Kay Thornhill v. Christopher W. Ingram , 2015 Miss. LEXIS 494 ( 2015 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2014-IA-00959-SCT
KAY THORNHILL, C.F.N.P.
v.
CHRISTOPHER W. INGRAM, INDIVIDUALLY,
AND AS REPRESENTATIVE OF THE
WRONGFUL DEATH BENEFICIARIES OF
JENNIFER LYNN INGRAM, DECEASED
DATE OF JUDGMENT: 06/30/2014
TRIAL JUDGE: HON. ROBERT B. HELFRICH
TRIAL COURT ATTORNEYS: DORRANCE AULTMAN
S. BETH WINDHAM
NORMAN W. PAULI, JR.
JAMES A. COOK, JR.
COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: DORRANCE AULTMAN
S. BETH WINDHAM
ATTORNEYS FOR APPELLEES: NORMAN W. PAULI, JR.
JAMES A. COOK, JR.
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: REVERSED AND RENDERED - 10/01/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE DICKINSON, P.J., PIERCE AND COLEMAN, JJ.
DICKINSON, PRESIDING JUSTICE, FOR THE COURT:
¶1. A wrongful-death beneficiary failed to prosecute this medical-malpractice case for
four years, so, on the defendant’s motion, the circuit judge dismissed the complaint. The
plaintiff refiled, and the defendant twice moved to dismiss, arguing that the statute of
limitations had lapsed. Both motions were denied, and we granted interlocutory appeal.
Because the statute of limitations is not tolled when cases are dismissed for lack of
prosecution, the second complaint was untimely. Accordingly, we reverse and render.
FACTS AND PROCEDURAL HISTORY
¶2. In 2002, Christopher Ingram sued Forrest County General Hospital, Dr. Edgar
Grissom, and Kay Thornhill on behalf of Jennifer Ingram’s wrongful-death beneficiaries.1
Ingram claimed that their failure to accurately diagnosis Jennifer and provide her necessary
medical treatment caused her 2001 death. But, eight years later, the defendants moved the
circuit judge to dismiss Ingram’s case for failure to prosecute. The circuit judge dismissed
the case “without prejudice.”
¶3. Ingram refiled December 29, 2010. Thornhill moved for summary judgment and
claimed that the statute of limitations had run. She argued that, under this Court’s decision
in Knight v. Knight, the statute had not been tolled during the first proceeding.2 The circuit
judge denied the motion, finding that, while the Knight holding addressed dismissals on the
clerk’s motion under Mississippi Rule of Civil Procedure 41(d), it did not address dismissals
on a party’s motion under Rule 41(b).
¶4. A year and a half later, Thornhill moved to dismiss or, in the alternative, for summary
judgment, reasserting her statute-of-limitations argument. The renewed motion directed the
circuit judge to this Court’s opinion in Entergy Mississippi, Inc. v. Richardson, which had
1
All claims against Forrest County General Hospital and Dr. Edger Grissom have
been dismissed with prejudice and only Thornhill remains as a defendant.
2
Knight v. Knight, 85 So. 3d 832 (Miss. 2012).
2
handed down after the judge denied the first motion.3 The circuit judge treated the motion
as one for relief from a judgment under Mississippi Rule of Civil Procedure 60(b) and found
no grounds for relief.
¶5. Thornhill then petitioned this Court for interlocutory appeal, which we granted. She
now argues that the circuit judge erred by treating the motion as one under Rule 60(b) and
that the statute of limitations barred Ingram’s second suit. We agree.
ANALYSIS
I. The circuit judge erred by treating Thornhill’s second motion as
a motion for relief from a judgment under Rule 60(b).
¶6. Thornhill styled her second dispositive motion as a “Motion to Dismiss or in the
Alternative for Summary Judgment.” The motion specifically requested relief under
Mississippi Rule of Civil Procedure 12 or Mississippi Rule of Civil Procedure 56. The
motion made no reference to Mississippi Rule of Civil Procedure 60, and the motion never
requested relief from the circuit judge’s prior order.
