                                NO. COA13-1030

                      NORTH CAROLINA COURT OF APPEALS

                              Filed:     6 May 2014


GECMC 2006-C1 CARRINGTON OAKS,
LLC,
     Plaintiff,

    v.                                    Mecklenburg County
                                          No. 12 CVS 3684
SAMUEL WEISS and EZRA BEYMAN,
     Defendants.


    Appeal     by     defendant     Samuel     Weiss    from    order   entered

17 April 2013       by Judge    W. Robert Bell         in Mecklenburg    County

Superior Court.       Heard in the Court of Appeals 3 February 2014.


    McGuireWoods, LLP, by William O. L. Hutchinson, Steven N.
    Baker, and T. Richmond McPherson, III, for plaintiff–
    appellee.

    Copeland, Richards & Anderson, PLLC, by Shawn A. Copeland
    and Michael F. Anderson, for defendant–appellant Samuel
    Weiss.


    MARTIN, Chief Judge.


    Defendant Samuel Weiss (“defendant Weiss”) appeals from an

order    denying     his   motion   to     dismiss     the   Verified   Amended

Complaint    (“the    Complaint”)      filed   by   plaintiff   GECMC   2006-C1

Carrington    Oaks,    LLC    (“GECMC”)    pursuant     to   N.C.G.S.   § 1A-1,

Rule 12(b)(2).       We affirm.

    GECMC, a North           Carolina-based limited liability company,
                                          -2-
filed the Complaint in Mecklenburg County Superior Court against

defendant Weiss and against Ezra Beyman (“defendant Beyman”),

both citizens of Monsey, New York.                       In its Complaint, GECMC

alleged that it was the holder of a promissory note (“the Note”)

for $28,290,000.00 made by Empirian at Carrington Place, LLC

(“Empirian”)       to   Deutsche    Bank    Mortgage       Capital,      LLC    and   its

successors and assigns.             Defendant Beyman signed the Note as

president     of    Empirian,      which        is   a    Delaware-based        limited

liability     company     with     its    principal       place   of     business     in

Montvale, New Jersey.            The Note was secured by a deed of trust

“covering certain real property located in Mecklenburg County,

North Carolina.”

      Attached     to   the   Complaint      was     a    Guaranty      and    Indemnity

(“the Guaranty”) which expressly references the Note executed by

defendant     Beyman     as   President         of   Empirian.          The    Complaint

alleged that such Guaranty was signed by defendants Beyman and

Weiss.   The document expressly provides that defendants Beyman

and   Weiss        individually          “unconditionally         and     irrevocably

guarantee[] up to $6,240,000.00 of the principal balance of the

Loan,” until such time as certain specified conditions are met,

as when there is no event of default continuing.                         The Guaranty

also contains the following provision, entitled “Submission To

Jurisdiction”:
                                               -3-
             EACH GUARANTOR, TO THE FULL EXTENT PERMITTED
             BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND
             VOLUNTARILY, WITH AND UPON THE ADVICE OF
             COMPETENT COUNSEL, (A) SUBMITS TO PERSONAL
             JURISDICTION IN THE STATE IN WHICH THE
             PROPERTY IS LOCATED OVER ANY SUIT, ACTION OR
             PROCEEDING BY ANY PERSON ARISING FROM OR
             RELATING TO THIS GUARANTY, (B) AGREES THAT
             ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE
             BROUGHT IN ANY STATE OR FEDERAL COURT OF
             COMPETENT JURISDICTION SITTING IN THE COUNTY
             AND STATE IN WHICH THE PROPERTY IS LOCATED,
             (C) SUBMITS TO THE JURISDICTION OF SUCH
             COURTS, AND (D) AGREES THAT NEITHER OF THEM
             WILL BRING ANY ACTION, SUIT OR PROCEEDING IN
             ANY OTHER FORUM (BUT NOTHING HEREIN SHALL
             AFFECT THE RIGHT OF LENDER TO BRING ANY
             ACTION, SUIT OR PROCEEDING IN ANY OTHER
             FORUM).

      According to the Complaint, Empirian defaulted under the

terms   of      the        Note    and     GECMC      demanded        payment    for    the

indebtedness due, but Empirian refused and still refuses to pay,

and defendants Beyman and Weiss defaulted “for failure to pay

the   amounts    due       under    the    Note      and   the   Empirian       Guaranty.”

GECMC claimed that defendants breached their commercial guaranty

agreement with GECMC and sought to recover the principal amount

of $6,240,000.00, as well as interest accrued, reasonable costs,

and attorney’s fees.

