Mozdy v. Lopez

• Decision Date: 08 December 1992
• Docket Number: Docket No. 125012
• Citation: 494 N.W.2d 866,197 Mich.App. 356
• Parties: Brian MOZDY, Plaintiff-Appellant, v. Paul Donald LOPEZ, Jack Treadwell, George McKeag d/b/a The Beanery, and The Kilarney, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 866

494 N.W.2d 866

197 Mich.App. 356

Brian MOZDY, Plaintiff-Appellant, v. Paul Donald LOPEZ, Jack Treadwell, George McKeag d/b/a The Beanery, and The Kilarney, Defendants-Appellees.

Docket No. 125012.

Court of Appeals of Michigan.

Submitted March 12, 1992, at Detroit.

Decided Dec. 8, 1992, at 9:10 a.m.

Released for Publication Feb. 17, 1993.

Meklir, Schreier, Nolish & Friedman, P.C. by Ira B. Saperstein, Southfield, for Brian Mozdy.

Vandeveer Garzia by Robert D. Brignall, Detroit, for The Beanery.

Garan, Lucow, Miller, Seward, Cooper & Becker, P.C. by Thomas W. Emery and Nancy J. Bourget, Detroit, for The Kilarney.

Before RICHARD ALLEN GRIFFIN, P.J., and HOLBROOK, and REILLY, JJ.

PER CURIAM.

This case concerns whether two Canadian businesses purposefully availed themselves of the privilege of conducting business in Michigan, thereby subjecting themselves to the personal jurisdiction of a Michigan circuit court. We find that neither business had sufficient minimum contacts in Michigan to warrant exercising jurisdiction over them.

The relevant, undisputed facts show that defendant Paul D. Lopez, plaintiff Brian Mozdy, and Michael Krushlin drank two pitchers of beer during lunch before driving to Windsor, Ontario. In Windsor, the group went to The Kilarney, a bar featuring nude dancers, where they drank alcohol for approximately two hours. The three men then went to The Beanery, yet another bar featuring nude dancers, where they consumed alcohol for another thirty to forty minutes. On the way home, their vehicle, being driven by defendant Lopez, crashed into a cement barrier near Jefferson Avenue and the northbound Lodge Expressway in Detroit. The accident threw plaintiff, who was sitting in the back seat, from the car.

Plaintiff filed an action against Lopez and later added The Kilarney and The Beanery as defendants. Plaintiff sought over $10,000 in damages from the businesses, asserting that they violated the Ontario dramshop act. On December 1, 1986, the Wayne Circuit Court entered an order granting summary disposition to The Kilarney and The Beanery for lack of personal jurisdiction pursuant to MCR 2.116(C)(1). Plaintiff appeals that order as of right.

The Kilarney is a Canadian partnership, and The Beanery is a Canadian corporation. Plaintiff contends that jurisdiction over these defendants exists pursuant to Michigan's long-arm statute. M.C.L. Sec. 600.715; M.S.A. Sec. 27A.715 provides as follows:

The existence of any of the following relationships between a corporation or its agent and the state shall constitute a sufficient basis of jurisdiction to enable the courts of record of this state to exercise limited personal jurisdiction over such corporation and to enable such courts to render personal judgments against such corporation arising out of the act or acts which create any of the following relationships:

(1) The transaction of any business within the state.

(2) The doing or causing any act to be done, or consequences to occur, in the state resulting in an action for tort.

(3) The ownership, use, or possession of any real or tangible personal property situated within the state.

(4) Contracting to insure any person, property, or risk located within this state at the time of contracting.

(5) Entering into a contract for services to be performed or for materials to be furnished in the state by the defendant.

There are two issues in deciding whether a court of this state can exercise jurisdiction under this statute. First, whether the rules of statutory construction support the exercise of jurisdiction over the defendants. Second, whether the exercise of limited personal jurisdiction violates the Due Process Clause of the Fourteenth Amendment. Witbeck v. Bill Cody's Ranch Inn, 428 Mich. 659, 666, n. 3, 411 N.W.2d 439 (1987); Walter v. M Walter & Co., Inc., 179 Mich.App. 409, 412, 446 N.W.2d 507 (1989). However, we do not consider the issue of statutory construction because we conclude that the exercise of long-arm jurisdiction under these circumstances would violate due process.

Our Supreme Court in Witbeck, 428 Mich. p. 666, 411 N.W.2d 439, stated:

The Due Process Clause of the Fourteenth Amendment "does not contemplate that a state may make binding a judgment in personam against an individual or a corporate defendant with which the state has no contacts, ties, or relations." Int'l Shoe Co. v. Washington, 326 US 310, 319; 66 S Ct 154 [159-60]; 90 L Ed 95; 161 ALR 1057 (1945). The "constitutional touchstone" is whether the defendant purposefully established "minimum contacts" in the forum state "such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " Id., 316 . Burger King Corp v. Rudzewicz, 471 US 462, 474; 105 S Ct 2174 [2183]; 85 L Ed 2d 528 (1985).

Whether sufficient minimum contacts exist between a nonresident defendant and Michigan to support exercising limited personal jurisdiction is determinable by a three-part test. First, the defendant must have purposefully availed itself of the privilege of conducting activities in Michigan, thus invoking the benefits and protections of this state's laws. Second, the cause of action must arise from the defendant's activities in the state. Third, the defendant's activities must be so substantially connected with Michigan to make the exercise of jurisdiction over the defendant reasonable. Moore v. McFarland, 187 Mich.App. 214, 218, 466 N.W.2d 309 (1991); Walter, 179 Mich.App. p. 413, 446 N.W.2d 507.

Although the plaintiff bears the burden of establishing the jurisdictional facts, a court must resolve a motion for summary disposition for lack of personal jurisdiction on the evidence submitted by both parties. MCR 2.116(C)(1) and (G)(5); L.T. Elsey & Son, Inc. v. American Engineering Fabrics, Inc., 191 Mich.App. 146, 148, 477 N.W.2d 483 (1991).

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