Lucas v. Baptist Memorial Hosp.

• Decision Date: 02 December 2008
• Docket Number: No. 2007-CA-00980-COA.,2007-CA-00980-COA.
• Citation: 997 So.2d 226
• Parties: Thomas LUCAS, Kathleen Lucas Munn, James L. McNeill, Michelle McNeill Ciaccio and Matthew McNeill, Individually, and On behalf of the Estate of Jane Lucas, Appellants v. BAPTIST MEMORIAL HOSPITAL-NORTH MISSISSIPPI, INC., Appellee.
• Court: Mississippi Court of Appeals

997 So.2d 226

Thomas LUCAS, Kathleen Lucas Munn, James L. McNeill, Michelle McNeill Ciaccio and Matthew McNeill, Individually, and On behalf of the Estate of Jane Lucas, Appellants v. BAPTIST MEMORIAL HOSPITAL-NORTH MISSISSIPPI, INC., Appellee.

No. 2007-CA-00980-COA.

Court of Appeals of Mississippi.

December 2, 2008.

John G. Holaday, Peter Thomas Martin, Aberdeen, attorneys for appellants.

Michael N. Watts, Oxford, Jonathan S. Masters, Clarksdale, attorneys for appellee.

Before KING, C.J., BARNES and ISHEE, JJ.

BARNES, J., for the Court.

¶ 1. On February 7, 2007, the Circuit Court of Lafayette County granted a motion to dismiss filed by Baptist Memorial Hospital-North Mississippi (BMH-NM). Thomas Lucas now appeals, asserting that it was error for the trial court to grant BMH-NM's motion to dismiss and deny Lucas's motion to alter or amend the judgment. We find no error and affirm the trial court's judgment.

FACTS

¶ 2. On September 20, 2001, Jane Lucas was admitted to BMH-NM in Oxford, Mississippi for a lung biopsy. Following the outpatient procedure, Mrs. Lucas's lungs filled with blood, allegedly due to complications with her prescription medication, and she died that same day. On or about December 31, 2002, her husband, Lucas, filed a medical negligence action against BMH-NM in the Circuit Court of Pontotoc County.¹ Lucas filed an amended complaint on or about April 29, 2003. At that time, Lucas also filed a motion for additional time to serve process in order to obtain requested medical records. The motion was granted by the trial court on or about April 28, 2003, and the order was filed with the court on May 1, 2003, granting Lucas an additional 120 days in which to serve process.²

¶ 3. The record reflects that a summons was issued on April 29, 2003; however, there is no evidence that the summons was ever served upon BMH-NM, or upon its representatives. Lucas later sent a copy of the summons and complaint to CT Corporation on October 1, 2003, via certified mail, which was rejected due to a discrepancy with the name of the defendant.³ Lucas ultimately served process on BMH-NM on or about November 7, 2003. On November 24, an attorney for BMH-NM returned the acknowledgment of receipt of summons and complaint. On December 15, BMH-NM filed its answer to the complaint asserting various defenses, among which included: (1) venue was improper; (2) BMH-NM had been improperly identified as "Baptist Memorial Hospital"; and (3) Lucas failed to serve process within 120 days of filing the complaint. A motion to dismiss for improper venue, or in the alternative, transfer of venue, was filed on January 20, 2004.⁴ An order transferring venue to Lafayette County, Mississippi was entered on February 3, 2005.

¶ 4. BMH-NM filed a motion to dismiss on August 20, 2004, asserting insufficiency of process and expiration of the statute of limitations.⁵ A hearing was held on July 22, 2005, on BMH-NM's motion to dismiss. The motion to dismiss was granted, with prejudice, on February 7, 2007. Lucas submitted a motion to alter or amend judgment on May 1, 2007, which was denied. Lucas now appeals the trial court's dismissal.

I. Whether the trial court erred in granting BMH-NM's motion to dismiss and entering a final judgment.

¶ 5. When reviewing a trial court's grant or denial of a motion to dismiss, this Court employs a de novo standard of review. Blakeney v. Warren County, 973 So.2d 1037, 1039(¶ 11) (Miss.Ct.App.2008). We will address Lucas's arguments below.

a. Lucas timely served process on BMH-NM within the applicable statute of limitations and asserted good cause for not serving process within the 120-day time limit as required under Mississippi Rule of Civil Procedure 4(h).

¶ 6. Lucas admits that process was not served on BMH-NM during the 120-day time period as set forth under Rule 4(h) of the Mississippi Rules of Civil Procedure, which states:

(h) 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.

