State ex rel. Sperandio v. Clymer

• Decision Date: 17 May 1979
• Docket Number: No. 60411,60411
• Citation: 581 S.W.2d 377
• Parties: STATE ex rel. Lawrence SPERANDIO, Relator, v. Honorable Lewis W. CLYMER, Judge, 16th Judicial Circuit, Respondent.
• Court: Missouri Supreme Court

Page 377

581 S.W.2d 377

STATE ex rel. Lawrence SPERANDIO, Relator, v. Honorable Lewis W. CLYMER, Judge, 16th Judicial Circuit, Respondent.

No. 60411.

Supreme Court of Missouri, En Banc.

May 17, 1979.

John C. Milholland, Harrisonville, E. J. Murphy, Butler, for relator.

Jack G. Beamer, Jerry M. Drewry, McKenzie, Williams, Merrick, Beamer & Wells, Kansas City, for respondent.

SIMEONE, Judge.

This is an original proceeding in mandamus brought by relator Lawrence Sperandio against the respondent, judge of the 16th circuit, commanding him to set aside an order of dismissal made on September 19, 1977, dismissing a Utah physician from a cause pending in the court. We have original jurisdiction. Art. V, § 4, Mo.Const.

Relator, Mr. Sperandio asserts that the service of process on Dr. Paul Pemberton, a Utah physician, was proper under the provisions of § 506.500, RSMo 1969 (Rule 54.06) which reads in part as follows:

"1. Any person or firm, whether or not a citizen or resident of this state, or any corporation, who in person or through an agent does any of the acts enumerated in this section, thereby submits such person, firm, or corporation, and, if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of such acts:

"(3) The commission of a tortious act within this state;".

Mr. Sperandio suffered from a pain producing but non-disabling condition of subluxation of his hip joints. Upon referral by his family physician on or about September 12, 1967, he consulted and engaged the services of Dr. Harvey R. Michael and Dr. Daniel L. Yancey concerning the condition. The petition filed by plaintiff alleges that Drs. Michael and Yancey told plaintiff that he was afflicted with a deformity of his hips "with a resulting condition of subluxation of the femoral heads" and that unless he submitted to surgery to remedy the condition, the pain would grow progressively worse.

On September 14, 1967, Dr. Michael forwarded a letter to Dr. Paul Pemberton, an orthopedist in Salt Lake City, Utah. Dr. Pemberton is apparently an expert in a surgical operation procedure which he developed and which is commonly called the "Pemberton Procedure." This procedure was developed for use on children. In the letter, Dr. Michael wrote that during his residency at medical school he became interested in the problem of "congenital hip dislocation." He informed Dr. Pemberton that Mr. Sperandio represents "an old congenital dysplasia with residual shallow acetabula." The letter described the condition of Mr. Sperandio and referred to x-rays which were also forwarded. The letter indicated subluxation of both femoral heads. Dr. Michael asked Dr. Pemberton his "opinion" as to "what you think the etiology of his present hip problem is as well as what you would consider the most satisfactory treatment. I know that you have mentioned, during your visits to Oklahoma City, (where Dr. Michael was a resident and where Dr. Pemberton made instructive visits) doing periaceabular osteotomy in adults. I think I am fairly familiar with this procedure in children, but I know that the operation must be altered when done in the adult patient. I would like, first of all, to have your opinion as to whether you feel this operation is indicated in this particular patient, and secondly, what alterations in the procedure are necessary in the adult." The letter to Dr. Pemberton was unsolicited.

On September 21, 1967, Dr. Pemberton replied to Dr. Michael. He concurred in Dr. Michael's opinion that there was a "bilateral congenital subluxation" of the hip. "The problem as to what should be done here in a man of this age . . . is a serious one . . . . The operation that I have been doing in the adult has been a modification of the one that I have developed for the congenital hip in a child . . . ." Dr. Pemberton then described the technique of an operation in an adult. On the x-rays he drew "this out on the left hip" and returned the x-rays to Dr. Michael. In the letter, he cautioned Dr. Michael as to certain matters. He indicated that post-operative care would be about what it was in children with two months in a cast and then crutches for about another thirty days. He stated that "I have done quite a number of these now and they have worked out well." He concluded the letter by stating "Let me know if there is any other question you have about this and also if you do go ahead with this procedure, I would like to hear from you as to how it works out." There is nothing in the record to indicate that Dr. Pemberton received any fee.

