                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2015-IA-01829-SCT

GRACELAND CARE CENTER OF NEW ALBANY,
LLC, ADVANCED HEALTHCARE
MANAGEMENT, INC., KAREN CLAYTON, IN
HER OFFICIAL CAPACITY AS
ADMINISTRATOR OF GRACELAND CARE
CENTER OF NEW ALBANY, W. LARRY
OVERSTREET AND SHARON WINDHAM

v.

TERESA HAMLET, ON BEHALF OF JIMMY
KINARD, DECEASED

                           ON MOTION FOR REHEARING

DATE OF JUDGMENT:                        11/17/2015
TRIAL JUDGE:                             HON. JOHN KELLY LUTHER
TRIAL COURT ATTORNEYS:                   T. K. MOFFETT
                                         ANDY LOWRY
                                         THOMAS L. KIRKLAND, JR.
COURT FROM WHICH APPEALED:               UNION COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                ANDY LOWRY
                                         THOMAS L. KIRKLAND, JR.
ATTORNEYS FOR APPELLEE:                  RICHARD SHANE McLAUGHLIN
                                         NICOLE H. McLAUGHLIN
NATURE OF THE CASE:                      CIVIL - MEDICAL MALPRACTICE
DISPOSITION:                             AFFIRMED AND REMANDED - 11/02/2017
MOTION FOR REHEARING FILED:              08/25/2017
MANDATE ISSUED:


       EN BANC.

       KING, JUSTICE, FOR THE COURT:

¶1.    The motion for rehearing is denied. The original opinions are withdrawn, and these

opinions are substituted therefor.
¶2.    Teresa Hamlet filed a motion for an extension of time to serve process, prior to the

expiration of the 120-day deadline provided by Mississippi Rule of Civil Procedure 4(h). The

trial judge granted the motion and signed an order, yet the order was not filed with the circuit

clerk until the day before the granted extension expired, well after the expiration of the

original, 120-day deadline. Hamlet served process on three defendants during the extension.

On the same day the order was filed, Hamlet filed a second motion for time, which the trial

court also granted. While Hamlet served process on the remaining defendants within the

second extension period, the order granting the second extension was not filed with the clerk

until three months after it was signed by the judge.

¶3.    The defendants filed a motion to dismiss Hamlet’s complaint, arguing that the statute

of limitations had run before the court’s order granting additional time to serve process had

been entered by the clerk of court. The defendants further argued that Hamlet’s suit could not

be revived by the untimely filed order. The trial court denied the defendants’ motion to

dismiss. Because Hamlet was the only party to the action, we find that the trial judge’s order

granting her motion for extension of time to serve process became effective once the order

had been signed and had left the trial judge’s control. Accordingly, we affirm the decision

of the trial court. However, in cases where more than one party is involved, notice becomes

essential. Therefore, in cases involving multiple parties, we adopt the holding of the majority

of states that require the entry of an interlocutory order before it becomes effective.

             STATEMENT OF FACTS AND PROCEDURAL HISTORY


                                               2
¶4.    Jimmy Kinard died on September 23, 2012.1 On October 17, 2014, Teresa Hamlet,

Kinard’s sister, filed suit against Graceland Care Center of New Albany, LLC; Advanced

Healthcare Management, Inc.; Karen Clayton, in her official capacity as administrator of

Graceland Care Center of New Albany; W. Larry Overstreet; Sharon Windham; and John

Does 1-10, jointly and individually (collectively referred to as “Graceland”). Hamlet alleged

that Graceland’s negligence was the proximate cause of Kinard’s death.

¶5.    The 120-day deadline to serve process as provided under Rule 4(h) of the Mississippi

Rules of Civil Procedure would have expired on February 14, 2015. On February 13, 2015,

Hamlet filed a Motion to Extend Time to Serve Process.

¶6.    On February 23, 2015, the trial judge signed an order granting Hamlet sixty days from

February 14, 2015, to serve process on the defendants. However, the order was not entered

by the clerk of the court until April 14, 2015, one day prior to the expiration of the sixty-day

extension.

