Farris v. Boyke

• Decision Date: 13 December 1996
• Docket Number: No. 20597,20597
• Citation: 936 S.W.2d 197
• Parties: Sandra FARRIS, Plaintiff-Appellant, v. Sharon BOYKE, Joyce Burkland, and Judith Cotte, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 197

936 S.W.2d 197

Sandra FARRIS, Plaintiff-Appellant, v. Sharon BOYKE, Joyce Burkland, and Judith Cotte,

Defendants-Respondents.

No. 20597.

Missouri Court of Appeals,

Southern District,

Division One.

Dec. 13, 1996.

Steven M. Hamburg, Andrea L. Weiss, Summers, Compton, Wells & Hamburg, P.C., St. Louis, for plaintiff-appellant.

Bradshaw Smith, Van Buren, for respondent Cotte.

John L. Oliver, Oliver, Oliver & Waltz, P.C., Cape Girardeau, for respondents Boyke and Burkland.

BARNEY, Presiding Judge.

Sandra Farris (Appellant) appeals from the Order of the Circuit Court of Carter County, Missouri, dismissing her amended three count petition against Sharon Boyke, Joyce Burkland and Judith Cotte (Respondents).

Expressly citing §§ 506.500.1 and .3, RSMo Cum.Supp.1993 ¹ as a basis for obtaining personal jurisdiction over Respondents, Appellant sought the imposition of a constructive trust over Respondent trust beneficiaries' interests in land and proceeds derived from the sale of lands distributed to the beneficiaries. Additionally, Appellant prayed for money damages resulting from breaches of fiduciary duties by Respondents/successor trustees Burkland and Boyke.

In its Order, the trial court recited that it based its dismissal of the amended petition and the quashing of process and service of process on the basis that it had not acquired personal jurisdiction over the three Respondents under § 506.500. ² Additionally, the trial court found that Respondent Cotte was an "indispensable party" under the provisions of Rule 52.04. ³

Appellant raises four points of trial court error which are discussed below.

I

The parties are all sibling beneficiaries of an inter vivos trust (the Trust) created by their mother, Mrs. Dorothy K. Pinckney, (Settlor) a resident of Elmhurst, Illinois. Settlor named herself as trustee and named Respondents Boyke and Burkland as successor co-trustees. The Trust was executed in Illinois on June 11, 1992, and the trust instrument provided that the Trust was to be "governed by and interpreted in accordance with the laws of the State of Illinois." All of the Respondents are residents of Illinois and Appellant is a resident of Missouri.

Before her death on August 13, 1992, Settlor conveyed to the Trust approximately 3,300 acres of real estate located in Carter County, Missouri. In her trust, Settlor directed the successor co-trustees, inter alia, to "convey by deed or otherwise one-quarter ( 1/4) of said lands to each of my four children free of this trust." Settlor further directed that in dividing the land, "the successor [co-]trustees take into account my desire that each child receive land containing river frontage, road frontage and creek frontage in substantially equal shares."

The affidavits and answers to interrogatories filed herein reveal that in compliance with the Trust's directives, after the death of the Settlor, the successor co-trustees made four trips to Missouri to investigate the real estate which was an asset of the trust corpus. In this connection they conferred with Jim and Mary Shaddox and Judge David Hedspeth. Additionally, several dozen telephone conversations, facsimiles and letters were transmitted back and forth from Illinois.

Upon returning to Illinois the successor co-trustees engaged the services of an Illinois attorney to draft the deeds distributing the real estate to the beneficiaries. These deeds were drafted and executed by the successor co-trustees in Elmhurst, Illinois, and were mailed from there to Respondent Cotte and Appellant. After these conveyances, no other trust assets remained in the State of Missouri.

After receipt of her deed, Respondent Cotte sold all of her inherited property. Respondents Burkland and Boyke also sold portions of their inherited real estate.

The evidence further shows that Respondent Cotte made two trips to Missouri to investigate the real estate assets of the trust: (1) in April of 1992 before the Trust was created; and (2) in December of 1992 during which visit she was driven by Appellant around the real estate and generally viewed the property.

Appellant asserts that the court erred in its finding that: (1) it had no personal jurisdiction over all the Respondents herein; (2) there was no subject matter jurisdiction over the real estate sufficient to allow service of process under Rules 54.12 and 54.14 so as to impose a constructive trust over the real property and in turn confer jurisdiction over all of the Respondents; (3) Respondent Cotte was an indispensable party as per Rule 52.04; and (4) Respondents Burkland and Boyke had not waived their jurisdictional objections by their pleadings.