¶7. But because he previously had denied a similar motion, the circuit judge treated the
second motion as one for relief from a judgment under Mississippi Rule Civil Procedure
60(b). Thornhill now argues that this was error, and that the motion should have been
treated as one to dismiss or for summary judgment. We agree.
¶8. Rule 60(b) states that “[o]n motion and upon such terms as are just, the court may
relieve a party or his legal representative from a final judgment, order, or proceeding . . . .”4
3
Entergy Miss., Inc. v. Richardson, 134 So. 3d 287 (Miss. 2014).
4
Miss. R. Civ. P. 60(b) (emphasis added).
3
This Court has said that motions under Rule 60 “proceed on the assumption that the trial
court has entered a valid and enforceable judgment which has become final.”5 That is, a
Rule 60 motion seeks relief from a final judgment.6
¶9. In Holland v. Peoples Bank & Trust Company, a circuit judge denied the
defendant’s motion for summary judgment.7 After that judge recused and this Court
appointed a special judge, the defendants asked the new judge to reconsider the order
denying summary judgment.8 The new judge then granted summary judgment.9 The
plaintiff appealed and argued that the second judge could not reconsider the motion for
summary judgment because no ground for relief existed under Rule 60(b).10
¶10. We explained that “‘[a]n order denying summary judgment is neither final nor
binding upon the court or successor courts.’”11 On that basis, we concluded that the
plaintiff’s “reliance on Mississippi Rule of Civil Procedure 60(b)(6) is misplaced in that the
5
Bruce v. Bruce, 587 So. 2d 898, 904 (Miss. 1991).
6
Miss. R. Civ. P. 60(b) (“[T]he court may relieve a party or his legal representative
from a final judgment, order, or proceeding . . . .”) (emphasis added).
7
Holland v. Peoples Bank & Trust Co., 3 So. 3d 94, 97 (Miss. 2008).
8
Id. at 97–98.
9
Id. at 98.
10
Id. at 103–04.
11
Id. at 104 (quoting Mauck v. Columbus Hotel Co., 741 So. 2d 259, 268 (Miss.
1999)).
4
rule applies only where the judgment or order is final. In accordance with Mauck, an order
denying a motion for summary judgment is not a final judgment.”12
¶11. So a circuit judge’s decision to deny summary judgment cannot be reviewed through
Rule 60(b) because the denial does not constitute a final judgment. Accordingly, we find
that the circuit judge erred by treating Thornhill’s second dispositive motion as one under
Rule 60(b). And the only authority Ingram cites to the contrary is this Court’s decision in
Richardson, which dealt with a Rule 60(b) motion for relief from an order dismissing the
plaintiff’s case for failure to prosecute, not an order denying summary judgment.13
II. The circuit judge erred by denying Thornhill’s motion to dismiss,
or for summary judgment.
¶12. Thornhill moved to dismiss Ingram’s claims, arguing that the statute of limitations
ran before Ingram filed his second complaint. The parties agree that Ingram’s medical-
malpractice claims are subject to the limitations period in Mississippi Code Section 15-1-36,
which states:
no claim in tort may be brought against a licensed physician, osteopath,
dentist, hospital, institution for the aged or infirm, nurse, pharmacist,
podiatrist, optometrist or chiropractor for injuries or wrongful death arising
out of the course of medical, surgical or other professional services unless it
is filed within two (2) years from the date the alleged act, omission or neglect
shall or with reasonable diligence might have been first known or discovered,
and, except as described in paragraphs (a) and (b) of this subsection, in no
event more than seven (7) years after the alleged act, omission or neglect
occurred . . . .14
12
Holland, 3 So. 3d at 104.
13
Richardson, 134 So. 3d at 289.
14
Miss. Code Ann. § 15-1-36 (Rev. 2012).
5
The parties also agree that, unless the statute of limitations was tolled, it lapsed, because the
second complaint was filed in 2010—nine years after the alleged negligent conduct
occurred.
