No. 80-80 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

ESTHER KNOEPKE, et al., 

Plaintiffs and Appellants, 

SOUTHWESTERN RAILWAY CO., et al., 

Defendants and Respondents. 

Appeal from: District Court of the Tenth Judicial District, 

In and for the County of Judith Basin, 

The Honorable W. W. Lessley, Judge presiding. 

Counsel of Record: 

For Appellant: 

Robert L. Johnson and Torger Oaas, Lewistown, 

Montana 

For Respondent: 

Robert J. Emmons, Great Falls, Montana 

Dzivi, Conklin & Nybo, Great Falls, Montana 

Alexander and Baucus, Great Falls, Montana 

Filed : 

Submitted on Briefs: October 9, 1980 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

The plaintiffs in four wrongful death and survivorship 

lawsuits, Esther Knoepke, Allan Samson and Judith Mikkelson, 

Thomas and June Brady, and Frank and Marion Dusek, appeal 

from the judgment of the Tenth Judicial District Court, 

Judith Basin County. On December 28, 1979, the Hon. W. W. 

Lessley directed the entry of final judgment of an order 

entered June 7, 1977, in which the Hon. LeRoy McKinnon 

dismissed all the nonresident defendants from the 

plaintiffs' lawsuits. In his order, Judge Lessley found no 

reason for delaying the entry of Judge McKinnon's order and 

therefore directed final judgment be entered pursuant to 

Rule 54(b), M.R.Civ.P. In the plaintiffs' previous attempt 

to appeal Judge McKinnon's order, this Court declined to 

entertain the appeal because the dismissal order did not 

comply with Rule 54(b). See, Knoepke v. Southwestern Ry. 

Co. (1979), Mont. , 595 P.2d 376, 36 St.Rep. 957. 

The appeal is now properly before us. For reasons 

stated below, we affirm the decision of the District Court 

to dismiss the nonresident defendants from these lawsuits. 

Plaintiffs are the, legal survivors and relatives of 

passengers killed in an airplane crash which occurred near 

Stanford, Montana. Plaintiffs allege that an employee of 

the nonresident defendants negligently operated the 

airplane. This Court has twice reviewed the facts of this 

tragic accident, in -- Knoepke, -- supra, and in Haker v. 

Southwestern Ry. Co. (1978), Mont . , 578 P.2d 724, 

35 St.Rep. 523. The Haker case involved a wrongful death 

and survivorship lawsuit brought by the administrator of the 

estate of a passenger killed in this same airplane crash. 

Although the facts surrounding this accident are provided in 
our previous Knoepke and Haker decisions, we shall reiterate 

them briefly. 

On September 29, 1973, an airplane piloted by Arthur 

Myllymaki, Jr., crashed into the hills surrounding Stanford, 

Montana. The aircraft was owned by defendant, Charles 

Newman and loaned to defendant, Dudley Newman, for a flight 

from Arizona to Washington State. Following the flight to 

Washington, Dudley Newman gave Myllymaki, a pilot for 

defendant Sawyer Aviation Company, permission to fly the 

airplane to Stanford, to visit Myllymaki's relatives. At 

the time of the crash, Myllymaki was giving a joyride to his 

friends and relatives, including Lenny Haker , Patricia and 

Lyle Myllymaki, Zane Aaro Samson, John Raymond Brady and 

Leslie David Dusek. None survived the airplane crash. 

Plaintiff Esther Knoepke is the guardian ad litem for 

the three minor children of Patricia and Lyle Myllymaki. 

Plaintiffs Allan Samson and Judith Mikkelson are the parents 

and legal heirs of Zane Aaro Samson. Plaintiffs Thomas and 

June Brady are the natural parents and legal heirs of John 

Raymond Brady. Plaintiffs Frank and Marion Dusek are the 

natural parents and legal heirs of Leslie David Dusek. 

The original defendants in the Knoepke lawsuit included 

the Arizona Railway Company, Sawyer Aviation Company and the 

special administrator of Arthur Myllymaki's estate, Cecelia 

K. Bailey. The original defendants in the other three 

lawsuits included Southwestern Railway Company, Sawyer 

Aviation Company and Cecelia Bailey. The corporate 

defendants are all Arizona corporations. 

