source: Caselaw Access Project

author: WALLER, CHIEF JUSTICE, FOR THE COURT: KING, JUSTICE, DISSENTING:

license: Public Domain

text:
    Christopher POLLAN v. Andrew WARTAK, M.D., Individually and d/b/a Internal Medical Associates; Clay County Medical Corporation d/b/a North Mississippi Medical Center-West Point; Angie Turnage, C.L.P.N.; William C. Larmour, R.N.; and Ashley Thomas Davis, R.N.
    NO. 2015-IA-01762-SCT
    Supreme Court of Mississippi.
    December 7, 2017 Rehearing Denied February 22, 2018
    ATTORNEYS FOR APPELLANT: DOLTON W. McALPIN, ALAN D. LANCASTER, JOHN M. MONTGOMERY, JOHN STUART MOORE
    ATTORNEYS FOR APPELLEE: JOHN MARK McINTOSH, DAVID W. UPCHURCH, JOHN G. WHEELER
    EN BANC.
   WALLER, CHIEF JUSTICE, FOR THE COURT:

¶ 1. Christopher Pollan filed a medical negligence action against Dr. Andrew Wartak, North Mississippi Medical Center-West Point; Angie Turnage, LPN; Chase Larmour, RN; and Ashley Thomas, LPN, claiming that the defendants' medical negligence caused the death of his mother, Shirley Pollan. The trial court granted partial summary judgment to the defendants, finding that Pollan's survival claims were barred by the statute of limitations. Finding no error, we affirm the trial court's judgment.

FACTS

¶ 2. On October 8, 2008, fifty-five-year-old Shirley Pollan ("Shirley") was taken to the emergency department at North Mississippi Medical Center-West Point ("NMMC-West Point") with complaints of dizziness, vomiting, and an inability to stand. Blood tests revealed that her blood sodium level was a critically low 97 mEq/L. Intravenous fluids were administered to correct her sodium levels, and she was admitted to the intensive care unit to the service of Dr. Andrew Wartak. During her time in intensive care, Shirley continued to receive IV fluids to normalize her blood sodium levels. According to the existing guidelines at the time, blood sodium levels should not be increased by more than ten to twelve points in the first twenty-four hours and eighteen points in the first forty-eight hours. Shirley's medical records show that her sodium levels were increased by nineteen points in the first fifteen hours and twenty-one points in approximately thirty-one hours.

¶ 3. On October 11, 2008, at Pollan's request, Shirley was transferred to NMMC-Tupelo, where she remained until October 14, 2008. Her diagnosis upon discharge was "severe hyponatremia secondary to syndrome of inappropriate antidiuretic hormone with mental status changes." It was noted in her discharge record that "she might be suffering from central pontine myelinolysis," or CPM, a brain cell dysfunction caused by the destruction of the myelin sheath covering the nerve cells in the pons, in the middle of the brain. CPM can be caused by a rapid rise in the body's sodium levels.

¶ 4. Shirley was incapable of returning to work after her discharge from NMMC-Tupelo, and over the next two years she was treated for numerous behavioral and neurological issues. On August 9, 2010, Shirley visited her primary care physician, Dr. Clifton Story, at the Longest Student Healthcare Center in Starkville. Dr. Story's record of this visit provides, in pertinent part:

To summarize, she had been well prior to October 2008, working as a teller at the bank where she worked many years. She had gotten acutely ill, went to the ER and was found to be hyponatremic. During the hospitalization her sodium was corrected quickly. She deteriorated in the hospital, apparently becoming nearly comatose and was transferred to Tupelo at the insistence of her son.
She did improve subsequently but has never returned to her normal state of being and is now disabled due to the mental deficits and inability to perform the task required of her to work at the bank. Her only medical diagnosis really has been SIADH and polydipsia and some psychosis initially following the hospitalization. I think it is reasonable to get a second opinion as to SIADH may have been the initial cause of the hyponatremia. However, I think the sodium was corrected quickly and she may have developed [CPM] which may have led to her chronic disability that she is now managing.

Dr. Story's records also indicate that Shirley was "able to articulate well with normal/speech language" during the visit and "[had] appropriate memory for current and past events." Dr. Story referred Shirley to Feiyu Chen, M.D., a neurologist at the Semmes Murphey Clinic in Memphis.

¶ 5. On August 24, 2010, prior to Shirley's visit at the Semmes Murphey Clinic, a patient profile was filled out either by Shirley or someone on her behalf. The patient profile describes Shirley's "chief complaint" as follows:

Fatigue and delirium initially 10/08/08 and discovered had suffered from a critical sodium and potassium drop that led to a coma at the North MS Health (Clay County Medical Center), West Point, MS 10/08/08. Transferred to critical care unit North MS Health Tupelo, MS. Family told best case scenario she was not expected to leave the hospital because of in such severe condition upon arrival from the West Point hospital and that the best case scenario would probably be a vegetative state the rest of her life if she were to be able to leave the hospital. Indicated that they appeared misdiagnosed, brain flooded with IV (liquids) too quickly and then removed too quickly based on the safe levels, it was too rapid of administration trying to increase the levels. Behavioral issues resulted and she was nowhere close to performing a normal life compared to time prior to this disabling condition.

Shirley was seen by Dr. Chen on the following day. Dr. Chen's report from this visit indicates that he initially was suspicious of CPM, but Shirley was "doing fine right now from a neurological standpoint." Dr. Chen ultimately did not think that Shirley had CPM.

¶ 6. Shirley's health continued to decline until she ultimately passed away on January 18, 2011. An autopsy was performed on January 24, 2011, but the autopsy report was not issued until July 11, 2011. The report lists Shirley's cause of death as "[CPM] following rapid sodium correction."

¶ 7. Pollan filed a wrongful death suit against the defendants on January 10, 2013, in the Clay County Circuit Court. The complaint alleged that the defendants negligently failed to render proper medical treatment to Shirley specifically concerning her blood sodium levels, which caused her to develop CPM. Pollan's claims for damages were separated into wrongful death claims, survival claims, and estate claims. Each of the defendants filed an answer to the complaint in March 2013, and each defendant raised the statute of limitations as a defense.

¶ 8. On March 6, 2015, after discovery had concluded, Dr. Wartak filed a Motion for Partial Summary Judgment, which the other defendants joined. The defendants argued that the statute of limitations for Pollan's survival claims began to run, at the earliest on October 14, 2008, when Shirley was discharged from NMM-Tupelo. Alternatively, the defendants alleged that, at the latest, the statute of limitations began to run on November 17, 2008, when Shirley visited her primary physician and attributed her neurological problems to her admission to NMMC-West Point. Because Pollan's complaint was filed more than two years after either of those dates, the defendants claimed that Pollan's survival claims were time-barred. In response, Pollan asserted that the statute of limitations began to run no earlier than July 11, 2011, when Shirley's autopsy report confirmed that her cause of death was CPM.

¶ 9 On November 3, 2015, the trial court issued an order granting the defendants' motion for partial summary judgment. The trial court determined that the statute of limitations for Pollan's survival claims had begun to run on August 24, 2010, when Shirley's patient profile at the Semmes Murphey Clinic identified her treatment at NMMC-West Point as the cause of her neurological deficiencies:

While it appears that Ms. Pollan did not know that she suffered specifically from [CPM], this patient profile clearly shows that on August 24, 2010 she (1) knew that she was suffering from a neurological deficiency; and (2) she at least suspected that this deficiency was the result of the procedure performed at North Mississippi Medical Center-West Point.

Because Pollan's complaint was not filed within two years of that date, the trial court held that Pollan's survival claims were time-barred.

¶ 10. This Court granted Pollan's petition for interlocutory appeal on May 11, 2016. On appeal, Pollan raises three issues. First, he claims that the trial court erred in failing to consider his argument that the defendants waived their statute-of-limitations defense. Second, he contends that the trial court misapplied the discovery rule by finding that the statute of limitations began to run when Shirley suspected that her neurological deficiencies were the result of her treatment at NMMC-West Point. And finally, he argues that the date on which Shirley discovered her injury is a genuine issue of material fact that precludes summary judgment. Because the second and third issues are so closely related, we have combined them in our discussion below.

STANDARD OF REVIEW

¶ 11. The standard of review for the waiver of an affirmative defense is abuse of discretion. Kinsey v. Pangborn Corp. , 78 So.3d 301, 306 (Miss. 2011). Under this deferential standard, we must affirm the trial court's ruling unless there is a firm and definite conviction that the trial court committed clear error. Ashmore v. Mississippi Auth. on Educ. Television , 148 So.3d 977, 982 (Miss. 2014).

