Patriot Commercial Leasing Co. v. Jerry Enis Motors, Inc. d/b/a Magnolia Chevrolet-Buick-Pontiac
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2005-CA-01119-SCT
PATRIOT COMMERCIAL LEASING CO.
v.
JERRY ENIS MOTORS, INC. d/b/a MAGNOLIA
CHEVROLET-BUICK-PONTIAC
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
04/29/2005
HON. PAUL S. FUNDERBURK
MONROE COUNTY CIRCUIT COURT
SCOTT W. HUNTER
WALTER MICHAEL GILLION
MICHAEL DAVIS JONAS
CANDACE COOPER BLALOCK
CIVIL - CONTRACT
AFFIRMED - 05/11/2006
BEFORE SMITH, C.J., EASLEY AND GRAVES, JJ.
EASLEY, JUSTICE, FOR THE COURT:
PROCEDURAL HISTORY
¶1.
Patriot Commercial Leasing Co. (Patriot) sought to enroll a foreign judgment against
Jerry Enis Motors, Inc., (Enis) obtained in the Court of Common Pleas in Montgomery
County, Pennsylvania, styled Patriot Commercial Leasing Co. v. Jerry Enis Motors, Inc.,
d/b/a Magnolia Chevrolet-Buick-Pontiac, case number 03-14790. On July 7, 2004, Patriot
filed a notice of filing in the Circuit Court of Monroe County, Mississippi, attached with the
authenticated foreign judgment and affidavit. The attached certified foreign judgment
indicated a judgment “in the amount of $51,603.39, in favor of the Plaintiff, PATRIOT
COMMERCIAL LEASING CO., and against the Defendant, MAGNOLIA CHEVROLETBUICK-PONTIAC, a/k/a JERRY ENIS MOTORS, INC.”
¶2.
The record also reflects that attached to the judgment is a certified copy of a praecipe
to enter default judgment, styled Patriot Commercial Leasing Co. v. Jerry Enis Motors, Inc.
d/b/a Magnolia Chevrolet-Buick-Pontiac, case number 03-14790, filed by Patriot’s
attorneys, Robert E. Walton and Robert R. Watson, Jr., with the Prothonotary, Court of
Common Pleas, Montgomery County, Pennsylvania, which assessed damages as follows:
Accelerated debt
$38,756.25
Interest from May 22, 2003
($38,765.25 x .18 x 123/365 days)
$2[,]350.86
Subtotal
$41,107.11
25% attorney’s fee per Complaint
$10,276.78
Actual Costs (filing fee)
$ 219.50
________________________________________________
Total:
$51,603.39
¶3.
Scott W. Hunter, Patriot’s attorney licensed in Mississippi, provided the affidavit
attached to the foreign judgment pursuant to Miss. Code Ann. § 11-7-305. The affidavit
provided: (1) “Patriot Commercial Leasing Co. filed a lawsuit against Jerry Enis Motors,
Inc., in the Court of Common Pleas in Montgomery County, Pennsylvania, case no. 0314790" and (2) “[o]n September 24, 2003, judgment was entered against Defendant in favor
of Plaintiff in the case, in the amount of $51,603.39.”
2
¶4.
Enis filed a motion to strike the affidavit of Patriot’s counsel and noticed hearing on
the motion. Patriot responded to the motion to strike the affidavit. On July 21, 2004, Enis
filed a motion to dismiss Patriot’s efforts to enroll the foreign judgment. Enis’s motion to
dismiss provided Patriot obtained the foreign judgment without securing jurisdiction over
Enis. On July 21, 2004, Enis filed a memorandum of authorities and an argument with
attached exhibits in support of the motion to dismiss.
¶5.
On July 28, 2004, the trial court sua sponte ordered that Enis had twenty days to file
an amended motion setting forth all of its intended defenses to the enrollment of the foreign
judgment. Patriot was ordered to file any response which it deemed necessary to the
amended motion within the following twenty days. The trial court ordered, “thereafter, either
party may present such other relevant evidence to the Court at a hearing on the amended
motion that will be set on application by either party.”
