IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI CASE N ca NO.2014-ca-00984

Transcription

1 E-Filed Document Dec :31: CA Pages: 15 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI CASE N ca NO.2014-ca VIRGINIA ROSS, on behalf of all beneficiaries of SCOTT PATRICK ROSS, DECEDENT; and THE ESTATE OF SCOTT PATRICK ROSS by and through VIRGINIA THORPE ROSS, Personal APPELLANT VERSUS DR. MATTHEW C. WALLACK, Individually, and/or d/b/a COASTAL HEADACHE AND PAIN MANAGEMENT CENTER APPELLEE APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSISSIPPI BRIEROF APPELLAN. APPEIJ,AN T _ VIRGINIA ROSS NO ORAL ARGUMENT REQUESTED EDWARD 0. O. MILLER (MSB #3283) MILLER & SMITH rd A Avenue Gulfport, MS Telephone (228) Facsimile (228) eddymillen'@cableone.net eddymiller!a>.cableone.net ATTORNEY FOR APPELLANT VIRGINIA ROSS R. WAYNE WOODALL (MSB #7374) ATTORNEY AT LAW rd Avenue Gulfport, MS Telephone (228) Fax (228) rwwoodalll@aol.com 1@aol.com CO-COUNSEL FOR APPELLANT VIRGINIA ROSS

2 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI CASE N ca VIRGINIA ROSS, on behalf of all beneficiaries of SCOTT PA TRICK ROSS, DECEDENT; and THE ESTATE OF SCOTT PATRICK ROSS by and through VIRGINIA THORPE ROSS, Personal APPELLANT VERSUS DR. MATTHEW C. WALLACK, Individually, and/or d/b/a COASTAL HEADACHE AND PAIN MANAGEMENT CENTER 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 Judges of the Court of Appeals may evaluate possible disqualification or recusal: 1. Virginia Ross, Appellant; 2. Dr. Matthew C. Wallack, Appellee; 3. Honorable Robert P. Krebs, Circuit Court Judge; 4. Edward 0. Miller, Attorney for Appellant; 5. R. Wayne Woodall, Co-Counsel for Appellant; 6. Jessica B. McNeel, Attorney for Appellee; and, 7. John Banahan, Attorney for Appellee. So certified on this the 23rd day of December, ls/edward 0. Miller EDWARD 0. MILLER l.

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS... i. TABLE OF CONTENTS... ii. TABLE OF AUTHORITIES....iii. STATUTES AND RULES...:... iv. STATEMENT OF THE ISSUES... 1 STATEMENT OF THE CASE... 2 SUMMARY OF THE ARGUMENT... 3 ARGUMENT CONCLUSION... ~... 9 CERTIFICATE OF FILING AND SERVICE....,... lo ii.

4 TABLE OF AUTHORITIES CASES: AT&T v. Days Inn, 720 So.2d 178, 180 "E 12" (Miss. 1998)... 8 Biemann & Rowell Co. v. Donohoe Company, Inc., 166 N.C. Appeals 516, 603 S.E.2d 583 (2004)... 6,7 Crain v. Cleveland Lodge, 1532,641 So.2d 1186,1188 (Miss. 1994)... 5 Custer v. Murphy Oil USA, Inc... 7 Duron v. Albertson's, LLC, 560 Fed.3d 288, 291 (5 th Cir. 2007)... 7,9 Geico Ins. Co. v. White, the 5 th Cir. Ct of Appeals at 339 F.3d 394, a 2009 WL Lane v. A.J.M. Oustalet, So.2d 92, 95 (Miss. 2004)... 5 Martin v. Simmon, 571 S.2d 254, 258 (Miss. 1990)...4 Miller v. Shell Oil Co., 783 So.2d 724, 726 (Miss. Ct. App. May 30, 2000, Cert. denied)... 5 Rogers v. Kroger Co., 669 Fed.2nd, 313, 320 (5 th Cir. 1982)... 8 Ruiz v. Nicolas Trevino Forwarding Agency, Inc., 888 S.W.2d 86, 88 (Tex. App. - San Antonio 1994) ,9 111.

5 STATUTES AND RULES: M.R.C.P. Rule 56{e)... 3,5 M.R.C.P. Rule 41{b)... 8 IV.

6 I. STATEMENT OF THE ISSUES 1. The Trial Court ened when on Defendant s Summary Judgment Motion it ruled that Plaintiff had not timely filed Answers to Request for Admissions when in fact they were never received by Plaintiff's lawyer. 1.

