Salenia A.B. v. Air Nat. Aircraft Sales & Services, Inc., WD

• Court: Court of Appeal of Missouri (US)
• Citation: 712 S.W.2d 386
• Docket Number: No. WD,WD
• Parties: SALENIA A.B., A Swedish Corporation, Respondent, v. AIR NATIONAL AIRCRAFT SALES & SERVICES, INC., A California Corporation, Appellant. 36940.
• Decision Date: 08 April 1986

Page 386

712 S.W.2d 386

SALENIA A.B., A Swedish Corporation, Respondent, v. AIR NATIONAL AIRCRAFT SALES & SERVICES, INC., A California

Corporation, Appellant.

No. WD 36940.

Missouri Court of Appeals,

Western District.

April 8, 1986.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 22, 1986.

Application to Transfer Denied

July 15, 1986.

S. Preston Williams, Thomas E. Barzee, Jr., Williams & Barzee, North Kansas City, for appellant.

John Harl Campbell, Campbell & Meyers, Kansas City, Law Firm of Edward A. McConwell, Overland Park, Kan., for respondent.

Before TURNAGE, P.J., and DIXON and LOWENSTEIN, JJ.

LOWENSTEIN, Judge.

The defendant, Air National Aircraft Sales and Services, Inc. (Air National), appeals from a judgment and order entered by the Circuit Court of Platte County, Missouri, on February 12, 1985. This appeal stems from an action filed by Salenia, A.B. (Salenia), a foreign corporation and the plaintiff-respondent, to attach an aircraft it had leased to Air National. The issues raised on appeal relate to the trial court's assertion of personal jurisdiction over the nonresident defendant, the sufficiency of service of process on Air National, the validity of a writ of attachment issued by the court, the effect of a petition in bankruptcy filed by Air National subsequent to the suit in question, and the authority and jurisdiction of the trial court to award damages to Salenia.

Salenia is a resident and citizen of Sweden. Air National is an Ohio corporation with its principal place of business in Monterey, California. The origins of this case date back to March, 1984, at which time Air National was in the charter airline business. On March 3, 1984, Salenia and Air National entered into a written contract whereby Air National leased a Boeing 747 from Salenia. On May 22, 1984, the parties modified the lease contract by an addendum. Air National used the aircraft to provide charter services for tour groups.

On July 16, 1984, Air National entered into a separate contract with Trans World Airlines, Inc. (TWA) for maintenance work to be performed by TWA on the aircraft at its overhaul base at Kansas City International Airport (KCI) in Platte County, Missouri. While the aircraft was in the overhaul facility, Salenia filed a complaint in the United States District Court for the Western District of Missouri on July 19, 1984, alleging breach of contract, conversion and violation of a Florida statute. On that date, the federal district court issued an ex parte writ of attachment against the aircraft. However, on July 25, 1984, the federal court issued an order dismissing the complaint for improper venue.

Salenia then filed this suit by a Petition for Declaratory Judgment against Air National in the Circuit Court of Platte County on July 26, 1984, again alleging breach of contract, conversion and violation of a Florida Statute. Air National's failure to make monthly rental payments was the primary breach alleged by Salenia. On the same date, the circuit court issued an ex parte Order of Writ of Attachment, as well as the Writ of Attachment against the aircraft. No attachment bond was filed.

In response, reserving its objections to jurisdiction, Air National, filed a "Motion to Reconsider Order of Writ of Attachment" on July 30, 1984. On the same date, TWA filed a Motion for Leave to Intervene because it had possession of the aircraft and had not been paid for the maintenance work completed. On July 31, 1984, the circuit court conducted a hearing on the two motions and granted TWA's Motion for Leave to Intervene.

The court overruled Air National's motion, but it did order the Writ of Attachment conditionally dissolved pursuant to Rule 85.10 and granted Air National possession of the aircraft subject to the terms of the lease agreement and the addendum and subject to Air National's compliance with certain conditions to be met by August 1, 1984. These conditions entailed paying the monies due to TWA, preventing the lapse of insurance on the aircraft, depositing cash in the registry of the court as security for a bond, and paying the monthly rental due on August 1st.

On August 2, 1984, the court conducted a second hearing, found Air National had failed to comply with the court's order of July 31st, and entered an order giving possession of the aircraft to Salenia if Salenia satisfied TWA's claim and posted a $1,000,000 surety bond. Air National appeared and again reserved objections to jurisdiction. Salenia posted the bond, satisfied TWA's claim, and on August 8, 1984, took possession of the aircraft and had it flown to Luxembourg.

