              IN THE SUPREME COURT OF MISSISSIPPI

                        NO. 2006-CA-01703-SCT

NORMAN Q. THOMAS, JR., INDIVIDUALLY AND
ON BEHALF OF WILLIAM THOMAS AND ANNA
THOMAS, TWO MINORS

v.

CLARK G. WARDEN, M.D.

DATE OF JUDGMENT:               08/28/2006
TRIAL JUDGE:                    HON. W. SWAN YERGER
COURT FROM WHICH APPEALED:      HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:        L. BRELAND HILBURN
                                CARROLL LOUIS CLIFFORD, IV
                                PATRICK JOSEPH SCHEPENS
                                ROGER LANE McGEHEE, JR.
ATTORNEYS FOR APPELLEE:         STUART BRAGG HARMON
                                KRISTOPHER ALAN GRAHAM
NATURE OF THE CASE:             CIVIL - MEDICAL MALPRACTICE
DISPOSITION:                    AFFIRMED IN PART; REVERSED AND
                                RENDERED IN PART - 12/11/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
                     CONSOLIDATED WITH

                        NO. 2007-CA-00821-SCT

NORMAN Q. THOMAS, JR., INDIVIDUALLY AND
ON BEHALF OF WILLIAM THOMAS AND ANNA
THOMAS, TWO MINORS

v.

MISSISSIPPI BAPTIST MEDICAL CENTER AND
CLARK G. WARDEN, M.D.

DATE OF JUDGMENT:                03/09/2007
TRIAL JUDGE:                     W. SWAN YERGER
COURT FROM WHICH APPEALED:       HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                     L. BRELAND HILBURN
                                             CARROLL LOUIS CLIFFORD
                                             PATRICK JOSEPH SCHEPENS
                                             ROGER LANE McGEHEE, JR.
ATTORNEYS FOR APPELLEE:                      EUGENE RANDOLPH NAYLOR
                                             ELIZABETH G. HOOPER
NATURE OF THE CASE:                          MEDICAL MALPRACTICE
DISPOSITION:                                 AFFIRMED IN PART; REVERSED AND
                                             RENDERED IN PART - 12/11/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       DICKINSON, JUSTICE, FOR THE COURT:

¶1.    This is a medical-negligence case which was dismissed by the trial court prior to

adjudication of the merits because the plaintiff failed to comply with clear statutory

requirements. We affirm in part and reverse and render in part.

                  FACTUAL AND PROCEDURAL BACKGROUND

¶2.    The facts necessary to address the issues before us are essentially undisputed. On

October 1, 2002, Dr. Clark G. Warden performed a duodenal switch bariatric surgery on

Melinda Thomas at Ocean Springs Hospital. Due to complications, Thomas was admitted

to Mississippi Baptist Medical Center (“MBMC”), where she died on September 7, 2003.

¶3.    On September 6, 2005, Norman Q. Thomas, Jr. (“Mr. Thomas”),1 sent a pre-suit

notice letter to MBMC and Dr. Warden. We are not told when MBMC received its notice.

The notice addressed to Dr. Warden was returned, and Mr. Thomas sent another notice to a

different address, but we are told that Dr. Warden received notice on October 24, 2005.


       1
         Norman Thomas provided notice and filed suit individually, and on behalf of two minor
children, William Thomas and Anna Thomas. We are not told of the relationship of any of these
three individuals to the decedent, Melinda Thomas.

                                              2
¶4.    On November 4, 2005, Mr. Thomas filed suit against MBMC and Dr. Warden.2

MBMC filed its answer on December 20, 2005, raising as affirmative defenses the

“plaintiffs’ failure to comply with § 11-1-58,” and “plaintiffs’ failure to comply with

conditions precedent to the initiation of litigation.”

¶5.    On January 3, 2006, Mr. Thomas filed a certificate of compliance with Mississippi

Code Annotated Section 11-1-58, and on January 31, 2006, Dr. Warden filed a motion to

dismiss the complaint, alleging that the plaintiffs failed to wait sixty days after notice before

filing suit, as required by Mississippi statutory law.

¶6.    On January 31, 2006, Dr. Warden noticed his motion to dismiss for a hearing to be

held on March 27, 2006. On August 28, 2006, the trial court granted Dr. Warden’s motion

to dismiss.

