              IN THE SUPREME COURT OF MISSISSIPPI

                      NO. 2006-CA-00875-SCT

DOUGLAS LONG, RICHARD LONG, EARL LONG, AND
THE HEIRS AT LAW OF EDWARD LONG, WHO ARE
JOYCE LONG, INDIVIDUALLY, CRYSTAL LONG, A
MINOR, EDWARD LONG, JR., A MINOR, AND
CHRISTOPHER LONG, A MINOR, WHO ARE ALL
REPRESENTED BY THEIR MOTHER AND NATURAL
GUARDIAN, JOYCE LONG; THE HEIRS AT LAW OF
DAVID LONG, WHO ARE JOHN COLBY LONG, A
MINOR, REPRESENTED BY HIS MOTHER AND
NATURAL GUARDIAN, TERI LONG SCARBOROUGH,
AND COREY LONG

v.

MEMORIAL HOSPITAL AT GULFPORT AND
THOMAS VAUGHAN, M.D.


DATE OF JUDGMENT:             04/28/2006
TRIAL JUDGE:                  HON. JERRY O. TERRY, SR.
COURT FROM WHICH APPEALED:    HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS:      WILLIAM B. WEATHERLY
ATTORNEYS FOR APPELLEES:      PATRICIA K. SIMPSON
                              GAYE NELL CURRIE
                              LYNDA C. CARTER
                              NICOLE C. HUFFMAN
NATURE OF THE CASE:           CIVIL - WRONGFUL DEATH
DISPOSITION:                  AFFIRMED IN PART; REVERSED AND
                              REMANDED IN PART - 10/11/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




     BEFORE WALLER, P.J., EASLEY AND CARLSON, JJ.

     WALLER, PRESIDING JUSTICE, FOR THE COURT:
¶1.    Lori McKinney filed a medical malpractice lawsuit against Memorial Hospital at

Gulfport on behalf of herself and all the wrongful death beneficiaries of Huey P. Long in the

First Judicial District of the Circuit Court of Harrison County, Mississippi, on October 17,

2002. She caused no summons to issue from the circuit court in relation to this filing. See

Miss. R. Civ. P. 4(a). The next day, Douglas Long, Edward P. Long and Richard Long,

without knowledge of the McKinney suit, filed a malpractice lawsuit based on the same event

in the same court. They caused no summons to issue from the court at that time. This

complaint was amended shortly thereafter to add Earl Long as a plaintiff. Again, no

summons issued from the circuit court. Upon discovering the McKinney lawsuit, the Longs

moved the circuit court to consolidate the actions.      Initially, the circuit court denied

consolidation and dismissed the Long action. Upon reconsideration, the court reversed its

decision, granting consolidation and allowing the Longs to participate in the McKinney suit.

The circuit court, again on reconsideration, ultimately denied the motion to consolidate and

dismissed the Long complaint.

¶2.    The interlocutory appeal from this judgment took the form of Long v. McKinney, 897

So. 2d 160 (Miss. 2004). This Court held that subsequent filings in wrongful death actions

shall be dismissed, effectively affirming the circuit court’s denial of consolidation and

dismissal of the Long lawsuit. The opinion reversed the portions of the circuit court’s order

allowing McKinney and her counsel sole control of the proceedings on behalf of the

plaintiffs and prohibiting participation by counsel for the Longs. Id. at 173-74, 178. The




                                             2
mandate of this opinion from this court issued April 14, 2005, directing the matter be

remanded to the circuit court for further proceedings.

¶3.    On June 3, 2005, a summons for Memorial Hospital issued from the circuit court and

was served three days later on Memorial Hospital’s registered agent for process. The Longs

then filed an Amended Complaint on July 26, substituting Thomas Vaughan, M.D., for a

John Doe defendant.1 Summons for Vaughan issued the same day. Memorial Hospital filed

a motion to dismiss on August 4, and its Answer on August 8, 2005. On November 23, the

circuit court granted the Longs an extension of time to serve process on Vaughan. Service

was accomplished on Vaughan on January 5, 2006. The circuit court granted Memorial

Hospital’s motion to dismiss, without prejudice, on January 9. Vaughan filed a motion to

dismiss on February 7, along with his Answer. The court denied reconsideration of its order

dismissing Memorial Hospital, and granted Vaughan’s motion to dismiss, with prejudice.

