Webster v. Webster, 2001-CA-00570-SCT.

• Citation: 834 So.2d 26
• Decision Date: 17 October 2002
• Docket Number: No. 2001-CA-00570-SCT.,2001-CA-00570-SCT.
• Parties: Charles R. WEBSTER, Jr. v. Jean Lala WEBSTER.
• Court: United States State Supreme Court of Mississippi

834 So.2d 26

Charles R. WEBSTER, Jr. v. Jean Lala WEBSTER.

No. 2001-CA-00570-SCT.

Supreme Court of Mississippi.

October 17, 2002.

Rehearing Denied January 9, 2003.

Clement S. Benvenutti, Bay St. Louis, attorney for appellant.

William W. Dreher, Jr., Gulfport, attorney for appellee.

EN BANC.

WALLER, J., for the court.

¶ 1. This appeal presents the issue of what is considered to be "good cause" for failure to serve process within 120 days. We find that the plaintiff did not show good cause for failure to effect service of process within 120 days under Mississippi Rule of Civil Procedure 4(h)¹ and that the chancellor abused his discretion by failing to dismiss the complaint.

FACTS AND PROCEDURAL HISTORY

¶ 2. Jean Lala Webster filed a complaint of divorce in the Chancery Court of Hancock County against Charles R. Webster, Jr., alleging that he had deserted her by leaving the marital home, emptying the joint checking account, allowing the marital home to be foreclosed upon, her automobile to be repossessed, and the household goods to be auctioned off, dropping her from his health insurance, and leaving the state. She also alleged that even though Charles had obtained a divorce decree against her in Texas, she had never been a resident of Texas and Texas did not have personal jurisdiction over her.

¶ 3. Jean's complaint for divorce was filed on October 5, 1999, and, on that same date, summons was issued to Jean's attorney. Service on Charles by certified mail was attempted three times in October of 1999, but was returned marked "unclaimed." The address on the certified envelope was that of 537 Pritchett Road, Red Oak, Texas, the residence of Charles's father. On February 8, 2000, a motion to allow out of time service was filed and granted. The motion stated that Charles had intentionally avoided service of process, but there was no affidavit attached to the motion to support this allegation. Based upon this motion, the chancery court specifically found that good cause existed for failure to serve process in accordance with Rule 4(h). One hundred twenty additional days were granted to Jean for service of process. In an attempt to locate Charles, on February 29, 2000, a subpoena directed to Charles's employer, Southern Towing, was issued to Jean's attorney. On June 21, 2000, outside the 120-day extension given by the chancery court, an amended complaint was filed and summons issued. Charles was served by certified mail on July 3, 2000, at the address shown on the Texas divorce decree. Charles moved to dismiss Jean's complaint for divorce for failure to comply with Rule 4(h). A hearing was held in which testimony was given pertaining to Charles's attempts to avoid process. The chancery court specifically found that Charles had intentionally avoided service of process of Jean's complaint for divorce and that these acts constituted good cause to excuse Jean's failure to serve him with process within 120 days pursuant to M.R.C.P. 4(h). The chancery court ordered that Charles pay alimony to Jean in the amount of $2,000 per month, that Jean have ownership of all personal property in her possession, that Charles give Jean one-half of an IRA, and that Charles pay all costs of court and attorney's fees.²

DISCUSSION

I. WHETHER JEAN'S COMPLAINT FOR DIVORCE SHOULD HAVE BEEN DISMISSED FOR FAILURE TO COMPLY WITH M.R.C.P. 4(h).

¶ 4. Mississippi Rule of Civil Procedure 4(h) mandates that a complaint be dismissed if service of process is not effected within 120 days of the filing of the complaint and good cause cannot be shown for failure to do so. The rule has been interpreted to provide that "a plaintiff must serve a defendant with process within 120 days or show good cause why service was not made." Watters v. Stripling, 675 So.2d 1242, 1243 (Miss.1996) (emphasis added). The rule has also been interpreted to require that, if the defendant is not served within 120 days, the plaintiff must either refile the complaint before the statute of limitations ends or show good cause; otherwise, dismissal is proper. Id. at 1244. "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 of the rules usually does not suffice.'" Peters v. United States, 9 F.3d 344, 345 (5th Cir. 1993) quoting Systems Signs Supplies v. U.S. Dep't of Justice, 903 F.2d 1011, 1013 (5th Cir.1990) (cited favorably in Bang v. Pittman, 749 So.2d 47, 51 (Miss.1999), and Watters, 675 So.2d at 1243).

