Schustz, et al. v. Buccaneer, Inc.
| Docket Number: | 2001-CA-00592-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 07-15-2003 Opinion Author: McMillin, C.J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Wrongful death - Service of process - In personam jurisdiction - Waiver of defects Judge(s) Concurring: King and Southwick, P.JJ., Bridges, Thomas, Lee, Irving, Myers and Chandler, JJ. Non Participating Judge(s): Griffis, J. Procedural History: Bench Trial Nature of the Case: CIVIL - WRONGFUL DEATH |
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| Trial Court: |
Date of Trial Judgment: 03-13-2001 Appealed from: Hancock County Circuit Court Judge: Jerry O. Terry, Sr. Disposition: MOTION TO DISMISS SUIT AGAINST BUCCANEER, INC. WITHOUT PREJUDICE Case Number: 98-0125 |
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| Note: | he motion for rehearing filed by the appellant is denied. | |
| Party Name: | Attorney Name: | |||
| Appellant: | KAREN M. SCHUSTZ, TANYA ANN SCHUSTZ,
CYNTHIA MARIE SCHUSTZ AND LISA M. GROS |
JOHN F. KETCHERSIDE
PATRICIA BROUSSARD JUDICE |
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| Appellee: | BUCCANEER, INC. AND NORBERT W. KOHNKE, II | DONALD RAFFERTY PATRICK H. ZACHARY |
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| Topic: | Wrongful death - Service of process - In personam jurisdiction - Waiver of defects |
| Summary of the Facts: | The motion for rehearing is denied, and this opinion is substituted for the original opinion. Karen Schustz filed a complaint for wrongful death arising out of the drowning death of Lennie Schustz while a guest at the Paddle Wheel Motel, naming Buccaneer, Inc. as the defendant. Later, an individual named Norbert Kohnke, who was alleged to be a successor in interest to Buccaneer insofar as the motel property was concerned, was added as a defendant. The court dismissed Buccaneer as a defendant pursuant to M.R.C.P. 4(h), which permits dismissal of a defendant if process is not completed within 120 days of filing of the complaint and the plaintiffs are unable to demonstrate good cause for the failure to accomplish service. Schustz appeals. |
| Summary of Opinion Analysis: | The only attempted service within 120 days of the filing of the complaint was an effort to serve an agent for process who had formally resigned in accordance with the applicable statutes and had ensured that his resignation had been properly noted in the appropriate public records maintained by the Secretary of State. There are several alternate methods of serving process on a corporation besides service on the registered agent, all of which were available to Schustz, but none of them were attempted. Schustz argues that Buccaneer’s voluntary appearance constituted a general appearance that acted as a waiver of any previously-existing problems with the form or method of service. A voluntary entry of appearance by a defendant no longer serves as a waiver of that defendant’s right to subsequently contest the court’s in personam jurisdiction arising from an alleged defect in the manner in which the defendant was served with process. However, the right to contest the court’s jurisdiction based on some perceived problem with service may be lost after making an appearance in the case if the issues related to jurisdiction are not raised at the first opportunity. The challenge must be asserted by motion or otherwise at the first opportunity after the appearance or it is deemed waived. Buccaneer argues that it had no duty to proceed affirmatively because it had not been properly served. However, case law from other jurisdictions suggests an obligation on a (possible) party to resolve any available challenges to the court’s in personam jurisdiction in a timely manner. Here, Buccaneer’s delay in contesting the court’s in personam jurisdiction over it for a period in excess of twelve months after having appeared in the action through counsel was untimely. Therefore, the appearance and lengthy ensuing period of inactivity, acting in conjunction, constituted a waiver of any defects in the form or manner of service. |
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