On August 9, 1984, Salenia requested a summons be issued for service outside Missouri on Air National. The sheriff of Monterey County, California, returned the summons on September 21, 1984, stating he was unable to locate and serve Air National. In the meantime, Air National filed a Bankruptcy Petition in United States Bankruptcy Court on September 12, 1984.

In December, 1984, TWA filed a notice of dismissal of its intervention petition. On February 12, 1985, this case was heard after which the court ordered (1) the written lease contract and addendum were properly terminated by Salenia on July 2, 1984, by reason of a material breach and default of Air National, (2) the rights and interests of Air National to the aircraft were terminated effective July 2, 1984, (3) Salenia's attachment bond was dissolved, and (4) Salenia was awarded damages resulting from the material breach of Air National in the sum of $859,893.

This court first takes up Air National's point dealing with the writ of attachment due to dereliction of Rule 85. Air National claims the trial court erred in issuing the Writ of Attachment against the aircraft because Salenia failed to post a bond as required by Rule 85.04 and Rule 85.08.

Rule 85.04 provides "[i]f the court finds that the facts stated in the affidavit show that the writ of attachment should issue, the writ shall be issued upon compliance with Rule 85.08. " (Emphasis added). Rule 85.08 provides:

(a) Claimant to Furnish Bond. The claimant shall file a sufficient bond, approved by the court, executed by the claimant as principal and one or more sufficient sureties to the effect that they are bound to the State of Missouri in an amount set by the court but not exceeding double the amount claimed.

(b) Conditions of Bond. The conditions of the bond shall be that the claimant shall:

(1) Prosecute his claim without delay and with effect;

(2) Refund all sums of money that may be adjudged to be refunded to the owner of the property or found to have been received by the claimant and not justly due to him;

(3) Pay all damages and costs that may accrue to the owner of the property, any garnishee or interpleader by reason of the attachment, or any process or proceeding in the action, or by reason of any judgment or process thereon; and

(4) Pay all damages and costs that may accrue to any sheriff or other officer by reason of acting under the writ of attachment, following the instructions of the claimant.

(c) When No Bond Required. If the State or a county is a claimant in its own behalf no bond shall be required.

Attachment proceedings in Missouri are special and extraordinary proceedings, mandating strict compliance with statutory provisions and the Missouri Rules of Civil Procedure. State ex rel. Froidl v. Tillman, 662 S.W.2d 907, 909 (Mo.App.1983); State ex rel. Belle Starr Saloon, Inc. v. Patterson, 659 S.W.2d 789, 790-91 (Mo.App.1983). "When such strict compliance has not been had, the writ of attachment will be irregular and the court acquires no jurisdiction over any res." State ex rel. Froidl, supra, at 909.

Salenia did not file a properly executed bond prior to the issuance of the writ of attachment on July 26, 1984. In fact, Salenia did not file an approved surety bond in the amount of $1,000,000 until August 8, 1984, the day the aircraft was flown to Luxembourg and 13 days after the writ of attachment issued. Salenia's failure to file a bond until August 8, 1984, ignores the plain language of Rule 85.04 and 85.08(a), which mandates the furnishing of a bond before the writ of attachment issues. See State ex rel. Belle Starr, supra, at 790.

Salenia offers three arguments to counter the bond requirement of Rule 85.08(a). First, Salenia relies on § 521.050, RSMo 1978, which deals with suits by attachment and provides in pertinent part:

Any plaintiff wishing to sue by attachment may file ... a petition or other lawful statement or exhibit of his cause of action, and, except in suits instituted by the state or a county in its own behalf, and also, except in cases where the defendant is not a resident of the state of Missouri, in either of which cases no bond shall be required, shall also file an affidavit and bond ... (Emphasis added).

In its Motion for Order for Writ of Attachment, Salenia moved the court to attach the aircraft "pursuant to VAMS 521.050 without bond" and now claims it was not required to post a bond because Air National was not a resident of Missouri. However, Rule 85.08(c) provides an exception to the bond requirement only if the state or a county is the claimant. The rule does not adopt the statutory exception to the bond requirement "in cases where the defendant is not a resident of the state of Missouri." Compare § 521.050, RSMo.1978 with Rule 85.08.

Salenia argues no inconsistency exists between the statute and the rule and the "clear implication from Rule 85.08 is that its provisions apply only in those cases where a bond is not excused pursuant to § 521.050." This court cannot agree. The Missouri Supreme Court adopted Rule 85.08 in its present form on June 10, 1980, to become effective on January 1, 1981. Prior to this time, Rule 85.04 was almost identical to § 521.050. Rule 85.04 then stated "except in cases where the defendant is not a resident of the State of Missouri ... no bond shall be...