Tolliver v. Mladineo
| Docket Number: | 2005-CA-02326-COA Linked Case(s): 2005-CA-02326-COA2005-CT-02326-SCT2005-CT-02326-SCT |
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| Oral Argument: | 03-20-2007 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 07-17-2007 Opinion Author: MYERS, P.J. Holding: Affirmed on Appeal; Reversed & Vacated on CrossApp |
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| Additional Case Information: |
Topic: Medical malpractice - Wrongful death - Statute of limitations - Substitution of parties - M.R.C.P. 15 - Section 11-7-13 - Mandatory docket call - M.R.C.P. 41(b) - Dismissal Judge(s) Concurring: CHANDLER, GRIFFIS, ISHEE, ROBERTS, AND CARLTON, JJ. Non Participating Judge(s): BARNES, J. Dissenting Author : IRVING, J., KING, C.J. (W/o Sep. Opinion) Dissent Joined By : LEE, P.J. (Joined IRVING) Procedural History: Dismissal Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 04-21-2005 Appealed from: Hinds County Circuit Court Judge: W. Swan Yerger Disposition: CIRCUIT COURT DISMISSED CASE WITH PREJUDICE. Case Number: 251-02-1657CIV |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | ANTHONY TOLLIVER, ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF SHIRLEY ANN TOLLIVER GREEN |
HIAWATHA NORTHINGTON II
ISAAC K. BYRD, JR. |
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| Appellee: | JOHN MLADINEO, M.D. AND JOHN CHRISTOPHER HANCOCK, M.D. | WHITMAN B. JOHNSON, III MARK P. CARAWAY CORY L. RADICIONI LORRAINE W. BOYKIN |
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| Topic: | Medical malpractice - Wrongful death - Statute of limitations - Substitution of parties - M.R.C.P. 15 - Section 11-7-13 - Mandatory docket call - M.R.C.P. 41(b) - Dismissal |
| Summary of the Facts: | Shirley Ann Tolliver Green died as a result of complications arising during an abdominal hysterectomy on March 4, 2001. 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. Doctors Mladineo and Hancock initiated some discovery in the case, deposing Green’s brother, 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. During the pendency of this litigation, the judge 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. Attendance was mandatory. 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. 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. Thereafter, the circuit court dismissed the medical malpractice claim against Doctors Mladineo and Hancock for failure to prosecute. Tolliver, on behalf of the wrongful death beneficiaries of Shirley Ann Tolliver Green, now appeals the dismissal of the complaint, seeking reinstatement of his claim. Doctors Mladineo and Hancock cross-appeal. |
| Summary of Opinion Analysis: | Issue 1: Statute of limitations Doctors Mladineo and Hancock argue that the court erred in allowing the substitution of parties pursuant to M.R.C.P. 15©. Under Rule 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. Under Mississippi case law, a decedent’s sibling is barred from bringing suit under section 11-7-13, the wrongful death statute, when the decedent has left a surviving spouse or children. Thus, Malone lacked standing to bring suit for the wrongful death of his sister because she was survived by her husband and children. Although the decedent’s brother, Malone, brought the wrongful death claim within the applicable statute of limitations, his complaint lacked standing. Since the lack of standing robs the court of jurisdiction to hear the case, any ruling on such a case is void ab initio. It follows, then, that an amended complaint filed in a case where the original complainant lacks standing cannot relate back to the filing of the original complaint, because a complaint cannot relate back to a nullity. The next issue is whether the amended complaint filed by the proper party plaintiff, Tolliver, was filed timely. Because an amended complaint cannot relate back to an original complaint if the original complaint is brought without standing, such an amended complaint substituting a party as plaintiff should be regarded as the initiation of a new action with regard to analysis pursuant to the statute of limitations. The cause of action for wrongful death accrues at the time of death and is for the benefit of the statutory beneficiaries. The statute of limitations applicable to a wrongful death action is adopted from the statute of limitations that governs the tort that caused the death. Here, the underlying claim of tort against the doctors for the death of the decedent is medical malpractice, which carried a two year statute of limitations. The time clock for filing such an action began on March 4, 2001, the date of Shirley’s death. The surviving spouse or children then had two years from the date of death, until March 4, 2003, to file a complaint for wrongful death. However, no such complaint was filed until June 16, 2004, when her son, Anthony Tolliver filed the amended complaint. The applicable time period to bring an action for wrongful death had passed, and thus, the complaint against Doctors Mladineo and Hancock was time-barred. Issue 2: Mandatory docket call Tolliver argues that one instance of failing to appear at the docket call did not amount to the requisite misconduct necessary for a trial court to dismiss a lawsuit pursuant to M.R.C.P. 41(b). Rule 41(b) provides for the dismissal of a stale lawsuit for the failure of the plaintiff to prosecute the case. An affirmance of a dismissal with prejudice usually occurs when clear delay or contumacious conduct has been shown, and there is at least one other aggravating factor warranting the harshest of sanctions. In this case, after the complaint was first filed in December of 2002, and then amended to substitute the plaintiff on June 16, 2004, little activity occurred in the case until the order of dismissal was entered on April 27, 2005. On April 21, 2005, Tolliver’s counsel failed to appear at the mandatory docket call despite being sent a notice of the call warning that “failure to attend will result in the dismissal with prejudice of cases and/or sanctions.” The time between the change in counsel and the docket call amounted to seven months wherein activity on the case lay entirely dormant. Thus, the record sufficiently shows a clear record of delay. The delay in this case was caused by the plaintiff personally. By failing to properly and timely bring the suit, Tolliver delayed the suit from going forward and thus personally contributed to delay. |
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