It is from these orders that the Longs now appeal.2


       1
        The Estate of Huey P. Long is not listed as a plaintiff in the amended complaint. See
Long, 897 So. 2d at 175. Lori McKinney is listed as a plaintiff in the style of this complaint
but identified as a defendant within.
       2
        The absence of Lori McKinney from the style of this appeal bears mention.
McKinney’s counsel withdrew shortly after remand, and she appears to be acting pro se.
Although her name appears as a plaintiff in the style of the original and amended complaints,
she is described within the amended complaint as a defendant. The amended complaint was
filed by counsel for the Longs after her own counsel withdrew.
        McKinney’s status as a party to this appeal is not clear from the record. She identifies
herself as a wrongful death beneficiary of Huey Long, yet counsel specifically excluded her
name from the notice of appeal from these dismissals. The named plaintiff and counsel of
record are directed to act on behalf of all interested parties as fiduciary. See Long, 897 So.
2d at 169.

                                               3
                                            FACTS

¶4.    The pertinent facts are uncontested. Huey P. Long died on October 8, 2002. Lori

McKinney filed this medical malpractice action against Memorial Hospital at Gulfport on

October 17, 2002. On September 19, 2003, this Court entered an order granting interlocutory

appeal, stating the statute of limitations would be tolled during the pendency of the appeal

and imposing a stay on the proceedings. This matter was remanded on April 15, 2005. No

summons issued for Memorial Hospital until June 3, 2005. Process was served on Memorial

Hospital three days later. The plaintiffs then filed an Amended Complaint naming Thomas

Vaughan, M.D., as a defendant. Summons for Vaughan issued July 26, 2005, and was served

on January 5, 2006. The trial court granted Memorial Hospital’s motion to dismiss for the

plaintiffs’ failure to serve process upon it within 120 days of filing the lawsuit. The court

later granted Vaughan’s motion to dismiss.

                                STANDARD OF REVIEW

¶5.    This Court leaves to the discretion of the trial court the finding of fact on the existence

of good cause or excusable neglect for delay in serving process under Rule 4(h). Where such

discretion is abused or is not supported by substantial evidence, this court will reverse.

However, where the trial court’s judgment involves the interpretation of legal principles, this

court will conduct a de novo, or plenary, review of its interpretation, and reverse where it

finds the trial court in error. Bennett v. McCaffrey, 937 So. 2d 11, 14 (Miss. 2006). See also

Montgomery v. Smithkline Beecham, 910 So. 2d 541, 544-45 (Miss. 2005); Holmes v.

Coast Transit Auth., 815 So. 2d 1183, 1185 (Miss. 2002).

                                               4
                                       DISCUSSION

¶6.    The circuit court’s judgment dismissing Memorial Hospital without prejudice relied

upon the facts that (1) neither McKinney nor the Longs caused a summons to issue from the

circuit court or process to be served upon Memorial Hospital until almost three years after

the filing of the original complaint, (2) no extension of time was requested or granted, and

(3) there was no evidence Memorial Hospital attempted to evade service of process. The

circuit court’s order dismissing Vaughan found the statute of limitations barred the claims

against him. We find the circuit court’s judgment dismissing Memorial Hospital is supported

by substantial evidence and it is, therefore, affirmed. For the reasons discussed below, we

reverse the summary judgment granted in favor of Vaughan and remand this matter for

further proceedings.

       I.     WHETHER THE CIRCUIT COURT ERRED IN
              DISMISSING THE CLAIMS AGAINST MEMORIAL
              HOSPITAL AT GULFPORT.

