Godwin v. Walls

• Decision Date: 04 April 1995
• Docket Number: No. 9315SC1200,9315SC1200
• Citation: 455 S.E.2d 473,118 N.C.App. 341
• Court: North Carolina Court of Appeals
• Parties: James F. GODWIN, Sr., Administrator of the Estate of James F. Godwin, Jr., Deceased; James F. Godwin, Sr., Individually; and Jean P. Godwin, Plaintiffs, v. Roger Brent WALLS; M & B Trucking Incorporated; and Mediquik Express, Inc., Defendants.

Page 473

455 S.E.2d 473

118 N.C.App. 341

James F. GODWIN, Sr., Administrator of the Estate of James F. Godwin, Jr., Deceased; James F. Godwin, Sr. Individually; and Jean P. Godwin, Plaintiffs, v. Roger Brent WALLS; M & B Trucking Incorporated; and Mediquik Express, Inc., Defendants.

No. 9315SC1200.

Court of Appeals of North Carolina.

April 4, 1995.

Mast, Morris, Schulz & Mast, P.A. by George B. Mast, Bradley N. Schulz and David F. Mills, Smithfield, for plaintiffs-appellees.

Poe, Hoof & Reinhardt by G. Jona Poe, Jr., Martha New Milam and James C. Worthington, Durham, for defendants-appellants.

James K. Dorsett, III, Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, Raleigh, for Roger Brent Walls.

JOHN, Judge.

Defendant Roger Brent Walls (Walls) appeals the trial court's order denying his motion to dismiss for lack of personal jurisdiction. He contends the trial court erred by failing to consider oral arguments or written briefs from counsel in support of his motion and by concluding North Carolina may properly assert jurisdiction over his person. For the reasons set forth herein, we find certain of defendant's arguments persuasive.

Relevant factual and procedural information is as follows: On 23 July 1992, James F. Godwin, Jr. and William Roma Godwin were standing beside a 1986 Chevrolet pickup truck occupied by James F. Godwin, Sr. The vehicle was temporarily stopped on a grass shoulder along southbound Interstate 95 in Caroline County, Virginia. Walls was operating a Kenworth tractor-trailer southbound on Interstate 95 when his vehicle left the surfaced portion of the highway and collided with the truck, killing both James Godwin, Jr. and William Godwin.

Walls is a citizen and resident of Maryland. At the time of the accident, he had been an employee of defendant M & B Trucking, Inc. (M & B) since 5 December 1991. M & B is a North Carolina corporation whose principal place of business is Durham, North Carolina. Walls continued to reside in Maryland during his employment and made approximately two trips per week to North Carolina hauling pharmaceuticals for defendant Mediquik Express, Inc. (Mediquik), an Ohio corporation which maintained a North Carolina office in Chapel Hill. The owners of both the tractor (M & B) and the trailer (Mediquik) involved in the accident are defendants herein, but are not subjects of this appeal.

Plaintiffs instituted this action seeking damages from all defendants for wrongful death, property damage, loss of consortium, and emotional distress, as well as punitive damages.

On 18 June 1993, Walls filed a motion to dismiss for lack of personal jurisdiction and submitted an affidavit in support of the motion. The affidavit stated inter alia:

4. I am presently 26 years old and I have resided in the State of Maryland continuously since my birth.

5. On or about December 5, 1991, I became employed as a truck driver for M & B Trucking, Incorporated, a North Carolina corporation.

6. I was employed by M & B Trucking, Incorporated as an over-the-road truck driver.

7. Between December 1991 and July 23, 1992, I made approximately 2 trips per week to the State of North Carolina in connection with my employment as a driver for M & B Trucking, Incorporated. Each of my trips to North Carolina involved pick up or delivery of a trailer load of pharmaceuticals and I spent only a few hours within the State of North Carolina on each of these trips.

8. Other than as stated in paragraph seven (7) of this Affidavit, I have had no further contacts with the State of North Carolina.

9. On or about the 24th day of April, 1993, I was served with a copy of the Summons and Complaint in the above-captioned lawsuit by the Sheriff of Queen Anne's County, Maryland.

10. The accident which is the subject of the above-captioned lawsuit took place in the Commonwealth of Virginia on July 23, 1992.

11. I have not returned to nor had any further contact with the State of North Carolina since July 22, 1992, that date being one day before the accident that is the subject of the above-captioned lawsuit.

The trial court denied defendant Walls' motion and he thereafter filed timely notice of appeal to this Court 21 September 1993.

Although the denial of a motion to dismiss is not ordinarily immediately appealable, Walls properly proceeds pursuant to N.C.Gen.Stat. § 1-277(b) (1983), which prescribes a right of immediate appeal where there has been "an adverse ruling as to the jurisdiction of the court over the person or property of the defendant...." See also Teachy v. Coble Dairies, Inc., 306 N.C. 324, 327, 293 S.E.2d 182, 184 (1982). We therefore consider Walls' contentions.

I.

