Tackett v. Duncan

Decision Date23 September 2014
Docket NumberNo. DA 13–0818.,DA 13–0818.
Citation2014 MT 253,334 P.3d 920,376 Mont. 348
CourtMontana Supreme Court
PartiesBrian TACKETT, Plaintiff and Appellant, v. Holly Ann DUNCAN, Stephen Stanley, Robert Hemann, in his individual capacity as an employee of Citizens Property Insurance Corporation, and Charles Tutwiler and Associates, Inc., Defendants and Appellees.

For Appellant: Brian Tackett, self-represented, Troy, Montana.

For Appellees: Sean S. Frampton, Morrison & Frampton PLLP, Whitefish, Montana (Attorneys for Charles Tutwiler and Associates, Inc.), Sean Goicoechea, Jinnifer J. Mariman, Moore, Cockrell, Goicoechea & Axelberg, PC, Kalispell, Montana (Attorneys for Robert Hemann), Stephen Stanley, self-represented, Tampa, Florida.


Justice LAURIE McKINNON delivered the Opinion of the Court.

¶ 1 Brian Tackett (Brian) appeals from the order of the Nineteenth Judicial District Court, Lincoln County, granting summary judgment to Defendants Holly Ann Duncan, Stephen Stanley, Robert Hemann, and Charles Tutwiler and Associates, Inc. We affirm.

¶ 2 The issue on appeal is whether the District Court correctly determined that it lacked personal jurisdiction over Defendants.


¶ 3 The following facts are taken from Brian's complaint, Defendants' motions to dismiss, and the documents filed in connection with Defendants' motions.

¶ 4 Defendant Holly Ann Duncan is a resident of Florida. In 2009, she signed a quit claim deed transferring to Brian's father, Grayson Tackett, her interest in real property located in Dade City, Florida. It appears that Grayson resides in Kentucky.

¶ 5 The Dade City property was insured by Citizens Property Insurance Corporation (Citizens). Citizens is “a government entity that is an integral part of the state [of Florida].” Fla. Stat. Ann. § 627.351(6)(a) 1. Citizens “provide[s] affordable property insurance to applicants who are in good faith entitled to procure insurance through the voluntary market but are unable to do so.” Fla. Stat. Ann. § 627.351(6)(a) 1. Citizens issues insurance only on property located in Florida and only through agents licensed in Florida. Citizens does not transact any business in Montana.

¶ 6 A house was located on the Dade City property. In 2010, two bolts of lightning struck the house, resulting in a fire loss. Grayson filed a claim with Citizens and hired Defendant Charles Tutwiler and Associates, Inc. (Tutwiler), a public adjusting company, to assist with handling the claim. Tutwiler is a Florida corporation. Defendant Robert Hemann was the Citizens adjustor on Grayson's claim. Hemann is a Florida resident. He has never resided, owned property, or transacted business in Montana.

¶ 7 On February 20, 2013, Citizens issued a check for $67,930.22 in settlement of the claim. The check was made out to Grayson and Duncan, the named beneficiaries under the policy, and to Tutwiler, their public adjuster. It was issued in Florida and was sent to Tutwiler in Florida. Tutwiler obtained Duncan's endorsement on the check, apparently based on Duncan's understanding that she would receive 50 percent of the proceeds once Grayson endorsed the check.

¶ 8 Brian claims that Duncan did not have any right to the insurance funds. He alleges that he reached an agreement with Tutwiler on Grayson's behalf, pursuant to which Brian would pay Tutwiler's adjusting fees and Tutwiler, in turn, would mail the Citizens check (with Tutwiler's and Duncan's endorsements) to Grayson “as a free and clear negotiable instrument needing only his signature.” Brian states that he wired $7,543.02 from his bank account in Montana as payment of Tutwiler's adjusting fees on March 15, 2013. Tutwiler then sent the endorsed check to Grayson on March 18. It appears that Grayson attempted to cash or deposit the check in Kentucky, without success. Grayson then assigned the check to Brian.

¶ 9 On March 28, 2013, Duncan's attorney (Defendant Stephen Stanley) sent a letter to Hemann at Citizens. Stanley implied that Tutwiler had wrongfully accepted payment of its adjusting fees in exchange for sending the endorsed check to Grayson. Stanley asserted that Duncan's endorsement on the check had been obtained by fraud and false pretenses. Stanley requested that Citizens cancel or stop payment on the check until the matter could be resolved.

¶ 10 Citizens ordered a stop payment on the check on April 3, 2013. In his complaint, Brian alleges that Tutwiler and Hemann effected the stop payment. Hemann denies this allegation and asserts that the stop payment was ordered by another Citizens employee. Tutwiler likewise disputes Brian's allegation, but also points out that even if Hemann and Tutwiler did in fact effect the stop payment as Brian claims, this act occurred in Florida.

