Simmons v. Budde

[Cite as Simmons v. Budde, 2015-Ohio-3780.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Susan E. Simmons, :
Plaintiff-Appellant, :
No. 14AP-846
v. : (C.P.C. No. 13CV-11145)
Hannah E. Budde, : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on September 17, 2015
Law Offices of Stanley B. Dritz, Stanley B. Dritz, and
D. Chadd McKitrick, for appellant.
Mazanec, Raskin & Ryder Co., L.P.A., David K. Frank, and
Douglas C. Boatright, for appellee.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Plaintiff-appellant, Susan E. Simmons, appeals the September 23, 2014
decision and entry of the Franklin County Court of Common Pleas granting the motion to
dismiss filed by defendant-appellee, Hannah E. Budde, for lack of personal jurisdiction
under Civ.R. 12(B)(2). For the following reasons, we affirm the judgment of the trial
court.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On October 9, 2008, Simmons, an Ohio resident, and her daughter, Budde,
were involved in a car accident in Missouri, during which Simmons was the passenger of a
car driven by Budde. The car, owned by Budde's father, an Ohio resident, was registered
No. 14AP-846 2
and insured in Ohio. Because she had already reserved her return flight for later that day,
Simmons returned to Ohio and alleges that she underwent medical treatment in Franklin
County for injuries related to the car accident.
{¶ 3} At the time of the accident, Budde temporarily resided in Missouri on a two-
year "Teach for America" assignment while, according to Simmons, still retaining her
Ohio voter registration and her previous residence at Simmons' home. Budde moved to
Connecticut in June 2010. While a resident of Connecticut, Budde returned to Ohio for
her July 2013 wedding and preparation activities. Simmons asserts that Budde continues
to frequently return to Ohio for holidays and visits with friends and family.
{¶ 4} On October 8, 2013, Simmons filed a complaint alleging negligence on the
part of Budde, which caused Simmons' bodily injury and resultant medical expenses,
property expenses, lost wages, pain and suffering, and loss of enjoyment of life. On
November 11, 2013, Budde filed a motion to dismiss under Civ.R. 12(B)(1) and (2) for lack
of subject-matter jurisdiction and personal jurisdiction. On December 6, 2013, Simmons
filed a memorandum contra with an attached notarized affidavit. Budde filed a reply a
few weeks later.
{¶ 5} On September 23, 2014, the trial court granted Budde's motion to dismiss
under Civ.R. 12(B)(2) for lack of personal jurisdiction. The trial court reasoned,
"[b]ecause the cause of action set forth in the plaintiff's complaint arises from the non-
resident defendant's operation of a motor vehicle in the state of Missouri, and the
plaintiff's injury did not occur in Ohio, even when viewing the facts in a light most
favorable to the plaintiff, this Court cannot exercise personal jurisdiction over the non-
resident defendant." (Sept. 23, 2014 Decision and Entry, 3.) Having determined it lacked
personal jurisdiction, the trial court did not address subject-matter jurisdiction and
dismissed the complaint without prejudice.
II. ASSIGNMENTS OF ERROR
{¶ 6} Appellant presents two assignments of error for our review:
[I.] THE TRIAL COURT ERRED IN GRANTING
APPELLEE'S MOTION TO DISMISS AS THE TRIAL COURT
HAS PERSONAL JURISDICTION OVER THE APPELLEE.
No. 14AP-846 3
[II.] THE TRIAL COURT ERRED BY DISMISSING THE
APPELLANT'S COMPLAINT WITHOUT HOLDING AN
EVIDENTIARY HEARING ON THE MATTER.
III. DISCUSSION
A. Standard of Review
{¶ 7} "Personal jurisdiction is a question of law that appellate courts review de
novo." Kauffman Racing Equip., L.L.C. v. Roberts, 126 Ohio St. 3d 81, 2010-Ohio-2551,
¶ 27. Upon a defendant's motion to dismiss, the plaintiff bears the burden of establishing
that the trial court has personal jurisdiction over the defendant. Id., citing Fallang v.
Hickey, 40 Ohio St. 3d 106, 107 (1988). If the court determines a Civ.R. 12(B)(2) motion
to dismiss without an evidentiary hearing, "the plaintiff need only establish a prima facie
showing of personal jurisdiction, which requires sufficient evidence to allow reasonable
minds to conclude that the trial court has personal jurisdiction." Austin Miller Am.
