The Estate of Shirley Price, and Her Wrongful Death Beneficiaries v. St. Dominic-Jackson Memorial Hospital and CLC of Jackson, LLC d/b/a Pleasant Hills Community Living Center

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2024-CA-00582-COA

THE ESTATE OF SHIRLEY PRICE, APPELLANT
DECEASED, AND HER WRONGFUL DEATH
BENEFICIARIES

v.

ST. DOMINIC-JACKSON MEMORIAL APPELLEES
HOSPITAL AND CLC OF JACKSON, LLC
D/B/A PLEASANT HILLS COMMUNITY
LIVING CENTER

DATE OF JUDGMENT: 04/15/2024
TRIAL JUDGE: HON. JAMES D. BELL
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: BRANDON ISAAC DORSEY
ATTORNEYS FOR APPELLEES: JOHN ERNEST WADE JR.
JOHN G. WHEELER
AMANDA LANE BURCH
ROBERT LANE BOBO
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
DISPOSITION: AFFIRMED - 11/25/2025
MOTION FOR REHEARING FILED:

EN BANC.

WILSON, P.J., FOR THE COURT:

¶1. The circuit court dismissed the complaint in this medical malpractice case for two

independent reasons, finding (1) that the statute of limitations barred the complaint and (2)

that the suit was an impermissible duplicative action. On appeal, plaintiff Shirley Price1

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Price died in 2023, and her estate was substituted as a party. For ease of reference,
we refer to the plaintiff as “Price” throughout the opinion.
argues that the statute of limitations does not bar her claims and that the defendants waived

that defense by failing to timely pursue it. However, Price completely fails to address the

fact that the circuit court also dismissed the complaint because it violated the prohibition on

duplicative actions. Indeed, even after the defendants raised that issue in their appellate

briefs, Price again failed to address the issue in her reply brief. Because Price fails to show

that the circuit court erred by dismissing her complaint as a duplicative action, we affirm on

that ground without addressing the statute of limitations.

PROCEDURAL HISTORY

¶2. Price alleges that in August 2015, while she was being treated at St. Dominic-Jackson

Memorial Hospital, she developed a bedsore due to the negligence of St. Dominic’s staff.

Price was transferred to CLC of Jackson LLC d/b/a Pleasant Hills Community Living Center

(Pleasant Hills), where she alleges that her bedsore worsened due to the negligence of

Pleasant Hills’s staff.

¶3. In August 2017, Price served notice of her claim on St. Dominic and Pleasant Hills

pursuant to Mississippi Code Annotated section 15-1-36(15) (Rev. 2019). In October 2017,

Price filed a medical malpractice complaint against St. Dominic and Pleasant Hills in the

Hinds County Circuit Court. However, Price never requested a summons from the clerk or

served either defendant. That case (No. 1:17-cv-590) has never been dismissed.

¶4. In February 2018, Price commenced a new action (No. 1:18-cv-75) by filing a

virtually identical complaint against St. Dominic and Pleasant Hills in the Hinds County

Circuit Court. In June 2018, Price filed a virtually identical amended complaint in this

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second action.

¶5. Both defendants answered the amended complaint, and in August 2018, Pleasant Hills

filed a motion to compel arbitration and a motion to stay discovery. In September 2018,

Price filed a response in opposition to Pleasant Hills’s motion to compel arbitration. The

docket shows no activity in the case for the next twenty-two months. In July 2020, for

reasons the record does not explain, Pleasant Hills withdrew its motion to compel arbitration.

In December 2020, Price filed a motion for a scheduling order.

¶6. In July 2021, Pleasant Hills filed a motion to dismiss based on the statute of

limitations, Miss. Code Ann. § 15-1-36(1) (Rev. 2019). In response, Price argued, inter alia,

that her complaint was timely filed because the statute of limitations was tolled for 120 days

after she filed her complaint in Case No. 1:17-cv-590, which she had never served on either

defendant. Price also argued that Pleasant Hills waived its statute of limitations defense by

not pursuing it in a timely manner. In its rebuttal memorandum, Pleasant Hills argued that

the statute of limitations had expired, that it had not waived the defense, and that Price’s

complaint should also be dismissed because it was an impermissible duplicative action.

