BOB BERGKAMP CONSTRUCTION CO INC v. DOUBLE EXCAVATION INC (2019)

MEMORANDUM OPINION

This is an appeal by Bob Bergkamp Construction Co., Inc. (Bergkamp) of the Sedgwick County District Court's dismissal of Bergkamp's petition against Double T Excavation, Inc. (Double T). Bergkamp contends the district court erred in ruling that the court lacked personal jurisdiction over Double T, an Arkansas corporation. We affirm the district court.

Factual and Procedural Background

This factual background is based on the contents of an affidavit and exhibits provided by Bergkamp in response to Double T's motion to dismiss for lack of personal jurisdiction.

Bergkamp is a Kansas corporation with its principal place of business in Wichita. In September 2016, Bergkamp worked with a Kansas general contractor to excavate a new pond in Arkansas. Bergkamp was hired to haul away excavated fill dirt.

While in Arkansas performing the pond excavation work, Bergkamp's project manager, Ryan Wiksten, was approached by Rich Ward of Quality Trucking. Ward informed Wiksten that Double T wanted to purchase the fill dirt that Bergkamp was hauling away. In response, Wiksten gave Ward his business card which had Bergkamp's Wichita, Kansas business address.

Shortly thereafter, Wiksten received a telephone call from Todd Russell, the president of Double T. Russell advised that his company wanted to buy the fill dirt that Bergkamp was hauling away from the pond. Wiksten responded that Bergkamp would sell the fill dirt to Double T provided the parties could reach a compensation agreement. Wiksten also provided Russell his business card.

Wiksten prepared an agreement for the sale of fill dirt to Double T. He drafted the agreement in Kansas and emailed it to Double T in Arkansas. The agreement was typed on a single sheet of paper with Bergkamp's letterhead which displayed the company's Kansas address. The agreement provided that Bergkamp would haul the excavated fill dirt to locations agreed upon by the parties. The price of the fill dirt was $3 per cubic yard and each truckload would be rated at 15 cubic yards. Double T signed the agreement and returned it to Wiksten by email. Bergkamp also signed the agreement.

Three of Bergkamp's employees worked for 28 days to perform the services contracted for under the agreement. The employees drove from Kansas to Arkansas and back to Kansas on at least two occasions. An excavator owned by Bergkamp was used to complete the project. While in Kansas, Wiksten spoke to Russell over the telephone at least four times.

After Bergkamp completed the project, Russell called Wiksten at Bergkamp's Wichita office to finalize the total amount of fill dirt delivered to Double T. Wiksten emailed Russell numerous haul tickets evidencing the work performed by Bergkamp. Wiksten and Russell agreed that Bergkamp delivered 19,385 cubic yards of fill dirt to Double T. This amount was multiplied by the agreed rate of $3 per cubic yard, resulting in a total amount owed to Bergkamp of $58,155.

In November 2016, Wiksten sent an invoice to Double T for the sum of $58,155. A few months later, Double T sent a company check in the amount of $20,000 to Bergkamp. This was the only payment Double T made for the fill dirt. Wiksten called Russell several times to discuss the remaining balance but Russell did not return his calls. Wiksten followed up with two emails emphasizing the necessity for Double T to pay Bergkamp for the remainder owed.

In September 2017, Bergkamp sued Double T for the remaining balance of $38,155 in Sedgwick County District Court. Before filing an answer, Double T moved to dismiss for lack of personal jurisdiction. In response, Bergkamp asserted the district court had long-arm jurisdiction under subsections (A) and (E) of K.S.A. 2016 Supp. 60-308(b)(1), and the exercise of that jurisdiction would comply with constitutional due process.

The district court held a hearing on Double T's motion to dismiss. After considering the parties' arguments, the district court ruled that it lacked personal jurisdiction over Double T. While noting that it was a close case, the district court found there were no “contacts of a substantial connection to Kansas to invoke the long-arm jurisdiction over the defendant in Kansas under K.S.A. 60-308(b)(1)(A) or (E).” As a result, the district court granted Double T's motion to dismiss the petition. Bergkamp Construction appeals.

