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Rains v. Gardner

January 28, 1999

HAZEL RAINS
v.
GINGER GARDNER AND TINA CLARK



The opinion of the court was delivered by: Mills, Justice

ON PETITION FOR WRIT OF CERTIORARI

DATE OF JUDGMENT: August 17, 1995

TRIAL JUDGE: HON. LARRY EUGENE ROBERTS

COURT FROM WHICH APPEALED: WAYNE COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: AFFIRMED - January 28, 1999

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

¶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 In its original unpublished opinion, the Court of Appeals strictly construed the Hurst decision and reversed the trial court as to the dismissal of Gardner, and remanded the matter for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, No. 95-CA-00906-COA. (Miss. April 21, 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.

ΒΆ5. 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 ...


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