        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                              NO. 2014-CA-01085-COA

DONNA WALDRUP, INDIVIDUALLY, AND ON                                 APPELLANT /
BEHALF OF THE WRONGFUL DEATH                                     CROSS-APPELLEE
BENEFICIARIES OF MARY LINDSEY,
DECEASED

v.

STEPHANIE EADS, APRN, BC                                             APPELLEE /
                                                               CROSS-APPELLANT


DATE OF JUDGMENT:                        07/01/2014
TRIAL JUDGE:                             HON. JOSEPH H. LOPER JR.
COURT FROM WHICH APPEALED:               GRENADA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                 BRIAN AUSTIN HINTON
                                         AMANDA LEIGH MYERS
ATTORNEYS FOR APPELLEE:                  S. MARK WANN
                                         KELLY HOLLINGSWORTH STRINGER
NATURE OF THE CASE:                      CIVIL - MEDICAL MALPRACTICE
TRIAL COURT DISPOSITION:                 GRANTED SUMMARY JUDGMENT IN
                                         FAVOR OF APPELLEE AND SANCTIONED
                                         APPELLANT AND HER COUNSEL $12,000
                                         FOR VIOLATING THE MISSISSIPPI
                                         LITIGATION ACCOUNTABILITY ACT
DISPOSITION:                             AFFIRMED IN PART; REVERSED AND
                                         RENDERED IN PART - 12/01/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE IRVING, P.J., MAXWELL AND FAIR, JJ.

      MAXWELL, J., FOR THE COURT:

¶1.   A medical-malpractice claim 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[.]”1 Donna Waldrup filed her wrongful-death claim based on Stephanie

Eads’s medical negligence more than two years after Waldrup’s mother died. Waldrup

claimed the four-month delay in her mother’s official autopsy report tolled the two-year

statute of limitations, making her claim timely. But the undisputed evidence shows Waldrup

and her siblings suspected Eads had committed medical negligence the day their mother died.

And the autopsy report revealed nothing about Eads’s involvement in their mother’s care they

had not already known. So the statute of limitations was not tolled by the pending autopsy

report.

¶2.       Because the two-year limitations period had run by the time Waldrup filed her

complaint, we affirm the dismissal of this claim on summary judgment.

¶3.       But we do not affirm the award of sanctions based on Waldrup’s untimely filing.

While Waldup’s claim was ultimately unsuccessful, it cannot be said to have had “no hope

of success.”2 We thus reverse the award of sanctions and render a judgment in Waldrup’s

favor on that issue.

                                 Facts and Procedural History

          I.       Mary Lindsey’s Death

¶4.       When Lindsey died, she was a sixty-four-year-old patient at Grace Health and Rehab

          1
              Miss. Code Ann. § 15-1-36(2) (Rev. 2012).
          2
        Miller v. Provident Advert. & Mktg., Inc., 155 So. 3d 181, 196 (¶44) (Miss. Ct. App.
2014) (quoting Stevens v. Lake, 615 So. 2d 1177, 1184 (Miss. 1993)) (defining a “frivolous”
claim as one in which, “objectively speaking, the pleader or movant had no hope of
success”).

                                               2
of Grenada. She suffered from a condition that had left her paralyzed from the waist down.

She complained of constant pain and also struggled with constipation. According to her

daughter, Waldrup, an x-ray earlier that year had shown Lindsey “was full of poop.” Her son

Tracey Smith also testified Lindsey’s stomach was noticeably swollen. Apparently, Lindsey

had been hospitalized at least once earlier in the year.

¶5.      Waldrup lived in Grenada and was primarily responsible for her mother’s care. In the

months leading up to Lindsey’s death, Waldrup expressed dissatisfaction with the care Grace

provided. She also looked into moving Lindsey to a nursing home in Carthage, where Tracey

lived.

¶6.      But before Waldrup could move her mother, on November 6, 2010, Lindsey began to

ask for an ambulance to take her to the hospital. But Grace did not take her. Lindsey called

Waldrup crying, saying she wanted to go to the hospital. Lindsey threw up in the middle of

the night. And late the next morning, November 7, 2010, she died.

