IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI CASE NO CA ASHLEY DARVILLE, INDIVIDUALLY And O/B/O THE ESTATE OF CAROL DARVILLE

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1 E-Filed Document Feb :28: CA Pages: 27 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI CASE NO CA ASHLEY DARVILLE, INDIVIDUALLY And O/B/O THE ESTATE OF CAROL DARVILLE APPELLANTS v. HECTOR MEJIA APPELLEE On Appeal From the Circuit Court of Holmes County, Mississippi; Cause No BRIEF OF APPELLEE, HECTOR MEJIA ORAL ARGUMENT NOT REQUESTED Walker R. Gibson, Esq., (MSB# ) Bradley Kelly, Esq., (MSB# ) Copeland, Cook, Taylor & Bush, P.A Highland Colony, Suite 100 Ridgeland, Mississippi Telephone (601) Attorneys for Hector Mejia

2 CERTIFICATE OF INTERESTED PARTIES The undersigned counsel of record for the Appellee 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 this Court may evaluate possible disqualification or recusal. 1. Ashley Darville, individually and o/b/o the Estate of Carol Darville, Appellants; 2. Daniel E. Morris; Daniel E. Morris Law Firm, PLLC, attorney for Appellants; 3. Lindsay Scott; Scott & Associates; attorney for Appellants; 4. Hector Mejia, Appellee; 5. Walker R. Gibson and Bradley S. Kelly; Copeland Cook Taylor & Bush, P.A., attorneys for Appellee; and 6. The Honorable Jannie M. Lewis, Holmes County Circuit Court Judge. ii

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PARTIES... ii TABLE OF CONTENTS... iii TABLE OF AUTHORITIES...v STATEMENT OF THE ISSUES...1 STATEMENT OF THE CASE...1 A. Nature of the Case, Course of Proceedings...1 SUMMARY OF THE ARGUMENT...5 ARGUMENT...6 A. Standard of Review...6 B. The Trial Court correctly found that Plaintiffs failed to show good cause or excusable neglect for their failure to timely serve Defendant with process in accordance with Rule 4(h)....6 i. Plaintiffs have never properly served process on Defendant in this matter...6 ii. Defendant, Hector Mejia, not United Automobile Insurance Company, filed his Motion to Dismiss and Plaintiffs standing argument is without merit...7 iii. Plaintiffs attempted service of process through the Mississippi Secretary of State was untimely, incomplete and insufficient...7 iv. Plaintiffs attempted service of process on United Automobile Insurance Company was untimely, improper and insufficient...9 v. Plaintiffs failed to show good cause or excusable neglect for their failure to timely serve process on Defendant...10 C. Defendant s special appearance did not waive his right to contest the Court s in personam jurisdiction arising from Plaintiffs failure to properly and timely serve process on Defendant...16 D. The Trial Court did not abuse its discretion in denying Plaintiffs Third Motion for Extension of Time for Service of Process on Defendant...17 iii

4 E. The Trial Court correctly found that the statute of limitations for Plaintiffs claims expired prior to Plaintiffs effecting service of process on Defendant and correctly dismissed Plaintiffs Complaint with prejudice...19 CONCLUSION...21 CERTIFICATE OF SERVICE...22 iv

5 TABLE OF AUTHORITIES Cases Bloodgood v. Leatherwood, 25 So.3d 1047 (Miss. 2010)... 8 Copiah County Sch. Dist. v. Buckner, 61 So.3d 162 (Miss. 2011) Cossitt v. Alfa Ins. Corp., 726 So.2d 132 (Miss. 1998) Fortenberry v. Memorial Hosp. at Gulfport, Inc., 676 So.2d 252 (Miss. 2008) Foss v. Williams, 933 So.2d 378 (Miss. 2008)... 11, 15 Heard v. Remy, 937 So.2d 939 (Miss. 2006) Holmes v. Coast Transit Auth., 815 So.2d 1183 (Miss. 2002) Jenkins v. Oswald, 3 So.3d 746 (Miss. 2009)... 14, 15 Johnson v. Thomas, 982 So.2d 405 (Miss. 2008) Jones v. Flowers, 547 U.S. 220, 126 S. Ct. 1708, 164 L.Ed. 2d 415 (2006)... 8 Kingston v. Splash Pools of Miss., Inc., 956 So.2d 1062 (Miss. App. 2007) Lewis Entm t Inc. v. Brady, 142 So.3d 396 (Miss. 2014)... 18, 19 Montgomery v. SmithKline Beecham Corp., 910 So.2d 541 (Miss. 2005)... 11, 16, 20 Nationwide Mut. Ins. Co. v. Tillman, 249 Miss. 141, 161 So.2d 604 (1964)... 8 O Leary v. Illinois Cent. R. Co., 69 So.2d 713 (Miss. 1915)... 11, 13 Raines v. Gardner, 731 So.2d 1192 (Miss. 1999) Rice v. McMullen, 207 Miss. 706, 43 So.2d 195 (1949)... 8 Schustz v. Buccaneer, Inc., 850 So.2d 209 (Miss. App. 2003) Shaver v. Blackwell, 43 So.3d 155 (Miss. App. 2010) Shelton v. Lift, Inc., 967 So.2d 1254 (Miss. App. 2007) Smith County School Dist. v. McNeil, 743 So.2d 376 (Miss. 1999) State Farm Mut. Auto. Ins. Co. v. Stewart, 209 So.2d 438 (Miss. 1968)... 8, 9 Stutts v. Miller, 37 So.3d 1 (Miss. 2010)... 6, 11, 20 Triple C Transp., Inc. v. Dickens, 870 So.2d 1195 (Miss. 2004) Turner v. Williams, 162 Miss. 258, 139 So. 606 (1932) Watters v. Stripling, 675 So.2d 1242 (Miss. 1996) Statutes Mississippi Code Ann , 9 Mississippi Code Ann , 5, 20 Rules Mississippi Rules of Appellate Procedure 3(c) Mississippi Rules of Civil Procedure 4(d)(1)(A)... 9 Mississippi Rules of Civil Procedure Rule 4(f)... 10, 12 Mississippi Rules of Civil Procedure 4(h)... 1, 5, 6, 10, 19, 20 Mississippi Rules of Civil Procedure 12(b)... 4, 17 v

