Voss v. Brown ( 2019 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
VOSS V. BROWN
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
BRITTNEY A. VOSS, APPELLANT,
V.
KENNETH H. BROWN, APPELLEE.
Filed March 5, 2019. No. A-17-1219.
Appeal from the District Court for Washington County: JOHN E. SAMSON, Judge. Affirmed.
Matthew P. Saathoff and Donald E. Loudner III, of Saathoff Law Group, P.C., L.L.O., for
appellant.
Scott D. Jochim, of Croker, Huck, Kasher, DeWitt, Anderson & Gonderinger, L.L.C., for
appellee.
MOORE, Chief Judge, and PIRTLE and ARTERBURN, Judges.
PIRTLE, Judge.
INTRODUCTION
Brittany A. Voss appeals from an order of the district court for Washington County which
sustained Kenneth H. Brown’s motion to dismiss for lack of personal jurisdiction. Based on the
reasons that follow, we affirm.
BACKGROUND
Voss filed a complaint against Brown regarding a dispute over the ownership of and
maintenance expenses for a horse named JP Skip Rusty Nail (Rusty). Voss had received the horse
from Brown approximately six years prior to the litigation and had cared for it during that time. In
her complaint, Voss brought three causes of action against Brown: a declaratory judgment action,
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a quiet title action, and an unjust enrichment/quantum merit action. At all relevant times, Voss was
a resident of Washington County, Nebraska, and Brown was a resident of Beaver Dam, Kentucky.
Brown filed a motion to dismiss the action for lack of personal jurisdiction, pursuant to
Neb. Ct. R. Pldg. § 6-1112(b)(2). An evidentiary hearing was held on the motion to dismiss, at
which time exhibits were offered into evidence and live testimony of the parties and other
witnesses was received.
The evidence showed that Voss met and began dating Brown’s grandson, Kenneth
Kellems, while Voss and Kellems were both attending Fort Scott Community College in Fort
Scott, Kansas. Voss and Kellems were both involved in the rodeo at the college. Voss and Brown
first met in the fall 2010 at Fort Scott when Brown came for a rodeo. Voss claims that Brown
learned at that time that she was from Nebraska. In 2011, Voss and Kellems visited Brown at his
farm in Kentucky and Voss was first introduced to Rusty during one of the visits.
On October 21, 2011, Brown delivered Rusty to Voss in Fort Scott, Kansas, while Voss
was still attending Fort Scott Community College. There was conflicting testimony regarding what
discussions occurred between the parties that led to Brown bringing Rusty to Voss, but the parties
do not dispute that these discussions did not take place in Nebraska. Voss testified that she did not
know Brown was bringing Rusty to Kansas until he was on his way with her. Brown testified that
the parties had an understanding that he would deliver Rusty to Voss in Kansas.
In November 2011, Voss moved Rusty to her parents’ farm in Washington County,
Nebraska, where she has remained since. Brown claimed he did not know that Voss was going to
take Rusty to Nebraska, but that when he found out he did not object to Rusty being in Nebraska.
Voss claimed that she told Brown she would move Rusty to Nebraska when he delivered Rusty to
Kansas.
Voss and Kellems both graduated from community college in December 2011 and moved
in with Voss’ parents in Nebraska. Voss claimed that Brown knew she and Kellems were moving
to Nebraska after graduation. Between March and June 2012, Voss attended mortuary school in
Indiana, and in June 2012, she and Kellems moved back in with Voss’ parents in Nebraska.
Voss and both of her parents testified that in the summer of 2012, Brown was in Nebraska
and stopped at Voss’ parents’ home for a visit. All three of them testified that Brown was in the
area because of something to do with a tractor or tractor parts. Brown and Kellems, however, both
testified that Brown never visited Voss or her parents. Brown testified that he never traveled to
Nebraska for tractor parts.
On or about July 27, 2012, Brown issued a personal check payable to Voss to reimburse
her for training costs, and instructed Kellems to give the check to Voss. Kellems took the check to
Voss’ parents’ house and left it on the counter. Voss testified that she does not remember receiving
the check and did not endorse it. Voss’ mother testified that she endorsed the check and deposited
it for Voss.
