Monty Fletcher v. Limeco Corporation ( 2007 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2007-CA-01247-SCT
MONTY FLETCHER
v.
LIMECO CORPORATION
DATE OF JUDGMENT: 05/02/2007
TRIAL JUDGE: HON. SHARION R. AYCOCK
COURT FROM WHICH APPEALED: LEE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: MICHAEL N. WATTS
R. BRADLEY BEST
JULIE MURPHY BURNSTEIN
PETER C. SALES
ATTORNEYS FOR APPELLEE: L. F. SAMS, JR.
MARGARET SAMS GRATZ
NATURE OF THE CASE: CIVIL - CONTRACT
DISPOSITION: AFFIRMED - 12/11/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
CONSOLIDATED WITH
NO. 2007-CA-01249-SCT
R. W. WHITAKER
v.
LIMECO CORPORATION AND WILLIAM KIDD
DATE OF JUDGMENT: 05/02/2007
TRIAL JUDGE: HON. SHARION R. AYCOCK
COURT FROM WHICH APPEALED: LEE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: MICHAEL N. WATTS
R. BRADLEY BEST
JULIE MURPHY BURNSTEIN
PETER C. SALES
ATTORNEYS FOR APPELLEES: L. F. SAMS, JR.
MARGARET SAMS GRATZ
NATURE OF THE CASE: CIVIL - CONTRACT
DISPOSITION: AFFIRMED - 12/11/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
CONSOLIDATED WITH
NO. 2007-CA-01262-SCT
T-REX 2000, INC.
v.
BRETT KIDD AND JAMIE KIDD
DATE OF JUDGMENT: 04/27/2007
TRIAL JUDGE: HON. PAUL S. FUNDERBURK
COURT FROM WHICH APPEALED: LEE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: MICHAEL N. WATTS
R. BRADLEY BEST
JULIE MURPHY BURNSTEIN
PETER C. SALES
ATTORNEYS FOR APPELLEES: L. F. SAMS, JR.
MARGARET SAMS GRATZ
NATURE OF THE CASE: CIVIL - CONTRACT
DISPOSITION: AFFIRMED - 12/11/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
CARLSON, JUSTICE, FOR THE COURT:
¶1. The plaintiffs in three cases, T-REX 2000, Inc., R.W. Whitaker, and Monty Fletcher
(hereinafter “Plaintiffs”), sued the defendants, William Kidd, Brett Kidd, Jamie Kidd, and
Limeco Corporation (hereinafter “Defendants”), in Lee County Circuit Court for alleged
debts owed pursuant to a stock-purchase agreement and promissory notes. In due course, the
Plaintiffs’ actions were dismissed due to insufficiency of process and insufficiency of service
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of process. See Miss. R. Civ. P. 12(b)(4)-(5). The Plaintiffs appealed to us. Finding no error,
we affirm.
FACTS AND PROCEEDINGS IN THE TRIAL COURT
¶2. The three consolidated cases before this Court stem from contract negotiations that
began in 2001 for the purchase of the T-Rex 2000 hockey team in Tupelo. This appeal,
however, does not concern the alleged breach of contract, but the procedural history of the
three suits. These three complaints were filed on December 11, 2003, in the Circuit Court of
Lee County.
¶3. First, Plaintiff T-REX 2000, Inc., filed suit against Brett Kidd and Jamie Kidd for
alleged breach of a stock-purchase agreement (hereinafter the “T-REX case”). The Plaintiffs
in T-REX served William Kidd with the complaint and two summonses which had been
issued for service on Brett Kidd and Jamie Kidd. 1 The second lawsuit was filed by R.W.
Whitaker against Limeco Corporation and William Kidd (hereinafter the “Whitaker case”)
based on the allegation that Limeco and Kidd had failed to pay a $375,000 promissory note.
