Alpaugh v. Moore

• Citation: 568 So.2d 291
• Decision Date: 10 October 1990
• Docket Number: No. 07-CA-59174,07-CA-59174
• Parties: Chester Theodore ALPAUGH, Jr. and Sedley Roussel Alpaugh v. Francis G. MOORE and Lorraine W. Moore.
• Court: United States State Supreme Court of Mississippi

Page 291

568 So.2d 291

Chester Theodore ALPAUGH, Jr. and Sedley Roussel Alpaugh v. Francis G. MOORE and Lorraine W. Moore.

No. 07-CA-59174.

Supreme Court of Mississippi.

Oct. 10, 1990.

Lee N. Perry, White & Morse, Gulfport, for appellants.

Oscar B. Ladner, Gulfport, for appellees.

Before HAWKINS, P.J., and ANDERSON and PITTMAN, JJ.

PITTMAN, Justice, for the Court:

Francis and Lorraine Moore filed suit against Chester and Sedley Alpaugh to establish the right to an easement across the Alpaughs' property. The Alpaughs moved to dismiss the complaint due to insufficient service of process. The chancery court ruled, without opinion, that the Alpaughs' motion to dismiss was without merit. After a trial on the merits, the Alpaughs appealed the rulings of the lower court.

The facts in this case are relatively simple. In 1956, Francis and Lorraine Moore purchased property joining the Wolf River in Harrison County, Mississippi. The Moores gained access to their property by using an old road that provided the only all weather passage to their land. This road travelled over land owned by others to a public roadway. The Moores used the old road to access their property without interruption until Chester and Sedley Alpaugh, of New Orleans, Louisiana, purchased the property that the old road traversed in 1983. At such time, the Alpaughs informed the Moores that they could no longer use the road for vehicular traffic. As a result, the Moores filed suit in Harrison County Chancery Court to establish that they had an easement by prescription over and across the Alpaugh property. To effect service of process on the defendants, a copy of the summons was posted on the door of the Alpaughs' Harrison County weekend retreat on February 12, 1984. On March 2, 1984 the Alpaughs filed a motion to dismiss objecting to the jurisdiction of the court. On March 7, 1984, the Alpaughs answered the complaint, counter-claimed against the Moores and once again objected to the jurisdiction of the court due to invalid service of process. Without opinion, the trial court denied the Alpaughs' motion to dismiss for insufficient service of process on February 19, 1987. After a trial on the merits, the lower court granted the Moores

an easement by necessity over and across the Alpaugh property and also found that an action to establish a private right of way under Miss.Code Ann. Sec. 65-7-201 was available to the Moores. From these findings, the following two issues will be discussed:

I. WHETHER SERVICE OF PROCESS PURSUANT TO MISSISSIPPI CODE ANN. Sec. 13-3-33 BY POSTING A COPY OF THE SUMMONS ON THE DOOR OF THE RECREATIONAL RETREAT OF CHESTER AND SEDLEY ALPAUGH WAS SUFFICIENT TO GIVE THE LOWER COURT JURISDICTION OVER THE DEFENDANTS?

Service of process was made on the Alpaughs by posting the summons onto the door of the Harrison County weekend home on February 12, 1984. This method of service was pursuant to Miss.Code Ann. Sec. 13-3-33 (1972) which was in effect from March 5, 1983 until May 2, 1985. Miss.R.Civ.P. 4, Comment. Section 13-3-33 provides for the service of process as follows:

The summons from every court shall be served in one of the following modes:

First-Upon the defendant personally, if to be found in the county, by handing him a true copy of the process.

Second-If the defendant cannot himself be found in the county, then by leaving a true copy of the process at his usual place of abode, with his wife or some other person of his family above the age of sixteen years, and willing to receive such copy.

Third-If the defendant cannot himself be found, and if no person of his family aged sixteen years can be found at his usual place of abode who is willing to receive such copy, then by posting a true copy on a door of the defendant's usual place of abode.

The issue raised by the Alpaughs is that the service of process, by posting, was not made at their "usual place of abode", and as such, was insufficient to give the trial court jurisdiction over them. The validity of this argument depends upon the definition of a person's "usual place of abode". Generally, a person's "usual place of abode" is the place the person is actually living at the time when the service of process is made. Hendricks v. Kellogg, 116 Miss. 22, 76 So. 746 (Miss.1917); 62B Am.Jur.2d Process Sec. 208 at Page 911 (1990). Under this general proposition, the Hendricks' court held that an unmarried woman had a "usual place of abode" in California where she had lived and worked for more than two years and planned to remain, despite the fact that the woman owned a house in Yazoo City, Mississippi where service was attempted. Id. 76 So. at 747.

Similar to the findings in Hendricks, the facts in the case at bar show that the Alpaughs live at 1131 State Street in New Orleans, Louisiana. The property that is the subject of litigation is used by the Alpaughs as a weekend retreat and not as a place of residence. The purpose of the term "usual place of abode" is primarily to refer to the place where the defendant is usually found. 62B Am.Jur.2d Process Sec. 208 at Page 911-912 (1990). Under this definition, the Alpaughs' "usual place of abode" would be in New Orleans, Louisiana and not at the weekend home in Harrison County.

Other jurisdictions addressing this issue have explained that a person's "usual place of abode" is a question of fact. French v. Angelic, 669 P.2d 1021, 1023 (Ariz.App.1983); United Bank of Loves Park v. Dohm, 115 Ill.App.3d 286, 71 Ill.Dec. 286, 450 N.E.2d 974, 976 (1983). In United Bank, the court held that the defendant's "usual place of abode" was the home where his wife and family resided instead of his apartment in another city. The defendant contended that service of process on his wife at the family home was insufficient because his "usual place of abode" was his apartment in Chicago where he actually lived during the week. The court stated that there is a rebuttable presumption that the house where a man's wife and children reside is his "usual place of abode". Id. 450 N.E.2d at 976. The record in the present action is void of any evidence to rebut the presumption in United Bank.

Under the limitations of Hendricks v. Kellogg, the Alpaughs' "usual place of abode" can be no place other than New Orleans, Louisiana. Consequently, the trial court lacked jurisdiction over them due to insufficient service of process.

For jurisdiction to have been proper in this action, service of process should have been made pursuant to Mississippi's "long arm" statute, Miss.Code Ann. Sec. 13-3-57 (1972 & Supp.1990). Section 13-3-57 provides in relevant part:

Any nonresident person, firm, general or limited partnership, or any foreign or other corporation not qualified under the constitution or laws of this state as to doing business herein, 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 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. Such act or acts shall be deemed equivalent to the appointment by such nonresident of the secretary of state of the State of Mississippi, ... to be the true and lawful attorney or agent of such nonresident upon whom all lawful process may be served in any actions or proceedings accrued or accruing from such act or acts, or arising from or growing out of such contract ... or as an incident thereto, by any such nonresident ...

* * * * * *

The doing of such business, or the engaging in any such work or service in this state, or the making of such contract ... shall be deemed to be a signification of such nonresident's agreement that any process against it ... which is so served upon the secretary of state shall be of the same legal force and effect as if served on the nonresident at its principal place of business in the state or country where it is incorporated and according to the law of that state or country.

The general principle regarding the exercise of jurisdiction over a nonresident is that he "may not be subjected to a litigation in a foreign jurisdiction unless he has 'certain minimum contacts with it such that maintenance of the suit does not offend the traditional notions of fair play and substantial justice'. McDaniel v. Ritter, 556 So.2d 303 (Miss.1989) (citing International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154 , 90 L.Ed. 95 (1945)." These contacts must amount to something more than occasional "fortuitous"...