Bang v. Pittman, 97-CA-01551-SCT.
| Decision Date | 09 September 1999 |
| Docket Number | No. 97-CA-01551-SCT.,97-CA-01551-SCT. |
| Parties | Ira BANG, Sr. v. John S. PITTMAN, D.D.S. |
| Court | Mississippi Supreme Court |
Robert G. Germany, Jackson, Attorney for Appellant.
Joe R. Colingo, Stephen Walker Burrow, Pascagoula, Attorneys for Appellee.
EN BANC.
STATEMENT OF THE CASE
¶ 1. This is an appeal from orders of the Circuit Court of Jackson County, Mississippi, which (1) dismissed this civil action without prejudice because Bang failed to show good cause for his failure to serve the defendant with the summons and complaint within 120 days of the filing of the complaint as required by M.R.C.P. 4(h) and (2) refused to set aside that dismissal under M.R.C.P. 59(e). A complaint alleging medical malpractice was filed by Ira Bang, Sr., (hereinafter "Bang") and his wife, Anna Bang, against Singing River Hospital and John S. Pittman, D.D.S. (hereinafter "Pittman"), on October 25, 1996. Anna Bang was dismissed as a plaintiff. A motion for additional time to serve process was filed on February 21, 1997. On February 25, 1997, a notice of dismissal as to Singing River Hospital was filed.
¶ 2. Pittman filed a motion to dismiss and objection to the motion for additional time to serve process on March 4, 1997. The trial court entered its order dismissing this action without prejudice on June 12, 1997, finding that Bang had failed to obtain an order prior to the expiration of the 120 days to show cause why additional time was needed to serve Pittman. The trial court also found that Bang failed to serve Pittman during the 120 day period from the filing of the complaint and that Bang had failed to provide the court with good cause for the failure to serve Pittman timely.
¶ 3. Bang filed a motion to set aside the order of dismissal on June 19, 1997. Bang also filed an affidavit in support of his motion for additional time to serve process, allegedly showing good cause why Pittman was not served within the 120 day period. Pittman filed a response to the motion on July 3, 1997.
¶ 4. The trial court denied Bang's motion to set aside the order of dismissal on October 30, 1997. Bang appealed to this Court on November 26, 1997. Finding no abuse of discretion by the circuit court, we affirm.
¶ 5. On October 25, 1996, Bang filed a complaint against Singing River Hospital and Pittman alleging medical malpractice. Bang alleged that Pittman was negligent in his examination, treatment, and care of Bang and that Singing River Hospital, through its employees, was negligent in the examination, treatment and care of Bang. Anna Bang also sued, alleging loss of consortium arising from the injuries sustained by Bang.
¶ 6. On February 21, 1997, Howard Butler (hereinafter "Butler"), Bang's process server, attempted to serve process on Pittman. In an affidavit filed with the trial court, Butler outlined the events that occurred that day. Butler called Pittman's office for the purpose of serving the summons and complaint. Butler was told Pittman was out of the office. Butler then went to Pittman's home, where no one answered the door. As Butler was leaving, a car pulled into the driveway of the Pittman home. Butler returned to the house and talked to Mrs. Pittman who offered to accept the summons and complaint. Butler refused to serve Mrs. Pittman, saying he needed to talk to Bang's lawyer first.
¶ 7. Bang's lawyer advised Butler to serve the summons and complaint on Mrs. Pittman. However, when Butler returned to the Pittman home, Mrs. Pittman refused to accept the summons and complaint.
¶ 8. Butler then called Pittman's office, where an unidentified woman told him that both Pittman and his wife were in Mobile, Alabama. Butler knew this was untrue because he had just talked to Mrs. Pittman. Butler later asked Steve Sutherland to serve Pittman. ¶ 9. On February 21, 1997, Bang filed a motion for additional time to serve process. In his motion Bang alleged that Pittman was evading service of process based on the conflicting reports Butler received from Pittman's office and Mrs. Pittman. Bang also stated that an affidavit supporting these allegations would be filed with the court prior to any hearing on the motion. However, this affidavit was not filed until June 19, 1997, well after the hearing on Pittman's motion to dismiss and after the lower court entered an order dismissing the complaint.
