                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2011-CA-01197-SCT

KEVIN G. CLARK

v.

WILLIAM E. KNESAL d/b/a BILL KNESAL,
CONTRACTOR AND DAVID LEVA d/b/a DAVID
LEVA STUCCO


DATE OF JUDGMENT:                          07/11/2011
TRIAL JUDGE:                               HON. LAWRENCE PAUL BOURGEOIS, JR.
COURT FROM WHICH APPEALED:                 HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    ROBERT C. WILLIAMSON, JR.
ATTORNEYS FOR APPELLEE:                    SCOTT CORLEW
                                           VINCENT J. CASTIGLIOLA, JR.
                                           JIM DAVIS
NATURE OF THE CASE:                        CIVIL - OTHER
DISPOSITION:                               AFFIRMED - 05/16/2013
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       COLEMAN, JUSTICE, FOR THE COURT:

¶1.    The case at bar is the result of more than fifteen years of litigation pertaining to a

contract dispute regarding the construction of Kevin Clark’s house. During the litigation, the

contractor and counterplaintiff, William Knesal, died. His defense attorney, provided to him

by his insurance company upon commencement of the suit, filed a suggestion of death in the

deceased’s name. When no substitution motion was filed within the prescribed ninety-day

period, Knesal’s attorney moved to dismiss. Knesal filed the appropriate motion for

substitution well after the mandatory ninety-day period, asserting that Knesal’s attorney had
no standing to submit a suggestion of death and that, additionally, he never received proper

notice of the filing until the motion to dismiss was served. The trial court dismissed the

action, and Clark appealed. We are asked to determine who may file a suggestion of death

with the trial court and what circumstances surrounding a failure to file an appropriate

substitution motion within the statutory period constitute “excusable neglect.”

                             Facts and Procedural History

¶2.    Kevin Clark hired William Knesal to construct a home in Harrison County in 1995.

In 1996, Knesal sued Clark for $89,337, alleging nonpayment for the work performed. Clark

then filed a counterclaim for damages, alleging that Knesal’s work was incomplete and

defective. In response to the counterclaim, Knesal filed indemnity claims against several

subcontractors who also performed work on Clark’s home. Tim Holleman represented

Knesal in his claims against Clark, but Knesal’s insurance company had retained Vincent

Castigliola and Scott Corlew of Bryan, Nelson, Schroeder & Banahan to defend Clark’s

counterclaims. In August 2000, most of the circuit court proceedings were stayed when one

of the third-party defendants, Reliant Building Products, Inc. (“Reliant”), filed for

bankruptcy. Matters that were not adverse to Reliant were permitted to proceed.

¶3.    On October 1, 2008, Knesal died intestate. On November 20 of that year, a hearing

was held on Clark’s motion to lift the stay and for a scheduling order. At the hearing,

counsel for Clark, Robert Williamson, reported that the two sides had discussed terms and

conditions of a possible settlement. Participants in the settlement discussions included

Holleman, Castigliola, and Scott Corlew.




                                             2
¶4.    No further action was taken until nearly ten months later on September 11, 2009,

when Corlew filed a suggestion of Knesal’s death on the record. The suggestion was

properly served on all parties, including Williamson, a solo practitioner at the time, who was

out of town on a two-month sabbatical. According to Williamson, he had set up a system in

his home office to handle all the mail his practice would receive when he was gone by which

letters and correspondence were scanned and e-mailed to him daily by a legal assistant.

Here, the system failed him, and he did not become aware that the suggestion of death had

been filed. On April 20, 2010, seven months after the filing of the suggestion of death,

Corlew filed a motion to dismiss the case against Knesal. Williamson maintains he did not

know the suggestion of death had been filed until Corlew filed the motion to dismiss.

¶5.    On May 13, 2010, Clark filed a petition to open Knesal’s estate in the Harrison

County Chancery Court. The petition was granted on June 9, 2010, issuing general letters

of administration of Knesal’s estate to the Harrison County administrator, John G.

McDonnell. McDonnell was authorized to administer all “the goods and chattels, rights and

credits” of Knesal. On August 4, 2010, Clark filed an amended motion in the circuit court

case to substitute parties, requesting McDonnell, as administrator of Knesal’s estate, be

substituted for Knesal. Following a hearing on the motion to dismiss and the motion to

substitute, the trial court granted the motion to dismiss in July 2011. The court held Clark’s

motion to substitute was untimely, and that Knesal’s attorney of record had authority to file

a suggestion of death on Knesal’s behalf. The order dismissing the case is the subject of the

present appeal.

