*1 Argued petition review September for denied affirmed November December

C.O.W., INC., Appellant, al, Respondents. et MOTOR VEHICLES DIVISION 10462) (No. 101951, CA P2d 107 *2 Churchill, Salem, for argued W. the cause T. & With him on the brief was Churchill appellant. Leonard, Salem. for McClinton, Salem, C. the cause

Michael argued the brief was N. Cass. With him on respondent Floyd Clark, Lindauer, Marsh Salem. & Divi- Vehicles

No for Motor appearance respondent sion, Transportation. Department Lee, Schwab, Richardson

Before Chief and Judge, and Joseph, Judges.

JOSEPH, J.

JOSEPH, J. corporation, appeals

Plaintiff, a California from a judgment declaratory judgment dismissing its action against Cass, resident, a California ("defendant”) following of his allowance motion to quash process service of had in California.1 lawfully

Plaintiff that as owner it came into Freightliner of a 1966 truck and its title, certificate "took” that defendant the certifi cate and caused it to be reissued to him the owner of the Division, and that he claims to be acknowledge plaintiff’s truck and refuses to owner ship. prayed judgment "declaring Plaintiff for a adjudging rights and duties Plaintiff and vehicles; Defendants said relative to title to declaring legal further is the that Plaintiff true * * quash owners *.” moved Defendant service. supported by motion was his affidavit to the effect that "engaged he is a resident, California has not *3 Oregon,” transaction served in business in the State presently posses California, does not have knowledge location, sion of the vehicle or of its certain exclusively possess and it used when did it he California. The motion was allowed.2 No evidence was taken at the

hearing, and we limited are to the facts pleaded or stated in the State ex rel affidavit. Dictating Supply Dale, 242, 246, Advanced v. 269 Or (1974). 524 P2d 1404 Plaintiff "inher- maintains that the trial court had jurisdiction,” presumably ent under first sentence ("Division”) appearance 1The Motor Vehicles made Division has no appear, this litigation court. will As in the and its role was intended to be is passive, stakeholder, gaff like rather but armed with hook. attempted 2Defendant in his affidavit to raise non conveniens forum argues may ground. that dismissal court’s be sustained on that having jurisdiction may While a court decline to exercise it on the basis of (Broderick Rosener, 629, 643, non conveniens v. 55 CtS forum (1935); Gilbert, 79 L Ed 1100 US Oil Co. 67 S Ct Gulf (1947)), Myers 91 L Ed 1055 absent the issue cannot be reached. (1971). Brickwedel, 457, 464-65, 486 P2d 1286 *3 14.010,* because, of ORS it the issue is "who says, is should be certificated as the owner of a truck which titled, and licensed in this state.” There is registered no claim that the truck is now or was in at the Oregon time defendant obtained of it or allegedly possession the former certificate of title. So the only "property” lan meaning within the of the jurisdictional "title,” is the either as an abstract or a guage concept record in the Division. intended, be synony

If would an abstraction is beg ques that would mous with ownership; defendant this: It sued do is tion. What would foundation state, in this as the asserting jurisdictional in the Division’s of "title” is that record controlling by altered effectively "title” be only files. Because can that 481.110(2),4 it follows with ORS compliance brought effectively in the "title” is Division bringing can properly and defendant within the court’s power in an court. its interests to defend required to a claim effect, In to amount appears in sub has been in the state property "title” is or sequestered stance attached of the lawsuit. subject matter constitutionally. or wash, factually That will not is not owner the Division a "title” out of Factually, 481.117 states part: ORS ship. when the actions, proceedings "In all suits or criminal vehicle, of, motor to, right or involved, registra- the record

trailer or semitrailer is files and records of license, in the appears tion and as it subject of a court of this person 3 "Nonatural state, court, state, or be a appear be found within in the or unless he only therein; thereof, case property and in the last resident or have jurisdiction attached.” property the time the at the extent of such trailer or presents satisfactory tion for and is vehicle has been duty, issued or furnished "No unless the registration semitrailer, granted applicant previously evidence that a certificate of card or number whether an official certificate of the division or therefor, issued original at the same plates issues or applicant. officer for title of such time, duplicates, any charged with such * * *” makes motor covering vehicle, shall applica- *4 vehicle, such or ^[76] ownership right or is of prima division facie evidence * * *” of such vehicle. The here is a about litigation plaintiff whether dispute or defendant is the owner of vehicle. While that issue might be of a helped by possession to resolution valid title, certificate of it would not necessarily be resolved aby declaration of the Division’s duties. is Ownership strictly only plaintiff an issue between and defendant.

A more vital defect is that argument plaintiff’s constitutionally base its cannot the title document foundation. To allow that would be in effect to permit to be done of what equivalent Delaware was denied the to do in power Shaffer Heitner, 2569, 433 US 186, 97 Ct 53 L Ed 2d S (1977).

