OF JUDGMENT: 11/29/2016
FROM WHICH APPEALED: PIKE COUNTY CIRCUIT COURT HON. DAVID H.
STRONG JR. TRIAL JUDGE.
ATTORNEYS FOR APPELLANT: DENNIS C. SWEET III DENNIS CHARLES
ATTORNEYS FOR APPELLEE: MARK C. CARLSON PRICE WILSON DONAHOO.
IRVING, P.J., FAIR AND WESTBROOKS, JJ.
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.
Sufficiency of Process
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.
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).
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.
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
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 ...