OF JUDGMENT: 09/23/2015
COUNTY CIRCUIT COURT HON. DALE HARKEY TRIAL JUDGE
ATTORNEY FOR APPELLANT: KAYE J. PERSONS
ATTORNEY FOR APPELLEE: STEPHEN A. ANDERSON
Rebecca Anderson 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.
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.
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
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.
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.
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.
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).
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).
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.
We "review de novo a trial court's grant or denial
of a motion to dismiss." Johnsonv.
Rao, 952 So.2d 151, 154 (¶9) (Miss. 2007) (citation
omitted). However, we review the trial court's fact-based
findings for abuse of discretion, and we will not reverse the