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Fulgham v. Jackson

Supreme Court of Mississippi

June 22, 2017

RODNEY SHELTON FULGHAM
v.
CLARA JACKSON

          DATE OF JUDGMENT: 03/30/2016

         BOLIVAR COUNTY CIRCUIT COURT HON. CHARLES E. WEBSTER

          TRIAL COURT ATTORNEY: S. TODD JEFFREYS

          ATTORNEY FOR APPELLANT: M. GARNER BERRY

          ATTORNEY FOR APPELLEE: S. TODD JEFFREYS

          BEFORE DICKINSON, P.J., KING AND CHAMBERLIN, JJ.

          CHAMBERLIN, JUSTICE

         FOR THE COURT:

         ¶1. This interlocutory appeal arises from the Circuit Court of Bolivar County. Rodney Fulgham argues that the trial judge below erred by denying his motion to dismiss. The motion asserted that the plaintiff, Clara Jackson, failed to show good cause justifying a second enlargement of time to serve process. Finding no error with the trial judge denying the motion to dismiss, we affirm.

         FACTS

         ¶2. On February 4, 2015, Jackson filed a complaint against Fulgham for damages arising from a car accident.[1] A summons was issued the next day, and both the complaint and summons stated that Fulgham was incarcerated at the Bolivar County Correctional Facility in Cleveland, Mississippi. On May 8, 2015, within the 120-day deadline to serve process, Jackson filed a Motion for Enlargement of Time to Serve Process. In the motion, Jackson stated that she believed Fulgham had been moved to the Carroll-Montgomery County Regional Correctional Facility in Vaiden, Mississippi, and that additional time was needed to serve Fulgham due to his movement through the prison system. The trial judge granted the motion, giving Jackson an additional 120 days, until October 2, 2015, to serve process on Fulgham.

         ¶3. On September 23, 2015, Jackson filed a Second Motion for Enlargement of Time to Serve Process. In the motion, Jackson claimed that she had been advised that Fulgham would be returning to the correctional facility in Bolivar County but that such return never occurred. Therefore, Jackson requested an additional sixty days to serve process. The trial judge granted the second enlargement, giving Jackson until December 2, 2015, to serve Fulgham. Ultimately, Jackson effectuated service of process on Fulgham on November 12, 2015, at the correctional facility in Carroll County.

         ¶4. On December 17, 2015, Fulgham filed a Motion to Dismiss for failure to serve timely process, along with his first responsive pleadings. Fulgham, through counsel, argued that his location in the prison system easily could have been determined by a name search on the Mississippi Department of Corrections website and that Jackson was not diligent in locating him. Thus, he argued that good cause was not shown for failing to serve process within the first 120 days after the case had been filed. Jackson filed a response to the motion and the trial judge held a hearing.

         ¶5. At the hearing, Fulgham admitted that the first enlargement was properly granted and abandoned the argument presented in the written motion. Fulgham conceded that, because the first enlargement was sought within the initial 120-day time frame to serve process, Jackson need only to show "cause, " not "good cause." See Johnson v. Thomas ex rel. Polatsidis, 982 So.2d 405, 412 (Miss. 2008) ("Rule 4(h) clearly does not apply to a motion for additional time filed within the initial 120 days."). The trial judge, however, allowed Fulgham to present an ore tenus motion to dismiss, asserting that Jackson had failed to show "good cause" as to why a second enlargement should have been granted.

         ¶6. In response to the ore tenus motion, counsel for Jackson claimed that he had contacted an administrative official at the Bolivar County facility who initially stated that Fulgham was in Rankin County for processing. Some time later, counsel learned from the administrative official that Fulgham had been moved to the Carroll County facility but would be brought back to Bolivar County within a couple of months. At this time, counsel said he sought the first enlargement. Near the end of the 120-day period under the first enlargement, counsel stated that he contacted the ...


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