In this products liability action, the Douglas County District Court determined
I. FACTUAL AND PROCEDURAL BACKGROUND
Robinson bought a Sentry Gold alternator, a part remanufactured by NABCO, for his automobile in March 1996 from Western Auto. About 1 month later, Robinson was driving the vehicle when the “check engine” light alerted him to a problem. He stopped the automobile and opened the hood. The top of the battery flew off, striking him in the head. Robinson alleges that the incident occurred due to overcharging of the alternator, caused by defective manufacturing, and that as a result, he sustained significant acid bums and other injuries.
Robinson filed a petition in the Douglas County District Court against NABCO, a Michigan corporation, alleging that Nebraska has personal jurisdiction over NABCO pursuant to Neb. Rev. Stat. § 25-536 (Reissue 1995), the long-arm statute. He stated in his petition that sufficient contacts exist because NABCO marketed, sold, and distributed the alternator in Nebraska. NABCO filed a special appearance pursuant to Neb. Rev. Stat. § 25-516.01 (Reissue 1995), objecting that the trial court did not have personal jurisdiction over it.
On June 22, 2000, the court held a hearing on NABCO’s special appearance, and that bill of exceptions is in our record. Included therein is exhibit 1, the affidavit of Patrick E. Young, NABCO’s director of product reliability. In an order entered June 30, the trial court found that “pursuant to
International Shoe Company
v.
Washington,
Robinson filed an amended petition in which he added the allegation: “Defendant knowingly placed its product known as a Sentry Gold Alternator in the stream of commerce so that it would reach an ultimate consumer, such as the Plaintiff in the State of Nebraska.” NABCO responded with another special appearance, which the trial court sustained, and the court dismissed the action with prejudice on October 12, 2000, citing only the reasoning we quoted above from its ruling on the first special appearance.
Robinson appealed and requested a record of the second special appearance hearing. However, our transcript includes a November 22, 2000, affidavit from the trial judge’s reporter averring that “she made no record in connection with the case on September 21, 2000.”
II. ASSIGNMENTS OF ERROR
Robinson assigned two errors which he also argued and which we therefore consider: The trial court erred in failing to produce a record of the proceedings held on the second special appearance on September 21, 2000, and finding that Nebraska lacked personal jurisdiction over NABCO. See
Nelson
v.
Lusterstone Surfacing Co.,
III. STANDARD OF REVIEW
When a jurisdictional question does not involve a factual dispute, determination of a jurisdictional issue is a matter of law,
which requires an appellate court to reach a conclusion independent from the trial court’s conclusion on the jurisdictional issue.
Castle Rose
v.
Philadelphia Bar & Grill,
IV. ANALYSIS
1. Lack of Bill of Exceptions for Hearing Held September 21, 2000
Robinson argues that it was the trial court’s responsibility to ensure that all testimony or other oral proceedings were recorded by a court reporter. This statement is overly broad as explained by a close reading of the court rules quoted below. Robinson reasons that the court’s failure to make a verbatim record of NABCO’s special appearance on September 21, 2000, prevents this court from reviewing the trial court’s decision, necessitating a remand for preparation of a record of the hearing. The request for a remand, given there is no showing that an evidentiary proceeding occurred on September 21, is inappropriate.
Neb. Ct. R. of Prac. 5A(1) (rev. 2000) provides: “The official court reporter shall in all instances make a verbatim record of the evidence offered at trial or other evidentiary proceeding, including but not limited to objections to any evidence and rulings thereon, oral motions, and stipulations by the parties. This record may not be waived.” (Emphasis supplied.)
In
Norwest Bank Neb. v. Bellevue Bridge Comm.,
“ ‘Upon request, a litigant is entitled to a verbatim record of anything and everything which is said by anyone in the course of judicial proceedings; it is the duty of the court reporter to make such a record, and it is the obligation of the trial court to see to it that the reporter accurately fulfills that duty.’ ”
Norwest Bank Neb.,
Robinson appears not to appreciate that a different rule obtains depending on whether the proceeding is an evidentiary proceeding. The trial judge and his or her reporter must record the hearing if it is an evidentiary proceeding so that a bill of exceptions is available for appellate review of the evidence. See rule 5A(1). A hearing that does not include the offering of evidence need not be recorded, unless a party requests it. See rule 5A(2). These rules are simple and straightforward.
