Chemical Realty v. Home F. Sav. & L., Etc.

253 S.E.2d 621 (1979)

40 N.C. App. 675

CHEMICAL REALTY CORPORATION v. HOME FEDERAL SAVINGS & LOAN ASSOCIATION OF HOLLYWOOD.

No. 7828SC420.

Court of Appeals of North Carolina.

April 17, 1979.

*623 Grier, Parker, Poe, Thompson, Bernstein, Gage & Preston by Sydnor Thompson and Fred T. Lowrance, Charlotte, and Van Winkle, Buck, Wall, Starnes, Hyde & Davis by Herbert L. Hyde, Asheville, for plaintiff-appellee.

John E. Raper, Jr., and Reginald M. Barton, Jr., Fayetteville, for defendant-appellant.

ARNOLD, Judge.

Home Federal's argument that this action should have been dismissed for lack of subject matter jurisdiction is without merit. Original civil jurisdiction "is vested in the aggregate in the superior court division and the district court division as the trial divisions of the General Court of Justice." G.S. 7A-240. And where the amount in controversy exceeds $5,000, the superior court is the proper division for the trial. G.S. 7A-243. This action was brought appropriately in superior court.

Home Federal argues that none of the circumstances which would give the North Carolina courts personal jurisdiction over it exists in this case. In determining this question we consider North Carolina's long-arm statutes, since it is stipulated that Home Federal is a federal savings and loan association with its principal office in Hollywood, Florida, and that it has not applied for authority to transact business in North Carolina or appointed a local agent for service of process.

G.S. 55-145(a) provides that "[e]very foreign corporation shall be subject to suit in this State . . . on any cause of action *624 arising . . . (1) Out of any contract made in this State or to be performed in this State . . .." Home Federal contends that the permanent loan commitment was made not in North Carolina, but in Florida; that the "Letter Agreement" referred to in Chemical's complaint was in fact not an agreement, but an "estoppel certificate"; and that performance of any commitment was to take place in Florida.

For a contract to be made in North Carolina, the final act necessary to make it a binding obligation must be done here. Goldman v. Parkland of Dallas, Inc., 7 N.C.App. 400, 173 S.E.2d 15, aff'd 277 N.C. 223, 176 S.E.2d 784 (1970). In Goldman, a letter was sent to the North Carolina plaintiff from Atlanta, Georgia, instructing him: "If the above is agreeable, please sign and return the original copy of this letter." Plaintiff signed the letter in Greensboro, North Carolina, and deposited it in the mail there addressed to a Texas corporation. This Court found that the final act necessary in that case to create a binding obligation was the depositing of the letter containing the plaintiff's signature in the mail.

In the present case, three communications between the parties make up the permanent loan commitment. On 14 April 1972, Home Federal sent the permanent loan commitment letter to a North Carolina mortgage broker for forwarding to the borrower. This letter stated: "I am enclosing a copy of this letter for your acceptance. Receipt of same, executed by the borrower, together with the commitment fee of $60,000.00 must be acknowledged by May 15, 1972 or this commitment letter will be automatically cancelled." On 15 May 1972 the borrower executed a copy of the commitment letter and delivered it with a cover letter and the commitment fee to the mortgage broker, who mailed the letters and fee to Home Federal. The borrower's cover letter stated: "Attached please find copy of Commitment accepted by me on behalf of Asheville Development Associates as well as check for $60,000. We respectfully request that the following items and points of clarification be added to and made a part of captioned Commitment . . .." On 24 May 1972 Home Federal wrote back to the mortgage broker: "Please be advised that this Association is in receipt of $60,000.00 tendered by Asheville Development Associates. This letter is to confirm that our mortgage commitment dated April 14, 1972, is in full force and effect subject to three items. . . ."

Home Federal would have us find that the borrower's cover letter of 15 May was not an acceptance, but a counter-offer, and that Home Federal's letter of 24 May was the acceptance of this counter-offer and the final act necessary to create a binding contract. We see no support for this position in the communications involved. The borrower's letter of 15 May by its terms accepts the permanent loan commitment and requests three added "points of clarification" which do not change the essential nature of the commitment. The acceptance is not made conditional upon addition of the requested points. See 17 C.J.S. Contracts § 43. Nor does Home Federal by its letter of 24 May treat the borrower's letter as a counter-offer; it merely acknowledges receipt of the commitment fee and confirms the mortgage commitment. We find that the contract was completed by the borrower's acceptance in North Carolina of the permanent loan commitment. As a result, G.S. 55-145(a)(1) applies to give the North Carolina courts personal jurisdiction over Home Federal.

Home Federal next contends that even if the statutory standards for jurisdiction are met, the constitutional requirements of due process are not. This contention is untenable. In Equity Associates v. Society for Savings, 31 N.C.App. 182, 228 S.E.2d 761, cert. den. 291 N.C. 711, 232 S.E.2d 203 (1976), we found, based upon a fact situation practically identical to the one before us, that the contract itself was sufficient to satisfy the "minimum contacts" requirement of International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945). Also, here, as in Equity Associates, other factors set out in Byham v. National Cibo House Corp., 265 *625 N.C. 50, 143 S.E.2d 225 (1965), for satisfying the test of "minimum contacts" and "fair play" are present. It is stipulated that Home Federal received actual notice of the action. Since the hotel which was the subject of the loan was constructed here, it seems clear that "crucial witnesses and material evidence," id., at 57, 143 S.E.2d at 231, also will be found here. Home Federal has availed itself of the benefits and protections of our laws not only by the instant contract, but also by a permanent loan commitment for a $2,500,000 loan for an apartment project in Jacksonville, North Carolina. That loan is secured by a deed of trust filed in North Carolina, and is being serviced by the North Carolina mortgage broker who arranged the loan in this action. Due process is satisfied.

Chemical's complaint and summons named as defendant "Home Federal Savings and Loan Association." Home Federal assigns as error the granting of Chemical's motion to amend these documents so that the defendant's name appears as "Home Federal Savings and Loan Association of Hollywood." As Chemical points out, it was entitled to amend its complaint as a matter of right, since no responsive pleading had been filed. G.S. 1A-1, Rule 15(a). Amendment of the summons may be allowed by the court in its discretion "unless it clearly appears that material prejudice would result to substantial rights of the party against whom the process issued." G.S. 1A-1, Rule 4(i). Home Federal has not shown any prejudice that resulted from this misnomer. It is stipulated that Home Federal received the complaint and summons and knew that they were meant for it. We find no error in the court's ruling. Accord Bailey v. McPherson, 233 N.C. 231, 63 S.E.2d 559 (1951); Propst v. Hughes Trucking Co., 223 N.C. 490, 27 S.E.2d 152 (1943).

Home Federal contends that its motion to amend certain findings of fact and conclusions of law in the trial court's order should have been granted because the findings are not supported by the evidence. Where the trial judge finds the facts, they are conclusive on appeal if there is evidence to support them, even if there is also evidence to the contrary. Whitaker v. Earnhardt, 289 N.C. 260, 221 S.E.2d 316 (1976); Cox v. Cox, 33 N.C.App. 73, 234 S.E.2d 189 (1977). We have examined the contested findings and have found that each is based upon competent evidence.

Home Federal finally argues that certain findings and conclusions should be stricken because they are irrelevant to the issues before the court at the hearing on the motion. We find that all the challenged determinations resulted from issues raised by Home Federal in its motion. This assignment of error is unfounded.

We have considered Home Federal's other assignments of error and find that they are without legal merit.

Affirmed.

MORRIS, C. J., and CLARK, J., concur.