Myrtle Booth v. Steven C. William, M.D.
200 So. 3d 1053
| Miss. Ct. App. | 2016Background
- Myrtle Booth (executor) filed a wrongful-death suit on Jan 6, 2014, alleging medical malpractice in removal of a feeding tube and subsequent complications leading to Gladys Gardner's death.
- Rule 4(h) required service within 120 days (until May 6, 2014). Booth sought and obtained an ex parte 120-day extension on April 30, 2014 (extending service deadline to Sept 3, 2014).
- On Aug 28, 2014 Booth obtained a second ex parte extension (60 days). Service occurred after the first extension expired: Dr. Dixon on Sept 9, 2014; Dr. Williams and Southwest on Sept 11, 2014.
- Defendants moved to dismiss for failure to timely serve process and for lack of good cause; the circuit court set aside both extension orders, found no good cause for the second extension, concluded the statute of limitations had run, and dismissed with prejudice.
- Booth argued the second extension was justified by alleged reliance on out-of-state co-counsel (Chestnut); the court found Blackmon (Booth's local counsel of record) failed to disclose material facts in ex parte requests and did not act diligently.
- On appeal, the Court of Appeals held the trial court abused discretion in setting aside the first extension (only "cause" was required because it was requested within the initial 120 days), but affirmed setting aside the second extension for lack of good cause and affirmed dismissal with prejudice because the statute of limitations expired.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused discretion in setting aside the first extension | Booth: first extension was requested within initial 120 days so only "cause" was required and she satisfied it | Defs: no diligent effort; extensions improvidently granted | Court: first extension was properly granted; setting it aside was an abuse of discretion |
| Whether the second extension required good cause and whether Booth showed it | Booth: relied on co-counsel (Chestnut) failures; Foss supports finding of good cause | Defs: no diligence, no material attempts to obtain process; statute of limitations expired | Court: second extension required good cause; Booth failed to show it; setting aside the second extension was not an abuse |
| Effect of extensions on the statute of limitations tolling | Booth: with valid extensions, limitations tolled until service was effected | Defs: once valid extensions ended, limitations resumed and expired before service | Held: tolling ended when the first extension expired (Sept 3, 2014); limitations then ran and expired Dec 8, 2014; service was untimely |
| Whether dismissal with prejudice was appropriate | Booth: dismissal improper because at least one extension was valid and service occurred thereafter | Defs: dismissal proper because no good cause for second extension and SOL ran | Held: dismissal with prejudice affirmed because SOL expired and no good cause for second extension |
Key Cases Cited
- Buckner v. Copiah County School Dist., 61 So. 3d 162 (Miss. 2011) (trial-court fact findings on good cause reviewed for abuse of discretion)
- Nelson v. Baptist Memorial Hosp.-North Miss., 972 So. 2d 667 (Miss. Ct. App. 2007) (Rule 4(h) 120-day service rule; Rule 6(b) extensions within initial period require only "cause")
- Johnson v. Thomas ex rel. Polatsidis, 982 So. 2d 405 (Miss. 2008) (second/subsequent extensions after initial 120 days require "good cause"; ex parte duty to disclose material facts)
- Foss v. Williams, 993 So. 2d 378 (Miss. 2008) (good cause shown where local counsel's failure caused delay and plaintiff acted promptly upon discovery)
- Lewis Entertain., Inc. v. Brady, 142 So. 3d 396 (Miss. 2014) (factors for evaluating good cause: third-person conduct, evasion, plaintiff diligence, pro se status)
- Collins v. Westbrook, 184 So. 3d 922 (Miss. 2016) (discussing Foss and limits of good-cause findings where local counsel is at fault)
- Montgomery v. SmithKline Beecham Corp., 910 So. 2d 541 (Miss. 2005) (diligence principle: moving for additional time before expiration supports good-cause showing)
- Long v. Memorial Hosp. at Gulfport, 969 So. 2d 35 (Miss. 2007) (affirming dismissal where limitations expired and no timely service)