United Shore Financial Services LLC v. William P Lally ( 2014 )

STATE OF MICHIGAN
COURT OF APPEALS
UNITED SHORE FINANCIAL SERVICES, LLC UNPUBLISHED
d/b/a UNITED WHOLESALE MORTGAGE f/k/a October 28, 2014
SHORE FINANCIAL SERVICES d/b/a UNITED
WHOLESALE MORTGAGE,
Plaintiff-Appellant,
v No. 316895
Oakland Circuit Court
WILLIAM P. LALLY, LC No. 2012-129938-CK
Defendant-Appellee.
Before: STEPHENS, P.J., and TALBOT and BECKERING, JJ.
PER CURIAM.
Plaintiff, United Shore Financial Services, LLC, appeals as of right from the trial court’s
order granting defendant, William Lally, summary disposition pursuant to MCR 2.116(C)(1)
(lack of personal jurisdiction). We affirm.
I. BACKGROUND
Defendant is a California resident. Plaintiff is a Michigan-based limited liability
company licensed to do business in Michigan with its principal place of business in Birmingham,
Michigan. In 2006, intending to purchase property in Florida, defendant sought the services of
plaintiff and entered into a mortgage loan transaction with plaintiff. The $114,750 loan was
secured with a 30-year mortgage on the Florida property. According to the terms of the
accompanying note, defendant was to submit his monthly loan payments to plaintiff in
Birmingham. According to plaintiff, defendant failed to honor his agreement to pay back the
loan, so plaintiff filed suit in Michigan raising claims of breach of promissory note, breach of
contract, and unjust enrichment. Defendant responded by filing a motion to dismiss for lack of
personal jurisdiction.
The trial court granted defendant’s motion to dismiss, finding that the exercise of
personal jurisdiction over defendant was not appropriate under Michigan’s long-arm statute
because defendant did not engage in any business within Michigan. In addition, the trial court
declined to exercise limited personal jurisdiction over defendant because it found that doing so
would not comport with due process. Notably, the trial court concluded that plaintiff did not
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purposefully avail himself of the benefits and protections of Michigan law. Further, it found that
plaintiff’s claim did not arise from defendant’s actions in Michigan, as all of the documents in
this case—the mortgage and the note—were signed outside of Michigan. Subsequently, the trial
court denied plaintiff’s motion for reconsideration.
II. STANDARD OF REVIEW
We review de novo the trial court’s decisions on personal jurisdiction and summary
disposition. Jeffrey v Rapid American Corp, 448 Mich. 178, 184; 529 NW2d 644 (1995); Yoost v
Caspari, 295 Mich. App. 209, 219; 813 NW2d 783 (2012).
When reviewing a trial court’s decision on a motion for summary
disposition brought under MCR 2.116(C)(1), the trial court and this Court
consider the pleadings and documentary evidence submitted by the parties in a
light most favorable to the nonmoving party. The plaintiff bears the burden of
establishing jurisdiction over the defendant, but need only make a prima facie
showing of jurisdiction to defeat a motion for summary disposition. The
plaintiff’s complaint must be accepted as true unless specifically contradicted by
affidavits or other evidence submitted by the parties. Thus, when allegations in
the pleadings are contradicted by documentary evidence, the plaintiff may not rest
on mere allegations but must produce admissible evidence of his or her prima
facie case establishing jurisdiction. [Yoost, 295 Mich. App. at 221 (citations and
quotations omitted).]
III. LIMITED PERSONAL JURISDICTION
Whether Michigan courts can exercise limited personal jurisdiction over a nonresident
defendant is a two-part inquiry, requiring a court to determine, under the circumstances, that
Michigan’s long-arm statute applies and that the exercise of jurisdiction does not violate due
process principles. Id. at 222.
A. MICHIGAN’S LONG-ARM STATUTE
The relevant section of the long-arm statute is MCL 600.705, which sets forth limited
personal jurisdiction over nonresident defendants. It provides in pertinent part as follows:
The existence of any of the following relationships between an individual
or his agent and the state shall constitute a sufficient basis of jurisdiction to enable
a court of record of this state to exercise limited personal jurisdiction over the
individual and to enable the court to render personal judgments against the
individual or his representative arising out of an act which creates any of the
following relationships:
(1) The transaction of any business within the state.
