Holder v. Orange Grove Med. Specialties, P.A.
| Docket Number: | 2008-CA-01442-COA Linked Case(s): 2008-CA-01442-COA ; 2008-CT-01442-SCT ; 2008-CT-01442-SCT ; 2008-CT-01442-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 01-05-2010 Opinion Author: Myers, P.J. Holding: Reversed and remanded |
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| Additional Case Information: |
Topic: Medical negligence - Dismissal for want of prosecution - M.R.C.P. 41(b) - M.R.C.P. 33 - URCCC 4.03 - Order compelling discovery - M.R.C.P. 37(d) - Costs of appeal - M.R.A.P. 36 Judge(s) Concurring: King, C.J., Lee, P.J., Irving, Griffis, Barnes, Roberts and Maxwell, JJ. Non Participating Judge(s): Ishee, J. Concurs in Result Only: Carlton, J. Procedural History: Dismissal Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 07-29-2008 Appealed from: Harrison County Circuit Court Judge: JERRY O. TERRY, SR. Disposition: CASE DISMISSED FOR FAILURE TO PROSECUTE Case Number: A-2401-06-456 |
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| Note: | This opinion was later reversed by the Supreme Court on 12/9/2010. See the SCT opinion at: http://www.mssc.state.ms.us/Images/Opinions/CO65336.pdf | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | MARGUERITE B. HOLDER AND HERBERT
HOLDER |
L. CHRISTOPHER BREARD |
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| Appellee: | ORANGE GROVE MEDICAL SPECIALTIES, P.A., AND BOYD BENEFIELD, M.D. | STEPHEN GILES PERESICH, BRIAN DOUGLAS MAYO | ||
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| Topic: | Medical negligence - Dismissal for want of prosecution - M.R.C.P. 41(b) - M.R.C.P. 33 - URCCC 4.03 - Order compelling discovery - M.R.C.P. 37(d) - Costs of appeal - M.R.A.P. 36 |
| Summary of the Facts: | In 2006, Marguerite Holder and her husband, Herbert Holder, filed a medical-negligence suit against Orange Grove Medical Specialities, P.A., Boyd Benefield, M.D., and John Does One through Five. In 2008, the trial court dismissed the suit with prejudice as to each defendant for want of prosecution. The plaintiffs appeal. |
| Summary of Opinion Analysis: | M.R.C.P. 41(b) provides for the dismissal of a case upon the defendant’s motion for dismissal for want of prosecution. The record must clearly shows either delay or contumacious conduct by the plaintiff, and lesser sanctions would not serve the best interests of justice. The type of aggravating factors supportive of a dismissal with prejudice are delay caused by the plaintiff personally, delay causing prejudice to the defendant, and delay resulting from intentional conduct. Pursuant to M.R.C.P. 33, the plaintiffs were required to serve their answers, and any objections thereto, within thirty days of having received the defendants’ interrogatories. According to the record, the plaintiffs did not submit their answers to the propounded interrogatories until 435 days past the thirty-day deadline. The record reflects no written motions by the plaintiffs requesting additional discovery time or setting forth good cause therefor, until sometime in 2007. The record further shows that the plaintiffs failed to reply to the defendants’ motion to dismiss within the requisite ten-day period provided by URCCC 4.03. Thus, the record substantially supports the trial court’s finding of dilatory conduct on the part of the plaintiffs. The plaintiffs’ argue that the defendants should have been required to seek an order compelling discovery. However, because this case involves a total failure on the part of the plaintiffs to respond to any of the defendants’ propounded interrogatories, M.R.C.P. 37(d) is inapplicable. As the record shows, both parties presented arguments to the trial court with regard to lesser sanctions. Thus, lesser sanctions were considered by the trial judge in his ruling. Nevertheless, the facts in this matter do not support the trial court’s decision to dismiss this case with prejudice. Apart from the delay itself, the only evidence presented by the defendants in support of their charge of prejudice was the fact that the plaintiffs had failed to identify the alleged nurse in a timely manner. Because discovery was not completed in this case, granted due to no fault of the defendants, there is scant evidence contained in the record which sufficiently supports a judicial finding of actual prejudice. If the defendants were prejudiced simply because they were without the identity of the alleged nurse, the trial court had authority to remedy such prejudice by striking this portion of the pleadings, rather than dismissing the plaintiffs’ entire case with prejudice. The plaintiffs’ failure to timely engage in discovery appears to be attributable solely to the unintentional yet negligent conduct of their counsel. When this fact is taken into consideration together with the fact that there is no clear record of actual prejudice caused to the defendants, or even that of presumptive prejudice, the trial court erred in its decision to dismiss the plaintiffs’ case with prejudice. Upon remand the trial court may impose such reasonable sanctions, short of dismissal with prejudice, on the plaintiffs or their attorney as the court may find appropriate. Pursuant to M.R.A.P. 36, it is proper that the appellants should bear the costs of this appeal. |
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