                IN THE SUPREME COURT OF MISSISSIPPI

                        NO. 2005-IA-00607-SCT

WILLIE MAE VEAL, INDIVIDUALLY AND AS
ADMINISTRATRIX OF THE ESTATE OF WILLIE
MAE SMITH, FOR THE USE AND BENEFIT OF
THE ESTATE AND WRONGFUL DEATH
BENEFICIARIES OF WILLIE MAE SMITH

v.

J. P. MORGAN TRUST COMPANY, N.A. f/k/a
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION; EATON VANCE
CORP.; EATON VANCE MUNICIPALS TRUST
AND EATON VANCE MUNICIPALS TRUST II

DATE OF JUDGMENT:               03/03/2005
TRIAL JUDGE:                    HON. W. ASHLEY HINES
COURT FROM WHICH APPEALED:      WASHINGTON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:        DOUGLAS BRYANT CHAFFIN
                                GARRY JAMES RHODEN
                                KENNETH L. CONNER
                                SUSAN NICHOLS ESTES
ATTORNEYS FOR APPELLEES:        MARK HERNDON TYSON
                                H. HUNTER TWIFORD
                                LAWRENCE D. WADE
                                BRADLEY FAREL HATHAWAY
                                LEANN W. NEALEY
                                CHAD ROBERTS HUTCHINSON
NATURE OF THE CASE:             CIVIL - PERSONAL INJURY
DISPOSITION:                    AFFIRMED - 05/10/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

     EN BANC.

     DICKINSON, JUSTICE, FOR THE COURT:
¶1.    We granted plaintiffs’ interlocutory appeal to consider whether the Circuit Court of

Washington County erred in striking the amended complaint and dismissing newly named

defendants. Finding no error, we affirm the trial judge’s order.

                   BACKGROUND FACTS AND PROCEEDINGS

¶2.    On December 26, 2002, Willie Mae Veal (“Veal”) brought an action on behalf of the

Estate of Willie Mae Smith (“Smith”) against two corporations alleged to be in control of

Autumn Leaves Nursing Home, the nursing home’s administrator and licensee, as well as ten

“John Does” and ten “Unidentified Entities.” The complaint alleged negligence, medical

malpractice, malice and/or gross negligence, fraud, statutory survival, and statutory wrongful

death claims against all of the defendants. Before any responsive pleadings were filed, the

plaintiff filed an Amended Complaint to add that Veal had been appointed Administratrix of

Smith’s Estate. On March 27, 2003, the named defendants filed an answer, and discovery

followed.

¶3.    On August 31, 2004, after obtaining the written consent of the named defendants,

Veal filed a Second Amended Complaint, which purported to substitute the true names of

several fictitious parties, who were referred to in her Original and First Amended Complaints

as “John Does” and “Unidentified Entities.” The newly named defendants included: J.P.

Morgan Trust Co.; Eaton Vance Corp.; Eaton Vance Municipals Trust; Eaton Vance

Municipals Trust II; and Donald R. Dwight, James B. Hawkes, and Jessica M. Bibliowicz

as Trustees of Eaton Vance Municipals Trust and Eaton Vance Municipals Trust II. In

addition, the Second Amended Complaint included new facts and allegations regarding the

“substituted” defendants’ involvement and alleged control over the defendant corporations.


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¶4.    In response to Veal’s Second Amended Complaint, J.P. Morgan Trust Co. (“J.P.

Morgan”) filed a motion to dismiss, arguing that Veal had failed to comply with Rules 15(a),

10(d), 9(b), and 12(e) of the Mississippi Rules of Civil Procedure. Defendants Eaton Vance

Municipals Trust, Eaton Vance Municipals Trust II and Eaton Vance Corp. (collectively

“Eaton Vance”) also filed a motion to dismiss, arguing that the plaintiff failed to obtain leave

to file her Second Amended Complaint as required by Rule 21 or, in the alternative, Rule

15(a). Veal responded, arguing that under Rule 15(a), she was not required to obtain leave

of the court, because she had obtained the written consent of the existing defendants to the

action prior to filing her Second Amended Complaint.

¶5.    After a hearing on the motions, the trial judge issued an order striking Veal’s Second

Amended Complaint and dismissing J.P. Morgan without prejudice because Veal had failed

to obtain leave of the court as required by Rule 21 of the Mississippi Rules of Civil

Procedure. The trial court reasoned that Rule 15(a)’s provision allowing “written consent

of the adverse party” could not apply when new defendants were added, because counsel for

the existing defendants could not consent to an amendment of the complaint on behalf of the

proposed new defendants. The trial court resolved the issue by looking to Mississippi Rule

of Civil Procedure 21, which addresses the addition of a party, and requires an order of the

court. Four days later, on March 7, 2005, the trial judge issued another order dismissing

Eaton Vance without prejudice, without stating the reasons for dismissal. Aggrieved by the

orders, Veal sought an Interlocutory Appeal. We granted the appeal and stayed all trial court

proceedings.