II

In review of Appellant's first point, we note that Appellant has the burden of making a prima facie showing that the trial court has personal jurisdiction ⁴ over Respondents. Stavrides v. Zerjav, 848 S.W.2d 523, 527 (Mo.App.1993). When the motion is based on facts not appearing of record, the trial court may hear the matter on affidavits presented by the respective parties and the trial court may believe or disbelieve the statements contained in the affidavits. Id; see also Rule 55.28. The determination of the jurisdictional issue is for the trial court in the first instance. However, the sufficiency of the evidence to make a prima facie showing that the trial court may exercise personal jurisdiction is a question of law, which this Court reviews independently on appeal. Stavrides, 848 S.W.2d at 527.

A trust is not a legal entity. The trustee is the legal owner of the trust property, in which the beneficiaries have equitable ownership. McDaniel Title Co. v. Lemons, 626 S.W.2d 686, 690 (Mo.App.1981); Simmons v. Friday, 224 S.W.2d 90, 94 (Mo.1949). As a general rule, in suits involving trust property, both the trustees and beneficiaries are necessary parties. Roth v. Lehmann, 741 S.W.2d 860, 862 (Mo.App.1987).

In a court's review of a motion to dismiss for lack of personal jurisdiction over a non-resident, a two step inquiry is necessary. First, a determination must be made as to whether the non-resident committed one of the acts enumerated in the Missouri Long Arm Statute, § 506.500, RSMo Supp.1993. ⁵ Secondly, a determination must be made as to whether the exercise of personal jurisdiction over the non-resident would violate due process. Shirkey v. McMaster, 876 S.W.2d 648, 649 (Mo.App.1994).

In passing on Appellant's first allegation of trial court error, it is not necessary for this Court to review the applicability of the Missouri Long Arm Statute. This is because none of the activities undertaken by either Respondents Burkland and Boyke or Respondent Cotte meet the second threshold requirement of minimum contacts with the forum state sufficient to impose in personam jurisdiction.

"A defendant must maintain certain minimum contacts with the forum state such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " Watlow Elec. Mfg. Co. v. Sam Dick Indus., Inc., 734 S.W.2d 295, 297 (Mo.App.1987) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). "Like any standard that requires a determination of 'reasonableness', the 'minimum contacts' test of International Shoe is not susceptible of mechanical application; rather the facts of each case must be weighed to determine whether the requisite 'affiliating circumstances' are present." State ex rel. Sperandio v. Clymer, 581 S.W.2d 377, 382 (Mo. banc 1979). Random, fortuitous or attenuated contacts with the forum state cannot create jurisdiction. Elaine K. v. Augusta Hotel Assocs., 850 S.W.2d 376, 378 (Mo.App.1993) (citing Burger King v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). Nor may jurisdiction be predicated upon the unilateral activity of those who claim some relationship with the non-resident defendant. Id. (citing Hanson, 357 U.S. at 253-54, 78 S.Ct. at 1239-40, 2 L.Ed.2d 1283 (1958). It has also been held that the use of interstate mail and telephone facilities were insufficient contacts with the forum to satisfy due process in the assertion of long arm jurisdiction. TSE Supply Co. v. Cumberland Natural Gas Co., 648 S.W.2d 169, 170 (Mo.App.1983).

In judging minimum contacts, a court properly focuses upon the relationship among the defendant, the forum and the litigation. Id.

"In determining the existence of sufficient minimum contacts, the following factors are to be considered: (1) the nature, quality, and quantity of the contacts with Missouri; (2) the relationship of the cause of action to those contacts; (3) the interest of Missouri in providing a forum for its residents; and (4) the convenience and inconvenience to the parties." Laney v. Nigro, 905 S.W.2d 902, 904-05 (Mo.App.1995).

The basic due process test is whether the defendant has " 'purposefully availed itself of the privilege of conducting activities within the forum state.' " Elaine K., 850 S.W.2d at 378.

We note that the minimum contacts required in the products' liability area involving stream of commerce are less stringent than in other areas. State ex rel. William Ranni Assocs., Inc. v. Hartenbach, 742 S.W.2d 134, 138 (Mo. banc 1987). Also, a single tortious act is sufficient to support personal jurisdiction consistent with due process standards. State ex rel. Caine v. Richardson, 600 S.W.2d 82, 84 (Mo.App.1980). See, however, Sperandio, 581 S.W.2d at 383.

Respondents Burkland and Boyke's physical presence in Missouri on four occasions and their telephone calls and communications with people within the state, do not provide those affiliating connections with the forum state such that they should reasonably anticipate being hauled into court in Missouri. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). At most their contacts with Missouri were random, fortuitous and attenuated contacts born of the necessity of...