Witbeck Through Witbeck v. Bill Cody's Ranch Inn, Docket No. 79666

• Decision Date: 21 March 1986
• Docket Number: Docket No. 79666
• Citation: 383 N.W.2d 253,147 Mich.App. 587
• Parties: Michelle WITBECK, a minor Through her father and Next Friend Gary WITBECK, Plaintiffs-Appellees, v. BILL CODY'S RANCH INN, a Wyoming corporation; Best Western International, Inc., an Arizona corporation, Defendants-Appellants, and the American Automobile Association, a Virginia corporation, and the Automobile Club of Michigan, a Michigan corporation, jointly and severally, Defendants.
• Court: Court of Appeal of Michigan — District of US

Page 253

383 N.W.2d 253

147 Mich.App. 587

Michelle WITBECK, a minor Through her father and Next Friend Gary WITBECK, Plaintiffs-Appellees, v. BILL CODY'S RANCH INN, a Wyoming corporation; Best Western International, Inc., an Arizona corporation Defendants-Appellants and the American Automobile Association, a Virginia corporation and the Automobile Club of Michigan, a Michigan corporation, jointly and severally, Defendants.

Docket No. 79666.

Court of Appeals of Michigan.

Submitted Aug. 21, 1985.

Decided Dec. 16, 1985.

Released for Publication March 21, 1986.

Nora & Essad by John J. Nora, Plymouth, for plaintiffs-appellees.

Kohl, Secrest, Wardle, Lynch, Clark & Hampton by Michael L. Updike, Farmington Hills, for defendants-appellants.

Before MacKENZIE, P.J., and CYNAR and DEMING, ^* JJ.

CYNAR, Judge.

Defendants Bill Cody's Ranch Inn and Best Western International, Inc., appeal by leave granted from Wayne County Circuit Court Judge Marvin R. Stempien's denial of a motion for accelerated judgment and a motion to decline jurisdiction brought by Bill Cody's Ranch and Best Western, respectively.

This cause of action arises from a personal injury accident that occurred on or near the premises of Bill Cody's Ranch located in the State of Wyoming. Plaintiff, a resident of Michigan, filed suit in Wayne County Circuit Court against Bill Cody's Ranch, Best Western, the American Automobile Association, and the Automobile Club of Michigan seeking damages for the injuries sustained as a result of the accident.

Defendant Bill Cody's Ranch filed a motion for accelerated judgment averring that it was a Wyoming corporation, doing business exclusively in the State of Wyoming, with no business office or agents located in Michigan, and that the Wayne County Circuit Court therefore lacked personal jurisdiction over it. Defendant Best Western filed a motion to decline jurisdiction based on the doctrine of forum non conveniens. The circuit court found that Michigan had in personam jurisdiction over Bill Cody's Ranch and that Michigan was a convenient forum in which to bring this action. The circuit court consequently denied the motion for accelerated judgment and the motion to decline jurisdiction by order dated June 12, 1984.

The underlying facts of this case are as follows. On or about August 28, 1983, plaintiff, Michelle Witbeck, a minor and novice rider, was allegedly placed on a horse selected for her by William Cody, an agent and officer of Bill Cody's Ranch. Plaintiff was allegedly thrown from the horse, and was placed back on the horse by Ken White, also an agent of Bill Cody's Ranch, despite her objections. She was then thrown from the horse a second time. Plaintiff was allegedly injured as a result of being thrown from the horse.

Plaintiff subsequently filed suit in Wayne County Circuit Court against Bill Cody's Ranch, Best Western, the American Automobile Association, and the Automobile Club of Michigan. The basis of plaintiff's complaint and allegations against Bill Cody's Ranch was that the agents of the ranch had been negligent in selecting a horse for a novice rider and in insisting that plaintiff remount the same horse from which plaintiff had been thrown.

The basis of the complaint against Best Western was that Best Western was negligent in recommending Bill Cody's Ranch to plaintiff and her family.

Two issues are presented for our review: I, Does Michigan have limited personal jurisdiction over Bill Cody's Ranch? and II, Did the trial court err in finding that Michigan was not an inconvenient forum?

Issue I: Does Michigan have long-arm jurisdiction over Bill Cody's Ranch?

M.C.L. Sec. 600.715; M.S.A. Sec. 27A.715 authorizes Michigan courts to exercise limited personal jurisdiction over a nonresident corporation and enter judgments against the corporation as a result of an act which creates or consists of the following relationships:

"(1) The transaction of any business within the state.

"(2) The doing or causing any act to be done, or consequences to occur, in the state resulting in an action for tort.

"(3) The ownership, use, or possession of any real or tangible personal property situated within the state.

"(4) Contracting to insure any person, property, or risk located within this state at the time of contracting.

