Waldman v. Levien

         [Cite as Waldman v. Levien, 

.]
                  IN THE COURT OF APPEALS
              FIRST APPELLATE DISTRICT OF OHIO
                   HAMILTON COUNTY, OHIO



 LAWRENCE WALDMAN,                                :     APPEAL NO. C-220455
                                                        TRIAL NO. A-2201022
         Plaintiff-Appellant,                     :

   vs.                                            :       O P I N I O N.

 JAN LEVIEN,                                      :

     Defendant-Appellee.                          :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: May 12, 2023




Hennis Rothstein Ellis LLP and Steven M. Rothstein, for Plaintiff-Appellant,

Keating Muething & Klekamp, Steven C. Coffaro and Paul R. Kerridge, for
Defendant-Appellee.
                     OHIO FIRST DISTRICT COURT OF APPEALS



WINKLER, Judge.
       {¶1}   Plaintiff-appellant Lawrence Waldman filed a complaint against

defendant-appellee Jan Levien for intentional infliction of emotional distress. The

trial court granted Levien’s motion to dismiss for lack of jurisdiction. Waldman now

appeals that judgment. We find no merit in his sole assignment of error, and we affirm

the trial court’s judgment.

       {¶2}   The record shows that Levien is an attorney who resides and practices

law in the state of New York. New York is the only state in which she is licensed to

practice. Waldman is an Ohio resident. In October 2014, he loaned his son David

Waldman and David’s wife $350,000 for a down payment on an apartment in New

York, which was memorialized in a promissory note signed by David and his wife.

       {¶3}   From September 28, 2021, until December 17, 2021, Levien represented

David in a divorce proceeding filed in New York. Levien stated that David was her

client and that she never represented any other member of the family.

       {¶4}   Waldman alleged that he “was in contact with [Levien] in connection

with a number of issues with respect to her representation” of David, including the

treatment of the $350,000 loan. He further alleged that in November 2021, he had a

telephone conversation with Levien, in which she stated that he “should be prepared

to abandon the loan under the theory that the funds had been ‘converted’ to marital

property and were no longer a debt of the parties because they would be needed to

sustain David’s wife after the divorce.” He added that Levien “made additional

representations of supposed [New York] law to [Waldman] … that bore no

reasonable relationship to the actual law that was applicable to the matter at hand.”

Levien denied making those statements.

       {¶5}   Waldman alleged that Levien knew or should have known that those

statements were incorrect and that telling someone that he or she had to abandon a

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                     OHIO FIRST DISTRICT COURT OF APPEALS



$350,000 debt would cause serious emotional distress.           He further alleged that

Levien’s advice to him “was either intentionally misleading” to pressure him and his

son into concessions, that it was so “recklessly made as to constitute intent, or was just

simply made without due regard for its accuracy.” Finally, he alleged that Levien’s

“advice and representations … were committed with the purpose” of injuring him,

and that Levien “should have reasonably expected that the representations would

injure him.”

       {¶6}    Levien filed a Civ.R. 12(B) motion to dismiss for lack of personal

jurisdiction in which she argued that even if Waldman’s allegations were true, he failed

to show that she had sufficient contact with the state of Ohio under Ohio’s long-arm

statute and the requirements of due process. The trial court granted Levien’s motion

to dismiss. This appeal followed.

       {¶7}    In his sole assignment of error, Waldman contends that the trial court

erred by granting Levien’s motion to dismiss. He argues that the record before the

trial court was sufficient to demonstrate long-arm jurisdiction over Levien under R.C.

2307.382(A)(6) and that jurisdiction in Ohio comported with the requirements of due

process. This assignment of error is not well taken.

       {¶8}    Personal jurisdiction is an issue of law that we review de novo.

Kauffman Racing Equip., L.L.C. v. Roberts, 

, 

, 

; Fern Exposition Servs., L.L.C. v. Lenhof, 1st Dist. Hamilton No. C-

130791, 

. When a defendant moves to dismiss a complaint for

lack of personal jurisdiction, the plaintiff bears the burden to establish that

jurisdiction is proper. Kauffman Racing Equip. at ¶ 27; Fern Exposition Servs. at ¶ 9.

When the trial court determines a Civ.R. 12(B)(2) motion to dismiss without an

evidentiary hearing, the plaintiff need only make a prima facie showing of jurisdiction.

