Greenhaus v. GoldsteinGreenhaus v. Goldstein
Wake Forest University School of Law, by John J. Korzen, for the plaintiffs-appellees.
Davis Hartman Wright, LLP, by R. Daniel Gibson, for the defendant-appellant.
TYSON, Judge.
Daniel Moshe Goldstein (“Defendant” or “Mr. Goldstein”) appeals from the trial court’s orders denying his motions to dismiss for lack of personal jurisdiction the complaints filed against him by Dan Greenhaus (“Plaintiff” or “Mr. Greenhaus”) and Leora Greenhaus (“Plaintiff” or “Mrs. Greenhaus”)(collectively “Plaintiffs”).
I. Background
Mrs. Greenhaus briefly dated Mr. Goldstein for approximately six months in
The Greenhauses allege in 2022, Mr. Goldstein began sending excessive and harassing communications to them and their friends, family, employers, and associates. Mrs. Greenhaus filed a complaint seeking a domestic violence protective order in Wake County District Court on 4 September 2024. The complaint alleged since 2022 Mr. Goldstein had sent approximately three thousand harassing and pornographic emails to her and her husband’s employers attempting to get them fired from their employment, and emails and pornographic images to colleagues, family members, members of the clergy associated with the Greenhauses, and their son’s schoolteachers. Mrs. Greenhaus alleged some of the emails include horrendous statements about the Greenhauses’ son.
The complaint also alleged Mr. Goldstein had stated he would “never stop” the harassment. The Greenhauses contacted the Raleigh Police Department and the Wake County District Attorney’s Office about Mr. Goldstein’s behavior.
Mr. Greenhaus also filed a complaint for a no-contact order for stalking or nonconsensual sexual conduct. The complaint alleged between April and June 2022, Mr. Goldstein had contacted him “directly or indirectly, for the purpose of harassment” more than four hundred times. The communications also included text messages, emails, mailings and packages directed towards his employers, family
Mr. Greenhaus further alleged Mr. Goldstein “has signed me up for multiple food orders at restaurants, with cash due on pickup, resulting in the restaurants calling me all day and night,” and Mr. Goldstein had sent obscene messages about him to his coworkers and social media connections. The complaint also alleged Mr. Goldstein had contacted government agencies to have Mr. Greenhaus’s EMT certification revoked, sent pornography to his place of employment, and Mr. Greenhaus’s “phone rings constantly from all the sales calls that [Mr. Greenhaus] signs me up for, as did [calls to his employer’s] phone from realtors.”
Mr. Goldstein was served with the summonses and complaints at an address in Texas. The trial court entered ex parte domestic violence protection and no-contact orders against Mr. Goldstein.
On 18 September 2024, Mr. Goldstein filed motions to dismiss the Greenhaus’s complaints under Rule 12(b)(2) and challenged personal jurisdiction of the Wake County District Court over him. The matter was heard on 27 September 2024.
At the hearing, Mr. Goldstein submitted a one-page affidavit, which had been signed the day before. It stated in its entirely: (1) he was a resident of Texas; (2) has never been to North Carolina; (3) does not plan to go to North Carolina; and, (4) has never, nor does he plan to, conduct business, participate in the market or enter into a contractual relationship in North Carolina. Mr. Goldstein offered no further evidence or testimony. Mr. and Mrs. Greenhaus both appeared and testified
II. Jurisdiction
This Court possesses jurisdiction pursuant to
III. Issues
Mr. Goldstein argues the trial court erred by: (1) applying the incorrect standard of proof to determine whether the court possessed personal jurisdiction over him; (2) making findings of fact, which are either recitations of the testimony or conclusions of law rather than proper findings of fact; (3) concluding the long-arm statute confers personal jurisdiction over him; and, (4) concluding Mr. Goldstein’s conduct created sufficient minimum contacts with the State of North Carolina to permit our courts to exercise personal jurisdiction over him under the Due Process Clause.
