author: CARLTON, J.,

text:
    Rebecca ANDERSON, Appellant v. PASCAGOULA SCHOOL DISTRICT, Appellee
    NO. 2015-CA-01593-COA
    Court of Appeals of Mississippi.
    03/07/2017

      KAYE J. PERSONS, ATTORNEY FOR APPELLANT
    STEPHEN A. ANDERSON, ATTORNEY FOR APPELLEE
   CARLTON, J.,

FOR THE COURT:

¶ 1. Rebecca Anderson appeals the Jackson County Circuit Court’s judgment dismissing without prejudice her complaint against the Pascagoula School District (PSD) for insufficient service of process. Finding no error, we affirm the circuit court’s dismissal of Rebecca’s complaint.

FACTS

¶2. On April 24, 2014, Rebecca filed a complaint against PSD for wrongful termination in violation of public policy, defamation, and intentional and/or negligent infliction of emotional distress. Pursuant to Rule 4(h) of the Mississippi Rules of Civil Procedure, Rebecca possessed 120 days from the date she filed her complaint to serve PSD with process. On August 18, 2014, four days before the expiration of the 120-day deadline, Rebecca attempted to serve PSD. - . ■, ,

¶ 3. According to the affidavit of Kendra Anderson, a receptionist at PSD’s central office, an unidentified woman walked into the central office on August 18, 2014, and handed Kendra a brown envelope. Kendra stated the woman told her that the envelope was intended for'''Superintendent Wayne Rodolfich. However, Kendra testified that the woman never identified herself as a process server and never explained that she was attempting to serve process on PSD. Kendra further testified that the woman never asked to speak to Superintendent Rodolfich or. someone else with authority to accept service of process. In addition, Kendra stated in her 'affidavit that she-was not authorized to accept legal documents or . service of process on PSD’s behalf and that she had never before done so.

¶4. On September 11, 2014, PSD filed its answer to . Rebecca’s complaint. In its answer, PSD specifically asserted the affirmative defenses of insufficiency of process and insufficiency of service of process. (See M.R.C.P. 12(b)(4)-(5). On November 3, 2014, PSD filed a motion to dismiss Rebecca’s complaint for insufficient process and for insufficient service of process. See id. To support its motion, PSD attached the affidavits of Kendra and Superintendent Rodolfich. Superintendent Rodolfich stated in his affidavit that he was familiar with those designated and authorized to accept service of process on PSD’s behalf. In addition to himself,' Superintendent Rbdol-fich provided that his secretary, Debbie Ruemenapp, and PSD’s chief operating of-fleer, Kathy Chenoweth, were the only individuals authorized to accept service of process for PSD. Based on these facts, PSD asserted that Rebecca’s attempt to serve process on PSD through Kendra was insufficient and justified the dismissal of her complaint.

¶ 5. Four days after PSD filed its motion to dismiss, Rebecca effected personal service of process on Superintendent Rodol-fich on November 7, 2014. On November 14, 2014, Rebecca filed her response to PSD’s motion to dismiss. She also filed cross-motions asking the circuit court to grant her additional time to effect service of process and to strike certain statements contained in Kendra’s and Superintendent Rodolfich’s affidavits.

¶ 6. In an order entered on September 23, 2015, the circuit court ruled on PSD’s motion to dismiss. The circuit court found no evidence in the record to show that Rebecca ever filed with the clerk’s office a return of service for the attempt made on August 18, 2014. However, the circuit court did find that Rebecca attached a copy of the return of service to her response to PSD’s dismissal motion. The attached copy of the return of service identified the process server and showed that Rebecca’s attorney had notarized the document on August 18, 2014. In addition, the circuit court found that the copy of the return specifically provided that the process server had personally delivered copies of the summons on August 18, 2014, to PSD’s headquarters through Kendra, the receptionist.

¶ 7. The circuit court found that Kendra lacked any real or apparent authority to accept process on PSD’s behalf. The circuit court further determined that Rebecca failed to effect proper service of process until she personally served Superintendent Rodolfich on November 7, 2014, which was 166 days after she filed her complaint. As a result, the circuit court concluded that Rebecca’s complaint was subject to dismissal unless she could show good cause for the delay. See M.R.C.P. 4(h).

¶ 8. In determining whether good cause existed, the circuit court concluded that Rebecca could not “rely on the conduct of her process server or other third person, nor [could] she claim diligence in regard to the August 18, 2014” attempt to serve process. The circuit court found that the copy of the return of service, which was notarized by Rebecca’s attorney, indicated that the process server delivered the summons to PSD’s receptionist, Kendra, rather than to Superintendent Rodolfich. The circuit court concluded that this fact alone indicated some form of substituted service of process and should have led to further inquiry about the precise manner of service. In addition, the circuit court found that the copy of the return of service was technically deficient because the document provided that the process server delivered a copy of only the summons rather than a copy of both the summons and the complaint. See M.R.C.P. 4(d)(8).

¶ 9. The circuit court also found no merit to Rebecca’s arguments that PSD misled her as to the proper agents for service of process or that the circuit court should have granted an additional 120 days for service of process pursuant to Rule 6(b) of the Mississippi Rules of Civil Procedure. The circuit court found that Rebecca failed to show either that PSD provided misleading information or that she detrimentally relied on any such information. Furthermore, the circuit court determined (1) that Rebecca failed to request a Rule 6(b) extension before the expiration of her initial 120-day deadline, and (2) that she failed to show excusable neglect for her failure to timely effect service of process. Based on its findings, the circuit court granted PSD’s motion and dismissed Rebecca’s complaint without prejudice. Aggrieved by the circuit court’s judgment, Rebecca appeals to this Court.

