IN THE COURT OF APPEALS

OF THE

STATE OF MISSISSIPPI

NO. 95-CA-00906 COA

HAZEL RAINS APPELLANT

v.

GINGER GARDNER AND TINA CLARK APPELLEES

DATE OF JUDGMENT: 08/17/95

TRIAL JUDGE: HON. LARRY EUGENE ROBERTS

COURT FROM WHICH APPEALED: WAYNE COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: WAYNE HYNUM

ATTORNEY FOR APPELLEES: ARLO TEMPLE

NATURE OF THE CASE: CIVIL - PERSONAL INJURY

TRIAL COURT DISPOSITION: ACTION DISMISSED FOR FAILURE TO

SERVE PROCESS WITHIN 120 DAYS

DISPOSITION: AFFIRMED IN PART AND REVERSED IN

PART AND REMANDED - 10/7/97

MOTION FOR REHEARING FILED: 4/28/98

CERTIORARI FILED:

MANDATE ISSUED:

ON MOTION FOR REHEARING

EN BANC.

McMILLIN, P.J., FOR THE COURT:

¶1. This matter is before this Court on Ginger Gardner's motion for rehearing. The motion for

rehearing is granted. The original opinion dated October 7, 1997 is withdrawn and this opinion is

substituted in its place.

¶2. This case comes before the Court on appeal from an order entered in the Circuit Court of Wayne

County dismissing Hazel Rains's complaint filed against Ginger Gardner and Tina Clark. We affirm

the decision of the trial court.

¶3. Rains filed a personal injury action against Gardner and Clark, claiming that she fell while on a

commercial parking lot owned by the defendants. Rains alleged that she fell because of a defect in the

lot. She charged that the defendants were negligent in failing to properly maintain their property. At

the time suit was filed -- January 13, 1995 -- Rains's attorney requested that the clerk not issue
process until directed to do so. On June 14, 1995, counsel finally asked that process issue to Gardner

and she was served on June 19. There was never a request for process to issue to Clark.

¶4. Gardner appeared through counsel and moved the trial court to dismiss under Mississippi Rule of

Civil Procedure 4(h). That rule provides that an action may be dismissed on the court's own initiative

or on motion if (a) service is not completed within 120 days after the complaint is filed and (b) the

plaintiff "cannot show good cause why such service was not made within that period . . . ." M.R.C.P.

4(h). Gardner also asserted a statute of limitations defense in her motion. The trial court conducted a

hearing and concluded that Rains had failed to demonstrate good cause for her failure to have

process served on Gardner for a period well in excess of the 120 days set out in the rule. The court,

therefore, dismissed the complaint as to Gardner under Rule 4(h).

¶5. During the course of the hearing on Gardner's motion, counsel for Gardner said, "There are some

differences in the facts which the Court will hear but we ask the Court to dismiss [the complaint] as

to Ms. Clark also under the rule that I read. But it's the Court's duty to do that . . . ." When asked if

he represented Clark, counsel replied, "I'm not representing to the Court that I represent anybody but

Ms. Gardner but Ms. Clark ought to also be dismissed. It's the Court's duty under this rule to do

that." Rains claimed that these statements amounted to a voluntary appearance by Clark, thereby

waiving the requirement of service of process on her. The trial court rejected that argument and

dismissed the complaint as to Clark on its own motion under Rule 4(h).

¶6. Rains claims on appeal that both of these rulings by the trial court were erroneous. For reasons

that we will discuss, we find Rains's argument on both points to be without merit.

A.

A Voluntary Appearance by Clark

¶7. We reject Rains's assertion that the statements by Gardner's counsel concerning the propriety of

dismissing Clark as a defendant represented a voluntary appearance by Clark in the suit. Certainly, a

person may waive process and enter an appearance, and that appearance may be made by an attorney

authorized by the party to do so. However, a disputed assertion that such an event has occurred

raises an issue of fact. The party claiming such an appearance has the burden of proof on the

question. Before Gardner's attorney could have entered an appearance for Clark, it would have been

necessary to establish to the satisfaction of the court that the attorney was, in fact, retained by Clark

and authorized to make an entry of appearance on her behalf. When the matter was inquired into at

the hearing, the attorney unequivocally stated that he did not represent Clark. Rains offered no

evidence to the contrary. Even had Gardner's attorney argued Clark's cause at great length, if he did

so without Clark's authority, his actions could not constitute a voluntary appearance by Clark. In the

absence of even a hint of evidence that this attorney actually represented Clark, we find this argument

by Rains to be singularly without merit.

