Penrod Drilling Co. v. Bounds, 53547

• Citation: 433 So.2d 916
• Decision Date: 11 May 1983
• Docket Number: No. 53547,53547
• Parties: PENROD DRILLING CO. v. Aubrey Wayne BOUNDS.
• Court: United States State Supreme Court of Mississippi

Page 916

433 So.2d 916

PENROD DRILLING CO. v. Aubrey Wayne BOUNDS.

No. 53547.

Supreme Court of Mississippi.

May 11, 1983.

Rushing & Guice, Robert Alan Byrd, Biloxi, Daniel A. Webb, New Orleans, La., for appellant.

Denton, Persons, Dornan & Bilbo, Donald C. Dornan, Jr., William L. Denton, Biloxi, for appellee.

En Banc.

HAWKINS, Justice, for the Court:

FACTS

Aubrey Wayne Bounds is a resident of Forrest County. Penrod Drilling Company As a result of his injuries Bounds had a cause of action against Penrod under 46 U.S.C.A. Sec. 688 (1976), the "Jones Act".

is a foreign corporation not qualified to do business in Mississippi, with principal offices in Dallas, Texas. On March 17, 1976, while he was employed by Penrod and working on a floating workover vessel off the coast of Louisiana, Bounds suffered serious personal injuries.

On December 22, 1978, Bounds filed a bill of complaint in the Chancery Court of Forrest County against Penrod under the "Jones Act", seeking money damages of $1,200,000. He based jurisdiction in the Forrest County Chancery Court by naming as "garnishee defendants" eight nationwide oil corporations, all of whom do business in this state and have registered agents for service of process. ¹ He alleged that each of these "garnishee defendants" was either indebted to Penrod or had property and effects of Penrod in its possession, and which were subject to attachment and garnishment. In addition to his claim for monetary damages against Penrod, Bounds also prayed that a "judgment lien" be impressed on all property attached of the garnishee defendants in order that the same might be sold for satisfaction of the money judgment against Penrod.

Pennzoil Company and Mobil Oil Corporation filed answers on January 16, 1979, denying both any indebtedness to Penrod and possession of any property belonging to Penrod.

On January 16, 1979, counsel for both Penrod and Bounds appeared before the chancery court and made oral motion to dismiss the action against all garnishee defendants. Pursuant to this motion counsel for both these parties signed and submitted to the court an agreed decree which was signed and entered that day by the court. This decree reads:

AGREED DECREE

Pursuant to the joint motion of Penrod Drilling Company, The Defendant in the above styled and numbered cause, and Aubrey Wayne Bounds, the Plaintiff, ore tenus, the said Penrod Drilling Company, having entered its appearance herein, to dismiss all Garnishee-Defendants as to Penrod Drilling Company, and there being no objection thereto by the Plaintiff, it appears unto the Court that said motion should be sustained as hereinafter set forth, and it is, therefore,

ORDERED, ADJUDGED AND DECREED that the aforesaid motion be, and is hereby, sustained and that the appearance of Penrod Drilling Company is hereby noted, with leave granted to said Defendant to file responsive pleadings to the Bill of Complaint and Attachment in Chancery filed by the Plaintiff, until on or before February 12, 1979, the next regular return date of said Court. It is further,

ORDERED, ADJUDGED AND DECREED that all of the said Garnishee (Attachment) Defendants, as to Penrod Drilling Company, herein including the following: Texaco, Inc., Gulf Oil Corporation, Exxon Corporation, Amoco Oil Company, Mobil Oil Corporation, Pennzoil Company, Ashland Oil, Inc. and Union Oil Company of California be, and said Garnishee (attachment) Defendants as herein named be, and hereby are, each and all discharged and dismissed as Garnishee (attachment) Defendants, as to Penrod Drilling Company, without necessity of any pleadings or appearances on their part, or on the part of any of them as to said Penrod Drilling Company; and that the Writs of Garnishment, (attachment) heretofore issued herein or requested to be issued herein as to each and all of the said Garnishee (attachment) Defendants are hereby dismissed as to the Defendant Penrod Drilling Company.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Defendant, Penrod Drilling Company, having covenanted and agreed accordingly Despite this agreed decree Amoco Oil Company filed an answer January 26, Texaco filed an answer February 13, and Ashland filed an answer February 16, 1979, all denying any indebtedness to Penrod or possession of any property or effects of Penrod in their possession.

will not remove or attempt to remove this action from this Court to any other Court, including the United States District Court in any district, but this shall not preclude Penrod challenging the jurisdiction of this Court as to subject matter of this action. (emphasis added)

