Parker v. PfefferÂ

               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA19-1151

                                Filed: 20 October 2020

Wake County, No. 18 CVD 10869

BRADLEY E. PARKER, Plaintiff,

              v.

EMMA GRACE PFEFFER, Defendant.


        Appeal by plaintiff from judgment entered 7 August 2019 by Judge Christine

M. Walczyk in Wake County District Court. Heard in the Court of Appeals 26 August

2020.


        Williams Mullen, by Michael C. Lord, for plaintiff-appellant.

        Teague Rotenstreich Stanaland Fox & Holt PLLC, by Camilla F. DeBoard and
        Kara V. Bordman, for defendant-appellee.


        BERGER, Judge.


        On August 7, 2019, the trial court granted Emma Grace Pfeffer’s (“Defendant”)

motion to dismiss for lack of personal jurisdiction. Bradley E. Parker (“Plaintiff”)

appeals, arguing the trial court erred when it (1) failed to address Defendant’s Rule

12(b)(4) and 12(b)(5) motions before issuing its order on Defendant’s Rule 12(b)(2)

motion; (2) determined that it lacked personal jurisdiction over Defendant; and (3)

concluded that it did not maintain personal jurisdiction over Defendant when

Defendant’s contacts with North Carolina were continuous and systematic.         We

disagree.
                                 PARKER V. PFEFFER

                                  Opinion of the Court



                        Factual and Procedural Background

      On April 19, 2018, Plaintiff and Defendant were in a two-car accident in

Austin, Texas. In September 2018, Plaintiff filed an action for negligence in Wake

County District Court, and Defendant filed a motion in lieu of answer seeking

dismissal under North Carolina Rules of Civil Procedure 12(b)(2), (4), (5), and (6). On

October 31, 2018, Defendant filed an amended motion in lieu of answer and an

affidavit executed by Defendant. The affidavit asserted that Defendant is a citizen

of the State of Texas, and did not operate a business, possess property, maintain

financial accounts, or regularly visit North Carolina.

      On January 8, 2019, the trial court denied Defendant’s motion in lieu of answer

“because, absent any service of process, the [trial court did] not have subject matter

jurisdiction[,]” but “[o]nce the Complaint is served, Defendant [was] not barred from

asserting any Rule 12 defense she may have.” On February 22, 2019, Plaintiff filed

an unverified amended complaint accompanied by a certificate and affidavit of

service.   Defendant responded with a second motion in lieu of answer and an

appended affidavit contesting personal jurisdiction.

      On July 18, 2019, this matter came on for hearing. In granting Defendant’s

12(b)(2) motion, the trial court made the following undisputed findings of fact:

             1.    On or about April 19, 2018, Defendant and Plaintiff
             were involved in a motor vehicle accident (the “Accident”)
             that occurred at the intersection of East 7th Street and



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                    PARKER V. PFEFFER

                     Opinion of the Court



North Interstate 35 Frontage Road located in Austin,
Travis County, Texas.

2.    Plaintiff resides in North Carolina.

3.    Defendant resides in Texas.

4.    Defendant does not operate any business or conduct
any business in the State of North Carolina.

5.    Defendant founded a charity that performs annual
bike rides. Defendant solicits donations for this charity
online and through social media. Residents of North
Carolina are not excluded from these solicitations.

6.    Defendant does not maintain any financial accounts
including bank accounts in the State of North Carolina.

7.     Defendant does not own or lease any real property
in the State of North Carolina.

8.     Defendant visited the state of North Carolina on six
occasions prior to the accident on April 19, 2018, that is the
basis for the allegations in the Complaint. Her only
intention to return to the state of North Carolina is for her
brother’s wedding in October of 2019.

9.    Defendant has no current intention to engage in
business in North Carolina, drive through the state of
North Carolina, or use the roads of North Carolina other
than for her vacation in October of 2019 for her brother’s
wedding.

10.   Defendant has not shipped anything to Plaintiff in
North Carolina.

11.   Defendant exchanged twelve (12) text messages
with Plaintiff between May 1, 2018 and June 29, 2018 and
she spoke to him once on the telephone after Plaintiff
returned to North Carolina. Plaintiff initiated the text


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                           PARKER V. PFEFFER

                            Opinion of the Court



      message conversation and the content of the messages
      concerned the accident.