6 STATEMENT OF THE ISSUES This case involves the application of Mississippi Rules of Civil Procedure 4(h) and the 120 day requirement for service of process after the filing of the Complaint. Plaintiffs, Ashley Darville, individually and o/b/o the Estate of Carol Darville, have failed to ever properly serve the Complaint and Summons on Defendant, Hector Mejia, even though their Complaint was filed almost two years, or 728 days, prior to the hearing on Defendant s Motion to Dismiss. Was the trial court within its discretion in granting Defendant s Motion to Dismiss and dismissing this case for Plaintiffs failure to show good cause as to why they failed to properly effect service on Defendant in accordance with Rule 4(h) and for Plaintiffs failure to timely serve process on Defendant prior to the expiration of the statute of limitations in accordance with Mississippi Code Ann ? It is Defendant s position that the trial court s ruling was correct and should be affirmed in all respects. STATEMENT OF THE CASE A. Nature of the Case, Course of Proceedings The underlying case stems from an automobile accident that occurred on or about August 8, 2009 on I-55, in Holmes County, Mississippi. The accident involved a vehicle driven by Ashley Darville and occupied by Carol Darville, deceased, and a vehicle driven by Hector Mejia. 1 Plaintiffs filed their Complaint on April 26, 2012 alleging that Hector Mejia was negligent in the operation of his vehicle and seeking damages for personal injuries and property damage. [R. 5-10]. The following timeline reflects the minimal actions taken by Plaintiffs in this case prior to the filing of Defendant s Motion to Dismiss: 1 The death of Carol Darville is not related in any way to the subject automobile accident. 1

7 DATE August 8, 2009 April 26, 2012 May 1, 2012 June 4, 2012 August 6, 2012 August 24, 2012 September 14, 2012 January 2, 2013 January 2, 2013 January 3, 2013 February 20, 2013 June 27, 2013 July 2, 2013 December 20, 2013 January 24, 2014 February 10, 2014 February 25, 2014 March 7, 2014 April 15, 2014 April 28, 2014 April 28, 2014 ACTION Date of accident Complaint filed Summons issued for service of process on Hector Mejia Summons returned (unable to deliver) Summonses issued for service of process on Hector Mejia at 3 different addresses (No returns filed) 120 days to serve process in accordance with Rule 4(h) expires Plaintiffs (untimely) Motion for Extension of Time for Service of Process on Defendant (No Order was entered) Plaintiffs (untimely) Second Motion for Extension of Time for Service of Process on Defendant Subpoena duces tecum issued for Shelby County, TN, Mississippi Department of Revenue and Tennessee Department of Public Safety (No proofs of service filed) Order Granting Plaintiffs Second Motion for Extension of Time for Service of Process on Defendant (Allowing 120 additional days) Summons issued for service of process on Hector Mejia (No return filed) Order Denying Plaintiffs Third Motion for Extension of Time for Service of Process on Defendant Plaintiffs (untimely) Third Motion for Extension of Time for Service of Process on Defendant Plaintiffs (untimely) Fourth Motion for Extension of Time for Service of Process on Defendant (No Order was entered) Summonses issued for service of process on Hector Mejia through United Automobile Insurance Company and the Mississippi Secretary of State Receipt of Summons by United Automobile Insurance Company as alleged agent for service of process of Hector Mejia Summons served on the Mississippi Secretary of State on behalf of Hector Mejia Defendant s Motion to Dismiss Summons return filed by the Mississippi Secretary of State as unclaimed Plaintiffs Response in Opposition to Defendant s Motion to Dismiss Hearing on Defendant, Hector Mejia s, Motion to Dismiss 2

8 May 15, 2014 Order Granting Defendant, Hector Mejia s, Motion to Dismiss [R. 3-4]. At the time Plaintiffs filed their Complaint, 106 days remained on the applicable three year statute of limitations. As evidenced by the timeline above, Plaintiffs made only four attempts to serve process on Defendant during the initial 120 days after the filing of their Complaint, which expired on August 24, However, a return of summons was only filed for the initial attempt to serve Defendant and reflected that service of process, via process server, was unsuccessfully attempted on May 30, [R ]. Based upon the documents attached to Plaintiffs first Motion for Extension of Time for Service of Process on Defendant, Plaintiffs attempted to serve the other three summonses via certified mail. [R ]. Even though they were unsuccessful in their attempts to serve process on Defendant, Plaintiffs failed to obtain any Order extending the time to serve process on Defendant until January 3, 2013, approximately 250 days after the filing of their Complaint. The Order granted Plaintiffs an additional 120 days, or until May 3, 2013, to serve process on Defendant. [R. 56]. At the request of Plaintiffs, subpoenas duces tecum were issued to the Shelby County, Tennessee Motor Vehicle Division, the Mississippi Department of Revenue, Motor Vehicle Licensing Bureau and the Tennessee Department of Public Safety. [R ]. The record is devoid of any proof that any of these subpoenas were ever served or what, if any, information was received in response to these subpoenas. During the additional 120 days authorized by the Court, Plaintiffs had one additional summons issued for Defendant. [R. 3-4]. The record is devoid of any evidence of Plaintiffs attempts to serve Defendant with this summons. Plaintiffs, while knowing that service had not been perfected on Defendant, again allowed the Court authorized 120 day extension of time to pass without seeking any additional 3

