COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72666 MARVEL CONSULTANTS, INC. : ACCELERATED DOCKET : : JOURNAL ENTRY PLAINTIFF-APPELLANT : : AND v. : : OPINION GILBAR ENGINEERING, INC. : : PER CURIAM : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 22, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-317083. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Keith E. Belkin, Esq. 1111 Tower East 20700 Chagrin Boulevard Shaker Heights, OH 44122-5334 For Defendant-Appellee: Christopher A. Holecek, Esq. Wegman, Hessler, Vanderburg & O'Toole 6100 Rockside Woods Boulevard No. 345 Cleveland, OH 44131 -2- PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.App.R. 25, the record from the Cuyahoga County Court of Common Pleas and the briefs of counsel. Marvel Consultants, Inc., plaintiff-appellant, appeals from the judgment of the trial court which granted the motion to dismiss of Gilbar Engineering, Inc., defendant-appellee, for lack of personal jurisdiction. Plaintiff-appellant assigns two errors for this court's review. Plaintiff-appellant's appeal is not well taken. On October 21, 1996, plaintiff-appellant, an executive recruiting firm located in Cleveland, Ohio, filed a complaint against defendant-appellee, a Michigan engineering firm, in the Cuyahoga County Court of Common Pleas alleging that it was entitled to a finder's fee for the placement of Mr. Ed Patterson, an engineer manager, with defendant-appellee. Plaintiff-appellant maintained that the placement of Mr. Patterson was made through a bona fide job order from defendant-appellee. As a result of the alleged job order, plaintiff-appellant argues that it referred Mr. Patterson to defendant-appellee who eventually hired Mr. Patterson at a salary and bonus of $105,000.00 per year. According to plaintiff-appellant's fee policy, which was allegedly faxed to defendant-appellee on December 18, 1995 in confirmation of the alleged job order, defendant-appellee owed plaintiff-appellant a service fee of $36,750.00. Also contained within the fee policy schedule was a forum selection clause establishing the jurisdiction -3- of the State of Ohio and the Ohio court over the underlying transaction. On November 22, 1996, defendant-appellee made a special appearance in the Cuyahoga County Common Pleas Court for the purpose of filing a motion to dismiss plaintiff-appellant's complaint pursuant to Civ.R. 12(B)(2)-(5). Defendant-appellee maintained that the Cuyahoga County Common Pleas Court did not have in personam jurisdiction over the company as it was a Michigan Corporation that did not do business within the State of Ohio and did not, in any way, agree to the forum selection language contained within plaintiff-appellant's standard fee schedule that was unilaterally faxed to defendant-appellee on December 18, 1995. In fact, it was defendant-appellee's position that it had contacted Mr. Patterson months before regarding possible employment after learning of Patterson's availability through a third party, Joe Griffin, an engineer employed by Decoma, Inc., who had learned that defendant-appellee was interested in hiring an experienced optics engineer. On February 11, 1997, the trial court denied defendant- appellee's motion to dismiss without opinion. Discovery continued and on April 22, 1997, defendant-appellee moved for summary judgment on plaintiff-appellant's complaint. The trial court did not rule upon defendant-appellee's summary judgment motion. On April 24, 1997, plaintiff-appellant filed a motion to compel three employees of defendant-appellee, who were Michigan residents, to travel to Ohio for deposition. At this time, -4- defendant-appellee requested that the trial court reconsider its earlier ruling denying defendant-appellee's motion to dismiss for lack of in personam jurisdiction. On May 15, 1997, the trial court issued the following judgment entry: Plaintiff's motion to compel is denied. Court has reconsidered its 2/11/97 ruling denying defendant's motion to dismiss, and finds that the only means to Cuyahoga County is a forum selection clause in a fee agreement unilaterally faxed from Plaintiff to Defendant. No minimum contacts with Ohio have been established. Defendant's motion to dismiss is granted for lack of this court's jurisdiction. OSJ VOL 2086 PG 0169. On June 12, 1997, plaintiff-appellant filed a timely notice of appeal from the judgment of the trial court. Plaintiff-appellant's first assignment of error states: PURSUANT TO THE FORUM SELECTION CLAUSE SET FORTH IN PLAINTIFF'S FEE CONFIRMATION LETTER, DEFENDANT IS SUBJECT TO THE JURISDICTION OF THE CUYAHOGA COUNTY COURT OF COMMON PLEAS AND THE TRIAL COURT'S GRANTING OF DEFENDANT'S MOTION TO RECONSIDER, MOTION TO DISMISS/MOTION FOR SUMMARY JUDGMENT IS IN ERROR AND SHOULD BE REVERSED. Plaintiff-appellant argues, through its first assignment of error, that the trial court improperly granted defendant-appellee's motion to dismiss the complaint for lack of in personam jurisdiction. Specifically, plaintiff-appellant maintains that the forum selection clause contained within its fee schedule provides that the State of Ohio and the Ohio court system would possess jurisdiction over any disputes arising out of the underlying agreement. It is plaintiff-appellant's position that, by accepting the faxed fee schedule on December 18, 1995 and subsequently hiring -5- Mr. Patterson as an employee, defendant-appellee subjected itself to jurisdiction in Ohio. Defendant-appellee argues that it cannot be subject to jurisdiction in Ohio merely because plaintiff-appellant made an unsolicited telephone call to defendant-appellee's Michigan office on December 18, 