E-Filed Document Sep :59: CA Pages: 54 APPEAL FROM THE CIRCUIT COURT OF DESOTO COUNTY, MISSISSIPPI

Transcription

1 E-Filed Document Sep :59: CA Pages: 54 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI Case No CA VIJAY PATEL PLAINTIFF/APPELLANT I APPELLANT v. HILL-ROM COMPANY, INCORPORATED DEFENDANT/APPELLEE APPELLEE APPEAL FROM THE CIRCUIT COURT OF DESOTO COUNTY, MISSISSIPPI HONORABLE JUDGE GERALD W. CHATHAM, PRESIDING CIVIL ACTION NO. CV GCD BRIEF FOR APPELLEE ORAL ARGUMENT REQUESTED Prepared By: Christopher R. Cashen DINSMORE & SHOHL, LLP 250 W. Main Street, Suite 1400 Lexington, Kentucky And John R. McCarroll, III (MS ems #09292) WYATT, TARRANT & COMBS, LLP 1715 Aaron Brenner Drive, Suite 800 Memphis, Tennessee Counsel for Defendant/Appellee Hill-Rom Company, Inc.

2 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI Case No CA VIJAY PATEL PLAINTIFF I APPELLANT VS. HILL-ROM COMPANY, INCORPORATED DEFENDANT I APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualification or recusal. Vijay Patel, named Plaintiff and Appellant; Estate ofnatwarlal Patel; Beneficiaries of the Estate ofnatwarlal Patel; Hill-Rom Company, Inc.; Counsel for Plaintiff/ Appellant; Counsel for Defendant/ Appellee; and Honorable Judge Gerald Chatham s/ Christopher R. Cashen Christopher R. Cashen and John R. Mccarroll, III (MS #09292) Counsel for Defendant/Appellee Hill-Rom Company, Inc. 11

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PARTIES... ii TABLE OF CONTENTS... iii-v TABLE OF AUTHORITIES... vi-ix STATEMENT ON ORAL ARGUMENT... x STATEMENT OF ISSUES... 1 STATEMENT OF TI-IE CASE... 2 I. Factual Background II. Procedural History SUMMARY OF THE ARGUMENT ARGUMENT I. The Abuse Of Discretion Standard Of Review Governs This Appeal II. The Trial Court Did Not Abuse Its Discretion And Correctly Denied Patel's MRCP 59(e) Motion, As Patel Provided No Grounds For Relief Recognized Under The Narrow Standards OfMRCP 59(e) A. Required standard for relief under MRCP 59(e) B. The trial court did not commit an "egregious" legal error or act with manifest injustice in granting the Motion to Dismiss without a formal notice of hearing on the Motion being filed in the record Patel's counsel had actual notice of the May 23,2014 hearing Patel failed to challenge any impropriety in the notice of the hearing before the trial court granted Hill-Rom's Motion to Dismiss and, as a result, relief under MRCP 59( e) is unavailable Patel's constitutional arguments were not made to the trial court, should not be considered for the first time on appeal and, even if considered, provide no basis for reversal Any error in the notice of the May 23 hearing was harmless and does not merit reversal III

4 C. The trial court did not commit an "egregious" legal error or act with manifest injustice in converting Hill-Rom's Motion to Dismiss into a Motion for Summary Judgment The trial court was not presented with evidence outside the pleadings; therefore, conversion was unnecessary, no notice of conversion was required, and the mistaken conversion was, if anything, harmless error Even if the trial court did consider evidence outside the pleadings, such as Patel's "FDA docs," the trial court did not err in not providing Patel a formal 10 day notice of the conversion of the Motion to Dismiss to a Motion for Summary Judgment Patel had notice that Hill-Rom's Motion to Dismiss could be converted to a Motion for Summary Judgment and could have objected before the Court dismissed his claims, but failed to do so The trial court was permitted to consider evidence outside the pleadings, such as Patel's "FDA docs," without converting the Motion to Dismiss to a Motion for Summary Judgment, as they were referenced in Patel's Complaint and are central to his claims against Hill-Rom III. The Trial Court Did Not Abuse Its Discretion And Correctly Denied Patel's Request For Leave To Amend His Complaint A. Standard For Amendment ofa Complaint under MRCP B. The trial court correctly denied Patel leave to amend his Complaint because any such amendment would be futile, as the statute of limitations on his claims against Hill-Rom had expired C. The trial court correctly denied Patel leave to amend his Complaint because any such amendment would be futile, as Patel failed to establish that Hill-Rom fraudulently concealed any claims from PateL Patel failed to show that Hill-Rom engaged in affirmative acts of concealment, which were designed to and did prevent discovery of his claims..., Patel failed to show that he exercised due diligence in discovering his claims against Hill-Rom iv

5 D. The trial court correctly denied Patel leave to amend his Complaint, as Patel failed to promptly seek amendment and exercise due diligence in seeking amendment, which has prejudiced Hill-Rom CONCLUSION v

6 TABLE OF AUTHORITIES A.T v. Leflore County Sch. Dist., 2010 U.S. Dist. LEXIS (N.D. Miss. 2010) Anderson v. ALPS Auto., Inc., 51 So. 3d 929 (Miss. 2010) Andrus v. Ellis, 887 So. 2d 175 (Miss. 2004)... 34, 37 Angle v. Koppers, Inc. 42 So. 3d 1 (Miss. 2010)... 23, 30 Bender Square Partners v. Factory Mut. Ins. Co., 2012 U.S. Dist. LEXIS (S.D. Tex. 2012) Breeden v. Buchanan, 164 So. 3d 1057 (Miss. App. 2015)....10, 11,28,29 Brooks v. Roberts, 882 So. 2d 229 (Miss. 2004)... 9, 11 Caves v. Yarbrough, 991 So. 2d 142 (Miss. 2008)... 21, 31 Chantey Music Publ., Inc. v. Malaco, Inc., 915 So. 2d 1052 (Miss. 2005)....16, 23 Charlot v. Henry, 45 So. 3d 1237 (Miss. App. 2010) Clark Sand Co. v. Kelly, 60 So.3d 149 (Miss. 2011) Cook v. Mardi Gras Casino Corp., 697 So. 2d 378 (Miss. 1997) Doe v. Roman Catholic Diocese of Jackson, 947 So.2d 983 (Miss. App. 2006) Edward H Bohlin Co. v. Banning Co., 6 F.3d 350,355 (5th Cir. 1993)... 9 Elwood v. Cobra Collection Agency, 2008 U.S. Dist. LEXIS (S.D. Miss 2008)...,... 11, 12 Empire Abrasive Equip. Corp. v. Morgan, 87 So. 3d 455 (Miss. 2012) Estate of Eva Boles v. Nat 'I Heritage Realty, Inc., 2010 U.S. Dist. LEXIS (N.D. Miss. 2010) Freeman v. CLC of Biloxi, LLC, 119 So. 3d 1164 (Miss. App. 2013)... 9 Fulkerson v. Reese, 2008 U.S. Dist. LEXIS (S.D. Miss 2008)....11, 12 Fulton v. Miss. Farm Bureau Cas. Ins. Co., 105 So. 3d 284 (Miss. 2012) Gilmore v. State, 119 So. 3d 278 (Miss. 2013) VI

