Dorothy SYKES, Appellant v. HOME HEALTH CARE AFFILIATES, INC., Appellee.
-- October 02, 2012
Carter Dobbs Jr., attorney for appellant.John Lewis Hinkle IV, attorney for appellee.
¶ 1. Dorothy M. Sykes appeals the judgment of the Lowndes County Circuit Court affirming the order of the County Court of Lowndes County, which granted summary judgment to Home Health Care Affiliates Inc. (Home Health). Sykes raises the following assignments of error: (1) whether Sykes had good cause for not serving Defendant Zelp Gambleton with process; (2) whether the cause of action against Defendant Home Health is barred by the running of the statute of limitations against its employee, Gambleton; and (3) whether it was necessary that Gambleton be served with process. Finding no error, we affirm.
¶ 2. On May 8, 2009, Sykes instituted this action in the County Court of Lowndes County against Home Health and its employee, Gambleton. The action arose from a motor-vehicle accident that occurred on or about May 8, 2006, in which a vehicle driven by Gambleton collided with a vehicle occupied by Sykes. As a result, Sykes alleged that she suffered personal injuries. In her complaint, Sykes alleged that Gambleton negligently and carelessly operated his vehicle; negligently and carelessly failed to keep a proper lookout; negligently and carelessly failed to keep his vehicle under proper and easy control; and negligently and carelessly failed to avoid the collision. Sykes made the following allegations in her complaint as to Home Health's liability for Gambleton's actions:
Defendant Zelp Gambleton was an employee of Defendant [Home Health] and was operating a vehicle belonging to Defendant [Home Health] within the scope of his employment. Therefore, all of the foregoing enumerated ․ actions of Defendant Zelp Gambleton, and also his negligence, are, as a matter of law, attributable to and imputed to Defendant [Home Health].
Sykes timely served Home Health in accordance with Rule 4(h) of the Mississippi Rules of Civil Procedure. Gambleton, however, was never served.1
¶ 3. On September 28, 2009, Home Health filed a motion for summary judgment in the county court. On April 23, 2010, the county court entered an order granting summary judgment to Home Health and dismissing with prejudice the cause of action against Home Health. The county court also dismissed the claims against Gambleton without prejudice. In its order, the county court ruled that (1) the action against Home Health was barred by the running of the applicable statute of limitations against its employee, Gambleton; and (2) Sykes failed to establish good cause for failing to timely serve Gambleton within the 120 days provided by Rule 4(h).
¶ 4. Sykes appealed the county court's ruling to the Circuit Court of Lowndes County. On May 26, 2011, the circuit court affirmed the ruling of the county court. Sykes now appeals to this Court.
STANDARD OF REVIEW
¶ 5. This Court employs a de novo standard of review when reviewing a trial court's grant of summary judgment. Webb v. Imperial Palace of Miss., LLC, 76 So.3d 759, 759–60 (¶ 3) (Miss .Ct.App.2011). Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). We will consider all of the evidence before the trial court in the light most favorable to the non-moving party. Webb, 76 So.3d at 760 (¶ 3). The party opposing the motion “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” M . R.C.P. 56(e). ¶ 6. Additionally, this Court recognizes that we engage in a de novo review when considering issues of law. J & J Timber Co. v. Broome, 932 So.2d 1, 3 (¶ 8) (Miss.2006). “The application of a statute of limitations is a question of law.” Lynch v. Liberty Mut. Ins. Co., 909 So.2d 1289, 1292 (¶ 8) (Miss.Ct.App.2005) (quotations omitted).
A. DERIVATIVE CLAIMS2
¶ 7. Sykes admits that the statute of limitations ran against Gambleton. However, Sykes claims that this does not affect the continued prosecution of her suit against Home Health. Specifically, Sykes argues that it was not necessary that Home Health's employee, Gambleton, be served with process in order for the suit against Home Health to proceed because reasonable efforts were made to serve process upon Gambleton. Sykes claims that since reasonable efforts were made to serve Gambleton, the cause of action against Home Health is not barred by the running of the statute of limitations against Gambleton. After reviewing the record, we find no merit to Sykes's argument.
