Irma Cohen Johnson v. Gutti Rao
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2005-CA-02178-SCT
IRMA COHEN JOHNSON
v.
GUTTI RAO, M.D.
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
10/07/2005
HON. C. E. MORGAN, III
GRENADA COUNTY CIRCUIT COURT
WENDY SCHENIQUE WILSON
WILLIE T. ABSTON
CLINTON M. GUENTHER
CIVIL - MEDICAL MALPRACTICE
AFFIRMED - 03/22/2007
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
1
Johnson’s complaint against Grenada Lake was dismissed with prejudice pursuant
to the trial court’s April 28, 2005, order. The trial court found that Johnson failed to timely
file suit pursuant to Miss. Code Ann. § 11-46-11 (Rev. 2002) and is now barred by the
statute of limitations. Johnson did not appeal that decision.
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
2
Miss. Code Ann. § 11-46-11 provides for a one-year statute of limitations for claims
against governmental entities.
3
Miss Code Ann. § 15-1-36 provides “no action based upon the health care
provider’s professional negligence may be begun unless the defendant has been given at least
(60) days prior written notice of the intention to begin the action.”
4
Johnson also brought suit again against Grenada Lake. However, Grenada Lake
filed a Motion to Dismiss the second complaint based upon the same grounds contained in
its motion to dismiss the first complaint. Again, the trial court ruled in favor of Grenada
Lake. However, unlike the first case, the trial court dismissed Johnson’s case with prejudice.
2
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.
3
¶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.
¶9.
Service of Process
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
5
As the trial court concluded that Dr. Rao was not properly served pursuant to
M.R.C.P. 4 and dismissed the complaint with prejudice, the trial court never ruled on Dr.
Rao’s other issue in his motion to dismiss regarding whether Johnson complied with Miss.
Code Ann. § 11-1-58.
4
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
5
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:
6
(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
office as well as upon Cliburn's acceptance of the documents, the Deputy
Sheriff appears to have properly served process in accordance with Rule
4(d)(1)(A).
(Emphasis added). The Court relied on the fact that the office manager, Cliburn, had in fact
accepted service of process on behalf of Dr. Kilgore and other doctors in the office on many
occasions in the past from this same deputy. Therefore, the Court concluded that Cliburn
was authorized as an agent to accept service of process.
7
¶15.
Here, the facts are distinguishable from the facts in Williams. While lengthy,
Powell’s testimony is helpful in shedding light on this issue and understanding the basis of
the trial court’s judgment to dismiss the complaint. Powell testified at the hearing on the
motion to dismiss, held on October 4, 2005, as follows:
Q:
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[D]id your duties include accepting what is called service of process on
Dr. Rao’s behalf if he were to be sued in a lawsuit?
No.
Okay. Has Dr. Rao ever appointed you his agent for service of
process?
No.
Has Dr. Rao ever said anything to you to the effect of - and let me give
you a [sic] for example - Melissa, if anybody ever brings a lawsuit in
here to serve on me, I want you to accept it on my behalf. Has he ever
said anything like that?
No.
Have you ever been served with a summons –
No.
– or process? Have you ever personally been sued?
No.
Have you ever accepted – and again, this is a legal term. It’s called
service of process. Let me back up. You and I first met in – first talked
sometime in late April or May of this year; is that correct?
Right.
When you and I talked, had you ever heard the term service of process
before?
No.
Okay. Have you ever accepted service of process on behalf of
somebody besides yourself?
No.
Is it the custom or practice or routine of Dr. Rao’s office for someone
besides Dr. Rao to accept a summons or process for Dr. Rao?
No.
In your course of employment at Dr. Rao’s office, have you ever
accepted process for or on behalf of Dr. Rao?
No.
On April 7 of 2005, did you accept process? Did you accept a
summons and complaint for or on behalf of Dr. Rao?
8
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No.
On April 7 of 2005, did a[n] uniformed man come to the office with
some papers at Dr. Rao’s office?
Yes.
Okay. Tell the Court, please, Miss Powell, exactly to the extent you
remember, everything that happened - what was said to you, and what
you said in reply, and how long this all took when this uniformed man
came to Dr. Rao’s office.
Okay. He came in. He asked if this is Dr. Rao’s office. I said yes.
Speak slowly now.
And he handed me the papers. He asked me to sign for them. And so
I signed, asking why. He said so that he would know whose hands he
left it in.
