State ex rel. Peoples Bank of Bloomington v. Stussie, 36492

• Decision Date: 04 May 1976
• Docket Number: No. 36492,36492
• Citation: 536 S.W.2d 934
• Parties: STATE ex rel. PEOPLES BANK OF BLOOMINGTON et al., Relators, v. Hon. Harry J. STUSSIE, Respondent. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 934

536 S.W.2d 934

STATE ex rel. PEOPLES BANK OF BLOOMINGTON et al., Relators, v. Hon. Harry J. STUSSIE, Respondent.

No. 36492.

Missouri Court of Appeals, St. Louis District, Division Two.

May 4, 1976.

James M. Daly, St. Louis, for relators.

David R. Hess, Clayton, for respondent.

KELLY, Judge.

Relator, Peoples Bank of Bloomington, an Illinois corporation, and Jack Snyder, a resident of the state of Illinois, have applied for this Writ of Prohibition attacking the jurisdiction of respondent judge to proceed with a cause of action commenced against them in the Circuit Court of St. Louis County under § 506.500.1(1) RSMo 1969, the Missouri Long Arm Statute. We issued our preliminary writ, respondent filed his return and relators their Reply after which the cause was argued and taken as submitted.

This application for Writ of Prohibition has its genesis in a two count petition filed in the Circuit Court of St. Louis County by the Hess Construction Co., a Missouri corporation, with its principal place of business in St. Louis County, against Peoples Bank of Bloomington, a banking institution organized under the laws of Illinois and with its principal place of business in Bloomington, Illinois, and Jack Snyder, also an Illinois resident. Jurisdiction over the defendants was alleged to be pursuant to the provisions of § 506.500.1(1) RSMo 1969 in that both defendants and their agent, Robert Cushman, engaged in the transaction of business within the state of Missouri. Service was obtained on the defendants in Illinois and they thereafter filed their joint Motion to Quash Summons and Return of Service and to Dismiss on the grounds that they were not subject to the jurisdiction of the court because they did not transact business in the state of Missouri within the meaning of § 506.500.1(1) RSMo 1969. After an evidentiary hearing on this motion the respondent indicated to counsel for the parties that he intended to deny or overrule Relators' Motions and they thereupon made application for this Writ.

The sole issue in this case is whether the defendants transacted business in this state so as to submit themselves to the jurisdiction of the St. Louis County Circuit Court. We conclude that we cannot in this proceeding conclude that the trial court has no jurisdiction or will exceed its jurisdiction by proceeding with the cause and thereupon quash the preliminary writ heretofore issued.

Count I of Plaintiff's Petition alleges as its cause of action that the defendants acting through their agent, Robert Cushman, met with plaintiff's officers and representatives In St. Louis County on numerous occasions and discussed the merits of a proposed shopping center development in Bloomington, Illinois; that their discussions culminated in an agreement entered into between plaintiff and the Bank, as the defendant, Peoples Bank of Bloomington, shall hereinafter be identified, entitled 'Option' wherein plaintiff was granted an option for six months to enter into a lease agreement with defendant Bank as the trustee of certain real estate under McLean County Land Trust No. D--161 for the purpose of constructing a shopping center. That at the time of the execution of the option's agreement with the Bank plaintiff paid to the Bank a consideration of $10,000.00, which sum was to be refunded to the plaintiff if the Bank did not secure a rezoning of the tract of land by the proper authorities of Normal, Illinois, for the construction of a shopping center, including certain businesses, including among others, a cinema, a drive-in bank, gasoline station, fast food drive-in restaurant, motel, etc., within whose boundaries and jurisdiction the land to be developed into a shopping center is situate. That the requisite planned development was never approved by the Town authorities, and although plaintiff's officers have met with the defendants in an effort to satisfy the conditions and requirements of the Town for approval of the planned development, approval has not been granted. That plaintiff has requested the refund of its $10,000.00 but the defendants have refused to return it to plaintiff. Plaintiff prays judgment against defendants for $10,000.00 plus interests and its cost.

Count II of plaintiff's petition realleges and incorporates by reference those portions of Count I relative to the parties, their relationships, the Option agreement and payment of consideration of $10,000.00 to the Bank. It is further alleged that at the time the option agreement was entered into defendant Snyder made certain misrepresentations of material facts and omitted to inform plaintiff of certain material facts existing at the time of the execution of the option agreement. That in soliciting plaintiff to deliver the consideration for the option agreement to the Bank, for his use and benefit, Snyder, and the Bank, through him, made certain untrue statements and misrepresentations concerning Snyder's political influence whereby he had arranged for the construction of a drainage ditch, and that plaintiff would bear no cost for the widening of a roadway adjacent to the area to be developed. That Snyder omitted telling plaintiff that the Town had requested an ore company to eliminate two curb cuts at one of its filling station locations in the vicinity and that the Town required a drainage tube extension for 700 feet to an adjacent parcel or property. That believing and relying on the misrepresentations made to it, the corporation paid the consideration for the option agreement, whereas, had it known the true state of facts it would not have paid over the money. Plaintiff seeks recovery of the $10,000.00 consideration for the option agreement, $6,000.00 paid to its leasing agent as salary, and $5,000.00 architectural fee, a total of $21,000.00 actual damages and $100,000.00 punitive damages against the named defendants.

The evidence at the hearing on the Motion presented by the defendants consisted in affidavits of Mr. Snyder, one of the defendants, Owen J. Mair, a trust officer of the Bank and of Robert Cushman, the alleged agent of the defendants. Mr. Snyder and Mr. Cushman testified in person at the hearing and Mr. Jerry D. Gummere, vice-president of the Bank, also testified for the defendants. Plaintiff's evidence consisted of the testimony of Raymond Tenholder, a real estate appraiser in the employment of the Mercantile Bank in St. Louis. Documentary evidence consisting of (1) a carbon copy of a letter from Mr. Tenholder to Mr. Snyder dated November 9, 1972, (2) a carbon copy of a letter from Mr. Tenholder to Mr. Snyder dated December 11, 1972, (3) a copy of a contract between Mr. Cushman and Mr. Snyder dated October 27, 1972, (4) a lease plan prepared by Mr. Cushman dated November, 1972, (5) the option agreement between plaintiff and the Bank, and (6) a letter from Mr. Cushman to Mr. Tenholder dated December 13, 1972, also was introduced into the record.

The question for decision here is whether the evidence in this record is sufficient to prove, as a matter of law that the defendants had sufficient contacts with the state of Missouri to subject them to the long arm statute in this cause of action pleaded by plaintiff. The trial court decided there was.

Because of the result we have reached in this matter we deem it unnecessary to review in depth defendants' evidence other than to state that both defendants deny any contacts with the state of Missouri other than by a couple of telephone conversations and a letter or two and both deny that Mr. Cushman was their agent. However, the evidence viewed most favorably from respondent's viewpoint is that the Bank was Trustee of a tract of land situated in Normal, Illinois, in a trust identified as 'McLean County Land Trust D--161,' of which defendant Jack Snyder was the beneficiary. This tract of land, consisting of approximately 40 acres, is located at the northwest corner of the intersection of Main Street (U.S. 51) and Raab Road. Desirous of developing 200,000 square feet of this tract into a mall-type shopping center. Mr. Snyder contracted with Mr. Cushman on October 27, 1972, to 'develop' this property into a shopping center to be known as 'Normal Mall.' By the terms of this agreement Mr. Cushman was appointed the 'exclusive leasing agent and/or sales agent, for the shopping center' and was given ...