IN THE SUPREME COURT OF MISSISSIPPI NO. 2015-IA-01829-SCT GRACELAND CARE CENTER OF NEW ALBANY , LLC, ADV

ANCED HEALTHCARE MANAGEMENT, INC., KAREN CLAY TON, IN HER OFFICIAL CAPACITY AS ADMINISTRATOR OF GRACELAND CARE CENTER OF NEW ALBANY , W. LARRY OV ERSTREET 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 LOW RY THOMAS L. KIRKLAND, JR. COURT FROM W HICH APPEALED: UNION COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: ANDY LOW RY 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 m o tion f

or rehearing is denied. The o riginal opinions are withdrawn, and these opinions are substituted theref or.¶2. Teresa Ham let f iled a m otion f

or an extensi o n o f t i me 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 m otion and signed an order, y et the order was not f i led with the circuit

c l e r k u ntil the d ay bef

ore the granted extension expired, well af ter the expiration of the original, 120-day deadline. Ham let served process on three def e ndants d uring the extension. On the sam e day the order was f iled, H am let f

iled a second m otion f

or tim e, which the trial

c o u r t also granted. W hile Ham let served process on the rem aining d ef endants within the second extension period, the order granting the second extension was not f i led with the clerk until three m onths af

ter it was signed by

the judge. ¶3. The def

endants f i led a m otion to dism iss H am let’s com p laint, arguing that the statute of lim itations had run bef ore the court’s order granting additional tim e to serve process had been e n tered by the clerk o f court. The def endants f urther argued that H am let’s s uit could not be revived by the untim ely f iled order. T he trial court denied t h e d e f endants’ m otion to dism iss. B ecause Ham let was the only party to the action, we f ind that the trial judge’s order granting her m otion f

or e xtension of tim e to s erve process becam e ef f ective once the order had been signed and had lef t the trial judge’s control. Accordingly , w e a f f i rm the decision of the trial court. H owever, in cases where m ore than o ne party is involved, notice becom es essential. Theref

ore, i n cases involving m

ultiple parties, we adopt the h olding of the m ajority of states that require the entry of an interlocutory

order bef ore it becom es ef

f ective.
STATEMENT OF FACTS AND PROCEDURAL HISTORY

2¶4. J i mm y Kinard died o n Septem ber 23, 2 012. 1 On October 17, 2014, Teresa H a ml e t , Kinard’s si ster, f

iled suit a gainst Graceland Care C enter of New Albany , LLC; Advanced Healthcare Managem ent, Inc.; Karen Clay ton, in her of

f i c i a l c apacity as adm inistrator of Graceland Care Center o f N e w A l bany ; W

. L arry Overstreet; Sharon W indham ; and John
Does 1-10, jointly and individually (collectively ref e rred to as “ G raceland”). Ham let alleged that Graceland’s negligence was the proxim ate cause of Kinard’s death. ¶5. The 120-day deadline to serve process as provided under Rule 4(h) of the Mississippi Rules o f Civil Procedure would have expired on February 14, 2015. On February 13, 2015,
Ham let f iled a Motion to Extend Tim e to Serve Process. ¶6. On February 23, 2015, the trial judge signed an o rder granting H am let sixty day s f rom February 14, 2015, t o serve process on the d ef endants. However, the order was not entered by the clerk of the court u ntil April 14, 2015, o ne day prior to the e xpiration of the sixty -day extension. ¶7. Ham l et served three def endants o n April 14, 2015. On that sam e day , H am let f iled a Second Motion to Extend Tim e to Serve Process, arguing that, while her deadline to serve def endants “will run on o r about April 15, 2015,” process to def endants rem ained incom plete. On April 1 6, 2015, t h e t r i a l judge signed the order granting Ham let’s second

m otion f or extension o f tim e to serve process, allowing Ham let an additional sixty day s f rom

1 B ecau se th e issu es b ef

o re th is C o u rt are p u rely p ro ced u ral in n atu re, it is n o t n ecessary to d elv e in to th e f

acts su rro u n d in g K in a r d ’s d eath

.