Based upon these findings of fact, the trial court concluded:

      1.     The Court relies on the two affidavits of Defendant
      and pleadings contained in the Court file in support of its
      decision below;

      2.    Plaintiff filed a Complaint on or about September 4,
      2018, requesting compensatory damages arising out of a
      motor vehicle accident that occurred on or about April 19,
      2018 in Austin, Harris County, Texas, and Plaintiff filed
      an amended complaint on February 22, 2019;

      3.     Defendant first filed a motion to dismiss pursuant to
      Rule 12(b)(2), (4), (5) and (6) of the North Carolina Rules of
      Civil Procedure that was denied without prejudice by the
      Honorable Michael Denning, to be refiled after service of
      the Complaint;

      4.    The contacts Defendant has had with the state of
      North Carolina are not such contacts Defendant would
      expect to be brought into court and subject to jurisdiction
      in North Carolina;

      5.     The accident upon which the Complaint is based has
      no connection to the limited prior or single planned future
      visitation of Defendant to the state of North Carolina;

      6.     The use of social media by the Defendant not
      specifically targeted at the state of North Carolina is not
      enough to establish jurisdiction or minimum contact[s] in
      North Carolina;

      7.    In review of the service in the Court file, the affidavit
      of service appears to have [been] properly served by
      Federal Express the Complaint;




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                                   PARKER V. PFEFFER

                                    Opinion of the Court



               8.    In review of the Court file and service, the motion to
               dismiss for personal jurisdiction is ripe and ready for
               determination by the Court; and

               9.     The Plaintiff has not established general or specific
               jurisdiction over the Defendant with regard to those
               matters alleged in the Complaint and this Action.

         The trial court denied Defendant’s Rule 12(b)(4) and 12(b)(5) motions to

dismiss and granted Defendant’s Rule 12(b)(2) motion to dismiss for lack of personal

jurisdiction. On September 3, 2019, Plaintiff entered written notice of appeal. While

this appeal was pending, Plaintiff filed a complaint in Travis County (Texas) District

Court.

                                  Standard of Review

         “When this Court reviews a decision as to personal jurisdiction, it considers

only 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.” Banc

of America Securities LLC v. Evergreen Intern. Aviation, Inc., 

169 N.C. App. 690

, 694,

611 S.E.2d 179

, 183 (2005) (citation and quotation marks omitted). “Competent

evidence is evidence that a reasonable mind might accept as adequate to support the

finding.” City of Asheville v. Aly, 

233 N.C. App. 620

, 625, 

757 S.E.2d 494

, 499 (2014)

(citation omitted).

                                        Analysis

         The trial court’s order dismissing this action is a final judgment, and appeal

therefore lies to this Court pursuant to N.C. Gen. Stat. § 7A-27(b).

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                                   PARKER V. PFEFFER

                                    Opinion of the Court



I. Service of Process

      Plaintiff first argues that the trial court erred by failing to address Defendant’s

Rule 12(b)(4) and 12(b)(5) motions before issuing its order on Defendant’s Rule

12(b)(2) motion. Because of personal jurisdiction’s fundamental nature, our courts

are not prohibited from reviewing a Rule 12(b)(2) motion prior to review of a Rule

12(b)(4) or 12(b)(5) motion, and Plaintiff’s argument is without merit. See Love v.

Moore, 

305 N.C. 575

, 579-80, 

291 S.E.2d 141

, 145 (1982) (holding that the court may

consider Rule 12(b)(2) motions prior to Rule 12(b)(4) and 12(b)(5) motions); see also

Prof’l Vending Servs., Inc. v. Michael D. Sifen, Inc., No. COA08-1383, 

2009 WL 2370683

, at *5 (N.C. Ct. App. Aug. 4, 2009) (unpublished) (“Although some issues

concerning the adequacy of service on certain of the [d]efendants are discussed in

[d]efendants’ brief, we do not believe that it is necessary for us to decide those service-

related issues given our resolution of the fundamental personal jurisdiction issue[.]”).

      Regardless, conclusions of law 7 and 8 contain mixed findings of fact and

conclusions of law. “The labels ‘findings of fact’ and ‘conclusions of law’ employed by

the trial court in a written order do not determine the nature of our review.”

