Wyatt v. Walt Disney World Co.

Decision Date02 July 2002
Docket NumberNo. COA01-882.,COA01-882.
CourtNorth Carolina Court of Appeals
PartiesDinah WYATT, Gary Wyatt and Hunter Wyatt, Plaintiffs, v. WALT DISNEY WORLD, CO., Lake Buena Vista Communities, Inc. d/b/a Disney's Dixie Landings Resort, Claim Verification, Inc.(CVI) and Daniel Keys, Private Investigator, Defendants.

Comerford & Britt, L.L.P., by W. Thompson Comerford, Jr., Winston-Salem, and Willardson & Lipscomb, L.L.P., by John S. Willardson, Wilkesboro, for plaintiff-appellants.

Smith & Moore, L.L.P., by J. Donald Cowan, Jr., Raleigh, and Richard A. Coughlin, Greensboro, for defendant-appellees.

JOHN, J.

Plaintiffs Dinah Wyatt (Mrs. Wyatt), Gary Wyatt, and Hunter Wyatt (plaintiffs) appeal the trial court's 12 February 2001 order granting the N.C.G.S. § 1A-1, Rule 12(b)(2) (2000), motion of defendants Disney World Co. (WDWCO) and Walt Disney World Hospitality & Recreation Corporation (HRC) (defendants) to dismiss plaintiffs' claims for lack of personal jurisdiction (defendants' motion to dismiss). For the reasons stated herein, we affirm the trial court.

Relevant factual and procedural information includes the following: In August 1994, plaintiffs, residents of Wilkes County, traveled to Walt Disney World Resort (the Resort) in Lake Buena Vista, Florida. Plaintiffs secured lodging at Dixie Landings, a hotel located at the Resort and owned at the time by Lake Buena Vista Communities, Inc., to which interest HRC subsequently succeeded. Shortly after plaintiffs' arrival at Dixie Landings, Mrs. Wyatt was injured in an accident involving the tram used by Dixie Landings to transport hotel customers from the registration desk to their rooms.

On 10 June 1997, plaintiffs filed the instant action against defendants in Wilkes County Superior Court alleging negligence and loss of consortium. Based upon the alleged conduct of defendants Claims Verifications, Inc. (CVI) and Daniel Keys (Keys) following CVI's retention by defendants to investigate the accident, plaintiffs also asserted claims of negligent and intentional infliction of emotional distress. Plaintiffs sought compensatory and punitive damages as well as counsel fees. The present appeal involves only WDWCO and HRC.

Defendants' motion to dismiss was filed 18 August 1999, and heard 22 January 2001. The trial court granted the motion in a 12 February 2001 order which recited, inter alia, the following findings of fact:

1. WDWCO is a Florida corporation qualified to do business and doing business in the State of Florida. Its principal business activities consist of ownership and operation of ... an entertainment complex located in Orange County, Florida known as the WALT DISNEY WORLD Resort.... It does not own or operate Dixie Landings Resort ... which is the hotel at which plaintiff Dinah Wyatt allegedly sustained her injury.
2. WDWCO is not qualified to do business in the State of North Carolina, ... has no office or place of business in North Carolina and has no officers, agents or employees in the State of North Carolina.... WDWCO ... [owns no] real property in North Carolina. It has no assets in North Carolina. All advertising for the WALT DISNEY WORLD Resort outside of Florida is purchased and placed on a regional or national basis, by entities other than WDWCO or HRC, and is not targeted to North Carolina....
3. HRC is a Florida Corporation qualified to do business and doing business in the State of Florida ... [which operates] a facility known as the Disney's Dixie Landings Resort located in Orange County, Florida.... HRC is not qualified to do business in the State of North Carolina.... has no office or place of business in North Carolina and has no officers, agents or employees in the State of North Carolina.... HRC ... [does not] own any real property in North Carolina. It has no assets in North Carolina.... HRC does not advertise or market itself outside the State of Florida. All advertising for the Disney's Dixie Landings Resort is acquired and placed on a regional or national basis, by entities other than HRC, and is not targeted to North Carolina....
4. HRC and WDWCO are separate and independent companies, and neither has an ownership interest in the other.... Furthermore, neither WDWCO nor HRC owns, operates or has any interest in The Disney Store, Inc., or any store operated by The Disney Store, Inc. In North Carolina....
5. All advertising for the various properties within the WALT DISNEY WORLD Resort outside of Florida is created on a regional or national basis and is not targeted specifically to North Carolina....
....
9. Pursuant to a services agreement, WDWCO hired CVI ... in Florida. CVI was hired to investigate plaintiffs personal injury claims that arose out of an incident that occurred in Florida.
10. CVI was an independent contractor retained by WDWCO. Keys was an employee of CVI. Neither WDWCO nor HRC instructed either CVI or Keys as to the manner or method by which CVI or Keys was to perform the investigation. Keys investigation involved only conducting surveillance of plaintiff Dinah Wyatt in public.
....
12. All alleged conduct of defendants WDWCO and HRC allegedly giving rise to plaintiffs' claims occurred in Florida.
13. Neither WDWCO nor HRC has maintained continuous and systematic contacts with North Carolina.
14. Neither WDWCO nor HRC purposefully directed its activities toward North Carolina or availed itself of the privilege of conducting activities within North Carolina, thus invoking the benefits and protection of its laws.
15. Neither WDWCO nor HRC could foresee being hailed into court in North Carolina for the claims set forth in plaintiffs' Complaint based on the evidence before the Court.
16. Any other contact of WDWCO or HRC with North Carolina alleged by plaintiffs [is] unsupported by competent evidence or, based on the competent evidence before the Court, are not attributable to either WDWCO or HRC.

