Willie C. Johnson v. Brandy N. Thomas
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-CA-01210-COA
WILLIE C. JOHNSON
APPELLANT
v.
BRANDY N. THOMAS, A MINOR, BY AND
THROUGH HER NEXT FRIEND, JOHN
POLATSIDIS
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
6/15/2006
HON. JOSEPH H. LOPER, JR.
WINSTON COUNTY CIRCUIT COURT
ROBERTA LYNN HAUGHTON
J. NILES MCNEEL
CIVIL - PERSONAL INJURY
GRANTED MOTION TO SET ASIDE ORDER
GRANTING ADDITIONAL TIME TO SERVE
PROCESS AND DISMISSED COMPLAINT
WITH PREJUDICE.
REVERSED AND REMANDED – 08/28/2007
BEFORE LEE, P.J., IRVING AND CHANDLER, JJ.
IRVING, J., FOR THE COURT:
¶1.
Willie C. Johnson filed a complaint against Brandy N. Thomas, a minor, through Thomas’s
next friend, John Polatsidis,1 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
1
Polatsidis is Thomas’s step-father and the owner of the vehicle which was involved in the
accident. The original compliant incorrectly named Polatsidis as Thomas’s natural father. The
complaint was later amended to substitute Thomas’s natural mother as a defendant in the lawsuit.
period, Johnson filed a motion for an extension of time to serve process, which was granted by the
Winston County Circuit Court. As such, Johnson was given an additional 120 days to serve process.
Again, 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 trial court also granted. However, the trial 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. Aggrieved, Johnson appeals and
asserts the following issues:
I.
II.
Whether this Court lacked jurisdiction to enter an order dismissing this action
on behalf of Polatsidis and Thomas.
II.
Whether settlement talk with attorney for Thomas and Polatsidis was relevant
information that should have been disclosed to the Court in the Plaintiff’s
motion for additional time to serve process upon them.
IV.
¶2.
Whether John Polatsidis and Brandy N. Thomas were parties to this action.
Whether the Appellant was required to show good cause for additional time
to serve process on Thomas and Polatsidis.
Finding error, we reverse.
FACTS
¶3.
On July 18, 2005, Johnson filed a complaint against Thomas and Polatsidis alleging that he
suffered personal injuries when a vehicle driven by Thomas collided with a vehicle in which he was
a passenger. On November 10, 2005, Johnson filed a motion for an extension of time to serve
process on Thomas and Polatsidis. The trial court granted Johnson’s request and gave him an
additional 120 days to perfect service. On November 22, 2005, unaware of the extension, Thomas
filed a motion to dismiss Johnson’s complaint for lack of service. On March 16, 2006, Johnson filed
a second motion for an extension of time to serve process. Again, the court granted Johnson’s
2
request. On March 27, 2006, Thomas filed a motion to set aside the court’s second order which had
granted Johnson an additional 120 days to serve process.
¶4.
On May 15, 2006, the circuit court held a hearing on Thomas’s motion to set aside the
court’s second order. At the hearing, Thomas’s attorney argued that he did not realize that the court
had granted Johnson an extension when he filed his motion to dismiss. To support his argument,
Thomas’s attorney stated that he checked the court file prior to filing the motion, and the order
granting the extension had not yet been filed. Sometime thereafter he saw that an extension had
been granted. He also stated that he spoke with Johnson’s attorney by telephone on at least two
occasions and that because of these discussions and the filing of his motion to dismiss on November
22, 2005, Johnson’s attorney had a duty to inform the court of his presence in the case at the time
of the second request for an extension.
¶5.
Johnson’s attorney responded that she was under the impression that the court was aware of
Thomas’s attorney’s involvement in the case because the motion to dismiss had been filed and was
a part of the court record. However, the judge stated that he was not aware that the motion had been
filed, and that it was Johnson’s attorney’s responsibility to inform him that the motion had been
filed. As such, the judge concluded that he had granted the extension without full knowledge.
Therefore, he set aside his second order granting Johnson additional time to perfect service and
dismissed the complaint with prejudice.
¶6.
The trial judge then allowed Johnson’s attorney to make a good cause argument as to why
she should be given additional time to serve process. Johnson’s attorney argued that Thomas’s
attorney abandoned his motion to dismiss by failing to send a copy to the judge. Johnson’s attorney
also argued that Thomas was not a party at the time the motion to dismiss was filed because process
3
had not been served. Finally, Johnson’s attorney argued that she had been unable to perfect service
on Thomas and Polatsidis because her investigator had been out of the office. The trial judge ruled
that Johnson’s attorney failed to show good cause for failing to serve Thomas and refused to grant
any additional time for her to serve process.
ANALYSIS AND DISCUSSION OF THE ISSUE
¶7.
Although Johnson lists four issues, we choose not to specifically address them, as they are
subsumed in the ultimate question of whether the trial 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.
¶8.