IV. 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.”
V. Burden of Proof
Mr. Goldstein first argues the trial court incorrectly applied the prima facie standard of proof instead of the preponderance of the evidence standard. His argument presumes issues of material fact exist, which are relevant to specific personal jurisdiction for the trial court to resolve. His arguments place the cart before the horse. Before we address the standard of proof, we review the actual issues presented to the trial court. If only questions of law were presented, and no issues of fact needed to be resolved, we need not consider the trial court’s findings of fact at all and we simply review the trial court’s conclusion of law de novo. Treadaway v. Payne, 279 N.C. App. 664, 668, 866 S.E.2d 479, 482 (2021).
Defendant argues his affidavit created an issue of fact the trial court needed to resolve by a preponderance of the evidence, but his affidavit did not deny, contradict, or refute the allegations of Plaintiffs’ complaints in any way.
Plaintiffs contend, correctly, “[t]his is a case of specific personal jurisdiction, because the Greenhauses’ causes of action arise from Goldstein’s contacts with the forum, which contacts he has not denied.” See, e.g., Toshiba Glob. Com. Sols, Inc. v. Smart & Final Stores LLC, 381 N.C. 692, 693, 873 S.E.2d 542, 545 (2022) (defining specific personal jurisdiction). If there is conflicting evidence before the trial court,
Several cases address the “typical” procedural postures of motions to dismiss for lack of personal jurisdiction, but this case does not fall neatly into the “typical” postures. “The standard of review to be applied by a trial court in deciding a motion under Rule 12(b)(2) depends upon the procedural context confronting the court.” Banc of Am. Sec. LLC v. Evergreen Int’l Aviation, Inc., 169 N.C. App. 690, 693, 611 S.E.2d 179, 182 (2005). This Court has recognized four procedural postures for a Rule 12(b)(2) motion and explained:
Three procedural postures are typical: (1) the defendant makes a motion to dismiss without submitting any opposing evidence; (2) the defendant supports its motion to dismiss with affidavits, but the plaintiff does not file any opposing evidence; or (3) both the defendant and the plaintiff submit affidavits addressing the personal jurisdiction issues.
Torres v. City of Raleigh, 288 N.C. App. 617, 621, 887 S.E.2d 429, 433 (2023) (citation and internal quotation marks omitted).
The Court further explained a fourth posture may exist when the trial court
“[I]f the parties submit dueling affidavits, the court may hear the matter on affidavits presented by the respective parties, or the court may direct that the matter be heard wholly or partly on oral testimony or depositions. If the trial court chooses to decide the motion based on affidavits, the trial judge must determine the weight and sufficiency of the evidence presented in the affidavits much as a juror. Further, where parties submit depositions to the trial court, and the court’s findings are replete with facts taken from these depositions, after holding a hearing on the question of personal jurisdiction where parties argue facts based on the depositions, such a case has moved beyond the procedural standpoint of competing affidavits to an evidentiary hearing. In such circumstances, the trial court must act as a fact-finder, and decide the question of personal jurisdiction by a preponderance of the evidence, because a plaintiff then has the ultimate burden of proving jurisdiction rather than the initial burden of establishing prima facie that jurisdiction was proper.”
Id. (quoting Parker v. Town of Erwin, 243 N.C. App. 84, 97, 776 S.E.2d 710, 721-22 (2015)).
