Nelson v. Baptist Mem'l Hosp. - North Miss., Inc., et al.
| Docket Number: | 2009-CT-00081-SCT Linked Case(s): 2009-CA-00081-COA ; 2009-CA-00081-COA ; 2009-CT-00081-SCT |
|
| Supreme Court: | Opinion Link Opinion Date: 09-15-2011 Opinion Author: Lamar, J. Holding: Court of Appeals reversed; Circuit court affirmed. |
|
| Additional Case Information: |
Topic: Wrongful death - Service of process - M.R.C.P. 4(d) - Apparent authority to accept service - Statute of limitations Judge(s) Concurring: Waller, C.J., Carlson and Dickinson, P.JJ., Randolph, Chandler and Pierce, JJ. Non Participating Judge(s): Kitchens and King, JJ. Procedural History: Dismissal Nature of the Case: CIVIL - WRONGFUL DEATH |
|
| Trial Court: |
Date of Trial Judgment: 07-01-2008 Appealed from: Lafayette County Circuit Court Judge: Henry L. Lackey Disposition: Found that the plaintiffs failed to properly serve the defendant clinic and doctors by leaving process with the office manager. The suit was dismissed as beyond the statute of limitations. Case Number: L08-236 |
|
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Billy Nelson and Gaynelle Nelson, Individually and as Parents and Next Friends of Justin Nelson, and as Representatives of all Wrongful Death Beneficiaries and Heirs of Bobby Nelson, Deceased |
MARGARET P. ELLIS
RODERICK D. WARD, III |
||
| Appellee: | Baptist Memorial Hospital - North Mississippi, Inc.; William E. Henderson, Jr., M.D.; Oxford Clinic for Women, a Partnership; Ira Lamar Couey, M.D., General Partner; R. Blake Smith, M.D., General Partner; William E. Henderson, Jr., M.D., General Partner; and Bo Martin, M.D. | CLINTON M. GUENTHER WALTER ALAN DAVIS |
|
|
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. |
|
| Topic: | Wrongful death - Service of process - M.R.C.P. 4(d) - Apparent authority to accept service - Statute of limitations |
| Summary of the Facts: | Gaynelle Nelson and her husband, Billy Nelson, filed a wrongful-death action in which they alleged the medical negligence of Baptist Memorial Hospital-North Mississippi, Inc., the Oxford Clinic for Women, and Doctors William Henderson, Ira Couey, and R. Smith, caused their child’s death. Summonses were issued on October 22, 2003, and on November 3, 2003, the Nelsons filed a motion for additional time to serve the defendants. The trial court granted the plaintiffs an additional ninety days to serve process. Summonses were reissued on January 9, 2004, with the returned summonses filed January 20, 2004. The returned summonses reflect that Candace Hogue, the office manager for the Clinic and Doctors, was personally served with process. The Clinic and Doctors then filed a motion to dismiss. The trial court dismissed the action with prejudice. On appeal, the Court of Appeals ordered the action dismissed without prejudice for the Nelsons’ failure to provide presuit notice under section 15-1-36(15) and failure to attach a certificate of expert consultation under section 11-1-58(1). The Court of Appeals expressly declined to address the issue of whether the Nelsons properly had served process on the defendants. On March 26, 2008, the Nelsons refiled their complaint against Baptist, the Doctors, and the Clinic. In response to this action, the Doctors and the Clinic once again moved to dismiss the action as time-barred. The trial court dismissed with prejudice the Nelsons’ second action because of the Nelsons’ failure to comply with section 15-1-36(15). But the Court of Appeals again reversed the trial court and remanded for further proceedings, ruling that the Nelsons’ noncompliance with section 15-1-36(15) did not cause the 2003 complaint to be a nullity. The Supreme Court granted certiorari. |
| Summary of Opinion Analysis: | The Nelsons argue that, even if service of process was insufficient in Nelson I, the Court of Appeals dismissed the action without prejudice, which provided them the opportunity to refile their complaint and properly serve the Clinic and the Doctors in Nelson II. Pursuant to M.R.C.P. 4(d), the Court must determine whether Hogue was an agent authorized by appointment or by law to receive service of process. Apparent authority has three elements: acts or conduct of the principal; reliance thereon by a third person; and a change of position by the third person to his detriment. The trial court, not the jury, determines issues of fact regarding service of process. In this case, Hogue testified that she was not authorized by the Doctors to accept service of process; that she was not aware that the papers pertained to a lawsuit; that she had never accepted service of process on behalf of the Doctors; that the process server did not ask to see any of the Doctors and did not inform her that he was there to serve process on any of them. She also testified that it was not her custom and practice to accept service of process, and she had never seen the process server before or since he left process with her. Therefore, there was no abuse of discretion in the trial court’s conclusion that Hogue was not an “agent” to accept service of process for the Clinic and the Doctors. Without effective service of process, the statute of limitations began to run again after the ninety-day extension, which expired on February 4, 2004. And the parties agree that five days remained on the applicable statute of limitations when the Nelsons filed their first complaint in 2003. Therefore, this action is time-barred against the Clinics and the Doctors, as it was filed on March 26, 2008. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