¶6.
Enis filed a motion seeking leave from the trial court to file a third-party complaint
against Wayne Lemons (Lemons). Enis filed the third-party complaint against Lemons.
Lemons filed a response to Enis’s third-party complaint.
¶7.
Patriot filed its supplemental response to Enis’s motion to dismiss. Enis subsequently
filed its reply to Patriot’s supplemental response. Patriot then filed a response to Enis’s
reply. A hearing was set and noticed on Enis’s motion to dismiss. The trial court continued
the hearing in order to grant the parties additional time to submit any affidavits or other
documentary evidence and to allow Enis leave to depose Lemons and submit the transcript
3
of the deposition. The trial court ordered that the parties had thirty days to submit the items
stated, after which, the trial court would enter its ruling on the issues presented by the
pleadings and proof.
¶8.
Enis filed its submission of final affidavit and accompanying argument. Upon
receiving a transcript of Lemons’s deposition, Enis submitted the deposition to the trial court.
Patriot subsequently submitted its response to Enis’s submission of final affidavit and
accompanying argument. The trial court entered its order granting Enis’s motion to dismiss.
The trial court stated:
Having reviewed and considered the pleadings, all evidentiary matters before
the Court, authorities of law submitted by, and arguments of counsel, the Court
is of the opinion, and so finds, that the rendering court in this case, The Court
of Common Pleas in Montgomery County, Pennsylvania, in civil action
number 03-14790, did not have personal jurisdiction over the Defendant (Enis)
and, therefore, the judgment of the foreign court is not entitled to full faith and
credit in this State.
FACTS 1
¶9.
Jerry Enis (Jerry) formed Jerry Enis Motors, Inc., (Enis) in 1980 as a Mississippi
corporation. Jerry was the corporation’s principal stockholder, a director, the president of
the board of directors, president and chief executive officer of the corporation, and the sole
and only registered agent of the corporation to accept service of process on the corporation.
Enis ceased to operate the dealership on June 3, 2002. The dealership was sold to Magnolia
1
At times, the parties’ full names may be used through out the opinion to provide
clarity.
4
Automotive Management, Inc. (Magnolia), a Mississippi corporation. However, Magnolia
did not have a GM dealership number required to purchase new GM vehicles. Enis entered
a management agreement with Magnolia and Lemons to allow Magnolia to use its GM
dealership number to order new vehicles until Magnolia was approved by GM as a
dealership. When Magnolia was approved by GM, the sale of the dealership would be
concluded.
¶10.
On June 3, 2002, Lemons and Magnolia entered into a management agreement with
Enis to undertake the management of Enis’s dealership upon the terms and conditions stated
in the management agreement. (As it relates to the discussion of the management agreement,
Lemons and Magnolia will be referred to collectively as Magnolia-Lemons.) MagnoliaLemons was to provide its own operating capital and not cause Enis to fall into default with
the new car manufacturers or with any floor plan financier or other vendor or party. The
revenues produced and the net profits and/or losses from the operation of the dealership from
and after June 3, 2002, belonged to Magnolia-Lemons.
¶11.
Pursuant to the terms of the agreement, Magnolia-Lemons was obligated to pay any
and all operational expenses of the dealership incurred on or after June 3, 2002, of whatever
nature, including but not limited to, floor plan interest, salaries, wages, utility bills, insurance,
professional fees, advertising, taxes, rents, leases on equipment and property, the cost of all
vehicles, parts and accessories and all other expenses whether of a general, sales or
administrative nature which are incurred by Magnolia-Lemons. Enis exercised no authority
5
over the operation of Magnolia-Lemons. Magnolia-Lemons made all hiring and firing
decisions and was responsible for all operating costs.
¶12.
