No. 12693
I N T E SUPREME C U T O THE STATE O M N A A
H OR F F OTN
1974
MOODY J. HARRINGTON and VICKY HARRINGTON,
husband and w i f e ,
P l a i n t i f f s and A p p e l l a n t s ,
HOLIDAY R M L R CORPORATION,
A BE
Defendant and Respondent.
Appeal from: D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t ,
Honorable Paul G. H a t f i e l d , Judge p r e s i d i n g .
Counsel o f Record:
F o r Appellants :
Hoyt and Bottomly, Great F a l l s , Montana
John C. Hoyt argued, Great F a l l s , Montana
For Respondent :
Church, H a r r i s , Johnson and Williams, Great F a l l s ,
Montana
Donald A. LaBar argued, Great F a l l s , Montana
Submitted: A p r i l 23, 1974
~ e c i d e : *&L
d 1 8 1974
Filed : &L 1 8 1974
Mr. Chief Justice James T. Harrison delivered the Opinion of the
Court.
This is an appeal from an order of the district court of
Cascade County granting defendant's motion to dismiss for lack
of jurisdiction over defendant. The motion was made under Rule
1()2,
2b() Montana Rules of Civil Procedure,
Plaintiffs Moody J. Harrington and Vicki Harrington are
residents and citizens of the state of Montana and make their
home in Great Falls, Defendant Holidy Rambler Corporation is a
foreign corporation and has its principal place of business in
Wakarusa, Indiana,
The root of plaintiffs' complaint lies in an alleged defective
travel trailer manufactured by defendant and purchased new by
plaintiffs in Spokane, Washington. The complaint in essence alleges:
( ) That plaintiffs purchased a new Holiday Rambler travel
1
trailer at a total cost of $12,691 from a franchised dealer and
agent of defendant.
()
2 That plaintiffs informed the dealer the trailer was
being purchased for use in Montana and plaintiffs towed it there
immediately .
()
3 That defendant manufactures travel trailers and sells
and distributes them throughout the United States, including
Montana, and in addition provides parts and service for its trailers
in Montana.
(4) That prior to and at the time of purchase defendant,
through its agents and representatives, expressly and impliedly
warranted to plaintiffs that the trailer was fit for the use intended
by them and that normal repairs and defects would be made good by
defendant at its sole expense while the trailer was new.
(5) %at defendant breached its warranties with respect to
the trailer purchased by plaintiffs in that the following defects
were discovered: gas leaks, sagging floors, torn linoleum, faulty
drains, inoperative hot water tank, sagging ceilings, inoperative
doors and locks, missing oven latch, leaky windows, falling
draperies, holding tank odors, defective propane bottle, and
various other defects.
( ) That plaintiff Vicki Harrington, at the suggestion of
6
a franchised dealer of defendant in Great Falls, called the manager
of defendant's factory in Indiana in order to ask about getting the
trailer replaced with a new unit in workable order, whereupon the
manager became belligerent and abusive and accused plaintiff of
being drunk when she in fact does not drink alcoholic beverages,
and informed her that since plaintiffs had purchased the trailer
they were stuck with it, "She would have to keep the Goddam trailer
and quit bitching to him about it. 1'
(7) That plaintiffs had to store the trailer for 128 days
at $2.50 per day or a total cost of $320 because they were unable to
use it for its intended purpose.
(8) That defendant represented and warranted to plaintiffs
that the trailer was new and in workable condition, and thereby
induced plaintiffs to purchase it.
( ) That defendant fraudulently and maliciously refused to
9
honor its representations and warranties.
(10) That defendant abused plaintiffs when they inquired
what could be done about the situation.
The prayer for relief was for a return of the down payment,
assumption by defendant of the finance obligations; $3,000 for personal
suffering; $25,000 for punitive damages; plus costs and disburse-
ments.