¶7. In August 2022, the circuit court granted Pleasant Hills’s motion to dismiss based on

the statute of limitations. The same day, St. Dominic filed a motion for summary judgment,

arguing Price’s complaint should be dismissed based on the statute of limitations and because

it was an impermissible duplicative action. Within ten days, Price filed a motion to alter or

amend the judgment granting Pleasant Hills’s motion to dismiss and a response to St.

Dominic’s motion for summary judgment.

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¶8. In April 2024, the circuit court entered an opinion and final judgment denying Price’s

motion to alter or amend the judgment and dismissing her claims against both defendants.

The court ruled that the statute of limitations barred the complaint and that the defendants

had not waived that defense. The court also dismissed the complaint as an impermissible

duplication action, stating that “this case is dismissed because two identical actions cannot

be maintained at the same time.” Price filed a notice of appeal.

ANALYSIS

¶9. Price identifies two issues on appeal: (1) whether the statute of limitations bars the

complaint, and (2) whether the defendants waived their statute of limitations defense. Price’s

opening brief altogether fails to address the circuit court’s dismissal of her complaint based

on the prohibition against duplicative actions.

¶10. Pleasant Hills and St. Dominic argue that the judgment should be affirmed for both

reasons given by the circuit court, i.e., the statute of limitations and the prohibition against

duplicative actions. Indeed, the defendants both identify the prohibition of duplicative

actions as a separate issue in their respective briefs, and St. Dominic further argues that Price

waived any claim of error by failing to address the issue in her initial brief.

¶11. In Price’s reply brief, she argues (1) that “the circuit court erred in finding that the

2018 complaint was time barred” and (2) “that appellees ‘waived’ their affirmative defense

of statute of limitation.” Price’s reply brief again fails to acknowledge or address the fact

that the circuit court also dismissed her complaint as an impermissible duplicative action.

¶12. “Under Mississippi law, plaintiffs are prohibited from bringing duplicative actions.”

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Triplett v. S. Hens Inc., 238 So. 3d 1128, 1130 (¶12) (Miss. 2018). The Mississippi Supreme

Court has “held plaintiffs have no right to maintain two actions on the same subject in the

same court, against the same defendant at the same time. And unlike the doctrine of res

judicata, a final judgment is not required in order to apply a claim-splitting analysis; rather,

the test is whether the first suit, assuming it were final, would preclude the second suit.” Id.

at 1131 (citations, brackets, and quotation marks omitted); see also Warrington v. Watkins

& Eager PLLC, 371 So. 3d 1277, 1283 (¶¶24-26) (Miss. 2023) (holding that the plaintiff’s

second suit was not barred because he did not “‘maintain[] two actions,’ as contemplated

under the claim-splitting doctrine”).

¶13. Despite the circuit court’s dismissal of the complaint as an impermissible duplicative

action, Price completely failed to address the issue on appeal. By failing to address the issue,

Price waived any claim that the court erred by dismissing her complaint on that ground.

Indeed, “[i]t is a well-established rule that we will not consider issues raised for the first time

in an appellant’s reply brief.” Chisholm v. State, 298 So. 3d 1046, 1050 (¶13) (Miss. Ct.

App. 2020) (brackets and quotation marks omitted); accord, e.g., Biegel v. Gilmer, 329 So.

3d 431, 434 (¶11) (Miss. 2020). Here, because Price does not address the issue at all, she

has even more clearly waived any claim of error. “This Court is under no obligation to

consider [an] issue beyond the arguments presented, and we decline to do so.” Kansler v.

Miss. Dep’t of Revenue, 263 So. 3d 641, 655 (¶40) (Miss. 2018). “It is axiomatic that the

trial court’s judgment is presumed to be correct and that the appellant bears the burden of

showing reversible error in the court below.” Concerned Citizens of Raven Wood Subdiv.