Defendant and our dissenting colleague argue once the Greenhauses offered live testimony, their burden to prove personal jurisdiction became the more stringent preponderance of the evidence standard instead of the prima facie evidence standard. See id. Defendant and our dissenting colleague place this case in the fourth type of situation, with disputes of fact to be resolved, whether those allegations of fact are presented by affidavits, depositions, or testimony in court. We disagree. Defendant’s
A. Deer Corp. v. Carter
Defendant relies upon this Court’s decision in Deer Corp. v. Carter, 177 N.C. App. 314, 316, 629 S.E.2d 159, 162 (2006). In Deer Corp., both parties had submitted competing affidavits. Both parties also submitted depositions to the trial court, and its findings were replete with facts taken from the depositions. The court held a hearing on the question of personal jurisdiction in which no live testimony was offered, but both parties argued facts based upon the depositions. Id. at 322, 629 S.E.2d at 166. This Court concluded the “case had moved beyond the procedural standpoint of competing affidavits to an evidentiary hearing. As such, the trial court was required to act as a fact-finder and decide the question of personal jurisdiction by a preponderance of the evidence. Plaintiff therefore had the ultimate burden of proving jurisdiction rather than the initial burden of establishing prima facie that jurisdiction [was] proper.” Id. (citation and quotation marks omitted).
The Greenhauses argue Deer Corp. is not controlling precedent, because the court did not have “dueling” or “competing” affidavits to consider, which did not move the case into the fourth procedural posture. See Torres, 288 N.C. App. at 621, 887
The Greenhauses rely upon Mr. Goldstein’s affidavit not challenging or denying any of their allegations. His affidavit only averred he is a citizen and resident of Texas, has never visited North Carolina, does not conduct business, participate in the market, or entered into contractual relationships “centered” in North Carolina. The Greenhauses did not allege, dispute, or testify that Mr. Goldstein had done any of those things. In fact, the allegations of both the Greenhauses and Mr. Goldstein can all be true since Mr. Goldstein’s affidavit did not address the Greenhauses’ allegations at all. They allege he has sent harassing and often obscene and pornographic communications to them and their family, friends, employers and associates in North Carolina, and he maliciously ordered food to be delivered to their home, with payment due upon delivery. His affidavit did not address or deny any of these allegations.
A closer analysis of the relevant cases reveals the need for the trial court to make findings of fact based on a preponderance of the evidence is only triggered by a material conflict in the facts alleged by the opposing parties. In addition, cases addressing specific personal jurisdiction and general personal jurisdiction present
In this case, the issue is specific personal jurisdiction because Plaintiffs’ claims arise out of Defendant’s “alleged contacts with North Carolina.” Id. at 72, 698 S.E.2d at 763. We must “limit our review to a determination of whether specific jurisdiction exists.” Id. (citing Wells Fargo Bank, N.A. v. Affiliated FM Ins. Co., 193 N.C. App. 35, 45, 666 S.E.2d 774, 780 (2008) (“Because plaintiff’s contentions regarding [Appellant’s] minimum contacts relate to the events giving rise to this cause of action, we need not address whether general jurisdiction exists.”)).
B. Cameron-Brown Co., Parker and Bruggeman
In Cameron-Brown Co. v. Daves, a case relied upon by the Court in both Parker and Torres, this Court stated the need for findings of fact was triggered by the fact “the parties presented affidavits which materially conflicted.” Cameron-Brown Co. v. Daves, 83 N.C. App. 281, 285, 350 S.E.2d 111, 114 (1986) (emphasis supplied). In Parker, this Court noted “where ‘unverified allegations in the complaint meet plaintiff’s initial burden of proving the existence of jurisdiction . . . and defendant[s] . . . d[o] not contradict plaintiff’s allegations[ ], such allegations are accepted as true
In Bruggeman v. Meditrust Acquisition Co., the defendant had submitted an affidavit that “contradicts almost every material allegation in plaintiffs’ complaint,” and this Court noted, “where . . . [the] defendants submit some form of evidence to counter plaintiffs’ allegations, those allegations can no longer be taken as true or controlling and plaintiffs 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 (2000). See also ITG Brands, LLC v. Funders Link, LLC, 284 N.C. App. 322, 326, 876 S.E.2d 304, 308 (2022) (parties submitted “dueling affidavits”).
