Wineteer v. Vietnam Helicopter Pilots Ass'n

• Decision Date: 02 December 2003
• Docket Number: No. WD 62266.,WD 62266.
• Citation: 121 S.W.3d 277
• Parties: Gary WINETEER, Appellant, v. VIETNAM HELICOPTER PILOTS ASSOCIATION and David Rittman, Respondents.
• Court: Missouri Court of Appeals

121 S.W.3d 277

Gary WINETEER, Appellant, v. VIETNAM HELICOPTER PILOTS ASSOCIATION and David Rittman, Respondents.

No. WD 62266.

Missouri Court of Appeals, Western District.

December 2, 2003.

L. Thomas Elliston, Webb City, MO, for appellant.

John R. Shank, Jr., Kansas City, MO, for respondent.

Before JAMES M. SMART, JR., P.J., ROBERT G. ULRICH and LISA WHITE HARDWICK, JJ.

ROBERT ULRICH, Judge.

Gary Wineteer ("Mr. Wineteer") appeals the trial court's dismissal with prejudice of his suit against the Vietnam Helicopter Pilots Association ("VHPA") and David Rittman ("Mr. Rittman"), past president of VHPA.¹ Mr. Wineteer sought injunctive relief to compel VHPA and Mr. Rittman to comply with Kansas law by allowing proxy voting at the annual VHPA meeting. The trial court's dismissal is reversed.

Factual and Procedural History

VHPA is a national not-for profit Kansas corporation that has members in lieu of stockholders. An Executive Council comprised of seven members constitutes the corporate legal authority of VHPA.² Mr. Rittman was the president of the national organization from July 2001 to July 2002. He was then a resident of Missouri and conducted business on behalf of VHPA from his home and business office which were also located in Missouri. In 1997, VHPA contacted Mr. Wineteer and other Missouri residents to form a local chapter of VHPA. The Mid-America Chapter ("Chapter") of VHPA was incorporated on September 1, 1997. Mr. Wineteer was president of the Chapter at the time it was formed. VHPA provided the Chapter with $500 cash and a list of Missouri residents as prospective members to be recruited. It also provided the Chapter with a banner containing VHPA's logo and name. VHPA possesses a Missouri tax identification number and enjoys sales/use tax-exempt status in Missouri.

Mr. Wineteer filed his petition for injunction on June 10, 2002, seeking the court's order requiring VHPA and Mr. Rittman to comply with Kansas law regarding proxy voting and repeal or amendment of bylaws.³ A copy of the summons and petition for injunction were personally served on Mr. Rittman and on VHPA by serving Mr. Rittman, individually, as the corporation's president, on June 13, 2002, in Missouri. VHPA and Mr. Rittman filed a motion to dismiss on November 7, 2002, alleging that the trial court lacked personal jurisdiction over VHPA and stating that Mr. Wineteer's requested relief against Mr. Rittman was discretionary and, even if granted, would not benefit Mr. Wineteer.

A hearing on the motion to dismiss was held on November 26, 2002. Mr. Wineteer submitted an affidavit outlining the contacts that VHPA had with the State of Missouri. VHPA submitted the affidavit of Joe Bilitzke, acting president of VHPA, stating the reasons why the trial court lacked personal jurisdiction over VHPA, namely denying that VHPA had any of the contacts enumerated under Missouri's long-arm statute. After hearing arguments of both parties and reviewing the affidavits, the trial court sustained the motion to dismiss with prejudice. This appeal followed.

Points on Appeal

Mr. Wineteer asserts two points on appeal. In his first point, Mr. Wineteer claims that the trial court erred in sustaining the motion to dismiss with prejudice on the basis of lack of personal jurisdiction because: (a) VHPA was served process in Missouri, and he did not need to satisfy the jurisdictional requirements of Missouri's long-arm statute, section 506.500, RSMo 2000; (b) the trial court had personal jurisdiction over both Mr. Rittman and VHPA because both were personally served in Missouri; and (c) due process as to both Mr. Rittman and VHPA was satisfied in that VHPA's president was served in Missouri in his individual and corporate capacities and VHPA had significant contacts with Missouri so that maintenance of the suit did not offend traditional notions of fair play and substantial justice. For his second point, Mr. Wineteer asserts that the trial court erred in sustaining the motion to dismiss with prejudice on the basis that "the relief requested was discretionary and, even if granted, would not benefit Mr. Wineteer" because this required the trial court to consider matters outside the pleadings and converted the motion to dismiss to a motion for summary judgment.

