IN THE SUPREME COURT OF MISSISSIPPI N O. 2013-CT-00408-SCT

PERRIECE COLLINS, INDIV IDUALLY AND AS THE PARENT, LEGAL GUARDIAN AND NEXT FRIEND OF SHONIQWA COLLINS, INDIV IDUALLY

AND AS THE PARENT, LEGAL GUARDIAN AND ON BEHALF OF ANY AND ALL WRONGFUL DEATH BENEFICIARIES OF SHATAJA NIKEARA COLLINS, DECEASED

v. TOIKUS WESTBROOK, M.D.

ON WRIT OF CERTIORARI

DATE OF JUDGMENT: 02/06/2013 TRIAL JUDGE: HON. VERNON R. COTTEN TRIAL COURT ATTORNEYS: SHANE F. LANGSTON REBECCA M. LANGSTON JESSICA ELIZABETH MURRAY MARY FRANCES STALLINGS-ENGLAND L. CARL HAGW OOD JOHN MICHAEL COLEMAN COURT FROM W HICH APPEALED: LEAKE COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: SHANE F. LANGSTON REBECCA M. LANGSTON ATTORNEYS FOR APPELLEE: JOHN MICHAEL COLEMAN L. CARL HAGW OOD NATURE OF THE CASE: CIVIL - W RONGFUL DEATH DISPOSITION: REVERSED AND REMANDED - 02/11/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED:EN BANC.

KITCHENS, JUSTICE, FOR THE COURT: ¶1. Perreice Collins f iled a wrongf

ul death a ctio n o n b e h a l f o f h e r mi nor daughter, Shoniqwa, and on behalf of the wrongf ul d e a t h b e n e f

iciaries of Shoniqwa’s stillborn daughter, Shataja. Findin g t h a t Collins h ad n ot shown good c a use f or her f ailure to ef

f ect service of process upon Dr. Toikus W estbrook, the Circuit Court of Leake County

granted
Dr. W estbrook’s m otion to dism iss. Collins appealed, and this Court assigned h er case to the Court of Appeals, which af f irm ed the d ecision of the trial c ourt. Collins then f iled a Petition f or W rit of Certiorari, which this Court granted. ¶2. W e hold that Collins of f ered uncontradicted p roof o f “good cause” in explanation of her f ailure to serve process up o n D r . T o i k u s W estbrook within 120 day s of having f iled a civil com plaint as required by Rule 4(h) of the Mississippi Rules o f Civil Procedure. Collins also established “excusable n eglect,” as contem plated by Rule 6(b) of the Mississippi Rules of Civil Procedure, entitling her to an extension of tim e in which to serve process upon Dr. Toikus W estbrook. Theref ore, we reverse the judgm ents o f the trial court and the Court of Appeals and rem and this case t o the Circuit Court of Leake County f or f urther proceedings. FACTS ¶3. On Dec e mb e r 1 6 , 2 0 1 1 , C o l l ins f iled a com

plaint in the Circuit C ourt of Leake County on behalf of her m inor daughter, S honiqwa Collins, and the other wrongf ul death benef iciaries o f Shataja Nikeara Collins, a stillborn inf ant. The com

plaint nam ed Dr. Toikus
W e stbrook, a phy sician, and others as def endants and alleged that D r. Toikus W estbrook’s

2negligence, including his f ailure t o interv e n e under circum stances which clearly indicated f etal d i stress, wrongf

ully c aused the death o f the inf ant. T hus, under the provisions of Rule 4(h), Collins had 120 day s , o r until April 14, 2012, to serve the com p laint and sum m ons on all of the nam ed def

e ndants, including Dr. Toikus W e stbrook. M.R.C.P. 4(h). ¶4. S h a

n e L a n g s t o n , C o l l i n s ’ s l ead attorney , delegated the responsibi l i t y o f h a v i n g p r o c e s s served o n Dr. Toikus W estbrook to his longtim e legal a s sistant. H owever, during the 120-day period allowed f

o r service upon this def

endant, the legal assistant experienced “very extrem e personal problem s.” A f

ew day s b ef

ore the deadline, Langston realized that the legal as s istant had f ailed to ef

f e ct service of

process on the def

e ndants. ¶5. On April 11, 2012, Langston hired Quantum Process, a prof e ssional process-serving

com pany in Hattiesburg, M ississippi, t o serve D r. Toikus W e stbrook. Robert David “Davy ” Keith II, Quantum Process’s owner, using a technique c alled a “ skip trace,” a ttem pted to f ind

an a ddress f

or Toikus W estbrook. The skip trace results listed two possible addresses f or that person: one in New Orleans, Louisiana, and the other in Germ antown, Tennessee. 1 ¶6. On April 13, 2012, Keith telephoned the residenti a l t e l e phone num ber at a location that m atched the address associated with Dr. Toikus W estbrook in Germ antown, Tennessee. According to Keith, he lef t a m essage on the answering m achine f or Dr. Toikus W estbrook. Som eone, using the Germ a nt o w n , T ennessee, residential telephone num ber, returned Keith’s call. Keith explained to the caller that he had a delivery f or Dr. Toikus W estbrook. At f irst,

1 T h e d issen t o b serv es th at, o n A p r i l 1 3 , 2 0 1 2 , K eith to ld C o llin s’s co u n sel in an em ail th a t “I th in k th e ch an ces o f serv in g [ D r. T o i k u s Westb ro o k ] to d ay are v ery slim .” B u t eig h t een m in u tes later, K eith sen t an o th er em ail assu rin g C o llin s’s co u n sel th at h e w o u ld b e ab le to ef f ect serv ice o f

p ro c ess o n D r. T o i k u s Westb ro o k th at d ay .

3the caller told Keith, “he’ s n o t a vailable.” K eith told the c aller that he had a delivery f rom “Maxim Phy sicians,” Dr. Toikus W estbrook’s em ploy er. The person on the telephone then said: “Oh, that’s m e. You can bring that to m e,” claim i ng that he was o n h i s way to Incredible Pizza, a pizzeria in Germ antown. He asked w hether K e i th could m eet him there. Keith arranged f

or Gary Murphree , a p r o cess server in Mem p his, T ennessee, to m eet Dr. Toikus W estbrook at Incredible Pizza in nearby Germ antown. ¶7. According to Murphree, he arrived at Incredible Pizza and asked restaurant personnel
to p age Toikus W estbrook

. A n e mp l o y ee then escorted Murphree t o a back room where a

m an was sitting. W hen Murphree asked the m an whether he was Toikus W estbrook, the m an

s a i d “ y es,” and Murphree, w ho had hidden the sum m ons and c om plaint in a pizza box , opened the box, r em oved the papers, and handed the m an the p apers. Murphree i nf orm ed the

m an: “You have now been served.” Murphree executed an Af f i davit of Service, in which he stated that he had served the sum m ons and the com plaint on Toikus W estbrook on April 13, 2012. ¶8. On May 7 , 2 0 1 2 , D r . Toikus W estbrook f iled a m otion to dism iss, arguing that his f ather, Dr. Jesse W estbrook, actually had been served and that the c o mp l a i n t s h ould be dism issed because of insuf f icient s ervice o f process. O n M ay 21, 2012, D r. Toikus
W e stbrook f

iled the a f

f idavit of Dr. Jesse W estb r o o k i n s u pport o f the m otion to dism iss, which had been signed on May 7, 2012. In this af f idavit, Dr. Jesse W estbrook averred: That he is an adult resident citizen of Germ antown, Tennessee, over the age of eighteen y ears and legally com petent to give this af

f idavit. That he is a dentist practicing in Mem phis, Tennessee.