In all the cases cited regarding how the trial court should determine this issue, the pleadings or evidence of facts relevant to specific personal jurisdiction, whether by affidavit or otherwise, was conflicting. In all these cases, the substantive claims would be resolved based on entirely different facts than the facts regarding personal jurisdiction.
In Deer Corp., the substantive claims arose out of business relationships; the claims included breach of contract, misappropriation of trade secrets, tortious interference with contract and prospective economic advantage, civil conspiracy, punitive damages, and unfair and deceptive trade practices. Deer Corp. 177 N.C. App. at 316, 629 S.E.2d at 162. The trial court’s findings regarding the defendants’
In all the cases cited above, the finder of fact on the substantive claims would be a jury, if a jury trial was requested by a party. If the judge determined there was personal jurisdiction over the claims, and the judge may need to find some facts relevant to personal jurisdiction to make this legal determination, then the trier of fact, normally a jury, would reconcile the dispute and decide the substantive facts relevant to the defendant’s liability for the claim. The jurisdictional facts found by the judge would not predetermine the substantive liability issue if the judge decided not to dismiss for lack of personal jurisdiction.
Here, the jurisdictional facts and the facts supporting liability on the substantive claim are essentially the same, which is likely why Defendant’s affidavit simply failed to address Plaintiffs’ allegations at all. Instead, his affidavit solely addressed facts relevant to general personal jurisdiction, not specific personal jurisdiction. As a practical matter, if the trial court had made findings Defendant did in fact send the communications and engage in the actions as alleged by Plaintiffs, it
Defendant’s motion to dismiss for lack of personal jurisdiction was properly denied, and the trial court need not make any findings of fact that should be determined in the trial of the substantive issues. For these reasons, we agree with the Greenhauses. By presenting an affidavit that did not deny or even respond to the Greenhauses’ allegations in any way, Defendant did not present any “opposing evidence” and the case remained under the first procedural posture where a prima facie standard was appropriate. See Torres, 288 N.C. App. at 621, 887 S.E.2d at 433. (explaining a preponderance of the evidence standard is only required once a case moves into the fourth procedural posture). This argument is overruled.
VI. Findings of Fact
Mr. Goldstein argues this Court should disregard the following findings of fact, because they are either recitations of the testimony or conclusions of law rather than proper findings of fact. See In re A.C., 378 N.C. 377, 383-84, 861 S.E.2d 858, 867 (2021) (“According to well-established North Carolina law, [r]ecitations of the
VII. Personal Jurisdiction
Mr. Goldstein argues the trial court lacked personal jurisdiction over him because the record before the trial court does not show he was “soliciting” in North Carolina to meet the requirements of the long-arm statute, or that he had established minimum contact within our State.
Whether the court has personal jurisdiction over an out-of-state defendant is a two-step inquiry. Carson v. Brodin, 160 N.C. App. 366, 369, 585 S.E.2d 491, 494 (2003). The court first inquires whether the long-arm statute authorizes it to assert jurisdiction over the foreign party. Id. If so, the court next considers whether doing so would be consistent with the constitutional requirements of due process. Id.
A. Preservation of Error
The Greenhauses argue Mr. Goldstein failed to preserve his argument related to the long-arm jurisdiction statute for our review. They contend Mr. Goldstein moved to dismiss for lack of personal jurisdiction on a minimum contacts theory only and did not raise the long-arm statute before the trial court.
Mr. Goldstein’s Rule 12(b)(2) motion alleges:
Defendant is a citizen and resident of the State of Texas and does not satisfy the constitutional requirements necessary for North Carolina to exercise personal jurisdiction over the Defendant. Defendant does not have minimum contacts with the State of North Carolina.