                                         Discussion


                                              3
       I. Whether the filing of the suggestion of death triggered the ninety-day
          period for substitution under Rule 25 when: (1) the suggestion did not
          identify Knesal’s successors or representative; (2) the suggestion was
          not served on Knesal’s successors or representative; and (3) Knesal’s
          attorneys who represented him at his death filed the suggestion of
          death.

¶6.    Mississippi Rule of Civil Procedure 25(a)(1) governs the procedure for substitution

in the event of a party’s death:

       If a party dies and the claim is not thereby extinguished, the court shall, upon
       motion, order substitution of the proper parties. The motion for substitution
       may be made by any party or by the successors or representatives of the
       deceased party and, together with the notice of hearing, shall be served on the
       parties as provided in Rule 5 and upon persons not parties in the manner
       provided in Rule 4 for the service of summons. The action shall be dismissed
       without prejudice as to the deceased party if the motion for substitution is not
       made within ninety days after the death is suggested upon the record by service
       of a statement of the fact of the death as herein provided for the service of the
       motion.

M.R.C.P. 25(a)(1) (emphasis added). The rule is similar to Federal Rule of Civil Procedure

25(a) as it was amended in 1963. Clark cites many federal cases which support his view that

the suggestion of death must identify potential heirs or representatives, that it must be served

on those potential heirs and representatives, and that the attorneys for the deceased may not

file the suggestion of death.

           A. Whether the suggestion of death is sufficient to trigger the ninety-
              day period for substitution if it does not identify any successors or
              representatives to be substituted.

¶7.    Clark first argues that the suggestion of death was improper because it did not identify

the successor or representative for Knesal, nor was it served on his successor or

representative. We have never before addressed this question directly. However, given that

our rules are patterned on those of the federal government, it is therefore proper for us to look

                                               4
to the federal courts for guidance on this question of interpretation. See Hood ex rel. State

Tobacco Litigation, 958 So. 2d 790 (Miss. 2007); Shaw v. Shaw, 603 So. 2d 287 (Miss.

1992). Generally, under the Federal Rules of Civil Procedure, “[t]he statement noting the

death must be in writing and identify the representatives to be substituted, and it must be

served on the parties . . . and upon persons not parties in the manner provided in Rule 4 for

the service of a summons.” 7C Wright & Miller, Federal Practice and Procedure § 1955

(2008) (emphasis added).

¶8.    In actuality, the federal courts are divided on the question. The Circuit Court for the

District of Columbia found that allowing a suggestion to be filed by the defendant which did

not identify the successors or representatives “would open the door to a tactical maneuver

to place upon the plaintiff the burden of locating the representative of the estate within 90

days.” Rende v. Kay, 415 F.2d 983, 986 (D.C. Cir. 1969) (“No injustice results from the

requirement that a suggestion of death identify the representative or successor of an estate

who may be substituted as a party for the deceased.”). Several courts have found that failure

to identify the deceased’s successors or representatives in the suggestion of death rendered

the suggestion insufficient to trigger the ninety-day time period for substitution. See Al-

Jundi v. Rockefeller, 88 F.R.D. 244, 246-47 (D.C.N.Y. 1980); see also Smith v. Planas,

151 F.R.D. 547, 549 (S.D.N.Y. 1993); Hardy v. Kaszycki & Sons Contractors, Inc., 842 F.

Supp. 713, 716 (S.D.N.Y. 1993).

¶9.    Conversely, the Second Circuit Court of Appeals has explicitly disagreed with that

interpretation and found that no such requirement exists. Unicorn Tales, Inc. v. Bannerjee,

138 F.3d 467 (2d Cir. 1998). The Unicorn Tales court held that it was unnecessary to

                                              5
identify the successors or representatives of the decedent in the suggestion of death because

the language of the rule said nothing about such an identification and was thus sufficient to

trigger the ninety-day period. Id. at 470. This interpretation has been embraced by the Fifth

Circuit. See Ray v. Koester, 85 F. App’x 983, 984 (5th Cir. 2004) (cited in Keller v. Bennett,

103 So. 3d 747, 753 (¶ 24) (Miss. Ct. App. 2012)).

¶10.   We find the reasoning of the Unicorn Tales and Ray courts to be persuasive. Like

the federal rule, the language of our rule makes no mention of a requirement to identify the

successor or representative of the decedent in the suggestion of death. Nothing in the rule

mandates including that information. The Rende court was concerned that a party could file

the suggestion and place the burden on the opposition to find the successors or

representatives within ninety days, but we agree with the Second Circuit that Rule 6(b),

allowing enlargement of a prescribed procedural time limit, acts as an effective safeguard for

any unfortunate party who cannot identify the successor or representative to be substituted

for the decedent within ninety days.

