E-Filed Document Aug :38: CA SCT Pages: 42 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO.

Transcription

1 E-Filed Document Aug :38: CA SCT Pages: 42 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO CA COA JANICE Y. DAVIS, AS EXECUTRIX OF THE ESTATE OF RICHARD B. DAVIS APPELLANT VS. DARRELL N. BLAYLOCK, M.D. APPELLEE ORAL ARGUMENT REQUESTED BRIEF OF APPELLEE On Appeal from the Circuit Court of Washington County, Mississippi Cause No CI, the Honorable Judge Ashley Hines Presiding Prepared and submitted by: Carl Hagwood (MSB#2039) Jacob O. Malatesta (MSB# ) HAGWOOD ADELMAN TIPTON PC 540 Main Street, Suite 403 (38701) Post Office Box 4537 Greenville, Mississippi Telephone: (662) Facsimile: (662) i

2 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO CA COA JANICE Y. DAVIS, AS EXECUTRIX OF THE ESTATE OF RICHARD B. DAVIS APPELLANT VS. DARRELL N. BLAYLOCK, M.D. 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 Court of Appeals may evaluate possible disqualification or recusal. 1. Janice Y. Davis, As Administratrix of the Estate of Richard B. Davis Appellant 2. The Estate of Richard B. Davis Appellant 3. Delta Regional Medical Center 4. Darrell Blaylock, M.D. Appellee 5. Levi Boone, III, Esq. Kelvin Pulley, Esq. Boone Law Firm, LLP Attorneys for Janice Y. Davis and The Estate of Richard B. Davis 6. Scott Phillips, Esq. G. Weathers Virden, Jr., Esq. Campbell Delong, LLP Attorneys for Delta Regional Medical Center 7. J. Michael Coleman, Esq. Jacob O. Malatesta, Esq. Hagwood Adelman Tipton PC Attorneys for Defendant/Appellant ii

3 8. A. Bryan Smith, III, Esq. Page, Kruger & Holland P.O. Box 1163 Jackson, MS Honorable W. Ashley Hines Circuit Court Judge DARRELL N. BLAYLOCK, M.D., Appellee /s/ Jacob O. Malatesta CARL HAGWOOD (MS Bar No. 2039) JACOB O. MALATESTA (MS Bar No ) iii

4 TABLE OF CONTENTS Certificate of Interested Persons... ii Table of Contents... iv Table of Authorities...v Oral Argument Requested...1 Statement of the Issues...2 Statement of the Case...3 Statement of the Facts...4 A. Mr. Davis s Health Condition and His Subsequent Death...4 B. The Notice of Claim Letters...5 C. The Complaints...6 D. The Motions to Dismiss...8 E. The Motions to Reconsider...11 Summary of the Argument...12 Arguments and Authorities...13 A. Standard of Review B. Dismissal was Mandated Because the Suit Against Blaylock was Pending at the Same Time as a Previously Filed Wrongful Death Complaint...14 C. The MTCA and (15) Notice Of Claim Requirements are Irrelevant...23 D. Consolidation was Never Requested and Would Not Have been Proper...29 E. Davis Did Not Even Attempt to Make a Proper Rule 59 or 60 Showing Conclusion...34 Certificate of Service...36 iv

5 TABLE OF AUTHORITIES CASES: Alexander v. Elzie, 621 So.2d *0* (Miss. 1992)...22, 30 Blake v. Wilson, 962 So. 2d 705 (Miss. Ct. App. 2007)...27 Boyles v. Schlumberger Tech. Corp, 792 So. 2d 262 (Miss. 2001)...33 Briere v. S. Cent. Reg l Med. Ctr., 3 So. 3d 126 (Miss. 2009)...18, 19, 20, 22, 28, 35 Brooks v. Roberts, 882 So.2d 229 (Miss. 2004)...13, 14, 33 Bruce v. Bruce, 587 So.2d 898 (Miss. 1991)...14 Carpenter v. Kenneth Thompson Builder, Inc., 186 So. 3d 820 (Miss. 2014)...21 Caves v. Yarbrough, 991 So. 2d 142 (Miss. 2008)...24 Copiah Cty. Sch. Dist. v. Buckner, 61 So. 3d 162 (Miss. 2011)...25 Crosthwaite v. South Health Corp. of Houston, Inc. 94 So. 3d 1070 (Miss. 2012)...27 Curtis v. Citibank, N.A., 226 F. 3d 133 (2 nd Cir. 2000)...21 Forest Hill Nursing Ctr. & Long Term Care Mgmt., LLC v. Brister, 992 So.2d 1179 (Miss. 2008)...13 Franklin v. Franklin, 858 So. 2d 110 (Miss. 2003)...10, 16, 17 Fulton v. Mississippi Farm Bureau Cas. Ins. Co., 105 So. 3d 284 (Miss. 2012)...33 Harrison v. Chandler-Sampson Ins., Inc., 891 So.2d 224 (Miss. 2005)...22, 29 Jackson v. Hodge, 911 So. 2d 625 (Miss. Ct. App. 2005)...27 Kimball v. Louisville and Nat l R.R. Co., 94 Miss 396, 48 So. 230 (1909)...22, 29 King v. American RV Centers, Inc., 862 So.2d 558 (Miss.Ct. App. 2003)...21, 22, 29 Lampkin v. Thrash, 81 So. 3d 1193 (Miss. Ct. App. 2012)...13, 14 Long v. McKinney, 897 So. 2d 160 (Miss. 2004)...2, 3, 11, 12, 13, 15, 16, 17, 18, 19, 20, 22, 30, 31, 32, 34, 35 v