¶ 12. The standard of review for a trial court's grant of summary judgment is de novo. Webb v. Braswell , 930 So.2d 387, 395 (Miss. 2006). Summary judgment is proper "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Miss. R. Civ. P. 56(c). The reviewing court must view the evidence in the light most favorable to the nonmovant, and the moving party bears the burden of showing the absence of a genuine issue of material fact. Duckworth v. Warren , 10 So.3d 433, 436 (Miss. 2009). The running of the statute of limitations is an issue appropriate for resolution via summary judgment if there exists no genuine issue of material fact concerning whether the statute has run. MS Comp Choice, SIF v. Clark, Scott & Streetman , 981 So.2d 955, 962 (Miss. 2008).

DISCUSSION

I. Whether the trial court erred in ruling that the defendants had not waived the statute-of-limitations defense.

¶ 13. On appeal, Pollan appears to present two different arguments concerning the defendants' alleged waiver of their statute-of-limitations defense. First, from a procedural standpoint, Pollan alleges that the trial court erred in failing to consider his waiver argument. Next, turning to the merits of the issue, Pollan argues that the defendants' unjustified delay in pursuing their statute-of-limitations defense, coupled with their active participation in the litigation process, served as a waiver of that defense.

¶ 14. We find both arguments to be without merit. While we cannot say that its analysis was detailed, the trial court did not ignore Pollan's waiver argument. The transcript of the summary-judgment hearing reflects that the trial court considered and rejected the argument, finding that it was in the parties' interest to engage in discovery in order to develop the issue. We do not find that the trial court abused its discretion by failing to specifically mention Pollan's waiver argument in its order granting partial summary judgment to the defendants. In response to the defendants' motion for partial summary judgment, Pollan claimed that the defendants had unreasonably delayed their pursuit of the statute-of-limitations defense by actively participating in the litigation for more than two years after filing their answers to the complaint. During that time, Pollan alleged that the defendants engaged in extensive discovery unrelated to the statute-of-limitations issue. Accordingly, Pollan argued that the defendants had waived their statute-of-limitations defense. At the hearing on the defendants' motion for partial summary judgment, Pollan attempted to argue the issue of waiver, but the trial court rejected his argument, reasoning:

I've been on the bench 13 years now going on. I don't think I've routinely dismissed things upon the filing of a lawsuit. I think my history has been to let things develop and then-you know, out of fairness to both sides.
So I will tell you off the bat, I'm not inclined to say that I'm not going to let somebody claim the statute of limitations when I think it's to everybody's benefit to be able to engage in some discovery and try to figure out what really happened.
So, I'm not inclined to do that. Because then if I send that message then, every time ya'll file a lawsuit, they're going to rush right in and say, Judge, statute of limitations, let's dismiss this thing. Then I'm having to try and guess totally blind.
And I don't think that that's a good thing. So, I would move along from that argument. Because that one is not going to carry the day with me. Maybe with the Supreme Court, but we (sic) me, not so much."

Pollan responded, "Your honor, it's totally in the Court's discretion of that .... And the Supreme Court is not going to overrule that decision. I feel very confident about that."

¶ 15. As for the substance of Pollan's claim, the instant case is a factually complex medical malpractice action involving multiple defendants and raising several categories of claims, which required factual development beyond the initial pleadings. This Court previously has found that a defendant did not waive its statute-of-limitations defense by engaging in discovery to develop that defense. See Empire Abrasive Equip. Corp. v. Morgan , 87 So.3d 455, 461 (Miss. 2012) (while defendants participated in litigation for more than two years before moving for summary judgment on statute-of-limitations grounds, this Court held that "discovery [was] necessary for the defendants to determine the nature of their defense."). Here, the defendants bore the burden of proving that the statute of limitations for Pollan's survival claims had expired, and they relied directly on evidence obtained in discovery to support their argument. In addition, Pollan has failed to show how he was prejudiced by the defendants' delay in pursuing their statute-of-limitations defense. See MS Credit Ctr., Inc. v. Horton , 926 So.2d 167, 180 n.7 (Miss. 2006) (noting that prejudice to the nonmoving party is a factor to be considered in addressing waiver). Accordingly, we hold that the trial court did not abuse its discretion in failing to find that the defendants had waived their statute-of-limitations defense.

II. Whether the trial court erred in finding that the statute of limitations for Pollan's survival claims began to run on August 24, 2010.

¶ 16. The application of the statute of limitations is a question of law. Stringer v. Trapp , 30 So.3d 339, 341 (Miss. 2010). "Occasionally the question of whether the suit is barred by the statute of limitations is a question of fact for the jury; however, as with other putative fact questions, the question may be taken away from the jury if reasonable minds could not differ as to the conclusion." Smith v. Sanders , 485 So.2d 1051, 1053 (Miss. 1986). The party asserting a statute-of-limitations has the burden of proving it. Id.

¶ 17. Mississippi law imposes a two-year limitations period on claims for injuries or death caused by medical negligence:

[N]o claim in tort may be brought against a licensed physician, osteopath, dentist, hospital, institution for the aged or infirm, nurse, pharmacist, podiatrist, optometrist or chiropractor for injuries or wrongful death arising out of the course of medical, surgical or other professional services unless it is filed within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered.

Miss. Code Ann. 15-1-36(2) (Rev. 2012). The focus of Section 15-1-36(2)"is upon the time that the patient discovers, or should have discovered by the exercise of reasonable diligence, that he probably has an actionable injury." Smith v. Sanders , 485 So.2d 1051, 1052 (Miss. 1986). Thus, the statute of limitations does not begin to run until the plaintiff "(1) has knowledge of the injury, (2) has knowledge of the cause of the injury, and (3) knows the relationship between the practitioner and the injury." Stringer v. Trapp , 30 So.3d 339, 342 (Miss. 2010) (citing Sanders , 485 So.2d at 1053 ). Applying this standard, this Court has focused on "when a plaintiff, exercising reasonable diligence, should have first discovered the negligence, rather than the injury." Sutherland v. Estate of Ritter , 959 So.2d 1004, 1008 (Miss. 2007).

¶ 18. In its order granting the defendants' motion for partial summary judgment, the trial court found that the statute of limitations began to run on August 24, 2010, when Shirley's patient profile at the Semmes Murphy Clinic stated that her brain was flooded with IV fluids during her admission at NMMC-West Point and identified numerous behavioral issues that had resulted from that treatment. While noting that Shirley apparently did not know that she suffered specifically from CPM, the trial court concluded that "on August 24, 2010, she (1) know she was suffering from a neurological deficiency; and (2) she at least suspected that this deficiency was the result of the procedure performed at [NMMC-West Point]." On appeal, Pollan argues that the trial court misapplied the discovery rule in Section 15-1-36 because discovery of Shirley's injury required a medical diagnosis of CPM, "not merely a suspicion as to the condition or its causation." Because Shirley was not diagnosed with CPM until after her death, Pollan argues that the trial court erred in concluding that the statute of limitations began to run prior to her death.

¶ 19. Pollan's contention that a specific medical diagnosis is required for the statute of limitations to commence in a medical negligence case is not supported by this Court's precedent. "[A]lthough a hidden or unseen injury might very well serve to trigger the discovery rule and toll the statute of limitations, it is not because the injury itself is hidden or unknown, but rather because the negligence which caused the injury is unknown." Sutherland , 959 So.2d at 1008. In Sutherland , the plaintiff brought suit against the defendant for negligently prescribing the drug Zyprexa, which caused the plaintiff to suffer from tardive dyskinesia ("TDS"). Id. at 1006. The trial court granted the defendant's motion for summary judgment, finding that the plaintiff had stopped taking Zyprexa almost three years before filing his complaint. Id. On appeal, the plaintiff argued that the discovery rule contained in Section 15-1-36 tolled the statute of limitations until he was diagnosed with TDS. Id. at 1008. This Court rejected the plaintiff's argument, finding that the plaintiff's "own suspicions and actions thereon" were sufficient to show that he had knowledge of the defendant's alleged negligence prior to being diagnosed with TDS. Id. at 1009. The record indicated that the plaintiff knew shortly after his treatment by the defendant that Zyprexa was causing undesired side-effects, and he even checked himself in to the hospital because, by his own admission, "[t]he Zyprexa was destroying my life[.]" Id. Accordingly, this Court found that the plaintiff "knew who, when, how, and by what he had been injured soon after receiving treatment and the Zyprexa prescription from [the defendant] and certainly no later than the date of his discharge from St. Dominic." Id.