3April 15, 2 015, to s erve process on the def endants. The c ircuit c ourt clerk did not enter this order until July 14, 2015. ¶8. The f

ollowing tim eline illustrates the pertinent dates: Sept. 23, 2012 Jim m y Kinard passed away (statute of

lim i tations begins to run). July 25, 2014 Notice of

claim sent to Graceland, tolling statute of lim itations f

or sixty day s per Miss. Code Ann. § 15-1-36. Sept. 23, 2014 Earliest date Ham let could f ile suit under Section 15-1-36. Oct. 17, 2014 Com

p laint f iled. 120-day period to serve process begins, expiring February 14, 2015. Feb. 13, 2015 Ham l et f iles m otion f

or additional sixty

day s to serve process within the 120-day period. Feb. 23, 2015 Court grants Ham let’s m otion f o r an additional sixty

day s to serve process f

rom February 14 until April 15 (“f

irst extension order”). Mar. 22, 2015 Graceland argues that the statute of lim itations expires. Apr. 14, 2015 Clerk enters f irst extension order.
Ham l et perf

ects service on Karen Clay ton, Graceland Care Center, and W . Larry

Overstreet.
Ham l et f iles second m otion f

or tim e. Apr. 15, 2015 Sixty -day period under the f

irst extension order expires. Apr. 16, 2015 Court grants Ham let’s second m otion f or an additional sixty day s to serve process f rom April 15 until June 15 (“second extension order”).
Ham l et perf

ects service on Advanced Healthcare Managem ent, Inc.

4May 15, 2015 Graceland f

iles m otion to dism iss. July 14, 2015 Clerk enters second extension order. ¶9. Graceland f

iled a Motion to Dism iss, contending that the statute of lim itations had run bef ore the April 14, 2015, order extending tim e was entered. G raceland a r gued that Ham let f ailed to serve tim ely

process within 120 day s af ter f i ling her com

plaint, and theref

ore, the

statute of lim itations resum ed af ter the 120 day s. Initially , Graceland argued that Ham let had f ailed t o show “good cause” in her m o t i o n f o r e x tension, which would have satisf ied Mississippi Rule o f Civil Procedure 4(h). 2 G raceland, however, acknowledged that Ham let likely would contend that, w here a m otion f o r tim e is f

iled prior to the e x piration of the 120 day s, the standard o f Mississippi Rule of Civil P rocedure 6( b) applies. See Cross Creek Prods. v. Scafidi , 911 So. 2d 958 (Miss. 2005). 3

2 R u le 4 (h ) states: If a serv i ce o f th e su m

m o n s an d c o m

p lain t is n o t m ad e u p o n a d ef en d an t w i th in 1 2 0 d ay s af

ter th e f ilin g o f th e c o m

p lain t an d th e p arty o n w h o se b eh alf su ch serv ice w as r eq u i red can n o t sh o w g o o d cau se w h y su ch serv ice w as n o t m ad e w ith in th at p e r i o d , th e a ctio n sh a ll b e d ism issed a s to th at d ef en d an t w i th o u t p rej u d ice u p o n th e co u r t ’s o w n in itiativ e w ith n o tice to s u ch p arty o r u p o n m o tio n . M .R .C

. P . 4 (h ).

3 R u le 6 (b ) p ro v i d es th at: [ W] h en . . . an act is r e q u ired o r allo w ed to b e d o n e at

. . . a sp ecif ied t im e, th e co u rt f o r cau se s h o w n m ay at an y tim e in i ts d iscretio n (1 ) w ith o r w ith o u t m o tio n o r n o tice o rd er th e p erio d en larg ed if req u est th e ref o re is m ad e b ef

o re th e ex p iratio n o f th e p erio d o rig i n ally p rescrib ed o r a s ex ten d ed b y a p rev i o u s 5¶10. G r a c e l a n d ’ s argum ent against apply ing R ule 6(b) was twof

o ld. First, Gra c e l a n d argued that Scafidi did n o t involve the statute-of -lim itations tolling rule. Second, G raceland argued that Ham l et’s f

ailure to secure an order bef o re the 1 20-day d eadline expired m ade a showing of good cause n e cessary . Graceland noted that the Scafidi C ourt d id not reveal when the trial court entered i ts order granting an extension of tim e to serve process. Because the 120-day deadline h ad expired without Ham let securing a signed a nd f iled o rder extending the tim e to serve process, it averred that there should be a requirem ent that Ham let show good cause af ter the 120-day

deadline expired. ¶11. In response, Ham l et argued that the Scafidi Court specif

ically held that m otions f

or tim e filed during the 120-day deadline do not r e q uire a showing of good c ause. Id. at 960 ( “ [ T ] h is f inding is s pecif

ically lim ited to those situations where the m otion f or additiona l tim e is f iled before the deadline.”) (em phasis added). Because she f iled h er m otion f

or an extension of tim e t o serve process w ithin the 120-day deadline, Ham let argued that a showing of good cause was not necessary

