Foss v. Williams
| Decision Date | 25 September 2008 |
| Docket Number | No. 2007-IA-00615-SCT.,2007-IA-00615-SCT. |
| Citation | 993 So.2d 378 |
| Parties | Michael L. FOSS, M.D. v. Dorothy WILLIAMS, Administratrix of the Estate of Peter D. Price, Deceased. |
| Court | Mississippi Supreme Court |
Jason Edward Dare, Greenville, L. Carl Hagwood, Jackson, Bradley Keith Overcash, Greenville, attorneys for appellant.
Everett T. Sanders, attorney for appellee.
EN BANC.
¶ 1. The defendant filed this interlocutory appeal challenging the circuit court's denial of his motion to dismiss for the plaintiff's failure to serve process within 120 days. Finding that the trial court did not err in denying the motion, we affirm.
¶ 2. On July 19, 2006, Dorothy Williams filed a complaint asserting claims of medical malpractice and wrongful death against Northwest Mississippi Orthopaedic Clinic, Clarksdale HMA, Inc., Dr. William M. Barr, and Dr. Michael Foss. All of the defendants, with the exception of Dr. Foss, were served with process within the 120-day time period provided under Mississippi Rule of Civil Procedure 4(h). Dr. Foss was served on November 17, 2006, 121 days after the complaint was filed. On December 12, 2006, Dr. Foss filed a motion to dismiss Williams' complaint for failure to comply with Rule 4(h). After a hearing, the trial court entered an order denying the motion to dismiss, finding that Williams had demonstrated good cause for failing to serve the defendant within the required time period.
¶ 3. Dr. Foss argues that the trial court erred in denying his motion to dismiss because the plaintiff did not demonstrate good cause for failure to comply with Mississippi Rule of Civil Procedure 4(h). This rule provides:
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.
¶ 4. "Good cause" is a finding of fact "entitled to deferential review of whether the trial court abused its discretion and whether there was substantial evidence supporting the determination." LeBlanc v. Allstate Ins. Co., 809 So.2d 674, 676 (Miss.2002) (quoting Rains v. Gardner, 731 So.2d 1192, 1196 (Miss.1999)).
¶ 5. During the hearing, plaintiff's counsel argued that he had good cause for missing the deadline because he had associated local counsel whom he believed was responsible for serving process. The local attorney failed to initiate service, and the plaintiff's counsel did not learn of the failure until 118 days after the complaint was filed. At that time, he immediately sought to have the defendants served. The local counsel later withdrew from the case. The trial judge found that these facts were sufficient to demonstrate good cause.
¶ 6. In order to establish that good cause exists for late service, a plaintiff must have made a diligent effort to effect service. Montgomery v. SmithKline Beecham Corp., 910 So.2d 541, 546 (Miss.2005). This Court has recognized several instances where good cause exists: when 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. Holmes, 815 So.2d at 1186 (quoting 4B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1137, at 342 (3d ed.2000)).
¶ 7. The defendant argues that Williams did not demonstrate "a diligent effort" because she waited until the 119th day to attempt service. The defendant cites Powe v. Byrd, 892 So.2d 223 (Miss.2004), and Bang v. Pittman, 749 So.2d 47 (Miss. 1999), where this Court held that plaintiffs were not diligent in their efforts because they waited until the last days to comply with Rule 4(h). These cases are distinguishable because Williams' failure to timely serve Dr. Foss was caused by the actions of the local attorney who later withdrew from the case. See Holmes, 815 So.2d at 1186. Upon learning of co-counsel's failure, Williams took immediate action and served the other three defendants within the 120 day time period.
¶ 8. The defendant also relies on Bacou-Dalloz Safety, Inc. v. Hall, 938 So.2d 820 (Miss.2006), to argue that dismissal was warranted. In that case, the plaintiffs first served the summons and complaint on the wrong agent, but were notified of this mistake within the 120-day time period. Id. at 821. The plaintiffs finally served a second amended complaint 499 days after the 120-day deadline had expired and one year and five months after learning that they had effected service on the wrong agent. Id. at 822-23. The delay in Bacou-Dalloz was significantly longer than the one day delay in the present case.
¶ 9. Finally, Dr. Foss argues that the standard of review is de novo and not abuse of discretion because the issue was whether to grant an extension of time. To be sure, "a decision to grant or deny an extension of time based upon a question of law will be reviewed de novo." Id. (citing Rains, 731 So.2d at 1198). However, the trial court in this case did not grant an extension of time; it simply ruled that it would not dismiss Williams' complaint with respect to Dr. Foss based on its finding that good cause existed for Williams' failure to serve process timely. While Williams did file a motion for an extension of time after the denial of Dr. Foss's motion to dismiss and after process had been served, the trial court did not have an opportunity to make a ruling. This Court cannot consider a motion which the trial court has not had an opportunity to consider. Even if the issue were whether an extension was warranted, the trial court's ruling was not based on a question of law. The dismissal of Dr. Foss' motion was based on the court's fact-based finding that the miscommunication between Williams' attorneys about who was responsible for serving the defendants constituted good cause.
¶ 12. With the utmost respect for my colleagues in the majority, I dissent because today's decision strays from stare decisis.
¶ 13. The relevant facts of this case necessary for disposition of today's appeal are for the most part undisputed. On July 19, 2006, Dorothy Williams, as Administratrix of the Estate of Peter D. Price, deceased, filed a complaint in the Circuit Court of Coahoma County, asserting claims of medical malpractice and wrongful death against Northwest Mississippi Orthopaedic Clinic, Clarksdale HMA, Inc. d/b/a Northwest Mississippi Regional Medical Center, Dr. William M. Barr, and Dr. Michael Foss. Notwithstanding the fact that process was not issued for service upon the defendants until November 15, 2006, all the defendants except Dr. Foss were served with process within 120 days after the filing of the complaint. Dr. Foss was not served with process until November 17, 2006, which was 121 days after the filing of the complaint. On December 12, 2006, Dr. Foss, through counsel, filed his "Special Appearance Motion to Dismiss," requesting that the trial court dismiss Williams's complaint against him for failure to comply with Mississippi Rule of Civil Procedure 4(h), since Dr. Foss was served one day after the 120-day deadline.
¶ 14. On March 15, 2007, Coahoma County Circuit Court Judge Albert B. Smith, III, conducted a hearing concerning Dr. Foss's Motion to Dismiss, wherein the following discussion ensued:1
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BY [FOSS'S COUNSEL]: Your Honor, I've had no response as far...
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