           IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2015-CA-00527-COA

DOUGLAS MICHAEL LONG, JR.                                                    APPELLANT

v.

DAVID J. VITKAUSKAS                                                            APPELLEE

DATE OF JUDGMENT:                          10/09/2014
TRIAL JUDGE:                               HON. ROBERT P. CHAMBERLIN
COURT FROM WHICH APPEALED:                 DESOTO COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   MICHAEL J. MALOUF
                                           ROBERT EUGENE JONES II
                                           JAMES MATTHEW LENDERMAN
ATTORNEYS FOR APPELLEE:                    A.E. (RUSTY) HARLOW JR.
                                           KATHI CRESTMAN WILSON
NATURE OF THE CASE:                        CIVIL - TORTS - OTHER THAN PERSONAL
                                           INJURY AND PROPERTY DAMAGE
TRIAL COURT DISPOSITION:                   GRANTED MOTION TO DISMISS FOR
                                           INSUFFICIENT SERVICE OF PROCESS
DISPOSITION:                               AFFIRMED - 10/04/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., BARNES AND ISHEE, JJ.

       LEE, C.J., FOR THE COURT:

¶1.    Douglas Long sued David Vitkauskas for alienation of affection. The DeSoto County

Circuit Court granted Vitkauskas’s motion to dismiss, finding insufficient service of process.

In this appeal, we must determine whether the trial court properly granted the motion to

dismiss.

                               PROCEDURAL HISTORY

¶2.    Long and his wife separated on May 16, 2011. On March 17, 2014, Long sued
Vitkauskas for alienation of affection. Vitkauskas, a resident of Pennsylvania, was served

with process via certified mail marked “restricted delivery” pursuant to Mississippi Rule of

Civil Procedure 4(c)(5). The address listed was Vitkauskas’s place of employment. The

return receipt was not signed by Vitkauskas but rather someone named “Mary” with the last

name illegible.

¶3.    On May 14, 2014, Vitkauskas’s attorney entered a special appearance to contest

jurisdiction. Vitkauskas also filed a motion to dismiss for lack of jurisdiction. On October

9, 2014, the trial court granted the motion, finding that service was insufficient since

Vitkauskas himself did not sign the return receipt. Long filed a motion for reconsideration

and Vitkauskas responded. After a hearing, the trial court denied Long’s motion for

reconsideration and denied Long’s request for additional time to serve Vitkauskas.

¶4.    Long now appeals, arguing that service of process was sufficient and that the trial

court erred by denying his request for additional time to serve Vitkauskas.

                               STANDARD OF REVIEW

¶5.    We review de novo a trial court’s decision to grant or deny a motion to dismiss.

Johnson v. Rao, 952 So. 2d 151, 154 (¶9) (Miss. 2007). Furthermore, “the trial court, not the

jury, determines issues of fact regarding service of process, and we apply an

abuse-of-discretion standard to the trial court’s findings of fact.” Nelson v. Baptist Mem’l

Hosp.-N. Miss. Inc., 70 So. 3d 190, 195 (¶17) (Miss. 2011).

                                      DISCUSSION

       I.     Service of Process



                                             2
¶6.    Long first contends that service of process on Vitkauskas was sufficient. Mississippi

Rule of Civil Procedure 4(c)(5) states the following for service of process on a person outside

Mississippi:

       [A] summons may be served on a person outside this state by sending a copy
       of the summons and of the complaint to the person to be served by certified
       mail, return receipt requested. Where the defendant is a natural person, the
       envelope containing the summons and complaint shall be marked “restricted
       delivery.” Service by this method shall be deemed complete as of the date of
       delivery as evidenced by the return receipt or by the returned envelope marked
       “Refused.”

¶7.    Long claims that he met the requirements of Rule 4(c)(5) regardless of who actually

signed the return receipt. And he claims that Vitkauskas clearly had notice since he sought

counsel in Mississippi, then filed an extension of time to respond to Long’s complaint as well

as a motion to dismiss. Vitkauskas argues that Rule 4(c)(5) requires the defendant

himself—not another person—to either sign the return receipt or mark the envelope

“refused.”

¶8.    It is well settled that service of process on a nonresident defendant is jurisdictional and

requires strict compliance with the rules. Worthy v. Trainor, 11 So. 3d 1267, 1268 (¶4)

(Miss. Ct. App. 2009) (citation omitted). In this instance, Vitkauskas did not sign the return

receipt. The purpose of restricted delivery is to ensure that the addressee will be the actual

recipient of the posted item. Restricted delivery “alerts the Post Office personnel attempting

delivery that the person to whom it is addressed must either sign for it or refuse it.” DeCarlo

v. Bonus Stores Inc., 413 F. Supp. 2d 770, 774 (S.D. Miss. 2006) (Service of process was

insufficient where the envelope was not marked “restricted delivery” and a member of the



                                               3
defendant’s household signed the return receipt.). Additionally, there was no evidence or

testimony that the person who did sign the return receipt had the authority to receive service

of process on Vitkauskas’s behalf.

¶9.    In regard to Long’s contention that Vitkauskas had sufficient notice of the suit, we

find it has no merit. Vitkauskas affirmatively asserted the issue of insufficient service of

process by entering a special appearance to contest jurisdiction and by filing a motion to

dismiss. See Burleson v. Lathem, 968 So. 2d 930, 933 (¶10) (Miss. 2007) (“Even when

service of process is insufficient, this Court has held that service-of-process defenses must

be affirmatively asserted either in the initial responsive pleading or by motion.”).

       II.    Request for Additional Time

¶10.   Long contends that good cause exists for additional time to serve Vitkauskas with

process. Rule 4(h) of the Mississippi Rules of Civil Procedure states a party must show good

cause why service of process was not made within 120 days of filing the complaint. We

review a trial court’s determination of whether good cause existed under our familiar

abuse-of-discretion standard. Stutts v. Miller, 37 So. 3d 1, 3 (¶7) (Miss. 2010).

¶11.   We first note that the trial court did not actually address Long’s argument concerning

good cause. Long only raised this argument in his motion for reconsideration, but the trial

court did not address it in its order.     The trial court simply denied the motion for

reconsideration. Long’s reason for good cause is that he thought he had strictly complied

with Rule 4(c)(5). However, “[t]o establish good cause the plaintiff must demonstrate at

least as much as would be required to show excusable neglect, as to which simple



                                              4
inadvertence or mistake of counsel or ignorance of the rules usually does not suffice.” Powe

v. Byrd, 892 So. 2d 223, 226 (¶10) (Miss. 2004). The “excusable neglect standard is a very

strict standard.” Moore ex rel. Moore v. Boyd, 799 So. 2d 133, 136 (¶7) (Miss. Ct. App.

2001). Here, Vitkauskas clearly did not sign the return receipt. And Long could have

attempted to serve process again or filed a motion for additional time.1 We can find no abuse

of discretion by the trial court in this instance.

¶12. THE JUDGMENT OF THE DESOTO COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

    GRIFFIS, P.J., BARNES, ISHEE, CARLTON, FAIR, JAMES AND
GREENLEE, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., DISSENTS
WITHOUT SEPARATE WRITTEN OPINION.




       1
         Our supreme court has held that although “a motion for additional time may be filed
after the 120-day time period has expired, a diligent plaintiff should file such a motion
within the 120-day time period” to support a claim that good cause existed for the failure to
properly serve process. Webster v. Webster, 834 So. 2d 26, 29 (¶11) (Miss. 2002); see also
Worthy v. Trainor, 11 So. 3d 1267, 1269 (¶6) (Miss. Ct. App. 2009) (good cause not shown
and no extension granted).

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