitment and letter agreement would be in effect, pursuant to the terms of the agreements.\nHome Federal moved to dismiss for lack of subject matter jurisdiction, lack of personal jurisdiction, and improper service of process. In the alternative, Home Federal sought a \u201cchange of venue\u201d to Broward County, Florida on the ground that Buncombe County is an inconvenient forum. Chemical then moved for leave to amend its complaint and summons by changing the defendant\u2019s name from \u201cHome Federal Savings & Loan Association\u201d to \u201cHome Federal Savings and Loan Association of Hollywood.\u201d\nThe trial court granted Chemical leave to amend and denied Home Federal\u2019s motions to dismiss and for change of venue, making findings of fact and conclusions of law in support of its order. Home Federal\u2019s motion to amend the findings and conclusions was denied. Home Federal appeals.\nGrier, Parker, Poe, Thompson, Bernstein, Gage and Preston, by Sydnor Thompson and Fred T. Lowrance, and Van Winkle, Buck, Wall, Starnes, Hyde and Davis, by Herbert L. Hyde, for plaintiff appellee.\nJohn E. Raper, Jr. and Reginald M. Barton, Jr., for defendant appellant."
  },
  "file_name": "0675-01",
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