Adams v. Mba Found.
| Decision Date | 04 June 2019 |
| Docket Number | NO. 2018-CA-00497-COA,2018-CA-00497-COA |
| Citation | 281 So.3d 1077 |
| Court | Mississippi Court of Appeals |
| Parties | Joshua ADAMS, Appellant v. MBA FOUNDATION d/b/a Mississippi Basketball & Athletics, Appellee |
EN BANC.
McDONALD, J., FOR THE COURT:
¶1. Joshua Adams appeals the Hinds County Circuit Court's order that reversed a Hinds County County Court's judgment granting him an extension of time to serve process on Mississippi Basketball & Athletics (MBA). The circuit court also granted MBA's summary judgment motion and dismissed the case on statute of limitation grounds. Finding that the circuit court abused its discretion, we reverse.
FACTS AND PROCEDURAL HISTORY
¶2. On May 4, 2014, Adams was working as a referee during a basketball tournament held at MBA's facility. Adams and Justin Griffin, a basketball coach, had an argument that escalated into a more serious altercation in the parking lot. As a result of the fight, Griffin suffered a head injury
that sadly caused his death two days later.
¶3. Adams contends that he also suffered severe injuries as a result of the altercation. Adams filed a complaint on May 1, 2017—three days prior to the running of the three-year statute of limitations—against MBA; Mississippi Boys Hoops Inc.; and Amateur Athletics Union, alleging negligent hiring, retention, and supervision or control of Griffin.
¶4. On May 10, 2017, Adams filed a motion to transfer the case to circuit court and argued he inadvertently wrote "county court" instead of "circuit court" on the complaint because his damages exceeded the county court's jurisdictional limits of $ 200,000.
¶5. Prior to a ruling on the motion to transfer, Adams served two of the three defendants.1 But Adams had difficulty serving MBA. According to the Secretary of the State's website, MBA's registered agent was Jeffery Lewis, whose address was 105 Kenilworth Place, Ridgeland, Mississippi. Adams's process server made six attempts to serve MBA within 120-days, but neither Lewis nor anyone else answered the door. On the 121st day, August 30, 2017, Adams filed a motion for an extension of time to serve MBA and stated the following in his Motion:
Plaintiff's process server has tried serving the defendant on numerous occasions. Despite diligent efforts, Plaintiffs process server has not been able to effectuate process on Defendant.
(Emphasis added).
¶6. The county court granted the motion on September 11, 2017, stating:
This matter came before the Court on the Plaintiff's Motion For Extension of Time To Serve Process on the defendants in this cause, and the Court, after considering said motion , finds that it is well taken and should be granted.
(Emphasis added). Plaintiff was given an additional 120-days to serve MBA.
¶7. On October 10, 2017, Plaintiff had the Madison County Sheriff's Office attempt service on Lewis at the address listed on the Secretary of State's website. But the deputy was also unsuccessful.
¶8. On October 24, 2017, the county court transferred the case to the circuit court.
¶9. Finally, on November 17, 2017, Lewis was served by a private process server, Terrell Wells, at the MBA facility in Jackson where Lewis worked.
¶10. On December 12, 2017, MBA filed a motion in the circuit court to set aside the county court's order granting Adams an extension of time to serve process upon MBA and for summary judgment based upon its statute of limitations defense. MBA asserted it was entitled to summary judgment because Adams failed to show good cause for an extension of time to serve MBA and that Adams's claims were therefore time barred. MBA argued that Adams provided no facts and did not submit any affidavits or other evidentiary support with his motion when it was filed in the county court.2
¶11. Adams filed a response to MBA's motion to set aside the order and for summary judgment on December 30, 2017. Adams provided the affidavit of Terrell Wells, the process server, who stated that he attempted to serve MBA on more than six occasions at the address listed for the registered agent on the Secretary of State's website. Wells's affidavit also mentioned vehicles were in the driveway, but no one answered the door. Additionally, Adams provided the circuit court with documentation dated October, 10, 2017, from the Deputy Sheriff of Madison County, Randall Tucker, who stated he too was unable to serve MBA at that address.
¶12. A hearing was held on MBA's motion to set aside the county court's order granting Adams's motion for an extension of time and for summary judgment. The circuit court found that the county court's order should be set aside, and MBA's motion for summary judgment was granted on the ground of statute of limitations.
