                   IN THE SUPREME COURT OF MISSISSIPPI

                              NO. 2010-CA-00490-SCT

RICHARD COMPERE AND JAMES A. BOBO

v.

ST. DOMINIC JACKSON MEMORIAL HOSPITAL
AND BRYAN LANTRIP, M.D.


DATE OF JUDGMENT:                        03/11/2010
TRIAL JUDGE:                             HON. W. SWAN YERGER
COURT FROM WHICH APPEALED:               HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS:                 JAMES A. BOBO
ATTORNEYS FOR APPELLEES:                 LANE W. STAINES
                                         SHARON F. BRIDGES
                                         JONATHAN R. WERNE
                                         J. LERAY MCNAMARA
                                         STEPHANIE C. EDGAR
NATURE OF THE CASE:                      CIVIL - MEDICAL MALPRACTICE
DISPOSITION:                             REVERSED AND REMANDED - 09/29/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




      BEFORE DICKINSON, P.J., LAMAR AND KITCHENS, JJ.

      LAMAR, JUSTICE, FOR THE COURT:

¶1.   Richard Compere appeals the trial court’s dismissal with prejudice and imposition of

monetary sanctions for his filing a second medical-malpractice action against Dr. Bryan

Lantrip and St. Dominic-Jackson Memorial Hospital. The Hinds County Circuit Court

imposed these sanctions because Compere previously had filed the same action, and it was

pending at the time Compere filed his second complaint. We find the trial court erred in
dismissing the second complaint with prejudice and imposing monetary sanctions.

Therefore, we reverse and remand for further proceedings.

                                             Facts

¶2.    Compere underwent a fluoroscopically guided lumbar puncture at St. Dominic to treat

his headaches.      This procedure was performed by Dr. Lantrip, who dictated a report

concerning the procedure. Compere avers that the report contained an error, and that he

underwent additional, unnecessary treatment because of it. Once Compere learned of the

error, he mailed notice as required by Mississippi Code Section 15-1-36(15) to the

defendants of his intent to file a malpractice action.1 This notice was dated January 6, 2009,

but was not mailed until January 8, 2009. Compere filed his first complaint on March 4,

2009, and the action was assigned to Judge W. Swan Yerger.

¶3.    It is undisputed that Compere failed to wait the sixty days required by Section 15-1-

36(15) before he filed the first complaint.2 Due to that failure, the defendants moved for

summary judgment.3 Compere also filed a motion for partial summary judgment, arguing

that he had complied substantially with the sixty-day notice period, and that the notice

requirement violated the state and federal constitutions.



       1
        Before the trial court, St. Dominic argued Compere had failed to provide it with any
presuit notice. On that issue, the trial court ruled “[t]here is an issue of fact[.]” St. Dominic
did not cross-appeal that finding.
       2
           See Miss. Code Ann. § 15-1-36 (15) (Rev. 2003).
       3
        This Court has previously found that a “failure to comply with Section 15-1-36(15)
does not reach the merits of a cause of action[,]” and therefore the proper motion is to
request dismissal, not summary judgment. Brewer v. Wiltcher, 22 So. 3d 1188, 1190 (Miss.
2009).

                                               2
¶4.    After considering the written motions and oral arguments,4 the trial court took the

matter under advisement. Prior to the court rendering a decision, Compere filed a second,

almost identical complaint with the same court on July 1, 2009. Judge Yerger became aware

of this second lawsuit, which had been assigned to Judge Tomie Green. Judge Green

transferred the lawsuit to Judge Yerger, who consolidated the two actions. Judge Yerger then

dismissed the first complaint without prejudice under this Court’s recent decision, Price v.

Clark,5 for Compere’s failure to wait sixty days before filing the first complaint. Judge

Yerger relied upon the doctrine of priority jurisdiction and dismissed the second action with

prejudice, finding it was an “improperly filed action.”

¶5.    Judge Yerger also assessed monetary sanctions 6 against Compere’s counsel, Jim

Bobo, finding the second complaint was “frivolous” and “without substantial justification,”

and that it was a “flagrant violation of long-standing Mississippi law.” He found the

defendants had sustained unnecessary costs in defending the second action, and imposed

sanctions under his inherent authority, Rule 11 of the Mississippi Rules of Civil Procedure,

and the Litigation Accountability Act of 1988 (Mississippi Code Section 11-55-5). Judge

Yerger also ruled that this Court already had rejected Compere’s constitutional arguments

in previous decisions.




