Blake v. Estate of Clein
| Docket Number: | 2008-IA-01043-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 06-24-2010 Opinion Author: Chandler, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Medical malpractice - Appeal costs - Section 11-3-43 - M.R.A.P. 36(d) - Proceeding in forma pauperis - M.R.C.P. 3(a) & (c) - M.R.A.P. 6 - M.R.A.P. 1 - False sworn testimony - Section 11-53-17 - Section 11-53-19 Judge(s) Concurring: Waller, C.J., Carlson and Graves, P.JJ., Dickinson, Randolph, Lamar, Kitchens and Pierce, JJ. Procedural History: Dismissal; Motion to proceed in forma pauperis. Nature of the Case: CIVIL - MEDICAL MALPRACTICE |
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| Trial Court: |
Date of Trial Judgment: 05-28-2008 Appealed from: Hinds County Circuit Court Judge: William F. Coleman Disposition: Alexander Clein received a $3.5 million verdict in a medical-malpractice lawsuit against Dr. Kendall Blake and Jackson Bone and Joint Clinic (Dr. Blake) after a jury trial in the Circuit Court of Hinds County, First Judicial District. Dr. Blake appealed and, in Blake v. Clein, 903 So. 2d 710, 715 (Miss. 2005) (Blake I), this Court found that cumulative error had occurred and reversed and remanded the case for a new trial, taxing the costs of appeal to Clein. Id. at 732. On remand, Dr. Blake moved the trial court to assess the costs of appeal and to bar Clein’s further prosecution of the action until the appeal costs were paid. In response, Clein moved to proceed in forma pauperis (IFP). Subsequently, Dr. Blake moved to dismiss based on Clein’s failure to pay appeal costs within a two-year deadline imposed by Mississippi Code Section 11-3-43. See Miss. Code Ann. § 11-3-43 (Rev. 2002). The trial court granted the motion to dismiss, but, on reconsideration, it denied the motion to dismiss and granted Clein’s motion to proceed IFP. Case Number: 251-97-1003-CIV |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Kendall Blake, M.D. and Jackson Bone & Joint Clinic, L.L.P. |
STUART ROBINSON, JR., RICHARD T. CONRAD, III, LEO JOSEPH CARMODY, JR. |
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| Appellee: | Estate of David Alexander Clein, By and Through its Administratrix, Deborah Clein | LANCE L. STEVENS, RODERICK D. WARD, III | ||
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| Topic: | Medical malpractice - Appeal costs - Section 11-3-43 - M.R.A.P. 36(d) - Proceeding in forma pauperis - M.R.C.P. 3(a) & (c) - M.R.A.P. 6 - M.R.A.P. 1 - False sworn testimony - Section 11-53-17 - Section 11-53-19 |
| Summary of the Facts: | Alexander Clein received a $3.5 million verdict in a medical-malpractice lawsuit against Dr. Kendall Blake and Jackson Bone and Joint Clinic after a jury trial. Dr. Blake appealed and, in Blake v. Clein, 903 So. 2d 710, 715 (Miss. 2005), the Court found that cumulative error had occurred and reversed and remanded the case for a new trial, taxing the costs of appeal to Clein. On remand, Dr. Blake moved the trial court to assess the costs of appeal and to bar Clein’s further prosecution of the action until the appeal costs were paid. In response, Clein moved to proceed in forma pauperis. Subsequently, Dr. Blake moved to dismiss based on Clein’s failure to pay appeal costs within a two-year deadline imposed by section 11-3-43. The trial court granted the motion to dismiss, but, on reconsideration, it denied the motion to dismiss and granted Clein’s motion to proceed IFP. The Supreme Court granted Dr. Blake’s petition for an interlocutory appeal. |
| Summary of Opinion Analysis: | Issue 1: Appeal costs Dr. Blake argues that section 11-3-43 requires the dismissal of this action with prejudice. He asks that the case be remanded to the trial court with instructions to enter a judgment against the Estate for the total appeal costs, plus collection fees and interest. M.R.A.P. 36 governs appeal costs. The Estate has never disputed its liability to pay the appeal costs but moved the trial court to allow the case to proceed to trial without prepayment of appeal costs on the ground of indigency. The inability of the losing party to pay should be considered. Here, the trial court already has determined that the appeal costs include the cost of the supercedeas bond. However, the trial court also has determined that, due to the Estate’s indigency, the trial should proceed without prepayment of the appeal costs. This decision was within the trial court’s discretion to afford relief in matters involving costs under Rule 36(d). On remand, the court should enter a judgment taxing the appeal costs previously assessed against Clein to the Estate. Issue 2: Proceeding in forma pauperis Dr. Blake argues that a litigant wishing to proceed IFP must do so at the commencement of the civil action, and may not assert IFP status during proceedings ordered by the appellate court on remand. M.R.C.P. 3(a) provides that a civil action is commenced by filing a complaint with the court. The purpose of Rule 3(a) is to establish a precise date for fixing the commencement of a civil action. Dr. Blake argues that, given that Rule 3 addresses the commencement of the action, it follows that pauper status must be present at the outset of the case. The language of Rule 3 does not limit a litigant’s ability to assert IFP status to the “commencement of the action” such that a litigant could not assert IFP status during proceedings on remand to the trial court. In fact, Rule 3 imposes no time limit for asserting IFP status. Thus, the trial court’s decision to permit the Estate to proceed IFP in the proceedings on remand did not contravene Rule 3. Dr. Blake argues that a party may not assert IFP status on remand, because M.R.A.P. 6 allows for IFP appeals from criminal, not civil, cases. Dr. Blake mistakenly characterizes proceedings on remand as appellate proceedings. It is the general rule in civil cases that a new trial on remand is a trial de novo on all issues. Moreover, pursuant to M.R.A.P. 1, Rule 6 is not applicable to the proceedings on remand. Thus, in proceedings on remand for a new trial, a litigant may seek and obtain IFP status. Issue 3: False sworn testimony Dr. Blake argues that the trial court erred in finding that, although Deborah, Clein’s wife, submitted false testimony, dismissal was not warranted. Despite finding that Deborah had provided false sworn testimony on several occasions, the trial court held that this did not “outweigh the apparent insolvency of the Estate and Deborah Clein individually.” The trial court found that the sanction of dismissal was unwarranted, nor was dismissal warranted under the doctrine judicial estoppel, as Deborah’s failure to include her pending lawsuits in her bankruptcy petition was on the advice of counsel and did not prejudice her creditors because the petition was dismissed. Deborah’s misrepresentations did not pertain to the merits of her medical malpractice claim. Thus, the trial court was within its discretion in refusing to impose the ultimate sanction of dismissal. Dr. Blake also argues that the trial court erred by finding that, despite Deborah’s numerous false sworn statements, the Estate’s allegation of poverty was not untrue. Dr. Blake argues that Deborah tried to persuade the court that the estate owed debts totaling $136,850, plus fees and interest, but in her deposition, Deborah admitted these funds would have to be repaid only in the event of a recovery in the medical malpractice case. The comment to M.R.C.P. 3 provides that Rule 3(c) accords with sections 11-53-17 and 11-53-19. Section 11-53-19 states that the court may dismiss an action commenced or continued on affidavit of poverty, if satisfied that the allegation of poverty was untrue. The trial court’s determination of whether a pauper’s affidavit is untrue is a fact-finding that must be afforded deference on appellate review if the finding is supported by substantial, credible and reasonable evidence. Here, sufficient evidence supported the trial court’s decision that the Estate’s allegation of poverty was not untrue. |
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