¶ 20. This Court's holding in Sutherland makes clear that the discovery rule in Section 15-1-36(2) focuses not on the date of a specific diagnosis, but rather the date on which the plaintiff knew or should have known she was injured and that defendant's negligent conduct caused the injury. See also Jackson Clinic for Women, P.A. v. Henley , 965 So.2d 643, 650 (Miss. 2007) ("[T]he plaintiff's own suspicions regarding possible negligent conduct starts the clock running."). In a similar context, this Court has rejected a rule that would toll the statute of limitations in medical negligence cases pending the plaintiff's review of medical records. Sarris v. Smith , 782 So.2d 721, 725 (Miss. 2001). "[A plaintiff] might gain actual knowledge of negligent conduct through personal observation or other means; such plaintiffs are not entitled to wait until they have medical records before the statute begins to run." Id. Accordingly, "the statute [of limitations] should begin to run when the plaintiff should have reasonably known of some negligent conduct , even if the plaintiff does not know with absolute certainty that the conduct was legally negligent." Id. (emphasis added). Here, the date of Shirley's diagnosis of CPM is not relevant to the running of the statute of limitations if she previously knew or should have known that the defendants' negligent conduct caused her injury. Accordingly, we find that the trial court did not misapply Section 15-1-36(2).

¶ 21. Pollan cites Schiro v. American Tobacco Co. , 611 So.2d 962 (Miss. 1992), to support the proposition that a diagnosis is necessary for a plaintiff to have sufficient knowledge of his or her injury to bring suit. But Schiro is legally distinguishable from the instant case. In Schiro , the plaintiff sued the defendant tobacco company for negligence to recover for injuries she sustained as a result of cigarette smoking. Id. at 962. The sole issue in Schiro was whether the statute of limitations began to run when the plaintiff was diagnosed with cancer, or several years earlier, when the plaintiff began experiencing health problems that she believed were attributed to smoking. Id. at 963. But unlike the instant case, the applicable statute of limitations in Schiro was Section 15-1-49, which focuses solely on discovery of the injury. Id. at 965 (quoting Miss. Code Ann. 15-1-49 ). "[C]omparing the discovery rules in the medical-malpractice statute and the 'catch-all' statute, we have one which focuses on discovery of the date of the wrongful conduct, and another which focuses on the date of discovery of the injury or disease." Caves v. Yarbrough , 991 So.2d 142, 155 (Miss. 2008). Accordingly, this Court in Schiro correctly focused on the date on which the plaintiff knew of her injury. But here, the focus is on when Shirley knew of the defendants' negligent act or omission that caused her injury.

¶ 22. Pollan also contends that the statute of limitations could not have begun to run during Shirley's lifetime because several physicians told Shirley that she did not have CPM. Specifically, Pollan relies on Shirley's chart from the Semmes Murphey Clinic, which indicates that Dr. Chen did not believe that Shirley had CPM. Pollan cites several cases in which this Court has found that a physician's advice to the plaintiff served to toll the statute of limitations. See Neglen v. Breazeale , 945 So.2d 988, 990 (Miss. 2006) ; Parham v. Moore , 552 So.2d 121, 122 (Miss. 1989) ; Pittman v. Hodges , 462 So.2d 330, 332 (Miss. 1984). But in those cases, the defendants' own assurances to the plaintiffs had caused the plaintiffs to delay the investigation of their claims. See, e.g., Pittman , 462 So.2d at 333 ("Hodges was entitled to rely upon Dr. Pittman's statements that the numbness would temporarily last from two to six weeks or even longer, and only thereafter could Hodges then by the exercise of reasonable diligence have known or discovered that his numbness was permanent ...."). Pollan does not allege that any of the defendants in this case provided Shirley with any information that would have caused her to delay the investigation of her claim.

¶ 23. In addition, while Dr. Chen expressed his belief that Shirley did not suffer specifically from CPM, the record reflects that Shirley did not simply rest in reliance on that opinion. Shirley's patient chart from an October 19, 2010, visit to Baptist Memorial Hospital-Golden Triangle provides, "The son reports to me that based on his research, the serum sodium was corrected very rapidly resulting in what was ultimately diagnosed as [CPM] .... Her mental status apparently never quite returned to baseline." Similarly, Shirley's record from a visit with Gentiva Home Health on October 22, 2010, states, "the [patient] reports [history] of severe sodium depletion in 2008 that was possibly misdiagnosed [and treatment] that caused deep brain damage based upon report from family members ...." Each of these records illustrates Shirley's belief that her neurological deficiencies were caused by the defendants' negligent medical treatment at NMMC-West Point. And even if we found that the statute of limitations began to run on October 22, 2010, rather than August 24, 2010, Pollan's survival claims still would be time-barred.

¶ 24. Finally, Pollan argues that summary judgment was improper in this case because a genuine issue of material fact exists concerning the date on which the statute of limitations began to run. In support of this argument, Pollan points to the fact that he and the defendants identified two different dates on which the statute of limitations could have commenced, and the trial court selected a third date not argued by either of the parties. Based on this discrepancy, Pollan asserts that a factual dispute clearly exists and that his survival claims should have been submitted to the jury.

¶ 25. We find that Pollan's argument is without merit, as reasonable minds could not differ as to when Shirley knew of her injury, the cause of the injury, and the relationship between the defendants and the injury. See Sanders , 485 So.2d at 1053. As previously discussed, Shirley plainly was aware of her cognitive deficiences beginning as early as her discharge from NMMC-Tupelo in October 2008. Thus, despite Pollan's arguments regarding Shirley's diagnosis of CPM, it is indisputable that Shirley was aware of her injury by August 24, 2010, the date selected by the trial date. We also agree with the trial court's determination that, on August 24, 2010-the date on which Shirley's patient profile at the Semmes Murphey Clinic was completed-Shirley knew or at least suspected that her cognitive deficiencies were the result of her blood sodium levels being corrected too quickly during her admission to NMMC-West Point. Applying our holdings in Sutherland and Henley , these suspicions, coupled with the numerous other references in Shirley's medical records to rapid sodium correction and CPM, were sufficient to commence the running of the statute of limitations for Pollan's survival claims. And because Pollan's complaint was filed more than two years after August 24, 2010, the trial court correctly concluded that Pollan's survival claims were time-barred. Accordingly, we hold that the trial court did not err in granting the defendant's motion for partial summary judgment as to Pollan's survival claims.

CONCLUSION

¶ 26. For the foregoing reasons, we affirm the judgment of the Clay County Circuit Court.

¶ 27. AFFIRMED.

RANDOLPH, P.J., COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR. KING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J., AND ISHEE, J.

KING, JUSTICE, DISSENTING:

¶ 28. In wrongful-death actions sounding in medical negligence, the statute of limitations for survival claims does not begin to run until the patient reasonably can be held to have known of the causative relationship between her injury and the conduct of the medical practitioner. Neglen v. Breazeale , 945 So.2d 988, 990 (Miss. 2006) (citations omitted). The autopsy report in this case definitively revealed for the first time that the patient's neurological injury had resulted from the rapid correction of her sodium levels after a period of severe hyponatremia. No doctor accurately had diagnosed the cause of the patient's injury during her lifetime. In fact, two medical specialists stated that her injuries had not resulted from the treatment of her hyponatremia. Because no doctor accurately had diagnosed the cause of Shirley Pollan's (Shirley) neurological deficits and because specialists in the field explicitly had denied a causative relationship between her medical treatment and injuries, I dissent from the majority's finding that Pollan's survival claims were barred by the statute of limitations.

¶ 29. Pursuant to Mississippi Code Section 15-1-36(2), claims for survival are barred unless brought within two years from the date the alleged act was or with reasonable diligence should have been first discovered. Miss. Code Ann. § 15-1-36(2) (Rev. 2012). The "statute of limitations begins to run when the patient can reasonably be held to have knowledge of the injury itself, the cause of the injury, and the causative relationship between the injury and the conduct of the medical practitioner." Neglen v. Breazeale , 945 So.2d 988, 990 (Miss. 2006) (citations omitted). So, until the plaintiff "(1) has knowledge of the injury, (2) has knowledge of the cause of the injury, and (3) knows the relationship between the practitioner and the injury," the discovery rule is tolled. Stringer v. Trapp , 30 So.3d 339, 342 (Miss. 2010) (citation omitted).

