Commercial Lithographing Co. v. Family Media, Inc.

• Decision Date: 13 August 1985
• Docket Number: No. WD,WD
• Parties: COMMERCIAL LITHOGRAPHING CO., Respondent, v. FAMILY MEDIA, INC., Appellant. 36389.
• Court: Missouri Court of Appeals

Page 936

695 S.W.2d 936

COMMERCIAL LITHOGRAPHING CO., Respondent, v. FAMILY MEDIA, INC., Appellant.

No. WD 36389.

Missouri Court of Appeals,

Western District.

Aug. 13, 1985.

Richard E. McLeod, Vivian W. McLeod, Shook, Hardy & Bacon, Kansas City, for appellant.

John W. Zimmerman, Berman, Deleve, Kuchan & Chapman, Kansas City, for respondent.

Before CLARK, C.J., and KENNEDY and NUGENT, JJ.

CLARK, Chief Judge.

This case presents the question of whether a non-resident magazine publisher incorporated and domiciled in New York is subject to personal jurisdiction in a Missouri court when sued for unpaid printing bills incurred in Missouri. The trial court ruled that respondent Missouri printing company properly obtained service of process on appellant magazine publisher in New York by a summons served there under authority of § 506.500, RSMo.Supp.1984. A jury trial which followed resulted in judgment for respondent on the account amounting to $23,899.54 and the publisher-defendant appealed.

Respondent engages in the lithographing business from its premises in Kansas City producing a variety of printed materials. Appellant publishes and distributes magazines throughout the country and maintains offices in New York, Chicago and Los Angeles. From time to time appellant inserts mailing cards in its publications which solicit subscriptions. These tear away cards are bound into the magazine and invite the customer to fill in the blank spaces to obtain regular mail delivery of the publication selected. It is these cards which respondent printed and delivered that form the basis for the unpaid account.

The business relationship between the parties originated in 1975 when respondent's president visited appellant's offices in New York and solicited their printing account. A number of orders for printing followed, some forty in number, and these were processed without incident. The account which is the subject of this suit consisted of four orders placed and produced between December, 1981 and March, 1982. The method for ordering the insert cards is significant, as will hereafter appear, in identifying the situs of contract formulation.

Respondent's evidence, essentially uncontroverted, traced the origin of each of the four printing orders in suit to a telephone call from appellant's New York office giving specifications for the cards ordered. A written communication from appellant to respondent followed giving the copy, art work and other details for the content of the printed material. For each order, respondent supplied a price quotation based on the cost of paper and ink, labor and other production expenses. Before transposing the copy and art work to a lithographing plate, respondent sent to appellant for approval a "photo print proof" showing the insert card as it would be printed. Upon a return of the proof with appellant's approval, respondent then "plated" and printed the order, made delivery in accordance with appellant's instructions to a printing plant in Lincoln, Nebraska where the magazines were produced and sent a billing invoice to appellant.

Appellant, a New York corporation, is not registered to do business in Missouri and maintains no office or the ownership of any property here. No representatives of appellant came to Missouri at any time in connection with the subject printing orders, all communications having been by mail and telephone between appellant's office in New York and respondent's printing plant in Kansas City. The same practice was followed in the prior business conducted between the parties in processing the printing orders between 1975 and 1981. The orders involved in this suit are distinguished from the previous transactions in that the billing statements generated after delivery of the orders produced neither payment nor response. This suit followed.

It is generally agreed that the principal issue in the case is whether the facts recited above give the Missouri court personal jurisdiction over appellant pursuant to § 506.500, RSMo.Supp. 1984 because appellant either made a contract in Missouri or transacted business in Missouri. In the trial court, appellant moved to quash the return of service of summons made in New York on the ground that appellant as a foreign corporation not admitted in Missouri had insufficient contacts with Missouri to support jurisdiction of Missouri courts over appellant conformable to constitutional due process. The trial court overruled the motion. ¹ Appellant contends this was error.

Section 506.500, RSMo.Supp.1984 provides that any person or corporation, whether resident in Missouri or not, submits to the jurisdiction of Missouri courts by committing certain acts including the transaction of business within the state or the making of any contract within the state. In order to qualify the case as one in which a Missouri claimant may employ the long arm jurisdiction of Missouri courts to summon a non-resident defendant, it must first appear that the transaction fits into one of the subsections of the statute and, in addition, that the assumption of jurisdiction accords with the due process requirements of the Fourteenth Amendment. State ex rel. Metal Service Center v. Gaertner, 677 S.W.2d 325, 327 (Mo. banc 1984). When the issue of personal jurisdiction over a non-resident defendant is raised, the burden is on the plaintiff seeking to avail himself of the long arm statute to establish a prima facie case for jurisdiction. Osage Homestead, Inc. v. Sutphin, 657 S.W.2d 346, 350 (Mo.App.1983).

We first consider whether the printing orders in suit were, as respondent contends, Missouri contracts. Respondent argues that they were basing the contention first on the proposition that a contract is complete when the last act necessary to its formation is done and second, that the place of the contract is that where the final act is performed. State ex rel. River Corp. v. State Tax Commission, 492 S.W.2d 821 (Mo.1973), Shady Valley Park & Pool, Inc. v. Dimmic, 576 S.W.2d 579 (Mo.App.1979). Respondent says the agreements by it to produce the insert cards and the corresponding obligations by appellant to make payment ripened into binding contracts when respondent accepted the orders by undertaking the work to print the cards. Because the printing process was performed wholly in Missouri, respondent argues that the agreements were Missouri contracts.

Respondent's theory of the case assumes the formulation of unilateral contracts, that is, contracts where only one of the parties makes a promise and the consideration therefor is not another promise, but performance. See Garrett v. American Family Mutual Insurance Co., 520 S.W.2d 102, 111 (Mo.App.1974). This contention ignores facts established by respondent's own evidence which showed formation of a bilateral contract before any printing of the cards commenced. In response to a question about how agreement was reached on the price to be charged for the printing, respondent's president testified: "Well, the only discussion was that we figured the amount of paper that was required, the labor, the ink, the processing (sic) quoted Ms. Gardiner (appellant's representative in New York) the price, she okayed it and we went into production."

A contractual relationship arises where the...