4Tha t h i s hom e address is 1666 Newsum Drive, Germ antown, Tennessee

38138. That he was served w ith process i n t h e a b ove-ref erenced case on or about April 14, 2012.
T h a t h e h a s no p ersonal knowledge of this case o ther than his s on is nam e d Toikus W estbrook, M.D. That he w as not practicing m edicine on or a b out June 3 0, 2010, at Leake County Mem orial Hospital. ¶9. On June 14, 2012, Dr. Jesse W es t b r o o k e x e c u t e d a s econd af f idavit, in which he stated: That he is an adult resident citizen of Germ antown, Tennessee, over the age of eighteen y ears and legally com petent to give this af

f idavit. That on or a

bout April 16, 2012, he received a telephone call at his hom e f rom a m an stating that he had som e important docum ents regarding p hy sician services f or a “Dr. W estbrook.”
Dr. Jesse W estbrook then identif ied him self

as “Dr. W estbrook.” The m an requested to m eet Dr. J e s s e W e stbrook at his hom e; however, Dr. W e stbrook inf

orm ed the m an that he and his f am i ly w ere headed to dinner at Incredible Pizza in Germ antown, Tennessee. W h ile at Incredible Pizza, a m an approached D r. W e s tbrook with a pizza b ox and pulled out som e docum ents. The m a n handed the docum ents to Dr. Jesse W e stbrook and said, “You have now been served.” The m a n im m e diately

turned around and lef

t Incredible Pizza.
Dr. Jesse W e stbrook did n ot know the content of these papers until he r ead them as the process server was leaving.
In neither the telephone call nor the personal m eeting did a n y one conf irm that Dr. Jesse W estbrook was any one other than “Dr. W estbrook.”

5¶10. The trial court held the f irst hearing on Toikus W estbrook’s m o tion to dism i ss in June 2012. The hearing w as n ot transcribed, but the uncontested af f idavit of Jessica Murray , an attorney representing Collins a t the hearing, stated that neither Dr. Jesse W estbrook nor Dr. Toikus W estbrook attended the hearing and no additional evidence w as o f f ered. The trial judge continued the hearing, inf o r m i ng counsel that he would like to consider witness
tes t i m ony bef

ore m aking a decision about whether process had b een served on Dr. Toikus
W e stbrook. ¶11. The s econd hearing on the m otion t o dism iss was held o n O c t o b e r 31, 2 012. Keith, the owner of

Quantum Process, provided the f

o llowing testim ony : LANGSTON: Mr. Keith, tell Your Honor what ef f orts y ou w e r e asked to m ake on b e h a l f of m y law f

irm to s erve p rocess on Dr. Toikus W estbrook, i n or around April of

this y ear?
KEITH: Around April of this y ear, I was contacted by y o ur law f irm , Langston and Langston, to locate a nd serve process on a Toikus W estbrook. If I [ re]call there were several—
THE COURT: Let’s ref

er t o t h e m a s junior and senior, so w e’ll be sure—or can we not? LANGSTON: Your Honor, it’s not junior and senior. THE COURT: All right. W hat is it? LANGSTON: The f

a the r i s J esse W estbrook and this gentlem an is Toikus W e stbrook. So there aren’t two Toikuses, I’m sorry . THE COURT: Dr. Jesse W estbrook is the f ather’s nam e ; is that right? LANGSTON: Yes, sir. He’s a dentist, so I understand. THE COURT: All right.

6KEITH: I was given, I b elieve, it was two addresses initially

. O n e w a s in

Picay une and one was in C arthage, if I’m not m istaken. W e attem pted to serve process on Dr. Toikus W e stbrook at both of those locations. He was at neither address. I did f

urther research in order to obtain a current a d dress f o r Dr. W e stbrook. LANGSTON: W hat kind of research did y o u do?
KEITH: It’s com m o nly ref erred to as a locator or a skip trace, a nd i t’s basically research, com

puter r e s earch that shows reported addresses of people that reside at a given address. I t’s b a s ed on—we call c redit header i nf orm ation. And when I did a search by th e n a me o f T oikus W estbrook, using his past known addresses a s a tem plate or as a m e thod to link a newer address, I discovered a n address f

or h im in Germ antown, Tennessee. I obtained a phone num ber to the address in Germ antown, Tennessee, and called. I believe I called and lef t a m essage f

or Dr. Toikus W estbrook. S o me o n e called m e back and ultim ately identif

ied him self as Dr. Toikus W estbrook. I a dvised him that I had a delivery f

or h im

. He said, y ou can—I’ m g o i n g t o be leaving m y hom e address. You can have som eone m eet m e at a pizza parlor— LANGSTON: A ll right. L et m e b a c k u p j ust a m o m ent. In that conversation y ou had, this was a return call y ou got; is that correct? KEITH: Yes, sir. LANGSTON: A nd the return caller, when y ou answered the telephone, h ow did he identif

y him self ?
KEITH: T he conversation w as had, and I told him that I h ad a delivery f or Dr. Toikus W estbrook. LANGSTON: W hat did he say originally ? KEITH: He—when I told him that, he said, he’s not available. LANGSTON: Okay

. KEITH: And I said, well, I ’ve got to give this to him

. He’s got to sign f or it. And he said, well, w hat is it about. And I told him i t was som e thing to d o with a phy sician. I had f

ound inf orm ation that Dr. W e s tbrook was af f iliated with the Maxim Phy sicians. Now, in m y experience, I b asically told him t h a t I h a d a delivery regarding Maxim

Phy sicians.

7LANGSTON: Okay . And so what did he say af ter that?
KEITH: He said, o h, that’s m e. You can b ring that to m e. And I said, okay

. He said, I—that’s m e, as in I am Dr. Toikus W estbrook. LANGSTON: Right.
KEITH: And I said, okay , I can have som eone over a t y our house within a—within the hour. A nd he stated, w ell, I ’m leaving, going to som e pizza place. He gave m e the address he also gave m e his cell phone num b er. [ sic] It was a t that tim e that I conta c t e d m y Mem p his, T ennessee process server, which is Mr. Gary Murphree, and advised him that we—I had a p a p e r that needed to be s erv ed on a Dr. Toikus W estbrook, and he’d given the inf orm ation that he would m eet him at the said pizza place. LANGSTON: All right. So y ou asked him to then—
KEITH: I a s k e d h i m then to go to the pizza place and i dentif y Dr. Toikus W e stbrook and serve him the papers. LANGSTON: A nd do y our notes ide n t i f i e d [ sic] o n w hat day that service at that pizza restaurant, was accom plished? KEITH: It was—I believe that’s going to be April . . . . ¶12. Gary

Murphree testif

ied about serving Dr. Toikus W estbrook at Incredible Pizza: LANGSTON: A nd Mr. Murphree, do y ou recall in or around April o f 2 0 1 2 , y ou were asked to deliver process to Dr. Toikus W estbrook? MURPHREE: Yes, I do. LANGSTON: And tell Y our Honor what y ou w e r e asked t o d o, who asked y ou?
M U R P HREE: David Keith’s c om pany called m e and asked m e to ser v e a paper, told m e w here t he p erson would b e, what t im e the person w ould be there. I got the papers in hand, went down to the place of

— LANGSTON: W here did y ou go?

8MURPHREE: It was a pizza place.

