Packaging Systems and Enterprises, Inc. v. Operational Solutions, Inc.

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NOT DESIGNATED FOR PUBLICATION

No. 117,930

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

PACKAGING SYSTEMS AND ENTERPRISES, INC.,
Appellee,

v.

OPERATIONAL SOLUTIONS, INC.;
OPERATIONAL SERVICES, LLC;
KENT GOSS, JOHN DOE I-X;
ABC PARTNERSHIP I-X; and
XYZ CORPORATION I-X,
Appellants.


MEMORANDUM OPINION

Appeal from Miami District Court; STEVEN C. MONTGOMERY, judge. Opinion filed June 8, 2018.
Affirmed.

Anthony L. Gosserand, of Van Osdol, PC, of Kansas City, Missouri, for appellants.

Keith Witten and Carol Z. Smith, of Gilliland & Hayes, LLC, of Overland Park, for appellee.

Before ARNOLD-BURGER, C.J., GREEN, J., and HEBERT, S.J.

PER CURIAM: Packaging Systems and Enterprises, Inc., a New Jersey Corporation,
(Packaging Systems) filed a complaint in the Superior Court of New Jersey, Law
Division, Cumberland County, against Operational Solutions, Inc.; Operational Services
LLC; and Kent Goss (the Appellants), alleging breach of a contract and other related
causes of action arising out of a contract for repair and refurbishing of a machine owned
by Packaging Systems. Appellants failed to appear in the New Jersey lawsuit and a
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default judgment was entered by the New Jersey court. Packaging Systems thereafter
registered their New Jersey judgment in Kansas. Appellants filed a response in the Miami
County District Court seeking to quash the foreign judgment for lack of jurisdiction over
some or all of them.

After a non-evidentiary hearing, the district court found that the New Jersey court
had personal jurisdiction over the Appellants and that the New Jersey judgment was
entitled to full faith and credit in Kansas. The Appellants appealed from this ruling.

We affirm the findings and judgment of the district court.

Factual and Procedural Background

The parties filed statements of facts, supported by affidavits, along with various
motions and responsive pleadings, and the district court set forth detailed findings of fact
and conclusions of law from which the background of the litigation is ascertained.

In May 2013, Operational Solutions, Inc. (Operational Solutions), through its
President, Kent Goss, sent a quote to Lee Morrow of Packaging Systems regarding
refurbishing and upgrading an SBO 1 (Machine). Goss was a resident of Kansas.
Operational Solutions was a Kansas Corporation doing business in Kansas City,
Missouri, at the time this case was initiated. In the time since, Operational Solutions'
corporation status was forfeited for failing to make a required annual report to the Kansas
Secretary of State. Goss is also a member of Operational Services, LLC (Operational
Services), a limited liability company doing business at the same address as Operational
Solutions. Packaging Systems is a corporation registered and operated in New Jersey.

Packaging Systems claimed its first contact with Operational Solutions occurred in
December 2012 when Michael Salerno of PET-Inc. (PET) contacted Morrow.
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Apparently, PET "utilized Operational Solutions as its installing and training entity." This
information comes from Morrow's affidavit, which states:

"Packaging Systems' first contact with [Operational Solutions] occurred in
December 2012, when Michael Salerno of PET-Inc. contacted me prior to me contacting
Operational Solutions, Inc. regarding the refurbishment of an SBO-2/3. PET-Inc. utilized
Operational Solutions, Inc. as its installer and training entity. I have attached a screen
capture of the PET-Inc. used equipment page webpage that states, 'NOTE: PET INC
Provides installation and training of Blow Molders by Engineering group Operational
Solutions[,] Inc.'"

A copy of the webpage is included in the record but is extremely difficult to read.
The portion addressed with a note appears to read "Engineering group OSI" without
designating what OSI means.

In early January 2013, Morrow received an email from Salerno, again referring to
Operational Solutions. Salerno's email forwarded an email from Hope Air Systems, LLC,
which contained a quote regarding specifications available for SBO-2/3H-3L machines
that was sent to Goss for Operational Solutions. According to Operational Solutions, it
never had a contractual relationship with PET. Operational Solutions also stated PET
never utilized Operational Solutions as a training entity; instead PET would "refer its
customers to Operational Solutions."

