Zeonia Williams v. Deborah Skelton ( 2006 )


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  •                   IN THE SUPREME COURT OF MISSISSIPPI
    NO. 2007-CT-00095-SCT
    ZEONIA WILLIAMS, INDIVIDUALLY AND ON
    BEHALF OF THE WRONGFUL DEATH HEIRS OF
    ANTHONY WILLIAMS, DECEASED
    v.
    DEBORAH SKELTON, M.D. AND STEVEN J.
    PATTERSON, M.D.
    ON WRIT OF CERTIORARI
    DATE OF JUDGMENT:                      12/13/2006
    TRIAL JUDGE:                           HON. W. SWAN YERGER
    COURT FROM WHICH APPEALED:             HINDS COUNTY CIRCUIT COURT
    ATTORNEY FOR APPELLANT:                D. L. JONES, JR.
    ATTORNEYS FOR APPELLEES:               KRISTI D. KENNEDY
    WHITMAN B. JOHNSON, III
    REBECCA LEE WIGGS
    NATURE OF THE CASE:                    CIVIL - WRONGFUL DEATH
    DISPOSITION:                           THE JUDGMENT OF THE COURT OF
    APPEALS IS AFFIRMED. THE JUDGMENT
    OF THE CIRCUIT COURT FOR THE FIRST
    JUDICIAL DISTRICT OF HINDS COUNTY IS
    AFFIRMED AND THIS CASE IS DISMISSED
    WITHOUT PREJUDICE - 04/09/2009
    MOTION FOR REHEARING FILED:
    MANDATE ISSUED:
    EN BANC.
    CARLSON, PRESIDING JUSTICE, FOR THE COURT:
    ¶1.   Deborah Skelton, M.D., and Steven J. Patterson, M.D., were sued for medical
    negligence as a result of the death of Anthony Williams. After suit was commenced by
    Zeonia Williams, individually and on behalf of Anthony Williams’s wrongful-death
    beneficiaries, Drs. Skelton and Patterson moved for a dismissal of the case, asserting that
    Zeonia Williams had failed to comply with the sixty-day notice requirement under
    Mississippi Code Annotated Section 15-1-36(15) (Rev. 2003). In due course, the trial court
    granted the motion to dismiss.1 Williams appealed, arguing that, because the defendants
    were not served with a copy of the complaint and summons until more than sixty days after
    notice of the intention to sue had been received by the defendants, she had complied with the
    statutory provisions. Further, Williams asserts that, alternatively, even if the suit was
    properly dismissed, she is entitled to refile.2 The Court of Appeals affirmed, and we granted
    certiorari only to clarify the manner of dismissal for failure to comply with Section 15-1-
    36(15).
    FACTS AND PROCEDURAL HISTORY
    ¶2.    Anthony Williams died on September 24, 2003, while undergoing treatment from Dr.
    Deborah Skelton and Dr. Steven J. Patterson. Zeonia Williams (Williams), individually and
    on behalf of the wrongful-death beneficiaries of Anthony Williams, retained counsel and
    1
    In actuality, the trial court granted a traditionally filed motion for summary
    judgment, or alternatively, motion to dismiss. We take this opportunity to mention that
    whenever such a motion is granted concerning section 15-1-36(15), the trial judge should
    grant the alternative motion to dismiss so that the dismissal may be without prejudice, as
    discussed, infra.
    2
    The Court of Appeals did not rule on this issue stating: “Our review of the record
    indicates that the trial judge specifically declined to rule within the judgment of dismissal
    with regard to the propriety of a subsequent suit. Therefore, without a trial court ruling on
    this issue, the matter is not properly before this Court at this time.” Williams v. Skelton,
    2008 Miss. App. LEXIS 250, *3, ¶4 n.1 (Miss. Ct. App. Apr. 22, 2008).
    2
    decided to pursue a wrongful-death claim. On June 15, 2005, Drs. Skelton and Patterson
    were notified by letter of Williams’s intent to file suit against them. On July 22, 2005, less
    than sixty days later, a complaint was filed in the Circuit Court of Hinds County. Process
    was served on October 19, 2005, and Drs. Skelton and Patterson timely answered.
    Thereafter, Dr. Skelton filed her Motion to Dismiss or for Summary Judgment, and Dr.
    Patterson filed his Motion for Summary Judgment or Motion to Dismiss and Joinder in
    Defendant Deborah Skelton, M.D.’s Motion to Dismiss or for Summary Judgment. The crux
    of these motions was that Williams had failed to comply with the sixty-day-notice
    requirement found in Mississippi Code Annotated Section 15-1-36(15) (Rev. 2003).
