Collins v. Westbrook

• Decision Date: 11 February 2016
• Docket Number: No. 2013–CT–00408–SCT.,2013–CT–00408–SCT.
• Citation: 184 So.3d 922
• 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. v. Toikus WESTBROOK, M.D.
• Court: Mississippi Supreme Court

184 So.3d 922

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.

v.Toikus WESTBROOK, M.D.

No. 2013–CT–00408–SCT.

Supreme Court of Mississippi.

Feb. 11, 2016.

Shane F. Langston, Rebecca M. Langston, attorneys for appellant.

John Michael Coleman, L. Carl Hagwood, attorneys for appellee.

EN BANC.

ON WRIT OF CERTIORARI

KITCHENS, Justice, for the Court:

¶ 1. Perriece Collins filed a wrongful death action on behalf of her minor daughter, Shoniqwa, and on behalf of the wrongful death beneficiaries of Shoniqwa's stillborn daughter, Shataja. Finding that Collins had not shown good cause for her failure to effect service of process upon Dr. Toikus Westbrook, the Circuit Court of Leake County granted Dr. Westbrook's motion to dismiss. Collins appealed, and this Court assigned her case to the Court of Appeals, which affirmed the decision of the trial court. Collins then filed a Petition for Writ of Certiorari, which this Court granted.

¶ 2. We hold that Collins offered uncontradicted proof of "good cause" in explanation of her failure to serve process upon Dr. Toikus Westbrook within 120 days of having filed a civil complaint as required by Rule 4(h) of the Mississippi Rules of Civil Procedure. Collins also established "excusable neglect," as contemplated by Rule 6(b) of the Mississippi Rules of Civil Procedure, entitling her to an extension of time in which to serve process upon Dr. Toikus Westbrook. Therefore, we reverse the judgments of the trial court and the Court of Appeals and remand this case to the Circuit Court of Leake County for further proceedings.

FACTS

¶ 3. On December 16, 2011, Collins filed a complaint in the Circuit Court of Leake County on behalf of her minor daughter, Shoniqwa Collins, and the other wrongful death beneficiaries of Shataja Nikeara Collins, a stillborn infant. The complaint named Dr. Toikus Westbrook, a physician, and others as defendants and alleged that Dr. Toikus Westbrook's negligence, including his failure to intervene under circumstances which clearly indicated fetal distress, wrongfully caused the death of the infant. Thus, under the provisions of Rule 4(h), Collins had 120 days, or until April 14, 2012, to serve the complaint and summons on all of the named defendants, including Dr. Toikus Westbrook. M.R.C.P. 4(h).

¶ 4. Shane Langston, Collins's lead attorney, delegated the responsibility of having process served on Dr. Toikus Westbrook to his longtime legal assistant. However, during the 120–day period allowed for service upon this defendant, the legal assistant experienced "very extreme personal problems." A few days before the deadline, Langston realized that the legal assistant had failed to effect service of process on the defendants.

¶ 5. On April 11, 2012, Langston hired Quantum Process, a professional process-serving company in Hattiesburg, Mississippi, to serve Dr. Toikus Westbrook. Robert David "Davy" Keith II, Quantum Process's owner, using a technique called a "skip trace," attempted to find an address for Toikus Westbrook. The skip trace results listed two possible addresses for that person: one in New Orleans, Louisiana, and the other in Germantown, Tennessee.¹

¶ 6. On April 13, 2012, Keith telephoned the residential telephone number at a location that matched the address associated with Dr. Toikus Westbrook in Germantown, Tennessee. According to Keith, he left a message on the answering machine for Dr. Toikus Westbrook. Someone, using the Germantown, Tennessee, residential telephone number, returned Keith's call. Keith explained to the caller that he had a delivery for Dr. Toikus Westbrook. At first, the caller told Keith, "he's not available." Keith told the caller that he had a delivery from "Maxim Physicians," Dr. Toikus Westbrook's employer. The person on the telephone then said: "Oh, that's me. You can bring that to me," claiming that he was on his way to Incredible Pizza, a pizzeria in Germantown. He asked whether Keith could meet him there. Keith arranged for Gary Murphree, a process server in Memphis, Tennessee, to meet Dr. Toikus Westbrook at Incredible Pizza in nearby Germantown.

¶ 7. According to Murphree, he arrived at Incredible Pizza and asked restaurant personnel to page Toikus Westbrook. An employee then escorted Murphree to a back room where a man was sitting. When Murphree asked the man whether he was Toikus Westbrook, the man said "yes," and Murphree, who had hidden the summons and complaint in a pizza box, opened the box, removed the papers, and handed the man the papers. Murphree informed the man: "You have now been served." Murphree executed an Affidavit of Service, in which he stated that he had served the summons and the complaint on Toikus Westbrook on April 13, 2012.