9 time to serve process on Defendant. It was not until 55 days after the extension expired, that Plaintiffs filed their Third Motion for Extension of Time to Serve Process on Defendant. [R ]. Plaintiffs did not provide any additional evidence to support their good cause for failure to effect service of process argument. Based upon the complete lack of evidence to show good cause and the fact that the extension was not granted within the prior 120 days extension granted by the trial court, the trial court entered an Order on June 27, 2013 denying Plaintiffs Third Motion for Extension of Time to Serve Process on Defendants. [R. 57]. Based upon the denial of Plaintiffs Third Motion for Extension of Time, Plaintiffs have been without authority of the trial court or Mississippi law to serve process on Defendant since at least May 3, The record is wholly devoid of any attempts whatsoever by Plaintiffs to serve process on Defendant from February 20, 2013 until approximately 11 months later, and over 290 days after the trial court s allowed extension of time had passed, when Plaintiffs requested the issuance of summonses to Hector Mejia, through his alleged agent for service of process, United Automobile Insurance Company, and to Hector Mejia through the Mississippi Secretary of State. [R. 3-4]. It is indisputable that theses summonses were issued and untimely served over 290 days after the Court authorized extension expired. After Plaintiffs attempted to obtain service of process through his insurance company, Hector Mejia, not United Automobile Insurance Company as alleged by Plaintiffs, appeared specially through counsel and while reserving all rights and defenses under Rules 8 and 12 of the Mississippi Rules of Civil Procedure, filed his Motion to Dismiss based upon Rules 12(b)(4), (5) and (6) of the Mississippi Rules of Civil Procedure, specifically raising the issues of insufficiency of process, insufficiency of service of process and failure to state a claim upon which relief can be granted. [R ]. Defendant s Motion further asserted that due to Plaintiffs failure to properly serve process, their claims were barred by the 3 year statute of 4

10 limitations set forth in Mississippi Code Ann As further evidence of the complete lack of diligence on the part of Plaintiffs, Plaintiffs did not file any response to Defendant s Motion to Dismiss until the day of the hearing on Defendant s Motion. [R ]. The only additional evidence offered by Plaintiffs in their response to support their good cause argument was the improperly and untimely summons served on Hector Mejia s insurer, United Automobile Insurance Company, and the untimely and the incomplete service of process served on Hector Mejia through the Mississippi Secretary of State. Id. Plaintiffs have failed to provide any sworn affidavits, dates or admissible evidence as to what efforts, if any, have been made to serve process on Defendant. During the hearing on Defendant s Motion to Dismiss, the trial court judge heard arguments of counsel and reviewed the scant evidence presented by Plaintiffs. [T. 1-15]. At the conclusion of the hearing, the trial court judge took the matter under advisement, and subsequently issued an Order Granting Defendant s Motion to Dismiss on May 15, 2014 finding that Plaintiffs had failed to show good cause for the failure to timely serve process on Defendants. The trial court also found that due to the failure of Plaintiffs to timely serve process, their claims were barred by the statute of limitations. [R ]. SUMMARY OF THE ARGUMENT Rule 4(h) of the Mississippi Rules of Civil Procedure provides that [i]f 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. It is undisputed that Plaintiffs failed to properly serve Defendant with a summons and Complaint within 120 days after the filing of the Complaint, or within the Court authorized 120 days 5

11 extension. As such, the trial court was well within its discretion in granting Defendant s Motion to Dismiss for Plaintiffs failure to timely serve Defendant. A. Standard of Review ARGUMENT A trial court s decision to grant or deny a motion to dismiss is reviewed de novo. However, this court leaves to the discretion of the trial court the finding of fact on the existence of good cause or excusable neglect for delay in serving process under Rule 4(h). Only where such discretion is abused or is not supported by substantial evidence will this Court reverse. Stutts v. Miller, 37 So.3d 1, 3 (Miss. 2010) (internal citations omitted). B. The Trial Court correctly found that the Plaintiffs failed to show good cause or excusable neglect for their failure to serve Defendant with process in accordance with Rule 4(h). i. Plaintiffs have never properly served process on Defendant in this matter. Rule 4(h) of the Mississippi Rules of Civil Procedure provides that [i]f 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. (Emphasis added). Plaintiff filed their Complaint on April 26, [R. 5-10]. As of the date of the trial court s Order Granting Defendant s Motion to Dismiss, more than 730 days had passed since the filing of Plaintiffs Complaint and Plaintiff had still not perfected service of process on Defendant. 6

