PETER J SARKESIAN PC V MADISON CAPITAL CORPAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PETER J. SARKESIAN, P.C.,
December 15, 1998
Oakland Circuit Court
LC No. 96-513500 CK
MADISON CAPITAL CORPORATION and
Before: Smolenski, P.J., and McDonald and Doctoroff, JJ.
Plaintiff appeals as of right the trial court’s order granting summary disposition in favor of
defendant pursuant to MCR 2.116(C)(1) for lack of personal jurisdiction. We affirm.
We review the trial court’s jurisdictional rulings de novo. Jeffrey v Rapid American Corp,
448 Mich 178, 184; 529 NW2d 644 (1995). The plaintiff has the burden of establishing jurisdiction
over the defendant, but need only make a prima facie showing of jurisdiction to overcome a motion for
summary disposition. Jeffrey, supra, 448 Mich 184. The court must consider the documentary
evidence submitted by the parties, and all factual disputes must be resolved in favor of the plaintiff for
the purpose of deciding the motion. MCR 2.116(G)(5); Jeffrey, supra, 448 Mich 184.
When deciding whether the circuit court may exercise limited personal jurisdiction over
defendant, the court must consider (1) whether the defendant’s acts fall within the applicable long-arm
statute, and (2) whether the exercise of jurisdiction over the defendant comports with due process.
Starbrite Distributing, Inc v Excelda Mfg Co, 454 Mich 302, 304; 562 NW2d 640 (1997).
Michigan’s long-arm statute, MCL 600.705; MSA 27A.705, provides in pertinent part as
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 the courts of
record of this state to exercise limited personal jurisdiction over the individual and to
enable such courts to render personal judgment 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.
(2) The doing or causing any act to be done, or consequences to occur, in the
state resulting in an action for tort.
The Michigan Supreme Court has construed the statute to reach the broadest scope of
jurisdiction consistent with due process safeguards. Schnieder v Linkfield, 389 Mich 608, 616; 209
NW2d 225 (1973).
After reviewing the evidence presented, we conclude that plaintiff did not meet its burden of
establishing facts sufficient to warrant the exercise of limited personal jurisdiction over defendant.
Plaintiff is a Michigan law firm. Defendant Pondelik is a Connecticut resident and president of Madison
Capital Corporation (Madison), a Delaware corporation. Plaintiff sought damages for defendants’
alleged breach of contract regarding fees for legal services provided in Michigan with respect to the
acquisition of certain corporate assets located in Michigan. Madison’s participation in the acquisition
was evidenced by a letter of intent executed by defendant Pondelik in his capacity as a corporate officer
of Madison. The joint operating agreement and the letter of intent relied upon by plaintiff clearly indicate
that defendant Pondelik was acting as president of Madison, and on behalf of Madison, when those
documents were executed. Moreover, the retainer letter drawn up by plaintiff contradicts plaintiff's
position that the firm was retained to represent defendant Pondelik individually. The letter states that
plaintiff's services were engaged by Mario Domingo and Madison. The letter is signed by Domingo on
behalf of Madison. Defendant Pondelik is not mentioned in the letter. Defendant Pondelik's contacts
with Michigan in his capacity as president of Madison are insufficient to establish limited personal
jurisdiction over defendant individually. Accordingly, we conclude that plaintiff failed to demonstrate
that defendant Pondelik, individually, engaged in any conduct sufficient to satisfy the long-arm statute.
Furthermore, the exercise of limited personal jurisdiction over defendant does not meet the
requirements of due process. A court may not exercise limited personal jurisdiction over a non-resident
defendant “under circumstances that would offend ‘traditional notions of fair play and substantial
justice.’” Asahi Metal Industry Co, Ltd v Superior Court of California, Solana Co, 480 US 102,
113; 107 S Ct 1026; 94 L Ed 2d 92 (1987); Int’l Shoe Co v Washington, 326 US 310, 316; 66 S
Ct 154; 90 L Ed 95 (1945). The nonresident defendant must have purposefully established “minimum
contacts” with Michigan for the court to determine that the exercise of jurisdiction is fair. Jeffrey,
supra, 448 Mich 185; Comm’r of Ins v Albino, 225 Mich App 547, 559; 572 NW2d 21 (1997).
“[I]t is the relationship of the defendant, the forum, and the litigation that is significant.” Shaffer v
Heitner, 433 US 186, 204; 97 S Ct 2569; 53 L Ed 2d 683 (1977); Jeffrey, supra, 448 Mich 187.
“The defendant’s own conduct and connection with the forum must be examined in order to determine
whether the defendant should reasonably anticipate being haled into court there.” World-Wide
Volkswagen v Woodson, 444 US 286, 292; 100 S Ct 559; 62 L Ed 2d 490 (1980); Jeffrey, supra,
448 Mich 187.
Plaintiff has not presented any evidence other t an the self-serving affidavit of its principal
shareholder to indicate that defendant, individually, purposefully established minimum contacts with
Michigan. Plaintiff’s own retainer letter and itemized bill for legal services show that the firm was
retained by Madison, not by defendant individually. Moreover, there was no evidence that Mario
Domingo, who signed the retainer on behalf of Madison, had either actual or apparent authority to bind
defendant individually. Plaintiff further argues that the choice-of-law provision in the letter of intent
evidences defendant’s intent to purposefully avail himself of the privilege of conducting activities in
Michigan. The choice of law clause was expressly limited to disputes over the letter itself. Choice-of
law provisions, standing alone, are not sufficient to confer limited personal jurisdiction. Burger King
Corp v Rudzewicz, 471 US 462, 482 n 1; 105 S Ct 2174; 85 L Ed 2d 528 (1985); Starbrite, supra,
454 Mich 318 n 5. Furthermore, the letter was executed by defendant in his representative capacity
only. The letter of intent does not establish a basis for exercising jurisdiction over defendant.
Finally, plaintiff claims that defendant intentionally or negligently misrepresented his ability and
intent to pay plaintiff’s fees. This claim, however, is indistinguishable from plaintiff’s breach of contract
claim. Michigan law does not recognize a tort action for failure to pay for services rendered.
Courtright v Design Irrigation, Inc, 210 Mich App 528, 530; 534 NW2d 181 (1995).
Thus, there is no basis for extending long-arm jurisdiction under either subsection (1) or (2) of
the long-arm statute. Accordingly, the trial court did not err in granting summary disposition pursuant to
/s/ Michael R. Smolenski
/s/ Gary R. McDonald
/s/ Martin M. Doctoroff