MOTION FOR REHEARING

Transcription

1 E-Filed Document Aug :46: IA SCT Pages: 18 IN THE SUPREME COURT OF MISSISSIPPI GRACELAND CARE CENTER OF NEW ALBANY, LLC, ADVANCED HEALTHCARE MANAGEMENT, INC., KAREN CLAYTON, in her official capacity as administrator, SHARON WINDHAM, and W. LARRY OVERSTREET APPELLANTS V. NO IA SCT TERESA HAMLET, on behalf of Jimmy Kinard, Deceased APPELLEE INTERLOCUTORY APPEAL FROM THE DECISION OF THE UNION CIRCUIT COURT, CASE NO MOTION FOR REHEARING OF COUNSEL: Thomas L. Kirkland, Jr. (MSB # 4181) Andy Lowry (MSB # ) COPELAND, COOK, TAYLOR & BUSH, P.A. Post Office Box 6020 Ridgeland, Mississippi Telephone: Facsimile: alowry@cctb.com

2 TABLE OF CONTENTS Page Table of Contents i Table of Authorities ii Motion for Rehearing I. Under Fulgham, This Court Must Reverse and Render the Order Below A. Hamlet Made No Showing of Any Cause for More Time B. The Holding of Fulgham Is That Cause Must Be Shown C. Because the Intervening Fulgham Decision Decides This Case, Remand Is Not Necessary D. The Opinion Appears Mistaken That Filing a Motion Tolls the Statute of Limitations II. Mississippi s New Rule Is Contrary to Mississippi Law A. Circuit Courts Are Courts of Record, and Can Act Only on Their Dockets B. Secret Orders Violate Mississippi Law Conclusion Certificate of Service i-

3 Cases: TABLE OF AUTHORITIES Page Bang v. Pittman, 749 So. 2d 47 (Miss. 1999) Cal-Bay Int l, Inc. v. Supertrail Mfg., 383 Fed. Appx. 475 (5th Cir. June 23, 2010) Cellular S., Inc. v. BellSouth Telecommc ns, LLC, 214 So. 3d 208 (Miss. 2017) Center for Constitutional Rights v. Lind, 954 F. Supp. 2d 389 (D. Md. 2013) Cross Creek Productions v. Scafidi, 911 So. 2d 958 (Miss. 2005) Ex Parte Capital U-Drive-It, Inc., 630 S.E.2d 464, (S.C. 2006) Fulgham v. Jackson, No IA SCT (Miss. June 22, 2017) , 2--3 Gannett River States Pub. Co. v. Hand, 571 So. 2d 941 (Miss. 1990) Guthrie v. Renfro, 703 So. 2d 846 (Miss. 1997) Hollie v. State, 174 So. 3d 824 (Miss. 2015) In re Estate of Cole, 163 So. 3d 921 (Miss. 2012) Leggett v. Graybar Elec. Co., 2015 U.S. Dist. LEXIS (S.D. Miss. Apr. 13, 2015) Level 3 Commc ns, LLC v. Limelight Networks, Inc., 611 F. Supp. 2d 572 (E.D. Va. 2009) Miss. Transp. Comm n v. Ronald Adams Contractor, Inc., 753 So. 2d 1077 (Miss. 2000) Nixon v. Warner Commc ns, 435 U.S. 589 (1978) Rufer v. Abbott Labs., 114 P.3d 1182 (Wash. 2005) Spencer Med. Assocs. v. Comm r, 155 F.3d 268 (4th Cir. 1998) State ex rel. Cincinnati Post v. Court of Appeals, 604 N.E.2d 153 (Ohio 1992) United States v. Martinez, 749 F.2d 623 (11th Cir. 1984) ii-

4 Page Watson v. Price, 712 S.E.2d 154 (N.C. Ct. App. 2011) Constitution, Statute & Rules: Miss. Code Ann Miss. Const. art. 3, Miss. Const. art. 4, M.R.C.P M.R.P.C , 8 -iii-

