Rains v. Gardner

• Decision Date: 28 January 1999
• Docket Number: No. 95-CT-00906-SCT.,95-CT-00906-SCT.
• Citation: 731 So.2d 1192
• Parties: Hazel RAINS v. Ginger GARDNER and Tina Clark.
• Court: Mississippi Supreme Court

731 So.2d 1192

Hazel RAINS v. Ginger GARDNER and Tina Clark.

No. 95-CT-00906-SCT.

Supreme Court of Mississippi.

January 28, 1999.

Wayne Hynum, Hattiesburg, Attorney for Appellant.

Arlo Temple, Meridian, Attorney for Appellees.

EN BANC.

ON PETITION FOR WRIT OF CERTIORARI

MILLS, Justice, for the Court:

¶ 1. Hazel Rains filed a personal injury action against Ginger Gardner and Tina Clark on a premises liability and negligence theory. At the request of counsel for Rains, no process was issued until 6 months later, and then only for Gardner. Upon being served, Gardner filed a motion to dismiss for improper process (more than 120 days between filing of complaint and service of process) under M.R.C.P. 4(h) alleging that the cause of action was not filed within the period prescribed by the statute of limitations. At the hearing on the motion to dismiss, Gardner's counsel pointed out that M.R.C.P. 4(h) would apply to both defendants even though Clark had not been served nor did he represent Clark. The trial court granted Gardner's motion and dismissed Clark on its own motion.

¶ 2. On appeal, Rains asserted that by filing an answer, as well as the motion to dismiss, Gardner had entered a general appearance and thereby waived any objection to jurisdiction or process under Hurst v. Southwest Mississippi Legal Services Corp., 610 So.2d 374, 387 (Miss.1992). Rains also argued that by asserting the dismissal for Clark, Gardner's attorney, in effect, also entered an appearance on her behalf and thereby also waived her objection to insufficient process. In its original unpublished opinion, the Court of Appeals strictly construed the Hurst decision and reversed the trial court as to the dismissal of Gardner, and remanded the matter for trial, but found the dismissal of Clark to be proper. However, the Court of Appeals granted Gardner's Motion for Rehearing and reversed its earlier decision in a published decision in which the Court of Appeals affirmed the trial court's dismissal of both parties. Rains v. Gardner, 719 So.2d 768 (Miss.App.1998).

¶ 3. In its latter decision, the Court of Appeals' majority addressed the holding in Hurst, but noted that Hurst is contrary to the provisions of M.R.C.P. 12. We affirm both the trial court and the Court of Appeals, and write this opinion to eliminate any apparent conflict between Hurst and the Mississippi Rules of Civil Procedure addressing the issue.

FACTS

¶ 4. This case is before this Court on appeal from an order entered in the Circuit Court of Wayne County dismissing Hazel Rains' complaint filed against Ginger Gardner and Tina Clark. The order was appealed to the Court of Appeals which ultimately affirmed the dismissal by the Circuit Court.

¶ 5. Rains filed a personal injury action against Gardner and Clark, claiming that she fell because of a defect in a commercial parking lot owned by these two sisters. Rains charged that the defendants negligently failed to properly maintain their property. At the time suit was filed on January 13, 1995, three days before it would be barred by the three year statute of limitations, Rains's attorney requested that the clerk not issue process until directed to do so. On June 14, 1995, counsel finally asked that process issue to Gardner and she was served on June 19. There was never a request for process to issue to Clark.

¶ 6. Gardner appeared through counsel and moved to dismiss under Mississippi Rule of Civil Procedure 4(h). That rule provides that an action shall be dismissed on the court's own initiative or on motion if (a) service is not completed within 120 days after the complaint is filed and (b) the plaintiff "cannot show good cause why such service was not made within that period...." M.R.C.P. 4(h). Gardner also asserted a statute of limitations defense in the same pleading. Subsequent to filing this motion, but prior to a hearing, Gardner filed a general answer and affirmative defenses in which she again asserted the M.R.C.P. 4(h) issue. The trial court conducted a hearing on the M.R.C.P. 4(h) issue and concluded that Rains had failed to demonstrate good cause for her failure to have process served on Gardner for a period well in excess of the 120 days set out in the rule. The court, therefore, dismissed the complaint as to Gardner under Rule 4(h).

¶ 7. During the course of the hearing on Gardner's motion, counsel for Gardner stated, "There are some differences in the facts which the Court will hear but we ask the Court to dismiss [the complaint] as to Ms. Clark also under the rule that I read. But it's the Court's duty to do that...." When asked if he represented Clark, counsel replied, "I'm not representing to the Court that I represent anybody but Ms. Gardner, but Ms. Clark ought to also be dismissed. It's the Court's duty under this rule to do that." Rains claimed that these statements amounted to a voluntary appearance by Clark, thereby waiving the requirement of service of process on her. The trial court rejected that argument and dismissed the complaint as to Clark on its own motion under Rule 4(h). As to Gardner, the trial court specifically found that more than 120 days had passed since the filing of the complaint before service of process, that the plaintiff had failed to show good cause for the delay, and therefore the matter was dismissed without prejudice.

¶ 8. On appeal, the Court of Appeals issued its first opinion in unpublished form in October, 1997 in which it strictly applied the facts of this case to the holding in Hurst, supra.

On Motion for Rehearing, the Court of Appeals reconsidered its ruling and issued a new opinion in published form in April, 1998, affirming the trial court's dismissal of both parties due to process not being served timely under M.R.C.P. 4(h).

ANALYSIS

I.

¶ 9. The issue presented for analysis is best phrased as whether a party may make a special appearance to challenge the sufficiency of process while simultaneously raising issues constituting a general appearance, and if so, how can this be reconciled with this Court's previous holdings, specifically Hurst v. Southwest Mississippi Legal Services Corp., 610 So.2d 374, 387 (Miss.1992)

.¹

¶ 10. Our analysis must begin with a review of the applicable provisions of the Mississippi Rules of Civil Procedure. M.R.C.P. 4(h)(emphasis added) 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.

M.R.C.P. 12 (emphasis added) 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 or fact to that claim for relief. If, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56; however, if on such a motion matters outside the pleadings are not presented, and if the motion is granted, leave to amend shall be granted in accordance with Rule 15(a).

Furthermore, and critical to this analysis, Rule 12, subparagraphs (g) and (h)(emphasis added) provide that:

(g) Consolidation of Defenses in Motion. A party who makes a motion under this rule may join with it any other motions herein provided for and then available to him. If a party makes a motion under this rule but omits therefrom any defense or objection then available to him which this rule permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h)(2) hereof on any of the grounds there stated.

(h) Waiver or Preservation of Certain Defenses.

(1) 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. ...

¶ 11. 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 absent good cause shown. It further provides that this dismissal shall be sua sponte "or on motion." The last three words "or on motion" logically apply to the party upon whom process is not timely had. Such party is the only party to have standing to make such motion. The proper vehicle is a motion filed under the provisions of M.R.C.P. 12(b)(4) or (5). Furthermore, M.R.C.P. 12(h) provides that such a motion may be filed either before or concurrently with other initial motions or responsive pleadings, but not after the filing of the initial responsive pleadings as such would constitute a waiver.

¶ 12. The above analysis is in obvious conflict with Hu...