Antiques, Inc. v. Cavallaro, 10th Dist. No. 11AP-400, 2011-Ohio-6670, ¶ 7. In resolving
the motion, the court must view the allegations in the pleadings and the evidence in the
light most favorable to the plaintiff and make all reasonable inferences in the plaintiff's
favor. Kauffman Racing at ¶ 27, citing Goldstein v. Christiansen, 70 Ohio St. 3d 232
(1994).
B. First Assignment of Error
{¶ 8} As a preliminary matter, we note that in her memorandum contra to
Budde's motion to dismiss, Simmons employed the "two-step" specific personal
jurisdiction analysis for nonresidents set by the Supreme Court of Ohio in Goldstein and
more recently in Kauffman Racing at ¶ 28, and Fraley v. Estate of Oeding, 138 Ohio
St.3d 250, 2014-Ohio-452, ¶ 12.
{¶ 9} However, on appeal, Simmons continued to advance the two-step specific
personal jurisdiction analysis for nonresidents but then shifted her argument to contend,
for the first time, that Budde is actually a "resident" of Ohio subject to personal
jurisdiction under Prouse, Dash & Crouch, L.L.P. v. DiMarco, 116 Ohio St. 3d 167, 2007-
Ohio-5753, ¶ 5. Simmons also arguably1 raised for the first time on appeal, at oral
1Later in oral argument, Simmons agreed that we should use the two-step nonresident analysis in this
case.
No. 14AP-846 4
argument, the theory that Ohio courts have general personal jurisdiction over Budde
independent from the two-step specific personal jurisdiction analysis.
{¶ 10} "A party may not change its theory of the case and present new arguments
for the first time on appeal." Clifton Care Ctr. v. Ohio Dept. of Job & Family Servs., 10th
Dist. No. 12AP-709, 2013-Ohio-2742, ¶ 13. Neither may a party advance new arguments
in its reply brief or at oral argument. Id.; Andreyko v. Cincinnati, 153 Ohio App. 3d 108,
2003-Ohio-2759, ¶ 20, citing App.R. 12(A)(1)(b) and 16(A)(7). See also App.R. 21(I) ("If
counsel on oral argument intends to present authorities not cited in the brief, counsel
shall, at least five days prior to oral argument, present in writing such authorities to the
court and to opposing counsel, unless there is good cause for a later presentment.").
{¶ 11} Simmons' specific personal jurisdiction argument before the trial court gave
no indication of either the Ohio resident theory or the independent general personal
jurisdiction theory. Simmons clearly states in her memorandum contra, "[i]t is well-
established that in order to determine whether it has personal jurisdiction over a non-
resident defendant, an Ohio court must engage in a two-step analysis," cites Goldstein,
and in her due process analysis, only cites and applies the standard for specific
jurisdiction without reference to general jurisdiction or its standard. (Dec. 6, 2013
Memorandum Contra, 3.)
{¶ 12} As Simmons did not argue either the Ohio resident theory or the
independent general personal jurisdiction theory before the trial court, we decline to
address those arguments as alternative bases for personal jurisdiction in this case for the
first time. See Kauffman Racing at ¶ 46 (addressing only specific personal jurisdiction
where the plaintiff failed to allege general personal jurisdiction); Daimler AG v. Bauman,
__ U.S. __, 134 S. Ct. 746, 758 (2014) (addressing only general jurisdiction where the
plaintiff did not argue specific jurisdiction); Fraley Trucking v. Oeding, 12th Dist. No.
CA2011-09-180, 2012-Ohio-4770, ¶ 9, rev'd on other grounds, 138 Ohio St. 3d 250, 2014-
Ohio-452. Instead, we will address the theory that Simmons presented to the trial court
that "Ohio's long-arm statute and the applicable civil rule confer personal jurisdiction in
this matter, and, exercising jurisdiction under the statute and rule comports with the
defendant's due process rights." (Dec. 6, 2013 Memorandum Contra, 9.) For the reasons
below, we disagree with Simmons.
No. 14AP-846 5
{¶ 13} "Ohio's long-arm statute is not coterminous with due process." Kauffman
Racing at ¶ 45. Therefore, "[t]he determination whether an Ohio court has personal
jurisdiction over an out-of-state defendant requires a two-step inquiry." Fraley at ¶ 12.
See also Shoptaw v. I & A Auto Sales, Inc., 10th Dist. No. 12AP-453, 2012-Ohio-6259, ¶ 6.
