OF JUDGMENT: 07/18/2016
COUNTY CIRCUIT COURT, HON. WILLIAM E. CHAPMAN III
ATTORNEYS FOR APPELLANT: JOHN PRESTON SCANLON, JERRY L. MILLS
ATTORNEY FOR APPELLEES: JOHN BRIAN HYNEMAN
GRIFFIS, P.J., BARNES AND FAIR, JJ.
Evelyn Pennington filed a personal-injury action against
William Crawford, Ricky Ware, and State Farm Auto Insurance
Company (State Farm). 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.
On February 9, 2011, Crawford rear-ended Pennington's
vehicle. Crawford's vehicle belonged to his stepfather,
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).
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.
Service was eventually perfected on Crawford on August 7,
2014, and Ware on August 9, 2014 - over two months past the
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.