¶11.   Accordingly, we hold that no identification of the successors or representatives of the

decedent is required and affirm the trial court’s determination that failure to identify the

successors or representatives of Knesal’s estate did not toll the ninety-day time period for

substitution.

                1. Whether the suggestion of death was sufficient to trigger
                   the ninety-day period for substitution if it was not served on
                   the non-party successors or representatives of the estate.

¶12.   “The motion for substitution . . . shall be served on the parties as provided in Rule 5

and upon persons not parties in the manner provided in Rule 4 for the service of summons.

                                               6
. . . [T]he death is suggested upon the record by service of a statement of the fact of death as

herein provided for the service of the motion.” M.R.C.P. 25(a)(1). The language clearly

requires service of the suggestion of death be made in the same manner that the rule

mandates for service of the motion to substitute. The rule is unclear, however, as to which

nonparties, if any, must be subjected to Rule 4 service of a suggestion of death. It is

important that, in the case sub judice, Knesal’s heirs did not open an estate for him and no

estate existed until well after the motion to dismiss was filed by Knesal’s attorneys. When

the estate was opened, it was opened by Clark – not by Knesal’s heirs.

¶13.   The Court dealt with the issue of service of a suggestion of death on a nonparty in

Hurst v. Sw. Miss. Legal Servs. Corp., 610 So. 2d 374, 386 (Miss. 1992), overruled on other

grounds by Rains v. Gardner, 731 So. 2d 1192 (Miss. 1999). In Hurst, one of the plaintiffs,

Josie Connerly, died during litigation. Hurst, 610 So. 2d at 385. Southwest, one of the

defendants, promptly filed a suggestion of death on the record and served it on the attorney

for the plaintiffs. Id. An executrix was named for Connerly’s estate, and the plaintiff’s

attorney was retained to represent the estate. Id. Ninety-two days later, after no motion for

substitution had been filed, Southwest moved to dismiss Connerly as a party. Id. The

plaintiffs filed a motion for extension of time to file a substitution for Connerly’s estate,

which the trial court granted, allowing the estate to be substituted and denying Southwest’s

motion to dismiss Connerly as a party. Id. This Court held that the ninety-day period for

substitution was never triggered because the executrix of Connerly’s estate, an interested

nonparty moving for substitution, was never served properly with the suggestion of death as

a nonparty under Rule 4. Id. at 386.

                                               7
¶14.   Hurst does not aid Clark, however, for the simple reason that in the instant case there

existed no estate upon which or personal representative upon whom the suggestion of death

could have been served. The record contains an affidavit from one of Knesal’s attorneys,

wherein he avers that Knesal’s surviving family members had no desire to open an estate or

to continue pursuing Knesal’s claims against Clark. Well after the motion to dismiss was

filed, Clark acted through counsel to open an estate adversely, but – again – the estate was

not in existence during the relevant time period. No court possesses so much authority as to

be able to command a party to serve a nonexistent person or entity.

¶15.   Our holding in the instant case comports with the recent holding of the Mississippi

Court of Appeals in Keller v. Bennett, 103 So. 3d 747 (Miss. Ct. App. 2012).1 Keller sued

Bennett and Bennett’s daughter Clara Larish after Bennett struck Keller while driving

Larish’s car. Id. at 749 (¶ 4). Bennett died while litigation was pending, and his counsel,

who also represented Larish, filed a suggestion of death on the defendants’ behalf. Id.

Keller did not move to substitute within ninety days, and defendants’ attorney moved to

dismiss Bennett. Id. at 750 (¶ 5). Keller did not move for leave to file a motion for

substitution until a year after the motion to dismiss had been filed. Id. at (¶ 6). The court

denied the motion as untimely and granted the motion to dismiss Bennett. Id.

