Collom v. Senholtz, No. 1999-CA-01182-COA.

• Decision Date: 22 February 2000
• Docket Number: No. 1999-CA-01182-COA.
• Citation: 767 So.2d 215
• Parties: Hillary COLLOM and Kristine Collom, Appellants, v. Helen M. SENHOLTZ, Appellee.
• Court: Mississippi Court of Appeals

767 So.2d 215

Hillary COLLOM and Kristine Collom, Appellants, v. Helen M. SENHOLTZ, Appellee.

No. 1999-CA-01182-COA.

Court of Appeals of Mississippi.

February 22, 2000.

Rehearing Denied May 16, 2000.

Certiorari Denied August 24, 2000.

William Michael Kulick, Biloxi, Attorney for Appellants.

Joe Crawford Gewin, Biloxi, Attorney for Appellee.

BEFORE KING, P.J., DIAZ, IRVING, AND THOMAS, JJ.

THOMAS, J., for the Court:

¶ 1. This case comes before the Court on appeal from an order entered in the Circuit Court of Harrison County dismissing the Colloms' complaint filed against Helen Senholtz, alleging the following issue as error:

I. THE TRIAL COURT IMPROPERLY APPLIED M.R.C.P. 4(d)(1)(A)(B) AND M.R.C.P. 4(h) IN ITS DECISION TO DISMISS PLAINTIFF'S COMPLAINT WHEN THE DEFENDANT MADE A GENERAL APPEARANCE WITHIN 120 DAYS.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Hillary and Kristine Collom filed a complaint on November 26, 1997 against Helen Senholtz and David Rogers claiming damages for injuries caused by a multi-car accident that occurred on November 29, 1994. A process server served Helen Senholtz by giving a copy of the summons and complaint to Helen Senholtz's nineteen year-old daughter, who resided in the same household. On December 16, 1997, Helen Senholtz's counsel answered the complaint. In her answer Senholtz requested the complaint be dismissed, denying proper service of process. She also raised an affirmative defense of improper and/or insufficient service of process in the answer. On May 26, 1998, 121 days after the filing of the complaint, Senholtz filed her motion to dismiss pursuant to M.R.C.P. 4(h). A hearing was set for June 22, 1998. Sometime between the filing of the motion to dismiss and the date of the hearing, plaintiffs counsel mailed a copy of the summons and complaint to Helen Senholtz. The trial court granted the defendant's motion to dismiss on September 18, 1998, and the plaintiff appealed that decision to this Court.

ANALYSIS

¶ 4. Appellant argues that Senholtz obviously had actual notice of the lawsuit because the defendant filed an answer to the suit, which appellant claims constituted a general appearance, absolving the plaintiff from being required to complete the service of process. This issue has recently been addressed by the Mississippi Supreme Court in Rains v. Gardner, 731 So.2d 1192 (Miss.1999), where the court granted certiorari to answer the question of whether a party may make a special appearance to challenge the sufficiency of process while simultaneously raising issues constituting a general appearance. We must begin our analysis by reviewing the applicable provisions of the Mississippi Rules of Civil Procedure.

¶ 5. The method of service utilized in the case at bar allows service:

4(d)(1)(A) by delivering a copy of the summons and of the complaint to him personally or to an agent authorized by appointment or by law to receive service or process; or (B) if service under subparagraph (1)(A) of this subdivision can not be made with reasonable diligence, by leaving a copy of the summons and complaint at the defendant's usual place of abode with the defendant's spouse or some other person of the defendant's family above the age of sixteen years who is willing to receive service, and by thereafter mailing a copy of the summons and complaint (by first class mail, postage prepaid) to the person to be served at the place where a copy of the summons and of the complaint were left. Service of a summons in this manner is deemed complete on the 10th day after such mailing.

M.R.C.P. 4(d)(1)(A). The comments to the rule specifically state that

[a] copy of the summons and complaint must thereafter be mailed (first-class mail, postage prepaid) to the person to be served at the place where a copy of the summons and complaint were left. Such "residence service" of a summons is not deemed complete until the 10th day after such mailing.

M.R.C.P. 4(d)(1)(A) cmt. (emphasis added). Thus, regardless of actual notice, service is not complete until ten days after such mailing. The Supreme Court in Williams v. Kilgore, 618 So.2d 51, 55 (Miss.1992), held that residence service by mere delivery of the summons and complaint does not complete the service. The court went on to explain that:

M.R.C.P. 4(d)(1)(B) provides that when such service is made, it must be followed by the mailing of a copy of the documents by first class mail to the defendant at the residence where process was delivered. Service is only complete ten days after the mailing. Finding no evidence in the record to indicate that a copy of the summons and complaint was mailed to Dr. Berrong at his residence, we therefore hold that the circuit court did not err in finding that valid service had not been made upon him.

Id. Consequently, if a copy of the summons and complaint is not mailed then the time limit for service comes into play. The pertinent rule, M.R.C.P. 4(h), provides:

(h) Summons: Time Limit for Service. If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, 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.

In other words, if service is not completed within 120 days of filing the complaint the plaintiff must show good cause why the service was not made or else the action shall be dismissed. The Supreme Court in Watters v. Stripling, 675 So.2d 1242, 1243 (Miss.1996), dismissed the case because of improper service of process. In Watters, the plaintiff filed the complaint and did not serve the defendant until after the amended complaint was filed, over a year after the original complaint was filed. Id. The court dismissed the action, holding that service was well after the 120-day period of the initial complaint and good cause was not shown. Id.

¶ 6. In the case at bar, the fact that the plaintiff ultimately completed service of process at some point before the hearing on the motion to dismiss is irrelevant because it is undisputed that service was completed by a follow up mailing after the 120-day time limit.

¶ 7. The court can dismiss the action on its own or the affected party can file a motion. How a motion to dismiss can be filed without constituting a general appearance is the main issue at hand. Mississippi Rule of Civil Procedure 12 addresses when motions can be and must be made, as well as when they are deemed waived. M.R.C.P. 12 provides in relevant part:

(b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, 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. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law

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