7 Goldberg v. Kelly, 397 U.S. 254 (1970) Gray v. Border Express Servs., Ltd., 2012 U.S. Dist. LEXIS 614 (S.D. Miss. 2012)... 9 Gray v. State, 799 So. 2d 53 (Miss. 2001)... 18, 19,21,23 Guide One Mut. Ins. Co. v. Rock, 80 Fed. R. Evid. Servo (Callaghan) 200 (N.D. Miss. 2009) Harris V. Brush Engineered Materials, 2005 U.S. Dist. LEXIS (S.D. Miss. 2005) Hartford Cas. Ins. CO. V. Halliburton Co., 826 So.2d 1206 (Miss. 2001) Hobbs V. Legg Mason Inv. Counsel & Trust Co., NA., 107 A.F.T.R.2d (RIA) 697 (N.D. Miss. 2011) Holloman V. Holloman, 691 So.2d 897 (Miss. 1996) Holly V. Harrah's Tunica Corp., 962 So. 2d 136 (Miss. App. 2007) Hopewell Enters. V. Trustmark Nat'l Bank, 680 So. 2d 812 (Miss. 1996) Howard V. Tota(fina E&P USA, Inc., 899 So. 2d 882 (Miss. 2005) Jones V. Jackson Pub. Sch., 760 So. 2d 730 (Miss 2000)....24, 27 Jones V. Lovett; 755 So. 2d 1243 (Miss. App. 2000) Lincoln Elec. CO. V. McLemore, 54 So. 3d 833 (Miss. 2010) McCarty V. Kellum, 667 So. 2d 1277 (Miss. 1995) Medicomp, Inc. V. Marshall, 878 So. 2d 193 (Miss. App. 2004)... 30, 33, 34 Merideth V. Merideth, 987 So. 2d 477 (Miss. App. 2008)... 29, 30, 42 Miss. Comm'n on Judicial Performance V. McPhail, 874 So. 2d 441 (Miss. 2004)....14, 15 Mississippi Code Section Mississippi Code Section Mississippi Code Section Mississippi Power CO. V. Goudy, 459 So. 2d 257 (Miss. 1984)... 14, 15 Vll

8 MRCP MRCP MRCP MRCP MRCP MRCP Nationalist Movement v. Town of Jena, 321 Fed. Appx. 359 (5th Cir. 2009)...10, 15,38 Nygaardv. Getty Oil Co., 918 So. 2d 1237 (Miss. 2005)... 37, 39 O'Hara v. Travelers, 2012 U.S. Dist. LEXIS (S.D. Miss. 2012)...10 Peavey Elecs. Corp. v. Baan US.A., Inc., 10 So. 3d 945 (Miss. App. 2009) Pierce v. Heritage Props., 688 So. 2d 1385 (Miss. 1997) Poole v. Avara, 908 So. 2d 716 (Miss. 2005) Pope v. Sorrentino, 992 So. 2d 1194 (Miss. App. 2008) P PG Architectural Finishes, Inc. v. Lowery, 909 So.2d 47 (Miss. 2005) Pratt v. City of Greenville, 804 So. 2d 972 (Miss. 2001) Putnam v. Bayer, 2011 U.S. Dist. LEXIS (S.D. FI. 2011) Robison v. Enter. Leasing Co. - S. Cent., Inc., 57 So. 3d 1 (Miss. App. 2010)... 24, 27 Robinson v. Cobb, 763 So. 2d 883 (Miss. 2000)... 32, 36 Rose v. Tullos, 994 So. 2d 734 (Miss. 2008) Rosenzweig v. Azurix Corp., 332 F.3d 854 (5th Cir. 2003)...15, 38 Russell v. Williford, 907 So. 2d 362 (Miss. App. 2004)... 37, 39 Sanderson Farms, Inc. (Prod. Div.) v. Ballard, 917 So. 2d 783 (Miss. 2005)... 22, 33 Saul v. South Central, 25 So. 3d 1037 (Miss. 2010) viii

9 Southern v. Miss. State Hosp., 853 So. 2d 1212 (Miss. 2003)... 16, 23 State v. Quitman County, 807 So. 2d 401 (Miss. 2001) State Indus. v. Hodges, 919 So. 2d 943 (Miss. 2006)... 22, 35 Stephens v. Equitable L~fe Assur. Soc'y of the United States, 850 So. 2d 78 (Miss. 2003)... 22, 33 Templetv. HydrochemInc., 367F.3d473 (5thCir. 2004)... 11, 16,27,38 Triplett v. Brunt-Ward Chevrolet, 812 So. 2d 1061 (Miss. App. 2001) Trustmark Nat'l Bank v. C. Brent Meador, 81 So. 3d 1112 (Miss. 2012)... 22, 33, 37, 38 TXG Intrastate Pipeline Co. v. Grossnickle, 716 So. 2d 991 (Miss. 1997) United States v. Wilson, 2008 U.S. Dist. LEXIS (S.D. Miss. 2008) Univ. of Miss. Med. Ctr. v. McGee, 999 So. 2d 837 (Miss. 2008) Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429 (7th Cir. 1993) Waltersv. Blackledge, 71 So. 2d433 (Miss. 1954) Walton v. Bourgeois, 512 So. 2d 698 (Miss. 1987) Webb v. Braswell, 930 So. 2d 387 (Miss. 2006)....40, 41 Wells v. Radiator Specialty Co., 413 F. Supp. 2d 778 (S.D. Miss. 2006) Wilbanks v. Dalkon Shield Claimants Trust, 1998 U.S. Dist. LEXIS (N.D. Miss. 1998) IX