The parties also offered telephone records and testified about telephone calls made between
the parties and between Brown and Kellems. Voss testified that Brown made frequent calls to
Kellems when he was living in Nebraska, and also made calls to her in Nebraska. Brown also made
telephone calls to Voss’ parents’ landline. Voss testified that most of Brown’s telephone calls to
her, Kellems, and her parents’ landline had nothing to do with Rusty, but a few did. Brown testified
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that he would call and talk to Kellems when he lived in Nebraska and they would discuss Rusty
on occasion. He testified that he did not discuss Rusty on the telephone with Voss.
In January 2014, Voss and Kellems ended their relationship. At some point in 2015, Brown
called Voss and told her he wanted to pick up Rusty. Voss told him she was using the horse for
lessons and Brown told her to let him know when she was done with lessons, but she never called
back. On November 25, 2016, Kellems sent Voss a text message at Brown’s request, indicating
that Brown wanted Rusty back and asking when Brown could come get her. Voss responded that
Brown would have to call her if he wanted to discuss Rusty. Brown called Voss the next day and
told Voss that he wanted to come get Rusty. Voss told Brown that Rusty was not his horse; that
Brown had given it to Voss as a gift. Voss subsequently wrote Brown a letter indicating her belief
that Rusty was her horse. In late 2016, Voss received a letter from Brown’s legal counsel in
Kentucky denying that Rusty was Voss’ horse and requesting that Voss return Rusty to Brown.
Brown testified that he has traveled through Nebraska on his way to Wyoming on two
occasions, stopping once at the Cabela’s store in Sidney, Nebraska, and once at the Cabela’s store
in Kearney, Nebraska. Brown also testified that he has never done any of the following in
Nebraska: lived, owned real estate, had a bank account, paid income taxes, derived any income,
been licensed to do business, solicited or advertised any business, employed anyone or maintained
any offices, or had a telephone number.
Following the hearing on the motion to dismiss, the trial court entered an order dismissing
Voss’ complaint with prejudice for lack of personal jurisdiction over Brown. The court found that
there was no meaningful relationship between Brown, Nebraska, and the litigation. It found that
“[Brown’s] suit-related conduct did not create any meaningful contacts with Nebraska itself, and
the fact that [Voss] claims to be affected in Nebraska (because she resides there) is insufficient to
authorize personal jurisdiction over [Brown].” In addition to Brown not having sufficient
minimum contacts with Nebraska, the court found that the exercise of personal jurisdiction over
Brown would offend traditional notions of fair play and substantial justice.
ASSIGNMENTS OF ERROR
Voss assigns that the trial court erred in (1) finding that Brown lacked the necessary
contacts with the State of Nebraska; (2) finding that Brown could not reasonably anticipate being
haled into a Nebraska court based on the quality and nature of Brown’s activities; (3) failing to
find that Brown’s alleged agreement with Voss, his check payment to Voss, his demand letter to
Voss, and the frequent telephone communications between the parties established sufficient
minimum contacts with Nebraska; and (4) finding that exercising personal jurisdiction over Brown
would offend traditional notions of fair play and substantial justice.
STANDARD OF REVIEW
When a trial court relies solely on pleadings and supporting affidavits in ruling on a motion
to dismiss for want of personal jurisdiction, the plaintiff need only make a prima facie showing of
jurisdiction to survive the motion. However, if the court holds an evidentiary hearing on the issue
or decides the matter after trial, then the plaintiff bears the burden of demonstrating personal
jurisdiction by a preponderance of the evidence. RFD-TV v. WildOpenWest Finance, 288 Neb.
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318, 849 N.W.2d 107 (2014). An appellate court examines the question of whether the nonmoving
party has established a prima facie case of personal jurisdiction de novo. Id. In reviewing the grant
of a motion to dismiss, an appellate court must look at the facts in the light most favorable to the
nonmoving party and resolve all factual conflicts in favor of that party. Id.
ANALYSIS
Voss claims the trial court erred in concluding that the court lacked personal jurisdiction
over Brown. Personal jurisdiction is the power of a tribunal to subject and bind a particular person
or entity to its decisions. Hand Cut Steaks Acquisitions v. Lone Star Steakhouse, 298 Neb. 705,
905 N.W.2d 644 (2018). Before a court can exercise personal jurisdiction over a nonresident
defendant, the court must determine, first, whether the long-arm statute is satisfied and, if the
long-arm statute is satisfied, second, whether minimum contacts exist between the defendant and
the forum state for personal jurisdiction over the defendant without offending due process. Nimmer
v. Giga Entertainment Media, 298 Neb. 630, 905 N.W.2d 523 (2018).
