Perry v. Andy

858 So. 2d 143, 2003 WL 22455725
CourtMississippi Supreme Court
DecidedOctober 30, 2003
Docket2002-CA-01436-SCT
StatusPublished
Cited by28 cases

This text of 858 So. 2d 143 (Perry v. Andy) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perry v. Andy, 858 So. 2d 143, 2003 WL 22455725 (Mich. 2003).

Opinion

858 So.2d 143 (2003)

Jimmy PERRY and Twylia Perry, as Parents of Brandi Ivy Perry, A Minor
v.
Orlando J. ANDY, M.D. and Hattiesburg Clinic, P.A.

No. 2002-CA-01436-SCT.

Supreme Court of Mississippi.

October 30, 2003.

*144 Thomas Michael Reed, attorney for appellants.

Amanda Clearman Waddell, J. Robert Ramsay, Hattiesburg, attorneys for appellees.

EN BANC.

CARLSON, Justice, for the Court.

¶ 1. Aggrieved by the circuit court's judgment dismissing their lawsuit pursuant to Miss. R. Civ. P. 4(h) and 12(b)(5) & (6), Jimmy and Twylia Perry have appealed to this Court on the issue of whether they had good cause, as pro se plaintiffs, for not properly serving Orlando J. Andy, M.D., and the Hattiesburg Clinic, P.A., within the 120 days prescribed by Miss. R. Civ. P. 4(h). Finding that the circuit court was correct in granting the motion to dismiss filed by Dr. Andy and the Hattiesburg Clinic, we affirm the judgment of the Circuit Court of Forrest County.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On February 13, 2000, Brandi Ivy Perry, a nineteen-year-old girl suffering from severe abdominal pain, underwent an emergency appendectomy performed by Dr. Orlando J. Andy of the Hattiesburg Clinic, P.A., at Forrest General Hospital in Hattiesburg, Forrest County, Mississippi. Following a two-day recovery period, Brandi was released, and she and her family drove to Atlanta, Georgia. Three days later, while in Atlanta, Brandi's acute abdominal pain returned. Sometime after midnight on February 19, 2000, she was rushed by ambulance to Emory University Hospital for emergency surgery.

¶ 3. During her surgery at Emory, Dr. John Hunter discovered that evidently as a result of her earlier appendectomy, Brandi had sustained a near fatal "nicked abdomen wall and ovary." Brandi's parents, Jimmy and Twylia Perry, incurred expenses in excess of $24,500 for the second surgery. Additionally, the second surgery left a 10-inch scar across Brandi's lower abdomen. Brandi missed five weeks of college course work, forcing her to withdraw from the University of Southern Mississippi for the remainder of the semester.

¶ 4. On February 12, 2002, Jimmy and Twylia filed this pro se lawsuit against Dr. Andy and the Hattiesburg Clinic in the Circuit Court of Forrest County, alleging medical negligence arising from the emergency appendectomy performed by Dr. Andy on February 13, 2000. On February 19 or 20, 2002, Mr. Perry hand delivered a *145 copy of the complaint to Dr. Andy at his place of business.

¶ 5. Process was finally issued on June 17, 2002, and Dr. Andy and the Hattiesburg Clinic were personally served with process on June 19, 2002, seven days after the 120-day deadline for service of process had expired.

¶ 6. Dr. Andy and the Hattiesburg Clinic filed a motion to dismiss pursuant to Miss. R. Civ. P. 4(h) and 12(b)(5) & (6), alleging failure to effect service of process within 120 days. The trial court heard the motion to dismiss. Mr. Perry explained during the circuit court hearing:

MR. PERRY: Your Honor, I would like to enter this letter. Like you say, ignorance is no excuse for the law. I personally handed Dr. Andy what I thought was a suit February 19 or 20, which I filed February 12, 2002. This is the earliest I could get an appointment with Dr. Andy.
* * * * * *
BY THE COURT: Did you even consider having process served?
MR. PERRY: I didn't know anything about that, Your Honor.

¶ 7. The trial court was sympathetic to the Perrys' self-representation, but, nevertheless, found, "The rules are the rules are the rules and we all have to abide by that." Accordingly, the trial court entered an order of dismissal, and the Perrys appeal.

DISCUSSION

¶ 8. The Perrys argue that they had good cause for not properly serving process on the defendants within the 120 days prescribed by Miss. R. Civ. P. 4(h). Given their pro se status in the circuit court and the fact that Mr. Perry handed a copy of the complaint to Dr. Andy prior to the expiration of the 120 days, the Perrys contend the trial court erred in dismissing their lawsuit against Dr. Andy and the Hattiesburg Clinic.

¶ 9. The Perrys correctly state that the standard of review for a trial court's finding of fact on the existence of good cause for delay in service of process is abuse of discretion. Holmes v. Coast Transit Auth., 815 So.2d 1183, 1185(¶ 6) (Miss.2002) (citing Rains v. Gardner, 731 So.2d 1192, 1197-98 (Miss.1999)). A trial court's determination of fact as to whether good cause exists for delay in service of process is a discretionary ruling entitled to deferential review on appeal. Id.

¶ 10. Mississippi Rule of Civil Procedure 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.

¶ 11. The Perrys argue that Mr. Perry fulfilled the essence of Miss. R. Civ. P. 4(h) by serving a copy of the complaint to Dr. Andy on February 19 or 20, 2002, even though no summons accompanied the complaint. The Perrys argue, and we agree, that Dr. Andy received actual notice of the lawsuit when Mr. Perry handed him a copy of the complaint. There is an obvious distinction between a total want of service of process and a defective service of process. Harrington v. Wofford, 46 Miss. 31, 41 (1871). When process is completely lacking, "the defendant has no notice at all of the suit." Id. However, "defective service of process gives the defendant actual notice of the suit or proceeding against him." Id.; see also *146 Pinkston ex rel. Pinkston v. Miss. Dep't of Transp., 757 So.2d 1071, 1073(¶ 7) (Miss.Ct.App.2000) (finding attorney had actual notice of a court order when she received a letter from the county clerk indicating the order had been entered). Thus, when Mr. Perry handed Dr. Andy a copy of the complaint actual notice was established.

¶ 12. The Perrys further contend they acted in good faith and should not be effectively barred from their day in court when they acted diligently to effect process while proceeding pro se. In Holmes this Court stated:

[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.

815 So.2d at 1186 (¶ 12) (quoting 4B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1137, at 342 (3d ed.2000)) (emphasis added). The Perrys argue this language in Holmes provides jurisprudential room for this Court to afford pro se plaintiffs greater latitude in complying with service of process requirements.

¶ 13. In response, Dr. Andy and the Hattiesburg Clinic cite LeBlanc v. Allstate Ins. Co., 809 So.2d 674 (Miss.2002) and Moore ex rel. Moore v. Boyd,

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Cite This Page — Counsel Stack

Bluebook (online)
858 So. 2d 143, 2003 WL 22455725, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perry-v-andy-miss-2003.