Tallahatchie General Hospital v. Susan Edwards Howe ( 2009 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2009-IA-00495-SCT
TALLAHATCHIE GENERAL HOSPITAL,
TALLAHATCHIE GENERAL HOSPITAL
EXTENDED CARE FACILITY AND BARBARA
CRISWELL
v.
SU SA N E D W A RD S H O W E A N D W A Y N E
EDWARDS, WRONGFUL DEATH BENEFICIARIES
OF MYRTICE EDWARDS, DECEASED
DATE OF JUDGMENT: 03/05/2009
TRIAL JUDGE: HON. ROBERT P. CHAMBERLIN
COURT FROM WHICH APPEALED: TALLAHATCHIE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS: GAYE NELL LOTT CURRIE
ATTORNEYS FOR APPELLEES: WILLIAM LISTON
ALAN D. LANCASTER
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: REVERSED AND REMANDED - 12/09/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE WALLER, C.J., RANDOLPH AND CHANDLER, JJ.
RANDOLPH, JUSTICE, FOR THE COURT:
¶1. On June 9, 2007, eighty-seven-year-old Myrtice Edwards died at Tallahatchie General
Hospital and Extended Care Facility (“TGH”), a community hospital. In October 2007,
Edwards’s daughter and son, Susan Edwards Howe and Wayne Edwards (“Edwards”), sent
a notice of claim and letter to the Tallahatchie County chancery clerk and the attorney for the
Tallahatchie County Board of Supervisors, asserting a wrongful-death claim against
Tallahatchie County. The notice of claim was not directed to TGH and was not filed with
Bobby Joe Brunson, Jr., the Administrator and Chief Executive Officer (“CEO”) of TGH,
as required by Mississippi Code Section 11-46-11(1). See Miss. Code Ann. § 11-46-11(1)
(Rev. 2002). In late November 2007, Tallahatchie County’s insurance representative faxed
a copy of the notice and letter to Brunson. No notice of claim to TGH was ever filed as
statutorily required. See id.
¶2. On June 2, 2008, Edwards filed a complaint against TGH and Barbara Criswell,
among others, for the alleged wrongful death of Myrtice Edwards. TGH responded with a
“Motion to Dismiss” asserting that Edwards had failed to comply with Mississippi Code
Section 11-46-11(1), which provides the claimant “shall file a notice of claim” with TGH’s
CEO, Brunson, at least ninety days prior to filing the complaint. Id. The motion added that
“[b]ecause the statute of limitations period has now passed, [the] claims should be dismissed
with prejudice.”
¶3. Following hearing, the Circuit Court of Tallahatchie County entered an “Order
Denying Motion for Summary Judgment.” While noting that “proper service of notice to
TGH would be on the [CEO] of TGH not Tallahatchie County[,]” the circuit court found that
the strict-compliance standard applied to Section 11-46-11(1) was limited to the ninety-day-
notice requirement, and concluded “because TGH timely received a copy of the notice that
was sent to the County and that they have presented no evidence that they will be in any
manner prejudiced, that this constitutes substantial compliance under the statute . . . .”
(Emphasis added.) Following that ruling, this Court granted TGH’s “Petition for
Interlocutory Appeal.”
2
FACTS
¶4. On May 16, 2007, Myrtice Edwards was admitted to TGH. On June 6, 2007, she was
transferred to the emergency room of TGH, where she died on June 9, 2007.
¶5. On October 17, 2007, former counsel for Edwards, sent the following:
ATTENTION: THIS CORRESPONDENCE IS A NOTICE OF CLAIM SENT
PURSUANT TO M.C.A. § 11-46-11(2)
Sent Certified Mail, Return Receipt Requested
Honorable Anita Mullen Fountain
Tallahatchie County Chancery Clerk
P.O. Box 350
Charleston, Mississippi 38921
Mr. Thomas Reynolds, Esq.
Tallahatchie County Attorney[1]
P.O. Box 220
Charleston, Mississippi 38921
Claimant: Wrongful death beneficiaries of [Edwards]
Date of claim: June 9, 2007
Place of loss: Tallahatchie General Hospital
Mechanism of injury: Wrongful death
Extent of injury: Wrongful death
Witnesses/Tortfeasors: Dr. Barbara Criswell, Dr. Theodore T. Lewis,
Kim Upton, Tara Hervey, Angie Burnett, Karol
Knowles, J. Parks, Rall Bethel, Lisa Smiley, A.
