Lewis v. Forest Family Practice Clinic, P.A.

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Docket Number

No. 2011–CT–00828–SCT.

Attorney(S)

James Howard Thigpen, attorney for appellant. John Burley Howell, III, Mildred M. Morris, Timothy Lee Sensing, Jackson, attorneys for appellee.

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Smart Summary

Factual and Procedural Background

R.J. Lewis was a patient of Dr. John Paul Lee from May 19, 2008, until his death on May 23, 2008. On June 1, 2010, Barbara Lewis, as Administratrix of R.J. Lewis's estate and on behalf of the wrongful death beneficiaries, filed a complaint in the Circuit Court of Scott County against Dr. Lee and Forest Family Practice Clinic, P.A. Process Server Gary Windham purportedly served process on September 21, 2010, indicating personal service on Dr. Lee and Forest Family Practice. However, Dr. Lee contended that the process was actually served on the clinic's cashier, Winnie McMullan, who lacked authority to accept service and was unaware that she was receiving legal documents. Dr. Lee denied receiving the documents personally or authorizing anyone to accept service on his behalf. Based on this, Dr. Lee and Forest Family Practice filed a motion to dismiss for insufficient service of process, which the trial court granted, dismissing the case with prejudice. The plaintiff appealed, and the Court of Appeals reversed the dismissal, finding good cause existed under Mississippi Rule of Civil Procedure 4(h) despite improper service. The defendants then appealed to the Supreme Court of Mississippi.

Legal Issues Presented

Whether the Court of Appeals erred in considering the plaintiff's good-cause argument under Rule 4(h) when that issue was not raised at the trial court level.
Whether the Court of Appeals improperly made findings of fact on appeal.
Whether the trial court committed plain error in granting the motion to dismiss for insufficient service of process.
Whether there was substantial evidence supporting the trial court's determination that good cause did not exist for improper service within 120 days.

Arguments of the Parties

Appellees' (Dr. Lee and Forest Family Practice) Arguments

The plaintiff did not raise the good-cause argument under Rule 4(h) at trial, making its consideration on appeal improper.
The Court of Appeals improperly made factual findings regarding service of process.
The trial court did not commit plain error in granting the motion to dismiss.
There is substantial evidence that good cause did not exist to excuse improper service within the required time frame.

Appellant's (Barbara Lewis) Arguments

The opinion does not contain a detailed account of the appellant’s legal arguments beyond the procedural posture and issues addressed by the courts.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Johnson v. Rao, 952 So.2d 151 (Miss. 2007)	Standard of review for motions to dismiss and definition of authorized agent for service of process.	Used to affirm that service must be made on an authorized agent, not mere employees, and to apply de novo review for dismissal motions.
Saxony Mills v. Wagner & Co., 94 Miss. 233, 47 So. 899 (1909)	Definition of an agent authorized to accept service of process as one vested with general authority and discretion.	Supported the conclusion that the clinic's cashier was not authorized to accept service.
Mississippi Rules of Civil Procedure Rule 4(d) and 4(h)	Requirements for service of process and dismissal for failure to serve within 120 days absent good cause.	Applied to evaluate sufficiency of service and procedural requirements for dismissal.
Spurgeon v. Egger, 989 So.2d 901 (Miss. Ct. App. 2007)	Consideration of good cause to avoid dismissal for insufficient service when issue was raised at trial.	Distinguished to show that good cause was properly raised and decided at trial there, unlike in the present case.
Estate of Myers v. Myers, 498 So.2d 376 (Miss. 1986)	Procedural bar on raising issues for the first time on appeal.	Applied to hold that good-cause argument not raised at trial could not be considered on appeal.
Holmes v. Coast Transit Auth., 815 So.2d 1183 (Miss. 2002)	Dismissals for insufficient service of process under Rule 4(h) should be without prejudice.	Modified trial court’s dismissal from with prejudice to without prejudice.

Court's Reasoning and Analysis

The court first affirmed the trial court’s finding that service of process was insufficient because the process server left documents with the clinic’s cashier, Winnie McMullan, who lacked authority to accept service and was unaware the documents were legal papers. The court emphasized the requirement under Rule 4(d) that service must be made on an authorized agent vested with general authority, not a mere employee. Both Dr. Lee and McMullan testified that McMullan was unauthorized, supporting the trial court’s conclusion.

The Court of Appeals had reversed the dismissal based on a finding of good cause under Rule 4(h) despite improper service. However, the Supreme Court found that the plaintiff never raised the good-cause argument at trial, and thus it was procedurally barred from consideration on appeal. The court distinguished the Court of Appeals’ reliance on Spurgeon v. Egger, noting that in Spurgeon the issue was properly raised and decided at trial, unlike here. The court reiterated the well-established Mississippi rule that issues not raised at trial cannot be raised for the first time on appeal.

