Petition for Writ of Certiorari — Gross v. Chevrolet Country, Inc.

—~

\ Supreme Court, U.S.

j FILED

No. BB 8 27 SEP 20 1995

QEFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1995

DAVID B. GROSS

Petitioner,

V.

CHEVROLET COUNTRY, INC.

Respondent

On Petition For Writ Of Certiorari

To The Supreme Court of the

State of Mississippi

PETITION FOR WRIT OF CERTIORARI

David B. Gross

Post Office Drawer 22989

Jackson, Mississippi 39225-2989

Telephone: (601) 355-0355

Telecopier: (601) 353-6235

Mississippi Bar No. 5042

Petitioner

QUESTION PRESENTED

Whether, consistently with the Due Process Clause

of the Fourteenth Amendment, and pursuant to a

Mississippi long arm statute that provides that a

nonresident corporation not qualified to do business in

Mississippi that commits a tort in whole or in part in

Mississippi is deemed to be doing business in Mississippi, a

Mississippi court may exercise in personam jurisdiction over

a nonresident (Texas) automobile agency of a national

automobile company (General Motors) involving negligent

repairs made in Texas by the nonresident automobile

agency on a vehicle owned by a resident of Mississippi

which resulted in damages occurring in Mississippi and

where the nonresident automobile agency knew at the time

the negligent repairs were made that the vehicle belonged

to a Mississippi resident and that the Mississippi resident

was going to immediately take the repaired vehicle back to

Mississippi where the resulting damages occurred.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .occcccccscssvctovescevess i

FARLE GP Cae + 0:0 0:8 conned wecvevesen seas ii

TABLE GP AUFIREETD cvccccecvenscetatsseuns iv

CITATION OF OPINIONS BELOW ............-+06- 1

FEF EMD 6 occ cchrceceenetsemetiareseten ene 1

CONSTITUTIONAL AND STATUTORY PRO-

VIR VON co vcaceSrasesictesetereeiens 2

STATEMENT OF THE CASE. 2.05 cceccccuccsevceoess 3

REASONS FOR GRANTING CERTIORARI .......... 11

I. THE CONSTITUTIONAL RIGHT OF DUE

PROCESS HAS BEEN DENIED PETITIONER

BY THE SUPREME COURT OF MISSISSIPPI,

IN A MANNER WHICH IS SO FAR FROM

THE ACCEPTED AND USUAL COURSE OF

JUDICIAL PROCEEDINGS AS TO CALL

FOR AN EXERCISE OF THE SUPREME

COURT’S SUPERVISORY POWER ........... 11

II. THE MISSISSIPPI SUPREME COURT, THE

STATE COURT OF LAST RESORT, HAS

DECIDED AN IMPORTANT FEDERAL

QUESTION IN A WAY THAT CONFLICTS

WITH THE DECISIONS OF THE UNITED

STATES COURT OF APPEALS FOR THE

PEP TEE GEIGMEE cccccccssceduedecastenuces 12

ill

Ill. THIS IS A CASE OF FIRST IMPRESSION

FOR THE SUPREME COURT IN THAT IT

INVOLVES AN AUTOMOBILE DEALER’S

TORT OF NEGLIGENT REPAIRS

DAMAGING IN HIS OWN STATE A

RESIDENT OF ANOTHER STATE. THE

SUPREME COURT OF MISSISSIPPI HAS

DECIDED AN IMPORTANT QUESTION OF

FEDERAL LAW THAT HAS NOT BEEN, BUT

SHOULD BE, SETTLED BY THIS COURT .....