B.

A General Appearance by Gardner

¶8. Rains argues that Gardner, by filing a motion seeking dismissal of the complaint, made a general
appearance in the case and thereby waived any defects in the process, including its untimeliness under

Rule 4(h). She relies on the case of Hurst v. Southwest Miss. Legal Services Corp., 610 So. 2d 374

(Miss. 1992). In that case, process was attempted on an out-of-state defendant, Hilda Burnett, by

service on the Mississippi Secretary of State under Mississippi's "long-arm" statute. Id. at 387. The

requisite certified mailing from the Secretary of State to the defendant was returned "unclaimed." The

corporate defendant, Burnett's former employer, filed a motion to quash the process on Burnett as

inadequate under the statute. That motion made no mention of Rule 4(h). Burnett filed what she

intended to be a special appearance for the limited purpose of joining in that motion. Id. However,

the supreme court, citing only a 1964 pre-rules case and ignoring the effect of the subsequent

adoption of Mississippi Rule of Procedure 12, held that Burnett's joinder in the motion constituted a

general appearance. Id.

¶9. Although it is not clear in the Hurst decision, it appears that Burnett later sought to argue an

alternate ground for dismissal after she had joined in Southwest's motion. Burnett belatedly asserted

that the trial court should have dismissed her as a defendant under Rule 4(h) since service was not

attempted on her until over three years after the complaint was filed. Id. The supreme court

suggested that dismissal under this alternate ground would have been appropriate but for the fact that

Burnett's earlier general appearance constituted a waiver of "all objections to improper or insufficient

service of process." Id.

¶10. Rains argues that Gardner's motion constituted a general appearance under the Hurst decision,

thereby waiving any defect arising out of the untimeliness of the service of process. The Hurst

decision does not apply to the facts now before us. In Hurst, the party's first appearance in the case,

deemed by the supreme court to be a general appearance, was by a pleading that made no mention of

a Rule 4(h) dismissal. The result in that case, insofar as Rule 4(h) is concerned, arises out of the fact

that Burnett did not assert her right to seek dismissal under that rule at the first opportunity and

thereby waived it. We are not concerned with whether Gardner's motion was a general or special

appearance because, at the time it was made, there is no doubt that she was already subject to the in

personam jurisdiction of the court. A Rule 4(h) dismissal due to the plaintiff's unexplained lack of

diligence in having process served does not void the process ab initio. A Rule 4(h) movant prevails

by defeating the previously-existing jurisdiction of the court rather than by demonstrating that such

jurisdiction never attached.

¶11. Rule 4(h) states on its face that the action may be dismissed as to a defendant "upon the court's

own initiative with notice to such party or upon motion." M.R.E. 4(h) (emphasis supplied). There is

no one with standing to seek dismissal under this rule by motion other than the affected party. The

interpretation of the rule urged by Rains would require us to read the phrase "or upon motion"

entirely out of the rule, and we will not do that.

¶12. As we previously observed, the Hurst decision strongly suggests that, had the defendant in that

case properly raised her Rule 4(h) issue before joining in the motion attacking the process on other

grounds, she would have been entitled to dismissal. Specifically, the court said that "[h]ad Burnett

not made a general appearance, Rule 4(h) would have mandated her dismissal because the Hursts

have shown no good cause for their failure to serve Burnett within 120 days." Id. at 387. Rains's

reliance on Hurst is, thus, misplaced. The case actually lends support to Gardner's position.
¶13. This Court's work is not done, however. We are yet faced with the somewhat different question

of whether Gardner waived her right to seek dismissal under Rule 4(h) by simultaneously asserting a

defense that more directly touches on the merits of the suit. This question remains unanswered,

despite our finding of the inapplicability of Hurst, due to the fact that Gardner elected to combine

two alternate theories of relief in her initial motion.

¶14. The assertion that Rains's claim was barred by the statute of limitations is an affirmative defense.

M.R.C.P. 8(c). It is a defense to the claim itself and necessarily concedes the court's jurisdiction.

