                     IN THE SUPREME COURT OF MISSISSIPPI

                                   NO. 2017-IA-00485-SCT

OFFICER JOE EDNEY IN HIS INDIVIDUAL AND
OFFICIAL CAPACITIES

v.

CARLOS WILLIAMS

DATE OF JUDGMENT:                             03/20/2017
TRIAL JUDGE:                                  HON. MARGARET CAREY-McCRAY
TRIAL COURT ATTORNEYS:                        CARLOS EUGENE MOORE
                                              ANDREW N. ALEXANDER, III
COURT FROM WHICH APPEALED:                    WASHINGTON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                       ANDREW N. ALEXANDER, III
ATTORNEY FOR APPELLEE:                        CARLOS EUGENE MOORE
NATURE OF THE CASE:                           CIVIL - PERSONAL INJURY
DISPOSITION:                                  REVERSED AND REMANDED - 12/13/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE RANDOLPH, P.J., KING AND ISHEE, JJ.

       KING, JUSTICE, FOR THE COURT:

¶1.    Officer Joe Edney appeals from the trial court’s holding that Carlos Williams had

established good cause for his failure to serve process within the statutory time period. We

find that the trial court abused its discretion in failing to consider in its analysis of good cause

Williams’s four-and-a-half-year delay in pursuing this action. Therefore, we reverse the trial

court’s decision and remand this case to the trial court to include the length of delay in its

analysis of good cause.

                         FACTS AND PROCEDURAL HISTORY

¶2.    On or about February 8, 2008, while employed in the Special Operations Unit with
the Greenville Police Department, Officer Edney was involved in the arrest of Williams.

Williams alleged that Officer Edney had attempted to stop a vehicle in which Williams had

been a passenger. The driver of the vehicle continued driving for approximately four blocks,

then stopped the vehicle, exited, and started running. Williams also ran until Officer Edney

demanded that he stop. Williams stated that after he surrendered, Officer Edney began

screaming at him obscenities, threats, and racial slurs. Williams alleged that Officer Edney

then sprayed Williams with mace and kicked and stomped Williams in the face, neck, and

shoulder, causing him injuries.

¶3.     On March 11, 2010, Williams filed a complaint against Officer Edney, in his

individual and official capacities, in the Washington County Circuit Court. Corporal Vernon

Jackson, now deceased, was to serve process on Officer Edney. Corporal Jackson indicated

on the return of service that personal service had been made on Officer Edney on March 29,

2010.

¶4.     On July 16, 2010, Williams filed an application for entry of default, stating that

Officer Edney had failed to respond to the complaint. The circuit clerk docketed the entry of

default judgment that same day. Williams then filed a motion for default judgment on the

issue of liability and for a trial setting on the issue of damages. The circuit court entered

default judgment on liability on November 18, 2010, and ordered a separate hearing to be

held to determine damages. Although the hearing on damages originally was set to

commence June 3, 2011, counsel for Williams requested and was granted a continuance.

¶5.     For reasons unclear from the record, the case remained stagnant until four and a half



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years after the entry of default judgment. On April 30, 2015, the circuit court entered an order

stating that because Williams had failed to notify or name the City of Greenville as a party,

the claims against Officer Edney in his official capacity must be dismissed. The trial court

then awarded damages in favor of Williams against Officer Edney individually in the amount

of $6,000, in addition to $3,000 in attorneys’ fees and $300 in costs.

¶6.    On July 30, 2015, Officer Edney filed a Motion and Memorandum for Relief from

Judgment Pursuant to Rule 60(d) of the Mississippi Rules of Civil Procedure. In support of

the motion, Officer Edney stated that, on or about July 5, 2015, he checked his mailbox in

Boyle, Mississippi, and found a “Final Judgment” in this action. The attorney for Williams

had sent the final judgment to the Greenville Police Department, which had forwarded the

judgment to Officer Edney. Officer Edney averred that receipt of the judgment was the first

time he became aware that a lawsuit had been filed. Because Officer Edney had not been

personally served with process, he contended that the trial court had not acquired jurisdiction

over him. Instead, Officer Edney alleged that Corporal Jackson had delivered the summons

and complaint to another Greenville Police Department employee, Yolanda Netterville. He

stated that Netterville’s signature, not his, appeared on the proof of service. Officer Edney

stated that he had never authorized Netterville to receive service of process for him. Thus,

Officer Edney argued the default judgment entered against him was void.

