Harold Arrington v. Justin Anderson

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2021-CA-00233-COA

HAROLD ARRINGTON APPELLANT

v.

JUSTIN ANDERSON APPELLEE

DATE OF JUDGMENT: 11/10/2020
TRIAL JUDGE: HON. KELLY LEE MIMS
COURT FROM WHICH APPEALED: LEE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: ANNA MARIE CHANDLER
ATTORNEYS FOR APPELLEE: JASON RANDOLPH HOLLINGSWORTH
GOODLOE TANKERSLEY LEWIS
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED - 10/11/2022
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE CARLTON, P.J., WESTBROOKS AND SMITH, JJ.

CARLTON, P.J., FOR THE COURT:

¶1. Harold Arrington filed two identical negligence claims against Justin Anderson in the

County Court of Lee County. In response to the complaints, Anderson filed motions for

summary judgment. After a hearing, the county court treated the motions for summary

judgment as motions to dismiss, and the county court granted the motions.

¶2. Arrington appealed to the Lee County Circuit Court. On appeal, the circuit court

entered an order affirming the county court’s orders. Arrington now appeals.

¶3. After our review, we find no error. We accordingly affirm the circuit court’s

judgment.

FACTS
¶4. On February 6, 2015, Arrington and Anderson were in an automobile accident. On

February 5, 2018, one day before the three-year statutory limitations period for negligence

claims expired,1 Arrington filed a complaint (“Suit One”) against Anderson and Allstate

Insurance Company, Arrington’s insurance company, asserting negligence and seeking

damages for injuries that Arrington claimed resulted from the automobile accident.2

¶5. A summons for Suit One was issued on June 4, 2018—119 days after Arrington filed

the complaint. See M.R.C.P. 4(h) (requiring service of summons and complaint be made

within 120 days of filing the complaint). On June 5, 2018, Arrington filed a motion seeking

an extension of time to serve Anderson with process. That same day, Arrington also filed

a new, identical complaint (“Suit Two”) against Anderson.

¶6. On June 6, 2018, the county court granted Arrington’s motion seeking an extension

of time to serve process in Suit One. On October 3, 2018, Arrington served Anderson with

the summons and complaint in Suit One. The parties dispute the exact date of service in Suit

Two, but the record reflects that at some point in early October 2018, Anderson was served

in Suit Two.3

¶7. On October 22, 2018, Anderson filed a motion to dismiss Suit Two for being filed

1
Miss. Code Ann. § 15-1-49(1) (Rev. 2019).
2
The record reflects that Allstate Insurance Company was never served with process
in this case, and it is not a party to this appeal.
3
Anderson’s affidavit in the record reflects that he was served with the summons and
complaint in Suit Two on October 5, 2018. However, Arrington maintained that he served
Anderson on October 1, 2018.

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outside the statute of limitations and for violating the laws prohibiting claim-splitting. On

November 8, 2019, Anderson filed a motion for summary judgment seeking dismissal of Suit

One for insufficient process or service of process and seeking dismissal of Suit Two as both

time-barred and prohibitive claim-splitting. Anderson filed two separate summary judgment

motions—one for each suit—but the motions were identical.

¶8. On January 13, 2020, the county court judge held a hearing on Anderson’s motions.

At the hearing, Anderson clarified that his motion for summary judgment was actually a

motion to dismiss. Regarding Suit One, Anderson maintained that no summons was issued

to him. Anderson explained that the summons in Suit One was actually issued for Allstate

Insurance Company, but the name Allstate Insurance Company was “whited out” with liquid

paper and had “Justin Anderson” handwritten on the summons in its place.

¶9. The county court judge examined the summons at issue and stated it appeared that the

summons was issued to Allstate Insurance Company and that the name “Allstate Insurance

Company” was then whited out with liquid paper and had Anderson’s name written over it.

To determine whether the summons in Suit One was altered before or after it was issued by

the county court clerk, the county court judge heard testimony from the court clerk who

issued the summons in Suit One. The clerk testified that she executed the summons in Suit

One but that she did not “white-out” Allstate Insurance Company and write Anderson’s name

over it. The clerk stated that if she or someone in the clerk’s office had made the alteration,

it would have been copied as such in the court file. The clerk explained that when her office

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issues a summons, she keeps a copy, and if she had already copied the summons before the

party requested an alteration, then she would alter both the original and the copy. The judge

found that the issued summons in the court file did not reflect any alteration.

¶10. The judge also heard testimony from the process server who served Anderson with

the summons and complaint in Suit One. The process server testified that his wife had

presented the summons to the clerk to be issued and that he was “fairly positive” the

alteration was in his wife’s handwriting. The process server also stated that he “believe[d]”

the alteration was made before the summons was issued.

