IN THE MISSISSIPPI SUPREME COURT OF MISSISSIPPI COURT OF APPEALS NO CA COA

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1 E-Filed Document Apr :19: CA COA Pages: 18 IN THE MISSISSIPPI SUPREME COURT OF MISSISSIPPI COURT OF APPEALS ASHLEY DARVILLE, INDIVIDUALLY And O/B/O THE ESTATE OF CAROL DARVILLE VS. APPELLANTS NO CA COA HECTOR MEJIA APPELLEE ON APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT OF HOLMES COUNTY, MISSISSIPPI THE HONORABLE JANNIE LEWIS REPLY BRIEF OF APPELLANTS ASHLEY DARVILLE, INDIVIDUALLY And O/B/O THE ESTATE OF CAROL DARVILLE ORAL ARGUMENT NOT REQUESTED Daniel E. Morris, MSB# DANIEL E. MORRIS LAW FIRM, PLLC. P.O. Box Baton Rouge, LA P: F: Web: PRO HAC VICE: Lindsey Scott, LAB#25868 SCOTT & ASSOCIATES 632 St. Ferdinand Street Baton Rouge, LA P: (225) F: (225)

2 IN THE MISSISSIPPI SUPREME COURT OF MISSISSIPPI COURT OF APPEALS ASHLEY DARVILLE, INDIVIDUALLY And O/B/O THE ESTATE OF CAROL DARVILLE VS. HECTOR MEJIA APPELLANTS NO CA COA 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. Ashley Darville, individually and o/b/o Carol Darville Hector Mejia Bradley S. Kelly Walker R. Gibson Daniel E. Morris Lindsey Scott (Previous) Honorable Jannie M. Lewis P.O. Box 149 Lexington, MS Victoria Reeves P.O. Box 149 Lexington, MS Appellants Appellee Attorney for Appellee Attorney for Appellee Attorney for Appellants Attorney for Appellants Circuit Court Judge Holmes County Court Reporter 2

3 This, the 13 th day of April, Respectfully Submitted, BY: /s/: Daniel E. Morris DANIEL E. MORRIS, MSB# LINDSEY SCOTT, LAB#25868 Attorney for Appellants OF COUNSEL: DANIEL E. MORRIS LAW FIRM, PLLC. P.O. Box Baton Rouge, LA P: F: Web: SCOTT & ASSOCIATES 632 St. Ferdinand Street Baton Rouge, LA P: (225) F: (225)

4 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS 2-3 TABLE OF CONTENTS 4 TABLE OF AUTHORITIES.5-6 STATEMENT OF ISSUES...7 SUMMARY OF ARGUMENT ARGUMENT A. Overabundance of Good Cause 8-11 B. Standing to Bring Motion to Dismiss CONCLUSION CERTIFICATE OF SERVICE

5 TABLE OF AUTHORITIES Statutes: Ms. Code Ann (Rev. 2001). Rules: Cases: Mississippi Rules of Appellate Procedure Rule 4(h). Arrow Food Distributors, Inc. v. Love, 361 So.2d 324 (Miss.1978), cert. denied, 439 U.S. 1073, 99 S.Ct. 845, 59 L.Ed.2d 39 (1979). Bang v. Pittman, 749 So.2d 47, 52 (Miss.1999). Burleson v. Lathem, 968 So.2d 930 (Miss. 2007). Evans v. Oberon Holding Corp., No. 97-CA COA, 1998 WL , at *3 (Miss.Ct. App., August 18, 1998). Floyd v. Floyd, 949 So.2d 26, (Miss.2007). Fortenberry v. Memorial Hospital at Gulfport, Inc., 676 So.2d 252, (Miss.1996). Foss v. Williams, 993 So.2d 378, 379 (Miss. 2008). Heard v. Remy, 937 So.2d 939, 944 (Miss.2006). Holmes v. Coast Transit Auth., 815 So.2d 1183, 1185 (Miss.2002). Jenkins v. Oswald, 3 So. 3d 746 (Miss. 2009). Johnson v. Thomas ex rel. Polatsidis, 982 So.2d 405, 409 (Miss.2008). Long v. Mem'l Hosp. at Gulfport, 969 So.2d 35, 38 (Miss.2007). Martin v. Lowery, 912 So.2d 461, (Miss.2005). Mladinich v. Kohn, 250 Miss. 138, 156, 164 So.2d 785, 791 (1964). Montgomery v. SmithKline Beecham Corp., 910 So.2d 541, 546 (Miss. 2005). Rains v. Gardner, 731 So.2d 1192, 1197 (Miss.1999). 5

