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GULF CITY FISHERIES, INC. v. BOBBY KITCHENS

JANUARY 06, 1988

GULF CITY FISHERIES, INC.
v.
BOBBY KITCHENS, INC., AND G. H. BILLUE d/b/a ARK VALLEY TRADING AND TRANSPORT COMPANY, INC.



BEFORE HAWKINS, P.J., PRATHER & SULLIVAN, JJ.

SULLIVAN, JUSTICE, FOR THE COURT:

On January 8, 1981, Gulf City Fisheries, Inc., filed a declaration in the Circuit Court of Jackson County seeking damages from Bobby Kitchens, Inc. for an alleged breach of contract and from Ark Valley Trading and Transport Company, later amended to G. H. Billue d/b/a Ark Valley Transport for negligence.

In response to a motion by Ark Valley Trading and Transport Company, the circuit judge dismissed the declaration against both Billue and Bobby Kitchens, Inc. Gulf City Fisheries appeals this dismissal and assigns as error the following:

 I. The lower court erred in dismissing the declaration.

 Billue cross-appeals and assigns as error the following:

 I. The lower court erred in not sustaining Billue's motion to dismiss the amended declaration for want of in personam and subject matter jurisdiction; and

 II. The lower court erred in not dismissing the amended declaration because of the willful failure and refusal of GCF to comply with the court's August 3, 1985, order compelling GCF to produce the discovery requested by Billue.

 In September of 1979, Gulf City Fisheries through its President, Robert A. Graham and Bobby Kitchens, Inc., entered into an oral contract providing for transportation of a load of seafood to Missouri and Minnesota. Gulf City alleged that a material condition of the contract was that the seafood be transported by Argo Collier Trucks and that Bobby Kitchens, Inc., breached the contract by engaging Ark Valley Trading and Transport Company to transport the seafood. In

 addition, Gulf City alleges that Ark Valley was negligent in its maintenance of the seafood which was delivered late and in a spoiled condition. Gulf City claims damages in the amount of $103,794.23 due to the combined negligence of Bobby Kitchens, Inc., and Ark Valley.

 I.

 DID THE LOWER COURT ERR IN DISMISSING THE DECLARATION?

 The declaration was dismissed upon Ark Valley's motion to dismiss for want of jurisdiction based upon the trial judge finding that Gulf Coast Fisheries of Alabama, Inc., not Gulf Coast Fisheries, was the proper party to bring the suit.

 Gulf Coast Fisheries and Gulf Coast Fisheries of Alabama, Inc., an Alabama Corporation, not qualified to do business in Mississippi, share the same president and vice president. On October 26, 1979, the Chubb Group of Insurance Companies paid Gulf Coast Fisheries of Alabama's claim for loss which only Gulf Coast Fisheries of Alabama filed with the insurance company. At the time of the loss, only Gulf Coast Fisheries of Alabama was covered by the policy.

 After the declaration was dismissed, Gulf Coast Fisheries filed a motion to reconsider which the trial court denied; in his order the ...


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