                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2008-IA-01899-SCT

LINDA BREWER

v.

JASON WILTCHER


DATE OF JUDGMENT:                          10/29/2008
TRIAL JUDGE:                               HON. SAMAC S. RICHARDSON
COURT FROM WHICH APPEALED:                 RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   STEPHEN P. KRUGER
                                           JAN F. GADOW
ATTORNEYS FOR APPELLEE:                    DOUG WADE
                                           LOUIS J. GUICHET, III
NATURE OF THE CASE:                        CIVIL - MEDICAL MALPRACTICE
DISPOSITION:                               REVERSED AND RENDERED - 12/03/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       LAMAR, JUSTICE, FOR THE COURT:

¶1.    In this medical-malpractice action, we decide whether the trial court erred in denying

a motion to dismiss under Mississippi Code Section 15-1-36(15). Finding error, we reverse

and render the appropriate judgment, dismissal without prejudice.

                                          FACTS

¶2.    Jason Wiltcher filed a medical-malpractice action against Linda Brewer, Pelahatchie

Medical Clinic (“the Clinic”), and John Does 1, 2, and 3. Prior to filing an answer, Brewer

and the Clinic filed a motion to dismiss with prejudice based on Wiltcher’s failure to send
any notice in compliance with Mississippi Code Section 15-1-36(15). See Miss. Code Ann.

§ 15-1-36(15) (Rev. 2003). Wiltcher filed a response to the motion to dismiss, in which he

stated that notice was sent on May 11, 2008, via U.S. mail to Linda Brewer. Wiltcher

attached an unsigned copy of the notice letter to his response to the motion to dismiss.

Thereafter, Brewer and the Clinic filed a reply to Wiltcher’s response to the motion to

dismiss, arguing that Wiltcher had failed to provide the court with any admissible, credible

evidence that a notice letter was sent.

¶3.    The trial court conducted a hearing on the motion to dismiss and heard testimony from

Lynn Douglas Wade, Wiltcher’s attorney. Wade testified as to his usual practice in preparing

letters, which involves his paralegal placing a signed original in the mail. Wade testified that

he had no independent recollection of signing the notice letter and that he personally did not

place it in the mail. Wade also admitted that he had no knowledge that the notice letter was

actually placed in the mail. Further, Wade stated that he does not maintain copies of all

signed letters.

¶4.    After hearing counsel’s arguments and Wade’s testimony, the trial court found that

Wiltcher had failed to send any notice to the Clinic, as the notice letter was addressed only

to Brewer. The court further ruled as to Brewer that it was “going to give the benefit of the

doubt to the plaintiff and the United States mail.” In its final judgment, the trial court stated

that it treated the motion as one for summary judgment, since matters outside the pleadings

were considered. The court granted summary judgment to the Clinic but denied Brewer’s




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motion for the same relief.        This Court granted Brewer’s permission to bring this

interlocutory appeal. See Miss. R. App. P. 5.

                                        DISCUSSION

¶5.    This Court reviews the application of a question of law under the de novo standard

of review. Jackson Med. Clinic for Women, P.A. v. Moore, 836 So. 2d 767, 770 (Miss.

2003). “When a trial judge sits without a jury, this Court will not disturb his factual

determinations where there is substantial evidence in the record to support those findings.”

Yarbrough v. Camphor, 645 So. 2d 867, 869 (Miss. 1994).

¶6.    At the outset, we note that the trial court erred in converting the motion to dismiss to

a motion for summary judgment. A motion to dismiss for failure to comply with Section 15-

1-36(15)1 does not reach the merits of a cause of action; therefore, the trial court should not



       1
           Section 15-1-36(15) provides that:

       No action based upon the health care provider’s professional negligence may
       be begun unless the defendant has been given at least sixty (60) days’ prior
       written notice of the intention to begin the action. No particular form of notice
       is required, but it shall notify the defendant of the legal basis of the claim and
       the type of loss sustained, including with specificity the nature of the injuries
       suffered. If the notice is served within sixty (60) days prior to the expiration
       of the applicable statute of limitations, the time for commencement of the
       action shall be extended for sixty (60) days from the service of the notice for
       said health care providers and others. This subsection shall not be applicable
       with respect to any defendant whose name is unknown to the plaintiff at the
       time of filing the complaint and who is identified therein by a fictitious name.

Miss. Code Ann. § 15-1-36(15) (Rev. 2003) (emphasis added).



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have treated the motion as one for summary judgment. Thomas v. Warden, 999 So. 2d 842,

847 (Miss. 2008); cf. Williams v. Skelton, 6 So. 3d 428, 431 (Miss. 2009) (holding that

“dismissal for failure to comply with the pre-suit requirements of Mississippi Code Section

15-1-36 should be without prejudice.”). Therefore, this Court reviews the trial court’s

judgment as one denying a motion to dismiss filed pursuant to Mississippi Code Section 15-

1-36(15).