¶7.    On October 17, 2006, MBMC filed its Motion to Dismiss or, in the Alternative, for

Summary Judgment. On March 9, 2007, the trial court granted MBMC’s motion, with

prejudice, finding Thomas failed to strictly comply with Mississippi Code Annotated Section

11-1-58 by not including a certificate of expert consultation with the complaint, and with

Section 15-1-36(15) by not providing sixty days notice of the action to the defendants.

Thomas appealed as to each defendant, and the appeals were consolidated.

                                            ANALYSIS

¶8.    Thomas raises the following five issues on appeal:

       I.        Whether the trial court erred in its determination that Miss. Code Ann.§
                 11-1-58 and Miss. Code Ann. § 15-1-36(15) are facially valid as the
                 statutes did not violate the Separation of Powers Clause of the

       2
           We are not told if, or when, process was served on either defendant.

                                                  3
              Mississippi Constitution of 1890 by unconstitutionally usurping judicial
              rulemaking power.

       II.    Whether the trial court erred in its determination that strict compliance
              is the appropriate standard of compliance, pursuant to Miss. Code Ann.
              § 11-1-58.

       III.   Whether the trial court erred in its determination that Miss. Code Ann.
              § 15-1-36(15) is facially valid and that it does not violate the plaintiff’s
              constitutional rights to open courts pursuant to the Mississippi
              Constitution of 1890.

       IV.    Whether the trial court erred in its determination that strict compliance
              is the appropriate standard of compliance, pursuant to Miss. Code Ann.
              § 15-1-36(15).

       V.     Whether the trial court erred in its determination that Miss. Code Ann.
              § 11-1-58 and § 15-1-36(15) did not impinge on the plaintiff’s
              fundamental rights to open and accessible courts in violation of the
              equal protection clauses of the Mississippi and United States
              Constitutions.

¶9.    Our recent decision in Wimley v. Reid, 991 So. 2d 135 (Miss. 2008), is dispositive of

a portion of Thomas’s first issue, and of issue two. We shall analyze issue one by first

addressing Section 11-1-58, and then Section 15-1-36(15).

       Section 11-1-58

¶10.   Mississippi Code Annotated section 11-1-58 provides, in relevant part:

              (1) In any action against a licensed physician, health care provider or
              health care practitioner for injuries or wrongful death arising out of the
              course of medical, surgical or other professional services where expert
              testimony is otherwise required by law, the complaint shall be
              accompanied by a certificate executed by the attorney for the plaintiff
              declaring that:

                     (a) The attorney has reviewed the facts of the case and
                     has consulted with at least one (1) expert qualified
                     pursuant to the Mississippi Rules of Civil Procedure and
                     the Mississippi Rules of Evidence who is qualified to


                                               4
                      give expert testimony as to standard of care or negligence
                      and who the attorney reasonably believes is
                      knowledgeable in the relevant issues involved in the
                      particular action, and that the attorney has concluded on
                      the basis of such review and consultation that there is a
                      reasonable basis for the commencement of such action.
                      ....

Miss. Code Ann. §11-1-58(1)(a) (Supp. 2008).

¶11.   In Wimley, the issue was whether a complaint should be dismissed where the plaintiff

failed to attach a certificate or waiver as required by Section 11-1-58. We held that

       a complaint, otherwise properly filed, may not be dismissed, and need not be
       amended, simply because the plaintiff failed to attach a certificate or waiver.
       To the extent Walker [v. Whitfield Nursing Ctr., Inc., 931 So. 2d 583, 591
       (Miss. 2006)] and its progeny hold otherwise, they are hereby overruled.

Wimley, 991 So. 2d at 138. In so holding, we stated that

       we are unable to ignore the constitutional imperative that the Legislature
       refrain from promulgating procedural statutes which require dismissal of a
       complaint, and particularly a complaint filed in full compliance with the
       Mississippi Rules of Civil Procedure. We find Section 11-1-58's requirement
       that a complaint be accompanied by a certificate or waiver to be just such a
       procedural statute.

Id.

¶12.   Wimley is dispositive of this issue. The trial court was in error, insofar as it based its

dismissal of Thomas’s complaint on his failure to include a certificate of compliance with

the complaint.

       Section 15-1-36(15)

¶13.   The second argument presented in Thomas’ first issue on appeal, and the arguments

presented in his remaining issues on appeal, pertain to the constitutionality of Section 15-1-




                                               5
36, and whether this Court should require strict compliance with that statute’s notice

requirement. Mississippi Code Annotated Section 15-1-36(15) states:

               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 the
       commencement of the action shall be extended 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).