¶ 30. Here, Shirley's family diligently attempted to determine the cause of Shirley's condition after her bout with severe hyponatremia. Shirley's family transferred her from NMMC-West Point to NMMC-Tupelo, where her treating physicians at NMMC-Tupelo were perplexed as to Shirley's mental status changes. Shirley's chart stated:

IMPRESSION: Mental status changes/neurologic changes. Worried about the possibility of fluid shifts within the brain with these low sodiums versus a cerebrovascular accident.

Thus, the doctors were concerned that Shirley's neurologic changes might have resulted from a cerebrovascular accident-a stroke. One of Shirley's physicians ordered an MRI scan to see any evidence of central pontine myelinolysis (CPM) in Shirley's brain stem. The MRI revealed no demyelination in the brain stem. On October 12, 2008, Shirley's chart stated that CPM could have a delay in showing up on an MRI and stated that another MRI should be taken in forty-eight hours to a week.

¶ 31. Shirley returned to NMMC-Tupelo on October 19 and was diagnosed with a behavior disorder. On October 21, Dr. Loden stated that he was "very perplexed as to whether this is organic from her recent sodium swings or whether it may be a new psych issue. She certainly has some psychotic type features." Shirley had a repeat MRI. The MRI again showed no sign of CPM. Shirley's following medical visits included diagnoses of delirium, anxiety, and bipolar disorder. Thus, in her barrage of doctors' visits following her episode of severe hyponatremia, Shirley's health-care providers treated her for bipolar disorder and anxiety, not for CPM.

¶ 32. Moreover, two of Shirley's treating physicians had ruled out CPM as a cause. Dr. Feiyu Chen, a recommended physician specializing in the field of neurology, specifically stated that he did not think Shirley had CPM. And Dr. John Brockington opined that, "[t]he pons does not appear to be involved, but I do think that the patient's cognitive impairment is directly due to the effects of the hyponatremia...." Dr. Brockington, another specialist in the field, did not state that Shirley's mental condition had been the result of the treatment of her hyponatremia, but instead attributed her condition to the hyponatremia itself. Shirley was admitted to Baptist shortly after her visit with Dr. Brockington. Her chart stated, "[a]pparently multiple scans were done and were reviewed by neurology and felt as though the patient had develop[ed] permanent cerebral damage possibly related to her severe electrolyte abnormalities in October of 2008." Again, her chart did not state that Shirley's neurological deficits had been caused by the treatment of her hyponatremia, but instead was "related to her severe electrolyte abnormalities." Accordingly, I believe that Shirley was entitled to rely on her physicians' opinions that she did not have CPM.

¶ 33. "[I]n Mississippi, when a valid factual dispute exists, the issue is settled by the finder of fact, a jury. It is only when reasonable minds cannot differ that it becomes settled as a matter of law." Huss , 991 So.2d at 166 ; see also Holaday v. Moore , 169 So.3d 847, 850 (Miss. 2015) ("This Court has held that '[d]iscovery of an injury "is an issue of fact to be decided by a jury when there is a genuine dispute." ' "). The statute of limitations has been tolled in cases in which a patient develops serious complications after a medical procedure but has no reason to know that the doctor's negligence in performing the procedure caused the complications. Huss v. Gayden , 991 So.2d 162, 166 (Miss. 2008) (quoting Sutherland v. Estate of Ritter , 959 So.2d 1004, 1008 (Miss. 2007) ). There, this Court explained that a statute of limitations also may be tolled upon reasonable reliance on a physician's estimate and/or opinion as to recovery or risk. Id. at 167. As this Court has held, "a layperson undergoing a surgical procedure trusts in and relies on the instructions, professional expertise and guidance of his or her physician." Neglen , 945 So.2d at 991 ("[W]e cannot conclude as a matter of law that Lillian did not act diligently by trusting the doctors' opinions and waiting over two years before requesting James'[s] medical records.").

¶ 34. If even medical doctors specializing in the particular field could not determine whether Shirley's neurological changes resulted from her severe hyponatremia or from the results of her treatment of hyponatremia or from some other cause, a jury question exists as to whether Shirley should have known of her neurological injuries and the correlation to the treatment of her hyponatremia. Had Pollan filed a lawsuit before the autopsy report revealed that Shirley's cause of death was CPM, Shirley's own physicians' opinions would have been that she did not have CPM. Based on the medical opinions that Shirley had been provided at that point, a jury question would have existed as to whether Shirley had been injured from her treatment at all, or if her neurological deficits had been the result of her sodium depletion itself or from another unknown cause.

¶ 35. Although the majority cites Sutherland , 959 So.2d at 1004, this case clearly can be distinguished. There, the plaintiff had experienced negative side effects after taking Zyprexa. Id. at 1005. The plaintiff admittedly knew that his injuries directly resulted from taking Zyprexa, but he did not know the specific medical terminology for his condition. Id. at 1007. The facts showed that the plaintiff had known "who, when, how, and by what he had been injured soon after receiving treatment...." Id. However, this Court emphasized that:

[I]n medical negligence cases, we must focus our inquiry on when a plaintiff, exercising reasonable diligence, should have first discovered the negligence, rather than the injury.... For instance, a patient who undergoes a medical procedure may develop serious complications which are clearly known. However, if the patient has no reason to know that the doctor's negligence in performing the procedure caused the complications, the discovery rule will apply, even though the injury itself is not latent at all.

Id. at 1008.

36.¶ Pollan signed an affidavit stating that Shirley's doctors never had advised Shirley that her post-October 8, 2008, conditions were the result of her past medical treatment. Pollan also swore that her doctors had not advised him that she had been suffering from CPM due to rapid sodium correction. Pollan has shown a genuine issue of material fact as to when Shirley or her family should have discovered "the injury itself, the cause of the injury, and the causative relationship between the injury and the conduct of the medical practitioner." Neglen , 945 So.2d at 990. After a myriad of physicians and appointments, no doctor definitively stated that Shirley had developed CPM. Because I believe that genuine issues of material fact remain on the question of whether Shirley should have known of the correlation between her treatment on October 8, 2008, and her resulting injury, I would reverse the decision of the circuit court and remand for a trial on the merits. Therefore, I dissent.

KITCHENS, P.J., AND ISHEE J., JOIN THIS OPINION.

      A normal blood sodium level is between 136 and 145 mEq/L.

      Hyponatremia is defined as low sodium concentration in the blood. It can be caused by Syndrome of Inappropriate Diuretic Hormone Secretion (SAIDH), which occurs when the pituitary gland releases excessive antidiuretic hormone. SAIDH increases the amount of water in a person's blood while decreasing plasma sodium levels.


author: MAXWELL, JUSTICE, FOR THE COURT:

text:
    Cheryl L. HIGH v. Todd KUHN and Angela T. Kuhn
    NO. 2017-CA-00092-SCT
    Supreme Court of Mississippi.
    December 14, 2017
    ATTORNEY FOR APPELLANT: STEVEN NICHOLAS NEWTON
    ATTORNEY FOR APPELLEES: VIRGIL G. GILLESPIE
    BEFORE KITCHENS, P.J., MAXWELL AND ISHEE, JJ.
   MAXWELL, JUSTICE, FOR THE COURT:

¶ 1. In High v. Kuhn , 191 So.3d 113 (Miss. 2016) ( High I ), we reversed and rendered the judgment of the special court of eminent domain, specifically finding the plaintiffs, Todd and Angela Kuhn, were not entitled to condemn Cheryl High's property for a private road. The statutory procedures governing eminent-domain actions permit a defendant like High to recover expenses-including attorney's fees-when "the judgment be that the plaintiff is not entitled to a judgment condemning property[.]" Miss. Code Ann. § 11-27-37 (Rev. 2004). Following this Court's mandate, High moved the special court for an award of attorney's fees and expenses under Section 11-27-37.

¶ 2. The special court held Section 11-27-37 did not apply and denied High's request. High again appealed to this Court. And once again, we must find error. The Kuhns clearly invoked the statutory procedures of the special court of eminent domain when they petitioned that court for the statutory right to condemn High's property for a private road. Thus, Section 11-27-37-the eminent domain statute which provides for the recovery of attorney's fees and expenses-applied.

¶ 3. Because the award of fees and expenses under Section 11-27-37 is discretionary, not mandatory, we remand this matter to the special court of eminent domain to consider the merits of High's motion and the reasonableness of her request for $25,990.58 in attorney's fees and expenses, plus interest.

