Anni v. Yatham v. Darril Young ( 2004 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2004-IA-01618-SCT
ANNI V. YATHAM
v.
CEDRIC ROCHIE YOUNG, ALEXIS RASHAAD
YOUNG, AMBERLY RAQUEL YOUNG, KAITLYNN
RESHAE YOUNG, ERICA TUCKER, TIMOTHY
TUCKER, MILDRED TUCKER AND DARRIL
YOUNG
DATE OF JUDGMENT: 05/02/2004
TRIAL JUDGE: HON. MARCUS D. GORDON
COURT FROM WHICH APPEALED: SCOTT COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: KELLY WYCHE McMULLAN
LELAND S. SMITH
ATTORNEYS FOR APPELLEES: GARY R. KING
EUGENE COURSEY TULLOS
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: REVERSED AND RENDERED - 10/13/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC
COBB, PRESIDING JUSTICE, FOR THE COURT:
¶1. This case is before the Court on an interlocutory appeal from the Scott County Circuit
Court’s denial of a motion to dismiss for lack of personal jurisdiction filed by Anni V. Yatham.
FACTS
¶2. On July 3, 2002, in McLean County, Illinois, a vehicle driven by Yatham struck another
vehicle being driven by Darril Young (Young). Yatham was a resident of Illinois while Young
and his passengers, Cedric Young, Alexis Young, Amberly Young, Kaitlynn Young, Erica
Tucker and Timothy Tucker1, were residents of Scott County, Mississippi.
¶3. The passengers of Young’s car filed suit in the Smith County Circuit Court against
Young and Yatham, and subsequently Darril Young filed a cross-claim against Yatham. After
initiation of the lawsuit, it was transferred to the Scott County Circuit Court. Yatham
responded by filing a Motion to Dismiss for lack of personal jurisdiction pursuant to Miss. R.
Civ. P. 12(b)(2). As part of her motion to dismiss, Yatham attached an affidavit stating in
relevant parts that:
6. I have never been to the State of Mississippi.
7. I have no contacts or connection with the State of Mississippi.
8. I have not made a contract with a resident of the State of Mississippi to
be performed in whole or in part by any party in this state.
9. I have not committed a tort in whole or in part in the State of Mississippi
against a resident or nonresident of this state.
10. I do not do any business or perform any character of work or service in
the State of Mississippi.
The trial judge denied Yatham’s motion without a written opinion and subsequently denied
Yatham’s request to file an interlocutory appeal. However, Yatham’s petition for interlocutory
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Mildred Tucker, as mother and next friend of Erica and Timothy, is also a party to this suit.
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appeal to this Court was granted. See Miss. R. App. P. 5. We hold that the trial court erred in
its ruling, and we grant Yatham’s Motion to Dismiss for lack of personal jurisdiction.
ANALYSIS
¶4. The standard of review for jurisdictional questions is de novo. McCain Builders, Inc.
v. Rescue Rooter, LLC, 797 So. 2d 952, 954 (Miss. 2001). In reviewing questions of
jurisdiction this Court is in the same position as the trial court, since all facts are set out in the
pleadings or exhibits. McDaniel v. Ritter, 556 So. 2d 303, 308 (Miss. 1989).
¶5. There is a two-tier test to determine whether it is appropriate for a Mississippi court
to exercise personal jurisdiction over a nonresident defendant. Horne v. Mobile Area Water
& Sewer Sys., 897 So. 2d 972, 976 (Miss. 2004). First, the nonresident defendants must have
engaged in activities that make them amenable to suit in Mississippi under the Mississippi
long-arm statute. Id. Second, the nonresident defendants must have availed themselves of
Mississippi in a manner that the exercise of personal jurisdiction would be consistent with the
due process clauses of the federal and state constitutions. Id.
