        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                             NO. 2014-CA-00178-COA

KIMBERLEE WILLIAMS                                                   APPELLANT


v.

LIBERTY MUTUAL FIRE INSURANCE                                         APPELLEES
COMPANY OR LIBERTY MUTUAL
INSURANCE GROUP, INC. AND LINDSEY
STAFFORD

DATE OF JUDGMENT:                      01/10/2014
TRIAL JUDGE:                           HON. ROBERT P. CHAMBERLIN
COURT FROM WHICH APPEALED:             DESOTO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                DRAYTON D. BERKLEY
ATTORNEYS FOR APPELLEES:               CLIFFORD KAVANAUGH BAILEY III
                                       JEREMY DALE HAWK
                                       JAMES LEROY BANKS IV
NATURE OF THE CASE:                    CIVIL - PROPERTY DAMAGE
TRIAL COURT DISPOSITION:               GRANTED LIBERTY MUTUAL’S MOTION
                                       TO DISMISS FOR FORUM NON
                                       CONVENIENS AND GRANTED
                                       STAFFORD’S MOTION TO DISMISS FOR
                                       LACK OF PERSONAL JURISDICTION
DISPOSITION:                           AFFIRMED IN PART, REVERSED AND
                                       RENDERED IN PART, AND REVERSED
                                       AND REMANDED IN PART: 07/21/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE GRIFFIS, P.J., BARNES AND JAMES, JJ.

      GRIFFIS, P.J., FOR THE COURT:

¶1.   Kimberlee Williams filed suit against Lindsey Stafford in DeSoto County Circuit

Court for damages stemming from an automobile accident. Williams later joined Liberty

Mutual Fire Insurance Company (Liberty Mutual). Liberty Mutual and Stafford filed
separate motions to dismiss, citing forum non conveniens and lack of personal jurisdiction,

respectively. The circuit court granted both motions and dismissed the suit with prejudice

as to Stafford and without prejudice as to Liberty Mutual. Williams appeals.

                        FACTS AND PROCEDURAL HISTORY

¶2.    Williams and Stafford were involved in an automobile accident in Shelby County,

Tennessee, on December 15, 2011. Williams, a Tennessee resident, sued Stafford in DeSoto

County, Mississippi, on December 17, 2012. Williams alleged Stafford negligently caused

the accident and sought compensatory and punitive damages.

¶3.    In the complaint, Williams alleged Stafford was a resident of Southaven, Mississippi.

On April 26, 2013, the circuit court granted Williams a 120-day extension to serve Stafford

with process. Williams served Stafford with the summons and complaint in Tennessee on

May 15, 2013.

¶4.    Stafford entered an appearance in the case and filed a motion to dismiss for lack of

personal jurisdiction on June 24, 2013. Stafford contested the circuit court’s personal

jurisdiction on the basis that she claimed she was a Tennessee resident. Stafford argued that

she had changed her domicile from Mississippi to Tennessee in July 2011.

¶5.    On September 3, 2013, Williams filed a motion to amend the complaint and join

Liberty Mutual. The circuit court granted the motion on September 12, 2013. Liberty

Mutual responded with a motion to dismiss on the ground of forum non conveniens.

¶6.    The circuit court set a hearing on Stafford’s motion to dismiss for September 9, 2013.

That day, Williams served Stafford with a second summons and complaint when Stafford



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appeared at the circuit court on an unrelated criminal matter. The hearing on Stafford’s

motion was continued until November 18, 2013, when the circuit court heard both motions

to dismiss.

¶7.    On December 19, 2013, the circuit court entered an order granting Liberty Mutual’s

motion to dismiss based on forum non conveniens. The circuit court dismissed Liberty

Mutual without prejudice provided Liberty Mutual agreed to waive the statute of limitations

if Williams refiled the action in Tennessee. On January 10, 2014, the circuit court entered

an order granting Stafford’s motion to dismiss due to lack of personal jurisdiction. The

circuit court dismissed with prejudice. Williams now appeals both judgments.

                                        ANALYSIS

¶8.    Williams asserts several issues on appeal. For clarity, we divide the issues as those

pertaining to Stafford and those pertaining to Liberty Mutual. “Jurisdictional issues are

reviewed pursuant to a de novo standard of review.” Joshua Props. LLC v. D1 Sports

Holdings LLC, 130 So. 3d 1089, 1092 (¶8) (Miss. 2014) (citation omitted). “Jurisdiction is

decided based on the existing facts at the time the action is commenced.” Id. (citing Estate

of Jones v. Phillips ex rel. Phillips, 992 So. 2d 1131, 1137 (¶9) (Miss. 2008)).

