IN THE SUPREME COURT OF MISSISSIPPI
NO. 2013-CT-00408-SCT
PERRIECE COLLINS, INDIVIDUALLY AND AS
THE PARENT, LEGAL GUARDIAN AND NEXT
FRIEND OF SHONIQWA COLLINS,
INDIVIDUALLY AND AS THE PARENT, LEGAL
GUARDIAN AND ON BEHALF OF ANY AND ALL
WRONGFUL DEATH BENEFICIARIES OF
SHATAJA NIKEARA COLLINS, DECEASED
v.
TOIKUS WESTBROOK, M.D.
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 02/06/2013
TRIAL JUDGE: HON. VERNON R. COTTEN
TRIAL COURT ATTORNEYS: SHANE F. LANGSTON
REBECCA M. LANGSTON
JESSICA ELIZABETH MURRAY
MARY FRANCES STALLINGS-ENGLAND
L. CARL HAGWOOD
JOHN MICHAEL COLEMAN
COURT FROM WHICH APPEALED: LEAKE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: SHANE F. LANGSTON
REBECCA M. LANGSTON
ATTORNEYS FOR APPELLEE: JOHN MICHAEL COLEMAN
L. CARL HAGWOOD
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: REVERSED AND REMANDED - 02/11/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
KITCHENS, JUSTICE, FOR THE COURT:
¶1. Perreice Collins filed a wrongful death action on behalf of her minor daughter,
Shoniqwa, and on behalf of the wrongful death beneficiaries of Shoniqwa’s stillborn
daughter, Shataja. Finding that Collins had not shown good cause for her failure to effect
service of process upon Dr. Toikus Westbrook, the Circuit Court of Leake County granted
Dr. Westbrook’s motion to dismiss. Collins appealed, and this Court assigned her case to the
Court of Appeals, which affirmed the decision of the trial court. Collins then filed a Petition
for Writ of Certiorari, which this Court granted.
¶2. We hold that Collins offered uncontradicted proof of “good cause” in explanation of
her failure to serve process upon Dr. Toikus Westbrook within 120 days of having filed a
civil complaint as required by Rule 4(h) of the Mississippi Rules of Civil Procedure. Collins
also established “excusable neglect,” as contemplated by Rule 6(b) of the Mississippi Rules
of Civil Procedure, entitling her to an extension of time in which to serve process upon Dr.
Toikus Westbrook. Therefore, we reverse the judgments of the trial court and the Court of
Appeals and remand this case to the Circuit Court of Leake County for further proceedings.
FACTS
¶3. On December 16, 2011, Collins filed a complaint in the Circuit Court of Leake
County on behalf of her minor daughter, Shoniqwa Collins, and the other wrongful death
beneficiaries of Shataja Nikeara Collins, a stillborn infant. The complaint named Dr. Toikus
Westbrook, a physician, and others as defendants and alleged that Dr. Toikus Westbrook’s
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negligence, including his failure to intervene under circumstances which clearly indicated
fetal distress, wrongfully caused the death of the infant. Thus, under the provisions of Rule
4(h), Collins had 120 days, or until April 14, 2012, to serve the complaint and summons on
all of the named defendants, including Dr. Toikus Westbrook. M.R.C.P. 4(h).
¶4. Shane Langston, Collins’s lead attorney, delegated the responsibility of having process
served on Dr. Toikus Westbrook to his longtime legal assistant. However, during the 120-day
period allowed for service upon this defendant, the legal assistant experienced “very extreme
personal problems.” A few days before the deadline, Langston realized that the legal assistant
had failed to effect service of process on the defendants.
¶5. On April 11, 2012, Langston hired Quantum Process, a professional process-serving
company in Hattiesburg, Mississippi, to serve Dr. Toikus Westbrook. Robert David “Davy”
Keith II, Quantum Process’s owner, using a technique called a “skip trace,” attempted to find
an address for Toikus Westbrook. The skip trace results listed two possible addresses for that
person: one in New Orleans, Louisiana, and the other in Germantown, Tennessee.1
¶6. On April 13, 2012, Keith telephoned the residential telephone number at a location
that matched the address associated with Dr. Toikus Westbrook in Germantown, Tennessee.
According to Keith, he left a message on the answering machine for Dr. Toikus Westbrook.
Someone, using the Germantown, Tennessee, residential telephone number, returned Keith’s
call. Keith explained to the caller that he had a delivery for Dr. Toikus Westbrook. At first,
1
The dissent observes that, on April 13, 2012, Keith told Collins’s counsel in an
email that “I think the chances of serving [Dr. Toikus Westbrook] today are very slim.” But
eighteen minutes later, Keith sent another email assuring Collins’s counsel that he would be
able to effect service of process on Dr. Toikus Westbrook that day.
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the caller told Keith, “he’s not available.” Keith told the caller that he had a delivery from
“Maxim Physicians,” Dr. Toikus Westbrook’s employer. The person on the telephone then
said: “Oh, that’s me. You can bring that to me,” claiming that he was on his way to
Incredible Pizza, a pizzeria in Germantown. He asked whether Keith could meet him there.
Keith arranged for Gary Murphree, a process server in Memphis, Tennessee, to meet Dr.
Toikus Westbrook at Incredible Pizza in nearby Germantown.
¶7. According to Murphree, he arrived at Incredible Pizza and asked restaurant personnel
to page Toikus Westbrook. An employee then escorted Murphree to a back room where a
man was sitting. When Murphree asked the man whether he was Toikus Westbrook, the man
said “yes,” and Murphree, who had hidden the summons and complaint in a pizza box,
opened the box, removed the papers, and handed the man the papers. Murphree informed the
man: “You have now been served.” Murphree executed an Affidavit of Service, in which he
stated that he had served the summons and the complaint on Toikus Westbrook on April 13,
2012.
¶8. On May 7, 2012, Dr. Toikus Westbrook filed a motion to dismiss, arguing that his
father, Dr. Jesse Westbrook, actually had been served and that the complaint should be
dismissed because of insufficient service of process. On May 21, 2012, Dr. Toikus
Westbrook filed the affidavit of Dr. Jesse Westbrook in support of the motion to dismiss,
which had been signed on May 7, 2012. In this affidavit, Dr. Jesse Westbrook averred:
That he is an adult resident citizen of Germantown, Tennessee, over the age
of eighteen years and legally competent to give this affidavit.
