2003 Ohio 6042 | Ohio Ct. App. | 2003
{¶ 2} In early 2001 Sircal was one of several contractors who submitted bids to renovate Ellis Auditorium on the University of Missouri's Columbia campus. Because American had provided services to the University on other occasions, it received information about the project from the University and sent subcontractor bids for upholstery work to five or six contractors, including Sircal. Sircal then contacted American by telephone, the parties executed a contract, and American's employees went to Missouri to perform the work. All contract terms and contact between the parties were by telephone, facsimile, or mail.
{¶ 3} A dispute arose about the quality of American's work, Sircal refused to make complete payment, and American filed suit seeking $2,723.30 plus interest on the contract, a declaratory judgment that it is not liable for allegedly defective seat backs, and attorney fees and costs. Sircal entered a special appearance, moved to dismiss for lack of personal jurisdiction and the judge granted the motion. He found that the contract was "properly venued" in Missouri because the contract specified that Missouri law would apply, and that the telephone negotiations were insufficient to constitute "transacting any business" under Ohio's long-arm jurisdiction statute.1
{¶ 4} American asserts three arguments in a single assignment of error set forth on Appendix A. It claims: (1) that the telephone contact initiated by Sircal was sufficient to provide personal jurisdiction under both R.C.
{¶ 5} Personal jurisdiction exists if a state's long-arm statute reaches the party over whom jurisdiction is sought and if the exercise of that jurisdiction is consistent with federal due process standards.2 Due process analysis requires showing both sufficient "minimum contacts" between the nonresident and the forum state, and that the exercise of jurisdiction would be consistent
{¶ 6} with "traditional notions of fair play and substantial justice."3 Although motions to dismiss under Civ.R. 12 are normally heard on the pleadings alone, a motion challenging personal jurisdiction can be decided with the aid of outside evidence.4
{¶ 7} Where a judge decides a Civ.R. 12(B)(2) motion without a hearing, a plaintiff need only make a prima facie showing of personal jurisdiction, while a decision made following an evidentiary hearing requires proof by a preponderance of evidence.5 Because this case was decided upon affidavits alone we apply the prima facie standard, even though it appears the preponderance standard is appropriate when American did not request a hearing or suggest that further evidence was available or would be helpful. In this case, however, the distinction is minimal because both parties rely on the same facts.
{¶ 8} Although a grant of a Civ.R. 12(B)(2) motion is considered a disposition otherwise than on the merits,6 the dismissal is, nevertheless, final under R.C.
{¶ 9} American contends that R.C.
{¶ 10} Nevertheless, even if we found that Sircal transacted business under R.C.
{¶ 11} The parties agree that American initiated contact with Sircal by submitting an unsolicited subcontractor bid for the project, and that Sircal then negotiated a contract with American whose employees performed the work in Missouri. Under these circumstances Sircal, which had not transacted business in Ohio before, did not reasonably subject itself to Ohio law; instead, it responded to American's desire to do business in Missouri and subject itself to the laws of that state.
{¶ 12} Who initiates the business contact is often a significant factor in determining whether a party deliberately pursued the benefits of doing business in that state16 and American, not Sircal, initiated that contact. Despite its claims that Sircal deliberately subjected itself to Ohio jurisdiction by negotiating the contract, American cannot avoid the fact that it initiated those discussions by bidding on a contract to be performed in Missouri.
{¶ 13} Although the contract's choice-of-law and mediation provisions do not mandate that Missouri be the forum, those provisions are significant when considering the entirety of the Ohio contacts and determining whether Sircal reasonably subjected itself to Ohio jurisdiction.17 The facts here do not suggest that Sircal reasonably anticipated being subject to suit in Ohio, and do suggest that Missouri has a considerable sovereign interest in acting as the forum, while Ohio has comparably little interest. We overrule the assignment of error.
Judgment affirmed.
APPENDIX — ASSIGNMENT OF ERROR
{¶ 14} "The trial court incorrectly granted defendant/appellee's motion to dismiss complaint for lack of personal jurisdiction because defendant/appellee transacted business with an Ohio resident and established sufficient minimum contacts with an Ohio resident so as to be subject to Ohio's long-arm statute and so that personal jurisdiction comports with due process requirements of the
Sean C. Gallagher and James D. Sweeney, JJ., concur.