Barile v. University of Virginia , 2 Ohio App. 3d 233 ( 1981 )

I respectfully dissent from the majority's reasoning and conclusion in the first assignment of error. I do not believe the evidence before this court establishes facts which satisfy the test for obtaining personal jurisdiction over appellee.

Where the trial court's personal jurisdiction has been challenged, e.g., by a motion to dismiss, the burden of establishing jurisdiction rests upon the party asserting the existence of jurisdiction. This burden must be met by a primafacie showing of personal jurisdiction. See Jurko v. Jobs EuropeAgency (1975), 43 Ohio App.2d 79 [72 O.O.2d 287], paragraph two of the syllabus; Welsh v. Gibbs (C.A. 6, 1980), 631 F.2d 436, 438 [19 O.O.3d 333]. Hence, in the case sub judice appellant has the burden of making a prima facie showing that the trial court has personal jurisdiction over appellee.

In his complaint, appellant bases his claim on appellee's alleged promise to provide proper medical care for any injuries appellant received while playing football for appellee. However, appellant's complaint does not state where or when the promise was made, by whom it was made, nor does it state whether the promise was oral or written. If the promise was written, the complaint is defective under Civ. R. 10(D), which states: "When any claim or defense is founded on an account or other written instrument, a copy thereof must be attached to the pleading. If not so attached, the reason for the omission must be stated in the pleading."

If the agreement was oral, appellant failed to name an individual acting on behalf of the defendant university with whom the agreement was made. Appellant's complaint merely states, "[T]he defendant agreed * * * that he [appellant] would receive proper medical care * * *." The named defendant is the University of Virginia. It would be difficult, if not impossible, for the defendant to submit a signed rebuttal affidavit to support its motion to dismiss based upon the information supplied by appellant.

Although appellant filed an affidavit in response to appellee's motion to dismiss, he again failed to state whether the promise was oral or written, when it was made, by whom it was made and whether it was made while either party was in Ohio. A copy of the letter of intent is attached to the affidavit, but it does not include a promise to provide proper medical care. Appellant's affidavit states the application for a grant in aid and the letter of intent were signed in Ohio, but those documents do not provide the basis for appellant's claim. In fact, appellant's affidavit makes no mention whatsoever of appellee's alleged promise to provide proper medical care to appellant.

Additionally, the affidavit is defective since it is not properly certified. Affidavits used to present testimony to a court must be authenticated in the same way as a deposition. R.C.2319.04. The requirement for certifying a deposition is set forth in Civ. R. 30(F)(1):

"Upon request of any party or order of the court the officer shall transcribe the deposition. When he transcribes the deposition he shall certify on the deposition that the witnesswas fully sworn or affirmed by him and that the deposition is a true record of the testimony given by the witness. * * *" (Emphasis added.)

In the case sub judice, there is no statement certifying that the affiant was sworn by the notary. Nor does the notary certify that the affidavit was subscribed in his presence by the affiant. See Ashley v. Wright (1869), 19 Ohio St. 291, 296.

Due to the improper certification and lack of substantive averments in the affidavit, the court must rely on the unsupported allegations in the complaint. Therefore, even when viewed in a light most favorable to appellant, he has failed to sustain his burden of proof by making a prima facie showing of personal jurisdiction.

The majority concludes appellee is subject to the personal jurisdiction of the trial court under Civ. R. 4.3(A) and R.C.2307.382(A)(1) since appellee transacted business in Ohio and the cause of action arose out of such transaction. In SouthernMachine Co. v. Mohasco Industries, Inc. (C.A. 6, 1968),401 F.2d 374, 382, the court stated:

"[B]usiness is transacted in a state when obligations created by the defendant or business operations set in motion by the defendant have a realistic impact on the commerce of that state; and the defendant has purposefully availed himself of the opportunity of acting there if he should have reasonably foreseenthat the transaction would have consequences in that state." (Emphasis added.)

In the case sub judice, neither requirement is satisfied. The majority goes to great lengths to show college football is a big business and an agreement by a student to play football for a university in exchange for financial aid is governed by the law of contracts. According to the majority, the contract between the parties is a business transaction and the transaction has a realistic impact on commerce. However, the majority opinion falls short of showing the transaction has a realistic impact on commerce in Ohio as required under Southern Machine Co., supra.

The majority relies upon Garrett v. Ruth Originals Corp. (S.D. Ohio 1978), 456 F. Supp. 376 [10 O.O.3d 430]. This reliance is misplaced. In Garrett, the court, at page 381, stated:

"The performance of the contract of employment was chiefly to take place in New York, but it also required that the plaintiff leave his established position of employment and place of residence in Ohio. Such a departure would have an unavoidable impact upon the commerce of Ohio which differs in kind from the simple case where a forum resident contracts with an out of state resident to perform wholly out of state services, but the forum resident maintains his residence or place of business within the forum. In the latter case, the onlyimpact upon the state is the creation of a duty owed to one ofits residents. In the instant case, that impact exists plus the effect of the plaintiff withdrawing his human capital from the state." (Emphasis added.)

The court in Garrett clearly distinguishes the facts before it from the situation, such as in the case sub judice, where the business transaction creates an obligation or a duty without removing or creating commercial activity in Ohio. The language inGarrett limits its holding to cases where the business transaction requires an Ohio resident to leave established employment in Ohio. A realistic impact on commerce in Ohio is also made when the transaction creates commercial activity.Welsh v. Gibbs, supra.

The agreement between Barile and the University of Virginia neither removes nor creates commerce within the state of Ohio. There is no evidence in the record to indicate appellant was employed when he entered into the agreement with appellee. Appellant's fulfillment of the agreement, i.e., playing college football, was not performed in Ohio, nor is there evidence in the record to show the commercial activity which allegedly resulted had any effect on commerce in Ohio. Therefore, the first requirement set forth in Southern Machine Co., supra, is not satisfied.

Likewise, the second requirement in Southern Machine Co.,supra, is not satisfied. There is absolutely no evidence to indicate appellee should have reasonably foreseen that the transaction would have consequences in Ohio.

Therefore, since appellee neither transacted business in Ohio nor purposely availed itself of the opportunity of acting in Ohio, the trial court does not have personal jurisdiction over appellee. Since the record reveals appellant's father was present at all of the meetings between appellant and appellee's representative, and appellant's father signed the application for a grant in aid and the letter of intent, there is no reason to believe appellant needs special consideration due to his youth.

In summation, I find appellant's first assignment of error to be without merit for the following reasons:

1. The complaint does not specify whether the promise to provide proper medical care was oral or written.

2. Appellant's affidavit does not allege appellee promised to provide proper medical care.

3. Appellant's affidavit is not properly certified.

4. The alleged promise does not constitute a transaction of business in Ohio since it had no realistic impact on commerce in Ohio.

5. The alleged promise does not constitute a transaction of business in Ohio since appellee could not have reasonably foreseen consequences in Ohio.

Accordingly, appellant's first assignment of error should be overruled. I agree with the majority in its conclusion on the second assignment of error and would, therefore, affirm the holding of the trial court.