We have no indication that evidence was offered at the hearing on NABCO’s
Moreover, rule 5B(3)c allows for the preparation of a bill of exceptions, if the court reporter cannot prepare it, under the direction, supervision, and certification of the trial court. We read this rale as applying only when there was an evidentiary hearing. The obvious problem here is that Robinson did not avail himself of this rule, did not make any showing that there had in fact been evidence offered on September 21, 2000, making a bill of exceptions mandatory, or make a request that this hearing be recorded — also making the recording of a nonevidentiary proceeding mandatory. Absent such showing, we presume compliance with the law by the trial court and the court reporter — meaning that there was no evidence adduced on September 21 and no request that a nonevidentiary proceeding be recorded. As a result, we have no basis to order a remand to prepare a record that Robinson has not shown should exist. This assignment of error and suggestion for remand lacks merit.
2. Does Record Show Nebraska Has Personal Jurisdiction Over NABCO?
Failing a remand, Robinson contends that the record, which includes his amended petition and Young’s affidavit, is sufficient to show that the trial court erred by finding that Nebraska lacked personal jurisdiction over NABCO. Personal jurisdiction is the power of a tribunal to subject and bind a particular entity to its decisions.
Higgins
v.
Rausch Herefords, 9
Neb. App. 212,
The trial court’s October 12, 2000, order finding that Nebraska lacked personal jurisdiction over NABCO is a final, appealable order because it dismissed Robinson’s action with prejudice. An order is final and appealable if it dismisses an action with prejudice. See
Busboom
v.
Gregory,
Before a court can exercise personal jurisdiction over a nonresident defendant, the court must determine, first, whether the long-arm statute is satisfied and, if the long-arm statute is satisfied, second, whether minimum contacts exist between the defendant and the forum state for personal jurisdiction over the defendant without offending due process.
Holste
v.
Burlington Northern RR. Co.,
Nebraska’s long-arm statute, § 25-536, provides in pertinent part:
A court may exercise personal jurisdiction over a person:
(1) Who acts directly or by an agent, as to a cause of action arising from the person:
(a) Transacting any business in this state;
(b) Contracting to supply services or things in this state;
(c) Causing tortious injury by an act or omission in this state;
(d) Causing tortious injury in this state by an act or omission outside this state if the person regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state;
(2) Who has any other contact with or maintains any other relation to this state to afford a basis for the exercise of personal jurisdiction consistent with the Constitution of the United States.
The Due Process Clause of the 14th Amendment operates to limit the power of a state to assert in personam jurisdiction over a nonresident defendant.
Higgins
v.
Rausch Herefords, supra; Dunham
v.
Hunt Midwest Entertainment,
The trial court did not cite to a particular subsection of this statute in its October 12, 2000, order sustaining the special appearance, but it relied upon
Internat. Shoe Co.
v.
Washington,
(a) General Jurisdiction, Aspect of Personal Jurisdiction
Determining whether Nebraska can exercise personal jurisdiction over a nonresident defendant requires that we review the issue in terms of both general and specific jurisdiction. See,
Higgins v. Rausch Herefords, 9
Neb. App. 212,
In a hearing on a special appearance, an affidavit may be used to prove or disprove the factual basis for a court’s assertion or exercise of personal jurisdiction over a defendant.
Williams v. Gould, Inc.,
Upon the filing of a special appearance, the plaintiff has the burden to establish facts which demonstrate the court’s personal jurisdiction over the defendant.
Dunham
v.
Hunt Midwest Entertainment, 2
Neb. App. 969,
(b) Specific Jurisdiction, Another Aspect of Personal Jurisdiction
If a defendant’s contacts with a forum state are neither substantial nor continuous and systematic, but the cause of action arises out of or is related to the defendant’s contact with the forum state, a court may assert specific jurisdiction over the defendant depending on the quality and nature of such contact.
Higgins
v.
Rausch Herefords,
supra;
Dunham
v.
Hunt Midwest Entertainment, supra.
In
Higgins,
we quoted
Lake
v.
Lake,
“(1) [T]he nonresident defendant must purposefully direct his activities or consummate some transaction with the forum or residents thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.”