¶7.      The deputy coroner was called to the nursing home. The nurse on duty’s notes

showed the coroner told her no autopsy would be performed because the county would not

pay for one in this situation. So the coroner left. But when Waldrup and other family

members arrived at Grace, the coroner returned. The family asked to speak with him outside

the presence of Grace administrators and staff. The family told the coroner Lindsey’s death

was “mysterious” and insisted an autopsy should be performed. While the coroner later

testified the decision to perform an autopsy was his alone, to satisfy himself of the cause of


                                              3
death, he put on the autopsy-request form “[t]he family of deceased are troubled about the

care that was given to [the] deceased.”

¶8.    The autopsy was performed six days later, on November 13, 2010. But the final

autopsy report was not signed until March 17, 2011. The medical examiner determined the

cause of death was septic peritonitis, or “sepsis.” Apparently, Lindsey’s colon had perforated

and fecal matter had seeped into her gut, causing the deadly infection.

       II.    Waldrup’s Wrongful-Death Suit

¶9.    The statute of limitations for a wrongful-death suit is governed by the underlying legal

theory, in this case medical malpractice. The statute of limitations for medical malpractice

is two years. Miss. Code Ann. § 15-1-36(2) (Rev. 2012). But no action “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. § 15-1-36(15).

¶10.   On October 7, 2012, a year and eleven months after Lindsey’s death, Waldrup, as

representative of Lindsey’s wrongful-death beneficiaries, sent the mandatory notice-of-suit

letter to Dr. Joseph Roberts—the physician primarily responsible for Lindsey’s care at Grace.

By statute, this notice tolled the running of the statute of limitations for sixty days. Miss.

Code Ann. § 15-1-36(15) (“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.”). And on December 7, 2012, Waldrup filed a wrongful-death suit


                                              4
against Dr. Roberts.

¶11.   Five days later, on December 12, 2012, Waldrup sent a notice-of-suit letter to

Eads—the nurse practitioner responsible for Lindsey’s care. The same day, Waldrup

amended her complaint against Dr. Roberts to add Eads as a defendant. (Waldrup later

testified she had always intended to name Eads as a defendant, along with Dr. Roberts. And

the fact Eads was not given notice in October 2012 and named in the complaint filed on

December 7, 2012, was an oversight or mistake.)

¶12.   In response, Eads’s attorney sent Waldrup’s counsel a letter on January 15, 2013. This

letter informed Waldrup’s counsel that the two-year statute of limitations had started to run

against Eads on November 7, 2010—the day Lindsey died. And because Waldrup had failed

to send the mandatory sixty-day presuit notice before the statute of limitations expired,

Waldrup’s complaint against Eads was untimely.

¶13.   Waldrup’s counsel replied by arguing the earliest the limitations period began to run

was March 17, 2011—the date the autopsy report was signed. So the statute had not yet run.

Counsel’s letter dated February 12, 2013, asserted, “As of today’s date, we have filed suit

against your client in Grenada Circuit Court.” But this was incorrect, since the suit was filed

two months earlier.

       III.   Motion to Dismiss

¶14.   Eads waived service of process in late March 2013. She then responded to the

complaint with a motion to dismiss. This motion urged the complaint was filed outside the


                                              5
two-year statute of limitations and had to be dismissed. Alternatively, the complaint

must—at a minimum—be dismissed without prejudice for failure to comply with the sixty-

day presuit-notice requirement of section 15-1-36(15).

¶15.   While this motion was being briefed and argued before the circuit court, both sides

submitted evidence outside the pleadings. And the circuit court ruled the motion to dismiss

had thus converted into a motion for summary judgment. Waldrup’s counsel suggested that

discovery was necessary to determine when the family reasonably discovered medical

negligence had occurred. Because the circuit court found, from the face of the complaint,

that it could not be dismissed on the statute-of-limitations issue, the court denied the motion

to dismiss and allowed Waldrup to proceed with discovery.

       IV.    Motion for Summary Judgment

¶16.   Six and a half months later, in October 2013, Eads renewed her motion to dismiss and,

alternatively, filed for summary judgment. She also filed a motion for attorney’s fees and

expenses under the Mississippi Litigation Accountability Act (MLAA). Miss. Code Ann. §

11-55-5(1) (Rev. 2012). This time, the circuit court granted her motion.

              A.     Statute of Limitations

¶17.   In the court’s opinion, “Lindsey’s family knew or should have known with reasonable

diligence of the neglect at the time of Lindsey’s death.” So under section 15-1-36(2), the

statute of limitations ran on November 7, 2012, two years after Lindsey’s death.

