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Carson v. Brodin9/16/2003
PUBLISHED
Defendant Kenneth R. Brodin appeals the trial court's denial of his motion to dismiss for lack of personal jurisdiction. For the reasons set forth below, we affirm the decision of the trial court.
BACKGROUND
Plaintiffs Steve and Pattie Carson are residents of Guilford County, North Carolina. In November 1993, they decided to build a vacation home in Virginia. They entered into a contract with defendant, a Virginia resident, to construct a home in the Water's Edge development on Smith Mountain Lake in Franklin County, Virginia.
The Water's Edge developer maintains a builder referral list for individuals who are interested in purchasing a lot in the community and having a qualified local builder build their residence. Prior to November 1993, defendant was listed as a qualified builder on the referral list. According to defendant's affidavit, this referral list was the full extent of his attempts to market his services to potential clients. His clients are typically referred to him by others based on his reputation, and he obtains clients primarily through business referrals and word of mouth. He has never had any offices, employees, or sales representatives in North Carolina, and he has never marketed his services in North Carolina.
Plaintiffs learned about defendant by consulting the builder referral list in Virginia. The initial contact between the parties came from plaintiffs and occurred in Virginia in November 1993. Before this contact, defendant had never spoken to plaintiffs, nor had he attempted to solicit or market his services to them.
In November 1993, plaintiffs went to Virginia and signed a contract with defendant for construction of their house. After problems developed with the lot that plaintiffs had purchased, they traded lots with the developer. Defendant executed a contract to build on the new lot and mailed it to plaintiffs in North Carolina. Plaintiffs signed the new contract in North Carolina and mailed it back to defendant.
After the contract was signed, defendant visited plaintiffs in North Carolina at least twice and possibly three times to discuss the construction project. Defendant also telephoned plaintiffs in North Carolina on numerous occasions. Additionally, defendant mailed invoices to plaintiffs in North Carolina, and plaintiffs sent payments from their bank account in North Carolina. Defendant completed construction on the home in July 1996.
In June 2001, plaintiffs sued defendant for breach of contract, breach of warranty, and negligence, all relating to the construction of their home in Virginia. Plaintiffs later amended the complaint to add Masonite Corporation ("Masonite") as a defendant and to allege additional claims for relief against both defendant and Masonite. In August 2001, Masonite served a notice, pursuant to 28 U.S.C. ยง 1441, to remove the action to the United States District Court for the Middle District of North Carolina. Also in August 2001, defendant moved to dismiss, to transfer venue, and filed an answer to the amended complaint in the United States District Court. Along with the motion to dismiss, defendant filed an affidavit addressing his contention that his contacts in North Carolina were not sufficient to give the state personal jurisdiction over him.
In September 2001, plaintiffs filed a motion to remand the case to Guilford County Superior Court. The magistrate judge recommended that plaintiffs' motion be granted, and the case was remanded to state court on 4 February 2002. On 2 May 2002, defendant noticed a hearing on his motion to dismiss, which the parties orally argued on 4 June 2002. The trial judge denied the motion, an
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