Gross v. Chevrolet Country, Inc., No. 92-CA-00041-SCT

CourtMississippi Supreme Court
Writing for the CourtPRATHER; HAWKINS; McRAE, J., dissents with separate written opinion joined by DAN M. LEE, P.J., and JAMES L. ROBERTS; BANKS; McRAE; DAN M. LEE, P.J., and JAMES L. ROBERTS
Citation655 So.2d 873
Docket NumberNo. 92-CA-00041-SCT
Decision Date27 April 1995
PartiesDavid B. GROSS v. CHEVROLET COUNTRY, INC.

Page 873

655 So.2d 873
David B. GROSS
v.
CHEVROLET COUNTRY, INC.
No. 92-CA-00041-SCT.
Supreme Court of Mississippi.
April 27, 1995.
Rehearing Denied June 22, 1995.

Page 875

Paul M. Neville, Neville & Wilson, Jackson, for appellant.

Charles G. Copeland and Michael W. Baxter, Copeland Cook Taylor & Bush, Jackson, for appellee.

En banc.

PRATHER, Presiding Justice, for the Court:

I. INTRODUCTION

David Gross ("Gross"), a Mississippi resident, filed suit against Chevrolet Country, Inc. ("Chevy"), a Texas corporation, alleging Chevy was subject to in personam jurisdiction of the Mississippi courts pursuant to our long arm statute. Gross alleged Chevy was doing business in this State and further alleged Chevy had committed a tort in part within this state. Chevy moved for summary judgment, claiming the trial court lacked in personam jurisdiction; summary judgment was granted in favor of Chevrolet. Gross now appeals from the trial court's grant of summary judgment, seeking review of the following issues:

A. Whether the trial court erred in granting summary judgment in favor of Chevrolet Country, Inc., on the basis that the court lacked in personam jurisdiction over Chevrolet because it was not doing business within the state; and

B. Whether the trial court erred in finding no ground for the exercise of in personam jurisdiction over Chevrolet Country, Inc., in view of Gross' allegation that Chevrolet had committed a tort at least partially within the state.

The trial court did not err in granting summary judgment in favor of Chevy; therefore, this Court affirms.

II. THE FACTS AND PROCEDURAL HISTORY

Gross purchased a new 1983 General Motors Corporation (GMC) van from Martin Motor Company in Laurel, Mississippi. While traveling through Austin, Texas, on August 31, 1985, Gross' van became disabled and it was towed to Chevy, the nearest GM dealer in the area, on September 1, 1985. Chevy performed the necessary repairs, Gross paid for the services, and Gross regained possession of his van on September 4, 1985. On January 27, 1986, Gross' van would not start. The following day it was towed to Fowler Buick-GMC (Fowler) for repairs, the cost of which was $4,723.85. Fowler employees informed Gross that the repairs to the van were necessitated by damage caused by a nut that had been left in the air intake system during previous repairs. Fowler employees also told Gross that previous work they had performed on the van had not required access to the air intake system; therefore, the nut could not have been left there by Fowler. However, previous work by Fowler had required removal of the engine cover.

Page 876

On August 31, 1987, David Gross filed suit in the Hinds County Circuit Court against Chevrolet Country, Inc., GMC, and Fowler-Buick. Gross, a resident citizen of Mississippi, alleged that Chevy was a Texas corporation which had either done business in Mississippi or committed a tort within Mississippi. Gross alleged that only Chevy and Fowler had removed the engine cover with access to the air intake system. Gross claimed he had relied upon Chevy's and Fowler's service departments because of GMC's "Mr. Goodwrench" advertising programs. Gross further alleged a tortious breach of duty and negligence on the part of either Chevy or Fowler in repairing the van, alleged tortious conduct on the part of GMC because of its advertising campaign, and sought $54,873.00 compensatory and $10,000,000.00 punitive damages.

Chevy responded with a motion to dismiss for lack of in personam jurisdiction and an answer to Gross' complaint. Chevy's motion to dismiss was amended to show that it was not subject to in personam jurisdiction in Mississippi via this state's long arm statute. Gross sought to have Chevy's motion to dismiss held in abeyance until completion of discovery; Chevy's motion to dismiss was subsequently overruled. GMC filed a motion to dismiss, which was granted except as to the count alleging breach of express warranty.

