Miss. Baptist Med. Ctr., Inc., et al. v. Powell


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Docket Number: 2011-CA-00171-COA
Linked Case(s): 2011-CA-00171-COA ; 2011-CA-00171-COA
Court of Appeals: Opinion Date: 11-27-2012
Opinion Author: Roberts, J.
Holding: The motions for rehearing are denied.
Additional Case Information: Topic: Medical malpractice - Timeliness of Rule 60(b) motion - M.R.C.P. 60(b)(6) - M.R.C.P. 60(b)(2)
Non Participating Judge(s): Barnes, J.
Dissenting Author : Irving, P.J., Carlton and Russell, JJ., would grant.
Nature of the Case: Motion for Rehearing
Trial Court: Date of Trial Judgment: 12-15-2010
Appealed from: Hinds County Circuit Court
Judge: Malcolm Harrison
Case Number: 251-07-1195CIV
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Mississippi Baptist Medical Center, Inc., Jackson Anesthesia Associates, Garland K. Milner, M.D.and Derek Marshall, M.D.



 
  • Appellant #1 Brief
  • Appellant #2 Brief
  • Appellant #1 Reply Brief
    		•
    Appellee: Maria L. Powell on Behalf of the Estate of Jervia Powell  
    Synopsis provided by:

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    Topic: Medical malpractice - Timeliness of Rule 60(b) motion - M.R.C.P. 60(b)(6) - M.R.C.P. 60(b)(2)
    Summary of the Facts: Maria Powell filed her first complaint “on behalf of the estate of [her son,] Jervia Powell” in November 2007. Approximately two months later, Powell amended her complaint and named additional defendants. However, Powell never served process on any of the defendants. In June 2008, Illinois attorney Jesse V. Harris filed a request for admission pro hac vice so that he could represent Powell. The circuit court never granted Harris’s request for pro hac vice admission. Powell did not take any further action in her first lawsuit for the next eighteen months. Consequently, the circuit court sent notices that it would conduct a mandatory civil docket call on February 18, 2010. The circuit court’s notice warned that failure to appear would result in dismissal. Despite the circuit court’s warning, neither Powell nor her attorneys appeared at the mandatory docket call. Approximately one month later, the circuit court dismissed Powell’s complaint. Powell never moved to alter or amend the circuit court’s judgment nor did she appeal the circuit court’s judgment. Instead, Powell filed a practically identical complaint in a separate action approximately two months after the circuit court dismissed her first complaint. Dr. Garland Milner, Dr. Derek Marshall, Jackson Anesthesia Associates, and Mississippi Baptist Medical Center, Inc., the defendants, moved for summary judgment. Powell filed a motion to clarify under M.R.C.P. 60(b). The judge entered an order granting Powell’s Rule 60(b) motion. The defendants appeal.
    Summary of Opinion Analysis: The defendants argue that the circuit court should not have granted Powell’s Rule 60(b) motion because it was untimely. In her motion, Powell did not argue that any specific portion of Rule 60(b) entitled her to relief. Similarly, the circuit court did not specify whether it granted Powell relief under any particular provision of Rule 60(b). Powell argued that the circuit court should have dismissed her first lawsuit without prejudice instead of dismissing it with prejudice. In other words, Powell argued that the circuit court mistakenly dismissed her first lawsuit with prejudice. Accordingly, Rule 60(b)(2) was the most appropriate vehicle for Powell’s motion. To the extent that Powell’s motion was based on Rule 60(b)(2), she was obligated to file her motion within six months after the circuit court entered its judgment. However, Powell filed her Rule 60(b) motion more than seven months after the circuit court entered its judgment dismissing her first lawsuit. Therefore, Powell must rely on Rule 60(b)(6). Relief under Rule 60(b)(6) cannot be based upon a reason which may be found under the first five subsections of the rule. Since Rule 60(b)(2) applies to circumstances involving mistakes, Powell is ineligible to obtain relief under Rule 60(b)(6). Even if Powell could seek relief under Rule 60(b)(6), her motion was still untimely. Powell did not file a motion to alter or amend the judgment under M.R.C.P. 59. Likewise, Powell did not appeal the circuit court’s judgment. Rule 60(b) is not an escape hatch for litigants who had procedural opportunities afforded under other rules and who without cause failed to pursue those procedural remedies. Thus, the circuit court abused its discretion when it granted Powell’s unspecified Rule 60(b) motion.


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