No. 94-006 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

THE UNIVERSITY OF TULSA, 

Plaintiff and Appellant, 

v. 

GERTRUDE M. SPIERLING, 

fjkja GERTRUDE H. GORE, 

ajkja TRUDI SPIERLING, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable John W. Larson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Julio K. Morales; Morales Law 

Office, Missoula, Montana 

For Respondent: 

Gertrude M. Spierling, Everett, 

Washington, Pro Se 

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Submitted on Briefs: March 24, 1994 

Decided: May 3, 1994 

Filed: 

Clerk J 
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Justice John Conway Harrison delivered the Opinion of the Court. 

Appellant University of Tulsa (University) appeals from the 

October 26, 1993 order of the Fourth Judicial District Court, 

Missoula County, granting respondent Gertrude M. Spierling's 

(Spierling's) motion to dismiss based on lack of personal 

jurisdiction. We affirm. 

Since we conclude that the University's cause of action was 

properly dismissed for lack of personal jurisdiction, we do not 

address appellant's other arguments. 

The facts of this case are not in dispute. In 1978 Spierling 

and her husband, James A. Gore (Gore), were divorced in Missoula 

County, Montana. In 1986, also in Missoula County, Spierling sued 

Gore for child support payments. After ordered by the court to 

make the payments, Gore requested his then-employer, the 

University, to deduct the payments from his paychecks. The first 

payment was deducted from Gore's October 31, 1986, paycheck and 

remi tted to the Clerk of the Court of Missoula County (Clerk). 

Spierling moved to Washington state in 1988 where she continued to 

receive child support payments through the Clerk. The University 

continued to remit the child support payments to the Clerk after 

Gore had left the University's employment in June, 1990, 

specifically throughout the months of July, August, September and 

October, 1990. During those same months, Gore was also personally 

remitting child support payments to the Clerk. Spierling, 

therefore, was receiving twice the amount of child support payments 

actually due her during those four months. On June 3, 1993 the 

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University filed suit in Missoula county against Spierling to 

recover the excess payments. 

Did the District Court err in granting spierling's motion to 

dismiss based on lack of personal jurisdiction? 

The District Court concluded that Spierling's receipt of child 

support payments from the Clerk did not constitute substantial 

contacts with the state of Montana to establish a basis for general 

personal jurisdiction over Spierling. In addition, the District 

Court concluded that the passive receipt of payments could not be 

analogized to any of the enumerated activities set out in Montana's 

long-arm statute. A trial court's conclusions of law will be 

upheld if we determine that its interpretation of the law was 

correct. steer, Inc. v. Dep't of Revenue (1990), 245 Mont. 470, 

474-475, 803 P.2d 601, 603. 

The University contends that spierling's receipt of child 

support payments should be analogized to either a business 

transaction or an act resulting in accrual of a tort action in 

Montana. 

Personal jurisdiction of a Montana court over a defendant is 

premised upon meeting the requirements of a two-part test. The 

first prong is set out in Rule 4B(1), M.R.Civ.P., Montana's longarm statute, and the second part of the test is derived from the 

constitutional right of a defendant to due process. 

Rule 4B(1), M.R.Civ.P., states in pertinent part: 

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 

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- arising from the doing personally, through any employee, 

or through an agent, of any of the following acts: 

(a) the transaction of any business within this 

state; 

(b) the commission of any act which results in 

accrual within this state of a tort action. . . . 

In Simmons oil Corp. v. Holly Corp. (1990), 244 Mont. 75,83, 

796 P.2d 189, 194, we clarified the "found within" concept as 

applied to general personal jurisdiction: 

A party is "found within" the state if he or she is 

physically present in the state or if his or her contacts 

with the state are so pervasive that he or she may be 

deemed to be physically present there. A nonresident 

defendant that maintains "substantial" or "continuous and 

systematic" contacts with the forum state is found within 

the state and may be subject to that state's jurisdiction 

even if the cause' of action is unrelated to the 

defendant's activities within the forum. 

simmons Oil, 796 P.2d at 194. 

since Spierling, a resident of Washington state, is obviously 

not "physically present" in Montana, we must determine whether she 

is "found within" Montana according to the definition of this 

concept as set out in simmons Oil, 796 P.2d at 194. Spierling's 

only contact with the state of Montana was her receipt of child 

support payments through the Clerk in Missoula County. The 

Missoula County location was, in essence, a meeting point between 

the University, located in Tulsa, Oklahoma, and Spierling, who 

resided in Washington state. The payment was simply sent to the 

Montana location and subsequently forwarded on to Washington. We 

stated in simmons oil that in order to be "found within" a state, 

one's contacts must be pervasive, substantial, or continuous and 

systematic. 796 P.2d at 194. Spierling's contact with Montana was 

neither pervasive nor substantial. Although Spierling 

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systematically received the payments, the act of receiving payments 

is passive and is not actually a "contact" in the sense of 

conducting an activity. The facts in this case can be 

analogized to the facts in May v. Figgins (1980), 186 Mont. 383, 

607 P.2d 1132. In May, defendant Figgins, a Montana road 

contractor with several employees, paid a total of thirty-five 

monthly employer contribution checks into the designated depository 

bank in Colorado. 607 P.2d. at 1133-34. We held that Figgins 

lacked sufficient "minimum contacts" to subject him to the 

jurisdiction of the Colorado court because the act of merely 

sending checks did not constitute purposeful availment of the 

privilege of conducting business within that forum. May, 607 P.2d. 

at 1138. Accordingly, in this case, we hold that the act of merely 

receiving checks is passive and inSUbstantial and does not subject 

Spierling to general personal jurisdiction. 

The University contends that specific long-arm jurisdiction 

exists over Spierling under either SUbsection (a) or (b) of Rule 

4B(1), M.R.Civ.p. As to subsection (a), the transacting of any 

business wi thin this state, no authority exists to support the 

contention that the mere receipt of payments constitutes a business 

transaction. The Uni versi ty argues that the legal monetary 

obligation between Spierling and Gore is, in essence, a business 

transaction and that the parties chose Montana as the forum for the 

transaction. The University also contends that this so-called 

transaction is analogous to entering into a separation agreement. 

We disagree. 

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A business transaction, by definition, entails both 

communication and acti vi ty . The sUbstantive divorce and child 

support issues were settled long ago between Spierling and Gore. 

Spierling's only remaining contact with Montana was receiving 

payments. She was not transacting any business. 

The University contends, under Rule 4B(I) (b), M.R.Civ.P., that 

its cause of action is based in tort and that Spierling's receipt 

of child support payments in Washington resulted in the accrual of 

a tort within the state of Montana. In other words, the so-called 

tort arose out of spierling's contacts with Montana. 

Since none of the other criteria under Rule 4B(I), M.R.civ.P. 

are applicable, we conclude that there is neither general personal 

jurisdiction over spierling, nor specific (long-arm) personal 

jurisdiction over Spierling. 

Because we hold that the state of Montana has no jurisdiction 

over Spierling, we do not reach the issue of whether Spierling's 

due process rights have been violated. Edsall Construction Co., 

Inc. v. Robinson (1991), 246 Mont. 378, 381, 804 P.2d 1039, 1041. 

Affirmed. 

Pursuant to section I, Paragraph 3(c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of the Supreme Court and by a report of its result 

to Montana Law Week, State Reporter and West Publishing Company. 

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