                       IN THE SUPREME COURT OF MISSISSIPPI

                                  NO. 2002-CT-01338-SCT

JACKIE OWENS, INDIVIDUALLY AND ON
BEHALF OF ALL OTHER DEATH BENEFICIARIES
OF TERRY OWENS

v.

PAUL MAI d/b/a CRYSTAL SPRINGS MOBILE
HOME PARKS


                                ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                          6/14/2002
TRIAL JUDGE:                               HON. LAMAR PICKARD
COURT FROM WHICH APPEALED:                 COPIAH COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   JOYCE W.C.N. FUNCHES
                                           MICHAEL S. ALLRED
                                           OTTOWA E. CARTER, JR.
ATTORNEY FOR APPELLEE:                     WILLIAM E. READY, JR.
NATURE OF THE CASE:                        CIVIL - WRONGFUL DEATH
DISPOSITION:                               THE JUDGMENT OF THE COURT OF
                                           APPEALS IS REVERSED, AND THE
                                           JUDGMENT OF THE CIRCUIT COURT OF
                                           COPIAH COUNTY IS AFFIRMED - 01/13/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       GRAVES, JUSTICE, FOR THE COURT:

¶1.    This appeal stems from a wrongful death suit brought by Jackie Owens, a mobile home

resident, against Paul Mai, the mobile home park owner. The trial court dismissed the suit for

defective service of process pursuant to Rule 4(h) of the Mississippi Rules of Civil Procedure.
Prior to dismissal of the first action, Owens filed an identical second action which was

dismissed by the trial court on the grounds that the statute of limitations had expired.       Owens

appealed the trial court’s ruling. The Court of Appeals reversed the trial court and held that the

dismissal of the first action for lack of personal jurisdiction due to defective service fell

within the purview of the savings statute, Miss. Code Ann. § 15-1-69 (Rev. 2003). Owens v.

Mai, 881 So.2d 278, 281 (Miss. Ct. App. 2003). Thus, the Court of Appeals held that the

dismissal of the second suit was improper. Id.

¶2.     This Court granted certiorari. Owens v. Mai, 878 So.2d 66 (Miss. 2004). It appears

that the Court of Appeals held that a dismissal for failure to serve process preserves the action

under the saving statute.        However, the Court of Appeals did not address an important,

determining issue.      The statute of limitations had expired prior to the first action being

dismissed for failure to serve process.         So, when the plaintiff filed her second complaint, the

trial court properly dismissed it as time-barred. Our precedent case law holds that the savings

statute cannot save an action from the expiration of the statute of limitations.

¶3.     We find that since the statute of limitations for the plaintiff’s action had expired prior

to the filing of her second complaint, the trial court did not err in dismissing the action.

                               FACTS AND PROCEDURAL HISTORY

¶4.     In November of 1996, Terry Owens was stabbed and killed on the premises of Crystal

Springs Mobile Home Park, where he was a resident, by Mark Tappen who had been hired to

provide security in the mobile home park. The Crystal Springs Mobile Home Park was owned

and operated by Paul Mai.




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¶5.     In November of 1997, Jackie Owens, Terry’s wife, filed a wrongful death action against

Mai for negligent employment and supervision, among other claims (hereinafter “Crystal

               1
Springs I”).       Owens attempted to serve Mai on March 10, 1998, by leaving a copy of the

summons and complaint with Mai’s wife at their usual place of residence.                   Mai does not

appear to dispute that a copy of the summons was left with his wife; however, he asserts that

he never received a copy of the summons by mail, as is required by Rule 4(d)(1)(B) of the

Mississippi Rules of Civil Procedure.

¶6.     Three years later, in May 2001, Mai moved for dismissal based upon the service defect,

and   the   trial court granted his motion.              Subsequently, Owens filed a motion for

reconsideration, and while that motion was pending, Owens filed a second complaint for

wrongful death on November 2, 2001 (hereinafter “Crystal Springs II”). Owens’s motion for

reconsideration in Crystal Springs I was denied.

¶7.     Mai filed a motion that Crystal Springs II be dismissed on the grounds that the statute

of limitations had expired.2 Owens asserted that the action was saved by the “savings statute,”

Miss. Code Ann. § 15-1-69 (Rev. 2003). The trial court disagreed, finding that the dismissal

for failure to serve process was not a “matter of form” as contemplated by the savings statute.




