                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2004-IA-02360-SCT

UNIVERSITY OF MISSISSIPPI MEDICAL
CENTER

v.

ANGELA EASTERLING AS PERSONAL
REPRESENTATIVE OF THE WRONGFUL
DEATH BENEFICIARY OF WADREANNA
QUADASHSEA MAGEE


DATE OF JUDGMENT:                        11/3/2004
TRIAL JUDGE:                             HON. BOBBY BURT DELAUGHTER
COURT FROM WHICH APPEALED:               HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                 SENITH C. TIPTON
                                         MELANIE MORANO McQUILLEN
ATTORNEYS FOR APPELLEE:                  MARY JEANNE GIBSON
                                         EDWARD GIBSON
                                         CHARLES E. GIBSON
NATURE OF THE CASE:                      CIVIL - TORTS-OTHER THAN PERSONAL
                                         INJURY & PROPERTY DAMAGE
DISPOSITION:                             REVERSED AND RENDERED - 04/06/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


      EN BANC.

      SMITH, CHIEF JUSTICE, FOR THE COURT:

¶1.   This case is before this Court on appeal from the Circuit Court of the First Judicial

District of Hinds County, Mississippi, by the defendant University of Mississippi Medical

Center (“UMMC”). UMMC seeks a review of the trial court’s order denying its motion for

summary judgment. UMMC alleges plaintiff Angela Easterling (“Easterling”), mother and
personal representative of Wadreanna Quadashsea Magee (“Wadreanna”), failed to comply

with Miss. Code Ann. Section 11-46-11(1) (Rev. 2002), when Easterling failed to send notice

to UMMC ninety days before filing suit. In the alternative, UMMC asserts Easterling failed

to provide the appropriate claims within her notice as prescribed under section 11-46-11(2).

¶2.    We adhere to our controlling cases of Davis v. Hoss, 869 So. 2d 397 (Miss. 2004),

and Wright v. Quesnel, 876 So. 2d 362 (Miss. 2004), and accordingly find that Easterling

failed to follow the ninety-day notice rule which this Court strictly enforces. We reverse the

trial court’s decision and render in favor of UMMC.

                                          FACTS

¶3.    Wadreanna was born twelve weeks premature on June 26, 2002. Wadreanna died

twelve days later and just after UMMC performed an exploratory laparotomy procedure. On

July 10, 2002, during an open casket funeral, Easterling saw for the first time what was

supposed to be the body of her dead baby. Although the wristband on the infant’s wrist

identified the body as that of Wadreanna, Easterling insisted the body in the casket was not

her daughter.    Nevertheless, after her friends convinced Easterling the body was

Wadreanna’s, Easterling went ahead with the burial.

¶4.    Approximately two months later on September 7, 2002, UMMC contacted Easterling

and informed her that the infant she buried was not her daughter. Further, UMMC revealed

that Wadreanna’s body was still in the hospital morgue. During a meeting between the

parties, UMMC presented Easterling with pictures of her daughter’s body and allowed



                                              2
Easterling to visit the morgue to identify the body. Subsequent to the meeting, UMMC

tendered Wadreanna’s body to Easterling, who was finally able to bury her daughter.

¶5.    With no effort to comply with the statutory notice requirements, Easterling filed suit

against UMMC on September 19, 2002. Before service on UMMC, Easterling recognized

her failure to comply with Miss. Code Ann. Section 11-46-11. Rather than seeking a Rule

41(a)(1)(i) dismissal, and then complying with the statute, Easterling inexplicably filed a

Motion for Extension of Time to Complete Service of Process on January 17, 2003, stating,

“Plaintiffs’ counsel has not served Defendants because the case is not ripe due to the notice

required by § 11-46-11 of the Mississippi Code of 1972, as amended.” Easterling elected to

file the notice of claim to UMMC on the same day, January 17, 2003. One month later,

Easterling served process on UMMC.

