Fredericks v. Malouf


<- Return to Search Results


Docket Number: 2009-IA-01181-SCT
Linked Case(s): 2009-IA-01181-SCT

Supreme Court: Opinion Link
Opinion Date: 03-03-2011
Opinion Author: Lamar, J.
Holding: Affirmed and remanded.

Additional Case Information: Topic: Medical malpractice - Venue - Section 11-11-3 - Waiver
Judge(s) Concurring: Carlson, P.J., Dickinson, P.J., Randolph, Kitchens, Chandler and Pierce, JJ.
Non Participating Judge(s): Waller, C.J., and King, J.
Procedural History: Interlocutory Appeal
Nature of the Case: CIVIL - MEDICAL MALPRACTICE

Trial Court: Date of Trial Judgment: 07-16-2009
Appealed from: Hinds County Circuit Court
Judge: Tomie T. Green
Disposition: After the Maloufs joined Dr. Tucker, the Defendants moved to transfer venue to Rankin County. The trial court denied the motion to change venue, finding the Defendants had abandoned it.
Case Number: 251-03-77

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Ruth Fredericks, M.D. and J. Martin Tucker, M.D.




DIANE V. PRADAT, L. CARL HAGWOOD, WHITMAN B. JOHNSON, III, KRISTI D. KENNEDY



 
  • Appellant #1 Brief

  • Appellee: C. Eric Malouf, Kristine K. Malouf individually and on Behalf of Kimberly Malouf, a Minor MICHAEL J. MALOUF, JR., MICHAEL J. MALOUF, SR., WILLIAM WALKER, JR.  

    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.

    Topic: Medical malpractice - Venue - Section 11-11-3 - Waiver

    Summary of the Facts: In 2002, Eric and Kristine Malouf filed a complaint in Hinds County against Dr. Ruth Fredericks, a neurologist. In 2006, they filed an amended complaint adding Dr. J. Martin Tucker, Jr., an obstetrician-gynecologist. After the Maloufs joined Dr. Tucker, the defendants moved to transfer venue to Rankin County. The trial court denied the motion to change venue, finding that the defendants had abandoned it. The Supreme Court granted an interlocutory appeal.

    Summary of Opinion Analysis: The defendants argue that the venue statute in effect when the amended complaint was filed governs this action, and that venue under this statute, section 11-11-3, is nonwaivable. In support of their argument, the defendants rely on the statutory language “[A]ny action against a licensed physician . . . for malpractice . . . shall be brought only in the county in which the alleged act or omission occurred.” They argue that under this statute, venue can be only in Rankin County, as all acts of alleged negligence occurred in that county. However, the venue statute in effect when the Maloufs filed their original complaint does not contain a subsection specific to malpractice actions. Dr. Fredericks concedes venue was proper in Hinds County at the time the original complaint was filed. The language in effect at the time the Maloufs filed their amended complaint does not support the defendants’ position that venue cannot be waived. The parties entered into an agreed scheduling order by which a June 28, 2007, deadline governed all pretrial motions. As the proponent of the motion, the defendants had the burden to timely pursue their motion before the June 28, 2007, deadline. Furthermore, the defendants actively participated in discovery for three years without pursuing their motion or seeking a ruling from the trial court. Venue is an affirmative right that generally may be waived or abandoned. Therefore, the trial judge did not abuse her discretion when she found the defendants had waived their right to contest venue by waiting three years to pursue their motion, and in doing so, waiting until two weeks before the date set for trial.


    Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court