Courtney v. McCluggage
| Docket Number: | 2007-CA-01440-COA Linked Case(s): 2007-CA-01440-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 09-23-2008 Opinion Author: Lee, P.J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Personal injury - Subject matter jurisdiction - Section 13-3-57 - In personam jurisdiction - Waiver of service of process - M.R.C.P. 12(g) - M.R.C.P. 12(h)(1) - Amendment of complaint - M.R.C.P. 15(a) Judge(s) Concurring: King, C.J., Myers, P.J., Irving, Chandler, Griffis, Ishee, Roberts, and Carlton, JJ. Concurs in Result Only: Barnes, J. Procedural History: Default Judgment Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 07-18-2007 Appealed from: Greene County Circuit Court Judge: Kathy King Jackson Disposition: DEFAULT JUDGMENT SET ASIDE AND COMPLAINT DISMISSED Case Number: CV-2005-04-041(2) |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | MORRIS E. COURTNEY |
STEWART L. HOWARD |
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| Appellee: | WALLACE B. MCCLUGGAGE | MYLES ETHAN SHARP |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Personal injury - Subject matter jurisdiction - Section 13-3-57 - In personam jurisdiction - Waiver of service of process - M.R.C.P. 12(g) - M.R.C.P. 12(h)(1) - Amendment of complaint - M.R.C.P. 15(a) |
| Summary of the Facts: | Morris Courtney was involved in a vehicle accident with Wallace McCluggage. Courtney filed a complaint against McCluggage alleging that McCluggage negligently and/or wantonly caused the car collision. Courtney served process on “Wallace B. McCluggage,” an out-of-state resident, by certified mail at the address McCluggage provided on the accident report. The certified receipt was signed by Wallace McCluggage. However, the signature on the certified receipt was later discovered to be that of McCluggage’s estranged father, also named Wallace McCluggage, but with no middle name. When no answer was filed, Courtney filed for a default judgment. The default judgment was granted. McCluggage filed various motions for relief. The circuit court agreed that service of process was not properly made and set aside the default judgment. Courtney filed an amended complaint. Service of process was properly made on McCluggage. McCluggage filed an answer and a motion to dismiss for failure to serve process timely. The circuit court granted the motion to dismiss. Courtney appeals. |
| Summary of Opinion Analysis: | Courtney argues that the circuit court erred in setting aside the default judgment for lack of jurisdiction, because McCluggage consented to jurisdiction when he appeared to challenge the validity of the default judgment. Section 13-3-57, Mississippi’s long-arm statute, provides that any nonresident person who commits a tort in whole or in part in this state against a resident or nonresident of this state shall be subjected to the jurisdiction of the courts of this state. Clearly, the requirements for subject matter jurisdiction have been met since the tort, the car wreck and alleged negligence, occurred in Mississippi. If McCluggage entered a general appearance in the circuit court, he will be deemed to have waived service of process and have subjected himself to jurisdiction of the court. M.R.C.P. 12(g) provides that if a party makes a motion under this rule but omits therefrom any defense or objection then available to him which this rule permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted. McCluggage filed a motion for relief from the default judgment arguing that the default judgment should be set aside, because no hearing on the record concerning damages was conducted and in the alternative, he was entitled to notice of such hearing. By filing a motion asking the court for affirmative relief, McCluggage made a general appearance, thus, subjecting himself to the jurisdiction of the court. Further, no objection to personal jurisdiction was raised in this motion. It was not until later that the issue of insufficiency of process was raised. As provided by M.R.C.P. 12(h)(1), objections to personal jurisdiction must be asserted timely or they will be held waived. The circuit court should have given McCluggage thirty days, or some such time, after setting aside the default judgment to file an answer, thus, allowing the case to proceed on the docket. Since McCluggage waived service of process, the circuit court’s order dismissing this case for failure to timely serve process was in error. Under M.R.C.P. 15(a), the amended complaint was timely, and it was not necessary for Courtney to seek leave of court to file the amended complaint because no responsive pleading had been filed by McCluggage. |
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