That he is a dentist practicing in Memphis, Tennessee.
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That his home address is 1666 Newsum Drive, Germantown, Tennessee
38138.
That he was served with process in the above-referenced case on or about
April 14, 2012.
That he has no personal knowledge of this case other than his son is named
Toikus Westbrook, M.D.
That he was not practicing medicine on or about June 30, 2010, at Leake
County Memorial Hospital.
¶9. On June 14, 2012, Dr. Jesse Westbrook executed a second affidavit, in which he
stated:
That he is an adult resident citizen of Germantown, Tennessee, over the age
of eighteen years and legally competent to give this affidavit.
That on or about April 16, 2012, he received a telephone call at his home from
a man stating that he had some important documents regarding physician
services for a “Dr. Westbrook.”
Dr. Jesse Westbrook then identified himself as “Dr. Westbrook.”
The man requested to meet Dr. Jesse Westbrook at his home; however, Dr.
Westbrook informed the man that he and his family were headed to dinner at
Incredible Pizza in Germantown, Tennessee.
While at Incredible Pizza, a man approached Dr. Westbrook with a pizza box
and pulled out some documents.
The man handed the documents to Dr. Jesse Westbrook and said, “You have
now been served.”
The man immediately turned around and left Incredible Pizza.
Dr. Jesse Westbrook did not know the content of these papers until he read
them as the process server was leaving.
In neither the telephone call nor the personal meeting did anyone confirm that
Dr. Jesse Westbrook was anyone other than “Dr. Westbrook.”
5
¶10. The trial court held the first hearing on Toikus Westbrook’s motion to dismiss in June
2012. The hearing was not transcribed, but the uncontested affidavit of Jessica Murray, an
attorney representing Collins at the hearing, stated that neither Dr. Jesse Westbrook nor Dr.
Toikus Westbrook attended the hearing and no additional evidence was offered. The trial
judge continued the hearing, informing counsel that he would like to consider witness
testimony before making a decision about whether process had been served on Dr. Toikus
Westbrook.
¶11. The second hearing on the motion to dismiss was held on October 31, 2012. Keith,
the owner of Quantum Process, provided the following testimony:
LANGSTON: Mr. Keith, tell Your Honor what efforts you were asked to make
on behalf of my law firm to serve process on Dr. Toikus Westbrook, in or
around April of this year?
KEITH: Around April of this year, I was contacted by your law firm, Langston
and Langston, to locate and serve process on a Toikus Westbrook. If I [re]call
there were several—
THE COURT: Let’s refer to them as junior and senior, so we’ll be sure—or
can we not?
LANGSTON: Your Honor, it’s not junior and senior.
THE COURT: All right. What is it?
LANGSTON: The father is Jesse Westbrook and this gentleman is Toikus
Westbrook. So there aren’t two Toikuses, I’m sorry.
THE COURT: Dr. Jesse Westbrook is the father’s name; is that right?
LANGSTON: Yes, sir. He’s a dentist, so I understand.
THE COURT: All right.
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KEITH: I was given, I believe, it was two addresses initially. One was in
Picayune and one was in Carthage, if I’m not mistaken. We attempted to serve
process on Dr. Toikus Westbrook at both of those locations. He was at neither
address. I did further research in order to obtain a current address for Dr.
Westbrook.
LANGSTON: What kind of research did you do?
KEITH: It’s commonly referred to as a locator or a skip trace, and it’s basically
research, computer research that shows reported addresses of people that
reside at a given address. It’s based on—we call credit header information.
And when I did a search by the name of Toikus Westbrook, using his past
known addresses as a template or as a method to link a newer address, I
discovered an address for him in Germantown, Tennessee. I obtained a phone
number to the address in Germantown, Tennessee, and called. I believe I called
and left a message for Dr. Toikus Westbrook. Someone called me back and
ultimately identified himself as Dr. Toikus Westbrook. I advised him that I had
a delivery for him. He said, you can—I’m going to be leaving my home
address. You can have someone meet me at a pizza parlor—
LANGSTON: All right. Let me back up just a moment. In that conversation
you had, this was a return call you got; is that correct?
KEITH: Yes, sir.
LANGSTON: And the return caller, when you answered the telephone, how
did he identify himself?
KEITH: The conversation was had, and I told him that I had a delivery for Dr.
Toikus Westbrook.
LANGSTON: What did he say originally?
KEITH: He—when I told him that, he said, he’s not available.
LANGSTON: Okay.
KEITH: And I said, well, I’ve got to give this to him. He’s got to sign for it.
And he said, well, what is it about. And I told him it was something to do with
a physician. I had found information that Dr. Westbrook was affiliated with the
Maxim Physicians. Now, in my experience, I basically told him that I had a
delivery regarding Maxim Physicians.
7
LANGSTON: Okay. And so what did he say after that?
KEITH: He said, oh, that’s me. You can bring that to me. And I said, okay. He
said, I—that’s me, as in I am Dr. Toikus Westbrook.
LANGSTON: Right.
KEITH: And I said, okay, I can have someone over at your house within
a—within the hour. And he stated, well, I’m leaving, going to some pizza
place. He gave me the address he also gave me his cell phone number. [sic] It
was at that time that I contacted my Memphis, Tennessee process server,
which is Mr. Gary Murphree, and advised him that we—I had a paper that
needed to be served on a Dr. Toikus Westbrook, and he’d given the
information that he would meet him at the said pizza place.
LANGSTON: All right. So you asked him to then—
KEITH: I asked him then to go to the pizza place and identify Dr. Toikus
Westbrook and serve him the papers.
LANGSTON: And do your notes identified [sic] on what day that service at
that pizza restaurant, was accomplished?
KEITH: It was—I believe that’s going to be April . . . .
¶12. Gary Murphree testified about serving Dr. Toikus Westbrook at Incredible Pizza:
LANGSTON: And Mr. Murphree, do you recall in or around April of 2012,
you were asked to deliver process to Dr. Toikus Westbrook?
MURPHREE: Yes, I do.
LANGSTON: And tell Your Honor what you were asked to do, who asked
you?
