Wilner v. White, 2000-CA-00007-COA.
| Citation | 788 So.2d 822 |
| Decision Date | 24 April 2001 |
| Docket Number | No. 2000-CA-00007-COA.,2000-CA-00007-COA. |
| Parties | Iris M. WILNER, Appellant v. M. Neal WHITE, III, M.D., Gulf Coast Ob/Gyn, Inc., Calvin George Durel, Jr., M.D. and Pascagoula Anesthesia Ltd., Appellees. |
| Court | Court of Appeals of Mississippi |
Anthony M. Butler, Henri M. Saunders, Baton Rouge, LA, Attorneys for Appellant.
John A. Banahan, James H. Heidelberg, Pascagoula, Attorneys for Appellees.
Before KING, P.J., IRVING, and PAYNE, JJ.
KING, P.J., for the Court:
¶ 1. Iris M. Wilner has appealed from the dismissal of her personal injury action by the Jackson County Circuit Court. Wilner's original complaint, filed against Singing River Hospital System, Nurse L. Runnels and John Does 1-4, alleged that she was injured in a diagnostic laparoscopy performed on January 27, 1997, at the Singing River Hospital in Pascagoula, Mississippi. This complaint was later amended to include Dr. M. Neil White, III, Gulf Coast OB-GYN, P.A., Dr. Calvin George Durel, Jr., and Pascagoula Anesthesia, Ltd. Singing River and Runnels filed an answer to both the original and amended complaints. The other named parties filed motions to dismiss, alleging that the amended complaint was improper since no order had been entered, which permitted it to be filed. Finding that the trial court abused its discretion in dismissing this action, we reverse and remand for proceedings consistent with this opinion.
FACTS
¶ 2. About January 27, 1997, Wilner was admitted to Singing River Hospital to undergo a diagnostic laparoscopy for the purpose of relieving symptoms associated with endometriosis. Other than those symptoms, Wilner claimed to have been in excellent overall physical condition. Wilner, who was employed by Halter Marine as a ship fitter/tacker, performed the duties of this position, including strenuous manual labor, up to the date of the laparoscopic procedure. This procedure was performed by Dr. White, with the assistance of Nurse Runnels and other members of the Singing River Hospital staff. The procedure was done under a general anesthesia, administered by Dr. Durel. Upon awakening from her procedure, Wilner complained of pain, weakness, and numbness in her lower left extremity. She claims that these symptoms have never completely subsided.
¶ 3. Pursuant to Miss.Code Ann. § 11-46-11, on September 8, 1997, Wilner gave Singing River Hospital notice of her intent to file suit. Suit was filed on February 12, 1998. Singing River filed its answer to the original complaint on March 10, 1998. Nurse Runnels filed a 12(b)(6) motion to dismiss on April 9, 1998. On January 27, 1999, Wilner filed a motion to amend complaint and an amended complaint. Singing River filed its answer to Wilner's amended complaint on March 17, 1999. Nurse Runnels answered Wilner's original complaint on March 17, 1999, at which time she also answered Wilner's amended complaint.
¶ 4. Neither Dr. White nor Dr. Durel was named as a defendant in Wilner's original complaint; however, each was aware of the lawsuit from its inception and gave deposition testimony in connection with the lawsuit. In his deposition testimony, Dr. Durel stated that he examined Wilner when she awoke in stage one recovery complaining of problems with her left leg. He further stated that he determined, by touching and pinching, that she had a loss of sensation in her lower left leg from the knee down. Wilner explains that she did not name Drs. White and Durel as defendants in the original complaint because she thought that through the discovery process, she might be better able to determine, with a greater degree of specificity, whom to hold liable for the acts or omissions that caused her injury.
¶ 5. As previously stated, on January 27, 1999, Wilner filed her motion to amend and an amended complaint naming Dr. White, Gulf Coast OB-GYN, P.A., Dr. Durel and Pascagoula Anesthesia, Ltd. as additional defendants, each of whom was served with process within 120 days of the filing of the amended complaint and each of whom responded by filing a motion to dismiss. The motions to dismiss and Wilner's motion to amend were all heard by the trial court on November 5, 1999, at which time the motions to dismiss were granted and Wilner's motion to amend was denied.
ISSUE AND ANALYSIS
Whether the trial court erred in denying the motion to amend complaint and granting the motion to dismiss.
¶ 6. Motions for leave to amend are within the discretion of the trial court, and absent an abuse of that discretion, this Court will not reverse. Frank v. Dore, 635 So.2d 1369, 1375 (Miss.1994). The court below denied Wilner's motion to amend her complaint on the ground that there had been no mistake in ascertaining the identity of the parties she sought to add as defendants. The court also held that since Wilner's motion to amend had been denied there was no relation back to the original complaint; therefore, the statute of limitations had expired as to the parties sought to be added, thus dismissal was warranted.
¶ 7. Rule 15(a) of the Mississippi Rules of Civil Procedure sets forth the requirements for amending complaints and provides, in pertinent part, as follows:
A party may amend his pleading as a matter of course at any time before a responsive pleading is served, or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within thirty days after it is served.... Otherwise, a party may amend his pleading only by leave of court or upon written consent of the adverse party; leave shall be freely given when justice so requires.
¶ 8. The Mississippi Supreme Court in Red Enterprises, Incorporated. v. Peashooter, Incorporated., 455 So.2d 793 (Miss.1984), (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)), held that the mandate of Rule 15(a) that leave to amend "shall be freely given when justice so requires" is to be heeded and if the underlying facts or circumstances relied upon by the plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. The court further held that in the absence of any apparent or declared reason, such as undue prejudice to the opposing party by virtue of allowing the amendment, futility of the amendment, etc., then leave should be "freely given." Red Enter., Inc., 455 So.2d at 795. There is no indication that there would be any undue prejudice caused by the allowance of Wilner's amended complaint.
¶ 9. This Court finds that under the "freely given where justice so requires" standard, Wilner should have been allowed to amend her complaint and to test her claim on the merits since even the few facts given appear to present a proper subject for relief. Estes v. Starnes 732 So.2d 251, 252(¶ 4) (Miss.1999). The motion to amend was filed within the statutory time allowed and should have been granted.
¶ 10. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY DENYING APPELLANT'S MOTION TO AMEND COMPLAINT AND GRANTING APPELLEE'S MOTION TO DISMISS IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS OF THIS APPEAL ARE TAXED TO THE APPELLEES.
¶ 11. The motion for leave to amend was not filed until January 27, 1999, and the actual amendment could not be filed until that leave was obtained. There is no authority for the proposition that the effective date of the amendment is measured from the time of filing the motion seeking leave to amend. Rather, the date of filing of the amended complaint cannot be anything other than the...
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Wilner v. White
...amended complaint and remanded the case with instructions that the amendment be allowed and that the case proceed. Wilner v. White, 788 So.2d 822 (Miss.Ct.App.2001) (Wilner I). Following remand, White filed a motion for summary judgment based on the expiration of the applicable statute of l......
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