                    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




                                              7
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.

                                              13
