Mercer v. MacKinnon

PRESENT: All the Justices
VIRGINIA LYNN MERCER, ADMINISTRATOR
OF THE ESTATE OF CLIFTON WOOD
OPINION BY
v. Record No. 180358 	JUSTICE STEPHEN R. McCULLOUGH
February 21, 2019
M. LORI-BELLE MacKINNON
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Stephen E. Sincavage, Judge
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

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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
∗ Mercer also sued the Canadian law firm that handled the litigation on MacKinnon’s
behalf in Prince Edward Island. Mercer settled her claim against the law firm, and we granted
her motion to withdraw the appeal as to the law firm.

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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

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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 § 1.03(a)(4), 13
U.L.A. 285 (1962). Code § 8.01-328.1(A)(4) provides that
A court may exercise personal jurisdiction over a person,
who acts directly or by an agent, as to a cause of action arising
from the person’s:
. . . .
4. Causing tortious injury in this Commonwealth by an act
or omission outside this Commonwealth if he regularly does or
solicits business, or engages in any other persistent course of
conduct, or derives substantial revenue from goods used or
consumed or services rendered, in this Commonwealth;
“Under well-established principles, an issue of statutory interpretation is a pure question
of law” that this Court reviews de novo. Conyers v. Martial Arts World of Richmond, Inc., 273
Va. 96, 104 (2007). “When the language of a statute is unambiguous, we are bound by the plain
meaning of that language.” Id.
The plain language of subdivision (A)(4) of Code § 8.01-328.1 yields several
conclusions. First, “the tortious injury must be caused by the act or omission outside the state
and not by the persistent course of conduct within.” Willis v. Semmes, Bowen & Semmes, 441
F. Supp. 1235, 1242 (E.D. Va. 1977); see also Founding Church of Scientology v. Verlag, 536
F.2d 429, 432 (D.C. Cir. 1976) (construing identical statutory language). That prerequisite is

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present here, because Mercer alleges that MacKinnon committed a series of acts in Canada that
caused an injury in Virginia.
Second, the term “persistent” is noteworthy because “it prescribes the kind of conduct
necessary to support jurisdiction.” Willis, 441 F. Supp. at 1241. “Persistent” has been defined as
“existing for a long or longer than usual time or continuously: enduring, lingering.” Webster’s
Third New International Dictionary 1686 (2002). “At a minimum, the plaintiff must prove that
the defendant maintained some sort of ongoing interactions with the forum state.” Willis, 441
F. Supp. at 1242.
Third, “[t]he word ‘other’ is also significant in that it refers back to regularly doing
business or soliciting business as persistent courses of conduct, thereby giving an indication by
example of what that phrase is intended to mean.” Id. at 1241-42.
Although we have not previously construed the phrase “persistent course of conduct,”
persuasive authority from other courts sheds some light on the scope and duration of the conduct
that is necessary to justify the assertion of personal jurisdiction over a litigant. For example, in
Willis, the plaintiff sued a Maryland law firm for conversion of a note. Id. at 1240. The firm had
represented the plaintiff in a Virginia bankruptcy action. The conversion allegedly took place in
Maryland. Id. at 1241. The United States District Court held that it lacked personal jurisdiction
over the firm for this claim. Id. at 1242. The Court reasoned that “while [the] defendants’
actions in Virginia [during the bankruptcy proceeding] satisfied the first three subsections of
Virginia’s long arm statute, this limited, discrete quantum of activity does not amount to
‘persistent conduct’ in this state within the meaning of the statute.” Id.; see also Louis v.
Flagship Airlines, Inc., No. 98-1753, 1999 WL 525947 (1st Cir. Feb. 5, 1999) (unpublished; for

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table disposition, see 181 F.3d 79) (two letters and two phone calls do not constitute a
“persistent course of conduct”).
Other cases illustrate the type of conduct that satisfies the statute. For example, in Bank
Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 126 (2nd Cir. 2002), the
Second Circuit held that a law firm’s rental of an apartment for eight years in Manhattan, which
was used both for vacations and firm business and was claimed by the firm as a business
expense, was a persistent course of conduct that allowed the suit to proceed in a New York
district court for a tort that allegedly occurred in Puerto Rico. The Fourth Circuit has held that
“bi-monthly mailings of [a trade] journal and annual mailings of its national directory, and of ‘a
call to convention’ to its 1,150 Virginia members, and annually distribut[ing] operating manuals
for state councils and local groups including those in Virginia” were sufficient to constitute a
persistent course of conduct. First Am. First, Inc. v. Nat’l Ass’n of Bank Women, 802 F.2d 1511,
1514 (4th Cir. 1986); see also Blue Ridge Bank v. Veribanc, Inc., 755 F.2d 371, 373-74 (4th Cir.
1985) (receipt of 57 orders for analyses from customers in Virginia, which were sent to Virginia
and paid for by Virginia customers sufficient to establish a persistent course of conduct in
Virginia).
Mercer relies on the following facts to establish a persistent course of conduct:
(1) Sometime in December 2014, MacKinnon came to Virginia and removed Eleanor
to Canada. Complaint ¶12.
(2) MacKinnon had a new power of attorney drawn up for Eleanor naming MacKinnon as the
attorney-in-fact for Eleanor, and used the power of attorney to remove Clifton’s name from one
or more bank accounts that had been jointly held by Eleanor and Clifton, and to take control of
Eleanor’s retirement accounts. Complaint ¶13.
(3) MacKinnon used the power of attorney to have herself named as the death beneficiary on at
least one of the couple’s bank accounts. Complaint ¶15.

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(4) MacKinnon filed a petition in the Prince William County Circuit Court, seeking appointment
as Eleanor’s guardian and conservator. Complaint ¶16.
(5) MacKinnon availed herself of the jurisdiction of the Prince William County Circuit Court
voluntarily and appeared in that Court regularly, by counsel and in person, on various matters,
including a trial on the merits. Complaint ¶18.
(6) MacKinnon appealed the judgment rendered by the Prince William County Circuit Court to
this Court. Complaint ¶20.
These allegations do not rise to the level of “persistent course of conduct” within the
meaning of the statute. MacKinnon’s pre-litigation contact with Virginia consisted of traveling
to Virginia, having certain legal documents drawn up, and returning with her aunt to Canada.
Her other contact with Virginia was for the limited purpose of litigating a single case.
MacKinnon’s contacts with Virginia did not “exist[] for a long or longer than usual time or
continuously,” and they were not “enduring” or “lingering.” Webster’s Third New International
Dictionary at 1686. Similar to the law firm in Willis, MacKinnon’s contacts with Virginia
constituted a “limited, discrete quantum of activity.” 441 F. Supp. at 1242. These facts also
contrast with the cases, noted above, where the courts found activity sufficient in scope and
duration to rise to the level of a persistent course of conduct.
CONCLUSION
Because MacKinnon’s activities were not sufficient in scope and duration to constitute a
“persistent course of conduct” within the intendment of Code § 8.01-328.1(A)(4), the judgment
of the circuit court granting dismissal of the actions for lack of personal jurisdiction will be
affirmed.
Affirmed.