¶7.    Hamlet served three defendants on April 14, 2015. On that same day, Hamlet filed a

Second Motion to Extend Time to Serve Process, arguing that, while her deadline to serve

defendants “will run on or about April 15, 2015,” process to defendants remained

incomplete. On April 16, 2015, the trial judge signed the order granting Hamlet’s second

motion for extension of time to serve process, allowing Hamlet an additional sixty days from



       1
       Because the issues before this Court are purely procedural in nature, it is not
necessary to delve into the facts surrounding Kinard’s death.

                                               3
April 15, 2015, to serve process on the defendants. The circuit court clerk did not enter this

order until July 14, 2015.

¶8.    The following timeline illustrates the pertinent dates:

      Sept. 23, 2012     Jimmy Kinard passed away (statute of limitations begins to
                         run).
       July 25, 2014     Notice of claim sent to Graceland, tolling statute of
                         limitations for sixty days per Miss. Code Ann. § 15-1-36.
      Sept. 23, 2014     Earliest date Hamlet could file suit under Section 15-1-36.
       Oct. 17, 2014     Complaint filed.

                         120-day period to serve process begins, expiring February
                         14, 2015.
       Feb. 13, 2015     Hamlet files motion for additional sixty days to serve
                         process within the 120-day period.
       Feb. 23, 2015     Court grants Hamlet’s motion for an additional sixty days
                         to serve process from February 14 until April 15 (“first
                         extension order”).
      Mar. 22, 2015      Graceland argues that the statute of limitations expires.
      Apr. 14, 2015      Clerk enters first extension order.

                         Hamlet perfects service on Karen Clayton, Graceland Care
                         Center, and W. Larry Overstreet.

                         Hamlet files second motion for time.
       Apr. 15, 2015     Sixty-day period under the first extension order expires.
       Apr. 16, 2015     Court grants Hamlet’s second motion for an additional
                         sixty days to serve process from April 15 until June 15
                         (“second extension order”).

                         Hamlet perfects service on Advanced Healthcare
                         Management, Inc.


                                              4
       May 15, 2015         Graceland files motion to dismiss.
       July 14, 2015        Clerk enters second extension order.

¶9.    Graceland filed a Motion to Dismiss, contending that the statute of limitations had run

before the April 14, 2015, order extending time was entered. Graceland argued that Hamlet

failed to serve timely process within 120 days after filing her complaint, and therefore, the

statute of limitations resumed after the 120 days. Initially, Graceland argued that Hamlet had

failed to show “good cause” in her motion for extension, which would have satisfied

Mississippi Rule of Civil Procedure 4(h).2 Graceland, however, acknowledged that Hamlet

likely would contend that, where a motion for time is filed prior to the expiration of the 120

days, the standard of Mississippi Rule of Civil Procedure 6(b) applies. See Cross Creek

Prods. v. Scafidi, 911 So. 2d 958 (Miss. 2005).3


       2
        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.

M.R.C.P. 4(h).
       3
        Rule 6(b) provides that:

       [W]hen . . . an act is required or allowed to be done at . . . a specified time, the
       court for cause shown may at any time in its discretion (1) with or without
       motion or notice order the period enlarged if request therefore is made before
       the expiration of the period originally prescribed or as extended by a previous

                                                5
¶10.   Graceland’s argument against applying Rule 6(b) was twofold. First, Graceland

argued that Scafidi did not involve the statute-of-limitations tolling rule. Second, Graceland

argued that Hamlet’s failure to secure an order before the 120-day deadline expired made a

showing of good cause necessary. Graceland noted that the Scafidi Court did not reveal when

the trial court entered its order granting an extension of time to serve process. Because the

120-day deadline had expired without Hamlet securing a signed and filed order extending the

time to serve process, it averred that there should be a requirement that Hamlet show good

cause after the 120-day deadline expired.

¶11.   In response, Hamlet argued that the Scafidi Court specifically held that motions for

time filed during the 120-day deadline do not require a showing of good cause. Id. at 960

(“[T]his finding is specifically limited to those situations where the motion for additional

time is filed before the deadline.”) (emphasis added). Because she filed her motion for an

extension of time to serve process within the 120-day deadline, Hamlet argued that a showing

of good cause was not necessary.

¶12.   The trial court held a hearing on the motion, at which Graceland argued that an order

does not become effective until it is filed with the clerk and all parties are put on notice.

