text:
    THE MISSISSIPPI BAR v. Yvonne L. HUGHES
    No. 2018-BD-00196-SCT
    Supreme Court of Mississippi.
    September 25, 2018
    ORDER OF DISBARMENT
   ¶ 1. This matter is before the Court, en banc , on the amended formal complaint filed by the Mississippi Bar against Yvonne L. Hughes, a licensed Mississippi attorney. The Bar requests reciprocal discipline based on Hughes's disbarment by the Supreme Court of Louisiana on May 11, 2007, and asks that this Court order Hughes to pay the costs and expenses of filing the formal complaint and amended formal complaint.

¶ 2. On April 22, 2004, the Supreme Court of Louisiana issued a decision removing Hughes from judicial office based on the recommendation of the Judiciary Commission of Louisiana ("Commission"). In re Judge Yvonne L. Hughes , 874 So.2d 746 (La. 2004). The court's opinion related that Hughes had been a judge of the Orleans Parish Juvenile Court, Division "C." Id. at 752. The Commission had filed fifteen formal charges against Hughes based on her activities as an attorney and three formal charges based on her activities as a judge. Id. at 753, 757. After the Commission's two-part hearing on the charges, it recommended that Hughes be removed from judicial office and that the record should be forwarded to the Lawyer Disciplinary Board for consideration of whether she should retain her license to practice law. Id. at 758-59.

¶ 3. The Supreme Court of Louisiana, which has exclusive original jurisdiction in judicial disciplinary proceedings, found that the charges filed by the Commission were substantiated by clear and convincing evidence. Id. at 752. That court issued a forty-five page opinion, with an unpublished appendix, detailing its findings of Hughes's judicial misconduct and her unprofessional conduct as an attorney and judicial candidate. Id. at 746-91. Because the record evinced an extraordinary pattern of misconduct, the Louisiana court concluded, "Judge Hughes has demonstrated a blatant and incorrigible inability to conform to the rules imposed on any aspect of her career B be it notary, attorney, candidate, or judge." Id. at 790.

¶ 4. The court found that, in Hughes's capacity as a practicing attorney, she repeatedly had taken money from clients and had failed to perform the services for which she had been retained, and then she refused to refund the fees. Id. at 785. Out of the nine charges involving Hughes's failure to account to former clients and/or to refund unearned fees, the court singled out several incidents for discussion as particularly representative of Hughes's misconduct. Id. at 775 n.16.

¶ 5. In one such incident, Hughes accepted representation of Donald Jones, who paid her $2,500 to handle his criminal case. Id. at 778. But when Hughes failed to appear at Jones's guilty plea hearing, Jones was forced to hire his codefendant's attorney to represent him, despite the fact that he believed this created a conflict of interest. Id. at 779. In her defense, Hughes claimed that she had taken part in plea negotiations and had arranged for the codefendant's counsel to represent Jones at the guilty plea hearing. Id. Not only did Jones deny any knowledge of that arrangement, but the assistant district attorneys involved with the plea bargain had no recollection of Hughes's involvement. Id. Hughes did not refund the unearned fees. Id.

¶ 6. In another matter, Troy Dews paid Hughes a $2,500 retainer to represent his nephew on criminal charges in federal district court in Mississippi. Id. at 780. Hughes agreed she would investigate the charges and visit the nephew, who was incarcerated in Jackson, Mississippi. Hughes neither made an appearance at the arraignment nor requested a continuance. Id. at 780. Hughes did travel to Jackson, but never visited the nephew; instead, she attended a gospel concert and visited an ill friend. Id. Having discerned that Hughes had done nothing in the case, Dews spent six weeks begging for a refund, after which Hughes sent him a partial refund check that was returned twice for insufficient funds. Id. At the hearing, Hughes conceded that she probably owed Dews money and that she never had given him an accounting. Id. Hughes explained she had not repaid Dews because doing so would not have stopped the disciplinary proceedings. Id. The court described Hughes's excuse as "especially disturbing" and found that her misconduct had brought Louisiana's attorneys and judiciary into disrepute. Id. at 781.

¶ 7. In another Louisiana incident, twenty-one days prior to assuming office as a juvenile court judge, Hughes accepted representation of Dorian Ferguson in a criminal matter pending in Jefferson Parish. Id. at 782. Ferguson's family paid Hughes $700 toward the representation. Id. Hughes appeared as counsel of record; but after she assumed judicial office, she abandoned the representation. Id. at 783. When Ferguson contacted Hughes after she had failed to appear at a motions hearing, she said she had referred the matter to another law firm that had agreed to handle the case for the same total fee Hughes had negotiated, $1500. Id. But when the family contacted the law firm, it demanded $3500. And Hughes refused to refund the $700 she had received from Ferguson's family. Id. at 783-84.

¶ 8. Next, the court addressed Hughes's misconduct regarding her acceptance of a $1500 retainer to represent Lana Turner's son on a second degree murder charge. Id. at 784. Hughes spent $500 of the retainer on an investigator; but when she assumed judicial office, she abandoned the representation without informing the client or his mother. Id. at 784. Without obtaining permission from the Turners, she arranged for another attorney to take over the case. Id. When Lana Turner demanded a refund, Hughes refused to refund any portion of the fee. Id. at 785.

¶ 9. The Supreme Court of Louisiana found that these and numerous similar charges involving Hughes's refusal to refund unearned fees or to account to clients had been established by clear and convincing evidence. Id. at 775 n.16. Its description of the other similar charges was contained in an unpublished appendix. Id. at 791. The court found many other instances of attorney misconduct, including that Hughes had failed to maintain a client's files and turn them over to a new attorney, which had jeopardized the case. Id. at 782. The supreme court found that, in connection with that matter, she had ignored a subpoena to appear in court, which the supreme court deemed "egregious, absolutely unacceptable, and totally intolerable." Id. Additionally, the court determined that Hughes had held herself out as a notary public after her notarial commission had been suspended. Id. at 777-78. The court further found that, as a judicial candidate, Hughes had committed repeated, egregious campaign finance reporting violations resulting in the assessment of fines and fees in the amount of $49,400. Id. at 775-77.

¶ 10. After reviewing the voluminous evidence of Hughes's attorney misconduct, the Louisiana court said the following:

The evidence clearly and convincingly establishes that as an attorney, Judge Hughes time and time again took money from people who could ill afford to pay it, did minimal or no work to earn it, and then refused to refund monies she clearly had not earned. Preying upon her clients' lack of education and lack of sophistication in legal matters, Judge Hughes either ignored or cavalierly dismissed complaints that she had failed to perform the services for which she was retained, explaining that her work was all done behind the scenes and that her fees were all earned. However, she failed to produce any records that might substantiate her claims and failed to account to her clients for their hard-earned dollars.
Such conduct is inexcusable. Judge Hughes' documented failure to account to her clients, to return unearned fees even after acknowledging that refunds were owed, to appreciate the significance of holding herself out as a notary when she holds no notary commission, and to abide by the basic rules of law that govern all citizens, not just lawyers and judges (such as campaign finance laws and valid subpoenas) is persistent and public conduct prejudicial to the administration of justice that warrants discipline. We find the Lawyer Charges were proved by clear and convincing evidence and establish a pattern of misconduct relevant to our determination of the ultimate sanction to be imposed.

Id. at 785.

¶ 11. Examining her actions in her capacity as a juvenile court judge, the Supreme Court of Louisiana found that Hughes had abused her parole authority by releasing at least nine hundred adult arrestees from jail in a two-year period. Id. at 762. Further, the court found that Hughes had associated with convicted felons and had allowed several such persons actually to work at the court although they were not court employees. Id. at 765. For example, Hughes had permitted several convicted criminals, not employed by the court, to use the court's computers to type judgments; she also gave them access to confidential juvenile records. Id. The court found that Hughes had created a vast backlog in her preparation of judgments, causing unnecessary delays and even dismissals, and that she had failed to hold court at regular hours, which negatively had impacted parties, witnesses, and attorneys. Id. at 771. Additionally, the court found, Hughes had held court by telephone and had tape recorded proceedings when no court reporter was available; and she allowed staff members to "preside" in her absence. Id. at 772. The court also found that Hughes had failed to cooperate with the Commission's investigation by failing to respond to subpoenas and by claiming some of her case files had been destroyed by a fire although the purported fire had occurred before she had received the cases. Id. at 786.

