East Miss. State Hosp., et al. v. Adams
| Docket Number: | 2005-IA-01899-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 01-18-2007 Opinion Author: COBB, P.J. Holding: AFFIRMED AND REMANDED |
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| Additional Case Information: |
Topic: Wrongful death - Service on Attorney General - M.R.C.P. 4(d)(5) - Waiver of insufficiency of process - M.R.C.P. 12(h)(1) Judge(s) Concurring: SMITH, C.J., WALLER, P.J., DIAZ, EASLEY, CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ. Procedural History: Dismissal Nature of the Case: CIVIL - WRONGFUL DEATH |
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| Trial Court: |
Date of Trial Judgment: 09-28-2005 Appealed from: Lauderdale County Circuit Court Judge: Robert Bailey Disposition: Denied Appellant's Motion to Dismiss Case Number: 03-CV-104(B) |
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| Party Name: | Attorney Name: | |||
| Appellant: | EAST MISSISSIPPI STATE HOSPITAL AND THE
MISSISSIPPI DEPARTMENT OF MENTAL
HEALTH
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BRETT WOODS ROBINSON |
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| Appellee: | CODELL ADAMS AND LEVORD ADAMS, INDIVIDUALLY, AND ON BEHALF OF ALL THE HEIRS AT LAW OF JOE CEPHUS ADAMS, DECEASED | CHARLES W. WRIGHT, JR. |
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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: | Wrongful death - Service on Attorney General - M.R.C.P. 4(d)(5) - Waiver of insufficiency of process - M.R.C.P. 12(h)(1) |
| Summary of the Facts: | East Mississippi State Hospital, a division of the Mississippi Department of Mental Health, operates the Reginald P. White Facility, which is a licensed nursing home. One month after Joe Adams was admitted to the White Facility, he was found unresponsive, and died two days later. An autopsy revealed his death was caused by blunt force trauma to the head. Codell Adams and Levord Adams, brothers of the decedent, filed a wrongful death suit against EMSH and MDMH. Two years after the complaint and answer were filed, after extensive discovery was undertaken, the defendants filed a motion to dismiss and alternately for summary judgment, challenging the service of process claiming, inter alia, it was inadequate because the Mississippi Attorney General was not served as required by M.R.C.P. 4(d)(5). The judge denied defendants’ motion to dismiss, and the Supreme Court granted them permission to bring this interlocutory appeal. |
| Summary of Opinion Analysis: | This case involves an issue of first impression concerning the application of M.R.C.P. 4(d)(5) which requires service of process on the Attorney General when suit is filed against the State of Mississippi or any one of its departments, officers or institutions. In this case, there was no attempt to serve the Attorney General, even after the plaintiffs were made aware of this requirement by the defendants’ motion to dismiss. The defendants argue they preserved the defenses in their answer and therefore the trial court should have granted their motion to dismiss. The plaintiffs argue that defendants’ participation in the litigation and failure to pursue the insufficiencies related to process, especially the service upon the Attorney General, constituted a waiver. The trial court was correct when it determined process was insufficient because the plaintiffs served the Chief Executive Officers of MDMH and the EMSH rather than the Mississippi Attorney General, and there was no subsequent effort to correctly serve process on the Attorney General within 120 days of the filing of the complaint as required by M.R.C.P. 4(h). M.R.C.P. 12(h)(1), which addresses waiver of insufficiency of process if neither made by a motion under this rule nor included in a responsive pleading or an amendment thereof, is not applicable here, as the defendants raised the defenses of insufficient process and insufficient service of process in a responsive pleading (the answer). However, the defendants participated fully in the litigation of the merits for over two years without actively contesting jurisdiction in any way. They participated fully in discovery, filed and opposed various motions. While the defendants may have literally complied with Rule 12(h), they did not comply with the spirit of the rule. Therefore, they waived the defenses of insufficiency of process and insufficiency of service of process. |
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