Charles E. Hurt, Esq.
Charleston, West Virginia
Attorney for the Appellants
Karl H. Goodman, Esq.
Attorney for the Appellees Isaac Neger
and Sabra Tours International
Charles B. Dollison, Esq.
Bowles Rice McDavid Graff & Love
Charleston, West Virginia
Attorney for Appellee On Your Way Travel
JUSTICE NEELY delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. When through inadvertence a plaintiff fails to post the bond required by W.Va. Code 56-3-33 , the proper sanction is to require the bond to be posted, not to dismiss the suit.
2. In our procedural law, sanctions should be condign to the dereliction.
3. Placing a bogus or fraudulent travel ticket or
reservation in the stream of commerce is tantamount to the
placement of a defective product into the stream of commerce;
personal jurisdiction premised on the placement of a product into
the stream of commerce is consistent with the Due Process Clause
and may be exercised without the showing of additional conduct by
the defendant aimed at the forum state.
In the case before us, the appellants were tourists who
travelled to Israel on a tour sponsored by Trinity Lutheran Church
in Charleston. The church, through its representatives, contacted
a local travel agency, On Your Way Travel, Inc., for tour
arrangements. On Your Way Travel, Inc. in turn contacted the
appellees, Isaac Neger and Sabra Tours International, Inc., by
telephone and mail on numerous occasions, and Mr. Neger arranged
the land portion of the tour, including hotel accommodations. The
appellants complain that after they arrived in the Holy Land, they
did not receive the tour itinerary that Mr. Neger and Sabra Tours
International, Inc. had promised and that had been confirmed to
them before they left West Virginia.
Notwithstanding confirmation of first-class accommodations
in three hotels in Israel, the appellants found that Mr. Neger and
Sabra International Tours, Inc. had arbitrarily changed their
accommodations from the four star Grand Beach Hotel to the unrated
shabby Park Hotel on the last leg of their trip. Two issues are
raised on this appeal: first, whether the circuit court was
correct in dismissing this civil action because appellants failed
to post a $100 bond required by W.Va. Code 56-3-33 ; and
second, whether the circuit court was correct in dismissing this
complaint for lack of personal jurisdiction. In both instances, we
find the circuit court erred and we reverse.
After this suit was filed and the appellees, Isaac Neger
and Sabra Tours International, Inc., filed their answer, an order
was entered on 9 December 1987 striking the pleadings of Mr. Neger
and Sabra Tours International, Inc. and awarding the appellants
judgment by default in an amount to be determined by inquiry. Upon
the inquiry of damages in this case, the court found:
"that each plaintiff is entitled to recover the sum of $307.00 representing the value of the tour prepaid by the plaintiffs but not received by them; the sum of $40.00 for meals and expenses to which they were entitled and did not receive and the sum of $250.00 each for aggravation, annoyance and inconvenience; that James E. Marion and Norma Marion are entitled to the amount of $234.60 for additional hotel expenses as well as is William Schillings and Betty Schillings; that Mamie Nida is entitled to the amount of $117.30 for additional hotel expenses, that Wilma Furr is entitled to the amount of $117.30 for hotel expenses and that Charles E. Hurt is entitled to the sum of $469.20 for additional hotel expenses;
"Wherefore, it is accordingly ordered that
the plaintiffs, James E. Marion and Norma
Marion, recover of and from the defendants,
Sabra Tours International, Inc. and Isaac Neger,
the sum of $831.60, that the plaintiffs, William
Schillings and Betty Schillings recover of and
from the defendants, Sabra Tours International,
Inc. and Isaac Neger, the sum of $831.60, that
the plaintiff, Mamie Nida, recover of and from
the defendants, Sabra Tours International, Inc.
and Isaac Neger, the sum of $714.30, that the
plaintiff Wilma Furr recover of and from the
defendants, Sabra Tours International, Inc. and
Isaac Neger, the sum of $714.30 and Charles E.
Hurt, for and on behalf of himself, Mildred M.
Hanly, Carolyn Hurt, Sarah J. Hurt, and John H.
Hurt recover of and from the defendants, Sabra
Tours International, Inc. and Isaac Neger, the
sum of $3,454.20, and their costs of action with
interest thereon until paid."
