Birtha v. Stonemor, N.C., LLC

• Decision Date: 01 May 2012
• Docket Number: No. COA11–79.,COA11–79.
• Citation: 727 S.E.2d 1
• Parties: Patricia Colyer BIRTHA, as administratrix of the Estate of Sarah Lenon Colyer; deceased, James West Lindsay, as administrator of the Estate of Lottie Mae Lindsay and William Lindsay, deceased, Montezz Nelson, next of kin of Rebecca Grier and James Grier, deceased on behalf of themselves and all other persons similarly situated, Plaintiffs, v. STONEMOR, NORTH CAROLINA, LLC, Stonemor, North Carolina Funeral Services, Inc., Stonemor, North Carolina Subsidiary, LLC, Alderwoods Group, Inc., Service Corporation International, a/k/a SCI, d/b/a York Memorial Cemetery, Defendants.
• Court: North Carolina Court of Appeals

727 S.E.2d 1

Patricia Colyer BIRTHA, as administratrix of the Estate of Sarah Lenon Colyer; deceased, James West Lindsay, as administrator of the Estate of Lottie Mae Lindsay and William Lindsay, deceased, Montezz Nelson, next of kin of Rebecca Grier and James Grier, deceased on behalf of themselves and all other persons similarly situated, Plaintiffs,

v.STONEMOR, NORTH CAROLINA, LLC, Stonemor, North Carolina Funeral Services, Inc., Stonemor, North Carolina Subsidiary, LLC, Alderwoods Group, Inc., Service Corporation International, a/k/a SCI, d/b/a York Memorial Cemetery, Defendants.

No. COA11–79.

Court of Appeals of North Carolina.

May 1, 2012.

Appeal by Plaintiffs from order entered 29 July 2010 by Judge Timothy L. Patti in Mecklenburg County Superior Court. Heard in the Court of Appeals 17 August 2011.

Pamela A. Hunter, Charlotte, for Plaintiff–Appellants.

Moore and Van Allen, PLLC, Charlotte, by M. Cabell Clay, Anthony T. Lathrop and Alton L. Gwaltney, III, for Defendant–Appellee.

BEASLEY, Judge.

Patricia Colyer Birtha, James West Lindsay, and Montez Nelson (Plaintiffs) appeal an order of dismissal of their claims of negligence, breach of contract, fraud, fraud upon the public, and unfair and deceptive trade practices against Stonemor, North Carolina, LLC, Stonemor, North Carolina Funeral Services, Inc., Stonemor North Carolina Subsidiary, LLC, Alderwoods Group, Inc., and Service Corporation International aka SCI doing business as York Memorial Cemetery (Defendants). For the following reasons, we affirm.

Plaintiffs assert similar injuries stemming from Defendants' alleged failure to properly maintain grave sites. Plaintiff Birtha's mother was buried at York Cemetery in 1968 and in February 2007, after several inquiries, Birtha became aware that her mother's headstone was placed at the wrong burial plot. Plaintiff Lindsay's mother's and father's remains were interred at York Cemetery in August 1986. In February 2007, Lindsay discovered that Defendants removed his parents' headstones, and Defendants informed him that his parents' headstones and gravesites could not be located. Plaintiff Nelson's mother's remains were buried at York Cemetery in February 2003 and her father's remains were buried November of 2006. When Nelson's father's remains were buried, she was informed that Defendants could not locate her mother's grave site.

Plaintiffs commenced this action on 18 June 2007, in their capacities as estate administrators, against Defendants. Defendant SCI moved to dismiss the original complaint pursuant to N.C.R. Civ. P. 12(b)(2) (Rule 12(b)(2)) and Defendants Alderwoods Group, Inc. and SCI moved to dismiss pursuant to N.C.R. Civ. P. 12(b)(6) (Rule 12(b)(6)). At the 17 April 2009 hearing, Plaintiffs submitted an amended complaint. On 9 July 2010, the trial court granted Defendants' motion to dismiss pursuant to Rules 12(b)(2) and 12(b)(6) and dismissed all claims against all Defendants. Plaintiffs filed a motion for a new trial on 12 August 2010 and notice of appeal on 27 August 2010.

In their first argument, Plaintiffs assert that the trial court committed reversible error when it dismissed SCI from the suit for lack of personal jurisdiction. We disagree.

Our Court has previously held that when reviewing the grant or denial of a Rule 12(b)(2) motion

[t]he standard of review to be applied by a trial court ... depends upon the procedural context confronting the court.

....

If the defendant supplements his motion to dismiss with an affidavit or other supporting evidence, the allegations in the complaint can no longer be taken as true or controlling and plaintiff cannot rest on the allegations of the complaint. In order to determine whether there is evidence to support an exercise of personal jurisdiction, the court then considers (1) any allegations in the complaint that are not controverted by the defendant's affidavit and (2) all facts in the affidavit (which are uncontroverted because of the plaintiff's failure to offer evidence).

....

