An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in 

accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of 

Appellate Procedur e .

NO. COA13-1376

NORTH CAROLINA COURT OF APPEALS

Filed: 19 August 2014

K

2 ASIA VENTURES, BEN C. BROOCKS, 

AND JAMES G. J. CROW,

Plaintiffs,

v. Forsyth County

No. 09 CVS 2766

ROBERT TROTA, VERONICA TROTA, 

JOSELITO SALUDO, CAROLYN T. SALUD, 

ROLAND V. GARCIA, CRISTINA T. 

GARCIA, JIM FUENTEBELLA, MAVIS 

FUENTEBELLA, SHARON FUENTEBELLA, 

MAX’S BACLARAN INC., CHICKENS R 

US, INC., MAX’S MAKATI INC., MAX’S 

ERMITA, INC., MAX’S OF MANILA, 

INC., THE REAL AMERICAN DOUGHNUT 

COMPANY INC., TROFI VENTURES, 

INC., AND RUBY INVESTMENT COMPANY 

HOLDINGS, INC., KRISPY KREME 

DOUGHNUT CORPORATION, AND KRISPY 

KREME DOUGHNUTS, INC.,

Defendants.

Appeal by plaintiffs from order entered 26 July 2013 by 

Judge Anderson D. Cromer in Forsyth County Superior Court. 

Heard in the Court of Appeals 4 June 2014.

Watts Guerra LLP, by Christopher V. Goodpastor, pro hac 

vice, and Blanco Tackabery, by Peter J. Juran, for

plaintiff-appellants.
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Bell, Davis & Pitt, P.A., by William K. Davis, Alan M. 

Ruley, and Bradley C. Friesen, for defendant-appellees.

BRYANT, Judge.

Where the trial court’s order granting a motion to dismiss 

for lack of personal jurisdiction is supported by competent 

evidence, we affirm.

K

2 Asia Ventures is a Cayman Island company with its 

principal place of business in Austin, Texas. K

2 Asia Ventures 

was formed by Ben C. Broocks, a resident of Texas, and James G.

J. Crow, a resident of Wyoming, for the purpose of creating 

Krispy Kreme franchises in Asia — specifically, the Philippines, 

Hong Kong, and Thailand. 

After meeting with Krispy Kreme to discuss franchising 

requirements, Broocks approached Carolyn T. Salud about 

establishing Krispy Kreme stores in the Philippines. Broocks 

chose Salud because she and her extended family operate a large 

chain of fried chicken restaurants, known as “Max’s,” in the 

Philippines, Canada, and the United States. Salud and her 

extended family, including Robert Trota, Veronica Trota, 

Joselito Saludo, Roland V. Garcia, Cristina T. Garcia, Jim 

Fuentebella, Mavis Fuentebella, and Sharon Fuentebella, also 

operate several food service businesses, including Max's 
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Baclaran, Inc., Chickens R Us, Inc., Max's Makati, Inc., Max's 

Ermita, Inc., and Max's of Manila, Inc., as well as two 

investment and corporate management firms, Trofi Ventures, Inc., 

and Ruby Investment Company Holdings, Inc. With the exception 

of Max’s of Manila, a California-based corporation, all of the 

Salud family’s businesses are based in the Philippines, and all 

members of the Salud family are Philippine citizens. 

Carolyn Salud and her family agreed to enter into 

negotiations with Broocks to establish Krispy Kreme franchises 

in the Philippines. In 2004, Broocks executed a memorandum of 

understanding (“MOU”) between K2 Asia Ventures, Max’s Ermita, 

Inc., and a group of three individual investors. The MOU 

required Broocks, as a member and manager of K2 Asia Ventures, to 

work for the creation of a Krispy Kreme franchise agreement for 

Max’s Ermita, Inc. Once a franchise was awarded, the MOU 

directed the creation of a new Philippine corporation with all 

MOU parties recognized as shareholders. The MOU also required 

that any disputes arising under its terms would be subject to 

the laws of the Philippines. 

In 2005, Carolyn Salud signed a confidentiality agreement 

with Krispy Kreme on behalf of herself and her family members. 

During this same time period, on 26 October 2005, Krispy Kreme 
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and K2 Asia Ventures entered into a letter of intent that 

contained provisions concerning the confidentiality agreement. 

In her deposition, Carolyn Salud stated that although the 

confidentiality agreement referred to the Krispy Kreme / K

2 Asia 

Ventures letter of intent which was supposedly attached to the 

agreement, the letter was never attached nor provided.