Okay. Did you know this man?
No.
Now, you had told me before, that is why I asked you. You said he had
a[n] uniform on. Did you recognize the uniform?
I knew he was a sheriff. . . .
Did he identify himself? Did he say who he was?
No.
Did he say who he was or what he was there for, what his purpose of
being at Dr. Rao’s office was for?
No.
These papers that he mentioned, did you know what they were?
No. . . .
Did he ask to see Dr. Rao?
No.
Did he say that he needed to personally give these papers to Dr. Rao?
No.
. . . Was Dr. Rao actually in the office that day?
Yes.
Did this uniformed man make any attempt to go and see or speak with
Dr. Rao?
No.
Miss Powell, if this sheriff’s deputy had asked you to let me him
personally speak to Dr. Rao, what would you have done?
I would have went and got him and he would have came to the front –
...
Did you tell this man that you were authorized to accept process on
behalf of Dr. Rao?
No.
9
At the conclusion of the hearing, the trial court issued its bench ruling, stating:
The point is whether or not she [Powell] was authorized to do it [accept
process on behalf of Dr. Rao]. . . . Either by the doctor or as a matter of law.
This is – I’m not trying to cut y’all off, but this is pretty clear-cut. This service
of process is inadequate. It does not meet the requirements of Rule 4, and
therefore the motion to dismiss is sustained.
¶16.
On October 12, 2005, the trial court issued its order entering final judgment of
dismissal with prejudice. The order provided:
[T]he Court finds that neither Dr. Rao, nor an agent authorized by appointment
or by law to receive service of process on Dr. Rao’s behalf, was personally,
sufficiently served with process in accordance with the Mississippi Rules of
Civil Procedure 4 within 120 days from the filing of the Complaint herein,
after which the statute of limitations herein has also expired.
¶17.
Further, in Cooley v. Brawner, 881 So. 2d 300, 301-02 (Miss. Ct. App. 2004), the
Court of Appeals affirmed the trial court’s judgment dismissing the complaint finding that
service of process was not effectuated by service of process on a doctor’s receptionist. The
court found that the evidence neither provided that the receptionist fully understood what was
occurring nor established the patterns or practices of the doctor’s office in accepting process.
Id. The court reasoned as follows:
[T]he trial judge held a hearing on the motion. The trial judge found
that service of the complaint upon Dr. Brawner's receptionist was not effective
service, and no good cause had been shown why service was not effectuated
within 120 days. The trial judge entered an order dismissing the complaint .
..
No live testimony was offered on the motion. However, the affidavits
of both Davis, Dr. Brawner's receptionist, and Weathers, the process server,
were made a part of the record on the motion.
Davis' affidavit, presented by the defense, stated that her duties as
receptionist "are simply to answer the phone and to check patients in and out."
10
Davis' affidavit stated that an unidentified female came in the office on
February 1, 2002, and delivered an envelope, and that at no time did the
woman identify herself or the contents of the envelope. Davis stated that the
unidentified woman said that the envelope contained "legal papers" for Dr.
Brawner.
Weathers' affidavit stated that she delivered a copy of a complaint and
summons for Dr. Brawner to Tupelo Eye Clinic. Weathers stated that she
spoke with a female behind the desk and told her that she had "legal papers to
serve Dr. Brawner with" and that the female behind the desk told Weathers "to
give them to her." Weathers states that the woman never indicated that she
was not the proper person to receive the legal papers.
Neither woman was questioned during the hearing. No effort was made
to identify the patterns and practices of this office. No effort was made to
clarify whether Dr. Brawner's receptionist fully understood what was taking
place, or the nature of the act. The evidence before this Court is insufficient
to make a determination that Davis was a de facto agent for Dr. Brawner. In
the absence of sufficient factual information, this Court, like the circuit court,
must hold that Davis was not the agent of Dr. Brawner.
Cooley, 881 So. 2d at 301-03.
¶18.
Here, Dr. Rao’s receptionist, Powell, testified that she was not authorized by Dr. Rao
to accept service of process; that she was not aware that the papers were regarding a lawsuit
against Dr. Rao; that she had never accepted service of process on behalf of Dr. Rao or
anyone else, in the past; that the deputy did not ask to see Dr. Rao and did not inform her that
he was there to serve process on Dr. Rao. Nothing in the record reveals that Powell was
authorized to accept process or that Powell had ever accepted service of process on prior
occasions. Further, nothing in the record contradicts that Powell did not have authority to
accept service of process on behalf of Dr. Rao.
