Barile v. University of Virginia

• Citation: 441 N.E.2d 608,2 OBR 254,2 Ohio App.3d 233
• Parties: , 7 Ed. Law Rep. 369, 2 O.B.R. 254 BARILE, Appellant, v. UNIVERSITY OF VIRGINIA, Appellee.
• Decision Date: 27 August 1981
• Court: United States Court of Appeals (Ohio)

Page 233

2 Ohio App.3d 233

441 N.E.2d 608, 7 Ed. Law Rep. 369, 2 O.B.R. 254

BARILE, Appellant, v. UNIVERSITY OF VIRGINIA, Appellee.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Aug. 27, 1981.

Syllabus by the Court

Where the agents of an out-of-state university enter Ohio for the purpose of recruiting student-athletes into the athletic program of the university, that university may be held subject to the personal jurisdiction of the courts of Ohio, for causes of action related to the activities of its agents within the state of Ohio.

Mancino, Mancino & Mancino and Paul Mancino, Jr., Cleveland, for appellant.

Frank J. Soldat, Cleveland, for appellee.

JACKSON, Chief Judge.

This action for breach of contract was initiated by appellant, Carl Barile, in the Cuyahoga County Court of Common Pleas against the appellee, University of Virginia, the college he attended as an undergraduate. In the lower court, the appellee moved to dismiss appellant's complaint pursuant to Civ.R. 12(B)(2) on the ground that it was not subject to the personal jurisdiction of the Ohio courts. The trial court granted the motion to dismiss. Appellant appeals the decision of the trial court and assigns two errors for review.

For his first assignment of error, ¹ appellant contends that Ohio courts are entitled to exercise personal jurisdiction over appellee with respect to the issue at bar, and that the trial court erred in granting appellee's motion to dismiss.

Civ.R. 4.3(A) and R.C. 2307.382 authorize out-of-state service of process upon a non-resident defendant who transacts any business in Ohio when the cause of action asserted arises out of such transaction. R.C. 2307.382 provides, in part:

"(A) A court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a cause of action arising from the person's:

"(1) Transacting any business in this state;

" * * *

"(B) When jurisdiction over a person is based solely upon this section, only a cause of action arising from acts enumerated in this section may be asserted against him."

In ruling on a motion to dismiss for lack of jurisdiction over the person of the defendant, a trial court may, in an appropriate case, determine the jurisdictional issue from the pleadings and documentary evidence submitted by the parties in support and in opposition to the motion. Jurko v. Jobs Europe Agency (1975), 43 Ohio App.2d 79, 334 N.E.2d 478 .

While the mere allegations of the complaint, when contradicted by opposing affidavits, are not of sufficient evidentiary quality to sustain an assertion of in personam jurisdiction, Taylor v. Portland Paramount Corp. (C.A.9, 1967), 383 F.2d 634, 639, and Uston v. Grand Resorts, Inc. (C.A.9, 1977), 564 F.2d 1217, 1218, the factual allegations of the complaint, when uncontradicted by opposing affidavits, must be taken as true. Black v. Acme Markets, Inc. (C.A.5, 1977), 564 F.2d 681.

If the trial court determines the motion to dismiss without the benefit of an evidentiary hearing, the trial court must view the factual allegations of the pleadings and documentary evidence in a light most favorable to the non-moving party, and resolve all reasonable competing inferences in favor of such non-moving party. Jurko v. Jobs Europe Agency, supra. Cf. Woodworkers Tool Works v. Byrne (C.A.9, 1951), 191 F.2d 667, at 673. Where the operative facts asserted by a non-moving party demonstrate a prima facie showing of personal jurisdiction, the motion to dismiss should be overruled. ² Jurko v. Jobs Europe Agency, supra.

Construing the complaint and the affidavits ³ filed in support and in opposition to appellee's motion to dismiss in a light most favorable to appellant, the following undisputed facts have been ascertained:

Appellee, University of Virginia, a non-stock corporation, is a duly licensed and accredited university in Charlottesville, Virginia, and is a member of the Atlantic Coast Conference (ACC) of the National Collegiate Athletic Association (NCAA). Appellee has no offices, classrooms, phones, employees, or "resident representatives" in the state of Ohio. On April 8, 1971, while attending high school, appellant was approached at his East Cleveland, Ohio, residence by Mr. Peter R. Pucher, a member of appellee's athletic department. Mr. Pucher solicited appellant to play football for and to attend college at the University of Virginia, and urged appellant to apply for financial aid. Both appellant and his father, Jack R. Barile, signed an application for a scholarship at the University of Virginia.