Lamar, L. Garth, L. Suggs, P. Trontt, Amy Sykes,
Ella, C. Kimble, L. Hankins, Jayson Smith,
Angela Lana, Dr. McCune, Dr. C.M. Jordan, Dr.
Mark Gunn, Valerie McCord, B. Cresswell
Residence of Claimant: Tallahatchie County, MS
Money Damages Sought: $500,000.00
Attached to the notice was a letter which provided, in pertinent part, that:
1
Reynolds was the attorney for the Tallahatchie County Board of Supervisors, but not
for TGH.
3
Dear Ms. Fountain:
Please be advised that I represent the wrongful death beneficiaries of
[Edwards] in their cause of action against Tallahatchie County regarding the
above referenced claim. I am sending you this notice of claim in your capacity
as Chancery Clerk for Tallahatchie County.
...
After the County has had a chance to review this matter, please advise me of
its response in writing. If I do not receive any correspondence from the
County within ninety days of your receipt of this letter, I will proceed forward
with litigating this claim against Tallahatchie County.
(Emphasis added.)
¶6. In a subsequent deposition, Edwards’s former counsel testified that the notice of claim
was intended to “put [Tallahatchie] County on notice” as it was “the potential defendant .
. . .” (Emphasis added.) He acknowledged that he did not send a notice of claim to TGH’s
CEO, Brunson.
¶7. On October 22, 2007, Fountain and Reynolds received the notice to Tallahatchie
County. That same day, Reynolds forwarded the notice to the Tackett Insurance Agency.
Reynolds instructed Tackett to “notify all necessary parties to assure representation of
Tallahatchie County . . . on this matter.” (Emphasis added.) Neither Fountain nor Reynolds
informed TGH of her or his receipt of the notice. On October 23, 2007, a letter from
Tallahatchie County’s insurer, Zurich North America (“Zurich”),2 to the Tallahatchie County
Board of Supervisors, Reynolds, and Tackett concluded that coverage for Edwards’s claim
was excluded under the county’s commercial general liability policy.
2
Neither Zurich nor Tackett Insurance Agency provided liability insurance services
to TGH.
4
¶8. On or about November 27, 2007, Brunson received a copy of the notice and letter sent
to Tallahatchie County, “via facsimile from the offices of . . . Tackett Insurance Agency . .
. .” Brunson forwarded the fax to his attorney, but did not provide it to TGH’s insurer. The
record includes multiple e-mails between March and May 2008 from counsel for TGH to
Brunson and Reynolds, among others, noting that no suit had yet been filed in this matter.
¶9. On June 2, 2008, Edwards filed a complaint against “[TGH]; Barbara Criswell, FNP;
and Doe Defendants 1-15, for the real, wrongful death of [Edwards] . . . .” 3 The complaint
alleged that from May 18, 2007, through June 4, 2007, Myrtice Edwards was negligently
medicated with “improper drugs” at TGH, which “caused or contributed to her death.” The
complaint further alleged that proper notice of claim had been served more than ninety days
earlier upon Fountain and Reynolds, but failed to allege that notice of claim had been
provided to TGH and Brunson.
¶10. On June 30, 2008, TGH filed a “Motion to Dismiss,” asserting that Mississippi Code
Section 11-46-11(1) required that the notice of claim be filed with TGH’s CEO, Brunson,
and “[b]ecause [Edwards] failed to give notification of their claim prior to filing suit, their
claim must be dismissed. Because the statute of limitations period has now passed,
[Edwards’s] claims should be dismissed with prejudice.” Subsequently, the parties agreed
to conduct limited discovery for purposes of responding to the “Motion to Dismiss.”
3
At this time, another attorney represented Edwards.
5
¶11. Following a January 30, 2009, hearing, the circuit court entered an “Order Denying
Motion for Summary Judgment.” 4 According to the order, “[t]he issue . . . is [1] whether the
notice of claim sent to Tallahatchie County is sufficient under the statute, and [2] if not, was
the receipt of the notice of claim by the CEO of TGH sufficient notice under the statute.”
As to (1), the circuit court concluded that Edwards “sued TGH and proper service of notice
to TGH would be on the [CEO] of TGH not Tallahatchie County.” Regarding (2), the circuit
court stated that:
every post-[University of Mississippi Medical Center v. Easterling, 928 So.
