LINDSAY CONSTRUCTION LLC APPELLANT v. HEAVY HAUL LLC APPELLEE (2026)

OPINION AFFIRMING

Lindsay Construction, LLC (“Lindsay Construction”) appeals from the Carroll Circuit Court's February 24, 2025 opinion and order dismissing its claims against Z & Z Heavy Haul, LLC (“Z & Z”) for lack of personal jurisdiction. This appeal requires us to determine whether Z & Z's involvement in a single transaction for the sale of a wheel loader to a Kentucky company established sufficient contacts with this Commonwealth to permit Kentucky courts to exercise specific personal jurisdiction over it. Although the question is a close one, we conclude that Z & Z did not purposefully avail itself of the privilege of conducting activities in Kentucky so as to satisfy the requirements of federal due process. Accordingly, we affirm.

I. Background

Lindsay Construction is a Kentucky limited liability company located in Carrollton, Kentucky. Z & Z is a Michigan limited liability company. Ronny Kesmika, doing business as Ronny's Machines and More (“Ronny's Machines”), is also located in Michigan.

In October 2023, Tom Lindsay, Lindsay Construction's manager, discovered a 2016 John Deere 544K wheel loader advertised for $59,900 on Ronny's Machines’ website. According to Lindsay Construction, the advertisement represented that the loader “runs and operates.” Although Ronny's Machines advertised the loader, Z & Z owned it. Mr. Lindsay contacted Mr. Kesmika and offered to purchase the loader for $59,000. Mr. Kesmika communicated Lindsay Construction's offer to Z & Z, and it ultimately accepted it. Thereafter, Z & Z sent Lindsay Construction an invoice containing its wire-transfer information. Lindsay Construction then wired the purchase price to Z & Z's Michigan bank account.

Lindsay Construction arranged for a third-party transport broker to transport the loader from Michigan to Kentucky. When the loader arrived in Kentucky, contrary to the advertisement, the loader was inoperable. Lindsay Construction had a mechanic inspect the loader. The mechanic indicated that the loader was inoperable because the battery terminals had melted off during the last use.

On February 19, 2024, Lindsay Construction filed this action in Carroll Circuit Court against Z & Z and Kesmika/Ronny's Machines. Lindsay Construction asserted claims for fraudulent misrepresentation and negligence arising from the sale and sought $59,000 in damages or payment of the costs necessary to repair the loader. Z & Z removed the action to the United States District Court for the Eastern District of Kentucky based on diversity jurisdiction. The federal court ultimately remanded the matter back to state court after Lindsay Construction averred that it was not seeking, and would not accept, a judgment in excess of the jurisdiction amount.

Once back in state court, Z & Z moved to dismiss the claims against it for lack of personal jurisdiction. Z & Z maintained that it conducted its business entirely from Michigan, had no offices or employees in Kentucky, did not advertise the loader, and did not arrange for its transportation to Kentucky. Rather, according to Z & Z, its connection to Kentucky resulted from Lindsay Construction's decision to purchase the loader and have it transported here. Lindsay Construction opposed the motion, arguing that Z & Z knowingly and voluntarily entered into a transaction with a Kentucky company for the sale of equipment that Z & Z knew would be transported to and used in Kentucky. Lindsay Construction emphasized that Z & Z accepted its offer to purchase the loader for less than the advertised price, invoiced Lindsay Construction for the purchase, and accepted the $59,000 purchase price.

On February 24, 2025, the circuit court entered an opinion and order granting Z & Z's motion. Because the parties submitted affidavits and other materials outside the pleadings, the circuit court treated the motion as one for summary judgment. The circuit court ultimately concluded that Lindsay Construction had failed to establish sufficient minimum contacts between Z & Z and Kentucky to permit the exercise of personal jurisdiction. Accordingly, it dismissed Lindsay Construction's claims against Z & Z for lack of personal jurisdiction. Lindsay Construction's claims against Kesmika/Ronny's Machines remained pending.¹

On March 5, 2025, the circuit court entered an agreed order dismissing, without prejudice, Lindsay Construction's remaining claims against Kesmika/Ronny's Machines. The agreed order provided that it was final and appealable and that all prior interlocutory orders were likewise final and appealable. This appeal followed.

