Miss. SC: Great-nephew not a beneficiary in wrongful death suit

Jessica M. Karmasek Mar. 18, 2011, 7:51am


JACKSON, Miss. (Legal Newsline) - The Mississippi Supreme Court has upheld a trial judge's decision in a wrongful death lawsuit that said a great-nephew lacked standing because he is not considered a beneficiary under the state's wrongful death statute.

The Court, in its opinion filed March 10, was asked to determine whether the general saving statute of Mississippi Code Section 15-1-69 applies when an original suit is dismissed for lack of standing.

Because the original complaint was dismissed with prejudice, and no appeal was taken from that dismissal, the Court did not reach this issue, and affirmed the trial court's judgment in favor of the defendants.

Ellen Pope died on Jan. 12, 2004, while a resident of the Shelby Nursing and Rehabilitation Center. Her great-nephew, James Payne, filed a wrongful death suit on Aug. 25, 2004 against Shelby, Delta Heath Group, Inc., Pensacola Health Group, Inc., and a number of individuals.

Payne filed the suit as the personal representative of his great-aunt and in his individual capacity as a wrongful death beneficiary. However, as a great-nephew, Payne was not a wrongful death beneficiary under the wrongful death statute. Moreover, when Payne filed the suit, he had not yet been appointed administrator of his great-aunt's estate. He was not appointed administrator until seven and a half months after filing the wrongful death action, according to Court documents.

On Oct. 6, 2006, the defendants filed a motion to dismiss, or in the alternative, for summary judgment, arguing that Payne lacked standing to bring the suit. Payne responded by filing a motion to substitute himself as administrator of his great-aunt's estate under Mississippi Rule of Civil Procedure 17(a). The trial court granted Payne's motion to substitute and denied the defendants' motion to dismiss.

The state's high court then granted the defendants' petition for interlocutory appeal, reversing the trial judge's denial of the defendants' motion to dismiss, finding that, because Payne had not been appointed administrator of his great-aunt's estate at the time he filed the lawsuit and because he was not a wrongful death beneficiary as defined by Mississippi Code Section 11-7-13, he lacked standing.

The decision did not indicate whether the dismissal should have been with or without prejudice, but it remanded the case to the trial court "for entry of an order consistent with this opinion."

On remand, the trial judge dismissed the case with prejudice and entered a final judgment in favor of the defendants. The order was entered on Oct. 28, 2008. Payne did not appeal from that order.

Then, on June 29, 2009, Payne attempted to revive the wrongful death action by filing another complaint. The only material difference between the second complaint and the original complaint was that Payne did not sue Shelby or the original individual defendants. Payne instead sued two named entities, Delta Health Group, Inc., and Pensacola Health Trust, Inc., and 10 unnamed entities.

Delta immediately filed a motion to dismiss, arguing that the case previously had been dismissed with prejudice and that the statute of limitations had expired. After the plaintiff's response had been filed, Pensacola filed a motion to dismiss for deficient service of process. In the alternative, Pensacola moved to join Delta's motion.

A hearing on the motions to dismiss was held on Oct. 14, 2009. At the conclusion of the hearing, the trial judge requested additional briefing on Delta's motion to dismiss. Regarding the issue of service of process raised by Pensacola, the trial judge agreed to allow the plaintiff an additional 60 days in which to serve Pensacola.

On Nov. 9, 2009, the trial judge entered an order granting Delta's motion to dismiss. The judge found that the general saving statute did not apply because the original action was not "duly commenced" and because the case had been dismissed previously with prejudice. The order never mentioned Pensacola, and the parties concede that Pensacola is not a party to this appeal because it never was served properly with the complaint.

Justice James W. Kitchens, who authored the Court's opinion, said the trial judge was correct in finding that the dismissal with prejudice of the original suit barred any further litigation of any or all of the same claims.

A dismissal with prejudice, the Court explained, "bars the right to bring or maintain an action on the same claim or cause."

"Thus, the plaintiff was barred from bringing a subsequent action after the original complaint was dismissed with prejudice," it wrote. "On appeal, the plaintiff cites case law holding that dismissal for lack of standing is a dismissal based on form rather than substance, and thus, the general saving statute should apply. However, this argument should have been made via an appeal from the dismissal of the original suit.

"In order to file a second complaint, the plaintiff would have had to challenge the dismissal. Because no attack was made, any and all further actions were procedurally barred."

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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