¶7.    Angelia Sorrell, the records clerk for the Washington County Sheriff’s Department,

submitted an affidavit stating that Netterville’s signature appeared on the proof of service.

She also wrote that a notation in the docket book located at the sheriff’s department indicated



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that Corporal Jackson had not served Officer Edney but that he had served Netterville

instead. Sorrell averred that she had mailed the service of process to the Moore Law Office

on March 30, 2010. Sorrell then submitted a supplemental affidavit and certification of

record, in which she certified and authenticated a page from the Washington County Sheriff’s

Department Civil Docket Book 45, Page 59. The page in the docket book stated under the

column “How Executed” that Corporal Jackson had “served Yolanda Netterville.”

¶8.    Netterville submitted an affidavit stating that in 2010, she had been employed by the

Greenville Police Department as a clerk. She stated that her signature appeared on the first

page of the Summons under the language, “I HAVE RECEIVED A COPY OF THIS

PROCESS THIS DATE.” Netterville stated that Officer Edney had never authorized her to

accept service of process or any other document on his behalf. She further stated,

       My practice, when I was served with a summons or other document issued for
       another Greenville Police Department employee was, after signing for receipt
       of the document, I would place it in the “in-box” for the department in which
       the employee worked. I presume that I did this with regard to Officer Edney’s
       Summons and Complaint. I have no knowledge concerning what subsequently
       happened to the documents, or whether [O]fficer Edney ever saw them.

Williams submitted a response in opposition to the motion, arguing that the signature on the

front of the summons was unclear and that Officer Edney’s name could not be ruled out.

Further, Williams argued that no objective evidence had been presented to show that

Netterville did not have authority to accept service on Officer Edney’s behalf.

¶9.    The trial court held a hearing on the motion on September 9, 2015. The court found

that Officer Edney’s motion for relief from judgment was well-taken and held that the court

had not acquired jurisdiction over Officer Edney because of improper service of process. The

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court ordered the entry of default, the default judgment, and the order of the court awarding

damages to be set aside. Counsel for Williams immediately made an ore tenus motion for an

additional 120 days within which to serve Officer Edney with a copy of the summons and

complaint. The trial court reserved ruling and ordered the parties to brief the issue of whether

the dismissal should be with or without prejudice. At the conclusion of the hearing, counsel

for Williams handed a copy of the summons and complaint to Officer Edney.

¶10.   Subsequently, Officer Edney filed a motion to dismiss, in which he argued that the

three-year statute of limitations of Mississippi Code Section 15-1-49 had expired.1 Williams

contended that he should be allowed to begin the lawsuit anew because he had demonstrated

a good-faith effort to serve Officer Edney. The trial court found in favor of Williams, holding

that Williams had established good cause by showing that he had a reasonable belief that

service had been made properly within the statutory period. The trial court granted Williams

an additional thirty days from September 6, 2016, to serve process in this case.

¶11.   Williams then served process on Officer Edney on October 11, 2016, five days after

the extension period had expired. On November 8, 2016, Officer Edney filed a motion to

quash the untimely summons and to dismiss the action with prejudice. Williams filed a

motion for extension of time to serve Officer Edney on November 18, 2016, stating that



       1
        Mississippi Code Section 15-1-49(1) provides,

       All actions for which no other period of limitation is prescribed shall be
       commenced within three (3) years next after the cause of such action accrued,
       and not after.

Miss. Code. Ann. § 15-1-49(1) (Rev. 2012).

