Stavrides v. Zerjav, 62028
| Decision Date | 16 February 1993 |
| Docket Number | No. 62028,62028 |
| Citation | 848 S.W.2d 523 |
| Parties | Pete D. STAVRIDES, Plaintiff/Appellant, v. Frank L. ZERJAV, Defendant, and Pinecrest Partners Ltd., Defendant, and Peoples Bank Of Bloomington, Defendant/Respondent. |
| Court | Missouri Court of Appeals |
Robert D. Arb, Arb & Martin, Valley Park, for appellant.
Todd J. Aschbacher, St. Louis, William J. O'Herin, Florissant, for respondent.
Plaintiff appeals from the judgment of the trial court dismissing his cause of action against defendant, an Illinois bank, for lack of personal jurisdiction. We affirm on the grounds that plaintiff did not make a prima facie showing that defendant had committed a tortious act, made a contract, or transacted business in this state. Further, the trial court did not err in excluding an affidavit submitted by plaintiff on the day of the hearing.
Plaintiff, Pete D. Stavrides, a Missouri resident, filed suit against Peoples Bank of Bloomington, an Illinois corporation, and against Frank L. Zerjav and Pinecrest Partners Ltd., both Missouri residents, for damages resulting from a chain of events which occurred when Stavrides made his final payment on a promissory note to Pinecrest instead of to Peoples, which had become escrowee to receive the payments on the note. After Peoples filed a motion to dismiss for lack of personal jurisdiction, Stavrides obtained leave to file an amended petition. Peoples moved to dismiss the amended petition for lack of personal jurisdiction and attached a supporting affidavit and exhibits. Stavrides filed an affidavit in opposition to the motion on the day of the hearing. After the hearing the trial court granted Peoples' motions objecting to the affidavit and to dismiss. The trial court found no just reason for delay and entered judgment against Stavrides and in favor of Peoples under Mo.R.Civ.P. 74.01(b). Stavrides appeals from this judgment.
The facts before the trial court at the time of its ruling on the motion to dismiss are found in the amended petition and the exhibits incorporated therein and in the affidavit and exhibits filed in support of the motion to dismiss. The amended petition and the attached exhibits disclose that in 1983 Stavrides executed a series of promissory notes with various maturity dates to Pinecrest in connection with Stavrides' purchase of a share in Pinecrest, a limited partnership in which defendant Frank L. Zerjav was general partner. The final payment of $16,920.00 was due before March 1, 1987. At the time Stavrides executed the promissory notes, he signed an Indemnification and Pledge Agreement with Integrity Insurance Company, as surety, in consideration of its issuance of an Investor Financial Surety Bond. The indemnity agreement provided that if Integrity incurred a loss under its bond as a result of Stavrides' default on his payments on the promissory notes, Stavrides would indemnify Integrity, whether or not Stavrides had any defenses under the note or otherwise against the partnership, general partner, lender or any other party.
On January 15, 1985 Peoples wrote to Stavrides advising him that his note for capital contribution to Pinecrest had been assigned to Peoples as Trustee and his payments beginning March 1, 1985 should be sent to Peoples. It further advised, "In the event you have any questions, please don't hesitate to contact the General Partner of the Partnership." On February 10, 1987 Zerjav wrote Stavrides and advised him that his final capital contribution of $16,920.00 should be forwarded to arrive no later than March 1, 1987, and enclosed a self-addressed envelope. Stavrides alleges he mailed checks in the amount of $16,920.00 to Zerjav at Pinecrest's St. Louis County address. Zerjav endorsed the checks as general partner and paid them to "RVML Project 5100." Zerjav sent a memorandum to Stavrides which acknowledged On January 27, 1989 Integrity Insurance in Liquidation in New Jersey advised Stavrides by mail that Peoples had never received his 1987 payment of $16,920.00, that Peoples had filed a surety claim with the State of New Jersey as liquidator of Integrity, and that Stavrides would be liable under his Indemnification and Pledge Agreement with Integrity to reimburse Integrity for all liability incurred as a result of Stavrides' nonpayment. The New Jersey Commissioner of Insurance subsequently filed suit against Stavrides, which Stavrides settled in the amount of $16,920.00.
receipt of the payment and advised him to disregard a notice that had been sent from "a third party lender" that a further payment was owed. The memorandum further advised that an escrow agent was required to submit unpaid notes to the surety bonding carrier but that "such amounts" would exceed any amount determined collectible by the escrowee.