¶18.   The circuit court rejected Waldrup’s argument that it was only after the autopsy results


                                              6
were released that the family discovered Eads’s neglect. The circuit court relied on evidence

that Waldrup was already concerned prior to Lindsey’s death that the nurses would not call

for an ambulance to take Lindsey to the hospital. The circuit court also found no autopsy

would have been ordered had the family not voiced its concerns. Lindsey’s son Tracey, in

his deposition, testified to the coroner’s reluctance to order an autopsy. But the family

insisted Lindsey “wasn’t supposed to die” and something was wrong with her death.

¶19.   Tracey also testified about how the family was already unsatisfied with Grace’s care

and had considered transferring Lindsey to another home. Significantly, Tracey revealed that

his family started talking about filing a lawsuit against Eads within a few weeks after Lindsey

died. Lindsey’s other son, Guy Smith, confirmed in his deposition that the family had wanted

to move Lindsey out of Grace before she died because the nurses were not taking care of her.

Guy also maintained the family was criticizing Eads’s supposed lack of care within days of

Lindsey’s death.

¶20.   Relying on Sutherland v. Estate of Ritter, 959 So. 2d 1004, 1009 (¶15) (Miss. 2007),

the circuit court determined there was enough suspicion of negligent care for Lindsey’s

family to have discovered the alleged negligence by the time of her death. Before her death,

the family already thought Lindsey was being neglected. They also knew she suffered from

constipation. The morning of her death, they also knew Lindsey had been denied her request

to go to the hospital. Further, the autopsy did not lead to their suspecting negligence—it was

actually the result of their suspicions. And according to the circuit judge, “nothing in the


                                              7
autopsy report provided information that Stephanie Eads should be a named party that was

not known by Lindsey’s family prior to or immediately following Lindsey’s death.”

¶21.   Thus, the circuit court granted summary judgment in Eads’s favor on the statute of

limitations running.

               B.      Statutory Notice Requirement

¶22.   Alternatively, the circuit court found dismissal without prejudice would be

appropriate. Indisputably, Waldrup failed to comply with section 15-1-36(15)’s sixty-day

presuit-notice requirement because she began her lawsuit against Eads the very same day she

gave notice.

               C.      Litigation Accountability Act

¶23.   Finally, the circuit court granted Eads’s motion for attorney’s fees and costs. Eads

pointed to the fact Waldrup relied on the autopsy to toll the running of the statute of

limitations. But nothing in the report supported her discovery-rule argument. Instead, what

the depositions showed is that Waldrup planned to sue Eads months before the report was

signed.

¶24.   Section 11-55-5(1) allows courts to award attorney’s fees as sanctions where an action

is filed “without substantial justification”—“mean[ing] that it is frivolous, groundless in fact

or in law.” Miss. Code Ann. § 11-55-3(a) (Rev. 2012). The court found Waldrup’s action

against Eads was frivolous because it was filed after the statute of limitations had expired.

Further, Waldrup was notified by Eads’s attorney as early as January 15, 2013, about this


                                               8
issue and the fact Eads would pursue sanctions if the complaint was not dropped. Because

Waldrup persisted in her complaint against Eads, the circuit court sanctioned her and her

attorney. The judge awarded Eads “all attorney fees and litigation costs that she incurred

from and after January 15, 2013.”

¶25.   According to the bills submitted to the circuit court, Eads incurred $89,572.50 in

attorney’s fees and $17,276.84 in litigation expenses. The circuit court awarded only eleven

percent of that amount, or $12,000, as sanctions.

       V.     Appeal

¶26.   The circuit court certified its dismissal of Eads and award of sanctions as a final

judgment. Waldrup timely appealed the dismissal—both with prejudice for failure to file

within the statute of limitations and without prejudice for not giving proper presuit notice.

She also appealed the sanctions award.

¶27.   Eads cross-appealed the amount of sanctions, claiming the circuit court arbitrarily

slashed the amount of attorney’s fees and expenses. In addition to asking for the full amount

of her lower-court bills—$106,849.34—she asks this court to further sanction Waldrup on

appeal and award additional attorney’s fees.

                                         Discussion

¶28.   Under Mississippi law, Waldrup’s suit against Eads had to be dismissed. But the

question we must decide is whether the circuit judge should have dismissed it with or without

prejudice.


