Bedford Health Properties, LLC v. Grace Hawthorne

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2005-IA-01274-SCT

BEDFORD HEALTH PROPERTIES, LLC,
HATTIESBURG MEDICAL PARK, INC.,
HATTIESBURG MEDICAL PARK MANAGEMENT
CORPORATION, MICHAEL E. McELROY, SR., M. E.
McELROY, JR., M. E. McELROY, INC., BEDFORD
CARE CENTER-MONROE HALL, LLC, BEDFORD
CARE CENTER-WARREN HALL, LLC, ROBERT
PERRY AND GINA SIMONETTI

v.

THE ESTATE OF CLIFTON WILLIAMS BY AND
THROUGH GRACE HAWTHORNE,
ADMINISTRATRIX OF THE ESTATE OF CLIFTON
WILLIAMS, FOR THE USE AND BENEFIT OF THE
ESTATE OF CLIFTON WILLIAMS, AND FOR THE
USE AND BENEFIT OF THE WRONGFUL DEATH
BENEFICIARIES OF CLIFTON WILLIAMS

DATE OF JUDGMENT: 06/07/2005
TRIAL JUDGE: HON. ROBERT B. HELFRICH
COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: BENJAMIN CONNELL HEINZ
WILLIAM R. LANCASTER
ANDREW CHRISTOPHER CLAUSEN
ATTORNEYS FOR APPELLEE: DOUGLAS BRYANT CHAFFIN
ANTHONY LANCE REINS
KENNETH LUKE CONNOR
SUSAN NICHOLS ESTES
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: AFFIRMED IN PART; REVERSED IN PART;
AND REMANDED - 11/02/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
 EN BANC.

EASLEY, JUSTICE, FOR THE COURT:

PROCEDURAL HISTORY

¶1. Grace Hawthorne (Hawthorne), the administratrix of the Estate of Clifton Williams (the

Estate), filed suit against numerous defendants on December 13, 2002, in the Circuit Court

of Forrest County, Mississippi. The complaint alleged various claims: negligence; medical

malpractice; malice and/or gross negligence; fraud; breach of fiduciary duty; statutory survival

claim; and statutory wrongful death. The named defendants in the original complaint were

Bedford Care Center of Hattiesburg, L.L.C.; Bedford Health Properties, L.L.C.; Hattiesburg

Medical Park, Inc.; Hattiesburg Medical Park Management Corporation; Nicole M. Bevon;

Michael E. McElroy, Sr.; Frances Griffin; Brenda J. Leone; Mike Hatten; John Does 1 through

10; and Unidentified Entities 1 through 10 (as to Conva-Rest of Hattiesburg), (collectively

“Original Defendants”).

¶2. Clifton Williams (Williams) had resided in a nursing home in Hattiesburg, Mississippi,

from 1993 until December 16, 2001. In their answers to the complaint, the Original

Defendants claimed that Williams had not resided at Conva-Rest of Hattiesburg, but instead

2
he had resided at Conva- Rest of Northgate located in Hattiesburg, Mississippi.1 All Original

Defendants filed their answers by February 14, 2003.

¶3. On July 16, 2003, the Estate filed a motion to substitute parties and leave to amend the

complaint. The motion also dismissed the incorrect Original Defendants. On August 4, 2003,

the trial court dismissed without prejudice Bedford Care Center of Hattiesburg, L.L.C.; Nicole

M. Bevon; Frances Griffin; Brenda J. Leone; and Mike Hatten, as defendants. On May 26,

2004, and July 27, 2004, the court docket indicated that a notice of hearing was scheduled for

July 30, 2004. On August 10, 2004, more than a year after the motion was filed, the trial court

granted the Estate leave to file an amended complaint to substitute defendants.

¶4. The Estate filed the amended complaint on August 26, 2004. The named defendants in

the amended complaint were as follows: Bedford Health Properties, L.L.C.; Hattiesburg

Medical Park, Inc.; Hattiesburg Medical Park Management Corporation; Michael E. McElroy,

Sr.; M. E. McElroy, Jr.; M. E. McElroy, Inc.; HMP Management; Bedford Care Center -

Monroe Hall, L.L.C.; Bedford Care Center - Warren Hall, L.L.C.; Robert Perry; Gina

Simonetti; John Does 3 through 10; and Unidentified Entities 5 through 10 (as to Conva-Rest

of Northgate, n/k/a/ Bedford Care Center - Monroe Hall and Bedford Care Center - Warren

1
The January 22, 2003, answer filed by Bedford Care Center of Hattiesburg L.L.C.;
Hattiesburg Medical Park Inc.; Brenda J. Leone; and Mike Hatten made numerous references
that Williams was a resident of Bedford Care Center of Northgate. The January 22, 2003,
answer and motion for more definite statement (as to count five) of defendants, Bedford
Health Properties, L.L.C.; Hattiesburg Medical Park Management Corporation; Nicole M.
Bevon; and Michael E. McElroy, Sr., references that Williams was a resident of Bedford Care
Center of Northgate. The February 14, 2003, answer filed by Frances Griffin also referenced
that Williams was a resident of Bedford Care Center of Northgate. A series of motions for
leave to file amended answers and amended answers filed between April 8, 2003, and April 21,
2003, also referenced Williams’ residency at Bedford Care Center of Northgate.

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Hall)(collectively “Amended Defendants”). Only four Original Defendants were named in both

the complaint and the amended complaint, those being, Bedford Health Properties, L.L.C.;

Hattiesburg Medical Park, Inc.; Hattiesburg Medical Park Management Corporation; and

Michael E. McElroy, Sr. The amended complaint asserted the same eight causes of action as

those in the original complaint.

¶5. Thereafter, the Amended Defendants filed a motion for summary judgment claiming that

the amended complaint did not relate back to the original complaint pursuant to M.R.C.P.

15(c). Following a hearing, on June 9, 2005, the Circuit Court of Forrest County denied the

Amended Defendants’ motion for summary judgment and granted certification for

interlocutory appeal to this Court. This Court granted the Amended Defendants’ petition to

bring this interlocutory appeal. See M.R.A.P. 5.

FACTS

¶6. Williams resided at Conva-Rest of Northgate, n/k/a Bedford Care Center - Monroe Hall

and Bedford Care Center - Warren Hall. He lived there from October 22, 1992 until

December 16, 2001. Williams died on December 28, 2001. Conva-Rest of Northgate and

Conva-Rest of Hattiesburg, n/k/a Bedford Care Center of Hattiesburg, L.L.C., are owned by

Bedford Health Properties, L.L.C., and managed by Hattiesburg Medical Park Management

Corporation. Michael E. McElroy, Sr., and his son, Michael E. McElroy, Jr., own a large

portion of these companies and are involved in a variety of capacities in other companies that

own and operate the nursing facilities.