Thereafter, upon motion of Mr. Neger and Sabra Tours
International, Inc., the circuit court, finding that the appellants
had failed to post a nonresident bond in the sum of $100 required
by W.Va. Code 56-3-33  when the defendant is a non-resident,
set the judgment aside. Mr. Neger and Sabra Tours International,
Inc. then filed a motion to dismiss alleging lack of jurisdiction.
The circuit court treated this motion as a motion for summary
judgment and granted such motion, dismissing Isaac Neger and Sabra
Tours International, Inc. on the ground of lack of jurisdiction.
The circuit court set aside the judgment awarded the
appellants on 3 May 1989 as null and void because the appellants at
the time of filing their original complaint had not executed a bond
in the sum of $100 before the clerk of the circuit court as
required by W.Va. Code 56-3-33(c) . This ruling was based
upon our holding in Stevens v. Saunders, 159 W.Va. 179, 220 S.E.2d
887 (1975). However, the Stevens case is not on point. In
Stevens, the clerk of the circuit court refused to issue a summons
until the plaintiffs in that case had posted the required $100
bond. Because the plaintiffs posted no such bond until the statute
of limitations had run, we held that the cause of action was barred
because the suit had not been properly begun within the applicable
statutory period. In Syllabus Point 2, we stated:
Code, 56-3-31, as amended, is in derogation of common law in allowing a summons to be served upon the Auditor in an action against a non- resident defendant and therefore must be strictly adhered to in accordance with its clear and unambiguous terms.
In Stevens, the circuit clerk fully complied with W.Va.
Code 56-3-33(c) : he refused to begin the suit until the $100
bond was posted. In Stevens, the clerk himself brought to the
plaintiffs' attention the need to comply with the bond provisions
of W.Va. Code 56-3-31(a), the nonresident motorist statute at the
time. Indeed, the circuit clerk performed his proper function: he
declined to issue process until the statutory requirements had been
met. That, plainly, is his job.
In the case before us, in contrast, the circuit court did
not bring the bond requirement to counsel's attention and proceeded
to issue process even though the statutory bond had not been
posted. Practicing law is difficult enough without practitioners'
being cudgeled and bludgeoned at every novel turn by some
nitpicking rule that encourages a system of trial by ambush.
Lawyers frequently find themselves ensnared either through ties of
affection or pure happenstance in some area of the law where they
have no prior experience or expertise. The system simply can't
work if every member of the bar who isn't a certified, $500-an-hour
expert in a particular field hesitates to accept a case on even the
smallest matter in fear of subjecting himself to potential
malpractice. It does not further the public interest to discourage
the general practice lawyer-- accessible in his or her store-front
office-- and replace him or her by hourly billers inhabiting mega-
firm rabbit warrens.
This is an ideal case for applying the rule "no hurt, no
foul." See Rosier v. Garron, 156 W.Va. 861, 199 S.E.2d 50 (1973).
There is no question that the appellants should have posted the
bond. But once the appellees knew that the appellants had not
posted the bond, the proper course would have been to make a motion
for such bond to be posted which the court should have granted.
Nothing in our law requires the sanction of dismissal of a suit
where process has been properly served simply because the
plaintiffs did not post a bond as required by W.Va. Code 56-3-33
. Sanctions should be condign to the dereliction. As we
said in Rosier, 156 W.Va. at 876-77, 199 S.E.2d at 59 (1973):
The practicing lawyer has demands upon him which would severely tax the abilities of history's most versatile Renaissance men. Mistakes by lawyers are not mistakes by clients, and where a lawyer makes a mistake which causes his client to forfeit a case, the rule that identical factual situations outside the judicial process shall yield identical results in the judicial process is severely violated. There are those rare occasions when the dignity of the court or the orderly administration of justice require a meaningful sanction which can only be exacted in the form of forfeiture; however, these instances are rare, particularly where the defect in the proceedings was precipitated by inexperience, the confusing state of the law, or even negligence, rather than by intentional disregard of duty. Many clients are required by financial reasons to retain young, inexperienced, or even marginally qualified counsel, and where there is no prejudice to the adverse party, a court should always endeavor to eliminate disparities in results on the same set of facts attributable exclusively to competence of counsel as long as such action does not prejudice the other side. "Prejudice" in this context does not mean the mere loss of a lawsuit or need to proceed to trial because of the inability to profit from another's mistake, but rather it means a disadvantage of position which would not have occurred had the lawsuit been prosecuted according to exacting standards of procedural regularity.
