IN THE SUPREME COURT OF MISSISSIPPI NO CA-01079

Transcription

1 E-Filed Document Oct :38: CA COA Pages: 12 IN THE SUPREME COURT OF MISSISSIPPI NO CA THE UNIVERSITY OF MISSISSIPPI MEDICAL CENTER APPELLANT VS. KIM HAMPTON, INDIVIDUALLY, AND ON BEHALF OF KIMREICK SMITH, DECEASED, ANDTHE WRONGFUL DEATH BENEFICIARIES OF KIMRICK SMITH APPELLEES APPELLEE S MOTION FOR REHEARING Crystal Wise Martin Miss. Bar No Suzanne Keys Miss. Bar No PRECIOUS MARTIN & ASSOCIATES 821 N. Congress Street P.O. Box 373 Jackson, Miss T: Attorneys for Appellant

2 TABLE OF CONTENTS Table of Contents... ii Table of Authorities... iii Standard of Review... 1 Argument... 2 Conclusion... 8 Certificate of Service... 9 ii

3 TABLE OF AUTHORITIES Farmer v. Bolivar County, 910 So. 2d 671 (Miss.Ct.App. 2005).4 Fortune v. Lee County Bd. of Supervisors, 725 So.2d 747 (Miss. 1998) 5 Horton v. Ms Credit, 926 So.2d 167 (Miss. 2006) 7 Hudson v. Moon, 732 So.2d 927 (Miss. 1999) 5 Ill. Cent. R.R. v. McDaniel, 951 So 2d 523 (Miss. 2006)..1 Jones v. Baptist Mem. Hosp.-Golden Triangle, Inc., 735 So.2d 993 (Miss. 1999) 4 Kilgore v. Barnes, 508 So.2d 1042 (Miss. 1987)..4 McClain v. State, 625 So.2d 774 (Miss. 1993).1 Page v. University of Southern Mississippi, 878 So.2d 1003 (Miss. 2004).4 Roberts v. New Albany Separate School District, 813 So.2d 729 (Miss.2002).4 State ex rel. Moore v. Molpus, 578 So.2d 624 (Miss. 1991) 5 Tie-Reace Hollingsworth v. City of Laurel, 808 So.2d 950 (Miss. 2002) 3 Upchurch Plumbing, Inc. v. Greenwood Utils. Comm'n, 964 So. 2d 1100 (Miss. 2007).1 MISSISSIPPI RULES OF APPELLATE PROCEDURE MRAP iii

4 Appellee Kim Hampton, on behalf of Kimrick Smith, deceased, and the wrongful death beneficiaries of Kimrick Smith, by and through her undersigned counsel and pursuant to Rule 40 of the Mississippi Rules of Appellate Procedure, moves this Court to grant a rehearing regarding its decision handed down on October 11, 2016, entitled The University of Mississippi Medical Center v. Kim Hampton, Individually and on behalf of Kimrick Smith, deceased, and the wrongful death beneficiaries of Kimrick Smith, No CA COA wherein the Court reversed the Trial Court s judgment in favor of the Appellee. Rehearing is proper because the factual and legal conclusions of the Court are in error, the case must be reheard. STANDARD OF REVIEW A motion for rehearing is not intended to afford an opportunity for a mere repetition of the argument already considered by the court. Miss. R. App. Proc. 40(a). Rather, [t]he motion for rehearing should be used to call attention to specific errors of law or fact which the opinion is thought to contain[.] Id. A party seeking rehearing under Rule 40 shall state with particularity the points of law or fact which, in the opinion of the movant, the court has overlooked or misapprehended.... Id. Since the Trial Court sat without a jury on this Torts Claims Act matter, his decision is to be granted the same deference as a chancery court judge which is the abuse of discretion standard. Ill. Cent. R.R. v. McDaniel, 951 So 2d 523, 526 (Miss. 2006) Thus, a trial judge s findings of fact will not be disturbed on appeal unless they are shown to be manifestly wrong or clearly erroneous. Upchurch Plumbing, Inc. v. Greenwood Utils. Comm'n, 964 So. 2d 1100, (Miss. 2007). As the fact-finder, the trial judge is solely responsible for resolving the weight and credibility of the evidence. E.g., McClain v. State, 625 So.2d 774, 778 (Miss. 1993). It is his responsibility, and his alone, to resolve any conflict or inconsistency in the evidence. Id. 1