6 Mobile, Jackson & Kansas City Railroad v. Hicks, 91 Miss. 273, 46 So. 360 (1908)...10, 16, 17 Page v. Univ. of S. Mississippi, 878 So. 2d 1003 (Miss. 2004)...25 Palmer v. Grand Casinos of Mississippi, Inc., 744 So. 2d 745 (Miss. 1999)...33, 34 Perkins v. Perkins, 787 So.2d 1256 (Miss. 2001)...14 Proli v. Hathorn, 928 So. 2d 169 (Miss. 2006)...28 Sauvage v. Meadowcrest Living Center, LLC, 28 So. 3d 589 (Miss. 2010)...19, 20, 22, 35 Scaggs v. GPCH-GP, Inc., 931 So. 2d 1274 (Miss. 2006)...28 Turnbow Oil Investments v. McIntosh, 873 So. 2d 960 (Miss. 2004)...13, 14 U. of Miss. Med. Ctr. v. McGee, 999 So. 2d 837 (Miss. 2008)...24, 25 Wilner v. White, 929 So. 2d 315 (Miss. 2006)...21, 22, 31 Wilner v. White, 929 So. 2d 343 (Miss. Ct. App. 2005)...21 STATUTES: MISS. R. APP. P Mississippi Rules of Civil Procedure Mississippi Rules of Civil Procedure , 13, 32, 33, 35 Mississippi Rules of Civil Procedure , 13, 32, 33, 34, 35 Miss. Code Ann , 14, 24 Miss. Code Ann , 3, 6, 12, 18, 22, 23, 24, 25, 28, 29 Miss. Code Ann , 27 Miss. Code Ann , 25 Miss. Code Ann , 3, 6, 12, 22, 23, 27, 28, 29 vi

7 ORAL ARGUMENT REQUESTED In accordance with MISS. R. APP. P. 34, Appellees would request oral argument. Oral argument would allow a full discussion of the facts and case law in the case. 1

8 STATEMENT OF THE ISSUES 1. The trial court was obligated to dismiss this wrongful death case pursuant to the clear mandate from this Court in Long v. McKinney to dismiss any wrongful death complaint pending at the same time as a previously filed wrongful death complaint. 2. Plaintiff s argument that the waiting times found in the Notice of Claim provisions of the Mississippi Tort Claims Act and Miss. Code Ann (15) is completely without merit. 3. Since the Plaintiff never filed a Motion to Consolidate in the case sub judice and this Court cannot grant relief that was not sought at the trial court level, then Davis s Appeal necessarily fails. 4. The trial court was prohibited from consolidating this case with any other wrongful death case by the clear mandate from this Court in Long v. McKinney. 2

9 STATEMENT OF THE CASE The Estate of Richard B. Davis, by and through its Executrix, Janice Y. Davis ( Davis ), apparently wanted to file suit alleging that the negligent medical care provided to Mr. Richard B. Davis by Dr. William H. Barber ( Barber ), Dr. Darrell Blaylock ( Blaylock ), and Delta Regional Medical Center ( DRMC ) resulted in the wrongful death of Mr. Davis. What happened next was nothing short of a procedural nightmare of Davis s own making. After sending numerous Notice of Claim letters to Barber, Blaylock, and DRMC, Davis filed four separate lawsuits for the wrongful death of Mr. Davis. All of the wrongful death suits were filed by the same plaintiff, Davis, in the same court, Washington County Circuit Court. The first suit was filed solely against Barber. The next two were filed on the same day, one solely against Blaylock and one solely against DRMC. Davis mercifully filed a fourth and final complaint against DRMC, representing a second complaint against the same defendant. Again, all of these suits were for the wrongful death of Mr. Davis. Motions to Dismiss were filed in the three improperly filed suits based on this Court s bright-line rules set forth in Long v. McKinney, 897 So. 2d 160 (Miss. 2004). Davis then filed a Motion to Combine and Amend the Complaint only in the suits filed against DRMC and argued that the Notice of Claim provisions found in the Mississippi Tort Claims Act, Miss. Code Ann , et seq. ( MTCA ), and Miss. Code Ann (15) prevented him from filing one suit against Barber, Blaylock, and DRMC on the same date. The trial court rejected Davis s completely incoherent argument and, pursuant to Long v. McKinney, dismissed all but the suit filed against Dr. Barber. Davis then filed three separate Motions to Modify Orders and/or for Reconsideration in each of the three dismissed cases 3

10 claiming that the Court should have considered the Motion to Combine and Amend the Complaint before dismissing the cases. In the case sub judice, the trial court noted that no such Motion to Combine and Amend the Complaint had been filed. Otherwise, the trial court rejected Davis s remaining request for modification or reconsideration of the orders of dismissal. Davis has now appealed each of the three cases, making the very same incoherent arguments as he did at the Circuit Court. For the reasons explained below as well as the reasons noted by the trial court, this Court should affirm the trial court s orders of dismissal. STATEMENT OF THE FACTS The relevant and operative facts of this appeal should be confined to the pleadings filed solely in the case sub judice and the Complaint filed by Davis against Blaylock. However, considering the arguments made by Davis at the trial court and on appeal, as well as this Court s Order consolidating this matter with two other appeals, it is impossible to show just how logically inconsistent and flawed Davis s arguments are without addressing the complicated facts and tortured procedural history of all four wrongful death cases filed by Davis. A. Mr. Davis s Health Condition and His Subsequent Death On September 16, 2013, Mr. Davis presented to the Emergency Department (hereinafter referred to as ED or ER ) at DRMC complaining of abdominal pain and discomfort with no bowel movement in three days. Complaint, R Mr. Davis was diagnosed with abdominal pain, provided with the medication Miralax, and instructed to report back to the ER if there was no improvement in his condition. Id. Mr. Davis returned to the ER at DRMC on September 17, 2013, again complaining of abdominal pain. R Mr. Davis was evaluated by the ER physician and admitted to the 4