While Mr. Goldstein’s motion does not specifically address the long-arm statute, the trial court specifically concluded personal specific jurisdiction is authorized under
In support of their position, the Greenhauses cite Mucha v. Wagner, 378 N.C. 167, 861 S.E.2d 501(2021). In that case, the defendant based his personal jurisdiction challenge in the trial court solely on lack of minimum contacts. Our Supreme Court held he had “failed to preserve his challenge to the trial court’s jurisdiction as exceeding the scope of North Carolina’s long-arm jurisdiction statute,
In Mucha, the trial court did not make any ruling on the long-arm statute. Here, the trial court specifically addressed and ruled upon the issue. Mr. Goldstein’s motion, which challenges personal jurisdiction in general terms, coupled with the trial court’s specific ruling on the long-arm statute, are sufficient to preserve this
B. Long-Arm Statute
Mr. Goldstein argues the trial court erred by concluding the long-arm statute confers personal jurisdiction over him. We disagree.
In both orders, the trial court concluded: “Personal specific jurisdiction is authorized in this matter under [N.C.] Gen. Stat. § 1-75.4(4)(a) given the Plaintiff’s contentions [asserting] Defendant’s activities in North Carolina have been continuous and systematic and directly related to Plaintiff’s cause of action.” The trial court relied on the portion of our “long-arm jurisdiction statute,” which authorizes personal jurisdiction over a person as follows:
(4) Local Injury; Foreign Act. — In any . . . action claiming injury to person or property within this State arising out of an act or omission outside this State by the defendant, provided in addition that at or about the time of the injury either:
a. Solicitation or services activities were carried on within this State by or on behalf of the defendant[.]
Mr. Goldstein specifically contends the record before the trial court failed to
The wife in Cooper alleged the girlfriend had contacted her husband by email and telephone to solicit the husband’s affections, thereby harming the wife and her marriage. Id. This Court held the emails and telephone calls “to solicit [the husband’s] affections and entice him to leave his family” constituted “solicitation” under the long-arm statute. Id.
Mr. Goldstein’s communications were also alleged to be of a solicitous nature, because they were designed to cause another person to take some action. Both Mr. and Mrs. Greenhaus alleged Mr. Goldstein had contacted individuals at their places of employment in North Carolina with baseless accusations “to get [him] fired.” Mr. Greenhaus also alleges the “sales calls he signs me up for” cause salespeople in North Carolina to constantly call his home and his place of employment. He further alleges Mr. Goldstein solicited North Carolina restaurants to deliver him food on a “cash on delivery” basis.
The communications alleged in the complaints include instances of Mr. Goldstein “requesting” from or “appealing” to another person to take some action.
C. Minimum Contacts
Mr. Goldstein also argues the trial court’s proper findings of fact do not support the conclusion he had sufficient contacts within the State to allow North Carolina to exercise jurisdiction over him. Although we disregard the findings of fact, as explained above, we disagree.
Once it is determined the long-arm statute authorizes jurisdiction over an out-of-state party, “[d]ue process requires that the defendant have ‘minimum contacts’ with the state in order to satisfy ‘traditional notions of fair play and substantial justice.’” Cooper, 140 N.C. App. at 734, 537 S.E.2d at 857 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 102 (1945)).
“The factors to consider when determining whether defendant’s activities are sufficient to establish minimum contacts are: ‘(1) the quantity of the contacts; (2) the quality and nature of the contacts; (3) the source and connection of the cause of action to the contacts; (4) the interests of the forum state, and[,] (5) the convenience to the parties.’”
Id. (quoting Fran’s Pecans, Inc. v. Greene, 134 N.C. App. 110, 114, 516 S.E.2d 647, 650 (1999)).
The Greenhauses allege the contacts Mr. Goldstein made to them and others within the State of North Carolina were solicitous, repetitive, extensive, and overwhelming. According to the Greenhauses, Mr. Goldstein made contacts to someone in North Carolina nearly 3,000 times concerning them, and nearly all of the communications were harassing, pornographic, humiliating, or fundamentally disturbing. The Greenhauses’ cause of action is based solely upon these extensive contacts. Defendant did not deny any of these allegations.