¶14.   In Pitalo v. GPCH-GP, Inc., 933 So. 2d 927 (Miss. 2006), we affirmed a trial court’s

dismissal of a complaint for failure to comply with the notice requirements of Section 15-1-

36(15). In so doing, we held that “this Court will apply the plain meaning of the statute.”

Id. at 929. We further noted:

       When drafting Miss. Code Ann. Section 15-1-36(15), the Legislature did not
       incorporate any given exceptions to this rule which would alleviate the
       prerequisite condition of prior written notice. Simply stated, “shall” is
       mandatory, while “may” is discretionary.

Id. (internal citations omitted). See also Arceo v. Tolliver, 949 So. 2d 691 (Miss. 2006)

(citing Pitalo, with approval).

¶15.   The reasoning set forth in both Pitalo and Arceo is applicable to today’s case. Section

15-1-36(15) clearly and unambiguously states that “[n]o 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.” Miss. Code Ann.

                                               6
§ 15-1-36(15) (Rev.2003). Thus, because the defendants in this case did not have “sixty (60)

days’ prior written notice of the intention to begin the action,” this lawsuit was not lawfully

filed, and it is of no legal effect.

¶16.   The separate opinion states: “Thomas maintains the sixty days would have expired

on Saturday, November 5, 2005, but that the statute of limitations was going to expire on

Sunday, November 6, 2005, so the complaint was filed on Friday, November 4, 2005.” Sep.

Op. ¶ 42. It is surprising that the author of the separate opinion is persuaded to any degree

by this absurd argument. Mississippi Rule of Civil Procedure 6(a) clearly provides:

       In computing any period of time prescribed or allowed by. . . any applicable
       statute, the day of the act, event, or default . . . shall not be included. The last
       day of the period so computed shall be included, unless it is . . . a Sunday . .
       . in which event the period runs until the end of the next day which is not a
       Saturday, a Sunday, a legal holiday, or any other day when the courthouse or
       the clerk’s office is closed.

Miss. R. Civ. P. 6(a) (emphasis added). Thus, the complaint could have been filed on

Monday, November 7, 2005.

¶17.   Some argue that strictly enforcing the statute’s sixty-day notice requirement before

the right to file suit ripens is unfair. Such arguments should be made to the Legislature,

which made the rule. Our constitutional duty is to interpret and apply the law as it is written,

not as we think it might have been more fairly written.

¶18.   Our duty does, however, require that we set aside statutory provisions which violate

the Mississippi or federal constitution. Thomas asserts that Section 15-1-36(15) directly

conflicts with Section 24 of the Mississippi Constitution, which guarantees “[a]ll courts shall

be open . . . and justice shall be administered without sale, denial, or delay,” because the



                                                7
sixty-day notice requirement impedes or delays citizens’ access to courts. We previously

addressed this concern in Arceo, in which Justice Carlson, writing for the majority, stated:

       “There is no absolute right of access to the courts. All that is required is a
       reasonable right of access to the courts - a reasonable opportunity to be heard.”
       Wayne v. Tenn. Valley Auth., 730 F.2d 392, 403 (5th Cir. 1984) (cited with
       approval in Townsend [v. Estate of Gilbert], 616 So. 2d 333, 337 (Miss.
       1993)). While the right under our state and federal constitutions to access to our
       courts is a matter beyond debate, this right is coupled with responsibility,
       including the responsibility to comply with legislative enactments, rules, and
       judicial decisions. While the plaintiff in today's case had the constitutional right
       to seek redress in our state courts for the unfortunate death of her daughter, she
       likewise had the responsibility to comply with the applicable rules and statutes,
       including section 15-1-36(15). Any different approach would render
       meaningless any rule or statute setting time limitations on litigants.

Arceo, 949 So. 2d at 697.

¶19.   Thomas also asserts that Section 15-1-36(15) violates the Separation of Powers Clause

of the Mississippi Constitution by unconstitutionally usurping judicial rule-making power.

Thomas further asserts that the notice requirement in Section 15-1-36(15) conflicts with

Rule 3 of the Mississippi Rules of Civil Procedure, which sets out the procedure for the

commencement of an action, and which contains no such notice requirement. Thomas finally

asserts that the notice requirement suspends application of the Mississippi Rules of Civil

Procedure with regard to medical-malpractice plaintiffs, who have a constitutionally

protected right to file a complaint and preserve their rights and claims on the date of accrual

just like any other tort victim.

