No. 14958 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

ROBERT MAY,' Deputy Administrator, 

Western Conference of Teamsters Pension 

Trust Fund, 

Plaintiff, Respondent and Cross-Appellant, 

WILLIE FIGGINS, individually 

and d/b/a FIGGINS & SONS, 

Defendants, Appellants and Cross-Respondents. 

1 from: District Court of the Eighteenth Judicial District, 

County of Gallatin, 

Honorable W. W. Lessley, Judge presiding. 

Counsel of Record: 

For Appellant : 

Berg, Morgan, Coil & Stokes, Bozeman, Montana 

Michael C. Morgan argued, Bozeman, Montana 

For -Respondents : 

Bolinger, Higgins and Andes, Bozeman, Montana 

Gerry M. Higgins argued, Bozeman, Montana 

Submitted: February 25, 1980 

Decided : HA!? 1': @@ H~R I - I?;;, Filed: -1- 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

Plaintiff sued a state District Court in Montana to 

enforce a Colorado default judgment against defendant. 

Defendant moved for summary judgment based on Colorado's 

lack of personal jurisdiction over the defendant in the 

Colorado action. Summary judgment was denied. After trial, 

the Court, sitting without a jury, found for plaintiff. 

Defendant appeals from that judgment. 

The material facts are undisputed. Defendant Willie 

Figgins is a Montana road contractor who does most of his 

work in the Gallatin Valley. Including family members, 

Figgins has only seven employees at any one time. He does 

no road contracting in Colorado, does not advertise or 

solicit business in Colorado, and does not have a Colorado 

bank account. 

On December 17, 1971, Willie Figgins signed a "Collective Bargaining Compliance Agreement" which was also signed 

by representatives of the Montana Joint Council of Teamsters 

No. 23, which has no connection with the State of Colorado. 

The compliance agreement was accepted by the Montana A.G.C. 

Teamsters Trust Fund and by the trustees of the Western 

Conference of Teamsters Pension Trust Fund at Seattle, 

Washington. 

Under this agreement, Figgins agreed to be bound by the 

articles of trust contained in the pension trust fund. He 

agreed "to be bound by, become a party thereto, comply with 

and execute all forms necessary to be bound to the various 

Articles of Trust contained in the health and welfare plan 

and pension plan or any other trust established under the 

terms and conditions of said extent agreement." The Western 
Conference of Teamsters Pension Trust Fund is one of the 

trusts so established. The administrative office of the 

Western Conference of Teamsters Pension Trust Fund is in 

Seattle, Washington, the situs of the trust is the State of 

Washington, and the articles of the trust state that ". . . 

all questions pertaining to its validity, construction, and 

administration shall be determined in accordance with the 

laws of that State." The trust provides that "Employer Contributions shall be paid to the depository bank designated 

by the Administrator of the Trust Fund for the particular 

Pension Agreement," and that "The County in which the particular Employer Contribution is payable shall be a proper 

county in which to institute legal proceedings to collect 

delinquent Employer Contributions." 

Neither the collective bargaining compliance agreement 

nor the trust agreement specify where the contributions are 

to be made. In the compliance agreement, however, defendant 

also agreed to execute all necessary forms, one of which is 

the employer's monthly report which designates the United 

Bank of Denver in Denver, Colorado as the depository bank. 

Willie Figgins' bookkeeper sent thirty-five (35) checks, approximately one per month, to Colorado following the Trust 

Administrator's instructions, beginning on March 10, 1972. 

The checks were defendant's only contact with the State of 

Colorado. 

Figgins was later audited by a Seattle, Washington firm 

for the trust. Plaintiff-respondent, Robert May, Deputy 

Administrator of the trust, brought an action in Colorado to 

collect delinquent employer contributions from Figgins. A 

summons was served on Figgins in Montana, but he did not 

defend the Colorado lawsuit, and plaintiff took a default 
judgment in Colorado. Plaintiff brought suit in the Montana 

District Court to enforce the Colorado judgment. Figgins 

moved for summary judgment on the basis of Colorado's lack 

of personal jurisdiction over him in the Colorado suit, but 

the Montana District Court denied summary judgment and found 

for plaintiff. Defendant appeals from that judgment. 

The following issues have been presented to this Court 

for review: 

1. Did the defendant's act of sending thirty-five 

checks to the plaintiff's trust account in a Colorado bank 

establish sufficient "minimum contacts" to give the Colorado 

court - in personam jurisdiction over the nonresident Montana 

defendant? 

