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

Supreme Court of Mississippi, En Banc

October 31, 2013

Barbara LEWIS, Individually, as Administratrix for the Estate of R. J. Lewis, and on Behalf of the Wrongful Death Beneficiaries for the Estate of R. J. Lewis
v.
FOREST FAMILY PRACTICE CLINIC, P.A. and John Paul Lee, M.D.

Page 655

James Howard Thigpen, attorney for appellant.

John Burley Howell, III, Mildred M. Morris, Timothy Lee Sensing, Jackson, attorneys for appellee.

ON WRIT OF CERTIORARI

DICKINSON, Presiding Justice.

¶ 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.

Page 656

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,[1] but when considering fact-based findings, " we will only examine whether the trial court abused its discretion and whether there ...


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