On May 5, 1971, an agent of the appellee again visited the East Cleveland, Ohio, residence of the appellant to recruit him to play football at the University of Virginia.

The appellant agreed to play football for appellee, and expressed his assent by executing an Inter-Conference Letter of Intent. At some unspecified time and place, the appellee promised "that any injury that [appellant] would receive would be properly taken care of and that he would receive proper medical care and attention for any injuries that he might receive during the course of playing football or engaging in any athletic competition on behalf of the University of Virginia."

In 1973, appellant broke his wrist while playing football for appellee. Appellee's medical staff taped appellant's wrist, and thereafter, provided no medical attention or care for the injury. Appellant continued to play and participate in athletic events on behalf of appellee. In 1975, appellant's wrist was operated upon at the University of Virginia. Thereafter, appellant returned to his residence in East Cleveland.

After arriving in the Cleveland area, appellant was confined in the Cleveland Clinic, and had a second operation performed upon his wrist. Appellant's wrist remained in a cast for thirteen months, rendering him unable to work, and requiring him to receive welfare benefits. Appellant is now permanently disabled.

Appellant contends on appeal that the appellee transacted business in Ohio, within the meaning of R.C. 2307.382, and that by so doing appellee subjected itself to a constitutional assertion of the long-arm jurisdiction of the Ohio courts.

The phrase "transacting any business" from R.C. 2307.382, is a term of art. It was taken from the Illinois long-arm statute, which had been interpreted by the Supreme Court of that state as extending the personal jurisdiction of the Illinois courts to its constitutional limits. Nelson v. Miller (1957), 11 Ill.2d 378, 143 N.E.2d 673. The federal Court of Appeals for the Sixth Circuit has expressly held that:

"[W]e can conclude that the Ohio legislature intended to extend the jurisdiction of its courts to the Constitutional limits with respect to subsection (A)(1) [of R.C. 2307.382]." In-Flight Devices Corp. v. Van Dusen Air, Inc. (C.A.6, 1972), 466 F.2d 220, 224 .

The constitutional limits on the exercise of personal jurisdiction by a state court were described by the Ohio Supreme Court in the following passage:

"The requirements of the due-process clause can be stated simply: There must be sufficient service of process such as to be reasonably likely to communicate the fact of the commencement of an action to a nonresident; and, there must be some nexus between the forum for the action and the nonresident so as to make it fair and reasonable for the nonresident to appear in that forum and defend the action." Wainscott v. St. Louis-San Francisco Ry. Co. (1976), 47 Ohio St.2d 133, 137, 351 N.E.2d 466 .

The opinion of the court in Wainscott contains an exhaustive and scholarly review of the pertinent decisions of the United States Supreme Court from Lafayette Ins. Co. v. French (1855), 59 U.S. 404, 15 L.Ed. 451, to International Shoe Co. v. Washington (1945), 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95. The Ohio Supreme Court adopted the following standard for determining whether an Ohio court was entitled to exercise personal jurisdiction over a defendant:

"The sole issue is whether it is fair and reasonable for the appellant to appear and defend this action in the courts of Ohio." 47 Ohio St.2d at 137, 351 N.E.2d 466.

In International Shoe Co. v. Washington, supra, the United States Supreme Court clearly indicated that, under the Constitution, a foreign corporation which conducts activities within a state may thereby subject itself to the personal jurisdiction of the courts of that state:

"It is evident that the criteria by which we mark the boundary line between those activities which justify the subjection of a corporation to suit, and those which do not, cannot be simply mechanical or quantitative. * * *

"Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations. Cf. Pennoyer v. Neff, 95 U.S. 714 , supra; Minnesota Commercial Ass'n v. Benn, 261 U.S. 140 [43 S.Ct. 293, 67 L.Ed. 573].

"But to the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that state. The exercise of that privilege may give rise to obligations, and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue." 326 U.S. at 319, 66 S.Ct. at 160.

In McGee v. International Life Ins. Co. (1957), 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223, the Supreme Court held that a foreign corporation may become subject to the personal jurisdiction of the courts of a state on the basis of a single business transaction carried on within that...