12 ii. Defendant, Hector Mejia, not United Automobile Insurance Company, filed his Motion to Dismiss and Plaintiffs standing argument is without merit. In their Brief, Plaintiffs repeatedly assert that the Motion to Dismiss was brought by United Automobile Insurance Company and that United Automobile Insurance Company lacked standing to bring the Motion to Dismiss. [Appellants Brief at p ]. Plaintiffs have failed to cite any relevant authority in support of such claims, thus Plaintiffs have waived these claims on appeal. Plaintiffs also incredibly assert that [c]ounsel for UAIC, stated under oath that their firm s interest is only on behalf of UAIC in a statement to the court during the hearing on April 28, Id. Not only are Plaintiffs assertions completely false, they are intentional and blatant misrepresentations of the record in this case. Nowhere in the record did undersigned counsel state that they were representing anyone other than Hector Mejia. [T. 1-15]. A mere cursory review of Defendant s Motion to Dismiss reveals that the title of the Motion is Defendant, Hector Mejia s, Motion to Dismiss. [R ]. The Motion further states COMES NOW, Defendant, Hector Mejia (hereinafter Defendant ), appearing specially through counsel. [R. 105]. As the Motion was clearly brought by counsel on behalf Hector Mejia, not United Automobile Insurance Company, Plaintiffs lack of standing argument is without merit and the trial court properly considered and granted Defendant s Motion to Dismiss. iii. Plaintiffs attempted service of process through the Mississippi Secretary of State was untimely, incomplete and insufficient. Mississippi Code Ann provides that the acceptance by a nonresident motorist of the use of the roads, highways, etc. in Mississippi is deemed equivalent to an appointment by him of the Mississippi Secretary of State as his true and lawful attorney upon whom he may be served process or summons. It is not sufficient, however, merely to serve summons upon the Secretary of State. The statute provides that when it is served upon the Secretary of State, he shall mail as certified or registered mail to the last known address of the defendant 7

13 (to be shown on the summons) notice that the summons has been served upon him. There is to be enclosed with this letter a copy of the service. It is further required that a return receipt be requested and that the envelope be stamped for delivery to the addressee only. If the defendant signs a receipt for the letter, the receipt is forward by the Secretary of State to the clerk of the court which issued the summons and is evidence of fact that the defendant has had actual notice of the suit. If the defendant should refuse to accept delivery of the certified or registered letter, the envelope containing the summons would be returned to the Secretary of State; and thereupon evidence of the defendant s refusal to accept delivery of the certified or registered mail shall be filed with the clerk of the court which issued the summons. The defendant s refusal to accept such notice would prevent him from claiming lack of notice of the said suit. There is an additional way of obtaining service and that is by having someone personally deliver the summons to the defendant and file his affidavit to such effect in the court where the action is pending. State Farm Mut. Auto. Ins. Co. v. Stewart, 209 So.2d 438, (Miss. 1968). The statute provides three methods for effecting service of process on a nonresident defendant. It is essential to due process that a defendant have notice of an action against him. Id. The three methods above are the ones provided by the statute for conferring jurisdiction upon the local courts over a nonresident. This statute is to be strictly construed and the provisions thereof must be followed to give the court jurisdiction. Id. (citing Nationwide Mut. Ins. Co. v. Tillman, 249 Miss. 141, 161 So.2d 604 (1964); Rice v. McMullen, 207 Miss. 706, 43 So.2d 195 (1949)). When drafting our rules, this Court included the requirement that, for service to be effective, an undelivered mailing must have actually been refused by the defendant, as evidenced by the returned envelope marked refused. A return envelope marked unclaimed is insufficient to satisfy the requirements of Rule 4(c)(5). Additionally, the United States Supreme Court has held that a certified mailing returned as unclaimed is insufficient to satisfy constitutional due process requirements for service of process. Bloodgood v. Leatherwood, 25 So.3d 1047, 1051 (Miss. 2010) (citing Jones v. Flowers, 547 U.S. 220, 126 S. Ct. 1708, 164 L.Ed. 2d 415 (2006)). Defendant acknowledges that service of process on a nonresident defendant through the 8

14 Mississippi Secretary of State was an available method for serving process on the Defendant in this matter, so long as it was completed timely and in accordance with Mississippi Code Ann However, it was only after approximately 655 days and approximately 5 months after the Court s extended deadline that Plaintiffs untimely attempted to serve process on Defendant, through the Mississippi Secretary of State. [R ]. Additionally, the mailing forwarded to Defendant by the Secretary of State, via certified mail, was returned unclaimed. [R ]. The trial court found that even assuming that service of process was completed through the Secretary of State, service was untimely in that it was not perfected within the 120 day period prescribed by Rule 4, or within an applicable extension because the Court had not granted an extension that remained effective past on or about May 2, [R ]. The necessary facts to indicate effective service of process under Mississippi Code Ann do not appear in this case as there is no return receipt from Defendant; there is no evidence of refusal of the letter by Defendant; nor is there any evidence of the actual delivery of the process to him. Stewart, 209 So.2d at 440. Thus, Plaintiffs attempted service of process through the Secretary of State was untimely, improper and insufficient. iv. Plaintiffs attempted service of process on United Automobile Insurance Company was untimely, improper and insufficient. Rule 4(d)(1)(A) of the Mississippi Rules of Civil Procedure states in part that [s]ervice by sheriff or process sever shall be made as follows: [u]pon an individual other than an unmarried infant or mentally incompetent person, by delivering a copy of the summons and of the complaint to him personally or to an agent authorized by appointment or by law to receive process;... Defendant never appointed United Automobile Insurance Company as his agent for service of process, nor has United Automobile Insurance Company ever been appointed by law as his agent for service of process. In fact, during the hearing on Defendant s Motion to Dismiss, Plaintiffs counsel admitted that service of process through 9