EE er ee eee eee ee

iv

TABLE OF AUTHORITIES

Page

Arrow Food Distributors. Inc. v. Love, 361 So.2d 324,

S27 (Rilss. IGTE) «0 coc cscvevcetovnscevesdevesess A-11

Asahi Metal Industry Co. v. Superior Court, 480 U. S. 102

(ISRF) cccccccccvcceventauceusceeveesenrers A-12

Brown v. Credit Center, Inc. 444 So.2d 358 (Miss. 1983) ...A-8

Brown v. Flowers 628 Fed. 2d 328, (Sth Cir. 1982) ........ 10

Burger King v. Rudzewicz, 471 U. S. 462 (1985) ......... A-12

CFF Creech v. Roberts, 908 F.2d 75 (6th Cir. 1990) ..... A-10

Frank v. Dore, 635 So.2d 1369 (Miss 1994)............. A-7

Gross v. Chevrolet Country, Inc., 655 So.2d 873

CREE, BE) ccc ovescvesecseveeekeeensctueaeecees 1

Hanson v. Denckla, 357 U.S. 235 (1958) ..........-2-. A-12

Hollingsworth v. Bovaird Supply Co., 465 So.2d 311

CER, TIGR) 0 0 ose nesehaes Pes ewebereNeiee sere A-11

Hults v. Tillman, 480 So.2d 1134 (Miss. 1985) ......... A-10

International Shoe Co. v. Washington, 326 U. S. 310

(IDE) cc cdsccnececuveservud enon be bee eevee. A-12

Lyle v. Mladinich, 584 So.2d 397, 398

CG. FEGES ko vb ewedensevasectvncsetst cepwiens A-7

Vv

TABLE OF AUTHORITIES - Continued

Mladinich v. Kohn, 250 Miss. 138, 147, 164 So.2d 785,

RTINE SLiriknWh svie tenets aletiredes coves. ~

Nationwide Mut. Ins. Co. v. Garrigo, 636 So.2d 658, 660

(Miss. 1994) ......-eeeeeeees Kt a PRES BORO RCS es © A-8

Pullman Palace-car Co. v. Lawrence, 74 Miss. 782,

22 So. 53 (1897) 2... cece cece cere rere ec eeeces A-16

Rittenhouse v. Mabry, 832 F.2d 1380, 1384

(Sth Cir. 1987) 2... cece cece eee eee eee ee eneceees 13

Sample v. Romine, 193 Miss 706, 8 So.2d 257,

MODIFIED, 193 Miss. 706, 10 So.2d 346 (1942) ..... A-10

Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 63

(Miss. 1988) .....- eee cece cere cree eee eeeeereees A-8

Smith v. Temco, Inc., 252 So. 2d 212

(Miss. 1971) .....- eee cee cece cree c reece eeeereees 8

Southern Pacific Transp. Co. v. Fox, 609 So.2d 357,

360, 360, n. 5 (Miss. 1992) .....-- eee ee reece eceeees 8

State Stove Manufacturing Co. v. Hodges, 189 So.2d 113

(Miss. 1966) ....-- eee ee cece rer eec eee eeceecces A-15

Thompson v. Chrysler Motors Corp. 755 F.2d 1162 (Sth

Cir. 1985) 0... ccc cccccccecccccccccvcccesssevces 12

Turner v. Johnson, 498 So.2d 389, 390

(Miss. 1986) .....-- ee ee cece e ec ee reece cerrccess A-8

Wilkinson v. Mercantile Nat. Bank, 529 So.2d 616, 618

(Miss. 1988) .....-- eee cece cree eee c eee eeercees A-12

———e

vi

TABLE OF AUTHORITIES - Continued

Worldto-Wide Volkswagen v. Woodson, 444 U. S. 246, 297

100 S.Ct. 559,567, 62 L.Ed.@d 490 (1980) ............ 10

The Constitution And Federal Statutes

U.S. CONST. anOee Fan Vc te Ek cd ba we Whee edn d ese sex 2

28 US.C. § 1257 no ccccdudewatowevanedes ep ceeeseees 2

State Statutes

Miss. Code Ann. § 13-3-57 (1972) .cccccscoccccccccens 2

Miss. Code Ann. § 79-1-27 (1972) .......2eeeeeeeees A-11

CITATION OF OPINIONS BELOW

The published opinion of the Supreme Court of

Mississippi is reported as David B. Gross v. Chevrolet Country, Inc.,

655 So.2d 873 (Miss. 1995) and is included in the Appendix to

the Petition, beginning at page A-1. The unpublished order

overruling petitioner’s motion for a rehearing dated June 22,

1995, is included in the Appendix, beginning at page B-1.

JURISDICTION

The Supreme Court of Mississippi overruled Petitioner’s

Motion for a Rehearing on June 22, 1995. See Appendix B-1.

Petitioner’s Petition for a Writ of Certiorari was mailed

on Septeraber 18, 1995, United States Mail, Postage prepaid and

was received by the Clerk of the Supreme Court of the United

States on September 20, 1995. The petition for a writ of

certiorari seeking review of a judgment of a lower state court of

last resort was timely filed with the Clerk within 90 days after

entry of the order denying discretionary review.

The Clerk of the Court returned petitioner’s brief with

instructions to make it comply with the Rules of the Court

effective October 2, 1995. This brief complies with said rules and

has been filed within the sixty (60) day period allowed by the

rules.

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourteenth Amendment to the Constitution of the

United States provides, in pertinent part:

...[N]Jor shall any State deprive any person of

life, liberty, or property, without due process

of law...

28 U.S.C. Sec. 1257 provides, in pertinent part:

(a) Final judgments or decrees rendered by the

highest court of a State in which a decision could

be had, may be reviewed by the Supreme Court

by writ of certiorari where the validity of a treaty

or statute of the United States is drawn in

qsestion or where the validity of a statute of any

State is drawn in question on the ground of its

being repugnant to the Constitution, treaties, or

laws of the United States, or where any title,

right, privilege, or immunity is specially set up or

claimed under the Constitution or the treaties or

statutes of, or any commission held or authority

exercised under, the United States.

Sec. 13-3-57 Mississippi Code of 1972, Ann. provides in

pertinent part:

Any nonresident person, firm, general or limited

partnership, or any foreign or other corporation

not qualified under the Constitution and laws of

this state as to doing business herein, who shall

make a contract with a resident of this state to be

3

performed in whole or in part by any party in this

state, or who shall commit a tort in whole or in

part in this state against a resident or nonresident

of this state, or who shall do any business or

perform any character of work or service in this

state, shall by such act or acts be deemed to be

doing business in Mississippi and shall thereby be

subjected to the jurisdiction of the courts of this

state.

ences oer

STATEMENT OF THE CASE

This is an appeal from a decision of the Supreme Court

of Mississippi denying the Petitioner, David B.Gross, a resident

of Mississippi, his constitutional right to bring suit in Mississippi

against the Respondent, Chevrolet Country, Inc.,a Texas General

Motors agency, for damages incurred in Mississippi but caused by

the negligence of Chevrolet Country in Texas.

The suit was clearly authorized by the tort prong of the

Mississippi long arm statute. Section 13-3-57, Miss. Code Ann.

(1972)

Any nonresident...corporation not

qualified...as to doing business

herein, who shall...commit a tort

in whole or in part in this state

against a resident...of this state,

..Shall by such act or acts be

deemed to be doing business in

Mississippi and shall thereby be

———

4

subjected to the jurisdiction of the

courts of this state... .

Petitioner, a resident of Jackson, Mississippi, had

difficulty with his GMC van while traveling in Austin, Texas. On

September 1, 1985, Petitioner had a wrecker tow his van to the

service department of respondent in Austin Texas. On September

4, 1985, respondent delivered the van back to Petitioner. The

fuel injection pump had been repaired, which required removing

the intake manifold from the van engine. The cost of the repairs

was $424.85.

On January 27, 1986, Appellant drove to his office in

Jackson, Mississippi, and at 6:00 p.m. tried to start the van to go

home. Unable to get the van started, he had the van towed to

Fowler-Buick, GMC, a Jackson, Mississippi, GM agency. On

February 4, 1986, Fowler returned the van to Appellant with a

statement for $4,723.85 for repairs.

The cause of the damage to the engine was a 3/8 inch nut

of the style and size of the nuts used on studs that hold the

intake manifold in place. The nut had been negligently left in the

air intake system by the agents and employees of Chevrolet

Country, Inc., on September 4, 1985.

The 3/8 inch nut was, at the time it was left in the air

intake system, too large to go through the opening created by the

intake valve when it was opened to permit air to enter the

cylinder. For some five months the 3/8 inch nut bounced up and

down inside the air intake manifold.

Finally, it was worn down in size to the point that it could

and did enter the cylinder, at which time it was caught between

5

the top of the piston and the air intake valve, causing the stem of

the air intake valve to bend and to lock the engine.

The negligence of the agents and employees of

respondent in allowing the nut to enter the air intake system of

petitioner’s van took place in Texas and was the beginning of the

tort. Five months later, in Jackson, Mississippi, the worn nut

entered the engine cylinder locking up the engine. The

negligence of leaving the nut in the engine took place in Austin,

Texas. The damages caused by leaving the nut in the air intake

system took place in the First Judicial District of Hinds County,

Jackson, Mississippi.

