Shouse v. RFB Construction Co. Inc.

• Decision Date: 30 November 1999
• Parties: (Mo.App. W.D. 1999) Larry R. and Trudi B. Shouse, Appellants, v. RFB Construction Company, Inc., Respondent. WD56536
• Court: Missouri Court of Appeals

10 S.W.3d 189 (Mo.App. W.D. 1999)

Larry R. and Trudi B. Shouse, Appellants, v. RFB Construction Company, Inc., Respondent.

WD56536

Missouri Court of Appeals Western District

11/30/99

Appeal From: Circuit Court of Jackson County, Hon. Edith L. Messina

Counsel for Appellant: James Brandenburg

Counsel for Respondent: Michael Childs, Lana Torczon and Paul Hasty

Opinion Summary: Larry and Trudi Shouse appeal the circuit court judgment dismissing their negligence claim against RFB Construction Co. for lack of personal jurisdiction over RFB.

Division holds: The petition can be broadly construed to infer that RFB conducts substantial business in Missouri, as is required to confer personal jurisdiction to the trial court.

Smart and Ellis, JJ., concur.

Albert A. Riederer, Presiding Judge

This case involves an auto accident that Appellants allege was caused, in part, by the negligence of defendant RFB Construction, Co., Inc. The circuit court dismissed the suit on the pleadings for lack of personal jurisdiction over RFB. Finding that the petition can be broadly construed to allege that RFB conducts substantial business in the State of Missouri, we reverse and remand.

Factual & Procedural Background

Larry Shouse ("Appellant" or "Shouse") is a Kansas resident. RFB Construction Co., Inc. ("Respondent" or "RFB") is a Kansas corporation whose sole office is located in Farlington, Kansas. RFB is licensed to do business in Missouri and retains a Union, Missouri law firm as its registered agent in this state.

On the evening of April 23, 1997, a flatbed truck owned by RFB and driven by an agent of RFB ran out of gasoline and came to a complete rest in a southbound lane of State Line Road. The truck was on the west, or Kansas, side of State Line Road where the road separates Leawood, Kansas and Kansas City, Missouri. Shouse was driving his vehicle southbound on that road when it collided with the rear end of the stalled truck. Shouse claims to have sustained several serious and permanent injuries as a direct result of the collision.

On November 22, 1997, Larry Shouse and his wife Trudi Shouse filed a petition in the Circuit Court of Jackson County alleging negligence against three parties: RFB, Boatmen's National Bank and the City of Kansas City, Missouri. The petition, as amended, claimed that the accident resulted from RFB's carelessness and negligence and that RFB "is a corporation which is a resident of the State of Kansas which conducts business in the State of Missouri, maintains a registered agent for service of process in the State of Missouri, and is subject to personal jurisdiction in the State of Missouri." On December 8, 1997, a summons was served on RFB's registered agent in Missouri.

On January 7, 1998, RFB responded by filing a Motion to Dismiss for Lack of Personal Jurisdiction. Therein, RFB claimed: (1) the accident occurred in Kansas, not Missouri; (2) at the time of the accident, RFB was not conducting any business activities in Missouri and was not under any contracts to do so; (3) the accident did not "arise" out of RFB's construction business as required under the long arm statute; (4) Shouse failed to satisfy the due process requirement for the exercise of personal jurisdiction in that his petition does not allege that RFB's business transactions in Missouri have any relation to the accident in question.

In a March 3, 1998 order, the court granted RFB's motion to dismiss. Shouse then voluntarily dismissed his cause of action without prejudice as to the other two defendants. On December 11, 1998, the court issued a judgment dismissing without prejudice all claims, counterclaims and third-party claims. This appeal ensued.

Shouse contends that the judgment appealed from was a dismissal on the pleadings. RFB contends it was a summary judgment and not a dismissal on the pleadings. The trial court ordered a hearing for February 26, 1998 "[u]pon consideration of Defendant RFB Construction Company's Motion to Dismiss for Lack of Personal Jurisdiction filed January 7, 1998, and for good cause shown." The order also stated, "[t]he Court requires parties to show proof of the state boundary between Kansas and Missouri at the accident scene before it can rule on the Defendant's Motion." Subsequent to that hearing, the court issued its March 3, 1998 order, which read as follows:

ORDER

This matter came before the Court for Hearing on February 26, 1998, pursuant to Court order. All parties were represented by counsel. Upon consideration of Defendant RFB Construction Company's Motion to Dismiss for Lack of Personal Jurisdiction, filed January 7, 1998, and for good cause shown;

IT IS HEREBY ORDERED that Defendant's Motion is granted. The Court finds that it does not have jurisdiction over the Defendant RFB. RFB is consequently dismissed from this case. Costs assessed against the Plaintiff."