Graceland admitted this was a case of first impression but likened an interlocutory order to



       order, or (2) upon motion made after the expiration of the specified period
       permit the act to be done where failure to act was the result of excusable
       neglect . . . .

M.R.C.P. 6(b).

                                              6
a judgment not being effective until it is filed. Graceland argued that, while a statute of

limitations could be extended by a court, it could not be resurrected. Graceland also

contended that the mere filing of a motion for time did not toll the statute of limitations.

Moments before the trial court’s ruling, Graceland’s counsel stated that “prejudice might be

relevant to the issue [if] we are [sic] showing good cause[,] but we conceded that it’s not.

This is an issue of statute of limitations, Your Honor.” Because the statute of limitations had

run prior to the April 14, 2014, order being filed with the clerk, Graceland prayed that the

court would dismiss the action.

¶13.   Hamlet’s attorney acknowledged that the signed order from the judge “may have spent

longer in my office than it should have. . . .” However, Hamlet argued that the law did not

require a party to secure and file an order within the initial 120-day period in order to receive

an extension. Hamlet stated that Graceland Care Center was served on April 14, 2015, the

same day the order granting the extension was filed and within the extension allowed by the

order. Also, Hamlet argued that no caselaw supported Graceland’s assertion that the order

was not effective until it was entered by the court.

¶14.   After considering oral argument and documentary evidence, the trial court confirmed

with the parties that “[t]he question of reasonableness, good cause shown is not an issue. .

. .” Neither party objected. The trial court next recognized that no caselaw on point would

direct him to dismiss this case and that dismissals were not favored. As such, the trial court

denied the motion.


                                               7
¶15.   Graceland timely filed this interlocutory appeal. On appeal, Graceland raises three

issues. First, Graceland argues that an order is effective only upon filing with the clerk.

Second, Graceland claims that a motion filed within the 120-day period under Rule 4(h) is

insufficient to resurrect the statute of limitations where the order granting the motion is filed

after the statute of limitations runs. Third, Graceland argues that this Court should reconsider

and overrule Scafidi.

¶16.   Hamlet raises two issues. First, Hamlet argues that an order extending time to serve

process is effective upon the judge’s signing. Second, Hamlet argues that this Court should

not overrule Scafidi. For clarity, we will restate and combine the issues on appeal.

                                STANDARD OF REVIEW

¶17.   “This Court uses a de novo standard of review when passing on questions of law

including statute of limitations issues.” Stephens v. Equitable Life Assurance Soc’y, 850 So.

2d 78, 82 (Miss. 2003).

                                         ANALYSIS

¶18.   In this case of first impression, we are tasked with determining when an order

becomes effective and ultimately grants the enlargement of time under Rules 4(h) and 6(b).

Is it when it is announced and/or signed by the judge? Or is it when it is officially entered

into the record by the court clerk?




                                               8
¶19.   Graceland argued that, in general, an order does not become effective until filed with

the clerk and all parties are put on notice. The time for service of process in Mississippi is

governed by Rule 4(h), which reads:

       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.

M.R.C.P. 4(h) (emphasis added). Our courts, however, read Rule 4(h) in conjunction with

Rule 6(b), which requires only “cause shown” for an enlargement of time when the motion

is filed before the expiration of the 120-day period. Scafidi, 911 So. 2d at 960; M.R.C.P.

6(b). Rule 6(b) reads:

       When by these rules or by notice given thereunder or by order of court an act
       is required or allowed to be done at or within a specified time, the court for
       cause shown may at any time in its discretion (1) with or without motion or
       notice order the period enlarged if request therefore is made before the
       expiration of the period originally prescribed or as extended by a previous
       order . . . .

M.R.C.P. 6(b) (emphasis added).

¶20.   The comment to Rule 79 of the Mississippi Rules of Civil Procedure reads:

       Rule 79(a) specifies that the docket entries reflect the date on which entries are
       made in the general docket. Since several important time periods and
       deadlines are calculated from the date of the entry of judgments and orders,
       these entries must accurately reflect the actual date of the entries rather than
       another date, such as the date on which a judgment or order is signed by the
       judge.



                                               9
M.R.C.P. 79 cmt. (emphasis added). The comment specifically states that the date which

must be reflected on the docket must be the date the order was entered, not the date it was

signed by the judge. However, this rule does not specify when the order becomes effective.