“North Carolina has a strong interest in protecting its citizens from local injury caused by the tortious conduct of a foreign citizen.” Cooper, 140 N.C. App. at 735, 537 S.E.2d at 858. Although Mr. Goldstein may be more inconvenienced by having to defend the alleged conduct in North Carolina, as opposed to his home state, we find this factor to be heavily outweighed by the other four factors. Id. Allowing the Greenhauses to bring these claims against Mr. Goldstein in North Carolina does not “offend[] traditional notions of fair play and substantial justice.” Id. This argument is overruled.
VIII. Conclusion
The trial court properly denied Mr. Goldstein’s motions to dismiss under Rule 12(b)(2). The trial court’s orders authorizing the exercise of personal jurisdiction over Mr. Goldstein are affirmed. It is so ordered.
AFFIRMED.
Judge STROUD Concurs
In my view, the trial court erred by applying the prima facie standard of proof after an evidentiary hearing on Defendant’s
I. Background
Plaintiffs allege their family has been the target of a campaign of obsessive and harassing conduct and communications by Defendant—a resident of Texas and one-time boyfriend of Mrs. Greenhaus decades ago. Litigation between Plaintiffs and Defendant commenced on 3 September 2024 when Mr. Greenhaus filed a verified complaint for a Chapter 50C civil no contact order. The next day, Mrs. Greenhaus filed an unverified complaint for a Chapter 50B domestic violence protective order. Plaintiffs prepared their complaints using Administrative Office of the Courts forms, which did not include pre-printed language or a checkbox alleging the existence of personal jurisdiction over nonresidents. Neither complaint explicitly alleged the existence of personal jurisdiction over Defendant.
Defendant moved to dismiss pursuant to
II. Discussion
A. Dispositive Issue
The parties agree that the trial court conducted an evidentiary hearing on the issue of personal jurisdiction. In my view, the dispositive issue is whether the trial court applied the appropriate standard of proof following the evidentiary hearing. After a thorough review of binding precedent, I would hold it did not. See Schaeffer v. SingleCare Holdings, LLC, 384 N.C. 102, 106, 884 S.E.2d 698, 703–04 (2023) (” ‘When the parties have submitted affidavits and other documentary evidence, a trial court reviewing a motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2) must determine whether the plaintiff has established that jurisdiction exists
B. 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 Am. Sec. LLC v. Evergreen Int‘l Aviation, Inc., 169 N.C. App. 690, 694, 611 S.E.2d 179, 183 (2005) (quoting Replacements, Ltd. v. MidweSterling, 133 N.C. App. 139, 140–41, 515 S.E.2d 46, 48 (1999)). But ” ‘when the pertinent inquiry on appeal is based on a question of law[,] . . . we conduct de novo review.’ ” Toshiba Glob. Com. Sols., Inc. v. Smart & Final Stores LLC, 381 N.C. 692, 699, 873 S.E.2d 542, 548 (2022) (stating that the Court would affirm the trial court’s personal jurisdiction ruling regardless of whether it reviewed for competent evidence or de novo) (quoting Da Silva v. WakeMed, 375 N.C. 1, 5, 846 S.E.2d 634, 638 (2020)).
Whether the trial court applied the proper standard of proof on a
C. Rule 12(b)(2) Motions
The North Carolina Rules of Civil Procedure apply in Chapter 50B and Chapter 50C actions, like all other civil actions filed in our General Courts of Justice, except as provided by statute. See
If a defendant challenges the trial court’s personal jurisdiction, the plaintiff bears “the initial burden of establishing prima facie that jurisdiction is proper.” Bruggeman v. Meditrust Acquisition Co., 138 N.C. App. 612, 615, 532 S.E.2d 215, 217 (2000). The applicable standard of review for a trial court on ” ‘a motion under Rule 12(b)(2) depends upon the procedural context confronting the court.’ ” Torres v. City of Raleigh, 288 N.C. App. 617, 620, 887 S.E.2d 429, 433 (2023) (quoting Banc of Am. Sec. LLC, 169 N.C. App. at 693, 611 S.E.2d at 182). Typically, a trial court encounters three procedural postures: ” ‘(1) the defendant makes a motion to dismiss without submitting any opposing evidence; (2) the defendant supports its motion to dismiss with affidavits, but the plaintiff does not file any opposing evidence; or (3) both the defendant and the plaintiff submit affidavits addressing the personal jurisdiction issues.’ ” Providence Volunteer Fire Dep’t v. Town of Weddington, 253 N.C. App. 126, 134, 800 S.E.2d 425, 432 (2017) (quoting Banc of Am. Sec. LLC, 169 N.C. App. at 693, 611 S.E.2d at 182).
