Breen v. Jarvis

761 S.W.2d 638, 1988 Mo. App. LEXIS 1357, 1988 WL 99404
CourtMissouri Court of Appeals
DecidedSeptember 27, 1988
DocketNo. 53860
StatusPublished
Cited by1 cases

This text of 761 S.W.2d 638 (Breen v. Jarvis) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Breen v. Jarvis, 761 S.W.2d 638, 1988 Mo. App. LEXIS 1357, 1988 WL 99404 (Mo. Ct. App. 1988).

Opinion

CARL R. GAERTNER, Judge.

The Circuit Court of St. Louis County dismissed appellant’s suit against a Georgia sheriff and his deputy for false return of process because the court lacked long-arm jurisdiction under § 506.500. We hold the defendants lacked minimum contacts in Missouri to satisfy Due Process under the Fourteenth Amendment and affirm.

Appellant, Adrienne Wolff Breen, filed a petition for dissolution of marriage in the Circuit Court of St. Louis County. The court sent the summons and a copy of the petition to the sheriff of DeKalb County, Georgia to serve on appellant’s husband who lived in Chamblin, Georgia. The return, signed by the deputy sheriff, showed service:

by delivering on the 4 day of April 1984 a copy of the summons and a copy of the petition to the within-named respondent Nathaniel Breen [appellant’s husband] by leaving on the 4 day of April 1984 for the within-named respondent a copy of the summons and a copy of the petition at the respective dwelling place or usual abode of said respondent with some person of his/her family over the age of fifteen years.

In fact, the deputy never served appellant’s husband. The deputy later admitted he served the dissolution petition and summons upon the brother of appellant’s husband.

The court granted appellant a default judgment in her dissolution action. Her husband moved to set aside the judgment claiming the court lacked personal jurisdiction. The court agreed and set aside its judgment.

[640]*640Appellant sued the sheriff and the deputy pursuant to Missouri’s “long-arm” statute, § 506.500 RSMo.1986 and Rule 54.06, seeking damages for false return of process. Defendants moved to dismiss and the court sustained their motions because “the acts complained of ... are alleged breech[es] of duty of a public officer and not tortious acts as contemplated by § 506.500_” The court dismissed a cause of action against Travelers Ins. Co., a surety, because it owed no duty to appellant.

Missouri courts cannot invoke personal jurisdiction over a defendant domiciled in a foreign state unless the defendant acts within Missouri’s long-arm statute, § 506.500 and has minimum contacts within the State to satisfy due process. State ex rel. Wichita Falls Gen. Hosp. v. Adolf, 728 S.W.2d 604, 606 (Mo.App.1987). Since the defendants lacked minimum contacts, we do not need to address whether their acts were tortious acts within Missouri’s long-arm statute.

Due process requires minimum contacts; simply random, fortuitous, or attenuated contacts with the forum state cannot create jurisdiction. Burger King v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985). As stated in State ex rel. Ranni Assoc., Inc. v. Hartenbach, 742 S.W.2d 134, 137-38 (Mo.banc 1987).

“The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum state. The application of the rule will vary with the quality and nature of the defendant’s activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws” Hanson v. Denckla 357 U.S. 235, 253 [78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283], (1958). In judging minimum contacts, a court properly focuses on the relationship among the defendant, the forum and the litigation. Calder v. Jones, 465 U.S. 783, 788 [104 S.Ct. 1482, 1486, 79 L.Ed.2d 804], (1984).

In other words, the contact should be something more than the nonresident’s response to an unsolicited request for a service or information, wherein the nonresident receives only a de minimus benefit. State ex rel. Sperandio v. Clymer, 581 S.W.2d 377 (Mo.banc 1979); State ex rel. Bank of Gering v. Schoenlaub, 540 S.W.2d 31 (Mo.banc 1976).

This court has recently examined the minimum contacts requirement of due process in two cases. In State ex rel. Wichita Falls Gen. Hosp. v. Adolf, supra, we found insufficient contacts with Missouri on the part of a Texas hospital which made known to Missouri physicians the availability of a heart for transplant. The hospital permitted Missouri physicians to take a heart from Texas to Missouri for a Missouri resident. Despite the alleged negligence of the Texas hospital in advising the heart to be blood type A when in fact it was type B, and despite the payment to the Texas hospital of at least a part of its expenses, we concluded the hospital’s contacts with Missouri were random, fortuitous, and the result of the unilateral activity of the Missouri physicians. 728 S.W.2d at 609. In reaching this conclusion we noted that determination of minimum contacts is subject to less stringent tests in cases involving a product placed into the stream of commerce than in cases based upon a noncommercial rendition of services. Id. at 608, citing Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987).

In State ex rel. P.A.C.C.S. v. Ryan, 728 S.W.2d 598 (Mo.App.1987) we held that physicians who rendered medical treatment to a Missouri resident in Kansas for a fee, and forwarded medical records to the patient’s Missouri doctors for continued treatment, thereby “causing an effect” in Missouri, had not conducted activities in Missouri and did not have such minimum contacts with this state to make it “reasonable” and “fair” to subject them to the jurisdiction of Missouri courts.

Appellant argues that a sufficient basis for asserting jurisdiction over a nonresident is established if the extra-territorial [641]*641conduct of the defendant produces actionable consequences in the forum state. This contention would seem to be predicated upon language found in some opinions in cases involving interstate commercial activities. In rejecting a similar argument in P.A.C.C.S, we took note of the two opinions of the Missouri Supreme Court entitled State ex rel. Sperandio v. Clymer, 568 S.W.2d 935 (Mo.banc 1978), vacated sub nom. Pemberton v. Sperandio, 439 U.S. 812, 99 S.Ct. 69, 58 L.Ed.2d 103 (1978) and State ex rel. Sperandio v. Clymer, 581 S.W.2d 377 (Mo.banc 1979). These decisions involve an action filed in Missouri against a Utah physician who had responded by letter to a Missouri doctor’s request for advice regarding a contemplated surgical procedure to be performed in Missouri.

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Bluebook (online)
761 S.W.2d 638, 1988 Mo. App. LEXIS 1357, 1988 WL 99404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/breen-v-jarvis-moctapp-1988.