Hasty v. Namihira
| Docket Number: | 2006-CA-00473-COA Linked Case(s): 2006-CA-00473-SCT ; 2006-CA-00473-COA ; 2006-CT-00473-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 01-22-2008 Opinion Author: KING, C.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Wrongful death - Dismissal of case - M.R.C.P. 41 - Relief from judgment - M.R.C.P. 60 Judge(s) Concurring: LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Concurs in Result Only: IRVING, J. Procedural History: Dismissal Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 08-31-2004 Appealed from: WARREN COUNTY CIRCUIT COURT Judge: Frank G. Vollor Disposition: CASE DISMISSED FOR FAILURE TO PROSECUTE. Case Number: 01,0044-CI |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | HARVEY DANIEL HASTY, MACK ARTHUR HASTY, LOUIS GENE HASTY, HUGH ALLEN HASTY, ROGER WAYNE HASTY, PLEZY LEON HASTY, BEVERLY LORRAINE HASTY, AND TIMOTHY WAYNE HASTY, INDIVIDUALLY AND
AS THE WRONGFUL DEATH BENEFICIARIES OF ARTHUR I. HASTY |
TIM WAYCASTER |
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| Appellee: | YOSHINOBU NAMIHIRA, M.D., AND THE BETTER LIVING CLINIC-ENDOSCOPY CENTER, P.A. | R.E. PARKER, JR., CLIFFORD C. WHITNEY, III |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Wrongful death - Dismissal of case - M.R.C.P. 41 - Relief from judgment - M.R.C.P. 60 |
| Summary of the Facts: | In 2001, the wrongful death beneficiaries of Arthur I. Hasty filed a wrongful death suit against Dr. Yoshinobu Namihira and his clinic, the Better Living Clinic - Endoscopy Center, P.A. In 2003, the trial court issued notice of a pending Rule 41 dismissal due to the lack of action on the case. Attorney Tim Wacaster responded to the Rule 41 notice of dismissal by sending a letter to the judge, which addressed the circumstances of the Hastys’ delay in proceeding with the case. He informed the trial court that he would file an entry of appearance as soon as the trial court allowed the previous attorney to withdraw from the case. The trial court did not enter an order of dismissal, and the case remained on the active docket. Approximately a year later, Dr. Namihira filed a motion to dismiss the case for failure to prosecute. The trial court dismissed the case without prejudice for failure to prosecute. The Hastys appeal. |
| Summary of Opinion Analysis: | Issue 1: Dismissal of case The Hastys argue that the court erred by dismissing the case for failure to prosecute and that the prejudice they received greatly outweighed any prejudice to Dr. Namihira. The trial court granted the dismissal without prejudice, pursuant to M.R.C.P. 41(b) and (d), as well as section 11-53-25. Rule 41(b) provides for dismissal of a case upon motion of the defendant for failure to prosecute. Unless stated in the order, a dismissal under Rule 41(b) is with prejudice. Rule 41(d) provides for dismissal of a case by the trial court, without a motion to dismiss by the defendant, when there has been no action of record during the proceeding twelve months. A dismissal under Rule 41(d) is without prejudice. Either method of dismissal could result in a dismissal without prejudice, as is the case here. Factors to consider for dismissals under Rule 41(b) are whether the conduct of the plaintiff can be considered contumacious or dilatory; whether lesser sanctions could be applied; and other aggravating factors. Nothing suggests that the Hastys’ conduct was contumacious, but their conduct may certainly be said to be dilatory. In their letter, the Hastys claimed that the attorney, who was handling the matter, had left the law firm and had just withdrawn from the case and that most of the depositions had been completed. The Hastys also claimed that after they had the opportunity to depose one additional physician, the case would be ready for trial. One year later, when Dr. Namihira’s motion to dismiss was filed, essentially nothing had occurred in the case. This can clearly be seen as dilatory conduct. The first application of lesser sanctions was the clerk’s notice of dismissal. The second lesser sanction the trial court applied was dismissal without prejudice, instead of the much harsher penalty of dismissal with prejudice. Clearly the trial court’s attempts to impose lesser sanctions failed to produce the desired results. With regard to aggravating factors, there is no indication that the delay in this case was the fault of the Hastys rather than that of their counsel. Nor is there any suggestion or indication that the delay was an intentional attempt to abuse the judicial process. With regard to prejudice, it would not seem inappropriate to weigh, even if slightly, the prejudice factor in favor of Dr. Namihira since he was not responsible for the delay. Thus, the trial court did not abuse its discretion by dismissing the case without prejudice. Issue 2: Relief from judgment The Hastys argue that they were misinformed as to the status of their case and therefore, their M.R.C.P. 60 motion should not have been denied. They claim that they contacted the court administrator to determine the proper procedure to respond to the motion to dismiss, and the court administrator informed them, erroneously, that the action had been dismissed pursuant to a Rule 41 notice of dismissal in August 2003, and the case was no longer on the court’s docket. The burden rested with the Hastys to determine for themselves the status of the case, rather than depending upon the representations of someone else. The Hastys acknowledge that their entire effort to check the status of the case consisted of talking with the clerk, as opposed to a personal inspection of the court docket or file. Under these circumstances, the trial court did not abuse its discretion by denying the Hastys’ Rule 60 motion for relief from the judgment of dismissal. |
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