2d 815 (Miss. 2006)] case found by this [c]ourt on the issue of [Section] 11-
46-11(1) specifically notes the requirement of strict compliance with the 90
day notice. Those cases deal with situations where no notice was given or suit
was filed within the ninety days. The post-Easterling cases were decided on
issues other than who received the notice. This [c]ourt assumes that if the
Supreme Court in Easterling had meant to overrule Powell [v. City of
Pascagoula, 752 So. 2d 999 (Miss. 1999)] as to the requirement of substantial
compliance in regard to whom notice is sent, that the Supreme Court would
have specifically overruled Powell or, alternatively, noted in . . . Easterling .
. . that strict compliance was the law as to [Section] 11-46-11(1) rather than
specifically noting it applied to the 90 day requirement contained in [Section]
11-46-11(1).
Based thereon, the circuit court concluded that:
because TGH timely received a copy of the notice that was sent to
[Tallahatchie County] and . . . they have presented no evidence that they will
be in any manner prejudiced, . . . this constitutes substantial compliance under
the statute and is the appropriate standard under Powell as relates to the person
receiving the actual notice. . . . [T]here has been no argument presented that
the 90 day notice requirement under [Section] 11-46-11(1) was not otherwise
4
TGH’s “Motion to Dismiss” was converted into a motion for summary judgment by
virtue of depositions presented to the circuit court. See Miss. R. Civ. P. 12(b) (“[i]f, on a
motion to dismiss for failure of the pleading to state a claim upon which relief can be
granted, matters outside the pleadings are presented to and not excluded by the court, the
motion shall be treated as one for summary judgment . . . .”).
6
strictly complied with. Therefore, . . . based on the case law and this [c]ourt’s
interpretation of the statute, . . . notice was properly given.
¶12. Thereafter, this Court granted TGH’s “Petition for Interlocutory Appeal.”
ISSUES
¶13. On appeal, TGH presents the following issues:
(1) Whether the sovereign immunity of a political subdivision is waived where
a party fails to give notice under Mississippi Code Section 11-46-11(1) of an
intent to sue that particular entity.
(2) Whether substantial compliance is the standard with regard to the notice
provision of Mississippi Code Section 11-46-11(1), particularly that notice
must be served upon the proper entity, and if so, if the fact that the chief
executive officer of a public hospital by happenstance receives a copy of a
notice of an intent to sue another party constitutes substantial compliance with
the pre-suit notice provisions of Mississippi Code Section 11-46-11(1).
(3) When sovereign immunity has not been waived, whether the simple filing
of a complaint can toll the statute of limitations.
STANDARD OF REVIEW
¶14. This Court has stated that it:
[“]reviews errors of law, which include the proper application of the
Mississippi Tort Claims Act, de novo.” [Fairley v. George County, 800 So. 2d
1159, 1162 (Miss. 2001)]. Moreover, we review summary judgments de novo.
Grange Mut. Cas. Co. v. U.S. Fid. & Guar. Co., 853 So. 2d 1187, 1190 (Miss.
2003). The facts are viewed [in] the light most favorable to the nonmovant.
. . . A nonmovant must show by specific facts that there exists a genuine issue
of material fact; that is, the nonmoving party may not rest on allegations or
denials in the pleadings to withstand the motion. Id.
Fairley v. George County, 871 So. 2d 713, 716 (Miss. 2004).
7
ANALYSIS
I. Whether the sovereign immunity of a political subdivision is waived
where a party fails to give notice under Mississippi Code Section
11-46-11(1) of an intent to sue that particular entity.
and
II. Whether substantial compliance is the standard with regard to the
notice provision of Mississippi Code Section 11-46-11(1),
particularly that notice must be served upon the proper entity, and
if so, if the fact that the chief executive officer of a public hospital
by happenstance receives a copy of a notice of an intent to sue
another party constitutes substantial compliance with the pre-suit
notice provisions of Mississippi Code Section 11-46-11(1).
¶15. “The basic principle of sovereign immunity is that the ‘king can do no wrong.’
Consequently, the [S]tate is free from any liabilities unless it carves an exception. These
exceptions come in the form of tort claims acts.” Mohundro v. Alcorn County, 675 So. 2d
848, 852 (Miss. 1996) (quoting Grimes v. Pearl River Valley Water Supply Dist., 930 F.2d
441, 443-44 (5th Cir. 1991)). See also Miss. Code Ann. § 11-46-7(1) (Rev. 2002) (“[t]he
remedy provided by this chapter against a governmental entity or its employee is exclusive
of any other civil action or civil proceeding by reason of the same subject matter against the
governmental entity or its employee . . . .”); Reaves v. Randall, 729 So. 2d 1237, 1240 (Miss.