¶7. In her deposition testimony, Hawthorne stated that she was the step-granddaughter of

Williams. During the first five years of Williams’ residency, Hawthorne visited him

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approximately four to six times a month. After Hawthorne’s grandmother died in 1995,

Hawthorne visited Williams approximately four times a month at the nursing home. She also

saw Williams at church each week. Hawthorne stated that the name of Williams’ wing was

Northgate or Warren Hall.

¶8. Hawthorne, as administratrix of the Estate, filed her complaint on December 13, 2002.

Later, Hawthorne determined that the incorrect facility and some personnel had been named

in the original complaint. The complaint mistakenly named Conva-Rest of Hattiesburg instead

of Conva-Rest of Northgate. Both of these facilities are located in Hattiesburg, Mississippi.

The Estate filed a motion to dismiss the incorrect original defendants which was granted by the

trial court. The Estate petitioned the trial court to amend the complaint and substitute the

correct parties pursuant to M.R.C.P. 15. The trial court granted the motion and allowed the

Estate thirty days to file the amended complaint. On August 26, 2004, the Estate filed the

amended complaint which named the correct nursing facility, owners, managers, and operators.

The trial court denied the Amended Defendants’ motion for summary judgment. Thereafter,

this Court granted the Amended Defendants’ petition for interlocutory appeal. On appeal, the

Amended Defendants raise the following issues:

I. Whether the Estate properly substitute d a defendant for a fictitious
party.

II. Whether the Estate’s amended complaint relates back to the date
the original complaint was filed pursuant to M.R.C.P. 15.

III. Whether the Estate’s claims are time barre d by Miss. Code Ann.
§ 15-1-36.

DISCUSSION

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¶9. This Court applies a de novo standard of review on appeal from a grant of summary

judgment by the trial court. Russell v. Orr, 700 So. 2d 619, 622 (Miss. 1997); Richmond v.

Benchmark Constr. Corp., 692 So. 2d 60, 61 (Miss. 1997); Merrimack Mut. Fire Ins. Co.,

v. McDill, 674 So. 2d 4, 7 (Miss. 1996); Northern Elec. Co. v. Phillips, 660 So. 2d 1278,

1281 (Miss. 1995). Rule 56(c) of the Mississippi Rules of Civil Procedure provides that

summary judgment shall be granted by a court if "the pleadings, depositions, answers to

interrogatories and admissions on file, together with affidavits, if any, show that there is no

genuine issue as to any material fact and that the mov ing party is entitled to a judgment

as a matter of law. M.R.C.P. 56(c) (emphasis added). The moving party has the burden of

demonstrating that there is no genuine issue of material fact in existence, while the non-

moving party should be given the benefit of every reasonable doubt. Tucker v. Hinds County,

558 So. 2d 869, 872 (Miss. 1990). “Issues of fact sufficient to require denial of a motion for

summary judgment obviously are present where one party swears to one version of the matter

in issue and another says the opposite.” Id.

¶10. Of importance here is the language of the rule authorizing summary judgment "where

there is no genuine issue of material fact." Simmons v. Thompson Mach. of Miss., Inc., 631

So. 2d 798, 801 (Miss. 1994). This Court has stated:

The presence of fact issues in the record does not per se entitle a party to avoid
summary judgment. The court must be convinced that the factual issue is a
material one, one that matters in an outcome determinative sense...the existence
of a hundred contested issues of fact will not thwart summary judgment where
there is no genuine dispute regarding the material issues of fact.

Simmons, 631 So. 2d at 801 (citing Shaw v. Burchfi eld, 481 So. 2d 247, 252 (Miss. 1985)).

The evidence must be viewed in the light most favorable to the non-moving party. See Russell,

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700 So. 2d at 622; Richmond, 692 So. 2d at 61; Merrimack Mut. Fire Ins. Co., 674 So. 2d

at 7; Northern Electric Co., 660 So. 2d at 1281; Simmons, 631 So. 2d at 802; Tucker, 558

So. 2d at 872.

¶11. To avoid summary judgment, the non-moving party must establish a genuine issue of

material fact within the means allowable under the Rule. Richmond, 692 So. 2d at 61 (citing

Lyle v. Mladinich, 584 So. 2d 397, 398 (Miss. 1991)). "If any triable issues of fact exist, the

lower court's decision to grant summary judgment will be reversed. Otherwise the decision is

affirmed.” Richmond, 692 So. 2d at 61.

I. Whether the Estate properly substituted a defendant for a fictitious party.

¶12. The Amended Defendants argue that the Estate failed to properly substitute the seven

new defendants named in the amended complaint for a fictitious party pursuant to M.R.C.P.

9(h). The Estate argues that the new defendants were not substituted pursuant to M.R.C.P. 9(h)

because it met the requirements of M.R.C.P. 15(c).

¶13. Mississippi Rule of Civil Procedure 9(h) provides:

(h) Fictitious Parties. When a party is ignorant of the name of an opposing
party and so alleges in his pleading, the opposing party may be designated by
any name, and when his true name is discovered the process and all pleadings and
proceedings in the action may be amended by substituting the true name and
giving proper notice to the opposing party.

(Emphasis added). Therefore, a proper amendment pursuant to Rule 9(h) will relate back to

the date of the filing of the original complaint. M.R.C.P. 15(c)(2); M.R.C.P. 9(h). In Doe v.

Mississippi Blood Services, Inc., 704 So. 2d 1016, 1019 (Miss. 1997), this Court held: “The

purpose of Rule 9(h) is to provide a mechanism to bring in responsible parties, known, but

unidentified, who can only be ascertained through the use of judicial mechanisms such as

7
discovery. It is not designed to allow tardy plaintiffs to sleep on their rights.” See also Wilner

v. White, 929 So. 2d 315, 322 (Miss. 2006); Walker v. Gallagher, 926 So. 2d 890, 896

(Miss. 2006). “[I]n order for Rule 9(h) to apply, there must be a substitution of a true party

name for a fictitious one.” Walker, 926 So. 2d at 896. In Womble v. Singing River Hosp.,

618 So. 2d 1252 (Miss. 1993), this Court set forth a guideline to determine if a party was

“ignorant” of the name of an opposing party pursuant to Rule 9(h).

It is a principle of general application, though, that ignorance of the opposing
party for fictitious party practice extends beyond mere lack of knowledge of the
opposing party's name. Even if the plaintiff knows the true name of the person,
he is still ignorant of his name if he lacks knowledge of the facts giving him a
cause of action against the that person.

Womble, 618 So. 2d at 1267. “Rule 9(h) exists for the benefit of a party who is ‘ignorant of

the name of an opposing party and so alleges in his pleadings.’” Wilner, 929 So. 2d at 322. This

Court has also acknowledged a reasonable diligence test when substituting unknown parties

pursuant the M.R.C.P. 9(h). Wilner, 929 So. 2d at 322-23 (citing Doe, 704 So. 2d at 1018-

19); see also Womble, 618 So. 2d at 1266-68.

