Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mercer v. MacKinnon

Supreme Court of Virginia

February 21, 2019

VIRGINIA LYNN MERCER, ADMINISTRATOR OF THE ESTATE OF CLIFTON WOOD
v.
M. LORI-BELLE MacKINNON

          FROM THE CIRCUIT COURT OF LOUDOUN COUNTY Stephen E. Sincavage, Judge

          OPINION

          STEPHEN R. McCULLOUGH, JUSTICE

         Virginia Lynn Mercer appeals from a judgment of the Circuit Court of Loudoun County granting a motion to dismiss for lack of personal jurisdiction. We conclude that the facts do not establish personal jurisdiction over the defendant under the only basis presented to us, the "persistent course of conduct" clause of Virginia's long arm statute. Code § 8.01-328.1(A)(4). Consequently, we will affirm the judgment below.

         BACKGROUND

         The facts are drawn from the allegations in the complaint. Mercer is the daughter of Clifton Wood and the step-daughter of Eleanor Grace Wood. Eleanor was a dual citizen of the United States and Canada. Lori-Belle MacKinnon, a Canadian citizen and resident, is Eleanor's niece.

         In 2014, Mercer served as the primary caretaker for Clifton and Eleanor. In December 2014, MacKinnon traveled to Virginia and, while Mercer was occupied with settling Clifton in a nursing home facility, removed Eleanor to Canada. While in Virginia, MacKinnon had a new power of attorney drawn up for Eleanor. This power of attorney named MacKinnon as the attorney-in-fact for Eleanor. MacKinnon then used this power of attorney to remove Clifton's name from one or more bank accounts that had been jointly held by Eleanor and Clifton. MacKinnon thus took control of Eleanor's retirement accounts. MacKinnon also used the power of attorney to have herself named as the death beneficiary on at least one of the couple's bank accounts.

         Mercer and MacKinnon each filed petitions with the Prince William County Circuit Court seeking to be appointed as the guardian and conservator for Eleanor. The cases were consolidated. The court entered an interim order granting Mercer control over certain assets and granting MacKinnon control over other assets and bank accounts. Both Mercer and MacKinnon were required to provide regular accountings to a guardian ad litem appointed by the Court. MacKinnon never challenged the jurisdiction of the Prince William County Circuit Court and appeared in that court regularly, by counsel and in person.

         Following a trial on the merits, the Prince William County Circuit Court appointed Mercer as the guardian for Eleanor. The Court bifurcated the issue of conservatorship on the grounds that it necessarily touched on the rights of Clifton, and therefore the Court required input from a separate guardian ad litem who it appointed to represent him. MacKinnon filed an appeal to this Court, challenging the final order appointing Mercer as the guardian for Eleanor. This Court refused the petition for appeal on March 15, 2016.

         In May 2015, MacKinnon filed an action in Canada seeking to have herself declared guardian and conservator for Eleanor. On July 20, 2016, Eleanor died intestate. Mercer is the administrator of her estate.

         In June 2017, Mercer filed a complaint in the Circuit Court of Loudoun County against MacKinnon. [*] Mercer, relying on a number of legal theories, alleged that MacKinnon had illegally used assets from accounts belonging to Eleanor and Clifton to fund the parallel litigation in Canada. In response, MacKinnon filed a "plea in bar and motion to dismiss for lack of personal jurisdiction by special appearance." She asserted that "[t]he allegations made by Mercer in the Complaint do not support or authorize the permitted exercise of in personam jurisdiction over MacKinnon under any enumerated provision of the Long-Arm Statute."

         In the circuit court, Mercer advanced several grounds for her contention that the court could properly exercise personal jurisdiction over MacKinnon. She cited two provisions of the long arm statute, Code §§ 8.01-328.1(A)(1) and (A)(3), contended that the fact that this was a probate matter allowed the court to proceed and, finally, because MacKinnon had voluntarily subjected herself to the jurisdiction of Virginia through her actions in the Prince William County Court, asserted that the court could exercise jurisdiction over MacKinnon. After hearing argument on the motion, the circuit court granted MacKinnon's motion to dismiss, finding that "the allegations do not permit the exercise of in personam jurisdiction over her as a non-resident of Virginia and as a Canadian citizen." From the bench, the court indicated that Code § 8.01-328.1(A)(4) constituted the only viable ground for personal jurisdiction over MacKinnon, but the court concluded that the facts did not support a finding that MacKinnon engaged in a "persistent course of conduct in Virginia."

         ANALYSIS

         Mercer's sole assignment of error is that the circuit court "erred in ruling that MacKinnon did not engage in a 'persistent course of conduct' in the forum jurisdiction and was not therefore subject to the [circuit] court's in personam jurisdiction." No assignment of error relies on any other provision of law. Accordingly, although Mercer raised alternative grounds for the exercise of personal jurisdiction over MacKinnon in the circuit court proceedings on the plea in bar and motion to dismiss, we confine our review on appeal to whether the circuit court could exercise jurisdiction over MacKinnon under the "persistent course of conduct" provision of the long arm statute, Code § 8.01-328.1(A)(4). See Yeatts v. Murray, 249 Va. 285, 290 (1995) ("'The purpose of assignments of error is to point out the errors . . . on which appellant intends to ask a reversal of the judgment, and to limit discussion to these points.'" (emphasis added)).

         Virginia's "long arm" statute, Code § 8.01-328.1, is based on the Uniform Interstate and International Procedure Act drafted by the National Conference of Commissioners on Uniform State laws in 1962. See Uniform Interstate & International Procedure Act ยง ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.