*2 P.J., JACKSON, Judges Before BENCH, P.J., J. BILLINGS, Associate OPINION JACKSON,Presiding Judge:

INTRODUCTION (Mecham) Joseph Mecham Appellant summary grant of court's district appeals the (Chase), Bank Manhattan judgment to Chase Landmark creditor of and secured a lender (Borrower). appeals He also Petroleum, Inc. dismissed court's Order district corporation, Con- against a Colorado claims (Consoli- Inc. Transportation, &Oil solidated the own- dated), alleges was whom co-operator co-owner, er, operator in- he was property on which equipment jured. Billings affirm the Judges Jackson summary judgment grant of district unanimously affirm We favor of Chase. the conclusion that the district court could would resolve dispute. addition, Bor- Consgol- general jurisdiction not exercise over rower required monthly have meet- Judges Billings idated. and Bench ings reverse with Chase to projected discuss ex- the district court's conclusion that it could penses. power Chase had the approve Consgol- specific jurisdiction not exercise disapprove expenses greater $2,500. than idated, Judge dissenting Jackson in see- disagreement If a *3 arose, then average of II(B)

tion of the opinion. main previous two expenses months' was used. T6 The granted district court summary BACKGROUND judgment Chase, to concluding that Chase 1995, In 1994 and Mecham was em- was principal not a of Borrower. It also ployed by (Adler) Adler Hot Oil Service aas granted Consolidated's dismiss, motion to hot oil September truck driver. of 1994 concluding that it could exercise gen- neither February 1995, and Shirley Hebert, of on eral nor jurisdiction Consolidated, behalf of telephoned Adler, Consolidated. appeals Mecham both the contracting on each occasion with Adler for grant summary of judgment grant and the of performance of hot oil services.1 Mec- Consolidated's motion to dismiss. injured ham was performing while the Feb-

ruary brought for, contract. He a suit inter ISSUES AND STANDARDS OF REVIEW alia, negligence against Consolidated and 17 Mecham appeals Borrower. first Mecham compa- describes both owners, co-owners, nies as operators, grant court's of summary or co- judgment Chase pursuant operators to Rule 56 of portions land[,] "of certain pe- of Utah Rules of Civil Procedure. products[, "Summary troleum storage judgment ap or] tanks is on propriate only genuine which the when no causing inju- incident issues of [Mecham's] material ries fact exist Chase, occurred." and the moving party He also sued se- judgment entitled Borrower, cured creditor as a of matter of alleging law." Consol., Jones v. ERA Brokers 61,-¶ Chase exercised sufficient 2000 UT control over Bor- 8, 1129; 6 P.3d rower see as to be also principal, considered its Utah R. and Civ. P. b6(c). "Because responsible was thus entitlement summary Borrower's actions. judgment question law, is a of we accord no 1994, 14 In Chase and agreed Borrower deference to the trial court's resolution of the refinery that the injured where Mecham was legal presented." T, issues K & Inc. v. Ko closed, should be and that Borrower's assets roulis, 623, (Utah 1994). 888 P.2d would either be sold or maintained for later " * "We determine whether the trial disposal. They agreed also to the use of two court erred in applying the governing law bank proceeds accounts-one for the and whether the trial correctly held assets, sale of expense one to serve as an disputed there were no issues of materi account for the sale and maintenance of Bor- *" al fact." Langford, Berenda v. rower's assets. Chase had exclusive access (Utah 45, 1996) (citations omitted). proceeds to the sales account. Chase insist- ed that plant manager, Means, Richard 18 Mecham challenges the district employee an refinery, continue to be agency determination that no rela employed refinery to maintain the tionship existed between Chase and Borrow pending assets disposal. their He was to be er. argues He that "the trial court err[ed] paid expense out of the account. finding that there genuine was no issue of Also, required Chase was to be in- material fact as to whether [Chase] was a any of principal/agent greater $250,000 formed of sale than [Borrower] and that right object had the to that If sale. Chase judgment [Chase] was entitled to as a matter objected, accounting of law." Other than this ultimate determina- department Utah," 1. Other shipped uct that is then than these out contracts, Consolidated's of con- tacts completely comprised with Utah are potential arising of contact out of its informational telephone website, "occasional calls and electronic requests com- visitors to contact Con- spot purchases munications to transact prod- solidated. cites section appeal, agency an regarding the existence

