Johnson v. Thomas


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Docket Number: 2006-CA-01210-COA
Linked Case(s): 2006-CT-01210-SCT ; 2006-CA-01210-COA ; 2006-CT-01210-SCT
Court of Appeals: Opinion Link
Opinion Date: 08-28-2007
Opinion Author: IRVING, J.
Holding: Reversed and Remanded
Additional Case Information: Topic: Personal injury - Setting aside order granting additional time to serve process - M.R.C.P. 6(b)(1) - M.R.C.P. 5(a)
Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ
Non Participating Judge(s): GRIFFIS, J.
Procedural History: Dismissal
Nature of the Case: CIVIL - PERSONAL INJURY
Trial Court: Date of Trial Judgment: 06-15-2006
Appealed from: WINSTON COUNTY CIRCUIT COURT
Judge: Joseph H. Loper
Disposition: GRANTED MOTION TO SET ASIDE ORDER GRANTING ADDITIONAL TIME TO SERVE PROCESS AND DISMISSED THE COMPLAINT WITH PREJUDICE
Case Number: 2005-CV-136
Note: This opinion was reversed by the Supreme Court of Mississippi on 5/22/2008. The SCT opinion may be viewed at: http://www.mssc.state.ms.us/Images/Opinions/CO48370.pdf
  Party Name: Attorney Name:  
Appellant: WILLIE C. JOHNSON




 ROBERTA LYNN HAUGHTON



  
Appellee: BRANDY N. THOMAS, A MINOR, BY AND THROUGH HER NEXT FRIEND, JOHN POLATSIDIS J. NILES MCNEEL  
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Topic: Personal injury - Setting aside order granting additional time to serve process - M.R.C.P. 6(b)(1) - M.R.C.P. 5(a)
Summary of the Facts: Willie Johnson filed a complaint against Brandy Thomas, a minor, through Thomas’s next friend, John Polatsidis, alleging that he suffered personal injuries and damages as a result of Thomas’s negligent operation of a motor vehicle. Prior to the expiration of the 120-day serving period, Johnson filed a motion for an extension of time to serve process, which was granted. Prior to the expiration of the extended 120-day period, Johnson filed a second motion for an extension of time to serve process, which the court also granted. However, the court dismissed the complaint with prejudice after the court learned that Thomas had filed a motion to dismiss shortly after Johnson was granted the first extension. Thomas appeals.
Summary of Opinion Analysis: Johnson argues that the judge abused his discretion in setting aside his second order granting Johnson additional time to serve process and in dismissing Johnson’s case with prejudice. Thomas’s attorney did not inform the trial court of his outstanding motion until after the second extension had been granted four months after his motion had been filed. A movant may not allow a motion to lie dormant but must bring it to the attention of the trial court and seek a hearing upon it. Thomas argues that reasonable diligence would have located either Thomas and/or Polatsidis for service. Although Thomas may be correct, the issue of whether Johnson used reasonable diligence is irrelevant. Under M.R.C.P. 6(b)(1), it was within the trial judge’s discretion to grant Johnson’s request without Johnson having to show good cause, since Johnson’s initial request for an extension was filed before the expiration of 120 days. Thomas also argues that neither she nor her counsel was given any notice of a Motion for Extension of Time prior to the entry of the order. However, a request for an extension of time to file qualifies as a matter which may be heard ex parte under M.R.C.P. 5(a) and M.R.C.P. 6(b)(1). As such, Johnson’s failure to serve Thomas’s attorney with a copy of the motion for an extension was not a dereliction sufficient to justify setting aside the extension. In light of the fact that the judge found sufficient cause to rule in Johnson’s favor on two occasions, it was arbitrary and capricious for the judge to void his order granting the second extension.


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