As stated in Fraley:
First, the court must determine whether the defendant's
conduct falls within Ohio's long-arm statute or the applicable
civil rule. Kentucky Oaks Mall Co. v. Mitchell's Formal Wear,
Inc., 53 Ohio St. 3d 73, 75 (1990). If it does, then the court
must consider whether the assertion of jurisdiction over the
nonresident defendant would deprive the defendant of due
process of law under the Fourteenth Amendment to the
United States Constitution. Id.
Id. at ¶ 12.
{¶ 14} We begin with the question whether Simmons' conduct falls within Ohio's
long-arm statute, R.C. 2307.382, or complementary service rule, Civ.R. 4.3(A). Simmons
specifically contends that Budde is subject to Ohio's long-arm statute under R.C.
2307.382(A)(4), (8), and (9), and those civil rule equivalents, as well as Civ.R. 4.3(A)(1)
and (3). R.C. 2307.382, in pertinent part, provides as follows:
(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:
***
(4) Causing tortious injury in this state by an act or omission
outside this state if he regularly does or solicits business, or
engages in any other persistent course of conduct, or derives
substantial revenue from goods used or consumed or services
rendered in this state;
***
(8) Having an interest in, using, or possessing real property
in this state;
(9) Contracting to insure any person, property, or risk located
within this state at the time of contracting.
No. 14AP-846 6
***
(C) When jurisdiction over a person is based solely upon this
section, only a cause of action arising from acts enumerated in
this section may be asserted against him.
{¶ 15} The requirements for out-of-state service of process to effectuate personal
jurisdiction on nonresident defendants "mirror" the long-arm statute under these
sections. Kauffman Racing at ¶ 35. In pertinent part, Civ.R. 4.3(A) states:
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
claim that is the subject of the complaint arose, from the
person's:
(1) Transacting any business in this state;
***
(3) Causing tortious injury by an act or omission in this state,
including, but not limited to, actions arising out of the
ownership, operation, or use of a motor vehicle or aircraft in
this state;
(4) Causing tortious injury in this state by an act or omission
outside this state if the person regularly does or solicits
business, engages in any other persistent course of conduct, or
derives substantial revenue from goods used or consumed or
services rendered in this state;
***
(6) Having an interest in, using, or possessing real property in
this state;
(7) Contracting to insure any person, property, or risk located
within this state at the time of contracting.
No. 14AP-846 7
{¶ 16} Under R.C. 2307.382(A)(4) and its civil rule equivalent, an Ohio court may
exercise personal jurisdiction over a nonresident based upon an out-of-state act, but only
if the plaintiff's cause of action arises from the defendant causing tortious injury in Ohio.
In Robinson v. Koch Refining Co., 10th Dist. No. 98AP-900 (June 17, 1999), this court
analyzed whether the continuing or worsening symptoms of physical injuries which
occurred out-of-state equated to causing tortious injury in Ohio under R.C.
2307.382(A)(4). There, the plaintiff, an Ohio resident, came into contact with gas oil that
leaked through tubing he was unloading in Illinois. Upon returning home to Ohio, the
plaintiff sought medical attention and experienced additional symptoms and a worsening
of his condition. The trial court, without an evidentiary hearing, granted the defendant's
motion to dismiss due to a lack of personal jurisdiction. On appeal, the plaintiff argued
that they made a prima facie showing of personal jurisdiction by way of R.C.
2307.382(A)(4) due to the plaintiff's continuing and additional injuries in Ohio. This
court disagreed, stating:
The injury, which is the basis of the complaint, must have
occurred in Ohio to confer personal jurisdiction over an out-
of-state party under R.C. 2307.382(A)(4). * * * However, as
the trial court noted, a tortious injury is not considered to
have occurred in Ohio simply because a party continues to
suffer from the effects of the injury after returning to Ohio.
Id.
{¶ 17} As such, the court found that the plaintiff's injury did not occur in Ohio,
and, consequently, appellant failed to present a prima facie case of personal jurisdiction
under R.C. 2307.382(A)(4).
{¶ 18} Here, Simmons asserts that she sought medical treatment in Ohio and
suffered the after-effects of an injury she sustained from a car accident which
undisputedly occurred in Missouri. Under Robinson, these facts are insufficient to
establish that Simmons' cause of action arises from Budde's causing tortious injury in
Ohio. Therefore, appellant has failed to present a prima facie case of personal jurisdiction
under R.C. 2307.382(A)(4).
