Werner v. Werner

• Decision Date: 05 September 1974
• Docket Number: No. 42768,42768
• Citation: 526 P.2d 370,84 Wn.2d 360
• Parties: Antonija WERNER, aka Mrs. Otto K. Werner, and Otto K. Werner, Jr., Plaintiffs, v. Ottie C. WERNER et al., Defendants. Martin A. QUARNSTROM and Lucille A. Quarnstrom, husband and wife, et al., Appellants, v. Roger W. JOHNSON et al., Respondents.
• Court: Washington Supreme Court

Page 360

84 Wn.2d 360

526 P.2d 370

Antonija WERNER, aka Mrs. Otto K. Werner, and Otto K.

Werner, Jr., Plaintiffs, v. Ottie C. WERNER et al., Defendants.

Martin A. QUARNSTROM and Lucille A. Quarnstrom, husband and wife, et al., Appellants, v. Roger W. JOHNSON et al., Respondents.

No. 42768.

Supreme Court of Washington, En Banc.

Sept. 5, 1974.

Torbenson, Thatcher & McGrath, P.S., Thomas F. McGrath, Jr., Seattle, for appellants.

McMullen, Brooke, Knapp & Grenier, Robert E. Brooke, Seattle, for respondents.

FINLEY, Associate Justice.

Appellants Quarnstrom, et al., third-party plaintiffs below, are appealing the trial court's dismissal of their third-party complaint against the respondent third-party defendants. The threshold question is whether under the 'long arm statute,' R.C.W. 4.28.185, respondents are properly before the Superior Court of Snohomish County for the trial of this lawsuit. We retained jurisdiction of this appeal to review the dismissal of the lawsuit by the trial court, which requires resolution of the indicated threshold question.

As will become apparent, the facts of this case are complex and the parties numerous. Apparently, in 1912, Otto K. and William Werner acquired a parcel of property in Snohomish County. In 1956, predeceased by his wife Susanna Werner, Otto K. Werner died. William Werner conveyed his interest in the parcel to Christine Werner, his wife. The public records prior to the transactions under scrutiny here show ownership of the parcel in Christine and Otto K. Werner.

In Los Angeles County, on December 15, 1969, a Carole Albin signed the signature of Christine Werner on a quit claim deed purportedly from Christine Werner to an Ottie C. Werner, and also signed a 1 percent real estate tax affidavit. The acknowledgement of the quit claim deed was executed by respondent Johnson, a California notary, insured by respondent surety Northwestern National Casualty Company.

At some time prior to December 8, 1969, Conner, a real estate salesman in Snohomish County Washington, received a call from a man who identified himself as Ottie C. Werner and who requested that Conner secure a buyer for the subject parcel. Conner advised appellant Quarnstrom of the offer to sell, and Quarnstrom made an offer to purchase the property for $45,000. On December 23, 1969, Pacific Northwest Escrow received the earnest money agreement and the December 15 quit claim deed from 'Christine Werner' with the accompanying tax affidavit. On December 29, 1969, Everett Abstract and Title Company issued a preliminary title commitment for title insurance which noted as an exception a possible cloud in the title relating to the interest of Ottie C. Werner. Except for the purported interest of Ottie C. Werner, the title to the parcel was reported to be vested in Otto K. Werner, presumptively subject to the community interest of Susanna, his wife.

On January 8, 1970, in Pomona, California, Carole and Alan Albin appeared before respondent notary public Pomeroy, employed by respondent Bromley & Kinney Insurance Co., and insured by respondent surety American States Insurance Company, and signed the signatures of Susanna Werner and Otto K. Werner to a quit claim deed to Ottie C. Werner. A tax affidavit was also executed and notarized.

A statutory warranty deed from Ottie C. Werner to Quarnstrom and tax affidavit was acknowledged by respondent Peterman, employed by respondent H. H. Fetterling and insured by respondent surety Northwestern National Insurance Company, in Los Angeles County on January 8, 1970.

Subsequently, the several deeds were recorded, the $45,000 consideration was paid to the person purporting to be Ottie C. Werner (presumably Alan Albin), and from this Quarnstrom apparently thought himself the owner of the parcel which he sold to Matsuoka for $65,000. Thus endeth the factual scenario, or fiasco, depending upon one's point of view.

The appellant 'purchasers' were understandably dismayed when in September of 1970 Antonija Werner and Otto K Werner, Jr., the heirs of Otto K. and Susanna Werner, filed suit to quiet title in the subject parcel. On April 26, 1971, summary judgment was entered quieting title to the parcel in the heirs of Otto K. and Susanna Werner.

