                            NO. COA13-251

                   NORTH CAROLINA COURT OF APPEALS

                         Filed: 7 January 2014


KRISTIN BERRIER, individually and
in her capacity as Administrator
of the Estate of JACOB ALEXANDER
BERRIER, deceased, and JUSTIN
BERRIER, in his capacity as
Administrator of the Estate of
JACOB ALEXANDER BERRIER, deceased,
     Plaintiffs,

        v.                           Guilford County
                                     No. 11 CVS 10349
CAREFUSION 203, INC., CAREFUSION
CORPORATION, LINCARE INC. d/b/a
PEDIATRIC SPECIALISTS, LINCARE
HOLDINGS, INC. d/b/a PEDIATRIC
SPECIALISTS, JONMARK MAYES,
SHELLEY R. BOYD, MASIMO
CORPORATION, MASIMO AMERICAS,
INC., and QUALITY MEDICAL RENTALS,
LLC,
     Defendants.


     Appeal by defendant Quality Medical Rentals, LLC from order

entered 14 November 2012 by Judge James C. Spencer in Guilford

County Superior Court.   Heard in the Court of Appeals 28 August

2013.


     Van Laningham Duncan PLLC, by Alan W. Duncan, and Smith Moore
     Leatherwood LLP, by Richard A. Coughlin and Corinne B. Jones,
     for plaintiff-appellees.

     Carruthers & Roth, P.A., by Robert N. Young, Richard L.
     Vanore, and Michael J. Allen, for defendant-appellant.
                                     -2-
       BRYANT, Judge.


       Where Quality Medical does not challenge the applicability of

our long-arm statute in the exercise of personal jurisdiction and

competent evidence supports the trial court’s findings of fact and

conclusion of law that Quality Medical maintained minimum contacts

with North Carolina such that the exercise of personal jurisdiction

does not offend the notion of due process, we affirm the order of

the trial court.

       On 29 September 2011 and later on 3 April 2012, plaintiff

Kristin    Berrier,     both   individually   and   in   her   capacity   as

administrator of the Estate of Jacob Alexander Berrier, and Justin

Berrier, in his capacity as administrator of the Estate of Jacob

Alexander Berrier, filed and then amended a complaint against

defendants CareFusion 203, Inc.; CareFusion Corporation; LinCare

Inc. d/b/a Pediatric Specialists; LinCare Holdings, Inc. d/b/a

Pediatric Specialists; Jonmark Mayes; Shelley R. Boyd; the Masimo

Corporation; Masimo Americas, Inc.; and Quality Medical Rentals,

LLC.    In their amended complaint, plaintiffs sought relief on the

basis of negligence from CareFusion, Pediatric Specialists, Mayes,

Boyd,   Masimo   and    Quality   Medical.     Plaintiffs      claimed   that

CareFusion, Pediatric Specialists, Mayes, Boyd, and Masimo were

liable for negligent infliction of emotional distress.             Claiming
                                      -3-
breach of an implied warranty of merchantability and unfair and

deceptive     trade    practices,     plaintiffs       sought     relief    from

CareFusion, Pediatric Specialists, and Masimo.             Plaintiffs claimed

that Pediatric Specialists, Mayes, and Boyd committed medical

malpractice.    Plaintiffs asked that punitive damages be assessed

against   CareFusion,     Pediatric    Specialists,       Mayes,    Boyd,    and

Masimo.