                                               5
counsel for Williams had “suffered five death threats related to litigation to remove the state

flag,” and arguing that Williams should not be penalized.

¶12.   The trial court found that Williams had failed to timely serve process within the

additional time granted by the trial court and had failed to establish good cause for the

untimely service of process. The court then dismissed the action without prejudice. Williams

made an ore tenus request for reconsideration and argued for the first time that he had served

Officer Edney with process at the September 9, 2015, hearing. The trial court found that

counsel for Williams had served Officer Edney at the September 9, 2015, hearing, which was

well within the additional thirty-day extension. The court vacated its prior ruling granting

Officer Edney’s motion to dismiss the action and returned the case to the trial court’s docket.

¶13.   Officer Edney now appeals and argues, first, that because Williams failed to obtain

personal jurisdiction by proper service of summons and complaint prior to the expiration of

the three year statute of limitations, the trial court erred in failing to dismiss the action with

prejudice. Officer Edney argues in the alternative that the trial court erred in failing to

dismiss the case with prejudice because Williams failed to comply with the trial court’s

thirty-day extension for service of process. Because the first issue is dispositive, we decline

to address Officer Edney’s second issue.

                                        DISCUSSION

¶14.   This Court reviews de novo the trial court’s grant or denial of a motion to dismiss.

Johnson v. Rao, 952 So. 2d 151, 154 (Miss. 2007). “M.R.C.P. 4(h) requires service of the

summons and complaint within 120 days of filing of the complaint or the action shall be



                                                6
dismissed without prejudice unless ‘good cause’ can be shown as to why service was not

made within that period.” Crumpton v. Hegwood, 740 So. 2d 292, 293 (Miss. 1999). A trial

court’s finding on the existence of good cause for a delay in service of process is a finding

of fact and is entitled to deferential review. Holmes v. Coast Transit Auth., 815 So. 2d 1183,

1185 (Miss. 2002) (citation omitted). The plaintiff bears the burden of establishing good

cause. Lewis Entm’t, Inc. v. Brady, 142 So. 3d 396, 399 (Miss. 2014).

¶15.   Officer Edney first argues that because Williams failed to serve Officer Edney with

process, the statute of limitations in this case expired. He avers, therefore, that the trial court

erred in failing to dismiss Williams’s case with prejudice. In contrast, Williams argues that

he had in fact served Officer Edney with process shortly after filing his complaint. As this

Court has held, “[f]iling a complaint tolls the applicable statute of limitations 120 days, but

if the plaintiff fails to serve process on the defendant within that 120-day period, the statute

of limitations automatically begins to run again when that period expires.” Brady, 142 So.

3d at 398 (quoting Watters v. Stripling, 675 So. 2d 1242, 1244 (Miss. 1996)). The incident

that Williams complained of occurred on February 8, 2008. Pursuant to Mississippi Code

Section 15-1-49, Williams was required to file his lawsuit within three years after the cause

of action accrued. Miss. Code Ann. § 15-1-49 (Rev. 2012). On March 11, 2010, Williams

filed his complaint against Edney. At that point, the statute of limitations was tolled for 120

days pending service of process upon the defendant, leaving 334 days remaining on the

statute of limitations. Officer Edney argues that because he was not properly served, the

statute of limitations began running again on July 9, 2010, and that it expired on June 8,



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2011.

¶16.    This Court agrees. Although Williams argues that Netterville had authority to accept

process on Officer Edney, the evidence in the record fails to support that contention.

Mississippi Rule of Civil Procedure 4(d) provides that the “summons and complaint shall be

served together.” M.R.C.P. 4(d). Service shall be made upon an individual “by delivering a

copy of the summons and of the complaint to him personally or to an agent authorized by

appointment or by law to receive service of process. . . .” Id. (emphasis added). Because

Officer Edney submitted sufficient evidence showing that Corporal Jackson had served

Netterville and not Officer Edney, service of process was effective on Officer Edney only

if Netterville had been Officer Edney’s agent. “This Court has defined the word agent, ‘[to]

include only agents vested with some general authority and discretion, and not to extend to

mere employees having no independent powers.’” Johnson, 952 So. 2d at 154 (citation

omitted).

