                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2016-IA-00636-SCT

ESTATE OF RUSSELL PUCKETT

v.

CAROL CLEMENT


DATE OF JUDGMENT:                          04/21/2016
TRIAL JUDGE:                               HON. ISADORE W. PATRICK, JR.
TRIAL COURT ATTORNEYS:                     DAVID M. SESSUMS
                                           EUGENE A. PERRIER
COURT FROM WHICH APPEALED:                 WARREN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    KENNETH B. RECTOR
ATTORNEY FOR APPELLEE:                     DAVID M. SESSUMS
NATURE OF THE CASE:                        CIVIL - WILLS, TRUSTS, AND ESTATES
DISPOSITION:                               REVERSED AND RENDERED - 10/05/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       CHAMBERLIN, JUSTICE, FOR THE COURT:

¶1.    This interlocutory appeal arises from a 2010 civil suit filed in the Circuit Court of

Warren County (the “trial court”) by Carol Clement against Russell Puckett. After Puckett’s

death in 2014, Clement substituted the Estate of Russell Puckett (the “Estate”) as the

defendant in the suit and served the Estate. The Estate moved to dismiss the suit due to

failure to timely serve process under Mississippi Rule of Civil Procedure 4(h). The Estate

argued that the statute of limitations had expired before Clement perfected service. The trial

court denied the motion to dismiss. The Estate now appeals the trial court’s denial of the
motion to dismiss.1 Because the trial court erred when it denied the motion to dismiss, we

reverse and render judgment in favor of the Estate.

                        FACTS AND PROCEDURAL HISTORY

¶2.    In her complaint, Clement maintained that Puckett had told her she could have the two

planters on his front porch when he either passed away or closed the antique store where he

also lived. According to Clement, she had purchased antiques from Puckett in the past, and

she claimed that by September 2009 there had been no activity at Puckett’s residence for

some months. She also asserted that she had heard from the neighbors that Puckett had

passed away. Further, Clement alleged that she had knocked on Puckett’s door and rung his

doorbell on a number of occasions and had not received any response.

¶3.    Therefore, on the evening of September 11, 2009,2 Clement, with the assistance of her

daughter, removed one of Puckett’s planters from his porch and began to carry it toward her

nearby home. Clement maintained that she and her daughter crossed the street in front of

Puckett’s home with the planter carried between them when Puckett fired four shotgun

rounds behind them. Clement claimed that two of the shots struck her and caused the planter

to explode. She also alleged that Puckett fired two additional shots “in a direction

       1
         On appeal, the Estate and Clement both analyze Clement’s claims under a three-year
statute of limitations. While Clement’s suit would be barred by a three-year statute of
limitations, we decline to apply a three-year limitations period to these facts. In accord with
settled law, we apply a one-year statute of limitations to Clement’s claims as discussed infra.
       2
        In its brief, the Estate claims that the events in the complaint took place on
September 24, 2009. We rely on the date alleged by Clement. The difference between the
two dates does not affect the outcome of our analysis.

                                              2
unknown.”

¶4.    Clement filed suit against Puckett on June 11, 2010. The complaint set forth three

counts: (1) negligence in the operation and discharge of a firearm, (2) gross negligence in the

operation and discharge of a firearm and (3) deliberate, intentional and reckless disregard of

the safety of Clement and her daughter.

¶5.    Before the Estate was served with process and its motion to dismiss was denied, a

number of procedural motions, orders and notices were entered. The relevant procedural

history of the case is summarized in the following timeline:

                               Procedural History Timeline

Sept. 11, 2009       Puckett allegedly shot Clement.
 June 11, 2010       Clement filed her complaint in the trial court.

                     Statute of limitations tolled with 93 days remaining.

                     120-day period to serve process until October 12, 2010, began.
 Aug. 18, 2010       Trial court granted Clement’s first motion for additional time to
                     serve process until November 18, 2010.
 Nov. 17, 2010       Trial court granted Clement’s second motion for additional time
                     to serve process until January 31, 2011.
 Jan. 20, 2011       Trial court granted Clement’s third motion for additional time to
                     serve process until May 2, 2011.
 May 3, 2011         Statute of limitations resumed.




