                   IN THE SUPREME COURT OF MISSISSIPPI

                              NO. 2015-CA-01092-SCT

WESLEY HEALTH SYSTEM, LLC d/b/a WESLEY
MEDICAL CENTER

v.

ESTATE OF JACKIE KATHERINE LOVE,
DECEASED, EDWARD LAVONNE LOVE, AS
PERSONAL REPRESENTATIVE AND
EXECUTOR, ON BEHALF OF THE ESTATE OF
JACKIE KATHERINE LOVE, DECEASED, AND
EDWARD LAVONNE LOVE, CLARA GRACE
LOVE, A MINOR, AND HANNAH VICTORIA
LOVE, A MINOR, ALL INDIVIDUALLY AND AS
HEIRS AND WRONGFUL DEATH
BENEFICIARIES OF JACKIE KATHERINE
LOVE, DECEASED


DATE OF JUDGMENT:                        05/21/2015
TRIAL JUDGE:                             HON. ANTHONY ALAN MOZINGO
COURT FROM WHICH APPEALED:               LAMAR COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                  J. ROBERT RAMSAY
ATTORNEY FOR APPELLEES:                  SETH MAGILL HUNTER
NATURE OF THE CASE:                      CIVIL - WRONGFUL DEATH
DISPOSITION:                             REVERSED AND REMANDED - 09/15/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE DICKINSON, P.J., LAMAR AND COLEMAN, JJ.

      COLEMAN, JUSTICE, FOR THE COURT:

¶1.   Edward Lavonne Love (“Love”) filed a complaint against Wesley Health System,

LLC (“Wesley”) alleging negligence, medical malpractice, and wrongful death of his wife,
Jackie Katherine Love (“Mrs. Love”).1 A default judgment was entered against Wesley. The

trial court denied Wesley’s motion to set aside the default judgment and entered a final

judgment against Wesley awarding Love $1,784,715.18 in compensatory and punitive

damages and attorney’s fees.

¶2.    Because the trial court erred by prohibiting Wesley from cross examining the process

server on the disputed issue of whether process was served upon Wesley’s registered agent,

we reverse and remand. Although the trial court’s prohibition of cross examination was

reversible error and dispostive to our decision, we further hold that the trial court also erred

by failing to apply the three-part balancing test articulated by the Court in determining

whether to set aside a default judgment. See Woodruff v. Thames, 143 So. 3d 546, 552 (¶14)

(Miss. 2014). Accordingly, we reverse and remand with instructions consistent with the

instant opinion.

                        FACTS AND PROCEDURAL HISTORY

¶3.    On March 7, 2013, Mrs. Love was admitted to Wesley for gastrointestinal bleeding.

On April 30, 2013, Mrs. Love underwent subtotal gastrectomy surgery. Following surgery,

Mrs. Love contracted sepsis and passed away on May 13, 2013, while still in the care of

Wesley. On January 16, 2015, Love filed a complaint alleging negligence, medical

malpractice, and wrongful death against Wesley. Love retained Quantum Process Servers

to serve process upon Wesley. On March 24, 2015, Terry Keith, a process server with

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         The complaint was filed in the name of Mrs. Love’s estate, in Edward Lavonne
Love’s name as personal representative and administrator of Mrs. Love’s estate, and in the
names of the Loveses' two daughters, all individually and as Mrs. Love's heirs and wrongful
death beneficiaries. The plaintiffs are collectively referred to as Love for clarity.

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Quantum, allegedly served process upon Wesley's registered agent for service of process,

CSC of Rankin County, Inc. ("CSC"). However, Wesley disputes that process was served

upon its registered agent, CSC.

¶4.    On March 25, 2015, Keith executed an affidavit of service stating that she served CSC

with a copy of the summons, complaint, notice of service of discovery, first set of

interrogatories, requests for production, and requests for admissions. According to the

affidavit of service, Keith delivered the summons, complaint, and written discovery to Lorri

Babb. Babb was identified as a paralegal with CSC, although she is actually a paralegal with

the law firm of Watson & Jones. It is undisputed that CSC had authorized the law firm of

Watson & Jones to accept service of process on its behalf.2

¶5.    Wesley did not answer the complaint or otherwise defend for over thirty days. On

May 12, 2015, Love filed an application for a clerk’s entry of default, which the clerk entered

that day. Also, on May 12, 2015, Love filed a motion for a default judgment. On May 15,

2015, Love filed a notice of hearing setting a hearing to determine damages for May 18,

2015. On May 15, 2015, the trial court signed a default judgment and fiat stating that a

hearing to determine damages was set for May 18, 2015. On May 18, 2015, the trial court




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         An affidavit executed by John Kevin Watson, managing partner of Watson & Jones,
stated: “Since 2002, my firm has served as the authorized representative to accept service
of process for CSC of Rankin County, Inc. at my office located at 2829 Lakeland Drive,
Mirror Lake Plaza, Suite 1502, Jackson, MS 39232.” Lorri Babb’s affidavit also provided
that Watson & Jones receives service of process addressed to CSC pursuant to an agreement
between CSC and Watson & Jones. Neither party has raised and this opinion does not
address the issue of whether a registered agent may authorize via appointment or agreement
for another person or entity to act as its stead as registered agent.

