Dall v. Kaylor

Annotate this Case

DALL_V_KAYLOR.94-143; 163 Vt 274; 658 A.2d 78

[Filed 17-Feb-1995]

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press.

No. 94-143

Claudia R. Dall Supreme Court

On Appeal from
v. Rutland Superior Court

Georgina N. Kaylor, et al. November Term, 1994

David A. Jenkins, J.

Beth Robinson of Langrock Sperry & Wool, Middlebury, for plaintiff-appellant

Michael S. Brow and Amy E. Sylvester of Sylvester & Maley, Inc., Burlington,
for defendants- appellees

PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

MORSE, J. Plaintiff Dall appeals the trial court's dismissal of her
claim for lack of personal jurisdiction. Dall, a Vermont resident, brought
suit in Chittenden Superior Court against Maryland defendants for breach of
warranty arising from the purchase of a Hanoverian horse. Defendant Baron, a
Maryland resident and owner of the horse, hired defendants Kaylor and
Westphalian Pride Farm to sell it. Defendant Kaylor, d/b/a Westphalian Pride
Farm, is a horse breeder and trainer in Maryland. Defendant Westphalian
Pride Farm holds itself out as a breeder and developer of "world-class"
Hanoverian horses. The sole issue is whether defendants' contacts with
Vermont were sufficient to confer personal jurisdiction in Vermont. The trial
court granted defendants' motion to dismiss for lack of jurisdiction. We
reverse.

Dall read Westphalian Pride Farm's classified advertisement in a
nationally circulated publication, Chronicle of the Horse. Westphalian Pride
Farm had placed advertisements in Chronicle of the Horse over a hundred times
since 1990. In September 1992, Dall visited

Westphalian Pride Farm in Maryland to view the horses available for sale.
Upon her return to Vermont, she communicated with defendants by mail and
telephone and ultimately agreed to purchase a horse. In October 1992, Dall
mailed a check to defendants as payment for the horse. Defendant Kaylor
mailed Dall the completed bill of sale for the horse, a transfer of ownership
form and an application for membership in the American Hanoverian Society.

The horse sustained injuries during its trip to Vermont. A
veterinarian's treatment of these injuries led to the discovery that the
horse suffered from congenital and chronic bone disease in his rear legs.

Vermont's long-arm statute, 12 V.S.A. 913(b), confers jurisdiction
over nonresident defendants to the full extent permitted by the Due Process
Clause. Northern Aircraft, Inc. v. Reed, 154 Vt. 36, 40, 572 A.2d 1382, 1385
(1990); see also Reporter's Notes, V.R.C.P. 4(e) (statute allowing personal
service outside state reaches to "outer limits permitted by the due process
clause"). The Due Process Clause "protects an individual's liberty interest
in not being subject to the binding judgments" of a foreign state with which
the individual has no meaningful contacts. Burger King Corp. v. Rudzewicz ,
471 U.S. 462, 471-72 (1985). A state court may assert jurisdiction and
comport with due process where a nonresident defendant has "certain minimum
contacts with [the forum state] such that the maintenance of the suit does
not offend `traditional notions of fair play and substantial justice.'"
International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting
Milliken v. Meyer, 311 U.S. 457, 463 (1940)). The critical consideration in
determining if defendants' activities satisfy the minimum contacts
requirement is whether "the defendant's conduct and connection with the forum
State are such that [the defendant] should reasonably anticipate being haled
into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297
(1980); Northern Aircraft, 154 Vt. at 41, 572 A.2d at 1386. This
reasonableness requirement is met when the defendant purposefully directs
activity toward residents of a forum state and the litigation arises out of,
or relates to, that activity. Burger King, 471 U.S. at 472; Northern
Aircraft, 154 Vt. at 41, 572 A.2d at 1386.

The reasonableness requirement also prevents a defendant from being subjected
to jurisdiction on the basis of fortuitous, attenuated, or random contacts.
Burger King, 471 U.S. at 475; Northern Aircraft, 154 Vt. at 41-42, 572 A.2d
at ___.

