Opinion
No. 2003-CA-01733-COA.
July 13, 2004.
COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. KATHY KING JACKSON, DATE OF TRIAL COURT JUDGMENT: 7/16/2003
DISPOSITION: AFFIRMED
ATTORNEY FOR APPELLANT: HENRI M. SAUNDERS
ATTORNEY FOR APPELLEES: MATTHEW FLOYD JONES
BEFORE SOUTHWICK, P.J., MYERS AND CHANDLER, JJ.
¶ 1. A motion for summary judgment was filed by a defendant doctor and his clinic who had been added as parties by an amended complaint. The motion was granted on the basis that the amendment was made after the expiration of the period of limitations. The plaintiff appeals. We find that the trial judge correctly interpreted the controlling law. We affirm.
¶ 2. Iris M. Wilner was admitted to Singing River Hospital for a diagnostic laparoscopy on January 27, 1997. Immediately after the procedure, she noticed pain, weakness, and numbness in her left leg. The condition continued and she was diagnosed with compression neuropathy. On February 12, 1998, Wilner filed suit naming as defendants Singing River Hospital System, a nurse, and John Does 1-4. Wilner took Dr. M. Neil White's deposition on August 12, 1998. Dr. White worked with Gulf Coast OB/GYN, P.A.
¶ 3. On January 27, 1999, Wilner filed an amended complaint, without leave of court, naming four additional defendants. On that day, she also filed a motion for leave to amend. Among those who were newly named as defendants were Dr. White and Gulf Coast OB/GYN. Two other parties who were named in the new pleadings are not involved in this appeal. On August 20, 1999, Wilner noticed a hearing on her motion for leave to amend. The circuit court denied the motion and dismissed the amended complaint. On appeal, we reversed and ordered that on remand the amendment be allowed. Wilner v. White, 788 So.2d 822 (Miss.Ct.App. 2001). On remand, the complaint was amended. White and Gulf Coast OB/GYN's new motion for summary judgment based on the applicable statute of limitations was then granted. The circuit court found that the amended complaint did not relate back to the original complaint and granted the motion.
DISCUSSION
1. First appeal
¶ 4. The reach of this Court's decision in the first appeal is one of the central disputes now on the second appeal. The initial appeal was from the trial judge's denial of Wilner's motion to amend in order to name White and Gulf Coast OB/GYN as defendants. We relied on the court rule that even though a "party may amend his pleading only by leave of court or upon written consent of the adverse party; leave shall be freely given when justice so requires." M.R.C.P. 15(a), quoted in Wilner, 788 So.2d at 824. Only in exceptional circumstances should an amendment be refused, such as when actual prejudice to the opposing party would occur or due to futility of the amendment. Id. The Court then addressed only the prejudice issue, and stated that nothing in the record revealed "any undue prejudice caused by the allowance of Wilner's amended complaint." Id.
¶ 5. This is the point in our prior opinion that becomes the fulcrum on which application of the "law of the case" doctrine turns for today's issues. That doctrine prevents altering the earlier-determined legal principles at the time of later proceedings in the same case.
The doctrine of the law of the case is similar to that of former adjudication, relates entirely to questions of law, and is confined in its operation to subsequent proceedings in the case. Whatever is once established as the controlling legal rule of decision, between the same parties in the same case, continues to be the law of the case, so long as there is a similarity of facts. This principle expresses the practice of courts generally to refuse to reopen what has previously been decided. It is founded on public policy and the interests of orderly and consistent judicial procedure.
Florida Gas Exploration Co. v. Searcy, 385 So.2d 1293, 1295 (Miss. 1980), quoting Mississippi College v. May, 241 Miss. 359, 366, 128 So.2d 557 (1961). When an appellate court considers a second appeal in a case that it previously reviewed, its prior holdings usually are not to be changed. Exceptions include obvious and significant errors that create an injustice, which could include intervening changes in the law. Florida Gas, 385 So.2d at 1295.
¶ 6. Our prior holding solely determined that the trial judge erred by denying an amendment to a complaint, since such amendments should be freely permitted. We held that "under the `freely given where justice so requires' standard, Wilner should have been allowed to amend her complaint and to test her claim on the merits since even the few facts given appear to present a proper subject for relief." Wilner, 788 So.2d at 824.
¶ 7. The dissent in the first appeal also viewed the Court's holding as limited to the issue of whether an amendment should have been allowed. In that limitation, the dissent argued that we erred. The dissent stated that failure on the first appeal to consider the issue of the controlling statute of limitations could make the remand an "empty act."
Without this relation back [of the amendment], the claim against these defendants was barred by the statute of limitations by the time they could have properly been made parties. To permit them to be added as defendants under those circumstances would be an empty act.
