IN THE SUPREME COURT OF MISSISSIPPI N O. 2015-CT-00527-SCT DOUGLAS MICHAEL LONG, JR.

v. DAV ID J. V ITKAUSKAS ON WRIT OF CERTIORARI DATE OF JUDGMENT: 10/09/2014 TRIAL JUDGE: HON. ROBERT P. CHAMBERLIN TRIAL COURT ATTORNEYS: JAMES MATTHEW LENDERMAN A. E. (RUSTY) HARLOW , JR. COURT FROM W HICH APPEALED: DeSOTO COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: MICHAEL J. MALOUF JAMES MATTHEW

LENDERMAN ROBERT EUGENE JONES, II ATTORNEYS FOR APPELLEE: A. E. (RUSTY) HARLOW , JR. KATHI C. W ILSON NATURE OF THE CASE: CIVIL - TORTS-OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE DISPOSITION: REVERSED AND REMANDED - 10/05/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC. WALLER, CHIEF JUSTICE, FOR THE COURT: ¶1. On March 1 7, 2014, Douglas Michael Long Jr. f iled sui t a g a i n st Pennsy l vania resident David J. V itkauskas f

o r alienation of af

f e ctions. V itkauskas e ntered a special appearance and then f iled a m otion to dism iss f

or, inter alia , insuf

f icient service of process under Mississippi Rule of Civil Procedure 4(c)(5). The trial court granted Vitkauskas’s m otion to dism iss onthe ground of insuf f icient service of p rocess, and the Co u r t o f A p p eals af f i rm e d

. Finding service was suf

f icient, we reverse and rem and to the trial court f or f urther proceedings. FACTS AND PROCEDURAL HISTORY ¶2. Long and his wif e separate d o n M a y 1 6 , 2 0 1 1

. On March 17, 2014, Long sued Vitkauskas in DeSoto County Circuit Court f o r alienation of a f

f ections. Long attem

pted to

serve p rocess on Vitkauskas, a resident of Pennsy lvania, via certif ied m ail m a r

ked “restricted delivery ” pursuant to M ississippi Rule of Civil Procedure 4(c)(5). T he m ailing w a s a d dressed
to Vitkauskas at his place o f em ploy m ent. W hile delivery

was restricted to Vitkauskas, the return receipt was signed by som e one nam ed “Mary ” with the last nam e illegible. ¶3. On May 14, 2 014, V i t k a u s k a s ’ s a t t o r ney entered a s pecial appearance to contest jurisdiction and f

iled a m otion to dism iss on t he basis of insuf f i cient s ervice of process, stating “service o f p r o c e s s w as insuf f icient i n that the sum m ons was m ailed to the Def end a n t [ ’ ]s em ploy er[ ,] not to the Def

endant.” 1 In his response, L ong claim ed h e com plied with t he requirem ents of R ule 4, attachi n g t h e r e t u rn receipt as an exhibit. On October 9, 2014, the trial court granted Vitkauskas’s m ot i o n , f i n d ing that service was insuf f icient b e c a use t he signature, “Mary Bre

. . . ,” appeared on the return receipt instea d o f Vitk a u s k a s ’ s s i g n a t

u r e . L o ng f iled a m otion f

or r econsideration, s t ating p rocess was adequate under the rules o r , alternatively , f or add i t i o n a l tim e t o serve Vitkauskas, because the t im e

1 Wh i le o th er g r o u n d s w ere alleg ed , th e trial co u rt lim i ted its ru lin g to in su f f icien t serv ice o f p ro cess. 2within w hich t o s e rve V ikauskas had expired. 2 Af ter a h earing, the trial court denied Long’s

m otion f or reconsideration. ¶4. Bef

ore the Court of

Appeals, Long argued service of process w as suf f icient and the trial court had erred by f

ailing to consider his r equest f or additional tim e t o serve Vitkauskas. The Court of Appeals a f

f irm ed the trial court’s dism issal o f the case, f indin g no abuse of discretion. Long v

. V itkauskas , 2 016 W L 5793348, at *2 (Miss. Ct. App. Oct. 4 , 2016), cert. granted by 214 So. 3d 1060 ( Miss. 2017). W e granted Long’s petition f or writ of certiorari, which raised the f

ollowing two issues: (1) whether the trial court and the Court of Appeals erred by f inding that service of process was insuf f icient, and (2) whether the trial court erred by ref using to consider Long’s request f o r a d d itional tim e to serve Vitkauskas. W e hold service of process was suf

f icient; theref

ore, Long’s second concern is m oot. STANDARD OF REVIEW ¶5. The standard of review f or a trial court’s grant or denial of a m otion t o dism iss is de

novo . Johnson v

. R a o , 9 5 2 So. 2d 151, 154 (¶ 9) (Miss. 2007). W ith regard to service of
process, this Court appli e s a n a buse-of -discretion standard of review to the trial court’s

