dissenting.
I respectfully dissent. I have no particular quarrel with the statement of the facts or with the law as determined in the cases cited. My dissent centers upon conclusions drawn by the majority from the facts and statements as to the law which are unsupported by any citation of authority. I would hold that the North Dakota courts have jurisdiction over Ross Bros, under Rule 4(b)(2)(A), (B), (C), and (H), N.D.R. Civ.P.
I disagree with the statements in the majority opinion that the contacts of Ross Bros, and Lumber Mart “were after the fact [and cannot] constitute contacts for purposes of establishing jurisdiction” and that “The contacts later by telephone and personal appearance which stem from the alleged negligent workmanship in Circle, Montana, were after the alleged negligence and as such could not have contributed to the legal cause of action.” No authority is cited for these statements, and I have found no authority for the proposition that the basis for the long-arm jurisdiction must antedate the injury caused by the tort or antedate the damage caused by the contract violation upon which the action in question is based. So far as I can tell, the rule is that any status or conduct which brings the defendant within the terms of the long-arm statute as of the time of commencement of the action is sufficient.
Many cases have held that jurisdiction may be obtained over a defendant under a long-arm statute even where the product was sold and delivered and damage was incurred before the long-arm statute was adopted. See Annot., 19 A.L.R.Sd 13, 54. If there is no constitutional bar to using a long-arm statute adopted after a tort or breach of contract has occurred and consequent damages have been suffered, there cannot be a constitutional bar to using post-tort or post-contract but pre-action activity as a basis for jurisdiction.
The majority holds that North Dakota lacks jurisdiction in part because “. the interstate transportation activity and the registration with the North Dakota *92highway department truck regulatory division and the purchasing of trip permits from such division each time it used the highways were not involved or directly related to the repair service in Montana which allegedly gave rise to the cause of action.” Again, the majority says that the contacts “were not directly related to the cause of action and do not constitute contacts for purposes of establishing jurisdiction as indicated in International Shoe, Denckla, and Shaffer, supra.” These contentions are answered by the Commissioners’ Comment to Section 1.03 of the Uniform Interstate and International Procedure Act, from which, as the majority says, our Act was adapted. The Commissioners say [13 U.L.A. Civil Proc. and Rem. Laws, at 287]:
“In sustaining the exercise of jurisdiction over a defendant who has caused injury in the state by means of a tortious act done outside the state, the courts have often emphasized that the defendant had contacts with the state that bore no relation to the particular tort. See, e. g., Green v. Robertshaw-Fulton Controls Co., 204 F.Supp. 117 (S.D. Ind. 1962); Sonnier v. Time, 172 F.Supp. 576 (W.D.La. 1959); Becker v. General Motors, 167 F.Supp. 164 (D.Md. 1958); Jenkins v. Dell Publishing Co., 130 F.Supp. 104 (W.D.Pa. 1955); Gordon Armstrong Co. v. Superior Court, 160 Cal.App.2d 211, 325 P.2d 21 (1958); Adamek v. Michigan Door Co., 260 Minn. 54, 108 N.W.2d 607 (1961); Shepard v. Rheem Mfg. Co., 249 N.C. 454, 106 S.E.2d 704 (1959).”
In view of this authority, it is obvious that the majority is incorrect in its conclusion that the Federal Constitution requires that the contacts with North Dakota relate to the cause of action. There is no such requirement.1
I further suggest that any reference to the inadmissibility of offers of compromise and the doctrine of inconvenient forum are irrelevant to the question of jurisdiction over the defendant. Even if the second repair was made in settlement of a prior dispute, there was a contract to make the repair, and such settlement contracts are enforceable. See Bohlman v. Big River Oil Co., 124 N.W.2d 835 (N.D. 1963).
Questions as to convenience of the forum arise only after jurisdiction is found to exist. Since the majority opinion finds a lack of jurisdiction, no question of convenience of forum should arise. I would defer that question until later, if and when my view as to jurisdiction is accepted.
In my view, Ross Bros. is subject to the jurisdiction of the North Dakota courts. It has “purposely avail[ed] itself of the privilege of conducting activities within the forum State” [Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283, 1298 (1958)]; and it has had the “minimum contacts” required by Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). No more is required and no new requirements (such as damages suffered after contacts occurred) should be imposed.
I would reverse and remand the case for trial, holding that jurisdiction was acquired under the long-arm rule; that Ross Bros, was transacting business in this State; it contracted to supply and did supply a service (repair) in this State; it committed a tort both within and without the State which caused injury to property within this State; and it engaged in other activities having contact with this State to the extent that the exercise of personal jurisdiction over it does not offend against traditional *93notions of justice or fair play or the due process of law. It is therefore amenable to service of process in this State, and the State court acquired jurisdiction over it by reason of the terms of Rule 4(b)(2)(A), (B), (C), and (H), N.D.R.Civ.P.
Of course, I agree that constitutional due-process requirements must be met. The majority opinion says they are not met, but does not specify in what way those requirements are lacking. As I see it, the majority opinion introduces two new requirements for jurisdiction, one that the act sued upon must be related to the contacts with the forum State, and the other that the contacts must precede the act. I find no binding or persuasive authority for either of these propositions. I am satisfied that the minimum contacts2 are present and due process is satisfied by them, and that North Dakota has jurisdiction over the defendant Ross Bros.
The majority opinion will require North Dakota residents with valid claims against nonresidents, constitutionally within the jurisdiction of North Dakota courts, to bring their actions in other States. It undoes much of the work done in providing long-arm jurisdiction over nonresident defendants.
Justice Pederson joins me in this dissent.
PEDERSON, J., concurs.. Cornelison v. Chaney, 16 Cal.3d 143, 127 Cal. Rptr. 352, 545 P.2d 264 (1976), upon which the majority relies, applies a concept unique to California, that a special jurisdiction can be acquired over a defendant not subject to general jurisdiction because its activities are not “pervasive,” if the tort relates to the limited activity of the defendant. Only California cases are cited in support of this doctrine. The majority opinion also relies on' Aaron Ferer & Sons Co. v. Atlas Scrap Iron, 558 F.2d 450 (8th Cir. 1977). At most, that case would apply only to arguments based on Rule 4(b)(2)(A). As the court in Ferer points out in fn. 7,
“. . . tort cases involve interests of the state not present in contract cases. [Citation omitted.] Nebraska’s long-arm statute also provides for jurisdictional differences between tort and contract actions.” 558 F.2d at 455.
. The contacts may be summarized as follows: Ross Bros, repaired the plaintiffs truck engine, including the replacement of the water hose. After the truck broke down again, in North Dakota, Ross agreed to, and did, come to North Dakota, take possession of the truck, and tow it to Montana. Thereafter, there were about 14 phone calls back and forth between Ross Bros. in Montana and the plaintiff in North Dakota. Finally, Ross Bros, delivered the truck, repaired for the second time, from Montana to North Dakota. Ross Bros, also frequently hauls potatoes from North Dakota to Montana, obtaining a permit from a North Dakota State agency each time it does so.