Krug v. Abel

716 S.W.2d 17, 1986 Mo. App. LEXIS 4650
CourtMissouri Court of Appeals
DecidedSeptember 9, 1986
DocketNo. WD 38202
StatusPublished
Cited by3 cases

This text of 716 S.W.2d 17 (Krug v. Abel) 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
Krug v. Abel, 716 S.W.2d 17, 1986 Mo. App. LEXIS 4650 (Mo. Ct. App. 1986).

Opinion

PER CURIAM:

This is an appeal from an order of the Cole County Circuit Court dismissing appellant’s action for lack of personal jurisdiction over the respondent-defendants. Appellant was, at the time the suit was filed, an inmate at the Missouri State Penitentiary. He had been convicted in Arizona but was being held in Missouri under an Interstate Compact. Appellant filed this action pro se, alleging that his sister, Maxine Abel, and her attorney, William G. Rasche, conspired with Missouri State Prison Officials, acting as agents of the Arizona Department of Corrections, to obtain confidential inmate records relating to appellant’s financial status. Appellant further complained that respondents Abel and Rasche used this illegally obtained information to challenge appellant’s indigency status in an action before the federal district court in Wisconsin, with the result that the lawsuit was dismissed with prejudice against appellant.

On appeal, appellant argues that the trial court erred by dismissing the action for lack of jurisdiction, because respondents waived any jurisdictional defects by acknowledging receipt of service and by filing their motions to dismiss. The Arizona Department of Corrections argues that appellant waived his jurisdictional arguments with respect to the State of Arizona by failing to brief them, and requests that the court assess frivolous appeal damages [19]*19against appellant. Respondents Abel and Rasche have not presented briefs.

Appellant filed this action on April 12, 1985, and obtained service on the respondents by certified mail in Wisconsin and Arizona. Respondents each moved to dismiss in May, 1985, alleging, inter alia, that the court lacked personal jurisdiction over them because they had not done any act in the state to form the basis of appellant’s complaint. The trial court sustained the motion on January 27, 1986, “for the reason that this court has no jurisdiction over these defendants.”

Due process dictates that to subject non-resident defendants to a judgment in personam, the defendants have certain “minimum contacts” with the state such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). The trial court’s focus is whether defendant has sufficient contacts with the state “to make it reasonable, in the context of our federal system of government, to require [him] to defend the particular suit which is brought there.” Id. at 317, 66 S.Ct. at 158; Crouch v. Crouch, 641 S.W.2d 86, 89 (Mo. banc 1982) (quoting International Shoe, 326 U.S. at 317, 66 S.Ct. at 158). The defendant’s contacts with the state must be purposeful and such that defendant “should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980).

At the outset of our analysis we should note that appellant’s complaint does not state a cause of action against defendant Arizona, and dismissal of the action against Arizona was proper. Appellant does not challenge the trial court’s finding that it did not have jurisdiction over Arizona; indeed, he argues that he did not intend for the State of Arizona to be a party on appeal. Points not carried forward in the argument portion of the brief are deemed abandoned. State v. Gilmore, 681 S.W.2d 934, 941 (Mo. banc 1984). Appellant’s appeal with respect to dismissal of respondent Arizona is, accordingly, dismissed.

The legislature has enumerated several acts in § 506.500 RSMo Supp. 1985, by which non-resident defendants may be deemed to have sufficient contact with the State to justify submitting them to the jurisdiction of the courts, including “the commission of a tortious act within the state.” The purpose of § 506.500 is “to extend the jurisdiction of the courts of this state over nonresident defendants to that extent permissible under the Due Process Clause of the Fourteenth Amendment of the Constitution of the United States.” State ex rel. Deere and Company v. Pinnell, 454 S.W.2d 889, 892 (Mo. banc 1970).

Appellant does not allege that the respondents committed any of the enumerated acts within the state. Rather, he argues that a conspiracy to invade his confidential inmate records was formed in a telephone conversation between respondents Abel and Rasche in Wisconsin and state prison officials in Missouri. He does not attempt to place himself within the Missouri scheme of statutory torts, but alleges that respondents, by violating an Arizona statute that protects the confidentiality of inmate records, violated the first, fourth and fourteenth amendment prohibitions against invasion of privacy and denial of due process. Neither the Missouri Department of Corrections nor the individual Missouri prison officials were named as defendants.

On review, we must first address the question of whether the requirements of § 506.500 have been met. Appellant does not allege that respondents committed a tortious act within the state. But the tortious act provision of § 506.500 has been interpreted to apply to “extra-territorial acts that have consequences in the forum.” Sun World Lines, Ltd. v. March Shipping Corp., 585 F.Supp. 580, 584 (E.D.Mo.1984). The telephone call that is the subject of this litigation was initiated in Wisconsin, with the intent of obtaining the cooperation of state prison officials in Missouri. Nothing [20]*20in the record suggests that the state prison officials knew the purpose of the affidavit or intended it for use in Missouri. The only purpose of the affidavit was to challenge appellant’s suit in Wisconsin; the ultimate effect of the phone call was felt in Wisconsin.

Further, we may consider whether respondents’ acts constitute the “minimum contacts” necessary to permit Missouri to assert jurisdiction over respondents, although the alleged acts are not strictly within the purview of § 506.500. For a court to assert personal jurisdiction over a nonresident defendant, “it is essential in each case that there be some act by which the defendant purposely avails [him]self of the privilege of conducting activities within the forum State.” Kulko v. Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 1698, 56 L.Ed.2d 132 (1978) (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958)). The application of the “minimum contacts” test is not “susceptible of mechanical application”; the facts must be weighed in each case to determine if the requisite “affiliating circumstances” are present. State ex rel. Sperandio v. Clymer, 581 S.W.2d 377, 382 (Mo. banc 1979).

When the alleged phone call was made, appellant was maintaining an action against Maxine Abel in the United States District Court for the Western District of Wisconsin.

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Bluebook (online)
716 S.W.2d 17, 1986 Mo. App. LEXIS 4650, Counsel Stack Legal Research, https://law.counselstack.com/opinion/krug-v-abel-moctapp-1986.