Charles Lavel Stringer v. American Bankers Insurance Company of Florida
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-CP-00496-COA
CHARLES LAVEL STRINGER
v.
AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA AND
SIDNEY JOHNSON
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANT
APPELLEES
05/03/2000
HON. W. SWAN YERGER
HINDS COUNTY CIRCUIT COURT
PRO SE
WALTER D. WILLSON
LATISHA NICOLE CLINKSCALES
CIVIL - OTHER
JUDGMENT FOR DEFENDANTS
AFFIRMED - 03/12/2002
3/18/2002; denied 4/30/2002
5/6/2002; denied 8/8/2002
8/29/2002
BEFORE McMILLIN, C.J., THOMAS, AND MYERS, JJ.
McMILLIN, C.J., FOR THE COURT:
¶1. This case originated in the Circuit Court of Hinds County, First Judicial District, as a pro se action
brought by Charles L. Stringer against several defendants who had played various roles in the issuance of
an appearance bond that permitted Stringer to obtain a release from confinement pending disposition of a
pending criminal charge. Shortly after his release, Stringer was arrested once again on an unrelated charge
and remained confined through his subsequent trial and conviction on both charges. His suit seeks the return
of the $7,500 bonding fee he paid to obtain issuance of the required $75,000 bond, apparently on the
theory that the defendants caused the bond to be revoked after the second criminal charge surfaced.
Though his cause of action would appear to sound in breach of contract based on an apparent claim of
failure of consideration, Stringer chose to pursue the action as an infringement on his constitutional rights by
the defendants acting under color of state law, such a claim made actionable by the provisions of 42 U.S.C.
§ 1983.
¶2. The defendants named in the suit were originally American Bankers Insurance Company, Surety
Management Bonding Company, and Robert Cooksey in his capacity as agent for Surety Management
Bonding Company. By an amended complaint, Stringer subsequently sought to bring in an additional
individual defendant named Sidney Johnson, who was also alleged to be an agent of Surety Management
Bonding Company.
¶3. The action was originally filed on July 13, 1992. There is no indication in the record that American
Bankers Insurance Company was ever served with a summons and a copy of the complaint, though it
appears that Stringer did have at least one summons issued to "American Bankers Insurance Company No address provided." An entity with the legal name of American Bankers Insurance Company of Florida,
having learned of the suit's existence from a third party and apparently believing itself to be the entity
identified as American Bankers Insurance Company, entered a special appearance by motion on March 22,
2000, seeking dismissal of the action as to it based on insufficiency of the process and, therefore, the court's
lack of jurisdiction. The motion further asked that the dismissal be with prejudice for the reason that, even if
process were to be subsequently perfected, the applicable statute of limitations for the claim would have
long since run. The court granted the motion and dismissed American Bankers with prejudice. The court
subsequently certified that ruling as a final judgment, thereby making it an appealable order, under Rule 54
of the Mississippi Rules of Civil Procedure.
¶4. Stringer filed a motion seeking reconsideration of that ruling. As we understand the motion, Stringer did
not contend that service had, in fact, been perfected on this defendant. Instead, he recited in his motion a
litany of the difficulties he had encountered in attempting to obtain an address for American Bankers. The
court denied Stringer any relief on his motion and Stringer filed a notice of appeal in which he specifically
indicated that he was appealing from the court's order dismissing American Bankers and the subsequent
order denying relief on his motion to reconsider that ruling. It is in that posture that the case comes before
this Court.
¶5. Despite the narrow issue before the Court under Stringer's notice of appeal, Stringer's statement of
issues in his brief indicates that he also seeks appellate review of several other rulings made by the trial court
during the pendency of this action.
¶6. Two such orders affect, not American Bankers, but rather the individual defendant, Sidney Johnson.
During the course of this proceeding, Stringer had succeeded in obtaining a default judgment against
Johnson which the court subsequently set aside on Johnson's motion. Johnson was then successful in
obtaining an order dismissing him as a defendant on the ground that the complaint failed to state a claim
upon which relief could be granted against him. Stringer seeks in this appeal to have the default judgment
against Johnson reinstated.
¶7. Other rulings complained of in Stringer's brief relate to alleged errors in the court's rulings regarding his
attempts to compel responses to his discovery requests, an order denying sanctions against Johnson's
attorneys, and a claimed denial of Stringer's right to call a witness at a hearing on Johnson's motion to
dismiss.
A.
Dismissal of American Bankers
¶8. There is nothing in the record indicating that American Bankers was properly served with process in this
cause from the time the suit was filed in 1992 until that party's motion to dismiss brought in a special
appearance to contest the validity of any purported service of process. Relief on the motion was granted in
May 2000. The complaint filed by Stringer reflects that his alleged cause of action, assuming such a cause
of action existed solely for purpose of argument, accrued in late January or early February 1989 when he
was re-incarcerated and no refund was made on the bond fee. Mississippi Rule of Civil Procedure 4(h)
provides that failure to perfect service within 120 days of the filing of a complaint authorizes the court to
dismiss the complaint unless good cause is shown as to why service was not had within the time permitted.
M.R.C.P. 4(h). In this case, insofar as the record reveals, years have passed since suit was filed without
Stringer ever having American Bankers properly served as a defendant. Stringer's reasons for his failure
offered in his response to the motion to dismiss were that he was incarcerated during a part of the time and
that he attempted to obtain an address for American Bankers through the discovery process from the
defendant, Sidney Johnson, but that Johnson obstinately refused to disclose the information needed by
Stringer to perfect service.