While Rule 58 specifically reads that a “judgment shall be effective only when entered as

provided in M.R.C.P. 79(a),” neither the rules nor this Court has addressed whether the same

is true for an interlocutory order.

       A.     Judgments

¶21.   Graceland argues the rule for interlocutory orders should be the same as the rule for

judgments because an order that has been signed but has not been entered and made a matter

of public record cannot be binding on the parties. It takes the position that, as a potential

defendant, it was entitled to notice of the order which concerned additional time to serve

named defendants.4

¶22.   Rule 54 defines “judgment” as “. . . a final decree and any order from which an appeal

lies.” M.R.C.P. 54. This rule does not apply to the orders granting Hamlet’s motions for

time, for those orders were not directly appealable. Judgments are markedly distinguishable

from interlocutory orders. Judgments impact more than the rights of the parties. The entry

and filing of a judgment is necessary to give third parties, such as creditors, lien holders, and

other interested third parties, notice of the judgment in order to protect their rights. An


       4
       As discussed supra, Graceland would not have been notified by the clerk even if
Hamlet had promptly filed the order. Further, Graceland was not prejudiced here as Hamlet
sent Graceland a notice-of-intent letter under Section 15-1-36.

                                               10
interlocutory order, with limited exceptions, impacts only the parties. In the present case, at

the time the first order allowing additional time was granted by the trial court, the only party

was the plaintiff, Hamlet. Although this is an issue of first impression, we are able to look

to other courts for guidance on this issue.

       B.     Other Courts

¶23.   Overwhelmingly, our sister states that have discussed the issue have found that an

interlocutory order is effective upon entry by the clerk on the court’s docket. In Finley v.

State, 281 Ark. 38, 39, 661 S.W.2d 358, 358 (1983), that Court held:

       The critical act in such cases is when the order is entered not signed.

       . . . Counsel must see that orders are entered on time; merely obtaining a
       signature on an order is not sufficient to extend the time. Counsel must
       anticipate problems of time and be prepared to do all acts necessary . . . and it
       is no excuse or good cause that a judge, clerk, or reporter . . . fails to file an
       order on time. It is not often the case an official refuses to perform a duty;
       invariably in such cases counsel expects the officials to do the work of
       counsel.

       In this case it was the lawyer’s duty to see that the order was entered, not the
       judge’s.

Finley, 281 Ark. at 39, 661 S.W.2d at 358–59 (citations omitted). In Bowman v. Richland

Memorial Hospital, 335 S.C. 88, 515 S.E.2d 259 (S.C. Ct. App. 1999), that Court held that

“[a]n order is not final until it is written and entered by the clerk of court.” Bowman, 335

S.C. at 91, 515 S.E.2d at 260 (citing First Union Nat’l Bank of South Carolina v. Hitman,

Inc., 306 S.C. 327, 411 S.E.2d 681 (S.C. Ct. App.1991), aff’d, 308 S.C. 421, 418 S.E.2d 545

(1992)). “Until an order is written and entered by the clerk of court, the judge retains

                                              11
discretion to change his mind and amend his ruling accordingly.” Bowman, 335 S.C. at 91,

515 S.E.2d at 260. That Court found that its:

       holding [was] mandated by principles of fairness and equity. The parties to an
       action are not provided with notice of a judge’s ruling at the time the judge
       signs an order. Rather, only after the order is filed with the clerk of court are
       the parties given notice of the order and provided with an opportunity to
       comply with the order.

Bowman, 335 S.C. at 92, 515 S.E.2d at 261.

