Douglas Michael Long, Jr. v. David J. Vitkauskas , 228 So. 3d 383 ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-CA-00527-COA
DOUGLAS MICHAEL LONG, JR. APPELLANT
v.
DAVID J. VITKAUSKAS APPELLEE
DATE OF JUDGMENT: 10/09/2014
TRIAL JUDGE: HON. ROBERT P. CHAMBERLIN
COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: MICHAEL J. MALOUF
ROBERT EUGENE JONES II
JAMES MATTHEW LENDERMAN
ATTORNEYS FOR APPELLEE: A.E. (RUSTY) HARLOW JR.
KATHI CRESTMAN WILSON
NATURE OF THE CASE: CIVIL - TORTS - OTHER THAN PERSONAL
INJURY AND PROPERTY DAMAGE
TRIAL COURT DISPOSITION: GRANTED MOTION TO DISMISS FOR
INSUFFICIENT SERVICE OF PROCESS
DISPOSITION: AFFIRMED - 10/04/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., BARNES AND ISHEE, JJ.
LEE, C.J., FOR THE COURT:
¶1. Douglas Long sued David Vitkauskas for alienation of affection. The DeSoto County
Circuit Court granted Vitkauskas’s motion to dismiss, finding insufficient service of process.
In this appeal, we must determine whether the trial court properly granted the motion to
dismiss.
PROCEDURAL HISTORY
¶2. Long and his wife separated on May 16, 2011. On March 17, 2014, Long sued
Vitkauskas for alienation of affection. Vitkauskas, a resident of Pennsylvania, was served
with process via certified mail marked “restricted delivery” pursuant to Mississippi Rule of
Civil Procedure 4(c)(5). The address listed was Vitkauskas’s place of employment. The
return receipt was not signed by Vitkauskas but rather someone named “Mary” with the last
name illegible.
¶3. On May 14, 2014, Vitkauskas’s attorney entered a special appearance to contest
jurisdiction. Vitkauskas also filed a motion to dismiss for lack of jurisdiction. On October
9, 2014, the trial court granted the motion, finding that service was insufficient since
Vitkauskas himself did not sign the return receipt. Long filed a motion for reconsideration
and Vitkauskas responded. After a hearing, the trial court denied Long’s motion for
reconsideration and denied Long’s request for additional time to serve Vitkauskas.
¶4. Long now appeals, arguing that service of process was sufficient and that the trial
court erred by denying his request for additional time to serve Vitkauskas.
STANDARD OF REVIEW
¶5. We review de novo a trial court’s decision to grant or deny a motion to dismiss.
Johnson v. Rao, 952 So. 2d 151, 154 (¶9) (Miss. 2007). Furthermore, “the trial court, not the
jury, determines issues of fact regarding service of process, and we apply an
abuse-of-discretion standard to the trial court’s findings of fact.” Nelson v. Baptist Mem’l
Hosp.-N. Miss. Inc., 70 So. 3d 190, 195 (¶17) (Miss. 2011).
DISCUSSION
I. Service of Process
2
¶6. Long first contends that service of process on Vitkauskas was sufficient. Mississippi
Rule of Civil Procedure 4(c)(5) states the following for service of process on a person outside
Mississippi:
[A] summons may be served on a person outside this state by sending a copy
of the summons and of the complaint to the person to be served by certified
mail, return receipt requested. Where the defendant is a natural person, the
envelope containing the summons and complaint shall be marked “restricted
delivery.” Service by this method shall be deemed complete as of the date of
delivery as evidenced by the return receipt or by the returned envelope marked
“Refused.”
¶7. Long claims that he met the requirements of Rule 4(c)(5) regardless of who actually
signed the return receipt. And he claims that Vitkauskas clearly had notice since he sought
counsel in Mississippi, then filed an extension of time to respond to Long’s complaint as well
as a motion to dismiss. Vitkauskas argues that Rule 4(c)(5) requires the defendant
himself—not another person—to either sign the return receipt or mark the envelope
“refused.”
¶8. It is well settled that service of process on a nonresident defendant is jurisdictional and
requires strict compliance with the rules. Worthy v. Trainor, 11 So. 3d 1267, 1268 (¶4)
(Miss. Ct. App. 2009) (citation omitted). In this instance, Vitkauskas did not sign the return
receipt. The purpose of restricted delivery is to ensure that the addressee will be the actual
recipient of the posted item. Restricted delivery “alerts the Post Office personnel attempting
delivery that the person to whom it is addressed must either sign for it or refuse it.” DeCarlo
v. Bonus Stores Inc., 413 F. Supp. 2d 770, 774 (S.D. Miss. 2006) (Service of process was
insufficient where the envelope was not marked “restricted delivery” and a member of the
3
defendant’s household signed the return receipt.). Additionally, there was no evidence or
testimony that the person who did sign the return receipt had the authority to receive service
of process on Vitkauskas’s behalf.
¶9. In regard to Long’s contention that Vitkauskas had sufficient notice of the suit, we
find it has no merit. Vitkauskas affirmatively asserted the issue of insufficient service of
process by entering a special appearance to contest jurisdiction and by filing a motion to
dismiss. See Burleson v. Lathem, 968 So. 2d 930, 933 (¶10) (Miss. 2007) (“Even when
service of process is insufficient, this Court has held that service-of-process defenses must
be affirmatively asserted either in the initial responsive pleading or by motion.”).
II. Request for Additional Time
¶10. Long contends that good cause exists for additional time to serve Vitkauskas with
process. Rule 4(h) of the Mississippi Rules of Civil Procedure states a party must show good
cause why service of process was not made within 120 days of filing the complaint. We
review a trial court’s determination of whether good cause existed under our familiar
abuse-of-discretion standard. Stutts v. Miller, 37 So. 3d 1, 3 (¶7) (Miss. 2010).
¶11. We first note that the trial court did not actually address Long’s argument concerning
good cause. Long only raised this argument in his motion for reconsideration, but the trial
court did not address it in its order. The trial court simply denied the motion for
reconsideration. Long’s reason for good cause is that he thought he had strictly complied
with Rule 4(c)(5). However, “[t]o establish good cause the plaintiff must demonstrate at
least as much as would be required to show excusable neglect, as to which simple
4
inadvertence or mistake of counsel or ignorance of the rules usually does not suffice.” Powe
v. Byrd, 892 So. 2d 223, 226 (¶10) (Miss. 2004). The “excusable neglect standard is a very
strict standard.” Moore ex rel. Moore v. Boyd, 799 So. 2d 133, 136 (¶7) (Miss. Ct. App.
2001). Here, Vitkauskas clearly did not sign the return receipt. And Long could have
attempted to serve process again or filed a motion for additional time.1 We can find no abuse
of discretion by the trial court in this instance.
¶12. THE JUDGMENT OF THE DESOTO COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
GRIFFIS, P.J., BARNES, ISHEE, CARLTON, FAIR, JAMES AND
GREENLEE, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., DISSENTS
WITHOUT SEPARATE WRITTEN OPINION.
1
Our supreme court has held that although “a motion for additional time may be filed
after the 120-day time period has expired, a diligent plaintiff should file such a motion
within the 120-day time period” to support a claim that good cause existed for the failure to
properly serve process. Webster v. Webster, 834 So. 2d 26, 29 (¶11) (Miss. 2002); see also
Worthy v. Trainor, 11 So. 3d 1267, 1269 (¶6) (Miss. Ct. App. 2009) (good cause not shown
and no extension granted).
5