5 MOTION FOR REHEARING In Fulgham v. Jackson, a decision handed down on June 22, 2017 (after oral argument in the present case, but before the August 17 Opinion in this case), the nine justices of this Court held unanimously that no party is entitled to an enlargement of time under Rule 6(b)(1) without a legitimate reason, made in good faith, as to why the enlargement of time should be granted. Fulgham, No IA SCT, at 14. But in the present case, the record on appeal is clear that Hamlet s motions for time under Rule 6(b)(1) articulated no such reason, indeed no reason whatsoever. Yet the Opinion did not so much as mention Fulgham. The plurality ignored controlling law. The intervening Fulgham decision says that Hamlet s case should be dismissed. It is dispositive authority which this Court has overlooked or misapprehended, making rehearing under M.R.A.P. 40(a) as appropriate as it has ever been. Other reasons supporting rehearing will be discussed below (such as, the Opinion announces a new tolling rule in a footnote; the Opinion conflicts with statutory, constitutional, and common law; the Opinion disregards the public s rights), but Fulgham alone suffices. I. Under Fulgham, This Court Must Reverse and Render the Order Below A. Hamlet Made No Showing of Any Cause for More Time A brief review of the pertinent facts in the present case shows that Hamlet filed her lawsuit October 17, 2014 and filed a Rule 6(b)(1) motion on February 13, 2015, the day before her 120 days to serve process expired. That motion stated no reason why service could not have been completed on any Defendant in the four months since she filed suit. Instead, it said: Process to the Defendants has been issued, but as of this date, -1-

6 service is incomplete. Therefore, Plaintiff respectfully requests that this Court enter an Order extending the time for serving process in this cause. R.E. 3. The trial court granted the motion in its order filed April 14, 2015, without making any finding that cause had been shown. R.E. 4. There is thus no room for dispute that Hamlet s ex parte motion, submitted and granted without a hearing, did not comply with Rule 6(b)(1). The Opinion of this Court in the present case, however, passed over this defect by holding that the trial court did not have the issue of cause before it. B. The Holding of Fulgham Is That Cause Must Be Shown If cause was not decided upon by the circuit court, that may be because there was perhaps some room for confusion whether cause was still required to be shown under Rule 6(b)(1). This Court held, in Cross Creek Productions v. Scafidi, 911 So. 2d 958 (Miss. 2005), that more time was properly granted under Rule 6(b)(1) in the absence of bad faith or prejudice, without mentioning how Scafidi showed any sort of cause at all. Scafidi, 911 So. 2d at 960. At least one federal court certainly thought that this Court had read for cause shown right out of the rule: His motion met the cause standard under Mississippi law because there was no bad faith or prejudice to the defendant. Leggett v. Graybar Elec. Co., 2015 U.S. Dist. LEXIS 48222, at *7 (S.D. Miss. Apr. 13, 2015) (applying Scafidi) (emphasis added). It thus seemed pointless to ask the circuit court to make findings on cause. But all confusion was removed when this Court issued its Fulgham decision, wherein it said of Scafidi that we determined that, under Rule 6(b), a party need only show cause to obtain an enlargement of time so long as the enlargement is sought -2-

