Jones v. Chandler

• Decision Date: 18 December 1991
• Docket Number: No. 90-CA-0555,90-CA-0555
• Citation: 592 So.2d 966
• Parties: Carl Anthony JONES v. Desmond CHANDLER, by Velma Hodges, as Mother and Next Friend.
• Court: Mississippi Supreme Court

Page 966

592 So.2d 966

Carl Anthony JONES v. Desmond CHANDLER, by Velma Hodges, as Mother and Next Friend.

No. 90-CA-0555.

Supreme Court of Mississippi.

Dec. 18, 1991.

Lucius Edwards, Hernando, for appellant.

Carter Dobbs, Jr., Amory, for appellee.

En Banc.

ROBERTSON, Justice, for the Court:

I.

We consider today the plea of a non-resident defendant, who resided (temporarily) in this state and engaged in a course of conduct with a citizen of this state wholly within the territorial boundaries of this state, such that the non-resident was once wholly amenable to suit on a claim arising out of the course of conduct. The non-resident thereafter left Mississippi but from without visited upon citizens of this state substantial, adverse and actionable effects factually and causally the outgrowth of his earlier conduct here.

The question is whether our law makes such a person amenable to suit in Mississippi. We answer "Yes" and affirm the judgment below.

II.

Velma Hodges is an adult resident citizen of the State of Mississippi and has lived in Monroe County virtually all of her life. During the 1977-78 school year, Hodges was a student at Jackson State University in Jackson, Mississippi, where she met Carl Anthony Jones, also a student at Jackson State. The two dated for some seven to eight months and during this time, we are told, begat young Desmond Chandler, born on October 25, 1978. Jones has denied paternity and, as well, has refused to support Desmond.

On March 14, 1989, Desmond Chandler, by and through his mother and next friend, Velma Hodges, filed in the Chancery Court of Monroe County a complaint alleging that Carl Anthony Jones was his father and demanding support and maintenance according to law. The clerk of that court issued process and a deputy sheriff of Shelby County, Tennessee, personally served that process on Jones in Memphis. Jones answered, denying, inter alia, that he was amenable to personal jurisdiction in Mississippi in this case.

The Chancery Court held an evidentiary hearing on Jones' jurisdictional challenge. Jones called Hodges adversely and elicited from her the essentials of the relationship between the two, including the fact that the two had sexual relations but were never married and never lived together as husband and wife. The Chancery Court denied Jones' jurisdictional challenge.

Matters proceeded apace, and in due course on April 24, 1990, the Chancery Court found as a fact:

That the plaintiff, Desmond Chandler, the child of Velma Hodges, was born on October 25, 1978, and that the defendant, Carl Anthony Jones, is the father of said child.

The Court then ordered Jones to provide for the support and maintenance of the minor child and to pay additional sums as provided by law for attorney fees, costs, and the like. See Mississippi Uniform Law on Paternity, Miss.Code Ann. Secs. 93-9-1, et seq. (1972 and Supp.1991).

Jones appeals and presents no question regarding the merits of the case. He argues only that the Chancery Court had no personal jurisdiction over him.

III.

There is a preliminary question. Chandler argues Jones waived his jurisdictional challenge. Chandler predicates this claim on the fact that Jones filed an answer which did not specifically challenge personal jurisdiction as an affirmative defense, arguing that the answer constituted a general appearance, precluding Jones' later assertion of his jurisdictional claim.

The matter is now controlled by the Mississippi Rules of Civil Procedure. ¹ The matter is governed by Rule 12, Miss.R.Civ.P., which in pertinent part reads:

(b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:

(1) Lack of jurisdiction over the subject matter,

(2) Lack of jurisdiction over the person, ...

No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion.... (emphasis added)

Rule 12(h)(1), Miss.R.Civ.P., completes the picture.

(h) Waiver or Preservation of Certain Defenses

(1) A defense of lack of jurisdiction over the person, ..., is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by a motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.

Applying these rules, we find, first, that in his answer Jones charged

that the court lacks jurisdiction over the defendant in this cause.

The fact that he did not label this "Affirmative Defense" is of no moment. Jones followed up with a motion to dismiss for lack of personal jurisdiction, see Rule 12(b)(2), Miss.R.Civ.P. This is hardly the stuff of which waivers are made.