1998) (the Mississippi Tort Claims Act (“MTCA”) was “adopted to reduce the harsh effect”
of sovereign immunity). In enacting the MTCA, the Legislature reaffirmed the principle of
sovereign immunity. See Miss. Code Ann. § 11-46-3 (Rev. 2002). Nonetheless, in
Mississippi Code Section 11-46-5(1), the Legislature waived such immunity of the state and
its political subdivisions “from claims for money damages arising out of the torts of such
governmental entities and the torts of their employees while acting within the course and
8
scope of their employment[5 ] . . . to the extent of the maximum amount of liability provided
for in Section 11-46-15.” Miss. Code Ann. § 11-46-5(1) (Rev. 2002). But the Legislature
added that “any claim made or suit filed against a governmental entity or its employee to
recover damages for any injury for which immunity has been waived under this chapter shall
be brought only under the provisions of this chapter . . . .” Miss. Code Ann. § 11-46-7 (Rev.
2002). See also Easterling, 928 So. 2d at 818 (“[t]he [MTCA] sets forth procedures a
claimant must follow in order to assert a claim against a governmental entity.”) (emphasis
added); Vortice v. Fordice, 711 So. 2d 894, 896 (Miss. 1998). The Legislature further
mandated clear requirements to be met by an individual seeking to avail himself or herself
of the remedies arising under the provisions of the chapter. Miss. Code Ann. § 11-46-11(1)
(Rev. 2002).
¶16. As a community hospital located in Tallahatchie County, Mississippi, TGH is a
“political subdivision” of the State. See Miss. Code Ann. § 11-46-1(i) (Rev. 2002).
Accordingly, Edwards is subject to the notice requirements and statutes of limitations
provided in Mississippi Code Section 11-46-11. See Miss. Code Ann. § 11-46-11 (Rev.
2002). Section 11-46-11(1) provides, in pertinent part, that:
[a]fter all procedures within a governmental entity have been exhausted, any
person having a claim for injury arising under the provisions of this chapter
against a governmental entity or its employee shall proceed as he might in any
action at law or in equity; provided, however, that ninety (90) days prior to
maintaining an action thereon, such person shall file a notice of claim with the
chief executive officer of the governmental entity. Service of notice of claim
may also be had in the following manner: If the governmental entity is a
5
However, Mississippi Code Section 11-46-11(9) sets forth a list of outright
exemptions from governmental liability. See Miss. Code Ann. § 11-46-11(9) (Rev. 2002).
9
county, then upon the chancery clerk of the county sued;[6 ] if the governmental
entity is a municipality, then upon the city clerk.
Miss. Code Ann. § 11-46-11(1) (Rev. 2002) (emphasis added). Based upon subsection (1),
the circuit court correctly found that “proper service of notice to TGH would be on the
[CEO] of TGH not Tallahatchie County.”
¶17. However, the circuit court’s conclusion that “substantial compliance” is the standard
“in regard to whom the notice is sent” is erroneous. This Court has a “constitutional mandate
to faithfully apply the provisions of constitutionally enacted legislation.” Easterling, 928 So.
2d at 820. The Legislature’s statutory use of the term “shall” connotes a mandatory
requirement. See Weiner v. Meredith, 943 So. 2d 692, 694 (Miss. 2006). Section 11-46-
11(1) expressly provides that the notice of claim shall be filed “with the chief executive
officer of the governmental entity.” Miss. Code Ann. § 11-46-11(1) (Rev. 2002). “It would
set a dangerous precedent if this Court were to ignore specific statutory requirements for
notice.” Reaves, 729 So. 2d at 1240 (quoting Carpenter v. Dawson, 701 So. 2d 806, 808
(Miss. 1997)). This Court has expressly and clearly stated that Section 11-46-11(1) provides
a “mandatory notice requirement . . . .” S. Cent. Reg’l Med. Ctr. v. Guffy, 930 So. 2d 1252,
1259 (Miss. 2006) (quoting Black v. City of Tupelo, 853 So. 2d 1221, 1226 (Miss. 2003)).
See also Arceo v. Tolliver, 19 So. 3d 67, 72 (Miss. 2009) (“the MTCA requires written notice
of a claim in advance of the filing of a lawsuit, a requirement which . . . is strictly applied”);
6
This Court finds this provision of Section 11-46-11(1) inapplicable. While
Tallahatchie County owns TGH, as a “community hospital,” TGH is a “separate statutory
entit[y]” from Tallahatchie County. See Miss. Code Ann. §§ 11-46-1(i) (Rev. 2002) (a
“community hospital” is designated as a “political subdivision” separate and apart from a
county or municipality); 41-13-10(c) (Rev. 2002) (defining “community hospital”).
