Ashley Darville v. Hector Mejia

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-CA-00832-COA
ASHLEY DARVILLE, INDIVIDUALLY, AND ON APPELLANT
BEHALF OF THE ESTATE OF CAROL
DARVILLE
v.
HECTOR MEJIA APPELLEE
DATE OF JUDGMENT: 05/09/2014
TRIAL JUDGE: HON. JANNIE M. LEWIS
COURT FROM WHICH APPEALED: HOLMES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: DANIEL ELLIS MORRIS
LINDSEY J. SCOTT
ATTORNEYS FOR APPELLEE: WALKER REECE GIBSON
BRADLEY SMITH KELLY
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
TRIAL COURT DISPOSITION: GRANTED APPELLEE’S MOTION TO
DISMISS WITH PREJUDICE
DISPOSITION: REVERSED AND REMANDED - 01/05/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., BARNES AND JAMES, JJ.
BARNES, J., FOR THE COURT:
¶1. On August 8, 2009, while traveling northbound on Interstate 55 in Holmes County,
Mississippi, Hector Mejia’s vehicle swerved into the left lane, and then overcorrected,
swerving back into the right lane, and colliding with the vehicle driven by Ashley Darville.
Her mother, Carol Darville, owned the vehicle and was a passenger in the car. Both women
sustained multiple injuries.1
¶2. On April 26, 2012, Darville filed a complaint for negligence against Mejia with the
Holmes County Circuit Court. After four attempts to serve notice on Mejia were
unsuccessful, Darville moved for an extension of time for service of process on September
14, 2012. See M.R.C.P. 4(h). While nothing in the record indicates the circuit court granted
the motion, the circuit court did grant a second motion for an extension on January 2, 2013,
allowing Darville an additional 120 days to serve the defendant. The second motion stated
a belief that Mejia was evading service of process and noted efforts by Darville to subpoena
Mejia’s license number and driving records from Tennessee and Mississippi to determine his
whereabouts. An investigation revealed that Mejia had approximately eighteen residences,
the majority of which were in Tennessee, between 2008 and 2013.
¶3. However, even after these inquiries, Darville was unable to locate and serve process
on Mejia. A third motion for an extension of time was filed on July 2, 2013. The record
reflects that the circuit court entered an order denying the third motion on June 27, 2013. A
fourth motion for an extension was filed on December 11, 2013, explaining the multiple
efforts to serve Mejia, who was believed to be “an illegal alien and/or a drifter.” On
February 10, 2014, Darville attempted service of process on Mejia through his insurance
company, United Automobile Insurance Company (UAIC).
¶4. Eventually, since Mejia was considered a nonresident motorist, Darville submitted
1
Carol Darville’s subsequent death was not related to the automobile accident.
2
service of process to the Mississippi Secretary of State’s Office on February 25, 2014,
pursuant to Mississippi Code Annotated section 13-3-63 (Rev. 2012). Service of process on
an out-of-state defendant under section 13-3-63 may be effected by serving Mississippi’s
Secretary of State, who must forward the summons/process to the defendant at his last known
address via certified or registered mail. A defendant’s return receipt or evidence of the
defendant’s refusal to accept delivery must be filed with the court in which the action is
pending. Miss. Code Ann. § 13-3-63. The Secretary of State attempted to forward the
summons to Mejia, but it was returned unclaimed.
¶5. On March 7, 2014, a motion to dismiss with prejudice was filed by attorney Bradley
Kelly with Copeland, Cook, Taylor & Bush (Copeland), purportedly on Mejia’s behalf,
although it was acknowledged that Copeland represented UAIC, Mejia’s insurer. The motion
alleged Mejia was improperly served through UAIC, who was not his registered agent. It
alternatively claimed that even if service of process was proper, the statute of limitations had
expired prior to perfection of service.