7 II. STATEMENT OF THE CASE On June 18,2013, the trial court entered an Order for Summary Judgment against Plaintiff in the above styled and numbered cause. (R. p.146) The Court found that Plaintiff s lawyers, Edward O. Miller and R. W. Woodall had failed to timely answer Request for Admissions filed by the Defendant's counsel. The Request for Admissions were not filed with Defendant's discovery request, but some time later on May 6, (R.p.67) Attorneys for Plaintiff never received copies of the Request for Admissions reportedly mailed by Defendant's lawyer until they were attached to Defendant's Motion for Summary Judgment on February 18, (R. p.87) The record reflects on February 21,2013, the attorneys for Plaintiff filed an Answer to Request for Admissions within 30 days after first receiving them. (R. pp ) Plaintiff attached 3 sworn affidavits stating that the Request for Admissions were never received. (R.pp.l26-131) At the hearing on the argument for summary judgment, Defendant's lawyer stated that she had signed a Certificate of Service with no additional proof as to mailing of the requests. The trial court ruled in favor of Defendant's Motion for Summary Judgment. Two additional Affidavits were filed with Plaintiffs Motion to Alter, Amend or for Reconsideration of the court's ruling dated June 18,2013. (R.pp. 147, 152, 153, 154) 2.

8 III. SUMMARY OF THE ARGUMENT The Trial Court erred when it sustained Defendant's Motion for Summary Judgment and ruled that Plaintiff's counsel had not timely filed their Answers to Request for Admissions when Plaintifrs counsel never received the Request. Defendant's attorney reportedly mailed her two Requests for Admissions on May 5, When Plaintiffs attorneys received a copy of the Motion for Summary Judgment for failure to answer the Request for Admissions, they immediately filed a response within the required time which included sworn Affidavits that they had not received the Request for Admissions until it was attached to Defendant's Motion for Summary Judgment on February 8, (Rpp ) Plaintiffs attorneys filed a Response to the Motion for Summary Judgment on February 21,2013, and answered that Plaintiff s counsel never received the Requests for Admissions from Defendant's counsel. See (R. pp ). Plaintiff s counsel attached to their Response sworn Affidavits in accordance with Rule 56(e). (Rpp ) No opposing affidavits were filed by the Defendant's counsel. Plaintiffs counsel could not answer a pleading that they not receive. Thus, the summary of the argument is that the complaint/case should not be dismissed as a disputed genuine issue offact exists in regard to the non-receipt of the Request for Admissions by Plaintiff's lawyers. 3.

9 IV. ARGUMENT The Trial Court erred when it sustained Defendant's Motion for Summary Judgment and ruled that Plaintiff's counsel had not timely filed their Answers to Request for Admissions when Plaintifrs counsel never received the Request. This appeal arises out of a Complaint filed on November 3, 2010, (Rpp ) against Defendant for the wrongful death of Plaintiff s son and on behalf of the deceased's estate. Defendant was accused in the Complaint of over-prescribing pills to the deceased which Plaintiffbelieves killed her son. Defendant filed an out oftime Motion for Time on December 7,2010 (Rpp.28-30) and answered the Complaint on January 27,2011 (Rpp.46-65), and filed on January 27, 2011, discovery which included First Set of Interrogatories and Requests for Production of Documents. (Rp.43) F our months later on May 6, 2011, Defendant filed a Request for Two Admissions. (R p. 67) On the 16 th day of May 20 11, Plaintiff answered Defendant's discovery, the Interrogatories and Request for Production of Documents. (R.p.70) To date, Defendant has not answered Plaintiffs discovery filed on November 14,2011. Defendant filed amotion for Summary Judgment on February 8, 2013, alleging that Plaintiff had not answered the Request for Admissions and they should be taken as admitted. (R.p ). On February 21,2013, Plaintiff filed a response to the Motion for Summary Judgment stating that the Request for Admissions was never received, therefore, could not be answered. (R.p ) Herein lies the sole issue for this Court to decide. Should a party be held accountable for failure to answer a Request for Admissions that was never received? That makes it an impossible burden for Plaintiff s attorneys whose offices are next door to each other. A. Summary Judgment This Court has repeatedly stated that, "Summary Judgment is a powerful too1..." which should be used wisely and sparingly." Martin v. Simmon, 571 S.2d 254, 258 (Miss. 1990). 4.