15 United Automobile Insurance Company was invalid and improper. [T. 7]. Moreover, in its Order, the trial court stated that [e]ven assuming that [Defendant] had, in fact, appointed his insurance company as his agent, service was untimely in that it was not perfected within the 120 day period prescribed by Rule 4, or within an applicable extension because the Court had not granted an extension that remained effective past on or about May 2, [R ]. Untimely service of process is insufficient service of process. Heard v. Remy, 937 So.2d 939, 942 (Miss. 2006). Thus, it is undisputed that Plaintiffs attempted service of process on Defendant through United Automobile Insurance Company was untimely, improper and insufficient. Additionally, it is undisputed that Plaintiffs have not perfected personal service of process on Defendant, and as Plaintiffs attempted service of process on both the Secretary of State and United Automobile Insurance Company were untimely, improper and insufficient, the trial court was within its legal authority to grant Defendant s Motion to Dismiss. The trial court s ruling is further supported by the fact that as of the date of the trial court s Order, more than 730 days had passed since the filing of Plaintiffs Complaint and almost one year had passed since the trial court s previously granted extension of time. v. Plaintiffs failed to show good cause or excusable neglect for their failure to timely serve process on Defendant. Rule 4(h) of the Mississippi Rules of Civil Procedure provides that [i]f 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. (emphasis added). Rule 4(f) of the Mississippi Rules of Civil Procedure provides that [t]he person serving the process shall make a proof of service thereof to the court promptly. The burden is upon the plaintiff to demonstrate good cause for failure to timely serve process. More 10

16 is required than simple inadvertence, mistake of counsel, or ignorance of the rules... The standard is strict, and requires diligence. Montgomery v. SmithKline Beecham Corp., 910 So.2d 541, (Miss. 2005) (internal citations omitted)). If the plaintiff is unable to locate or serve the defendant within [the 120-day] time frame, the plaintiff has several options from which to proceed. The plaintiff may request additional time in which to file, dismiss and re-file the claim, or demonstrate to the court good cause as to why the defendant was not properly served within the time allowed, otherwise dismissal is proper. Kingston v. Splash Pools of Miss., Inc., 956 So.2d 1062, 1066 (Miss. App. 2007). In order to establish good cause exists for late service, a plaintiff must have made a diligent effort to effect service. Foss v. Williams, 933 So.2d 378, 379 (Miss. 2008). Good cause can never be demonstrated where plaintiff has not been diligent in attempting to serve process. Montgomery, 910 So.2d at 545. If it appears that process cannot be served within the 120-day period, a diligent plaintiff should file a motion for additional time to serve process. Stutts, 37 So.3d at 6. Failure to file the motion for additional time within the 120-day time period further supports a finding of lack of diligence on the part of the plaintiff. The filing of the motion alone, without obtaining an order also supports a finding of lack of diligence on the part of the plaintiff. A motion that is not ruled upon is presumed abandoned. Cossitt v. Alfa Ins. Corp., 726 So.2d 132, 135 (Miss. 1998). Our supreme court has stated that the court cannot rely solely on an inference based upon the unsworn statement of an attorney made during argument at a hearing without any evidence to support his assertion of fact. Smith County School Dist. v. McNeil, 743 So.2d 376, 379 (Miss. 1999). Unsworn statements and arguments of attorneys are not evidence or law in the case. O Leary v. Illinois Cent. R. Co., 69 So.2d 713, 715 (Miss. 1915). 11

17 As evidenced by the timeline supra, Plaintiffs allegedly made several attempts to serve process on Defendant during the initial 120 day after the filing of their Complaint, which expired on August 24, However, in violation of the requirements of Rule 4(f) of the Mississippi Rules of Civil Procedure, the return of summons was only filed for the initial attempt to serve Defendant and reflected that service of process, via process server, was unsuccessfully attempted on May 30, [R ]. Based upon the documents attached to Plaintiffs first Motion for Extension of Time for Service of Process on Defendant, Plaintiffs attempted to serve the other three summonses via certified mail. [R ]. Defendant asserts that Plaintiffs limited attempts to serve process during the initial 120-day period do not evidence diligence on Plaintiffs part. At the time Plaintiffs filed their Complaint; 106 days remained on the applicable three year statute of limitations. Even with full knowledge that Defendant had not been served with process during the initial 120-day time frame, Plaintiffs failed to file a Motion for Extension of Time until approximately 20 days after the 120-day period expired. [R ]. Although, Plaintiffs filed a Motion for Extension of Time on September 14, 2012, Plaintiffs failed to bring the Motion to the attention of the trial Court and thus the Motion is presumed to have been abandoned. [R. 3-4]. Plaintiffs took no further action or made any additional attempts to serve process on Defendant or seek an extension of time from the Court until January 2, 2013, over 130 days after the initial 120-day time period had expired. [R ]. On January 3, 2013, approximately 250 days after the filing of their Complaint, the trial court granted Plaintiffs Motion for Extension of Time thereby allowing Plaintiffs an additional 120 days, or until May 3, 2013, to serve process on Defendant. [R. 56]. At the request of Plaintiffs, subpoenas duces tecum were issued to the Shelby County, Tennessee Motor Vehicle Division, the Mississippi Department of Revenue, Motor Vehicle Licensing Bureau and the Tennessee Department of 12