Other defendants later included in these lawsuits were 

Charles Newman, Dudley Newman and Darrell Sawyer. Charles 

Newman and Dudley Newman are brothers and are both residents 

of the State of Arizona, and officers and stockholders in 
Southwestern Railway Company. Additionally, the two 

brothers are engaged in a partnership doing business as 

Southwestern Railway Company. Darrell Sawyer, another 

Arizona resident, is the principal stockholder and general 

manager of Sawyer Aviation Company. He also does business 

individually as Sawyer Aviation Company and as Sawyer School 

of Aviation. 

In response to the complaints filed by the plaintiffs, 

defendant Sawyer Aviation Company entered a "special 

appearance" in each case moving to quash service of process, 

claiming lack of personal jurisdiction in the Montana 

District Court. Defendant Southwestern Railway Company 

filed an answer in the Samson, Brady and Dusek suits also 

challenging the jurisdiction of the District Court. 

Southwestern Railway Company was not named as a defendant in 

the Knoepke suit. Defendant Cecelia K. Bailey filed an 

answer in all four cases. Extensive discovery took place 

after these defendants made their initial appearance. 

On September 28, 1976, the Knoepke plaintiff filed a 

motion requesting that Arizona Railway Company be dropped 

from her lawsuit as a defendant. Knoepke requested that 

Southwestern Railway Company be substituted in its place. 

On the same day, the plaintiffs in all four suits moved to 

add Dudley Newman, Thomas Newman and Darrell Sawyer as 

-8ef endants. 

On June 7, 1977, Judge McKinnon granted plaintiffs' 

motions to add Dudley Newman, Charles Newman and Darrell 

Sawyer as defendants. The judge ordered the substitution of 

Southwestern Railway Company in the Knoepke lawsuit. The 

judge further ordered that the defenses previously 

interposed by the defendants in the suits be deemed 

interposed as to the joined defendants. 
At the same time, however, Judge McKinnon entered the 

following order : 

"IT IS ORDERED as follows: 

"1. The motion of the Defendants Darrell Sawyer 

and Sawyer Aviation Company to dismiss the 

complaint as to said Defendants be, and it is 

hereby, granted. 

"2. The motion of the Defendants Southwestern 

Railway Company, a corporation, Dudley Thomas 

Newman and Charles R. Newman, to dismiss the 

complaint as to said Defendants be, and it is 

hereby, granted. 

"3. The motion of the Plaintiffs for partial 

summary judgment be and is hereby, denied." 

The plaintiffs' attorney thereupon disqualified Judge 

McKinnon . Judge W. W. Lessley thereafter assumed 

jurisdiction of the cases and entered the December 1979 

order directing entry of judgment on Judge McKinnon's order. 

From this order for final judgment, plaintiffs appeal, 

presenting the following issues for our review: 

1. Is a "special appearance" made by a party defendant 

to quash service of a summons allowed under the Montana 

Rules of Civil Procedure? 

2. May a District Court use affidavits to determine 

its jurisdiction over a party to a lawsuit without denying 

any of the parties to the suit the right to a trial? 

3. Did the District Court err by ordering the 

dismissal of the nonresident defendants from the lawsuit? 

In their responding briefs, defendants raise an 

additional issue: Did the District Court err in its June 

1977 order joining the additional defendants without notice? 

We shall discuss these issues in the order they are 

presented. 

If a party to a lawsuit plans to appea.r in court to 

attack the court's personal jurisdiction, a special 

appearance of the party, as opposed to a general appearance, 
is no longer required. Rule 12, M.R.Civ.P., abolished the 

distinction between special and general appearances. 

Following service of process a party can attack the court's 

personal jurisdiction simply by raising the jurisdiction 

issue in an initial response to plaintiff 's claim by motion 

before answering the claim or in an answer to the claim. If 

the party's initial response to the opponent's claim raises 

a personal jurisdiction issue, then the party is not subject 

to the general power of the court solely because of the 

response. See, 2A Moore's Federal Practice 5 12.12. 

In this case, the Arizona defendants included attacks 

on the District Court's personal jurisdiction in their 

initial responses to the plaintiffs' complaints. In each 

response, the defendants moved the court to dismiss the 

claims for lack of personal jurisdiction. A1 though 

defendant Sawyer Aviation Company labeled its initial 

response a "special appearance", the contents of the 

response serve as a motion to dismiss for lack of 

jurisdiction. The court did not commit reversible error by 

granting a motion that used the antiquated label of special 

appearance. 

On the second issue, the plaintiffs contend that the 

court erred by using affidavits and discovery material 

included in the court file to determine whether the deceased 

pilot was acting within the scope of his employment with the 

Arizona defendants when the airplane crash occurred. 

