White v. Goldthwaite

• Decision Date: 08 November 1969
• Docket Number: No. 45414,45414
• Citation: 460 P.2d 578,204 Kan. 83
• Parties: J. D. WHITE, Appellee, v. Amaret C. GOLDTHWAITE, Appellant.
• Court: Kansas Supreme Court

Page 578

460 P.2d 578

204 Kan. 83

J. D. WHITE, Appellee, v. Amaret C. GOLDTHWAITE, Appellant.

No. 45414.

Supreme Court of Kansas.

Nov. 8, 1969.

Rehearing Denied Dec. 5, 1969.

Syllabus by the Court

1. The provisions of K.S.A. 60-308(b) declaring that a nonresident submits his person to the jurisdiction of the courts of this state if he does any of the acts enumerated therein reflect legislative intention to exert jurisdiction over nonresident defendants to the extent permitted by the due process clause of the fourteenth amendment.

2. In order to subject a defendant to a judgment in personam if he be not present within the territory of the forum state, he must have the minimum contacts enumerated in the statute, and whether due process is satisfied depends upon the quality and nature of the activities of the defendant, which must be determined on a case by case basis. (Following Woodring v. Hall, 200 Kan. 597, 438 P.2d 135.)

3. Three basic factors must coincide if jurisdiction is to be entertained over a nonresident on the basis of transaction of business within the state. These are (1) the nonresident must purposefully do some act or consummate some transaction in the forum state; (2) the claim for relief 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.

4. The party invoking the jurisdiction of a particular forum has the burden of proving existence of that jurisdiction.

5. In an action brought in Kansas against an Oklahoma resident for the recovery of money allegedly due under an oral agreement between the parties, the record is examined and it is held, the defendant has not submitted to the jurisdiction of the courts of this state within the requirements of K.S.A. 60-308(b)(1).

William Tinker, Wichita, argued the cause, and Arthur W. Skaer, Hugh P. Quinn, Alvin D. Herrington, Richard T. Foster, Lee H. Woodard, William A. Hensley, William Tinker, Jr., and Clark R. Mandigo, II, Wichita, were with him on the brief for appellant.

Robert Martin, Wichita, argued the cause, and William Porter, K. W. Pringle, Jr., W. F. Schell, Dale Fair, William L. Oliver, Jr., William V. Crank, Thomas, C. Triplett, Wayne W. Wallace, John P. Woolf, and Douglas K. Dusenbury, Wichita, were with him on the brief for appellee.

HARMAN, Commissioner.

This is an action for the recovery of money. In a trial to the court plaintiff J. D. White prevailed and defendant Amaret C. Goldthwaite has appealed from the judgment rendered against her.

The principal question upon appeal involves the validity of the service of summons upon defendant under our long-arm statute.

Plaintiff commenced the action by filing his petition in which, so far as pertinent here, he alleged that on or about March 4, 1966, defendant by and through her agent John W. Porter, Jr. agreed to pay to plaintiff the total sum of $26,560 to repay a loan of $1,560 and $25,000 as the purchase price on a stock option on certain shares of the capital stock of International Disposal Corporation, payment of the $26,560 to be made March 10, 1966; that defendant refused to make the payment.

Personal service of summons was had upon defendant in Oklahoma County, Oklahoma. She duly filed her answer in which she denied making the alleged agreement and also denied she had been properly served with summons because she had not submitted to the jurisdiction of the Kansas courts.

Upon issues thus joined, trial was had to the court which made findings of fact and conclusions of law and rendered judgment in personam against defendant for $26,560 as prayed for.

Jurisdiction to render such a judgment is to be sustained, if at all, by reason of K.S.A. 60-308(b)(1), which provides that a nonresident, who in person or through an agent or instrumentality transacts any business within the state, submits himself to the jurisdiction of the Kansas courts.

The evidence upon this issue, viewed in the light most favorable to plaintiff, reveals the following: Plaintiff was a resident of Wichita and was licensed to practice law in Kansas; he also conducted an oil and investment business in Kansas, Oklahoma and elsewhere; he was principally engaged in the oil business in Oklahoma; he maintained a business office and an apartment in Oklahoma City. Defendant resided in Oklahoma City. John W. Porter, Jr., (found by the trial court to be defendant's agent) resided in Oklahoma City; he was an investment broker who counseled with defendant about her investments.

