Consolidated Elec. & Mechan. v. Schuerman, ED 86492.

• Decision Date: 07 March 2006
• Docket Number: No. ED 86492.,ED 86492.
• Parties: CONSOLIDATED ELECTRICAL & MECHANICALS, INC., Appellant, v. Marilyn SCHUERMAN, Respondent.
• Court: Missouri Court of Appeals

185 S.W.3d 773

CONSOLIDATED ELECTRICAL & MECHANICALS, INC., Appellant, v. Marilyn SCHUERMAN, Respondent.

No. ED 86492.

Missouri Court of Appeals, Eastern District, Division Three.

March 7, 2006.

Appeal from the Circuit Court, St. Louis County, Colleen Dolan, J Lester J. Hubble, St. Louis, MO, for appellant.

Craig Lawton Kessler, St. Louis, MO, for respondent.

BOOKER T. SHAW, Judge.

Consolidated Electrical & Mechanical, Inc. ("Consolidated") appeals from the trial court's judgment granting a motion to dismiss for lack of personal jurisdiction in favor of Marilyn Schuerman ("Schuerman"). Consolidated, a Missouri corporation, filed a petition against Schuerman, a California resident, alleging that Schuerman breached an oral contract to provide Consolidated with the right to purchase her St. Louis Cardinals playoff tickets for the 2004 baseball season. Schuerman filed a Motion to Dismiss contending that (1) Consolidated failed to allege sufficient facts showing that Schuerman transacted business within the state of Missouri and (2) failed to allege sufficient minimum contacts to satisfy due process requirements. The trial court granted Schuerman's motion to dismiss and this appeal follows. We affirm as amended herein.

When a defendant raises the issue of personal jurisdiction in a motion to dismiss, the plaintiff has the burden to show that the trial court's exercise of jurisdiction is proper. Capitol Indemnity Corp. v. Citizens Nat. Bank, 8 S.W.3d 893, 899 (Mo.App. W.D.2000). In the case before us, the trial court granted Schuerman's motion to dismiss based on the parties' affidavits and legal memoranda.

When a motion to dismiss for lack of personal jurisdiction is made on a matter not appearing on the record, the trial court may hear it on affidavits presented by the parties, or the court may direct the matter be heard wholly or partly on oral testimony or deposition. When affidavits are presented, the trial court may believe or disbelieve any statements made within those affidavits. It is in the sole discretion of the trial court to make such factual determinations.

Chromalloy American Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 4 (Mo. banc 1997); see also Rule 55.28.¹ We defer to the trial court's determination of credibility and resolution of conflicting facts, however the sufficiency of the evidence supporting the trial court's determination is a question of law which we review independently on appeal. Stavrides v. Zerjav, 848 S.W.2d 523, 527 (Mo.App. E.D.1993).

To subject a non-resident defendant to the long arm jurisdiction of Missouri, the plaintiff must plead and prove two elements: first, that the suit arose from any of the activities enumerated in Section 506.500 RSMo 2004² the Missouri long arm statute; and second, that the defendant has sufficient minimum contacts with Missouri to satisfy due process requirements. Capitol Indemnity Corp., 8 S.W.3d at 899. Section 506.500.1 reads, in pertinent part, as follows:

Any person or firm, whether or not a citizen or resident of this state, or any corporation, who in person or through an agent does any of the acts enumerated in this section, thereby submit . . . to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of such acts:

(1) The transaction of any business within this state;

(2) The making of any contract within this state; . . .

The due process clause of the Fourteenth Amendment further requires that a non-resident defendant have sufficient minimum contacts with the forum state so that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 2184, 85 L.Ed.2d 528 (1985). To determine whether Schuerman had sufficient minimum contacts permitting a Missouri court to exercise personal jurisdiction over her, we consider the following five factors: 1) the nature and quality of the contacts; 2) the quantity of those contacts; 3) the relationship of the cause of action to those contacts; 4) the interest of Missouri in providing a forum for its residents; and 5) the convenience to the parties. "The first three factors are of primary importance and the last two are of secondary importance." Mead v. Conn, 845 S.W.2d 109, 112 (Mo.App.1993). The "minimum contacts" test "is not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite affiliating circumstances are present." Chromalloy American Corp., 955 S.W.2d at 4 (internal quotations omitted). "The defendant's contacts with the forum state must be purposeful and such that defendant should reasonably anticipate being haled into court in the forum state." Id.

Reviewing the specific circumstances of this case, we find Schuerman did not have sufficient minimum contacts with Missouri to satisfy due process requirements. The affidavits of both parties reveal that Schuerman purchases St. Louis Cardinals season tickets annually through the mail and over the years, she has sold these season tickets to various individuals, including Consolidated. Consolidated does not allege that Schuerman conducts any other business or maintains any other...