      Defendant Weiss moved to dismiss the Complaint pursuant to

N.C.G.S. § 1A-1, Rules 12(b)(2), (b)(4), and (b)(5), for lack of

personal      jurisdiction,               insufficiency          of      process,       and

insufficiency         of    service       of    process,     respectively.             After
                                             -4-
conducting a hearing, the court denied defendant Weiss’s motion

to    dismiss    “to   the   extent         that    it    [sought]       dismiss[al]     for

insufficiency of process and service of process,” but deferred

ruling    on     the     motion    to        dismiss          for     lack    of     personal

jurisdiction to allow GECMC to “take jurisdictional discovery of

[d]efendant Weiss.”

       In his affidavit and in his briefs submitted in support of

his    motion    to    dismiss     for       lack        of    personal      jurisdiction,

defendant Weiss asserted that, although the Guaranty is signed

by what     “appears to be [his] signature”                         underneath the word

“GUARANTOR” and above the words “SAMUEL WEISS, an individual,”

defendant Weiss attested that he “was never presented with this

Guaranty Agreement,” and that he “did not sign and would not

have signed this Guaranty Agreement” because he “had no intent

to    expose    [him]self    in    a    manner       greater        than     [his]    capital

contribution.”

       In its briefs submitted in support of its opposition to

defendant      Weiss’s    motion       to   dismiss,          GECMC    acknowledged      that

defendant Weiss “admitted in his deposition testimony that he

did not know the contents of all the documents he executed in

connection with [this] transaction,” but argued that defendant

Weiss’s “failure to exercise diligence in executing the loan

documents does not provide [defendant Weiss] with a shield to
                                     -5-
avoid liability on the Guaranty Agreement after he benefitted

financially from the loan transaction before the loan went into

default.”     GECMC also submitted an affidavit from Dmitry Sulsky,

an   asset    manager   of   a   limited   liability     company,    the   sole

non-member manager of GECMC, and special servicer of the loan

that is the subject of this action.           Mr. Sulsky’s affidavit also

included as exhibits documents that he attests “are maintained

in the course of the regularly conducted business activities” of

his company, which include opinion letters from counsel involved

in the transaction at issue that repeatedly refer to defendants

Beyman and Weiss as the “Guarantors” of the transaction.

      After   conducting     a   hearing   and   considering   the   parties’

briefs and corresponding affidavits, on 17 April 2013, the trial

court entered an order in which it found that, “[a]s a condition

of making the loan to Empirian, Deutsche Bank required                     that

[d]efendant Samuel Weiss and [d]efendant Ezra Beyman execute a

guaranty agreement,” that “[d]efendant Weiss signed and executed

a guaranty agreement guaranteeing $6,240,000 of the principal

balance of the loan made to Empirian,” and that “[t]he guaranty

agreement executed by Weiss contains a ‘consent to jurisdiction’

clause   whereby    [d]efendant      Samuel      Weiss   ‘voluntarily      . . .

submit[ted] to personal jurisdiction in the State in which the

property is located.’”           The court then concluded that it had
                                                 -6-
personal jurisdiction over defendant Weiss “by virtue of the

agreement      in    which       [d]efendant           Weiss    expressly      submitted          to

jurisdiction        in     the    state      where       the    underlying         property       is

situated, North Carolina.”                  The trial court also concluded that

its    exercise       of     personal          jurisdiction        of     defendant            Weiss

“comports with Due Process and [that] the maintenance of suit

against     Samuel         Weiss       in    North       Carolina       does        not    offend

traditional         notions       of    fair     play     and    substantial          justice.”

Defendant Weiss appeals from the trial court’s 17 April 2013

denial    of    his      motion        to   dismiss       the    Complaint         pursuant       to

N.C.G.S. § 1A-1, Rule 12(b)(2).                        Defendant Beyman, against whom

the court entered a default judgment upon GECMC’s motion, is not

a party to this appeal.

                              _________________________

       Defendant Weiss first contends the trial court erred when

it concluded that it had personal jurisdiction over him because

he asserts that the court did not consider competent evidence

when   it   found        that     defendant        Weiss       “signed       and    executed       a

guaranty       agreement         guaranteeing          $6,240,000       of    the     principal

balance of the loan made to Empirian.”                           Thus, defendant Weiss

argues that the court erred by concluding that he “expressly

submitted      to    jurisdiction           in   the     state    where       the    underlying

property       is    situated,         North      Carolina,”       “by       virtue       of    the
                                           -7-
agreement.”     We disagree.

    Although defendant Weiss’s appeal is from an interlocutory

order, a defendant has “an immediate right of appeal from the

denial    of    their      motion     to    dismiss       for    lack     of    personal

jurisdiction.”           Retail    Investors,      Inc.    v.    Henzlik       Inv.   Co.,

113 N.C. App. 549, 552, 439 S.E.2d 196, 198 (1994); see also

N.C. Gen. Stat. § 1-277(b) (2013) (“Any interested party shall

have the right of immediate appeal from an adverse ruling as to

the jurisdiction of the court over the person or property of the

defendant      or     such    party    may       preserve       his     exception     for

determination upon any subsequent appeal in the cause.”).