. ¶12. The trial court held a h earing on the m otion, at which Graceland argued that an order does not becom e ef

f e ctive un t i l i t i s f

i l e d with the clerk and all parties are put on notice. Graceland adm itted this was a case of f irst im pression but likened a n interlocutory order to

o rd er, o r (2 ) u p o n m o tio n m ad e af ter th e ex p iratio n o f th e s p e c i f i e d p erio d p erm it th e act to b e d o n e w h e re f ailu re to act w a s th e resu lt o f ex cu s ab le n eg lect . . . .
M .R .C

. P . 6 (b ). 6a judgm ent not being ef f ectiv e until it is f

iled. Graceland argued that, while a statute of lim itations could be extended b y a c ourt, it could not be resurrected. Graceland also contended that the m ere f iling o f a m otion f

or tim e d id not toll th e s t a t u t e o f lim itations.
Mom ents bef

ore the trial court’s ruling, Graceland’s counsel stated that “prejudice m ight be relevant to the issue [ if

] w e a r e [ sic] showing good cause[ ,] but we conceded that it’s not. This is an issue o f statute of l im i tations, Your Honor.” B ecause the statute of lim i tations had

run prior to the April 14, 2014, order being f iled with the clerk, Graceland pr a y e d t h a t t h e court would dism iss the action. ¶13. Ham l et’s attorney acknowledged t h a t t h e s i g ned order f

r om the judge “m ay h ave spent longer in m y

of f ice than it should have.

. . .” However, Ham let argued that the law did not require a party to secure a nd f ile an order within the initial 120-day period in order to receive

an extension. Ham let stated that G raceland Care Center was s erved on Ap r il 14, 2015, the

sam e day the order granting the extension was f iled and within the extension allowed by the ord er. Also, Ham let argued that no caselaw supported Graceland’s assertion that the order was not ef

f ective until it was entered by the court. ¶14. Af ter considering oral argum ent and docum entary evidence, the trial court conf irm ed with the parties that “[ t ]he question of reasonableness, good c ause shown is n ot an issue.

.

. .” Neither p a r t y objected. T he trial court next recognized that no caselaw on p oint would direct him to dism iss this case and that dism issals were not f avored. A s such, the trial court denied the m otion.

7¶15. Graceland tim ely f iled this interlocutory appeal. On appea l , G r a c e l a n d raises three issues. Firs t , G r a c e land argues that an order i s ef f ective only upon f

iling with the clerk. Second, Graceland claim s that a m otion f iled within the 120-day

period under Rule 4(h) is insuf f icient to resurrect the statute of lim itations where the order granting the m o tion is f iled af ter the statute o f lim i tations runs. Third, Graceland argues that this Court should reconsider and overrule Scafidi

. ¶16. Ham l et raises two issues. First, Ham let argues that an order extending tim e to serve
process is ef

f ective upon the judge’s signing. S econd, Ham let argues that this Court should not overrule Scafidi . For clarity , we will restate and com bine the issues on appeal.
STANDARD OF REVIEW ¶17. “This Court uses a de novo standard of r e v i e w when passing on questions of law including statute of lim itations issues.” S tephens v. Equitable Life Assurance S oc’y , 850 So. 2d 78, 82 (Miss. 2003).
ANALYSIS ¶18. In this case of f

irst im pression, w e are t asked w i t h d e t e r mi n i n g w h e n an order becom es e f

f ective and ultim ately grants the enlargem ent of tim e under R ules 4(h) and 6(b).
I s i t w h e n i t i s a nnounced and/or signed by the judge? Or is it when it is of f icially entered into the record by

the court clerk?