Fraley v. Estate of Oeding, 

, 

, 

; Fern

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                     OHIO FIRST DISTRICT COURT OF APPEALS



Exposition Servs. at ¶ 9. In making its determination, the court must view allegations

in the pleadings and the documentary evidence in a light most favorable to the plaintiff

and resolve competing inferences in favor of the plaintiff. Kauffman Racing Equip. at

¶ 27; N. Am. Software, Inc. v. James I. Black & Co., 1st Dist. Hamilton No. C-100696,

.

       {¶9}   Whether an Ohio court has personal jurisdiction over a nonresident

defendant involves a two-part inquiry. First, we must determine whether Ohio’s long-

arm statute, R.C. 2307.382 and its complementary civil rule, Civ.R. 4.3(A), confer

jurisdiction. If so, we must decide whether the exercise of that jurisdiction would

violate the defendant’s due-process rights. Fern Exposition Servs. at ¶ 13; N. Am.

Software at ¶ 12.

       {¶10} Waldman relies on R.C. 2307.382(A)(6), which provides that “[a] court

may exercise personal jurisdiction over a person who acts directly or by an agent, as to

a cause of action arising from the person’s … [c]ausing tortious injury in this state

to any person by an act outside this state committed with the purpose of injuring

persons, when the person might reasonably have expected that some person would be

injured thereby in this state.” Thus, to invoke personal jurisdiction under that section,

Waldman must show that Levien caused tortious injury in Ohio and that his cause of

action arose from that tortious conduct. Fern Exposition Servs. at ¶ 14.

       {¶11} Even construing all of Waldman’s allegations as true, the conduct

alleged in the complaint does not, as a matter of law, rise to the extreme and

outrageous level necessary for a prima facie case of intentional infliction of emotional

distress. See FAP Properties XL, LLC v. Griffin, 1st Dist. Hamilton No. C-210646,

; Mann v. Cincinnati Enquirer, 1st Dist. Hamilton No. C-

090747, 

, ¶ 25-26. Waldman has failed to demonstrate that Levien

engaged in tortious activity outside Ohio or that he suffered tortious injury in Ohio as

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                     OHIO FIRST DISTRICT COURT OF APPEALS



a result. Therefore, R.C. 2307.382(A)(6) does not provide a basis for Ohio to assert

jurisdiction over Levien.

       {¶12} Also, Ohio’s assertion of jurisdiction over Levien does not comport with

the requirements of due process. The Due Process Clause imposes a limitation on the

authority of a state to assert jurisdiction over a nonresident defendant.          Fern

Exposition Servs., 1st Dist. Hamilton No. C-130791, 

, citing

Walden v. Fiore, 

, 

, 

 (2014). The United

States Supreme Court has held that a state may only assert personal jurisdiction over

a nonresident defendant if the nonresident has “certain minimum contacts with it such

that the maintenance of the suit does not offend ‘traditional notions of fair play and

substantial justice.’ ” N. Am. Software, 1st Dist. Hamilton No. C-100696, 2011-Ohio-

3376, at ¶ 20, quoting Internatl. Shoe Co. v. Washington, 

, 

, 

 (1945).

       {¶13}    A state may exercise either general or specific jurisdiction, depending

on the nature of the contacts that the defendant has with the forum state. Kauffman

Racing Equip., 

, 

, 

; N. Am.

Software at ¶ 20. General jurisdiction is proper only where a defendant’s contacts

with the forum state are of such a continuous and systemic nature that the state may

exercise personal jurisdiction over the defendant even if the action is unrelated to the

defendant’s contacts with the state. Kauffman Racing Equip. at ¶ 46; N. Am. Software

at ¶ 20. For an individual, “the paradigm form for the exercise of general jurisdiction

is the individual’s domicile[.]” Fern Exposition Servs. at ¶ 19, quoting Daimler AG v.

Bauman, 

, 

, 

 (2014). Waldman has not

alleged any facts supporting the conclusion that Levien had sufficient contact with

Ohio to render her “essentially at home” in Ohio and allow Ohio to have general

jurisdiction. See Fern Exposition Servs. at ¶ 19.

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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶14} Specific jurisdiction applies when “a State exercises jurisdiction over a

defendant in a suit arising out of or related to the defendant’s contacts with the forum.”

N. Am. Software at ¶ 20, quoting Kauffman Racing Equip. at ¶ 47. A court may

exercise specific jurisdiction over a nonresident if the defendant has “purposely

directed” his or her activities at residents of the forum state and the litigation results

from the alleged injuries that “arise out of or relate to those activities.”        Fern

Exposition Servs. at ¶ 21, quoting Burger King Corp. v. Rudzewicz, 

,

, 

 (1985). In determining whether exercising specific

jurisdiction is proper, the Ohio Supreme Court has adopted the three-part test set forth

in Southern Machine Co. v. Mahasco Industries, Inc., 

 (6th Cir.1968).

