Miller v. Provident Adver. & Mktg., Inc.

• Decision Date: 17 June 2014
• Docket Number: 2013–CA–00262–COA.,Nos. 2012–CA–01198–COA,s. 2012–CA–01198–COA
• Citation: 155 So.3d 181
• Court: Mississippi Court of Appeals
• Parties: Sherrie Allison MILLER, Appellant v. PROVIDENT ADVERTISING AND MARKETING, INC., Provident Management Corporation, Inc., Hooters, Incorporated, Hooters of America, Inc. and Anna Cladakis, Appellees. Sherrie Allison Miller, Appellant v. Provident Advertising and Marketing, Inc., Provident Management Corporation, Inc., Hooters, Incorporated, and Anna Cladakis, Appellees.

155 So.3d 181

Sherrie Allison MILLER, Appellant

v.PROVIDENT ADVERTISING AND MARKETING, INC., Provident Management Corporation, Inc., Hooters, Incorporated, Hooters of America, Inc. and Anna Cladakis, Appellees.

Sherrie Allison Miller, Appellant

v.Provident Advertising and Marketing, Inc., Provident Management Corporation, Inc., Hooters, Incorporated, and Anna Cladakis, Appellees.

Nos. 2012–CA–01198–COA

2013–CA–00262–COA.

Court of Appeals of Mississippi.

June 17, 2014.

Rehearing Denied Oct. 14, 2014.

Certiorari Denied Jan. 15, 2015.

Drayton D. Berkley, attorney for appellant.

Emil Eugene Thornton III, Paul Brooks Eason, William Edgar Cochran Jr., Caren B. Nichol, Ceejaye S. Peters, Jackson, Stanford G. Wilson, Vickie Hardy Jones, attorneys for appellees.

EN BANC.

Opinion

BARNES, J., for the court:

¶ 1. Sherrie Allison Miller sued Anna Cladakis in the DeSoto County Circuit Court for alienation of affection and intentional infliction of emotional distress. Miller also sued Cladakis's alleged employers: Provident Advertising and Marketing Inc. (Provident), Provident Management Corporation Inc., Hooters Inc., and Hooters of America LLC¹ (HOA), (in aggregate the “Entity Defendants”). The trial court determined it lacked personal jurisdiction over Cladakis and the Entity Defendants and dismissed Miller's suit. On appeal, we affirm dismissal of the Entity Defendants for lack of personal jurisdiction, but reverse and remand as to jurisdiction over Cladakis for Miller's alienation-of-affection claim. Additionally, we find error in the trial court's imposition of Cladakis's costs and attorneys' fees under the Litigation Accountability Act.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Miller and John Daly, residents of Tennessee, were married on July 29, 2001, in Tennessee. They divorced on February 19, 2010. Miller filed her initial complaint in the DeSoto County Circuit Court on February 25, 2011, alleging that Cladakis's improper conduct and contact with Daly was the proximate cause of Miller and Daly's separation and eventual divorce. Further, the alleged improper contact, consisting of cell phone calls, text messages, and sexual encounters occurred between Daly and Cladakis, a Florida resident who was temporarily located in DeSoto County. Miller's complaint also alleged that Cladakis interfered with Miller's home in Tennessee by having her utilities shut off, interfered with the divorce proceedings in Tennessee from Daly, and interfered with the care and visitation/custodial rights of Miller and Daly's son. The complaint alleged Cladakis's interferences intentionally inflicted emotional distress upon Miller. Additionally, Miller alleged that the Entity Defendants were negligent in their supervision, training, retention, and hiring of Cladakis because they knew that Cladakis was having improper contact with Daly and that Cladakis's conduct was intentionally inflicting emotional distress upon Miller. Therefore, Miller claimed the Entity Defendants were jointly and severally liable for damages Miller suffered, including:

[L]oss of her marital estate including property; loss of society, companionship, love, and affection; loss of aide, services, and physical assistance; loss of sexual relations; loss of participation together in activities, duties, and responsibilities of making a home; past and future mental distress; and any other damages proven to have proximately result[ed] from the conduct of ... Cladakis and/or [the Entity Defendants].

¶ 3. Also on February 25, 2011, Miller filed two subpoenas duces tecum on Verizon Wireless, without notice to Cladakis or the Entity Defendants, requesting the phone and text message records of Cladakis and Daly from February 1, 2007, through February 25, 2011. Miller then filed another subpoena duces tecum on March 2, 2011, requesting privileged documents from Daly's attorneys, including invoices for Daly, memorandums of telephone conversations with Cladakis, emails to and from Cladakis, and text messages to and from Cladakis. On March 15, 2011, Cladakis filed a notice of special appearance and a motion to quash the subpoena duces tecum requesting her cell phone records. ²

In the motion to quash, Cladakis asserted that she was “making a special appearance ... without waiving any substantive or procedural rights.” Further, Cladakis asserted that she intended to “file a motion to dismiss the complaint filed against her, as [the circuit c]ourt lack [ed] personal jurisdiction and subject matter jurisdiction.” Miller filed her first amended complaint on March 15, 2011, which was essentially identical to her original complaint.

