Schustz v. Buccaneer12/10/2002
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: REVERSED AND REMANDED - 12/10/2002
PROCEDURAL HISTORY
. Lennie and Karen Schustz rented the Jacuzzi suite at the Paddle Wheel Motel in Hancock County, Mississippi, on December 1, 1995. Unfortunately, Lennie drowned that night in the Jacuzzi tub. Karen and Lennie's other successors (Karen) filed their original complaint for wrongful death on April 21, 1998, naming Buccaneer, Inc. as the defendant. Buccaneer owned and operated the Paddle Wheel. Upon learning that the Paddle Wheel had been sold on November 19, 1996, Karen filed her amended complaint naming the successor in interest of the Paddle Wheel, Norbert W. Kohnke, as an additional defendant. The real estate transaction was actually conducted between Buccaneer Inc. as the seller and Solarplex Inc. as the buyer. However, Solarplex, Inc. was administratively dissolved on October 14, 1994, over two years before the transfer of the Paddle Wheel occurred.
. Buccaneer, Inc. was also administratively dissolved by the Mississippi Secretary of State. Buccaneer was incorporated on April 10, 1980, and duly registered with the Mississippi Secretary of State's office. On October 18, 1995, the Secretary of State's records show an official address change for the corporation to 700 Highway 90 in Waveland, Mississippi. This address belongs to Lucien Gex, the corporation's attorney and agent for service of process. Thereafter, Buccaneer failed to submit annual reports to the Secretary of State's office and the agency administratively dissolved Buccaneer on November 17, 1997.
. Karen attempted to serve process on Buccaneer, Inc. Initially, she tried to serve process through Buccaneer's registered agent of process, Lucian Gex, on May 4, 1998. On that same day, Mr. Gex wrote to Karen's attorney, notifying counsel of Gex's resignation as agent for Buccaneer. Mr. Gex had resigned as agent on May 8, 1997, by filing the appropriate documents with the Mississippi Secretary of State's office. Apparently, no other agent was substituted with the agency. Thereafter, Karen served Buccaneer directly by registered mail, addressing the summons to the official place of business address as listed by the Secretary of State. This official address was still listed as 700 Highway 90 in Waveland, which was also the address of the resigned agent. Attempts to find Bruce McMahon, the president of Buccaneer, Inc., were unsuccessful.
. As stated, upon notification of Kohnke's role as successor in interest by virtue of sale, Karen amended her complaint and served Kohnke with process. Kohnke filed an answer and began to conduct discovery. Karen's counsel notified Buccaneer's insurance carrier of the pending suit, and counsel for Buccaneer filed a general entry of appearance on April 9, 1999. Buccaneer's counsel did not file an answer to the amended complaint.
. Karen filed a motion for default judgment on May 26, 2000. In response, Buccaneer filed a motion to dismiss or, in the alternative for summary judgment, on January 3, 2001, based upon failure to serve process. A hearing was held on February 20, 2001, with the circuit judge granting Buccaneer's motion on March 13, 2001. This appeal followed.
. Karen Schustz and the other beneficiaries of Lennie Schustz come before this Court citing numerous issues which we quote:
1. The trial court erred in dismissing Buccaneer, Inc., as a defendant because counsel for Buccaneer, Inc., made a general entry of appearance, thereby waiving the necessity of service and any objections to service as effectuated by plaintiffs;
2. The trial court erred in dismissing Buccaneer, Inc.
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