¶13. Thornhill argues that in Knight, we held that any time a case is dismissed for lack of
prosecution, the statute of limitations is not tolled during the first proceeding. Ingram argues
that Knight’s holding pertained only to dismissals for failure to prosecute on the clerk’s
motion under Mississippi Rule of Civil Procedure 41(d), and not those initiated by a party
under Rule 41(b). We find that the exception to tolling articulated in Knight applies to all
cases dismissed for lack of prosecution.
¶14. The “‘[a]pplication of a statute of limitation is a question of law to which a de novo
standard also applies.’”15 The general rule in Mississippi is “‘that, unless process is not
timely served, the statute of limitations is tolled upon the filing of the complaint, and does
not begin to run again until litigation has ended.’”16 Before Knight, this rule applied even
when a case was dismissed for failure to prosecute.17
¶15. In Knight, a circuit judge dismissed claims for assault and battery without prejudice
after nearly ten years of inactivity.18 The dismissal was initiated on motion of the circuit
15
Knight, 85 So. 3d at 835 (quoting Sarris v. Smith, 782 So. 2d 721, 723 (Miss.
2001)).
16
Sweet Valley Missionary Baptist Church v. Alfa Ins. Corp., 124 So. 3d 643, 645
(Miss. 2013) (quoting Hill v. Ramsey, 3 So. 3d 120, 123 (Miss. 2009)).
17
Hill, 3 So. 3d at 123.
18
Id. at 833.
6
clerk.19 The plaintiffs refiled their complaints, but the defendant moved to dismiss, arguing
that the statute of limitations had lapsed.20 The circuit judge agreed.21
¶16. The plaintiffs appealed, and this Court considered whether “a complaint should not
toll the statute of limitations when a complaint is dismissed without prejudice for failure to
prosecute.”22 We recognized then that, previously,
[t]his Court and the Court of Appeals ha[d] . . . both recognized that filing a
complaint tolls the statute of limitations and permits a plaintiff to refile his or
her case if this case is dismissed without prejudice and time remains on the
statute of limitations.23
¶17. But we then adopted a new rule, stating that
when an action is dismissed without prejudice for failure to prosecute, the
statute of limitations does not toll, and the parties are left in the same position
as if they had never filed the action.24
¶18. We provided several reasons for our holding, including that “[a]llowing the statute
to toll in such a situation presents an opportunity for abuse of process, potentially allowing
cases to be dismissed and refiled for a period of years or even decades.”25
19
Id.20
Id.21
Id.22
Id. at 835.
23
Id. at 836 (citing Jackpot Mississippi Riverboat, Inc. v. Smith, 874 So. 2d 959,
961 (Miss. 2004); Marshall v. Burger King, 2 So. 3d 702 (Miss. Ct. App. 2008)).
24
Knight, 85 So. 3d at 837.
25
Id.
7
¶19. We also made it clear that plaintiffs who fail to prosecute their cases have only
themselves to blame, noting cases from other jurisdictions which adopted a similar rule for
that reason, including the New Mexico Supreme Court, which said:
A party who has slept on his rights should not be permitted to harass the
opposing party with a pending action for an unreasonable time. . . . the
courts should not distinguish between a plaintiff who takes no action before
the limitations period expires and a plaintiff who files a complaint before the
period expires but who thereafter takes no action . . . .26
¶20. In Knight, however, we did place some limitation on our holding, stating:
This holding, however, does not mean that all cases dismissed without
prejudice after the statute of limitations has expired cannot be refiled. Some
will be revived by the savings statute, equitable tolling, or otherwise. Our
narrow holding here is merely that dismissal without prejudice for want of
prosecution does not toll the statute of limitations.27
Given the language used in Knight’s holding, the reasoning that led to its holding, and the
authority Knight cited, Ingram asks this Court to draw an untenable distinction.
¶21. First, Knight twice stated its holding without any language limiting it to dismissals
under Rule 41(d).
[W]hen an action is dismissed without prejudice for failure to prosecute, the
statute of limitations does not toll, and the parties are left in the same position
as if they had never filed the action28. . . .
and
26
Id. (quoting King v. Lujan, 98 N.M. 179, 646 P.2d 1243, 1245 (1982)) (emphasis
added).