STANDARD OF REVIEW

¶ 10. We “review! ] de novo a trial court’s grant or denial of a motion to dismiss.” Johnson v. Rao, 952 So.2d 151, 154 (¶ 9) (Miss. 2007) (citation omitted). However, we review the trial court’s fact-based findings for abuse of discretion, and we will not reverse the trial court’s factual findings when supported by substantial evidence. Id.

¶ 11. In Lewis Entertainment Inc. v. Brady, 142 So.3d 396, 398 (¶ 6) (Miss. 2014), the Mississippi Supreme Court stated:

Determining whether there is good cause for failure to serve process is a discretionary ruling on the part of the trial court and is entitled to deferential review of whether the trial court abused its discretion and whether there was substantial evidence supporting the determination. On the other hand, determining whether there should have been an extension of time is a question of law[,] which [the appellate] [c]ourt reviews de novo.

(Internal citations and quotation marks omitted).

DISCUSSION

I. Insufficient Service of Process

¶ 12. Rebecca asserts on appeal that the circuit court erroneously dismissed her complaint against PSD for insufficient service of process. Rebecca argues that her initial service of process on PSD was timely. However, she claims that PSD’s failure to publicly identify the three individuals it had privately designated as agents for service of process misled her process server. Rebecca further alleges that Kendra was seated just outside Superintendent Rodol-fich’s office and accepted the lawsuit papers from the process server without question or objection. In addition, Rebecca contends that Kendra’s acceptance of the lawsuit papers was no different than when Superintendent Rodolfich’s secretary, Ruemenapp, received notice on PSD’s behalf of Rebecca’s tort claim.

¶ 13. This Court has previously recognized that “the burden is on the plaintiff to determine the proper entity to be served and to ensure that the entity is served correctly.” Hudson v. Lowe’s Home Ctrs. Inc., 170 So.3d 602, 606 (¶ 14) (Miss. Ct. App. 2014) (citing Lewis Entm’t, 142 So.3d at 399-401 (¶¶ 10, 12)). As a school district, PSD constitutes a political subdivision. See Miss. Code Ann. § 37-6-5 (Rev. 2013). Rule 4(d)(8) of the Mississippi Rules of Civil Procedure establishes that service of process should be made on such a governmental entity

by delivering a copy of the summons and complaint to the person, officer, group!,] or body responsible for the administration of that entity or by serving the appropriate legal officer, if any, representing the entity. Service upon any person who is a member of the “group” or “body” responsible for the administration of the entity shall be sufficient.

¶ 14. Our caselaw also recognizes instances where, even though an individual lacks express authority to accept service of process on another’s behalf, he or she may possess apparent authority to accept service of process. Spurgeon v. Egger, 989 So.2d 901, 904 (¶ 12) (Miss. Ct. App. 2007). We have stated:

An apparent or -ostensible agent is one whom the principal has intentionally or by want qf ordinary care induced third parties to believe is his agent, although no. authority has been conferred on him either expressly or by implication. One may also, be an apparent agent if he reasonably .appears by third parties to be the authorized agent of the principal. ... ,We are mindful that questions of whether a person has apparent authority to accept service of process for another [are] factual issue[s] to be decided by the chancellor, and where a circuit court judge sits without a jury, the circuit .court is entitled to the same, deference .as a chancellor, and the circuit court’s findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence.

Id. at .905 . (¶ 13) (internal citations and quotation- marks omitted). See also Nelson v. Baptist Mem’l Hosp.-N. Miss. Inc., 70 So.3d 190, 195 (¶ 17) (Miss. 2011) (recognizing that we must “appl[y] 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”).

¶ 15. In Williams v. Kilgore, 618 So.2d 51, 56 (Miss. 1992), a deputy sheriff gave a summons and complaint to a doctor’s office ihanager. Although both the doctor and the office manager stated in their affidavits that the office manager lacked express authority to accept service of process on the doctor’s, behalf, the deputy “testified .that on many occasions [the office manager] had accepted service on behalf of [the doctors in the], office and that he [ (the deputy) ] had never been instructed to the contrary on this or any other occasion.” Id. In. holding that the deputy properly served process, the supreme court found nothing in Mississippi caselaw that “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.” Id,

1116. By contrast, in Johnson, the supreme court affirmed the circuit court’s dismissal of the complaint due to insufficient service of process. Johnson, 952 So.2d at 158 (¶ 20). The deputy sheriff in Johnson served process on a doctor’s receptionist. Id. at 153 (¶ 2), Although the parties disputed the events surrounding service, the receptionist provided the following testimony at the hearing on the motion to dismiss:

[The receptionist] testified that she was not authorized by [the doctor] to accept service of process; that she was not aware that the papers were regarding a lawsuit against [the doctor]; that she had never accepted service of process on behalf of [the doctor] or anyone else[ ] in the past; that the deputy did not- ask to see [the doctor] and did not inform her that he was there to serve process on [the doctor].

Id. at 158 (¶ 18).

¶ 17. The Johnson court also found no record evidence to show that the doctor authorized the receptionist to accept process or that she had ever previously accepted process on the doctor’s behalf. Id. Moreover, the Johnson court concluded that nothing in the record contradicted the assertion that the receptionist lacked authority to accept service of process on the doctor’s behalf. Id. See also Spurgeon, 989 So.2d at 905-06 (¶¶ 15-17) (finding that a doctor’s office assistant lacked express or apparent authority to accept service of process on the doctor’s behalf).

¶ 18. In the present case, the record reflects that, four days before the expiration of her Rule 4(h) 120-day deadline, Rebecca attempted to serve process on PSD. The record reflects that Rebecca’s process server handed a brown envelope to Kendra, who worked as a receptionist at PSD’s central office. Kendra stated in her affidavit that the process server never identified herself as a process server and never disclosed the contents of the envelope. Instead, Kendra testified that the woman simply stated that the envelope was meant for Superintendent Rodolfich.