According to Morrow, he and Goss discussed installation and training in
connection with the refurbished Machine. At that time, Goss stated he would provide a
cost to Packaging Systems as the time to ship the Machine, 12-14 weeks later, drew
closer. Goss disputes this, stating he "does not recall there being any communications
during any initial phone calls between Operational Solutions and Morrow regarding the
costs of any training, installation or travel regarding the Machine." According to the
Appellants, neither Goss nor Operational Solutions provided a quote to Morrow for any
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training costs on the Machine prior to October 1, 2013. An email sent on October 1,
2013, from Goss to Morrow specifically states:

"I have included an estimate you requested for startup assistance, we decided that with
the delay in timing on our part I will offer you a 50% labor discount up to the first 7 days
of startup/training at your facility in Blackwood [New Jersey] and as always travel
related expenses are estimates and billed at actual cost."

A quote with the same October date indicates Operational Solutions was contemplating
traveling to New Jersey, staying for nine days, and providing man hours to Packaging
Systems.

In May 2013, Operational Solutions provided Packaging Systems a quote to
refurbish and upgrade the Machine to a "like new condition." In addition, Operational
Solutions was to "upgrade the heating capability from 8 to 10 zones, add base over
stroke, Heat Set capability, and preferential capability and a new HMI touch screen." The
quote specifies that "[a]ll work is FOB Kansas City." Further, the quote does not contain
any information regarding installation, training, or travel to New Jersey. Packing
Solutions characterizes the project to "result in a completely custom Machine with
custom Machine parts as well as software" and "only people who would have any
operating knowledge of the system would be Operational Solutions personnel who
refurbished it." Appellants disagree, stating the Machine would be refurbished to "like
new" condition and include "other industry standard items." Therefore, anyone with
industry knowledge could install, operate, and provide training on the Machine.
Operational Solutions' quote was accepted by Packaging Systems.

Packaging Systems was located within the "Urban Economic Development Zone"
(UEZ) of Vineland and Millville, New Jersey. "The UEZ Program offers incentives to
participating businesses that encourage business growth and stimulate the local
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economy." The money that Packaging Systems used to pay Operational Solutions for the
work on the Machine was provided primarily by the UEZ Program. Packaging Systems
alleged that Goss was aware as early as February 2013 that the funding was based on a
loan from the UEZ Program. The Appellants disagree in part, stating Goss only became
aware after the quote was accepted and the Machine was delivered to Operational
Solutions. Any money Operational Solutions received regarding the Machine came
directly from Packaging Systems. Packaging Systems had the Machine shipped to
Operational Solutions in Kansas City, Missouri, from India.

A large number of emails were exchanged between Goss, on behalf of Operational
Solutions, and Packaging Systems between February 2013 and the initiation of the
present case. The emails indicate the terms of the contract were modified a number of
times, with Operational Solutions seeking advanced payment in return for cheaper
replacement parts and changes to the work done. The emails also indicate the relationship
between Operational Solutions and Packaging Systems was clearly deteriorating because
Operational Solutions was unable to meet the promised deadline to refurbish the
Machine.

Additionally, Packaging Systems alleges that Operational Solutions, primarily
through Goss, called Packaging Systems' offices in New Jersey at least 10 times.
Appellants disagree, stating that Operational Solutions did not initiate a majority of those
calls and that any calls made were in response to messages requesting a call back.

Packaging Systems never received the Machine from Operational Solutions,
prompting Packaging Systems to file a complaint in the Superior Court of New Jersey,
alleging: (1) Breach of Contract; (2) Breach of Implied Covenant of Good Faith and Fair
Dealing; (3) Promissory Estoppel; (4) Unjust Enrichment/Quantum Meruit; (5) Fraud; (6)
Negligent Misrepresentation; (7) Conversion by Bailee; (8) Breach of Fiduciary Duty; (9)
two counts of Violation of the Consumer Fraud Act; (10) and Violation of New Jersey's
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Civil RICO Act. Packaging Systems also alleged that the actions of the Appellants "are
indistinguishable from the actions of each other, with each acting as the alter ego of the
other, such that the conduct of one should be considered the conduct of all." Operational
Solutions appears to have begun the process to retain counsel to address the New Jersey
lawsuit. However, the Appellants failed to appear and default judgment was entered
against them. Packaging Systems registered the New Jersey judgment in Kansas under
the Uniform Enforcement of Foreign Judgments Act. In response, the Appellants filed
"suggestions in support of defendant's . . . motion to quash foreign judgment," arguing
New Jersey lacked personal jurisdiction over the Appellants. A series of responses,
affidavits, and other documentation followed from both sides. The Appellants also argued
that even if the district court found personal jurisdiction existed for one defendant that did
not necessarily mean it existed for all defendants.