11
¶19.
Powell was the only witness who testified at the hearing on the motion to dismiss.
The only evidence submitted besides Powell’s extensive testimony at the hearing was Deputy
Payne’s affidavit. Deputy Payne’s affidavit provided that he left the summons and complaint
with Powell and she accepted the papers and signed for them. As the trial court concluded,
it is undisputed that Powell was served the papers and she signed for the papers left by
Deputy Payne. However, the trial court concluded that service of process was not sufficient
as to serve Dr. Rao.
¶20.
Therefore, we find that the trial court did not err in granting Dr. Rao’s motion to
dismiss Johnson’s compliant due to insufficient service of process. Likewise, as the statute
of limitations had expired, the trial court did not err in dismissing the complaint with
prejudice.
II.
¶21.
Miss. Code Ann. § 11-1-58 (Rev. 2002)
Dr. Rao, as in Walker v. Whitfield Nursing Ctr., Inc., 931 So. 2d 583, 588 (Miss.
2006), essentially raises the issue of whether strict compliance with the statutory
requirements of Miss. Code Ann. § 11-1-58 is required.
¶22.
However, as the trial court determined that Dr. Rao was not properly served pursuant
to M.R.C.P. 4 and dismissed the complaint with prejudice, the trial court never ruled on Dr.
Rao’s other issue in his motion to dismiss regarding whether Johnson complied with Miss.
Code Ann. § 11-1-58. In his motion to dismiss, Dr. Rao raised the issue of whether Johnson
complied with Miss. Code Ann. § 11-1-58 and reasserts this issue on appeal. However,
during the hearing on Dr. Rao’s motion to dismiss, Dr. Rao did not raise Miss. Code Ann.
12
§ 11-1-58, nor did the trial court rule on this issue in its bench opinion. Likewise, the trial
court did not rule on this issue in its final judgment. Further, Dr. Rao did not re-raise the
issue of Miss. Code Ann. § 11-1-58 to the trial court for consideration after the trial court’s
judgment failed to address it.
¶23.
That being said, we find there is no need to address this assignment of error as we
affirmed the trial court in Issue I which held that Dr. Rao was not properly served pursuant
to M.R.C.P. 4 and affirmed its dismissal of the complaint with prejudice. As we affirmed
the trial court’s judgment in Issue I, Issue I is dispositive of this appeal and this case.
CONCLUSION
¶24.
For the foregoing reasons, the judgment of the Circuit Court of Grenada County is
affirmed.
¶25.
AFFIRMED.
SMITH, C.J., WALLER, P.J., CARLSON, DICKINSON AND RANDOLPH, JJ.,
CONCUR. GRAVES, J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY DIAZ, J. COBB, P.J., NOT PARTICIPATING.
GRAVES, JUSTICE, DISSENTING:
¶26.
Because it is my view that service of process upon Rao’s receptionist, Melissa Powell
(Powell), was sufficient pursuant to Rule 4(d)(1)(A) of the Mississippi Rules of Civil
Procedure (M.R.C.P.), and that Irma Johnson (Johnson) substantially complied with the
requirements of Miss. Code Ann. § 11-1-58 (Rev. 2002), I respectfully dissent.
A.
Whether Service of Process Was Sufficient Pursuant to Rule 4 of the
Mississippi Rules of Civil Procedure
13
M.R.C.P. 4(d)(1)(A) provides:
The summons and complaint shall be served together. Service by a
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 the
complaint to him personally or to an agent authorized by appointment
or by law to receive service of process.