10 STATEMENT ON ORAL ARGUMENT Although the trial court's ruling was based upon clear facts and well-settled and unambiguous law, the Appellees believe that oral argument will illuminate the material issues in this appeal and the process will be aided by oral argument. Therefore, the Appellees request oral argument. x

11 STATEMENT OF ISSUES I. The trial court did not abuse its discretion when it denied Vijay Patel relief under MRCP 59(e) for the alleged legal error of granting Hill-Rom's Motion to Dismiss without a formal notice of hearing having been filed in the record. II. The trial court did not abuse its discretion when it denied Vijay Patel relief under MRCP 59(e) for the alleged legal error of improperly converting Hill-Rom's Motion to Dismiss to a Motion for Summary Judgment. III. The trial court did not abuse its discretion when it denied Vijay Patel leave to amend his Complaint.

12 STATEMENT OF THE CASE This is an untimely product liability case, filed years after expiration of the applicable statute of limitations. Vijay Patel ("Patel" or "Plaintiff') claims that on December 19, 2007, his father, Natwarlal Patel ("Patel's father" or "decedent") fell from a VersaCare model hospital bed, manufactured by Hill-Rom, while decedent was admitted to Baptist Memorial Hospital - Desoto (the "Hospital"). Patel alleges that his father suffered brain injuries, and tragically died on January 5, 2008, as a result of the fall. On February 8, 2013, over 5 years after the decedent died and over 2 years after the statute of limitations expired, Patel sued Hill-Rom asserting that the bed was defective. In an effort to dodge the running of the 3 year statute of limitations, Patel, without providing any facts or evidence in support, argued that Hill-Rom fraudulently concealed Patel's claims. Finding the claims against Hill-Rom untimely and that Patel failed to adequately plead and establish fraudulent concealment, the trial court granted Hill-Rom's Motion to Dismiss and refused to grant Patel leave to amend his Complaint. Patel then sought relief under MRCP 59(e), which the court denied. I. Factual Background. 1 According to the Complaint, on December 17, 2007, Patel's father was admitted to the Hospital for complaints of "shortness of breath, weakness, and lethargy." 2 (CP p. 10; RE 2; Complaint at~ 6). Sometime after his admission, he was placed in a bed, described by Patel as a "VersaCare hospital bed," allegedly manufactured by Hill-Rom. (CP p. 9; RE 2; Complaint at~ 4). Due to his heart condition, Patel's father was given an anti-coagulant, which had the adverse 1 The factual background is relatively brief, as it primarily focuses on facts as alleged in the Complaint. 2 Citations to the record will be as follows: "CP" refers to clerk's papers from the trial court record; "CPT" refers to transcripts of proceedings from the trial court; and "RE" refers to Appellee' s record excerpts. 2

13 effect of increasing his risk of blood loss. (CP p. 1 O; RE 2; Complaint at~ 7). In addition, he was medicated using "[b]enzodiazepines and narcotics." (CP p. 1 O; RE 2; Complaint at~ 8). As a result, the Hospital labeled Patel's father as a "fall risk" and utilized "high risk fall precautions," including engagement of the "side rails" and use of a "bed alarm" to notify the Hospital staff if he "exited his bed." (CP p. 1 O; RE 2; Complaint at~ 8-9). A day after his admission to the Hospital, on December 18, 2007, Patel's father "began experiencing episodes of confusion, disorientation, and weakness" even resulting in "blurred vision." (CP p. 1 O; RE 2; Complaint at~ 10). According to the Complaint, on the early morning of December 19, 2007, Patel's father was found "lying on the floor of his hospital room" with the bed's side rails "lowered" and the "bed alarm system having failed to activate." (CP p. 10; RE 2; Complaint at ~ 11 ). Patel claims that a CT scan revealed that his father had suffered a brain injury due to the fall. (CP p. 1 O; RE 2; Complaint at ~ 12). After transfer to another hospital, he underwent surgery to address the brain injury. (CP p. 11; RE 2; Complaint at~ 14). Tragically, decedent died on January 5, 2008, as a result of "complications of blunt force injuries." (CP p. 11; RE 2; Complaint at~ 15). II. Procedural History. On February 8, 2013, over 5 years after the accident and 2 years after the statute of limitations expired, Patel sued Hill-Rom for wrongful death and survival, claiming that the bed from which the decedent allegedly fell was defective. 3 (CP p. 8; RE 2; Complaint). Specifically, Patel asserted causes of action against Hill-Rom amounting to: a) strict products liability in defective design, manufacture, and warning; b) negligent design and manufacture; as well as c) breach of express and implied warranties. (See CP p. 8; RE 2; Complaint). In addition, Patel sought an award of punitive damages against Hill-Rom. (CP p. 17; RE 2; Complaint~ 52). In 3 Baptist Memorial Hospital - Desoto was not named as a defendant in this action, and Hill-Rom believes Patel settled his claims against the Hospital pre-suit. 3

14 an apparent effort to invoke the doctrine of fraudulent concealment, and avoid the statute of limitations, Patel plead the following: The events complained of herein were knowingly concealed by the Defendant Hill-Rom from both the Plaintiff and Federal Drug Administration and not discovered until March 2012, at which time they were published in the Federal Register... In its concealment, the Defendant suppressed information from the aforementioned federal regulatory agency as well as the Plaintiff of a pattern of producing and providing faulty, unreasonably dangerous products. (CP p. 9; RE 2; Complaint,-r 5). Hill-Rom was served with the Complaint on April 4, 2013 and answered on May 3, (CP p. 20; RE 3; Answer). On November 13, 2013, Hill-Rom moved to dismiss Patel's Complaint as untimely and argued that the statute of limitations was not tolled, as Patel failed to establish the required elements of fraudulent concealment. (CP p. 50; RE 4; Motion to Dismiss). Patel responded, on December 9, 2013, in opposition to the Motion to Dismiss. (CP p. 66; RE 5; Response to Motion to Dismiss). Patel argued, essentially, that the statute of limitations was tolled, as Hill-Rom fraudulently concealed Patel's claims, and requested leave to amend his Complaint. (CP p. 67; RE 5; Response to Motion to Dismiss, p. 2). In his Response, Patel claimed that he adequately established fraudulent concealment and, to the extent he failed to do so, offered a single additional sentence in support of his allegations that Hill-Rom engaged in fraudulent concealment. (CP p. 67; RE 5; Response to Motion to Dismiss, p. 2). Additionally, Patel purported to attach "FDA docs" as Exhibit 1 to his Response. (CP p. 71; RE 5; Response to Motion to Dismiss, p. 6). On December 20, 2013, Hill-Rom filed a Reply in support of its Motion to Dismiss, reiterating that Patel's claims were untimely and that he could not rely on the doctrine of fraudulent concealment to avoid the statute of limitations. (CP p. 112; RE 6; Reply in Support of Motion to Dismiss). 4