18 Public Safety. [R ]. Again in violation of Rule 4(f), the record is devoid of any proof that any of these subpoenas were ever served or what, if any, information was received in response to these subpoenas. The only indication that the subpoenas were served is the unsworn statements of Plaintiffs counsel, which are not evidence that can be relied upon by the trial court. O Leary, 69 So.2d at 715. During the additional 120-day period authorized by the Court, Plaintiffs had one additional summons issued for Defendant. [R. 3-4]. The record is devoid of any evidence of Plaintiffs attempts, if any, to serve Defendant with this summons, and the only indication that Plaintiffs in fact attempted to serve Defendant with this summons is the unsworn statements of Plaintiffs counsel, which are not evidence that can be relied upon by the trial court. Id. Plaintiffs, while knowing that service had not been perfected on Defendant, again allowed the Court authorized additional 120 day extension of time to pass without seeking any additional time to serve process on Defendant. It was not until 55 days after the extension expired, that Plaintiffs filed their Third Motion for Extension of Time to Serve Process on Defendant. [R ]. Plaintiffs did not provide any additional evidence to support their good cause for failure to effect service of process argument. This time, however, the trial court entered an Order on June 27, 2013 denying Plaintiffs Third Motion for Extension of Time to Serve Process on Defendants and finding a complete lack of evidence to prove good cause and that the extension was not granted within the prior 120 days extension granted by the trial court. [R. 57]. Based upon the denial of Plaintiffs Third Motion for Extension of Time, Plaintiffs have been without authority of the trial court or Mississippi law to serve process on Defendant since at least May 3, This Court s analysis of this case should stop there because the Plaintiffs lacked any avenue to continue to pursue this case once the trial court denied their Motion for Extension of Time. 13

19 However, on or about December 20, 2013, Plaintiffs ignored the trial court s Order and filed their Fourth Motion for Extension of Time which did not provide any additional information to support their diligence or good cause basis for an extension of time to serve process on Defendant. [R ]. Due to Plaintiffs continued lack of diligence in this matter, Plaintiffs failed to bring the Motion to the Court s attention and obtain an Order. [R. 3-4]. Plaintiffs try to argue that their lack of diligence and disregard for the trial court s Order was due to difficulty locating the Defendant. They cite Fortenberry v. Memorial Hosp. at Gulfport, Inc., 676 So.2d 252, 256 (Miss. 2008) as an example of "good cause" where the defendant doctor had moved and was "difficult to locate." The Fortenberry case is distinguishable from this case in that Fortenberry met his burden of proof regarding good cause in that he filed two timely requests for extension of time to serve the doctor and he provided detail pertaining to his efforts to locate the doctor. Specifically, he contacted several hospitals, all defense counsel of record, and the state medical license board and ultimately he hired a private investigator. Id. at 255. Plaintiffs in this case have not provided any sworn detail of efforts during the times allowed by the trial court, if any, that they made to locate Defendant other than merely sending certified mail letters to random addresses. Additionally, the record is devoid of any attempts by Plaintiffs to hire a private investigator to locate Defendant. Likewise, Plaintiffs rely on Jenkins v. Oswald, 3 So.3d 746, 747 (Miss. 2009) as an example of reasonable diligence to locate a defendant who moved out of state. In that case, Oswald actually appeared at the motion to dismiss hearing and testified that in an attempt to locate defendant Jenkins she did the following: filed an official inquiry with the United States Postal Service; hired a process server in Florida; conducted monthly internet searches via "Google;" periodically received reports from Jenkins' friends; attempted to discover whether Jenkins had re-obtained a Mississippi driver's license; confronted Jenkins and requested his cell 14

20 phone number when she "ran into him" at a grocery store but later determined the cell number was "inactive;" and checked the Secretary of State site to see if he was affiliated with any valid business. Id. at 5-6, 14. Further, Jenkins testified at the hearing and the chancellor concluded that based on his testimony Jenkins "did not have an address that would be easily ascertained through" Google and searching telephone books. Id. at 11. Again with regard to this case, the record is void as to specifics of any effort, attempts, or inquiry, if any, Plaintiffs made to locate and serve Defendant. Plaintiffs also cite Foss, 993 So.2d at 379, presumably in support of their argument that they demonstrated "good cause." The facts and procedural history in this case are very different from the Foss case. Most notably in that Dr. Foss was served on the 121st day. Here, the Defendant was never served even after over 730 days after the Complaint was filed. Further, in Foss the plaintiff argued that the one day delay in service was a result of the conduct of a third person, local counsel. Plaintiffs have made no such argument in this case. During the more than 730 days from the filing of Plaintiffs Complaint until the trial court entered its Order Granting Defendant s Motion to Dismiss, Plaintiffs at most made seven attempts, two of which were service upon the Secretary of State and United Automobile Insurance Company, to serve process on Defendant. Only five of Plaintiffs attempts occurred during times that they were authorized by the Court to serve process. Four of Plaintiffs attempts were made within 120 days after filing their lawsuit, only one of which was attempted via a process server. Plaintiffs made one alleged attempt to serve process in 2013 and the remaining two attempts, one of which Plaintiffs admit was improper, were made in early [R. 3-4]. It cannot be lost that Plaintiffs have been without authority of the trial court to serve process since at least May 2, [R. 176]. Even if Plaintiffs had leave to attempt service of process after that date, Plaintiffs have failed to provide any sworn testimony, such as an affidavit 15