With leave of court on April 26, 1971, Quarnstrom filed a third-party complaint against Johnson, Pomeroy, and Peterman, the California notaries public; Bromley & Kinney Insurance Company, H. H. Fetterling Co., employers of the notaries; and Northwestern National Casualty Co., American States Insurance Co., and Northwestern National Insurance Co., sureties of the notaries; and others. The Quarnstrom group asked for indemnity over and against the third-party defendants if the plaintiffs were successful in quieting title to the subject property. Pursuant to RCW 4.28.180, service of process was made on the notaries and their employers in California. The sureties of the notaries all do business within this state and, thus, were served in Washington.

Subsequently, Bromley & Kinney Insurance Co., the employer of Pomeroy, asserted that the title insurer of the parcel, appellant Transamerica Title Insurance Company, was liable for indemnification for any loss incurred by them. All respondents at trial and on appeal assert a lack of jurisdiction in the Washington courts over this matter.

In March 1973, a motion to dismiss third-party defendants for want of jurisdiction was granted. Third-party plaintiffs Quarnstrom and third-party defendant Transamerica Title Insurance Company join in appealing the order of the trial court granting the motion to dismiss.

Appellants assert that the Washington courts may exercise jurisdiction over the respondents pursuant to RCW 4.28.185(1), which provides in pertinent part:

4.28.185 Personal service out of state Acts submitting person to jurisdiction of courts--Saving. (1) Any person, whether or not a citizen or resident of this state, who in person or through an agent does any of the acts in this section enumerated, thereby submits said person, 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 said acts:

(a) The transaction of any business within this state;

(b) The commission of a tortious act within this state;

Respondents contend they are beyond the jurisdiction of Washington courts as they have not had the constitutionally required 'minimum contacts' with this state prerequisite to the exercise of jurisdiction under RCW 4.28.185. See International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). The respondent notaries, from whom their employers and sureties derive their potential liability, assert that they have not had the minimum contacts with this forum as they have never: (1) solicited business; (2) had representatives; nor (3) had any business contacts within the State of Washington.

This appeal squarely presents this court with the problem of defining the limits of in personam jurisdiction over the tortious acts of non-resident persons. At the outset, we address the issue of forum jurisdiction which, in our opinion, is solely a question of this state's Power to adjudicate. Thus, in determining whether this forum may exercise its jurisdiction over respondents, we must narrow our focus to the limited issue of adjudicative power. Hence, for the purposes of preliminary analyses, we disregard considerations of choice of laws and forum convenience.

Long-arm jurisdiction in this state was intended to be operative to the full extent allowed by due process except where limited by the terms of the statute, RCW 4.28.185. See Deutsch v. West Coast Mach. Co., 80 Wash.2d 707, 497 P.2d 1311 (1972); Oliver v. American Motors Corp., 70 Wash.2d 875, 425 P.2d 647 (1967); Tyee Constr. Co. v. Dulien Steel Prods., Inc., 62 Wash.2d 106, 381 P.2d 245 (1963). As conditions precedent to the exercise of in personam jurisdiction over non-resident defendants pursuant to RCW 4.28.185(1)(a) & (b), we have promulgated the following factors (1) The nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in the forum state; (2) the cause of action must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.

(footnotes omitted). Tyee Constr. Co. v. Dulien Steel Prods., Inc., Supra, at 115--116, 381 P.2d at 251. These factors are, in part, a distillation of the due process standards announced in International Shoe Co. v. Washington, Supra, and refined in Hanson v. Denckla, Supra; Travelers Health Ass'n v. Virginia, 339 U.S. 643, 70 S.Ct. 927, 94 L.Ed. 1154 (1950); Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952); McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). Cf. Orland & Fischnaller, Jurisdiction Salad: Washington Style, 9 Gonzaga L.Rev. 1 (1973). The third factor relates both to standards and limitations of due process, or the power to adjudicate, and also, to the convenience of the forum. The latter consideration of forum appropriateness as a part of jurisdictional reach, no doubt, stems from this court's rejection of the doctrine of forum non conveniens in Lansverk v. Studebaker-Packard Corp., 54 Wash.2d 124, 338 P.2d 747 (1959). The above criteria have served as functional guideposts anterior to the exercise of adjudicatory power. They are not necessarily the constitutional limits of the...