In August, 1965, defendant agreed to purchase from a Mr. Cook an interest in some oil and gas leases in Oklahoma, obligating herself to pay the sum of $160,000. She paid Cook $40,000 and sought to borrow the balance elsewhere. In October, 1965, Porter approached plaintiff in Oklahoma City in behalf of defendant in an effort to borrow $120,000 for her. As a result plaintiff drafted a written agreement which Porter presented to defendant who signed this agreement at her home on November 1, 1965. The agreement provided that plaintiff was to loan, or cause to be loaned, to defendant $120,000, $60,000 to be advanced before November 5, 1965, and the remainder before November 15, 1965. The loan was to be repaid within six months and was to draw eight per cent interest. Additionally, plaintiff was given an option to purchase from defendant 15,000 shares of International Disposal Corporation stock at $5.00 per share. Defendant also signed a promissory note payable to plaintiff and as collateral pledged certain Oklahoma farm land and 75,000 shares of International Disposal Corporation stock owned by her. The agreement also provided that plaintiff was to deliver a check for $1,000 to defendant to be considered as liquidated damages in the event plaintiff was unable to deliver the loan to defendant. This check was attached to the agreement when it was presented to her for signature. Following execution of all the instruments defendant gave them to Porter who in turn delivered them to plaintiff at his Oklahoma City office.

Upon receiving defendant's stock certificates plaintiff brought them to Wichita, then returned 65,000 shares to his Oklahoma City office for safekeeping. He obtained a loan for $60,000 at a Wichita bank by reason of which he delivered $60,000 to Porter at Oklahoma City.

Under a prior business arrangement (which had no connection with the case at bar) plaintiff had an escrow agreement at another Wichita bank to secure performance of a drilling contract in Turkey. As collateral for this agreement he had pledged certain Woods Industries stock certificates which he then owned. Upon receiving defendant's International Disposal Corporation certificates plaintiff substituted as collateral at the second bank 10,000 of those shares for the Woods Industries Stock, withdrawing the latter and using them as collateral for the $60,000 loan obtained at the first bank. Defendant had no knowledge of plaintiff's use of her stock as collateral at the time plaintiff made the substitution.

Plaintiff was unable to secure the second $60,000 which was to be loaned defendant and he informed Porter of this fact about November 15, 1965. After some negotiations over a period of time, during which Porter and defendant each endeavored to secure the second $60,000 elsewhere, the contract was modified; the 65,000 shares of stock were eventually returned to defendant through Porter, and defendant was to raise the needed $60,000 herself; inasmuch as plaintiff had furnished only one-half the needed funds his stock option was reduced one-half, that is, from 15,000 to 7,500 shares. All these negotiations were carried on in Oklahoma with Porter acting on behalf of defendant.

Meanwhile, about the middle of December, 1965, Porter had telephoned plaintiff in Wichita to the effect that defendant was short of cash for the Christmas season; that oil payments in the amount of $1,560 had accumulated on the oil leases but this amount was unavailable to her because she had not been able to complete her purchase; Porter suggested a loan in this amount; plaintiff agreed and directed that the notation on his $1,000 check deposited with defendant be altered from 'pertaining to option agreement' to 'portion of oil payment loan', which was done, and the check was cashed by defendant; plaintiff mailed a cashier's check in the sum of $560.00 to defendant.

It appears that defendant's vendor, Mr. Cook, twice agreed to an extension of time in which she could pay for her lease interest, and meanwhile the relation between plaintiff and defendant apparently remained amicable until a rise in price of International Disposal Corporation stock.

On March 10 plaintiff and Porter conversed in Oklahoma City regarding the purchase by defendant of plaintiff's stock option. Porter told plaintiff defendant would pay him $25,000 for the option. Later plaintiff told Porter by telephone that he would accept the offer and Porter told plaintiff 'he would get me a check'. The two also discussed repayment of the $60,000...