Kauffman Racing Equip. at ¶ 5o.

       {¶15} The first factor is whether the defendant purposely availed himself or

herself of the privilege of acting in the forum state or causing a consequence in the

forum state. Kauffman Racing Equip. at ¶ 51; N. Am. Software, 1st Dist. Hamilton

No. C-100696, 

. “Purposeful availment” is present when the

defendant’s contacts with the forum state “proximately result from actions by the

defendant himself that create a ‘substantial connection’ with the forum State.”

(Emphasis in original.) Kaufmann Racing Equip. at ¶ 51, quoting Burger King at 475

“The defendant’s conduct and connection to the state must be such that he ‘should

reasonably anticipate being haled into court there.’ ” 

 quoting Burger King at 474.

       {¶16} Waldman alleged that he was “in contact” with Levien regarding “a

number of issues with respect to her representation of [Waldman’s] son.” He does not

specify the nature of the contacts. He claims that the tortious injury was the result of

his phone call with Levien regarding the loan. But the use of interstate means of

communication such as the telephone or email does not, standing alone, constitute

sufficient minimum contacts to make the exercise of jurisdiction appropriate. Star

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                     OHIO FIRST DISTRICT COURT OF APPEALS



Seal of Ohio, Inc. v. Tri State Pavement Supplies, LLC, 10th Dist. Franklin No. 09AP-

969, 

, ¶ 25; Barnabas Consulting Ltd. v. Riverside Health Sys., 10th

Dist. Franklin No. 07AP-1014, 

; Lak, Inc. v. Deer Creek Ent.,

 (6th Cir.1989).

       {¶17} Waldman failed to make even a prima facie case that Levien purposely

availed herself of the privilege of acting in Ohio.         The purposeful-availment

requirement ensures that a defendant will not be haled into a jurisdiction solely

because of “random,” “fortuitous,” or “attenuated contacts” or the “unilateral activity

of another party or third person.” Kauffman Racing Equip., 

, 2010-

Ohio-2551, 

; N. Am. Software, 1st Dist. Hamilton No. C-

100696, 

.

       {¶18} The second factor is whether the cause of action arose from the

defendant’s activities in the forum state. If a defendant’s contacts with the forum state

are “related to the operative facts of the controversy, then an action will be deemed to

have arisen from those contacts.”        Kaufman Racing Equip. at ¶ 70, quoting

Compuserve, Inc. v. Patterson, 

 (6th Cir.1996). The action need not

formally arise from the defendant’s contacts with the forum. They only need to have

a substantial connection to the defendant’s in-state activities. Id.; Fern Exposition

Servs., 1st Dist. Hamilton No. C-130791, 

.             Arguably,

Waldman satisfies this requirement because the alleged cause of action did have a

substantial connection with the telephone call, but Waldman must satisfy all three

prongs of the test. See Kaufman Racing Equip. at ¶ 48; Cincinnati Equine, LLC v.

Sandringham Farm, LLC, 1st Dist. Hamilton No. C-150067, 

.

       {¶19} The third factor is whether the acts of the nonresident defendant or

consequences caused by the defendant have a substantial connection with the forum

state so as to make the exercise of jurisdiction reasonable. Kaufman Racing Equip. at

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                       OHIO FIRST DISTRICT COURT OF APPEALS



¶ 71; N. Am. Software at ¶ 25. This case presents the unusual situation where Ohio

has little interest in resolving the dispute. See Fern Exposition Servs. at ¶ 30. Due

process requires that a defendant “not be compelled to defend himself in a court of a

state with which he has no relevant connection.” Id. at 32, quoting Southern Machine,

. Levien had no relevant connection to the state of Ohio, and

Ohio’s assertion of jurisdiction would not comport with “fair play and substantial

justice.” See Burger King Corp., 

, 

, 

;

Greene v. Whiteside, 

, 

, 

 (1st

Dist.).

          {¶20} Consequently, the trial court did not err in granting Levien’s motion to

dismiss for lack of personal jurisdiction. We overrule Waldman’s assignment of error

and affirm the trial court’s judgment.

                                                                    Judgment affirmed.



BERGERON, P.J., and BOCK, J., concur.

Please note:
       The court has recorded its own entry this date.




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