¶ 19. Like the receptionist in Johnson, Kendra testified that PSD had not authorized her to accept service of process on its behalf; that she had never before accepted service of process on PSD’s behalf; that the process server never asked to speak to someone with the authority to accept service of process; and that the process server never stated her intention to serve process on PSD. In addition to Kendra’s affidavit, PSD submitted an affidavit from Superintendent Rodolfich, which supported Kendra’s testimony that she was not authorized to accept service of process on PSD’s behalf.

¶ 20. Upon review, we find no abuse of discretion in the circuit court’s determination that Kendra failed to constitute one of PSD’s agents for service of process. The evidence in the record reflects that Kendra lacked any real or apparent authority to accept service of process on PSD’s behalf. The record further reflects that Rebecca failed to properly serve process on PSD until 166 days after filing her complaint, at which time she effected personal service on Superintendent Rodolfich. Based on these facts, we find no abuse of discretion in the circuit court’s determination that Rebecca failed to properly effect service of process within Rule 4(h)’s 120-day deadline. As a result, we now turn our focus to whether Rebecca showed good cause for her failure to timely effect service of process.

II. Extension for Good Cause

¶21. Rebecca asserts that she showed good cause for any failure to timely serve PSD.' As discussed, Rebecca first argues that PSD failed to publicly provide the identity of the three individuals authorized to receive service of process on PSD’s behalf. Rebecca further states that she only learned upon receipt of PSD’s motion to dismiss that (1) PSD had only designated and authorized three individuals to accept service of process; (2) Kendra was not one of those designated individuals; and (3) PSD considered Rebecca’s service of process insufficient. Rebecca further contends that, upon learning of the alleged defect in service of process, she immediately hired a second process server to personally serve Superintendent Rodolfich, and she then filed a motion requesting an extension of time. Based on these facts allegedly showing good cause, Rebecca asserts that the circuit court erred by not granting her an extension of the service-of-process deadline.

¶ 22. As already acknowledged:
We review a trial court’s finding of fact on the existence of good cause for delay in service of process pursuant to our familiar abuse[-]of[-]discretion standard. As such, the circuit court’s determination of fact as to whether there was good cause for delay in service of process is a discretionary ruling entitled to deferential review on appeal.

Spurgeon, 989 So.2d at 906 (¶ 19) (internal citation omitted).

¶ 23. This Court has previously stated: Rule 4(h) requires a plaintiff to serve the summons and complaint on a defendant within 120 days of filing a complaint; otherwise, the judge must dismiss the action without prejudice. Under ... Rule 6(b), a court may extend the time a party has to act (1) for cause shown, if within the initial time period, or (2) upon a finding of excusable neglect after the expiration of the time period. A court may grant an extension of time under Rule 6(b), if within the initial 120[-]day time period, without motion and without notice. Accordingly, a judge may grant an extension of time to serve process under Rule 4(h) prior to the expiration of the original 120 days for service without a showing of good cause. Only after the expiration of the original 120 days must the plaintiff show good cause to receive an extension of time to serve process. An application under Rule 6(b)(1) normally will be granted in the absence of bad faith or prejudice to the adverse party.

Nelson v. Baptist Mem’l Hosp.-N. Miss. Inc., 972 So.2d 667, 670-71 (¶ 8) (Miss. Ct. App. 2007) (internal citations and quotation marks omitted).

¶24. Because Rebecca requested an extension of the service-of-process deadline after the expiration of the 120-day period, Mississippi caselaw requires her to meet the heightened showing of good cause for her failure to timely serve process. See id. Furthermore, as the plaintiff, Rebecca “bears the burden of establishing good cause.” Holmes v. Coast Transit Auth., 815 So.2d 1183, 1185 (¶ 7) (Miss. 2002) (citing M.R.C.P. 4(h)).

¶ 25. The supreme court has recognized: To establish good cause, the plaintiff has the burden to 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 does not suffice. When making a good-cause determination, the following factors should be considered:
a. the conduct of a third person, typically the process server,
b. the defendant has evaded service of the process or engaged in misleading conduct,
c. the plaintiff acted diligently in trying to effect service or there are understandable mitigating circumstances, or
d. the plaintiff is proceeding pro se or in forma pauperis.

Lewis Entm’t, 142 So.3d at 399 (¶ 9) (internal citations omitted).

¶26. As the record reflects, Rebecca attempted to serve process on PSD on August 18, 2014, four days prior to the expiration of the 120-day period. PSD then filed its motion to dismiss on November 3, 2014, and Rebecca effected personal service on Superintendent Rodolfieh on November 7, 2014—166 days after she filed her complaint. On November 14, 2014, Rebecca filed her response to the motion to dismiss, and she filed a cross-motion asking the circuit court to grant her an extension of the service-of-process deadline.

¶27. In addressing Rebecca’s request for an extension of time to effect service of process, the circuit court concluded that Rebecca failed to show good cause or excusable neglect. Despite Rebecca’s claims of confusion as to PSD’s proper agents for service of process, the circuit court found that Rebecca specifically chose Superintendent Rodolfieh as the individual upon whom to serve process. Furthermore, the circuit court stated that there could be no doubt that Superintendent Rodolfieh, as the superintendent of PSD, was the person responsible for the administration of PSD. As a result, the circuit court concluded that Rebecca failed to show that PSD provided, or that she detrimentally relied on, misleading information about the proper agents for service of process.