     The allegations set forth in the complaint assert that in

December 2007, Jacob Berrier, born 23 September 2007, was diagnosed

with spinal muscular atrophy and placed on a ventilator.                   Other

than for short periods of time, Jacob was unable to breathe on his

own and was unable to move his head or extremities.               On 5 November

2008,   Pediatric     Services   became     Jacob’s    supplier    for   medical

equipment, products, respiratory supplies, and associated home

ventilator program services.          Pediatric Services provided Jacob

with an LTV 950 ventilator and pulse oximeter.                     The LTV 950

ventilators    were    designed,    manufactured,        tested,    inspected,

marketed, and distributed by CareFusion.              In June 2009, Pediatric

Specialists entered into a service contract with Quality Medical

Rentals, LLC, (Quality Medical) to service and repair LTV 950

ventilators.    Quality Medical is a Florida corporation with its

principal place of business in Largo, Florida.
                                         -4-
         Plaintiffs    asserted       that    on       15     June        2009,    Pediatric

Specialists shipped an LTV 950 ventilator to Quality Medical from

Winston-Salem,        North    Carolina.          The       LTV    950     ventilator       was

identified by its serial number – C15775 Ventilator.                                    Quality

Medical performed service and maintenance on the C15775 Ventilator

on 22 June 2009 and then shipped the C15775 Ventilator back to

Pediatric Specialists in Winston-Salem. On 18 July 2009, Pediatric

Specialists employee and Center Manager Jonmark Mayes provided the

C15775     Ventilator    to    Jacob.        On    8     October       2009,      the   C15775

Ventilator malfunctioned – it stopped breathing for Jacob and

failed     to   alarm.   Jacob’s      mother       was      able     to    provide      manual

ventilation pending the arrival of EMS, and Jacob was then taken

to   a    hospital    where,    for    several         days,      he     was   treated      for

respiratory distress.           The C15775 Ventilator was collected and

returned to CareFusion which then returned the C15775 Ventilator

to Pediatric Specialists reporting that it was in good mechanical

and serviceable condition.            Shelley Boyd, an employee of Pediatric

Specialists, again delivered and set-up the C15775 Ventilator for

Jacob at his home on 29 January 2010.                       That evening, the C15775

Ventilator once again malfunctioned; it stopped operating.                                  The

C15775 Ventilator alarm failed to sound, and the pulse oximeter

failed to indicate by alarm that the C15775 Ventilator had stopped
                                    -5-
operating.     When found, Jacob was not breathing and was without a

pulse. He was admitted to Moses Cone Hospital’s pediatric critical

care unit in Greensboro where he died four days later.

       On 8 June 2012, Quality Medical filed a motion to dismiss

plaintiffs’ amended complaint pursuant to Rule 12(b)(2) for lack

of personal jurisdiction.        In an accompanying memorandum of law,

Quality Medical argued that it did not have sufficient minimum

contacts with North Carolina in order for the trial court to

exercise personal jurisdiction over it in this matter.               Following

a 19 September 2012 hearing, the trial court entered an order

denying Quality Medical’s 12(b)(2) motion.               In its 14 November

2012 order, the trial court concluded that North Carolina’s long

arm statute authorized the exercise of personal jurisdiction and

that   plaintiffs’     assertions   established    the     minimum    contacts

necessary to satisfy the standards of specific jurisdiction.                As

such, the trial court’s exercise of personal jurisdiction over

Quality Medical comported with constitutional standards of due

process.     Quality Medical appeals.

                        _______________________________

       On   appeal,   Quality   Medical   raises   the    following    issues:

whether the trial court erred by (I) including specific findings

of fact in its order denying Quality Medical’s motion to dismiss;
                                 -6-
and (II) concluding that the exercise of personal jurisdiction

comports with due process.

                              Right to appeal

     Pursuant to North Carolina General Statutes, section 1-277,

“[a]ny 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.”   N.C. Gen. Stat. ' 1-277(b) (2011); see also Bruggeman v.

Meditrust Acquisition Co., 138 N.C. App. 612, 614, 532 S.E.2d 215,

217 (2000) (“The denial of a motion to dismiss for lack of

jurisdiction is immediately appealable.” (citation omitted)).

                                       I

     Quality Medical argues that in the order denying Quality

Medical’s motion to dismiss for lack of personal jurisdiction, the

trial court erred in making certain findings of fact.         More

specifically, Quality Medical contends that the trial court erred

in making findings of fact based upon (1) unverified allegations

in the amended complaint, (2) incompetent deposition testimony,

and (3) service   and maintenance      records not relevant to the

ventilator central to this case.    We disagree.

