Clinic Masters, Inc. v. District Court In and For El Paso County
| Citation | 556 P.2d 473,192 Colo. 120 |
| Decision Date | 15 November 1976 |
| Docket Number | No. 27224,27224 |
| Parties | , 20 UCC Rep.Serv. 855 CLINIC MASTERS, INC., a Colorado Corporation, Petitioner, v. The DISTRICT COURT IN AND FOR the COUNTY OF EL PASO et al., Respondents. |
| Court | Supreme Court of Colorado |
Perkins, Goodbee, Mason & Davis, Eugene O. Perkins, Colorado Springs, for petitioner.
Cole, Hecox, Tolley, Edwards & Keene, P.C., Lawrence A. Hecox, Colorado Springs, for respondents.
This is an original proceeding, brought pursuant to C.A.R. 21, seeking relief in the nature of mandamus and prohibition from the district court's order quashing service of process. We issued our rule to show cause why relief should not be granted. Having considered the merits, we now make the rule absolute.
Clinic Masters, Inc., petitioner, operates a management consulting service based in Colorado Springs. After preliminary communications by mail and telephone, on August 3, 1973, petitioner entered into a management consulting agreement with Dr. Peter G. Fernandez, a Florida chiropractor, defendant below. The form contract, prepared by petitioner in Colorado, was signed by defendant in Kansas City, Missouri. Defendant never physically entered Colorado.
Pursuant to the contract, petitioner rendered consulting services until mid-1974, ceasing performance because of defendant's failure to make payments under the contract. On December 27, 1974, petitioner filed a complaint in El Paso County district court. Defendant was personally served in Florida under the Colorado long-arm statute, section 13--1--124(1)(a), C.R.S.1973. Paragraph 9 of the contract provides:
Defendant, appearing specially, moved to quash service of process for lack of personal jurisdiction. The district court granted the motion to quash, holding that defendant lacked minimal contacts with Colorado to subject him to In personam jurisdiction of the court. Petitioner appealed to the court of appeals. That court dismissed the appeal without prejudice, for the reason that the trial court's order to quash was not a final appealable order. Hoen v. District Court, 159 Colo. 451, 412 P.2d 428.
Respondent raises two procedural issues which we here consider. It is argued that since this court lacks jurisdiction over defendant, any order entered can have no effect on defendant and therefore this proceeding is moot. Respondent misconceives the nature of this original proceeding. Both the rule to show cause and the writs authorized by Colo.Const. Art. VI, Sec. 3, are directed to respondent district court to determine whether the court is proceeding without or in excess of its jurisdiction. C.A.R. 21.
Next, respondent asserts that the district court's order quashing service became a final order when the court of appeals dismissed the appeal and the petitioner (appellant) failed to seek a rehearing and ultimately to petition this court for a writ of certiorari directed to the court of appeals' order of dismissal. The respondent then concludes that the law of the case is that the trial court ruling quashing service is a final and nonappealable determination, and therefore 'there is nothing upon which the court may properly act.' This argument is not pursuasive. Respondent misapprehends the court of appeals' order, which was based upon its lack of jurisdiction to consider the propriety of the trial court's ruling inasmuch as that ruling was not a final and appealable order. See Hoen v. District Court, supra.
Petitioner and respondent vigorously argue whether defendant had sufficient contacts with Colorado to confer personal jurisdiction under the long-term statute and consonant with due process. We do not reach this issue, however, because we hold that defendant has consented to the jurisdiction of the district court.
Paragraph 9 of the contract between petitioner and defendant designates the county of El Paso as 'the exclusive venue and place of jurisdiction * * *.' The district court held this provision void on the grounds that parties to an action cannot confer jurisdiction by agreement or consent.
The court erred in failing to distinguish between jurisdiction over the subject matter and jurisdiction over the person. It is true that subject matter jurisdiction cannot be conferred by the parties. Triebelhorn v. Turzanski, 149 Colo. 558, 370 P.2d 757; McCoy v. McCoy, 139 Colo. 105, 336 P.2d 302. But here the subject matter jurisdiction of the district court, a court of general jurisdiction, is uncontested. Colo.Const. Art. VI, Sec. 9(1).
Where a court possesses subject matter jurisdiction, the parties may waive lack of personal jurisdiction. Sarchet v. Phillips, 102 Colo. 318, 78 P.2d 1096. As we observed in Arapahoe County v. D.U.W. Co., 32 Colo. 382, 76 P. 1060:
'* * * The parties may waive jurisdiction, so far as it affects them personally, but it is beyond their power to confer upon a judicial tribunal jurisdiction of the subject-matter which it does not possess under the constitution and statutes of the state. * * *'
Parties may even agree in advance of...
To continue reading
Request your trial
-
Schlobohm v. Spa Petite, Inc.
...that there was no opportunity for negotiation and that the services could not be obtained elsewhere. Clinic Masters, Inc. v. District Court, 192 Colo. 120, 124, 556 P.2d 473, 475-76 (1976); LaFrenz v. Lake County Fair Board, 172 Ind.App. 389, 394, 360 N.E.2d 605, 608 (1977); Ciofalo v. Vic ......
-
People v. Sporleder
...It has long been recognized that courts cannot adjudicate a dispute unless it has the power to act. See, e.g., Clinic Masters v. District Court, 192 Colo. 120, 556 P.2d 473 (1976). Courts receive their power to adjudicate from constitutional and statutory grants. See Colo. Const. art. VI, s......
-
Johnson v. Rapid City Softball Ass'n, 18269
...Inc., 272 N.W.2d 813 (S.D.1978); Milligan v. Big Valley Corp., 754 P.2d 1063, 1067 (Wyo.1988); Clinic Masters v. District Court for County of El Paso, 192 Colo. 120, 556 P.2d 473, 475 (1976); St. Paul Fire v. Guardian Alarm Co., 115 Mich.App. 278, 320 N.W.2d 244 (1982) (mere fact that a con......
-
Coll. Park Pentecostal Holiness Church v. Gen. Steel Corp.
...This factor weighs heavily against enforceability of the forum selection clause. Cf. Clinic Masters, Inc. v. District Court in and for the County of El Paso, 192 Colo. 120, 556 P.2d 473, 475–76 (1976) (holding that forum selection clause was not unconscionable in part because there was no e......
-
CONTRACT REMEDIES NEED NOT UNDERCOMPENSATE ASPIRING PARENTS WHEN CRYOPRESERVED REPRODUCTIVE MATERIAL IS LOST OR DESTROYED: RECOVERY OF CONSEQUENTIAL DAMAGES FOR EMOTIONAL DISTURBANCE WHEN BREACH OF CONTRACT RESULTS IN THE LOST OPPORTUNITY TO BECOME PREGNANT WITH ONE'S OWN BIOLOGICAL CHILD.
...v. Spa Petite, Inc., 326 N.W.2d 920, 925 (Minn. 1982). (235) Copeland, 565 S.W.3d at 274; see also Clinic Masters, Inc. v. District Court, 556 P.2d 473, 475-76 (Colo. 1976)(same); LaFrenz v. Lake County Fair Board, 360 N.E.2d 605, 608 (Ind. Ct. App. 1977) (same); Ciofalo v. Vic Tanny Gyms, ......