¶ 28. In addition, the circuit court determined that Rebecca was not proceeding pro se or in forma pauperis, could not “rely on the conduct of her process server or other third person, [and could not] claim diligence in regard to the August 18, 2014” attempt to serve process. The circuit court noted that Rebecca’s attorney had notarized the copy of the return of service, which indicated: (1) the process server delivered only a copy of the summons rather than a copy of both the summons and the complaint; and (2) the document was given to Kendra rather than to Superintendent Rodolfich. Based on these facts, the circuit court concluded that Rebecca should have been alerted to possible defects in service of process and should have made further inquiries to determine whether PSD was properly served.

¶ 29. We also note that, on appeal, Rebecca argues that PSD cannot claim, and has not claimed, any bad faith or prejudice related to the delay in service of process. Rebecca instead asserts that PSD “has been intimately involved” in her case since the very first day. However, our caselaw fails to recognize this argument as a basis for improper service of process. Instead, Mississippi precedent establishes that “actual knowledge of a suit does not excuse proper service of process.” Spurgeon, 989 So.2d at 907 (¶ 22) (citation omitted).

¶30. Upon review, we find the record contains substantial evidence to support the circuit court’s finding that Rebecca failed to show good cause for the delay in service of process. We therefore find no abuse of discretion in the circuit court’s dismissal of Rebecca’s complaint for insufficient service of process.

¶ 31. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      . Because this case involves multiple individuals with the last name of "Anderson,” we refer to each of those individuals by their first names.

      . In his affidavit, Superintendent Rodolfich identified Ruemenapp as one of the three individuals authorized to accept service of process on PSD's behalf.


source: Caselaw Access Project

author:
CARLTON, J.,
      GRIFFIS, P.J.,

license: Public Domain

text:
    Anthony MURRY a/k/a Anthony James Murray, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01811-COA
    Court of Appeals of Mississippi.
    04/18/2017

      ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD
   CARLTON, J.,

FOR THE COURT:

¶ 1. A jury in the Hinds County Circuit Court, First Judicial District, found Anthony Murry guilty of aggravated assault. See Miss.' Code Ann. § 97-3-7(2)(b) (Rev. 2006). On appeal from his conviction and sentence, Murry raises the following issues: (1) whether the circuit court erred by refusing to grant him a new trial due to juror misconduct; (2) whether the circuit court erred by denying his motions to compel evidence and to grant a continuance; (3) whether the circuit court failed to adequately instruct the jury; and (4) whether the verdict was against the overwhelming weight of the evidence.

¶2. Upon review, we find dispositive Murry’s first assignment of error regarding the circuit court’s failure to grant him a new trial due to juror misconduct. During Murry’s trial, improper contact occurred between a juror and Murry’s fian-cée. In denying Murry’s new-trial motion, the circuit court misapplied the relevant standard to determine “whether it was reasonably possible that the communication altered the verdict.” Roach v. State, 116 So.3d 126, 132 (¶ 17) (Miss. 2013) (citing Gladney v. Clarksdale Beverage Co., 625 So.2d 407, 419 (Miss. 1993)). As a result, we reverse Murry’s conviction and sentence and remand this case for a new trial.

FACTS

¶ 3. On June 7, 2014, Murry shot Mar-quavious Brent in the ankle during an altercation. A grand jury indicted Murry for aggravated assault. At Murry’s trial, the jury considered all the evidence and testimony presented and then found Mur-ry guilty of aggravated assault. The circuit court sentenced Murry to fifteen years in the custody of the Mississippi Department of Corrections, with ten years to serve, five years suspended, and five years of supervised probation.

¶ 4. Murry subsequently filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. In addition to his other assignments of error, Murry claimed in his motion that juror misconduct denied him the right to a fair trial. Murry alleged that, during the course of the trial, Dennis Harris, one of the jurors, initiated improper contact with Murry’s fiancee, Laronda Brooks, and tried to begin a relationship with Brooks. As a result of this alleged misconduct, Murry argued that Harris lost his ability to remain fair and impartial and tainted the jury. To support his claims, Murry attached to his motion Brooks’s affidavit, copies of pictures that Harris sent .Brooks, and copies of text messages between Harris and Brooks.

¶ 5. - The circuit court. held a hearing solely on Murry’s allegation of juror misconduct. Brooks testified that She first encountered Harris on Tuesday, October 13, 2015, on the second day of'Murry’s trial. According to Brooks, Harris initiated contact with her in the hallway during a trial recess. Brooks.’ stated that Harris asked her whether he was too late. Brooks testified that she thought Harris was asking whether he was late returning to1 the courtroom after the recess. As; a result, Brooks said she responded, “No, you’re not too late.” Brooks stated that Harris then told her he was- not talking'about returning to the courtroom on time, and he asked for her phone number. Brooks testified that she gave Harris her phone number and told .him that she was “with the [Defendant.” Brooks further testified .that she was unaware at the time of their initial conversation that Harris was a juror in Murry’s case.

¶ 6. Brooks stated that Harris called her Tuesday night after their initial contact and that the two spoke for about fifteen minutes. She said' that, during their conversation, Harris disclosed to her that he was a juror in Murry’s trial. In addition, Brooks stated that Harris told her that- he felt Murry was innocent. Brooks also testified that Harris called her again the following night, on Wednesday, after the jury reached a verdict in Murry’s case. According to Brooks, Harris sent her text messages saying she did not have to worry and that, if she treated him right, he would take care of her. She further stated that Harris sent almost nude pictures of himself and asked her to send a picture of herself to him. ■

¶ 7. Brooks testified that she first tried to contact the public defender’s office on the day of Harris’s initial contact. However, Brooks testified that the defense attorney, Dennis Martin, was out of the office. Brooks then stated that she told another of Murry’s attorneys, Candace Gregory-May-berry, about the contact the following day as they left the courtroom after the jury’s verdict. Brooks said she told Gregory-Mayberry that she (Brooks) felt the verdict was not right since Harris had said he felt that Murry was innocent. Brooks stated that, after her disclosure, the defense attorneys instructed her to come to their office and sign an affidavit about her contact with Harris.