¶11. After a discussion between the attorneys, the court clerk, and the county court judge’s

staff attorney, the judge determined that the summons served on Anderson in Suit One was

not actually issued by the county court clerk. The judge then asked, “Does anybody have any

different understanding of that?” Arrington’s counsel answered, “No different

understanding.” The judge explained that at some point after the summons to Allstate

Insurance Company was issued in Suit One, someone put liquid paper over the name

“Allstate Insurance Company” and handwrote “Justin Anderson” over it to make it a

summons to Anderson. The judge ruled that because the summons was altered after it left

the clerk’s office, it did not constitute a valid summons.

¶12. The judge held that because Anderson was served with the summons issued for

Allstate Insurance Company, instead of Anderson, there was no valid service of process on

Anderson in Suit One. The judge explained that he was treating the motion for summary

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judgment as one to dismiss, regardless of its caption, and the county court ultimately

dismissed Suit One for insufficient process and service and as being barred by the statute of

limitations.

¶13. As for Suit Two, Anderson argued that it was filed outside of the statute of limitations.

Anderson further asserted that no summons was issued for Suit Two and that no return of

service for a summons in Suit Two existed. After hearing arguments, the county court judge

agreed that the statutory limitations period had run prior to the filing of Suit Two. The

county court dismissed Suit Two as time-barred and as prohibitive claim-splitting.

¶14. On February 10, 2020, the county court entered an order styled as one granting

summary judgment and also as an order of dismissal. In the order, the county court dismissed

Suit One for insufficiency of process, insufficiency of service of process, and the expiration

of time in the statute of limitations. On February 12, 2020, the county court entered an order

styled as one granting summary judgment and as an order of dismissal, and the county court

dismissed Suit Two as time-barred.4 The county court dismissed both suits with prejudice.

¶15. Arrington filed motions for reconsideration, which the county court denied. Arrington

then appealed to the circuit court, asserting the following issues: (1) whether the county court

erred in determining a material fact while considering a motion for summary judgment and

(2) whether the county court erred in dismissing Suit Two. On appeal, the circuit court

consolidated the cases.

4
See infra note 8.

5
¶16. On November 10, 2020, the circuit court entered an order affirming the county court’s

orders. Arrington now appeals.

STANDARD OF REVIEW

¶17. “When the county court sits as the fact-finder, the circuit court and this Court, as

appellate courts, ‘are bound by the judgment of the county court if supported by substantial

evidence and not manifestly wrong.’” Williams v. Carriere, 324 So. 3d 354, 360 (¶14) (Miss.

Ct. App. 2021) (quoting Turnage v. Brooks, 301 So. 3d 760, 763 (¶9) (Miss. Ct. App.

2020)).5

DISCUSSION

I. Suit One

¶18. On appeal, Arrington argues that the county court erred by determining an issue of

material fact while considering Anderson’s motion for summary judgment regarding Suit

One. Specifically, Arrington asserts that the county court improperly made a determination

5
Arrington argues that because Anderson filed the motion as one for summary
judgment, then the summary judgment standard must apply: “The evidence must be viewed
in the light most favorable to the party against whom the motion has been made.”
Duckworth v. Warren, 10 So. 3d 433, 436-37 (¶9) (Miss. 2009). Arrington therefore asserts
that the circuit court erred in reviewing his appeal on the record, rather than de novo.
However, as clarified by the circuit court in its order affirming the county court, Arrington
confuses “de novo review” and “trial de novo.” Uniform Civil Rule of Circuit and County
Court Practice 5.01 provides that “[e]xcept for cases appealed directly from justice court or
municipal court, all cases appealed to circuit court shall be on the record and not a trial de
novo.” UCRCCC 5.01. Arrington’s appeal to the circuit court was based on the record and
not a trial de novo, and in reviewing the case, the circuit court correctly applied a de novo
standard.

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as to whether the summons in Suit One was altered before or after it was issued by the county

court clerk. Arrington maintains that issues of contested fact may not be determined by

summary judgment.

¶19. In his motion for summary judgment, Anderson argued that Suit One should be

dismissed on the grounds that Arrington failed to issue a sufficient summons to Anderson,

and therefore service was insufficient. Anderson explained that the summons issued for Suit

One was issued to Allstate Insurance Company, not Anderson. Anderson also asserted that

on the original summons and complaint served upon Anderson, “Allstate Insurance

Company” had been whited out with liquid paper and replaced with “Justin Anderson.”