¶13. Adams timely appealed to this Court.
STANDARD OF REVIEW
¶14. This Court looks for abuse of discretion when reviewing a ruling court's decision on whether to set aside an order granting an extension of time. Copiah Cty. Sch. Dist. v. Buckner , 61 So. 3d 162, 166 (¶ 12) (Miss. 2011) ; Booth v. Williams , 200 So. 3d 1053, 1057 (¶ 11) (Miss. Ct. App. 2016). "This Court leaves to the discretion of the trial court the finding of fact on the existence of good cause or excusable neglect for delay in serving process under Rule 4(h)." Buckner , 61 So. 3d at 166 (¶ 12). Further, our courts "will reverse if the trial court's discretion was abused or its decision was not supported by substantial evidence." Id. at 166 (¶ 12). Moreover, "we review the grant or denial of a motion for summary judgment de novo, viewing the evidence in the light most favorable to the party against whom the motion has been made." Karpinsky v. Am. Nat. Ins. Co. , 109 So. 3d 84, 88 (¶ 9) (Miss. 2013).
DISCUSSION
I. Whether the circuit court abused its discretion by setting aside the county court's 120-day extension of time.
¶15. This case is unique because it involves the rulings of two trial courts in the pre-trial stages of a case. The county court granted Adams's motion for extension of time. When the case was transferred, the circuit court set aside the county court's ruling finding that Adams failed to establish good cause to extend the time for service of process. Adams raises two issues on appeal: (1) whether he demonstrated good cause for failing to serve MBA within 120-days and (2) whether the county court's ruling is the "law of the case." We find that the circuit court abused its discretion regarding whether Adams demonstrated good cause for the extension of time. Our resolution of the first issue renders discussion of the "law of the case" argument unnecessary.
¶16. Mississippi Rule of Civil Procedure 4(h) states:
Summons: Time Limit for Service. 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.
¶17. Although it is preferred that a plaintiff petition the court for an extension of time prior to, rather than after, the expiration of the 120-day period, this failure is not fatal to the action because "a motion for extension of time may be filed after the 120-day time period has expired." Darville v. Mejia , 184 So. 3d 312, 317 (¶ 16) (Miss. Ct. App. 2016). After the expiration of the 120-days, "an extension of time to serve process continues to toll the statute of limitations only if granted for good cause." Heard v. Remy , 937 So. 2d 939, 943 (¶ 5) (Miss. 2006). The burden is on the plaintiff to demonstrate good cause for a failure to serve process in a timely manner. Buckner , 61 So. 3d at 166 (¶ 14). "To establish ‘good cause’ the plaintiff must demonstrate at least as much as would be required to show excusable neglect, ‘as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice.’ " Id. at 166 (¶ 14). "To meet the burden of proof of good cause, the plaintiff must demonstrate that a diligent effort was made to effect timely service." Id. at 166 (¶ 14). Additionally, the supreme court has held that good cause exists in these instances:
[W]hen the failure is a result of the conduct of a third person; when the defendant has evaded service of process or engaged in misleading conduct; when the plaintiff has acted diligently; when there are understandable mitigating circumstances; or when the plaintiff is proceeding pro se or in forma pauperis.
Foss v. Williams , 993 So. 2d 378, 379 (¶ 6) (Miss. 2008).
¶18. The circuit court found that Adams failed to meet his burden of good cause because: (1) the affidavit provided was not specific and did not include the requisite factual information; (2) there was no evidence that Lewis was home when service was attempted or that he deliberately evaded service; and (3) there was no evidence explaining why attempts were made at the single location of Lewis's home. As mentioned above, our supreme court has held that there are alternative instances in which good cause can exist. Foss , 993 So. 2d at 379 (¶ 5). These instances are noted disjunctively rather than conjunctively; therefore, there is no requirement that one prove more than one instance for a showing of good cause.4 After analyzing the facts and the law, we find that the circuit court erred in failing to find good cause for the extension of time. This court finds that Adams acted diligently in his efforts to serve MBA.
a. Whether the motion and order included "good cause" language.
¶19. Before addressing why the circuit erred it is imperative to note that Adams's motion for extension of time properly included "good cause" language. Although Adams's motion for an extension of time to serve MBA did not specifically state the words "good cause," it used the...
To continue reading
Request your trial