S & M Trucking, LLC v. Rogers Oil Co. of Columbia, Inc.

• Decision Date: 07 June 2016
• Docket Number: No. 2015–CA–00526–COA.,2015–CA–00526–COA.
• Citation: S & M Trucking, LLC v. Rogers Oil Co. of Columbia, Inc., 195 So.3d 217 (Miss. App. 2016)
• Court: Mississippi Court of Appeals
• Parties: S & M TRUCKING, LLC, Appellant. v. ROGERS OIL COMPANY of Columbia, Inc., Appellee.

195 So.3d 217

S & M TRUCKING, LLC, Appellant.

v.ROGERS OIL COMPANY of Columbia, Inc., Appellee.

No. 2015–CA–00526–COA.

Court of Appeals of Mississippi.

June 7, 2016.

Daniel Myers Waide, Starkville, attorney for appellant.

Benjamin Alan Snow, Hattiesburg, attorney for appellee.

Before IRVING, P.J., FAIR and WILSON, JJ.

WILSON, J., for the Court:

¶ 1. Rogers Oil Company of Columbia Inc. (Rogers Oil) filed suit against S & M Trucking LLC (S & M) in circuit court to collect an alleged debt. After it was unable to serve S & M's agent or either of its members, Rogers Oil attempted service through the Secretary of State pursuant to Mississippi Code Annotated section 79–35–13(b) (Rev.2013). S & M did not answer within thirty days, and Rogers Oil then obtained a default judgment. When S & M later learned of the default judgment, it moved to set it aside, arguing that it was void due to improper service of process. The circuit court denied S & M's motion, and S & M appealed. We agree with S & M that, on the facts of this case, service pursuant to section 79–35–13(b) was improper and that the default judgment was void and must be set aside for that reason. Accordingly, we reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶ 2. Rogers Oil sells fuel. It is headquartered in Columbia (Marion County). S & M is a small trucking company organized as a limited liability company. It has two members, Stephanie and Michael Lee, who are married. S & M was a customer of Rogers Oil.

¶ 3. On May 21, 2013, Rogers Oil filed a complaint against S & M in the Marion County Circuit Court. Rogers Oil alleged that it had furnished S & M goods and services on an open account and that S & M had failed to pay a balance due of $23,258.48. The complaint sought to recover that amount and attorney's fees of $5,645.26. The complaint alleged that S & M's principal place of business was at 902 Longwood Place in Clinton and that it could be served through its registered agent, Cheryl Green, at 824 McCluer Road in Jackson.

¶ 4. The circuit clerk issued a summons to counsel for Rogers Oil that same day directed to “S & M Trucking, LLC c/o Cheryl Green, registered agent,” at 824 McCluer Road in Jackson. The record includes a proof of service form that was executed by process server Gary Windham on June 5, 2013, and filed with the court on February 28, 2014. Windham was unable to serve Green, but he did not check the line for “UNABLE TO SERVE”; instead, he handwrote on the form, “Vanessa Buckley lives here now.”

¶ 5. On June 10, 2013, the clerk issued an “alias summons” to counsel for Rogers Oil directed to “S & M Trucking, LLC c/o Michael Lee, member, or any other member or officer” at 902 Longwood Place in Clinton. On July 22, 2013, Rogers Oil filed a proof of service executed by Windham on July 16, 2013, that indicated that he was unable to serve Stephanie Lee with the summons.

¶ 6. On September 18, 2013, the court entered an order extending the time to serve S & M for 180 additional days. The record does not reflect that Rogers Oil filed any motion setting forth its efforts to effect service or why the extension should be granted. On December 3, 2013, Rogers Oil filed another proof of service indicating that Windham was again unable to serve S & M with the alias summons.

¶ 7. Rogers Oil subsequently filed an affidavit from Chris Walker of the Barnett Group, a private investigations firm. According to Walker, he was hired “after service of process through a standard process server [ (i.e., Windham) ] was unsuccessful.” Regarding his own efforts to effect service, Walker stated, in full, as follows: “That after several months of continued pursuit of the registered agent or any other officer of S & M Trucking, LLC (Michael Lee and Stephanie Lee), the Barnett Group has been unable to serve process on any individual with requisite authority to accept process on behalf of S & M Trucking, LLC.”

¶ 8. Months later, Rogers Oil filed an invoice from the Barnett Group that purportedly reflects Walker's efforts to serve S & M. However, the invoice was not explained or verified by any affidavit. Rather, it was simply attached as an exhibit to a response to a motion. In any event, the invoice indicates that in December 2013 and January 2014, Walker went to the Lees' Longwood Place address four times; went to other unspecified addresses associated with the Lees on two occasions; went to Michael Lee's parents' home and “[c]anvass[ed] the area and talk[ed] with neighbors”; and performed unspecified “online research” and research into marriage and divorce records. The invoice also reflects “[p]hone calls made to Michael Lee” in February 2014, but it does not indicate the result of the calls.

