Powe v. ByrdPowe v. Byrd
¶ 1. This appeal involves the consolidation of two cases. Plaintiff Nancy Powe‘s (“Powe“) original medical malpractice complaint (“Original Complaint“) was dismissed on April 1, 2002, by the Circuit Court of Clarke County for failure to timely serve the remaining defendant, The Medical Group Clinic, with a summons and complaint within the applicable 120 day time period under
FACTS
¶ 2. Cecil Powe was treated for gastritis and hemorrhoids by Dr. O.W. Byrd on multiple occasions from January 4, 1996, to January 6, 1998. In March of 1998, when treated at Rush Memorial Hospital, he was diagnosed with metastic adenocarcinoma in his colon and lungs; he died on August 10, 1998.
¶ 3. On August 3, 2000, Powe filed the Original Complaint alleging medical malpractice. The other defendants were dismissed by agreed order. Service was not made upon the remaining defendant until December 4, 2000, which was 3 days after the 120 day deadline required by
¶ 4. Powe‘s counsel contends that he directed his secretary to tell the process server to deliver the Original Complaint on December 1, 2000. The process server was located in Hinds County, Mississippi, and the process was to be served in Quitman, Mississippi. The process server contends that he was never told to deliver the complaint on December 1, 2000, and did not deliver the complaint until the next business day, which was December 4, 2000. Powe alleges that she did not contact the process server sooner because she was waiting for an expert opinion from an oncologist regarding the merits of the case. Powe received this opinion on December 1, 2000, at which time the secretary was told to contact the process server and have him deliver the Original Complaint on that day.
¶ 5. On April 1, 2002, the circuit court dismissed the Original Complaint without prejudice for failure to serve process within the 120 day time limit, finding that Powe did not show good cause for the failure to serve within the 120 days. Powe filed the Second Complaint on April 1, 2002, which was dismissed with prejudice on September 27, 2002, as barred by the two-year statute of limitations set forth in
I. The Circuit Court erred by refusing to extend the 120 day period for service of process under
Mississippi Rule of Civil Procedure 4(h) .
II. Mississippi courts have relaxed the application of
Mississippi Rule of Civil Procedure 4(h) .
III. The lower court erred when dismissing the April 1, 2002 complaint.
IV. The April 1, 2002 complaint was filed within the statute of limitations pursuant to the discovery rule.
ANALYSIS
I. Mississippi Rule of Civil Procedure 4(h).
¶ 6. “A trial court‘s finding of fact on the existence of good cause for the delay in service of process has been deemed a discretionary ruling ... and entitled to deferential review on appeal.” Holmes v. Coast Transit Auth., 815 So.2d 1183, 1185 (Miss.2002) (quoting Rains v. Gardner, 731 So.2d 1192, 1197-98 (Miss.1999)). “However, a decision to grant or
If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court‘s own initiative with notice to such party or upon motion.
¶ 7. Powe argues that the process server was not contacted until the 120th day because of her attorney‘s attempts to comply with
¶ 8. Powe relies on Holmes, which stated:
“good cause is likely (but not always) to be found when the plaintiff‘s failure to complete service in timely fashion is a result of the conduct of a third person, typically the process server, the defendant has evaded service of the process or engaged in misleading conduct, the plaintiff has acted diligently in trying to effect service or there are understandable mitigating circumstances, or the plaintiff is proceeding pro se or in forma pauperis.”
Holmes, 815 So.2d at 1186 (quoting 4B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1137, at 342 (3d ed.2000)). In Holmes, this Court held that a plaintiff‘s good faith negotiations with the defendant did not constitute good cause for failure to timely serve process. Id. at 1187. In ruling on the matter we stated that, “Holmes makes no claim that he acted diligently in attempting to effect service of process. Reliance on indefinite good faith negotiations clearly subverts the purpose of
¶ 9. Holmes does not support Powe‘s argument that she acted with good cause. In Holmes, the plaintiff at least tried to serve process on the defendant a day after the complaint was filed by mailing the process. Id. at 1185. Powe waited until the last day of the 120 day period to contact the process server, and process was not served. These actions do not constitute diligence in effecting service.
¶ 10. This Court has stated that, “to establish good cause 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 or the rules usually does not suffice.” Watters v. Stripling, 675 So.2d 1242, 1243 (Miss.1996) (quoting Peters v. United States, 9 F.3d 344 (5th Cir.1993)). Also, inability to refile the suit because of a statute of limitations bar does not preclude dismissal. Watters, 675 So.2d at 1244.
¶ 11. This Court has set a high standard for establishing good cause. In Perry v. Andy, 858 So.2d 143 (Miss.2003), this Court held that pro se litigants who defectively served process on a defendant by handing him a copy of the complaint, and who later served process correctly 7 days
¶ 12. Powe further argues that the Court of Appeals relaxed the application of
¶ 13. This Court finds that the circuit court did not err in ruling that Powe failed to show good cause for lack of timely service. Powe‘s reliance on Holmes and King is misplaced. King involved an amended complaint being filed within the statute of limitations, and Holmes involved defective service of process with an ultimate decision that good faith negotiations do not constitute good cause. We find that waiting until the last day to serve process on a defendant does not constitute good cause. Powe knew that it was of the utmost importance to have the process served on or before that day and did not accomplish same. For these reasons, the circuit court did not err in holding that Powe failed to show good cause for her delay in serving process.
II. The discovery rule; Miss.Code Ann. § 15-1-36.
¶ 14. The standard of review in Mississippi of questions of law is de novo. Miss. Transp. Comm‘n v. Fires, 693 So.2d 917, 920 (Miss.1997). The “application of a statute of limitations is a question of law.” Sarris v. Smith, 782 So.2d 721, 723 (Miss.2001).
¶ 15. Medical malpractice claims must be filed “within two years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered.”
¶ 16. For purposes of the discovery rule, the two-year period begins to run when “the patient can reasonably be held to have knowledge of the injury itself, the cause of the injury, and the causative relationship between the injury and the conduct of the medical practitioner.” Sarris, 782 So.2d at 723 (quoting Smith v. Sanders, 485 So.2d 1051, 1052 (Miss.1986)).
¶ 17. This Court rejects Powe‘s argument that the statute of limitations did not start running until December 1, 2000 (the day Powe received the expert opinion). Cecil received treatment for gastritis and
III. Savings statute of Miss.Code Ann. § 15-1-69.
¶ 18. According to
If in any action, duly commenced within the time allowed, the writ shall be abated, or the action otherwise avoided or defeated, by the death of any party thereto, or for any matter of form, or if, after verdict for the plaintiff, the judgment shall be arrested, or if a judgment for the plaintiff shall be reversed on appeal, the plaintiff may commence a new action for the same cause, at any time within one year after the abatement or other determination of the original suit, or after reversal of the judgment therein, and his executor or administrator may, in case of the plaintiff‘s death, commence such new action, within the said one year.
CONCLUSION
¶ 19. The trial court correctly held that Powe failed to show good cause for her failure to timely serve the defendant in her first lawsuit. Further, the trial court did not err by holding that Powe‘s second complaint was barred by the statute of limitations. Therefore, we affirm both judgments of the Clarke County Circuit Court.
¶ 20. AFFIRMED.
SMITH, C.J., COBB, P.J., EASLEY, CARLSON AND DICKINSON, JJ., CONCUR. WALLER, P.J., DIAZ AND GRAVES, JJ., NOT PARTICIPATING.