15 Once the briefing on the Motion to Dismiss was complete, the parties agreed to a hearing date for the Motion and the hearing date was scheduled with the trial court. On February 22, 2014, Patel's counsel agreed to schedule the hearing on Hill-Rom's Motion to Dismiss for May 23,2014. (CP p. 139; RE 10; Exhibit 1 to Response to MRCP 59(e) Motion). Thereafter, the hearing was set for May 23, On May 21, 2014, counsel for Hill-Rom contacted Patel's counsel and reminded him of the May 23 hearing. (CP p. 140; RE 10; Exhibit 2 to Response to MRCP 59(e) Motion). Patel's counsel responded that the May 23 hearing was not on the trial court's docket. (CP p. 141; RE 10; Exhibit 3 to Response to MRCP 59(e) Motion). However, the hearing for May 23, 2014 was, in fact, on the trial court's docket as confirmed by the court's office. (CP p. 142; RE 10; Exhibit 4 to Response to MRCP 59(e) Motion). On May 21, 2014, Hill-Rom's counsel again ed Patel's counsel, several times, and informed Patel's counsel that the May 23 hearing was on the trial court's docket, reminded him of his agreement to set the hearing for May 23, and said that he would see Patel's counsel at the May 23 hearing. (CP p ; RE 10; Exhibit 5 to Response to MRCP 59(e) Motion). On May 22, 2014, Hill-Rom's local counsel, again, reminded Patel's counsel of the May 23 hearing and, again, informed him that the hearing was on the trial court's docket. (CP p. 145; RE 10; Exhibit 6 to Response to MRCP 59(e) Motion). Even the trial judge reminded Patel's counsel of the May 23 hearing, when he saw Patel's counsel in passing a few days before the hearing. (CPT p. 15; RE 11; Transcript of November 25,2014 Hearing, p. 15). Despite being aware of the hearing and knowing it was on the trial court's docket, Patel's counsel failed to appear at the May 23, 2014 hearing. At the hearing, the trial court expressly found that Hill-Rom's Motion to Dismiss was properly noticed for May 23, (CPT p. 3; RE 7; Transcript of May 23, 2014 Hearing, p. 3). 5

16 On June 10, 2014, the trial court entered its Order granting Hill-Rom's Motion to Dismiss. (CP p. 119; RE 8; Order Granting Motion to Dismiss). Patel was not permitted to amend his Complaint. (CP p. 119; RE 8; Order Granting Motion to Dismiss). Applying the standard under MRCP 12(b)( 6), the trial court found that the 3 year statute of limitations contained in Mississippi Code Section rendered Patel's claims untimely. (CP p ; RE 8; Order Granting Motion to Dismiss, p. 2-5). More specifically, the trial court reviewed the facts plead in the Complaint, applied Mississippi Code Section , and examined the required elements of fraudulent concealment and ruled that Patel failed to establish "a prima facie case against Hill-Rom for fraudulent concealment." (CP p. 122; RE 8; Order Granting Motion to Dismiss, p. 4). Additionally, the trial court, again, specifically found that Patel's counsel was "duly notified" of the May 23 hearing. (CP p. 122; RE 8; Order Granting Motion to Dismiss, p. 4). Despite there being nothing outside the pleadings for the court to consider, the trial court noted that it reviewed evidence outside the pleadings and professed to convert the Motion to Dismiss to a Motion for Summary Judgment. (CP p. 120; RE 8; Order Granting Motion to Dismiss, p. 2, fn 1). On June 18, 2014, Patel filed his MRCP 59(e) Motion, requesting relief under MRCP 59(e). (CP p. 124; RE 9; MRCP 59(e) Motion). Patel urged reconsideration based on only two points: 1) no formal notice of hearing for the May 23, 2014 hearing was filed in the record; and 2) the trial court improperly converted the Motion to Dismiss into a Motion for Summary Judgment, as the court was presented with no evidence outside the pleadings, and failed to provide a formal 10 day notice of the conversion. (CP p. 124; RE 9; MRCP 59(e) Motion). These issues were not previously raised to the trial court. On June 27,2014, Hill-Rom filed a Response in Opposition to the MRCP 59(e) Motion. 6

17 (CP p. 128; RE 10; Response to MRCP 59(e) Motion). In the Response, Hill-Rom highlighted that Patel failed to establish any grounds for relief recognized by MRCP 59( e) and merely reiterated arguments that he could have made, or did make, to the trial court before the court granted Hill-Rom's Motion to Dismiss. (CP p. 128; RE 10; Response to MRCP 59(e) Motion). Patel filed no Reply in Support of his MRCP 59(e) Motion. A hearing was held on the MRCP 59(e) Motion on November 25,2014. (CPT p. 5; RE 11; Transcript of November 25, 2014 Hearing). On January 30,2015, the trial court entered its Order denying the MRCP 59(e) Motion. (CP p. 158; RE 12; Order Denying 59(e) Motion). This appeal followed. SUMMARY OF THE ARGUMENT First, the trial court did not abuse its discretion when it denied Patel's MRCP 59(e) Motion, which argued that the court erred by granting Hill-Rom's Motion to Dismiss without a formal notice for the May 23, 2014 hearing being filed in the record. There is no dispute that Patel's counsel had actual notice of the May 23 hearing, as he agreed to schedule the hearing on May 23, was repeatedly reminded of the May 23 hearing by Hill-Rom's counsel and the trial court before the hearing, and knew the May 23 hearing was on the trial court's docket. Additionally, Patel failed to challenge the lack of formal notice before the trial court granted the Motion to Dismiss; this misstep prohibits such an argument under MRCP 59( e). Patel's constitutional arguments, concerning the lack of formal notice, were not made to the trial court and cannot be pursued on appeal. Moreover, even if considered on appeal, the record shows that Patel was afforded due process before his claims were dismissed. Finally, any error in the trial court not requiring a formal notice of the hearing was harmless. Patel's counsel had actual notice of the hearing, an opportunity to be heard, and the trial court's dismissal was based on the merits of the Motion to Dismiss, not on Patel's counsel's failure to appear at the hearing. 7

