Perriece Collins v. Toikus Westbrook
184 So. 3d 922
| Miss. | 2016Background
- Perriece Collins filed a wrongful-death complaint Dec. 16, 2011 naming Dr. Toikus Westbrook; Rule 4(h) required service within 120 days (until Apr. 14, 2012).
- Collins’s lead attorney assigned service to a long‑time legal assistant, who failed to effect service due to “very extreme personal problems.” Counsel discovered the omission just days before the 120‑day deadline and hired a professional process server.
- A skip‑trace located a Germantown, TN address/phone associated with “Dr. Westbrook.” Quantum Process called that number; a return caller identified himself as Dr. Toikus Westbrook and arranged to meet at Incredible Pizza.
- Process server Gary Murphree met a man at Incredible Pizza, who identified himself as Dr. Westbrook; Murphree served papers and filed an affidavit of service dated April 13, 2012.
- Dr. Jesse Westbrook (father) subsequently filed affidavits saying he, not Toikus, was served; Dr. Toikus filed an affidavit denying ever being served and stating he resided in New Orleans. Trial court dismissed Collins for failure to show good cause/excusable neglect; Court of Appeals affirmed.
- Supreme Court (Kitchens, J.) granted certiorari, held Collins proved good cause and excusable neglect, reversed and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Collins showed "good cause" under M.R.C.P. 4(h) for failing to serve within 120 days | Collins: diligent efforts were made; failure was caused by third‑party deception (Dr. Jesse) and the legal assistant’s unforeseen problems; prompt remedial steps were taken | Defendants: no service within 120 days; counsel’s failure to monitor employee and wait until day 118 shows lack of diligence and amounts to simple inadvertence | Court: Collins proved good cause — third‑party misleading conduct and prompt action supported relief; trial court abused discretion |
| Whether service presumption from return of service was rebutted | Collins: affidavit of service and process server testimony created presumption that service occurred | Defendants: Toikus and his father submitted affidavits denying service and stating Jesse was served; presumption rebutted | Court: Presumption was rebutted (trial court properly found affidavit insufficient to establish service on Toikus) |
| Whether Collins established "excusable neglect" under M.R.C.P. 6(b)(2) to obtain enlargement of time | Collins: same facts showing good cause also demonstrate excusable neglect; she timely sought extension after learning of contest | Defendants: counsel’s late action/poor oversight isn’t excusable neglect | Court: Because good cause shown, excusable neglect shown; extension warranted |
| Standard of appellate review and role of trial‑court credibility findings | Collins: record shows deliberate misrepresentation by third party; trial court’s conclusion unsupported by substantial evidence | Defendants: trial court observed witnesses and credibility determinations should be deferred to (no abuse) | Court: although trial court made credibility calls, overall evidence showed abuse of discretion in denying relief; majority reversed; dissent argued improper usurpation of credibility determinations |
Key Cases Cited
- Rains v. Gardner, 731 So.2d 1192 (Miss. 1999) (abuse‑of‑discretion standard for good‑cause findings in service‑delay cases)
- Holmes v. Coast Transit Auth., 815 So.2d 1183 (Miss. 2002) (good cause likely when delay results from third‑person conduct or evasion)
- Watters v. Stripling, 675 So.2d 1242 (Miss. 1996) (simple inadvertence or counsel mistake usually insufficient to show good cause)
- Foss v. Williams, 993 So.2d 378 (Miss. 2008) (failure to serve caused by another attorney may support finding of good cause when counsel acts promptly upon discovery)
- Pointer v. Huffman, 509 So.2d 870 (Miss. 1987) (proper return of service creates presumption that service occurred)
- McCain v. Dauzat, 791 So.2d 839 (Miss. 2001) (presumption from return of service is rebuttable with extrinsic evidence)
- Heard v. Remy, 937 So.2d 939 (Miss. 2006) (lack of communication/follow‑up with counsel’s personnel over extended period supports denial of good‑cause relief)
- Copiah Cty. Sch. Dist. v. Buckner, 61 So.3d 162 (Miss. 2011) (counsel’s failure to check for a return of service or monitor process can undermine a good‑cause finding)
- In re Holtzman, 823 So.2d 1180 (Miss. 2002) (clerical misfiling characterized as simple inadvertence—insufficient for good cause)