II. Standard of Review

Whether a Kentucky court may exercise personal jurisdiction over a nonresident defendant presents a question of law, which we review de novo. Hinners v. Robey, 336 S.W.3d 891, 895 (Ky. 2011); Bondurant v. St. Thomas Hosp., 366 S.W.3d 481, 483 (Ky. App. 2011).

III. Analysis

Lindsay Construction first argues that the circuit court improperly relied on matters outside the allegations contained in its complaint and resolved disputed facts without conducting an evidentiary hearing.

When personal jurisdiction is challenged, a circuit court is not confined to the allegations contained in the complaint. Rather, it may consider the complaint in conjunction with affidavits and other evidentiary materials submitted by the parties. See Berthelsen v. Kane, 759 S.W.2d 831, 831 (Ky. App. 1988). The circuit court may also conduct an evidentiary hearing to resolve disputed jurisdictional facts, but it is not required to do so. Where, as here, the circuit court elects to decide the jurisdictional question without conducting an evidentiary hearing, the plaintiff need only make a prima facie showing that personal jurisdiction exists. Hinners, 336 S.W.3d at 895. “Prima facie evidence ․ means evidence which if unrebutted or unexplained is sufficient to maintain the proposition, and warrant the conclusion to support which it has been introduced but it does not shift the general burden of proof, and stands only until the contrary is shown.” Kroger Ltd. P'ship I v. Boyle Cnty. Prop. Valuation Adm'r, 610 S.W.3d 332, 337-38 (Ky. App. 2020) (quoting Prudential Ins. Co. of Am. v. Tuggle's Adm'r, 72 S.W.2d 440, 443 (Ky. 1934)).

Accordingly, because the circuit court did not conduct an evidentiary hearing, Lindsay Construction was required only to make a prima facie showing of jurisdiction, and genuinely disputed jurisdictional facts must be viewed in its favor. This does not mean, however, that the circuit court was required to disregard Lindsay Construction's own evidentiary submissions where they clarified allegations contained in its complaint. For example, while Lindsay Construction alleged in its complaint that Z & Z delivered the loader to Kentucky, Mr. Lindsay subsequently clarified in his July 22, 2024 affidavit that Lindsay Construction contracted with an independent third party, HEAT, a heavy equipment transport broker, to have the loader picked up in Michigan and transported to Kentucky. Thus, the circuit court did not resolve a disputed fact against Lindsay Construction when it relied upon Lindsay Construction's own evidence concerning transportation of the loader. To the extent the parties’ submissions otherwise conflict concerning jurisdictionally relevant facts, however, we view those facts in Lindsay Construction's favor.

We turn, then, to whether Lindsay Construction made the requisite prima facie showing of personal jurisdiction. In resolving whether Lindsay Construction met that burden, Kentucky employs a two-step analysis to determine whether its courts may exercise personal jurisdiction over a non-resident defendant. First, the court must determine whether the plaintiff's cause of action arises from conduct or activity falling within one of the categories enumerated in Kentucky's long-arm statute, KRS ² 454.210. If the statutory requirement is satisfied, the court must separately determine whether exercising personal jurisdiction over the nonresident defendant comports with federal due process. Caesars Riverboat Casino, LLC v. Beach, 336 S.W.3d 51, 57 (Ky. 2011).

Relevant here, KRS 454.210(2)(a) permits a Kentucky court to exercise personal jurisdiction over a person as to a claim arising from, among other things, “[t]ransacting any business in this Commonwealth” or “[c]ontracting to supply services or goods in this Commonwealth[.]” KRS 454.210(2)(a)-(b). “Making telephone calls, texting, entering into contract negotiations, sending letters, and emailing are all recognized means of transacting business in the forum state.” H.E.B., LLC v. Jackson Walker, L.L.P., 587 S.W.3d 333, 341 (Ky. App. 2019).

Z & Z does not seriously dispute that its sale of the loader to Lindsay Construction falls within the reach of Kentucky's long-arm statute. Accordingly, for purposes of this appeal, we assume without deciding that Lindsay Construction has satisfied the statutory requirement and proceed to the dispositive question of federal due process.