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entered a default judgment and fiat stating that a hearing to determine damages was set for

that day.

¶6.    Also, on May 18, 2015, Love filed a motion to enlarge time to serve process. The

motion offered no explanation why an enlargement of time to serve process was requested,

other than stating that the time period to serve process was set to expire that day.

Nonetheless, the trial court granted the motion and ordered that Love receive an additional

120 days to serve process. The trial court proceeded with a hearing where it received

exhibits and heard testimony from Love’s experts and Mrs. Love’s husband in support of

damages. On May 21, 2015, the trial court entered a final judgment awarding Love

$2,034,715.18 in compensatory damages, $2.5 million in punitive damages, and $500,000

in attorney’s fees for a total judgment of $5,034,715.18 against Wesley.

¶7.    On May 29, 2015, Wesley filed a motion to set aside the default judgment. Wesley

contended that, on May 21, 2015, CSC received a copy of the default judgment and fiat,

which it forwarded to Wesley the next day. The trial court clerk did not mail the default

judgment and fiat to CSC until May 19, 2015, the day after the damages hearing was held.

On May 26, 2015, CSC received a copy of the final judgment, and forwarded it to Wesley

the next day.

¶8.    Wesley claimed that CSC had never been served with the summons and complaint,

that CSC first received notice of the lawsuit on May 21, 2015, and that Wesley itself had first

received notice of the lawsuit on May 22, 2015. Wesley argued that it had good cause for

failing to answer the complaint, it had colorable defenses to Love's claims, and that Love was



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not prejudiced by Wesley's failure to answer. Wesley also disputed the propriety and legality

of the damages award. Wesley attached affidavits disputing service of process and

itemization of charges relating to the hospital stay to its motion.

¶9.    An affidavit of Andrew M. Gachaiya, project manager in the CSC legal department

stated that CSC first received notice of the lawsuit on May 21, 2015. Gachaiya explained

that CSC has a detailed process for recording service made upon it, and CSC had no record

of receiving the summons and complaint allegedly served upon Babb.

¶10.   On June 26, 2015, Wesley filed an affidavit executed by Babb. Babb disputed that

she received service of process. Babb stated: “I have no memory of receiving any SOP [on

March 24, 2015], or any memory of having ever received [service of process] from Ms.

Keith. I do not believe that I received the Love [service of process].” Babb stated that

although she was not primarily responsible for receiving service of process, she would

occasionally receive service of process on behalf of CSC. Babb explained the procedure for

receiving service of process. Babb also verified that she could not locate any physical or

electronic record of ever receiving the summons and complaint. Babb stated that she was

“confident that [she] did not receive the [service of process] because there [were] no records

of the receipt or processing of that [service of process] in any of the places where would

records would have been created and maintained.”

¶11.   On June 29, 2015, a hearing was held on Wesley’s motion to set aside the default

judgment. At the outset, counsel for Love asked for a continuance so that he could subpoena

Babb for the purpose of cross examining her. The trial court found that a “substantial part



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of [Love’s] argument in defending [the motion to set aside the default judgment]” depended

on being able to cross examine Babb and granted a continuance. On July 8, 2015, Wesley

filed an affidavit of John Kevin Watson, managing partner of Watson & Jones. Watson

stated that after performing a thorough search of his firm, he had not found any record

whatsoever of receipt of service of process.

¶12.   On July 10, 2015, the trial court resumed the hearing. Counsel for Wesley proceeded

with his argument and attempted to call Babb to the stand, but the trial court interrupted.

Instead, the trial court called Keith to the stand and carried out its own examination. Keith

testified that she normally serves a different person than Babb, and asked her if she was

authorized to receive service of process. Keith testified that Babb answered that she was

authorized. Keith testified that she obtained Babb’s name and position, told her that she did

not have to sign anything, and served her with process. The trial court then told Keith that

she could step down from the stand.

¶13.   At that point, Wesley's counsel interjected and requested to cross examine Keith, but

the trial court refused. Although the trial court indicated that it would allow counsel for

Wesley an opportunity later in the hearing to cross examine Keith, the trial court immediately

announced: “The [trial court] finds credible testimony under oath and assumes, or presumes

. . . that process was served on the registered agent for [Wesley].” After making the finding,

the trial court requested that counsel present arguments on the three-part balancing test in

determining whether to set aside a default judgment.




