IN THE SUPREME COURT OF MISSISSIPPI NO. 2015-CA-00349-SCT SPENCER IV

Y , ON BEHALF OF HIMSELF AND THE OTHER WRONGFUL DEATH BENEFICIARIES OF CHARLENE IV Y

v. EAST MISSISSIPPI STATE HOSPITAL

DATE OF JUDGMENT: 01/26/2015 TRIAL JUDGE: HON. ROBERT W ALTER BAILEY TRIAL COURT ATTORNEYS: JAMES M. PRIEST, JR. JEANNIE HOGAN SANSING COURT FROM W HICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: DAVID NEIL McCARTY JAMES M. PRIEST, JR. ATTORNEY FOR APPELLEE: JEANNIE HOGAN SANSING NATURE OF THE CASE: CIVIL - W RONGFUL DEATH DISPOSITION: REVERSED AND REMANDED - 05/12/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE RANDOLPH, P.J., LAMAR AND KITCHENS, JJ. LAMAR, JUSTICE, FOR THE COURT: ¶1. The d ef

initive question in this appeal is if t he Director of the East Mississippi State
H o s p i t al (“EMSH”) 1 is the proper “chief executive of f icer” f or n otice purposes under the Mississippi Tort Claim s Act ( “MTCA”), a s opposed to t he E x e c u t i v e Director of the

1 E M S H is a “state p sy c hi a t r i c ho sp ital an d in stitu t io n ,” estab lish ed in 1 8 8 2

. S ee M iss. C o d e A n n . § 4 1 -1 7 -3 (R ev . 2 0 1 3 ).Departm ent of M ental Health (“DMH”). W e f ind that EMSH’s Director is the CEO under the MTCA, and we theref o re reverse and rem and.
FACTS AND PROCEDURAL HISTORY ¶2. According to the c om plaint in this case, Charlene I vy was adm i tted to EMSH on May 11, 2012, and she died on J uly 17, 2012. Alleging m edical negligence by EMSH s t af f , Ivy ’s

s o n S p e n c e r sent a Notice of Claim l etter via certif ied m ail dated July 1 1, 2013, to EMSH Director Charles Carlisle. C arlisle signed f or t he letter on July 15, 2013, as evidenced by the return receipt. ¶3. Ivy then f

iled a wrongf

ul-death suit against EMSH on January 2, 2014. E MSH f iled

a m otion to dism iss along w ith i ts answer and argued that Ivy had not com plied with the
MTCA notice requirem ents b ecause he had n ot provided notice to the “chief executive of f icer of the State Departm ent of

Mental Health.” C iting Mississippi Code Section 41-4- 11(2), 2 EMSH argued that it was “subje ct to the jurisdiction and control o f the State Departm ent of Mental Health.” As such, EMSH argued, “[ p]roper service of t he Notice of Claim could o nly be had on the E xecutive Director, who h ad b een a ppoi n t e d t o s erve the Board [ of Mental Health] and the DMH, and to head the adm inistrative s ervices at the DMH Central Of

f i ce,” and that Ivy i m

p roperly served presuit notice “on Charles Carlisle, the
f acility director [ of

] E M S H, not on the Execut i v e Director o f the entity charged with the control of EMSH.”

2 “A s o f Ju ly 1 , 1 9 7 4

. . . th e E a st M ississip p i S tate H o sp ital a t M e r id ian

. . . an d an y o th er m e n tal o r in tellectu al d isab i lity f acility th a t m ay b e estab lish ed , sh all b eco m e su b j ect to th e j u risd i ctio n an d c o n tro l o f th e S tate D ep artm en t o f M en tal H ealth .” M iss. C o d e A n n . § 4 1 -4 -1 1 (2 ) (R ev . 2 0 1 3 ). 2¶4. Ivy responded and argued that Section 11-46

- 1 ( j ) l i sted “hospital” as an entity that constitutes the “ State” f

or MTCA purposes. I vy also argued that EMSH exists s eparate and apart f rom the DMH. Af

t er a h earing, the trial j udge agreed with E MSH and dism issed Ivy ’s suit w ith prejudice. The trial judge f ound that EMSH was “not a s e parate state entity subject

to liability

and dam ages apart f

rom D MH,” and that it was a “specialized institution under the direction and c ontrol of [ DMH].” As such, the trial judge said, “proper pre-suit notice” required service “upon the executive d irector of [ DMH], not a f acility m anager o f o ne of the institutions under its jurisdiction and control.” The trial judge f o und f urther that the statute of l im itations w as not tolled because Ivy had “f ailed to com

ply with t he m andatory provisions of Section 11-46-11(1)” and dism issed Ivy ’s com plaint with prejudice. ¶5. I v y n o w appeals to this Court and raises several issues. But we address Ivy ’s f i rs t issue only , which we f

ind d i s p ositive: W hether Carlisle legally was the correct person to serve with notice.
DISCUSSION ¶6. The MTCA’s application is a q uesti o n o f l a w w h i c h this Court reviews de novo