2. Did the Montana defendant knowingly consent to 

Colorado jurisdiction? 

On cross-appeal plaintiff presents the following issue: 

Did the trial court abuse its discretion by limiting 

plaintiff's attorney's fees to $1200? 

"As a result of the decisions of the Supreme 

Court expanding the limits of due process to 

permit the assertion of jurisdiction over nonresidents where there has been only minimal 

contacts with the forum state, states have responded by enacting long-arm statutes and court 

rules enlarging the scope of permissible jurisdiction in the state courts." 2 Moore's Federal 

Practice 714.41-1 [3] at 4-437. 

"Under these state long-arm statutes, the determination of whether the court has in personam 

jurisdiction is a two-step process. The court 

first must look to the state statute to determine whether the statute provides for the exercise of jurisdiction under the particular facts 

of the case, and second, the court must determine whether it would offend due process to 

assert jurisdiction." 2 Moore's Federal Practice 114.41-1111 at 4-421. 

The Montana Supreme Court has followed the two-step 

approach in Haker v. Southwestern Ry. Co. (1978), - Mont. 
, 578 P.2d 724, 729, 35 St.Rep. 523, and it is the 

proper frame of analysis in which to consider this case. 

A Colorado statute grants jurisdiction over nonresidents if the cause of action arises from ". . .the transaction of any business within this state." Colo. Rev. Stat. 

§ 13-1-124. The Colorado Supreme Court has interpreted the 

statute to mean that Colorado has - in personam jurisdiction 

over any nonresident who meets the "minimum contacts" test 

of International Shoe Co. v. State of Washington (1945), 326 

U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95. 

"By enacting the latter statutes, our legislature intended to extend the jurisdiction of 

our courts to the fullest extent permitted by 

the due process clause of the fourteenth amendment of the United States Constitution." 

Safari Outfitters, Inc. v. Superior Court 

(1968), 167 Colo. 456, 448 P.2d 783, 784. 

Accordingly, the only question to be decided is whether or 

not the Montana defendant's right to due process was violated by Colorado's assertion of jurisdiction in this case. 

The leading case addressing the question of when a 

state may exercise jurisdiction over the person of a nonresident defendant is International Shoe Co. v. State of 

Washington, supra. The State of Washington brought suit to 

recover unpaid contributions to the state unemployment 

compensation fund from a foreign corporation which had no 

office in Washington and made no contracts there, but which 

employed salesmen within the state to solicit orders. The 

defendant corporation maintained that the activities of its 

salesmen did not render it "present" within the state for 

purposes of personal jurisdiction consistent with due process. In rejecting these contentions, the Supreme Court 

announced: 
". . .due process requires only that in order 

to subject a defendant to a judgment in personam, if he be not present within the territory 

of the forum, he have certain minimum contacts 

with it such that the maintenance of the suit 

does not offend 'traditional notions of fair 

play and substantial justice.'" International 

Shoe, 326 U.S. at 316. 

The Supreme Court elaborated on the requirements of the 

"minimum contacts" test: 

"Whether due process is satisfied must depend 

rather upon the quality and nature of the activity in relation to the fair and orderly 

administration of the laws which it was the 

purpose of the due process clause to insure. 

That clause does not contemplate that a state 

may make binding a judgment in personam against 

an individual or corporate defendant with which 

the state has no contacts, ties, or relations 

"But to the extent that a corporation exercises 

the privilege of conducting activities within 

a state, it enjoys the benefits and protection 

of the laws of that state. The exercise of 

that privilege may give rise to obligations; 

and, so far as those obligations arise out of 

or are connected with the activities within 

the state, a procedure which requires the corporation to respond to a suit brought to enforce 

them can, in most instances, hardly be said to 

be undue." International Shoe, 326 U.S. at 

319. (Citations omitted.) 

Applying these standards to the facts in International Shoe, 

the Supreme Court held: 

"It is evident that these operations establish 

sufficient contacts or ties with the state of 

the forum to make it reasonable and just according to our traditional conception of fair 

play and substantial justice to permit the 

state to enforce the obligations which appellant has incurred there." 326 U.S. at 320. 

McGee v. International Life Ins. Co. (1957), 355 U.S. 

