Tolliver ex rel. Green v. Mladineo, 2005-CA-02326-COA.

• Decision Date: 17 July 2007
• Docket Number: No. 2005-CA-02326-COA.,2005-CA-02326-COA.
• Citation: 987 So.2d 989
• Parties: Anthony TOLLIVER, On Behalf of the WRONGFUL DEATH BENEFICIARIES OF Shirley Ann Tolliver GREEN, Appellant/Cross-Appellee v. John MLADINEO, M.D. and John Christopher Hancock, M.D., Appellees/Cross-Appellants.
• Court: Mississippi Court of Appeals

987 So.2d 989

Anthony TOLLIVER, On Behalf of the WRONGFUL DEATH BENEFICIARIES OF Shirley Ann Tolliver GREEN, Appellant/Cross-Appellee v. John MLADINEO, M.D. and John Christopher Hancock, M.D., Appellees/Cross-Appellants.

No. 2005-CA-02326-COA.

Court of Appeals of Mississippi.

July 17, 2007.

Rehearing Denied January 22, 2008.

Hiawatha Northington II, Isaac K. Byrd, Jr., Jackson, attorneys for appellant.

Whitman B. Johnson, III, Mark P. Caraway, Cory L. Radicioni, Jackson, Lorraine W. Boykin, attorneys for appellee.

Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.

MYERS, P.J., for the Court.

¶ 1. This is an appeal from the trial court's order dismissing the appellant's, Anthony Tolliver's, complaint with prejudice for the failure of plaintiff's counsel to attend a special civil docket call. Doctors John Mladineo and John Christopher Hancock, the appellees, cross-appeal a separate matter, requesting this Court to consider whether the trial court erred during the litigation of this case in allowing the substitution of parties. Because we find that the trial court erred in allowing a substitution of the party plaintiff, we hold that the complaint was filed untimely and thus relief is barred by the applicable statute of limitations. Therefore, we uphold the dismissal of the appellant's case, but on different grounds than the trial court concluded.

FACTS AND PROCEDURAL HISTORY

¶ 2. Shirley Ann Tolliver Green died as a result of complications arising during an abdominal hysterectomy on March 4, 2001. She was survived by her husband, children and brother. Green's brother, Michael Malone, first filed a wrongful death suit against Doctors John Mladineo and John Christopher Hancock in the Hinds County Circuit Court, First Judicial District, on December 16, 2002. The case was assigned to Circuit Judge W. Swan Yerger. Doctors Mladineo and Hancock filed a motion to dismiss and answered the December 16, 2002 complaint, asserting, among other defenses, lack of standing. Doctors Mladineo and Hancock initiated some discovery in the case, deposing Green's brother, Plaintiff Michael Malone. Thereafter, Green's brother moved the trial court to allow his substitution by Green's son, Anthony Tolliver, as plaintiff in an amended complaint. The trial court allowed the substitution of Tolliver as plaintiff and the amended complaint reflecting the substituted plaintiff was filed by Tolliver on June 16, 2004. Shortly thereafter, plaintiff's counsel moved to withdraw from her representation and a motion was granted allowing Ottowa Carter to be substituted as counsel of record.

¶ 3. Meanwhile, during the pendency of this litigation, the Hinds County Circuit Court became aware of a backlog of cases awaiting the scheduling of a trial setting. In response to this backlog of cases, on March 23, 2005, Judge Yerger issued an order for a mandatory special civil docket call to be held on April 21, 2005 for civil cases pending before him that were filed prior to January 1, 2003. Pursuant to the order, an attorney of record, or a designated attorney representative, was required to appear with full information regarding the status of these cases. Attendance was mandatory, as the court's notice contained the following statement in bold lettering: "Failure to attend will result in the dismissal with prejudice of cases and/or sanctions."

¶ 4. Tolliver's case against Doctors Mladineo and Hancock fell within the category of cases that required attorney representation at the mandatory docket call before Judge Yerger. The mass docket call went forward as scheduled on April 21, 2005; however, when the docket was called, no attorney or designated attorney representative came forward to present the status of the case on behalf of the plaintiffs.¹ Thereafter, on April 27, 2005, the circuit court dismissed the medical malpractice claim against Doctors Mladineo and Hancock for failure to prosecute, pursuant to Rule 41(b) of the Mississippi Rules of Civil Procedure. On May 13, 2005, the plaintiff moved for a reinstatement of the case, but the motion was denied.

¶ 5. Tolliver, on behalf of the wrongful death beneficiaries of Shirley Ann Tolliver Green, now appeals the dismissal of the complaint, arguing that the trial court abused its discretion, seeking reinstatement of his claim. Doctors Mladineo and Hancock cross-appeal a separate matter, requesting this Court to consider whether the trial court erred in allowing the substitution of parties pursuant to Rule 15(c) of the Mississippi Rules of Civil Procedure. We address the issue on cross-appeal first in our discussion, as our decision in this issue is dispositive and relevant to our finding in the original issue on appeal.

