Lindley v. Midwest Pulmonary Consultants, WD59619

• Citation: 55 S.W.3d 906
• Decision Date: 02 October 2001
• Docket Number: WD59619
• Parties: Edward L. Lindley and Sharon Lindley, Appellants, v. Midwest Pulmonary Consultants, P.C., and Michael E. Nelson, M.D., Respondents. WD59619 Missouri Court of Appeals Western District
• Court: Missouri Court of Appeals

Edward L. Lindley and Sharon Lindley, Appellants v Midwest Pulmonary Consultants, P.C., and Michael E. Nelson, M.D., Respondents

WD59619

Missouri Court of Appeals Western District

10/02/2001

Appeal From: Circuit Court of Jackson County, Hon. John R. O'Malley

Counsel for Appellant: Patricia Lear-Johnson and S.W. Longan, III

Counsel for Respondent: Thomas P. Cartmell, Jonathan P. Kieffer and Erin K. MacArthur

Opinion Summary:

Appellants Edward and Sharon Lindley appeal the dismissal of their claim against Dr. Michael Nelson for lack of personal jurisdiction. Their cause of action alleged medical malpractice in the improper monitoring and management of medications. The Lindleys sued Dr. Nelson, who is a Kansas resident, in his individual capacity for care he rendered in Kansas.

Division holds: When a defendant raises the issue of lack of personal jurisdiction, the burden shifts to the plaintiff to make a prima facie showing of jurisdiction by showing that the cause of action arose out of an activity covered by the long-arm statute and that the defendant had sufficient minimum contacts with the state to satisfy due process requirements. Here, the Lindleys' cause of action was based on medical malpractice in Kansas, not a transaction within Missouri. It is undisputed that all the decisions concerning Edward Lindley's medical treatment were made in Kansas. The only allegation of a Missouri contact in providing care is that Dr. Nelson's employer was a Missouri corporation. The Lindleys fail to make a prima facie case that the cause of action of medical malpractice arose within Missouri. Accordingly, the judgment of dismissal against Dr. Nelson is affirmed.

Ulrich and Lowenstein, JJ., concur.

James M. Smart, Jr., Judge

Edward and Sharon Lindley appeal the dismissal of their claim against Michael Nelson, M.D., a Kansas resident, for lack of personal jurisdiction. The cause of action alleged medical malpractice in the improper monitoring and management of medications. The Lindleys sued Dr. Nelson, in his individual capacity; his employer, Midwest Pulmonary Consultants, P.C., a Missouri corporation; as well as several other defendants. The Lindleys voluntarily dismissed all defendants except Nelson and Midwest Pulmonary. The trial court granted Nelson's motion to dismiss for lack of personal jurisdiction. The Lindleys now contend on appeal that the trial court erred in dismissing Nelson from the case because Nelson transacted business in Missouri and had sufficient minimum contacts with Missouri to meet the standards of due process. Factual Background

The underlying medical malpractice allegations center around the plan of treatment formulated by Nelson and his employer, Midwest Pulmonary Consultants, P.C., to monitor anticoagulation before, during and after a thoracentesis for which Mr. Lindley was hospitalized on May 5, 1997. It is undisputed that Mr. Lindley's hospitalization and the acts of negligence alleged in the petition all occurred in Johnson County, Kansas. Nelson has his office in Johnson County, Kansas, and provides medical services in that county. Nelson is a resident of Johnson County, Kansas. Likewise, the Lindleys are Kansas residents.

The Lindleys' action was filed in Jackson County, Missouri. In August of 1999, Nelson filed a motion to dismiss for lack of jurisdiction. In the motion Nelson argued he is not subject to the jurisdiction of a Missouri court because all the medical services provided took place in Kansas. Nelson further stated he neither committed any acts enumerated in the Missouri long arm statute nor does he have sufficient "minimum contacts" with Missouri to satisfy due process prerequisites. In support of the motion, Nelson filed an affidavit stating that: "(1) I am a medical doctor licensed to practice medicine in the State of Kansas [;] (2) I formerly was employed by Midwest Pulmonary Consultants, P.C. [;] (3) During the time that I was employed by Midwest Pulmonary Consultants, P.C. [,] I never provided any medical care or treatment in the State of Missouri."