During the term of the contract, Magnolia-Lemons was only authorized to order all
parts and new cars through Enis’s dealership number, and Magnolia-Lemons was fully
authorized and empowered to use the said dealership number for these purposes as if it
belonged to Magnolia-Lemons. The agreement provided that the stated use of the dealership
number was the only legitimate business use authorized. In Lemons’s deposition, he testified
that Magnolia’s only legitimate business use of Enis’s name was to deal with GM and buy
new cars and parts.
The agreement stated upon the close of the sale of the assets the
agreement shall cease and terminate and shall become null and void.
¶13.
On January 10, 2003, a software lease application was generated that would upgrade
other software equipment already under lease to Magnolia and incorporated Magnolia’s
outstanding debt on its old software application.2
The lease agreement was between
Magnolia Chevrolet Buick Pontiac and Patriot Commercial Leasing Company. The record
does not reflect that Enis ever had any contact with Patriot or had ever previously purchased
any software from Patriot. The software lease was executed by Brian Vonderkeide on behalf
of Magnolia. Vonderkeide was an employee and twenty-percent owner of Magnolia. Enis
was not mentioned in the lease, and Vonderkeide had no connection to Enis. The lease
2
Lemons testified in his deposition that to his knowledge his corporation,
Magnolia, did not have an outstanding debt or existing lease with Patriot for software in his
Nissan dealership or any of the other businesses.
6
agreement provided that Magnolia would submit to the jurisdiction of the Pennsylvania
courts in the event of a dispute.
¶14.
On January 15, 2003, Derek Hollingsworth, another employee and ten-percent owner
of Magnolia, executed an addendum to the lease agreement for auto loan 2000 software to
change the lessee from Magnolia to Enis as the lessee of the software. No reason is provided
in the record for executing the addendum. The addendum stated, “[t]he lease and all other
documents given in conjunction therewith shall now read: JERRY-ENIS MOTORS, INC.”
Enis and Lemons both maintained that Hollingsworth had no authority to list Enis in the
addendum. Lemons testified in his deposition that neither Vonderkeide nor Hollingsworth
had any connection to Enis and both lacked authority to enter any lease agreement on behalf
of Magnolia. Jerry’s signature is not anywhere on the addendum to change the lessee from
Magnolia to Enis.
Likewise, Lemons’s signature is nowhere on the addendum. No
documentation to support a change in the name of the lessee was attached to the form.
Furthermore, no correspondence is contained in the record from Patriot inquiring about the
change in the name of the lessee.
¶15.
On February 14, 2003, Enis and Magnolia entered into a closing agreement for the
sale of Enis’s assets to Magnolia.3 The closing agreement stated that Magnolia had obtained
dealership approval from GM. As such, the agreement allowing use of Enis’s dealership
3
Unlike the management agreement, the closing agreement did not reference
Lemons, only Magnolia. As such, the name Magnolia will be used.
7
number terminated on February 14, 2003, and Magnolia no longer needed to use Enis’s
dealership number.4 The sale of Enis to Magnolia on June 3, 2002, was finalized on
February 14, 2003, in the closing agreement.
¶16.
The record does not reflect when Patriot filed its complaint in Pennsylvania, nor does
it contain a copy of Patriot’s complaint in Pennsylvania. However, the disputed service of
process occurred on August 18, 2003. The record does not reflect that the process server was
ever deposed or provided an affidavit in connection with the proceedings at hand. The record
contains only a copy of an affidavit of service upon “Defendant, Jerry Enis Motors, Inc. d/b/a
Magnolia Chevrolet-Buick-Pontiac” dated August 20, 2003.
¶17.
The process server, whose name appears to be Herb Wells, stated that on August 18,
2003, he effected “personal service to [sic] Wayne Lemons co-owner at 2:30 p[.]m[.]” The
copy of the affidavit of service in the record does not contain any more information as to the
process server. From this limited information, Patriot’s attorney in Pennsylvania, Robert E.
