J-O 11- L~-/3f&;,3 -- toile'

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1 J-O 11- L~-/3f&;,3 -- toile' Certificate of Interested Persons The undersigned counsel of record certifies the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court and/or Court of Appeals may evaluate possible disqualification or recusal. l Lawrence Covington Shelia McDaniel as Executrix of the Estate Of Darryl Wayne Necaise, Sr. Carlos E. Moore A. E. (Rusty) Harlow, Jr. Sabrina D. Howell Honorable Vicki B. Cobb Appellant Appellee Attorney for Appellant Attorney for Appellee Attorney for Appellee Chancellor This the I~y of April, By: Respectfully submitted, Estate of Darryl Wayne Necaise, Sr. ~~ A. E. (RUSTY) HARLOW, JR., SABRINA D. HOWELL ATTORNEYS FOR APPELLEE

2 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PARTIES... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii STATEMENT OF THE CASE... I SUMMARY OF THE ARGUMENT... 4 LAW AND ARGUMENT STANDARD OF REVIEW... 5 II. III. THE TRIAL COURT DID NOT ERR IN GRANTING THE APPELLEE'S MOTION TO DISMISS WITH PREJUDICE... 5 THE TRIAL COURT DID NOT ERR IN AWARDING THE APPELLEE ATTORNEY'S FEES... 7 CONCLUSION... 8 CERTIFICATE OF SERVICE

3 TABLE OF AUTHORITIES CASES PAGE Holmes v. Coast Transit Authority 815 So.2d 1183 (Miss.2002)... 5, 6 In re Spencer, 985 So.2d 330, (Miss.2008)... 7 Stutts v. Miller, 37 So.3d 1 (Miss.2010)... 6,7 Watters v. Stripling, 675 So.2d 1242, 1243 (Miss. 1996)... 6 Wyssbrod v. Wittjen, 798 So.2d 352, 357 (Miss.2001)... 7 STATUTES PAGE Miss. Code Ann RULES PAGE MRCP MR.CP iii

4 STATEMENT OF THE CASE On September 13,2007, the Appellant filed a Complaint against Darryl Wayne Necaise, Jr., Linda Necaise, Chris Longstreet, and Darryl Necaise, Sr. in Yalobusha Circuit Court Cause Number CV M-Y I, alleging as causes of action: (I) Intentional and/or Negligent Infliction of Emotional Distress; (2) Civil Assault and Battery; (3) False Arrest / False Imprisonment; and (4) ///'" Premises Liability (hereinafter "2007 cause"). The Defendant, Darryl Wayne Necaise, Sr., was never served with process in the 2007 cause, and no motion was ever filed by the Appellant requesting additional time to serve said Defendant. On December 10, 2007, the Appellant filed an Application for Entry of Default and Supporting Affidavit requesting that the clerk enter a Default against the Defendants, Darryl Wayne Necaise, Jr., Linda Necaise, and Chris Longstreet. On February 6,2009, Darryl Wayne Necaise, Sr. passed away. A will as produced by his daughter, Shelia Necaise, which was admitted to probate with Shelia being granted Letters Testamentary on March 24, 2009 in Yalobusha County Chancery Court Cause No VC. On or about the 28'h day of May, 2009, the Appellant filed a Verified Creditors' Notice of Claims in the Estate, asserting that the estate of Darryl Wayne Necaise, Sr. is liable to the Appellant for a sum not to exceed $1,000, in connection with the 2007 cause. Upon receipt of the Notice of Claim, counsel for the Executrix directed correspondence to counsel for Appelant advising him that Mr. Necaise had never been served with process and that more than 120 days had passed since the filing of the Complaint. Appellant then filed an Amended Complaint on June 8, 2009, adding the Estate of Darryl Wayne Necaise, Sr. as a Defendant and served the estate through its counsel, twenty months after the filing of the original Complaint. The Executrix of the Estate of Darryl Wayne Necaise, Sr.

