Tyrone Sanders v. Amber C. Robertson
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-CP-00404-COA
TYRONE SANDERS
APPELLANT
v.
AMBER C. ROBERTSON AND MISSISSIPPI FARM
BUREAU CASUALTY INSURANCE COMPANY
DATE OF 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:
MANDATE ISSUED:
APPELLEES
2/3/2006
HON. MARCUS D. GORDON
NESHOBA COUNTY CIRCUIT COURT
TYRONE SANDERS (PRO SE)
JOSEPH BLAIR LOBRANO
JOE S. DEATON
CIVIL - PERSONAL INJURY
JUDGMENT OF DISMISSAL ENTERED.
AFFIRMED – 04/17/2007
BEFORE MYERS, P.J., IRVING AND BARNES, JJ.
IRVING, J., FOR THE COURT:
¶1.
Tyrone Sanders, pro se, appeals a judgment of the Circuit Court of Neshoba County
dismissing his action for damages resulting from an automobile accident. Sanders filed suit against
Amber C. Robertson and Farm Bureau Insurance Company.1 The court dismissed the case because
of insufficiency of process and improper service of process. Additionally, the case was dismissed
because Mississippi law prohibits direct actions for negligence against insurance companies in
1
Sanders incorrectly named Farm Bureau Insurance Company as the defendant. However,
Mississippi Farm Bureau Casualty Insurance Company, the would-be-proper defendant, without
admitting that it had been properly served, responded with a motion to dismiss.
automobile collision disputes. Aggrieved, Sanders appeals, asserting that the circuit court erred in
dismissing his complaint with prejudice.2
¶2.
We find no error; thus, we affirm the judgment of the circuit court.
FACTS
¶3.
On September 26, 2002, Sanders and Robertson were involved in a two-car automobile
accident in Neshoba County, Mississippi. At the time of the accident Robertson was insured by
Mississippi Farm Bureau Casualty Insurance Company (Casualty Insurance). On September 23,
2005, Sanders commenced this action pro se by filing a complaint in the Circuit Court of Neshoba
County, claiming that Robertson negligently allowed her vehicle to cross the center-line and collide
with his vehicle. Sanders alleges to have suffered neck and back injuries, as well as pain, sleep
deprivation and an interrupted sleep pattern as a result of the accident. In addition to punitive
damages, Sanders demanded a $45,000 judgment against Robertson and her insurance company.
¶4.
On September 30, 2005, the Neshoba County Circuit Clerk issued a “Notice of Lawsuit and
Request for Waiver of Service of Summons” which named Robertson and a Casualty Insurance agent,
Michael Vick, as defendants. However, the record indicates that a blank waiver of service of
summons was filed on October 4, 2005, and the record contains no documentation proving that either
defendant was properly served with process.
¶5.
On October 28, 2005, Casualty Insurance filed a motion to dismiss on the grounds that it was
improperly served and that it was not a proper party to the suit. Sanders responded by filing a
“Plaintiff’s Motion to Objection” in which he objected to the motion to dismiss and asked the court
to “proceed on and disregard the motion To [sic] dismiss.”
2
Although Rule 4(h) provides that a dismissal for failure to serve process within 120 days
shall be a dismissal without prejudice, we find that the dismissal with prejudice is harmless error,
because, as we later explain, at the time of the dismissal, the statute of limitations had already
expired.
2
¶6.
On February 3, 2006, the Neshoba County Circuit Court held a hearing on Casualty
Insurance’s motion. Sanders failed to appear at the hearing; nevertheless, the judge proceeded, and
dismissed the action with prejudice. Following the judge’s order, Sanders sent a letter to the judge
explaining that he was not at the hearing because he was confused as to the date and location of the
hearing.3 Sanders continued to send letters to the circuit judge and to the circuit clerk after the case
had been dismissed with prejudice. Sanders filed a notice of appeal on March 3, 2006.
ANALYSIS AND DISCUSSION OF THE ISSUE
¶7.
“This Court employs a de novo standard of review of a trial court’s grant or denial of a motion
to dismiss.” Spencer v. State, 880 So. 2d 1044, 1045 (¶6) (Miss. 2004).
¶8.
Sanders contends that he is entitled to relief from the circuit court’s ruling because: (1) he
served Robertson with notice of the lawsuit at her job via facsimile, as well as by certified mail at
her last known address; (2) Robertson is evading service of process; (3) he made a good faith effort
to serve Robertson with process; and (4) the hearing was held in Scott County, rather than Neshoba
County, which is a more convenient forum for him.
¶9.
We note that the record fails to confirm that Sanders in fact served Robertson or Casualty
Insurance, and Sanders’ statement alone does not satisfy Rule 4(h) of the Mississippi Rules of Civil
Procedure, which provides:
If a service of the summons and complaint is not made upon a defendant within 120
days after the filing of the complaint and the party on whose behalf such service was
required cannot show good cause why such service was not made within that period,
the action shall be dismissed as to that defendant without prejudice upon the court’s
own initiative with notice to such party or upon motion.
3
On December 12, 2005, the court issued a notice setting the hearing for January 6, 2006;
however, this hearing was canceled and re-set for February 3, 2006. The court issued a re-notice
of hearing reflecting this change. The record contains a certificate of service stating that this renotice was mailed to Sanders on December 20, 2005.
