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No. 94-006 IN THE SUPREME COURT OF THE STATE OF MONTANA 1994
THE UNIVERSITY OF TULSA, Plaintiff and Appellant, v. GERTRUDE M. SPIERLING, fjkja GERTRUDE H. GORE, ajkja TRUDI SPIERLING, Defendant and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable John W. Larson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Julio K. Morales; Morales Law Office, Missoula, Montana For Respondent: Gertrude M. Spierling, Everett, Washington, Pro Se
Submitted on Briefs: March 24, 1994 Decided: May 3, 1994 Filed:
Clerk J .. Justice John Conway Harrison delivered the Opinion of the Court.
Appellant University of Tulsa (University) appeals from the
October 26, 1993 order of the Fourth Judicial District Court,
Missoula County, granting respondent Gertrude M. Spierling's
(Spierling's) motion to dismiss based on lack of personal
jurisdiction. We affirm. Since we conclude that the University's cause of action was properly dismissed for lack of personal jurisdiction, we do not
address appellant's other arguments.
The facts of this case are not in dispute. In 1978 Spierling
and her husband, James A. Gore (Gore), were divorced in Missoula
County, Montana. In 1986, also in Missoula County, Spierling sued
Gore for child support payments. After ordered by the court to
make the payments, Gore requested his then-employer, the
University, to deduct the payments from his paychecks. The first
payment was deducted from Gore's October 31, 1986, paycheck and
remi tted to the Clerk of the Court of Missoula County (Clerk).
Spierling moved to Washington state in 1988 where she continued to
receive child support payments through the Clerk. The University continued to remit the child support payments to the Clerk after Gore had left the University's employment in June, 1990, specifically throughout the months of July, August, September and
October, 1990. During those same months, Gore was also personally
remitting child support payments to the Clerk. Spierling,
therefore, was receiving twice the amount of child support payments
actually due her during those four months. On June 3, 1993 the
2 'f' .. ..... .
University filed suit in Missoula county against Spierling to
recover the excess payments. Did the District Court err in granting spierling's motion to
dismiss based on lack of personal jurisdiction?
The District Court concluded that Spierling's receipt of child
support payments from the Clerk did not constitute substantial
contacts with the state of Montana to establish a basis for general
personal jurisdiction over Spierling. In addition, the District
Court concluded that the passive receipt of payments could not be
analogized to any of the enumerated activities set out in Montana's
long-arm statute. A trial court's conclusions of law will be
upheld if we determine that its interpretation of the law was
correct. steer, Inc. v. Dep't of Revenue (1990), 245 Mont. 470,
474-475, 803 P.2d 601, 603. The University contends that spierling's receipt of child
support payments should be analogized to either a business
transaction or an act resulting in accrual of a tort action in
Montana.
Personal jurisdiction of a Montana court over a defendant is premised upon meeting the requirements of a two-part test. The
first prong is set out in Rule 4B(1), M.R.Civ.P., Montana's long- arm statute, and the second part of the test is derived from the constitutional right of a defendant to due process.
Rule 4B(1), M.R.Civ.P., states in pertinent part:
All persons found within the state of Montana are subject to the jurisdiction of the courts of this state. In addition, any person is subject to the jurisdiction of the courts of this state as to any claim for relief
3 r " .. -. - arising from the doing personally, through any employee, or through an agent, of any of the following acts: (a) the transaction of any business within this state; (b) the commission of any act which results in accrual within this state of a tort action. . . .
In Simmons oil Corp. v. Holly Corp. (1990), 244 Mont. 75,83,
796 P.2d 189, 194, we clarified the "found within" concept as applied to general personal jurisdiction:
A party is "found within" the state if he or she is physically present in the state or if his or her contacts with the state are so pervasive that he or she may be deemed to be physically present there. A nonresident defendant that maintains "substantial" or "continuous and systematic" contacts with the forum state is found within the state and may be subject to that state's jurisdiction even if the cause' of action is unrelated to the defendant's activities within the forum.