6 Sandifer v. Sandifer, 237 Miss. 464, 115 So.2d 46 (1959). Scaggs v. GPCH-GP, Inc., 931 So.2d 1274, 1275 (Miss.2006). Sullivan v. Trustmark Nat'l Bank, 653 So.2d 930, 931 (Miss.1995). Systems Signs Supplies v. U.S. Dep't of Justice, 903 F.2d 1011, 1013 (5th Cir.1990). Watters v. Stripling, 675 So.2d 1242, 1243 (Miss.1996). 6

7 I. STATEMENT OF ISSUES (1) APPELLANTS EVIDENCED AN OVERABUNDANCE OF GOOD CAUSE TO THE TRIAL COURT. (2) WHETHER UAIC LACKED STANDING TO BRING A MOTION TO DISMISS PLAINTIFF S {APPELLANTS } COMPLAINT? II. SUMMARY OF ARGUMENT As stated in Appellants Brief, the trial court abused its discretion in denying appellant s motion for extension of time on June 27, 2012, in that Appellants had good cause for their inability to serve Appellee. A trial court's decision to grant or deny a motion to dismiss is reviewed de novo. Scaggs v. GPCH-GP, Inc., 931 So.2d 1274, 1275 (Miss.2006). However, [t]he 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). Johnson v. Thomas ex rel. Polatsidis, 982 So.2d 405, 409 (Miss.2008) (quoting Long v. Mem'l Hosp. at Gulfport, 969 So.2d 35, 38 (Miss.2007)). Only [w]here such discretion is abused or is not supported by substantial evidence will the Court reverse. Moreover, the trial court erred in granting the motion to dismiss Appellants complaint as the motion was not brought by Appellee, but by his insurance company, UAIC, who lacked standing to bring the motion. Pursuant to, M.R.C.P. 4(h) a party shall be dismissed from an action if service is not had on that party within 120 days absent good cause shown. It further provides that this dismissal shall be sua sponte "or on motion." The last three words "or on motion" logically apply to the party upon whom process is not timely had. Such party is the only party to have standing to make such motion. 7

8 III. ARGUMENT A. APPELLANTS EVIDENCED AN OVERABUNDANCE OF GOOD CAUSE TO THE TRIAL COURT. Mississippi Rule of Civil Procedure 4(h) states: 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. Appellee seeks to mislead this Honorable Court by stating that Appellants only made four (4) attempts to serve Appellee. Appellants contracted with a process server that made multiple attempts to serve Appellee at multiple addresses. Appellants further mailed a copy of the summons and complaint via certified mail to multiple addresses. Moreover, Appellants paid fees and used a person locater to try and locate Appellee, as well as, researched different social media accounts. Appellants also served subpoenas, performed google searches, public record searches, etc. to locate Appellee. All of these attempts were stated in the record and Appellee fails to mention these attempts by Appellants within his brief, therefore, attempting to mislead this Honorable Court. Appellants have evidenced an overabundance of proof of their diligence in locating the Appellee to the trial court. Appellants did not stop their search for Appellee and their attempt to serve him with process. In order to establish good cause for late service, a plaintiff must have been diligent in its efforts to effect service. Foss v. Williams, 993 So.2d 378, 379 (Miss. 2008) (citing Montgomery v. SmithKline Beecham Corp., 910 So.2d 541, 546 (Miss. 2005». The following are instances where good cause was recognized to have existed: when a third person's conduct resulted in the failure; when the defendant evaded service of 8

9 process or engaged in misleading conduct; when plaintiff acted diligently; when understandable mitigating circumstances existed; or when the plaintiff proceeded pro se or in forma pauperis. Holmes v. Coast Transit Auth., 815 So.2d 1183, 1186 (Miss. 2002). "Good cause" can never be demonstrated where plaintiff has not been diligent in attempting to serve process. Bang v. Pittman, 749 So.2d 47, 52 (Miss.1999). In demonstrating good cause and diligence, a plaintiff must show that he or she has been unable to serve process because the defendant evaded process or engaged in misleading conduct, or for some other acceptable reason, as discussed in Holmes, 815 So.2d at Burleson v. Lathem, 968 So.2d 930 (Miss. 2007). All three instances stated above exist in the present case before this Honorable Court. Appellee has evaded service of process in that he is either a vagrant or an illegal immigrant; Appellee has engaged in misleading conduct by (1) having a fake address listed on his driver license; (2) having multiple addresses, social security numbers and names; Appellants were diligent in trying to effectuate service on Appellee by (1) hiring a process server; (2) performing multiple searches for Appellee (3) attempting to serve Appellee at his multiple addresses; and there are understandable mitigating circumstances that exist for all the aforementioned reasons and that Appellee s own insurance company cannot locate him and/or does not know Appellee s whereabouts. Appellee s recitation of the Fortenberry and Jenkins case provides further evidence that the trial court acted without discretion. The Supreme Court upheld both of these cases finding that the defendants were difficult to locate and that plaintiff s counsel 9