¶9. Counsel for American Bankers pointed out to the trial court that the company had, at all pertinent times,
been registered to do business in Mississippi with the Mississippi Secretary of State and had a registered
agent for service of process in Mississippi in accordance with state law. The defendant contended, and the
trial court agreed, that, in view of the ready availability of this information and in view of the fact that pro se
litigants are generally held to the same standards as parties represented by counsel, Stringer's misguided and
ineffectual efforts to serve American Bankers did not constitute "good cause" for delay within the meaning
of Rule 4(h).
¶10. In determining such imprecise issues as the existence of "good cause," the trial court is afforded wide
discretion and may be reversed only for an abuse of that discretion. Rains v. Gardner, 731 So. 2d 1192,
1197 (¶ 18) (Miss. 1999). Case law in this state considering "good cause" under Rule 4(h) has equated it to
notions of "excusable neglect" in not perfecting process. Watters v. Stripling, 675 So. 2d 1242, 1243
(Miss.1996). We agree that a pro se litigant's ignorance of a readily-available means, through access to
public records maintained specifically for that purpose, of obtaining information to serve an intended
defendant in litigation does not rise to the level of excusable neglect under authority holding that pro se
litigants must be held to essentially the same standards in the conduct of litigation as are members of the bar
licensed to practice before the court. Ivy v. Merchant, 666 So. 2d 445, 449-50 (Miss.1995). The
dismissal for failure to properly serve American Bankers with a summons and copy of the complaint for a
period in excess of eight years was an entirely correct application of Rule 4(h).
¶11. The sole issue of concern to this Court is that the dismissal was with prejudice, whereas Rule 4(h)
states that a dismissal on the ground of failure to timely serve a named defendant shall be without prejudice.
M.R.C.P. 4(h). We cannot help but observe that prior Mississippi decisions have held that the statute of
limitations on a pending claim that has been tolled by the filing of a lawsuit commences to run again once the
120 days to perfect service has expired. Erby v. Cox, 654 So. 2d 503, 504-05 (Miss. 1995); Pruett v.
Malone, 767 So. 2d 983, 985 (¶9) (Miss. 2000). Our ruling today necessarily carries with it the conclusion
that the statute of limitations began to run once again on Stringer's claim in the latter part of 1992 and
nothing that has occurred since then could even arguably have served to toll the running. It is entirely
possible that consideration of the futility of dismissing in a manner that would permit the refiling of the suit a
substantial number of years after the limitation period would have expired led the circuit court to dismiss
with prejudice. If, in fact, the trial court had ever acquired jurisdiction over American Bankers, such a ruling
might be appropriate in the interest of judicial economy. Nevertheless, in this situation where jurisdiction
over the defendant has never been obtained, it remained beyond the court's authority to rule on an issue that
reaches to the viability of the claim itself. An affirmative defense such as the statute of limitations can only be
raised by a party properly before the court - a posture in which American Bankers has not found itself since
the inception of this proceeding nearly ten years ago. Therefore, though we find the Rule 4(h) dismissal to
be appropriate, we find it necessary to alter the form of dismissal of American Bankers from a dismissal
with prejudice to dismissal without prejudice.
B.
The Issues Affecting Sidney Johnson
¶12. Insofar as the record before us reveals, there remain pending claims asserted by Stringer against
Surety Management Bonding Company and Robert Cooksey. The various actions of the trial court
pertaining to Stringer's claims against Sidney Johnson are all interlocutory in nature - including the order
dismissing him with prejudice, since it did not contain the necessary Rule 54 certifications to make it a final
judgment. Interlocutory orders are not appealable as a matter of right. So long as an order "adjudicates
fewer than all of the claims or the rights and liabilities of fewer than all the parties," it remains subject to
revision by the trial court and is not appealable. M.R.C.P. 54(b); Fairley v. George County, 800 So. 2d
1159, 1162 (¶5) (Miss. 2000).
¶13. This Court lacks jurisdiction to consider appeals of interlocutory court orders unless permission has
been obtained for such an appeal under Mississippi Rule of Appellate Procedure 5. M.R.A.P. 5; American
Elec. v. Singarayar, 530 So. 2d 1319, 1322 (Miss. 1988). We are further obligated to note our own lack
of jurisdiction to proceed on our own motion, if the situation arises. Donald v. Calhoun Trans. Co. of
Calhoun, Georgia, 538 So. 2d 1191, 1194 (Miss. 1989).
¶14. Finding ourselves without jurisdiction to consider any of the interlocutory rulings of the trial court
relating to Sidney Johnson, we dismiss this appeal insofar as it relates to him.
¶15. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY, FIRST JUDICIAL
DISTRICT, DISMISSING THE APPELLANT'S CLAIMS AGAINST THE APPELLEE,
AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA, IS AMENDED TO
PROVIDE THAT THE DISMISSAL IS WITHOUT PREJUDICE AND THE DISMISSAL IS
AFFIRMED AS AMENDED. INSOFAR AS THIS APPEAL ATTEMPTS TO RAISE ISSUES
AFFECTING THE APPELLEE, SIDNEY JOHNSON, THE APPEAL IS DISMISSED FOR
LACK OF JURISDICTION AS AN INTERLOCUTORY APPEAL. ALL COSTS OF THE
APPEAL ARE ASSESSED TO HINDS COUNTY.
KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND BRANTLEY, JJ., CONCUR.
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