January 21, 2010
GEOFFREY J. CHARLTON, APPELLANT,
JIMMY MOND AND MIGUEL MESQUITA, APPELLEES.
Appeal from the Superior Court of the District of Columbia (CAB 8771-02) (Hon. Mary A. Gooden Terrell, Trial Judge).
The opinion of the court was delivered by: Kramer, Associate Judge
Argued November 3, 2009
Before REID and KRAMER, Associate Judges,and KING, Senior Judge.
Geoffrey Charlton appeals the dismissal of appellee Mond for lack of personal jurisdiction, as well as a grant of summary judgment on his contract and civil conspiracy claims against appellee Mesquita. Because Charlton fails to identify any error by the trial court or present a legal basis to justify reversal on any other ground, we affirm.
I. Factual Summary
This case comes before us after a six-year long course through the Superior Court. In 2002, appellee Mond engaged appellant Charlton to renovate his home. Appellee Mesquita worked as Charlton's carpentry sub-contractor on various projects, including the Mond home. Charlton fired Mesquita on July 10, 2002. Mond terminated Charlton's contract in September 2002. Charlton then sued Mond and Mesquita for breach of contract, civil conspiracy and defamation. He alleged that Mesquita spread "hateful false information . . . for the purpose of destroying [Charlton's] contractual relationship[s]," first to Mond and later, in conjunction with Mond, to Charlton's other business associates.
Mond, a Maryland resident, filed a motion to dismiss for lack of personal jurisdiction, which the trial court denied. Thereafter, Mond filed a counterclaim, along with a motion to reconsider the denial of the motion to dismiss, which the trial court again denied. Mesquita also counterclaimed. Fourteen months later, after discovery was concluded, the trial court granted summary judgment to both Mond and Mesquita on the breach of contract and conspiracy claims, but denied summary judgment on the defamation claim and the counterclaims. At the same time, the court allowed Mond to file supplemental briefs on the jurisdictional issue. Charlton voluntarily dismissed his remaining defamation claim against Mesquita without prejudice but continued to pursue his claim against Mond. Meanwhile, Mond once more renewed his motion to dismiss for lack of personal jurisdiction, which the court finally granted. Later, a jury trial solely on Mesquita's counterclaim took place, with the jury returning a verdict for Mesquita.
Charlton contends that the trial court erred in ruling that it had no jurisdiction over Mond and asserts that Mesquita should not have been granted summary judgment. He also alleges that "the orders and judgments issued by the trial court were plainly erroneous, plainly defective, and/or contrary to law."*fn1
We review both dismissal and summary judgment de novo.*fn2 Charlton bases his claim that the Superior Court had personal jurisdiction over Mond solely on records of telephone calls between Mond and Mesquita, neither of whom is a District of Columbia resident, as well as between Mond and other parties who are District residents. Mond made the calls prior to and on the day he terminated Charlton's contract. Charlton urges us to interpret these telephone records in the light most favorable to him*fn3 and to conclude that they constitute sufficient grounds for personal jurisdiction over Mond. Alternatively, he argues that Mond waived his jurisdictional defense by filing a counterclaim. We hold that jurisdiction was improper in the first instance and that the trial judge erred in denying Mond's first motion to dismiss. We also hold that when a defendant first files to dismiss and the court denies the motion, the defendant does not waive an objection to the court's jurisdiction by later filing a counterclaim.
A. The Superior Court Lacked Personal Jurisdiction Over Mond
Charlton relies on the RESTATEMENT (SECOND) OF TORTS § 577(1) (1977)*fn4 to support the proposition that "the situs of the defamation, venue and jurisdiction, is (sic) where the defamatory information was received." Though the situs of the alleged injury was certainly in the District because the allegedly defamatory material reached some who were indisputably District residents, we have found no case that would allow personal jurisdiction over Mond based solely on that fact. Nor do the cases Charlton relies upon support this position.*fn5 Had Charlton claimed personal jurisdiction over Mond as one who "caus[ed] tortious injury in the District of Columbia by an act or omission in the District of Columbia,"*fn6 his argument would have had more merit. But he cannot so argue, since Mond's phone calls originated in Maryland. Instead, Charlton must prove jurisdiction*fn7 under D.C. Code § 13-423 (a)(4), which requires additional contacts between a defendant and the forum when the predicate act to the alleged injury originates outside the District.*fn8
Therefore, the proposition that the situs of a tort is located in the jurisdiction where the damage occurred, while true, does not help Charlton's jurisdictional argument.
