Brewer v. Wiltcher
| Docket Number: | 2008-IA-01899-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 12-03-2009 Opinion Author: Lamar, J. Holding: Reversed and rendered. The case is dismissed with prejudice. |
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| Additional Case Information: |
Topic: Medical malpractice - Summary judgment - Section 15-1-36(15) - Pre-suit notice - M.R.C.P. 5 Judge(s) Concurring: Waller, C.J., Carlson, P.J., Dickinson, Randolph, Kitchens, Chandler and Pierce, JJ. Dissenting Author : Graves, P.J., without separate written opinion. Procedural History: Bench Trial Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 10-29-2008 Appealed from: RANKIN COUNTY CIRCUIT COURT Judge: Samac Richardson Disposition: Trial Court denied a motion to dismiss under MCA 15-1-36(15). Case Number: 2008-0183-R |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | LINDA BREWER |
STEPHEN P. KRUGER, JAN F. GADOW |
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| Appellee: | JASON WILTCHER | DOUG WADE, LOUIS J. GUICHET, III | ||
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| Topic: | Medical malpractice - Summary judgment - Section 15-1-36(15) - Pre-suit notice - M.R.C.P. 5 |
| Summary of the Facts: | Jason Wiltcher filed a medical-malpractice action against Linda Brewer, Pelahatchie Medical Clinic, and John Does 1, 2, and 3. Prior to filing an answer, Brewer and the Clinic filed a motion to dismiss with prejudice based on Wiltcher’s failure to send any notice in compliance with section 15-1-36(15). The trial court found that Wiltcher had failed to send any notice to the Clinic, as the notice letter was addressed only to Brewer. The court granted summary judgment to the Clinic but denied Brewer’s motion for the same relief. The Supreme Court granted Brewer’s permission to bring an interlocutory appeal. |
| Summary of Opinion Analysis: | The trial court erred in converting the motion to dismiss to a motion for summary judgment. A motion to dismiss for failure to comply with section 15-1-36(15) does not reach the merits of a cause of action; therefore, the trial court should not have treated the motion as one for summary judgment. Brewer argues that Wiltcher failed to present any evidence to establish that pre-suit notice was mailed, delivered, or received. The mechanics of M.R.C.P. 5 apply when notice is mandated as a preliminary step to filing a lawsuit, such as the notice required under section 15-1-36. Rule 5 provides in relevant part that every written notice shall be served by mailing it to an attorney or party at his last known address and that service by mail is complete upon mailing. Rule 5 further provides that proof of service of any paper shall be upon certificate of the person executing the same. There is a presumption that mail deposited, postage prepaid and properly addressed is timely delivered to the person addressed. In order for the presumption to arise, the proponent must present sufficient evidence that the letter was stamped and mailed. Wiltcher failed to present any witness to attest that the notice letter was actually stamped and placed in the mail. Wiltcher’s testimony regarding his usual practice and procedure is insufficient to establish that notice was served in compliance with section 15-1- 36(15) and Rule 5. Further, the unsigned letter attached to Wiltcher’s response lacked a certificate of service, which would provide some proof of service. |
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