Patrum v. Anderson ( 1985 )

330 S.E.2d 55 (1985)

Bruce PATRUM
v.
M.C. ANDERSON.

No. 8418DC1016.

Court of Appeals of North Carolina.

June 4, 1985.

Hunter, Hodgman, Greene & Donaldson by Robert N. Hunter, Jr., Greensboro, for plaintiff-appellee.

Booth, Harrington, Johns & Campbell by David B. Puryear, Jr., Greensboro, for defendant-appellant.

ARNOLD, Judge.

This case is properly before us pursuant to G.S. 1-277(b). It presents a single issue: whether the trial court correctly denied defendant's motion to dismiss for lack of in personam jurisdiction. We hold that the trial court erred and therefore we reverse.

The defendant first contends that the trial judge made several findings of fact which are not supported by any competent evidence in the record.

We agree that Findings of Fact 15 and 16 have no support in the record. In Finding of Fact 15, the trial court found that defendant could foresee and expect that plaintiff as his agent would exert effort and incur expenses in North Carolina in furtherance of his obligations under the agreement. In Finding of Fact 16 the trial judge found that the plaintiff, as defendant's agent, did exert efforts and incur expenses in North Carolina.

The record, however, contains no evidence as to where plaintiff searched for buyers, or that he gave defendant any indication that he would look in North Carolina. Defendant's testimony does not indicate that he had any expectation that plaintiff would look in North Carolina or knowledge that he did look there. The fact that plaintiff is resident in North Carolina does not mean necessarily that he performed, or should have been expected to perform, the parties' agreement in North Carolina. Further, "the mere act of entering into a contract with a North Carolina resident does not constitute the necessary minimum contacts for the exercise of jurisdiction over a non-resident...." Time Corp. v. Encounter, Inc., 50 N.C.App. 467, 471, 274 S.E.2d 391, 393 (1981). The eventual buyer, we note, was apparently from Texas.

We also agree that Findings of Fact 20 and 21 have no support in the record. Finding of Fact 20 states that:

M.C. Anderson conducted regular and systematic business under the protection of the laws of North Carolina with the Plaintiff.

Finding of Fact 21 states that:

M.C. Anderson conducts regular and systematic business under the protection of the laws of North Carolina in that M.C. Anderson Construction Company, a sole proprietorship, in the normal course of its daily operations takes bids and conducts business with suppliers of construction equipment and construction supplies located in the State of North Carolina.

The record shows that on six occasions defendant ordered souvenir caps or cars from plaintiff's company in North Carolina, that defendant occasionally came to North Carolina to watch auto races, and that he owned a racing team which entered cars in North Carolina races. These "purchases and related trips" do not constitute regular and systematic business in North Carolina. See Helicopteros Nacionales de Colombia v. Hall, ___ U.S. ___, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984). Further, we see nothing in the record which indicates that the M.C. Anderson Construction Company "in the normal course of its daily operations takes bid and conducts business with suppliers of construction equipment and construction supplies located in the State of North Carolina."

Since the record lacks competent evidence that plaintiff was to perform or performed the agreement in North Carolina, or that defendant engaged in substantial activity in North Carolina, we do not find any statutory basis for personal jurisdiction over defendant. See G.S. 1-75.4(1)(d), (5).

Moreover, since there is no evidence to support the finding that defendant conducted regular and systematic business in North Carolina, the courts of North Carolina have no general jurisdiction over defendant consistent with due process. Helicopteros, ___ U.S. at ___, 104 S.Ct. at 1874, 80 L. Ed. 2d at 413.

The agreement itself also fails to give North Carolina specific jurisdiction over defendant consistent with due process. There is no evidence linking plaintiff's business activity on behalf of defendant to North Carolina, nor is there any evidence showing defendant was in North Carolina for any purpose connected with the agreement. Nothing in the record indicates that, by entering into an agency agreement with plaintiff, defendant purposely availed himself of the benefits and protections of our laws. Phoenix America Corp. v. Brissey, 46 N.C.App. 527, 532, 265 S.E.2d 476, 480 (1980).

As the trial court found, the "crucial witnesses and material evidence are evenly distributed between the States of North Carolina and Georgia."

We hold that the assertion of in personam jurisdiction over the defendant is not authorized by our statutes and violates due process.

Reversed.

MARTIN and PARKER, JJ., concur.