MURPHREE: David Keith’s company called me and asked me to serve a
paper, told me where the person would be, what time the person would be
there. I got the papers in hand, went down to the place of—
LANGSTON: Where did you go?
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MURPHREE: It was a pizza place.
LANGSTON: Incredible Pizza?
MURPHREE: Incredible Pizza was the name of it. It was in—off of
Germantown Road there in Memphis, Tennessee.
LANGSTON: And tell your honor what you did after you got there.
MURPHREE: When I got there, I had one of the employees to page . . . Toikus
Westbrook. A black female lady came out and she took me back to the—there
was a little room back there and there was a gentleman sitting there. I asked
him if he was Toikus Westbrook; he said yes. I had the papers in a box. I
opened the box, I handed him the papers, and I left.
¶13. In addition to testifying at the hearing, both Keith and Murphree submitted affidavits
with substantially the same information each had provided in his testimony. Moreover,
Collins introduced evidence related to the “skip trace” Keith had performed to identify the
address and telephone number of Dr. Toikus Westbook. The skip trace indicated that the
Newsum Drive address in Germantown, Tennessee, was a recent address associated with Dr.
Toikus Westbrook.
¶14. Neither Dr. Jesse Westbrook nor Dr. Toikus Westbrook appeared at the motion
hearing or testified. Instead, Dr. Toikus Westbrook relied on the information contained in Dr.
Jesse Westbrook’s affidavits dated May 7, 2012, and June 14, 2012. He also submitted his
own affidavit in support of his motion to dismiss, which was dated November 15, 2012, more
than two weeks after the motion hearing was conducted. In his affidavit, Dr. Toikus
Westbrook averred:
That he is an adult resident citizen of New Orleans, Louisiana, over the age of
eighteen years and legally competent to give this affidavit.
9
That his current residence address has been 1542 Debattista Place, New
Orleans, Louisiana 70131 since 2005.
That his residence telephone number in New Orleans, Louisiana, has been 504-
365-2153 since 2005.
That his father is Jesse Westbrook D.D.S.
That his father, Jesse Westbrook’s, residence address is 1666 Newsum Drive,
Germantown, Tennessee 38138.
That his father, Jesse Westbrook’s, residence telephone number is 901-754-
4472.
That he has never been served with process in this case.
¶15. On February 8, 2013, the trial court entered a judgment of dismissal in favor of Dr.
Toikus Westbrook. The court found Dr. Toikus Westbrook had not been served within the
120-day period and that Collins had not shown “good cause” or “excusable neglect” to justify
an enlargement of time in which to serve him.
DISCUSSION
¶16. 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.”
Rains v. Gardner, 731 So. 2d 1192, 1197-98 (Miss. 1999). When reviewing fact-based
findings, this Court examines “whether the trial court abused its discretion and whether there
was substantial evidence supporting the determination.” Id. at 1197.
¶17. Mississippi Rule of Civil Procedure 4(h) states:
If a service of the summons and complaint is not made upon a defendant
within 120 days after the filing of the complaint and the party on whose behalf
such service was required cannot show good cause why such service was not
made within that period, the action shall be dismissed as to that defendant
10
without prejudice upon the court’s own initiative with notice to such party or
upon motion.
M.R.C.P. 4(h).
¶18. If a process server has executed a return properly, there is a presumption that service
of process has occurred. Pointer v. Huffman, 509 So. 2d 870, 872 (Miss. 1987). The
plaintiff’s attorney in this case, because Murphree had executed an Affidavit of Service, had
good reason to believe that service of process had been accomplished upon Dr. Toikus
Westbrook. However, this presumption that service has been effected is rebuttable through
the use of extrinsic evidence, including the testimony of the party who is contesting service.
McCain v. Dauzat, 791 So. 2d 839, 842 (Miss. 2001). Here, Murphree executed an Affidavit
of Service in which he swore that he had served the summons and the complaint on Dr.
Toikus Westbrook on April 13, 2013. Thus, Collins was entitled to a presumption that service
of process was effected. But, Dr. Toikus Westbrook then swore, via affidavit submitted to
the trial court, that he did not receive service of process. Moreover, Dr. Jesse Westbrook
swore, also via affidavit, that the process server served both the summons and complaint on
him at Incredible Pizza in Germantown, Tennessee. Therefore, the trial court did not abuse
its discretion in determining that process was not served on Dr. Toikus Westbrook, but that
process instead was served on Dr. Jesse Westbrook, and that Dr. Toikus Westbrook had thus
rebutted the presumption that service of process was effected properly by Murphree.
¶19. We turn to the trial court’s ruling that Collins failed to show good cause why service
was not made within 120 days. The Rules of Civil Procedure provide that if a plaintiff can
establish “good cause” for failing to serve process on a defendant within 120 days of filing
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his or her complaint, dismissal is not an appropriate remedy. M.R.C.P. 4(h); see Webster v.
Webster, 834 So. 2d 26, 28 (Miss. 2002) (citing Watters v. Stripling, 675 So. 2d 1242, 1244
(Miss. 1996)) (“The rule has also been interpreted to require that, if the defendant is not
served within 120 days, the plaintiff must either refile the complaint before the statute of
limitations expires or show good cause; otherwise, dismissal is proper.”). “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.’” Webster, 834 So. 2d at 28 (citations omitted). Moreover,
to demonstrate “good cause,” the plaintiff must show that a diligent effort was made to serve
the defendant in a timely manner. Foss v. Williams, 993 So. 2d 378, 379 (Miss. 2008). The
plaintiff must show more than that service failed due to “simple inadvertence or mistake of
counsel or ignorance of the rules.” Watters, 675 So. 2d at 1243.
¶20. This Court has held that “good cause is likely (but not always) to be found when the
plaintiff’s failure to complete service in timely fashion is a result of the conduct of a third
person, typically the process server.” Holmes v. Coast Transit Auth., 815 So. 2d 1183, 1186
(Miss. 2002) (quoting 4B Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1137, at 342 (3d ed. 2000)). A plaintiff also may show “good cause” if “the
defendant has evaded service of process or engaged in misleading conduct, the plaintiff has
acted diligently in trying to effect service or there are understandable mitigating
circumstances . . . .” Holmes, 815 So. 2d at 1186 (quoting 4B Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure § 1137, at 342 (3d ed. 2000)). What amounts to
12
‘good cause’ under any particular set of circumstances is necessarily fact-sensitive.” Lindsey
v. United States R.R. Bd., 101 F.3d 444, 446 (5th Cir. 1996).
