Veal, et al. v. J. P. Morgan Trust Co.
| Docket Number: | 2005-IA-00607-SCT Linked Case(s): 2005-IA-00607-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 05-10-2007 Opinion Author: DICKINSON, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Personal injury - Fictitious parties - M.R.C.P. 9(h) - Leave to amend - M.R.C.P. 15(a) - M.R.C.P. 21 Judge(s) Concurring: SMITH, C.J., WALLER, P.J., EASLEY AND RANDOLPH, JJ. Non Participating Judge(s): CARLSON, J. Dissenting Author : DIAZ, P.J., AND GRAVES, J. Procedural History: Dismissal Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 03-03-2005 Appealed from: WASHINGTON COUNTY CIRCUIT COURT Judge: W. Ashley Hines Disposition: Striking newly admended complaint & dismissing newly named defendants Case Number: CI2002-484 |
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| Party Name: | Attorney Name: | |||
| Appellant: | WILLIE MAE VEAL, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF WILLIE MAE SMITH, FOR THE USE AND BENEFIT OF THE ESTATE AND WRONGFUL DEATH BENEFICIARIES OF WILLIE MAE SMITH |
DOUGLAS BRYANT CHAFFIN
GARRY JAMES RHODEN
KENNETH L. CONNER
SUSAN NICHOLS ESTES |
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| Appellee: | J. P. MORGAN TRUST COMPANY, N.A. f/k/a CHASE MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION; EATON VANCE CORP.; EATON VANCE MUNICIPALS TRUST AND EATON VANCE MUNICIPALS TRUST II | MARK HERNDON TYSON H. HUNTER TWIFORD LAWRENCE D. WADE BRADLEY FAREL HATHAWAY LEANN W. NEALEY CHAD ROBERTS HUTCHINSON |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Personal injury - Fictitious parties - M.R.C.P. 9(h) - Leave to amend - M.R.C.P. 15(a) - M.R.C.P. 21 |
| Summary of the Facts: | Willie Mae Veal brought an action on behalf of the Estate of Willie Mae Smith against two corporations alleged to be in control of Autumn Leaves Nursing Home, the nursing home’s administrator and licensee, as well as ten “John Does” and ten “Unidentified Entities.” The complaint alleged negligence, medical malpractice, malice and/or gross negligence, fraud, statutory survival, and statutory wrongful death claims. The plaintiff filed an Amended Complaint to add that Veal had been appointed Administratrix of Smith’s Estate. Veal filed a Second Amended Complaint, which purported to substitute the true names of several fictitious parties, who were referred to in her Original and First Amended Complaints as “John Does” and “Unidentified Entities.” The newly named defendants included: J.P. Morgan Trust Co.; Eaton Vance Corp.; Eaton Vance Municipals Trust; Eaton Vance Municipals Trust II; and Donald R. Dwight, James B. Hawkes, and Jessica M. Bibliowicz as Trustees of Eaton Vance Municipals Trust and Eaton Vance Municipals Trust II. In addition, the Second Amended Complaint included new facts and allegations regarding the “substituted” defendants’ involvement and alleged control over the defendant corporations. J.P. Morgan Trust Co. filed a motion to dismiss. Eaton Vance Municipals Trust, Eaton Vance Municipals Trust II and Eaton Vance Corp. also filed a motion to dismiss. The judge issued an order striking Veal’s Second Amended Complaint and dismissing J.P. Morgan without prejudice. The judge issued another order dismissing Eaton Vance without prejudice. Veal sought an interlocutory appeal which the Supreme Court granted. |
| Summary of Opinion Analysis: | Where a plaintiff wishes to file suit against a defendant whose name is not known, the suit may be filed by providing the defendant a fictitious name. The purpose of M.R.C.P. 9(h) is to allow a plaintiff to proceed with a lawsuit where the plaintiff knows and can articulate the wrongful conduct of, and claims against, the fictitious party, but simply does not know that party’s name. Rule 9(h) does not say that a plaintiff may include a fictitious party because the plaintiff suspects that there might be someone out there who might have engaged in conduct which might be actionable. Where a plaintiff suspects that there might have been others involved in the procedure who might have been negligent, but is, at the time suit is filed, unaware of who they are or what negligent act they are alleged to have committed, the plaintiff may not include a fictitious party in the complaint. Rule 9(h) does not require leave of the court to amend pursuant to M.R.C.P. 15(a). In cases where it is unnecessary to amend the content or the substance of a plaintiff’s complaint, and the only change is to substitute the defendant’s true name for the fictitious name, Rule 9(h) applies and leave of court is not required. Veal included in her complaint allegations against “fictitious” parties “Defendants John Does 1 through 10,” and “Defendants Unidentified Entities 1 through 10.” The general allegations in the complaint provide no indication that Veal was aware of the existence of any of the additional defendants added by the Second Amended Complaint. Veal simply attempted to substitute newly discovered defendants for the previously named fictitious parties. Veal not only added new allegations against these “substituted” defendants, but also included new facts in support of these allegations. Her factual summary included new theories of “bondholders’ control” and “lender liability” against the newly named defendants, none of which were included in Veal’s Original and First Amended Complaints. Because these substituted defendants were not fictitious parties, they could not have been simply substituted in accordance with the provisions of Rule 9(h). Veal argues that she obtained written consent from the original defendants to amend the complaint and, in accordance with Rule 15(a), she was entitled to file a Second Amended Complaint which “substituted” fictitious defendants without leave of the court. However, even where a plaintiff has obtained consent from the adverse party to amend the complaint, leave of court may still be required by a different rule. Where, as here, the amendment sought is to add new defendants, M.R.C.P. 21 is applicable, and requires an order from the court to add a new defendant. Because the Second Amended Complaint added new defendants, it also included an amendment which required court approval pursuant to Rule 21. Veal’s failure to obtain court approval rendered the entire Second Amended Complaint improper. |
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