¶6. A hearing on the motion to dismiss was held on April 28, 2014. Kelly asserted that
he represented Mejia in the lawsuit and argued that service of process was insufficient and
that Darville’s claim was barred by the applicable statute of limitations. Darville admitted
service of process on UAIC as Mejia’s agent was not proper, but argued “the only attorney
that [Mejia] has is the Secretary of State” and “[c]ounsel ha[d] no standing” to file the motion
on Mejia’s behalf.
3
¶7. On May 15, 2014, the circuit court granted the motion and dismissed Darville’s
complaint with prejudice, concluding that “the statute of limitations ran before service of
process was perfected either by service upon Mejia’s insurance company, which [the court
found] to be unprecedented and unsupported by law, or upon the Secretary of State.” The
order did not address the standing issue asserted by Darville.
¶8. On appeal, we conclude that Darville exhibited good cause for not timely serving
process on Mejia, and there was insufficient information to determine that the applicable
statute of limitations had run. We reverse the circuit court’s dismissal with prejudice on this
ground and remand for further proceedings in accordance with this opinion.
STANDARD OF REVIEW
¶9. A circuit court’s grant or denial of a motion to dismiss is reviewed de novo. Shaver
v. Blackwell, 43 So. 3d 1155, 1157 (¶6) (Miss. Ct. App. 2010) (citing City of Jackson v.
Perry, 764 So. 2d 373, 375 (¶9) (Miss. 2000)).
DISCUSSION
I. Whether counsel had standing to bring the motion to dismiss on
Mejia’s behalf.
¶10. Darville contends the circuit court erred in granting the motion to dismiss, “as the
motion was not brought by Appellee, but by his insurance company, UAIC, who lacked
standing to bring the motion.” The Appellee responds that the motion “was clearly brought
by counsel on behalf of Hector Mejia, not [UAIC].” At the hearing on the motion to dismiss,
4
Kelly stated that he was there “on behalf of the Defendant,” making a “special appearance.”2
He noted that another member of his law firm was the registered agent for UAIC. However,
Darville’s counsel argued:
And we really shouldn’t be arguing this motion anyway, because [c]ounsel has
no standing and the motion itself[] is moot, because he has no standing,
because he has no relationship with Mr. Mejia, he hasn’t been hired by Mr.
Mejia, he hasn’t been contracted by Mr. Mejia. The only person counsel
represents is the insurance company.
¶11. We find Darville’s claim is not wholly supported by the circumstances. Kelly, who
was evidently appointed by UAIC to assist in the litigation brought against Mejia, claimed
he represented Mejia, not UAIC. There is no dispute that UAIC was not a party to the
proceeding or an agent for the defendant. Although the insurance contract is not contained
in the record, Kelly asserted at the hearing that Mejia was “afforded representation under his
insurance policy.” “In Mississippi, an insurance company’s duty to defend its insureds
derives . . . from the provisions of its policy, that is, its insurance contract with its insured.
It is a matter of contractual agreement.” Baker Donelson Bearman & Caldwell P.C. v.
Muirhead, 920 So. 2d 440, 450 (¶40) (Miss. 2006); see also Minn. Life Ins. Co. v. Columbia
Cas. Co., 164 So. 3d 954, 970 (¶57) (Miss. 2014) (“Under Mississippi law, the determination
2
We do not agree with Darville’s claim that Kelly made a general appearance, thus
waiving service of process. The only argument brought at the hearing was to contest
jurisdiction for failure to serve process upon the defendant. See Isom v. Jernigan,840 So.
2d 104, 107 (¶9) (Miss. 2003) (“Mississippi does not recognize ‘special appearances’ except
where a party appears solely to object to the court’s jurisdiction over her person on grounds
that she is not amenable to process.”).
5
of whether an insurance company has a duty to defend depends upon the language of the
policy as compared to the allegations of the complaint in the underlying action.”).
¶12. Furthermore, “[a]n insurance company’s duty to defend its insured is triggered when
it becomes aware that a complaint has been filed which contains reasonable, plausible
allegations of conduct covered by the policy.” Baker Donelson, 920 So. 2d at 451 (¶41).