¶7.    The Longs argue the circuit court erred in granting Memorial Hospital’s motion to

dismiss because (1) it applied a strict rule that the complete failure to attempt service before

the expiration of 120 days warranted dismissal, (2) the circuit court’s orders forming the

basis of the first appeal prohibited the Longs from having the McKinney complaint properly

and timely served until after this Court’s April 14, 2005, mandate on the first appeal, and (3)

the circuit court’s order dismissed the entire action, not simply the claims against Memorial

Hospital. Memorial Hospital and Vaughan respond that the circuit court correctly applied

Rule 4(h) to dismiss Memorial Hospital because good cause cannot be shown where no

                                               5
summons issued and no attempt to serve process occurred before June 6, 2005. They further

contest the Longs’s arguments that the court’s rulings prohibited the Longs from serving

process and the circuit court erred in dismissing the entire matter. Finally, Memorial

Hospital argues that the circuit court did not have subject matter jurisdiction over it due to

the fact that McKinney failed to comply with the Mississippi Tort Claims Act before filing

the lawsuit against it, and all claims against it are now barred by the one-year statute of

limitations found in the Tort Claims Act.

¶8.    At the outset, it must be observed that the Longs failed to name Memorial Hospital

as a defendant to their own lawsuit. In fact, only fictitious parties were named as defendants.

The Longs are now attempting to obtain relief by arguing that the McKinney complaint,

which named Memorial Hospital as a defendant, should not have been dismissed for failure

to serve process.

¶9.    Rule 4(h) of the Mississippi Rules of Civil Procedure requires a summons and a copy

of the complaint to be served upon a defendant “within 120 days after the filing of the

complaint.” If this is not done, the party responsible for service must show “good cause why

such service was not made within that period,” otherwise “the action shall be dismissed as

to that defendant without prejudice.” Miss. R. Civ. P. 4(h). In applying this rule within its

order dismissing Memorial Hospital, the circuit court concluded, “As a matter of law, a

plaintiff can never demonstrate good cause and diligence where no attempt to serve process

was made.” In reaching this conclusion, the court quoted and paraphrased Montgomery v.

Smithkline Beecham Corp.: “‘Good cause’ can never be demonstrated where the plaintiff

                                              6
has not been diligent in attempting to serve process.” Montgomery, 910 So. 2d 541, 545

(Miss. 2005) (citing Bang v. Pittman, 749 So. 2d 47, 52 (Miss. 1999)).

¶10.   The Longs argue that Mississippi case law allows good cause to be shown in absence

of any attempt to serve process, contrary to the absolute rule stated by the trial court, and that

good cause existed due to the previous orders of the circuit court granting dismissal of their

suit. This Court in Powe v. Byrd examined a situation where a plaintiff made little, if any,

effort to serve process on a defendant within the time allowed by Rule 4. Powe, 892 So. 2d

223 (Miss. 2004). There, a plaintiff filed a medical malpractice action one week before the

two-year anniversary of the death of the injured party. The process server was not instructed

by plaintiff’s counsel to attempt to serve process on the defendant until the final day for

service under Rule 4. Service was not accomplished until after the time for service expired.

Id. at 225. When the trial court dismissed the original action without prejudice, the plaintiff

filed a second complaint. The trial court ruled the action stated by the second complaint to

be time-barred and dismissed it with prejudice. Id. This Court considered the plaintiff’s

claims that she waited for an expert’s opinion as to the merits of her action before attempting

service. It affirmed the circuit court’s judgment, stating “We find that waiting until the last

day to serve process on a defendant does not constitute good cause. Powe knew that it was

of the utmost importance to have the process served on or before that day and did not

accomplish same.” Id. at 227.

¶11.   Other, similar cases include Bacou-Dalloz Safety, Inc. v. Hall, 938 So. 2d 820 (Miss.

2006) (this Court considered and found good cause lacking in plaintiff’s two attempts at

                                                7
service: the first attempt at service of original complaint was made by certified mail upon

out-of-state corporation at the wrong address and attempted only once within 120-day period;

the second attempt at service occurred long after 120-day period expired); Triple “C”

Transport, Inc. v. Smith, 870 So. 2d 1195 (Miss. 2004) (this Court affirmed dismissal where

the plaintiff’s complete failure to attempt service on a defendant due to an identification

problem with a co-defendant did not amount to good cause or excusable neglect); and

Holmes v. Coast Transit Authority, 815 So. 2d 1183 (Miss. 2002) (this Court considered

whether ongoing settlement negotiations constituted good cause for failure to serve, and ruled

in favor of dismissal where plaintiff’s first attempt at service was improper and no further

attempts to serve within 120 days followed).

