State v. Murray's

767 S.W.2d 127, 1989 Mo. App. LEXIS 438, 1989 WL 28168
CourtMissouri Court of Appeals
DecidedMarch 28, 1989
DocketNo. 54558
StatusPublished
Cited by1 cases

This text of 767 S.W.2d 127 (State v. Murray's) 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
State v. Murray's, 767 S.W.2d 127, 1989 Mo. App. LEXIS 438, 1989 WL 28168 (Mo. Ct. App. 1989).

Opinion

KAROHL, Judge.

The issue on appeal is whether defendant Murray’s business activities were business transactions within Missouri so as to subject Murray’s to the registration requirements of § 351.570.1 RSMo 1986. Murray’s, a California corporation, appeals a $20,000 fine for failure to comply with §§ 351.570 and 351.635 RSMo 1986. The trial court entered judgment after finding Murray’s transacted intrastate business in the State of Missouri without procuring a certificate of authority or registering with the state in violation of § 351.570.1 RSMo 1986. On appeal, Murray’s contends it only engaged in interstate commerce, not intrastate commerce. The statute does not apply to interstate transactions. We find the evidence of Murray’s business activities did not support a finding of intrastate transactions within Missouri so as to subject Murray’s to the registration requirements of § 351.570 RSMo 1986. We reverse.

The review of this case has been hampered by the failure of the circuit attorney's office to participate in the appeal process. The circuit attorney’s office did not file a brief, nor did it appear for oral arguments. Exhibits which it introduced at trial were not filed with this court until specifically requested; even then, not all exhibits were filed.

Chapter 351 provides in pertinent part: “No foreign corporation shall have the right to transact business in this state ... until it shall have procured a certificate of authority so to do from the secretary of state.” § 351.570.1 RSMo 1986. Failure to procure a certificate may result in a fine as provided in § 351.635 RSMo 1986. Transacting any business in interstate commerce by a foreign corporation is not considered to be transaction of business in this state. § 351.570.2(9) RSMo 1986.

The record discloses proof of the following facts. Murray’s concedes it is a California corporation incorporated on September 30, 1977, with its principal place of business in Los Angeles, California. Murray’s business includes brokering tickets for major sporting events. It solicits ticket purchasers and buyers by nationwide advertising. Customers purchase tickets by telephone and pay for them by supplying charge card numbers with their order. Murray’s accepts orders and payment from its offices in California. Murray’s delivers the tickets to purchasers at the site of the event.

In October of 1987, Murray’s placed an advertisement in the St. Louis Post Dispatch soliciting potential buyers and sellers of World Series tickets. The advertisement listed two phone numbers which were located in California. The third number listed in the advertisement was a St. Louis number followed by the word “buying.” Ticket orders were placed with Murray’s office in California via the California phone numbers.

Tickets were distributed to customers in St.’ Louis, which was the site of several games of Major League Baseball’s 1987 World Series. Murray’s leased an apartment for one month and opened a checking account in St. Louis.1 While in St. Louis Murray’s sold two tickets to Ms. McNamara, the leasing consultant of the apartment complex, and bought two tickets from a St. Louis city policeman. Except for proof of these two transactions, Murray’s business in St. Louis consisted of distributing tickets to customers, the majority of whom were from outside Missouri and had [129]*129purchased and paid for tickets by long distance telephone to California.

The trial court found that Murray’s was a foreign corporation transacting business in Missouri without being registered to do business in the State of Missouri. It found Murray’s to be in violation of § 351.570.1 RSMo 1986 and ordered Murray’s to pay a $20,000 civil fine and costs pursuant to § 351.635 RSMo 1986.

Murray’s claim of error is that the court erred in finding Murray’s violated § 351.570 RSMo 1986 because the business conducted by Murray’s was the transaction of business in interstate commerce which does not subject Murray’s, a foreign corporation, to the registration requirements of § 351.570.1 RSMo 1986. We agree.

We review this application of statute under the standards set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We will uphold the judgment of the trial court unless there is no substantial evidence to support it or unless it erroneously declared or applied the law. Id. at 32. We find that the trial court erroneously applied §§ 351.570 and 351.635 RSMo 1986 to Murray’s.

The burden of proof was on the State of Missouri to establish that Murray’s was doing business in this state. The state charged a violation of § 351.570.1 RSMo 1986 which by its terms does not apply to interstate transactions. The existence of prohibited intrastate transactions is an element of the complaint. Further, see Superior Concrete Accessories v. Kemper, 284 S.W.2d 482, 487 (Mo.1955); Filmakers Releasing Organization v. Realart Pictures of St. Louis, Inc., 374 S.W.2d 535, 539 (Mo.App.1964).

There is no definitive definition of what constitutes “doing business” within Missouri so as to subject a foreign coloration to the registration requirements of § 351.570 RSMo 1986. A finding of what constitutes “doing business” in the state is to be determined on the facts in each individual case. Filmakers Releasing Organization, 374 S.W.2d at 540. Thus, the cases interpreting § 351.570.1 establish no clear pattern of what business activities establish “transacting business” in Missouri so as to require registration of a foreign corporation. American Trailers, Inc. v. Curry, 480 F.Supp. 663, 665 (E.D.Mo.1979), rev’d on other grounds, 621 F.2d 918 (8th Cir.1980). “It is well-settled [however] that, in determining whether a particular movement of freight is interstate or intrastate ..., the intention existing at the time the movement starts governs and fixes the character of the shipment....” Swift Textiles, Inc. v. Watkins Motor Lines, Inc., 799 F.2d 697, 699 (11th Cir.1986), cert. denied, 480 U.S. 935, 107 S.Ct. 1577, 94 L.Ed.2d 768 (1987) (quoting State of Texas v. Anderson, Clayton & Co., 92 F.2d 104, 107 (5th Cir.), cert. denied, 302 U.S. 747, 58 S.Ct. 265, 82 L.Ed. 578 (1937)).

The importation into one state from another is the indispensable element of interstate commerce. Filmakers Releasing Organization, 374 S.W.2d at 540. The usual dispute involving sale transactions develops when some part of an interstate sale occurs in the state. Where purchase, payment and delivery are done in Missouri the transactions are intrastate. Where all three elements are done outside the state, i.e., purchase and payment by telephone and delivery by mail, the transactions are purely interstate.

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Bluebook (online)
767 S.W.2d 127, 1989 Mo. App. LEXIS 438, 1989 WL 28168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-murrays-moctapp-1989.