*1 LARRY SEMENZA, Aрpellant, Plaintiff and DON KNISS and STOCKMAN’S LIVESTOCK ORDER BUYING, INC., Appellees.
Defendants
No. DA 07-0185.
January
Submitted on Briefs
2008.
July
Decided
Rehearing
August
Denied
JUSTICE LEAPHART delivered it not have finding that did the District Court’s appeals Semenza ¶1 Stockman’s, grant of and the court’s personal affirm. favor of Stockman’s. We summary judgment issue as follows: We restate the did not have err it Did the District Court jurisdiction over Stockman’s?
BACKGROUND (“Semenza”) doing business is a livestock dealer Semenza Larry (“Kniss”) anis Don Kniss Company. as Semenza Cattle in Montana cattle, a but not bought and sold who Oklahoma resident a through The were introduced dealer. two registered bonded (“Sagers”). Semenza acquaintance, Sagers Harold mutual business in Montana. O Ranch from the Broken to sell Kniss cattle agreed paid was in Oklahoma. Semenza the cattle Kniss shipped Semenza $147,400 through for the transaction wire transfer from Buying, corporation Oklahoma called Stockman’s Livestock Order Inc. later, Several months Semenza and Kniss entered into a second $950/head, agreed 92 cows to Kniss deal. sell $87,400 Okalahoma, shipped total. Semenza the cattle to Kniss in $35,000. received wire transfer from Stockman’s for $52,400. he believes is still owed Initially, reparation Semenza filed a complaint with United Department Agriculture.
States The USDA initiated investigation, affidavits, appended and took several which are Appellee Stockman’s brief. before the USDA concluded its investigation, Semenza filed this suit in the Ninth Judicial District Court in Montana. Since Semenza elected to seek reliеf judicial system, state the USDA dismissed complaint. against
filed breach of contract both claims Kniss and arguing Only that Kniss acted as answered. granted Court District Stockman’s motion for summary
judgment. The court writing found that no existed either of the two cattle transactions. Since the sale of the cattle was covered U.C.C., purchase $500, and the price exceeded the oral contract *3 was not enforceable unless writing satisfying there was a the statute of frauds. The court found that Semenza failed to a produce such writing, agreеment thus held that the was unenforceable. The court also found that to produce writing ¶8 failed a gave which the authority Kniss to act Stockman’s agent. as Section 28- 10-203, MCA, that provides requires when the law a contract to be in an writing, agent’s authority to enter into that contract on behalf ofthe principal Thus, must also be in writing. bestowed the District Court found that Semenza purported could not enforce the oral contract against Stockman’s. agency relationship Absent an between Kniss and
¶9 personal District Court found that had jurisdiction it over granting summary Stockman’s. After motion judgment, Stockman’s the District complaint prejudice, Court dismissed Semenza’s attorney’s awarded Stockman’s its costs and fees. OF
STANDARD REVIEW granting summary The court’s order Stockman’s motion for ¶10 judgment contains of law. overlapping Spеcifically, conclusions court found that no existed between Stockman’s a of law. the court relationship, and Kniss as matter Absent personal jurisdiction that it could not exercise over concluded issue, a we personal jurisdiction Since is threshold discuss that jurisdiсtion personal A it lacks first. district court’s determination that conclusion law which we review for correctness. Cimmaron of Smith, 73, 8, 1, 8, 67 8. Corp. v. 2003 MT P.3d ¶ ¶ ¶ analyze personal jurisdiction, must also to address we of law question agency. Since the District Court’s conclusions of summary decidеd on a motion for agency issues were City Billings, issues de novo.Kuhr v. judgment, we will review these 402, 12, 168 201, 12, grant MT 12. A ¶ only if no issues of material fact judgment proper moving party is as a matter law. exist and the entitled Kuhr, 56(c); R. P. 12. M. Civ.
