Noble v. Shawnee Gun Shop, Inc., No. WD 71254 (Mo. App. 4/6/2010), WD 71254.
| Decision Date | 06 April 2010 |
| Docket Number | No. WD71255.,No. WD 71254.,WD 71254.,WD71255. |
| Parties | CAROLEE NOBLE and LEO NOBLE and JO AN N K. NILGES and WAYNE NILGES, Appellants,, v. SHAWNEE GUN SHOP, INC., d/b/a THE BULLET HOLE, Respondent. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Jackson County, Missouri, The Honorable David M. Byrn, Judge.;
Before Division III: Karen King Mitchell, Presiding Judge, and James Edward Welsh and Mark D. Pfeiffer, Judges.
This is an appeal from the Circuit Court of Jackson County, Missouri's ("trial court") dismissal of the plaintiffs' actions based on lack of personal jurisdiction over the defendant Shawnee Gun Shop, Inc., d/b/a The Bullet Hole ("Gun Shop"). We reverse the judgment of the trial court and remand.
On April 24, 2007, David W. Logsdon ("Logsdon"), a Missouri resident, entered Gun Shop's firearm and ammunition retail pro shop and shooting range located in Overland Park, Kansas, four miles from the Missouri state line. Logsdon purchased firearm magazines1 from Gun Shop with a credit card he had stolen from Patricia Reed, a female neighbor and fellow Missouri resident whom Logsdon is suspected of murdering. The card had Patricia Reed's name on its face.
On April 29, 2007, Logsdon apparently used the magazines he purchased from Gun Shop in a shooting rampage during which he shot both Luke A. Nilges and Leslie Noble Ballew, each of whom was in his or her car outside of the Ward Parkway shopping center in Kansas City, Missouri. Both Nilges and Ballew were killed.
The parents of Nilges (the Nilgeses) and Ballew (the Nobles) each filed lawsuits against Gun Shop in the trial court seeking damages for the deaths of their children resulting from Gun Shop's allegedly negligent sale of the magazines to Logsdon. Both the Nilgeses and the Nobles also filed separate lawsuits in the state of Kansas to preserve their rights under the Kansas savings provisions should their Missouri actions fail for want of personal jurisdiction over Gun Shop. Both the Nilgeses and the Nobles attempted to voluntarily dismiss their claims in the respective Kansas cases without prejudice pending the outcome of their Missouri actions. The Kansas judge in the Noble court allowed the voluntary dismissal. The Kansas judge in the Nilges case did not and requested that the parties brief Gun Shop's intervening motion to dismiss for failure to state a claim. The Kansas judge in the Nilges action granted Gun Shop's motion to dismiss2 and that matter is pending appeal in Kansas.
Meanwhile, after Gun Shop filed motions to dismiss in the Missouri trial court in both the Nilges and Noble actions, the cases were consolidated for the purpose of determining jurisdiction. On January 27, 2009, the plaintiffs filed motions to conduct discovery on the issue of in personam jurisdiction. The motion was granted, and the plaintiffs served a request for production of documents and things on February 5, 2009. Gun Shop filed its responses and objections on March 6, 2009, and plaintiffs responded to Gun Shop's motion to dismiss.
On April 2, 2009, plaintiffs sought additional discovery, specifically, a corporate representative deposition, a deposition of the employee who sold the magazines to Logsdon, requests for admissions, and interrogatories. The trial court granted the request with respect to written discovery only. Gun Shop responded on May 19, 2009. Plaintiffs asked the trial court to compel Gun Shop to answer the written discovery more fully. However, the trial court denied most of the plaintiffs' requests, finding that the discovery sought pertained more to the merits of the plaintiffs' cause of action and not to the jurisdictional issue.
On July 10, 2009, Gun Shop's motion to dismiss was granted. The trial court found that the causes of action did not arise from the commission of a tortious act within the state of Missouri, as required by the Missouri long-arm statute, section 506.500.3 This appeal followed.
This court first must address Gun Shop's argument that these proceedings are moot because of the order dismissing the Nilges case in the Kansas state court. Gun Shop claims that the dismissal of the Nilges matter by the Kansas District Court for failure to state a claim serves to bar the plaintiffs' actions in this case under the doctrines of res judicata and collateral estoppel. Res judicata and collateral estoppel are affirmative defenses that normally must either be raised in an answer, by an amendment to the pleadings, or in a motion to dismiss. Patrick V. Koepke Constr., Inc. v. Woodsage Constr. Co., 119 S.W.3d 551, 555 (Mo. App. E.D. 2003). Also, for res judicata and collateral estoppel to apply, there must have been a final prior judgment on the merits deciding the same claims or issues. Robin Farms, Inc. v. Beeler, 991 S.W.2d 182, 185 (Mo. App. W.D. 1999). In this case, Gun Shop could not raise the issues of res judicata and collateral estoppel before the trial court because the Kansas order dismissing the Nilges claim was not issued until after the Missouri trial court had issued its judgment dismissing the matter for lack of personal jurisdiction. In other words, when the matter was before the Missouri trial court, there had been no final judgment on the merits in Kansas. This is why Gun Shop offers res judicata and collateral estoppel to this court as issues pertaining to mootness.