Stavrides' claims against Peoples are stated in Counts IV-VII of the amended petition. In Count IV Stavrides seeks damages for fraudulent misrepresentation arising out of Peoples' representation in its surety claim to the State of New Jersey that Stavrides had defaulted on his 1987 payment. In Count V Stavrides seeks damages for breach of contract contending that Peoples as "assignee" of the promissory note, violated the promissory note contract by declaring a breach for nonpayment when he had made payment. In Count VI Stavrides seeks damages for "breach of duty of good faith" as a result of Peoples' declaration and representation that Stavrides had not made the payment without first making inquiry of Stavrides. In Count VII Stavrides sought damages for fraudulent misrepresentation arising out of Peoples' representation in its surety claim that Stavrides had defaulted on payment, alleging alternative facts to Count IV.
Stavrides further alleges that Peoples was subject to Missouri jurisdiction under its long arm statute as assignee of the notes which were made in Missouri and because its letter of February 15 advising Stavrides to contact Zerjav if he had any questions was a creation of agency by which Peoples contracted and transacted business in Missouri. He also alleges that Missouri courts had jurisdiction with respect to the misrepresentation and "breach of good faith" claims because Stavrides was harmed in Missouri by this out-of-state conduct.
Peoples moved to dismiss Counts IV-VII under Mo.R.Civ.P. 55.27(a)(2) for lack of personal jurisdiction on the grounds it had no minimum contacts with the State of Missouri and had not performed the necessary acts in Missouri to subject itself to jurisdiction under the long arm statute. Peoples attached to its motion a copy of the Escrow Agreement and the affidavit of Owen J. Mair, Senior Vice President-Trust of Peoples, which incorporated the Escrow Agreement. The Escrow Agreement was between Pinecrest Associates, Limited (Pinecrest Associates) 1, Ralph and Elsa Endress (Endress), Bloomington Federal Savings & Loan Association (lender) and Peoples. It recited that Pinecrest Associates was indebted to Endress in the amount of $528,000.00 and had agreed to assign partner capital notes in that aggregate amount to Endress in a manner so as to afford Endress the opportunity to secure bonding of the notes for hypothecation purposes. It also recited that lender had advanced Endress money in reliance on Pinecrest's agreement, that Integrity Insurance Company had issued a surety bond guaranteeing payment of the notes and that Integrity had requested that the notes be transferred to an escrowee to receive payments on the notes. It further recited that Peoples had agreed to receive the notes and collect payments thereon as escrowee without any obligation to enforce payment thereon. The notes were for payments due on March 1, 1985, March 1, 1986, and March 1, 1987.
Under the terms of the agreement, Pinecrest Associates agreed to notify the obligors of the notes to make all payments to Peoples. Peoples agreed to pay out such sums as were collected without obligation Mair's affidavit, made on personal knowledge, recited that Peoples, at the time of the acts complained of and at the time of the affidavit, 1) was an Illinois corporation with its principal place of business in Bloomington, Illinois; 2) was not authorized to do business in Missouri; 3) did not have an office in Missouri; 4) did not own any real estate in Missouri; and 5) did not have any agent for service of process or otherwise in Missouri. He further averred that, during the time covered by the petition, Peoples conducted no business in Missouri and no agent of Peoples entered Missouri to perform any acts mentioned in the petition. He also attested that Peoples was solicited to enter into the Escrow Agreement; that all parties to the Agreement were non-Missouri residents except for Pinecrest Associates; that all of the negotiations connected with the Agreement took place outside Missouri; and that the Agreement was executed in Bloomington, Illinois.
to enforce collection. Peoples also agreed that, in the event an obligor failed to pay, Peoples would notify the surety and the other parties to the Escrow Agreement and send all defaulted notes to the surety. The address of Pinecrest Associates was listed in the Agreement as "c/o Frank Zerjav" in St. Louis County, Missouri. Someone other than Zerjav signed the agreement on behalf of Pinecrest Associates. The record does not further disclose the relationship between Pinecrest Associates and Pinecrest or how Pinecrest Associates obtained the notes, but this information is not necessary to resolve the issues raised in this appeal.
Stavrides' first two points relate to asserted trial court error in sustaining Peoples' motion to dismiss for lack of personal jurisdiction. When a defendant raises the issue of lack of personal jurisdiction in a motion to dismiss, the plaintiff has the burden of making a prima facie showing that the trial court has personal jurisdiction...
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