Opinion
No. 70415.
OPINION FILED: May 6, 1997.
Appeal from the Circuit Court of St. Louis County, Hon. Kenneth M. Weinstock.
Chromalloy American Corporation and E.F. Company (collectively Chromalloy) appeal from the circuit court's dismissal of their petition against Ohio based, Elyria Foundry Company, (Elyria) for lack of personal jurisdiction. Chromalloy contends on appeal that the trial court erred in dismissing the petition because Elyria transacted business in Missouri and thereby became subject to the court's jurisdiction under the Missouri Long Arm Statute. § 506.500.1(1) RSMo 1994. We would reverse. Pursuant to Rule 83.02, we transfer to the supreme court because the preliminary issue of appellate jurisdiction is one of general interest.
All further statutory references are to RSMo 1994.
Chromalloy's petition alleged that Chromalloy and Elyria entered into a contract which, among other things, provided that Elyria would purchase an Ohio foundry, and its relevant assets, from Chromalloy. It further claims that Elyria breached this contract by failing to make payments for this foundry.
Elyria responded by filing a motion to dismiss for lack of personal jurisdiction, or in the alternative, forum non conveniens. Attached to this motion was the affidavit of Gregg L. Foster (Foster), the president and sole shareholder of Elyria. The affidavit states that in early 1983 Foster went to St. Louis to offer to purchase the foundry. This offer was promptly rejected without negotiation. Chromalloy reinitiated negotiations with Elyria, but, this time in Ohio. Foster again went to St. Louis, but only to review the documents yielded by the Ohio negotiations. The affidavit also claims that the contract was later executed in Ohio.
Consideration of affidavits supporting a motion to dismiss for lack of personal jurisdiction under § 506.500 is proper and does not serve to convert the motion to dismiss into a motion for summary judgment. We note however that 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. The trial court does not consider the merits of the underlying action. Dillaplain v. Lite Industries, Inc., 788 S.W.2d 530, 532 (Mo.App.W.D. 1990); Empiregas, Inc., of Noel v. Hoover Ball Bearing Co., 507 S.W.2d 657,660 (Mo.banc 1974).
Chromalloy filed a memorandum in opposition to this motion along with the affidavit of James A. Dowling III (Dowling), the assistant general counsel to Chromalloy who negotiated the contract with Elyria. According to this affidavit, the initial meeting between Foster and Chromalloy resulted in agreement on the basic terms of the contract. Long distance communications between Chromalloy in Missouri and Elyria in Ohio were maintained as the contracts were being drafted. Foster returned to St. Louis to discuss, review and make final changes in the contract.
Elyria responded with a "Reply in Support of Its Motion to Dismiss" and included an affidavit by Philip Dawson (Dawson), the negotiating attorney for Elyria. This affidavit supports Foster's, as it states that all negotiations relating to the sale of the foundry were conducted in Ohio. Also attached was an additional affidavit created by Foster, specifically denying the allegations made in Dowling's affidavit.
The trial court sustained Elyria's motion to dismiss without comment. Chromalloy filed a motion to reconsider. The court overruled this motion, indicating that it did so because of a lack of personal jurisdiction.
In its only point on appeal, Chromalloy contends that the trial court erred in dismissing its petition because pursuant to Missouri's Long Arm Statute, § 506.500.1(1), the circuit court had jurisdiction over Elyria, as it transacted business in Missouri.
As a preliminary matter, we note that the appropriate remedy when a trial court dismisses an action for lack of personal jurisdiction is an extraordinary writ. Quelle Quiche, Ltd. v. Roland Glass Foods, Inc., 926 S.W.2d 211, 213 (Mo.App.E.D. 1996). However, both parties request that pursuant to Quelle Quiche, we consider the appeal on its merits. A reviewing court has a duty to determine its jurisdiction sua sponte. Trust by Sherman v. Wilson, 928 S.W.2d 897, 898 (Mo.App.E.D. 1996). Here, the trial court dismissed Chromalloy's petition without indicating whether the dismissal was with or without prejudice. Under Rule 67.03, a dismissal for lack of personal jurisdiction is without prejudice unless designated otherwise. Quelle Quiche, 926 S.W.2d at 213. The general rule is that a dismissal without prejudice is not a final judgment and therefore unappealable. State ex rel. State of Ill. v. Jones, 920 S.W.2d 116, 117 (Mo.App.E.D. 1996).
There are exceptions to this rule. A dismissal without prejudice may operate to preclude the party from bringing another action for the same cause, and may be res judicata of what the judgment actually decided. Mahoney v. Doerhoff Surgical Services, Inc., 807 S.W.2d 503, 506 (Mo.banc 1991). An appeal from such a dismissal can be taken where the dismissal has the practical effect of terminating the litigation in the form cast or in the plaintiff's chosen forum. City of Chesterfield v. Deshetler Homes, 938 S.W.2d 671, 673 (Mo.App.E.D. 1997).