Westmoreland v. High Point Healthcare Inc., 

218 N.C. App. 76

, 79, 

721 S.E.2d 712

,

716 (2012) (citation omitted).      Specifically, “[w]hen this Court determines that

findings of fact and conclusions of law have been mislabeled by the trial court, we

may reclassify them, where necessary, before applying our standard of review.” Cox



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                                   PARKER V. PFEFFER

                                    Opinion of the Court



v. Cox, 

238 N.C. App. 22

, 31, 

768 S.E.2d 308

, 314 (2014). “Where no exception is

taken to a finding of fact by the trial court, the finding is presumed to be supported

by competent evidence and is binding on appeal.” Johnson v. Johnson, 

259 N.C. App. 823

, 831, 

817 S.E.2d 466

, 473 (2018) (citation and quotation marks omitted). Because

Plaintiff does not specifically challenge conclusion of law 7 – “the affidavit of service

appears to have [been] properly served by Federal Express the Complaint” and

conclusion of law 8 – “the motion to dismiss for personal jurisdiction is ripe and ready

for determination by the Court[,]” these mislabeled findings are binding on our Court.

See id. at 

831, 817 S.E.2d at 473

(concluding that the trial court’s finding of fact was

binding on appeal because it was uncontested).             Therefore, Plaintiff sufficiently

served Defendant to effectuate review of personal jurisdiction under N.C. Gen. Stat.

§ 1-75.4(1).

II. Personal Jurisdiction

       When a defendant challenges personal jurisdiction pursuant to Rule 12(b)(2),

               a trial court may hold an evidentiary hearing including oral
               testimony or depositions or may decide the matter based
               on affidavits. . . . Of course, this procedure does not
               alleviate the plaintiff’s ultimate burden of proving personal
               jurisdiction at an evidentiary hearing or at trial by a
               preponderance of the evidence.

Bruggeman v. Meditrust Acquisition Co., 

138 N.C. App. 612

, 615, 

532 S.E.2d 215

, 217

(2000) (citation omitted). When “the trial court chooses to decide the motion based

on affidavits, the trial judge must determine the weight and sufficiency of the


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                                  PARKER V. PFEFFER

                                   Opinion of the Court



evidence presented in the affidavits much as a juror.” Banc of Am. Sec., 169 N.C.

App. at 

694, 611 S.E.2d at 183

(purgandum). It is not for this Court to “reweigh the

evidence presented to the trial court.” Don’t Do it Empire, LLC v. Tenntex, 246 N.C.

App. 46, 57, 

782 S.E.2d 903

, 910 (2016).

      When addressing the issue of personal jurisdiction on appeal, this Court

“employs a two-step analysis.” Skinner v. Preferred Credit, 

361 N.C. 114

, 119, 

638 S.E.2d 203

, 208 (2006). “First, jurisdiction over the action must be authorized by

N.C.G.S. § 1-75.4, our state’s long-arm statute.” Id. at 

119, 638 S.E.2d at 208

(citation

omitted).   “Second, if the long-arm statute permits consideration of the action,

exercise of jurisdiction must not violate the Due Process Clause of the Fourteenth

Amendment to the U.S. Constitution.” Id. at 

119, 638 S.E.2d at 208

.

      A.     Long-arm statute

      “[N.C. Gen. Stat. §] 1-75.4 is commonly referred to as the ‘long-arm’ statute.”

Dillon v. Numismatic Funding Corp., 

291 N.C. 674

, 676, 

231 S.E.2d 629

, 630 (1977).

Specifically, N.C. Gen. Stat. § 1-75.4 permits North Carolina courts to exercise

personal jurisdiction when,

             the claim arises within or without this State, in which a
             claim is asserted against a party who when service of
             process is made upon such party:

                    a.     Is a natural person present within this State;
                    or
                    b.     Is a natural person domiciled within this
                    State; or


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                                  PARKER V. PFEFFER

                                   Opinion of the Court



                    c.     Is a domestic corporation; or
                    d.     Is engaged in substantial activity within this
                    State, whether such activity is wholly interstate,
                    intrastate, or otherwise.

N.C. Gen. Stat. § 1-75.4(1) (2019).     “[B]y its plain language[, N.C. Gen. Stat. §

1-75.4(1)] requires some sort of ‘activity’ to be conducted by the defendant within this

state.” Skinner, 361 N.C. at 

119, 638 S.E.2d at 208

. “The burden is on the plaintiff

to establish itself within some ground for the exercise of personal jurisdiction over

defendant.” Golds v. Cent. Express, Inc., 

142 N.C. App. 664

, 666, 

544 S.E.2d 23

, 26

(2001) (purgandum).