(Emphasis added). M.R.C.P. 4(d)(1)(A) permits an agent “authorized ‘by appointment’ or
‘by law’ to receive service of process.” Although this Court has not precisely defined “by
appointment,” the Southern District of Ohio has defined “by appointment [to mean] an actual
appointment by the defendant, and, if such has been made, service upon the agent gives the
court jurisdiction.” Whisman v. Robbins, 712 F.Supp 632, 636 (S.D. Ohio 1988). Because
Powell explicitly stated that Rao never expressly authorized her to accept service of process
on his behalf, the primary issue before this Court is whether she is a valid “agent” authorized
“by law” to receive service of process on his behalf. This Court has not precisely articulated
a standard to determine whether an employee is a valid “agent” authorized “by law” to
accept service of process on behalf of an employer.6
6
In Williams v. Kilgore, which the majority cites, this Court held that service of process was valid
on an “office manager who, by custom and practice is vested with the apparent authority to do so.” Williams
v. Kilgore, 618 So.2d 51, 56 (1992). In Williams, the deputy sheriff testified that the office manager and other
employees previously accepted service of process on behalf of Kilgore. Id. Therefore, this Court concluded
that since Kilgore had never instructed the deputy sheriff not to allow the office manager or any other
employee to accept service of process on his behalf, the office manager was vested with the apparent authority
to do so. Id. It is my view that Kilgore expressly authorized his office manager to accept service of process
on his behalf by ratifying her conduct. Therefore, similar to the majority, I agree that the facts in Williams
are clearly distinguishable from those in the case currently before this Court. Additionally, I further contend
that this Court’s decision in Williams is totally irrelevant to the current issue before this Court as to whether
Powell was authorized by law to serve as Rao’s agent for purposes of service of process.
14
¶27.
The rules which govern service of process should be “applied in a manner that will
best effectuate their purpose of giving the defendant adequate notice.” Direct Mail Specialist,
Inc., v. Eclat Computerized Technologies, Inc., 840 F.2d 685, 688 (9th Circuit 1988). The
Georgia Supreme Court has construed their service of process rules and statutes to achieve
their underlying purpose. Scott v. Atlanta Dairies Cooperative, 238 S.E.2d 340, 343 (Ga.
1977). That court has adopted a two-prong test to determine whether an agent is authorized
to accept service of process on behalf of an employer. Henderson v. Bekaert, 932 F.2d 1410,
1412 (11th Circuit 1991). The first prong of the test defines who is considered an agent for
purposes of service of process. Id. “In discussing who is an ‘agent’ who can properly receive
service, the Georgia Supreme Court has said that ‘since the object of service of process is to
transmit notice of suit to the [defendant], it must be made on an agent whose position is such
as to afford reasonable assurance that he will inform his corporate principal that such process
has been served upon him.’” Henderson, 932 F.2d at 1412 (quoting Scott, 238 S.E.2d at
343). The second prong of the test considers whether the employer received timely actual
notice of the lawsuit. Henderson, 932 F.2d at 1413.
¶28.
This Court has defined the word “agent” when used in service of process statutes and
rules, “[to] include agents vested with some general authority and discretion, and not to
extend to mere employees having no independent powers.” Mills v. Wagner, 94 Miss. 233,
239, 47 So.899, 901 (1908) (citations omitted). Our definition adequately ensures that only
employees with some authority are classified as agents authorized to accept service of
process on behalf of an employer. However, our definition does not expressly provide that
15
the agent must possess a position by which the agent can be expected to inform the employer
that he has been served with process. The standard adopted by the Georgia Supreme Court
expressly states “[service of process] must be made on an agent whose position is such as to
afford reasonable assurance that he will inform his corporate principal that such process has
been served upon him.” Scott, 238 S.E.2d at 343.
¶29.
In Scott, the Georgia Supreme Court found service to be proper on an employee. Id.
at 343. The court further found that, although the employee was not an officer, he was more
than “a mere clerk, laborer, or servant.” Id. The employee was in charge of scheduling the
delivery of milk and supervising ten other employees. Id. The court also found that the
employee’s duties also consisted of “relay[ing] communications from his employer.” Id. As
such, “the employee could be expected to notify his employer that he had been served with
process.” Id. See also Ogles v. Globe Oil Co., U.S.A., 171 Ga. App. 785, 786, 320 S.E.2d
848, 849 (1984) (service proper on manager of appellee’s store who was responsible for daily
operations of the store and supervising other employees) and Northwestern Nat’l Ins. Co.
v Kennesaw Transp., 168 Ga. App. 701, 702, 309 S.E.2d 917, 919 (1983) (service proper on
an employee who had some discretion and authority regarding the management of the office);
compare with Citizens Bank of Hapeville v. Alexander- Smith Academy, 226 Ga. 871, 872,
178 S.E.2d 178, 179-80 (1970) (service not proper on “personal secretary/typist” because no
evidence introduced to establish that she had any discretion or authority regarding the
operation of the corporation) and Whatley’s Interiors, Inc, v. Anderson, 176 Ga. App. 406,
16
407, 336 S.E.2d 326, 328 (1985) (service not proper on an employee who did not perform
any other duties besides those of a secretary/typist).