We find that the trial court's dismissal in the instant case had such a practical effect. Chromalloy contended that the circuit court had jurisdiction under Missouri's Long Arm Statute. § 506.500, which states in relevant part:
1. Any person or firm, whether or not a citizen or resident of this state, or any corporation, who in person or through an agent does any of the acts enumerated in this section, thereby submits such person, firm, or corporation, 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 such acts:
(1) The transaction of any business within this state;
(2) The making of any contract within this state.
Chromalloy's pleadings alleged that negotiations for the purchase of the foundry occurred in Missouri and that these negotiations amounted to a transaction of business for purposes of § 506.500.1(1). By dismissing the petition on the basis of personal jurisdiction, the trial court implicitly rejected those factual allegations which formed the basis of Chromalloy's claim of jurisdiction. This effectively precludes Chromalloy from refiling its claim in Missouri.
Stated another away, a dismissal without prejudice which a plaintiff may cure by filing another suit in the same court is not a final judgment from which an appeal may be taken. Turnbow v. Southern Ry. Co., 768 S.W.2d 556, 558 (Mo.banc 1989) (emphasis added). Chromalloy has no such option here. To re-offer the same rejected claims which supported Chromalloy's contention that business was transacted in Missouri as support for a new contention that the contract was formed in Missouri would be an exercise in futility.
Moreover, the trial court's dismissal had the effect of terminating Chromalloy's claim in the form in which it was cast. See Chesterfield, 938 S.W.2d at 673. Rather than force Chromalloy to recast its cause of action in a fruitless attempt to establish jurisdiction, in the interests of judicial economy, we move on to consider the merits of the claim on appeal.
Our standard of review of dismissals for lack of jurisdiction was concisely stated in Quelle Quiche v. Roland Glass Foods:
When a motion to dismiss for lack of personal jurisdiction is made on a matter not appearing on the record, 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. When affidavits are presented, the trial court may believe or disbelieve any statements made within those affidavits. It is within the sole discretion of the trial court to make such factual determinations. We must affirm the trial court's ruling regarding jurisdiction if the affidavits submitted by the defendants in support of their motions to dismiss show they did not commit any act sufficient to invoke the jurisdictional provisions of the Missouri Long Arm Statute. 926 S.W.2d 211, 213. (citations omitted)
In the instant case, Elyria's affidavits show that Foster traveled to St. Louis to offer to purchase the foundry, but that this offer was immediately rejected. They also show that at Chromalloy's behest, negotiations were subsequently reinitiated in Ohio. After these negotiations had concluded, Foster made one additional trip to St. Louis for a review of the resulting contracts. He returned with these documents to Ohio for additional review with the assistance of counsel. The contracts were then executed in Ohio. Based upon the evidence in these affidavits, we conclude that the trial court erred in concluding it had no jurisdiction over Elyria.
In order for a non-resident defendant to subject itself to the long-arm jurisdiction of this state, two elements must be present. Dillaplain v. Lite Industries, Inc., 788 S.W.2d 530, 533 (Mo.App.W.D. 1990). First, the suit must arise out of the activities enumerated in the long arm statute, and second, the defendant must have sufficient minimum contacts with Missouri to satisfy due process requirements. Id. We find that the visits by Foster to Missouri meet these requirements.
Chromalloy alleges, and we agree, that trips undertaken by Foster constituted the transaction of business within the state of Missouri. We must construe broadly the "transaction of business" element in the long arm statute so that even a single transaction may confer jurisdiction, if that is the transaction which gives rise to the suit. Laser Vision Centers, Inc. v. Laser Vision Centers Intern., SpA, 930 S.W.2d 29, 32 (Mo.App.E.D. 1996). Here, Elyria's president and sole shareholder traveled to Missouri intending to contact a Missouri corporation and propose the purchase of one of its assets. A single business proposal to a Missouri corporation has been found sufficient to constitute the transaction of business. See Id. The fact that the offer was initially rejected does not make it less significant. Negotiations often begin with the rejection of a preliminary offer.
Moreover, Foster's second trip to Missouri to review the documents produced by prior negotiations also amounted to the transaction of business. The trip was a part of the ongoing process which resulted in the sale of the foundry. Elyria has cited Watlow Electric Mfg. Co. v. Sam Dick Industries, Inc., for the proposition that any alleged activity, relied upon to establish jurisdiction as transacting business, must be an "essential factor" in the completion of the contract. 734 S.W.2d 295 (Mo.App.E.D. 1987). We find no such pronouncement of law in Watlow.