¶ 8. The Mississippi Supreme Court has stated that “a person named as a defendant in a [complaint] does not become a party until served with process.” Stanley v. Allstate Ins. Co., 465 So.2d 1023, 1025 (Miss.1985). On May 8, 2009, Sykes filed suit against both Gambleton and Home Health based on a motor-vehicle accident that occurred on May 8, 2006. Sykes timely served Home Health. Sykes, however, failed to serve Gambleton within the required time period.3 Thus, Gambleton never became a party to the suit. The only action that Sykes brought against Home Health was asserted vicariously through the actions of Gambleton. As such, the allegations in Sykes's complaint against Home Health were wholly derivative in nature.
¶ 9. In Broome, 932 So.2d at 6 (¶ 19), the supreme court held that “[a]n action against an employer based on the doctrine of respondeat superior is a derivative claim arising solely out of the negligent conduct of its employee within the scope of his or her employment.” In Broome, the plaintiff settled with the employee, released him, and then sued the employer, charging it with vicarious liability for the negligence of its employee. Id. at 2–3 (¶¶ 2–6). The supreme court held that “the release of a tortfeasor operates to bar claims predicated on vicarious liability against the tortfeasor's employer.” Id. at 9(¶ 30). The court explained that “[t]here can be no assessment of damages against the employer when no action can be brought against the only negligent party—the employee.” Id. at 6 (¶ 21).4
¶ 10. As admitted by Sykes, the statute of limitations against Gambleton ran.5 In Lowery v. Statewide Healthcare Service, Inc., 585 So.2d 778, 779 (Miss.1991), the supreme court found that a statute-of-limitations bar against a nurse in a medical-malpractice suit also barred suit against the nurses's employer where the employer's “liability was predicated solely upon the doctrine of respondeat superior[.]” The supreme court provided that “[i]t is generally held that a suit barred by a statute of limitation against an agent will likewise bar the same claim against the principal whose liability is based solely upon the principal and agency relationship, and not some act or conduct of the principal separate and apart from the act or conduct of the agent.” Id. at 780; see also, e.g., Lynch, 909 So.2d at 1292–93 (¶ 14).
¶ 11. Sykes filed her complaint against Home Health and its employee, Gambleton. The basis for Sykes's cause of action against Home Health stems solely from the alleged negligent actions of Gambleton. While Home Health was timely served with process, Gambleton was not timely served within the 120 days allotted by Rule 4(h), and the statute of limitations as to Gambleton expired. Under Mississippi precedent, since the claims against Home Health were wholly derivative of the actions of Gambleton, we find that the claims against Home Health are likewise barred.
B. GOOD CAUSE
¶ 12. While Sykes admits that statute of limitations has run against Gambleton, she argues that she established “good cause” for her failure to serve process on Gambleton within the required time period.
¶ 13. Under Rule 4(h), Sykes was required to effect service upon the defendants, Gambleton and Home Health, within 120 days of the filing of her complaint.6 Sykes failed to serve Gambleton within the required time period.
¶ 14. “A plaintiff who does not serve the defendant within the 120 day period must either re-file the complaint before the statute of limitations ends or show good cause for failing to serve process on the defendant within that 120 day period; otherwise, dismissal is proper.” Holmes v. Coast Transit Auth., 815 So.2d 1183, 1185 (¶ 7) (Miss.2002). This action arose from a motor-vehicle accident that occurred on or about May 8, 2006. Sykes filed her complaint against Gambleton and Home Health on May 8, 2009. While the filing of Sykes's complaint tolled the statute of limitations for 120 days, since service was not perfected during that time period, the statute of limitations began to run at the expiration of the 120 days. See Holmes, 815 So.2d at 1185 (¶ 7). Therefore, Sykes's suit is barred by the applicable three-year statute of limitations unless she can show good cause for failing to serve process on Gambleton within the 120–day period.
¶ 15. In an effort to show “good cause,” Sykes submits the following set of facts. Sykes contends that process for Gambleton issued on May 8, 2009, and was forwarded to the Lowndes County Sheriff for service on June 22, 2009. Sykes further claims that on July 8, 2009, the secretary for Sykes's attorney spoke on the telephone with Lowndes County Deputy Sheriff Mike Lollar. Deputy Lollar allegedly stated that he had been to Gambleton's address, as set out in the accident report, several times; that a female at that address stated that Gambleton would occasionally come by that address; and that Deputy Lollar left his card to be given to Gambleton with a request for Gambleton to call Deputy Lollar. Deputy Lollar alleged that he had served Gambleton in another case and that Gambleton had contacted Deputy Lollar after he left Gambleton his telephone number. Sykes alleges that Deputy Lollar also stated that he would call Sykes's attorney's office and update him on the status of the attempted service of process.