10 was aware of the rules. Further, in Jenkins, a period of four (4) years had passed from the time the defendant was served. 1 Appellants were diligent in requesting four (4) extensions of time to serve Appellee from the Court. Appellants June 24, 2012 motion was denied by the Court, with no substantial evidence supporting the determination. In the present case, Appellants produced and evidenced that they had cause, as well as, good cause, for their inability to serve Appellee. Appellee is linked to eighteen (18) different residences, has a social security number linked to multiple individuals, has eleven (11) different aliases, multiple judgments and has multiple driver s licenses in different states. Appellants attempted multiple times to serve Appellee and researched and investigated the different addresses, aliases and listed family members, but to no avail. Appellants issued and served subpoenas to gather information on Appellees whereabouts; searched social media; did a thorough investigation of his internal revenue records, driving and license records, but to no avail. Appellants contacted the trial court via telephone to explain their position and issues with the ability to find and serve Appellee. 2 1 Fortenberry v. Memorial Hospital at Gulfport, Inc., 676 So.2d 252, (Miss.1996), wherein this Court determined that good cause was shown in trying to serve one of the defendants. In Fortenberry, the plaintiff could not locate the defendant, not simply because he had moved, but because the defendant had relocated from the Gulf Coast to Oxford. Also, in trying to locate the defendant, the plaintiff had requested and received two grants of additional time from the trial court, had written a letter advising the trial court that the defendant could not be found, and ultimately had hired a private investigator to locate the defendant. The Court stated: Here, we are not faced with simple inadvertence, mistake of counsel, or ignorance of the rules. Fortenberry's counsel was clearly aware of the rules. The Supreme Court found good cause "because of the extensive efforts to locate and serve the defendant." Specifically, the Court stated that the defendant was difficult to locate and serve with process. Jenkins v. Oswald, 3 So. 3d 746 (Miss. 2009), the Mississippi Supreme Court upheld the trial court's denial of defendant's motion to dismiss, despite the fact that plaintiff had never filed for an extension of time and five years had passed between the filing of the complaint and service of process. After unsuccessfully attempting to serve defendant, plaintiffs only efforts to locate defendant involved "Google" searches via the Internet. Id. at 748. Plaintiff was eventually able to track down defendant after fortuitously seeing him in a local television commercial. Id. The defendant had also moved out of state. Id The trial court denied defendant's motion to dismiss stating that the delay was acceptable considering plaintiff had exercised reasonable diligence. Id. at 749. The Supreme Court of Mississippi affirmed the ruling. Id. at Id (6). 10

11 Moreover, as of this date, Appellee has not and can t be located by Appellants, the courts, nor his own insurance carrier, UAIC. As articulated multiple times to the trial court, Appellee upon information and belief is an illegal immigrant that is evading and/or refusing service. During the hearing on UAIC s motion to dismiss, the court never at any time requested that the Appellee be produced by UAIC, to know his whereabouts or if UAIC had been successful in finding their own insured. Neither party, nor the court can locate Appellee, thereby evidencing Appellants good cause for not being able to serve Appellee. B. UAIC LACKED STANDING TO BRING A MOTION TO DISMISS PLAINTIFF S {APPELLANTS } COMPLAINT. The trial court abused its discretion by granting UAIC s motion to dismiss the complaint of Appellants. M.R.C.P. 4(h) simply provides that a party shall be dismissed from an action if service is not had on that party within 120 days absent good cause shown. It further provides that this dismissal shall be sua sponte "or on motion." The last three words "or on motion" logically apply to the party upon whom process is not timely had. Such party is the only party to have standing to make such motion. UAIC in their Motion to Dismiss asserts that they are not the Appellee s agent for service of process and have never been appointed as his legal representative. 3 Therefore, UAIC, lacks standing to enter into court on the behalf of Appellee and file a motion to dismiss Appellants complaint. UAIC is not an interested party and pursuant to M.R.C.P. 4 (h), the only party to have standing to make such a motion is the party upon whom process is not timely had. 3 Id (7). 11

