Young v. Hooker

753 So. 2d 456, 1999 WL 1034825
CourtCourt of Appeals of Mississippi
DecidedNovember 16, 1999
Docket1998-CA-01270-COA, 1998-CA-01272-COA
StatusPublished
Cited by6 cases

This text of 753 So. 2d 456 (Young v. Hooker) 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
Young v. Hooker, 753 So. 2d 456, 1999 WL 1034825 (Mich. Ct. App. 1999).

Opinion

753 So.2d 456 (1999)

R. James YOUNG, Interim Successor Trustee of Clinton Gilliam Rotenberry Trust, Appellant,
v.
William Lamar HOOKER, Appellee.

Nos. 1998-CA-01270-COA, 1998-CA-01272-COA.

Court of Appeals of Mississippi.

November 16, 1999.

*457 Janet McMurtray, Alan W. Perry, E. Stephen Williams, Michael D. Simmons, Jackson, Attorneys for Appellant.

James Lawton Robertson, Jackson, Attorney for Appellee.

BEFORE McMILLIN, C.J., MOORE, AND THOMAS, JJ.

*458 MOORE, J., for the Court:

¶ 1. The Chancery Court of Quitman County dismissed two civil actions arising from a 1982 judgment against Appellee William Lamar Hooker. The chancellor dismissed Appellant R. James Young's complaint to renew a judgment for Young's failure to serve process within 120 days from the filing of the complaint and extinguished the judgment sought to be renewed for Young's failure to renew the judgment within the statute of limitations. Young appeals the judgment of the Quit-man County Chancery Court, citing one error as follows

WHETHER GOOD CAUSE EXISTED FOR THE TRUSTEE'S INABILITY TO SERVE PROCESS ON THE APPELLEE WITHIN 120 DAYS IN AN ACTION TO RENEW A JUDGMENT

We affirm.

STATEMENT OF FACTS

¶ 2. March 21, 1989, B.E. Grantham, Jr., former trustee for the Clinton Gilliam Rotenberry Trust ("Gilliam Trust") and the Clinton Grice Rotenberry Residual Trust ("Grice Residual Trust") obtained a default judgment against Appellee William Lamar Hooker for $743,170.71 plus interest. The judgment, entered in Quitman County Chancery Court Case No. 11,175, was a renewal of a 1982 judgment, bearing the same case number, against Hooker in the Gilliam Trust's and Grice Residual Trust's favor.

¶ 3. March 6, 1996, Appellant R. James Young, the Gilliam Trust's successor trustee, filed a complaint to renew the 1989 judgment against Hooker, under Quitman County Chancery Court case number 96-38. The chancery clerk issued process to Hooker on the same date that the complaint was filed; however, Hooker was not served with process until May 8, 1998, more than two years later. In November 1997, Young filed a motion to examine judgment debtor. November 18, 1997, the chancery court signed an order for examination of judgment debtor which Young attempted to serve upon Hooker at 1350 Linden Place in Jackson, Mississippi. Young also attempted to serve Hooker at 310 Natchez Street in Kosciusko, Mississippi.[1] Having failed to serve Hooker at either of these addresses, Young gave up, no longer wishing to expend trust resources to find Hooker. Young did not request any extensions of time from the chancery court within which to serve process.

¶ 4. Upon learning that Hooker would be having lunch with Clint Rotenberry, Jr., one of the Gilliam Trust's beneficiaries and the trustee of the Guice Residual Trust, Young had Hooker served with the order to examine judgment debtor on February 9, 1998. Hooker moved to set aside this order and on May 8, 1998 the chancery court held a hearing on Hooker's motion. Young served Hooker with the summons and complaint to renew the judgment at the May 8 hearing. At the hearing, the trial judge heard testimony upon which he later based his decision to dismiss the suit to renew the 1989 judgment and his decision to extinguish the 1989 judgment itself.

