Booth v. Williams

• Decision Date: 16 August 2016
• Docket Number: NO. 2015-CA-00346-COA,2015-CA-00346-COA
• Citation: 200 So.3d 1053
• Parties: Myrtle Booth, as Executrix of the Estate of Gladys Gardner, Deceased, Individually, and on Behalf of the Wrongful Death Beneficiaries of Gladys Gardner, Appellant v. Steven C. Williams, M.D., Southwest Surgical Specialists, LLC and William N. Dixon, M.D. D/B/A W.N. Dixon MD, PA, Appellees
• Court: Mississippi Court of Appeals

200 So.3d 1053

Myrtle Booth, as Executrix of the Estate of Gladys Gardner, Deceased, Individually, and on Behalf of the Wrongful Death Beneficiaries of Gladys Gardner, Appellant

v.Steven C. Williams, M.D., Southwest Surgical Specialists, LLC and William N. Dixon, M.D. D/B/A W.N. Dixon MD, PA, Appellees

NO. 2015-CA-00346-COA

Court of Appeals of Mississippi.

August 16, 2016

JANESSA EMONTAN BLACKMON, FOR APPELLANT

GEORGE F. BLOSS III, J. ROBERT RAMSAY, MARY MARGARET KUHLMANN, FOR APPELLEES

BEFORE LEE, C.J., CARLTON AND FAIR, JJ.

CARLTON

, J., FOR THE COURT:

¶1. Myrtle Booth, as executor of Gladys Gardner's estate, filed a wrongful-death lawsuit against Dr. Steven C. Williams, Southwest Surgical Specialists LLC, and Dr. William N. Dixon d/b/a W.N. Dixon MD, PA (collectively, the Defendants). The Pike County Circuit Court granted the Defendants' motion to dismiss Booth's complaint, and Booth appeals.

¶2. The critical question before this Court is whether the circuit court abused its discretion by setting aside its two previous orders that granted Booth extensions of time to effectuate service of process. Upon review, we find no abuse of discretion by the circuit court in setting aside its prior order granting Booth's second request for an extension. We therefore affirm the judgment of the circuit court. In so doing, we affirm the circuit court's grant of the Defendants' motion to dismiss with prejudice under Mississippi Rule of Civil Procedure 12(b)(6)

since the applicable statute of limitations expired without timely service of process in accordance with Mississippi Rule of Civil Procedure 4(h).¹

FACTS

¶3. According to Booth's complaint, the decedent, Gardner, consulted Dr. Dixon to schedule a date to remove her feeding tube. Instead of scheduling the procedure for another date, however, the complaint alleged that Dr. Dixon removed the feeding tube during Gardner's visit without obtaining Gardner's consent. The complaint further stated that, after Dr. Dixon removed the feeding tube, Gardner developed a blockage in her bowels. Gardner subsequently went to Southwest Regional Medical Center, where Dr. Williams performed surgery to remove the blockage. On December 24, 2011, Gardner underwent a second surgery at St. Dominic Hospital to repair a blockage in her bowels. On February 9, 2012, Gardner died.

¶4. On January 6, 2014, Booth filed a wrongful-death lawsuit against the Defendants. Pursuant to Rule 4(h)

, Booth possessed until May 6, 2014, or 120 days from the time she filed her complaint, to serve the Defendants with process. See M.R.C.P. 4(h). On April 22, 2014, prior to the 120-day deadline to effectuate service of process, Booth filed an ex parte motion asking the circuit court to grant her a 120-day extension to serve process. On April 30, 2014, the circuit court entered an order granting Booth's request and extending Booth's deadline by 120 days until September 3, 2014. The record reflects that the circuit court granted this first extension within the initial 120-day deadline provided by Rule 4(h) for service of process.

¶5. Then, on August 28, 2014, Booth filed a second ex parte motion for an extension and requested an additional sixty days to serve the Defendants with process. The record reflects that Booth filed the motion seeking the second extension within the time extension previously granted by the circuit court. The circuit court again granted Booth's motion. As stated, the first extension expired on September 3, 2014. On September 9, 2014, Booth served Dr. Dixon. Two days later, on September 11, 2014, she served Dr. Williams and Southwest Surgical Specialists.

¶6. On October 8, 2014, Dr. Dixon filed a motion to dismiss Booth's complaint. Dr. Williams and Southwest Surgical Specialists joined Dr. Dixon's dismissal motion. The Defendants argued that Booth failed to show good cause for her failure to serve them with process within the time provided by Rule 4(h)

. In addition, the Defendants asserted that Booth never even attempted to have summonses issued against them until August 21, 2014, at which point they contended that the statute of limitations had already expired.