¶20. Rule 4 of the Mississippi Rules of Civil Procedure governs the issuance and form of

summonses to be served upon defendants. The requirements in Rule 4(b) mandate that the

summons “be directed to the defendant” and state “the name and address of the party to be

served.” M.R.C.P. 4(b). Anderson claimed that Arrington served him with a summons that

was issued to Allstate Insurance Company, and the proper vehicle for challenging sufficiency

of process is a motion to dismiss under Rule 12(b)(4). See generally Thornton v. Freeman,

242 So. 3d 188, 190 (¶4) (Miss. Ct. App. 2018). The Mississippi Supreme Court has

clarified that

[i]f the matter concerns the content of the summons, the motion should be
made under Rule 12(b)(4). By contrast, a motion under Rule 12(b)(5) is the
correct procedural vehicle for challenging the mode of delivery or lack of
delivery of the summons and complaint. When the defect consists of a
misnamed defendant a challenge may be brought under either Rule 12(b)(4),
since the summons contains an improper name, or under Rule 12(b)(5) if the

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wrong party, someone not named in the summons, is served. Some courts will
treat this problem under both Rules 12(b)(4) and (5).

Pub. Emps.’ Ret. Sys. of Miss. v. Dillon, 538 So. 2d 327, 328 n.1 (Miss. 1988) (citations

omitted).

¶21. During the hearing on his motions, Anderson clarified that his motion regarding Suit

One was actually a motion to dismiss pursuant to Rule 12(b)(4), which governs sufficiency

of process, rather than a motion for summary judgment. The county court judge confirmed

that he considered Anderson’s motion to be a motion to dismiss under Rule 12(b)(4), rather

than a motion for summary judgment. The transcript reflects no objection by Arrington’s

counsel.

¶22. Upon our review, we find that the county court did not err in treating Anderson’s

motion for summary judgment as a motion to dismiss. Anderson’s motion clearly stated that

he was seeking dismissal of Arrington’s complaint in Suit One due to insufficient process.

Anderson also specified the facts surrounding his claim of insufficient process. At the

county court hearing, Arrington did not object to the motion being treated as one to dismiss.

¶23. We further find that the county court did not err in dismissing Suit One due to

insufficient process. This Court has stated that when faced with issues regarding sufficiency

of process, the trial-level court should hold a preliminary hearing, at which the trial-level

court is “free to make its own findings of fact, even if the facts [are] contested.” Thornton,

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242 So. 3d at 190 (¶4) (Miss. Ct. App. 2018) (citing M.R.C.P. 12(d);6 Johnson v. Rao, 952

So. 2d 151, 154 (¶9) (Miss. 2007); 5B Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 1353, at 340). At the hearing, the county court heard arguments

from both parties, as well as testimony from the clerk who issued the summons and the

process server. The county court ultimately determined that the summons issued for Suit One

and served on Anderson was not “directed to the defendant,” as required by Rule 4. We

therefore find that the county court’s decision is supported by substantial evidence in the

record.

¶24. Although a dismissal under Rule 12(b)(4) should be entered without prejudice, the

county court dismissed the complaint in Suit One with prejudice. See Thornton, 242 So. 3d

at 191 (¶6). However, as in Thornton, “we do not see this issue as an impediment” to

affirming the dismissal in Suit One because the county court “did not grant the [dismissal]

based on the insufficiency of process alone[.]” Id. The record reflects that in addition to

insufficient process, the county court also found that the statute of limitations had run on the

negligence cause of action. See id. The county court explained that Arrington did not serve

Anderson with a sufficient summons within the time frame allowed by the order granting the

motion to extend, and Arrington failed to request additional time to serve Anderson. See

Heard v. Remy, 937 So. 2d 939, 944 (¶23) (Miss. 2006) (affirming order of dismissal in

6
Rule 12(d) states that issues regarding sufficiency of process “shall be heard and
determined before trial on application of any party, unless the court orders that the hearing
and determination thereof be deferred until the trial.” M.R.C.P. 12(d).

9
similar context). We therefore find no error in the county court’s dismissal with prejudice

as to Suit One.7

II. Suit Two

¶25. Arrington argues that the county court erred in finding that the complaint in Suit Two

was barred by the statute of limitations.8 Arrington claims that he filed Suit Two prior to the

expiration of the 120-day tolling period provided by Suit One.