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¶14.   After Wesley and Love completed their arguments on the three-part test, the trial court

ultimately reserved its ruling. On July 13, 2015, the trial court denied Wesley’s motion to

set aside the default judgment, and entered a final judgment. The trial court concluded that

Wesley was served with process upon its registered agent, CSC. In lieu of applying the

three-part balancing test, the trial court’s final judgment stated:

       The [trial court] finds that setting aside a judgment is reserved for
       extraordinary circumstances collateral to the merits of the case. See Ice Plant[]
       Inc. v. Grace, 133 So. 3d 379, 382 (¶6) (Miss. Ct. App. 2014). Only when
       circumstances are extraordinary and collaterally related to the merits of the
       case may a court consider the [d]efendant’s ‘colorable defenses’, [p]laintiff’s
       prejudice, and ‘good cause’ for setting the judgment aside. The circumstances
       surrounding [Wesley’s] failure to answer the complaint are not extraordinary.
       Defendants in civil cases commonly fail to answer complaints. Furthermore,
       even if the circumstances of this Defendant’s failure to answer are deemed
       extraordinary, they are clearly not collateral to the merits of the case.

The trial court determined amount of damages were excessive and reduced them to $500,000

in non-economic damages, $250,000 in attorney's fees, $500,000 in punitive damages, and

$534,715.18 in compensatory damages, for a total judgment of $1,784,715.18 against

Wesley.

¶15.   Wesley appeals raising the following assignments of error: (1) whether the trial court

erred in finding that service of process was proper; (2) whether the trial court erred by failing

to apply the three-part balancing test; (3) alternatively, whether the trial court erred in its

application of the three-part test; (4) whether the damages were proper; (5) whether equity

supports vacating the default judgment. The first issue is dispostive, however, we will

address the second assignment of error because the issue may be broached again on remand.




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                                       DISCUSSION

I.     The trial court erred by prohibiting cross examination of the process server.

¶16.    “Sufficiency of service of process is a jurisdictional issue, which is reviewed de

novo.” BB Buggies Inc. v. Leon, 150 So. 3d 90, 95 (¶6) (Miss. 2014). “A court must have

jurisdiction, proper service of process, in order to enter a default judgment against a party.

Otherwise, the default judgment is void. If a default judgment is void, the trial court has no

discretion and must set the judgment aside.” McCain v. Dauzat, 791 So. 2d 839, 842 (¶7)

(Miss. 2001).

¶17.   Mississippi Rule of Evidence 611 controls the mode and order of witness questioning.

Rule 611(b) entitles counsel conducting cross examination to “broad discretion in the subject

matter of the questioning.” Culp v. State, 933 So. 2d 264, 273 (¶ 33) (Miss. 2005) (citing

Craft v. State, 656 So. 2d 1156, 1162 (Miss. 1995)). The trial court has “discretion to restrict

that latitude when the subject matter of questioning has no relevance.” Id. In the instant

case, the trial court prohibited cross examination of Keith altogether on the sharply disputed

issue of whether process had been served upon CSC.

¶18.   In Mississippi Ice & Utilities Co. v. Pearce, 161 Miss. 252, 134 So. 164, 167 (1931),

the Court held that “[n]o witness, offered by either side, be he prince, potentate, physician,

judge, or private citizen, is exempt from the right of fair cross-examination in this state.” A

party is deprived of the right of cross examination when the “trial court fundamentally and

substantially restricts it,” which means “that the party is deprived of the opportunity without




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fault on their part.” Culp, 933 So. 2d at 276 (¶33) (citing Murphy v. State, 453 So. 2d 1290,

1292 (Miss. 1984); Myers v. State, 296 So. 2d 695, 701 (Miss. 1974)).

¶19.   At the first hearing on Wesley’s motion to set aside the default judgment, the trial

court appropriately preserved Love’s request for the opportunity to cross examine Babb on

the disputed issue of service of process by granting a continuance. At the second hearing

however, Wesley’s request to cross examine Keith on the disputed issue of service of process

was denied entirely.

¶20.   We reject Love’s argument that the issue of cross examination is waived because

Wesley did not “object contemporaneous with the [trial court’s] examination of Mrs. Keith

(or anytime thereafter) as to the questions asked or the course of action taken by the [trial

court], or place in the record during the proffer what purported damning information it

thought it might pry from Mrs. Keith.” Although the trial court indicated that it would allow

cross examination of Keith later in the hearing, it immediately made a finding of fact that

service of process was proper. As a result, Wesley was completely deprived of its right to

cross examine Keith on the critical and disputed issue of service of process. By cutting off

Wesley’s request to question Keith entirely, the trial court failed to fulfill its burden to

“exercise reasonable control over the mode and order of examining witnesses and presenting

evidence so as to make those procedures effective for determining the truth[.]” M.R.E.