¶ 12. The supreme court found that Hughes had violated "Canons 1, 2 A, 2 B, 3 A(1), 3 A(3), 3 A(4), 3 A(7), 3 B(1), and 7 B(1)(a) of [Louisiana's] Code of Judicial Conduct, as well as the constitutional standard articulated in La. Const. art. V, § 25 (C)." Id. at 787. Because of Hughes's repeated wilful misconduct relating to her judicial duties that brought her judicial office into disrepute, conduct prejudicial to the administration of justice, pattern of administrative incompetence, failure to respect and abide by the rule of law, and persistent pattern of conduct violating the Code of Judicial Conduct and the Louisiana Constitution, the supreme court removed her from judicial office, reserving to the disciplinary board the right to institute lawyer disciplinary proceedings. Id. at 788-90.

¶ 13. On July 2, 2004, the Supreme Court of Louisiana, on consideration of a petition for interim suspension for threat of harm filed by the Office of Disciplinary Counsel, suspended Hughes on an interim basis pending further order of the court. In re Yvonne L. Hughes , 876 So.2d 772 (La. 2004). On March 17, 2005, the Office of Disciplinary Counsel ("ODC") filed formal charges against Hughes, alleging her conduct violated Rule 8.4(d) of the Rules of Professional Conduct. In re Yvonne L. Hughes , 956 So.2d 575, 576 (La. 2007). Hughes answered and denied any misconduct. Id. At a hearing on August 9, 2005, the ODC introduced the record and supreme court decision in Hughes's judicial disciplinary proceedings. Id. n.1. Hughes failed to appear. Id. Based on its review of the evidence, the hearing committee recommended that Hughes be disbarred permanently and, upon review, the disciplinary board agreed. Hughes did not object to the disciplinary board's recommendation. Id. On May 11, 2007, based on a review of the record and the disciplinary board's recommendation, the Supreme Court of Louisiana imposed permanent disbarment. Id. The court found that "[t]he seriousness and pervasiveness of respondent's misconduct in all aspects of her legal career readily demonstrate[s] that she is not fit to maintain her license to practice law." Id.

¶ 14. The Mississippi Bar has filed a formal complaint and an amended formal complaint against Hughes in this Court requesting reciprocal discipline based on her disbarment in Louisiana. "The Supreme Court of Mississippi ... has exclusive and inherent jurisdiction of matters pertaining to attorney discipline ...."

M.R.D. 1(a). Hughes is a licensed attorney in Mississippi and is subject to the disciplinary jurisdiction of this Court. Mississippi Rule of Discipline 13, which governs reciprocal discipline, provides:

When an attorney should be subjected to disciplinary sanctions in another jurisdiction, such sanction shall be grounds for disciplinary action in this state, and certification of such sanction by the appropriate authority of such jurisdiction to the Executive Director of the Bar or to the Court, shall be conclusive evidence of the guilt of the offense or unprofessional conduct on which said sanction was ordered, and it will not be necessary to prove the grounds for such offense in the disciplinary proceeding in this state. The sole issue to be determined in the disciplinary proceeding in this state shall be the extent of the final discipline to be imposed on the attorney, which may be less or more severe than the discipline imposed by the other jurisdiction.

M.R.D. 13.

¶ 15. Under Rule 13, the certified copy of the order of disbarment entered by the Supreme Court of Louisiana is "conclusive evidence of the guilt of the offense or unprofessional conduct on which said sanction was ordered." M.R.D. 13. This Court will not engage in further fact finding after another jurisdiction has imposed a sanction on an attorney. Miss. Bar v. Dorhauer , 38 So.3d 610, 612 (Miss. 2009). The only issue for determination is the extent of final discipline to be imposed upon the attorney in Mississippi. Id. (citing Miss. Bar v. Ishee , 987 So.2d 909, 911 (Miss. 2007) ).

¶ 16. This Court may impose a sanction that is more severe or less severe than that imposed by another jurisdiction. Dorhauer , 38 So.3d at 613. The Court applies nine criteria in determining the appropriate sanction in an attorney discipline case:

(1) The nature of the misconduct involved; (2) the need to deter similar misconduct; (3) the preservation of dignity and reputation of the legal profession; (4) the protection of the public; (5) sanctions imposed in similar cases; (6) the duty violated; (7) the lawyer's mental state; (8) the actual or potential injury resulting from the misconduct; and (9) the existence of aggravating or mitigating factors.

Miss. Bar v. Ogletree , 226 So.3d 79, 83 (Miss. 2015). "Each criterion need not be addressed separately, 'so long as each is taken into consideration.' " Miss. Bar v. Beal , 167 So.3d 180, 186 (Miss. 2014).

¶ 17. Under the reciprocity doctrine, "the sanction imposed in this State generally mirrors the sanction imposed in the sister state, absent extraordinary circumstances which compel, justify or support variance from the foreign jurisdiction's sanction." Miss. Bar v. Gilmer , 949 So.2d 689, 690 (Miss. 2006). An attorney subject to reciprocal discipline may present any mitigating factors the attorney wishes for the Court to consider in determining the sanction to be imposed. Id.

¶ 18. In imposing the sanction of permanent disbarment upon Hughes, the Supreme Court of Louisiana explicitly or implicitly considered all nine criteria utilized by this Court to determine an appropriate sanction for attorney misconduct. Hughes did not respond to the Mississippi Bar's motion for reciprocal discipline, and thus she has presented no mitigating factors for our consideration. No extraordinary circumstances compel, justify, or support variance from the sanction of disbarment imposed by the Supreme Court of Louisiana. Rather, the facts ascertained by the Supreme Court of Louisiana and the discipline imposed by that court after careful consideration of Hughes's conduct under the Rules of Professional Conduct fully support this Court's imposition of the sanction of disbarment. Therefore, based on the record before us, the Mississippi Rules of Discipline, and our case law, this Court finds that Yvonne L. Hughes shall be disbarred.

¶ 19. IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED as follows:

1. Yvonne L. Hughes is hereby permanently DISBARRED from the practice of law in the State of Mississippi;
2. This order shall constitute notice of permanent disbarment in this cause;
3. The Clerk of this Court shall forward an attested copy of this order to Yvonne L. Hughes and to the Executive Director of the Mississippi Bar;
4. Yvonne L. Hughes shall, within thirty days following entry of this order, notify clients and affected courts of her disbarment, properly disburse all funds she may hold in trust, and comply with all other requirements applicable to disbarred attorneys pursuant to Mississippi Rule of Discipline 11 ;
5. Yvonne L. Hughes shall, within forty-five days following entry of this order, file an affidavit with this Court stating that all of her clients have been notified of her disbarment and her consequent inability to practice law in Mississippi, and that she has complied fully with all requirements set forth in Mississippi Rule of Discipline 11, as well as the requirements of this order;
6. The Clerk of this Court shall immediately forward an attested copy of this order to the Clerks of the United States District Courts for the Northern and Southern Districts of Mississippi, the Clerk of the United States Court of Appeals for the Fifth Circuit, and the Clerk of the Supreme Court of the United States;
7. Costs and expenses of the formal complaint and amended formal complaint are hereby assessed against Yvonne L. Hughes.

SO ORDERED.

/s/ James W. Kitchens

JAMES W. KITCHENS, PRESIDING JUSTICE FOR THE COURT


source: Caselaw Access Project

author: KING, JUSTICE, FOR THE COURT:

license: Public Domain

text:
    Terry L. HILL a/k/a MS Fly a/k/a Terry Hill a/k/a Terry Lamont Hill v. STATE of Mississippi
    NO. 2017-KA-01130-SCT
    Supreme Court of Mississippi.
    August 23, 2018
    ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER, BY: MOLLIE MARIE McMILLIN, GEORGE T. HOLMES, JACKSON
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: KATY TAYLOR GERBER
    BEFORE RANDOLPH, P.J., KING AND ISHEE, JJ.
   KING, JUSTICE, FOR THE COURT:

¶ 1. Terry L. Hill was convicted in the Oktibbeha County Circuit Court of one count of robbery, two counts of kidnapping, and one count of sexual battery. Aggrieved, Hill raises one issue on appeal: whether the trial court erred in denying his attorney's motion to withdraw and Hill's motions for new counsel. Because of the defendant's actions prior to and at trial, and because of the substantial evidence against Hill, we affirm the decision of the trial court.