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v. Pearl River County, 172 So. 3d 1234, 1236 (¶10) (Miss. Ct. App. 2014). Price fails to

meet her burden of showing reversible error in the circuit court’s dismissal of her complaint

as a duplicative action. Because Price has waived any challenge to the dismissal of the

complaint on that ground, we affirm the circuit court’s judgment on that ground.2 Therefore,

it is unnecessary to address the statute of limitations or any alleged waiver of that defense.

¶14. AFFIRMED.

CARLTON, P.J., WESTBROOKS, LAWRENCE, McCARTY AND
EMFINGER, JJ., CONCUR. McDONALD, J., CONCURS IN RESULT ONLY
WITHOUT SEPARATE WRITTEN OPINION. LASSITTER ST. PÉ, J., SPECIALLY
CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY WESTBROOKS,
J. BARNES, C.J., AND WEDDLE, J., NOT PARTICIPATING.

LASSITTER ST. PÉ, J., SPECIALLY CONCURRING:

¶15. Although I concur with the majority’s well-reasoned opinion, I find it necessary to

2
See Home Sols. of Miss. LLC v. Ridge, 301 So. 3d 670, 678 (¶26) (Miss. Ct. App.
2020) (affirming a general verdict in favor of the plaintiff because the defendants only
challenged the sufficiency of the evidence to support one theory of recovery and failed to
“raise[] or brief[] the [plaintiff’s] alternative theory of recovery as an issue [on] appeal”);
see also, e.g., Buckley v. Sec’y of Army, 97 F.4th 784, 800 (11th Cir. 2024) (“[W]hen a
district court bases its order on more than one independent ground, a party must convince
us that every stated ground for the judgment against her is incorrect. If she doesn’t
challenge one or more bases for the district court’s ruling, we consider her appeal of that
ruling abandoned, and judgment is due to be affirmed.” (citation, brackets, and quotation
marks omitted)); LabMD Inc. v. Boback, 47 F.4th 164, 191 (3d Cir. 2022) (“The failure to
challenge an independent basis for a district court’s decision is fatal to an appeal.”); City of
Taylor Gen. Emps. Ret. Sys. v. Astec Indus. Inc., 29 F.4th 802, 815 (6th Cir. 2022) (holding
that because the appellants failed to address an “alternative, independent basis” for the
district court’s dismissal of their complaint, “that ruling stands,” and “the merit of the issue
they [did] raise [was] irrelevant”); U.S. Bank Nat’l Ass’n v. Verizon Commc’ns Inc., 761
F.3d 409, 439 (5th Cir. 2014) (“When an appellant challenges only one of the district court’s
alternative holdings, any argument that the alternative holding was in error is waived,” and
the appeal “necessarily fails.”); Atwood v. Union Carbide Corp., 847 F.2d 278, 280 (5th Cir.
1988) (holding that when an “issue constituted an independent ground for dismissal below,”
the appellant must “raise it to have any chance of prevailing [on] appeal”).

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address the application of the two-year statute of limitations and the sixty-day notice period

of Mississippi Code Annotated section 15-1-36(15) (Rev. 2019), as it is apparent that neither

the parties nor the trial court appropriately applied the applicable statutes or caselaw.

¶16. Price argues that her statute of limitations began to run on August 20, 2015, and aside

from any tolling, it expired on August 20, 2017. Price contends that the notice period in

section 15-1-36(15) tolled the statute of limitations for sixty days from the expiration of the

original statute of limitations, making her deadline to file suit October 20, 2017. Price points

out that when she filed her original complaint on October 2, 2017 (with eighteen days

remaining in the limitations period based on her calculations), the limitations period was

tolled for 120 days in accordance with Rule 4(h). Price asserts that 120 days from October

2, 2017, would have been February 2, 2018,3 and then argues that she is entitled to add to her

deadline the eighteen days remaining on her statute of limitations, giving her a filing deadline

of February 20, 2018. Thus, Price essentially argues that Mississippi Rule of Civil Procedure

4(h) and section 15-1-36(15) work together to give her an additional 180 days in which to

file her second complaint. As such, she argues that her February 13, 2018, complaint was

timely.