        1
         In Crystal Springs I, the plaintiff also alleged a number of intentional torts, including assault
and battery. Pursuant to Miss. Code Ann. § 15-1-35 (Rev. 2003), the statute of limitations for these
causes of actions is one (1) year from the date such action accrues.
        2
           The plaintiff’s claim for wrongful death was based upon a negligence theory. Thus, pursuant
to Miss. Code Ann. § 15-1-49 (Rev. 2003), a negligence cause of action has a three (3) year statute
of limitations.

                                                     3
¶8.     Owens timely appealed, and the Court of Appeals reversed the trial court, finding that

the dismissal of a case for failure to serve process is in effect dismissal for failure to establish

“jurisdiction,” and that failure to establish jurisdiction is considered a “matter of form” as

contemplated by Miss. Code Ann. § 15-1-69. Therefore, the Court of Appeals held that the

dismissal of the Crystal Springs II was improper.

¶9.     Mai filed a petition for writ of certiorari in which he raised one issue: whether failure

to serve a defendant within 120 days as required by Rule 4(h) of the Mississippi Rules of Civil

Procedure is a “matter of form” as contemplated by Miss. Code Ann. § 15-1-69. On July 29,

2004, this Court granted Mai’s petition.

                                             ANALYSIS

        I.      Whether MCA §15-1-69 applies              in   cases   which    are
                dismissed for failure to serve process.

¶10.    The Court of Appeals found that the savings statute applies when a case is dismissed for

failure to serve process because the ultimate point is one of jurisdiction, and that lack of

jurisdiction is a “matter of form” for purposes of the savings statutes. See Owens v. Mai, 881

So.2d at 281.

¶11.    Miss. Code Ann. § 15-1-69 provides:

        If in any action, duly commenced within the time allowed, the writ shall be
        abated, or the action otherwise avoided or defeated, by the death of any party
        thereto, or for any matter of form, or if, after verdict for the plaintiff, the
        judgment shall be arrested, or if a judgment for the plaintiff shall be reversed on
        appeal, the plaintiff may commence a new action for the same cause, at any time
        within one year after the abatement or other determination of the original suit,
        or after reversal of the judgment therein, and his executor or administrator may,
        in case of the plaintiff’s death, commence such new action, within the said one
        year.



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(Emphasis added).

¶12.    This Court has held that dismissal for lack of jurisdiction is a dismissal for matter of

form, within the purview of § 15-1-69.        Ryan v. Wardlaw, 382 So.2d 1078, 1079-80 (Miss.

1980); Frederick Smith Enterprise Co. v. Lucas, 204 Miss. 43, 36 So.2d 812, 814 (1948);

Hawkins v. Scottish Union & Nat’l Ins. Co., 110 Miss. 23, 29, 69 So. 710, 712 (1915). These

cases have all addressed subject matter jurisdiction rather than personal jurisdiction.     In the

present case, the Court of Appeals noted that both subject matter jurisdiction and personal

jurisdiction are necessary before a court may validly try and adjudicate a case, and that dicta

in Hawkins v. Scottish Union & Nat’l Ins. Co., suggests that including personal jurisdiction

as a “matter of form” under § 15-1-69 is proper.         We decline to establish the dicta from

Hawkins as a principle of law.

¶13.    We hold today that dismissal of a suit for failure to serve process is not a jurisdictional

matter for purposes of the savings statute.    To allow otherwise would seriously undermine the

legal effect behind Rule 4 as well as the legislative intent of the savings statute.   Under the

Court of Appeals’ ruling, if a plaintiff failed to serve process in compliance with Rule 4, the

plaintiff could proceed on the grounds that the trial court’s dismissal was jurisdictional and

constitutes a “matter of form” for purposes of the savings statute. This would essentially allow

plaintiffs who fail to serve process under Rule 4 to utilize the savings statute to preserve their

claim(s) and/or extend the life of their claim(s). Except as provided by Miss. Code Ann. § 15-

1-69, the savings statute was not designed to extend the life of a cause of action beyond that

of its original statute of limitation.   When a case is dismissed because a defendant was not

properly served within 120 days as mandated by M.R.C.P. 4(h), such a dismissal is not a

                                                  5
“matter of form” that comes within the intent of Miss. Code Ann. § 15-1-69. To the extent the

Court of Appeals’ judgment conflicts with this rationale, it is reversed.