On December 2, 1967, Mr. Sperandio submitted to surgery upon his left hip performed by Drs. Michael and Yancey. When he was discharged, it was alleged that Sperandio had an infection at the operative site. Not satisfied with the results of the operation, Sperandio filed suit in November, 1969 against Drs. Michael and Yancey in Greene County. In 1972 a deposition was taken of Dr. Pemberton in Utah, and Sperandio's counsel was present. During the course of the deposition, Dr. Pemberton (1) in response to a question whether he felt that the letter and x-rays were adequate to diagnose that Mr. Sperandio had congenital hip dysplasia, answered, "yes", (2) stated that the lines on the x-ray indicates the site of the osteotomy which he recommended, and (3) said ". . . it looks like the bones are where they ought to be."

Relator learned in May, 1974 that the hip bones remained subluxated and that the surgery had not corrected the condition. He then joined Dr. Pemberton as a defendant in the Greene County suit. This suit was dismissed and on January 3, 1975, Sperandio filed the present action against Drs. Michael, Yancey, Pemberton and others in two counts in Jackson County. The first count was based on medical malpractice and the second count was based on a conspiracy to prevent relator from learning of his true residual condition. Service of process was had on Dr. Pemberton in Utah and Dr. Pemberton moved to quash the process alleging that he has never been a resident of Missouri and the only contact between him and other defendants was the letter of September 14 and his response. ¹ Jurisdiction was predicated on § 506.500, and Rule 54.06. On March 7, 1975 the judge sustained Pemberton's motion to quash. Some two years later, in June, 1977, relator sought mandamus in the Court of Appeals, Western District to reinstate service of process, which was denied on June 23, 1977.

Service of process was again served on Dr. Pemberton in Utah on August 3, 1977. Dr. Pemberton filed a "motion to dismiss" in which he, "appearing specially for purposes of this motion and for no other reason," moved the court to dismiss him from the case because (1) he was discharged from the lawsuit on March 7, 1975; (2) relator sought a writ of mandamus in the court of appeals which was denied; the petition served on him on August 3, 1977 was the same petition as previously served on defendant and there is "nothing before the court to indicate that any fact has changed" hence the matter is res judicata so as to prevent plaintiff from proceeding further against Dr. Pemberton. On September 19, 1977, respondent judge sustained the motion to dismiss ordering that "Paul A. Pemberton is dismissed from the captioned petition with prejudice to plaintiff refiling against defendant Pemberton in the State of Missouri."

It is this order that relator seeks to set aside and to command the respondent to proceed to exercise jurisdiction over the person of Dr. Pemberton. The petition for mandamus was sought in this court on October 17, 1977. Attached to the petition were several exhibits including the petition in damages in two counts. ² On November 14, 1977, we issued our alternative writ, and pleadings joined issue. ³

On April 10, 1978, we handed down an opinion in which it was held that the alternative writ be made peremptory because there were sufficient minimum contacts with Missouri to make Dr. Pemberton amenable to service of process in this state. State ex rel. Sperandio v. Clymer, 568 S.W.2d 935 (Mo. banc 1978). In that opinion we held that there were sufficient minimum contacts to satisfy due process under International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), since (1) Missouri has an interest in securing redress for its citizen who had had no contact with Utah and who was injured in Missouri and (2) Dr. Pemberton's acts were performed for the purpose of causing an effect in Missouri.

After a petition for writ of certiorari to the Supreme Court of the United States, that court on October 2, 1978, 436 U.S. ---, 99 S.Ct. 69, 58 L.Ed.2d 103 vacated the judgment of this court and remanded the cause "for further consideration in the light of (Kulko v. Superior Court of California, Etc., 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978)).

"Historically the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant's person. Hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. Pennoyer v. Neff, 95 U.S. 714, 733, 24 L.Ed. 565. But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " International Shoe Co., supra, 66 S.Ct. at 158.

In State ex rel. Deere and Company v. Pinnell, 454 S.W.2d 889, 892 (Mo. banc 1970), this Court declared that the ultimate objective of § 506.500 "was to extend the jurisdiction of the courts of this state over nonresident defendants to that extent...