¶17. St. Dominic and Pleasant Hills assert that the statute of limitations for Price’s claims

expired on October 6, 2017—sixty days after she filed her notice of claim, without regard to

the original expiration of the statute of limitations. They argue that Price’s notice of her claim

did not toll the statute of limitations but, rather, extended her deadline sixty days from the

3
We have been unable to determine exactly how Price arrived at this date because
120 days from October 2, 2017, is January 30, 2018.

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date of notice, or until October 6, 2017. St. Dominic and Pleasant Hills thus argue that

Price’s October 2, 2017 complaint was timely by four days because it was filed four days

before the notice period ended. Additionally, they agree that after her October 2 filing, the

statute of limitations was tolled for 120 days pursuant to Rule 4(h) and that the statute of

limitations began to run again on January 30, 2018. St. Dominic argues that Price was

entitled to four additional days to refile her complaint because she filed the October 2017

complaint with four days remaining on her sixty-day notice period. Pleasant Hills argues that

Price was not entitled to any additional time and that her deadline passed on January 30,

2018. Neither St. Dominic nor Pleasant Hills gives Price any “credit” for the time remaining

on the statute of limitations when she filed her notice of suit.

¶18. The circuit court did not agree that Price had until October 20, 2017, to file her first

suit but, even accepting Price’s argument, found that her math “does not help her with the

[February 2018] suit.” The circuit court found that the February 2018 suit “commenced long

after October 20, 2017,” and that it ultimately did not matter: “In any event, this case is

dismissed because two identical actions cannot be maintained at the same time.”

¶19. Put simply, no one was correct.

¶20. Applying the statutes, Mississippi Rules of Civil Procedure, and caselaw, I would find

that Price’s February 13, 2018 complaint was timely—even if properly dismissed as a

duplicative action. Our resolution of this issue requires a close examination of the Supreme

Court’s decisions concerning the effect of the sixty-day notice provision on the two-year

statute of limitations for medical malpractice lawsuits.

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¶21. Mississippi Code Annotated section 15-1-36(15) requires plaintiffs in a medical

malpractice action to provide at least sixty days’ written notice of their intent to file suit and

provides: “If the notice is served within sixty (60) days prior to the expiration of the

applicable statute of limitations, the time for the commencement of the action shall be

extended sixty (60) days from the service of the notice for said health care providers and

others.” Id.

¶22. The Supreme Court reviewed this issue in Pope v. Brock, 912 So. 2d 935 (Miss.

2005). The plaintiff, Pope, served the notice of claim two days before her two-year statute

of limitations expired. Id. at 936 (¶2). Once the sixty days expired, Pope filed suit. Id. The

trial court dismissed the complaint, finding it was barred by the statute of limitations. Id. at

937 (¶6). In reversing the trial court, the Supreme Court found that section 15-1-36(15) was

ambiguous because its language was susceptible to two equally reasonable interpretations.

Id. at (¶¶8-10). If the statute was read in isolation, a fair interpretation would be that the

statute of limitations expires sixty days from the service of the notice. Id. at 936 (¶5).

However, the statute’s language, “shall be extended,” may also be fairly read to provide a

sixty-day tolling of the two-year period. Id.

¶23. In determining the most reasonable interpretation of section 15-1-36(15), the Pope

Court relied heavily on Mississippi Code Annotated section 15-1-57 (Rev. 2019), which

states:

When any person shall be prohibited by law, or restrained or enjoined by the
order, decree, or process of any court in this state from commencing or
prosecuting any action or remedy, the time during which such person shall be
so prohibited, enjoined or restrained, shall not be computed as any part of the

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period of time limited by this chapter for the commencement of such action.