Had such a defense been asserted in a separate pleading filed before a motion to dismiss under Rule

4(h) was filed, the Hurst decision would apply and compel a holding that the defendant had waived

her rights under Rule 4(h). This accords with the interpretation given to the parallel federal rule. In

Kersh v. Derozier, the Fifth Circuit held that where a defendant filed an answer to a complaint and

subsequently sought to dismiss under Federal Rule of Civil Procedure 4(j) (which is identical to our

Rule 4(h)) because service had not been accomplished within 120 days, the prior filing of an answer

constituted a waiver of any objection based on the untimeliness of the process. Kersh v. Derozier,

851 F. 2d 1509 (5th Cir. 1988).

¶15. The Hurst decision does not address the question of simultaneously seeking Rule 4(h) dismissal

and asserting another defense that concedes jurisdiction. Neither does the Kersh v. Derozier decision.

However, Mississippi Rule of Civil Procedure 12, dealing generally with the procedure for presenting

defenses and objections to a claim, states that "[n]o defense or objection is waived by being joined

with one or more other defenses or objections in a responsive pleading or motion." M.R.C.P. 12.

We, therefore, hold that the joinder of the statute of limitations defense in the motion to dismiss for

the untimeliness of the process under Rule 4(h) did not constitute a waiver of Gardner's right to

pursue relief under Rule 4(h).

¶16. THE JUDGMENT OF THE WAYNE COUNTY CIRCUIT COURT IS AFFIRMED.

COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

BRIDGES, C.J., KING, PAYNE, AND SOUTHWICK, JJ., CONCUR. THOMAS, P.J.,

DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY COLEMAN, DIAZ AND

HERRING, JJ. HINKEBEIN, J., NOT PARTICIPATING.

THOMAS, P.J., DISSENTING:

¶17. I agree with the majority in affirming the trial court's ruling in dismissing the action as to

defendant Tina Clark. However, I am unable to agree with the majority's decision to affirm the trial

court in dismissing the action as to defendant Ginger Gardner. Therefore, I respectfully dissent from

the majority's opinion finding that Gardner did not make a general appearance making her susceptible

to service of process.

¶18. As stated by the majority, Rains argues that the Mississippi Supreme Court case of Hurst v.

Southwest Miss. Legal Servs. Corp., 610 So. 2d 374 (Miss. 1992), controls the issue at hand. In

Hurst the supreme court held that where one party defendant (Hilda Burnett) joined a second party
defendant's (Southwest's) motion to dismiss Burnett as a party for failure to properly serve process,

Burnett did not enter a special appearance, but actually entered a general appearance waiving all

objections to improper or insufficient service of process. Hurst, 610 So. 2d at 387. Rains argues that

when Gardner filed a motion to dismiss attempting to make a special appearance, she actually filed a

general appearance waiving her objections to insufficient service of process.

¶19. In the Hurst case, the Hursts filed suit against Southwest and attorney Hilda Burnett for legal

negligence and tortuous breach of contract on June 5, 1986. Hurst, 610 So. 2d at 376. Process was

personally served on Southwest on June 16, 1986. Id. at 377. No attempt was made to serve Burnett

until August 15, 1989. Id. at 387. Southwest answered the complaint on July 31, 1986. Id. at 377.

On September 18, 1989, Southwest filed a motion to dismiss Burnett as a party defendant on

grounds of improper service of process, and Burnett joined this motion on September 20. Id. The

trial court refused to grant the motion to dismiss. Id. The trial court granted a motion for summary

judgment favoring Southwest, and the Hursts appealed to the supreme court.

¶20. On appeal, Southwest and Burnett argued that according to the style of Burnett's motion, she

entered only a special appearance, and therefore, did not appear for the purpose of submitting herself

to the general jurisdiction of the court. Hurst, 610 So. 2d at 387. The supreme court stated

"Mississippi does not recognize 'special appearances' except where a party appears solely to object to

the court's jurisdiction over his person on grounds that he is not amenable to process." Id. (citing

Mladinich v. Kohn, 250 Miss. 138, 156, 164 So. 2d 785, 791 (1964)). The court found that Burnett's

appearance "d[id] not fit that category," and that by appearing on September 20, 1989, Burnett

subjected herself to the jurisdiction of the circuit court by entering a general appearance and,

therefore, she waved all objections to improper or insufficient service of process. Hurst, 610 So. 2d

at 387.

