thirteen thirty six seventy four lex on insurance company versus devon shire land development l l c oral argument not to exceed fifteen senate fifteen minutes for the appellant mr houston for the pla morning may please the court my name is james houston and i represent lax on insurance company in this matter your honour's this is a fairly straightforward personal jurisdiction matter that before you this morning respectfully the district court erred in determining that it lacked personal jurisdiction over the corporate defendant or l l c defendant in this case devon shire land development all refer that at the ts deal the throughout the argument today the court aired principally because it determined that deal they did not have sufficient contacts with ohio which was the forms they that would manifest or generate sufficient contacts to exercise personal jurisdiction that decision but opinion error for many reasons not the least of which the court unfortunately ignored the central contracts issue in this case seven specific bonds issued by my client securing the performance of construction work performed by  rules those bonds were negotiated in are they were your honor there were there were executed in all there were your honor there were seven separate bonds that the development at issue here was called queens gap it was a subdivision in north carolina b at the time the bonds were executed was principally owned by a gentleman named evan mccarthy a resident of indian hill here in cincinnati mr mccarthy and over the course of two separate years old six and zero seven secured the bonds for phase one and phase three of the project through my company locks ons in columbus based insurance broker so the bonds issue in this case we frankly we would not be in federal court to be pursuing an action against la total quality logistics an ohio court of appeals case which talks about whether there's jurisdiction when you have foreign companies that are doing business in ohio and in addition to looking to whether the contract was going go sheet in ohio it says there must be some continuing obligation that connects the nonresident defendant to the state or some terms of the agreement that affect the estate the state is that just wrong well there are two points in response that is a case that was cited by the district court i pulled in read it and i believe that the asking about that language there is that language right or wrong is wrong judge judge wright is just wrong i believe it's an error and the reason i think it's an error is that i think it misconstrues the principles that undergird the long arm statute analysis which is whether or not an entity was transacting business in ohio i think the appropriate standard is not whether there are ongoing continuous connections with the forms they but whether the minimum contact that generates so you would say just to strip away everything if two parties from foreign states meet in ohio and negotiate and sign an instrument a contract which provides for performance in another state depending on something that happens in yet a third state you would say nonetheless jurisdiction would apply to that and i'm test to sort of a simplified hypothetical you would say yes i would say a qualified yes but based on the facts of this case because i think the facts of this case i'm asking a hypothetical matter then i'm going to get the facts ok's it right you have two people who enter into a contract in ohio they sit down at a table pull out the paper write contract at the top if you in state three do x i will pay you so much money and state why that's a contract right is is that enough i think it would be i think their case that seems like a simple example hypotheticals is whether i mean whether my answer is correct in your view under the terms of the hypothetical doesn't apply to this case because the facts in this case remain straight they're correct there are significantly more contacts and i can't agree that this is a as straightforward a case as you want us to consider it i also can't agree that the district judge made all these errors that you suggest  e the claims here that your client wants to act on or for breach of contract basis to address the failure to pay the premiums on the bonds right there are two issues the  correct start it your your no you may not the argument you want us to accept is that and you said this the devon sure reached into ohio to procure the bonds if they hadn't done it there wouldn't have been any bonds there would have been any breach of the mine agreements and there would have been any litigation i think the district judge found that that's far too attenuated to construe contacts with devon sure on that contrary to your suing on with the state of ohio and i think his judgment was very well reasoned i respectfully disagree judge murphy i think if we can look at the context within which the bonds were executed that might provide provide some additional context that would provide a greater understanding of the argument that we've made the court needs to understand that when the bonds are issued and not unlike when a home is purchased you have a note in a mortgage when bonds are issued to secure the performance of construction projects anywhere in the united states ohio north carolina nevada wherever where my client lacks on issues bonds with the issuance of the bonds is the execution of an indemnity agreement that is standard so whenever a bond is pursued by an insurance company such as my client one acts not only in the bonds but on the indemnity agreements as well in this case we had indemnity ours who were located in ohio those indemnity particularly mr mccarthy was the principal member of them in charlie and of element we had a decision to make as the bonding company in pursuing not only devon charlaine development who most ok all right i respect all that let sun is a texas company principally based in tennessee if i'm correct right direction ok it seems to me i don't know what the nature of luck sounds businesses in north carolina but it seems to me that tennessee is close enough to north carolina that you could have filed a state court action easily and rutherford county and where you should be when the district court found here quite simply that there aren't enough contacts to bring you in arising from the contract to trigger the long arms respectfully judge murphy i would have been having th same argument with the owners of the fourth circuit in north carolina with relation to the doubters the standard is not whether i have to have perfect contacts or maximum contacts the question is devon charlaine development have minimum contacts with the state of ohio we believe they did both under the long arm statute and the dictates of due process for example deal d from the date it was incepted by in ohio attorney mind you it applied this is another solicitation of the benefits of this form state it applied with the ohio secretary of state to do business as an entity life's a foreign entity licensed to do business in ohio and when you look at the actual form which i did and just by way of of of discussion here i had i checked on monday