Johnson v. Rao

• Decision Date: 22 March 2007
• Docket Number: No. 2005-CA-02178-SCT.,2005-CA-02178-SCT.
• Citation: 952 So.2d 151
• Parties: Irma Cohen JOHNSON v. Gutti RAO, M.D.
• Court: Mississippi Supreme Court

952 So.2d 151

Irma Cohen JOHNSON v. Gutti RAO, M.D.

No. 2005-CA-02178-SCT.

Supreme Court of Mississippi.

March 22, 2007.

Wendy Schenique Wilson, and Willie T. Abston, Jackson, attorneys for appellant.

Clinton M. Guenther, Greenwood, attorney for appellee.

EN BANC.

EASLEY, Justice, for the Court.

FACTUAL AND PROCEDURAL HISTORY

¶ 1. On March 3, 2004, Irma Johnson (Johnson) filed a medical malpractice action against Grenada Lake Medical Center (Grenada Lake) and Dr. Gutti Rao (Dr. Rao), collectively, "the Defendants."¹ Johnson asserted that Dr. Rao, a doctor at the Grenada Lake Medical Center, negligently diagnosed and treated the injury she suffered to her left foot after falling at her home. Grenada Lake filed a motion to dismiss because of the Johnson's failure to comply with Miss.Code Ann. § 11-46-11 (Rev.2002).² Dr. Rao also filed a motion to dismiss because of Johnson's failure to give notice pursuant to Miss.Code Ann. § 15-1-36 (Rev.2003).³ The trial court granted the Defendants's motions to dismiss and dismissed the case without prejudice.

¶ 2. On December 24, 2004, Johnson filed suit again against Dr. Rao.⁴ On April 7, 2005, Deputy Sheriff James Payne (Deputy Payne) delivered a copy of the complaint and summons to Dr. Rao's office. Although much controversy exists regarding the events surrounding Deputy Payne's delivery of the summons and complaint, it is undisputed that he served process upon Dr. Rao's receptionist, Melissa Powell.

¶ 3. Dr. Rao filed a motion to dismiss alleging insufficient service of process and failure to comply with the requirements of Miss.Code Ann. § 11-1-58 (Rev.2002). The trial court never addressed Dr. Rao's second assignment of error that Johnson failed to comply with Miss.Code Ann. § 11-1-58; however, on appeal, Dr. Rao reasserts his second assignment of error. The trial court ordered a hearing to consider whether Powell was Dr. Rao's agent, and thus authorized to accept service of process on his behalf. Powell was the only person who testified at the hearing, but Deputy Payne's affidavit was made a part of the record.

¶ 4. Powell testified that she did not understand what was taking place when Deputy Payne effectuated service of process upon her on behalf of Dr. Rao. Powell testified that she had never personally accepted service of process, nor had she accepted service of process on behalf of someone else. She also testified that her job duties consisted of "answering the phones, checking patients in, filing, and what ever else [that] needed to be done." Additionally, she testified that she "accept[s] stuff all the time."

¶ 5. According to Powell, on the day in question, Deputy Payne entered the doctor's office wearing his uniform. She testified further that Deputy Payne said he had some papers for Dr. Rao, but he did not inform her that the papers were related to a legal matter, nor did he ask to see the doctor, or identify himself. Powell asserts that Deputy Payne told her to sign the papers, so that he would have a record of who received them. She signed, but she testified that she did not read anything on the papers.

¶ 6. Deputy Payne stated in his affidavit that he identified himself to Powell upon entering the office. After identifying himself, he then requested to see Dr. Rao to serve him with the legal papers. Deputy Payne also asserts that Powell responded by saying that Dr. Rao was with a patient and unavailable, but she could sign for the papers and give them to Dr. Rao later. It is undisputed that Dr. Rao received the summons and complaint from Powell.

¶ 7. After hearing Powell's testimony and reading Deputy Payne's affidavit, the trial court concluded that Dr. Rao did not appoint Powell as an authorized agent to accept service of process on his behalf. Therefore, the trial court concluded that service of process was insufficient. Because the statute of limitations had subsequently expired, the trial court dismissed the case with prejudice.

¶ 8. Johnson now appeals to this Court, raising the issue of whether Deputy Payne's delivery of the summons and complaint to Powell on behalf of Dr. Rao was sufficient service of process pursuant to M.R.C.P. 4. Dr. Rao contends that if this Court finds the service of process sufficient pursuant to M.R.C.P. 4, then the trial court's judgment to dismiss should be affirmed due to Johnson's failure to comply with Miss.Code Ann. § 11-1-58.⁵

ANALYSIS

I. Service of Process

¶ 9. This Court reviews de novo a trial court's grant or denial of a motion to dismiss. Harris v. Miss. Valley State Univ., 873 So.2d 970, 988 (Miss.2004). However, "[w]hen reviewing fact-based findings, we will only examine whether the trial court abused its discretion and whether there was substantial evidence supporting the determination." Triple "C" Transp., Inc. v. Dickens, 870 So.2d 1195, 1197-98 (Miss.2004) (quoting Holmes v. Coast Transit Auth., 815 So.2d 1183, 1185 (Miss.2002) ("A trial court's finding of fact on the existence of good cause for the delay in service of process has been deemed `a discretionary ruling . . . and entitled to deferential review' on appeal.")).