11 hospital based on a diagnosis of bowel obstruction. Id. Barber was consulted based on a potential colonic obstruction. Id. On September 18, 2013, Barber performed a total abdominal colectomy on Mr. Davis. R After surgery, Mr. Davis allegedly came under the care of Blaylock. Id. at Davis would later allege that Mr. Davis came under the care of both Blaylock and the nurse employees of DRMC. See R Davis would also allege that, at some point after his surgery, Mr. Davis began to exhibit signs and symptoms of significant complications related to the surgery. R On September 21, 2013, Mr. Davis left this life as an alleged result of those complications. Id. B. The Notice of Claim Letters On Friday, August 15, 2014, Davis 2 sent correspondence to Barber (the Barber Notice of Claim ) indicating that Davis was making a claim against Barber for the alleged wrongful death of Mr. Davis. R On that same day, Friday, August 15, 2014, counsel for Davis sent separate correspondence to DRMC ( DRMC Notice of Claim I ). R The contents of 1 Davis made these allegations in two of four separate complaints. As noted, in its Motion to Amend the Record and Motion to Reconsider Order Denying Motion to Amend the Record, this Appeal concerns four separate wrongful death complaints filed by Davis, all of which were originally attached to Blaylock s Motion to Dismiss. However, the complaints initiating the other causes of action (referred to as Barber-0134, DRMC-0140, and DRMC-0146 infra) were incidentally left out of the record on appeal. In an attempt to make the record more clear, Blaylock has requested that these complaints be included in the record and refers to the Bates number on the proposed supplement to the Record. In the even that this Court denies the Motion to Reconsider, further support for this fact can be found in the Appellant s Brief, pg It should be noted that the Notice of Claim letters were sent on behalf of The Estate of Richard B. Davis. It is not clear from any of the correspondence or the Record how this is possible considering that Letters Testamentary were not issued until September 30, 2014, weeks after all of the Notice of Claim letters had been sent. Solely for purposes of this appeal, and for clarity, Blaylock will assume that the Estate of Richard Davis and the Estate of Richard B. Davis by and Through Its Executrix Janice Y. Davis are one in the same and will refer to both as Davis. 5

12 DRMC Notice of Claim I are not contained in the record. On August 18, 2014, the DRMC Notice of Claim I was received by DRMC. R On September 8, 2014, Davis apparently sent a second correspondence to DRMC ( DRMC Notice of Claim II ). R Again, the contents of DRMC Notice of Claim II are not available from the record. Nevertheless, on September 11, 2014, DRMC Notice of Claim II was received by DRMC. Id. On September 18, 2014, Davis apparently sent yet another correspondence to both DRMC and Blaylock ( DRMC/Blaylock Notice of Claim ). R Predictably, the contents of DRMC/Blaylock Notice of Claim II are not clear from the record. The DRMC/Blaylock Notice of Claim was received by DRMC on September 19, R On that same day, a separate copy of the DRMC/Blaylock Notice of Claim was also received by Ms. Amber Dearman, a woman who works at the same office as Dr. Blaylock. Id. Davis would later allege that the Barber Notice of Claim, DRMC Notice of Claim I, DRMC Notice of Claim II, and the DRMC/Blaylock Notice of Claim represented Notice of Claim letter(s) sent pursuant to either the MTCA or (15) and that the letter(s) put Barber, DRMC, and Blaylock on notice that Davis intended to file suit for the wrongful death of Mr. Davis based on the medical negligence of Dr. Blaylock, Dr. Barber, and other employees of DRMC. R C. The Complaints On November 4, 2014, Davis filed a Complaint against Barber in the Circuit Court of Washington County which began Cause No CI (hereinafter referred to as Barber ). R The Barber-0134 Complaint alleged a cause of action for the wrongful 3 In the event this Court denies Blaylock s Motion to Reconsider, further evidence of the Complaint against Barber can be found in Appellant s Brief, pg. 8. 6

13 death of Mr. Davis. Id. More specifically, the Barber-0134 Complaint stated that Mr. Davis died causally related to complications from the surgeries [performed by Barber] that were curable in the absence of negligence. R There were no allegations in the Barber-0134 Complaint that any other person was liable or responsible for the death of Mr. Davis other than Barber. See, id. at Dr. Blaylock was not even mentioned. Id. On November 19, 2014, Davis filed a Complaint against Blaylock in the Circuit Court of Washington County which began Cause No CI (hereinafter referred to as Blaylock ). R The Blaylock-0139 Complaint also alleged a cause of action for the wrongful death of Mr. Davis. Id. The Blaylock-0139 Complaint alleged that, after the very same surgery mentioned in Barber-0134, Mr. Davis came under the care of Dr. Blaylock and, thereafter, began to exhibit signs and symptoms of significant complications related to the [Barber] surgery. R Davis then alleged, much like he did in the Barber-0134 case, that Mr. Davis died causally related to complications from the surgeries that were curable in the absence of negligence. Id. On that same day, November 19, 2014, Davis filed a Complaint against DRMC in the Circuit Court of Washington County which began Cause No CI (hereinafter referred to as DRMC-0140 ). R The DRMC-0140 Complaint also alleged a cause of action for the wrongful death of Mr. Davis. See, id. The DRMC-0140 Complaint alleged substantially the same facts as those alleged in Barber-0134 and Blaylock-0139 but also alleged that DRMC was liable for the actions of Dr. Barber and Dr. Blaylock because they were employees of DRMC. R Davis only referred to the actions of Dr. Barber and Dr. Blaylock. Id. No other alleged employee of DRMC was referenced. See, R In the event this Court denies Blaylock s Motion to Reconsider, further evidence of this Complaint against DRMC can be found in Appellant s Brief, pg. 8. 7