LANGSTON: Incredible Pizza?
MURPHREE: Incredible Pizza was the nam e o f i t. It w a s i n—of f of Germ antown Road there in Mem phis, Tennessee. LANGSTON: And tell y our honor what y o u did af t er y ou got there.
MURPHREE: W h en I g ot there, I had one of the em ploy ees to page . . . Toikus W e stbrook. A black f

em ale lady cam e out a n d she took m e b ack t o the—there was a li ttle r oom b ack there and there w as a gentlem an sitting there. I asked h i m i f h e w as T oikus W estbrook; he said y es. I had the papers in a box. I opened the box, I handed him the papers, and I lef

t. ¶13. In addition to testif y ing at the hearing, both Keith and Murphree subm itted af f idavits with substantially the s a m e i nf orm ation each had provided i n his testim ony . Mor eover, Collins introduced evidence related to the “skip trace” Keith had perf orm ed to identif

y the address and telephone num ber of Dr. T o i k u s We stbook. The s kip trace indicated that the
Newsum D rive address in G erm antown, Tennessee, was a recent address associated with Dr. Toikus W estbrook. ¶14. Neither Dr. Jesse W estbrook nor Dr

. T o i k u s We s t b r o o k appeared at the m otion hearing or testif

i ed. I nstead, D r. Toikus W estbrook relied on the inf o rm ation contained in Dr. Jesse W estbrook’s af

f idavits dated May

7, 2012, and June 14, 2012. He also subm itted his

own af f i davit in support o f his m otion to dism iss, which was dated Novem ber 15, 2 012, m ore than two weeks af

ter the m otion hearing w as c onducted. I n h i s a f f idavit, Dr. Toikus
W e stbrook averred: That he is an adult resident citizen of New Orleans, Louisiana, over the age of eighteen y e ars and legally com petent to give this af

f idavit.

9That his current residence address has b een 1542 D ebattista Place, New

Orleans, Louisiana 70131 since 2005. That his reside n c e t e l ephone num ber in New Orleans, Louisiana, has been 504- 365-2153 since 2005. That his f a ther is Jesse W e stbrook D.D.S. That his f ather, Jesse W e stbrook’s, residence address is 1666 Newsum Drive, Germ antown, Tennessee 38138. That his f ather, Jesse W estbrook’s, residence t elephone n um ber is 901-754- 4472. That he has never been served with process in this case. ¶15. On February 8, 2013, the trial court entered a judgm ent of d ism issal in f avor of Dr. Toikus W estbrook. The court f ound Dr. Toikus W estbrook had not been served within the 120-day p eriod a nd that Collins h ad not s hown “ good cause” o r “excusable neglect” to justif y an enlargem ent of

tim e in which to serve him

.

DISCUSSION ¶16. A trial court’s f

inding o f f

act on the e xistence of good cause f or the d elay in service of process has been deem ed “a discretionary ruling . .

. and entitled to def e rential review.” Rains v. Gardner , 7 3 1 S o. 2d 1192, 1197-98 (Miss. 1999). W h en reviewing f act-based f indings, this Court exam ines “ whether the trial court abused its discretion a nd whether there was substantial evidence supporting the determ ination.” Id. at 1197. ¶17. Mississippi Rule of Civil Procedure 4(h) states: If a service of the sum m o ns an d c o mp l a i nt is not m ade upon a def endant within 120 day s af

ter the f iling of the com

p laint and the party on whose b ehalf such service was required cannot show good cause w hy such service w as not m ade within that period, t h e action shall b e dism i ssed a s t o that def endant

1 0without prejudice upon the court’s own initiative with notice to s uch party or

upon m otion. M.R.C.P. 4(h). ¶18. If a process s erver has executed a return p roperly , there is a presum ption that service of process has occurred. Pointer v. Huffm an , 50 9 S o. 2d 870, 8 72 (Miss. 1987). The plaintif f ’s attorney i n this case, b ecause Murphree had executed an Af f idavit of Service, had good reason to believe t h a t s ervice of process had been accom p lished upon Dr. Toikus
W e stbrook. However, this presum ption that s ervice has b een ef f ected is rebuttable through the use of extrinsic evidence, including the testim ony of the party who i s contesting service. McCain v . Dauzat , 791 So. 2d 839, 842 (Miss. 2001). H ere, Murphree executed a n Af f idavit of Service in which h e swore that he h a d served the sum m ons and the com plaint on Dr. Toikus W estbrook on April 13, 2013. Thus, Collins was e n titled to a presum ption that service of process was ef

f ected. But, D r. Toikus W e stbrook then swore, via af f idavit s u bm itted to the t r i a l court, that he did not r eceive service of process. Moreover, Dr. Jesse W estbrook

swore, also via a f

f idavit, that the process server served both the sum m o ns and c om plaint on him at Incredible P izza in G erm antown, Tennessee. Theref ore, the trial c ourt did not abuse its discretion i n determ ining that process was not served o n Dr. Toikus W estbrook, but that
process instead was served on Dr. Jesse W estbrook, and that Dr. Toikus W e stbrook had thus rebutted the presum

ption that service of

process was ef

f ected properly

by Murphree. ¶19. W e turn t o the trial court’s ruling that Collins f ailed t o show good cause why service
was not m ade within 120 day s. The Rules of Civil Procedure provide that if a plaintif f can establish “good cause” f

or f ailing to serve process o n a def e ndant within 1 20 d ay s of f iling

1 1his or h er com plaint, d ism issal is not an appropriate rem edy

. M.R.C.P. 4(h); see Webster v. Webster , 834 So. 2d 26, 28 (Miss. 2002) (citing Watters v . Stripling , 675 So. 2d 1242, 1244 (Miss. 199 6 )) (“The rule h as also been interpreted to require that, if the d ef endant is n ot served within 120 day s, the plaintif f m u st eith e r r e f

i l e t h e com

plaint bef ore the statute of lim itations expires or s h o w g o o d cause; otherwise, d ism issal is proper.”). “To e s tablish ‘good cause’ the p l a i n t i f

f m ust dem onstrate at l east as m uch as w ould be required to show excusable neglect, ‘ as to which sim ple inadvertence or m istake of counsel or ign o r a n c e of the rules usually does not suf f i ce.’” Webster , 834 So. 2d at 28 ( citations om itted). Moreover,
to dem onstrate “good cause,” the plaintif f m ust show that a diligent ef

f ort was m ade to serve the def endant in a tim ely m anner. Foss v. William s , 993 So. 2d 3 78, 379 (Miss. 2 008). The plaintif f m ust show m ore than that service f ailed due to “sim

ple inadvertence or m istake of counsel or ignorance of

the rules.” Watters , 675 So. 2d at 1243. ¶20. This Court has h eld that “good cause is likely (but not alway s) to b e f o und when the plaintif f ’s f ailure to com

plete service in tim e ly f

ashion is a result o f t h e c o n d u c t of a third
person, ty pically the process server.” Holm es v. Coast Transit A uth. , 815 So. 2d 1183, 1186 (Miss. 2002) (quoting 4B Charles Alan W right & Arthur R

. Miller, F e d e r a l P r actice and Procedure § 1137, at 342 (3d e d

. 2 0 0 0 ) )

. A plaintif f a lso m ay show “good cause” if “the def endant has evaded service of process or engaged in m isleading conduct, the plaintif f has acted diligently in try i ng to e f f ect s ervice o r there are understandable m itigating circum stances

. . . .” Holm es , 815 So. 2d at 1186 (quoting 4B C harles Alan W right & Arthur
R. Miller, Federal Practice and Procedure § 1137, at 342 ( 3d ed. 2 000)). W hat am ounts to