There was no possible way that anyone other than

Chevrolet Country could have been responsible for the nut in the

air intake system because of the unique engine cover over the

rear of the van’s engine which was not removed at any time after

the repairs by Chevrolet Country until the repairs for the damage

\ were made by Fowler Buick. The petitioner pled the doctrine of

res ipsa loquitur, which is applicable here. The radiator,

transmission, oil supply, battery, power steering and brake fluid

are all serviced from the front of petitioner’s van. The air

cleaner with access to the air intake manifold is at the rear of the

engine which is located in the cab of the van and is covered by a

huge engine cover which weighs approximately fifty pounds and

is held in place by four phillips bolts, two one-half inch metal

screws and two large clamps. The engine cover was not removed

from the time it was replaced by respondent after repairing the

fuel injection pump until it was removed by Fowler to make the

repairs caused by negligence of respondent.

Petitioner filed suit in the Circuit Court of Hinds County,

6

Mississippi.' The respondent filed a motion for summary

judgment alleging the absence of in personam jurisdiction. The

trial court granted the motion for summary judgment. On appeal

from the granting of the summary judgment, the Supreine Court

of Mississippi affirmed the granting of the summary judgment by

the trial court. Petitioner’s motion for a rehearing was overruled.

doing business herein, who shall...commita tort in

whole or in part in this state against a resident...of

this state, ...shall by such act or acts be deemed to

be doing business in Mississippi and shall thereby

be subjected to the jurisdiction of the courts of |

this state... .

.

Any nonresident...corporation not qualified...as to

.

THE MISSISSIPPI SUPREME COURT DECISION

In the opening sentence of its Conclusion, Gross y.

Chevrolet Country, Inc., 655 So. 2d 873, 879, the Supreme Court

of Mississippi held.

4

Fowler Buick and General Motors were also named as parties defendant.

Petitioner had Fowler check the van in anticipation of the trip to Texas and in

the process Fowler removed and replaced the engine cover. The engine cover

‘

7

To allow assertion of in personam

jurisdiction by our courts in this

instance would likely prompt

reciprocal action by other states

toward Mississippi citizens.

Emphasis supplied.

The Court saying that to allow petitioner to sue Chevrolet

Country, Inc., for its tort in Texas that resulted in damages to

petitioner in Mississippi would prompt the courts of other states

to assume jurisdiction when their citizens are damaged by

Chevrolet dealers in Mississippi.

The Mississippi Supreme Court cannot protect Mississippi

General Motor’s dealers from the consequences of their torts

committed on citizens of other states. It can and has taken away

from petitioner and has announced its intention to take away

from all Mississippi citizens their constitutional due process right

to sue for damages incurred in Mississippi caused by torts

committed against them by automobile dealers in other states.

To not "allow" petitioner to sue for damages in Mississippi

caused by a tort committed in Texas, the Mississippi Supreme

Court had to come up with a highly contrived and completely

erroneous decision. .

Petitioner stated a prima facie cause of action and for the

purposes of a motion for summary judgment and a determination

of jurisdiction should have been accepted as true. The

Mississippi Court could not follow accepted law because to do so

would "allow" petitioner to sue in Mississippi.

The Mississippi Court then held that the nexus

requirement of the doing business prong of the Mississippi long

8

arm statute was applicable when petitioner filed suit, even though

petitioner was proceeding under the tort prong of the statute,

citing Southern Pacific Transp. Co. v. Fox, 609, So. 2d 357, 360 N5

(Miss. 1992). Southern Pacific involved an accident that occurred

in Louisiana. The Court in Southern Pacific specifically held that

if the tort had been committed in whole or in part in Mississippi,

the Mississippi Court would have had jurisdiction. Southern

Pacific, 360 N4.

Using a completely erroneous reading of Southern Pacific,

the Mississippi Court then proceeded to judge the case sub judice

by the requirements of Mladinich v. Kohn, 250 Miss. 138, 148, 164

So. 2d 785, 790 (Miss. 1964).

Mladinich was decided prior to Chapter 320 laws of 1964

which amended the long arm statute by adding the contract and

tort prongs and did not require a doing business nexus for either.

Southern Pacific, 360 N4.

When the damages occurred in Jackson, Mississippi, the

respondent was doing business in Mississippi.

In Smith v. Temco, Inc., 252 So. 2d 212 (Miss. 1971), the

identical tort prong of the long arm statute was involved and the

Supreme Court of Mississippi held

The tort is not complete until the

injury occurs, and if the injury

occurs in this State, then, under

the amended statute, the tort is

committed, at least in part, in this

State, and personam jurisdiction

of the nonresident tort feasor is

9

conferred upon the Mississippi

tort.

In Temco, the defendant had no ties whatsoever with

Mississippi. Its defective heating unit was sold to an out-of-state

distributor who sold same to a contractor building an addition to

plaintiff's house. The defective heater caused the house to burn.

The Mississippi Supreme Court held that the state court had in

personam jurisdiction in a suit against Temco.

In our view, one of the

fundamental objects of the

Legislature in adopting the 1964

amendment was to extend the

personam jurisdiction of the

courts of this State to the

nonresident who may commit a

tort in this State, either in whole

or in part, to the injury of a

resident of the State so as to

provide a practical means for the

enforcement of rights accruing

under the products _ liability

doctrine.

The only question to be resolved under due process

analysis is whether it would be fair, just and reasonable to require

respondent to defend itself in Mississippi. There are many

factors to be considered.

Respondent caused the injury in Mississippi. Fair play

would not require petitioner to go to Austin, Texas to present a

cause of action for damages incurred in Mississippi and caused

by the respondent.

10

In Brown v. Flowers, Industries, Inc., et al., 688 F.2d 328,

(Sth Cir. 1982), Petition for Writ of Certiorari to the United

States Court of Appeals for the Fifth Circuit denied, March 7,

1983, 75 L.Ed 2d U.S. Supreme Court Reports 496, the sole

contact to Mississippi was a single tortious phone call placed by

Jerome Kralis from his office in Mentone, Indiana, to the United

States Attorney in Oxford, Mississippi, and the court reasoned

that the defendant would have to bring only one witness to

Mississippi, the person who made the phone call. In this case the

respondent would not have any witnesses. In response to

discovery, respondent indicated that the two mechanics who made

the repairs to petitioner’s van no longer worked for respondent

and their whereabouts are unknown.

