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Thornton v. Freeman

Court of Appeals of Mississippi

March 27, 2018

BRENDA THORNTON APPELLANT
v.
ANDY FREEMAN APPELLEE

          DATE OF JUDGMENT: 11/29/2016

          COURT FROM WHICH APPEALED: PIKE COUNTY CIRCUIT COURT HON. DAVID H. STRONG JR. TRIAL JUDGE.

          ATTORNEYS FOR APPELLANT: DENNIS C. SWEET III DENNIS CHARLES SWEET IV.

          ATTORNEYS FOR APPELLEE: MARK C. CARLSON PRICE WILSON DONAHOO.

          BEFORE IRVING, P.J., FAIR AND WESTBROOKS, JJ.

          FAIR, J.

         ¶1. This case concerns a dispute over the sufficiency of service of the summons and complaint in a personal injury suit. The circuit court found numerous defects in the service, one being that there was no evidence Brenda Thornton had mailed copies of the summons and complaint to Andy Freeman's address following the service on his father, as required by Mississippi Rule of Civil Procedure 4(d)(1)(B). On appeal, Thornton does not challenge that finding. For that reason alone, the service was ineffective, and we affirm the circuit court's grant of summary judgment.

         DISCUSSION

         1. Sufficiency of Process

         ¶2. Thornton and Freeman devote most of their arguments to the question of whether Freeman's father was at Freeman's usual place of abode or in the driveway of his own home across the street. But, as we said, it is clear that the service was ineffective for another reason, and thus it is not necessary to address the question of where Thornton's father was when he was served.

         ¶3. The procedural posture of this case is unusual in two respects. First, while Freeman did assert the defense of insufficiency of process in his answer, it was only in the most general and conclusory terms. To properly raise the defense, the objection should have contained more detail: "Objections to the sufficiency of process must be specific and must point out in what manner the plaintiff has failed to satisfy the service provision utilized." O'Brien v. R.J. O'Brien & Assocs., 998 F.2d 1394, 1400 (7th Cir. 1993) (quoting Photolab Corp. v. Simplex Specialty Co., 806 F.2d 807, 810 (8th Cir. 1986)); see also 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1353 at 341 (3d ed. 2004). Failure to adequately raise the defense of insufficiency of service in the answer or a pre-answer motion should have barred the issue from consideration. See M.R.C.P. 12(h). Nonetheless, Thornton has made no objection to the sufficiency of the raising of the defense in Freeman's answer, and thus she has waived the issue-waiver of a defense can itself be waived. See Fortner v. Specialty Contracting LLC, 217 So.3d 736, 745-46 (¶31) (Miss. Ct. App. 2017).

         ¶4. The second procedural irregularity is the way the issue was presented to the trial court, in a motion for summary judgment. The parties-and to a lesser extent the circuit court- repeatedly have employed or referenced the summary judgment standard in evaluating the sufficiency of the service of process. On appeal, the parties continue to argue about a genuine issue of material fact as to the service of the summons. See M.R.C.P. 56(c). Instead, the question of sufficiency of process should have been addressed under Rule 12(b)(5). The circuit court should have held a preliminary hearing and was free to make its own findings of fact, even if the facts were contested. See M.R.C.P. 12(d); Johnson v. Rao, 952 So.2d 151, 154 (¶9) (Miss. 2007); see also 5B Wright & Miller § 1353 at 340.

         ¶5. Thornton has made no complaint about the application of the summary judgment standard, perhaps because she could only benefit from it; under the summary judgment standard, Thornton would prevail if there was a genuine issue of material fact as to whether service was effected. But because she failed to make a prima facie case that the summons and complaint were properly served, we do not see this error as to the legal standard as impacting the result and requiring reversal.

         ¶6. There is also a concern with the nature of the judgment below. A dismissal under Rule 12(b)(5) should be entered without prejudice, but a summary judgment is with prejudice and precludes refiling of the complaint. See M.R.C.P. 12; M.R.C.P. 56. Nonetheless, the circuit court did not grant the summary judgment based on the insufficiency of process alone; rather, the basis for the circuit court's order was that the statute of limitations had run on the negligence cause of action as a result of Thornton's failure to effect service. Since that appears to be the case, and Thornton has not ...


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