    Williams filed an amended complaint on November 9, 2005. On December 14, 2006, the
    Circuit Court for the First Judicial District of Hinds County, Judge W. Swan Yerger
    presiding, granted the motions and dismissed Williams’s action for failure to satisfy the
    notice requirements of section 15-1-36(15).
    ¶3.    On December 21, 2006, Williams timely appealed, and the case was assigned to the
    Court of Appeals. The Court of Appeals affirmed the Hinds County Circuit Court’s
    judgment of dismissal on April 22, 2008. Williams v. Skelton, 2008 Miss. App. LEXIS 250
    (Miss. Ct. App. Apr. 22, 2008). Williams filed a motion for rehearing, which the Court of
    Appeals denied. Williams v. Skelton, 2008 Miss. App. LEXIS 505 (Miss. Ct. App. Aug. 19,
    2008). Thus, Williams subsequently filed her petition for writ of certiorari, and this Court
    granted the petition on November 12, 2008.
    3
    DISCUSSION
    ¶4.    Before we address the issue which caused us to grant certiorari, we must address an
    issue raised for the first time via Williams’s petition for writ of certiorari, whether section
    15-1-36(15) is unconstitutional. Stated differently, once the defendants filed in the trial court
    their respective motions to dismiss or for summary judgment on the basis of noncompliance
    with section 15-1-36(15), Williams, in her separate responses to these motions, failed to raise
    the issue of the unconstitutionality of this statute. Since the constitutionality issue was not
    raised, the trial judge did not address this issue. After appealing the trial court’s dismissal
    of this case, Williams did not assert in her appellate brief that section 15-1-36(15) is
    unconstitutional. Since the issue was not before it, the Court of Appeals did not address this
    issue. After the Court of Appeals issued a judgment adverse to Williams, she filed a motion
    for rehearing, again failing to raise the constitutionality issue. In her petition for writ of
    certiorari, Williams for the first time asserted that section 15-1-36(15) was unconstitutional
    as to the sixty-day-notice requirement.
    ¶5.    Since the issue of the constitutionality of section 15-1-36(15) was raised for the first
    time via her petition for writ of certiorari, Williams, through counsel, filed her Motion
    Notifying Attorney General of Challenge to Validity of Statute. Thereafter, Drs. Skelton and
    Patterson, through counsel, filed their Response to Petitioners’ Motion Notifying Attorney
    General of Challenge to Validity of Statute. The Attorney General filed a Notice of Joinder
    in which he joined and adopted, in toto, the arguments of Drs. Skelton and Patterson in
    asserting that Williams is procedurally barred from attacking the constitutionality of the
    4
    statute; and that, alternatively, the unconstitutionality argument is without merit. Finally,
    Williams, through counsel, filed her Response to Notice of Joinder of the Attorney General
    of Mississippi.
    ¶6.    This Court finds that Williams’s assertion that section 15-1-36(15) is unconstitutional
    is procedurally barred because she raises this issue for the first time on appeal, and she did
    not give the trial court the opportunity to rule on this issue. In Alexander v. Daniel, 
    904 So. 2d
    172, 183 (Miss. 2005), we stated
    We have been consistent in holding that we need not consider matters raised
    for the first time on appeal, which practice would have the practical effect of
    depriving the trial court of the opportunity to first rule on the issue, so that we
    can then review such trial court ruling under the appropriate standard of
    review. See, e.g., Triplett v. Mayor & Aldermen of Vicksburg, 
    758 So. 2d 399
    , 401 (Miss. 2000) (citing Shaw v. Shaw, 
    603 So. 2d 287
    , 292 (Miss.
    1992)).
    Alexander, 
    904 So. 2d
    at 183.
