                IN THE SUPREME COURT OF MISSISSIPPI

                       NO. 2009-CT-00081-SCT

BILLY NELSON AND GAYNELLE NELSON,
INDIVIDUALLY AND AS PARENTS AND NEXT
FRIENDS OF JUSTIN NELSON, AND AS
REPRESENTATIVES OF ALL WRONGFUL
DEATH BENEFICIARIES AND HEIRS OF
BOBBY NELSON, DECEASED

v.

BAPTIST MEMORIAL HOSPITAL - NORTH
MISSISSIPPI, INC.; WILLIAM E. HENDERSON,
JR., M.D.; OXFORD CLINIC FOR WOMEN, A
PARTNERSHIP; IRA LAMAR COUEY, M.D.,
GENERAL PARTNER; R. BLAKE SMITH, M.D.,
GENERAL PARTNER; WILLIAM E.
HENDERSON, JR., M.D., GENERAL PARTNER;
AND BO MARTIN, M.D.

                      ON WRIT OF CERTIORARI

DATE OF JUDGMENT:              07/01/2008
TRIAL JUDGE:                   HON. HENRY L. LACKEY
COURT FROM WHICH APPEALED:     LAFAYETTE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:      MARGARET P. ELLIS
                               RODERICK D. WARD, III
ATTORNEYS FOR APPELLEES:       CLINTON M. GUENTHER
                               WALTER ALAN DAVIS
NATURE OF THE CASE:            CIVIL - WRONGFUL DEATH
DISPOSITION:                   THE JUDGMENT OF THE COURT OF
                               APPEALS IS REVERSED. THE JUDGMENT
                               OF THE CIRCUIT COURT OF LAFAYETTE
                               COUNTY IS AFFIRMED - 09/15/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


     EN BANC.

     LAMAR, JUSTICE, FOR THE COURT:
¶1.    In this certiorari case, we are asked to determine whether the defendant clinic and

doctors were properly served when the plaintiffs’ process server left process with the

defendants’ office manager. The Court of Appeals declined to consider this issue even

though it was raised in both direct appeals of this case. Following the Court of Appeals’

opinion in the second appeal, both parties petitioned for certiorari based on the Court of

Appeals’ refusal to consider the service-of-process issue “that was not presented to the circuit

court.” 1 The Court of Appeals further stated that “on remand, the circuit court may consider

this issue.” 2 However, both parties concede the issue was presented to and ruled on by the

trial court, and that it needs no further consideration by that court. We agree and affirm the

trial court’s finding that the plaintiffs failed properly to serve the defendant clinic and doctors

when the plaintiffs attempted to effect personal service by leaving process with their office

manager. Because of this failure, the statute of limitations has run against the defendant

clinic and doctors and the action against them must be dismissed with prejudice.

                                              Facts

¶2.    On April 26, 2001, Gaynelle Nelson gave birth to a baby boy, who died on July 14,

2001. On July 9, 2003, Gaynelle and her husband, Billy Nelson, filed a wrongful-death

action in which they alleged the medical negligence of Baptist Memorial Hospital-North




       1
       Nelson v. Baptist Mem’l Hosp-N. Miss., Inc., 2010 WL 3638795, *10 (Miss. Ct.
App. Sept. 1, 2010) (Nelson II).
       2
           Id.

                                                2
Mississippi, Inc.,3 the Oxford Clinic for Women (“Clinic”), and Doctors William Henderson,

Ira Couey, and R. Smith ( collectively “Doctors”), caused their child’s death. All of the

named Doctors are general partners of the Clinic.

¶3.    Summonses were issued on October 22, 2003, and on November 3, 2003, the Nelsons

filed a motion for additional time to serve the defendants. The trial court granted the

plaintiffs an additional ninety days to serve process. Summonses were reissued on January

9, 2004, with the returned summonses filed January 20, 2004. The returned summonses

reflect that Candace Hogue, the office manager for the Clinic and Doctors, was personally

served with process.4

¶4.    The Clinic and Doctors then filed a motion to dismiss, arguing the action was time-

barred based on three errors: (1) the Nelsons failed to comply with Mississippi Code Section

11-1-58 and attach a certificate of expert consultation to their complaint; (2) the Nelsons

failed to comply with Mississippi Code Section 15-1-36(15) and provide sixty days’ presuit

notice; and (3) the Nelsons failed properly to serve the Clinic and Doctors. Each doctor also

filed an affidavit in which he or she denied ever having been personally served with a

summons or complaint and that Candace Hogue “is not and has never been authorized or

designated as my agent for service of process or as agent for service of process on/for Oxford



       3
        Baptist Memorial Hospital-North Mississippi, Inc., did not file a petition for
certiorari. The Court of Appeals found “there [is] no question that the Hospital was properly
served with process.” Id. at *5.
       4
        The returned summonses are not contained in the record. However, it is undisputed
that the Nelsons’ process server left process with Candace Hogue.

