Estate of Pope v. Delta Health Group, Inc.
| Docket Number: | 2009-CA-01988-SCT | |
| Oral Argument: | 01-24-2011 | |
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| Supreme Court: | Opinion Link Opinion Date: 03-10-2011 Opinion Author: Kitchens, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Personal injury - Dismissal with prejudice - Subsequent action Judge(s) Concurring: Waller, C.J., Carlson and Dickinson, P.JJ., Randolph, Lamar, Chandler and Pierce, JJ. Non Participating Judge(s): King, J. Procedural History: Dismissal Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 11-09-2009 Appealed from: Bolivar County Circuit Court Judge: Albert B. Smith, III Disposition: On November 9, 2009, the trial judge entered an order granting Delta's motion to dismiss. Case Number: 2009-0048 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | The Estate of Ellen Pope, by and through James Payne, Individually and as the Personal Representative for the use and benefit of the Estate of Ellen Pope, and on behalf of and for the use and benefit of the wrongful death beneficiaries of Ellen Pope |
ANTHONY LANCE REINS, MARY JANE PERRY |
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| Appellee: | Delta Health Group, Inc. | LYNDA CLOWER CARTER, NICOLE COLLINS HUFFMAN | ||
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| Topic: | Personal injury - Dismissal with prejudice - Subsequent action |
| Summary of the Facts: | Ellen Pope died while a resident of the Shelby Nursing and Rehabilitation Center. Her great-nephew, James Payne, filed a wrongful death suit against Shelby, Delta Heath Group, Inc., Pensacola Health Group, Inc., and a number of individuals. Payne filed the suit as the personal representative of his great-aunt and in his individual capacity as a wrongful death beneficiary. However, as a great-nephew, Payne was not a wrongful death beneficiary as contemplated by the wrongful death statute, section 11-7-13. Moreover, when Payne filed the suit, he had not yet been appointed administrator of his great-aunt’s estate. Payne was not appointed administrator until seven and a half months after filing the wrongful death action. The defendants filed a motion to dismiss, or in the alternative, for summary judgment, arguing that Payne lacked standing to bring the suit. Payne filed a motion to substitute himself as administrator of his great-aunt’s estate under M.R.C.P. 17(a). The trial court granted Payne’s motion to substitute and denied the defendants’ motion to dismiss. The Supreme Court granted the defendants’ petition for interlocutory appeal and reversed the trial judge’s denial of the defendants’ motion to dismiss. The decision did not indicate whether the dismissal should have been with or without prejudice, but it remanded the case to the trial court. On remand, the trial judge dismissed the case with prejudice and entered a final judgment in favor of the defendants. Payne did not appeal but later attempted to revive the wrongful death action by filing another complaint. The only material difference between this second complaint and the original complaint was that Payne did not sue Shelby or the original individual defendants. Payne instead sued two named entities, Delta Health Group, Inc. and Pensacola Health Trust, Inc., and ten unnamed entities. Delta filed a motion to dismiss. After the plaintiff’s response had been filed, Pensacola filed a motion to dismiss for deficient service of process. In the alternative, Pensacola moved to join Delta’s motion. The court granted Delta’s motion to dismiss. The order never mentioned Pensacola, and the parties concede that Pensacola is not a party to this appeal because it never was served properly with the complaint. |
| Summary of Opinion Analysis: | In dismissing the second complaint, the trial judge relied, in part, on the fact that the original complaint had been dismissed with prejudice. The dismissal with prejudice of the original complaint, whether right or wrong, remained unchallenged because the plaintiff never appealed from that order. A dismissal with prejudice bars the right to bring or maintain an action on the same claim or cause. Thus, the plaintiff was barred from bringing a subsequent action after the original complaint was dismissed with prejudice. The plaintiff argues that the general savings statute should apply. However, this argument should have been made via an appeal from the dismissal of the original suit. |
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