¶20.   These arguments are without merit. While it is true that the rules governing litigation

in Mississippi courts are within this Court’s purview, Section 15-1-36(15)’s notice

requirement is a pre-suit prerequisite to a claimant’s right to file suit. The statute clearly



                                               8
provides that “no action . . . may be begun” until the notice requirement is met. The

Legislature’s authority to make law gives way to this Court’s rule-making authority when

the suit is filed, not before.

¶21.   Although Wimley addressed a different statute, we nevertheless addressed in that case

the constitutionality of statutory pre-suit requirements:

       We hasten to say that our holding today has no effect on the constitutionality
       or applicability of other provisions or requirements of Section 11-1-58. Indeed,
       we guard just as diligently the Legislature’s prerogative to set forth in
       legislation whatever substantive, pre-suit requirements for causes of action, and
       prerequisites to filing suit, it deems appropriate . . . . As stated, pre-suit
       requirements are clearly within the purview of the Legislature, and do not
       encroach upon this Court’s rule-making responsibility. Indeed, we consistently
       have held that the Legislature has authority to establish presuit requirements as
       a condition precedent to filing particular kinds of lawsuits.

Wimley, 991 So. at 139.

¶22.   Because Thomas failed to provide a sixty-day notice as required by Section 15-1-

36(15), we must affirm the trial court’s dismissal of the complaint. However, we hold that

the trial court had no authority to enter judgment on behalf of either defendant, as no

argument on the merits was presented by either defendant. The complaint should have

simply been dismissed, without prejudice.

                                       CONCLUSION

¶23.   The trial court erred in granting judgment to the defendants and in dismissing the

complaint for the plaintiff’s failure to file with the complaint a certificate of compliance as

required by Section 11-1-58. Although the trial court erred in granting summary judgment

to either defendant, the trial court’s dismissal of the complaint for the plaintiff’s failure to




                                               9
comply with the notice requirement of Section 15-1-36(15) is affirmed. The dismissal,

however, should have been without prejudice.3

¶24.   AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

    SMITH, C.J., WALLER, P.J., CARLSON, RANDOLPH AND LAMAR, JJ.,
CONCUR. GRAVES, J., CONCURS IN PART AND DISSENTS IN PART WITH
SEPARATE WRITTEN OPINION JOINED BY DIAZ, P.J., AND EASLEY, J.

       GRAVES, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶25.   I agree with the majority of this Court that Wimley v. Reid, 991 So. 2d 135 (Miss.

2008), is dispositive of the issues pertaining to Mississippi Code Annotated Section 11-1-58.

However, I disagree with the majority’s finding affirming the trial court’s dismissal of the

complaint for failure to provide notice pursuant to Section 15-1-36(15). Because the issues

raised by Thomas have merit, I would find that this matter should be reversed and remanded.

Therefore, I respectfully concur in part and dissent in part.

¶26.   When reviewing a trial court’s grant or denial of a motion to dismiss or a motion for

summary judgment, this Court applies a de novo standard of review. Burleson v. Lathem,

968 So. 2d 930, 932 (Miss. 2007). See also Monsanto Co. v. Hall, 912 So. 2d 134, 136

(Miss. 2005); Saucier v. Biloxi Reg’l Med. Ctr., 708 So. 2d 1351, 1354 (Miss. 1998); and

Miss. R. Civ. P. 56(c). “When considering a motion to dismiss, the allegations in the

complaint must be taken as true and the motion should not be granted unless it appears

beyond doubt that the plaintiff will be unable to prove any set of facts in support of his




       3
        This opinion should not be read as dispositive of whether the statute of limitations has, or
has not, expired. We do not today address that issue, and hold only that the suit was filed
prematurely.

                                                10
claim.” Burleson 968 So. 2d at 932 (quoting Scaggs v. GPCH-GP, Inc., 931 So. 2d 1274,

1275 (Miss. 2006)).

¶27.     In reviewing a grant or denial of a motion for summary judgment, this Court must

examine all the evidentiary matters before it. Monsanto, 912 So. 2d at 136. “The movant

carries the burden of demonstrating that no genuine issue of material fact exists, and the non-

moving party is given the benefit of the doubt as to the existence of a material fact. . . . If no

genuine issue of material fact exists and the moving party is entitled to judgment as a matter

of law, summary judgment should be entered in that party’s favor.” Id.

¶28.     An order denying a motion for relief from judgment pursuant to Rule 60(b) is

reviewed under an abuse-of-discretion standard. Stringfellow v. Stringfellow, 451 So. 2d

219, 221 (Miss. 1984). See also Montgomery v. Montgomery, 759 So. 2d 1238, 1240 (Miss.

