Viers v. Mounts, Civ. A. No. 78-0168-B.
| Court | United States District Courts. 4th Circuit. United States District Court (Western District of Virginia) |
| Writing for the Court | Herman W. Lester, Combs & Lester, P.S.C., Pikeville, Ky., for defendants |
| Citation | 466 F. Supp. 187 |
| Decision Date | 06 February 1979 |
| Docket Number | Civ. A. No. 78-0168-B. |
| Parties | Joshua VIERS et al., Plaintiffs, v. Paul MOUNTS et al., Defendants. |
466 F. Supp. 187
Joshua VIERS et al., Plaintiffs,
v.
Paul MOUNTS et al., Defendants.
Civ. A. No. 78-0168-B.
United States District Court, W. D. Virginia, Big Stone Gap Division.
February 6, 1979.
J. D. Morefield, Browning, Morefield, Schelin, Cody & Arrington, P. C., Abingdon, Va., for plaintiffs.
Herman W. Lester, Combs & Lester, P.S.C., Pikeville, Ky., for defendants.
MEMORANDUM OPINION
GLEN M. WILLIAMS, District Judge.
Plaintiffs Joshua and Jerry Viers, doing business as J & J Contractors, instituted this breach of contract action on August 30, 1978, pursuant to Title 28 U.S.C. § 1332(a)(1) (Supp.1978), diversity of citizenship. Plaintiffs are citizens of the Commonwealth of Virginia and defendants Paul and Vivian Mounts are citizens of the State of Kentucky. Plaintiffs claim an amount in controversy in excess of $10,000 and accordingly subject matter jurisdiction is perfected under Section 1332.
Personal jurisdiction over the nonresident defendants is asserted under the Virginia long arm statute, Va.Code Ann. § 8.01-328.-1.A.1. (Repl. Vol. 1977), with process served pursuant to Rule 4(e), Fed.R.Civ.P., and Va.Code Ann. § 8.01-329. (Repl. Vol. 1977), providing for substituted service on the Secretary of the Commonwealth of Virginia as statutory agent for the nonresident defendants.
In a special appearance in this court, defendants entered objections to the sufficiency of service of process1 and the assertion of personal jurisdiction over them, and moved the court to dismiss the action or quash service of process. Fed.R.Civ.P. 12(b)(2) & (5). Plaintiffs opposed the motions. On December 20, 1978, the court conducted a hearing on defendants' motions, at which time the parties offered evidence supporting their respective positions on the jurisdictional issue. The parties' versions of the facts giving rise to this action, as revealed in the hearing, are conflicting and contradictory, and can be summarized at best as follows:
During the summer of 1977, plaintiffs (Viers) and defendants (Mounts) entered into contract negotiations for the construction of a home in Kentucky for Mr. and Mrs. Mounts. The Mounts apparently initiated the negotiations by a telephone call from their home in Phelps, Kentucky, to the Viers in Davenport, Virginia. Later, while in Kentucky on other business, the Viers stopped at the Mounts' restaurant in Phelps, and the parties discussed the type of home the Mounts desired to have constructed. At this meeting the Mounts provided brochures and pictures of homes they thought might interest them, but no agreement between the parties was reached.
Desiring to observe the quality of the Viers' work, the Mounts next visited one of the Viers' job sites at Poplar Creek, Virginia. During this visit the defendants examined and inspected the Viers' work at the site, obviously to determine whether the quality of the Viers' work was suitable to them.
After their examination of the Viers' work, the Mounts again contacted the plaintiffs
The meeting at the Dixie Drive-In took place as arranged; however, the parties disagree as to what there transpired. Plaintiffs state that the parties made an oral contract which was later formalized in Kentucky by the execution of a written instrument embodying the identical terms of the oral agreement. Defendants take the position that the parties did not reach an agreement at the Dixie Drive-In, but that additional negotiations took place which finally led to the execution of a written contract in Kentucky.
In support of their position, plaintiffs testified that the Mounts arrived at the Dixie Drive-In with a picture and the floor plan of the house they desired. The Mounts wanted to know if the plaintiffs could construct the house in Kentucky with several changes and if the plaintiffs would furnish all material and labor necessary to do so. The Mounts indicated the changes they desired in the plan, and the plaintiffs then allegedly made a $30,000 offer to construct the house with the Mounts providing the material and the plaintiffs furnishing labor only. Plaintiffs aver that the Mounts accepted this offer and that the terms were later reduced to writing and read to the Mounts over the telephone prior to the actual execution of the contract. Plaintiffs state that during this telephone conversation the Mounts again agreed to the terms. Later, the plaintiffs took the written instrument to Phelps, Kentucky, where all the parties executed the contract and the Mounts gave plaintiffs a down payment of $10,000. Plaintiffs allege that no terms outside of the instrument itself were discussed at Phelps except for provisions relating to the connection of their camper to utility outlets at the work location.