Darville acknowledged UAIC’s duty to defend by attempting to serve Mejia through the
insurance company. After UAIC was notified of the complaint through Darville’s attempt
to serve process, it filed a motion to dismiss on Mejia’s behalf, presumably under its duty to
defend. Thus, we cannot conclusively state that counsel had no standing to file a motion on
Mejia’s behalf.
II. Whether the circuit court’s denial of Darville’s third motion for an
extension for service of process was an abuse of discretion.
¶13. Darville claims her third motion to extend time for service of process should have
been granted by the circuit court, as there was “good cause” shown for not being able to
serve Mejia. Mississippi Rule of Civil Procedure Rule 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.3
3
Federal Rule 4(m) states there is no limit to the number of extensions as long as a
legitimate reason exists to grant the extension and it results in no prejudice to the defendant.
4B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1137 (4th
6
Once a party has been granted an initial extension of time under Rule 4(h) in which to serve
process, “a second or subsequent extension of time to effectuate service of process may be
granted by the trial court only upon a showing of ‘good cause.’ In other words, once the
initial, 120-day period after filing the complaint has elapsed, good cause is required to avoid
dismissal.” Johnson v. Thomas ex rel. Polatsidis, 982 So. 2d 405, 413 (¶24) (Miss. 2008).
This Court has noted:
To establish good cause, the plaintiff must demonstrate that she made diligent
efforts to effect service upon the defendant. Foss v. Williams, 993 So. 2d 378,
379 (¶6) (Miss. 2008). Examples of good cause include: “when the failure is
a result of the conduct of a third person; when the defendant has evaded
service of process or engaged in misleading conduct; when the plaintiff has
acted diligently; when there are understandable mitigating circumstances; or
when the plaintiff is proceeding pro se or in forma pauperis.” Id.Shaver, 43 So. 3d at 1157-58 (¶8) (emphasis added). Determining whether good cause exists
is “a discretionary ruling on the part of the trial court and entitled to deferential review of
whether the trial court abused its discretion and whether there was substantial evidence
supporting the determination.” Rains v. Gardner, 731 So. 2d 1192, 1197 (¶18) (Miss. 1999).
¶14. According to the record, Mejia had multiple listed addresses. The steps utilized to
serve process on Mejia are as follows:
! A summons was issued to a listed Memphis address on May 1, 2012,
by a process server. The return receipt indicates “bad address”/unable
to serve.
! Second summonses were issued August 6, 2012, via certified mail to
ed. 2015).
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several addresses.
! A motion to extend time for service of process was filed on September
14, 2012. No order or action was taken on this motion.
! A second motion to extend time was filed on January 2, 2013, outlining
four attempts to serve process, and alleging Mejia was evading process.
The court granted an additional 120 days for service of process on
January 3, 2013.
! Darville issued subpoenas duces tecum to Tennessee and Mississippi
to obtain Mejia’s driving records/car license and registration, but was
unsuccessful in locating Mejia. A search revealed that Mejia’s Social
Security number was linked to multiple people.
! Darville filed a third motion for an extension on June 24, 2013, noting
extensive efforts to locate the defendant, “but to no avail.” The motion
was denied for lack of sufficient evidence for good cause.
Despite these attempts, Darville was unable to serve process on Mejia, and she presumes that
Mejia is likely an illegal alien and/or a transient.
¶15. In Jenkins v. Oswald, 3 So. 3d 746 (Miss. 2009), Margaret Oswald was unable to
locate the defendant, William Jenkins, through a series of internet searches for the
defendant’s driver’s license records and addresses. Jenkins was finally served process almost
five years after the initial filing of the complaint, and he subsequently filed a motion to
dismiss for the failure to comply with Rule 4(h). Id. at 747 (¶¶2-3). Although the trial court
noted that “the absence of application for an extension of time to search for Jenkins [was]
problematic,” it did not find the delay to be “a fatal flaw” as “Oswald was making some
diligence, or at least reasonably diligent efforts” to locate Jenkins, and it denied the motion
to quash service of process and dismiss the action. Id. at 749 (¶11). The supreme court
8
affirmed the trial court’s ruling, finding it supported by “substantial evidence.” Id. at 750(¶16).