simmons Oil, 796 P.2d at 194. since Spierling, a resident of Washington state, is obviously
not "physically present" in Montana, we must determine whether she
is "found within" Montana according to the definition of this
concept as set out in simmons Oil, 796 P.2d at 194. Spierling's
only contact with the state of Montana was her receipt of child
support payments through the Clerk in Missoula County. The
Missoula County location was, in essence, a meeting point between the University, located in Tulsa, Oklahoma, and Spierling, who
resided in Washington state. The payment was simply sent to the
Montana location and subsequently forwarded on to Washington. We stated in simmons oil that in order to be "found within" a state,
one's contacts must be pervasive, substantial, or continuous and
systematic. 796 P.2d at 194. Spierling's contact with Montana was
neither pervasive nor substantial. Although Spierling
4 ·. , •
systematically received the payments, the act of receiving payments
is passive and is not actually a "contact" in the sense of conducting an activity. The facts in this case can be
analogized to the facts in May v. Figgins (1980), 186 Mont. 383,
607 P.2d 1132. In May, defendant Figgins, a Montana road
contractor with several employees, paid a total of thirty-five
monthly employer contribution checks into the designated depository
bank in Colorado. 607 P.2d. at 1133-34. We held that Figgins lacked sufficient "minimum contacts" to subject him to the jurisdiction of the Colorado court because the act of merely
sending checks did not constitute purposeful availment of the
privilege of conducting business within that forum. May, 607 P.2d.
at 1138. Accordingly, in this case, we hold that the act of merely
receiving checks is passive and inSUbstantial and does not subject
Spierling to general personal jurisdiction.
The University contends that specific long-arm jurisdiction
exists over Spierling under either SUbsection (a) or (b) of Rule
4B(1), M.R.Civ.p. As to subsection (a), the transacting of any
business wi thin this state, no authority exists to support the contention that the mere receipt of payments constitutes a business transaction. The Uni versi ty argues that the legal monetary
obligation between Spierling and Gore is, in essence, a business
transaction and that the parties chose Montana as the forum for the
transaction.
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No. 94-006 IN THE SUPREME COURT OF THE STATE OF MONTANA 1994
THE UNIVERSITY OF TULSA, Plaintiff and Appellant, v. GERTRUDE M. SPIERLING, fjkja GERTRUDE H. GORE, ajkja TRUDI SPIERLING, Defendant and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable John W. Larson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Julio K. Morales; Morales Law Office, Missoula, Montana For Respondent: Gertrude M. Spierling, Everett, Washington, Pro Se
Submitted on Briefs: March 24, 1994 Decided: May 3, 1994 Filed:
Clerk J .. Justice John Conway Harrison delivered the Opinion of the Court.
Appellant University of Tulsa (University) appeals from the
October 26, 1993 order of the Fourth Judicial District Court,
Missoula County, granting respondent Gertrude M. Spierling's
(Spierling's) motion to dismiss based on lack of personal
jurisdiction. We affirm. Since we conclude that the University's cause of action was properly dismissed for lack of personal jurisdiction, we do not
address appellant's other arguments.
The facts of this case are not in dispute. In 1978 Spierling
and her husband, James A. Gore (Gore), were divorced in Missoula
County, Montana. In 1986, also in Missoula County, Spierling sued
Gore for child support payments. After ordered by the court to
make the payments, Gore requested his then-employer, the
University, to deduct the payments from his paychecks. The first
payment was deducted from Gore's October 31, 1986, paycheck and
remi tted to the Clerk of the Court of Missoula County (Clerk).
Spierling moved to Washington state in 1988 where she continued to
receive child support payments through the Clerk. The University continued to remit the child support payments to the Clerk after Gore had left the University's employment in June, 1990, specifically throughout the months of July, August, September and
October, 1990. During those same months, Gore was also personally
remitting child support payments to the Clerk. Spierling,
therefore, was receiving twice the amount of child support payments
actually due her during those four months. On June 3, 1993 the
2 'f' .. ..... .
University filed suit in Missoula county against Spierling to
recover the excess payments. Did the District Court err in granting spierling's motion to
dismiss based on lack of personal jurisdiction?
The District Court concluded that Spierling's receipt of child
support payments from the Clerk did not constitute substantial
contacts with the state of Montana to establish a basis for general
personal jurisdiction over Spierling. In addition, the District
Court concluded that the passive receipt of payments could not be
analogized to any of the enumerated activities set out in Montana's
long-arm statute. A trial court's conclusions of law will be
upheld if we determine that its interpretation of the law was
correct. steer, Inc. v. Dep't of Revenue (1990), 245 Mont. 470,
474-475, 803 P.2d 601, 603. The University contends that spierling's receipt of child
support payments should be analogized to either a business
transaction or an act resulting in accrual of a tort action in
Montana.