                                              3
 June 27, 2011        Trial court granted Clement’s fourth motion for additional time to
                      serve process until October 1, 2011.

                      Statute of limitations tolled with 38 days remaining.3
 Oct. 2, 2011         Statute of limitations resumed.
 Oct. 24, 2011        Trial court granted Clement’s fifth motion for additional time to
                      serve process until February 28, 2012.

                      Statute of limitations tolled with 16 days remaining.
 Feb. 29, 2012        Statute of limitations resumed.
 Mar. 16, 2012        Statute of limitations expired.
 July 31, 2014        Warren County Chancery Court (the “chancery court”) received
                      Puckett’s will for probate.

                      Chancery court issued letters of administration to Harvey Smith4 as
                      executor of the Estate.
 Aug. 7, 2014         Clement filed a motion for suggestion of death and an amended
                      complaint.
 Aug. 12, 2014        Trial court substituted the Estate as the defendant.
 Aug. 26, 2014        Clement returned service, executed on the Estate.
 Oct. 10, 2014        Estate filed motion to dismiss.

                      Estate answered the complaint.
 Nov. 20, 2014        Estate served requests for admission, interrogatories and production
                      of documents on Clement.


       3
         Because Clement allowed the deadline for service of process to expire before she
filed her fourth motion for additional time to serve Puckett, we calculate the limitations
period based on the date that the trial court entered the order granting the extension, not on
the date that Clement filed her fourth motion. The outcome of our analysis is the same with
either date.
       4
           Harvey Smith was Puckett’s longtime caretaker and friend.

                                              4
 Nov. 21, 2014        Clement answered requests for admission.
 Mar. 10, 2015        Puckett’s heirs-at-law filed a will contest in the chancery court.
 Apr. 10, 2015        Clement filed notice of her response to the Estate’s interrogatories
                      and request for production of documents.
 Mar. 4, 2016         Chancery court recognized that Puckett’s heirs-at-law had settled
                      the will contest.
 Mar. 15, 2016        Chancery court issued letters of administration to Gerald Puckett as
                      the estate’s executor.
 Mar. 17, 2016        Gerald Puckett entered an appearance as the estate’s executor in
                      Clement’s suit.
 Mar. 18, 2016        Estate filed a brief in support of its motion to dismiss.
 Mar. 22, 2016        Estate filed a notice of hearing on its motion to dismiss.
 Apr. 14, 2016        Trial court held a hearing on the motion to dismiss.
 Apr. 21, 2016        Trial court denied the Estate’s motion to dismiss.

¶6.    After the hearing, the trial court denied the motion to dismiss. The record and the

transcript before us, however, do not reflect the trial court’s rationale in denying the motion

to dismiss.

¶7.    Aggrieved, the Estate appeals. The Estate argues that the trial court erred in denying

the motion to dismiss because (1) Clement failed to show good cause for failing to serve

Puckett within the statute of limitations, and (2) it did not waive its statute-of-limitations

defense. Clement responds that the trial court properly denied the motion to dismiss since

she demonstrated good cause and the Estate waived its defense of the statute of limitations.

We will address only the issue of the statute of limitations, as it is dispositive of Clement’s

suit against the Estate.

                                               5
                                STANDARD OF REVIEW

¶8.    “The waiver . . . of an affirmative defense is subject to an abuse-of-discretion standard

of review.” Kinsey v. Pangborn Corp., 78 So. 3d 301, 306 (Miss. 2011). “‘This Court uses

a de novo standard of review when passing on questions of law including statute of

limitations issues.’” Chimento v. Fuller, 965 So. 2d 668, 673 (Miss. 2007) (quoting ABC

Mfg. Corp v. Doyle, 749 So. 2d 43, 45 (Miss. 1999)).