1 2‘good cause’ under any particular set of circum stances is necessarily f act-sensitive.” Lindsey v. United States R.R. Bd. , 101 F.3d 444, 446 (5th Cir. 1996). ¶21. In this c ase, Collins adduced evidence showing: (1) that through the course of Keith’s research, the address on Newsum Drive in Germ antown, T ennessee, appeared as a current addre s s f o r Dr. Toikus W estbrook; ( 2) that through the course of Keith’s research, the telephone num

ber associated with the Newsum Drive hom e in Germ antown was listed a s a residential telephone num ber associated with Dr. T oikus W estbrook; (3) that Keith c alled the telephone num

ber associated with the Newsum Drive hom e a nd l ef t a m e ssage on the answering m achine f

or D r. Toikus W estbrook; (4) that s om eone who had re c e i v e d t h a t

m essage at that telephone num ber had returned Keith’s call; ( 5) that Keith told the person on the telephone that h e h ad a delivery f or Dr. Toikus W e stbrook f r om “Maxim Phy sicians,” Dr. Toikus W estbrook’s em

ploy er; (6) that the person on the t elephone identif ied h im self as Dr. Toikus W estbrook; (7) that af ter process server M urphree arrive d at Incredible Pizza, he paged “Dr. Toikus W estbrook;” (8) that a lady escorted him to a back room where he served
process on a m an who identif ied h im self a s Dr. Toikus W estbrook; and ( 9) that Murphree executed a n Af

f idavit of Service i n which he stated that he had served the sum m ons and the

com plaint on Toikus W estbrook on April 13, 2013. ¶22. W e f

ind that the trial court abused i ts d iscretion by f inding that Collins f

ailed to show good cause. The record ref lects that Collins m a de a s u f f icien t showing of good cause f or having f ailed to serve Dr. Toikus W estbrook within 120 day s of f iling h er com

plaint. Collins presented com

pelling evidence that there were “understandable m i tigating c ircum stances”

1 3excusing Collins’s f a ilure to serve Dr. Toikus W estbrook within 120 day s . It is undisputed that Collin s ’ s c ounsel f

iled s u it within the tim e allowed by the applicable statute of lim itations and a ssigned to a trusted em ploy e e the task of ef

f ecting service of process. Due
to “very extrem e personal problem s,” this person f ailed to com

plete the assignm ent. Upon discovering this def

iciency , the attorney im m ediately took appropriate steps to ef f ect service within what rem ained of

the 120-day

period. ¶23. The record shows overwhelm ingly that Co l l i n s ’ s f a i l u re t o m ake tim ely service of
process on Dr. Toikus W estbrook was caused entirel y b y “ t h e c o nduct o f a third person,”

nam ely , Dr. Jesse W estbrook. Holm es , 815 So. 2d at 1186 (quoting 4B Charles Alan W right & Arthur R

. Miller, Federal Practice and Procedure § 1137, at 342 (3d ed. 2000)). The trial court’s f inding that Dr. Jesse W estbrook did not m i srepresent his identity was not supported by substantial e vidence and w as an abuse of discretion. The actions of D r. Jesse W estbrook and/or Dr. Toikus W estbrook were, at least, m isleading. By r eturning Keith’s call and by agreeing to receive a delivery f rom Dr. Toikus W estbrook’s em ploy er, Dr. Jesse W estbrook interf ered with and actually o bstructed Collins’s attem pts to serve process on Dr

. T o i kus
W e stbrook. But f

or Dr. Jesse W estbrook’s subterf uge, Collins m ay have been able to serve the real Dr. Toikus W e stbrook within the 1 20-day period, or s he would have b een able to f ile a tim ely and possibly

successf ul request in the trial court f o r an extension o f

tim e in which

t o serve Dr. Toikus W estbrook. The prof essional process server hired b y the plaint i f f ’ s attorney , and, ultim ately , at the e xpense of the plaintif f , was m isled b y what can be viewed only as the deliberate deception of a third party who turned out to be a c lose relative of the

1 4def

endant. This third party ’s c orrupt conduct caused a f a l s e r e t u r n to be m ade on process issued by and returned to a Mississippi trial court. No litigant should be rewarded f or such treachery

. ¶24. The record does not suggest that Collins had reason to suspect that process had been served o n any p erson o ther than D r. Toikus W e stbrook. Af ter having the sum m ons and

com plaint served o n the person she had been led to believe w as Dr. Toikus W e s tbrook, the plaintif f reasonably would not have continued to t ry t o s erve him

. Af ter all, Murphree had executed an Af

f i davit of Service, in which he said that he had served the sum m ons and the

com plaint on Dr. Toikus W estbrook on April 13 , 2 0 1 2

. T h e A f f idavit o f Service creates a presum ption that service was properly executed and it is p r obative of the plaintif f ’s goodf aith b elief that the def

endant h a d been served, n otwithstanding the trial c ourt’s f inding that Dr. Toikus W estbrook, in f act, had not been served process. ¶25. Sim ilarly , in Foss v. William s , 993 S o. 2d 378, 379 (Miss. 2008), the def endant was

ser v e d o ne day af

ter the 120-day period had expired. The plaintif f ’s counsel argued that, although he had associated local counsel who had been r esponsible f or ef f ecting service, local counsel had neglected t o s erve the de f e n d ants, and counsel did not discover the

om ission until 118 day s a f ter the c om

p laint had been f

iled. Id. As in this case, when counsel discovered the om ission, counsel im m ediately sought to have the def endants s e rved. Id. Local counsel later withdrew f rom the case. Id. This Court held that “good cause” had been proved because the f

ailure of service was caused by the inaction o f another attorney who later

1 5had withdrawn f rom the case, a n d b ecause counsel had taken im m e diate action to ef f ect service upon discovering the problem

. I d. a t 379-80. ¶26. The cases cited by the dissent provide poor support f or its conclusion t h a t C o l l i n s f ailed to show good cause. Contrary to the d issent’s position that this Court should conf ine its review in this case to the f irst 118 day s, this C o u r t e x a mi nes what occurred d uring the entire 120-day period to assess whether good cause was shown. Unlike the f acts i n this case, in Heard and H oltzm an , no attem

pt at service was m ade within 120 day s. Heard v. Rem y , 937 So. 2d 939, 944 ( Miss. 2006); In re Holtzm an , 823 S o. 2d 1180, 1181 (Miss. 2002). In this case, Collins a ttem

p ted s e rvice w ithin 120 day s, b ut s ervice was thwarted by the deceptive acts o f a third person. U nlike in Heard and Holtzm an , C ollins had no reason to suspect that tim ely service had not b e e n a c h i e ved. And Copiah County School D istrict v. Buckner , 61 So. 3d 1 62, 164 (Miss. 2011), involved m isconduct b y a process server, not deceptive acts by

the def endant’s relative in an ef

f ort to obstruct service of

process. ¶27. W e hold that Collins m ade a suf f icient showing of g o o d c a u s e f o r h er f ailure to

accom plish service of process on Dr. Toikus W es t b r ook within 120 day s a nd that the trial court abused its discretion by f i nding otherwise. ¶28. Alternatively , C ollins argues that, if D r. Toikus W e stbrook rebutted the presum ption that service was ef

f ected, and if

she a lso h ad not established “good cause” in so d oing, she

w a s entitled to a n extension of tim e under Rule 6(b)(2) o f the Mississippi Rules of C i v i l Procedure, which provides:
W h en by these rules o r by notice g iven thereunder or by order of court an act is required or allowed to be done at or within a specif i ed tim e, t h e c o u r

t f or

1 6cause shown m a y . . . upon m otion m a de af t er the expiration of

the specif

ied period perm it the act t o be done where f ailure to act was the result of excusable neglect. M.R.C.P. 6(b)(2). ¶29. Collins a d v anced her request f or an extension o f tim e in m ultiple f ilings i n the trial
court and during the hearing o n D r. Toikus W estbrook’s m o tion to d ism iss. In her “ Response
to Motion to Dism iss,” which wa s f i l e d June 1 5, 2012, C ollins argued that “[ i]n the alternative, P laintif

f s request additional tim e to properly ef f e c tuate service on the Def endant [ Toikus W estbrook].” Additionally , during the October 30, 2012, hearing r egarding Dr. Toikus W estbrook’s M otion to Dism iss, Collins m oved ore tenus f or an extension of tim e: [ W ]e t o o k e xtraordinary , extrem e steps to m ake sure process w as served within the 120 day period, and we had every good f a ith b elief that process h ad been served on D r. T oikus W e stbrook, because of all the testim o ny that the Court has – has just heard.
A n d w e o n ly f

irst becam e aware that they ’ve alleged D r . Toikus W e stbroo k had not been served, and when they f i led their m otion to dism i ss in May