Foreseeability is one of the tests set out in World-Wide

Volkswagen v. Woodson, 444 U. S. 246, 297, 100 S.Ct. 559,567, 62

L.Ed.@d 490 (1980). It is obvious that an automobile dealer can

foresee damages resulting from negligent repairs. Being sued in

the damaged customer’s residence would be only a mild

inconvenience to the multi-million dollar automobile agency while

it can be cost-prohibitive where the individual is concerned.

11

REASONS FOR GRANTING CERTIORARI

The issue before the Court is most serious. The National

Highway Traffic Safety Administration made a study of consumer

losses in auto repair and maintenance. A copy of the report

dated May 1978 was attached to Petitioner’s complaint as part of

the proof in his case. The study found as follows:

"The Task force systematically analyzed the repair

process and estimated that consumers lose about

$20 billion annually due to improper oF

unnecessary repair and maintenance practices.

The losses consist of wasted repair expenditures,

wasted fuel, avoidable accidents and pollution,

and reduced car life."

The Task Force did not break out losses as to out of state

customers versus in state customers, however, it can be assumed

that the losses would be at least proportionately as great.

General Motors and two General Motors’ agencies were

named as parties defendant. Not one of them questioned the

accuracy of the report or indicated that the situation has

improved.

Petitioner’s experience proves the accuracy of the report.

Negligent repairs by Chevrolet Country in the amount of $424.85

cost Petitioner an additional $4,723.85.

I. THE CONSTITUTIONAL RIGHT OF DUE PROCESS

HAS BEEN DENIED PETITIONER BY THE

SUPREME COURT OF MISSISSIPPI,IN A MANNER

WHICH IS SO FAR FROM THE ACCEPTED AND

USUAL COURSE OF JUDICIAL PROCEEDINGS AS

12

TO CALL FOR AN EXERCISE OF THE SUPREME

COURT'S SUPERVISORY POWER

The petitioner has been denied his constitutional due

process right to sue the respondent in his home state where the

final phase of the tort, the incurring of damages, took place. The

reason, not the erroneous ones set out in the opinion, but the

one in which the court stated that it was sacrificing petitioner’s

rights in order to try to influence other states to deny their

citizens their constitutional due process right to sue a foreign tort

feasor when the tort caused damages in their residence.

II. THE MISSISSIPPI SUPREME COURT, THE STATE

COURT OF LAST RESORT, HAS DECIDED AN

IMPORTANT FEDERAL QUESTION IN A WAY

THAT CONFLICTS WITH THE DECISIONS OF THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

The decision of the Mississippi Supreme Court in David

B. Gross v. Chevrolet Country, Inc., 655 So.2d 873 (Miss. 1995) is

in direct conflict with decisions of the Fifth Circuit Court of

Appeals in three cases.

In Brown v. Flowers, Industries, Inc., et al., 688 F.2d 328,

(Sth Cir. 1982), the only connection with Mississippi was one

tortious telephone call from Jerome Kralis from his office in

Mentone, Indiana, to the United States Attorney in Oxford,

Mississippi. The Fifth Circuit held one phone call was sufficient

to give in personam jurisdiction over the defendant.

In Thompson v. Chrysler Motors Corp. 755 F.2d 1162 (Sth

Cir. 1985), an Alabama automobile dealer’s only connection with

Mississippi was the sending of a defective brake cylinder to a

4

13

Mississippi dealer with instructions to place the defective brake

cylinder on Heath’s car. The defective brake cylinder failed and

the Heaths were killed. The damage from the tort of sending the

defective brake cylinder was complete with the death of the

Heaths.

The Mississippi plaintiff in Rittenhouse v. Mabry, 832 F.2d

1380 (Sth Cir. 1987) went to Memphis, Tennessee, for medical

treatment. Claiming medical malpractice, plaintiff filed suit in

Mississippi. Inn holding no im personam jurisdiction, the Fifth

Circuit found that no part of the “tort” was connected in

Mississippi. The "damages" took place in Tennessee. If the

damages had been incurred in Mississippi, the Mississippi court

would have had jurisdiction.

Ill. | THISIS A CASE OF FIRST IMPRESSION FOR THE

SUPREME COURT IN THAT IT INVOLVES AN

AUTOMOBILE DEALER’S TORT OF NEGLIGENT

REPAIRS DAMAGING IN HIS OWN STATE A

RESIDENT OF ANOTHER STATE. THE SUPREME

COURT OF MISSISSIPPI HAS DECIDED AN

IMPORTANT QUESTION OF FEDERAL LAW THAT

HAS NOT BEEN, BUT SHOULD BE, SETTLED BY

THIS COURT

All of the cases decided by the Supreme Court of the

United States beginning with World-Wide Volkswagen v. Woodson,

444 U. S. 246 (1980) involved product liability usually the fault of

the manufacturer, not the agency. The Supreme Court has never

considered the dealer-repair function and a wronged customer.

The Supreme Court should take jurisdiction of this case and in

its decision protect the rights of the traveling citizens of the

United States. To have to return to the residency of a foreign

automobile agency is to deny the wronged customer’s rights.

14

Gaines

CONCLUSION

This petition has been filed on behalf of the petitioner but

also on behalf of all of the other residents of the State of

Mississippi who travel outside the borders of their home state.

The help of this Court is needed. The issue has never been

before this Court and its guidance and protection is necessary.

It has been fifteen years since World-Wide Volkswagen was

decided. There have been many changes in the automotive

industry. General Motors has just announced a nation wide

shake up of its dealerships changing sales and services.

Justice Marshall in his dissenting opinion in Worldwide

Volkswagen, 444 US 285, may have been wrong in 1980, but his

opinion is absolutely right in 1995.

I sympathize with the majority’s concern that

persons ought to be able to structure their

conduct so as not to be subject to suit in distant

forums. But that may not always be possible.

Some activities by their very nature may foreclose

the option of conducting them in such a way as to

avoid subjecting oneself to jurisdiction in multiple

forums. This is by no means to say that all sellers

of automobiles should be subject to suit

everywhere; but a distributor of automobiles to a

multi-state market and a local automobile dealer

who makes himself part of a nationwide network

of dealerships can fairly expect that the cars they

sell {repair}* may cause injury in distant States

and that they may be called on to defend a

resulting lawsuit there.

4

15

*Added to comply with this case.

For the foregoing reasons, Petitioner respectfully requests

that this Court issue a Writ of Certiorari to review the judgment

of the Supreme Court of Mississippi in this case.