. Tallahatchie Gen. Hosp. v. Howe , 154 So. 3 d 2 9 , 31 ( Miss. 2015). A nd this Court also reviews de novo a trial judge’s grant or denial of a m otion to dism i ss. Id. ¶7. “The basic principle of sovereign im m

unity is that the ‘king can do no wrong.’” Id. (citations om itted). “So the ‘ State is f ree f rom any liabilities unless it carves an exception,’ and t hese exceptions are f ound in tort claim s acts.” Id. ( citations om itted). In M ississippi, through t he MTCA provisions, the State has waived its im mu n i t y and the im m u nity of its

3political s ub d i v isions “f r om claim s f

or m oney dam ages a r ising out of the torts of such
governm ental entities a nd the torts of their e mploy ees while acting within the course and
scope of their em

ploy m ent[ .]” Id. (citing Miss. Code Ann. § 11-46-5(1) (Rev. 2012)). “The
MTCA provides the exclusive civil c ause of action against a g overnm ental entity , and ‘any claim m ade or s u i t f

iled a gainst a governm ental entity or its em ploy ee to recover dam ages f or a ny injury f

or w hich im m

unity has been waived under [ the MTCA] s hall b e brought only under the provisions of [ the M TCA].’” Id. (citing Miss. Code Ann. § 1 1

- 46-7(1) (Rev. 2012)). ¶8. “Specif

ically , a plaintif

f suing a governm ental entity ‘ m ust f i le a notice of claim

with the c hief executive officer o f the governmental e ntity ’ at least ninety day s bef ore f iling his or her com plaint.” Id. (citing Miss. Code Ann. § 11-46-11(1) (Rev. 2 012)) (em phasis added). And if the governm ental entity “ to be sued is a state entity as def ined in Section 1 1-46-1(j)

. . . s ervice of n otice of claim shall be had o nly upon that entity ’s

. . . chief executive of f icer.” Miss. Code A nn. § 11-46-11(2)(a)(ii) (Rev. 2012) (em p hasis added). Section 11-46-1(j), in turn, def ines “ State” as “the State of Mississippi and any of f ice, d epa r t me n t , agency , division, bureau, com m ission, b oard, in s t i t ution, hospital , college, university , airport authority o r other instrum entality thereof , whether or not the body or instrumentality has the authority t o levy taxes or to sue or be sued in its own name. ” Miss. C ode Ann. § 1 1-46-1(j) (Supp. 2015) (em

p hasis added). ¶9. Ivy argues that Carlisle was the “legally correct person to serve.” He points out that
E M SH is a “creature of statute,” “established f or the c a re and treatm ent of persons wit h

4m ental illness, f ree of charge, except as otherwise provided.” See Miss. Code Ann. § 41-17-1 (Rev. 2013). 3 He argues f urther that the Legislature specif ically has declared that EMSH is

a s e parate entity under the law: “ The state psy chiatric hospital and i nstitution established at Meridian by the Act of March 8, 1882, shall continue t o exist as a body politic and corporate , under the nam e o f the ‘East Mississippi S t a t e Hospital,’ with all the privileges

c onf erred and the duties enjoined by law.” Miss. C o de Ann. § 41-17-3 (R e v . 2 0 1 3 ) (em phasis added). So in essence, Ivy argues that, because EMSH exists separately f rom the DMH, it is the “ state entity ” being sued, and Carlisle was the proper party t o n otif y . W e
agree. ¶10. As detailed above, a plaintif f suing a governm ental entity “m ust f ile a n otice of

claim with t he c h ief executive o

fficer of the governmental entity ” at least n inety day s bef ore f iling his or her com

plaint. Miss. Code Ann. § 11-46-11(1) (Rev. 2012) (em phasis added). And if t h e “ g o v e r n me n t al entity ” t o be sued is a “state entity ” as def ined in S ection 11-46-1(j), service of notice of claim shall be had only upon that entity’s

. . . c h i ef executive of f icer.” Miss. Code Ann. § 11-46-11(2)(a)(ii) ( Rev. 2 012) (em phasis added). Section 11-46-1(j), in turn, def ines “State” as “the State of M i s s i s s i p pi a nd any . . . hospital

. . . or other instrum entality thereof

, w hether or not the b ody or i nstrumentality has the authority to levy

t a x e s o r t o sue or be sued in its own name. ” Miss. Code Ann. § 1 1-46-1(j) (Supp. 2015) (em phasis added). Thus, based on the plain l anguage of the MTCA statutes and the Title 41