                                               9
¶29.   Waldrup filed her presuit notice the same day she filed her suit.3 So even if Waldrup’s

complaint was timely, it was obviously not preceded by the mandatory sixty days’ presuit

notice. See Miss. Code Ann. § 15-1-36(15). The Mississippi Supreme Court “requires strict

compliance with Section 15-1-36(15).” Fowler v. White, 85 So. 3d 287, 291 (¶13) (Miss.

2012). Thus, at a minimum, Waldrup’s “failure to satisfy the presuit-notice requirement

mandates dismissal without prejudice.” Id. (emphasis added).

¶30.   The circuit judge, however, found Waldrup’s complaint against Eads was not timely.

We review the circuit court’s grant of summary judgment based on the statute of limitations

de novo. Sutherland, 959 So. 2d at 1007 (¶8). And our de novo review leads us to the same

conclusion—the two-year window to file a medical-malpractice suit began November 7,

2010, and was not tolled by section 15-1-36(2)’s discovery rule. Thus, we affirm the

dismissal of Waldrup’s claims against Eads with prejudice.

       I.     Statute of Limitations for Medical Malpractice

¶31.   While most negligence-based claims enjoy a three-year statute of limitations, actions

for medical negligence have a shorter limitations period of two years. Miss. Code Ann. § 15-


       3
         In a attempt to avoid dismissal, Waldrup tries to argue she did in fact comply with
the presuit-notice requirement because the lawsuit against Eads did not actually “begin” until
Waldrup served Eads with process more than sixty days later. As support, Waldrup cites
Mississippi Rule of Civil Procedure 4, which governs service of process. But “[i]n the
Twenty-First Century, the commencement of a lawsuit is governed by Mississippi Rule of
Civil Procedure 3(a), which states that a civil action is commenced by filing a complaint
with the court.” Arceo v. Tolliver, 19 So. 3d 67, 74 (¶32) (Miss. 2009). So under Rule 3(a),
Waldrup’s lawsuit against Eads began December 12, 2012—the same day she sent Eads
notice.

                                             10
1-36(2). But the statute has a built-in discovery rule: The two-year period begins “from the

date the alleged act, omission or neglect shall or with reasonable diligence might have been

first known or discovered.” Id.

¶32.   “Application of the discovery rule is a fact-intensive process.” Huss v. Gayden, 991

So. 2d 162, 166 (¶6) (Miss. 2008). For this reason, there are no clear categories for when the

discovery rule tolls the statute of limitations and when it does not. Take, for example,

medical records. In one case, the supreme court held it was not reasonable for a wife to

discover medical negligence until she received her husband’s medical records months after

his death. Sarris v. Smith, 782 So. 2d 721, 724 (¶11) (Miss. 2001). But in another, the court

held the patient knew there had been acts of medical negligence before her medical records

were obtained, so the statute was not tolled. Gray v. Univ. of Miss. Sch. of Med., 996 So. 2d

75, 80 (¶15) (Miss. 2008). Another example is expert medical opinions. In one case the

court held that, while the patient and her husband knew of her injuries, they could not have

reasonably known the hospital was negligent until a medical expert told them a year later.

So the statute was tolled. Barnes v. Singing Riv. Hosp. Sys., 733 So. 2d 199, 206 (¶20)

(Miss. 1999). But the court held in another case that the mother of a baby who died in utero

had enough information to suspect negligence before she even left the hospital. So having

an expert give his opinion two years later that her doctor’s negligence led to her baby’s death

did not toll the running of the statute of limitations. Jackson Clinic for Women, P.A. v.

Henley, 965 So. 2d 643, 650 (¶¶14-15) (Miss. 2007).


                                              11
¶33.   While these cases had differing outcomes, they each had the same focus—when

should the plaintiff, exercising reasonable diligence, have first discovered the negligence,

rather than the injury. Gray, 996 So. 2d at 80 (¶15) (“The facts of this case do not

sufficiently demonstrate that Gray learned of the negligence after receiving the medical

records and obtaining an expert opinion.”); Henley, 965 So. 2d at 650 (¶15) (“Moore knew

that negligent conduct might have occurred . . . while still in the hospital, shortly after her

surgery[.]”); Sarris, 782 So. 2d at 723 (¶8) (“The resolution of this issue . . . turns on when

Sarris ‘discovered the wrongful conduct within the meaning of the statute.’”); Barnes, 733

