Hudson v. Lowe's Home Ctr.'s, Inc.
| Docket Number: | 2010-CA-01958-COA Linked Case(s): 2010-CT-01958-SCT ; 2010-CA-01958-COA |
|
| Court of Appeals: |
Opinion Link Opinion Date: 02-21-2012 Opinion Author: Lee, C.J. Holding: Affirmed as modified. |
|
| Additional Case Information: |
Topic: Personal injury - Service of process on corporation - M.R.C.P. 4(d)(4) - Good cause - M.R.C.P. 4(h) - Settlement negotiations - Dismissal without prejudice Judge(s) Concurring: Irving and Griffis, P.JJ., Ishee, Roberts and Maxwell, JJ. Concur in Part, Dissent in Part 1: Barnes, J., concurs in part and dissents in part without separate written opinion. Procedural History: Dismissal Nature of the Case: CIVIL - PERSONAL INJURY |
|
| Trial Court: |
Date of Trial Judgment: 11-15-2010 Appealed from: Jackson County Circuit Court Judge: Kathy King Jackson Disposition: GRANTED DEFENDANT’S MOTION TO DISMISS Case Number: 2009-00184(2) |
|
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Arthur Gerald Hudson and Linda S. Hudson |
CHUCK MCRAE |
|
|
| Appellee: | Lowe's Home Centers, Inc. | JAMES H. HEIDELBERG JESSICA MARIE DUPONT | ||
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. |
|
| Topic: | Personal injury - Service of process on corporation - M.R.C.P. 4(d)(4) - Good cause - M.R.C.P. 4(h) - Settlement negotiations - Dismissal without prejudice |
| Summary of the Facts: | Arthur Gerald Hudson and Linda S. Hudson initiated an action following an injury to Arthur allegedly caused by an employee of Lowe’s Home Center Inc. on May 5, 2006. Hudson did not immediately file suit. Rather, Hudson’s counsel, Chuck McRae, and Lowe’s counsel, Ken Adcock, began settlement negotiations. As the three-year statute of limitations was set to expire on May 5, 2009, McRae and Adcock entered three separate agreements to toll the statute, thereby extending the time to file suit to July 31, 2009. On July 27, 2009, Hudson filed a complaint against Lowe’s. Court records show that on August 3, 2009, the circuit clerk issued a summons addressed to Lowe’s registered agent for service of process, Corporation Service Company, at its address. Adcock was not listed as a registered agent for service of process. McRae asserts that on August 6, 2009, he attempted to serve a copy of the summons and complaint on Adcock at Adcock’s law office. In the proof of service, which was not notarized until November 2, 2010, McRae admittedly left the summons and complaint at Adcock’s law office “on the [right] side of door.” The statute of limitations resumed on November 24, 2009, but expired four days later on November 28, 2009. On January 20, 2010, Lowe’s registered agent, CSC, was personally served with a copy of the summons and complaint. On February 10, 2010, Lowe’s filed an answer alleging that Hudson’s claims were barred by the statute of limitations. Lowe’s also filed a motion to dismiss. The trial court granted Lowe’s motion to dismiss. Hudson appeals. |
| Summary of Opinion Analysis: | Hudson argues the trial court erred in granting Lowe’s motion to dismiss because service of process was proper based upon Lowe’s admission in its answer to the complaint. According to M.R.C.P. 4(d)(4), service of process upon a corporation is accomplished by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process. The record contains no evidence Adcock was an officer, a managing agent, a general agent, a registered agent for service of process, or was otherwise authorized to receive service of process on Lowe’s behalf. However, Hudson contends Lowe’s admission in its answer to the complaint proves Adcock could be served with process. Paragraph 1(c) in Hudson’s complaint lists CSC as the registered agent for service of process. The second sentence states Adcock may also be served with process. In Lowe’s answer, which was well after service of process had been attempted on Adcock, it states that the “[d]efendant admits the allegations of paragraph number 1(c).” However, given this answer was filed well after the statute of limitations had expired, Hudson cannot rely on this statement to advance his cause, especially since Hudson was aware CSC was the registered agent when the complaint was filed on July 27, 2009. Even if Adcock was authorized to receive service on Lowe’s behalf, the method of service upon Adcock was impermissible. Posting to the property is clearly not an authorized means to serve process on a corporate entity. Hudson also argues that the settlement negotiations and discovery should be considered good cause for Hudson’s failure to serve process timely. M.R.C.P. 4(h) states a party must show good cause why service of process was not made within 120 days of filing the complaint. Good faith negotiations do not constitute good cause for failure to effect timely service of process under Rule 4(h). Furthermore, good cause can never be demonstrated where the plaintiff has not been diligent in attempting to serve process. Thus, pursuant to Rule 4(h), a dismissal without prejudice was appropriate regardless of the statute of limitations. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