¶16. We acknowledge that Darville filed the third motion to extend time for service of
process on June 24, 2013, outside the 120 days granted by the circuit court on January 3,
2013. When a plaintiff has difficulty in effecting service of process upon a defendant, “it [is]
incumbent upon him to petition the court for an extension of time prior to, rather than after,
the expiration of the 120-day period.” Sanders v. Robertson, 954 So. 2d 493, 496 (¶13)
(Miss. Ct. App. 2007). However, as noted in Jenkins, this failure is not fatal to the action.
In Webster v. Webster, 834 So. 2d 26, 29 (¶11) (Miss. 2002), the supreme court held that “a
motion for additional time may be filed after the 120-day time period has expired,” but
suggested that filing prior to the expiration of the 120 days “would support an allegation that
good cause exists for failure to serve process timely.” (Emphasis added).
Our rule states that if the 120-day period has elapsed without effecting service
of process, “the action shall be dismissed . . . upon the court's own initiative
with notice to such party or upon motion.” M.R.C.P. 4(h). The comments
state that the complaint will be dismissed “unless good cause can be shown as
to why service could not be made.” The rule therefore provides that the
plaintiff will have an opportunity to show good cause after the 120-day period
has elapsed. Why else does Rule 4(h) require that notice be given to the
plaintiff before the court can dismiss the complaint? The requirement of
notice being given contemplates a response to the notice. A motion for
additional time is an appropriate response to the notice.
Id. at (¶10).
¶17. Thus, while we are to give the circuit court deference in its decision to deny Darville’s
third and subsequent extensions of time to serve process, we find the court’s denial was not
9
supported by substantial evidence. Kelly, counsel for Mejia, claims that Darville’s search
has “not been diligent,” but the record clearly shows that over a period of almost two years,
Darville attempted to locate Mejia through numerous internet searches, albeit unsuccessfully.
The only specific lack of diligence cited by Kelly is Darville’s failure to attempt service with
the Secretary of State earlier. Darville did not attempt process through the Secretary of State
until February 26, 2014. Yet service would still not have been effective, as the Secretary of
State also failed to locate Mejia – the notice of service was returned unclaimed, and the
return receipt was not signed. In State Farm Mutual Automobile Insurance Co. v. Stewart,
209 So. 2d 438, 440 (Miss. 1968), the supreme court voided a default judgment against the
defendant because there was no return receipt from the defendant; nor was there a “refusal
of the letter by him . . . or any evidence of the actual delivery of the process to him.” “It is
essential to due process that a defendant have notice of an action against him.” Id.; see also
Arcenaux v. Davidson, 325 F. Supp. 2d 742 (S.D. Miss 2004) (denying a motion for default
judgment as the defendant, who was served through the Secretary of State under the long-arm
statute, had “neither signed the return receipt nor ‘refused’ to accept delivery of the summons
and complaint”). Accordingly, there is no evidence that Darville’s failure to attempt service
with the Secretary of State earlier would have had any effect on this litigation.
¶18. The dissent posits that Darville never attempted service at the most current listed
residence for Mejia. However, the dissent disregards the fact that even Mejia’s counsel,
Kelly, failed to provide any definitive information as to Mejia’s whereabouts, nor make any
10
representation as to what diligence could have located Mejia. Compare Moore v. Boyd, 799
So. 2d 133, 137 (¶13) (Miss. 2001) (Although Moore claimed he could not locate Boyd,
evidence showed Boyd’s own father told Moore where Boyd could be located, but Moore
failed to serve process within the prescribed time period and “made no effort to obtain such
an extension in order to steadfastly preserve his future efforts at service on Boyd.”). If Mejia
was so easily found, as claimed by the dissent, why did Kelly not inform the trial court of this
information to support its motion to dismiss? As noted by Darville, “as of this date, [Mejia]
has not and [cannot] be located by [Darville], the courts, nor his own insurance carrier,
UAIC.”
