Spurgeon v. Egger
| Docket Number: | 2005-CA-01952-COA Linked Case(s): 2005-CA-01952-SCT ; 2005-CA-01952-COA ; 2005-CT-01952-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 12-11-2007 Opinion Author: Roberts, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Medical malpractice - Failure to timely serve complaint - M.R.C.P. 4(h) - M.R.C.P. 4 (d)(1)(A) - Good cause Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ. Dissenting Author : Carlton, J., with separate written opinion. Procedural History: Dismissal Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 08-11-2005 Appealed from: WASHINGTON COUNTY CIRCUIT COURT Judge: Margaret Carey-McCray Disposition: COMPLAINT DISMISSED Case Number: CI2004-92 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | HILDA PATSY SPURGEON AND OTTIS JEROME
SPURGEON |
WILLIAM R. ARMSTRONG |
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| Appellee: | EDWIN G. EGGER | STEVEN CAVITT COOKSTON CLINTON M. GUENTHER TOMMIE G. WILLIAMS |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Medical malpractice - Failure to timely serve complaint - M.R.C.P. 4(h) - M.R.C.P. 4 (d)(1)(A) - Good cause |
| Summary of the Facts: | 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. 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. |
| Summary of Opinion Analysis: | The Spurgeons argue that the court erred when it dismissed their complaint. It is undisputed that the Spurgeons filed their complaint timely and within the two year statute of limitations incident to medical malpractice actions. As such, the statute of limitations was tolled for the 120-day period set forth pursuant to M.R.C.P. 4(h). The Spurgeons hired Dennis Faust, a professional process server, to serve Dr. Egger. However, he did not serve Dr. Egger personally but served Dr. Egger’s office assistant. Not only that, he did not tell the assistant what the documents were. He then completed a return and swore that he personally served Dr. Egger with process. Pursuant to M.R.C.P. 4 (d)(1)(A), 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. Dr. Egger’s office assistant had no authority to receive service of process for Dr. Egger. 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. Under the circumstances of this case, the circuit court did not err when it concluded that the assistant did not have apparent authority to accept service of process on Dr. Egger’s behalf. Therefore, the Spurgeons’ 120-day deadline to serve Dr. Egger ended nine days after the assistant was served with process. At that point, the two-year statute of limitations began to run again. The two-year statute of limitations expired thirteen days after process was attempted to be served. A cursory review of the transcript of the hearing on Dr. Egger’s motion to dismiss suggests that, in reaching its decision, the circuit court did not consider whether the Spurgeons had good cause for their failure to serve Dr. Egger within 120 days of filing their complaint. The Spurgeons argue that the court erred when it failed to find good cause. To establish good cause the plaintiff must demonstrate at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice. In demonstrating good cause and diligence, a plaintiff must show that he or she has been unable to serve process because the defendant evaded process or engaged in misleading conduct, or for some other acceptable reason. In this case, the Spurgeons had reason to believe that Dr. Egger had actual knowledge of the lawsuit. Dr. Egger’s lawyers sent two letters to counsel for the Spurgeons. However, actual knowledge of a suit does not excuse proper service of process. The Spurgeons were not aware of a defect in service of process until Dr. Egger filed his motion to dismiss. The process server executed a sworn return of service of process and indicated that he personally served Dr. Egger. Three days after he improperly served the office assistant, Dr. Egger’s attorney contacted counsel for the Spurgeons regarding their claim. There is no doubt that the Spurgeons attempted to have Dr. Egger served with process within the 120-day time limit. Accordingly, it cannot be said that the Spurgeons did not act diligently. While Dr. Egger’s failure to mention improper service of process may not necessarily be considered concealment of that fact, at the same time, it can certainly be considered misleading as Dr. Egger’s lawyers obviously seemed to be aware of the Spurgeons’ suit. Based on these circumstances, the circuit court abused its discretion when it failed to find good cause for the Spurgeons failure to serve Dr. Egger within 120 days of the filing of their complaint. |
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