611(a)(1).

¶21.   The return of process executed by Keith is presumed to be correct. Dauzat, 791 So.

2d at 842 (¶8). Here, the only evidence supporting Love’s claim that process was served on



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CSC was that of Keith herself, including the affidavit of service she executed. Without any

cross examination of Keith, much less any examination of any of Wesley’s witnesses

prepared to testify for the purpose of disputing Keith’s testimony, Wesley was prevented

from attempting to rebut the presumption that process had been served. As a result, the Court

finds itself in possession of an incomplete record.

¶22.   The Court has expressed the importance of preserving a party’s right of cross

examination:

       It is of the utmost importance in the administration of justice that the right of
       cross-examination be preserved unimpaired. It is the law’s most useful
       weapon against fabrication and falsehood. As a test of the accuracy,
       truthfulness, and credibility of testimony, there is no other means as effective.
       . . . [T]he privilege should not be interfered with or hampered or restricted by
       the trial judge, except in clear case of irrelevancy, trespass beyond admissible
       ground, or extremes of continual, aimless repetition.

Prewitt v. State, 156 Miss. 731, 126 So. 824, 825 (1930). The trial court’s prohibition of the

cross examination of Keith against Wesley’s explicit request constitutes reversible error. On

remand, the trial court must preserve Wesley’s right to cross examine Keith on the disputed

issue of service of process.

II.    The trial court abused its discretion by failing to apply the three-part balancing
       test in determining whether to set aside the default judgment.

¶23.   Because it is apparent that the trial court did not apply the three-part balancing test

after erroneously concluding that service of process was proper, we briefly address the

second assignment of error.

¶24.   “In deciding whether to set aside a default judgment, the trial court must consider (1)

the nature and legitimacy of the defendant's reasons for his default, i.e., whether the


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defendant has good cause for default, (2) whether the defendant in fact has a colorable

defense to the merits of the claim, and (3) the nature and extent of prejudice which may be

suffered by the plaintiff if the default judgment is set aside.” American States Ins. Co. v.

Rogillio, 10 So. 3d 463, 468 (¶10) (Miss. 2009) (citations omitted). Indeed, “the trial court

must employ the three-part balancing test when deciding whether to set aside a default

judgment, and this Court must strike the same balance when determining whether the trial

court abused its discretion in making that decision.” Flagstar Bank, FSB v. Danos, 46 So.

3d 298, 306-07 (¶28) (Miss. 2010).

¶25.   Even if the trial court had allowed cross examination of Keith on the issue of whether

Wesley had been properly served, it is apparent that the trial court abused its discretion in

failing to employ the three-part balancing test as articulated by the Court in Rogillio. As

evidenced by the trial court's final judgment, it did not reach the three-part balancing test in

deciding whether to set aside Wesley's motion to set aside the default judgment. The trial

court’s final judgment, citing the Mississippi Court of Appeals decision in Ice Plant Inc. v.

Grace, 133 So. 3d 379, 382 (¶6) (Miss. Ct. App. 2014), found that “only when the

circumstances are extraordinary and collaterally related to the merits of the case may a court

consider the [d]efendant's ‘colorable defenses', [p]laintiff's prejudice, and ‘good cause' for

setting the judgment aside.” Because the trial court found that the circumstances surrounding

Wesley’s failure to answer the complaint were not “extraordinary,” it declined to apply the

three factors. This conclusion was a misreading of Ice Plant, because the court found that

“[t]he trial judge in the present case properly considered the three prongs of the balancing



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test regarding whether to grant relief under Rule 60 and found nothing to warrant setting

aside the judgment against Ice Plant.” Id. at 383 (¶8).

¶26.   The parties thoroughly briefed and argued the three-part balancing test in the trial

court as well as on appeal. In Kumar v. Loper, 80 So. 3d 808, 816 (¶31) (Miss. 2012), the

Court unequivocally stated: “[W]e can state with certainty that, if the trial [court] failed to

apply the test, [it] abused [its] discretion.” We caution the trial court that on remand, a

failure to apply the three-part balancing test would constitute an abuse of discretion if it were

to find that Wesley was properly served with process.

                                       CONCLUSION

¶27.   On remand, the trial court must preserve Wesley's right to cross examine the process

server before it determines the threshold issue of whether service of process was proper. If

the trial court finds that service of process was proper, then it must apply the three-part

balancing test articulated by the Court in determining whether the default judgment should

be set aside.

¶28.   REVERSED AND REMANDED.

    WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS,
KING AND MAXWELL, JJ., CONCUR. BEAM, J., NOT PARTICIPATING.




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