Meadows v. Blake
| Docket Number: | 2008-CA-02074-SCT Linked Case(s): 2008-CA-02074-SCT |
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| Oral Argument: | 03-30-2010 | |
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| Supreme Court: | Opinion Link Opinion Date: 06-10-2010 Opinion Author: Carlson, P.J. Holding: Reversed and remanded |
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| Additional Case Information: |
Topic: Medical malpractice - Substitution of parties - M.R.A.P. 43(a) - M.R.C.P. 25 - M.R.C.P. 15(a) - Section 11-51-3 - Waiver of defense - Section 11-1-58 Judge(s) Concurring: Waller, C.J., Dickinson, Randolph, Lamar, Kitchens, Chandler and Pierce, JJ. Judge(s) Concurring Separately: Waller, C.J., Specially Concurs with Separate Written Opinion Joined by Carlson, P.J., Dickinson, Randolph, Lamar and Pierce, JJ. Concurs in Result Only: Graves, P.J. Procedural History: Dismissal Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 02-08-2008 Appealed from: Hinds County Circuit Court Judge: W. Swan Yerger Disposition: Blake and Baptist filed their Defendants’ Joint Motion to Dismiss for Plaintiffs’ Failure to Comply with the Requirements of Miss. Code Ann. § 11-1-58, which the trial court granted, dismissing the Meadowses’ claims with prejudice. Case Number: 251-04-1012CIV |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Louise Meadows and Lavelle Meadows |
ROBERT V. GREENLEE, SHANE F. LANGSTON |
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| Appellee: | Kendall T. Blake, M.D., Mississippi Baptist Health Systems, Inc. d/b/a Mississippi Baptist Medical Center | LEO JOSEPH CARMODY, JR., PAMELA SUE RATLIFF, STUART ROBINSON, JR., GAYE NELL LOTT CURRIE, EUGENE RANDOLPH NAYLOR | ||
| Appellee #2: | ||||
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: | Medical malpractice - Substitution of parties - M.R.A.P. 43(a) - M.R.C.P. 25 - M.R.C.P. 15(a) - Section 11-51-3 - Waiver of defense - Section 11-1-58 |
| Summary of the Facts: | Louise Meadows and Lavelle Meadows filed suit against Kendall Blake, M.D. and Mississippi Baptist Health Systems, Inc. d/b/a Mississippi Baptist Medical Center, alleging medical negligence in the care and treatment of Louise Meadows and loss of consortium on behalf of Lavelle Meadows. Blake and Baptist filed a joint motion to dismiss which the court granted. The Meadowses appeal. |
| Summary of Opinion Analysis: | Issue 1: Substitution of parties The Meadowses filed a motion to substitute pursuant to M.R.A.P. 43(a), seeking to substitute as named plaintiffs and appellants in place of appellant Lavelle Meadows, deceased, and Louise Meadows, deceased, the following: Kaye Burt, individually and as administratrix, heir and wrongful death beneficiary of the estate of Louise Meadows, deceased, and as administratrix and heir of the estate of Lavelle Meadows, deceased; and Judy Brown, individually and as heir and wrongful death beneficiary of the estate of Louise Meadows, deceased, and as heir of the estate of Lavelle Meadows, deceased. Blake and Baptist argue that, because the Meadowses failed to effect requisite substitution in the trial court, the motion should be denied. They argue that the Meadowses never moved the trial court for substitution of Louise pursuant to M.R.C.P. 25, and because Louise’s death preceded judgment, M.R.A.P. 43(a) has no application to Louise. They also argue that, since the Meadowses failed to substitute Lavelle as a party-plaintiff in the underlying action, Rule 43(a) also has no application to Lavelle. In July 2005, the Meadowses filed their Plaintiff’s Motion for Leave of Court to File First Amended Complaint in the trial court. This motion suggested the death of Louise upon the record. Blake and Baptist argue that, pursuant to Rule 25, the Meadowses thus had ninety days from the date this motion was filed to file their motion for substitution with the trial court; however, this provision is inapplicable, since the Plaintiff’s Motion for Leave of Court to File First Amended Complaint also incorporated the Meadowses motion for substitution. Although the motion referenced M.R.C.P. 15(a) and not Rule 25, in substance it was undoubtedly both a motion to substitute parties to continue Louise’s claims and a motion to amend the complaint to add a wrongful-death claim. The trial court, however, never ruled on the substitution-of-parties issue, but instead declared this issue moot. The Meadowses now seek substitution of parties pursuant to M.R.A.P. 43. Section 11-51-3 provides that an appeal may be taken to the Supreme Court from any final judgment of a circuit or chancery court in a civil case, not being a judgment by default, by any of the parties or legal representatives of such parties. As such, Lavelle, as both a party to this action and certainly a legal representative of Louise, being her husband, was entitled to appeal from the final judgment of the Hinds County Circuit Court subsequent to Louise’s death. Thus, according to Rule 43(a), once a notice of appeal has been filed, substitution shall be effected in the appellate court in accordance with this Rule 43(a), and this rule is applicable to Louise. Rule 43 is likewise applicable to Lavelle, who died while this matter was pending on appeal, and subsequent to his death, counsel for the Meadowses properly suggested his death on the record. Issue 2: Waiver of defense The Meadowses argue that Blake and Baptist waived their objection to the Meadowses’ lack of strict compliance with section 11-1-58(4) due to their unreasonable delay in pursuing the defense for nearly three years and until after the Meadowses designated their experts and otherwise after actively litigating the merits of the case. A defendant’s failure to timely and reasonably raise and pursue the enforcement of any affirmative defense or other affirmative matter or right which would serve to terminate or stay the litigation, coupled with active participation in the litigation process, will ordinarily serve as a waiver. Baptist and Blake both asserted the defense of the Meadowses’ failure to comply with section 11-1-58 in their answers, which were filed on January 14 and 20, 2005. However, Baptist and Blake failed to further assert or pursue this defense until they filed their Joint Motion to Dismiss for Plaintiffs’ Failure to Comply with the Requirements of section 11-1-58 on March 30, 2007. The Meadowses filed their second Certificate of Plaintiffs’ Attorney pursuant to section 11-1-58 on June 13, 2005, which still did not trigger Baptist’s and Blake’s pursuit of their defense. During this two-year delay, Baptist and Blake also participated actively in the litigation process. Because there are no extreme and unusual circumstances, Baptist and Blake waived the defense. |
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