¶19. We find that Darville provided substantial evidence that good cause existed for his
failure to serve process within the prescribed period, and the circuit court abused its
discretion in denying his motions for additional time.
III. Whether the trial court erred in granting the motion to dismiss.
¶20. In granting the motion to dismiss, the circuit court observed that even had it granted
another extension for time, the case could not be “revived” before the statute of limitations
had run. The circuit court dismissed the action with prejudice based on its conclusion that
the statute of limitations had run under Mississippi Code Annotated section 15-1-49 (Rev.
2012), which prescribes a general three-year limitations period.4
4
Rule 4(h) clearly provides that an action “shall be dismissed without prejudice” if
service is not effected within the prescribed 120 days and the plaintiff fails to “show good
cause.” (Emphasis added).
11
¶21. However, the circuit court failed to consider that the statute of limitations may be
tolled under Mississippi Code Annotated section 15-1-63 (Rev. 2012), which states:
If, after any cause of action has accrued in this state, the person against whom
it has accrued be absent from and reside out of the state, the time of his
absence shall not be taken as any part of the time limited for the
commencement of the action, after he shall return.
(Emphasis added). This statutory provision has been construed “to require that a plaintiff
seeking to benefit from it must have been unable to effect service on the defendant for the
period which it is claimed that the statute is tolled.” Sullivan v. Trustmark Nat’l Bank, 653
So. 2d 930, 931 (Miss. 1995) (citing Gulf Nat’l Bank v. King, 362 So. 2d 1253, 1254 (Miss.
1978)). The supreme court has explained:
That is, the defendant must have left the state and not be amenable to service
under a long-arm statute or other means, because for example, his whereabouts
are unknown. The period of time that the defendant’s whereabouts are
unknown is deducted from the period of the statute which would otherwise
have run, in effect, adding that 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. The burden of proof that the
defendant was absent and not amenable to service is on the plaintiff.
Id. at 931-32.
¶22. Unless and until Mejia is located, and the circuit court is made aware of where he has
been since the date of the accident, it will be unable to determine whether the statute of
limitations has been tolled or has expired. Due to this uncertainty as to whether the statute
of limitations has run, we find the circuit court erred in granting the defendant’s motion to
dismiss with prejudice. Because Darville has shown good cause for her failure to serve
12
process, and the statute of limitations may be tolled in this instance, we reverse and remand
for further proceedings.
¶23. THE JUDGMENT OF THE HOLMES COUNTY CIRCUIT COURT IS
REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLEE.
LEE, C.J., IRVING, P.J., ISHEE AND JAMES, JJ., CONCUR. WILSON, J.,
DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, P.J.,
CARLTON AND FAIR, JJ.
WILSON, J., DISSENTING:
¶24. The Mississippi Supreme Court has emphasized that a “trial court’s finding of fact on
the existence of good cause for the delay in service of process has been deemed ‘a
discretionary ruling and entitled to deferential review’ on appeal.”5 Therefore, “we . . . only
examine ‘whether the trial court abused its discretion and whether there was substantial
evidence supporting the determination.’”6 I dissent because, applying our deferential
standard of review, I cannot say that the trial court abused its discretion by finding that
Darville failed to establish good cause or erred by dismissing the complaint with prejudice.
¶25. The complaint in this case was filed on April 26, 2012, a little over 100 days prior to
5
Jenkins v. Oswald, 3 So. 3d 746, 750 (¶13) (Miss. 2009) (quoting Holmes v. Coast
Transit Auth., 815 So. 2d 1183, 1185 (¶6) (Miss. 2002)) (alterations omitted).