¶12.   We agree with the Longs that there is no concrete rule in Mississippi law that good

cause automatically will be found lacking when a plaintiff completely fails to cause a

summons to issue for a defendant or does not attempt at all to serve a defendant within 120

days of the filing of her lawsuit. This Court’s precedent indicates the reasons offered to

demonstrate diligence in light of the failure to serve will be, and should be, reviewed even

where the plaintiff’s attempts at service are negligible or nonexistent. Even the cases offered

by Memorial Hospital and Vaughan for the rule that such a review is unnecessary

demonstrate this Court will at least examine the reasons offered before finding them

insufficient.

¶13.   The circuit court’s order approximates, but ultimately misstates, the rule in

Montgomery and Bang. In Montgomery, this Court stated and applied the rule that it will

                                               8
consider the plaintiff’s diligence and, finding it lacking, will never find good cause.

Montgomery, 910 So. 2d at 545, 547-48. In Bang, this Court applied the same procedure

to the same result. Bang, 749 So. 2d at 51-52. In both cases, summons issued before the

expiration of time to serve, so these cases only suggest the resolution of the issue. On the

other hand, in this case, the circuit court simply asked whether the plaintiff attempted service

of process and, finding no evidence of an attempt, found no good cause existed. The court’s

order granting dismissal does not reflect due consideration of the reasons offered by the

Longs for their failure. Rather, it appears as if the trial court’s analysis simply relied upon

its incorrect paraphrase of the rule from Montgomery. Since we agree that the Longs’s

reasons for their failure to serve process must be examined, they are examined below.

Good cause analysis

¶14.   The Longs offer this matter’s winding procedural history and the restrictions to their

participation to show good cause why service of process was not completed on Memorial

Hospital until almost three years after Huey Long’s death. The transcript of the hearing

demonstrates the Longs offered to the circuit court many of the same reasons for failing to

serve Memorial Hospital as they now offer on appeal. A review of that history, coupled with

a discussion of the law, follows.

¶15.   Lori McKinney filed her lawsuit against Memorial Hospital on October 17, 2002. She

gave notice of claim to Memorial Hospital the same day she filed her lawsuit, contrary to




                                               9
Mississippi law.3 Miss. Code Ann. § 11-46-11(1) (Rev. 2002); Univ. Med. Center v.

Easterling, 928 So. 2d 815 (Miss. 2006) (requiring a plaintiff to wait the required number

of days before filing tort claims suit; if suit is filed too early, this Court requires dismissal);

Wright v. Quesnel, 876 So. 2d 362 (Miss. 2004). But see City of Pascagoula v. Tomlinson,

741 So. 2d 224 (Miss. 1999) (suit filed two weeks after notice of claim was not dismissed;

prior interpretations of Tort Claims Act found appropriate remedy to early filing of lawsuit

was request for stay by defendant, not dismissal). Mississippi law now requires strict

compliance with the ninety-day notice requirement in the Mississippi Tort Claims Act. Miss.

Code Ann. § 11-46-11(1); Easterling, 928 So. 2d at 819. Even if we were to apply the rule

from Tomlinson to the facts before us, McKinney still failed to timely serve Memorial

Hospital, and this failure is binding on the Longs.

¶16.   Applying the holding of the first appeal of this matter, the Long lawsuit, filed the day

after the McKinney lawsuit, was of no effect at the moment of its filing. Long, 897 So. 2d

174. This matter proceeded under the McKinney complaint with McKinney acting as

fiduciary for the Longs’s claims. McKinney was free to effect service on Memorial Hospital

during the interval between filing her complaint and the interlocutory appeal.                The

Mississippi Tort Claims Act gives a governmental entity defendant ninety days from the

filing of a notice of claim to consider the claim before a lawsuit can be maintained. Miss.



       3
         It is assumed by both parties that Memorial Hospital at Gulfport is a governmental
entity covered by the Mississippi Tort Claims Act, even though there has been no finding
to that effect below.