Reasonable diligence is a standard only for determining the efforts made to
discover the true identity of a named fictitious party under Rule 9(h). Nguyen
v. Mississippi Valley Gas Co., 859 So. 2d 971 , 978-79 (Miss. 2002). “The
relation back privilege provided for fictitious parties under Rule 15(c)(2)
requires the plaintiff to actually exercise a reasonably diligent inquiry into the
identity of the fictitious party.” Doe, 704 So. 2d at 1019.

Wilner, 929 So. 2d at 323. In Doe, this Court found that Doe “merely substituted Mississippi

Blood Services, Inc., for a named party, United Blood Services.” Doe, 704 So. 2d at 1018.

Doe failed to substitute the new defendant for a John Doe defendant. Id. More recently in

Wilner, White was added as a new defendant to Wilner’s lawsuit. Wilner, 929 So. 2d at 317.

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Wilner simply added White’s name to the amended complaint and failed to substitute White’s

name for one of four “John Doe” defendants listed in the original complaint. Id. at 323. The

four “John Does” originally named in the complaint remained as defendants in the amended

complaint. Id. This Court found that Wilner improperly substituted White as a party pursuant

to M.R.C.P. 9 (h). Id. Like Doe, this Court in Wilner also determined that the appellants were

not ignorant of the appellees pursuant to M.R.C.P. 9(h), therefore, “Wilner [could] seek no

shelter from Rule 9(h), and her amended complaint [could not] relate back under Rule

15(c)(2).” Id.

¶14. This Court has interpreted “ignorance” of the opposing party in Rawson v. Jones, 816

So. 2d 367, 371 (Miss. 2001). In Rawson, this Court held that Jones was not ignorant of the

defendants based on her knowledge of the newly added defendants, a doctor and medical group,

since the death of her child. Id. In Womble, the plaintiff did not request the medical records

relating to Womble’s treatment until almost two years after her death. Womble, 618 So. 2d at

1266. The Court found that the plaintiff was not ignorant of the newly added defendants

because the plaintiff failed to exercise reasonable diligence in attempting to discover their

identities which would have been revealed by the medical records. Womble, 618 So. 2d at

1266.

¶15. Here, the Estate filed a motion to substitute parties on July 16, 2003. In the motion,

the Estate also requested leave to file an amended complaint and to dismiss some Original

Defendants without prejudice. The Estate’s motion for substitution stated:

Plaintiff, pursuant to M.R.C.P. 15, moves to substitute parties [sic] Defendant
[sic] and for leave to amend Plaintiff’s Complaint in this matter to be in the

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 form of Plaintiff’s First Amended Complaint attached hereto as Exhibit “A”.
Plaintiff’s amendments are necessary for the proper trial of all the issues in this
matter, and the proposed amendment will not prejudice Defendants. The
purpose of this amendment is to substitute Defendants, specifically, M. E.
McElroy, Inc., HMP Management, Bedford Care Center - Warren Hall, L.L.C.
and Bedford Care Center - Monroe Hall, L.L.C. in place of Unidentified Entities
1-4; and Michael E. McElroy, Jr., Gina Simonetti and Robert Perry in place of
John Does 1-3. Plaintiff will dismiss Defendants Bedford Care Center of
Hattiesburg, L.L.C., Nicole M. Bevon, Frances Griffin, Brenda J. Leone and
Mike Hatten from this action, without prejudice. The Mississippi Supreme
Court has held that amendments shall be freely given when justice so requires.
Estes v. Starnes, 732 So.[]2d 251 (Miss. 1999), citing Frank v. Dore, 635
So.[]2d 1369 (Miss. 1994). Thus, Plaintiff respectfully requests this Court to
permit the substitution of parties requested herein.

WHEREFORE, Plaintiff requests that this Court grant Plaintiff’s motion
to substitute M. E. McElroy, Inc., HMP Management, Bedford Care Center -
Warrren Hall, L.L.C. and Bedford Care Center - Monroe Hall, L.L.C. in place
of Unidentified Entities 1-4, and Michael E. McElroy, Jr., Gina Simonetti and
Robert Perry as John Does 1-3 in this action.

As such, the amended complaint failed to properly substitute any defendant for a fictitious

party under Rule 9(h). In other words, Rule 9(h) does not apply in this case.

¶16. We find that the motion to substitute clearly shows that the Estate simply substituted

one set of new defendants for some of the named parties in the original complaint much like

the facts in Doe. The Estate merely substituted M. E. McElroy, Inc.; HMP Management;

Bedford Care Center - Warrren Hall, L.L.C.; Bedford Care Center - Monroe Hall, L.L.C.;

Michael E. McElroy, Jr.; Gina Simonetti; and Robert Perry for the named parties in the original

complaint, Bedford Care Center of Hattiesburg, L.L.C.; Nicole M. Bevon; Frances Griffin;

Brenda J. Leone; and Mike Hatten. While the Estate, unlike the facts in Doe, replaced the

corresponding Unidentified Entities 1-4 and John Does 1-3 with the new defendants, the effect

is of no consequence. The Estate agreed to dismiss five Original Defendants named in the

10
original complaint. However, the Estate merely added the seven new defendants under the

guise of substituting them for the fictitious party names of Unidentified Entities 1-4 and John

Does 1- 3. In other words, the Estate sued five incorrect defendants in the original complaint.

The Estate sought to remedy the problem by dismissing these five Original Defendants and

erroneously substituting the new defendants as “fictitious” parties. However, the Estate

actually made a blatant change of these five Original Defendants for the seven new defendants,

not fictitious parties.

¶17. Further, the deposition testimony taken from Hawthorne indicated that she referred to

Williams’ place of residency as “Northgate” or “Warren Hall.” Hawthorne visited Williams

at this location about four to six times a month and saw him many Sundays at church. The

church was located across the street from Williams’ residence. This testimony indicated that

Hawthorne knew Williams resided at “Northgate” or “Warren Hall” and not at the Hattiesburg

location.2 Therefore, the name of the correct nursing care facilities and the corresponding

identities of the officers, licensees, and administrators clearly were known to Hawthorne at

the time of filing the complaint. The record is not clear concerning whether Hawthorne was

able to receive medical or corporate records. The deposition testimony indicated that

Hawthorne reviewed some kind of records, but it was not clear exactly what kind of records

to which she was referring in her deposition testimony. Clearly, the correct nursing facility

and therefore the correct employees were known to Hawthorne.

2
The record reflects that Conva-Rest of Northgate and Conva-Rest of Hattiesburg
changed ownership to Bedford Health Properties, L.L.C. on or before April 1, 2001.
ConvaRest Northgate then became Bedford Care Center - Warren Hall, L.L.C. and Bedford
Care Center - Monroe Hall, L.L.C.

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¶18. We find that since the amended complaint did not add true fictitious parties, then

pursuant to M.R.C.P. 15(c), M.R.C.P. 4(h) controls the time period for service of an amended

complaint. M.R.C.P. 4(h) concerns the time limit for service of a summons and provides:

If a service of the summons and complaint is not made upon a defendant within
120 days afte r the filing of the complaint and the party on whose behalf such
service was required cannot show good cause why such service was not made
within that period, the action shall be dismissed as to that defendant without
prejudice upon the court's own initiative with notice to such party or upon
motion.

