# Petition for Writ of Certiorari — Mitchell's Formal Wear, Inc. v. Kentucky Oaks Mall Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_3064%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 499 U.S. 975 ## Text 90-7 26 | iat teat cs FILED | NOV 5 dame C8 har es >_> ~ - —_ ~ ~~. a IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1990 MITCHELL’S FORMAL WEAR, INC., Petitioner, V. KENTUCKY OAKS MALL COMPANY, Respondent. . PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO PETITION FOR A WRIT OF CERTIORARI Archer D. Smith, III HARMON, SMITH, BRIDGES & WILBANKS 1795 Peachtree Road, N.E. Suite 350 Atlanta, Georgia 30309-2303 (404) 881-1200 Counsel of Record Jeffrey B. Fleck Mary DeGenaro FLECK, MOSTOV & SCHWARTZ 1100 Wick Building Youngstown, Ohio 44503 (216) 743-3344 Counsel for Petitioner QUESTION PRESENTED Did the Supreme Court of Ohio err in holding it constitutionally permissible for Ohio courts to assert personal jurisdiction over a nonresident Georgia corporation even though the nonresident corporations’s only contacts with the State of Ohio were entering into a lease that contained a choice-of-law clause providing that Kentucky law would govern, with an Ohio limited partnership for retail space located in Kentucky, negotiating terms of the lease by telephone between Georgia and Ohio, and mailing rent checks to Ohio, as required by the lease? a 7 Fi _ .. ih luk one ete . ‘ esas Mr okt ee wars’ (finan ey kd ge oe * ae a Si on team piri | : me ei a: ee a aoa Lt) LIST OF PARTIES AND RULE 29.1 LIST - ~ The parties to the proceedings below were the petitioner Mitchell’s Formal Wear, Inc. and the respondent Kentucky Oaks Mall Company. Mitchell’s Management Corporation, a Georgia Cor- poration, owns one hundred percent of the stock of Mitchell’s Formal Wear, Inc., a Georgia corporation. Mitchell’s Formal Wear, Inc. has no other ownership interests in any other corpora- tion. TABLE OF CONTENTS ‘ Page IO EEED ecccccscsesseennserstneenssesananinnnsnsanenensenmniiennnits i Re IEE: clnhdtneictsnshenennneneennnnanseensnsaneinnbscinenniiiiibhnssamensenten ii EIT snncennseseesqetsenenssnnannnoutnnetinncetsbonensnasesnensatehinnnee 1 PR II binctictepnnitininenenninnnnitinannennnnnnanniiannntinamennnaninnnentiiis 2 CONSTITUTIONAL PROVISION AND STATUTES IN- WP OTE dnsleibttisnanpvticnesneconniinnninsnnenenssnavesnnstanasabensatansasescansenscanenceneees 3 ECCT TU BUTE SIMI cncenncetenenncensscscasesecisscseccnnentnenienanesi 6 REASONS FOR GRANTING THE WRIT .........cceccesseseseseeeeeees 10 I. The Ohio Supreme Court's assertion that Ohio courts may exercise personal jurisdiction over a nonresident lessee violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution and conflicts with decisions of this Court and courts of other states. enn UnITITITT sschsnlstulciainnsinsimsnisonsiiiahiisbncncanensiibilibsinnieadanngiclaeinabbaalial 19 EIT, sieshiccnassinnescpinicbaiciteinedeceiitesiamnininesgtigatnaistileialiicinabdeniihiing la TABLE OF AUTHORITIES 7 Cases: Page Advance Realty Associates v. Krupp, 636 F. Supp hE et a ee 16 Anilas, Inc. v. Kern, 31 Ohio St.3d 163, 509 N.E.2d EERE EE ices et Se 7,8 Arthur, Ross & Peters v. Housing, Inc., 508 F.2d EE ER GUINTEED ceshttiincicienhscceciateansintelieniietieshievicienvenanionnice 16 ill ee i - - Eh SC SSS SS ee teen Page | Burger King Corp. v. Rudzewicz, 471 U.S. 462 (RT ace tae Ren 7, 8, 10, 12-15, 17, 18 DelBello v. Japanese Steak House, Inc. 43 A.D.2d 455, 352 N.Y.S.2d 537 (N.Y. App. Div. 1974) ........ceccceceeees 16 Grossman v. Wal-Mart Stores, Inc., 682 F. Supp. 6 16 Hanson v. Denkla, 357 U.S. 235 (1958) .........cccceseeeseeeees 8, 11,15 International Shoe Co. v. Washington, 326 U:S. we EST | Fe eS Kulko v. Superior Court, 436 U.S. 84 (1978) .......ccccceceseeeeeeees il McGee v, International Life Ins. Co., 355 U.S. 220 Tr swenseseattonnen 7,10 Milliken v. Meyer, 311 U.S. 457 (1940) ........ceccccceeseeseeseeeseees 11 558 F. Supp. 1118 TE 16 Ohio State Tie & Timber v. Paris Lumber Co., 8 Ohio App.3d 236, 456 N.E.2d 1309 (1982) ..........ccccseseeseeeseesenes 7 Rush v. Savchuk, 444 U.S. 320 (1980) ........cccccccccesseesseeeeseeeees 11 Shaffer v. Heitner, 433 U.S. 186 (1977) .0.......ccccceccecseeeseees 7,8, 11 Signet Bank/ Virginia v. Tillis, 196 Ga. App. 433 (1990) .... 12, 17 Travelers Health Assn. v. Virginia, 339 U.S. 643 (1950) .......... 