William Kingston v. Splash Pools of Mississippi, Incorporated
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2005-CA-02257-COA
WILLIAM KINGSTON
APPELLANT
v.
SPLASH POOLS OF MISSISSIPPI,
INCORPORATED AND DONNA N. PARKER
WITHROW, JOINTLY AND SEVERALLY
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEES
10/20/2005
HON. SAMAC S. RICHARDSON
RANKIN COUNTY CIRCUIT COURT
T. JACKSON LYONS
MONA VIDIN PATEL
JAMES D. HOLLAND
CIVIL - PERSONAL INJURY
DISMISSED
AFFIRMED - 05/08/2007
BEFORE MYERS, P.J., CHANDLER AND GRIFFIS, JJ.
CHANDLER, J., FOR THE COURT:
¶1.
William Kingston filed suit against Splash Pools of Mississippi, Inc. and its corporate
manager after one of its employees allegedly attacked and beat Kingston while Kingston was a
patron. Kingston failed to serve process on the defendants within the 120-day time period
prescribed by Mississippi Rule of Civil Procedure 4(h). The defendants moved to dismiss the suit,
and the lower court granted the motion due to untimely service of process. Kingston appeals,
arguing:
I. WHETHER THE TRIAL COURT ERRED BY BASING ITS DISMISSAL ON THE FACT
THAT KINGSTON DID NOT REQUEST ADDITIONAL TIME TO SERVE THE DEFENDANT.
II. WHETHER THE TRIAL COURT ERRED BY NOT CONSIDERING KINGSTON’S
ATTORNEY’S ASSERTIONS THAT DILIGENT EFFORTS WERE MADE TO SERVE THE
DEFENDANTS.
FACTS
¶2.
Kingston filed a complaint against Splash Pools on December 6, 2002. He alleged that the
corporate defendant, Splash Pools, and its officer, Donna N. Parker Withrow ("Withrow"), were
negligent in failing to protect Kingston, an invitee, from one of Splash Pool's employees, John
Withrow (“John”).1 Withrow was the corporate agent for service of process for the company. She
was also married to John’s father. John allegedly attacked Kingston while Kingston was in the store
and beat him. Negligent hiring and retention claims were also included in the cause of action.
¶3.
During the year and eleven months between the initial filing of the complaint and the final
receipt of summons, John and his father both passed away and Splash Pools dissolved as a corporate
entity. Withrow remarried and changed her name and address during this period. Summons for
Withrow was issued on September 10, 2004, but personal service was not obtained on her until
November 9, 2004. Splash Pools and Withrow answered on December 8, 2004, and raised the
affirmative defense that process and service of process were insufficient. They claimed that
Kingston had not met the 120-day time limit, had not properly asked for any additional time
extensions, and that the case should therefore be dismissed.
¶4.
A hearing was subsequently held in which Kingston asserted that diligent efforts were made
within those two years to find Splash Pools and Withrow. Kingston cited difficulties because Splash
Pools closed its storefront business, did not leave a forwarding address, and then dissolved the
corporation entirely. Kingston also noted that John was deceased, and that Withrow had changed
her name. However, no specifics as to how, when and where the process server made attempts to
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Donna N. Parker Withrow has since remarried and changed her last name to “Foster.”
However, due to the style of the case, we will refer to her former name, “Withrow.”
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effectuate service of process were given to the court, and an affidavit from the process server was
not provided to show any sort of detail that could have demonstrated good cause. Thus, the lower
court dismissed the case without prejudice. At the time of dismissal, the statute of limitations for
the claims had expired.
STANDARD OF REVIEW
¶5.
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
as to whether “the trial court abused its discretion and whether there was substantial evidence
supporting the determination.” Rains v. Gardner, 731 So. 2d 1192, 1197-98 (¶19) (Miss. 1999).
LAW AND ANALYSIS
I. WHETHER THE TRIAL COURT ERRED BY BASING ITS DISMISSAL ON THE FACT
THAT KINGSTON DID NOT REQUEST ADDITIONAL TIME TO SERVE THE
DEFENDANT.
¶6.
Kingston asserts that the lower court based its ruling on Kingston’s failure to file a motion
for additional time or that the court, at the very least, implied that the failure to request additional
time was required. Upon a thorough review of the record, we disagree. The lower court found that
Splash Pools and Withrow were not timely served with a copy of the summons and complaint as
required by Rule 4(h) of the Mississippi Rules of Civil Procedure, and stated in its reasoning that
Kingston failed to show good cause for the delay. Rule 4(h) states:
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 motion with notice to such party or upon motion.
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Thus, failure to serve process within 120 days will only cause a complaint to be dismissed if the
plaintiff cannot show good cause for failing to meet the deadline. The plaintiff bears the burden of
establishing good cause. M.R.C.P. 4(h).
¶7.
Kingston asserts that “Rule 4(h) does not require that a motion for additional time for service
of process be filed within 120 days of the filing of the complaint.” Webster v. Webster, 834 So. 2d
26, 28 (¶8) (Miss. 2002). Our supreme court has further stated that “although there is no
requirement of a motion for additional time, ‘the better method to be utilized in future cases would
be for plaintiffs [sic] counsel to seek authority for extensions from the court, rather than unilaterally
making this decision himself.’" Montgomery v. SmithKline Beecham Corp., 910 So. 2d 541, 545
(¶13) (Miss. 2005) (quoting Fortenberry v. Mem'l. Hosp., 676 So. 2d 252, 256 (Miss. 1996)). In
addition, the courts have held that if the plaintiff is unable to meet the 120-day deadline, "a diligent
plaintiff should file [a motion for additional time to serve process] within the 120-day time period.