¶8. Despite Brooks’s testimony about when she told the defense of her contact with Harris, Gregory-Mayberry testified differently. Under oath, Gregory-Mayber-ry denied that Brooks told her about Harris’s alleged misconduct as they left the courtroom the day of the jury verdict. Instead, Gregory-Mayberry testified that she first learned of the contact the next day on Thursday, October 14, 2015, and that Brooks must have been confused as to the timing of the disclosure.

¶ 9. As the record reflects, Brooks and Harris continued their communication with one another until October 18, 2015, which was four days after the jury reached its verdict. Brooks signed her affidavit on October 19, 2015. Although she was present in the courtroom after the communication with Harris began, Brooks stated that she failed to notify the defense or the court earlier because she was unsure of what to do.

¶ 10. Harris also testified about the allegation of juror misconduct and never denied his communication with Brooks during the trial. However, Harris stated that Brooks initiated the contact with him. Harris testified that he was standing in the hallway during a recess on the second day of trial when an unfamiliar young woman approached him and asked for his phone number. Harris said he gave the woman his phone number and that she called him later that evening. According to Harris, Brooks told him during them conversation that she was Murry’s sister. Harris said that he then cut off contact with Brooks until the jury had reached its verdict the following day. Despite Brooks’s testimony to the contrary, Harris stated that he never told Brooks he thought Murry was innocent.

¶ 11. Harris testified that Brooks also called him Wednesday night after the jury reached its verdict. Harris said that he missed Brooks’s call and that, when he tried to call her back, she did not answer. However, Harris testified that Brooks then returned his missed call. Harris claimed that he only sent pictures of himself to Brooks because she asked him to do so after they discussed working out and his job as a personal trainer. Harris testified that his last communication with Brooks was around October 18, 2015, which was four days after the trial ended. Despite the circuit court’s instruction to report any improper contact, Harris stated he did not report the contact with Brooks because he never discussed the jury’s deliberations with her and because he felt an obligation to finish his jury service.

¶ 12. After considering the testimony presented at the evidentiary hearing, the circuit court entered its order on Murry’s motion for a JNOV or a new trial. While acknowledging its concern over the improper communications between Brooks and Harris, the circuit court questioned the credibility and veracity of Brooks’s testimony, the timing of her disclosure about the contact, and whether she purposefully initiated the contact. The circuit court found that Brooks “had more than ample opportunity to inform [Murry’s] counsel and/or this [c]ourt” about the contact prior to the jury’s verdict. Although Brooks claimed she told the defense about the contact while exiting the courtroom after the jury verdict, the circuit court dismissed her statement as false since Gregory-Mayberry, as an officer of the court, denied learning of the improper contact “prior to the verdict being returned or while in the courthouse.”

¶ 13. In addition to questioning Brooks’s credibility, the circuit court concluded that her contact with Harris failed to alter the jury’s verdict. The circuit court found that the eleven other jurors had not been exposed to the improper contact and that they all found Murry guilty. The circuit court also determined that both Harris and Brooks “generally contended] the trial was not discussed” and that Harris had denied telling Brooks he thought Murry was innocent.

¶ 14. Based on its findings, the circuit court denied Murry’s motion for a JNOV or a new trial. Aggrieved, Murry timely appeals his conviction and sentence.

DISCUSSION

¶ 15. In addition to his other claims raised on appeal, Murry argues that the circuit court misapplied caselaw in denying his motion for a new trial based on juror misconduct. We review the circuit court’s denial of Murry’s new-trial motion for an abuse of discretion. See Dependable Abrasives Inc. v. Pierce, 156 So.3d 891, 895 (¶ 12) (Miss. 2015). Because we find Mur-ry’s argument on this issue dispositive, we decline to address the merits of his remaining assignments of error.

¶ 16. When inquiring into the validity of a jury’s verdict, Rule 606(b)(1) of the Mississippi Rules of Evidence provides:

[A] juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.

However, Rule 606(b)(2) states that a juror may testify about the following: (1) whether “extraneous prejudicial information was improperly brought to the jury’s attention” or (2) whether “an outside influence was improperly brought to bear on any juror.”

¶ 17. The Mississippi Supreme Court has previously explained the procedure a trial court should follow when claims of juror misconduct or extraneous information arise. Roach, 116 So.3d at 132 (¶ 17). The trial court first determines whether an investigation is warranted. Id. “An investigation is warranted if the trial judge finds that ‘good cause exists to believe that there was in fact an improper outside influence or extraneous prejudicial information.’” Id. (quoting Gladney, 625 So.2d at 419). The trial court’s inquiry stops if it finds “no threshold showing of external influences[.]” Id. However, where the trial court possesses “good cause to believe there was improper influence on the jury, the court should conduct a post-trial hearing” and “determine whether the communication was made and the nature of the communication.” Id. if the court’s “investigation reveals that the communication was made, the court must determine whether it was reasonably possible that the communication altered the verdict.” Id. We review the “[t]he trial court’s decision as to whether it is reasonably possible the communication influenced the juror” for an abuse of discretion. Wallace v. State, 166 So.3d 520, 527 (¶ 31) (Miss. Ct. App. 2014).

¶ 18. In the present case, the circuit court found good cause existed to conduct a posttrial evidentiary hearing on Murry’s claim of juror misconduct. The circuit court served subpoenas on both Brooks and Harris. Although Brooks and Harris both testified that they communicated with one another , during Murry’s trial, their accounts differed as to who initiated the contact during the trial recess on Tuesday and who called the other later that same evening.