                                        ANALYSIS

       1.     Waiver

¶9.    The Estate did not waive its right to assert the statute of limitations as a defense. In

Mississippi, “[a] defendant’s failure to timely and reasonably raise and pursue the

enforcement of any affirmative defense or other affirmative matter or right which would

serve to terminate or stay the litigation, coupled with active participation in the litigation

process, will ordinarily serve as a waiver.” MS Credit Ctr., Inc. v. Horton, 926 So. 2d 167,

180 (Miss. 2006) (n.8 omitted). In order to constitute a waiver, the delay must be

“substantial and unreasonable.” Id.

¶10.   In Horton, the amended complaint was filed on May 5, 2003. Id. The defendants

filed their answers to the amended complaint on May 23, 2003, and July 7, 2003, asserting

their right to compel arbitration. Id. The defendants then delayed eight months, “all the

while participating in the litigation process,” before moving to compel arbitration on March

22, 2004. Id. According to the Horton Court, the defendants had “provided no plausible


                                               6
explanation for th[e] delay.” Id.

¶11.   Unlike the delay in Horton, the seventeen-month delay between the Estate’s filing of

its motion to dismiss and noticing the motion for hearing was not unreasonable. Such a

delay, with “no plausible explanation,” might be unreasonable. Id. Here, though, the delay

is reasonable because, five months after the Estate moved to dismiss, Puckett’s heirs-at-law

filed a will contest which questioned the legitimacy of Smith as the Estate’s executor.

Ultimately, the will challenge was settled, Puckett’s will was set aside, and Smith was

removed as executor. The settlement was recognized by the chancery court on March 4,

2016, and letters of administration were issued to Gerald Puckett on March 15, 2016. Seven

days later, the Estate set its motion for hearing. The delay here is reasonable as the Estate

could not be expected to set its motion for hearing and argue it before the chancery court had

determined who was the proper executor of the Estate.

¶12.   Further, in contrast to the defendants in Horton, the Estate did not participate actively

“all the while” during the delay in the litigation process. Id. The Estate initially answered

and moved to dismiss the complaint. Forty-one days later, the Estate served an initial set of

discovery requests on Clement. After this, the Estate did not enter any other filings or

participate in the litigation in the trial court until its new executor filed an entry of

appearance after the will contest was settled. Thus, the Estate did not actively participate “all

the while . . . in the litigation process” during the delay. Id.

¶13.   After review of the record, we find that the trial court abused its discretion in


                                               7
determining that the Estate had waived its statute-of-limitations defense. The delay was

reasonable, given the will contest, and the Estate did not participate “all the while . . . in the

litigation process” during the delay. Id. Therefore, the Estate did not waive its statute-of-

limitations defense as a matter of law.

       2.      One-Year Statute of Limitations

¶14.   Clement’s claims are subject to the one-year statute of limitations. Mississippi Code

Section 15-1-35 provides that “[a]ll actions for assault, assault and battery . . . shall be

commenced within one . . . year next after the cause of such action accrued, and not after.”

Miss. Code Ann. § 15-1-35 (Rev. 2012).

¶15.   At the outset of our analysis, we recognize that Clement’s suit would be barred by

either the one-year or the three-year statute of limitations. Given our precedent, though, we

decline to apply a three-year limitations period to Clement’s allegations of negligence, as

Clement’s “complaint states a claim generically akin to a common law assault and battery.”

City of Mound Bayou v. Johnson, 562 So. 2d 1212, 1215 (Miss. 1990).

¶16.   In Mississippi, the torts of negligence, assault, and battery are separate. See Webb v.

Jackson, 583 So. 2d 946, 951 (Miss. 1991). “[T]here is no such thing as a negligent assault.”

Id. Further, the Court of Appeals rightly has found that “an intentional tort cannot be

committed negligently.” Jordan v. Wilson, 5 So. 3d 442, 447 (Miss. Ct. App. 2008).

