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Cox v. SMG

Court of Appeals of Mississippi, En Banc

September 5, 2017

TEIAWAN COX APPELLANT
v.
SMG AND CAPITAL CITY CONVENTION CENTER COMMISSION D/B/A JACKSON CONVENTION CENTER COMPLEX APPELLEES

          DATE OF JUDGMENT: 01/27/2016

         HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT TRIAL JUDGE: HON. JEFF WEILL SR.

          ATTORNEY FOR APPELLANT: JAWANZA KOBIE WATSON

          ATTORNEY FOR APPELLEES: MICHAEL D. SIMMONS

          FAIR, J.

         FOR THE COURT:

         ¶1. In late 2013, Teiawan Cox filed a personal injury lawsuit against SMG and the Capital City Convention Center Commission, alleging that she was injured as a result of an unsafe condition at the Jackson Convention Center Complex. Cox did not have process issued for any of the named defendants, and the case sat on the docket for more than a year and a half before Cox filed a motion for an extension of time to serve process. On July 24, 2015, she filed an amended complaint and had process issued for SMG and the Convention Center, who were apparently then served. SMG and the Convention Center filed answers on September 3, 2015, that did not assert deficiency of service of process as a defense. On October 30, 2015, they filed motions to amend their answers to raise that defense.

         ¶2. The trial court ultimately entered an order denying the motion for an extension of time to serve process. It further found the motions to amend the answers moot, and the same day also entered a final judgment dismissing the case without prejudice for insufficiency of process. On appeal, Cox contends that SMG and the Convention Center waived the defense of insufficiency of process by failing to assert it in their answer. We agree, and we reverse the dismissal and remand the case for further proceedings consistent with this opinion.

         DISCUSSION

         ¶3. The question of the sufficiency of the process is not at issue on appeal, nor whether the trial court should have granted an extension of time to serve process. The only issue raised by Cox is whether the defense of insufficiency of process was waived.

         ¶4. Mississippi Rule of Civil Procedure 12(h)(1) provides that a defense of insufficiency of process is waived if it is not raised in a pre-answer motion or in the answer. Mississippi courts "have consistently held that failure to assert the defense in an answer, motion, or other pre-responsive pleading is a waiver that will be enforced." U.S. Bancorp v. McMullan, 183 So.3d 833, 836 (¶10) (Miss. 2016) (citation omitted).

         ¶5. Burleson v. Lathem, 968 So.2d 930, 935-36 (¶¶14-15) (Miss. 2007), is almost exactly on point. There, the service of the summons was untimely, as it was in our case. The defendant did not raise the defense of insufficiency of process in its answer, and the Mississippi Supreme Court found the defense to have been waived. See id.

         ¶6. SMG and the Convention Center attempt to distinguish this case from Burleson by the fact that, unlike the defendant there, they filed motions to amend their answers to include the defense. These motions were filed outside the thirty days allowed for amendment as a matter of course under Mississippi Rule of Civil Procedure 15(a), so SMG and the Convention Center requested leave of the court to amend the answers, as the Mississippi Supreme Court has held to be potentially allowed under Rule 15(a). But the trial court never granted those motions, apparently finding them to be moot.

         ¶7. On appeal SMG and the Convention Center suggest that we should nonetheless affirm the trial court here because it "likely would have granted the motion" had it recognized it as a predicate to dismissal, instead of denying it as moot. We agree that the motions were not moot, but we cannot, as they urge, ...


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