The circuit court also erred in dismissing this suit for lack of jurisdiction. The problem before us, to wit, a travel agent's indifference to his contract obligations, is important because the injury suffered by the appellants is prototypical of a host of wrongs that are perpetuated daily by companies in the travel business. Persons like Mr. Neger and corporations like Sabra Tours, Inc. hold themselves out to be specialists in travel to particular parts of the world and invite business from travel agencies throughout the United States, including West Virginia. When they then cheat our residents, they will be subject to our jurisdiction until the Supreme Court of the United States deems otherwise.
There is absolutely no difference between a foreign
airline, an out-of-state resort, or an out-of-state travel agency
that actively solicits reservations from travel agents in West
Virginia through advertising on the one hand, and an out-of-state
manufacturer of a product which puts that product into the stream
of commerce knowing full well that it may injure someone in West
Virginia. Thus, in Hill by Hill v. Showa Denko, K.K., 188 W.Va.
654, 425 S.E.2d 609 (1992) we said in Syllabus Point 2:
"'Personal jurisdiction "premised on the placement of a product into the stream of commerce is consistent with the Due Process Clause" and can be exercised without the need to show additional conduct by the defendant aimed at the forum state.' Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102, 117, 107 S.Ct. 1026, 1034, 94 L.Ed.2d 92 (1987)."See footnote 1
In short, if it could be shown that an out-of-state travel
agent did nothing but service residents of its own state and was
importuned by a West Virginia resident through the mail or by long
distance telephone to arrange a tour, jurisdiction in our courts
might be avoided in that the travel agency would not have the
requisite minimal contacts with this State. But where, as is the
case here, out-of-state specialists accept large tours from travel
agents in West Virginia, then they have held themselves out in the
stream of commerce to such an extent that our long arm jurisdiction
will reach them.
Indeed, it is well established, but not entirely without
cavil, that where an out-of-state travel agency contracts for even
one tour with an in-state agent, the out-of-state travel agency is
"doing business" in the state where the travellers live and is
amenable to service of process in that state. Carter v. Trafalgar
Tours, Ltd., 704 F.Supp. 673 (W.D.Va. 1989); Gelfand v. Tanner
Motor Tours, Ltd., 385 F.2d 116 (2d Cir. 1967), cert. denied, 390
U.S. 996, 88 S.Ct. 1198, 20 L.Ed.2d 95 (1968); Shute v. Carnival
Cruise Lines, 897 F.2d 377 (9th Cir. 1990); Rainbow Travel Service
v. Hilton Hotels Corp., 896 F.2d 1233 (10th Cir. 1990); Weintraub
v. Walt Disney World, 825 F.Supp. 717 (E.D.Pa. 1993); Busch v. Sea
World of Ohio, 95 F.R.D. 336 (D.C.Pa. 1982); Walker v. Carnival
Cruise Lines, Inc., 681 F.Supp. 470 (N.D.Ill. 1987); Rogers v.
Clipper Cruise Lines, Inc., 650 F.Supp. 143 (D.Colo. 1986); Gavigan
v. Walt Disney World Co., 630 F.Supp. 148 (E.D.Pa. 1986); Ladd v.
KLM Royal Dutch Airlines, 456 F.Supp. 422 (S.D.N.Y. 1978); Holt v.
Klosters Rederi A/S, 355 F.Supp. 354 (W.D. Mich. 1973); Reed v.
American Airlines, 197 Mont. 34, 640 P.2d 912 (1982); Frummer v.
Hilton Hotels Internat'l, Inc., 19 N.Y.2d 533, 227 N.E.2d 851
Accordingly, for the reasons set forth above, the judgment
of the Circuit Court of Kanawha County is reversed and the case is
remanded for the reinstatement of the original judgment entered in
favor of the plaintiffs.
Footnote: 1Furthermore, our holding in Showa Denko was predicated on the
long-standing rule articulated in Hodge v. Sands Manufacturing
Company, 151 W.Va. 133, 150 S.E.2d 793 (1966) that:
The standard of jurisdictional due process is that a foreign corporation must have such minimum contacts with the state of the forum that the maintenance of an action in the forum does not offend traditional notions of fair play and substantial justice.
Syl. Pt. 1, Showa Denko, supra.