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Anderson v. Pascagoula School District

Court of Appeals of Mississippi

March 7, 2017

REBECCA ANDERSON APPELLANT
v.
PASCAGOULA SCHOOL DISTRICT APPELLEE

          DATE OF JUDGMENT: 09/23/2015

         JACKSON COUNTY CIRCUIT COURT HON. DALE HARKEY TRIAL JUDGE

          ATTORNEY FOR APPELLANT: KAYE J. PERSONS

          ATTORNEY FOR APPELLEE: STEPHEN A. ANDERSON

         EN BANC

          CARLTON, J.

         ¶1. Rebecca Anderson[1] appeals the Jackson County Circuit Court's judgment dismissing without prejudice her complaint against the Pascagoula School District (PSD) for insufficient service of process. Finding no error, we affirm the circuit court's dismissal of Rebecca's complaint.

         FACTS

         ¶2. On April 24, 2014, Rebecca filed a complaint against PSD for wrongful termination in violation of public policy, defamation, and intentional and/or negligent infliction of emotional distress. Pursuant to Rule 4(h) of the Mississippi Rules of Civil Procedure, Rebecca possessed 120 days from the date she filed her complaint to serve PSD with process. On August 18, 2014, four days before the expiration of the 120-day deadline, Rebecca attempted to serve PSD.

         ¶3. According to the affidavit of Kendra Anderson, a receptionist at PSD's central office, an unidentified woman walked into the central office on August 18, 2014, and handed Kendra a brown envelope. Kendra stated the woman told her that the envelope was intended for Superintendent Wayne Rodolfich. However, Kendra testified that the woman never identified herself as a process server and never explained that she was attempting to serve process on PSD. Kendra further testified that the woman never asked to speak to Superintendent Rodolfich or someone else with authority to accept service of process. In addition, Kendra stated in her affidavit that she was not authorized to accept legal documents or service of process on PSD's behalf and that she had never before done so.

         ¶4. On September 11, 2014, PSD filed its answer to Rebecca's complaint. In its answer, PSD specifically asserted the affirmative defenses of insufficiency of process and insufficiency of service of process. See M.R.C.P. 12(b)(4)-(5). On November 3, 2014, PSD filed a motion to dismiss Rebecca's complaint for insufficient process and for insufficient service of process. See id. To support its motion, PSD attached the affidavits of Kendra and Superintendent Rodolfich. Superintendent Rodolfich stated in his affidavit that he was familiar with those designated and authorized to accept service of process on PSD's behalf. In addition to himself, Superintendent Rodolfich provided that his secretary, Debbie Ruemenapp, and PSD's chief operating officer, Kathy Chenoweth, were the only individuals authorized to accept service of process for PSD. Based on these facts, PSD asserted that Rebecca's attempt to serve process on PSD through Kendra was insufficient and justified the dismissal of her complaint.

         ¶5. Four days after PSD filed its motion to dismiss, Rebecca effected personal service of process on Superintendent Rodolfich on November 7, 2014. On November 14, 2014, Rebecca filed her response to PSD's motion to dismiss. She also filed cross-motions asking the circuit court to grant her additional time to effect service of process and to strike certain statements contained in Kendra's and Superintendent Rodolfich's affidavits.

         ¶6. In an order entered on September 23, 2015, the circuit court ruled on PSD's motion to dismiss. The circuit court found no evidence in the record to show that Rebecca ever filed with the clerk's office a return of service for the attempt made on August 18, 2014. However, the circuit court did find that Rebecca attached a copy of the return of service to her response to PSD's dismissal motion. The attached copy of the return of service identified the process server and showed that Rebecca's attorney had notarized the document on August 18, 2014. In addition, the circuit court found that the copy of the return specifically provided that the process server had personally delivered copies of the summons on August 18, 2014, to PSD's headquarters through Kendra, the receptionist.

         ¶7. The circuit court found that Kendra lacked any real or apparent authority to accept process on PSD's behalf. The circuit court further determined that Rebecca failed to effect proper service of process until she personally served Superintendent Rodolfich on November 7, 2014, which was 166 days after she filed her complaint. As a result, the circuit court concluded that Rebecca's complaint was subject to dismissal unless she could show good cause for the delay. See M.R.C.P. 4(h).

         ¶8. In determining whether good cause existed, the circuit court concluded that Rebecca could not "rely on the conduct of her process server or other third person, nor [could] she claim diligence in regard to the August 18, 2014" attempt to serve process. The circuit court found that the copy of the return of service, which was notarized by Rebecca's attorney, indicated that the process server delivered the summons to PSD's receptionist, Kendra, rather than to Superintendent Rodolfich. The circuit court concluded that this fact alone indicated some form of substituted service of process and should have led to further inquiry about the precise manner of service. In addition, the circuit court found that the copy of the return of service was technically deficient because the document provided that the process server delivered a copy of only the summons rather than a copy of both the summons and the complaint. See M.R.C.P. 4(d)(8).

         ¶9. The circuit court also found no merit to Rebecca's arguments that PSD misled her as to the proper agents for service of process or that the circuit court should have granted an additional 120 days for service of process pursuant to Rule 6(b) of the Mississippi Rules of Civil Procedure. The circuit court found that Rebecca failed to show either that PSD provided misleading information or that she detrimentally relied on any such information. Furthermore, the circuit court determined (1) that Rebecca failed to request a Rule 6(b) extension before the expiration of her initial 120-day deadline, and (2) that she failed to show excusable neglect for her failure to timely effect service of process. Based on its findings, the circuit court granted PSD's motion and dismissed Rebecca's complaint without prejudice. Aggrieved by the circuit court's judgment, Rebecca appeals to this Court.

         STANDARD OF REVIEW

         ¶10. We "review[] de novo a trial court's grant or denial of a motion to dismiss." Johnsonv. Rao, 952 So.2d 151, 154 (ΒΆ9) (Miss. 2007) (citation omitted). However, we review the trial court's fact-based findings for abuse of discretion, and we will not reverse the ...


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