8¶19. Graceland a rgued that, in general, an order does not becom e ef f ective until f

iled with the clerk and all parties are put on notice. The t im e f or service of process in Mississippi is governed by

Rule 4(h), which reads: If a service of the sum mo n s a n d c om plaint is not m ade upon a def endant within 120 day s af

ter the f iling of the com

plaint and the party on whose b ehalf such service was r equired cannot show good c ause why such service was not m ade within that period, the action shall be dism issed a s t o that def endant without prejudice upon the court’s own initiative with notice to such party or upon m otion. M.R.C.P. 4 ( h ) (em

phasis added). Our courts, however, read Rule 4(h) in conjunction with Rule 6(b), which requires only “ cause shown” f or an enlargem ent of tim e when the m otion is f iled bef ore the expiration of the 120-day period. Scafi d i , 9 1 1 S o . 2d at 960; M.R.C.P. 6(b). Rule 6(b) reads:
W h en by these r

ules o r by notice given thereunder o r by order of court an act is required or allowed to be done at or within a sp e c i f i e d tim e , the court for cause shown m a y at a ny tim e in its discretion ( 1 ) with or without m otion or notice order the period enlarged if request theref ore is m ade bef

or e t h e exp i r a t ion of the period originally p rescribed or as extended by a previous order . . . . M.R.C.P. 6(b) (em

p hasis added). ¶20. The com m ent to Rule 79 of the Mississippi Rules of

Civil Procedure reads: Rule 79(a) specif

ies that the docket entries ref lect the d ate o n w hich entries are m ade in the g eneral docket. Si n c e several im portant tim e periods and deadlines are calculated f r o m t he date o f the entry of judgm e nts and orders , these entries m

ust accurately

ref lect the actual date of the entries rather than another d ate, such as the date on which a judgm e nt or o rder is signed by the judge

.

9M.R.C.P. 79 cm t. (em phasis added). The com m ent specif ically states that the date which

m ust be r ef l e c t ed on the docket m

ust be the date the order was entered, not the date it was signed by the judge. However, this rule does not s pecif y when the order becom es e f f ective.
W h ile R ule 58 specif

ical l y r e a d s t h a t a “judgm ent shall be ef f ective only when entered as provided in M.R.C.P. 79(a),” neither the rules nor this Court has a ddressed whether the sam e is true f or an interlocutory

order.
A. Judgm ents ¶21. Graceland argues the rule f or interlocutory orders should be the sam e as the rule f o r judgm ents because a n order that has been signed b ut has n ot been entered and m ade a m atter of public record cannot b e binding on the p arties. It takes the p ositio n that, as a potential def endant, it w as entitled to notice of the order which concerned additional t im e t o serve

nam ed def

endants. 4 ¶22. Rule 54 d ef

ines “judgm ent” as “.

. . a f inal decree a nd any order f rom which an appeal l i e s . ” M.R.C.P. 54. This rule does not apply t o the orders granting Ham let’s m otions f or tim e, f or those orders were not directly appealable. Judgm ents are m a rkedly distinguishable f rom interl o c u t o r y o rders. Judgm ents im pact m ore than the r ights of the p arties. The entry and f iling of a judgm e nt is n ecessary to give third parties, s u ch as creditors, lien holders, and other interested third parties, notice of the judgm ent in order to p rotect their r ights. An

4 A s d iscu s s e d s u

p r a , G r acelan d w o u ld n o t h av e b een n o tif ied b y th e clerk ev en if H a m let h ad p r o m

p tly f iled th e o r d er. F u rth er, G racelan d w a s n o t p rej u d iced h ere as H am let sen t G racelan d a n o tice-o f -in ten t letter u n d er S ectio n 1 5 -1 -3 6

.

1 0interlocutory order, with lim ited exceptions, im pacts only the parties. In the present case, at the t im e the f

irst order allowing additional tim e was granted by the trial court, the only party

was the plaintif

f , Ham let. Although this is an i ssue of f irst im pression, we are able to look to other courts f

or guidance on this issue.
B. Other Courts ¶23. Overwhelm i ngly , our sister states that h a v e discussed the issue have f ound that an interlocutory o rder is ef

f ective u pon entry by t h e clerk on the court’s d ocket. 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 m

ust see that orders are entered o n time ; me r e l y o btaining a signature o n an or d er is not s uf f icient to extend the tim e. Counsel m ust anticipate problem s of tim e and be prepared to do all acts necessary . . . and it is n o excuse or good caus e t h a t a judge, clerk, or reporter