The third lawsuit was filed by Monty Fletcher against Limeco (hereinafter the “Fletcher
case”) alleging that Limeco had breached a second $375,000 promissory note. The Whitaker
and Fletcher complaints were served on January 23, 2004, via hand-delivery on William
Kidd as managing director of Limeco at the residence shared by William and Brett Kidd. All
three summonses issued for service on the Defendants and served on William Kidd read:
“You are not required to file an answer or other pleading but you may do so if you desire.”
1
Brett Kidd and Jamie Kidd are the son and daughter, respectively, of William Kidd.
3
This language erroneously complied with requirements for a Rule 81 summons, not a
summons consistent with the requirement of Rule 4. See Miss. R. Civ. P. 81 and 4.
¶4. William Kidd, pro se, and on behalf of himself, Limeco, Jamie Kidd and Brett Kidd
drafted, hand-delivered and mailed to the Plaintiffs’ former counsel responses to the three
complaints. These responses were served on the Plaintiffs’ counsel on February 20, 2004;
yet Mr. Kidd–in accordance with the plain language of the summons that the filing of “an
answer or other pleading” was not required–did not file the answers with the circuit clerk’s
office. None of the unfiled responses included the defenses of insufficiency of process or
insufficiency of service of process pursuant to Mississippi Rule of Civil Procedure 12(b)(4)-
(5).
¶5. Upon the entry of the clerk’s default pursuant to Mississippi Rule of Civil Procedure
55(a), the Plaintiffs in all three cases moved for the entry of a default judgment pursuant to
Mississippi Rule of Civil Procedure 55(b). Former counsel for the Plaintiffs falsely testified
via affidavit attached to the motion for default judgment that no answer had been filed or
served. The Kidds did not receive the requisite notice of the motion for default judgment;
however, default judgments were later entered in each of the three cases. The Kidds had no
knowledge of these default judgments until the new counsel retained by T-REX, Whitaker,
and Fletcher filed Notice to Enroll Foreign Judgments in the Franklin County, Alabama,
Circuit Court, seeking to enforce the Lee County default judgments. The Kidds and Limeco
filed Motions to Set Aside the Default Judgments and for other relief on September 20, 2006,
alleging that the default judgments were improper because they had served responsive
pleadings on the former counsel for Plaintiffs. The Plaintiffs conceded that the default
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judgments had been improperly entered without notice to the Kidds or Limeco, and the
parties submitted agreed orders setting aside the default judgments, which the circuit judge
executed and caused to be filed in each of the cases. Furthermore, each order provided that
that the “Defendants shall have thirty days from [the date of the order] in which to file a
responsive pleading.”
¶6. The defendants then filed their answers to the complaints in the T-REX, Whitaker, and
Fletcher cases on December 11, 2006. These answers raised the defenses of insufficiency
of process and insufficiency of service of process pursuant to Mississippi Rule of Civil
Procedure 12(b)(4)-(5). On December 15, 2006, the Kidds and Limeco filed Motions to
Dismiss for Lack of Service of Process as to each cause of action. The Plaintiffs opposed
these motions in each of the three cases. Following a March 20, 2007, hearing, the Lee
County Circuit Court, Judge Sharion R. Aycock presiding, dismissed the Whitaker and
Fletcher cases without prejudice, based on the findings that process and service of process
were insufficient and that proper service had not been had within 120 days as required by
Mississippi Rule of Civil Procedure 4(h). The Lee County Circuit Court, Judge Paul
Funderburk presiding, following an April 24, 2007, hearing, dismissed the T-REX case
without prejudice based on the same findings. The Plaintiffs filed timely motions to alter or
amend the judgments in each of the cases, all of which were denied by the respective trial
judges. The Plaintiffs timely appealed to us in each of these cases, and we have now
consolidated the cases on appeal.