Because there is no basis for personal jurisdiction based on the phone calls themselves,*fn9 Charlton needed to prove additional contacts between Mond and the District of Columbia. But even after discovery had been completed, Charlton failed to present evidence of any such contacts. The cases that Charlton relies on fail to support his argument.*fn10 The closest case on point is Blumenthal v. Drudge, where the court held that jurisdiction existed over Drudge, a California resident who was accused of defaming a White House staffer by publishing a story about him on his web site.*fn11 In holding so, however, the court did not rest its decision solely on the fact that the defamatory story was available to or directed at District of Columbia residents. Instead, it concentrated on the additional multiple and persistent contacts between the defendant and the forum.*fn12 Charlton misinterprets Drudge when he argues that any defendant who "knows the effect of his actions will be suffered in a particular forum . . . should also expect to be brought into court there."*fn13 Here, both Charlton and Mond were Maryland residents. Charlton's business was registered in Maryland. The contract was negotiated and executed in Maryland. Charlton's work on Mond's house took place entirely within Maryland pursuant to licenses and permits issued by Maryland authorities. Other than the allegedly defamatory phone calls themselves, which originated in Maryland, Charlton has presented no evidence of persistent conduct by Mond in the District. Thus, based on the facts before us, the proper forum to resolve this dispute is a Maryland court.
B. Mond did not Consent to the Jurisdiction of the Court by Filing a Counterclaim
Charlton also argues that Mond's counterclaim constituted a waiver of his jurisdictional objection. He relies on Overby v. Barnett, where the trial court sua sponte dismissed a contract claim pursuant to an arbitration provision after the defendants had filed a counterclaim.*fn14 In Overby, we held that the parties waived their right to arbitrate by filing the counterclaim, and that the trial court had erred by dismissing for lack of jurisdiction. But Overby is not on point because it addressed the subject matter jurisdiction of the court.*fn15 Here the issue is personal jurisdiction over Mond. Though Charlton fails to convince us that the counterclaim signified Mond's consent to the power of the court, the issue warrants further analysis.
Though Charlton fails to cite them, our precedents hold that filing a counterclaim operates as a waiver of an objection to personal jurisdiction.*fn16 The waiver does not depend on whether the counterclaim was permissive.*fn17 Thus, Mond's argument that he had "no choice but to file a counterclaim . . . to avoid res judicata and statute of limitations issues in Maryland" lacks merit. Nevertheless, we are convinced that there was no waiver here. First, we note that in every case that we could find which has addressed this issue, defendants raised a jurisdictional defense after counterclaiming, unlike Mond, who objected to the court's lack of jurisdiction before filing a counterclaim.*fn18 In addition, as we have already explained, the trial court erred when it denied Mond's original motion to dismiss.*fn19 Moreover, Mond could have properly moved to dismiss for lack of personal jurisdiction concurrently with filing a counterclaim without affecting a waiver.*fn20
Finally, we have suggested that a denied motion to dismiss preserves the jurisdictional issue on appeal, even when the defendant counterclaims in the interim.*fn21 Therefore, in a case such as this, where the defendant first claims a lack of jurisdiction and later files a counterclaim, he has effectively registered his dissent to the court's jurisdiction.*fn22 We hold that Mond did not consent to the court's power over his person by counterclaiming after he had moved to dismiss for lack of personal jurisdiction.*fn23
III. The Contract and Civil Conspiracy Claims
The trial court disposed of Charlton's contract and civil conspiracy claims by granting Mesquita's motion for summary judgment.*fn24 We agree that no reasonable juror could find for Charlton on the breach of contract claim because Mesquita was not a party to either of the contracts between Mond and Charlton. Non-parties owe no contractual duty to the contracting parties.*fn25
Therefore, the trial court properly granted summary judgment to Mesquita with respect to the contract claim.
With respect to the conspiracy claim, Charlton argues that "Mond's phone records and [Charlton's own] affidavits," as well as "the presence of Mesquita at Mond's home . . . raise strong inferences of genuine issues of material fact as to the existence of a conspiracy." Charlton, however, does not cite a single case to support his position. The sum of his evidence of a conspiracy (apart from his own affidavits) are phone records indicating that Mond made phone calls to Mesquita and other parties. Charlton failed to furnish any other evidence of the agreement, if any, appellees reached when they contacted each other. Despite having ten months to conduct discovery, Charlton did not even depose Mond or Mesquita.*fn26 Lacking any evidence, Charlton now asks "[w]hat else could they have been talking about?" Such conclusory conjecture does not carry Charlton's burden of proof and does not suffice to overcome summary judgment.*fn27
IV. The Defamation Claim
Charlton voluntarily dismissed his remaining defamation claim against Mesquita without prejudice. He now claims that the trial court misconstrued his motion to dismiss, which was meant to include Mesquita's counterclaim as well as his own claims. He asserts that the trial court failed to grant the relief he requested. The trial judge's order does show that she re-wrote the requested relief. This does not suffice, however, to prove that the judge misconstrued the relief Charlton sought. Almost all of the judge's previous orders exhibit corrections and writings in her own hand.At most, this shows that the trial judge made last minute changes to documents the parties had prepared for her beforehand. More importantly, the record does not indicate that Charlton objected to the order or moved the judge to reconsider. In fact, as far as we can ascertain, this is the first time he contends that the dismissal of the defamation claim was involuntary. Had the judge so seriously misconstrued Charlton's motion, the time to object was then, not now, more than four years later. By going to trial on Mesquita's counterclaim, which he now claims he did not mean to, he waived any objection he may have had to the order that retained the counterclaim while dismissing his claims.
In conclusion, because the trial court lacked personal jurisdiction over appellee Mond and since Charlton can show no other error by the trial court, we Affirm.