In the first posture, the trial court “must decide whether the complaint contains allegations that, if taken as true, set forth a sufficient basis for the court’s exercise of personal jurisdiction.” Banc of Am. Sec. LLC, 169 N.C. App. at 693, 611 S.E.2d at 182. In the second posture, because the defendant supports its motion to dismiss with evidence, like an affidavit, “the complaint’s allegations can no longer be taken as true or controlling and the plaintiff cannot rest on the allegations of the complaint.” Providence, 253 N.C. App. at 134, 800 S.E.2d at 432 (cleaned up). “[T]o determine whether there is evidence to support an exercise of personal jurisdiction, the court then considers (1) any allegations in the complaint that are not controverted by the defendant’s affidavit and (2) all facts in the affidavit (which are uncontroverted because of the plaintiff‘s failure to offer evidence).” Banc of Am. Sec. LLC, 169 N.C. App. at 693–94, 611 S.E.2d at 182–83. On the first two postures, the trial court determines whether the plaintiff carried its initial burden to show prima facie that jurisdiction is proper. See Bruggeman, 138 N.C. App. at 615, 532 S.E.2d at 217.
In the third posture, adversarial parties each submit “affidavits or an affidavit and a verified complaint” addressing personal jurisdiction. Providence, 253 N.C. App. at 135, 800 S.E.2d at 432. We often describe these as “competing,” id. at 135, 800 S.E.2d at 432, or “dueling,” Torres, 288 N.C. App. at 621, 887 S.E.2d at 433. In this circumstance, ” ‘the court may hear the matter on affidavits presented by the respective parties, . . . [or] the court may direct that the matter be heard wholly or partly on oral testimony or depositions.’ ” Banc of Am. Sec. LLC, 169 N.C. App. at 694, 611 S.E.2d at 183 (quoting
In Torres, we recognized a fourth posture. 288 N.C. App. at 621, 887 S.E.2d at 433. Practically speaking, we subdivided the third posture to more clearly delineate the trial court’s responsibilities based on the nature and extent of evidence before it. See id. at 621, 887 S.E.2d at 433. The clearest indicator of the transition to the fourth posture is an evidentiary hearing, where the parties present live testimony, documentary evidence, or arguments based on limited jurisdictional discovery, such as depositions. See id. at 622, 887 S.E.2d at 434; Deer Corp. v. Carter, 177 N.C. App. 314, 322, 629 S.E.2d 159, 166 (2006); Parker v. Town of Erwin, 243 N.C. App. 84, 99, 776 S.E.2d 710, 722 (2015). Simply put, if the trial court receives evidence beyond affidavits addressing the issue of personal jurisdiction, it must ” ‘act as a fact-finder, and decide the question of personal jurisdiction by a preponderance of the evidence,’ with Plaintiff bearing ‘the ultimate burden of proving jurisdiction rather than the initial burden of establishing prima facie that jurisdiction was proper.’ ” Torres, 288 N.C. App. at 622, 887 S.E.2d at 434 (quoting Parker, 243 N.C. App. at 97, 776 S.E.2d at 721–22).