Nebraska’s Long-Arm Statute.
Nebraska’s long-arm statute, Neb. Rev. Stat. § 25-536 (Reissue 2016), extends Nebraska’s
jurisdiction over nonresidents having any contact with or maintaining any relation to this state as
far as the U.S. Constitution permits. Nimmer v. Giga Entertainment Media, supra. It was the
intention of the Legislature to provide for the broadest allowable jurisdiction over nonresidents
under Nebraska’s long arm statute. VKGS v. Planet Bingo, 285 Neb. 599, 828 N.W.2d 168 (2013).
Thus, when a state construes its long arm statute to confer jurisdiction to the fullest extent
permitted by the Due Process Clause, the inquiry collapses into the single question of whether
jurisdiction comports with due process. Id. Therefore, the issue is whether Brown had sufficient
contacts with Nebraska so that the exercise of personal jurisdiction would not offend federal
principles of due process. See id.
Minimum Contacts.
The benchmark for determining if the exercise of personal jurisdiction satisfies due process
is whether the defendant’s minimum contacts with the forum state are such that the defendant
should reasonably anticipate being haled into court there. Nimmer v. Giga Entertainment Media,
supra. Due process for personal jurisdiction over a nonresident defendant requires that the
defendant’s minimum contacts with the forum state be such that maintenance of the suit does not
offend traditional notions of fair play and substantial justice. Id.
In analyzing personal jurisdiction, we consider the quality and type of the defendant’s
activities to decide whether the defendant has the necessary minimum contacts with the forum
state to satisfy due process. Id. Whether a forum state court has personal jurisdiction over a
nonresident defendant depends on whether the defendant’s actions created substantial connections
with the forum state, resulting in the defendant’s purposeful availment of the forum state’s benefits
and protections. Id. The “purposeful availment” 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. at 640, 905 N.W.2d at
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532-33, quoting S.L. v. Steven L., 274 Neb. 646, 653, 742 N.W.2d 734, 741 (2007). Jurisdiction is
proper, however, where the contacts proximately result from actions by the defendant himself or
herself that create a “‘substantial connection’” with the forum state. Id.
A court exercises two types of personal jurisdiction depending upon the facts and
circumstances of the case: general personal jurisdiction or specific personal jurisdiction. Nimmer
v. Giga Entertainment Media, supra. To satisfy general personal jurisdiction, the plaintiff’s claim
does not have to arise directly out of the defendant’s contacts with the forum state if the defendant
has engaged in continuous and systematic general business contacts with the forum state. Id. If the
defendant’s contacts are neither substantial nor continuous and systematic, but the cause of action
arises out of or is related to the defendant’s contact with the forum, a court may assert specific
jurisdiction over the defendant, depending on the quality and nature of such contact. Id.
Voss conceded to the trial court that the court did not have general personal jurisdiction
over Brown. Similarly, on appeal Brown only argues that there were sufficient minimum contacts
between Brown and Nebraska to meet the requirements of specific personal jurisdiction.
Accordingly, we only address whether the court had specific personal jurisdiction.
Voss’ first three assignments of error relate to the question of whether Brown had sufficient
minimum contacts with Nebraska to establish specific personal jurisdiction. She argues that the
trial court failed to reference certain contacts in its analysis and determination of whether Brown
had sufficient minimum contacts with Nebraska. Specifically, she states that the court’s analysis
failed to consider the check that Brown had delivered to Voss in Nebraska, Brown’s telephone
contact with Voss in November 2016 asserting a legal right to Rusty, and Brown’s demand letter
sent to Voss in Nebraska in late 2016 regarding Rusty. Voss further argues that when all the
evidence is considered, Brown’s suit-related conduct created a substantial connection to Nebraska
sufficient to meet the minimum contacts requirement. She claims that Brown’s alleged agreement
with Voss, the check he issued to Voss, the demand letter, and the telephone communication
between the parties established sufficient minimum contacts with Nebraska.