FACTS

¶ 2. In the early morning hours of May 1, 2016, two men entered the house of Mississippi State University student Carly Stovall in Starkville. The men sexually assaulted Carly and robbed Stephen, her boyfriend at the time, of his iPhone. Law enforcement officers arrived on the scene while the two men were present. Corporal Christopher Jackson, an officer with the Starkville Police Department, testified that he received a call that a sexual assault was occurring. He proceeded to the area with Sergeant George Coleman. Corporal Jackson observed someone peeking through the windows of the house. He walked to the front door, and a man opened the door. Corporal Jackson identified the man as Hill. Hill greeted the officer and stated that he was a neighbor and that he was the one who had called 911. Corporal Jackson ordered Hill to put his hands up. Sergeant Coleman then entered the house and identified as Hill the man to whom he had observed Corporal Jackson speaking. Shortly afterward, Stephen appeared in the doorway and said, "get him." Carly then appeared and started screaming, "that's the guy who raped me."

¶ 3. Hill ran out the door, and the officers chased him. In the meantime, Stephen and Carly went to the hospital. There, Stephen informed the policemen that he did not have his iPhone. Stephen used a police officer's phone to log into the "Find my iPhone" application, a GPS tracking system, which enabled the police officers to track the phone. Officer Andrew Jenkins, a patrol officer with the Starkville Police Department, stated that on Sunday, May 1, 2016, law enforcement officers tracked Hill using Stephen's iPhone and informed him that Hill was on the MSU campus. Officer Jenkins went to the indicated area. While searching, a sergeant with the MSU police department noticed an open door that led to a crawl space under a house and wet footprints just inside the door. The sergeant called for a K-9 unit. At approximately 6:40 a.m., Officer Jenkins followed the K-9 unit under the house and found Hill in the left corner. Stephen's iPhone was found on Hill's person.

¶ 4. The Oktibbeha County Hospital staff performed a rape kit on Carly. Kathryn Rogers, a forensic deoxyribonucleic acid (DNA) analyst with Scales Biological Laboratory, testified that the vulvar swabs contained a mixed DNA profile consisting of at least two individuals and included sperm cells. Hill could not be excluded as a contributor; however, 99.99 percent of the general world population would be excluded from the mixture. The vaginal swabs contained a DNA profile from one major contributor which matched Hill's buccal swabs. Rogers testified that particular frequency is less than one in 999 trillion. In summary, Hill could not be excluded as a contributor to the sperm cells on the vulvar swab and he was a match to the major contributor of the mixture found in the sperm fraction of the vaginal swabs.

PROCEDURAL HISTORY

¶ 5. The trial court appointed public defender Stephanie Mallette to represent Hill. Hill was indicted on six counts: Count I, Robbery; Count II, Kidnapping; Count III, Kidnapping; Count IV, Aggravated Assault; Count V, Sexual Battery; and Count VI, Rape. Hill pleaded not guilty to all counts.

¶ 6. On July 27, 2016, Mallette filed a Motion to Withdraw, stating that Hill had advised her that he was not indigent and that he no longer desired Mallette to represent him. On January 5, 2017, at a hearing on the matter, Hill requested that the court appoint a different attorney to represent him, stating:

Because me and my counselor are not compromised in our - my - in this case. We can't agree on anything. I have filed many letters. I never get a response, and I just feel as though she's not qualified for this case.

The trial court responded that it would not grant the appointment of a new attorney but instructed Mallette to respond to any letters that she received in the future. Mallette stated that she had responded to every letter that Hill had written to her with the exception of the most recent one, because she had received the letter during the Christmas break.

¶ 7. On January 17, 2017, Hill filed a "Motion for Appointment of New Counsel." Hill stated that Mallette had failed to investigate properly "numerous" avenues of exculpatory evidence and mitigating facts, including street video surveillance, police body-camera footage, cellphone data from the victim's phone, illegal drug and alcohol usage by the victims, and evidence that the police knew of high drug usage around the Bin 612 in Starkville. Hill alleged that Mallette's representation fell well below the standard of competent counsel.

¶ 8. Hill's trial was scheduled for July 24, 2017; however, the State did not elect to call Hill's case for trial on that date. Hill's codefendant Jerry Talley's trial had been scheduled for July 31, 2017. Subsequent to that time, counsel for Talley had been allowed to withdraw from the case, rendering Talley's trial impossible on July 31. The district attorney then called Mallette and informed her that the State was ready to proceed against Hill on July 31. Mallette indicated that she was prepared for trial.

¶ 9. On July 27, 2017, at a hearing before the trial court, Mallette stated that Hill again had demanded that the court appoint him a different attorney. The trial court requested that Hill address the court from the podium. Hill declined and then stated, "It's not a problem. We [are] just having issues and I feel as though she's going to represent me. I want her to be my attorney." The trial court then directly asked Hill if he wanted Mallette to be his attorney, and Hill responded that he did. The trial court asked Mallette if she was prepared to begin trial, and Mallette again represented that she was prepared for trial at that point.

¶ 10. On July 31, 2017, the State called Hill's case for trial. Mallette requested a continuance, arguing that Hill had identified Talley in exchange for the State's consideration of Hill's cooperation. Mallette contended that the State did not give Hill's cooperation any consideration and that the State had changed its agreement to try Talley before Hill. It was undisputed that the State and the defense never had any written agreement. The State responded that no promises had been made to Hill and that the State had considered the fact that Hill had identified Talley but balanced that consideration with the allegations against Hill. The State then decided that Hill did not deserve much consideration. The State also argued that Hill had destroyed his own chances of cooperating with the State when Hill stated under oath that he had no involvement in the case. The State alleged that Hill had made himself an unreliable and useless witness by under oath denying any involvement in the incident. Therefore, the State decided that, because of Hill's habitual-offender status, any plea offer the State would be prepared to make would involve more time served than his counsel reasonably could recommend that Hill accept.

¶ 11. Mallette responded that the State now had made her a witness in the case because the State had alleged that no promise had been made to Hill that he would receive consideration by the Starkville Police Department. Mallette alleged that the State's contention was not true and that she had been a party to the conversation in which Hill was promised consideration if he cooperated. The trial court denied Mallette's motion for continuance, reasoning that Mallette had announced on two separate occasions that she was prepared for trial; the trial court found, therefore, trial at that point to have resulted in no prejudice to Hill. In addition, the trial court stated that it had no authority to force the State to try Talley's case first. Mallette then requested that the trial court allow her to withdraw because she was a possible witness in the case. Mallette argued that, if the State was going to deny that a promise had been made to Mallette, then Hill would receive consideration for his cooperation in Talley's case, and she would be a definite and necessary witness. The State responded that it would not bring into evidence the fact that Hill had identified Talley. The trial court denied the motion to withdraw.

¶ 12. The State chose not to proceed on the rape and aggravated assault counts and moved to amend the indictment to proceed on one count of robbery, two counts of kidnapping, and one count of sexual battery. The trial court granted the motion.

¶ 13. The case proceeded to voir dire . After the conclusion of voir dire , but before jury selection, Hill advised his attorney that he would prefer to represent himself. Mallette advised Hill that she should do jury selection and that he could represent himself after that process. Hill represented that a conflict of interest existed between him and Mallette. He stated that he did not wish to proceed any further with Mallette on the case. The trial court inquired about the conflict of interest, to which Hill responded:

Well, my attorney, she has - we - we can't agree on anything and all we do is fuss - I mean, fuss back and forth. Been doing this since the beginning, since she's been on my case. I have filed a motion back in January. I don't know if you're aware of this about --.

The trial court then asked Hill if, just the previous week, he had stated that he would like Mallette to represent him. Hill responded that he had answered in the affirmative under pressure, and that he had been threatened.

¶ 14. Hill asked the trial court for a continuance until he could find competent counsel willing to represent him. Hill represented that his family had "a resource that they can get in touch with." Hill then stated:

Well, your Honor, what I wanted to say was, it's a lot of things that hasn't taken place in this case and I don't - I don't know the reason why. You know, I have wrote Stephanie Mallette personally. I have asked for certain witnesses in this case that are not - as potential witness in this case that have some involvement in this case and they are not listed and I don't understand why - why - why is that so. I feel like this is - my life is on the line and I have just as much right as the victim to defend that.

