COW, INC. v. Motor Vehicles Div., Or. Dept.

586 P.2d 107, 37 Or. App. 73, 1978 Ore. App. LEXIS 2097

Opinions

JOSEPH, J.

Plaintiff, a California corporation, appeals from a judgment dismissing its declaratory judgment action against defendant Cass, a California resident, ("defendant”) following allowance of his motion to quash service of process had in California.¹

Plaintiff alleged that as owner it lawfully came into possession of a 1966 White Freightliner truck and its certificate of title, that defendant "took” the certificate and caused it to be reissued to him by the Division, and that he claims to be the owner of the truck and refuses to acknowledge plaintiff’s ownership. Plaintiff prayed for a judgment "declaring and adjudging the rights and duties of Plaintiff and Defendants in and relative to title to said vehicles; and further declaring that Plaintiff is the true legal owners * * *.” Defendant moved to quash service. The motion was supported by his affidavit to the effect that he is a California resident, has not "engaged in the transaction of business in the State of Oregon,” was served in California, does not presently have possession of the vehicle or certain knowledge of its location, and used it when he did possess it exclusively in California. The motion was allowed.² No evidence was taken at the hearing, and we are limited to the facts pleaded or stated in the affidavit. State ex rel Advanced Dictating Supply v. Dale, 269 Or 242, 246, 524 P2d 1404 (1974).

Plaintiff maintains that the trial court had "inherent jurisdiction,” presumably under the first sentence of ORS 14.010,* *³ because, it says, the issue is "who should be certificated as the owner of a truck which is titled, registered and licensed in this state.” There is no claim that the truck is now or was in Oregon at the time defendant allegedly obtained possession of it or the former certificate of title. So the only "property” in Oregon within the meaning of the jurisdictional language is the "title,” either as an abstract concept or a record in the Division.

If an abstraction is intended, it would be synonymous with ownership; and that would beg the question. What plaintiff would do is this: It sued defendant in this state, asserting as the jurisdictional foundation that the controlling record of "title” is in the Division’s files. Because "title” can only be effectively altered by compliance with ORS 481.110(2),⁴ it follows that by bringing in the Division "title” is effectively brought within the court’s power and defendant can properly be required to defend its interests in an Oregon court. In effect, that appears to amount to a claim that property of defendant in the state has been in substance attached or sequestered and that the "title” is the subject matter of the lawsuit.

That will not wash, factually or constitutionally. Factually, a "title” out of the Division is not ownership. ORS 481.117 states in part:

"In all actions, suits or criminal proceedings when the title to, or right of possession of, any motor vehicle, trailer or semitrailer is involved, the record of registration and license, as it appears in the files and records of the division is prima facie evidence of ownership or right to possession of such vehicle. * * *”

The litigation here is a dispute about whether plaintiff or defendant is the owner of the vehicle. While that issue might be helped to resolution by possession of a valid certificate of title, it would not necessarily be resolved by a declaration of the Division’s duties. Ownership is strictly an issue only between plaintiff and defendant.

A more vital defect in plaintiff’s argument is that constitutionally Oregon cannot base its jurisdiction on the title document foundation. To allow that would be in effect to permit to be done the equivalent of what Delaware was denied the power to do in Shaffer v. Heitner, 433 US 186, 97 S Ct 2569, 53 L Ed 2d 683 (1977).

Jurisdiction in an action against non-resident defendants was asserted under a statute permitting sequestration by the state court of documents having a situs in Delaware which were evidence of defendants’ corporate ownership interests. The decision marked the one hundredth anniversary and death of the jurisdictional doctrine in Pennoyer v. Neff, 95 US 714, 24 L Ed 565 (1878), that a state could exercise jurisdiction solely on the basis of the presence of property in that state, even if the property were not itself the subject matter of the litigation. Instead, the court said,

"We conclude that all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe [Co. v. Washington, 326 US 310, 66 S Ct 154, 90 L Ed 95 (1945)], and its progeny.” 433 US at 212.

Although the present case does not involve an attachment, sequestration or analogical formality, the result is the same. By making the Division a party because it has the records, and by requesting a determination of the Division’s duties, plaintiff is attempting to put the defendant in the position of appearing generally or suffering an undefended judgment against its interests. Shaffer tells us that is not constitutional due process.