(Emphasis added). See also Walker, 926 So. 2d at 895 (Walker received no notice within 120

days of filing the complaint and the amended complaint was filed more than two years after

original complaint). The record clearly demonstrated that the seven newly added defendants

in the amended complaint, those being, M. E. McElroy, Jr.; M. E. McElroy, Inc.; HMP

Management; Bedford Care Center - Monroe Hall, L.L.C.; Bedford Care Center - Warren Hall,

L.L.C.; Robert Perry; and Gina Simonetti, were not served with the amended complaint within

120 days of filing the original complaint. Indeed, the original complaint was filed on

December 13, 2002, and the amended complaint was filed on August 26, 2004. These two

events occurred over two and a half years apart, unequivocally outside of the 120 day time

frame imposed by M.R.C.P. 4(h). See Walker, 926 So. 2d at 895 Therefore, we must now

turn to Rule 15(c) to determine if the Amended Defendants had notice within 120 days of the

filing of the original lawsuit.

II. Whether the Estate’s amended complaint relates back to the date
the original complaint was filed pursuant to M.R.C.P. 15(c).

¶19. Some of the defendants were named in both the original complaint and the amended

complaint. Bedford Care Center of Hattiesburg, L.L.C.; Nicole M. Bevon; Frances Griffin;

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Brenda J. Leone; and Mike Hatten were named in the original complaint and later dismissed

by the trial court. Thus, those five Original Defendants were no longer party to this lawsuit.

However, Bedford Health Properties, L.L.C.; Hattiesburg Medical Park, Inc.; Hattiesburg

Medical Park Management Corporation; and Michael E. McElroy, Sr., (collectively “the four

Original/Amended Defendants”) were named in both the original and amended complaints.

Therefore, this Court now must consider whether the amended complaint related back to the

original complaint as to the seven newly added Amended Defendants and the four

Original/Amended Defendants that were named in both the original and amended complaint.

¶20. The Amended Defendants argue that the Estate failed to meet the requirements of Rule

15(c). The Estate contends that even if the substitution via Rule 9(h) is incorrect, then

provided the parties had notice and the other elements of Rule 15(c) are met, the amendment

is proper.

¶21. Mississippi Rule of Civil Procedure 15(c) provides:

(c) Relation Back of Amendments. Whenever the claim or defense asserted in
the amended pleading arose out of the conduct, transaction, or occurrence
s e t forth or attempted to be set forth in the original pleading, the
amendme nt relates back to the date of the original pleading. An
amendment changing the party against whom a claim is asserted relates back if
the foregoing provision is satisfied and, within the period provided by Rule 4(h)
for service of the summons and complaint, the party to be brought in by
amendment:

(1) has received such notice of the institution of the action that
the party will not be prejudiced in maintaining the party's defense
on the merits, and

(2) knew or should have known that, but for a mistake concerning
the identity of the proper party, the action would have been
brought against the party. An amendment pursuant to Rule
9(h) is not an amendment changing the party against whom

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 a claim is asse rte d and such amendment relates back to the
date of the original pleading.

(Emphasis added).

¶22. In Ralph Walker, Inc. v. Gallagher, 926 So. 2d 890, 894-95 (Miss. 2006), this Court

described the practical application of Rule 15(c). This Court held:

[W]hen the amended complaint does change a named defendant, as here, there
are two additional requirements: notice and knowledge by the defendant who
would be named. Id. These two additional requirements must be met within the
Rule 4(h) time period, or 120 days of the original complaint. Brown v.
Winn-Dixie Montgomery, Inc., 669 So.2d 92, 94 (Miss. 1996) (citing
Schiavone v. Fortune, 477 U.S. 21, 29, 106 S. Ct. 2379, 91 L. Ed. 2d 18
(1986)). Thus, it is not that one of the requirements of Rule 15(c) is that the
amendment change a party; instead, it is that only those amended pleadings
which do change a party are the pleadings which have three requirements. To
pinpoint the rule as it applies to this case, the three requirements of a complaint
that changes a named defendant are: (1) the claim in the amended complaint
must arise out of the same conduct, transaction, or occurrence as that set forth
in the original complaint; (2) the newly-named defendant must have received
notice of the action within the 120 days; and, (3) the newly-named defendant
must have or should have known that an action would be brought against him
within the 120 days unless a mistake existed as to the parties' identities.

¶23. The trial court granted leave for the Estate to amend its original complaint. M.R.C.P.

15(a) states, in part “leave shall be freely given when justice so requires.” The Amended

Defendants assert that the Estate (1) made significant and substantial changes in the conduct,

transaction, or occurrences which formed the basis of the claim set forth in the original

complaint, and (2) added new parties whose identities were known at the time of the filing of

the original complaint. In Issue I, we already determined that the seven new defendants added

by the amended complaint were not fictitious parties pursuant to Rule 9(h); therefore, there

is no exception of the automatic relation back to the original complaint.

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¶24. There are two major distinctions between the original complaint and the amended

complaint. The place of the alleged injuries and Williams’s residence are different in the

original complaint and the amended complaint. The original complaint incorrectly cited the

place of the alleged injuries and Williams’s residence as ConvaRest of Hattiesburg, whereas

the amended complaint correctly cited ConvaRest of Northgate as the place of the alleged

injuries and Williams’s residence. Furthermore, there are a number of changes in the named

licensees; administrators; and parties that owned, operated, and/or controlled the two nursing

facilities in the amended complaint.

¶25. The comments to M.R.C.P. 15(c) concerning the first test to determine whether an

amendment relates back to the original complaint is “whether the amended claim or defense

arose from the same ‘conduct, transaction, or occurrence’ as the original.” M.R.C.P. 15(c)

cmt. The distinction that the parties make in regard to whether the amended complaint relates

back to the original complaint is relatively simple. The Amended Defendants emphasize the

words and descriptions in the original and amended complaints. The original complaint

incorrectly listed Williams as residing in ConvaRest of Hattiesburg. The place of the alleged

injuries also were incorrect in the original complaint. The amended complaint correctly listed

Williams as residing at ConvaRest of Northgate. In addition, the Amended Defendants argue

that the original complaint contained incorrect names of individual administrators, licensees,

and directors. Therefore, the Amended Defendants cite to differences in locations and

identities in the original and amended complaints. In contrast, the Estate argues that the claims

are based upon the injuries that Williams allegedly suffered while a resident at the nursing

facility, not the location.

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¶26. Both parties cite to numerous cases to demonstrate whether the Estate met the conduct,

transaction, or occurrence test of M.R.C.P. 15(c). The Defendants rely on Parker v. Miss.

Game and Fish Comm’n, 555 So. 2d 725 (Miss. 1989) and Bracey v. Sullivan, 899 So. 2d

210 (Miss. Ct. App. 2005). In Parker, this Court noted that “the standard for determining

whether amendments qualify under Rule 15(c) is not simply an identity of transaction test . .

