William O'Brien Jenkins, Jr. v. Margaret B. Oswald ( 2007 )


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  •                     IN THE SUPREME COURT OF MISSISSIPPI
    
                                    NO. 2007-IA-01586-SCT
    
    WILLIAM O’BRIEN JENKINS, JR. a/k/a BUDDY
    JENKINS
    
    v.
    
    MARGARET B. OSWALD a/k/a ELAINE OSWALD
    
    DATE OF JUDGMENT:                         08/23/2007
    TRIAL JUDGE:                              HON. CYNTHIA L. BREWER
    COURT FROM WHICH APPEALED:                MADISON COUNTY CHANCERY COURT
    ATTORNEYS FOR APPELLANT:                  JAMES W. CRAIG
                                              DALE DANKS, JR.
    ATTORNEYS FOR APPELLEE:                   BETTY SLADE DEROSSETTE
                                              VANN FREDRIC LEONARD
    NATURE OF THE CASE:                       CIVIL - OTHER
    DISPOSITION:                              AFFIRMED AND REMANDED - 03/05/2009
    MOTION FOR REHEARING FILED:
    MANDATE ISSUED:
    
           EN BANC.
    
           RANDOLPH, JUSTICE, FOR THE COURT:
    
    ¶1.    This interlocutory appeal arises from the order of the Chancery Court of Madison
    
    County, Mississippi, which denied William O’Brien Jenkins, Jr.’s motion to dismiss for
    
    failure to comply with the 120-day service-of-process provision of Mississippi Rule of Civil
    
    Procedure 4(h). For the reasons discussed herein, this Court affirms.
                                    FACTS AND PROCEEDINGS
    
    ¶2.    On July 18, 2002, Margaret B. Oswald filed a complaint for preliminary injunctive
    
    and other relief in the chancery court against Jenkins, among others.1 On August 3, 2002,
    
    Oswald caused an alias summons to be issued for service upon Jenkins at a Florida address.
    
    No return of service of process was filed as to this alias summons, and no motion to extend
    
    the time for serving process was filed. On November 28, 2006, a second alias summons was
    
    issued for service upon Jenkins. On January 10, 2007, this alias summons was served on
    
    Jenkins in Rankin County.
    
    ¶3.    Thereafter, Jenkins moved under Mississippi Rule of Civil Procedure 12(b) to quash
    
    process and dismiss the complaint. Jenkins’s motion relied upon Mississippi Rule of Civil
    
    Procedure 4(h), which requires that process be served within 120 days of the filing of the
    
    complaint, absent good cause. The chancery court subsequently conducted a hearing on the
    
    motion, which included testimony from both parties.
    
    ¶4.    Oswald testified that, after filing her complaint in July 2002, she unsuccessfully
    
    attempted to serve a copy of the complaint, together with the original summons, at Jenkins’s
    
    Madison County address. Thereafter, Oswald filed an official inquiry with the United States
    
    Postal Service (“USPS”) and received notice that Jenkins had obtained a new mailing address
    
    in Bradenton, Florida. On August 3, 2002, Oswald caused an alias summons to be issued for
    
    service upon Jenkins at the Florida address. According to Oswald, who was employed as a
    
    legal assistant by her attorney in this matter, the law office paid a process server in Florida
    
    
    
    
           1
               Jenkins is the only party who petitioned this Court for an interlocutory appeal.
    
                                                    2
    to serve Jenkins at that address, but the process server was unable to locate him. Oswald
    
    produced no invoice or other documentation to corroborate this effort.
    
    ¶5.    Between 2003 and 2005, Oswald conducted monthly internet searches via “Google”
    
    in an attempt to locate another address for Jenkins. These searches proved unsuccessful.
    
    According to Oswald, she periodically received reports from Jenkins’s friends who had seen
    
    him locally. With the assistance of others, Oswald attempted to discover if Jenkins had re-
    
    obtained a Mississippi driver’s license with a new address. Each such check revealed that
    
    Jenkins had only a Florida driver’s license.
    
    ¶6.    In 2006, Oswald testified that she ran into Jenkins while purchasing barbecue in
    
    Rankin County. According to Oswald, she confronted Jenkins and told him that they needed
    
    to resolve the issues surrounding the subject litigation, and they exchanged cell phone
    
    numbers. Oswald claimed that the number she received from Jenkins was inactive. Shortly
    
    thereafter, Oswald saw Jenkins on a local television commercial promoting a new modular
    
    home company. Oswald immediately contacted the Mississippi Secretary of State’s Office
    
    and obtained a business address for Jenkins. She then caused a new alias summons to be
    
    issued on November 28, 2006. Jenkins was served on January 10, 2007.
    
    ¶7.    Jenkins testified that he moved to Bradenton, Florida, in May 2002 to care for an ill
    
    friend. He claimed that the address which Oswald obtained from the USPS for the first alias
    
    summons was his friend’s residence. According to Jenkins, he resided at that address until
    
    May or June 2003, then returned to Mississippi. In Mississippi, Jenkins lived with his
    
    brother for approximately one month before finding a home to lease. The lease agreement
    
    which Jenkins presented to the court showed a Brandon, Mississippi, address, with the term
    
    
                                                   3
    of lease commencing on July 1, 2003. Jenkins testified that he remained at that address for
    
    three years, before moving into a new house also located in Brandon.
    
    ¶8.    According to Jenkins, while in Mississippi he was employed by his brother’s real
    
    estate business, and this was generally known among his friends. In support thereof, he
    
    entered into evidence an undated article from the Rankin County newspaper concerning
    
    modular homes, which contained a photo-caption identifying Jenkins and his brother.
    
    Jenkins claimed that the article ran in May 2004.
    
    ¶9.    Jenkins disputed the alleged 2006 meeting with Oswald, testifying that the encounter
    
    occurred on July 4, 2003. According to Jenkins, he informed Oswald that he had moved
    
    back to Mississippi and gave her a business card with his contact information at his brother’s
    
    real estate company. Jenkins further testified that he used only a cell phone and did not have
    
    a listed phone number in his name.2
    
    ¶10.   At the conclusion of Jenkins’s testimony, the chancellor interrogated him as to when
    
    his Mississippi driver’s license was reinstated. Jenkins could not recall. When asked by the
    
    chancellor if he had maintained his Florida driver’s license for more than thirty days
    
    following his return to Mississippi, Jenkins responded affirmatively.3
    
    ¶11.   In her ruling, the chancellor expressed concern as to the lack of documented court
    
    authorization permitting such a long delay between the filing of the original complaint and
    
    
    
           2
             Jenkins’s wife, who corroborated his testimony regarding the meat-market encounter,
    testified that the land-line phone at the home Jenkins leased was listed in her name.
           3
             Mississippi Code Annotated Section 63-1-7(b) requires new residents with an out-of-
    state license to obtain a Mississippi driver’s license within sixty days of establishing
    permanent residency. See Miss. Code Ann. § 63-1-7(b) (Rev. 2004).
    
                                                  4
    service of process upon Jenkins. She deemed the absence of application for an extension of
    
    time to search for Jenkins to be problematic.4 However, the chancellor also found that:
    
           looking at a reasonable man’s burden, there is effort upon the part of [Oswald]
           that she attempted throughout the numerous years to seek some idea of a good
           address upon [Jenkins]. It appears from the testimony the Court finds credible
           that [Oswald] sought to have service of process upon [Jenkins] in the area of
           Florida during the early part of this 2002 lawsuit. It appears during the time
           period, based upon her credible testimony, that she googled and/or searched
           through some type of computerized searching to see about an address for
           [Jenkins].
    
           Based upon the testimony in rebuttal of [Jenkins], it appears that he did not
           have an address that would be easily ascertained through this googling and
           searching of the telephone books in the State of Mississippi and the tri-county
           area of Madison, Rankin and/or Hinds. The testimony of [Oswald] that she
           made efforts through family and friends through the years of 2004, 2005 and
           2006 before seeing a television ad o[n] WLBT . . . is reasonable.
    
    (Emphasis added). Based thereon, the chancellor determined that “[t]he testimony brought
    
    forth today is credible, in that [Oswald] was making some diligence, or at least reasonably
    
    diligent efforts. I would have preferred to have documentation in the Court file. However
    
    
    
    
           4
               Specifically, the chancellor stated:
    
           [m]y problem . . . is that there is nothing in the Court file authorizing this large
           amount of delay in the efforts of [Oswald] to seek and google and find these
           addresses and large times of delay notifying the Court and/or asking
           permission of the Court to allow the matter to remain open. The Rules
           authorize this Court, upon application, to give large amounts of time for the
           seeking and/or googling and/or looking for persons.
    
           It does not reflect here in the Court file where anyone made any application to
           my predecessor asking for continued privilege to look for and/or continue this
           lawsuit against the one remaining defendant, that is Mr. William O. Jenkins,
           Buddy Jenkins. That is a problem that is a paperwork problem.
    
                                                      5
    it is not a fatal flaw.” Ultimately, the chancellor denied Jenkins’s motion to quash service
    
    of process and to dismiss the case.
    
                                               ISSUE
    
    ¶12.   This Court will consider:
    
           Whether the chancellor abused her discretion in denying Jenkins’s motion to
           dismiss.
    
                                            ANALYSIS
    
    ¶13.   According to this Court:
    
           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 v. Coast Transit Auth., 
    815 So. 2d 1183
    , 1186 (Miss. 2002) (quoting 4B Charles
    
    Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1137, at 342 (3d ed. 2000))
    
    (emphasis added). Furthermore:
    
           [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. Rains v. Gardner, 
    731 So. 2d 1192
    , 1197-98
           (Miss. 1999). 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. at 1197.
    
    Holmes, 815 So. 2d at 1185 (emphasis added).
    
    ¶14.   In the case sub judice, Oswald issued process for Jenkins contemporaneously with the
    
    filing of her complaint on July 18, 2002. On August 3, 2002, Oswald’s initial alias summons
    
    for Jenkins was filed. Oswald’s testimony from the hearing recounts her subsequent
    
    
    
                                                  6
    laborious efforts to locate and serve process upon Jenkins. During this period, Oswald
    
    testified that:
    
           [t]here was no point in giving an alias summons without a valid address, and
           I could never obtain a valid address. There was nothing in the phone book.
           There was nothing under his name. I checked the Secretary of State site. He
           was not connected with any valid business as a CEO that . . . I could find at
           that point in time. I found nothing.
    
    After seeing Jenkins on television “promoting a new company that had to do with modular
    
    housing in reaction to Katrina[,]” however, Oswald testified that she “immediately contacted
    
    the Secretary of State . . . .” The second alias summons of November 28, 2006, was filed
    
    forthwith.
    
    ¶15.   In denying Jenkins’s “MRCP 12(b) Motion to Quash Process and Dismiss,” the
    
    chancellor provided a detailed explanation for her ruling. That learned analysis reflects a
    
    clear comprehension of the applicable law and the appropriate exercise of discretion in
    
    deeming the evidence presented by Oswald to be credible and substantial. See ¶ 11 supra.
    
    ¶16.   In deferentially reviewing the chancellor’s ruling, this Court finds neither an absence
    
    of substantial evidence in support thereof or any other abuse of discretion. While the dissent
    
    pays lip service to the principle that “weight and credibility assessments given to testimony
    
    as evidence are for the chancellor sitting as trier of fact[,]” see Dissenting Opinion at ¶ 30,
    
    its subsequent evidentiary analysis and contrary application of the principle lacks the
    
    
    
    
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    required deference.5 Accordingly, this Court affirms the chancellor’s discretionary denial
    
    of Jenkins’s “Rule 12(b) Motion to Quash Process and Dismiss.”
    
                                            CONCLUSION
    
    ¶17.   Based upon the aforementioned analysis, this Court affirms the Chancery Court of
    
    Madison County’s denial of Jenkins’s “Rule 12(b) Motion to Quash Process and Dismiss”
    
    and remands this case for further proceedings consistent with this opinion.
    
    ¶18.   AFFIRMED AND REMANDED.
    
         LAMAR, KITCHENS, AND PIERCE, JJ. CONCUR.         GRAVES, P.J.,
    CONCURS IN PART AND IN RESULT. PIERCE, J., SPECIALLY CONCURS WITH
    SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, LAMAR AND
    KITCHENS, JJ. CARLSON, P.J., DISSENTS WITH SEPARATE WRITTEN
    OPINION JOINED BY WALLER, C.J., DICKINSON AND CHANDLER, JJ.
    
           PIERCE, JUSTICE, SPECIALLY CONCURRING:
    
    ¶19.   I concur with the majority’s decision to affirm the chancellor’s decision to deny
    
    Jenkins’s Rule 12(b) Motion to Quash Process and Dismiss. I write separately, however, to
    
    explain my reasoning.
    
    ¶20.   The length of time which this matter has remained opened since its filing is
    
    disconcerting. Indeed, the primary purpose behind our procedural rules is “to secure the just,
    
    speedy, and inexpensive determination of every action.” See Miss. R. Civ. P. 1.
    
    
           5
               For instance, even the dissent concedes that “a motion for extension of time is not
    required . . . .” See Dissenting Opinion at ¶ 33. See also Montgomery v. SmithKline
    Beecham Corp., 
    910 So. 2d 541
    , 546 (Miss. 2005) (a plaintiff who files a motion for
    additional time for service of process before expiration of the service period is only “more
    likely [to] succeed in demonstrating diligence than a plaintiff who does nothing.”); Webster
    v. Webster, 
    834 So. 2d 26
    , 28-29 (Miss. 2002) (“if the drafters of our rules of civil procedure
    wished to require that motions for additional time in which to serve process be filed within
    the 120 days, they could have done so.”).
    
                                                    8
    ¶21.   Nonetheless, our procedural rules are to “be applied as liberally to civil actions as is
    
    judicially feasible.” Miss. R. Civ. P. 1 cmt. This Court has determined that a party’s failure
    
    to request an extension of time within 120 days of the filing of the suit does not require
    
    automatic dismissal. See Webster v. Webster, 
    834 So. 2d 26
    , 28-29 (Miss. 2002) (noting “if
    
    the drafters of our rules . . . wished to require that motions for additional time in which to
    
    serve process be filed within the 120 days, they could have done so”). Rather, if a party fails
    
    to serve process upon a defendant within 120 days after filing the complaint, and the party
    
    cannot show good cause why such service was not made with in that period, “the action shall
    
    be dismissed upon the court’s own initiative with notice to such party or upon motion.”
    
    Miss. R. Civ. P. 4(h).
    
    ¶22.   The record does not disclose that any such notice was ever served upon Oswald, only
    
    that a Rule 12(b) motion was filed by Jenkins. Therefore, the matter remained open pending
    
    a hearing to determine whether or not Oswald could show good cause as to why process had
    
    not been served within the prescribed period of time. The chancellor, in her “wise and sound
    
    discretion,” found that Oswald had demonstrated a good-cause reason for not effecting
    
    process. See Miss. R. Civ. P. 1 cmt.
    
    ¶23.   It cannot be overstated that our trial courts are entitled to “deferential review” in
    
    matters that require a discretionary ruling. Rains v. Gardner, 
    731 So. 2d 1192
    , 1197-98
    
    (Miss. 1999). It is clear from the record that the learned chancellor thoroughly considered
    
    this matter and then denied the Motion to Quash the Service of Process.
    
    ¶24.   I therefore yield to that finding.
    
           RANDOLPH, LAMAR AND KITCHENS, JJ., JOIN THIS OPINION.
    
                                                  9
           CARLSON, PRESIDING JUSTICE, DISSENTING:
    
    ¶25.   Because the majority affirms the learned chancellor’s denial of Jenkins’s “Rule 12(b)
    
    Motion to Quash Process and Dismiss,” I respectfully dissent.
    
    ¶26.   Jenkins asserts that the chancellor erred as a matter of law in denying his motion to
    
    dismiss Oswald’s complaint for failing to comply with the 120-day deadline imposed by
    
    Mississippi Rule of Civil Procedure 4(h). He asserts that the chancellor’s finding of “good
    
    cause” and “diligence” is not supported by substantial evidence. I agree with Jenkins.
    
    ¶27.   Denial of a motion to dismiss a complaint for failure to serve process within 120 days
    
    of its filing presents a question of law, which this Court reviews de novo. Bacou-Dalloz
    
    Safety, Inc. v. Hall, 
    938 So. 2d 820
    , 822 (Miss. 2006) (citation omitted). Without question,
    
    a trial court’s factual determination as to whether good cause exists is a discretionary ruling,
    
    entitled to deferential review of whether the trial court abused its discretion and whether
    
    there was substantial evidence supporting the determination. LeBlanc v. Allstate Ins. Co.,
    
    
    809 So. 2d 674
    , 676 (Miss. 2002) (citing Raines v. Gardner, 
    731 So. 2d 1192
    , 1198 (Miss.
    
    1999) (citations omitted)). “The plaintiff bears the burden of establishing good cause.”
    
    Holmes v. Coast Transit Authority, 
    815 So. 2d 1183
    , 1185 (Miss. 2002).
    
    ¶28.   Rule 4(h) of the Mississippi Rules of Civil Procedure 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.
    
    Miss. R. Civ. P. 4(h).
    
    
    
                                                  10
    ¶29.    There is no bright-line test for determining whether a plaintiff has met the burden of
    
    establishing “good cause” for failure to comply with the 120-day deadline. As a standard,
    
    though, “good cause” has been deemed by this Court to be a strict one. Crumpton v.
    
    Hegwood, 
    740 So. 2d 292
    , 294 (Miss. 1999) (citations omitted). Likewise, for purposes of
    
    Rule 4(h), the standard demands a showing of diligent effort on the part of plaintiffs. Foss
    
    v. Williams, 
    993 So. 2d 378
    , 379 (Miss. 2008) (citing Montgomery v. SmithKline Beecham
    
    Corp., 
    910 So. 2d 541
    , 546 (Miss. 2005)).
    
    ¶30.    The chancellor concluded that Oswald had established good cause by a showing of
    
    reasonable diligence in her attempts to locate and serve Jenkins, who was found not to have
    
    had an easily ascertainable address. Her ruling rested on a factual determination, based
    
    primarily on a credibility finding, established through the parties’ respective testimony.
    
    Undoubtedly, weight and credibility assessments given to testimony as evidence are for the
    
    chancellor sitting as trier of fact. Lorenz v. Strait, 
    987 So. 2d 427
    , 430 (Miss. 2008) (citation
    
    omitted). However, while this Court on appeal should afford appropriate deference to a
    
    chancellor’s discretionary fact-finding, such discretion, in my opinion, is not unfettered.
    
    Oswald’s reason for failing to meet the 120-day time limit set forth by Rule 4(h) was her
    
    inability to locate and serve Jenkins with the alias summons issued in 2002, thereby alluding
    
    that Jenkins was evading service of process. Although this type of conduct on the part of a
    
    defendant may constitute a good-cause basis for a plaintiff’s failure to meet the 120-day
    
    deadline, the burden rests with the plaintiff to demonstrate as much. Holmes, 815 So. 2d at
    
    1185.
    
    
    
    
                                                   11
    ¶31.   Apart from her testimony, the only additional evidence furnished by Oswald in
    
    support of her “good cause” was the 352-44a form from USPS exhibited to show Jenkins had
    
    changed his Madison mailing address to an address in Florida. Oswald claimed that she, or
    
    someone from the law office where she worked, hired a Florida process server to personally
    
    serve Jenkins at that address. Yet, without reasonable explanation, Oswald failed to produce
    
    any kind of documentation to corroborate that effort.
    
    ¶32.   Further, notification by Jenkins to the post office that he was changing his address,
    
    without more, does not advance an inference to a fair conclusion that he was evading service
    
    of process; especially, when viewed under the scope of Rule 4. See Miss. R. Civ. P. 4.
    
    Personal service, under Rule 4(c)(1), was but one option Oswald had available to her under
    
    the rule. Upon obtaining proof-in-hand that Jenkins had taken residence in Florida, pursuant
    
    to Rule 4(c)(5), Oswald also could have attempted service by certified mail. An “unclaimed”
    
    envelope, properly marked “restricted delivery,” produced alongside the 352-44a form,
    
    would have at least supported an inference that Jenkins was attempting to avoid process. The
    
    record simply does not support a conclusion that Jenkins was actively avoiding service of
    
    process.
    
    ¶33.   I also find it troubling that at no time did Oswald file a motion for extension of time
    
    to serve process on Jenkins. “Such diligence would support an allegation that good cause
    
    exists for failure to serve process timely.” Webster v. Webster, 
    834 So. 2d 26
    , 29 (Miss.
    
    2002). Instead, Oswald chose simply to overlook or possibly ignore the guidance of the
    
    Mississippi Rules of Civil Procedure and this Court. As this Court has stated, “[E]xcusable
    
    neglect is a ‘very strict standard’ and the plaintiff should have filed a motion for additional
    
    
                                                  12
    time within 120 days of filing the complaint.” Id. (quoting Moore v. Boyd, 
    799 So. 2d 133
    
    (Miss. Ct. App. 2001)). In my opinion, we should again reiterate to our trial bench and bar
    
    that, although a motion for extension of time is not required, it is definitely preferred.
    
    ¶34.   Also, much is made in Oswald’s brief regarding the fact that Jenkins failed to timely
    
    renew his driver’s license upon returning to Mississippi. The record is inconclusive as to
    
    when Jenkins reobtained a Mississippi driver’s license.        Jenkins very well may have
    
    purposely delayed doing so in order to impede Oswald’s efforts; or, although he admitted to
    
    not obtaining a Mississippi driver’s license within thirty days, he may actually have met the
    
    sixty-day requirement set forth by Mississippi Code Annotated Section 63-1-7(b); or, he may
    
    simply have been derelict in failing to comply with this statute. Personally, I am left to
    
    nothing but speculation on this point, but in the end, to me it is of no moment. The due
    
    diligence contemplated by Rule 4(h) lies solely with the plaintiff. Moreover, as with the
    
    USPS 352-44a form, Oswald could have used the fact that Jenkins had a Florida driver’s
    
    license to attempt service of process by the additional options provided to her under Rule 4.
    
    ¶35.   I likewise see no reason to address all the events which occurred throughout the
    
    1,638-day period between the filing of the complaint and the eventual service upon Jenkins,
    
    because, in my opinion, Oswald failed to show that she proceeded with reasonable diligence
    
    during the first 120 days. Thus, I conclude that Oswald failed in her burden to establish good
    
    cause for not serving process within the 120-day deadline set forth by Rule 4(h).
    
    ¶36.   With this being said, I find that the chancellor erred as a matter of law in denying
    
    Jenkins’s motion to dismiss. Because the majority finds otherwise, I dissent.
    
           WALLER, C.J., DICKINSON AND CHANDLER, JJ., JOIN THIS OPINION.
    
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