Collins v. Westbrook
| Decision Date | 02 December 2014 |
| Docket Number | No. 2013–CA–00408–COA.,2013–CA–00408–COA. |
| Citation | 188 So.3d 1206 |
| Court | Mississippi Court of Appeals |
| Parties | Perriece COLLINS, Individually and as the Parent, Legal Guardian and Next Friend of Shoniqwa Collins, Individually and as the Parent, Legal Guardian and On Behalf of Any and All Wrongful Death Beneficiaries of Shataja Nikeara Collins, Deceased, Appellants. v. Toikus WESTBROOK, M.D., Appellee. |
Shane F. Langston, Rebecca M. Langston, Jessica E. Murray, Jackson, attorneys for appellants.
L. Carl Hagwood, J. Michael Coleman, Jackson, attorneys for appellee.
EN BANC.
BARNES, J., for the Court:
¶ 1. Perriece Collins, the parent and legal guardian and of Shoniqwa Collins, and on behalf of the wrongful-death beneficiaries of Shataja Nikeara Collins, filed suit in Leake County Circuit Court against Dr. Toikus Westbrook (Dr. Toikus), among others,1 for negligence in the delivery of Shoniqwa's stillborn baby, Shataja. Dr. Toikus filed a motion to dismiss, claiming insufficient service of process, because the person served with the complaint was his father, Dr. Jesse Westbrook (Dr. Jesse), a dentist in Germantown, Tennessee, who was not authorized to accept service for his son. The trial court agreed, finding the 120–day deadline to serve process had expired, and Plaintiffs had shown no good cause or excusable neglect as to why process had not been timely served. While this Court may not have made the same decision as the trial court, we cannot say the trial court abused its discretion. Accordingly, we affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶ 2. On December 16, 2011, Plaintiffs filed their complaint of a wrongful-death claim due to medical malpractice against Defendants. The complaint alleged that on June 30, 2010, nineteen-year-old Shoniqwa was admitted to the Leake County Memorial Hospital emergency room under the care of its staff and Dr. Toikus, complaining of bloody discharge. Shoniqwa was approximately thirty-six weeks pregnant. Plaintiffs claimed that in spite of signs of fetal distress, neither the physician nor his nurse made any attempt to intervene or deliver the infant, and she was ultimately delivered stillborn.
¶ 3. Counsel for Plaintiffs, Langston & Langston PLLC (Langston), explained that it delegated the responsibility of serving process on Defendants to its former long-time legal assistant. However, as the legal assistant was experiencing "very extreme personal problems during this period of time," lead counsel Shane Langston discovered only a few days before the expiration of the 120–day deadline, as provided by Mississippi Rule of Civil Procedure 4(h), that there had been no process served on Defendants. The trial court docket indicates that summonses for Dr. Toikus and the other defendants were not even issued until April 13, 2012, one day prior to the April 14, 2012 deadline.
¶ 4. On April 11, 2012, Langston hired Quantum Process, a professional process-serving company in Hattiesburg, Mississippi, to serve Defendants. Langston told Quantum Process's manager, Davy Keith, that process had to be served on Dr. Toikus on or before April 14, 2012, which was a Saturday. On April 12, 2012, at 2:55 p.m., attorney Jack Hunt, an associate at Langston, emailed Keith the notice of summons. On Friday, April 13, 2012, at 2:06 p.m., Hunt asked if Keith had "any luck so far?" At 3:23 p.m., Keith emailed Hunt and updated him on the difficulties of finding Dr. Toikus, stating "the chances of locating and serving [Dr. Toikus] today are very slim." Keith detailed that a LexisNexis search for "Toikus Westbrook" resulted in several possible addresses for him in New Orleans, Louisiana, and Germantown, Tennessee. However, eighteen minutes later, Keith sent an email stating, A confirmation email was then sent back from Hunt to Keith at 3:52 p.m., stating "everything is in motion."
¶ 5. Soon after sending this email, Keith testified he called a residential telephone number at a location that matched Dr. Toikus's last known address in Germantown, and left a message for "Dr. Toikus Westbrook." Someone called Keith back from the number, and Keith explained he had a delivery for "Dr. Toikus Westbrook." Initially, the person responded, "he's not available." Keith then admittedly employed a technique used in his profession called a "pretext," and misrepresented to the caller that he had a delivery from "Maxim Physicians," Dr. Toikus's employer. Keith claims the person on the phone then said: The person was on his way to Incredible Pizza in Germantown, and asked if he could meet Keith there. Keith then arranged for Gary Murphree, a process server in Memphis, Tennessee, to meet the alleged Dr. Toikus Westbrook at Incredible Pizza in Germantown.