. . . f ails to f ile an o r d e r on tim e. It is n ot o f ten the c a se an of

f icial r ef uses to perf

o rm a d u t y ; invariably in s u ch cases counsel expects the of f icials to d o the work of counsel. In this case it was the l awy er’s duty to see that the order was entered, not the judge’s. Finley , 281 Ark. at 39, 661 S.W

. 2d at 3 58–59 (citations om itted). In Bowm an v . Richland
Mem orial Hospital , 335 S.C. 8 8 , 515 S.E.2d 259 (S.C. Ct. App. 1999), that Court held that “[ a]n o r d e r i s not f

inal until it is written and entered by the c l erk o f court.” Bowm an , 335 S.C. at 91, 515 S.E.2d at 260 (citing First U nion Nat’l Bank of South Carolina v. Hitm an, Inc. , 306 S.C. 3 2 7, 411 S.E.2d 6 81 (S.C. Ct. App.1991), aff’d , 308 S.C. 4 21, 418 S.E.2d 545 (1992)). “Until an order i s written and enter e d b y t h e c l e rk of court, the j udge retains
1 1discretion to change his m i nd a nd am end his ruling accordingly .” B owm an , 3 35 S.C. at 91,

515 S.E.2d at 260. That Court f ound that its: holding [ was] m andated by principles of f airness and equity

. The parties to an action are n o t provided w ith notice of a judge’s ruling at the tim e the judge signs an o rder. Rather, only af ter the order is f

i led with the clerk o f court are the parties given notice of the order and provided with an opportunity to com ply with the order.
Bowm an , 335 S.C. at 92, 515 S.E.2d at 261. ¶24. Num erous other state courts have sim i larly h eld. See also I n 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. Codif ied Laws § 15-6-58 (W est 2017)) (“An order ‘becom es

com plete and ef

f ective when reduced to writing, signed by the c o urt or j udge, attested by the clerk, a nd f

iled in the clerk’s of

f ice.’”); Sim

pson v . Sim pson , 377 S.C. 519, 525, 660 S.E.2d 274, 277-78 (S.C. Ct. App. 2008); Hill v. State , 281 Ga. 7 95, 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 Ce nt. R. Co. , 217 S.W .3d 881, 883 (Ky

. Ct. App. 2007) (“Under ty pical circum stances, when a trial judge signs an order or judgm e nt i t has no ef f ect until i t is entered into the record by the clerk.”); R ollins v. Rollins , 903 So. 2d 8 28, 8 33 (Ala. Civ. App. 2004); Foley v. Fitzpatrick C

ontainer Co. , 267 A.D. 2 d 637, 6 38, 699 N.Y.S.2d 598, 599 (1999) (“[ A]n order is ef

f ective on the date of entry thereof and not on the date a decision is signed.

. . .”); S tate 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

1 258 (W est 2017)); Matter of S cheib Trust , 457 N.W

. 2d 4, 1 0 (Iowa C t. App. 1990); Rust v. Clark C ty. Sch. D ist. , 103 Nev. 686, 689, 747 P.2d 1 380, 1382 (1987); Dalton v. Dalton , 412 So. 2d 928, 929 (Fla. Dist. Ct. App. 1982) (“An order does not take ef f ect until signed and f iled.

. . .”); Lam b v. S uperior 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 b y the clerk of the court, it is not ef

f ective.”); City of Darien v. D ublinski , 16 Ill. App. 3d 140, 144, 304 N.E.2d 769, 773 ( 1973); In re Mont a n o ’ s E s t a t e , 38 N.M. 355, 33 P.2d 906, 9 07 (1934); Giroux v. Bockler , 98 O r. 398, 417, 194 P. 178, 184 (1921); M assachusetts Mut. Life Ins. Co. v. Taylor Im

plem ent & V

ehicle Co. , 138 Tenn. 28, 195 S.W . 762, 765 (1917). ¶25. At least three states have h eld to the contrary