18 World-Wide Volkswagen Corp. v Woodson, 444 U.S. | TTS A A 7, 8,10, 13 Wri ’ Vv. vrolet, Ine. 689 F. Supp 788 (S.D. Ohi0 1988) 0.0... ecceeeeeteeeeeseees 11 Statutes: Page Ohio Rev. Code Ann. § 2307.382 SPIE IIS TEUIIIED cscitivesecvscccsenunstnnonanensnssorersoseostn 8,11 ee ne ee Fanaa iauncecedlia thai eeaiiatsdeneacepasennchiusnaneneenmencuctetnttniseccebianienabess 8 iv f IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1990 MITCHELL’S FORMAL WEAR, INC., Petitioner, V. KENTUCKY OAKS MALL COMPANY, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO The petitioner Mitchell’s Formal Wear, Inc. respectfuliy prays that a writ of certiorari issue to review the judgment and opinion of the Supreme Court of Ohio, entered in the above- entitled proceeding on August 8, 1990. OPINIONS BELOW The opinion of the Supreme Court of Ohio is reported at 53 Ohio St.3d 73 (1990), and is reprinted in the appendix hereto, p. 3a, infra The journal entry and opinion of the Court of Appeals of Ohio, Seventh Appellate District, Mahoning County unreported. It is reprinted in the appendix hereto, p. 11a, infra. The judgment entry of the Common Pleas Court of Mahon- ing County, Ohio is unreported. It is reprinted in the appendix hereto, p. 17a, infra. JURISDICTION In January, 1988, the Ohio respondent brought this suit against the Georgia petitioner in the Common Pleas Court of Ma- honing County, Ohio. On September 20, 1988, the court granted petitioner's motion to dismiss the complaint against it on the grounds that Ohio courts lacked in personam jurisdiction over petitioner. See p. 17a, infra. Respondent appealed to the Ohio Court of Appeals for the Seventh Appellate District, Mahoning County, Ohio. That court affirmed the Common Pleas Court’s decision on June 29, 1989. See p- 11a, infra. Respondent then appealed to the Supreme Court of Ohio, which, on August 8, 1990, reversed and remanded the case to the trial court for further proceedings. See p. 2a, infra. No petition for rehearing was sought. Subsequently, petitioner filed a motion for stay in the Court of Common Pleas, Mahoning County, Ohio. Respondent filed a memorandum opposing motion to stay on or about October 4, 1990. The court denied the motion to stay on October 18, 1990. The jurisdiction of this Court to review the judgment of the Supreme Court of Ohio is invoked pursuant to 28 U.S.C. § 1257(a). CONSTITUTIONAL PROVISION AND f STATUTES INVOLVED Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Ohio Rev. Code Ann. § 2307.382 (Anderson Supp. 1989). Personal jurisdiction. (A) A court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a cause of action arising from the person’s: (1) Transacting any business in this state; (2) Contracting to supply services or goods in this state; (3) Causing tortious injury by an act or omission in this state; (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 rei./ered in this state; (5) Causing injury in this state to any person by breach of warranty expressly or impliedly made in the sale of goods outside this state when he might reasonably have expected such person to use, consume, or be affected by the goods in this state, provided that he also regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue form goods used or consumed or services rendered in this state; (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 might reasonably have expected that some pons would be injured thereby in this state; (7) Causing tortious injury to any person by a criminal act, any element of which takes place in this state, which he commits or in the commission of which he is guilty of complicity; (8) Having an interest in, using, or possessing real property in this state; (9) Contracting to insure any person, property, or risk located within this state at the time of contracting. (B) Forpurposes of this section, a person who enters into an agreement, as a principal, with a sales representative for the solicitation of orders in this state is transacting business in this state. As used in this division, “principal” and “sales representa- tive” have the same meanings as in section 1335.11 of the Revised Code. (C) When jurisdiction over a person is based solely upon this section, only a cause of action arising from acts enumerated in this section may be asserted against him. (A) When service , permitted. Service of process may be made outside of this state, as provided herein, in any action in this state, upon a person who at the time of service of process is a nonresident of this state or is a resident of this state who 1s absent from this state. The term “person” included an individual, his ex- ecutor, administrator, or other personal representative, or a