Copiah County Sch. Dist. v. Buckner

• Decision Date: 19 May 2011
• Docket Number: No. 2010–IA–00343–SCT.,2010–IA–00343–SCT.
• Parties: COPIAH COUNTY SCHOOL DISTRICT and Kenneth Funchesv.Charles BUCKNER.
• Court: Mississippi Supreme Court

61 So.3d 162

267 Ed. Law Rep. 951

COPIAH COUNTY SCHOOL DISTRICT and Kenneth Funches

v.Charles BUCKNER.

No. 2010–IA–00343–SCT.

Supreme Court of Mississippi.

May 19, 2011.

Joseph Walter Gill, Rebecca B. Cowan, Jackson, attorneys for appellants.Ramel Lemar Cotton, attorney for appellee.Before CARLSON, P.J., LAMAR and CHANDLER, JJ.CHANDLER, Justice, for the Court:

¶ 1. Charles Buckner filed a personal-injury action against the Copiah County School District and Kenneth Funches.¹ Buckner failed to serve process on either defendant within the 120–day period provided by Mississippi Rule of Civil Procedure 4(h). After the running of the statute of limitations, Buckner moved for an extension of time to effect service of process. The trial court granted the motion, allowing Buckner an additional 120 days to effect service. However, Buckner failed to serve either defendant until after the additional 120–day period had expired. The trial court denied the defendants' motion to set aside the order granting the extension of time and for summary judgment.

¶ 2. This Court granted the defendants' petition for an interlocutory appeal. We find that, because Buckner failed to show good cause or excusable neglect for the failure to effect service within the time provided by Rule 4(h), the trial court abused its discretion by denying the defendants' motion to set aside the order granting an extension of time. Because the limitations period had expired prior to the order granting the extension of time, summary judgment was appropriate. We reverse and render.

FACTS

¶ 3. On October 30, 2007, Buckner filed a complaint against the Copiah County School District, Funches, and John and Jane Does 1–10. Buckner alleged that, on December 15, 2006, Funches, a school-bus driver, had failed to stop the bus at an intersection, and it had collided with Buckner's vehicle, causing damages. Buckner had summonses issued for each defendant on October 30, 2007. However, within 120 days after the complaint had been filed, Buckner had neither served process on the defendants, nor had he requested additional time to effect service.

¶ 4. More than one year after the complaint had been filed, on November 19, 2008, the trial court issued a notice of status hearing requiring Buckner's counsel to appear on January 12, 2009. Prior to the status hearing, Buckner filed an application for a clerk's entry of default against the defendants, along with an affidavit of counsel attesting that the defendants had been served with the summonses and complaint on October 30, 2007. However, in fact, the defendants had not been served.

¶ 5. The record does not include a transcript of the status hearing. But at the later hearing on the defendants' dispositive motion, Buckner's counsel reminded the court of what had occurred at the status hearing. Buckner's counsel stated that service had not occurred during the initial, 120–day period, because the process server erroneously had informed counsel the defendants had been served. However, when counsel checked his case file prior to the status hearing, he discovered that no answer had been filed. Then, he checked the court file and realized that the defendants had not been served. He immediately filed a motion to withdraw the application for default. Buckner's counsel stated that, at the status hearing, the trial court orally had granted his motion for an extension of time to serve the defendants.

¶ 6. Two letters submitted with the defendants' dispositive motion shed further light on how Buckner discovered the failure of service. A letter dated January 15, 2009, from defense counsel to Buckner's counsel communicated that, on the same day, defense counsel had discovered the existence of the lawsuit and that the court file reflected the defendants had not been served. In a January 20, 2009, response letter, Buckner's counsel acknowledged that, when he had filed the application for entry of default, he had believed the defendants had been served.

¶ 7. The record reflects that, on February 3, 2009, the trial court entered an order granting Buckner's ore tenus motion for an extension of time to serve the defendants, and giving Buckner an additional 120 days to effect service of process, or until June 2, 2009. The order did not state whether Buckner had shown good cause for the failure to effect service. A notation on the docket on February 3, 2009, states “Order/Copy Ramel L. Cotton (Additional 120 days to serve the defendants).” However, Buckner did not serve the school district with process until June 4, 2009. He served Funches on June 5, 2009.