¶24.   Numerous other state courts have similarly held. See also In re Trust by Crawford,

20 Neb. App. 502, 510, 826 N.W.2d 284, 291 (2013); DeHaven v. Hall, 753 N.W.2d 429,

439 (S.D. 2008) (quoting S.D. Codified Laws § 15-6-58 (West 2017)) (“An order ‘becomes

complete and effective when reduced to writing, signed by the court or judge, attested by the

clerk, and filed in the clerk’s office.’”); Simpson v. Simpson, 377 S.C. 519, 525, 660 S.E.2d

274, 277-78 (S.C. Ct. App. 2008); Hill v. State, 281 Ga. 795, 799, 642 S.E.2d 64 (2007); In

re Guardianship of Hollins, 114 Ohio St. 3d 434, 439, 872 N.E.2d 1214, 1218-19 (2007);

Batts v. Illinois Cent. R. Co., 217 S.W.3d 881, 883 (Ky. Ct. App. 2007) (“Under typical

circumstances, when a trial judge signs an order or judgment it has no effect until it is entered

into the record by the clerk.”); Rollins v. Rollins, 903 So. 2d 828, 833 (Ala. Civ. App. 2004);

Foley v. Fitzpatrick Container Co., 267 A.D.2d 637, 638, 699 N.Y.S.2d 598, 599 (1999)

(“[A]n order is effective on the date of entry thereof and not on the date a decision is signed.

. . .”); State v. Shaw, 4 S.W.3d 875, 878 (Tex. App. 1999); Abels v. Renfro Corp., 126 N.C.

App. 800, 803, 486 S.E.2d 735, 737-38 (1997) (quoting N.C. Gen. Stat. Ann. § 1A-1, Rule


                                               12
58 (West 2017)); Matter of Scheib Trust, 457 N.W.2d 4, 10 (Iowa Ct. App. 1990); Rust v.

Clark Cty. Sch. Dist., 103 Nev. 686, 689, 747 P.2d 1380, 1382 (1987); Dalton v. Dalton, 412

So. 2d 928, 929 (Fla. Dist. Ct. App. 1982) (“An order does not take effect until signed and

filed. . . .”); Lamb v. Superior Court In & For Maricopa Cty., 127 Ariz. 400, 403, 621 P.2d

906, 910 (1980) (“[U]ntil the order is in writing, signed by the court and entered by the clerk

of the court, it is not effective.”); City of Darien v. Dublinski, 16 Ill. App. 3d 140, 144, 304

N.E.2d 769, 773 (1973); In re Montano’s Estate, 38 N.M. 355, 33 P.2d 906, 907 (1934);

Giroux v. Bockler, 98 Or. 398, 417, 194 P. 178, 184 (1921); Massachusetts Mut. Life Ins.

Co. v. Taylor Implement & Vehicle Co., 138 Tenn. 28, 195 S.W. 762, 765 (1917).

¶25.   At least three states have held to the contrary. See Andrews v. Paramount Parks, Inc.,

48 Va. Cir. 232 (1999) (“An order is effective as of the date it is signed by the judge.); State

v. Olsen, 540 N.W.2d 149, 150 (N.D. 1995) (“Absent a statute or rule to the contrary, a

written order of the court is entered and effective when it is signed by the judge; filing of the

order by the clerk is not a prerequisite.”); Cuoio v. Koseris, 68 Idaho 483, 485, 200 P.2d 359,

360 (1948) (“A memorandum decision is not effective as an order until signed by the trial

judge or entered in the minutes.”) (emphasis added).

       C.     Mississippi’s New Rule

¶26.   Given the vast majority of cases and the logic attached to those rulings, we hold that

orders are effective upon filing. Such a rule will “secure the just, speedy, and inexpensive

determination of every action.” M.R.C.P. 1. A party should be responsible for timely filing


                                               13
a motion, ensuring that the judge rules on the motion, and making certain that the resulting

order is timely filed with the clerk.5

¶27.   However, we find an important distinction between ex parte orders and interlocutory

orders in general. The same reasoning applied in the above-cited cases, which involved

multiple parties, does not apply here. In this case, the only pertinent party to the motion and

order was Hamlet. On February 13, 2015, when Hamlet filed her Motion to Extend Time to

Serve Process, Graceland would not have been noticed had the order been filed because it

was not yet a party to the action. Thus, the order was meaningless to anyone but the plaintiff

and her counsel.6 A delay in docketing the order does not affect the trial court’s decision to