The order dismissing the Nilges case in the Kansas court for failure to state a claim constitutes a final judgment on the merits under Kansas law. Wirt v. Esrey, 662 P.2d 1238, 1246 (Kan. 1983). Under Missouri law, a judgment on the merits at the trial-court level is considered a final judgment for purposes of res judicata and collateral estoppel, even if the appeal of that judgment is still pending. Consumers Oil Co. v. Spiking, 717 S.W.2d 245, 251 (Mo. App. W.D. 1986). We note, however, that in Spiking we had already affirmed the "pending" collateral trial-court decision when we took up the res judicata matter, so the "finality" of the collateral decision did not change after the fact.4 Id. at 248 n.4. The collateral case had also been affirmed by the time the appellate court took up the res judicata matter in Koepke Construction, 119 S.W.3d at 556. Similarly, in two other Missouri cases holding that the trial-court decision should be considered final pending appeal, the appeals of the two collateral cases were consolidated and affirmed together. See Atlanta Cas. Co. v. Stephens, 825 S.W.2d 330, 331 (Mo. App. W.D. 1992); Geringer v. Union Elec. Co., 731 S.W.2d 859, 861 (Mo. App. E.D. 1987). In all of these cases, by the time the appellate court had decided that the lower-court collateral decision was "final" and thus served to justify res judicata or collateral estoppel, the collateral matter had, in fact, become final; there was no real chance of reversal. We have found no other case with the unique timing issues presented in the cases before us, where one lower-court dismissal (here, in Missouri), pending appeal, occurred prior to consideration of a motion to dismiss by a second trial court (Kansas), and then that second court's decision was held to bar reversal of the first trial-court's decision (Missouri), all while there was still a possibility that the second trial-court's decision could be reversed on appeal (Kansas).
Further complicating matters is that the Kansas order, on which Gun Shop relies, only dismissed the Nilgeses' cause of action. The Nobles also brought an action in Kansas to preserve their rights under the Kansas savings statute, but the judge in their case allowed them to dismiss voluntarily, without prejudice. Accordingly, res judicata, or claim preclusion, would not apply as to the Nobles, who have never had a judgment on the merits issued against them. Also, although Gun Shop's brief mentions the term collateral estoppel, it is devoid of any argument or analysis as to how it could possibly apply to either plaintiff in this case. Because the Nobles' claims, at least, have not successfully been shown to be barred by res judicata or collateral estoppel, both affirmative defenses which must be properly pleaded, we find that this appeal is not moot and proceed to analyze whether personal jurisdiction exists over Gun Shop.
The plaintiffs' first point on appeal is that the trial court erred in dismissing their case for lack of personal jurisdiction over Gun Shop. When reviewing a trial court's dismissal of an action for lack of personal jurisdiction, `"all facts alleged in the petition are deemed true and the plaintiff given the benefit of every reasonable intendment."' Hollinger v. Sifers, 122 S.W.3d 112, 115 (Mo. App. W.D. 2003) (quoting Shouse v. RFB Constr. Co., 10 S.W.3d 189, 192 (Mo. App. W.D. 1999)). Once the defendant raises the issue of lack of personal jurisdiction, the burden shifts to the plaintiffs to make a prima facie case that personal jurisdiction exists over the defendant. Id. The sufficiency of the plaintiffs' showing is a legal question that this court reviews independently. Id.
The plaintiffs in this case do not allege that the trial court had general jurisdiction over Gun Shop. Instead, they allege that the trial court had specific jurisdiction pursuant to Missouri's long-arm statute, section 506.500. To establish specific in personam jurisdiction over a defendant, the plaintiff must show: (1) that the long-arm statute applies to the defendant, and (2) that the principles of due process are satisfied. Longshore v. Norville, 93 S.W.3d 746, 751-52 (Mo. App. E.D. 2002). Many Missouri courts, however, have merged the analysis of these two criteria. See, e.g., Conway v. Royalite Plastics, Ltd., 12 S.W.3d 314, 318-19 (Mo. banc 2000) and State ex rel. Bank of Gering v. Schoenlaub, 540 S.W.2d 31, 31-35 (Mo. banc 1976) (applying due process...
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