18 Second, the trial court did not abuse its discretion when it denied Patel's MRCP 59(e) Motion, which argued that the court erred by converting Hill-Rom's Motion to Dismiss into a Motion for Summary Judgment without a formal 10 day notice. There is no dispute that the trial court was not presented with evidence outside the pleadings. Thus, conversion and notice of conversion were not required. Additionally, the trial court's inadvertent mistake in converting the Motion to Dismiss into a Motion for Summary Judgment was harmless. The trial court applied the standard for judging a motion to dismiss under MRCP 12(b)(6) and could not have based its ruling on evidence that did not exist in the record. Even if the trial court did consider evidence outside the pleadings, it did not err in failing to provide Patel with formal notice of the conversion. Patel knew, or should have known, that Hill-Rom's Motion to Dismiss could be converted into a Motion for Summary Judgment - no formal notice from the court was required. Patel failed to object to the conversion before the court dismissed his claims, making such a challenge improper under MRCP 59(e). Finally, if the trial court reviewed documents outside the pleadings, such as the "FDA docs" which Patel purportedly attached to his Response to the Motion to Dismiss, the trial court was not required to convert the Motion to Dismiss into a Motion for Summary Judgment. These documents were repeatedly referenced in Patel's Complaint and are central to his claims against Hill-Rom, making their review under a motion to dismiss proper. Third, the trial court did not abuse its discretion when it refused to grant Patel leave to amend his Complaint. Such an amendment would have been futile, as the statute of limitations had expired on Patel's claims against Hill-Rom. Moreover, the statute of limitations was not tolled, as Patel failed to plead fraudulent concealment with particularity or establish the required elements for fraudulent concealment - namely, that Hill-Rom engaged in affirmative acts which were designed to and did prevent Patel from discovering his claims against Hill-Rom and that 8

19 Patel exercised due diligence in discovering his claims. Lastly, granting Patel leave to amend would have been improper, as Patel failed to promptly seek amendment of his Complaint or exercise due diligence in seeking amendment, which resulted in prejudice to Hill-Rom. As a result, the trial court should be affirmed on appeal. ARGUMENT I. The Abuse Of Discretion Standard Of Review Governs This Appeal. 4 Patel argues that the trial court erred in three respects: 1) granting Hill-Rom's Motion to Dismiss without a formal notice of hearing on the Motion having been filed in the record; 2) improperly converting Hill-Rom's Motion to Dismiss into a Motion for Summary Judgment; and 3) denying Patel's request for leave to amend his Complaint. All of these alleged errors are reviewed on appeal under a deferential abuse of discretion standard. Patel asserted his notice of hearing and improper conversion arguments for the first time in his MRCP 59(e) Motion. (CP p ; RE 9; MRCP 59(e) Motion, p. 1-2). Courts are given wide discretion in granting or denying motions under MRCP 59(e). Freeman v. CLC of Biloxi, LLC, 119 So. 3d 1164 (Miss. App )("The grant or denial of a Rule 59 motion is within the discretion of the judge"); Gray v. Border Express Servs., Ltd., 2012 U.S. Dist. LEXIS 614 (S.D. Miss. 2012)("The Court has 'considerable discretion' when considering Rule 59(e) motions")(quoting Edward H Bohlin Co. v. Banning Co., 6 F.3d 350, 355 (5th Cir. 1993)). Thus, denial of a MRCP 59(e) motion is reviewed under an abuse of discretion standard. Brooks v. Roberts, 882 So. 2d 229 (Miss. 2004)("This Court reviews a trial court's denial of a Rule 59 motion under an abuse of discretion standard"). Patel requested leave to amend his Complaint in his Response to Hill-Rom's Motion to 4 Patel failed to identify the standard of review he believes is applicable to this appeal. Regardless, as shown in Section I, the correct standard of review for all issues is abuse of discretion. 9

20 Dismiss (and again in his MRCP 59(e) Motion). 5 (CP p. 67, 70; RE 5; Response to Motion to Dismiss, p. 2, 5) (CP p. 125, 70; RE 9; MRCP 59(e) Motion, p. 2). "In the appeal of the denial of a motion to amend, [the court applies] an abuse-of-discretion standard of review." Breeden v. Buchanan, 164 So. 3d 1057 (Miss. App. 2015)(citing Pratt v. City of Greenville, 804 So. 2d 972 (Miss. 2001)). As this Court knows, the abuse of discretion standard is deferential to the trial court. Abuse of discretion occurs where a judge fails "to exercise sound, reasonable, and legal decisionmaking... [and acts in a manner which is] grossly unsound, unreasonable, illegal, or unsupported by the evidence." Black's Law Dictionary, Pocket Edition, p. 5 (3rd ed. 2006). Case law explains this standard as Mississippi "[c]ourt[s] will not disturb the [trial court's] opinion when supported by substantial evidence unless the [trial court] abused his or her discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Holloman v. Holloman, 691 So.2d 897 (Miss. 1996); see also Howard v. Totalfina E&P USA, Inc., 899 So. 2d 882 (Miss. 2005)("Abuse of discretion is found when the reviewing court has a definite and firm conviction that the court below committed a clear error of judgment"); Pierce v. Heritage Props., 688 So. 2d (Miss. 1997)(When applying an abuse of discretion standard, the reviewing court will affirm "unless there is a definite and firm conviction that the court below committed a 5 Patel first sought leave to amend his Complaint in his Response to Hill-Rom's Motion to Dismiss and, again, in his MRCP 59(e) Motion. (CP p. 67, 70; RE 5; Response to Motion to Dismiss, p. 2, 5) (CP p. 125, 70; RE 9; MRCP 59(e) Motion, p. 2). In granting Hill-Rom's Motion to Dismiss, the trial comi denied Patel's request for leave to amend his Complaint. MRCP 59(e) cannot be used as a means to rehash arguments previously made to the comi. Nationalist Movement v. Town of Jena, 321 Fed. Appx. 359 (5th Cir. 2009) (recognizing that motions under Fed.R.Civ.P. 59(e) cannot be used to "re-urge matters that have already been advanced by a pa1iy"); O'Hara v. Travelers, 2012 U.S. Dist. LEXIS (S.D. Miss. 2012) ("motions for reconsideration should not be used to... re-urge matters that have already been advanced by a patiy"); Hobbs v. Legg Mason Inv. Counsel & Trust Co., N.A., 107 A.F.T.R.2d (RIA) 697 (N.D. Miss. 2011); Estate of Eva Boles v. Nat'! Heritage Realty, Inc., 2010 U.S. Dist. LEXIS (N.D. Miss. 2010); A.T. v. Leflore County Sch. Dist., 2010 U.S. Dist. LEXIS (N.D. Miss. 2010). Thus, the Court should review the trial comi's denial of Patel's leave to amend his Complaint at the Motion to Dismiss stage, not in Patel's MRCP 59(e) Motion. Patel does not get two bites at the amendment apple. 10

