Burleson v. Lathem, 2006-CA-02025-SCT.

Citation968 So.2d 930
Decision Date15 November 2007
Docket NumberNo. 2006-CA-02025-SCT.,2006-CA-02025-SCT.
CourtUnited States State Supreme Court of Mississippi
PartiesMary P. BURLESON as the Personal Representative of Bobby (NMN) Shiers, Jr., Deceased, for the Benefit of Ashley Nicole Shiers, Rebecca Lee Shiers, Brittany M. Hearn, Destiny Kathleen Massey and Rainy Eva Deann Massey, Minor Children of Bobby (NMN) Shiers, Jr., Deceased v. Roy Michael LATHEM d/b/a Log Haul Hunting & Fishing Club of Edwards, Inc.

R. Charles Robb, attorney for appellant.

William M. Dalehite, Jr., Jackson, J. Seth McCoy, attorney for appellee.

EN BANC.

GRAVES, Justice, for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On May 15, 1999, Roy Michael Lathem shot Bobby Shiers, Jr., with a .38 caliber handgun on hunting club property in Hinds County, Mississippi. At the time of the shooting, Bobby Shiers was fleeing from law enforcement authorities in Edwards, Mississippi. On May 24, 1999, Bobby Shiers, Jr., died in Warren County, Mississippi, as a result of the gunshot wound. Lathem pleaded guilty to manslaughter and was serving his sentence in the Hinds County penal institute at the commencement of the civil suit.

¶ 2. On May 15, 2002, Mary P. Burleson, the mother and personal representative of Bobby Shiers, Jr., filed a complaint against Lathem in the Circuit Court of Warren County, asserting a claim for wrongful death on behalf of and for the benefit of the five minor children of the deceased. The summons was issued on September 12, 2002. Lathem was served with process on September 17, 2002, 125 days after the filing of the complaint, exceeding the 120-day requirement of Mississippi Rule of Civil Procedure 4(h). On October 15, 2002, Lathem filed his answer to the complaint, asserting only the affirmative defenses of failure to state a claim upon which relief can be granted and improper venue.

¶ 3. On August 13, 2004, the circuit court sua sponte entered an Order Dismissing Complaint without prejudice for failure to prosecute, pursuant to Mississippi Rule of Civil Procedure 41(d)(1). Burleson filed a Motion To Set Aside the Order Dismissing the Complaint, or Alternatively to Reinstate the Complaint on April 27, 2005, and on August 1, 2005, Lathem filed an Opposition to Plaintiff's Motion To Set Aside Order Dismissing Complaint, or Alternatively to Reinstate the Complaint. On August 5, 2005, Burleson filed a Motion for Leave to Amend Complaint. The trial court entered an Order Reinstating the Complaint on August 16, 2005, after hearing arguments of counsel. Burleson subsequently filed a Revised Motion for Leave to Amend Complaint on August 26, 2005.

¶ 4. On April 13, 2006, the trial court entered an Order Granting Leave to Amend the Complaint; Burleson filed the Amended Complaint on that date. On May 9, 2006, Lathem filed his Answer and Affirmative Defenses to Plaintiff's Amended Complaint, which set forth several affirmative defenses, including insufficiency of process and insufficiency of service of process. In addition, Lathem filed a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment pursuant to Mississippi Rule of Civil Procedure 4(h) asserting that service of process had not occurred within 120 days from the filing of the Complaint. In his motion, Lathem also alleged that the statute of limitations had run.

¶ 5. The circuit court held a motion hearing on October 19, 2006, regarding Lathem's Motion to Dismiss or, in the Alternative, Motion for Summary Judgment. The trial court heard arguments presented by counsel regarding Lathem's allegation of insufficiency of service of process. The Court did not address Lathem's second allegation, that the statute of limitations had run. Based on Burleson's failure to comply with Rule 4(h), the trial court dismissed the case without prejudice on October 19, 2006, and on October 20, 2006, entered an order sustaining Lathem's Motion to Dismiss, or in the Alternative, Motion for Summary Judgment. Burleson filed a timely Notice of Appeal to this Court on November 20, 2006.

¶ 6. On appeal, this Court addresses the issue of whether Lathem waived insufficiency of process as an affirmative defense by failing to raise it in his initial responsive pleading or by motion simultaneously therewith. This Court finds that Lathem waived the defense. Accordingly, we reverse the trial court's ruling and remand the case for a decision on the merits.

DISCUSSION

I. Whether Lathem waived Insufficiency of Service of Process as an Affirmative Defense by Failing to Raise it in His Initial Responsive Pleading or by Motion Simultaneous Therewith.