Defendants argue that they did not affirmatively seek to do business
with any Vermont resident by placing classified advertisements in a
nationally circulated publication and that placement of their ad did not
establish minimum contacts with Vermont. They further argue that they did
not purposefully direct activity toward Vermont during negotiations with
Dall. Defendants rely, in part, upon Carothers v. Vogeler, 148 Vt. 316, 532 A.2d 580 (1987), in which this Court found insufficient contacts to confer
jurisdiction. In Carothers, the Vermont defendant advertised his restored
Porsche in a nationally circulated publication and subsequently sold it to
the Ohio plaintiff who had seen the advertisement. The plaintiff obtained a
judgment in Ohio. When the plaintiff sought to enforce that judgment in
Vermont, we held that because defendant's sole contact with Ohio was the
advertisement, defendant had not "avail[ed] himself of any benefit or law of
Ohio." Id. Carothers, however, involved the private sale of an automobile by
placement of a single advertisement in a nationally circulated publication.
The seller was not in the business of selling cars. Id. at 317, 532 A.2d at
580.

When, however, sellers intentionally act to advance their commercial
interest, they should reasonably anticipate being sued in Vermont if a
dispute arises from these activities. Northern Aircraft, 154 Vt. at 43, 572 A.2d at 1387. Unlike the defendant in Carothers, who did not regularly
advertise and sell cars, defendants here were in the business of selling
horses; they held themselves out as "breeder[s] and developers of world class
registered Hanoverians." Defendants initiated the resulting business
transaction by advertising, more than one hundred times, in a national market
that included Vermont.

It is hardly unfair for defendants to defend themselves in jurisdictions
where they choose to advertise their products. See Makopoulos v. Walt Disney
World, 535 A.2d 26, 27-28 (N.J. Super. App. Div. 1987) (forum state claim
resulting from New York television broadcast

received in New Jersey was "not only to be anticipated, it was predictable").
As technology and economic practices diminish the importance of geographic
boundaries, it is not unreasonable to anticipate the expansion of personal
jurisdiction to those who deliberately transcend those boundaries in pursuit
of economic gain. See id. at 28 (considering personal jurisdiction to be
function of contemporary technology and economic practice).

We hold that assertion of personal jurisdiction over defendants will not
offend "traditional notions of fair play and substantial justice." See Asahi
Metal Industry Co. v. Superior Court of California, 480 U.S. 102, 113 (1987)
(requiring consideration of interests of forum state, plaintiff's interest in
obtaining relief and burden on defendant). Vermont has a legitimate interest
in sanctioning "parties who reach out beyond one state and create continuing
relationships and obligations" with Vermont citizens for the "consequences of
their activities." Burger King, 471 U.S. at 473; see also Pasquale v.
Genovese, 136 Vt. 417, 419, 392 A.2d 395, 397 (1978) (finding it "equitable
to imply submission to jurisdiction" when defendant's conduct was
"purposefully directed toward Vermont" and inevitably affected Vermont
residents); Electronic Media Int'l v. Pioneer Communications of Am., Inc.,
586 A.2d 1256, 1259 (Me. 1991) (affording redress against nonresidents who
incur obligations to residents).

Defendants do not argue that Vermont is an inconvenient forum in which
to try Dall's claim. It is not too great a burden to defend the breach of
warranty claim here, and it may even be easier to litigate damages. See New
Bern Pool & Supply Co. v. Graubart, 381 S.E.2d 156, 160 (N.C. Ct. App. 1989)
(assertion of jurisdiction convenient when potential witnesses available in
forum state); see also Lebel v. Everglades Marina, Inc., 558 A.2d 1252, 1258
(N.J. 1989) (finding no burden on nonresident because interstate travel "not
qualitatively that different" from travel within state). The horse's
diseased condition was discovered in Vermont, and potential witnesses to the
horse's condition and expenses incurred are likely to be in Vermont.