¶30.
Other courts also have found service of process to be valid on an employee whose job
responsibilities provide reasonable assurance that the employee will inform his employer that
he has been served with process. See, e.g., Top Forms Mills, Inc. v. Sociedad Nationale
Industria Applicazioni Viscosa, 428 F. Supp. 1237, 1251 (S.D.N.Y. 1977); (service on
secretary was valid because her job responsibilities included handling the daily operations
of the corporation; thus she could be expected to notify her employer that he had been served
with process); Direct Mail Specialist, 840 F.2d at 688 (service of process upheld where the
receptionist played a large role in the structure of the company); Leo v. General Electric Co.,
111 F.R.D. 407, 414 (E.D.N.Y 1986) (service of process valid on secretary because she was
a corporate employee and she redelivered the summons and complaint to an agent authorized
to receive service of process); O’Connor v. Altus, 333 A.2d 545, 557 (N.J. 1975) (service
of process upon the receptionist of the managing agent was proper because “she was
sufficiently integrated with the small organization to know what to do with the legal
papers”); Flynn v. Pulaski Construction Co., 2006 U.S. Dist. Lexis 1680, 17 (D.C. 2006)
(service of process upon the receptionist/secretary proper where she was sufficiently
integrated with the corporation to know what to do with the papers).
¶31.
Similar to the cases discussed supra, Powell’s job responsibilities provided reasonable
assurances that she would inform Rao that he had been served with process. The record
indicates that Powell performed duties and responsibilities in addition to those of a
17
receptionist. According to Powell’s testimony, her duties included filing, answering the
phones, checking patients in, and “whatever else [that] needed to be done.” Powell also
testified that she “accept[s] stuff all the time” on behalf of Rao. Although the record does
not clearly establish “what stuff [Powell] accepts,” Rao did not offer any evidence indicating
that she failed to give him any of the “stuff” that she had previously accepted on his behalf.
¶32.
Like the employee in Scott, Powell was more than a mere clerical employee. Her
testimony that her duties included “whatever else [that] needed to be done” and “accept[ing]
stuff all the time” on behalf of Rao indicates that although her formal title was “receptionist,”
her responsibilities were more similar to those of an office manager. She had some discretion
and authority regarding the operation of Rao’s office.
¶33.
On the day in question, it is undisputed that Payne, in uniform, entered Rao’s office
and served Powell with legal papers. The legal papers were not in an envelope, and the title
on the first page read “SUMMONS.” Powell accepted the legal papers and signed a form
acknowledging her receipt of them. Based on Powell’s job responsibilities, it would be
unreasonable to assume that she would not give Rao the legal papers that were personally
delivered to his office by a Deputy sheriff wearing an official uniform. “Clearly, [Powell’s]
job responsibilities were such as to afford reasonable assurances that [she] would inform
[Rao] of the service of process upon him; and it is undisputed that [she] in fact did so in a
timely manner.” Ogles, 320 S.E.2d at 849. Hence, she is authorized by law to serve as Rao’s
agent and accept service of process on his behalf. Moreover, Rao received actual notice of
the lawsuit. So the underlying purpose of the rule, which is to give the defendant adequate
18
notice, was achieved. Because of the aforementioned reasons, I find that service of process
was sufficient pursuant to Rule 4 of the M.R.C.P.
B.
¶34.
Whether Strict Compliance with the Statutory Requirements of Miss.
Code Ann. § 11-1-58 (Rev. 2002) is Required
Because I find that service of process was sufficient pursuant to Rule 4 of the
M.R.C.P., I am compelled to address Rao’s assignment of error. Rao argues in the alternative
that if service of process is found to be sufficient, the trial court’s judgment to dismiss the
case with prejudice should still be affirmed. Rao essentially raises the issue of whether strict
compliance with the statutory requirements of Miss. Code Ann. § 11-1-58 (Rev. 2002) is
required.