Personal Jurisdiction

On appeal, Bergkamp contends the district court erred by finding that it lacked personal jurisdiction over Double T.

Whether jurisdiction exists is a question of law over which this court exercises unlimited review. Fuller v. State, 303 Kan. 478, 492, 363 P.3d 373 (2015). Bergkamp has the burden of establishing personal jurisdiction over Double T. In the absence of an evidentiary hearing, when a defendant's motion to dismiss for lack of personal jurisdiction is decided prior to trial based on the pleadings, affidavits, and other written materials, any factual disputes must be resolved in the plaintiff's favor and the plaintiff need only make a prima facie showing of jurisdiction. Aeroflex Wichita, Inc. v. Filardo, 294 Kan. 258, 270, 275 P.3d 869 (2012). “An appellate court reviews a trial court's dismissal for lack of personal jurisdiction under a de novo standard.” Merriman v. Crompton Corp., 282 Kan. 433, 439, 146 P.3d 162 (2006).

Generally, a Kansas court has personal jurisdiction over a defendant if two conditions are satisfied. In re Marriage of Williams, 307 Kan. 960, 966, 417 P.3d 1033 (2018). First, Kansas law must provide a basis for exercising jurisdiction over the defendant. Second, if there is jurisdiction under Kansas law, the exercise of such jurisdiction must comply with the due process requirements of the Fourteenth Amendment to the United States Constitution. Merriman, 282 Kan. at 440.

The United States Supreme Court has recognized that a state may exercise two types of personal jurisdiction: specific and general. See Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414 n.8 and 9, 104 S. Ct. 1868, 80 L.Ed. 2d 404 (1984). “Specific jurisdiction refers to jurisdiction over causes of action arising from or related to a defendant's actions within a forum state.” Merriman, 282 Kan. at 440. “General jurisdiction refers to the power of a state to adjudicate any cause of action involving a particular defendant, regardless of where the cause of action arose.” 282 Kan. at 440. The Kansas long-arm statute provides a basis for exercising specific jurisdiction in K.S.A. 2017 Supp. 60-308(b)(1) and general jurisdiction in K.S.A. 2017 Supp. 60-308(b)(2).

In this case, Bergkamp solely argues that Kansas has specific jurisdiction over Double T. The specific jurisdiction portion of the Kansas long-arm statute, K.S.A. 60-308(b)(1), was amended in 2010. L. 2010, ch. 135, § 153. Before the 2010 amendments, this portion of the statute listed specific acts in subsections (A)-(K) that, if done within Kansas, subjected the defendant to the jurisdiction of Kansas courts. K.S.A. 2009 Supp. 60-308(b)(1).

The 2010 amendments to K.S.A. 60-308(b)(1) added subsection (L), providing that Kansas courts have jurisdiction over a defendant for claims that arise out of the defendant's activities in Kansas whenever doing so would be constitutional. See K.S.A. 2017 Supp. 60-308(b)(1)(L). But, while authorizing jurisdiction whenever doing so is consistent with due process, the Legislature did not repeal the previous subsections listing specific acts which give Kansas courts jurisdiction over a defendant. See K.S.A. 2017 Supp. 60-308(b)(1)(A)-(K); L. 2010, ch. 135, § 153. Although subsections (A)-(K) could have been repealed with the adoption of subsection (L), these subsections “provide useful guidance, and case law discussing them usually discusses the constitutional standard as well.” Concannon, Civil Code and Time Computation Changes Effective July 1, 86 J.K.B.A. 20, 24 (June 2010).