We will begin our discussion with the first order granting Johnson additional time to serve
process. We note that Thomas’s attorney did not inform the trial court of his outstanding motion
until after the second extension had been granted in March 2006, four months after his motion had
been filed. In Burcham v. Estate of Burcham, 303 So. 2d 476, 480 (Miss. 1974), the Mississippi
Supreme Court held that 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’s attorney allowed the motion to lie
dormant for four months and only sought a hearing after Johnson’s second motion had been granted.
¶9.
Nevertheless, we look at the motion to dismiss to determine what additional information, if
any, may have caused or required the trial judge to deny Johnson’s request. Our review of the
motion finds that it simply states: (1) that neither Thomas nor Polatsidis have been served with
process, (2) that both are residents of Winston County, Mississippi, and (3) that both have resided
in Winston County “prior to and during the inception of this civil action.”
¶10.
In the motion, Thomas argues that, “[r]easonable diligence would have located either
[Thomas] and/or [Polatsidis] for service.” Although Thomas may be correct, we find that the issue
4
of whether Johnson used reasonable diligence is irrelevant. Rule 6(b)(1) of the Mississippi Rules
of Civil Procedure provides:
When by these rules or by notice given thereunder or by order of court an act is
required or allowed to be done at or within a specified time, the court for cause
shown may at any time in its discretion (1) order the period enlarged if request
therefore is made before the expiration of the period originally prescribed or as
extended by a previous order.
(emphasis added). Therefore, 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.
¶11.
We now move to Johnson’s second request for an extension. Thomas makes a similar
argument in her motion to set aside the order granting Johnson’s second request:
The reasons listed in the Order of March 15, 2006, for the purpose of granting
additional time are not good cause since the Defendant has been readily available for
eight months in Winston County for service of process and there is no allegation that
any attempt has been made to serve said Defendant.
We point out again that Rule 6(b)(1) of the Mississippi Rules of Civil Procedure requires that cause,
not good cause, be shown before a trial judge is authorized to grant a request for additional time after
a previous request has already been granted.
¶12.
In her motion, Johnson’s attorney stated that she was still in the process of conducting an
investigation to determine the identity of Thomas’s next friend or parent. Johnson’s attorney also
stated that the investigator who usually conducts these investigations was out on sick leave. Finally,
Johnson’s attorney stated that she was not “absolutely certain” as to Thomas’s whereabouts. The
trial judge determined that the reasons presented by Johnson constituted sufficient cause to allow
him to grant Johnson’s second motion to extend the time to perfect service upon Thomas.
5
¶13.
Thomas also argues in her motion to set aside the second order that “[n]either Defendant nor
her counsel were given [sic] any notice of a Motion for Extension of Time prior to the entry of the
Order.” However, we find that a request for an extension of time to file qualifies as a matter which
may be heard ex parte. Rule 5(a) of the Mississippi Rules of Civil Procedure provides in part:
Service: When Required. Except as otherwise provided in these rules, every order
required by its terms to be served, every pleading subsequent to the original
complaint unless the court otherwise orders because of numerous defendants, every
paper relating to discovery required to be served upon a party unless the court
otherwise orders, every written motion other than one which may be heard ex parte,
and every written notice, appearance, demand, offer of judgment, designation of
record on appeal and similar paper shall be served upon each of the parties.
(emphasis added).
¶14.
A fair reading of Rule 6(b)(1) makes our finding the only logical conclusion. Rule 6(b)(1)
provides that the trial judge can grant a request “with or without motion or notice.” Clearly the rule
is referring to the attorney who is representing the opposing side in the case, and who is not present
when the motion is made. Any other conclusion would be nonsensical. Therefore, based on the
language of Rule 6(b)(1), a motion for an extension of time to serve process is a motion which may
be heard ex parte. 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.
¶15.
At the hearing on Thomas’s motion to set aside the court’s second order, the judge stated the
following:
And I am going to set aside the order granting additional time because, you know,
intentional, or unintentional, I’m of the opinion -- I mean plaintiff’s counsel has
indicated she thought I already was aware of the motion that had been filed by the
defense, but I was not.
And I -- because I was not aware of that, I granted this motion without having all the
information before me. And I should have known that. I believe it was plaintiff’s
6
counsel’s responsibility to notify the Court that there was somebody else involved
in this case already. So I am going to set aside the order granting additional time.
We find nothing in the motion to dismiss which would have provided the judge with any additional
information, other than the fact that the motion existed. Thus, in light of the fact that the judge
found sufficient cause to rule in Johnson’s favor on two occasions, we find that it was arbitrary and
capricious for the judge to void his order granting the second extension. Accordingly, we reverse
and remand this 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.
¶16. THE JUDGMENT OF THE CIRCUIT COURT OF WINSTON COUNTY IS
REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS
OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED AGAINST THE APPELLEE.
KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, BARNES, ISHEE, ROBERTS
AND CARLTON, JJ., CONCUR . GRIFFIS, J., NOT PARTICIPATING.
7
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.