Bland v. Imco Recycling, Inc., 23703.
| Citation | 67 S.W.3d 673 |
| Decision Date | 30 January 2002 |
| Docket Number | No. 23703.,23703. |
| Parties | Ernest BLAND, Plaintiff-Respondent, v. IMCO RECYCLING, INC. and Metal Mark, Inc., Defendants-Appellants. |
| Court | Court of Appeal of Missouri (US) |
T. Michael Ward, Brown & James, P.C., St. Louis, for appellants.
John L. Cook, Thomasson, Gilbert, Cook & Maguire, L.C., Cape Girardeau, for respondent.
On August 6, 2001, this court issued an opinion in this cause. On October 23, 2001, by order of the Supreme Court of Missouri, this cause was transferred to that court. On January 22, 2002, the Supreme Court entered an order retransferring the cause to this court. The original opinion of this court, which follows, is now readopted and reissued.
A jury awarded Plaintiff Ernest Bland ("Plaintiff") a judgment of four million dollars against Metal Mark, Inc. ("Metal Mark") and IMCO Recycling, Inc. ("IMCO") for personal injuries Plaintiff sustained in a furnace explosion at an aluminum processing plant in Sikeston, Missouri. Metal Mark was assessed forty percent of the fault and IMCO was assessed sixty percent of the fault. Judgment was entered consistent with the verdict. Both defendants appeal.
On January 12, 1997, Plaintiff was working at an aluminum processing plant. As part of his job duties he used a forklift to put in a long pole to rake material in a furnace. After Plaintiff backed the forklift away, another employee rotated the furnace. An explosion occurred when the molten aluminum was expelled from a furnace that had no guards, shields, or doors on it. Plaintiff suffered third-degree burns when the molten aluminum hit him and caught his clothing on fire. He required skin grafts and was hospitalized in a burn unit for approximately three months.
Marnor Aluminum Processing, Inc. ("Marnor") hired Plaintiff in May 1996. At that time Marnor was a wholly-owned subsidiary corporation of Metal Mark, one of the two appellants in this case. Metal Mark was a wholly-owned subsidiary corporation of IMCO Recycling of Illinois Inc. IMCO Recycling of Illinois Inc. was a wholly-owned subsidiary of IMCO, the second defendant in this case. IMCO is a Delaware corporation with its principal place of business in Texas. On March 31, 1998, IMCO Recycling of Illinois Inc. merged into IMCO.
On June 3, 1996, Marnor filed a certificate of merger in the State of Illinois.1 The document states in pertinent part:
RESOLVED, that, effective as of June 1, 1996 for accounting purposes only, Subsidiaries merge (the "Merger") with and into Parent, and Parent shall be the surviving corporation (the "Surviving Corporation") pursuant to the Illinois Business Corporation Act of 1983....
Marnor was one of the "Subsidiaries"; Metal Mark was the "Parent" and the surviving corporation.
On June 4, 1997 Plaintiff brought a workers' compensation claim naming Marnor as his employer. On June 11, 1997, Marnor filed an answer as Plaintiff's employer. From that date until the date of trial of the personal injury lawsuit Marnor defended Plaintiff's workers' compensation case. On February 23, 2000, while testimony was still being taken in the personal injury trial, Metal Mark filed an amended answer in the workers' compensation case claiming to be Plaintiff's employer. Other relevant facts will be set forth in the discussion below.
Both defendants raise the issue of subject matter jurisdiction. Specifically, both defendants claim that the exclusive remedy for Plaintiff's claim rests with the Missouri Division of Labor and Industrial Relations. Metal Mark claims to be the actual employer of Plaintiff who was injured in the scope and course of his employment. IMCO claims, as an alternative point relied on, that as the alter ego of Metal Mark, it is entitled to the same immunity. Additionally, IMCO claims that the trial court lacked personal jurisdiction over it. Finally, IMCO challenges the judgment on the basis that Plaintiff failed to make a submissible case against IMCO.
IMCO complains that the trial judge erred in failing to dismiss Plaintiff's suit for lack of personal jurisdiction over IMCO. IMCO argues that there are insufficient contacts between itself and Missouri to justify it being haled into court in Missouri. Specifically, IMCO claims:
II. The trial court erred in denying IMCO Recycling, Inc.'s motion to dismiss for lack of personal jurisdiction because the trial court lacked personal jurisdiction over IMCO Recycling, Inc., in that:
A. IMCO Recycling, Inc., did not commit one of the predicate acts enumerated in Missouri's long-arm statute necessary to subject IMCO Recycling, Inc., to personal jurisdiction in Missouri; and
B. IMCO Recycling, Inc., did not have sufficient minimum contacts with Missouri to satisfy the due process requirements of the fourteenth amendment of the United States Constitution for the imposition of personal jurisdiction.
