Raese V. SIMPSON, Plaintiff-Appellant, v. DYCON INTERNATIONAL, INC. and Dycon of St. Louis, Inc., Defendants-Respondents.
No. 41401.
Missouri Court of Appeals, Eastern District, Division Four.
June 16, 1981.
618 S.W.2d 455
Richard Sher, St. Louis, for defendants-respondents.
SIMON, Judge.
Raese V. Simpson (appellant), a resident of this state, brought suit against Dycon
On appeal apрellant contends that the trial court erred in granting this motion, because respondent had transacted business and committed tortious conduct in Missouri whiсh subjected it to service of process under
The trial court‘s dismissal of appellant‘s petition for lack of personal jurisdiction under these particular facts, is an appealable judgment. Empiregas, Inc. of Noel v. Hoover Ball and Bearing Co., 507 S.W.2d 657 (Mo.1974). Appellant is a general agent for Bankers Life of Nebraska, with his principal place of business in St. Louis County. Respondent is a Texas corporation engaged in the manufacture and sale of electronic equipment and Dyсon of St. Louis is the Missouri distributor.
On or about January 9, 1978, appellant entered into an agreement with Dycon of St. Louis whereby it agreed to provide cеrtain telecommunication equipment manufactured by respondent at appellant‘s place of business for the purpose of contacting potential customers. The agreement guaranteed a positive result of 10% increase in customers within a two week test period.
Count I of appellant‘s petition alleges that: (1) the positive response resulting from the two week test period was far below 10%, (2) Dycon of St. Louis, upon realizing this, assured appellant that most of the money appellant paid for the equipment would be refunded, (3) Dycon of St. Louis removed thе equipment from appellant‘s premises, but has not refunded the money, (4) Dycon of St. Louis was acting as the agent of the respondent. Count II alleges that: (1) Dycon of St. Louis and respondent falsely advertised the equipment, (2) appellant relied on the misrepresentations in entering into the agrеement with Dycon of St. Louis, (3) at all times mentioned herein Dycon of St. Louis was acting as the agent of respondent. Respondent‘s motion to quash serviсe and to dismiss was supported by an affidavit executed by the President of respondent, wherein he admitted respondent sold certain telecоmmunication equipment to Dycon of St. Louis. Appellant stated he received advertising literature concerning the equipment containing the name of respondent only.
Our State Supreme Court has held that in enacting
“... was to extend the jurisdiction of the courts of this state over nonresident defendants to that extent permissible under the Due Prоcess Clause of the Fourteenth Amendment of the Constitution of the United States.”
“The forum state does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state.”
Thus, if respondent has sufficient minimum contacts with Missouri, due process requirements would be satisfied.
To determine whether or not the respondent had sufficient minimum contacts with this state to satisfy due process requirements, the following factors shall be considered: (1) the nature and quality of the contacts with the forum state, (2) the quantity of contacts with the forum state, (3) the relation of the cause of action to the contacts, (4) the interest of the forum state in providing a forum for its residents, and (5) the conveniencе of the parties. State ex rel. Peoples Bank, etc. v. Stussie, 536 S.W.2d 934, 938 (Mo.App.1976). Analysis of the facts of this case under the five factor test shows that the assertion of in personam jurisdiction over respondent does not offend due process.
The facts show that respondent had numerous contacts of significance with Missouri. The sale of the equipmеnt took place in Missouri. Respondent had sold its equipment to Dycon of St. Louis, which is located in Missouri, pursuant to a distributorship agreement. Advertising literature was distributed for the purpose of inducing Missouri residents to purchase equipment that respondent had manufactured. These contacts havе a direct relationship to the cause of action. The equipment involved was manufactured by the respondent. The advertising literature distributed whiсh referred to respondent, contained the alleged false representations on which appellant allegedly relied. Missouri has a substаntial interest in protecting its citizens from allegedly false advertising literature concerning a product sold in this state. Finally, two of the three parties involved in this litigation are residents of Missouri, which is the most convenient forum for the determination of the issues involved. It is abundantly clear that respondent wаs transacting business in Missouri and has sufficient “minimum contacts.”
Respondent argued in the trial court that Dycon of St. Louis was not its agent and therefore the court had no jurisdiction.2 Our foregoing analysis indicates that agency is not a required prerequisite of jurisdiction. Respondent has misinterpreted the jurisdictionаl requirements of
It is not necessary to address appellant‘s other points raised.
The judgment is reversed and remanded.
SMITH, P. J., concurs.
SATZ, J., concurs in result.
SATZ, Judge, concurring.
I concur in the result reached by the majority. I agree that, оn the present facts, Empiregas, Inc. of Noel v. Hoover Ball & Bearing Co., 507 S.W.2d 657 (Mo.1974) does make the trial court‘s judgment appealable. However, I question the rationale of Empiregas.