State ex rel. Sweere v. Crookham

• Decision Date: 08 April 1980
• Citation: 609 P.2d 361,289 Or. 3
• Parties: STATE ex rel. Joseph SWEERE, Plaintiff-Relator, v. Charles CROOKHAM, Judge of the Circuit Court of the State of Oregon for Multnomah County, Defendant. SC 26515.
• Court: Oregon Supreme Court

Page 361

609 P.2d 361

289 Or. 3

STATE ex rel. Joseph SWEERE, Plaintiff-Relator, v. Charles CROOKHAM, Judge of the Circuit Court of the State of

Oregon for Multnomah County, Defendant.

SC 26515.

Supreme Court of Oregon, In Banc.

Argued and Submitted Jan. 8, 1980.

Decided April 8, 1980.

Frank M. Parisi, of Spears, Lubersky, Campbell & Bledsoe, Portland, argued the cause for plaintiff-relator. With him on the briefs was John M. Berman, Portland.

Rodney H. Grafe, certified law student, argued the cause for defendant. With him on the brief was Chris L. Mullman, of Ragen, Roberts, O'Scannlain, Robertson & Neill, Portland.

DENECKE, Chief Justice.

The issue in this mandamus proceeding is whether the Oregon long-arm statute, ORS 14.035, permits an Oregon court to acquire personal jurisdiction over plaintiff/relator Joseph Sweere.

The underlying litigation involves a contractual dispute between Rusth Industries, an Oregon corporation, and W-P Distributors, a North Dakota corporation, with a principal place of business in Minnesota. The complaint alleges that Rusth appointed W-P as a distributor of Rusth products in a territory outside the State of Oregon. Pursuant to that agreement W-P purchased a quantity of Rusth products, which were shipped to W-P in Minnesota. A complaint filed by Rusth in Multnomah County Circuit Court seeks damages from W-P for W-P's alleged failure to either pay for or return some of the Rusth merchandise.

The complaint states a separate cause of action against relator Sweere, based upon a personal guaranty executed by the relator. The guaranty states:

"I, Joseph R. Sweere, do personally guarantee that on Monday, 11 December 1978, the 2,695 Strato Therm units in inventory of W-P Distributors, Inc. will be shipped back to Rusth Industries, Ltd, in Beaverton, Oregon.

"Freight on the shipment will be prepaid by W-P Distributors to Beaverton, Oregon or funds for any units not shipped will be remitted. * * *."

The copy of the underlying agreement attached to the complaint names the relator as the general manager of W-P. Other than that, the record does not indicate that the relator had any financial interest in W-P.

The relator was personally served in Minnesota. He made a special appearance in the circuit court and moved to quash service for lack of personal jurisdiction. In his supporting affidavit the relator stated: that the president of Rusth drafted the guaranty in Minnesota; that Sweere signed it in Minnesota and hand-delivered it to Rusth officers in Minnesota; that when the guaranty was signed the merchandise was in Minnesota; that the relator owned no real property in Oregon; and that he had been physically present in Oregon only once, "prior to and independent of" the execution of the guaranty. No counter-affidavits were filed.

The court denied the motion to quash. Relator sought a writ of mandamus to compel Judge Crookham to quash service. We issued an alternative writ.

Every challenge to the jurisdiction of a state court over a nonresident defendant presents two questions. First, does the long-arm statute provide that the court has jurisdiction? If so, would the assertion of jurisdiction over that defendant offend the due process rights guaranteed by the 14th Amendment? State ex rel. Academy Press v. Beckett, 282 Or. 701, 708, 581 P.2d 496 (1978). If the statute did not confer jurisdiction there would be no occasion to reach the constitutional issue.

In this case the applicable statutory provision is ORS 14.035(1)(a), which provides:

"Any person, firm or corporation whether or not a citizen or a resident of this state, who, in person or through an agent, does any of the actions enumerated in this subsection, thereby submits such person and, if an individual, his personal representative to the jurisdiction of the courts of this state, as to any cause of action or suit or proceeding arising from any of the following:

"(a) The transaction of any business within this state;

" * * *."