       I.     Whether the circuit court erred in granting Stafford’s motion to dismiss
              for lack of personal jurisdiction with prejudice.

¶9.    We begin with the procedural issues. Williams argues that the circuit court erred in

the dismissal of Stafford with prejudice.

¶10.   A dismissal with prejudice indicates a ruling on the merits of the case, but a dismissal

for lack of jurisdiction necessarily does not implicate the merits of the case. See Jackson v.

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Bell, 123 So. 3d 436, 439 (¶7) (Miss. 2013) (“[A] dismissal for lack of jurisdiction is not a

dismissal on the merits, and thus may not be with prejudice.”); B.A.D. v. Finnegan, 82 So.

3d 608, 615 (¶27) (Miss. 2012) (court could not dismiss case with prejudice for lack of

subject-matter jurisdiction). Thus, a court must issue a dismissal on jurisdictional grounds

without prejudice. The dismissal of Stafford should have been without prejudice.

¶11.   Williams also argues the circuit court erred in finding that Stafford did not waive any

objections to jurisdiction by entering a general appearance rather than a special appearance.

Williams further contends the circuit court erred in finding Stafford was a Tennessee

resident, and in finding personal service on Stafford would not comport with due process.

According to Williams, the circuit court also misapplied Mississippi Rule of Civil Procedure

4, applied the incorrect legal standard in finding the Mississippi long-arm statute did not

apply, and erred in applying immunity to Stafford. We consolidate and clarify these issues.

              A.     The Tennessee Summons

¶12.   Williams served Stafford with a summons and complaint while she was in Tennessee.

Stafford did not contest the validity of the summons, but did dispute that the Mississippi

circuit court had personal jurisdiction over her.

¶13.   Williams claimed that Stafford waived her objections to personal jurisdiction. This

Court has held:

       A voluntary entry of appearance by a defendant no longer serves as a waiver
       of that defendant’s right to subsequently contest the court’s in personam
       jurisdiction arising from an alleged defect in the manner in which the
       defendant was served with process. See Rains v. Gardner, 731 So. 2d 1192,
       1194-97 (¶¶9-17) (Miss. 1999). Thus, earlier disputes over whether an
       appearance was a general appearance or a special appearance for the limited

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       purpose of contesting the court’s jurisdiction . . . have become moot.

Schustz v. Buccaneer Inc., 850 So. 2d 209, 213 (¶14) (Miss. Ct. App. 2003). Further, “case

law makes it clear that the challenge must be asserted by motion or otherwise at the first

opportunity after the appearance or it is deemed waived.” Id. at (¶16) (citing Young v. Huron

Smith Oil Co., 564 So. 2d 36, 38-39 (Miss. 1990)). Clearly, Stafford did not waive her

objection to personal jurisdiction when she entered an appearance and simultaneously filed

a motion to dismiss for lack of personal jurisdiction.

¶14.   We must now examine whether the circuit court had jurisdiction over Stafford.

Williams claimed that Stafford was a Mississippi resident. We must, therefore, determine

Stafford’s domicile. The elements indicating one’s domicile include: “(1) an actual residence

voluntarily established in said county, (2) with the bona fide intention of remaining there, if

not permanently, at least indefinitely.” Smith v. Smith, 194 Miss. 431, 434, 12 So. 2d 428,

429 (1943). “The intent necessary is the intent that an established residence shall be

reasonably permanent. The intent must be to make a home at the moment and not in the

future.” Id.

¶15.   Further, a party’s domicile is established when the complaint is filed.             See

Euclid-Miss. v. W. Cas. & Sur. Co., 249 Miss. 547, 554, 163 So. 2d 676, 679 (1964)

(“[J]urisdiction is determined as of the time of filing suit.”). Williams argues that Stafford

held a Mississippi driver’s license at the time of the accident. Yet Stafford stated that she

left Mississippi in July 2011, and from that time she intended to establish her domicile in

Tennessee. The circuit court found Stafford established her domicile in Tennessee. There



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was sufficient evidence to support this finding. Thus, the circuit court did not err in finding

that Stafford’s domicile was in Tennessee as of the date the complaint was filed.

¶16.   Next, we must decide whether the circuit court properly dismissed the action for lack

of personal jurisdiction. “The proper order when analyzing personal jurisdiction over

nonresident defendants is to first consider whether the long-arm statute subjects a nonresident

defendant to personal jurisdiction[,] and then to consider whether the statute’s application

to that defendant offends the Due[-]Process Clause of the Fourteenth Amendment to the U.S.

Constitution.” Phillips, 992 So. 2d at 1137 (¶9).

