Bils v. Bils

• Decision Date: 02 May 2001
• Docket Number: No. CV-99-0463-PR.,CV-99-0463-PR.
• Citation: 200 Ariz. 45,22 P.3d 38
• Parties: Willy Bernhard BILS, a married man in his individual capacity, Plaintiff/Appellant, v. Henry Rex BILS; John Babin; and Babin And Keusink, a professional corporation, Defendants/Appellees.
• Court: Arizona Supreme Court

22 P.3d 38

200 Ariz. 45

Willy Bernhard BILS, a married man in his individual capacity, Plaintiff/Appellant, v. Henry Rex BILS; John Babin; and Babin And Keusink, a professional corporation, Defendants/Appellees.

No. CV-99-0463-PR.

Supreme Court of Arizona, En Banc.

May 2, 2001.

Louie Carrasco, Tucson, Attorney for Willy Bernhard Bils.

Bury, Moeller, Humphrey & O'Meara, by Gerard R. O'Meara and Andrew J. Petersen, Tucson, Attorneys for Henry Rex Bils, John Babin and Babin and Keusink.

Broening, Oberg, Woods, Wilson & Cass, by Donald Wilson, Jr., and Wendy N. Weigand, Phoenix, Attorneys for Amicus Curiae, Arizona Association of Defense Counsel.

OPINION

MARTONE, Justice.

I.

¶ 1 This is a civil action brought by Willy Bils, an Arizona resident, against his brother, Henry Bils, a California resident, Henry's lawyer, John Babin, an Oregon resident, and his law firm, for malicious prosecution, abuse of process, and intentional infliction of emotional distress. The dispute arose out of the probate of their mother's estate initiated by Willy in a California court.

¶ 2 Henry Bils and Babin moved to dismiss this action under Rule 12(b)(2), Ariz. R. Civ. P., for lack of in personam jurisdiction. They argued that there were no contacts with Arizona and therefore the minimum contacts requirement of the Due Process Clause was not met. The motion was supported by their affidavits, in which they stated that they were not residents of Arizona, were not physically present in Arizona in connection with any matter arising out of the California probate, and had no contact with Willy Bils in Arizona.

¶ 3 Willy Bils filed a pro per opposition to the motion to dismiss which was supported by his affidavit asserting that John Babin on two separate occasions mailed him copies of papers filed in the California probate proceeding. Opposition to Motion to Dismiss at 8-9; Affidavit of Willy Bils, Feb. 14, 1997, at 2-3, ¶ 6.

¶ 4 Henry Bils and Babin filed a reply noting that under the California Probate Code, notice must be given to a devisee as well as the lawyer representing that devisee. Opposition to Defendant's Reply to Motion to Dismiss, Feb. 27, 1997, at 2-3, ¶ 6.

¶ 5 The trial court granted the motion to dismiss. There followed a confusing array of filings by the pro per Willy Bils.

¶ 6 The court of appeals reversed by memorandum decision. Bils v. Bils, 2CA-CV-98-0023 (Sept. 23, 1999). Believing that the court of appeals erred, we granted review. Rule 23(c)(3), Ariz. R. Civ.App. P.

II.

¶ 7 Henry Bils and Babin argue that the court of appeals has read the minimum contacts requirement right out of the Due Process Clause. They claim that the court of appeals has read Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), too broadly. They further contend that Division Two took a wrong turn when it decided Bils v. Nixon, Hargrave, Devans & Doyle, 179 Ariz. 523, 880 P.2d 743 (App.1994), which involved the same Willy Bils.

¶ 8 In contrast, Willy Bils argues that Calder should be construed to mean that "[w]hen an Arizona plaintiff seeks redress in an Arizona court for an intentional tort committed by a foreign defendant, it is certainly not the number of the foreign actor's contacts with the plaintiff in Arizona that determines personal jurisdiction; instead, such jurisdiction is determined by the impact which the tortfeasor's intentional acts have on the plaintiff in Arizona—that is, the `effects' which plaintiff suffers in the state where he lives." Appellant/Respondent's Supplemental Brief at 9. Willy Bils does not argue that the service of two documents on him in Arizona were sufficient minimum contacts at all. Instead, he argues that "[r]espondent alleged the `effects' of Petitioner's intentional acts, and provided extensive supportive evidence for such through sworn affidavits.... This was all that respondent need have done for the superior court to assert jurisdiction over petitioners." Id. at 10.

¶ 9 But Calder does not support Willy Bils' expansive view. Calder was the president and editor of the National Enquirer. He and a reporter were sued in California by a California citizen claiming she had been libeled in an article written and edited in Florida. The Enquirer published a national weekly newspaper from Florida with a circulation of over five million. About 600,000 copies were sold in California.