. the courts also inquire into whether the opposing party had been put on notice regarding the

claim or defense raised by the amended pleadings.” Parker, 555 So. 2d at 731. The amended

complaint in Parker sought to add a claim of malicious prosecution to the two claims in the

original complaint which were false imprisonment and false arrest. Id. at 726. This Court

found that the plaintiffs failed to meet the identity of transaction test. Id. at 731. The Court

reasoned that the “conduct, transaction, or occurrence” which gave rise to the false arrest and

false imprisonment claims in the original complaint was the arrest. Id. The “conduct,

transaction, or occurrence” which gave rise to the added malicious prosecution claim in the

amended complaint was their prosecution. Id. This Court held that the arrest and prosecution

were separate and distinct events which failed the identity of transaction test. Id. Furthermore,

this Court found that there was not proper notice because the original complaint failed to

inform of the criminal prosecution. Id. Therefore, the Court in Parker determined that the

amended claim failed the relation back doctrine of M.R.C.P. 15(c). Id.

¶27. In Bracey, the Court of Appeals likewise found that a proposed amended complaint did

not relate back to the original complaint. Bracey, 899 So. 2d at 212. Bracey’s original

complaint was based on a claim of malpractice for prescribing an ACE inhibitor which

16
allegedly caused injury and the death of Addie Mae Palmer. Id. Thereafter, Bracey sought to

amend the complaint by adding the doctor who prescribed the allopurinal. Id. at 213.

¶28. The Court of Appeals found that the original complaint put the doctor on notice of a

negligence claim due to prescribing ACE inhibitors, whereas the amended complaint put the

doctor on notice of a negligence claim for prescribing allopurinal. Bracey, 899 So. 2d at 214.

These claims were determined to be separate and distinct events which failed to satisfy the

identity of transaction test and failed to inform the doctor of a “particular occurrence.” Id. The

Court of Appeals also determined that the plaintiffs failed to satisfy the notice requirement.

Id. The Court of Appeals was not persuaded that the doctor received notice based on his

attorney receiving a copy of the amended complaint. Id. Therefore, the court held that the

plaintiffs failed to met the requirements of the relation back doctrine and the amended

complaint was barred by the statute of limitations. Id.

¶29. The Amended Defendants argue that the case before the Court today falls under the

holdings of Parker and Bracey. However, Parker is distinguishable from the facts of this

case because the plaintiffs in Parker added a new claim. Here, the Estate reasserted the same

eight claims in both the original and amended complaints. Accordingly, it did not add a new

claim, unlike Parker.

¶30. While the decisions of the Court of Appeals are not binding on this Court, the logic

supplied by the Court of Appeals in Bracey is flawed and not applicable when applied to the

case at hand. Here, the Amended Defendants cite Bracey in part for the proposition that the

“identity of transaction” requires the amended complaint to arise out of “the same nucleus of

17
common facts.” Bracey, 899 So. 2d at 213. The Court of Appeals in Bracey stated: “[T]he

Mississippi Supreme Court has noted in dicta that the same transaction or occurrence language

means that the claims arise from “the same nucleus of common facts.” Kiddy v. Lipscomb,

628 So. 2d 1355, 1357 (Miss. 1993).” However, the Kiddy case concerns Rule 20 joinder and

refers to the “same transaction and occurrence” language in Rule 20, not the language of Rule

15(c). Furthermore, this case, unlike joinder cases, has only one plaintiff, the Estate. This is

not a situation where various defendants have different products and plaintiffs have different

medical histories to consider. Here, the Estate is the sole plaintiff suing corporate entities,

named and served with both the original complaint and amended complaint, and individuals that

are all closely related to the nursing care of Williams. Clearly, this is not a situation at all

analogous to joinder. Furthermore, in Bracey the plaintiff was attempting to add a new

malpractice claim. Here, the Estate is not adding new claims as discussed above with Parker

and now Bracey.

¶31. In their reply brief, the Amended Defendants also cite Illinois Central Railroad Co.,

v. Adams, 922 So. 2d 787, 790 (Miss. 2006), for the minimum pleadings requirements. In

Adams, a plaintiff claimed exposure to hazardous materials at the Railroad’s yards, shops, and

other facilities. This Court held: “[A]t a minimum, a complaint must identify a litigable event

which entitles the particular plaintiff to recover. That is to say, the complaint must disclose,

in general terms, what each defendant did wrong to each plaintiff, and when and where the

alleged wrong took place.” Id. The plaintiff failed to stated where the yards, shops, and other

18
facilities were located. Here, the Estate gave the required information but made a mistake in

the location.

¶32. The Estate, on the other hand, argues that this Court’s holdings in Estes and Womble

are applicable to this case. In Estes, the plaintiff filed against Donald Starnes suit for injuries

resulting from a car accident. Estes v. Starnes, 732 So. 2d 251, 252-53 (Miss. 1999). More

than three years after the accident, Estes sought to amend her complaint to name David Starnes,

Donald’s son, as the driver of the vehicle that hit her. Id. at 253. The trial court denied the

motion to amend the complaint. Id. This Court held that the trial court erred by denying

Estes’s motion to amend the complaint. Id. We held that David and Donald had notice of the

action because of Estes’s negotiations with the Starnes’s insurance company and the suit filed

against Donald. Id. The Starnes also knew or should have known that David was the correct

party to Estes’s suit even though Estes’s named the incorrect person, Donald. Id. Further, this

Court found that there was no prejudice because Donald had legal representation since the suit

began in 1994. Id.

¶33. In Womble, the plaintiff sought to amend the complaint to add some doctors and an

emergency group. Womble, 618 So. 2d at 1265. Womble died on April 11, 1986, and suit was

filed on March 28, 1988. Id. at 1268. The trial court granted summary judgment in the

defendants’ favor because Dr. Longmire and Dr. Weatherall were added more than two years

and eight months after Womble’s death. Id. at 1265. Another defendant, Dr. Calhoun, was

added three years and seven months later. Id at 1266.

19
¶34. This Court held that pursuant to M.R.C.P. 15(c) the summary judgment was proper as

to Dr. Longmire and Dr. Weatherall. Womble, 618 So. 2d at 1268. The Court reasoned that

the insurance carrier for these two doctors sent correspondence to a lawyer retained to

represent them on April 20, 1988. Id. at 1267. The doctors received copies of the

correspondence and met with the lawyer. Id. at 1267-68.

¶35. This Court concluded that Dr. Longmire and Dr. Weatherall had notice of the suit and

knew or should have known that they would have been included in the lawsuit. This Court also

reversed the grant of summary judgment in favor of Emergency Room Group, Ltd. Womble,

618 So. 2d at 1268. While Dr. Longmire and Dr. Weatherall were officers of the corporation

in 1989, the annual report did not indicate the time period covered by the report. Id. The

records did not indicate that the doctors were on the board at the time of their notice of

Womble’s lawsuit. Id. Therefore, this Court held that there was a question as to the roles of

the two doctors at the time that they acquired notice of the lawsuit. Id. As for Dr. Calhoun,

this Court held that there was no indication that he “possessed awareness” that he would have

been included in the lawsuit and affirmed the summary judgment for only him. Id.

