Shelton v. Lift, Inc.
| Docket Number: | 2006-CA-01750-COA Linked Case(s): 2006-CA-01750-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 10-09-2007 Opinion Author: IRVING, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Personal injury - Failure to effect service of process - M.R.C.P. 4(h) - Good cause Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Dismissal Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 09-11-2006 Appealed from: LEE COUNTY CIRCUIT COURT Judge: Sharion R. Aycock Disposition: JUDGMENT OF DISMISSAL ENTERED. Case Number: CV05-158(A)L |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | TERRY E. SHELTON |
MICHAEL G. THORNE |
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| Appellee: | LIFT, INC. | MICHAEL REED MARTZ | ||
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 - Failure to effect service of process - M.R.C.P. 4(h) - Good cause |
| Summary of the Facts: | Terry Shelton filed a complaint against Lift Inc., alleging that a driver for Lift negligently operated a bus on which he was a passenger. The court dismissed the complaint with prejudice because Shelton failed to effect service of process within the 120-day period and because service was not made before the statute of limitations expired. Shelton appeals. |
| Summary of Opinion Analysis: | Shelton argues that he is entitled to relief because his attorney’s paralegal miscalculated the date on which the 120-day period expired. To establish good cause under M.R.C.P. 4(h), the plaintiff must demonstrate 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. There is no dispute that Shelton’s attorney’s paralegal incorrectly calculated the expiration date for the 120-day period. Nevertheless, the law in this State is clear that simple inadvertence or mistake of counsel is neither good cause nor excusable neglect. Despite the provision in Rule 4(h) that the dismissal shall be without prejudice, Shelton suffered no prejudice, as the applicable three-year statute of limitations expired on March 13, 2006, and service was not effected until April 5, 2006. |
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