Standard of Review

The plaintiff has the burden of proving the existence of personal jurisdiction over the defendant. Sloan Roberts v. Morse Chevrolet, Inc., 44 S.W.3d 402, 406 (Mo.App. W.D.2001) (citing Schilling v. Human Support Servs., 978 S.W.2d 368, 370 (Mo.App.1998)). A trial court determines jurisdiction "in the first instance." Johnson Heater Corp. v. Deppe, 86 S.W.3d 114, 119 (Mo.App. E.D.2002) (citing Stavrides v. Zerjav, 848 S.W.2d 523, 527 (Mo. App. E.D.1993)). "When the motion is based on facts not appearing on the record, as is the case here, the `trial court may hear it on affidavits presented by the parties, or the court may direct that the matter be heard wholly or partly on oral testimony or deposition.'" Auld v. Adler, 96 S.W.3d 920, 923 (Mo.App. W.D.2003) (citing Lindley v. Midwest Pulmonary Consultants, P.C., 55 S.W.3d 906, 909 (Mo. App. W.D.2001)) (quoting Conway v. Royalite Plastics, Ltd., 12 S.W.3d 314, 318 (Mo. banc 2000)). The trial court is free to believe or disbelieve any statements made within those affidavits and factual determinations based upon those affidavits are within the trial court's discretion. Id.

Whether sufficient evidence was presented to establish a prima facie case of personal jurisdiction is a question of law, which is independently reviewed on appeal. Sloan Roberts, 44 S.W.3d at 406 (quoting Stavrides v. Zerjav, 848 S.W.2d 523, 527 (Mo.App.1993)). In reviewing the grant of a motion to dismiss a petition, all facts alleged in the petition are deemed true and the plaintiff is given the benefit of every reasonable inference. Burnside v. Gilliam Cemetery Ass'n of Gilliam, 96 S.W.3d 155, 156 (Mo.App. W.D.2003) (quoting In re Swearingen, 42 S.W.3d 741, 745-46 (Mo.App. W.D.2001)). The credibility or persuasiveness of the facts alleged is not re-examined. In re Swearingen, 42 S.W.3d at 746 (citing Nazeri v. Mo. Valley Coll., 860 S.W.2d 303, 306 (Mo. banc 1993)). Rather, an appellate court "review[s] the petition to determine whether it invokes principles of substantive law and whether the acts alleged, if proven, would entitle the plaintiff to relief." Id. (citing Jordan v. Willens, 937 S.W.2d 291, 293 (Mo.App. W.D.1996)).

This standard of review does not convert the motion to dismiss into a motion for summary judgment as "the trial court's inquiry is limited to an examination of the petition on its face and the supporting affidavits to determine the limited question of personal jurisdiction." Capitol Indem. Corp. v. Citizens Nat'l Bank of Fort Scott, N.A., 8 S.W.3d 893, 898 (Mo.App. W.D. 2000) (quoting Chromalloy Am. Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 3 n. 3 (Mo. banc 1997)). A motion to dismiss is not converted to a summary judgment motion when the merits of the underlying action are not considered. Id. To treat a motion to dismiss as one for summary judgment, the trial court must first notify the parties of its intent, and it must provide all parties a reasonable opportunity to present all materials pertinent to a motion for summary judgment. Shouse v. RFB Constr. Co., 10 S.W.3d 189, 192 (Mo.App. W.D.1999) (citing Crede v. City of Oak Grove, 979 S.W.2d 529, 532 (Mo.App. 1998)).

In this case, the trial court granted VHPA's motion to dismiss after considering the pleadings and affidavits submitted by the parties. The trial court's judgment does not state the basis for its decision. The reviewing court presumes the dismissal was based upon one of the grounds presented when the trial court fails to specifically state the grounds on which it based its order of dismissal. Id. at 193. The trial court's ruling will be affirmed on appeal if any of the grounds asserted by the movant can sustain the trial court's action. Id. (citing Wenthe v. Willis Corroon Corp., 932 S.W.2d 791, 793-94 (Mo.App.1996)).

Personal Jurisdiction

Mr. Wineteer first argues that the trial court erred in dismissing his petition for lack of personal jurisdiction over VHPA with prejudice because VHPA was served in Missouri and was subject to general jurisdiction in Missouri. General jurisdiction exists when a "foreign corporation [is] present and conducting substantial business in Missouri." State ex rel. K-Mart Corp. v. Holliger, 986 S.W.2d 165, 167 (Mo. banc 1999). To establish general jurisdiction over a foreign corporation, two elements must be satisfied: (a) service of process was obtained on the foreign corporation in the State of Missouri pursuant to section 506.150, RSMo 2000, and Rule 54.13(b)(3); and (b) the foreign corporation was doing substantial business in the State of Missouri. Collar v. Peninsular Gas Co., 295 S.W.2d 88, 90 (Mo.1956) (citations omitted). Because a corporation is a fictional entity, determining its "presence" can be conceptually difficult. K-Mart, 986 S.W.2d at 167. The exercise of extraterritorial jurisdiction is permitted when a foreign corporation has certain "minimum contacts" with the forum state. Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

"It is not a prerequisite for valid service upon a foreign corporation that it be licensed to do business in Missouri, but it is sufficient if it is in fact doing business in this state and is subject to a type of service on corporations as provided by Missouri statutes." Ward v. Cook United Inc., 521 S.W.2d 461, 464 (Mo.App.1975) (citations omitted). Section 506.150.1(3), RSMo 2000, governs personal service within the state on a foreign corporation and provides:

The summons and petition shall be served together. Service shall be made as follows:

(3) Upon a domestic or foreign corporation or upon a partnership, or other unincorporated association, when by law it may...