Prior to a hearing, the Appellants emailed the district court asking whether there
would be an evidentiary hearing on the motions; the district court responded by inquiring
whether the parties wanted an evidentiary hearing. The Appellants responded, stating
they were "willing to rely upon the affidavits submitted in our various pleadings."

A hearing was held on the issue, but no additional evidence or witnesses were
presented. At the hearing, the Appellants' counsel briefly discussed Goss' litigation
history in the following conversation:

"THE COURT: Well, this court is not unfamiliar with Mr. Goss. He's sort of a
frequent-flyer litigant in my court since I do all of the Chapter 60 assignments in Miami
County. He gets around. So, I know that Mr. Goss knows how to get around in and out of
courts and has multiple experiences in civil law. So the specter of him gaming this system
is over there in the corner of the room.
"MR. GOSSERAND: Your Honor, I would just argue that the Court shouldn't
take Mr. Goss' past litigation history into account. This is a matter of constitutional rights
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that are enjoyed by my three defendant [sic]—my three clients in this case, Operational
Solutions, Operational Services and Mr. Goss.
"THE COURT: Well, and I know. But when you try to cast your client out as, oh,
he was just a naive guy, he didn't know how they contacted him, he didn't know what was
going [on], he didn't have any idea this had anything to do with New Jersey, it was just
some machine in India, you know—you know, I'm not buying the naivete.
"MR. GOSSERAND: Your Honor, if I—if I indicated in my oral argument that
my client was naive or through my pleadings—
"THE COURT: Okay.
"MR. GOSSERAND: —that was not my intent."

Ultimately, the district court denied the Appellants' motion to quash the judgment,
finding that New Jersey had personal jurisdiction over the Appellants. In making its
ruling, the district court stated it was "going to adopt the statement of facts that are
contained in [Packaging Systems'] memorandum."

The district court entered a 13-page journal entry on June 14, 2017, setting forth
its findings of fact and conclusions of law. The Appellants timely appealed from this
judgment.

The district court did not err in determining New Jersey had personal jurisdiction of the
Appellants.

Whether the judgment of another state is entitled to full faith and credit is a
question of law subject to unlimited review. Master Finance Co. of Texas v. Pollard, 47
Kan. App. 2d 820, 826, 283 P.3d 817 (2012).

An appellate court exercises unlimited review on the facts when they are based
upon written or documentary evidence such as: "pleadings, admissions, depositions, and
stipulations." Heiman v. Parrish, 262 Kan. 926, 927, 942 P.2d 631 (1997).

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When the court of another state enters a proper judgment, that foreign judgment is
entitled to the same force and effect in Kansas as it would be given in the other state. U.S.
Const. art. IV, § 1; Hamilton v. Netherton, 194 Kan. 683, 685, 401 P.2d 657 (1965).
However, the judgment of another state is not entitled to full faith and credit when the
other state did not have jurisdiction to render a judgment. Durfee v. Duke, 375 U.S. 106,
110-11, 84 S. Ct. 242, 11 L. Ed. 2d 186 (1963); see In re Estate of Reynolds, 266 Kan.
449, 454-55, 970 P.2d 537 (1998). The same rule applies to actions brought under the
Uniform Enforcement of Foreign Judgments Act. See National Equip. Rental, Ltd. v.
Taylor, 225 Kan. 58, 60, 587 P.2d 870 (1978).

The burden to prove the foreign court did not have jurisdiction rests solely on the
parties challenging the foreign judgment. See Brockman Equipment Leasing, Inc. v.
Zollar, 3 Kan. App. 2d 477, 482, 596 P.2d 827 (1979). As the Kansas Supreme Court
stated:

"'Collateral attacks upon judicial proceedings are never favored, and where such attacks
are made, unless it is clearly and conclusively made to appear that the court had no
jurisdiction, or that it transcended its jurisdiction, the proceedings will not be held to be
void but will be held to be valid.'" (Emphasis added.) 3 Kan. App. 2d at 482 (quoting
Jones v. Jones, 215 Kan. 102, Syl. ¶ 4, 523 P.2d 743, cert. denied 419 U.S. 1032 [1974]).