Walton, somehow provided an affidavit in which he stated:
Enis was personally served with a copy of the Complaint filed in this matter
on August 18, 2003 by way of a process server handing a copy of the
Complaint to Wayne Lemons who represented himself to be a co-owner of
Enis and an authorized representative to accept service, which service satisfies
the Pennsylvania Rules of Court for Personal Service of original process.
4
Magnolia-Lemons had use of Enis’s GM dealership number from June 3, 2002,
until February 14, 2003.
8
However, Lemons’s testimony disputes the assertion that he represented himself to be a coowner of Enis authorized to accept process on Enis.
¶18.
Lemons testified in his deposition that at the time he was served he was definitively
not at Jerry Enis Motors’ place of business. Lemons testified if he was served at the
dealership, then it was at the dealership of Magnolia, not Enis. Lemons did not recall telling
the process server that he was a co-owner. However, if he did, it was the co-owner of
Magnolia, not Enis. Lemons testified in his deposition that he was never at any time a
co-owner of Enis.
¶19.
A printout in the record from the Mississippi Secretary of State lists the registered
agent of Jerry Enis Motors, Inc., as Jerry Enis. Prior to June 3, 2002, Enis had been a
General Motors (GM) dealership operating at 317 Highway 45 North, Aberdeen, Mississippi.
Likewise, a printout in the record from the Mississippi Secretary of State lists Lemons, a coowner of Magnolia, as the sole registered agent for Magnolia. Neither Wayne Lemons nor
Magnolia Automotive Management, Inc., were ever a co-owner of Jerry Enis Motors, Inc.
Likewise, neither Jerry Enis nor Jerry Enis Motors, Inc., were ever a co-owner of Magnolia
Automotive Management, Inc.
DISCUSSION
¶20.
Enrollment and enforcement of foreign judgments in Mississippi are governed by
statute. Miss. Code Ann. §§ 11-7-301-309; See Davis v. Davis, 558 So. 2d 814, 816 (Miss.
1990). In Davis, 558 So. 2d at 817, this Court held:
9
This State is required by the United States Constitution, Art. IV, Sec. 1, to give
full faith and credit to all final judgments of other states and federal courts
unless (1) “the foreign judgment itself was obtained as a result of some false
representation without which the judgment would not have been rendered”
Reeves Royalty Co., Ltd. v. ANB Pump Truck Service, 513 So. 2d 595, 598
(Miss. 1987), or (2) “the rendering court did not have jurisdiction over the
parties or the subject matter.” Sollitt v. Robertson, 544 So. 2d 1378 (Miss.
1989).
¶21.
The lack of jurisdiction over the parties is the primary limitation that tempers
application of full faith and credit of foreign judgements. Sollitt, 544 So. 2d at 1381;
Fauntleroy v. Lum, 210 U.S. 230, 237, 28 S. Ct. 641, 52 L. Ed. 1039, (1908) (want of
jurisdiction over the person or the subject matter might be shown to deny full faith and
credit).
¶22.
As a general rule, in order to determine the validity of a foreign judgement, we must
look to the law of the state that rendered the judgment. Lambert v. Lawson, 538 So. 2d 767,
769 (Miss. 1989). In Lambert, this Court stated:
[T]he full faith and credit clause applies only where the judgment of a
foreign state is founded upon adequate jurisdiction of the parties and
subject matter, Restatement 2nd, Conflict of Laws, §§ 104, 105, pp. 315-316
(1969); extrinsic evidence is admissible in a collateral attack upon a
foreign judgment to show that it is void, Restatement, Judgments, § 12, p.
69 (1942); and a judgment which is void is subject to collateral attack both in
the state in which it is rendered and in other states. Id. § 11, p. 65.
Id. (emphasis added). The standard of review for questions of law, such as questions
concerning personal jurisdiction of courts, is de novo. Syngenta Crop Protection, Inc. v.