Based upon its findings of fact, the trial court concluded as a matter of law that neither WDWCO nor HRC were subject to personal jurisdiction in North Carolina in the instant case. All plaintiffs' claims against WDWCO and HRC were thereupon dismissed for lack of personal jurisdiction. Plaintiffs appeal.

We observe initially that

[a]ny interested party shall have the right of immediate appeal from an adverse ruling as to the jurisdiction of the court over the person or property of the defendant[.]

N.C.G.S. § 1-277(b)(2000). Plaintiffs' appeal is thus properly before this Court.

Upon a defendant's personal jurisdiction challenge, the plaintiff has "the burden of proving prima facie that a statutory basis for jurisdiction exists." Godwin v. Walls, 118 N.C.App. 341, 347, 455 S.E.2d 473, 479, disc. review allowed, 341 N.C. 419, 461 S.E.2d 757 (1995) (citation omitted). Where unverified allegations in the plaintiff's complaint meet plaintiff's

initial burden of proving the existence of jurisdiction ... and defendant ... [does] not contradict plaintiff's allegations in [its] sworn affidavit,

Bush v. BASF Wyandotte Corp., 64 N.C.App. 41, 45, 306 S.E.2d 562, 565 (1983), such allegations are accepted as true and deemed controlling, id. However, when a defendant supplements its motion with affidavits or other supporting evidence, the allegations of the plaintiff's complaint "can no longer be taken as true or controlling and plaintiff[ ] cannot rest on the allegations of the complaint," Bruggeman v. Meditrust Acquisition Co., 138 N.C.App. 612, 615-16, 532 S.E.2d 215, 218, disc. review denied, 353 N.C. 261, 546 S.E.2d 90 (2000) (citation omitted), but must respond "by affidavit or otherwise ... set[ting] forth specific facts showing that the court has jurisdiction." Id.

Further,

[t]he determination of whether jurisdiction is statutorily and constitutionally permissible due to contact with the forum is a question of fact. The standard of [appellate] review of an order determining personal jurisdiction is 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.

Replacements, Ltd. v. MidweSterling, 133 N.C.App. 139, 140-141, 515 S.E.2d 46, 48 (1999) (citing Chadbourn, Inc. v. Katz, 285 N.C. 700, 208 S.E.2d 676 (1974)). Moreover, if the trial court's findings of fact resolving the defendant's jurisdictional challenge "are not assigned as error, the court's findings are `presumed to be correct,'" Inspirational Network, Inc. v. Combs, 131 N.C.App. 231, 235, 506 S.E.2d 754, 758 (1998) (citation omitted); see also Okwara v. Dillard Dep't Stores, Inc., 136 N.C.App. 587, 591, 525 S.E.2d 481, 484 (2000)

("contested finding of fact must be separately assigned as error, and the failure to do so results in a waiver of the right to challenge the sufficiency of the evidence to support the finding" on appeal).

In the instant case, plaintiffs introduced no evidence or affidavits at the hearing on defendants' motion nor have plaintiffs assigned error to any of the trial court's findings of fact.

In their single assignment of error, plaintiffs essentially assert the presence of federal due process requirements for assumption of personal jurisdiction, cf. Styleco, Inc. v. Stoutco, Inc. 62 N.C.App. 525, 526, 302 S.E.2d 888, 889,

disc. review denied, 309 N.C. 825, 310 S.E.2d 358 (1983) (appeal of adverse ruling on issue of personal jurisdiction properly directed at determination of whether North Carolina statutes permit our courts "to entertain this action against defendant[s], and, if so, whether this exercise of jurisdiction violates due process" (emphasis added)), and only cursorily address the applicability of North Carolina statutory authority, commonly referred to as our "long-arm statute," Dillon v. Funding Corp., 291 N.C. 674, 676, 231 S.E.2d 629, 630 (1977). Defendants have responded in kind, and we therefore likewise confine our discussion to this issue. See N.C.R.App. P. 10(a) (Court's review "confined to a...

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