As used within the statute, “any” has been interpreted to include “each” and “every,” including
even “the slightest” contact. Yoost, 295 Mich. App. at 229. Although we have yet to interpret the
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phrase “transaction of any business” within the context of MCL 600.705(1), in Oberlies v
Searchmont Resort, Inc, 246 Mich. App. 424, 430; 633 NW2d 408 (2001), we interpreted the
phrase “transaction of any business” in MCL 600.715(1), which concerns the exercise of
personal jurisdiction over nonresident corporate defendants, as follows:
“Transact” is defined as “to carry on or conduct (business, negotiations, etc.) to a
conclusion or settlement.” Random House Webster’s College Dictionary (1997).
“Business” is defined as “an occupation, profession, or trade . . . the purchase and
sale of goods in an attempt to make a profit.” Id. Our Legislature’s use of the
word “any” to define the amount of business that must be transacted establishes
that even the slightest transaction is sufficient to bring a corporation within
Michigan’s long-arm jurisdiction. See Sifers v Horen, 385 Mich. 195, 199 n 2,
188 NW2d 623 (1971) (stating that MCL 600.715(1) refers to “each” and “every”
business transaction and contemplates even “the slightest” act of business in
Michigan), and Viches v MLT, Inc., 127 F Supp 2d 828, 830 (ED Mich, 2000)
(Judge Paul Gadola stating: “The standard for deciding whether a party has
transacted any business under § 600.715[1] is extraordinarily easy to meet. ‘The
only real limitation placed on this [long arm] statute is the due process clause.’”
[citation omitted]).
Given that the phrase “transaction of any business” as used in MCL 600.705(1) is identical to the
phrase we interpreted in Oberlies, we adopt the definition set forth above in determining whether
defendant’s conduct amounted to the “transaction of any business” in the case at bar. See The
Cadle Co v Kentwood, 285 Mich. App. 240, 249; 776 NW2d 145 (2009) (“Identical terms in
different provisions of the same act should be construed identically . . . .”).
Defendant’s actions place him within the reach of MCL 600.705(1). According to the
affidavit of Katherine Welty, plaintiff’s chief risk officer, defendant submitted a loan application
to plaintiff either personally or through his Florida mortgage broker. As a result, defendant and
plaintiff entered into a 30-year contractual relationship whereby plaintiff provided defendant
with a $114,750 loan secured by a mortgage on defendant’s Florida property. During the loan
process, defendant signed multiple documents indentifying plaintiff as a Michigan business, so at
a minimum he had constructive knowledge that he was not simply doing business with a Florida
entity. Further, the promissory note expressly stated that the loan payments were to be remitted
to plaintiff’s principal place of business in Birmingham, Michigan. Although defendant
eventually finalized the loan documents outside of Michigan, we find that his actions were
sufficient to meet the test for transacting any business within the state. See MCL 600.705(1);
Oberlies, 246 Mich. App. at 430.
B. DUE PROCESS
Because the “transaction of any business” test is “extraordinarily easy to meet[,]” “[t]he
only real limitation placed on this [long arm] statute is the due process clause.” Id. (citation and
quotation omitted; alteration in original). Concerning due process, Int’l Shoe Co v Washington,
326 U.S. 310, 316; 66 S. Ct. 154; 90 L. Ed. 95 (1945), instructs that in order to subject a defendant
to personal jurisdiction, the defendant must “have certain minimum contacts with it such that the
maintenance of the suit does not offend traditional notions of fair play and substantial justice.”
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(Citation and quotation marks omitted.) “Courts employ a three-part test to determine whether a
defendant has ‘minimum contacts’ with Michigan to the extent that limited personal jurisdiction
may be exercised in accordance with due process.” Oberlies, 246 Mich. App. at 433.
First, the defendant must have purposefully availed himself of the privilege of
conducting activities in Michigan, thus invoking the benefits and protections of
this state’s laws. Second, the cause of action must arise from the defendant's
activities in the state. Third, the defendant’s activities must be substantially
connected with Michigan to make the exercise of jurisdiction over the defendant
reasonable. [Jeffrey, 448 Mich. at 186 (citation and quotation omitted).]
“ ‘[P]urposeful availment’ is something akin either to a deliberate undertaking to do or
cause an act or thing to be done in Michigan or conduct which can be properly regarded as a
prime generating cause of the effects resulting in Michigan . . . .” Aaronson v Lindsay & Hauer
Int’l Ltd, 235 Mich. App. 259, 265; 597 NW2d 227 (1999) (citation and quotation omitted;
alteration in original). The “requirement ensures that a defendant will not be haled into a
jurisdiction solely as a result of random, fortuitous, or attenuated contacts, or of the unilateral
activity of another party or a third person.” Id. (citation and quotation marks omitted). This
inquiry focuses on the defendant’s actions directed toward the forum state. Walden v Fiore, __
US __; 134 S. Ct. 1115, 1122; 188 L. Ed. 2d 12 (2014). Courts have rejected “any talismanic
jurisdictional formulas” and evaluate the facts of each case. Burger King Corp v Rudzewicz, 471
U.S. 462, 485-486; 105 S. Ct. 2174; 85 L. Ed. 2d 528 (1985). For instance, a defendant’s decision to
enter into an agreement with a plaintiff from the forum state is not, by itself, sufficient to
establish that the defendant purposefully availed himself of the protections of the forum state.
