E-Filed Document Jul 8 2015 12:06:28 2014-CA-00240-COA Pages: 19 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI FRANCES TUCKER APPELLANT VS. Cause No. 2014-CA-00240-COA DELTA REGIONAL MEDICAL CENTER APPELLEE APPEAL FROM THE CIRCUIT COURT OF WASHINGTON COUNTY, MISSISSIPPI REPLY BRIEF OF FRANCES TUCKER, APPELLANT ORAL ARGUMENT NOT REQUESTED William Wes Fulgham, MSB #99159 MORGAN & MORGAN, P.A. 188 E. Capitol Street, Suite 777 Jackson, MS 39201 (601) 949-3388 (601) 949-3399 facsimile COUNSEL FOR APPELLANT FRANCES TUCKER
TABLE OF CONTENTS TABLE OF CONTENTS... TABLE OF AUTHORITIES... STATEMENT OF THE ISSUE... I. INTRODUCTION... II. LEGAL ARGUMENT IN RESPONSE A.The Lower Court Abused its Discretion by Dismissing with Prejudice Tucker s Civil Action Pursuant to M.R.C.P. 37(b)... 1.Tucker was not in violation of a court order 2.The Spelce factors do not support the trial court s dismissing with prejudice Tucker s claim as a sanction pursuant to M.R.C.P. 37(b) a.tucker s failure to comply was not the product of willfulness or bad faith b.lesser sanctions would have been effective c.drmc will not be significantly prejudiced d.tucker s attorney, not Tucker, is responsible for the discovery violation B.The Lower Court Abused its Discretion by Dismissing with Prejudice Tucker s Civil Action Pursuant to M.R.C.P. 37(d) C.The Lower Court Abused its Discretion by Dismissing with Prejudice Tucker s Civil Action Pursuant to URCCC 1.03 III. CONCLUSION... CERTIFICATE OF SERVICE...
TABLE OF AUTHORITIES CASES: 1488, Inc. v. Philsec Inv. Corp., 939 F.2d 1281 (5 th Cir. 1991) Batson v. Neal Spelce Assoc., 765 F.2d 511 (5 th Cir. 1985), Beck v. Sapet, 937 So.2d 945 (Miss. 2006) Buckley v. Singing River Hospital, 146 So.3d 365 (Miss.App. 2013) Caracci v. Int l Paper Co., 699 So.2d 546 (Miss. 1997) Caterpillar Financial v. Burroughs Diesel, 125 So.3d 659 (Miss.App. 2013) Cornelius v. Benefield, 2013 WL 4714330 (Miss. Ct. App. Sept. 3, 2013) Eaton Corp. v. Frisby, 133 So.3d 735 (Miss. 2013) Ford Motor Co. v. Tennin, 960 So.2d 379 (Miss. 2007) Grant v. Kmart Corp., 870 So.2d 1210 (Miss.App. 2001) Hine v. Anchor Lake Property Owners Ass n, Inc., 911 So.2d 1001 (Miss.App. 2005) Holder v. Orange Grove Medical Specialties, P.A., 54 So.3d 192 (Miss. 2010) Illinois Central R. Co. v. Acuff, 950 So.2d 947 (Miss. 2006) Kilpatrick v. Miss. Baptist Med. Ctr.,
461 So.2d 765 (Miss. 1984) Manning v. King s Daughters Medical Center, 138 So.3d 109 (Miss. 2014) McLeod, Alexander, Powell & Apffel, P.C. v. Quarles, 894 F.2d 1482 (5 th Cir. 1990) Owens v. Whitwell, 481 So.2d 1071 (Miss. 1986) Palmer v. Biloxi Regional Med. Ctr., Inc., 564 So.2d 1346 (Miss. 1990) Pierce v. Heritage Properties, Inc., 688 So.2d 1385 (Miss. 1997) Properties Int l Ltd. v. Turner, 706 F.2dd 308 (11 th Cir. 1983) Robert v. Colson, 729 So.2d 1243 (Miss. 1999) Scoggins v. Ellzey Beverages, Inc., 743 So.2d 990 (Miss. 1999) Tamari v. Bache & Co. (Lebanon) S.A.L., 720 F.2d 469 (7 th Cir. 1984) White v. White, 509 So.2d 205 (Miss. 1987) Wood v. Biloxi Pub. Sch. Dist., 757 So.2d 190 (Miss. 2000) Young v. Merritt, 40 So.3d 587(Miss.App. 2009) RULES: F.R.C.P. 16 F.R.C.P. 37
M.R.C.P. 37 M.R.C.P. 41 URCCC 1.03 URCCC 1.10 URCCC 4.03 URCCC 4.04
I. INTRODUCTION Frances Tucker s trial counsel was admittedly negligent in responding to Delta Regional Medical Center s discovery requests. As a result, Delta Regional properly sought an order compelling discovery, pursuant to M.R.C.P. 37. The trial court however, contrary to both M.R.C.P. 37 and well settled case law, bypassed entering an order compelling discovery and imposing any other lesser sanctions, and dismissed Tucker s civil action with prejudice. Because the trial court abused its discretion, this Court must reverse and remand. II. LEGAL ARGUMENT IN RESPONSE A.THE LOWER COURT ABUSED ITS DISCRETION BY DISMISSING WITH PREJUDICE TUCKER S CIVIL ACTION PURSUANT TO M.R.C.P. 37(b). 1. Tucker was not in violation of a court order. Although DRMC now claims that URCCC 4.04 served as a de facto court order, with which Tucker had not complied, Appellee s motion to compel wholly fails to mention this exceedingly important point. (Appellee s brief, p. 8; C.P. 23-24) Rather, DRMC s motion to compel discovery merely cites M.R.C.P. 37 and seeks only an order compelling Tucker to respond to discovery. (C.P. 23-24) DRMC s motion neither seeks dismissal of the action nor claims that dismissal is warranted based on Tucker s violation of a de facto scheduling order. On appeal, DRMC cites Cornelius v. Benefield, 2013 WL 4714330 (Miss. Ct. App. Sept. 3, 2013), in support of this de facto court order contention (Appellee s brief, p. 8); however, Cornelius involves a motion to dismiss pursuant to M.R.C.P. 41(b) for failure to prosecute, rather than a motion to compel discovery pursuant to M.R.C.P. 37. 1