5 ARGUMENT I. Ms. Hampton timely filed her complaint under the statute in effect at the time. The facts giving rise to this action occurred on November of It is undisputed that Ms. Hampton hand delivered the Notice of Claim letter on November 7 th. At that time, the Torts Claims Act statute read as follows concerning the deadlines for filing suit: After the tolling period has expired, the claimant shall then have an additional ninety (90) days to file any action against the governmental entity served with proper claim notice. However, should the governmental entity deny any such claim, then the additional ninety (90) days during which the claimant may file an action shall begin to run upon the claimant s receipt of notice of denial of claim from the governmental entity.(emphasis added) Ms. Stat (3) This statute has been subject to various amendments within the past 15 years. In 1993, it was amended to clarify that claimants must exhaust administrative remedies. In that version, there was no provision for the timing of filing after a notice of claim letter and no provision concerning what effect a denial of the claim might be. In 1999, the legislature added the 120 days tolling provision for political subdivisions and added a provision when the government entity denies the claim, namely the language about calculating the deadline for filing as 90 days from the receipt of a denial of claim notice. In 2000, the legislature added a savings clause for minors and persons with disabilities but it did not change the language concerning what happens when a government agency sends a denial of claim letter. In 2002, the legislature amended Ms. Stat , to revise the savings clause but continued to include the however. sentence cited above concerning the computation of time to file an action when a denial of claim letter is sent. 2

6 The plain language of the statute in effect then in November 2010 provided that a complaint pursuant to this statute may be filed either a) Within 90 days after the expiration of the 95 day tolling period if there had been no government response. OR b) Within 90 days after a response from government entity denying the claim. Thus, a clear reading of the statute as it existed in November 2010 indicated that the response from the governmental entity completely controls when to commence litigation. UMMC could decide to deny a Notice of Claim the day after receipt which would trigger a 90 day window to file. Or, UMMC could deny the claim two months later when again; the 90 day window would begin. Indeed as the statute read, should a plaintiff file suit, and then receive a denial letter, the plaintiff could face the sanction of dismissal for early filing. Admittedly, was amended in July of 2012 to delete the however sentence and replace it with: No action whatsoever may be maintained by the claimant until the claimant receives a notice of denial of claim or the tolling period expires, whichever comes first, after which the claimant has an addition ninety (90) days to file suit However, this statute was enacted after the cause of action had accrued in this case, and the complaint had been filed. In deciding this case, this Court erroneously applied the July 2012 amended statute retroactively. The Mississippi Supreme Court has stated that it is not the practice of this Court to apply statutes affecting an individual s substantive rights, retroactively. In Tie-Reace Hollingsworth v. City of Laurel, 808 So.2d 950 (Miss. 2002) the Supreme Court specifically addressed the issue of retroactivity of the Torts Claims Act provisions. It cited with approval 3

7 Jones v. Baptist Mem. Hosp.-Golden Triangle, Inc., 735 So.2d 993 (Miss. 1999), which held that if a statute is to apply "effective from and after passage," it is not to apply to causes of action that have accrued prior to the passage of the statute. The only narrow exception to this rule is found in Kilgore v. Barnes, 508 So.2d 1042 (Miss. 1987) where the Court held that where an amended statute remedially lengthens a statute of limitations, it will apply the amendment to existing causes. In Hollingsworth such was the case, and the court applied the newer version of the statute, since it expanded the time for filing. Similarly in Roberts v. New Albany Separate School District, 813 So.2d 729 (Miss.2002), the Court applied a newer version of the statute retroactively when it extended the time for filing. However, the Mississippi Supreme Court has not altered its original ruling in Hollingsworth, that statutes affecting substantive rights, such as the right to file suit here, should not be applied retroactively to cut off such rights. Moreover, this Court mistakenly applied a hypothetical example from Page v. University of Southern Mississippi, 878 So.2d 1003 (Miss. 2004) as controlling in this case. However, the example in Page was mere dicta because it did not embody the resolution of the case. Page dealt with a case where a notice of claim was sent within the one year statute of limitations and the issue became how much time Plaintiff had after that to file suit. There was no denial of claim letter sent by the Defendant in that case. Similarly, in Farmer v. Bolivar County, 910 So. 2d 671 (Miss.Ct.App. 2005) this Court dealt only with how to calculate a filing deadline when the notice of claim letter was received within the one year statute of limitations. Again, no denial of claim letter was involved and the Court applied the holding of Page, not dicta, in arriving at its opinion. Moreover, it is patently unfair to require a pro se litigant not only to consult the current statute, but to also read case law, and then determine from dicta what course of action to take. In 4