In January 2006, a meeting was held in South Korea between 

Broocks, Carolyn Salud, Robert Trota, Cristina Garcia, Jim 

Fuentebella, Sharon Fuentebella, and several Krispy Kreme 

representatives. After the meeting, Krispy Kreme agreed to 

award the Salud family a franchise; the Salud family agreed to 

retain Broock’s law firm, Jackson Walker, to negotiate the 

franchise agreement. The Salud family then created a new 

business, The Real American Doughnut Company, to develop and 

operate the Krispy Kreme franchise.

Business relations between the Salud family and Broocks

soured after a “heated conference call” in March 2006 between 

Carolyn Salud, Jeff Welch of Krispy Kreme, and Patrick Tobin and 

Broocks of the Jackson Walker law firm. On 26 April 2006, 

Krispy Kreme and The Real American Doughnut Company agreed to a 

development agreement for a Krispy Kreme franchise based in the 

Philippines. Under the terms of this development agreement, 
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disputes would be first subject to non-binding mediation in 

Winston-Salem, North Carolina; binding arbitration would be 

conducted in New York City, New York under New York law. 

On 7 April 2009, K2 Asia Ventures, Ben C. Broocks, and James 

G. J. Crow (“plaintiffs”) filed a complaint against Robert 

Trota, Veronica Trota, Joselito Saludo, Carolyn T. Salud, Roland 

V. Garcia, Cristina T. Garcia, Jim Fuentebella, Mavis 

Fuentebella, Sharon Fuentebella, Max's Baclaran, Inc., Chickens 

R Us, Inc., Max's Makati, Inc., Max's Ermita, Inc., Max's of 

Manila, Inc., The Real American Donut Company Inc., Trofi 

Ventures, Inc., Ruby Investment Company Holdings, Inc., Krispy 

Kreme Doughnut Corporation, and Krispy Kreme Doughnuts, Inc. 

(“defendants”), alleging various causes of action arising from

an alleged breach of a business agreement between plaintiffs and 

defendants. On 19 June and 18 August 2009, defendants Robert 

Trota, Veronica Trota, Joselito Saludo, Carolyn T. Salud, Roland 

V. Garcia, Cristina T. Garcia, Jim Fuentebella, Mavis 

Fuentebella, Sharon Fuentebella, Max's Baclaran, Inc., Chickens 

R Us, Inc., Max's Makati, Inc., Max's Ermita, Inc., Max's of 

Manila, Inc., The Real American Donut Company Inc., Trofi 

Ventures, Inc., and Ruby Investment Company Holdings, Inc. (the 
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“non-resident defendants”) filed motions to dismiss for lack of 

personal jurisdiction. 

On 11 August 2009, plaintiffs served their first set of 

interrogatories, requests for production of documents, and 

requests for admissions on all defendants; plaintiffs then filed 

a 10 March 2010 motion to compel depositions. On 19 April 2010, 

the trial court granted plaintiffs’ motion to compel 

depositions. Defendants appealed to this Court, and on 1 March 

2011, this Court dismissed defendants’ appeal as interlocutory.

See K2 Asia Ventures v. Trota, 209 N.C. App. 716, 708 S.E.2d 106 

(2010).

While defendants’ appeal to this Court was pending, on 30 

April 2010, plaintiffs filed new motions to compel production of 

documents from defendants. On 15 June 2010, the trial court 

granted plaintiffs’ motions for production of specific 

documents. Defendants appealed to this Court, arguing that the 

trial court erred in granting plaintiffs’ motions because 

defendants’ documents were privileged. This Court affirmed the 

trial court’s order, holding that defendants failed to 

demonstrate that the requested documents were protected under 

either the attorney-client or work product privileges. See K2 
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Asia Ventures v. Trota, 215 N.C. App. 443, 717 S.E.2d 1, review 

denied, 365 N.C. 369, 719 S.E.2d 37 (2011).

On 4 February 2011, plaintiffs filed an amended complaint 

against defendants alleging that plaintiff Broocks had expended 

time and money for travel and communications between and with

defendants Krispy Kreme Doughnut Corporation and Krispy Kreme 

Doughnuts, Inc. (“Krispy Kreme defendants”) “for the purpose of 

procuring franchise rights” for plaintiffs and defendants. 

Plaintiffs’ amended complaint further asserted claims against 

defendants for breach of contract, intentional interference with 

contractual relationship and prospective economic advantage, 

promissory estoppel, breach of fiduciary duties, unfair and 

deceptive trade practices, quantum meruit, and unjust 

enrichment. 

On 8 April 2011, the non-resident defendants filed a Rule 

12(b)(2) motion to dismiss plaintiffs’ amended complaint for 

lack of personal jurisdiction. On 16 September, plaintiffs and 

the Krispy Kreme defendants filed a joint motion for designation 

of case as exceptional; the motion was granted on 23 September. 