7 within Rule 4(h) s 120-day period. Fulgham at 11. Whatever Scafidi may have seemed to say before, its holding now must be interpreted as this Court did in Fulgham. And Fulgham is an intervening decision that must apply to the present case, regardless of what was argued before the circuit court. Obviously, no one could have cited a case not yet handed down. See Miss. Transp. Comm n v. Ronald Adams Contractor, Inc., 753 So. 2d 1077, 1093 (Miss. 2000) (court decisions have retroactive effect on pending cases). This Court in Fulgham went on to explain what for cause shown means: it requires something constituting diligence or a legitimate reason excusing same. Id. at 14. Because the plaintiff Jackson had continuously sought to locate the defendant, who was in prison, and had been misdirected by an incorrect statement from a prison official, this Court held that legitimate reasons had been articulated. Id. at 16. Therefore, more time to serve process is not to be had merely for the asking, or merely because process has not yet been served. A movant is required to show either diligence or a legitimate reason excusing same, or else it is an abuse of discretion to grant a Rule 6(b)(1) motion. Id. at 15. C. Because the Intervening Fulgham Decision Decides This Case, Remand Is Not Necessary At this point, we could reverse and remand to the [lower] court for resolution of the ultimate issue, but judicial efficiency mandates our disposing of the case at last. No facts are in dispute. Cal-Bay Int l, Inc. v. Supertrail Mfg., 383 Fed. Appx. 475, 480 (5th Cir. June 23, 2010) (unpub. op.). There is no factual dispute here: Hamlet s February 2015 motion made no showing, assertion, or articulation of any diligence on her part or of any legitimate reason for a lack of diligence. Under Fulgham, there can be only one -3-

8 result: reversal of the order granting more time, as it was an abuse of discretion for the circuit court to grant more time without cause shown. Five named Defendants were sued, two companies and three individuals. Hamlet had four months to serve each of them with process or else explain why she didn t. She did neither. Not even one was served. No attempt at service was alleged. No remand, no hearing, can change her failure to show cause in her February 2015 motion. Compare the case of Guthrie v. Renfroe, 703 So. 2d 846 (Miss. 1997), wherein this Court addressed a motion in chancery court for leave to file an out-of-time appeal; the rule required a showing of excusable neglect, but Guthrie showed no excusable neglect in her motion to the court. The entire motion was as follows: Plaintiff moves the Court to grant her leave to appeal the order of the court entered on August 13, 1996, notwithstanding that more than thirty days from that date have elapsed. Guthrie, 703 So. 2d at 848. This Court held that the chancery court abused its discretion in granting her leave, because Guthrie made no such showing to the trial court and in fact gave no reason at all for the delay in filing the notice of appeal. Id. Guthrie s motion was materially identical to the one Hamlet filed: give me more time because I want it. If Guthrie was correctly decided, its result must apply to Hamlet as well. Whatever Hamlet might say now in a hearing, she was required to say it in her motion. Ex parte motions are not automatically entitled to do-overs, where once the movant is confronted by opposing parties who question the lack of basis for the motion after it s been granted, the movant gets a second bite at the apple. To hold otherwise would be to concede that the ex parte process is a travesty to which no rules apply. But that is not so: -4-

9 The object of an ex parte proceeding is nevertheless to yield a substantially just result. The judge has an affirmative responsibility to accord the absent party just consideration. The lawyer for the represented party has the correlative duty to make disclosures of material facts known to the lawyer and that the lawyer reasonably believes are necessary to an informed decision. M.R.P.C. 3.3(d) cmt. (emphasis added). Hamlet cannot have reasonably believed that she was not required to show cause for additional time to serve process, given the plain language of Rule 6(b)(1) making cause necessary to an informed decision. And the circuit court, granting relief without even the ghost of an attempt to make such a showing, did not meet its affirmative responsibility to accord the absent party just consideration. This Court should therefore spare all the parties, as well as the circuit court, the time and trouble of prolonged litigation. The circuit court erred as a matter of law in granting more time for service of process without any cause shown. Because it was error to grant more time, the statute of limitations expired on Monday, March 23, 2015, three weeks before Hamlet served anyone with process. This Court should reverse and render a judgment for Defendants. D. The Opinion Appears Mistaken That Filing a Motion Tolls the Statute of Limitations The plurality in its footnote 5 to paragraph 25 of the Opinion made an assertion day period under Rule 4(h) tolls the period until the trial court disposes of the motion if brought on for a hearing in a diligent manner. The absence of any citation to case law appears to concede that this is not a principle already recognized in Mississippi. Respectfully, it appears to be neither correct nor practical. without offering any support in Mississippi law: a timely filed motion within the

