Heard v. Remy
| Docket Number: | 2005-CA-01556-SCT Linked Case(s): 2005-CA-01556-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 07-20-2006 Opinion Author: DICKINSON, J. Holding: AFFIRMED |
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| Additional Case Information: |
Topic: Personal injury - Waiver of defenses - M.R.C.P. 4(h) - M.R.C.P. 12(b) - Statute of limitations - Good cause Judge(s) Concurring: SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ AND CARLSON, JJ. Dissenting Author : EASLEY AND GRAVES, JJ. Concur in Part, Concur in Result 1: Randolph, J., Concurs in Part and in the Result Without Separate Written Opinion Procedural History: Dismissal Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 07-05-2005 Appealed from: OKTIBBEHA COUNTY CIRCUIT COURT Judge: James T. Kitchens, Jr. Disposition: Dismissed Appellant's case as barred by the statute of limitations Case Number: 2004-0497-CV |
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| Party Name: | Attorney Name: | |||
| Appellant: | TIFFANY HEARD |
ROBERTA LYNN HAUGHTON |
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| Appellee: | KEITH REMY | JACK H. HAYES, JR. |
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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 - Waiver of defenses - M.R.C.P. 4(h) - M.R.C.P. 12(b) - Statute of limitations - Good cause |
| Summary of the Facts: | Tiffany Heard was a passenger in a vehicle driven by Patrice Staple. Keith Remy’s vehicle collided with Staple’s vehicle. Heard filed a complaint alleging Remy’s negligence proximately caused the collision. Process was issued five days prior to the running of the three-year statute of limitations. However, Remy was not served with process within the 120-day period that followed. The 120-day period for service of process expired on January 27, 2005. On February 17, 2005, Heard filed a Motion for an Extension of Time within which to serve process on Remy. The trial court granted Heard an additional 60 days within which to serve process. Remy was served with process on February 25, 2005. Remy filed an Answer and Motion for Judgment on the Pleadings alleging that the three-year statute of limitations had run prior to Heard’s filing of the Motion for Extension of Time. The court dismissed Heard’s case, and Heard appeals. |
| Summary of Opinion Analysis: | Issue 1: Waiver of defenses Heard argues that the court erred by not finding Remy waived the defenses of insufficiency of process and insufficiency of service of process. A moving party has a choice of making a M.R.C.P. 4(h) objection to process by filing a M.R.C.P. 12(b)(4) or (5) motion prior to filing a responsive pleading; by asserting other general affirmative defenses; or by filing them simultaneously therewith. The M.R.C.P. 4(h) defense is waived only after the filing of an answer or affirmative defenses if the defense is not asserted prior to or simultaneously with the answer. After being served with process, Remy filed an Answer and Affirmative Defenses and his Motion for Judgment on the Pleadings. His Answer contained several affirmative defenses, including failure to state a claim and expiration of the statute of limitations. His Motion for Judgment on the Pleadings specifically alleged that both the 120-day service period under Rule 4(h) and the three-year statute of limitations had run without perfection of service of process. These two pleadings sufficiently asserted the Rule 4(h) defense. In fact, Heard’s Response to Remy’s Motion for Judgment on the Pleadings acknowledged Remy’s assertion. Although Heard claims that the defenses are waived because Remy did not use the magic words “insufficiency of process” or “insufficiency of service of process,” untimely service of process is insufficient service of process. Issue 2: Statute of limitations Heard argues that the court erred in finding the statute of limitations expired prior to service of process on Remy, because the case was not dismissed prior to the service of process. In the event the action is commenced within the period of limitation, the statute of limitations stops running, for a time. If the defendant is not served during the 120-day service period, the statute begins to run again. Heard failed to serve process within the time allowed by Rule 4(h), and thus the statute of limitations began to run at the conclusion of the 120-day period. Issue 3: Good cause Heard argues that the court erred in finding she failed to show good cause for not serving Remy during the required time period, because the failure to serve Remy within the 120 days was the result of the process server’s failure to follow instructions. To establish ‘good cause’ the plaintiff must demonstrate at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice. The individual instructed to serve Remy was an employee of Heard’s counsel’s law firm, yet Heard provides no explanation or testimony as to why process was not served within the 120-day period. The failure to attempt process on Remy may have been the result of a lack of communication and follow-up within the offices of Heard’s counsel. The continuing failure to attempt service for four months, without adequate explanation, shows a lack of diligence beyond excusable neglect. |
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