Dillaplain v. Lite Industries, Inc.

• Decision Date: 24 April 1990
• Docket Number: No. WD,WD
• Citation: 788 S.W.2d 530
• Parties: Prod.Liab.Rep. (CCH) P 12,465 Gail Ivan DILLAPLAIN and Alice Winnie Dillaplain, Plaintiffs-Appellants, v. LITE INDUSTRIES, INC., Defendant-Respondent. 42541.
• Court: Missouri Court of Appeals

Page 530

788 S.W.2d 530

Prod.Liab.Rep. (CCH) P 12,465

Gail Ivan DILLAPLAIN and Alice Winnie Dillaplain Plaintiffs-Appellants, v. LITE INDUSTRIES, INC., Defendant-Respondent.

No. WD 42541.

Missouri Court of Appeals Western District.

April 24, 1990.

Richard I. Buchli, II, Kansas City, for plaintiffs-appellants.

Neysa L. Day, Gerald M. Kraai, Kansas City, for defendant-respondent.

Before KENNEDY, P.J., and LOWENSTEIN and BERREY, JJ.

LOWENSTEIN, Judge.

Plaintiffs, Gail and Alice Dillaplain, appeal an order quashing service of process and dismissing for lack of jurisdiction their petition seeking damages for personal injuries arising out of Lite Industries, Inc. manufacture of protective fire garments. The Dillaplains assert Lite had sufficient "minimum contacts" to subject it to the jurisdiction of Missouri courts. Lite, in turn, challenges the appealability of the trial court's order.

The Dillaplains sued defendant Lite in a two count petition for damages as a result of Gail Dillaplain's exposure to asbestos contained in fire-protective clothing manufactured by Lite. Gail was exposed to asbestos from Lite's products from 1954 to 1974 during his employment as a fireman at the Richards-Gebaur Air Force Base in Grandview, Missouri.

Lite was served by registered mail at its offices in Patterson, New Jersey, on June 30, 1988. On August 1st of that year, Lite appeared specially to contest in personam jurisdiction of the Missouri courts and filed its motion to quash service of process and to dismiss for lack of jurisdiction. In its order of September 21, 1988, the trial court suggested it would sustain Lite's motion, stating "the placement of a product into the stream of commerce, without more, is not an act of the defendant purposely directed toward the forum state. This appears to be descriptive of the [instant] case...." However, the court granted sixty days to allow the parties to conduct discovery and submit additional suggestions.

Discovery revealed that Lite is a New York corporation with its principal place of business in Patterson, New Jersey. Lite is not registered to do business as a foreign corporation in Missouri, nor does it maintain offices or agents here. It has never negotiated a contract for the manufacture or assembly of protective fire garments in Missouri and it has never directly shipped such products into the state.

Lite is in the business of assembling protective fire garments for the United States government. The garments are assembled pursuant to design specifications set forth by the government. During the years 1960 to the time of suit, Lite submitted bids to the United States Government Defense Supply Agency for the purpose of supplying such garments to the government. Approximately 76 contracts with an estimated value of $25,000,000.00 were entered into during this period. Pursuant to the contracts, Lite was required to ship the garments to particular military depots and, in some instances, directly to air force and navy bases throughout the country. If shipped to depots, the government directed the distribution of the garments to military bases and other destinations where they were needed. Lite was aware of this process of redistribution. In addition, the contracts gave the government the power to instruct Lite where to ship the products and to require Lite to screen the garments at depots designated by the government anywhere within the continental United States. Discovery also revealed that Lite did not solicit business from the private sector. "99.9 percent" of its sales were military procurement for the United States government. For practical purposes, the government was Lite's only customer.

On September 8, 1989, the court issued its order sustaining Lite's motion to quash service of process and dismissed the Dillaplain's petition without prejudice for lack of personal jurisdiction. Additional facts will be given infra as needed.

One preliminary matter must first be ruled upon. Lite has filed a motion to dismiss the appeal because the trial court order which quashed service and dismissed the petition for lack of personal jurisdiction was not a final order. Therefore, it is suggested, this court does not have jurisdiction. This motion was taken with the case. The thrust of the motion is the trial court did not dispose of the actual merits of the Dillaplains' claims. Lite never filed an answer, but appeared specially to contest personal jurisdiction and to challenge service.

Generally, an order which does nothing more than quash service of process is not considered a final judgment because it does not adjudicate the merits of the claim. Instead, it adjudicates only the validity of the particular service involved. Continent Foods Corp. v. National-Northwood, Inc., 470 S.W.2d 315, 317 (Mo.App.1971). Also, a dismissal for lack of in personam jurisdiction is by the terms of Rule 67.03 without prejudice unless designated otherwise. Here, the dismissal was specifically designated to be without prejudice. As was said in Turnbow v. Southern Railway Co., 768 S.W.2d 556, 558 (Mo. banc 1989):

A dismissal without prejudice which the plaintiff may cure by filing another suit in the same court, is not a final judgment from which an appeal may be taken under Missouri law because it lacks the hallmarks of a final judgment--it fails to dispose of all the issues and parties to the cause of action.