The Lindleys filed suggestions in opposition arguing personal jurisdiction exists over Nelson because he committed certain acts (i.e. transacting business) that bring him under the Missouri long arm statute, section 506.500 RSMo. The Lindleys further argued Nelson has sufficient minimum contacts for Missouri to exercise jurisdiction regardless of whether or not he committed any act enumerated in the long arm statute.¹ In support of their position, Mr. Lindley filed an affidavit stating that: "(1) The bills for medical services received by Edward Lindley from Defendant Dr. Michael Nelson were issued from the State of Missouri[;] (2) Edward Lindley paid Defendant Nelson by issuing payment to Defendant Nelson in the State of Missouri[;] (3) Edward Lindley's checks to pay the medical bills from Defendant Nelson were deposited in the State of Missouri." The Lindleys also filed the affidavit of their attorney stating that Nelson was and continues to be licensed to practice medicine in the State of Missouri. They attached a copy of a fax from the Missouri Board of Healing Arts, a copy of a bill from Midwest Pulmonary Consultants P.C., and a copy of a cancelled check which was endorsed "Pay to the order of Commerce Bank NA Kansas City Mo 64141 [account number] for deposit only Midwest Pulmonary Consul. P.C. S. Learner, V. Lem. B. Schwartz, R. Hill, M. Nelson [followed by the tax number]²Standard Of Review

In their sole point on appeal, the Lindleys argue the trial court erred in dismissing their claims against Nelson because the court did have personal jurisdiction over Nelson under section 506.500 and that he had sufficient minimum contacts with Missouri to meet the standards of due process. The Lindleys argue that they showed facts which demonstrated personal jurisdiction in that Nelson was a physician licensed in Missouri, was at the relevant times an employee of a Missouri corporation, billed his services from Missouri, and payment was made to Missouri.

"When a defendant raises the issue of lack of personal jurisdiction, the burden shifts to the plaintiff to make a prima facie showing of jurisdiction by showing: (1) that the action arose out of an activity covered by the long-arm statute, section 506.500.4 and (2) that defendant had sufficient minimum contacts with the forum state to satisfy due process requirements in order to withstand the motion." Conway v. Royalite Plastics, Ltd., 12 S.W.3d 314, 318 (Mo. banc. 2000) (citing Chromalloy American Corp v. Elyria Foundry Co., 955 S.W.2d 1, 4 (Mo. banc. 1997)). When the motion is based on facts not appearing on the record, as is the case here, "the trial court may hear it on affidavits presented by the parties, or the court may direct that the matter be heard wholly or partly on oral testimony or deposition." Id. (citing Chromalloy and Rule 55.28). "The proper function of an affidavit is to state facts, not conclusions." Id. (citations omitted).

When affidavits are presented, the trial court may believe or disbelieve any statements made within those affidavits. It is within the sole discretion of the trial court to make such factual determinations. [The appellate court] must affirm the trial court's ruling regarding jurisdiction if the affidavits submitted by the defendants in support of their motions to dismiss show they did not commit any act sufficient to invoke the jurisdictional provisions of the Missouri [l]ong [a]rm [s]tatute.

Chromalloy, 955 S.W.2d at 4.³

"This standard of review does not convert the motion to dismiss into a motion for summary judgment as 'the trial court's inquiry is limited to an examination of the petition on its face and the supporting affidavits to determine the limited question of personal jurisdiction.'" Capitol Indem. Corp. v. Citizens Nat'l Bank, 8 S.W.3d 893, 898 (Mo. App. 2000) (quoting Chromalloy, 955 S.W.2d at 3, n. 3.). "The merits of the underlying action are not considered." Id. To demonstrate that a cause of action arose out of an activity covered by the long arm statute, however, "a plaintiff must make a prima facie showing of the validity of its claim. A plaintiff need not prove all of the elements that form the basis of the defendant's liability, but must show that acts contemplated by the statute took place." Conway, 12 S.W.3d at 318 (citations omitted).

The Missouri long-arm statue in relevant part states:

1. 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 submits such person, firm, or corporation, and, if an individual, his personal representative, 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;

(3) The commission of a tortious act within this state;....

3. Only causes of action arising from acts enumerated in this section may be asserted against a defendant in an action in which jurisdiction over him is based upon this section.

Section 506.500 RSMo (1994). The Lindleys' cause of action was based upon medical malpractice in Kansas, not a transaction within the State of Missouri. "Normally in a medical malpractice case, a plaintiff is required to establish: (1) an act or omission by the defendant that was not in keeping with the degree of skill and learning ordinarily used under the same or similar circumstances by members of defendant's profession; and (2) that such negligence or omission caused the plaintiff's injury." Zumwalt v. Koreckij, 24 S.W.3d 166, 168 (Mo. App. 2000). In this case it is undisputed that all the decisions concerning Mr. Lindley's medical treatment were made in Johnson County, Kansas. The only allegation of a Missouri contact in providing care is that Nelson's employer was a Missouri corporation. Thus, the Lindleys fail to...