[Cite as InFrasys, Inc. v. Bros. Pavement Prods., Corp., 2020-Ohio-1157.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

 ERIE COUNTY 

InFrasys, Inc., et al. Court of Appeals No. E-19-047 

 

 Appellants Trial Court No. 2018 CV 0332 

v. 

Brothers Pavement Products, 

Corp., et al. DECISION AND JUDGMENT

Appellees Decided: March 27, 2020 

* * * * * 

 James L. Murray, Dennis E. Murray, Jr. and William H. Bartle, 

 for appellants. 

 James W. Hart and Mark P. Smith, for appellees. 

* * * * * 

 ZMUDA, P.J. 

{¶ 1} This matter is before the court on appeal from the judgment of the Erie 

County Court of Common Pleas, granting the motion to dismiss for lack of personal 
2.

jurisdiction of appellees Walsh & Hughes, Inc., dba VelveTop Products, Inc. and John B. 

Walsh. 

I. Facts and Procedural Background 

{¶ 2} Appellants, InFrasys, Inc. and ThorWorks Industries, Inc. are related 

Minnesota corporations, with their principal place of business in Erie County, Ohio. 

ThorWorks owns the SealMaster brand, and manufactures and sells seal coating products 

and equipment to SealMaster system franchises. InFrasys oversees and supports the 

franchise owners, and protects the SealMaster brand. InFrasys is the franchisor for the 

SealMaster system. 

{¶ 3} Walsh & Hughes, Inc. dba VelveTop Products, Inc. (“VelveTop”) is a New 

York corporation, with John B. Walsh as the president and owner. Brothers Pavement 

Products, Corp. (Brothers) is a New York corporation doing business with VelveTop. 

John K. Walsh and James K. Walsh are the owners/operators of Brothers. John B. Walsh 

is the father of John K. and James K. Walsh. 

{¶ 4} The facts alleged by appellants regarding appellees, relative to the issue of 

personal jurisdiction, are as follows. 

{¶ 5} In July 2007, John B. Walsh traveled to Ohio to negotiate VelveTop’s sale 

of SealMaster products to the Long Island, New York area. John B. Walsh followed up 

by phone to InFrasys in Ohio to continue negotiations, and responded to correspondence 

from InFrasys on behalf of his sons and their company, Brothers. The franchise 
3.

negotiations resulted in the Supplier Agreement between VelveTop and Brothers, and a 

Franchise Agreement between InFrasys and Brothers. 

{¶ 6} On April 11, 2008, appellee VelveTop entered into a Supplier Agreement 

with Brothers. The agreement concerned the production and supply of SealMaster 

products to VelveTop, requiring VelveTop to cease manufacture of its sealers pursuant to 

a contractual phase-in of purchasing SealMaster products from Brothers, with 100 

percent of seal coat products purchased from Brothers within three years, and 100 percent 

of asphalt emulsion sealer purchased from Brothers commencing the first day Brothers 

began manufacture of the sealants. The Supplier Agreement also expressly referenced 

the InFrasys franchise as follows: 

 4. Notwithstanding the terms and conditions of this agreement, it is 

the understanding between the respective parties that all other terms and 

conditions which would apply to market conditions, such as pricing, 

supply, need, etc. will apply and that this agreement is entered into based 

on the familial relationship between the principals of the parties to this 

agreement and as an inducement for INFRAYSIS [sic], INC. to grant its 

franchise to BROTHERS PAVEMENT PRODUCTS CORP. 

(Emphasis added.) 

{¶ 7} InFrasys and Brothers executed the InFrasys, Inc. Franchise Agreement on 

June 11, 2008. The franchise agreement recited a term of ten years, and granted Brothers 

the right to a SealMaster sales and distribution business, with additional permission to 
4.

manufacture pavement sealers marketed with the SealMaster brand. The franchise was 

exclusive within Brother’s New York territory. Pursuant to the Franchise agreement, 

InFrasys permitted Brother’s use of all SealMaster proprietary marks and copyrighted 

materials, and shared the InFrasys confidential operations manual and other confidential 

information, including processes, systems, and product specifications. 

