GRACELAND CARE CENTER OF NEW ALBANY, LLC, ADVANCED HEALTHCARE MANAGEMENT, INC., KAREN CLAYTON, IN HER OFFICIAL CAPACITY AS ADMINISTRATOR OF GRACELAND CARE CENTER OF NEW ALBANY, W. LARRY OVERSTREET AND SHARON WINDHAM
TERESA HAMLET, ON BEHALF OF JIMMY KINARD, DECEASED
OF JUDGMENT: 11/17/2015
COUNTY CIRCUIT COURT HON. JOHN KELLY LUTHER Judge
COURT ATTORNEYS: T. K. MOFFETT ANDY LOWRY THOMAS L. KIRKLAND,
ATTORNEYS FOR APPELLANTS: ANDY LOWRY THOMAS L. KIRKLAND, JR.
ATTORNEYS FOR APPELLEE: RICHARD SHANE McLAUGHLIN NICOLE H.
Teresa Hamlet filed a motion for an extension of time to
serve process, prior to the expiration of the 120-day
deadline provided by Mississippi Rule of Civil Procedure
4(h). The trial judge granted the motion and signed an order,
yet the order was not filed with the circuit clerk until the
day before the granted extension expired, well after the
expiration of the original, 120-day deadline. Hamlet served
process on three defendants during the extension. On the same
day the order was filed, Hamlet filed a second motion for
time, which the trial court also granted. While Hamlet served
process on the remaining defendants within the second
extension period, the order granting the second extension was
not filed with the clerk until three months after it was
signed by the judge.
The defendants filed a motion to dismiss Hamlet's
complaint, arguing that the statute of limitations had run
before the court's order granting additional time to
serve process had been entered by the clerk of court. The
defendants further argued that Hamlet's suit could not be
revived by the untimely filed order. The trial court denied
the defendants' motion to dismiss. Because Hamlet was the
only party to the action, we find that the trial judge's
order granting her motion for extension of time to serve
process became effective once the order had been signed and
had left the trial judge's control. Accordingly, we
affirm the decision of the trial court. However, in cases
where more than one party is involved, notice becomes
essential. Therefore, in cases involving multiple parties, we
adopt the holding of the majority of states that require the
entry of an interlocutory order before it becomes effective.
OF FACTS AND PROCEDURAL HISTORY
Jimmy Kinard died on September 23, 2012. On October 17, 2014,
Teresa Hamlet, Kinard's sister, filed suit against
Graceland Care Center of New Albany, LLC; Advanced Healthcare
Management, Inc.; Karen Clayton, in her official capacity as
administrator of Graceland Care Center of New Albany; W.
Larry Overstreet; Sharon Windham; and John Does 1-10, jointly
and individually (collectively referred to as
"Graceland"). Hamlet alleged that Graceland's
negligence was the proximate cause of Kinard's death.
The 120-day deadline to serve process as provided under Rule
4(h) of the Mississippi Rules of Civil Procedure would have
expired on February 14, 2015. On February 13, 2015, Hamlet
filed a Motion to Extend Time to Serve Process.
On February 23, 2015, the trial judge signed an order
granting Hamlet sixty days from February 14, 2015, to serve
process on the defendants. However, the order was not entered
by the clerk of the court until April 14, 2015, one day prior
to the expiration of the sixty-day extension.
Hamlet served three defendants on April 14, 2015. On that
same day, Hamlet filed a Second Motion to Extend Time to
Serve Process, arguing that, while her deadline to serve
defendants "will run on or about April 15, 2015, "
process to defendants remained incomplete. On April 16, 2015,
the trial judge signed the order granting Hamlet's second
motion for extension of time to serve process, allowing
Hamlet an additional sixty days from April 15, 2015, to serve
process on the defendants. The circuit court clerk did not
enter this order until July 14, 2015.
The following time line illustrates the pertinent dates:
Sept. 23, 2012
Jimmy Kinard passed away (statute of limitations
begins to run).
July 25, 2014
Notice of claim sent to Graceland, tolling statute
of limitations for sixty days per Miss. Code Ann.
Sept. 23, 2014
Earliest date Hamlet could file suit under Section
Oct. 17, 2014
120-day period to serve process begins, expiring
February 14, 2015.
Feb. 13, 2015
Hamlet files motion for additional sixty days to
serve process within the 120-day period.
Feb. 23, 2015
Court grants Hamlet's motion for an additional
sixty days to serve process from February 14 until
April 15 (“first extension order”).
