OF JUDGMENT: 01/27/2016
COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT TRIAL JUDGE:
HON. JEFF WEILL SR.
ATTORNEY FOR APPELLANT: JAWANZA KOBIE WATSON
ATTORNEY FOR APPELLEES: MICHAEL D. SIMMONS
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.
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
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.
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).
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
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
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, ...