E-Filed Document Sep :10: CA Pages: 17 IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI CASE NO.

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1 E-Filed Document Sep :10: CA Pages: 17 IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI CASE NO CA S&M TRUCKING, LLC APPELLANT VERSUS ROGERS OIL COMPANY OF COLUMBIA, INC. APPELLEE BRIEF OF APPELLEE, ROGERS OIL COMPANY OF COLUMBIA, INC. On Appeal from the Circuit Court of Marion County, Mississippi Civil Action No H ORAL ARGUMENT NOT REQUESTED Benjamin A. Snow, Esq. MSB Pittman Law Firm Post Office Drawer Hattiesburg, MS Telephone: (601) Facsimile: (601) Attorney for the Appellee

2 IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI S&M TRUCKING, LLC VERSUS ROGERS OIL COMPANY OF COLUMBIA, INC. APPELLANT CASE NO CA APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court and/or the Judges of the Court of Appeals may evaluate possible disqualification or recusal. 1. Rogers Oil Company of Columbia, Inc., Appellee (Charles L. Rogers, Jr., officer) 2. S&M Trucking, LLC (Michael Lee and Stephanie Lee, members) 3. Benjamin A. Snow, Esq., Pittman Law Firm, Counsel for Appellee 4. Daniel M. Waide, Esq., Johnson, Ratliff & Waide, PLLC, Counsel for Appellant 5. Honorable Prentiss G. Harrell, Presiding Judge in Marion County Circuit Court ii

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS...ii TABLE OF CONTENTS... iii TABLE OF AUTHORITIES...iv STATEMENT OF THE ISSUES...1 A. NATURE OF THE CASE...1 B. STATEMENT REGARDING ORAL ARGUMENT...1 C. COURSE OF THE PROCEEDINGS AND DISPOSITION BY THE TRIAL COURT...1 D. STATEMENT OF THE FACTS...2 SUMMARY OF THE ARGUMENT...5 ARGUMENT...6 CONCLUSION...11 CERTIFICATE OF SERVICE...13 iii

4 TABLE OF AUTHORITIES Cases Jones v. Chandler, 592 So.2d 966 (Miss. 1990)...6 Courtney v. McCluggage, 991 So.2d 642 (Miss. Ct. App. 2008)...6 Young v. Huron Smith Oil Co., Inc., 564 So.2d 36 (Miss. 1990)...6 Brown v. Brown, 493 So.2d 961 (Miss. 1986)...6 Schustz v. Buccaneer, Inc., 850 So.2d 209 (Miss. Ct. App. 2003)...6 O Neil v. O Neil, 515 So. 2d 1208 (1987)...6, 7 Orange Theater Corp. v. Rayherstz Amusement Corp., 139 F.2d 871 (3 Cal., 1944)...6, 7 Bryant, Inc. v. Walters, 493 So.2d 933 (Miss. 1986)...8 King v. Sigrest, 641 So. 2d 1158, 1162 (Miss. 1994)...11 Statutes Miss. Code Ann (b)...9 Miss. Code Ann Rules M.R.C.P M.R.C.P , 11 M.R.C.P , 11 iv

5 STATEMENT OF THE ISSUES I. Whether S&M Trucking, LLC waived its objection to insufficiency of process and lack of personal jurisdiction. II. III. IV. Whether S&M Trucking, LLC timely filed its Motion for post-judgment relief. Whether the Final Judgment is valid. Whether S&M Trucking, LLC was served with process according to law. V. Whether the Circuit Court of Marion County has subject matter jurisdiction over this matter. VI. Whether the Circuit Court of Marion County properly affirmed the Default Judgment. STATEMENT OF THE CASE A. Nature of the Case. This matter involves a Final Default Judgment entered by the Circuit Court of Marion County in favor of Appellee, Rogers Oil Company of Columbia, Inc. ( Rogers Oil ) for debts owed by Appellant, S&M Trucking, LLC ( S&M ), for goods delivered by Rogers Oil Company of Columbia, Inc. (R. 11) B. Statement Regarding Oral Argument. Pursuant to Mississippi Rule of Appellate Procedure 34, Appellee respectfully submits that oral argument is unnecessary. This appeal involves application of established law, and the adjudicated process would not be substantially aided by oral argument. C. Course of Proceedings and Disposition Below. Rogers Oil filed a Complaint in this cause in the Circuit Court of Marion County on May 21, 2013 for unpaid debts owed by S&M for goods delivered by Rogers Oil. (R. 4-6). Service of process was first attempted with a process server who was unsuccessful to serve either the agent for process or any officer of the company at the address listed by the Secretary of State, said address being 902 Longwood Place, Clinton, Mississippi. (R. 1). Rogers Oil then retained the 1

