L.T. Elsey & Son, Inc. v. American Engineering Fabrics, Inc.

• Decision Date: 03 September 1991
• Docket Number: Docket No. 126333
• Parties: L.T. ELSEY & SON, INC., Plaintiff-Appellant-Cross-Appellee, v. AMERICAN ENGINEERING FABRICS, INC., Defendant-Appellee-Cross-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 483

477 N.W.2d 483

191 Mich.App. 146

L.T. ELSEY & SON, INC., Plaintiff-Appellant-Cross-Appellee, v. AMERICAN ENGINEERING FABRICS, INC.,

Defendant-Appellee-Cross-Appellant.

Docket No. 126333.

Court of Appeals of Michigan.

Submitted March 12, 1991, at Detroit.

Decided Sept. 3, 1991, at 9:20 a.m.

Released for Publication Dec. 16, 1991.

Fitzgerald, Cox & Hodgman by Barry L. King, Troy, for plaintiff.

Garratt & Evans, P.C. by C. William Garratt and John G. Coutilish, Bloomfield Hills, for defendant.

Before BRENNAN, P.J., and MICHAEL J. KELLY and WALSH, ^* JJ.

MICHAEL J. KELLY, Judge.

Plaintiff-appellant contends that the lower court erred in granting defendant-cross-appellant's motion for summary disposition because, under the facts and circumstances of this case, it is clear that "the defendant's conduct and connection with the forum state are such that he [sic] should reasonably anticipate being haled into court there." We agree and reverse.

The test is that stated in Burger King Corp v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). The trial court simply failed to assess the unrebutted evidence supplied by affidavit that defendant had supplied goods to plaintiff on four prior occasions, three in 1988 and one in 1989, and had been informed by defendant's representative that defendant had conducted "previous business in Michigan with Environmental Protection Inc." During negotiations, Michigan Department of Transportation specifications were sent by plaintiff to defendant with instructions to report "any problems." When shipped, the material was certified by defendant as meeting those specifications and was shipped from defendant's place of business in Massachusetts through a common carrier to the destination specified by plaintiff for a highway project in Monroe County, Michigan. Some of the material was used in the highway construction and some of it, by order of defendant, was picked up by a common carrier at the construction site and returned to Massachusetts.

In the face of these facts, the trial judge stated:

This court does not believe it has jurisdiction over the defendant since the only contact with this state involves a single transaction.

Because it ignored the prior transactions and the certification relating to the MDOT specifications, the court necessarily decided defendant's motion in the light most favorable to defendant.

While it is true that the plaintiff has the burden of establishing jurisdictional facts, a motion for summary disposition based on lack of personal jurisdiction must be resolved on the evidential support submitted by both parties. MCR 2.116(C)(1) and (G)(5); Gooley v. Jefferson Beach Marina, Inc., 177 Mich.App. 26, 441 N.W.2d 21 (1989). Here, the court ignored the evidential support submitted by plaintiff. As a consequence, we have only defendant's assessment of its intentions with regard to its course of dealings with plaintiff and the contemplated future consequences thereof. We believe M.C.L. Sec. 600.715; M.S.A. Sec. 27A.715 has been facially satisfied, particularly under subsection 5, because defendant entered into a contract for materials to be furnished in this state. We also believe that defendant's conduct was a prime generating cause of the effects resulting in Michigan. Defendant's certification of the material as satisfying Michigan testing requirements was a deliberate action calculated to make its product available to the Michigan market. It is obvious that plaintiff would not have purchased the product had defendant not certified it as meeting MDOT requirements. Moreover, defendant must have contemplated being "haled" into a Michigan court in the event that the product failed the testing requirements. Defendant knew that the product was to be used in road construction in Michigan and that it needed to satisfy certain MDOT standards. Finally, this was not a singular transaction, but the last of five transactions with plaintiff.

In light of the disposition on the merits of the principal appeal, cross-appellant's claimed error is moot.

Reversed.

BRENNAN, P.J., concurred.

WALSH, Judge (dissenting).

I must respectfully dissent.

There are two issues relating to the question whether the State of Michigan can exercise limited jurisdiction over the defendant in this case. First, did defendant's acts create relationships with Michigan within the meaning of subsections 1, 3, and 5 of Michigan's long-arm statute? M.C.L. Sec. 600.715; M.S.A. Sec. 27A.715. This is an issue of statutory construction. Second, would exercise of jurisdiction over defendant be violative of...