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Estate of Puckett v. Clement

Supreme Court of Mississippi, En Banc

October 5, 2017

ESTATE OF RUSSELL PUCKETT
v.
CAROL CLEMENT

          DATE OF JUDGMENT: 04/21/2016

         WARREN COUNTY CIRCUIT COURT HON. ISADORE W. PATRICK, JR. TRIAL JUDGE

          TRIAL COURT ATTORNEYS: DAVID M. SESSUMS EUGENE A. PERRIER

          ATTORNEY FOR APPELLANT: KENNETH B. RECTOR

          ATTORNEY FOR APPELLEE: DAVID M. SESSUMS

          CHAMBERLIN, JUSTICE.

         ¶1. This interlocutory appeal arises from a 2010 civil suit filed in the Circuit Court of Warren County (the "trial court") by Carol Clement against Russell Puckett. After Puckett's death in 2014, Clement substituted the Estate of Russell Puckett (the "Estate") as the defendant in the suit and served the Estate. The Estate moved to dismiss the suit due to failure to timely serve process under Mississippi Rule of Civil Procedure 4(h). The Estate argued that the statute of limitations had expired before Clement perfected service. The trial court denied the motion to dismiss. The Estate now appeals the trial court's denial of the motion to dismiss.[1] Because the trial court erred when it denied the motion to dismiss, we reverse and render judgment in favor of the Estate.

         FACTS AND PROCEDURAL HISTORY

         ¶2. In her complaint, Clement maintained that Puckett had told her she could have the two planters on his front porch when he either passed away or closed the antique store where he also lived. According to Clement, she had purchased antiques from Puckett in the past, and she claimed that by September 2009 there had been no activity at Puckett's residence for some months. She also asserted that she had heard from the neighbors that Puckett had passed away. Further, Clement alleged that she had knocked on Puckett's door and rung his doorbell on a number of occasions and had not received any response.

         ¶3. Therefore, on the evening of September 11, 2009, [2] Clement, with the assistance of her daughter, removed one of Puckett's planters from his porch and began to carry it toward her nearby home. Clement maintained that she and her daughter crossed the street in front of Puckett's home with the planter carried between them when Puckett fired four shotgun rounds behind them. Clement claimed that two of the shots struck her and caused the planter to explode. She also alleged that Puckett fired two additional shots "in a direction unknown."

         ¶4. Clement filed suit against Puckett on June 11, 2010. The complaint set forth three counts: (1) negligence in the operation and discharge of a firearm, (2) gross negligence in the operation and discharge of a firearm and (3) deliberate, intentional and reckless disregard of the safety of Clement and her daughter.

         ¶5. Before the Estate was served with process and its motion to dismiss was denied, a number of procedural motions, orders and notices were entered. The relevant procedural history of the case is summarized in the following timeline:

         Procedural History Timeline

Sept. 11, 2009

Puckett allegedly shot Clement.

June 11, 2010

Clement filed her complaint in the trial court.

Statute of limitations tolled with 93 days remaining.

120-day period to serve process until October 12, 2010, began.

Aug. 18, 2010

Trial court granted Clement's first motion for additional time to serve process until November 18, 2010.

Nov. 17, 2010

Trial court granted Clement's second motion for additional time to serve process until January 31, 2011.

Jan. 20, 2011

Trial court granted Clement's third motion for additional time to serve process until May 2, 2011.

May 3, 2011

Statute of limitations resumed.

June 27, 2011

Trial court granted Clement's fourth motion for additional time to serve process until October 1, 2011.

Statute of limitations tolled with 38 days remaining.[3]

Oct. 2, 2011

Statute of limitations resumed.

Oct. 24, 2011

Trial court granted Clement's fifth motion for additional time to serve process until February 28, 2012.

Statute of limitations tolled with 16 days remaining.

Feb. 29, 2012

Statute of limitations resumed.

Mar. 16, 2012

Statute of limitations expired.

July 31, 2014

Warren County Chancery Court (the "chancery court") received Puckett's will for probate.

Chancery court issued letters of administration to Harvey Smith[4] as executor of the Estate.

Aug. 7, 2014

Clement filed a motion for suggestion of death and an amended complaint.

Aug. 12, 2014

Trial court substituted the Estate as the defendant.

Aug. 26, 2014

Clement returned service, executed on the Estate.

Oct. 10, 2014

Estate filed motion to dismiss. Estate answered the complaint.

Nov. 20, 2014

Estate served requests for admission, interrogatories and production of documents on Clement.

Nov. 21, 2014

Clement answered requests for admission.

Mar. 10, 2015

Puckett's heirs-at-law filed a will contest in the chancery court.

Apr. 10, 2015

Clement filed notice of her response to the Estate's interrogatories and request for production of documents.

Mar. 4, 2016

Chancery court recognized that Puckett's heirs-at-law had settled the will contest.

Mar. 15, 2016

Chancery court issued letters of administration to Gerald Puckett as the estate's executor.

Mar. 17, 2016

Gerald Puckett entered an appearance as the estate's executor in Clement's suit.

Mar. 18, 2016

Estate filed a brief in support of its motion to dismiss.

Mar. 22, 2016

Estate filed a notice of hearing on its motion to dismiss.

Apr. 14, 2016

Trial court held a hearing on the motion to dismiss.

Apr. 21, 2016

Trial court denied the Estate's motion to dismiss.

         ¶6. After the hearing, the trial court denied the motion to dismiss. The record and the transcript before us, however, do not reflect the trial court's rationale in denying the motion to dismiss.

         ¶7. Aggrieved, the Estate appeals. The Estate argues that the trial court erred in denying the motion to dismiss because (1) Clement failed to show good cause for failing to serve Puckett within the statute of limitations, and (2) it did not waive its statute-of-limitations defense. Clement responds that the trial court properly denied the motion to dismiss since she demonstrated good cause and the Estate waived its defense of the statute of limitations. We will address only the issue of the statute of limitations, as it is dispositive of Clement's suit against the Estate.

         STANDARD OF REVIEW

         ¶8. "The waiver . . . of an affirmative defense is subject to an abuse-of-discretion standard of review." Kinsey v. Pangborn Corp., 78 So.3d 301, 306 (Miss. 2011). "'This Court uses a de novo standard of review when passing on questions of law including statute of limitations issues.'" Chimento v. Fuller, 965 So.2d 668, ...


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