{¶ 8} The Franchise agreement expressly referenced VelveTop in Paragraph 

XVI.H. as follows: 

 H. Special Provisions Regarding VelveTop Products, Inc. Anything 

in this Paragraph XVI. to the contrary notwithstanding, Franchisor, 

Franchisee and the individual shareholders of Franchisee (the “Individual 

Shareholders”) who are executing this Agreement (who are also deemed to 

be “Franchisees” by virtue of Paragraph XVI.B) hereby agree as follows: 

 1. Franchisor acknowledges that John B. Walsh (“John Sr.”) is the 

father of the Individual Shareholders and that he owns and operates a 

business by the name of VelveTop Products, Inc. (“VelveTop”), which will 

be in direct competition with the franchised Business after commencement 

of the terms of this Agreement. 

 2. Franchisor agrees that VelveTop and John Sr. may continue their 

current business under the terms of a Supplier Agreement with Franchisee, 
5.

a copy of which is attached as Exhibit C.1

 The Supplier Agreement shall 

continue in force between the parties thereto through the term of this 

Agreement and may not be amended without prior consent of Franchisor. 

Franchisor further agrees that the Supplier Agreement may be assigned at 

the time of any sale of VelveTop. As referenced in the Supplier 

Agreement, Franchisor defines DECO SURFACING PRODUCTS to be 

any product in direct competition with the Franchisor’s SportMaster brand. 

{¶ 9} The Franchise Agreement contained a choice of law and venue clause, 

requiring Ohio law and jurisdiction in Erie County, Ohio, with a waiver of personal 

jurisdiction in Paragraph XXIX.B. Both John K. and James K. Walsh executed the 

Agreement on behalf of Brothers. 

{¶ 10} On February 6, 2018, appellants terminated the franchise of Brothers 

alleging numerous breaches of the Franchise Agreement, including the failure to enforce 

the terms of the Supplier Agreement between VelveTop and Brothers. On June 14, 2018, 

appellants filed a complaint in Erie County Common Pleas Court, alleging breach of the 

Franchise Agreement and Supplier Agreement, and seeking monetary and injunctive 

relief. As to VelveTop and John B. Walsh, appellants alleged tortious interference with a 

business/contractual relationship, and claimed VelveTop failed to comply with the 

 

1

 Exhibit A delineated the geographical territory for the franchise of Brothers, and Exhibit 

B contained personal guaranties and assumptions of obligations by John K. and James K. 

Walsh, each owning 50 percent in Brothers. 
6.

phase-in periods in the Supplier Agreement and continued to manufacture its own sealers. 

Appellants further alleged that Brothers sold “ingredients” for this unauthorized 

manufacture rather than the finished product. 

{¶ 11} Appellants alleged that ThorWorks is an intended third-party beneficiary of 

the Franchise Agreement and Supplier Agreement, and InFrasys is an intended thirdparty beneficiary of the Supplier Agreement. 

{¶ 12} After extensions, discovery disputes, and limited discovery regarding the 

issue of jurisdiction, VelveTop and John B. Walsh filed a motion to dismiss, alleging lack 

of personal jurisdiction. InFrasys and ThorWorks opposed dismissal. They alleged John 

B. Walsh controlled the negotiations for both VelveTop and his sons’ company, Brothers, 

traveled to Ohio for initial negotiations, called InFrasys in Ohio for continued 

negotiations, and sent his VelveTop trucks to ThorWorks in Sandusky, Ohio, to pick up 

SealMaster materials and products. 

{¶ 13} While apparently acknowledging John B. Walsh’s participation in

negotiations and his visit to Sandusky in 2007, appellees argued that they never had an 

intention to enter into any agreement with appellants, and lacked the necessary contact 

with the forum state to permit an exercise of personal jurisdiction. 

{¶ 14} The trial court determined the motion based on the memoranda, affidavits 

and deposition transcripts submitted in support.2

 The trial court noted the applicable 

 

2

 The record on appeal does not include the deposition transcripts. 
7.

standard in ruling without hearing, that appellants need only make “a prima facie 

showing of jurisdiction” to survive the motion to dismiss. In applying the standard under 

R.C. 2307.382 and Civ.R. 4.3(A)(1), the trial court determined that appellants satisfied 

the first prong of the Goldstein test, finding an exercise of personal jurisdiction proper 

under the long-arm statute and applicable civil rule based on Goldstein v. Christianson,

70 Ohio St.3d 232, 235-236, 638 N.E.2d 541 (1994). As to the second prong, however, 

in applying the three-part test for due process, the trial court found that VelveTop and 

John B. Walsh had the required minimum contacts and caused injury within the forum 

state. The court determined, however, that the exercise of personal jurisdiction would be 

unreasonable and deprive VelveTop and John B. Walsh of due process. 

{¶ 15} As to this third factor of the due process analysis, the trial court found the 

lack of evidence regarding frequency of travel to the ThorWorks site by VelveTop trucks 

weighed against personal jurisdiction. The trial court, furthermore, noted that VelveTop 

and John B. Walsh executed the Supplier Agreement two months prior to execution of 

the Franchise Agreement, and made no mention of any connection between the two 

agreements, as alleged by appellants. 

{¶ 16} The trial court granted dismissal of VelveTop and John B. Walsh for want 

of personal jurisdiction, and entered a finding of no just cause for delay. In a subsequent 

“Nunc Pro Tunc” entry, the trial court sua sponte revised its judgment, striking the final 

appealable language from the dismissal judgment entry. After appellants moved to 
8.

reinsert the final appealable language, the trial court did so, finding the dismissal 

judgment entry to be final and appealable once more. 

II. Assignments of Error 

{¶ 17} InFrasys and ThorWorks now appeal the dismissal, asserting the following 

assignments of error: 

 1. The Trial Court Erred in Granting Defendants, Walsh & Hughes, 

Inc., dba VelveTop Products, Inc. and John B. Walsh’s Motion to Dismiss 

Plaintiffs’ Complaint for Lack of Personal Jurisdiction. 

 2. The Trial Court Erred in Removing, Via its 8-13-2019 Nunc Pro 

Tunc Judgment Entry, the Civil Rule 54(B) Certification Included in its 

Initial Judgment Entry of 8-7-2019. The 8-7-2019 Judgment Entry 

Granting Defendants, Walsh & Hughes, Inc. and John B. Walsh’s Motion 

to Dismiss for Lack of Personal Jurisdiction Was and Remains a Final 

Appealable Order. 

III. Analysis 

{¶ 18} Because the parties dispute whether the trial court’s judgment entry of 

dismissal constituted a final appealable order, we address appellants’ second assignment 

of error first, as a threshold matter.3

 

 

 

3

 Appellees did not seek to dismiss this appeal for want of a final appealable order. 
9.

A. Final Order 

{¶ 19} In dismissing VelveTop and John B. Walsh as defendants for want of 

personal jurisdiction, the trial court initially included Civ.R. 54(B) language in the 

judgment entry, finding no just cause for delay. The Rule permits appeal of an otherwise 

interlocutory order pertaining to only some of the parties, if the judgment determines the 

action as to those parties and includes the determination that there is “no just reason for 

delay.” See Civ.R. 54(B) (“* * * [T]he court may enter final judgment as to one or more 

but fewer than all of the claims or parties only upon an express determination that there is 

no just reason for delay.”). 

{¶ 20} Days later, the trial court ordered, sua sponte, the Civ.R. 54(B) language 

stricken from the judgment of dismissal through a nunc pro tunc entry. As an initial 

matter, we note that a nunc pro tunc entry is properly used to correct a judgment entry so 

that it reflects the action actually taken by the court, and not to amend an entry to effect 

substantive change. As the Ohio Supreme Court noted in State ex rel. Rogers v. Rankin, 

154 Ohio St. 23, 26, 93 N.E.2d 281(1950): 

 “It is elementary that courts possess inherent common-law power to 

enter judgments or orders nunc pro tunc in proper cases. The phrase 

meaning simply ‘now for then’ is accurately descriptive. The general 

purpose of such an entry is to record a prior but unrecorded act of the court. 

In other words, the power to make nunc pro tunc entries is restricted 

ordinarily to the subsequent recording of judicial action previously and 
10. 

actually taken. It is a simple device by which a court may make its journal 

speak the truth.” (Citation omitted.) 

The clerical purpose of a nunc pro tunc entry means a court may not amend a final 

judgment, nunc pro tunc, to deprive the parties of “any rights which the previous order 

had accorded * * * nor make that order any less final * * *.” Green v. Ken’s Flower 

Shops, 6th Dist. Lucas No. L 94-088, 1994 WL 620732, *1-2 (Nov. 10, 1994), quoting 

Huntington National Bank, v. Hebeka, 6th Dist. Lucas Nos. L 90-318 and L 90-360, 1992 

WL 323945 (Jan. 4, 1991); Perfec. Stove Co. v. Sherber, 120 Ohio St. 445, 448, 166 N.E. 

376 (1929). 

{¶ 21} Here, the trial court attempted to substitute a new and different action, 

striking the original finding of “no just cause for delay.” There appears no record, 

furthermore, supporting appellees’ argument that the trial court intended the judgment to 

be merely interlocutory from the outset. The record, instead, demonstrates a judgment 

containing Civ.R. 54(B) language, and an attempt to substantively change the judgment 

through a nunc pro tunc entry, only to be amended once more in a third entry. The 

change, accordingly, sought to reverse an action taking in the final judgment, with no 

record to support a finding that the nunc pro tunc entry merely recorded an action already 

taken. Therefore, the trial court could not convert its final appealable order by nunc pro 

tunc entry. 

{¶ 22} The trial court, furthermore, had no jurisdiction to modify the final 

appealable order sua sponte. Generally, a trial court lacks authority to vacate or modify a 
11. 

final judgment, sua sponte, without a written motion under Civ.R. 60(B) seeking relief 

from judgment. (Citation omitted.) Midwest Environmental Controls, Inc. v. Houttekier, 

6th Dist. Lucas No. L-04-1118, 2004-Ohio-5999, ¶ 3; see also Maxwell v. Univ. Hosps. 

Health Sys., Inc., 8th Dist. Cuyahoga No. 104100, 2016-Ohio-7401, ¶ 5, citing Allstate 

Ins. Co. v. Witta, 9th Dist. Summit No. 25738, 2011-Ohio-6068, ¶ 19, citing Pitts v. Ohio 

Dept. of Transp., 67 Ohio St.2d 378, 380, 423 N.E.2d 1105 (1981) (“A trial court may 

only relieve a party from judgment by the mechanisms provided by the Ohio Rules of 

Civil Procedure.”). The trial court, therefore, erred in attempting to modify the final 

judgment entered as to VelveTop and John B. Walsh without a proper written motion, 

and its subsequent judgment entries were a nullity.4

 

{¶ 23} Finally, we note that a dismissal for lack of personal jurisdiction has been 

determined as appropriate for appeal where the judgment prevents a refiling in the trial 

court. In Natl. City Commercial Capital Corp. v. AAAA At Your Serv., Inc., 114 Ohio 

St.3d 82, 868 N.E.2d 663, 2007-Ohio-2942, ¶ 10, the Ohio Supreme Court considered 

whether dismissal for lack of personal jurisdiction constituted a final appealable order. In 

that case, the court noted that parties challenging the assertion of personal jurisdiction 

may appeal the judgment. Id., citing Goldstein, 70 Ohio St.3d at 235, 638 N.E.2d 541, 

citing State ex rel. Bradford v. Trumbull Cty. Court, 64 Ohio St.3d 502, 597 N.E.2d 116 

 

4

 While no party argues the trial court lacked authority to enter a third judgment entry, 

restoring the language of the first, the initial entry constituted a final appealable order, 

and therefore any subsequent action, entered without a motion under rule permitting 

modification, was without authority and a nullity. 
12. 

(1992) and State ex rel. Pearson v. Moore, 48 Ohio St.3d 37, 548 N.E.2d 945 (1990). A 

party challenging the opposite result, therefore, should also have the ability to appeal. In 

Natl. City, the dismissal prevented a refiling in the trial court, despite indicating it was 

without prejudice. In that case, the Supreme Court held, “[i]t is not logical to allow a 

party that believes a court wrongly asserted jurisdiction to appeal but to prevent a party 

that believes a court wrongly did not assert jurisdiction from appealing.” Natl. City at 

¶ 10. 

{¶ 24} In this case, appellants assert exclusive jurisdiction in Erie County, Ohio, 

as to all defendants, pursuant to the Franchise Agreement, which purportedly 

incorporates the Supplier Agreement. The trial court’s ruling, finding no personal 

jurisdiction over appellees, prevents a refiling in that court. Therefore, considering the 

trial court’s determination of a final appealable order under circumstances that prevented 

refiling in the trial court, we find appellants’ second assignment of error well-taken, and 

find this matter is properly before us on appeal. 

B. Personal Jurisdiction 

{¶ 25} In their first assignment of error, appellants argue the trial court erred in 

finding it lacked personal jurisdiction over appellees. Appellants alleged personal 

jurisdiction based on contacts with the forum state, and in the alternative, based on a 

consent to jurisdiction within the Franchise Agreement. 

