Rose's Stores, Inc. v. Padgett

303 S.E.2d 344 (1983)

ROSE'S STORES, INC. v. Charles E. PADGETT, General Music Corporation, and Futures Management, Ltd.

No. 829SC515.

Court of Appeals of North Carolina.

June 7, 1983.

*347 Ward & Smith by David L. Ward, Jr., New Bern, and Perry, Kittrell, Blackburn & Blackburn by Charles F. Blackburn, Henderson, for plaintiff-appellee.

Nichols, Caffrey, Hill, Evans & Murrelle by Eugene W. Purdom, Greensboro, for defendant-appellant.

HEDRICK, Judge.

The defendant first argues the findings of fact are not supported by the evidence in the record. Futures contends that the trial judge erred in finding Padgett and Myers to be the sole shareholders during the period of activity complained of in the plaintiff's complaint on grounds that the record shows they did not become shareholders until 11 February 1980, almost a year after Padgett's employment was terminated with Roses. Futures argues that the findings pertaining to Padgett's "supervision" of Futures and his "business conversations" with Twisdale were erroneous because Twisdale's testimony was "not specific as to times or places" and because Twisdale had talked to Padgett only "eight or ten times since June 6, 1978." Futures further contends that the trial court's finding that Padgett brought a $18,897.36 check across North Carolina and deposited it in the Futures management account is "pure speculation." Finally, the defendant asserts there are not sufficient "minimum contacts" with North Carolina to establish personal jurisdiction.

The question of personal jurisdiction is controlled by a two-part determination: (1) a statutory basis must exist for finding personal jurisdiction and (2) the exercise of personal jurisdiction must meet the requirements of constitutional due process. Dillon v. Funding Corp., 291 N.C. 674, 675, 231 S.E.2d 629, 630 (1977). See Annot., 20 A.L. R.3d 1201 (1968). In this case, N.C.Gen. Stat. § 1-75.4 and § 55-145 set forth the applicable statutory requisites. The "minimum contacts" standard of International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945) controls the due process prong of the two-part test. The United States Supreme Court refined this standard in Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 1239, 2 L. Ed. 2d 1283 (1958):

The application of [the minimum contacts] rule will vary with the quality and nature of the defendant's activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.

See also Farmer v. Ferris, 260 N.C. 619, 133 S.E.2d 492 (1963); Chadbourn, Inc. v. Katz, 285 N.C. 700, 208 S.E.2d 676 (1974); and Buying Group, Inc. v. Coleman, 296 N.C. *348 510, 251 S.E.2d 610 (1979). "Since the requisite statutory authorization for personal jurisdiction is coextensive with federal due process, the critical inquiry in determining whether North Carolina may assert in personam jurisdiction over a defendant is whether the assertion thereof comports with due process." Kaplan School Supply v. Henry Wurst, Inc., 56 N.C.App. 567, 570, 289 S.E.2d 607, 609 (1982) (citations omitted).

The basis of plaintiff's claim against the defendant, Futures, is found in the critical allegations in the complaint that the defendant, Padgett, breached his fiduciary relationship as an employee of Rose's by using the defendant, Futures, as a vehicle to conceal the allegedly illegal commissions from General Music Corporation. The substance of plaintiff's claim against Futures is that Padgett was at all times Futures' alter ego, and that as such Futures was carrying on "substantial activity" in this state within the meaning of N.C.Gen.Stat. § 1-75.4(1)(d). The evidence, adduced at the hearing on the defendant's motion, tends to show that Futures stock was in the name of Vincent J. Mastracco, Jr. as nominee during the time that Padgett was allegedly receiving the "unlawful kickbacks" from General Music Corporation and that he and Myers eventually took the stock after he severed his relationship with the plaintiff. The evidence, therefore, does not support the court's finding that Padgett and Myers were the sole stockholders during the activities alleged in the complaint, but it is sufficient to raise the inference that Padgett and Myers were in control of the corporation, although officially they were not stockholders. The finding of fact that Padgett and Myers "directed and supervised the operation, management and financing of Futures Management, Ltd." is supported by Twisdale's testimony that he and Padgett discussed finances, merchandise and "what they were going to do with the business." The finding is further substantiated by Twisdale's statement that Myers often called to give him the amount of money Padgett was wiring to his Futures Investment account. Although Futures challenges the finding of fact that "Padgett repeatedly called Twisdale" by arguing that "eight to ten" phone calls does not constitute repeated contacts, we feel the trial judge's basic findings of fact as to Padgett's participation in Futures corporate business is supported by the evidence.

Also, we think there is sufficient evidence to raise a reasonable inference that Padgett deposited in Futures's account a check he had obtained from General Music Corporation for allegedly illegal commissions. There is no conclusive evidence that Padgett carried the same check across North Carolina and deposited it in the Futures account, but there was evidence presented at the hearing from General Music Corporation that Padgett did receive a check for $18,897.36 and Twisdale's deposition reveals that a deposit for precisely $18,897.36 was credited to Padgett's investment account with Futures. Even though all of the court's findings do not match up with evidence presented, every critical part of the findings of fact is substantiated by the evidence. Therefore, defendant's argument that the trial judge's findings of fact are not supported by the record is overruled.

We are also unconvinced by the contention that Futures did not have the requisite "minimum contacts" with North Carolina to establish jurisdiction. The judge's findings indicate Padgett had a number of financial and supervisory contacts with Futures. Thus, Padgett functioned as the alter ego of Futures while he was a resident of North Carolina. Since Padgett was a North Carolina resident during the period of the illegal activities alleged, he is clearly subject to personal jurisdiction in North Carolina, and since he acted as the alter ego of Futures, Futures is likewise subject to the jurisdiction of North Carolina courts. In addition, the evidence tends to show that agents of Futures made buying trips to North Carolina and on at least two occasions made purchases of musical recordings from General Music Corporation totalling several thousands of dollars.

*349 The order denying the defendant's motion to dismiss is

Affirmed.

VAUGHN, C.J., and ARNOLD, J., concur.