We disagree.
The party alleging in personam jurisdiction has the burden of making a prima facie showing that the trial court has jurisdiction. Farris v. Boyke, 936 S.W.2d 197, 200 (Mo.App. S.D.1996). The trial court's conclusion as to personal jurisdiction is one of law. Stavrides v. Zerjav, 848 S.W.2d 523, 527 (Mo.App. E.D.1993).
In reviewing a motion to dismiss, we are mindful that necessary factual determinations are within the sole discretion of the trial judge. Chromalloy American Corporation v. Elyria Foundry Company, 955 S.W.2d 1, 5 (Mo. banc 1997). To analyze whether the trial court abused its discretion in making its finding, an appellate court must view the evidence in the light most favorable to the trial court's ruling. Anglim v. Missouri Pacific Railroad Company, 832 S.W.2d 298, 303 (Mo. banc 1992). Discretionary rulings are presumed correct and the appellant bears the burden of showing an abuse of that discretion. Id. Judicial discretion is abused when the trial court's ruling is clearly against the logic of the circumstances presented to the court and is so arbitrary and unreasonable that it shocks the sense of justice and indicates a lack of careful consideration. Id.
If reasonable people can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Id. This court will defer to the trial court's findings and will presume that the factual issues were resolved by the trial court in accordance with the result reached. Smith-Scharff Paper Company, Inc. v. Blum, 813 S.W.2d 27, 28 (Mo.App. E.D.1991).
We need not address IMCO's claims concerning the long-arm statute and minimum contacts as IMCO waived its right to contest personal jurisdiction by seeking affirmative relief from the trial court against an employee of Marnor. The trial court concluded correctly that, as a matter of law, the court had personal jurisdiction over IMCO.
IMCO filed a cross-claim against co-employee, Max Sweet.2 IMCO alleged that Plaintiff's injuries were caused by Sweet. It alleged that IMCO had a right of contribution from Sweet if IMCO was found liable to Plaintiff. IMCO concluded its cross-claim as follows: "WHEREFORE, Defendants pray this court for a cross-claim for indemnity and contribution from Defendant Sweet...."
The general principle is that if a party takes any action which recognizes that the cause is in court and assumes an attitude that the jurisdiction of the court has been acquired, he is bound thereby, and the action amounts to a general appearance. In re Estate of Miller, 9 S.W.3d 760, 767 (Mo.App. S.D.2000) (). If a party acts so as to recognize that a cause of action is pending and then takes steps that are clearly inconsistent with a lack of personal jurisdiction, the party waives his claim of lack of personal jurisdiction. Lamastus v. Lamastus, 886 S.W.2d 721, 725 (Mo.App. E.D.1994). If a party affirmatively seeks relief, he necessarily assumes the attitude that the jurisdiction of the court has been acquired. Germanese v. Champlin, 540 S.W.2d 109, 112 (Mo.App.1976). Waiver occurs by the defendants "taking or agreeing to some step or proceeding in the cause beneficial to himself ... other than one contesting only the jurisdiction." Abrams v. Four Seasons Lakesites/Chase Resorts, Inc., 904 S.W.2d 37, 39 (Mo.App. S.D.1995) (internal citations omitted).
IMCO argues that Sperandio and Germanese have no precedential value on the issue of waiver because of the Missouri Supreme Court's decision in State ex rel. White v. Marsh, 646 S.W.2d 357 (Mo.banc 1983). In White our Supreme Court held that a request for additional time to respond to the petition did not waive the right to forward a subsequent motion to dismiss for lack of jurisdiction over the person or to dismiss for insufficiency of process. Id. at 362. In White the Court specifically stated, "We do not consider situations in which a defendant takes steps in a case which are clearly inconsistent with any claim of want of personal jurisdiction." Id. IMCO took such steps in this case. White does not aid IMCO's argument.
The procedural history of this case illustrates a reason for the waiver rule. A broadly drafted motion to dismiss was filed on behalf of IMCO. IMCO filed a cross-claim against another defendant and refused to dismiss that defendant even after Plaintiff dismissed his claim against that defendant. Finally, IMCO made no record of a claim of lack of personal jurisdiction until the third day of a jury trial. On the first day of trial absolutely nothing was mentioned to the court about a lack of personal jurisdiction. This is so despite the fact that other claims in IMCO's motion to dismiss were argued that day. On the second day of trial IMCO raised the question of personal jurisdiction after it filed a motion for directed verdict. The basis for its argument, however, was invalid...
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