¶ 8. On May 7, 2012, Dr. Toikus Westbrook filed a motion to dismiss, arguing that his father, Dr. Jesse Westbrook, actually had been served and that the complaint should be dismissed because of insufficient service of process. On May 21, 2012, Dr. Toikus Westbrook filed the affidavit of Dr. Jesse Westbrook in support of the motion to dismiss, which had been signed on May 7, 2012. In this affidavit, Dr. Jesse Westbrook averred:

That he is an adult resident citizen of Germantown, Tennessee, over the age of eighteen years and legally competent to give this affidavit.

That he is a dentist practicing in Memphis, Tennessee.

That his home address is 1666 Newsum Drive, Germantown, Tennessee 38138.

That he was served with process in the above-referenced case on or about April 14, 2012.

That he has no personal knowledge of this case other than his son is named Toikus Westbrook, M.D.

That he was not practicing medicine on or about June 30, 2010, at Leake County Memorial Hospital.

¶ 9. On June 14, 2012, Dr. Jesse Westbrook executed a second affidavit, in which he stated:

That he is an adult resident citizen of Germantown, Tennessee, over the age of eighteen years and legally competent to give this affidavit.

That on or about April 16, 2012, he received a telephone call at his home from a man stating that he had some important documents regarding physician services for a "Dr. Westbrook."

Dr. Jesse Westbrook then identified himself as "Dr. Westbrook."

The man requested to meet Dr. Jesse Westbrook at his home; however, Dr. Westbrook informed the man that he and his family were headed to dinner at Incredible Pizza in Germantown, Tennessee.

While at Incredible Pizza, a man approached Dr. Westbrook with a pizza box and pulled out some documents.

The man handed the documents to Dr. Jesse Westbrook and said, "You have now been served."

The man immediately turned around and left Incredible Pizza.

Dr. Jesse Westbrook did not know the content of these papers until he read them as the process server was leaving.

In neither the telephone call nor the personal meeting did anyone confirm that Dr. Jesse Westbrook was anyone other than "Dr. Westbrook."

¶ 10. The trial court held the first hearing on Toikus Westbrook's motion to dismiss in June 2012. The hearing was not transcribed, but the uncontested affidavit of Jessica Murray, an attorney representing Collins at the hearing, stated that neither Dr. Jesse Westbrook nor Dr. Toikus Westbrook attended the hearing and no additional evidence was offered. The trial judge continued the hearing, informing counsel that he would like to consider witness testimony before making a decision about whether process had been served on Dr. Toikus Westbrook.

¶ 11. The second hearing on the motion to dismiss was held on October 31, 2012. Keith, the owner of Quantum Process, provided the following testimony:

LANGSTON: Mr. Keith, tell Your Honor what efforts you were asked to make on behalf of my law firm to serve process on Dr. Toikus Westbrook, in or around April of this year?

KEITH: Around April of this year, I was contacted by your law firm, Langston and Langston, to locate and serve process on a Toikus Westbrook. If I[re]call there were several—

THE COURT: Let's refer to them as junior and senior, so we'll be sure—or can we not?

LANGSTON: Your Honor, it's not junior and senior.

THE COURT: All right. What is it?

LANGSTON: The father is Jesse Westbrook and this gentleman is Toikus Westbrook. So there aren't two Toikuses, I'm sorry.

THE COURT: Dr. Jesse Westbrook is the father's name; is that right?

LANGSTON: Yes, sir. He's a dentist, so I understand.

THE COURT: All right.

KEITH: I was given, I believe, it was two addresses initially. One was in Picayune and one was in Carthage, if I'm not mistaken. We attempted to serve process on Dr. Toikus Westbrook at both of those locations. He was at neither address. I did further research in order to obtain a current address for Dr. Westbrook.

LANGSTON: What kind of research did you do?

KEITH: It's commonly referred to as a locator or a skip trace, and it's basically research, computer research that shows reported addresses of people that reside at a given address. It's based on—we call credit header information. And when I did a search by the name of Toikus Westbrook, using his past known addresses as a template or as a method to link a newer address, I discovered an address for him in Germantown, Tennessee. I obtained a phone number to the address in Germantown, Tennessee, and called. I believe I called and left a message for Dr. Toikus Westbrook. Someone called me back and ultimately identified himself as Dr. Toikus Westbrook. I advised him that I had a delivery for him. He said, you can—I'm going to be leaving my home address. You can have someone meet me at a pizza parlor—

LANGSTON: All right. Let me back up just a moment. In that conversation you had, this was a return call you got; is that correct?

KEITH: Yes, sir.

LANGSTON: And the return caller, when you answered the telephone, how did he identify himself?

KEITH: The conversation was had, and I told him that I had a delivery

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