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Holland v. Mississippi Department of Rehabilitation Services, Ability Works Inc.

Court of Appeals of Mississippi

July 23, 2019

CYNTHIA HOLLAND APPELLANT
v.
MISSISSIPPI DEPARTMENT OF REHABILITATION SERVICES, ABILITY WORKS INC. AND DEBBIE BLACKSTON APPELLEES

          DATE OF JUDGMENT: 10/06/2017

          FORREST COUNTY CIRCUIT COURT HON. ROBERT B. HELFRICH JUDGE.

          ATTORNEYS FOR APPELLANT: PAUL MANION ANDERSON CORY NATHAN FERRAEZ SAMUEL STEVEN McHARD MARCUS ALAN McLELLAND.

          ATTORNEYS FOR APPELLEES BRADLEY ADAM HAYS MICHAEL D. GOGGANS CHRISTOPHER OWEN MASSENBURG.

         EN BANC.

          TINDELL, J.

         ¶1. On September 3, 2015, Cynthia Holland was involved in a motor vehicle accident with an employee of the Mississippi Department of Rehabilitation Services ("MDRS"). Pursuant to the Mississippi Tort Claims Act ("MTCA"), on August 15, 2016, Holland served MDRS with a notice of complaint and thereafter waited ninety-five days before filing her complaint. Holland filed suit in the Forrest County Circuit Court on December 2, 2016, against multiple defendants, including MDRS. Holland then hired a process server, who failed to "properly serve" the Attorney General's Office within 120 days pursuant to Mississippi Rule of Civil Procedure 4(d)(5). After learning about the process server's error, Holland served MDRS sixteen days after the 120-day deadline required by Rule 4(h) and immediately filed a motion for determination that service was proper upon MDRS or alternatively for an extension of time to serve process.

         ¶2. MDRS filed a motion to dismiss for failure to properly serve within 120 days of filing the complaint. In its order and final judgment, the circuit court denied Holland's motion and granted MDRS's motion, finding that Holland failed to establish good cause and failed to properly serve MDRS within 120 days. The circuit court also dismissed Holland's suit without prejudice, which Holland now appeals. Finding that Holland properly demonstrated good cause for her failure to serve MDRS, we reverse the circuit court's judgment.

         FACTS AND PROCEDURAL HISTORY

         ¶3. Holland was involved in a motor vehicle accident on September 3, 2015, when her vehicle collided with a vehicle owned by Ability Works Inc. and driven by an MDRS employee. Holland served MDRS with her notice of complaint on August 15, 2016, and then, pursuant to the MTCA, waited the requisite ninety days to file her complaint. Holland filed suit in the Forrest County Circuit Court on December 2, 2016, for damages relating to the accident.

         ¶4. On March 10, 2017, Holland delivered a copy of the complaint and summons to the MDRS office in Hattiesburg. Holland then hired Davy Keith, an experienced process server, to serve all the named defendants with copies of the complaint, summons and written discovery, including MDRS, through the Attorney General's Office. On March 27, 2017, Holland's attorney emailed Davy Keith, inquiring about the service of process. Keith responded the same day, stating, "[A]ll served and aff's [affidavits] will be scanned and mailed to you." Thereafter, MDRS filed its answer and responses to written discovery on April 7, 2017.

         ¶5. On April 15, 2017, Holland's attorney received the affidavits showing proof of service from Keith, except for an affidavit for the Attorney General's Office on behalf of MDRS. Holland's attorney contacted Keith to ask about the missing affidavit, but received no response from Keith until April 17, 2017. Keith responded, notifying Holland that due to a computer assignment error the complaint and summons intended for the Attorney General's Office had been mistakenly served upon another defendant. Holland's counsel then notified Keith to immediately serve the Attorney General's Office, and Keith did so accordingly. Service of process, however, at this point, was sixteen days past the expiration of the 120-day deadline imposed by Mississippi Rule of Civil Procedure 4(h).

         ¶6. The following day, on April 18, 2017, Holland's counsel filed a "Motion for Court Determination of Proper Service on Defendant Mississippi Department of Rehabilitation Services or in the Alternative Motion for Additional Time to Perfect Service." MDRS filed its motion to dismiss for failure to serve process on May 10, 2017, and Holland filed her response to this motion on May 15, 2017. After conducting a hearing on the matters, the circuit court denied Holland's motion on June 7, 2017, finding that she had failed to serve the Attorney General's Office within the requisite 120-day time period and that she had failed to provide the court with a proper showing of good cause. The circuit court entered its final judgment on October 6, 2017, dismissing Holland's claim without prejudice, and Holland now appeals.

         STANDARD OF REVIEW

         ¶7. We review the grant or denial of a motion to dismiss de novo. Blakeney v. Warren County, 973 So.2d 1037, 1039 (¶11) (Miss. Ct. App. 2008). But when the circuit court applies fact-based findings in its determination of good cause or excusable neglect, the Court defers to the discretionary ruling of the circuit court and questions "whether there was substantial evidence supporting the determination." Rains v. Gardner, 731 So.2d 1192, 1197 (¶18) (Miss. 1999). We will reverse a circuit court's determination of good cause of excusable neglect upon a finding that the circuit court abused its discretion. Long v. Memorial Hosp. at Gulfport, 969 So.2d 35, 38 (¶5) (Miss. 2007).

         ANALYSIS

         ¶8. The Mississippi Rules of Civil Procedure mandates that a plaintiff serve process upon the defendants in a lawsuit within 120 days of filing the complaint. M.R.C.P. 4(h). "A plaintiff who does not serve the defendant within the 120 day period must either re-file the complaint before the statute of limitations ends or show good cause for failing to serve process on the defendant within that 120-day period." Watters v. Stirpling, 675 So.2d 1242, 1244 (Miss. 1996). Plaintiffs bear the burden of establishing good cause. Holmes v. Coast Transit Authority, 815 So.2d 1183, 1185 (¶7) (Miss. 2002). The burden requires a showing of "at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice." Watters, 675 So.2d at 1243. Good cause requires the plaintiff to show that he or she made a diligent effort to timely serve the defendant. Fulgham v. Jackson, 234 So.3d 279, 284 (¶18) (Miss. 2017). If the plaintiff establishes good cause based upon this standard, dismissal is not appropriate. Collins v. Westbrook, 184 So.3d 922, 929 (¶19) (Miss. 2016).

         ¶9. Holland argues that the circuit court abused its discretion by finding that Holland had failed to sufficiently establish good cause for her untimely service of MDRS. Holland's untimely service was the result of a computer error which directed Keith to serve the wrong defendant. MDRS argues that Holland may not simply rely upon the errors of her process server to establish good cause. But Mississippi courts have never articulated a ban upon using a process server's error as a basis to show good cause. To the contrary, the Mississippi Supreme ...


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