Monsanto Co., 908 So. 2d 121, 124 (Miss. 2005); Starcher v. Byrne, 687 So. 2d 737, 739
(Miss. 1997) (“Our standard for review is de novo in passing on questions of law.”).
10
I.
¶23.
Agency-Apparent Authority
Enis argued to the trial court and on appeal that Patriot’s suit lacked personal
jurisdiction as Magnolia was not Enis’s agent, had no express or contractual authority to bind
Enis to the software lease as its agent, nor did Magnolia have apparent authority to bind Enis.
Enis maintained that no principal-agent relationship of any kind existed. As such, Enis
claims the wrong party was named in the lawsuit.
¶24.
Enis contended that on June 3, 2002, Lemons and Magnolia entered into a
management agreement with Enis to undertake the management of Enis’s dealership upon
the terms and conditions stated in the management agreement. The actual contract or
agreement specified that Magnolia-Lemons was only authorized to use Enis’s dealership
number to purchase vehicles and parts from GM until it obtained its own dealership number.
This was done to facilitate the sale of the dealership. Pursuant to the terms of the agreement,
Magnolia-Lemons was obligated to pay any and all operational expenses of the dealership
incurred on or after June 3, 2002, of whatever nature, including but not limited to, leases on
equipment and property, which are incurred by Magnolia-Lemons. Enis exercised no
authority over Magnolia-Lemons’s operations.
¶25.
On February 14, 2003, Enis and Magnolia entered into a closing agreement to finalize
the sale of Enis’s assets to Magnolia. Magnolia had obtained its own GM dealership number.
The agreement allowing use of Enis’s dealership number terminated on February 14, 2003.
On August 18, 2003, Patriot served Wayne Lemons with process in Patriot Commercial
11
Leasing Co. v. Jerry Enis Motors, Inc., d/b/a Magnolia Chevrolet-Buick-Pontiac, case
number 03-14790, in the Court of Common Pleas in Montgomery County, Pennsylvania.
¶26.
Patriot argued at trial and on appeal that Magnolia had apparent authority as Enis’s
agent to bind Enis, the principal, to the software lease agreement. Patriot argued it relied, to
its detriment, on Magnolia’s apparent authority to bind Enis to the software lease agreement.
As such, Patriot contends personal jurisdiction existed and the trial court erred in finding lack
of personal jurisdiction.
¶27.
The trial court in its bench opinion did not specifically address agency. However,
Patriot made its agency argument in support of jurisdiction to the trial court, and Enis
defended the assertion. The trial court determined Patriot did not have personal jurisdiction
over the Defendant, Enis, and, therefore, the judgment of the foreign court was not entitled
to full faith and credit in this State.
¶28.
On appeal, Patriot correctly contends that Pennsylvania’s use of apparent authority is
consistent with the laws of Mississippi regarding apparent authority under a theory of agency.
In Basile v. H & R Block, Inc., 563 Pa. 359, 761 A. 2d 1115, 1121 (2000), the Pennsylvania
Supreme Court held:
The special relationship arising from an agency agreement, with its
concomitant heightened duty, cannot arise from any and all actions, no
matter how trivial, arguably undertaken on another's behalf. Rather, the action
must be a matter of consequence or trust, such as the ability to actually bind
the principal or alter the principal's legal relations. Indeed, implicit in the
long-standing Pennsylvania requirement that the principal manifest an
intention that the agent act on the principal's behalf is the notion that the
agent has authority to alter the principal's relationships with third
12
parties, such as binding the principal to a contract. Notably, the Restatement,
which we have cited with approval in this area in the past, specifically
recognizes as much. See Restatement (Second) of Agency § 12 ("An agent or
apparent agent holds a power to alter the legal relations between the principal
and third persons and between the principal and himself.").
(Emphasis added).
¶29.