¶17.   Within the context of statutes of limitations, we recently reaffirmed this principle

when we held that we would “not recognize claims for intentional torts veiled in a cloak of


                                                8
negligence.” Sanderson Farms, Inc. v. McCullough, 212 So. 3d 69, 80 (Miss. 2017) (citing

Jordan, 5 So. 3d at 447). Moreover, this Court “prohibit[s] the characterization of an

intentional tort as an act of negligence in order to escape the one-year bar.” Howard v.

Wilson, 62 So. 3d 955, 956 (Miss. 2011). Further, “‘there can be no escape from the bar of

the statute of limitations applicable to intentional torts by the mere refusal to style the cause

brought in a recognized statutory category and thereby circumvent prohibition of the

statute.’” Johnson, 562 So. 2d at 1215 (quoting Dennis v. Travelers Ins. Co., 234 So. 2d

624, 626 (Miss.1970)).

¶18.   While Count I and II of Clement’s complaint allege negligence and gross negligence

“in the operation and discharge of the firearm,” Clement never alleges any facts to support

her claim of negligence. Clement maintains that she “heard a loud explosion and the portion

of the planter being carried by [her] exploded in her arms[,] and [she] was hit by multiple

shotgun pellets from a shotgun fired in the direction of [her] by [Puckett].” She also claims

“[t]hat after firing in the direction of [her] . . . , [Puckett] fired another two . . . rounds from

said shotgun in a direction unknown.” Presumably, it is this language “in a direction

unknown” with which Clement supports her claims of negligence.

¶19.   This allegation, though, is insufficient to support a claim of negligence. The mere fact

that Clement does not know the direction in which Puckett fired the last two rounds does not

support the conclusion that he was negligent. All of the allegations in the complaint provide

support for the fact that Puckett intentionally fired the shotgun at Clement. Clement had left


                                                 9
Puckett’s property and was across the street when she was struck by the pellets from the gun.

She also detailed her significant injuries from the shotgun pellets. No factual allegations in

the complaint support a claim of negligence by Puckett.

¶20.   We recognize that a plaintiff may plead claims that are inconsistent with one another,

but this fact does not relieve the plaintiff of the duty to set forth a claim. See M.R.C.P.

8(a)(2), (e)(2); Jordan, 5 So. 3d at 447–48. Therefore, while the outcome of our analysis

would be the same under a three-year bar, we apply a one-year bar to Clement’s suit in

accordance with our precedent.

       3.     Application of the Statute of Limitations

¶21.   It is settled Mississippi law that when a suit “is commenced within the period of

limitation, the statute of limitations stops running, for a time.” Heard v. Remy, 937 So. 2d

939, 942 (Miss. 2006) (quoting Triple “C” Transp., Inc. v. Dickens, 870 So. 2d 1195, 1199

(Miss. 2004)) (emphasis in original). “In the event process is not served during the 120 day

service period, the statute begins to run again.” Dickens, 870 So. 2d at 1199–200 (Miss.

2004). Rule 4(h) sets out the 120-day deadline:

       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). 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

                                             10
or dismiss the suit and refile it. See Dickens, 870 So. 2d at 1200 (citing Holmes v. Coast

Transit Auth., 815 So. 2d 1183, 1185 (Miss. 2002)).

¶22.   Assuming all of Clement’s extensions of time were proper and tolled the statute of

limitations, she still failed to perfect service before the expiration of the statute of limitations,

and her suit is barred. The statute of limitations began running in this case on September 11,

2009. On June 11, 2010, Clement filed the complaint and tolled the statutes with ninety-three

days remaining. The statute began running again in the interim periods between the third and

fourth extensions of time and the fourth and fifth extensions of time. After the fifth

extension expired on February 28, 2012, the statute of limitations resumed running and

expired on March 16, 2012. Clement did not serve process on Puckett or the Estate until

August 25, 2014. Therefore, Clement’s suit is barred by the statute of limitations, and the

trial court erred in denying the Estate’s motion to dismiss.