¶ 19. The record is unclear as to whether Harris and Brooks initially knew each other’s relationship to Murry when they exchanged phone numbers. However, the circuit court found that they discovered the connection to Murry during their fifteen-minute phone conversation Tuesday evening. Brooks stated that Harris told her Tuesday night he was a" juror in Murry’s 'case. Although Harris testified that Brooks claimed to be Murry’s sister rather than his fiancée, Harris nevertheless admitted that he learned during the conversation that Brooks had a close relationship with Murry. The record also clearly establishes that, regardless of whether Harris thought Brooks was Murry’s fiancée or sister, he engaged in romantic overtures and communications with Brooks during the course 'of the trial;

¶ 20. Based on their testimony, the circuit court found that both. Brooks and Harris generally contended that they nev-¿r discussed the trial. Even so, the circuit court acknowledged Brooks’s claim that Harris told her during their Tuesday-night conversation he believed Murry was innocent. For his part, however, Harris denied making ány such statement to Brooks or anyone else. Harris did admit, however, that he sent Brooks text messages after the jury’s 'verdict stating that Brooks did not need to worry and that, if she treated him right, he would take care of her. In addition, Harris sent Brooks several nearly nude pictures of himself and asked her to send him a picture of her. According to Harris; his statements were merely an attempt to be nice to Brooks and to reassure her following the verdict. He also testified that he only sent the pictures of himself, and the request for her picture, because the two had discussed his work as a personal trainer.

¶21. At "the hearing, Brooks testified that she first tried to inform the public defender’s office about the improper contact on Tuesday, the same day that the contact initially occurred. However, Brooks stated the attempt was unsuccessful because Murry’s attorney was' out of the office. Brooks further testified that she then informed the defense attorneys about the improper contact as they exited the courtroom following the jury’s verdict. One of Murry’s attorneys, though, testified that Brooks "actually informed the defense of the improper contact the day after the jury’s verdict and that Brooks must have been confused about the timing of her disclosure.

¶ 22. Despite conflicting testimony as to when she actually informed the defense about the improper contact with Harris, the record reflects that Brooks did, in fact, inform Murry5s attorneys. By contrast, Harris, in direct violation of the court’s instructions to the jury, never revealed his contact with Brooks until questioned about it during the evidentiary hearing. Even so, the circuit court faulted only Brooks for the failure to more timely disclose the improper contact. The circuit court stated that Brooks possessed “more than ample opportunity to inform [Murry’s] counsel and/or this [c]ourt” but that she failed to do so. As a result, the circuit court questioned whether Brooks purposefully initiated the improper contact and waited until after the jury’s verdict to report the communication, In addition, the circuit court found that Harris was the only juror exposed to the improper contact. The circuit court therefore, concluded that, because the eleven other jurors were not exposed to the contact and still found Murry guilty, “it [was] not reasonably possible [the] communication altered the verdict.” As required by precedent, after determining that the improper contact, occurred between Harris and Brooks, the circuit court should have further determined whether it was reasonably possible that the contact and communication altered the verdict. See Roach, 116 So.3d at 132 (¶ 17).

¶ 23. Upon review, we find the circuit court abused its discretion by misapplying relevant caselaw to its determination of whether juror misconduct justified granting Murry a new trial. See Dependable Abrasives, 156 So.3d at 895 (¶ 12). The undisputed testimony reflects that an improper romantic communication occurred between Harris and Brooks that displayed a motive for Harris to alter the verdict in this case. As the record demonstrates, Harris made romantic overtures to Brooks and sent her almost nude pictures of himself. Thus, all that remained was for the circuit court to “determine whether it was reasonably possible that the communication altered the verdict.” Roach, 116 So.3d at 132 (¶ 17) (citing Gladney, 625 So.2d at 419). Although the circuit court acknowledged the proper standard in its judgment, the record nevertheless reflects that the court misapplied Mississippi caselaw and focused on improper bases to reach its decision. Instead of determining whether it was reasonably possible that the communication between Brooks and Harris altered the verdict, the circuit court emphasized the timing of Brooks’s disclosure and whether she had purposefully initiated the contact.

¶24. Regardless of who first initiated the contact and when the contact was disclosed, the record is clear that inappropriate contact and communication repeatedly occurred between Harris and Brooks during and after Murry’s trial and that this improper contact resulted in juror misconduct. The established contact between Harris and Brooks evidences a motive on Harris’s behalf to alter or impact the verdict to pursue his interest in Brooks. As stated, following the jury’s verdict, Harris sent Brooks almost nude pictures of himself and suggestive messages stating that he would take care of her if she treated him right.

¶ 25. The State and Federal Constitutions guarantee Murry the right to a fair trial before an impartial jury. See James v. State, 912 So.2d 940, 950 (¶ 17) (Miss. 2005). However, based upon a review of the applicable standard set forth in Mississippi caselaw, the record reflects it is reasonably possible that the communication between Brooks and Harris altered the verdict in this case. See Gladney, 625 So.2d at 419. As a result, we find the circuit court abused its discretion by denying Murry’s new-trial motion. See Dependable Abrasives, 156 So.3d at 895 (¶ 12). We therefore reverse the circuit court’s judgment and remand this case for a new trial.

¶ 26. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

IRVING, P.J., ISHEE, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR. GRIFFIS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION,. JOINED BY LEE, C.J., BARNES AND WILSON, JJ.

GRIFFIS, P.J.,

DISSENTING:

¶27. Because I am of the opinion the trial court did not abuse its discretion, I respectfully dissent from the majority’s decision to reverse and remand this case for a new trial.

¶ 28. As the majority says, we must review the “[t]he trial court’s decision as to whether it is reasonably possible the communication influenced the juror” for an abuse of discretion. Wallace v. State, 166 So.3d 520, 527 (¶ 31) (Miss. Ct. App. 2014).

