State ex rel. K-Mart Corp. v. Holliger

• Decision Date: 23 February 1999
• Docket Number: No. 81066,K-MART,81066
• Parties: STATE ex rel.CORPORATION, Relator, v. Honorable Ronald R. HOLLIGER, Circuit Court of Jackson County, Division 9, Respondent.
• Court: Missouri Supreme Court

Page 165

986 S.W.2d 165

STATE ex rel. K-MART CORPORATION, Relator, v. Honorable Ronald R. HOLLIGER, Circuit Court of Jackson

County, Division 9, Respondent.

No. 81066.

Supreme Court of Missouri,

En Banc.

Feb. 23, 1999.

David C. Stout, Chuck N. Chionuma, Kansas City, for Relator.

Mark R. Schmid, Schmid & Roswold, P.C., Kansas City, for Respondent.

Randy W. James, Risjord & James, P.C., Missouri Ass'n of Trial Attys., Overland Park, KS, for Amicus Curiae.

MICHAEL A. WOLFF, Judge.

Gladys Strawn, a Missouri resident, was injured in a fall in a K-Mart store in Colorado on December 24, 1994. K-Mart Corporation is incorporated in Michigan and is registered to conduct business in Missouri. K-Mart has retail stores in various locations in Missouri, including Jackson County, where Gladys Strawn lives and where she filed her lawsuit. Service of process was made in Missouri by serving K-Mart's registered agent pursuant to section 506.150(3). ¹

K-Mart moved to dismiss for lack of personal jurisdiction or, in the alternative, to dismiss on grounds of forum non conveniens. K-Mart obtained a preliminary writ of prohibition in the Court of Appeals, Western District. After opinion in the court of appeals, this Court granted transfer.

The preliminary writ of prohibition is quashed.

THE PERSONAL JURISDICTION ISSUE

The only jurisdictional issue is whether Missouri law authorizes the circuit court for Jackson County to hear Gladys Strawn's claim for relief against K-Mart. K-Mart concedes that there are no constitutional impediments, under the due process clause of the fourteenth amendment, to Missouri's exercise of jurisdiction over K-Mart.

K-Mart bases its contention that Missouri courts lack jurisdiction on the remarkable assertion that the only means by which jurisdiction may be obtained over a foreign corporation is through the state's long-arm statute, section 506.500. ²

K-Mart's theory turns jurisdictional history on its head. Prior to the enactment of Missouri's long arm statute in 1967, Missouri cases uniformly held that a foreign corporation present and conducting substantial business in Missouri was subject to the jurisdiction of our courts. Some of these cases involved service in Missouri pursuant to section 506.150 and its predecessor statutes. See, Collar v. Peninsular Gas Co., 295 S.W.2d 88, 90 (Mo.1956), citing State ex rel. Ferrocarriles Nacionales De Mexico v. Rutledge, 331 Mo. 1015, 56 S.W.2d 28 (1932). See also Painter v. Colorado Springs & Cripple Creek Dist. Ry. Co. 127 Mo.App. 248, 104 S.W. 1139 (1907); State ex rel. Nashville, C. & St. L. Ry. v. Hall et al., 337 Mo. 1229, 88 S.W.2d 342 (1935); Wooster et al. v. Trimont Mfg. Co., 356 Mo. 682, 203 S.W.2d 411 (1947); Ward v. Cook United, Inc., 521 S.W.2d 461 (Mo.App.1975); and Morrow v. Caloric Appliance Corporation, 372 S.W.2d 41 (Mo.1963). Where a corporation's registered agent is served in Missouri, assertion of jurisdiction was no more than adherence to the traditional understanding that a state may condition a corporation's doing business upon the appointment of an agent in the state for service of process. Lafayette Ins. Co. v. French, 59 U.S. 404, 18 How. 404, 15 L.Ed. 451 (1856). Though Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877), limited extraterritorial exercise of jurisdiction under the due process clause of the fourteenth amendment, the Court in dictum left intact the traditional understanding expressed in French and other early cases. 95 U.S. at 735.

Extraterritorial exercise of jurisdiction was rare prior to International Shoe v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Most assertions of personal jurisdiction were premised on a defendant's presence, as specified in Pennoyer, the defendant's domicile, e.g., McDonald v. Mabee, 243 U.S. 90, 37 S.Ct. 343, 61 L.Ed. 608 (1917), or consent, e.g., Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927).

Since a corporation is a fictional entity, ascertaining its "presence" sometimes is conceptually difficult. Thus, traditionally, jurisdiction was exercised over corporations by service upon an agent in the forum state. International Shoe authorized extraterritorial exercises of jurisdiction where a defendant had certain "minimum contacts" with the forum state so that the exercise of jurisdiction does not offend "traditional notions of fair play and substantial justice" embodied in the due process clause. Id. at 316, 66 S.Ct. 154. International Shoe thus shifted the focus of jurisdictional inquiry from "Is the defendant there?" to "Is it fair?"