¶ 5. Clint Rotenberry, Jr., testified that neither the trustee nor the trustee's lawyer ever mentioned their inability to find Hooker or requested his help in finding Hooker. He knew that Hooker spent many nights at Julie Harvey's residence, from 1996 until her death on February 5, 1997, that Hooker often answered Harvey's telephone, and he had seen Hooker at Harvey's house.[2] He had two telephone *459 numbers for Hooker, one at Harvey's home and one at Gayle Steele's home in Kosciusko, even though Hooker did not have a listed telephone number. Rotenberry asserted that he could always reach Hooker by telephone within a three-day period and that Hooker always returned calls when Rotenberry left messages for him.

¶ 6. In response to the court's inquiry, Rotenberry testified: "I would have to say that it's my belief that it was common knowledge to everybody where Lamar was."[3] He recalled that, when he told Hooker on February 8, 1998 that counsel for the Gilliam Trust was experiencing difficulty in serving him with process, Hooker told him to inform the attorney that he would be at Hal & Mal's restaurant in Jackson between 11:30 a.m. and 12:30 p.m. the following day. Rotenberry noted that Hooker did not dodge process on that day.

¶ 7. Scottye Rotenberry Hooker testified that there had been no time since her divorce from Hooker in 1981 that she had not known where he could be found. She emphasized that she would have aided Young or the attorneys in every way to find Hooker because she wanted to keep the judgment. She provided the Gilliam Trust's attorney with the Linden Place address. Ms. Hooker testified that she was never informed that Young could not find Hooker at Linden Place, and that she received no further requests regarding Hooker's whereabouts.

¶ 8. Ms. Hooker explained that Hooker told her, in February of 1997, that the judgment had not been renewed. She wanted the judgment renewed even though she had been told that the judgment "wasn't worth anything." She testified that she confirmed the Kosciusko address at Young's request shortly before the May 8, 1998 hearing, and she observed that the process server obviously identified the wrong house in Kosciusko. In response to Hooker's assertion that she knew his whereabouts ever since the judgment was obtained against him, Ms. Hooker explained that she could learn his location from their children and that she knew his habits. She stated: "I have to admit I've always known where you were, or I could have found you in a matter of days." Ms. Hooker testified that she knew that Hooker had moved in with Julie Harvey fairly soon after he moved in.

¶ 9. June 1, 1998, in Case Number 96-38, Hooker filed a motion to dismiss Young's complaint to renew the 1989 judgment upon the ground that process was not served within 120 days of the filing of the complaint, as required by M.R.C.P. 4(h). Hooker also moved the chancery court, in Case Number 11,175, to vacate and set aside the 1989 judgment upon the ground that the judgment was extinguished by operation of Miss.Code Ann. § § 15-1-3 and 15-1-43 (Rev.1995).

¶ 10. On July 20, 1998, pursuant to his written opinion dated July 9, 1998, the chancellor entered his order for dismissal in both cases 96-38 and 11,175. The chancellor decreed that the 1996 complaint should be dismissed for Young's failure to serve process within the 120-day period. The chancellor ruled that the evidence revealed that Hooker's whereabouts were either known or easily ascertained; therefore, there was no good cause for the delay in serving Hooker with the complaint in the suit to renew. The chancellor further decreed that the rights held by the trustee under the 1989 judgment, and any remedies to which the trustee was entitled under the 1989 judgment, were "finally defeated, extinguished, and barred" by operation of Miss.Code Ann. § § 15-1-3 and 15-1-43 (Rev.1995).

*460 ¶ 11. Young timely filed and perfected his appeal of the July 20 order and the two cases have been consolidated for purposes of appeal by order of the supreme court entered on September 18, 1998.

LAW AND ANALYSIS

DID THE CHANCELLOR ERR IN FINDING NO GOOD CAUSE FOR YOUNG'S FAILURE TO SERVE PROCESS WITHIN 120 DAYS OF FILING THE COMPLAINT?

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Bluebook (online)
753 So. 2d 456, 1999 WL 1034825, Counsel Stack Legal Research, https://law.counselstack.com/opinion/young-v-hooker-missctapp-1999.