¶16.   On appeal, Keller argued the ninety-day period never began to run because the

executor of Bennett’s estate was never served under Rule 4 as a nonparty and Rule 25



       1
        The mandate in Keller was issued on December 11, 2012, and, on January 11, 2013,
the Court of Appeals dismissed the appellant’s motion to recall the mandate and for
additional time to file a motion for rehearing.

                                              8
mandates service of such a nonparty. Id. at 751 (¶¶ 11-15). The Court of Appeals held that

the plain language of Rule 25 does not mandate a particular category of nonparties that must

be served with the suggestion of death to trigger the ninety-day period. Id. at 751-21 (¶ 16).

“[I]nstead of judicially creating a category of non-parties that must be served in every case

where death is formally suggested, we instead consider whose rights are being cut off by the

ninety-day limit.” Id. at 751 (¶ 13). The Hurst Court properly distinguished between parties,

such as Clark in the case sub judice, and interested nonparties, such as the estate in Hurst.

Id. at 751 (¶14). Because Keller – like Clark in the instant case – was a party, Rule 5 service

on his attorney was sufficient to trigger the time period, and no Rule 4 service on any

nonparty was necessary because no party’s rights were affected. Id.

¶17.   The case sub judice presents the same issue as to service of the suggestion of death

as in Keller. The estate of Knesal had not been opened until Clark’s counsel petitioned the

chancery court on May 13, 2010 – more than one and a half years after Knesal’s death.

Knesal’s successors had no interest in pursuing his claim. Moreover, Clark’s rights regarding

the motion for substitution were not affected by the failure to serve Knesal’s successors.

Accordingly, service was not mandatory, and the Rule 5 service executed upon Clark’s

attorney was sufficient to trigger the ninety-day time period. Clark himself was properly

served through his attorney of record, and he fails to demonstrate any prejudice or harm

resulting from the failure to serve any other person or entity.

              2. Whether the ninety-day time limit was triggered when the
                 suggestion of death was filed in the name of Knesal rather
                 than his successor by one of Knesal’s attorneys of record
                 who had not been retained to represent his successors or
                 estate.

                                              9
¶18.   Clark argues that Knesal’s attorney was not a proper representative of the decedent

because, as a result of Knesal’s death, he no longer had the authority to act on Knesal’s

behalf. Rule 25, however, places no limits on who may properly file the suggestion of death.

Some courts and commentators have concluded that counsel for the decedent does not have

the authority to make the suggestion of death.

       [T]he attorney for the deceased party may not make the statement noting the
       death since the attorney is not a party to the action and, since the attorney’s
       authority to represent the deceased terminated on the death, the attorney is not
       a representative of the decedent of the sort contemplated in the rule.

7C Wright & Miller, Federal Practice and Procedure § 1955 (2008).

¶19.   However, the plain language of Rule 25 requires no authority to act on behalf of the

decedent because there is no limitation in the Rule on who may file the suggestion of death.

“[T]he death is suggested upon the record by service of a statement of the fact of the death.

. . .” M.R.C.P. 25(a)(1). Since the rule is silent as to who may file the suggestion of death,

an attorney may file the suggestion for a deceased client. The dissent’s concern regarding

the dismissal of Knesal’s claims against Dr. Clark and intimation that the deceased Knesal

was somehow betrayed by his defense attorneys have no foundation in the record. There is

no evidence in the record that Knesal’s heirs had any interest in continuing to pursue his

claims against Dr. Clark. To the contrary, the record indicates the heirs had no interest in

pursuing his claims. No heir or representative of Knesal’s estate has appeared to protest the

dismissal.

¶20.   The Second Circuit in Unicorn Tales came to this same conclusion. “[T]he text of

[federal] Rule 25(a)(1) contains no such restriction on who may file the statement [of the fact


                                              10
of death].” Unicorn Tales, 138 F.3d at 470. Again, in Keller v. Bennett, the Mississippi

Court of Appeals held that “the express language of Rule 25(a)(1) does not restrict who may

suggest death upon the record,” and held that the attorney for the decedent was permitted to

suggest the death on the record. Keller, 103 So. 3d at 752 (¶ 20).

¶21.   We are further persuaded by the fact that the sentence preceding the description of the

suggestion of death in Rule 25(a)(1), discussing the procedure for filing a motion for

substitution, is very specific about who may make such a motion. To explain in detail who

may move for substitution, and then to remain silent as to who may file the suggestion of

death, suggests the intent to leave the latter unrestricted. Accordingly, we affirm the trial

court’s determination that Knesal’s attorney could file the suggestion of death on the record.