On 12 September 2012, a hearing was conducted on the nonresident defendants’ motion to dismiss plaintiffs’ amended 

complaint, the Honorable Anderson D. Cromer, Judge presiding. 
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On 26 July 2013, the trial court granted the non-resident 

defendants’ Rule 12(b)(2) motion to dismiss for lack of personal 

jurisdiction. Plaintiffs appeal.

_________________________________

At the outset we note that although plaintiffs’ appeal is 

interlocutory, it is immediately appealable and properly before 

this Court. 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)

(2013); see also A.R. Haire, Inc. v. St. Denis, 176 N.C. App. 

255, 257—58, 625 S.E.2d 894, 898 (2006) (“[M]otions to dismiss 

for lack of personal jurisdiction affect a substantial right and 

are immediately appealable[.]” (citation omitted)).

_____________________________________

On appeal, plaintiffs contend the trial court erred in 

granting the non-resident defendants’ motion to dismiss for lack 

of personal jurisdiction. We disagree.

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, 
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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). 

The non-resident defendants filed a Rule 12(b)(2) motion to 

dismiss plaintiffs’ amended complaint for lack of personal 

jurisdiction. This motion was supported by first and second 

affidavits made by each of the non-resident defendants asserting 

a lack of personal jurisdiction. Plaintiffs did not file any 

affidavits in response to rebut the non-resident defendants’

motion to dismiss.

[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).
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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.” Berrier v. Carefusion 203, Inc., ___ N.C. App. ___, 

___, 753 S.E.2d 157, 161 (citing Deer Corp. v. Carter, 177 N.C. 

App. 314, 322, 629 S.E.2d 159, 166 (2006)), cert. denied, 366 

N.C. 597, 740 S.E.2d 477 (2014).

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 ___, 753 S.E.2d at 161—62 (citation omitted).

Plaintiffs argue that the trial court erred in granting the 

non-resident defendants’ motion to dismiss for lack of personal 

jurisdiction. In its order granting the non-resident 

defendants’ motion to dismiss, the trial court made seventy-nine 

findings of fact and seventy-six conclusions of law. 

Plaintiffs, in their reply brief, challenge findings of fact 6, 

11, 15, 18, 22—24, 28, 36—37, 41—53, 63—64, 66, 71, 72, 73, 75—
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79, and conclusions of law 36—44, 49, and 50—54. However, in 

their initial brief plaintiffs do not specifically challenge any 

of the trial court’s findings of fact or conclusions of law. 

Rather, in both briefs plaintiffs present broad arguments 

contending the non-resident defendants “failed to controvert a 

plethora of [plaintiffs’] evidence regarding [the non-resident 

defendants’] contacts with North Carolina” and, thus, the 

exercise of personal jurisdiction over the non-resident 

defendants would be fair and reasonable, and comport with due 

process. 

In conducting its hearing, the trial court heard the 

arguments of counsel, reviewed numerous pages of documentary 

evidence, and saw recordings of depositions. As such, the trial 

court served as the fact-finder and made its decision as to 

personal jurisdiction accordingly. See id. at ___, 753 S.E.2d 

at 161—64. Although plaintiffs now challenge the trial court’s 

order on grounds that the trial court’s order was not supported 

by competent evidence, we reiterate that

[w]hen 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.
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Id. at ___, 753 S.E.2d at 161—62 (citation omitted).

In its order, the trial court made extensive findings of 

fact as to the level of activity, or lack thereof, of the nonresident defendants in the state of North Carolina. The trial 

court concluded that plaintiffs had not met their burden of 

showing that the non-resident defendants were engaged in 

substantial activity within North Carolina such that the nonresident defendants would be subject to personal jurisdiction. 

Further, the trial court concluded, after numerous and relevant 

findings of fact, that the non-resident defendants had not 

consented to jurisdiction in North Carolina. Our review of the 

record confirms the trial court’s findings of fact were 

supported by competent evidence in the record. The record 

indicates that both plaintiffs and the non-resident defendants 

presented the trial court with an array of evidence regarding 

the extent of the agreements, communications, and other forms of 

contact between the plaintiffs, the non-resident defendants, and 

the Krispy Kreme defendants. Although certain pieces of 

evidence were disputed by the parties, the trial court was the 

appropriate entity to consider the weight and credibility of 

such evidence. Notwithstanding that contrary findings could 

have been made, as we have noted previously, the findings made 
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by the trial court to support its ultimate conclusion are 

supported by competent evidence in the record. Accordingly, 

plaintiffs’ general contention that the trial court erred in not 

finding personal jurisdiction as to the non-resident defendants 

because both parties presented disputed evidence is without 

merit. Therefore, we affirm the trial court’s order granting the 

non-resident defendants’ motion to dismiss for lack of personal 

jurisdiction. 

Affirmed. 

Judges CALABRIA and GEER concur. 

Report per Rule 30(e).