6
Id. (quoting Holmes, 851 So. 2d at 1185 (¶6)); see also id. at 751 (¶23) (Pierce, J.,
joined by Randolph, Lamar, and Kitchens, JJ., specially concurring) (“It cannot be
overstated that our trial courts are entitled to ‘deferential review’ in matters that require a
discretionary ruling.”); Stutts v. Miller, 37 So. 3d 1, 7 (¶20) (Miss. 2010) (Pierce, J., joined
by Randolph, Lamar, and Chandler, JJ., specially concurring) (same).
13
the expiration of the statute of limitations. Service was attempted on Mejia on May 30, 2012,
but the process server reported that the address in Memphis was a “bad address.” Indeed, the
address on the summons appears to have been incomplete and inaccurate—it was directed
to Mejia at “4316 Sunny Drive,” but other records indicated that he lived or once lived at
“4316 Sunnyslope Drive.”
¶26. A little over two months later, on August 6, 2012, Darville obtained summonses for
three new addresses, including the “Sunnyslope Drive” address. She attempted to serve
Mejia by certified mail at these addresses but was unsuccessful.
¶27. On September 14, 2012—after the 120-day period for service of process had already
expired—Darville moved for additional time to serve Mejia. Without any apparent support
in the record, Darville asserted that there was “reason to believe” that Mejia was “attempting
to evade service of process.” The circuit judge never ruled on this motion.
¶28. More than three months later, on January 2, 2013, Darville filed a second motion for
an extension of time. In the motion, she reported no new efforts to serve Mejia but stated
that she was “subpoenaing the license/driving records of [Mejia] to attain his current
whereabouts, as evidenced by [an attached exhibit].” The attached exhibits were draft
subpoenas to two state agencies in Tennessee and the Mississippi Department of Revenue.
The circuit judge granted Darville’s motion for an additional 120 days to serve Mejia.
¶29. The docket reflects that the clerk issued subpoenas to Darville’s attorney, but Darville
never filed any proof of service. See M.R.C.P. 45(c). She did attach copies of the subpoenas
14
as exhibits to a subsequent motion. One was stamped as “received,” but the other two bore
no indication of service or receipt. There is no evidence in the record as to whether the
subpoenas were ever served or whether any responses were received.
¶30. A docket entry in February 2013 indicates that the clerk mailed another summons to
Darville’s attorney. However, the record contains no proof of service or anything else to
indicate the address on the summons or what became of it.
¶31. On July 2, 2013, Darville filed a third motion for additional time to serve Mejia. This
motion was filed fifteen months after Darville filed her complaint and approximately two
months after her 120-day extension had expired. In her motion, Darville vaguely reported
that she had subpoenaed Mejia’s driving and license records in an effort “to attain his current
whereabouts, but to no avail.” She also represented that she had “received one remaining
address for [Mejia] and would like to attempt to serve [Mejia] at that location.” The circuit
judge promptly denied this motion, finding that Darville “failed to provide . . . the Court with
sufficient evidence to find that good cause exists for the extension or that the extension was
requested within the prior 120 days extension.” There is nothing in the record to indicate that
Darville ever attempted service at the “one remaining address” she had received.
¶32. The docket reflects no further action in the case for almost six months until December
20, 2013—twenty months after the complaint was filed—when Darville filed a fourth motion
for additional time to effect service. In this motion, Darville stated that she had “performed
extensive investigations as to the whereabouts of [Mejia], as evidenced by [an attached
15
exhibit].” The attached exhibit is a LexisNexis public records search. Darville also asserted
that Mejia was “evading service” and was “believed to be an illegal alien and/or a drifter”
or possibly “a vagrant” (emphasis by Darville). Finally, based on the LexisNexis report,
Darville alleged that Mejia “uses multiple names, addresses and identification[s]” and that
his “social security number is linked to multiple individuals.”