Under subsection (L), the Kansas long-arm statute is coextensive with the constitutional limitations imposed by the Due Process Clause. Stated another way, if jurisdiction is consistent with due process, Kansas' long-arm statute grants jurisdiction over a defendant. As a result, when a plaintiff utilizes K.S.A. 2017 Supp. 60-308(b)(1)(L) as a basis for jurisdiction, the long-arm statute inquiry and the constitutional due process inquiry merge. The determinate question becomes whether the exercise of jurisdiction comports with due process.

That said, Bergkamp does not contend that the district court has jurisdiction under subsection (L) of the long-arm statute. Rather, Bergkamp only relies on the specific acts enumerated in subsections (A) and (E) to argue that jurisdiction over Double T is proper under the Kansas long-arm statute.

Because Bergkamp only argues that subsections (A) and (E) of the long-arm statute apply, a two-step analysis is required to determine if Kansas courts have personal jurisdiction. Merriman, 282 Kan. at 440.

“First, the court must determine if Kansas statutes or case law provide a basis for the exercise of jurisdiction over a particular defendant. Second, if statutory and other requirements are satisfied, ‘the court inquires if the exercise of personal jurisdiction complies with the due process requirements of the Fourteenth Amendment to the United States Constitution.’ ” 282 Kan. at 440 (quoting Kluin v. American Suzuki Motor Corp., 274 Kan. 888, 894, 56 P.3d 829 [2002] ).

We will consider each step of the two-step jurisdictional analysis separately. First, we will review whether the Kansas long-arm statute provides a basis for the exercise of jurisdiction over Double T.

Long-Arm Jurisdiction

As just mentioned, Bergkamp claims that K.S.A. 2017 Supp. 60-308(b)(1)(A) and (E) provide a statutory basis for asserting jurisdiction over Double T. The statute provides, in relevant part:

“(1) Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the following acts, thereby submits the person and, if an individual, the individual's representative, to the jurisdiction of the courts of this state for any claim for relief arising from the act:

(A) Transacting any business in this state; [or]

․

(E) entering into an express or implied contract, by mail or otherwise, with a resident of this state to be performed in whole or in part by either party in this state.” K.S.A. 2017 Supp. 60-308(b)(1)(A), (E).

Even before the 2010 addition of subsection (L), our Supreme Court directed that the listed acts in the Kansas long-arm statute are to be liberally construed to allow for the exercise of jurisdiction over defendants to the full extent permitted by the Due Process Clause. Kluin v. American Suzuki Motor Corp., 274 Kan. 888, 894, 56 P.3d 829 (2002). This rule of liberal construction, however, does not suggest that a court may ignore the long-arm statute's enumerated provisions. Three Ten Enterprises, Inc. v. State Farm Fire & Cas. Co., 24 Kan. App. 2d 85, 91, 942 P.2d 62 (1997). That said, “ ‘[a] case should not be dismissed for want of jurisdiction as being outside the scope of the statute, unless by no reasonable construction of the language could it be said to fall within the statute's terms.’ ” Aeroflex, 294 Kan. at 274 (quoting J.E.M. Corp. v. McClellan, 462 F. Supp. 1246, 1250-51 [D. Kan. 1978] ).

Next, we separately consider each subsection of the long-arm statute relied on by Bergkamp to determine whether the district court had a statutory basis for asserting jurisdiction over Double T.

1. Transacting Any Business in Kansas (K.S.A. 2017 Supp. 60-308[b][1][A] )

“The transaction of business exists when the nonresident purposefully does some act or consummates some transaction in the forum state.” Anderson v. Heartland Oil & Gas, Inc., 249 Kan. 458, 467-68, 819 P.2d 1192 (1991). Our Supreme Court has found that “ ‘[b]usiness’ is transacted within the state when an individual is within or enters this state in person or by agent and, through dealing with another within the state, effectuates or attempts to effectuate a purpose to improve his economic conditions and satisfy his desires.” Volt Delta Resources, Inc. v. Devine, 241 Kan. 775, 778, 740 P.2d 1089 (1987).