On the other hand, if a motion is predicated on the basis of the petition not stating a cause of action, it is considered a judgment on the merits and "put[s] an end to the action," and therefore is an appealable order. Continent Foods, supra, at 317-18.

Confusion abounds when, as here, the motion to quash and dismissal of the petition (which for purposes of finding in personam jurisdiction claimed a tortious act committed in Missouri) are both sustained. Courts have held:

Quashing service under the circumstances before the trial court was another way of saying that the petition did not state a claim upon which relief could be granted; this for the reason that for Sec. 351.633, supra, to be invoked, there must be a tort committed in Missouri in whole or in part by a foreign corporation against a resident or nonresident. To determine whether the service provisions of Sec. 351.633 can be used the petition must be examined. If it does not show on its face that the defendant has committed a tort in Missouri out of which the cause of action being asserted arises, attempted service under the statute would be subject to a motion to quash. If it does state a claim, then the procedure being used by plaintiff against these corporate defendants is valid and not subject to being quashed.

Empiregas, Inc. of Noel v. Hoover Ball & Bearing Co., 507 S.W.2d 657, 660 (Mo.1974). See also Watlow Elec. Mfg. Co. v. Sam Dick Industries, Inc., 734 S.W.2d 295 (Mo.App.1987); Simpson v. Dycon Intern, Inc., 618 S.W.2d 455 (Mo.App.1981); Talkington v. J.S. Alberici Const. Co., 528 S.W.2d 5, 6 (Mo.App.1975).

In Schwenker v. St. Louis County Nat. Bank, 682 S.W.2d 868 (Mo.App.1984), under facts similar to this case, the appeal was dismissed where a petition had been dismissed for lack of personal jurisdiction in an action against a non resident defendant under section 506.500.1(3), RSMo 1986. The court, sua sponte, considered the appealability issue, even though the trial court had designated the order as final. Id. at 870. The court dismissed the appeal stating:

The trial court's dismissal for lack of personal jurisdiction operates no differently than an order to quash service for lack of jurisdiction which is not a final judgment from which an appeal will lie. Continent Foods Corp., 470 S.W.2d at 317. Such an order is properly challenged by extraordinary writ. See State ex rel. Metal Service Center of Georgia, Inc. v. Gaertner, 677 S.W.2d 325 (Mo. banc 1984), State ex rel. Caine v. Richardson, 600 S.W.2d 82, 83 (Mo.App.1980).

Id.

In Abbate v. Tortolano, 782 S.W.2d 810 (Mo.App.1990), this court echoed the rationale of Schwenker in a case arising out of a dismissal for failure to obtain personal jurisdiction for a failure to comply with substitution of a defendant following a suggestion of death. Id. at 811. The opinion stated that a dismissal for lack of personal jurisdiction is not final, and "is properly challenged by extraordinary writ but not by appeal." Id. at 813. See also State ex rel. Degeere v. Appelquist, 748 S.W.2d 855, 857 (Mo.App.1988); Matter of Seiser, 557 S.W.2d 263 (Mo.App.1977).

The plaintiffs here did not seek an extraordinary writ. At first blush, any attempt to distinguish the case at bar from Schwenker and Abbate is difficult. However, this court chooses to look at what was actually dismissed--was it a mere dismissal of the petition or of the action itself? Nicholson v. Nicholson, 685 S.W.2d 588, 589 (Mo.App.1985). "If the dismissal was such that a refiling of the petition at that time would be a futile act, then the order of dismissal is appealable." Id.

In ruling on Lite's motion, this court holds the trial court action in quashing service and dismissal for lack of jurisdiction adjudicated this case. The plaintiffs could not have turned around and refiled the petition. Nicholson, supra, at 589. The trial court ruling really decided the ultimate question for long arm jurisdiction by implicitly deciding the matter of whether a tort had been committed in this state. Refiling another petition would have been a "futile act." Nicholson, supra. See also Allred v. National Old Line Ins. Co., 245 Ark. 893, 435 S.W.2d 104, 107 (1968); Kneeland v. Ethicon Suture Laboratories, 113 Cal.App.2d 335, 248 P.2d 447, 449 (1952); Ter Har v. Backus, 256 Or. 288, 473 P.2d 143, 144 (1970); Brown v. Lamb, 112 Ohio App. 116, 171 N.E.2d 191, 194 (1960). The court rules that an appeal here is warranted, but, even if the remedy of a writ, as espoused in Schwenker and Abbate, should have been utilized, it would add...