¶21. In this case, Collins adduced evidence showing: (1) that through the course of Keith’s
research, the address on Newsum Drive in Germantown, Tennessee, appeared as a current
address for Dr. Toikus Westbrook; (2) that through the course of Keith’s research, the
telephone number associated with the Newsum Drive home in Germantown was listed as a
residential telephone number associated with Dr. Toikus Westbrook; (3) that Keith called the
telephone number associated with the Newsum Drive home and left a message on the
answering machine for Dr. Toikus Westbrook; (4) that someone who had received that
message at that telephone number had returned Keith’s call; (5) that Keith told the person on
the telephone that he had a delivery for Dr. Toikus Westbrook from “Maxim Physicians,” Dr.
Toikus Westbrook’s employer; (6) that the person on the telephone identified himself as Dr.
Toikus Westbrook; (7) that after process server Murphree arrived at Incredible Pizza, he
paged “Dr. Toikus Westbrook;” (8) that a lady escorted him to a back room where he served
process on a man who identified himself as Dr. Toikus Westbrook; and (9) that Murphree
executed an Affidavit of Service in which he stated that he had served the summons and the
complaint on Toikus Westbrook on April 13, 2013.
¶22. We find that the trial court abused its discretion by finding that Collins failed to show
good cause. The record reflects that Collins made a sufficient showing of good cause for
having failed to serve Dr. Toikus Westbrook within 120 days of filing her complaint. Collins
presented compelling evidence that there were “understandable mitigating circumstances”
13
excusing Collins’s failure to serve Dr. Toikus Westbrook within 120 days. It is undisputed
that Collins’s counsel filed suit within the time allowed by the applicable statute of
limitations and assigned to a trusted employee the task of effecting service of process. Due
to “very extreme personal problems,” this person failed to complete the assignment. Upon
discovering this deficiency, the attorney immediately took appropriate steps to effect service
within what remained of the 120-day period.
¶23. The record shows overwhelmingly that Collins’s failure to make timely service of
process on Dr. Toikus Westbrook was caused entirely by “the conduct of a third person,”
namely, Dr. Jesse Westbrook. Holmes, 815 So. 2d at 1186 (quoting 4B Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure § 1137, at 342 (3d ed. 2000)). The trial
court’s finding that Dr. Jesse Westbrook did not misrepresent his identity was not supported
by substantial evidence and was an abuse of discretion. The actions of Dr. Jesse Westbrook
and/or Dr. Toikus Westbrook were, at least, misleading. By returning Keith’s call and by
agreeing to receive a delivery from Dr. Toikus Westbrook’s employer, Dr. Jesse Westbrook
interfered with and actually obstructed Collins’s attempts to serve process on Dr. Toikus
Westbrook. But for Dr. Jesse Westbrook’s subterfuge, Collins may have been able to serve
the real Dr. Toikus Westbrook within the 120-day period, or she would have been able to file
a timely and possibly successful request in the trial court for an extension of time in which
to serve Dr. Toikus Westbrook. The professional process server hired by the plaintiff’s
attorney, and, ultimately, at the expense of the plaintiff, was misled by what can be viewed
only as the deliberate deception of a third party who turned out to be a close relative of the
14
defendant. This third party’s corrupt conduct caused a false return to be made on process
issued by and returned to a Mississippi trial court. No litigant should be rewarded for such
treachery.
¶24. The record does not suggest that Collins had reason to suspect that process had been
served on any person other than Dr. Toikus Westbrook. After having the summons and
complaint served on the person she had been led to believe was Dr. Toikus Westbrook, the
plaintiff reasonably would not have continued to try to serve him. After all, Murphree had
executed an Affidavit of Service, in which he said that he had served the summons and the
complaint on Dr. Toikus Westbrook on April 13, 2012. The Affidavit of Service creates a
presumption that service was properly executed and it is probative of the plaintiff’s good-
faith belief that the defendant had been served, notwithstanding the trial court’s finding that
Dr. Toikus Westbrook, in fact, had not been served process.
¶25. Similarly, in Foss v. Williams, 993 So. 2d 378, 379 (Miss. 2008), the defendant was
served one day after the 120-day period had expired. The plaintiff’s counsel argued that,
although he had associated local counsel who had been responsible for effecting service,
local counsel had neglected to serve the defendants, and counsel did not discover the
omission until 118 days after the complaint had been filed. Id. As in this case, when counsel
discovered the omission, counsel immediately sought to have the defendants served. Id.
Local counsel later withdrew from the case. Id. This Court held that “good cause” had been
proved because the failure of service was caused by the inaction of another attorney who later
15
had withdrawn from the case, and because counsel had taken immediate action to effect
service upon discovering the problem. Id. at 379-80.
¶26. The cases cited by the dissent provide poor support for its conclusion that Collins
failed to show good cause. Contrary to the dissent’s position that this Court should confine
its review in this case to the first 118 days, this Court examines what occurred during the
entire 120-day period to assess whether good cause was shown. Unlike the facts in this case,
in Heard and Holtzman, no attempt at service was made within 120 days. Heard v. Remy,
937 So. 2d 939, 944 (Miss. 2006); In re Holtzman, 823 So. 2d 1180, 1181 (Miss. 2002). In
this case, Collins attempted service within 120 days, but service was thwarted by the
deceptive acts of a third person. Unlike in Heard and Holtzman, Collins had no reason to
suspect that timely service had not been achieved. And Copiah County School District v.
Buckner, 61 So. 3d 162, 164 (Miss. 2011), involved misconduct by a process server, not
deceptive acts by the defendant’s relative in an effort to obstruct service of process.
¶27. We hold that Collins made a sufficient showing of good cause for her failure to
accomplish service of process on Dr. Toikus Westbrook within 120 days and that the trial
court abused its discretion by finding otherwise.
¶28. Alternatively, Collins argues that, if Dr. Toikus Westbrook rebutted the presumption
that service was effected, and if she also had not established “good cause” in so doing, she
was entitled to an extension of time under Rule 6(b)(2) of the Mississippi Rules of Civil
Procedure, which provides:
When by these rules or by notice given thereunder or by order of court an act
is required or allowed to be done at or within a specified time, the court for
16
cause shown may . . . upon motion made after the expiration of the specified
period permit the act to be done where failure to act was the result of
excusable neglect.
