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
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.
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 ...