Jurisdiction in an action against non-resident defendants was asserted under statute permitting sequestration by the state having court documents situs in Delaware which were evidence of defendants’ corporate ownership interests. decision marked the one hundredth anniversary and death of the jurisdictional doctrine in Pennoyer 95 US Neff, 24 L Ed 565 a state could exercise solely on the basis presence property state, in that if the even were not property itself the Instead, matter subject litigation. court said,

"We conclude that juris- all assertions of state-court diction must be according evaluated to the standards set forth in International v. Washington, [Co. Shoe (1945)], 66 S Ct L progeny.” 90 Ed 95 and its 433 US at 212.

Although not an attach- case does involve ment, or the result sequestration formality, analogical is the By same. the Division a because it making party records, has the a determination by requesting duties, attempting put Division’s in the or position appearing generally *5 its inter- suffering against an undefended judgment due ests. tells us that is not constitutional Shaffer process. are jurisdiction The other bases for ORS purported 14.035(l)(a) (b).5 test, we

In the of the business” "any application in its "unrestricted "any” is meant recognize (Dickinson Leer, 274, 255 sense” Or comprehensive (1970)). 276, Still, not told 465 P2d we are for a certificate of pleading application we shown transaction, was a nor have been business that that act was one any authority that even suggests it was in no reasonable doing Assuredly business. this defend sense business between this ant. ex rel White Lbr. v. Or State 448 P2d this view. supports a act within tortious That leaves "commission Lbr., says: this state.” supra, * * * cases, criteria can said to "From the three jurisdic- in personam limits of define outer First, defendant must single tion based act: acting in privilege avail of the purposefully himself in consequences causing important the forum state or of Second, from action must arise that state. the the cause of the defendant’s consequences the forum state of in defendant or the Finally, of the activities. consequences enough the activities must have a substantial of those activities to make the with the forum state connection reasonable. the defendant exercise of over * * be satis- might arguably the first criterion Although Unlike the situation case, in is not. fied this second 5 "(1) Any person, corporation or a citizen or a firm or whether not state, any who, agent, person through this in or does resident of subsection, person thereby such actions enumerated in this submits and, individual, representative personal if an state, proceeding any of action or suit or the courts of this cause arising following: from of the "(a) state; any business within this The transaction of ** "(b) within this state *.” The commission of a tortious act Myers, n could be supra, complaint where actionable read to have a tort which became pleaded there is because of acts that took in Oregon, place which would nothing support this complaint conclusion that cause of action arose plaintiffs and the Oregon. only reading complaint fair unrebutted the acts of affidavit of defendant taking of the truck and the certificate took acts, place they California. Those if occurred and wrongful, were amounted to a conversion in completed *6 California, which follows the common law definition that conversion is act of dominion wrongfully exerted over another’s in denial of or personal property inconsistent with English Ralph rights therein. Ford, Williams 17 Cal. 3d App. 95 Cal Rptr (2d 1971). Dist Plaintiff’s argument that a "fraud” took place this state is not well developed, is understandable because nothing in the complaint could be read to allege a cause of action for fraud. The "long arm” could not reach this defendant. Compare State ex rel Academy Press Beckett, 715-718, (1978).6 581 P2d 496

Affirmed.

LEE, J., dissenting. The "stiff arm” treatment majority’s Oregon’s (ORS 14.035) arm” statute dis- "long me to compels sent.

This is a declaratory judgment which proceeding a plaintiff, California corporation, sought litigate of a motor ownership registered Oregon. vehicle The reference, complaint documents incorporated, showing vehicle was one of the items included dissent, misunderstanding The in addition to the tort which the plaintiff of, complains suggests by attaching complaint hotchpot separate of documents about a transaction that defendant is not about, to, even party to have known let alone have been a long-arm jurisdiction. authority support can create Relevant Roc, interesting curiosity. that would at least be an Like the it has never existed, carry anything. it so cannot 4, 1975,

in a sales contract dated executed February seller, Portland, Oregon, between a who resided in The California documents corporation buyer. further that seller holder of an Inter- show was the Certificate, May state Commerce Commission issued authorizing him to haul "shingles shakes” from 19 named counties "to Oregon points California” and that escrow instruc- partially executed tions, thereto, existed, naming and amendments bank as escrow in connection with the Oregon agent, The sale of the vehicle. Division of the Motor Vehicles State of as a defendant named apparently Defendant capacity. because of its "stake-holder” only is a California resident "without allegedly, Cass who certificate, took the which authority,” blank, it seller had endorsed in and caused "to be reissued in his own name.” states: complaint "VI contends: "Plaintiff the aforesaid now the owner of "1. That 21338; AP Serial No. Freightliner,

White 9,1976, was owner July Plaintiff That or about "2. Freight- of the above-described and in Title, the Certificate holding liner then and was B. and Billie by Wiley M. Whittaker in blank endorsed Whittaker; *7 Cass July about "3. That on or Defendant Oregon authority took the without Certificate of aforesaid to be Title, caused same and No. to Defendant by application in his own name reissued Division; and Oregon Motor Vehicles Division Vehicles Oregon Motor That Defendant "4. show- of Title No. Certificate Oregon issued of the legal owner registered Cass as ing Defendant Freightliner. White aforesaid

"VII Cass contends: "Defendant aforesaid legal he owner "1. That truck; and Freightliner owed of a debt in payment to him title passed

"2. That to him.

"VIII Division, acting Oregon "Defendant Motor Vehicles it, solely on the issued records as submitted Certificate of Title No. 7623900035 to Defendant Cass.

"IX acknowledge "Defendant Cass refuses to Plaintiff legal Freight- true owner of the aforesaid White liner.” (Emphasis supplied.) was in Califor- Personal service obtained Cass upon nia. He and moved to service quash appeared specially "jurisdiction that the court lacked upon ground over his and the matter of the person subject In motion attached an support Cass dispute.” affidavit which stated in pertinent part: "* * * not, I at am resident of California and have action,

any time present engaged material Oregon. transaction of business in the State of "The vehicle described in Plaintiffs is no Complaint longer my possession and is believed to have been However, my stolen. when this vehicle was last possession, exclusively was used me in the State of Moreover, I California. have no information or reason that it is not located in believe still California. "I do not it will be a frequent Oregon, State great expense inconvenience and for me to there appear in answer to the Complaint.” Summons The motion to was refused to quash granted, plaintiff plead further and the court entered a judgment dismissal in favor of Cass. (1)

Plaintiff contends the court had "inherent jurisdiction” over the because the vehicle dispute (2) certificated in the "tests Oregon, jurisdic- for statute, 14.035, tion” Oregon’s under arm” ORS "long (3) were met either a or "tort” theory "business” there was "fairness” to Cass in the case. proferred I did dissent because it to me that the court appears 14.035(l)(a) have under Cass ORS because by having transacted "business within this state” I reissued, so do not reach the other issues.

[81] pertinent provides part: ORS 14.035 in "(1) firm Any person, corporation or whether or not state, who, person citizen or a resident of this in or through agent, any an does of the actions enumerated in subsection, and, if thereby person this submits such individual, personal representative jurisdic- to state, any of this as action or tion courts cause of arising any suit proceeding following: or from "(a) state; The transaction of business within this

:£ * ^[*] ^[*] "(4) suit Only proceedings causes of action or or arising asserted may from acts enumerated in this section

against a defendant in an action or suit or proceeding in which over such defendant is upon based this section. "* * * * *.” (Emphasis supplied.) Campbell,

In State ex rel Western Seed v. (1968), 262, 271, 442 P2d 215 cert den 393 US 1093 (1969), the court noted that ORS 14.035 had been copied from an Illinois statute and stated: exploit

"The Illinois statute was intended to the outer process litigants. limits of due in aid of Illinois See Currie, Long Eight Years Growth Arm: Illinois, Ill L F 533. It is Extended Jurisdiction 1963 U reasonable, therefore, to hold that a statute modeled should be interpreted after the Illinois statute broadly process permit.” as constitutional due will (Emphasis supplied.) Leer, In 465 P2d 885 Dickinson Or

(1970) employment , sued on a contract of made in and obtained service on defendant quash Alaska. The court denied defendant’s motion service and stated:

"* * * 14.035, to us that appears [A]s used ORS legislature intentionally 'any’ used the word in an every sense to include comprehensive unrestricted nature, transaction, legitimate regardless business of its sale, exchange purchase and is not to be limited to the or * *” * (Emphasis supplied.) of commodities. Or In State ex rel WhiteLbr. v. buyer plywood 124-25, 448 P2d 571 *9 seller to Florida call from telephone made a the grounds to quash moved Defendant in Oregon. there held that The court justice.” of "fairness and stated: jurisdiction defendant out-of-state over an jurisdiction "When the is whether question due-process the

challenged, may exercise forum the such facts are alleged of fair notions offending traditional without jurisdiction v. Co. Shoe Internat. justice. substantial play and L Ed 95 90 310, 316, 66 CtS Washington, (1945). in that question answer we can of favor If to impediment there is no constitutional jurisdiction, constitute, within holding facts busi (l)(a), transaction 14.035 meaning ORS of supplied.) (Emphasis this state.” ness within further stated: The court * "* * to compelled is not the defendant long So as had he has state with which in a distant defend himself been connection, said to have he cannot be relevant no * * *” justice. treatment or substantial denied either fair 127. Sulmonetti, at supra rel White Lbr. State ex supplied.) (Emphasis deter- enunciated a test to three-way