¶6.    UMMC subsequently filed a Motion for Summary Judgment claiming Easterling

failed to comply with section 11-46-11(1), which requires a plaintiff to send a state entity

notice of a claim ninety days before filing suit. The trial court denied UMMC’s motion and

instead, ordered a ninety-day stay in the proceedings to allow UMMC to avail themselves of

the opportunity to investigate Easterling’s wrongful death and personal injury claims, as well

as to negotiate a possible settlement of the claims.

¶7.    As a result of the trial court’s order, UMMC filed a Motion Requesting Certification

for Interlocutory Appeal. The circuit court denied UMMC’s motion. UMMC now appeals

to this Court from the trial court’s order.



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                                STANDARD OF REVIEW

¶8.    This Court reviews summary judgments de novo. Davis, 869 So. 2d at 401. Summary

judgment shall be granted “if the pleadings, depositions, answers to interrogatories and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as

to any material fact and the moving party is entitled to a judgment as a matter of law.” Miss.

R. Civ. P. 56(c). “The evidence is viewed in the light most favorable to the party opposing

the motion.” Davis, 869 So. 2d at 401. “If there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law, summary judgment should be entered

in his favor.” Id. The moving party bears the burden of demonstrating there is no genuine

issue of material fact. Id.

                                           ISSUES

       I.     Whether the Plaintiff Failed to Comply with the Ninety-day Notice
              Requirement When She Filed Her Complaint More than Four
              Months Before Issuing Notice to the Defendant.

       II.    Whether the Plaintiff Failed to Substantially Comply with the Notice
              Provisions When She Failed to Include Her Medical Malpractice and
              Wrongful Death Claims in Her Written Notice.


                                       DISCUSSION

¶9.    Issue I controls, therefore we need not discuss issue II.

       I.     Whether the Plaintiff Failed to Comply with the Ninety-day Notice
              Requirement When She Filed Her Complaint More than Four
              Months Before Issuing Notice to the Defendant.




                                               4
¶10.   This case deals with a plaintiff’s upsetting and alarming ordeal and the harsh results

that ensue from the plaintiff’s failure to follow proper procedure. UMMC claims that

because Easterling failed to give UMMC notice ninety days before filing her lawsuit, the trial

court erred when it denied UMMC’s motion for summary judgment. On the other hand,

Easterling claims she substantially complied with the requirement, or, in the alternative,

UMMC waived the ninety-day notice period by not requesting a stay.

¶11.   The Mississippi Tort Claims Act (“MTCA”) sets forth procedures a claimant must

follow in order to assert a claim against a government entity. The relevant rule states:

       After all procedures within a governmental entity have been exhausted, any
       person having a claim for injury arising under the provisions of this chapter
       against a governmental entity or its employee shall proceed as he might in any
       action at law or in equity; provided, however, that ninety (90) days prior to
       maintaining an action thereon, such person shall file a notice of claim with the
       chief executive officer of the governmental entity.

§ 11-46-11(1). Because UMMC is an entity of the state, a claimant is subject to the

requirements of the MTCA. See § 11-46-1(j).

¶12.   In the case at bar, Easterling argues she complied with the notice provisions and cites

as authority Jackson v. City of Wiggins, 760 So. 2d 694 (Miss. 2000), City of Pascagoula

v. Tomlinson, 741 So.2d 224 (Miss. 1999), and Jackson v. City of Booneville, 738 So. 2d

1241 (Miss. 1999).

¶13.   In Tomlinson, the plaintiff did not strictly follow the ninety-day notice requirement

when he filed suit two weeks after providing notice of his claim. Id. at 228. Instead of

dismissing the lawsuit, we held the proper remedy was to require the governmental entity to

                                              5
request a stay of the lawsuit. Id. This allowed the governmental entity to benefit from the

applicable waiting period. Id. Should the governmental entity not request a stay, the issue

would be considered waived. Id. at 229. See also Williams v. Clay County, 861 So. 2d 953,

977 (Miss. 2003); Leflore County v. Givens, 754 So. 2d 1223,1231-32 (Miss. 2000); City of