Moreover, Cornelius simply does not support DRMC s claim that URCCC 4.04 serves as a de facto court order. Similarly, both Holder v. Orange Grove Medical Specialties, P.A., 54 So.3d 192 (Miss. 2010), and Hine v. Anchor Lake Property Owners Ass n, Inc., 911 So.2d 1001 (Miss.App. 2005), (Appellee s brief, p. 9), involve motions to dismiss for want of prosecution and do not support DRMC s position on appeal. DRMC also states it is beyond dispute that Tucker did not seek an extension of the discovery deadline 1, but Tucker has not claimed to have done so in the first instance. Next, while conceding it is not directly on point, DRMC relies on Buckley v. Singing River Hospital, 146 So.3d 365 (Miss.App. 2013) (Appellee s brief, p. 9). Buckley is decidedly not on point and provides absolutely no support for DRMC s contention that URCCC 4.04 constitutes a de facto court order, contravention of which might support a dismissal pursuant to M.R.C.P. 37(b). In Buckley, the trial court entered a scheduling order specifically setting forth a date by which Buckley must designate her expert witness. Buckley failed to designate any expert in this medical malpractice action. This prompted Singing River Hospital to file a motion for summary judgment, which the trial court granted. Buckley, 146 So.3d at 369-70 ( 12, 14). Buckley is not a case of delayed designation of an expert witness with no court order in place; Buckley never designated an expert and provided no reason why she failed to comply with the court s scheduling order in this fashion. Buckley, 146 So.3d at 374 ( 23-24). Accordingly, the Court of Appeals affirmed the trial court s grant of summary judgment. 1 Appellee s brief, p. 9. 2
As additional support of the trial court s grant of summary judgment because Buckley had designated no expert witness in her medical malpractice action, this Court noted that URCCC 4.04(A) provides that trial courts may disallow testimony of experts who are not designated as expert witnesses at least 60 days before trial. Buckley, 146 So.3d at 373-74 ( 25). It follows that DRMC is obviously mistaken in its contention that Buckley supports dismissal premised on violation of URCCC 4.04 deadlines. DRMC filed a motion to compel discovery pursuant to M.R.C.P. 37; Tucker s discovery violation was neither in contravention of any court order nor of Rule 4.04(A) because there was not yet a trial date; Buckley involved a motion for summary judgment based on there being no expert witness in a medical malpractice action, in contravention of both a scheduling order and Rule 4.04(A). Buckley simply does not inform the analysis of the case at bar. DRMC s citation of McLeod, Alexander, Powell & Apffel, P.C. v. Quarles, 894 F.2d 1482 (5 th Cir. 1990), is less than straightforward (Appellee s brief, p. 10). Quarles appealed the entry of default judgment against him for his failure to comply with discovery requests, urging that reversal was warranted because he was not in violation of an order compelling discovery. While Quarles relies on the 7 th and 11 th Circuit Courts for the proposition that sanctions may be imposed pursuant to F.R.C.P. 37(b) even without violation of an order to compel where a party has received adequate notice that certain discovery proceedings are to occur by a specific date, it does not say that such sanctions may be imposed without violation of any court order. Quarles, 894 F.2d at 1485 (quoting Tamari v. Bache & Co. (Lebanon) S.A.L., 720 F.2d 469, 3