14 On December 10, 2014, apparently unsatisfied with just three (3) separate wrongful death lawsuits, Davis filed her fourth wrongful death suit, this time again against DRMC in the Circuit Court of Washington County which began Cause No CI (hereinafter referred to as DRMC-0146 ). R The DRMC-0146 Complaint also alleged a cause of action for the wrongful death of Mr. Davis. See, id. The DRMC-0146 complaint alleged substantially the same facts as those alleged in the Barber-0134, Blaylock-0139, and DRMC Id. The complaint filed in DRMC-0146 differed from the complaint filed in DRMC-0140 in that it alleged a cause of action for nursing staff negligence as opposed to one against Blaylock and Barber. R D. The Motions to Dismiss On January 12, 2015, Blaylock filed his answer to the Complaint filed in Blaylock R Counsel for Blaylock later became aware of, not only Barber-0134, but also DRMC-0140 and DRMC As noted in the Appellee s Brief 6 filed by DRMC, on January 23, 2015, DRMC filed identical Motions to Dismiss and/or for Summary in DRMC-0140 and DRMC-0146, asserting that there can only be one suit for a wrongful death, that DRMC-0140 and DRMC-0146 were filed after Barber-0134, and that, as a result, DRMC-0140 and DRMC-0146 should be dismissed. See Appellee s Brief filed by DRMC in No CA-01425, pg. 3. On April 13, 2015, Davis served a Response to DRMC s Motion to Dismiss or Motion for Summary Judgment indicating therein that Barber-0134, Blaylock-0139, DRMC-0140, and 5 In the event this Court denies Blaylock s Motion to Reconsider, further evidence of this Complaint against DRMC can be found in Appellant s Brief, pg On July 20, 2016, this Court entered an Order Consolidating this matter with 2015-CA SCT and 2015-CA SCT. Due to the limited record in this Appeal, and in an effort to present all of the facts, Blaylock will refer to the Briefs filed by DRMC. 8

15 DRMC-0146 should be consolidated. R Davis also referred to a Motion to Combine and to Amend the Complaint. Id. Davis argued that all of the subject causes of action should be joined in a single action. Id. at For reasons that are not clear, Davis served counsel for Blaylock with a copy of its Response to DRMC s Motion. R Blaylock then became aware of Barber-0134, as well as DRMC-0140 and DRMC-0149, and came to understand that Davis was attempting to consolidate or combine all four of the subject wrongful death claims. R Counsel for Blaylock later discovered that a Motion to Combine and to Amend the Complaint was filed in both DRMC-0140 and DRMC-0146, but not Blaylock-0139 or Barber Id. at , After receiving the Response to DRMC s Motion and after becoming aware of the previously filed wrongful death Complaints, Blaylock filed his own Motion to Dismiss for failure to state a claim. R Having received no timely response to the Motion to Dismiss, on June 9, 2015, Blaylock noticed the above-referenced Motion to Dismiss for a hearing to take place on June 23, R In the event this Court denies Blaylock s Motion to Reconsider, further evidence of this Response to DRMC s Motion can be found at Appellee s Brief filed by DRMC in No CA , pg. 3, and the record in that case at R In the event this Court denies Blaylock s Motion to Reconsider, further evidence of this Response to DRMC s Motion can be found at Appellee s Brief filed by DRMC in No CA , pg. 3, and the record in that case at R In the event this Court denies Blaylock s Motion to Reconsider, further evidence of this Response to DRMC s Motion can be found at Appellee s Brief filed by DRMC in No CA , pg. 3, and the record in that case at R While counsel for Blaylock was listed in the Certificate of Service for the Motions to Combine and Amend the Complaint, counsel for Blaylock did not receive a copy of these Motions. 9

16 On June 18, 2015, Davis served a Response to the Motion to Dismiss filed in Blaylock R Davis made the same argument that she made in her Response to DRMC, her Motions to Combine, and her Appellant s Brief, that because the statutes requiring Notice of Claim Letters be received at least 60 days prior to suing a physician whereas a Notice of Claim to sue a community hospital requires 90 days the instant lawsuits against the physicians and the hospital could not be filed at the same time. R Davis also argued that all four cases should be consolidated based on Mobile, Jackson & Kansas City Railroad v. Hicks, 91 Miss. 273, 46 So. 360 (1908), and Franklin v. Franklin, 858 So. 2d 110 (Miss. 2003). R Davis did refer to a Motion to Amend/Combine Cases indicating that it had been attached as Exhibit A to the Response. R However, Exhibit A to the Response to Motion to Dismiss filed in Blaylock-0139 was not a Motion to Amend/Combine Cases but was a copy of a proposed Amended Complaint with no case number identified thereon. See R Otherwise, Davis provided no additional facts or authorities to support Davis s arguments. On that same date, Davis served a Notice of Hearing in the DRMC-0140 matter noticing a Motion to Amend the Complaint for hearing on June 23, R No Motion to Amend the Complaint had been filed in Blaylock-0139, and no other Notice of Hearing was ever served by Davis. On June 22, 2015, Dr. Blaylock served a Rebuttal in Support of the Motion to Dismiss. R In this Rebuttal, Dr. Blaylock dispelled the myth that Davis could not have filed her Complaint against Barber, Blaylock, and DRMC at the same time by providing a specific time period where Davis could have filed a single Complaint against Barber, Blaylock, and DRMC. 11 R On June 23, 2015, a hearing was held on the Motions to Dismiss filed by 11 As will be shown herein, the subject time period stated in the Rebuttal Memorandum was incorrect. The time period was actually much larger. 10

17 Blaylock in Blaylock-0139, and DRMC in DRMC-0140 and DRMC-0146, as well as the Motion to Combine and/or Amend filed by Davis in DRMC See Transcript of Hearing, pg. 1. On August 13, 2015, the trial court entered separate orders in Blaylock-0139, DRMC- 0140, and DRMC-014, dismissing each of them in their entirety. R As for the Blaylock Order, the trial court noted that provides that there is only one suit for wrongful death; that pursuant to Long v. McKinney, Barber-0134 was the only valid wrongful death case filed ; that the three remaining cases had no legal effect; and, pursuant to Long v. McKinney, none of the cases could be consolidated. Id. As a result, Blaylock-0139, DRMC-0140, and DRMC-014 were all dismissed. E. The Motions to Reconsider On August 19, 2015, Davis filed three separate, but substantially similar, Motions to Modify and/or for Reconsideration in Blaylock-0139, DRMC-0140, and DRMC See, Appellee s Brief at pg. 9. In Blaylock-0139, Davis argued that the trial court had not ruled on the Plaintiff s Motion to Combine and Amend Complaint before determining if the Blaylock case should be dismissed and requesting that the trial court reconsider its prior ruling dismissing the case before determining the outcome of the Motion to Combine and Amend the Complaint. R On August 25, 2015, Blaylock responded to the Motion to Reconsider, noting that no Motion to Combine and Amend the Complaint had been filed in Blaylock R As a result, no such motion could be granted in Blaylock Id. Further, there was no basis for an amendment or modification of the subject Order dismissing Davis s Complaint against Dr. Blaylock. Id. 11

