      IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                      NO. 2015-CA-01380-COA

JIMI MOSELY, INDIVIDUALLY AND AS A                   APPELLANT
PERSONAL REPRESENTATIVE OF THE
ESTATE AND HEIRS-AT-LAW AND/OR
WRONGFUL DEATH BENEFICIARIES OF
GERBORIA MAYFIELD, DECEASED

v.

BAPTIST MEMORIAL HOSPITAL-GOLDEN                     APPELLEES
TRIANGLE, INC., BRANDY ADAMS-HALL, R.N.
AND JENNIFER GILLIAM, R.N.

DATE OF JUDGMENT:             08/13/2015
TRIAL JUDGE:                  HON. LEE J. HOWARD
COURT FROM WHICH APPEALED:    LOWNDES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:      CARLOS EUGENE MOORE
                              TANGALA LANIECE HOLLIS
                              TAMEIKA LADANYA BENNETT
                              DARRYL ANTHONY WILSON
ATTORNEYS FOR APPELLEES:      DAVID W. UPCHURCH
                              JOHN MARK MCINTOSH
                              J. GORDON FLOWERS
                              SCOTT FULLER SINGLEY
                              LAUREN OAKS LAWHORN
NATURE OF THE CASE:           CIVIL - MEDICAL MALPRACTICE
TRIAL COURT DISPOSITION:      GRANTED APPELLEES’ MOTION TO
                              DISMISS OR, IN THE ALTERNATIVE, FOR
                              SUMMARY JUDGMENT
DISPOSITION:                  AFFIRMED - 04/25/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

                      CONSOLIDATED WITH

                      NO. 2015-CA-01517-COA
JIMI MOSELY, INDIVIDUALLY AND AS                                           APPELLANT
PROPOSED GUARDIAN OF THE ESTATE OF
GERBORIA MAYFIELD, AND ON BEHALF OF
THE HEIRS AND WRONGFUL DEATH
BENEFICIARIES OF GERBORIA MONIQUE
MAYFIELD, DECEASED

v.

GREGORY W. CHILDREY, M.D.                                                   APPELLEE

DATE OF JUDGMENT:                           09/08/2015
TRIAL JUDGE:                                LEE J. HOWARD
COURT FROM WHICH APPEALED:                  LOWNDES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                    CARLOS EUGENE MOORE
                                            TAMEIKA LADANYA BENNETT
                                            TANGALA LANIECE HOLLIS
                                            DARRYL ANTHONY WILSON
ATTORNEYS FOR APPELLEE:                     DAVID W. UPCHURCH
                                            JOHN MARK MCINTOSH
NATURE OF THE CASE:                         CIVIL - MEDICAL MALPRACTICE
TRIAL COURT DISPOSITION:                    DENIED APPELLANT’S PRETRIAL
                                            MOTION TO AMEND COMPLAINT
DISPOSITION:                                AFFIRMED - 04/25/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., ISHEE AND GREENLEE, JJ.

       GREENLEE, J., FOR THE COURT:

¶1.    Gerboria Mayfield died at Baptist Memorial Hospital-Golden Triangle (BMH-GT)

following complications from a cesarian section. Jimi Mosely, as representative of

Mayfield’s estate, brought a wrongful-death action based on the tort of medical negligence

against Mayfield’s doctor, Gregory Childrey,1 and against BMH-GT (Mosely I). BMH-GT

was dismissed without prejudice from the action pretrial due to Mosely’s inadequate pleading

       1
           Dr. Childrey was not directly employed by the hospital.

                                              2
as to causation. Mosely’s subsequent motion to amend the complaint to join BMH-GT back

as a defendant was denied as untimely.2 Mosely then filed a second action (Mosely II)

naming BMH-GT and two nurses, Brady Adams-Hall and Jennifer Gilliam, as defendants.

The court denied Mosely’s motions to consolidate Mosely I and Mosely II and granted BMH-

GT’s and Gilliam and Adams-Hall’s respective “Motion to Dismiss, or, in the Alternative,

for Summary Judgment” in Mosely II on the ground that Mosely II was barred by the two-

year statute of limitations. From Mosely I, Mosely appeals the pretrial denial of the motion

to amend the complaint to join BMH-GT back into the action. From Mosely II, Mosely

appeals the dismissal of the case with prejudice. We consolidated the two cases for appellate

review. Finding no error in either case, we affirm.

                         FACTS AND PROCEEDINGS BELOW

¶2.    On August 23, 2011, Mayfield died at BMH-GT from a perforated gastric ulcer

several days after delivering twins via cesarian section. On October 22, 2013, her estate

representative filed suit against both her treating physician and BMH-GT following

compliance with the notice requirements of Mississippi Code Annotated section 15-1-36(15)

(Rev. 2012). Presuit notice was given on August 21, 2013, one day prior to the expiration of

the two-year statute of limitations.3 The suit against BMH-GT was based on the theory of

respondeat superior. No individual employees were named in the complaint or served with



       2
           Mosely’s interlocutory appeal challenging the denial of the motion to amend was
denied.
       3
        This operated to extend the statute of limitations by sixty days as to the defendants
given notice.