       5
          It should be noted that a Rule 6(b) motion that is timely filed within the 120-day
period under Rule 4(h) tolls the 120-day period until the trial court either grants or denies the
motion. Rule 6(b) states: “the court for cause shown may at any time in its discretion . . .
order the period enlarged if request therefore is made before the expiration of the period
originally proscribed.” (Emphasis added.) Also, “[a] trial court has the authority and indeed
a duty to maintain control of the docket and ensure the efficient disposal of court business.”
Venton v. Beckham, 845 So. 2d 676, 684 (Miss. 2003); see also Moore v. Bailey, 46 So.
3d 375, 380–81 (Miss. Ct. App. 2010). Within this duty, a trial court controls the dates that
are available to a party. A party can file a motion within a deadline—and as long as the
party does so the motion is timely, but a party cannot control the particular day on which the
trial court will hear the motion. This situation is similar to the thirty-day period for an
appeal not running until entry of the trial court’s order disposing of outstanding post-trial
motions. See M.R.A.P. 4(d) (“If any party files a timely motion . . . the time for appeal for
all parties runs from the entry of the order disposing of the last such motion outstanding.”).
       6
        This is especially the case here, in a medical-malpractice suit, because Graceland was
put on notice of the suit when Hamlet served her notice-of-intent letter on Graceland
pursuant to Mississippi Code Section 15-1-36. Defendants involved in suits which require
notice prior to filing the complaint are at an advantage as to notice and are aware of potential
suits more than a traditional defendant. Thus, Graceland cannot claim surprise or prejudice
regarding the present suit.

                                               14
grant an extension of time to service process. Hamlet, as the only party to the action, should

not be punished for not immediately filing the order. Hamlet timely obtained an extension

to serve process and timely served process within that extension. Therefore, the statute of

limitations remained tolled. Because Hamlet was the only party to the action, the trial judge’s

order granting her motion for extension of time to serve process became effective once the

order had been signed and had left the trial judge’s control.

¶28.   Therefore, in cases involving ex parte motions, such as the present case, we find that

the order becomes effective upon leaving the judge’s control. Ex parte orders, though, are

still required to be filed promptly into the record. However, in cases in which more than one

party is involved and notice becomes essential, we find that an order becomes effective once

it is entered officially into the record by the court clerk.

¶29.   Of course, there are also certain other orders to which this general rule would not

apply. For instance, temporary restraining orders and other emergency orders (such as

domestic protection orders) are effective before filing with a clerk. See M.R.C.P. 65(b)

(“[T]emporary restraining order . . . shall be filed forthwith in the clerk’s office and entered

of record”). In addition, certain rulings of a trial judge that require immediate action, such

as those under a judge’s contempt powers, would not be subject to the general rule.

¶30.   This rule in no way limits the ability of the trial judge, where otherwise allowed by

law, to enter an order nunc pro tunc, make an order retroactive or have it relate back for




                                               15
enforcement purposes. The purpose of this rule is to effectuate notice to the parties and

establish some finality as relates to the running of deadlines.

       D.     Scafidi

¶31.   We see no need to overrule or distinguish Scafidi as Graceland asks this Court to do

in its alternative argument. Hamlet timely filed her first motion for an extension and obtained

a signed order before the statute of limitations ran in this case.7 While Scafidi did not involve

a statute-of-limitations issue, we find that its holding applies here. Our rules and caselaw

hold that a court, in its discretion, for cause shown, may enlarge the time period for service

of process under Rule 4(h) prior to the expiration of the initial 120-day period. M.R.C.P.

6(b); Scafidi, 911 So. 2d at 960-61. There is no requirement for “good cause shown” when

the motion for extension is timely filed.

¶32.   Further, we will not entertain Graceland’s arguments on appeal that Hamlet failed to

show cause or good cause. This court

       ha[s] been consistent in holding that we need not consider matters raised for
       the first time on appeal, which practice would have the practical effect of
       depriving the trial court of the opportunity to first rule on the issue, so that we



       7
        We also reject Graceland’s argument that Hamlet was required to show good cause
once she had failed to obtain an order within the original 120-day period. We have
recognized before that a party need only show cause under Rule 6(b) for an extension based
on a motion that is timely filed within Rule 4(h)’s 120-day period—even where the motion
is granted after the expiration of the 120-day period. See Johnson v. Thomas ex rel.
Polatsidis, 982 So. 2d 405, 413 (Miss. 2008) (affirming grant of extension for cause on the
123d day), overruled on other grounds by Fulgham v. Jackson, No. 2016-IA-00570-SCT,
2017 WL 2692933, at *3 (Miss. June 22, 2017).