                             Standard of review
                               -7-
              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. Typically, the parties
         will present personal jurisdiction issues in
         one of three procedural postures: (1) the
         defendant makes a motion to dismiss without
         submitting any opposing evidence; (2) the
         defendant supports its motion to dismiss with
         affidavits, but the plaintiff does not file
         any opposing evidence; or (3) both the
         defendant and the plaintiff submit affidavits
         addressing the personal jurisdiction issues.

Banc of Am. Sec. LLC v. Evergreen Int'l Aviation, Inc., 169 N.C.

App. 690, 693, 611 S.E.2d 179, 182 (2005).

    Quality Medical submitted a motion to dismiss plaintiffs’

amended complaint for lack of personal jurisdiction.   The motion

was supported by an affidavit from Quality Medical manager Donald

Perfetto and a memorandum of law contending that Quality Medical

lacked sufficient minimum contacts with North Carolina for the

trial court to exercise personal jurisdiction.

              [I]f the defendant supplements his motion
         to dismiss with an affidavit or other
         supporting evidence, the allegations in the
         complaint can no longer be taken as true or
         controlling and plaintiff cannot rest on the
         allegations of the complaint.     In order to
         determine whether there is evidence to support
         an exercise of personal jurisdiction, the
         court then considers (1) any allegations in
         the complaint that are not controverted by the
         defendant's affidavit and (2) all facts in the
         affidavit (which are uncontroverted because of
         the plaintiff's failure to offer evidence).
                                     -8-
Id. at 693-94, 611 S.E.2d at 182-83 (citations and quotations

omitted).

     Where, as here, the trial court holds an evidentiary hearing

including depositions and arguments of counsel, “the trial court

[is] required to act as a fact-finder, and decide the question of

personal jurisdiction by a preponderance of the evidence.”                Deer

Corp. v. Carter, 177 N.C. App. 314, 322, 629 S.E.2d 159, 166 (2006)

(citation omitted).

            When this Court reviews a decision as to
            personal jurisdiction, it considers only
            whether the findings of fact by the trial
            court are supported by competent evidence in
            the record; . . . [w]e are not free to revisit
            questions of credibility or weight that have
            already been decided by the trial court.

Id. at 321, 629 S.E.2d at 165 (citation and quotations omitted).

                      (1)     Unverified allegations

     Quality Medical first argues that the unverified allegations

in plaintiffs’ amended complaint are not competent evidence and

should not have been considered by the trial court.

     “Where    unverified     allegations     in     the     complaint    meet

plaintiff's    initial      burden   of    proving     the    existence    of

jurisdiction    ...   and    defendant[s]    ...     d[o]    not   contradict

plaintiff's allegations in their sworn affidavit, such allegations

are accepted as true and deemed controlling.”                  Inspirational
                                -9-
Network, Inc. v. Combs, 131 N.C. App. 231, 235, 506 S.E.2d 754,

758 (1998) (citation and quotations omitted).

     Quality Medical specifically notes the trial court’s finding

of fact number 10, which states “the allegations of the Plaintiffs

in the Amended Complaint, if proven, would constitute a clear

source and connection of the cause of action to the contacts of

Quality Medical.”1   Quality Medical argues that the trial court

impermissibly relied upon the allegations of the amended complaint

as the key factor in deciding the “source and connection of the

cause of action to the contacts.”

