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Russell v. Tenore

Filed: December 1, 1981.

JOY RUSSELL
v.
PATRICK TENORE



Appeal by plaintiff from Allen, Judge. Judgment entered 9 February 1981 in Superior Court, Mecklenburg County. Heard in the Court of Appeals 12 November 1981.

Clark, Judge. Judges Hedrick and Martin (Harry C.) concur.

Clark

The sole question before this Court is whether the trial court acquired personal jurisdiction over defendant. A state court may assert jurisdiction over a nonresident defendant and bind him by its judgment only if the following elements exist: (1) a statutory ground for the exercise of jurisdiction over his person; (2) such minimum contacts with the state that it is fair to require him to defend within the state; and (3) proper service of process. Dillon v. Funding Corp., 291 N.C. 674, 231 S.E.2d 629 (1977); Globe, Inc. v. Spellman, 45 N.C. App. 618, 263 S.E.2d 859, disc. review denied, 300 N.C. 373, 267 S.E.2d 677 (1980). The manner of service of process is not disputed herein.

With respect to statutory authorization, G.S. 1-75.4(5)(a) provides that a state court has jurisdiction in any action which

"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; . . ."

It is well settled that a single contract can provide the basis of the exercise of jurisdiction over a nonresident defendant. McGee v. International Life Ins. Co., 355 U.S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957). If the contract is to be actually performed in North Carolina and has a substantial connection with this State, jurisdiction will lie. Phoenix America Corp. v. Brissey, 46 N.C. App. 527, 265 S.E.2d 476 (1980). Therefore, a promise by defendant to pay to plaintiff in North Carolina her portion of the purchase price for the restaurant, plus money she had advanced for its operation, could be sufficient to bring defendant within the provisions of G.S. 1-75.4(5)(a).

In her verified complaint plaintiff alleges that at the time of its filing, she was a citizen and resident of North Carolina. Other than this allegation, the record is devoid of any connection between North Carolina and the promise by defendant to pay the sale proceeds to plaintiff. Plaintiff relies upon the letter of 8 August 1977 from defendant to plaintiff in which he described the upcoming sale of the restaurant and told her he would send her the monies from the sale. However, the record shows no inside address on the letter nor is there an envelope indicating a North

Carolina address for plaintiff. Attached to this letter was a special power of attorney which defendant asked plaintiff to execute to enable him to handle the real estate closing. Plaintiff contends in her brief that defendant changed the state on the power of attorney from Illinois to North Carolina and then initialed the change. However, there is no evidence in the record that defendant actually made this change or that he signed his initials beside the correction. Therefore, the record contains no evidence whatsoever that plaintiff was a North Carolina resident at the time the contract between her and defendant was executed or that any correspondence from defendant was directed to her in North Carolina. We find the evidence insufficient to establish the requisite substantial connection between the transaction and this State.

We hold, therefore, that the jurisdictional statutory grounds are not present here so as to enable the courts of this State to exercise jurisdiction over the person of defendant.

The order of 9 February 1981 dismissing plaintiff's complaint for lack of personal jurisdiction is

Affirmed.

Disposit ...


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