No. 12693 INTHE SUPREME COURT OF THE STATE OF MONTANA 1974

MOODY J. HARRINGTON and VICKY HARRINGTON, husband and wife, Plaintiffs and Appellants,

HOLIDAY RAMBLER CORPORATION, Defendant and Respondent.

Appeal from: District Court of theEighth Judicial District, Honorable Paul G. Hatfield, Judge presiding. Counsel of Record: ForAppellants : Hoyt and Bottomly, Great Falls, Montana John C. Hoyt argued, Great Falls, Montana For Respondent : Church, Harris, Johnson and Williams, Great Falls,

Montana Donald A. LaBar argued, Great Falls, Montana

Submitted: April 23, 1974 ~ecided :

### *&L 18

### 1974 Filed: 

### &L 18

### 1974

### Mr. Chief Justice JamesT. Harrison delivered the Opinion of the Court

# . This is an appeal froman order of the district court of Cascade County granting defendant's motion to dismiss for lack of jurisdictionover defendant. Themotion was made under Rule 12(b)(2), Montana Rules of Civil Procedure, Plaintiffs Moody J. Harringtonand 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 corporationand 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 newby plaintiffs in Spokane,Washington. The complaint in essence alleges: 

### (1) That plaintiffs purchased a new Holiday Rambler travel trailer at a total cost of $12,691 from a franchised dealer and agent of defendant. (2) That plaintiffs informed the dealer the trailerwas being purchased for use inMontana 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 additionprovides parts and service for its trailers inMontana. (4) That prior to and at the time of purchase defendant, through its agents and representatives,expressly and impliedly warranted to plaintiffs that the trailerwas fit for the use intended by them and that normal repairs and defectswould be made good by defendant at its sole expensewhile the trailerwas new. (5) %at defendant breached itswarrantieswith 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, inoperativedoors and locks,missing oven latch, leakywindows, falling draperies, holding tank odors, defective propane bottle, and various other defects. (6) That plaintiff Vicki Harrington, at the suggestion of a franchiseddealer of defendant in Great Falls,called the manager of defendant's factory in Indiana in order to ask about getting the trailer replacedwith a new unit inworkable order, whereupon the manager became belligerent and abusive and accused plaintiff of being drunkwhen she in fact does not drink alcoholic beverages, and informed her that since plaintiffs had purchased the trailer theywere stuckwith 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 theywere unable to use it for its intended purpose. (8) That defendant represented and warranted to plaintiffs that the trailerwas new and inworkable condition,and thereby induced plaintiffs to purchase it. (9) That defendant fraudulently and maliciously refused to honor its representations and warranties. (10) That defendant abused plaintiffs when they inquired what could be done about the situation. The prayer for reliefwas for a return of the down payment, assumptionby defendant of the finance obligations; $3,000 for personal suffering; $25,000 for punitive damages;plus costs and disbursements.Defendant filed a motion to dismiss forwant of jurisdiction

over its person. This motionwas 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 inMontana, and owns no parts, supplies or other property located inMontana. (2) That any orders received from dealers located in Montana are and have been received by defendant in Indiana,andshipped by common carrier F.O.B. Wakarusa, Indiana. (3) That no sales aremade by defendant through any employee or agentswithin 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 complaintwas 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 iswhether the denial djurisdiction, i.e. defendant's affidavit,overcomes the allegations of the complaint. We find it does not and hold that dismissal of plaintiffs' complaint on that groundwas premature. The complaint contains numerous allegations of a rather seriousnaturewhich, if proved, would place plaintiffs in a favorableposition. It states the trailer was purchased from a franchised dealer and agent of defendantwho did not chargeplaintiffs a Washington sales tax and who gave them a brochure listing two franchised factory agents fromwhom service could be obtained inMontana (alleged in the second complaint); that defendant sells and distributes its trailers inMontana; 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 itswarranties on the trailer and committed torts against plaintiffs inMontana. By comparison,defendant's affidavit is ambiguous ifnot 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 inMontana" and "no sales are made

# *** within

# * * * ~ontana." On the other hand, defendant admits at

It least tacitly to having dealers inMontana---orders received from dealers 'locatedinMontana" are acceptedby the factory in Indiana, etc. Moreover, the tenor of the affidavit may reflect an unduly restrictiveview 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 foundwithin 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 accrualwithin this state of a tort action. II 

### A reading of the allegations of the complaint clearly shows defendantwas "found" within the state of Montana and that defendant committed torts inMontana by way of fraud and personal abuse. Defendant's affidavit, however, does not satisfactorily explain awayplaintiffs' 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 fromhaving their day in court. We are not disposed to say it is always improper to grant a motion to dismiss for lack of jurisdictionover the defendant when at a hearing on that motion the defendant offers nothingmore 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-examinethe defendant. Fundamental fairness requires that to the extent plaintiffs are denied such an opportunity, defendant's affidavit should be given lessweight. Reversed and remanded for further proceedings not inconsistent with this Opinion.

-e' -r-r---rk--------,-,---------;5 Chief Justice

We Concur:

Justices.

/