10
Price v. Clark, 21 So. 3d 509, 518 (Miss. 2009) (“[s]trict compliance with statutory notice
is required . . . ”); Easterling, 928 So. 2d at 820 (quoting Ivy v. GMAC, 612 So. 2d 1108,
1116 (Miss. 1992)) (“the ninety-day notice requirement . . . is a ‘hard-edged, mandatory rule
which the Court strictly enforces’”).7 In Arceo, this Court added that, under the Medical
Malpractice Tort Reform Act,8 “[t]he mandatory nature of the notice requirement is such that
what the recipient may or may not actually have known is irrelevant.” Arceo, 19 So. 3d at
72. Therefore, to the extent that Powell holds otherwise, it is overruled.9
7
With respect to the argument that the strict-compliance standard of Easterling
applied “only . . . in those cases in which there has been no compliance with the ninety-day
notice requirement[,]” the Mississippi Court of Appeals has held:
[w]e do not agree. It is apparent that Easterling’s strict compliance standard
is meant to apply equally to cases in which no notice is filed, notice is filed
after the complaint, or the complaint is filed sooner than ninety days after
filing notice. In so finding, we not only look to the facts of Easterling but also
the facts of those cases it explicitly overruled.
Brown v. Sw. Miss. Reg’l Med. Ctr., 989 So. 2d 933, 936-37 (Miss. Ct. App. 2008)
(emphasis added).
8
“This Court repeatedly has applied the same standards of construction and
application to the Medical Malpractice Tort Reform Act as those applied to the [MTCA].”
Arceo, 19 So. 3d at 71.
9
Powell also is a factually unique case. There, the plaintiff sued the City of
Pascagoula following an automobile accident with a city police officer. See Powell, 752 So.
2d at 1001. The notice-of-claim letter had been sent to the city clerk at a time when Section
11-46-11(1) provided only that notice of claim shall be filed “with the chief executive officer
of the governmental entity[,]” although even the city attorney had advised the plaintiff that
service upon the city clerk was “as good as any.” Id. at 1001, 1003 (quoting Miss. Code
Ann. § 11-46-11(1)). By the time this Court ruled upon the case, however, the statute had
been amended to permit service of the notice of claim upon the city clerk when suing a
municipality. See id.
11
¶18. It is undisputed that Edwards never filed the statutorily required notice with TGH’s
CEO, Brunson, and absent compliance with the statute, TGH’s immunity is intact. See Miss.
Code Ann. § 11-46-7(1) (Rev. 2002) (“any claim made or suit filed against a governmental
entity or its employee to recover damages for any injury for which immunity has been
waived under this chapter shall be brought only under the provisions of this chapter . . . .”).
As Fountain and Reynolds were not the “chief executive officer of the governmental
entity[,]” under Mississippi Code Section 11-46-11(1), they were not the proper parties to
receive the notice of claim under the MTCA. See Parker v. Harrison County Bd. of
Supervisors, 987 So. 2d 435, 440-41 n.7 (Miss. 2008) (Associated Adjusters was not the
CEO of the governmental entity, therefore, Associated Adjusters was “not the proper party
to receive notice under the [MTCA].”); Harris v. Miss. Valley State Univ., 873 So. 2d 970,
988 (Miss. 2004) (“[T]he President of MVSU is the chief executive officer of the university.
IHL is not a substitute for the President of MVSU.”). Edwards failed to comply with the
mandatory requirements of Section 11-46-11(1) by failing to file a notice of claim with
TGH’s CEO, Brunson. If notice is not given to the proper entity, the entire purpose of the
ninety-day period is thwarted. Under the circuit court’s ruling, a public hospital could be
deemed to be on notice of a claim regardless of the form or source of its information. As
Edwards was and remains noncompliant with the mandatory provisions of Section 11-46-
11(1), the lawsuit should be dismissed. See Price, 21 So. 3d at 522 (“[b]ecause Price failed
to comply with the requisite notice requirements, dismissal was the proper remedy . . . .”).
12
III. When sovereign immunity has not been waived, whether the simple
filing of a complaint can toll the statute of limitations.