220, 78 S.Ct. 199, 2 L.Ed.2d 223, represents the farthest 

extension thus far of jurisdiction over a nonresident under 

the International Shoe doctrine. 2 Moore's Federal Practice 

114.25[4] at 4-253 and g4.41-l[l] at 4-413. In McGee the 

beneficiary under a life insurance policy brought suit in 
California against a nonresident insurance corporation. The 

foreign corporation was served by registered mail pursuant 

to California statutes. The policy upon which the suit was 

based had been purchased by the decedent from an Arizona 

company which was subsequently, absored by defendant, a 

Texas corporation. Defendant's only connection with California was that it had mailed a reinsurance certificate to 

the decedent in California offering to insure him under the 

terms of the original policy and later delivered the insurance contract there. Also, the insured had sent his premiums by mail to defendant in Texas. The plaintiff obtained 

a default judgment in a California state court against the 

nonresident insurance company and brought an action to 

enforce the judgment in Texas, where the Texas courts refused to give full faith and credit to the California decree 

on the grounds that the California court had not secured 

jurisdiction over defendant consistent with due process. 

The Supreme Court reversed holding that the California 

judgment did not violate due process under the rationale of 

International Shoe. The Court said: 

"It is sufficient for purposes of due process 

that the suit was based on a contract which had 

substantial connection with that State . . . The contract was delivered in California, the 

premiums were mailed from there and the insured 

was a resident of that state when he died. It 

cannot be denied that California has a manifest 

interest in providing effective means of redress 

for its residents when their insurers refuse to 

pay claims. These residents would be at a severe 

disadvantage if they were forced to follow the 

insurance company to a distant State in order to 

hold it legally accountable. When claims were 

small or moderate individual claimants frequently 

could not afford the cost of bringing an action 

in a foreign forum--thus in effect making the 

company judgment proof. Often the crucial witnesses--as here on the company's defense of suicide--will be found in the insured's locality." 

McGee. 355 U.S. at 223. 
Thus, - in personam jurisdiction was upheld in McGee where the 

only contact the nonresident had with the forum state was 

the insurance contract sued upon, and where no evidence was 

presented that any agent or representative of the defendant 

was ever in the State of California. "However, where defendant's contacts with the state are not sufficient to satisfy 

traditional notions of fair play and substantial justice, - in 

personam jurisdiction may not be secured over him through 

long-arm service." 2 Moore's Federal Practice 114.41-1[1] at 

4-414, citing Hanson v. Denckla (1958), 357 U.S. 235, 78 

S.Ct. 1228, 2 L.Ed.2d 1283. Hanson, decided a year after 

McGee, represents a limitation to the Supreme Court's earlier 

holdings in International Shoe and McGee. 

In Hanson, the United States Supreme Court denied a 

Florida court's assertion of jurisdiction over a Delaware 

trust and stated: ". . .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 invoking the benefits and protection of 

its laws." 357 U.S. at 253. In Hanson a resident of Pennsylvania created a trust, naming a Delaware trust company as 

trustee. The settlor retained a life estate and reserved a 

power of appointment over the remainder. She subsequently 

became a resident of Florida, where she executed an inter 

vivos power of appointment over a portion of the remainder 

and made out a will appointing the balance of the trust 

corpus to her executrix. When the settlor died in Florida, 

the question arose as to whether the assets appointed inter 

vivos should have passed under decedent's will, since the 

inter vivos appointment would have been invalid under Florida 
law as an attempted testamentary disposition. A declaratory 

judgment action was brought in Florida to resolve this 

issue. 

The Delaware trust company was given notice as required 

by the Florida statutes dealing with constructive service. 

The Supreme Court reversed the Florida court's adjudication 

of the matter, holding that under Florida law the Delaware 

trust company was an indispensable party over which the 

Florida courts had not obtained - in personam jurisdiction. 

The Supreme Court concluded there were insufficient contacts 

linking the trust company to the forum state. The majority 

opinion in Hanson stated: 

"In McGee the Court noted the trend of expanding 

- personal - jurisdiction over nonresidents . . . But it is a mistake to assume that this trend 

heralds the eventual demise of all restrictions 

on the personal jurisdiction of state courts. . . Those restrictions are more than a guarantee of 

immunity from inconvenient or distant litigation. 

They are a consequence of territorial limitations 

on the power of the respective States. However 

minimal the burden of defending in a foreign 

tribunal, a defendant may not be called upon to 

do so unless he has had the 'minimal contacts' 

with that State that are a prerequisite to its 

exercise of power over him. . . 

"We fail to find such contacts in the circumstances of this case. The defendant trust company 

has no office in Florida, and transacts no business there. None of the trust assets has ever 

been held or administered in Florida, and the record discloses no solicitation of business in that 

State either in person or by mail. . . 

