Graceland Care Ctr. of New Albany, LLC v. Hamlet ex rel. Kinard

• Decision Date: 17 August 2017
• Docket Number: NO. 2015-IA-01829-SCT,2015-IA-01829-SCT
• Parties: GRACELAND CARE CENTER OF NEW ALBANY, LLC, ADVANCED HEALTHCARE MANAGEMENT, INC., KAREN CLAYTON, IN HER OFFICIAL CAPACITY AS ADMINISTRATOR OF GRACELAND CARE CENTER OF NEW ALBANY, W. LARRY OVERSTREET AND SHARON WINDHAM v. TERESA HAMLET, ON BEHALF OF JIMMY KINARD, DECEASED
• Court: Mississippi Supreme Court

GRACELAND CARE CENTER OF NEW ALBANY, LLC, ADVANCED HEALTHCARE
MANAGEMENT, INC., KAREN CLAYTON, IN HER OFFICIAL CAPACITY AS
ADMINISTRATOR OF GRACELAND CARE CENTER OF NEW ALBANY, W. LARRY
OVERSTREET AND SHARON WINDHAM
v.
TERESA HAMLET, ON BEHALF OF JIMMY KINARD, DECEASED

NO. 2015-IA-01829-SCT

SUPREME COURT OF MISSISSIPPI

August 17, 2017

DATE OF JUDGMENT: 11/17/2015

TRIAL JUDGE: HON. JOHN KELLY LUTHER

TRIAL COURT ATTORNEYS: T. K. MOFFETT ANDY LOWRY THOMAS L. KIRKLAND, JR.

COURT FROM WHICH APPEALED: UNION COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANTS: ANDY LOWRY THOMAS L. KIRKLAND, JR.

ATTORNEYS FOR APPELLEE: RICHARD SHANE McLAUGHLIN NICOLE H. McLAUGHLIN

NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE

DISPOSITION: AFFIRMED AND REMANDED - 08/17/2017

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

KING, JUSTICE, FOR THE COURT:

¶1. Teresa Hamlet filed a motion for an extension of time to serve process, prior to the expiration of the 120-day deadline provided by Mississippi Rule of Civil Procedure 4(h). The

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trial judge granted the motion and signed an order, yet the order was not filed with the circuit clerk until the day before the granted extension expired, well after the expiration of the original, 120-day deadline. Hamlet served process on three defendants during the extension. On the same day the order was filed, Hamlet filed a second motion for time, which the trial court also granted. While Hamlet served process on the remaining defendants within the second extension period, the order granting the second extension was not filed with the clerk until three months after it was signed by the judge.

¶2. The defendants filed a motion to dismiss Hamlet's complaint, arguing that the statute of limitations had run before the court's order granting additional time to serve process had been entered by the clerk of court. The defendants further argued that Hamlet's suit could not be revived by the untimely filed order. The trial court denied the defendants' motion to dismiss. Because Hamlet was the only party to the action, we find that the trial judge's order granting her motion for extension of time to serve process became effective once the order had been signed and had left the trial judge's control. Accordingly, we affirm the decision of the trial court. However, in cases where more than one party is involved, notice becomes essential. Therefore, in cases involving multiple parties, we adopt the holding of the majority of states that require the entry of an interlocutory order before it becomes effective.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

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¶3. Jimmy Kinard died on September 23, 2012.¹ On October 17, 2014, Teresa Hamlet, Kinard's sister, filed suit against Graceland Care Center of New Albany, LLC; Advanced Healthcare Management, Inc.; Karen Clayton, in her official capacity as administrator of Graceland Care Center of New Albany; W. Larry Overstreet; Sharon Windham; and John Does 1-10, jointly and individually (collectively referred to as "Graceland"). Hamlet alleged that Graceland's negligence was the proximate cause of Kinard's death.

¶4. The 120-day deadline to serve process as provided under Rule 4(h) of the Mississippi Rules of Civil Procedure would have expired on February 14, 2015. On February 13, 2015, Hamlet filed a Motion to Extend Time to Serve Process.

¶5. On February 23, 2015, the trial judge signed an order granting Hamlet sixty days from February 14, 2015, to serve process on the defendants. However, the order was not entered by the clerk of the court until April 14, 2015, one day prior to the expiration of the sixty-day extension.

¶6. Hamlet served three defendants on April 14, 2015. On that same day, Hamlet filed a Second Motion to Extend Time to Serve Process, arguing that, while her deadline to serve defendants "will run on or about April 15, 2015," process to defendants remained incomplete. On April 16, 2015, the trial judge signed the order granting Hamlet's second motion for extension of time to serve process, allowing Hamlet an additional sixty days from

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April 15, 2015, to serve process on the defendants. The circuit court clerk did not enter this order until July 14, 2015.