Miss. Code Ann. § 11-1-58 (Rev.2002) states:
(1) In any action against a licensed physician, health care provider or health
care practitioner for injuries or wrongful death arising out of the course of
medical, surgical or other professional services where expert testimony is
otherwise required by law, the complaint shall be accompanied by a
certificate executed by the attorney for the plaintiff declaring that:
(a) The attorney has reviewed the facts of the case and has consulted
with at least one (1) expert qualified pursuant to the Mississippi Rules of Civil
Procedure and the Mississippi Rules of Evidence who is qualified to give
expert testimony as to standard of care of negligence and who the attorney
reasonably believes is knowledgeable in the relevant issues involved in the
particular action, and that the attorney has concluded on the basis of such
review and consultation that there is a reasonable basis for the commencement
of such action; or
(b) The attorney was unable to obtain the consultation required by
paragraph (a) of this subsection because a limitation of time established by
Section 15-1-36 would bar the action and that the consultation could not
reasonably be obtained before such time expired. A certificate executed
pursuant to this paragraph (b) shall be supplemented by a certificate of
19
consultation pursuant to paragraph (a) or (c) within sixty (60) days after
service of the complaint or the suit shall be dismissed; or
(c) The attorney was unable to obtain the consultation required by
paragraph (a) of this subsection because the attorney had made at least three
(3) separate good faith attempts with three (3) different experts to obtain a
consultation and that none of those contacted would agree to a consultation.
(Emphasis added).
¶35.
Clearly, substantial compliance with Miss. Code Ann. § 11-1-58 (Rev. 2002) satisfies
the statutory requirements. Johnson substantially complied with the requirements of Miss.
Code Ann. § 11-1-58 (Rev. 2002) by submitting a certificate of expert consultation with the
first complaint. As discussed in my dissent in Arceo v. Tolliver, I am still of the opinion that
strict compliance with the statutory requirements of Miss. Code Ann. § 11-1-58 (Rev. 2002)
“only serves to deny the citizens of this State their right to bring claims before the courts for
adjudication.” Arceo v. Tolliver, 2006 Miss. Lexis 650, 19-20 (Graves, J., dissenting).
¶36.
This Court has a long-standing history of ensuring that cases are decided on the merits
and are not dismissed because of the parties’ inadvertence to comply with the “formal rules
of pleadings and practice.” Field v. Middlesex Bkg. Co., 77 Miss. 180, 26 So. 365 (1899).
This Court has adopted the standard of substantial compliance when deciding whether a party
has complied with certain provisions of the Mississippi Rules of Civil Procedure and the
Mississippi Tort Claims Act.7 S. Cent. Reg’l Med. Ctr. v. Guffy, 930 So.2d 1252, 1256
(Miss. 2006); Chassaniol v. Bank of Kilmichael, 626 So.2d 127-29 (Miss. 1993); City of
7
In University of Mississippi Medical Center v. Easterling, this Court adopted a strict compliance
standard regarding the ninety-day notice requirement of the Mississippi Tort Claims Act under Miss. Code
Ann. § 11-46-11(1) (Rev. 2002). 928 So.2d 815 (Miss. 2006)
20
Jackson v. Presley, 2006 Miss. Lexis 649, 17. Although this Court has previously adopted
such a liberal standard of compliance, we have emphasized that “we can hardly afford relief
under the [MTCA] when there is no effort to comply with the procedural mandates.” Little
v. Miss. Dep’t of Human Servs., 835 So.2d 9, 12-13 (Miss. 2002). “Substantial compliance
is not the same as, nor a substitute for, noncompliance.” Gale v. Thomas, 759 So.2d 1150,
1158 (Miss. 1999) (quoting Carr v. Town of Shubuta, 733 So.2d 261, 265 (1999). The
determination of substantial compliance is a legal, though fact-sensitive, question and is
therefore, necessarily decided on an ad hoc basis.” Town of Shubuta, 733 So.2d at 265.
¶37.
In City of Jackson v. Presley, this Court held that the trial judge erred in granting a
default judgment against the City. City of Jackson v. Presley, 2006 Miss. Lexis 649, 18.
This Court concluded that the City substantially complied with Rule 15 of the M.R.C.P. by
submitting an untimely amended answer almost four years later.8 Id. at 17. In fact, we stated
in Presley that the “default was largely technical” in the sense that the original complaint was
identical to the amended complaint except for one sentence asserting a claim for property
damage.9 Id. The City only failed to respond to “Presley’s one sentence for property damage
found in the amended complaint.” 10 Id.
8
Rule 15(a) of the Mississippi Rules of Civil Procedure provides: “A party shall plead in response
to an amended pleading within the time remaining for response to the original pleading or within ten days
after service of the amended pleading, whichever period may be longer, unless the court otherwise orders.”