Id. (emphasis added).

¶24. The Court found that the language “shall be prohibited” in section 15-1-57 precluded

Pope from filing any suit during the sixty-day period, and at the time she filed her notice, she

had two days remaining on her two-year statute of limitations. Id. at 938 (¶15). As a result,

when the sixty days expired, Pope still had two days remaining to file her complaint. Id.

Thus, in Pope, the Court agreed that the sixty-day notice period tolled the statute of

limitations, essentially giving plaintiffs two years and sixty days to timely file her medical

malpractice lawsuit. Id.

¶25. The year following Pope, the Supreme Court attempted to clarify its decision by

stating “that the [statute of limitations] is extended, not tolled, pursuant to the language of

[section] 15-1-36(15).” Proli v. Hathorn, 928 So. 2d 169, 174 (¶18) (Miss. 2006). The Court

also stated that its ruling in Pope, which held that the statute was “tolled,” was controlling.

Id. at 175 (¶21). In analyzing the facts of the case, the Proli Court noted that the statute of

limitations began to run on May 18, 2002, and ended on May 18, 2004. Id. at 173 (¶13). The

notice of claim was provided on April 22, 2004, which meant that June 21, 2004—sixty days

after notice was given—was the earliest the plaintiff could file suit. Id. at 175 (¶20). The

court noted that July 17, 2004—sixty days after the statute of limitations expired—was the

latest the plaintiff could file an action. Id. Although the Court clarified its holding in Pope

by stating that the period to file was extended and not tolled, it ultimately applied the same

reasoning used in Pope and gave the Proli plaintiff a full two years and sixty days to file suit.

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Id.

¶26. That same year, the Court in Scaggs v. GPCH-GP Inc., 23 So. 3d 1080 (Miss. 2009),

extended its prior holdings to include plaintiffs who file their notice of claim earlier than

sixty days before the statute of limitations expires. Despite the statute’s clear language that

the sixty days is only given “if the notice is served within sixty days prior to the expiration

of the applicable statute of limitations,” the Supreme Court held that “[t]he reasonable

interpretation of sections 15-1-36(15) and 15-1-57 requires that the sixty-day notice period

may not be used in calculating the statute of limitations, whether notice is given before or

during the final sixty-day period of the statute of limitations.” Id. at 1276-77 (¶11). The Court

found that the injury occurred on March 14, 2002, that Scaggs filed the statutorily required

notice, and that therefore he had until May 13, 2004 (two years and sixty days from the

injury) to file the complaint. Id. at (¶13).

¶27. Additionally, once a plaintiff has filed a complaint, Mississippi Rule of Civil

Procedure (4)(h) gives the plaintiff 120 days to serve the defendants, and the statute of

limitations is tolled during that time. However, “if the plaintiff fails to serve process on the

defendant within that 120-day period, the statute of limitations automatically begins to run

again when that period expires. Holmes v. Coast Transit Auth., 815 So. 2d 1183, 1185 (¶7)

(Miss. 2002). During that period, the plaintiff could also refile her complaint “if the[e] case

is dismissed without prejudice and time remains on the statute of limitations.” Knight v.

Knight, 85 So. 3d 832, 836 (¶24) (Miss. 2012). If the plaintiff fails to serve the defendant

within the 120-day period, she must either re-file the complaint before the statute of

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limitations ends or show good cause for failing to serve process on the defendant within that

120-day period; otherwise, dismissal [without prejudice] is proper.” Holmes, 815 So. 2d at

1185-87 (¶¶7, 15) (Miss. 2002).

¶28. Applying the Supreme Court’s rationale to the instant case, it is clear that the parties

and the court erred in calculating the statute of limitations and the final date by which Price

could have filed her second complaint.4

¶29. In calculating the timeliness of Price’s second complaint, none of the parties or the

trial court properly applied the law as it relates to the sixty-day notice period. The Supreme

Court’s clarification in Proli that “the time period [in section 15-1-36(15)] is extended, not

tolled” likely added to the confusion, as the practical effect of the Court’s application actually

tolled the two-year statute of limitations for sixty days. Indeed, in Pope, Proli, and Scaggs,

the plaintiffs in each case were given two years and sixty days from the date of injury to file

their complaints.