¶ 5. A determination of good cause is a discretionary ruling by the trial court and is entitled to deferential review of whether the trial court abused its discretion and whether there was substantial evidence supporting the determination. Bang, 749 So.2d at 51; Rains v. Gardner, 731 So.2d 1192, 1197 (Miss.1999).

¶ 6. The chronology of events in the case sub judice is as follows:

DATE ACTION June 1, 1998 Charles vacates marital domicile June 28, 1999 Charles's complaint for divorce (showing Cedar Hill address) filed in Texas October 5, 1999 Jean's complaint for divorce filed in Mississippi October 19, 1999 Jean served with Charles's complaint for divorce October, 1999 Three attempts made to serve Charles with process at Red Oak address February 2, 2000 First 120-day period elapses February 8, 2000 Motion for additional time in which to serve Charles filed February 8, 2000 Order granting motion for additional time entered, allowing 120 additional days in which to effect service of process February 29, 2000 Subpoena issued to Charles's employer April 4, 2000 Divorce, Dallas County, Texas June 7, 2000 Second 120-day period elapses June 21, 2000 Amended complaint filed July 3, 2000 Service of process of amended complaint on Charles at Cedar Hill address October 30,2000 Hancock County, Mississippi judgment on alimony, one-half (1/2) of IRA, court costs, attorney fees, and the award of personal property in Jean's possession March 20, 2001 Judgment denying M.R.C.P. 60 motion filed by Charles

¶ 7. Citing Collom v. Senholtz, 767 So.2d 215 (Miss.Ct.App.2000), Charles contends that, under Mississippi law, a motion for additional time in which to effect service of process which is filed after the 120 day period has elapsed will be denied and the complaint will be dismissed under Rule 4(h). A close reading of Collom, however, shows that motions for additional time in which to effect service of process were not addressed by the Court of Appeals.

¶ 8. Rule 4(h) does not require that a motion for additional time for service of process be filed within 120 days of the filing of the complaint. Arkansas and New York's rules of civil procedure mandate that a motion for additional time be filed within the 120-day period. See, e.g., Weymouth v. Chism, 75 Ark.App. 164, 55 S.W.3d 307 (2001)

; Norstar Bank of Upstate New York v. Wittbrodt, 154 Misc.2d 260, 594 N.Y.S.2d 115 (N.Y.Sup.Ct.1993). Arkansas's counterpart to Rule 4(h) specifically provides, "If a motion to extend is made within 120 days of the filing of the suit, the time for service may be extended by the court upon a showing of good cause." Ark. R. Civ. P. 4(i). New York's rule is similar. Therefore, if the drafters of our rules of civil procedure wished to require that motions for additional time in which to serve process be filed within the 120 days, they could have done so.

¶ 9. Jean did not file her motion for additional time until after 120 days after the filing of the complaint had elapsed. Even though Jean finally did effect service of process on Charles on July 3, 2000, this date was outside the second 120-day period granted by the chancery court, and Jean never filed a second motion for additional time within the second 120-day period or after the second 120-day period had elapsed.³

¶ 10. Our rule states that if the 120-day period has elapsed without effecting service of process, "the action shall be dismissed... upon the court's own initiative with notice to such party or upon motion." M.R.C.P. 4(h). The comments state that the complaint will be dismissed "unless good cause can be shown as to why service could not be made." The rule therefore provides that the plaintiff will have an opportunity to show good cause after the 120-day period has elapsed. Why else does Rule 4(h) require that notice be given to the plaintiff before the court can dismiss the complaint? The requirement of notice being given contemplates a response to the notice. A motion for additional time⁴ is an appropriate response to the notice.

¶ 11. Although we hold that a motion for additional time may be filed after the 120-day time period has expired, a diligent plaintiff should file such a motion within the 120-day time period. Such diligence would support an allegation that good cause exists for failure to serve process timely. Indeed, in Moore v. Boyd, 799 So.2d 133 (Miss.Ct.App.2001), the Court of Appeals found that excusable neglect is a "very strict standard" and the plaintiff should have filed a motion for additional time within 120 days of filing the complaint.

¶ 12. At a hearing on Charles's motion to dismiss, testimony was given as to why service was not timely made. The chancellor found that Jean had shown good cause for failure to serve process in a timely manner because Charles avoided service. The record does not support this finding. Jean had Charles's correct address in Cedar Hill, Texas, all along—the correct Cedar Hill address was noted in the first sentence of Charles's petition for divorce, with which she...