As the trial court noted in its order, the U.S. Supreme Court explained in Walden v. Fiore,
571 U.S. 277, 284, 134 S. Ct. 1115, 188 L. Ed. 2d 12 (2014), that the specific jurisdiction analysis
focuses “on the relationship among the defendant, the forum, and the litigation,” and “the
defendant’s suit-related conduct must create a substantial connection with the forum state.” The
relationship between a defendant and the forum State “must arise out of contacts that the
‘defendant himself’ creates with the forum State,” and those contacts must be “with the forum State
itself, not the defendant’s contacts with persons who reside there,” such as Voss. Id. at 285, quoting
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985)
(emphasis in original). “Due process requires that a defendant be haled into court in a forum State
based on his own affiliation with the State, not based on the ‘random, fortuitous, or attenuated’
contacts he makes by interacting with other persons affiliated with the State.” Walden v. Fiore,
571 U.S. at 286, quoting Burger King Corp. v. Rudzewicz, supra.
The evidence showed that Brown is a lifelong Kentucky resident. Brown testified that he
had never visited Nebraska. There was conflicting testimony as to whether Brown stopped for a
visit at Voss’ parents’ home, but as the trial court found, even if Brown did visit Nebraska, Rusty
was not the subject or the reason for his visit. Therefore, the disputed visit was irrelevant to the
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determination of personal jurisdiction; the visit was not “suit-related.” Brown admitted he had
driven through Nebraska on two occasions on his way to another destination, stopping one time at
the Cabela’s in Sidney and another time at the Cabela’s in Kearney. However, his reasons for
passing though the State and his stops were unrelated to this case.
Brown has never lived in Nebraska, he has no real estate, bank account, office, or telephone
number in Nebraska. He has not derived any income or paid income taxes in Nebraska, has never
been licensed to do business in the State, has no employees, and has not solicited or advertised any
business in Nebraska.
There was evidence of Brown having contact with Nebraska through telephone calls he
made primarily to Kellems when he lived with Voss in Nebraska, and a few calls to Voss and her
parents. The majority of these calls were personal in nature, and only a few involved any discussion
in regard to Rusty. Brown also had Kellems deliver a check to Voss in Nebraska, and sent Voss a
demand letter in Nebraska asking that she return Rusty to him. However, the only connection the
calls, check, and letter had to Nebraska was because Voss resided there. A defendant’s contacts
must be with the forum itself, not simply with persons who happen to reside there. Walden v.
Fiore, supra. In addition, the mere use of interstate facilities, such as telephones, mail, or facsimile
machines, is not enough to confer jurisdiction. Crete Carrier Corp. v. Red Food Stores, 254 Neb.
323, 576 N.W.2d 760 (1998). However, this does not mean the use of interstate communications
may not be considered in the overall analysis. See id. Mail and telephone communications sent by
the defendant into a forum may count toward the minimum contacts that support jurisdiction. Id.
Further, while there is conflicting evidence about the details of the agreement that led to
the transfer of Rusty from Brown to Voss, there is no dispute that the discussions and agreement
did not occur in Nebraska. In addition, Rusty was delivered to Voss in Kansas, where she was
going to school and living at the time.
After considering all the evidence presented to the trial court, we conclude that Brown’s
contacts with Nebraska were insufficient to meet the minimum contacts required for personal
jurisdiction. As the trial court found, the limited contacts Brown had with Nebraska were a result
of Voss being located in the state, and were not of the quality or nature necessary for the court to
exercise specific personal jurisdiction over Brown. In other words, Brown’s contacts were not with
Nebraska, but with Voss who happened to reside there. Any suit-related conduct by Brown did not
create a substantial connection with Nebraska.
Fair Play and Substantial Justice.
Voss next argues that the trial court erred in finding that exercising personal jurisdiction
over Brown would offend traditional notions of fair play and substantial justice. Once it has been
decided that a defendant purposefully established minimum contacts within the forum state, these
contacts may be considered in light of other factors to determine whether the assertion of personal
jurisdiction would comport with fair play and substantial justice. See Quality Pork Internat. v.
Rupari Food Servs., 267 Neb. 474, 675 N.W.2d 642 (2004). Having concluded that Brown did not
have the necessary minimum contacts to support the exercise of personal jurisdiction over Brown
in Nebraska, we need not determine whether the exercise of personal jurisdiction would comport
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with fair play and substantial justice. Accordingly, we do not address Voss’ final assignment of
error.
CONCLUSION
We conclude that the trial court did not err in finding that the court lacked personal
jurisdiction over Brown and, therefore, did not err in granting Brown’s motion to dismiss.
Accordingly, the order of the district court is affirmed.
AFFIRMED.
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