DISCUSSION did Did Court err it not have the District personal jurisdiction Stockman’s? personal can determine a Montana court exercise To whether defendant,
jurisdiction apply two-part non-resident test. over a Cimmaron, First, personal jurisdiction exists 10. we ask 4B(1). Second, Cimmaron, we examine R. P. under M. jurisdiction is consistent with personal whether the exercise of justice in the play offair and substantial embodied “traditional notions Cimmaron, process due clause.” 4B(1) to R. Civ.P. ? jurisdiction pursuant exist M. personal 1. Does as Kniss acted alleges the ultimate deal, purchaser Stockman’s was and that jurisdiction over Thus, the District Cоurt had argues,
cattle. 4B(1)(a), provides P. which R. Civ. Stockman’s under M. the state transact business within jurisdiction over entities which to determine whether In order 4B(1)(a), address this we must first under M. R. Civ. exists agency. question threshold acting agent? a. Kniss Was *4 that, as matter of above, found the District Court As discussed аnd Stockman’s. relationship existed between Kniss
law, agency conclusion on a Court reached this Since the District motion, the issue de novo. we review judgment the initial burden summary judgment bears moving for party
431 establishing of any genuine the absence issue of material faсt and County, entitlement to as a matter law. Prindel v.Ravalli 62, 19, 338, 19, 165, 2006 MT 133 ¶ 331 Mont. P.3d 19. If this ¶ ¶ met, Prindel, non-moving burden is the burden shifts to the party. ¶ summary judgment, 19.To avoid non-moving party the must “establish evidence, denial, with substantial opposed speculation, to mere assertions, conclusory genuine that a issuе of material fact does exist moving party that the is not under prevail applicable entitled the 263, 16, 330, .’’ Phelps Frampton, 16, 170 law v. 2007 MT 339 Mont. 474, P.3d recognized allegations We have of agency often involve
questions preclude by summary offact which judgment. resolution See e.g. County, 315, 317, 43, Stillman v. Fergus 220 Mont. 715 P.2d 44 (1986). However, summary judgment is appropriate party where a to present give genuine “fail[s] sufficient evidence to rise ato issue of material regarding agency relationship^” Contreraz v. (1995). Sawyers, 311, Michelotti- 271 300, 1118, Mont. 896 P.2d 1124 Intern., Accord Sunset Point v. Stuc-O-Flex 1998 MT 287 388, 25, 1156, 25; Mont. Polymeric 954 P.2d Northwest Farmers (1989). Bk., 175, 178-79, 768 873, 875-76 State We have held that undisputed “[w]here the concerning evidence the status of parties the reasonably defendant to each other is susceptible of but a inference, single question legal oftheir relationship... purely is one (citation Contreraz, law.” 271 Mont. at at 896 P.2d omitted). Thus we presented must consider sufficient evidence to raise a issue material fact alleged agency relationship between Stockman’s and Kniss. 28-10-103(1), MCA, Section provides: agency
An is either agency aсtual or ostensible. An is actual when agent really employed principal. An the principal intentionally ordinary ostensible when or want of care person causes third to believe another to be the principal’s person really employed by when that is not principal. appeal, argues provides that Stockman’s conduct circumstantial evidence of ostensible Kniss. conduct, An be agency may implied by may be e.g. Manufacturing
shown circumstantial evidence. Butler Co. See Co., 519, 524-25, v. J & L 965-66 Implement (1975). authority thе ostensible must arise from acts Co., MT principal, agent. Bellanger not the v.American Music *5 20-21, 20-21, 20-21. ¶¶ ¶¶ ¶¶ by committed
Notably, only here shows two “acts” the record to Semenza made wire transfers Semenza. two Stockman’s: cattle, receipt of the incurred also took claims that Stockman’s cattle, cattle. for the care of the and sold the expenses by the However, supported are not allegations Semenza’s Stockman’s, Kniss, not took evidence. The record indicates that and of sale inspection certificаte bill possession the cattle. pursuant to 81-3- by Department of Livestock § issued the Montana MCA, buyer. Semenza’s own handwritten lists Kniss as the sole trucking buyer. as the sole Both the invoice bill of sale also lists Kniss Oklahoma, and the feed the cattle from Montana to transporting for in storing they the cattle once were Oklahoma yardage and bill for Kniss, in Finally, to the cattle were sold charged were not Stockman’s. sum, daughter and his "wife.In the wire transfers Oklahoma Kniss’s could have inferred ostensible only are the “acts” from which Semenza authоrity. belief as to the party’s We have also cautioned that the third Turjan Valley agency relationship must be reasonable.
