Johnson v. Thomas
| Docket Number: | 2006-CT-01210-SCT Linked Case(s): 2006-CA-01210-COA ; 2006-CA-01210-COA ; 2006-CT-01210-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 05-22-2008 Opinion Author: Carlson, J. Holding: THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE JUDGMENT OF THE WINSTON COUNTY CIRCUIT COURT IS REINSTATED AND AFFIRMED |
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| Additional Case Information: |
Topic: Personal injury - Extension of time to serve process - M.R.C.P. 4(h) - Good cause - M.R.C.P. 6(b)(1) - M.R.C.P. 4(c)(1) - Obligation of attorney - Miss.R.Prof.Cond. 3.3(d) Judge(s) Concurring: Smith, C.J., Waller, P.J., Easley, Dickinson, Randolph and Lamar, JJ. Dissenting Author : Graves, J., without separate written opinion. Concurs in Result Only: Diaz, P.J. Procedural History: Dismissal Nature of the Case: CIVIL - PERSONAL INJURY Writ of Certiorari: yes Appealed from Court of Appeals |
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| 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 |
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| Note: | This opinion reverses the Court of Appeals' opinion from .8/28/2007. The COA opinion may be viewed at: http://www.mssc.state.ms.us/Images/Opinions/CO42736.pdf | |
| Party Name: | Attorney Name: | |||
| Appellant: | WILLIE C. JOHNSON |
ROBERTA LYNN HAUGHTON |
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| Appellee: | BRANDY N. THOMAS, A MINOR, BY AND THROUGH HER NEXT FRIEND, JOHN POLATSIDIS | J. NILES McNEEL |
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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 - Extension of time to serve process - M.R.C.P. 4(h) - Good cause - M.R.C.P. 6(b)(1) - M.R.C.P. 4(c)(1) - Obligation of attorney - Miss.R.Prof.Cond. 3.3(d) |
| Summary of the Facts: | Willie Johnson filed a complaint against Brandy Thomas. Since Thomas was then a minor, she was sued by and through her next friend, John Polatsidis, and “Doe Defendant A” was also named as a defendant. Johnson asserted that he had suffered personal injuries as a result of a motor vehicle accident on July 16, 2002, when a vehicle driven by Thomas collided with a vehicle in which Johnson was a passenger. At the time of the filing of the complaint on July 18, 2005, process was not issued for service upon the defendants. On November 10, 2005, 115 days after filing the complaint, Johnson filed a motion for an extension of time to serve process on Thomas, stating that his attorney was conducting an ongoing investigation to determine the identity of Thomas’s “next friend or parent” and that the investigator had been out on sick leave. The trial court granted Johnson’s motion and gave Johnson an additional 120 days to perfect service on Thomas. On November 22, 2005, Thomas, unaware that Johnson had received an extension, filed a motion to dismiss Johnson’s complaint for lack of service of process. On March 16, 2006, Johnson filed a second motion for an extension of time to serve process. The trial court granted Johnson’s second request for an extension. On March 27, 2006, Thomas filed a motion to set aside the trial court’s second order granting Johnson an extra 120 days in which to serve process. On May 3, 2006, Johnson filed an amended complaint, with the only substantive change in the amended complaint being the allegation that Sherry Polatsidis was the mother and next friend of Brandy Thomas. After a hearing on the matter, the trial court’s second order granting Johnson additional time to perfect service was set aside and the complaint was dismissed with prejudice. Johnson appealed, and the Court of Appeals reversed and remanded the case to the trial court with instructions to allow Johnson an extension of time to perfect service of process upon Thomas, provided that the extension may be limited to the number of days remaining on the second extension before it was voided. The Supreme Court granted certiorari. |
| Summary of Opinion Analysis: | M.R.C.P. 4(h) requires a summons and a copy of the complaint to be served upon the defendant within 120 days after filing of the complaint. If service of process has not been completed within 120 days, the party responsible for service must show good cause why service had not been issued. Thomas argues that when reading Rule 4(h) together with M.R.C.P. 6(b)(1), the “for cause shown” requirement set out in Rule 6(b)(1) applies only to an extension of time granted within the initial 120 days of the filing of the complaint and that “good cause” thus must be shown to justify the granting of a second extension of time to serve process upon a defendant. Pursuant to Rule 4(h), when read in conjunction with Rule 6(b)(1), Johnson, in a proper ex parte proceeding within the initial 120-day period prescribed by Rule 4(h), was entitled to an order from the trial judge for an enlargement of time in which to serve process “for cause shown.” On the other hand, once a party has received a first extension of time under Rule 4(h) in which to serve process, a second or subsequent extension of time to effectuate service of process may be granted by the trial court only upon a showing of “good cause.” In other words, once the initial, 120-day period after filing the complaint has elapsed, good cause is required to avoid dismissal. Rule 4(h) requires “good cause” after the expiration of 120 days. Because Rule 4(h) is the specific rule applicable in today’s case and Rule 6(b)(1) is a general-application rule, the language in Rule 4(h) controls. Johnson’s attorney had a second ex parte contact with the trial judge to secure the second extension of time to serve process. While Johnson’s attorney is not being condemned for this action, Johnson’s attorney had an obligation under Rule 3.3(d) of the Mississippi Rules of Professional Conduct to inform the trial judge of certain facts, such as Thomas being represented by an attorney, the identity of that attorney, Thomas’s previous filing of a motion to dismiss, and the settlement negotiations between the attorneys. The trial judge did not have all the material facts before him when granting the second extension of time. The trial judge gave Johnson’s attorney an opportunity to show “good cause” as to why a second extension of time should be granted after receiving all the relevant facts, and Johnson’s attorney was unable to do so. Any person in the state of Mississippi who is not a party and is not less than 18 years of age may act as a process server under M.R.C.P. 4(c)(1). Thus, the trial judge did not abuse his discretion in finding that the fact that the investigator for Johnson’s attorney was out of the office for a substantial period of time, was not “good cause” for the failure to serve the defendants in this case. |
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