472 (7 th Cir. 1984)) 2. Quarles was in fact in violation of an order of the lower court, which specifically required completion of discovery by a date certain and, further, which provided that failure to comply would result in sanctions pursuant to F.R.C.P. 16(f). Rule 16(f) states that a judge may impose F.R.C.P. 37(b) sanctions on a party who fails to obey a pre-trial order; Rule 37(b) sanctions include default judgment. Quarles, 894 F.2d at 1485. Again, DRMC is left without support for its claim. [F]ailure to make or cooperate in discovery should first be resolved by making a motion in the proper court requesting an order compelling such discovery. Robert v. Colson, 729 So.2d 1243, 1247 (Miss. 1999) (citing M.R.C.P. 37(a)(2)). If the party fails to comply with this first order to compel, the trial judge may then sanction that party in accordance with M.R.C.P. 37(b), which includes dismissing the case with prejudice. Beck v. Sapet, 937 So.2d 945, 949 ( 7) (Miss. 2006) (citation therein omitted). See also Ford Motor Co. v. Tennin, 960 So.2d 379, 393 ( 47) (Miss. 2007); Young v. Merritt, 40 So.3d 587, 590 ( 11) (Miss.App. 2009). The lack of an order compelling responses in the subject case is sufficient, on its own, to require reversal. See, e.g., Manning v. King s Daughters Medical Center, 138 So.3d 109, 118-19 ( 30) (Miss. 2014) (citations therein omitted), which states that a motion to compel is not a prerequisite to a motion to dismiss when there is a total failure to participate in discovery, but improper discovery responses are governed by Rule 37(a)(2) and require 2 Tamari and all cases cited therein for this proposition involve situations where the court has directly communicated with the party, advising him of the specific discovery required to be completed by specific dates. Tamari, 729 F.2d at 472-73. Quarles also cites Properties Int l Ltd. v. Turner, 706 F.2dd 308, 310 (11 th Cir. 1983), which involved two hearings on a motion for sanctions and seeking cooperation in discovery, an order that the defaulting party complete discovery and, after he still failed to do so, yet another hearing on motion for sanctions and on a motion for entry of default. 4
a motion to compel. See also Caterpillar Financial v. Burroughs Diesel, 125 So.3d 659, 675 ( 95) (Miss.App. 2013) (discovery violation did not warrant dismissal of action because party did not violate any court order; aggrieved party had failed to file motion to compel discovery). 2. The Spelce factors do not support the trial court s dismissing with prejudice Tucker s claim as a sanction pursuant to M.R.C.P. 37(b). DRMC begins its discussion here with a misstatement of fact (Appellee s brief, p. 10): there was not in fact a court order in place concerning discovery. DRMC correctly cites Pierce v. Heritage Properties, Inc., 688 So.2d 1385 (Miss. 1997), and Batson v. Neal Spelce Assoc., 765 F.2d 511, 514 (5 th Cir. 1985), (Appellee s brief, p. 10-11), which provide the guiding factors trial courts are to consider in the evaluation of the propriety of a dismissal with prejudice pursuant to M.R.A.P. 37. However, DRMC misrepresents Palmer v. Biloxi Regional Med. Ctr., Inc., 564 So.2d 1346 (Miss. 1990), as support for the proposition that the Pierce/Spelce factors must be weighed against the court s interest in the orderly expedition of justice and control of its docket by the use of dismissal as a sanction, when reviewing for abuse of discretion. (Appellee s brief, p. 11) Instead, Palmer first sets forth the law regarding when a court may dismiss for a discovery violation, which includes the court s inherent power to dismiss as a means of controlling its docket and the orderly expedition of justice. Then, in a separate paragraph, Palmer sets forth the standard of review, which is that an appellate court may reverse when the trial court s dismissal evinces an abuse of discretion in the application of the (previously stated) law. Palmer, 564 So.2d at 1367-68) (citations therein omitted). DRMC also misrepresents Pierce as holding that a court s inherent 5
power to dismiss action a necessary means to the orderly expedition of justice and control of its docket (Appellee s brief, p. 11). That is simply not a holding of the Pierce Court, which did, however, state that [t]he trial court, in dismissing Pierce s case, relied on Mississippi Rules of Civil Procedure 37(b)(2) and 37(e), along with its inherent power to protect the integrity of the judicial process. In summary, these rules give the trial court the power to impose just and appropriate sanctions for failure to comply with an order to provide or permit discovery. Pierce, 564 So.2d at 1388. a.tucker s failure to comply was not the product of willfulness or bad faith. DRMC urges this Court to find that the record reveals Tucker s discovery violation as so