2000).

¶29.     Mississippi Code Annotated section 11-1-58 provides, in relevant part:

                (1) In any action against a licensed physician, health care provider or
         health care practitioner for injuries or wrongful death arising out of the course
         of medical, surgical or other professional services where expert testimony is
         otherwise required by law, the complaint shall be accompanied by a certificate
         executed by the attorney for the plaintiff declaring that:
                        (a) The attorney has reviewed the facts of the case and has
                consulted with at least one (1) expert qualified pursuant to the
                Mississippi Rules of Civil Procedure and the Mississippi Rules of
                Evidence who is qualified to give expert testimony as to standard of
                care or negligence and who the attorney reasonably believes is
                knowledgeable in the relevant issues involved in the particular action,
                and that the attorney has concluded on the basis of such review and
                consultation that there is a reasonable basis for the commencement of
                such action. . . .

Miss. Code Ann. §11-1-58(1)(a) (Supp. 2008).



                                                11
¶30.   With regard to issue II and portions of issues I and V, this Court’s recent decision in

Wimley v. Reid, 991 So. 2d 135 (Miss. 2008), is dispositive. In Wimley, this Court found

strict compliance to be an inappropriate standard for Section 11-1-58 and held that a

complaint otherwise properly filed cannot be dismissed because of the failure to attach a

certificate of expert consultation. Id. Specifically, this Court held:

               Accordingly, we hold that a complaint, otherwise properly filed, may
       not be dismissed, and need not be amended, simply because the plaintiff failed
       to attach a certificate or waiver. To the extent Walker [v. Whitfield Nursing
       Ctr., Inc., 931 So. 2d 583, 591 (Miss. 2006)] and its progeny hold otherwise,
       they are hereby overruled.

Id. at 138. In so holding, this Court said:

       [W]e are unable to ignore the constitutional imperative that the Legislature
       refrain from promulgating procedural statutes which require dismissal of a
       complaint, and particularly a complaint filed in full compliance with the
       Mississippi Rules of Civil Procedure. We find Section 11-1-58's requirement
       that a complaint be accompanied by a certificate or waiver to be just such a
       procedural statute.

Id. Moreover, this Court found that Section 11-1-58 conflicts with Rule 8 of the Mississippi

Rules of Civil Procedure. Id.

¶31.   Accordingly, this matter should be reversed as it pertains to Section 11-1-58 in issues

I, II and V.

¶32.   The remainder of the issues raised on appeal pertain to Mississippi Code Annotated

Section 15-1-36(15), which states:

              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

                                              12
       expiration of the applicable statute of limitations, the time for the
       commencement of the action shall be extended 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).

¶33.   In Arceo v. Tolliver, 949 So. 2d 691 (Miss. 2006), this Court found that Section 15-1-

36(15) should be strictly construed and that Tolliver’s claim should have been dismissed

because no notice was provided under the statute. However, this Court further found that the

constitutionality of this section was not raised on appeal and it was therefore not addressed.

Specifically, as to strict versus substantial compliance, this Court said:

       However, with all due respect to the dissent, today’s case does not involve a
       question of whether the plaintiff complied with section 15-1-36(15) by
       submitting a notice containing information which was substantial enough to
       be in compliance with the statute. . . . Instead, we are squarely confronted with
       a situation where the plaintiff, in filing an original complaint, a first amended
       complaint, and a second amended complaint, wholly failed to submit any
       notice required by the statute.

Arceo, 949 So. 2d at 697.

¶34.   Arceo is distinguishable because, in the instant case, the constitutionality of the

section has been raised. Moreover, notice was provided, thus allowing an inquiry of whether

such notice substantially complied with the requirements of the statute.

¶35.   Specifically, Thomas asserts that Section 15-1-36(15) violates the Separation of

Powers Clause of the Mississippi Constitution by unconstitutionally usurping judicial rule-

making power. Thomas asserts that the notice requirement in Section 15-1-36(15) conflicts




                                              13
with Rule 3 of the Mississippi Rules of Civil Procedure, which sets out the procedure for the

commencement of an action and contains no such notice requirement.

¶36.   “[T]he inherent power of this Court to promulgate procedural rules emanates from the

fundamental constitutional concept of the separation of powers and the vesting of judicial

powers in the courts.” Claypool v. Mladineo, 724 So. 2d 373, 380 (Miss. 1998). See also

Newell v. State, 308 So. 2d 71, 76 (Miss. 1975). Section 144 of the Mississippi Constitution

says: “The judicial power of the State shall be vested in a Supreme Court and such other courts as

are provided for in this Constitution.” Miss. Const. art. 6, § 144. There is no additional notice

requirement in the judicial rules.