1995 and then followed that call with an unsolicited fax containing its standard fee policy along with the forum selection clause. It is defendant-appellee's position that a forum selection clause contained within a written commercial contract must be fully and freely negotiated in order to be enforceable. Defendant-appellee maintains that, in this case, absolutely no negotiation took place and, in fact, there was no underlying contract between itself and plaintiff-appellant. Lastly, defendant-appellee argues that it had no minimum contacts with Ohio and therefore is not subject to Ohio's jurisdiction pursuant to R.C. 2307.382. Historically,a forum selection clause in a contract was held per se invalid on the grounds that it attempted to oust one court of its jurisdiction. Barrett v. Picker International, Inc. (1990), 68 Ohio App.3d 820, 823; Clinton v. Janger (N.D. Ill. 1984), 583 F.Supp. 284, 288. However, in Bremen v. Zapata Off Share Co. (1972), 407 U.S. 1, 9-12, 92 S.Ct. 1907, 1912-1914, 32 L.Ed.2d 513, 519, 521, the United States Supreme Court held that a forum selection clause is generally valid unless construed to be unreasonable. The court stated: *** [A] forum selection clause that is fairly bargained for and not the result of fraud will -6- be enforced so long as to do so is reasonable at the time of litigation and does not deprive a litigant of his day in court. See also, United States Management Corp. V. Mahoning Valley Solar Resources, Inc. (1984), 16 Ohio App.3d 476, 477-478; Kennecorp Mtge. Brokers, Inc. v. County Club Convalescent Hosp., Inc. (1996), 66 Ohio St.3d 173, 175. R.C. 2307,382, which sets forth the circumstances under which a court may exercise in personam jurisdiction over an out-of-state party, provides in pertinent part: (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 Anilas, Inc. v. Kern (1987), 31 Ohio St.3d 163, 164, the Ohio Supreme Court, in dealing with the issue of in personam jurisdiction pursuant to R.C. 2307.382, stated: 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 judgment minimum contacts, a court properly focuses on `the relationship among the defendant, the forum and the litigation ***.' Shaffer v. Heitner -7- (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. [643] 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]. See, also, Sales Consultants v. Buehler Lumber Co. (1992), 79 Ohio App.3d 289, 291. In the case sub judice, a review of the record from the trial court demonstrates that the forum selection clause contained within the standard fee schedule was not fairly bargained for as alleged by plaintiff-appellant. Rather, the clause was merely part of a fee schedule that was admittedly faxed to defendant-appellee as a result of a single unsolicited telephone contact regarding the possible employment of Mr. Ed Patterson. There is nothing in the record to show that defendant-appellee conclusively agreed to the -8- fee schedule or consented to the forum selection clause set forth therein. In fact, evidence was set forth through the affidavit of Mr. Gary Rebar, president of Gilbar Engineering, tending to demonstrate that the fee schedule in question was unequivocally rejected by defendant-appellee in a letter dated February 1, 1996. In addition, it is apparent from the record that defendant- appellee did not possess the required minimum contacts necessary to render it subject to in personam jurisdiction in the State of Ohio. Defendant-appellee did not transact any business within Ohio nor did it avail itself of the privilege of conducting any activities within the state. Accordingly, the trial court did not err by dismissing plaintiff-appellant's complaint for lack of in personam jurisdiction over defendant-appellee. Under the circumstances presented here, the State of Michigan is the appropriate forum to litigate the underlying contractual dispute. Plaintiff-appellant's first assignment of error is not well taken. Plaintiff-appellant's second and final assignment of error states: THE TRIAL COURT ERRED IN RULING ON DEFENDANT'S MOTION TO RECONSIDER, MOTION TO DISMISS/MOTION FOR SUMMARY JUDGMENT TWO (2) DAYS PRIOR TO THE DATE SET BY THE TRIAL COURT FOR PLAINTIFF TO REPLY TO DEFENDANT'S PLEADINGS. Plaintiff-appellant maintains that the trial court ruled upon defendant-appellee's motion to reconsider, motion to dismiss/motion for summary judgment prior to the date set forth by the trial court -9- for filing plaintiff-appellant's brief in opposition to defendant- appellee's motion for summary judgment thereby depriving plaintiff- appellant a meaningful opportunity to respond to the outstanding motion. A review of the record however demonstrates that the trial court did not rule upon defendant-appellee's summary judgment motion at any time during the pendency of the case. The trial court merely reconsidered its previous ruling on defendant- appellee's motion to dismiss for lack of in personam jurisdiction filed on November 20, 1996 and fully briefed by both parties prior to the trial court's ruling. Therefore, plaintiff-appellant was not, as it contends, deprived of the opportunity to respond to the motion to dismiss for lack of in personam jurisdiction. Plaintiff-appellant's second and final assignment of error is not well taken. Judgment of the trial court is hereby affirmed. -10- It is ordered that appellee recover of appellant costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA, PRESIDING JUDGE TIMOTHY E. MCMONAGLE, JUDGE *ROBERT E. HOLMES, JUSTICE *Sitting by assignment: Justice Robert E. Holmes, Retired Justice of the Ohio Supreme Court. N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's .