¶36. As for the cases cited by the Estate, the original suit in Estes was filed in 1994 and the

original suit was in Womble was filed in 1988. A 1998 advisory committee historical note

for M.R.C.P. 15 states “[e]ffective July 1, 1998, Rule 15(c) was amended to state that the

relation back period includes the time period permitted for service of process under Rule

4(h).” M.R.C.P. 4(h) provides for 120 days service of a summons and complaint. Estes was

decided in 1999 and Womble in 1993; however, the 1998 advisory note was not applicable

20
because the plaintiffs in Estes and Womble filed the complaints in 1994 and 1988, prior to the

1998 change in the rules. Today, the issue of newly added defendants in Estes and Womble

would fail because M.R.C.P. 15(c) imposes the time limitations of 120 days for service and

summons pursuant to M.R.C.P. 4(h) as the time period within which a newly added defendant

must have notice of the filing of the original complaint. See Walker, 926 So. 2d at 895.

However, we are left with this Court’s reasoning as to the notice requirements pursuant to

M.R.C.P. 15(c)(1) and (2).

¶37. The Amended Defendants assert that the Estate failed to meet the initial requirement

of Rule 15(c) that the claim asserted in the amended pleading arose out of the conduct,

transaction, or occurrence set forth or attempted to be set forth in the original

pleading. We disagree. They argue that the original complaint and the amended complaint rely

on two different factual basis for the claims. The original complaint stated:

1. Williams resided at Conva-Rest of Hattiesburg located at 10 Medical
Boulevard, Hattiesburg, Forrest County, Mississippi;
2. Nicole M. Bevon and Michael E. McElroy, Sr. were licensees of
ConvaRest of Hattiesburg;
3. Frances Griffin, Brenda J. Leone, Michael E. McElroy, Sr., and Mike
Hatten were all administrators of ConvaRest of Hattiesburg;
4. The defendants, including the fictitious parties, owned, operated and/or
controlled ConvaRest of Hattiesburg; and
5. The eight claims in the complaint arose out of the care and treatment of
Williams at ConvaRest of Hattiesburg.

On the other hand, the amended complaint contained the following information:

1. Williams resided at ConvaRest of Northgate located at 298 and 300
Cahal Street, Hattiesburg, Forrest County, Mississippi;
2. Michael E. McElroy, Jr. was the licensee of ConvaRest of Northgate;
3. Michael E. McElroy, Sr., Robert Perry and Gina Simonetti were all
administrators of ConvaRest of Northgate;

21
 4. The defendants, including the fictitious parties, owned, operated and/or
controlled ConvaRest of Northgate; and
5. The eight claims in the amended complaint arose out of the care and
treatment of Williams at ConvaRest of Northgate.

¶38. The original complaint and amended complaint had the same wording as to the conduct

asserted in the eight claims of (1) negligence by the corporations and licensees, (2) negligence

by the administrators, (3) medical malpractice, (4) malice and/or gross negligence, (5) fraud,

(6) breach of fiduciary duty, (7) statutory survival claim, and (8) statutory wrongful death

claim. A few of the names of the personnel and the location of the injuries were changed as

reflected in the above comparison of the original and amended complaint, but the conduct was

the same in both documents

¶39. We first will address the four Original/Amended Defendants that were named in both

the original complaint and the amended complaint, those being, Bedford Health Properties,

L.L.C.; Hattiesburg Medical Park, Inc.; Hattiesburg Medical Park Management Corporation;

and Michael E. McElroy, Sr. We find that the facts of this case are unique and merit close

review. Firs t, as stated above these four defendants were named in the original and amended

complaints. Second, one of the corporate entities, Bedford Health Properties, L.L.C., owned

both ConvaRest of Hattiesburg and ConvaRest of Northgate. Third, Michael E. McElroy, Sr.,

had 26% ownership interest in Bedford Health Properties, L.L.C, which owned ConvaRest of

Hattiesburg and ConvaRest-Northgate. Fourth, in addition to his ownership interest, Michael

E. McElroy, Sr., was served both the original and amended complaint in his capacity as licensee

of ConvaRest of Hattiesburg and administrator of ConvaRest - Northgate. Fifth, Michael E.

McElroy, Sr. and Jr., were the registered agents for all the corporate entities served in the

22
original complaint and amended complaint. Sixth, defense counsel was the same for all the

Original Defendants and the Amended Defendants. Seventh, the corporate entities all have the

same address. Finally, while the same corporate counsel may not be a decisive factor, it

imparts more weight here because of all the other intertwined relationships in this case.

¶40. Notwithstanding the unique circumstances of this case, the four Original/Amended

Defendants knew that there was simply a mistake in the location and corresponding personnel

of the Estate’s claims. In fact, the defendants pointed out the incorrect location of the nursing

home to the Estate in their answers. Furthermore, the injuries alleged to be suffered by

Williams were the same, and the same eight claims stated in the amended complaint were

stated in the original complaint. No new claim was added to the amended complaint.

¶41. Mississippi is a notice pleading state. Estate of Stevens v. Wetzel, 762 So. 2d 293, 295

(Miss. 2000). M.R.C.P. 8 governs general pleadings. The Court in Wetzel held:

While M.R.C.P. 8 has eliminated the technical forms of pleadings required in
years past, notice pleadings are still required to place the opposing party on
notice of the claim being asserted. No magic words are required by the Rules
of Civil Procedure; however, this Court has previously stated:

Under Rule 8 of the Mississippi Rules of Civil Procedure, it is
only necessary that the pleadings provide sufficient notice to the
defendant of the claims and grounds upon which relief which is
sought.

Wetzel, 762 So. 2d at 295.

¶42. The Estate did not change the amended complaint to add a new claim. The premise of

the lawsuit, to sue the owners, managers, and operators of a nursing facility for injuries

suffered by Williams, remained the same.

23
¶43. The Amended Defendants argue that the amended complaint failed to meet an identity

of transaction because the amended claims did not arise from the same nucleus of common

facts. As discussed, the cases relied on by the Amended Defendants are distinguishable from

the case at hand. Unlike those cases which concerned a significant change in the pleadings by

adding a new claim, the Estate did not change the eight claims stated in the original complaint.

Importantly, Bedford Health Properties, L.L.C., owned both ConvaRest of Hattiesburg and

ConvaRest of Northgate. Also, Michael E. McElroy, Sr., one of the original named defendants,

was an administrator of ConvaRest - Northgate and a licensee of ConvaRest of Hattiesburg. In

addition, the four Original/Amended Defendants had notice of the lawsuit because they were

named and served the original complaint. The Estate was made aware of the error by the

Original Defendants which included the four Original/Amended Defendants. Furthermore, all

the Original Defendants and Amended Defendants used the same defense counsel for their

representation. As such, there has been continuous legal representation.