                                                10
Code Ann. § 11-46-11(1) (Rev. 2002). Assuming, for argument’s sake, the circuit court

entered a stay in the McKinney suit for ninety days after the date Memorial Hospital received

the notice of claim, McKinney had 120 days from January 17, 2003, to effect service upon

Memorial Hospital. Applying this assumption, the period for service of process of the

original complaint on Memorial Hospital ended May 17, 2003. Throughout this time, both

McKinney and the Longs had the benefit of counsel.            No court order encumbered

McKinney’s ability to serve process.

¶17.   Participation by the Longs’s counsel was prohibited by the circuit court’s orders,

except for a period beginning February 6 and ending March 24, 2003. The Longs offer no

reason why McKinney could not have served process on Memorial Hospital between January

and May of 2003, or requested more time for service from the circuit court. We find the

Longs’s arguments concerning their inability to act on the McKinney complaint to be without

merit. They failed to sue Memorial Hospital themselves. Since they chose to seek relief

from dismissal under the McKinney complaint, they have bound themselves to the choices

and inaction of McKinney. As a consequence, they share the same fate with respect to

Memorial Hospital.

¶18.   Another basis for the Longs’s claim that good cause exists to justify the failure to

serve process on Memorial Hospital is the strained relationships between McKinney and her

counsel and the Longs and their own. This court’s holding on interlocutory appeal assumes

McKinney acted as a fiduciary during this time, therefore, strained relationships between co-

plaintiffs and their counsel do not constitute good cause to warrant relief from dismissal.

                                             11
Regardless of whether the co-plaintiffs were on amicable or hostile terms, McKinney, as

fiduciary for all interested parties and as the only party with the standing to use the court’s

powers to prosecute this suit, was responsible for service of process and simply neglected to

complete this task within the time allowed. There is nothing in the record before the Court

to explain this neglect.

¶19.   Finally, although the Longs filed their petition for interlocutory appeal on April 21,

2003, the filing of a petition for interlocutory appeal does not stay the proceedings of the

circuit court unless this court enters an order to that effect. Miss. R. App. P. 5(f). This Court

did not enter such a stay until September 19, 2003, well after the time for service elapsed.

Therefore, there is no evidence in the record to show good cause or excusable neglect why

McKinney failed to serve process on Memorial Hospital between the time she filed her

complaint and when this Court entered the order granting the interlocutory appeal.

McKinney acted as fiduciary for the Longs, so they share the penalty for her failure. The

circuit court’s findings that (1) McKinney did not cause process to issue for Memorial

Hospital, (2) McKinney did not ask for an extension of time to serve Memorial Hospital, and

(3) Memorial Hospital did not attempt to evade process are supported by substantial

evidence. Its judgment finding that good cause did not exist for McKinney’s failure to serve

process is not an abuse of discretion and is affirmed.

¶20.   The Longs raise one final argument concerning the dismissal of Memorial Hospital.

They contend the dismissal of Memorial Hospital did not dismiss the entire action. This

issue does not affect the merits of the dismissal of Memorial Hospital, but it does concern the

                                               12
way the circuit court treated the dismissal of Vaughan. The court’s order of dismissal for

Memorial Hospital states, “the subject complaint is dismissed without prejudice.” (Emphasis

added). Its order dismissing Vaughan found the amended complaint to be a “new cause of

action.”

¶21.   The circuit court’s order dismissing Memorial Hospital did not properly dismiss the

entire action, as two fictitious parties, surgeon John Doe 1 and anesthesiologist John Doe 2,

remained as unidentified defendants. One of the benefits of Rule 9(h) is to allow a plaintiff,

who is aware of his cause of action against a defendant but ignorant of the defendant’s

identity, to name a fictitious party as a defendant in order to use the court’s resources to

discover her true identity. See, e.g., Veal v. J.P. Morgan Trust Co. N.A., 955 So. 2d 843,

845-46 (Miss. 2007); Rawson v. Jones, 816 So. 2d 367, 369 (Miss. 2001). To dismiss the

entire action, when only the identified parties are dismissed and the complaint articulates

claims against fictitious parties whose identity can be discovered, is to deprive a plaintiff of

this benefit. Therefore, the circuit court erred in dismissing the entire action when dismissing

Memorial Hospital.

