Simmons v. Budde

• Decision Date: 17 September 2015
• Docket Number: No. 14AP–846.,14AP–846.
• Citation: 38 N.E.3d 960
• Parties: Susan E. SIMMONS, Plaintiff–Appellant, v. Hannah E. BUDDE, Defendant–Appellee.
• Court: Ohio Court of Appeals

38 N.E.3d 960

Susan E. SIMMONS, Plaintiff–Appellant
v.
Hannah E. BUDDE, Defendant–Appellee.

No. 14AP–846.

Court of Appeals of Ohio, Tenth District, Franklin County.

Sept. 17, 2015.

38 N.E.3d 962

Law Offices of Stanley B. Dritz, Stanley B. Dritz, Columbus, and D. Chadd McKitrick, for appellant.

Mazanec, Raskin & Ryder Co., L.P.A., David K. Frank, and Douglas C. Boatright, Columbus, for appellee.

Opinion

SADLER, J.

{¶ 1} Plaintiff-appellant, Susan E. Simmons, appeals the September 23, 2014 decision and entry of the Franklin County Court of Common Pleas granting the motion to dismiss filed by defendant-appellee, Hannah E. Budde, for lack of personal jurisdiction under Civ.R. 12(B)(2). For the following reasons, we affirm the judgment of the trial court.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} On October 9, 2008, Simmons, an Ohio resident, and her daughter, Budde, were involved in a car accident in Missouri, during which Simmons was the passenger of a car driven by Budde. The car, owned by Budde's father, an Ohio resident, was registered and insured in Ohio. Because she had already reserved her return flight for later that day, Simmons returned to Ohio and alleges that she underwent medical treatment in Franklin County for injuries related to the car accident.

{¶ 3} At the time of the accident, Budde temporarily resided in Missouri on a two-year “Teach for America” assignment while, according to Simmons, still retaining her Ohio voter registration and her previous residence at Simmons' home. Budde moved to Connecticut in June 2010. While a resident of Connecticut, Budde returned to Ohio for her July 2013 wedding and preparation activities. Simmons asserts that Budde continues to frequently return to Ohio for holidays and visits with friends and family.

{¶ 4} On October 8, 2013, Simmons filed a complaint alleging negligence on the part of Budde, which caused Simmons' bodily injury and resultant medical expenses, property expenses, lost wages, pain and suffering, and loss of enjoyment of life. On November 11, 2013, Budde filed a motion to dismiss under Civ.R. 12(B)(1) and (2) for lack of subject-matter jurisdiction and personal jurisdiction. On December 6, 2013, Simmons filed a memorandum contra with an attached notarized affidavit. Budde filed a reply a few weeks later.

{¶ 5} On September 23, 2014, the trial court granted Budde's motion to dismiss under Civ.R. 12(B)(2) for lack of personal jurisdiction. The trial court reasoned, “[b]ecause the cause of action set forth in the plaintiff's complaint arises from the nonresident defendant's operation of a motor vehicle in the state of Missouri, and the plaintiff's injury did not occur in Ohio, even when viewing the facts in a light most favorable to the plaintiff, this Court cannot exercise personal jurisdiction over the nonresident defendant.” (Sept. 23, 2014 Decision and Entry, 3.) Having determined it lacked personal jurisdiction, the trial court did not address subject-matter jurisdiction and dismissed the complaint without prejudice.

II. ASSIGNMENTS OF ERROR

{¶ 6} Appellant presents two assignments of error for our review:

[I.] THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION TO DISMISS AS THE TRIAL COURT HAS PERSONAL JURISDICTION OVER THE APPELLEE.

38 N.E.3d 963

[II.] THE TRIAL COURT ERRED BY DISMISSING THE APPELLANT'S COMPLAINT WITHOUT HOLDING AN EVIDENTIARY HEARING ON THE MATTER.

III. DISCUSSION

A. Standard of Review

{¶ 7} “Personal jurisdiction is a question of law that appellate courts review de novo.” Kauffman Racing Equip., L.L.C. v. Roberts, 126 Ohio St.3d 81, 2010-Ohio-2551, 930 N.E.2d 784, ¶ 27. Upon a defendant's motion to dismiss, the plaintiff bears the burden of establishing that the trial court has personal jurisdiction over the defendant. Id., citing Fallang v. Hickey, 40 Ohio St.3d 106, 107, 532 N.E.2d 117 (1988). If the court determines a Civ.R. 12(B)(2) motion to dismiss without an evidentiary hearing, “the plaintiff need only establish a prima facie showing of personal jurisdiction, which requires sufficient evidence to allow reasonable minds to conclude that the trial court has personal jurisdiction.” Austin Miller Am. Antiques, Inc. v. Cavallaro, 10th Dist. No. 11AP–400, 2011-Ohio-6670, 2011 WL 6835024, ¶ 7. In resolving the motion, the court must view the allegations in the pleadings and the evidence in the light most favorable to the plaintiff and make all reasonable inferences in the plaintiff's favor. Kauffman Racing at ¶ 27, citing Goldstein v. Christiansen, 70 Ohio St.3d 232, 638 N.E.2d 541 (1994).

