Loretta Milyanovich v. Douglas E. Feeley
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CA-00130-COA
LORETTA MILYANOVICH
APPELLANT
v.
DOUGLAS E. FEELEY
DATE OF 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:
MANDATE ISSUED:
APPELLEE
10/15/2007
HON. ROBERT P. KREBS
JACKSON COUNTY CIRCUIT COURT
DANIELLE KARIE BREWER
VIRGINIA L. CAROTHERS LOCOCO
H. BENJAMIN MULLEN
CIVIL - PERSONAL INJURY
DISMISSED FOR INSUFFICIENT SERVICE
OF PROCESS
APPEAL DISMISSED - 4/21/2009
BEFORE LEE, P.J., IRVING AND BARNES, JJ.
BARNES, J., FOR THE COURT:
¶1.
Loretta Milyanovich appeals the judgment of the Jackson County Circuit Court which
granted Douglas E. Feeley’s motion to dismiss for insufficient service of process.
Milyanovich filed suit against Feeley and Karlon J. Eckert for injuries she allegedly sustained
in a motor-vehicle accident that occurred on March 2, 2004, in Jackson County, Mississippi.
On appeal, Milyanovich argues that the circuit court erred in granting Feeley’s motion to
dismiss and that the circuit court erred in denying Milyanovich’s motion to reconsider the
order granting the motion to dismiss. Lacking proper appellate jurisdiction, we dismiss this
appeal.
STATEMENT OF THE FACTS AND PROCEDURAL HISTORY
¶2.
On March 2, 2004, Milyanovich was traveling northbound in her vehicle on Highway
613 in Moss Point, Jackson County, Mississippi. Feeley was traveling in his vehicle
southbound on Highway 613. Eckert was traveling in his vehicle westbound on Rosa Street,
which intersected Highway 613. Eckert failed to yield when crossing the southbound lane
of traffic resulting in a collision with Feeley, which pushed Eckert’s vehicle into the path of
Milyanovich’s vehicle on the northbound side of Highway 613. Milyanovich’s vehicle came
to rest in the southbound turning lane. At the time of the collision, Feeley told the police that
he was chasing a suspected shoplifter from his workplace, which was located along Highway
613. His estimated speed at the time of the accident was sixty miles per hour. At the time
of the accident, Feeley was seventeen years old and was driving a 1985 Mercury Grand
Marquis, which was owned by him with the registration address listed as 2056 Bass Drive,
Vancleave, Mississippi 39565. Feeley presented the police officer at the scene of the
accident with a valid Mississippi driver’s license indicating his date of birth and his home
address of 2056 Bass Drive, Vancleave, Mississippi 39565.
¶3.
On February 28, 2007, Milyanovich timely filed her complaint against Feeley and
Eckert in the Circuit Court of Jackson County alleging negligence as the proximate cause of
the injuries she sustained in the motor-vehicle accident. On March 1, 2007, summonses were
issued by the circuit clerk for both defendants, Feeley and Eckert. The summons for Feeley
listed his home address as 2056 Bass Drive, Vancleave, Mississippi 39565. Upon issuance,
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Milyanovich attempted to serve process on both Feeley and Eckert within the 120 days
allotted by Mississippi Rule of Civil Procedure 4(h). On April 16, 2007, and within the
allotted 120 days, Milyanovich, through E.F. McKenna, Jr., a private process server,
attempted to serve Feeley with process at 2056 Bass Drive, Vancleave, Mississippi 39565.
Feeley was not present at that time; so the process server attempted to effect substitute
service of process on Feeley by serving Feeley’s father, Thomas Feeley (Thomas).1 Copies
of the summons and complaint were then placed in the mail by the process server to Feeley
at the Bass Drive address. At the time of the alleged substitute service of process, it is
undisputed that Feeley was only twenty years old.
¶4.
Unable to effect service on Eckert and believing that service had been effected on
Feeley, Milyanovich filed a motion for extension of time to serve process on Eckert on June
14, 2007, which the trial court granted.
¶5.
From the date of the alleged substitute service of process on Feeley’s father, Feeley’s
response would have been due on May 16, 2007. No responsive pleading was filed on
Feeley’s behalf until August 10, 2007, at which point he filed a motion to dismiss pursuant
to Rules 4(h) and 12(b)(4) and (5) of the Mississippi Rules of Civil Procedure proposing
1
There is conflict surrounding Thomas’s actions regarding this attempt at service.
McKenna’s affidavit dated October 17, 2007, states that Thomas indicated to McKenna that
his son, Feeley, did reside at the 2056 Bass Drive residence; he was merely out of town for
the week; and he (the father) would present the summons and complaint to his son, Feeley,
promptly upon his return home. According to Thomas’s affidavit dated August 9, 2007,
Thomas refused to accept service on behalf of his son, warned the process server that his son
did not live at the Bass Drive address, and indicated that he would not forward the summons
and complaint to his son if the documents were left in his possession. The process server left
the documents in his possession anyway.