ostensible (1995). Here, find Estates, 386, 394, 901 76, 82 we View nothing support a reasonable belief that ostensible in record to between Kniss and Stockman’s. Kniss rеlationship existed in the all of the documents purchaser/owner listed the sole on receipt, the bill of sale from the record: Semenza’s own hand-written Livestock, surety under proof and the claim Department Montana Stockyards under the Act. bond issued Paсkers fact, that Kniss was any allegations In Semenza did not make original he filed with the USDA. complaint in the in the allege participated does not that Stockman’s that, sale, outside of wire negotiations undisputed and it is anyone at transfers, had contact with Stockmаn’s. never Stockman’s, but offers employed that Kniss was asserts proof his assertion. support or other to employment records of Sagers employed told him Kniss was Semenza claims he did not know affidavit, Sagers claims financial, Kniss- any Stockman’s and there was connection between above, must arise authority ostensible otherwise. And as discussed from the acts alleged principal- not from the acts of the Bellanger, party. ¶¶ alleged agent ofthe or other third representations suggest which end, In two of evidence only pieces 20-21. there are Kniss and might exist between agency relationship that an ostensible testifying to transfers, and affidavit Semenza’s the wire Stockman’s: hardly This is for Stockman’s. Kniss worked his own belief that of an as to the existence a reasonable belief suppоrt sufficient agency relationship. sum, failed to raise a issue hold that Semenza we relationship alleged agency respect of material Kniss. between Stockman’s exercising personal any grounds other b. Are there 4B(1)? M. R.
jurisdiction under exists as a matter Having that nо found conclude that there is little law Kniss and between support record the exercise else *6 Stockman’s made two wire transfers present Stockman’s in the case. for sale of the Semenza, party but not a to the contract the to was actually рarty have held that even where a enters a contract cattle. We Montana, subject of fact alone does not him to the with resident this Cimmaron, reap courts. 14. Stockman’s did jurisdiction of our deal charge bankrolling finance for Kniss’s cattle $10/head Kniss, Stockman’s, negotiated Semenza. not the transaction case, with Semenza. Under the facts this we conclude that of in Stockman’s collection of fees does not rise to the level of $920 e.g. Cimmaron, transacting business within the state. See 13-16. ¶¶ sum, grounds In that there are no other for conclude 4B(1). result, jurisdiction under M. R. P. As a we need not reach Cimmaron, step personal jurisdiction analysis. the second of our subject conclude to the We that Stockman’s not granting not err in Montana’s courts. District Court did jurisdiction. Stockman’s motion to dismiss for laсk of This conclusion on not appeal, moots the other issues raised thus we need reach them. GRAY,JUSTICES COTTER and RICE concur.
CHIEF JUSTICE JUSTICE WARNER dissents. view, my I In raises a issue of material dissent. agent. acting
fact about Kniss as Stockman’s was only where there are no Summary judgment appropriаte to moving party is entitled genuine issues of material fact and the 56(c). considering a R. When judgment as a matter of law. M. Civ. the the evidence must be viewed in summary judgment, motion for reasonable nonmoving party to all light most favorable the summary party opposing in favоr of the inferences are be drawn Rockies, Peterson, MT 110, the Inc. v. 2008 judgment. Lady Our (citation omitted). this instance the light Court does not consider the in evidence the most non-moving Rather, favorable to the party, Semenza. it draws all against by substituting inferences ajury finding itself for as а matter of fact presented that evidence he is not reasonable. acknowledges The Court that record shows two separate acts directly Stockman’s-the two wire transfers that came from Semenza, $182,000. Stockman’s to totaling These documents in the clearly record show money buy that Semenza knew that the cattle was paid gave good Stockman’s. This him reason to believe buying Kniss’ statements that he was for cattle allegation Semenza’s that statements these were made must be Thus, accepted purposes judgment. the mind of a reasonable jury, easily these wire transfers could constitute the acts or representations ofthe alleged principal, that required are agency. to create an Bellanger, See Stockyards generally nonchаlantly are not in the business wiring money country. paid around the The fact that Stockman’s strong buying cattle is circumstantial evidence that it was jury cattle A easily alleged could find that “loan” by Stockman’s to was in bogus, Kniss and Kniss was the actual alternative, Stockman’s. In the wire сould transfers reasonably be found to be careless acts that caused Semenza to believe agent, really Kniss be Stockman’s if he even was not. See 28-10- § 103(1), MCA. support As the record would a factual was
conducting trading Montana, its business this case should not *7 be jurisdiction. dismissed for lack of personal The Court inappropriately substitutes its of a jury. right I respectfully to a trial. dissent.