OF JUDGMENT: 03/02/2018
COUNTY CIRCUIT COURT, HON. JEFF WEILL SR.
ATTORNEYS FOR APPELLANT: DENNIS C. SWEET III DENNIS CHARLES
ATTORNEYS FOR APPELLEE: CRANE D. KIPP REX MORRIS SHANNON III
Joshua Adams appeals the Hinds County Circuit Court's
order that reversed a Hinds County County Court's
judgment granting him an extension of time to serve process
on Mississippi Basketball & Athletics (MBA). The circuit
court also granted MBA's summary judgment motion and
dismissed the case on statute of limitation grounds. Finding
that the circuit court abused its discretion, we reverse.
AND PROCEDURAL HISTORY
On May 4, 2014, Adams was working as a referee during a
basketball tournament held at MBA's facility. Adams and
Justin Griffin, a basketball coach, had an argument that
escalated into a more serious altercation in the parking lot.
As a result of the fight, Griffin suffered a head injury that
sadly caused his death two days later.
Adams contends that he also suffered severe injuries as a
result of the altercation. Adams filed a complaint on May 1,
2017- three days prior to the running of the three-year
statute of limitations-against MBA; Mississippi Boys Hoops
Inc.; and Amateur Athletics Union, alleging negligent hiring,
retention, and supervision or control of Griffin.
On May 10, 2017, Adams filed a motion to transfer the case to
circuit court and argued he inadvertently wrote "county
court" instead of "circuit court" on the
complaint because his damages exceeded the county court's
jurisdictional limits of $200, 000.
Prior to a ruling on the motion to transfer, Adams served two
of the three defendants. But Adams had difficulty serving MBA.
According to the Secretary of the State's website,
MBA's registered agent was Jeffery Lewis, whose address
was 105 Kenilworth Place, Ridgeland, Mississippi. Adams's
process server made six attempts to serve MBA within
120-days, but neither Lewis nor anyone else answered the
door. On the 121st day, August 30, 2017, Adams filed a motion
for an extension of time to serve MBA and stated the
following in his Motion:
Plaintiff's process server has tried serving the
defendant on numerous occasions. Despite diligent efforts,
Plaintiffs process server has not been able to effectuate
process on Defendant.
The county court granted the motion on September 11, 2017,
This matter came before the Court on the Plaintiff's
Motion For Extension of Time To Serve Process on the
defendants in this cause, and the Court, after
considering said motion, finds that it is well taken
and should be granted.
(Emphasis added). Plaintiff was given an additional 120-days
to serve MBA.
On October 10, 2017, Plaintiff had the Madison County
Sheriff's Office attempt service on Lewis at the address
listed on the Secretary of State's website. But the
deputy was also unsuccessful.
On October 24, 2017, the county court transferred the case to
the circuit court.
Finally, on November 17, 2017, Lewis was served by a private
process server, Terrell Wells, at the MBA facility in Jackson
where Lewis worked.
On December 12, 2017, MBA filed a motion in the circuit court
to set aside the county court's order granting Adams an
extension of time to serve process upon MBA and for summary
judgment based upon its statute of limitations defense. MBA
asserted it was entitled to summary judgment because Adams
failed to show good cause for an extension of time to serve
MBA and that Adams's claims were therefore time barred.
MBA argued that Adams provided no facts and did not submit
any affidavits or other evidentiary support with his motion
when it was filed in the county court.
Adams filed a response to MBA's motion to set aside the
order and for summary judgment on December 30, 2017. Adams
provided the affidavit of Terrell Wells, the process server,
who stated that he attempted to serve MBA on more than six
occasions at the address listed for the registered agent on
the Secretary of State's website. Wells's affidavit
also mentioned vehicles were in the driveway, but no one
answered the door. Additionally, Adams provided the circuit
court with documentation dated October, 10, 2017, from the
Deputy Sheriff of Madison County, Randall Tucker, who stated
he too was unable to serve MBA at that address.
A hearing was held on MBA's motion to set aside the
county court's order granting Adams's motion for an
extension of time and for summary judgment. The circuit court
found that the county court's order should be set aside,
and MBA's motion for summary judgment was granted on the
ground of statute of limitations.
Adams timely appealed to this Court.
This Court looks for abuse of discretion when reviewing a
ruling court's decision on whether to set aside an order
granting an extension of time. Copiah Cty. Sch. Dist. v.
Buckner, 61 So.3d 162, 166 (¶12) (Miss. 2011);
Booth v. Williams, 200 So.3d 1053, 1057 (¶11)
(Miss. Ct. App. 2016). "This Court leaves to the
discretion of the trial court the finding of fact on the
existence of good cause or excusable neglect for delay in
serving process under Rule 4(h)." Buckner, 61
So.3d at 166 (¶12). Further, our courts "will
reverse if the trial court's discretion was abused or its
decision was not supported by substantial evidence."
Id. at 166 (¶12). Moreover, "we review the
grant or denial of a motion for summary judgment de novo,
viewing the evidence in the light most favorable to the party
against whom the motion has been made." Karpinsky v.
Am. Nat. Ins. Co., 109 So.3d 84, 88 (¶9) (Miss.
Whether the circuit court abused its discretion by
setting aside the county court's 120-day
extension of time.
This case is unique because it involves the rulings of two
trial courts in the pre-trial stages of a case. The county
court granted Adams's motion for extension of time. When
the case was transferred, the circuit court set aside the
county court's ruling finding that Adams failed to
establish good cause to extend the time for service of
process. Adams raises two issues on appeal: (1) whether he
demonstrated good cause for failing to serve MBA within
120-days and (2) whether the county court's ruling is the
"law of the case." We find that the circuit court
abused its discretion regarding whether Adams demonstrated
good cause for the extension of time. Our resolution of the
first issue renders discussion of the "law of the
case" argument unnecessary.
Mississippi Rule of Civil Procedure 4(h) states:
Summons: Time Limit for Service. If a
service of the summons and complaint is not made upon a
defendant within 120 days after the filing of the complaint
and the party on whose behalf such service was required
cannot show good cause why such service was not made within
that period, the action shall be dismissed as to that
defendant without prejudice ...