Dreher v. Smithson

• Decision Date: 15 September 1999
• Citation: 162 Or. App. 645,986 P.2d 721
• Parties: In the Matter of George M. Naylor Jr. Revocable Insurance Trust. Angela R. DREHER, Ph.D., Appellant, v. James L. SMITHSON and Gerald B. O'Grady, III, Respondents.
• Court: Oregon Court of Appeals

986 P.2d 721

162 Or. App. 645

In the Matter of George M. Naylor Jr. Revocable Insurance Trust.

Angela R. DREHER, Ph.D., Appellant, v. James L. SMITHSON and Gerald B. O'Grady, III, Respondents.

(P 980764; CA A103922)

Court of Appeals of Oregon.

Argued and Submitted May 17, 1999.

Decided September 15, 1999.

Karen J. Buehler, Lake Oswego, argued the cause for appellant. With her on the briefs was Buehler & Buehler.

Philip Jones, Portland, argued the cause for respondents. With him on the brief were Peter J. Duffy and Duffy, Kekel, Jones & Bernard, LLP.

Before LANDAU, Presiding Judge, and LINDER and BREWER, Judges.

BREWER, J.

Plaintiff, a resident of Oregon, brought this action to remove defendants as trustees of a Massachusetts trust under which plaintiff is a beneficiary. ORS 128.135. Alternatively, plaintiff petitioned the court to provide instructions directing the trustees to administer their responsibilities in a manner consistent with plaintiff's wishes. ORS 128.145. Plaintiff appeals from the trial court's judgment dismissing her claims based on lack of personal jurisdiction over defendants. ORCP 21 A. We affirm.

In 1964, plaintiff's father, George Naylor (the grantor), created a trust for the benefit of his spouse and children, including plaintiff. The grantor was an attorney and a resident of Massachusetts. Defendants, the current trustees, are the grantor's former law partners and are also Massachusetts residents. The trust agreement provides that the trust is "created under * * * to be governed by and * * * to be construed and administered according to the laws of the Commonwealth of Massachusetts." Throughout its existence, the trust has been administered within the state of Massachusetts and none of the trust assets is located in Oregon. However, defendants knew that plaintiff resided in Oregon when they accepted their appointments.

The trust estate currently consists of twelve separate shares, with two shares being held by defendants for each of the grantor's six children, including plaintiff. The trust provides that the net income from plaintiff's share shall be distributed to her unless withheld in the trustees' discretion. The trustees are authorized to distribute principal to plaintiff for specified purposes. In carrying out their duties toward plaintiff, defendants' sole contacts with Oregon have consisted of correspondence and telephone calls to and from plaintiff and her advisors and trust distribution checks that defendants mailed to plaintiff in Oregon.

Since 1992, defendants have declined some of plaintiff's requests for distributions of principal from the trust. Ultimately, the friction resulting from those decisions led plaintiff to file this action in Clackamas County Circuit Court seeking, among other things, a judgment removing defendants as trustees of her share of the trust. In support of her petition, plaintiff relied on ORS 128.135,¹ Massachusetts law, and "general legal and equitable principles." The trial court granted defendants' motion to dismiss for lack of personal jurisdiction and this appeal ensued.

Plaintiff has the burden of alleging and proving facts sufficient to establish personal jurisdiction. Boyer v. Interstate Production Credit Assn., 127 Or.App. 182, 186, 872 P.2d 23 (1994). We construe pleadings and affidavits liberally to support jurisdiction. Id. Once the jurisdictional facts are established, we review the determination of personal jurisdiction for errors of law. Boehm & Co. v. Environmental Concepts, Inc., 125 Or.App. 249, 252, 865 P.2d 413 (1993). Plaintiff asserts that she established jurisdiction on several alternative grounds. We address each in turn.

Plaintiff first argues that jurisdiction exists under either ORCP 4 E(3) or ORCP 4 E(5), which provide that Oregon courts have jurisdiction over a party in an action that "[a]rises out of a promise, made anywhere to the plaintiff or to some third party for the plaintiff's benefit, by the defendant to deliver * * * within this state * * * things of value" or "[r]elates to * * * things of value actually received in this state by the plaintiff from the defendant * * * without regard to where delivery to carrier occurred." In applying ORCP 4 E(3) and (5), we first inquire whether those subdivisions apply to the facts of this case. Boehm, 125 Or.App. at 253,865 P.2d 413. If either does, we next inquire whether an exercise of jurisdiction over an out-of-state defendant comports with due process. Id; State ex rel. Circus Circus Reno, Inc. v. Pope, 317 Or. 151, 159, 854 P.2d 461 (1993). A two-part analysis is required because, unlike some of the other subsections of ORCP 4, ORCP 4 E is not patterned after prior decisions defining the constitutional limitations of personal jurisdiction. Boehm, 125 Or.App. at 252-53,865 P.2d 413.