10 It should only be granted when "there is no genuine issue as to any material fact." M.RC.P. 56(e). When reviewing a decision to grant summary judgment, this Court will review the case de novo. Crainv. ClevelandLodge, 1532,641 So.2d 1186, 1188 (Miss. 1994). All evidentiary matters are viewed in light most favorable to the non-movant. Id. Miller v. Shell Oil Co., 783 So.2d 724, 726 (Miss. Ct. App. May 30, 2000, Cert. denied). Ifthis Court finds that the evidence is favorable to the non-moving party and the reasonable inference drawn therefrom presents a genuine issue offact, the motion should not be granted. Lane v. A.J.M Oustalet, So.2d 92, 95 (Miss. 2004). After a hearing on June 13, 2013, the Trial Court entered an Order for Summary Judgment against Plaintiff in the above styled and numbered cause on June 18, (R.p.146). The Court found that Plaintiff s lawyers had failed to timely answer Requests for Admissions filed by Defendant's attorney. Plaintiffs lawyer filed a response to the Motion for Summary Judgment on February 21, 2013, and stated that neither of Plaintiffs attorneys received the Request for Admissions (R.pp ) and attached sworn Affidavits supporting the response. (R.pp ). After a hearing on June 13,2013, the court entered its Order on June 18,2013, dismissing the Complaint. (Rp.l46). The Answer was filed within 30 days of receipt of the Defendant's Motion for Summary Judgment. At that point, Plaintiff filed a Motion to Alter, Amend or for Reconsideration on June 27, 2013, (Rpp ) and attached a report from Robert Wiemer, M.D., who stated that Defendant had, in his opinion, violated the standard of care in this community and proximately caused the death of Scott Ross. (Rp.l53) (Exhibit "B" to Motion). Also, attached was the Affidavit of Jana Montgomery, Office Secretary, responsible for opening mail for Miller & Smith law firm, who stated 5.

11 that she never saw or opened a Request for Admissions received from Defendant's attorney. (R.p.152) (Exhibit "B" to Motion) Also, attached to the Motion to Alter, Amend or for Reconsideration was an Affidavit by Plaintiffs Co-Counsel R. Wayne Woodall (R.p.154) and Exhibit "C" to the Motion for Reconsideration. Again, Plaintiffs lawyer cannot answer what they did not receive. The record reflects that attorneys for Plaintiff filed within 30 days of said receipt Answers to Request for Admissions attached to the Motion for Summary Judgment. (R.p.13I) At a hearing on the argument for Summary Judgment, Defendant's lawyer simply stated that she had signed a Certificate of Service of mailing. She offered no supporting affidavits or additional proof as to the mailing. Were the Requests mailed? Were they lost in the mail? They were not delivered to Plaintiffs lawyers. Again, Plaintiffs lawyers could not answer what they did not receive. At some point, the trial court had to decide whether or not it believed two officers of the court. The Court said, "I believe there is a presumption that at least one of you gentlemen should have received it. One not getting it, fine; but two, that's just outside the realm of possibility." He went on to say, "... and even with that, when the 30 days passed under the rule, the Admissions were conclusively accepted as fact." (TR.p.23). Again, the Certificate of Service is a rebuttable presumption which was rebutted by three (3) sworn Affidavits. A request cannot be answered if it were never receivec,l. The trial court's entire opinion is based on the trial court's belief that the Requests were received by at least one of the attorneys, which they were not - which is the sole issue to be decided by this Court. If Jackson County had MEC filing this would never have happened. A review of rulings by the Courts, reveal what appears to be widely held rulings by the Courts, ifnot a universal rule, that a Certificate of Service raises a rebuttal presumption of delivery. Biemann & Rowell Company v. 6.