M.R.C.P. 6(b)(2).
¶29. Collins advanced her request for an extension of time in multiple filings in the trial
court and during the hearing on Dr. Toikus Westbrook’s motion to dismiss. In her “Response
to Motion to Dismiss,” which was filed June 15, 2012, Collins argued that “[i]n the
alternative, Plaintiffs request additional time to properly effectuate service on the Defendant
[Toikus Westbrook].” Additionally, during the October 30, 2012, hearing regarding Dr.
Toikus Westbrook’s Motion to Dismiss, Collins moved ore tenus for an extension of time:
[W]e took extraordinary, extreme steps to make sure process was served within
the 120 day period, and we had every good faith belief that process had been
served on Dr. Toikus Westbrook, because of all the testimony that the Court
has – has just heard.
And we only first became aware that they’ve alleged Dr. Toikus Westbrook
had not been served, and when they filed their motion to dismiss in May. And
we timely and immediately responded to that with, number one, we think we
served him, but if that’s not him, that’s when we asked the Court . . . . That’s
when we asked the Court under Rule 4(c) [sic], in the alternative, for
additional time to serve Dr. Toikus Westbrook, if, in fact, he didn’t receive
service.
In a brief she filed on November 12, 2012, after the hearing, Collins argued: “Alternatively,
the UNDISPUTED Facts Require the Court to Allow Plaintiffs Additional Time to Serve the
[Toikus Westbrook].” Finally, in a brief filed December 7, 2012, Collins maintained:
Plaintiffs have overwhelmingly shown that good cause exists to extend the
120-day time period within which to effect service of process. As such, a
dismissal with prejudice is not justified. Plaintiffs therefore respectfully
request this Court to deny Defendant’s Motion to Dismiss and grant to
Plaintiffs an extension of time to serve the Defendant, Dr. Toikus Westbrook.
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¶30. The trial court denied Collins’s motion for an enlargement of time upon a finding that
Collins had failed to show excusable neglect. This Court has held that the standards for
deciding whether a plaintiff has demonstrated “good cause” under Rule 4(h) and “excusable
neglect” under Rule 6(b)(2) are virtually identical. Watters, 675 So. 2d at 1244 (“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.”) (internal citations omitted). Because Collins has established
good cause for her failure to serve Dr. Toikus Westbrook within 120 days of filing her
complaint, she also has proved excusable neglect, entitling her to an extension of time.
Collins showed that a professional process server determined that the Newsum Drive home
in Germantown, Tennessee, was Dr. Toikus Westbrook’s recent residence. Keith called the
residential telephone number associated with this address and left a message for “Dr. Toikus
Westbrook.” Someone returned his call from that number. Keith informed the caller that he
had a delivery for Dr. Toikus Westbrook from Maxim Physicians, Dr. Toikus Westbrook’s
employer. Finally, Keith sent Murphree to Incredible Pizza to serve Dr. Toikus Westbrook
process for this suit. Murphree then executed an Affidavit of Service. These facts establish
excusable neglect justifying the failure to serve Dr. Toikus Westbrook and entitling Collins
to an extension of time to in which perfect service.
CONCLUSION
¶31. In sum, we find that Perriece Collins offered sufficient proof of good cause explaining
her failure to serve Dr. Toikus Westbrook within 120 days, as required by Rule 4(h) of the
18
Mississippi Rules of Civil Procedure. Moreover, Collins established excusable neglect, as
articulated in Rule 6(b) of the Mississippi Rules of Civil Procedure, entitling her to an
extension of time to serve process on Dr. Toikus Westbrook. Therefore, we reverse the
judgments of the Court of Appeals and the Circuit Court of Leake County. We remand this
case to the Circuit Court of Leake County for further proceedings.
¶32. REVERSED AND REMANDED.
WALLER, C.J., RANDOLPH, P.J., AND KING, J., CONCUR. DICKINSON,
P.J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN
OPINION. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY LAMAR, J. MAXWELL, J., NOT PARTICIPATING.
COLEMAN, JUSTICE, DISSENTING:
¶33. Today’s majority opinion drives Mississippi’s appellate standard-of-review
jurisprudence as far off the tracks as one might ever wish to see. Not only does the majority
find the trial court erred on an issue we review only for abuse of discretion – the presence of
absence of good cause for failure to serve process – but the majority, even more egregiously,
holds the trial court erred in its witness-credibility determinations, which should be subject
to reversal only upon a showing of manifest error. Never before today have we held that
good cause for delay in serving process exists when the plaintiff’s attorney entrusted the job
of service of process to an employee who failed to take steps to serve process and in the
absence of adequate attorney oversight. In fact, today’s case arguably overrules several
cases, discussed below, in which we have held the opposite. After today, an attorney who
hands off the job of service of process to an employee and fails to diligently monitor the
progress of service can claim good cause despite the failure. Further, the majority tacitly
19
finds error in the trial judge’s determination that a witness who testified in his presence
lacked credibility. Accordingly, I respectfully dissent.
¶34. “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.” Holmes v. Coast Transit Auth., 815 So. 2d 1183, 1185 (¶ 6) (Miss. 2002) (quoting
Rains v. Gardner, 731 So. 2d 1192, 1197-98 (Miss. 1999)). In reviewing that fact-based
finding, the Court examines only “whether the trial court abused its discretion and whether
there was substantial evidence in supporting the determination.” Rains, 731 So. 2d at 1197.
¶35. The trial court determined in its Final Judgment, and the record confirms, that Collins
wholly failed to take any action to serve process until Day 118 of the 120-day period. Collins
filed her complaint on December 16, 2011. Therefore, the 120-day period for service of
process ended on April 14, 2012. On April 12, 2012, plaintiff’s counsel first contacted a
process server regarding serving Dr. Toikus Westbrook. According to the affidavit of the
process server, service was first thereafter attempted at Dr. Toikus Westbrook’s known
addresses of record in Carthage and Picayune, but the attempts failed. Again according to
the process server’s affidavit, he then ran a skip trace which revealed several possible
addresses for Dr. Toikus Westbrook, which ranged geographically from Memphis,
Tennessee, to New Orleans, Louisiana.
