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    "judges": [
      "Judge COZORT concurs.",
      "Judge WELLS concurs in part and dissents in part."
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    "parties": [
      "LELAND H. WILLIAMS, ERIC M. AUPPERLE, and L. DUANE PYLE v. INSTITUTE FOR COMPUTATIONAL STUDIES AT COLORADO STATE UNIVERSITY"
    ],
    "opinions": [
      {
        "text": "PARKER, Judge.\nThe sole issue to be decided in this appeal is whether the trial court erred in denying ICS\u2019s motion to dismiss plaintiffs\u2019 claims for lack of personal jurisdiction. As to the claim of plaintiff Williams, we hold that the court had jurisdiction over ICS and properly denied the motion. As to the claims of plaintiffs Aup-perle and Pyle, however, we hold there is no personal jurisdiction; therefore, the court below erred in denying the motion as to those claims.\nThe pleadings, affidavits, and documents in the record as well as the testimony of plaintiff Williams tend to show the following facts. The ICS Articles of Incorporation were executed by its incorporators 12 April 1984. Among the purposes of ICS listed in this document was to \u201c[o]perate unique, state-of-the-art, high performance computation facilities in an optimum manner for the maximum benefit of its member institutions.\u201d The prospectus for ICS listed eight institutions as having submitted letters of intent to participate as members, including the University of Michigan, the University of Houston, and Triangle Universities Computation Center (hereinafter, TUCO, a non-profit North Carolina corporation. Among those listed in the prospectus as chairmen of the five \u201ctechnical committees\u201d of ICS were plaintiff Williams of TUCC, as chairman of the \u201cOperations and Services Committee,\u201d plaintiff Aupperle of the University of Michigan, as chairman of the \u201cData Communications Committee,\u201d and plaintiff Pyle of the University of Houston, as chairman of the \u201cResearch Committee.\u201d In the ICS budget for the twelve months beginning 15 April 1984, under the heading \u201cFees,\u201d was listed $25,000 for \u201cTechnical Committee Chairmen.\u201d\nIn January 1984, prior to the execution of the ICS Articles of Incorporation, a meeting of the committee chairmen, including plaintiffs, took place in Fort Collins, Colorado. Also in January 1984, the computer facilities at TUCC, in Research Triangle Park, North Carolina, were linked to the computer facilities at ICS, in Fort Collins, Colorado, by means of a \u201cdedicated\u201d telephone line installed by AT&T especially for that purpose.\nSome time in April 1984, TUCC received from ICS a \u201cMembership Agreement\u201d providing that TUCC purchase a charter membership in ICS for $10,000. This document was signed under the heading \u201cAGREED TO\u201d by plaintiff Williams, in his capacity as president of TUCC, on 30 April 1984 in Durham, North Carolina. Plaintiff Williams then mailed this document to ICS in Fort Collins, Colorado, where the director of ICS signed the agreement under the heading \u201cACCEPTED By\u201d on 5 May 1984.\nIn July 1984, there was a second meeting of the ICS committee chairmen, including plaintiffs, in Fort Collins. At this meeting, gaining funds for ICS from the National Science Foundation was discussed.\nFrom 1 July 1984 to 30 June 1985, researchers and professors from various North Carolina universities made use of a Cyber 205 \u201csupercomputer\u201d located at ICS in Fort Collins through the line linking TUCC to ICS. Although TUCC received periodic invoices stating an \u201camount due\u201d for this use of the ICS facilities, TUCC was not required to pay for the first 200 hours of computer time under the terms of its charter membership with ICS. During this period, TUCC\u2019s North Carolina users used only about 70 hours of computer time. Plaintiff Williams testified that parties other than TUCC\u2019s North Carolina users also used the TUCC facility to gain access to the ICS computer through the special AT&T line, although he could only say \u201cwith certainty\u201d that the University of Houston had to come through the TUCC facility. He could not say the same \u201cwith as much certainty\u201d as to the other institutions who were ICS members.\nIn April 1985, ICS sent TUCC a letter informing TUCC of the \u201crevised sponsorship arrangement\u201d for the upcoming year and asking TUCC to sign up for another year of membership at an increased rate. ICS also sent a follow-up reminder to TUCC, dated 5 June 1985, requesting information regarding TUCC\u2019s intentions as to membership renewal. TUCC did not respond. In a letter dated 3 June 1985, ICS requested that AT&T discontinue service on the dedicated long line circuit linking ICS to TUCC.\nIn order for our courts to exercise jurisdiction over the person of a nonresident defendant such as ICS, two criteria must be met: first, the court must have jurisdiction over the person of defendant under our State\u2019s \u201clong-arm\u201d statute, and second, the exercise of jurisdiction must not violate the due process clause of the fourteenth amendment of the United States Constitution. Tom Togs, Inc. v. Ben Elias Industries Corp., 318 N.C. 361, 348 S.E. 2d 782 (1986); Miller v. Kite, 313 N.C. 474, 329 S.E. 2d 663 (1985). Once jurisdiction is challenged, plaintiff has the burden of proving prima facie that a statutory basis for jurisdiction exists. Marion v. Long, 72 N.C. App. 585, 325 S.E. 2d 300, disc. rev. denied, 313 N.C. 604, 330 S.E. 2d 612 (1985).