{
  "id": 8522869,
  "name": "EDGAR SCHALL v. CHARLES JENNINGS",
  "name_abbreviation": "Schall v. Jennings",
  "decision_date": "1990-07-03",
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  "casebody": {
    "judges": [
      "Judges WELLS and EAGLES concur."
    ],
    "parties": [
      "EDGAR SCHALL v. CHARLES JENNINGS"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nThe plaintiff appeals the trial court\u2019s order denying his Rule 59 motion for a new trial.\nThis is the second appearance of this case on our docket. In the first visit the defendant appealed the trial court\u2019s grant of its own new trial motion without allowing the parties to be heard. Schall v. Jennings, 94 N.C. App. 601, 381 S.E.2d 353 (1989) (unpublished opinion). The facts of this case, as ably articulated in the first appeal are as follows:\nIn his complaint, plaintiff alleged that he loaned defendant $20,000 in 1981. Defendant was then married to plaintiff\u2019s daughter; however, they later divorced. Plaintiff claimed that defendant paid annual interest on the loan from 1981 to 1985 but thereafter refused to pay. Plaintiff, a resident of Paris, France, filed suit 12 May 1987 to recover the loan principal and unpaid interest. Plaintiff claimed that defendant was a resident of Greensboro, North Carolina. The day before moving to London, England, on reassignment with R. J. Reynolds Tobacco, defendant was personally served with process on 12 May 1987 in Greensboro. Among other defenses, defendant denied that the loan was made, and he denied that he was a resident of Greensboro.\nWhile his case was pending, plaintiff initiated an attachment proceeding to levy on real property owned by defendant in Guilford County. An order of attachment was thereafter issued on defendant\u2019s property. A consent order was entered allowing defendant to sell the attached property and to deposit $24,000 with the Clerk of Superior Court of Forsyth County. The funds were subsequently deposited with the Clerk and the order of attachment was cancelled.\nOn 26 April 1988 at the close of plaintiff\u2019s evidence, the trial court allowed defendant\u2019s motion to dismiss for lack of personal and subject matter jurisdiction. The trial court also ordered that the Clerk release defendant\u2019s funds. Plaintiff gave oral notice of appeal in open court.\nOn 27 April 1988, this Court allowed plaintiff\u2019s petition for a temporary stay of the trial court\u2019s order releasing the funds.\nOn 28 April 1988 the trial court on its own motion (1) set aside the order dismissing plaintiff\u2019s case and (2) granted plaintiff a new trial. The Clerk of Superior Court was ordered to stop payment on the check releasing defendant\u2019s funds. On 3 May 1988, this Court dissolved the temporary stay which had been entered on 27 April 1988. On 5 May 1988, defendant filed notice of appeal of the trial court\u2019s order of 28 April 1988 which had granted plaintiff a new trial.\nEmphasis added.\nAfter determining the trial court erred as a matter of procedure, we reversed the trial court\u2019s unilateral decision to grant a new trial, but gave the plaintiff the opportunity to move for a new trial. The plaintiff did so, and the trial court denied the motion, thus in effect affirming its original dismissal for lack of subject matter jurisdiction and lack of personal jurisdiction.\nThe issues are (I) whether the trial court possessed subject matter jurisdiction over this dispute; and (II) whether the trial court gained personal jurisdiction over the defendant.\nI\nThe plaintiff argues the trial court erred in dismissing the action for lack of subject matter jurisdiction and in not remedying this error pursuant to N.C.G.S. \u00a7 1A-1, Rule 59(8) (1983). We agree. All civil matters of a justiciable nature in which the amount in controversy exceeds $10,000.00, and not otherwise delegated to the district courts, are properly brought before the superior courts. N.C.G.S. \u00a7\u00a7 7A-240 and 243 (1989). A contract action on an alleged $20,000.00 debt qualifies. Furthermore, the fact that neither party resides in North Carolina is irrelevant to determining subject matter jurisdiction. In Harris v. Pembaur, 84 N.C. App. 666, 353 S.E.2d 673 (1987), the Court of Appeals found subject matter jurisdiction in a case where neither party was a resident of North Carolina, and the controversy arose out of an agreement for sale of a horse outside of North Carolina. In the case at hand we also have only out-of-state parties, and the plaintiff presented no evidence that the alleged loan agreement arose in North Carolina. According to Pembaur, subject matter jurisdiction is not precluded by non-citizenship of the parties. Id., at 667-68, 353 S.E.2d at 675; see also Miller v. Black, 47 N.C. 342 (1855) (action may be maintained in North Carolina even though both parties are citizens of other states).\nII\nThe plaintiff also argues the trial court erred in dismissing the action for lack of personal jurisdiction. The defendant did not raise this issue in his answer or in a Rule 12(b)(2) motion. Since the defendant appeared at trial, through counsel, without raising the issue, it is waived. Simms v. Mason\u2019s Stores, Inc., 285 N.C. 145, 203 S.E.2d 769 (1974). Even if the defendant had not waived the issue, the record shows he was personally served with summons and complaint in a hotel in Winston-Salem, North Carolina. The North Carolina Supreme Court has unequivocally held that personal service of process within North Carolina confers personal jurisdiction over a nonresident party. Lockert v. Breedlove, 321 N.C. 66, 361 S.E.2d 581 (1987). The United States Supreme Court has recently confirmed the constitutionality of this approach. Burnham v. Superior Court of California, \u2014 U.S. \u2014, 110 S.Ct. 2105 (1990).\nThe plaintiff\u2019s third assignment of error is immaterial since the trial court only addressed the issues of subject matter jurisdiction and personal jurisdiction in its 26 April 1988 order. Any other issues discussed in its order denying a new trial based on errors during trial are not properly before this court on appeal. Thus, since the trial court erred in dismissing this action for lack of subject matter jurisdiction and personal jurisdiction, we must reverse and remand for a new trial.\nReversed and remanded.\nJudges WELLS and EAGLES concur.",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "Theodore M. Molitoris for plaintiff-appellant.",
      "William L. Durham for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "EDGAR SCHALL v. CHARLES JENNINGS\nNo. 8921SC1003\n(Filed 3 July 1990)\n1. Courts \u00a7 4 (NCI3d) \u2014 subject matter jurisdiction \u2014 nonresident parties \u2014 action on $20,000 debt\nThe trial court erred in dismissing an action to collect a $20,000 debt for lack of subject matter jurisdiction and in not remedying the error pursuant to N.C.G.S. \u00a7 1A-1, Rule 59(8). A contract action on an alleged $20,000 debt qualifies as a matter of a justiciable nature in which the amount in controversy exceeds $10,000 and is not otherwise delegated to the district courts; the fact that neither party resides in North Carolina is irrelevant to determining subject matter jurisdiction. N.C.G.S. \u00a7 7A-240, N.C.G.S. \u00a7 7A-243.\nAm Jur 2d, Courts \u00a7\u00a7 93, 154 et seq.\n2. Process \u00a7 8 (NCI3d)\u2014 personal jurisdiction \u2014 waived\u2014service of nonresident defendant in North Carolina\nDefendant in a debt collection action waived the issue of personal jurisdiction by appearing at trial without raising the question; even if he had not waived the issue, the record shows that he was personally served with summons and complaint in a hotel in Winston-Salem, North Carolina, and the North Carolina Supreme Court has unequivocally held that personal service of process within North Carolina confers personal jurisdiction over a nonresident party.\nAm Jur 2d, Courts \u00a7\u00a7 143, 145.\nAPPEAL by plaintiff from order entered 16 August 1989 by Judge James A. Beaty, Jr., in FORSYTH County Superior Court. Heard in the Court of Appeals 3 April 1990.\nTheodore M. Molitoris for plaintiff-appellant.\nWilliam L. Durham for defendant-appellee."
  },
  "file_name": "0343-01",
  "first_page_order": 373,
  "last_page_order": 377
}