¶30. When Price filed her notice of claim on August 7, 2017, there were fourteen days

remaining in the statutory limitations period. When she filed suit on October 2, 2017, the

remaining days on her statute of limitations clock were tolled for 120 days pursuant to Rule

4(h). When Price failed to serve the defendants within 120 days, her statute of limitations

began to run again on January 30, 2018. Adding the fourteen days that remained when she

filed her notice of claim, Price had until February 13, 2018, to file her second complaint.5

4
The validity of this second complaint, of course, assumes that Price sought dismissal
of the October 2017 suit.
5
We make this point notwithstanding the already pending duplicative action.

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¶31. What makes this case one of first impression is that Price filed her October complaint

four days before the expiration of the statutorily required sixty-day notice period. This alone

would have been grounds for dismissal, as the sixty-day notice period is mandatory. The

Supreme Court addressed premature filings as it relates to the Mississippi Tort Claims Act

(MTCA) in University of Mississippi Medical Center v. Easterling, 928 So. 2d 815 (Miss.

2006), and held:

[T]he 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 [plaintiff]
failed to comply with the ninety-day waiting period, her case must be
dismissed.

Id. at 820 (¶24) (emphasis added).

¶32. While the Easterling case dealt with the MTCA, the Supreme Court in Greenwood

Leflore Hospital v. Watson, 324 So. 3d 766 (¶9) (Miss. 2021), stated:

This Court repeatedly has applied the same standards of construction and
application to the Medical Malpractice Tort Reform Act as those applied to the
MTCA. Like the Medical Malpractice Tort Reform Act, the MTCA requires
written notice of a claim in advance of the filing of a lawsuit, a requirement
which also is strictly applied.

Id. at 768 (¶6) (emphasis added) (quoting Arceo v. Toliver, 19 So. 3d 67, 71-72 (¶¶16-17)

(Miss. 2009)).

¶33. If we apply the reasoning used by the Supreme Court discussed supra and allow Price

to get credit for the full two years and sixty days, this Court would essentially be rewarding

her for blatantly ignoring the sixty-day notice requirement that is to be “strictly applied.”

Price would benefit from the very statute that would have, and should have, been grounds

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for dismissal. The logic behind allowing medical malpractice plaintiffs to have two years and

sixty days to file their complaints makes sense because the plaintiffs are statutorily prohibited

from filing their suits during the sixty-day notice period. See Miss. Code Ann. § 15-1-57. In

this case, however, the reasoning does not apply because Price failed to wait the full sixty

days before filing her October complaint. As such, Price should not get the benefit of the full

sixty-day extension, and she is not entitled to add four days (the time remaining on the notice

period) in addition to the fourteen remaining on the statute of limitations when she filed her

notice of claim.

¶34. Thus, in a case such as this, where a plaintiff fails to wait the entire sixty-day period

between providing notice of claim and filing a complaint, the plaintiff is not entitled to

“credit” for the days remaining in the sixty-day notice period. The 120-day tolling period

begins on the day the plaintiff files suit, and at the end of the tolling period, the plaintiff is

entitled to add back only what may have remained between the filing of the notice and the

expiration of the statute of limitations.

¶35. Price’s argument that she had until February 20, 2018, to file suit would require that

she get credit for the fourteen days between her notice of complaint and the expiration of the

statute of limitations and the four days between her filing the October complaint and the end

of the sixty-day notice window. This would be inequitable and contrary to the Supreme

Court’s logic. While I recognize that this discussion does not affect the outcome of the case,

I felt compelled to correct the parties’ and circuit court’s misunderstanding and offer clarity

on this complex area of medical malpractice litigation.

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WESTBROOKS, J., JOINS THIS OPINION.

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