¶21. The majority suggests that Burnett filed an earlier general appearance before joining in

Southwest's motion. However, there is no evidence in the Hurst decision to suggest that this was the

case. To the contrary, the supreme court stated that "[b]y appearing on September 20, 1989, Burnett

subjected herself to the jurisdiction of the Pike County Circuit Court and waived all objections to

improper or insufficient service of process." Id. September 20, 1989, was the date in which Burnett

joined Southwest's motion to dismiss. The supreme court stated that when Burnett joined the motion

to dismiss on September 20, 1989, she made a general appearance and subjected herself to the

jurisdiction of the circuit court. There exists no other evidence in the Hurst decision to suggest

differently, contrary to the majority's assertion. As evidence of this, I will quote extensively the

relevant portions of the Hurst opinion:

WHETHER THE TRIAL COURT ERRED IN REFUSING TO DISMISS HILDA BURNETT

AS A PARTY DEFENDANT?

Burnett no longer lived in Mississippi when plaintiffs filed their suit in June of 1986. For

undisclosed reasons, the Hursts did not attempt to serve Burnett until August 15, 1989, at

which time they served the Secretary of State. Sometime prior to September 12, 1989, a

certified letter from the Secretary of State to Hilda Burnett was returned bearing the postal

notation "unclaimed." Southwest filed a motion on September 18, 1989, to dismiss Hilda

Burnett as a party defendant for failure of the plaintiffs to properly serve Burnett with process.
The motion also requested the court to quash the Secretary of State's attempted service of

process. On September 20, Burnett filed a document styled:

JOINDER BY HILDA BURNETT, SPECIALLY APPEARING AND WITHOUT WAIVING

ANY OF HER RIGHTS, IN THE MOTION TO DISMISS HILDA BURNETT AS A

PARTY-DEFENDANT FILED BY DEFENDANT SOUTHWEST MISSISSIPPI LEGAL

SERVICES [sic]

The trial court entered an order quashing the Hurst's attempted service of process on Burnett

but did not grant the defendants' motion to dismiss Burnett as a party defendant. The case

proceeded to trial in the October term of court with Burnett still named as a party defendant.

Southwest and Burnett insist that according to the style of Burnett's motion, she entered only a

special appearance and did not appear for purposes of submitting herself to the general

jurisdiction of the court. However, Mississippi does not recognize "special appearances" except

where a party appears solely to object to the court's jurisdiction over his person on grounds that

he is not amenable to process. Mladinich v. Kohn, 250 Miss. 138, 156, 164 So. 2d 785, 791

(1964). Burnett's appearance does not fit that category. The trial court, therefore, properly

deemed her to have appeared generally for all purposes.

Southwest and Burnett argue that the trial court should have dismissed Burnett pursuant to

MRCP Rule 4(h) despite any appearance she may have made. Rule 4(h) provides the following:

Time limits of service. 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 parties 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.

Had Burnett not made a general appearance, Rule 4(h) would have mandated her dismissal

because the Hursts have shown no good cause for their failure to serve Burnett within 120

days. One waives process and service, however, upon making a general appearance. . . . By

appearing on September 20, 1989, Burnett subjected herself to the jurisdiction of the Pike

County Circuit Court and waived all objections to improper or insufficient service of process.

Hurst, 610 So. 2d at 387.

¶22. The majority suggests that it would be "nonsensical" to suggest that by asserting a right under

the rules, the affected party would be penalized by waiving that right. However, I am unable to

distinguish the case at bar from the Hurst decision, and I assert that we are, accordingly, like it or

not, bound by the Hurst decision. The Hurst court found that a general appearance had been made

when one party specially appeared to contest the court's jurisdiction over that party. Hurst, 610 So.

2d at 387. Based on the ruling of the Hurst court, when Gardner filed her motion to dismiss, she

made a general appearance making herself susceptible to the jurisdiction of the Wayne County Circuit

Court. The Mississippi Supreme Court has stated that process and service of process are waived

upon making a general appearance. Id. (citing Arrow Food Distribs., Inc. v. Love, 361 So. 2d 324

(Miss. 1978); Sandifer v. Sandifer, 237 Miss. 464, 115 So. 2d 46 (1959)). Therefore, I would hold
that the trial court erred by not finding that Gardner made a general appearance when she filed her

motion to dismiss, and I would reverse the trial court's ruling and remand for trial.

COLEMAN, DIAZ, AND HERRING, JJ., JOIN THIS SEPARATE WRITTEN OPINION.