¶17.   Williams contends the circuit court erred in finding that neither the long-arm statute

nor due process allowed for personal jurisdiction over Stafford. The Mississippi long-arm

statute provides:

       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 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.

Miss. Code. Ann. § 13-3-57 (Supp. 2014).

¶18.   Williams cannot apply the first two prongs of the long-arm statute because the

automobile accident occurred in Tennessee, and neither party contracted with the other in

Mississippi. Instead, Williams relies on the third provision stating Stafford engaged in

business in the state. Williams claims Stafford was subject to the doing-business prong



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because she appeared in the circuit court, contracted with a Mississippi bail bondsman, and

retained a Mississippi attorney, all due to an unrelated criminal matter.

¶19.     Notwithstanding Williams’s contentions, Mississippi courts previously interpreted the

long-arm statute to bar the use of the doing-business prong by nonresident plaintiffs. See

Herrley v. Volkswagen of Am. Inc., 957 F.2d 216, 219 (5th Cir. 1992) (affirming based on

precedent barring nonresident use of doing-business prong).          Regardless of whether

Stafford’s acts constituted doing business, Williams, as a Tennessee resident, cannot utilize

any of the three prongs of the long-arm statute.

¶20.     Though Williams served Stafford with a valid summons in Tennessee, the summons

failed to confer personal jurisdiction to the circuit court over Stafford. Williams also urges

this Court to find that Stafford possesses minimum contacts with Mississippi, which

comports with due-process requirements. However, the long-arm statute does not extend to

Stafford, which precludes any due-process analysis. Therefore, we find this issue is without

merit.

                B.     The Mississippi Summons

¶21.     In addition, Williams served Stafford with a second summons and complaint when she

appeared before the circuit court on an unrelated criminal matter. Williams argues that this

service of process rectified any deficiencies in personal jurisdiction from the Tennessee

summons. “It may well be that in-state personal service upon a physically present defendant

is sufficient under the old power theory of personal jurisdiction. Such may also be sufficient

to satisfy the defendant's due[-]process rights.” Chenier v. Chenier, 573 So. 2d 699, 702-03



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(Miss. 1990) (internal citations omitted) (citing Burnham v. Superior Court of Cal., 495 U.S.

604, 628 (1990) (holding in-state service of process of nonresident did not offend due

process)).

¶22.   Stafford cites Chenier for a different proposition. The Chenier court stated: “This

Court has long recognized the rule that a non-resident otherwise not amenable to suit enjoys

immunity from civil process when he appears in this state as a party or witness.” Id. at 703

(citing Arnett v. Carol C. & Fred R. Smith Inc., 145 So. 638, 641 (1933)). While Chenier

confirmed the practice of serving nonresidents in-state, Chenier also held nonresident

defendants and parties acquired immunity from civil service of process when appearing for

an unrelated legal matter. Id. at 703-04. Thus, Stafford argues that her compulsory

appearance in the circuit court for an unrelated criminal matter rendered the Mississippi

summons void.

¶23.   Stafford only appeared in Mississippi due to her required appearance on a criminal

matter. Otherwise, Williams could not have served her in Mississippi, and Stafford would

not have been amenable to personal jurisdiction. If Stafford failed to appear in court on her

criminal matter, she faced imprisonment. This scenario underscores the purpose of the grant

of immunity. In Chenier, the Mississippi Supreme Court held:

       [T]he sub silentio premise of the rule has always been that the witnesses and
       parties entitled to this immunity were persons who otherwise could not be sued
       in Mississippi; that is, were it not for the fact that they had come to Mississippi
       as a witness or a party, there would be no way to serve them with process and
       subject them to personal jurisdiction here. The rule is one of fairness.

Chenier, 573 So. 2d at 703. Thus, the immunity as explained in Chenier applied and



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rendered the Mississippi summons invalid.

¶24.   Having considered whether the circuit court had personal jurisdiction over Stafford,

we affirm the circuit court’s judgment that dismissed Williams’s claims against Stafford.

However, we also find that the dismissal should have been without prejudice. We therefore

reverse the circuit court’s judgment dismissing the claims with prejudice and render a

judgment of dismissal without prejudice.

       II.    Whether the circuit court erred in granting Liberty Mutual’s motion to
              dismiss based on forum non conveniens without prejudice.

¶25.   Williams next argues that the circuit court erred in granting Liberty Mutual’s motion

to dismiss for forum non conveniens. Williams contends the circuit court incorrectly applied

Mississippi Rules of Civil Procedure 45 and 82(c) and the doctrine of forum non conveniens.