¶17.    “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 law to receive service of

process.’” Lewis v. Forest Family Practice Clinic, P.A., 124 So. 3d 654, 656-57 (Miss.

2013) (citing M.R.C.P. 4(d)). In Lewis, the process server for the plaintiff testified that he

had personally served the defendant doctor with process and that he had relied on the return

of process that indicated that he had done so. Id. at 656. The defendant, however, testified

that the process server had instead served the clinic’s cashier and that he had never received

any documents from the process server on that day. Id. This Court found that the cashier had



                                              8
no authority to accept process for the doctor or his practice. Id. at 657.

¶18.   Here, Officer Edney submitted an affidavit stating that he had “never authorized

anyone, including Yolanda Netterville, to accept service of process for [him]. . . .” Officer

Edney additionally testified that he had never before been served a subpoena at the

Greenville Police Department. Netterville also submitted an affidavit stating that Officer

Edney had never authorized her to accept service of process or any other documents on his

behalf. Netterville did, however, state that “her practice” when she was served with summons

was to sign for the receipt of the document and place the document in the “in-box” for the

department in which the employee worked. Williams argues that this vested Netterville with

authority to accept process for Officer Edney.

¶19.   Williams cites Williams v. Kilgore, in which this Court stated, “we find nothing in our

case law which precludes the acceptance of service of process by an agent such as an office

manager, who, by custom and practice, is vested with apparent authority to do so.” Williams

v. Kilgore, 618 So. 2d 51, 56 (Miss. 1992). The process server in that case had served the

office manager of a doctor’s office. Id. Although both the doctor and the office manager

testified that the office manager was not authorized to accept service of process, the process

server testified that on many occasions the office manager had accepted service on behalf of

the defendant and on behalf of the other doctors in the office. Id. This Court stated that

because the deputy had previously served process on the defendant and other physicians in

the office and because the office manager had accepted the documents, process appeared to

have been properly served. Id.



                                              9
¶20.   This case can be distinguished. A clerk who is employed in one division of a police

department does not carry the same apparent authority for the police department as a whole

as carries an office manger for a doctor’s office. The parties do not dispute that Netterville

had not been Officer Edney’s personal clerk or even a clerk in Officer Edney’s division of

the police department. Netterville had been employed as a clerk in the criminal-investigations

division of the Greenville Police Department. Officer Edney stated that he had been

employed in the felony-narcotics division. In fact, Officer Edney testified that his office had

been separate from the police department. Therefore, unlike in Lewis and in Williams,

Netterville merely was a coworker of Officer Edney’s and was not employed by Officer

Edney.2 Although Netterville stated that she had accepted process for other officers before,

this statement fails to convey that she had been authorized to accept process for the entire

police department. Netterville also was not called to testify to further develop her affidavit.

In addition, the process server here was unable to testify whether or not he had previously

served Netterville with process for other officers.

¶21.   Accordingly, the trial court did not err in its determination that Netterville had lacked

authority to accept service on Officer Edney’s behalf. The statute of limitations therefore

began to run again 120 days after Williams filed his complaint, and it subsequently expired.

Because the statute of limitations has expired, this Court must determine whether the trial



       2
         See generally Ogunbor v. May, 204 So. 3d 840 (Miss. Ct. App. 2016) (holding that
service upon defendant’s coworker was inadequate), cert. denied, 205 So. 3d 1083 (Miss.
2016); Anthony v. Gary J. Rotella & Assocs., P.A., 906 So. 2d 1205, 1208 (Fla. Dist. Ct.
App. 2005) (“Thus, the trial court had no legitimate basis to find that Anthony waived his
right to personal service or that his co-worker was authorized to waive his rights for him.”).

