Schustz v. Buccaneer, Inc.

850 So. 2d 209, 2003 WL 21650142
CourtCourt of Appeals of Mississippi
DecidedJuly 15, 2003
Docket2001-CA-00592-COA
StatusPublished
Cited by20 cases

This text of 850 So. 2d 209 (Schustz v. Buccaneer, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schustz v. Buccaneer, Inc., 850 So. 2d 209, 2003 WL 21650142 (Mich. Ct. App. 2003).

Opinion

850 So.2d 209 (2003)

Karen M. SCHUSTZ, Tanya Ann Schustz, Cynthia Marie Schustz and Lisa M. Gros, Appellants,
v.
BUCCANEER, INC. and Norbert W. Kohnke, II, Appellees.

No. 2001-CA-00592-COA.

Court of Appeals of Mississippi.

July 15, 2003.

*210 John F. Ketcherside, Bay St. Louis, Patricia Broussard Judice, attorneys for appellant.

Donald Rafferty, Gulfport, Patrick H. Zachary, Hattiesburg, attorneys for appellee.

EN BANC.

ON MOTION FOR REHEARING

McMILLIN, C.J., for the court.

¶ 1. The motion for rehearing is denied and the original opinion is withdrawn and this opinion is substituted therefor. This case originated as a wrongful death action arising out of the drowning death of Lennie Schustz while a guest at the Paddle Wheel Motel in Hancock County. At the time of Schustz's death in December 1995, *211 the motel was owned by a Mississippi corporation named Buccaneer, Inc. (hereafter "Buccaneer"). The action was brought initially against Buccaneer. Later, an individual named Norbert W. Kohnke, who was alleged to be a successor in interest to Buccaneer insofar as the motel property was concerned, was added as a defendant. The matter now before this Court involves the limited question of whether the trial court erred in dismissing Buccaneer as a defendant pursuant to Mississippi Rule of Civil Procedure 4(h), which permits dismissal of a defendant if process is not completed within 120 days of filing of the complaint and the plaintiffs are unable to demonstrate good cause for the failure to accomplish service. Though this ruling did not resolve the case as to all parties, the trial court certified its ruling as to Buccaneer as a final judgment under Mississippi Rule of Civil Procedure 54(b), and this appeal ensued.

¶ 2. The appellants now before this Court are the statutorily-designated wrongful death beneficiaries of Schustz. For purposes of simplicity and clarity, these parties will be referred to as "the Beneficiaries." The Beneficiaries assert that the circuit court erred in dismissing Buccaneer for two alternative reasons, either of which they contend is sufficient to demonstrate the court's error. First, they contend that the corporation was properly served within 120 days of the filing of the complaint. Alternatively, they contend that any defects in the method or timeliness of the service of process were waived when Buccaneer, through counsel, entered a general appearance in the suit.

¶ 3. Finding merit in the second assertion, we reverse and remand.

I.

Facts

¶ 4. The critical facts on which this appeal turns involve procedural matters unaffected by any potential disputes concerning the underlying facts of the Beneficiaries' claims. These pivotal facts relating to procedure appear in the record and are not in dispute. As a result, the disputed issues on appeal strictly involve questions of law and we review issues of law decided by the trial court on a de novo basis. Bailey v. Al-Mefty, 807 So.2d 1203, 1205(¶ 8) (Miss.2001).

¶ 5. This suit was originally filed on April 21, 1998, naming Buccaneer Inc. as the sole defendant. The complaint asserted that Buccaneer was a Mississippi corporation and that its registered agent for service of process was Lucien Gex, whose office was at 700 Highway 90, Waveland, Mississippi. A summons was issued for Buccaneer to be served on Gex. The return on the summons indicates that the summons and complaint were served, not on Gex personally, but on another individual named Ronnie Artigues, who was apparently physically present in Gex's office when the process server arrived. Counsel for the Beneficiaries further certified in the court record that he had mailed a copy of the summons and complaint to Gex "pursuant to Rule 4(d)(1)(B) of the Mississippi Rules of Civil Procedure." Copies of records from the Mississippi Secretary of State's Office filed in the record of this cause indicate, however, that Gex had formally resigned as agent for process for Buccaneer prior to these attempts to serve him in his capacity as agent for the corporation.

¶ 6. On June 22, 1998, the Beneficiaries filed an amended complaint in which it was alleged that Norbert W. Kohnke had bought Buccaneer and that the corporation had been administratively dissolved on November 17, 1997. The complaint asserted that "such purchase carries with it not *212 only the assets, but also the liabilities of the corporation ...." and that Kohnke, as the successor in interest to the dissolved corporation, was personally liable on the claim.

¶ 7. Kohnke was served with a summons and filed an answer and counterclaim on July 31, 1998. The record does not reveal any further effort to serve Buccaneer; however, on April 9, 1999, Attorney Patrick H. Zachary filed an entry of appearance in the cause, the text of which we quote in full:

Comes now the undersigned, Patrick H. Zachary, of the firm of Zachary & Leggett, PLLC, and hereby enters his appearance as counsel for Buccaneer, Inc.

¶ 8. It is perhaps helpful to observe at this point that, though Buccaneer had been administratively dissolved (apparently for failing to file the required annual reports with the Secretary of State) and that such administrative dissolution had occurred prior to the filing of this suit, the corporation was nevertheless amenable to suit under authority of Section 79-4-14.05 of the Mississippi Code. Miss.Code Ann. § 79-4-14.05(b)(5) (Rev.2001). The importance of obtaining jurisdiction over this corporation, though administratively dissolved and apparently bereft of any assets by virtue of its earlier conveyance to Kohnke, appears to arise out of the possible existence of liability insurance that may have been in force on the day that Lennie Schustz drowned.

¶ 9. The next activity in the record involving Buccaneer did not occur until May 30, 2000, when counsel for the Beneficiaries filed a motion for default judgment alleging that Zachary had made a general appearance on behalf of Buccaneer and that Buccaneer's subsequent failure to answer or otherwise defend the suit for a period in excess of twelve months constituted an act of default. Apparently there was no subsequent effort by the Beneficiaries to bring this motion on for hearing. On January 3, 2001—over twenty months after counsel appeared in this action on its behalf—Buccaneer finally filed a motion styled "Defendant's Motion to Dismiss or in the Alternative for Summary Judgment." In that motion, Buccaneer asserted that it had not been properly served within 120 days of the filing of the complaint against it and that no good cause existed for this failure to timely serve the corporation. For that reason, Buccaneer urged that the complaint should be dismissed under Mississippi Rule of Civil Procedure 4(h).

¶ 10. The Beneficiaries' response to this motion focused on the proposition that Zachary's appearance was a general appearance on behalf of Buccaneer, which waived any defects in service on the corporation.

¶ 11. The trial court, in a brief order, found that dismissal of Buccaneer without prejudice under Rule 4(h) was appropriate.

II.

Discussion

¶ 12. We may summarily resolve the contention that Buccaneer was properly served within 120 days of the filing of the complaint.

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Bluebook (online)
850 So. 2d 209, 2003 WL 21650142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schustz-v-buccaneer-inc-missctapp-2003.