¶ 4. Miller sought to have Cladakis's motion to quash stricken because it contained the names of two attorneys not licensed in Mississippi or admitted pro hac vice. She also responded to the motion to quash by asserting that the trial court had jurisdiction of the case because the tort was conducted in whole or in part in Mississippi, and the cell phone records were necessary as proof of her alienation-of-affection claim. In response, Cladakis filed an amended notice of special appearance, which removed the names of the two attorneys not licensed in Mississippi and kept the name and signature of the attorney licensed in Mississippi. She also filed an amended motion to quash the subpoena duces tecum, which also removed the names of the two attorneys not licensed in Mississippi and left the licensed attorney.

¶ 5. Then, on March 31, 2011, Cladakis filed a notice of removal to federal court. The United Stated District Court for the Northern District of Mississippi entered an order on February 6, 2012, remanding the case to state court because all the defendants failed to consent to removal within thirty days, and Miller “did not waive her right to object to removal and has timely moved for remand.” The federal court mailed a certified copy of the remand order to the state court on February 16, 2012.

¶ 6. HOA filed its motion to dismiss on February 15, 2012. One argument raised in its motion to dismiss was the trial court's lack of personal jurisdiction. The same day, HOA submitted the affidavit of Doug White, vice president of human resources for HOA, in which he states that HOA is a Georgia corporation with its principal place of business in Georgia, does not do any business in the state of Mississippi, and never employed Cladakis. Miller, however, submitted a UCC filing that seems to indicate HOA does do some business in Mississippi. The filing indicates HOA was the owner of a security system placed at 682 Goodman Road in Horn Lake, Mississippi. Miller also filed a business card for a Hooters restaurant on Goodman Road in Horn Lake, Mississippi, which referenced HOA.

¶ 7. The following day, HOA filed its answer to Miller's complaint, again asserting the trial court lacked personal jurisdiction. In her answer to the complaint and a separate motion to dismiss, both filed on February 16, 2012, Cladakis asserted that Miller's complaint should be dismissed for several reasons, including the trial court's lack of personal jurisdiction over her. Also on February 16, 2012, the remaining Entity Defendants filed their motions to dismiss, likewise claiming, among other things, that the trial court lacked personal jurisdiction.

¶ 8. On February 27, 2012, Miller moved to file a second amended complaint, which would have given two specific dates of the alleged sexual and/or improper conduct, “inter alia, January 1, 2007, and April 13, 2008.” All of the defendants opposed Miller's motion to amend her complaint, via a joint motion filed on March 9, 2012.

¶ 9. On April 20, 2012, several amended affidavits were filed by Hooters Inc., Provident, and Provident Management Corporation. Hooters Inc. filed the affidavit of Neil G. Kiefer, President of Hooters Inc., stating that Hooter's Inc. is a Florida corporation, doing business in Florida, and does not do business in Mississippi. Hooter's Inc. never employed or paid Cladakis. It is a separate company from the other Entity Defendants. As to the other defendants, Provident filed the affidavit of Wilson F. Williams, vice president and chief financial officer, stating that Provident (a Florida corporation) hired Cladakis, but only to do marketing work for the corporation in Florida, not Mississippi. The affidavit further states that the company never sent Cladakis to Mississippi, and only does marketing and advertising for Hooters restaurants in Florida, New York, and Illinois. Provident employees are paid under Provident Management Corporation, a Florida corporation.

¶ 10. The trial court heard arguments on a variety of motions from Miller, Cladakis, and the Entity Defendants on April 23, 2012. On May 15, 2012, the trial court granted the defendants' motions to dismiss for lack of personal jurisdiction. The court found that while Mississippi's long-arm statute applied for Miller's allegations that the defendants committed a tort in whole or in part in Mississippi, Miller did not establish sufficient minimum contacts with Mississippi to satisfy due process. Further, the trial court found even if minimum contacts were established, “forcing the Defendants to litigate this matter in Mississippi would offend traditional notions of fair play and substantial justice.” By separate order filed the same day, the trial court denied Miller's request to amend her complaint because it determined that it lacked personal jurisdiction over Cladakis and the Entity Defendants.

¶ 11. Following the trial court's dismissal of her complaint, Miller timely filed a motion to alter or amend the judgment dismissing Cladakis and the Entity Defendants. While Miller's motion to amend was pending, Cladakis filed a motion for an award of costs and attorneys' fees pursuant to the Litigation Accountability Act codified in Mississippi Code Annotated sections 11–55–1 through–15 (Rev. 2012), which she had raised in her answer. The trial court denied Miller's motions to alter or amend as to the...