"(5) Entering into a contract for services to be performed or for materials to be furnished in the state by the defendant."

The above-quoted statute was intended to give Michigan courts the full extent of power possible to gain personal jurisdiction over nonresident defendants as is consistent with the principles of due process. Kriko v. Allstate Ins. Co., 137 Mich.App. 528, 357 N.W.2d 882 (1984); Kircos v. Lola Cars, Ltd., 97 Mich.App. 379, 296 N.W.2d 32 (1980). The United States Supreme Court first set forth the modern constitutional test for the assertion of personal jurisdiction over a nonresident defendant by a state court in International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). That case established the due process "minimum contacts" test. Under this test a state may not exercise in personam jurisdiction over a nonresident defendant unless the defendant has certain "minimum contacts" with the forum state such that the maintenance of the suit "does not offend 'traditional notions of fair play and substantial justice' ". This test was reaffirmed by the Supreme Court in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).

In deciding if Michigan is the proper forum for the maintenance of plaintiff's action, an essential consideration is whether defendant Bill Cody's Ranch "purposefully availed" itself of the privilege of conducting activities within Michigan, thus invoking the benefits and protections of Michigan's laws. Khalaf v. Bankers & Shippers Ins. Co., 404 Mich. 134, 148, 273 N.W.2d 811 (1978). The following facts are presented for our consideration.

Defendant Bill Cody's Ranch is in the business of providing services to resort vacationers in Wyoming. The ranch is incorporated and located in Wyoming and has no business offices or registered agents located in Michigan for the purpose of accepting service. However, in an effort to promote its ranch resort, defendant directly advertised in Michigan's American Automobile Association (AAA) Tour Guide and paid for the display ad. AAA allegedly recommended Bill Cody's Ranch to its Michigan club members. Also, agents of the ranch allegedly sent direct mail advertisements into Michigan and accepted telephone reservations from Michigan.

We find that Bill Cody's Ranch purposefully availed itself of the privilege of transacting business in Michigan, thus invoking the benefits and protections of Michigan's laws when it solicited business in Michigan by directly advertising its resort in a magazine reasonably calculated to reach consumers in Michigan, sent direct mail advertisements into Michigan and accepted telephone reservations from Michigan. We also find that plaintiff's cause of action relates to the advertisement since plaintiff, who relied upon the ad, vacationed at Bill Cody's Ranch where the injury resulted. Based on the above factors, we conclude that the requirements for long-arm jurisdiction under M.C.L. Sec. 600.715(1); M.S.A. Sec. 27A.715(1) are satisfied.

Defendant Bill Cody's Ranch cites and relies on the United States Supreme Court's holding in Woodson, supra, and argues that Michigan lacks sufficient minimum contacts with the ranch to exercise personal jurisdiction over defendant. We disagree. Here, unlike in Woodson, Bill Cody's Ranch did solicit business for its resort through advertising reasonably calculated to reach Michigan. By advertising in the Michigan AAA Tour Guide, Bill Cody's Ranch did seek to serve the Michigan market. These factors distinguish this case from the Woodson case. See Woodson, supra, 100 S.Ct. p. 566.

Issue II: Did the trial court err in finding that Michigan was not an inconvenient forum?

The decision to decline jurisdiction based upon the doctrine of forum non conveniens is within the discretion of the trial court. Cray v. General Motors Corp., 389 Mich. 382, 396, 207 N.W.2d 393 (1973). In Cray, the Supreme Court listed the following factors to be considered and weighed in deciding a motion for dismissal based on forum non conveniens:

"1. The private interest of the litigant.

"a. Availability of compulsory process for attendance of unwilling and the cost of obtaining attendance of willing witnesses;

"b. Ease of access to sources of proof;

"c. Distance from the situs of the accident or incident which gave rise to the litigation;

"d. Enforcibility of any judgment obtained;

"e. Possible harassment of either party;

"f. Other practical problems which contribute to the ease, expense and expedition of the trial; "g. Possibility of viewing the premises.

"2. Matters of public interest.

"a. Administrative difficulties which may arise in an area which may not be present in the area of origin;

"b. Consideration of the state law which must govern the case;

"c. People who are concerned by the proceeding.

"3. Reasonable promptness in raising the plea of forum non conveniens."

Application of the foregoing factors is left to the trial court's discretion.

In Anderson v. Great Lakes Dredge & Dock Co., 411 Mich. 619, 628-629, 309 N.W.2d 539 (1981), the Supreme Court stated that a plaintiff's selection of a forum is ordinarily accorded deference. Quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947), the Court stated that " 'unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed' ". The court must consider the plaintiff's choice of forum, and weigh the relative advantages and disadvantages of jurisdiction, and the ease of and obstacles to a fair trial in the state, in determining whether the...