    The     general       rule    requires       that   the     trial   court,     “as   a

prerequisite        to   exercising        jurisdiction,”         Retail       Investors,

Inc., 113 N.C. App. at 552, 439 S.E.2d at 198, make two basic

inquiries:      “(1) whether any North Carolina statute authorizes

the court to entertain an action against the defendant and if

so, (2) whether defendant has sufficient minimum contacts with

the state so that considering the action does not conflict with

‘traditional        notions   of    fair    play    and   substantial          justice.’”

Id. (quoting Johnston Cnty. v. R.N. Rouse & Co., 331 N.C. 88,

96, 414 S.E.2d 30, 35 (1992)).

    “A defendant may, however, consent to personal jurisdiction

and in such event, the two step inquiry is unnecessary to the
                                             -8-
exercise     of       personal    jurisdiction       over    the    defendant.”         Id.

“One    method        of   consenting      to    personal        jurisdiction     is   the

inclusion in a contract of a consent to jurisdiction provision.”

Id.    “This type of provision does not violate the Due Process

Clause and is valid and enforceable unless it is the product of

fraud or unequal bargaining power or unless enforcement of the

provision would be unfair or unreasonable.”                       Id.

       “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).                When, as here, “both the defendant

and    the   plaintiff         submit     affidavits    addressing        the    personal

jurisdiction issues,” see id., “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.”                    Id. at 694, 611 S.E.2d at 183

(alteration and omission in original) (internal quotation marks

omitted).            “If the trial court chooses to decide the motion

based on affidavits, [t]he trial judge must determine the weight

and sufficiency of the evidence [presented in the affidavits]

much   as    a       juror.”      Id.   (alterations        in    original)     (internal

quotation marks omitted).                 “When this Court reviews a decision
                                       -9-
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.”       Id. (internal quotation marks omitted).

      In the present case, at the hearing on defendant Weiss’s

motion     to   dismiss,   the    court        was    presented        with    evidence

consisting      of    defendant    Weiss’s           affidavit,        Mr.     Sulsky’s

affidavit,      and   defendant   Weiss’s       deposition,       as    well    as    the

exhibits accompanying each.         In his deposition, defendant Weiss

admitted that he did “about 15, 16 deals” involving real estate

in   different    states   with   defendant          Beyman’s    company,       one    of

which was the deal at issue in the present case concerning the

Carrington Oaks property in Mecklenburg County, North Carolina.

Defendant Weiss, who has between 20 and 25 years of experience

in real estate management and ownership, said that all of his

deals with defendant Beyman’s company would follow a particular

pattern:

            [T]his is the same example which I used with
            all the    investments that we did with
            [Empirian] which related to property. Let’s
            assume [a member of defendant Beyman’s
            company] would say that we are about to
            approach to buy a particular property in a
            particular state for $30 million, the cost
            to buy the property. Of the $30 million, he
            will    probably    get   from    the   bank
            approximately 20 to 22 million, about two-
            thirds, maybe a little bit more.    Then the
            cash equity required to establish such a
                                     -10-
             deal would be let’s say $8 million.          From
             the $8 million, we put up 75 percent, “we”
             meaning    our     family,    Beyman    puts   up
             25 percent.       We get a return on the
             75 percent first, and we have a 25 percent
             upside after everybody’s paid back——only if
             there’s an upside.        If there’s a certain
             return of 9 percent, 10 percent, 11 percent
             on the money, then there’s an upside, so if
             there’s an upside.      That’s a generalization
             of it.       Now, if we take $8 million,
             75 percent     of     that    is    approximately
             6 million, then I would call my family
             partners, I would tell them the deal’s
             coming up now, 6 million equity is required,
             how much do you feel you want to invest in a
             particular deal.       They would give me the
             numbers, I would put together the numbers.
             Sometimes it would be more than enough,
             sometimes it’s a little less, we’d ask
             somebody else to substitute. That’s how the
             deal was structured. . . . Once that was
             established, $6 million came out of the
             closing and was sent to one of the accounts
             which Beyman established.         The documents
             would be drafted by Beyman’s lawyer and
             reviewed by our lawyer, Elliot Gross.        Once
             the documents were signed, they could give
             fund    instructions,       and    the    funding
             instructions would follow via a wire.

Defendant    Weiss   also   said   that,    when    he   was   notified   that

documents were ready for him to sign regarding a transaction

with Beyman’s company, he went to a small conference room off of

the main lobby of the Dreier Law Firm, where he was met by

someone from the firm who “came out with approximately sometimes

30, 40, 45 signature pages” and told him that the papers were

“for   the    transaction,”    and    he    would    sign      those   papers.

