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Rains v. Gardner

April 21, 1998

HAZEL RAINS, APPELLANT
v.
GINGER GARDNER AND TINA CLARK, APPELLEES



DATE OF JUDGMENT: 08/17/95 TRIAL JUDGE: HON. LARRY EUGENE ROBERTS COURT FROM WHICH APPEALED: WAYNE COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - PERSONAL INJURY TRIAL COURT DISPOSITION: ACTION DISMISSED FOR FAILURE TO SERVE PROCESS WITHIN 120 DAYS DISPOSITION AFFIRMED IN PART AND REVERSED IN PART AND REMANDED - 10/7/97 MOTION FOR REHEARING FILED: 10/16/97

EN Banc.

The opinion of the court was delivered by: McMILLIN, P.j., For The Court:

AFFIRMED

CERTIORARI FILED:

MANDATE ISSUED:

ON MOTION FOR REHEARING

¶1. This matter is before this Court on Ginger Gardner's motion for rehearing. The motion for rehearing is granted. The original dated October 7, 1997 is withdrawn and this opinion is substituted in its place.

¶2. This case comes before the Court on appeal from an order entered in the Circuit Court of Wayne County dismissing Hazel Rains's complaint filed against Ginger Gardner and Tina Clark. We affirm the decision of the trial court.

¶3. Rains filed a personal injury action against Gardner and Clark, claiming that she fell while on a commercial parking lot owned by the defendants. Rains alleged that she fell because of a defect in the lot. She charged that the defendants were negligent in failing to properly maintain their property. At the time suit was filed - January 13, 1995 - Rains's attorney requested that the clerk not issue process until directed to do so. On June 14, 1995, counsel finally asked that process issue to Gardner and she was served on June 19. There was never a request for process to issue to Clark.

¶4. Gardner appeared through counsel and moved the trial court to dismiss under Mississippi Rule of Civil Procedure 4(h). That rule provides that an action may be dismissed on the court's own initiative or on motion if (a) service is not completed within 120 days after the complaint is filed and (b) the plaintiff "cannot show good cause why such service was not made within that period . . . ." M.R.C.P. 4(h). Gardner also asserted a statute of limitations defense in her motion. The trial court conducted a hearing and concluded that Rains had failed to demonstrate good cause for her failure to have process served on Gardner for a period well in excess of the 120 days set out in the rule. The court, therefore, dismissed the complaint as to Gardner under Rule 4(h).

¶5. During the course of the hearing on Gardner's motion, counsel for Gardner said, "There are some differences in the facts which the Court will hear but we ask the Court to dismiss [the complaint] as to Ms. Clark also under the rule that I read. But it's the Court's duty to do that . . . ." When asked if he represented Clark, counsel replied, "I'm not representing to the Court that I represent anybody but Ms. Gardner but Ms. Clark ought to also be dismissed. It's the Court's duty under this rule to do that." Rains claimed that these statements amounted to a voluntary appearance by Clark, thereby waiving the requirement of service of process on her. The trial court rejected that argument and dismissed the complaint as to Clark on its own motion under Rule 4(h).

ΒΆ6. Rains claims on appeal that both of these rulings by the trial court were erroneous. For reasons that we will discuss, we find Rains's ...


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