When determining whether the foreign court's judgment was proper, the
"nature, validity, and finality are to be tested by the law of the jurisdiction where
the judgment was rendered." Johnson Brothers Wholesale Liquor Co. v.
Clemmons, 233 Kan. 405, 409, 661 P.2d 1242 (1983). Therefore, this court must
determine whether New Jersey had personal jurisdiction over the Appellants based
on New Jersey law.

New Jersey courts "exercise personal jurisdiction over a non-resident defendant
'consistent with due process of law.'" Baanyan Software Services, Inc. v. Kuncha, 433
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N.J. Super. 466, 473, 81 A.3d 672 (2013) (quoting New Jersey Supreme Court Rule 4:4-
4[e]). While the New Jersey rule has been amended, the substance remains the same. See
New Jersey Supreme Court Rule 4:4-4. Essentially, "New Jersey's long arm jurisdiction
extends 'to the uttermost limits permitted by the United States Constitution.'" Baanyan,
433 N.J. Super. at 473 (quoting Avdel Corp. v. Mecure, 58 N.J. 264, 268, 277 A.2d 207
[1971]).

The constitutional standard to determine whether personal jurisdiction exists starts
with the test set out by the United States Supreme Court in International Shoe Co. v.
Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945). The Court held:

"[D]ue process requires only that in order to subject a defendant to a judgment in
personam, if he be not present within the territory of the forum, he have certain minimum
contacts with it such that the maintenance of the suit does not offend 'traditional notions
of fair play and substantial justice.'" 326 U.S. at 316 (quoting Milliken v. Meyer, 311 U.S.
457, 463, 61 S. Ct. 339, 85 L. Ed. 278 [1940]).

There is no question the Appellants were not present in New Jersey. Therefore,
they must have had minimum contacts with New Jersey in order for New Jersey to have
personal jurisdiction over the suit. See 326 U.S. at 316.

Personal jurisdiction can be either general or specific. General jurisdiction can be
asserted when a parties' contacts with the forum state are so "'continuous and systematic'
as to render them essentially at home in the forum State." Goodyear Dunlop Tires
Operations, S.A. v. Brown, 564 U.S. 915, 919, 131 S. Ct. 2846, 180 L. Ed. 2d 796 (2011).
Packaging Systems does not assert the Appellants had contacts with New Jersey
sufficient to establish general jurisdiction.

On the other hand, specific jurisdiction exists when a three-part test is met. First,
the defendant must "purposefully avail[] itself of the privilege of conducting activities
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within the forum State, thus invoking the benefits and protections of its laws." Hanson v.
Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958). Second, the
plaintiff's claim must "arise out of or relate to" at least one of those specific activities.
Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414, 104 S. Ct. 1868, 80 L.
Ed. 2d 404 (1984). Third, the court may consider additional factors to ensure that
asserting jurisdiction "comport[s] with '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)
(quoting International Shoe, 326 U.S. at 320). Those factors may include:

"'[T]he burden on the defendant,' 'the forum State's interest in adjudicating the dispute,'
'the plaintiff's interest in obtaining convenient and effective relief,' 'the interstate judicial
system's interest in obtaining the most efficient resolution of controversies,' and the
'shared interest of the several States in furthering fundamental substantive social policies.'
[Citation omitted.]" Burger King, 471 U.S. at 477.

The overarching consideration in applying the Burger King test is the common-
sense observation that in order for specific jurisdiction to attach, an individual's "conduct
and connection with the forum State are such that he should reasonably anticipate being
hailed into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297,
100 S. Ct. 559, 62 L. Ed. 2d 490 (1980).