they're still licensed as a foreign entity in ohio the form itself in the statute that undergirds it requires you to list the name of your entity under which you desire to transact business in ohio d l d not only filled out that form it's maintained that form for literally years and they stay provided an agent for service of process in ohio that is a direct solicitation of the benefits of ohio i think frankly it's it's an extremely close case and i i have to ask don't don't you think it comes down to the way the court construes the district courts language regarding the acts of devon mccarthy or i mean we can either there unless i'm missing something and for whatever reason the other side hasn't filed a brief there are many cases that clearly resolve those particular litigation we have to determine as a court of law whether or not the continuing obligation that the court below did not find it is present here you want us to say that there was one you discuss it with judge rogers the district court found that there wasn't i don't see any it's almost a coin flip isn't it i don't buy in the first part yes i do believe that that this court needs to go through the analysis you suggest judge murphy i respectfully do not believe it's a coin flip and here's the reason judge barrett in his decision framed the decision very much as almost a one off type of contact he focused very narrowly on a couple different points of contact the deal he had with the form state and seemed in my view and i could be wrong but seem to characterize this case one where the contacts were very attenuated that's simply not the case we lay out in an bullet point form in our brief all of the various contacts that deal they had with ohio many of them which i've already mentioned relating to the bonds deal directly with the contract issue but others don't although they don't they provide an additional factual basis rendering the exercise of personal jurisdiction here eminently appropriate they hired all those contacts were laid out similarly for judge barrett yes your honor with the contacts that don't relate expressly to the bond issue at the in this case but relate to their continuing contacts were laid out for the judge yes and i can if you like what didn't he have  i take it premier answered that this court has the benefit of more information than judge barrett judge because i believe if i gave that impression i was not right correct i was not suggesting that the judge was deprived i'm just respectfully suggesting that everything is there everything that we have he had yes mr barry thank you yes you're welcome i'm a sahm a little uncomfortable with the ex parte nature of all of this is it clear that your opposing party has notice of this appeal yes that in a lower case the land of only company d o the it was represented by counsel that can he then the counsel withdrew that's correct and oh whoever whoever is representing him we don't know who it is so he obviously doesn't know about the well district court suit or the court of appeals that i can't same judge rogers because i what i did is all i'm i'm capable of doing with in consultation with  clerk of this court i made every effort to ensure that the present owner of the entity a gentleman named keith vincent was aware of the suit of this particular appeal was served yes ma'am and that's that's all i can do i would respect disagree that this is an export a well it's not expired in a technical ethical sense but it's what we're the only not hearing the you're asking a mean if we were going to affirm i could do that comfortably because you are we here both  the i mean who knows why but it's it's it's it's not a comfortable situation for a court to rule against a party that's just not before i understand i'm sorry to interrupt judge i thought i thought they made a tactical decision not to appear because they didn't think there was any jurisdiction but you're saying that's not true to the best your no yes judge i cannot say one way or the other what why the decision not to appear was made if in fact it was an affirmative decision i just plainly don't know they did appear below and then the lawyer with the truth correct that's exactly right your reverse you're going to have to go and find them it just would have been nicer if you went and found them oh i certainly understand and i've appreciated and with regard to the level of discomfort or will discover the court may have been remanding this case i would respect suggest that there is an additional happen should we agree with it proceed then we will proceed on this is not a matter of the record but in response to your question since this has been pending for so long asking you to predict what you're going to do what i'm going to do is i'm  obligation flows from the indemnity agreements the bonds are issued in simultaneously or close to it you have parties personally we do we we do we sued mr mccarthy other indemnity that they were there has been a settlement agreement reached with at least two if not three of them so the my passion in the lower court would be principally if not only against the old the basically if over simplified you would be say you had to pay because he were the security right and now you're suing the people who cause you to have to pay under the contract and more importantly judge from our perspective not only did they cause the damage but they entered into a contract with both the two actually the bonding agreement on track the bonding the bond and the indemnity agreement where they promised us promised to hold us harmless and it would be unjust in my view two to deny is that opportunity here in this form given the nexus that we've laid out do you think that i'm sorry to prolong this but just one final question do you think the argument you're  making and is there any water to support your position that the issuance of the bonds and the sort of attenuated steps that i want through would be considered proximate cause  for the claims that you have against devon sure based on their activities in north carolina meaning could i prove in a district court that they proximate cause the damage on a breach of contract area of course yes i mean the bonds are clear  securing certain improvements in subdivision development called queens gap that were not completed we paid the money to complete that particular set of improvements and that nexus will be very easy to prove in fact i just proved it this exact same axis and summary judgment motion so it's readily done it's done frequently and i've done it as of proximate cause is one of those things that as i mentioned before there are there are cases that say this is proximate cause and this is not this this is a case where you believe there was proximate cause to create the claims judge felt there was not and you're asking us to say you're right to judge her it was wrong it's a long and short of it well with one minor clarification in my view i don't believe judge bear reached the issue of proximate cause i think he was focused exclusively on the issue of whether contacts existed under the personal jurisdiction analysis  you all right josh thanks very much have a good day