Jackie Owens v. Paul Mai
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-CA-01338-COA
JACKIE OWENS, INDIVIDUALLY AND ON
BEHALF OF ALL OTHER DEATH BENEFICIARIES
OF TERRY OWENS
v.
PAUL MAI D/B/A CRYSTAL SPRINGS MOBILE
HOME PARKS
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANT
APPELLEE
6/14/2002
HON. LAMAR PICKARD
COPIAH COUNTY CIRCUIT COURT
MICHAEL S. ALLRED
OTTOWA E. CARTER
WILLIAM E. READY, JR.
CIVIL - WRONGFUL DEATH
PLAINTIFF'S CLAIM IS BARRED BY THE
STATUTE OF LIMITATIONS AND IS
DISMISSED WITH PREJUDICE.
REVERSED AND REMANDED - 11/18/2003
BEFORE SOUTHWICK, P.J., THOMAS AND IRVING, JJ.
THOMAS, J., FOR THE COURT:
¶1.
Jackie Owens appeals the decision of the Copiah County Circuit Court dismissing her
wrongful death suit for expiration of the applicable statute of limitation. This was the second suit
filed on the same cause of action, the first having been dismissed for want of proper service of
process. On appeal, Owens asserts one error:
THE SECOND SUIT WAS NOT BARRED BY THE STATUTE OF LIMITATION
FACTS
¶2.
In 1996, Jackie Owens and her husband, Terry, were residents at the Crystal Springs Mobile
Home Parks, owned and operated by Paul Mai. In November 1996, Terry Owens was stabbed and
killed on the premises by Mark Tappen who had been hired by Mai to provide security to the Parks.
¶3.
Jackie Owens filed a wrongful death action against Mai for negligent employment of Tappen
and negligent supervision, among other claims, in November 1997 (Crystal Springs I). Owens
attempted to serve Mai personally on March 10, 1998 by leaving a copy of the summons and
complaint with his wife at their usual place of abode. However, Mai denied ever receiving a copy
of the documents by mail as is required under Rule 4(d)(1)(B) of the Mississippi Rules of Civil
Procedure and the return of service lacked any language indicating a copy had been mailed to Mai.
Mai included this as a defense in his answer.
¶4.
Three years later, in May 2001, Mai moved for dismissal based upon this service defect as
well as the failure of the return of service to include the required language. In her answer, Owens
asserted she had caused the summons and complaint to be mailed to Mai and submitted an amended
return of service which included the necessary language. The court granted the motion to dismiss
on the ground that "this service of process was defective as to form and wholly insufficient to bring
Paul Mai before the Court." Owens then filed a motion for reconsideration.
¶5.
While the motion was being considered, Owens refiled the same suit (Crystal Springs II)
on November 2, 2001, nearly five years after the death of her husband and two years after the
expiration of the statute of limitation. Owens' Crystal Springs I motion to reconsider was denied.
Mai again filed for dismissal, this time on the ground that the statute of limitation had expired. In
opposition to this motion, Owens asserted her cause of action fell within the purview of the "savings
statute." Miss. Code Ann. § 15-1-69 (Rev. 1995). The trial court disagreed and granted the
dismissal. This appeal followed.
ANALYSIS
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¶6.
Owens did not appeal the dismissal of her first suit, Crystal Springs I. The only appeal
before us is the dismissal of Crystal Springs II. However, whether or not the trial court erred in
Crystal Springs II necessarily entails a review of the nature of the dismissal in Crystal Springs I.
¶7.
In defending against the motion for dismissal in Crystal Springs II, Owens sought the
protection of the Mississippi "savings statute." The pertinent part of this statute provides that if any
action, duly commenced within the time allowed, shall be abated or otherwise avoided or defeated
for any matter of form, the plaintiff may commence a new action, even if the statute of limitation
has expired, if the new suit is begun within one year from the date of abatement. Miss. Code Ann.
§ 15-1-69 (Rev. 2003). Neither party disputes that by the time Crystal Springs II was filed the
applicable statute of limitation had long passed.
¶8.
It has long been accepted that dismissal of a case for lack of jurisdiction is a matter of form
for purposes of the savings statute. Hawkins v. Scottish Union & Nat'l Ins. Co., 110 Miss. 23, 29,
69 So. 710, 712 (1915). This rule has remained constant through modern cases. Wertz v. Ingalls
Shipbuilding, Inc., 790 So. 2d 841, 844 (¶ 7) (Miss. Ct. App. 2000). Whether or not "jurisdiction"
under these circumstances is limited to subject matter jurisdiction is the question we must decide.
¶9.
In dismissing the second suit, the trial court made the following finding:
Since the plaintiff's lawsuit was dismissed for improper service of process and not
lack of jurisdiction, the "saving statute" MS Code Ann. § 15-1-96 cannot revive the
Crystal Springs I lawsuit via Crystal Springs II. At this point, the plaintiff's claim
is barred pursuant to MS Code Ann. § 15-1-3.
¶10.
With respect to the trial court, we can find no basis for the distinction made between "service
of process" and "jurisdiction" in applying the savings statute. By distinguishing between service of
process and jurisdiction, we must assume the court intended to refer only to subject matter
jurisdiction as a "matter of form" to bring the suit under the statute. Both personal jurisdiction and
subject matter jurisdiction, however, are necessary before a court may validly try and adjudicate a
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case. Petters v. Petters, 560 So. 2d 722, 723 (Miss. 1990). Sufficient service of process is one of
the two manners in which personal jurisdiction may be exercised over a defendant and thus render
him subject to the adjudication of the trial court. Mansour v. Charmax Indus., Inc., 680 So. 2d 852,
854 (Miss. 1996).
¶11.
Although Mississippi has not ruled specifically on the inclusion of personal jurisdiction as
a matter of form in these circumstances, dicta from the case which established "jurisdiction" as a
matter of form seems to indicate that such inclusion would be proper, it was merely absent as an
issue from the case pending before that court:
It is true that in all of the cases from those states which have come under our
observation the defect in jurisdiction because of which the causes were dismissed
related to the parties, and not to the subject-matter. Nevertheless those cases are here
in point, for a court is just as powerless to render a valid judgment when without
jurisdiction of the person as it is to render such a judgment when it is without
jurisdiction of the subject-matter.
Hawkins, 110 Miss. at 30, 69 So. at 712.
¶12.
This same case gave us the justification for savings statutes such as the one here at issue:
that a cause of action ought not be lost for a matter not affecting the merits of the case when the fault
may be remedied merely by new process being issued. Id. at 31, 713 (quoting with approval Coffin
v. Cottle, 33 Mass. 383, 386 (1835)). This also is a concept which remains current in the law. Ryan
v. Wardlow, 382 So. 2d 1078, 1080 (Miss. 1980).
¶13.
The dismissal of Crystal Springs I falls within this purview. The only reason for dismissing
was the failure to mail a copy of the complaint and summons to the defendant. Personal jurisdiction
was thus lacking. We find no reason to assume that "jurisdiction" encompasses only subject matter
jurisdiction when both are necessary to any valid adjudication. The dismissal of Crystal Springs II
was therefore improper under the Mississippi savings statute.
¶14. THE JUDGMENT OF THE COPIAH COUNTY CIRCUIT COURT IS REVERSED
AND REMANDED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.
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McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, IRVING,
MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.
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