Bird v. Hiller

• Decision Date: 11 April 1995
• Docket Number: No. 94-450,94-450
• Citation: 270 Mont. 467,892 P.2d 931
• Parties: Philip A. BIRD and Cara Bird, Plaintiffs and Appellants, v. M.B. "Buck" HILLER, Defendant and Respondent.
• Court: Montana Supreme Court

Page 931

892 P.2d 931

270 Mont. 467

Philip A. BIRD and Cara Bird, Plaintiffs and Appellants, v. M.B. "Buck" HILLER, Defendant and Respondent.

No. 94-450.

Supreme Court of Montana.

Submitted on Briefs Dec. 28, 1994.

Decided April 11, 1995.

Dale F. Myers, Helena, for appellants.

Richard E. Gillespie, Keller, Reynolds, Drake, Johnson & Gillespie, Helena, for respondent.

NELSON, Justice.

Appellants, Philip A. Bird and Cara Bird, appeal from a decision and order of the First Judicial District Court, Lewis and Clark County, dismissing their complaint against Respondent, M.B. "Buck" Hiller for lack of personal jurisdiction. We affirm.

The issue on appeal is whether Montana has personal jurisdiction over Mr. Hiller pursuant to Rule 4B(1)(b), M.R.Civ.P.

The underlying events leading up to this action commence in September 1989, when Carolyn Bird, Mr. Bird's wife, and their adult daughter Cara Bird, were involved in an automobile accident in Idaho. The Birds were Montana residents at all times relevant to this action. After receiving a referral from an attorney in Helena, Montana, Mr. Bird contacted Mr. Hiller, an Idaho attorney, regarding Hiller's potential representation of Mr. Bird, Carolyn and Cara in connection with the automobile accident. Mr. Bird travelled to Idaho and met with Mr. Hiller to discuss the claims arising out of the accident.

On or about May 16, 1991, Mr. Hiller sent a contingency fee agreement to Mr. Bird in Montana. Mr. Bird signed the contingency fee agreement in Montana, and it was sent to Mr. Hiller who received it at his Idaho office. Cara, however, did not sign the contingency fee agreement nor was her name mentioned in the agreement. Mr. Hiller then undertook representation of Mr. Bird, Carolyn and Cara regarding the automobile accident. Mr. Hiller filed a verified complaint which was signed by Mr. Bird, Carolyn and Cara in the United States District Court for the District of Idaho on June 28, 1991. Prior to trial, Mr. Hiller negotiated settlements of the Birds' claims. Sometime after the settlements were executed, the Birds contacted Dale F. Myers, a Helena attorney, and a disagreement arose over the settlement. Subsequently, on July 7, 1992, Mr. Hiller moved to withdraw as counsel, and advised the defendants in the underlying automobile case that the Birds were reluctant to move forward with the settlement agreement.

Thereafter, the defendants in the underlying automobile case moved to enforce the settlement agreement. On July 10, 1992, Mr. Myers filed a motion for admission pro hac vice in the United States District Court for the District of Idaho. The case was called before the Idaho court, and the court issued a default judgment on May 5, 1993, in favor of the defendants' motion for enforcement of the settlement agreement, because the Birds failed to appear in person or through counsel. On February 3, 1994, two settlement checks were issued, one for Cara and one for Carolyn. Mr. Hiller and Mr. Myers were included as payees on both of the checks, along with the names of the respective recipients.

Meanwhile, a dispute arose between the Birds and Mr. Hiller regarding his attorney's fees. Mr. Hiller asserted that he was entitled to one-third of each settlement check, and the Birds asserted Mr. Hiller was only entitled to one-third of Carolyn's settlement check. The Birds maintained that Mr. Hiller was not entitled to any portion of Cara's settlement because Cara had never agreed to Mr. Hiller's representation, and because she did not sign the contingency fee agreement.

In February, 1994, Mr. Myers sent Mr. Hiller the settlement checks asking him to sign and return the checks. In a letter dated February 25, 1994, Mr. Hiller acknowledged that he received the settlement checks and advised Mr. Myers that "[u]nless I receive express written authorization to negotiate these drafts, deduct our attorney's fees and costs, and remit the balance to the Birds, I will file an action ... [in Idaho] requesting a court order permitting recovery of attorney's fees and costs incurred."

On March 2, 1994, Cara and Mr. Bird filed a complaint against Mr. Hiller in the First Judicial District Court, Lewis and Clark County, charging him with theft and conversion, and fraud and deceit arising out of the dispute over the settlement money. On March 25, 1994, Mr. Hiller filed a motion pursuant to Rule 12, M.R.Civ.P., requesting the court, among other things, to dismiss the complaint for lack of personal jurisdiction. After considering the parties' briefs and numerous exhibits, the court, in a decision and order dated July 12, 1994, dismissed the Birds' complaint for lack of personal jurisdiction over Mr. Hiller. The Birds appeal from this decision and order.

The parties do not dispute the material facts. Based upon the undisputed material facts, the District Court came to the legal conclusion that the Montana court did not have personal jurisdiction over Mr. Hiller. This Court reviews legal conclusions to determine whether the district court's interpretation of the law is correct. Warnack v. Coneen Family Trust (1994), 266 Mont. 203, 207, 879 P.2d 715, 718.

This Court applies a two-part test to determine whether a Montana court can exercise personal jurisdiction over a nonresident defendant. First we must determine if personal jurisdiction exists either by way of the defendant being "found" within the state, or by way of the long-arm statutes. Second we must determine whether exercising jurisdiction comports with the defendant's due process rights. Edsall Const. Co., Inc. v. Robinson (1991), 246 Mont. 378, 381, 804 P.2d 1039, 1041. If, after determining personal jurisdiction does not exist under the first step of the analysis, further analysis under the second step is unnecessary. Edsall, 804 P.2d at 1041.

The concept of personal jurisdiction is controlled by Rule 4B, M.R.Civ.P. The pertinent part of that rule for purposes of this case provides:

(1) Subject to jurisdiction. All persons found within the state of Montana are subject to the jurisdiction of the courts of this state. In addition, any person is subject to the jurisdiction of the courts of this state as to any claim for relief arising from the doing personally, through any employee, or through an agent, of any of the following acts: ...

(b) the commission of any act which results in accrual within this state of a tort action; ...

The principles of both general and specific jurisdiction are codified in Rule 4B, M.R.Civ.P. General jurisdiction concerns whether a party can be "found" within the state. Simmons Oil Corp. v. Holly Corp. (1990), 244 Mont. 75, 83, 796 P.2d 189, 194. A nonresident defendant can be "found" within the state for general jurisdiction purposes if the defendant's activities within the state are "substantial" or "systematic and continuous." Simmons Oil, 796 P.2d at 194. On the other hand, the principle of specific jurisdiction provides that:

[J]urisdiction may be established even though a defendant maintains minimum contacts with the forum as long as the plaintiff's cause of action arises from any of the activities enumerated in Rule 4B(1), M.R.Civ.P....