An agency relationship exists and a principal is bound by the acts of the agent as
against a third party where the agent had (1) express authority directly granted by the
principal to bind the principal as to certain matters, (2) implied authority to bind the principal
to those acts of the agent that are necessary, proper and usual in the exercise of the agent's
express authority, (3) apparent authority, i.e. authority that the principal has by words
or conduct held the alleged agent out as having, and (4) authority that the principal is
estopped to deny. See Bolus v. United Penn Bank, 363 Pa. Super. 247, 259, 525 A. 2d 1215,
1221 (1987), alloc. denied, 518 Pa. 627, 541 A. 2d 1138 (1988).
¶30.
While a third party cannot rely on the apparent authority of an agent to bind a
principal where he has actual knowledge of the limits of the agent's authority, without such
actual knowledge, the third party must exercise only reasonable diligence to ascertain the
agent's authority. Bolus, 525 A. 2d at 1222 (citing Fishman v. Davidson, 369 Pa. 39, 44, 85
A. 2d 34, 37 (1951)). Apparent authority is the “power to bind a principal which the
principal has not actually granted but which he leads persons with whom his agent deals to
believe that he has granted.” Revere Press, Inc. v. Blumberg, 431 Pa. 370, 375, 246 A. 2d
407, 410 (1968).
13
¶31.
Likewise, in Trident Corp. v. Reliance Ins. Co., 350 Pa. Super. 142, 504 A. 2d 285,
288 (Pa. Super. Ct. 1986), the Superior Court of Pennsylvania further defined apparent
authority as “the power to affect the legal relations of another person by transactions with
third persons, professedly as agent for the other, arising from and in accordance with the
other's manifestations to such third persons.” See also Sauers v. Pancoast Personnel, Inc.,
294 Pa. Super. 306, 309, 439 A. 2d 1214, 1215 (1982) (“Apparent authority exists when the
principal has led a third party into believing that the licensee was the principal's agent.”)
¶32.
In Travelers Cas. & Sur. Co. v. Castegnaro, 772 A. 2d 456, 460 (Pa. 2001), the
Supreme Court of Pennsylvania stated that the principal is liable to third parties for acts of
his agent. The Pennsylvania Supreme Court based the premise of liability upon the theory
that the principal who has placed the agent in a position of trust and confidence, rather than
an innocent stranger, should be the one to suffer the wrongful act of the third party. Id.
¶33.
Similarly in Mississippi, this Court, in Steen v. Andrews, 223 Miss. 694, 78 So. 2d
881, 883 (Miss. 1955), stated:
The power of an agent to bind his principal is not limited to the authority
actually conferred upon the agent, but the principal is bound if the conduct of
the principal is such that persons of reasonable prudence, ordinarily familiar
with business practices, dealing with the agent might rightfully believe the
agent to have the power he assumes to have. The agent's authority as to those
with whom he deals is what it reasonably appears to be. So far as third persons
are concerned, the apparent powers of an agent are his real powers. 2 C.J.S.,
Agency, §§ 95, 96.
¶34.
This Court stated the standard to be applied in reviewing whether apparent authority
existed as follows:
14
The finder of fact must determine whether there is sufficient evidence to meet
the three-pronged test for recovery under the theory of apparent
authority, which requires a showing of (1) acts or conduct of the principal
indicating the agent's authority, (2) reasonable reliance upon those acts by a
third person, and (3) a detrimental change in position by the third person as a
result of that reliance. Christian Methodist Episcopal Church v. S & S
Construction Co., Inc., 615 So. 2d 568, 573 (Miss. 1993); Alexander, 609 So.
2d at 403; Andrew Jackson, 566 So. 2d at 1181; Clow, 356 So. 2d at 582.
Once made, “[t]his finding will not be disturbed unless clearly contrary to the
overwhelming weight of credible evidence when viewed in the light most
favorable to the verdict.” CME Church, 615 So. 2d at 573, 574; Andrew
Jackson, 566 So. 2d at 1181.
