E-Filed Document Aug 24 2015 15:39:23 2015-CA-00371 Pages: 15 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI VIJAY PATEL INDIVIDUALLY PLAINTIFFS AND AS ADMINISTRATOR AND WRONGFUL DEATH HEIR OF NATWAREL PATEL VS. Case No. 2015-CA-00371 HILLROM, INC. AND JOHN DOES, 1-5 DEFENDANTS APPELLANT S MEMORANDUM IN CHIEF PREPARED BY: STEWART GUERNSEY MBA # 5052 FONDREN LAW FIRM 904 N. LAMAR AVE, P.O BOX 2442 OXFORD MS. 38655 (662) 236-1480 (T) (662) 236-1488 (F) rsguernsey@bellsouth.net 1
CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. There representations are made in order that the justices of that Supreme Court and or the judges of the Court of Appeals may evaluate possible disqualification or recusal: Vijay Patel, named Plaintiff, and his family Carnelia Fondren, Stewart Guernsey, Fondren Law Firm Plaintiffs counsel Chris Cashen, John Mc Carroll, Defense Counsel All witnesses Baptist Hospital Desoto County All Court Personnel Hon. Gerald Chatham I do so certify this 24 day of August, 2015 /s/ Stewart Guernsey Stewart Guernsey, MBA# 5052 Fondren Law Firm 2
TABLE OF CONTENTS COVER SHEET i CERTIFICATE OF INTERESTED PERSONS 1 TABLE OF CONTENTS 2 TABLE OF AUTHORITIES 3 STATEMENT OF ISSUES 4 STATEMENT OF THE CASE 5 SUMMARY OF THE ARGUMENT 6 ARGUMENT 7 CONCLUSION 11 CERTIFICATE OF SERVICE 12 RECORD EXCERPTS 13 3
TABLE OF AUTHORITIES STATE LAW PAGE Miss. Constitution Article 3, section 14 8 State Case Law Box v. State, So 2d 19, 21 (Miss. 1983) 6, 10 Holly v. Harrah s Tunica Corp., et al, 962 So. 2d 136, 140 (Miss. App 2007) 7 Mississippi Power Co. v. Goudy, 459 So 2d 257 (Miss 1984) 7 Mississippi Commission on Judicial Performance v. McPhail, 874 So 2d 441 (Miss. 2004) 7 Delta MK, LLC v. Mississippi Transportation Commission, 57 So 3d 1284, 1285 (Miss 2001) 8 Rolison v. Enterprise Leasing Co. South Central, Inc. 75 So 3d 1 (Miss App 2010) 8 Palmer v. Biloxi Regional Medical Center, 649 So 2d 179, 183 (Miss. 1994) 8 Breeden v. Buchanan, 2012 CV 00326 COA (Miss App. 2015) 9 State Court Rules MRCP 12 5,6,8,9 MRCP 59 5, 9 MRCP 5(d) 6 MRCP 56 6 MRCP 15 5, 8, 9 MRCP 6(d) 7 FEDERAL LAW USSC Case Law 7 Goldberg v. Kelly, 397 US 254 (1970) U.S. Constitution Amendments 5, 14 8 4
STATEMENT OF THE ISSUES 1. The Court erred by holding a hearing where no Order Setting For Hearing, Notice of Hearing, or Note on the Motion for Dismissal was filed in this case before the hearing. 2. The Court erred in sua sponte converting the motion to a summary judgment hearing without ten (10) days notice of conversion. 3. The Court erred in denying Plaintiff s Rule 59 motion to permit an amended answer to the filed in the case. 5
STATEMENT OF THE CASE The Statement of the case herein will be brief, as the case had not progressed very far when it was dismissed by summary judgment on a Rule 12 motion to dismiss. After Plaintiff filed the Complaint and achieved service of process, Defendants filed a Motion to Dismiss on the basis of the statute of limitations in this strict liability lawsuit, based on an allegedly flawed hospital bed design. Plaintiff responded with a fraudulent concealment argument and Defendants rebutted by claiming that fraudulent concealment could not be proved under any circumstance. In telephone calls between counsel for the parties, a date was set for hearing the Motion to Dismiss. However, defense counsel never filed a Notice of Setting, never moved for an Order of Setting, nor made any other filing. Plaintiffs counsel was surprised, on making inquiry of the Circuit Clerk s staff close to the hearing date, to be told that the hearing was not set for the original date, as it was not on the docket. Plaintiffs counsel ran into Judge Chatham, who instructed counsel to check with the Court Administrator. The Court Administrator revealed to Plaintiff s counsel, for the first time on the day before hearing that the case was on the docket, but did not say whether it would be heard. In short, Plaintiffs counsel did not appear. No Notice of Hearing had ever been filed. The Court ruled that the defense was right, that no fraudulent concealment could ever be shown in the case. The Court converted the case to a summary judgment in its order, without any notice of conversion to any parties. Plaintiff s counsel filed a MRCP 59 Motion, seeking to permit Plaintiff to amend. The Court summarily denied the motion, despite no notice of hearing or order ever being filed in the original motion. 6