8 fact, lawyers themselves have had to bring cases to the appellate courts to get clarification of the application of this statute. Finally, the legislature never expressed an intent to have the July 2012 amendment applied retroactively. In Hudson v. Moon, 732 So.2d 927, (Miss. 1999) the Supreme Court said that it has continuously followed the rule that statutes will be construed to have a prospective operation only, unless a contrary intention is manifested by the clearest and most positive expression. See also Fortune v. Lee County Bd. of Supervisors, 725 So.2d 747 (Miss. 1998); State ex rel. Moore v. Molpus, 578 So.2d 624 (Miss. 1991). The 2012 bill amending the statute makes no representation that the legislature intended the statute to be applied retroactively. In fact, at the end, it specifically adds Section 2 [Effective Date] This act shall take effect and be in force from and after July 1, clear evidence of its intent to be applied prospectively. Because the Court should have applied the version of (3) in effect at the time, and not applied dicta from Page, the Court should reverse and affirm the Trial Court s decision in this case. II. The Court has overlooked key facts that relate to the waiver of the Statute of Limitations Defense in this case Kimrick Smith died on November 8, 2010 from a stab wound that punctured his heart that was not discovered by the staff of UMMC. His mother, Kim Hampton, only learned of this when she spoke to the doctor who did the autopsy on November 11, Thereafter, she tried to find an attorney to represent her and was assisted by Attorney Gary Silverman, who had hand delivered a Notice of Claim letter to the executive director of UMMC on November 7,

9 However, Mr. Silverman took no further action on her behalf and Ms. Hampton continued to look for an attorney to pursue the case. UMC responded to the Notice of Claim letter on February 28, 2012, denying the claim. Thereafter, still having found no lawyer, Ms. Hampton filed suit pro se on May 29, 2012 ( the day after Memorial Day). Ms. Hampton continued to represent herself until she found counsel in February of During that year, UMMC was served and filed its answer. In addition: a. UMMC caused a subpoena to be issued to Marion County DA regarding the criminal file for the stabbing on September 12, (This information would shed no light on when Ms. Hampton discovered her claim.) b. UMMC filed a Motion to Compel on October 15, 2012 to compel the Marion County DA to produce the criminal file regarding the stabbing (Docket #5) and set a hearing on the matter c. UMMC obtained from the Court an Order Compelling the production of the criminal file on October 22, 2012 (Docket #7) d. UMMC propounded written discovery to Ms. Hampton, including requests for documents and 25 interrogatories none of which pertained to when she may have first learned of her probable cause of action or to the issue of the statute of limitations. Instead said discovery asked for witnesses, Kimrick s marital history, Kimrick s medical history, any lawsuits Kimrick had filed, details of the claimed negligence, specifics of damages and the like. e. UMMC then filed a Motion to Compel Ms. Hampton to answer the discovery on November 26, 2012, attended a hearing on the Motion to Compel Discovery responses on December 10, 2012 (Docket #10) and obtained an Order. f. Ms. Hampton, while still acting pro se answered the discovery on December 22, g. After receiving Ms. Hampton s answers to discovery, UMMC re-noticed Ms. Hampton s deposition on January 14, 2013 and again on February 4, h. UMMC then filed a Motion to Dismiss based on her failure to participate in discovery on February 15, 2013 (Docket #16) (the motion made no mention of the statute of limitations being expired) i. When Ms. Hampton did secure representation, UMMC responded to Hampton s first set of interrogatories and requests for production of documents on March 26, j. UMMC still pressed its Motion to Dismiss for Hampton s failure to participate (not raising the statute of limitations argument at all) which was argued in Court and denied on April 22, (Docket # 90) 6