Bergkamp and Double T agree that a defendant need not physically enter the State of Kansas to transact business with the meaning of K.S.A. 2017 Supp. 60-308(b)(1)(A). See Thermal Insulation Systems v. Ark-Seal Corp., 508 F. Supp. 434, 442 (D. Kan. 1980). Our court has recognized that “[w]ith the advent of modern technology, persons need not stand in each other's physical presence to transact business.” Environmental Ventures, Inc. v. Alda Services Corp., 19 Kan. App. 2d 292, 296, 868 P.2d 540 (1994). As a result, physical presence is only one factor used to consider if a defendant transacted business in Kansas. 19 Kan. App. 2d at 296.

When determining whether the defendant transacted any business in Kansas, the court examines all of the defendant's activities within Kansas that relate to the present cause of action. 19 Kan. App. 2d at 296. Bergkamp claims the following facts establish that Double T transacted business within Kansas:

• Double T knew that Bergkamp was a Kansas company and initiated the business contact with it.

• Double T received the agreement drafted in Kansas. Double T signed the agreement and returned it to Bergkamp in Kansas.

• After Bergkamp completed the work required by the agreement, Double T contacted Bergkamp to discuss the amount owed. The parties agreed on the amount due and Bergkamp sent an invoice from Kansas to Double T.

• Double T sent partial payment from Arkansas to Kansas.

• Bergkamp's employees, who are based in Kansas, provided services under the agreement.

• Bergkamp and Double T exchanged emails and telephone calls between Kansas and Arkansas.

Under similar circumstances, courts applying K.S.A. 2017 Supp. 60-308(b)(1)(A) have found that a nonresident defendant transacted business within Kansas. For example, in Environmental Ventures, a nonresident defendant faxed the Kansas plaintiff information about the defendant's aircraft, had telephone conversations with the plaintiff about the aircraft, received funds from Kansas, and mailed the plaintiff a bill of sale. Our court held that the defendant's actions amounted to transacting business for purposes of long-arm jurisdiction. 19 Kan. App. 2d at 296.

The same result occurred in Etienne v. Wolverine Tube, Inc., 12 F. Supp. 2d 1173 (D. Kan. 1998). In Etienne, a nonresident defendant called Etienne at his Kansas home and offered him a job. After the defendant mailed him a written offer of employment, Etienne and the defendant discussed the terms of the employment contract by telephone. Etienne signed the employment contract and mailed it back to the defendant. But the defendant withdrew the job offer and Etienne sued.

The federal district court found that, although the defendant did not physically enter the state, it “purposefully directed communications into Kansas in order to consummate a transaction.” 12 F. Supp. 2d at 1178. As a result, the court determined that the “defendant's negotiation of an employment contract with [Etienne] by means of communications into Kansas constitutes the transaction of business within Kansas for purposes of long-arm jurisdiction.” 12 F. Supp. 2d at 1178.

Returning to the case on appeal, when liberally construing K.S.A. 2017 Supp. 60-308(b)(1)(A)—as we must do—Double T transacted business in Kansas for the purposes of long-arm jurisdiction. Double T purposefully directed communications into Kansas to consummate a transaction by emailing the signed fill dirt agreement to Bergkamp. As the federal district court of Kansas has held: “Soliciting business and forming a contract in Kansas satisfy the Kansas long-arm statute's requirement of ‘transacting business.’ ” Vestring v. Halla, 920 F. Supp. 2d 1189, 1195 (D. Kan. 2013). As a result, K.S.A. 2017 Supp. 60-308(b)(1)(A) provides one basis for the exercise of jurisdiction over Double T.

For the sake of completeness, we next consider whether K.S.A. 2017 Supp. 60-308(b)(1)(E) provides an alternative basis for long-arm jurisdiction.

