Cunningham By and Through Cunningham v. Mitchell, 57426
| Decision Date | 07 December 1988 |
| Docket Number | No. 57426,57426 |
| Citation | 535 So.2d 589 |
| Parties | Tiffany Michelle CUNNINGHAM, A Minor, By and Through Her Next Friend, Patricia CUNNINGHAM, Individually, and Charles Cunningham v. Ernest MITCHELL, M.D.; A, B and C, Whose Identities Are Unknown But Who Will be Added By Amendment Upon Discovery, Jointly and Severally. |
| Court | Mississippi Supreme Court |
Jim Davis Hull, Moss Point, for appellants.
James H. Heidelberg, Bryant, Stennis & Colingo, Pascagoula, for appellees.
Before ROY NOBLE LEE, C.J., and ROBERTSON and ANDERSON, JJ.
I.
This matter raises questions regarding the time limitations within which a minor must perfect an appeal to this Court and the extent to which we may reconsider an order dismissing an appeal which has become final.
II.
The record before us reveals a tortured procedural history. We begin in the Circuit Court of Jackson County, Mississippi. On June 28, 1985, Tiffany Michelle Cunningham, an infant, by and through her next friend, Patricia Cunningham, her mother, filed her complaint in a cause of medical malpractice. Patricia Cunningham and Charles Cunningham, Tiffany's parents, joined as plaintiffs. Named as defendants were Dr. Ernest Mitchell and others to be joined later. The gravamen of the complaint was that on June 29, 1983, Dr. Mitchell and others negligently delivered the child, Tiffany, causing her personal injury.
Various pre-trial wranglings ensued, primarily related to Dr. Mitchell's efforts to obtain discovery of and from plaintiffs. On October 15, 1985, the Circuit Court entered an order compelling discovery. Thereafter, on November 7, 1985, the Circuit Court found that plaintiffs had failed to comply with the October 15 order and finally dismissed the complaint. See Rule 37(b)(2)(C), Miss.R.Civ.P.
Some 29 days later, on December 6, 1985, the plaintiffs Cunningham filed a motion for relief of judgment, citing Rules 59 1 and 60, Miss.R.Civ.P. in which they asked that the Court vacate the November 7 order of dismissal. As grounds for the motion, plaintiffs argued excusable neglect. On the same day, December 6, 1985, the plaintiffs Cunningham filed with the Circuit Court a notice of appeal to this Court. The notice designated the order compelling discovery of October 15, 1985, and the order of dismissal of November 7, 1985, as the orders appealed from.
On January 3, 1986, the Circuit Court entered its order overruling and denying plaintiffs' motion for relief of judgment. No new notice of appeal was filed following the January 3, 1986, order.
On July 9, 1986, Dr. Ernest Mitchell, as appellee, filed a motion to docket and dismiss appeal. On August 8, 1986, the Plaintiffs Cunningham filed their response to the motion and their brief in opposition. The record reflects that the notice of appeal was filed on December 6, 1985, some 29 days after the November 7 order of dismissal. Our rules in effect at the time provided that a notice of appeal would be filed within 30 days of entry of the order appealed from. 2 Notwithstanding, this Court entered its order granting Mitchell's motion to docket and dismiss on August 20, 1986. No petition for rehearing was filed on the order dismissing the appeal.
On September 9, 1986, the Plaintiffs Cunningham filed a new notice of appeal, again designating as the orders appealed from the October 15, 1985 order compelling discovery and the November 7, 1985 order dismissing their complaint. On the same day, Tiffany Michelle Cunningham filed her motion to reinstate appeal. The Court denied this motion without opinion on October 15, 1986. No petition for rehearing was filed.
On November 18, 1987, the infant, Tiffany Michelle Cunningham, filed in the Circuit Court of Jackson County yet another notice of appeal. In this notice she designated as the orders appealed from the October 15, 1985 motion compelling discovery, the November 7, 1985 order of dismissal and the January 3, 1986 order overruling the motion for relief of judgment. Then on December 4, 1987, Tiffany Michelle Cunningham filed her motion to suspend rules and for reinstatement of cause to which Appellee Mitchell has responded in opposition.
III.
The question is whether any part of the case is before this Court for appeal. For it to be so, one of the three notices of appeal--that of December 6, 1985, of September 9, 1986, or of November 18, 1987--must have fertilized the egg and ripened into a perfected appeal.
Principles analogous to res judicata carry us part of the way. Where a motion to docket and dismiss has been granted and by lapse of time our order of dismissal has become final, we inquire not into the merits either of the granting of the motion or of the proffered appeal. The order of dismissal stands even though, upon reflection, it be seen completely erroneous. Cf. Aetna Casualty & Surety Co. v. Espinosa, 469 So.2d 64, 67 (Miss.1985); see also Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 398-99, 101 S.Ct. 2424, 2428, 69 L.Ed.2d 103 (1981).
The December 6, 1985, notice of appeal is disposed of by this Court's order of August 20, 1986, granting the motion to docket and dismiss appeal. The September 9, 1986, notice of appeal is dispatched by this Court's order of October 15, 1986, denying Appellant Cunningham's motion to reinstate appeal.
This leaves only the notice of appeal filed November 18, 1987. In this respect our rules provide a two-year time period for perfection of an appeal where the appellant is a minor plaintiff. In relevant part, the rule provides:
In cases where the appellant infant ... was a plaintiff or complainant, ..., appeals to this Court shall be taken in the manner prescribed in this rule within two years of the entry of the judgment or order which would cause to commence the running of the 30 day time period for all other applicants as provided in this rule. 3
Tiffany Michelle Cunningham's notice of appeal 4 filed November 18, 1987, is ineffective to appeal the Circuit Court's order of October 15, 1985, on two scores. First, the notice is given two years, 34 days after entry of the order and is thus barred under Rule 48(j). Moreover, the October 15, 1985, order is not an appealable final judgment. The November 7, 1985, order is a final judgment subject to appeal, but the notice was filed two years and twelve days after entry of that order--twelve days too late under Rule 48(j).
The January 3, 1986, order is a different matter. That order, it will be recalled, was entered by the Circuit Court denying Plaintiffs' December 6, 1985, motion for relief of judgment. As the November 18, 1987, notice of appeal 5 was filed within two years of January 3, 1986, it is effective to place on the appellate docket of this Court and perfect an appeal of and from the Circuit Court...
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