dissenting.
I respectfully dissent.
For Missouri courts to exercise personal jurisdiction over a non-resident defendant, the defendant’s acts must fall within one of the categories of the “long-arm” statute and must constitute sufficient contacts with Missouri so that exercise of jurisdiction by our courts satisfies due process requirements. Medicine Shoppe International, Inc. v. J-Pral Corp., 662 S.W.2d 263, 271 (Mo.App.1983).
The United States Supreme Court in its landmark decision, International Shoe Company v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), created the “minimum contacts” requirement with the forum state. The court stated that due process is met and personal jurisdiction is established only if the contacts make it “reasonable and just according to our traditional conception of Fair play.” Id. at 320, 66 S.Ct. at 160. The subsequent case of Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239-40, 2 L.Ed.2d 1283 (1958), quoted by the majority, is now repeated with different emphasis:
The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contract with the forum state. The application of that rule will vary with the quality and nature of the defendant’s activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus involving the benefits and protections of its laws. (Emphasis added.)
The minimum contacts requirement was discussed in the context of Missouri law in Breiner Equipment Co. v. Dynaquip, Inc., 539 F.Supp. 204, 206 (E.D.Mo.1982), where the court found the contacts insufficient to exercise personal jurisdiction. The court held “[njeither use of the mails, telephone calls, nor unilateral activities on the part of the plaintiff in performing a contract is enough to subject a defendant to service of process in Missouri.”
In the present ease Golden Plains did not initiate, encourage, or receive economic benefit from HRS’s unilateral move into Missouri. For ten months after the move Golden Plains necessarily made telephone calls to the Missouri office, and mailed its payments to the new office but as the Breiner case holds, neither of these activities establish sufficient contact with the forum state. Likewise, HRS’s activities in Missouri were strictly unilateral. The fact Golden Plains had to send an accountant in June, 1982 to the Missouri offices because that’s where the books were located and sent an employee for a training session in December, 1982, does not establish minimum contacts. Golden Plains had no choice in the matter, and did not purposefully avail itself of the privilege of conducting activities in Missouri. Hanson, supra, 357 U.S. at 253, 78 S.Ct. at 1239. The “quality and nature” of Golden Plains’ activity in Missouri resulting from the plaintiff’s move do not rise to the level of “affiliating circumstances” to make it reasonable and fair to have to conduct a defense in Missouri. Kulko v. Superior Court of California, 436 U.S. 84, 92, 98 S.Ct. 1690, 1697, 56 L.Ed.2d 132 (1978). That Golden Plains continued contractual dealings with HRS after HRS moved to Missouri does not, under these circumstances, result in its being subjected to in personam jurisdic*513tion in this state. Kulko, supra, at 94, 98 S.Ct. at 1698. Also, it can be said the defendant here did not purposefully derive any benefit from any of the activities relating to Missouri. State ex rel. Sperandio v. Clymer, 581 S.W.2d 377, 382 (Mo. banc 1979). In M & D Enterprises, Inc. v. Fournie, 600 S.W.2d 64, 68 (Mo.App.1980), the court sets out five factors in considering the sufficiency of the minimum contracts for jurisdiction: (1) the nature and quality; (2) quantity; (3) relationship of the cause to the contacts; (4) the interest of Missouri in providing a forum; and (5) the convenience or inconvenience to the parties. Under these factors the contacts in Missouri, well after the contract, are insufficient to establish jurisdiction in this state, especially considering that this contract was, and continues to be for the management of a nursing home in Kansas.
The majority interprets Hanson and Sperandio as supporting the conclusion of the activities of Golden Plains as amounting to sufficient contacts or of being a substantial connection. In short, the defendant could not consider the contract breached by HRS’s move. By its reaction of continuing to do business, as it was contractually obligated to do with HRS Golden Plains should not be subject to our court’s jurisdiction.
The majority’s determination of Burger King's facts being parallel to those here I believe is incorrect. In the case at bar a nursing home in Hutchinson, Kansas simply wanted help in running a business that presumably drew patients from the area. Unlike the franchisee in Burger King, it couldn’t be imagined why Golden Plains would reach out to another state for management services to get some manifold benefits from a large nationwide organization. The franchisee in Burger King presumably could have opened his own hamburger stand. Had he done so and hired someone to come in and manage the operation, and that manager, a corporation, then moved its offices out of the area and a dispute developed, and the owner then been sued in another state would the facts in Burger King equate to those in this case.
Golden Plains wanted some help, but was not in the position of a fast foods franchisee who could have its store closed because it did not comply with operational decisions as made by HRS. The situation in this case is most dissimilar to the franchise relationship in Burger King.
The majority also contends it was foreseeable to Golden Plains that HRS would move to Missouri because it was a Missouri corporation. While that argument may sound compelling it ignores the undisputed fact HRS’s move six years into a ten year contract was a unilateral action; no matter how foreseeable the action might be, it cannot create the contact necessary for personal jurisdiction.
Further, I cannot agree any novation occurred. There was no contractual provision as to the state in which any lawsuit might be litigated. It is inconceivable the “response” of Golden Plains to the move of corporate offices could add such provision to the contract.
The result in this case works both ways. Assume a retirement home located in a small town in a remote part of this state which contracts for management with a New York corporation that has its main office in Columbia, Missouri, that moves its operation to New York, and assuming New York has a similar long arm statute, the Missouri home must defend any action in New York courts. The Missouri home then could not bleat about the New York contacts since the management firm had taken all the home’s books and reports of the home from Columbia to New York, and, the home then had to go or call there to check on its own records. The import of such a result should cause counsel to include appropriate provisions in future contracts.
The trial court’s judgment dismissing the case and quashing service should be affirmed.