\nDefendant argues that there is no statutory long-arm jurisdiction over ICS pursuant to G.S. 55-145(a)(l). Our long-arm statute permits the courts of this State to exercise jurisdiction over the person of a properly-notified defendant when, inter alia, a special jurisdiction statute applies. G.S. 1-75.4(2). One such special jurisdiction statute is G.S. 55-145(a)(l) which provides:\n(a) Every foreign corporation shall be subject to suit in this State, whether or not such foreign corporation is transacting or has transacted business in this State and whether or not it is engaged exclusively in interstate or foreign commerce, on any cause of action arising as follows:\n(1) Out of any contract made in this State or to be performed in this State ....\nFrom the record before this Court, the evidence was not, in our view, sufficient for the claims of plaintiffs Aupperle and Pyle to come within the purview of the long-arm statute. Williams testified at the hearing about the services he performed and where he entered into the contract; there is no similar evidence as to when Aupperle and Pyle entered into the contract, where their services were to be performed, and the nature of the services they were to render pursuant to the contract. Neither Aup-perle nor Pyle submitted affidavits or testified. Plaintiffs in their brief emphasize that the contract for consulting services was an oral contract and concede that plaintiffs accepted the contract in different places. According to plaintiffs\u2019 brief, \u201cPlaintiffs were to provide this [consulting] service in their capacities as the chairmen of several advisory committees . . . The ICS prospectus listed these \u201cadvisory committees\u201d under separate titles, including \u201cOperations and Services,\u201d to be chaired by plaintiff Williams, \u201cData Communications,\u201d to be chaired by plaintiff Aup-perle, and \u201cResearch,\u201d to be chaired by plaintiff Pyle. These separate titles indicate that the consulting services to be rendered by each of the plaintiffs were distinct in scope from the services to be rendered by the others. Plaintiffs\u2019 complaint alleges that ICS owed to each plaintiff separately the sum of $5,000.\nFor a contract to be made in this State, the last act necessary to make it a binding obligation must be performed in this State. Leasing Corp. v. Equity Associates, 36 N.C. App. 713, 245 S.E. 2d 229 (1978). On the facts alleged by plaintiffs, acceptance of the ICS offer was the final act necessary to create a binding contractual obligation. Accordingly, on the evidence before us, none of the plaintiffs made his contract in North Carolina so as to fall within the coverage of G.S. 55 145(a)(1). Although plaintiffs\u2019 brief claims that plaintiff Williams accepted the ICS offer in North Carolina, at the hearing on the motion to dismiss, plaintiff Williams testified that the alleged contract for his consultation services \u201ccame into being approximately at the time of the January 1984 \u2014January 22 to 24, 1984, meeting of Committee Chairmen at Colorado State University.\u201d (Emphasis added.) Plaintiffs concede in their brief that plaintiffs Aupperle and Pyle did not accept the ICS offer in North Carolina.\nFor a contract to be \u201cperformed\u201d in this State so as to fall under G.S. 55 145(a)(1), the contract must be performed here \u201cto a substantial degree.\u201d Koppers Co., Inc. v. Chemical Corp., 9 N.C. App. 118, 175 S.E. 2d 761 (1970); Bowman v. Curt G. Joa, Inc., 361 F. 2d 706 (4th Cir. 1966) (applying N.C. Law). There is sufficient evidence in the record to support a finding that plaintiff Williams was to perform and did in fact perform substantially in this State. However, except for conclusory statements in plaintiffs\u2019 brief that plaintiffs Aupperle and Pyle were parties to the same oral contract as plaintiff Williams and that this contract contemplated substantial performance in North Carolina, there was no basis for the trial court to find jurisdiction over ICS under G.S. 55145(a)(1) as to the contractual claims of plaintiffs Aupperle and Pyle. Plaintiffs Aupperle and Pyle were not affiliated with TUCC, and from the record, they did not perform any consulting services in North Carolina. Therefore, we conclude there is no statutory basis for the court\u2019s exercise of long-arm jurisdiction over ICS under G.S. 55-145(a)(l) as to the claims of plaintiffs Aupperle and Pyle.\nAs an alternative basis of statutory long-arm jurisdiction over ICS, plaintiffs contend that subsections (5)a and (5)b of G.S. 1-75.4, the North Carolina long-arm statute, permit jurisdiction over ICS in this case. General Statute 1-75.4(5) permits a court to exercise long-arm jurisdiction over a properly-notified defendant in any action which\na. Arises out of a promise, made anywhere to the plaintiff or to some third party for the plaintiffs benefit, by the defendant to perform services within this State or to pay for services to be performed in this State by the plaintiff; or\nb. Arises out of services actually performed for the plaintiff by the defendant within this State, or services actually performed for the defendant by the plaintiff within this State if such performance within this State was authorized or ratified by the defendant ....\nG.S. l-75.4(5)a and b. Again we find that while the record supports a finding that plaintiff Williams\u2019 alleged contract with ICS for consulting services was to be performed in this State or was in fact performed in this State, there is no support for such findings as to plaintiffs Aupperle and Pyle.\nSince the court below had no jurisdiction over ICS as to the contractual claims of plaintiffs Aupperle and Pyle under the State\u2019s long-arm statute, it is unnecessary to address the second question of due process as to these claims. However, we do reach a due process inquiry as to the contractual claim of plaintiff Williams.