18 On August 31, 2015, the trial court entered an Order denying Davis s Motion to Modify and/or Reconsider in Blaylock R The trial court noted that no Motion to Combine and Amend was filed in Blaylock Id. Finally, there was nothing in Davis s Motion which could provide Davis with the relief afforded by either Rule 59 or Rule 60 of the Mississippi Rules of Civil Procedure. Id. On September 8, 2015, Davis filed Notices of Appeal in the Blaylock-0139, DRMC-0140, and DRMC-0146 matters. SUMMARY OF THE ARGUMENT Since this Court s decision in Long v. McKinney, this Court has made it perfectly clear that there can be only one suit for wrongful death, and any suit pending concurrently with the first filed wrongful death suit must be dismissed. Davis filed four suits for wrongful death against three separate Defendants and refused to dismiss any of them, opting instead to file inconsistent Motions to Combine in two of the suits. Pursuant to this Court s unambiguously clear, bright-line rules set forth in Long v. McKinney, the trial court properly dismissed the second, third, and fourth filed wrongful death suits. Counsel for Blaylock cannot fully explain the motives or logic associated with Davis s filing four separate wrongful death lawsuits. However, whatever reasons Davis had for filing four separate suits, they had nothing to do with any Notice of Claim requirements. Davis s argument that the Notice of Claim provisions found in MTCA and Miss. Code Ann (15) required him to file four separate wrongful death lawsuits makes absolutely no sense and can be easily proven to be empirically and objectively wrong. Finally, Davis s argument that the trial court should have considered Davis s Motion to Combine and Amend Complaint prior to dismissing Blaylock-0139 fails. Davis did not file a 12

19 Motion to Combine and Amend in Blaylock Next, this Court s unambiguous, clear, brightline rules set forth in Long v. McKinney specifically provide that joinder, not consolidation or combination, is the proper way to resolve additional wrongful death complaints such as those against separate defendants. This Court has unambiguously held that the consolidation or combination proposed by Davis is specifically prohibited. As a result, the trial court did not err in dismissing Blaylock-0139 and denying Davis s Motion to Modify and/or Reconsider. ARGUMENTS AND AUTHORITIES A. Standard of Review Davis appeals from the trial court s grant of a Motion to Dismiss and the trial court s denial of Davis s Motion to Modify and/or Reconsider. This Court reviews de novo a trial court's grant or denial of a motion to dismiss. Forest Hill Nursing Ctr. & Long Term Care Mgmt., LLC v. Brister, 992 So.2d 1179, 1187 (Miss. 2008). As will be shown herein, it would have been error, and in complete disregard for this Court s ruling in Long v. McKinney, for the Court to do anything but dismiss the underlying case. Therefore, this Court should affirm the trial court s dismissal of Blaylock Davis s Motion to Modify Order and/or Reconsideration cites no rule under which it was filed. However, the trial court noted that the only authority by which [the trial court] could grant the relief sought by the Plaintiff would be under M.R.C.P. 59 or M.R.C.P. 60. Indeed, a motion for reconsideration is treated as a motion to amend the judgment pursuant to Rule 59(e) of the Mississippi Rules of Civil Procedure. Lampkin v. Thrash, 81 So. 3d 1193, 1199 (Miss. Ct. App. 2012). This Court reviews a circuit court's denial of a Rule 59 motion under an abuseof-discretion standard. Id. (citing Brooks v. Roberts, 882 So.2d 229, 233 ( 15) (Miss.2004)). Similarly, this Court employs an abuse of discretion standard of review when examining a court's 13

20 decision to grant or deny relief pursuant to M.R.C.P. 60. R.N. Turnbow Oil Investments v. McIntosh, 873 So. 2d 960, (Miss. 2004) (citing Perkins v. Perkins, 787 So.2d 1256, (Miss.2001); Bruce v. Bruce, 587 So.2d 898 (Miss.1991)). The Circuit Court s decision not to grant relief under Rule 59 was not manifestly wrong or clearly erroneous because Davis failed to 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. Lampkin, 81 So. 3d at 1199; see also, Brooks, 882 So.2d at 233. Davis s request for relief under Rule 60 was not manifestly wrong or clearly erroneous because Davis did not even argue, much less show, that any of the reasons for relief as enumerated in Rule 60 were applicable. Thus, this Court should affirm the Circuit Court s denial of Davis s Motion to Modify Order and/or Reconsideration. B. Dismissal was Mandated Because the Suit Against Blaylock was Pending at the Same Time as a Previously Filed Wrongful Death Complaint Mississippi s Wrongful Death Statute provides that there can only be one suit for the same death which shall ensue of all parties concerned. See Miss. Code Ann In other words, there can be one, AND ONLY ONE, suit for a wrongful death. In direct contradiction to the Wrongful Death Statute, Davis filed FOUR (4) separate Complaints, thereby creating four separate suits for wrongful death. Each wrongful death Complaint was filed by the very same counsel for the exact same Plaintiff, Davis. Each wrongful death Complaint involves the same wrongful death, that of Mr. Davis. As should be obvious, three (3) of these suits should have never been filed. Nevertheless, four (4) suits were filed, leaving the trial court with the determination of what to do with the suits. Davis asked for consolidation or combination, and Blaylock requested dismissal. Because this Court has provided unambiguous, specific, and direct 14