¶ 10. Johnson raises as her sole issue on appeal, whether the trial court erred in finding that Dr. Rao was not properly served process pursuant to M.R.C.P. 4. Specifically, Johnson asserts that Dr. Rao was properly served by Deputy Payne's leaving the summons and complaint with Dr. Rao's receptionist, Powell. Johnson contends that Powell was acting as Dr. Rao's agent to accept service of process on his behalf. This assertion, as the trial court concluded and ruled, is neither supported by the facts nor the law.

¶ 11. This Court has defined the word agent, "[to] include only agents vested with some general authority and discretion, and not to extend to mere employees having no independent powers." Saxony Mills v. Wagner & Co., 94 Miss. 233, 239, 47 So. 899, 901 (1908) (citations omitted). Only employees with some authority are classified as agents authorized to accept service of process on behalf of an employer. Id.

¶ 12. In McPherson v. McLendon, 221 So.2d 75, 77-78 (Miss.1969), this Court reversed the circuit court's grant of directed verdict where the acts on the part of the insurance company were sufficient for the jury to find that the insurance company had clothed Christine McLendon with the apparent authority to contract on their behalf and the plaintiffs had detrimentally relied on the insurance company's actions. However, relevant to our review, the Court examined the general laws of agency and stated:

A general statement of the rule governing apparent authority is found in Steen v. Andrews, 223 Miss. 694, 78 So.2d 881 (1955), recently cited with approval in Union Compress & Warehouse Co. v. Mabus, 217 So.2d 23 (Miss.1968)[:]

The power of an agent to bind his principal is not limited to the authority actually conferred upon the agent, but the principal is bound if the conduct of the principal is such that persons of reasonable prudence, ordinarily familiar with business practices, dealing with the agent might rightfully believe the agent to have the power he assumes to have. The agent's authority as to those with whom he deals is what it reasonably appears to be. So far as third persons are concerned, the apparent powers of an agent are his real powers. 2 C.J.S. Agency, §§ 95, 96. This rule is based upon the doctrine of estoppel. A principal, having clothed his agent with the semblance of authority, will not be permitted, after others have been led to act in reliance of the appearances thus produced, to deny, to the prejudice of such others, what he has theretofore tacitly affirmed as to the agent's powers. 2 C.J.S., Agency, § 96(c). There are three essential elements to apparent authority: (1) Acts or conduct of the principal; (2) reliance thereon by a third person, and (3) a change of position by the third person to his detriment. All must concur to create such authority. 2 C.J.S., Agency, § 96(e). (223 Miss. at 697, 698, 78 So.2d at 883).

McPherson, 221 So.2d at 78.

¶ 13. In Williams v. Kilgore, 618 So.2d 51, 56 (Miss.1992), this Court addressed whether service of process on the office manager, Roy Cliburn, was service of process on Dr. Thomas Kilgore's agent, Cliburn; and whether that service of process on Cliburn was sufficient to constitute service of process on Dr. Kilgore in accordance with M.R.C.P. 4(d)(1)(A). M.R.C.P. 4(d)(1)(A) provides:

The summons and complaint shall be served together. Service by sheriff or process server shall be made as follows:

(1) Upon an individual other than an unmarried infant or a mentally incompetent person,

(A) by delivering a copy of the summons and of the complaint to him personally or to an agent authorized by appointment or by law to receive service of process;

(Emphasis added).

¶ 14. Therefore, we must examine each case to determine whether the person was authorized as an agent for purposes of accepting service of process. In Williams, 618 So.2d at 56, the Court specifically examined the facts to determine if the office manager was authorized as an agent to accept service of process in order to decide whether proper service of process occurred, stating:

The summons and complaint were left with Dr. Kilgore's office manager, Roy Cliburn. Both Cliburn and Dr. Kilgore stated in their affidavits that Cliburn was not authorized by Dr. Kilgore as his agent to accept service of process. Yet Deputy Sheriff Usry testified that on many occasions Cliburn had accepted service on behalf of Dr. Kilgore and the other doctors in his office and that he had never been instructed to the contrary on this or any other occasion. We find nothing in our case law which precludes the acceptance of service of process by an agent such as an office manager, who, by custom and practice, is vested with apparent authority to do so. Relying to his detriment on his past experiences in serving process on physicians in Dr. Kilgore's...