{¶ 26} As to appellants’ claim of consent to jurisdiction pursuant to the Franchise 

Agreement, we note appellants rely—in part—on argument going to the merits of their 
13. 

third-party beneficiary claims. Appellants seek to enforce the forum selection clause of 

the Franchise Agreement against VelveTop and John B. Walsh as non-signatories who 

benefited from the arrangement.5 The issue before us is personal jurisdiction, and 

because our determination of minimal contacts and due process is dispositive, we do not 

reach the merits of appellants’ claims. 

{¶ 27} When a nonresident defendant seeks dismissal pursuant to Civ.R. 12(B)(2), 

the plaintiff bears the burden of demonstrating proper jurisdiction. Ashton Park Apts., 

Ltd. v. Carlton-Naumann Constr., Inc., 6th Dist. Lucas No. L-08-1395, 2009-Ohio-6335, 

¶ 12, citing Jurko v. Jobs Europe Agency, 43 Ohio App.2d 79, 334 N.E.2d 478 (8th 

Dist.1974). “Personal jurisdiction is a question of law that appellate courts review de 

novo.” Kauffman Racing Equip., LLC v. Roberts, 126 Ohio St.3d 81, 2010-Ohio-2551, 

930 N.E.2d 784, ¶ 27. 

 

5

 Appellants rely on Villanueva v. Barcroft, 822 F. Supp.2d 726 (N.D.Ohio 2011), where 

a non-signatory sought to enforce a forum selection clause against a signatory party. The 

facts in the present case are distinguishable, and more aligned with the facts in the Third 

Circuit Court of Appeals case of E.I. DuPont de Nemours and Co. v. Rhone Poulenc 

Fiber and Resin Interm., S.A.S., 269 F.3d 187 (3d Cir.2001). In E.I. DuPont, the Third 

Circuit noted that a non-signatory could be bound to a forum selection clause under 

contract principles governing third-party beneficiaries to the underlying agreement. 

Citing Coastal Steel Corp. v. Tilghman Wheelabrator Ltd., 709 F.2d 190, 202-204 (3d 

Cir.1983), overruled on other grounds by Lauro Lines v. Chasser, 490 U.S. 495, 109 

S.Ct. 1976, 104 L.Ed.2d 548 (1989). 
14. 

{¶ 28} Where the trial court determines the matter without an evidentiary hearing,6

appellants need only make a prima facie showing of jurisdiction. Kauffman at ¶ 27, 

citing Fallang v. Hickey, 40 Ohio St.3d 106, 107, 532 N.E.2d 117 (1988). A prima facie 

showing of personal jurisdiction requires “sufficient evidence to allow reasonable minds 

to conclude that personal jurisdiction exists over the defendant.” Figley v. Ivex 

Protective Packaging, Inc., 2016-Ohio-3501, 70 N.E.3d 12 (3d Dist.), quoting Parshall v. 

PAID, Inc., 10th Dist. Franklin No. 07AP-1019, 2008-Ohio-3171, ¶ 9, citing Goldstein v. 

Christiansen, 70 Ohio St.3d 232, 236, 638 N.E.2d 541 (1984) (additional citation 

omitted.). We “view allegations in the pleadings and the documentary evidence in a light 

most favorable” to appellants and resolve “all reasonable competing inferences” in 

appellants’ favor in making the determination. Kauffman at ¶ 27, citing Goldstein at 236. 

{¶ 29} Courts apply a two-step analysis in determining the proper exercise of 

personal jurisdiction over a nonresident defendant, with the second prong requiring 

consideration of three factors. This analysis requires determination of “(1) whether the 

long-arm statute and the applicable rule of civil procedure confer jurisdiction and, if so, 

 

6

 Unlike a Civ.R. 12(B)(6) motion, which limits review to the pleading, a court may 

consider outside evidence in determining its own jurisdiction, and may also hold an 

evidentiary hearing. See, e.g., Jurko v. Jobs Europe Agency, 43 Ohio App.2d 79, 85, 334 

N.E.2d 478, 482 (8th Dist.1975) (“When a court considers a challenge to its jurisdiction 

over a defendant-a defense which may require the taking of extensive evidence-the court 

may hear the matter on affidavits, deposition, interrogatories, or receive oral testimony, 

as matters of jurisdiction are very often not apparent on the face of the summons or 

complaint.”). 
15. 

