Crumpton v. Hegwood, 98-IA-00179-SCT.

• Decision Date: 12 August 1999
• Docket Number: No. 98-IA-00179-SCT.,98-IA-00179-SCT.
• Parties: Cecil CRUMPTON v. Mary J. (Fay) HEGWOOD.
• Court: Mississippi Supreme Court

740 So.2d 292

Cecil CRUMPTON v. Mary J. (Fay) HEGWOOD.

No. 98-IA-00179-SCT.

Supreme Court of Mississippi.

August 12, 1999.

Thomas C. Anderson, William A. Whitehead, Jr., Hattiesburg, Attorneys for Appellant. Joseph E. Roberts, Jr., Jackson, Attorney for Appellee.

EN BANC.

BANKS, Justice, for the Court:

¶ 1. This is an interlocutory appeal which presents three legal questions to this Court: (1) whether the applicable statute of limitations had run prior to a request for an extension of time in which to effect service; (2) if so, whether the order extending time to effect service revives the cause of action; and (3) whether the motion was untimely and facially invalid. We conclude that the motion was timely and facially sufficient. We further conclude that the statute of limitations had not run in this case. However, because there was no record finding of excusable neglect and good cause to support the order granting the extension, we vacate the order and remand this matter to the trial court for further proceedings.

I.

¶ 2. On November 14, 1994, Mary J. Hegwood ("Hegwood") filed a complaint against Cecil Crumpton ("Crumpton") arising out of an automobile accident which occurred on November 15, 1991. Process was issued that same day, but was not served on Crumpton within 120 days of filing suit as required by M. R.C.P. 4(h). On August 21, 1996, Hegwood filed a Motion for Additional Time to Serve Defendant, citing "inadvertence and excusable neglect" as the basis for her failure to timely serve Crumpton.

¶ 3. The trial judge granted Hegwood an additional 60 days to serve process on August 21, 1996, and process was served on October 21, 1996. On February 14, 1997, Crumpton filed a motion for summary judgment based on the running of the three-year statute of limitations, which the trial judge denied. Aggrieved, Crumpton sought and was granted an interlocutory appeal before this Court.

II.

¶ 4. Three of Crumpton's points of error are related and will accordingly be addressed collectively. Crumpton first asserts that the limitations period begins to run again if service of process is not made upon defendant within 120 days after filing of the complaint as required by Rule 4(h) of the M.R.C.P. He next alleges that the motion for additional time to serve defendant with process filed over seventeen months after the limitations period does not revive the cause of action. Crumpton further asserts that the Hegwood's motion for additional time to serve defendant with process was untimely and facially invalid.

a.

¶ 5. The trial judge granted Hegwood's motion for additional time based on M.R.C.P. 6(b), which provides in pertinent part that:

When by these rules or by notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion ... (2) upon motion made after the expiration of the specified period permit the act to be done where failure to act was the result of excusable neglect....

The comment to Rule 6(b) states that in cases in which the application for additional time is made after the expiration of the applicable time period, "the only cause for which extra time can be allowed is `excusable neglect.'"

¶ 6. As to facial sufficiency, the question is whether an allegation of inadvertence and excusable neglect is sufficient to meet the "good cause" standard for purposes of our notice pleading practice.

¶ 7. M.R.C.P. 4(h) requires service of the summons and complaint within 120 days of filing of the complaint or the action shall be dismissed without prejudice unless "good cause" can be shown as to why service was not made within that period. This Court has held that a mere allegation of inadvertence does not suffice to meet the requirement for a good cause showing. Watters v. Stripling, 675 So.2d 1242, 1243 (Miss.1996). Therefore, Hegwood's allegation of inadvertence as reason for her delay in service does fail facially. However, there was also an allegation of excusable neglect by Hegwood, which is not facially invalid. In assessing the good cause standard, we have concluded that good cause means at least excusable neglect, which would suggest that excusable neglect is not necessarily less than good cause. See Watters675 So.2d at 1243; Fortenberry v. Memorial Hosp. at Gulfport, Inc., 676 So.2d 252, 256 (Miss.1996). Other courts have found that the good cause standard is as strict as that of excusable neglect and that it would seem that at least as much as would be required to show excusable neglect would be required for good cause. See, e.g., Winters v. Teledyne Movible Offshore, Inc., 776 F.2d 1304, 1306 (5th Cir. 1985)

; Motsinger v. Flynt, 119 F.R.D. 373, 376 (M.D.N.C.1988). We, therefore, conclude that the assertion of excusable neglect in this case is sufficient to cover good cause under our notice pleading standard. M.R.C.P. 7(b), 8(a) and 8(e)(1), and that the motion was facially sufficient.

b.

¶ 8. Given the fact that the motion is facially sufficient, we must assume for present purposes that good cause was shown in that the trial court granted the motion for an extension of time. Crumpton asserts that the trial court erred in failing to dismiss the suit based on the running of the three-year statute of limitations and based on Hegwood's failure to serve process for nearly two years after filing suit. The question, then, becomes whether the order extending time for service revives the cause of action.

¶ 9. Under the Mississippi Rules of Civil Procedure, an action is commenced by the filing of a complaint. M.R.C.P. 3(a). The comment to Rule 3(a) provides that the purpose of filing the complaint is to establish a precise date for fixing the commencement of a civil action. The comment to the rule goes on to state that service is not essential to the commencement of the action. M.R.C.P. 3(a) and 4(h), which provides a 120-day period for service of process, thus operate to the extent that the commencement date of the action is the date of filing, and that date obtains for statute of limitations purposes whenever the action is not dismissed, including those instances in which the action would have been dismissed but for an extension of time. The extension allowed under Rule 4(h) serves to save the action when there is no service effected within the 120 days.

¶ 10. We recognized that the filing of the complaint tolls the statute of limitations in Watters v. Stripling, 675 So.2d 1242, 1243-44 (Miss.1996). We held that pendency of suit tolls the period for 120 days...