. S ee Andrews v. Param ount Parks, Inc. , 48 Va. Cir. 232 (1999) (“An order is ef f ective as of the d ate i t is signed b y 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 e ntered and e f f ective when it i s signed by the judge; f iling of the order by the clerk is not a prerequisite.”); Cuoio v. Koseris , 68 Idaho 483, 485, 200 P.2d 359, 3 6 0 (1948) (“A m em orandum decision is not ef f ective as an order u ntil signed by t h e t r i a l judge or entered in the m inutes.”) (em phasis added).
C. Mississippi’s New Rule ¶26. Given the v ast m ajority of cases and the logic attached to those rulings, we hold that orders a re ef

f ective u p o n f

i l i n g . Such a rule will “secure the just, speedy , and inexpensive determ ination of every action.” M.R.C.P. 1. A party should be responsible f or t im ely f

iling

1 3a m otion, ensuring that the judge rules on the m otion, and m a k ing certain that the resulting

order is tim ely

f i led with the clerk. 5 ¶27. However, w e f

ind an im portant distinction between e x parte orders and interlocutory orders in general. T he sam e reasoning applied in the above-cited c ases, which involved

m ultiple parties, does not apply here. I n this case, the only pertinent party to the m otion and order was Ham let. On February 13, 2015, when Ham let f iled her Motion to Extend Tim e to Serve Process, G racelan d w o u ld not have been noticed had the order been f iled because it

was not y e t a p arty to the action. Thus, the order w as m e aningless to any one but the plaintif f and her counsel. 6 A delay in docketing the order does not a f f ect the trial court’s decision to

5 It should be noted that a Rule 6 ( b ) mo t i o n that i s tim ely f iled within the 120-day period under Rule 4(h) tolls the 120-day period until the trial court either grants or denies the m otion. Rule 6(b) states: “the court f or cause shown m ay a t any tim e i n i t s d i s c r e t i on . . . order the period enlarged i f r equest theref ore is m ade bef

o r e the expiration of the period originally proscribed.” (Em phasis added.) A lso , “[ a] trial co u rt h a s th e au th o rity an d in d eed a d u ty to m ain t ain co n tro l o f th e d o ck et an d en su re th e ef f icien t d isp o sal o f co u rt b u sin ess.” V en to n v. B eck h a m , 8 4 5 S o . 2 d 6 7 6 , 6 8 4 (M iss. 2 0 0 3 ); see a l so M o o re v. B a iley , 4 6 S o . 3 d 3 7 5 , 3 8 0

– 8 1 (M iss. C t

. A p p . 2 0 1 0 ). With in th is d u ty , a trial co u rt c o n tro ls th e d ates th at are av ailab le to a p arty

. A p art y c a n f i l e a mo tio n w ith in a d ead l in e— an d as lo n g as th e p arty d o es so th e m o tio n is tim ely , b u t a p a r ty can n o t c o n tro l th e p a rticu lar d ay o n w h ich th e trial co u rt w ill h ear th e m o tio n . T h i s s i t u a t io n is sim ilar to th e th irty -d ay p erio d f o r an ap p eal n o t ru n n i n g u n til en try o f th e trial co u rt’s o rd er d isp o sin g o f o u t stan d in g p o st-trial m o tio n s. S

ee M .R .A .P

. 4 (d ) (“If an y p arty f iles a tim ely m o tio n . . . th e tim e f o r ap p eal f

o r all p arties ru n s f

ro m th e en try o f th e o rd er d i sp o sin g o f th e last su ch m o tio n o u tstan d in g .”).

6 This is especially the case here, i n a m edical-m a l practice suit, because Graceland was put on notice of the suit when Ham let served her notice

- o f

- i n t ent letter on G raceland pursuant to Mississippi C ode Section 15-1-36. Def endants involved i n suits w h ich require notice prior to f

iling the com

plaint are at an advantage as to notice a nd are aware of potential suits m ore than a traditional def endant. Thus, Graceland c annot claim s urprise or prejudice regarding the present suit. 1 4grant a n extension o f tim e to service process. Ham let, as the only party to the action, should

not be punished f

o r not im m ediately f

iling the o r d e r . Ham let tim ely obtained an extension

to s erve p rocess and tim ely served process w ithin that e xtension. Theref o re, the statu t e of lim itations rem ained tolled. Because Ham let was the only party to the action, the trial judge’s order granting her m otion f or extension of tim e to serve process b ecam e ef f e c tive once the order had been signed and had lef t the trial judge’s control. ¶28. Theref

ore, in c ases involving ex parte m otions, such as the present c ase, w e f ind that the order becom es e f

f ective upon le a v i n g t h e j udge’s control. Ex parte orders, though, are still required to be f

i led prom ptly into the record. However, in cases in which m ore than one party is involved and notice b ecom es essential, we f ind that an order becom es ef f e c tive once it is entered of

f i cially into the record by

the court clerk. ¶29. Of course, there a re also certain other o rders to wh i c h t h i s g e n e ral r ule would not apply

