S&M Trucking, LLC v. Rogers Oil Company of Columbia, Inc.
195 So. 3d 217
| Miss. Ct. App. | 2016Background
- Rogers Oil sued S&M Trucking (an LLC owned by Michael and Stephanie Lee) in Marion County for an unpaid fuel account and attorney’s fees; complaint alleged S&M’s principal place of business at the Lees’ Longwood Place address.
- Process server made multiple attempts (proofs show unsuccessful service; one form noted a different occupant). A private investigator submitted a conclusory affidavit and an unverified invoice describing several visits and phone attempts.
- After the court-ordered extension, Rogers Oil served process on the Mississippi Secretary of State under Miss. Code Ann. § 79-35-13(b); the Secretary of State mailed the papers by certified mail but the return receipt was unclaimed.
- Rogers Oil obtained a default judgment; later it sought a judgment-debtor exam and personally served Stephanie Lee; S&M’s counsel then entered an appearance and participated in the exam.
- S&M moved under Rule 60(b)(4) to set aside the default judgment as void for lack of proper service (and alternatively raised venue). The trial court denied the motion; S&M appealed.
Issues
| Issue | Plaintiff's Argument (Rogers Oil) | Defendant's Argument (S&M) | Held |
|---|---|---|---|
| Whether service on S&M via the Secretary of State per § 79-35-13(b) was proper (i.e., Rogers Oil exercised "reasonable diligence" to serve the Lees first) | Rogers Oil: attempted personal service multiple times and used a private investigator; service on Secretary of State was authorized when personal service failed | S&M: Rogers Oil did not show reasonable diligence (efforts were conclusory, no first-class mail attempt under Rule 4), and evidence was insufficient | Court: Service via Secretary of State was improper because Rogers Oil failed to prove reasonable diligence; default judgment is void |
| Whether S&M waived insufficiency-of-service objections by counsel’s appearance and participation in judgment-debtor proceedings | Rogers Oil: S&M entered appearance and participated in the exam before moving to set aside, so it waived service objections | S&M: Entry of appearance and participation in collection proceedings did not waive jurisdictional challenge; it raised insufficiency at the first defensive opportunity | Court: No waiver; entry of appearance is not conclusive waiver, and participating in a judgment-debtor exam (collection proceeding) did not constitute defending merits; timely Rule 60(b)(4) challenge preserved right |
| Whether the Rule 60(b) motion was untimely | Rogers Oil: S&M’s motion was filed months after judgment and thus untimely | S&M: Motion invoked § (4) to void a judgment for lack of jurisdiction, which has no effective time limit | Court: Rule 60(b)(4) has no time limit for relief from a void judgment; timing argument rejected |
Key Cases Cited
- Evans v. Oberon Holding Corp., 729 So. 2d 825 (Miss. Ct. App. 1998) (default judgment void where lack of proper service deprives court of jurisdiction)
- McCain v. Dauzat, 791 So. 2d 839 (Miss. 2001) (trial court must set aside void default judgments)
- BB Buggies Inc. v. Leon, 150 So. 3d 90 (Miss. 2014) (sufficiency of service reviewed de novo)
- Sartain v. White, 588 So. 2d 204 (Miss. 1991) (standards for Rule 60(b) relief)
- Overbey v. Murray, 569 So. 2d 303 (Miss. 1990) (Rule 60(b)(4) relief for void judgments not confined to six‑month rule)
- O'Neal v. O'Neal, 17 So. 3d 572 (Miss. 2009) (no time limitation where judgment is void)
- Kirk v. Pope, 973 So. 2d 981 (Miss. 2007) (void judgments cannot be cured by delay)
- Ravenstein v. Ravenstein, 167 So. 3d 210 (Miss. 2014) (reiterating no effective time limit to attack void judgments)
- Schustz v. Buccaneer Inc., 850 So. 2d 209 (Miss. Ct. App. 2003) (appearance does not automatically waive later challenge to in personam jurisdiction)
- Rains v. Gardner, 731 So. 2d 1192 (Miss. 1999) (jurisdictional defenses and appearance waiver principles)
- Burleson v. Lathem, 968 So. 2d 930 (Miss. 2007) (first defensive move must put plaintiff on notice to preserve challenge to service)
- Young v. Huron Smith Oil Co., 564 So. 2d 36 (Miss. 1990) (failure to raise jurisdictional defects at first opportunity may constitute waiver)