The trial court read Uniform Rule of Circuit and County Court Practice 8.05, regarding pro se defendants, to Hill. Hill stated:

But, your Honor, may I say I understand that - I feel like my attorney has misled this whole process because she wrote me in writing saying that she - she was going to withdraw from my case and I come way up here and talked with her. I did not come in front of the judge at a hearing to clarify that she was going to continue to be my attorney. I've been having problems with this counsel since the beginning and I want - I'm asking, can you please appoint me someone else?

The State responded, stating that while Mallette vigorously had represented Hill thus far, the State could not stop Hill from representing himself. Hill stated that he did not want to represent himself and that he would like the court to give him time to hire an attorney.

¶ 15. The trial court asked Mallette to respond. Before Mallette responded, Hill said, "Well, I'll just continue with Stephanie and I don't have a fair trial, I mean, it's cool. I'll continue." The trial court stated that it would require Mallette to continue as shadow counsel if Hill insisted on representing himself and asked Hill if he wished to continue by himself or with Mallette as his attorney. Hill responded that Mallette could continue to be his attorney. The jury was selected, and the trial proceeded.

¶ 16. Stephen was the first witness to testify. After Stephen was excused, the court took a fifteen-minute recess. At the conclusion of the recess, but before the jury was brought back in, Hill again asserted his desire to represent himself. The trial court informed Hill that he had the absolute right to represent himself and again told Hill the likely consequences of doing so. The trial court stated that, should Hill like to represent himself, it would appoint Mallette as his standby counsel. Hill responded:

Sir, no, sir, I do not want her as my shadow or anything because she's not - she just told me, fuck me. Excuse my language. She just said, fuck me, and I've been dealing with this since this lady been on my case, sir, and I - that's the reason why I do not want ... Stephanie Mallette as my attorney because all she do is threaten my life. She tell me I'm gonna die in prison. She don't have no confidence in this case. She's not asking the right questions. She's not trying to fight under no circumstances.

The trial court again stated that it would allow Hill to represent himself, but, whether Hill objected or not, the trial court was going to appoint Mallette as advisory counsel.

Hill responded that he was under emotional distress and asked for a continuance. The trial court denied the continuance and stated that Hill could use Mallette as much or as little as he needed to.

¶ 17. Hill responded that he was not having a fair trial and asked why the trial court had removed Talley's counsel but still required Hill to be at court. The trial court questioned the relevance of Hill's question. Hill continued talking, making an incriminating statement in the process: "Your Honor, he's a witness in this case just as well as I am. He was there at the same time I was there." The trial court suggested that Hill not make any further statements and stated that it was an excellent example of why Hill needed counsel. Hill then made another incriminating statement, saying "I mean, I never denied not being there no way, your Honor." The trial court stated that it would not change its ruling and that Hill could represent himself or continue with Mallette as counsel. Hill then repeatedly asked the trial court for a continuance to appoint a new attorney. The trial court again denied Hill's requests. Hill became recalcitrant and refused to answer the trial court's questions about whether or not he would like to represent himself, so the trial court stated that it would proceeded with Mallette as his representative.

¶ 18. Shortly afterward, Mallette requested a hearing in chambers. Mallette stated, "I'm not sitting by him. They're fighting with him down the hall. I am scared to death he's going to jump on me." The trial court stated that it had never encountered such a situation and asked if Mallette could sit far enough away from him. The hearing proceeded as follows:

MALLETTE: And he just screamed, I did not rape anybody, I'm innocent, down the hall and I know the jury heard him. There's no doubt the jury heard him.
COLOM: Yeah. He's acting a fool.
GARLAND: Yeah. Bailiffs just kind of all tackled him, so -
COLOM: We need to research that because I think there - you can prosecute somebody in their absence.
MALLETTE: No. Only - no. You have to - Judge Howard - you might want to ask Judge Howard about this because he dealt with this with a crazy one and you have to do the minimal amount of restraint that's safe.
...
THE COURT: That is, you're going to research the law and tell me what I need to do. I've never had a - I've had a few jump up and yell stuff every once in awhile, but I've never had somebody that's acting this belligerent before and, of course, there's no way I can control him because holding him in contempt is absolutely -
...
MALLETTE: Your Honor, my concern is, one, he's going to escalate until he gets what he wants. That is my legitimate concern that until he gets his way, he's going to resort - and I'm the one that's got to sit over there beside him, so -
...
THE COURT: All right. The Court is faced with an unusual situation and that is, outside the presence of the jury, the Defendant, Mr. Terry Hill, became extremely belligerent and noisy and disruptive and I am informed that the bailiffs have had to subdue him as he was going down the hallway. The Court isn't sure what restraints will be necessary on him to continue the trial and by agreement of Counsel, State and Defense, the Court is now going to call the jury back in and recess until one o'clock this afternoon....

After recess, the trial court stated that Hill had calmed down after a "number of deputies" had put him in a jail cell during recess. The trial court decided to place bailiffs next to Hill during the course of the trial. It stated that, although Hill had expressed dissatisfaction with Mallette, the court had not seen anything other than good representation by her.

¶ 19. Mallette moved for a mistrial at this point, arguing that Hill had been screaming that he was innocent and that he had not raped anybody while he was being taken to the cell and that his voice likely could be heard inside the jury room. The trial court instead held that a limiting instruction would be given. Mallette then made another motion to withdraw, alleging that the previous week Hill had threatened to humiliate her and hurt her and, given his conduct at trial, she had no reason to believe that he did not intend to act on his threats. Mallette stated that she was afraid of him, that she was scared of him, and that she no longer had any desire to represent him. She stated that, if the court ordered her to continue representing Hill, she would represent him to the best of her ability, but that her representation would not be one-hundred percent because she was afraid he would hurt her. In an attempt not to alert the jury that extra security measures had been taken, the trial court decided a plain-clothes policeman would sit between Mallette and Hill and that two bailiffs would stand close by. If Mallette needed to confer with Hill, she was instructed to make a motion to the court; the court then would order a recess, enabling Mallette and Hill to go the visitor room at the jail and to confer through the telephones.

¶ 20. Mallette objected to having any law enforcement officers around Hill, arguing that it created an unnecessary impression that he was dangerous and stating that Hill had assured the court that he would not act up anymore. The trial court noted her objection but stated that the officer was in plain clothes and that he did not occupy a position like a deputy sheriff where he would be widely known in the community. In addition, one bailiff was four feet behind Hill and the other bailiff was approximately ten feet from Hill. The trial court stated that bailiffs normally were seen in the courtroom and, therefore, should not be extremely noticeable.

¶ 21. The trial court gave a limiting instruction to the jury when it returned, and the trial again proceeded. Mallette's main defense during trial was to attack the chain of custody for the DNA samples from the rape kit and buccal swab and to challenge the integrity of the DNA samples because the samples had not been refrigerated at all times or stored correctly. Hill opted not to testify, and the defense rested without calling any witnesses.

¶ 22. The jury found Hill guilty of Count I, Robbery; Count II, Kidnapping of Stephen; Count III, Kidnapping of Carly; and Count IV, Sexual Battery. Because the defendant was indicted as a habitual offender pursuant to Mississippi Code Section 99-19-81, the trial court sentenced Hill to serve a term of fifteen years for robbery, thirty years for each count of kidnapping, and thirty years for sexual battery. The sentences were to run consecutively.

¶ 23. Hill filed a Motion for a New Trial or in the Alternative a Judgment Notwithstanding the Verdict, alleging numerous errors by the trial court. The trial court denied the defendant's motion.

¶ 24. On appeal, Hill raises one issue: whether the trial court erred in denying both Mallette's motion to withdraw and Hill's motions for new counsel, the denial of which forced Hill to proceed to trial without adequate representation.

DISCUSSION

¶ 25. Hill argues that, in refusing to allow Mallette to withdraw from representation, the trial court denied Hill his right to counsel under the Sixth Amendment. The Sixth Amendment to the United States Constitution states, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. The Mississippi Constitution provides a similar right: "In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both ...." Miss. Const. art. 3, § 26. "This adept representation encompasses two broad principles: minimum competence and loyal assistance." Rinehart v. State , 883 So.2d 573, 577 (Miss. 2004). In addition, due process of law requires the undivided loyalty of defense counsel. Kiker v. State , 55 So.3d 1060, 1065 (Miss. 2011).

