Crescent Corp. v. Martin

• Decision Date: 18 June 1968
• Docket Number: No. 42894,42894
• Parties: CRESCENT CORPORATION, a foreign corporation, Petitioner, v. The Honorable Robert F. MARTIN, Jr., Judge of the Court of Common Pleas of Tulsa County, and W. H. Garbade, Respondents.
• Court: Oklahoma Supreme Court

Page 111

443 P.2d 111

1968 OK 95

CRESCENT CORPORATION, a foreign corporation, Petitioner, v. The Honorable Robert F. MARTIN, Jr., Judge of the Court of Common Pleas of Tulsa County, and W. H. Garbade Respondents.

No. 42894.

Supreme Court of Oklahoma.

June 18, 1968.

Syllabus by the Court

1. When jurisdiction in personam of a foreign corporation is asserted under 12 O.S.Supp.1967 § 187, it must at least appear from the record that said defendant has (either within or without the State of Oklahoma) voluntarily committed some act by which said defendant has purposefully availed itself of the privilege of conducting activities (either singular or plural) within the State and has thus invoked the benefits and protections of the laws of Oklahoma and it must also appear from the record that plaintiff's cause of action arises out of or is based upon the same acts of defendant alleged to confer jurisdiction in personam of said defendant under the cited statute.

2. The entrance into a written contract of employment between a foreign corporation not licensed by, nor doing business within, the State of Oklahoma, and a resident of the State of Oklahoma by which the latter is employed to do 'consulting' work for the employer consisting of employee's attendance at not more than two meetings per annum of the corporation's Board of Directors does not, without more, constitute 'the transaction of any business within this State,' nor 'the commission of any act within this State' as such terms are used in 12 O.S.Supp.1967 § 187, so as to authorize jurisdiction of said foreign corporation in the courts of this state to render a judgment in personam against said corporation.

Application to assume original jurisdiction and to grant a Writ of Prohibition prohibiting further proceedings in a certain action pending in the Court of Common Pleas of Tulsa County, of which court Robert F. Martin, Jr., is one of the Judges.

Respondent Judge directed to sustain petitioner's plea to the jurisdiction.

Houston, Klein & Davidson, by L. Michael Hager, Tulsa, for petitioner.

Ungerman, Gravel, Ungerman & Leiter, Tulsa, for respondents.

LAVENDER, Justice.

This original action, by the petitioner who is the defendant in a pending case in respondent's court, was brought to obtain a writ of prohibition against the respondent from proceeding to hear the case in his court. The grounds of the complaint here are that respondent is without jurisdiction of the person of petitioner, a foreign corporation not licensed nor doing business within Oklahoma. Jurisdiction is asserted for respondent under Title 12 O.S.Supp.1967 § 187 and 12 O.S.Supp.1967 § 1701.03. The cited statutes are somewhat similar. The pertinent parts of the statutes are as follows:

'12 O.S.Supp.1967 § 187. In personam jurisdiction over certain nonresidents--Service of process--Venue.--(a) Any person, firm, or corporation other than a foreign insurer licensed to do business in the State of Oklahoma whether or not such party is a citizen or resident of this State and who does, or who has done, any of the acts hereinafter enumerated, whether in person or through another, submits himself, or shall have submitted himself, and if an individual his personal representative, to the jurisdiction of the courts of this State as to any cause of action arising, or which shall have arisen, from the doings of any of said acts:

(1) the transaction of any business within this State;

(2) the commission of any act within this State; * * *.'

and

'12 O.S.Supp.1967 § 1701.03. Bases of jurisdiction--(a) A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action or claim for relief arising from the person's:

(1) transacting any business in this state;

(2) contracting to supply services or things in this state;

* * *.'

We are of the view that actions of a nonresident under the last statute (assuming the same applicable to nonresident defendants) would be covered by the provisions of the first statute referred to (12 O.S.Supp.1967 § 187). We shall consider only the question of jurisdiction as affected by the provisions of 12 O.S.Supp.1967 § 187.

After the defendant's special plea to the jurisdiction of the trial court and its motion to quash the summons was denied by respondent, the defendant filed this action for extraordinary relief. Defendant's argument for our assuming original jurisdiction is that it does not come within the provisions of 12 O.S.Supp.1967 § 187--that is, that it has neither been 'transacting any business' nor 'committing any acts' within this state, out of which plaintiff's cause of action is alleged to have arisen.

