[Cite as Booth v. Watershed Wellness Ctr., 2013-Ohio-5272.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY




MICHAEL BOOTH,                                         :

        Plaintiff-Appellant,                           :      CASE NO. CA2013-04-065

                                                       :           OPINION
   - vs -                                                           12/2/2013
                                                       :

THE WATERSHED WELLNESS CENTER, :

        Defendant-Appellee.                            :



            CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                              Case No. CV2012-10-3592



Jacobs, Kleinman, Seibel & McNally, Mark J. Byrne, Cincinnati Club Bldg., 30 Garfield Place,
Suite 905, Cincinnati, Ohio 45202, for plaintiff-appellant

Sebaly Shillito & Dyer, Dianne F. Marx, Erin A. Moosbrugger, 1900 Kettering Tower, 40 North
Main Street, Dayton, Ohio 45423, for defendant-appellee



        PIPER, J.

        {¶ 1} Plaintiff-appellant, Michael Booth, appeals a decision of the Butler County Court

of Common Pleas dismissing his breach of contract claim against defendant-appellee, The

Watershed Wellness Center (WWC), for lack of personal jurisdiction.

        {¶ 2} Booth, who is a resident of Butler County, Ohio, began researching the internet

for information on personal use water ionizers. As a result, he viewed several YouTube
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videos regarding water ionizers produced by WWC, which is a Michigan corporation that

specializes in selling nutritional products. Booth purchased a WWC product, and then made

a second purchase, both of which were shipped to his home address in Ohio. Ultimately,

Booth purchased enough products from WWC to personally distribute them in Ohio, though

Booth has never asserted that he shared a distribution agreement with WWC.

        {¶ 3} Booth contacted WWC via telephone and email to offer his consulting services

to the company. While WWC initially declined to employ Booth, the company eventually

agreed to review a services agreement proposed by Booth. The proposed agreement stated

that it would be governed by the "laws of the State of Michigan, USA." WWC signed the

agreement and sent it, as well as a check for $8,000, to Booth via mail. However, before

Booth received the agreement and check in the mail, WWC placed a "stop payment" on the

check and rescinded the service agreement because of a contentious conversation Booth

had with WWC.

        {¶ 4} After erroneously filing suit in the Hamilton Municipal Court, Booth ultimately

filed a breach of contract claim in the Butler County Court of Common Pleas. WWC then

filed a Civ.R. 12(B)(2) motion to dismiss for lack of personal jurisdiction in the common pleas

court, and attached an affidavit from Robert McCauley, WWC's president, in support. Booth

responded to the motion, and attached his own affidavit to the reply in opposition to WWC's

motion to dismiss. The trial court heard arguments from counsel and subsequently granted
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WWC's motion to dismiss after finding that it lacked personal jurisdiction over WWC. Booth

now appeals the trial court's decision, raising the following assignment of error.



1. According to WWC's brief, the trial court heard counsel's arguments in chambers on March 22, 2013. The
trial court made reference to an evidentiary hearing in its written decision, and applied the legal standard as if an
evidentiary hearing occurred. However, the record does not contain any indication that an evidentiary hearing
was ever held. The record indicates that the trial court held a brief status report hearing on March 22, 2013, but
there is no mention made of a "hearing" in chambers, and there is no transcript of the arguments in the file.


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        {¶ 5} THE TRIAL COURT ERRED IN GRANTING WATERSHED'S MOTION TO

DISMISS FOR LACK OF PERSONAL JURISDICTION.

        {¶ 6} Booth argues in his assignment of error that the trial court erred in granting

WWC's motion to dismiss because the court had jurisdiction via Ohio's long-arm statute and

because WWC had minimum contacts with Ohio.

        {¶ 7} An appellate court reviews de novo a trial court's judgment granting a motion to

dismiss for lack of personal jurisdiction. Buflod v. Von Wilhendorf, LLC, 12th Dist. Warren

No. CA2006-02-022, 2007-Ohio-347. Where a trial court decides a Civ.R. 12(B)(2) motion

without a hearing, a plaintiff need only make a prima facie showing of personal jurisdiction

and the trial court must view allegations in the pleadings and documentary evidence in a light

most favorable to the plaintiff, resolving all reasonable competing inferences in its favor.

Natl. City Commercial Capital Corp. v. All About Limousines Corp., 12th Dist. Butler No.