Respectfully submitted

Bee ee hd ows

David B. Gross ics

Post Office Drawer 22989

Jackson, Mississippi 39225-2989

Telephone: (601) 355-0355

Telecopier: (601) 353-6235

Mississippi Bar No. 5042

Petitioner

Submitted November 24, 1995

A-1

DAVID B. GROSS

v.

CHEVROLET COUNTRY, INC.

No. 92-CA-00041-SCT

Supreme Court of Mississippi

April 27, 1965

Rehearing Denied June 22, 1995

Mississippi resident sued Texas automobile mechanic

corporation for negligent repairs to van, which allegedly caused

further damage. Corporation moved to dismiss for lack of in

personam jurisdiction, and subsequently for summary judgment

for lack in personam jurisdiction. The Circuit Court, Hinds

County, James E. Graves Jr., J., granted corporation’s motion for

summary judgment, and Mississippi resident appealed. The

Supreme Court, Prather, PJ., held that: (1) Texas corporation

was not subject to state long-arm statute, or corporate long-arm

Statute, as it was not “doing business” in state for purposes of

these statutes, and (2) to subject Texas defendant to in personam

jurisdiction in Mississippi would not comport with fair play and

substantial justice, based on lack of purposeful contacts and

failure of defendant to invoke benefits and protection of

Mississippi laws.

Affirmed.

A-2

McRae, J., filed dissenting opinion, in which Lee, P_J.,

and Roberts, J., joined.

Paul M. Neville, Neville & Wilson, Jackson for appellant.

Charles G. Copeland and Michael W. Baxter, Copeland

Cook Taylor & Bush, Jackson for appellee.

En banc.

PRATHER, Presiding Justice, for the Court:

A-3

I. INTRODUCTION

David Gross ("Gross"), a Mississippi resident, filed suit

against Chevrolet Country, Inc. (Chevy"), a Texas corporation,

alleging Chevy was subject to in personam jurisdiction of the

Mississippi courts pursuant to our long arm statute. Gross

alleged Chevy was doing business in this State and further alleged

Chevy had committed a tort in part within this state. Chevy

moved for summary judgment, claiming the trial court lacked in

personam jurisdiction; summary judgment was granted in favor

of Chevrolet. Gross now appeals from the trial court's grant of

the summary judgment, seeking review of the following issues:

A. Whether the trial court erred in granting summary

judgment in favor of Chevrolet Country, Inc., on the basis that the

court lacked in personam jurisdiction over Chevrolet because it was

not doing business within the state; and

B. Whether the trial court erred in finding no ground for the

exercise of in personam jurisdiction over Chevrolet Country, Inc., in

view of Gross’ allegation that Chevrolet had committed a tort at

least partially within the state.

The trial court did not err in granting summary judgment

in favor of Chevy; therefore, this Court affirms.

II. THE FACTS AND PROCEDURAL HISTORY

Gross purchased a new 1983 General Motors Corporation

(GMC) van from Martin Motor Company in Laurel, Mississippi.

While traveling through Austin, Texas, on August 31, 1985,

Gross’ van became disabled and it was towed to Chevy, the

nearest GM dealer in the area, on September |, 1985. Chevy

‘

A-4

performed the necessary repairs. Gross paid for the services, and

Gross regained possession of his van on September 1, 1985. On

January 27, 1986, Gross’ van would not start. The following day

it was towed to Fowler Buick-GMC (Fowler) for repairs, the cost

of which was $4,723.85. Fowler employees informed Gross that

the repairs to the van were necessitated by damage caused by a

nut that had been left in the air intake system during previous

repairs. Fowler employees also told Gross that previous work

they had performed on the van had not required access to the air

intake system: therefore, the nut could not have been left there

by Fowler. However, previous work by Fowler had required

removal of the engine cover.

On August 31, 1987, David Gross filed suit in the Hinds

County Circuit Court against Chevrolet Country, Inc., GMC, and

Fowler-Buick. Gross, a resident citizen of Mississippi, alleged

that Chevy was a Texas corporation which had either done

business in Mississippi or committed a tort within Mississippi.

Gross alleged that only Chevy and Fowler had removed the

engine cover with access to the air intake system. Gross claimed

he had relied upon Chevy’s and Fowler’s service departments

because of GMC’s "Mr. Goodwrench" advertising programs.

Gross further alleged a tortious breach of duty and negligence on

the part of either Chevy or Fowler in repairing the van, alleged

tortious conduct on the part of GMC because of its advertising

campaign, and sought $54,873.00 compensatory and

$10,000,000.00 punitive damages.

Chevy responded with a motion to dismiss for lack of in

personam jurisdiction and an answer to Gross’ complaint.

Chevy’s motion to dismiss was amended to show that it was not

subject to in personam jurisdiction in Mississippi via this state’s

long arm statute. Gross sought to have Chevy’s motion to

dismiss held in abeyance until completion of discovery; Chevy’s

nn

A-5

motion to dismiss was subsequently overruled. GMC filed a

motion to dismiss, which was granted except as to the count

alleging breach of express warranty.

Gross next amended his complaint to allege that Fowler

employees told Gross the nut could have been left in the air

intake system upon manufacture. Gross also dropped the

intentional misconduct count contained in the original complaint.

The punitive damages requested were reduced to $1,000,000.00.

Again, Chevy answered and included a motion to dismiss for lack

of in personam jurisdiction. GMC again moved for summary

judgment, which was granted except as to the express warranty

claim. The court reserved ruling on Gross’ claim that a separate

express warranty claim lay in the "Mr. Goodwrench" advertising

campaign. Gross then filed a motion to reconsider the order of

dismissal and order of partial summary judgment. The cause was

subsequently dismissed because stale, then reinstated.

Gross requested leave to file a second amended

complaint. Chevy then filed a motion for summary judgment,

noting that Gross’ claims against it arose from repairs to Gross’

van performed by Chevy within the State of Texas on one

occasion and claiming that the Mississippi long arm statute did

not confer jurisdiction over Chevy. In the alternative, Chevy

requested summary judgment because there were no genuine

issues of material fact. Chevy claimed that adequate time for

discovery had passed and Gross had not and could not provide

any evidence that Chevy had left the extraneous nut in the air

intake system of the van. Chevy further noted that the van

performed well for nine thousand (9,000) miles after Chevy had

performed repairs to the van.