¶ 8. Copiah County School District answered on June 17, 2009, and Funches answered on July 2, 2009. In their answers, the defendants asserted that, because Buckner had served them after the expiration of the time provided by Rule 4(h), the complaint was subject to dismissal with prejudice under Mississippi Rule of Civil Procedure 12(b)(4),(5), or (6). Copiah County School District also filed a motion to set aside the order granting extension of time and for summary judgment. It argued that the trial court had abused its discretion by granting Buckner an extension of time, because Buckner had failed to show good cause for his failure to effect service within the initial, 120–day period. Copiah County School District further asserted that summary judgment was appropriate because the statute of limitations applicable to Buckner's claims had expired in November 2008. See Miss.Code Ann. § 11–46–11(3) (Rev.2002). Funches filed a joinder in the school district's motion.

¶ 9. Buckner filed a response to the motion to set aside the extension of time and for summary judgment on July 31, 2009. Buckner asserted that, at the direction of the court, his counsel had prepared and delivered to the court an order granting the extension of time. He stated that, despite due diligence, the date his counsel first had received a copy of the signed order by facsimile was June 4, 2009. In support of this argument, he submitted the affidavit of his counsel's legal assistant, Brenda Jordan. Jordan stated that she had called the clerk's office on numerous occasions regarding the order. Buckner stated that the defendants were served immediately after counsel had received the order.

¶ 10. At the hearing on November 1, 2009, Jordan testified that, soon after she began calling the clerk's office, someone at the clerk's office had informed her that the order had been signed and entered on the docket, and had promised to fax a copy to Jordan. However, Jordan never received the faxed copy. Jordan admitted that she had informed her employer that the order had been signed, but he did not ask her to find out the date it had been signed. Over the next few months, she made several requests for a copy of the order, and finally received a faxed copy on June 4, 2009, two days after the extension of time granted in the order had expired.

¶ 11. On February 8, 2010, the trial court entered an order denying the motion for summary judgment. The order stated, “after conducting a hearing and accepting live testimony [the court] finds that the evidence satisfies the standards required for a finding of excusable neglect and good cause and Plaintiff's service of process under the circumstances should be accepted as proper.” On March 1, 2010, Funches and Copiah County School District filed a petition for interlocutory appeal and for stay of trial court proceedings. This Court granted the petition.

STANDARD OF REVIEW

¶ 12. We review a trial court's decision on whether to set aside an order granting an extension of time for abuse of discretion. Johnson v. Thomas, 982 So.2d 405, 409 (Miss.2008). “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).” Long v. Mem'l Hosp. at Gulfport, 969 So.2d 35, 38 (Miss.2007). We will reverse if the trial court's discretion was abused or its decision was not supported by substantial evidence. Id. We apply de novo review to the grant or denial of a motion to dismiss or a motion for summary judgment. Price v. Clark, 21 So.3d 509, 517 (Miss.2009).

DISCUSSION

WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING THE MOTION TO SET ASIDE ITS ORDER THAT GRANTED BUCKNER AN ADDITIONAL 120 DAYS TO SERVE THE DEFENDANTS WITH PROCESS AND FOR SUMMARY JUDGMENT.

¶ 13. 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.

M.R.C.P. 4(h). Pursuant to Rule 4(h), the trial court was required to dismiss Buckner's complaint unless he showed good cause why service was not made within 120 days. See Long, 969 So.2d at 39. “The rule has also been interpreted to require that, if the defendant is not served within 120 days, the plaintiff must either refile the complaint before the statute of limitations ends or show good cause; otherwise, dismissal is proper.” Webster v. Webster, 834 So.2d 26, 28 (Miss.2002) (citing Watters v. Stripling, 675 So.2d 1242, 1244 (Miss.1996)).

¶ 14. The plaintiff bears the burden to demonstrate good cause for a failure to serve process in a timely manner. Montgomery v. SmithKline Beecham Corp., 910 So.2d 541, 547 (Miss.2005) (citing Holmes v. Coast Transit Auth., 815 So.2d 1183, 1184 (Miss.2002)). “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.’ ” Webster, 834 So.2d at 28 (citing ...