¶22.   This conclusion does not result in any change in the outcome of the dismissal of

Memorial Hospital. We also note that the authority relied upon by the circuit court to treat

the amended complaint as a new cause of action, King v. American RV Centers, Inc., 862

So. 2d 558 (Miss. Ct. App. 2003), has been criticized and overruled by this court and should

be treated on remand with appropriate circumspection. Wilner v. White, 929 So. 2d 315

(Miss. 2006).

                                              13
¶23.   In summary, the circuit court’s judgment dismissing Memorial Hospital due to

McKinney’s failure to timely serve process is supported by substantial evidence and is

affirmed. The circuit court’s January 9, 2006, order dismissed Memorial Hospital “without

prejudice.” This result was not changed when the circuit court reconsidered dismissal. This

is the result anticipated by Rule 4, therefore, the court’s analysis ends here with respect to

Memorial Hospital.

¶24.   The circuit court dismissed Vaughan after considering his affidavit and those of the

Longs and their counsel. Under the circumstances, the circuit court was presented a question

of Mississippi law when examining a motion for summary judgment. Miss. R. Civ. P. 12(b);

56. We apply a de novo review to questions of law presented on summary judgment. Veal,

955 So. 2d at 845; City of Jackson v. Perry, 764 So. 2d 373, 375 (Miss. 2000).

       II.    WHETHER THE CIRCUIT COURT ERRED IN
              DISMISSING THE CLAIMS AGAINST VAUGHAN.

¶25.   The Longs offered two reasons to the circuit court why they substituted Vaughan as

a defendant almost three years after McKinney filed her original complaint: (1) the language

within and the effect of this Court’s order granting interlocutory appeal and (2) the tolling

provided by Rule 9(h) and the relation back of the amended complaint to the filing of the

original complaint under Rule 15(c). They now present these same arguments as grounds for

finding the circuit court erred in dismissing Vaughan. Vaughan responds by arguing the

amended complaint does not relate back to the filing of the original complaint, and this




                                             14
Court’s orders did not operate to toll the statute of limitations against him, as this Court had

no personal jurisdiction over him when they were entered.

¶26.   The circuit court treated the amended complaint as a new cause of action, having

dismissed the original complaint for lack of service of process on motion by Memorial

Hospital. The court then found the statute of limitations barred the action against Vaughan

because “the statute of limitations on any claim of medical negligence is barred after the

passage of two (2) years from the date of injury.” The circuit court appears to have

addressed the Longs’s arguments concerning the effect of this Court’s order only on

interlocutory appeal. The issue of the effect of the circuit court’s orders and our interlocutory

appeal order is dispositive, therefore, we will examine only this argument. We find the

circuit court’s judgment dismissing Vaughan to be in error, and therefore reverse its

judgment as to Vaughan and remand this matter for further proceedings.

¶27.   A suit to recover for damages caused by medical malpractice must be filed “within

two (2) years from the date the alleged act, omission or neglect shall or with reasonable

diligence might have been first known or discovered, in no event more than seven (7) years

after the alleged act, omission or neglect occurred. . . .” Miss. Code Ann. § 15-1-36 (Rev.

2003). This two-year period begins to run when “the patient can reasonably be held to have

knowledge of the injury itself, the cause of the injury, and the causative relationship between

the injury and the conduct of the medical practitioner.” Powe, 892 So. 2d at 227 (quoting

Smith v. Sanders, 485 So. 2d 1051, 1052 (Miss. 1986)). Section 15-1-57 of the Mississippi

Code provides:

                                               15
       Where any person shall be prohibited by law, or restrained or enjoined by
       order, decree, or process of any court in this state from commencing or
       prosecuting any action or remedy, the time during which such person shall be
       so prohibited, enjoined or restrained, shall not be computed as any part of the
       period of time limited by this chapter from the commencement of such action.

Miss. Code Ann. § 15-1-57 (Rev. 2003).

