Spurgeon v. Egger
| Decision Date | 11 December 2007 |
| Docket Number | No. 2005-CA-01952-COA.,2005-CA-01952-COA. |
| Parties | Hilda Patsy SPURGEON and Ottis Jerome Spurgeon, Appellants v. Edwin G. EGGER, Appellee. |
| Court | Mississippi Court of Appeals |
William R. Armstrong, Jackson, attorney for appellants.
Steven Cavitt Cookston, Clinton M. Guenther, Tommie G. Williams, Greenwood, attorneys for appellee.
Before MYERS, P.J., BARNES and ROBERTS, JJ.
ROBERTS, J., for the Court.
SUMMARY OF THE CASE
¶ 1. Hilda and Ottis Spurgeon sued Dr. Edwin Egger for medical malpractice. One hundred eleven days after the Spurgeons filed their complaint, a process server served Dr. Egger's medical assistant. The process server's return showed that he personally served Dr. Egger. Three days later, Dr. Egger's attorney sent the Spurgeons a letter and stated that Dr. Egger had notice of the lawsuit and that he planned to contest it. That letter also indicated that Dr. Egger was involved in bankruptcy proceedings.
¶ 2. Approximately three weeks later, Dr. Egger filed a motion to dismiss based on insufficient service of process. The circuit court found insufficient service of process and dismissed the Spurgeon's complaint. The Spurgeons appeal and claim that service of process was completed. Alternatively, the Spurgeons claim that if service of process was incomplete, the circuit court erred when it did not find excusable neglect for the Spurgeons' failure to serve Dr. Egger within the mandatory 120 day period for service. After careful consideration, we find that the circuit court erred when it did not find good cause for the Spurgeon's failure to serve Dr. Egger within the mandated time for service of process. Accordingly, we reverse the circuit court and remand this matter for a trial on the merits.
FACTS AND PROCEDURAL HISTORY
¶ 3. On April 24, 2002, Dr. Edwin Egger performed cataract surgery on Patsy Spurgeon. According to Patsy, during her surgery, she "experienced extreme pain in her eye" and she heard Dr. Egger say, "I've stuck a hole in her eye." Just four days short of the two-year statute of limitations, Patsy and her husband, Ottis Spurgeon, sued Dr. Egger in the Washington County Circuit Court for medical malpractice in performing her cataract surgery. The Spurgeons claimed that Patsy had "a dislocated intraocular lens implant and vitreous hemorrhage."
¶ 4. On August 10, 2004, a process server named Dennis Faust, served Dr. Egger's office assistant, Amanda Boozer, with a summons and complaint. Faust filled out a return and indicated that he personally served Dr. Egger with process. Three days later, Dr. Egger's attorney, Tommie Williams, sent a letter to William Armstrong, counsel for the Spurgeons. Within that letter, Williams stated:
Clint Guenther and I will be representing Dr. Egger in connection with Ms. Spurgeon's claim.
First, be advised that Dr. Egger is currently involved in a bankruptcy proceeding. Mr. Martin Kilpatrick of Greenville is representing the doctor in that proceeding. As soon as we can contact Mr. Kilpatrick and obtain a copy of the petition, we will file that with the clerk in Washington County invoking the automatic stay.
We are willing, during the time that this case is stayed, to investigate your claim against the doctor, but in order to do so, we will need copies of Ms. Spurgeon's medical records. If you will agree to provide those records, we would appreciate it.
¶ 5. On August 23, 2004, Dr. Egger's attorneys sent Mr. Armstrong a second letter. Within that letter, Clint Guenther stated, "I understand that Dr. Egger was served with process on August 11, 2004, but I also understand that Dr. Egger is in bankruptcy."
¶ 6. On September 9, 2004, Dr. Egger filed a motion to dismiss and alleged that the Spurgeons failed to personally serve him with process. Dr. Egger noted that the Spurgeons filed their complaint four days before the two-year statute of limitations expired. Dr. Egger took the position that, because the Spurgeons did not serve him with process within 120 days, the statute of limitations began to run on August 18, 2004, and expired four days later.
¶ 7. The circuit court conducted a hearing on Dr. Egger's motion to dismiss. After each side presented its arguments, the circuit court concluded that the Spurgeons did not complete service of process because Boozer did not have apparent authority to accept process for Dr. Egger. Further, because service of process was incomplete, the statute of limitations expired and the Spurgeons did not establish good cause for their failure to serve Dr. Egger within the statute of limitations. Accordingly, the circuit court dismissed the Spurgeons' complaint. Aggrieved, the Spurgeons appeal.
ANALYSIS
I. WHETHER THE CIRCUIT COURT ERRED WHEN IT DID NOT FIND EXCUSABLE NEGLECT FOR THE SPURGEONS' FAILURE TO SERVE DR. EGGER WITH PROCESS WITHIN 120 DAYS OF FILING THEIR COMPLAINT
¶ 8. The Spurgeons claim the circuit court erred when it dismissed their complaint. Naturally, Dr. Egger disagrees and submits the circuit court was correct. Though they filed their complaint four days before the statute of limitations expired, it is undisputed that the Spurgeons filed their complaint timely and within the two year statute of limitations incident to medical malpractice actions. E.g., Miss. Code Ann. § 15-1-36(2) (Rev.2003). As such, the statute of limitations was tolled for the 120-day period set forth pursuant to M.R.C.P. 4(h). Owens v. Mai, 891 So.2d 220, 223(¶ 16) (Miss.2005).
¶ 9. The Spurgeons then had to bring Dr. Egger within the personal jurisdiction of the Washington County Circuit Court. "The existence of personal jurisdiction depends upon the presence of reasonable notice to the defendant that an action has been brought." Lexington Ins. Co. v. Buckley, 925 So.2d 859, 865(¶ 25) (Miss.Ct.App.2005). "Service of process is simply the physical means by which personal jurisdiction is asserted." Id.
¶ 10. The Spurgeons hired Dennis Faust, a professional process server, to serve Dr. Egger. One-hundred-eleven days after the Spurgeons filed their complaint, Faust went to Dr. Egger's medical clinic to serve Dr. Egger. However, Faust did not serve Dr. Egger personally. Instead, he served Amanda Boozer, Dr. Egger's office assistant. Not only that, Faust did not tell Boozer what the documents were.
¶ 11. Despite the fact that Faust served Boozer rather than Dr. Egger, Faust completed a return and swore that he personally served Dr. Egger with process. Faust was incorrect. He did not accomplish personal service of process upon Dr. Egger when he served Boozer. To complete personal service of process upon an individual Mississippi resident (other than an unmarried infant or an incompetent person), a process server must deliver "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." M.R.C.P. 4(d)(1)(A).1
¶ 12. It is undisputed that Dr. Egger's office assistant, Boozer, had no authority to receive service of process for Dr. Egger. Boozer was not Dr. Egger's registered agent for service of process. Even so, there are instances in which a person may have apparent authority to accept service of process for another person. "An agent may have either express authority to receive process on behalf of the defendant, or may enjoy apparent authority." Cooley v. Brawner, 881 So.2d 300, 302(¶ 10) (Miss.Ct.App.2004) ).
¶ 13. "An apparent or ostensible agent is one whom the principal has intentionally or by want of ordinary care induced third parties to believe is his agent, although no authority has been conferred on him either expressly or by implication." Id. (citing 2A C.J.S. Agency § 20 (1972)). One may also be an apparent agent if he "reasonably appears by third parties to be the authorized agent of the principal." Id. The circuit court found that Boozer was not Dr. Egger's apparent agent. The Spurgeons claim the circuit court erred. We are mindful that questions of whether a person has apparent authority to accept service of process for another is a factual issue to be decided by the chancellor, and where a circuit court judge sits without a jury, the circuit court is entitled to the same deference as a chancellor, and the circuit court's findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence. Id. at (¶ 11); Jones v. Jones, 760 So.2d 828, 830(¶ 10) (Miss.Ct.App.2000).
¶ 14. In Williams v. Kilgore, 618 So.2d 51, 56 (Miss.1992) a deputy sheriff left a summons and complaint with a doctor's office manager. Both the office manager and the doctor executed affidavits that indicated the office manager's lack of authority to act as the doctor's agent for service of process. However, the deputy sheriff testified that "on many occasions" the office manager accepted service of process for doctors and that "he had never been instructed to the contrary on this or any other occasion." Finding that "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" the supreme court held that the deputy "properly served process in accordance with Rule 4(d)(1)(A)." Unlike the office manager in Kilgore, there is no evidence that Boozer routinely accepted service of process for Dr. Egger.
¶ 15. We cannot find that the circuit court erred when it concluded that Boozer did not have apparent authority to accept service of process on Dr. Egger's behalf. Boozer testified at the hearing on Dr. Egger's motion to dismiss. According to Boozer, Faust did not identify himself as a process server. Faust did not ask whether Boozer could accept process for Dr. Egger. Boozer did not...
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