Keefe v. Kirschenbaum & Kirschenbaum, PC

CourtSupreme Court of Colorado
Citation40 P.3d 1267
Docket NumberNo. 01SA203.,01SA203.
PartiesIn re Darlene KEEFE, Plaintiff, v. KIRSCHENBAUM & KIRSCHENBAUM, P.C., a New York professional corporation; and Kenneth Kirschenbaum, individually, Defendants.
Decision Date11 February 2002

Eric R. Jonsen, Broomfield, CO, Attorney for Plaintiff.

McConnell, Siderius, Fleischner, Houghtaling & Craigmile, LLC, Walter N. Houghtaling, Troy R. Rackham, Denver, CO, Attorneys for Defendants. Justice COATS delivered the Opinion of the Court.

Kirschenbaum & Kirschenbaum, P.C., a New York professional corporation, and Kenneth Kirschenbaum, petitioned for relief pursuant to C.A.R. 21 from the denial of their motion to dismiss a legal malpractice action in the Arapahoe County District Court for lack of personal jurisdiction. Over an eleven year period, Kirschenbaum represented Darlene Keefe, a Colorado resident, in a lawsuit in New York and in settling the New York judgment against her. This court issued its rule to show cause. Because Keefe, the plaintiff in the Colorado malpractice suit, alleged the purposeful creation by Kirschenbaum of continuing obligations between them that were sufficient to satisfy due process requirements for the exercise of specific jurisdiction by this state, the rule is discharged.

I.

This legal malpractice action arises out of the representation by Kenneth Kirschenbaum and his law firm of Darlene Keefe in a New York lawsuit. After settlement of the New York judgment against Keefe, she filed suit against Kirschenbaum in Colorado. Kirschenbaum responded to the allegations of Keefe's complaint by moving to dismiss for lack of personal jurisdiction. See C.R.C.P. 12(b)(2). The district court denied the motion, finding that Kirschenbaum engaged in business contacts with Colorado that resulted in sufficient consequences to Keefe to justify the exercise of long-arm jurisdiction.1

In her complaint Keefe alleged that she is a Colorado resident who retained Kirschenbaum in July 1988 to defend her in a lawsuit in New York in which National Union Fire Insurance Co. sought recovery of payments it had made as surety on a loan to her. The arrangements were made by Jerri Eckelberger, Keefe's Colorado attorney, who also requested that all communication between Kirschenbaum and Keefe be through her. After Keefe wired Kirschenbaum $1,000 for legal fees, he answered National Union's complaint in the New York County Supreme Court.

Shortly thereafter, Keefe, through Eckelberger, authorized Kirschenbaum to settle the suit by paying the outstanding amounts claimed by National Union. Kirschenbaum allegedly failed to relay Keefe's settlement offer to National Union or pursue settlement negotiations and took no action either to defend or settle the lawsuit for a period of more than four years. During those years, Kirschenbaum and Eckelberger maintained only minimal contact.

When National Union's counsel next contacted Kirschenbaum in 1993, Kirschenbaum tried unsuccessfully to communicate directly with Keefe. After his letter was returned undelivered, apparently because Eckelberger had given him the wrong address, Kirschenbaum informed Eckelberger that he would take no further action until he heard from either Eckelberger or Keefe. Eckelberger apparently took no action, and Ms. Keefe was therefore never informed that the lawsuit had once again become active.

Upon further requests by National Union to resolve the action in 1996, Kirschenbaum demanded through Eckelberger additional retainer funds, which Keefe paid. Kirschenbaum then acquired and forwarded a letter to Eckelberger from National Union's counsel setting forth the amount National Union claimed to be due and owing from Keefe, including the interest that had accrued over the prior eight years of his representation of Keefe. In September 1996, after National Union filed a motion for summary judgment, Kirschenbaum also sent a letter directly to Keefe concerning the summary judgment motion but again sent the letter to the wrong address. Receiving no direction from either Keefe or Eckelberger, Kirschenbaum did not respond in any way to the summary judgment motion, and the New York court entered judgment in favor of National Union. The judgment was subsequently domesticated in Colorado, and Keefe finally became aware of it in April 1998, when she received a Notice of Entry of Judgment from the Arapahoe District Court.

Upon receiving the notice of judgment in Colorado, Keefe requested that Kirschenbaum negotiate a settlement in New York. He agreed, provided that he receive payment for fees owed and anticipated. After Keefe wired Kirschenbaum an additional $3000, he negotiated the settlement with National Union's counsel in New York, obtaining approval from Keefe's husband for the final agreement.

