New Bern Pool & Supply Co. v. Graubart

• Decision Date: 18 July 1989
• Docket Number: No. 883SC998,883SC998
• Citation: 381 S.E.2d 156,94 N.C.App. 619
• Court: North Carolina Court of Appeals
• Parties: NEW BERN POOL & SUPPLY COMPANY v. Eli GRAUBART d/b/a Air Machines, Inc.

Page 156

381 S.E.2d 156

94 N.C.App. 619

NEW BERN POOL & SUPPLY COMPANY v. Eli GRAUBART d/b/a Air Machines, Inc.

No. 883SC998.

Court of Appeals of North Carolina.

July 18, 1989.

Ward and Smith, P.A. by John A.J. Ward and Donalt J. Eglinton, New Bern, for plaintiff-appellee.

Barker, Dunn & Mills by Donald J. Dunn, New Bern, for defendant-appellant.

WELLS, Judge.

Defendant assigns error to the trial court's failure to dismiss plaintiff's action on the grounds that the courts of North Carolina lacked personal and subject matter jurisdiction. Defendant contends that defendant Eli Graubart is a citizen and resident of the State of New Jersey who has no business in this State and has conducted no business transactions in North Carolina. Defendant further contends that he owns no property in North Carolina and that he never has owned property in this state. Defendant also contends that the transaction at issue in the present case was transacted by telephone between defendant and plaintiff's president, Jack Trabucco. Trabucco flew to the State of New York to inspect and examine the Baron aircraft and the sale of the aircraft was consummated in New York. Defendant contends that these facts indicate that North Carolina courts do not have personal jurisdiction over him and that plaintiff's action should have been dismissed. Defendant further contends that the transaction at issue took place entirely in New York and therefore North Carolina courts lack subject matter jurisdiction.

In regard to in personam jurisdiction we have stated:

To determine if foreign defendants may be subjected to in personam jurisdiction in this state, we apply a two-pronged test. First, we determine whether North Carolina jurisdictional statutes allow our courts to entertain the action. Second, we determine whether our courts can constitutionally exercise such jurisdiction consistent with due process of law.

Marion v. Long, 72 N.C.App. 585, 325 S.E.2d 300, appeal dismissed and disc. rev. denied, 313 N.C. 604, 330 S.E.2d 612 (1985). In his brief defendant has conceded that a statutory basis for jurisdiction exists. In order for North Carolina courts to have in personam jurisdiction over defendant, defendant must be shown to have sufficient "minimum contacts" under the test established in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). As we stated in Marion:

The existence of minimum contacts cannot be ascertained by mechanical rules, but rather by consideration of the facts of each case in light of traditional notions of fair play and justice.... The factors to be considered are (1) quantity of the contacts, (2) nature and quality of the contacts, (3) the source and connection of the cause of action to the contacts, (4) the interest of the forum state, and (5) convenience to the parties.

Marion, supra, 72 N.C.App. at 587, 325 S.E.2d at 302. (Citations omitted).

In Ciba-Geigy Corp. v. Barnett, 76 N.C.App. 605, 334 S.E.2d 91 (1985), we stated:

Minimum contacts do not arise ipso facto from actions of a defendant having an effect in the forum state.... There must be some act or acts by which the defendant purposely availed himself of the privilege of doing business there, ... such that he or she should reasonably anticipate being haled into court there. (Citations omitted).

In the present case, defendant initially filed a motion to dismiss for lack of personal jurisdiction on 19 February 1986. On 11 April 1986, Jack Trabucco, President and Chief Executive Officer of plaintiff company filed an affidavit outlining defendant's contacts and activities with plaintiff, through Trabucco, in regard to the transaction at issue in the present case. This affidavit was filed in opposition to defendant's motion to dismiss. Defendant filed no affidavit in contravention of plaintiff's affidavit. On 27 April 1986, the trial court (Judge John B. Lewis, Jr.) entered an order denying defendant's motion to dismiss for lack of jurisdiction. The trial court in making this order found that plaintiff had shown that: defendant had advertised the sale of the airplane in a trade magazine which was mailed to the offices of plaintiff in Craven County, North Carolina; defendant initiated and placed numerous telephone calls to plaintiff in Craven County, North Carolina; defendant mailed brochures, information, specifications, and photographs of the aircraft to plaintiff at plaintiff's offices in Craven County, North Carolina in an attempt to solicit plaintiff to purchase the aircraft; in response to the solicitations by defendant and at the request of defendant, plaintiff forwarded funds drawn on a North Carolina bank to defendant. The trial court further found that plaintiff, at defendant's request, had shipped a 1973 Piper Arrow aircraft, owned by plaintiff, to New York and took a check in the amount of $22,000 drawn on plaintiff's account with a North Carolina bank to defendant in New York.

