195 So. 3d 217
Miss. Ct. App.2016Background
- Rogers Oil sued S & M Trucking, LLC in Marion County circuit court for an unpaid account balance and attorney’s fees; service on the registered agent and members was unsuccessful.
- Process server proofs showed unsuccessful attempts; Rogers Oil then hired a private investigator whose affidavit was conclusory and an invoice (unverified) showed limited visits and phone calls.
- After purported failure to serve the LLC’s members (Michael and Stephanie Lee), Rogers Oil served process via the Mississippi Secretary of State under Miss. Code Ann. § 79-35-13(b); the certified mailing was returned unclaimed.
- Rogers Oil obtained a default judgment; later it located and served Stephanie Lee to compel a judgment-debtor exam, and S & M’s counsel entered an appearance.
- S & M moved under Rule 60(b)(4) to set aside the default judgment as void for improper service (and also challenged venue); the trial court denied relief.
- The Court of Appeals reversed, holding Rogers Oil failed to show it exercised "reasonable diligence" before resorting to service via the Secretary of State, so the default judgment was void and must be set aside.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was service via the Secretary of State under § 79-35-13(b) proper? | Rogers Oil: yes; it attempted personal service and then used the Secretary of State when service on the LLC’s governors failed. | S & M: no; Rogers Oil did not show "reasonable diligence" serving the Lees and never tried first-class mail. | Service was improper; Rogers Oil failed to prove reasonable diligence, so service under § 79-35-13(b) was not authorized. |
| Is a default judgment void for lack of proper service? | Rogers Oil: judgment valid; service was proper. | S & M: judgment void because lack of proper service deprives court of personal jurisdiction. | A default judgment entered without proper service is void; court must set it aside. |
| Was S & M’s Rule 60(b)(4) motion untimely or waived by appearance/participation? | Rogers Oil: S & M waived defects by entering appearance and participating in judgment-debtor exam; motion untimely. | S & M: Rule 60(b)(4) has no time limit for void judgments; participation did not waive jurisdictional objection. | No waiver or timeliness bar: objections to void judgments have no effective time limit; entry of appearance and limited participation did not waive the jurisdictional challenge. |
| Was there sufficient evidence of attempted service (reasonable diligence)? | Rogers Oil: investigator affidavit and invoice show attempts to locate and serve the Lees. | S & M: investigator affidavit and invoice are conclusory/unverified; no mail attempt; later easy personal service undermines claim of evasion. | Evidence was insufficient and largely conclusory; Rogers Oil did not show reasonable diligence (e.g., no first-class mail attempt), so substitution of service was premature. |
Key Cases Cited
- Evans v. Oberon Holding Corp., 729 So.2d 825 (Miss. Ct. App. 1998) (default judgment void for lack of proper service requires setting aside under Rule 60(b)).
- McCain v. Dauzat, 791 So.2d 839 (Miss. 2001) (trial court lacks discretion to leave in place a void default judgment).
- BB Buggies Inc. v. Leon, 150 So.3d 90 (Miss. 2014) (sufficiency of service is a jurisdictional question reviewed de novo).
- Overbey v. Murray, 569 So.2d 303 (Miss. 1990) (Rule 60(b)(4) relief for void judgments is not subject to the six-month time limit).
- O'Neal v. O'Neal, 17 So.3d 572 (Miss. 2009) (no time or delay can cure a void judgment).
- Kirk v. Pope, 973 So.2d 981 (Miss. 2007) (discussing timing and vacatur of 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 based on service).
- Burleson v. Lathem, 968 So.2d 930 (Miss. 2007) (defendant must raise jurisdictional defects at first defensive opportunity or risk waiver).