\nThe \u201cconstitutional touchstone\u201d of an inquiry into whether the exercise of jurisdiction over a nonresident defendant comports with due process is the defendant\u2019s purposeful establishment of \u201cminimum contacts\u201d with the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed. 2d 528 (1985); International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). In order to be subject to the jurisdiction of the forum state, there must 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 the forum state\u2019s laws. Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed. 2d 1283, 1298 (1958). The defendant\u2019s conduct and connection with the forum state must be \u201csuch that he should reasonably anticipate being haled into court there.\u201d World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed. 2d 490, 501 (1980). Generally, maintenance of the suit must not offend \u201ctraditional notions of fair play and substantial justice.\u201d Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278, 283 (1940). See also International Shoe, supra.\nWhen the controversy is related to or arises out of the defendant\u2019s contacts with the forum state, that state is said to exercise \u201cspecific jurisdiction\u201d over the defendant, and the focus of the inquiry is upon the relationships among the defendant, the forum, and the litigation. Helicopteros Nacionales de Columbia v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 1872, 80 L.Ed. 2d 404, 411 (1984). However, the cause of action is unrelated to defendant\u2019s activities in the forum state, that state may nonetheless exercise \u201cgeneral jurisdiction\u201d so long as there are sufficient \u201ccontinuous and systematic\u201d contacts between the defendant and the forum state. Helicopteros Nacionales, 466 U.S. at 414, 104 S.Ct. at 1872, 80 L.Ed. 2d at 411.\nOn the facts of the case before us, the controversy between plaintiff Williams and ICS is based on an alleged oral contract between the parties whereby plaintiff Williams was to provide \u201cconsulting services\u201d to ICS in exchange for compensation of $5,000. The alleged oral consulting contract between plaintiff Williams and ICS is clearly related to the ICS contacts with North Carolina through TUCC. TUCC, of which plaintiff Williams was president, had executed a written contract with ICS under which TUCC paid $10,000 for a charter membership in ICS. Membership in ICS entitled TUCC to 200 hours of use on the ICS \u201csupercomputer.\u201d As a result of this contract, a special AT&T long-line circuit was dedicated as a link between the ICS facilities and the TUCC facilities in Research Triangle Park, North Carolina.\nWhile we would hesitate to say that these contacts of ICS with North Carolina are sufficient to permit the exercise of general jurisdiction over ICS in a claim unrelated to the contacts, this ICS activity in its relation to TUCC and TUCC\u2019s North Carolina computer users is sufficient to support specific jurisdiction of our courts over a claim arising out of or related to the contacts. As our Supreme Court has stated, \u201cAlthough a contractual relationship between a North Carolina resident and an out-of-state party alone does not automatically establish the necessary minimum contacts with this State, nevertheless, a single contract may be a sufficient basis for the exercise of in personam jurisdiction if it has a substantial connection with this State.\u201d Tom Togs, Inc., 318 N.C. at 367, 348 S.E. 2d at 786. After examining the relationships among the defendant ICS, the State, and the cause of action, we conclude that as to the contractual claim of plaintiff Williams, the ICS contacts with North Carolina are sufficient to justify the assertion of jurisdiction over defendant ICS without violating the requirements of due process.\nICS also contends that the trial court erred in failing to dismiss plaintiffs\u2019 claim because the complaint contains insufficient allegations to show the existence of personal jurisdiction over ICS. We disagree.\nThe failure to plead the particulars of jurisdiction is not fatal to the claim so long as the facts alleged permit the inference of jurisdiction under the statute. Defendant may challenge the court\u2019s jurisdiction pursuant to G.S. 1A-1, Rule 12(b)(2). Plaintiff then has the burden of establishing prima facie that a statutory ground for asserting jurisdiction applies. Marion, supra. When the defendant\u2019s motion to dismiss is based on facts not appearing in the record, the court may hear the matter on affidavits, or may direct that the matter be heard wholly or partly on oral testimony or depositions. G.S. 1A-1, Rule 43(e).\nWith regard to the claims of plaintiffs Aupperle and Pyle, plaintiffs failed to show a basis for statutory jurisdiction, and the trial court therefore erred in failing to grant ICS\u2019s motion to dismiss these claims. With regard to plaintiff Williams\u2019 claim, plaintiffs met their burden of showing statutory jurisdiction, and the exercise of that jurisdiction comports with the requirements of due process. The trial court therefore correctly denied ICS\u2019s motion as to plaintiff Williams\u2019 claim.\nConsequently, for the reasons stated above, we affirm the denial of defendant\u2019s motion as to the claim of plaintiff Williams; as to the claims of plaintiffs Aupperle and Pyle we reverse the denial of defendant\u2019s motion.\nAffirmed in part; reversed in part.\nJudge COZORT concurs.\nJudge WELLS concurs in part and dissents in part.",
        "type": "majority",
        "author": "PARKER, Judge."