       II. Whether Knesal’s attorney had standing to file a motion to dismiss.

¶22.   Eight months after the suggestion of death was filed, one of Knesal’s attorneys moved

to dismiss Knesal as a party and to dismiss the case. Clark argues this was done long after

any authority existed between Knesal and his attorneys, and that Knesal’s counsel had no

standing or authority to make the motion to dismiss. However, Rule 25 does not require a

motion to dismiss to be filed, nor does it limit who may file such a motion if one is filed.

¶23.   Accordingly, the trial court had the authority to dismiss the case. The rule states that

“[t]he action shall be dismissed without prejudice as to the deceased party if the motion for

substitution is not made within ninety days after the death is suggested upon the record.”

M.R.C.P. 25(a)(1). Given that the dismissal is not contingent upon the filing of a motion, the

court acted in accordance with Rule 25 when it dismissed Knesal.




                                             11
       III. Whether the trial court erred in holding that the Rule 25(a) dismissal
            was mandatory after the ninety-day time period for moving for
            substitution had lapsed.

¶24.   In its order granting the motion to dismiss, the trial court stated:

       Dr. Clark also argues that “as stated in the comments to the Rule, dismissal is
       not mandatory.” Upon review of the language of Mississippi Rule of Civil
       Procedure 25 and the comments to Rule 25, the Court finds that Rule 25
       provides that “the action shall be dismissed without prejudice as to the
       deceased party” if no motion for substitution is made within ninety days, and
       the Comment to Rule 25 clearly says that “as the rule states, the action will be
       dismissed without prejudice if a motion for substitution is not made within
       ninety days of the suggestion of death on the record.”

¶25.   The order then granted the motion to dismiss without addressing Clark’s claims of

excusable neglect or extension of time. Clark argues that the trial court erred by determining

that the language of Rule 25 and its comment mandated dismissal after the lapse of the

ninety-day period.

¶26.   The trial court’s order did not address the second half of the paragraph quoted in the

Comment to Rule 25, which states,

       The general provisions of MRCP 6(b) apply to motions to substitute;
       accordingly, . . . the court may allow substitution to be made after the
       expiration of the ninety day period on a showing that the failure to act earlier
       was the result of excusable neglect. MRCP 6(b)(2). See 7A Wright & Miller,
       Federal Practice and Procedure, Civil §§ 1951, 1955 (1972).

M.R.C.P. 25 cmt. Rule 6(b)(2) states that when an act is required to be done within a specific

time, a court has the discretion “upon motion made after the expiration of the specified

period [to] permit the act to be done where failure to act was the result of excusable neglect.”

The comment to Rule 25, along with the language of Rule 6, indicates that a motion for




                                              12
substitution may be granted after the ninety-day period only upon a showing of excusable

neglect.

¶27.   At the hearing, the trial judge evidenced his understanding that the rule did not

mandate dismissal if excusable neglect was found. The following exchange between the

judge and one of Knesal’s attorneys demonstrates that he considered whether excusable

neglect permitted a late filing of the motion to substitute.

       Judge:         . . . Rule 25 says it shall be [dismissed], but if I find there’s
                      excusable neglect, doesn’t that change it from shall to may?

       Corlew:        . . . The comments to Rule 25, which have been approved, state
                      that an extension can be granted for excusable neglect. So if you
                      look at the comments and roll that in, then, yes, sir, I do agree
                      with you.

       Judge:         So it just is waiting on a finding from me if there was excusable
                      neglect or not?

       Corlew:        If you use that rationale, yes, Your Honor.

¶28.   The Court applies an abuse of discretion standard to a trial court’s findings of fact

concerning the existence or lack of good cause or excusable neglect. Long v. Mem’l Hosp.

at Gulfport, 969 So. 2d 35, 38 (¶ 5) (Miss. 2007). We will reverse the trial court’s factual

determination only when it is not supported by substantial evidence. Id. To the extent that

the trial court’s excusable neglect determination involves the interpretation of legal principles,

we will conduct a de novo review. Id.