Wiggins, 760 So. 2d at 696; Jones ex rel. Jones v. Miss. Sch. for Blind, 758 So. 2d 428, 429

(Miss. 2000); City of Booneville, 738 So. 2d at 1246;

¶14.   In City of Booneville, 738 So. 2d at 1245, the plaintiff filed her complaint before

giving notice to the defendant. Although the plaintiff gave notice and filed her complaint in

reverse chronological order of what is required by the MTCA, this Court reaffirmed

Tomlinson and held the proper remedy called for the governmental entity to file a motion to

stay the lawsuit in order to benefit from the statutorily-mandated waiting period. Id. at 1246.

¶15.   In City of Wiggins, 760 So. 2d at 695, the plaintiff filed notice approximately sixty-

seven days before he filed suit. Again, we cited Tomlinson and held “the City’s sole remedy

for Jackson’s failure to comply with the ninety-day waiting period was to file a motion to stay

the lawsuit, and the City’s failure to file such a motion constitute[d] a waiver of its right to

object to Jackson’s non-compliance with the waiting period.” Id. at 696.

¶16.   However, in 2004, this Court announced in Davis, 869 So. 2d at 402, it was no longer

the defendant’s duty to request a stay or face a waiver of the ninety days when the plaintiff

failed to comply with the statutory notice period, finding that a failure to wait ninety days

after giving notice to file a claim was grounds for summary judgment. There, the plaintiff



                                               6
gave notice of his lawsuit on the same day he filed his suit. Id. Although this Court held the

plaintiff failed to file suit before the MTCA one-year statute of limitations ran, this Court

also held the plaintiff failed to comply with the ninety-day notice provision and affirmed the

trial court’s grant of summary judgment. Id.

¶17.   Similarly, in Wright, 876 So. 2d at 367, this Court held the plaintiff’s suit was barred

when the plaintiff filed suit after the one-year statute of limitations ran. Id. In addition, this

court held the plaintiff failed to comply with the statute’s notice provisions when the plaintiff

gave notice only eleven days before filing her complaint. Id. at 366. We stated “[a]llowing

a plaintiff to file suit before ninety days have passed since noticing the claim is tantamount

to reading out the notice provisions of the MTCA.” Id. Again, for both the plaintiff’s failure

to file suit within the statute of limitations, as well as failing to abide by the ninety-day notice

requirement, this Court held the plaintiff did not comply with section 11-46-11, and thus

affirmed the trial court’s entry of summary judgment. Id. at 367.

¶18.   In the case at bar, UMMC contends both Davis and Wright are controlling and

therefore the trial court erred when it refused to dismiss Easterling’s suit for failure to adhere

to the interpretation of the ninety-day notice rule as set forth in those cases. There is no doubt

the language of Davis and Wright is in conflict with our prior rulings in which we have

called for the defendant to request a stay of the proceedings. Today, this Court is provided

an opportunity to clarify the ninety-day notice requirement under the post-1999 section 11-

46-11(1).



                                                 7
¶19.   Although not explicitly stated in Davis and Wright, our ruling served to shift the

responsibility to correct the plaintiff’s failure to follow the ninety-day notice requirement

from the defendant to the plaintiff. Because this Court handed down those cases while

litigation was ongoing between the parties in the case at bar, we find UMMC is correct in

their argument that Davis and Wright are controlling. See Thompson v. City of Vicksburg,

813 So. 2d 717, 721 (Miss. 2002) (retroactive application of judicially articulated rulings

applies to cases awaiting trial); see also Anderson v. Anderson, 692 So. 2d 65, 70 (Miss.

1997) (change in the law applied retroactively to the case pending review on appeal).