21 instruction on what the trial court was supposed to do when there is more than one suit pending for wrongful death, the trial court did what was required of it by dismissing every suit filed except for the first one. As this Court recognized in the seminal case of Long v. McKinney, prior to 2004, no area of the law has historically provided more muddled, misquoted and misunderstood procedural rules, than civil claims for wrongful death. Long, 897 So. 2d at According to this Court, in the waning years of the Nineteenth Century, the wrongful death statute took a wrong turn into procedural territory where it had no license to travel. Id. at 163. Due to these inconsistent procedural rules, there was a so-called perennial scrap over the rules. Id. In Long, this Court attempted to address and clarify several of these problems and to provide guidance for these issues to the bar and judiciary. Id. In other words, this Court s decision in Long revised and clarified several century-old procedural problems associated with the procedural aspects of the wrongful death statute and provided numerous bright-line rules for the proper procedure under the wrongful death statute. Id. One of these century-old and unresolved procedural problems addressed in Long v. McKinney was multiple wrongful death lawsuits and priority jurisdiction. More specifically, when two (or more) wrongful death suits have been filed, which one had priority? The Mississippi Supreme Court provided a simple, bright-line rule for this question by stating, The first court to properly take jurisdiction of a wrongful death action in our state courts shall, so long as that action is pending, have exclusive jurisdiction, and any other subsequently filed action for the same death shall be of no effect. Id. at 173 (emphasis added). With this simple rule in mind, this Court then specifically addressed the very issue of what a trial court should do when more than one wrongful death suit is pending at the same time. 15

22 The following, unabridged, paragraph appears in Long under the heading 2. Consolidation and Joinder : Consolidation of suits presupposes that there are two suits to consolidate. Because we hold that wrongful death claims must be brought in a single suit, there cannot be two suits to consolidate. Where, as here, a second suit is filed, it is of no effect and should be dismissed, as discussed supra. The rights of all claimants are preserved in the original suit and are fully addressed by joinder. Each claimant, as a matter of right, may join in the litigation and participate as fully as any other claimant. The interests of claimants not joining in shall be represented by counsel for the claimant filing the suit. See discussion of choice of attorneys and payment of attorney fees infra. Long, 897 So. 2d at 174 (emphasis added). Thus, the post-long wrongful death rules state simply and unequivocally that any wrongful death suit filed after the first wrongful death suit must be dismissed, not consolidated. In the case sub judice, the trial court was faced with an unnecessarily complicated set of facts that could be resolved with a very simple application of a very clear rule. Davis had filed four wrongful death complaints. The first-filed complaint was Barber Pursuant to Long v. McKinney, when Barber-0135 was filed, the Circuit Court of Washington County took exclusive jurisdiction of the claims for wrongful death of Mr. Davis. Thereafter, three additional wrongful death complaints for the same death were filed against three separate defendants. The second complaint was against Dr. Blaylock. Since Blaylock-0139, DRMC-0140, and DRMC-0146 were all filed AFTER the first complaint, those complaints were of no effect and should be dismissed. Long, 897 So. 2d at 174. That is exactly what the trial court did. As a result, the trial court s decision to dismiss Blaylock-0139 was correct. As noted above, Davis relied upon Mobile and Franklin in Davis s Response to Motion to Dismiss and at the hearing on the Motions to Dismiss. Davis appears to have abandoned this argument in her Brief. This is likely because Mobile and Franklin, two cases decided before 16

23 Long v. McKinney, were not well-reasoned when they were decided and were overruled by Long v. McKinney. Nevertheless, it is important to note why Davis s arguments, as well as the reasoning in Mobile and Franklin, should be rejected. In Franklin this Court did allow two concurrently pending wrongful death cases to be consolidated or joined. See, Franklin, 858 So. 2d at 115. However, Franklin was decided in 2003, before this Court revised the rules associated with wrongful death claims in the seminal 2004 decision of Long v. McKinney. Franklin also cites a single case, Mobile, for authority which allows two currently pending wrongful death suits to be joined. Id. (citing Mobile, 91 Miss. 273, 46 So. at 397). The Mobile case is from 1908 and harkens back to time when the wrongful death statute took the very wrong turn that this Court discussed and corrected in Long. Decisions such as Mobile necessitated the very re-writing of the rules found in Long v. McKinney. Were this Court to determine that Mobile and Franklin were controlling, that decision would return the bench and bar to the tenebrous days before Long v. McKinney, and this Court can once again expect another series of perennial scraps over the rules. Thus, the rules pronounced in Long v. McKinney must remain the law because they are the law. Davis argues in her brief that Long is distinguishable from the instant case because Long involved different wrongful death beneficiaries who filed numerous complaints against the same defendants but that Barber-0134, Blaylock-0139, DRMC-0140, and DRMC-0146 involve the same set of wrongful death beneficiaries bringing separate suits against different defendants. Appellant s Brief, pg. 6. This interpretation of Long being inapplicable to the current set of facts is incorrect for two reasons. First, as noted above, this Court in Long was attempting to address and clarify several procedural problems in order to provide guidance for these issues to the bar and judiciary. 17