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dismissal based on insufficient process and insufficient service of process. Feeley supports
this proposition through his own affidavit dated August 10, 2007, which indicates that while
his parents live at the Bass Drive address, he had not lived there since moving to Louisiana
at age sixteen (save for the first few months of 2005); he was under the age of twenty-one
on April 16, 2007; and he has never been served with any process or pleadings in the case
styled Milyanovich v. Feeley and Eckert. In response to Feeley’s motion to dismiss,
Milyanovich filed an Opposition to Defendant’s Motion to Dismiss or, in the Alternative,
Motion to Extend Service Deadline and Motion for Sanctions and Supplement in Support of
Same. Milyanovich’s Opposition and Supplement in Support claims that substitute service
of process was made properly on Feeley’s father and on Feeley via the United States Postal
Service at the address listed on his driver’s license and on the police report. She further
claims that Feeley’s right to claim insufficiency of process under Mississippi Rule Civil
Procedure 12(h) should be deemed waived due to his untimeliness in raising the issue.
Milyanovich also asserts that because Feeley and his father were dishonest regarding
Feeley’s proper address, Milyanovich has shown good cause for allowing additional time to
cure any defects in the original attempt to serve Feeley. Feeley’s reply brief argues that the
alleged substitute service of process on him was fundamentally flawed because he was a
minor at all pertinent times during the pendency of the litigation, and he was never served
as a minor as required by Mississippi Rule of Civil Procedure 4(d)(2)(A).2
2
The Mississippi Rules of Civil Procedure require that, “for unmarried minors over
the age of twelve, process must be served upon both the minor and the parent.” Davis v.
Seymour, 868 So. 2d 1061, 1063 (¶ 7) (Miss. Ct. App. 2004) (citing M.R.C.P. 4(d)(2)(A)).
“A minor cannot waive process required by law, and the Court has no jurisdiction of the
4
¶6.
After hearing the fully briefed motion to dismiss, the circuit court found in favor of
Feeley and dismissed him as a defendant without prejudice. Milyanovich then filed a Rule
59 Motion to Reconsider Order Granting Motion to Dismiss and Judgment Thereon.3 After
a hearing on the fully briefed Rule 59 motion, the circuit court entered a judgment denying
Milyanovich’s Rule 59 motion. Milyanovich then filed a notice of appeal.
DISCUSSION
¶7.
While the parties have not raised an issue as to whether the circuit court’s judgment
is appealable, we must address this question “on our own initiative.” Williams v. Delta Reg’l
Med. Ctr., 740 So. 2d 284, 285 (¶5) (Miss. 1999) (citing Cox v. Howard, Weil, Labouisse,
Friedrichs, Inc., 512 So. 2d 897, 899 (Miss. 1987) (sua sponte dismissing appeal for
improper Rule 54(b) certification)). “Generally, only final judgments are appealable.”
M.W.F. v. D.D.F., 926 So. 2d 897, 899 (¶4) (Miss. 2006).
¶8.
In order to determine if a judgment or order is appealable, we must look at Rule 54(b)
of the Mississippi Rules of Civil Procedure which states that:
Judgment upon multiple claims or involving multiple parties. When more than
one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved,
the court may direct the entry of a final judgment as to one or more but fewer
than all of the claims or parties only upon an express determination that there
is no just reason for delay and upon an expressed direction for the entry of
judgment. In the absence of such determination and direction, any order or
other form of decision, however designated which adjudicates fewer than all
of the claims or the rights and liabilities of fewer than all the parties shall not
terminate the action as to any of the claims or parties and the order or other
person until process has been served upon the minor and his parents, or persons standing in
loco parentis.” In Interest of Edwards, 298 So. 2d 703, 704 (Miss. 1974).
3
Mississippi Rule of Civil Procedure 59.
5
form of decision is subject to revision at any time before the entry of judgment
adjudicating all the claims and rights and liabilities of the parties.
The comment to this rule explains that:
The rule does not require that a judgment be entered when the court disposes
of one or more claims or terminates the action as to one or more parties.
Rather, it gives the court discretion to enter a final judgment in these
circumstances and it provides much needed certainty in determining when a
final and appealable judgment has been entered. If the court chooses to enter
such a final order, it must do so in a definite, unmistakable manner.
M.R.C.P. 54(b) cmt. The Mississippi Supreme Court has stated that “[w]ithout the entry of
a Rule 54(b) certificate, a trial court order[,] which disposes of less than all of the claims
against all of the parties in a multiple party or multiple claim action, is interlocutory.”
M.W.F., 926 So. 2d at 900 (¶4) (quoting Owens v. Nasco Int’l, Inc., 744 So. 2d 772, 774
(Miss. 1999)).
¶9.
Here, Milyanovich filed her claim against multiple defendants, namely Feeley and
Eckert. When the circuit court dismissed Feeley from the action, its order of dismissal did
not entirely terminate the action, thereby leaving Milyanovich’s claims against Eckert nonadjudicated and pending at the trial level. On its face, the order is not certified as a final
judgment in accordance with Rule 54(b) of the Mississippi Rules of Civil Procedure.
Accordingly, the order is interlocutory and not appealable.
CONCLUSION
¶10.
The circuit court’s order dismissing Feeley was not certified pursuant to Rule 54(b)
and was, thereby, not a final judgment for the entire action. Accordingly, this order is
interlocutory and not appealable; therefore, we dismiss this appeal for lack of jurisdiction.
¶11.
THE APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE
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ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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