¶ 9. On February 28, 2014, the clerk issued an alias summons to counsel for Rogers Oil directed to “S & M Trucking, LLC c/o Delbert Hosemann, Secretary of State.” On March 6, 2014, the Secretary of State sent the complaint and summons to S & M by certified mail at 824 McCluer Road. The Secretary of State's cover letter incorrectly shows the address as being in Clinton with a Clinton zip code. On the return receipt, “Clinton” and the Clinton zip code are scratched through and “Jackson” is handwritten in underneath with no zip code. The complaint and summons were returned to the Secretary of State unclaimed. The record does not reflect who made the handwritten changes.

¶ 10. On April 7, 2014, Rogers Oil filed an application for entry of a default against S & M. The clerk entered the default the same day. The same day, Rogers Oil also filed a motion for a default judgment in the amount of $28,903.74, consisting of the alleged debt of $23,258.48 and attorney's fees of $5,645.26. The same day, the court entered an order granting a default judgment in that amount¹ plus eight percent post-judgment interest.

¶ 11. On August 5, 2014, Rogers Oil filed a motion for a judgment debtor examination. The motion alleged that S & M had not paid the default judgment and requested an order compelling a representative of S & M to appear for an examination and produce documents such as bank statements and tax returns. Two days later, the court granted Rogers Oil's motion and set October 21, 2014, as the date for the judgment debtor exam. The order also directed the clerk to issue a citation “directing and commanding the representative of S & M” to appear and produce documents. Only eight days later—on August 15, 2015—Rogers Oil personally served Stephanie Lee with the citation to appear at the judgment debtor exam.

¶ 12. The court subsequently entered an agreed order continuing the judgment debtor exam to November 10, 2014. The order also reflected that S & M's attorney was thereby entering an appearance in the case.

¶ 13. On November 25, 2014, S & M filed a motion to set aside the default judgment under Mississippi Rule of Civil Procedure 60(b). S & M argued that the judgment was void because it was never served with process. S & M also argued that the judgment was void for lack of jurisdiction because venue was not proper in Marion County.² S & M attached a proposed answer to its motion. In its answer, S & M alleged that it was administratively dissolved and that Green no longer resided in Mississippi. S & M admitted that it had purchased fuel from Rogers Oil's fuel station in Covington County, but it denied that it owed any debt.

¶ 14. In response, Rogers Oil argued that S & M's motion to set aside the default judgment was untimely under Rule 60(b) ; that S & M had waived any argument based on improper venue or insufficient service; that the judgment was not void; that service through the Secretary of State was proper pursuant to section 79–35–13(b) ; that venue was proper; and that the court had jurisdiction over the case. Rogers Oil also filed a motion for a writ of execution against S & M's property, including its two trucks.

¶ 15. On February 25, 2012, the circuit court denied S & M's motion to set aside the default judgment. The court found that S & M “was adequately and properly served with process according to law”; that the court had jurisdiction over the parties and subject matter; and that S & M's Rule 60(b) motion was untimely. In the same order, the court denied Rogers Oil's motion for a writ of execution. S & M then filed a timely notice of appeal.

DISCUSSION

¶ 16. “[T]he grant or denial of a 60(b) motion is generally within the lower court's discretion, unless the judgment in question is deemed to be void.” Evans v. Oberon Holding Corp., 729 So.2d 825, 827 (¶ 5) (Miss.Ct.App.1998) (citing Sartain v. White, 588 So.2d 204, 211 (Miss.1991) ). “If a default judgment is void, the trial court has no discretion and must set the judgment aside.” McCain v. Dauzat, 791 So.2d 839, 842 (¶ 7) (Miss.2001). In the absence of “proper service of process,” the court lacks jurisdiction, so any default judgment that it enters is void. Id. ; accord Evans, 729 So.2d at 827–28 (¶¶ 5–9). “Sufficiency of service of process is a jurisdictional issue, which is reviewed de novo.” BB Buggies Inc. v. Leon, 150 So.3d 90, 95 (¶ 6) (Miss.2014).

¶ 17. A motion to set aside a default judgment as void due to improper service of process is governed by Mississippi Rule of Civil Procedure 60(b)(4).³ See Evans, 729 So.2d at 827 (¶ 5). The first three subsections of Rule 60(b) require that a motion to set aside a judgment be filed not later than six months after the judgment is entered, but subsection (4) has no such time limit. Overbey v. Murray, 569 So.2d 303, 306 (Miss.1990). Moreover, although Rule 60(b) indicates that such a motion should be filed “within a reasonable time,” our “[Supreme] Court previously has recognized that, essentially, there can be no time limitation for relief from a void judgment as ‘no amount of time or delay may cure a void judgment.’ ” O'Neal v. O'Neal, 17 So.3d 572, 575 (¶ 14) (Miss.2009) (quoting Kirk v. Pope, 973 So.2d 981, 988 (¶ 19) (Miss.2007) ; Overbey, 569 So.2d at 306 ); accord,...