The other purported bases for jurisdiction are ORS 14.035(l)(a) and (b).⁵

In the application of the "any business” test, we recognize that "any” is meant in its "unrestricted and comprehensive sense” (Dickinson v. Leer, 255 Or 274, 276, 465 P2d 885 (1970)). Still, we are not told by the pleading that the application for a certificate of title was a business transaction, nor have we been shown any authority that even suggests that that act was one of doing business. Assuredly it was in no reasonable sense business between this plaintiff and this defendant. State ex rel White Lbr. v. Sulmonetti, 252 Or 121, 127, 448 P2d 571 (1968), supports this view.

That leaves the "commission of a tortious act within this state.” White Lbr., supra, says:

"From the * * * cases, three criteria can be said to define the present outer limits of in personam jurisdiction based on a single act: First, the defendant must purposefully avail himself of the privilege of acting in the forum state or of causing important consequences in that state. Second, the cause of action must arise from the consequences in the forum state of the defendant’s activities. Finally, the activities of the defendant or the consequences of those activities must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable. * *

Although the first criterion arguably might be satisfied in this case, the second is not. Unlike the situation in Myers, supra, n 2, where the complaint could be read to have pleaded a tort which became actionable because of acts that took place in Oregon, there is nothing in this complaint which would support a conclusion that plaintiffs cause of action arose in Oregon. The only fair reading of the complaint and the unrebutted affidavit of defendant is that the acts of taking possession of the truck and the certificate took place in California. Those acts, if they occurred and were wrongful, amounted to a completed conversion in California, which follows the common law definition that conversion is any act of dominion wrongfully exerted over another’s personal property in denial of or inconsistent with his rights therein. English v. Ralph Williams Ford, 17 Cal. App. 3d 1038, 95 Cal Rptr 501 (2d Dist 1971). Plaintiff’s argument that a "fraud” took place in this state is not well developed, and that is understandable because nothing in the complaint could be read to allege a cause of action for fraud. The "long arm” could not reach this defendant. Compare State ex rel Academy Press v. Beckett, 282 Or 701, 715-718, 581 P2d 496 (1978).⁶

Affirmed.

1

The Motor Vehicles Division ("Division”) has made no appearance in this court. As will appear, its role in the litigation was intended to be and is passive, rather like a stakeholder, but armed with a gaff hook.

2

Defendant attempted in his affidavit to raise forum non conveniens and argues that the court’s dismissal may be sustained on that ground. While a court having jurisdiction may decline to exercise it on the basis of forum non conveniens (Broderick v. Rosener, 294 US 629, 643, 55 S Ct 589, 79 L Ed 1100 (1935); Gulf Oil Co. v. Gilbert, 330 US 501, 504, 67 S Ct 839, 91 L Ed 1055 (1947)), absent jurisdiction the issue cannot be reached. Myers v. Brickwedel, 259 Or 457, 464-65, 486 P2d 1286 (1971).

3

"No natural person is subject to the jurisdiction of a court of this state, unless he appear in the court, or be found within the state, or be a resident thereof, or have property therein; and in the last case only to the extent of such property at the time the jurisdiction attached.”

4

"No registration card or number plates for any motor vehicle, trailer or semitrailer, whether original issues or duplicates, shall be issued or furnished by the division or any officer charged with such duty, unless the applicant therefor, at the same time, makes application for and is granted an official certificate of title of such vehicle, or presents satisfactory evidence that a certificate of title covering such vehicle has been previously issued to the applicant. * * *”

5

"(1) Any person, firm or corporation whether or not a citizen or a resident of this state, who, in person or through an agent, does any of the actions enumerated in this subsection, thereby submits such person and, if an individual, his personal representative to the jurisdiction of the courts of this state, as to any cause of action or suit or proceeding arising from any of the following:

"(a) The transaction of any business within this state;

"(b) The commission of a tortious act within this state * * *.”

6

The dissent, in addition to misunderstanding the tort which the plaintiff complains of, suggests that by attaching to the complaint a hotchpot of documents about a separate transaction that defendant is not even alleged to have known about, let alone have been a party to, the plaintiff can create long-arm jurisdiction. Relevant authority to support that would at least be an interesting curiosity. Like the Roc, it has never existed, so it cannot carry anything.