So. 2d at 206 (¶20) (“While the Barneses may have been aware of Lisa’s injuries before the

one year time limit was up, they could not reasonably have known that Singing River was

responsible for those injuries until their medical expert notified them of the possible

negligence[.]”). This is because section 15-1-36(2)’s discovery rule is different than the

latent-injury provision in the general statute of limitations. Sutherland, 959 So. 2d at 1008-

09 (¶¶11-12) (comparing Miss. Code Ann. § 15-1-36(2) with Miss. Code Ann. § 15-1-49(2)

(Rev. 2012)). In medical-malpractice actions, “[t]he inquiry does not center on a latent

injury, but rather on ‘the date the alleged act, omission or neglect shall or with reasonable

diligence might have been first known or discovered.’” Id. at 1008 (¶12) (quoting Miss.

Code Ann. § 15-1-36(2)). “Thus, in medical negligence cases, we must focus our inquiry on

when a plaintiff, exercising reasonable diligence, should have first discovered the negligence,

rather than the injury.” Id. (emphasis added); see also Holaday v. Moore, 169 So. 3d 847,


                                              12
851 (¶12) (Miss. 2015) (finding a genuine issue of material fact whether the plaintiff did not

discover a second doctor’s negligent involvement in his care until four years after he had

sued the first doctor for his injuries).

¶34.   Waldrup would have us focus on when she and her family received the official

autopsy report on how Lindsey died, which was four months after Lindsey’s death. But as

mentioned above, the statute is not automatically tolled while waiting on an autopsy report,

medical records, or expert opinion. See Gray, 996 So. 2d at 80 (¶15); Henley, 965 So. 2d at

650 (¶¶14-15). Instead, we must focus on whether the date of the autopsy report was the first

time Waldrup, having exercised reasonable diligence, should have discovered Eads had been

medically negligent. See Sutherland, 959 So. 2d at 1008 (¶12).

¶35.   Waldrup asserts she could not have reasonably discovered Eads’s alleged medical

negligence until she learned in March 2011 her mother’s official cause of death. But this

assertion is not supported by the evidence. What the evidence shows is that even before their

mother’s death, she and her siblings were dissatisfied with the nursing care provided at

Grace. Hours before Lindsey died, she called Waldrup crying because the nurses would not

send her to the hospital. As soon as Lindsey died, Waldrup and other family members

demanded answers and an autopsy. And months before the autopsy report was officially

signed, they were already talking about suing Eads. Moreover, Waldrup sued Lindsey’s

doctor within two years of her death and admitted that it was an oversight not to sue Eads at

the same time. These facts indisputably show that, by the time of Lindsey’s death, Waldrup’s


                                             13
“suspicions and actions thereon . . . were enough to satisfy the statutory requirement of

discovery of the alleged medical negligence on the part of [Eads].” Sutherland, 959 So. 2d

at 1009 (¶15); see also Wayne Gen. Hosp. v. Hayes, 868 So. 2d 997, 1001 (¶17) (Miss. 2004)

(finding “at [the] time of [their daughter’s] death, [the parents] had enough information such

that they knew or reasonably should have known that some negligent conduct had occurred,

even it they did not know with certainty that the conduct was negligent as a matter of law”).

¶36.   Like the circuit court, we find this case is factually similar to Sutherland. There,

though Sutherland had experienced severe negative side affects from a drug he was

prescribed, he was not diagnosed with a permanent condition until a year later. Sutherland,

959 So. 2d at 1005-06 (¶¶2-4). He filed a medical-negligence suit against his prescribing

physician two years after his diagnosis, which the supreme court found untimely. Id. at 1006

(¶5), 1009-10 (¶17). Focusing on when Sutherland “should have first discovered the

negligence, rather than the injury,” the supreme court found Sutherland’s own immediate

suspicions and pre-diagnosis actions to combat the drug’s effects were enough to trigger the

two-year statute of limitations. Id. at 1008-09 (¶¶12-16). So Sutherland could not rely on

the later diagnosis to toll the statute of limitations.

¶37.   Turning to our case, we find Waldrup similarly could not rely on the later autopsy

report to keep the two-year limitations period from beginning. Like Sutherland, whose

diagnosis confirmed his suspicions that the drug had been harmful, Lindsey’s autopsy report

confirmed Waldrup’s suspicions that Eads’s negligence played a part in her mother’s death.


