Doll v. BSL, Inc.
| Docket Number: | 2009-CA-01068-SCT Linked Case(s): 2009-CA-01068-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 06-10-2010 Opinion Author: Randolph, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Personal injury - Timeliness of appeal - M.R.A.P. 4(a) & (d) - M.R.A.P. 2(a)(1) - Recusal of judge - M.R.A.P. 48B - Dismissal under M.R.C.P. 60(b) Judge(s) Concurring: Waller, C.J., Carlson and Graves, P.JJ., Dickinson, Lamar, Kitchens, Chandler and Pierce, JJ. Procedural History: Dismissal Nature of the Case: CIVIL - PERSONAL INJURY; Dismissal |
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| Trial Court: |
Date of Trial Judgment: 12-02-2008 Appealed from: Hancock County Circuit Court Judge: Jerry O. Terry, Sr. Disposition: In April 2004, David and Sandra Doll (“the Dolls”) filed suit against BSL, Inc. d/b/a Casino Magic Bay St. Louis (“BSL”) relating to injuries allegedly suffered by David Doll while on BSL’s property. On December 2, 2008, the Circuit Court of Hancock County, Mississippi, entered Final Judgment for BSL, dismissing the Dolls’ lawsuit with prejudice pursuant to Mississippi Rule of Civil Procedure 41(b). After denial of their Motion to Reconsider in February 2009, the Dolls filed a Motion for Recusal in March 2009, followed by a Motion for Relief from Final Judgment in June 2009. The trial court denied both their Motion for Relief from Final Judgment and subsequent Motion to Set Aside Order. Case Number: A2301-2004-00182 |
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| Party Name: | Attorney Name: | |||
| Appellant: | David Doll and Sandra Doll |
DAVID CLIFTON MORRISON |
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| Appellee: | BSL, Inc. d/b/a Casino Magic Bay St. Louis | DAVID W. STEWART, MATTHEW JASON SUMRALL |
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| Topic: | Personal injury - Timeliness of appeal - M.R.A.P. 4(a) & (d) - M.R.A.P. 2(a)(1) - Recusal of judge - M.R.A.P. 48B - Dismissal under M.R.C.P. 60(b) |
| Summary of the Facts: | David and Sandra Doll filed suit against BSL, Inc. d/b/a Casino Magic Bay St. Louis, relating to injuries allegedly suffered by David Doll while on BSL’s property. Four years later, the court dismissing the Dolls’ lawsuit with prejudice pursuant to M.R.C.P. 41(b). After denial of their Motion to Reconsider, the Dolls filed a Motion for Recusal followed by a Motion for Relief from Final Judgment. The court denied their motions, and the Dolls appeal. |
| Summary of Opinion Analysis: | Issue 1: Timeliness of appeal The Dolls’ lawsuit was dismissed with prejudice on December 2, 2008. On December 8, 2008, the Dolls filed their Motion to Reconsider. On February 23, 2009, the circuit court denied that motion. Pursuant to M.R.A.P. 4(d), the time for appeal commenced with the entry of that order. Therefore, to appeal that order, the Dolls were required under M.R.A.P. 4(a) to file notice of appeal within thirty days of February 23, 2009, i.e., on or before March 25, 2009. The Dolls filed no such notice of appeal. Instead, on March 2, 2009, the Dolls filed a Motion for Recusal. However, a motion for recusal is not among the motions listed in Rule 4(d) from which the time for appeal begins to run only upon disposition thereof. Accordingly, the dismissal with prejudice became final thirty days later, on March 25, 2009, and the Dolls’ appeal is dismissed as time barred under M.R.A.P. 2(a)(1). Issue 2: Recusal of judge The Dolls’ Motion for Recusal was filed on March 2, 2009, with the amended version filed on March 9, 2009. The judge did not rule on the motion. Under M.R.A.P. 48B, the Dolls had fourteen days, after the thirty days following the filing of the motion for recusal upon which the judge had not ruled, to seek review of the judge’s action by the Supreme Court. As the Dolls failed to timely seek review, this issue is also time-barred. Issue 3: Dismissal under M.R.C.P. 60(b) M.R.C.P. 60(b) specifies certain limited grounds upon which final judgments may be attacked, even after the normal procedures of motion for new trial and appeal are no longer available. Thus, this issue is not time-barred. Under the facts presented, Rule 60(b) relief is unwarranted. Rule 60(b) is not an escape hatch for litigants who have procedural opportunities afforded under other rules and who without cause failed to pursue those procedural remedies. The Dolls should have appealed the dismissal of their lawsuit on or before March 25, 2009, but failed to do so. Similarly, the Dolls should have sought review of the circuit court’s silence on their Motion for Recusal, but failed to timely do so. Thus, the relief sought by the Dolls is nothing more than an escape hatch after failing to pursue other available procedural remedies. |
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