I. CROSS APPEAL: WHETHER DISMISSAL OF TOLLIVER'S CLAIM SHOULD BE UPHELD BECAUSE THE CLAIM WAS FILED AFTER THE STATUTE OF LIMITATIONS EXPIRED.

¶ 6. Michael Malone initially brought suit against Doctors Mladineo and Hancock for the wrongful death of his sister under Mississippi Code Annotated section 11-7-13 (Rev.2004), on behalf of the wrongful death beneficiaries and in his own individual name on December 16, 2002. The defendants answered the complaint and moved to dismiss the complaint based upon Malone's lack of standing to sue. They asserted that since the decedent, Shirley Ann Tolliver Green, died leaving a surviving spouse and children, the brother was not the proper party plaintiff and, therefore, the suit should be dismissed for lack of standing. Thereafter, Malone moved the trial court for leave to amend the complaint to substitute in his place the decedent's son, Anthony Tolliver, as party plaintiff for and on behalf of the wrongful death beneficiaries of the decedent. Malone, in his motion for leave to amend the complaint to substitute Tolliver in his place as plaintiff, stated that he encountered a conflict of interest whereby he could no longer effectively act on behalf of the wrongful death beneficiaries of Shirley Ann Tolliver Green. The circuit court granted Malone's motion on May 18, 2004, finding that pursuant to Mississippi Rule of Civil Procedure 15, Malone was entitled to substitute Tolliver as the plaintiff representative of the wrongful death beneficiaries. Tolliver thereafter filed his amended complaint on June 16, 2004.

¶ 7. Doctors Mladineo and Hancock argue first that it was error for the circuit court to allow Tolliver to be substituted for Malone as plaintiff because (1) such a substitution is not allowed within the meaning of Mississippi Rule of Civil Procedure 15 and (2) because such a substitution was not authorized, once Tolliver filed the amended complaint, the statute of limitations had already expired to bring the wrongful death claim. The doctors further argue that in addition to the untimeliness of the filing of the complaint, the complaint also failed to comply with the notice and pleading requirements of Mississippi Code Annotated section 15-1-36 (Rev.2003), so that the dismissal of the claim by the trial court was proper.

¶ 8. Under Mississippi Rule of Civil Procedure 15(a), leave to amend a complaint "shall be freely given when justice so requires." Such leave to amend is not granted automatically, but lies within the Court's discretion. Pratt v. City of Greenville, 804 So.2d 972, 976(¶ 9) (Miss. 2001). This discretion of the trial court to allow an amendment to a complaint is reviewed by this Court only for an abuse of discretion. Id. However, a proper analysis of whether a trial court had the authority to allow an amendment to a complaint begins in this case with determining whether the complainant lacked standing.

¶ 9. Our wrongful death statutes read in pertinent part:

Whenever the death of any person ... shall be caused by any real, wrongful or negligent act or omission ... [t]he action for such damages may be brought in the name of the personal representative of the deceased person ... for the benefit of all persons entitled under the law to recover, or by widow for the death of her husband, or by the husband for the death of the wife, or by the parent for the death of a child or unborn quick child, or in the name of a child, or in the name of a child for the death of a parent, or by a brother for the death of a sister, or by a sister for the death of a brother, or by a sister for the death of a sister, or a brother for the death of a brother, or all parties interested may join in the suit, and there shall be but one (l) suit for the same death which shall ensue for the benefit of all parties concerned, but the determination of such suit shall not bar another action unless it be decided on its merits.

. . . .

Damages for the injury and death of a married man shall be equally distributed to his wife and children, and if he has no children all shall go to his wife; damages for the injury and death of a married woman shall be equally distributed to the husband and children, and if she has no children all shall go to the husband; and if the deceased has no husband or wife, the damages shall be equally distributed to the children; if the deceased has no husband, nor wife, nor children, the damages shall be distributed equally to the father, mother, brothers and sisters, or such of them as the deceased may have living at his or her death.

Miss.Code Ann. § 11-7-13 (emphasis added).

¶ 10. We note at the outset of our discussion that the originally named plaintiff, Malone, was among the class of individuals permitted to bring a wrongful death suit by virtue of his sibling relationship to the decedent. However, Malone's standing to bring the wrongful death suit was conditional upon the event that the decedent did not have a surviving spouse or children, who would have the exclusive right to bring the wrongful death action. While our wrongful death statute does not readily appear to assign a hierarchy classification to certain groups of listed beneficiaries that would create a first right to bring a wrongful death suit, Mississippi ...