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Lively v. IJAM, Inc. - 2005 OK CIV APP 29, 114 P.3d 487

Rule:

If after a contract is formed, additional terms are proposed by one of the parties, the additional terms are to be construed as proposals for addition to the contract. Okla. Stat. tit. 12A, § 2-207(2) (2001). If both parties to a contract are merchants, § 2-207(2) provides that the additional terms become part of the contract unless: (a) the offer expressly limits acceptance to the terms of the offer; (b) they materially alter it; or (c) notification of objection to them has already been given or is given within a reasonable time after notice of them is received. Section 2-207(3) further provides the following: Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this act.

The amount of contacts or orders originating from persons within Oklahoma must be taken into consideration when determining whether personal jurisdiction exists. Such an approach will allow a court to apply such information to determine the nature and quality of a defendant's internet activity within Oklahoma.

Facts:

A computer purchased over the telephone by V.J. Lively malfunctioned, and for the second time, Lively sent the computer back to IJAM, Inc., and Monarch Computer Systems, Inc. (collectively, “the corporations”), for repair and claimed that he never received the computer back or any refund from the corporations. The invoice sent to Lively contained a forum selection clause stating that exclusive jurisdiction was in Georgia. The trial court entered judgment in favor of Lively.

Issue:

Did the trial court properly determine that it had in personam jurisdiction over Georgia corporations?

Answer:

No

Conclusion:

The court reversed and remanded the case for further proceedings. The court held that a contract of sale existed between the parties prior to the receipt of the invoice and that Okla. Stat. tit. 12A, § 2-207(2) (2001) required that both parties be merchants for it to apply. There was no indication that Lively expressly accepted the terms, and, therefore, the terms of the invoice did not become part of the contract. Although Lively placed his order via telephone, he received the contact information from the corporations' website. The only alleged contact that the corporations had with Oklahoma was the sale of the computer to Lively. The amount of contacts or orders originating from persons within Oklahoma must be taken into consideration when determining whether personal jurisdiction exists. Such an approach will allow a court to apply such information to determine the nature and quality of a defendant's internet activity within Oklahoma. Thus, the court could not determine if the corporations' purported activity constituted the minimum contacts required by Oklahoma's long-arm statute and the Due Process Clause.

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