B. First Assignment of Error

{¶ 8} As a preliminary matter, we note that in her memorandum contra to Budde's motion to dismiss, Simmons employed the “two-step” specific personal jurisdiction analysis for nonresidents set by the Supreme Court of Ohio in Goldstein and more recently in Kauffman Racing at ¶ 28, and Fraley v. Estate of Oeding, 138 Ohio St.3d 250, 2014-Ohio-452, 6 N.E.3d 9, ¶ 12.

{¶ 9} However, on appeal, Simmons continued to advance the two-step specific personal jurisdiction analysis for nonresidents but then shifted her argument to contend, for the first time, that Budde is actually a “resident” of Ohio subject to personal jurisdiction under Prouse, Dash & Crouch, L.L.P. v. DiMarco, 116 Ohio St.3d 167, 2007-Ohio-5753, 876 N.E.2d 1226, ¶ 5. Simmons also arguably¹ raised for the first time on appeal, at oral argument, the theory that Ohio courts have general personal jurisdiction over Budde independent from the two-step specific personal jurisdiction analysis.

{¶ 10} “A party may not change its theory of the case and present new arguments for the first time on appeal.” Clifton Care Ctr. v. Ohio Dept. of Job & Family Servs., 10th Dist., 2013-Ohio-2742, 994 N.E.2d 879, ¶ 13. Neither may a party advance new arguments in its reply brief or at oral argument. Id.; Andreyko v. Cincinnati, 153 Ohio App.3d 108, 2003-Ohio-2759, 791 N.E.2d 1025, ¶ 20, citing App.R. 12(A)(1)(b) and 16(A)(7). See also App.R. 21(I) (“If counsel on oral argument intends to present authorities not cited in the brief, counsel shall, at least five days prior to oral argument, present in writing such authorities to the court and to opposing counsel, unless there is good cause for a later presentment.”).

{¶ 11} Simmons' specific personal jurisdiction argument before the trial court gave no indication of either the Ohio resident theory or the independent general

38 N.E.3d 964

personal jurisdiction theory. Simmons clearly states in her memorandum contra, “[i]t is well-established that in order to determine whether it has personal jurisdiction over a nonresident defendant, an Ohio court must engage in a two-step analysis,” cites Goldstein, and in her due process analysis, only cites and applies the standard for specific jurisdiction without reference to general jurisdiction or its standard. (Dec. 6, 2013 Memorandum Contra, 3.)

{¶ 12} As Simmons did not argue either the Ohio resident theory or the independent general personal jurisdiction theory before the trial court, we decline to address those arguments as alternative bases for personal jurisdiction in this case for the first time. See Kauffman Racing at ¶ 46 (addressing only specific personal jurisdiction where the plaintiff failed to allege general personal jurisdiction); Daimler AG v. Bauman, ––– U.S. ––––, 134 S.Ct. 746, 758, 187 L.Ed.2d 624 (2014) (addressing only general jurisdiction where the plaintiff did not argue specific jurisdiction); Fraley Trucking v. Oeding, 12th Dist., 2012-Ohio-4770, 981 N.E.2d 911, ¶ 9, rev'd on other grounds, 138 Ohio St.3d 250, 2014-Ohio-452, 6 N.E.3d 9. Instead, we will address the theory that Simmons presented to the trial court that “Ohio's long-arm statute and the applicable civil rule confer personal jurisdiction in this matter, and, exercising jurisdiction under the statute and rule comports with the defendant's due process rights.” (Dec. 6, 2013 Memorandum Contra, 9.) For the reasons below, we disagree with Simmons.

{¶ 13} “Ohio's long-arm statute is not coterminous with due process.” Kauffman Racing at ¶ 45. Therefore, “[t]he determination whether an Ohio court has personal jurisdiction over an out-of-state defendant requires a two-step inquiry.” Fraley at ¶ 12. See also Shoptaw v. I & A Auto Sales, Inc., 10th Dist. No. 12AP–453, 2012-Ohio-6259, 2012 WL 6738672, ¶ 6. As stated in Fraley:

First, the court must determine whether the defendant's conduct falls within Ohio's long-arm statute or the applicable civil rule. Kentucky Oaks Mall Co. v. Mitchell's Formal Wear, Inc., 53 Ohio St.3d 73, 75 [559 N.E.2d 477] (1990). If it does, then the court must consider whether the assertion of jurisdiction over the nonresident defendant would deprive the defendant of due process of law under the Fourteenth Amendment to the United States Constitution. Id.

Id. at ¶ 12.

{¶ 14} We begin with the question whether Simmons' conduct falls within Ohio's long-arm statute, R.C. 2307.382, or...