12 UAIC seeks to have it both ways. On one hand they refuse to accept service on behalf of Appellee, but on the other hand seek to enter a special appearance to have the matter dismissed on behalf of the Appellee. Either they are the legal representatives or they are not the representatives of the Appellee. Counsel 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, Counsel stated that his law partner is the registered agent for service of process for UAIC and admits that they are not the party subject to process 4 and therefore, not the correct party to have standing to make a motion of dismissal. The court erred in granting the motion of UAIC on behalf of Appellee, because UAIC made sworn statements and asserted that they were not an interested party and/or legal representative of Appellee. Further, UAIC, as his insurance company cannot locate the whereabouts of their own insured. Appellee is subject to process and the only party that has standing to bring a motion of dismissal. Moreover, it is an injustice to bar Appellants from any claim that they may have against any assets that Appellee may have. Appellee can be held personally liable based on his own assets. This is the intent of Mississippi not upholding a direct action statute within the State. An injured party may not directly seek an action against an insurance company, but must pursue the action against the party that caused the injury. Mississippi law makes it clear that the only party that may be sued is the party causing the injury and/or damages. In the present case, UAIC, is only a third party to the lawsuit and cannot act on the behalf of Appellee until Appellee notifies his insurance company of the lawsuit against him. There is no action against UAIC, only against Appellee. The motion filed by UAIC is moot. Pursuant to Mississippi law, no controversy can exist between 4 RE: Exhibit G- Hearing Transcript (pg. 3; 15-18; pg. 12; 14-29). 12

13 Appellants and UAIC, because an insurance company can t be sued directly. For the court to dismiss Appellants cause of action on the motion of (1) a party that is not subject to process, (2) is not a party litigant and (3) clearly lacks standing is an injustice and in direct violation of Mississippi law. In the alternative, if this Honorable Court finds that UAIC had standing to file the Motion to Dismiss on behalf of Appellee, then Appellee has entered a general appearance and waived process and service. Pursuant to Mississippi jurisprudence, Mississippi does not recognize "special appearances" except where a party appears solely to object to the court's jurisdiction over his person on grounds that he is not amenable to process. Mladinich v. Kohn, 250 Miss. 138, 156, 164 So.2d 785, 791 (1964). One waives process and service, however, upon making a general appearance. See Arrow Food Distributors, Inc. v. Love, 361 So.2d 324 (Miss.1978), cert. denied, 439 U.S. 1073, 99 S.Ct. 845, 59 L.Ed.2d 39 (1979); Sandifer v. Sandifer, 237 Miss. 464, 115 So.2d 46 (1959). Further, if this Honorable Court finds that Appellee has entered his general appearance through his insurance company, then Appellee was properly served through his insurance carrier, UAIC on February 10, 2014 and Appellants have evidenced good cause why Appellee was not served prior to the date of February 10, UAIC sought to enter evidence that the statute of limitations had run prior to the service of the complaint on them as legal representatives of Appellee. However, UAIC sought to defraud the court with their calculations of the date. Mississippi law overwhelmingly states that the statute of limitations is tolled once the complaint is filed and begins running again after the one hundred and twenty (120) days, unless good cause can be shown why service wasn t effectuated in that time. Rule 4(h) provides that 13

14 a complaint will be dismissed only if the plaintiff cannot show good cause for failing to serve process within 120 days. Holmes v. Coast Transit Auth., 815 So.2d 1183, 1185 (Miss.2002).; Fortenberry v. Memorial; Jenkins v. Oswald. In Watters, the Mississippi Supreme Court deemed the statute of limitations to be interrupted or the running of the limitation clock to have stopped, during the 120-day period. In this court's opinion, the import of the Watters opinion is that at the expiration of 120 days, the clock is restarted (but not reset), giving the plaintiffs the same amount of limitations time to file suit from that date that they had when they first filed the complaint. In other words, the 120 days is not counted against the limitations period. See Evans v. Oberon Holding Corp., No. 97-CA COA, 1998 WL , at *3 (Miss.Ct. App., August 18, 1998) (concluding that even if amended complaint related back to original complaint which was filed two days before expiration of statute of limitations, plaintiff's claim was nonetheless time-barred based on her failure to serve defendant within two days of expiration of tolling period); Ortega v. Pajaro Valley Unified School Dist., 64 Cal.App.4th 1023, 1047, 75 Cal.Rptr.2d 777, 792 (1998) ("Tolling refers to suspending or stopping the running of the statute of limitations. It is analogous to a clock stopping, then restarting."); Rothschild v. NME Hospitals, Inc., 707 So.2d 952, 953 (Fla.Dist.Ct. App.1998) ("Since a tolling provision interrupts the running of the statutory limitations period, the statutory time is not counted against the claimant during the ninety-day period. In essence, the clock stops until the tolling period expires and then begins to run again."); cf. Sullivan v. Trustmark Nat'l Bank, 653 So.2d 930, 931 (Miss.1995) (discussing construction of Miss. Code Ann and stating that "[t]he period of time that the defendant's whereabouts are unknown is deducted from the 14