¶ 10 In affirming jurisdiction in California, the Supreme Court noted that the Due Process Clause of the Fourteenth Amendment permits in personam jurisdiction over a defendant in any state with which the defendant has "certain minimum contacts... such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.' " 465 U.S. at 788, 104 S.Ct. at 1486 (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)). The Court stated that, in judging minimum contacts, a court properly focuses on the relationship among the defendant, the forum, and the litigation. The allegedly libelous story concerned the California activities of a California resident. "In sum," the Court said, "California is the focal point both of the story and of the harm suffered." Id. at 789, 104 S.Ct. at 1487. The Court noted that this was not untargeted negligence, but intentional action "expressly aimed at California." Id. at 789, 104 S.Ct. at 1487. The Court went on to say:

Petitioner South wrote and petitioner Calder edited an article that they knew would have a potentially devastating impact upon respondent. And they knew that the brunt of that injury would be felt by respondent in the State in which she lives and works and in which the National Enquirer has its largest circulation. Under the circumstances, petitioners must "reasonably anticipate being haled into court there" to answer for the truth of the statements made in their article.

Id. at 789-90, 104 S.Ct. at 1487.

¶ 11 Calder is a far cry from what we have here. Willy Bils was an active, willing participant in a will contest in California. His substantive allegations against the defendants are based on his receipt in Arizona of notice of challenges to his allegations in the California action. All of the defendants' underlying conduct, i.e., creation of the pleadings, occurred in California and Oregon. These defendants did not aim anything at Arizona. The only connection Arizona has to this case is that the plaintiff is a resident of Arizona. Babin only served him with filings in connection with California litigation. In one instance, California law required the service. Cal. Prob.Code §§ 1206(a)(2), 1214. In the other (the notice of appeal), it is a common courtesy to give as much notice as possible. In contrast to Calder, based upon the affidavits in support of and in opposition to the motion to dismiss, there is no way that the evidence would support a finding that these defendants expressly aimed anything at plaintiff in Arizona knowing that it would harm him. Thus, under no set of facts could it be said that Henry Bils and Babin could reasonably have anticipated being haled into court in Arizona.

¶ 12 This is not the first case in which the plaintiff Willy Bils brought an action against out-of-state defendants alleging in personam jurisdiction in Arizona. He prevailed in Bils v. Nixon, Hargrave, Devans & Doyle, 179 Ariz. 523, 880 P.2d 743 (App.1994). We need not decide the propriety of the opinion in that case. We note only that review was not sought here and, even if correctly decided, the defendant there at least called an Arizona resident from out of state seeking information that could be used unlawfully against the plaintiff. There, arguably, the defendant invaded the plaintiff's right to privacy in Arizona. But not even that expansive reading of Calder would cover the case before this court. Here we are faced with notice of legal claims in a foreign proceeding in which the plaintiff was a willing participant. The defendants aimed nothing at the plaintiff in Arizona. We reject the argument of Willy Bils, shared by the court of appeals, that an intentional tort that causes harm to an Arizona resident will always be sufficient to confer in personam jurisdiction on the Arizona courts. Under the Constitution of the United States, that is where the analysis begins, but is not where it ends.

III.

¶ 13 For the foregoing reasons, we vacate the memorandum decision of the court of appeals, and affirm the judgment of the superior court. Our disposition moots other issues presented for review.

CONCURRING: THOMAS A. ZLAKET, Chief Justice, CHARLES E. JONES, Vice Chief Justice, RUTH V. McGREGOR, Justice.

FELDMAN, J., dissenting.

¶ 14 Willy Bils claims Arizona courts can properly exercise personal jurisdiction over the out-of-state defendants in this intentional tort action under the "effects" doctrine of Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). The majority states that "Calder does not support Willy Bils' expansive view" of jurisdiction. Opinion at ¶ 9. Although Calder may not support Willy's contention that he need only "allege[ ] the `effects' of Petitioners' intentional acts, and provide[ ] extensive supportive evidence for such through sworn affidavits," given the allegations of Willy's complaint, Calder supports jurisdiction in this case. Willy's complaint for damages alleges several intentional torts; like Calder, the case was dismissed on a Rule 12.b.2 motion.¹ Thus, all allegations of the complaint must be deemed true. Luchanski v. Congrove, 193 Ariz. 176, 179, 971 P.2d 636, 639 (App.1998); see also Citizens' Comm. for Recall of Jack Williams v. Marston, 109 Ariz. 188, 192, 507 P.2d 113, 117 (1973)

.

¶ 15 In Calder, the United States Supreme Court held that the minimum contacts requirement in an intentional tort action is satisfied when the nonresident tortfeasor expressly aims its tortious conduct at the forum and the plaintiff suffers the brunt...