       4
           The record does not contain a transcript of the hearing.
       5
           Price v. Clark, 21 So. 3d 509 (Miss. 2009).
       6
        Judge Yerger ordered Bobo to pay $1,711.25 to St. Dominic and $1,827.65 to Dr.
Lantrip. Bobo does not dispute the amount of sanctions, but argues the trial court had no
authority to impose them.

                                                3
                                              Discussion

¶6.        This Court reviews questions of law de novo,7 and applies an abuse-of-discretion

standard to an award of sanctions.8 Mississippi Code Section 15-1-36(15) provides 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.” 9 But “a properly served complaint – albeit a complaint that

is wanting of proper pre-suit notice – should still serve to toll the statute of limitations until

there is a ruling from the trial court.” 10

¶7.    Compere admits that he failed to wait sixty days before filing his first complaint on

March 4, 2009, and he does not appeal the trial court’s dismissal without prejudice of that

complaint. However, Compere argues that the trial court erred in dismissing his second

complaint with prejudice and in imposing monetary sanctions.11              This Court agrees.

Compere filed the second complaint on July 9, 2009, well after providing sixty days’ notice.

Thus, assuming for purposes of this appeal that Compere sent actual notice,12 he waited the

sixty days required by Section 15-1-36(15) before filing the second lawsuit.




       7
           Dunn v. Yager, 58 So. 3d 1171, 1197 (Miss. 2011).
       8
           In re Spencer, 985 So. 2d 330, 337 (Miss. 2008).
       9
           Miss. Code Ann. § 15-1-36 (15) (Rev. 2003) (emphasis added).
       10
            Price, 21 So. 3d at 522.
       11
      Compere also argues that Mississippi Code Section 15-1-36(15) is unconstitutional.
However, that issue is moot under our holding.
       12
            See footnote 1 supra.

                                                  4
¶8.    While the trial court relied upon the doctrine of priority jurisdiction to support its

ruling, that doctrine is inapplicable. In explaining priority jurisdiction, this Court has ruled:

       It is fundamental that a plaintiff is not authorized simply to ignore a prior
       action and bring a second, independent action on the same state of facts while
       the original action is pending. Hence a second action based on the same cause
       will generally be abated where there is a prior action pending in a court of
       competent jurisdiction within the same state or jurisdictional territory, between
       the same parties, involving the same or substantially the same subject matter
       and cause of action, and in which prior action the rights of the parties may be
       determined and adjudged.13

¶9.    Priority jurisdiction typically applies when the same lawsuit has been filed in two

different courts, not in the same court.14    More importantly, that doctrine presupposes a

pending action that the plaintiff can proceed upon and obtain “adequate relief.” 15 That is not

the case with Compere’s first action, since he failed to wait the required sixty days. Even if

applicable, Dr. Lantrip and St. Dominic fail to argue or cite any authority that a lawsuit

should be dismissed with prejudice and with monetary sanctions under priority jurisdiction.

Because the trial court erred in dismissing the second action, it abused its discretion by

awarding sanctions and finding the second complaint “frivolous,” “without substantial

justification,” and a “flagrant violation of long-standing Mississippi law.”



       13
        Cf. Harrison Co. Dev. Comm’n v. Daniels Real Estate, Inc., 880 So. 2d 272, 276
(Miss. 2004) (quoting Lee v. Lee, 232 So. 2d 370, 373 (Miss. 1970)), overruled on other
grounds by City of Jackson v. Estate of Stewart ex rel Womack, 908 So. 2d 703, 711 (Miss.
2005).
       14
            See McCleave v. McCleave, 491 So. 2d 522, 523 (Miss. 1986).
       15
          See Abiaca Drainage Dist. of Leflore, Holmes, & Carroll Counties. v. Albert Theis
& Sons, 185 Miss. 110, 187 So. 200 (1939) (“The pendency of a prior suit between the same
litigants and involving the same subject matter constitutes a bar unless adequate relief is not
attainable in the prior suit.”) (emphasis added)).

                                               5
                                       Conclusion

¶10.   Compere waited the required sixty days before refiling the second medical-

malpractice action. So the trial court should have retained the second complaint instead of

dismissing it with prejudice and imposing monetary sanctions.

¶11.   REVERSED AND REMANDED.

    WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH,
KITCHENS, PIERCE AND KING, JJ., CONCUR. CHANDLER, J., NOT
PARTICIPATING.




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