      Here, the trial court reviewed Plaintiff’s unverified amended complaint and

Defendant’s affidavit. Plaintiff alleges in his unverified amended complaint that the

“Court has jurisdiction over [Defendant] due to, among other contacts, her

communication with [Plaintiff] about the subject matter of this action while he was

physically located in the State of North Carolina, and her visits to the State of North

Carolina (including the most recent visit in 2017).” Plaintiff argues that “[t]he facts

presented by the vehicular accident here fall within the circumstances outlined in

. . . N.C. Gen. Stat. § 1-75.4(1)d.” However, Plaintiff fails to specifically establish

under N.C. Gen. Stat. § 1-75.4(1)(d), that Defendant “engaged in substantial activity

within [North Carolina.]” N.C. Gen. Stat. § 1-75.4(1)(d).

      Rather, Plaintiff alleged that North Carolina has jurisdiction over Defendant

because she communicated with Plaintiff while he was in North Carolina. However,


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                                   PARKER V. PFEFFER

                                    Opinion of the Court



the trial court found that “Defendant exchanged twelve (12) text messages with

Plaintiff between May 1, 2018 and June 29, 2018 and she spoke to him once on the

telephone after Plaintiff returned to North Carolina. Plaintiff initiated the text

message conversation and the content of the messages concerned the accident.”

These communications were limited to discussion about repair estimates and

insurance claims which served to facilitate a potential out of court settlement without

resorting to litigation.

       The trial court’s unchallenged findings of fact are binding on this Court. See

Wyatt v. Walt Disney World Co., 

151 N.C. App. 158

, 163, 

565 S.E.2d 705

, 709 (2002)

(“[I]f 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” (citation

and quotation marks omitted)). Therefore, Plaintiff has failed to demonstrate that

Defendant’s mere correspondence satisfies the “substantial activity” requirement of

N.C. Gen. Stat. § 1-75(1)(d). See Miller v. Szilagyi, 

221 N.C. App. 79

, 92, 

726 S.E.2d 873

, 883 (2012) (finding no personal jurisdiction where defendant “made more than

100 telephone calls to [p]laintiff in North Carolina and that approximately 40

telephone calls and 25 emails were related to” the cause of action).

       In addition, the trial court found and the record reveals that “Defendant visited

the state of North Carolina on six occasions prior to the accident on April 19, 2018,

that is the basis for the allegations in the Complaint[, and h]er only intention to



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                                   PARKER V. PFEFFER

                                       Opinion of the Court



return to the state of North Carolina is for her brother’s wedding in October of 2019.”

Specifically, Defendant’s second affidavit reveals that the prior six visits relate to

family trips, visiting siblings at college, and visiting a friend from summer camp. See

Patrum v. Anderson, 

75 N.C. App. 165

, 168, 

330 S.E.2d 55

, 57 (1985) (concluding

there was no statutory basis for personal jurisdiction under N.C. Gen. Stat. §

1-75.4(1)(d) when “[t]he 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.”). Accordingly, Plaintiff has failed

to show that Defendant’s few vacations to North Carolina, which have no relation to

the traffic accident in Texas, constituted as “substantial activity” to satisfy the

purpose of N.C. Gen. Stat. § 1-75.4(1)(d).

       Because Plaintiff has failed to meet his burden of proving a statutory basis for

personal jurisdiction, we need not conduct a due process inquiry because any “further

inquiry will be fruitless.” Gray, Wilson G. North Carolina Civil Procedure § 85-1. See

also Skinner, 361 N.C. at 

119, 638 S.E.2d at 208

-09 (ceasing personal jurisdiction

analysis after review of “N.C.G.S. § 1-75.4(1)(d)’s very broad terms, the facts of this

case fail to invoke jurisdiction.”).

                                          Conclusion




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                                PARKER V. PFEFFER

                                 Opinion of the Court



      For the foregoing reasons, the trial court did not err when it granted

Defendant’s Rule 12(b)(2) motion to dismiss.

      AFFIRMED.

      Judges INMAN and COLLINS concur.




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