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                                        ANALYSIS

¶6.    Veal’s single issue on appeal is whether Rule 9(h) of the Mississippi Rules of Civil

Procedure requires leave of the court before a fictitious party may be substituted. Although

we find that it does not, we further find that Veal’s Second Amended Complaint did not

substitute fictitious parties, but rather added new parties to the cause of action, asserting

additional facts and allegations against these newly added defendants. Thus, in adding new

defendants, Veal was required by Rule 21 of the Mississippi Rules of Civil Procedure to

obtain leave of the court.

¶7.    The application of the Mississippi Rules of Civil Procedure in this case is a question

of law. “When the issues presented on an interlocutory appeal are questions of law, this

Court will review those issues, as other questions of law, de novo.” Gant v. Maness, 786 So.

2d 401, 403 (Miss. 2001). Furthermore, this Court is bound to follow the plain and ordinary

meanings of the Rules of Civil Procedure. See Poindexter v. Southern United Fire Ins. Co.,

838 So. 2d 964, 971 (Miss. 2003); Van Meter v. Alford, 774 So. 2d 430, 432 (Miss. 2000).

       I. Substituted Parties Pursuant to Rule 9(h).

¶8.    In addressing the question presented, we must first determine whether “John Does 1

through 10,” and “Unidentified Entities 1 through 10” were truly “fictitious parties,” so as

to come under the purview of Rule 9(h). This, in turn, requires that we examine whether J.P.

Morgan; Eaton Vance; Donald R. Dwight, James B. Hawkes, and Jessica M. Bibliowicz as

Trustees of Eaton Vance, are legitimate substitutions for the fictitious parties named in the

complaint, or instead, are new parties brought into the litigation.




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¶9.    Rule 9(h) reads:

       When a party is ignorant of the name of an opposing party and so alleges in
       his pleading, the opposing party may be designated by any name, and when his
       true name is discovered the process and all pleadings and proceedings in the
       action may be amended by substituting the true name and giving proper notice
       to the opposing party.

Miss. R. Civ. P. 9(h) (emphasis added). Thus, where a plaintiff wishes to file suit against a

defendant whose name is not known, the suit may be filed by providing the defendant a

fictitious name. Rule 9(h) is not intended to serve as an insurance policy to plaintiffs who

wish to protect themselves in case they discover new defendants in the course of litigation.

Rule 9(h) authorizes the plaintiff to deviate in only one respect from the requirements of the

Mississippi Rules of Civil Procedure in bringing a claim. That is, the plaintiff is allowed to

use a fictitious name, rather than the true name of the defendant. In other words, the purpose

of Rule 9(h) is to allow a plaintiff to proceed with a lawsuit where the plaintiff knows and

can articulate the wrongful conduct of, and claims against, the fictitious party, but simply

does not know that party’s name.

¶10.   Rule 9(h) does not say that a plaintiff may include a fictitious party because the

plaintiff suspects that there might be someone out there who might have engaged in conduct

which might be actionable. For instance, if the plaintiff knew that a nurse was assisting a

doctor with a procedure and that the nurse engaged in negligent conduct, the plaintiff is not

prevented from proceeding with litigation against the nurse simply because the plaintiff does

not know the name of the nurse. The plaintiff may sue “Nurse X” and upon learning the

nurse’s name, substitute it for the fictitious party under Rule 9(h). See Miss. R. Civ. P. 9(h).




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¶11.   However, where a plaintiff suspects that there might have been others involved in the

procedure who might have been negligent, but is, at the time suit is filed, unaware of who

they are or what negligent act they are alleged to have committed, the plaintiff may not

include a fictitious party in the complaint. This Court has previously stated that “the purpose

of Rule 9(h) is to provide a mechanism to bring in responsible parties, known, but

unidentified, who can only be ascertained through the use of judicial mechanisms such as

discovery.” Ralph Walker, Inc. v. Gallagher, 926 So. 2d 890, 896–97 (Miss. 2006)

(emphasis added).

¶12.   Having said that, we find it important to point out that the explicit language of Rule

9(h) does not require leave of the court to amend pursuant to Mississippi Rule of Civil

Procedure 15(a). In cases where it is unnecessary to amend the content or the substance of

a plaintiff’s complaint, and the only change is to substitute the defendant’s true name for the

fictitious name Rule 9(h) applies, and leave of court is not required.

¶13.   Here, however, Veal included in her complaint allegations against “fictitious” parties

“Defendants John Does 1 through 10,” and “Defendants Unidentified Entities 1 through 10.”

With respect to these fictitiously named defendants, Veal alleged the following:

       Said Defendants are named pursuant to Miss. R. Civ. P. 9(h), insofar as their
       acts and/or omissions were negligent and/or otherwise tortious with respect to
       the care and treatment of, or in the staffing, supervision, administration and
       direction of the care and treatment of, [the deceased] during her residency at
       AUTUMN LEAVES NURSING HOME. Alternatively, said Defendants are
       liable for the negligent and/or otherwise tortious acts and/or omissions of
       others with respect to the care and treatment of [the deceased] during her
       residency at AUTUMN LEAVES NURSING HOME.