Defendant Weiss said that, in these interactions at the firm, he
                                   -11-
would be presented with signature pages for multiple documents

for a particular deal and it would take him about five to ten

minutes to sign all of the papers presented to him at that time.

He said he “understood that these were the documents which the

law firm prepared on behalf of the bank [responsible for giving

the loan] at the time,” and that he did not ask anyone at the

firm for copies of any of the documents he signed.

       Here, as indicated above, defendant Weiss admitted that, of

the “15, 16 deals” he did with defendant Beyman’s company, he

“did one in North Carolina,” and agreed it was the Carrington

Oaks   property   in   Mecklenburg     County.    Defendant   Weiss   also

admitted that his company “[h]ad a loan for [Empirian], and the

loan   was   established   as,   you   know,   Carrington   Place   [sic].”

Additionally, defendant Weiss indicated that the procedure he

followed to execute the paperwork related to this transaction

was consistent with the procedure from his other dealings with

defendant Beyman’s company.       First, defendant Weiss was told by

his secretary to go to the Dreier Law Firm to sign documents

regarding the transaction.        Then, upon his arrival, the firm’s

receptionist called someone, who met him and escorted him into a

small room off of the lobby and presented him with “a bunch of

papers” that he was asked to sign.         After spending between five

and ten minutes signing between 25 to 35 documents, defendant
                                    -12-
Weiss then left without asking any questions about the contents

of the documents he was signing and without requesting copies of

the documents he was signing.        Defendant Weiss then admitted in

his deposition that the signature that appeared on the signature

page   of   the   Guaranty——which   had    “GUARANTOR”   typed   above   the

signature and “SAMUEL WEISS, an individual” typed below it——

“appear[ed] to be [his] signature.”           Perhaps because defendant

Weiss would not definitively admit or deny that he signed the

signature page of the Guaranty, plaintiff’s counsel questioned

defendant Weiss further.        When asked whether he was claiming

that the document contained a forged signature, whether someone

else signed his name, or whether the signature on the Guaranty

was    an   authentic   copy   of   his    signature,    defendant   Weiss

repeatedly responded, “I did not say that.”              Since it is the

responsibility of the trial court to determine the weight and

sufficiency of this evidence, based on our review of the record,

we conclude that there was competent evidence to support the

court’s finding that defendant Weiss signed and executed the

Guaranty that contained the consent to jurisdiction provision

that expressly submitted defendant Weiss to the jurisdiction of

the State of North Carolina.

       We note that     defendant Weiss     purports to argue that        he

cannot be bound to the consent to jurisdiction provision of the
                                       -13-
Guaranty because he cannot be bound to the terms of an agreement

that he signed but did not read.              However, it has long been held

in this State that “one who signs a paper writing is under a

duty to ascertain its contents,” Williams v. Williams, 220 N.C.

806, 809, 18 S.E.2d 364, 366 (1942), and “in the absence of a

showing   that   he     was   willfully    misled   or    misinformed     by   the

defendant as to these contents, or that they were kept from him

in fraudulent opposition to his request, he is held to have

signed with full knowledge and assent as to what is therein

contained.”      Id. at 809–10, 18 S.E.2d at 366.               Defendant Weiss

does not bring forward any argument in his brief that he was

“willfully    misled     or   misinformed”      about    the   contents   of   the

documents that comprised the transaction at issue, and suggests

only in a footnote and without support that, because he “did not

have a contract before him to read” during the five to ten

minutes   that     he    chose    to      spend   signing      between    25   to

35 signature pages of legal documents in the lobby of a law

firm, the proposition that he is charged with knowledge of the

contents of the contract at issue is misplaced.                 However, in the

absence of any allegation that the contents of the Guaranty were

“kept” from him in fraudulent opposition to his request, we find

defendant Weiss’s suggestion unpersuasive.

    Accordingly, we hold that the trial court did not err when
                                   -14-
it concluded that it had personal jurisdiction over defendant

Weiss “by virtue of the agreement in which [d]efendant Weiss

expressly    submitted   to   jurisdiction   in   the   state   where   the

underlying   property    is   situated,   North   Carolina.”    Moreover,

because we have determined that defendant Weiss consented to

personal jurisdiction by agreement, we need not consider the

arguments in his brief concerning whether the court correctly

determined that he had sufficient contacts with North Carolina

to allow the court to exercise personal jurisdiction over him in

this matter.    See Retail Investors, Inc., 113 N.C. App. at 552,

439 S.E.2d at 198.       Our disposition renders it unnecessary to

consider defendant Weiss’s remaining arguments on appeal and we

decline to do so.

    Affirmed.

    Judges ELMORE and HUNTER, JR. concur.