¶ 10. On February 25, 1997, Bang voluntarily dismissed Singing River Hospital as a party to the suit. Pittman was finally served with process on February 27, 1997, 122 days after the complaint was originally filed.
¶ 11. Pittman filed a motion to dismiss the case on March 4, 1997. His basis was the fact that the summons and complaint had been served 122 days after the filing of the complaint in direct contravention to M.R.C.P 4(h). In the alternative, Pittman objected to Bang's motion for additional time to serve process, stating that Bang had sufficient time to serve the complaint and failed to do so without good cause.
¶ 12. Pittman noticed Bang that the hearing on his complaint would be held on March 13, 1997. Bang was renoticed that the hearing had been moved to March 27, 1997, then to April 10, 1997, then to May 1, 1997, and then to May 2, 1997. At no time before the hearing did Bang follow through with the language of his motion for additional time to serve and present the affidavit he had promised.
¶ 13. On June 12, 1997, the lower court entered its order dismissing the cause without prejudice. The court specifically found that Bang "failed to obtain an Order prior to the expiration of 120 days to show cause why they needed additional time to serve Defendant, failed to serve Defendant within 120 days from the date the Complaint was filed, and further did not provide the Court with good cause for the failure to serve Defendant within the prescribed 120 day period...."
¶ 14. Bang filed a motion to set aside the order of dismissal pursuant to M.R.C.P. 59 on June 19, 1997. At the same time, Bang filed the affidavit from Butler in support of his motion for additional time to serve process. Pittman filed a response to the motion on July 3, 1997. The lower court denied Bang's motion on October 30, 1997. From this denial, Bang appeals to this Court.
¶ 15. Because the analysis under Issue I will also be applicable to Issue II, these will be discussed together.
¶ 16. Bang alleges that the lower court erred in dismissing his case based upon his failure to serve Pittman within the time designated under M.R.C.P. 4(h) and his failure to show good cause why he did not serve Pittman during the prescribed 120 day period.
¶ 17. Rule 4(h) of the Mississippi Rules of Civil Procedure states:
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.
Rule 4(h) required Bang to serve Pittman with process within 120 days from the filing of the original complaint. Watters v. Stripling, 675 So.2d 1242, 1243 (Miss. 1996). Upon his own admission, Bang did not serve Pittman until 122 days after the complaint was filed. However, Bang did file a motion for additional time to serve process before the expiration of the 120 day period. Because of the failure to serve Pittman within the 120 days, Bang was required to show good cause why Pittman was not timely served. Watters, 675 So.2d at 1243.
¶ 18. A determination of what constitutes "good cause" is a discretionary ruling to be made by the trial court. Rains v. Gardner, 731 So.2d 1192, 1197 (Miss.1999). Review of such a ruling by the trial court is limited to an abuse of discretion and substantial evidence standard. Id.
¶ 19. This Court has stated that "[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 inadvertence or mistake of counsel or ignorance' of the rules usually does not suffice.'" Watters, 675 So.2d at 1243 (quoting Peters v. United States, 9 F.3d 344, 345 (5th Cir.1993) (citations omitted)).
¶ 20. Bang asserts that the lower court erred in not finding good cause because it was obvious from the events that Pittman and his wife were avoiding service of process. Because no transcript of the hearing on Pittman's motion to dismiss was provided to this Court, we are limited to a review of the facts that can be gleaned from the record before us. The complaint was filed on October 25, 1996. The summons was issued by the circuit clerk on October 29, 1996, and returned to Bang's attorney. Nowhere in the record is there any mention of attempted service on Pittman before February 21, 1997.
¶ 21. Bang first attempted to serve Pittman at his office. He placed a call to Pittman's office and was told that he was not there. Bang's process server, Butler, went to Pittman's home...
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