¶20.   Since its creation in 1993, the MTCA has undergone numerous amendments requiring

evolving interpretation by the Mississippi Supreme Court. When the MTCA was enacted,

this Court interpreted the notice of claim requirement under a strict compliance standard;

however in early 1999, we began applying a substantial compliance standard to notice of

claim. The language of the statute at that time required a plaintiff to file notice of claim

before the expiration of the one year statute of limitations, the filing of which tolled the

statute of limitations for ninety-five days. Miss. Code Ann. § 11-46-11 (Supp. 1998). The

first ninety days of this ninety-five days was designated for the benefit of the defendant to

investigate and attempt settlement of the claim prior to facing a lawsuit. Tomlinson, 741 So.

2d at 228. However, the old statute created a limited time frame in which a plaintiff could

file a suit and was very difficult to comply with, causing the Court to retreat to the substantial

compliance standard. However, in April of 1999, the Legislature amended Miss. Code Ann.



                                                8
Section 11-46-11 to remedy this concern. Tomlinson is distinguished from this case because

its holding was based on the pre-1999 legislative amendment to Section 11-46-11, and

Easterling’s claim is not.

¶21.   This Court finds Easterling failed to comply with the ninety-day notice requirement

when she filed suit on September 19, 2002, almost four months before giving notice.

Easterling had the option of dismissing her prematurely filed action, properly serving notice

of her claim, and then waiting the ninety-day time period, and if Easterling’s claims against

UMMC were still unresolved, Easterling could properly have filed her action.

¶22.   In order to make it perfectly clear to all that strict compliance is required, as stated in

Davis and Wright, we hereby overrule Tomlinson and its progeny, including Booneville,

Givens, City of Wiggins, Mississippi School for Blind, and Clay County,1 but only as to

those cases’ analysis of the ninety-day notice requirement. In other words, the rule set forth

in Tomlinson, that the responsibility falls on the defendant to request a stay of the lawsuit

when a plaintiff is not in compliance with the ninety-day notice requirement, is abrogated.

¶23.   We do so today because of our constitutional mandate to faithfully apply the

provisions of constitutionally enacted legislation. We also note that our decision today

provides consistency. E.g., Newell v. Jones County, 731 So. 2d 580, 582 (Miss. 1999) (ten

day time limit to file notice of appeal under Miss. Code Ann. section 11-51-75 is both



       1
        In Page v. Univ. of S. Miss., 878 So. 2d 1003 (Miss. 2004), we overruled Clay
County as to its application of the one-year statute of limitations in conjunction with the
ninety-day notice requirement under section 11-46-11. Thus, Page is still good law.

                                                9
mandatory and jurisdictional); Ivy v. GMAC, 612 So. 2d 1108, 1116 (Miss. 1992) (citing

Tandy Electronics, Inc. v. Fletcher, 554 So. 2d 308, 309-312 (Miss. 1989) (thirty-day limit

to file notice of appeal to Mississippi’s appellate courts is a “‘hard-edged, mandatory’ rule

which this court ‘strictly enforces.’”). Since the MTCA’s passage in 1993, a considerable

amount of time has passed for the legal profession to become aware of the ninety-day notice

requirement in section 11-46-11(1). See 1993 Miss. Laws 476. The result here, as in Ivy,

is that the ninety-day notice requirement under section 11-46-11(1) is a “hard-edged,

mandatory rule which the Court strictly enforces.” Ivy, 612 So. 2d at 1116. Accordingly, we

find the trial court erred in its ruling regarding this issue.

                                        CONCLUSION

¶24.   We hold the responsibility to comply with the ninety-day notice requirement under

Section 11-46-11(1) lies with the plaintiff. After the plaintiff gives notice, he must wait the

requisite ninety days before filing suit. Because Easterling failed to comply with the ninety-

day waiting period, her case must be dismissed.

¶25.   REVERSED AND RENDERED.

      WALLER AND COBB, P.JJ., CARLSON, DICKINSON AND RANDOLPH,
JJ., CONCUR. EASLEY, J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED IN PART BY GRAVES, J. DIAZ, J., NOT PARTICIPATING.