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DISCUSSION
¶7. This Court reviews de novo a trial court’s grant of a motion to dismiss. Vicksburg
Partners, L.P. v. Stephens, 911 So. 2d 507, 513 (Miss. 2005) (citations omitted); Spencer
v. State, 880 So. 2d 1044, 1045 (Miss. 2004). A trial court can acquire jurisdiction over an
individual through service of process. Mansour v. Charmax Indus., 680 So. 2d 852, 854
(Miss. 1996) (citing Aldridge v. First Nat’l Bank, 165 Miss. 1, 14, 144 So. 469, 470
(1932)). In addition, a trial court can acquire jurisdiction over the person through his
appearance. Id. (citing State ex rel Moak v. Moore, 373 So. 2d 1011, 1012 (Miss. 1979)).
Without either occurrence, the trial court does not have jurisdiction over the person. Id.
(citing Moore, 373 So. 2d at 1012). This Court has stated, “Whether the circuit court had
proper jurisdiction to hear a particular matter is a question of law, and this Court must
therefore apply a de novo standard of review to this issue.” Vicksburg Partners, 911 So. 2d
at 513 (citations omitted).
¶8. Process and service of process are governed by Mississippi Rule of Civil Procedure
4. Mississippi Rule of Civil Procedure 12 governs the manner in which defenses must be
raised. A court can consider the affirmative defenses of insufficiency of process and
insufficiency of service of process only if they are properly raised and have not been waived.
Mississippi Rule of Civil Procedure 12(h)(1) states, in pertinent part:
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.
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¶9. On appeal the Plaintiffs request that the orders dismissing the T-REX, Whitaker, and
Fletcher complaints be reversed and the cases remanded for trial. The Plaintiffs raise the
following two issues for this Court’s review:
(1) Did the trial court err in holding that the process issued to the Defendant
Limeco Corporation did not substantially comply with Mississippi Rule of
Civil Procedure 4(b) where the summons contained the essential elements of
a summons established by Rule 4?
(2) Did the trial court err in holding that the Defendants Brett Kidd, Jamie
Kidd, William Kidd, and Limeco Corporation did not waive their defenses of
insufficient process and insufficient service of process where the Defendants
served answers to the complaints and failed to assert any affirmative defenses
based on insufficiency of process or insufficiency of service of process?
¶10. For the sake of today’s discussion, we restate these issues.
I. WHETHER PROCESS AND SERVICE OF PROCESS
SUBSTANTIALLY COMPLIED WITH MISSISSIPPI RULE OF
CIVIL PROCEDURE 4(b).
¶11. Mississippi Rule of Civil Procedure 4(b) states:
The summons shall be dated and signed by the clerk, be under the seal of the
court, contain the name of the court and the names of the parties, be directed
to the defendant, state the name and address of the plaintiff's attorney, if any,
otherwise the plaintiff's address, and the time within which these rules require
the defendant to appear and defend, and shall notify him that in case of his
failure to do so judgment by default will be rendered against him for the relief
demanded in the complaint. Where there are multiple plaintiffs or multiple
defendants, or both, the summons, except where service is made by
publication, may contain, in lieu of the names of all parties, the name of the
first party on each side and the name and address of the party to be served.
Summons served by process server shall substantially conform to Form 1A.
Summons served by sheriff shall substantially conform to Form 1AA.
(Emphasis added).
¶12. The summonses issued in the three cases did not substantially conform with either
Form 1A or Form 1AA, but instead included language consistent with a Rule 81 summons.
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See Summons Forms 1D, 1DD. Consequently, Defendant William Kidd was instructed that
a failure to appear and defend may result in default judgment; however he was not instructed
to “file the original . . . response with the Clerk of this Court within a reasonable time
afterward.” Instead William Kidd received a summons that reads as follows: “You are not
required to file an answer or other pleading but you may do so if you desire.” William Kidd
complied with this summons when he served the Plaintiffs’ attorney with a response, but did
not file it. We unquestionably find that a summons does not substantially comply with the
requirements of Mississippi Rule of Civil Procedure 4 when, as here, the Rule 4 summons
includes language contrary to the procedural requirements. Because the summons was
deficient on its face, we find that the trial court did not err in holding that the process issued
to the Defendants did not comply with Mississippi Rule of Civil Procedure 4(b), and that
dismissal without prejudice was required due to failure to serve valid process upon the
defendants within 120 twenty days of the filing of the complaint pursuant to Mississippi Rule
of Civil Procedure 4(h). See Johnson v. Thomas Ex Rel. Polatsidis, 982 So. 2d 405, 411
(Miss. 2008). We thus find no merit in this assignment of error.