. For i nstance, tem porary restraini n g o r d e r s a nd other em ergency orders (such as dom estic protection orders) are e f f e ctive bef

o re f iling w ith a clerk. S

ee M.R.C.P. 65(b) (“[ T]em porary restraining order

. . . shall be f iled f orthwith in the clerk’s of

f i ce and entered of record”). In a ddition, certain rulings of a trial judge that r eq u ire im m ediate action, such as those under a judge’s contem pt powers, would not be subject to the general rule. ¶30. This rule in n o w ay lim its the ability of the t r i a l judge, where o therwise allowed by law, t o enter an order n u nc pro tunc , m ake an order retroacti v e or have it relate back f or

1 5enf

orcem ent purposes. The purpose of this rule is to ef f e c t u a t e n o t i ce to the parties and establish som e f

inality as relates to the running of deadlines.
D. Scafidi ¶31. W e see no need to overrule or distinguish Scafidi as Graceland asks this Court to do in its a l ternative argum e nt. Ham let tim ely f iled her f irst m otion f

or an extension and obtained

a s igned order b e f

ore the statute of lim itations ran in this case. 7 W hile S cafidi did not involve

a s tatute-of

-lim itations issue, w e f

ind that its h olding applies here. Our rules a n d c a s e l aw hold that a court, i n its discretion, f or cause shown, m ay enlarge the tim e period f o r service of process under Rule 4 ( h ) p rior to the expiration of the initial 120-day period. M.R.C.P. 6(b); Scafidi , 911 So. 2d at 960-61. There i s no requirem ent f or “good cause shown” when the m otion f

or extension is tim ely

f iled. ¶32. Further, we will not entertain Graceland’s argum e nts on a ppeal that Ham let f

ailed to show cause or good cause. This court ha[ s] been consistent in holding that we need not consider m atters raised f or the f irst t im e on a

ppeal, which prac t i c e would have the practical ef f ect of depriving the trial court of the opportunity to f irst r ule on the issue, so that we

7 We also rej ect G racelan d ’s arg u m e n t th at H am l et w as req u ired to sh o w g o o d cau se o n ce s h e h a d f

a i l e d t o o b tain an o rd er w ith in th e o rig in a l 1 2 0 -d ay p erio d

. We h av e reco g n i zed b ef

o re th a t a p arty n e ed o n ly sh o w c a u s e u n d e r R u le 6 (b ) f

o r an e x t en sio n b ased o n a m o tio n th at is tim ely f iled w ith in R u l e 4 (h )’s 1 2 0

- d ay p erio d

— ev en w h ere th e m o tio n is g ran ted a f

t e r th e ex p iratio n o f th e 1 2 0 -d ay p erio d

. S ee J o h n s o n v. T

h o m a s ex rel. P o la tsid is , 9 8 2 S o . 2 d 4 0 5 , 4 1 3 (M iss. 2 0 0 8 ) (af f i rm in g g ran t o f ex ten sio n f o r cau se o n th e 1 2 3 d d a y ), o verru led o n o th er g ro u n d s b y F u lg h a m v . J a ck so n , N o . 2 0 1 6 -IA -0 0 5 7 0 -S C T , 2 0 1 7 WL 2 6 9 2 9 3 3 , at * 3 (M i ss. Ju n e 2 2 , 2 0 1 7 ). 1 6c a n then review such trial court ruling under the appropriate standard o f

review. Alexander v. Daniel , 904 So. 2d 172, 183 (Miss. 2005). It is clear f rom the record that Graceland’s counsel f

ram ed the issue bef

ore the trial court a s a l egal question concerning the application o f t h e statute of lim itations. The argum ent in the m otion to dism iss r ecognizes that good cause is not at i ssue under our holding i n Scafidi

. I n addition, when a sked by the trial court, Graceland’s counsel responded that it would be c orrect to c haracterize the issue in the m otion to dism iss as a statute-of