¶29.   This Court has not previously defined what constitutes excusable neglect in the context

of Rule 25, but we have addressed it in the context of Rule 4. As we have held, simple

inadvertence, mistake of counsel, or ignorance of the rules usually does not constitute



                                               13
excusable neglect. Stutts v. Miller, 37 So. 3d 1, 4 (¶ 9) (Miss. 2010); Holmes v. Coast

Transit Auth., 815 So. 2d 1183, 1186 (¶ 11) (Miss. 2002). Excusable neglect is “a very strict

standard.” Webster v. Webster, 834 So. 2d 26, 29 (¶ 11) (Miss. 2002). Good cause and

excusable neglect have been linked inexorably to one another, as a showing of good cause has

been said to require at least as much as a showing of excusable neglect. Id. at 28 (¶ 4). In the

context of appeals from state agencies, we have written, “Good cause is established when

there is sufficient evidence to show that a party failed to receive the mailing due to delays in

the mail or because of an act beyond the party’s control.” Several courts have held that a

mistakes in handling the mail or otherwise do not constitute excusable neglect. Andrew Bihl

Sons, Inc. v. Trembly, 67 Ohio App. 664, 667, 588 N.E.2d 172, 173 (1990); Airline Pilots

in Service of Executive Airlines, Inc., Counsel No. 2, Union of Prof. Airmen v. Executive

Airlines, Inc, 569 F.2d 1174 (1st Cir. 1978); Pasquale v. Finch, 418 F.2d 627 (1st Cir. 1969).

¶30.   At the time the suggestion of death was served in the instant case, counsel for Clark

was on a lengthy sabbatical. Although he appears to have put in place a system for having

his mail forwarded to him, in this instance, the system failed. Clark was able to plead his case

for excusable neglect fully at the hearing on the motion for substitution and dismissal. It is

clear from the hearing transcript that the trial court considered whether Clark’s failure to file

a timely motion to substitute was the result of excusable neglect. Based on the record and our

prior pronouncements concerning excusable neglect and good cause, we cannot conclude the

trial court abused its discretion in not finding excusable neglect.

                                          Conclusion




                                               14
¶31.   We find that the plain language of Rule 25 permitted Knesal’s attorney to file to

suggestion of death without naming Knesal’s successors or representatives. Similarly, there

is no requirement under the rule that a motion to dismiss be filed at all prior to dismissal, so

the fact that a motion to dismiss was filed by Knesal’s attorneys does not provide grounds to

overturn the trial court’s decision. We further find that the trial court did not abuse its

discretion when it did not find Clark’s delay in responding to the suggestion of death resulted

from excusable neglect. Therefore, the decision of the trial court is affirmed.

¶32.   AFFIRMED.

      WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR AND PIERCE,
JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY CHANDLER AND KING, JJ.

       KITCHENS, JUSTICE, DISSENTING:

¶33.   I disagree with the majority’s holding that the attorneys for William Knesal had the

authority to file a suggestion of death or a motion to dismiss on behalf of Knesal. The majority

gives short shrift to the fact that Knesal was the original plaintiff in this action, and that he had

maintained his claims against Clark for the entirety of the litigation. Because I find that

Knesal’s attorneys acted without authority to dismiss an action that Knesal clearly believed

was justified and which Knesal showed every intention of pursuing, I respectfully dissent.

¶34.   It is not clear what, if any, authority or standing the Bryan Nelson lawyers – Castigliola

and Corlew – had to file the suggestion of death as it affected Knesal’s claim against Clark,

the filing of which started the ticking of the 90-day clock, during which period the filing of

a motion for substitution would have been necessary to avoid the dismissal of Knesal’s case.

It goes without saying that the deceased Mr. Knesal did not authorize or direct these lawyers

                                                 15
to file the suggestion of his death. At that time, Knesal’s estate had not been opened; so, there

was no personal representative (executor or administrator) to direct or authorize the filing of

the suggestion of death.

¶35.   Today, this Court, for the first time, determines who may properly file a suggestion of

death, holding that anyone may do so and that the suggestion need not identify or be served

upon the successors or representatives of the decedent. Certainly, there are many situations

in which this rule would not be prejudicial to anyone involved. It is ironic, then, that the

majority chooses to apply such a rule in a situation in which the rights and interests of a

decedent are so clearly prejudiced. Mississippi Rule of Civil Procedure 25 requires that the

action must be “dismissed without prejudice as to the deceased party . . . .” M.R.C.P. 25(a)

(emphasis added). While the dismissal clearly benefitted the insurance company that had hired

Knesal’s attorneys by making Clark’s counterclaim go away, it was patently prejudicial to

Knesal in at least two significant respects: 1) it extinguished the $89,337 claim that had

prompted him to file the suit in the first place, then maintain it for twelve years, and 2) even

assuming that the claim could be refiled and litigated, the case lost its position on the crowded

docket of the Harrison County Circuit Court. Thus, Rule 25's requirement that dismissal, if

any, be accomplished without prejudice to the deceased party was not satisfied.

