Forest Hill Nursing Ctr. v. Brister


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Docket Number: 2006-IA-00420-SCT
Linked Case(s): 2006-IA-00420-SCT ; 2006-TS-00420-SCT

Supreme Court: Opinion Link
Opinion Date: 10-23-2008
Opinion Author: Carlson, J.
Holding: Reversed and Rendered; The motion for rehearing is granted. The previous order dismissing these interlocutory appeals is vacated and these opinions are substituted therefor.

Additional Case Information: Topic: Wrongful death - Statutory notice requirement - Section 15-1-36(15) - Certificate of expert consultation - Section 11-1-58
Judge(s) Concurring: Smith, C.J., Waller, P.J., Dickinson, Randolph and Lamar, JJ.
Dissenting Author : Easley, J., without separate written opinion.
Dissenting Author : Diaz, P.J., with separate written opinion.
Dissent Joined By : Joined in Part by Graves, J.
Procedural History: Motion for Rehearing; Interlocutory Appeal
Nature of the Case: CIVIL - WRONGFUL DEATH; Interlocutory Appeal; Motion for Rehearing

Trial Court: Date of Trial Judgment: 02-13-2006
Appealed from: Hinds County Circuit Court
Judge: Winston Kidd
Disposition: The Hinds County Circuit Court denied Dr. Timothy Estes’s motion to dismiss which asserted that the plaintiff failed to comply with Mississippi Code Annotated Sections 15-1-36(15) (Rev. 2003) and 11-1-58(1) (Supp. 2007). The Supreme Court dismissed the interlocutory appeals as to Forest Hill and Long Term Care based on untimely joinder on the part of Forest Hill and Long Term Care.
Case Number: 251-03-841CIV
  Consolidated: Consolidated with 2006-IA-00364-SCT.

Note: The Supreme Court also held that Appellee's Rule 38 Motion for Damages for Frivolous Appeal and Response to Forest Hill Nursing Center and Long Term Care Management, LLC's motion for rehearing is dismissed as moot.

  Party Name: Attorney Name:  
Appellant: FOREST HILL NURSING CENTER AND LONG TERM CARE MANAGEMENT, LLC




MARJORIE SELBY BUSCHING; STEVEN MARK WANN; HEATHER M. ABY



 

Appellee: FREDERICA BRISTER, CONSERVATOR OF W I L L I E M c K E E , A S P E R S O N A L REPRESENTATIVE OF PEARL HENRY, DECEASED, AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF PEARL HENRY, DECEASED GIGI GIBSON; CHARLES E. GIBSON, III  

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Topic: Wrongful death - Statutory notice requirement - Section 15-1-36(15) - Certificate of expert consultation - Section 11-1-58

Summary of the Facts: The motion for rehearing is granted, and these opinions are substituted for the order dismissing the interlocutory appeals. Willie McKee filed a complaint in the Circuit Court for the First Judicial District of Hinds County, as personal beneficiary of Pearl Henry, deceased, for her wrongful death. The complaint named as defendants Forest Hill Nursing Center, Inc., f/k/a Crawford Nursing Home, Rhonda Bounds, Verna Ball Cook, and John Does 1-10. A year later, McKee filed another complaint against Forest Hill. Forest Hill filed a motion to dismiss. After the judge denied the motion, Forest Hill filed a Motion for Interlocutory Appeal. McKee filed a Notice of Substitution for the John Does listed and Amendment to Complaint and all Pleadings. The judge entered an order allowing McKee to substitute known parties for the named John Does. A single justice order was entered by the Supreme Court denying Forest Hill’s Motion for Interlocutory Appeal. Dr. Estes filed a motion to dismiss. Forest Hill, Long Term Care, Franklin, and Buffington also filed a motion to dismiss. Rhonda Bounds also filed a motion to dismiss. Robert Crawford filed a Joinder to Dr. Estes’s Motion to Dismiss. Other motions were filed, and eventually, the judge entered an order denying Rhonda Bounds’s Motion to Dismiss; an order denying Williams’s Motion to Dismiss; and an order denying Dr. Estes’s Motion to Dismiss. Dr. Estes filed two interlocutory appeals. The Supreme Court entered an order granting and consolidating both of Dr. Estes’s interlocutory appeals.

Summary of Opinion Analysis: Issue 1: Statutory notice requirement Forest Hill and Long Term Care argue that no notice was given to any defendant under section 15-1-36(15) before filing suit and that Brister admitted this to the trial court. Brister argues that she was not required to give sixty days notice because Henry passed away on July 31, 2001, and her cause of action thus accrued before January 1, 2003, the effective date of the amendment to the statute. However, the Court has clearly held that the statutory notice is required for claims filed on or after January 1, 2003, regardless of when the claim accrued. Because Forest Hill was entitled to sixty days notice before the filing of the suit, Forest Hill was entitled to dismissal. As to Long Term Care, Brister correctly argues that she was not required to give notice to Long Term Care, who were substituted as John Does, under section 15-1-36(15). Issue 2: Certificate of expert consultation Forest Hill and Long Term Care argue that the plaintiff failed to accompany the complaint with a certificate of expert consultation at the time suit was commenced as required by section 11-1-58. The plaintiff’s attorney in today’s case admits that he did not consult an expert prior to commencing this lawsuit. Thus, the complaint against Forest Hill must be dismissed for failure to comply with the pre-suit requirements of section 11-1-58(1). In addition, a subsequent substitution of Long Term Care as a party to a suit that must be dismissed was meaningless.


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