Reversed.

FOR THE COURT:

______________________________
Associate Justice

-----------------------------------------------------------------------------
Dissenting

No. 94-143

Claudia R. Dall Supreme Court

On Appeal from
v. Rutland Superior Court

Georgina N. Kaylor, et al. November Term, 1994

David A. Jenkins, J.

Beth Robinson of Langrock Sperry & Wool, Middlebury, for plaintiff-appellant

Michael S. Brow and Amy E. Sylvester of Sylvester & Maley, Inc., Burlington,
for defendants- appellees

PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

ALLEN, C.J., dissenting. The constitutional touchstone for personal
jurisdiction is `whether the defendant purposefully established `minimum
contacts' in the forum state." Burger King Corp. v. Rudzewicz, 471 U.S. 462,
474 (1985) (quoting International Shoe v. Washington, 326 U.S. 310, 316
(1945)). Burger King further instructs that the application of the minimum
contacts rule "will vary with the quality and nature of the defendant's
activity, but it is essential in each case that there be some act by which
the defendant purposely avails itself of the privilege of conducting
activities within the forum State, thus invoking the benefits and protections
of its laws." Id. at 475 (emphasis added).

The Court added, in language appropriate to the present facts:

This `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 activities
of another party or a third person.' Jurisdiction is proper,
however, where the contacts proximately result from actions by the
defendant himself that create a `substantial connection' with the
forum State. Thus where the defendant `deliberately' has engaged
in significant activities within a State, or has created `continuing

obligations' between himself and residents of the forum, he
manifestly has availed himself of the privilege of conducting
business there, and because his activities are shielded by `the
benefits and protections' of the forum's laws it is presumptively
not unreasonable to require him to submit to the burdens of
litigation in that forum as well.

Id. at 475-76 (emphasis in original; citations omitted)

I fail to see how the placement of an advertisement in a national
publication, without more, is an act purposefully directed at Vermont. See
Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102, 112
(1987) (O'Connor, J., plurality, joined by Rehnquist, C.J., Powell, Scalia,
J.J.) (placement of product into stream of commerce without more is not an
act of defendant purposefully directed toward forum state); see also Burger
King, 471 U.S. at 476 (defendant's action must be purposefully directed at
forum state or citizens of forum state); Worldwide Volkswagen v. Woodson, 444 U.S. 286, 297 (1980) (mere foreseeability that defendant's product will be
purchased by consumer in forum state insufficient for jurisdictional
purposes). We said as much in Carothers v. Vogeler, 148 Vt. 316, 319, 532 A.2d 580, 582 (1987) (defendant did not avail himself of privileges of the
state by advertising in national publication).

The majority attempts to distinguish Carothers on grounds that the
present defendants advertised not just once, but "more than one hundred
times" in a national publication, and that the circulation of this national
publication included Vermont. We have consistently examined the quantity of
activity within Vermont as a factor in determining whether the quality and
nature of activity required to make it reasonable for a defendant to conduct
its defense in a foreign state. See id.; International Shoe Co. v.
Washington, 326 U.S. 310, 319 (1945). The frequency of an activity does not,
however, alter the nature of that conduct or convert it into conduct deemed
to be directed at the citizens or state of Vermont. As of today, national
advertising, an activity not regarded by its nature as directed at the state,
is deemed to be so because of the number of times it is repeated.

Defendants either availed themselves of the "benefits and protections"
of Vermont's laws,

or they did not. It should make no difference under the principles of Burger
King, Hanson v. Denckla, and Asahi Metal Industry Co. whether defendants
advertised once or a hundred times. The majority opinion subjects one
advertising a product in the national media to personal jurisdiction in this
state regardless of the fact that there are no other Vermont contacts. This
exercise of jurisdiction exceeds the limits imposed by the Due Process Clause
of the Fourteenth Amendment.

I am authorized to say that Justice Dooley joins in this dissent.

_______________________________________
Chief Justice

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.