The trial court was economizing limited judicial resources by simply denying the right to amend rather than permitting the amendment, only to subsequently dismiss these defendants when they inevitably raised the defense of the statute of limitations.
Wilner, 788 So.2d at 826 (McMillin, C.J., dissenting).
¶ 8. It is true that the majority referred to "futility" as a reason not to permit an amendment, but the Court never analyzed whether this amendment would fit that category. Wilner, 788 So.2d at 824. The only issue explicitly resolved in the initial appeal was whether the rule requiring liberality in amendments to complaints had been violated. Only Rule 15(a) on permitting amendments to be made was discussed. The separate issue of whether a different subsection of the rule permits the amendment to "relate back" was not referenced. As we will show, the analysis of whether an amendment relates back is no perfunctory matter such that its answer can be reasonably implied in the first appeal's ruling on the policy of liberal amendments.
¶ 9. If there is anything in our 2001 decision that was an implied holding as to the effectiveness of Wilner's amendment, and we do not need to decide whether there was, it might be seen in the last sentence of the Court's opinion that the "motion to amend was filed within the statutory time allowed and should have been granted." Wilner, 788 So.2d at 824. What has become clear since our first opinion is that filing a motion for leave to amend within the statute of limitations period is not enough. We will later examine the Supreme Court's holding to that effect. Curry v. Turner, 832 So.2d 508 (Miss. 2002). Thus, even if we did implicitly conclude that Wilner's amendment would allow a trial on the merits, later superior authority has overridden such a conclusion. "Law of the case" does not save any contrary earlier determination by us.
¶ 10. We therefore conclude that the law of the case doctrine has no application to the basis on which the trial judge ruled after the remand Whether the trial judge erred in the ruling is a different matter. We turn to that now.
2. "Relation back" of amendment
¶ 11. After the amendment was allowed on remand, Dr. White and Gulf Coast OB/GYN argued they were not fictitious parties under Mississippi Rule of Civil Procedure 9(h), that they were known to Wilner as possible defendants so there was no mistake as to their identity under Rule 15(c), and that the statute of limitations had expired. The trial judge agreed and granted judgment.
¶ 12. Mississippi Rule of Civil Procedure 15(a) states that a party may amend a pleading before a response is served or within thirty days of its being served. Wilner did not do so. What the first appeal resolved was that she was entitled to an amendment later sought because of language in the same rule that "leave shall be freely given when justice so requires." M.R.C.P. 15(a).
¶ 13. On remand and now on appeal, the central issue is whether the amendment "related back" so as to avoid any statute of limitations problem in the joinder of new parties. A specific but subsequent part of the same Rule 15 on granting amendments sets the requirements.
Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by Rule 4(h) for service of the summons and complaint, the party to be brought in by amendment:
(1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining the party's defense on the merits, and
(2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. An amendment pursuant to Rule 9(h) is not an amendment changing the party against whom a claim is asserted and such amendment relates back to the date of the original pleading.
M.R.C.P. 15(c).
¶ 14. An initial question is the date on which to consider an amendment to be effective. Wilner filed the motion for leave to amend and an actual amendment on the last day of the limitation period, which was two years from the date of the alleged negligence. Miss. Code Ann. § 15-1-36 (Rev. 2003) (two years to file on certain malpractice claims). Since leave to amend must be granted under Rule 15(c) before an actual amendment has occurred, the question has arisen in other suits of whether the motion for leave tolls the limitation period. The Supreme Court has evaluated this issue since the first Wilner appeal. Curry v. Turner, 832 So.2d 508 (Miss. 2002).
¶ 15. In Curry, the plaintiff was allowed to amend her complaint to add additional defendants. Id. at 511. However, the court later dismissed the case because of its finding that the statute of limitations had expired prior to the amendment. The Supreme Court affirmed. Id. Curry argued that the statute of limitations is tolled if the motion to amend is made prior to the running of the statute. Id. The Supreme Court rejected the concept of tolling. Instead, the issue is whether the Rule 15(c) standards on an amendment's relating back to a prior date had been satisfied. Id. at 513. If leave for the amendment is given only after the period within which suit is to be brought under the applicable statute of limitations has expired, then Rule 15(c) takes center stage.
¶ 16. Before analyzing those rules, we examine the specific facts of Wilner's amendment. Her attorney has acknowledged that he knew at least by the time of a deposition on August 12, 1998, of the involvement of the doctor and clinic that were the subject of the amendment. The trial judge asked Wilner's counsel, "Did you learn anything in their deposition that would indicate to you that your client had a cause of action against [White and Gulf Coast OB/GYN] at that time?" Counsel answered, "Yes." At the 1999 hearing on the motion to amend, Wilner's attorney said that he had waited until the last day of the limitations period because he was unsure what kind of case he wanted to bring. He was in settlement negotiations with the hospital defendant and said that "it may not be necessary" to bring the new parties into the suit if the hospital settlement was satisfactory.
