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BURGGRAF SERVICES, INC. v. H2O SOLUTIONS2014 OK CIV APP 88Case Number: 112612Decided: 09/26/2014Mandate Issued: 10/27/2014DIVISION IIITHE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION III
Cite as: 2014 OK CIV APP 88, __ P.3d __

BURGGRAF SERVICES, INC., an Oklahoma Corporation, 
Plaintiff/Appellant,v.H2O SOLUTIONS, a RestorNation Company, a Texas 
Corporation d/b/a H2O SOLUTIONS; H2O SOLUTIONS, Ltd., a Texas Limited 
Partnership, also d/b/a H2O SOLUTIONS; and MATTHEW GENE BURK, 
Defendants/Appellees.
APPEAL FROM THE DISTRICT COURT OFTULSA COUNTY, OKLAHOMA
HONORABLE DANA KUEHN, TRIAL JUDGE
AFFIRMED
Oliver Smith, TAYLOR, RYAN, MINTON, VAN DALSEM & WILLIAMS, P.C., Tulsa, 
Oklahoma, for Plaintiff/Appellant,Marvin Laws, Sarah M. Brockhaus, HAYES, 
MAGRINI & GATEWOOD, Oklahoma City, Oklahoma, for Defendants/Appellees.
BRIAN JACK GOREE, Judge:
¶1 This is an appeal from the trial court's order dismissing an action for 
lack of personal jurisdiction. We affirm because the contract at issue was with 
a Texas resident, it was entered into in Texas, it was performed in Texas, and 
there were insufficient contacts with Oklahoma to create in personam 
jurisdiction. Although the contract contained a forum selection clause 
specifying Tulsa County, Oklahoma, we conclude the provision was unreasonable 
under the circumstances of the present case.
I.
Background
¶2 Burggraf Services, Inc. is a disaster restoration company. It provides 
restoration services to customers who have sustained damage to their property. 
After Hurricane Ike made landfall in 2008, Burggraf traveled to Texas and 
performed water remediation services for one of its customers. After completing 
the planned work, Burggraf contacted Matthew Burk about the possibility of 
working on a project in Houston. The nature and scope of services were discussed 
by the parties and Burggraf began setting up its drying equipment on September 
20, 2008. On September 21, 2008, Burk read and signed Burggraf's proposed 
document entitled "Work Authorization." The written agreement included a clause 
designating Tulsa County District Court as the applicable jurisdiction.
II.
Procedural History
¶3 Burggraf commenced this action in Tulsa County when it was not paid for 
its work. Initially, Burggraf sued H2O Solutions, a RestorNation Company 
("RestorNation") for breach of contract and quantum meruit. RestorNation filed a 
motion to dismiss challenging personal jurisdiction. RestorNation also alleged 
it was not the proper party, and it proposed the proper defendant was H2O 
Solutions, LTD ("H2O"). Burggraf amended its petition, adding H2O and Matthew 
Burk.
¶4 The trial court granted RestorNation's motion to dismiss by a minute order 
filed January 17, 2013. The court granted Matthew Burk's motion to dismiss by an 
order filed February 7, 2013. The court granted H2O's motion to dismiss by an 
order filed September 16, 2013. A final order was entered on February 14, 2014 
and Burggraf timely appealed the dismissals of RestorNation, H2O, and Burk 
(collectively referred to as "Defendants").
III.
Standard of Review
¶5 A defendant challenging in personam jurisdiction has the initial 
procedural burden to raise facts supporting its objection, usually by a motion 
to dismiss, with an affidavit or a statement of counsel of what the proof would 
show at an evidentiary hearing. Guffey v. Ostonakulov, 2014 OK 
6, ¶9, 321 P.3d 
971. Jurisdiction over a non-resident 
defendant cannot be inferred, but must affirmatively appear from the record, and 
the burden of proof in the trial court is upon the party asserting that 
jurisdiction exists. Guffey, 2014 OK 
6, ¶10. The determination of in 
personam jurisdiction is a legal ruling which appellate courts review de 
novo. Id. The reviewing court must canvas the record for proof that the 
nonresident party had sufficient contacts with the state to assure that 
traditional notions of fair play and substantial justice will not be offended if 
Oklahoma exercises personal jurisdiction. Id.
IV.
Analysis
¶6 Personal jurisdiction is the power to deal with 
the person of the defendant and to render a binding judgment against the 
defendant. Conoco, Inc. v. Agrico Chemical Co., 2004 OK 
83, ¶16, 115 P.3d 
829. Jurisdiction of the person is acquired 
by service of process or by voluntary appearance before the court. Id. 
Title 12 O.S. 2011 §2004(F) authorizes 
Oklahoma courts to exercise jurisdiction to the outer limits permitted by the 
Oklahoma Constitution and the Due Process Clause of the Fourteenth Amendment to 
the United States Constitution. Conoco, ¶17. Due process requires that 
the nonresident defendant's conduct and connection with the forum state are such 
that the nonresident could have reasonably anticipated being haled into court in 
that state. Conoco, ¶19, citing World-Wide Volkswagen Corporation v. 
Woodson, 444 U.S. 286, 297, 78 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980).
¶7 All elements of an enforceable contract occurred 
in Texas. Burggraf solicited Defendants in Houston, and the offer was accepted 
and fully performed there five days later. After the project was completed and 
Burggraf returned to Oklahoma, Defendants communicated with Burggraf to obtain 
documentation supporting the bill. Burggraf submitted to the court emails 
transmitted on five different dates in November and December of 2008 wherein 
Defendants requested time records, moisture documentation, and equipment lists. 
We disagree with Burggraf that Defendants' post-contract communications 
constitute sufficient minimum contacts for the Oklahoma Court to exercise in 
personam jurisdiction. Neither do we agree that Defendants could reasonably 
anticipate being haled into court in Oklahoma on the basis that they knew 
Burggraf was headquartered in Oklahoma.
¶8 The factors under consideration in this case are 
distinctly tied to Texas because of the hurricane. Burggraf has intentionally 
structured its business so that it may quickly mobilize to out-of-state 
locations whenever its services may be utilized in disaster relief. In this 
case, Burggraf loaded a substantial amount of equipment onto a semi-tractor 
trailer and traveled into Texas with a readily available work crew of more than 
a dozen employees. Burggraf offered critical services to Texas residents at the 
precise time and location needed. We conclude the agreement had no substantial 
connection with the State of Oklahoma.
¶9 Burggraf contends Oklahoma has personal 
jurisdiction because Defendants agreed to a forum selection clause specifying 
that the applicable jurisdiction is Tulsa County, Oklahoma. Even a single act 
can support jurisdiction so long as it creates a substantial connection with the 
forum state. Conoco, 2004 OK 
83, ¶19. Furthermore, personal jurisdiction 
may be waived and parties frequently stipulate in advance to submit their 
controversies for resolution within a particular jurisdiction. Burger King 
Corporation v. Rudzewicz, 471 U.S. 
462, 472, 105 Sup.Ct. 2174, 85 L.Ed.2d 528 
(1985). The contract at issue provides:


This Agreement contains the entire agreement between 
Customer and Burggraf and supersedes all prior negotiations, representations and 
agreements. It shall be governed by, and construed under, the laws of the State 
of Oklahoma. Any proceedings under, or to enforce, this Agreement shall be 
conducted in the City of Tulsa, Tulsa County, Oklahoma. Jurisdiction shall lie 
exclusively in the District Court in and for Tulsa County, 
Oklahoma.
¶10 In a majority of courts, forum selection clauses 
enjoy prima facie validity unless they are shown to be unreasonable under the 
circumstances of the particular case. Beverly Enterprises-Texas, Inc. v. 
Devine Convalescent Care Center, 2012 OK CIV APP 
16, ¶16, 273 P.3d 
890. If the forum selection clause results 
from unfair use of unequal bargaining power, it may be unenforceable. Eads v. 
Woodman of the World Life Insurance Society, 1989 OK CIV APP 
19, ¶13, 785 P.2d 
328.
¶11 On September 20, 2008, in the aftermath of a 
hurricane, Defendants accepted Burggraf's offer to immediately begin water 
remediation. That day, 14 Burggraf employees set up drying equipment. It was not 
until the next day that Burggraf presented its standard contract that included 
the forum selection clause. Defendants were faced with accepting Burggraf's 
terms and conditions, which including the forum selection clause, at a time when 
emergency services were required, had already been agreed upon, and were being 
performed. Under these particular circumstances, we conclude the forum selection 
clause was unenforceable because there is no evidence it was negotiated, and 
Defendants had relatively little bargaining power. Requiring Defendants to 
defend this case in Oklahoma under this set of facts would offend traditional 
notions of fair play and substantial justice, a fundamental standard for 
evaluating in personam jurisdiction. International Shoe Co. v. State 
of Washington, Office of Unemployment Compensation and Placement et al., 
326 U.S. 310, 316, 
66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). The trial court's order dismissing H2O 
Solutions, a RestorNation Company; H2O Solutions, LTD; and Matthew Burk is 
AFFIRMED.
BELL, P.J., and MITCHELL, J., 
concur.

Citationizer© Summary of Documents Citing This Document


Cite
Name
Level


None Found.


Citationizer: Table of Authority


Cite
Name
Level


Oklahoma Court of Civil Appeals Cases
 CiteNameLevel
 1989 OK CIV APP 19, 785 P.2d 328, 61 OBJ        257, Eads v. Woodmen of the World Life Insurance SocietyDiscussed
 2012 OK CIV APP 16, 273 P.3d 890, BEVERLY ENTERPRISES-TEXAS, INC. v. DEVINE CONVALESCENT CARE CENTERDiscussed
Oklahoma Supreme Court Cases
 CiteNameLevel
 2004 OK 83, 115 P.3d 829, CONOCO INC. v. AGRICO CHEMICAL COMPANYDiscussed at Length
 2014 OK 6, 321 P.3d 971, GUFFEY v. OSTONAKULOVDiscussed at Length
Title 12. Civil Procedure
 CiteNameLevel
 12 O.S. 2004, 12 O.S. 2004, ProcessCited