¶36. In the case sub judice, Collins’s attorney made no attempt to serve process until 118
of the 120 days had passed, and Collins did not file a motion to extend the 120-day period
until after it had expired. The question, then, we should consider is whether the trial judge
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erred in finding good cause did not exist for the 118-day delay. I do not think he did. While
not dispositive, I first note the failure of the plaintiff to file a motion for an extension of the
120-day period prior to its expiration. “While there is no actual requirement that a motion
for additional time be filed, ‘a plaintiff who – prior to expiration of the service period – files
a motion representing that he or she has been unable to serve process, will more likely
succeed in demonstrating diligence than a plaintiff who does nothing.’” Copiah Cty. Sch.
Dist. v. Buckner, 61 So. 3d 162, 168 (¶ 21) (Miss. 2011) (quoting Montgomery v.
SmithKline Beecham Corp., 910 So. 2d 541, 546 (¶ 15) (Miss. 2005)). As noted by the trial
judge, when contacted to serve process two days before the expiration of the 120-day period,
the process server informed Collins’s counsel that, in light of the multiple possible addresses
for Dr. Toikus Westbrook, “I think the chances of locating and serving him today are very
slim.” Despite the warning and having only two days to act, Collins did not file a motion for
an extension of the 120-day deadline.
¶37. Furthermore, as found by the trial court and as the majority writes, Collins’s attorney
entrusted the job of serving process to a legal assistant. Nothing in the record indicates that
counsel monitored the progress of the employee in accomplishing the task until April 12,
2012, or Day 118. The failure of counsel to monitor his legal assistant’s progress in
completing the assigned task of service of process is at most “simple inadvertence or mistake
of counsel,” which does not rise to the level of good cause or excusable neglect. LeBlanc
v. Allstate Ins. Co., 809 So. 2d 674, 677 (¶ 12) (Miss. 2002) (emphasis added) (quoting
Watters v. Stripling, 675 So. 2d 1242, 1243 (Miss.1996)).
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¶38. In Heard v. Remy, 937 So. 2d 939 (Miss. 2006), the plaintiff, Tiffany Heard, filed a
complaint against the defendant, Keith Remy, for personal injuries allegedly resulting from
a motor vehicle collision. Id. at 940 (¶ 2). Heard filed her complaint and process issued five
days before the statute of limitations expired. However, Heard failed to serve process before
the expiration of the mandated 120-day time period. Id. After the expiration of the 120-day
period, Heard filed a motion for an extension of time to serve process, and the trial court
granted the motion without making a ruling as to whether good cause existed for her failure
to serve within the original 120 days. Heard successfully served process during the time
allowed in the trial court’s granted extension. Id. at 940 (¶ 3). Remy then filed a motion for
judgment on the pleadings, contending that the statute of limitations ran in the interim
between the expiration of the original 120 days and the trial court granting the extension of
time to serve process. Id. at 941 (¶¶4, 15). In ruling on the motion and dismissing Heard’s
complaint as time-barred, the trial court further found that Heard had not shown good cause
for failing to effect timely service of process during the original 120-day period. Id. at 941
(¶ 5). On appeal, we affirmed, holding that the trial court did not abuse its discretion because
the evidence showed that the failure to serve stemmed from a miscommunication between
Heard’s counsel and counsel’s own employee. Id. at 943-44 (¶ 19-21).
¶39. Like Collins in the case sub judice, Heard contended that the trial judge erred in
finding an absence of good cause for failing to serve process during the 120-day time period.
Heard, 937 So. 2d at 943 (¶ 19). Also like Collins, Heard’s counsel relied on an employee
to see to it that process was served. Id. at 943 (¶ 20). However, unlike today’s case, in
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Heard the plaintiff never attempted service within the 120-day period, Id. at 944 (¶ 20),
where here, Collins finally attempted service of process after 118 days had elapsed. I do not
view the two-day difference as much of a distinction. The question the trial judge answered,
and that we should review, is whether Collins has demonstrated good cause for failure to
serve process within the 120-day period when counsel did nothing for the first 118 days and
counsel’s neglect demonstrates a lack of diligence and led to the failure to timely serve. The
failure that leads to the quest for good cause is not the failure to attempt service within 120
days, but the failure to achieve service. One might ask whether the majority would find good
cause if a plaintiff failed to attempt service until the 23rd hour of the 120th day, or the 12th
hour of the 120th day, or the beginning of the 120th day, and so forth. Whether the delay
equals 118 of the 120 days or all of the 120 days, under Heard the answer is the same. In
holding that the trial court did not abuse its discretion in finding no good cause existed, the
Heard Court wrote, “The failure to attempt process on Remy may have been the result of a
lack of communication and follow-up within the offices of Heard’s counsel. The continuing
failure to attempt service for four months, without adequate explanation, shows a lack of
diligence beyond excusable neglect.” Id. at 944 (¶ 20). In the case sub judice, Collins fails
to explain why her counsel did not communicate and follow up with the legal assistant
assigned to effect service of process. That said legal assistant may have been suffering
through some sort of personal issues does not explain counsel’s inadvertence and failure to
monitor. In the instant case, Collins demonstrated a marked lack of diligence by doing
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nothing for 118 days and by failing to file a motion for an extension of the 120-day deadline
upon learning at the time that process had not in fact been served.
¶40. In In re Holtzman, 823 So. 2d 1180 (Miss. 2002), plaintiff attempted to show good
cause by contending that the summons and complaint had been misfiled by a new file clerk.
Id. at 1182 (¶ 4). The Holtzman Court characterized the events as “clear an example as one
could wish of ‘simple inadvertence or mistake of counsel.’” Id. at 1183 (¶ 9). In language
that negates the majority’s attempt to excuse Collins’s 118-day failure by writing that Collins
had no reason to believe process has not been served, (Maj. Op. at ¶ 26), the Holtzman Court
continued, “[O]rdinary attention to his caseload would have led Ward to notice that he had
received no answer from Grand Casino and to check his case file.” Holtzman, 823 So. 2d
at 1183. While, again, Collins asserts that the legal assistant tasked with serving process was
suffering through personal problems that affected her performance, the lack of service of
process was something that would have been discovered sooner with what the Holtzman
Court described as “ordinary attention.”