Accordingly, the court reversed the Court of Appeals’ decision, reinstated and affirmed the trial court’s dismissal for insufficient service, but modified the dismissal to be without prejudice in accordance with precedent.

Holding and Implications

The Supreme Court of Mississippi reversed the Court of Appeals' decision and reinstated and affirmed the trial court’s dismissal of the case for insufficient service of process, modifying the dismissal to be without prejudice.

The direct effect of this decision is that the plaintiff’s case was dismissed due to improper service, and the dismissal does not bar refiling. The court’s ruling reinforces the procedural principle that issues not raised at trial cannot be considered on appeal, emphasizing strict adherence to procedural rules governing service of process and appellate review. No new precedent altering existing procedural or substantive law was established.

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Barbara LEWIS, Indi v. dually, as Administratrix for the Estate of R. J. Lewis, and on Behalf of the Wrongful Death Beneficiaries for the Estate of R. J. Lewis

James Howard Thigpen, attorney for appellant. John Burley Howell, III, Mildred M. Morris, Timothy Lee Sensing, Jackson, attorneys for appellee.
EN BANC.

ON WRIT OF CERTIORARI

DICKINSON, Presiding Justice, for the Court:

¶ 1. The trial court granted the defendant's motion to dismiss because of insufficient service of process. The plaintiff appealed and the Court of Appeals reversed, holding that, even though service of process was improper, good cause existed under Mississippi Rule of Civil Procedure 4(h), and the action should not have been dismissed. We granted certiorari because the plaintiff never raised the issue at trial. Because we find it improper to raise this issue for the first time on appeal, we reverse the judgment of the Court of Appeals and reinstate and affirm the judgment of the Circuit Court of Scott County.

FACTS AND PROCEDURAL HISTORY

¶ 2. R.J. Lewis was Dr. John Paul Lee's patient from May 19, 2008, through May 23, 2008. Lewis died on May 23, 2008. On June 1, 2010, Barbara Lewis, as Administratrix for R.J. Lewis's estate and on behalf of the wrongful-death beneficiaries of R.J. Lewis (“Lewis”), filed a complaint in the Circuit Court of Scott County against Dr. Lee and Forest Family Practice.

¶ 3. Dr. Lee served as agent for service of process for Forest Family Practice. Proofs of service indicate that Process Server Gary Windham personally served Dr. Lee and Forest Family Practice with process on September 21, 2010. Relying on the proofs of service, Windham testified that he personally gave Dr. Lee the process, but admitted he had no independent recollection of doing so.

¶ 4. Dr. Lee, however, contends that process was served on the clinic's cashier, Winnie McMullan, even though she had no authority to accept process and was not informed that she was accepting legal documents. McMullan testified she remembered seeing Windham and that he left papers with her to give to Dr. Lee, but she testified she did not know the documents concerned a lawsuit and that she was not authorized to accept service of process for Dr. Lee or Forest Family Practice.

¶ 5. Dr. Lee testified that he did not meet Windham or receive any documents from him on September 21, 2010. Dr. Lee further stated that he never gave McMullan, nor anyone else, permission to accept service of process on his behalf. Based on this, Dr. Lee and Forest Family Practice filed a motion to dismiss for insufficient service.

¶ 6. The trial court granted the motion to dismiss and dismissed the case with prejudice. Lewis appealed, and the Court of Appeals held that, although service of process was improper, good cause existed under Rule 4(h), and that the action should not have been dismissed. Dr. Lee and Forest Family Practice now appeal the Court of Appeals' decision, arguing that: (1) any consideration of the good-cause argument was improper because Lewis did not raise the issue at trial; (2) the appellate court improperly made findings of fact; (3) the circuit court did not commit plain error; and (4) there is substantial evidence that good cause did not exist.

STANDARD OF REVIEW

¶ 7. We review a trial court's grant or denial of a motion to dismiss de novo, but when considering fact-based findings, “we will only examine whether the trial court abused its discretion and whether there was substantial evidence supporting the determination.”

Johnson v. Rao, 952 So.2d 151, 154 (Miss.2007) (citing Harris v. Miss. Valley State Univ., 873 So.2d 970, 988 (Miss.2004)).

Johnson, 952 So.2d at 154 (quoting 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))).

DISCUSSION

¶ 8. We agree with the Court of Appeals' finding that the trial court did not abuse its discretion in holding that service of process was insufficient. Ample testimony in the record supports a finding that process intended for Dr. Lee and Forest Family Practice was served on McMullan, who had no authority to accept the process.

¶ 9. In order for a person to accept service of process on behalf of another, Rule 4(d) requires that the person be an “agent authorized by appointment or by law to receive service of process.” Further, this Court has defined agent “[to] include only agents vested with some general authority and discretion, and not to extend to mere employees having no independent powers.”

.M.R.C.P. 4(d).

Johnson, 952 So.2d at 154 (quoting Saxony Mills v. Wagner & Co., 94 Miss. 233, 239, 47 So. 899, 901 (1909)).

