Fletcher v. Limeco Corp., No. 2007-CA-01247-SCT.

• Decision Date: 11 December 2008
• Docket Number: No. 2007-CA-01249-SCT.,No. 2007-CA-01247-SCT.,No. 2007-CA-01262-SCT.
• Parties: Monty FLETCHER v. LIMECO CORPORATION. R.W. Whitaker v. Limeco Corporation and William Kidd. T-Rex 2000, Inc. v. Brett Kidd and Jamie Kidd.
• Court: Mississippi Supreme Court

996 So.2d 773

Monty FLETCHER v. LIMECO CORPORATION.

R.W. Whitaker v. Limeco Corporation and William Kidd.

T-Rex 2000, Inc. v. Brett Kidd and Jamie Kidd.

No. 2007-CA-01247-SCT.

No. 2007-CA-01249-SCT.

No. 2007-CA-01262-SCT.

Supreme Court of Mississippi.

December 11, 2008.

Michael N. Watts, R. Bradley Best, Oxford, Julie Murphy Burnstein, Peter C. Sales, attorneys for appellant.

L.F. Sams, Jr., Tupelo, Margaret Sams Gratz, attorneys for appellees.

EN BANC.

CARLSON, Justice, for the Court.

¶ 1. The plaintiffs in three cases, T-REX 2000, Inc., R.W. Whitaker, and Monty Fletcher (hereinafter "Plaintiffs"), sued the defendants, William Kidd, Brett Kidd, Jamie Kidd, and Limeco Corporation (hereinafter "Defendants"), in Lee County Circuit Court for alleged debts owed pursuant to a stock-purchase agreement and promissory notes. In due course, the Plaintiffs' actions were dismissed due to insufficiency of process and insufficiency of service of process. See Miss. R. Civ. P. 12(b)(4)-(5). The Plaintiffs appealed to us. Finding no error, we affirm.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. The three consolidated cases before this Court stem from contract negotiations that began in 2001 for the purchase of the T-Rex 2000 hockey team in Tupelo. This appeal, however, does not concern the alleged breach of contract, but the procedural history of the three suits. These three complaints were filed on December 11, 2003, in the Circuit Court of Lee County.

¶ 3. First, Plaintiff T-REX 2000, Inc., filed suit against Brett Kidd and Jamie Kidd for alleged breach of a stock-purchase agreement (hereinafter the "T-REX case"). The Plaintiffs in T-REX served William Kidd with the complaint and two summonses which had been issued for service on Brett Kidd and Jamie Kidd.¹ The second lawsuit was filed by R.W. Whitaker against Limeco Corporation and William Kidd (hereinafter the "Whitaker case") based on the allegation that Limeco and Kidd had failed to pay a $375,000 promissory note. The third lawsuit was filed by Monty Fletcher against Limeco (hereinafter the "Fletcher case") alleging that Limeco had breached a second $375,000 promissory note. The Whitaker and Fletcher complaints were served on January 23, 2004, via hand-delivery on William Kidd as managing director of Limeco at the residence shared by William and Brett Kidd. All three summonses issued for service on the Defendants and served on William Kidd read: "You are not required to file an answer or other pleading but you may do so if you desire." This language erroneously complied with requirements for a Rule 81 summons, not a summons consistent with the requirement of Rule 4. See Miss. R. Civ. P. 81 and 4.

¶ 4. William Kidd, pro se, and on behalf of himself, Limeco, Jamie Kidd and Brett Kidd drafted, hand-delivered and mailed to the Plaintiffs' former counsel responses to the three complaints. These responses were served on the Plaintiffs' counsel on February 20, 2004; yet Mr. Kidd—in accordance with the plain language of the summons that the filing of "an answer or other pleading" was not required—did not file the answers with the circuit clerk's office. None of the unfiled responses included the defenses of insufficiency of process or insufficiency of service of process pursuant to Mississippi Rule of Civil Procedure 12(b)(4)-(5).

¶ 5. Upon the entry of the clerk's default pursuant to Mississippi Rule of Civil Procedure 55(a), the Plaintiffs in all three cases moved for the entry of a default judgment pursuant to Mississippi Rule of Civil Procedure 55(b). Former counsel for the Plaintiffs falsely testified via affidavit attached to the motion for default judgment that no answer had been filed or served. The Kidds did not receive the requisite notice of the motion for default judgment; however, default judgments were later entered in each of the three cases. The Kidds had no knowledge of these default judgments until the new counsel retained by T-REX, Whitaker, and Fletcher filed Notice to Enroll Foreign Judgments in the Franklin County, Alabama, Circuit Court, seeking to enforce the Lee County default judgments. The Kidds and Limeco filed Motions to Set Aside the Default Judgments and for other relief on September 20, 2006, alleging that the default judgments were improper because they had served responsive pleadings on the former counsel for Plaintiffs. The Plaintiffs conceded that the default judgments had been improperly entered without notice to the Kidds or Limeco, and the parties submitted agreed orders setting aside the default judgments, which the circuit judge executed and caused to be filed in each of the cases. Furthermore, each order provided that that the "Defendants shall have thirty days from [the date of the order] in which to file a responsive pleading."