     In the amended complaint, plaintiffs assert that “[u]pon

information and belief, at all times relevant herein, Quality

Medical serviced products, materials, and things, including but

not limited to the C15775 Ventilator that is the subject of this

action, that were used within North Carolina in the ordinary course

of business.”   In its motion to dismiss the amended complaint and

the accompanying documents, Quality Medical acknowledges that it



1 The trial court gave careful consideration to the existence of
minimum contacts with the forum state in determining specific
jurisdiction based on the following factors:
(1) quantity of the contacts;
(2) the nature and quality of the contacts;
(3) the source and connection of the cause of action to the
     contacts;
(4) the interest in the forum state; and
(5) convenience of the parties.
                                      -10-
is a limited liability company located in Florida, that “the vast

majority of [its] business is servicing medical equipment,” and

that it receives medical equipment and service requests from

Pediatric Specialists.         It also       states that “[i]n July 2009

Pediatric Specialists provided Plaintiffs ventilator # C15775 . .

. [and that] Quality Medical serviced ventilator C15775 in Florida

in June 2009.”     The amended complaint alleges that “[a]s a result

of the C15775 Ventilator failure, Jacob [Berrier] suffered severe

hypoxic   injury   and    brain     damage,    including   hypoxic-ischemic

encephalopathy and diffuse cerebral edema, and remained in the

Pediatric Critical Care Unit at the Hospital for four days, and

then died.”   On this record, it is clear that the uncontroverted

allegations   of    the     amended     complaint    along      with   certain

acknowledgments     in    Quality    Medical’s    motion   to    dismiss   and

documentation in support thereof provide competent evidence to

support the trial court’s finding of fact number 10: “[I]f proven,

[the allegations] would constitute a clear source and connection

of the cause of action to the contacts of Quality Medical.”                See

Banc of Am. Sec., 169 N.C. App. at 693-94, 611 S.E.2d at 182-83;

Inspirational Network, 131 N.C. App. at 235, 506 S.E.2d at 758.

     Quality Medical also challenges other findings of fact on the

basis that the trial court relied heavily on unverified allegations
                                   -11-
in the amended complaint. In challenging these findings of fact,

Quality Medical argues that “there is no evidence in the record

that [it] had any knowledge of who the final user of any medical

equipment would be or where the equipment would be used.”

     The trial court made pertinent findings of fact that Quality

Medical    performed    service   and    repairs    to   medical   equipment

designed for home oxygen care and respiratory therapy; that some

requests   for   Quality    Medical’s    services    came   from   Pediatric

Specialists, which sent equipment from North Carolina to Quality

Medical in Florida; and that Quality Medical returned the medical

equipment from Florida to Pediatric Specialists in North Carolina.

Though the trial court acknowledged Quality Medical’s contention

that when returning repaired medical equipment Quality Medical had

no knowledge of the end user’s identity, the trial court found

unreasonable     if   not   incredible   the   proposition    that   Quality

Medical did not know the identity of the end user or that there

would be an end user in North Carolina.

            9.   The [Trial] Court does find that the
            nature and quality of the contacts . . .
            establish a reasonable expectation on the part
            of Quality Medical that the serviced and
            repaired medical equipment received from and
            returned to North Carolina would be used by
            medically dependent consumers within the
            State.
                                      -12-
     Therefore,    the   uncontested         allegations   of     the   amended

complaint in conjunction with the averments of the affidavit

provide a sufficient basis to uphold the challenged findings of

fact.     See Banc of Am. Sec., 169 N.C. App. at 693-94, 611 S.E.2d

at 182-83; Inspirational Network, 131 N.C. App. at 235, 506 S.E.2d

at 758.

     (2) Deposition testimony of Shelley Boyd and Jonmark Mayes

     Next, Quality Medical argues that the deposition testimony of

Pediatric Specialists employee Shelley Boyd and former employee

Jonmark Mayes was not competent to establish personal jurisdiction

over Quality Medical.

     In her deposition testimony, Shelley Boyd, an employee of

Pediatric Specialists at the time of her deposition on 29 August

2012, testified that while the center for which she worked sent

broken or malfunctioning equipment for repair to Quality Medical,

she was unaware if Pediatric Specialists used Quality Medical for

repair and maintenance services in 2009 and the beginning of 2010.