                                              3
Clinic for Women.” Likewise, the Clinic and Doctors filed Hogue’s affidavit, in which she

denied that she was or had ever been an “agent authorized by appointment or by law to

receive service of process on behalf” of the Doctors and Clinic. She averred that an

unidentified male delivered unidentified documents to her that she later discovered were

summonses and complaints. She also averred that the person never asked or attempted to see

or serve any of the Doctors with the documents.

¶5.    Contrary to Hogue’s averments, the Nelsons filed the affidavit of their process server,

Tommy Gadd. Gadd averred that he had served all summonses on Hogue “who had advised

[him] that she had authority to accept summons” on behalf of the Doctors and Clinic. He

also averred that it was his “understanding” that “she was familiar with this case when she

accepted the summons.”

¶6.    The trial court held a hearing on the motion to dismiss, in which it heard arguments

for each of the three grounds the defendants argued warranted dismissal. Relevant to the

issue of process, Candace Hogue testified at the hearing. Hogue reiterated the information

contained in her affidavit, and she also testified that she had never before seen the person

who left the summonses and complaints. Hogue testified that she had never before accepted

service of process and that it was not her custom and practice to accept process. She stated

that the person informed her he had some papers to leave, and then he handed her a brown

envelope. According to Hogue, she asked him if he needed to speak or leave anything with

the physicians, to which he replied “no.” The Nelsons did not call Tommy Gadd to testify

at the hearing.


                                              4
¶7.        The trial court agreed with each of the defendants’ arguments and dismissed the

action with prejudice. It noted that the Nelsons had filed their action on July 9, 2003, five

days before the expiration of the applicable, two-year statute of limitations. The court ruled

that “Mrs. Hogue is not, and was not, the agent for process for the individuals/physicians nor

for Oxford Clinic for Women . . . . The individual defendants, the physicians and Oxford

Clinic for Women have never been properly served with process.” It ultimately held the

action was time-barred.

¶8.        However, on the initial appeal, the Court of Appeals ordered the action dismissed

without prejudice for the Nelsons’ failure to provide presuit notice under Mississippi Code

Section 15-1-36(15) and failure to attach a certificate of expert consultation under

Mississippi Code Section 11-1-58(1).5 In its opinion, the Court of Appeals expressly

declined to address the issue of whether the Nelsons properly had served process on the

defendants, finding the issue “moot.” 6

¶9.    On March 26, 2008, the Nelsons refiled their complaint against Baptist, the Doctors,

and the Clinic. In response to this action, the Doctors and the Clinic once again moved to

dismiss the action as time-barred. They again asserted three different grounds in support of

their motion to dismiss. First, they argued that the statute of limitations began to run the date

of the alleged negligence (April 25, 2001), not on Bobby Nelson’s death (July 14, 2001).



       5
       Nelson v. Baptist Mem’l Hosp-N. Miss., Inc., 972 So. 2d 667 (Miss. Ct. App. 2007)
(Nelson I).
       6
           Id. at 673.

                                               5
Second, they argued that the first complaint, filed on July 9, 2003, was a nullity that could

not toll the statute of limitations, since the Nelsons had failed to comply with Sections 15-1-

36(15) and 11-1-58(1). Third, they argued the Nelsons had failed to effect service of process

in Nelson I, so the statute of limitations had expired before the filing of the second (March

26, 2008) complaint.