¶ 6. The defendants then filed their answers to the complaints in the T-REX, Whitaker, and Fletcher cases on December 11, 2006. These answers raised the defenses of insufficiency of process and insufficiency of service of process pursuant to Mississippi Rule of Civil Procedure 12(b)(4)-(5). On December 15, 2006, the Kidds and Limeco filed Motions to Dismiss for Lack of Service of Process as to each cause of action. The Plaintiffs opposed these motions in each of the three cases. Following a March 20, 2007, hearing, the Lee County Circuit Court, Judge Sharion R. Aycock presiding, dismissed the Whitaker and Fletcher cases without prejudice, based on the findings that process and service of process were insufficient and that proper service had not been had within 120 days as required by Mississippi Rule of Civil Procedure 4(h). The Lee County Circuit Court, Judge Paul Funderburk presiding, following an April 24, 2007, hearing, dismissed the T-REX case without prejudice based on the same findings. The Plaintiffs filed timely motions to alter or amend the judgments in each of the cases, all of which were denied by the respective trial judges. The Plaintiffs timely appealed to us in each of these cases, and we have now consolidated the cases on appeal.

DISCUSSION

¶ 7. This Court reviews de novo a trial court's grant of a motion to dismiss. Vicksburg Partners, L.P. v. Stephens, 911 So.2d 507, 513 (Miss.2005) (citations omitted); Spencer v. State, 880 So.2d 1044, 1045 (Miss.2004). A trial court can acquire jurisdiction over an individual through service of process. Mansour v. Charmax Indus., 680 So.2d 852, 854 (Miss.1996) (citing Aldridge v. First Nat'l Bank, 165 Miss. 1, 14, 144 So. 469, 470 (1932)). In addition, a trial court can acquire jurisdiction over the person through his appearance. Id. (citing State ex rel. Moak v. Moore, 373 So.2d 1011, 1012 (Miss.1979)). Without either occurrence, the trial court does not have jurisdiction over the person. Id. (citing Moore, 373 So.2d at 1012). This Court has stated, "Whether the circuit court had proper jurisdiction to hear a particular matter is a question of law, and this Court must therefore apply a de novo standard of review to this issue." Vicksburg Partners, 911 So.2d at 513 (citations omitted).

¶ 8. Process and service of process are governed by Mississippi Rule of Civil Procedure 4. Mississippi Rule of Civil Procedure 12 governs the manner in which defenses must be raised. A court can consider the affirmative defenses of insufficiency of process and insufficiency of service of process only if they are properly raised and have not been waived. Mississippi Rule of Civil Procedure 12(h)(1) states, in pertinent part:

A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by a motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.

¶ 9. On appeal the Plaintiffs request that the orders dismissing the T-REX, Whitaker, and Fletcher complaints be reversed and the cases remanded for trial. The Plaintiffs raise the following two issues for this Court's review:

(1) Did the trial court err in holding that the process issued to the Defendant Limeco Corporation did not substantially comply with Mississippi Rule of Civil Procedure 4(b) where the summons contained the essential elements of a summons established by Rule 4?

(2) Did the trial court err in holding that the Defendants Brett Kidd, Jamie Kidd, William Kidd, and Limeco Corporation did not waive their defenses of insufficient process and insufficient service of process where the Defendants served answers to the complaints and failed to assert any affirmative defenses based on insufficiency of process or insufficiency of service of process?

¶ 10. For the sake of today's discussion, we restate these issues.

I. WHETHER PROCESS AND SERVICE OF PROCESS SUBSTANTIALLY COMPLIED WITH MISSISSIPPI RULE OF CIVIL PROCEDURE 4(b).

¶ 11. Mississippi Rule of Civil Procedure 4(b) states:

The summons shall be dated and signed by the clerk, be under the seal of the court, contain the name of the court and the names of the parties, be directed to the defendant, state the name and address of the plaintiff's attorney, if any, otherwise the plaintiff's address, and the time within which these rules require the defendant to appear and defend, and shall notify him that in case of his failure to do so judgment by default will be rendered against him for the relief demanded in the complaint. Where there are multiple plaintiffs or multiple defendants, or both, the summons, except where service is made by publication, may contain, in lieu of the names of all parties, the name of the first party on each side and the name and address of the party to be served. Summons served by process server shall substantially conform to Form 1A. Summons served by sheriff shall substantially conform to Form 1AA.

(Emphasis added).

¶ 12. The summonses issued in...