¶7.    Brewer argues that Wiltcher failed to present any evidence to establish that pre-suit

notice was mailed, delivered, or received. Brewer points to Wade’s testimony, in which he

admitted that he did not have actual knowledge of the notice being mailed or received.

Conversely, Wiltcher argues that Wade’s testimony regarding his habit and routine practice

evidenced that the notice was mailed to Brewer.

¶8.    This Court has held that the “mechanics” of Rule 5 of the Mississippi Rules of Civil

Procedure apply when notice is mandated as a preliminary step to filing a lawsuit, such as

the notice required under Section 15-1-36. Proli v. Hathorn, 928 So. 2d 169, 173, 175

(Miss. 2006). The Court in Proli relied upon its holding in Brocato v. Mississippi Publishers

Corp., 503 So. 2d 241 (Miss. 1987), in determining that Rule 5 governed service of pre-suit

notice under Section 15-1-36. Proli, 928 So. 2d at 172-73. In Brocato, this Court held:

               Because of the peculiar factual situation involved in this case, it is
       essential for the Court to determine what action constitutes the serving of
       notice under § 95-1-5, which is silent regarding how notice is to be served.
               Rule 5 of the Mississippi Rules of Civil Procedure is generally utilized
       after suit has been filed. The official comments to Rule 5 state in part, “This
       rule presupposes that the court has already gained jurisdiction over the
       parties.” However, this Court finds the mechanics of Rule 5 may also be used

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       in a situation such as the one at bar in which notice is required as a preliminary
       step to filing a lawsuit. Therefore, this Court holds that the notice
       requirements of § 95-1-5 should follow the Rule 5 out-lines [sic].

Brocato, 503 So. 2d at 243.

¶9.    Rule 5 provides in relevant part that “every written notice” shall be served by “mailing

it to [an attorney or party] at his last known address” and that “[s]ervice by mail is complete

upon mailing.” Miss. R. Civ. P. 5(a)-(b)(1) (emphasis added). Rule 5 further provides that

“[p]roof of service of any paper shall be upon certificate of the person executing the same.”

Miss. R. Civ. P. 5(d).

¶10.   The outcome of this case depends upon whether the notice letter was properly served

via mail upon Brewer. This Court has held that “[t]here is a presumption that mail deposited,

postage prepaid and properly addressed is timely delivered to the person addressed.”

Thames v. Smith Ins. Agency, Inc., 710 So. 2d 1213, 1216 (Miss. 1998) (emphasis added).

In order for the presumption to arise, the proponent must present sufficient evidence that the

letter was stamped and mailed. New York Life Ins. Co. v. Quinn, 171 Miss. 396, 157 So.

902, 903-04 (1934) (finding no presumption raised since plaintiff gave letters to postman for

the postman to stamp and place in the mail). “Once the presumption is established, the

burden shifts to the party denying receipt to present evidence to rebut the presumption.” Holt

v. Mississippi Employment Sec. Comm’n, 724 So. 2d 466, 470 (Miss. Ct. App. 1998).

¶11.   Wiltcher failed to present any witness to attest that the notice letter was actually

stamped and placed in the mail. Wiltcher’s testimony regarding his usual practice and

procedure is insufficient to establish that notice was served in compliance with Section 15-1-

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36(15) and Rule 5. Further, the unsigned letter attached to Wiltcher’s response lacked a

certificate of service, which would provide some “[p]roof of service.” Miss. R. Civ. P. 5(d).

¶12.   We find that Wiltcher failed to show that the notice letter was actually mailed, which

is required under Rule 5 to complete service.        Miss. R. Civ. P. 5(b)(1). Further, no

presumption arose that the letter was received by Brewer because Wiltcher failed to show

that the notice letter was deposited in the mail. See Thames, 710 So. 2d at 1216. Because

Wiltcher failed to present sufficient evidence that he complied with Section 15-1-36(15) by

serving Brewer with a copy of the notice letter via mail, we find that the trial court erred in

giving “the benefit of the doubt to the plaintiff and the United States mail.”

                                      CONCLUSION

¶13. For the reasons stated, the order denying Brewer’s motion to dismiss is reversed, and

judgment is rendered in favor of Brewer, dismissing Wiltcher’s complaint without prejudice.

¶14.   REVERSED AND RENDERED.

    WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, KITCHENS,
CHANDLER AND PIERCE, JJ., CONCUR. GRAVES, P.J., DISSENTS WITHOUT
SEPARATE WRITTEN OPINION.




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