Gross next amended his complaint to allege that Fowler employees told Gross the nut could have been left in the air intake system upon manufacture. Gross also dropped the intentional misconduct count contained in the original complaint. The punitive damages requested were reduced to $1,000,000.00. Again, Chevy answered and included a motion to dismiss for lack of in personam jurisdiction. GMC again moved for summary judgment, which was granted except as to the express warranty claim. The court reserved ruling on Gross' claim that a separate express warranty claim lay in the "Mr. Goodwrench" advertising campaign. Gross then filed a motion to reconsider the order of dismissal and order of partial summary judgment. The cause was subsequently dismissed because stale, then reinstated.

Gross requested leave to file a second amended complaint. Chevy then filed a motion for summary judgment, noting that Gross' claims against it arose from repairs to Gross' van performed by Chevy within the state of Texas on one occasion and claiming that the Mississippi long arm statute did not confer jurisdiction over Chevy. In the alternative, Chevy requested summary judgment because there were no genuine issues of material fact. Chevy claimed that adequate time for discovery had passed and Gross had not and could not provide any evidence that Chevy had left the extraneous nut in the air intake system of the van. Chevy further noted that the van performed well for nine thousand (9,000) miles after Chevy had performed repairs to the van.

The judge who issued the order on Gross' motions for leave to file an amended complaint, to reconsider the previous order of dismissal and partial summary judgment with respect to GMC, and Chevy's motion for summary judgment, noted that the previous orders of the court had been entered by a different judge. In his order, the new trial judge found that a previous order had reserved the question of all theories of recovery based on the "Mr. Goodwrench" advertising campaign. The court further found that Chevy was not subject to the Mississippi court's jurisdiction based on any alleged tortious actions in Texas. However, the court found that the question of whether Chevy was subject to jurisdiction because vicariously liable for any alleged negligence of Fowler as a co-venturer in the "Mr. Goodwrench" advertising campaign or because it was doing business in the state as such a co-venturer, remained.

The trial court granted Gross' request to file a second amended complaint, more explicit than the first amendment regarding the "Mr. Goodwrench" campaign, and Chevy's motion for summary judgment was held in abeyance pending further discovery on the "Mr. Goodwrench" advertising issue.

Gross filed his second amended complaint, to which Chevy responded that it was not subject to the court's jurisdiction. Chevy then moved to renew its prior motion for summary judgment. Gross opposed Chevy's

Page 877

motion for summary judgment, claiming that there were material issues of fact precluding such relief. Gross also submitted affidavits supporting his opposition of summary judgment; Chevy moved to strike both affidavits submitted by Gross.

The trial court granted Chevy's motion for summary judgment, finding as a matter of law that Fowler was not acting on behalf of Chevy when Fowler repaired Gross' van. The court also found that Chevy had no right to control the manner in which the repairs were performed by Fowler. The court concluded that with no imputed negligence from Fowler to Chevy, no grounds for in personam jurisdiction over Chevy remained. Gross' motion for a new trial or to alter judgment was denied.

GMC made an offer of judgment to Gross in the amount of $5,000.00, which was accepted. A summary judgment in favor of Chevy was subsequently entered by the court. This appeal followed.

III. THE LAW

A. Whether the trial court erred in granting summary judgment in favor of Chevrolet Country, Inc.:

1. on the basis that the court lacked in personam jurisdiction over Chevrolet because it was not doing business within the state; or

2. in view of Gross' allegation that Chevrolet had committed a tort at least partially within the state.

a. Summary Judgment

Rule 56(c) of the Mississippi Rules of Civil Procedure allows summary judgment where there are no genuine issues of material fact such that the moving party is entitled to judgment as a matter of law. To prevent summary judgment, the non-moving party must establish a genuine issue of material fact by means allowable under the Rule. Frank v. Dore, 635 So.2d 1369, 1373 (Miss.1994); Lyle v. Mladinich, 584 So.2d 397, 398 (Miss.1991).

This Court will review de novo a decision to grant summary judgment. Nationwide Mut. Ins. Co. v. Garriga, 636 So.2d 658, 660 (Miss.1994); Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 63 (Miss.1988). If any triable issues of fact exist, the lower court's decision to grant summary judgment will be reversed. Otherwise, the decision is affirmed. Brown v. Credit Center, Inc., 444 So.2d 358, 362 (Miss.1983). This Court, however, views the evidence in the light most favorable to the non-moving party. Turner v. Johnson, 498 So.2d 389, 390 (Miss.1986).

b. Mississippi Long Arm Statute

Gross contends Chevy is amenable to suit in Mississippi via our long arm...

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