¶44. We find that as to the four Original/Amended Defendants, the amended complaint

relates back to the date of the original complaint. These four Original/Amended Defendants

were party to both the original and amended complaints. We find that the trial court correctly

determined that the amended complaint related back to these four Original/Amended

Defendants and properly allowed the amendment as to these four Original/Amended

Defendants. We also find that the conduct, transaction, or occurrence test of Rule 15(c) is

satisfied. We find that the change in location from ConvaRest of Hattiesburg to ConvaRest

Northgate met Rule 15(c).

24
¶45. This Court now turns to the seven newly added Amended Defendants and whether these

individuals and entities had notice of the original lawsuit pursuant to Rule 15(c)(1) and (2).

These newly added Amended Defendants were M. E. McElroy, Inc.; HMP Management;

Bedford Care Center - Monroe Hall, L.L.C.; Bedford Care Center - Warren Hall, L.L.C.;

Michael McElroy, Jr.; Robert Perry; and Gina Simonetti.

¶46. This Court’s analysis in Walker, is applicable to the facts before us today. When

analyzing Rule 15(c)(1) and (2) “the newly-named defendant must have received notice of the

action within the 120 days; and, [] the newly-named defendant must have or should have known

that an action would be brought against him within the 120 days unless a mistake existed as to

the parties' identities.” Walker, 926 So. 2d at 894-95. Therefore, the newly added defendants

had to have notice, not service of process, of the lawsuit within 120 days of filing the original

complaint.

¶47. This Court recently addressed the application of the notice requirement of Rule 15(c)

in Walker. That case involved a collision between a vehicle, driven by Gallagher, and a

eighteen- wheeler tractor and trailer rig. Walker, 926 So. 2d at 892. The driver of the tractor

truck, Anders, allegedly ran a red light and struck Gallagher’s vehicle. Id. Anders, Randy Hunt,

and Randy Hunt Trucking, Inc., the owner of the eighteen-wheeler, were sued within the three

year statute of limitations by Gallagher. Id. During the discovery process, Gallagher learned

that Ralph Walker, Inc. (Walker), owed the trailer rig that was involved in the collision. Id.

Anders was delivering a load to Walker’s business at the time of the accident. Id. In addition,

Anders was hauling loads pursuant to Walker’s directions during this time period. Id. Walker

25
also had an agreement with Randy Hunt Trucking, Inc., to be in charge of dispatching the

eighteen-wheeler driven by Anders. Id.

¶48. Once Gallagher learned of Walker’s existence, he filed an amended complaint to add

Walker, almost five years after the collision, to the lawsuit. Id. The circuit court granted leave

to file the amended complaint and denied Walker’s subsequent motion to dismiss for failure

to file within the statute of limitations. Id. This Court reversed the circuit court’s decision

to deny the motion to dismiss, and rendered judgment in favor of Walker. Id.

¶49. After analyzing whether Walker received notice of the lawsuit and whether Walker knew

or should have known that a lawsuit would have been brought against him by Gallagher pursuant

to Rule 15 (c)(1) and (2), this Court found that Walker did not have notice or knowledge of the

lawsuit being filed within 120 days of the filing of the original complaint. Walker, 926 So.

2d at 897.

¶50. To reach that decision, this Court first considered Rule 15(c)(1). This Court

determined that Walker received “no formal notice” of the lawsuit between the filing of the

complaint on March 21, 2002, and April 2004, when he was named as a defendant in the action.

Id. at 895. In fact, this Court found that Gallagher “offer[ed] no proof of evidence outside of

s peculative theories that Walker had sufficient notice to meet the requirements of Rule

15(c)(1).” Id. (Emphasis added). This Court further held: “No proof has been presented of

any notice to Walker whatsoever within the 120 days after the original complaint was filed, and

we cannot assume Walker had notice sufficient to satisfy the rule based solely on speculation.”

Id. at 895-96.

26
¶51. This Court then determined that Gallagher failed to meet the requirements of Rule

15(c)(2). The purpose of the second prong of Rule 15(c) “is to allow some leeway to a party

who made a mistake, so long as the party does what is required within the time period under

the rule.” Walker, 926 So. 2d at 896. Gallagher argued numerous reasons why Walker knew

or should have known of the lawsuit within 120 days of its filing, such as, damage to the trailer

from the collision, a delay in the delivery on the day of the collision, possible insurance

claims, the business relationship between Walker and the other defendants, and a reasonable

person should assume litigation would result from a collision between an eighteen-wheeler and

a car. Id. This Court found that Gallagher’s arguments were “assumptions” and held:

None of [Gallagher’s] theories convince us that Walker knew, or should have
known, within 120 days of the complaint, a lawsuit existed. Gallagher makes
many great leaps in his reasoning, relying almost entirely on assumptions. The
litigation here did not begin until almost three years after the accident, and the
existence of damage to Walker’s trailer is simply insufficient to prove
Walker’s knowledge of litigation. A delay in delivery and the existence
of a busine s s re lationship also do not automatically rise to the level or
putting Walker on notice of the existence of a lawsuit, particularly when
Walker was not brought into the proceedings until almost two years after the
complaint was filed.

Id. Therefore, this Court found that the damage to Walker’s trailer, a delay in the delivery on

the date of the collision to Walker’s business, and the business relationship between Walker

and the other defendants was insufficient notice to Walker of the filing of the lawsuit.

¶52. Here, Williams died on December 28, 2002. The original complaint was filed on

December 13, 2002. The Original Defendants all filed their answers no later than February 14,

2003. In their answers, the Defendants stated that Williams resided at Conva-Rest of

Northgate and not Conva- Rest of Hattiesburg. On July 16, 2003, the Estate filed a motion to

27
substitute and leave to amend the complaint. A draft amended complaint was attached to the

motion. The trial court granted leave to file the amended complaint on August 10, 2004. The

Estate filed the amended complaint on August 26, 2004. Therefore, the amended complaint

was filed outside the 120 day time period provided in Rule 4(h). At the summary judgment

hearing and on appeal, the Estate argued that the Defendants had notice of the lawsuit. There

was no distinction made between the four original/Amended Defendants and the seven newly

added Amended Defendants. The Amended Defendants argued that the events that prompted

the filing of the amended complaint did not arise out of the same conduct, transaction, or

occurrence. In addition, the Amended Defendants argued that there was no mistake in the

identities of the newly added Defendants because Hawthorne knew the names of the correct

Defendants.

¶53. As in Walker, we find that there is no proof pursuant to Rule 15(c)(1) that all of the

seven newly-added Amended Defendants had formal notice of the lawsuit between the filing

of the original complaint on December 13, 2002, and the filing of the amended complaint in

August 2005.