Under Rule 55.27, Missouri Rules of Civil Procedure, a motion to dismiss is to be treated as one for summary judgment when information outside the pleadings is presented to and not excluded by the court. Baker v. Biancavilla, 961 S.W.2d 123, 125 (Mo. App. 1998). In its appellate brief, RFB argues that "the trial court clearly considered matters outside the pleadings, including but not limited to: a police report; an affidavit from [RFB's] president Rick Beachner; and an affidavit from Kenneth H. Kerr regarding the location of the state line at the accident scene." When a motion to dismiss for lack of personal jurisdiction is made on a matter not appearing on the record, 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. Chromalloy American Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 4 (Mo. 1997) (quoting, Quelle Quiche v. Roland Glass Foods, 926 S.W.2d 211, 213 (Mo. App. 1996)). The trial court therefore heard the motion to dismiss on affidavits. Nevertheless, in order to treat a motion to dismiss as one for summary judgment, the trial court must first notify the parties that it is going to do so, and it must provide all parties a reasonable opportunity to present all materials made pertinent to a motion for summary judgment. Crede v. City of Oak Grove, 979 S.W.2d 529, 532 (Mo. App. 1998) (citing, Baker v. Biancavilla, 961 S.W.2d 123, 125-26 (Mo App. 1998)). In the case at bar, the circuit court never indicated to the parties that it intended to treat Respondent's motion to dismiss as a motion for summary judgment, and the parties were not provided a reasonable opportunity to present all materials pertinent to a motion for summary judgment. Therefore, we shall treat the court's judgment as one of dismissal on the pleadings, not summary judgment.

Standard of Review

"When reviewing the grant of a motion to dismiss a petition, all facts alleged in the petition are deemed true and the plaintiff is given the benefit of every reasonable intendment." Magee v. Blue Ridge Professional Bldg., 821 S.W.2d 839, 842 (Mo. banc 1991). Since the trial court did not state its reasons for granting the motion to dismiss, we presume dismissal was based upon one of the grounds presented, and will affirm the dismissal if any ground can sustain the court's action. Wenthe v. Willis Corroon Corp., 932 S.W.2d 791, 793-94 (Mo. App. 1996).

Discussion

In his first point, Appellant argues that "by designating an agent for receipt of service of process in Missouri, RFB has consented to the jurisdiction of Missouri courts for any cause of action, whether or not arising out of activities within the state of Missouri." Our Supreme Court declined to reach this issue in K-Mart Corp. v. Holliger, 986 S.W.2d 165 (Mo. 1999). We do not reach this issue here, because we find Appellant's second point on appeal dispositive.

In his second point, Appellant claims the trial court erred in granting the motion to dismiss because Missouri courts have general personal jurisdiction over RFB in that RFB is a corporation that conducts business in Missouri. Appellant further claims that physical presence in a jurisdiction provides a basis for asserting personal jurisdiction over a party, citing Pennoyer v. Neff, 95 U.S. 714, 24 Led. 565 (1877), and Knowlton v. Allied Van Lines, 900 F.2d 1196 (8th Cir. 1990). Appellant contends that a corporation's presence in a jurisdiction is shown by the corporation transacting a substantial part of its usual and ordinary business in the state, citing Collar v. Peninsular Gas Co., 295 SW2d 88 (Mo. 1956) and Ponder v. Aamco Automatic Transmission, Inc., 536 SW2d 888 (Mo. App. 1976). Here, Appellant argues that there is no evidence that RFB was transacting a substantial part of its usual and ordinary business in the state, but that this is merely because the case was dismissed before any discovery could be conducted that would show this to be the case.

For personal jurisdiction to exist, due process requires a defendant to have certain minimum contacts with the forum such that the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66...