The trial court also found that plaintiff further showed that defendant made repeated promises to ship aircraft parts to Craven County, and promised to pay for repairs to be made in North Carolina. The trial court also noted that repairs to the aircraft were performed in North Carolina, that witnesses, as to those repairs and to the associated expenses, were residents of North Carolina and that FAA personnel who were anticipated to be witnesses in the case were residents of North Carolina, the FAA inspection of the plane having been made in Craven County, North Carolina. Defendant did not except to these findings. The trial court concluded that "Defendant has sufficient minimum contacts with North Carolina and that maintenance of the suit ... would not offend traditional notions of fair play and substantial justice." This order was excepted to by defendant. The ruling formed the basis for the denial of defendant's subsequent motions to dismiss at trial for lack of personal jurisdiction.

We now apply the above principles to the evidence of defendant's contacts in the present case as related by plaintiff's affidavit and found by the trial court. Defendant has made numerous telephone calls and mailings to plaintiff in North Carolina as well as the initial solicitation in the trade magazine. Plaintiff was further directed by defendant to forward funds drawn on a North Carolina bank to New York. The contacts were substantial in form and content with the intention of effecting a sale. Defendant's contacts with plaintiff in North Carolina gave rise to the transaction, the sale of the Baron aircraft. The interest of the State of North Carolina in providing consumer protection for its citizens and corporate entities and a forum for the adjudication of controversies involving them is substantial. In terms of convenience to the parties, it is noted that repairs to the aircraft in question were performed in North Carolina. Persons who are witnesses to these repairs and the expenses incurred are residents of North Carolina and FAA personnel, who were potential witnesses as a result of having inspected the plane in North Carolina, were also residents of North Carolina.

Defendant's intentional acts in this case are such that defendant can be said to have purposely availed himself of the privilege of doing business in the State of North Carolina to the extent that defendant should have reasonably anticipated being haled into court in this State. We conclude that defendant had sufficient minimum contacts with the State of North Carolina so as to allow the trial court to exert personal jurisdiction over him and that the maintenance of this action in North Carolina does not offend traditional notions of fair play and substantial justice. We hold that the trial court had proper in personam jurisdiction over defendant in the present case. Defendant's assignments of error are overruled.

Defendant has cited no law to support his argument concerning the trial court's failure to dismiss for lack of subject matter jurisdiction upon motion by defendant. We have examined these assignments of error and found them to be without merit. Accordingly, the assignments of error are overruled.

Defendant also assigns error to the trial court's failure to grant defendant's motion for directed verdict at the close of plaintiff's evidence on the grounds that plaintiff failed to prove by sufficient evidence that defendant fraudulently represented to plaintiff the condition of the Baron aircraft and that plaintiff reasonably relied on the statements of defendant. "The question of sufficiency of the evidence to send a case to the jury is a question of law." Hunt v. Montgomery Ward and Co., 49 N.C.App. 642, 272 S.E.2d 357 (1980). "The question presented to the appellate court in reviewing the decision of the trial court 'is the identical question which was presented to the trial court by defendant's motion ..., namely, whether the evidence, when considered in the light most favorable to plaintiff, was sufficient for submission to the jury.' " Id. at 644, 272 S.E.2d at 360, (quoting Kelly v. Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971)). As we stated in Hunt:

The trial court should deny motions for directed verdict and for judgment notwithstanding the verdict when, viewing the evidence in the light most favorable to the plaintiff and giving the plaintiff the benefit of all reasonable inferences, it finds 'any evidence more than a scintilla' to support plaintiff's prima facie case in all its constituent elements.

Hunt, 49 N.C.App. at 644, 272 S.E.2d at 360. (Citations omitted). Concerning the establishment of a prima facie case of fraud our Supreme Court has stated:

'While fraud has no all-embracing definition and is better left undefined lest crafty men find a way of committing fraud which avoids the definition, the following essential elements of actionable fraud are well...