Eaton v. Porter 645 So. 2d 1323, 1325-26 (Miss. 1994) (emphasis added). “There can be
no apparent authority to act where an agency relationship, either actual, expressed, or implied
does not exist.” XYOQUIP, Inc. v. Mims, 413 F. Supp. 962, 966 (N.D. Miss. 1976).
¶35.
Here, the record does not demonstrate Enis by his conduct or words held Magnolia-
Lemons out to be his agent to Patriot. Neither Jerry Enis nor Jerry Enis Motors, Inc., were
ever a co-owner of Magnolia Automotive Management, Inc. Enis ceased to operate the
dealership on June 3, 2002, and Enis entered a management agreement with Magnolia and
Lemons which allowed Magnolia to use its GM dealership number only to order new
vehicles and parts until Magnolia was approved by GM as a dealership. In Lemons’s
deposition, he testified that Magnolia’s only legitimate business use of Enis’s name was to
deal with GM and buy new cars and parts.
¶36.
The software lease that would upgrade other software equipment already under lease
to Magnolia was generated on January 10, 2003. According to the lease application, this
lease consolidated an outstanding debt Magnolia already had with Patriot. The lease
15
agreement was between Magnolia Chevrolet Buick Pontiac and Patriot Commercial Leasing
Company, not Enis and Patriot. Enis never undertook any representation or action with
Patriot to bind Enis to the lease. Likewise, Enis never represented to Patriot that Magnolia
had authority to bind Enis to the software lease. On February 14, 2003, Enis and Magnolia
entered into a closing agreement which finalized the sale of Enis’s assets to Magnolia. On
August 18, 2003, Patriot served Lemons with a complaint against Jerry Enis Motors, Inc.
d/b/a Magnolia Chevrolet Buick Pontiac.
¶37.
Based on the record, Enis undertook no conduct to represent to Patriot that it was the
lessee or that Magnolia-Lemons had any authority to bind it to a lease for software.
Furthernore, no documentation or correspondence was attached or produced that
demonstrated that Enis had assumed the lease.
Patriot appears to have blindly and
unjustifiably relied upon the addendum without any follow-up. The record does not reflect
that Enis, or Jerry Enis, were ever contacted regarding the lease. Likewise, Jerry Enis, owner
and registered agent of Enis, was never served with process. It is undisputed that by the time
Patriot served Lemons on August 18, 2003, for failure to make lease payments, Enis no
longer operated a dealership at that location. Enis never at any time assumed any ownership
interest in Magnolia Automotive Management, Inc., Magnolia-Lemons, or Magnolia
Chevrolet Buick Pontiac. Patriot allowed the lessee to just change the name of who should
be obligated for the lease. However, Patriot’s bad business decision to blindly change the
16
lessee name should not obligate Enis for Magnolia’s lease agreement. We find the trial court
did not err in granting Enis’s motion to dismiss for lack of personal jurisdiction.
II.
¶38.
Service of Process
Enis also argued at the trial court lack of personal jurisdiction challenging the
sufficiency of the service of process. Patriot contended at trial and argues on appeal that the
service of process on Jerry Enis properly conformed to the method allowed under
Pennsylvania. Enis counters on appeal that the service of process was fatally defective, and
as such, Patriot lacked personal jurisdiction over Enis. Patriot served Lemons on August 18,
2003, with process in Patriot Commercial Leasing Co. v. Jerry Enis Motors, Inc., d/b/a
Magnolia Chevrolet-Buick-Pontiac, case number 03-14790, filed in the Court of Common
Pleas in Montgomery County, Pennsylvania. Jerry Enis was not served.
¶39.
Patriot contends Enis was personally served with a copy of the complaint filed in this
matter on August 18, 2003, by way of a process server handing a copy of the complaint to
Lemons as a co-owner of Enis. Patriot argues the service of process on Lemons satisfied the
Pennsylvania Rules of Civil Procedure for personal service of process.