SUMMARY OF THE ARGUMENT As the Mississippi Supreme Court noted in Box v. State, 437 So 2d 19, 21 (Miss 1983) A rule which is not enforced is no rule. In the plain language of MRCP 5 (d), filing of any paper after the complaint must be made by serving counsel opposite and filing with the court either before service or within a reasonable time thereafter The record clearly shows that no notice or order of setting was ever filed. Nor did counsel ever receive written notice of the conversion to MRCP 56. Therefore, no notice was filed, and due process was not allowed. The Court s conversion of the MRCP 12 motion to one for summary judgment was also a breach of due process, as MRCP calls for at least ten (10) Days written notice, while the actual notice given first appeared in the Order which dismissed the case. In other words, there was no notice of the possibility of a MRCP 56 judgment given at any time before the conversion was ordered. Finally the Court erred by denying Plaintiffs MRCP 59 motion in the face of settled authority and a Motion to Permit Amendment. MRCP 15 dictates that where a case is dismissed under MRCP 12(b)(6) or 12(c) leave to amend shall be granted when justice so requires upon conditions and within time as determined by the court, provided matters outside the pleadings are not presented at the hearing on the motion. The latter phrase is met inasmuch as the hearing was brief and to the point, with neither evidence nor bilateral agreement presented. 7
ARGUMENT I. The Court erred by holding a hearing where no Order Setting For Hearing, Notice of Hearing, or notice on the motion for dismissal was filed in the case before the hearing. This Court has faced this issue before in Holly v. Harrahs Tunica Corporation, et al, 962 So 2d 136, 140 (Miss. App. 2007): Second, the procedural requirements were not followed and proper notice was not permitted by the court s action. On November 19 th, defendants served a copy of the motion to dismiss on Mr. and Mrs. Holly. The motion was not set for hearing. Rule 6(d) of the Mississippi Rules of Civil Procedure provides that a written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than five days before the time fixed for the hearing, unless a different period is fixed by these rules or by order of the court. Our rules clearly required that the defendants give the plaintiffs notice of the motion and at least five days to respond. These rules notwithstanding, the court entered an order the following day, on November 20 th, and the timing of the entry of the order failed to allow the plaintiffs proper notice or an opportunity to be heard. Similarly, the Mississippi Supreme Court has ruled no notice, no hearing in two cases: Mississippi Power Co. v. Goudy,459 So. 2d 257 (Miss. 1984); Mississippi Comn on Judicial Performance V. Mc Phail, 874 So 2d 441 (Miss. 2004). Each of these cases was reversed, at least in part as a result of no notice of hearing being filed. The instant case must be dismissed as well. Nor is there any dearth of authority in federal law. Goldberg v. Kelly, 397 US 254 (1970), perhaps the key Supreme Court case on due process requirements, makes it abundantly clear that, where rights are at issue, the process due is for notice and a hearing. In Kelly, a welfare recipient s benefits were cut off without a pre-deprivation hearing. The Court ruled that since he had a statutory property right, having qualified for welfare, Kelly was entitled to due 8
process before deprivation. As Justice Brennan opined, In the present content these principles require that a recipient have timely and adequate notice detailing the reasons for a proposed termination, and an effective opportunity to defend by confronting any adverse witness and by presenting his own arguments and evidence orally. 1d, al 268-69. Indeed both the United States Constitution and the Mississippi Constitution require due process before the deprivation of property, liberty, or life by the State. See U.S Constitution, Amendments 5 and 14, and Mississippi Constitution Section 14. Indeed, in the Goudy case, op, cit at 259, the argument is made that Mississippi s Due Process Clause is more stringent than the federal standard. II. The Court erred in sua sponte converting the Motion to Dismiss to a summary judgment hearing without ten (10) days notice of conversion. Again we are not without the guidance of the Appellate Courts in this matter. Delta MK, LLC V. Mississippi Transportation Commission, 57 So 3d 1284, 1285 (Miss. 2011) reversed a grant of summary judgment based on a Motion to Dismiss without any notice of the proposed commission by the Court. In a single sentence Justice Lamar summarized the law and the case. Finding that the trial judge erred when he converted MTC s motion to dismiss into a motion for summary judgment without giving Delta notice, we reverse and remand. See also Rolison v. Enterprise Leasing Co. South Central, Inc., 75 So 3d 1 (Miss. App, 2010); Palmer v. Biloxi Reg l Med Ctr., 649 So 2d 179, 183 (Miss. 1994). The rationale is patent. MRCP 56 has a more rigorous standard for survival than does MRCP 12. To survive a Rule 12 dismissal, the Comment to it says: Rules 12(b)(b) and 12(c) are the proper motions for testing the legal sufficiency of the complaint; to grant the motions these must appear to a certainty that the plaintiff is entitled to no relief under any set of facts that could be proved in support of the claim The very existence of the defense of fraudulent concealment proves that there could be a set of facts proved which would support the claim. In any event, Plaintiff should be allowed to amend his complaint to try to support his claim. Conversely, MRCP 56 requires proof in the form of testimony or affidavit that there is a substantial issue as to any material fact. This proof requires more preparation than the mere 9