Penrod filed its answer February 13, 1979. It attacked chancery court jurisdiction solely on the basis that the Mississippi attachment statutes, Mississippi Code Annotated sections 11-31-1 to -11 (1972), had been declared unconstitutional. It made no specific allegation that the chancery court lacked attachment jurisdiction because none of the garnishee defendants was indebted to Penrod or had property belonging to Penrod in its possession when suit was filed. The answer contained a general denial of the allegations of the complaint against Penrod, and was under oath. No separate motion to dismiss, or to transfer the cause to a law court, was filed with the answer. ²

Interrogatories were filed both by Bounds and Penrod, and in due course these were answered by each.

On April 21, 1980, Penrod filed a motion to dismiss, as follows:

MOTION TO DISMISS

Comes now the Defendant, Penrod Drilling Company, by and through its attorneys, Rushing and Guice, and moves the Court to dismiss the above styled and numbered cause without prejudice for lack of subject matter and jurisdiction.

WHEREFORE, Defendant prays that the above styled and numbered cause be dismissed without prejudice and all costs be taxed to the Plaintiff herein.

By order dated April 25, 1980, the court reserved ruling on this motion.

Trial was had before the chancery court on November 19-20, 1980.

At the conclusion of the trial, Penrod renewed its motion to dismiss, and submitted a brief. The brief relates that in the answer of Penrod to the bill of complaint the basis of its claim of lack of subject matter jurisdiction was that the attachment statutes were unconstitutional. The entire thrust of the brief is that Bounds' sole claim against Penrod was a suit in tort for personal injuries under the Jones Act, and since the attachment statutes were unconstitutional, the chancery court lacked "subject matter" jurisdiction. It alleged subject matter jurisdiction was in a circuit court. Penrod conceded that state courts, as well as federal courts, had subject matter jurisdiction to hear causes predicated under the Jones Act, but contended the case should be in a circuit court.

Penrod supported its argument on the unconstitutionality of the attachment statutes with two cases decided by United States district courts of this state: Mississippi Chemical Corp. v. Chemical Construction Corp., 444 F.Supp. 925 (S.D.Miss.1977); and M.P.I. v. McCullough, 463 F.Supp. 887 (N.D.Miss.1978).

The chancellor in a lengthy opinion reviewed the chronology of this case and the two United States District Court cases cited by Penrod, and then held the factors in those cases were absent in this case because no property or funds had ever been attached. Indeed, prior to the attachment issue ever being reached Penrod and Bounds submitted a consent decree to the chancery court.

The chancellor's opinion merits quotation:

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The Court finds that the factors upon which the District Court relied in Mississippi Chemical Corp., are not applicable to this case. While it is true that the attachment sub judice was invoked at the discretion of the Complainant's counsel and that no bond was posted, by the same token, Penrod was not required to post any bond to dissolve the attachment, the same having been done by its voluntary agreement in the form of the Order which dismissed the garnishee-defendants. After this had been done, the Court finds that there was no necessity for review by a disinterested judicial officer or for a post procedure hearing, inasmuch as the attachments had by then been dissolved.

The most important factor which caused the Court in Mississippi Chemical to make its holding was the fact that substantial sums of money belonging to Chemico were bound in the hands of third parties, without notice. The Court held that this constituted a deprivation of property without due process. The Court considers this to be the most important factor which distinguishes the case at bar with Mississippi Chemical. In Mississippi Chemical, large sums of money belonging to the Defendant were bound. In the case now under consideration, no funds belonging to Penrod were ever bound in the hands of the garnishee-defendants. This fact is uncontradicted in the record and is evidenced by the sworn Answers by the garnishee-defendants. The Court finds that the underlying reasons which the Mississippi Chemical Court relied upon to invalidate the attachment procedure are not applicable here. For instance, there was no showing that the attachments were wrongfully or mistakenly used. In this regard, the Court finds that Penrod was a true nonresident of the State of Mississippi at the time of the filing of the Bill of Complaint. Further, there is no question about the binding of any sums which resulted from contracts entered into outside the State of Mississippi because no sums were ever bound.

The Court further finds that there was no evidence of coercion or intimidation offered which may have required the Defendant to make a personal appearance in this case. Nor can such coercion be presumed by the Court. There was no requirement that Penrod enter its appearance and if it did not intend litigate this matter before this Court, the Defendant could have simply done nothing and required the Complainant to contest the validity of each...