     Jonmark    Mayes,   a   former    employee    and   center    manager   of

Pediatric Specialists, stated in his deposition testimony that

Pediatric Specialists used Quality Medical “the majority of the

time” for periodic maintenance of ventilators but failed to be

specific as to what period he was referring.
                                   -13-
     We agree with Quality Medical that the deposition testimony

of Boyd and Mayes is not competent standing alone to support the

trial   court’s   findings   of   fact    as   to   personal   jurisdiction.

However, Quality Medical does not allege and we do not find that

the trial court made any finding of fact solely predicated upon

the deposition testimony of Boyd or Mayes.            Therefore, we review

additional evidence that might be deemed competent to support the

trial court’s findings of fact as to personal jurisdiction.

                  (3) Service records of ventilators

     Quality Medical next argues that the trial court erred in

making findings of fact based upon evidence retrieved from the

maintenance records of ventilators serviced by Quality Medical

that were not related to the cause of action.

     The record reflects four maintenance or repair records from

Pediatric Specialists of ventilators serviced by Quality Medical

between 2008 and 2010.        Of the four records, Quality Medical

acknowledges and does not otherwise contest the record relating to

its service of Ventilator C15775 in June 2009 but contends that

the remaining three service reports, which relate to Ventilator

C02515, are not relevant to the cause of action against Quality

Medical.   Quality Medical bases this contention on plaintiffs’
                                   -14-
failure to claim negligence in the maintenance of Ventilator

C02515.

     We point out that the question presented is whether competent

evidence exists to support the challenged findings of fact.           While

the maintenance records do not support one finding, exclusively,

the maintenance records do support the trial court’s finding of

fact number 1:

            1.   . . . [O]n at least four separate
            occasions between September of 2008 and May
            [2010], [Quality Medical did] receive LTV950
            ventilator medical devices from co-defendant
            Lincare [(Pediatric Specialists)] sent from
            North Carolina, on which Quality Medical
            performed service, maintenance and/or repair
            in Florida and then returned to Lincare
            [(Pediatric Specialists)] in North Carolina.

     Quality Medical further contends that the service records for

LTV950    ventilator   serial    number   Ventilator   C02515   are    not

competent evidence to support findings that in turn support the

trial     court’s   conclusion    that    the   exercise   of   personal

jurisdiction over Quality Medical based on specific jurisdiction

does not violate due process. We consider this argument more fully

in our discussion of issue II.

     We note that on appeal, Quality Medical listed findings of

fact 1, 2, 5, 6, 7, 8, 9, 10, and 14 as findings it intended to

challenge as made in error.      In its argument to this Court, Quality
                               -15-
Medical directly challenged findings of fact 6, 7, 8, 9, and 10

for the following reasons: lacking sufficient basis; incompetent

deposition testimony (though it failed to direct our attention to

any finding of fact predicated on the testimony); and relevancy

(but, again, failed to direct the attention of this Court to any

finding of fact made in error as a result).    To the extent that

findings of fact 1, 2, and 5 are unchallenged by Quality Medical,

those findings are binding on appeal.2    See In re Schiphof, 192



2 In its 14 November 2012 order, the trial court made the following
findings of fact:

1.   [(A)]     The Court does find from the evidence presented
     that at least two Lincare personnel in North Carolina were of
     the opinion that Quality Medical provided maintenance
     services for Lincare’s ventilator medical devices and that
     Quality Medical did, on at least four occasions between
     September of 2008 and May of [2010], receive LTV950 ventilator
     medical devices from co-defendant Lincare sent from North
     Carolina, on which Quality Medical performed service,
     maintenance and/or repair in Florida and then returned to
     Lincare in North Carolina.