¶ 26. When considering a motion to withdraw as counsel, the trial court enjoys complete discretion. Hill v. State , 134 So.3d 721, 725 (Miss. 2014). Hill's contention that he was denied his right to counsel is based on two arguments: 1) that denying Mallette's final motion to withdraw essentially forced Hill to proceed to the end of trial with counsel who could not represent him without conflict, and 2) that Mallette's fear of Hill left him with an attorney who could not give him "undivided loyalty."

¶ 27. Previously, this Court has held that, in order to grant a substitution of counsel during trial, "the defendant must show good cause, such as a conflict of interest, a complete breakdown of communication, or an irreconcilable conflict which leads to an apparently unjust verdict." Taylor v. State , 435 So.2d 701, 703 (Miss. 1983) (quoting McKee v. Harris , 649 F.2d 927 (2d Cir. 1981) ) (internal citation omitted). "[C]ertain restraints must be put on the reassignment of counsel lest the right be 'manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice.' " Id. (internal citation omitted). In Taylor , prior to trial, the defendant's attorney filed a motion to withdraw from representation, arguing that the defendant had threatened to kill him and had refused to cooperate with him in any way. Id. at 702. At trial, the defendant refused to speak with his attorney and argued that his attorney had not subpoenaed certain witnesses. Id. at 704. This Court affirmed the trial court's decision to deny a continuance and discussed the absurdity that would occur if an accused was allowed to "fall out" with his attorney immediately prior to trial and then insist on a continuance. Id.

¶ 28. Here, the trial court acted within its discretion in denying Hill's motions for a continuance and a new attorney and Mallette's motion to withdraw. Four days before trial began, Hill twice stated to the trial court that he wanted Mallette to represent him. After trial proceedings began, Hill requested a new attorney, alleging that he had asked for certain witnesses in the case and that Mallette had not listed those witnesses. Hill, however, failed to provide, both at trial and on appeal, the names of those witnesses or any detail as to the potential testimony of those witnesses. Thus, Hill has not demonstrated how the witness testimony would have resulted in a different outcome. See Puckett v. State , 879 So.2d 920, 941 (Miss. 2004).

¶ 29. Additionally, the record does not indicate that Mallette was derelict in her duty to represent Hill. "The test is whether the accused has been protected, so far as counsel can do so, in all of his legal rights." Augustine v. State , 201 Miss. 277, 293, 28 So.2d 243, 247-48 (1946). Mallette raised appropriate objections and cross-examined the State's witnesses. Further, Mallette repeatedly attacked the validity of the DNA evidence introduced at trial, questioning witnesses about the lack of refrigeration and improper storage of the DNA samples as well the chain of custody for the evidence. When an attorney provides adequate representation, a personality conflict between an attorney and a client is insufficient to establish an actual conflict. Rowsey v. State , 188 So.3d 486, 498-99 (Miss. 2015). "Counsel is presumed to be competent.... An indigent criminal defendant is not entitled to expert counsel, or to counsel of his own choosing, but only to reasonably effective assistance of counsel." Id. at 499 (citations omitted).

¶ 30. Although Hill argues that the trial court essentially forced him to proceed to the end of trial with counsel who could not represent him without conflict, any conflict that existed at trial was the result of Hill's own actions. Hill became "belligerent" and had to be restrained by the bailiffs. Mallette then became concerned for her own safety and moved to withdraw from representation. After considering its options during a recess, the trial court decided that the best option to continue at that point was to place a plain-clothes policeman between Mallette and Hill and to be sure two deputies were in the courtroom. It specifically stated that, should Mallette and Hill need to confer, the two could do so by passing notes. Mallette also could, on motion, be granted a recess so that she could talk to Hill through the telephone at the jail.

¶ 31. The trial court opted for the least restrictive safety measures available to Hill. As stated in Taylor , absurd results would occur if a defendant was granted a mistrial or continuance after acting "belligerent" during trial proceedings. Taylor , 435 So.2d at 704. See also Fairley v. State , 467 So.2d 894, 899 (Miss. 1985) (stating that absurd results would occur if a defendant was granted a claim of inadequate representation after refusing to cooperate at trial with appointed counsel). In addition, we cannot state with any certainty that the conflict between Mallette and Hill led to an apparently unjust verdict. The State presented substantial evidence against Hill, including eyewitness testimony, video-camera footage, and DNA evidence.

CONCLUSION

¶ 32. Accordingly, because Hill affirmatively stated four days before trial that he would like Mallette to represent him, because any conflict that existed was the result of Hill's own actions, because Mallette adequately represented Hill, and because of the overwhelming evidence introduced against Hill, we find that the trial court's denial of Mallette's motion to withdraw did not deprive Hill of due process or a fair trial. The trial court acted within its discretion in denying Hill's requests for new counsel and in denying Mallette's motion to withdraw. Therefore, we affirm the judgment of the trial court.

¶ 33. AFFIRMED.

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

      A pseudonym has been used throughout this opinion.

      A pseudonym has been used throughout this opinion.

      Sergeant Coleman was wearing a body camera which captured the unfolding events.

      Officer Jenkins's body camera also captured the events leading to Hill's arrest.

      Mallette pointed out that Rule 8.05 no longer existed. The trial court stated that the corresponding Mississippi Rule of Criminal Procedure was substantially similar and that it believed that Hill had been advised properly of the probable effect of representing himself.


author: COLEMAN, JUSTICE, FOR THE COURT: KITCHENS, PRESIDING JUSTICE, DISSENTING:

text:
    Brittany SPANN, LPN, Mary McGowan, LPN, Patricia Rhodes, LPN, and Barbara Scott, LPN v. Patsy WOOD, Individually, as Administratrix of the Estate of Patricia Bridgeman Peoples, Deceased, Natural Daughter and Wrongful Death Beneficiary of Patricia Bridgeman Peoples; Sandra Kay Madison, Natural Daughter and Wrongful Death Beneficiary of Patricia Bridgeman Peoples and Samuel Peoples, Natural Son and Wrongful Death Beneficiary of Patricia Bridgeman Peoples
    NO. 2016-IA-01024-SCT
    Supreme Court of Mississippi.
    September 13, 2018
    ATTORNEYS FOR APPELLANTS: ADRIA H. JETTON, BRADLEY W. SMITH, D. STERLING KIDD, JACKSON
    ATTORNEYS FOR APPELLEES: WAYNE E. FERRELL, JR., R. PAUL WILLIAMS, III, JACKSON
    EN BANC.
   COLEMAN, JUSTICE, FOR THE COURT:

¶ 1. Patsy Wood, administratrix of Patricia Peoples's estate and a wrongful death beneficiary, as well as Sandra Kay Madison and Samuel Peoples, Peoples's other children and wrongful death beneficiaries, sued Lakeland Nursing and its employees, primarily the nurses involved in caring for Peoples, for negligence. Lakeland Nursing and Nurses Brittany Spann, Mary McGowan, Patricia Rhodes, and Barbara Scott (collectively "the Nurses") filed motions to dismiss, arguing that Wood did not comply with the presuit notice requirements provided in Mississippi Code Section 15-1-36(15) (Rev. 2012). The Hinds County Circuit Court, First Judicial District, denied the motions to dismiss, and the parties petitioned for interlocutory review.

¶ 2. The interlocutory appeal presently before the Court involves the sole issue of whether Patsy Wood gave proper presuit notice to the Nurses pursuant to Mississippi Code Section 15-1-36(15), such that the circuit court correctly denied the Nurses' motions to dismiss. Finding that Wood failed to do so, we reverse the trial court's denial of the Nurses' motion to dismiss, and we remand for further proceedings consistent with the instant opinion.

FACTS

¶ 3. Peoples, a resident at Lakeland Nursing and Rehabilitation Center, LLC, fell on September 12, 2011, and died from her injuries. Her children sued Lakeland Nursing and the Nurses for negligence. On December 29, 2011, Wood's counsel mailed a letter to Lakeland Nursing stating that "Lakeland Nursing and Rehab Center and its employees were negligent and that their negligence was a contributing proximate cause of ... Peoples's fall, her injuries and her subsequent death." (Emphasis added.) The letter requested Lakeland Nursing's liability insurance information, as well as Peoples's medical records. In July 2013, Wood sent a letter notifying Lakeland Nursing of her intent to sue, and Wood filed her complaint in August 2013 and amended the complaint in September 2013. Though Wood eventually did send the Nurses letters, personally and to their home addresses, informing them of her intent to sue, the sole issue is whether the December 29, 2011, letter provided presuit notice to the Nurses.