21 clear error of judgment"). As a result, Judge's Chatham's Orders must be affirmed, unless the Court concludes with a "definite and firm conviction" that "the discretion he used [was] arbitrary and clearly erroneous." Id.; Breeden, 164 So. 3d 1057 (quoting Poole v. Avara, 908 So. 2d 716 (Miss. 2005)). II. The Trial Court Did Not Abuse Its Discretion And Correctly Denied Patel's MRCP 59(e) Motion, As Patel Provided No Grounds For Relief Recognized Under The Narrow Standards OfMRCP 59(e). MRCP 59(e) governs motions to alter or amend a judgment, such as Patel's MRCP 59(e) Motion. Patel's contentions that the trial court erred in: 1) granting Hill-Rom's Motion to Dismiss without a formal notice of hearing on the Motion; and 2) improperly converting Hill- Rom's Motion to Dismiss into a Motion for Summary Judgment, were made to the trial court in his MRCP 59(e) Motion. Thus, those arguments must be reviewed on appeal with careful consideration to the standards for relief under MRCP 59(e). A. Required standard for relief under MRCP 59( e). Mississippi law recognizes only three grounds upon which a court may grant a MRCP 59(e) motion. To succeed in a MRCP 59(e) motion, "the movant must show: (i) an intervening change in controlling law, (ii) availability of new evidence not previously available, or (iii) need to correct a clear error of law or to prevent manifest injustice." Brooks v. Roberts, 882 So. 2d 229 (Miss. 2004). Mississippi Courts recognize that granting a motion under MRCP 59(e) is exceptional and is an "extraordinary remedy that should be used sparingly." Templet v. Hydrochem Inc., 367 F.3d 473 (5th Cir. 2004); Fulkerson v. Reese, 2008 U.S. Dist. LEXIS (S.D. Miss 2008); Elwood v. Cobra Collection Agency, 2008 U.S. Dist. LEXIS (S.D. Miss 2008); United 11

22 States v. Wilson, 2008 U.S. Dist. LEXIS (S.D. Miss. 2008); Guide One Mut. Ins. Co. v. Rock, 80 Fed. R. Evid. Serv. (Callaghan) 200 (N.D. Miss. 2009). 6 Patel's MRCP 59(e) Motion was silent on which basis for relief he claims is available under MRCP 59(e). However, at the hearing on Patel's MRCP 59(e) Motion, Patel argued that relief was needed to correct a clear error of law. 7 (CPT p. 14; RE 11; Transcript of November 25, 2014 Hearing, p. 14). The trial court, however, correctly rejected that argument. MRCP 59( e) only provides relief from clear errors of law if they rise to the level of being "egregious." 8 Fulkerson, 2008 U.S. Dist. LEXIS (emphasis added); Elwood, 2008 U.S. Dist. LEXIS ; Wilson, 2008 U.S. Dist. LEXIS None of Patel's purported errors, if errors at all, were egregious. Likewise, Patel cannot claim that he suffered manifest injustice, which requires "a fundamental flaw in the court's decision that without correction would lead to a result that is both inequitable and not in line with applicable policy." Bender Square Partners, 2012 U.S. Dist. LEXIS (emphasis added). As shown below, since Patel failed to prove that an "egregious" legal error was committed by the trial court or that a "fundamental flaw in the court's decision" amounting to manifest injustice occurred, Patel failed to meet his burden under MRCP 59(e) and this Court should affirm the trial court's denial of Patel's MRCP 59(e) Motion. 6 Mississippi courts regularly rely on federal authority when interpreting MRCP 59(e). See Fulton v. Miss. Farm Bureau Cas. Ins. Co., 105 So. 3d 284 (Miss. 2012)(Relying on federal authority interpreting Fed.R.Civ.Pro 59(e) when interpreting MRCP 59(e)). 7 Patel did not argue that he was entitled to relief under MRCP 59(e) based upon an intervening change in controlling law or new evidence not previously available. Indeed, Patel identified no such change in the law or new evidence. Thus, Hill-Rom does not address those issues on appeal. 8 Other courts have also recognized the exacting standard for an error of law and defined an error of law under Fed.R.Civ.P. 59(e) to be "one that is plain and indisputable, and that amounts to a complete disregard of the controlling law or the credible evidence in the record... [such as] when the court has patently misunderstood a party, has made a decision outside the adversarial issues presented, has made a mistake not of reasoning but of apprehension." Bender Square Partners v. Factory Mut. Ins. Co., 2012 U.S. Dist. LEXIS (S.D. Tex. 2012). 12