3 N o tab ly , th is statu te in itially w as co d if

ied b y th e L eg islatu re in 1 8 9 2

. 5statutes discussed above, w e f i n d that the “state e ntity ” here is EMSH, a n d t hat its CEO is Charles Carlisle. 4 ¶11. This Court addressed a sim ilar issue in Harris v. Mississippi V alley State University , 873 So. 2d 970 (Miss. 2 004). There, R osetta Harris sued her f orm er em ploy er, MVSU, f

or wrongf ul term ination and several other claim s. Id. at 976. H arr i s a r g u e d t h at she had “substanti a l l y c o mp lied” with the MTCA’s notice provisions, because she h ad f iled a grievance with the B o a r d o f T r ustees of the IHL. Id. at 988. But this Court rejected that
argum ent, f

inding that “ [ t]he MTCA’s def inition of s t a te entities includes colleges and universities. Miss. Code Ann. § 11-46-[ 1 ] (j). T heref ore, the P resident of MVSU is the chief executive of

f icer of the university

. IHL is not a substitute f or the President o f MVSU.” Id.

at 988. The sam e is t rue here; Section 11-46-1(j)’s def inition of “State” i ncludes h ospitals, and the DMH is not a substitute f or EMSH’s CEO. ¶12. EMSH argues strenuously that it is m e rely a DMH “f acility ,” and that the only C EO

contem plated in the s tatutes is the Executive Director of DMH. It cites s everal statutes to support its a rgum e nt, including Section 41-4-2 5 a n d S e c t i on 41-4-11(2). 6 But we are not

4 EMSH does not argue that another person b esides Carlisle is i ts CEO and should have b een notif

ied at EMSH; rather, it argues that it cannot have a CEO f or MTCA p urposes, because it is m erely

a part of the DMH.

5 “T h e p u r p o se o f [ th e M e n tal H ealth R ef o rm A ct o f 2 0 1 1 ] is to co o rd in ate, d ev e l o p , im p ro v e, p lan f

o r, an d p ro v id e all serv ices f o r p erso n s o f th is state w ith m en tal illn ess, em o tio n al d istu rb an ce, alco h o lism , d ru g d e p e n d en ce, an d a n in tellectu al d i sab ility ; to p ro m o te, saf

eg u ard an d p r o tec t h u ma n d ig n ity , so cial w e ll-b ein g an d g en eral w elf are o f th ese p e rso n s u n d

er th e co h e sive co n tro l o

f o n e ( 1 ) co o rd in a tin g a n d resp o n sib le a g en cy so th at m en tal h ealth an d in tellectu al d isab ility serv ices an d f acilities m ay b e u n if

o rm ly p ro v id ed m o re e f

f icien tly an d eco n o m ically t o an y resid en t o f th e S tate o f M ississip p i; an d f u rth er to seek m ean s f

o r t h e p rev en tio n o f th e se d isab ilities.” M iss. C o d e A n n . § 4 1 -4 -2

6convinced that these statute s s o m e h ow render E MSH a m e r e f acility of the DMH; indeed, the L egislature established EMSH in 1882. Stated dif f erently , sim

ply b e c a u s e t h e L e g i s l a t

u re has since given t he DMH authority over E MSH does n ot m ean that E MSH h a s b e en subsum ed by

the DMH and is no longer a “state entity .” ¶13. But perhaps m ore im portantly , EMSH’s position i s n o t s u p p o r t ed b y the MTCA’s plain language, as detailed above. T he statutory phrase used is “state entity ,” n ot “state
agency .” So EMSH’s argum e nt that presuit notice m ust “be served on t he c hief executive of f icer of a state agency ” is sim ply incorrect. As such, w e r e v e r s e t he trial court’s order dism issing the case and rem and f or proceedings consistent with this opinion.
CONCLUSION ¶14. Charles Carlisle i s EMSH’s—the “ state e ntity ’s”—CEO u n d e r t h e M T C A. And b e c a u s e Ivy p rovided presuit notice to the p roper party , the trial judge erred wh e n h e dism issed Ivy ’ s com

plaint with prejudice. W e theref ore reverse the judgm ent of the Lauderdale County Circuit Court and rem and this case f or proceedings consistent with this opinion. ¶15. REVERSED AND REMANDED

. WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING, COLEMAN, MAX WELL AND BEAM, JJ., CONCUR.
(R ev . 2 0 1 3 ) (em

p h a sis ad d ed )

. 6 “A s o f Ju ly 1 , 1 9 7 4 , t h e M ississip p i S tate H o sp ital at Wh itf ield , th e E ast M ississip p i S tate H o sp ital at M erid ian , th e E llisv ille S tate S ch o o l a t E llisv ille, th e N o rth M ississip p i R e g i o n al C en ter at O x f

o rd , an d an y

o th er m en t al o r in tellectu a l d isab i lity f acility th at m ay b e estab lish ed , s h all b eco m e su b ject to t h e ju r isd ictio n a n d c o n tro l o f th e S ta te D ep a rtm en t o f M en ta l H ea lth

. ” M i ss. C o d e A n n . § 4 1 -4 -1 1 (2 ) (R ev . 2 0 1 3 ) (em p h asis ad d ed ). 7