"The cause of action in this case is not one that 

arises out of an act done or transaction consummated in the forum State. In that respect, it 

differs from McGee v. International Life Ins. Co., 

355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223, and 

the cases there cited . . . 

"In contrast, this action involves the validity 

of an agreement that was entered without any 

connection with the forum State. The agreement 

was executed in Delaware by a trust company incorporated in that State and a settlor domiciled in 

Pennsylvania. The first relationship Florida 

had to the agreement was years later when the 
settlor became domiciled there, and the trustee 

remitted the trust income to her in that State. 

From Florida Mrs. Donner carried on several bits 

of trust administration that may be compared to 

the mailing of premiums in NcGee. But the record 

discloses no instance in which the trustee performed any acts in Florida that bear the same relationship to the agreement as the solicitation in 

McGee. Consequently, this suit cannot be said to 

be one to enforce an obligation that arose from a 

privilege the defendant exercised in Florida. . . 

"The execution in Florida of the powers of appointment under which the beneficiaries and appointees 

claim does not give Florida a substantial connection 

with the contract on which this suit is based . . . The unilateral activity of those who claim some 

relationship with a nonresident defendant cannot 

satisfy the requirement of contact 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 

invoking the benefits and protections of its laws. 

International Shoe Co. v. State of Washington, 

326 U.S. 310, 319, 66 S.Ct. 154, 159, 90 L.Ed. 

95." 357 U.S. at 250-253. 

Defendant advocates that Hanson is dispositive of this 

appeal, apparently on the grounds that all of his initial 

contacts concerning the Western Conference of Teamsters 

Pension Trust Fund were not with Colorado, but were either 

with Montana or with the State of Washington, the situs of 

the trust. It is true that all of the initial contacts concerning the trust established in Hanson were either in Pennsylvania, where the settlor resided at the time the trust 

was created, or in Delaware, the situs of the trust, rather 

than in Florida, where the settlor resided at the time she 

exercised her power of appointment and at the time of her 

death. That fact, however, was not dispositive in Hanson, 

where the United States Supreme Court held that the Florida 

court had no personal jurisdiction over the trustee and no 

jurisdiction over the trust based on a finding that there 

were no "minimum contacts" between the Delaware trustee and 
the forum state of Florida, either initially or at any 

subsequent time. 

Nevertheless, Hanson has a bearing on the outcome of 

this appeal. In both cases, the nonresident defendant 

(Willie Figgins in this case, the Delaware trustee in 

Hanson) has no office in the forum state (Colorado in this 

case, Florida in Hanson), has no assets there, transacts no 

business there, and has not solicited business in the forum 

state. It is true that the cause of action in the present 

appeal arises out of Willie Figgins' failure to make employer contributions to the Colorado bank, while in Hanson 

the Court stated that the cause.ofaction was not one that 

arose out of an act done or a transaction consummated in the 

forum state, since the Delaware trust was not established in 

Florida and had no connection with Florida, despite the 

unilateral activity of the settlor in Florida and the 

trustee's remittance of trust income to her in that state. 

"The contacts required upon which to base jurisdiction, 

consistent with due process, would be greater where the 

action is brought upon a claim not arising from these contacts with the state, than where the action does arise from 

the state contacts." 2 Moore's Federal Practice 114.41-1[1] 

at 4-414. See International Shoe, supra, and Perkins v. 

Benguet Consolidated Mining Co. (1952), 342 U.S. 437, 72 

S.Ct. 413, 96 L.Ed. 485. Still, defendant's act of sending 

checks to Colorado can be compared with the activity of the 

Hanson trustee in remitting trust income to the settlor in 

Florida, and it must be remembered that in Hanson the Court 

held that there was no act by which the defendant trustee 

"purposely avails itself of the privilege of conducting 

activities within the forum state, thus invoking the benefits and protections of its laws." 357 U.S. at 253. 
Applying the rules enunciated in International Shoe, 

McGee and Hanson to the present case, it does not appear 

that defendant Willie Figgins had sufficient "minimum 

contacts" to subject him to the jurisdiction of the Colorado 

court. It would be unfair to this defendant and unreasonable to require him to defend in Colorado where his only 

contact with that forum was to mail thirty-five checks to a 

Denver Bank. Willie Figgins has no offices in Colorado, 

does no contracting work in Colorado, solicits no business 

there, and does not have a Colorado bank account. By his 

act of merely sending checks to plaintiff's bank in Colorado, 

he has not purposefully availed himself of the privilege of 

conducting business within that forum, and he has not thereby invoked the benefits and protections of its laws. Consequently, there is no rationale to justify subjecting him to 

Colorado ' s jurisdiction. 