. A nd we tim ely and im m ediately responded to that with, num ber one, we think we served him , b ut if that’s not him , that’s when we asked the Court

. . . . That’s when we asked the C o u r t u n d e r Rule 4(c) [ sic], in the alternative, f or additional tim e to serve Dr. Toikus W estbrook, if , in f act, he didn’t r eceive service.
In a brief she f

i led on Novem

ber 12, 2012, a f

ter the h earing, Collins argued: “Alternatively , the UNDISPUTED Facts Require the Court t o Allow Plaintif f s Additional Tim e to Serve the [ Toikus W estbrook].” Finally , in a brief f iled Decem

ber 7, 2012, Collins m aintained: Plaintif f s h ave overwhelm ingly shown that good cause e x i s ts to extend the 120-day t im e period within which t o ef f ect service of p rocess. As s u ch, a dism i ssal w ith prejudice is not justif ied. Plaintif

f s theref ore respectf

ully request this Court to deny Def e n d a nt’s M otion to D ism iss and grant to Plaintif f s an extension of tim e t o serve the D ef e n dant, Dr. Toikus W estbrook.

1 7¶30. The trial court denied Collins’s m otion f or an e nlargem ent o f tim e upon a f i nding that Collins had f

a iled to show excusable neglect. This Court has he l d t h a t the s tandards f or deciding whether a plaintif f has dem onstrated “good cause” under Rule 4(h) and “excusable neglect” under Rule 6(b)(2) a re virtually identical. Watters , 675 S o. 2d at 1244 ( “To establish ‘good cause’ the plaintif

f m ust d em o nstrate at least as m uch a s would be required to show excusable neglect, as t o which sim ple inadvertence o r m istake of counsel or ignorance of the rules u sually does not suf

f ice.”) (internal citations om itted). Because Collins has established
g o od cause f

o r her f ailure t o serve Dr. Toikus W estbrook within 120 day s of f iling h e r

com plai nt, she also h as proved excusable n eglect, entitling her to an extension of tim e. Collins showed that a prof essional process server determ ined that the Newsum D rive hom e in Germ antown, Tennessee, was Dr. Toikus W estbrook’s recent r esidence. Keith called the residential telephone n um ber a ssociated with this address a nd lef t a m essage f

or “Dr. Toikus
W e stbrook.” Som eone returned his call f rom that n um

ber. Keith inf

o rm ed the caller that he had a delivery f

or Dr. Toikus W estbrook f rom Maxim Phy sicians, Dr. Toikus W estbrook’s

em ploy e r. Finally , Keith sent Murphree to I ncredible Pizza to serve Dr. Toikus W estbrook
process f or this suit. Murphree then executed an Af f idavit of Service. These f a c ts establish excusable neglect justif

y i ng the f ailure to serve Dr. T oikus W e s tbrook and entitling Collins to an extension of

tim e to in which perf

ect service. CONCLUSION ¶31. In s um , we f

i nd that Perriece Collins o f f ered suf f icient proof of g ood cause explaining her f ailure to serve Dr. Toikus W estbrook within 120 day s , as required by Rule 4(h) of

the

1 8Mississippi Rules of Civil Procedure. M oreover, Collins established excusable n eglect, as

articulated in Rule 6(b) of the Mississippi Rules of C ivil Procedur e , e n t i t l i n g her to an extension of tim e to serve pro cess on Dr. Toikus W estbrook. Theref ore, w e r everse the judgm ents of the Court of Appeals and the Circuit Court of Leake C ounty

. W e rem and this case to the Circuit Court of Leake County

f or f urther proceedings. ¶32. REVERSED AND REMANDED. WALLER, C.J., RANDOLPH, P.J., A ND KING, J., CONCUR. DICKINSON, P.J., CONCURS I N PART AND IN RES U L T WITHOUT SEPARATE WRITTEN OPINION. COLEMAN, J . , DISSENTS WITH SEPARATE WRI T T E N OPINION JOINED BY LAMAR, J. MAX WELL, J., NOT PARTICIPATING. COLEMAN, JUSTICE, DISSENTING: ¶33. T o d a y ’ s m a

j o r i t y opinion drives M i s s i s s i p p i ’ s a p p e l l a t e s t a n d a r d

- o f

- r e v i e w jurisprudence as f

ar of f the tracks as one m ight ever w ish to see. Not only does the m ajority f ind the trial court erred on a n issue we review only f or abuse of discretion

– the presence of absence of good cause f

or f ailure to serve process – but the m ajority , even m ore egregiously , holds the trial c ourt erred in its w itness-credibility determ inations, which should be subject
to reversal only upon a s howing of m anif e s t e rror. N ever bef

ore today have we held t h a t good cause f

or delay in serving p rocess exists when the plaintif f ’s attorney entrusted the job of serv i c e of process to a n em ploy ee who f

a iled to take steps to serve p rocess and in the

a b s e n ce of adequate attorney o versight. I n f a c t, today ’ s case arguably o verrules sev e r a l

cases, discussed below, i n which we have held the opposite. Af ter t oday , an attorney who h a n d s of f the job of service of process to an em p loy ee and f

ails to diligently m oni t o r t h e progress of servi c e can claim good cause d espite the f ailure. Further, the m ajority tacitly

1 9f

inds error in the trial judg e ’ s determ i nation that a witness who t estif ied in his presence lacked credibility . Accordingly , I respectf ully dissent. ¶34. “A trial court’s f

inding of f

act on the existence o f good cause f or the delay in service of process has been deem ed a discretionary ruling

. . . and entitled to def erential review on appeal.” Holm es v. Coast Transit Auth. , 815 So. 2d 1 183, 1185 (¶ 6 ) (Miss. 2002) (quoting Rains v. Gardner , 7 3 1 So. 2d 1192, 1197-98 (Miss. 1999)). I n r e v i e w i n g that f act-based f inding, the Court exam ines only “whether the trial court a bused its discretion and whether there was substantial evidence in s upporting the d eterm i nation.” Rains , 7 31 S o. 2d at 1197. ¶35. The trial court determ ined in its Final Judgm e nt, a nd the record conf irm s, that Collins wholly f ailed to take a ny a ction to serve process until Day 118 of the 120-day period. Collins f iled her com

plaint on Decem

ber 16, 2 0 11. Theref

ore, the 1 20-day period f or service of
process ended on April 14, 2 012. On April 12, 2012, plaintif f ’s coun s e l f

irst contacted a process server r e g a r d i n g serving Dr. Toikus W estbrook. According to the af f idavit of the
process server, service was f irst thereaf

ter attem pted at Dr. Toikus W e st b r ook’s known addresses of record i n Carthage and Picay u ne, b ut the attem

pts f a iled. Again according to the process server’s af

f i davit, he then r a n a skip trace which revealed several possible addresses f

or Dr. Toikus W estbrook, which ranged geographically f rom M em

phis, Tennessee, to New Orleans, Louisiana. ¶36. In the case sub judice , Collins’s attorney m ade no attem pt t o s e rve p rocess until 118 of the 120 day s had passed, and Collins did not f ile a m otion to extend the 120-day period until af ter it had expired. The question, then, we should consider is whether the trial judge