Walls first assigns as error the trial court's alleged denial sua sponte of his motion to dismiss for lack of personal jurisdiction without considering written briefs or oral arguments of counsel. We find this contention unpersuasive.

It is well settled that due process of law requires both notice and an opportunity to be heard before a competent tribunal. Forman & Zuckerman v. Schupak, 38 N.C.App. 17, 19, 247 S.E.2d 266, 268 (1978). "It is elementary and fundamental that every person is entitled to his day in court to assert his own rights or to defend against their infringement." Queen City Coach Co. v. Burrell, 241 N.C. 432, 436, 85 S.E.2d 688, 692 (1955).

Walls maintains the trial court determined personal jurisdiction existed on "the mere fact the Plaintiffs were from North Carolina ... Thus, no consideration was given to the question presented by [Walls regarding his] Motion to Dismiss for lack of personal jurisdiction ... In essence, [Walls] never had an opportunity to be heard."

However, "[i]f a judgment is regular on its face the record is presumed to be valid until the contrary is shown by the proper proceeding." Fungaroli v. Fungaroli, 51 N.C.App. 363, 368, 276 S.E.2d 521, 524, disc. review denied, 303 N.C. 314, 281 S.E.2d 651 (1981) (citing Shaver v. Shaver, 248 N.C. 113, 102 S.E.2d 791 (1958)). Thus, without a showing to the contrary, the trial court must receive the benefit of omnia rite acta praesumuntur, all things are presumed to have been rightly done. See Sherwood v. Sherwood, 29 N.C.App. 112, 114, 223 S.E.2d 509, 511 (1976).

The order herein indicates a hearing on Walls' motion was held whereby the plaintiffs and all defendants were represented by counsel. Further, counsel stipulate on appeal that "[t]he August 23, 1993 Civil Session of Orange County Superior Court was duly organized and held, and the proceedings in this case held before the Honorable George R. Greene, Superior Court Judge Presiding, were not recorded." Accordingly, as there is no record evidence to the contrary, we must assume a hearing was held in regards to Walls' motion to dismiss. Fungaroli, 51 N.C.App. at 368, 276 S.E.2d at 524. Walls consequently lacks a basis upon which to assert a violation of his procedural due process rights, and this assignment of error must therefore fail.

II.

Walls next argues the trial court committed reversible error when it denied his motion to dismiss for lack of personal jurisdiction. We conclude this contention has merit in certain respects.

The resolution of whether the trial court acquired in personam jurisdiction over defendant involves a two-fold determination. First, the statutes of North Carolina must permit the exercise of jurisdiction, and second, such exercise must comport with due process of law under the Fourteenth Amendment to the U.S. Constitution. Century Data Systems v. McDonald, 109 N.C.App. 425, 426-27, 428 S.E.2d 190, 190 (1993).

Long-Arm Statute

We first consider whether a basis for asserting personal jurisdiction exists under N.C.Gen.Stat. § 1-75.4 (1983), commonly referred to as the "long-arm statute."

In the case sub judice the trial court did not indicate under which subsection of the long-arm statute it determined jurisdiction was acquired over Walls. However, absent request by a party, the trial court is not required to make findings as to which statutory grounds it utilized in finding personal jurisdiction. Cameron-Brown Co. v. Daves, 83 N.C.App. 281, 285, 350 S.E.2d 111, 114 (1986). Rather it is presumed the court, upon proper evidence, found facts sufficient to support its decision. J.M. Thompson Co. v. Doral Manufacturing Co., 72 N.C.App. 419, 424, 324 S.E.2d 909, 912, disc. review denied, 313 N.C. 602, 330 S.E.2d 611 (1985) (citations omitted).

Since the trial court herein made no findings of fact, the dispositive issue before this Court is sufficiency of the evidence to support a determination of personal jurisdiction. Id. Plaintiffs contend three sections of our long-arm statute have applicability to the case sub judice. We examine each in turn. In the event we find one or more to confer personal jurisdiction over Walls, we must then decide if exercise of the statutory grant of jurisdiction violates the due process clause of the federal constitution. Century Data Systems, 109 N.C.App. at 426-27, 428 S.E.2d at 190.

A.

N.C.Gen.Stat. § 1-75.4(3) (1983) provides for personal jurisdiction

[i]n any action claiming injury to person or property or for wrongful death within or without this State arising out of an act or omission within this State by the defendant.

Thus, personal jurisdiction is authorized for any injury arising from a local act or omission.

Plaintiffs in their appellate brief assert the following acts or omissions by Walls occurred in North Carolina:

1. That defendant Walls was an agent and employee of M & B Trucking[, a North Carolina corporation,] and Mediquik and was operating a tractor trailer registered in the State of North Carolina at the time of the collision;

2. That Walls was a "motor carrier" as defined by the Federal Motor Carrier Safety Regulations ... (which imposes upon him a duty to properly inspect and maintain his vehicle);

3. That Walls, M & B Trucking and Mediquik's agent, failed to properly inspect the vehicle he...