{¶ 19} Under R.C. 2307.382(A)(8), an Ohio court may exercise personal
jurisdiction over a nonresident who uses real property in Ohio but only if that use of
property gives rise to the cause of action. R.C. 2307.382(A)(8) and (C). See, e.g., Prouse,
No. 14AP-846 8
Dash & Crouch, L.L.P. v. DiMarco, 175 Ohio App. 3d 467, 2008-Ohio-919, ¶ 20 (8th
Dist.), appeal not accepted, 119 Ohio St. 3d 1415, 2008-Ohio-3880 (determining on
remand that the nonresident who still owned and formerly lived in an Ohio home was not
subject to personal jurisdiction in Ohio's courts under R.C. 2307.382(A) because "there is
no connection between [plaintiff's] claims and [defendant's] interest in the Ohio
property").
{¶ 20} Viewing Simmons' affidavit in a light most favorable to Simmons shows that
Budde used Simmons' Ohio home as a residence. However, since Budde's use of
Simmons' residence did not give rise to the car accident which resulted in the alleged
injuries, Simmons has failed to present prima facie evidence of personal jurisdiction
under R.C. 2307.382(A)(8).
{¶ 21} Under R.C. 2307.382(A)(9), an Ohio court may exercise personal
jurisdiction over a nonresident who contracts to insure any person, property, or risk
located within Ohio at the time of contracting. But, again, the court may only exercise
such jurisdiction if the insurance contract gives rise to the cause of action, which is against
the facts here. In addition, Simmons' affidavit does not show whether Budde insured the
car herself rather than her father, the owner of the car. Therefore, Simmons failed to
present prima facie evidence of personal jurisdiction under R.C. 2307.382(A)(9).
{¶ 22} The sections Simmons cites to under Civ.R. 4.3(A) likewise fail. Under
Civ.R. 4.3(A)(1), service of process on an out-of-state defendant is authorized where a
claim that is the subject of the complaint arose from the defendant's "[t]ransacting any
business in this state." Simmons fails to develop an argument under this section. If
Simmons intended facts regarding Budde's planning and having a wedding in Ohio to
fulfill this section, Simmons nonetheless lacks evidence showing her complaint arose from
the wedding or planning. Under Civ.R. 4.3(A)(3), service of process on an out-of-state
defendant is authorized where a claim that is the subject of the complaint arose from the
defendant's "[c]ausing tortious injury by an act or omission in this state, including, but
not limited to, actions arising out of the ownership, operation, or use of a motor vehicle
* * * in this state." Because the "act" here, the car accident, undisputedly occurred out-of-
state, Simmons cannot show personal jurisdiction through this section. Therefore,
because the enumerated sections of Civ.R. 4.3(A) are not met, the fact that Budde was
No. 14AP-846 9
served with process out-of-state nonetheless does not provide Ohio court's with personal
jurisdiction over Budde. See Green v. Huntley, 10th Dist. No. 09AP-652, 2010-Ohio-1024,
fn. 1 (noting that sufficient out-of-state service of process, the issue at bar, was a separate
issue from whether a trial court ultimately would possess personal jurisdiction).
{¶ 23} For all the above reasons, Simmons did not meet her burden of showing
Budde was subject to the personal jurisdiction of Ohio's courts under the long-arm statute
or Civ.R. 4.3. Because the first of Ohio's "two-step analysis" is not met, we do not address
whether an Ohio court's assertion of personal jurisdiction over Budde would deprive her
of due process of law. Kauffman Racing at ¶ 28; Dahlhausen v. Aldred, 187 Ohio App. 3d
536, 2010-Ohio-2172, ¶ 33 (12th Dist).
{¶ 24} Accordingly, Simmons' first assignment of error is overruled.
C. Second Assignment of Error
{¶ 25} Under her second assignment of error, Simmons contends the trial court
erred in failing to hold an evidentiary hearing before dismissing her complaint and in not
discussing in its decision and entry whether Simmons made a prima facie showing.
{¶ 26} As discussed in the first assignment of error, we agree with the trial court
that the undisputed evidence upon which Simmons relies, even when viewed in a light
most favorable to her, does not confer personal jurisdiction under Ohio's long-arm
statute and Civ.R. 4.3. As such, Simmons did not show sufficient evidence to allow
reasonable minds to conclude that the trial court has personal jurisdiction, and, therefore,
she falls short of meeting her burden of establishing a prima facie showing of personal
jurisdiction under the two-step specific jurisdiction statute.
