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Kluin v. American Suzuki Motor Corporation11/1/2002
r to the jurisdiction of the courts of this state as to any cause of action arising from such consumer transaction."
K.S.A. 50-626(a) prohibits a "supplier" from engaging in any deceptive act or practice in connection with a consumer transaction." The KCPA defines "supplier" as a "manufacturer, distributor, dealer, seller, lessor, assignor, or other person who, in the ordinary course of business, solicits, engages in or enforces consumer transactions, whether or not dealing directly with the consumer." K.S.A. 50-624(j). A "consumer transaction" is a "sale, lease, assignment or other disposition for value of property or services within this state . . . to a consumer; or a solicitation by a supplier with respect to any of these dispositions." (Emphasis added.) K.S.A. 50-624(c).
Kluin contends that a "solicitation" in this case would include magazine advertisements and Internet web site information. He would also include in the definition of "solicitation" the promotional literature that was disseminated to a Kansas resident by telephone and fax from an authorized Suzuki dealer. The KCPA defines a "consumer telephone call" as "a call made by a telephone solicitor to the residence of a consumer for the purpose of soliciting a sale of any property or services . . . ." K.S.A. 2001 Supp. 50-670(a)(1).
Kluin cites Watkins v. Roach Cadillac, Inc., 7 Kan. App. 2d 8, 637 P.2d 458 (1981), rev. denied 230 Kan. 819 (1982), arguing that the sale of property to a Kansas consumer does not have to take place within the state of Kansas. We agree. However, Kluin's reliance on Roach Cadillac is misplaced. Roach Cadillac is readily distinguishable from the facts here and thus does not advance Kluin's argument. Personal jurisdiction over a nonresident defendant is determined on a case-by-case basis. Schlatter, 233 Kan. at 336. Roach Cadillac involved a significantly different fact situation from that of Kluin's Oklahoma purchase.
A review of the facts in Roach Cadillac is appropriate. Watkins was a resident of Prairie Village, Kansas, a city on the Kansas-Missouri state line. Roach Cadillac was a Missouri corporation with its place of business across the state line in Kansas City, Missouri. A portion of Roach Cadillac's business premises was located in Kansas. Cars were parked and displayed to customers on the Kansas side of the state line.
Roach Cadillac advertised over a Kansas City, Missouri, radio station and in a Kansas City, Missouri, newspaper, soliciting customers to lease its vehicles. In response to this advertising, Watkins leased a Cadillac. He was shown the car as it was parked in Kansas. The salesman took Watkins on a test drive in Kansas, explaining various features of the Cadillac while on the test drive. A substantial number of statements in solicitation of the lease were made in Kansas.
Several days after the test drive, Watkins completed the lease transaction while sitting in the Roach Cadillac Missouri office. A few months after taking delivery of the car in Missouri, Watkins noticed cracking paint. He discovered that the car had been partially repainted. He sued Roach Cadillac under the KCPA. Roach Cadillac held that the solicitations for the lease occurred in Kansas, the Cadillac was shown and test driven in Kansas, and the KCPA applied. 7 Kan. App. 2d at 13.
Here, Kluin telephoned Bartlesville Cycle Sports in Oklahoma and spoke to a salesperson. In response, the salesperson told Kluin about the Suzuki motorcycle and faxed information to him. Neither the Oklahoma dealership nor Suzuki solicited Kluin in Kansas by phoning him or sending him an unsolicited fax.
In his affidavit, Kluin asserted that he acquired infor
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