2 0erred i n f

inding good cause did not exist f or the 118-day delay

. I do not think he did. W hile
not dispositive, I f

irst n ote the f

ailure of the plaintif

f to f i le a m o tion f

or an extension of the 120-day p eriod p rior to its expiration. “W hile there is no actual requirem ent that a m otion f or additional t im e be f

iled, ‘a plaintif

f who – prior to expiration of the service period – f iles

a m otion representing that h e or she has been unable to serve pro c e s s , w i l l mo re likely succeed in dem onstrating diligence than a plaintif f who does nothing.’” Copiah Cty. Sch. Dist. v. Buckner , 61 So. 3d 162, 168 (¶ 21) (Miss. 2011) (quoting Montgom e r y v. Sm ithKline Beecham Corp. , 910 S o. 2d 5 41, 546 (¶ 15) (Miss. 2 005)). As noted by the trial judge, when contacted to serve process two day s bef ore the expiration of the 1 20-day period, the process server inf

orm ed Collins’s counsel that, in light of the m u ltiple possible addresses f or Dr. Toikus W e stbrook, “I think the chances of locating and serving h im today are very slim .” Despite the warning and h aving only two day s to act, Collins did n ot f ile a m otion f

or an extension of

the 120-day

deadline. ¶37. Furtherm ore, as f

ound by the trial court and as the m ajority writes, Collins’s attorney entrusted the job of serving process t o a legal assistant. Nothing in the record indicates that counsel m onitored the progress of the e mp l o y e e in accom plishing the task until April 12, 2012, or Day 118. The f ailure of counsel to m onitor h is legal assi s t a n t ’ s p r o g r ess in

com pleting the assigned task of s ervice of process is at m o st “sim ple inadvertence or m istake of counsel,” which does not rise to the level of good cause o r excusable neglect. LeBlanc

v. Allstate Ins. Co. , 809 So. 2d 674, 677 ( ¶ 12) (Miss. 2002) (em phasis added) (quoting Watters v. Stripling , 675 So. 2d 1242, 1243 (Miss.1996)).

2 1¶38. In Heard v. Rem y , 9 3 7 S o. 2d 939 (Miss. 2006), the plaintif f , T i f f any Heard, f

iled a

com plaint against the def

endant, Keith R em y , f

or personal injuries allegedly resulting f rom

a m otor v ehicle collision. Id. a t 9 40 (¶ 2). H eard f iled her com

p laint and process issued f ive day s bef ore the statute of lim i tations expired. However, Heard f ailed to serve process bef

ore the e xpiration of the m a ndated 120-day tim e period. I d. Af ter the expiration of the 120-day period, Heard f

iled a m otion f

or an e x t e n s i o n o f tim e to serve process, and the trial court granted the m otion w ithout m a king a ruling as to whether good cause existed f o r h er f ailure
to serve within the original 120 day s. Heard successf ully served pro c e s s d u r i n g the t im e allowed in the trial court’s granted extension. Id. at 940 (¶ 3). Rem y then f iled a m otion f

or j u d g ment on the pleadings, c ontending that the statute o f lim itations ran in the interi m between the expiration of the o r iginal 120 day s and the trial court g ranting the extension of tim e to serve p rocess. I

d. a t 941 (¶¶4, 15). I n ruling on the m otion a n d dism issing Heard’s

com plaint as tim e-barred, the trial court f u rther f ound that Heard had not shown good cause f or f a iling to ef

f ect tim ely service of process during the original 120-day period. Id. at 941 (¶ 5). On appeal, we af

f irm ed, holding that the trial court did not abuse i ts discretion because the evidence showed that the f ailure to serve stem m ed f rom a m iscom m

unication between Heard’s counsel and counsel’s own em ploy e e. I d. a t 943-44 (¶ 19-21). ¶39. L i k e C o l l i n s i n the case sub judice , Heard contended that the trial judge erred i n f inding a n absence o f good cause f or f ailing to serve process during the 120-day tim e period. Heard , 937 So. 2d at 943 ( ¶ 19). Also like Collins, Heard’s counsel relied on an em ploy ee
to see to it that process was served. Id. at 9 43 (¶ 20). However, unlike today ’s case, in

2 2Heard the plaintif f never a ttem

pted service within the 12 0

- d a y p eriod, Id. a t 9 44 (¶ 20), where here, Collins f

inally attem

pted service of process af

ter 118 day s h ad elapsed. I do not view the two-day d i f

f erence as m

uch of a distinction. The question the trial judge answered, and that we should review, i s whether Collins h a s d e m onstrated good cause f o r f ailure to

serve p rocess within the 120-day period when counsel did nothing f or the f i rst 118 day s and counsel’s neglect dem onstrates a l ack of diligence and led to the f ailure to t im ely serve. The f ailure that leads to the quest f or good cause is not the f

ailure to attem

pt s ervice within 120 day s, but the f

ailure to achieve service. One m ight a sk whether the m a jority would f

ind good

cause if a plaintif

f f a iled to a ttem

p t service until the 23rd hour of the 120th d ay , or the 12th hour of t h e 120th day , or the b eginning of the 120th d ay , and so f orth. W hether the delay

e q uals 118 o f the 120 day s or all of the 120 day s , under Heard the answer is the sa me . I n holding that the trial court did not abuse its discretion in f inding no good cause existed, the Heard Court wrote, “The f ailure to attem

pt process on Rem y m ay h ave been the result o f a lack of com m

unication and f

ollow-up within the of

f ices of Heard’s counsel. The c ontinuing f ailure to attem

pt service f

or f our m onths, without adequate explanation, s h ows a lack of diligence b ey ond excusable neglect.” Id. at 944 (¶ 20). In the c ase sub judice , C ollins f ails
to explain why her counsel did n ot com m u nica t e a n d f

o l l ow up with the legal assistant assigned to ef

f e ct service of process. That said legal assistant m ay have been suf f ering through som e sort of personal issues does not explain counsel’s inadvertence and f ailure to

m onitor. In the instant case, Collins dem onstrated a m arked lack of diligenc e b y d o i ng