The judge who issued the order on Gross’ motion for

leave to file an amended complaint, to reconsider the previous

‘4

A-6

order of dismissal and partial summary judgment with respect to

GMC, and Chevy’s motion for summary judgment, noted that the

previous orders of the court had been entered by a different

judge. In his order, the new trial judge found that a previous

order had reserved the question of all theories of recovery based

on the "Mr. Goodwrench" advertising campaign. The court

further found that Chevy was not subject to the Mississippi

court’s jurisdiction based on any alleged tortious actions in Texas.

However, the court found that the question of whether Chevy

was subject to jurisdiction because vicariously liable for any

alleged negligence of Fowler as a co-adventurer in the "Mr.

Goodwrench" advertising campaign or because it was doing

business in the state as such a co-venturer, remained.

The trial court granted Gross’s request to file a second

amended complaint, more explicit than the first amendment

regarding the "Mr. Goodwrench" campaign, and Chevy’s motion

for summary judgment was held in abeyance pending further

discovery on the "Mr. Goodwrench” advertising issue.

Gross filed his second amended complaint, to which

Chevy responded that it was not subject to the court’s

jurisdiction. Chevy then moved to renew its prior motion for

summary judgment. Gross opposed Chevy’s motion for summary

judgment, claiming that there were material issues of fact

precluding such relief. Gross also submitted affidavits supporting

his opposition of summary judgment. Chevy moved to strike

both affidavits submitted by Gross.

The trial court granted Chevy’s motion for summary

judgment, finding as a matter of law that Fowler was not acting

on behalf of Chevy when Fowler repaired Gross’ van. The court

also found that Chevy had no right to control the manner in

which the repairs were performed by Fowler. The court

A-7

concluded that with no imputed negligence from Fowler to

Chevy, no grounds for in personam jurisdiction over Chevy

remained. Gross’ motion for a new trial or to alter judgment was

denied.

GMC made an offer of judgment to Gross in the amount

of $5,000.00, which was accepted. A summary judgment in favor

of Chevy was subsequently entered by the court. This appeal

followed.

Ill. THE LAW

A. Whether the trial court erred in granting summary

judgment in favor of Chevrolet Country, Inc.:

1. on the basis that the court lacked in personam

jurisdiction over Chevrolet because it was not doing business within

the state; or

2 in view of Gross’ allegation that Chevrolet had

committed a tort at least partially within the state.

a. Summary Judgment

[1] Rule 56c of the Mississippi Rules of Civil Procedure

allows summary judgment where there are no genuine issues of

material fact such that the moving party is entitled to judgment

as a matter of law. To prevent summary judgment, the non-

moving party must establish a genuine issue of material fact by

means allowable under the Rule. Frank v. Dore, 635 So.2d 1369,

1373 (Miss 1994); Lyle v. Mladinich, 584 So.2d 397, 398

(Miss.1991).

[2] This Court will review de novo a decision to grant

4

A-8

summary judgment. Nationwide Mut. Ins. Co. v. Garrigo, 636

So.2d 658, 660 (Miss.1994); Short v. Columbus Rubber & Gasket

Co., 535 So.2d 61, 63 (Miss. 1988). If any triable issues of fact

exist, the lower court’s decision to grant summary judgment will

be reversed. Otherwise, the decision is affirmed. Brown v. Credit

Center, Inc. 444 So.2d 358,362 (Miss. 1983). This Court, however,

views the evidence in the light most favorable to the non-moving

party. Turner v. Johnson, 498 So.2d 389, 390 (Miss. 1986).

b. Mississippi Long Arm Statute

Gross contends Chevy is amenable to suit in Mississippi

via our long arm statute. Miss. Code Ann. Sec. 13-3-57 (Supp.

1994). The statute allows exercise of personal jurisdiction over

a nonresident corporation if it made a contract with a Mississippi

resident to be performed in whole or in part in this state,

committed a tort in whole or in part in this state against a

resident or nonresident, or performed any character of work or

service in Mississippi. Via any of these acts, a nonresident

corporation is deemed to be doing business in Mississippi. Miss.

Code Ann. Sec 13-3-57 (Supp. 1994).

1) “doing business”

[3] Chevy did not make any contract with a Mississippi

resident which was to be performed in any part within

Mississippi, nor does Gross make such a claim. Whether Chevy

committed a tort in part in the state against Gross is discussed

subsequently herein. But did Chevy conduct any business in

Mississippi? The test to determine whether a nonresident

corporation is doing business in Mississippi, as contemplated by

our long arm statute, is: (1) the nonresident corporation must

purposefully do some act or consummate a transaction in

Mississippi; (2) the cause of action must either arise from or be

A-9

connected with the act or transaction; and (3) the assumption of

jurisdiction by Mississippi must not offend traditional notions of

fair play and substantial justice. Rittenhouse v. Mabry, 832 F.2d

1380, 1384 (Sth Cir. 1987) (citing Mladinich v. Kohn, 250 Miss.

138, 147, 164 So.2d 785, 790 (1964)). The third prong of this test

must be considered in light of the amount and type of activity in

Mississippi, convenience of the parties, whether the parties

receive benefits and protections of Mississippi’s laws, and the

equities of the situation. Rittenhouse, 832 F.2d at 1384.

[4-6] While the current long arm statute, which became

effective July 1, 1991, does not require any nexus between the

nonresident’s Mississippi business and injury, the version of the

long arm statute in effect at the time Gross filed his complaint

and amended complaints did require such a nexus. See Southern

Pacific Transp. Co. v. Fox, 609 So.2d 357, 360, 360, n. 5 (Miss.

1992). The prior long arm statute, at issue here, allowed

assumption of jurisdiction only in actions accruing from or

incident to the nonresident’s actions in Mississippi. Southern

Pacific, 609 So.2d at 360: Miss. Code Ann. Sec. 13-3-57 (Supp.

1990) (effective from and after July 1, 1980). The current version

of the long arm statute, which repealed the nexus test, applies

only prospectively to causes of action commenced after July 1,

1991. Southern Pacific, 609 So.2d at 360 n. 5. It follows that the

nexus test of the prior statute and the Mladinich test for "doing

business" are applicable to the case sub judice.

[7] The record does not reflect that Chevy purposefully

performed any act or consummated any business in Mississippi.

Gross argues that by virtue of Chevy’s participation in the "Mr.

Goodwrench" program Chevy is a joint venturer with Fowler, also

a participant in the "Mr. Goodwrench" campaign. However,

neither Chevy nor Fowler has any right of mutual control, they

do not share profits or losses, and neither had any actual intent

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to form a joint venture. Without these essential elements, there

can be no joint venture. Hults v. Tillman, 480 So.2d 1134, 1142-

43 (Miss. 1985) (citing Sample v. Romine, 193 Miss 706, 8 So.2d

257, MODIFIED, 193 Miss. 706, 10 So.2d 346 (1942)).