¶7. On January 22, 2015, Booth filed a response to the Defendants' motion to dismiss. The circuit court then heard the Defendants' motion to dismiss on January 26, 2015. At the hearing, Booth's attorney, Janessa Blackmon, explained that Booth had hired Chestnut Law Firm (Chestnut), a Florida-based firm, to represent her. Blackmon further stated that Chestnut associated Blackmon's firm as local Mississippi counsel on the case. After filing Booth's lawsuit, Blackmon claimed that her firm had a difference of opinion with Chestnut. As a result, prior to the 120-day service-of-process deadline, Blackmon stated that her firm informed Chestnut of its intention to withdraw from the matter. However, the record reflects that Blackmon's firm never filed a motion to withdraw in the circuit court.

¶8. According to Blackmon, Chestnut promised to enter an appearance in the case and associate other local counsel to represent Booth. However, Blackmon asserted that Chestnut never fulfilled either of these promises. Due to Chestnut's repeated assurances, Blackmon asserted that her firm withheld from serving process on the Defendants. After Chestnut's continued inaction in the matter, though, Blackmon said her firm took steps to obtain the two extensions for the time period to effect service of process on the Defendants.

¶9. After hearing the motion to dismiss, the circuit court ruled in favor of the Defendants and set aside its two prior orders extending time for service of process. The circuit court found that the 120-day period for service of process provided by Rule 4(h)

expired on May 6, 2014. Following the expiration of the 120 days, the circuit court determined that the remaining time under the relevant statute of limitations recommenced but then expired “by or before August 3, 2014.” The circuit court further concluded that no good cause existed for either of Booth's requested extensions because she failed to show that she made a diligent effort to timely effectuate service. The circuit court found that Booth never even requested that the circuit court clerk issue service of process until August 21, 2014, or over seven months after filing her complaint. The circuit court concluded that, “since there was not even an attempt to have process issued by the [C]lerk of the Court prior to the relevant period expiring, ... the extensions were improvidently and improperly granted ....”

¶10. Based on its findings, the circuit court determined that it would be an abuse of discretion to not set aside the April 30, 2014 and August 28, 2014 orders granting Booth the extensions for service of process. The circuit court therefore set aside the two prior orders and dismissed with prejudice Booth's complaint against the Defendants. Aggrieved by the circuit court's dismissal of her complaint, Booth appeals.

STANDARD OF REVIEW

¶11. Mississippi caselaw establishes the following:

[Appellate courts] review a trial court's decision on whether to set aside an order granting an extension of time for abuse of discretion. [The appellate c]ourt 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)

. [The appellate court] will reverse if the trial court's discretion was abused or its decision was not supported by substantial evidence. [Appellate courts] apply de novo review to the grant or denial of a motion to dismiss ....

Copiah Cty. Sch. Dist. v. Buckner , 61 So.3d 162, 165–66 (¶ 12) (Miss.2011)

(internal citations and quotation marks omitted).

¶12. We also acknowledge that, in the interest of judicial economy, it is customary practice for this Court “to affirm a decision of the circuit court that reached the right result, but for the wrong reason.” Flowers v. State , 978 So.2d 1281, 1285 (¶ 13) (Miss.Ct.App.2008)

(citing Jackson v. State , 811 So.2d 340, 342 (¶ 6) (Miss.Ct.App.2001) ).

DISCUSSION

¶13. On appeal, Booth asserts that the circuit court erroneously granted the Defendants' motion to dismiss. According to Booth, she showed cause to support her first requested extension of the service-of-process deadline and then showed good cause to support her second extension request. Booth therefore asks this Court to reverse the circuit court's judgment.

¶14. In Nelson v. Baptist Memorial Hospital – North Mississippi Inc. , 972 So.2d 667, 670–71 (¶¶ 8–9) (Miss.Ct.App.2007)

, this Court stated:

Rule 4(h)

requires a plaintiff to serve the summons and complaint on a defendant within 120 days of filing a complaint; otherwise, the judge must dismiss the action without prejudice. Under Mississippi Rules of Civil Procedure Rule 6(b), a court may extend the time a party has to act (1) for cause shown, if within the initial time period , or (2) upon a finding of excusable neglect after the expiration of the time period. A court may grant an extension of time under Rule 6(b), if within the initial 120[-]day time period, without motion and without notice. Accordingly, a judge may grant an extension of time to serve process under Rule 4(h) prior to the expiration of the original 120 days for service without a showing of good cause. Only after the expiration of the original 120 days must the plaintiff show good cause to receive an extension of time to serve process. An application under Rule 6(b)(1) normally will be granted in the absence of bad faith or prejudice to the adverse party.

Assuming proper service of process, filing a complaint tolls the statute of limitations until a suit's dismissal. The date a plaintiff files an action is the relevant date for statute of limitation purposes, taking into consideration extensions of time to serve process.

(Internal citations and quotation marks omitted) (emphasis added).

¶15. Mississippi caselaw recognizes that “[t]he plaintiff bears the burden to...