Macpherson v. Taglione

• Decision Date: 31 May 1988
• Docket Number: CA-CV,No. 2,2
• Parties: Carl D. MACPHERSON, Plaintiff/Appellant, v. Paul TAGLIONE, Defendant/Appellee. 88-0046.
• Court: Arizona Court of Appeals

Page 596

762 P.2d 596

158 Ariz. 309

Carl D. MACPHERSON, Plaintiff/Appellant, v. Paul TAGLIONE, Defendant/Appellee.

No. 2 CA-CV 88-0046.

Court of Appeals of Arizona,

Division 2, Department A.

May 31, 1988.

Review Denied Oct. 25, 1988.

[158 Ariz. 310] Carl D. MacPherson, P.C. by Carl D. MacPherson, Tucson, pro se.

Molloy, Jones & Donahue, P.C. by D. Michael Mandig and George O. Krauja, Tucson, for defendant/appellee.

OPINION

HOWARD, Presiding Judge.

This is an appeal from the granting of a motion to dismiss for lack of personal jurisdiction. Appellant sued New England Rare Coin Galleries (New England Coin), a Massachusetts corporation, and Paul Taglione and Jane Doe Taglione, husband and wife, in the Pima County Superior Court for fraud and breach of contract in the sale to him of certain silver and gold coins. Appellant alleged that the "Certificates of Guarantee Grading and Authenticity" signed by Paul F. Taglione, as the chairman of the Numismatic Committee of New England Coin were false and misrepresented the true grade of the coins, which were in fact inferior to the grade stated in the certificates, and that New England Coin and the appellees refused to honor the guarantee contained in the certificate.

The Tagliones were served with process in Massachusetts and filed a motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2), Rules of Civil Procedure, 16 A.R.S. The affidavit and deposition of the appellant reveal the following. Appellant was a resident of Arizona. He first became acquainted with the name of New England Coin when in April or early May of 1984 he received a telephone call at his residence in Tucson from Ed Finacarrio, who described himself as an account executive for the company. At that time Finacarrio informed him that New England Coin was in the business of selling and purchasing rare coins and described Paul Taglione as president of the company and their top coin grader. Appellant informed Finacarrio that he had called at a bad time because he was just about to leave for a summer vacation in Michigan, but if Finacarrio wanted to contact him and talk to him to a greater extent he could call him at his son's summer cottage in Michigan.

Appellant was subsequently contacted by Finacarrio in Michigan in June 1984. Finacarrio told him that a Certificate of Guaranteed Grading and Authenticity was provided for all coins, and that this guarantee was signed by the chairman of the Numismatic Committee, Paul Taglione. While he was in Michigan, appellant agreed to purchase the coins, all of which were subsequently delivered to his residence in Tucson. However, two of the Certificates of Guaranteed Grading and Authenticity were sent to his son's address in Michigan. The third was sent with the coins to Tucson. In purchasing the coins, the appellant relied upon the Certificates of Guaranteed Grading and Authenticity, which were signed by Paul Taglione in his capacity as president and chairman of the Numismatic Committee of New England Coin Galleries.

The affidavit of Paul Taglione which was filed in this case is as follows:

"PAUL F. TAGLIONE, being first duly sworn upon his oath, deposes and says as follows:

1. I am a resident of the State of Massachusetts.

2. While it is true that, at the time of the coin sales which form the basis of Mr. MacPherson's (sic) suit I was an employee of National Rare Coin Galleries, I was not involved in any way in the sale of coins to Mr. MacPherson (sic), other than to sign, for the company, the Certificate of Guaranteed Grading and Authenticity used in connection with the sale of coins sold by National Rare Coin Galleries. ¹

3. I own no property located in the State of Arizona.

4. I am not a resident of the State of Arizona.

5. I do not conduct, nor have I ever conducted, business in the State of Arizona, whether in connection with the performance of my duties at National Rare Coin Galleries or otherwise.

6. I was married to Mary Kate Taglione after the date on which Carl D. MacPherson (sic) claims to have made the purchase of the coins which are the basis of his allegations in Pima County Superior Court Case No. 231290."

The trial court granted the motion to dismiss finding, inter alia, that Paul Taglione did not reside in Arizona and did not conduct any business in Arizona. It further concluded that his wife was not in any way liable for any obligations allegedly incurred by her husband.

Appellant contends that the trial court erred in granting the motion to dismiss as to Paul Taglione and we agree.

Since the Arizona Rules of Civil Procedure were adopted from the Federal Rules of Civil Procedure, Arizona courts should give great weight to the interpretation given to similar federal rules. Jenney v. Arizona Express, Inc., 89 Ariz. 343, 362 P.2d 664 (1961). Under the federal rules, the plaintiff has the burden of establishing the existence of personal jurisdiction and cannot "simply rest on the bare allegations of the complaint, but rather [is obliged] to come forward with facts, by affidavit or otherwise, supporting personal jurisdiction." Amba Marketing Systems, Inc. v. Jobar International Inc., 551 F.2d 784, 787 (9th Cir.1977). The plaintiff may meet his burden of proof on a Rule 12(b)(2) motion by a prima facie showing that jurisdiction was conferred by service under a long arm statute. O'Hare International Bank v. Hampton, 437...