¶ 17. The trial court in granting summary judgment after our remand concluded as a matter of fact that Wilner and her attorney were aware no later than five months before the expiration of the limitations period of the identity of the new potential parties, could have included the new defendants at that time, and were "merely tardy" in making the amendment. We find essentially undisputed evidence to support that factfinding.
¶ 18. The legal standards that are to be applied against those facts under Rule 15(c) as discussed in Curry are not complex. All parties agree that the amended complaint arose from the same "conduct, transaction, or occurrence" set forth in the original complaint, this being the January 27, 1997 laparoscopy. M.R.C.P. 15(c). A variety of matters may be the subjects of amendments, such as new claims or new defenses. An amendment that changes the parties against which the claim is asserted will relate back if within the statute of limitations period and the additional 120 days for service of process, the new party has received such notice of the action as will prevent prejudice, and the new party knew or should have known "that but for a mistake concerning the identity of the proper party, the action would have been brought against the party." M.R.C.P. 15(c). If the complaint uses fictitious names because the plaintiff was "ignorant of the name of an opposing party and so alleges in his pleading," then an amendment to add the newly discovered actual party "relates back to the date of the original pleading." M.R.C.P. 9(h) and 15(c) (2).
¶ 19. There is little doubt that the new parties had almost from the beginning of Wilner's initial complaint "received such notice of the institution of the action that the party will not be prejudiced in maintaining the party's defense on the merits," and thus Rule 15(c)(1) was satisfied. The trial judge specifically found that adequate notice existed.
¶ 20. As to Rule 15(c)(2), two possibilities arise in which the amendment might be found to relate back. Wilner had initially named in the complaint four Rule 9(h) parties, four "John Does" as she called them. The Supreme Court has held that the relation back provision of Rule 15(c) as to fictitious parties named under Rule 9(h) was inapplicable when delay in adding the proper party continues beyond the time that a "reasonably diligent inquiry by the appellants into the history of the deceased's medical treatment would have revealed to appellants the identities of the persons they sought to identify" as a "John Doe" unnamed party. Womble By and Through Havard on Behalf of Womble v. Singing River Hosp., 618 So.2d 1252, 1267 (Miss. 1993), but see Sparks v. Kim, 701 So.2d 1113, 1115 (Miss. 1997) (limited an unrelated holding that had failed to find physician immunity in certain situations).
¶ 21. Well in advance of the date that she filed for leave to amend, Wilner was aware of the new possible defendants who are the subject of this proposed amendment. Under Womble, there was not reasonable diligence. Further, at the hearing on the amendment, the court asked if the motion was based on Rule 9(h). Wilner's counsel responded, "It is not based upon that." So the argument has not even been made that Rule 9(h) is a vehicle to use here.
¶ 22. The other means to satisfy the second requirement of Rule 15(c) for relation back is that the defendant whose joinder is sought "knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party." M.R.C.P. 15(c)(2) (emphasis added). Applying that concept to our facts, White and Gulf Coast OB/GYN must have known that absent some mistake by the plaintiff as to who the responsible doctor and clinic were, Wilner would have named them as defendants. We agree with Wilner that by the date of White's deposition five months before the expiration of the statute of limitations period, White knew well the potential of being sued. However, that deposition also provides the date that Wilner positively knew White and Gulf Coast OB/GYN were proper parties under her allegations. There has never been any suggestion that the plaintiff, especially after the deposition, misidentified or otherwise was mistaken about the identity of the responsible doctors. There was rather a conscious, knowing decision not to file suit against White and Gulf Coast OB/GYN.
¶ 23. We summarize our analysis. As a result of the first appeal, Wilner was allowed by this Court to amend her complaint after the statute of limitations expired. The motion for leave to amend had been filed prior to the end of the limitations and service of process period. The motion, though, had not then brought on for hearing until after the limitations and the process service window closed. An amendment to add a party at so late a date will relate back only if notice as we have described it has been timely received, and "a mistake concerning the identity of the proper party" had existed or substitution of a newly identified party for a fictitious one is being made.
¶ 24. Under Curry, even had Wilner's complaint been amended immediately after the hearing on the motion to amend, it would not have related back. We affirm summary judgment.
¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY GRANTING SUMMARY JUDGMENT IS AFFIRMED. ALL COSTS ARE ASSESSED TO THE APPELLANT. KING, C.J., BRIDGES, P.J., LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.