Id. at 478. Rather, jurisdiction is appropriate where defendants “purposefully ‘reach[ed] out
beyond’ their State and into another by, for example, entering a contractual relationship that
‘envisioned continuing and wide-reaching contacts’ in the forum State[.]” Walden, 134 S. Ct. at
1122, quoting Burger King Corp, 471 U.S. at 479-480. Where the defendant was a mere “passive
party” and there is no evidence that he or she was involved in negotiating the terms of the
agreement, this Court has declined to find that the defendant purposefully availed himself or
herself of an opportunity in Michigan. See Norwood Indus, Inc v Grand Blanc Printing, Inc, 219
Mich. App. 590, 593; 556 NW2d 897 (1996).
The facts in this case present a close call, but we find that defendant did not purposefully
avail himself of the benefits and protections of Michigan law. In reaching this conclusion, we
acknowledge that, pursuant to Welty’s affidavit, defendant initiated contact with plaintiff by
completing and submitting a loan application. However, we note that beyond submitting the
application, defendant’s involvement in this case was rather passive and that his contact with
Michigan was limited. For instance, plaintiff has not alleged, much less submitted documentary
evidence, that defendant engaged in any negotiations or undertook any action beyond merely
submitting the application document. Plaintiff directs our attention to the work that plaintiff
undertook in Michigan after defendant submitted the application, but plaintiff’s activities in the
forum state are not pertinent to our analysis. See Walden, 134 S. Ct. at 1122. Rather, our concern
is with defendant’s activities. Id. Where those activities were limited, we find that defendant is
more akin to a passive party, rather than a party who actively participated in negotiations. See
Norwood Indus, Inc, 219 Mich. App. at 593-594 (explaining that a passive party who merely
places an order with the plaintiff in the forum state and thereafter has no involvement has not
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purposefully availed himself of the forum state). See also Lazzaro v Charlevoix Lakes, 108 Mich
App 120, 128; 310 NW2d 295 (1981) (finding that certain defendants lacked the requisite
minimum contacts with Michigan when those defendants were merely passively involved in the
signing of the agreement at issue).
We also find that, on the facts presented, the transaction at issue was not the type of
continuing, wide-reaching contact that constitutes a purposeful availment. Cf. Burger King
Corp, 471 U.S. at 479-480. Although defendant entered into a 30-year mortgage that anticipated
monthly payments, the continued mailing of payments to the forum state does not, without more,
necessarily show purposeful availment. See Labry v Whitney Nat’l Bank, 8 So3d 1239, 1241 (Fl
App, 2009) (citation and quotation omitted) (“Signing a promissory obligation, in and of itself, is
insufficient contact to confer personal jurisdiction.”).1 See also Freudensprung v Offshore
Technical Servs, Inc, 379 F3d 327, 344 (CA 5, 2004); Ganiko v Ganiko, 826 So 2d 391, 395 (Fl
App, 2002); Federated Rural Elec Ins Corp v Inland Power & Light Co, 18 F3d 389, 395 (CA 7,
1994). The record reveals that defendant’s chief obligation was to make monthly payments to
plaintiff. As such, we distinguish the instant matter from cases where far-reaching, continuing
obligations existed. Cf. Burger King Corp, 471 U.S. at 480 (finding purposeful availment where
the contract at issue anticipated a “long-term and exacting regulation” of the defendant’s
business). Instead, we find that this case is more comparable to a “ ‘one-shot’ transaction[,]”
rather than purposeful availment. See Kerry Steel, Inc v Paragon Indus, Inc, 106 F3d 147, 151
(CA 6, 1997). Indeed, the mortgage agreement does not indicate that it was part of a larger
business opportunity or that defendant intended to enter into a business opportunity beyond the
purchase of a single property that was located outside of Michigan. See id. (finding that an
agreement was not intended to have wide-reaching effects where it was a “one-shot” transaction
and where the subject matter of the contract was not located in Michigan). Further, while not
dispositive, the fact that defendant entered into the obligations in Florida, rather than in
Michigan, and the fact that defendant’s contractual obligations pertained to property located in
Florida, can be considered in determining whether defendant purposefully availed himself of the
benefits and protections of Michigan law. See LAK, Inc v Deer Creek Enterprises, 885 F2d
1293, 1300 (CA 6, 1989) (“The place where the contractual obligation was incurred is a factor
that courts often deem important, although it cannot normally be determinative.”).
