Whitten v. Whitten
| Docket Number: | 2005-CA-02031-COA | |
| Oral Argument: | 01-25-2007 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 05-22-2007 Opinion Author: CHANDLER, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Personal injury - Timeliness of service of process - M.R.C.P. 4(h) - Good cause - Waiver - M.R.C.P. 12(h) Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Dismissal Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 08-18-2005 Appealed from: Hancock County Circuit Court Judge: Jerry O. Terry, Sr. Disposition: TRIAL COURT ENTERED ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE OF COURT TO EFFECT SERVICE, AND GRANTED DEFENDANT'S MOTION TO DISMISS. Case Number: A2301-01-0372 |
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| Party Name: | Attorney Name: | |||
| Appellant: | THOMAS WHITTEN, JR. |
WILLIAM CHAD STELLY |
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| Appellee: | THOMAS WHITTEN, SR. | WILLIAM L. MCDONOUGH, JR. |
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| Topic: | Personal injury - Timeliness of service of process - M.R.C.P. 4(h) - Good cause - Waiver - M.R.C.P. 12(h) |
| Summary of the Facts: | Thomas Whitten, Jr. filed a negligence action against his father, Thomas Whitten, Sr. The court dismissed the action for failure to serve process within 120 days. Whitten, Jr. appeals. |
| Summary of Opinion Analysis: | Pursuant to M.R.C.P. 4(h), if service is not effected within the 120 day period and the plaintiff cannot show good cause why such service was not made within that period, the action shall be dismissed without prejudice upon motion or upon the court's own initiative with notice to the plaintiff. In this case, service was not effected until almost nine months after the expiration of the 120 day deadline but before the expiration of the statute of limitations. Whitten, Jr. argues that he showed he was diligent in his efforts to serve Whitten, Sr. and the delayed service was attributable to Whitten, Jr.'s incarceration and Whitten, Sr.'s intentional evasion of service of process through his changes of address. The good cause inquiry focuses on whether there was good cause for the failure to serve process within the 120 day period; difficulties that may have prevented successful service outside the120 day deadline are not considered. There was no abuse of discretion in the court's finding that Whitten, Jr. had failed to demonstrate good cause for the failure to effect service of process within 120 days. Whitten, Jr. only once attempted to have Whitten, Sr. served in the 120 day period, and his counsel only learned that service had not been effected sometime in January 2002, at least two months after the summons had been returned to the clerk's office unexecuted and possibly after the expiration of the 120 day deadline. Whitten, Jr. did not request additional time to effect service of process until Whitten, Sr. filed a motion to dismiss almost three years later. All the facts pertaining to an evasion of service of process by Whitten, Sr. arose after the expiration of the 120 day deadline. Therefore, the record supports the trial court's finding that Whitten, Jr. failed to demonstrate good cause for the untimely service. Whitten, Jr. also argues that Whitten, Sr. waived the defenses of insufficiency of process and insufficiency of service of process by neglecting to pursue those defenses for two years after asserting them in his answer and by participating in the litigation during that time. A defendant's failure to timely and reasonably raise and pursue the enforcement of any affirmative defense or other affirmative matter or right which would serve to terminate or stay the litigation, coupled with active participation in the litigation process, will ordinarily serve as a waiver. Whitten, Sr. raised the defenses of insufficiency of process and insufficiency of service of process in the responsive pleading but did not pursue those defenses for two years and until the statute of limitations had expired, all the while actively participating in the litigation. Whitten, Sr. engaged in written discovery and in settlement negotiations and noticed Whitten, Jr.'s deposition. Although Whitten, Sr. did properly raise the defenses of insufficiency of process and insufficiency of service of process in his answer as required by M.R.C.P. 12(h), he waived those defenses through his participation in the litigation together with his unreasonable two-year delay in pursuing the defenses. Therefore, the case is reversed and remanded. |
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