23 B. The trial court did not commit an "egregious" legal error or act with manifest injustice in granting the Motion to Dismiss without a formal notice of hearing on the Motion being filed in the record. On appeal, as in his MRCP 59(e) Motion, Patel argues that the trial court erred when it granted Hill-Rom's Motion to Dismiss without a formal notice of hearing being filed in the record. For the reasons stated below, this is not an "egregious" legal error or a "fundamental flaw in the court's decision" and is no basis for relief under MRCP 59(e). 1. Patel's counsel had actual notice of the May 23, 2014 hearing. Patel's counsel agreed to schedule the hearing on May 23, 2014, was repeatedly reminded of the May 23 hearing by Hill-Rom's counsel and the trial court before the hearing, and knew the May 23 hearing was on the trial court's docket. Thus, Patel's counsel had actual notice of the May 23 hearing. Inexplicably, he still failed to appear at the hearing. There is no dispute that Patel's counsel agreed to schedule the hearing on Hill-Rom's Motion to Dismiss for May 23, Patel even admits that the parties agreed to set May 23, 2014 as the date for the hearing. (Appellate Brief, p. 6). This fact is further evidenced in the following correspondence. On February 22,2014, Patel's counsel agreed to schedule the hearing on Hill-Rom's Motion to Dismiss for May 23,2014. (CP p. 139; RE 10; Exhibit 1 to Response to MRCP 59(e) Motion). Thereafter, the hearing was set for May 23, On May 21, 2014, counsel for Hill-Rom contacted Patel's counsel and reminded him of the May 23 hearing. (CP p. 140; RE 10; Exhibit 2 to Response to MRCP 59(e) Motion). Patel's counsel responded that the May 23 hearing was not on the trial court's docket. (CP p. 141; RE 10; Exhibit 3 to Response to MRCP 59(e) Motion). However, the hearing for May 23, 2014 was, in fact, on the trial court's docket as confirmed by the Court's office. (CP p. 142; RE 10; Exhibit 4 to Response to MRCP 59(e) Motion). On May 21, 2014, Hill-Rom's counsel again ed Patel's counsel, several times, and informed Patel's counsel that the May 23 hearing was on the trial court's docket, 13

24 reminded him of his agreement to set the hearing for May 23, and said that he would see Patel's counsel at the May 23 hearing. (CP p ; RE 10; Exhibit 5 to Response to MRCP 59(e) Motion). On May 22, 2014, Hill-Rom's local counsel, again, reminded Patel's counsel of the May 23 hearing and, again, informed him that the hearing was on the trial court's docket. (CP p. 145; RE 10; Exhibit 6 to Response to MRCP 59(e) Motion). At the hearing on Patel's MRCP 59(e) Motion, the trial judge explained to Patel's counsel that, before the May 23 hearing on the Motion to Dismiss, the judge personally told Patel's counsel about the hearing: Judge Chatham: The Court has an unusually vivid memory of this particular incident, Mr. Guernsey. I remember running into you in court somewhere down the road, maybe Batesville or somewhere, and acknowledged to you that we had a motion set with you on Friday here in DeSoto County. And we exchanged pleasantries, and I said I'll see you Friday is the way we left it. And then you weren't here Friday... (CPT p. 15; RE 11; Transcript of November 25,2014 Hearing, p. 15). As a result, the trial court expressly found that Hill-Rom's Motion to Dismiss was properly noticed for May 23, (CPT p. 3; RE 7; Transcript of May 23, 2014 Hearing, p. 3) (CP p. 122; RE 8; Order Granting Motion to Dismiss, p. 4). Despite his actual notice of the hearing, Patel's counsel failed to attend the hearing. In his Appellate Brief, Patel relies on Holly v. Harrah's Tunica Corp., 962 So. 2d 136 (Miss. App. 2007), Mississippi Power Co. v. Goudy, 459 So. 2d 257 (Miss. 1984), and Miss. Comm'n on Judicial Performance v. McPhail, 874 So. 2d 441 (Miss. 2004) in support of his notice argument. However, none of the cases are on point or require reversal. In Holly, defendant filed a motion to dismiss for failure to obtain replacement counsel on November 19; however, plaintiff had already retained replacement counsel on November 18. Holly, 962 So. 2d 136. The court granted the baseless motion to dismiss - without a hearing or any notice to 14

25 plaintiff - on November 20. Id. The Court of Appeals held that the trial court lacked any basis for dismissal and plaintiff had no notice or opportunity to be heard. Id. Goudy is equally inapplicable, as it involved the constitutionality of a utility statute and whether utility rates could be adjusted without notice - the statute was held constitutional and no notice was required. Goudy, 459 So. 2d 257. Likewise, McPhail provides no support for Patel's argument, as the case involved judicial discipline for various judicial actions (such as entering a judgment against a litigant) undertaken without any notice. McPhail, 874 So. 2d 44l. These cases should be ignored. The facts are undisputed. Patel's counsel agreed to schedule the hearing on Hill-Rom's Motion to Dismiss for May 23, Before the May 23 hearing, Patel's counsel was repeatedly told that the hearing was set for that date by counsel for Hill-Rom, the trial court's office, as well as the trial judge himself. Even so, Patel's counsel failed to attend the hearing on May 23,2014. Patel's counsel's failure to attend the hearing was not the result of a clear legal error or manifest injustice on the part of the trial court - any error was his own. 2. Patel failed to challenge any impropriety in the notice of the hearing before the trial court granted Hill-Rom's Motion to Dismiss and, as a result, relief under MRCP 59( e) is unavailable. Since Patel's counsel was unquestionably aware of the May 23 hearing, he could have attended the hearing (or made some other filing) and urged the exact same argument to the trial court (before judgment was entered) that he made in his MRCP 59( e) Motion. He failed to do so. This, on its own, required that Patel's MRCP 59(e) Motion be denied. A motion under MRCP 59(e) "cannot be used to raise arguments which could, and should, have been made before the judgment issued." Rock, 80 Fed. R. Evid. Servo (Callaghan) 200; Rosenzweig V. Azurix Corp., 332 F.3d 854 (5th Cir. 2003); Nationalist Movement, 321 Fed. Appx. 359 ("Motions for reconsideration should not be used to raise arguments that could have 15