¶13. Plaintiffs state that service of process is sufficient as to Limeco in the Whitaker and
Fletcher cases, yet cite no facts or authority in support of this premise. The Defendants do
not contest the service had in the Fletcher case on William Kidd because he was served in
his official capacity as managing director of Limeco. See Miss. R. Civ. P. 4(d)(4). To the
contrary, Defendants contend that in the Whitaker case, service of process was insufficient
where William Kidd was served as director of Limeco, but was not served in his individual
capacity despite having been named as an individual defendant. The official Comment to
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Mississippi Rule of Civil Procedure 4 states, “After an action is commenced, the clerk is
required to issue a separate summons for each defendant except in the case of summons by
publication.” Since Plaintiffs do not argue sufficiency of service of process as to William
Kidd in the Whitaker case, it is presumed that Plaintiffs concede this issue. Moreover,
Plaintiffs do not contend that service of process was sufficient as to Jamie and Brett Kidd in
the T-REX case wherein William Kidd was served on their behalf. As to Jamie Kidd, an out-
of-state resident, service on her father, William Kidd, at William’s residence was insufficient.
William Kidd’s residence was not the “defendant’s usual place of abode” as contemplated
by Mississippi Rule of Civil Procedure 4(d)(1)(B). Although Brett Kidd shared a residence
with his father, service of process on Brett was insufficient where Plaintiffs failed to follow
up delivery of the summons to William by mailing a copy of the summons and complaint to
Brett. Mississippi Rule of Civil Procedure 4(d)(1) (Rev. 2008) dictates:
The summons and complaint shall be served together. Service by sheriff or
process server shall be made as follows:
(1) Upon an individual other than an unmarried infant or a mentally
incompetent person,
(A) 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
service of process; or (B) if service under subparagraph (1)(A) of this
subdivision cannot be made with reasonable diligence, by leaving a copy of the
summons and complaint at the defendant's usual place of abode with the
defendant's spouse or some other person of the defendant's family above the
age of sixteen years who is willing to receive service, and by thereafter mailing
a copy of the summons and complaint (by first class mail, postage prepaid) to
the person to be served at the place where a copy of the summons and of the
complaint were left. Service of a summons in this manner is deemed complete
on the 10th day after such mailing.
9
See also Williams v. Kilgore, 618 So. 2d 51, 56 (Miss. 1992) (finding insufficient service of
process where defendant’s summons was left at his residence with his spouse, but never
mailed to the residence where process was delivered). Having found that the trial court did
not err in finding insufficiency of process and insufficiency of service of process, we now
proceed to our discussion as to whether Defendants waived these defenses.
II. WHETHER DEFENDANTS’ 2004 RESPONSE TO ORIGINAL
COMPLAINT SERVED AS A WAIVER TO THE DEFENSES OF
INSUFFICIENCY OF PROCESS AND INSUFFICIENCY OF
SERVICE OF PROCESS.
¶14. The Plaintiffs argue alternatively that, should this Court find process deficient, the
Defendants have waived the defenses of insufficiency of process and insufficiency of service
of process. The issue before us is essentially whether the document William Kidd drafted
and served on Plaintiffs’ former counsel was a valid answer despite having not been filed
with the trial court. Pursuant to Mississippi Rule of Civil Procedure 5(d), “All papers after
the complaint required to be served upon a party shall be filed with the court either before
service or within a reasonable time thereafter. . . .” Without question, a valid answer would
have effectively served to bar the Defendants from asserting insufficiency of process and
insufficiency of service of process defenses. See Miss. R. Civ. P. 12(h)(1).
