Forman & Zuckerman, P.A. v. Schupak , 31 N.C. App. 62 ( 1976 )

228 S.E.2d 503 (1976) 31 N.C. App. 62

FORMAN & ZUCKERMAN, P. A.
v.
Donald SCHUPAK, Eric D. Rosenfeld, and Peter D. Fischbein, Individually, and partners trading as Schupak, Rosenfeld and Fischbein.

No. 7618SC308.

Court of Appeals of North Carolina.

October 6, 1976.

Forman & Zuckerman, P. A. by William Zuckerman, Greensboro, for plaintiff-appellee.

Schupak, Rosenfeld & Fischbein by Peter D. Fischbein, New York City, appearing pro se and for defendant-appellants.

MORRIS, Judge.

Defendants contend that their activity does not bring them within the scope of G.S. 1-75.4, one of North Carolina's so-called "long arm" statutes. We disagree.

G.S. 1-75.4 sets forth the general grounds for personal jurisdiction by the courts of North Carolina over a nonresident defendant and reads in pertinent part:

"A court of this State having jurisdiction of the subject matter has jurisdiction over a person served in an action pursuant to Rule 4(j) of the Rules of Civil Procedure under any of the following circumstances:

.....

(5) Local Services, Goods or Contracts. — In any action which:

a. Arises out of a promise, made anywhere to the plaintiff or to some third party for the plaintiff's benefit, by the defendant to perform services within this State or to pay for services to be performed in this State by the plaintiff; or

b. Arises out of services actually performed for the plaintiff by the defendant within this State, or services actually performed for the defendant by the plaintiff within this State if such performance was authorized or ratified by the defendant . . .." (Emphasis supplied.)

Thus, if defendants promised to pay for plaintiff's services or if these services were actually performed for defendants with their authorization or ratification, the provisions of G.S. 1-75.4 would apply, and defendants would be subject to the in personam jurisdiction of the courts of this State. Defendants, however, deny that they requested or promised to pay for plaintiff's services and that services were performed for them. In other words, defendants maintain that they, as attorneys, were acting solely in their representative capacity and that their client was the party responsible for payment to plaintiff. We cannot agree.

In Burt v. Gahan, 351 Mass. 340, 220 N.E.2d 817 (1966), a partnership of stenographic reporters employed to transcribe a pre-trial hearing sued the attorney personally to recover for services rendered. The issue was whether the attorney could be held responsible for such services ordered by him but without explicit agreement as to payment. In holding the attorney personally liable for these costs, the Court stated that

"While in a broad sense counsel may be an agent and his client a principal there is much more involved than mere agency. The relationship of attorney and client is paramount, and is subject to established professional standards. In short, the attorney, and not his client, is in charge of litigation, and is so recognized by the court.

.....

We therefore deem the just and equitable rule of law thus established to be that, in the absence of express notice to the contrary, court officials and persons connected, either directly or indirectly, with the progress of litigation, may safely regard themselves as dealing with the attorney, instead of with the client." 351 Mass. at 342-43, 220 N.E.2d at 818-19.

We also find the case of Meany v. Rosenberg, 28 Misc. 520, 59 N.Y.S. 582 (1899), to be particularly enlightening on this point. In Meany, plaintiff's assignor was a Washington, D.C., attorney who was hired by defendant, a New York attorney, to defend one of defendant's clients in a lawsuit brought in Washington. The New York court held that an attorney, employed directly by another lawyer to defend a case for the latter's client, may recover for such services from the lawyer, even though the client would also have been liable. See also Morris v. Silver, 312 Ill.App. 472, 38 N.E.2d 840 (1942). Applying these rules to the case now before us, we are of the opinion that plaintiff's claim arose out of a promise made by the defendants and involved services actually performed for the defendants which they authorized and ratified. Consequently, the contract between these parties falls within the provisions of G.S. 1-75.-4(5)a. and b.

Defendants nonetheless contend that even if their activity comes within G.S. 1-75.4, application of that statute to them in this instance violates the due process requirements guaranteed by the United States Constitution. Again, we disagree. The constitutional limitation on the power of a court to acquire in personam jurisdiction over a nonresident defendant was set out in the landmark case of International Shoe Co. v. Washington, 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154, 90 L. Ed. 95 (1945), where it was held that "due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ``traditional notions of fair play and substantial justice.'" 326 U.S. at 316, 66 S.Ct. at 158, 90 L. Ed. at 102. Provisions of the North Carolina long arm statutes represent a legislative attempt to assert in personam jurisdiction to the full extent permitted by the due process clause. First-Citizens Bank & Trust Co. v. McDaniel, 18 N.C.App. 644, 197 S.E.2d 556 (1973). Here, defendants sought out plaintiff to assist them in performance of professional services for one of their clients by handling litigation in courts located in North Carolina; defendants supervised the work product of plaintiff; on at least three occasions, one of the defendants came to North Carolina where he attended hearings and otherwise directly participated in the legal services being performed. We believe that defendants, through their course of conduct, had sufficient minimum contacts with North Carolina and that this lawsuit "does not offend ``traditional notions of fair play and substantial justice." The order is

Affirmed.

VAUGHN and CLARK, JJ., concur.