¶19. On this issue, the parties seek an advisory opinion in the event that Edwards refiles
suit. But this Court does not issue advisory opinions. See Scoggins v. Baptist Mem’l Hosp.-
Desoto, 967 So. 2d 646, 649 n.1 (Miss. 2007) (“The purpose of our appellate review is not
to settle questions in the abstract or to issue advisory opinions.”). Additionally, as the circuit
court entered an “Order Denying Motion for Summary Judgment,” we will not hold it in
error on a matter upon which it has not yet ruled. In sum, the issue of the tolling of the
statute of limitations “is premature and not ripe for appellate review, and we decline to
address it today.” Thoms v. Thoms, 928 So. 2d 852, 855 (Miss. 2006).
CONCLUSION
¶20. Accordingly, this Court reverses the Circuit Court of Tallahatchie County’s “Order
Denying Motion for Summary Judgment,” and remands for entry of a judgment consistent
with this opinion.
¶21. REVERSED AND REMANDED.
WALLER, C.J., CARLSON, P.J., DICKINSON, LAMAR, CHANDLER AND
PIERCE, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY GRAVES, P.J.
KITCHENS, JUSTICE, DISSENTING:
¶22. For the reasons explained by my colleagues in numerous separate opinions regarding
compliance with statutory presuit notice requirements, I respectfully disagree that the failure
strictly to comply with these kinds of legislative mandates requires dismissal of any sort.
See, e.g., Arceo v. Tolliver (“Tolliver II”), 19 So. 3d 67, 79-81 (Miss. 2009) (Graves, P.J.,
13
dissenting); Price v. Clark, 21 So. 3d 509, 531-40 (Miss. 2009) (Graves, P.J., dissenting);
Bunton v. King, 995 So. 2d 694, 697-98 (Miss. 2008) (Graves, J., dissenting); Cmty. Hosp.
of Jackson v. Goodlett, 968 So. 2d 391, 398-400 (Miss. 2007) (Diaz, P.J., dissenting);
Caldwell v. N. Miss. Med. Ctr., 956 So. 2d 888, 895-97 (Miss. 2007) (Diaz, J., dissenting);
Arceo v. Tolliver (“Tolliver I”), 949 So. 2d 691, 698-704 (Miss. 2006) (Graves, J.,
dissenting); Univ. of Miss. Med. Ctr. v. Easterling, 928 So. 2d 815, 820-21 (Miss. 2006)
(Easley, J., dissenting); Fairley v. George County, 871 So. 2d 713, 718-24 (Miss. 2004)
(Easley, J., concurring in result). That Tallahatchie General Hospital had actual notice of the
potential lawsuit reinforces my opinion that the trial judge did not err by refusing to dismiss
the claim.
¶23. Setting aside my respectful disagreement with the majority regarding noncompliance,
I take issue with the Court’s refusal to address whether the dismissal should be with or
without prejudice. The majority holds that our addressing this issue would constitute an
advisory opinion; however, the issue is squarely before us. By holding that the case should
simply be dismissed without addressing whether such dismissal should be with or without
prejudice, the trial judge and the parties, on remand, are left without the guidance they have
every right to expect from us. This is a question of law, and we are duty-bound to address
it. Indeed, the case is before us on an interlocutory appeal, a process that is designed to: “(1)
Materially advance the termination of the litigation and avoid exceptional expense to the
parties; or (2) Protect a party from substantial and irreparable injury; or (3) Resolve an issue
of general importance in the administration of justice.” M.R.A.P. 5(a). Today’s majority
opinion does none of these things and, thus, is wasteful of judicial resources.
14
¶24. Morever, in Tolliver I, 949 So. 2d 691, a case with an almost identical procedural
posture, this Court had no reservations about giving direction to the trial court. In that case,
the plaintiff had failed to provide a notice-of-claim letter pursuant to Mississippi Code
Section 15-1-36(15) (Rev. 2003). Id. at 692. The defendants moved to dismiss the case or,
in the alternative, grant summary judgment, and the trial court denied the motion. Id. After
granting the defendants’ petition for interlocutory appeal, this Court held that the trial court
erred in denying summary judgment and that the case should have been dismissed without
prejudice. Id. at 692, 698. As in Tolliver I, this Court ought to clarify whether dismissal is
to be with or without prejudice.
¶25. But, because I would affirm the trial court’s denial of summary judgment, inasmuch
as the defendants received actual notice of the suit, albeit somewhat circuitously, I
respectfully dissent.
GRAVES, P.J., JOINS THIS OPINION.
15