¶ 7. When reviewing a trial court's grant or denial of a motion to dismiss or a motion for summary judgment, this Court applies a de novo standard of review. Scaggs v. GPCH-GP, Inc., 931 So.2d 1274, 1275 (Miss.2006); Park on Lakeland Drive, Inc. v. Spence, 941 So.2d 203, 206 (Miss.2006); McLendon v. State, 945 So.2d 372, 382 (Miss.2006); Monsanto Co. v. Hall, 912 So.2d 134, 136 (Miss.2005). "When considering a motion to dismiss, the allegations in the complaint must be taken as true and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim." Scaggs, 931 So.2d at 1275 (citing Lang v. Bay St. Louis/Waveland Sch. Dist., 764 So.2d 1234, 1236 (Miss.1999)).

¶ 8. Burleson does not dispute that process was not served within the 120-day requirement set forth under Rule 4(h); however, Burleson argues that any Rule 4(h) objection was waived when Lathem failed to timely plead a Rule 12(b)(5) affirmative defense in the initial responsive pleadings. Lathem argues that he preserved a Rule 4(h) objection and Rule 12(b)(5) defense by asserting "a common catch-all defense," that is, a Rule 12(b)(6) defense in the initial Answer.1 Thus, the issue before this Court is whether Lathem properly asserted insufficiency of process as an affirmative defense in his initial answer filed on October 15, 2002, thereby precluding waiver.

¶ 9. Mississippi Rule of Civil Procedure 4(h) provides:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint ... the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion.

(Emphasis added). Thus, "M.R.C.P. 4(h) simply provides that a party shall be dismissed from an action if service is not had on that party within 120 days ..." Rains v. Gardner, 731 So.2d 1192, 1194 (Miss. 1999). The underlying rationale of Rule 4(h) is two-fold: First, it provides the defendant with notice that a lawsuit has been filed against him, and second, it requires a party "to bring claims to a court for judicial review in a timely manner." Johnson v. Rao, 952 So.2d 151, 162 (Miss.2007) (Graves, J., dissenting); Holmes v. Coast Transit Auth., 815 So.2d 1183, 1187 (Miss. 2002). See also Chauvin Int'l Ltd. v. B & S Sportswear, Inc., 1993 WL 403352 (S.D.N.Y.1993) (The purpose of service of process is to give notice to the defendant that suit has been filed against him.). "The rules which govern service of process should be `applied in a manner that will best effectuate their purpose of giving the defendant adequate notice.'" Johnson, 952 So.2d at 160 (Graves, J., dissenting) (citing Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir.1988)).

¶ 10. In this case, Lathem received notice of the lawsuit through service of process, satisfying the underlying rationale of the rule. Nevertheless, service was untimely, occurring five days late, and this Court has succinctly stated that "[u]ntimely service of process is insufficient service of process." Heard v. Remy, 937 So.2d 939, 942 (Miss.2006). However, a finding of defective service does not end the inquiry, inasmuch as Rule 4(h) must be viewed in conjunction with the pertinent provisions of Rules 12 and 15 of the Mississippi Rules of Civil Procedure. Even when service of process is insufficient, this Court has held that service-of-process defenses must be affirmatively asserted either in the initial responsive pleading or by motion. Otherwise, they are waived. Rains, 731 So.2d at 1195.

¶ 11. This Court has previously held that if a party fails to serve process within the 120-day requirement prescribed by Rule 4(h), the court shall dismiss the suit sua sponte or by motion, which should be made by the party upon whom process has been improperly served, that is, "the only party to have standing to make such motion." Rains, 731 So.2d at 1195. This Court in Rains stated that when asserting a Rule 4(h) objection, the "proper vehicle is a motion filed under the provisions of M.R.C.P. 12(b)(4) or (5)." Rains, 731 So.2d at 1195. Mississippi Rule of Civil Procedure 12 provides in pertinent part:

(b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading ... shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:

...

(4) Insufficiency of process

(5) Insufficiency of service of process

...

No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion ...

¶ 12. Further, Mississippi Rule of Civil Procedure 12(h) requires that a defense of insufficiency of process or insufficiency of service of process made by motion must be filed concurrently with other initial motions in a lawsuit or with the responsive pleadings. Rains, 731 So.2d at 1195 (finding that the defendant preserved insufficiency of process as an affirmative defense by asserting it in the initial pleadings and in the answer); see also Heard v. Remy, 937 So.2d 939 (Miss.2006) (finding that even though the defendant did not specifically use the phrases "insufficiency of process" or "insufficiency of service of process," his Rule 4(h) defense was sufficiently set...

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