When this Court reviews a decision as to personal jurisdiction, it considers only whether 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. Under Rule 52(a)(2) of the Rules of Civil Procedure, however, the trial court is not required to make specific findings of fact unless requested by a party. When the record contains no findings of fact, it is presumed that the court on proper evidence found facts to support its judgment.

Banc of Am. Secs. LLC v. Evergreen Int'l Aviation, Inc., 169 N.C.App. 690, 693–94, 611 S.E.2d 179, 182–83 (2005) (internal citations, internal quotation marks, ellipses, and brackets omitted).

In order to determine whether our courts may exercise personal jurisdiction over a non-resident defendant, we apply a two part test: “(1) Does a statutory basis for personal jurisdiction exist, and (2) If so, does the exercise of this jurisdiction violate constitutional due process?” Golds v. Central Express, Inc., 142 N.C.App. 664, 665, 544 S.E.2d 23, 25 (2001). “The assertion of personal jurisdiction over a defendant comports with due process if defendant is found to have sufficient minimum contacts with the forum state to confer jurisdiction.” Id. at 665–66, 544 S.E.2d at 25. The long-arm statute is “liberally construed to find personal jurisdiction over nonresident defendants to the full extent allowed by due process.” Id. at 666, 544 S.E.2d at 26 (internal quotation marks omitted). “The burden is on [the] plaintiff to establish itself within some ground for the exercise of personal jurisdiction over defendant.” Public Relations, Inc. v. Enterprises, Inc., 36 N.C.App. 673, 677, 245 S.E.2d 782, 784 (1978).

In the present case, Plaintiffs contend that N.C. Gen.Stat. § 1–75.4(1) confers jurisdiction because SCI acquired and retains all shares in Alderwoods, a co-defendant. Defendant SCI submitted an affidavit in support of its Rule 12(b)(2) motion. Plaintiffs did not present any affidavits, but instead relied on verified responses by Defendants. Defendants' responses merely re-state an issue that is uncontroverted; SCI acquired and retains all shares of Alderwoods. However, “when a subsidiary of a foreign corporation is carrying on business in a particular jurisdiction, the parent is not automatically subject to jurisdiction in the state”. Ash v. Burnham Corp., 80 N.C.App. 459, 462, 343 S.E.2d 2, 4 (1986) (internal quotation marks and citations omitted). Rather, the issue is whether or not SCI, by virtue of its position as sole shareholder in Alderwoods, falls within the purview of the long-arm statute.

In Golds, our Court found that the plaintiff did not meet its burden of presenting a prima facie statutory basis for personal jurisdiction where “the complaint [did] not state the section of this statute under which jurisdiction [was] obtained nor [did] it allege any facts as to activity being conducted in this State[.]” Golds, 142 N.C.App. at 667, 544 S.E.2d at 26. Similarly, Plaintiffs assert the section of the long-arm statute in their brief, but failed to state any grounds for personal jurisdiction in their complaint. Further, the complaint did not allege facts as to activity being conducted within the state by SCI.

[W]e stressed that while application of the minimum contacts standard will vary with the quality and nature of defendant's activity, ... it is essential in each case that there be some act by which defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protection of its laws. Absent such purposeful activity by defendant in the forum State, there can be no contact with the forum State sufficient to justify personal jurisdiction over defendant.

United Buying Group, Inc. v. Coleman, 296 N.C. 510, 515, 251 S.E.2d 610, 614 (1979) (internal quotation marks and citations omitted).

An affidavit provided by Janet Key of SCI supports the trial court's decision in that SCI had no employees, it has corporate headquarters in Houston, Texas, SCI had no business dealings in North Carolina, nor does it maintain accounts in North Carolina, SCI does not own real property in North Carolina, nor pay taxes to the State of North Carolina. Based on the foregoing, we hold that Plaintiffs failed to allege facts that permitted the inference of jurisdiction under the long-arm statute. Therefore, Plaintiffs' argument is overruled.

Next, Plaintiffs contend that the trial court erred by granting Defendants' motion to dismiss the claims of negligence, fraud, and breach of contract. Plaintiffs assert that they filed their claims within the required statute of limitations, and that North Carolina recognizes the continuing wrong doctrine as a tolling mechanism for negligence claims. We disagree.

This Court reviews the grant of a motion to dismiss pursuant to Rule 12(b)(6) to determine

whether the complaint states a claim for which relief can be granted under some legal theory when the complaint is liberally construed and all the allegations included therein are taken as true. On a motion to dismiss, the complaint's material factual allegations are taken as true. Dismissal is proper when one of the following three conditions is satisfied: (1) the complaint on its face reveals that no law supports the plaintiff's claim; (2) the complaint on its face reveals the absence of facts sufficient to make a good claim; or (3) the complaint discloses some fact that necessarily defeats the plaintiff's claim. On appeal of a 12(b)(6) motion to dismiss, this Court conducts a de novo review of the pleadings to determine their legal sufficiency and to determine whether the trial court's ruling on the motion to dismiss was correct.

Burgin v. Owen, 181 N.C.App. 511, 512, 640 S.E.2d 427, 428–29 (2007) (internal quotation marks and citations omitted).

The trial court dismissed Plaintiffs' negligence claim on...