tion support Agency to allege that Restatement does relationship, Mecham Borrower's became theory Chase dispute. are fact of material any issues Borrower's liable for thus agency and is principal, an of whether question Normally "the the Restate- fact, This section which we acts. negligent is one relationship exists con- Valcarce ment assumes of discretion." "A creditor provides, for an abuse review mutual for the business Fitzgerald, his debtor's trol of debtor, may be- as to and his himself the evidence benefit "[wlhere liability the acts or different with authority undisputed, principal, agent's come in connection may not be the debtor logical inferences -of transactions reasonable is one a secured therefrom, question Id.2 Because [this] the business." drawn at 891-92 principal its debtor's may become law." Am.Jur.2d creditor un- agent," underlying through evidence (2000). *4 person The in "either (Second) of agent section, is un- Chase's Restatement was Borrower der whether 14(0) a, argued be- Mecham § emt. Agency determi- Thus, court's the district disputed. principal relationship is existed Borrower's agency became no that low that nation Chase Means, cor- whom conclusion, through for we review person which and legal in a both thus Accordingly, agent. because He alleges id. is Chase's rectness. Mecham fact, inju- for his responsible of material no issues disputes argued that Chase Mecham "correctly of Bor- court result alleges district are the ries, that the he conclude which we disputed negligence. no issues were that rower's held there fact," determine "[wle. material rejected {11 However, district the applying the in erred trial court the concluding that argument, agency Mecham's agency to its governing law" determination. relationship existed between agency no (quotations and cita- Berenda, at 50 P.2d 914 (1) Means was and Borrower Chase omitted). tions "having Means on-site agent, so not Chase's agen- establish did not Next, appeals the district the sale oversee Mecham 19 some exercised relationship his claims unless Chase Order, cy dismissed which court's not," it challenges control," "did it Mecham actual against Consolidated. about Chase's anything could unusual that it not find court's conclusions "did the district creditor]," or secured a lender position [as nor general neither exercise appro- were the of Chase Because the actions and "that over Consolidated. jurisdiction position as its made not exceed [was] and did jurisdictional priate decision "pretrial there that appeal reasoned only, It documentary [this] evidence lienbolder." on further that Chase only legal ques allegation[s] or evidence presents were "no decision from that company Ar any management of part for correctness." are reviewed took that tions of assets the sale input to how Woodworking Mach. as Indus. guello v. (Utah challenges both Mecham performed." was conclusions. ANALYSIS Relationship with Means A. Chase's to Chase Summary Judgment Appeal of