¶41. In Copiah County School District v. Buckner, 61 So. 3d 162 (Miss. 2011), the Court
found an abuse of discretion, reversed the trial judge’s failure to dismiss a case for failure
to timely serve process, and rendered judgment in favor of the defendants. Charles Buckner
filed a personal injury complaint against the Copiah County School District and Kenneth
Funches, a bus driver, after he allegedly received injuries from a collision with a school bus
driven by Funches. Buckner, 61 So. 3d at 164 (¶ 3). Buckner had summonses issued for the
defendant, but failed to serve them. Id. More than a year after the filing of the complaint,
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the court ordered a status conference with Buckner’s counsel. Id. at 164 (¶ 4). Prior to the
hearing, Buckner’s counsel filed an application for a clerk’s entry of default with an
accompanying affidavit averring that process had been served. Id. Apparently, the process
server reported to Buckner’s counsel that process had been served when it in fact had not.
Id. at 164 (¶ 5). When Buckner’s counsel learned the truth, he withdrew his application for
entry of default. On February 3, 2009, the trial judge orally granted additional time to serve
process. Id. at 164-165 (¶¶ 5, 7). Buckner served the school district and Funches on June
4 and June 5, 2009, respectively. Id. at 165 (¶ 7). The extension of time granted by the trial
court ended on June 2, 2009. Id. at 165 (¶ 10). Buckner’s counsel claimed that he did not
receive a copy of the order granting time until June 4, 2009, despite attempts by his legal
assistant to obtain it. Id. at 165 (¶ 9). The legal assistant testified at the hearing on the
defendants’ motions for summary judgment that someone at the clerk’s office had told her
the order had been signed and promised to fax it to her, but that she never received a faxed
copy until June 4. She told Buckner’s attorney that she had been told the order had been
signed, but the attorney did not ask when. Id. at 165 (¶ 10). The trial judge found that good
cause existed for Buckner’s failure to timely serve process and denied the dispositive
motions. Id. at 165 (¶ 11).
¶42. On appeal, the Buckner Court held that the trial court had abused its discretion and
reversed and rendered the case. Id. at 171 (¶ 31). In holding that no good cause existed, the
Court wrote as follows:
Buckner’s counsel asserted that he had relied upon the process server’s
assertion that the defendants had been served. Counsel’s belief that service
25
had been achieved was evidenced by his filing of an affidavit to that effect
with an application for entry of default when the defendants had failed to
answer. However, a more attentive review of the file would have informed
counsel that, because there was no return of service for the defendants, the
reason they had failed to answer was that they had not been served with
process. Evidently, Buckner’s counsel did not check for a return of service
until after the statute of limitations had expired, after the trial court had set a
date for a status hearing, after he had filed an application for entry of default,
and after opposing counsel, upon discovering the lawsuit, had notified him that
their clients never had been served. In Heard, the Court found that counsel’s
lack of communication and follow-up concerning service constituted mistake
or inadvertence. Heard, 937 So. 2d at 944. The conduct at issue here likewise
manifested a lack of diligence and amounts to mistake or inadvertence. We
find that the trial court abused its discretion in refusing to set aside the
extension of time, because Buckner did not present substantial evidence to
support a finding of good cause for the failure to serve the defendants within
the 120 - day period.
Buckner, 61 So. 3d at 168 (¶ 20). Accordingly, the unanimous Buckner Court reversed the
discretionary ruling of the trial court finding good cause for failure to serve process because,
despite representations from the process server that process had been served, counsel did not
check for a return of service of process. If the described failure to monitor in Buckner
mandated a reversal of the trial judge’s discretionary finding of good cause, then the failure
to monitor in today’s case suffices to uphold the trial court’s discretionary finding of a lack
of good cause. The majority would distinguish Buckner due to the fact that the attorney’s
inadvertence in Buckner included relying on representations from a process server rather
than an employee, but the distinction works against the majority. If the Court held that a trial
court abused its discretion in finding good cause existed when counsel had failed to follow
up on representations from a nonemployee, then certainly we should – and clients should –
be able to expect attorneys to keep track of their own employees’ performance or
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nonperformance, as the case may be, of their assigned tasks, and hold that a trial court did
not abuse his discretion in finding an absence of good cause when an attorney fails to
monitor the progress of his employee.
¶43. Here, Collins’s reliance on Foss v. Williams, 993 So. 2d 378 (Miss 2008), to excuse
the conduct of his legal assistant is misplaced for two reasons. First, Foss does not stand for
the proposition that taking speedy action at the close of the 120-day window conclusively
establishes good cause. Instead, the Foss Court merely affirmed that a trial court’s decision
“that it would not dismiss Williams’ complaint with respect to Dr. Foss based on [the trial
court’s] finding that good cause existed for Williams’ failure to serve process timely” was
not an abuse of discretion. Foss, 993 So. 2d at 380 (¶ 9). Second, Foss dealt with a
miscommunication between plaintiff’s counsel and associated counsel as to who would be
responsible for effecting service. Id. at 379 (¶5). In the instant case, the trusted legal
assistant was directly employed by Collins’ counsel, and she simply failed to carry out the
duty assigned to her by her employer. For 118 days, counsel failed to follow up with his
employee to ensure that service had been commenced against opposing parties. Such an
oversight cannot be said to be diligent such that a plaintiff may claim “good cause why such
service was not made” within the 120 days provided by Rule 4(h).
¶44. In today’s holding that the plaintiff demonstrates good cause for failure to serve
process because the employee of plaintiff’s counsel “failed to complete the assignment” of
serving process, (Maj. Op. at ¶ 22), the majority issues a holding contrary to our standard of
review and contrary to all of the above-described cases that hold that similar failures by
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process servers and attorneys’ employees do not establish good cause for failure to serve
process. What we heretofore have deemed simple inadvertence and mistake of counsel not
rising to the level of good cause has now become good cause. Attorneys who fail to pay
“ordinary attention” to their caseloads may not lay claim to good cause and be freed from the
consequences of not paying attention. Defendants in aging cases, with the memories of
witnesses fading and evidence aging, will be subject to service of process for a longer period
of time, even though the cause for the delay before today did not amount to good cause.