    ¶7.    Turning now to the issue on which we granted certiorari, Mississippi Code Annotated
    Section 15-1-36(15) requires that “[n]o action based upon the health care provider's
    professional negligence may be begun unless the defendant has been given at least sixty (60)
    days' prior written notice of the intention to begin the action.” See Miss. Code Ann. § 15-1-
    36(15) (Rev. 2003). We agree with the Court of Appeals that this Court “has required strict
    compliance with the mandates of Mississippi Code Annotated Section 15-1-36 such that
    failure to satisfy the pre-suit notice requirement mandates dismissal of the plaintiff’s
    complaint.” Williams, 2008 Miss. App. LEXIS 250 at *4, ¶5 (citations omitted). We thus
    affirm the Court of Appeals’ judgment in today’s case. It must be clarified, however, that
    5
    dismissal for failure to provide notice under this statute ordinarily should be without
    prejudice. Arceo v. Tolliver, 
    949 So. 2d 691
    , 698 (Miss. 2006). Williams’s complaint
    should have been dismissed without prejudice for her failure to comply with the pre-suit
    requirements. Additionally, we note that while the trial court did not use the words “without
    prejudice” in its judgment of dismissal, the trial court did state in its judgment, inter alia, that
    “any subsequent suit being filed in this Court by [Williams] arising from the death of
    Anthony Williams must have attached to it a copy of this Judgment of Dismissal . . . .”
    CONCLUSION
    ¶8.    Although we affirm the trial court and the Court of Appeals, we granted certiorari to
    reiterate that dismissal for failure to comply with the pre-suit requirements of Mississippi
    Code Annotated Section 15-1-36 should be without prejudice.
    ¶9.  THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE
    JUDGMENT OF THE CIRCUIT COURT FOR THE FIRST JUDICIAL DISTRICT
    OF HINDS COUNTY IS AFFIRMED AND THIS CASE IS DISMISSED WITHOUT
    PREJUDICE.
    WALLER, C.J., DICKINSON, RANDOLPH, LAMAR AND PIERCE, JJ.,
    CONCUR. GRAVES, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION
    JOINED BY KITCHENS, J. KITCHENS, J., DISSENTS WITH SEPARATE
    WRITTEN OPINION JOINED BY GRAVES, P.J.     CHANDLER, J., NOT
    PARTICIPATING.
    GRAVES, PRESIDING JUSTICE, DISSENTING:
    ¶10.   The majority opinion indicates that certiorari was granted “only to clarify the manner
    of dismissal for failure to comply with Section 15-1-36(15).” However, there is no order or
    anything else which indicates that certiorari was granted solely for that purpose. Because I
    6
    would find that Mississippi Code Annotated section 15-1-36(15) is unconstitutional or,
    alternatively, only requires substantial compliance, I respectfully dissent. Moreover, I write
    to reiterate my opinion on this issue as previously set out in Thomas v. Warden, 2008 Miss.
    LEXIS 600 (Dec. 11, 2008), reh’g denied (Feb. 12, 2009), and Arceo v. Tolliver, 
    949 So. 2d 691
    (Miss. 2006).
    ¶11.   Section 15-1-36(15), states:
    No action based upon the health care provider’s professional negligence
    may be begun unless the defendant has been given at least sixty (60) days’
    prior written notice of the intention to begin the action. No particular form of
    notice is required, but it shall notify the defendant of the legal basis of the
    claim and the type of loss sustained, including with specificity the nature of the
    injuries suffered. If the notice is served within sixty (60) days prior to the
    expiration of the applicable statute of limitations, the time for the
    commencement of the action shall be extended sixty (60) days from the service
    of the notice for said health care providers and others. This subsection shall
    not be applicable with respect to any defendant whose name is unknown to the
    plaintiff at the time of filing the complaint and who is identified therein by a
    fictitious name.
    Miss. Code Ann. §15-1-36(15) (Rev. 2003).
    ¶12.   In Arceo, this Court found that Section 15-1-36(15) should be strictly construed and
    that Tolliver’s claim should have been dismissed because no notice was provided under the
    statute.   Arceo v. Tolliver, 
    949 So. 2d 691
    . However, this Court further found that the
    constitutionality of this section was not raised on appeal and it was therefore not addressed.
    Arceo v. Tolliver, 
    949 So. 2d 691
    . Arceo is distinguishable because, in the instant case, the
    constitutionality of the section has been raised.
    7
    ¶13.   Williams asserts that Mississippi Code Annotated section 15-1-36(15) is
    unconstitutional. Specifically, Williams asserts that 15-1-36(15) conflicts with Rule 3 of the
    Mississippi Rules of Civil Procedure, which governs the commencement of civil actions and
    requires only that a complaint be filed with the appropriate court.
    ¶14.   “[T]he inherent power of this Court to promulgate procedural rules emanates from the
    fundamental constitutional concept of the separation of powers and the vesting of judicial
    powers in the courts.” Claypool v. Mladineo, 
    724 So. 2d 373
    , 380 (Miss. 1998). See also
    Newell v. State, 
    308 So. 2d 71
    , 76 (Miss. 1975). Section 144 of the Mississippi Constitution
    says: “The judicial power of the State shall be vested in a Supreme Court and such other courts as
    are provided for in this Constitution.” Miss. Const. art. 6, § 144. There is no notice requirement
    in the judicial rules.