¶ 16. Sykes claims that her attorney's secretary called again on July 15, 2009, and spoke with Deputy Lollar, who allegedly stated that he had called the female at the address associated with Gambleton and that she claimed that she gave Gambleton Deputy Lollar's card.
¶ 17. We have held that “[t]o 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 of the rules usually does not suffice.” Spurgeon v. Egger, 989 So.2d 901, 907 (¶ 20) (Miss.Ct.App.2007). Regarding this “good cause” standard, the Mississippi Supreme Court has cited Wright and Miller's treatise on federal practice and procedure for the following concept:
[G]ood 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 (¶ 12) (quoting 4B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1137, at 342 (3d 2000)). “ ‘Good cause’ can never be demonstrated where plaintiff has not been diligent in attempting to serve process.” Spurgeon, 989 So.2d at 907 (¶ 21).
¶ 18. Here, the record reflects no abuse of discretion by the circuit judge in determining that Sykes failed to prove that she acted diligently in attempting to effect service of process on Gambleton.7 The evidence presented by Sykes indicates that a total of two phone calls were made to Deputy Lollar, the process server, within the 120–day time frame. Sykes does not suggest that she filed even one request for an extension of time to serve process on Gambleton. While the failure to file a motion for an extension of time is not fatal to Sykes's showing of good cause, the supreme court has held that “if it appears process cannot be served within the 120–day period, ‘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.’ “ Montgomery v. SmithKline Beecham Corp., 910 So.2d 541, 545 (¶ 14) (Miss.2005).8
¶ 19. Sykes, in the present action, chose to do very little. The record reflects no indication of “due diligence” or “good cause” by Sykes other than these two phone calls between the secretary and the process server. This simply fails to rise to the level of due diligence or good cause. See Holmes, 815 So.2d at 1186 (¶ 12). “We review a trial court's finding of fact on the existence of good cause for delay in service of process pursuant to our familiar abuse of discretion standard.” Spurgeon, 989 So.2d at 906 (¶ 19). “As such, the circuit court's determination of fact as to whether there was good cause for delay in service of process is a discretionary ruling entitled to deferential review on appeal.” Id. After careful consideration, we conclude that the circuit court did not abuse its discretion when finding that Sykes failed to prove good cause for her failure to serve Gambleton within the 120 days of filing her complaint.
¶ 20. Because Sykes failed to establish “good cause” for failing to timely serve Gambleton, the statute of limitations ran against Gambleton, and the action against Home Health is now likewise barred by operation of the law.
¶ 21. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
1. A hearing on the motion for summary judgment commenced, and as admitted by Sykes, Gambleton had not been served as of the date of the hearing.
2. We have consolidated Sykes's second and third issues in our discussion.
3. Home Health filed its motion for summary judgment on September 28, 2009. Sykes had not served Gambleton as of the time of the hearing on the motion for summary judgment.
4. See also Smith v. Taylor Propane, Inc., 2009 WL 1851001, at *2 (S.D.Miss.2009) (unreported) (finding that since the solely negligent employee was dismissed from the negligence claim by the decedent's estate, the estate could not recover against the employer based on vicarious liability).
5. “While the filing of a complaint tolls the statute of limitations, if service is not made upon the defendant within 120 days as required by [Rule] 4(h), the limitations period resumes running at the end of the 120 days.” Stutts v. Miller, 37 So.3d 1, 7 (¶ 17) (Miss.2010).
6. 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 initiative with notice to such party or upon motion.
7. “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 [that is] entitled to deferential review’ on appeal.” Holmes, 815 So.2d at 1185 (¶ 6) (citation omitted). “When reviewing fact-based findings, we will only examine ‘whether the trial court abused its discretion and whether there was substantial evidence supporting the determination.’ “ Id. (citation omitted).
8. See also Stutts, 37 So.3d at 3–7 (¶¶ 7–17) (affirming the trial court's dismissal of the complaint with prejudice due to the failure of the plaintiff to serve the defendants with process within 120 days, in compliance with Rule 4(h), and the expiration of the applicable statute of limitations).
CARLTON, J., for the Court:
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR.