           IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2015-CP-00911-COA

SHAWN RICHARD O’HARA                                                      APPELLANT

v.

CITY OF HATTIESBURG, MISSISSIPPI                                            APPELLEE

DATE OF JUDGMENT:                         02/027/2015
TRIAL JUDGE:                              HON. ROGER B. HELFRICH
COURT FROM WHICH APPEALED:                FORREST COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   SHAWN RICHARD O’HARA (PRO SE)
ATTORNEYS FOR APPELLEE:                   R. LANE DOSSETT
                                          L. CLARK HICKS JR.
NATURE OF THE CASE:                       CIVIL - PERSONAL INJURY
TRIAL COURT DISPOSITION:                  GRANTED APPELLEE’S MOTION TO
                                          DISMISS
DISPOSITION:                              AFFIRMED - 03/21/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., BARNES AND WILSON, JJ.

       WILSON, J., FOR THE COURT:

¶1.    On February 7, 2014, Shawn O’Hara was walking across South 28th Avenue in

Hattiesburg when the street suddenly caved in and his left leg went under the street to his

knee. O’Hara managed to avoid oncoming traffic and crawl out of the road, and an

ambulance transported him to the emergency room.1 Almost a year later, O’Hara filed suit

against the City of Hattiesburg in the Forrest County Circuit Court. He alleges that he is



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         For purposes of this appeal from an order dismissing O’Hara’s complaint, we accept
the complaint’s well-pled factual allegations as true. See, e.g., Penn Nat’l Gaming Inc. v.
Ratliff, 954 So. 2d 427, 430-31 (¶6) (Miss. 2007).
entitled to recover $300,000 in actual damages, including past and future medical expenses,

pain and suffering damages, and $280,000 in lost earnings on his third motion picture, Dixie

Lady, the film’s production apparently having been derailed by his injuries. O’Hara also

demands $24,700,000 in punitive damages.

¶2.    The circuit court dismissed O’Hara’s complaint without prejudice for insufficient

service of process and failure to provide proper pre-suit notice under the Mississippi Tort

Claims Act (MTCA).          The court also denied O’Hara’s subsequent motion for

reconsideration. For the reasons that follow, we affirm the dismissal of the action.

Additional facts are discussed as necessary in the course of our analysis.

                                      DISCUSSION

       I.     Insufficient Service of Process

¶3.    Mississippi Rule of Civil Procedure 4(d)(7) provides that service of process on a

municipal corporation shall be “by delivering a copy of the summons and complaint to the

mayor or municipal clerk.” O’Hara initially served the city attorney’s wife and later served

the city attorney. Neither attempt at service satisfied Rule 4(d)(7).

¶4.    However, the circuit court dismissed the complaint for insufficient service of process

on March 2, 2015, only a little over three weeks after the complaint was filed. Rule 4(h)

provides that a plaintiff has 120 days in which to serve the defendant. “[U]ntil that 120-day

period has expired, any attempt to seek dismissal on the grounds of defective service clearly

would be premature.” McGinnis v. Shalala, 2 F.3d 548, 551 (5th Cir. 1993) (applying then-



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Federal Rule of Civil Procedure 4(j), subsequently relettered as Rule 4(m)); accord State

Farm Fire & Cas. Co. v. Smith, 39 So. 3d 1172, 1174 (Ala. Civ. App. 2009) (applying

Alabama Rule of Civil Procedure 4(b) and holding that a trial court cannot dismiss a

complaint for insufficient service within the 120-day period permitted for service).

¶5.    The record indicates that O’Hara served both the mayor and the “acting city clerk” on

April 30, 2015, only eighty-three days after he filed suit. O’Hara thereby satisfied the

requirements of Rule 4. Although he effected service after the circuit court’s order

dismissing the case, his motion for reconsideration was pending, and he was still well within

the 120-day period allowed by Rule 4. The prior order dismissing the case was premature

to the extent it was based on insufficient service of process. Therefore, we must determine

whether dismissal was proper because O’Hara failed to provide proper pre-suit notice under

the MTCA.

       II.     Insufficient Pre-Suit Notice

¶6.    Under the MTCA, prior to filing suit against a municipality, a claimant must serve a

notice of claim on the city clerk. Miss. Code Ann. § 11-46-11(1)-(2) (Rev. 2012). The

notice must:

       (i) Be in writing;

       (ii) Be delivered in person or by registered or certified United States mail; and

       (iii) Contain a short and plain statement of the facts upon which the claim is
       based, including the circumstances which brought about the injury, the extent
       of the injury, the time and place the injury occurred, the names of all persons
       known to be involved, the amount of money damages sought, and the

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       residence of the person making the claim at the time of the injury and at the
       time of filing the notice.

Id. § 11-46-11(2)(b). Mississippi law “requires substantial compliance with the notice

requirements of Section 11-46-11(2).” Lee v. Mem’l Hosp. at Gulfport, 999 So. 2d 1263,

1266 (¶9) (Miss. 2008).

¶7.    “Pursuant to [section] 11-46-11(2), there are seven required categories of information

which must be included”:

       (1) the circumstances which brought about the injury;

       (2) the extent of the injury;

       (3) the time and place the injury occurred;

       (4) the names of all persons known to be involved;

       (5) the amount of money damages sought;

       (6) the residence of the person making the claim at the time of the injury; and

       (7) the claimant’s residence at the time of filing the notice.

S. Cent. Reg’l Med. Ctr. v. Guffy, 930 So. 2d 1252, 1257 (¶18) (Miss. 2006); accord Saul ex

rel. Heirs of Cook v. S. Cent. Reg’l Med. Ctr. Inc., 25 So. 3d 1037, 1041 (¶12) (Miss. 2010).

¶8.    “The purpose of the [pre-suit notice requirement] is to insure that governmental

[entities] . . . are informed of claims against them.” Reaves ex rel. Rouse v. Randall, 729 So.

2d 1237, 1240 (¶9) (Miss. 1998). “[T]he determination of substantial compliance is a legal,

though fact-sensitive, question and is, therefore, necessarily decided on an ad hoc basis.”

Marbly v. Manuel, 2014-CA-01171-COA, 2015 WL 4741861, at *2 (¶7) (Miss. Ct. App.

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Aug. 11, 2015) (quoting Webster v. City of D’Iberville City Council, 6 So. 3d 448, 451 (¶8)

(Miss. Ct. App. 2009)).

¶9.    At the hearing in the circuit court on the City’s motion to dismiss, counsel for the City

informed the court that after the motion was filed, he received a handwritten note that O’Hara

had submitted to the City at some point prior to filing suit. Counsel argued that the notice

did not substantially comply with section 11-46-11. The circuit judge asked to see the notice,

and it was handed to him, but it was never entered into evidence or otherwise included in the

record. In response, O’Hara asserted that he provided the City with a typed notice of claim

in February 2014; however, he never produced a copy of any such document in the circuit

court. O’Hara also claimed that he had talked to the City’s human resources director and its

insurance company about his claim and provided his medical bills to them.

¶10.   In its order dismissing the case, the circuit court stated that it had reviewed the

handwritten notice and that it was “insufficient pursuant to [section] 11-46-11 because it

fail[ed] to contain several of the seven required categories of information, and [was]

therefore not in substantial compliance with [the] statute.” The court specifically stated that

the notice “fail[ed] to include the extent of the injury, names of all persons involved, and the

residence of the Plaintiff both at the time of the injury and at the time of the filing of the

notice.” For this reason, the circuit court concluded that the case should be dismissed for

failure to comply with section 11-46-11.

¶11.   O’Hara subsequently filed a motion for reconsideration and later filed additional



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untimely motions, but he never attempted to include a copy of any notice of claim in the

record. Thus, the record does not include a copy of O’Hara’s handwritten notice of claim or

any other alleged notice of claim.

¶12.   “It is an appellant’s duty to justify his arguments of error with a proper record or the

trial court will be considered correct. The record on appeal must show such portions of the

record of the trial court as are necessary for a consideration of the questions presented.”

Pennington v. Dillard Supply Inc., 858 So. 2d 902, 903 (¶5) (Miss. Ct. App. 2003) (internal

citation omitted). Here, the trial court reviewed O’Hara’s handwritten notice of claim and

found that it was insufficient to satisfy section 11-46-11. O’Hara challenges that finding on

appeal, but we are unable to consider his argument because he failed to see that the record

included a copy of the notice for this Court to review. Accordingly, the circuit court’s ruling

that O’Hara failed to substantially comply with the MTCA’s pre-suit notice requirement “will

be considered correct.” Pennington, 858 So. 2d at 903 (¶5). If a plaintiff in an MTCA case

fails to provide proper notice prior to filing suit, the complaint should be dismissed without

prejudice. See Tallahatchie Gen. Hosp. v. Howe, 154 So. 3d 29, 32 (¶¶11-13) (Miss. 2015).

Therefore, we affirm.

¶13. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,
GREENLEE AND WESTBROOKS, JJ., CONCUR.               FAIR, J., NOT
PARTICIPATING.



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