corpo- ration, partnership, association, or any other legal or commercial entity, who, acting directly or by an agent, has caused an event to occur out of which the claim which is the subject of the complaint arose, from the person’s: (1) Transacting any business in this state; (2) Contracting to supply services or goods in this state; (3) Causing tortious injury by an act or omission in this state including but not limited to actions arising out of the ownership, operation, or use of a motor vehicle or aircraft in this state; (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; (5) Causing injury in this state to any person by breach of warranty expressly or impliedly made in the sale of goods outside this state when he might reasonably have expected such person to use, consume, orbe affected by the goods in this state, provided that he also regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue form goods used or consumed or services rendered in this state; (6) Having an interest in, using, or possessing real property in this state; (7) Contracting to insure any person, property, or risk located within this state at the time of contracting; (8) Living in the marital relationship within this state notwithstanding subsequent departure from this state, as to all obligations arising for alimony, custody, child support, or property settlement, if the other party to the marital relationship continues to reside in this state; (9) Causing tortious injury in this state to any person by an act outside this state committed with the purpose of injuring persons, when he might reasonably have expected that some person would be injured thereby in this state; (10) Causing tortious injury to any person bya criminal act, any element of which takes place in this state, which he commits or in the commission of which he is guilty of complicity. STATEMENT OF THE CASE Petitioner is a Georgia corporation which operates retail stores for the sale and rental of formal wear. All of petitioner's stores and agents are located exclusively throughout the South- eastern United States. Petitioner has never operated any stores in Ohio.' Respondent is an Ohio limited partnership which owns and operates the Kentucky Oaks Mall located in Paducah, Ken- tucky. Respondentis an entity controlled by the Cafaro Company, one of the largest developers of retail shopping malls in the United States. In 1985, petitioner and respondent entered into a lease whereby petitioner leased from respondent unit number 640 of the Kentucky Oaks Mali. (The lease is reproduced at p. 31a, infra.) Pe- titioner never entered Ohio to negotiate the terms of the lease; all negotiations were conducted by telephone and mail between petitioner in Georgia and respondent in Ohio. Petitioner signed the lease in Georgia and mailed it to respondent in Ohio. There- fore, according to clause 43 of the lease (p. 71a, infra), which provides that the lease became effective upon its delivery by respondent to petitioner, the lease became effective in Georgia. Pe- titioner’s only contacts with the State of Ohio were the negotiations by telephone and mail and the mailing of rental payments to Ohio, as required by the lease. In spite of the Kentucky location of the leased property and a choice-of-law clause providing that Kentucky law governs the lease (clause 44, p. 72a, infra), in January, 1988, respondent sued petitioner in the Court of Common Pleas of Mahoning County, Ohio for an alleged breach of the lease. Petitioner immediately moved to dismiss the complaint on the grounds that Ohio lacked personal jurisdiction over petitioner. In its motion and brief and supplemental brief, petitioner raised the issue that an Ohio court’s exercise of personal jurisdiction over petitioner would violate petitioner's due process rights and would contravene this Court's decisions in International Shoe Co. v. Washington, 326 U.S. 310 The only states in which petitioner has ever operated its stores are: Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee and Virginia. 