After executing the stipulation of settlement, Keefe filed a malpractice action against Kirschenbaum and Eckelberger in the Arapahoe County District Court. Sometime before serving Kirschenbaum with the Complaint in this matter, Keefe settled her claims against Eckelberger. After the district court denied his motion to dismiss, Kirschenbaum petitioned this court for relief pursuant to C.A.R. 21.

II.

Exercise of the supreme court's original jurisdiction is entirely within its discretion. In re: People v. Lee, 18 P.3d 192, 195 (Colo.2001)

. Relief pursuant to C.A.R. 21 is appropriate where a district court is proceeding without or in excess of its jurisdiction, see White v. Dist. Court, 695 P.2d 1133, 1135 (Colo.1984), and no other remedy would be adequate. People v. Dist. Court, 664 P.2d 247, 251 (Colo.1983). In part because a challenge to the personal jurisdiction of the court over someone not present in the state raises the question whether it is unfair to force such a party to defend here at all, we have on previous occasions entertained challenges at this stage of the proceedings to the exercise of personal jurisdiction by district courts over out-of-state defendants. See, e.g., Scheuer v. Dist. Court, 684 P.2d 249 (Colo.1984); Fleet Leasing, Inc. v. Dist. Court, 649 P.2d 1074 (Colo.1982); Waterval v. Dist. Court, 620 P.2d 5 (Colo.1980); Dwyer v. District Court, 188 Colo. 41, 532 P.2d 725, (1975); Safari Outfitters v. Superior Court, 167 Colo. 456, 448 P.2d 783 (1969).

A.

With its adoption of Colorado's long-arm statute, § 13-1-124(1), 5 C.R.S. (2001), the General Assembly made clear its intent "to extend the personal jurisdiction of Colorado's courts to their maximum limits permissible under the United States and Colorado Constitutions." Scheuer, 684 P.2d at 250; Fleet Leasing, Inc., 649 P.2d at 1078; Dwyer, 188 Colo. at 44, 532 P.2d at 726; Safari Outfitters, 167 Colo. at 459, 448 P.2d at 784. With regard to the kinds of acts described by the statute, "[t]his interpretation obviates the need for statutory analysis separate from the due process inquiry required by International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and its progeny." C.F.H. Enter., Inc. v. Heatcool, 538 F.Supp. 774, 775 (D.Colo.1982); McAvoy v. Dist. Court, 757 P.2d 633, 634 n. 1 (Colo. 1988).

While states generally have a "manifest interest" in providing their residents with a convenient forum for redressing injuries inflicted by out-of-state actors and while physical presence is clearly not a prerequisite of personal jurisdiction, due process does require that individuals have a fair warning that a particular activity may subject them to the jurisdiction of a foreign sovereign. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-73, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Fair warning, or forseeability, in this context, however, is not merely the foreseeability of causing injury in another state. Id. at 474, 105 S.Ct. 2174. The foreseeability that is critical to the due process analysis necessarily requires that the defendant's "conduct and connection" with the forum state be such that he should reasonably anticipate being haled into court there. Id.; World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). Unilateral activity by those who claim some relationship with a nonresident defendant cannot in itself satisfy the requirement of contact with the forum state. Burger King Corp.,471 U.S. at 474,105 S.Ct. 2174. The constitutional touchstone remains whether the defendant purposefully established "minimum contacts" in the forum state. Id.; Int'l Shoe Co,326 U.S. at 316,66 S.Ct. 154; Scheuer, 684 P.2d at 251. It is essential that there be some act by which the defendant purposefully avails himself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); Int'l Shoe Co.,326 U.S. at 319,66 S.Ct. 154; Scheuer, 684 P.2d at 251.

For a nonresident to be subjected to the general jurisdiction of the forum state by his activities there, those activities must be continuous and systematic, of a general business nature, see Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)

; but for specific jurisdiction to adjudicate claims arising from an out-of-state defendant's contacts with the forum state, the fair warning requirement is satisfied as long as the litigation results from alleged injuries that "arise out of or relate to" activities that are significant and purposefully directed by the defendant at residents of the forum. Burger King, 471 U.S. at 472,

105 S.Ct. 2174. As long as the defendant has purposefully availed himself of the privilege of conducting activities within another state, both this court and the Supreme Court have consistently rejected the notion that an absence of physical contacts can defeat personal jurisdiction. Id. at 476, 105 S.Ct. 2174; Waterval, 620 P.2d at 8. It is an inescapable fact of modern commercial life that a substantial amount of...

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