Defendant filed a motion to dismiss for want of jurisdiction
over its person. This motion was supported by a brief and the
affidavit of its vice president, the salient parts of which claim:
()
1 That defendant has no representative in or assigned to
Montana, has not qualified to do business in Montana, and owns no
parts, supplies or other property located in Montana.
(2) That any orders received from dealers located in
Montana are and have been received by defendant in Indiana, and
shipped by common carrier F.O.B. Wakarusa, Indiana.
( ) That no sales are made by defendant through any
3
employee or agents within Montana.
At a hearing on defendant's motion, plaintiffs testified,
offered exhibits, and were cross-examined. Defendant relied solely
upon its affidavit, On the basis of this affidavit the district court
granted defendant's motion. Plaintiffs were given 20 days to amend
their complaint but did not do so. Thereafter the district court
ordered the case dismissed without prejudice.
After a brief but fruitless excursion into federal court,
plaintiffs filed a second complaint in the district court. This
complaint was substantially the same as the first one, but contained
even more allegations and asked for increased damages. Defendant
again filed a motion to dismiss for lack of jurisdictian and its
affidavit in support thereof. Without a hearing, the district court
granted the motion to dismiss.
Plaintiffs seek review of the merits of the district court's
ruling on the jurisdiction question,
The underlying issue is whether the denial djurisdiction,
i.e. defendant's affidavit,overcomes the allegations of the com-
plaint. We find it does not and hold that dismissal of plaintiffs'
complaint on that ground was premature.
The complaint contains numerous allegations of a rather
serious nature which, if proved, would place plaintiffs in a
favorable position. It states the trailer was purchased from a
franchised dealer and agent of defendant who did not charge plain-
tiffs a Washington sales tax and who gave them a brochure listing
two franchised factory agents from whom service could be obtained
in Montana (alleged in the second complaint); that defendant sells
and distributes its trailers in Montana; that parts and services
for defendant's trailers are available in Montana; that defendant's
franchised dealer in Great Falls suggested that plaintiffs call
defendant's factory in Indiana; and, that defendant violated its
warranties on the trailer and committed torts against plaintiffs
in Montana.
By comparison, defendant's affidavit is ambiguous if not
contradictory. On one hand defendant flatly asserts that it has
nothing to do with the state of Montana, has "no representative
resident assigned to or in Montana" and "no sales are made ***
within * * * ~ontana." On the other hand, defendant admits at
least tacitly to having dealers in Montana---Itorders received from
dealers 'located in Montana" are accepted by the factory in Indiana,
etc. Moreover, the tenor of the affidavit may reflect an unduly
restrictive view as to what Rule 4, M.R.Civ.P., demands in order
for jurisdiction to attach. Rule 4 b ( )
() 1 defines jurisdiction
of persons as:
"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 arising from the doing personally,
through an employee, or through an agent, of any
of the following acts :
"b the commission of any act which results
()
in accrual within this state of a tort action. I I
A reading of the allegations of the complaint clearly shows
defendant was "found" within the state of Montana and that defendant
committed torts in Montana by way of fraud and personal abuse.
Defendant's affidavit, however, does not satisfactorily explain
away plaintiffs' allegations concerning the former rule requirement,
and fails to address itself at all to the latter rule requirement.
The most troublesome aspect here is that defendant was
permitted simply to say "~ay"upon affidavit and thereby prevent
plaintiffs from having their day in court. We are not disposed to
say it is always improper to grant a motion to dismiss for lack of
jurisdiction over the defendant when at a hearing on that motion
the defendant offers nothing more in support of its position than
an affidavit, but we do feel that in the normal course of things
plaintiffs at least ought to have the opportunity to cross-examine
the defendant. Fundamental fairness requires that to the extent
plaintiffs are denied such an opportunity, defendant's affidavit
should be given less weight.
Reversed and remanded for further proceedings not inconsistent
with this Opinion.
-e'
-r-r---rk--------,-,---------;5
Chief Justice
We Concur:
Justices.
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