¶ 10. Both Dr. Lee and McMullan testified that McMullan did not have authority to accept process for Dr. Lee or the Forest Family Practice. McMullan also stated that Windham did not inform her the papers pertained to a lawsuit. All of this evidence supports the trial court's conclusion.

¶ 11. Rule 4(h) of the Mississippi Rules of Civil Procedure states that

[i]f a service of the summons and complaint is not made upon a defendant within 120 days ... 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....

.M.R.C.P. 4(h).

¶ 12. Relying on this rule, the Court of Appeals found that Lewis made a showing of good cause why proper service was not made within 120 days. But as the Court of Appeals acknowledged, Lewis never argued good cause in the trial court. To justify overcoming the procedural bar, the Court of Appeals relied on its own precedent and asserted that in Spurgeon v. Egger, it had found good cause existed under Rule 4(h) to prevent dismissal of a plaintiff's claim, even though the plaintiff never raised that issue at trial. We are troubled by the Court of Appeals' conclusion for two reasons.

Lewis v. Forest Family Practice Clinic, PA, 124 So.3d 678 (Miss.Ct.App.2013) (“Lewis failed to raise the issue in the trial court.”).

Spurgeon v. Egger, 989 So.2d 901 (Miss.Ct.App.2007).

¶ 13. First, we have never held that failure to raise the issue in the trial court could be overlooked on appeal. But we also find that Spurgeon does not support the Court of Appeals' conclusion. In Spurgeon, the defendant moved to dismiss for insufficient service of process of a medical-malpractice claim when the defendant's medical assistant accepted service of process on behalf of the defendant without authority to do and with no knowledge that she was accepting service of process. The circuit court's judgement of dismissal stated:

Id. at 903.

[s]ervice of the Summons and Complaint in this cause were not made upon Dr. Egger within 120 days after filing of the Complaint and Plaintiffs have not shown good cause why such service was not made within that period.

Id. at 906 (emphasis added)

¶ 14. So, in Spurgeon, the issue of good cause was raised and decided in the trial court. The circuit court's failure to elaborate on its ruling—which was the basis of the Court of Appeals' decision—does not change the fact that the issue was raised and considered, and certainly cannot stand as precedent for overcoming the procedural bar.

¶ 15. In the case before us today, nothing in the record suggests that Lewis raised the issue of good cause or that the circuit court considered it. The circuit court's judgment makes no mention of good cause.

¶ 16. It is well-settled that issues presented for the first time on appeal are procedurally barred from consideration. We have held that

Estate of Myers v. Myers, 498 So.2d 376, 378 (Miss.1986) (citing Adams v. City of Clarksdale, 95 Miss. 88, 48 So. 242 (1909)). See Flagstar Bank, FSB v. Danos, 46 So.3d 298, 311 (Miss.2010) (“[W]e need not consider this issue, which has been raised for the first time on appeal.”); Neider v. Franklin, 844 So.2d 433, 436 (Miss.2003) (“We have consistently held that a trial court will not be put in error on appeal for matters not presented to it for decision.”); Boyles v. Miss. State Oil & Gas Bd., 794 So.2d 149, 153 (Miss.2001) (It is a well-settled proposition that this Court will not review matters on appeal that were not considered by the lower court.); Triplett v. Mayor and Bd. of Aldermen of Vicksburg, 758 So.2d 399, 401 (Miss.2000) (“This Court has long held that it will not consider matters raised for the first time on appeal.”).

[o]ne of the most fundamental and long established rules of law in Mississippi is that the Mississippi Supreme Court will not review matters on appeal that were not raised at the trial court level.

Estate of Myers, 498 So.2d at 378.

¶ 17. Because Lewis did not raise the issue of good cause before the trial court, she may not raise it on appeal. Accordingly, we find the circuit court did not abuse its discretion by granting Dr. Lee and Forest Family Practice's motion to dismiss. However, when dismissing for insufficient service of process, we have held that “Rule 4(h) dismissals should be made without, not with prejudice.” Thus, we reinstate and affirm the trial court's grant of dismissal but modify it to be without prejudice.

Holmes v. Coast Transit Auth., 815 So.2d 1183, 1187 (Miss.2002).

CONCLUSION

¶ 18. While the Court of Appeals correctly found that service of process upon Dr. Lee and Forest Family Practice was insufficient, it erred by considering Lewis's good-cause argument for the first time on appeal. Because we find it improper for an appellate court to consider matters not raised during trial proceedings, we reverse the opinion of the Court of Appeals and reinstate and affirm the judgment of the trial court but modify it to be without prejudice.

¶ 19. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED; THE JUDGMENT OF THE SCOTT COUNTY CIRCUIT COURT IS REINSTATED AND AFFIRMED AS MODIFIED. WALLER, C.J., RANDOLPH, P.J., LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. KING AND COLEMAN, JJ., NOT PARTICIPATING.
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