In support of this conclusion are holdings from the 

courts of other states which state that merely making payments in a state does not establish the requisite minimum 

contacts to satisfy due process. U-Anchor Advertising, Inc. 

v. Burt (Tex. 1977), 553 S.W.2d 760, 763, cert. denied 434 

U.S. 1063; Freedom Finance Co. v. Berry (N.J.Super. 1972), 

62 N.J. 256, 

290 A.2d 298, affVd/300 A.2d 341; "Automatic" Sprinkler 

Corp. v. Seneca Foods Corp. (1972), 361 Mass. 441, 280 

N.E.2d 423. Compare Tucker v. Vista Financial Corp. (1977), 

Colo. , 560 P.2d 453, holding that California 

could properly exercise jurisdiction over a resident of 

Colorado whose sole contact with California was that in 

Colorado she co-signed a promissory note payable in California to a California bank and authorized funds to be 

disbursed in California. 
The Montana contractor did not knowingly consent to 

Colorado - in personam jurisdiction. In the collective bargaining compliance agreement which he signed with the 

Western Conference of Teamsters, located in Seattle, Washington, defendant agreed to be bound by the articles of trust 

contained in the pension trust fund. One provision of the 

articles of trust stated that the county in which the employer 

contribution is payable as designated by the Administrator 

of the trust fund "shall be a proper county in which to 

institute legal proceedings to collect delinquent Employer 

Contributions." Neither the collective bargaining compliance 

agreement nor the articles of trust specified where the 

employer contributions were to be paid. They were paid to 

the Colorado bank by defendant upon receipt of subsequent 

instructions from the Trust Administrator. In the collective bargaining compliance agreement, however, defendant 

also agreed to execute all necessary forms, one of which is 

the employer's monthly report which designates the depository bank. 

The general rule is that "parties to a contract may 

agree in advance to submit to the jurisdiction of a given 

court . . ." National Equipment Rental v. Szukhent (1964), 

375 U.S. 311, 316, 84 S.Ct. 411, 11 L.Ed.2d 354. In this 

case, however, the courts of Colorado could not exercise - in 

personam jurisdiction over the defendant consistent with due 

process, so that any purported consent to Colorado's jurisdiction would amount to a waiver of the constitutional right 

to due process and would have to be evaluated in that light 

and by the tests applicable to a waiver of constitutional 

rights. The defendant contractor in this case could not 

have known that the agreement which he signed would subject 
him to the jurisdiction of Colorado courts because there was 

nothing in the collective bargaining compliance agreement or 

in the articles of trust that specified the jurisdiction as 

to which he waived his constitutional due process rights. 

Hence, there was no clear waiver of his due process rights 

as required by Fuentes v. Shevin (1972), 407 U.S. 67, 95, 92 

S.Ct. 1983, 32 L.Ed.2d 556. Compare Clinic Masters v. 

District Court (1976), Colo. I 556 P.2d 473. As 

stated in Telephonic, Inc. v. Rosenblum (1975), 88 N.M. 532, 

543 P.2d 825, 830: "An agreement to waive this constitutional right must be deliberately and understandingly made, 

and language relied upon to constitute such a waiver must 

clearly, unequivocally and unambiguously express a waiver of 

this right." 

To accept the respondent's argument that the defendant 

here contractually consented to be sued in Colorado would be 

to give the respondent carte blanche to use contracts of 

adhesion to establish a right to sue defendants wherever 

would be most convenient to respondents, and least convenient to defendants. The contractual provisions purporting to waive - in personam jurisdiction are unreasonable and 

unenforceable. 

Furthermore, defendant did not waive his rights as to 

Colorado jurisdiction. The Compliance Agreement, which 

Willie Figgins signed, and Trust Agreement, to which he was 

bound, do not state specifically the county and state where 

legal proceedings are to be instituted. By subsequently receiving a notice to send payments to Colorado and by accommodating the Trust Administrator by mailing payments to 

Colorado, defendant did not deliberately, understandingly, 

clearly, unequivocally, and unambiguously consent to the 

jurisdiction of the State of Colorado. 
The judgment of the District Court is reversed and the 

cause is dismissed. The matter is remanded to the District 

Court so that proceedings may be had to determine costs and 

reasonable attorney fees for the services of defendant's 

attorneys and assessment of the same against plaintiff. 

I 

I 

Justice I 

We concur: 

a&-8 wa4. 

Chief Justice 

%A: 

Justices