2 3nothing f

or 118 day s and by f

ailing to f ile a m otion f

or an extension of the 120-day deadline upon learning at the tim e that process had not in f act been served. ¶40. In In re Holtzm an , 823 So. 2d 1180 (Miss. 2002), plaintif f attem pted to show good

cause b y contending that the sum m ons and com plaint had b een m i sf

iled by a new f

ile clerk. Id. at 1 182 (¶ 4). T he Holtzm an Court characterized the events as “clear an exam ple as one could wish of ‘sim

ple inadvertence or m istake of counsel.’” Id. at 1183 (¶ 9 ). In language that negates the m ajority ’ s attem pt to excuse Collins’s 1 18-day f ailure by writing that Collins had no reason t o believe process has n ot been served, (Maj. Op. at ¶ 26), the Holtzm an Court continued, “[ O]rdinary attention to his c aseload would have led W ard to n otice that he had received no answer f

rom Grand Casino and to check his case f ile.” H oltzm an, 823 So. 2d

at 1183. W hile, again, Collins asserts that the legal a ssistant tasked with serving process was suf f e ring through p ersona l p r o b l e ms that af f ected her perf

orm ance, the lack of service of
process was som ething that would have been discovered s oone r w i th what the Holtzm an Court described as “ordinary attention.” ¶41. In Copiah County School District v. Buckner , 61 So. 3d 162 (Miss. 2011), the Court f ound an abuse of discretion, reversed the trial j udge’s f ailure to d i s m i s s a case f

or f ailure
to tim ely serve process, and r endered judgm ent in f a vor of the def

endants. Charles Buckner f i l e d a personal injury com plaint against the C opiah County School District and Kenneth Funches, a bus driver, af

t er he allegedly received injuries f rom a collision with a school bus driven by Funches. Buckner , 6 1 So. 3d at 1 64 (¶ 3). Buckner had sum m onses issued f or the def endant, but f

a iled to serve them

. Id. More than a y ear af t er the f iling of the com plaint,

2 4the court ordered a status conf erence with Buckner’s counsel. I d. at 164 (¶ 4). Prior to the hearing, Bu c k n e r ’ s counsel f iled an application f

or a clerk’s entry of def ault with an

accom pany ing af

f idavit averring that process h ad been s e rved. Id. Apparently , the process

s e r v e r r eported to Buckner’s counsel that process had been served when it in f act had not. Id. a t 164 (¶ 5). W hen Buckner’s counsel learned the truth, he withdrew his application f or entry of def

ault. On February 3, 2009, the trial judge orally granted additional tim e to serve process. I

d. at 1 64-165 (¶¶ 5, 7). Buckner served the school district and Funches on June 4 and June 5, 2009, respectively

. Id. at 165 (¶ 7 ). The extension of tim e granted by the trial court ended on June 2, 2009. Id. at 165 (¶ 10). Buckner’s counsel claim ed that he did not receive a copy of the order granting tim e until June 4, 20 0 9 , d espite attem pts by his legal assistant to obtain it. Id. at 165 (¶ 9). The legal assistant t e s t i f i e d a t the h earing on the def endants’ m o t ions f

or sum m ary

judgm ent that som eone at the clerk’s of f i ce had told her the order had been signed and prom ised to f ax it t o her, but that she never received a f axed
cop y u n t i l J une 4. She told Buckner’s attorney that she had been told the order had been signed, b ut the attorney did not a sk when. Id. at 165 (¶ 1 0). The trial judge f ound that good

cause existed f

or Buckner’s f

a ilure to t im ely serve process and denie d t h e d ispositive

m otions. Id. at 165 (¶ 11). ¶42. On appeal, the Buckner Court held that the trial court had abused its discretion and reversed and rendered the c ase. Id. at 171 (¶ 3 1). I n holding that no good cause existed, the Court wrote as f

ollows: Buckner’s counsel asserted that he had relied upon the p r o c e s s server’s a s s e r tion that the def

endants had been served. Counsel’s belief that s ervi c e

2 5had been achieved was e videnced by his f iling of a n af

f idavit to that ef

f ect with an application f

or e ntry o f d e f

a u lt w hen the def

endants had f

a i led to answer. However, a m ore attentive r e v i e w o f the f ile would have inf

orm ed counsel tha t , b e c a u se there was no return of service f or the def endants, the reason they had f

ailed to answer was that they had not b e e n s e r v e d with process. Evidently , Buckner’s counsel did not check f or a return of service until af ter the statute of lim itations had expired, af ter the trial court had set a date f or a status hearing, af

ter he had f

iled a n a pplication f

or entry o f def

ault, and af ter opposing counsel, upon discovering the lawsuit, h ad notif ied h im that their clients n e ver had been served. In Heard , the Court f o und that counsel’s lack o f com m

unication and f

ollow-up concerning s e rvice constituted m istake or inadvertence. Heard , 937 So. 2d at 944. The conduct at issue here likewise m anif ested a lack of diligence a n d am o unts t o m istake or i nadvertence. W e f i n d t h a t t he trial court abused its discretion in ref using t o set aside th e extension of tim e, b e cause Buckner did not p resent substantial ev idence to support a f

inding of good cause f

or the f ailure to serve the def

endants within the 120 - day

period. Buckner , 61 So. 3d at 168 (¶ 20). Accordingly , the u nanim o us Buckner Court reversed the discretionary ruling of the trial court f inding g ood cause f

or f ailure to s erve process because, despite representations f

rom the process server that process h ad been served, counsel did not check f or a re t u r n of service of process. I f the d escribed f a ilure to m onitor in Buckner

m andated a reversal of the trial judge’s discretionary f inding of good cause, then the f ailure
to m onitor in today ’ s case s uf f ices to uphold the trial court’s discretionary f inding of a lack of good cause. The m ajority would distinguish Buckner d ue to the f

act that the attorney ’s inadvertence in Buckner include d r ely ing on r epresentations f rom a process s erver rather than an e m

ploy ee, but the distinction works against the m ajority

. If the Court held that a trial
court abused its discretion in f inding good cause e x isted when counsel had f ailed to f ollow
up on representations f

rom a nonem

ploy ee, then certainly we should

– a n d clients should

– be able to expect attor n e y s t o keep track of their own em ploy ees’ perf

orm ance or

2 6nonperf

orm ance, a s the case m ay be, of their assigned tasks, and hold that a trial court did
not abuse h i s discretion in f inding an absence of good cause when a n attorney f ails to

m onitor the progress of

his em ploy ee. ¶43. Here, Collins’s reliance on Foss v. W illiam s , 9 93 So. 2d 378 (Miss 2008), to excuse the conduct of his legal assistant is m isplaced f or two reasons. F irst, Foss does not stand f or the pr o p o s i t i o n that t aking speedy action at the c l ose of the 120-day window conclusively establishes g ood cause. I nstead, the Foss Court m erely af f irm ed that a trial c ourt’s decision “that it w ould not d ism iss W illiam s’ com plaint with respect to Dr. F oss based on [ the trial court’s] f i nding that good cause e xisted f or W illiam s’ f

ailure to s erve process tim ely ” was

n o t a n a b u s e o f d iscretion. Foss , 993 So. 2d a t 380 (¶ 9). Second, Foss dealt with a

m iscom m unication between plaintif f ’s counsel and associated counsel as to who would be responsible f

or ef f e cting service. Id. at 379 ( ¶5). I n the i nstant case, t h e t r u s t e d l egal assistant w a s d irectly em

ploy ed by Collins’ counsel, and she sim p ly f a i led to carry out the duty as s i g n e d t o h er by her em ploy er. For 118 day s, counsel f ailed to f ollow up with his

em ploy e e to ensure that service had b een com m e n c e d against o pposing parties. Such an oversight cannot b e said to be diligent such that a plaintif f m ay c laim “good cause why such service was not m ade” within the 120 day s provided by Rule 4(h). ¶44. I n t o d a y ’ s h o l d i n g that the plaintif f dem o nstrates good cause f or f ailure to serve
process because the em

ploy ee o f plaintif

f ’s counsel “ f

a iled to com

plete the assignm ent” of serving process, ( M aj. Op. at ¶ 22), the m ajority i ssues a holding c ontrary to our standard of review and contrary to all of the abo ve-described cases that hold that sim ilar f ailures by

