Retail Investors, Inc. v. Henzlik Inv. Co.
| Decision Date | 01 February 1994 |
| Docket Number | No. 9326SC77,9326SC77 |
| Citation | 439 S.E.2d 196,113 N.C.App. 549 |
| Court | North Carolina Court of Appeals |
| Parties | RETAIL INVESTORS, INC. v. HENZLIK INVESTMENT CO.; Ronald J. Bennett; Michael H. Staenberg, individually and as Trustee for the Michael H. Staenberg Living Trust; Stephen F. Hutchinson; Robert J. Waters; C.W. Ansell; Irvin B. Maizlish, individually and as Trustee for the Irvin B. Maizlish Living Trust; and Frank O. Pusey. |
Parker, Poe, Adams & Bernstein by Fred T. Lowrance, Frank A. Hirsch, Jr., and Michael G. Adams, Charlotte, for plaintiff-appellee.
Petree Stockton by Jackson N. Steele and B. David Carson, Charlotte, for defendant-appellants.
Henzlik Investment Co., Ronald J. Bennett, Michael H. Staenberg, Stephen F. Hutchinson, Robert J. Waters, C.W. Ansell, Irvin B. Maizlish, and Frank O. Pusey (defendants) appeal from an order filed 10 December 1992, denying their motion to dismiss for lack of personal jurisdiction Retail Investors, Inc.'s (Retail) complaint seeking enforcement of a guaranty agreement.
The facts in this case are as follows: Jacksonville Partners, a Florida general partnership, owned a commercial shopping center development (the shopping center) in Jacksonville, Florida. Retail, a Delaware corporation with its principal place of business and home office located in Myrtle Beach, South Carolina and a wholly owned subsidiary of the Waccamaw Corporation (Waccamaw), a South Carolina corporation, was one of two partners in Jacksonville Partners. St. Augustine Road Development Company (St. Augustine) was the other partner. Defendants, the individual partners in St. Augustine, consist of the following: Henzlik Investment Co., a Missouri general partnership with Donald L. Henzlik (Henzlik), a citizen and resident of Missouri, as a principal partner; Ronald J. Bennett (Bennett), Irvin B. Maizlish (Maizlish), and Michael H. Staenberg (Staenberg), all citizens and residents of Missouri; Stephen F. Hutchinson (Hutchinson), Frank O. Pusey (Pusey), and C.W. Ansell (Ansell), all citizens and residents of South Carolina; and Robert J. Waters (Waters), a citizen and resident of Pennsylvania. Jacksonville Partners, as landlord, entered into a lease with Waccamaw, as tenant, for lease of a portion of the shopping center. In connection with Waccamaw's amendment of its lease, defendants and Retail executed a guaranty agreement on 3 October 1989. Pursuant to this agreement, defendants guaranteed payment of the indebtedness owed by St. Augustine to Retail under the terms of the Amended and Restated Partnership Agreement of Jacksonville Partners. The guaranteed indebtedness includes $1,364,330.00 as a principal loan (the Back-End Preference) plus annual payments (Annual Cash Flow Preference) as of March 31 of each year for ten years in the amount of $136,433.00 pursuant to Article 4.03 of the Jacksonville Partnership Agreement, together with any accrued interest. Paragraph 15 of the guaranty agreement contained a consent to jurisdiction clause which stated:
This Agreement shall be deemed to be a contract made under, and for all purposes shall be construed in accordance with, the internal laws and judicial decisions of the State of North Carolina. The [defendants] and Retail agree that any dispute arising out of this Agreement shall be adjudicated in either the state or federal courts in North Carolina and in no other forum. For that purpose, the [defendants] hereby submit to the jurisdiction of the state and federal courts of North Carolina. The [defendants] also agree that both the federal and state courts in Mecklenburg County, North Carolina are a convenient forum and agree not to raise as a defense that such courts are not a convenient forum. The [defendants] further agree to accept service of process out of any of the beforementioned courts in any such dispute by registered or certified mail addressed to the [defendants].
For 1992, defendants failed to pay an obligation due under the guaranty agreement. On 11 August 1992, Retail filed a complaint seeking enforcement of the guaranty agreement with defendants, costs of the action, and attorneys' fees and expenses.
On and between 19 October 1992 and 13 November 1992, defendants filed seven separate motions to dismiss for lack of personal jurisdiction under Rule 12(b)(2) of the North Carolina Rules of Civil Procedure and improper venue under Rule 12(b)(3) of the North Carolina Rules of Civil Procedure. The motions claimed lack of personal jurisdiction over Staenberg, Ansell, Waters, Maizlish, Bennett, Hutchinson, and Henzlik. After the hearing on defendants' motions to...
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