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Necaise v. Sacks3/27/2003
ants' motion to dismiss was untimely and waived any real party in interest objection. On the other hand Dr. Sacks and MOG state the issues to be as follows: (1) Whether the defendants' motion to dismiss was timely; (2) Whether Nancy Necaise has standing to pursue an action for Charles Freeman's personal injuries; (3) Whether the statute of limitations on any estate claim on behalf of Charles Freeman has expired; and, (4) Whether substitution of the estate of Charles Freeman is appropriate. In her rebuttal brief, responding to the brief of Dr. Sacks and MOG, Necaise states the remaining issues to be (3) Whether any statute of limitations bars a civil action for medical malpractice filed within four months of the date of the malpractice; and, (4) Whether any statute of limitations bars an action by an individual person who amends the complaint to plead her representative capacity as executrix. STANDARD OF REVIEW
. We apply the de novo standard when reviewing the granting of a Miss. R. Civ. P. 12(b)(6) motion. Arnona v. Smith, 749 So.2d 63, 65-66 (Miss. 1999). As such, we sit in the same position as did the trial court. Furthermore, statutory interpretation is a question of law, and we also review questions of law de novo. Donald v. Amoco Prod. Co., 735 So.2d 161, 165 (Miss. 1999).
DISCUSSION
I. WHETHER NANCY NECAISE HAS STANDING TO PURSUE AN ACTION FOR CHARLES FREEMAN'S PERSONAL INJURIES.
. The central issue in this case is whether Necaise may maintain her deceased father's personal injury claim, either in her individual capacity, or in her capacity as executrix of her father's estate. Necaise claims that she can; Dr. Sacks and MOG claim that she cannot. Necaise chooses to support her position with claims of the applicability of Miss. R. Civ. P. 17(a) as it relates to joinder and substitution of the real party in interest; Miss. R. Civ. P. 19 as it relates to joinder of a party needed for just adjudication; and, Miss. R. Civ. P. 15 as it relates to liberal joinder and the "relation-back" provision, as well as certain case law. Necaise also attacks the lack of timeliness by the defendants in filing what turned out to be the dispositive motion to dismiss on the day of trial. On the other hand, Dr. Sacks and MOG cite certain statutes and case law to support their claims of Necaise's lack of standing to individually pursue her deceased father's personal injury claims; the running of the applicable statute of limitations; and, Necaise's late efforts to finally get it right by way of maintaining her deceased father's personal injury claims in the name of his estate.
. Miss. Code Ann. § 91-7-233 (Rev. 1994) states, in pertinent part: Executors, administrators, and temporary administrators may commence and prosecute any personal action whatever, at law or in equity, which the testator or intestate might have commenced and prosecuted.
. Miss. Code Ann. § 91-7-237 states, in pertinent part:
When either of the parties to any personal action shall die before final judgment, the executor or administrator of such deceased party may prosecute or defend such action, and the court shall render judgment for or against the executor or administrator.
Additionally, Miss. Code Ann. § 15-1-36 (Supp. 2002) states that medical malpractice claims must be brought within two (2) years from the date of the alleged negligent act or omission, while the estate savings statute, Miss. Code Ann. § 15-1-55 (Rev. 1995), provides that the estate of a person who dies before the expiration of the applicable statute of limitations may sue or be sued after the running of the applicable statute and within one (1) year after the death of the person. Stat
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