Previously, we have held that the transaction of business within this state includes actions taken elsewhere which cause important business consequences in this state. In Academy Press, supra, an Oregon author sued an Illinois publisher, contending that the publisher breached an agreement to publish the author's book. No representative of the publisher ever set foot in Oregon, and the contract was negotiated in Chicago. At the direct request of the publisher, however, the author invested 480 hours revising his manuscript while living in Eugene. We held that the publisher's demands for revisions caused sufficient economic consequences in Oregon so that the publisher could be held to have transacted business in this state, within the meaning of ORS 14.035(1) (a). 282 Or. at 713, 581 P.2d 496.

In State ex rel. White Lbr. v. Sulmonetti, 252 Or. 121, 448 P.2d 571 (1968), a Florida lumber wholesaler contacted an Oregon supplier by telephone, and ordered twenty railroad cars of plywood to be manufactured to the buyer's specifications. The Oregon supplier instructed a mill in Grants Pass to begin work on the order. After receiving and paying for one carload of plywood the buyer suspended payment, complaining that the plywood did not conform to specifications. The supplier filed suit for damages in Oregon. We sustained jurisdiction over the buyer, on grounds that the telephone order produced significant economic consequences in Oregon. 252 Or. at 124, 126, 448 P.2d 571.

In order to invoke the jurisdiction of any court a party must allege such facts as are necessary to establish that the court has jurisdiction to act. Parmele v. Mathews, 233 Or. 616, 620, 379 P.2d 869 (1963). The burden of coming forward with the "jurisdictional facts" lies upon the party asserting jurisdiction. McNutt v. General Motors Accept. Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936); Parmele, supra, 233 Or. at 620, 379 P.2d 869. In this case the jurisdictional fact which Rusth must establish is that the relator's execution of a personal guaranty in Minnesota produced important economic consequences in Oregon. ¹

The guaranty could not have been the inducement for Rusth to sign a contract with W-P, because the signing of the contract and the shipment of the merchandise to Minnesota preceded the execution of the guaranty by several months. Rusth may have lost as much as $5,038 but there is no evidence this would not have occurred if Sweere had not executed the guaranty. ²

The respondent contends that even if the relator is not subject to jurisdiction on account of his own actions, the guarantor of a company that is transacting business in Oregon should also be deemed to be transacting business in Oregon. The respondent relies on dictum from our opinion in State ex rel. Ware v. Hieber, 267 Or. 124, 133, 515 P.2d 721, 725 (1973), where we said: "(W)hen the parties to the underlying transaction which was guarantied were transacting business in the forum state the guarantors also would be found to be transacting business within the forum state."

Ware involved a franchise arrangement between Black Diamond, an Oregon motor home manufacturer, and Keller Enterprises, a Nevada corporation which sold motor homes in California. Jay and Dulcita Ware were officers and majority shareholders of Keller Enterprises. Mr. Ware came to Oregon to evaluate Black Diamond's operation and to negotiate a dealer franchise. After Black Diamond granted the franchise Mr. Ware drove a motor home back to California. Black Diamond became suspicious of Keller Enterprises and required a guaranty from the Wares as a condition to continuing business with Keller. In reliance upon the guaranty Black Diamond continued to sell motor homes to Keller.

Keller defaulted in its payments for the motor homes and Black Diamond brought suit, in Oregon, on the guaranty. The Wares defended on the ground that Oregon courts lacked jurisdiction over them. We rejected this defense for a number of reasons. First, we held that Keller Enterprises was transacting business in Oregon, and that "the personal guaranty of the Wares must be considered as one aspect of the entire course of business between Keller Enterprises and Black Diamond." 267 Or. at 132-33, 515 P.2d at 725. Second, the guaranty caused important business consequences in Oregon, because Black Diamond made the sale of vehicles to Keller conditional upon its execution. Id. at 133, 515 P.2d 721. We also noted that Mr. Ware came to Oregon to commence the transaction and that Oregon was a convenient place to try the issues arising out of the dispute. Id.

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