In 1957 Illinois enacted the first of the so-called "long-arm" statutes to take advantage of the expanding notions of jurisdiction embodied in International Shoe. Its statute specified that certain acts of a defendant in the forum state--- for example, the commission of a tortious act or the making of a contract--- would authorize a court to allow service outside the state. Ill.Rev.Stat.1957, Chap. 110, para. 16 and 17. Ten years later, the Missouri General Assembly followed suit, enacting a statute whose wording was similar to the Illinois long-arm statute. Comment, "Expanding Permissible Bases of Jurisdiction in Missouri: The New Long-Arm Statute," 33 Mo. L.Rev. 248, 249, fn. 6 (1968). The current version is section 506.500, the statute K-Mart relies upon in this case. This Court has determined that the legislative intent of the Missouri General Assembly in passing section 506.500 "was to extend the jurisdiction of the courts of this state over nonresident defendants to the extent permissible K-Mart relies on the long-arm statute for its argument that Missouri does not have personal jurisdiction in this case because the claim did not arise out of one of the activities enumerated in the statute. However, long-arm statutes, as the name implies, are intended to expand the reach of the law of the state to authorize jurisdiction over foreign corporations that are not necessarily authorized to do business in the state but whose activities justify personal jurisdiction. In fact, we can find no Missouri case challenging jurisdiction over a foreign corporation whose registered agent was served in Missouri. The provisions of section 506.150 are incorporated into rule 54.06, which explicitly applies only to "service outside the state." In this case, there is no need for a "long-arm" to reach K-Mart outside of Missouri, because K-Mart has a registered agent in Missouri.

under the due process clause of the fourteenth amendment of the constitution of the United States." (Emphasis added.) State ex rel. Deere and Co. v. Pinnell, 454 S.W.2d 889, 892 (Mo.1970). See also, State ex rel. Newport v. Wiesman, 627 S.W.2d 874 (Mo.1982).

We reject K-Mart's argument that Missouri's long-arm statute is the exclusive means of obtaining jurisdiction over a foreign corporation. ³ If its argument were to succeed, it would severely limit the reach of Missouri law and the protection that law gives Missouri residents and others authorized to use our state's courts. Under section 351.582(2), issuance of a certificate of authority to a foreign corporation authorizes it to conduct business in Missouri and makes it "subject to the same duties, restrictions, penalties, and liabilities...imposed on, the domestic corporation of like character."

Missouri courts historically have interpreted the intent of this statute to "...subject the foreign corporation to such liabilities for actions against it as a citizen would have against a domestic corporation...for its acts...whereby an injury be done to another person or corporation...." Sidway v. Missouri Land & Live-Stock Co., 101 Fed.481, 488 (Cir.Ct.W.D.Mo.Dist.Ct.W.D.1900).

We need not address the issue of whether registration of a foreign corporation and designation of an agent for service of process, without more, is always sufficient to confer jurisdiction. ⁴ The limitation on such assertion may be, of course, the due process clause of the United States constitution. But in this case, K-Mart agrees that it is conducting substantial and continuous business in Missouri and that its contacts with Missouri are Accordingly, we hold that Missouri's long-arm statute is inapplicable to this situation and hold that jurisdiction is proper in this case. ⁵

sufficient to satisfy due process requirements.

FORUM NON CONVENIENS

K-Mart argues in the alternative that the court should dismiss the action on the grounds of forum non conveniens, which would require the plaintiff to go to Colorado to litigate her claim. Under this doctrine, a trial court may decline to exercise jurisdiction that it clearly has, dismiss the action, and thus require the plaintiff to bring the claim in the courts of a jurisdiction that arguably is more convenient.

While a petition for writ of prohibition may be a proper means of obtaining relief from an order denying dismissal on forum non conveniens grounds, the discretionary nature of the trial court's order portends that a writ rarely will be granted. Prohibition is an extraordinary remedy to prevent exercise of extrajurisdictional power and is not a writ of right. A remedial writ is not an appropriate remedy to resolve issues which may be addressed through appeal. Knisley v. State, 448 S.W.2d 890 (Mo.1970); cf., State ex rel. Miller's Mutual Ins. Assn. v. Sanders, 538 S.W.2d 708 (Mo. banc 1976).

The general rule is that, if a court is entitled to exercise discretion in the matter before it, a writ of prohibition cannot prevent or control the manner of its exercise, so long as the exercise is within the jurisdiction of the court. 63C Am.Jur.2d Prohibition Sec. 49 (1997). In Missouri, prohibition will not lie to control administrative or ministerial functions, discretionary actions, or legislative powers. Bash v. Truman, 335 Mo. 1077, 75 S.W.2d 840, 843 (1934). See also State ex rel. Sisters of St. Mary v. Campbell, 511 S.W.2d 141 (Mo.App.1974), Allen v. Yeaman, 440 S.W.2d 138 (...