¶14.    Also, this case presents a subtle issue which was not addressed by the Court of Appeals.

While the filing of a complaint tolls the statute of limitations, if service is not made upon the

defendant within 120 days as required by M.R.C.P. 4(h), the limitations period resumes

running at the end of the 120 days. See Holmes v. Coast Transit Auth., 815 So.2d 1183, 1185

(Miss. 2002); Watters v. Stripling, 675 So.2d 1242, 1244 (Miss. 1996);                    Moore ex rel.

Moore v. Boyd, 799 So.2d 133, 137 (Miss. Ct. App. 2001); Young v. Hooker, 753 So.2d 456,

460 (Miss. Ct. App. 1999).

¶15.    In addressing this issue, we consider the following time-line:

        November 29, 1996                Terry Owens was killed and the three (3) year statute of
                                         limitations begins to run.

        November 26, 1997                Jackie Owens filed a wrongful death action against Paul
                                         Mai.

        March 26, 1998                   The 120-day process period set forth by Rule 4(h) of the
                                         Mississippi Rules of Civil Procedure runs. PROCESS
                                         WAS NOT SERVED -- RUNNING OF THE STATUTE
                                         RESUMED.

        March 29, 2000                   Pursuant to Miss. Code Ann. §15-1-49 (Rev. 1995), the
                                         statute of limitations runs.

        May 2, 2001                      Mai moves for a dismissal of Crystal Springs I

        July 16, 2001                    Trial court grants Mai’s motion to dismiss.

        November 2, 2001                 Owens filed Crystal Springs II, which the trial court
                                         dismissed as time-barred.




                                                     6
¶16.      In November 1997, Owens brought suit against Mai for wrongful death. Thus, filing of

the complaint even without service of process tolls the 3-year statute of limitations for the

120-day period allowed in M.R.C.P. 4(h). Erby v. Cox, 654 So.2d 503, 505 (Miss. 1995).

However, the record reflects that Owens failed to properly serve process upon Mai within 120

days.     We have clearly noted in cases past that unless process is served within the 120-day

period as provided by Rule 4(h), the running of the statute of limitations resumes. Triple “C”

Transport, Inc. v. Dickens, 870 So.2d 1195, 1199-1200 (Miss. 2004); Perry v. Andy, 858

So.2d 143, 147 (Miss. 2003); Fortenberry v. Mem’l Hosp. at Gulfport, Inc., 676 So.2d 252,

254 (Miss. 1996). Thus, Owens’s failure to properly serve Mai with process caused the statute

of limitations to resume running.     Because of this, the statute of limitations ran in March,

2000, some fourteen (14) months prior to Mai’s motion to dismiss Crystal Springs I and some

nineteen (19) months prior to Owens’s filing of Crystal Springs II.     Thus, when Owens filed

Crystal Springs II, the three (3) year statute of limitation set forth in Miss. Code Ann. § 15-1-

49 (Rev. 2003) had run.

¶17.      Therefore, we hold that because the three (3) year statute of limitations had expired

prior to Owens’s filing her second complaint, the trial court correctly dismissed it as time-

barred.     The savings statute cannot save a complaint from the expiration of the applicable

statute(s) of limitations.   To allow otherwise would circumvent the effect and purpose of

statutes of limitations.

                                         CONCLUSION

¶18.      A trial court’s dismissal of an action for failure to serve process as required by Rule

4 of the Mississippi Rules of Civil Procedure is not a “matter of form” for purposes of the

                                                 7
 savings statute. Additionally, if service of process is not made upon a defendant in compliance

 with M.R.C.P. 4(h), the limitations period beings to run again at the end of the 120 days. Thus,

 the trial court was correct in dismissing Owens’s action as time-barred, and such a dismissal

 does not come within the purview of the savings statute. Thus, it follows that the judgment of

 the Court of Appeals is reversed, and the judgment of the Circuit Court of Copiah County is

 affirmed.

 ¶19. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE
 JUDGMENT OF THE COPIAH COUNTY CIRCUIT COURT IS AFFIRMED.

     SMITH, C.J., WALLER, P.J., EASLEY, CARLSON, DICKINSON AND RANDOLPH,
JJ., CONCUR.      COBB, P.J., CONCURS     IN RESULT ONLY. DIAZ, J., NOT
PARTICIPATING.




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