Plaintiffs contend the court's determination here based on 

the discovery materials and affidavits, amounts to a 

decision of the defendant's ultimate tort liability rather 

than a factual determination of the court's jurisdiction 

over the Arizona defendants. We disagree. This 

determination was necessary for the court to respond to the 
Arizona defendants' claim regarding the court's 

jurisdiction. Sufficient minimum contacts between Montana 

and nonresident defendants must be found to exist in order 

for the court to exercise jurisdiction over these 

defendants. See, State ex rel. Goff v. District Court of 

First Jud. Dist. (1971), 157 Mont. 495, 487 P.2d 292. 

We agree with defendants' argument that while 

jurisdiction and ultimate liability in tort where disputes 

of fact exist are not subject to determination by motion, 

common collateral issues related to the defendant's 

connection with the tortious act are jurisdictional issues 

which may be resolved before trial. The court's use of 

affidavits to resolve these collateral issues was correct. 

The plaintiffs' constitutional rights were not violated by 

the court's action. 

In Halsey Brant v. Gatens Cattle Co. et al. 

(unpublished opinion, Civil No. 761, decided August 20, 

1969), the Hon. William Jameson used affidavits to decide a 

personal .j uri sdiction question quite similar to the 

question before Judge McKinnon. In Halsey, affidavits 

submitted by the parties were used to determine whether one 

of the named defendants was employed by a second named 

defendant, a non-Montana resident. Through the affidavits , 

Judge Jameson found the nonresident defendant was not the 

employer, which defeated the plaintiff's claim of minimum 

contacts between the non-resident defendant and the State of 

Montana. With regard to his use of the affidavits to 

determine jurisdiction, the court held: 

"The use of affidavits . . . (to determine personal jurisdiction) under Rule 12(d) is proper. 

While the rule itself does not specify the type of 

evidence which may be presented, Rule 43(e) 

provides that, 'When a motion is based on facts 

not appearing of record the court may hear the 

matter on af f idavits presented by the respective 

parties, but the court may direct that the matter 
be heard wholly or partly on oral testimony or 

depositions.' 

"Rule 56(e), relating to motions for summary judgment, provides that, 'Supporting and opposing 

affidavits shall be made on personal knowledge, 

shall set forth such facts as would be admissible 

in evidence, and shall show a££ irmatively that the 

affiant is competent to testify to the matters 

stated therein.'" 

Buttressing their argument on this issue, plaintiffs cite 

Harrington v. Holiday Rambler Corporation (1974), 165 Mont. 

32, 525 P.2d 556. In Harrington, we commented on the use of 

aff idavits as follows: 

"The most troublesome aspect here is that 

defendant was permitted simply to say 'Nay' upon 

aff idavit 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 that 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." 

The case now before us is significantly different 

than Harrington. Here, extensive discovery materials and 

affidavits were presented to the court. We approve of the 

District Court's use of these extensive discovery materials 

and affidavits in determining its jurisdiction over the 

nonresident defendants. The plaintiffs were given a 

sufficient opportunity to examine the nonresident defendants 

through depositions and interrogatories and to develop their 

argument regarding jurisdiction therein. 

Plaintiffs' third issue asserts the District Court 

erred in acting on its own in dismissing the nonresident 

defendants from these lawsuits. Plaintiffs argue that 

because the defendants did not specifically file a motion to 

dismiss before the court, the court was powerless to dismiss 

the defendants. Plaintiffs, however, misstate the 
defendants' actions. An examination of the initial 

pleadings filed by the nonresident defendants indicates the 

defendants specifically requested the court to dismiss the 

actions for lack of jurisdiction. These express requests 

necessitated the court's determination of jurisdiction and 

dismissal of defendants from the lawsuits. The defendants' 

responsive pleadings empowered the court to act. 

The fourth issue is brought by the nonresident 

defendants in their briefs filed in this appeal. The 

defendants argue that the District Court erred by granting 

plaintiffs' motions to add additional parties to the 

lawsuits without first providing notice of the motion to the 

defendants. We are asked to consider this issue under the 

"doctrine of compensatory error". We decline to do so. We 

find the court's action caused no prejudice to the 

defendants and therefore, we shall not address the question. 

For the foregoing reasons, we affirm the judgment of 

the District Court dismissing the nonresident defendants 

from these lawsuits. 

I Justice 

i 

We Concur: 

Chi, f Justice 1-7