10 It is not correct, because to the best knowledge of the present movant, this Court has never so held. Justice McRae made that claim in a dissenting opinion, but cited only inapposite out-of-state cases. Bang v. Pittman, 749 So. 2d 47, 54 (Miss. 1999) (McRae, J., dissenting); see Brief for Appellant at 6. If filing a motion to extend... automatically tolled the running of the period until the court ruled on the motion to extend, regardless of the court s ruling, the court would in large measure lose the power to grant or deny an extension. Spencer Med. Assocs. v. Comm r, 155 F.3d 268, 272 (4th Cir. 1998). But as the Opinion says in the same footnote, trial courts have the authority and the duty to control their own dockets (citing Venton v. Beckham, 845 So. 2d 676, 684 (Miss. 2003)). Footnote 5 delegates that power over the docket to ex parte parties. And it is not practical, because the Opinion forgets its own context when it says if brought on for a hearing in a diligent manner. There is seldom such a thing as an ex parte hearing for a Rule 6(b)(1) motion. The motion in the present case was simply mailed to the court with a prepared order, which the court signed and returned. Hamlet then let the order sit for weeks. When was this motion brought on for a hearing? (If the concern is that a party is powerless to force the court to rule promptly on its motion, that simply means that parties are required to be diligent in timely presenting their motions and in seeing that they are entered. It is not the fault of the court if a party waits until the day before a deadline to finally beseech the court for relief. See Reply Brief for Appellants at 7 8.) A footnote unsupported by any authority is, we respectfully submit, an inappropriate vehicle for creating such a tolling rule. If the rule is not a new one (and we note that Hamlet never cited a case to support it in her own brief), its basis in precedent -6-

11 should be cited. If the rule is a new one, its basis and justification should be openly explained and its effect detailed. How long is the period tolled? Until the judge signs the order? Or for the seven weeks that the plaintiff sits on the order until filing it? What about three months, or even longer? Given the importance of a defined tolling period, delimiting it merely as reasonable invites more litigation down the road in other cases. Rule 6(b)(1) required Hamlet to show cause. She didn t. The circuit court erred in granting her additional time, and its order should be reversed, and judgment entered for Defendants. II. Mississippi s New Rule Is Contrary to Mississippi Law While the plurality was correct to recognize the force of the black-letter rule that orders must be filed as of record to take effect, it nonetheless hand-crafted an exception that yielded the result of affirming the decision below: orders must be filed as of record, except when no defendant has entered an appearance. Until then, the only parties with any interest in the matter, it appears from reading the Opinion, are the plaintiff and the court. Op. at Not a single authority cited by the Opinion recognized any such distinction. In fact, one of the cases cited by the Opinion has been relied upon to support the holding that an ex parte order extending time for the statute of limitations does not take effect until filed. Watson v. Price, 712 S.E.2d 154 (N.C. Ct. App. 2011), review denied, 718 S.E.2d 398 (N.C. Nov. 9, 2011) (citing Abels v. Renfro Corp., 486 S.E.2d 735, (N.C. 1997)); see Opinion at 23 (citing Abels). -7-

12 A. Circuit Courts Are Courts of Record, and Can Act Only on Their Dockets This new rule is not consistent with the letter or spirit of M.R.P.C. 3.3(d) as cited above. It is also not consistent with the fact that the circuit court is a court of record: it is well established that a circuit court can speak only through its minutes. Hollie v. State, 174 So. 3d 824, 836 (Miss. 2015) (emphasis added). (Or at least, it was well established, until the Opinion issued in the present case.) The court s minutes are its docket. of record: This is consistent with the general understanding of what is required of a court A court of records has been deemed to speak only through its records, United States v. Eisner, 329 F.2d 410, 412 (6th Cir. 1964) (per curiam), and thus as a general rule, an order granted on a motion should, in order to become complete and effective, be entered, filed, or made a part of the minutes or record of the court. 60 C.J.S. Motions and Orders 59(1) (1969); see, e.g., Barry v. Robson, 65 So. 2d 739, 740 (Fla. 1953). United States v. Martinez, 749 F.2d 623, 625 (11th Cir. 1984) (emphasis added). A court of record simply cannot exclude the entire class of ex parte orders without ceasing to be a court of record. To hold otherwise is to hold that secret orders, known only to the judge and to one side in a lawsuit, may govern proceedings, and to hold as well that interested parties in lawsuits may keep such orders in their own custody, choosing if and when to apprise the public that they have been entered. There are indeed countries where secret orders routinely govern judicial proceedings, but the United States of America has never been thought to be one of those countries. Mississippi should not take that path. -8-