Such diligence would support an allegation that good cause exists for failure to serve process
timely." Webster, 834 So. 2d at 29 (¶11).
¶8.
The motion for additional time must be filed before the expiration of the 120-day time
period. Mitchell v. Brown, 835 So. 2d 110, 112 (¶10) (Miss. Ct. App. 2003). Kingston did not file
such a request before the 120-day time limit lapsed. The lower court noted Kingston’s failure in
reference to the fact that since no motion was filed and no order given to extend the time in which
to serve process, then Kingston had the burden of showing good cause for the delay. The lower
court further noted that no evidence was presented to the court to establish good cause beyond broad
assertions of diligence at the hearing on the motion to dismiss. Therefore, we find nothing in the
record to support Kingston’s argument that the lower court either mandated or implied that filing
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a motion to request additional time was required. Accordingly, Kingston’s first issue is without
merit.
II. WHETHER THE TRIAL COURT ERRED BY NOT CONSIDERING KINGSTON’S
ATTORNEY’S ASSERTIONS THAT DILIGENT EFFORTS WERE MADE TO SERVE
THE DEFENDANTS.
¶9.
Kingston next argues that the lower court erred by not considering statements made by his
attorney in the hearing to dismiss the case. Kingston maintains that his attorney had personal
knowledge of where and when the process server attempted service, and the court disregarded those
assertions that diligent efforts were made to effectuate service of process.
¶10.
While Kingston or his attorney may have had personal knowledge of the server’s attempts,
the record is void of any detail to support such an assertion. For instance, no dates, times or
locations were given to prove that any efforts had been made to serve process on the defendants
within the 120-day time period. Likewise, no affidavit from the process server exists to demonstrate
if any attempts were made, and the record is void of any returns of the summons originally issued.
The only indication in the record which would support a finding that Kingston may have attempted
to serve process during that time period was a statement that “some attempts” were made. No
further details were given.
¶11.
Our supreme court has stated that the court “cannot rely solely on an inference based upon
the unsworn statement of an attorney made during argument at a hearing without any evidence to
support his assertion of fact.” Smith County School Dist. v. McNeill, 743 So. 2d 376, 379 (¶11)
(Miss. 1999). Thus, some level of detail appears to be required to demonstrate a showing of good
cause. A plaintiff attempting to establish good cause must show "at least as much as would be
required to show excusable neglect, as to which simple inadvertence or mistake of counsel or
ignorance of the rules usually does not suffice." Watters v. Stripling, 675 So. 2d 1242, 1243 (Miss.
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1996) (quoting Systems Signs Supplies v. U.S. Dep't of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990)).
A leading treatise has expounded upon what constitutes good cause:
[G]ood cause is likely (but not always) to be found when the plaintiff's failure to
complete service in a 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.
Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1137, at 342 (3d ed.
2000).
¶12.
Kingston claims that the present case is similar to Bennett v. McCaffrey, 937 So. 2d 11, 13
(¶11) (Miss. 2006), in which our supreme court found good cause shown to extend the time
permitted for service of process. Bennett involved a personal injury automobile case in which the
plaintiff sued the motorist defendant and his insurer. In Bennett, the plaintiff failed to serve process
on the defendant within the 120-day time period. Unlike the present case, however, the plaintiffs
provided specific dates and information regarding attempts to serve process. In addition, the
plaintiffs utilized several different methods of serving process, including service by publication and
through the county sheriff, as well as a subpoena to the Commissioner of Insurance in an attempt
to locate the defendant’s insurer. The plaintiffs also filed motions to extend the time period for
service of process. Id. As noted above, the record before us is void of any similar evidence.
¶13.
Kingston further asserts that the lower court improperly refused to accept his attorney’s
statements as true and, therefore, did not consider them in his determination. Upon a thorough
review of the record, we find Kingston’s argument to be without merit.
¶14.
The lower court stated in its order that the only evidence before the court was the
“unsubstantiated oral representations of the Plaintiff’s attorney which is not sufficient as a matter
of proof as to what attempts were made and when they were made to serve process.” The court did
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not base its ruling on whether the attorney’s statements were true or false. Rather, the court
concluded that a general statement that “some attempts” were made did not rise to the level required
for good cause.
¶15.
The purpose behind the 120-day rule is to provide the plaintiff with an adequate amount of
time in which to find the defendant and provide notice of the claim. If the plaintiff is unable to
locate or serve the defendant within that time frame, the plaintiff has several options from which to
proceed. The plaintiff may request additional time in which to file, dismiss and re-file the claim,
or demonstrate to the court good cause as to why the defendant was not properly served within the
time allowed.
¶16.
Where, as in the present case, the record is void of any example of diligent effort made to
serve process, then we cannot say that good cause has been shown. Therefore, we hold that the
lower court did not abuse its discretion, and we affirm the dismissal of the case for failure to serve
process within the time prescribed by M.R.C.P. 4(h).
¶17. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
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