Triple" C" Transport, Inc. v. Dickens, 2002-IA-01094-SCT.

• Decision Date: 22 April 2004
• Docket Number: No. 2002-IA-01094-SCT.,2002-IA-01094-SCT.
• Parties: TRIPLE "C" TRANSPORT, INC. and Herbert Henry v. Richard DICKENS.
• Court: Mississippi Supreme Court

870 So.2d 1195

TRIPLE "C" TRANSPORT, INC. and Herbert Henry v. Richard DICKENS.

No. 2002-IA-01094-SCT.

Supreme Court of Mississippi.

April 22, 2004.

David M. Sessums, attorney for appellants.

Grady L. McCool, Joseph E. Roberts, Jr., Eugene Coursey Tullos, attorneys for appellee.

Before SMITH, C.J., GRAVES and DICKINSON, JJ.

DICKINSON, Justice, for the Court.

¶ 1. This interlocutory appeal requires us to evaluate the progression of events following a vehicular accident to determine whether the plaintiff is barred by the statute of limitations from pursuing claims against one or both defendants.

BACKGROUND

¶ 2. In Mississippi, there exist two unrelated companies with similar "Triple `C'" names. One is Triple "C" Transport, Inc., owned by Clyne Buffington, P.O. Box 346, New Augusta, MS. The other is Triple "C" Trucking, Inc., whose agent for process is Charles Richards, 142 West Pemble Road, Merigold, Mississippi, 38759.

¶ 3. On October 6, 1994, an accident occurred involving a car driven by Richard Dickens and a truck owned by Triple "C" Transport, Inc. The accident report lists Herbert Henry as the driver of the truck; "Triple C Trucking" as Henry's employer, and Clyne Buffington as the owner of the truck.

¶ 4. Following the accident, Dickens employed counsel who, on October 11, 1994, sent a letter to Henry and "Triple `C' Trucking," mailed to Triple "C" Transport, Inc.'s address in New Augusta. The letter advised of counsel's representation of Dickens.

¶ 5. On October 17, 1994, Great River Insurance Company sent Dickens' counsel a letter acknowledging receipt of the October 11th letter of representation. This and other letters from Great River referred to their insured as "Triple `C' Trucking."

¶ 6. On July 14, 1997, following unsuccessful settlement discussions with Great River, Dickens filed suit in the Circuit Court of Smith County, naming "Triple `C' Trucking Company and Herbert Henry" as defendants. Paragraph 2 of the complaint states:

That the Defendant, Triple "C" Trucking Company, is a resident corporation of the State of Mississippi and may be served with process by serving its registered agent for service of process Charles Richard, 142 West Pemble Road, Marigold, Mississippi 38759.

¶ 7. In an attempt to serve process on Triple "C" Transport, Inc., Dickens sent the complaint and summons via certified mail, addressed to Charles Richards, 142 West Pemble Road, Merigold, Mississippi, 38759. Charles Richard signed for the certified mail on September 15, 1997.

¶ 8. On or about September 18, 1997, an attorney for Triple "C" Trucking sent a letter to counsel for Dickens, stating that Triple "C" Trucking Company would be filing bankruptcy. The letter also stated, "Mr. Richard further advises me that the Codefendant, Herbert Henry, does not drive for the corporation and he does not know who this person is."

¶ 9. October 6, 1997, marked three years following the accident. As of that date, Triple "C" Transport had not been named as a defendant, and service of process had not been attempted on Henry or Triple "C" Transport, Inc., in New Augusta.

¶ 10. On January 29, 1998, Dickens filed a Motion to Partially Lift the Automatic Stay in the Triple "C" Trucking bankruptcy proceeding. For reasons unrevealed by the record, it appears that no one involved in the Triple "C" Trucking bankruptcy proceeding informed counsel for Dickens that Triple "C" Trucking had not been involved in the subject accident and, on March 4, 1998, the automatic stay was lifted to the extent of liability insurance coverage.

¶ 11. Counsel for Dickens mailed, via certified mail, the summons and a copy of the complaint, to Henry, who signed for it on March 23, 1998.

¶ 12. On April 28, 1998, Henry filed a Motion to Dismiss, alleging insufficient service of process and improper venue. Henry's motion pointed out that the "Plaintiff first issued and served Summons on Defendant Henry more than eight months after filing his Complaint."

¶ 13. Thereafter, finally realizing that two Triple "C" companies existed and that Triple "C" Transport in New Augusta was the proper Triple "C" defendant to be sued, counsel for Dickens sent a copy of the complaint, via certified mail, addressed to Triple "C" Trucking Company, Mr. Clyne Buffington, Owner; P.O. Box 346, New Augusta, Mississippi 39462. The certified mail was signed for on June 19, 1998.