Further, Williams asserts the circuit court’s order violated Mississippi Code Annotated

section 11-11-3(4)(b) (Supp. 2014).

¶26.    “A lower court’s dismissal based on the doctrine of forum non conveniens should

only be reversed if the trial court abused its discretion or applied an erroneous legal standard,

and the dismissal should be accorded great deference on appeal.” Poole v. Am. Pub. Life Ins.

Co., 878 So. 2d 1102, 1103 (¶6) (Miss. Ct. App. 2004) (citing Metropolitan Life Ins. Co. v.

Aetna Cas. & Sur. Co., 728 So. 2d 573, 575 (¶7) (Miss. 1999)).

¶27.   As part of the order of dismissal, the circuit court indicated that Liberty Mutual

waived any statute-of-limitations bar in Tennessee. Williams argues the stipulation failed

to fulfill the statutory requirements for a forum non conveniens dismissal. Section 11-11-

3(4)(b) states:

                                               9
       A court may not dismiss a claim under this subsection until the defendant files
       with the court or with the clerk of the court a written stipulation that, with
       respect to a new action on the claim commenced by the plaintiff, all the
       defendants waive the right to assert a statute of limitations defense in all other
       states of the United States in which the claim was not barred by limitations at
       the time the claim was filed in this state as necessary to effect a tolling of the
       limitations periods in those states beginning on the date the claim was filed in
       this state and ending on the date the claim is dismissed.

Thus, before a court may dismiss a case due to forum non conveniens, the defendants must

stipulate to a waiver of a statute-of-limitations defense.

¶28.   The supreme court has stated:

       [T]here is one classic instance when the doctrine of forum non conveniens will
       never be applied, and that is to dismiss a case if it is barred elsewhere by a
       statute of limitations, unless or until the defendant is willing to stipulate that
       he will waive the statute of limitation defense.

Shewbrooks v. A.C. & S. Inc., 529 So. 2d 557, 562 (Miss. 1988) (superceded by statute on

other grounds). In a separate instance, however, the supreme court found the inclusion of

the defendant’s waiver in the dismissal order, and a fifteen-day period between the dismissal

and the running of the statute of limitations provided a sufficient alternative forum for the

plaintiffs. Alston v. Pope, 112 So. 3d 422, 428 (¶¶22-24) (Miss. 2013).

¶29.   Williams argues the stipulation violated section 11-11-3(4)(b) when the order stated

“the Defendants will not assert a statute of limitations defense if the case is timely re-filed

in Tennessee.” Williams, however, argues it is impossible for her to timely file the suit in

Tennessee. Though the filing of a suit tolls the statute of limitations, Williams filed suit in

Mississippi on December 17, 2012, which was the last day Williams could have filed her suit

in Tennessee. Therefore, according to Williams, the stipulation and dismissal essentially



                                              10
provide no available alternate forum.

¶30.   Liberty Mutual counters that the stipulation complies with the statute, and the statute

only tolls the statute of limitations while the claim remains pending in Mississippi. This

means the statute of limitations in Tennessee takes effect almost immediately after the

dismissal in Mississippi. Liberty Mutual argues Williams should not be able to take

advantage of and use this fact to continue litigation in Mississippi or receive an extension in

Tennessee that she would not have otherwise.

¶31.   Unlike the plaintiffs in Alston, Williams lacked any additional time to timely file her

action in Tennessee. By Williams filing on the last possible day, the tolling of the statute of

limitations cannot apply when the statute of limitations already began to run. The Alston

court distinguished the plaintiffs in that case from the ones in Shewbrooks who lacked an

alternate forum. Id. at 428 (¶22). Therefore, the circuit court erred in dismissing the case

when no viable alternative forum existed for Williams.

¶32.   We find the circuit court abused its discretion in dismissing the complaint when

Williams lacked an alternate forum in which to file her suit due to the expiration of the

statute of limitations. Though the language of the stipulation complied with section 11-11-

3(4)(b), the effect of the dismissal did not. Because we find this issue dispositive, we decline

to discuss the forum non conveniens analysis. Accordingly, we reverse the circuit court’s

judgment dismissing Liberty Mutual and remand the case for further proceedings consistent

with this opinion.

¶33. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY IS
AFFIRMED IN PART, REVERSED AND RENDERED IN PART, AND REVERSED

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AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LIBERTY
MUTUAL.

     LEE, C.J., BARNES, ISHEE, MAXWELL, FAIR AND JAMES, JJ., CONCUR.
IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE
WRITTEN OPINION. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT
SEPARATE WRITTEN OPINION. WILSON, J., NOT PARTICIPATING.




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