6 services of a private investigator who attempted to locate any agent for the company. After many trips to 902 Longwood Place in Clinton, Mississippi, said investigator was also unsuccessful serving process. (R ). After multiple extensions of time were granted, service of process was eventually perfected on S&M on March 6, 2014 by and through the Secretary of State as allowed under Mississippi Code (b). (R. 1) After no responsive pleading was filed and no appearance was made by S&M within the time allowed, the Circuit Court of Marion County entered a Final Default Judgment in favor of Rogers Oil for the amount of $28, on April 7, (R. 11). No payments on said Judgment have yet been made. S&M, through Counsel, signed an Agreed Order of Continuance for a Judgment Debtor Exam and Entry of Appearance on November 6, (R. 1). On November 10, 2014, Michael Lee appeared with Counsel, and participated on behalf of S&M in a Judgment Debtor exam. (R ). S&M filed a Motion to Set Aside Default Judgment on November 25, (R ). Rogers Oil filed its Response on December 4, 2014 as well as a Motion for Issuance of a Writ of Execution, and a Motion to Add Necessary Party Defendants. (R ). Through an Order entered on February 20, 2015, the trial court denied S&M s Motion to Set Aside Default Judgment, denied Rogers Oil s Motion for Writ of Execution, and allowed thirty [30] days for the individual members of S&M to respond before adding each of them personally. (R ). Said Order was then appealed to this Honorable Court by Appellant, S&M. (R ). D. Statement of the Facts. 1. S&M is a Mississippi Limited Liability Company whose Registered Agent is listed as Cheryl Green, 824 McClurer Road, Jackson, Mississippi,

7 2. S&M has two members, Stephanie Lee and Michael Lee, who reside at 902 Longwood Place, Clinton, Mississippi (R. 45). 3. Rogers Oil is a Mississippi Corporation, which is located in Columbia, Marion County, Mississippi. (R. 4). 4. S&M contacted Rogers Oil in Columbia, Mississippi about and entered into an oral agreement on open account for the purchase and delivery of fuel to be used in the operations of S&M. All agreements and arrangements for said transaction were made in Marion County. 5. After S&M repeatedly refused to pay for the delivered fuel, Rogers Oil filed suit for those debts in Marion County Circuit Court. (R. 4-6). 6. Service of Process was first attempted through Metro Process Servers, who reported that the Registered Agent was no longer at 824 McClurer Road, Jackson, MS. Metro Process Servers also attempted to serve an agent of the company at 902 Longwood Place, Clinton, MS, but was unsuccessful at that address also. (R. 1). 7. Rogers Oil then retained the services of the Barnett Group, private investigations. Chris Walker, of the Barnett Group, tracked Michael Lee. For more than three months, Mr. Walker and his associates visited 902 Longwood Place in Clinton, MS; interviewed neighbors; spoke with Michael Lee s mother; conducted internet research; and utilized other investigation techniques. After all of these efforts, the Barnett Group was unable to successfully serve process on S&M, neither through its Registered Agent or any officer. (R. 1) 8. Rogers Oil eventually perfected service on S&M by serving the Secretary of State according to Mississippi Code (b) on March 6, (R. 1) 9. Once served, S&M made no responsive pleading or entry of appearance within the allotted thirty days. An Entry of Default and Final Judgment was entered on April 7, (R. 11) 3

8 10. No satisfaction of any kind, partial or otherwise, has been received by Rogers Oil on said Judgment. 4