                                                14
Yet it did not reveal any act, omission, or neglect by Eads that would not have been otherwise

known or suspected.

¶38.   This case is also similar to Henley. There, a women who was thirty-four weeks

pregnant went to her obstetrician complaining of abdominal pain. The doctor sent her home

with a Tylenol. She returned with even more severe pain. Henley, 965 So. 2d at 644 (¶2).

She was hospitalized. The next morning, a sonogram revealed the baby had died in the

womb. The obstetrician performed a C-section. While in surgery, the doctor had to remove

most of her small intestine, which had twisted. Apparently, it was this twisted intestine that

had cut off the blood supply to her womb, killing her baby. Id. at (¶3). Two and a half years

later, the mother went to Mayo Clinic due to her ongoing bowel problems. While there, the

mother claimed she “was alerted to the fact that [her] treatment [two and a half years earlier]

may have been the cause of the death of [her] baby and of [her] short bowel syndrome.” Id.

at 646 (¶8).

¶39.   Seven months after leaving Mayo Clinic (three years after the C-section and intestinal

surgery), the mother sued her obstetrician for the wrongful death of her baby. Id. at 647 (¶9).

The supreme court held the mother’s suit was untimely. Id. at 650 (¶15). The mother had

“believed that some type of negligence had occurred while she was in the hospital,” telling

her sister, a psychiatrist, “something was wrong. Something was real wrong.’” Id. She

“then proceeded to hire an attorney, obtain her medical records, and make an outline of all

of the acts that she deemed negligent”—all before she went to Mayo Clinic. Id. Thus, her


                                              15
“own suspicions regarding possible negligent conduct start[ed] the clock running” when she

left the hospital after her baby’s death and surgery. Id.

¶40.   Waldrup tries to distinguish herself from the mother in Henley, making much of the

fact that neither she nor anyone else in her family is a nurse or doctor. So their education and

training would not lead them to suspect anything was wrong with their mother’s care. But

despite no medical background, Lindsey’s family undisputedly knew something was wrong

the day Lindsey died. They knew Lindsey’s request to go to the hospital was refused. And

even a layman would suspect negligence if someone begged for an ambulance, was refused

one, and died hours later. See Wright v. Quesnel, 876 So. 2d 362, 367 (¶14) (Miss. 2004)

(finding the mother of a baby that died in the womb “had enough information at the time of

death” to know negligence occurred because she had been to her doctor twice but received

no treatment). Here, just as in Henley, Lindsey’s family told the coroner right after her death

that Lindsey’s death was “mysterious,” that they were troubled about the medical care

provided to Lindsey, and that an autopsy had to be performed. We find these suspicions

started the two-year clock to file suit on November 7, 2010. See id. So the statute of

limitations had run by the time she simultaneously filed her presuit notice and lawsuit on

December 12, 2012.

¶41.   In affirming the grant of summary judgment based on the running of the statute of

limitations, we are mindful the “[a]pplication of the discovery rule is a fact-intensive

process.” Huss, 991 So. 2d at 166 (¶6). And “when a valid factual dispute exists, the issue


                                              16
[must] be settled by the finder of fact, a jury.” Id.; see, e.g., Holaday, 169 So. 3d at 852 (¶16)

(finding summary judgment was not appropriate because “a genuine issue of material fact

remained on the question of whether Dr. Holaday treated Mr. Moore, or participated in his

treatment”). But here there is no valid factual dispute. From their own testimony, Lindsey’s

family believed Eads’s negligence played a part in her death before the autopsy report was

signed. Moreover, an autopsy was performed based on their suspicions. So the autopsy

report was not when their suspicions first began. Thus, the circuit judge correctly held the

discovery rule did not toll the statute of limitations for the four months they were waiting on

the report. See Huss, 991 So. 2d at 167 (¶9) (“[A]n individual may not take shelter in the

‘discovery rule’ when reasonable minds could not differ that the plaintiff possessed sufficient

information to bring a claim.”).

       II.     Sanctions

¶42.   That said, we do not find Waldrup’s attempt to avoid dismissal by asserting the

discovery rule was sanctionable under the MLAA. See Miss. Code Ann. § 11-55-5(1).