    ¶15.   Section 15-1-36(15) conflicts with section 24 of article six of the Mississippi
    Constitution, which guarantees “[a]ll courts shall be open . . .           and justice shall be
    administered without sale, denial, or delay,” because the sixty-day notice requirement
    impedes or delays citizens’ access to courts.3 A statute requiring a party to wait sixty days
    after providing notice constitutes a delay. Further, Williams has a First Amendment right to
    seek a redress of her grievances in a court of law. U.S. Const. amend. I.
    3
    Miss. Const. art. 3, §24.
    8
    ¶16.   I would find that section 15-1-36(15) is a procedural statute requiring sixty days’
    notice and that this Court’s finding in Wimley v. Reid, 
    991 So. 2d 135
    (Miss. 2008), as to
    section 11-1-58, is likewise applicable here. In Wimley, this Court found:
    [W]e are unable to ignore the constitutional imperative that the Legislature
    refrain from promulgating procedural statutes which require dismissal of a
    complaint, and particularly a complaint filed in full compliance with the
    Mississippi Rules of Civil Procedure. We find Section 11-1-58's requirement
    that a complaint be accompanied by a certificate or waiver to be just such a
    procedural statute.
    
    Id. at 138. ¶17.
      Further, the dissent in Arceo correctly addressed the implications of section 15-1-
    36(15):
    The law, as interpreted by the majority, definitely is not in keeping with
    this principle [of freedom of access to the courts], but is in fact irrational,
    illogical, and unfair to those Mississippians seeking a redress of their
    grievance in a medical malpractice claim. Furthermore, the application of the
    pre-suit notice requirement, as interpreted by the majority, unnecessarily
    restricts access to the courts. The constitutional right of notice to the
    defendants was satisfied when Myrtis Tolliver filed her complaint. The
    implementation and enforcement of an additional notice requirement, without
    any other method to cure, is inequitable, unconstitutional, and deprives this
    plaintiff of her day in court.
    
    Arceo, 949 So. 2d at 699
    , 700 (Graves, J., dissenting).
    ¶18.   For these reasons, I find that section 15-1-36(15) is unconstitutional. However,
    assuming arguendo that the statute is constitutional, then substantial compliance is the
    appropriate standard.
    ¶19.   Williams asserts that she complied with the notice provision, because the defendants
    were not served with the complaint until more than sixty days after they had received notice
    9
    of her intention to sue. Williams further asserts that she filed an amended complaint more
    than sixty days after the notice of her intention to sue.
    ¶20.   In Arceo, this Court said specifically, as to strict versus substantial compliance:
    However, with all due respect to the dissent, today’s case does not involve a
    question of whether the plaintiff complied with section 15-1-36(15) by
    submitting a notice containing information which was substantial enough to
    be in compliance with the statute . . . . Instead, we are squarely confronted with
    a situation where the plaintiff, in filing an original complaint, a first amended
    complaint, and a second amended complaint, wholly failed to submit any
    notice required by the statute.
    
    Arceo, 949 So. 2d at 697
    .
    ¶21.   In the instant case, notice was provided, thus allowing an inquiry of whether such
    notice substantially complied with the requirements of the statute.
    ¶22.   Based on the language quoted herein from Arceo regarding substantial compliance,
    the wording of the statute and the fact that, here, notice was indeed provided, Williams
    substantially complied.
    ¶23.   For the reasons stated herein, I would find that this matter should be reversed and
    remanded to the trial court. Therefore, I respectfully dissent.
    KITCHENS, J., JOINS THIS OPINION.
    KITCHENS, JUSTICE, DISSENTING:
    ¶24.   Although I fully concur with Presiding Justice Graves’s excellent dissent, I write
    separately to express my concern with the majority opinion’s language that “dismissal for
    failure to provide notice under this statute ordinarily should be without prejudice.”
    (Emphasis added.) This statement suggests that there may be cases in which failure to
    10
    comply strictly with the pre-suit notice requirement of Section 15-1-36(15) would require
    dismissal with prejudice. Because I can imagine no circumstances that would warrant the
    irrevocable termination of what could be a meritorious civil claim for failure to jump through
    an innocuous procedural hoop, I respectfully dissent.
    GRAVES, P.J., JOINS THIS OPINION.
    11