                                             3
presuit notice.4

¶3.    On November 26, 2013, BMH-GT moved to be dismissed from the action due to the

complaint’s failure to allege proximate causation as to BMH-GT. Following a hearing held

in January 2014, this motion was granted on March 27, 2014. On May 6, 2014, the parties

entered into an agreed scheduling order setting the deadline for joinder of parties and

amendments to the pleadings for June 1, 2014, with a trial date of November 17, 2014. A

final judgment dismissing BMH-GT without prejudice was entered on May 12, 2014. On

September 3, 2014, Mosely moved to amend her complaint to add BMH-GT back in as a

defendant. The court denied the motion, stating in its order that the motion “should be denied

because of the delay in seeking the relief at this time, which would cause undue burden and

expense for the defendant.”5

¶4.    On November 4, 2014, Mosely filed a new, separate complaint naming as defendants

BMH-GT and two individual nurses involved in Mayfield’s care, Gilliam and Adams-Hall.

Mosely then filed a series of motions to consolidate Mosely I and Mosely II. Mosely did not

provide presuit notice to BMH-GT or to Gilliam and Adams-Hall prior to filing Mosely II.

The motions to consolidate were denied. The defendants respectively moved to be dismissed

from Mosely II. At the hearing on the motions to dismiss, Mosely conceded that the second


       4
        The plaintiff originally proceeded under the erroneous assumption that Dr. Childrey
was an employee of BMH-GT.
       5
         This motion to amend was renewed almost a year later following the continuance
of trial due to Mosely’s failure to secure the attendance of her expert in time for the
originally scheduled November 2014 trial. The motion was again denied as untimely. The
trial was held in August 2015, and the jury entered a verdict in favor of Dr. Childrey. The
jury verdict in favor of Dr. Childrey was not appealed.

                                              4
action should be dismissed under Arceo v. Tolliver, 949 So. 2d 691, 697-98 (¶16) (Miss.

2006), due to lack of presuit notice, but argued that the dismissal should be without

prejudice. Mosely then verbally renewed the motion to amend Mosely I.

¶5.    Noting that the only issue for it to decide was whether the dismissal should be with

or without prejudice, the trial court dismissed Adams-Hall and Gilliam from Mosely II with

prejudice due to the expiration of the statute of limitations. By a separate order, the trial court

also dismissed BMH-GT from Mosely II with prejudice on the ground that expiration of the

statute of limitations as to the employees extended to the employer where the sole complaint

against the employer was on the basis of respondeat superior.

¶6.    Mosely appeals the denial of the motion to amend the complaint in Mosely I, the

denial of the various motions to consolidate, and the dismissal of Mosely II with prejudice.

                                         DISCUSSION

       I.      The trial court did not err in denying Mosely’s motion to amend
               the complaint.

¶7.    A trial court’s grant or denial of a motion to amend the complaint is reviewed for

abuse of discretion, and motions to amend should be denied where there has been undue

delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure

deficiencies by amendments previously allowed, or where the amendment would cause undue

prejudice to the opposing party or be futile. Webb v. Braswell, 930 So. 2d 387, 393 (¶9)

(Miss. 2006); Moeller v. Am. Guar. and Liab. Ins., 812 So. 2d 953, 962 (¶28) (Miss. 2002).

¶8.    Trial courts are required by Mississippi Rule of Civil Procedure 15(a) to provide

plaintiffs an opportunity to amend complaints that have been dismissed pursuant to


                                                5
Mississippi Rule of Civil Procedure 12(b)(6) “when justice so requires” and “upon conditions

and within time as determined by the court.”6 M.R.C.P. 15(a). We find that the trial court

satisfied the mandate of Rule 15(a) by approving a scheduling order that gave Mosely time

to amend her complaint following BMH-GT’s motion to dismiss under Rule 12(b)(6) for

failure to state a claim, and that the trial court did not subsequently abuse its discretion in

denying the motion to amend when the motion was filed three months after the scheduling

deadline. See Hartford Cas. Ins. v. Halliburton Co., 826 So. 2d 1206, 1219 (¶47) (Miss.

2001) (motion to amend properly denied as untimely when made after scheduling deadline).

¶9.    Mosely was put on notice of the complaint’s failure to plead proximate causation as

to BMH-GT when BMH-GT moved to dismiss in November 2013. Yet Mosely delayed until

September 2014 before filing a motion to amend the complaint, by which time a hearing on

the motion to dismiss had been held, the motion had been granted, and a new scheduling

deadline granting Mosely time to cure the pleading defect had expired by a significant

amount of time. The trial court therefore did not err in denying the motion to amend on the

ground of undue delay.

       II.    The trial court did not err in granting the defendants’ “Motion to
              Dismiss, or, in the Alternative, for Summary Judgment” with
              prejudice in Mosely II.