13 B. Secret Orders Violate Mississippi Law The Opinion does not appear to fully consider the ramifications of its creation of a category of secret orders hidden from the public. Such a sweeping rule applied to all ex parte orders violates the constitutional right to open courts, the common-law right to access judicial documents, and the Public Records Act. Open courts: The right to open courts is guaranteed in article 3, section 24 of the Mississippi Constitution. Interpreting a materially identical open-courts provision, the Supreme Court of Ohio held that the guarantee of open courts means that the public must have access to the proceedings. State ex rel. Cincinnati Post v. Court of Appeals, 604 N.E.2d 153, 156 (Ohio 1992). Such access must include access to the courts dockets. But that right to access becomes a meaningless sham when secret orders in the case can be hidden by a party from public view. Common law: This right of access is guaranteed as well by the common law of the United States, as recognized by the United States Supreme Court: It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents. Nixon v. Warner Commc ns, 435 U.S. 589, 597 (1978) (holding exceptions must be case-specific) (emphasis added). But when the court can issue an order that takes effect while still in private custody and hidden away from the public eye, the public is deprived of its right, which is not condition[ed]... on a proprietary interest in the document or upon a need for -9-

14 it in a lawsuit, but is rather the common right of every citizen to keep watch upon public servants. Id. at (emphasis added). This common right is overlooked by the Opinion, which appears to believe that no one except the judge and the plaintiff have any interest in whether orders have been signed and delivered. Opinion at But respectfully, it is for the members of the public, not for the members of this Court, to decide what public business is and is not of interest to them. See Rufer v. Abbott Labs., 114 P.3d 1182, 1191 (Wash. 2005) (access serves to strengthen and maintain the public s trust and confidence in our entire judicial system ) (emphasis in original). Public access to judicial proceedings and court records, in both criminal and civil trials, was commonplace and proper when the Bill of Rights was adopted in 1791, and was a right long enjoyed in England in preceding centuries. Ex Parte Capital U-Drive-It, Inc., 630 S.E.2d 464, 468 (S.C. 2006) (emphasis added). Judicial proceedings and court records are presumptively open to the public under the common law, the First Amendment of the federal constitution, and the state constitution. Id. at 10 (citing open-courts clause) (emphasis added). See also Center for Constitutional Rights v. Lind, 954 F. Supp. 2d 389, 400 (D. Md. 2013) (First Amendment); Level 3 Commc ns, LLC v. Limelight Networks, Inc., 611 F. Supp. 2d 572, (E.D. Va. 2009) (common law & First Amendment). This Court has agreed, on First Amendment grounds, that the public is entitled to notice of official acts by their entry on the general docket. Gannett River States Pub. Co. v. Hand, 571 So. 2d 941, 945 (Miss. 1990). This Court should so hold, and the position taken by the three dissenting justices should be adopted as the opinion of this Court. -10-