[8] Assuming, arguendo, Chevy as a joint venturer in the

"Mr. Goodwrench" advertising campaign, there is still no

purposeful solicitation from Chevy of Mississippi residents to

come to Chevy, in Texas, for automobile repairs. CF Creech v.

Roberts, 908 F.2d 75, 79 (6th Cir. 1990), CERT. DENIED, 499 U.

S. 975, 111 S. Ct. 1619, 113 L. Ed. 2d 717 (1991) (advertisement

of particular foreign entity in forum state constitutes purposeful

availment of the privilege of acting in forum state). The

advertising of "Mr. Goodwrench" in Mississippi is presumably

intended to induce Mississippi residents to deal with Mr.

Goodwrench dealers and servicers in Mississippi. Even if a joint

venture existed, the first prong of the Mladinich tripartite test for

"doing business" is not met. With no purposeful act or

transaction in Mississippi, the second prong of the Mladinich test-

-a nexus between the cause of action and the purposeful

Mississippi act or transaction--cannot be met.

Continuing with the third prong of the Mladinich test,

traditional notions of fair play and substantial justice would be

offended by assumption of jurisdiction in this case. Chevy has

never advertised in the state of Mississippi nor has it carried on

any activity within the state. Mississippi is a convenient forum

for Gross, but not so for Chevy. Further, Chevy has not availed

itself of the benefits or protections of Mississippi's laws. As a

matter of law, assertion of jurisdiction over Chevy based on its

“doing business” in Mississippi would be improper. The trial

court did not err.

A-11

2) Corporate Long Arm Statute

[9] Miss. Code Ann. Sec. 79-1-27, a statute regulating

corporations, has been interpreted by this Court as supplemental

to the long arm statute. Arrow food distributors. Inc. v. Love, 361

So.2d 324, 327 (Miss. 1978) CERT DENIED 439 U. S. 1073, 99

S.CT. 845, 59 L.Ed. 39 (1979), OVERRULED ON OTHER

GROUNDS, Hollingsworth v. Bovaird Supply Co., 465 So.2d 311

(Miss. 1985). Although repeal of this section was effective

January |, 1988, it was in force at the time Gross commenced his

action in 1987. This statute subjected foreign corporations to

jurisdiction of Mississippi courts, whether or not the cause of

action accrued in mississippi, if the corporation was doing

business in Mississippi, Rittenhouse, 832 F.2d at 1387. Section

79-1-27 required no nexus between the injury and the

corporation’s business activity in Mississippi. Nonetheless, the

statute aids Gross not at all because he has not shown that Chevy

was doing business in Mississippi.

4) Tort Within The State

[10] The mississippi long arm statute subjects a

nonresident corporation to jurisdiction of this state’s courts if it

committed a tort, in whole or in part, within this state. Miss.

Code Ann. Sec. 13-3-57 (Supp. 1994). Gross alleged that Chevy

committed a tort in part within this state, either by negligently

leaving the extraneous nut in the air intake system at the time it

performed repairs or, vicariously, by virtue of the "Mr.

Goodwrench" joint venture, through Fowler negligently leaving

the extraneous nut in the air intake system. As previously

discussed, the record does not evidence a joint venture between

Chevy and Fowler. Consequently, any jurisdiction over Chevy

based on the tort prong of our long arm must be supported by a

tort committed by Chevy, in whole or in part, in Mississippi.

4

A-12

[11]. Assuming Chevy negligently left the nut in the air

intake system when it made repairs to Gross’ van, no injury

occurred until five months later when the van’s engine froze and

Gross sustained a financial loss related to engine repairs

performed by Fowler. For purposes of the tort prong of

Mississippi’s long arm statute, "a tortious act outside the state

which causes injury within the state confers jurisdiction on the

courts of that state". Wilkinson v. Mercantile Nat. Bank, 529 So.2d

616, 618 (Miss. 1988). But as noted above, assertion of

jurisdiction over Chevy would still offend "traditional notions of

fair play and substantial justice." International Shoe Co. v.

Washington, 326 U. S. 310, 316, 66 S.Ct. 154. 158; 90 L.Ed. 95

(1945).

Chevy has no contacts with Mississippi which would cause

reasonable anticipation that it would be "hauled into court" here.

World-Wide Volkswagen v. Woodson, 444 U.S. 246, 297, 100 S.Ct.

559, 567, 62 L.Ed.@d 490 (1980). Not only are there no

substantial, continuous, and deliberate contacts with Mississippi,

there is no purposeful availment of the Mississippi market and no

invocation of the benefits or protections of Mississippi laws. See

Burger King v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 2183, 85

L. Ed 528 (1985) Asahi Metal Industry Co. v. Superior Court, 480

U. S. 102, 112, 107 S.Ct. 1026, 1032, 94 L.Ed. 92 (1987); Hanson

y. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed. 2nd

1283 (1958). In sum, Chevy does not have the requisite

minimum contacts with mississippi such that it would be

reasonable to require Chevy to defend a suit here. International

Shoe, 326 U.S. at 327, 66 S.Ct. at 158. There are no genuine

issues of material fact necessary to this determination; the trial

court did not err.

A-13

IV. CONCLUSION

To allow assertion of in personam jurisdiction by our

courts in this instance would likely prompt reciprocal action by

other states toward Mississippi citizens. Certainly traditional

notions of fair play and substantial justice would be offended by

assertion Of in personam jurisdiction by a Texas court over a

Mississippi automobile mechanic simply because a vehicle on

which he had performed repairs in Mississippi subsequently, and

perhaps only coincidentally, became disabled in Texas.

It can be said as a matter of law that Chevy is not

amenable to jurisdiction in Mississippi pursuant to our long arm

Statute. There was no purposeful solicitation of Mississippi

residents to come to Chevy, in Texas, for automobile repairs,

therefore Chevy was not “doing business" in Mississippi.

Rittenhouse v. Mabry, 832 F.2d 1380, 1384 (Sth Cir. 1987) (citing

Mladinich v. Kohn, 250 Miss. 138, 147, 164 So.2d 785, 790 (1964).