Background Facts and Procedural History

I. First Appeal

¶ 4. The Kuhns bought their landlocked residential property knowing the current route to their driveway-over High's neighboring property-could be cut off at any point in the future. When High soon after refused to allow them to use her property to get to theirs, they invoked the procedures of Mississippi Code Section 65-7-201 (Rev. 2012) and petitioned the Harrison County Special Court of Eminent Domain for a private road across High's property.

¶ 5. At the close of the Kuhns' evidence, High moved for dismissal. She argued the undisputed evidence showed her property was in the City of Gulfport. And Section 110 of the Mississippi Constitution clearly prohibited condemning for a statutory private road any property located within an incorporated town or city. See Miss. Const. art. 4, § 110.

¶ 6. The special court denied High's motion and granted the Kuhns a private road under Section 65-7-201. High petitioned for and was granted interlocutory appeal. On appeal, this Court agreed with High. "Section 110 of the constitution clearly prohibits the Legislature from creating the statutory right to condemn for a private road property within an incorporated city or town." High I , 191 So.3d at 117 (emphasis removed). Thus, the statutory right the Legislature created in Section 65-7-201 to petition the special court of eminent domain to establish a private road does not extend to condemning property within a city like Gulfport. Id. at 118. For this reason, we reversed and rendered the judgment of the special court, finding that court had erred as a matter of law when it granted the Kuhns' request for a private road across High's property in Gulfport. Id.

¶ 7. As part of her interlocutory appeal, High requested attorney's fees under Section 11-27-37. Section 65-7-201 directs that when a petition is filed under that section, "the case shall proceed as nearly as possible as provided in Title 11, Chapter 27 for the condemnation of private property for public use." Miss. Code Ann. § 65-7-201. And Section 37 of Title 11, Chapter 27, provides that a successful defendant landowner may recover "reasonable expenses, including attorneys' fees, incurred by him in defending the suit." Miss. Code Ann. § 11-27-37. But because those expenses are recoverable "in a separate action"-and High had yet to bring an action for attorney's fees and expenses-we denied High's request without prejudice. High I , 191 So.3d at 120.

II. Current Appeal

¶ 8. Following this Court's mandate, High went back to the special court and filed a post-judgment motion for attorney's fees and expenses in the amount of $25,990.58, plus interest. See Cox v. Warren Cty. , 600 So.2d 935, 938 (Miss. 1992) (holding "[ Section] 11-27-37 gives the defendant landowner a separate cause of action against the petitioner condemnor, which may be brought via a post trial motion in the eminent domain court, or in a separate action in any court of competent jurisdiction"). After a hearing, the special court denied High's motion.

¶ 9. According to the special court, because "our Supreme Court has made it abundantly clear that the Kuhns were not entitled to seek relief from this Court, a Special Court of Eminent Domain ..., it follows that the provisions of the eminent domain laws, as codified in Sections 11-27-1 are inappropriate here and, thus, Section 11-27-37 is inapplicable." And because "there is neither contractual nor statutory authority to grant attorney's fees in this cause," the special court denied High's motion.

¶ 10. High appealed for a second time.

Discussion

¶ 11. The three issues High raises on appeal boil down to one question-Did the special court err when it ruled Section 11-27-37 did not apply? As we pointed out in High I , "[t]o obtain an easement across High's property, the Kuhns petitioned a statutorily created court-the special court of eminent domain-for a statutorily created right." High I , 191 So.3d at 117. Thus, it follows that the statutes governing eminent domain actions-including Section 11-27-37-apply.

¶ 12. First, Section 11-27-37 applies under the plain language of Section 65-7-201. "The Kuhns based their petition on Section 65-[7]-201." High I , 191 So.3d at 117. And that statute directs, "[w]hen any person shall desire to have a private road laid out through the land of another, ... he shall apply by petition ... to the special court of eminent domain created under Section 11-27-3 ..., and the case shall proceed as nearly as possible as provided in Title 11, Chapter 27 for the condemnation of private property for public use." Miss. Code Ann. § 65-7-201 (emphasis added). Thus, the Legislature's intent was that an action for a private condemnation, to the extent possible, would be just like an action for a public condemnation. So, just like an action for a public condemnation, when a plaintiff fails to obtain a judgment for a private condemnation, the defendant may recover her reasonable expenses-including attorney's fees-incurred in defending the action. Miss. Code Ann. § 11-27-37.

¶ 13. Second, Section 11-27-37 applies even though we ruled the Kuhns were not entitled to the remedy they sought. Because we held that the Kuhns "had no right ... to petition the special court of eminent domain for a private road across High's property in Gulfport," the Kuhns argued-and the special court agreed-that none of the provisions of Title 11, Section 27 applied. But the fact the Kuhns'

petition was dead on arrival actually supports awarding High attorney's fees.

¶ 14. As we noted in High I , the Kuhns had other common-law remedies available to them to gain better access to their property, which they could have pursued in chancery court. High I , 191 So.3d at 119. Instead, they pursued a statutory remedy in the special court of eminent domain. In other words, it was the Kuhns who chose to invoke the statutory provisions of Section 65-7-201 and Title 11, Chapter 27, to resolve their dispute with High. And one of these provisions is that, should the Kuhns not succeed, they may have to pay High's reasonable expenses. Miss. Code Ann. § 11-27-37. The Kuhns did not succeed, because the remedy they chose was constitutionally unavailable to them. Thus, Section 11-27-37 applied.

Conclusion

¶ 15. To hold that Section 11-27-37 applies, however, does not automatically entitle High to the more than $25,000 in attorney's fees and expenses, plus interest, she requested. Recovering reasonable expenses and attorney's fees under Section 11-27-37 is not automatic. The statute provides "the defendant may recover," not "shall." Miss. Code Ann. § 11-27-37 (emphasis added). Thus, whether to award statutory attorney's fees and expenses under Section 11-27-37 and, if so, in what amount falls within the discretion of the trial court.

¶ 16. As an alternative argument, the Kuhns argue this Court should affirm the special court's denial of High's motion because High failed to support her attorney's fees petition with sufficient evidence. But this argument is premature. The Kuhns concede that High presented evidence that she incurred "some attorneys fees" in defending their action. So what the Kuhns are really challenging is the reasonableness of the amount of an attorney's fee award that has not yet been granted. The special court held High could not recover attorney's fees and expenses, period. It did not address whether High's evidence supports her receiving the entire amount of fees she requested.

¶ 17. Because High's reasonable attorney's fees and expenses may be recoverable under Section 11-27-37, we reverse the special court's order denying High's motion and remand this issue to the special court for further proceedings.

¶ 18. REVERSED AND REMANDED.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.

      More details about the Kuhns' attempt to establish a private road across High's property and High's first appeal can be found at High I , 191 So.3d 113.

      See Fulton v. Miss. Farm Bureau Cas. Ins. , 105 So.3d 284, 287-88 (Miss. 2012) (noting, "absent some statutory authority or contractual provision, attorneys' fees cannot be awarded unless punitive damages are also proper").

      High I , 191 So.3d at 118.

      On appeal, the Kuhns frame the issue as the special court of eminent domain lacking "subject matter jurisdiction"-an argument High made and this Court declined to address in High I. High I , 191 So.3d at 117 n.5. We see no reason for this Court to consider this issue now.
      First, this assertion is inconsistent with the Kuhns' position in High I , in which they argued the special court of eminent domain was the only court that could afford them the relief they sought.
      Second, for the Kuhns now to change their tune and argue that the court they chose lacked subject matter jurisdiction does not help their cause. The Mississippi Litigation Accountability Act authorizes the award of attorney's fees as a sanction for a "frivolous" filing, which is defined as having "no hope of success." See Anderson v. B.H. Acquisition, Inc. , 771 So.2d 914, 921-22 (Miss. 2000) (discussing Miss. Code Ann. § 11-55-5(1) (Rev. 2012)). And a suit filed in a court lacking authority to grant the relief sought squarely falls under that "no hope" category. See Mark S. Bounds Realty Partners, Inc. v. Lawrence , 34 So.3d 1224, 1230 (Miss. Ct. App. 2010) (holding that the filing of an action in chancery court, which the plaintiff knew or should have known lacked subject matter jurisdiction, supported the chancery court's award of attorney's fees as sanctions). Thus, by insisting they filed an action in a court that lacked subject matter jurisdiction, the Kuhns are essentially conceding their action was "frivolous"-opening up another statutory door for High to potentially recover attorney's fees. See Miss. Code Ann. § 11-55-5(1) ; see also Lawrence , 34 So.3d at 1230 (upholding an attorney's fees award imposed by a court lacking subject matter jurisdiction over the action).