¶33. In February 2014, Darville attempted to serve Mejia through the Secretary of State
pursuant to Mississippi Code Annotated section 13-3-63 (Rev. 2012) and through his
insurance company. The Secretary of State’s attempt to serve Mejia by certified mail was
unsuccessful, but it should be noted that the summons was mailed to the same “Sunny Drive”
address that appears to have been incomplete and inaccurate when service was first attempted
there almost two years earlier. At this point, as the majority describes, Mejia moved to
dismiss on the ground that Darville’s claim was barred by the statute of limitations as a result
of her failure to effect service within the time permitted by Mississippi Rule of Civil
Procedure 4(h). In opposition to the motion, Darville repeated her various allegations
regarding Mejia, including that he is an “illegal alien,” a “vagrant,” or a “drifter.”
¶34. In May 2014, after a hearing, the circuit judge granted Mejia’s motion to dismiss. In
her order, the judge reaffirmed her prior ruling that Darville failed to establish good cause
for an extension, and she concluded that the statute of limitations had run as a result.
¶35. As Darville’s arguments rely heavily on a LexisNexis public records search, that
report is worth examining. Darville says that the report shows that Mejia “has eleven (11)
16
different aliases.” However, the report refers to these as “Name Variations,” not “aliases,”
and they are all slight variations on Hector Mejia or Hector Mejia Herrera (e.g., with and
without a “Sr.” or with and without a middle name or initial). Darville also says that the
report reveals “eighteen different residences from 2008-2013.” However, some of these are
obvious duplicates, and the report shows only five possible addresses for the period of time
after Darville filed her complaint and attempted service. Finally, Darville highlights the
following notation in the LexisNexis report: “SSN linked to multiple people.” Perhaps this
is supposed to support her claim that Mejia is an “illegal alien,” but its meaning is at best
unclear, and it may simply refer Mejia’s “Name Variations.” In sum, Darville’s LexisNexis
report, which she refers to as an “Investigative File,” actually reveals little if anything that
would support a finding of good cause. It certainly does not demonstrate that the circuit
judge abused her discretion by finding that good cause was lacking.
¶36. This is not to say that the report is entirely lacking in potentially useful information.
For one thing, it indicates that Mejia has a valid and current Tennessee driver’s license that
he renewed in February 2012. He appears to have maintained a Tennessee license since at
least 2002. The Tennessee Department of Safety is not supposed to issue licenses to illegal
aliens. Tenn. Code Ann. § 55-50-303(9). Possibly the most relevant piece of information
in the report is the address associated with Mejia’s current Tennessee driver’s license, which
was issued just two months before Darville filed her complaint. This address is also the
first—and seemingly current—address listed in the LexisNexis report and the address
17
connected to his most recent Tennessee vehicle registration. Yet as far as I can discern from
the record, Darville never once attempted to serve Mejia at this address, even though her
own research seems to suggest that it was his most likely place of residence. There may be
a good explanation for this, but if there is, it is not in the record.7
¶37. On this record, it simply cannot be said that the circuit judge abused her discretion by
finding that Darville failed to meet her burden of establishing good cause.8 Indeed, the
evidence that Darville placed before the circuit judge supports a finding that she took no
steps to effect service from August 2012 until February 2014, when she attempted service
through the Secretary of State at what appears to be an incomplete and incorrect address.
¶38. As noted above, the circuit judge’s ruling on this issue is “a discretionary ruling and
entitled to deferential review on appeal.” Jenkins, 3 So. 3d at 750 (¶13) (alterations omitted).