Determining whether personal jurisdiction exists is a fact-intensive exercise. As
the United States Supreme Court explained: "Like any standard that requires a
determination of 'reasonableness,' the 'minimum contacts' test of International Shoe is not
susceptible of mechanical application; rather, the facts of each case must be weighed to
determine whether the requisite 'affiliating circumstances' are present." Kulko v.
California Superior Court, 436 U.S. 84, 92, 98 S. Ct. 1690, 56 L. Ed. 2d 132 (1978).
Further, the determination is rarely written "'in black and white. The greys are dominant
and even among them the shades are innumerable.'" Kulko, 436 U.S. at 92 (quoting Estin
v. Estin, 334 U.S. 541, 545, 68 S. Ct. 1213, 92 L. Ed. 1561 [1948]). Additionally, the
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unilateral activity of another party is not enough to create personal jurisdiction in the
forum state. Helicopteros, 466 U.S. at 417.

However, it is important to note that there is no requirement the individual be
physically present in the forum state in order for personal jurisdiction to apply. As the
United States Supreme Court stated:

"[I]t 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. [Citations omitted.]" Burger King, 471
U.S. at 476.

The Court also stated personal jurisdiction is proper

"where the contacts proximately result from actions by the defendant himself that create a
'substantial connection' with the forum State. Thus where the defendant 'deliberately' has
engaged in significant activities within a State, or has created 'continuing obligations'
between himself and residents of the forum, he manifestly has availed himself of the
privilege of conducting business there, and because his activities are shielded by 'the
benefits and protections' of the forum's laws it is presumptively not unreasonable to
require him to submit to the burdens of litigation in that forum as well. [Citations
omitted.]" Burger King, 471 U.S. at 475-76.

It is against this established background that we consider whether the Appellants
have met their burden to show New Jersey did not have personal jurisdiction over the
case.

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In this particular case, the Appellants did not meet their burden to show New
Jersey lacked personal jurisdiction over the suit. First, there was evidence to support a
finding the Appellants purposefully directed their activities toward New Jersey. PET
contacted Packaging Systems in late 2012 and early 2013 regarding a business
opportunity. There were numerous emails exchanged between the parties over a period of
several months. The terms of the deal were altered several times. Some of the emails
reference phone calls between the parties. The Appellants were also clearly aware
Packaging Systems was located in New Jersey. Throughout the course of their dealings,
quotes were sent to Packaging Systems with an address in New Jersey. Morrow's email
address signature also contained a New Jersey address in some of his emails. In at least
one of Goss' emails, he discussed the timing and costs of traveling to New Jersey for
training and installation of the Machine.

Although neither Goss nor any other agent of the Appellants apparently ever
physically entered New Jersey, the continuing obligations they created with Packaging
Systems clearly availed the Appellants of the privilege of conducting business in New
Jersey; with that privilege comes the burden of litigation. See Burger King, 471 U.S. at
476-77. The Appellants argue the contacts were the result of unilateral actions by
Packaging Systems, but it is clear that there was give-and-take in the business
relationship. The Appellants were not passively receiving information from Packaging
Systems but instead were actively engaged in contractual negotiations from the beginning
to the very end of the relationship. Significantly, the agreement here did not contain any
provision designating which state's law would control and there was no involvement of
any state other than Kansas and New Jersey.

The Appellants pursued a business relationship with Packaging Systems, had
numerous contacts with New Jersey, and communicated extensively with contacts in the
foreign state. New Jersey clearly had a substantial interest in adjudicating the case
because the case involved money meant to be used to better its own state.
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Asserting personal jurisdiction in New Jersey would serve the interest of "'fair
play and substantial justice.'" Burger King, 471 U.S. at 476. New Jersey had an interest in
adjudicating the dispute because the contract involved government funds at some level
and involved a subsidized New Jersey business which was impacted by the Appellants'
actions. Goss was forewarned New Jersey was, at some level, asserting its interest in the
business relationship as evidenced by Morrow's email, which advised: "We need to have
this resolved immediately. You have had our money and the unit for far too long. The
State and local officials are talking about filing a law suit against your organization."

All things considered, the Appellants should have reasonably foreseen the
possibility, if not probability, of being hailed into New Jersey court in the event of a
breach of their agreement with Packaging Systems, especially given their continuing
obligations and frequent modifications to the agreement. See World-Wide Volkswagen,
444 U.S. at 297. The Appellants do not include any information suggesting how much of
a burden, if any, it would have been to litigate the dispute in New Jersey. The record
indicates they did at least contemplate addressing the suit in New Jersey given the fact
they began retaining New Jersey counsel.