Despite the "Mr. Goodwrench" advertisements, there was no joint

venture between Chevy and Fowler on which to base a finding

that Chevy was "doing business" in Mississippi. Hults v. Tillman,

480 So.2d 1134, 1142-43 (Miss. 1985) (citing Sample v. Romine,

193 Miss 706, 8 So.2d 257, MODIFIED, 193 Miss. 706, 10 So.2d

346 (1942). Assuming, arguendo Chevy was “doing business” in

this state, traditional notions of fair play and substantial justice

would be offended by requiring Chevy to defend a suit in

Mississippi due to the lack of purposeful, continuous, and

systematic contacts with the state and Chevy’s failure to invoke

the benefits and protections of Mississippi laws. International

Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158; 90

L.Ed. 95 (1945). Burger King v. Rudzewicz, 471 u. S. 462, 105

S.Ct. 2174, 2183, 85 L. Ed 528 (1985); Asahi Metal Industry Co.

v. Superior Court, 480 U.S. 102, 112, 107 S.Ct. 1026, 1032, 94

L.Ed. 92 (1987); Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct.

‘4

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1228, 1239, 2 L.Ed. 2nd 1283 (1958). The corporate long arm

statue also fails to make Chevy subject to suit in Mississippi

because Gross did not show that Chevy was doing business in

Mississippi. Rittenhouse, 832 F.2d at 1387.

Although Gross alleged that Chevy committed a tort

within this state, Chevy’s lack of contacts with Mississippi again

prevent assertion of jurisdicti on. Chevy did not have the

requisite minimum contacts which would cause reasonable

anticipation that it would be hauled into court here. World-Wide

Volkswagen v. Woodson, 444 U.S. 246, 297, 100 S.Ct. 559, 567, 62

L.Ed.@d 490 (1980). There are no genuine issues of material

fact necessary to this determination, therefore, this Court affirms.

JUDGMENT IS AFFIRMED.

HAWKINS, C.J. AND SULLIVAN, PITTMAN and

SMITH, J.J. concur.

McRAE, J., dissents with separate written opinion joined

by DAN M. LEE, P.J., AND JAMES L. ROBERTS, J.

BANKS, J., NOT PARTICIPATING.

McRAE, Justice, dissenting:

In view of the majority’s decision, any Mississippi resident

who suffers an injury in Mississippi as the result of negligent

repairs made to his automobile or other personal property in

another state cannot seek redress in his home state, but instead,

must bring suit in the jurisdiction where the repairs were made.

I disagree with that proposition and therefore, dissent.

Repairs were made to Gross’ GMC van at Chevrolet

A-15

Country, Inc. in Austin, Texas, in September, 1985. Five months

later, at his home in Mississippi, the van refused to start and was

towed to Fowler Buick-GMC in Jackson, where it was

determined that the vehicle’s problems arose from a nut left in

the air intake system left during a previous repair job, allegedly

by Chevrolet Country. It cost Gross some $4,723.85 to have the

damage repaired. Gross filed suit against GMC, Chevrolet

Country and Fowler Buick on August 31, 1987.

When a manufacturer places a defective product into the

stream of commerce and damages result, we look to where the

plaintiff's injury occurred. Since our decision in State Stove

Manufacturing Co. v. Hodges, 189 So.2d 113 (Miss. 1966), where

a home in Mississippi was demolished by the explosion of a water

heater that had been manufactured in Tennessee and sold to a

wholesaler in Memphis before being sold to a Mississippi

contractor and suit was filed in Mississippi against the Tennessee

manufacturer, where the plaintiff might bring suit has not been

an issue in these cases. Suit may be brought where the tort

happened in full or in part, regardless of how attenuated the

defendant’s relationship to the situs of the injury. Similarly, when

damages arise from negligent repairs, suit is properly brought

where the injury occurred. Especially in cases where multiple

defendants are involved, it therefore defies logic to suggest that

$ separate suit should be filed in Texas against Chevrolet Country

when the injury complained of occurred in Mississippi, the

plaintiff and defendant Fowler Buick are Mississippi residents

and GMC, by virtue of doing business in Mississippi, is

unquestionable subject to our long-arm jurisdiction.

In Southern Pacific Transportation Co. v. Fox, 609 So.2d

357 (Miss. 1992), where the Court found that the Mississippi

courts did not have jurisdiction to hear a FELA case arising out

of a tort which occurred in Texas brought by a Texas plaintiff

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A-16

against a railroad with Mississippi business relationships, the

majority was reminded that under common law, such a claim

could have been permissible. ID at 363-364 (Dan Lee, P. J.,

dissenting). The dissent focused on the language of Pullman

Palace-car Co. v. Lawrence, 74 Miss. 782, 22 So. 53 (1897), which

provides as follows:

(W)e had supposed there was, in our own state, no

ground left for dispute that, in transitory actions, whether in tort

or in contract, OUR COURTS WERE WIDE OPEN TO ANY

SUITOR, RESIDENT OR NONRESIDENT, AGAINST HIS

ADVERSARY, WHETHER RESIDENT OR NONRESIDENT,

WHETHER A NATURAL PERSON OR AN ARTIFICIAL

ONE, REGARDLESS OF WHERE THE RIGHT OF ACTION

OCCURRED, IF ONLY THE CARTS HAD JURISDICTION

OF THE SUBJECT MATTER, AND COULD OBTAIN

JURISDICTION OF THE PARTY, EITHER A VOLUNTARY

APPEARANCE, OR BY SERVICE OF PROCESS.

Pullman, 74 Miss. at 796, 22 So. 53 (emphasis added).

Regardless of amendments to and repeal of language in our long-

arm statutes, our courts have been open to cases against mon-

resident defendants. We have not closed our doors to suits

against non-resident manufacturers with only fortuitous links to

Mississippi. Therefore, our carts should be open to actions

against non-resident businesses when a tort in whole or in part

occurs in Mississippi and causes damages to a Mississippi

resident. Accordingly, I dissent.

DAN M. LEE, P.J., and JAMES L. ROBERTS, J., join this

opinion.

SUPREME COURT OF MISSISSIPPI

Supreme Court Case #92-CA-00041-SCT

David B. Gross

vs.

Chevrolet Country, Inc.

Petition for rehearing denied, Lee, P.J., McRae and

Roberts, JJ., would grant. Banks, J., Not Participating.

Motion of Chevrolet Country, Inc., to Strike Exhibits

attached to Appellants’s Petition for Rehearing granted.

Banks, J., Not Participating. Order entered.

Supreme Court Clerk

lwp

ccs: Michael Wayne Baxter

Hinds County Circuit Clerk