¶10.   At the hearing on the motion to dismiss, the Doctors and the Clinic reminded the trial

court of its previous finding of deficient service of process in Nelson I. However, the trial

court made no finding regarding the service-of-process argument when it dismissed with

prejudice the Nelsons’ second action. It instead dismissed the action because of the Nelsons’

failure to comply with Section 15-1-36(15).7 But the Court of Appeals again reversed the

trial court and remanded for further proceedings.8 It ruled the Nelsons’ noncompliance with

Section 15-1-36(15) did not cause the 2003 complaint to be a nullity.9 It specifically held

that “the statute of limitations was tolled when the Nelsons filed their original complaint

presuming proper service on the defendants. There is no question that the Hospital was

properly served. There remains an issue as to whether service of process on the Clinic and

the doctors was obtained[.]” 10 The Court of Appeals then declined to address whether the

Nelsons properly had served the Clinic and the Doctors; it found the matter “was not



       7
           See Miss. Code Ann. § 15-1-36(15) (Rev. 2003).
       8
           Nelson II, 2010 WL 3638795 at *10
       9
           Id. at *5-*6.
       10
            Id. at *5 (emphasis added).

                                              6
presented to the circuit court,” but that the circuit court could consider the issue on remand.11

However, after reviewing the record, we find this issue was presented to the circuit court in

Nelson I and Nelson II and was raised in both appeals. So we take this opportunity to

resolve the only issue raised on certiorari: whether the Nelsons properly served process upon

the Clinic and the Doctors.

                                          Discussion

¶11.   The Nelsons argue that, even if service of process was insufficient in Nelson I, the

Court of Appeals dismissed the action without prejudice, which provided them the

opportunity to refile their complaint and properly serve the Clinic and the Doctors in Nelson

II. They also assert that service of process upon Hogue was proper, and that the issue of

Hogue’s apparent authority to accept process is a question for the jury, not the court. Last,

they argue the Clinic and the Doctors failed to appeal or cross-appeal the issue of service of

process in Nelson II, so it was not properly before the appellate court in the second appeal.

¶12.   Conversely, the Clinic and the Doctors correctly note that the Nelsons themselves

raised the issue of service of process in their appellant brief in Nelson II. The Clinic and

the Doctors urge this Court to accept the trial court’s ruling in Nelson I that personal service

upon Hogue was deficient, as she was not an agent for service of process. According to the

Clinic and the Doctors, the statute of limitations began running after the Nelsons had failed

to effect service of process within the ninety-day extension the trial court granted. Therefore,




       11
            Id. at *10.

                                               7
they argue the five days remaining under the statute of limitations has run, and the action is

time-barred and should be dismissed with prejudice.

¶13.   We disagree with the Nelsons’ argument that the Court of Appeals’ dismissal without

prejudice in Nelson I was an implicit ruling on the service-of-process issue. The Court of

Appeals expressly declined to address the service-of-process issue and made no ruling on it.

And as we will explain below, our caselaw shows that the court, not the jury, answers this

question.

¶14.   Service of process is governed primarily by our rules of civil procedure. Mississippi

Rule of Civil Procedure 4(d) provides in relevant part that:

       Service by sheriff or process server shall be made as follows:
       (1) Upon an individual other than an unmarried infant or a mentally
       incompetent person, (A) 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 . . . .

       ...

       (4) Upon a domestic or foreign corporation or upon a partnership or other
       unincorporated association which is subject to suit under a common name, by
       delivering a copy of the summons and of the complaint to an officer, a
       managing or general agent, or to any other agent authorized by appointment
       or by law to receive service of process.12

So we must determine whether Hogue was an “agent authorized by appointment or by law

to receive service of process.”


       12
         Miss. R. Civ. P. 4(d)(1)(A), 4(d)(4) (emphasis added). We note that Rule 4(d)(4)
is supplemented by Mississippi Code Section 13-3-55, which provides that “service of
process on any partner shall be sufficient to maintain the suit against all the partners so as
to bind the assets of the partnership and of the individual summoned.” Miss. Code Ann. §
13-3-55 (Rev. 2002).