15 period of the statute which would otherwise have run, in effect adding time to the statute of limitations. However, the statute of limitations is not tolled where the plaintiff knew or should have known of the defendant's whereabouts."). In essence, since Appellants have been and are unable to locate the whereabouts of Appellee, the statute of limitations has not run. There is overwhelming evidence of good cause well documented in the trial court record showing that good cause existed and presently exist for why Appellants were unable to serve Appellee. Moreover, the fact that Appellee s own insurance company can t locate him is more than prodigious evidence of good cause. IV. CONCLUSION It is been well established that Appellee has not been found and either, does not want to be found and is evading service or is a wanderer and/or illegal immigrant. Appellants have diligently searched, investigated and attempted to serve Appellee, thereby satisfying the requirements of good cause. The numerous steps throughout the duration of this litigation amounts to good cause by Appellants. Appellants provided this evidence to the trial court and diligently requested extensions to further their attempt at serving Appellee. Pursuant to Mississippi law and jurisprudence, a request for extension is not required by statute, but evidences diligence on the part of counsel to show an attempt at service. Appellants filed four (4) separate requests for extensions and notified the Judge s office by phone each time a request was made and the reasons for the request. The trial court abused its discretion in denying Appellants third (3 rd ) motion for 15

16 extension and also, for failing to rule on Appellants fourth (4 th ) motion for extension filed with the trial court. Moreover, UAIC lacks standing to have this action dismissed. The trial court abused its discretion in granting UAIC s motion. UAIC has continuously stated that they are not the counsel for Appellee in sworn testimony and pleadings before the trial court. However, they seek to enter into court and act on behalf of the Appellee. If this is acceptable, then it means that in any court in Mississippi, any attorney can enter into court and have litigation dismissed on behalf of a Defendant that they don t represent. Mississippi law has ruled against such activity in Rains v. Gardner that this type of activity is unacceptable. {Where counsel was representing another defendant and motioned for the court to dismiss on behalf of an absent defendant, the court rejected the argument of counsel.} Further, Mississippi courts have upheld that a delay is acceptable when reasonable diligence is exercised in trying to locate a Defendant. In more than one case, lengthy periods of time have passed prior to the Defendant being served. Some in excess of three (3) to five (5) years. Appellants were reasonably diligent in their search for Appellee at all times. For all of the foregoing reasons, the ruling of the Circuit Court of Holmes County should be reversed and UAIC s, Motion to Dismiss should be denied. In the alternative, if this Honorable Court finds that UAIC has standing to file the Motion to Dismiss, that this Honorable Court finds that they were the legal representative of Appellee and therefore, service was effective, as Appellants have shown good cause for their inability to serve Appellee with process of service. Appellants, ASHLEY DARVILLE, INDIVIDUALLY and O/B/O THE ESTATE OF CAROL DARVILLE, pray that their brief is well taken by this Honorable Court and that the order of the trial court be 16

17 reversed and all damages be assessed to Appellee, including court costs and attorney s fees. Respectfully Submitted, BY: /s/: Daniel E. Morris DANIEL E. MORRIS, MSB# LINDSEY SCOTT, LAB#25868 Attorney for Appellants OF COUNSEL: DANIEL E. MORRIS LAW FIRM, PLLC. P.O. Box Baton Rouge, LA P: F: Web: danielmorris@demlawfirm.com SCOTT & ASSOCIATES 632 St. Ferdinand Street Baton Rouge, LA P: (225) F: (225) CERTIFICATE OF SERVICE I hereby certify that on this day I electronically filed the foregoing with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Walker R. Gibson, Esq. Bradley S. Kelly, Esq. COPELAND, COOK, TAYLOR, & BUSH, P.A Highland Colony Parkway, Suite 100 P.O. Box 6020 Ridgeland, MS P: (601) F: (601) Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: 17

18 Honorable Jannie M. Lewis P.O. Box 149 Lexington, MS Circuit Court Judge Holmes County This 13 th day of April, Respectfully Submitted, BY: /s/: Daniel E. Morris DANIEL E. MORRIS, MSB# LINDSEY SCOTT, LAB#25868 Attorney for Appellants OF COUNSEL: DANIEL E. MORRIS LAW FIRM, PLLC. P.O. Box Baton Rouge, LA P: F: Web: SCOTT & ASSOCIATES 632 St. Ferdinand Street Baton Rouge, LA P: (225) F: (225)