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Long v. Vitkauskas

Supreme Court of Mississippi, En Banc

October 5, 2017

DOUGLAS MICHAEL LONG, JR.
v.
DAVID J. VITKAUSKAS

          DATE OF JUDGMENT: 10/09/2014

         DeSOTO COUNTY CIRCUIT COURT HON. ROBERT P. CHAMBERLIN TRIAL JUDGE

          TRIAL COURT ATTORNEYS: JAMES MATTHEW LENDERMAN A. E. (RUSTY) HARLOW, JR.

          ATTORNEYS FOR APPELLANT: MICHAEL J. MALOUF JAMES MATTHEW LENDERMAN ROBERT EUGENE JONES, II

          ATTORNEYS FOR APPELLEE: A. E. (RUSTY) HARLOW, JR. KATHI C. WILSON

          WALLER, CHIEF JUSTICE.

         ¶1. On March 17, 2014, Douglas Michael Long Jr. filed suit against Pennsylvania resident David J. Vitkauskas for alienation of affections. Vitkauskas entered a special appearance and then filed a motion to dismiss for, inter alia, insufficient service of process under Mississippi Rule of Civil Procedure 4(c)(5). The trial court granted Vitkauskas's motion to dismiss on the ground of insufficient service of process, and the Court of Appeals affirmed. Finding service was sufficient, we reverse and remand to the trial court for further proceedings.

         FACTS AND PROCEDURAL HISTORY

         ¶2. Long and his wife separated on May 16, 2011. On March 17, 2014, Long sued Vitkauskas in DeSoto County Circuit Court for alienation of affections. Long attempted to serve process on Vitkauskas, a resident of Pennsylvania, via certified mail marked "restricted delivery" pursuant to Mississippi Rule of Civil Procedure 4(c)(5). The mailing was addressed to Vitkauskas at his place of employment. While delivery was restricted to Vitkauskas, the return receipt was signed by someone named "Mary" with the last name illegible.

         ¶3. On May 14, 2014, Vitkauskas's attorney entered a special appearance to contest jurisdiction and filed a motion to dismiss on the basis of insufficient service of process, stating "service of process was insufficient in that the summons was mailed to the Defendant[']s employer[, ] not to the Defendant."[1] In his response, Long claimed he complied with the requirements of Rule 4, attaching the return receipt as an exhibit. On October 9, 2014, the trial court granted Vitkauskas's motion, finding that service was insufficient because the signature, "Mary Bre . . ., " appeared on the return receipt instead of Vitkauskas's signature. Long filed a motion for reconsideration, stating process was adequate under the rules or, alternatively, for additional time to serve Vitkauskas, because the time within which to serve Vikauskas had expired.[2] After a hearing, the trial court denied Long's motion for reconsideration.

         ¶4. Before the Court of Appeals, Long argued service of process was sufficient and the trial court had erred by failing to consider his request for additional time to serve Vitkauskas. The Court of Appeals affirmed the trial court's dismissal of the case, finding no abuse of discretion. Long v. Vitkauskas, 2016 WL 5793348, at *2 (Miss. Ct. App. Oct. 4, 2016), cert. granted by 214 So.3d 1060 (Miss. 2017). We granted Long's petition for writ of certiorari, which raised the following two issues: (1) whether the trial court and the Court of Appeals erred by finding that service of process was insufficient, and (2) whether the trial court erred by refusing to consider Long's request for additional time to serve Vitkauskas. We hold service of process was sufficient; therefore, Long's second concern is moot.

         STANDARD OF REVIEW

         ¶5. The standard of review for a trial court's grant or denial of a motion to dismiss is denovo. Johnson v. Rao, 952 So.2d 151, 154 (¶ 9) (Miss. 2007). With regard to service of process, this Court applies an abuse-of-discretion standard of review to the trial court's findings of fact. Nelson ...


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