Ron Tonkin Gran Turismo v. Carruth

• Decision Date: 21 November 1984
• Citation: 71 Or.App. 81,691 P.2d 127
• Parties: RON TONKIN GRAN TURISMO, an Oregon corporation, Respondent, v. Frank CARRUTH, Appellant, Convoy Company, an Oregon corporation, Defendant. 8209-05970; CA A 30130.
• Court: Oregon Court of Appeals

Page 127

691 P.2d 127

71 Or.App. 81

RON TONKIN GRAN TURISMO, an Oregon corporation, Respondent, v. Frank CARRUTH, Appellant Convoy Company, an Oregon corporation, Defendant.

8209-05970; CA A 30130.

Court of Appeals of Oregon.

Argued and Submitted June 25, 1984.

Decided Nov. 21, 1984.

John M. Volkman, Portland, argued the cause and filed the brief for appellant.

E. Sean Donahue, Portland, argued the cause for respondent. With him on the brief were Black, Tremaine, Higgins, Lankton & Krieger, Portland.

Before RICHARDSON, P.J., and WARDEN and NEWMAN, JJ.

WARDEN, Judge.

Defendant Carruth appeals from a judgment in favor of plaintiff entered on plaintiff's motion for summary judgment. ¹ The sole assignment of error is the trial court's denial of defendant's motion to dismiss for lack of personal jurisdiction. We affirm.

This action began with a complaint claiming fraud filed by plaintiff, an Oregon corporation, against Carruth, a Louisiana resident, and Convoy Company, an Oregon corporation. The complaint alleges that Carruth sells exotic automobiles and that plaintiff contacted him in response to advertisements for the sale of two Ferrari automobiles appearing in the Los Angeles Times, a newspaper of national circulation, and in Autoweek, a magazine used by automotive dealers to solicit offers nationwide. It further alleges that Carruth agreed to sell and plaintiff agreed to purchase for $55,000 a Ferrari automobile, that Carruth represented that the Ferrari was new and in good condition, that plaintiff wired the purchase price to Carruth in Louisiana, that plaintiff contracted with Convoy Company, a common carrier, to transport the Ferrari, that the Ferrari delivered to plaintiff was not new but was damaged and had significant mileage, that Carruth at the time of the sale knew that the Ferrari was not as represented and that plaintiff demanded rescission of the agreement and that Carruth refused to comply.

Carruth moved to dismiss the complaint on the ground that the trial court lacked personal jurisdiction over him. ORCP 21A(2). His accompanying affidavit states, in relevant part, that he is not engaged regularly in the business of selling exotic automobiles, but he maintains a dealer's license and deals in automobiles as a hobby. It further states that he received the offer for purchase from plaintiff at a personal residence maintained by him in Houston, Texas, that the Ferrari was delivered to his agents in California, the point where he received it from abroad, that he has no property, offices, businesses or employes in Oregon and that he personally has never been to the state of Oregon. Plaintiff's response to the motion included an affidavit by its president, Ronald Tonkin. That affidavit states, inter alia, that at the time of negotiations for the purchase of the Ferrari, Tonkin advised Carruth that plaintiff intended to sell the vehicle from its Portland place of business and that Carruth agreed to and did ship the documents of title for the Ferrari to plaintiff in Portland.

Oregon's statutory provisions for personal jurisdiction are found in ORCP 4. Subsections B through K enumerate specific bases for exercising "long-arm" jurisdiction over an out-of-state defendant. Subsection L is a catchall provision "extending Oregon jurisdiction to the outer limits of due process under the Fourteenth Amendment of the United States Constitution." State ex rel. Hydraulic Servocontrols v. Dale, 294 Or. 381, 384, 657 P.2d 211 (1982). It provides for jurisdiction

"[n]otwithstanding a failure to satisfy the requirement of sections B. through K. of this rule, in any action where prosecution of the action against a defendant in this state is not inconsistent with the Constitution of this state or the Constitution of the United States."

In resolving a question of jurisdiction, we first consider whether any of the specific provisions of subsections B through K apply. State ex rel. Michelin v. Wells, 294 Or. 296, 299, 657 P.2d 207 (1982). Only in the absence of a specific provision do we examine general due process considerations under subsection L. State ex rel. Hydraulic Servocontrols v. Dale, supra, 294 Or. at 385, 657 P.2d 211; see also State ex rel. Jones v. Crookham, 296 Or. 735, 738, 681 P.2d 103 (1984); but cf. State ex rel. Sweere v. Crookham, 289 Or. 3, 11-12, 609 P.2d 361 (1980) (ORCP 4E(1) cannot be constitutionally applied where a defendant's only contact with Oregon was execution of guarantee). State ex rel. Hydraulic Servocontrols v. Dale, supra, 294 Or. at 384-85, 657 P.2d 211, explains the rationale underlying that analysis:

"Subsections B through K of Rule 4 may appear to be redundant in view of the subsection L catchall provision, but they are not superfluous. Based as they are on facts which the United States Supreme Court has held to be adequate bases for jurisdiction, these more specific provisions serve to narrow the inquiry so that if a case falls within one of them, there is no need to litigate more involved issues of due process. Once a plaintiff alleges facts bringing his or her case within a specific provision, that ordinarily will be the end of the matter. On the other hand, if resort to ORCP 4L is necessary, then the limits of due process must be explored." (Footnote omitted.)

Defendant contends that the specific provisions of ORCP 4 are inapplicable to this action and, further, that he neither "purposefully avail[ed] [himself] of the privilege of conducting activities" in Oregon nor were there sufficient "minimum contacts" between him and Oregon to satisfy a constitutional inquiry under ORCP 4L. See World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980); Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); International Shoe v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); see also State ex rel. Michelin v. Wells, supra, 294 Or. at 300-03, 657 P.2d 207. Plaintiff, on the other hand, argues that the criteria of ORCP 4D(1), 4D(2), 4E(3), 4E...