Brown v. Cal Dykstra Equipment Co., Inc.

Brown v. Cal Dykstra Equipment Co., Inc. (98-425); 169 Vt. 636; 740 A.2d 793

[Filed 24-Aug-1999]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-425

                               MAY TERM, 1999


Keith E. Brown, d/b/a	               }	APPEALED FROM:
Precision Crane Service	               }
	                               }
     v.	                               }	Caledonia Superior Court
	                               }	
Cal Dykstra Equipment Company, Inc.    }
	                               }	DOCKET NO. 95-4-96 Cacv


             In the above-entitled cause, the Clerk will enter:


       This is an interlocutory appeal, pursuant to V.R.A.P. 5(b)(1), of the
  superior court's  decision to deny the motion of defendant, Cal Dykstra
  Equipment Co., to dismiss for lack of  personal jurisdiction.  Plaintiff
  Keith E. Brown, d/b/a/ Precision Crane Service, a Vermont  resident,
  brought suit against defendant, a Wisconsin corporation, for fraud stemming
  from the  sale of a crane.  Defendant moved to dismiss, arguing that its
  contacts with Vermont were  insufficient to allow jurisdiction over it in
  Vermont courts. The superior court ruled that  defendant's contacts were
  sufficient to support personal jurisdiction consistent with federal due 
  process requirements.  We affirm.
	
       Defendant sells heavy equipment and advertises in Machinery Trader, a
  national magazine.  Plaintiff, who runs a crane service, saw defendant's
  Machinery Trader advertisement listing a  particular crane for sale and
  called to purchase it.  The crane had been sold, but plaintiff asked 
  defendant to find a crane for him meeting certain specifications. 
  Defendant found a crane, and  after examining it in Wisconsin, plaintiff
  purchased it, taking delivery in New Hampshire  because he was working on a
  job there.  The crane did not meet plaintiff's needs and plaintiff  sued
  defendant in Vermont, seeking damages for breach of warranty and
  misrepresentation.

       The issue before us is whether the above facts are sufficient to
  establish long-arm  jurisdiction over defendant in Vermont. Under the
  pertinent Vermont long-arm statute, Vermont  courts have jurisdiction over
  an out-of-state corporation if it is deemed to be doing business in 
  Vermont and the proceeding arises out of the corporation's contacts with
  the state.  An out-of-state corporation is deemed to be doing business in
  Vermont if the contact with the state is  sufficient to support a Vermont
  personal judgment against it.  See 12 V.S.A. § 855.  This statute 
  "reflects a clear policy to assert jurisdiction over individual defendants
  to the full extent  permitted by the Due Process Clause."  Northern
  Aircraft v. Reed, 154 Vt. 36, 40, 572 A.2d 1382, 1385 (1990).  As a
  result, personal jurisdiction over defendant is appropriate when there  are
  "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."  Dall v. Kaylor, 163 Vt. 274, 275,  658 A.2d 78, 79 (1995)
  (quoting International Shoe v. Washington, 326 U.S. 310, 316) (internal 
  quotation marks and citation omitted).

       The argument in this case comes down to whether our decision in Dall
  v. Kaylor can be  distinguished and, if not, whether it should be
  overruled.  We agree with plaintiff that there is no  determinative
  distinction between this case and Dall.  In Dall, the plaintiff responded
  to a trade  magazine advertisement placed by the defendant, a horse
  breeding farm.  The plaintiff

 

  traveled to Maryland to view the defendant's horses and eventually
  purchased one, taking  delivery in Vermont.  As in this case, the defendant
  in Dall argued that there were insufficient  contacts with Vermont.  We
  found jurisdiction because the defendant was in the business of  selling
  horses to a national market, it reached this market through advertisement
  in a national  trade journal, and the sale at issue arose from contact made
  as a result of the advertisement.  See  id. at 276-77, 658 A.2d  at 80.

       Defendant emphasizes certain facts in this case which, it argues,
  serve to distinguish Dall.  For example, delivery of the crane in this case
  occurred in New Hampshire; delivery of the  horse in Dall occurred in
  Vermont.  The factual differences are, however, unrelated to the Dall 
  rationale.  All the facts we found determinative in Dall are present here.

       As a matter of stare decisis, we decline to reexamine Dall.  The
  decision is recent and is  based, largely, on decisions of the United
  States Supreme Court that have not been modified or  clarified since Dall
  was decided.

       Defendant further asserts that the superior court lacks general
  jurisdiction over him.  See  Helicopteros Nacionales De Colombia, S.A. v
  Hall, 466 U.S. 408, 415 (1984) (general  jurisdiction over defendant occurs
  when court exercises personal jurisdiction in suit not arising  out of
  defendant's activities in forum state but instead on sufficient contacts
  with it).  This issue  need not be addressed, however, since defendant's
  activities satisfy due process requirements that  permit the court to
  assert specific personal jurisdiction through 12 V.S.A. § 855, the long-arm 
  statute applicable to specific personal jurisdiction.  See Schwartz v.
  Frankenhoff, 10 Vt. L.W.  141, 145 n.1 (1999).


       Affirmed.	




	                               BY THE COURT:



	                               _______________________________________
	                               Jeffrey L. Amestoy, Chief Justice

	                               _______________________________________
	                               John A. Dooley, Associate Justice

	                               _______________________________________
	                               James L. Morse, Associate Justice

	                               _______________________________________
	                               Denise R. Johnson, Associate Justice

	                               _______________________________________
	                               Marilyn S. Skoglund, Associate Justice