24 Long, 897 So. 2d at 163. In other words, this Court in Long was not simply addressing the facts presented in Long but providing the bar and judiciary with broad-based, bright-line, procedural rules applicable to all wrongful death cases. Thus, the rules set forth in Long are not just applicable to cases like Long but to all wrongful death cases, including the case sub judice. Second, this Court has twice clarified Long and, in both cases, had the opportunity to adopt Davis s position but abstained from doing so. In Briere v. S. Cent. Reg'l Med. Ctr., 3 So. 3d 126 (Miss. 2009), this Court addressed two wrongful death suits filed by the same plaintiffs in the same court against different defendants. See Briere, So. 3d at 126. Briere involved the death of Ms. Hollingsworth who died after suffering a broken hip. Id. at 127. Initially, it was thought that the broken hip occurred at Cottonwood Manor, a nursing facility not protected by the MTCA, so Briere, Ms. Hollingsworth s wrongful death beneficiary, filed a wrongful death Complaint solely against Cottonwood. Id. Briere later discovered that the broken hip occurred at South Central Regional Medical Center ( SCRMC ), an entity protected by the MTCA, and filed a completely different complaint against SCRMC. Id. at 127. Much like Blaylock, after SCRMC learned that the first Complaint against Cottonwood Manor was pending, SCRMC moved to dismiss the wrongful death Complaint filed against SCRMC. Briere, So. 3d at 128. SRCMC moved to dismiss for the same reason that Blaylock did: the Mississippi Wrongful Death Statute allows only one suit for wrongful death, [and since there were two wrongful death suits pending, the] Complaint failed to state a claim upon which relief could be granted. Briere, So. 3d at 128. At a hearing on the Motion to Dismiss Briere, apparently realizing that the complaint filed against Cottonwood was no longer necessary, voluntarily dismissed the first filed complaint against Cottonwood, so that only one suit would be pending, the suit against SCRMC. Id. Nevertheless, the trial court dismissed the suit against 18

25 SCRMC based on the previously filed complaint against Cottonwood. Id. On appeal, this Court reversed the trial court s decision, but NOT because the lawsuit was filed by the same plaintiff against different defendants. Id. This Court noted that the first filed complaint was dismissed before the Court decided the Motion to Dismiss filed by SCRMC. Id. at 129. Thus, at the time the Motion to Dismiss was decided by the trial court, there was only one wrongful death suit pending, that suit against SCRMC. Id. at 128. In Briere, this Court specifically clarif[ied] Long and held that the wrongful-death statute does not require that a second suit be dismissed solely because it was, at some point, pending at the same time as a previously-filed suit. Briere, 3 So. 3d at 129. This Court noted that Long s mandate only applied to situations where two wrongful-death cases are then currently pending. Id. (emphasis in original). Again, Briere was the plaintiff in both suits against two different defendants. Id. at 127. Yet, this Court tacitly held that, if Briere had not filed the voluntary dismissal, then the second suit would have been properly dismissed. See, id. Thus, Davis s argument, that Long applies only to two suits by different wrongful death beneficiaries against the same defendants, has no basis in the law. More recently, in Sauvage v. Meadowcrest Living Center, LLC, 28 So. 3d 589 (Miss. 2010), this Court again addressed a situation in which the very same plaintiffs, Don Sauvage and Gene J. Sauvage (the Sauvages ), had filed two separate wrongful death suits, one in Mississippi and one in Louisiana, for the same wrongful death. Sauvage, 28 So. 3d at 591. In Sauvage, the Court noted that, at the time the Sauvages filed their wrongful-death suit in Hinds County, another suit for the same death was pending in Louisiana. Id. at 595. Further, the Louisiana action remained pending at the time the trial court determined the motion to dismiss. Id. This Court then reiterated its rulings in Long, stating: 19

26 In Long, the Court noted that the statutory language allows but one suit for the same death, for the benefit of all concerned parties. The Court observed that competing wrongful-death suits usually will involve the same parties and subject matter; therefore, a logical extension of the principle of priority jurisdiction requires that all claims for the wrongful death of a person be litigated in the same suit and in the same court. Accordingly, the Court held that the first court to properly take jurisdiction of a wrongful-death action in our state courts shall, so long as that action is pending, have exclusive jurisdiction, and any other subsequently-filed action for the same death shall be of no effect. Id. at 594 (citing Long, 897 So. 2d at ) (internal citations omitted). This Court, noting that these were fundamental procedural rules for wrongful-death litigation in this state, specifically and unambiguously stated, Long applies when two wrongful-death suits are currently pending at the time the trial court decides a motion to dismiss. Id. at Again, this was true even though both Louisiana and Mississippi cases were filed by the very same plaintiffs, the Sauvages. There can be no dispute that the first filed suit, Barber-0134, was still pending when the trial court heard and decided the Motions to Dismiss filed in Blaylock-0139, DRMC-0140, and DRMC The fundamental procedural rules for wrongful death litigation in Mississippi, as stated in Long and clarified in Briere and Sauvage, apply directly to the case sub judice. Davis s argument, made numerous times in Davis s Brief, that the first to file rule applies [only] to different heirs filing lawsuits regarding the same wrongful death claim is just flat-out wrong. See Appellee s Brief, pg. 8, 9. Thus, dismissal of the Blaylock-0139 Complaint, regardless of the fact that there was a single plaintiff and different cases against several defendants, was mandated by this Court s bright-line rule in Long, as well as its holdings in Briere and Sauvage. This would be true even if this were not a wrongful death case. The course of action taken by Davis has been specifically prohibited by Mississippi s longstanding rule against claim-splitting. This Court has specifically held that plaintiffs have no 20

27 right to maintain two actions on the same subject in the same court, against the same defendant at the same time because to do so would violate the rule against claim-splitting. Carpenter v. Kenneth Thompson Builder, Inc., 186 So. 3d 820, 824 (Miss. 2014) (quoting Curtis v. Citibank, N.A., 226 F.3d 133, 139 (2nd Cir.2000)). The rule against claim-splitting requires a plaintiff to assert all of its causes of action arising from a common set of facts in one lawsuit. Id. By spreading claims around in multiple lawsuits in other courts or before other judges, parties waste scarce judicial resources and undermine the efficient and comprehensive disposition of cases. Id. (internal citations and quotations omitted). Indeed, this Court has specifically held that allowing a plaintiff to name new parties to a cause of action in a separate complaint, then moving to consolidate the second filed action with the first, is encouraging that party to ignore the law. Wilner v. White, 929 So. 2d 315, 320 (Miss. 2006) (referred to as Wilner IV ). In King v. American RV Centers, Inc., 862 So.2d 558 (Miss. Ct. App. 2003), the Mississippi Court of Appeals held that the trial court erred in dismissing an Amended Complaint which was filed prior to the expiration of the statute of limitations even though there was no original complaint to amend. Id. at 562 ( 20-21). The Court of Appeals found that, since the plaintiff could have filed a separate original Complaint naming new parties, it was error for the trial court not to allow the subsequent amendment. Id. Relying on King, the Court of Appeals later held that a circuit court had erred in not allowing an Amended Complaint be filed because the plaintiff could have just named the four new parties in a separate, original complaint and moved to consolidate the two cases. Wilner v. White, 929 So. 2d 343, 350 (Miss. Ct. App. 2005), rev'd, 929 So. 2d 315 (Miss. 2006) (referred to as Wilner III ). This Court later reversed the Court of Appeals holding in Wilner III and overruled King stating that naming new parties in a separate Complaint offends the long-standing principle of 21