¶28.   Regardless of the validity of this Court’s interlocutory appeal order which stayed the

proceedings and tolled the statute of limitations, the Legislature provided a savings measure

which removes the period of time a party is prohibited from prosecuting her claim from

computation under the applicable statute of limitations. The Longs were restrained by orders

of the circuit court from prosecuting their claims against the fictitious party defendants

identified in their lawsuit when the circuit court dismissed those claims. They were similarly

prohibited from prosecuting their claims under the McKinney complaint by the same circuit

court orders. This Court’s order granting interlocutory appeal stayed the proceedings in both

lawsuits and provided that the statute of limitations would be tolled for the duration of the

appeal. According to the savings measure provided by the statute, the time the Longs were

prohibited from prosecuting their claims by the orders of this Court and the circuit court is

not included in the computation of time allowed to file suit under the medical malpractice

statute of limitations.

¶29.   On remand after the interlocutory appeal, the Longs were no longer prohibited from

prosecuting their claims, and the statute of limitations began to run once again. The record

reflects the Longs named Vaughan as a defendant just over three months after remand and

served process upon him within ten months after remand. The McKinney complaint was

                                             16
active for eleven months before the interlocutory appeal order was entered. The time allowed

by the medical malpractice statute of limitations had not yet expired when Vaughan was

served with the amended complaint. The circuit court erred in dismissing Vaughan as a

defendant. Therefore, the judgment of the circuit court as to Vaughan is reversed, and this

matter remanded for further proceedings.

¶30.      We recognize that the courts of this state have no power to extend statutes of

limitations beyond their terms. See Shewbrooks v. A.C. & S., Inc., 529 So. 2d 557, 564

(Miss. 1988).      Nothing in this Court’s opinion should be read to support a contrary

conclusion. However, the order of this court did restrain the Longs’s ability to prosecute

their claims, and under those circumstances it is the Legislature and its statute, not this body,

which exempts the time from calculation under the malpractice limitations statute. We do

not anticipate that conflicts of this nature, between co-plaintiff parties in a wrongful death

action–one of which has access to medical records and excludes the others, will occur in the

future.

III.      WHETHER EQUITABLE PRINCIPLES SUCH AS EQUITABLE
          TOLLING APPLY TO PRESERVE THE LONGS’S CLAIMS AGAINST
          MEMORIAL HOSPITAL AND/OR DR. VAUGHAN IN LIGHT OF THE
          PROCEDURAL HISTORY AND THE REASONING OF LONG V.
          McKINNEY, 897 So. 2d 160 (Miss. 2004).

¶31.      The Longs finally argue that this court should hold the statute of limitations to be

equitably tolled from the time their participation in the McKinney lawsuit was restricted by

the circuit court until remand of this matter. Memorial Hospital and Vaughan respond by

arguing that equitable tolling does not apply to either of them because they took no steps to

                                               17
prevent the filing of the lawsuit and are not responsible for the conflicts between McKinney

and the Longs.

¶32.   The circuit court dismissed Memorial Hospital “without prejudice” and without

considering whether the statute of limitations now bars McKinney’s claims against Memorial

Hospital. This ruling on the issue disposed of the motion and granted the relief requested.

Under the circumstances, we will not address this issue as it is not properly before us.

¶33.   Since we are reversing the circuit court’s order dismissing Vaughan and remanding

for further proceedings, this issue is moot with respect to Vaughan.

                                      CONCLUSION

¶34.   The circuit court was correct in dismissing Memorial Hospital without prejudice,

because there exists no good cause in the record for McKinney’s complete failure to serve

process on it. The circuit court erred in dismissing Vaughan with prejudice because the

Longs were restrained from prosecuting their claims by the orders of the circuit court and this

Court. This time, by statute, is not included within the computation of time under the

medical malpractice statute of limitations. The Longs timely named Vaughan as a defendant

and served process upon him before the period under the malpractice statute of limitations

expired. Therefore, the judgment of the circuit court dismissing Vaughan is reversed, and

this matter remanded for further proceedings.

¶35.   AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

      SMITH, C.J., EASLEY, CARLSON, DICKINSON AND LAMAR, JJ.,
CONCUR. DIAZ, P.J., CONCURS IN RESULT ONLY. GRAVES AND RANDOLPH,
JJ., NOT PARTICIPATING.

                                              18
19
