Fowler v. White
85 So. 3d 287
| Miss. | 2012Background
- Fowler filed a wrongful-death action Aug. 4, 2009, alleging medical negligence by Sanctuary, Dr. White, and Lehman, with concealment alleged.
- Presuit notice under Miss. Code Ann. § 15-1-36(15) was not timely served; Sanctuary, Lehman, and Dr. White asserted lack of sixty days’ presuit notice as a defense.
- Fowler amended the complaint Oct. 16, 2009, adding Sandlin and Fred’s Rexall Pharmacy; defendants moved to dismiss or for summary judgment on presuit-notice grounds.
- Presuit letters dated May 6, 2008 related to other Sanctuary cases were introduced; Luton and Gholston affidavits created conflicting accounts about mailing Fowler’s May 6, 2008 letters.
- Hearing held May 11, 2010; Fowler sought to introduce a second affidavit (May 6, 2008) clarifying mailing, which the court treated as insufficient to raise presumption of delivery.
- Nov. 8, 2010, the trial court granted Sanctuary’s motions to dismiss without prejudice for failure to establish presuit notice; Rule 59(e) motion for reconsideration was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether presuit notice failure warranted dismissal under § 15-1-36(15). | Fowler asserts evidence supports a presumption of notice delivery. | Sanctuary et al. argue no proof of timely presuit delivery for Fowler’s case. | Dismissal affirmed; insufficient evidence to establish presuit-delivery presumption. |
| Whether the trial court properly treated the dispositive presuit-notice motions as dismissals. | The notices were timely or could be construed as timely under Rule 5 mechanics. | Noncompliance requires dismissal, not summary judgment. | Correct to treat as dismissal under § 15-1-36(15). |
| Whether Luton's first affidavit could raise a presumption of delivery. | Luton’s testimony showed mailing of May 6, 2008 notices in Fowler’s case. | Affidavit was vague and did not specify Fowler’s case mailing. | Trial court evidenced substantial evidence to find no presumption; affirmed. |
| Whether Fowler waived the presuit-notice defense by Sanctuary’s participation and whether Rule 59(e) relief was proper. | Defendant waived defense; Rule 59(e) should correct error. | Waiver not preserved; reconsideration inappropriate. | Waiver issue procedurally barred; Rule 59(e) denial affirmed. |
Key Cases Cited
- Williams v. Skelton, 6 So.3d 428 (Miss.2009) (strict compliance with presuit-notice requires dismissal)
- Proli v. Hathorn, 928 So.2d 169 (Miss.2006) (Rule 5 mechanics apply to presuit notice)
- Brocato v. Mississippi Publishers Corp., 503 So.2d 241 (Miss.1987) (Rule 5 mechanics may govern presuit notice)
- Thames v. Smith Ins. Agency, Inc., 710 So.2d 1213 (Miss.1998) (presumption that mailed notices are timely delivered)
- Brewer v. Wiltcher, 22 So.3d 1188 (Miss.2009) (burden shifts after presumption is raised)
- New York Life Ins. Co. v. Quinn, 171 Miss. 396, 157 So. 902 (Miss.1934) (mailing with postage and address raises presumption of delivery)
- Holt v. Mississippi Employment Sec. Comm’n, 724 So.2d 466 (Miss.Ct.App.1998) (burden-shifting rebuttal framework for presuit-notice)
- Rankin v. Am. Gen. Fin., 912 So.2d 725 (Miss.2005) (Rule 59(e) standards for reconsideration)
- Internal Engine Parts Group, Inc. v. City of Jackson, 903 So.2d 60 (Miss.2005) (abuse of discretion standard for Rule 59(e) rulings)
- MST, Inc. v. Miss. Chem. Corp., 610 So.2d 299 (Miss.1992) (summary-judgment framework; propriety of dispositive motion)