This point “cannot be overstated.” Id. at 751 (¶23) (Pierce, J., specially concurring). “When
we say that the trial court has discretion in a matter, we imply that there is a limited right to
be wrong. The statement imports a view that there are at least two different decisions that
the trial court could have made which on appeal must be affirmed.” Darnell v. Darnell, 167
7
The majority misunderstands my point. I make no claim that “Mejia was . . . easily
found.” Ante, at (¶18). To begin with, it was not Mejia’s burden to prove that he was
“easily found.” It was Darville’s burden to prove that she acted diligently in trying to effect
service. See Holmes, 815 So. 2d at 1185-87 (¶¶7, 12-14). The absence of any record
evidence that she ever attempted to serve Mejia at the address associated with his current
driver’s license is relevant to that issue. We do not know whether Mejia would have been
“found” there because Darville apparently never attempted service there.
8
See Holmes, 815 So. 2d at 1185 (¶7) (“The plaintiff bears the burden of establishing
good cause.”).
18
So. 3d 195, 207 (¶ 34) (Miss. 2014) (quoting Burkett v. Burkett, 537 So. 2d 443, 446 (Miss.
1989)) (alterations omitted). For this reason, the majority’s reliance on Jenkins is misplaced.
That decision affirmed the trial court’s finding of good cause, but it in no way implied that
the Court would have reversed a finding that good cause was lacking. Indeed, from reading
the opinions in Jenkins, a 5-to-4 decision, I cannot help but conclude that the Court would
have affirmed either finding by the trial court,9 as is often the case with a trial court’s
discretionary ruling. Therefore, it would be a mistake to suggest that the circuit judge in this
case should be reversed simply because Darville’s attempts to serve Mejia are in some ways
similar to those of the plaintiff in Jenkins. The only question for this Court is whether there
is substantial evidence in the record in this case to support the circuit judge’s finding that
good cause was lacking. For the reasons discussed above, there is.
¶39. The majority also concludes that any dismissal should have been without prejudice
because “the statute of limitations may be tolled in this instance” pursuant to Mississippi
Code Annotated section 15-1-63 (Rev. 2012). See Sullivan v. Trustmark Nat’l Bank, 653 So.
2d 930, 931-32 (Miss. 1995); M.R.C.P. 4(h).10 However, Darville did not raise this issue in
the circuit court in opposition to Mejia’s motion to dismiss or at the hearing on the motion.
9
See Jenkins, 3 So. 3d at 750 (¶16) (emphasizing the deferential standard of review
and criticizing the dissent for only “pay[ing] lip service to the principle”); id. at 751 (¶¶19-
24) (Pierce, J., specially concurring) (emphasizing the deferential standard of review and
“yield[ing] to [the trial court’s] finding”).
10
As with the issue of good cause, “[t]he burden of proof that [the statute of
limitations should be tolled because] the defendant was absent [from the State] and not
amenable to service is on the plaintiff.” Sullivan, 653 So. 2d at 931-32.
19
See Moffett v. State, 49 So. 3d 1073, 1088 (¶41) (Miss. 2010) (“The well-recognized rule is
that a trial court will not be put in error on appeal for a matter not presented to it for
decision.” (quoting Mills v. Nichols, 467 So. 2d 924, 931 (Miss. 1985))). Nor has she
articulated it on appeal. The nature of the dismissal is not identified as an issue or specified
as error. Near the conclusion of both her principal brief and her reply brief, Darville cites
Sullivan as a “cf.” at the tail end of a long string-cite, with a parenthetical reference to section
15-1-63. However, the argument to which the string-cite is appended is that the statute of
limitations was tolled during each 120-day period for service. This is insufficient to preserve
the distinct issue that the majority addresses, see M.R.A.P. 28(a)(3) & (6), even if it had been
raised in the circuit court, which it was not. Accordingly, I would hold that this issue is
waived.
¶40. In conclusion, on the record before us, it cannot be said that the circuit judge abused
her discretion by finding that Darville failed to meet her burden of establishing good cause.
Therefore, the circuit judge did not err by dismissing the complaint. Because the majority
reaches a different conclusion, I respectfully dissent.
GRIFFIS, P.J., CARLTON AND FAIR, JJ., JOIN THIS OPINION.
20