argument required to defeat a Rule 12 motion. Additionally, the stakes are higher for a MRCP 56 judgment, since MRCP 12 specifically allows amendment of complaint where justice so requires, while Rule 56 is a final judgment. The Court erred in converting the initial hearing form a MRCP 12 hearing to a MRCP 56 hearing without notice. Therefore, this case must be reversed. III. The Court erred in denying Plaintiffs MRCP 59 motion to permit an amended answer to be filed in the case. Upon receiving the trial courts Summary Judgment, plaintiff timely filed a MRCP 59 motion to alter or amend the judgment to permit amendment of the complaint. Under MRCP 59 and MRCP 15 this is certainly an appropriate use of Rule 59, particularly in light of Delta MK, LLC, op cit, and Breeden v. Buchanan, 2012- CV-00326-COA, (Miss App. 2015), holding that the trial court s denial of a motion to amend after dismissal was an abuse of discretion. These reasons for which new trials have hereafter been granted (MRCP59), make Rule 59 applicable to this case. As in Breeden, id, the primary reason for reversal is that Mississippi courts have liberally permitted amended pleadings. See, e.g. Poindexter, 838 5o 2d at 969 (p.23). Without an explanation by [ Hill Rom] as to how the amendment would be futile, we decline to find such. Hill Rom cannot give such an explanation without seeing the amended complaint; therefore the amendment must be permitted. The honorable Circuit Court must be reversed on its Summary Judgment and plaintiff should be permitted to file an amended complaint. 10
CONCLUSION ibid. We conclude as we began. A rule which is not enforced is no rule. Box v. State, Our system relies, in part, on agreements between lawyers, like that agreed date for hearing herein. But when the rules are not followed, (and the Notice of Hearing is not filed with the Clerk), confusion reigns. In this case, plaintiff s counsel did not appear because the notice of hearing was not filed in the case and counsel received different instructions from the Clerks office and counsel opposite. Relying on rules 5, 6, 12 and 15, counsel did not appear. But counsel had a right to rely on the rules. Because of Box and its progeny the kind of confusion occurring in this case is ameliorated. A notice must be filed with the Clerk to be efficacious. In this case it was not. Therefore, the lower court must be reversed minimally as to the plaintiffs right to amend his complaint, but fully as to the Summary Judgment as well. Nor did the Court ever rule on the defendants Motion to Dismiss, although such an order could be implied. Therefore, plaintiff prays for reversal of the summary judgment with leave to amend his complaint. And plaintiff seeks general relief. Respectfully submitted this 20th day of August, 2015. Vijay Patel By: /s/ Stewart Guernsey Stewart Guernsey, MBA# 5052 Fondren Law Firm P.O. Box 2442 Oxford, Ms. 38655 (662) 473-0091 (T) (662) 236-1488 (F) rsquernsey@bellsouth.net (E) 11
CERTIFICATE OF SERVICE I, Stewart Guernsey, hereby certify that on this day I electronically filed the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such to the following: Further, I hereby certify that I have mailed by United States Postal Service the document to the following non MEC participants: Hon. Christopher Cashen 250 W. Main St., Suite 1400 Lexington, KY 40507 Hon. Gerald Chatham Circuit Judge P.O Box 527 Hernando, Ms 38632 This is the 20 th day of August, 2015. /s/ Stewart Guernsey Stewart Guernsey 12
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI VIJAY PATEL INDIVIDUALLY AND AS ADMINISTRATOR AND WORNGFUL DEAT HEIR OF NATWAREL PATEL PLAINTIFFS VS. HILL ROM COMPANY INC. AND JOHN DOES 1-5 DEFENDANTS RECORD EXCERPTS Prepared By: Stewart Guernsey, MBA # 5052 P.O. Box 167 Water Valley, Ms. 38965 (662) 473 0091 (T) (662) 236 1488 (F) rsguernsey@bellsouth.net (E) 13
RECORD EXCERPTS TABLE OF CONTENTS Cover Page i (12) Table of Contents 1 Trial Court Docket 2 Judgment Appealed from 11 Other Judgments to Be Reviewed 16 All Supporting Oral Opinions 17 Certificate of Service 18 14
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