Powe v. Byrd, No. 2002-CA-00834-SCT
| Decision Date | 18 November 2004 |
| Docket Number | No. 2003-CA-00021-SCT., No. 2002-CA-00834-SCT |
| Citation | 892 So.2d 223 |
| Parties | Nancy POWE, Individually and On Behalf of the Wrongful Death Beneficiaries of Cecil Powe, Deceased v. O.W. BYRD, M.D., and The Medical Group Clinic. |
| Court | Mississippi Supreme Court |
Christina Carroll, David Wayne Baria, Mark L. Pearson, Jackson, W. Eric Stracener, Mary Marvel Fyke, attorneys for appellant.
Gaye Nell Lott Currie, George Quinn Evans, Jackson, attorneys for appellee.
Before COBB, P.J., DICKINSON and RANDOLPH, JJ.
¶ 1. This appeal involves the consolidation of two cases. Plaintiff Nancy Powe's ("Powe") original medical malpractice complaint ("Original Complaint") was dismissed on April 1, 2002, by the Circuit Court of Clarke County for failure to timely serve the remaining defendant, The Medical Group Clinic, with a summons and complaint within the applicable 120 day time period under Rule 4(h) of the Mississippi Rules of Civil Procedure. On April 1, 2002, the day the Original Complaint was dismissed, Powe filed a second factually similar complaint ("Second Complaint") in a second lawsuit. The Circuit Court of Clarke County entered an Order of Dismissal on September 27, 2002, dismissing that action as barred by the two-year statute of limitations contained in Miss.Code Ann. § 15-1-36. Powe appeals, and we affirm.
¶ 2. Cecil Powe was treated for gastritis and hemorrhoids by Dr. O.W. Byrd on multiple occasions from January 4, 1996, to January 6, 1998. In March of 1998, when treated at Rush Memorial Hospital, he was diagnosed with metastic adenocarcinoma in his colon and lungs; he died on August 10, 1998.
¶ 3. On August 3, 2000, Powe filed the Original Complaint alleging medical malpractice. The other defendants were dismissed by agreed order. Service was not made upon the remaining defendant until December 4, 2000, which was 3 days after the 120 day deadline required by Rule 4(h) of the Mississippi Rules of Civil Procedure. Powe's counsel contends that process was not served because of a mistake by either his secretary or the process server. The process server was contacted by the secretary for Powe's counsel on Friday, December 1, 2000, but did not serve process until Monday December 4, 2000. After the running of the 120 day deadline for service on December 1, Powe could have refiled another complaint, but chose not to do this; instead she waited until the Original Complaint was dismissed to file the Second Complaint in April 2002.
¶ 4. Powe's counsel contends that he directed his secretary to tell the process server to deliver the Original Complaint on December 1, 2000. The process server was located in Hinds County, Mississippi, and the process was to be served in Quitman, Mississippi. The process server contends that he was never told to deliver the complaint on December 1, 2000, and did not deliver the complaint until the next business day, which was December 4, 2000. Powe alleges that she did not contact the process server sooner because she was waiting for an expert opinion from an oncologist regarding the merits of the case. Powe received this opinion on December 1, 2000, at which time the secretary was told to contact the process server and have him deliver the Original Complaint on that day.
¶ 5. On April 1, 2002, the circuit court dismissed the Original Complaint without prejudice for failure to serve process within the 120 day time limit, finding that Powe did not show good cause for the failure to serve within the 120 days. Powe filed the Second Complaint on April 1, 2002, which was dismissed with prejudice on September 27, 2002, as barred by the two-year statute of limitations set forth in Miss.Code Ann. § 15-1-36. Powe raises the following issues on appeal:
¶ 6. "A trial court's finding of fact on the existence of good cause for the delay in service of process has been deemed a discretionary ruling ... and entitled to deferential review on appeal." Holmes v. Coast Transit Auth., 815 So.2d 1183, 1185 (Miss.2002) (quoting Rains v. Gardner, 731 So.2d 1192, 1197-98 (Miss.1999)). "However, a decision to grant or deny an extension of time based upon a question of law will be reviewed de novo." Id. Mississippi Rule of Civil Procedure 4(h) 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.
¶ 7. Powe argues that the process server was not contacted until the 120th day because of her attorney's attempts to comply with Miss. R. Civ. P. 11. Furthermore, Powe argues that she did not receive an expert opinion about the merits of the case until the 120th day and waited until then to contact the process server in an attempt to comply with Rule 11. However, Rule 11 does not excuse the delay in service because Powe had already filed the Original Complaint. The purpose of Rule 11 is to obtain the attorney's certification that there are good grounds to support pleadings and motions at the time of filing and that they are not interposed for delay. Miss. R. Civ. P. 11(a).
¶ 8. Powe relies on Holmes, which stated:
"good cause is likely (but not always) to be found when the plaintiff's failure to complete service in timely fashion is a result of the conduct of a third person, typically the process server, the defendant has evaded service of the process or engaged in misleading conduct, the plaintiff has acted diligently in trying to effect service or there are understandable mitigating circumstances, or 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)). In Holmes, this Court held that a plaintiff's good faith negotiations with the defendant did not constitute good cause for failure to timely serve process. Id. at 1187. In ruling on the matter we stated that, Id.
¶ 9. Holmes does not support Powe's argument that she acted with good cause. In Holmes, the plaintiff at least tried to serve process on the defendant a day after the complaint was filed by mailing the process. Id. at 1185. Powe waited until the last day of the 120 day period to contact the process server, and process was not served. These actions do not constitute diligence in effecting service.
¶ 10. This Court has stated that, "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 or the rules usually does not suffice." Watters v. Stripling, 675 So.2d 1242, 1243 (Miss.1996) (quoting Peters v. United States, 9 F.3d 344 (5th Cir.1993)). Also, inability to refile the suit because of a statute of limitations bar does not preclude dismissal. Watters, 675 So.2d at 1244.
¶ 11. This Court has set a high standard for establishing good cause. In Perry v. Andy, 858 So.2d 143 (Miss.2003), this Court held that pro se litigants who defectively served process on a defendant by handing him a copy of the complaint, and who later served process correctly 7 days after the 120 days were up, did not show good cause, thereby affirming the trial court's dismissal. Id. at 149. Like Powe, the Perrys' case was barred by the statute of limitations, but nevertheless the Court still held that dismissal was proper. If pro se litigants are expected to strictly comply with the 120 day limit, then surely litigants represented by attorneys must be held to the same standard. Unlike in Perry, where there was defective service of process, Powe failed to serve the defendant at all. "There is an obvious distinction between total want of service of process and a defective service of process." Id. at 145 (citing Harrington v. Wofford, 46 Miss. 31, 41 (1871)). The defendant has no notice of the suit when there is no service; defective service at least gives the defendant notice. Id.
¶ 12. Powe further argues that the Court of Appeals relaxed the application of Miss. R. Civ. P. 4(h) when ruling on King v. Am. RV Ctrs., Inc., 862 So.2d 558 (Miss.Ct.App.2003). In King, although the original complaint was not timely served, an amended complaint was filed and served within the applicable statute of limitations period. Id. at 561. The Court of Appeals found in King that the amended complaint was essentially another complaint that did not make any reference to the other complaint and, had it been titled "complaint" rather than "amended complaint," there would not have been an issue. Id. at 562. After the 120 days, Powe did not file any other complaint before the statute of limitations period ended.
¶ 13. This Court finds that the circuit court did not err in ruling that Powe failed to show good cause for lack of timely service. Powe's reliance on Holmes and King is misplaced. King involved an amended complaint being filed within the statute of limitations, and Holmes involved defective...
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