I. affirm Because we opposition to In his memorandum not was that Means conclusion Summary Judgment, for Motion Chase's any principal the obli- 14(0) principal, liable accompanying section The comment ' in the normal thereafter gations incurred states: by who has now the debtor of business course merely a exercises security holder agent. point at which The his become his debtor acts of power business veto over the principal is that a becomes creditor speci- sales above purchases or by preventing control over de facto assumes which he prin- thereby a become does not amounts fied debtor, the terms whatever his conduct of manage- over the if he takes cipal. may be. debtor with his contract the formal person either business of the debtor's ment 14(0) (Second) § a Agency emt. Restatement con- what agent, and directs through an (1958). becomes made, be or may tracts may he agent, B. Chase's Relationship with Borrower Chase's we need not address Mee- argument (Second) ham's under Restatement little, Mecham offers any, legal if 14(0), that relationship Chase's analysis support challenge to the trial agency with Means created an relationship court's conclusion that Chase could not be between Chase and Borrower. said to have taken over management Borrower and was not principal. Borrower's In support argument of his legal argument solely based that Means became agent, Restatement Agency § correctly asserts "[algency that is 'the fidu- and two apply cases that this section of the clary relation which results from the manifes Restatement to dissimilar cireumstances.3 by tation of person Moreover, consent one to another he states following facts as the other shall act on his evidence behalf Chase exercised the necessary subject control, degree to his Borrower, and consent control over but he fails " other Welsh, so to act' Wardley Corp. v. apply any law or meaningful analysis to (citation them: Ct.App.1998) Chase was agree authorized to omitted). However, over monthly expenses preserv disagree ing the assets-if disagreement occurred, [Mecham] show [Means] was average previous of the two months' ex agent, prove [Chase's] he must [thus] penses used; Chase power had the (1) [Chase] manifested that [Means] could *5 agree disagree over the sale of the se (2) [it], act for accepted pro- [Means] the cured dispute arose, assets-if a it was set (8) posed undertaking, both [Chase] by tled accounting (8) Chase's department; and [Means] understood that [Chase] was Chase approve needed to any sale of assets in charge be of undertaking. the greater (4) $250,000; than Chase eventu words, other "an agency is created and ally became a shareholder of Borrower. authority actually very conferred much ¶15 Mecham's brief virtually contains no as a contract is made": meeting a legal analysis regarding argument. this His minds must exist parties. between the (Second) reliance on Restatement of Agency Moreover, "(aln case, and critical in this 14(0), § is essentially argument for lend agency relationship can arise at the liability. er Peoples See Fed. Sav. & Loan will and the act principal." Myrtle Ass'n v. Club, Beach & Yacht Golf (last (citations 182, Id. original) 764, alteration in 810 S.C. 425 S.E.2d omit- 773 (Ct.App. 1992) ("The ted). (Second) result, As a Restatement principles "[these of Agency doom 14(0) (1958) § arguments." supports concept [Mecham's] the Id. of To meet lender his burden, (1) liability Mecham alleges only under agency that the theory Chase where the borrower."); lender takes control of its insisted that Fran employed Means remain at the Freund, Note, ces E. Lender refinery Liability: manage the maintenance of Bor- Survey Theories, Common-Law 42 Vand. assets, of rower's salary Means's 855, L.Rev. (1989); 856-867 & n. 75 see paid approved out of the monthly expenses. generally, Hynes, J. Dennis Lender Liabili agree We do not that these two facts alone ty: The Dilemma the Controlling Credi of are sufficient to establish necessary three tor, (Summer 1991) (an 58 Tenn. L.Rev. 685 criteria. Accordingly, argument fails, alyzing (Second) the Restatement Agency and the district correctly court concluded 14(0) (1958)). § that Means was not agent. As a result, we address remaining argu- Mecham's jurisdiction 116 We know of no that has ment that effectively Chase took over applied liability lender personal a management person. of Borrower in setting, attempts as Mecham here. 4-37 CJ Plymouth Leucadia, Inc., Corp. Rock Fuel v. gagor's principal); Way Company Save Oil 842, 100 Mehlman, A.D.2d 474 NY.S.2d (citing 115 A.D.2d 496 NY.S.2d 537 (Second) 14(0) Restatement Agency § (relying (Second) Agen- Restatement holding mortgagee 14(0) liable on cy § contractual claims to hold there was a material issue of against mortgagor mortgagee exercised fact as to mortgagee became liable on necessary degree of control to become mort- against contractual mortgagor). claims this conclusion. support for legal 37.01, no provides §§ Zamore, Torts Business Joseph D. 2001) var- (explaining (Matthew Bender that because Further, assertion his 37.08 liability complete has con- lender under which "Chase settings above-listed ious facts Freund, LRev. 42 Vand. applied); fact, been issue of refinery," is not an trol over (same); Hynes, Tenn. n. 75 & conclusion, may 856-867 we actually a "is but (Second) of (same); Restatement L.Rev. Thus, we cannot Id. at disregard." liability may 14(0) (stating lender § Agency concluding erred say the district that and transac- "liability the acts apply to large such a did not exercise that Chase connection of the debtor tions principal- a as to establish degree control added)); Restatement (emphasis business" Accordingly, we affirm relationship. agent (stating emt. summary judg- grant of management "takes a creditor when ment to Chase. what ... and directs business the debtor's made, he be- may may not be contracts any principal liable Consolidated's principal, Grant of comes Court's District II. in the thereafter obligations incurred to Dismiss Motion by the debtor business course normal (Em- agent." general become has now A. General Jurisdiction today. added)). do so decline to We phasis address next 118 We this issue be- Indeed, not address we need lability conclusions lender district court's challenge held to the if we even cause manner, Mecham's general in this applied be either could not exercise it could liability on lender argument based negligence Consolidat jurisdiction over merits. on the fails discuss first ed, corporation. We a Colorado has supreme court jurisdiction. Our Mortgage Valley DeBry v. 117 In jurisdiction to [general] (Utah Ct.App.1992), "[flor stated *6 conducting sub exist, be defendant must which a the under principles the forth