¶6. The Mississippi long-arm statute states in part:
Any nonresident person . . . who shall make a contract with a resident of this
state to be performed in whole or in part by any party in this state, or who shall
commit a tort in whole or in part in this state against a resident or nonresident
of this state, or who shall do any business or perform any character of work or
service in this state, shall by such act or acts be deemed to be doing business in
Mississippi and shall thereby be subjected to the jurisdiction of the courts of
this state.
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Miss. Code Ann. § 13-3-57 (Rev. 2002). This Court has consistently interpreted this to mean
that there are only three activities which will permit the courts of Mississippi to exercise
personal jurisdiction over a nonresident defendant: (1) if that person has entered into a
contract to be performed in Mississippi; (2) has committed a tort in Mississippi; or, (3) is
conducting business in Mississippi. Rockaway Commuter Line, Inc. v. Denham ex rel.
Denham, 897 So. 2d 156, 158 (Miss. 2004).
¶7. In the present case, the plaintiffs are not claiming an action arising under contract or
from ongoing business being conducted in state by Yatham. Therefore, the present case must
sound in tort, and the only way that Yatham can be subject to personal jurisdiction before a
Mississippi court is if the tort was committed in Mississippi. This Court does not require that
the action giving rise to the tort actually occur in Mississippi in order for a tort to be
committed in state. Horne, 897 So. 2d at 977. Rather, for purposes of our long-arm statute,
a tort is committed in Mississippi when the injury results in this State. This is true because an
injury is necessary to complete a tort. Id.
¶8. In her uncontroverted affidavit, Yatham states that she is a resident of Peoria, Illinois,
and that she has never been to the State of Mississippi. Further, Yatham states, and the
plaintiffs concede, that she has never entered into a contract, done business or committed a
tort in the State of Mississippi. In addition, the plaintiffs actually concede that Yatham does
not have the contacts necessary to support personal jurisdiction anywhere in Mississippi, but
then assert that personal jurisdiction is nevertheless proper here because to require the five
minor residents to pursue their claims in Illinois would place an undue burden on them.
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Finally, the plaintiffs assert that Yatham would not be inconvenienced by a short trial in
Mississippi and that they fear that she is a flight risk because her permanent address is in
Anantapur, India.
¶9. For these claims the plaintiffs cite no authority and support with no evidence, and thus
we do not consider them in rendering our decision. There is a long line of authority in
Mississippi which has established that if an appellee fails to support an argument with relevant
authorities that this Court can consider such failure as conceding the claims of the appellant.
Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So. 2d 1346, 1360 n. 16 (Miss. 1990); Read v. S.
Pine Elec. Power Ass’n, 515 So. 2d 916, 921 (Miss. 1987); Devereaux v. Devereaux, 493
So. 2d 1310, 1314 (Miss. 1986); Holloway v. Jones, 492 So. 2d 573, 573-74 (Miss. 1986);
Nelson v. Clanton, 263 So. 2d 787, 789 (Miss. 1972).
¶10. The sole cause of action in this case arose out of injuries suffered in Illinois as a result
of events that occurred in Illinois. Applying the standard set out in Horne, application of the
Mississippi long-arm statute is inappropriate because Illinois is the place where the tort was
completed. Since personal jurisdiction is not appropriate under the long-arm statute, there is
no need for this Court to address whether it complies with the due process clauses of the
federal and state constitutions. see Rockaway, 897 So. 2d at 158.
CONCLUSION
¶11. Based upon the plain language of Miss. Code Ann. § 13-3-57, and the long established
precedent in this State, we reverse the trial court’s order denying Yatham’s Motion to Dismiss
for lack of personal jurisdiction, and we render judgment here dismissing for lack of personal
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jurisdiction the plaintiffs’ complaint, Darril Young’s cross claim and this action against Anni
V. Yatham.
¶12. REVERSED AND RENDERED.
SMITH, C.J., WALLER, P.J., CARLSON, GRAVES, DICKINSON AND RANDOLPH,
JJ., CONCUR. DIAZ AND EASLEY, JJ., NOT PARTICIPATING.
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