                                         CONCLUSION

¶23.   The trial court abused its discretion in denying the motion to dismiss, as the Estate did

not waive its statute-of-limitations defense. Further, the one-year statute of limitations

applies to Clement’s claims and serves to bar her suit. Thus, we reverse the trial court’s

denial of the motion to dismiss and render judgment in favor of the Estate.

¶24.   REVERSED AND RENDERED.

    WALLER, C.J., RANDOLPH, P.J., COLEMAN, MAXWELL AND BEAM, JJ.,
CONCUR. KITCHENS, P.J., CONCURS IN PART AND IN RESULT WITH
SEPARATE WRITTEN OPINION JOINED BY KING, J. ISHEE, J., NOT
PARTICIPATING.

                                                 11
    KITCHENS, PRESIDING JUSTICE, CONCURRING IN PART AND IN
RESULT:

¶25.   I agree with the majority that the one-year statute of limitations5 applies to bar Carol

Clement’s claim that Russell Puckett intentionally and deliberately fired a shotgun in her

direction. But I cannot join the majority’s finding—at the motion to dismiss stage—that the

allegations pled in Clement’s complaint do not support her claims of negligence and gross

negligence. Accordingly, Clement’s claims of negligence and gross negligence are barred by

the three-year statute of limitations.6 Therefore, I respectfully concur in part and in result.

¶26.   In Jordan v. Wilson, 5 So. 3d 442, 444 (Miss. Ct. App. 2008), cert. denied, 11 So. 3d

1250 (Miss. 2009), the Mississippi Court of Appeals considered a case in which the plaintiff

had “parked her vehicle, temporarily, in the [d]efendant’s driveway, while attempting to

locate a patient whom she was scheduled to see.” Misapprehending the plaintiff to be an

intruder, the defendant “pointed a long firearm directly toward [p]laintiff” and “kept her

firearm pointed at [p]laintiff for several minutes.” Id. The actions of the defendant, which

placed plaintiff in fear for her life, resulted in the plaintiff’s having to seek medical attention

and undergo counseling: “[s]he has suffered extreme stress and anxiety[] and has lost

income[] as a result of the [d]efendant’s actions.” Id.

       5
           Miss. Code Ann. § 15-1-35 (Rev. 2012) (“All actions for assault, assault and battery
. . . shall be commenced within one (1) year next after the cause of such action accrued, and
not after.”).
       6
         Miss. Code Ann. §15-1-49(1) (Rev. 2012) (“All actions for which no other period
of limitation is prescribed shall be commenced within three (3) years next after the cause of
such action accrued, and not after.”).

                                                12
¶27.   The trial court had dismissed the case under Mississippi Rule of Civil Procedure

12(b)(6), finding that the plaintiff pled “a nonexistent cause of action for ‘negligent assault.’”

Id. at 445. While noting that no cause of action for negligent assault exists7 and “an

intentional tort cannot be committed negligently,” the Court of Appeals observed that it “does

not follow that one may not be found liable for either an intentional tort or negligence based

on the same conduct, assuming of course that there is sufficient evidence to support a jury

finding of liability on either theory.” Id. at 447 (emphasis in original). The Court of Appeals

therefore reversed the judgment and remanded the case, holding that the plaintiff adequately

had pled “a claim of both negligence and assault, notwithstanding that the claims are

inconsistent.” Id. at 448, 450.

¶28.   The Court of Appeals continued that, “[t]aking the facts alleged in [the plaintiff’s]

complaint as true, we find that they are such that [the plaintiff] could prove a set of facts that

would entitle her to relief on her claim of negligence.” Id. at 449. “Jordan would be entitled

to relief if the jury were to believe that [the defendant] rested the gun on the windowsill

without the intent required to constitute an assault, [the defendant’s] conduct breached the

standard of care, and [the plaintiff’s] injuries were foreseeable.” Id.