      },
      {
        "text": "Judge WELLS\nconcurring in part and dissenting in part.\nI concur with the majority as to the trial court\u2019s denial of defendant\u2019s motion to dismiss as to plaintiff Williams.\nAs to plaintiffs Aupperle and Pyle, my impression of the materials before the trial court persuades me that the trial court could have reasonably found that the contract between these plaintiffs and defendant was to be and was in fact substantially performed in North Carolina. I therefore vote to affirm the trial court\u2019s denial of defendant\u2019s motion as to these plaintiffs.",
        "type": "concurring-in-part-and-dissenting-in-part",
        "author": "Judge WELLS"
      }
    ],
    "attorneys": [
      "Haywood, Denny, Miller, Johnson, Sessoms and Patrick by George W. Miller, Jr., and Robert W. Oast, Jr., for plaintiff-appel-lees.",
      "Mills and Associates by William S. Mills and Maria J. Man-gano for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "LELAND H. WILLIAMS, ERIC M. AUPPERLE, and L. DUANE PYLE v. INSTITUTE FOR COMPUTATIONAL STUDIES AT COLORADO STATE UNIVERSITY\nNo. 8614SC1036\n(Filed 5 May 1987)\nProcess \u00a7 14.3\u2014 foreign corporation \u2014 contract to be performed in North Carolina \u2014 minimum contacts with North Carolina \u2014 exercise of personal jurisdiction proper\nThe trial court had personal jurisdiction over defendant with regard to the claim of the North Carolina plaintiff but not over the claims of the Michigan and Texas plaintiffs where the parties entered into a consulting contract whereby each plaintiff was to render separate and distinct services to defendant in exchange for $5,000 in compensation; none of the plaintiffs accepted defendant\u2019s offer in North Carolina but one plaintiff was to perform and did in fact perform substantially in this state; and defendant\u2019s contacts with this state, including a telephone hook-up with TUCC, of which the North Carolina plaintiff was president, and a charter membership for TUCC in defendant, were sufficient so that exercise of personal jurisdiction did not violate due process. N.C.G.S. \u00a7 l-75.4(5)a and b; N.C.G.S. \u00a7 55-145(a)(l).\nJudge Wells concurring in part and dissenting in part.\nAPPEAL by defendant from Lee, Judge. Order entered 30 June 1986 in Superior Court, DURHAM County. Heard in the Court of Appeals 10 February 1987.\nPlaintiffs filed suit in Durham County, North Carolina, against defendant, the Institute for Computational Studies at Colorado State University (hereinafter, ICS). The complaint alleges that plaintiffs entered into a contract with ICS for consultation services, and that although plaintiffs performed the services required by the contract, ICS failed to pay plaintiffs as agreed. The complaint also alleges that ICS is a Colorado corporation, that plaintiff Leland H. Williams is a citizen of Durham County, North Carolina, and that plaintiffs Eric M. Aupperle and L. Duane Pyle are citizens of Michigan and Texas, respectively. Before filing its answer, ICS filed a motion to dismiss for lack of personal jurisdiction and for insufficient service of process pursuant to G.S. 1A-1, Rules 12(b)(2) and 12(b)(5). The motion was denied, and ICS appeals.\nHaywood, Denny, Miller, Johnson, Sessoms and Patrick by George W. Miller, Jr., and Robert W. Oast, Jr., for plaintiff-appel-lees.\nMills and Associates by William S. Mills and Maria J. Man-gano for defendant-appellant."
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