¶15. In the three consolidated cases, William Kidd responded pro se to Plaintiff’s counsel
on behalf of himself, Limeco, and Brett and Jamie. His response did not assert the defenses
of insufficiency of process or insufficiency of service of process pursuant to Mississippi Rule
of Civil Procedure 12(b)(4)-(5), nor did he amend his response within the requisite thirty
days as required by Mississippi Rule of Civil Procedure 15(a) to include these defenses. The
10
Plaintiffs contend that this response constituted a valid answer and served as a bar for raising
12b(4)-(5) defenses. Furthermore, the Plaintiffs argue that the agreed-upon order to set aside
the default judgment did not grant the Kidds an opportunity pursuant to Mississippi Rule of
Civil Procedure 15(a) to amend their initial answer to include these defenses. This Court has
never addressed the issue of whether the failure to file a document renders such document
invalid; however, this issue has been addressed at the federal level.
¶16. The Defendants cite two cases in support of their contention that the first response
William Kidd drafted and served to opposing counsel was invalid. In Saulsberry v. Atlantic
Richfield Co., 673 F. Supp. 811, 814 (N.D. Miss. 1987), the court held that an attorney’s
response to the defendant’s request for admission was invalid because it was not properly
filed with the court pursuant to Federal Rule of Civil Procedure 5(d), which – just like its
Mississippi counterpart – requires all documents following the complaint to be filed with the
court. Federal District Court Uniform Local Rule 6(e) makes an exception only for
depositions, but all other documents must be filed with the court. Id. The court held that the
statements must be deemed admitted because the response was ineffective. Id. This was also
the interpretation by the Southern District court in McLaurin v. Werner, 909 F. Supp. 447(S.D. Miss. 1995), in which McLaurin's unfiled response mailed to the opposing party’s
attorney was held to be ineffective. The federal district courts’ interpretation of Federal Rule
of Civil Procedure 5(d) is highly persuasive, given that the Mississippi Rules of Civil
Procedure, with few exceptions, were developed to comport with the Federal Rules of Civil
Procedure.
11
¶17. The dissent distinguishes these federal cases based on the fact that those cases
involved pleadings not filed due to the attorneys’ error or willful disregard for procedure.
The reason for not filing, however, should not be determinative of whether a pleading is valid
or invalid. The fact that a pleading is not filed should mean–as a matter of blackletter
law–that the pleading is per se invalid. While this Court has given a very broad
interpretation of a what constitutes an answer pursuant to Mississippi Rule of Civil Procedure
8(b), it has never held that an answer that has not been filed was valid. In Wheat v. Eakin,
491 So. 2d 523 (Miss. 1986), Wheat, acting pro se, filed with the circuit clerk's office a
handwritten document that became the point of contention in the case – specifically whether
the document constituted an answer. Id. at 524. In Wheat, this Court held that “[w]hile the
form and language of the appellant's response are less than desirable and more frank than
customary, the appellant did state in short and plain terms his general denial of appellees'
claims.” Wheat v. Eakin, 491 So. 2d 523, 524 (Miss. 1986). Notably, the less-than-desirable
response at issue in Wheat was filed with the circuit clerk’s office.
¶18. In Harrison v. Mississippi Bar, 637 So. 2d 204 (Miss. 1994), this Court reviewed a
default judgment against an attorney in a disciplinary proceeding due to the attorney’s failure
to respond. Harrison contended that her response to the summons and complaint, in letter
form, constituted an “answer.” Id. at 215. This Court, however, dismissed that contention
based on the following: (1) it was not in the form of an answer, (2) it was not filed with the
clerk of the court, (3) and it was not filed within the requisite twenty-day period required by
Mississippi Rule of Discipline 8.3. Id. While the filing requirement relied upon in Harrison
was prescribed by Rule of Discipline 8.4 and not by Mississippi Rule of Civil Procedure
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5(d), the premise is the same. Harrison’s answer was invalid for the aforementioned reasons.