The Appellants faced a heavy burden to prove New Jersey did not have
jurisdiction and the judgment was not entitled to full faith and credit. Brockman
Equipment Leasing, 3 Kan. App. 2d at 482. Given the established caselaw and based on
our own standard of unlimited review, we find the Appellants failed to meet the burden to
show that New Jersey did not have the requisite personal jurisdiction. Accordingly, the
judgment is entitled to full faith and credit in the courts of Kansas.

The district court did not err in finding the acts of one appellant were indistinguishable
from the acts of the others.

The Appellants also argue as a corollary to their jurisdictional argument that the
district court improperly concluded the acts of one appellant were indistinguishable from
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the acts of the other appellants. However, they do not provide any evidence or caselaw
specifically supporting their contention that in this instance, the acts of one of them are
not attributable to the others. This would implicate the rule that a point raised incidentally
in a brief and not fully argued therein is deemed abandoned. Friedman v. Kansas State
Bd. of Healing Arts, 296 Kan. 636, 645, 294 P.3d 287 (2013).

In any event, Packaging Systems essentially argues their initial complaint in New
Jersey was enough to make a prima facie case for personal jurisdiction over all of the
Appellants and cites to Allen v. V & A Bros., Inc., 208 N.J. 114, 132-33, 26 A.3d 430
(2011), noting New Jersey recognizes the alter ego doctrine as a basis for finding liability
against others who act through a defendant. The Appellants offer nothing to contradict
Packaging Systems' contention the Appellants are essentially one and the same.

The district court properly adopted Packaging Systems' proposed statement of facts.

The Appellants argue the district court erred by adopting Packaging Systems'
statement of facts in reaching its decision.

The Appellants introduce this argument by briefly mentioning the district court
erred in referring to Goss' past litigation history during the hearing. However, the
Appellants do not pursue this argument, and the district court made it clear that it was
aware it could not consider Goss' prior litigation history. Significantly, the Appellants
never requested the district court judge disqualify, and, in fact, specifically agreed the
district court judge would hear the case.

The remainder of the Appellants' procedural argument raises the doctrine of
invited error. Whether the doctrine of invited error applies presents a question of law over
which we exercise unlimited review. State v. Hankins, 304 Kan. 226, 230, 372 P.3d 1124
(2016). Generally, when a party has invited error, the error cannot be complained of on
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appeal. Thoroughbred Assocs. v. Kansas City Royalty Co., 297 Kan. 1193, 1203-04, 308
P.3d 1238 (2013).

The Appellants cite to Aeroflex Wichita, Inc. v. Filardo, 294 Kan. 258, 268-69,
275 P.3d 869 (2012), in support of their argument that a district court cannot make
credibility determinations based solely on affidavit testimony. However, the procedural
posture of Aeroflex is significantly different. In Aeroflex, the court was considering an
original motion under K.S.A. 60-212(b)(2) to dismiss for lack of jurisdiction a lawsuit
filed in Kansas. Here, the proceeding involves the enforcement of a foreign judgment
already entered. The Appellants had the opportunity to file a motion to dismiss in the
original New Jersey action, apparently considered doing so, and decided not to appear in
the New Jersey action. This resulted in entry of judgment against them. The Appellants
now have the burden of proof since they are seeking relief against Packaging Systems. It
would seem appropriate that any factual disputes in the competing affidavits and
pleadings would be resolved in favor of Packaging Systems as the party against whom
relief is sought. See Thoroughbred Assocs., 297 Kan. 1193, Syl. ¶¶ 1-2.

Here, the district court actually conducted a hearing and received the arguments of
counsel based on the evidence as submitted. It weighed the evidence and made
appropriate findings of fact to support its conclusions of law. It is clear that if the district
court indeed somehow erred in its procedure, any such error was invited by the
Appellants. Counsel for the Appellants contacted the district court prior to the hearing
and asked whether evidence would be presented at the hearing. The district court left the
choice up to counsel. Counsel chose to "rely upon the affidavits submitted in our various
pleadings." Simply put, the Appellants cannot come to this court and complain that it was
error for the district court to rely on the affidavits when the Appellants asked the court to
do just that.

Affirmed.