we set activity may in the negligence local liability argument and continuous stantial lender neg liability for Woodwork Arguello "[Llender in v. Indus. Utah.4 succeed state." forum (Utah will not 1120, privity, party not 1122 a ligence 838 to ing Mach. unusual circum are there unless attach Mecham requirement, meet To opera lending normal exceed stances (1) "oc engages in Consolidated alleges that in the which acts lending institution tions. com and electronic telephone calls casional lending its carrying out manner normal spot purchases to transact munications parties." duty unrelated no to owes activities Utah," shipped out is then product any of the allege that does not Mecham Id. website (2) an informational it maintains and cireum- "unusual constitute he listed facts need it. We to contact requests visitors lending oper normal exceed[ed] stances that a web maintenance whether not address any legal provide does he Id. Nor ations." requirement the sufficiently meets site asser support such analysis that would activity in local and continuous "substantial had the if "argues that Chase tion. Mecham Mec- state," Id. forum disapprove approve power had allege that Consolidated not does necessarily control ham it monthly expenses, However, through use of he with Utah day day operations." contact purchases or by preventing debtor acts of his Thus, argument under analyze Mecham's we thereby does not specified amounts applicability of above sales DeBry, not address and need (Second) 14(0). principal." Restatement a Restatement become a. Agency § emt. (Sec- Moreover, A to the Restatement comment 14(0), ond) Mecham cites Agency § Torts Zamore, Business D. 4-37 6. See also Joseph assertion appears contradict his legal support, 2001) (Maithew (explaining Bender §§ 37.02[3] necessary to demonstrate he lists that facts to determine have considered courts what factors establishing princi- degree control amount excessive). is control if a lender's security relationship: "A holder pal-agent power over the business merely a velo exercises Thus, website.7 we consider contacts; defendant's acts or appli- calls, telephone occasional electronic commu long-arm cation of the Utah statute must nications, satisfy spot purchases requirements are sufficient to of federal due jurisdiction upon confer a Utah dis process." trict court. Henderson, Phone Directories Co. v. agree 1 19 doWe that "occasional tele 64, ¶ 12, (citation omitted). UT 8 P.3d 256 phone calls and electronic communications to party Neither " argues that Consolidated's spot purchases" transact constitute substan " " 'acts or contacts' '"implicate[ fail to ] tial and continuous contact such that it would " Utah under long-arm Utah statute" be reasonable "for [Consolidated] be ex (citation omitted). Id. Thus, I address the pected to be '[haled] into court' in Utah." prong. "nexus" Hotel, Inc.,

Buddensick v. Stateline Ct.App.1998)(quoting World- 1 21 challenges Mecham the district court's Woodson, Volkswagen Corp. Wide "(there U.S. conclusion that is not a sufficient 286, 291, 559, 564, 100 S.Ct. LEd.2d 490 nexus injury between the and the contacts of (1980). Thus, correctly the district court [Consolidated] the state of give Utah to concluded that general juris it did not have jurisdiction." the court argues He there is a diction over Consolidated. sufficient nexus negligence between his claim and Consolidated's acts or contacts because Specific B. Jurisdiction he "was when he was performing the infured Thus, respectfully

120 I contract.... my injury dissent from col- arose out of leagues regarding specific jurisdiction, the contract." to establish the re- nexus, would affirm quired the district court's conclusion he must show that Consolidat- that it specific jurisdiction could not exercise Utah, ed's contacts with in this case a con- tract, Consolidated. was the negligence basis for his claim. law, Arguello, three-part

Under Utah inquiry 838 P.2d at 1128. Because his injury used to determine juris- negligence arises from occurring while "(1) diction: the defendant's acts a contract being performed, or con- implicate tacts must Utah under the Utah cannot be said to have arisen out of the ] long-arm statute;[9 a 'nexus' ex- must Thus, contract. I would conclude that there ist plaintiff's between the claims and the no nexus between negligence prior state; 7. We note that ruling, to the district court's generating per- a substantial stated, counsel for flip my centage "I can through of its national sales revenue *7 generated computer, pull up from in-state customers. Everybody a site. in Utah can pull Inc., up Nga Tuyet computer a site on their from Thi Ho v. Jim's Consolidat- Enters. 2001 UT 63, ¶ 8 7, ed.... n. 29 P.3d 633. Now-but that in and of itself is not enough. pulling up Just the site that's not a implicating Acts long-arm Utah under Utah's presence in Utah because that would be similar include, statute [inter alia,]: just to an advertisement." "(1) any the transaction of business within this alleges Internet contact Mecham that Consolidat- state; appears ed had with Utah unrelated to Consoli- (2) contracting supply goods to services or in dated's website. state; this (3) causing within this state any Buddensick, the court considered whether warranty; tortious or breach of (1) corporate engaged defendant in is: (4) use, ownership, possession any state; (2) business in this licensed to do busi- state; real estate situated in this state; (3) owning, leasing, ness in this or con- (5) contracting any person, property, to insure (real trolling property personal) or assets in or risk located within this state at the time of (4) maintaining this state; contracting...." offices, employees, agents, (5) or bank accounts in this state; Phone Directories Co. v. Henderson, 2000 UT 64,-¶ present in that shareholders reside in this (quoting 8 P.3d 256 Utah Code Ann. 78- state; (6) maintaining phone listings or fax (Supp.1999)) ("Any person 27-24 ... who ... state; within advertising soliciting this acts, any following does of the enumerated sub state; (8) traveling business in this to this state jurisdiction mits himself ... to the of the courts etc.; by way salespersons, paying taxes arising of this state as to claim out of or (10) visiting acts)." (Alterations in this state; customers related to origi potential [such in nal.)). recruiting in this state; in this employees The Id. at 1128. or advertisements." "sales contacts acts or Consolidated's claims and Arguello's in- that determined supreme court at ¶ Henderson, 2000 UT See

with Utah. defendant's arise out jury not did at 1123. 256; P.2d Arguello, 888 12, 8 P.3d Utah, the defendant's with contacts court cor I Accordingly, believe Arguello's em- only advised representative exercise not that it could rectly concluded Ar- that caused machine how the ployer on Consolidated, and jurisdiction over operate more fixed to injury could be guello's dismissing Consolidat its Order affirm would The defen- efficiently. id. safely and ed. to undertake "did not representative dant's ma- to the repairs any changes or make CONCLUSION injury. Arguello's in chine," which resulted correctly concluded trial court 122 The contacts comparison, Consolidated's By Id. prin- Borrower's not become that Chase with a a contract on are based with Utah juris- general not have it does cipal and that in Colo- services perform corporation Utah However, for the over Consolidated. diction injured per- while rado, separate colleagues' my in forth set reasons contract. terms forming the essential conclusion below, the trial opinion out of Con- Therefore, claim arose jurisdiction specific not exercise it could that state, and a with contacts solidated's and its Order reversed over Consolidated specific exercise may properly Utah is also reversed. dismissing Consolidated jurisdiction over Consolidated. majority has erred I believe BILLINGS, P.J. Associate summary grant of affirming trial court's except "[ opinion, in the main I23 concur Bank, who did Manhattan judgment to Chase Judge II(B). I concur section appeal. in this file a brief not even bother the issue of opinion as to separate BENCH'S as to whether exists of fact genuine issue jurisdiction. specific Petrole relationship with Landmark I a mere lender. that of more than um was part and (concurring in BENCH, Judge therefore, believe, that issue do part): dissenting in resolved appropriately agency can be Fitzgerald, judgment. See Valcarce summary $24 in the conclusion I concur 1998) (stating 805, 314 substantial conducted has not Consolidated 9 agency rela of whether question "the so as activity Utah continuous fact"). is one of tionship exists jurisdiction in this expose itself however, the lead disagree, I state. If jurisdiction. analysis of

opinion's lead applies, and the long-arm statute

our does, nexus then the it opinion concedes in the lead explained As certainly there. App259 2002UT Mecham's em called opinion, Consolidated perfor Appellee, and contracted ployer Utah, in Utah Plaintiff STATE *8 performing While oil services. mance of hot v. injured in services, Colo those FRAUSTO, Defendant Richard Andrew injury to the contact nexus of the The rado. Appellant. quite clear. therefore state is the forum with Henderson, Co. Directories Phone No. 20000520-CA. 64,¶ 2000UT Appeals of Utah. Court of Consolidat- the nature 125 Because Utah, differs this case ed's contacts Aug. opinion, lead relied the case from Woodworking Mach. Industrial Arguello v. Arguello, P.2d 1120 were with Utah contacts

the defendant's