     (B) The nature and quality of the contacts – Plaintiffs do
     not suggest that Quality Medical had direct contact with, or
     even knew the identity of, the ultimate users of the medical
     equipment which it serviced for its co-defendants Lincare,
     Inc. and Lincare Holdings, Inc., both d/b/a Pediatric
     Specialists, providers of home oxygen care and other
     respiratory therapy services. . . . There is no evidence of
     Quality Medical having any offices, employees, sales
     representatives or other agents in North Carolina (its only
     office is in Florida); it has no property (real or personal)
     in North Carolina; it has not actively or specifically
     solicited business or advertised in North Carolina, although
     it has a website which describes the services it performs at
                                      -16-
N.C. App. 696, 700, 666 S.E.2d 497, 500 (2008) (“Unchallenged

findings of fact are presumed correct and are binding on appeal.”

(citation omitted)).      Finding of fact 14 states in pertinent part

that “specific jurisdiction exists, the cause of action having

arisen   from   or   being   related    to    Defendant     Quality   Medical’s

contacts with the forum.”         We will consider this finding as it

relates to Quality Medical’s arguments presented in issue II.

                                       II

     Quality    Medical      argues    that   the   trial    court    erred   in

concluding the exercise of personal jurisdiction comports with

constitutional standards of due process.             Specifically, Quality

Medical contends that it did not purposefully avail itself of the

opportunity to do business in North Carolina and that it lacked




     its Florida location; it is not licensed or registered to do
     business in North Carolina; and it has never previously been
     involved in litigation in North Carolina; and

2.   The Court does find the above-referenced facts to be
     established by a preponderance of the evidence.
          However, there likewise appears to be no serious dispute
     as to the following additional facts, which the Court also
     finds to be established by a preponderance of the evidence:

. . .

5.   Some of the service requests came from Lincare locations in
     North Carolina[.]
                                -17-
sufficient contacts with the state to satisfy the standard of

specific jurisdiction.    We disagree.

     In its 14 November 2012 order denying Quality Medical’s motion

to dismiss, the trial court drew the following conclusion:

            Having considered the five factors used in
            determining the existence of the minimum
            contacts necessary to properly allow the
            exercise of that statutory jurisdiction, the
            Court finds that Quality Medical, having
            delivered the repaired and serviced medical
            equipment into the stream of commerce in North
            Carolina with the reasonable expectation that
            the equipment would be used by medically
            dependent consumers within the State, was
            “fairly warned” that litigation might result
            from injuries that were alleged to have arisen
            out of or were related to its activities in
            servicing or repairing the equipment and the
            Court further finds that specific jurisdiction
            exists, the cause of action having arisen from
            or   being  related   to   Defendant   Quality
            Medical’s contacts with the State.

(emphasis added).     “When this Court reviews a decision 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.”     Banc of Am. Secs., 169 N.C. App. at 694, 611 S.E.2d at

183 (citation and quotations omitted).

     In addressing a challenge to personal jurisdiction over a

non-resident defendant, a trial court must employ a two-step

analysis.    “First, the transaction must fall within the language
                                      -18-
of   the   State's   ‘long-arm’   statute.         Second,   the   exercise   of

jurisdiction must not violate the due process clause of the

fourteenth amendment to the United States Constitution.” Tom Togs,

Inc. v. Ben Elias Indus. Corp., 318 N.C. 361, 364, 348 S.E.2d 782,

785 (1986) (citation omitted).          Quality Medical does not contest

whether a basis for jurisdiction exists under North Carolina’s

long-arm    statute,   N.C.    Gen.    Stat.   '    1-75.4   (2011),   instead

contending only that the exercise of personal jurisdiction over it

offends constitutional standards of due process.

                              Long-Arm Statute

      The exercise of personal jurisdiction is authorized pursuant

to our long-arm statute, General Statutes, section 1-75.4,

            in any action claiming injury to person or
            property within this State arising out of an
            act or omission outside this State by the
            defendant, provided in addition that at or
            about the time of the injury either:

                 . . .

                  b.   Products,   materials   or   thing
            processed, serviced or manufactured by the
            defendant were used or consumed, within this
            State in the ordinary course of trade[.]