21 from a process server or anyone else with knowledge of what attempts and efforts were made, to show Plaintiffs alleged diligence in attempting to serve Defendant with process. Plaintiffs counsel, without any credible support whatsoever, has repeatedly asserted that Defendant is an illegal alien, drifter or vagrant. [R ]. The only document produced by Plaintiffs which could arguably support these assertions, is an undated LexisNexis background report. [R ]. The record is devoid of any evidence of when this background search was conducted, who conducted it, whether the background search was conducted during the time period authorized by the trial court for service or what, if any, efforts were made to contact any of the person associates or neighbors identified in the report. Based upon the minimal, at best, attempts made by Plaintiffs to serve Defendant, the lack of admissible evidence to support Plaintiffs alleged attempts, Plaintiffs repeated failure to timely file Motions for Extension of Time and the trial court s prior finding that Plaintiffs had failed to show good cause in support of the request for additional time, Plaintiffs have not been diligent and cannot show good cause or excusable neglect for their failure to serve process in this matter. Good cause can never be demonstrated where plaintiff has not been diligent in attempting to serve process. Montgomery, 910 So.2d at 545. C. Defendant s special appearance did not waive his right to contest the Court s in personam jurisdiction arising from Plaintiffs failure to properly and timely serve process on Defendant. A voluntary entry of appearance by a defendant no longer serves as a waiver of that defendant s right to subsequently contest the court s in personam jurisdiction arising from an alleged defect in the manner in which the defendant was served with process. See Raines v. Gardner, 731 So.2d 1192, (Miss. 1999). Thus, the earlier disputes over whether an appearance was a general appearance or a special appearance for the limited purposes of contesting the court s jurisdiction (or, in Mississippi at least, whether there was even such a thing 16

22 as a limited appearance; see Turner v. Williams, 162 Miss. 258, 139 So. 606 (1932)) have become moot. Schustz v. Buccaneer, Inc., 850 So.2d 209, 213 (Miss. App. 2003). It is undisputed that Defendant s Motion to Dismiss was filed for the purpose of contesting the court s jurisdiction over the Defendant due to the insufficiency and untimeliness of Plaintiffs attempted service of process on him in this matter. [R ]. The Motion was brought pursuant to Mississippi Rules of Civil Procedure 12(b) (4), (5) and (6) and also preserved all defenses available under Mississippi Rules of Civil Procedure 8 and 12. [R. 105]. Thus, regardless of whether this Court were to find that Defendant entered a general appearance and not a special appearance, Defendant s rights to contest the trial court s jurisdiction due to the deficiencies in Plaintiffs attempted service of process were properly asserted and Plaintiffs arguments in this regard are moot. Schustz, 850 So.2d at 213. D. The Trial Court did not abuse its discretion in denying Plaintiffs Third Motion for Extension of Time for Service of Process on Defendant. Mississippi Rules of Appellate Procedure 3(c) states [t]he notice of appeal shall specify the party or parties taking the appeal and the party or parties against whom the appeal is taken, and shall designate as a whole or in part the judgment or order appealed from. (Emphasis added). Plaintiffs Notice of Appeal makes no mention of the trial court s Order Denying Plaintiffs Third Motion for Extension of Time. [R. 181]. The Notice of Appeal only references that Plaintiffs are appealing the trial court s Order granting Defendant s (sic), Hector Mejia s, Motion to Dismiss entered in this case on May 15, Id. Therefore, Plaintiffs attempts to now raise an issue with the trial court s denial of the Third Motion for Extension of Time are barred. Assuming Plaintiffs attempts to raise these issues are not barred, the trial court did not abuse its discretion in denying Plaintiffs Third Motion for Extension. The trial court s determination whether there is good cause for failure to serve process is a discretionary ruling 17

23 on the part of the trial court and is entitled to deferential review of whether the trial court abused its discretion and whether there was substantial evidence supporting the determination. Lewis Entm t Inc. v. Brady, 142 So.3d 396, 398 (Miss. 2014). In their Second Motion for Extension of Time, Plaintiffs asserted that they desired to subpoena information from the Shelby County, Tennessee Motor Vehicle Division, the Mississippi Department of Revenue, Motor Vehicle Licensing Bureau and the Tennessee Department of Public Safety. [R ]. At the request of Plaintiffs, subpoenas duces tecum were issued to the Shelby County, Tennessee Motor Vehicle Division, the Mississippi Department of Revenue, Motor Vehicle Licensing Bureau and the Tennessee Department of Public Safety. [R. 3]. The record is devoid of any proof that any of these subpoenas were ever served or what, if any, information was received in response to these subpoenas. During the additional 120 days authorized by the Court, Plaintiffs had one additional summons issued for Defendant. [R. 3-4]. The record is devoid of any evidence of Plaintiffs attempts to serve Defendant with this summons. Plaintiffs, while knowing that service had not been perfected on Defendant, allowed the Court authorized additional 120 day extension of time to pass without seeking any additional time to serve process on Defendant. It was not until 55 days after the extension expired, that Plaintiffs filed their Third Motion for Extension of Time to Serve Process on Defendant. [R ]. Plaintiffs did not provide any additional evidence to support their good cause for failure to affect service of process argument. The Motion merely contained bare-bones assertions of Plaintiffs counsel regarding his efforts to locate and serve process on Defendant. Id. Plaintiffs failed to provide any sworn testimony, such as an affidavit from a process server or anyone else with knowledge of what attempts and efforts were made, to show Plaintiffs alleged diligence in attempting to serve Defendant. The trial court considered the Motion and found that 18