¶43.   Under this section, if the court—on its own motion or the motion of any party—“finds

that an attorney or party brought an action, or asserted any claim or defense, that is without

substantial justification, or that the action, or any claim or defense asserted, was interposed

for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the

proceedings by other improper conduct,” then “the court shall award, as part of its judgment

and in addition to any other costs otherwise assessed, reasonable attorney’s fees and costs.”


                                               17
Miss. Code Ann. § 11-55-5(1). The award may be against the party or attorney or both. Id.

¶44.   Here, the circuit court found Waldrup’s untimely claim against Eads was “without

substantial justification.” Section 11-55-3 defines “without substantial justification” as

“frivolous, groundless in fact or in law, or vexatious.” Miss. Code Ann. § 11-55-3(a). The

term “frivolous” in the MLAA has the same meaning as in the Civil Procedure Rule 11 and

Appellate Rule 38 context. M.R.C.P. 11; M.R.A.P. 38; Miller v. Provident Advert. & Mktg.,

Inc., 155 So. 3d 181, 196 (¶44) (Miss. Ct. App. 2014) (using same test for MLAA and Rule

11); Pickett v. Gallagher, 159 So. 3d 587, 592 (¶17) (Miss. Ct. App. 2014) (using same test

for Rule 38 and Rule 11). “A claim is frivolous only when, objectively speaking, the pleader

or movant had no hope of success.” Miller, 155 So. 3d at 196 (¶44) (citation omitted).

¶45.   In Miller, a Tennessee resident took advantage of Mississippi’s long-arm statute to

sue a Florida resident for alienation of affection—a cause of action not recognized in

Tennessee. The circuit court dismissed the action for lack of personal jurisdiction. The court

also awarded sanctions under the MLAA. This court reversed the dismissal. But then it went

on to note that “even if we were to affirm dismissal of the case for lack of jurisdiction, we

would nonetheless reverse and render the award of attorney’s fees.” Miller, 155 So. 3d at

196 (¶44). “The trial court concluded that the long-arm statute was satisfied in this case.”

Id. at (¶45). And “[i]t was only when conducting the ‘fact intensive’ inquiry as to the

minimum contacts . . . that any problem arose.” Id. So because dismissal followed after a

fact-intensive inquiry, this court could not say the claim had no hope of success.


                                             18
¶46.   Translating Miller’s logic to this case, we find, because the “[a]pplication of the

discovery rule is a fact-intensive process,”4 Waldrup’s discovery-rule argument, objectively

speaking, was not frivolous. It was only after the fact-intensive inquiry at the summary-

judgment stage that the circuit court concluded there was no genuine issue of material fact

in applying the discovery rule. So we find it was an abuse of discretion to deem Waldrup’s

claim as having no hope of success. See id. at (¶44) (applying abuse-of-discretion standard

to award of sanctions under MLAA). In Pickett, we affirmed the grant of summary judgment

based on the running of the statute of limitations. But we refused to award sanctions because

the plaintiff had “presented an arguable defense to the statute of limitations.” Pickett, 159

So. 3d at 592 (¶18). In Stevens, the supreme court made a similar finding. “[D]espite the

weakness of their arguments” as to why the statute of limitations had not run, the supreme

court could not say the legal-malpractice claim “was clearly barred by the applicable statute

of limitations.” Stevens, 615 So. 2d at 1185.

¶47.   Here, the application of the discovery rule was an arguable, albeit weak, defense to

Eads’s statute-of-limitations argument. And we find Waldrup’s reliance on the discovery

rule, though unsuccessful, is not sanctionable. We reverse the sanctions award and render

a judgment in favor of Waldrup on this issue.

¶48.   Consequently, we need not address Eads’s argument on cross-appeal that the circuit

court abused its discretion when setting the amount of the award at $12,000.


       4
           Huss, 991 So. 2d at 166 (¶6).

                                             19
¶49. THE JUDGMENT OF THE GRENADA COUNTY CIRCUIT COURT IS
AFFIRMED IN PART AND REVERSED AND RENDERED IN PART. ALL COSTS
OF THIS APPEAL ARE DIVIDED EQUALLY BETWEEN THE APPELLANT /
CROSS-APPELLEE AND THE APPELLEE / CROSS-APPELLANT.

    LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, FAIR, JAMES AND WILSON, JJ.,
CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT
SEPARATE WRITTEN OPINION. CARLTON, J., CONCURS IN RESULT ONLY
WITHOUT SEPARATE WRITTEN OPINION.




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