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In re Holtzman8/15/2002
DATE OF JUDGMENT: 3/30/2001
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED - 08/15/2002
EN BANC.
. Rosemarie Holtzman (Holtzman) filed suit in the Harrison County Circuit Court against the Grand Casino, alleging that she sustained injuries at the casino on May 1, 1997. She claimed that a casino employee knocked over a stool causing it to fall on her, and that as a result she fell and was injured. After her attorney failed to serve process in the lawsuit, Holtzman's suit was dismissed because the statute of limitations had run. Aggrieved, Holtzman asks this Court to reverse the trial court's denial of her motion to extend time for service of process and its dismissal of her suit.
FACTS
. Holtzman retained attorney Roderick Ward (Ward) to file suit against the Grand Casino, which he did on April 28, 2000, just two days before the applicable three-year statute of limitations would have run. The summons was duly issued by the Harrison County circuit clerk and returned to Ward for service by a private process server. However, the summons and the complaint were never served. On January 31, 2001, Holtzman filed for an extension of time to complete service. The trial court conducted a hearing on Holtzman's motion March 30, 2001, and denied her request for an extension of time. The trial court further found that, after allowing for the 120 days time in which to serve process, the statute of limitations finally ran in August 2000, and it dismissed Holtzman's complaint.
. At the hearing, Ward presented the following testimony in support of excusing his failure to complete service within 120 days:
The Court: . . . he complaint was filed on April 28. 120 days for service ran on August 26 of 2000, right?
Mr. Ward: That's the way we calculated it, yes, Your Honor.
The Court: And you filed your motion for extension in January.
Mr. Ward: Yes, Your Honor.
The Court: Some five months thereabouts later. How was it discovered? Was Ms. Holtzman staying in touch with your firm regarding the status of her case?
Mr. Ward: Periodically, Your Honor. The way that it was discovered, and I was not totally prepared for this, but I can tell you how I think it was discovered. My paralegal does a review of all cases every few months or so, six months or so, and that would have been-I know I do remember him for not only this type of situation but for a statute of limitations purposes, and I know he was doing a statute of limitations review at the beginning of the year, and that's how I think he would have caught this.
The Court: It appears you would have also been anticipating an answer from the defendants which was not forthcoming for obvious reasons.
Mr. Ward: Yes, Your Honor. In my office's defense, Your Honor, this process by which this has occurred has worked on many thousand cases that we have been involved in.
This is just one of those situations because of all the factors different involved it just unfortunately fell through the cracks and was misfiled.
. Ward more precisely delineated the source of the trouble as: " rom all indications, the new male file clerk that started this task of routing mail at the same time we were routing mail for these other matters apparently just filed the complaint and the summons away."
. Following the trial court's denial of the motion and dismissal of Holtzman's suit with prejudice, she timely filed a motion for reconsideration which was denied by the trial court on April 17, 2001. Holtzman timely filed a notice of appeal to th
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