¶36.   This Court provided a thorough analysis of an attorney’s duties to an insured when the

attorney was hired by the insurer in Hartford Accident & Indemnity Co. v. Foster. 528 So.

2d 255 (Miss. 1988). The Court found that there was “no question” that the lawyer owed a

duty of “absolute loyalty” to the interests of the insured. Id. at 268. When the interests of an

insured and insurer are in conflict, it is the lawyer’s duty to preserve the interests of both

                                               16
clients, and the lawyer “certainly is prohibited from taking any action which may injure either

client.” Id. at 270.

¶37.   By fully dismissing Knesal’s case, including the original cause of action that he himself

had gone to the trouble and expense of filing and litigating, his attorneys appear to have

disregarded Knesal’s interest in pursuing his claim against Clark, in essence “throwing out

the baby with the bath water” in order to benefit their other client, an insurance company. At

the time these actions were taken, the only client Castigliola and Corlew had that was capable

of giving them instruction or authorization to take such action was the only one that would

benefit from it: the insurance company. Being dead, Mr. Knesal could neither give nor

withhold his consent to this strategy, and his administrator had not yet been appointed. While

the insurance policy may very well have authorized Castigliola and Corlew to proceed in the

manner they did on behalf of the insurance carrier, such action clearly was prejudicial to the

interest of Knesal in the prosecution of his claim against Clark, which he steadfastly had

pursued during his lifetime. In my view, these lawyers had no standing or authority to effect

the dismissal of that claim, notwithstanding that Knesal did benefit, along with the carrier,

from the dismissal of Clark’s counterclaim.

¶38.   Tim Holleman was the attorney who represented Knesal in his prosecution of his

claims against Clark. The record does not indicate that he took any part in the proceedings

concerning the suggestion of death and dismissal motion. Interestingly, Scott Corlew’s

Certificate of Service attached to the Suggestion of Death indicates that a copy was sent to

Mr. Williams as attorney for Clark, to two other lawyers who represented two of the third-

party defendants, to Harry Allen as attorney for Hancock Bank, and, finally, to Tim C.


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Holloman [sic], without listing him as anyone’s attorney. It cannot be determined from the

record whether Holleman had become inactive in the case, or, more likely, whether he

recognized that, with Mr. Knesal in his grave and without an executor or administrator, he was

a lawyer without a client. Similarly, when Castigliola filed the motion to dismiss more than

eight months later, he certified that he had copied Holleman (spelled correctly this time), but

did not note that Holleman represented any party. Significantly, perhaps, both Corlew in his

certificate and Castigliola in his motion to dismiss identified themselves as “attorney for the

Plaintiff/Counter-Defendant, William E. Knesal. (Emphasis added.) So, they appear to have

recognized that they had assumed the role and responsibility of acting for the dead Mr. Knesal

in his capacity as plaintiff in the case, and they seemed perfectly comfortable in effecting the

dismissal of a $90,000 claim that no one had authorized them to handle.

¶39.   William Knesal was clearly committed to this lawsuit. He hired a lawyer, instituted the

action against Clark and maintained it for the last twelve years of his life, never giving any

indication that he was willing for his original claim against Clark to be dismissed. Castigliola

and Corlew have never contended that Knesal instructed or authorized them to dismiss his

claim against Clark, which involved a substantial amount of money that Knesal clearly had

believed he was entitled to collect. The filing of the suggestion of death and the subsequent

dismissal of the suit clearly prejudiced Knesal’s interest in pursuing what he thought to be a

valid claim. The attorneys who filed it had no authority to do so, and were actively operating

against their deceased client’s interests. After Knesal died, his attorneys had a duty of loyalty

to protect his interests, and instead acted to protect the interests of another client. Because I

find that Knesal’s attorneys had no authority to file the suggestion of death, and that the rules


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of legal ethics prevented them from doing so, I would reverse the dismissal of the claims

between Clark and Knesal and remand for further proceedings. Therefore, I respectfully

dissent.

       CHANDLER AND KING, JJ., JOIN THIS OPINION.




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