¶ 29. In its order, the trial court ruled: This Court served subpoenas upon the juror and the fíancé[e] and held an evi-dentiary hearing after receiving Defendant’s motion which contained an affidavit from his fiancé[e] as well as text messages, including pictures, between her and a male juror.
The juror and fíancé[e]’s accounts as to which one of them initiated the initial contact in the hallway the Tuesday of trial conflict^] obviously each blames the other. What is not in dispute is that they did end up with each other’s cell phone numbers and did talk Tuesday night for approximately fifteen minutes, and even if they did not know who each other were when they exchanged numbers, the fíancé[e] admits the juror told her Tuesday night he was on the jury. He admits he knew that she was in some way related to the Defendant.
The fiancé[e] contends she told trial counsel of the communication Wednesday, while in the courthouse, a fact that counsel, as an officer of the court, vehemently denies. The jury of ten (10) women and two (2) men returned a guilty verdict Wednesday afternoon. The juror and fiancé[e] talked again a few days later. Both generally contend the trial was not discussed but the fiancé[e] contends the juror told her he thought the Defendant was innocent. The juror denies this.
This Court questioned the fíancé[e] extensively as to why she did not feel it proper to report the conduct prior to the jury returning the verdict. Despite all her contentions to the contrary, she had more than ample opportunity to inform her counsel and/or this Court and she failed to do so. This fact alone raises doubt in the Court’s mind as to her motives. Further, this Court knows that she has given false testimony regarding at least one fact; the Court is bound to believe an officer of this court, that practices before it, when she testified she was not informed of the improper contact prior to the verdict being returned or while in the courthouse. It has occurred to this Court that perhaps the fiancé[e] is the one who purposefully initiated contact.
The Court listened to the evidence and denied the motion for directed verdict and JNOV on evidentiary grounds. Most importantly, the fact that eleven (11) jurors (ten (10) women and one (1) man) that were not exposed to this improper contact voted guilty persuades this Court to believe that “it is [not] l-eason-ably possible this communication altered the verdict.”

¶ 30. I am of the opinion that the trial court followed the appropriate legal procedure and conducted a hearing to allow all relevant evidence to be introduced. The learned trial judge heard testimony from both Brooks and Harris. Neither Brooks nor Harris testified that Brooks ever attempted to influence Harris’s decision as a juror. Further, contrary to Brooks’s claim that Harris knew that she was with the defendant, Harris testified that Brooks told him that Murry was her brother. As a result, the trial judge found that a communication had occurred that should not have occurred. However, the trial judge concluded that a new trial was not warranted because the jury’s verdict was not a product of the improper communication. The trial judge concluded that no part of the communication had, or could have had, any impact on the verdict. The court also found that Brooks did not attempt to influence Harris’s decision and that she did not offer any extraneous prejudicial information. Thus, the trial judge concluded that it was not reasonably likely that Brooks’s conversations with Harris altered the verdict.

¶31. Because I am of the opinion that the trial court did not abuse its discretion when it declined to grant a new trial after finding that it was not reasonably possible that the communication altered the verdict, I must respectfully dissent. I would affirm the trial court’s judgment.

LEE, C.J., BARNES AND WILSON, JJ., JOIN THIS OPINION.

      . The record reflects that Harris sent Brooks several explicit text messages. One of Harris's text messages to Brooks stated, "Treat me right[,l an[d] I will take care of you.” Another of Harris’s text messages to Brooks said, "You [will not] have to worry about anything[,] an[d] I [am] not just saying something.” In addition, the record reflects thát Harris sent Brooks a nearly naked picture of himself.


author: ISHEE, J.,

text:
    Viola BOLTON, Appellant v. ILLINOIS CENTRAL RAILROAD COMPANY and Cliff Bishop, Appellees
    NO. 2015-CA-01708-COA
    Court of Appeals of Mississippi.
    05/02/2017

      ATTORNEYS FOR APPELLANT: BRUCE L. BARKER, LARRY STAMPS
    ATTORNEYS FOR APPELLEES: ROMNEY H. ENTREKIN, P. GRAYSON LACEY JR., BENJAMIN B. MORGAN
    BEFORE GRIFFIS, P.J., ISHEE AND GREENLEE, JJ.
   ISHEE, J.,

FOR THE COURT:

¶ 1. The Circuit Court of Attala County dismissed Viola Bolton’s claims against Illinois Central Railroad Company (“ICRC”) and Cliff Bishop for untimely service of process. Bolton appeals the circuit court’s dismissal. Bolton failed to timely appeal within the constraints of Mississippi Rule of Appellate Procedure 4; therefore, we find that her appeal is procedurally barred, thus divesting this Court of jurisdiction. Because our finding is dispositive, we decline to delve into the merits of the underlying dismissal. Therefore, we dismiss with prejudice.

FACTS AND PROCEDURAL HISTORY

¶ 2. On July 6, 2011, Bolton attempted to traverse a railroad crossing when she was struck by a train owned by ICRC and operated by Bishop, an employee of ICRC. Bolton waited to file her claims against ICRC and Bishop until July 3, 2014—three days before the three-year statute of limitations expired. Under Mississippi Rule of Civil Procedure 4(h), Bolton was required to serve the defendants before October 31, 2014, when her 120-day deadline under the rule would expire. It is undisputed that Bolton failed to issue summonses or serve either defendant prior to the October 31, 2014 deadline.

¶ 3. On November 3, 2014, Bolton filed a motion for additional time to complete service of process, and on November 4, 2014, the circuit court entered an order granting Bolton an additional ninety days to complete service. Under the order, Bolton’s new deadline for service of process upon the defendants was February 1, 2016. It is again undisputed that Bolton failed to have summonses issued or serve either defendant prior to February 1, 2015.