                                              8
¶15.   In Williams v. Kilgore, this Court considered whether an office manager for two

doctors was an agent “authorized by appointment or by law” to accept service of process.13

In that case, both doctors submitted affidavits stating the office manager was not their

authorized agent to accept service of process.14 Yet the sheriff testified that the office

manager had “on many occasions” accepted service of process on behalf of the doctors and

that “he had never been instructed to the contrary on this or any other occasion.” 15 This

Court found the sheriff had properly served the doctors via the office manager, as our

caselaw does not “preclude[] 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.” 16

¶16.   But in Johnson v. Rao, this Court distinguished Williams when we held a doctor’s

receptionist did not have apparent authority to accept service of process on behalf of the

doctor.17 In analyzing the issue, this Court first noted that apparent authority has three

elements: “(1) [a]cts or conduct of the principal; (2) reliance thereon by a third person[;] and

(3) a change of position by the third person to his detriment.” 18 This Court then noted that

“we must examine each case to determine whether the person was authorized as an agent for



       13
            Williams v. Kilgore, 618 So. 2d 51, 56 (Miss. 1992).
       14
            Id.
       15
            Id.
       16
            Id. (emphasis added).
       17
            Johnson v. Rao, 952 So. 2d 151, 155-56 (Miss. 2007).
       18
            Id. at 155 (citation omitted).

                                               9
purposes of accepting service of process.” 19 In reviewing the facts, we applied an abuse-of-

discretion standard to the trial court’s findings and held:

       Here, Dr. Rao’s receptionist, Powell, testified that she was not authorized by
       Dr. Rao to accept service of process; that she was not aware that the papers
       were regarding a lawsuit against Dr. Rao; that she had never accepted service
       of process on behalf of Dr. Rao or anyone else, in the past; that the deputy did
       not ask to see Dr. Rao and did not inform her that he was there to serve process
       on Dr. Rao. Nothing in the record reveals that Powell was authorized to accept
       process or that Powell had ever accepted service of process on prior occasions.
       Further, nothing in the record contradicts that Powell did not have authority to
       accept service of process on behalf of Dr. Rao.20

Because the plaintiff failed properly to serve the doctor with process, this Court further held

the statute of limitations had expired and upheld the trial court’s dismissal with prejudice.21

¶17.   In both Johnson and Williams, the trial court held hearings to determine whether the

plaintiffs in those cases properly had served the defendants through their alleged “agents.”

And in Johnson, we specifically applied an abuse-of-discretion standard to the trial court’s

findings of fact regarding the issue of apparent authority and whether a person qualifies as

an agent under Rule 4. Therefore, we find the trial court, not the jury, determines issues of

fact regarding service of process, and we apply an abuse-of-discretion standard to the trial

court’s findings of fact.

¶18.    We find this case is similar to Johnson, in which we found the receptionist was

without apparent authority. Like the receptionist in Johnson, Hogue testified that she was


       19
            Id.
       20
            Id. at 158.
       21
            Id.

                                              10
not authorized by the Doctors to accept service of process; that she was not aware that the

papers pertained to a lawsuit; that she had never accepted service of process on behalf of the

Doctors; that the process server did not ask to see any of the Doctors and did not inform her

that he was there to serve process on any of them. And, unlike the office manager in

Williams, Hogue testified that it was not her custom and practice to accept service of process,

and she had never seen the process server, Thomas Gadd, before or since he left process with

her. Therefore, we find no abuse of discretion in the trial court’s conclusion that Hogue was

not an “agent” to accept service of process for the Clinic and the Doctors.

¶19.   Without effective service of process, the statute of limitations began to run again after

the ninety-day extension,22 which expired on February 4, 2004. And the parties agree that

five days remained on the applicable statute of limitations when the Nelsons filed their first

complaint in 2003. Therefore, this action is time-barred against the Clinics and the Doctors,

as it was filed on March 26, 2008.

                                         Conclusion

¶20.   We uphold the trial court’s finding that Candace Hogue, the defendants’ office

manager, was not an agent to accept service of process on their behalf. Because the Nelsons

failed properly to serve the Clinic and the Doctors with process, the statute of limitations has

run against these defendants. The judgment of the Court of Appeals is reversed. We affirm

the trial court’s dismissal with prejudice as to the Clinic and the Doctors.


       22
         Crumpton v. Hegwood, 740 So. 2d 292, 294 (Miss. 1999) (complaint tolls the
statute of limitations for a period of 120 days plus any other extension the trial court grants
for the plaintiff to serve process upon a defendant).

                                              11
¶21. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE
JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY IS
AFFIRMED.

    WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH,
CHANDLER AND PIERCE, JJ., CONCUR. KITCHENS AND KING, JJ., NOT
PARTICIPATING.




                             12