egregiously willful and in bad faith that the trial court was not required to make a particular finding on this factor. (Appellee s brief, p. 11-13) First, willfulness or bad faith is necessary for the sanction of dismissal. Illinois Central R. Co. v. Acuff, 950 So.2d 947, 955 ( 28) (Miss. 2006) (citing Pierce, 688 So.2d at 1389). A review of the record in the case sub judice reveals no evidence of willfulness, bad faith, or inability to comply with the court s order, because there is no order with which to comply. Pierce, 688 So.2d at 1389. Moreover, every case DRMC cites in support of its claim that Tucker s discovery violations constitute willfulness and bad faith are easily and tremendously distinguishable. In Pierce, the Court found no abuse of discretion by the trial court s dismissal with prejudice when the plaintiff had withheld information from the court and her discovery violation consisted of providing false testimony under oath via three different discovery mechanisms. Pierce, 688 So.2d at 1388. In White v. White, 509 So.2d 205 (Miss. 1987), the Court did not find the willfulness or bad faith of the party so clearly 6
demonstrated in the record as to excuse a particular finding of same by the trial court. In fact, the Court stated [w]e believe those cases [not requiring a particular finding of bad faith by the trial court] are rare, however. White, 509 So.2d at 208. The Wood Court, quoting Pierce, indeed stated that when determining whether a party willfully abused the discovery process the focus is on the intentional nature, as well as the pattern of the conduct. Wood v. Biloxi Pub. Sch. Dist., 757 So.2d 190, 194 ( 15) (Miss. 2000) (quoting Pierce, 688 So.2d at 1389)). But the plaintiff in Wood had allegedly lied in response to one interrogatory; the plaintiff in Pierce had deliberately provided false responses to interrogatories, requests for production of documents, and in deposition testimony. Despite that the plaintiff had allegedly lied in response to an interrogatory, the Wood Court found that the record did not present one of those rare instances where the conduct of a party is so egregious that no other sanction will meet the demands of justice, [and] the trial court abused his discretion in concluding otherwise. Wood, 757 So.2d at 195 ( 16) (quoting Scoggins v. Ellzey Beverages, Inc., 743 So.2d 990, 997 (Miss. 1999)). Likewise, the case at bar does not present one of those rare instances. b.lesser sanctions would have been effective. DRMC cites only two cases here and neither helps its position on appeal. (Appellee s brief, p. 13-14) First, while the Grant Court did state that the trial judge is not required to consider lesser sanctions on the record, it also said that where there is no indication in the record that the lower court considered any alternative sanctions, the appellate court will consider that a reason not to uphold the dismissal. Grant v. Kmart Corp., 870 So.2d 1210, 1215 ( 21) (Miss.App. 2001)(emphasis added) (quoting 7
Pierce, 688 So.2d at 1389). The discovery-violating party in Grant provided false answers to interrogatories; the trial court did consider a lesser sanction; this Court affirmed the trial court s sanction of dismissal. Grant, 870 So.2d at 1212, 1215 ( 6-7, 21). The harsh sanction was appropriate in Grant because any lesser sanction would have allowed the plaintiff to go unpunished for lying under oath. Grant, 870 So.2d at 1215 ( 22) (citation therein omitted). In contrast, Tucker has not provided false answers, there is no evidence the trial court considered any lesser sanctions, and a lesser sanction could have achieved the deterrent value of Rule 37. Pierce, 688 So.2d at 1389. The other case DRMC cites has no application here because it involves exclusion of expert testimony at trial as a sanction for a defendant who failed to designate said expert in accord with a court order, which allowed a three year period from the inception of suit to do so, and the ruling did not leave the defendant without an expert on the issue. See 1488, Inc. v. Philsec Inv. Corp., 939 F.2d 1281, 1288 (5 th Cir. 1991). c. DRMC will not be significantly prejudiced. If any of the Pierce factors might be viewed as leaning in favor of DRMC, this would be the one. However, there was not yet a trial date set, so Tucker s discovery violations did not require continuance of a trial setting. As DRMC concedes (Appellee s brief, p. 14), they will likely reopen Tucker s deposition in the wake of this Court s reversal. And regarding loss of testimony and evidence, it is difficult to believe that DRMC has failed to record and preserve medical records, statements of involved employees/agents, and other possibly pertinent evidence in its possession. The prejudice to DRMC, if any, resulting from Tucker s discovery violation is minimal. 8