       EASLEY, JUSTICE, DISSENTING:




                                                10
¶26.   I must respectfully dissent with the majority’s imposition of a strict compliance

standard against Easterling. I would affirm the trial court’s denial of UMMC’s motion for

summary judgment and affirm the ninety day stay in the proceedings. This case is unique

because UMMC notified Easterling of its egregious mistake. Therefore, I must disagree with

the majority’s imposition of a strict compliance standard for the ninety day waiting period

for the reasons stated below.

¶27.   Without dispute, this is a horrible and tragic case. Easterling had to endure the loss

of her child; bury a child that was not her own; receive confirmation that UMMC had

mistakenly given her the wrong child; and finally have a second burial of her own child. A

pivotal distinction in this case is that UMMC notified Easterling that it had mistakenly given

her the wrong dead child. By informing Easterling of a mistake of this magnitude, there is

no question that UMMC would have and should have been bracing itself for a lawsuit.

¶28.   Easterling argues that she substantially complied with the notice requirements of the

MTCA and relies upon City of Booneville and City of Wiggins. In City of Booneville and

City of Wiggins, this Court held that the claimants substantially complied with the

requirements of MTCA § 11-46-11. In City of Booneville, the claimant filed the lawsuit

prior to giving notice. City of Booneville, 738 So. 2d at 1241. Whereas, in City of Wiggins,

the claimant filed suit sixty-seven days after giving notice. City of Wiggins, 760 So. 2d at

695.




                                             11
¶29.   The majority, however, relies upon Davis and Wright to hold that substantial

compliance no longer applies to the ninety day notice requirement of the MTCA. However,

the facts of this case are clearly distinguishable from Davis and Wright.

¶30.   The key fact in this case is that UMMC notified Easterling of its mistake. Therefore,

it should have been no surprise to UMMC that Easterling would file suit considering that this

mistake concerned the mix-up of the bodies of her dead child and another child. By simply

notifying Easterling of the mistake, UMMC must have known that the nature of the mistake

would bring litigation. UMMC was in essence placing itself on notice and should have been

preparing for a lawsuit.

¶31.   In Wright, this Court affirmed the grant of summary judgment in favor of a doctor and

hospital. Wright, 876 So. 2d at 364. That case concerned a negligence claim for the failure

of proper diagnosis and treatment in the death of an eight month unborn child. Id. at 364.

Wright filed her complaint eleven days after filing her notice of the claim. Id. at 366. In

Davis, the defendants received notice of the claim on the same day that the lawsuit was filed.

Davis, 869 So. 2d at 402.

¶32.   Both Wright and Davis concerned allegations of a failure to diagnose the patient. The

doctors and hospitals did not notify the claimants of any wrongdoing. Unlike the facts of this

case, the medical staff and hospitals did not admit any mistake in Wright and Davis. Both

Wright and Davis also had underlying one-year statute of limitations problems. Here,

Easterling filed her lawsuit less than one year after her daughter’s death. These are key



                                             12
distinctions in these cases. Furthermore, Easterling provided UMMC more notice than the

claimants in Wright and Davis, albeit not ninety days.

¶33.   The majority cites that Easterling filed her action in September 2002, prior to giving

90 days notice. This is true; however, Easterling never served the complaint prior to giving

UMMC notice of her action. In January 2003, Easterling gave notice to UMMC. Thereafter,

Easterling served UMMC with the complaint a month later. As stated before, because of

UMMC’s disclosure of its mistake and the nature of this case, there should have been no

question that Easterling would seek to bring an action against UMMC.

¶34.   I believe that the notice provision is to provide medical personnel and facilities time

to prepare for litigation. Here, UMMC notified Easterling of its own wrongdoing which was

of such a sensitive nature that there would be no question of impending litigation. Surely,

the hospital must have considered litigation and liability issues before informing Easterling

of the nature of its mistake. Therefore under the facts of this case, I would affirm the trial

court’s denial of the motion for summary judgment and affirm the ninety day stay.

       GRAVES, J., JOINS THIS OPINION IN PART.




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