2 L o n g ’ s w in d o w to serv e p ro cess w as 1 2 0 d ay s. A lso , th e statu te o f lim i t a tio n s o n L o n g ’s claim o rig i n ally w as set t o ru n o n M ay 1 5 , 2 0 1 7

. H o w e v e r, L o n g f iled h is c o m

p lain t o n M arch 1 7 , 2 0 1 4 , w h ich to lled th e lim i tatio n s d ate u n til S ep t em b e r 1 1 , 2 0 1 4

. V itk au sk as f iled h is m o tio n to d ism iss o n M ay 1 4 , 2 0 1 4 , an d th e h earin g o n th e m o tio n w as set f o r A u g u st 1 5 , 2 0 1 4

. T h e circu it co u rt d id n o t issu e its o rd er o f d i sm issal u n til O cto b er 9 , 2 0 1 4 , w h ich w as tw en ty

- eig h t d ay s af ter th e statu te o f l im itatio n s h ad ru n o n L o n g ’s c laim an d 1 2 9 d ay s af ter th e m o tio n to d ism iss h ad b een f iled

. 3f

indings of f

act. Nelson v. Baptist Mem ’l Hosp.–N. Miss., Inc. , 70 S o. 3d 190, 195 (¶ 17) (Miss. 2011). DISCUSSION ¶6. Mississippi Rule of Civil Procedure 4 (c)(5) requires a m ailing of process t o a n out-of

state, natural def

endant be m arked “restricted delivery .” [ A] sum m o ns m ay be served on a p erson outside this state by sending a copy of t he su m mo n s a n d of the com plaint to the person to be served b y certif ied m ail, return receipt r equested. W here the def endant is a natural person, the envelope containing the sum m ons and com plaint shall be m arked “restricted delivery .” Service b y this m ethod shall be deem ed com plete as of

the date of delivery a s evidenced by the return receipt o r b y the returned envelope m arked “Ref used.” Miss. R. Civ. P. 4(c)(5). ¶7. First, a l ine-by -line review of Rule 4 ( c ) ( 5 ) s h o w s L o n g c o m p l i e d w i th every requirem ent under the r u l e . V i t k a u skas is a resident of P ennsy lvania; thus, he is a “person outside this state” f

o r p urposes of Rule 4. Miss. R. C i v. P. 4. T heref ore, s ervice m ay be had

on Vitakuskas “by sending a copy of the sum m ons a nd o f the com p laint to [ h im ] by certif

ied

m ail, return receipt requested.” Id. The sum m on s w a s sent t o V itkauskas’s place of

em ploy m ent, addressed as f

o llows: David J. Vitkauskas Berwick Of

f r ay , LLC 2015 W est Front Street Berwick, PA 18603. Id

. P r o cess was ef

f ected by “CERTIFIED MAIL SERVICE. By m ailing t o an address outside Mississippi (by f

irst class m ail, postage prepaid, m arked restricted delivery , a n d requiring a
4return receipt) copies t o the p e rson served.” Id. As Vitkauskas is a na t u r al person, the

envelope m

u st have been m a rked “restricted delivery .” I d. Both the p roof of service and the
return receipt evidence t hat it was so m arked. Finally , the r ule p rovides that “[ s]ervice by this

m ethod shall be deemed complete a s o f the d ate of d elivery a s evidenced by the return receipt or by the returned envelope m arked ‘Ref used. ’ ” I d

. ( e m p h asis added). Long presented the return receipt to the trial court. Accordingly , Long c om plied with all the requirem ents set out within the Rule. ¶8. The central concern, though, is that the nam e “Mary ” appeared on the return receipt, instead of the def

endant’s nam e. W e d o not know who “Mary ” is. Nevertheless, “we have held that a return o f process is presum ed to be correct

. . . .” McCain v . Dauzat , 7 91 So. 2d 839, 842 (¶ 8) (Miss. 2 001); see also Collins v. Westbrook , 184 So. 3d 922, 9 29 (¶ 18) (Miss. 2016); W esley Health Sys., LLC v. Estate of Love , 200 S o. 3d 440, 445 ( ¶ 21) (Miss. 2016).
Because “restricted delivery ” lim its the delivery o f ma il “to the addressee or to the person authorized in writing a s the addressee’s agent ,” 3 a rebuttable presum p tion arises that the return receipt was signed by the def endant or his authorized agent.