The Court then in mine the "outer limits of personam based on a act”: single "* ** pirst) defendant must avail purposefully acting in the forum state or of privilege

himself of the Second, consequences in that state. causing important consequences arise from the the cause of action must the forum state of the defendant’s activities. Finally, the of those consequences activities of the defendant or enough connection activities must have a substantial the forum state to make the exercise of with * * State ex rel White over the defendant reasonable. at 127. supra Lmbr. v. Beckett, Press v. Academy

In State ex rel (1978), a to 711, 581 P2d 496 which involved motion an by service in an action quash brought the court found author an Illinois against publisher, 14.035(l)(a) and stated: jurisdiction under ORS 'fairness’ as the test of adopted "This court has whether, due process, as a matter of constitutional required litigate Oregon,

nonresident can be the United States in by Supreme stated Court of Washington, Company International Shoe State US as follows: " ' * * * process requires only [D]ue order to a if he be subject not judgment personam, forum, territory in the he have certain minimum contacts with such that maintenance play the suit does not offend "traditional notions of fair ” justice”.’ (Emphasis supplied.) and substantial Further, cognizance Court took of Restatement (1971) § of Conflict of Laws 2d 37 which states: " ' A power judicial jurisdiction state has to exercise over an who individual causes in the state effects act done elsewhere with respect to cause action arising from these effects unless the nature of the effects *10 and of the individual’s to the state make the relationship ” jurisdiction exercise of such unreasonable.’ (Emphasis supplied.)

In the instant case Cass caused "effects” in Oregon the by having title to the vehicle in reissued his name. That act generated the cause of alleged action by The plaintiff. exact between relationship Cass the contract, sales vehicle, which included the Oregon the escrow, certificate, the "endorsed in blank” title is not clear from the state of the record but it is fair to infer that since those documents were made a of the part have some Under complaint they relevance. these I facts would hold that the reissuance of the title to the vehicle in has a substantial Oregon enough connection to make the exercise of over Cass reasonable. Heitner, 433 The reliance on majority’s Shaffer (1977), 2d 186, 2569, 53 L Ed 683

US 97 S Ct the sequestra that case involved because misplaced stock, warrants, corporate and various tion of options, were unrelated the defendants which rights invoked expressly cause of action. court plaintiff’s Shoe Co. of Internat. the "fairness” standard 95, 161 154, L Ed 310, Ct 66 S Washington, in the issue State ALR 1057 which was crucial Sulmonetti, ex rel Lbr. v. Or White (1968). than P2d 571 rather supports pre- Shaffer cludes, Oregon jurisdiction. the the test enunciated Applying three-way Court in ex rel Lbr. v. at supra State in the instant concedes that majority case met of purposefully availing criterion first himself but acting of the privilege "conse- causing concludes that second criterion quences disagree in the forum state” was not met. I the latter conclusion. Plaintiffs need to determine the true was a ownership consequence vehicle direct of the action of Cass in having title reissued name. As to the third of whether the act of criterion having the title reissued had a "substantial enough connection with the forum state to make the exercise reasonable,” over I the defendant again reach an affirmative that act conclusion because was the very genesis of cause of action. plaintiffs (1)

Taking into account that: seller (2) a resident of Oregon; Oregon bank was the (3) escrow the vehicle was in Ore- agent; certificated (4) gon; seller who endorsed the certificate blank (5) was an resident; and had the title Cass — reissued in Oregon should be fairness, Oregon the forum litigate vehicle ownership regardless of where it at might physically any given moment in time. *11 therefore,

I I reverse; would dissent.1 respectfully 1 The "Roc” appear comments which majority footnote of6 opinion reveal accept a Neanderthal reluctance the standards of justice” espoused "fairness” and "substantial in Internat. Shoe Co. v. Washington, 154, 66 (1945), S Ct 90 L Ed 161 ALR 1057 progeny. They and its expressly approved Heitner, were Shaffer 186, 212, (1977), US 97 Ct majority S 53 L Ed 2d 683 on which the Oregon Supreme relies. previously The Court had Internat. noted Shoe Co. in State ex rel White Lbr. Co. v. 448 P2d 571 enunciating three-way before my I test on which relied in

[85] concerning personam revealing the evolution of dissent. A article Currie, Long Eight Years Arm: Growth Minois, U L F 533. I hearken to Extended Jurisdiction in chirping justice” and heralding and "substantial of the tomtits "fairness” deny any legendary "Roc.” resemblance