(2) whether the exercise of jurisdiction would deprive the nonresident defendant of the 

right to due process of law under the Fourteenth Amendment to the United States 

Constitution.” Kauffman at ¶ 28, citing U.S. Sprint Comm. Co. Ltd. Ptnshp. v. Mr. K’s 

Foods, Inc., 68 Ohio St.3d 181, 183-184, 624 N.E.2d 1048 (1994). Here, the trial court 

found the first prong satisfied, and the first two factors under the second prong met, but 

ultimately determined that exercise of personal jurisdiction offended due process under 

the final factor of the due process analysis. For the reasons that follow, we disagree with 

the trial court’s conclusion. 

1. Jurisdiction Pursuant to Statute or Rule 

{¶ 30} Ohio’s long-arm statute, R.C. 2307.382 enumerates conduct that will 

permit a court’s exercise of personal jurisdiction, including: 

 (A)(1) Transacting any business in this state; 

 * * * 

 (A)(4) Causing tortious injury in this state by an act or omission 

outside this state if he regularly does or solicits business, or engages in any 

other persistent course of conduct, or derives substantial revenue from 

goods used or consumed or services rendered in this state; 

 * * * 

 (A)(6) Causing tortious injury in this state to any person by an act 

outside this state committed with the purpose of injuring persons, when he 
16. 

might reasonably have expected that some person would be injured thereby 

in this state[.] 

Civ.R. 4.3(A), likewise, permits service of process on nonresidents who have “caused an 

event to occur out of which the claim that is the subject of the complaint arose” based on 

“(1) Transacting any business in this state[.]” Civ.R. 4.3(A)(1). 

{¶ 31} The “transacting any business” standard is “a broad statement of 

jurisdiction[.]” U.S. Sprint Communications Co. Ltd. Partnership v. Mr. K’s Foods, Inc.,

68 Ohio St.3d 181, 185, 624 N.E.2d 1048 (1994), citing R.C. 2307.382(A)(1). 

“Transact,” means “to prosecute negotiations; carry on business; to have dealings * * *. 

The word embraces in its meaning the carrying on or prosecution of business negotiations 

but it is a broader term than the word ‘contract’ and may involve business negotiations 

which have been either wholly or partly brought to a conclusion * * *.” Kentucky Oaks 

Mall Co. v. Mitchell’s Formal Wear, Inc., 53 Ohio St.3d 73, 75, 559 N.E.2d 477 (1990), 

quoting Black’s Law Dictionary, 1341 (5 Ed.1979). 

{¶ 32} Appellants referenced documentary evidence to support their allegations, 

which are as follows. John B. Walsh initiated the contact with the forum state by 

traveling to Sandusky Ohio in 2007 to inquire about VelveTop becoming a SealMaster 

franchise. John B. Walsh followed up this contact with phone calls, leading negotiations 

in order to facilitate a Brothers’ franchise, as an alternative to VelveTop obtaining the 

franchise. John B. Walsh executed the Supplier Agreement with Brothers on behalf of 

VelveTop, and that agreement expressly stated its purpose was to induce InFrasys to 
17. 

grant the franchise to his sons, and their company, Brothers. John B. Walsh also sent 

VelveTop trucks to Ohio on numerous occasions each year, to pick up materials and 

goods from ThorWorks. Additionally, after InFrasys and ThorWorks raised concerns of 

a potential breach of the Supplier Agreement, John B. Walsh attended a meeting in 

Sandusky regarding the issue, and John B. Walsh spoke on behalf of his sons and 

Brothers. Based on these allegations, reasonable minds could conclude that appellants 

satisfied their burden of establishing a prima facie showing of personal jurisdiction over 

appellees, in conformity with R.C. 2307.384 and Civ.R. 4.3. 

2. Due Process 

{¶ 33} Once we determine that appellants satisfied both the Ohio long-arm statute 

and rule, we must consider whether the exercise of personal jurisdiction comports with 

due process. Although the long-arm statute permits exercise of personal jurisdiction, an 

Ohio court may only do so if the exercise of jurisdiction would not violate constitutional 

rights to due process. Kauffman, 126 Ohio St.3d 81, 2010-Ohio-2551, 930 N.E.2d 784, at 

¶ 45. 

{¶ 34} “[D]ue process is satisfied if the defendant has ‘minimum contacts’ with 

the forum state such that the maintenance of the suit does not offend ‘traditional notions 

of fair play and substantial justice.’” Kauffman at ¶ 45, quoting Internatl. Shoe Co. v. 

