Fowler v. White, et al.
| Docket Number: | 2011-CA-00286-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 03-29-2012 Opinion Author: Chandler, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Wrongful death - Motion for reconsideration - Section 15-1-36(15) - Presuit notice requirement - M.R.C.P. 5 - Presumption of delivery - M.R.C.P. 59(e) - Manifest injustice - Waiver of affirmative defense Judge(s) Concurring: Waller, C.J., Carlson and Dickinson, P.JJ., Randolph, Lamar, Pierce and King, JJ. Non Participating Judge(s): Kitchens, J. Procedural History: Dismissal Nature of the Case: CIVIL - WRONGFUL DEATH |
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| Trial Court: |
Date of Trial Judgment: 11-08-2010 Appealed from: Lee County Circuit Court Judge: James L. Roberts Disposition: Dismissed the wrongful-death action for failure to timely serve presuit notice on the defendants. Case Number: CV09-098(R)(L) |
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| Note: | Motion to Supplement the Record filed by the Appellees is denied. See opinion of this Court handed down this date at page 11, paragraph 21. | |
| Party Name: | Attorney Name: | |||
| Appellant: | Jimmy Steven Fowler, Jr., Individually and for and on Behalf of the Wrongful Death Beneficiaries of Jimmy Steven Fowler, Deceased |
STEVEN J. IRWIN |
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| Appellee: | John Paul White, M.D., Marilyn Lehman, R.N. and The Sanctuary Hospice House, Inc. | MARGARET SAMS GRATZ, L. F. SAMS, JR., JOHN G. WHEELER |
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| Topic: | Wrongful death - Motion for reconsideration - Section 15-1-36(15) - Presuit notice requirement - M.R.C.P. 5 - Presumption of delivery - M.R.C.P. 59(e) - Manifest injustice - Waiver of affirmative defense |
| Summary of the Facts: | Jimmy Fowler Jr. filed a wrongful death complaint on August 4, 2009. He alleged that his father, Jimmy Steven Fowler, had congestive heart failure and chronic obstructive pulmonary disease, and was maintained on multiple medications. Four months prior to Jimmy’s death on January 31, 2007, he was admitted as a resident to The Sanctuary Hospice House. The complaint alleged that Sanctuary had committed medical negligence by discontinuing Jimmy’s medication and placing him on high doses of pain medication and sedatives, which proximately caused his death from morphine neurotoxicity and benzodiazepine toxicity. The complaint further alleged that John Paul White, M.D. and Marilyn Lehman, R.N., the clinical coordinator for The Sanctuary Hospice House, had provided medically negligent care to Jimmy. Fowler did not serve the complaint on the defendants. Instead, on October 16, 2009, he filed a first amended complaint that added Fred C. Sandlin Jr. and Fred’s Rexall Pharmacy as defendants. On November 19, 2009, Dr. White answered and filed a motion to dismiss due to the lack of sixty days’ presuit notice. Lehman and The Sanctuary Hospice House also raised that defense in their answers. On November 23, 2009, Lehman and The Sanctuary Hospice House filed a motion for summary judgment on the basis of lack of sixty days’ presuit notice. Dr. White filed a motion for summary judgment on the same ground on December 9, 2009. The trial court found that Fowler had not presented sufficient evidence to support a presumption under M.R.C.P. 5 that the May 6, 2010, presuit notice had been delivered. Fowler appeals. |
| Summary of Opinion Analysis: | Issue 1: Motion for reconsideration The Court requires strict compliance with section 15-1-36(15). Failure to satisfy the presuit-notice requirement mandates dismissal without prejudice. The mechanics of M.R.C.P. 5 control the service of presuit notice under section 15-1-36(15). The rule provides, in pertinent 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.” There is a presumption that mail deposited, postage prepaid and properly addressed is timely delivered to the person addressed. Once the presumption is established, the burden shifts to the party denying receipt to present evidence to rebut the presumption. Fowler argues that the trial court erred by finding he had not submitted sufficient evidence to raise a presumption of delivery. The trial court held that the affidavit submitted by Fowler did not raise a presumption of delivery because it did not specify that a paralegal for Fowler’s counsel had mailed presuit notice in Fowler’s case as opposed to counsel’s other cases against the defendants. Certainly, the trial court’s decision was supported by substantial evidence; it was undisputed that Fowler’s counsel had prepared presuit-notice letters dated May 6, 2008, in several other cases against Sanctuary, and the paralegal’s affidavit was ambiguous as to whether she had mailed those letters as opposed to the letters in Fowler’s case. Fowler argues that the trial court erred by not considering his counsel’s statements at the hearing that he specifically recalled dictating the Fowler letters, giving them to the paralegal to type, proofing them, signing them, returning them to the paralegal for mailing, and watching the paralegal deposit them in the mailbox. However, the statements of Fowler’s counsel were not sworn testimony, and the trial court had no obligation to consider them in making its ruling. Fowler further argues that the trial court erred by denying his motion for reconsideration. Under M.R.C.P. 59(e), a party may only obtain relief upon showing: an intervening change in controlling law, availability of new evidence not previously available, or the need to correct a clear error of law or to prevent manifest injustice. Fowler argues that he sought Rule 59(e) relief to prevent a manifest injustice created by the trial court’s “misinterpretation” of the paralegal’s affidavit. The unexcused failure to present evidence which is available at the time summary judgment is under consideration constituted a valid basis for denying a motion to reconsider. Here, the ruling was within the trial court’s discretion, because the evidence had been available to Fowler from the time Sanctuary filed the dispositive motions in November 2009, until November 8, 2010, when the trial court entered its ruling on the motions to dismiss. Issue 2: Waiver Fowler argues that Sanctuary waived the affirmative defense of lack of presuit notice by failing to pursue the defense while actively participating in the litigation. Because Fowler raises this issue for the first time on appeal, it is procedurally barred. |
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