12 Donohoe Company, Inc., 166 North Carolina Appeals, 516, 603 S.E.2d 583, a 2004 case. Ruiz v. Nicolas Trevino Forwarding Agency, is a Texas case. Ruiz went to the Court of Appeals in San Antonio in 1994, and the law remains the law in Texas today. The filing of the Certificate of Service created a presumption of service; that presumption could be rebutted by proof of non-service such as Affidavit of Attorney of non-receipt. Texas holds in the Ruiz case that sworn denial of receipt destroys the presumption. In the Mississippi case, Geico Ins. Co. v. White, the 5 th Cir. Ct of Appeals at 339 F.3d 394, a 2009 WL , the question arose as to whether or not a policyholder, Hall, received an amendment to his insurance policy. The only denial was a weak statement or a weak denial by a Third Party Defendant in a case who was successor in title to Hall. It was not in the form of a sworn affidavit. In Duron v. Albertson's, LLC, 560 F.3d 288 and 291, Fifth Circuit, a 2007 case, the Court vacated the Summary Judgment where the sender had not submitted any affidavits in support of the mailing: There had not been one submitted in this case and in contrast, the alleged recipient had in Duron provided a sworn affidavit that she did not receive the document in her case to the court. Defendant's counsel in this case did not attach one to its motion saying it had been mailed and has not done so to this day. Plaintiff s lawyers cannot answer a Request not received. The Duron case, supra, has become what's called "the mailbox rule". "The court stated in Duron that the issue was whether or not Plaintiff was notified that she had received a letter from EEOC authorizing her to continue her case by suing the employee/claimant. Her attorney, prior to filing the lawsuit, denied in sworn Affidavits receiving the letter for right to sue, which is the sole issue for this Court. On page 4 of that opinion, in Custer v. Murphy Oil USA, Inc., the Fifth Circuit stated that a threshold 7.

13 question for the application of the mailbox rule, is whether there is sufficient evidence that the letter was actually mailed. All the court had received from the Defendant's attorney is a Certificate of Service. Remembering that this is a rebuttable presumption, the court went on to say that in its view, a sworn statement is credible evidence of mailing for the purposes of the mail box rule. Evidence of non-receipt can be used to establish that the notice was never mailed. As officers of the Court, Plaintiffs lawyers filed sworn Affidavits of non-receipt as well as an employee of attorney, Edward O. Miller. Plaintiffs lawyers could not answer a request that they never received. Our Supreme Court, time and again, says that the law favors a trial of the issues on the merits. In Mississippi, according to AT&Tv. Days Inn, 720 So.2d 178 and 180, Section 12, Miss. 1998), Mississippi does not set a time limit for the production of an action once it has been filed. (R.p.150) "Mississippi does not set a time limit for the prosecution of an action once it has been filed, Id. AT&Tv. Days, Inn, 720 So.2d 178,180 " 12" (Miss. 1998). However, if the record shows that a Plaintiff has been guilty of dilatory contumacious conduct, or has been repeatedly disregarded the procedural directives of the Court, as such dismissal is likely to be upheld. Id. Thus Rule 41 (b) dismissals with prejudice will be affirmed only upon a clear record of delay or a contumacious conduct by the Plaintiff'... and where lesser sanctions would not serve the best interest of justice." Id. at (citing Rogers v. Kroger Co., 669 Fed.2d, 313, 320 (5 th Cir., 1982). 8.

14 CONCLUSION Plaintiffs lawyers could not answer what they did not receive. The law is clear that a Certificate of Service is a rebuttable presumption. Affidavits submitted by Plaintiffs attorneys and office personnel created a definite issue of fact and would warrant the Motion for Summary Judgment being set aside in accordance with Texas law Ruiz, supra, and the 5th Circuit opinion in the Duron case, or the "mail box rule". Plaintiffs lawyers could not answer a request that they did not receive. WHEREFORE, Movants humbly request that the Trial Court's decision be reversed and remanded for a trial on the merits. RESPECTFULLY SUBMITTED, this the 23rct day of December, ls/edward 0. Miller EDWARD 0. MILLER /s/r. Wayne Woodall R. WAYNE WOODALL 9.

15 CERTIFICATE OF SERVICE I, EDWARD 0. MILLER, do hereby certify that I have this day filed by electronic filing (MEC), a true and correct copy of the above and foregoing Brief of Appellant to the parties listed in the electronic filing system. Muriel Ellis, Supreme Court Clerk Post Office Box 249 Jackson, MS John Banahan, Esquire Jessica B. McNeel, Esquire Bryan, Nelson, Schroeder, Castigliola & Banahan Post Office Drawer 1529 Pascagoula, MS Honorable Robert Krebs, Circuit Court Judge P. 0. Box 998 Pascagoula, MS R. Wayne Woodall, Esquire rd Avenue Gulfport, MS This the 23rct day of December, ls/edward 0. Miller EDWARD 0. MILLER EDWARD 0. MILLER (MSB #3283) MILLER & SMITH rd A venue Gulfport, MS Telephone (228) Facsimile (228) eddymiller@cableone.net ATTORNEY FOR APPELLANT VIRGINIA ROSS R. WAYNE WOODALL (MSB #7374) ATTORNEY AT LAW rd Avenue Gulfport, MS Telephone (228) Fax (228) rwwoodalll@aol.com CO-COUNSEL FOR APPELLANT VIRGINIA ROSS 10.