Shaver v. Blackwell
| Docket Number: | 2009-CA-00174-COA Linked Case(s): 2009-CA-00174-COA ; 2009-CT-00174-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 02-23-2010 Opinion Author: King, C.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Personal injury - Timeliness of service - M.R.C.P. 4(h) - Good cause - Waiver of defense of insufficiency of process Judge(s) Concurring: Lee and Myers, P.JJ., Griffis, Ishee, Roberts, Carlton and Maxwell, JJ. Concur in Part, Concur in Result 1: Barnes, J., without separate written opinion. Concurs in Result Only: Irving, J., without separate written opinion. Procedural History: Summary Judgment; Dismissal Nature of the Case: CIVIL - PERSONAL INJURY; Dismissal |
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| Trial Court: |
Date of Trial Judgment: 01-07-2009 Appealed from: Hancock County Circuit Court Judge: JERRY O. TERRY, SR. Disposition: GRANTED MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT Case Number: 07-0249 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | PATRICIA SHAVER |
CARL DWIGHT CAMPBELL III, GERALD MAPLES |
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| Appellee: | FRANKIE BLACKWELL | MELINDA OWEN JOHNSON | ||
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 - Timeliness of service - M.R.C.P. 4(h) - Good cause - Waiver of defense of insufficiency of process |
| Summary of the Facts: | Patricia Shaver filed a lawsuit against Frankie Blackwell for damages arising out of an automobile accident. Blackwell filed a motion to dismiss or, in the alternative, a motion for summary judgment, arguing that Shaver failed to timely serve her. The court granted the motion, and Shaver appeals. |
| Summary of Opinion Analysis: | Shaver argues that the trial court erred by dismissing her claims for failing to timely serve Blackwell because she demonstrated good cause. Specifically, Shaver claims that she diligently attempted to locate Blackwell and argues that Blackwell moved to Colorado after Hurricane Katrina, got married, and changed her last name, which presented challenges to her search. To establish good cause under M.R.C.P. 4(h), the plaintiff must demonstrate that she made diligent efforts to effect service upon the defendant. A plaintiff may file a motion for additional time to serve the defendant. However, the motion should be filed before the expiration of the 120-day time period following the filing of the complaint, which is also evidence of diligence. Besides Shaver’s bare assertions, there is no evidence in the record documenting Shaver’s attempts to locate Blackwell in Colorado. Absent such evidence, the Court can neither find that Shaver was diligent nor find that she established good cause for her failure to timely serve Blackwell. Shaver also argues that Blackwell waived her affirmative defense of insufficiency of process by actively participating in litigation. Participation in litigation is a factor considered in determining whether a defendant waived her affirmative defense of insufficiency of process. However, more is required to constitute a waiver. Blackwell asserted her affirmative defense of insufficiency of process on March 19, 2008, shortly after she was served. The motion on the hearing was not held until December 12, 2008. During this time, both parties served each other with interrogatories and a request for production of documents. Blackwell’s participation in litigation was minimal. Thus, she did not waive her defense. |
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