9 SUMMARY OF THE ARGUMENT This case involves a properly acquired Default Judgment for $28,208.48, which has yet to be satisfied. S&M purchased and acquired fuel from Rogers Oil, and Rogers Oil has not yet been compensated. Any objection that S&M may have had as to personal jurisdiction, venue, or service of process was waived when S&M made its initial appearance and also participated in a Judgment Debtor Exam without raising any objection to personal jurisdiction, venue, or service of process. S&M s motion for any post-judgment relief is untimely. S&M filed its Motion to Set Aside Default Judgment on November 26, 2014 (R. 16), more than seven [7] months after entry of Final Judgment. No rule of Civil Procedure allows for that much time to lapse prior to postjudgment relief. The officers of S&M are attempting to use the rules of service of process to aid them in avoiding adjudication. More than reasonable efforts were made to personally deliver the summons to Stephanie Lee or Michael Lee (R. 1), and not until the last resort was service through the Secretary of State utilized. Further, S&M has mistakenly confused venue and personal jurisdiction. Venue is equally as critical to the Plaintiff as the Defendant, and Marion County is one of the proper venues. If S&M had timely objected to that venue, then the only remedy, if granted, would have been transfer to the appropriate court. Regardless, S&M entered its appearance and participated in discovery without making any objection to personal jurisdiction, therefore S&M subjected itself to the jurisdiction of the Marion County Circuit Court and has waived any opportunity to object. No objection of any type was timely made; therefore this argument is without merit and should not be considered. 5

10 ARGUMENT I. S&M has Waived its Objection to Insufficiency of Process and Lack of Personal Jurisdiction Appellee argues that S&M did not raise either objection within the time prescribed by the rules. Furthermore, S&M entered its appearance through an Agreed Order to Continue a Judgment Debtor Exam on November 6, 2014 (R. 1), and then participated in said Exam without raising such objection. [O]bjections to personal jurisdiction must be asserted timely or they will be held waived. Jones v. Chandler, 592 So.2d 966, 970 (Miss. 1990). In Courtney v. McCluggage, 991 So.2d 642 (Miss. Ct. App. 2008), the Court speaks to service of process and personal jurisdiction: [T]he right to contest the court s jurisdiction based on some perceived problem with service may yet be lost after making an appearance in the case if the issues related to jurisdiction are not raised at first opportunity. Young v. Huron Smith Oil Co., Inc., 564 So.2d 36, (Miss. 1990). Thus, a defendant appearing and filing an answer or otherwise proceeding to defend the case on the merits in some way such as participating in hearing or discovery may not subsequently attempt to assert jurisdictional questions based on claims of defects in service of process. See Brown v. Brown, 493 So. 2d 961, 963 (Miss. 1986). Schustz v. Buccaneer, Inc., 850 So.2d 209, 213 (Miss. Ct. App. 2003). In Courtney, the Court continues, [a]s to the issue of whether or not the circuit court had in personam jurisdiction, we must determine whether [the Defendant] entered a general or special appearance in the Greene County Circuit Court. If [the Defendant] entered a general appearance, he will be deemed to have waived service of process and have subjected himself to jurisdiction of the court. Courtney v. McCluggage, 991 So.2d. 642 (Miss. Ct. App. 2008). In O Neil v. O Neil, 515 So. 2d 1208 (1987), the Court cites Orange Theater Corp. v. Rayherstz Amusement Corp., 139 F.2d 871 (3 Cal., 1944). In that case, the Court stated as follows: If the defense of lack of jurisdiction of the person is not raised by motion before answer or in the answer itself it is by the express term of paragraph (h) of Civil Procedure Rule 12 to be treated as waived, not because of the defendant s 6

11 voluntary appearance but because of his failure to assert the defense within the time prescribed by the rules. O Neil v. O Neil, 515 So. 2d 1208 (Miss. 1987) citing Orange Theater Corp. v. Rayherstz Amusement Corp., 139 F.2d 871 (3 Cal., 1944) This waiver not only applies to personal jurisdiction, but also insufficiency of service of process. Mississippi Rule of Civil Procedure 12(h)(1) states: A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by a motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course. S&M entered its appearance on November 6, 2014, participated in a Judgment Debtor Exam on November 10, 2014, and didn t raise any objection to personal jurisdiction, service of process, or venue until November 25, 2014 when it filed its Motion to Set Aside Default Judgment. (R. 1). Nevertheless, all of these objections must be made within thirty days after the service of the summons and complaint according to Mississippi Rule of Civil Procedure 12(a): Defenses and Objections - When and How Presented-By Pleading or Motion - Motion for Judgment on the Pleadings When presented. A defendant shall serve his answer within thirty days after the service of the summons and complaint upon him or within such time as is directed pursuant to Rule 4... Service of Process was completed on the S&M on March 6, No objection was made until November 25, 2014, more than eight months after service and more than seven months after entry of Judgment, and after an entry of appearance and participation in a Judgment Debtor Exam. (R. 1). Thus, because S&M did not file a timely objection to service of process or personal jurisdiction, and because S&M participated in a Judgment Debtor exam, S&M has waived all of these defenses or objections. 7