¶29.   In the present case, Clement alleged that Puckett’s “operation and discharge” of the

firearm constituted negligence and gross negligence and that the negligence and gross


       7
        In the criminal context, a person can be convicted of simple assault if he or she
“negligently causes bodily injury to another with a deadly weapon or other means likely to
produce death or serious bodily harm . . . .” Miss. Code Ann. § 97-3-7 (Rev. 2014).

                                               13
negligence proximately caused her injuries. She also claimed that Puckett’s actions “were

deliberate and intentional and in reckless disregard of the safety of Plaintiff and her daughter

. . . .” Specifically, Clement alleged that she and her daughter, under the mistaken belief that

Puckett had died or closed the antique shop which he operated on the premises of his

residence, had gone to Puckett’s house to remove two planters “located outside the entrance

to the subject premises” which Puckett had promised to her. After having collected the

planters, Clement and her daughter walked across Cherry Street and “heard a loud

explosion.” According to the complaint, “the portion of the planter being carried by

[Clement] exploded in her arms and [she] was hit by multiple shotgun pellets from a shotgun

fired” by Puckett “in the direction of Clement.” Puckett did not make his presence known

prior to firing the shotgun, nor did he call out to Clement “to either stop or return to the

subject premises.” Puckett then fired two more “rounds from said shotgun in a direction

unknown.”

¶30.   Taking the allegations Clement pled in her complaint as true, Clement, like the

plaintiff in Jordan, “could prove a set of facts that would entitle her to relief on her claim

of negligence” and/or gross negligence. Jordan, 5 So. 3d at 449. Clement could prove

negligence and/or gross negligence were the jury to believe that Puckett fired the shotgun in

Clement’s direction, not with the intent to assault and batter her, but rather with the intent to

startle a pair of intruders who had, moments before, made off with planters which had been

situated outside his home. Id. at 449.


                                               14
¶31.   The majority finds that “[a]ll of the allegations in the complaint provide support for

the fact that Puckett intentionally fired the shotgun at Clement.” (Maj. Op. ¶ 19). The

majority mentions that “Clement had left Puckett’s property and was across the street when

she was struck by the pellets from the gun” and that she had experienced “significant injuries

from the shotgun pellets.” (Maj. Op. ¶ 19). But none of those allegations negates Clement’s

claims of negligence and gross negligence. A jury still reasonably could believe that

Puckett’s act of firing a shotgun in the direction of Clement was negligent and/or grossly

negligent. Accordingly, the three-year statute of limitations applied to Clement’s negligence

and gross negligence claims.

¶32.   This case is unlike those on which the majority relies. In Sanderson Farms, Inc. v.

McCullough, 212 So. 3d 69, 71 (Miss. 2017), at the summary judgment stage, this Court

held that “[a]lthough the plaintiff’s overarching claim is framed in negligence, it factually

sounds in intentional tort and is subsequently barred by the one-year statute of limitations .

. . .” The Court continued that “[t]he evidence presented to support the claim alleged in [the

plaintiff’s] complaint—while pleaded as an action in negligence—supports a claim

generically akin to common-law assault and battery[,] an intentional tort.” Id. at 75. In

Howard v. Wilson, 62 So. 3d 955, 956 (Miss. 2011), the complaint alleged that, “[w]hile

shopping on the premises of Citi Trends, [the plaintiff] was brutally injured when an

employee of Citi Trends, [the defendant] maliciously, reckless[ly], negligently, and violently

attacked [the plaintiff] with a pair of scissors.” The Court affirmed dismissal, holding that


                                             15
“[s]imply adding ‘negligently’ to the list of adjectives describing the attack does not make

it an act of negligence . . . .” Id. at 957 (internal citation omitted).

¶33.   Howard involved only an intentional tort. Here, based on the allegations pled in the

complaint, Puckett’s act was not so clearly intentional. And, unlike the plaintiff in

McCullough, Clement had no opportunity to present evidence in support of her claims of

negligence and gross negligence. Nevertheless, because Clement allowed the three-year

limitations period to expire, her claims of negligence and gross negligence are barred.

       KING, J., JOINS THIS OPINION.




                                                16