6 > sot lll (1945) and its progeny. See p. 18a, infra. On September 20, 1988, the Court of Common Pleas sus- tained petitioner's motion to dismiss and ordered respondent's complaint dismissed. See p. 17a, infra. In its judgment entry, theCourt of Common Pleas did not specifically rely on Interna- tional Shoe, but instead relied on Ohio State Tie & Timber, Inc. v. Paris Lumber Co., 8 Ohio App.3d 236, 456 N.E.2d 1309 (1982) to de- termine that “the contract between Defendant and the State of Ohio [was] insufficient to make it fair and reasonable for the out- of-state corporation to defend a suit in this jurisdiction.” P. 17a, infra. Respondent appealed the decision to the Ohio Court of Appeals for the Seventh District, Mahoning County, Ohio. In its brief, the respondent argued that petitioner was amenable to Ohio jurisdiction pursuant to Ohio’s long-arm statute, that the exercise of such jurisdiction comported with due process and that the exercise of such jurisdiction would be consistent with this Court's decisions in International Shoe v. Washington, 326 U.S. 310 (1945), McGee v. International Life Ins. Co., 355 U.S. 220 (1957), Shaffer v. Heitner, 433 U.S. 186 (1977), World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) and Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985). The Court of Appeals affirmed the Court of Common Pleas’ decision. In affirming, the court primarily relied on two decisions, Anilas, Inc. v. Kern, 31 Ohio St.3d 163, 509 N.E.2d 1267 (1987) and Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985). In its opinion, the court stated: In the case of Burger King Corp. v. Rudzewicz (1985), 471 U.S. 462, the United States Supreme Court imposed jurisdiction on an out-of-state liti- gant based upon the test that ‘he manifestly has availed himself of the privilege of conducting busi- ness there, and b e his activities are shielded by the benefits and protection of the forum’s laws, itis presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well.’ In the instant case, based upon the contract be- tween the parties, the appellee’s activities, very specifically, were not shielded by the benefits and protections of Ohio law. The parties very specifi- cally provided that the conditions of the lease would be governed by and construed in accordance with the laws of the State of Kentucky. p. 15a, infra (emphasis supplied by the Court of Appeals). The court held that because the parties had agreed that Kentucky law would control the lease, it was not foreseeable that petitioner would be haled into court in Ohio for litigation concerning the lease. The court went on to state that because “ foreseeability is one of the primary factors to be considered in determining whether there are sufficient minimum contacts,” Anilas, Inc. v. Kern, 31 Ohio St.3d 163, 164, 509 N.E.2d 1267 (1987), to force petitioner to litigate in Ohio would violate the principles of Anilas, Inc. v. Kern, 31 Ohio St.3d 163,509 N.E.2d 1267 (1987), and the cases cited inthat decision, including International Shoe, Hanson v. Denkla, 357 U.S. 235 (1958), Shaffer v. Heitner, 433 U.S. 186 (1977), World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980), Travelers Health Assn. v. Virginia, 339 U.S. 643 (1950) and Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985). Anilas at 164, p. 14a-15a, infra. On July 28, 1989, respondent appealed to the Supreme Court of Ohio. On August 8, 1990, the Supreme Court of Ohio reversed the decision of the court of appeals and remanded the case for further proceedings. The Ohio Supreme Court first decided that petitioner’s activities with respondent reached the level of“ transacting business” in Ohio pursuantto Ohio Rev. Code Ann. § 2307.382 (Anderson Supp. 1989) and Ohio Civ. R. 4.3. The court stated: Accordingly, we hold that a commercial - nonresident lessee, for purposes of personal juris- diction, is “transacting any business” within the plain and common meaning of this phrase, where the lessee negotiates, and through the course of dealing becomes obligated, to make payments to its lessor in Ohio. p. 6a, infra. Next, the court considered “whether the assertion of personal jurisdiction by an Ohio court over Mitchell’s comports with the Due Process Clause of the Fourteenth Amendment.” p. 6a, infra. The court conciuded that merely because petitioner conducts business outside Georgia and entered into a lease with an Ohio-based limited partnership, an Ohio court's exercise of juris- diction over petitioner comports with due process. REASONS FOR GRANTING THE WRIT I. The Ohio Supreme Court's assertion that Ohio courts may exercise personal jurisdiction over a nonresident lessee violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution and conflicts with decisions of this Court and courts of other states. The Supreme Court of Ohio has attempted to expand the “permissible scope of state jurisdiction over foreign corporations and other nonresidents,” ee v. Internatio ife Ins. Co., 255 U.S. 220, 222 (1957), by slighting constitutional considerations, to allow a landlord to sue its tenant in the landlord’s home state, with little consideration of the tenant’s connections with the state. By equating a “lease agreement” with a “franchise agreement,” the court has ignored the minimum contacts analysis it was required ta pursue in order to exercise long-arm jurisdiction, without violating due process concerns, over petitioner. In doirg this, the court has violated the principles of International Shoe Co. v. Washington, 326 U.S. 310 (1945) and its progeny including Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985). If this decision is al- lowed to stand, all landlord-tenant cases will be litigated in the landlord’s home state, regardless of the location of the leased premises. In World-Wide Volkswagen Corp. v. Woodson, 44 US. 286 (1980), this Court stated that “[t]he Due Process Clause, by ensuring the ‘orderly administration of the laws,’ gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.” Id. at297 (quoting [nt tional Shoe Co. v. Washington, 326 U.S. 310, 319 (1945)). This Court established the modern due process require- ments for the exercise of personal jurisdiction over a nonresident defendant in International Shoe Co. v. Washington, 326 U.S. 310 10 (1945), holding that “due process requires only that in order to subject a defendant to a judgmentin personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.”” Id. at 316 (emphasis supplied) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). Subsequently, the Court has refined this stan- dard. For example, in Hanson v. Denkla, 357 U.S. 235 (1958), this Court stressed that it is the defendant’s contacts with the forum which are important and that the “unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State.” Id. at 253. Similarly, in Shaffer v. Heitner, 433 U.S. 186 (1977), Kulko v. Superior Court, 436 U.S. 84 (1978), and Rush v. Savchuk, 444 U.S. 320 (1980), this Court emphasized that the defendant's relation- ship with the forum is more important than the defendant’s mere ownership of property in the forum (Shaffer), the forum state’s interests in resolving the litigation (Kulkg), and the plaintiff's ties with the forum (Rush). The conflict between Lianson, Shaffer, Kulko and Rush and the instant case could not be more complete. In the case at bar, the Supreme Court of Ohio stressed the respondent's interests in resolving the litigation in Ohio and the State of Ohiv’s interests in providing its citizens with a forum over the petitioner's interests. Of particular relevance is the following quote from the opinion: [A]ppellant’s and the forum state’s interest in adjudicating the dispute is strong. The General Assembly, pursuant to R.C. 2307.382(A)(1), intended to provide a forum for Ohio residents. Likewise, ’. .. Ohio has an interest in resolving suits brought by one of its residents and has a substantial interest in seeing that its residents get the benefit of tneis bargain. . .” p. 10a, infra (quoting Wright Int’l Express, Inc. v. Roger Dean Chevrolet Inc., 689 F. Supp 788, 791 (S.D. Ohio 1988)). The court’s focus on the respondent's interests and the respondent's contacts with the State of Ohio is again apparent in its listing of petitioner's 11 purported contacts. In its opinion the court states: Mitchell’s conducted negotiations of the lease terms by telephone contact to Ohio with appellant, an Ohio-based limited partnership. Mitchell’s intentionally and purposefully directed activities at Ohio when it agreed to the contract terms, signed the document in Georgia and sent it to Ohio to be signed by appellant. The ten-year lease requires that Mitchell’s submit to appellant on 2 monthly or annual basis rental payments, maintenance costs, association fees and sales re- ports. If Mitchell’s refuses to make the contractu- ally required payments in Ohio, as alleged by appellant, such refusal will undoubtedly cause foreseeable injuries. Further, Mitchell’s is not pro- vided with unfettered control of its retail sale and rental operation. The lease calls for appellant's ap- proval in many areas and aiso restricts or regulates many activities. Mitchell’s is also aware that all communications need be directed to appellant in Ohio. p. 8a-9a, infra. Upon examination of the criteria recited by the Ohio Supreme Court, it is clear that this list is merely a list of respon- dent's ties to Ohio; these regulations of petitioner’s conduct are in- cidental to the purpose of the contract -- to establish a Mitchell’s Formal Wear store in Paducah, Kentucky. Such contact based upon the mere fortuitous consequence of respondent's place of residence is insufficient to support a finding that petitioner has purposefully established such meaningful contacts and connec- tions with Ohio that it should reasonably be expected to appear there to defend an action based upon its alleged failure to perform its part of the contract in Georgia. See, Signet Bank/ Virginia v. Tillis, 196 Ga. App. 433 (1990). Respondent’s locationis irrelevant; the object of the contract is unit number 640 located in the Ken- tucky Oaks Mall, Paducah, Kentucky. Equally in conflict with the decision below is Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985), the case the Supreme Court of Ohio relied on most heavily in its opinion. The decision 12 below conflicts with Burger King in three respects: first, the Ohio Supreme Court considered factors, other than the petitioner's contacts with the forum, more important in determining whether it was constitutionally permissible to exercise jurisdiction over petitioner; second, the Ohio Supreme Court equated the lease agreementin the instant case with the franchise agreement at issue in Burger King, ignoring the realities of the situation; third, the Supreme Court of Ohio ignored Burger King’s directives concern- ing the jurisdictional effect of choice-of-law provisions in con- tracts. In Burger King, Justice Brennan wrote: Once it has been decided that a defendant purposefully established minimum contacts within the forum State, these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with ‘fair play and substantial justice.’ Interna- tional Shoe Co. v. Washington, 326 U.S. at 320, 66 S.Ct. at 160. Thus, courts in ‘appropriate case[s]’ may evaluate ‘the burden on the defendant,’ ‘the forum State’s interests in adjudicating the dispute,’ ‘the plaintiff's interest in obtaining convenient and effective relief,’ ‘the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and the ‘shared interest of the sev- eral States in furthering fundamental substantive social policies.’ Burger King at 476-477 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980)). Justice Brennan made it clear that the “other factors” should be considered only after it has been decided that adefendant purposefully established minimum contacts within the forum state. The Supreme Court of Ohio’s consideration of the “other factors” such as the respondent's interest in litigating in Ohio, the forum State’s interests, and the burdens on the petitioner, took on paramount importance, over and above its consideration of petitioner's purposefully establish- ing contacts with the forum, in its decision to exercise jurisdiction over petitioner. Similarly, the Supreme Court of Ohio ignored the realities of petitioner's relationship with the respondent and the forum and instead equated the lease agreement at issue in this case with the franchise agrement at issue in Burger King. Based on this faulty assumption, the court concluded that petitioner had established sufficient contacts with Ohio so that Ohio courts might exercise jurisdiction over petitioner. In its opinion the cc urt states that it considers the Burger King decision because that case “involved a contract dispute substantially similar to the issue presented before us today.” p.7a, infra. This is not so. The purpose of the franchise agreement in Burger King was to establish one more Burger King restaurant. The store in Michigan was known as a Burger King - - both the franchisor and the franchisee had the same identity. The Florida franchisor regulated virtually every aspect of the opera- tion. In the instant case, the purpose of the lease agreement was to establish a Mitchell’s Formal Wear store in Kentucky; any regulation of the petitioner by the respondent was incidental to this purpose. Respondent’s only connecticn with petitioner's purpose was that it owned the Kentucky real estate. Thus, although the Supreme Court of Ohio heavily relies on Burger King inits analysis of the facts of the case, the contracts at issue in the two cases are factually dissimilar. Finally, the Supreme Court of Ohio ignored the directives in Burger King concerning the jurisdictional importance of choice- of-law provisions. In Burger King, one of the defendant's contacts with the State of Viorida was that the franchise agreement specifi- cally provid’ — 2.__ Utilities: a. General: Landlord shall furnish telephone, water and sanitary sewer services to the perimeter of the demised premises at a point or points selected by Landlord. An electrical conduit will be installed by the Landlord from the appro- priate meter point to the perimeter of Tenant’s premises. The electrical and service system, other than said conduit, shall be furnished and installed by the Tenant. b. Water Meter Clearance: In accordance with Paducah Water Works’ requirements, Tenant shall at all times maintain a 3' x 3' clear unobstructed area immediately adjacent to the water meter installation together with a 3' clear aisleway accessible to the space. The Tenant shali further completely comply with the Paducah Water Works’ requirements as stipu- lated in the “Standard Mall Construction Criteria”. c. Temporary Utilities: Tenant or its contractors s] P KENTUCKY OAKS MALL EXHIBIT A (continued) are responsible for all temporary utilities for their work, including payment of all their utility charges. For the period that Tenant utilizes Landlord’s supply of temporary electric, Tenant shall reimburse Landlord at a rate of $200.00 per month; said amount shall be considered as additional rental payable along with Ten- ant’s first month’s guaranteed minimum rental. d. Sprinkler System: Landlord has provided sprin- kler mains, laterals, upright heads, etc. on a standard spacing based to accommodate Code requirements. For the existing sprin- kler work performed, Tenant agrees to reimburse Landlord an amount equal to $1.25 per square foot of Tenant's total leasable area, including mezzanines, if any. The modifications and com- pletion of the sprinkler system shall be the complete responsibility of Tenant at Tenant’s sole cost and expense; such expense shall be in addition to the $1.25 per square foot mentioned above. Said completion cost shall be paid by Tenant directly to a bona fide sprinkler contractor of its choice. Said sprinkler system installation shall comply with all governing codes, including local building inspection department, State Fire Marshall's office, and in conformance with Insurance Services Office of Kentucky and the Landlord’s insur- ance carrier. Complete approved sprinkler shop drawings shall be submitted to Landlord’s Architect for review and record in reproducible sepia prints. The Tenant’s Sprinkler Contractor must comply with the following requirements: 1. = Itis mutually understood and agreed that the system must be completely operational during business hours of the mall. If for any reason the system has to be turned off, permission must be previously obtained from the Mall Manager and must be scheduled before or after business hours of the tenant spaces. In such case, Sprinkler Contractor shall be responsible to make sure system is again turned on prior to mall opening forbusi- ness. 2. Any Sprinkler Contractor working on the existing system must in no way damage the existing system and must maintain the integrity of said system. Any damages to the existing system or liability or damages incurred by mall or tenant spaces because of the negligence of Tenant’s Sprinkler Contractor, shall be paid for by Tenant. e. It is understood that utility lines may pass 79a KENTUCKY OAKS MALL EXHIBIT A (continued) through Tenant's store area to service other areas. f. Connection and utility availability fees or in- stallation costs and/or fees for utility meters, sewer permits, tap- ins, utility bonds, etc., if allocable to individual storerooms, shall be paid by Tenant. C. ALLOWANCE ¢ Landlord will give to Tenant a total allowance of $8,000 to complete all other improvements to the demised premises. Said amount shall be paid by Landlord to Tenant upon completion of the premises by Tenant in accordance with the approved plans and specifications and upon certification by Landlord’s Architect of such completion, and after opening for business by Tenant in the demised premises. As a condition precedent to collection of said allowance, Tenant shall furnish Landlord with Waivers of Liens and Contractors and Subcontractors Affidavits from all suppliers and material men and such other evidence as may reasonably be required by Landiord that all of said work and installations therein have been paid in full, including the cost of all labor, material and / or equipment. As a condition precedent to the payment of said construction allowance, Tenant shall furnish to the Landlord a copy of the “Certificate of Occupancy” for the demised premises as is issued by the appropriate State or local Bureau. D. WORK BY TENANT Any and all work required to finish the construction of theTenant’s storeroom other than the “Shell” to be provided by Landlord, as defined above, shall be the complete responsibility of the Tenant. EXHIBIT B SIGN STANDARDS 1. The advertising or informative content of all signs shall be limited to letters designating the store name and/or type of store (which such designation of the store type shail be by general de- scriptive terms and shall not include any snecification of the merchandise offered for sale therein or the services rendered therein) and shall contain no advertising devices, slogans, sym- bols or marks (other than the store name and/or type of store, as aforesaid, and other than crests and corporate shields which shall be permitted if less than 18" in width and height). 2. The letters on all signs shall be script or individual block type. No box signs will be permitted. The size of the letters shall be in proportion to the size of the sign as determined in accordance with the provisions of paragraph 5.D. of this Exhibit. Further, the letters shall be back-lighted orindividually illuminated; therefore, the lamps shall be contained wholly within the depth structure of the letters. 3. The character, design, color and layout of all signs shall be subject to Landlord’s architect’s written approval which shall not be unreasonably withheld to the extent the sign in question complies with the criteria set forth in this Exhibit. 4. No occupant shall install more than one (1) sign on the storefront of its Demised Premises. However, a.. occupant of a corner store may install one (1) sign on each facade thereof, provided no more than a total of two (2) signs shall be permitted on the entire storefront of any corner store in any event. S. All signs shall be in accordance with the following require- ments: i A. Thesignand any part or parts thereof shall be located within the physical limits of the storefront of the premises of the occupant and not less than 8'- 0" above the finished surface of the walkway adjacent to such premises. B. Nosign or any part or parts thereof shall be located on the room of the shopping center. C. Nosignorany partor parts thereofshall project more 8la KENTUCKY OAKS MALL EXHIBIT B (continued) than 6" beyond the storefront. D. The maximum total area of each sign shall be deter- mined by the following formula: The area of the sign (in square feet) equals foot frontage of the store multiplied by 0.6 but, in no case, more than thirty feet (30') in width. The area of the sign is defined as the area ofa rectangle surrounding all of the letters of the sign. Where upper and lower case letters are used, the average height of the letters shall be used to determine the height of the rectangle. Foot frontage of the store is defined as the length of the facade upon which the sign is located and shall exclude any offsets in the storefront of the Demised Premises. E. No sign shall exceed a maximum brightness of 100 foot lamberts. F. _ All signs shall be fabricated and installed in compli- ance with all applicable building and electrical codes and shall bear a U. L. label. G. The outermost dimensions or letters making up the sign shall not exceed 24" (inches) in height. 6. The fabrication, installation and operation of all signs shall be subject to the following restrictions: A. No exposed neon, fluorescent and/or incandescent tubing or lamps, raceways, ballast boxes and/or electrical trans- formers, crossovers, conduit and / orsign cabinets shall be permit- ted. B. No flashing, moving, flickering and/or blinking illu- mination, animation, emission of audible sound, moving lights and/or floodlight illumination shall be permitted. C. Thenameand/orstamp ofthe signcontractororsign company, or both, shall not be exposed to view. 7. The following type signs are prohibited: 82a KENTUCKY OAKS MALL EXHIBIT B (continued) A. Paper signs and/or stickers utilized as signs. B. Signs of a temporary character or purpose, irrespec- tive of the composition of the sign or material used therefor. C. Painted or printed signs. D. Moving signs. E. Pylon signs.F. Interior identification signs located within ten feet of the storefront lease line, if such signs are visible from outside Demised Premises, including, but not limited to freestanding signs, signs on easels, shadow box or recessed storefront or vestibule signs, and fixture signs. 8. Sign shop drawings are required to be submitted to the Landlord for approval, in triplicate. 83a --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_3064%3A1. Public record. Not legal advice.