Fletcher v. Limeco Corp.
| Docket Number: | 2007-CA-01247-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 12-11-2008 Opinion Author: Carlson, J. Holding: Affirmed |
|
| Additional Case Information: |
Topic: Contract - Insufficiency of service of process - M.R.C.P. 4(b) - M.R.C.P. 81 - M.R.C.P. 4(h) - M.R.C.P. 4(d)(1)(B) - M.R.C.P. 5(d) - M.R.C.P. 12(h)(1) - M.R.C.P. 12(b)(4)-(5) - M.R.C.P. 15(a) - M.R.C.P. 8(b) - M.R.C.P. 55 Judge(s) Concurring: Smith, C.J., Waller, P.J., Dickinson and Randolph, JJ. Non Participating Judge(s): Lamar, J. Dissenting Author : Graves, J., with separate written opinion. Dissent Joined By : Diaz, P.J., and Easley, J. Procedural History: Dismissal Nature of the Case: CIVIL - CONTRACT |
|
| Trial Court: |
Date of Trial Judgment: 05-02-2007 Appealed from: LEE COUNTY CIRCUIT COURT Judge: Sharion R. Aycock Disposition: The trial court dismissed the plaintiff's actions due to insufficiency of process and insufficiency of service of process. Case Number: CV03-236(A)L |
|
| Consolidated: Consolidated with 2007-CA-01262-SCT T-Rex 2000, Inc. v. Brett Kidd and Jamie Kidd; Lee Circuit Court; LC Case #: CV03-234(PF)L; Ruling Date: 04/27/2007; Ruling Judge: Paul Funderburk; Consolidated with 2007-CA-01249-SCT R. W. Whitaker v. Limeco Corporation and William Kidd; Lee Circuit Court; LC Case #: CV03-235(A)L; Ruling Date: 05/02/2007; Ruling Judge: Sharion Aycock. | ||
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Monty Fletcher, R.W. Whitaker, T-Rex 2000, Inc. |
Michael N. Watts; R. Bradley Best; Julie Murphy Burnstein; Peter C. Sales |
|
|
| Appellee: | Limeco Corporation, William Kidd, Brett Kidd, and Jamie Kidd | L.F. Sams, Jr.; Margaret Sams Gratz | ||
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: | Contract - Insufficiency of service of process - M.R.C.P. 4(b) - M.R.C.P. 81 - M.R.C.P. 4(h) - M.R.C.P. 4(d)(1)(B) - M.R.C.P. 5(d) - M.R.C.P. 12(h)(1) - M.R.C.P. 12(b)(4)-(5) - M.R.C.P. 15(a) - M.R.C.P. 8(b) - M.R.C.P. 55 |
| Summary of the Facts: | T-REX 2000, Inc., R.W. Whitaker, and Monty Fletcher sued the defendants, William Kidd, Brett Kidd, Jamie Kidd, and Limeco Corporation, for alleged debts owed pursuant to a stock-purchase agreement and promissory notes. In due course, the plaintiffs’ actions were dismissed due to insufficiency of process and insufficiency of service of process. The plaintiffs appeal. |
| Summary of Opinion Analysis: | M.R.C.P. 4(b) requires that summons served by process server shall substantially conform to Form 1A and summons served by sheriff shall substantially conform to Form 1AA. The summonses issued in these three cases did not substantially conform with either Form 1A or Form 1AA, but instead included language consistent with an M.R.C.P. 81 summons. A summons does not substantially comply with the requirements of Rule 4 when, as here, the Rule 4 summons includes language contrary to the procedural requirements. Because the summons was deficient on its face, the trial court did not err in holding that the process issued to the defendants did not comply with Rule 4(b), and that dismissal without prejudice was required due to failure to serve valid process upon the defendants within 120 twenty days of the filing of the complaint pursuant to M.R.C.P. 4(h). Plaintiffs do not contend that service of process was sufficient as to Jamie and Brett Kidd in the T-REX case wherein William Kidd was served on their behalf. As to Jamie Kidd, an out-of-state resident, service on her father, William Kidd, at William’s residence was insufficient. William Kidd’s residence was not the “defendant’s usual place of abode” as contemplated by M.R.C.P. 4(d)(1)(B). Although Brett Kidd shared a residence with his father, service of process on Brett was insufficient where plaintiffs failed to follow up delivery of the summons to William by mailing a copy of the summons and complaint to Brett. The plaintiffs argue alternatively that the defendants have waived the defenses of insufficiency of process and insufficiency of service of process. The issue is essentially whether the document William Kidd drafted and served on plaintiffs’ former counsel was a valid answer despite having not been filed with the trial court. Pursuant to M.R.C.P. 5(d), “All papers after the complaint required to be served upon a party shall be filed with the court either before service or within a reasonable time thereafter. . . .” Without question, a valid answer would have effectively served to bar the defendants from asserting insufficiency of process and insufficiency of service of process defenses under M.R.C.P. 12(h)(1). William Kidd responded pro se on behalf of himself, Limeco, and Brett and Jamie. His response did not assert the defenses of insufficiency of process or insufficiency of service of process pursuant to M.R.C.P. 12(b)(4)-(5), nor did he amend his response within the requisite thirty days as required by M.R.C.P. 15(a) to include these defenses. The defendants argue that the first response William Kidd drafted and served to opposing counsel was invalid. The fact that a pleading is not filed should mean–as a matter of blackletter law–that the pleading is per se invalid. While the Court has given a very broad interpretation of what constitutes an answer pursuant to M.R.C.P. 8(b), it has never held that an answer that has not been filed was valid. William Kidd’s response, while taking the form of an answer, was never filed with the clerk. It was never filed because William’s deficient and ineffective process instructed him that “[y]ou are not required to file an answer or other pleading.” In the end, the plaintiffs simply cannot capitalize on their own folly as to the erroneous language that instructed William Kidd he was not required to file an answer. The plaintiffs argue that William Kidd’s response constitutes an appearance in each case. There is no question that default judgment in this case was improper, as both parties have conceded this point. William Kidd’s response may have met the requirements of M.R.C.P. 55 to require three days’ notice of application for default judgment, but it was not a valid answer, because it did not comport with the filing requirement of M.R.C.P. 5(d). The plaintiffs further argue that an appearance coupled with delay serves as a waiver. The delay is insignificant because the defenses were neither raised in a valid answer, nor did the defendants participate in the lawsuit on record until September 2006. Since the first response drafted and served by William Kidd did not constitute a valid answer, the defendants’ defenses were properly raised in the September 20, 2006, pleading – the first response filed of record by the Kidds. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