William Kidd’s response, while taking the form of an answer, was never filed with the clerk.
It was never filed because William’s deficient and ineffective process instructed him that
“[y]ou are not required to file an answer or other pleading.” In the end, the Plaintiffs simply
cannot capitalize on their own folly as to the erroneous language that instructed William
Kidd he was not required to file an answer.
¶19. The Plaintiffs argue that William Kidd’s response on February 20, 2004, constitutes
an appearance in each case. They rely on King v. Sigrest, 641 So. 2d 1158, 1162 (Miss.
1994), for the premise that under Mississippi Rule of Civil Procedure 55, even an unfiled
motion constitutes an appearance; therefore, according to the Plaintiffs, the Defendants
collectively waived their defenses following this initial appearance and the significant delay
thereafter. There is no question that default judgment in this case was improper, as both
parties have conceded this point. For the purposes of Mississippi Rule of Civil Procedure
55, a party need only make "an indicia of defense or denial of the allegations of the
complaint” to be entitled to three days’ notice of the application of default judgment. Wheat
v. Eakin, 491 So. 2d 523, 525 (Miss. 1986). William Kidd’s response may have met the
requirements of Mississippi Rule of Civil Procedure 55 to require three days’ notice of
application for default judgment, but it was not a valid answer, because it did not comport
with the filing requirement of Mississippi Rule of Civil Procedure 5(d).
¶20. The Plaintiffs further argue that an appearance coupled with delay serves as a waiver.
The delay is insignificant because the defenses were neither raised in a valid answer, nor did
the Defendants participate in the lawsuit on record until September 2006. This Court has
13
stated, “[a] defendant's failure to timely and reasonably raise and pursue the enforcement of
any affirmative defense or other affirmative matter or right which would serve to terminate
or stay the litigation, coupled with active participation in the litigation process, will
ordinarily serve as a waiver.” East Miss. State Hosp. v. Adams, 947 So. 2d 887, 891 (Miss.
2007) (citing MS Credit Ctr., Inc. v. Horton, 926 So. 2d 167, 181 (Miss. 2006)). The
Defendants, however, did not actively participate in the lawsuit, nor were they even aware
of the default judgment until the Plaintiffs sought to enforce the judgment in 2006 in an
Alabama circuit court. It is unclear from the record why the Plaintiffs delayed in seeking to
enforce the judgment for almost two years. The Defendants, after learning of the default
judgments, filed through counsel a Motion to Set Aside Default Judgment and For Other
Relief in each of the three cases. The Defendants raised, for the first time, the defenses of
insufficiency of process as to the summons served on William Kidd and insufficiency of
service of process as to Jamie and Brett Kidd. Since the first response drafted and served by
William Kidd did not constitute a valid answer, these defenses were properly raised in the
September 20, 2006, pleading – the first response filed of record by the Kidds.
¶21. Because we have found the February 2004 pro se response by William Kidd to be an
invalid answer, we find it unnecessary to address the Plaintiff’s argument that the Defendants
improperly amended the February 2004 response under Mississippi Rule of Civil Procedure
15. The first answer of record in December 2006 was filed as a result of the agreed orders
entered by the trial court setting aside the default judgments and allowing the Defendants
“thirty days from this date in which to file a responsive pleading.” There is no indication
from the agreed orders that the Defendants were waiving any defenses in exchange for the
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Plaintiffs agreeing to set aside the default judgment. Therefore, the Defendants were at
liberty to raise any and all defenses available to them. See e.g., Heard v. Remy, 937 So. 2d
939, 941-42 (Miss. 2006); Rains v Gardner, 731 So. 2d 1192, 1194-97 (Miss. 1999); Young
v. Huron Smith Oil Co., Inc., 564 So. 2d 36, 38-39 (Miss. 1990). Accordingly, this issue
is without merit.
