Holder v. Orange Grove Med. Specialties

• Citation: 54 So.3d 192
• Decision Date: 03 March 2011
• Docket Number: No. 2008–CT–01442–SCT.,2008–CT–01442–SCT.
• Parties: Marguerite B. HOLDER and Herbert Holderv.ORANGE GROVE MEDICAL SPECIALTIES, P.A., and Boyd Benefield, M.D.
• Court: United States State Supreme Court of Mississippi

54 So.3d 192

Marguerite B. HOLDER and Herbert Holder

v.ORANGE GROVE MEDICAL SPECIALTIES, P.A., and Boyd Benefield, M.D.

No. 2008–CT–01442–SCT.

Supreme Court of Mississippi.

Dec. 9, 2010.Rehearing Denied March 3, 2011.

L. Christopher Breard, attorney for appellants.Stephen Giles Peresich, Biloxi, Johanna Malbrough McMullan, Jackson, Brian Douglas Mayo, attorneys for appellees.EN BANC.

ON WRIT OF CERTIORARI

CARLSON, Presiding Justice, for the Court:

¶ 1. Marguerite Holder and her husband, Herbert Holder (the Holders), filed a medical-negligence suit against Orange Grove Medical Specialties, P.A.; Boyd Benefield, M.D.; and John Does One through Five (Orange Grove) on December 7, 2006, in the Circuit Court for the First Judicial District of Harrison County. On July 29, 2008, almost one year and eight months later, the circuit judge dismissed the suit with prejudice, as to each defendant, for want of prosecution in accordance with Mississippi Rule of Civil Procedure 41(b). The Holders appealed the dismissal, and the Court of Appeals reversed the circuit court, holding that the circuit judge should have imposed a lesser sanction. Holder v. Orange Grove Med. Specialties, P.A., 54 So.3d 244 (Miss.Ct.App.2010), reh'g denied (May 18, 2010). Orange Grove petitioned this Court for writ of certiorari, which we granted. Holder v. Orange Grove Med. Specialties, P.A., 39 So.3d 5 (Miss.2010). Finding error in the Court of Appeals' judgment reversing the trial court's Rule 41(b) dismissal, we reverse the decision of the Court of Appeals and reinstate and affirm the judgment of the Circuit Court for the First Judicial District of Harrison County.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. The following history, in large part, is taken from the facts and trial-court proceedings as set out in the opinion of the Court of Appeals.

¶ 3. On September 21, 2004, Marguerite was admitted to Garden Park Medical Center after having been diagnosed with a new onset of atrial fibrillation. She was discharged from Garden Park on or about September 26, 2004, by Dr. Benefield and placed on the blood-thinning medication, Coumadin.

¶ 4. According to the complaint, blood tests taken on October 6, 2004, indicated that her Coumadin levels were therapeutically too high for her condition and placed her at a greater risk for a stroke. No change in her therapy was ordered, but a follow-up appointment was made for October 13, 2004. Also, an appointment had been scheduled with Dr. Shah,¹ Marguerite's cardiologist, who apparently had been called in as a consultant by Dr. Benefield when Marguerite was in the hospital.²

¶ 5. The plaintiffs alleged that when Marguerite arrived for her appointment at Orange Grove on October 13, she was told by an unnamed employee, who was a nurse at [the] clinic, that additional blood work would not be necessary because it had been performed the week before. Marguerite did not see the doctor that day, and no adjustments were made to her Coumadin dosage. The following day, on October 14, 2004, Marguerite suffered a hemorrhagic stroke.

¶ 6. The plaintiffs filed their complaint on December 7, 2006, more than two years after Marguerite had suffered her stroke.³ The defendants filed a motion for enlargement of time in which to file an answer, which was granted on January 8, 2007. The defendants timely filed their answer and defenses to the plaintiffs' complaint on February 12, 2007. Along with that motion, the defendants filed a motion to compel waiver of medical privileges, which included their “First Set of Interrogatories and Requests for Production of Documents to the Plaintiffs.”

¶ 7. On March 8, 2007, plaintiffs' counsel sent correspondence to defendants' counsel advising that he was in trial on another matter “for the next couple of days” and would not be able to complete discovery until that trial was concluded.

¶ 8. On May 4, 2007, defendants' counsel sent correspondence to plaintiffs' counsel inquiring when responses to the defendants' discovery requests would be completed. On May 22, 2007, plaintiffs' counsel provided the defendants with an “Authorization to Disclose, Release and Furnish Protected Health Information.”

¶ 9. On May 24, 2007, defendants' counsel refaxed his May 4 inquiry about completion of discovery to plaintiffs' counsel, and did so again on June 4, 2007. According to the defendants, each request was ignored.

¶ 10. Approximately one year later, on May 5, 2008, plaintiffs' counsel sent a letter to defendants' counsel requesting to take Dr. Benefield's deposition. Two days later, while still not having answered the defendants' discovery, plaintiffs' counsel filed interrogatories and requests for production of documents. On May 9, 2008, the defendants filed a motion to dismiss for failure to prosecute, citing in part the plaintiffs' failure to answer discovery.

