Sunrise Shipping Agency, Inc. v. Universal Maritime Services, Ltd.

700 So. 2d 1135, 96 La.App. 4 Cir. 2703, 1997 La. App. LEXIS 2334, 1997 WL 607008
CourtLouisiana Court of Appeal
DecidedOctober 1, 1997
DocketNos. 96-CA-2703, 96-CA-2704
StatusPublished
Cited by4 cases

This text of 700 So. 2d 1135 (Sunrise Shipping Agency, Inc. v. Universal Maritime Services, Ltd.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Sunrise Shipping Agency, Inc. v. Universal Maritime Services, Ltd., 700 So. 2d 1135, 96 La.App. 4 Cir. 2703, 1997 La. App. LEXIS 2334, 1997 WL 607008 (La. Ct. App. 1997).

Opinion

^ARMSTRONG, Judge.

Plaintiffs, Markos Kountouroudas and Georgios Zervoudis, appeal the dismissal of their action, with prejudice, against defendant, Endeavor Overseas, S.A. (“Endeavor”), on Endeavor’s exception of lack of personal jurisdiction. We now affirm the judgment of the trial court.

Plaintiffs filed the instant suit in October, 1994, naming as defendants Endeavor, Lucas Ktistakis and Alma Shipping and Trading, S.A. (“Alma”). Plaintiffs alleged that Ktis-takis, the president and director of Endeav- or, a Panamanian corporation, delivered stock certificates representing 200 shares of Endeavor stock to Zervoudis, and 400 shares of Endeavor stock to Kountouroudas. Plaintiffs allege that Ktistakis later asked for the stock back so he could sell the principal asset of Endeavor, the M/V NIKOLAS K. He allegedly promised to give them proceeds from the sale of the vessel according to their respective percentages |2of Endeavor stock. Instead, it is alleged that Ktistakis caused Endeavor to authorize the sale of the vessel in April, 1990 for $1,640,000.00 and caused the purchase price to be paid to Alma, a Panamanian corporation plaintiffs claim was controlled by Ktistakis. The plaintiffs claim a breach of “the contractual and fiduciary obligations of defendants Ktistakis and Endeavor.”

Endeavor filed an exception of lack of personal jurisdiction which the trial court maintained. The trial court found that Endeavor had not had any contacts with Louisiana since 1990, more than four years prior to the filing of suit, that even before then the contacts were sporadic at best — the M/V NIKO-LAS K occasionally visited Louisiana. The court noted that Endeavor was not incorpo[1137]*1137rated in Louisiana, not licensed to do business in Louisiana and maintained no office in Louisiana. The court stated there was no evidence presented which established the necessary minimum contacts to invoke personal jurisdiction over Endeavor. The plaintiffs filed a motion for new trial which was denied by the court.

On appeal, plaintiffs first claim the trial court erred in failing to allow them sufficient opportunity to undertake discovery to demonstrate minimum contacts between Endeav- or and Louisiana before ruling on the defendants’ exception. Counsel on appeal, who were not representing plaintiffs at the trial court level, argue that little discovery, if any, was undertaken prior to the trial court granting Endeavor’s exception. Counsel submit that defendants insisted that discovery not be taken until the exceptions were resolved, effectively precluding plaintiffs from undertaking discovery. We reject this assignment of error for several reasons. First, plaintiffs filed a motion on February 21, 1995, to set the defendants’ declinatory and dilatory exceptions for trial. Pursuant to plaintiffs’ motion, trial |3of the exceptions was set for March 21, 1995. Plaintiffs cannot now allege the trial court heard the exceptions prematurely on January 5, 1996, after having had them set for trial as early as March 21, 1995.

Second, the record reflects that the trial court compelled the defendants to produce numerous documents sought by plaintiffs which related to Endeavor’s contacts with Louisiana. On or about February 7, 1995, plaintiffs propounded their first request for production of documents to defendants. Defendants objected to most of the plaintiffs’ requests for documents. The plaintiffs filed a motion to compel production. On June 19, 1995, the trial court ordered defendants to produce certain documents requested by the plaintiffs, including what appears to be virtually all of the documents sought which might have revealed Endeavor’s contacts with Louisiana. While defendants filed a motion for protective order as to these documents, the record does not reflect any trial court action on this motion. Presumably, the plaintiffs received these documents. Finally, there is no indication in the record that the plaintiffs ever sought more time to conduct discovery before trial of the exceptions.

Plaintiffs’ primary claim of error is that the trial court erred in finding that minimum contacts did not exist between Endeavor and Louisiana, and in using a general jurisdiction analysis instead of a specific jurisdiction analysis. Defendants make a threshold argument that because the plaintiffs did not argue specific jurisdiction at the trial court level they should not now be allowed to make this argument. We disagree. At issue was whether the evidence produced established that Louisiana courts had personal jurisdiction over Endeavor, regardless of what analysis was used to make that determination. The trial court’s factual findings are subject to the manifestly erroneous standard of appellate review. Jurisdiction itself |4is question of law subject to de novo review. Salley v. Colonial Marine Industries, Inc., 95-2215 (La.App. 4th Cir. 9/11/96), 680 So.2d 1242.

Under Louisiana’s “long-arm statute,” a Louisiana court may exercise personal jurisdiction over a nonresident defendant “on any basis ... consistent with the [U.S.] Constitution.” La. R.S. 13:3201. The exercise of personal jurisdiction requires a court to determine whether the defendant has minimum contacts with the forum state such that the maintenance of the suit will not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Lewis v. Industrial Demolishers, Inc., 96-0773, 96-0774 (La.App. 4th Cir. 10/23/96), 683 So.2d 850, writ denied, 96-2725 (La.1/6/97), 685 So.2d 116. A two-part test is employed. First, the defendant’s connections to the forum state are examined to determine whether they reach the level required for “minimum contacts;”’ then, the fairness of trying the defendant in the forum state is questioned. Lewis, supra. This two-part test applies to the analysis of both specific and general jurisdiction questions, de Reyes v. Marine Management and Consulting, Ltd., 586 So.2d 103 (La.1991). A state exercises “general jurisdiction” when the cause of action against the defendant does not arise out of the defendant’s contacts with [1138]*1138the state. A state exercises “specific jurisdiction” when the cause of action against the defendant arises out of or is related to the defendant’s contacts with the state, de Reyes, supra; Lewis, supra. The burden is on the plaintiff to show that the defendant has established the necessary minimum contacts with the forum state. Once that burden has been met, the burden shifts to the defendant to show that considerations of fair play and substantial justice render the exercise of jurisdiction unreasonable, de Reyes, supra. The general rule is that personal jurisdiction is determined as of the time |5of filing, de Reyes, supra. The allegations of a petition must be accepted as true for purposes of disposing of an exception of lack of personal jurisdiction. State ex rel. Brenner v. Noe, 186 La. 102, 171 So. 708 (1936). See also: Succession of Jeffress, 403 So.2d 821 (La. App. 2d Cir.1981).

Plaintiffs, both residents of Jefferson Parish, allege in their petition that Ktistakis was the president and a “director” of Endeavor. In his affidavit Ktistakis admits he is the president of Endeavor and a member of its board of directors. They allege Ktistakis gave them the stock in consideration for services rendered.

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700 So. 2d 1135, 96 La.App. 4 Cir. 2703, 1997 La. App. LEXIS 2334, 1997 WL 607008, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sunrise-shipping-agency-inc-v-universal-maritime-services-ltd-lactapp-1997.