26 been made before the entry of judgment"); Templet, 367 F.3d 473. Having failed to make the lack of formal notice argument before Hill-Rom's Motion to Dismiss was granted, Patel was prohibited, as a matter of law, from making the argument in his MRCP 59(e) Motion. Thus, the MRCP 59(e) Motion was properly denied. 3. Patel's constitutional arguments were not made to the trial court, should not be considered for the first time on appeal and, even if considered, provide no basis for reversal. Patel argues on appeal that the trial court's grant of Hill-Rom's Motion to Dismiss without a formal notice of hearing being filed in the record violates the due process clauses of the United States and Mississippi State Constitutions. However, Patel never made this argument to the trial court and cannot make it now, for the first time, on appeal. "A trial judge cannot be put in error on a matter not presented to him." Southern v. Miss. State Hosp., 853 So. 2d 1212 (Miss. 2003). "Precedent mandates that this Court not entertain arguments made for the first time on appeal as the case must be decided on the facts contained in the record and not on assertions in the briefs." Chantey Music Pub!., Inc. v. Malaco, Inc., 915 So. 2d 1052 (Miss. 2005). The Mississippi Supreme Court "has repeatedly held that issues not raised at trial cannot be raised on appeal." Southern, 853 So. 2d Thus, Patel's constitutional arguments should not be considered on appeal. Regardless, even if the Court entertains Patel's constitutional arguments, the arguments fail and do not require reversal, as due process was satisfied in this case. Patel bases his constitutional arguments on Goldberg v. Kelly, 397 U.S. 254 (1970)(superseded on other grounds). 9 In Goldberg, the Court recognized that "[t]he fundamental requisite of due process of 9 Goldberg involves the due process that is required when welfare benefits are deprived. Patel cites no authority for the proposition that a similar level of due process is required in this case. In fact, Patel cites no authority for the proposition that a civil claim is a property interest requiring any due process or, if required, what that due process might be. This presents yet another reason why Patel's constitutional arguments should be ignored. Cook v. Mardi Gras Casino Corp., 697 So. 2d 3 78 (Miss. 1997)(holding 16

27 law is the opportunity to be heard." 10 Id. The hearing must "be at a meaningful time and in a meaningful manner." Id. At least in the context of deprivation of welfare benefits, the Court held that due process required "timely and adequate notice" of the deprivation and "an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally." Id. Here, the requirements of due process were clearly satisfied. Patel had actual notice of the May 23 hearing and knew the trial court could dismiss his claim. Patel's counsel received a copy of Hill-Rom's Motion to Dismiss and Reply. Patel's counsel agreed to schedule the hearing on May 23, was repeatedly reminded of the upcoming May 23 hearing by Hill-Rom's counsel, the trial court's office, and even the trial judge, and knew the May 23 hearing was on the court's docket. There can be no dispute that Patel had "timely and adequate notice" that his claim could be dismissed. Additionally, Patel had "an effective opportunity to defend" against dismissal. Id. Patel filed a brief in opposition to Hill-Rom's Motion to Dismiss. Likewise, had he attended the hearing, Patel, through his counsel, could have confronted any adverse witnesses testifying at the hearing (there were none) and presented "his own arguments and evidence orally." Id. Due process requires "an opportunity to be heard." Id. It does not, however, require one to take advantage of the process offered. 4. Any error in the notice of the May 23 hearing was harmless and does not merit reversal. Even if the trial court did err in ruling on Hill-Rom's Motion to Dismiss without a formal notice of hearing on the Motion being filed in the record, such error was harmless. Harmless that an argument was waived on appeal because of the failure to cite authority in support of the argument). 10 "The due process required by the Federal Constitution is the same due process of law which is required by Section 14 of the Constitution of the State of Mississippi." Walters v. Blackledge, 71 So. 2d 433 (Miss. 1954). 17

28 error occurs when error is "trivial, formal, or merely academic, and not prejudicial to the substantial rights of the party assigning it, and where it in no way affects the final outcome of the case." Gray v. State, 799 So. 2d 53 (Miss. 2001); 1-1 Williams on Mississippi Evidence Conversely, an error is not harmless "and [is] ground for reversal, only when it affects the final result of the case and works adversely to a substantial right of the party assigning it." Gray, 799 So. 2d 53. As a result, "[ w ] here an error is deemed harmless, reversal is not warranted." Gilmore v. State, 119 So. 3d 278 (Miss. 2013); MRCP 61 ("The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties"). It is clear that the purpose of MRCP 6( d) (the civil rule regarding filing of notice of hearings) is to provide notice to a party, or his counsel, when a motion will be heard. There can be no dispute that, before the hearing, Patel's counsel was aware of the May 23, 2014 hearing and knew it was on the trial court's docket. Thus, a formal notice of hearing for the May 23, 2014 hearing would have been superfluous. Additionally, Patel's arguments in opposition to the Motion to Dismiss were brought before the trial court. Patel's counsel filed a Response to Hill-Rom's Motion to Dismiss, which laid out the arguments why Hill-Rom's Motion should be denied. The trial court reviewed Patel's Response before granting Hill-Rom's Motion. (CP p. 119; RE 8; Order Granting Motion to Dismiss, p. 1). In granting Hill-Rom's Motion to Dismiss, the trial court carefully analyzed the relevant facts and applied the well-settled law to the facts. (CP p. 119; RE 8; Order Granting Motion to Dismiss, p. 1). The trial court did not simply grant the Motion because Patel's counsel was not present at the hearing; rather, the court based its decision on the substance of the legal arguments. As a result, the absence of a formal notice of hearing for the May 23 hearing was "trivial, formal, or merely academic," was "not prejudicial to the substantial rights of [Patel]," 18

29 and did not affect "the final outcome ofthe case." Gray, 799 So. 2d 53. In summary, Patel failed to show that the trial court's grant of Hill-Rom's Motion to Dismiss without a formal notice of hearing being filed in the record was an "egregious" legal error or a "fundamental flaw in the court's decision." Patel's arguments provide no basis for relief under MRCP 59(e). Thus, the trial court did not abuse its discretion in denying Patel relief under MRCP 59(e). C. The trial court did not commit an "egregious" legal error or act with manifest injustice in converting Hill-Rom's Motion to Dismiss into a Motion for Summary Judgment. Patel next urges reversal by arguing that the trial court erred when it sua sponte converted Hill-Rom's Motion to Dismiss into a Motion for Summary Judgment without a formal 10 day notice of the conversion. Like the other assignments of error made in his MRCP 59( e) Motion, and before this Court, the trial court's conversion of the Motion to Dismiss does not merit relief under the standards governing MRCP 59(e). Thus, denial of the MRCP 59(e) Motion was proper. 1. The trial court was not presented with evidence outside the pleadings; therefore, conversion was unnecessary, no notice of conversion was required, and the mistaken conversion was, if anything, harmless error. MRCP 12(b) states: If, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. MRCP 12(b)( emphasis added). It goes without saying, then, if matters outside the pleadings are not presented to the trial court, conversion of a motion to dismiss to a motion for summary judgment, and notice of conversion, are not required. See id. 19