12 II. S&M s Motion for Relief from Judgment is Untimely Appellee argues S&M s motion for any relief from judgment is untimely. Rogers Oil filed a Complaint in this cause on May 21, 2013 for unpaid debts owed by S&M for goods delivered by Rogers Oil. (R. 3). The Honorable Court entered a Final Judgment granting the relief prayed for on April 7, (R. 11). S&M filed its Motion to Set Aside Default Judgment on November 25, 2014, (R. 16). more than seven [7] months after entry of Final Judgment. Rule 60 of the Mississippi Rules of Civil Procedure states any relief from judgment or order must be made within a reasonable time, and for reasons (1), (2) and (3) not more than six months after the judgment, order, or proceeding was entered or taken. In the Advisory Committee Note under Rule 60, it states that any extension beyond the six-month time frame can only be allowed when the delay in moving for relief was reasonable. There is no explanation as to why this motion was filed more than seven [7] months past entry of Judgment by this Court, and therefore any relief requested from said Judgment should be denied. III. The Judgment is Not Void Appellee argues that the judgment of the Marion County Circuit Court is not void. The portion of Rule 60(b) that allows leniency of the six-month requirement under reasonable circumstances requires the judgment to be void. The Mississippi Supreme Court addresses this point in a Jones County collection suit that involved open accounts, facts very similar to those in the present case. In Bryant, Inc. v. Walters, 493 So.2d 933 (Miss. 1986), the Court states: Supra at 936. In considering whether a judgment should be set aside because of its nullity, there is no discretion in the trial court. If a judgment is void it must be vacated. On the other hand, a judgment which is not a nullity cannot be set aside on this ground.. In this case clearly the Jones County Circuit Court had the authority to hear suits on open accounts and since personal service of process had been had upon Walters, it had authority to proceed in this case against him. 8

13 In the current cause, the S&M was served with process according to law and the Circuit Court of Marion County clearly has the authority to hear suits on open accounts, therefore the judgment in this cause is not void and cannot be set aside. IV. The S&M was Served with Process According to Law Notwithstanding the assertion that S&M untimely objected to sufficiency of service of process, Appellee asserts that proper service of process was made on S&M. In its Motion, S&M alleges that it was never served with process of law. The Marion County Circuit Clerk issued the original Summons for S&M on May 21, (R. 1). Rogers Oil utilized the services of Metro Process Services, Post Office Box 97665, Pearl, Mississippi for service of process on the registered agent for S&M Trucking, LLC. After several failed attempts to locate the registered agent, Rogers Oil prepared an Alias Summons which was issued for S&M Trucking, LLC c/o Michael Lee, Member on June 10, (R. 1). After repeated unsuccessful attempts by Metro to serve S&M Trucking, LLC through Michael Lee, Metro Processing returned both the original Summons and the Alias Summons to Rogers Oil as undeliverable. Rogers Oil then hired a private investigation firm, The Barnett Group, 986 Madison Avenue, Madison, Mississippi Investigators began searching for Michael Lee, Stephanie Lee, or any agent for process, and for more than three months made numerous visits to Michael and Stephanie Lee s residence in Clinton, Mississippi; interviewed neighbors; spoke with Michael Lee s mother; conducted internet research; and used other investigation techniques. These efforts are evidenced by the Barnett Group invoice. (R ). After all of these efforts, the Barnett Group was unable to successfully serve process on S&M Trucking, LLC. This is established by the Affidavit of Chris Walker with the Barnett Group filed in this cause on March 3, (R. 1). S&M has referenced Mississippi Code (b). That section states: If an entity that previously filed a registered agent filing with the Secretary of State no longer has a registered agent, or if its registered agent cannot with 9