(Emphasis added). Nor was process served within the additional 120-day time period granted by the trial court. However, Lucas asserts that he had "good cause" for not meeting the deadline for service of process. Lucas states that he attempted to serve BMH-NM in April 2003. In addition, counsel for Lucas was experiencing "severe difficulties within his practice" that prevented him from obtaining process sooner. Lucas also argues that, based on the court's finding of good cause for the additional 120 days after original complaint and BMH-NM's acknowledgment of service of process (dated November 2003), the trial court's dismissal should be overruled.

¶ 7. Lucas had two time periods in which he might have effectively served process following the filing of the complaint. The first period was from December 31, 2002, to April 30, 2003. The next period, which was granted by the trial court on April 28, 2003, was from that date until August 28, 2003. Lucas failed to serve process during either period. Lucas, in fact, did not even have a summons issued until April 29, 2003. That summons was never served on BMH-NM or any of its representatives. Lucas attempted service on October 22, 2003, by sending a copy of the summons and complaint to BMH-NM's registered agent, CT Corporation. This summons was rejected by CT Corporation as having an incorrect name listed for the defendant.⁶ BMH-NM finally received service of process on November 7, 2003, seventy-one days after the extended time limit had expired. Based on these facts, we agree with the trial court that Lucas failed to serve process upon BMH-NM within either the original or extended time periods. Accordingly, we turn to whether Lucas demonstrated "good cause" as required under Rule 4(h).

¶ 8. In order to establish "good cause," Lucas is required to at least show "excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice." Watters v. Stripling, 675 So.2d 1242, 1243 (Miss.1996). We review a trial court's determination of whether good cause "exists on an abuse of discretion standard, deferring to the trial court when substantial evidence supports the determination." Heard v. Remy, 937 So.2d 939, 944(¶ 21) (Miss.2006).

¶ 9. We first look to the trial judge's finding of good cause in his order granting additional time to serve defendants with process. Lucas requested additional time in order to obtain medical records and information, and he stated that some of the delay was a result of actions by BMH-NM. The trial judge stated that "good cause exists for [Lucas] to have additional time during which to amend [the] complaint and to obtain service of process of the amended complaint upon all the Defendants."

¶ 10. Although Lucas points to the trial judge's finding of good cause in April 2003 as one reason why BMH-NM's motion to dismiss should have been denied, we do not find it relevant to the facts at hand. Even assuming there was foundation for good cause for the extension, Lucas failed to show good cause for why service was not made in the 120 days following the extension. "[N]o concrete rule in Mississippi law" exists that states that "good cause automatically will be found lacking when a plaintiff completely fails to cause a summons to issue for a defendant or does not attempt at all to serve a defendant within 120 days of the filing of her lawsuit." Long v. Mem'l Hosp. at Gulfport, 969 So.2d 35, 40(¶ 12) (Miss.2007). However, counsel's heavy caseload during that period does not establish good cause for failure to serve process. "This excusable neglect standard is a very strict standard." Moore v. Boyd, 799 So.2d 133, 136(¶ 7) (Miss.Ct.App.2001). A plaintiff must be diligent to serve process within 120 days. LeBlanc v. Allstate Ins. Co., 809 So.2d 674, 677(¶ 14) (Miss.2002); see also Heard, 937 So.2d at 944(¶ 21) (continuing failure to attempt service of process for four months, without adequate explanation, shows a lack of diligence beyond excusable neglect.). "`Good cause' can never be demonstrated where [the] plaintiff has not been diligent in attempting to serve process." Montgomery v. SmithKline Beecham Corp., 910 So.2d 541, 545(¶ 13) (Miss.2005).

¶ 11. Regarding BMH-NM's acknowledgment of process, the Mississippi Supreme Court has stated that "even actual knowledge of a suit does not excuse proper service of process." Mansour v. Charmax Indus. Inc., 680 So.2d 852, 855 (Miss.1996). This Court stated in Young v. Sherrod, 919 So.2d 145, 148(¶ 12) (Miss.Ct.App.2005), that "[s]ervice by mail on an in-state defendant is complete when the defendant returns the acknowledgment within twenty days"; however, we do not find such acknowledgment a waiver of any affirmative defenses. Although BMH-NM acknowledged receipt of service, we have found no authority to show where acknowledgment of receipt of process would constitute a waiver of deficient service, nor has Lucas provided us with any such authority. In addition, other jurisdictions have not found this to be sufficient to constitute a waiver. "Acknowledgment of service, without an express waiver of process, does not constitute a waiver of valid service of process." Bailey v. Hall, 199 Ga.App. 602, 405 S.E.2d 579, 582 (1991) (citing Edison Provision Co. v. Armour & Co., 51 Ga.App. 213, 179 S.E. 829, 830 (1935)).

¶ 12. While Lucas did serve process on BMH-NM within the applicable period of statute of limitations, that is not adequate under the rules and case law. Lucas was still required to show that he effected process during the time periods allotted him under Rule 4, and as extended by the...