The Due Process Clause permits a state to exercise personal jurisdiction over a nonresident defendant only when the defendant has sufficient “minimum contacts” with the forum such that maintaining the action does not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Due process allows for the exercise of either general or specific personal jurisdiction.³ Because there is no contention that Z & Z is subject to general jurisdiction in Kentucky, we are concerned only with specific jurisdiction.

Kentucky has adopted the Sixth Circuit's three-part test for determining whether the exercise of specific jurisdiction comports with due process. Hinners, 336 S.W.3d at 898 (citing Southern Mach. Co. v. Mohasco Indus., Inc., 401 F.2d 374 (6th Cir. 1968)). First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. Id. Second, the cause of action must arise from the defendant's activities there. Id. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable. Id.

The first requirement, purposeful availment, ensures that a defendant is not subjected to jurisdiction based upon “random,” “fortuitous,” or “attenuated” contacts with the forum or the unilateral activity of another party. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). The parties’ principal disagreement concerns this first requirement. Lindsay Construction argues that Z & Z purposefully availed itself of the privilege of conducting business in Kentucky because Z & Z knew Lindsay Construction was a Kentucky company and nevertheless voluntarily chose to sell the loader to it. Lindsay Construction emphasizes that, unlike the seller in Hinners, Z & Z was not obligated to sell to the highest bidder. Rather, Z & Z accepted Lindsay Construction's offer of $59,000, which was less than the advertised price, knowing that the loader would ultimately be transported to and used in Kentucky.

We agree that these facts make the jurisdictional question a close one. Nevertheless, purposeful availment requires more than knowledge that one is contracting with a resident of the forum state. “[A]n individual's contract with an out-of-state party alone” cannot “automatically establish sufficient minimum contacts in the other party's home forum.” Burger King, 471 U.S. at 478. Instead, courts examine the parties’ prior negotiations, contemplated future consequences, terms of the contract, and actual course of dealing to determine whether the defendant deliberately created a substantial connection with the forum. Id. at 479.

Viewed in that context, Z & Z's connection with Kentucky is exceedingly limited. Z & Z is a Michigan company with no offices, employees, property, bank accounts, or regular business operations in Kentucky, and no representative of Z & Z entered Kentucky in connection with this transaction. More significantly, Z & Z did not advertise the loader to Lindsay Construction. Mr. Kesmika, through Ronny's Machines and More, placed the loader on a generally accessible website, where Lindsay Construction discovered it. Lindsay Construction initiated contact with Mr. Kesmika and negotiated the purchase through him. Although Z & Z ultimately accepted Lindsay Construction's offer, Lindsay Construction wired the purchase price to Z & Z's account in Michigan, and Lindsay Construction itself arranged through an independent transportation broker to transport the loader from Michigan to Kentucky.⁴ Z & Z's principal affirmative act directed into Kentucky was emailing Lindsay Construction the invoice necessary to complete the transaction. That communication, considered together with Z & Z's knowledge that Lindsay Construction was located in Kentucky, establishes some connection with this Commonwealth. But due process requires us to distinguish between contacts with a forum resident and purposeful affiliation with the forum itself. See Walden v. Fiore, 571 U.S. 277, 284 (2014) (“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.”). Nothing about this one-time transaction contemplated an ongoing relationship between Z & Z and Kentucky or continuing obligations to be performed here. Id.

Hinners is instructive. There, a Kentucky resident purchased a vehicle advertised on eBay by a Missouri seller. Although the seller knew the vehicle would ultimately be taken to Kentucky, our Supreme Court concluded that the seller had not purposefully availed himself of the privilege of conducting activities in Kentucky. The internet advertisement was available to potential purchasers generally and created no “particular or unique relationship to Kentucky.” Hinners, 336 S.W.3d at 899. The Court ultimately characterized the transaction as a single sale whose connection to Kentucky resulted from the purchaser's residence rather than commercial activity purposefully directed toward this Commonwealth. Id. at 899-901.

The circumstances here provide no stronger constitutional connection to Kentucky. Indeed, in one important respect, Z & Z's connection is more attenuated: Z & Z did not place the internet advertisement that generated the transaction. Mr. Kesmika placed the advertisement on Ronny's Machines’ website. Z & Z's role was principally to accept Lindsay Construction's offer and receive payment in Michigan. The fact that Z & Z knew its purchaser resided in Kentucky and knew the purchaser intended to bring the loader here does not transform that isolated transaction into purposeful activity directed toward the Kentucky market. Walden, 571 U.S. at 285-91.