¶45. The majority in large part bases its position that good cause for failure to serve the
correct Dr. Westbrook rests in the conduct of Dr. Jesse Westbrook when the process server
spoke with him in an attempt to locate Dr. Toikus Westbrook. The process server testified
that Dr. Jesse Westbrook identified himself as Dr. Toikus Westbrook. The trial judge heard
the same testimony and observed the process server as he testified. In his final judgment, the
trial judge wrote as follows concerning whether Dr. Jesse Westbrook misrepresented his
identity:
This Court finds that once process server, Davy Keith, had located an address
for Dr. Toikus Westbrook in Germantown, Tennessee, he contacted Gary
Murphree, a process server in Germantown, Tennessee, to serve process on Dr.
Toikus Westbrook. Mr. Keith called Dr. Jesse Westbrook and left a message.
Thereafter, Dr. Jesse Westbrook returned Mr. Keith’s call and told Mr. Keith
that Dr. Toikus Westbrook was “not available.” Mr. Keith explained that he
had a delivery for Dr. Toikus Westbrook from Dr. Toikus Westbrook’s
employer, Maxim Physicians. Although the dialogue between Mr. Murphree
and Dr. Jesse Westbrook at the pizza parlor where they met is disputed,
Plaintiffs assert that Dr. Jesse Westbrook told him he was Dr. Toikus
Westbrook. However, on cross-examination, Mr. Murphree acknowledged
that their strategy was a subterfuge designed to deceive Dr. Jesse Westbrook
to induce him to appear at the pizza parlor to receive the summons. In
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addition, Dr. Jesse Westbrook testified by affidavit that Mr. Murphree asked
him if he was “Dr. Westbrook,” who, of course, he is.
The trial judge as finder of fact on the issue made credibility determinations and did not
credit the testimony that Dr. Jesse Westbrook had misidentified himself as Dr. Toikus
Westbrook. We leave “the finding of fact on the existence of good cause or excusable
neglect for delay in serving process under Rule 4(h).” Stutts v. Miller, 37 So. 3d 1, 3 (¶ 7)
(Miss. 2010). What the majority described as a record that “shows overwhelmingly that
Collins’s failure to make timely service of process on Dr. Toikus Westbrook was caused
entirely by ‘the conduct of a third person” (Maj. Op. at ¶ 23), is rather testimony from one
witness that the trial judge heard, observed, and rejected on grounds of credibility. We
reverse the trial judge as finder of fact in the determination of good cause only when the trial
judge’s “discretion is abused or is not supported by substantial evidence,” and neither is the
case today.
¶46. More to the point – the majority is reversing the trial judge on an issue of witness
credibility. In order to find the trial judge erred in finding no good cause or excusable
neglect, the majority finds – as a matter of fact – that Dr. Jesse Westbrook acted to trick the
process server into thinking that he, Jesse, was Toikus. The majority refers to Dr. Jesse
Westbrook’s “subterfuge,” and writes that he engaged in “deliberate deception,” and even
goes so far as to find Dr. Jesse Westbrook guilty of “corrupt conduct” and “treachery.” (Maj.
Op. at 23). As shown in the above-quoted excerpt from the trial judge’s ruling, the trial
judge considered the argument and rejected it because he did not find the process servers to
be credible. I can find no reported case wherein the Mississippi Supreme Court has
29
considered the deference owed to a circuit court judge making credibility determinations in
the context of the failure to serve process. Of course, as cited above, the general standard
of review for findings of fact in the Rule 4(h) context is that of abuse of discretion and
substantial evidence, but in every other context I could identify, we consider credibility
determinations made by the finder of fact to be in error only upon a showing of manifest
error, that the findings of the trial court are clearly erroneous, or that the findings are against
the overwhelming weight of the evidence. In reviewing challenges to the use of peremptory
strikes under Batson v. Kentucky, 476 U.S. 79 (1986), we have acknowledged the role of the
trial judge in making credibility determinations and “will not overrule a trial court on a
Batson ruling unless the record indicates that the ruling was clearly erroneous or against the
overwhelming weight of the evidence.” Hicks v. State, 973 So. 2d 211, 218 (¶ 23) (Miss.
2007) (quoting Thorson v. State, 721 So. 2d 590, 593 (¶ 4) (Miss. 1998)). Chancellors often
act as the fact-finders in litigation pending before them, and we have clearly established that
when reviewing a chancellor’s credibility determinations, “Our standard of review is indeed
deferential, as we recognize that a chancellor, being the only one to hear the testimony of
witnesses and observe their demeanor, is in the best position to judge their credibility.”
Owen v. Owen, 928 So. 2d 156, 168 (¶ 35) (Miss. 2006) (quoting In re Estate of Carter, 912
So. 2d 138, 143 (¶ 18) (Miss. 2005)). We afford great deference to administrative agencies’
determinations of witness credibility. See McFadden v. Miss. State Bd. of Med. Licensure,
735 So. 2d 145, 157 (¶ 46) (Miss. 1999). Circuit court judges sitting without juries are
30
afforded the same deference as chancellors. City of Jackson v. Perry, 746 So. 2d 373, 376
(¶ 9) (Miss. 2000).
¶47. To be clear, I do not think the trial judge in the case sub judice abused his discretion
– if indeed abuse of discretion is the correct standard – in noting the duplicitous methods
employed by the process server and therefore finding the testimony of the process server
incredible. Under any standard of review higher than de novo, I cannot – not having
observed the witness or been present for his testimony – agree that the trial judge erred in
finding against the plaintiff on the factual question of whether Dr. Jesse Westbrook misled
the process server. I certainly cannot so easily as does the majority make that credibility
determination from the typed record. (The majority does not explicitly find the testimony in
question to be credible or incredible, but the majority cannot ascribe the above-quoted terms
to Dr. Jesse Westbrook’s alleged actions and hold, as it does, that the trial judge erred on the
issue without finding it credible and, correspondingly, that the trial judge erred in ruling
otherwise.) However, I would also clarify that, in the context of reviewing whether the trial
court properly found good cause or the lack thereof for the timely service of process, the trial
court’s determinations of witness credibility will be reversed only upon a showing that they
are clearly erroneous.
¶48. For the foregoing reasons, I dissent.
LAMAR, J., JOINS THIS OPINION.
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