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Plummer v. Sherman11/16/2004
Submitted: October 13, 2004
Upon appeal from the Superior Court. REVERSED AND REMANDED
In this personal injury action, Appellant, Donnette F. Plummer, individually and as a parent of Quincy and Loxlie Plummer, appeals a decision of the Superior Court granting a motion to dismiss in favor of Appellee, Susan A. Sherman, for lack of personal jurisdiction. Sherman is the Administratrix for the Estate of Mark Fose, the original defendant in this matter.
Plummer raises four arguments for our consideration. First, she argues that the trial judge erred by granting Sherman's motion to dismiss because Sherman waived her lack of personal jurisdiction defense by failing to assert the defense in her answer or properly by motion. Second, Plummer contends that the trial judge erred in his conclusion that he could have allowed Sherman to amend her answer to include the lack of personal jurisdiction defense. Third, she argues that as a matter of policy cases should be decided on their merits and not on procedural technicalities. Finally, Plummer contends that the trial judge erred in finding that the Superior Court did not have personal jurisdiction over Sherman. She asserts that the Superior Court's jurisdiction was established by the personal service completed on Sherman after long arm service on Mark Fose failed.
We find that the trial judge erred in granting Sherman's motion to dismiss because Sherman waived the defense of lack of personal jurisdiction by failing to raise it by a timely motion, in her answer to Appellants' complaint, or by an amendment to the answer which could be made as a matter of course. Superior Court Civil Rule 12(h) expressly provides that " defense of lack of jurisdiction over the person ... is waived ... if it is neither made by motion under this Rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course." An amendment as a matter of course must be made within 20 days of the answer. We therefore reverse the trial judge's decision and remand for further proceedings to resolve the remaining issues raised in Sherman's motion to dismiss.
I.
This case arose from an automobile accident occurring on October 29, 1995 between Mark Fose and Appellants. Mark Fose fled the scene of the accident by foot, but was later apprehended by the police. He was charged with Driving under the Influence . The vehicle Mark Fose was operating was owned by his brother, Clifford Fose. The vehicle was insured under a policy issued by State Farm Fire and Casualty Company.
Appellants filed suit against Mark Fose and Clifford Fose on October 28, 1997. The suit alleged that Mark Fose negligently caused the accident and physical injuries to Appellants. Because Appellants were unable to serve Mark Fose, the complaint against him was dismissed on August 3, 1998 pursuant to Rule 4(j). The complaint against Clifford Fose was dismissed with prejudice through a stipulation of the parties on June 4, 1999.
Appellants then hired a private investigator to locate Mark Fose. The private investigator reported that Mark Fose had left Delaware. Pursuant to 10 Del. C. ยง 8118(a), Appellants filed a second complaint against Mark Fose on August 2, 1999 putting forth a similar cause to the first complaint. The summons and complaint were served on the Delaware Secretary of State on August 17, 1999 pursuant to the non-resident motorist long arm statute (hereinafter "the long arm statute"). The writ evidencing such service was returned to Appellants' counsel on September 2, 1999. Appellants unsuccessfully attempted to locate Mark Fose through their private investigator so that they could m
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