Kiefer v. May

• Decision Date: 25 April 1973
• Docket Number: Docket No. 14025,No. 2,2
• Citation: 46 Mich.App. 566,208 N.W.2d 539
• Parties: Gerald KIEFER, Plaintiff-Appellant, v. Roger MAY, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 539

208 N.W.2d 539

46 Mich.App. 566

Gerald KIEFER, Plaintiff-Appellant, v. Roger MAY, Defendant-Appellee.

Docket No. 14025.

Court of Appeals of Michigan, Division No. 2.

April 25, 1973.

Released for Publication June 27, 1973.

Gerald R. Gase, O'Brien, O'Brien, Bolle, Gase & Gilleran, Royal Oak, for plaintiff-appellant.

Powell, Peres, Carr & Jacques, Pontiac, for defendant-appellee.

Before BRONSON, P.J., and FITZGERALD and O'HARA, ^* JJ.

FITZGERALD, Judge.

The nature of the summary proceedings in the trial court requires that pertinent facts be extrapolated from the pleadings and plaintiff-appellant's brief. Defendant-appellee did not file a brief.

Plaintiff is a resident of Michigan and defendant resides in Arizona. Defendant placed an advertisment in a national publication, Hemming Motor News, May, 1970 edition, circulated in Michigan. The advertisement was for the sale of a 1931 Cadillac. Plaintiff responded by calling defendant in Arizona. By telephone, defendant represented that the automobile was almost entirely complete. Relying on this information, the plaintiff agreed to purchase the car. After this agreement was reached, the plaintiff sent approximately $2,300 to defendant by wire and mail, the balance to be paid to defendant upon delivery of the automobile. Plaintiff sent a truck to Arizona to pick up the vehicle. When the automobile arrived in Michigan, plaintiff discovered upon inspection that the vehicle was not as it was represented to be, specifically in missing many parts, and filed suit. Defendant was personally served and appeared in Michigan through counsel. Defendant's counsel brought a motion for accelerated judgment. ¹ On February 23, 1972, the trial court granted the motion, stating that the court lacked jurisdiction over the nonresident defendant.

Plaintiff contends on appeal that Michigan's long arm statute did give the court limited personal jurisdiction over defendant.

Plaintiff further alleges that defendant had a scheme whereby he intended to defraud plaintiff. This scheme was initiated by sending an advertisement into Michigan. The purpose of the ad was to solicit a response from plaintiff. Misrepresentations were made by defendant and delivered to Michigan by telephone. Further, the reliance which induced plaintiff to part with his money and make the contract also took place in this state. Plaintiff alleges that M.C.L.A. § 600.705(1), (2); M.S.A. § 27A.705(1), (2), Infra, is therefore applicable.

We are being asked to determine whether or not Michigan's long-arm statute gave the trial court limited personal jurisdiction over the defendant nonresident. The statute reads:

'The existence of any of the following relationships between an individual or his 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 individual and to enable such courts to render personal judgments against such individual or his representative 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 rendered or for materials to be furnished in the state by the defendant.

'(6) Acting as a director, manager, trustee, or other officer of any corporation incorporated under the laws of, or having its principal place of business within, the state of Michigan.'

In Sifers v. Horen, 22 Mich.App. 351, 177 N.W.2d 189 (1970), negotiations took place in Michigan between defendant, an out-of-state lawyer, and a Michigan attorney who represented the plaintiff. This resulted in the retaining of defendant attorney to represent plaintiff in the courts of a sister state. Subsequently, defendant attorney did not provide services as previously agreed. A suit was instituted. This Court held that Michigan courts acquired limited personal jurisdiction under the statute's phrase, 'the transaction of any business within the state', quoting from Black's Law Dictionary (4th ed), p. 1668, in defining 'transacting business' (p. 356):

"doing or performing series of acts occupying time, attention, and labor of men for purpose of livelihood, profit or pleasure.' Also, see Westor Theatres v. Warner Bros. Pictures, Inc. (D.N.J. 1941), 41 F.Supp. 757; Crawford Transport Company v. Chrysler Corporation (E.D.Ky., 1961), 191 F.Supp. 223; and Wing v. Challenge Machinery Company (S.D.Ill., 1959), 23 F.R.D. 669.'

The Michigan Supreme Court affirmed in Sifers v. Horen, 385 Mich. 195, 188 N.W.2d 623 (1971). Therein, the Supreme Court construed the long-arm statute very broadly (pp. 198--199, 188 N.W.2d 623):

'The statute uses the phrase 'The transaction of Any business within the state.' (Emphasis added.) When we keep in mind that we are dealing not with General jurisdiction which is provided for in another part of the statute (M.C.L.A. § 600.701 (Stat.Ann.1962 Rev. § 27A.701)) which would expose a nonresident to suit in Michigan for any cause wherever it arose, but rather with Limited jurisdiction which exposes a nonresident to suit in Michigan only for a cause which arose out of the relationship serving as a basis for such jurisdiction we see no Federal Constitutional question.

'The courts of those states having 'long-arm' statutes similar to that of Michigan which confer, specifically, limited personal jurisdiction over defendants based on 'the transaction of any business within the state,' have generally construed their statutes as extending the state's jurisdiction to the farthest limits permitted by due process.

'the phrase 'transaction of any business' is construed as broader than 'doing business'. New York: Simonson v. International Bank (1964), 14 N.Y.2d 281, 251 N.Y.S.2d 433, 200 N.E.2d 427; Illinois: Lurie v. Rupe (1964), 51 Ill.App.2d 164, 201 N.E.2d 158, cert. denied Rupe v. Wallace, 380 U.S. 964, 85 S.Ct. 1108, 14 L.Ed.2d 154; Haas v. Fancher Furniture Company (D.C.Ill., 1957), 156 F.Supp. 564.'

In footnote 2, the Supreme Court noted:

'The word 'any' means just what it says. It includes 'each' and 'every'. See Harrington v. Inter-State Business Men's Accident Ass'n (1920), 210 Mich. 327, 178 N.W. 19; Gibson v. Agricultural Life Ins. Co. of America (1937), 282 Mich. 282, 276 N.W. 450. It comprehends 'the slightest'.'

Thus, the Supreme Court interpreted M.C.L.A. § 600.705; M.S.A. § 27A.705 to its full potential.

The only real limitation placed on this statute is the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution. Due process requires that a defendant have certain minimal contacts with the state so that the suit does not offend the traditional notions of fair play. International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). In Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283, 1298 (1958), the United States Supreme Court provided additional guidelines for the determination of whether or not minimum contacts have been met as required by due process, stating:

'The application of that rule will vary with the quality and nature of the defendant's...