¶ 4. On February 2, 2015, Bolton filed a second motion for additional time to complete service of process, and on February 6, 2015, the circuit court entered an order granting Bolton a second ninety-day extension. Under her second extension, Bolton’s new deadline for service of process upon the defendants was May 7, 2015.

¶5. On April 24, 2015, some 295 days after she filed her lawsuit, Bolton had summonses issued for both defendants. On April 30,2015, Bolton served Bishop within her second-ninety-day-extension deadline. On May 22, 2015, Bishop filed a motion to dismiss based on ineffective service of process, and Bolton responded on June 4, 2015.

¶ 6. However, on May 30, 2015, Bolton served ICRC twenty-three days after her second-ninety-day-extension deadline. On June 11, 2015, ICRC similarly filed a motion to dismiss based on ineffective service of process, to which Bolton responded on June 24,2015.

¶ 7. The circuit court entered its order granting both defendants’ motions to dismiss on October 7, 2015. The circuit court found that Bolton failed to show good cause for the substantial delay in service of process. Under Rule 4, Bolton was required to file her notice of appeal with the Attala County Circuit Clerk by November 6, 2015. M.R.A.P. 4. However, Bolton did not file her notice of appeal until November 13, 2015—seven days after the thirty-day period allowed under the Rule.

DISCUSSION

¶ 8. Mississippi Rule of Appellate Procedure 4(a) states that the required notice of appeal “shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from.” Rule 4 “uses the word ‘filed’ rather than ‘served’ and thus means that the notice must actually be received in the office of the trial court clerk within the thirty-day time frame.” Tandy Elecs. Inc. v. Fletcher, 554 So.2d 308, 309 (Miss. 1989). “An appeal shall be dismissed if the notice of appeal was not timely filed pursuant to [Rule 4] .,..” M.R.A.P. 2(a)(1).-There are perceived “no circumstances, involving potential appellants from adverse judgments in civil actions which would cómpel . 'a unique or flexible treatment [of the -appellate rules].” Tandy, 554 So.2d at 310.

¶ 9. The only exception to Rule 4 that this Court recognizes is the “prison[-]mailbox rule.” This rule allows a pro se petitioner to effectively file his notice of appeal when he delivers the notice to the proper prison authorities for mailing. Minchelo v. State, 967 So.2d 1244, 1246-47 (¶ 4) (Miss. Ct. App. 2007). Since Bolton is not a pro se prisoner in this case, the prison-mailbox rule does not apply.

¶ 10. Bolton failed to tiipely file her appeal with the trial-court., clerk as - required by the . Rules of Appellate Procedure. However, she argues that while she agrees she mailed the notice of appeal on November 5, 2015, she disagrees that it was mailed one day before her filing deadline expired. Bolton argues that,, in accordance with Mississippi Rule of Appellate Procedure 25(c), she should have been granted three additional days to file the appeal since she filed by mail. Bolton’s reliance on Rule 25(c), however, is misplaced. Rule 25(c) does not provide for an additional three days to file an appeal when mailed. Indeed, Rule 25(c) specifically applies to the manner of service—not the filing of a notice of appeal.

¶ 11. The proposition Bolton relies on. is actually found in Mississippi Rule of Appellate Procedure 26(c). Rule 26(c) provides for additional time after service by mail. The rule states, “Whenever a party is required or permitted to do an act within a prescribed period after service of a paper upon that party and the paper is served by mail, three (3) days shall be added to that prescribed period.” M.R.A.P. 26(c). We find, however, that Rule 26(c) does not apply in this case, because it applies only to deadlines based on “service of a paper.” Hypothetically, even if we were to find that Rule 26(c) applies, and that Bolton was entitled to three extra days, her new filing deadline would be November 9, 2015. Yet the circuit clerk still did not receive Bolton’s notice of appeal until November 13, 2015—four days after the more generous, hypothetical deadline. By waiting to mail her notice of appeal until the day before her actual deadline expired, she ensured that her notice would not be filed within either deadline.

¶ 12. Because Bolton was filing a notice of appeal, she was bound by the requirements of Rule 4(a). Rule 26(c) applies to “papers” filed after the notice of appeal, or said differently, Rule 26(c) simply applies to all other papers filed. See M.R.A.P. 26(c). As addressed previously, Rule 4 does not provide any additional time for filing by mail. Thus, we make clear, a party is only allowed thirty days to file a notice of appeal—absent the application of the “prison[-]mailbox rule.” We decline to apply the extension under Rule 26(c) to notices governed by Rule 4(a).

¶ 13. Lastly, Bolton argues that this Court is not bound by a rigid interpretation of the rules requiring us to dismiss her claim as untimely. She argues that the Mississippi Supreme Court has held that “unanticipated and uncontrollable delays in the mail” could be grounds for forgiving untimeliness. In re Estate of Ware, 573 So.2d 773, 775 (Miss. 1990). While we follow the precedent of the supreme court, Bolton again has misplaced her reliance. The supreme court found this exception to apply when a party is required to show “excusable neglect” for failing to file a motion within thirty days for an extension of time to appeal. This exception does not apply to this case because Bolton never filed a motion requesting extra time to file her notice of appeal. Further, we do not agree that waiting until either the night before, or three nights before, the filing deadline is an unanticipated or uncontrollable delay in the mail. At best, it is a gamble at the expense of the client. At worst, it is a procedural bar on the client’s last claim for relief.

¶ 14. Bolton failed to file her appeal within the time restrictions delineated in Rule 4. Because we find that no exception to the rule applies, we find Bolton’s appeal to be procedurally barred. Therefore, we dismiss with prejudice.

¶ 15. THIS APPEAL IS DISMISSED FOR LACK OF JURISDICTION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.