N.C. Gen. Stat. ' 1-75.4(4)(b.) (2011).               “Under our ‘long arm’

statute, North Carolina courts may obtain personal jurisdiction

over a non-resident defendant to the full extent permitted by the

Due Process Clause of the United States Constitution.” Saxon v.
                                 -19-
Smith, 125 N.C. App. 163, 173, 479 S.E.2d 788, 794 (1997) (citation

omitted).

                              Due Process

       “To satisfy the requirements of the due process clause, there

must exist ‘certain minimum contacts [between the non-resident

defendant and the forum] such that the maintenance of the suit

does not offend traditional notions of fair play and substantial

justice.’”    Tom Togs, 318 N.C. at 365, 348 S.E.2d at 786 (citing

International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).

“The concept of ‘minimum contacts’ furthers two goals. First, it

safeguards the defendant from being required to defend an action

in a distant or inconvenient forum. Second, it prevents a state

from escaping the restraints imposed upon it by its status as a

coequal sovereign in a federal system.”        Skinner v. Preferred

Credit, 361 N.C. 114, 122, 638 S.E.2d 203, 210 (2006) (citation

omitted).    When evaluating whether minimum contacts with the forum

exists, a court typically evaluates “the quantity and nature of

the contact, the relationship between the contact and the cause of

action, the interest of the forum state, the convenience of the

parties, and the location of witnesses and material evidence.”

Saxon, 125 N.C. App. at 173, 479 S.E.2d at 794 (citation omitted).3



3   While we acknowledge Quality Medical’s cited authority supporting
                                     -20-
     The trial court found that Quality Medical received repair

requests for two of the ventilators referred to in the amended

complaint, serviced those devices in Florida, and returned the

devices to Pediatric Specialists in North Carolina.                  The trial

court found implausible the proposition that Quality Medical did

not know what the end use of the ventilators would be or that the

end user – a medically dependent consumer – would be located in

North Carolina.        Based on the record before us, we uphold this

finding.     The trial court further found that, if proven true, the

allegations of the complaint – namely that Quality Medical’s

negligence in servicing ventilator model LTV950, serial number

C15775, resulted in injury, damage, and death – form the basis of

the action.     This Court has previously acknowledged that our State

has a powerful public interest in protecting its citizens against

out-of-state tortfeasors.         See id. at 173, 479 S.E.2d at 794 (“In

light   of    the   powerful   public   interest   of    a   forum   state   in

protecting its citizens against out-of-state tortfeasors, the

court   has     more    readily    found    assertions       of   jurisdiction

constitutional in tort cases.”); see also Cooper v. Shealy, 140




its position that it did not purposefully avail itself of the
privilege of conducting business in North Carolina, we recognize
that the cases cited regard contractual relations, not tortious
conduct.
                                     -21-
N.C. App. 729, 537 S.E.2d 854 (2000) (holding the exercise of

jurisdiction did not offend due process where the defendant engaged

in    tortious    conduct:     alienation     of   affection   and    criminal

conversation). Though on appeal Quality Medical asserts that North

Carolina would be an inconvenient forum in which to litigate this

action, it provides no support for this assertion.

      Specifically, given the quality and nature of the contacts

between Quality Medical and North Carolina, the connection between

Quality Medical’s contacts with the State and the cause of action,

and the interest of North Carolina in protecting its citizens from

tortfeasors, the maintenance of the suit in North Carolina does

not   offend     traditional   notions   of    fair   play   and   substantial

justice.    See Tom Togs, 318 N.C. at 365, 348 S.E.2d at 786; see

also Ciba-Geigy Corp. v. Barnett, 76 N.C. App. 605, 609, 334 S.E.2d

91, 94 (1985) (“It was clear that the alleged tort would have its

damaging effect in North Carolina. Simply because defendant was

able to cause the injury without physically coming to this state

does not defeat jurisdiction.” (citation omitted)).                Accordingly,

we overrule Quality Medical’s challenge to the trial court’s

exercise of personal jurisdiction.

      Affirmed.

      Judges STEPHENS and DILLON concur.