                                              10
court erred in determining whether Williams established good cause for his failure to serve

process. This Court has previously held that, “at a minimum, a plaintiff attempting to

establish ‘good cause’ must show ‘at least as much as would be required to show excusable

neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules

usually does not suffice.’” Holmes, 815 So. 2d at 1186 (citations omitted).

¶22.   We find that the trial court abused its discretion in its analysis of good cause. Corporal

Jackson’s indication on the proof of service that he had personally served Officer Edney is

a factor in favor of finding good cause. The analysis does not end there, however. Williams’s

lengthy delay in pursuing this action should be considered in the good cause analysis.

¶23.   The trial court wrote in its order denying Officer Edney’s motion to dismiss that

Williams had established good cause and stated,

       It is undisputed that the Plaintiff attempted to serve Officer Edney with process
       within the 120-day time limit. Accordingly, it cannot be said that the Plaintiff
       did not act diligently. The process server’s return indicated that service was
       properly completed. Counsel was not, therefore, alerted by written return or
       otherwise of any potential problem. Plaintiff was not aware of a defect in
       service of process until Officer Edney’s Motion for Relief from Judgment was
       filed. As noted in Spurgeon [v. Egger], “good cause is likely to be found when
       the plaintiff’s failure to complete service in a timely fashion is the result of the
       conduct of a third person, typically the process server.” Spurgeon [v. Egger],
       989 So. 2d [901,] 907 [(Miss. Ct. App. 2007)]. Although service was not
       properly effected through the clerk at the Greenville Police Department, the
       Court finds that Plaintiff had a reasonable belief that service was properly
       made within the statutory period. Good [c]ause is established.

The trial court, however, failed to take into account Williams’s lack of diligence in pursuing

the action. “To meet the burden of proof of good cause, the plaintiff must demonstrate that

a diligent effort was made to effect timely service. The plaintiff must show more than that



                                               11
service failed due to ‘simple inadvertence or mistake of counsel or ignorance of the rules.’”

Copiah Cty. Sch. Dist. v. Buckner, 61 So. 3d 162, 166 (Miss. 2011) (citations and quotations

omitted) (holding that “placing blame upon a process server, without more, is insufficient to

demonstrate good cause. The plaintiff must make a showing of diligence in seeking to effect

service.”)). Williams filed his complaint on March 11, 2010. On November 17, 2010, the trial

court entered a default judgment against Officer Edney. Yet it was not until April 22, 2015,

four and a half years later, that the trial court entered an order on damages. This Court

previously has stated that the primary purpose of statutes of limitation is to “compel the

exercise of a right of action within a reasonable time. . . . They are designed to suppress

assertion of false and stale claims, when evidence has been lost, memories have faded,

witnesses are unavailable, or facts are incapable of production because of the lapse of time.”

Miss. Dept. of Pub. Safety v. Stringer, 748 So. 2d 662, 666 (Miss. 1999) (quoting Smith v.

Sneed, 638 So. 2d 1252, 1263 (Miss. 1994)).

¶24.   More than ten years has passed since the incident that Williams complains of

occurred. Counsel for Officer Edney asserted that two-thirds of the witnesses that were

involved in the case would be unavailable now due to the length of time that has passed since

the incident in question. Had Williams been diligent in pursuing the action, Officer Edney

might have learned of this action before it became “stale.” Because the trial court abused its

discretion in failing to consider the length of delay, we reverse the trial court’s decision and

remand this case with instructions for the trial court to factor Williams’s length of delay in

pursuing the action into its analysis of good cause.



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                                     CONCLUSION

¶25.   Because the trial court abused its discretion in failing to consider Williams’s length

of delay in pursuing the action in its analysis of good cause, we reverse the trial court’s

decision and remand this case for proceedings consistent with this opinion.

¶26.   REVERSED AND REMANDED.

    WALLER, C.J., RANDOLPH, P.J., COLEMAN, MAXWELL, BEAM,
CHAMBERLIN AND ISHEE, JJ., CONCUR. KITCHENS, P.J., NOT
PARTICIPATING.




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