COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73428 PATLEN, INC., : : Plaintiff-Appellant : JOURNAL ENTRY : and vs. : OPINION : PETER GARDNER, ADMINISTRATOR, : ET AL., : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 15, 1998 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Case No. 281842 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: Gerald L. Steinberg COHEN & STEINBERG 1020 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 For defendants-appellees: Sheldon P. Starke Two Commerce Park Square 23220 Chagrin Boulevard, Suite 200 Beachwood, Ohio 44122-5409 -2- NAHRA, J.: Appellant, Patlen, Inc., appeals the trial court's dismissal of its complaint against appellees, Peter Gardner, individually and as administrator of the Estate of Robert Gardner, for lack of personal jurisdiction. Appellant's complaint alleged that Gardner breached an employment services contract under which Patlen, Inc. was to locate and obtain assets on behalf of Gardner as administrator of his father's estate and that Gardner committed fraud. Inthe complaint, appellant alleged that it entered into a contract with Gardner, that Gardner fraudulently induced it to disclosing the nature and location of the assets, that Gardner claimed the assets on his own, and that Gardner failed to pay it its fee under the contract. In his motion to dismiss appellant's complaint, Gardner argued that the trial court could not exercise personal jurisdiction because he did not have the minimum contacts with Ohio which would subject him to its jurisdiction. Gardner supported his motion by averring that he was a resident of the state of California, had never supplied goods or services in Ohio, had never solicited business in Ohio, did not own an interest in any property in Ohio, and had never visited Ohio. He also averred that his sole contact with the state of Ohio was his dealing with appellant, that appellant initiated contact with him, and that the dealings were conducted via telephone and mail. Appellant's assignment of error reads: -3- THE TRIAL COURT ERRED BY GRANTING THE DEFENDANTS' SUPPLEMENTAL PRE-ANSWER MOTION TO DISMISS FILED ON SEPTEMBER 4, 1996. Appellant argues that under R.C. 2307.382 and Civ.R. 4.3 appellees are subject to jurisdiction in Ohio. In order to determine whether or not a court may exercise personal jurisdiction over a non-resident, the Ohio Supreme Court stated that the court must determine whether the state's `long-arm' statute and applicable civil rule confer personal jurisdiction ***. U.S. Sprint Communications Co., L.P. v. Mr. K's Foods, Inc. (1994) 68 Ohio St.3d 181, 184, 624 N.E.2d 1048, 1051. R.C. 2307.382 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; *** (6) Causing tortious injury in this state to any person by an act outside this state committed with the purpose of injuring persons, when he might reasonably have expected that some person would be injured thereby in this state; *** Civ.R. 4.3 provides in pertinent part: (A) When service permitted Service of process may be made outside of this state, as provided in this rule, in any action in this state, upon a person who, at the time of service of process, is a nonresident of this state or is a resident of this state who is absent from this state. "Person" includes an individual, an individual's executor, administrator, or other personal representative, or a corporation, partnership,association, or any other legal or commercial entity, who, acting directly or by an agent, has caused an event to occur out of which the -4- claim that is the subject of the complaint arose, from the person's: (1) Transacting any business in this state; *** (9) Causing tortious injury in this state to any person by an act outside this state committed with the purpose of injuring persons, when the person to be served might reasonably have expected that some person would be injured by the act in this state; *** In applying the statutory and civil rule requirements to establish jurisdiction, it must be shown that the non-resident defendant has minimum contacts within the forum state. Int'l. Shoe Co. v. Washington (1945), 326 U.S. 310. A plaintiff can demonstrate the minimum contacts necessary to impose jurisdiction on a non-resident defendant if it is proven that the defendant purposely avail[ed himself] of the privilege of conducting activities within the forum state. Hanson v. Dekla (1958), 357 U.S. 235, 253. The Supreme court of Ohio has noted that R.C. 2307.382(A)(1) and Civ.R. 4.3(A)(1) are written broadly and may encompass a single transaction. Kentucky Oaks Mall Co. v. Mitchell's Formal Wear, Inc. (1990), 53 Ohio St.3d 73, 75, 559 N.E.2d 477, 480. However, we cannot say that in this case Gardner has sufficient minimum contacts with Ohio to impose personal jurisdiction. In Krutowsky v. Simonson (1996), 109 Ohio App.3d 367, 672 N.E.2d 219, the court outlined the analysis required to determine whether or not a non-resident defendant is subject to jurisdiction as follows: -5- First, the defendant must purposely avail himself of the privilege of acting in the forum state. Second, the cause of action must arise from the defendant's activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable. Cincinnati Art Galleries v. Fatzie (1990), 70 Ohio App.3d 696, 699, 591 N.E.2d 1336, 1338, quoting S. Machine Co. v. Mohasco Industries, Inc. (C.A. 6), 401 F.2d 374, 381. In Krutowsky, supra, the plaintiff brought a complaint in Ohio against a non-resident defendant alleging breach of contract, fraudulent misrepresentation, and unfair trade practices. Id. at 369, 672 N.E.2d at 220. In Krutowsky, the court determined that Ohio could not exercise its jurisdiction because the non-resident defendant did not by his own efforts initiate contact with the plaintiff, did not reside in or perform work in Ohio, and, therefore, did not purposefully subject himself to Ohio's jurisdiction.Id. at 371, 672 N.E.2d at 222. Moreover, the court in Krutowsky noted that the non-resident defendant: [D]id not need to come into contact with Ohio in order to enter into the contract. The only intentional contact Simonson [the non-resident defendant] had with Ohio was the mailing of invoices and reports to Ohio and also calling Krutowsky in Ohio to occasionally give updates on the work. Such actions, without more, do not rise to the level of minimum contacts. Id., citing Friedman v. Speiser, Krause & Madole, P.C. (1988), 56 Ohio App.3d 11, 14, 565 N.E.2d 607, 609-10. We find the analysis in Krutowsky applicable to this case. Appellant initiated the only contact Gardner had in Ohio and Gardner did not need to come into contact with Ohio in order to enter into the contract. Moreover, the contract at issue was not -6- one establishing a continuing relationship. Cf., Kentucky Oaks Mall Co., supra. Accordingly, we hold that Gardner's contact with Ohio does not rise to a level of contact which would subject Gardner to personal jurisdiction in Ohio. Appellant's sole assignment of error is not well taken. Judgment affirmed. -7- It is ordered that appellees recover of appellant their 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 JUDGE DYKE, P.J., and KARPINSKI, J., CONCUR. N.B. This entry is an announcement of the court's decision. See 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 announcement of decision by the .