3
Although the record contains certified mail receipts for mailings sent by Sanders to the named
defendants, we point out that all of the receipts are dated after the case was dismissed by the trial
judge. When Sanders filed his complaint on September 23, 2005, the statute of limitations was tolled
for 120 days, or until January 20, 2006. At the time of the September 23, 2005 filing, only three days
remained before the running of the three-year statute of limitations. Thus, in order to refile Sanders
would have had to do so by January 24, 2006, because the statute of limitations resumed running on
January 21, 2006. We note that Sanders’ case was not dismissed until February 3, 2006.
¶10.
Furthermore, Rule 4(c) of the Mississippi Rules of Civil Procedure allows three methods
of service upon Mississippi residents: (1) process server, (2) sheriff, and (3) first-class mail.
Therefore, because Robertson is a Mississippi resident, Sanders could not use certified mail as an
initial method of effecting service of process upon her. Triple “C” Transp., Inc. v. Dickens, 870 So.
2d 1195, 1198-99 (¶21) (Miss. 2004). Rule 4(c)(3)(B) provides, “[i]f no acknowledgment of service
under this subdivision of this rule is received by the sender within 20 days after the date of mailing,
service of such summons and complaint may be made in any other manner permitted by this rule.”
Therefore, we find no error in the trial judge’s decision to dismiss Sanders’ case as there is no record
that Sanders properly served Robertson.
¶11.
Sanders next argues that he made a good faith effort to serve Robertson, but could not do so
because he could not locate her. We find that the record clearly belies this contention. Sanders
claimed in his notice of appeal that he had in fact mailed a certified letter to Robertson’s last known
address. In addition, Sanders stated that he “served Robertson with notice of the lawsuit” via
facsimile to Robertson at her place of employment. The record appears to substantiate Sanders’
claim as it contains what appears to be a fax of the notice of lawsuit and request for waiver of service
of summons. Nevertheless, Sanders still failed to properly serve Robertson.
4
¶12.
The Mississippi Rules of Civil Procedure do not allow for the use of facsimile transmission
to effect service of process. Thus, even if Sanders faxed a notice of lawsuit to Robertson, he still
would not have not have been in compliance with Rule 4(h). Moreover, the record indicates that the
fax was sent on February 27, 2006, after the case had been dismissed with prejudice. Thus, this Court
cannot accept Sanders’ contention that he made a good faith attempt to effectuate service.
¶13.
As further support for our ruling, we note that Sanders filed a “Motion to Enlarge Time” on
March 3, 2006, well after the expiration of the 120-day period. The Mississippi Supreme Court has
interpreted Rule 4(h) to stand for the proposition that “a plaintiff must serve a defendant with process
within 120 days or show good cause why service was not made.” Webster v. Webster, 834 So. 2d
26, 27-28 (¶4) (Miss. 2002) (quoting Watters v. Stripling, 675 So. 2d 1242, 1243 (Miss. 1996)).
Thus, if Sanders was in fact having difficulty locating Robertson, it was incumbent upon him to
petition the court for an extension of time prior to, rather than after, the expiration of the 120-day
period. Since no motion to enlarge time was filed, Sanders relies solely on a finding of good cause
to extend the time for service.
¶14.
Furthermore, the Mississippi Supreme Court has held that “to establish ‘good cause’ the
plaintiff must demonstrate ‘at least as much as would be required to show excusable neglect, as to
which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice.’”
Id. (quoting Peters v. United States, 9 F.3d 344, 345 (5th Cir. 1993)) (emphasis added).
Consequently, this Court must deny Sanders’ request that we excuse his errors due to his
inexperience with handling legal matters. This Court does not relax the Mississippi Rules of Civil
Procedure for pro se plaintiffs. In Perry v. Andy, 858 So. 2d 143, 146 (¶13) (Miss. 2003) (citing Ivy
v. Merchant, 666 So. 2d 445, 449-50 (Miss. 1995)), the Mississippi Supreme Court stated, “[p]ro se
litigants must be held to substantially the same standards of litigation conduct as members of the bar.”
5
The court also held that, “pro se plaintiffs must strictly comply with Miss. R. Civ. P. 4(h).” Id. at
¶14. Therefore, the trial judge properly dismissed Sanders’ case.
¶15.
Sanders argues that he is entitled to relief because the hearing was held in Scott County as
opposed to Neshoba County, where the accident occurred. Rule 2.02 of the Uniform Rules of Circuit
and County Court provides:
The court is empowered to hear and determine all motions, appeals or other
applications to the court, which the court may hear and determine without a jury, in
term or vacation, and may hear or determine the same in any county in the judicial
district of the court, or in a county to which venue has been transferred.
(emphasis added).
We point out that Scott County is located in the Eighth Circuit Court District, along with Leake,
Newton, and Neshoba counties. Miss. Code Ann. § 9-7-27. There is no merit to this issue.
¶16.
Sanders also contends that the trial court erred in granting Mississippi Farm Bureau Casualty
Insurance Company’s Motion to Dismiss. Despite Sanders’ contention, Mississippi clearly prohibits
direct actions against insurance companies. In Ford v. State Farm Ins. Co., 625 So. 2d 792, 795
(Miss. 1993) (citing Goodin v. Gulf Coast Oil Co., 241 Miss. 862, 133 So. 2d 623, 624 (1961)), the
Mississippi Supreme Court stated, “[i]n Goodin, this Court ruled that a direct action could not be
brought against an insurance company in Mississippi. . . .” Clearly, there is no merit to Sanders’
contention that his case was dismissed in error.
¶17. THE JUDGMENT OF THE NESHOBA COUNTY CIRCUIT COURT DISMISSING
THE ACTION WITH PREJUDICE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
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