¶40.
"The rules relating to service of process must be strictly followed, and jurisdiction
of the court over the person of the defendant is dependent upon proper service having been
made...." Sharp v. Valley Forge Med. Ctr. and Heart Hosp., 422 Pa. 124, 221 A. 2d 185,
187 (1966) (emphasis added). Therefore, defective service of process results in failure to
17
acquire jurisdiction over the person or party. The Pennsylvania Rule of Civil Procedure 402
(a)(2)(iii) provides original process may be served as follows:
[B]y handing a copy
(iii) at any office or usual place of business of the defendant
to his agent or to the person for the time being in charge
thereof.
(Emphasis added).
¶41.
Proper service of process “upon a person in charge of a person's business” is effected
if there exists a “sufficient connection between the person served and the defendant to
demonstrate that service was reasonably calculated to give the defendant notice of the action
against it.” Cintas Corporation v. Lee's Cleaning Services, Inc., 549 Pa. 84, 700 A. 2d 915,
920 (1997); see also In re McElhatton, 729 A. 2d 163, 167 (Pa. Commw. Ct. 1999). The
decisive factor in determining whether an individual is “in charge of the place of business”
is whether there is a sufficient connection with the business. In re McElhatton, 729 A. 2d
at 167.
¶42.
According to a printout in the record, the Mississippi Secretary of State listed the
registered agent of Jerry Enis Motors, Inc., as Jerry Enis, not Wayne Lemons. Also, another
printout in the record from the Mississippi Secretary of State listed Wayne Lemons as the
sole registered agent for Magnolia Automotive Management, Inc. Neither Lemons nor
Magnolia were ever a co-owner of Jerry Enis Motors, Inc. Likewise, neither Jerry Enis nor
Jerry Enis Motors, Inc., were ever a co-owner of Magnolia. In his deposition, Lemons
18
testified that at the time he was served he was definitively not at Jerry Enis Motors’ place of
business. Lemons also testified that he never told the process server that he was a co-owner
of Enis.
¶43.
Enis and Magnolia entered into a closing agreement on February 14, 2003, for the sale
of Enis’s assets to Magnolia. This finalized the sale from Enis to Magnolia. Magnolia had
obtained its dealership number and no longer needed to use Enis’s to purchase vehicles.
Lemons was served with process on August 18, 2003, months after the closing of the sale
transpired. Enis no longer owned the property, and it was no longer Enis’s usual place of
business. The place of business now belonged to Lemons who was a co-owner of Magnolia,
not Enis. Enis never exercised any authority or control over Magnolia. Enis contends that
Lemons did not have authority from Enis, or a sufficient connection with Enis, to accept
process on behalf of Enis.
¶44.
We find the service of process was defective. Clearly, Enis was not properly served.
Pennsylvania law allows service by handing a copy of the summons and complaint at any
office or usual place of business of the defendant to his agent or to the person for the time
being in charge thereof. Enis no longer operated a dealership at that location. As such, it
was not Enis’s usual place of business, nor was Lemons at the time, or any time, in charge
of Enis’s business there. Lemons testified that he never informed the process server that he
was a co-owner of Enis. Pennsylvania law requires the rules relating to service of process
must be strictly followed in order to confer jurisdiction. Here, the rules of service were not
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strictly followed. Without proper service of process, Patriot lacked personal jurisdiction over
Enis. We find the trial court properly dismissed the action for lack of jurisdiction.
CONCLUSION
¶45.
For the foregoing reasons stated herein, the judgment of the Circuit Court of Monroe
County, Mississippi, is affirmed.
¶46.
AFFIRMED.
SMITH, C.J., WALLER, P.J., CARLSON, GRAVES, DICKINSON AND
RANDOLPH, JJ., CONCUR. COBB, P.J. AND DIAZ, J., NOT PARTICIPATING.
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