 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Necaise v. Sacks3/27/2003
>
. On the morning of trial, with over one hundred prospective jurors present for voir dire and jury selection, Sacks and MOG filed a motion to dismiss pursuant to Miss. R. Civ. P. 12(b)(6), 12(b)(7), & 19. In their motion, Sacks and MOG asserted that Necaise lacked standing to bring the suit for Freeman's personal injuries because such a suit could only be maintained by Freeman's estate; and, that even if Freeman's estate were allowed to maintain a suit for Freeman's personal injuries, the suit was barred by the applicable statutes of limitations. See Miss. Code Ann. § 15-1-36, as to medical negligence, and Miss. Code Ann. § 15-1-55 (estate savings statute). After hearing arguments in chambers prior to commencement of voir dire, the trial judge decided to dismiss the jurors, continue the trial, take the motion under advisement, and set deadlines for the plaintiff's reply to the defense motion and the defendants' rebuttal in response to the plaintiff's reply.
. On August 31, 2001, Necaise filed her response to the dismissal motion of Dr. Sacks and MOG, alleging inter alia that the defendants' motion was untimely; that she had been substituted as a party plaintiff by court order after Freeman's death; that the first amended complaint was filed only after she had been appointed by chancery court order to be the executrix of Freeman's estate; that the defendants could not claim surprise by Necaise being involved in the litigation in her capacity as executrix of Freeman's estate because such information was revealed to the defendants in interrogatory responses more than a year prior to the actual trial; that if there were any defect in the pleadings, such was cured by a liberal application of Miss. R. Civ. P. 15 providing for amendments to pleadings and a copy of such motion for leave to amend and proposed second amended complaint were attached as exhibits to the response; and, that a review of the second amended complaint would reveal that it "relates back" to the original pleading pursuant to Miss. R. Civ. P. 15(c), thus saving the case from being time-barred under the statutes of limitations. On September 7, 2001, Dr. Sacks and MOG responded to Necaise's motion for leave to amend as well as to her response to their motion to dismiss.
. By order dated January 2, 2002, and filed on January 3, 2002, the trial judge denied Necaise's motion to file a second amended complaint and granted the dismissal motion of Dr. Sacks and MOG. Among the reasons for dismissal stated by the trial judge in his order were that (1) Necaise had abandoned her wrongful death claim, thus leaving only Freeman's original claim for injuries and damages sustained during his lifetime, a claim which only Freeman's estate, and not Necaise, individually, could pursue, and as such the complaint before the court failed to state a claim upon which relief could be granted [Miss. R. Civ. P. 12(b)(6)]; (2) although Necaise was the duly appointed executrix of Freeman's estate, her failure to maintain the litigation in the name of the estate rendered the proceedings "a nullity"; (3) Necaise's "individual pursuit" of Freeman's personal injury claim would not toll the applicable statutes of limitations concerning any claim which could only properly be brought by the estate; and (4) any effort to then assert a personal injury claim on behalf of the estate would be futile due to the running of the applicable statutes of limitations.
. Necaise states the issues to be as follows: (1) Whether the trial court's dismissal of this action without allowance of reasonable time after objection to substitute the real party in interest violates Rules 15, 17 and 19 of the Mississippi Rules of Civil Procedure; and, (2) Whether the defend
Page 1 2 3 4 5 6 7 8 Mississippi Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|