5 requested leave of the Chancery Court to represent the Estate in the Circuit Court action and was granted permission to provide a defense for the Estate upon said Petition. Counsel for the Estate filed a Motion to Dismiss the 2007 cause and after a hearing before the Court, the Appellant's Complaint was dismissed on September 1, After filing motions with the Chancery Court to dismiss the creditor claim, as well as multiple other frivolous motions filed by the Appellant, the Estate counsel received an from counsel for the Appellant advising that there was an a Complaint still pending in Lawrence Covington vs. Estate of Darryl Wayne Necaise, Sr., Yalobusha Circuit Cause No. CV B Y 1 (hereinafter "2009 cause") and that he would be proceeding with litigation. At no time in the protracted litigation of the 2007 cause or the Chancery Court case did Appellant's counsel ever advise the Estate's counsel oflhe 2009 filing. Furthermore, the Appellant's counsel never advised the presiding Judge in the 2007 cause of the 2009 Complaint. A review ofthe Court file revealed the following facts to the Estate regarding the 2009 cause. The Appellant filed his Complaint in the above styled and numbered cause against the Appellee, Estate of Darryl Wayne Necaise, Sr. on October 23,2009 alleging as causes of action: Intentional and/or Negligent Infliction of Emotional Distress and Premises Liability. The Appellant asserted that the causes of action arose out of an incident which allegedly occurred over a period oftime from May 11,2007 through May 13, Also on October 23,2009, Appellant had issued a "Summons by Publication" which contained the name of the Executrix of the Estate, Shelia McDaniel and the address of real prope11y owned by the Estate. Included in the Summons are spaces referring to the date that a response should be filed by a Defendant which were left blank. There was no proof of service ofthe Summons by Publication and inquiries regarding a proof 2

6 of service to Appellant's counsel were unanswered. No other Summons was ever served, let alone issued, for service upon the Estate. At all times during the 2009 cause, Appellant's counsel has had knowledge that the Estate is represented by the Harlow Law Firm and that the Executrix is Shelia McDaniel, a resident of Grenada County, Mississippi. The Appellee filed a Motion to Dismiss the 2009 cause, which was heard by the Circuit Court on August 18, 20 II. The Circuit Couri dismissed the 2009 cause with prejudice and ordered Appellant's counsel to pay attorney's fecs to the estate in the amount 0[$1,

7 SUMMARY OF THE ARGUMENT The Appellant has asserted that he had good cause for failing to serve the Appellee within the 120 days from the filing of his Complaint in the 2009 cause as required by M.R.C.P. 4(h), and, accordingly, that the trial court abused its discretion in granting Appellee's Motion to Dismiss. The trial court exercised its discretion and properly ruled that the Appellant had ample time and opportunity to serve Appellee and did not demonstrate good cause for failure to perfect service. Additionally, due to the fact that the Appellant did not serve the Appellee within 120 days of filing the Complaint, the three year statute of limitations that was tolled once the Compliant was filed began to run at the expiration of the 120 days and expired prior to the Appellee bringing the Motion to Dismiss before the trial court. The trial coul1's ruling that Appellant failed to demonstrate good cause for his failure to timely serve Appellee is entitled to deferential review and is supported by substantial evidence. Further, the trial court's ruling that counsel for the Appellant should pay attorney's fees to the Appellee was well within the trial court's discretion. Therefore, the trial court's ruling must be affirmed. 4

8 LAW AND ARGUMENT I. STANDARD OF REVIEW The Supreme Court of Mississippi in Holmes v. Coast Transit Authority held "[t]he trial court's finding of fact on the existence of good cause for the delay in the service of process has been deemed a discretionary ruling... and entitled to deferential review on appeal. 815 So.2d 1183 (Miss.2002). When reviewing fact-based findings, [the Appellate Court] will only examine 'whether the trial court abused its discretion and whether there was substantial evidence supporting the determination.' "Id. II. THE TRIAL COURT DID NOT ERR IN GRANTING THE APPELLEE'S MOTION TO DISMISS WITH PREJUDICE. Rule 4(h) of the Mississippi Rules of Civil Procedure requires dismissal of a case if the summons and complaint is not served within 120 days of 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. Rule 4(h) requires that a case be dismissed without prejudice if "service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the paliy on whose behalf such service was required could not show good cause why such service was not made within that period." The Holmes Court stated "filing a complaint tolls the applicable statute of limitations 120 days, but if the plaintiff fails to serve process on the defendant within that 120 day period, the statute of limitations automatically begins to run again when that period expires... A plaintiff who does not serve the defendant within the 120 day period must either re-file the complaint before the statute oflimitations ends or show good cause for failing to serve process on the defendant within that 120 day period; otherwise, dismissal is proper." /d. The 5