Most assuredly, objections to personal jurisdiction must be asserted timely or they will be held waived. Young v. Huron Smith Oil Co., Inc., 564 So.2d 36, 39 (Miss.1990); Brown v. Brown, 493 So.2d 961, 963 (Miss.1986). On the other hand, we have come a long way from the days when we once held that a non-resident defendant could unwittingly waive his jurisdictional defense by merely breathing in the direction of the courthouse. See O'Neill v. O'Neill, 515 So.2d 1208 (Miss.1987); Mladinich v. Kohn, 250 Miss. 138, 149-57, 164 So.2d 785, 790-94 (1964).

The Chancery Court correctly held Jones had presented his jurisdictional defense in a procedurally proper and timely manner.

IV.

A.

There is no question Jones was amenable to a paternity and support suit here so long as he remained in Mississippi. Jones says in effect that his subsequent (re)flight across the state line to Memphis changes all of this. The point arises under the law of this state. No one suggests Jones enjoys any federal constitutional shield from suit here. See International Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 159, 90 L.Ed. 95 (1945) and progeny, particularly Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984).

Had Jones and Hodges been married when they performed their begatting act, all other facts being the same, Jones would have been amenable to suit for support in Mississippi. Miss.Code Ann. Sec. 93-11-67(1) (Supp.1990). Had just one of them been married (to someone else) and had they performed in Mississippi the begatting act, albeit fruitlessly, Jones would have been amenable to suit here. ² Camp v. Roberts, 462 So.2d 726, 727 (Miss.1985), construing Miss.Code Ann. Sec. 13-3-57 (Supp.1990) (non-resident defendant committing criminal conversation here may be sued here). On today's facts, Carl Anthony Jones is on principle amenable to suit here as a matter of this state's positive law.

The Chancery Court held Jones amenable to Rule 4, Miss.R.Civ.P. Jones charges this was error, and we agree. Rule 4 provides a procedure for serving process upon those amenable to suit here by reference to other law, but, in his survey of "other law," Jones mistakenly assumes our hands are tied because he says we may find no statute expressly making him amenable to the suit in Mississippi.

In the first place, we see no reason why this case does not lie within Section 13-3-57. ³ Begatting a child suggests the father has assumed a quasi-contractual obligation to support the child, the statute requiring only a contract "to be performed in whole or in part by any party in this state." Begatting a child and refusing to support it sounds in tort, in the sense that we think a tort a "civil wrong." Section 13-3-57's catchall--"do any business or perform any character of work or service in this state"--is so broad that it belies any suggestion it be limited to commercial activity.

The states' legal long arms commonly take statutory form, but this does not have to be. It is a fact of history that state courts once took an unfortunately restrictive view of their powers over non-residents. See Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877). Recognizing that the interests of their citizens required more, the legislatures of the several states stepped forward and provided what are popularly known as long-arm statutes, but there is no reason on principle or power why the courts could not have done the same thing. ⁴ There is no reason why the existence of these long-arm statutes should be taken to preclude the courts' common law lawmaking powers absent, of course, legislative expression to the contrary. To suggest that long-arm amenability rules may be only statutory in form and legislative in source is to confuse the familiar with the necessary and thus fall into fallacy.

We have accepted this view in an analogous context. Where persons are married to each other and live in Mississippi, both are amenable here to suit for divorce, alimony, support and the like, notwithstanding one moves across the state line. Chenier v. Chenier, 573 So.2d 699 (Miss.1990), recognizes this view, cites our prior cases to that effect, and specifically accepts that the legal rule rendering the non-resident amenable to suit here is non-legislative in source and non-statutory in form. Chenier, 573 So.2d at 702. We find power in the public policy expression in the last paragraph of our general long-arm statute, Miss.Code Ann. Sec. 13-3-57, which covers:

any person who is a nonresident at the time any action or proceeding is commenced against him even though said person was a resident at the time any action or proceeding accrued against him.

Viewing our law as an organic whole, see J.L. Teel Company, Inc. v. Houston United Sales, Inc., 491 So.2d 851, 857 (Miss.1986); Grisham v. Hinton, 490 So.2d 1201, 1209 (Miss.1986) (Robertson, J., concurring), we find the unmistakable principle, long existing and deeply embedded, that (both resident and non-resident) persons who, by their...