GREENLEE, J., FOR THE COURT:
¶ 1. Gerboria Mayfield died at Baptist Memorial Hospital-Golden Triangle (BMH-GT) following complications from a cesarian section. Jimi Mosely, as representative of Mayfield's estate, brought a wrongful-death action based on the tort of
¶ 2. On August 23, 2011, Mayfield died at BMH-GT from a perforated gastric ulcer several days after delivering twins via cesarian section. On October 22, 2013, her estate representative filed suit against both her treating physician and BMH-GT following compliance with the notice requirements of Mississippi Code Annotated section 15-1-36(15) (Rev. 2012). Presuit notice was given on August 21, 2013, one day prior to the expiration of the two-year statute of limitations.
¶ 3. On November 26, 2013, BMH-GT moved to be dismissed from the action due to the complaint's failure to allege proximate causation as to BMH-GT. Following a hearing held in January 2014, this motion was granted on March 27, 2014. On May 6, 2014, the parties entered into an agreed scheduling order setting the deadline for joinder of parties and amendments to the pleadings for June 1, 2014, with a trial date of November 17, 2014. A final judgment dismissing BMH-GT without prejudice was entered on May 12, 2014. On September 3, 2014, Mosely moved to amend her complaint to add BMH-GT back in as a defendant. The court denied the motion, stating in its order that the motion "should be denied because of the delay in seeking the relief at this time, which would cause undue burden and expense for the defendant."
¶ 4. On November 4, 2014, Mosely filed a new, separate complaint naming as defendants BMH-GT and two individual nurses involved in Mayfield's care, Gilliam and Adams-Hall. Mosely then filed a series of
¶ 5. Noting that the only issue for it to decide was whether the dismissal should be with or without prejudice, the trial court dismissed Adams-Hall and Gilliam from Mosely II with prejudice due to the expiration of the statute of limitations. By a separate order, the trial court also dismissed BMH-GT from Mosely II with prejudice on the ground that expiration of the statute of limitations as to the employees extended to the employer where the sole complaint against the employer was on the basis of respondeat superior.
¶ 6. Mosely appeals the denial of the motion to amend the complaint in Mosely I, the denial of the various motions to consolidate, and the dismissal of Mosely II with prejudice.
¶ 7. A trial court's grant or denial of a motion to amend the complaint is reviewed for abuse of discretion, and motions to amend should be denied where there has been undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, or where the amendment would cause undue prejudice to the opposing party or be futile. Webb v. Braswell, 930 So.2d 387, 393 (¶ 9) (Miss. 2006); Moeller v. Am. Guar. and Liab. Ins., 812 So.2d 953, 962 (¶ 28) (Miss. 2002).
¶ 8. Trial courts are required by Mississippi Rule of Civil Procedure 15(a) to provide plaintiffs an opportunity to amend complaints that have been dismissed pursuant to Mississippi Rule of Civil Procedure 12(b)(6) "when justice so requires" and "upon conditions and within time as determined by the court."
¶ 9. Mosely was put on notice of the complaint's failure to plead proximate causation
¶ 10. Statute-of-limitations issues are questions of law reviewed de novo. Fletcher v. Lyles, 999 So.2d 1271, 1276 (¶ 20) (Miss. 2009).
¶ 11. The trial court correctly determined that Gilliam and Adams-Hall should be dismissed with prejudice from Mosely II due to the expiration of the two-year statute of limitations applying to torts sounding in medical negligence. Nurses Gilliam and Adams-Hall were not named as defendants in Mosely I and were not given presuit notice in either Mosely I or II. Therefore, the statute of limitations as to them expired on August 22, 2013, two years after Mayfield's death and months prior to the filing of Mosely II.
¶ 12. We also find that the trial court appropriately dismissed BMH-GT with prejudice when Mosely renamed BMH-GT as a defendant in Mosely II. As Mosely concedes, section 15-1-36(15) requires notice to be given prior to filing suit even if that defendant was properly served presuit notice in a previous action. Arceo v. Tolliver, 19 So.3d 67, 71 (¶¶ 12-13) (Miss. 2009). But while, "[o]rdinarily, dismissal without prejudice is appropriate where ... dismissal of a suit was based upon a plaintiff's failure to comply with statutory presuit notice provisions[,].... where a suit is dismissed for any reason and the statute of limitations has expired, dismissal with prejudice is warranted." Id. at 75 (¶ 42).
¶ 13. Specifically addressing the employee-employer relationship between a nurse and her employer in a wrongful-death action, the Mississippi Supreme Court held in Lowery v. Statewide Healthcare Serv., Inc., 585 So.2d 778, 780 (Miss. 1991), that "a suit barred by a statute of limitation against an agent will likewise bar the same claim against the principal whose liability is based solely upon the principal and agency relationship, and not some act or conduct of the principal separate and apart from the act or conduct of the agent." The statute of limitations had expired as to Gilliam and Adams-Hall at the time Mosely II was filed. Because the claim against BMH-GT was based solely on the theory of respondeat superior, the statute had also expired as to BMH-GT.
¶ 14. Mosely asserts that "the savings statute" — Miss. Code Ann. § 15-1-69 (Rev. 2012) — operates to make Mosely II timely filed. The statute does apply in medical-malpractice suits where a complaint was filed within the statute of limitations but the plaintiff failed to provide
¶ 15. As to BMH-GT — who in Mosely I was timely given presuit notice and timely sued — Mosely is unable to point to any authority that indicates that the savings statute would apply to a situation in which a motion to amend was denied due to undue delay. Rule 15(a) operated to grant Mosely additional time to cure the defect in her pleading as to causation, and she did not take advantage of that opportunity.
¶ 16. Mosely also argues that she should be able to join Gilliam and Adams — Hall to Mosely I via Mississippi Rule of Civil Procedure 9(h). This argument is without merit. Rule 9(h) provides for the substitution of parties via amendment to a complaint that named fictitious parties. Mosely did not name fictitious defendants in the Mosely I complaint or ever file a motion to amend Mosely I on Rule 9(h) grounds. She simply named Adams-Hall and Gilliam as defendants in a new, independent action more than two years after the statute of limitations had expired.
¶ 17. In Mosely I, the trial court did not abuse its discretion in denying the motion to amend as untimely. In Mosely II, the trial court did not err in finding the action barred with prejudice as to all defendants by the statute of limitations. The denial of the motions to consolidate were appropriate given the statute-of-limitations bar.
¶ 18.
LEE, C.J., GRIFFIS, P.J., ISHEE, CARLTON AND WESTBROOKS, JJ., CONCUR. IRVING, P.J., BARNES AND WILSON, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. FAIR, J., NOT PARTICIPATING.