9 Supreme Court has held that "a plaintiff attempting to establish 'good cause' must show 'at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counselor ignorance of the rules usually does not suffice." Id. at 1186 (quoting Watters v. Stripling, 675 So.2d 1242, 1243 (Miss. 1996)). A dismissal for failure to perfect service of process within 120 days after the "ling of the Complaint may be with prejudice if the statute of limitations had clearly run upon the motion being heard. Stutts v. Miller, 37 So.3d I (Miss.2010). It is undisputed that the only attempt made at service of process on the Appellee was Summons by Publication. Rule 4 of the Mississippi Rules of Civil Procedure provides for service by publication only whcn a Party shows, by sworn affidavit, that the person being served is "a nonresident of this state 01" not to be found therein on diligent inquiry and the post office address of such defendant be stated ill the complaint, petition, or affidavit, or if it be stated in such sworn complaint or petition that the post office address of the defendant is not known to the plaintiff or petitioner after dil igent in']u iry." M.R.C.P. 4( c)( 4)(A). No such affidavit was filed by the Appellant because it would not be truthful to assert that the Appellee could not be found within the state upon diligent search and inquiry. In fact, the Appellee's counsel accepted service on behalf of the Estate in the 2007 cause and would have done so also in the 2009 cause if it had been requested by the Appellant. Sumll10ns by Publication was not the proper means by which to perfect service on the Appcllee and as it was the only attempt made by the Appellant, the trial court was well within its discretion to lind that thcrc was no good cause for the Appellant to be granted additional time to serve the Appcllce. Even ifthc Summons by Publication had been in proper form, it would not have been cffective scrvice on the Appellee. The Appcllant's counsel admitted on the record at hearing that the statute of limitations for 6

10 the alleged tolis against the Appellant would have run on September 23,2010 and that the Appellant did not file a motion for extension of time to serve the Appellee until November 2,2010. As such, the trial court was well within its discretion to dismiss the Appellant's complaint with prejudice pursuant to Stulls v. Miller. III. THE TRIAL COURT DID NOT ERR IN AWARDING THE APPELLEE ATTORNEY'S FEES. "The decision to award monetary sanctions under the Litigation Accountability Act is left to the discretion of the trial court." In re Spencer, 985 So.2d 330, (Miss.2008) (citing Miss.Code Ann (Rev.2002)). "The same is true for sanctions awarded under Rule II of the Mississippi Rules of Civil Procedure." Id. at 337 (citing M.R.C.P. I I (b)). "[A Mississippi appellate court] reviews the judgment of the sanctioning trial court for abuse of discretion." Id. (citing Wyssbrod v. Witljel1, 798 So.2d 352, 357 (Miss.2001)). Therefore, the trial court's imposition of sanctions will not be disturbed absent a finding of "a clear error of judgment." Id. (quoting Wyssbrod, 798 So.2d at 357). There is no rcas,," to believe that the trial court abused its discretion in awarding attorney's fees to the Appellee. At hearing, the trial court addressed the Appellant's counsel regarding the Rules of Professional Clll'lluct and allowed counsel to provide an explanation as to his actions. The trial couli took the iss"" or attorney's fees under advisement and thoroughly considered the implication of an award of allol11ey's fees. The trial couli's,.,t1ing should be affirmed. 7

11 CONCLUSION The Appellee would respectfully suggest that the Appellant has provided neither facts nor rules of law that support any of his contentions for appeal. His assertions that the present matter should not have been dismissed with prejudice is without merit. The Appellant made no showing of good cause as to why he failed to serve the Appellee within 120 days of the filing of his Complaint. The Appellee respectfully requests that the Court uphold the trial court's ruling and assess the fees and costs of this appeal, including the Appellee's attorney's fees, to the Appellant. Respectfully submitted, Esa1ie of DarrylWayne Necaise, Sr. BY: A. E. (Rusty) Harlow, Jr., MSI3. Sabrina D. Howell, MSBMN.llii Harlow Law Firm 1360 Sunset Drive, Suite 3 Grenada, MS Fax Attorneys for Appellee 8

12 CERTIFICATE OF SERVICE I, Sabrina D. Howell, attorney for the Appellee, do hereby certify that I have this day mailed by United States Mail, postage prepaid, a true and correct copy of the above and foregoing Appellee's Brief to: Carlos E. Moore P.O. Box 1402 Grenada. MS Honorable Vicki B. Cobb Chancery Court Judge P.O. Box 1104 Batesville, MS Dated, this the t ~ay of April, Sabrina D. Howell 9