¶ 14. On September 20, 1999, defendants filed separate answers, both raising the affirmative defense of statute of limitations, and on December 26, 2001, both defendants filed motions to dismiss based upon Miss.Code Ann. § 15-1-49 (Rev. 2003). These motions were denied by order dated June 24, 2002, and it is from this order that interlocutory appeal was granted. See M.R.A.P.5.

DISCUSSION

Standard of Review.

¶ 15. "A trial court's finding of fact on the existence of good cause for the delay in service of process has been deemed `a discretionary ruling ... and entitled to deferential review' on appeal." Holmes v. Coast Transit Auth., 815 So.2d 1183, 1185 (Miss.2002) (citation omitted). "When reviewing fact-based findings, we will only examine whether the trial court abused its discretion and whether there was substantial evidence supporting the determination. However, a decision to grant or deny an extension of time based upon a question of law will be reviewed de novo." Id.

¶ 16. In this case, there are two defendants, each with a separate argument as to why the statute of limitations prevents further litigation of the appellee's claims.

The Claims Against Triple "C" Transport.

¶ 17. Upon review of the record, we can only conclude that Dickens filed suit against the wrong defendant. He allowed the statute of limitations to run before attempting to cure the error by having the complaint and summons (which continued to name the incorrect defendant) served upon the company which should have been named as defendant in the first instance.

¶ 18. When the accident occurred, Dickens can claim that he was misled by the accident report because in listed "Triple `C' Trucking" as Henry's employer. However, the accident report also named "Clyne Buffington" as the owner of the truck, and the address for both Buffington and Henry was listed in New Augusta, MS.

¶ 19. Counsel for Dickens was aware of the New Augusta addresses. He mailed a letter to Herbert Henry and "Triple `C' Trucking" at their respective New Augusta addresses. When filing suit, however, counsel for Dickens apparently searched the corporate records in the office of the Secretary of State, and discovered "Triple `C' Trucking Company"¹ with an address in Merigold, Mississippi. The complaint names Charles Richard as the registered agent. Counsel for Dickens apparently did not notice at that time that also listed was Triple "C" Transport Company, with an address in New Augusta, and with a registered agent named Clyne Buffington.

¶ 20. Once suit was filed and served upon the wrong Triple "C" company, counsel for Dickens received a letter from Levingston & Levingston, P.A., the attorneys preparing a bankruptcy petition for Triple "C" Trucking Company. In that letter, dated September 18, 1997 (eighteen days before the three-year anniversary of the accident), counsel for Dickens was informed, "Mr. Richard further advises me that the Codefendant, Herbert Henry, does not drive for the corporation and he does not know who this person is." Any equitable or "fairness" argument which may have been available to Dickens was, at that point, lost by his failure to investigate further. The record is silent as to any follow-up letters or phone calls regarding this revelation, which should have been quite disturbing just days before the running of the statute of limitations.

¶ 21. The complaint was served via certified mail upon the registered agent for Triple "C" Trucking Company. This is another unfortunate error which cannot be cured by equitable or "fairness" arguments. Service of process may not be had by certified mail upon an in-state defendant. Rule 4 of the Mississippi Rules of Civil Procedure, provides that process "may be had upon a domestic or foreign corporation ... by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process." Miss. R. Civ. P. 4(d)(4). Certified mail may be used to serve process upon persons "outside this state." Miss. R. Civ. P. 4(c)(5). The comment to that rule provides that "[t]he certified mail procedure is not available to serve a person within the state."

¶ 22. Thus, the sending of the complaint and summons, via certified mail, to the wrong corporation did not serve to bring Triple "C" Transport Company into court on September 15, 1997.

¶ 23. Dickens's counsel argues that he realized, on or about June 19, 1998, that two Triple "C" Trucking companies existed and that the New Augusta company was the correct defendant. He further points out that Dickens then sent a copy of the complaint via certified mail delivery to Triple "C" Trucking Company, Mr. Clifford Buffington, owner, P.O. Box 346, New Augusta, Mississippi 39462. This presents several problems for Dickens.

¶ 24. First, Dickens made no effort to amend the complaint to name the correct defendant.

¶ 25. Second, the record does not indicate that a summons was issued and included with the complaint which was served upon Buffington.

¶ 26. Third, whatever was served, was served via certified mail, which was no service at all upon an in-state defendant.

¶ 27. Finally, the attempted service occurred more than three years following the accident.

¶ 28. In view of these incurable problems, the statute of limitations expired prior to any claim being filed against Triple "C" Transport Company, and any such claim is now barred.

Herbert Henry.

¶ 29. The analysis regarding Henry is slightly different, but requires the same conclusion.

¶ 30. The...