No. 80-80 INTHE SUPREME COURT OF THE STATE OF MONTANA 1980

ESTHER KNOEPKE, etal., Plaintiffsand Appellants,

SOUTHWESTERN RAILWAY CO., etal., Defendants and Respondents.

Appeal from: DistrictCourt of the Tenth JudicialDistrict, Inand forthe County of JudithBasin, 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, GreatFalls, Montana Alexander and Baucus, GreatFalls, Montana

Filed: Submittedon Briefs: October 9, 1980Mr. Justice John C. Sheehy delivered the Opinion of the Court.

The plaintiffs in four wrongful death and survivorship lawsuits, Esther Knoepke, Allan Samson and JudithMikkelson, 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 hisorder, Judge Lessley found no

reason for delaying the entryof Judge McKinnon's order and therefore directed final judgment be entered pursuant to Rule 54(b),M.R.Civ.P. In theplaintiffs' 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. 

## ,595P.2d 376, 36 St.Rep. 957. The appeal is now properly before us. For reasons stated below, we affirm the decision of the DistrictCourt todismiss thenonresident 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. SouthwesternRy. Co. (1978), Mont

# . ,578 P.2d 724, 35 St.Rep. 523. The Haker case involved a wrongful death and survivorship lawsuitbrought by the administrator of the estate of a passenger killed in this same airplane crash. Although thefacts surrounding thisaccident areprovided inour previous Knoepke and Haker decisions, we shallreiterate them briefly. On September 29, 1973, an airplane piloted by Arthur Myllymaki, Jr., crashed intothehillssurrounding Stanford, Montana. The aircraft was owned by defendant, Charles Newman and loaned todefendant, Dudley Newman, for a flight from Arizona toWashington 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 ajoyride tohis friends and relatives, including Lenny Haker

## , Patricia and Lyle Myllymaki, Zane Aaro Samson, John Raymond Brady and LeslieDavid Dusek. None survived the airplanecrash. Plaintiff Esther Knoepke is the guardian ad 

### litem for the three minor children of Patricia and Lyle Myllymaki. PlaintiffsAllan Samson andJudithMikkelson are theparents and legal heirs of Zane Aaro Samson. PlaintiffsThomas and June Brady are the natural parents and legal heirs of John Raymond Brady. Plaintiffs Frank and Marion Dusek are the natural parents and legalheirsof LeslieDavid Dusek. The originaldefendants inthe Knoepke lawsuit included theArizona RailwayCompany, Sawyer AviationCompany 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 areallArizona corporations. Other defendants later included in these lawsuits were Charles Newman, Dudley Newman and Darrell Sawyer. Charles Newman and Dudley Newman arebrothers and areboth residents of the State of Arizona, and officers and stockholders inSouthwestern 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 asSawyer Aviation Company and asSawyer School of Aviation. 

### In response tothe complaints filed by the plaintiffs, defendant Sawyer Aviation Company entered a "special appearance" ineach casemoving toquash serviceof process, claiming lack of personal jurisdiction in the Montana District Court. Defendant Southwestern Railway Company filed an answer in the Samson, Brady and Dusek suitsalso challenging the jurisdiction of the District Court. SouthwesternRailway Company was not named asa defendant in the Knoepke suit. Defendant Cecelia K. Bailey filed an

answer in all four cases. Extensive discovery took place afterthesedefendantsmade their initialappearance. 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 suitsmoved 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 asdefendants. The judge ordered the substitutionof 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 astothejoined defendants.At the same time, however, Judge McKinnon entered the following order: "IT IS ORDERED asfollows: "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 ishereby, denied." The plaintiffs' attorney thereupon disqualified Judge McKinnon

# . Judge W. W. Lessley thereafter assumed jurisdiction of the cases and entered the December 1979 order directingentryof judgment on JudgeMcKinnon's order. From this order for final judgment, plaintiffs appeal, presenting the following issuesforour review: 1. Is a "special appearance" made by aparty defendant to quash service of a summons allowed under the Montana Rules of CivilProcedure? 2. May a District Court use affidavits to determine its jurisdiction over a party to a lawsuit without denying any of theparties tothe suittheright toa trial? 3. Did the District Court err by ordering the dismissal of thenonresident 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 defendantswithout 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, asopposed toa 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 toplaintiff's claim by motion before answering theclaimor inan answer tothe claim. If theparty's initial response to the opponent's claim raises

a personaljurisdiction issue, then theparty 

### isnot 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 thatused the antiquated label of special appearance. On the second issue, the plaintiffs contend that the court erred by using affidavits and discovery material included inthe court filetodeterminewhether thedeceased pilotwas actingwithin the scopeof hisemployment 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 determinationwas necessary for the court to respond totheArizona 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 FirstJud. Dist. (1971), 157Mont. 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 

### urisdiction question quite similar to the question before Judge McKinnon. In Halsey, affidavits submitted by the parties were used todetermine 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 contactsbetween 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

# . . . (todetermine personal jurisdiction) under Rule 12(d) is proper. While therule itself does not specify the typeof 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 affidavits presented by the respective parties, but the court may direct that the matterbe heard wholly or partly on oral testimony or depositions.' "Rule 56(e),relating tomotions for summaryjudgment, provides that, 'Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts aswould be admissible inevidence, and shallshow a££irmatively thatthe affiant is competent to testify to the matters statedtherein.'" Buttressing their argument on this issue, plaintiffs cite Harrington v. Holiday Rambler Corporation (1974), 165Mont. 32, 525 P.2d 556. InHarrington, we commented on theuse of affidavitsasfollows: "The most troublesome aspect here 

### is that defendant was permitted simply to say 'Nay' upon affidavit and thereby prevent plaintiffs from having their day incourt. We arenotdisposed 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 thatan affidavit, butwe do feel that in the normal course of things plaintiffs at least ought tohave theopportunity tocross-examine the defendant. Fundamental fairness requires that to the extent plaintiffs are denied such an opportunity, defendant's affidavit should be given lessweight." 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 extensivediscoverymaterials and affidavits in determining 

### its jurisdiction over the nonresident defendants. The plaintiffs were given a sufficientopportunity toexamine thenonresident defendants through depositions and interrogatoriesand todevelop their argument regardingjurisdiction 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 thedefendants did not specificallyfileamotion to dismissbefore the court, the courtwas powerless todismiss the defendants. Plaintiffs, however, misstate thedefendants' 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 toact. 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 lawsuitswithout firstproviding noticeof themotion tothe defendants. We are asked toconsider this issue under the "doctrine of compensatory error". We declinetodo so. We find the court's action caused no prejudice to the defendants and therefore, we shallnot 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

WeConcur:

Chi,f Justice 

# 1-7