d.tucker s attorney, not Tucker, is responsible for the discovery violation. DRMC argues that because there is no proof that the discovery violation is attributable solely to Tucker s trial attorney rather than to Tucker herself, this factor weighs in favor of the dismissal. (Appellee s brief, p. 15) However, appellate counsel for Ms. Tucker, an officer of the court, has affixed his name to Tucker s primary brief and to this reply brief, clearly stating that the discovery violation was the fault of Tucker s trial attorney 3 and not of Ms. Tucker. Moreover, there is absolutely no evidence in the record that the discovery violation is attributable to Ms. Tucker. B. THE LOWER COURT ABUSED ITS DISCRETION BY DISMISSING WITH PREJUDICE TUCKER S CIVIL ACTION PURSUANT TO M.R.C.P. 37(d). M.R.C.P. 37(d) indeed provides that a court may dismiss a matter upon motion, without a prior court order, when a party fails to serve answers or objections to interrogatories. DRMC did not file a motion to dismiss, but a motion to compel. While the sanction of dismissal (without a prior order to compel) may be appropriate for egregious discovery violations, such as when the plaintiff fails to timely supplement his interrogatory responses for more then three years after interrogatories were served, and for more than four months after the defendant filed a motion to dismiss, and when the plaintiff never requested additional time in which to respond, the facts in the case at bar do not begin to compare. See Palmer v. Biloxi Reg. Med. Ctr., Inc., 564 So.2d 1346, 1366-67 (Miss. 1990) (cited by Appellee s brief, pp. 16, 17-18). Manning v. King s Daughters Med. Ctr., 138 So.3d 109, 114 ( 15) (Miss. 2014), also cited by DRMC, (Appellee s brief, p. 16), is similarly inapplicable as it involves dismissal 3 It is noteworthy that Tucker s trial attorney was, at the time of the discovery violation, employed by the same firm that currently employs Tucker s appellate counsel. 9
pursuant to M.R.C.P. 41(b) for failure to prosecute. Manning, the plaintiff, failed to respond to discovery for two years; the trial court found there was no requirement that the defendant file a motion to compel because Manning had no intention of responding to discovery and, due to his gamesmanship, the defendant had no way of serving a motion to compel. Manning, 138 So.3d at 113 ( 10). DRMC also cites Kilpatrick v. Miss. Baptist Med. Ctr., 461 So.2d 765, 767-68 (Miss. 1984), (Appellee s brief p. 16), a pre-m.r.c.p. case in which the defendants obtained an order compelling the plaintiff to respond to discovery and thereafter filed a motion to dismiss. DRMC neither obtained an order compelling nor filed a motion to dismiss. Also cited by DRMC is Owens v. Whitwell, 481 So.2d 1071 (Miss. 1986), (Appellee s brief, p. 16), which presented only one issue, with no bearing on the current appeal: whether monetary payment imposed on plaintiffs as condition for the continuance sought when their experts were not permitted to testify was unreasonable where the trial court had misconstrued a Supreme Court opinion to require witness exclusion. DRMC also posits, purportedly with the support of Caracci v. Int l Paper Co., 699 So.2d 546 (Miss. 1997), (Appellee s brief, p. 16), that because Tucker s responses are the equivalent of no response at all, dismissal without a prior court order is justified pursuant to Rule 37(d). But again, DRMC s reliance is misplaced. The plaintiff in Caracci failed to provide sworn supplemental answers to expert interrogatories. The Court found Caracci s improper discovery response was equivalent to a discovery deficiency, justifying action pursuant to M.R.C.P. 37(a), which required International Paper to file a motion to compel. Caracci, 699 So.2d at 557 ( 20, 22). In White, 509 10