9
The one sentence added to the amended complaint read as follows: “Additionally, Presley has
incurred property damage as a proximate result of Morton’s negligence and the resulting accident.”
10
In the untimely filed amended answer the City added three additional affirmative defenses: “(1) the
affirmative defense of res judicata based on the Union County law suit; (2) accord and satisfaction based on
the execution of the general release in settlement of the first lawsuit; and (3) setoff or credit for sums Presley
21
¶38.
In contrast to Presley, this Court in Walker v. Whitfield Nursing Home, rejected the
plaintiff’s claims that she substantially complied with Miss. Code Ann. § 11-1-58 (Rev.
2002). Walker v. Whitfield Nursing Home, 931 So.2d 583, 589 (2006). Walker argued that
she substantially complied with the statute by consulting with an expert in February 2004,
before filing suit on April 7, 2004. Id. However, this Court found Walker’s arguments to be
unpersuasive. Id. The record revealed that the defendant never received any written reports
or records from Walker’s expert. Id. In September 2005, Walker filed the expert’s report in
the court record. Id. Hence, this Court found that the issue was not whether Walker
substantially complied with Miss. Code Ann. § 11-1-58 (Rev. 2002). Id. Instead, this Court
found that the primary issue was whether Walker, who failed to submit any notice with the
filing of her complaint, satisfied the statutory requirement. Id. Because the complaint was
not accompanied by any information stating that Walker had consulted with an expert and
also because she never provided the defendant with any information about her expert, this
Court held that she failed to comply with the requirements of Miss. Code Ann. § 11-1-58
(Rev. 2002). Id.
¶39. The facts in the instant case are more analogous to those in Presley than those in
Walker. Johnson, through inadvertence, failed to submit a certificate of expert consultation
with the second complaint, whereas Walker failed to submit any notice with the filing of her
complaint. Johnson, like the City in Presley, substantially complied with the requirements
received in the settlement of the first lawsuit.”
22
of Miss. Code Ann. § 11-1-58 (Rev. 2002) by submitting a certificate of expert consultation
with the first complaint. Additionally, Johnson’s first complaint and second complaint were
also substantially the same as the original answer and amended answer in Presley. According
to this Court’s holding in Presley, Johnson’s failure to attach the expert consultation to the
second complaint was merely a “technical error.” Since she attached it to the first compliant
and later attached it to her responsive pleadings to the second complaint.11
¶40. The chief goal of this Court when construing the meaning of a statute is to find and
apply the real intention of the Legislature. Gambrill v. Gulf States Creosoting Co., 216 Miss.
505, 62 So.2d 772, 775 (1953); see Miss. Casino Operators Ass’n v. Miss. Gaming
Comm’n, 654 So.2d 892, 894 (Miss. 1995). Upon a careful review of the language of Miss.
Code Ann. § 11-1-58 (Rev. 2002), it is undisputable that the primary purpose of the statute
is to prevent the filing of frivolous suits that are not well founded in the law. Johnson, before
filing suit against Rao, consulted with an expert who verified that her claims against Rao
were well founded and grounded in the law. Johnson’s inadvertence was largely a “technical
error” instead of a substantive error, and the overall objective and purpose of the statute was
satisfied; therefore, I find that Johnson substantially complied with the requirements of the
statute.
¶41.
As I articulated in Arceo, this Court should not erect barriers that work to deny
litigants their constitutionally guaranteed right. Arceo, 2006 Miss. Lexis 650, 35 (Graves, J.,
11
Johnson attempted to cure the potential defect by attaching the certificate of expert consultation to
Plaintiff’s Response to Defendant’s Rebuttal to Plaintiff’s Response to Defendant’s Motion to Dismiss.
23
dissenting). To require strict compliance with Miss. Code Ann. § 11-1-58 (Rev. 2002)
“clearly denies, without due process of law, the plaintiff’s right to pursue her claim.” See Id.
(“arguing that a cause of action is a species of property which is protected by the Fourteenth
Amendment’s Due Process Clause (quoting Logan v. Zimmerman Brush Co., 455 U.S. 422,
428 102 S.Ct. 1148, 1154, 71 L.Ed. 2d 265 (1982)). Because Johnson substantially complied
with the requirements of Miss. Code Ann. § 11-1-58 (Rev. 2002), I would remand this case
for further proceedings. Therefore, I respectfully dissent.
DIAZ, J., JOINS THIS OPINION.
24
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