Defendants, on the other hand, state that no agreement was reached at the Dixie Drive-In. They allege that the Viers could not state a price without studying the plans, and that they took the plans home, studied them and then contacted the defendants. Defendants offered testimony to the effect that Jerry Viers contacted them by telephone and offered a price of $32,000, which the Mounts refused. Another call produced an offer of $30,000, which amount the written contract subsequently embodied.
The Mounts argue that the sole agreement between the parties is the contract executed at Phelps, Kentucky, in the Mounts' restaurant, subsequent to the Grundy meeting. Defendants further allege that final negotiations, including the discussion of previously unmentioned terms, execution and the exchange of a $10,000 down payment all transpired at this meeting, and they offered corroborating testimony in support of these contentions.
Whether it was merely a reaffirmation of an earlier oral contract, as plaintiffs...
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Noble Sec., Inc. v. Miz Engineering, Ltd., Civil Action No. 2:05cv722.
...business" under the long-arm statute and comport with the minimum contacts requirements of the Due Process Clause. Viers v. Mounts, 466 F.Supp. 187, 190-91 (W.D.Va.1979) (noting that mere contract negotiations carried out in Virginia between a state citizen and a nonresident with execution ......
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United Coal Co. v. Land Use Corp., Civ. A. No. 82-0218-A.
...and (2) if so, whether to assert jurisdiction would violate the Due Process Clause of the fourteenth amendment." Viers v. Mount, 466 F.Supp. 187, 189-90 (W.D.Va.1979). See Peanut Corp. of America v. Hollywood Brands, Inc., 696 F.2d 311, 313 (4th Cir.1982); Haynes v. James H. Carr, Inc., 427......
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Bay Tobacco, LLC v. Bell Quality Tobacco Products, No. CIV.3:03 CV 130.
...Commonwealth so long as the cause of action asserted arises from at least a single, purposeful transaction in Virginia. Viers v. Mounts, 466 F.Supp. 187, 190 (W.D.Va. 1979). Here, the only cause of action that may be viewed as arising out of the transaction of business in Virginia is the br......
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Neiman v. Rudolf Wolff & Co., Ltd., Nos. 79-1622
...Fleischmann, 386 F.Supp. 436 (S.D.N.Y.1973); ECC Corp. v. Slater Elec., Inc., 336 F.Supp. 148 (E.D.N.Y.1971). But see Viers v. Mounts, 466 F.Supp. 187, 191 When a meeting in the forum state has been viewed as an insignificant portion of the negotiations concerning only minor details of the ......
-
Noble Sec., Inc. v. Miz Engineering, Ltd., Civil Action No. 2:05cv722.
...business" under the long-arm statute and comport with the minimum contacts requirements of the Due Process Clause. Viers v. Mounts, 466 F.Supp. 187, 190-91 (W.D.Va.1979) (noting that mere contract negotiations carried out in Virginia between a state citizen and a nonresident with execution ......
-
United Coal Co. v. Land Use Corp., Civ. A. No. 82-0218-A.
...and (2) if so, whether to assert jurisdiction would violate the Due Process Clause of the fourteenth amendment." Viers v. Mount, 466 F.Supp. 187, 189-90 (W.D.Va.1979). See Peanut Corp. of America v. Hollywood Brands, Inc., 696 F.2d 311, 313 (4th Cir.1982); Haynes v. James H. Carr, Inc., 427......
-
Bay Tobacco, LLC v. Bell Quality Tobacco Products, No. CIV.3:03 CV 130.
...Commonwealth so long as the cause of action asserted arises from at least a single, purposeful transaction in Virginia. Viers v. Mounts, 466 F.Supp. 187, 190 (W.D.Va. 1979). Here, the only cause of action that may be viewed as arising out of the transaction of business in Virginia is the br......
-
Neiman v. Rudolf Wolff & Co., Ltd., Nos. 79-1622
...Fleischmann, 386 F.Supp. 436 (S.D.N.Y.1973); ECC Corp. v. Slater Elec., Inc., 336 F.Supp. 148 (E.D.N.Y.1971). But see Viers v. Mounts, 466 F.Supp. 187, 191 When a meeting in the forum state has been viewed as an insignificant portion of the negotiations concerning only minor details of the ......