2. Entering Into a Contract With a Kansas Resident to be Performed in Kansas (K.S.A. 2017 Supp. 60-308[b][1][E] )

Under K.S.A. 2017 Supp. 60-308(b)(1)(E), a defendant submits to jurisdiction for any cause of action arising from entering into an express or implied contract with a Kansas resident to be performed in whole or in part by either party in Kansas. Subsection (E) was added in 1971 to broaden the scope of the Kansas long-arm statute and more fully extend the jurisdiction of the Kansas courts to the extent authorized by due process. L. 1971, ch. 195, § 1; Environmental Ventures, 19 Kan. App. 2d at 296-97. “This type of statute is commonly referred to as a ‘single act’ statute in that it permits the exercise of personal jurisdiction over a nonresident defendant based solely on the making or performance of a single contract within the state.” Misco-United Supply, Inc. v. Richards of Rockford, Inc., 215 Kan. 849, 851, 528 P.2d 1248 (1974).

Bergkamp claims the parties partially performed the contract in Kansas because Double T sent a partial payment to Bergkamp Construction in Kansas. Double T responds that the Kansas payment did not amount to partial performance because payment in Kansas was not a term of the contract. Instead, Double T asserts the contract was performed entirely in Arkansas.

Our court in Environmental Ventures left unresolved whether a Kansas plaintiff's single act of wire transferring funds to a nonresident defendant is sufficient to establish jurisdiction under subsection (E) when the contract did not require the plaintiff to transfer the payments from Kansas. See 19 Kan. App. 2d at 297. But, in examining the Kansas long-arm statute, the federal district court of Kansas recognized that “mere payment of funds to the resident's offices within the forum constitutes part performance by the nonresident.” Pehr v. Sunbeam Plastics Corp., 874 F. Supp. 317, 320 (D. Kan. 1995). As a result, the Pehr court held that subsection (E) allowed for jurisdiction over the nonresident defendant because the plaintiff received payment of $15,000 in Kansas from the out-of-state defendant. 874 F. Supp. at 320.

We are persuaded that Bergkamp satisfied its burden to make a prima facie showing that the parties entered into a contract to be partially performed in Kansas. It is uncontroverted that Double T sent a partial payment to Bergkamp's offices in Kansas. Subsection (E) applies to both “an express or implied contract.” K.S.A. 2017 Supp. 60-308(b)(1)(E). The payment by Double T provided circumstantial evidence that the parties agreed, either expressly or implicitly, that performance would be rendered in Kansas. See Continental American Corp. v. Camera Controls Corp., 692 F.2d 1309, 1312 (10th Cir. 1982). As a result, Kansas law provides an additional basis for jurisdiction over Double T pursuant to K.S.A. 2017 Supp. 60-308(b)(1)(E).

Having found that Kansas' long-arm statute authorizes jurisdiction over Double T, the next inquiry is whether exercising personal jurisdiction over Double T complies with due process of law. Merriman, 282 Kan. at 440.

Due Process of Law

“When specific jurisdiction is asserted under the Kansas long arm statute, K.S.A. 60-308(b), due process requires that the nonresident defendant have certain minimum contacts with the forum in order for the exercise of jurisdiction to be constitutional. In considering whether the corporation's minimum contacts meet this standard, courts should consider the quality and nature of the defendant's activity in determining whether it is reasonable and fair to require defense in the forum, rendering jurisdiction consistent with traditional notions of fair play and substantial justice. Due process requires a demonstration that the nonresident defendant purposely established minimum contacts with the forum state, thereby invoking the benefits and protections of its laws.” 282 Kan. 433, Syl. ¶ 15.

The due process analysis consists of two steps. First, the court must decide whether a defendant has such minimum contacts with Kansas that he or she should reasonably anticipate being brought into court in Kansas. Second, if the defendant has minimum contacts with Kansas, the court must determine whether exercising personal jurisdiction would offend traditional notions of fair play and substantial justice. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S. Ct. 2174, 85 L.Ed. 2d 528 (1985).

We next consider whether Double T had such minimum contacts as to reasonably anticipate being brought into court in Kansas.