14 reasonable diligence be served, the governors of the entity will be treated as the entity s agent for service of process who may be served pursuant to the provisions of the Mississippi Rules of Civil Procedure. The names of the governors and the address of the principal office may be as shown in the most recent annual report filed with the Secretary of State. If the governors of the entity cannot with reasonable diligence be served, service of process against the entity shall be upon the Secretary of State in accordance with the Mississippi Rules of Civil Procedure. As following the requirements of this Section, Rogers Oil made more than reasonable efforts to serve the agent of process first, then the governors of the limited liability company. All efforts were unsuccessful. After nearly ten months of attempted service, and multiple extensions of time, service of process was perfected on S&M Trucking, LLC on March 6, 2014 through the Mississippi Secretary of State, proof of which was filed with this Court on March 11, (R. 1). V. The Marion County Circuit Court has Subject Matter Jurisdiction Over this Cause Appellee asserts that the Marion County Circuit Court has subject matter jurisdiction over this cause. Mississippi Code states: The circuit court shall have original jurisdiction in all actions when the principal of the amount in controversy exceeds two hundred dollars, and of all other actions and causes, matters and things arising under the constitution and laws of this state which are not exclusively cognizable in some other court, and such appellate jurisdiction as prescribed by law... The Rogers Oil in this cause prayed for and was awarded an amount greater than two hundred dollars. (R. 3). Appellant has failed to demonstrate that another court had exclusive jurisdiction over this matter. No other court would be appropriate. VI. The Marion County Circuit Properly Denied the Motion to Set Aside Default S&M alleges that the Final Judgment in this matter should be set aside based on S&M not receiving a copy of the Motion for Entry of Default Judgment. Mississippi Rule of Civil Procedure 55(b) states in part: 10

15 ... If the party against whom judgment by default is sought has appeared in the action, he (or if appearing by representative, his representative) shall be served with written notice of the application for judgment at least three days prior to the hearing of such application; however, judgment by default may be entered by the court on the day the case is set for trial without such three days notice... S&M did not make an appearance nor file any responsive pleadings prior to default. (R. 1). Rule 55(b) requires no such notice in cases where no appearance has been made. Further, Rogers Oil was unable to determine an accurate location of any agent of the company to mail such a notice, and this is evidenced by the extensive efforts made during service of process. Rogers Oil further shows why the Marion County Circuit Court was correct in not setting aside default under Miss. R. Civ. P. 55(c). Rule 55 reads: (c) Setting Aside Default. For good cause shown, the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b). emphasis added The standard for setting aside an entry of default pursuant to M.R.C.P. 55(c) is more liberal than the standard for setting aside a default judgment pursuant to M.R.C.P. 60(b). King v. Sigrest, 641 So. 2d 1158, 1162 (Miss. 1994). The only remedy available to a defendant after judgment is Rule 60(b), and Rule 60(b) has time restrictions. As mentioned earlier, those deadlines had long passed and any request for relief under said rule was improper and should not be considered. CONCLUSION S&M should not be allowed to actively avoid service of process and then avoid a judgment for a valid debt. Yet that is exactly what Appellant is asking this Court to do. Once S&M entered its appearance in this cause without objection, it subjected itself to the jurisdiction of the Circuit Court of Marion County, and further waived any objection as to venue, personal jurisdiction, or service of process. Additionally, any request for post-judgment relief was untimely and should not be considered. 11

16 Further, service of process was completed according to law; proper default was attained; and the Final Default Judgment entered against S&M is valid and cannot be set aside according to Bryant. The arguments of S&M are without merit and should not be considered. WHEREFORE, PREMISES CONSIDERED, Appellee prays that this Brief be received and filed, and that after due consideration, this Court would deny the relief sought by the Appellant, affirm the Final Default Judgment of the Circuit Court of Marion County, and assess all costs of this Appeal to the Appellee. Respectfully submitted, this the 24th day of September, /s/ Benjamin A. Snow, Esq. Benjamin A. Snow MSB Pittman Law Firm Post Office Drawer Mayfair Road, Suite 700 Hattiesburg, MS (Office) (Fax) 12

17 CERTIFICATE OF SERVICE I, Benjamin A. Snow, do hereby certify that I have this date, electronically filed the foregoing Brief of the Appellee with the Clerk of the Supreme Court using the MEC system which sent notification of the same to the following: Daniel M. Waide, Esq MSB Johnson, Ratliff & Waide, PLLC 1300 Hardy Street Post Office Hattiesburg, MS (Office) (Fax) dwaide@jhrlaw.net Further, I, Benjamin A. Snow, do hereby certify that I have on this day, forwarded the above and forgoing Brief of the Appellee, by United States mail, postage prepaid to: Honorable Prentiss G. Harrell Marion County Circuit Court Judge Post Office Box 488 Purvis, MS So Certified this, the 24th day of September, /s/ Benjamin A. Snow, Esq. Benjamin A. Snow MSB Pittman Law Firm Post Office Drawer Mayfair Road, Suite 700 Hattiesburg, MS (Office) (Fax) ben@pittmanlawfirm.net 13