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¶14.   These general allegations provide no indication that Veal was aware of the existence

of any of the additional defendants added by the Second Amended Complaint. Veal simply

attempted to substitute newly discovered defendants for the previously named fictitious

parties. Veal not only added new allegations against these “substituted” defendants, but also

included new facts in support of these allegations. As to the new allegations, Veal asserted

that the newly named defendants were negligent and/or tortious with respect to the care and

treatment of the deceased, “and/or in the staffing, supervision, administration, operation,

oversight, and/or control of the Autumn Leaves Nursing Home which harmed [the

deceased].” (Emphasis added). In addition, Veal included an eight-page factual summary

titled “The Control by Defendants of the Autumn Leaves Nursing Home,” which described

in detail the purchasing and financing of the Autumn Leaves Nursing Home as well as the

alleged wrongdoing by the newly named defendants alleged to be in the control and

operation of Autumn Leaves Nursing Home. This factual summary included new theories

of “bondholders’ control” and “lender liability” against the newly named defendants, none

of which were included in Veal’s Original and First Amended Complaints.

¶15.   Because these substituted defendants were not fictitious parties, they could not have

been simply substituted in accordance with the provisions of Rule 9(h).

       II. Amended Pleadings Pursuant to Rule 15(a).

¶16.   Veal argues that she obtained written consent from the original defendants to amend

the complaint and, in accordance with Rule 15(a), she was entitled to file a Second Amended

Complaint which “substituted” fictitious defendants without leave of the court. It is true that

once a responsive pleading has been filed, a complaint may be amended by written consent

                                              7
of the adverse party without leave of court. Rule 15(a) states in pertinent part:

       A party may amend a pleading as a matter of course at any time before a
       responsive pleading is served, or, if a pleading is one to which no responsive
       pleading is permitted and the action has not been placed upon the trial
       calendar, the party may so amend it at any time within thirty days after it is
       served. . . Otherwise a party may amend a pleading only by leave of court or
       upon written consent of the adverse party; leave shall be freely given when
       justice so requires. . . .

Miss. R. Civ. P. 15(a) (emphasis added).

¶17.   However, even where a plaintiff has obtained consent from the adverse party to amend

the complaint, leave of court may still be required by a different rule. Where, as here, the

amendment sought is to add new defendants, Mississippi Rule of Civil Procedure 21 is

applicable, and requires an order from the court to add a new defendant. See 61A Am. Jur.

2d Pleading § 787 (stating that “when a proposed amendment seeks to add parties to the suit

. . . Rule 21 provides that in such a situation, the parties must obtain approval of the

amendment from the court.”). Although we have not previously addressed this precise issue,

it has been addressed by several federal circuit courts of appeal in interpreting analogous

Federal Rules of Civil Procedure. Under such circumstances, we find this federal authority

persuasive. See Hartford Cas. Ins. Co. v. Halliburton Co., 826 So. 2d 1206, 1215 (Miss.

2001) (this Court looking to federal interpretations of our state counterparts as persuasive

authority when interpreting the Mississippi Rules of Civil Procedure).

¶18.   In Moore v. Indiana, the Seventh Circuit stated that “[a]lthough Rule 15(a) generally

permits the plaintiff to amend his complaint once as a matter of course before a response

pleading is served . . . the plaintiff’s requested amendment required leave from the court

because it sought to assert claims against additional defendants.” 999 F.2d 1125, 1128 (7th

                                              8
Cir. 1993) (emphasis added). Similarly, in Age of Majority Educ. Corp. v. Preller, the

Fourth Circuit held that, pursuant to Rule 21 of the Federal Rules of Civil Procedure, leave

of the court is required to be “sought and obtained as a prerequisite to filing the amended

complaint.” 512 F.2d 1241, 1246 (4th Cir. 1975).

¶19.   Veal’s Second Amended Complaint includes new language which was included with

consent from the original named defendants. If these amendments had been the only changes

to the First Amended Complaint, leave of court would not have been necessary. See Miss.

R. Civ. P. 15(a). However, because the Second Amended Complaint added new defendants,

it also included an amendment which required court approval pursuant to Rule 21. Veal’s

failure to obtain court approval rendered the entire Second Amended Complaint improper.

Therefore, we affirm the trial judge’s order striking Veal’s Second Amended Complaint.

                                     CONCLUSION

¶20.   For the foregoing reasons, the orders of the Circuit Court of Washington County

dismissing J.P. Morgan and Eaton Vance and striking Veal’s Second Amended Complaint

are affirmed.

¶21.   AFFIRMED.

     SMITH, C.J., WALLER, P.J., EASLEY AND RANDOLPH, JJ., CONCUR.
DIAZ, P.J., AND GRAVES, J., DISSENT WITHOUT SEPARATE WRITTEN
OPINION. CARLSON, J., NOT PARTICIPATING.




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