      See Pitalo v. GPCH-GP, Inc. , 933 So.2d 927, 929 (Miss. 2006) ("Simply stated, 'shall' is mandatory, while 'may' is discretionary.").


text:
    Patrick RIDGEWAY v. Louise Ridgeway HOOKER
    Patrick Ridgeway v. Louise Ridgeway Hooker
    NO. 2016-CA-00807-SCT NO. 2016-IA-01428-SCT
    Supreme Court of Mississippi.
    February 15, 2018 Rehearing Denied May 10, 2018
    ATTORNEYS FOR APPELLANT: T. JACKSON LYONS, MARC E. BRAND
    ATTORNEYS FOR APPELLEE: JOHN ROBERT WHITE, JR., PAMELA GUREN BACH
    BEFORE WALLER, C.J., KITCHENS, P.J., AND BEAM, J.
   KITCHENS, PRESIDING JUSTICE, FOR THE COURT:

¶ 1. Patrick Ridgeway sought an irreconcilable differences divorce from Louise Ridgeway (now Louise Hooker). The parties entered into a written agreement, which the Chancery Court of the First Judicial District of Hinds County approved and memorialized in its Final Judgment of Divorce-Irreconcilable Differences. But after Hooker had filed a Petition for Citation of Contempt against Ridgeway approximately two years later, Ridgeway filed a Motion for Relief from Final Judgment of Divorce pursuant to Mississippi Rule of Civil Procedure 60(b)(4), arguing that the judgment was void because the chancery court had lacked subject-matter and personal jurisdiction. The chancery court found that it had jurisdiction of the subject matter and of the parties and denied Ridgeway's Rule 60(b)(4) motion. Ridgeway appealed, and we affirm the decision of the chancery court.

¶ 2. While this case was pending on appeal, the parties filed various motions in the chancery court. The chancery court stayed "any and all matters pending before the Court in this cause." Ridgeway filed a petition for an interlocutory appeal in this Court, opposing the stay of all proceedings. In her response, Hooker agreed that the stay should be vacated and that interlocutory appeal should be granted. This Court granted interlocutory appeal and consolidated the two cases. Because the issue of the stay is mooted by this Court's affirmance of the chancery court's decision to deny Ridgeway's Rule 60(b)(4) motion, we dismiss the interlocutory appeal.

STATEMENT OF THE FACTS

¶ 3. Ridgeway filed for divorce against Hooker on the ground of irreconcilable differences in the Chancery Court of the First Judicial District of Hinds County on February 6, 2013.The record does not establish that Hooker was served with process.

¶ 4. Thereafter, Hooker's attorney issued subpoenas duces tecum and caused them to be served on Metropolitan Bank and American Express Centurion Bank. On March 19, 2013, Hooker's attorney filed a notice that Ridgeway had been served with the First Set of Interrogatories and Requests for Production of Documents. Ridgeway's answers were filed on April 2, 2013. That same day, Ridgeway filed a motion to quash the subpoena duces tecum which had been served on American Express Centurion Bank. Hooker responded to the motion on April 23, 2013. An Agreed Order on Motion to Quash, which stated, inter alia , that "[t]his Court has jurisdiction of the parties and subject matter hereto," reflects that Ridgeway withdrew his motion to quash.

¶ 5. In March 2014, Ridgeway and Hooker certified to the trial court that they had filed requisite financial disclosures in compliance with Uniform Chancery Court Rule 8.05. Ridgeway and Hooker entered a written agreement on March 25, 2014. Each page of the agreement was initialed by both parties, the agreement was signed by both parties, and it was notarized. The court entered a Judgment of Divorce-Irreconcilable Differences on April 8, 2014, approving the agreement and ordering the parties to comply with the terms of the agreement, which was incorporated into the judgment. The judgment was signed by Ridgeway and Hooker.

¶ 6. Hooker filed a Petition for Citation of Contempt on November 24, 2015, arguing that Ridgeway had failed to comply with specific terms of the Judgment of Divorce. Ridgeway noticed depositions and noticed service of discovery on Hooker. On December 9, 2015, the trial court entered a scheduling order which was amended on January 25, 2016. According to the amended scheduling order, trial was set for June 28-29, 2016. Hooker issued and served a First Set of Interrogatories and Requests for Production of Documents on December 22, 2015. On March 7, 2016, the parties signed an agreed order extending the deadline for filing motions to amend the pleadings to March 15, 2016. Hooker filed a Motion to Compel Discovery Responses on March 9, 2016.

¶ 7. Ridgeway then, on March 10, 2016, filed a Motion for Relief from Final Judgment of Divorce pursuant to Mississippi Rule of Civil Procedure 60(b)(4). He argued that the "Judgment of Divorce is void because the Court lacked personal jurisdiction over the Defendant." Ridgeway argued that the chancery court had lacked personal jurisdiction because, when he filed his complaint for divorce on the ground of irreconcilable differences, he never served Hooker with process or obtained her waiver of service of process pursuant to Mississippi Code Section 93-5-2(1) (Rev. 2013).

¶ 8. Hooker responded that the Judgment of Divorce was valid because she had waived service of process by signing the Judgment of Divorce, by filing responsive pleadings without raising the issue of insufficiency of service of process, and by failing to object at any point during the litigation. She added that Ridgeway's marriage to another woman the same day of the entry of the Judgment of Divorce estopped his claim that the judgment was invalid.

¶ 9. A hearing was held on April 19, 2016. The chancellor entered an Order and Opinion on Plaintiff's Motion to Set Aside Judgment on May 5, 2016. She denied Ridgeway's motion because "[t]o allow Mr. Ridgeway to proceed improperly and then assert error when the subsequent circumstances benefit him is in direct contradiction with the purpose for which the rules were promulgated." She continued: "The Plaintiff who created the defect cannot now benefit from his errors wherever it suits him. The honorable Court will not endorse such actions and it further admonishes the Plaintiff for attempting to manipulate the rules in order to play 'gotcha' with the Defendant." The chancellor held that Hooker had waived any objection to the court's exercise of personal jurisdiction.

¶ 10. Aggrieved, Ridgeway timely filed a Notice of Appeal on June 2, 2016. On direct appeal, Ridgeway argues that the Judgment of Divorce on the ground of irreconcilable differences is void because the chancery court lacked subject-matter and personal jurisdiction. Hooker responds that the chancellor correctly found that the Judgment of Divorce was valid because Hooker waived her right to challenge jurisdiction by voluntarily appearing and participating in the proceedings. She continues that Ridgeway's jurisdictional argument is barred by the doctrine of judicial estoppel because it is inconsistent with the position he took at the time the parties entered the Judgment of Divorce, namely, that the chancery court had jurisdiction of the subject matter and the parties. Hooker reiterated the argument she made in the chancery court that Ridgeway's marriage to another woman on the day the Judgment of Divorce was entered estopped him from asserting its invalidity.

¶ 11. On June 8, 2016, Ridgeway filed a Motion to Stay Proceedings Pending Appeal in which he asked the chancery court to "stay the proceedings as to the issues set forth in the Petition for Contempt." The chancellor entered an Agreed Order of Continuance on June 20, 2016, which reflected the parties' agreement to continue trial "with the understanding that pending the outcome of an appeal ... the parties shall comply with the alimony and support provisions contained in the Judgment of Divorce ... unless and until either party requires emergency, temporary or other relief from the terms of the Final Judgment."

¶ 12. Ridgeway then filed his Defenses, Answer, and Counterclaim to Hooker's Petition for Citation of Contempt on July 27, 2016. In the counterclaim, he asked, inter alia , that the court order Hooker to repay him for money he allegedly had paid in excess of the requirements of the Judgment of Divorce, find Hooker in contempt for violating the child custody agreement, modify the child custody agreement, and terminate or modify his alimony obligation. He claimed that Hooker had alienated the love and affection of their minor daughter, that Hooker had allowed the minor children to "drink alcohol to excess," and that Hooker had "allowed a member of the opposite sex to be present overnight in her home and other residences in Oxford and Florida[ ] while the children were present overnight."

¶ 13. On September 6, 2016, Ridgeway noticed and served deposition subpoenas. That same day, Hooker filed a Petition for Domestic Abuse Protection Order in which she claimed that Ridgeway had entered her home "in a mad rage" and threatened her, placing her "in fear of imminent bodily injury ...." Hooker also filed a Motion to Quash Deposition Subpoenas and to Stay Proceedings, asking the court to stay the proceedings "until such time as the Court has conducted a status conference and an Order has been entered specifying what matters the Court will allow to be pursued pending the appeal to the Mississippi Supreme Court ...."

¶ 14. After conducting a status conference, the chancery court entered an Order on Motion to Quash Deposition Subpoenas and to Stay Proceedings on September 15, 2016. The order provided:

that any and all matters pending before the Court in this cause shall be stayed until such time as the appeal filed herein by Patrick Ridgeway on June 2, 2016 ... has been fully adjudicated by the appropriate appellate court, except that the Petition for Final Domestic Abuse Protection Order filed herein by Louise Hooker on September 6, 2016, may be re-filed under a separate cause number and heard in the Court's usual manner.

¶ 15. On September 21, 2016, Ridgeway's attorney notified Hooker's attorney by letter that Ridgeway no longer would be making alimony payments to Hooker because, "based on credible facts which Mr. Ridgeway is aware of, there is clear and convincing evidence that Ms. Hooker is cohabiting (as defined by Mississippi case law) with Destin Wilson." According to the letter, the agreement provides that "Patrick's obligation to pay alimony ... 'automatically terminates upon ... Louise's remarriage or cohabitation.' "

¶ 16. Hooker responded with an Emergency Motion to Enforce Stay and for Entry of Injunction on September 28, 2016, in which she argued that, "[i]nstead of pursuing an interlocutory appeal for the purpose of requesting the appellate court to review the trial court's stay which prohibits Patrick from going forward with his request for termination of alimony, Patrick unilaterally modified the Judgment of Divorce-Irreconcilable Differences and terminated payment of his alimony obligation ...." Hooker asked that the Court enjoin Ridgeway from failing to maintain his alimony obligation, which made up her "primary source of income and her primary source of support for herself and the parties' minor children." With regard to the Emergency Motion to Enforce Stay, the chancellor, in an order entered on October 31, 2016, determined that it had "no jurisdiction to hear the merits of the motion while the Order and Opinion on [Ridgeway's] Motion to Set Aside Judgment is on appeal to the Mississippi Supreme Court."

¶ 17. On October 5, 2016, Ridgeway filed a Petition for Interlocutory Appeal in this Court from the chancery court's September 15, 2016, order granting a stay of all proceedings except Hooker's Petition for Final Domestic Abuse Protection Order. Ridgeway argued that the chancery court had erred as a matter of law by failing to exercise jurisdiction over "contested matters," including alimony, child custody, and child support such that "the Parties have no recourse for these contested issues." In response, Hooker did not oppose the grant of interlocutory appeal and also asked this Court to vacate the stay: Hooker "is prevented from pursuing her claims for contempt of [Ridgeway's] non-payment and underpayment of child support and alimony, and she is prevented from pursuing substantial sums [Ridgeway] owes under the property division terms of the Judgment of Divorce."

¶ 18. On November 17, 2016, and December 1, 2016, Ridgeway filed in this Court two motions to strike because Hooker had attached to her brief on direct appeal a copy of a marriage license between Ridgeway and one Leslie Brooke Hollingsworth, which was dated April 8, 2014. The marriage license was certified by the Clerk of the Circuit Court of the First Judicial District of Hinds County as a "true and correct copy of the original MARRIAGE LICENSE and the same is of record in this office in Book No. 261 at page 73." Hooker had asked in her brief on direct appeal that this Court take judicial notice of the Hinds County public record. Ridgeway argued in his motions to strike that because the marriage license did not appear in the record from the chancery court, this Court should not consider it. Ridgeway averred that he "regards [the marriage license] as irrelevant to a decision on the merits."

¶ 19. A panel of this Court, on November 22, 2016, granted Ridgeway's Petition for Interlocutory Appeal and consolidated the interlocutory appeal with the direct appeal. On December 6, 2016, Chief Justice William L. Waller, Jr., ordered that the "issue of whether judicial notice should be taken" be "passed for consideration with the merits of the appeal."

STANDARD OF REVIEW

¶ 20. This Court has held that "[i]ssues involving the chancery court's jurisdiction to hear a particular matter are questions of law which require the Court to apply a de novo standard of review." Edwards v. Zyla , 207 So.3d 1232, 1235 (Miss. 2016) (citing In re Guardianship of Z.J. , 804 So.2d 1009, 1011 (Miss. 2002) ).

DISCUSSION

I. Whether the chancery court erred by denying Patrick Ridgeway's Mississippi Rule of Civil Procedure 60(b)(4) Motion For Relief from Final Judgment of Divorce because it lacked subject-matter and personal jurisdiction.

¶ 21. Mississippi Code Section 93-5-2(1) provides:

Divorce from the bonds of matrimony may be granted on the ground of irreconcilable differences, but only upon the joint complaint of the husband and wife or a complaint where the defendant has been personally served with process or where the defendant has entered an appearance by written waiver of process.

Miss. Code Ann. § 93-5-2(1) (Rev. 2013). Mississippi Rule of Civil Procedure 60(b)(4) allows a court to "relieve a party ... from a final judgment" if "the judgment is void ...." Ridgeway argues that the chancery court lacked subject-matter and personal jurisdiction because the complaint he filed was not a joint complaint, he never served the complaint on Hooker, and Hooker never entered an appearance by written waiver.

¶ 22. "Subject matter jurisdiction is the power of the court to hear and determine cases in the general class to which the particular case belongs." In re Estate of Kelly , 951 So.2d 543, 548 (Miss. 2007) (citing Case's Will v. Case , 246 Miss. 750, 758, 150 So.2d 148 (1963) ). "Subject-matter jurisdiction is conveyed by the Mississippi Constitution." Lewis v. Pagel , 233 So.3d 740, 748, 2017 WL 2377690, *6 (Miss. June 1, 2017). "Section 159 of the Mississippi Constitution vests subject-matter jurisdiction in the chancery courts over divorce proceedings." Id. at 747, at *6 (citing Miss. Const. art. 6, § 159 ("The chancery court shall have full jurisdiction in the following matters and cases, viz.: ... (b) Divorce and alimony ....") ).

¶ 23. It is true, as Ridgeway argues, that "the defense of lack of subject matter jurisdiction cannot be waived." Stuart v. Univ. of Miss. Med. Ctr. , 21 So.3d 544, 548-49 (Miss. 2009) (citing Capron v. Van Noorden , 2 Cranch 126, 6 U.S. 126, 127, 2 L.Ed. 229 (1804) ("[I]t was the duty of the Court to see that [it] had jurisdiction, for the consent of the parties could not give it.") ). But this Court recently overruled cases holding that the venue requirements of Mississippi Code Section 93-5-11 (Rev. 2013) "could not be waived as it vested subject-matter jurisdiction over divorce actions in the chancery court." Lewis , 233 So.3d at 747, 2017 WL 2377690, at *6. This Court overruled "these past cases to the extent that they hold that Section 93-5-11 confers subject-matter jurisdiction on chancery courts." Id. Instead, the Court held that, while the Mississippi Constitution confers subject-matter jurisdiction," Section 93-5-11 governs the venue of a divorce action and limits the chancery court's exercise of personal jurisdiction over the defendant," and the "Mississippi Rules of Civil Procedure control the procedure to be utilized when venue is improper." Id.

¶ 24. The chancery court has jurisdiction of divorce cases, including irreconcilable differences divorces. See Miss. Const. art. 6, § 159. No case cited by Ridgeway stands for the proposition that the requirements of Section 93-5-2(1), if not strictly complied with, deprive the chancery court of subject-matter jurisdiction of an irreconcilable differences divorce. As in Lewis , Section 93-5-2(1) limits the chancery court's exercise of personal jurisdiction over the defendant, requiring a joint complaint and either personal service on the defendant or the defendant's "entry of appearance by written waiver of process." Miss. Code Ann. § 93-5-2(1).

¶ 25. Personal jurisdiction "is an individual right that can be waived." Pekin Ins. Co. v. Hinton , 192 So.3d 966, 971 (Miss. 2016) (citing Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee , 456 U.S. 694, 703, 102 S.Ct. 2099, 2105, 72 L.Ed.2d 492 (1982) ). More specifically, "[o]ne waives process and service ... upon making a general appearance." Isom v. Jernigan , 840 So.2d 104, 107 (Miss. 2003). This Court held, in a case in which the defendant had "appeared by counsel and filed a plea to the jurisdiction of the court, which he later withdrew, and also filed cross-interrogatories to appellant in the taking of her deposition," that "personal appearance by a defendant in a cause gives the court jurisdiction of his person as completely as if he had been personally served with process within this state." Clay v. Clay , 134 Miss. 658, 99 So. 818, 819 (1924). The Mississippi Court of Appeals has held that, while actual service of process had not been issued, the signature of the defendant and his attorney "under the caption, 'Read, Agreed, and Approved' " constituted the defendant's having made "a legal appearance in the matter." James v. McMullen , 733 So.2d 358, 360 (Miss. Ct. App. 1999).

¶ 26. Our Mississippi Rules of Civil Procedure also contemplate waiver in this circumstance: "A defense of lack of jurisdiction over the person, ... insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by a motion under this rule nor included in a responsive pleading or an amendment thereof ...." Miss. R. Civ. P. 12(h)(1). Ridgeway makes the statement in his brief that, "[a]ll know that where the [Irreconcilable Divorce Act] and, here, Rule 12 conflict, that the IDA governs." But the converse is true. See Newell v. State , 308 So.2d 71 (Miss. 1975) ( Article 6, Section 144, of the Mississippi Constitution, which states that the State's " 'judicial power ... shall be vested in a Supreme Court and other courts as are provided for in this constitution.' .. leaves no room for a division of authority between the judiciary and the legislature as to the power to promulgate rules necessary to accomplish the judiciary's constitutional purpose.").

¶ 27. Here, Ridgeway did not comply with Section 93-5-2(1) in filing a joint complaint, in serving the complaint on Hooker, or in obtaining Hooker's appearance by written waiver. But Hooker never objected to a lack of jurisdiction, to insufficiency of process, or to insufficiency of service of process. She participated in discovery. She initialed every page of the agreement, signed the agreement, and signed the Judgment of Divorce-Irreconcilable Differences. Hooker's voluntary appearance obviated the necessity of service of process and she consented to the chancery court's jurisdiction. By failing to raise the defense of lack of personal jurisdiction, insufficiency of process, or insufficiency of service of process, Hooker waived those defenses pursuant to Rule 12(h)(1).

¶ 28. It was Ridgeway's failure to comply with Section 93-5-2(1) which created the alleged jurisdictional defect. As the chancellor correctly observed, Ridgeway cannot complain now of an error of his own creation. This Court has held, an " '[a]ppellant has no standing to seek redress from [an] alleged error of his own creation.' " Caston v. State , 823 So.2d 473, 494-95 (Miss. 2002) (quoting Evans v. State , 547 So.2d 38, 40 (Miss. 1989) ).

¶ 29. In Kolikas v. Kolikas , 821 So.2d 874, 876 (Miss. Ct. App. 2002), the husband filed a complaint for divorce in Marshall County, Mississippi, but failed to provide notice to his nonresident wife. The chancery court granted the divorce to the husband, and the Mississippi Court of Appeals reversed and remanded, holding that "[t]he chancery court had not acquired personal jurisdiction over Ms. Kolikas due to lack of proper service of process based on the Mississippi Rules of Civil Procedure ...." Id. at 879-80. The appeals court held that "Mr. Kolikas, in consultation with his attorney, chose what actions to take in pursuit of divorce" and that "[a]s such, it was his obligation, not that of Ms. Kolikas, to ensure that his actions complied with the appropriate statutes and court rules." Id. at 879. The court continued: "He did not do so, and cannot place the blame for this failure on Ms. Kolikas." Id. Similarly, Ridgeway cannot place the blame on Hooker for his own failure to comply with the appropriate statutes and court rules now that doing so, if he succeeded, would inure to his benefit.

¶ 30. Ridgeway relies on the case of Alexander v. Alexander , 493 So.2d 978 (Miss. 1986), in support of his argument that "a divorce under the [Irreconcilable Differences Act] was void without some form of personal service or written waiver." But in that case this Court held "the chancery court exceeded its authority in granting a divorce on the ground of irreconcilable differences" because there had been "no written agreement of the parties regarding their property rights as required by the statute." Alexander , 493 So.2d at 980. See Gallaspy v. Gallaspy , 459 So.2d 283, 287 (Miss. 1984) (Robertson, J., specially concurring) ("The chancery court has no authority to grant a divorce on the ground of irreconcilable differences unless the parties have reached agreement on all financial matters."). Here, unlike in Alexander , the parties reached a "written agreement for the custody and maintenance of [the] children of [the] marriage and for the settlement of any property rights between the parties ...." in accordance with Section 93-5-2(2).

¶ 31. Accordingly, because the chancellor had subject-matter jurisdiction, because Hooker waived any objection to the exercise of personal jurisdiction, and because Ridgeway lacks standing to complain of an error of his own creation, we affirm.

II. Whether Ridgeway was estopped from claiming the invalidity of the Judgment of Divorce.

Whether the doctrine of judicial estoppel bars Ridgeway's claim that the Judgment of Divorce was invalid .

¶ 32. Hooker argues that the doctrine of judicial estoppel bars Ridgeway's claim that the Judgment of Divorce was invalid. At the outset, we observe that Hooker did not raise this issue in the chancery court, but raises it for the first time on appeal. This Court consistently has held that, "[w]e need not consider matters raised for the first time on appeal, which practice would have the practical effect of depriving the trial court of the opportunity to first rule on the issue, so that we can then review such trial court ruling under the appropriate standard of review." Alexander v. Daniel , 904 So.2d 172, 183 (Miss. 2005). Moreover, "judicial estoppel 'must be invoked in the Court in which the apparent self-serving contradiction occurred ...." Kirk v. Pope , 973 So.2d 981, 991 (Miss. 2007) (internal citations omitted). Accordingly, we decline to entertain Hooker's argument.

Whether this Court can take judicial notice of the marriage license; whether Ridgeway's marriage to another woman estopped his claim that the Judgment of Divorce was invalid.

¶ 33. Hooker argues on appeal, as she argued in the chancery court, that Ridgeway "relied on the validity of the divorce to enter into his new marriage[ ] and therefore is estopped from now claiming the divorce was void." Attached to Hooker's brief on direct appeal was a copy of a marriage license between Ridgeway and one Leslie Brooke Hollingsworth, which was dated April 8, 2014. Ridgeway responded with two motions to strike, arguing that, because the marriage license did not appear in the record from the chancery court, this Court should not consider it and that he "regards [the marriage license] as irrelevant to a decision on the merits." Hooker responds that this Court may take judicial notice of the Hinds County public record. Chief Justice Waller ordered that the issue of judicial notice be passed for consideration with the merits.

¶ 34. We find the issues of whether this Court can take judicial notice of the marriage license and, if so, whether Ridgeway's marriage to another woman estopped his claim that the Judgment of Divorce was invalid, unnecessary to the disposition of this case. Accordingly, we decline to address them.

CONCLUSION

¶ 35. On direct appeal, this Court affirms the judgment of the Chancery Court of the First Judicial District of Hinds County and remands the case to that court for further proceedings.

¶ 36. Accordingly, the direct appeal having been adjudicated fully, the issue of the stay pending appeal is moot and we dismiss the interlocutory appeal.

¶ 37. ON DIRECT APPEAL: AFFIRMED AND REMANDED. ON INTERLOCUTORY APPEAL: DISMISSED.

WALLER, C.J., RANDOLPH, P.J., KING, COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR. ISHEE, J., NOT PARTICIPATING.

      Mississippi Code Section 93-5-11 governs proper venue for divorce actions:
      All complaints, except those based solely on the ground of irreconcilable differences, must be filed in the county in which the plaintiff resides, if the defendant be a nonresident of this state, or be absent, so that process cannot be served; and the manner of making such parties defendants so as to authorize a judgment against them in other chancery cases, shall be observed. If the defendant be a resident of this state, the complaint shall be filed in the county in which such defendant resides or may be found at the time, or in the county of the residence of the parties at the time of separation, if the plaintiff be still a resident of such county when the suit is instituted.
      A complaint for divorce based solely on the grounds of irreconcilable differences shall be filed in the county of residence of either party where both parties are residents of this state. If one (1) party is not a resident of this state, then the complaint shall be filed in the county where the resident party resides.
      Transfer of venue shall be governed by Rule 82(d) of the Mississippi Rules of Civil Procedure.
      Miss. Code Ann. § 93-5-11 (Rev. 2013).

      Mississippi Rule of Civil Procedure 12(g) provides that "[a] party who makes a motion under this rule may join with it any other motions herein provided for and then available to him...." Miss. R. Civ. P. 12(g).