¶ 4. Lakeland Nursing and the Nurses filed motions to dismiss, arguing that Wood did not comply with the presuit notice requirements provided in Mississippi Code Section 15-1-36(15) (Rev. 2012). The trial court denied the motions to dismiss based on the December 29, 2011, letter. According to the trial court, "[p]roof that Plaintiffs' letter dated December 29, 2011, is a proper notice of intent to sue letter is the fact that the Defendants retained counsel from the law firm of Baker Donelson, who responded to Plaintiffs' December 29, 2011, notice of intent to sue letter on January 6, 2012, clearly acknowledging that Plaintiffs' December 29, 2011, letter was a proper notice of intent to sue letter."

¶ 5. Following the denial of their motions to dismiss, Lakeland Nursing and the Nurses sought interlocutory review. The Court granted interlocutory appeal and stayed the proceedings in the trial court only as to the trial court's order denying the Nurses' motions to dismiss. The Court denied Lakeland Nursing's interlocutory appeal, and we ordered the trial court to determine if the proceedings against Lakeland Nursing should be stayed.

¶ 6. According to the Nurses, the issue on appeal is "[w]hether a letter to a medical facility requesting a patient's medical records satisfies the presuit notice requirement of [ Section] 15-1-36(15) for all of the facility's current and former employees."

ANALYSIS

¶ 7. The Court applies de novo review in reviewing a motion to dismiss. Scaggs v. GPCH-GP, Inc. , 931 So.2d 1274, 1275 (¶ ) (Miss. 2006). In the instant case, the Court must decide whether, under Section 15-1-36(15), the letter addressed to Lakeland Nursing alone and referencing the negligence of Lakeland Nursing "and its employees" constituted adequate presuit notice to the employees, the Nurses.

¶ 8. To determine the legislative intent behind Section 15-1-36(15), "the Court first looks to the language of the statute. If the words of a statute are clear and unambiguous, the Court applies the plain meaning of the statute and refrains from using principles of statutory construction." Lawson v. Honeywell Int'l, Inc. , 75 So.3d 1024, 1027 (¶ 7) (Miss. 2011) (citations omitted). Section 15-1-36(15) states:

No action based upon the health care provider's professional negligence may be begun unless the defendant has been given at least sixty (60) days' prior written notice of the intention to begin the action. No particular form of notice is required, but it shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered.

Miss. Code Ann. § 15-1-36(15). "The most fundamental rule of statutory construction is the plain meaning rule, which provides that if a statute is not ambiguous, then this Court must apply the statute according to its terms." Buckel v. Chaney , 47 So.3d 148, 158 (¶ 35) (Miss. 2010) (quoting State ex rel. Hood v. Madison Cty. Bd. of Supervisors , 873 So.2d 85, 90 (¶ 19) (Miss. 2004) ). The Legislature's use of the word "defendant," a singular noun, appears to require individual presuit notice to each of several defendants. The Legislature's use of "the" further supports a determination that the Legislature intended each defendant receive presuit notice, especially in light of the Legislature's use of the singular noun "health care provider" in the same sentence. Lakeland Nursing is a healthcare provider, and each nurse involved also is a healthcare provider, so requiring notice to each individual healthcare provider is consistent with the language and purpose of the statute. The clear and unambiguous language of Section 15-1-36(15) requires each defendant to receive presuit notice, even if there is an employer-employee relationship among the defendants.

¶ 9. Also important is that the trial court's denial of the Nurses' motions to dismiss is a clear departure from the Court's wealth of caselaw requiring strict compliance with Section 15-1-36(15). The Court has held unwaveringly that strict compliance with Section 15-1-36(15) is required, and the failure to satisfy the requirements mandates dismissal without prejudice. Fowler v. White , 85 So.3d 287, 291 (¶ 13) (Miss. 2012). The Court explained in Pitalo v. GPCH-GP, Inc. , 933 So.2d 927, 929 (¶ 5) (Miss. 2006), that, "[w]hen drafting [ Section 15-1-36(15) ], the Legislature did not incorporate any given exceptions to [the] rule which would alleviate the prerequisite condition of prior written notice." For example, in Arceo v. Tolliver , 19 So.3d 67, 71-72 (¶¶ 12-21) (Miss. 2009), Myrtis Tolliver appealed the trial court's dismissal of her suit for failing to comply with Section 15-1-36(15) in giving Dr. Salvadore Arceo and St. Dominic Hospital notice. Tolliver's issue on appeal was that, "under the facts of this case, a notice letter was not required[,]" because the case had been ongoing for two years; thus, Dr. Arceo and St. Dominic had actual notice of the claims against them. Id. at 71 (¶¶ 11-12). The Court rejected that actual notice was a substitute for the required statutory notice under Section 15-1-36(15) : "The statute does not provide an exception to notice requirements for medical negligence cases in which a defendant may have actual notice of the particulars of a claim[.]" Id. at 72 (¶ 19). The Court noted that it had "rejected the argument that actual notice of a claim and its details obviates the necessity of written notice under the [Mississippi Tort Claims Act]." Id. While actual notice is not being argued in the instant case, if the Court has held that a party's actual notice of a claim does not satisfy Section 15-1-36(15), then notice to an employer certainly does not satisfy Section 15-1-36(15) as notice to the defendant-employees. Further, the Legislature did not provide an exception that notice to an defendant-employer would satisfy the need to notify any defendant-employees of the impending suit.

CONCLUSION

¶ 10. Because the plain language of Section 15-1-36(15) required Wood to provide presuit notice to each of the nurses and because holding otherwise contradicts our clear caselaw, we reverse the trial court's denial of the Nurses' motion to dismiss and remand the case to the Hinds County Circuit Court for further proceedings consistent with the instant opinion.

¶ 11. REVERSED AND REMANDED.

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

KITCHENS, PRESIDING JUSTICE, DISSENTING:

¶ 12. On September 12, 2011, Patsy Wood observed Lakeland Nursing and Rehabilitation Center, LLC, neglect her mother, Patricia Peoples, a Lakeland resident who suffered from dementia and other medical maladies. Wood informed Lakeland of Peoples's infirmities and warned Lakeland that her mother required constant observation and care because she was susceptible to falling. But upon returning to her home that same day, Wood learned that her mother had fallen from her wheelchair and had been taken to St. Dominic Hospital. Peoples had sustained a large contusion to her head and brain, which ultimately caused her death. Wood, administratrix of Peoples's estate and a wrongful-death beneficiary, and Peoples's other children and wrongful-death beneficiaries, Sandra Kay Madison and Samuel Peoples, sued Lakeland and its employees, averring that Lakeland and its employees had been negligent and that their negligence had caused Peoples's head and brain injuries and, ultimately, her death.

¶ 13. Prior to filing her complaint, Wood had sent a letter on December 29, 2011, informing Lakeland that she intended "to recover damages for injuries and the subsequent death" of Peoples. Under Mississippi Code Section 15-1-36(15) (Rev. 2012), Wood then provided presuit notice to Lakeland and to nurses who she alleged had neglected Peoples, including Brittany Spann, Mary McGowan, Patricia Rhodes, and Barbara Scott. Lakeland and the nurses filed motions to dismiss, arguing that the December 29, 2011, letter did not comply with the presuit notice requirements of Section 15-1-36(15). The Circuit Court of the First Judicial District of Hinds County denied the motions to dismiss, after which Lakeland and the nurses petitioned this Court for interlocutory appeal. We granted interlocutory appeal only as to the nurses' motion to dismiss. Because the motion to dismiss was denied properly, I would affirm the judgment and remand the case for further proceedings. Accordingly, I respectfully dissent.

¶ 14. The following timeline is helpful to an understanding of the facts of this case:

September 12, 2011 Patricia Peoples fell, sustained head and brain injuries, and died.
December 29, 2011 Wood's counsel, Wayne Ferrell, Jr., sent a letter by certified mail to Lakeland stating that the preliminary investigation had "revealed that Lakeland and its employees were negligent and that their negligence was a contributing proximate cause of Ms. Peoples'[s] fall, her injuries and her subsequent death." The letter requested information about Lakeland's liability insurance. The letter also requested Peoples's medical records.
January 3, 2012 The certified letter, which had been mailed by Wood's counsel on December 29, 2011, was marked received by Lakeland.
January 6, 2012 Bradley W. Smith informed Wood's counsel by letter that Baker Donelson Bearman Caldwell & Berkowitz, PC, represented Lakeland. In order to proceed with the records request, Smith required further information, including letters of administration, or an affidavit stating that no estate had been opened, and a medical records authorization.
April 26, 2012 The Baker Donelson law firm sent an invoice to Wood's counsel in the amount of $3,772 "for pre-payment of Patricia Peoples'[s] medical records and administrative file from Lakeland."
July 26, 2013 Wood's counsel sent by certified mail a "Notice of Intention to Initiate Medical Negligence Action" under Mississippi Code Section 15-1-36(15) (Rev. 2012), naming Lakeland, as a defendant.
August 5, 2013 Wood's counsel sent by certified mail a "Notice of Intention to Initiate Medical Negligence Action Pursuant to M.C.A. § 15-1-36(15)" against Lakeland and its employees. Brittany Spann, LPN, Mary McGowan, LPN, Patricia Rhodes, LPN, and Barbara Scott, LPN, were named as employees of Lakeland. The letter was mailed to Spann, McGowan, Rhodes, and Scott at Lakeland's address.
August 29, 2013 Wood's counsel sent by certified mail a "Notice of Intention to Initiate Medical Negligence Action" under Section 15-1-36(15). A. Moore, LPN, was named as an employee of Lakeland and the letter was mailed to Moore.
August 30, 2013 Wood's counsel filed the complaint, which named as defendants Spann, McGowan, and Moore.
September 4, 2013 Wood's counsel sent by certified mail a Notice of Intention to Initiate Medical Negligence Action Pursuant to Section 15-1-36(15). Moore, Spann, Rhodes, and Scott were named as employees of Lakeland. The letter was addressed and mailed to Moore, Spann, Rhodes, and Scott at what appears to be their respective personal addresses.
September 6, 2013 Wood's counsel filed an amended complaint, which named as defendants Spann, McGowan, Moore, Rhodes, and Scott.
September 12, 2013 The two-year statute of limitations of Mississippi Code Section 15-1-36(1) (Rev. 2012) expired.
September 27, 2013 Wood's counsel filed a certificate of consultation, indicating that he had consulted at least one expert qualified to testify as to the standard of care under Mississippi Code Section 11-1-58(1) (Rev. 2014), the Mississippi Rules of Civil Procedure, and the Mississippi Rules of Evidence.
October 9, 2013 According to Wood, Lakeland's agent for service of process was served with the complaint, certificate of consultation, amended complaint, interrogatories, and requests for production.
November 8, 2013 Lakeland filed a motion to dismiss, arguing that presuit notice had not been provided Lakeland at least sixty days prior to the filing of the complaint as required by Section 15-1-36(15).
November 25, 2013 Lakeland asked the circuit court to stay proceedings, including Wood's interrogatories and requests for production pending the court's ruling on Lakeland's motion to dismiss.
December 23, 2013 Wood filed a Motion for Additional Time to Serve Defendants Spann, McGowan, Moore, Rhodes, and Scott with summonses, complaints, amended complaints, and notices of intent to initiate medical negligence actions. Wood also filed a Motion to Compel the Defendants to Answer Interrogatories and Produce Documents Requested in Requests for Production of Documents.
December 26, 2013 Rhodes was served with summons, complaint, interrogatories, and requests for production.
December 27, 2013 McGowan and "Akemi Moore" were served with summons, complaint, interrogatories, and requests for production.
December 28, 2013 Scott was served with summons, complaint, interrogatories, and requests for production.
December 30, 2013 Spann was served with summons, complaint, interrogatories, and requests for production.
January 8, 2014 The circuit court found that Wood had exercised due diligence and granted her an additional 120 days to serve Spann, McGowan, Moore, Rhodes, and Scott.
January 18, 2013 Baker Donelson acknowledged receipt of payment and enclosed "records received from Lakeland ...."
January 27, 2014 Spann, Rhodes, and McGowan filed a motion to dismiss, arguing that presuit notice had not been provided Lakeland at least sixty days prior to the filing of the complaint as required by Section 15-1-36(15). Spann, Rhodes, and McGowan also asked the circuit court to stay proceedings, including Wood's interrogatories and requests for production, pending that court's ruling on Lakeland's motion to dismiss.
February 20, 2014 According to Wood, the circuit court stayed discovery after an oral argument took place.
April 24, 2014 Wood filed her second Motion for Additional Time to Serve Defendant A. Moore.
April 30, 2014 The circuit court found that Wood had exercised due diligence and granted her an additional 180 days to serve "A. Moore, L.P.N., and other Defendants."
May 20, 2014 Scott filed a motion to dismiss, arguing that the presuit notice requirement of Section 15-1-36(15) had not been provided to Lakeland at least sixty days prior to the filing of the complaint.
October 16, 2014 Wood filed a motion seeking an "Order Granting Plaintiffs Additional Time to Serve Defendants With Summons, Complaint, Amended Complaints ...."
June 27, 2016 The circuit court denied Lakeland's motion to dismiss, holding that Wood's December 29, 2011, letter constituted a proper notice of intent to sue pursuant to Section 15-1-36(15). For the same reason, the circuit court also denied motions to dismiss which had been filed collectively by Spann, McGowan, Rhodes, and Scott.

¶ 15. Mississippi Code Section 15-1-36(15) provides that:

No action based upon the health care provider's professional negligence may be begun unless the defendant has been given at least sixty (60) days' prior written notice of the intention to begin the action. No particular form of notice is required, but it shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered.

Miss. Code Ann. § 15-1-36(15) (Rev. 2012). This Court has held that the presuit notice requirement is mandatory. See Price v. Clark , 21 So.3d 509, 519 (Miss. 2009) ("[D]ismissal was the proper remedy for failure to comply with the notice requirements."); Forest Hill Nursing Ctr. and Long Term Care Mgmt., LLC v. Brister, 992 So.2d 1179, 1188 (Miss. 2008) ("[A]s a named party, Forest Hill was entitled to sixty days['] notice before the filing of the suit, failing which, Forest Hill was entitled to dismissal."); Thomas v. Warden , 999 So.2d 842, 847 (Miss. 2008) ("Because Thomas failed to provide a sixty-day notice as required by Section 15-1-36(15), we must affirm the trial court's dismissal of the complaint."); Arceo v. Tolliver , 949 So.2d 691, 694 (Miss. 2006) (Dismissal appropriate because "the plaintiff wholly failed to provide any written notice to any medical provider concerning her intention to commence suit."); Pitalo v. GPCH-GP, Inc. , 933 So.2d 927, 929 (Miss. 2006) ("Pitalo's failure to send to defendants a notice of intent to sue is an inexcusable deviation from the Legislature's requirements for process and notice under Miss. Code Ann. Section 15-1-36(15), and such failure warrants dismissal of her claim.").

¶ 16. But in each of the above cases, the plaintiffs altogether had failed to comply with Section 15-1-36(15) by not providing notice of their intention to file a lawsuit sixty days before filing a complaint. The Court did not consider in those cases the adequacy of presuit notice to the defendant employer and to the defendant employees when the presuit notice was addressed only to the defendant employer. Here, the December 29, 2011, letter informed Lakeland that Wood's attorney, Ferrell, had been retained to represent the plaintiffs "in their efforts to recover damages for injuries and the subsequent death of their mother .... As you are aware Ms. Peoples fell at your nursing home causing a large contusion to her head which subsequently caused her death." The letter continued: "Our preliminary investigation reveals that Lakeland ... and its employees were negligent and that their negligence was a contributing proximate cause of Ms. Peoples'[s] fall, her injuries and her subsequent death."

¶ 17. Wood relies on Scaggs v. GPCH-GP, Inc. , 931 So.2d 1274 (Miss. 2006), and Pope v. Brock , 912 So.2d 935 (Miss. 2005), in support of her argument that the December 29, 2011, letter "was sufficient to put the Defendants/Appellants on notice of the claims and met the requirements of 15-1-36, and as a result thereof the Defendants/Appellants were put on sufficient notice of the claims pursuant to § 15-1-36(15), and Plaintiffs' Complaints were timely filed."

¶ 18. Mary Scaggs, who was scheduled to have surgery, fell and sustained injuries during the preoperative process at Garden Park Medical Center on March 14, 2002. Scaggs , 931 So.2d at 1275. She sent presuit notice to Garden Park on December 10, 2002, and again, represented by other counsel, on January 28, 2004. Id. She sued Garden Park on April 12, 2004. Id. Garden Park sought dismissal or, alternatively, summary judgment because Scaggs's complaint was filed after the statute of limitations had expired. Id. The trial court agreed and granted the motion to dismiss. Id. This Court reversed and remanded, holding that Scaggs's "time to file suit was extended sixty days past the two-year anniversary of her alleged injuries which occurred March 14, 2004." Id. at 1277.

¶ 19. The Scaggs Court based its decision on Pope , in which Ginger Pope, Administratrix of the Estate of Nancy Springer, filed a wrongful death suit against two physicians, Bolivar Medical Center, and University of Mississippi Medical Center on July 30, 2003, "[i]n what she believed was compliance with a statutorily required sixty-day notice period[.]" Pope , 912 So.2d at 936. Because Springer had died on June 2, 2001, the defendants filed motions to dismiss, asserting that the statute of limitations had expired. Id. The trial court granted the motions. Id. On appeal, this Court reversed and remanded, holding that "the most reasonable interpretation of Miss. Code Ann. § 15-1-36(15) and § 15-1-57 tolls the two-year statute of limitations for sixty days." Id. at 939.

¶ 20. Scaggs and Pope provide only that if presuit notice is filed before the expiration of the statute of limitations, the plaintiff has sixty days beyond the statute of limitations within which to file the lawsuit. Those cases are not dispositive of the issue before the Court: whether the December 29, 2011, letter adequately provided notice to Lakeland's employees, the Lakeland nurses, even though those nurses were not specifically named in the letter, nor was the letter mailed to them at their personal addresses.

¶ 21. But in Scaggs this Court recited the principle that:

The duty of this Court is to interpret the statutes as written. It is not the duty of this Court to add language where we see fit. "[O]ur primary objective when construing statutes is to adopt that interpretation which will meet the true meaning of the Legislature." Stockstill v. State , 854 So.2d 1017, [1023] (Miss. 2003) (quoting Anderson v. Lambert , 494 So.2d 370, 372 (Miss. 1986) ).

Scaggs , 931 So.2d at 1276. "Our duty is to carefully review statutory language and apply its most reasonable interpretation and meaning to the facts of a particular case." Hall v. State , 241 So.3d 629, 631 (Miss. 2018) (quoting Corp. Mgmt., Inc. v. Greene Cty. , 23 So.3d 454, 465 (Miss. 2009) ).

¶ 22. Here, Section 15-1-36(15) states that "[n]o action based upon the health care provider's professional negligence may be begun unless the defendant has been given at least sixty (60) days' prior written notice of the intention to begin the action." (Emphasis added.) "[D]efendant," a singular noun, appears to require individual presuit notice to each of several defendants. But the noun "defendant," immediately preceded by the definite article "the" suggests that the legislature did not contemplate a lawsuit, such as the instant one, against a defendant-employer, a corporation, and its defendant-employees.

¶ 23. Wood argues that Lakeland and the Lakeland nurses concealed the nurses' identities and that: "Plaintiffs/Appellees received an Order from the Court allowing them additional time to serve notices of intent to sue and to serve process on the unknown Defendants for which the Plaintiffs/Appellees did not have the addresses of the unknown Defendants and could not obtain addresses for the unknown Defendants." Wood states that:

Despite spending $3,772.00 for the medical records; $500.00 for a written roll of all nurses in Mississippi from the Mississippi Nursing Association; and requests for discovery from the Defendants; the Plaintiffs were unable to identify the names and addresses of the members of the nursing staff[ ] who were involved in the negligent treatment of Patricia Peoples and/or the lack of treatment of Patricia Peoples.

She continues, "[t]he Defendants/Appellants have been grossly uncooperative and on many occasions when notice of claims letters were sent to potential Lakeland ... employees and nurses[,] the letters were refused and/or not accepted." Wood argues that, if the Court is inclined to find that the Lakeland nurses had not been provided presuit notice by the letter dated December 29, 2011, "then Plaintiffs should be given additional time to obtain the full and correct names of the unidentified nurses, their addresses; additional time to serve Notices of Intent to Sue; additional time to name these nurses in an amended Complaint; and additional time to serve these nurses with process and a Second Amended Complaint."

¶ 24. The Lakeland nurses reply that "Plaintiffs sought an extension of time to serve notice and add additional defendants after the Appellant employee-defendants were named as defendants in this action." (Emphasis in original.) But, while the Lakeland defendants were named in the August 5, 2013, notice, in the August 30, 2013, complaint, and in the September 6, 2013, amended complaint, that does not demonstrate that presuit notice was received or that service was perfected. The August 5, 2013, presuit notice was addressed to Spann, McGowan, Rhodes, and Scott, and was mailed to them at their workplace, Lakeland: "3640 Lakeland Lane, Jackson, MS 39216." The letter dated September 4, 2013, was addressed to Spann, Rhodes, and Scott at what appears to be personal addresses; but there is no indication that such mailing was effective.

And Wood maintains on appeal that more time is required.

¶ 25. As this situation demonstrates, an interpretation of Section 15-1-36(15) requiring that presuit notice be sent to each singular defendant, even if the defendants are a defendant-employer and its defendant-employees, is untenable. The parties are arguing about matters properly relegated to the service of process and discovery phases of the litigation. And at all times, both Lakeland and the nurses were represented by one law firm, which responded to the December 29, 2011, letter: "Our firm represents Lakeland Nursing and Rehabilitation Center, LLC." In this context, the only workable interpretation of Section 15-1-36(15) is that presuit notice to the defendant-employer constitutes presuit notice to the defendant-employer's employees.

¶ 26. I would hold that Patsy Wood's December 29, 2011, letter notified Spann, McGowan, Rhodes, and Scott, employees of Lakeland Nursing and Rehabilitation Center, LLC, of the imminence of a lawsuit against them, in accordance with Mississippi Code Section 15-1-36(15) (Rev. 2012). Accordingly, I would find that the Circuit Court of the First Judicial District of Hinds County properly denied the Lakeland nurses' motion to dismiss and would affirm and remand the case to the trial court for further proceedings. I respectfully dissent.

KING, J., JOINS THIS OPINION.

      Wood stated in the motion that she had attempted but had been unable to serve Spann, McGowan, Moore, Rhodes, and Scott at their personal addresses. Moreover, Wood stated that she had requested, via interrogatories and requests for production of documents, "the full names and addresses of [ ] each nurse, employee, staff member, officer, director or physician who was involved in the observation or care of Patricia Bridgeman Peoples," but that Lakeland had refused to answer the interrogatories and requests for production of documents.

      Wood stated that, while she had perfected service on Lakeland, Spann, McGowan, Rhodes, and Scott, she had been unable to serve Moore. Wood's counsel reiterated that Lakeland had refused to answer interrogatories and requests for production of documents.

      "A. Moore" is not a named defendant in the present interlocutory appeal.

      Wood stated that she again had been unable to serve "A. Moore, L.P.N., because the Defendants will not produce A. Moore's full legal name and address, although the Plaintiffs have attempted to serve the Defendant, A. Moore, L.P.N." According to Wood, the circuit court stayed discovery after a February 20, 2014, oral argument and that, thereafter, "Defendants have been using that Court ordered ban on discovery to hide the names, addresses, and liabilities of employees and representatives of Lakeland ... who were involved in [Peoples's] care." This caused Wood to purchase "a list of all nurses registered with the State of Mississippi to identify, locate, and serve the remaining Defendants at an expense of $500.00."

      Mississippi Code Section 15-1-57 states that:
      When any person shall be prohibited by law, or restrained or enjoined by the order, decree, or process of any court in this state from commencing or prosecuting any action or remedy, the time during which such person shall be so prohibited, enjoined or restrained, shall not be computed as any part of the period of time limited by this chapter for the commencement of such action.
      Miss. Code Ann. § 15-1-57 (Rev. 2012).