¶ 11. On May 22, 2008, the plaintiffs filed answers to the interrogatories and requests for production of documents which had been propounded by the defendants on February 12, 2007, more than fifteen months earlier, along with a motion to compel the deposition of defendant, Dr. Benefield. The defendants responded on June 10, 2008, by filing a motion seeking to strike the plaintiffs' motion to compel Dr. Benefield's deposition. On July 24, 2008, the plaintiffs filed their response to the defendants' motion to dismiss for failure to prosecute.

¶ 12. The defendants' motion to dismiss came before the Circuit Court of Harrison County on July 25, 2008. After a hearing on the matter, the trial court ordered the case dismissed with prejudice, holding:

I feel like that the delays in responding to discovery and not pursuing the case as it should have been for this period of time is certainly sufficient for the Court to deem that the case was not pursued properly; that it should be dismissed for failure to prosecute the case.

¶ 13. Upon request from plaintiffs' counsel that a statement of findings of fact and conclusions of law be made by the court, the trial judge stated: “I'm not going to make a finding of fact and conclusion of law any further than adopting the argument of counsel for the defendant, the cases that he has cited as to the basis for the dismissal [sic]. And the record speaks for itself. That's it.” Holder, 54 So.3d at 246–48, ¶¶ 2–12.

PROCEEDINGS IN THE COURT OF APPEALS

¶ 14. Before the Court of Appeals, the Holders asserted that the trial court had abused its discretion in dismissing the case for want of prosecution. The Court of Appeals thoroughly addressed the issue and reversed the trial court, finding that there was no actual or presumptive prejudice to the defendants and that no aggravating factors were present. Holder, 54 So.3d at 252, ¶ 41.

DISCUSSION

¶ 15. On July 29, 2010, we granted the defendants' petition for writ of certiorari. Holder v. Orange Grove Med. Specialties, 39 So.3d 5 (Miss.2010).

¶ 16. We employ an abuse-of-discretion standard when reviewing a trial court's dismissal for failure to prosecute pursuant to Rule 41(b). Am. Tel. & Tel. v. Days Inn of Winona, 720 So.2d 178, 180 (Miss.1998) (citing Wallace v. Jones, 572 So.2d 371, 375 (Miss.1990)). “Because the law favors a trial of the issues on the merits, a dismissal for lack of prosecution is employed reluctantly.” Miss. Dep't of Human Servs. v. Guidry, 830 So.2d 628, 632 (Miss.2002) (citing Am. Tel. & Tel., 720 So.2d at 180; Watson v. Lillard, 493 So.2d 1277, 1278 (Miss.1986)).

¶ 17. Mississippi Rule of Civil Procedure 41(b) permits defendants to move for dismissal of any action “[f]or failure of the plaintiff to prosecute....” Miss. R. Civ. P. 41(b). “Rule 41(b) embodies the tenet that ‘any court of law or equity may exercise the power to dismiss for want of prosecution. This power, inherent to the courts, is necessary as a means to the orderly expedition of justice and the court's control of its own docket.’ ” Hillman v. Weatherly, 14 So.3d 721, 726 (Miss.2009) (citing Cucos, Inc. v. McDaniel, 938 So.2d 238, 240 (Miss.2006)) (citing Walker v. Parnell, 566 So.2d 1213, 1216 (Miss.1990)) (quoting Watson, 493 So.2d at 1278). Motions for failure to prosecute are considered on a case-by-case basis. Id. (citing Am. Tel. & Tel., 720 So.2d at 181 (citing Wallace, 572 So.2d at 376)). “There is no set time limit on the prosecution of an action once it has been filed, and dismissal for failure to prosecute will be upheld only ‘where the record shows the plaintiff has been guilty of dilatory or contumacious conduct.’ ” Miss. Dep't of Human Servs., 830 So.2d at 632 (citing Watson, 493 So.2d at 1278). Finally, this Court also must consider whether lesser sanctions would suffice. Id. at 633 (citing Am. Tel. & Tel., 720 So.2d at 181–82). We also are “mindful of the fact that ‘dismissal with prejudice is an extreme and harsh sanction that deprives a litigant of the opportunity to pursue his claim, and any dismissals with prejudice are reserved for the most egregious cases.’ ” Hoffman v. Paracelsus Health Care Corp., 752 So.2d 1030, 1034 (Miss.1999) (citing Wallace, 572 So.2d at 376).

¶ 18. In sum, this Court may uphold a Rule 41(b) dismissal when there is: (1) a record of dilatory or contumacious conduct by the plaintiff; and (2) a finding by this Court that lesser sanctions would not serve the interests of justice. Additional “aggravating factors” or actual prejudice may bolster the case for dismissal, but are not requirements. We address each of these considerations below.

A. Clear Record of Delay

¶ 19. The Court of Appeals correctly found a clear record of delay in today's case. Holder, 54 So.3d at 250, ¶ 28. The Court of Appeals made the following findings with regard to delay: the Holders did not submit their answers to interrogatories until 435 days past the deadline set by Mississippi Rule of Civil Procedure 33(b)(3); ⁴ the Holders did not begin their own discovery until almost a year past the deadline set by Uniform Rule of Circuit and County Court...