28 law in Mississippi prohibiting a party from splitting a cause of action into the subject of two different actions. Wilner IV, 929 So. 2d at 320 (citing Kimball v. Louisville and Nat'l R.R. Co., 94 Miss. 396, 48 So. 230 (1909); Harrison v. Chandler-Sampson Ins., Inc., 891 So.2d 224, 234 (Miss.2005); Alexander v. Elzie, 621 So.2d 909, 910 (Miss.1992)). Davis s multiple Complaints also violate the long-standing principle of law in Mississippi which prohibits claim-splitting, and Davis should not be rewarded for violating this long-standing rule. Thus, even if Davis were correct and the ruling in Long only applied to wrongful death cases which were filed by multiple plaintiffs against the same defendant, Mississippi s long-standing rules against claim-splitting prohibit the filing of Blaylock-0139, DRMC-0140, and DRMC Nevertheless, this is a wrongful death case, and the rules set forth in Long, Briere, and Sauvage could not be any clearer that dismissal, not consolidation, is appropriate. It should be noted that the case sub judice is distinguishable from Briere in one way. This case does not involve a single, previously-filed complaint against the wrong defendant that was dismissed prior to the Court ruling on a Motion to Dismiss filed in the second suit. This matter involves four wrongful death complaints, none of which Davis was willing to dismiss. Had Davis dismissed Barber-0134 before the Circuit Court considered Blaylock s Motion to Dismiss, then the results may have been different. However, Davis refused to dismiss any of her four Complaints and insisted upon the only procedural method specifically unavailable to her, consolidation. Before discussing consolidation, it is important to discuss the only argument continually made by Davis, that the Notice of Claim requirements of the MTCA and (15) somehow required four separate wrongful death complaints. 22

29 C. The MTCA and (15) Notice of Claim Requirements Are Irrelevant Davis has continually argued that she was forced to file her Complaints against the physicians (Dr. Barber and Dr. Blaylock) on different days from her claims against the MTCA protected hospital (DRMC) because the Notice of Claim provisions found in the MTCA and Miss. Code Ann (15) have different waiting periods. This is nonsense. Davis s actions show that this is not true. Even if Davis was required to serve four (4) separate Notices of Claim to DRMC, Barber, and Blaylock on the eve of the limitations period, there was a three (3) month period when Davis could have filed a single Complaint against all parties. The absurdity of Davis s argument is best demonstrated by Davis s own actions. Davis argues that it is the different waiting periods found in the MTCA and (15) that prevented a Complaint against Barber and Blaylock (who would presumably not be protected by the MTCA) and DRMC. This argument fails to explain why Davis did not file suit against Barber and Blaylock on the same day. This argument also fails to explain why Davis filed two separate complaints against DRMC. Further, Davis did actually file Blaylock-0139, a claim against an individual physician defendant who was, allegedly, not an employee of DRMC, and DRMC-0140, a claim against an MTCA defendant, on the very same day, November 19, Thus, Davis s own actions rebut her own argument. Nevertheless, even ignoring Davis s actions, Davis s argument can be easily disproven with an analysis of the limitations periods applicable to DRMC, Dr. Blaylock, and Dr. Barber, as well as the effect that the Notices of Claim have on each of those limitations periods. It should be noted that, in his Reply Memorandum in Support of Motion to Dismiss Blaylock attempted to determine the dates on which Davis could have filed a single Complaint against DRMC, Dr. Blaylock, and Dr. Barber. In that analysis, Blaylock determined that Davis 23

30 could have filed suit against DRMC, Dr. Blaylock, and Dr. Barber during a ten (10) day period from December 16 until December 26, R As noted, this analysis was incorrect. Even if we assume that Davis properly served four separate Notices of Claim, Davis actually had three (3) months in which a single Complaint could have been filed against DRMC, Dr. Blaylock, and Dr. Barber based solely on the Notices of Claim that Davis herself sent. Thus, Davis s argument that the Notice of Claim provisions somehow prevented her from filing suit against DRMC, Dr. Blaylock, and Dr. Barber at the same time is just plain wrong. Beginning with the applicable limitations period for each Defendant, there appears to be no dispute that Davis seeks to make a claim for wrongful death brought pursuant to Miss. Code In a suit brought pursuant to Mississippi s Wrongful Death Statute, there may be several different kinds of claims, and each kind of claim is subject to its own statute of limitations. Caves v. Yarbrough, 991 So. 2d 142, 150 (Miss. 2008). It is undisputed that DRMC is a community hospital which is protected by the immunities afforded by the MTCA. The statute of limitations for claims against MTCA defendants such as DRMC is one year. Miss. Code Ann (3). The limitation period for MTCA claims begins to run on the earliest date all of the elements of a tort are present. U. of Miss. Med. Ctr. v. McGee, 999 So. 2d 837, 840 (Miss. 2008). Further, this Court applies a discovery rule to MTCA claims. Id. As a result, the MTCA's one-year statute of limitations begins to run when the claimant knows, or by exercise of reasonable diligence should know, of both the damage or injury and the act or omission which proximately caused it. Id. Blaylock will assume (because there appears to be no dispute) that the limitations period began to run against DRMC, at the latest, on the date of Mr. Davis s death, September 21, As a result, Davis initially had until September 21, 2014, to file suit against DRMC. 24