- l im itations issue. H e f

urther argued that “[ t]his is an issue of statute of lim i tations.” Also, neither party corrected the trial court when it s tated that “good cause shown is not an issue.” T hus, it is c l ear that the trial court did not rule on t he issue of Ham let’s cause or good cause; as such, there is no f a c tual f inding f o r us to review under an abuse-of

-discretion standard. See id

. ; C ollins v . Westbrook , 184 S o. 3d 922, 929 (Miss. 2 016 ) ( r e v iewing a trial court’s good-cause determ ination under an abuse-of

discretion standard). ¶33. W e see no reason to overrule or distinguish Scafidi a s Gra c e l a n d a s k s u s. Scafidi

rem ains good law today

. CONCLUSION ¶34. We f

i n d that, in g eneral, interlocutory o rders are e f f ective upon entry of the ord e r . However, because the instant case involved an ex parte order, this Court f inds that the order becam e ef

f ective u p on leaving the judge’s possession. Theref ore, we af f irm the trial court’s denial of Graceland’s m otion to dism iss.
1 7¶35. AFFIRMED AND REMANDED.

KIT CHENS, P.J., MAX WELL AND CHAMBERLIN, JJ., CONCUR. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN O P I NION JOINE D BY BEAM, J. WALLER, C.J., RANDOLPH, P.J., AND I S H E E , J . , NOT PARTICIPATING. COLEMAN, JUSTICE, DISSENTING: ¶36. The m ajority m i scasts the issue bef ore the Court today as one of f irst im pression. T o the contrary , it has long been the law in Mississippi that, in o rder f or orders and judgm ents
to be ef f ective, they m

ust b e entered or, as stated in o ur older cases, “appear on the m inutes of the court.” Evans v. State , 144 Miss. 1, 108 So. 725, 726 (1926). Accordingly , I m ust respectf ully dissent. ¶37. The Evans Court wrote, All the judgm ents and orders of the circuit courts can be evidenced alone by their m i nutes. It m akes no dif f erence how unim

portant a judgm ent of a circuit court m ay be considered, it is of n o validity or f orce whatever unless i t appear upon the m inutes of the court. The c o urt can act i n no other m anner so f ar as its judgm ents are concerned. The principle i s of universal application. There are no exceptions.

. . . There m ust be a perpetual m em orial of the judgm ents of circuit courts, n o t a l o n e of their f inal j udgm ents, but of a ll interlocutory judgments and orders af

f ecting the rights o f the parties, and that m em orial is the m inutes of the courts. There is no o ther place to go t o ascertain what those judgm ents are. Id. (em phasis added). “The rule in this State i s that every decree is i n the b reast of the court until entered , and a d e c r e e h as no validity until written out and signed b y the chancellor.” Orr v. Myers , 223 Miss. 856, 862, 79 So. 2d 277, 278 (1955) (em phasis added).

1 8¶38. The m ajority f ollows the law described a b o v e a s l o n g a s m ore than one party has appeared in a lawsuit, but would except cases in w h ich o nly the plaintif f has appeared. To reach i ts result, the m ajority engages in s om ething akin to no-harm , no-f oul reasoning. The

m ajority ’s reasoning is f

l awed and f

a ils to address other concerns. For exam ple, def ense attorney s, aware o f the f

iling o f a lawsuit aga i n s t their clients, can m onitor court f ilings to advise their clients and their insurers regarding the risks of the litigation. W h en the public record indicates t h a t the tim e f or service h as passed, the attorney and p otential def endant

m ake risk assessm ents and s trategic decisions accordingly

. To allow t h e m to be surprised b y c ondoning behavior that keeps orders of the c ourt secret cannot be considered f a i r . Today ’s holding a llows plaintif f s in civil liti gation and p arties in ex parte proceedings intentionally to pocket o rders to surprise other parties and the public f or strategic advantage.
I cannot c o ncur in such a result. Our courts should exercise their c onsiderable p owers in the f ull view of

the public ey e – not in secret. ¶39. Because the l aw has long b een that both orders and judgm e nts m ust be entered to be ef f ective, I would reverse the trial court’s decision and render judgm ent in f avo r of the def endants. BEAM, J., JOINS THIS OPINION.

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