¶7. The following time line illustrates the pertinent dates:

Sept. 23, 2012	Jimmy Kinard passed away (statute of limitations begins to; run).
July 25, 2014	Notice of claim sent to Graceland, tolling statute of; limitations for sixty days per Miss. Code Ann. § 15-1-36.
Sept. 23, 2014	Earliest date Hamlet could file suit under Section 15-1-36.
Oct. 17, 2014	Complaint filed.; 120-day period to serve process begins, expiring February; 14, 2015.
Feb. 13, 2015	Hamlet files motion for additional sixty days to serve; process within the 120-day period.
Feb. 23, 2015	Court grants Hamlet's motion for an additional sixty days; to serve process from February 14 until April 15 ("first; extension order").
Mar. 22, 2015	Graceland argues that the statute of limitations expires.
Apr. 14, 2015	Clerk enters first extension order.; Hamlet perfects service on Karen Clayton, Graceland Care; Center, and W. Larry Overstreet.; Hamlet files second motion for time.
Apr. 15, 2015	Sixty-day period under the first extension order expires.
Apr. 16, 2015	Court grants Hamlet's second motion for an additional; sixty days to serve process from April 15 until June 15; ("second extension order").; Hamlet perfects service on Advanced Healthcare; Management, Inc.

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May 15, 2015	Graceland files motion to dismiss.
July 14, 2015	Clerk enters second extension order.

¶8. Graceland filed a Motion to Dismiss, contending that the statute of limitations had run before the April 14, 2015, order extending time was entered. Graceland argued that Hamlet failed to serve timely process within 120 days after filing her complaint, and therefore, the statute of limitations resumed after the 120 days. Initially, Graceland argued that Hamlet had failed to show "good cause" in her motion for extension, which would have satisfied Mississippi Rule of Civil Procedure 4(h).² Graceland, however, acknowledged that Hamlet likely would contend that, where a motion for time is filed prior to the expiration of the 120 days, the standard of Mississippi Rule of Civil Procedure 6(b) applies. See Cross Creek Prods. v. Scafidi, 911 So. 2d 958 (Miss. 2005).³

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¶9. Graceland's argument against applying Rule 6(b) was twofold. First, Graceland argued that Scafidi did not involve the statute-of-limitations tolling rule. Second, Graceland argued that Hamlet's failure to secure an order before the 120-day deadline expired made a showing of good cause necessary. Graceland noted that the Scafidi Court did not reveal when the trial court entered its order granting an extension of time to serve process. Because the 120-day deadline had expired without Hamlet securing a signed and filed order extending the time to serve process, it averred that there should be a requirement that Hamlet show good cause after the 120-day deadline expired.

¶10. In response, Hamlet argued that the Scafidi Court specifically held that motions for time filed during the 120-day deadline do not require a showing of good cause. Id. at 960 ("[T]his finding is specifically limited to those situations where the motion for additional time is filed before the deadline.") (emphasis added). Because she filed her motion for an extension of time to serve process within the 120-day deadline, Hamlet argued that a showing of good cause was not necessary.

¶11. The trial court held a hearing on the motion, at which Graceland argued that an order does not become effective until it is filed with the clerk and all parties are put on notice. Graceland admitted this was a case of first impression but likened an interlocutory order to

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a judgment not being effective until it is filed. Graceland argued that, while a statute of limitations could be extended by a court, it could not be resurrected. Graceland also contended that the mere filing of a motion for time did not toll the statute of limitations. Moments before the trial court's ruling, Graceland's counsel stated that "prejudice might be relevant to the issue [if] we are [sic] showing good cause[,] but we conceded that it's not. This is an issue of statute of limitations, Your Honor." Because the statute of limitations had run prior to the April 14, 2014, order being filed with the clerk, Graceland prayed that the court would dismiss the action.

¶12. Hamlet's attorney acknowledged that the signed order from the judge "may have spent longer in my office than it should have. . . ." However, Hamlet argued that the law did not require a party to secure and file an order within the initial 120-day period in order to receive an extension. Hamlet stated that Graceland Care Center was served on April 14, 2015, the same day the order granting the extension was filed and within the extension allowed by the order. Also, Hamlet argued that no caselaw supported Graceland's assertion that the order was not effective until it was entered by the court.

¶13. After considering oral argument and documentary evidence, the trial court confirmed with the parties that "[t]he question of reasonableness, good cause shown is not an issue. . . ." Neither party objected. The trial court next recognized that no caselaw on point would direct him to dismiss this case and that dismissals were not favored. As such, the trial court denied the motion.

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¶14. Graceland timely filed this interlocutory appeal. On appeal, Graceland raises three issues. First, Graceland argues that an order is effective only upon filing with the clerk. Second, Graceland claims that a motion filed within the 120-day period under Rule 4(h) is insufficient to resurrect the statute of limitations where the order granting the motion is filed after the statute of limitations runs. Third, Graceland argues that this Court should reconsider and overrule Scafidi.

¶15. Hamlet raises two...