If defendant is correct, then there exists good reason for this court to assume original jurisdiction to prevent unnecessary litigation and the expense attendant to it which would be the result if the respondent court indeed does not have jurisdiction in personam of said defendant. We are unimpressed with the respondents' counter argument that defendant's remedy of appeal available here at the conclusion of the case represents an adequate remedy. See Kenitex Corporation v. Coryell (1960), Okl., 352 P.2d 894, and Hayes Freight Lines v. Cheatham (1954), Okl., 277 P.2d 664, 48 A.L.R.2d 1278.

We are of the view that if, from an examination of the plaintiff's petition together with the affidavits of both parties and other matters of record, it can be said that the 'facts' alleged (as opposed to 'conclusions') to constitute the 'transaction of any business' or the 'commission of any act' are not in substantial dispute and are readily ascertainable from the record by this court, there exists no reason for delaying to the conclusion of the trial in the court below the determination of the question of that court's jurisdiction to proceed.

We have carefully reviewed the 'facts' which are said to be insufficient to support the jurisdiction of the trial court. We find the following to be substantially established or at least undisputed:

1) The plaintiff in the court below (W. H. Garbade, who is also a respondent here) is now and has been for many years a resident of Oklahoma;

2) That several years ago the plaintiff was first employed by defendant and has continued to be employed by it during all times therein;

3) That during all this period of employment plaintiff continued to reside and make his home in Oklahoma;

4) That prior to March 9, 1964, the defendant was engaged in transacting business in Oklahoma;

5) That on March 9, 1964, plaintiff and defendant entered into the written contract involved in this action 6) That by the terms of said contract plaintiff was employed as a 'consultant'; that his duties were limited to 'attendance' and 'reporting' at not more than two meetings of the Board of Directors of defendant company each year. That in consideration of said promise by plaintiff, plaintiff was to receive an annual stipend payable by the month and that this contract expressly abrogated all prior contracts of employment.

7) That plaintiff was never called upon by the defendant to perform any act called for by the contract after the signing of it on March 9, 1964;

8) That defendant's only other 'contact' or 'relationship' with Oklahoma other than as evidenced by the above was that during 1966 and 1967 defendant kept various amounts of money on deposit in savings and loan associations within Oklahoma and that the defendant received interest on such monies. These deposits of money are admittedly not in any way involved with plaintiff's cause of action which is based on an alleged failure of the defendant to pay the money to plaintiff required by the terms of the contract.

Condensed, the question for determination by us may be stated thusly:

'Does simply the employment by a foreign corporation of a resident of Oklahoma, as evidenced by a written contract of employment, amount to sufficient 'minimal contacts' with Oklahoma so that the courts of said state are vested with jurisdiction in personam of said foreign corporation?'

Before considering the law applicable and in our opinion controlling of the question, we should also point out that there was no showing as to where the contract was entered into; it was not shown whether the laws of Oklahoma, or the laws of some other state, are to be considered in enforcing the contract and neither does the contract require that Mr. Garbade do any act for or on behalf of said defendant within this state. We notice that the only requirement made of Mr. Garbade by the provisions of the contract is that after notice by defendant, he (the plaintiff) may be required to attend not more than two meetings of the defendant's Board of Directors per year. Although it does not appear where the Board will meet, it is admitted that the defendant is a Delaware Corporation with its principal offices in New York.

Because the above factors are not present here, we do not wish to be considered as holding that if they, or any one of said factors, were present our decision would necessarily be otherwise, however, the question of sufficiency of the contacts with the forum state by a foreign corporation or nonresident defendant so as to satisfy the requirements of both our long-arm statute--'the transacting of any business' within Oklahoma, or 'the commission of an act' within Oklahoma, and the constitutional requirement that a finding of jurisdiction based thereon 'does not offend 'traditional notions of fair play and substantial justice" (International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057.) is not intended to be answered by reference solely to whether the contract (such as we have before us) was executed in Oklahoma or was subject to the substantive laws of Oklahoma. (We can conceive of a situation, for example, where the contract could have been executed outside Oklahoma but either expressly or by implication require such...