{¶ 27} Further, Simmons offered no authority, and our independent research
found no authority, for her proposition that a court must specifically discuss the prima
facie showing. Rather, we find the lack of a prima facie showing inherent in the trial
court's conclusion that, under these facts, it "cannot exercise personal jurisdiction" over
Budde through Ohio's long-arm statute. (Sept. 23, 2014 Decision and Entry, 3.)
{¶ 28} Accordingly, for the stated reasons, appellant's second assignment of error
is overruled.
No. 14AP-846 10
IV. CONCLUSION
{¶ 29} Having overruled appellant's first and second assignments of error, we
affirm the judgment of the Franklin County Court of Common Pleas to dismiss Simmons'
complaint without prejudice.
Judgment affirmed.
BROWN, P.J., concurs.
TYACK, J., dissents.
TYACK, J., dissenting.
{¶ 30} I simply cannot agree with the majority of this panel. Therefore I dissent.
{¶ 31} As far as I can tell, on October 9, 2008, the day Susan Simmons was injured
in an automobile collision, Hannah Simmons, her mother (Susan Simmons), and
Hannah's father all were residents of the state of Ohio. The car in which the injury
occurred was owned by Hannah's father and registered in Ohio. The car was insured by
an insurance company licensed to do business in Ohio.
{¶ 32} Had Susan Simmons filed suit the day after her daughter caused her to be
injured, the issue of the jurisdiction of the Ohio courts would not have even been
discussed. I do not see how anything has occurred in the meantime to deprive the Ohio
courts of that jurisdiction.
{¶ 33} After the injury, Hannah Simmons got married here in Ohio, changed her
last name to Budde, and moved to the East Coast. She still has extensive ties to her family
and to Ohio, so there is no due process issue involved in her being sued in Ohio.
{¶ 34} There is nothing in the record before us to indicate that Hannah does not
want her mother to be compensated for the injuries Hannah caused. There is nothing in
the record to indicate that the owner of the car, Hannah's father, does not want his wife to
be compensated. The medical treatment Susan Simmons received was mostly rendered in
Ohio, so Ohio is clearly the most convenient forum to litigate the damages resulting from
the wreck.
{¶ 35} So who does not want this case to proceed? The lawyers for the insurance
company and the insurance company. The lawyers are ignoring the apparent wishes of
their client Hannah and pursuing the financial interests of the entity which is paying the
No. 14AP-846 11
lawyer fees. Situations like this are part of why the practice of law has such a bad
reputation among some United States citizens.
{¶ 36} What is the legal theory espoused by the lawyers paid by the insurance
company to thwart their client's desires and interests? The theory is that Ohio's rules of
civil procedure do not allow service of process, i.e., effective service of the court
documents on a former Ohio resident if the wreck in which she injured her mother
happened in another state. The majority of this court panel buys this theory despite what
to me is the clear wording of R.C. 2307.382(A)(4), which reads:
(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:
***
(4) Causing tortious injury in this state by an act or omission
outside this state if he regularly does or solicits business, or
engages in any other persistent course of conduct, or derives
substantial revenue from goods used or consumed or services
rendered in this state[.]
{¶ 37} Hannah Simmons, now Budde, clearly has an ongoing relationship with her
mother. In the words of the statute, Hannah engages in a persistent course of conduct
with her mother. The same phrase is present in Civ.R. 4.3(A) which allows service when
the person being sued engages in a persistent course of conduct with the person who filed
the lawsuit. Neither R.C. 2307.382 nor Civ.R. 4.3 says course of business conduct, only
course of conduct.
{¶ 38} Further, Hannah did cause tortious injury in Ohio. The physical harm
Susan Simmons initially suffered in Missouri is an ongoing situation in Ohio. The
medical bills to treat those injuries were incurred in Ohio. The pain her mother suffers is
suffered in Ohio.
{¶ 39} This is not at all the situation presented in Robinson v. Koch Refining Co.,
10th Dist. No. 98AP-900 (June 17, 1999). In the Robinson case, the harm which was
inflicted was not inflicted by a person who was an Ohio resident at the time of the injury.
No. 14AP-846 12
{¶ 40} Simply put, I believe that Ohio courts have jurisdiction under this somewhat
unique set of facts. Therefore, I would sustain the first assignment of error and order the
case remanded to the trial court for further proceedings.
______________________