Sykes v. Home Health Care Affiliates, Inc.
| Docket Number: | 2011-CA-00913-COA Linked Case(s): 2011-CA-00913-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 10-02-2012 Opinion Author: Carlton, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Personal injury - Derivative claims - Statute of limitations - Service of process - Good cause - M.R.C.P. 4(h) Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Roberts, Maxwell, Russell and Fair, JJ. Procedural History: Summary Judgment Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 05-26-2011 Appealed from: Lowndes County Circuit Court Judge: Lee J. Howard Disposition: COUNTY COURT’S GRANT OF SUMMARY JUDGMENT TO APPELLEE AFFIRMED Case Number: 2010-0048-CV1 H |
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| Note: | On October 8, 2013, the Court of Appeals granted a motion for rehearing. The opinion can be found at http://courts.ms.gov/Images/Opinions/CO88043.pdf | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Dorothy Sykes |
CARTER DOBBS JR. |
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| Appellee: | Home Health Care Affiliates, Inc. | JOHN LEWIS HINKLE IV | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Personal injury - Derivative claims - Statute of limitations - Service of process - Good cause - M.R.C.P. 4(h) |
| Summary of the Facts: | Dorothy Sykes against brought an action against Home Health Care Affiliates Inc. and its employee, Zelp Gambleton. She alleged personal injury as a result of an accident in which a vehicle driven by Gambleton collided with a vehicle occupied by Sykes. Sykes timely served Home Health in accordance with M.R.C.P. 4(h) but never served Gambleton. Home Health filed a motion for summary judgment. The county court entered an order granting summary judgment to Home Health and dismissing with prejudice the cause of action against Home Health. The county court also dismissed the claims against Gambleton without prejudice. Sykes appealed to circuit court which affirmed. Sykes appeals. |
| Summary of Opinion Analysis: | Issue 1: Derivative claims While Sykes admits that the statute of limitations ran against Gambleton, she argues that it was not necessary that Home Health’s employee be served with process in order for the suit against Home Health to proceed because reasonable efforts were made to serve process upon Gambleton. Gambleton never became a party to the suit, because he was not served with process. The only action that Sykes brought against Home Health was asserted vicariously through the actions of Gambleton. As such, the allegations in Sykes’s complaint against Home Health were wholly derivative in nature. There can be no assessment of damages against the employer when no action can be brought against the only negligent party – the employee. Issue 2: Good cause Sykes argues that she established good cause for her failure to serve process on Gambleton within the required time period. A plaintiff who does not serve the defendant within the 120 day period found in M.R.C.P. 4(h) 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. To establish good cause, the plaintiff must demonstrate at least as much as would be required to show excusable neglect, and simple inadvertence or mistake of counsel or ignorance of the rules usually will not suffice. Here, the judge did not abuse his discretion in determining that Sykes failed to prove that she acted diligently in attempting to effect service of process on Gambleton. The evidence presented by Sykes indicates that a total of two phone calls were made to the process server within the 120-day time frame. Sykes does not suggest that she filed even one request for an extension of time. Filing a motion for additional time is not fatal to a showing of good cause but does help support a showing of diligence. |
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