¶54. We find that as to Bedford Care Center - Monroe Hall, L.L.C.; Bedford Care Center -

Warren Hall, L.L.C.; M. E. McElroy, Inc.; HMP Management3; and Michael McElroy, Jr.,

these five newly added Amended Defendants had notice of the lawsuit within 120 days of the

filing of the original complaint. Michael McElroy, Jr., was the registered agent for service of

3
The record reflects that no answer was made by HMP Management. There are
answers from Hattiesburg Medical Park Management Corporation and Hattiesburg Medical
Park, Inc. Neither party asserts that HMP Management is actually the same company as either
Hattiesburg Medical Park Management Corporation or Hattiesburg Medical Park, Inc.,
therefore, HMP Management will be treated by this Court as a separate legal entity.

28
process for Bedford Health Properties, L.L.C., named in the original complaint and, therefore,

would have had knowledge of the original complaint. He also had a 24.5% interest in Bedford

Health Properties, L.L.C. His father, Michael McElroy, Sr., had a 26% ownership interest in

Bedford Health Properties, Inc. Furthermore, Bedford Care Center - Monroe Hall and Bedford

Care Center- Warren Hall were wholly owned by Bedford Health Properties, Inc., and have

knowledge of the original complaint by way of its corporate relationship.

¶55. As to M. E. McElroy, Inc., and HMP Management, both these companies had the same

corporate address as the other properly noticed corporate Amended Defendants. In addition,

the record indicates that M. E. McElroy, Inc., and HMP Management operated and managed

ConvaRest of Northgate, respectively, until at least March 31, 2001. Michael McElroy, Sr.,

was president of M. E. McElroy, Inc., had 100% ownership of ConvaRest of Northgate and had

100% ownership of HMP Management at that time. Also, the record indicates that M. E.

McElroy, Inc., d/b/a ConvaRest of Northgate, owned the facility in question for some period

of time prior to April 2001.

¶56. As to Robert Perry and Gina Simonetti, there is no proof that these individuals would

have known of the lawsuit within 120 days of filing the complaint. The record provides no

proof that Perry and Simonetti were notified by any of the other Original or Amended

Defendants that the lawsuit existed. While it is highly likely that a current administrator like

Perry would be informed of litigation concerning a former resident, there is absolutely no

proof in the record to demonstrate notice beyond pure speculation and assumption. As a

former administrator, Simonetti may have been informed of the litigation. However, there also

is no proof of notice in the record beyond speculation. Again, to determine that these newly

29
added Amended Defendants had notice within 120 days of the filing of the complaint would

amount to pure speculation on the part of this Court. This is in line with the logic of Walker.

In Walker, this Court found no notice or constructive notice to Walker, even though, Walker’s

trailer was damaged in the collision and Anders was delivering goods to Walker at the time of

the collision. Furthermore, Anders was in effect working for Walker at the time of the

collision since Walker had a business relationship with Hunt Trucking, Inc., and Walker was

in charge of dispatching Anders for trucking jobs. This Court could have easily found that

Walker had notice or constructive notice of the lawsuit based on the facts and the strong ties

between Walker and the other defendants. In addition, Rule 15(c)(1) and (2) does not address

the notice requirement in terms of constructive notice.

¶57. As for Rule 15(c)(2), the Estate argues that the “Defendants” knew or should have

known that but for a mistake in identity an action would have been brought against them. The

Estate bases its argument on the assertion that the “Defendants” stated in their answers that

Williams was a resident of ConvaRest of Northgate and not a resident of ConvaRest of

Hattiesburg. While this assertion is true of the four Original Defendants, the seven newly

added Amended Defendants were not served with process at that point and therefore, made no

answer to that effect.4 As for Bedford Care Center - Warren Hall; Bedford Care Center -

Monroe Hall; Michael McElroy, Jr.; M. E. McElroy, Inc.; and HMP Management, they knew

or should have known but for the mistake of the Estate that they would have been named as the

correct parties to the lawsuit. Michael McElroy, Jr., was on notice as the registered agent for

4
The seven newly added Amended Defendants have answered the Amended Complaint,
except HMP Management as noted in footnote 3.

30
some of the Original Defendants, his father was an registered agent for some of the

corporations and was served with process individually. Both men had ownership interests in

the nursing homes, both men held offices in some of the newly added corporations, and

Michael McElroy, Sr., owned HMP Management. As for the other two Amended Defendants,

Perry and Simonetti, we have already determined that they did not meet the requirement of

Rule 15(c)(1), therefore, we do not need to address them further.

¶58. Accordingly, we find that Bedford Care Center - Warren Hall; Bedford Care Center -

Monroe Hall; Michael McElroy, Jr.; M. E. McElroy, Inc.; and HMP Management met the

requirements of Rule 15 (c)(1) and (2) and were correctly added Amended Defendants.

However, we find that Robert Perry and Gina Simonetti failed to meet the requirements of

Rule 15 (c)(1) and (2) and were not correctly added Amended Defendants.

III. Statute of Limitations

¶59. The Amended Defendants also raise an issue of statute of limitations in regard to the

amended complaint. However, as stated in Issue II, the trial court did not err by allowing the

amended complaint solely as to the four Original/Amended Defendants and five of the

Amended Defendants. As such, the four Original/Amended Defendants and five Amended

Defendants remain. Based on the discussion in Issue II, the amendment as to the four

Original/Amended Defendants and the five Amended Defendants related back to the original

complaint pursuant to M.R.C.P. 15(c). Accordingly, the amended complaint was not barred

by the statute of limitations.

CONCLUSION

31
¶60. For the foregoing reasons, the judgment of the Forrest County Circuit Court is affirmed

in part and reversed in part, and this case is remanded to the circuit court for further

proceedings consistent with this opinion. The Circuit Court of Forrest County is affirmed as

to its finding that the amended complaint relates back to the four Original/Amended

Defendants, those being, Bedford Health Properties, L.L.C.; Hattiesburg Medical Park, Inc.;

Hattiesburg Medical Park Management Corporation; and Michael McElroy, Sr. The Circuit

Court of Forrest County also is affirmed as to its finding that the amended complaint relates

back to five of the newly added Amended Defendants, those being, M. E. McElroy, Inc.; HMP

Management; Bedford Health Care - Monroe Hall, L.L.C.; Bedford Health Care - Warren Hall.

L.L.C.; and Michael McElroy, Jr. The Circuit Court of Forrest County is reversed as to its

finding that the amended complaint relates back to Robert Perry and Gina Simonetti.

Therefore, as to the four Original/Amended Defendants and five of the newly added Amended

Defendants, the case is remanded to the Circuit Court of Forrest County for further

proceedings consistent with this opinion.

¶61. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

SMITH, C.J., WALLER, P.J., CARLSON AND DICKINSON, JJ., CONCUR.
COBB, P.J., AND GRAVES, J., CONCUR IN PART AND DISSENT IN PART WITHOUT
WRITTEN OPINION. DIAZ, J., DISSENTS WITHOUT SEPARATE WRITTEN
OPINION. RANDOLPH, J., NOT PARTICIPATING.

32