CONCLUSION
¶22. For all of the aforementioned reasons, having found no error, the Lee County Circuit
Court’s entry of orders of dismissal without prejudice in these three cases pursuant to
Mississippi Civil Procedure 4(h) is affirmed.
¶23. AFFIRMED.
SMITH, C.J., WALLER, P.J., DICKINSON AND RANDOLPH, JJ., CONCUR.
GRAVES, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
DIAZ, P.J., AND EASLEY, J. LAMAR, J., NOT PARTICIPATING.
GRAVES, JUSTICE, DISSENTING:
¶24. Courts should strive to reach equitable results when adjudicating the disputes before
them. It is admittedly difficult to achieve an equitable result in this case, given the litigation
errors committed by both sides, as well as the passage of time since the inception of this case.
¶25. I write separately to stress the fact that the defendants are by no means blameless in
allowing this lawsuit to degenerate to its current state. William Kidd testified at a deposition
in this case and stated that, at that time, he was the managing director of a corporate entity,
that he owned several others, and that he had hired counsel on prior occasions to represent
these entities in other legal matters. At this deposition, the following line of questioning took
place:
15
Q: Mr. Kidd, how many companies do you own or are you involved with?
A: I’m not really sure. I would say more than five.
Q: That’s adequate. Have any of these entities ever been sued?
A: Yes.
Q: Did you use attorneys in those cases?
A: Yes.
Q: Why did you use attorneys in those cases?
A: I guess so that I wouldn’t have this problem.
Q: What problem is that?
A: Getting into an area that I wasn’t familiar with.
Kidd also stated at his deposition that the reason he initially chose not hire an attorney to
represent him, Limeco, or his children was because “I didn’t think it was that serious right
then.”
¶26. So Kidd chose to respond to the complaint on his own. The result was a two-page
answer, the body of which consisted of five numbered paragraphs. Each paragraph stating
only either “Agree,” “Deny,” or “Do not admit or deny.” He then stated in closing that “the
Defendant(s) jointly and severally denies [sic] validity and overall substance of Plaintiff’s
claim and ask that the Summons and Complaint be dismissed.” At his deposition, Kidd
described his thought process regarding his response to the complaint:
A: I just followed what the Complaint said. It said that I had to answer, so
I answered. That was it. So I thought doing the Answer, –
Q: So by serving –
A: – it protected my rights.
Q: – by preparing and serving the Answer on opposing counsel, you
thought you had preserved all your rights?
A: That’s right.
¶27. This Court holds pro se litigants to substantially the same standards of litigation
conduct as attorneys. Perry v. Andy, 858 So. 2d 143, 146 (Miss. 2003). In this case, Kidd
made a conscious, informed decision not to hire an attorney when he discovered that he, his
16
company, and his children were being sued. He decided that he could represent his rights and
those of his company and children on his own. It was not until he was notified of the foreign
judgment against him in Alabama that he decided that he needed to hire counsel because,
apparently, it had become “that serious.” Certainly, Kidd was savvy enough to know that
significant claims were being made against his corporate interests. Yet, the majority appears
to be creating a new standard of review for pro se litigants, unless it would also find that an
attorney who acted in the same manner as Kidd had not waived the defenses of insufficient
service and insufficient service of process.
¶28. I also write separately to note that the majority’s decision today has the effect of
punishing the plaintiffs for litigation errors committed by their counsel. Both the wording of
the summonses and the misrepresentation made to the court that the defendants had failed to
respond to the complaints were clearly mistakes made by counsel. Because of the mistakes
of attorneys, the plaintiffs have now lost the right to pursue their cause of action. While the
plaintiffs are being punished for attorney error, the defendants reap a benefit from the careless
and cavalier decision of William Kidd to proceed pro se. The result reached by the majority
is an inequitable one, and, therefore, I respectfully dissent.
DIAZ, P.J., AND EASLEY, J., JOIN THIS OPINION.
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