                                               16
       can then review such trial court ruling under the appropriate standard of
       review.

Alexander v. Daniel, 904 So. 2d 172, 183 (Miss. 2005). It is clear from the record that

Graceland’s counsel framed the issue before the trial court as a legal question concerning the

application of the statute of limitations. The argument in the motion to dismiss recognizes

that good cause is not at issue under our holding in Scafidi. In addition, when asked by the

trial court, Graceland’s counsel responded that it would be correct to characterize the issue

in the motion to dismiss as a statute-of-limitations issue. He further argued that “[t]his is an

issue of statute of limitations.” Also, neither party corrected the trial court when it stated that

“good cause shown is not an issue.” Thus, it is clear that the trial court did not rule on the

issue of Hamlet’s cause or good cause; as such, there is no factual finding for us to review

under an abuse-of-discretion standard. See id.; Collins v. Westbrook, 184 So. 3d 922, 929

(Miss. 2016) (reviewing a trial court’s good-cause determination under an abuse-of-

discretion standard).

¶33.   We see no reason to overrule or distinguish Scafidi as Graceland asks us. Scafidi

remains good law today.

                                        CONCLUSION

¶34.   We find that, in general, interlocutory orders are effective upon entry of the order.

However, because the instant case involved an ex parte order, this Court finds that the order

became effective upon leaving the judge’s possession. Therefore, we affirm the trial court’s

denial of Graceland’s motion to dismiss.

                                                17
¶35.   AFFIRMED AND REMANDED.

    KITCHENS, P.J., MAXWELL AND CHAMBERLIN, JJ., CONCUR.
COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
BEAM, J.    WALLER, C.J., RANDOLPH, P.J., AND ISHEE, J., NOT
PARTICIPATING.

       COLEMAN, JUSTICE, DISSENTING:

¶36.   The majority miscasts the issue before the Court today as one of first impression. To

the contrary, it has long been the law in Mississippi that, in order for orders and judgments

to be effective, they must be entered or, as stated in our older cases, “appear on the minutes

of the court.” Evans v. State, 144 Miss. 1, 108 So. 725, 726 (1926). Accordingly, I must

respectfully dissent.

¶37.   The Evans Court wrote,

       All the judgments and orders of the circuit courts can be evidenced alone by
       their minutes. It makes no difference how unimportant a judgment of a circuit
       court may be considered, it is of no validity or force whatever unless it appear
       upon the minutes of the court. The court can act in no other manner so far as
       its judgments are concerned. The principle is of universal application. There
       are no exceptions. . . . There must be a perpetual memorial of the judgments
       of circuit courts, not alone of their final judgments, but of all interlocutory
       judgments and orders affecting the rights of the parties, and that memorial is
       the minutes of the courts. There is no other place to go to ascertain what those
       judgments are.

Id. (emphasis added). “The rule in this State is that every decree is in the breast of the court

until entered, and a decree has no validity until written out and signed by the chancellor.”

Orr v. Myers, 223 Miss. 856, 862, 79 So. 2d 277, 278 (1955) (emphasis added).


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¶38.   The majority follows the law described above as long as more than one party has

appeared in a lawsuit, but would except cases in which only the plaintiff has appeared. To

reach its result, the majority engages in something akin to no-harm, no-foul reasoning. The

majority’s reasoning is flawed and fails to address other concerns. For example, defense

attorneys, aware of the filing of a lawsuit against their clients, can monitor court filings to

advise their clients and their insurers regarding the risks of the litigation. When the public

record indicates that the time for service has passed, the attorney and potential defendant

make risk assessments and strategic decisions accordingly. To allow them to be surprised

by condoning behavior that keeps orders of the court secret cannot be considered fair.

Today’s holding allows plaintiffs in civil litigation and parties in ex parte proceedings

intentionally to pocket orders to surprise other parties and the public for strategic advantage.

I cannot concur in such a result. Our courts should exercise their considerable powers in the

full view of the public eye – not in secret.

¶39.   Because the law has long been that both orders and judgments must be entered to be

effective, I would reverse the trial court’s decision and render judgment in favor of the

defendants.

       BEAM, J., JOINS THIS OPINION.




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