“Purposeful availment” means that the defendant’s connection with the forum state must be deliberate and substantial, involving significant activities or continuing obligations. Id. The connection cannot be random, fortuitous, attenuated, or the result of another party’s unilateral activities. Id., citing Dunham v. Hunt Midwest Entertainment, supra. The foreseeability which is crucial to due process is that the defendant’s conduct in connection with the forum state is such that he or she should reasonably anticipate being haled into court there. Dunham v. Hunt Midwest Entertainment, supra.
In both
Higgins
and
Dunham,
there was an issue as to whether advertising within the forum state established sufficient minimum contacts for Nebraska’s exercise of personal jurisdiction, general and specific, over the nonresident defendants. Here, there is no evidence whatsoever in the record that NABCO advertises in Nebraska; plus, Young states in his affidavit that
NABCO does not sell to retail customers. We simply cannot find
(c) “Stream of Commerce” Theory of Specific Personal Jurisdiction
Robinson argues that his amended petition, alleging that NABCO “knowingly placed its ... Sentry Gold Alternator in the stream of commerce so that it would reach an ultimate consumer, such as the Plaintiff” in Nebraska, states sufficient facts to show that Nebraska may subject NABCO to its jurisdiction. He cites
Hetrick
v.
American Honda Motor Co., Inc.,
Robinson argues that because NABCO intended to place the alternator in the “stream of commerce,” NABCO must have expected the alternator would be installed in a vehicle in Nebraska owned by a Nebraska resident, making the company subject to the personal jurisdiction of Nebraska. But a more recent product liability case decided by the Nebraska Supreme Court extends the
Hetrick
analysis. In
Wagner v. Unicord Corp.,
There was no evidence that NABCO manufactured products with knowledge or the intent that they be sold in Nebraska. Young’s affidavit shows that NABCO delivered goods to Western Auto/Advanced Automotive distribution centers in Kansas, North Carolina, Ohio, Texas, and Missouri — but not to Nebraska. However, in Wagner, the Nebraska Supreme Court noted that the plaintiff had failed to establish that Unicord had any expectation that the Iowa delivery was not a final sale. In the instant case, Young’s affidavit stated that NABCO does not control how Western Auto/Advanced Automotive distributes its products after receiving them from NABCO. Nonetheless, it is reasonable to assume that NABCO knew its remanufactured electrical automobile parts would be sold by the independent distributors including the Western Auto/Advanced Automotive in Missouri to an end user who could be a Nebraska resident, such as Robinson.
Thus, we turn to Asahi Metal Industry Co. v. Superior Court, supra, where an individual sued Asahi Metal Industry Co., Ltd. (Asahi), a Japanese manufacturer of motorcycle tire tube assemblies, for an accident in California which killed his wife and injured him when the rear tire of his motorcycle exploded. The individual’s claims against the Taiwanese tire manufacturer, who had received valve stem assemblies from Asahi, and all other defendants were settled. The Taiwanese tire manufacturer filed a cross-complaint seeking indemnification from Asahi. The U.S. Supreme Court found that California lacked personal jurisdiction over Asahi, although a manager of the Taiwanese company averred that Asahi “ ‘ “was fully aware that valve stem assemblies sold to [the Taiwanese company] and to others would end up throughout the United States and in California.” ’ ” Id. at 107. The Court premised its decision on the idea that “a defendant’s awareness that the stream of commerce may or will sweep the product into the forum State does not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum State.” Id. at 112.
The Supreme Court noted that Asahi did not conduct business in California; lacked an office, agents, employees, or property in the state; did not advertise or solicit business in California; and did not create, control, or employ the distribution system that brought its tire valve stems to the state. Id. The Court also based its decision on the idea that California’s exercise of personal jurisdiction over a foreign company would be “unreasonable and unfair” because Asahi would have to defend itself in a foreign legal system — and because Asahi’s dispute with the Taiwanese company, an indemnity action, would be submitted to California’s judicial system when the state and individual plaintiff had “slight interests” in the outcome of the dispute. Id. at 116.
Although NABCO is not a foreign corporation for whom appearance in Nebraska courts would be similarly burdensome, under
Asahi Metal Industry Co., supra,
and
Wagner
v.
Unicord Corp.,
V. CONCLUSION
In view of the foregoing authority, when all is said and done, it is Robinson’s failure to carry his burden to establish facts demonstrating personal jurisdiction over NABCO which mandates a finding that there is no general or specific jurisdiction in the Nebraska courts over NABCO. Thus, we are required to uphold the trial court’s sustaining of the special appearance and its dismissal of this action.
Affirmed.