24 Plaintiff has failed to provide to the Court with sufficient evidence to find that good cause exists for the extension or that the extension is requested within the prior 120 days extension granted by this court for service of process, pursuant to Rule 4(2) of the Mississippi Rules of Civil Procedure. [R. 57]. Plaintiffs wholly failed to present any admissible evidence to support their argument of good cause, merely provided unsworn assertions of counsel as to only one alleged attempt by Plaintiffs to serve process on Defendant during the previously granted 120 days extension, and allowed the trial court s prior extension of time to expire by 55 days before filing the Third Motion for Extension. Absent admissible evidence of specific attempts and efforts to serve process on Defendant, we can neither find that [Plaintiff] was diligent nor find that she established good cause for her failure to time serve [Defendant]. Shaver v. Blackwell, 43 So.3d 155, 1158 (Miss. App. 2010). Based upon the foregoing facts and authorities, the trial court clearly did not abuse its discretion and there was substantial evidence supporting its determination to deny Plaintiffs Motion. Lewis Entm t Inc., 142 So.3d at 398. In accordance with Rule 4(h) of the Mississippi Rules of Civil Procedure, Plaintiffs Complaint should have been dismissed following the trial court s denial of Plaintiffs Motion for Extension of Time. E. The Trial Court correctly found that the statute of limitations for Plaintiffs claims expired prior to Plaintiffs effecting service of process on Defendant and dismissed Plaintiffs Complaint with prejudice. Based upon the arguments above, a dismissal without prejudice, pursuant to Rule 4(h) of the Mississippi Rules of Civil Procedure was appropriate regardless of the statute of limitations. In their brief, Plaintiffs do not cite any specific facts to support their argument that the statute of limitations has not expired, nor do they argue that the trial court improperly considered the statute of limitations in rendering its Order Granting Defendant s Motion to Dismiss. 19

25 Plaintiffs claims in this case are subject to Mississippi s general three year statute of limitations codified at Mississippi Code Ann In the event the action is commenced within the period of limitation, the statute of limitations stops running for a time. Triple C Transp., Inc. v. Dickens, 870 So.2d 1195, 199 (Miss. 2004) (citing Watters v. Stripling, 675 So.2d 1242, 1244 (Miss. 1996)). In Holmes v. Coast Transit Auth., 815 So.2d 1183, 1185 (Miss. 2002), this Court held that filing of a complaint tolls the applicable statute of limitations 120 days, but if the plaintiff fails to serve process on the defendant within the 120-day period, the statute of limitations automatically begins to run again when that period expires. Dickens, 870 So.2d at In order to further toll the statute of limitations, the plaintiff must then refile the complaint before the statute of limitations ends, or show good cause for failing to serve process on the defendant within the 120 day period; otherwise dismissal is proper. Id. Even when a plaintiff will be caused to lose a right of action because the running of the statute of limitations, the 120 day limitation period established by Rule 4(h) must be observed by the courts. Montgomery, 910 So.2d at 548 (citing Watters, 675 So.2d at 1244 ( The fact that dismissal may work to preclude this action because of the running of the statute of limitations is of no consequence. )). Although pursuant to Mississippi Rule of Civil Procedure 4(h), a dismissal for failure to show good cause why service was not obtained within the initial 120-day period is without prejudice, the trial judge correctly dismissed this case with prejudice since, as of [], the date of the entry of the Order Granting Motion to Set Aside Order Granting Additional Time to Serve Process and Dismissing Complaint with Prejudice, the three-year limitations period prescribed by the applicable statute, Mississippi Code Ann , had long since passed. Johnson v. Thomas, 982 So.2d 405, 415 (Miss. 2008); see also Copiah County Sch. Dist. v. Buckner, 61 So.3d 162, 171 (Miss. 2011), Stutts v. Miller, 37 So.3d 1, 6 (Miss. 2010) and Shelton v. Lift, Inc., 967 So.2d 1254, 1256 (Miss. App. 2007). 20

26 At the time Plaintiffs filed their Complaint, 106 days remained on the applicable three year statute of limitations. As evidenced by the timeline supra, the initial 120 day period after the filing of their Complaint, expired on August 24, Arguably, the statute of limitations began running again on August 24, 2012 and would have expired 106 days later. However, by Order of the trial court dated January 3, 2013, Plaintiffs were granted an additional 120 days in which to serve process on Defendant. [R. 56]. This extension in effect gave Plaintiffs 372 days from the date of the filing of the Complaint to serve process on Defendant. Even with this extraordinary amount of time, Plaintiffs failed to serve process on Defendant. Analyzing the facts in the light most favorable to Plaintiffs, the statute of limitations began to run again on May 4, 2013 and expired 106 days later on August 17, At the time the trial court entered its Order Granting Defendant s Motion to Dismiss on May 15, 2014, the statute of limitations had expired approximately 270 days prior. Thus, the trial court correctly dismissed Plaintiffs Complaint with prejudice. CONCLUSION For the reasons set forth herein, this Court should affirm the decision of the Trial Court and assess all cost of this appeal to the Appellants. RESPECTFULLY SUBMITTED, this the 23 rd day of February, HECTOR MEJIA, Appellee By: /s/: Bradley S. Kelly _ Walker R. Gibson, Esq., MSB Bradley Kelly, Esq., MSB Copeland Cook Taylor & Bush, P.A Highland Colony, Suite 100 Ridgeland, MS (601)

27 CERTIFICATE OF SERVICE I, Bradley S. Kelly, do hereby certify that I have this day forwarded, via ECF online system, a true and correct copy of the above document, which sent notification of filing to the following: Daniel E. Morris, Esq. Daniel E. Morris Law Firm, PLLC P.O. Box 1916 Cleveland, MS I, Bradley S. Kelly, do hereby further certify that I have this day forwarded, via first class U.S. Mail, postage prepaid, a true and correct copy of the above document to the following: The Honorable Jannie M. Lewis Holmes County Circuit Court P.O. Box 149 Lexington, MS THIS the 23 rd day of February, s/ Bradley S. Kelly Bradley S. Kelly 22