Management Recruiters of Portland, Inc. v. Harold Moore & Associates, Inc.
| Decision Date | 22 June 1993 |
| Citation | 848 P.2d 644,118 Or.App. 614 |
| Court | Oregon Court of Appeals |
| Parties | MANAGEMENT RECRUITERS OF PORTLAND, INC., Appellant, v. HAROLD MOORE & ASSOCIATES, INC., Respondent. 9102-00830; CA A71223. |
R.P. Joe Smith, Portland, argued the cause for appellant. On the briefs were Kenneth B. Woodrich, Portland, and Michael Rode, Associate Counsel, Cleveland, OH.
Scott D. Truesdell, Portland, argued the cause for respondent. With him on the brief were Barbee B. Lyon and Tonkon, Torp, Galen, Marmaduke & Booth, Portland.
Before WARREN, P.J., and RIGGS and EDMONDS, JJ.
Plaintiff brought this action for breach of contract. The trial court granted defendant's motion to dismiss for lack of personal jurisdiction. ORCP 21 A(2). We affirm.
Plaintiff bears the burden of alleging and proving facts sufficient to establish personal jurisdiction. Showalter v. Edwards and Associates, Inc., 112 Or.App. 472, 476, 831 P.2d 58, rev. den., 314 Or. 391, 840 P.2d 709 (1992). Despite plaintiff's assertions to the contrary, in determining whether defendant is subject to the jurisdiction of an Oregon court, the trial court looks to the pleadings and the affidavits of both parties. ORCP 21 A provides, in part:
"If, on a motion to dismiss asserting [lack of personal jurisdiction] * * * the facts constituting such defenses do not appear on the face of the pleading and matters outside the pleading, including affidavits and other evidence, are presented to the court, all parties shall be given a reasonable opportunity to present evidence and affidavits, and the court may determine the existence or nonexistence of the facts supporting such defense * * *."
See Smith v. O'Byrne, 113 Or.App. 128, 831 P.2d 709, rev. den., 313 Or. 627, 835 P.2d 916 (1992). Here, the trial court had before it the pleadings and affidavits. We assume that the trial court found facts consistent with its judgment. See St. Paul Fire and Marine Ins. v. Valley Ins., 93 Or.App. 457, 459, 762 P.2d 1048 (1988).
Plaintiff is an executive recruiting service that refers candidates to employers and charges the employer a fee for each candidate who is hired. Plaintiff is located in Portland, Oregon, but does business nationwide. Defendant is a general contractor doing business only in Tennessee. Plaintiff's employee, Stanfill, telephoned defendant's president, Landers, seeking to place a job seeker, Raymer, in a vacant supervisory position. The parties' affidavits dispute the contents of the phone call. Stanfill claims that defendant agreed to pay a contingency fee if it hired Raymer. Defendant said that Landers told Stanfill that it never hired through agencies and did not want to interview Raymer. Landers refused a second phone call from Stanfill.
Within a few days of the first phone call, Stanfill mailed defendant a document entitled "Fee Policy Agreement," which included a statement that:
1
Approximately one week later, Raymer went to Landers' office. Landers told Raymer that defendant did not hire through agencies and would not consider him.
More than a week after Raymer's visit, Landers received a second offer in the mail. This offer was identical to the first, except that it did not include a forum selection clause. Landers returned the second offer to plaintiff with a letter stating that defendant would not pay any fees, that plaintiff's calls and Raymer's visit were unsolicited and unwelcome, and that plaintiff should not contact defendant. The letter also suggested that Raymer be placed with another firm.
Raymer contacted defendant 6 weeks later, said that he had no contractual relationship with plaintiff, and asked for a job. A week later defendant hired him. Plaintiff demanded the fee specified in the fee policy agreement but defendant refused to pay.
Plaintiff filed suit in Oregon. Defendant moved to dismiss on the ground that the court had no personal jurisdiction over it. The motion was accompanied by Landers' affidavits, his letter to plaintiff and a copy of the second written offer. Plaintiff responded and filed Stanfill's affidavit, a copy of an interview confirmation slip sent by plaintiff and the first and second offers.
Plaintiff argues that the court erred by not exercising personal jurisdiction over defendant pursuant to ORCP 4 A(5), ORCP 4 E(1), ORCP 4 E(2), and ORCP 4 L. ORCP 4 A(5) extends personal jurisdiction to any defendant who has expressly consented to appear before the court. Plaintiff alleges that defendant consented to appear in Oregon when it hired Raymer and became bound by the forum selection clause which appears in the first offer.
The parties dispute the existence of a contract, but the trial court made no findings about whether a contract was formed. Regardless of whether there was a contract, defendant could not have agreed to the forum selection clause in the first offer. Before defendant allegedly became bound to pay for plaintiff's services, the first offer was revoked by a second offer, which did not contain a forum selection clause. Although no Oregon cases discuss the situation, it is a basic principle of contract law that a new offer revokes a prior offer. See 1 Corbin, Contracts § 40 (1963); Restatement (Second) Contracts § 39(1), comment a at 106 (1979). If, as plaintiff alleges, defendant accepted its offer when it hired Raymer, the offer that it accepted did not include a forum selection clause. Therefore, defendant did not expressly consent to appear before an Oregon court and ORCP 4 A(5) does not apply.
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