¶26. As stated, Arrington and Anderson were in an automobile accident on February 6,

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In his appellate brief, Arrington claims that Anderson failed to timely answer or
respond to the complaint in Suit One. Arrington explains that he served Anderson with
process on October 3, 2018, but Anderson took no action in response to the summons until
more than a year later, when Anderson filed his motion for summary judgment.
Mississippi Rule of Civil Procedure 12(a) provides that within thirty days of the
service of the summons and complaint, the defendant must serve either an answer or a
motion under Rule 12(b). The record shows that Anderson was served in Suit One on
October 3, 2018. Anderson did not file an answer, but he instead filed a motion for
summary judgment on November 8, 2019. Mississippi Rule of Civil Procedure 56(b)
provides that “[a] party against whom a claim, counter-claim, or cross-claim is asserted or
a declaratory judgment is sought may, at any time, move with or without supporting
affidavits for a summary judgment in his favor as to all or any part thereof.” M.R.C.P.
56(b). In his response to Anderson’s motion for summary judgment, Arrington did not raise
any issues regarding the timeliness of Anderson’s motion. At the county court hearing,
Arrington asserted that Anderson failed to file an answer or any response other than the
motion for summary judgment. Arrington argued that because Anderson was timely served
and failed to respond, Arrington should be allowed to proceed to trial on Suit One.
However, the record reflects no attempt by Arrington to obtain an entry of default against
Anderson pursuant to Mississippi Rule of Civil Procedure 55. Furthermore, we find that
because service was insufficient, this issue is moot.
8
Arrington does not raise any argument with regard to the issue of claim-splitting in
Suit Two. Although the transcript from the hearing reflects that the county court judge
stated he was dismissing Suit Two as barred by the statute of limitations and as prohibitive
claim-splitting, the order of dismissal reflects that Suit Two was dismissed based on the
expiration of the statute of limitations.

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2015. Arrington filed his complaint in Suit One on February 5, 2018, one day before the

three-year limitations period for negligence claims. See Miss. Code Ann. § 15-1-49(1).

Pursuant to Rule 4(h),

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.

M.R.C.P. 4(h). A summons for Suit One was issued on June 4, 2018—119 days after

Arrington filed the complaint. On June 5, 2018, Arrington filed a motion seeking an

extension of time to serve Anderson with process, which the county court granted. That

same day, Arrington filed Suit Two against Anderson. The record shows that the complaint

in Suit Two was identical to the complaint in Suit One. Arrington asserts that he filed Suit

Two because he had trouble finding Anderson to serve him, and he was concerned that he

might not be able to serve Anderson with process prior to the running of the 120 days

provided by Rule 4(h) and the court’s extension. Arrington argues that because he filed Suit

Two within the 120-day tolling period provided by Suit One, his complaint in Suit Two was

timely.

¶27. We recognize that “[t]he filing of an action tolls the statute of limitations until the

expiration of the 120-day service period.” Watters v. Stripling, 675 So. 2d 1242, 1244 (Miss.

1996). “In the event process is not served during the 120 day service period, the statute

begins to run again.” Triple C Transp. Inc. v. Dickens, 870 So. 2d 1195, 1199-1200 (¶34)

11
(Miss. 2004) (citing Holmes v. Coast Transit Auth., 815 So. 2d 1183, 1185 (¶7) (Miss.

2002)). “In order to toll the statute of limitations beyond 120 days, the plaintiff must seek

an enlargement of the Rule 4(h) deadline under Mississippi Rule of Civil Procedure 6 or

dismiss the suit and refile it.” Est. of Puckett v. Clement, 238 So. 3d 1139, 1147 (¶22) (Miss.

2018) (emphasis added) (citing Triple C Transp., 870 So. 2d at 1200 (¶34)). “[O]therwise,

dismissal is proper.” Triple C Transp., 870 So. 2d at 1200 (¶34); accord M.R.C.P. 4(h).

¶28. Arrington cites Triple C and argues that he did refile the complaint in this case.

However, as the circuit court explained in its November 10, 2020 order, Arrington did not

dismiss Suit One and refile it; instead, he filed Suit Two while Suit One was still pending.

This Court has held that “[f]iling a new complaint while a motion is pending in the first

matter is not an option, as the second complaint would be dismissed based on the principle

of priority jurisdiction.” Sweet Valley Missionary Baptist Church v. Alfa Ins. Corp., 124 So.

3d 683, 687 (¶15) (Miss. Ct. App. 2013). Furthermore, “allowing a plaintiff to file a second

or subsequent complaint while a previously filed complaint is still pending in the same cause

of action would extend the statute of limitations ad infinitum.” Parmley v. Pringle, 976 So.

2d 422, 425 (¶11) (Miss. Ct. App. 2008). We therefore find that the county court did not err

in dismissing Suit Two.

CONCLUSION

¶29. After our review, we find no error, and we affirm the circuit court’s judgment.

¶30. AFFIRMED.

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BARNES, C.J., GREENLEE, WESTBROOKS, LAWRENCE, McCARTY,
SMITH AND EMFINGER, JJ., CONCUR. WILSON, P.J., AND McDONALD, J.,
CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

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