Washington, 325 U.S. 310, 316, 66 S.Ct.154, 90 L.Ed.95 (1945) (additional citation 

omitted.). Where a defendant “purposefully avails” themself “of the privilege of 

conducting activities within the forum state,” the minimum-contacts requirement is 
18. 

deemed to be met. Kauffman at ¶ 45, quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 

S.Ct. 1228, 2 L.Ed.2d 1283 (1968). 

{¶ 35} We apply a three-part test to determine whether a defendant has the 

minimum contacts necessary for exercise of personal jurisdiction and necessary to satisfy 

due process. Henderson v. SMC Productions, Inc., 6th Dist. Erie No. E-18-003, 2019-

Ohio-5275, ¶ 64. To demonstrate the necessary contacts, appellants must demonstrate 

that (1) appellees “purposefully availed” themselves of the privilege of acting in Ohio or 

causing a consequence in Ohio; (2) the cause of action must arise from appellees’ 

activities in Ohio, and (3) the appellees’ acts or consequences must have a substantial 

enough connection with Ohio to make exercise of jurisdiction reasonable. Henderson 

at ¶ 64, citing Ohlman Farm & Greenhouse, Inc. v. Kanakry, 6th Dist. Lucas No. 

L-13-1264, 2014-Ohio-4731, ¶ 26; see also Kauffman at ¶ 48-49, quoting Southern 

Machine Company v. Mohasco Ind., Inc., 401 F.2d 374, 381 (6th Cir.1968); Bird v. 

Parsons, 289 F.3d 865, 874 (6th Cir.1989). 

a. Purposeful Availment 

{¶ 36} To demonstrate “purposeful availment,” appellants must show that 

appellees’ contact proximately resulted from appellees’ own conduct that created a 

“substantial connection” with Ohio. Kauffman at ¶ 51, citing Burger King Corp. v. 

Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (additional citation 

omitted.). A substantial connection is required to ensure “that a defendant will not be 
19. 

haled into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ 

contacts.” Kauffman at ¶ 51, citing Burger King at 474-475. 

{¶ 37} Here, appellants made a prima facie showing as to the first factor of the 

test. Appellants presented evidence, demonstrating VelveTop, through John B. Walsh, 

first sought an Ohio-based SealMaster franchise opportunity for VelveTop. He later 

negotiated the franchise on behalf of Brothers, and as inducement for InFrasys to grant 

the franchise to Brothers, VelveTop and Brothers entered into a Supplier Agreement. 

VelveTop benefited from the combined deal by gaining access to the SealMaster catalog 

and brand, pursuant to the terms of the Supplier Agreement. Negotiations took place in 

Ohio, and VelveTop traveled to Ohio three or four times each year to pick up product 

from ThorWorks. After InFrasys determined that breach of the Supplier Agreement and 

Franchise Agreement had occurred, resulting in diminished royalties under the Franchise 

Agreement, John B. Walsh traveled to Ohio to discuss the breach of the agreements. 

Considering the allegations, with supporting evidence as to the factor used in determining 

prima facie support for personal jurisdiction, we find appellants satisfied the first factor. 

b. Harm Caused in the Forum State 

{¶ 38} As to the second part of the test, appellants must show that the cause of 

action arose, in Ohio, as a result of appellees’ activities. “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.” Kauffman at ¶ 70, quoting CompuServe, Inc. 

v. Patterson, 89 F.3d 1257, 1267 (6th Cir.1996). Only a “relation” is necessary, as the 
20. 

test “does not require that the cause of action formally ‘arise from’ defendant’s contacts 

with the forum; rather, this criterion requires only ‘that the cause of action, of whatever 

type, have a substantial connection with the defendant’s in-state activities.’” Kauffman at 

¶ 70, quoting Third Natl. Bank in Nashville v. WEDGE Group, Inc., 882 F.2d 1087, 1091 

(6th Cir.1989), quoting S. Machine Co., 401 F.2d at 384, fn. 27. 

{¶ 39} Here, appellants alleged that the conduct of VelveTop and John B. Walsh, 

in failing to honor the Supplier Agreement, caused damages to their business in Erie 

County, Ohio. Specifically, appellants alleged that VelveTop failed to purchase 

SealMaster finished products and equipment from Brothers, depriving InFrasys of 

royalties, fees, and income due under the Franchise Agreement, and depriving 

ThorWorks of revenue and profits from the sale of these products. Additionally, as to 

VelveTop and John B. Walsh, appellants alleged a claim for interference with the 

business relationship with Brothers by refusing to honor the Supplier Agreement. 