¶37.   Thomas asserts that Section 15-1-36(15) directly conflicts with section 24 of the

Mississippi Constitution which guarantees “[a]ll courts shall be open . . . and justice shall

be administered without sale, denial, or delay” because the sixty-day notice requirement

impedes or delays citizens’ access to courts.4 Thomas also asserts that the notice requirement

suspends application of the Mississippi Rules of Civil Procedure with regard to medical-

malpractice plaintiffs, who have a constitutionally protected right to file a complaint and

preserve their rights and claims on the date of accrual just like any other tort victim. I agree

that a statute requiring a party to wait sixty days after providing notice constitutes a delay.

Moreover, Thomas has a First Amendment right to seek a redress of his grievances in a court

of law. U.S. Const. amend. I.

¶38.   Further, Thomas asserts that the right to open and accessible courts is a fundamental

right, and unless there is a compelling state interest in support of dismissing viable claims


       4
           Miss. Const. art. 3, §24.

                                               14
over procedural mistakes, then Section 15-1-36(15) should be found unconstitutional as

violating the both the Mississippi and United States Constitutions.

¶39.   I would find that Section 15-1-36(15) is a procedural statute requiring sixty days’

notice and that this Court’s finding in Wimley as to section 11-1-58 is likewise applicable

here. As stated above herein, in Wimley, this Court found:

       [W]e are unable to ignore the constitutional imperative that the Legislature
       refrain from promulgating procedural statutes which require dismissal of a
       complaint, and particularly a complaint filed in full compliance with the
       Mississippi Rules of Civil Procedure. We find Section 11-1-58's requirement
       that a complaint be accompanied by a certificate or waiver to be just such a
       procedural statute.

Wimley, 991 So. 2d at 138.

¶40.   Further, the dissent in Arceo correctly addressed the implications of Section 15-1-

36(15):

               The law, as interpreted by the majority, definitely is not in keeping with
       this principle [of freedom of access to the courts], but is in fact irrational,
       illogical, and unfair to those Mississippians seeking a redress of their
       grievance in a medical malpractice claim. Furthermore, the application of the
       pre-suit notice requirement, as interpreted by the majority, unnecessarily
       restricts access to the courts. The constitutional right of notice to the
       defendants was satisfied when Myrtis Tolliver filed her complaint. The
       implementation and enforcement of an additional notice requirement, without
       any other method to cure, is inequitable, unconstitutional, and deprives this
       plaintiff of her day in court.

Arceo, 949 So. 2d at 699, 700 (Graves, J., dissenting).

¶41.   For these reasons, I would find that Section 15-1-36(15) is unconstitutional.

¶42.   Alternatively, Thomas asserts that this Court should find that Section 15-1-36(15)

requires only substantial compliance and not strict compliance, and that neither defendant

can establish any prejudice as a result of any procedural errors. While I do not concede that

                                              15
the statute is constitutional, I will address Thomas’ alternate contention. Thomas maintains

the sixty days would have expired on Saturday, November 5, 2005, but that the statute of

limitations was going to expire on Sunday, November 6, 2005, so the complaint was filed on

Friday, November 4, 2005. Thomas asserts that process was not served until well after the

sixty-day-notice period. Additionally, Thomas asserts that any attempt to analogize this

statute with the Mississippi Tort Claims Act (MTCA) is inappropriate because Section 15-1-

36(15) limits victims’ rights that were previously available at common law, whereas the

MTCA expands victims’ rights where they previously had none under sovereign immunity.

Further, Thomas points to the language in the statute providing for the inapplicability of the

statute to a defendant whose name is not known as an indication against a standard of strict

compliance.

¶43.   Based on the language quoted herein from Arceo regarding substantial compliance,

the wording of the statute and the fact that notice was indeed provided here, the appropriate

inquiry is whether Thomas substantially complied. Given that the complaint was filed only

one day early to avoid a statute-of-limitations problem, Thomas clearly substantially

complied.

¶44.   For the reasons stated herein, I would find that this matter should be reversed and

remanded to the trial court. Therefore, I respectfully concur in part and dissent in part.

       DIAZ, P.J., AND EASLEY, J., JOIN THIS OPINION.




                                             16