Personal jurisdiction of a Montana court over a defendant is premised upon meeting the requirements of a two-part test. The
first prong is set out in Rule 4B(1), M.R.Civ.P., Montana's long- arm statute, and the second part of the test is derived from the constitutional right of a defendant to due process.
Rule 4B(1), M.R.Civ.P., states in pertinent part:
All persons found within the state of Montana are subject to the jurisdiction of the courts of this state. In addition, any person is subject to the jurisdiction of the courts of this state as to any claim for relief
3 r " .. -. - arising from the doing personally, through any employee, or through an agent, of any of the following acts: (a) the transaction of any business within this state; (b) the commission of any act which results in accrual within this state of a tort action. . . .
In Simmons oil Corp. v. Holly Corp. (1990), 244 Mont. 75,83,
796 P.2d 189, 194, we clarified the "found within" concept as applied to general personal jurisdiction:
A party is "found within" the state if he or she is physically present in the state or if his or her contacts with the state are so pervasive that he or she may be deemed to be physically present there. A nonresident defendant that maintains "substantial" or "continuous and systematic" contacts with the forum state is found within the state and may be subject to that state's jurisdiction even if the cause' of action is unrelated to the defendant's activities within the forum.
simmons Oil, 796 P.2d at 194. since Spierling, a resident of Washington state, is obviously
not "physically present" in Montana, we must determine whether she
is "found within" Montana according to the definition of this
concept as set out in simmons Oil, 796 P.2d at 194. Spierling's
only contact with the state of Montana was her receipt of child
support payments through the Clerk in Missoula County. The
Missoula County location was, in essence, a meeting point between the University, located in Tulsa, Oklahoma, and Spierling, who
resided in Washington state. The payment was simply sent to the
Montana location and subsequently forwarded on to Washington. We stated in simmons oil that in order to be "found within" a state,
one's contacts must be pervasive, substantial, or continuous and
systematic. 796 P.2d at 194. Spierling's contact with Montana was
neither pervasive nor substantial. Although Spierling
4 ·. , •
systematically received the payments, the act of receiving payments
is passive and is not actually a "contact" in the sense of conducting an activity. The facts in this case can be
analogized to the facts in May v. Figgins (1980), 186 Mont. 383,
607 P.2d 1132. In May, defendant Figgins, a Montana road
contractor with several employees, paid a total of thirty-five
monthly employer contribution checks into the designated depository
bank in Colorado. 607 P.2d. at 1133-34. We held that Figgins lacked sufficient "minimum contacts" to subject him to the jurisdiction of the Colorado court because the act of merely
sending checks did not constitute purposeful availment of the
privilege of conducting business within that forum. May, 607 P.2d.
at 1138. Accordingly, in this case, we hold that the act of merely
receiving checks is passive and inSUbstantial and does not subject
Spierling to general personal jurisdiction.
The University contends that specific long-arm jurisdiction
exists over Spierling under either SUbsection (a) or (b) of Rule
4B(1), M.R.Civ.p. As to subsection (a), the transacting of any
business wi thin this state, no authority exists to support the contention that the mere receipt of payments constitutes a business transaction. The Uni versi ty argues that the legal monetary
obligation between Spierling and Gore is, in essence, a business
transaction and that the parties chose Montana as the forum for the
transaction. The University also contends that this so-called
transaction is analogous to entering into a separation agreement.
We disagree.
5 . ~ . • ~.
A business transaction, by definition, entails both
communication and acti vi ty . The sUbstantive divorce and child
support issues were settled long ago between Spierling and Gore.
Spierling's only remaining contact with Montana was receiving
payments. She was not transacting any business.
The University contends, under Rule 4B(I) (b), M.R.Civ.P., that
its cause of action is based in tort and that Spierling's receipt
of child support payments in Washington resulted in the accrual of
a tort within the state of Montana. In other words, the so-called
tort arose out of spierling's contacts with Montana.
Since none of the other criteria under Rule 4B(I), M.R.civ.P.
are applicable, we conclude that there is neither general personal
jurisdiction over spierling, nor specific (long-arm) personal
jurisdiction over Spierling.
Because we hold that the state of Montana has no jurisdiction
over Spierling, we do not reach the issue of whether Spierling's
due process rights have been violated. Edsall Construction Co.,
Inc. v. Robinson (1991), 246 Mont. 378, 381, 804 P.2d 1039, 1041.
Affirmed.
Pursuant to section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.
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