There, a contract between a Missouri and a Washington corporation for the sale of electric vaporizers had been completed. The Washington company's chief engineer came to Missouri to review the design. The foreign corporation argued that because the contract had been completed, the engineer's visit could not be considered the transaction of business. This court disagreed, noting that only a prototype vaporizer had been ordered and that further review of the design was necessary to meet the purchaser's requirements. As such, we noted that the engineer's trip was an "essential factor" in the completion of the contract and must be viewed as the transaction of business.Id. at 298. This does not proclaim a new requirement for what constitutes the transaction of business. Rather, it explains why the court viewed post-contract activity as a part of the deal.
In contrast, Elyria admits that Foster's second trip took place before any contract was signed. Foster's review of the contract documents was a part of the ongoing process which resulted in the foundry's sale. As such, we find Foster's second trip to be transacting business under § 506.500.
Finally, we consider whether Elyria's activities in Missouri satisfy the principles of due process. A defendant must have sufficient minimum contacts with the forum state such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice." Dillaplain, 788 S.W.2d at 534, quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102 (1945). This "minimum contacts" test is not susceptible of mechanical application; rather, "the facts of each case must be weighed to determine whether the requisite 'affiliating circumstances' are present."Id. quoting Kulko v. Superior Court of California, Etc., 436 U.S. 84, 92, 98 S.Ct. 1690, 1697, 56 L.Ed.2d 132, 141 (1978). A defendant's contacts with the forum state must be purposeful and such that defendant should reasonably anticipate being haled into court in the forum state. Id.
We find sufficient minimum contacts between Elyria and this state. Foster's trips to Missouri were purposeful visits, made with the intention of initiating or furthering the purchase of the foundry from a Missouri corporation. Finding no due process violation and the transaction of business in Missouri, we conclude that the trial court erred in dismissing Chromalloy's claim for lack of personal jurisdiction. We would therefore reverse and remand this cause to the trial court for further proceedings. However, because the initial issue of this court's jurisdiction is one of general interest, we transfer to the supreme court. Rule 83.02.
We make no statement on Elyria's claim of forum non conveniens.
Rhodes Russell, P.J., concurs.
Simon, J., concurs in result only.
OPINION SUMMARY
Chromalloy American Corporation and E.F. Company appeal from the trial court's dismissal of their breach of contract action against Elyria Foundry Company for lack of personal jurisdiction.
TRANSFERRED TO THE MISSOURI SUPREME COURT.
Division Four holds:
1) Although the trial court's dismissal of the action was without prejudice, it had the preclusive effect of a final judgment as any attempt on Chromalloy's part to refile in Missouri would be futile. Accordingly, we would hold that consideration of Chromalloy's appeal on its merits is proper. Since this issue is one of general interest, we transfer to the Missouri Supreme Court. 2) The trial court erred in holding it lacked personal jurisdiction over Elyria. Elyria's own affidavits establish that it transacted business in the state of Missouri for purposes of the Long Arm Statute § 506.500, RSMo 1994. They also establish that Elyria had sufficient minimum contacts with this state such that the exercise of jurisdiction over it would not offend traditional notions of due process.
Concurring Opinion
I concur in the result only by separate opinion since I would dismiss the appeal for lack of final judgment as required by § 512.020 RSMo 1994. The trial court sustained Elyria's Motion To Dismiss For Lack of Personal Jurisdiction, Or In The Alternative, For Forum Non Conveniens. The dismissal was without prejudice in accordance with Rule 67.03.
Since the trial court's ruling did not reach the merits of Chromalloy's claim, it did not dispose of the issue as was done in Dillaplain v. Lite Industries, Inc. 788 S.W.2d 530 (Mo.App. 1990). In Dillaplain, plaintiffs sought damages for personal injuries arising out of their exposure to asbestos contained in fire-protective clothing manufactured by defendant, an out of state corporation. Defendant filed a motion to quash service and to dismiss for lack of personal jurisdiction, which the trial court granted. Plaintiffs appealed. The court held that in ruling on defendant's motions, ordering service of process quashed, and dismissing the claims for lack of personal jurisdiction, the trial court essentially decided the ultimate question of long arm jurisdiction by implicitly deciding whether a tort had been committed in Missouri. Id. At 533. Thus, the trial court reached the merits, allowing plaintiff to appeal from the dismissal. In reaching this conclusion, the Dillaplain court cited Empiregas, Inc. Of Noel v. Hoover Ball Bearing Co., 507 S.W.2d 657, 660 (Mo. 1974), in which our Supreme Court had reached a similar conclusion. See also Hagen v Rapid American Corp., 791 S.W.2d 452, 455-56 (Mo.App. 1990).
Since Chromalloy may not be able to refile its action in Missouri against Elyria, the majority finds that the order sustaining the motion is a final judgment. Arguably if Chromalloy cannot refile in this jurisdiction it is a disposition on the merits. However, that would transform every dismissal for lack of personal jurisdiction of a non-resident defendant into a final judgment. The importance of this issue, which forms the basis of appellate jurisdiction, should be reviewed by our Supreme Court. Rule 83.02.