CA2005-08-226, 2009-Ohio-1159, ¶ 5. A prima facie showing is made where the plaintiff

produces sufficient evidence to allow reasonable minds to conclude that the trial court has

personal jurisdiction over the defendant. Buflod at ¶ 10.

        {¶ 8} Before a trial court may exert personal jurisdiction over a nonresident

defendant, it must complete a two-step analysis. Kentucky Oaks Mall Co. v. Mitchell's

Formal Wear, Inc., 53 Ohio St.3d 73 (1990). First, the defendant must satisfy the provisions

of Ohio's long-arm statute, R.C. 2307.382, and second, exercising jurisdiction over the

defendant must comply with due process requirements inherent in the Fourteenth
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Amendment. Id.; Dobos v. Dobos, 179 Ohio App.3d 173, 2008-Ohio-5665 (12th Dist.).

        {¶ 9} "The due process clause protects an individual's liberty interest in not being

subject to binding judgments of a forum with which that individual has established no


2. Ohio's long-arm statute, R.C. 2307.382, provides in pertinent part, that an Ohio court can exercise jurisdiction
over a corporation that transacts any business in the state.
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meaningful contacts, ties, or relations." Multiform Plastics Inc. v. Thermo Plastics Display,

Inc., 12th Dist. Clermont No. CA93-01-004, 1993 WL 257232, *1 (July 12, 1993), citing

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471, 105 S.Ct. 2174 (1985). An Ohio court

can assert jurisdiction if the nonresident defendant has certain minimum contacts with Ohio

so that having the party defend in Ohio does not offend traditional notions of fair play and

substantial justice. Internatl. Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154 (1945).

"The constitutional touchstone is whether the nonresident defendant purposely established

contacts in Ohio so that the defendant should reasonably anticipate being haled into court

there." VanCamp v. VanCamp, 12th Dist. Butler Nos. CA2001-03-058, CA2001-03-059,

CA2001-03-060, 2002 WL 4472, *4, (Dec. 31, 2001), citing Burger King Corp. Jurisdiction is

proper if the contacts proximately result from the defendant's actions that create a substantial

connection with the forum state. Burger King Corp.

         {¶ 10} The trial court found that WWC did not transact any business in Ohio, and

therefore, had not triggered Ohio's long-arm statute. While we agree with the trial court that it

did not have jurisdiction over WWC, we focus our analysis on the lack of minimum contacts

and find that WWC created no substantial connection with Ohio and did not purposely

establish contacts in Ohio so that it should reasonably anticipate being haled into an Ohio

court.

         {¶ 11} The record indicates that WWC maintains a single office in Michigan and

operates its entire business from there. WWC does not own any property in Ohio, has not

sent its representatives to Ohio for any purpose, nor has WWC participated in any trade

shows within Ohio. WWC is not registered to transact business in Ohio, and does not market

its product or advertise in Ohio.

         {¶ 12} The only way in which WWC communicated with Booth was when he contacted

the company and its representatives, which occurred via telephone or email. See Am. Office
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Services, Inc. v. Sircal Contracting, Inc., 8th Dist. Cuyahoga No. 82977, 2003-Ohio-6042, ¶

12 (noting that "who initiates the business contact is often a significant factor in determining

whether a party deliberately pursued the benefits of doing business in that state"). WWC

never solicited Booth's services, and in fact, initially turned down his business proposal. After

Booth repeatedly initiated contact with WWC, the company did consider a business

agreement with Booth, but changed its mind before following through on the agreement.

       {¶ 13} However, and as an important factor for consideration, even if WWC had

entered into a business relationship with Booth based upon the service agreement, the

agreement expressly stated that it would be governed by Michigan law. Although the parties

never had a business relationship pursuant to the agreement, the choice of law provision

nonetheless clearly indicated that WWC did not reasonably anticipate the possibility of being

haled into an Ohio court. See Buflod, 2007-Ohio-347 at ¶ 18 (noting that "though this is not a

determinative factor in a court's personal jurisdiction analysis, [the choice of law provision]

further suggests that appellees did not reasonably anticipate litigating in Ohio").

       {¶ 14} After reviewing the record, the trial court correctly dismissed Booth's claim

because it lacked jurisdiction over WWC. As such, Booth's single assignment of error is

overruled.

       {¶ 15} Judgment affirmed.


       RINGLAND, P.J., and M. POWELL, J., concur.




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