       6
         A previous version of Rule 15(a) provided that leave to amend following a 12(b)(6)
dismissal was mandatory with a deadline of thirty days. Interpreting that earlier version of
the rule, the Mississippi Supreme Court noted in Poindexter v. S. United Fire Ins. Co., 838
So. 2d 964, 970 (¶29) (Miss. 2003), the absence of discretionary language such as “when
justice so requires.” While the new version of the rule maintains the mandatory “shall,” it
is clearly designed to give greater discretion to the trial court by replacing the thirty-day
deadline with “within time as determined by the court” and adding “when justice so
requires.”

                                              6
¶10.   Statute-of-limitations issues are questions of law reviewed de novo. Fletcher v. Lyles,

999 So. 2d 1271, 1276 (¶20) (Miss. 2009).

¶11.   The trial court correctly determined that Gilliam and Adams-Hall should be dismissed

with prejudice from Mosely II due to the expiration of the two-year statute of limitations

applying to torts sounding in medical negligence. Nurses Gilliam and Adams-Hall were not

named as defendants in Mosely I and were not given presuit notice in either Mosely I or II.

Therefore, the statute of limitations as to them expired on August 22, 2013, two years after

Mayfield’s death and months prior to the filing of Mosely II.

¶12.   We also find that the trial court appropriately dismissed BMH-GT with prejudice

when Mosely renamed BMH-GT as a defendant in Mosely II. As Mosely concedes, section

15-1-36(15) requires notice to be given prior to filing suit even if that defendant was properly

served presuit notice in a previous action. Arceo v. Tolliver, 19 So. 3d 67, 71 (¶¶12-13)

(Miss. 2009). But while, “[o]rdinarily, dismissal without prejudice is appropriate where . .

. dismissal of a suit was based upon a plaintiff’s failure to comply with statutory presuit

notice provisions[,] . . . where a suit is dismissed for any reason and the statute of limitations

has expired, dismissal with prejudice is warranted.” Id. at 75 (¶42).

¶13.   Specifically addressing the employee-employer relationship between a nurse and her

employer in a wrongful-death action, the Mississippi Supreme Court held in Lowery v.

Statewide Healthcare Serv., Inc., 585 So. 2d 778, 780 (Miss. 1991), that “a suit barred by a

statute of limitation against an agent will likewise bar the same claim against the principal

whose liability is based solely upon the principal and agency relationship, and not some act



                                                7
or conduct of the principal separate and apart from the act or conduct of the agent.” The

statute of limitations had expired as to Gilliam and Adams-Hall at the time Mosely II was

filed. Because the claim against BMH-GT was based solely on the theory of respondeat

superior, the statute had also expired as to BMH-GT.7 Therefore, even if Mosely had served

BMH-GT presuit notice prior to filing Mosely II, the action would still have been barred.

¶14.   Mosely asserts that “the savings statute”—Miss. Code Ann. § 15-1-69 (Rev.

2012)—operates to make Mosely II timely filed. The statute does apply in medical-

malpractice suits where a complaint was filed within the statute of limitations but the plaintiff

failed to provide presuit notice. Arceo, 19 So. 3d 67. On the facts of this case, the savings

statute would not apply to defendants Adams-Hall and Gilliam because they were not sued

within the statute of limitations.

¶15.   As to BMH-GT—who in Mosely I was timely given presuit notice and timely

sued—Mosely is unable to point to any authority that indicates that the savings statute would

apply to a situation in which a motion to amend was denied due to undue delay. Rule 15(a)

operated to grant Mosely additional time to cure the defect in her pleading as to causation,

and she did not take advantage of that opportunity.

¶16.   Mosely also argues that she should be able to join Gilliam and Adams-Hall to Mosely

I via Mississippi Rule of Civil Procedure 9(h). This argument is without merit. Rule 9(h)



       7
         We note that Mosely II is also likely barred under the doctrine prohibiting claim-
splitting, but do not find it necessary to arrive at that issue. See Carpenter v. Kenneth
Thompson Builder Inc., 186 So. 3d 820, 824 (¶11) (Miss. 2014) (filing a second action and
moving to consolidate for the purpose of avoiding a procedural bar in the original action is
prohibited).

                                               8
provides for the substitution of parties via amendment to a complaint that named fictitious

parties. Mosely did not name fictitious defendants in the Mosely I complaint or ever file a

motion to amend Mosely I on Rule 9(h) grounds. She simply named Adams-Hall and Gilliam

as defendants in a new, independent action more than two years after the statute of

limitations had expired.

                                       CONCLUSION

¶17.   In Mosely I, the trial court did not abuse its discretion in denying the motion to amend

as untimely. In Mosely II, the trial court did not err in finding the action barred with prejudice

as to all defendants by the statute of limitations. The denial of the motions to consolidate

were appropriate given the statute-of-limitations bar.

¶18. THE JUDGMENTS OF THE LOWNDES COUNTY CIRCUIT COURT ARE
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

    LEE, C.J., GRIFFIS, P.J., ISHEE, CARLTON AND WESTBROOKS, JJ.,
CONCUR. IRVING, P.J., BARNES AND WILSON, JJ., CONCUR IN PART AND IN
THE RESULT WITHOUT SEPARATE WRITTEN OPINION. FAIR, J., NOT
PARTICIPATING.




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