Mar. 22, 2015
Graceland argues that the statute of limitations
Apr. 14, 2015
Clerk enters first extension order.
Hamlet perfects service on Karen Clayton, Graceland
Care Center, and W. Larry Overstreet.
Hamlet files second motion for time.
Apr. 15, 2015
Sixty-day period under the first extension order
Apr. 16, 2015
Court grants Hamlet's second motion for an
additional sixty days to serve process from April
15 until June 15 (“second extension
Hamlet perfects service on Advanced Healthcare
May 15, 2015
Graceland files motion to dismiss.
July 14, 2015
Clerk enters second extension order.
Graceland filed a Motion to Dismiss, contending that the
statute of limitations had run before the April 14, 2015,
order extending time was entered. Graceland argued that
Hamlet failed to serve timely process within 120 days after
filing her complaint, and therefore, the statute of
limitations resumed after the 120 days. Initially, Graceland
argued that Hamlet had failed to show "good cause"
in her motion for extension, which would have satisfied
Mississippi Rule of Civil Procedure 4(h). Graceland, however,
acknowledged that Hamlet likely would contend that, where a
motion for time is filed prior to the expiration of the 120
days, the standard of Mississippi Rule of Civil Procedure
6(b) applies. See Cross Creek Prods. v. Scafidi, 911
So.2d 958 (Miss. 2005).
Graceland's argument against applying Rule 6(b) was
twofold. First, Graceland argued that Scafidi did
not involve the statute-of-limitations tolling rule. Second,
Graceland argued that Hamlet's failure to secure an order
before the 120-day deadline expired made a showing of good
cause necessary. Graceland noted that the Scafidi
Court did not reveal when the trial court entered its order
granting an extension of time to serve process. Because the
120-day deadline had expired without Hamlet securing a signed
and filed order extending the time to serve process, it
averred that there should be a requirement that Hamlet show
good cause after the 120-day deadline expired.
In response, Hamlet argued that the Scafidi Court
specifically held that motions for time filed during
the 120-day deadline do not require a showing of good cause.
Id. at 960 ("[T]his finding is specifically
limited to those situations where the motion for additional
time is filed before the deadline.") (emphasis
added). Because she filed her motion for an extension of time
to serve process within the 120-day deadline, Hamlet argued
that a showing of good cause was not necessary.
The trial court held a hearing on the motion, at which
Graceland argued that an order does not become effective
until it is filed with the clerk and all parties are put on
notice. Graceland admitted this was a case of first
impression but likened an interlocutory order to a judgment
not being effective until it is filed. Graceland argued that,
while a statute of limitations could be extended by a court,
it could not be resurrected. Graceland also contended that
the mere filing of a motion for time did not toll the statute
of limitations. Moments before the trial court's ruling,
Graceland's counsel stated that "prejudice might be
relevant to the issue [if] we are [sic] showing good cause[,
] but we conceded that it's not. This is an issue of
statute of limitations, Your Honor." Because the statute
of limitations had run prior to the April 14, 2014, order
being filed with the clerk, Graceland prayed that the court
would dismiss the action.
Hamlet's attorney acknowledged that the signed order from
the judge "may have spent longer in my office than it
should have. . . ." However, Hamlet argued that the law
did not require a party to secure and file an order within
the initial 120-day period in order to receive an extension.
Hamlet stated that Graceland Care Center was served on April
14, 2015, the same day the order granting the extension was
filed and within the extension allowed by the order. Also,
Hamlet argued that no caselaw supported Graceland's
assertion that the order was not effective until it was
entered by the court.
After considering oral argument and documentary evidence, the
trial court confirmed with the parties that "[t]he
question of reasonableness, good cause shown is not an issue.
. . ." Neither party objected. The trial court next
recognized that no caselaw on point would direct him to
dismiss this case and that dismissals were not favored. As
such, the trial court denied the motion.
Graceland timely filed this interlocutory appeal. On appeal,
Graceland raises three issues. First, Graceland argues that
an order is effective only upon filing with the clerk.
Second, Graceland claims that a motion filed within the
120-day period under Rule 4(h) is insufficient to resurrect
the statute of limitations where the order granting the
motion is filed after the statute of limitations runs. Third,
Graceland argues that this Court should reconsider and
Hamlet raises two issues. First, Hamlet argues that an order
extending time to serve process is effective upon the
judge's signing. Second, Hamlet argues that this Court
should not overrule Scafidi. For clarity, we will
restate and combine the issues on appeal.
"This Court uses a de novo standard of review when
passing on questions of law including statute of limitations
issues." Stephens v. Equitable Life ...