15 Public Records Act: Court filings are also required to be public and available for inspection under our state s Public Records Act. Miss. Code Ann ; see In re Estate of Cole, 163 So. 3d 921, 925 (Miss. 2012). Matters for which a sufficient justification for secrecy exists may be filed under seal, id., but there is (and probably can be) no such justification for a Rule 6(b)(1) order. The plurality s new rule in the Opinion thus creates an end-run around the Public Records Act, by creating a new exception to the requirement that orders must be filed; if not filed, then they aren t public records and thus not required to be available to the public. And yet, although not filed, they are effective and binding. It is no different than if any other public body were to create significant documents and then say that they aren t required to be available to the public, because the public body decided to keep its copies outside its offices. Such an extraordinary stratagem violates the spirit if not the letter of the Public Records Act, for it subverts the Legislature s purpose in enacting that statute: It is the policy of the Legislature that public records must be available for inspection by any person unless otherwise provided by this act. Furthermore, providing access to public records is a duty of each public body. Miss. Code Ann (emphasis added). This Court has acknowledged that Mississippi Code Section (1)(a) expressly makes public records the property of the public. Cellular S., Inc. v. BellSouth Telecommc ns, LLC, 214 So. 3d 208, 215 (Miss. 2017) (emphasis added). If judicial orders are the property of the public, they cannot be passed off to a party or its attorney to be held in secret. If an order of a circuit court, signed by a duly elected or appointed holder of an office created by the Constitution of this State, is not a public record, then nothing is -11-

16 a public record. In its effort to reach its result, the Opinion disregards the right of every Mississippian to know what his or her courts are doing. The Opinion also suggests that in the present case, the fact that a notice of claim was served on (some) Defendants was sufficient notice to the parties. Opinion at 26 n.6. But by no means does every notice of suit actually lead to a lawsuit s being filed. More importantly, while the notice might have alerted them to consult the docket, it could not enable them to see orders kept secret from the docket. Anyone consulting the docket in the present case would have been on notice that, to all appearances, the statute of limitations had expired without service of process having been timely made. But that conclusion would have been false, because the court and the plaintiff were entitled under Mississippi s new rule to conceal the facts from the public. The statute of limitations creates a valuable right protected by article 4, section 97 of the Mississippi Constitution, and defendants as much as any other members of the public are entitled to consult the dockets of our courts to learn the true facts concerning that right. But now that has been taken away. When a complaint has been filed, process has not been served, and the statute of limitations appears to have run, no defendant will ever be able to rest assured that his rights under the statute have vested because there is no way to know if a secret order, extending the time to serve process for two months, or six months, or a year, is in the plaintiff s pocket. Secret orders are neither proper, nor constitutional, nor legal, outside the rare circumstances that have always justified placing certain matters under seal. This Court -12-

17 should so hold. The Opinion should be withdrawn, and the order below should be reversed. CONCLUSION For all the reasons set forth above and in the dissenting opinion by Justice Coleman, the Opinion should be withdrawn, and a new opinion issued, reversing the order below and rendering a judgment for Defendants. Respectfully submitted, this the 25th day of August, GRACELAND CARE CENTER OF NEW ALBANY, LLC, ADVANCED HEALTH-CARE MANAGEMENT, INC., KAREN CLAYTON, W. LARRY O V E R S T R E E T, a n d S H A R O N WINDHAM By: s/ Andy Lowry Andy Lowry Counsel for Appellants Of Counsel: Thomas L. Kirkland, Jr. (MSB # 4181) Andy Lowry (MSB # ) Copeland, Cook, Taylor & Bush, P.A. Post Office Box 6020 Ridgeland, Mississippi Telephone: Facsimile: alowry@cctb.com COUNSEL FOR APPELLANTS -13-

18 CERTIFICATE OF SERVICE The undersigned counsel of record for Appellants hereby certifies that he has caused to be served on this date, via this Court s electronic filing system or United States mail (postage prepaid), a true and complete copy of the foregoing document to the following: The Honorable J. Kelly Luther First Circuit Court District 102 North Main Street, Suite F Ripley, Mississippi (via U.S. mail) R. Shane McLaughlin, Esq. Nicole H. McLaughlin, Esq. 338 North Spring Street, Suite 2 Tupelo, Mississippi So certified, this the 25th day of August, s/ Andy Lowry Andy Lowry -14-