Appellants supported their allegations with affidavit testimony, describing violations of 

the Supplier Agreement and John B. Walsh’s admission of violations. Considering the 

allegations, with supporting evidence as to the factor used in determining prima facie 

support for personal jurisdiction, we find appellants satisfied the second factor. 

c. Inference of Reasonableness 

{¶ 40} Once a plaintiff satisfies the first two parts of the test by demonstrating a 

prima facie case, “‘then an inference arises that this third factor is also present.’” 

Kauffman at ¶ 71, quoting CompuServe, Inc., 89 F.3d at 1268, citing Am. Greetings Corp. 
21. 

v. Cohn, 839 F.2d 1164, 1170 (6th Cir.1988). This inference applies in all but “the 

unusual case.” Kauffman at ¶ 71, quoting Am. Greetings, 839 F.2d at 1170, quoting First 

Natl. Bank of Louisville v. J.W. Brewer Tire Co., 680 F.2d 1123, 1126 (6th Cir.1982). 

{¶ 41} The trial court determined appellants satisfied the first two factors, but not 

the third, without any discussion of the inference pertaining to the third test. Moreover, 

the trial court noted the “sporadic” visits to Ohio and lack of evidence on how frequent 

VelveTop picked up materials each year, as well as the fact that VelveTop and John B. 

Walsh were not signatories to the Franchise Agreement. Essentially, the trial court 

addressed the third factor as a stand-alone requirement, lacking any benefit of an 

inference arising from satisfaction of the first two prongs. The trial court elevated this 

third factor by apparently requiring appellants to produce evidence of the frequency of 

VelveTop’s presence in Ohio, a most stringent standard for proving the third factor 

considering the applicable authority. 

{¶ 42} Contrary to the trial court’s interpretation, the final inquiry regarding due 

process is whether the claim has enough connection to Ohio to make exercise of 

jurisdiction over appellees reasonable. Resolution of this test, considering the applicable 

inference, “involves merely ferreting out the unusual cases where [Ohio’s interest in 

resolving the dispute] cannot be found.” S. Machine Co., 401 F.2d at 384. The Ohio 

General Assembly provides guidance in determining Ohio’s interest, as outlined in 

Ohio’s long-arm statute, which provides for jurisdiction over those who transact business 

in this state or cause tortious injury within this state. R.C. 2307.382(A)(1), (4), and (6). 
22. 

{¶ 43} Exercise of personal jurisdiction does not offend due process in this 

instance. “A State generally has a ‘manifest interest’ in providing its residents with a 

convenient forum for redressing injuries inflicted by out-of-state actors.” (Citations 

omitted.) Burger King, 471 U.S. at 473, 105 S.Ct. 2174, 85 L.Ed.2d 528. In cases where 

an out-of-state actor has purposefully acted and derived a benefit from their activities, 

moreover, “it may well be unfair to allow them to escape having to account in other 

States for consequences that arise proximately from such activities[.]” Burger King at 

474, citing Kulko v. California Superior Court, 436 U.S. 84, 96, 98 S.Ct. 1690, 56 

L.Ed.2d 132 (1978). 

{¶ 44} Finally, the fact that contact may have been “sporadic” is not 

determinative. “If it creates a ‘substantial connection’ to the forum state, a single 

purposeful contact is enough to satisfy the requirements of due process.” (Citations 

omitted.) Fallang v. Hickey, 40 Ohio St.3d 106, 108, 532 N.E.2d 117 (1988). In this 

case, appellants claim injury to corporations located in Ohio, caused by appellees’ 

actions, and arising from appellees’ contacts with the forum state. Accordingly, exercise 

of personal jurisdiction over appellees is reasonable, and the trial court erred in 

determining otherwise. We find appellants’ first assignment of error well-taken. 

 
23. 

IV. Conclusion 

{¶ 45} Having found the exercise of personal jurisdiction over appellees VelveTop 

and John B. Walsh proper, we reverse the judgment of the Erie County Common Pleas 

Court and remand the matter for further proceedings against all defendants. Appellees 

are ordered to pay the costs of this appeal pursuant to App.R. 24. 

Judgment reversed 

and remanded. 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Mark L. Pietrykowski, J. _______________________________ 

JUDGE 

Thomas J. Osowik, J. 

_______________________________ 

Gene A. Zmuda, P.J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE 

This decision is subject to further editing by the Supreme Court of 

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported 

version are advised to visit the Ohio Supreme Court’s web site at: 

http://www.supremecourt.ohio.gov/ROD/docs/.