¶ 11 On April 5, 2013, Hemann received an email from Brian. Brian stated that he represented himself and Grayson with regard to the Citizens check. Brian further stated that he had personally wired the funds to have the check released to Grayson. He asked that a new check be issued in Grayson's name only, for the full amount of $67,930.22, and that the new check be sent to Brian at a mailing address in Troy, Montana.

¶ 12 Also on April 5, 2013, Grayson contacted Citizens customer service and left a message requesting that Hemann contact him or Brian. Hemann returned the call but was unable to reach Grayson or Brian. Later that day, Hemann received a call from Brian. The two of them discussed the letter Stanley had sent to Hemann on Duncan's behalf. Hemann advised Brian that Citizens intended to reissue the check and that Citizens was contractually obligated to issue the check to the co-insureds, Duncan and Grayson, and to their public adjuster, Tutwiler. Hemann indicated that the reissued check would be sent to Tutwiler in Florida. Brian objected to this arrangement.

¶ 13 Brian filed the instant action in Montana's Nineteenth Judicial District Court on April 8, 2013. He alleged that Defendants had procured a wire transfer from Brian to Tutwiler under false pretenses and with the intent to defraud him. More specifically, he claimed that Duncan, Stanley, Hemann, and Tutwiler had conspired to induce payment from Brian for Tutwiler's adjusting fees of $7,543.02 and then stopped payment on the Citizens check for the $67,930.22 in insurance proceeds. Brian sought compensatory damages of $7,568.02 (which includes a $25.00 wire-transfer fee) and punitive damages. He asserted that the District Court had personal jurisdiction over Defendants because his injury arose from “a transaction which occurred in Lincoln County, Montana.”

¶ 14 Defendants all moved to dismiss for lack of personal jurisdiction. Initially, the District Court noted that, to survive a motion to dismiss for lack of personal jurisdiction, the plaintiff must make a sufficient showing that personal jurisdiction exists based not only on the pleadings, but also on the affidavits and exhibits supporting or opposing the motion. K–V Pharm. Co. v. J. Uriach & CIA, S.A., 648 F.3d 588, 591–92 (8th Cir.2011) ; Jet Charter Serv., Inc. v. Koeck, 907 F.2d 1110, 1112 (11th Cir.1990). Thus, the court converted Defendants' motions to dismiss into motions for summary judgment and set a time for discovery and supplemental briefing.

¶ 15 After the deadline for discovery had passed, the District Court entered an order granting summary judgment to Defendants. The court concluded that general personal jurisdiction did not exist because Defendants' contacts with Montana were neither continuous nor systematic. The court further concluded that specific personal jurisdiction did not exist because all of the substantial activity underlying Brian's claims occurred in Florida. The court noted that Defendants were not engaged in a business relationship with Brian, who was neither an owner of the Dade City property nor a beneficiary under the insurance policy. The court reasoned that Defendants' contacts with Montana were minimal and would not have caused them to anticipate being haled into a Montana court.


¶ 16 The existence of personal jurisdiction is a question of law, which we review de novo. See Gulf Ins. Co. v. Clark, 2003 MT 87, ¶ 11, 315 Mont. 121, 68 P.3d 673 ; El Dorado Heights Homeowners' Assn. v. Dewitt, 2008 MT 199, ¶ 14, 344 Mont. 77, 186 P.3d 1249. If the trial court conducts a preliminary hearing and makes factual findings necessary to the determination of personal jurisdiction, we review those findings of fact to determine whether they are clearly erroneous. Gulf Ins. Co., ¶ 11. No such hearing was conducted in the present case, however. The District Court based its determination of personal jurisdiction on the parties' filings supporting and opposing the motions for summary judgment. As such, our review of the District Court's decision is entirely de novo. Andersen v. Schenk, 2009 MT 399, ¶ 2, 353 Mont. 424, 220 P.3d 675.


¶ 17 Whether the District Court correctly determined that it lacked personal jurisdiction over Defendants.

¶ 18 [T]he reasonableness of asserting jurisdiction over a nonresident defendant must be assessed in the context of our federal system of government.” Simmons v. State, 206 Mont. 264, 271, 670 P.2d 1372, 1376 (1983) (citing World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) ). The Due Process Clause of the Fourteenth Amendment constrains a state's authority to bind a nonresident defendant to a judgment of its courts. Walden v. Fiore, ––– U.S. ––––, 134 S.Ct. 1115, 1121, 188 L.Ed.2d 12 (2014) (citing World–Wide Volkswagen, 444 U.S. at 291, 100 S.Ct. at 564 ). “Although a nonresident's physical presence within the territorial jurisdiction of the court is not required, the nonresident generally must have ‘certain minimum contacts ... such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” Walden, 134 S.Ct. at 1121 (ellipsis in original) (quoting ...

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