2 7process servers and a ttorney s’ em ploy ees do not e s tablish g o o d c a use f or f a ilure to serve process. W hat we heretof ore have deem ed s i m

ple inadvertence and m i stake of counsel not

r i s ing to the level of good cause has now becom e good cause. Attorney s w h o f a i l t o p a y “ordinary attention” t o their caseloads m ay not lay claim to good cause and be f reed f rom the

conse q uences of not pay ing attention. Def endants i n aging cases, with the m em ories of witnesses f

ading and evidence aging, will be subject t o service of process f or a longer period of tim e, even though the cause f or the delay b ef

ore today did not am ount to good cause. ¶45. T h e ma

j o r i t y in large part bases i ts position that good cause f o r f ailure to serve th e
correct Dr. W estbrook rests in the conduct of Dr. Jesse W estbrook when the process server spoke with h im in an attem pt to locate Dr. T o ikus W e stbrook. The process server testif ied that Dr. Jesse W estbrook identif ied him self as Dr. Toikus W estbrook. The trial judge heard the sam e testim ony and observed the process server as he t estif ied. In his f

inal judgm ent, the trial judge wrote as f

ollows concerning whether Dr. Jesse W estbrook m isrepr e s e n t e d his identity : This Court f

i nds that once p rocess server, Davy Keith, had located an address f or Dr. T oi kus W estbrook in Germ a ntown, Tennessee, he c ontacted Gary Murphree, a p rocess server in Germ antown, Tenne ssee, to serve process on Dr. Toikus W estbrook. Mr. Keith called D r. J esse W estbrook and lef t a m essage. Thereaf ter, D r. Jesse W estbrook returned Mr. Keith’s call and told Mr. Keith that Dr. Toikus W estbrook was “not available.” Mr. Keith explained that he had a delivery f

or D r. Toikus W estbrook f rom Dr. Toikus W es t brook’s em ploy er, Maxim P hy sicians. Although the dialogue between Mr. Murphree and Dr. Jesse W estbrook at the piz z a p a r l o r where they m et i s disputed, Plaintif f s a ssert that D r. Jesse W estbrook told him he was D r . T o i kus W e stbro o k

. However, on cross-exam ination, Mr. Murphree acknowledged that their strategy was a subterf uge designed to deceive Dr. Jesse W estbrook to induce him to appear at the pizza parlor to re c e i v e the sum m ons. In

2 8addition, Dr. Jesse W estbrook testif ied by af f idavit that Mr. Murphree asked him if he was “Dr. W estbrook,” who, of course, he is. The trial judge as f

inder of f act on the issue m a de credibility det e rm inations and did not credit the testim o ny that Dr. Jesse W estbrook had m isidentif ied him self a s D r . Toikus
W e stbrook. W e leave “the f inding of f

act o n the existence of good c ause o r excusable neglect f or delay in serving process under Rule 4(h).” S tutts v. M iller , 37 So. 3d 1, 3 (¶ 7) (Miss. 2010). W hat the m ajority described as a r ecord that “shows overwhelm ingly that Collins’s f

ailure t o m ake tim ely service of p r ocess on D r. T oikus W estbrook w as caused entirely by ‘the conduct of a third person” (Maj. Op. at ¶ 2 3), is rather testim ony f rom one witness t h a t the trial judge heard, observed, a n d rejected on grounds o f credibility

. W e

reverse the trial j udge as f inder of f act in the determ ination o f good cause only when the trial judge’s “discretion is abused or is not supported by substantial evidence,” and neither is the case today

. ¶46. More to the point – the m a jority is reversing the t r i a l j u d g e on an issue of witness credibility

. In order to f ind the trial j udge erred in f inding no good cause o r excusable neglect, the m ajority f

inds – as a m atter of f

a ct – that Dr. J esse W estbrook acted t o trick the
process server into thinking that he, Jesse, was Toikus. The m ajority ref ers to Dr. Jesse W e stbrook’s “subterf

uge,” and writes that h e engaged in “deliberate dec e p t ion,” and even goes s o f ar as to f ind Dr. Jesse W estbrook g uilty of “corrupt conduct” a n d “ treachery .” (Maj. Op. at 23 )

. A s s h o w n i n the above-quoted excerpt f rom the trial judge’s ruling, the trial judge c onsidered the argum ent and rejected it because he did not f ind the process servers to be credible. I can f

ind no reported case wherein the Mississippi Suprem e Cou r t h as

2 9considered the def erence owed t o a circuit c ourt judge m aking credibility determ inations in the context of the f

ailure to s erve process. Of course, as cited above , t h e g eneral standard of review f

or f i n d i ngs of f

act in the Rule 4(h) context is that of abuse o f discretion and

s u bstantial e vidence, but in every other context I c ould identif y , we consider credibility determ inations m ade by the f i nder of f a c t to b e in error only upon a showing o f m anif est
error, that the f

indings of the trial court a re clearly erroneous, or that the f indings are against the overwhelm ing weight of the evidence. I n reviewing challenges to the use of perem ptory strikes under Batson v. Kentucky , 476 U.S. 79 (1986), we have acknowledged the role of the trial judge in m aking c r e d i b i l ity determ inations and “ will n ot overrule a trial court on a Batson ruling unless the record i ndicates that the r uling was clearly erroneous o r against the overwhelm ing weight of the e vidence.” Hicks v. State , 973 So. 2d 211, 218 (¶ 2 3 ) ( M i ss. 2007) (quoting Thorson v. State , 721 So. 2d 590, 593 (¶ 4) (Miss. 1998)). Chancellors of ten
act a s the f

act-f inders in litigation pending b ef o re them , and we have clearly established that when reviewing a chancellor’s credibility determ inations, “Our standard of review is indeed def erential, as w e recognize that a chancellor, being the only o n e t o hear the testim ony of witnesses and observe their dem eanor, is in the best position to judge their credibility .” Owen v. O wen , 9 2 8 So. 2d 156, 1 68 (¶ 35) (Miss. 2 006) (quoting In re Estate of Carter , 912 So. 2d 1 3 8, 143 (¶ 1 8) (Miss. 2005)). W e af f ord great def

erence to adm i nistrative agencies’ determ inations of witness credibility

. See McFadden v. M iss. State Bd. of

Med. Licensure , 735 So. 2d 145, 1 57 (¶ 46) ( M i ss. 1999). Circuit court judges sitting without juries are

3 0af

f orded the sam e def

erence as chancellors. City of Jackson v. Perry , 746 So. 2 d 373, 376 (¶ 9) (Miss. 2000). ¶47. To be clear, I do not think the trial judge in the case sub judice abused his discretion

– if indeed a

buse of d iscretion i s the correct s tandard – in n oting t h e duplicitous m ethods

em ploy e d by the process server a nd ther e f o r e f i n d i ng the testim ony of the process server incredible. Under any standard of review higher than de n ovo , I c a n n o t

– not having observed the witness or been present f or his testim ony

– agree that the trial j u d g e e rred in f inding a gainst the plaintif f o n the f actual q uestion of whether Dr. J esse W estbrook m isled the process server. I certainly cannot s o e a s i l y as does the m ajority m ake that credibility determ ination f

r om the ty ped record. (The m ajority does n ot explicitly f ind the testim ony in question to be credible or incredible, but the m ajority cannot ascribe the above-quoted term s
to Dr. Jesse W estbrook’s alleged a ctions and hold, a s it d oes, that the trial judge erred on the issue without f

inding it credible and, correspondin g l y , t h a t the trial judge e r red in ruling otherwise.) However, I would also clarif y that, in the context of reviewing whether the trial
court properly f

ound good cause or the l ack thereof f or the t im ely service of p rocess, the trial court’s determ inations of witness credibility w ill b e reversed only upon a showing that they are clearly

erroneous. ¶48. For the f

oregoing reasons, I dissent. LAMAR, J., JOINS THIS OPINION.

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