565 N.E.2d 607 | Ohio Ct. App. | 1988
Appellant law firm Friedman Chenette Co., L.P.A. appeals from the trial court's orders quashing service of process and dismissing the complaint on the grounds that the court lacked jurisdiction over the person of appellee law firm Speiser, Krause Madole, P.C. ("SKM"), a New York professional corporation. The trial court had conducted a hearing where it accepted evidence by way of affidavits, depositions and oral testimony.
The facts giving rise to the filing of this lawsuit have their beginnings near St. Croix of the United States Virgin Islands. In June 1980, a United States Navy helicopter crashed approximately three miles from St. Croix; all eight persons aboard were killed. Among the victims were Joseph R. Coot, an Ohio resident, and two Puerto Rican civilians employed by the Radio Corporation of America ("RCA"): Zayas and Scheerer.
Coot's widow retained Friedman Chenette, a Cleveland firm, to pursue possible tort claims against the United States, United Technologies Corporation (the manufacturer of the helicopter) and General Electric Corporation (the manufacturer of the helicopter engines). Realizing it lacked expertise in the complex problems of aviation litigation, Friedman Chenette telephoned SKM, a firm specializing in such litigation.
SKM expressed an interest to act as co-counsel for the Coot claim, but indicated that representation of a single crash victim would not be profitable. SKM urged Friedman Chenette to contact the estates of the remaining crash victims in order to convince them to join in the Coot litigation.
Attorney Chenette flew to Puerto Rico and spoke with representatives of the Zayas and Scheerer estates. Chenette learned that those families had retained the services of David Cobin, a New Jersey lawyer. Chenette returned to Cleveland and contacted Cobin. On June 9, 1981, Friedman Chenette and Cobin met at SKM's New York City offices.
At that meeting, the attorneys orally agreed to a co-counsel arrangement although they had not yet received approval from the clients. Friedman Chenette prepared and mailed two identical contracts, one for the Zayas claim and one for the Scheerer claim. The terms of the contracts, however, expressly excluded Cobin. A new draft was prepared, naming Cobin, SKM and Friedman Chenette as co-counsel. The Scheerer and Zayas cases were divided into two groups: Friedman Chenette would share the attorney fees generated against RCA and United Technologies only, and not to fees generated, if any, from the United States government under the Federal Tort Claims Act. It was anticipated that SKM would handle the liability aspects of the litigation *13 Cobin would handle the damage aspects.
A fee contract was signed by the attorneys and then approved by the clients on August 31, 1981. On April 23, 1982, an executed copy of the Zayas and Scheerer retainer agreements, specifically incorporating the letter agreement of June 11, 1981, was returned to Friedman Chenette and signed by it. By that time, lawsuits against United Technologies and General Electric had been filed in the United States District Court for the Eastern District of Michigan. Those suits were later transferred to the District of Connecticut.
The anticipated claim under the Federal Tort Claim Act was not filed. Instead, suit was brought under the Suits in Admiralty Act and the Public Vessels Act. These actions were filed in the District of Puerto Rico and were transferred to the District of Connecticut under federal rules governing multidistrict litigation.
The suits against the manufacturers were settled and attorney fees were disbursed without incident. The claims against the United States were settled, with SKM and Cobin splitting the twenty-five percent contingent fee per the June 11, 1981 agreement. Friedman Chenette objected, arguing that the agreement excluded it only from attorney fees recovered under the Federal Tort Claims Act. Since the Zayas and Scheerer estates recovered under the Suits in Admiralty Act, Friedman Chenette maintained that it was entitled to a proportionate share of the attorney fees.
Friedman Chenette filed this action in Ohio against SKM seeking a declaratory judgment of its rights under the fee sharing agreements, an accounting of those fees held by SKM, and asserting a contract claim. SKM filed a special appearance and moved to dismiss the complaint for lack of personal jurisdiction pursuant to Civ. R. 12(B)(2) and to quash service of process made pursuant to Civ. R. 4.3(A) (1). Following an evidentiary hearing, the trial court granted both motions. Friedman Chenette appeals, assigning as error the granting of the motion to dismiss.
Out-of-state service of process made in this case was valid, if at all, under Civ. R. 4.3(A)(1), relating to transacting any business in the state of Ohio. In order to establish jurisdiction over a person not within the territory of the forum state, fair play and substantial justice require that certain "minimum contacts" be established. International Shoe Co. v. Washington
(1945),
While the plaintiff is entitled to have the factual allegations sustaining personal jurisdiction construed in its favor, plaintiff must nevertheless first plead or otherwise make a prima facie showing of jurisdiction over defendant. Jurko v. JobsEurope Agency (1975),
The foreseeability "critical to due process analysis * * * is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there. * * *" World-Wide Volkswagen Corp. v. Woodson
(1980),
In this case, SKM was a "passive" defendant; that is, SKM did not physically appear in Ohio and was first solicited by plaintiff. Id.; Monroe Distributing Co. v. McClung (Mar. 31, 1983), Cuyahoga App. No. 44991, unreported; see, also, NRM Corp.
v. Pacific Plastic Pipe Co. (1973),
On the facts presented in this appeal, we conclude that Friedman Chenette failed to establish personal jurisdiction by a preponderance of the evidence. Accordingly, the trial court properly dismissed the complaint and quashed service of process. The assigned error is overruled.
Judgment affirmed.
KRUPANSKY, P.J., and MATIA, J., concur.