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Priede v. Jones

Court of Appeals of Mississippi

October 15, 2019

MICHAEL M. PRIEDE APPELLANT
v.
STEPHANIE JONES APPELLEE

          DATE OF JUDGMENT: 11/13/2017

          DeSOTO COUNTY CIRCUIT COURT HON. CELESTE EMBREY WILSON TRIAL JUDGE.

          ATTORNEY FOR APPELLANT: D. REID WAMBLE

          ATTORNEYS FOR APPELLEE: HARRIS FREDERICK POWERS III RICHARD L. KIMMEL

          BEFORE CARLTON, P.J., WESTBROOKS AND C. WILSON, JJ.

          C. WILSON, J.

         ¶1. Michael Priede brought a personal injury action against Stephanie Jones following a motor vehicle accident. Stephanie filed an answer and affirmative defenses, including insufficient process and insufficient service of process. Priede did not attempt to re-serve Stephanie. Eight months later, Stephanie filed a motion to dismiss or, in the alternative, for summary judgment, again alleging insufficient process and insufficient service of process. Priede opposed Stephanie's motion and filed a contemporaneous motion for additional time to serve process on Stephanie. Following a hearing on both motions, the DeSoto County Circuit Court granted Stephanie's motion to dismiss and denied Priede's motion for additional time. Priede now appeals. Finding no error, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. On December 31, 2013, Priede and Stephanie were in a motor vehicle accident. Almost three years later, on October 12, 2016, Priede filed a complaint against Stephanie in the Desoto County Circuit Court alleging claims arising from the accident. Priede hired a process server, New Albany Police Department Detective Mark Cossitt, to serve Stephanie.

         ¶3. On October 22, 2016, Cossitt attempted to serve Stephanie at 5745 New Pointe Drive, Southaven, Mississippi. When Cossitt arrived at the home, he was met by a gentleman named Ronnie Jones, who stated that he was Stephanie's husband. Ronnie told Cossitt that Stephanie lived at the 5745 address but that Stephanie was not home. Ronnie further stated that he could accept the summons and complaint for Stephanie. Cossitt gave Ronnie a copy of the summons and complaint. Cossitt then filed a proof of service attesting that he left a copy of the summons and complaint with Ronnie at Stephanie's usual place of abode. On October 25, 2016, Priede mailed a copy of the summons and complaint to Stephanie at the 5745 address.

         ¶4. On November 21, 2016, Stephanie filed an answer and affirmative defenses to Priede's complaint. On the first page of the answer, Stephanie asserted two affirmative defenses:

First Defense
Motion to Dismiss Pursuant to Rule 12(b)(4)
The Defendant moves the Court to dismiss this cause of action against the Defendant pursuant to Rule 12(b)(4) because of insufficiency of process in that the Summons served on the Defendant did not set forth the correct address of said Defendant.
Second Defense
Motion to Dismiss Pursuant to Rule 12(b)(5)
The Defendant moves the court to dismiss this cause of action against the Defendant pursuant to Rule 12(b)(5) due to insufficiency of service of process in that the Summons was served on the exhusband of the Defendant, who was neither a registered agent or had the authority to accept the Summons on behalf of the Defendant, and the named Defendant did not reside at the address where the exhusband received the Summons and Complaint.

         Despite being put on notice of the potential deficiencies in process and service of process of his summons and complaint, Priede did not attempt to re-serve Stephanie or request additional time to ...


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