Richard v. Garma-Fernandez

121 So. 3d 929, 2013 WL 1114295, 2013 Miss. App. LEXIS 113
CourtCourt of Appeals of Mississippi
DecidedMarch 19, 2013
DocketNo. 2012-CA-00007-COA
StatusPublished
Cited by6 cases

This text of 121 So. 3d 929 (Richard v. Garma-Fernandez) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Richard v. Garma-Fernandez, 121 So. 3d 929, 2013 WL 1114295, 2013 Miss. App. LEXIS 113 (Mich. Ct. App. 2013).

Opinion

GRIFFIS, P.J.,

for the Court:

¶ 1. This case considers whether a Mississippi court obtained personal jurisdiction over an out-of-state defendant, who was not served with process, because an attorney filed pleadings on behalf of the defendant. The Chancery Court of Oktib-beha County answered this question in the affirmative. We find no error and affirm.

FACTS

¶ 2. Emilio Garma-Fernandez filed a lawsuit on June 16, 2009. The complaint named the following defendants: TAG Investments LLC, TAG State Theatre LLC, Doe’s of Starkville LLC, Starkville State Theatre LLC, Starkville Commercial Enterprises LLC, Timothy Garrett, John [931]*931Deahl, James F. Kennedy Jr., John Arnold Sr., and Gary Richards. There is an issue, which will be discussed later, as to the correct spelling of Richard’s name (correctly referred to hereinafter as “Richard”). Richard was identified as an adult resident citizen of Richmond, Virginia.

¶ 3. Garma-Fernandez’s complaint arose out of the commercial dealings of the parties. Several of the named defendants owned a bar and restaurant in Starkville, Mississippi. Garma-Fernandez was employed to manage the bar and restaurant. The complaint asserts that Richard, along with other defendants, had offered to buy the bar and restaurant. Garma-Fernandez alleges that he had a contractual relationship with each of the defendants. The complaint asserted claims for an accounting, imposition of a resulting trust and equitable ownership, injunction, breach of contract, tortuous interference with contract, anticipatory breach of contract, recovery of unlawful distributions, compensatory damages, punitive damages, and attorney’s fees.

¶ 4. The summons and complaint were served on several defendants. Richard was not personally served with a summons and complaint in accordance with Mississippi Rule of Civil Procedure 4. Some type of process was posted on Richard’s door in Virginia on June 30, 2009.

¶ 5. On July 7, 2009, Billie Jo White, a licensed Mississippi attorney, informed Garma-Fernandez’s counsel that she represented six defendants in the case. One of the defendants was Richard. Thereafter, Garma-Fernandez’s counsel sent all letters, pleadings, and notices to White and made no further attempt to serve Richard.

¶ 6. In July 2009, Garma-Fernandez had some conversations with Richard. Garma-Fernandez’s attorney told him to stop because Richard was represented by counsel. Garma-Fernandez said it was apparent from those conversations that Richard was aware of the lawsuit.

¶ 7. On September 24, 2009, White filed a responsive pleading entitled “Motion, Answers, Defenses and Counterclaims of Defendants Tag State Theater, LLC, Doe’s of Starkville, LLC, Starkville State Theater, LLC, Starkville Commercial Enterprises, LLC, James F. Kennedy, Jr., and Gary Richards.” In this nineteen-page responsive pleading, White referred to Richard throughout the pleading along with the other defendants that she represented. White did not claim to represent defendants TAG Investments LLC, Timothy Garrett, John Deahl, or John Arnold Sr.

¶ 8. Garma-Fernandez served discovery on Richard through White. White failed to respond to discovery requests. The court ordered that any evidence in the documents to be produced or interrogatories that had not been given to Garma-Fernandez was excluded and inadmissible at trial. The court also ruled that Richard’s counterclaim was dismissed with prejudice; the matters in the request for admissions against Richard were deemed admitted; and attorney’s fees were awarded to Garma-Fernandez.

¶ 9. On September 28, 2010, Garma-Fernandez filed a motion for summary judgment. Garma-Fernandez also filed a motion for contempt and imposition of sanctions because White and Richard had not paid the previously ordered attorney’s fees.

¶ 10. On October 15, 2010, White filed a “Joint Motion for Extension of Time to Respond to Motion for Summary Judgment and Motion for Continuance.” This motion was filed only on behalf of Richard. White stated she had recently moved and started a new job. Because of this transi[932]*932tion, she had stored her files in a storage building. She stated that she could not locate Richard’s file. She also stated that she had not been able to notify Richard of the motion for summary judgment. She further stated she did not get notice of the hearing until September 29, 2010, just sixteen days prior to the hearing. Thus, she said that, because Richard is a Virginia resident, sixteen days was not enough time to make arrangements for him to appear at the hearing.

¶ 11. On November 9, 2010, the chancellor granted Garma-Fernandez summary judgment and entered a final judgment of $136,000, along with the earlier award of attorney’s fees of $1,267.50.

¶ 12. In May 2011, Garma-Fernandez began collection proceedings in Richmond, Virginia, against Richard. Richard retained counsel. In June 2011, Richard’s counsel filed a pleading in the Oktibbeha County Chancery Court entitled “Limited Appearance to Contest Jurisdiction” (“limited-appearance motion”) under Mississippi Rule of Civil Procedure 60. In this pleading, Richard claimed that he did not know White and had not been represented by her. He attached an affidavit that stated: (a) the facts contained in the limited-appearance motion were true; (b) he first learned of the litigation in April 2011; (c) his only contact with the State of Mississippi was as a member of Starkville Commercial Enterprises LLC; and (d) he never had a contract of employment with Garma-Fernandez or anyone else in Mississippi. Richard asked that the judgment against him be declared void.

¶ 13. A hearing on the limited-appearance motion was held on July 20, 2011. The chancellor accepted Richard’s affidavit as evidence, and Garma-Fernandez offered recordings of telephone conversations. Richard’s counsel asked that the hearing be continued.

¶ 14. Another hearing was held on September 28, 2011. Richard’s attorney announced that the only evidence he would offer would be Richard’s affidavit. Gar-ma-Fernandez testified about his conversations with Richard and White’s efforts on behalf of Richard. Two tape recordings were admitted into evidence.

¶ 15. On October 20, 2011, Richard filed an affidavit signed by White. White stated that she “listed Gary Richard as one of the defendants whom she represented but such listing was in error,” and “she does not now and has never represented Gary Richard or spoken to him or had any contact with him whatsoever.”

¶ 16. On November 18, 2011, the chancellor entered an “Order on Limited Appearance to Contest Jurisdiction.” The chancellor determined that White had filed an answer on behalf of Richard and other defendants; the answer did not raise a defense of lack of personal jurisdiction or insufficiency of service of process; and the answer waived these defenses through the participation in the legal proceeding up to trial and entry of judgment.

¶ 17. The chancellor noted flaws in Richard’s affidavit that undermined Richard’s credibility. For example, Richard claimed he did not know about the litigation until April 2011, yet the telephone conversations established that he was aware of the litigation. The chancellor determined that Richard was represented by White, and White accepted process on his behalf and entered an appearance for Richard. The chancellor rejected Richard’s argument that he was not represented by White, and found that White’s pleadings were contrary to her claim that she did not represent Richard.

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Bluebook (online)
121 So. 3d 929, 2013 WL 1114295, 2013 Miss. App. LEXIS 113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richard-v-garma-fernandez-missctapp-2013.