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Evans v. Oberon Holding Corp.

August 18, 1998

EMMA EVANS, ADMINISTRATRIX OF THE ESTATE OF AND REPRESENTATIVE OF ALL HEIRS AT LAW, KNOWN AND UNKNOWN, OF RONNIE SUTTERS, DECEASED, APPELLANT
v.
OBERON HOLDING CORPORATION, APPELLEE



Before Thomas, P.j., Diaz, And Herring, JJ.

The opinion of the court was delivered by: Diaz, J., For The Court:

Evans v. Oberon Holding Corporation, 97-CA-00710-COA, __ So. 2d __

DATE OF JUDGMENT: 05/02/97

TRIAL JUDGE: HON. L. BRELAND HILBURN, JR.

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - WRONGFUL DEATH

TRIAL COURT DISPOSITION: DEFAULT JUDGMENT SET ASIDE AND NEW COMPLAINT DISMISSED AS TIME-BARRED

DISPOSITION AFFIRMED

¶1. Emma Evans appeals the lower court's orders setting aside the previously entered default judgment and granting the appellee's motion to dismiss. On appeal, Evans argues that the lower court erred in (1) setting aside the default judgment based on an improper finding that Oberon Holding Corporation had not been validly served with process and in (2) finding that the statute of limitations barred Evans's claim. Finding Evans's arguments without merit, we affirm.

FACTS

¶2. On December 23, 1991, Ronnie Sutters was shot and killed while on the premises of Players Lounge, Inc. in Jackson, Mississippi. On December 21, 1994, Emma Evans, the administratrix of Sutters's estate and representative of Sutters's heirs, filed a wrongful death action against Players Lounge, Inc. and Jackson Square Shopping Center, Inc. alleging that the defendants were negligent in providing for Sutters's safety while he was a guest on their premises. On March 22, 1995, Evans amended her complaint in order to name Oberon Holding Corporation (hereinafter "Oberon") as an additional defendant. *fn1

¶3. Evans first attempted to serve Oberon's owner, Mark Berlin, with process by certified mail to an address in Florida; however, Berlin had moved from that address and therefore, did not receive notice of the lawsuit. On April 11, 1995, Evans again attempted service of process by certified mail to Oberon, in care of Schulte, Roth & Zabel-- a New York law firm Evans believed to be Oberon's agent for service of process. On June 6, 1995, the lower court entered a default judgment against Oberon in the amount of $1.5 million due to Oberon's failure to answer or otherwise defend the allegations listed in Evans's complaint. On February 9, 1996, Oberon filed a motion to set aside the default judgment, citing invalid service of process. On May 6, 1996, the lower court entered its order granting Oberon's motion. In the order, the court found that Oberon had not been properly served with process. Thereafter, on May 9, 1996, Evans once again attempted to serve process on Oberon by service upon the Secretary of State of New York. However, Evans was advised that process was ineffective due to the Secretary of State's unwillingness to accept service on actions from courts other than those located in New York. Finally, on May 30, 1996, Evans served a copy of the summons and amended complaint upon Oberon's owner, Mark Berlin, at his address in New York.

ΒΆ4. On June 24, 1996, Oberon filed its motion to dismiss, alleging that all claims asserted against it were barred by the statute of limitations. On January 8, 1997, the lower court entered its order granting Oberon's motion to dismiss. In its order of dismissal, the lower court found that Evans's claims against Oberon were barred by the ...


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