Sales Consultants v. Buehler Lumber Co.

• Decision Date: 20 April 1992
• Docket Number: No. 62613,62613
• Parties: SALES CONSULTANTS, Appellant, v. BUEHLER LUMBER COMPANY, Appellee. *
• Court: Ohio Court of Appeals

Page 289

79 Ohio App.3d 289

607 N.E.2d 94

SALES CONSULTANTS, Appellant, v. BUEHLER LUMBER COMPANY, Appellee. ^*

No. 62613.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided April 20, 1992.

Morris Levin, Cleveland, for appellant.

Steven M. Bales, Cleveland, for appellee.

PER CURIAM.

This is an accelerated appeal brought pursuant to App.R. 11.1 and Loc.R. 25 of the Cuyahoga County Court of Appeals. The plaintiff-appellant, Sales Consultants, appeals from the judgment of the Cuyahoga County Court of Common Pleas which granted the defendant-appellee's motion to dismiss for lack of in personam jurisdiction.

The appellant's appeal is not well taken.

On June 5, 1989, the appellant filed a complaint in the Cuyahoga County Court of Common Pleas which alleged that the appellee had breached an employee recruitment contract. The following facts formed the basis of the appellant's complaint: (1) the appellant was an executive management recruiter who provided information to potential employers of possible employees; (2) the appellant was an Ohio corporation; (3) the appellee was a Pennsylvania corporation which specialized in the milling, cutting and preparation of lumber; (4) the appellee was in need of an employee who was a "dimension" specialist; (5) the appellee placed an advertisement in a trade publication which sought a "dimension" specialist; (6) the appellant contacted the appellee with regard to a potential candidate, Ed Ewald, for the position of "dimension" specialist; (7) several conversations by telephone occurred between the appellant and the appellee with regard to the employment of Ed Ewald as a "dimension" specialist; (8) Ed Ewald, the potential employee, submitted his own resume and application to the appellee; (9) the appellee did hire Ed Ewald as a "dimension" specialist; and (10) the appellee refused to pay to the appellant the sum of $13,500 which was allegedly due as a result of the employment of Ed Ewald.

On May 16, 1991, the appellee filed a motion to dismiss the appellant's complaint for lack of personal jurisdiction pursuant to Civ.R. 12(B)(2). On July 1, 1991, the appellant filed a brief in opposition to the appellee's motion to dismiss. On September 23, 1991, the trial court granted the appellee's motion to dismiss for lack of personal jurisdiction.

Thereafter, the appellant timely filed the instant appeal.

The appellant's sole assignment of error is that:

"The trial court committed reversible error in granting defendant's motion to dismiss for lack of personal jurisdiction."

The appellant, through its sole assignment of error, argues that the trial court erred in granting the appellee's motion to dismiss as based upon a lack of in personam jurisdiction. The appellant specifically argues that the appellee transacted business in the state of Ohio, which established "minimum contacts" and thus allowed the trial court to obtain in personam jurisdiction over the appellee.

The appellant's sole assignment of error is not well taken.

R.C. 2307.382, which defines a trial court's ability to exercise in personam jurisdiction, provides in pertinent part that:

"(A) A court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a cause of action arising from the person's:

"(1) Transacting any business in this state[.] * * *"

In addition, the Supreme Court of Ohio has examined the issue of in personam jurisdiction vis-a-vis R.C. 2307.382 and has held that:

"It is well-established that ' * * * due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice." ' International Shoe Co. v. Washington (1945), 326 U.S. 310, 316 [66 S.Ct. 154, 158, 90 L.Ed. 95, 101]. Ordinarily, this requires that a party 'purposefully * * * [avail] itself of the privilege of conducting activities within the forum State * * *.' Hanson v. Denckla (1958), 357 U.S. 235, 253 [78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283, 1297]. In judging minimum contacts, a court properly focuses on 'the relationship among the defendant, the forum and the litigation * * *.' Shaffer v. Heitner (1977), 433 U.S. 186, 204 [97 S.Ct. 2569, 2579, 53 L.Ed.2d 683, 697].

"Courts have consistently held that foreseeability is one of the primary factors to be considered in determining whether there are sufficient minimum contacts. ' * * * [T]he foreseeability that is critical to due process analysis * * * is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.' World-Wide Volkswagen Corp. v. Woodson (1980), 444 U.S. 286, 297 [100 S.Ct. 559, 567, 62 L.Ed.2d 490, 499]. Thus, where the defendant 'has created "continuing obligations" between himself and residents of the forum, Travelers Health Assn. v. Virginia [1950], 339 U.S. at 648 [70 S.Ct. 927, 930, 94 L.Ed. 1154, 1161], * * * he manifestly has availed himself of the privilege of conducting business there, and because his activities are shielded by "the benefits and protection" of the forum's laws, it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well. Jurisdiction in these circumstances may not be avoided merely because the defendant did not physically enter the forum State.' (Emphasis sic.) Burger King Corp. v. Rudzewicz (1985), 471 U.S. 462, 475-476 [105 S.Ct. 2174, 2183-2184, 85 L.Ed.2d 528, 542-543]." (Emphasis added.) Anilas, Inc v. Kern (1987), 31 Ohio St.3d 163, 164, 31 OBR 366, 367, 509 N.E.2d 1267, 1268.

Finally, this court in Erie Shore Indus., Inc. v. Cumberland Steel, Inc. (June 7, 1990), Cuyahoga App. No. 57053,...