3 United States Postal Service, Dom estic Mail Manual (DMM), § 508, Ex. 1.1.8, https://pe.usps.com

/ text/dm m 300/508.htm #ep1044900 (last visited Oct. 3, 2017) (em phasis added). See also Postal Regulatory Com mission, M ail Classif ication Schedule (MCS), § 1505.5.1, https://www.prc.gov/m ail-classif ication-schedule (last v i sited Oct. 3, 2017) ( p r oviding classif

ications of postal products pursuant to the Postal Accountability and E n hancem ent Act (PAEA), Pub. L. 109-435, 120 S tat. 3198, Oct. 3, 2006) (“Rest r i c t e d Delivery

. . . directs delivery only t o the addressee or addressee’s agent.”) (em p hasis added). 5¶9. The presum ption is rebuttable through the use of extrinsic evidence, “including the testim o ny of the party who is contesting service.” Collins , 1 84 So. 3 d at 929 (¶ 18). Indeed, “testim ony [ by t he contesting party ], if believed, [ i s] suf f icient to overcom e the presum ption

a n d t o s u p p ort [ a] f

inding

. . . that she was not served.” Lam pton–Reid C

o. v. A llen , 177 Miss. 6 98, 714, 1 71 So. 780, 783 (1937). However, “ in the absence of a n objection and of f er of proof by [ a party , a ] due-process argum ent is without substantive m erit.” Wilburn v. Wilburn , 991 So. 2d 1185, 1192 ( ¶ 16) (Miss. 2008). Vitkauskas n ever argued that “Mary ”

was not his authorized agent, nor did he state that he f ailed t o receive process. A dditionally , the record contains no o f

f er of proof by Vitkauskas to contest either point. Had he done so, the burden t hen would have s hif ted to L o n g t o p r o v e “Mary ” was an authorized agent of Vitkauskas. However, without an appropriate objection and o f f er of p roof

, Vitka u s k a s’s “due-process argum ent [ was] without substantive m erit.” Id. CONCLUSION ¶10. The t rial court and Court of Appeals erred in r uling that Long’s s ervice of process on V i t k a u s k a s w a s i n s u f

f icient. U nder Rule 4(c)(5), a rebuttable presum p tion arises that a sig n e d
return receipt is valid when delivery is restricted. The presum ption c an be rebutted, but only if the def endant objects thereto and subm its an of f e r of proof t o the contrary . Accordingly ,

we reverse the judgm ents of the C ourt of Appeals and the trial court, and we rem and this case to the circuit court f

or f urther proceedings consistent with this opinion. ¶11. REVERSED AND REMANDED

.

6RANDOLPH AND KITCHENS, P.JJ., KING AND BEAM, JJ., CONCUR.

COLEMAN, J., DISSENTS WITH SE P A RATE W R ITTEN OPINION JOINED BY MAX W ELL, J. CHAMBERLIN AND ISHEE, JJ., NOT PARTICIPATING. COLEMAN, JUSTICE, DISSENTING: ¶12. Because t he m ajority m isapplies t he presum ption of correctness tha t a

p p l i e s t o a r eturn of process I, with respect, dissent. ¶13. In M

cCain v. D auzat , 7 91 So. 2d 839 (Miss. 2001), upon which the m ajority chief ly relies f o r its crucial prem ise that sum m ons is presum ed to have been served on Vitkauskas i n t h e case sub j udice , the process server provided a s worn af f idavit a n d a sworn return o f
process that identif

ied t he def

endant as the individual upon whom p rocess had been served. Id. at 8 41 (¶ 2) (“[ T]he proof o f service indicates t hat a sum m ons and copy of the com plaint

were personally served on McCain.

. . .”) The p resum ption i s not t hat a def

endant claim ing
not to have been served is presum ed to have been served, but t hat t h e r e turn of service of
process accurately r ef

lects the identity of the person served. Id. at 842 (¶ 8) (“[ A] return of
process is presum ed to be c o r r e c t

. . . .”) If any t hing, in t he instant case the presum ption operates in f

avor of V itkauskas’s claim not to have been s erved, as t h e r e t u rn receipt identif ies the person served as the m y sterious Mary

. ¶14. In any event, f

r om the m isapplication of the presum ption, the m ajority concludes that

a rebuttable presum

ption exists that the return r eceipt was signed by t h e d e f e n d a nt or his authorized agent. The m ajority cites no additional authority f or its conclusion other than a postal service m anual. Certainly , the m ajority cannot m ean that, as a m a t t e r o f l a w , a

7def

endant him self is p resum ed t o have signed a r eturn receipt when all agree that som eone else’s signature appears upon it. Moreover, presum ing that a postal service r egulation was properly observed by an uniden t i f i e d postal service em

ploy ee dif

f ers i n a f undam ental

m anner f rom presum ing that sum m o ns was properl y served based on a sworn return of
process or a f

f idavit identif

y ing by name b o th the server and the def endant as the person served. Finally , the m ajority skips a necess a r y step, in that t he m ajority does not establish that authorizing another as an agent f or the purpose of

accepting certif

ied m ail pursuant to the postal m anual equates to authorizing another to a c cept service of p r o c e s s i n a m anner satisf y ing the requirem ents of

due process. ¶15. For the f

oregoing reasons, I cannot agree with the ma j o r i t y ’ s c r e a t i o n o f a n ew presum ption that, when sum m ons is certif ied via certif

ied m ail, a return of service s igned by
any unidentif

ied person creates a p r e s u

m p t i o n t h a t t h e p laintif f properly served the def

endant. Because the trial court and Court of Appeals were correct, I would af f irm

. MAX WELL, J., JOINS THIS OPINION.

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