1. Minimum Contacts

“The Due Process Clause protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful ‘contacts, ties, or relations.’ ” 471 U.S. at 471-72 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S. Ct. 154, 90 L.Ed. 95 [1945] ). Due process requires the plaintiff to show that “the nonresident defendant purposely established minimum contacts with the forum state, thereby invoking the benefits and protections of its laws.” In re Hesston Corp., 254 Kan. 941, Syl. ¶ 3, 870 P.2d 17 (1994). “The purposeful availment requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts.” Merriman, 282 Kan. 433, Syl. ¶ 18.

“For a State to exercise jurisdiction consistent with due process, the defendant's suit-related conduct must create a substantial connection with the forum State.” Walden v. Fiore, 571 U.S. 277, 284, 134 S. Ct. 1115, 188 L.Ed. 2d 12 (2014). The minimum contacts analysis focuses on the relationship between a nonresident defendant, the forum, and the litigation. 571 U.S. at 283-84. The relationship between the defendant and the forum state must arise out of the contacts that the “ ‘defendant himself’ ” created with the forum state. 571 U.S. at 284 (quoting Burger King, 471 U.S. at 475.)

An out-of-state defendant's contract with a Kansas resident alone is insufficient to satisfy the minimum contacts necessary to comport with due process. See Burger King, 471 U.S. at 478. Instead of focusing on the existence of the contract, the court evaluates the “prior negotiations and contemplated future consequences, along with the terms of the contract and the parties' actual course of dealing” to determine whether the defendant purposefully established minimum contacts with the forum state. 471 U.S. at 479. A state has personal jurisdiction over defendants who have “purposefully ‘reach[ed] out beyond’ their State and into another by, for example, entering a contractual relationship that ‘envisioned continuing and wide-reaching contacts’ in the forum State.” Walden, 571 U.S. at 285 (quoting Burger King, 471 U.S. at 479-80).

Moreover, there is no requirement that a defendant be physically present in the forum state for the state to obtain personal jurisdiction over the defendant. As the United State Supreme Court has stated:

“Although territorial presence frequently will enhance a potential defendant's affiliation with a State and reinforce the reasonable foreseeability of suit there, it is an inescapable fact of modern commercial life that a substantial amount of business is transacted solely by mail and wire communications across state lines, thus obviating the need for physical presence within a State in which business is conducted. So long as a commercial actor's efforts are ‘purposefully directed’ toward residents of another State, we have consistently rejected the notion that an absence of physical contacts can defeat personal jurisdiction there.” Burger King, 471 U.S. at 476.

Recently, the United State Supreme Court emphasized that the minimum contacts analysis must focus on “the defendant's contacts with the forum State itself, not the defendant's contacts with persons who reside there.” Walden, 571 U.S. at 285. “[T]he plaintiff cannot be the only link between the defendant and the forum. Rather, it is the defendant's conduct that must form the necessary connection with the forum State that is the basis for its jurisdiction over him.” 571 U.S. at 285.

Two Kansas cases are informative in applying these due process principles to the case at hand. In Misco-United, a Kansas plaintiff sold five tank liners to a nonresident defendant after the defendant had called and placed the order. The parties agreed that payment was to be made in Kansas. But the plaintiff did not manufacture or store the tank liners. Instead, the tank liners were constructed and installed outside Kansas.

Our Supreme Court in Misco-United determined that exercising personal jurisdiction over the defendant would violate due process because the defendant lacked sufficient contacts with Kansas. 215 Kan. at 854. The court emphasized that the entire performance of the contract took place outside Kansas, noting that no manufacturing occurred in Kansas and none of the tank liners were ever brought into the state. 215 Kan. at 854. “In effect, plaintiff corporation merely acted as a clearing-house for what was essentially an out-of-state transaction.” 215 Kan. at 854. The court held that merely placing an order for goods by telephone with a Kansas resident was insufficient to invoke the benefits and protections of Kansas law. 215 Kan. at 854.