10 k. UMMC then agreed to the entry of a Scheduling order on April 22, 2013 (Docket #91) and took her deposition on May 3, l. UMMC also participated in the deposition of Dr. Douglas Soltys on May 22, 2013 Finally, on May 28, 2013, UMMC filed its Motion for Summary Judgment based on the statute of limitations issue (Docket #30) which was ultimately denied by the Trial Court. This Court, however, reversed the Trial Court s ruling, not only based on its retroactive application of the current version of the statute, but also based on what it found was a reasonable delay in UMMC s filing their Motion. In Horton v. Ms Credit, 926 So.2d 167, 181 (Miss. 2006) the Supreme Court said: We decline today to set a minimum number of days which will constitute unreasonable delay in every case, but rather we defer such findings for the trial court on a case by case basis. Again, the trial Court here apparently found that UMMC s delay and participation in litigation constituted a waiver and its holding should be upheld unless manifestly wrong. There has been no showing of that. This Court says that the delay in this case was caused by the Plaintiff and her failure to cooperate in discovery. However, it should be noted that the complaint was filed in May 2012 and not answered by UMMC until September 21, While UMMC may have propounded interrogatories to Ms. Hampton, it also utilized the court to subpoena the criminal case filings of the stabbing case clearly discovery not related to the statute of limitations. Moreover, if UMMC was uncertain of the date when Ms. Hampton learned of her cause of action, UMMC could have propounded an interrogatory to that effect which it did not. Yet it moved forward to compel the answers from Ms. Hampton that were given December 22, Instead of propounding further a specific interrogatory concerning discovery of the claim, UMMC chose to re-notice Ms. Hampton s deposition twice, and then brought a Motion to Dismiss for her failure to participate in the litigation. UMMC s strategy was not to discover the facts needed to 7

11 determine if their statute of limitations defense was viable; rather to get the case dismissed because Ms. Hampton did not have an attorney and did not show up for her depositions. Even when Ms. Hampton did secure an attorney, UMMC answered discovery propounded to it, pursued its strategy of dismissal based on non-cooperation, and pressed for a hearing on their Motion to Dismiss--only to have that Motion denied. Thereafter, UMMC entered into an Agreed Scheduling Order for further action in the case and participated in the deposition of Dr. Soltys. At no point, did UMMC specifically reserve its right to raise the statute of limitations defense in any of these actions it took. While there may have been some initial delay in movement of the case between September and February due to Ms. Hampton not having counsel, UMMC still actively engaged in litigation between February and May, which constituted a waiver by UMMC of the statute of limitations defense. Further, as noted by Judge Irving in his dissent, though UMMC may have argued its Motion for Summary Judgment based on the statute of limitations issue, it took no further action to stay the case pending a ruling on the Motion. Instead, it voluntarily participated in numerous depositions and extensive trial preparation before the issue case up again on the first day of trial. Under Horton v. MS Credit, supra, and its progeny, even if UMMC had a viable statute of limitations defense, it was waived in this case. CONCLUSION For the reasons set forth above, rehearing must be GRANTED, and the opinion must be withdrawn. The Appellee, Kim Hampton, respectfully requests that this Court withdraw its original opinion and affirm the lower court decision. RESPECTFULLY SUBMITTED, this the 25 th day of October, LEONTYNE LITTLETON, APPELLEE 8

12 _/s/ Crystal Martin Crystal Wise Martin Crystal Wise Martin Miss. Bar No Suzanne Keys Miss. Bar No PRECIOUS MARTIN & ASSOCIATES 821 N. Congress Street P.O. Box 373 Jackson, Miss T: ATTORNEYS FOR APPELLEE LEONTYNE LITTLETON CERTIFICATE OF SERVICE I hereby certify that I have this day served via ECF filing a true and correct copy of the above and foregoing to the following: Lanny Pace Emily Fischer Whitehead This the 18 th day of October, /s/ Crystal Martin Crystal Wise Martin 9