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Pennington v. Crawford

Court of Appeals of Mississippi

November 14, 2017

EVELYN PENNINGTON APPELLANT
v.
WILLIAM DAVID CRAWFORD, RICKY WARE, AND STATE FARM AUTO INSURANCE CO. APPELLEES

          DATE OF JUDGMENT: 07/18/2016

         MADISON COUNTY CIRCUIT COURT, HON. WILLIAM E. CHAPMAN III

          ATTORNEYS FOR APPELLANT: JOHN PRESTON SCANLON, JERRY L. MILLS

          ATTORNEY FOR APPELLEES: JOHN BRIAN HYNEMAN

          BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.

          FAIR, J.

         ¶1. Evelyn Pennington filed a personal-injury action against William Crawford, Ricky Ware, and State Farm Auto Insurance Company (State Farm).[1] She failed to serve process on Crawford or Ware within 120 days of filing, as required by Mississippi Rule of Civil Procedure 4(h). The Madison County County Court granted Crawford and Ware's motion to dismiss, based on lack of good cause for the delay. Pennington appealed to the Madison County Circuit Court, which affirmed the dismissal. She now appeals to this Court, arguing that the trial court abused its discretion in relying on findings that were manifestly wrong or clearly erroneous, and the trial court erred in dismissing Pennington's suit for failure to serve Crawford and Ware within 120 days absent good cause. Finding no error, we affirm the circuit court's judgment.

         FACTS

         ¶2. On February 9, 2011, Crawford rear-ended Pennington's vehicle. Crawford's vehicle belonged to his stepfather, Ware.

         ¶3. Pennington filed her complaint on February 6, 2014 - three days before the statute of limitations was set to run. She had summonses issued for Crawford, Ware, and State Farm 118 days later, after her negotiations with State Farm fell through. But Pennington did not serve process on Crawford or Ware within the 120 days allowed by Rule 4(h), nor did she request additional time to effect service. On June 26, 2014, Crawford and Ware moved to dismiss under Mississippi Rule of Civil Procedure 12(b)(5).

         ¶4. On July 17, 2014, Pennington responded to the motion and requested an extension of time to serve process. She provided an affidavit from the process server, who stated that he was given Crawford and Ware's address listed on the police report to serve process. On June 5 and June 6, he made several attempts to serve both Crawford and Ware at that address. After doing his own research, he found two other possible addresses. The process server went to what he believed to be Crawford and Ware's current address. When he arrived there, he saw a man and a woman acting "suspiciously" in the garage; the man "darted" inside. The process server talked to the woman, who said she was Crawford's sister. When he asked her about Crawford, she said she did not know where Crawford was or when he would return. The process server testified that he "did not serve her, as [he] was attempting only personal service, under the understanding that [he] could achieve proper service only via serving []Crawford personally." He provided no testimony regarding any actual attempt to serve Ware.

         ¶5. Service was eventually perfected on Crawford on August 7, 2014, and Ware on August 9, 2014 - over two months past the 120-day deadline.

         ¶6. In January 2015, the court held a hearing on Crawford and Ware's motion and found that Pennington had failed to show good cause for her delay in service. Consequently, the court granted Crawford and Ware's motion to dismiss.

         STANDARD ...


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