27
Knight, 85 So. 3d at 838.
28
Knight, 85 So. 3d at 837.
8
Our narrow holding here is merely that dismissal without prejudice for want
of prosecution does not toll the statute of limitations.29
Both iterations tie the holding to dismissals for failure to prosecute generally, which can
occur under both Rule 41(b) and Rule 41(d).
¶22. Second, the reasoning that led us to adopt our holding in Knight applies equally,
regardless of whether the clerk or a party moves to dismiss for failure to prosecute. We
explicitly adopted the reasoning of the New Mexico Supreme Court which stated that “[a]
party who has slept on his rights should not be permitted to harass the opposing party with
a pending action for an unreasonable time” and that “the courts should not distinguish
between a plaintiff who takes no action before the limitations period expires and a plaintiff
who files a complaint before the period expires but who thereafter takes no action.”30
¶23. Irrespective of who moves to dismiss, the rationale that one who files a complaint but
takes no action should be treated exactly the same as one who never filed the complaint
applies with equal force. In both cases, the plaintiff has sat on his rights and his dilatory
action should not be saved by the mere filing of a complaint without actual prosecution.
¶24. Finally, to say the Knight holding pertained to dismissals on the clerk’s motion alone
ignores the authority Knight cited. Knight extensively adopted reasoning from the New
Mexico Supreme Court’s decisions in King v. Lujan, which dealt with a judge’s sua sponte
dismissal for failure to prosecute under New Mexico’s Rule of Civil Procedure 41(b).31
29
Id. at 838.
30
Id. at 837 (quoting King, 646 P.2d at 1245).
31
King, 646 P.2d at 1244.
9
¶25. Further, in Richardson, a circuit judge, on the court’s own motion, dismissed a tort
action for the plaintiff’s failure to prosecute.32 The plaintiff moved to reinstate the case,
arguing, among other things, that dismissal may implicate the statute of limitations.33 The
judge reinstated the case and the defendant appealed, arguing that no valid ground for relief
existed under Rule 60(b) and that the Rule 60(b) motion was time-barred under Knight.34
¶26. We first concluded that the motion was not time-barred because, unlike in Knight,
the Rule 60 motion did not constitute the filing of a new complaint.35 But, in describing
Knight’s holding, we stated that “this Court held that the statute of limitations is not tolled
when a cause of action is dismissed without prejudice for lack of prosecution.”36 Our
characterization of Knight’s holding contained no limitation based on who moved to
dismiss, and we were not considering a dismissal on the clerk’s motion.
¶27. We then considered whether grounds existed under Rule 60 to set aside the dismissal.
With regard to the plaintiff’s argument that the motion should be granted because, after
dismissal, the statute of limitations may preclude it from filing a second complaint, this
Court stated “while the potential running of the statute of limitations on the underlying claim
demonstrates prejudice to the moving party, that in itself is insufficient grounds for granting
32
Richardson, 134 So. 3d at 289.
33
Id.
34
Id.
35
Id. at 290.
36
Id. (citing Knight, 85 So. 3d at 838).
10
reinstatement.”37 Our statement acknowledges that the statute of limitations may have
precluded refiling under Knight’s holding, despite the fact that this case dealt with a sua
sponte dismissal by the circuit judge, not one initiated by the clerk under Rule 41(d).
¶28. So, under our language and reasoning in Knight, and our characterization of that
holding in Richardson, we must conclude that a statute of limitations is not tolled during a
proceeding that is dismissed ultimately for failure to prosecute, regardless of whether the
dismissal is initiated by the clerk, the judge, or a party. Said differently, while the general
rule in this State remains that the timely filing of a complaint and service of process tolls the
statute of limitations, we have carved out an exception to that rule for all cases dismissed for
failure to prosecute. And because the statute was not tolled in this case, the statute of
limitations barred Ingram’s second complaint, and the circuit judge erred by denying
Thornhill’s motion to dismiss.