¶ 6. On Friday, April 13, Murphree arrived at Incredible Pizza and asked that the restaurant page "Toikus Westbrook."2 An employee then escorted Murphree to a back room where a gentleman was sitting. Murphree testified when asked if he was "Toikus Westbrook," the man said "yes," and Murphree, who had the papers in a box, opened it and handed him the summons and complaint.3 At this point, Plaintiffs claimed they believed all of Defendants had been timely served by the April 14 120–day deadline, including Dr. Toikus.
¶ 7. On May 7, 2012, Dr. Toikus filed a motion to dismiss, claiming Dr. Jesse Westbrook, Dr. Toikus's father, had been served in Germantown instead of him, and therefore the complaint should be dismissed due to insufficient service of process. On May 21, 2012, an affidavit in support of the motion to dismiss, executed by Dr. Jesse on May 7, was filed with the trial court. Dr. Jesse's affidavit stated that he was a dentist, that he was served with process on April 13, and that he had no knowledge of this case. It also gave his home address in Germantown.
¶ 8. In June 2012, Plaintiffs filed a response in opposition to the motion, attaching supporting affidavits from Keith and Murphree. Keith's affidavit explained how he ran a LexisNexis search to find several addresses and phone numbers for "Dr. Toikus Westbrook." Every telephone number for "Toikus Westbrook" was called, but only the caller at the Germantown phone number responded. When Keith told the caller he had a delivery for "Dr. Toikus Westbrook" from Maxim Physicians, the caller responded he was on his way to Incredible Pizza, and asked to be met there. Murphree's affidavit claimed he served who he believed was Dr. Toikus, and the person identified himself as "Dr. Toikus Westbrook" at the pizza place.
¶ 9. Dr. Toikus filed a reply to Plaintiffs' response to the motion to dismiss, and attached a second affidavit by Dr. Jesse, adding more details of the events of April 14. In it, Dr. Jesse acknowledged that he had "received a telephone call at his home from a man stating he had some important documents regarding physician services for a ‘Dr. Westbrook.’ " Dr. Jesse claimed he identified himself as "Dr. Westbrook," and told the caller he and his family were headed to dinner at Incredible Pizza. At the restaurant, a man approached him with a pizza box and pulled out some documents, handing them to Dr. Jesse and stating, "you have now been served."
¶ 10. The first hearing on the motion to dismiss was in June 2012. The hearing is not transcribed for the record, but the uncontested affidavit of Jessica Murray, counsel for Plaintiffs, stated that neither Dr. Jesse nor Dr. Toikus attended the hearing and no additional evidence was offered. The trial judge decided to continue the hearing, informing counsel that he would like to hear live testimony from the relevant witnesses.
¶ 11. At the second hearing on October 31, 2012, Plaintiffs called Keith and Murphree to testify, and attorney Shane Langston gave testimony about his firm's efforts to serve Dr. Toikus. The trial court granted Dr. Toikus's motion to file an affidavit, which he submitted to the court on November 26, 2012. In the affidavit, he merely stated that he was a resident of New Orleans, giving his address there, along with his father's address in Germantown, and stated he was never served with process.
¶ 12. On February 8, 2013, the trial court entered a judgment of dismissal in favor of Dr. Toikus.4 The court found Dr. Toikus had not been served within the 120–day period, and Plaintiffs had shown no "good cause" or "excusable neglect" to justify an enlargement of time to serve him.5 Plaintiffs (now Appellants) timely appealed.
STANDARD OF REVIEW
¶ 13. The appellate court reviews a trial court's grant or denial of a motion to dismiss de novo. Johnson v. Rao, 952 So.2d 151, 154 (¶ 9) (Miss.2007). However, the "trial court's finding of fact on the existence of good cause for the delay in service of process [is] ‘a discretionary ruling and entitled to deferential review’ on appeal." Triple "C" Transp., Inc. v. Dickens, 870 So.2d 1195, 1197 (¶ 15) (Miss.2004) (citation omitted). "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. at 1197–98 (¶ 15).
¶ 14. The trial court's determination of "whether there is good cause for failure to serve process is ‘a discretionary ruling on the part of the trial court and is entitled to deferential review of whether the trial court abused its discretion and whether there was substantial evidence supporting the determination.’ " Lewis Entm't, Inc. v. Brady, 142 So.3d 396, 398 (¶ 6) (Miss.2014) (quoting Rains v. Gardner, 731 So.2d 1192, 1197 (¶ 18) (Miss.1999) ). "To the degree that a trial judge's decision to grant or deny a motion for an extension of time is based upon precept of law, the standard for the [appellate court]'s review shall be ‘plenary’; otherwise, [the appellate court] shall simply apply the abuse-of-discretion standard." Rains, 731 So.2d at 1198 ...
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