Federal authority addressing similar transactions supports this conclusion. In Boschetto v. Hansing, 539 F.3d 1011 (9th Cir. 2008), a California purchaser bought a vehicle from an out-of-state seller through an internet listing and independently arranged for the vehicle's transportation to California. When the vehicle arrived allegedly differing from its advertised condition, the purchaser sued in California. The Ninth Circuit concluded that the “one-shot affair,” which created no continuing obligations between the seller and the forum, did not constitute purposeful availment. Id. at 1017. Likewise, the Sixth Circuit has explained that communications with a forum resident in connection with an out-of-state transaction do not themselves demonstrate purposeful availment where the transaction lacks a substantial connection to the forum. See LAK, Inc. v. Deer Creek Enterprises, 885 F.2d 1293, 1301-03 (6th Cir. 1989); Calphalon Corp. v. Rowlette, 228 F.3d 718, 722-23 (6th Cir. 2000).

Moving on to the second requirement, the nature of Lindsay Construction's claims further demonstrates the attenuated relationship between Z & Z, Kentucky, and this controversy. Specific jurisdiction requires a relationship among “the defendant, the forum, and the litigation.” Walden, 571 U.S. at 284 (internal quotation marks and citation omitted). Lindsay Construction's fraudulent-misrepresentation claim rests on the representation that the loader “runs and operates.” But that representation appeared in general internet advertisement placed by Mr. Kesmika, not in any communication Z & Z directed to Kentucky. Likewise, Lindsay Construction's negligence claim concerns the condition of the loader and its alleged representation as operable. Neither claim is based upon a representation contained in Z & Z's invoice, the only communication that was purposefully directed to Kentucky.

The invoice, which represents Z & Z's most direct contact with Kentucky, did not warrant that the loader was operable. To the contrary, it provided that the equipment was sold “AS IS WHERE IS.” Thus, even assuming that transmission of the invoice constitutes activity purposefully directed toward Kentucky, the alleged wrongful conduct underlying Lindsay Construction's fraud and negligence claims did not occur through that communication. The operative representations instead originated in the generally accessible internet advertisement placed by Mr. Kesmika. Moreover, even assuming, for the sake of argument, that Z & Z had some role in supplying or approving the challenged language, the advertisement was not specifically directed toward Kentucky or Kentucky purchasers.

Because Lindsay Construction has not established purposeful availment, it cannot satisfy the constitutional requirements for specific personal jurisdiction. See Calphalon, 228 F.3d at 721-22 (recognizing purposeful availment as essential to specific jurisdiction). We therefore need not independently determine whether the final Mohasco requirement would support jurisdiction.

IV. Conclusion

For the foregoing reasons, we conclude that Lindsay Construction failed to establish a prima facie basis for the exercise of personal jurisdiction over Z & Z consistent with federal due process. Accordingly, the Carroll Circuit Court's February 24, 2025 opinion and order dismissing Lindsay Construction's claims against Z & Z is affirmed.

FOOTNOTES

1.   Lindsay Construction had not been able to effectively serve Kesmika/Ronny's Machines.

2.   Kentucky Revised Statute.

3.   “General jurisdiction depends on continuous and systematic contact with the forum state, so that the courts may exercise jurisdiction over any claims a plaintiff may bring against the defendant. Specific jurisdiction, on the other hand, grants jurisdiction only to the extent that a claim arises out of or relates to a defendant's contacts in the forum state.” Miller v. AXA Winterthur Ins. Co., 694 F.3d 675, 678-79 (6th Cir. 2012) (citation omitted).

4.   While Lindsay Construction alleged in its complaint that Z & Z delivered the loader to Kentucky, Mr. Lindsay subsequently clarified in his July 22, 2024 affidavit that Lindsay Construction contracted with an independent third party, HEAT, a heavy equipment transport broker, to have the loader picked up in Michigan and transported to Kentucky.

JONES, A., JUDGE:

ALL CONCUR.