¶29. Ingram also argues, however, that this Court cannot adopt a rule that a case dismissed
for lack of prosecution on a party’s motion does not toll the statute of limitations, because
to do so would deprive the plaintiff of property without due process of law. But Ingram fails
to cite any authority to support the view that failing to toll a statute of limitations can violate
due process. We consider arguments without citation to authority abandoned.38
¶30. Further, this Court has adopted the view that “[t]o prevail on a claim for denial of
procedural due process, the plaintiffs must show not only that they were deprived of a
37
Entergy Miss., Inc., 134 So. 3d at 292.
38
Jones v. Howell, 827 So. 2d 691, 702 (Miss. 2002) (citing Thibodeaux v. State,
652 So. 2d 153, 155 (Miss. 1995)).
11
protected property interest, but also that they were denied the process due them.”39 And
“[t]he United States Supreme Court has explained that a state may erect reasonable
procedural requirements for triggering the right to adjudication, such as statutes of
limitations, and a state accords due process when it terminates a claim for failure to comply
with a reasonable procedural rule.”40 Here, the first complaint was dismissed because the
plaintiff failed to act in a reasonable time after filing the complaint, and due process does
not preclude this Court from terminating the right to file a second complaint.
¶31. Ingram also argues that a rule that the statute is not tolled when a case is dismissed
under Rule 41(b) would undermine the judge’s authority under that rule to determine
whether the dismissal should be one on the merits. The rule states “[u]nless the court in its
order for dismissal otherwise specifies, a dismissal under this subdivision and any other
dismissal not provided for in this rule . . . operates as an adjudication upon the merits.”41
But, once again, this reasoning does not distinguish this case from Knight because Rule
41(d), which was at issue in Knight, states “the court shall dismiss each such case without
prejudice.”42
¶32. Said differently, Ingram is correct that in some cases, like this one, when a judge
exercises discretion under Rule 41(b) to dismiss without prejudice, a second action will
39
Smith v. Braden, 765 So. 2d 546, 558 (Miss. 2000) (citing Logan v. Zimmerman
Brush Co., 455 U.S. 422, 428, 102 S. Ct. 1148, 1154, 71 L. Ed. 2d 265 (1982)).
40
Smith, 765 So. 2d at 558 (citing Logan, 455 U.S. at 437).
41
Miss. R. Civ. P. 41(b).
42
Miss. R. Civ. P. 41(d).
12
nevertheless be barred by the statute of limitations under the Knight rule. But Knight
contemplated a similar scenario under Rule 41(d) where the dismissal was without prejudice
by operation of the rule, but a subsequent suit still was barred.
¶33. Finally, Ingram argues that Thornhill should be estopped from arguing that the statute
of limitations ran because she agreed that the first suit should be dismissed without prejudice
during an in-chambers conference. But the record does not include a transcript or other
information about the in-chambers conference. We take this opportunity again to warn the
bench and bar that conversations that take place in the judge’s chambers are not part of the
record and should not be cited to this Court as evidence, unless those conversations are
recorded by a court reporter.
¶34. Further, as discussed above, Knight assumed that the order of dismissal was without
prejudice when it found that the statute of limitations barred a second suit. So, under
Knight’s reasoning, whether a dismissal is “without prejudice” and whether the statute of
limitations has run are distinct inquiries. Therefore, even if Thornhill had agreed to a
dismissal without prejudice, that agreement—standing alone—did not amount to a
concession that the statute of limitations had not run.
CONCLUSION
¶35. In Knight, we held that the statute of limitations is not tolled when an action is
dismissed for failure to prosecute. That holding was not limited to dismissals resulting from
the clerk’s motion. So the circuit judge erred by denying Thornhill’s motion to dismiss and
by treating the motion as one filed under Rule 60(b). Ingram’s second complaint is time-
13
barred and should have been dismissed. We therefore reverse the judgment of the Circuit
Court of Forrest County and render judgment for Thornhill, finally dismissing the complaint
and this action with prejudice as barred by the applicable statute of limitations.
¶36. REVERSED AND RENDERED.
WALLER, C.J., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND
COLEMAN, JJ., CONCUR. RANDOLPH, P.J., NOT PARTICIPATING.
14