In Environmental Ventures, however, our court held that exercising personal jurisdiction over the defendant complied with the Due Process Clause. 19 Kan. App. 2d at 299. In Environmental Ventures, the nonresident defendant sold an airplane to a Kansas resident. The airplane was flown back to Kansas, where the Kansas resident discovered problems with the aircraft. In finding that jurisdiction over the defendant was constitutional, our court first observed that the defendant had several contacts with Kansas, including facsimile transmissions, telephone conversations, receipt of funds from Kansas, and transfer of a bill of sale to the plaintiff in Kansas. 19 Kan. App. 2d at 298. Our court concluded that the defendant could “reasonably foresee and anticipate that any complaints about the plane would most likely originate in Kansas, the purchaser's home state.” 19 Kan. App. 2d at 299.

Applying the precedent from Misco-United and Environmental Ventures to the facts of the case on appeal, we are persuaded that Bergkamp failed to prove that Double T purposely established minimum contacts with the State of Kansas.

When considering the business transaction underlying the contract, Double T did not reach out beyond Arkansas and enter into a contractual relationship envisioning continuing and wide-reaching contacts in Kansas. Double T focused no attention on Kansas when soliciting Bergkamp's business. Instead, Double T wanted the fill dirt excavated in Arkansas and it was happenstance that the company hauling the dirt was a Kansas company. The terms of the contract and the course of the parties' dealings were also concentrated in Arkansas. Unlike the airplane imported to Kansas in Environmental Ventures, the fill dirt originated from Arkansas and was hauled to other areas in Arkansas. Although Double T mailed a partial payment to Bergkamp in Kansas, this was, by itself, insufficient to create a substantial connection with Kansas.

Bergkamp argues that personal jurisdiction over Double T is proper, in part, because Double T initiated the business relationship and it knew that Bergkamp was a Kansas company. Yet, our focus is on the defendant's contacts with the State of Kansas, not on the defendant's contacts with Kansas residents. With this in mind, Double T's contacts with Kansas included: (1) emailing the signed agreement back to Kansas; (2) at least four telephone calls with Bergkamp; (3) finalizing over the telephone the total quantity and cost of fill dirt that was delivered; and (4) mailing a partial payment to Kansas. In our estimation, these contacts were too incidental and attenuated to prove that Double T purposefully established minimum contacts with Kansas.

Double T's contacts with Kansas resemble the contacts between our state and the nonresident defendant in Misco-United. Much like the partial payment Double T made in Kansas, the parties in Misco-United agreed that payment was to be made in Kansas. Additionally, like the emailed agreement and telephone calls in this case, the nonresident defendant in Misco-United negotiated a sale transaction over the telephone. Similar to our Supreme Court's holding in Misco-United, we conclude that Double T's contacts did not invoke the benefits and protections of Kansas law.

Given our finding that Double T did not establish minimum contacts with our state, it is unnecessary for us to consider the second step in the due process analysis—whether exercising personal jurisdiction would offend “ ‘traditional notions of fair play and substantial justice.’ ” Aeroflex, 294 Kan. at 288 (quoting Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 113, 107 S. Ct. 1026, 94 L.Ed. 2d 92 [1987] ).

In summary, we find that the Kansas long-arm statute provides a basis for exercising jurisdiction over Double T because it transacted business in this state and entered into a contract with Bergkamp, a Kansas resident, to be partially performed in Kansas. See K.S.A. 2017 Supp. 60-308(b)(1)(A), (E). However, exercising jurisdiction over Double T would violate the Due Process Clause because under the facts of this case, Double T lacked minimal contacts with Kansas.

Accordingly, we hold the district court did not err by dismissing Bergkamp's petition for lack of personal jurisdiction over Double T. See Gannon v. State, 302 Kan. 739, 744, 357 P.3d 873 (2015) (If a district court reaches the correct result, its decision will be upheld even though it relied upon the wrong ground or assigned erroneous reasons for its decision.).

Affirmed.

Buser, J.: