North Pacific Steamship Co. v. Guarisco

619 P.2d 1302, 49 Or. App. 335, 1980 Ore. App. LEXIS 3713
Court of Appeals of Oregon·Decided November 17, 1980·No. No. 420-629, CA 13405·Published·Cited by 3 cases

Opinion

WARREN, J.

Plaintiff, a Liberian corporation, filed this creditor’s bill in equity in 1975 in an attempt to satisfy a postarbitration judgment in its favor obtained in Louisiana against defendant Pyramid Bulkcarriers, Inc. (PBC). That judgment awarded plaintiff damages for breach of a contract negotiated in Oregon between plaintiff and PBC, also a Liberian corporation, to charter two ships to carry bauxite from Venezuela to Louisiana and return with cargoes of wheat.

Plaintiff seeks to reach the assets and corporate opportunities of PBC that are alleged to have been wrongfully diverted by defendants Peter V. Guarisco and Donald A. Scafidi and three corporations in the Guarisco family’s corporate holdings: Hellenic, Inc.; Pyramid Bulkhandling, Inc. (PBH); and Pyramid Ventures Group, Inc. (PVG). Plaintiff claims that PBC was made insolvent by the diversions. Additionally, plaintiff asserts that Guarisco operated these corporations as his alter egos. Plaintiff also originally alleged that Guarisco, Scafidi and Hellenic participated in a fraudulent scheme from the outset of contract negotiations to avoid any liability resulting from PBC’s activities. The action for common law fraud was segregated from the trial of this case to be litigated after disposition of this equity case. The appeal in the companion law case is decided this day. North Pacific Steamship Co. v. Guarisco, (CA 13184), 49 Or App 331, 619 P2d 1306 (1980).

None of defendants were Oregon residents, or corporations qualified to do business in Oregon at the relevant times. The trial court entered judgment for plaintiff against PBH, PVG, Transbulk, Ltd. (PVG’s wholly owned subsidiary), and Hellenic. The trial court found that the corporations were not the alter egos of Guarisco, but nevertheless gave plaintiff judgment against Guarisco personally for litigation expenses incurred by defendants in defending against plaintiff’s claims. It ordered that any sum collected on the personal judgment against Guarisco was to be credited against plaintiff’s Louisiana judgment against defendant PBC. Defendants against whom judgment was entered appeal and plaintiff cross-appeals from [338]*338that judgment. We need not detail the various assignments of error on both sides, for we agree with defendants’ contention that the trial court erred in finding personal jurisdiction over defendants.

In this case neither Guarisco nor Scafidi is a natural person subject to jurisdiction under former ORS 14.010,1 and no corporate defendant is subject to jurisdiction under former ORS 14.020.2 The applicable test for determining whether personal jurisdiction arises out of certain acts in the state has two parts: (1) do the jurisdictional facts fall within the terms of former ORS 14.035; and, if so, (2) does due process permit the exercise of personal jurisdiction? State ex rel Academy Press v. Beckett, 282 Or 701, 708, 581 P2d 496 (1978). The second issue is not reached if the statutory basis for jurisdiction is lacking.

Former ORS 14.035(1)(repealed by Or Laws 1979, ch. 284, § 199) provided:

"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;
[339]*339"(c) The ownership, use or possession of any real estate situated in this state;
« * * * * * 99

Since there is no real property forming the basis of jurisdiction pursuant to Section (1)(c), personal jurisdiction in this case must be predicated on either (1)(a) or (1)(b), which we discuss in turn.

Under former ORS 14.035(l)(a), business is considered to have been transacted in Oregon for purposes of the long arm jurisdictional statute if it caused effects in the state. State ex rel Academy Press v. Beckett, supra, 282 Or at 712. "Cause of action” is defined as a "group of facts which [entitle] plaintiff to relief.” Troutman v. Erlandson, 287 Or 187, 201, 598 P2d 1211 (1979). The question here is whether the group of facts entitling plaintiff to relief in this case can be said to arise out of the transaction of business in Oregon, or to put it another way, whether the transaction of business among some of the parties which did occur in Oregon at one point, i.e., negotiation of the contract between plaintiff and PBC, can be said to give rise to plaintiff’s claim in this case.

Plaintiff’s "Second Amended Creditor’s Bill in Equity” alleged that PBC’s assets and corporate opportunities were diverted by defendants to prevent plaintiff from collecting any damages awarded against PBC for PBC’s breach of contract. None of the activities comprising the alleged diversions, however, took place in Oregon. Moreover, the corporate defendants were incorporated in Louisiana, Liberia and the Bahamas; they were not qualified to do business in Oregon and in no sense were located in Oregon when the diversions occurred.

Plaintiff was not located in Oregon either, other than through an agent corporation domesticated in Oregon. Any significant effects of defendants’ activities in diverting assets or opportunities from PBC were suffered by plaintiff, not by the agent. There were thus no economic consequences in Oregon as a result of the alleged activities, and plaintiff has not articulated any other effects. This is in contrast to State ex rel White Lbr. v. Sulmonetti, 252 Or 121, 125, 448 P2d 571 (1968), where a telephone order from out of state for the manufacture of plywood in Oregon [340]*340produced substantial business consequences in Oregon supporting the exercise of personal jurisdiction. This case is also unlike State ex rel Academy Press v. Beckett, supra, where a nonresident corporation requested that an Oregon resident perform substantial work, the revision of a literary manuscript, in Oregon. The court there found proper the exercise of personal jurisdiction. Here, no consequences of defendants’ activities were alleged or shown to have taken place in Oregon. Cf. Gardner v. Donovan, 47 Or App 97, 101, 613 P2d 1097 (1980)(nonresident director of an Oregon corporation subject to personal jurisdiction because ORS 59.115(3) rendered him vicariously liable for the acts in Oregon of the domestic corporation giving rise to alleged security violations).

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North Pacific Steamship Co. v. Guarisco, 619 P.2d 1302, 49 Or. App. 335, 1980 Ore. App. LEXIS 3713 (Or. Ct. App. 1980).

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