So.2d at 208-09, also cited by DRMC, (Appellee s brief, p. 18), the Court reversed the trial court s Rule 37 dismissal where the trial court made no finding of willfulness or bad faith, of prejudice, of lesser available sanctions, and there was no evidence of whether the party or the attorney was responsible for the discovery violation. In the current case, the trial court similarly failed to make any findings on these pertinent factors and here Tucker s attorney, rather than Tucker, was responsible for the discovery violation. Finally, DRMC again cites Buckley, (Appelle s brief, p. 20), which affirmed the trial court s grant of summary judgment based on the plaintiff s failure to designate experts, in contravention of the court s scheduling order. Several points are noteworthy and readily distinguishable from the case at hand. First, the Buckley Court relied upon the four Spelce factors, not merely plaintiff s failure to designate an expert witness. Buckley, 146 So.3d at 372 ( 20) (citations therein omitted). These factors weigh against dismissal in the case sub judice. Next, the plaintiff s supplemental responses to interrogatories and the designation of expert in Buckley were not just delayed, but they actually never occurred, leaving the defendant hearing an expert s opinion for the first time at a deposition one month before trial. Buckley, 146 So.3d at 372 ( 23). There has never been a trial date set for Tucker v. DRMC. Also, the plaintiff in Buckley provided no reason why she was unable to designate her expert in compliance with the court s scheduling order, when her counsel had actually drafted the order. Buckley, 146 So.3d at 373 ( 24). There was no order in place in the case at bar and with new counsel, Tucker absolutely intends to comply with discovery requests. Finally, the Buckley Court noted that URCCC 4.04(A) disallows trial testimony of an expert witness who was not designated as an expert at least 60 days prior to trial. Buckley, 146 So.3d 11
at 373-74 ( 24). Again, there has not yet been a trial date set for Tucker s suit so URCCC 40.4(A) is not in play. C. THE LOWER COURT ABUSED ITS DISCRETION BY DISMISSING WITH PREJUDCE TUCKER S SUIT PURSUANT TO U.R.C.C.C. 1.03. URCCC 1.03 indeed permits a judge to impose sanctions when a party/attorney violates the Uniform Rules of Circuit and County Court. However, DRMC misrepresents the holding of Eaton Corp. v. Frisby, 133 So.3d 735 (Miss. 2013). Rather than broadly holding that a court may impose the sanction of dismissal under URCCC 1.03 4, Eaton holds that dismissal is warranted pursuant to URCCC 1.03 5 for improper ex parte communication with the presiding judge, which is a violation of URCCC 1.10. Eaton, 133 So.3d at 753 ( 73-76). DRMC is also mistaken about URCCC 4.03, (Appellee s brief, p. 20-21), which sets a deadline for responding to a motion to dismiss or for summary judgment. (URCCC 4.03 (2)). DRMC did not file either of these motions; rather, it filed a motion to compel. Consequently, Tucker did not violate URCCC 4.03. Also of import is DRMC s repeated contention that Ms. Tucker herself flagrantly failed to comply with discovery requests and exhibited a brazen disregard for the applicable rules. Any and all discovery violations are attributable to Tucker s prior attorney, not to Ms. Tucker, and she should not suffer the loss of her day in court for her attorney s transgressions. 4 Appellee s brief, p. 20. 5 Rule 1.03 provides that any person who violates the provisions of the URCCC may be subjected to sanctions by the court. 12
III. CONCLUSION For all of the aforementioned reasons, this Court should reverse the trial court s Order dismissing with prejudice Frances Tucker s civil action, and remand the matter to the Washington County Circuit Court. Respectfully submitted, this the 8 th day of July, 2015. FRANCES TUCKER, APPELLANT BY: /s/ William Wes Fulgham William Wes Fulgham, MSB #99159 MORGAN & MORGAN, P.A. 188 E. Capitol Street Jackson, MS 39201 (601) 949-3388 (601) 949-3399 facsimile COUNSEL FOR APPELLANT FRANCES TUCKER 13
CERTIFICATE OF SERVICE I, William Wes Fulgham, do hereby certify that I have this day forwarded, via U.S. mail, postage prepaid, a true and correct copy of the foregoing to: P. Scott Philllips Andrew F. Tominello Campbell DeLong, LLP 923 Washington Avenue P.O. Box 1856 Greenville, MS 38702-1856 Hon. W. Ashley Hines Circuit Court Judge P.O. Box 1315 Greenville, MS 38702-1315 THIS, the 8 th day of July, 2015. /s/ William Wes Fulgham William Wes Fulgham, MSB #99159 14