In this case, it is difficult to reconcile our precedent with the majority’s conclusion that this case remained in the first posture because Defendant did not present any “opposing evidence.” The majority reads “opposing” to mean materially conflicting, which in my view, misinterprets the rule defining the first posture.
It is similarly challenging to rationalize the majority’s approach to the trial court’s findings of fact. “Absent a request by one of the parties, the trial court is not required to make findings of fact when ruling on a motion.” Cameron-Brown Co. v. Daves, 83 N.C. App. 281, 285, 350 S.E.2d 111, 114 (1986) (affirming the grant of a defendant’s Rule 12(b)(2) motion to dismiss despite “materially conflict[ing]” affidavits). Unlike Cameron-Brown, where we examined the trial court’s presumed findings, Defendant requested and the trial court made written findings under the incorrect standard of proof. See id. at 285–88, 350 S.E.2d at 114–15. If it was true that prima facie was the proper standard of proof at this posture, why would findings reciting unrebutted testimony and allegations from the pleadings be impermissible?
Furthermore, I cannot fully agree that Defendant’s affidavit was devoid of information implicating specific personal jurisdiction.2 For example, placing food orders and filing licensure complaints could be reasonably construed as market participation. By choosing to hold an evidentiary hearing on personal jurisdiction,
Based on my reading of precedent, the trial court’s decision to conduct an evidentiary hearing, where it received documentary evidence and testimony from Plaintiffs, transitioned this matter to the fourth posture. See Torres, 288 N.C. App. at 621, 887 S.E.2d at 433. As a result, the trial court was required to “act as a fact-finder, and decide the question of personal jurisdiction by a preponderance of the evidence, with Plaintiff bearing the ultimate burden of proving jurisdiction rather than the initial burden of establishing prima facie that jurisdiction was proper.” See id. at 622, 887 S.E.2d at 434. Notably in Torres, we rejected an argument like the one advanced by Plaintiffs and accepted by the majority here. See id. at 622, 887 S.E.2d at 434 (The “[d]efendants contend that the evidence contained in [p]laintiff’s affidavits did not dispute the evidence pertaining to personal jurisdiction found in [d]efendants’ affidavits, and, therefore, this case should be considered from the second typical posture. However, this case is more appropriately considered from the fourth posture . . . .“) (emphasis added).
Contrary to the trial court’s ruling, after conducting an evidentiary hearing, it was necessary to determine the existence of personal jurisdiction by a preponderance
I am concerned the majority’s approach tends to upend settled principles of civil procedure. Distinguishing precedent is no substitute for applying it. I read our caselaw to indicate the four postures operate as a one-way street, based on the nature and extent of evidence before the trial court. Once the elements are present to move a case from the first to the second posture, the second to third posture, or from the third to the fourth posture, it seems illogical and contrary to precedent to permit the case to revert to the first posture. My colleagues appear to ground their analysis on a procedural methodology the trial court could have used, while sidestepping the procedural methodology the trial court applied. It is undisputed that the trial court conducted an evidentiary hearing on the issue of personal jurisdiction and applied a prima facie standard of proof in its order. Throughout my legal research, I found no precedent tending to allow a prima facie determination as to personal jurisdiction
If the cold record was better developed, my vote would likely be to remand for additional findings of fact under the proper standard of proof, with the taking of new or additional evidence at the trial court’s discretion. In the instant case, however, Defendant “was unable to obtain a transcript of the 27 September 2024 evidentiary hearing” as the Clerk of Court could not locate the recording. For this reason, I would instruct the trial court to hold a new evidentiary hearing on the record.
The result might not change if the trial court applied the proper standard of proof on remand. In a common law system, however, where our reasoning carries the potential to influence untold future cases across the state, objective adherence to precedent must take priority over a preferable result. Because the trial court’s error held Plaintiffs to a less-exacting standard of proof than was required at this posture, I would reverse and remand for a new evidentiary hearing on personal jurisdiction. Therefore, I respectfully dissent.