In concluding that defendant did not purposefully invoke the benefits and protections of
Michigan law, we cannot ignore the fact that the mortgage agreement at issue states that it is to
be governed by Florida law. The mortgage states, in paragraph 16, that “[t]his Security
Instrument shall be governed by federal law and the law of the jurisdiction in which the property
is located.” (Emphasis added). The mortgage recognizes that the property is located in Florida;
thus, it states that it is to be governed by Florida law. In Burger King Corp, 471 U.S. at 482, the
United States Supreme Court explained that a choice-of-law provision, while not dispositive, can
be considered in determining “whether a defendant has ‘purposefully invoked the benefits and
protections of a State’s laws’ for jurisdictional purposes.” In LAK, Inc, 885 F2d at 1295, which
1
Although decisions from other jurisdictions are not binding, we may consider them for their
persuasive value. Hiner v Mojica, 271 Mich. App. 604, 612; 722 NW2d 914 (2006).
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dealt with a one-time real estate transaction in Florida between the defendant, an Indiana
partnership, and the plaintiff, a Michigan corporation, the parties’ agreement contained a choice
of law provision stating that the agreement was to be governed by Florida law. The Sixth Circuit
concluded that this choice-of-law provision weighed against a finding that the plaintiff
purposefully availed itself of Michigan law:
A showing that [the defendant] purposefully availed itself of the benefits and
protections of Michigan law is essential to the plaintiff’s jurisdictional claim, as
we shall see, and this essential showing is not helped by the fact that the parties
chose to have the contract governed by the law of Florida, rather than the law of
Michigan. [Id. (Emphasis added.)]
Where the parties had the option to choose the law of any jurisdiction, including Michigan, as the
governing law for their agreement, the fact that they chose to govern their agreement under the
law of Florida, particularly where, as is the case here, defendant’s connection to Michigan is
attenuated, at best, we find such a choice indicative of the conclusion that defendant did not
purposefully avail himself of the benefits and protections of Michigan law. See Municipal Mtg
& Equity v Southfork Apartments Ltd Partnership, 93 F Supp 2d 622, 629 (D Md, 2000)
(explaining that, in conjunction with reasons similar to those noted above, that “the selection by
the parties, and [the defendant] in particular, of Minnesota law over Maryland law, when the
choice of Maryland law was clearly an available option, weighs heavily in favor of the
conclusion that [the defendant] did not intend to avail itself of the benefits and protections of
Maryland law.”).
In light of the facts of this case, we find that defendant’s actions were not enough to
constitute purposeful availment of the benefits and protection of Michigan law.2 As such, we
need not look at the remaining factors in a due process analysis, as each criterion is an
independent requirement. See LAK, Inc, 885 F2d at 1303. Accordingly, we affirm the result
reached by the trial court, despite the fact that, unlike the trial court, we find that defendant’s
conducted amounted to the “transaction of any business” within Michigan. Lavey v Mills, 248
Mich. App. 244, 250; 639 NW2d 261 (2001) (citation and quotation omitted; alteration in
original) (“[w]hen this Court concludes that a trial court has reached the correct result, this Court
will affirm even if it does so under alternative reasoning.”). In so concluding, we need not
address plaintiff’s assertion that the trial court abused its discretion by denying its motion for
reconsideration because the trial court incorrectly interpreted and applied the phrase “transaction
of any business” in MCL 600.705(1), as well as its assertion that plaintiff is bound by his
mortgage broker’s actions. Regardless of whether defendant or the broker contacted plaintiff, we
2
In reaching this decision, we note that the property at issue was located outside of the
jurisdiction, and note that, in cases where the property at issue is located inside the forum state,
other courts have found that the defendant purposefully availed itself of the benefits and
protections of the forum state. See, e.g., Commerce Bank & Trust v Dworman, 861 A2d 662,
664, 667 (Me, 2004); Mellon Bank (East) PSFS, Nat’l Ass’n v Farino, 960 F2d 1217, 1223 (CA
3, 1992); Alameda Nat’l Bank v Kanchanapoom, 752 F Supp 367, 369-370 (D Colo, 1990).
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find that defendant’s contacts with the forum state do not amount to a purposeful availment of
the benefits and protections of Michigan law.
Affirmed.
/s/ Cynthia Diane Stephens
/s/ Michael J. Talbot
/s/ Jane M. Beckering
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