Plaintiff argues that by accepting their appointments as trustees, defendants "reached out to create a continuing relationship with and obligation to a citizen of the State of Oregon," so as to confer jurisdiction under ORCP 4 E. Our analysis of plaintiff's contention follows the steps described in Pope and Boehm. We first ask whether either ORCP 4 E(3) or (5) applies to the jurisdictional facts in this case.

Defendant contends that neither subsection applies on its face, because an agreement to pay money in Oregon is not an agreement to deliver a "thing of value," as the term is used in ORCP 4 E(3) and (5). Defendants argue that their conduct consisted only of the payment of money and related communications and, therefore, that jurisdiction cannot lie under either subsection. Plaintiff responds that we upheld jurisdiction based on ORCP 4 E(3) in both Boyer and Boehm and that the results in each of those cases depended on the payment of money in Oregon.

In Boyer, the majority of the plaintiffs were Oregon beneficiaries of a multi-employer retirement plan and trust. Among the defendants were the nonresident plan administrator and trustees. Two Oregon employers were included in the trust funding group. The beneficiaries sought damages and equitable relief from the defendants, alleging that they failed to provide appropriate cost-of-living increases in distributing trust funds. As in this case, to support jurisdiction the plaintiffs relied on a promise made by the defendants to third parties for the delivery of money benefits to the plaintiffs within Oregon. We upheld jurisdiction over the administrator and trustees under ORCP 4 E(3):

"We conclude that, by accepting [the Oregon employers] as participating employers, the Plan promised to pay retirement benefits to people who retired from Oregon Credit Associations. That promise is a sufficient basis to assert personal jurisdiction over the Plan administrator and trustees in an action arising from an alleged breach of promises created or implied by the Plan document." 127 Or.App. at 187, 872 P.2d 23.

In Boehm, we held that ORCP 4 E(3) conferred jurisdiction over a foreign corporation that guaranteed a promissory note payable to an Oregon corporation. The defendant executed the guaranty in Florida and mailed it to the plaintiff in Oregon. In upholding jurisdiction, we concluded that the "payment and the guaranty were to be performed in Oregon" and that the plaintiff's reliance on the guaranty "caused substantial economic consequences in this state." 125 Or.App. at 253-54, 865 P.2d 413. Among those consequences were the surrender of stock in one corporation in exchange for promissory notes from another corporation.

Defendants' argument notwithstanding, Boehm and Boyer unquestionably treated the defendants' contractual obligations to pay or distribute money in Oregon as promises to deliver "things of value" within the meaning of ORCP 4 E(3). This case stands in a somewhat different factual posture from either Boehm or Boyer in that there is no evidence that defendants explicitly promised the grantor that they would deliver trust distributions within Oregon. However, such a commitment may be fairly inferred from defendants' knowledge that plaintiff resided in Oregon at the time each of them assumed his duties as trustee, including the obligations pertaining to distributions. Therefore, our decisions in those cases compel the conclusion that defendants' implied commitment to make trust distributions to plaintiff within Oregon brings this case, at least facially, within the scope of ORCP 4 E(3).²

Accordingly, we turn to the due process analysis. We first inquire whether the defendant has minimum contacts with Oregon, the forum state. If so, we next determine whether the exercise of jurisdiction is reasonable in light of considerations of "fair play and substantial justice." Pope, 317 Or. at 159, 854 P.2d 461 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). For the reasons that follow, our due process analysis in this case begins and ends with the first question.

Plaintiff asserts that defendants have sufficient Oregon contacts to satisfy the demands of due process, because they accepted their fiduciary responsibilities as successor trustees with knowledge that plaintiff lived in Oregon. We are not persuaded by plaintiff's argument. A defendant's knowledge that an Oregon resident is involved in a transaction is not, standing alone, sufficient to establish the contact necessary to impose jurisdiction. White v. Mac Air Corp., 147 Or.App. 714, 719, 938 P.2d 241, rev. den. 326 Or. 59, 944 P.2d 949 (1997). The minimum contacts that are a prerequisite to jurisdiction will be found only where the defendant has purposefully directed its activities at residents of the forum state. Sutherland v. Brennan, 321 Or. 520, 529-30, 901 P.2d 240 (1995). In that respect, the cases plaintiff relies on are materially distinguishable from the facts of this case.

Our conclusion in Boyer, for example, rested directly on the fact that the defendants purposefully placed themselves in a fiduciary capacity...