Martin v. Reikes

• Decision Date: 25 September 1991
• Docket Number: No. 07-CA-59332,07-CA-59332
• Citation: 587 So.2d 285
• Parties: Laverne MARTIN and Garlon Martin v. Dan REIKES, M.D., Carl Hale, M.D., D.F. Kobs, Jr., and Charles E. Strauss, M.D.
• Court: Mississippi Supreme Court

Page 285

587 So.2d 285

Laverne MARTIN and Garlon Martin v. Dan REIKES, M.D., Carl Hale, M.D., D.F. Kobs, Jr., and Charles E. Strauss, M.D.

No. 07-CA-59332.

Supreme Court of Mississippi.

Sept. 25, 1991.

V. Douglas Gunter, Jackson, Alfred L. Felder, McComb, Margaret P. Ellis, Kitchens & Ellis, Pascagoula, for appellants.

Lawrence C. Gunn, Jr., Gunn & Roberts, Hattiesburg, for appellees.

Robert A. Pritchard, Pritchard & Chapman, Pascagoula, William R. Phillips, Jackson, Henry P. Pate, III, Pascagoula, for intervenors.

Before ROY NOBLE LEE, PRATHER and ROBERTSON, JJ.

PRATHER, Justice, for the Court:

I. INTRODUCTION

In 1974, Dr. J.P. Culpepper, a Hattiesburg surgeon, performed a hysterectomy on Laverne Martin. Subsequent tests on Martin's removed uterus revealed the presence of uterine cancer. Dr. Culpepper and a "conference of doctors" recommended to Martin that she undergo radiation treatment. The treatments allegedly led to various side effects, which Martin contended were the consequence of medical malpractice. So in 1978, she and her husband filed a suit against various doctors in the Forrest County Circuit Court. The Mississippi Medicaid Commission (hereinafter "Commission"), which paid Laverne Martin benefits totalling nearly $38,000 for her treatment, intervened in the suit as a plaintiff.

Trial finally commenced in 1981 with Judge Jack Weldy presiding. About three weeks of testimony later, the jury found in favor of the plaintiffs and awarded them $340,000. The Martins then filed a motion for an additur. In response, the judge ordered the doctors to pay the Martins an additional $200,000 or, alternatively, be subjected to a new trial on damages alone. The doctors opted for a new trial on damages, upon completion of which the jury awarded the Martins $543,750. The doctors appealed and, on May 22, 1985, petition for rehearing, this Court reversed and remanded for a new trial. See Reikes v. Martin, 471 So.2d 385 (Miss.1985).

In 1988, approximately three years after this Court issued its decision in Reikes v. Martin, the Martins filed a "Motion for Trial Setting" in the Forrest County Circuit Court. The doctors then filed an "Objection to [the Martin's] Motion for Trial Setting." The doctors based their "objection" on Miss.Code Ann. Sec. 11-3-43 (1990 Supp.) ¹, which provides:

In all cases in which the supreme court shall reverse the judgment or decree of the court below, and remand the cause to be proceeded within such court, or remand a cause for further proceedings, the clerk of the supreme court shall prepare and certify a copy of the opinion of the supreme court in the case, and send it, with the mandate of the judgment or decree rendered in the cause by the supreme court, to the clerk of the court from which the cause was brought, or to which it may be remanded. The copy of the opinion furnished shall be preserved by the clerk to whom it is delivered, for the use of the court and parties in the case.

But in all cases wherein the appellant is the successful litigant on appeal, no mandate shall issue to the clerk of the court below on application of appellee until he has paid to the clerk of the court below, for the benefit of the appellant, the costs paid by the appellant. Should the appellee fail to make such a refund of cost as provided and fail to obtain a mandate to the lower court within two (2) years next after the date of the judgment of reversal of such case by the supreme court, the appellee, his heirs or assigns, shall not thereafter be entitled to apply for a mandate in such case and the clerk of the supreme court shall henceforth thereafter be without authority to issue a mandate therein, or to certify a copy of the opinion in said case, to the clerk of the lower court, and further proceedings in said case shall thereafter be forever barred and the appellee's right of action, as well as his remedy, shall be extinguished.

Also for support of their "Objection" to a trial setting, the doctors cited Uniform Circuit Court Rule 2.02:

Cases upon the civil issue docket, where process has not been served or where process has been served, and that have been called for trial for two terms of court, without any step taken, or trial demanded, shall be dismissed as stale, at plaintiff's cost without notice, unless good reason be shown for a further continuation; and no cause that has been so dismissed shall be reinstated without affidavit setting forth good reason for reinstatement.

The doctors explained the application of Sec. 11-3-43 and Rule 2.02 to this case:

Mississippi Code Annotated, Section 11-3-43 (Supp.1987) requires refund or payment of court costs by the appellee when a case is reversed and remanded. If such payment is not made within two years after the date of the decision in the Supreme Court, then both the right and remedy of the appellee stand forever extinguished and barred.

Nearly three years have elapsed since the decision in the Supreme Court of Mississippi. Thus this case is forever barred and may not be set for trial nor any further proceedings had.

Even if this case should be deemed to have been on the docket of this court for the last three years, then nonetheless the case must be dismissed as a stale case for lack of prosecution pursuant to Uniform Circuit Court Rule 2.02.

Record Vol. I, at 14.

After holding a very brief hearing, Judge Richard McKenzie sustained the doctors' objection and based his decision solely on a "strict interpretation" of Sec. 11-3-43. The judge neither cited nor discussed Circuit Court Rule 2.02 as a basis.

The Martins appealed. The Commission appealed as an intervenor and filed a separate brief.

II. ANALYSIS

A.

Basically, the only issue on appeal is whether the judge erred in sustaining the doctors' objection on the basis of Miss.Code Ann. Sec. 11-3-43 (1990 Supp.). The Martins and the Commission both contend that the judge erred because he misinterpreted Sec. 11-3-43. They explain that, strictly construed, the statute's two-year limitation is conditioned on concurrence of two events: (1) appellee's failure to pay court costs (which the appellant prepays), and (2) appellee's failure to obtain issuance of this Court's mandate. All parties in this case agree: (1) that neither the Martins nor the Commission have paid court costs as ordered through the Reikes mandate, ² and (2) that the Supreme Court Clerk issued the Reikes mandate on May 23, 1985--one day after this Court rendered its decision (on May 22, 1985). ³ Therefore, the "prerequisite concurrent failures did not occur and the limitation imposed by Sec. 11-3-43 ... was of no moment." According to the Martins, the doctors should have "moved that the mandate be withdrawn and the plaintiffs be required to pay the costs of appeal."

The Martins and the Commission alternatively contend that the failure to pay court costs is the consequence of their understanding that costs need not be paid until "final determination" in this case is reached. For support, they cite Miss.Code Ann. Sec. 11-53-69 (1972):

The costs accruing upon suits in any court shall not be due until the final determination thereof, and may then be collected by execution; but the judges shall have power to order and adjudge costs and give decrees and judgments thereon in the progress of suits, as heretofore practiced in said courts.

They also rely on Meridian Coca Cola Co. v. Watson, 164 Miss. 389, 145 So. 344 (1933), for support. In Watson, this Court stated:

The sole question for decision is this: Who is legally liable for the costs incurred on the first trial in the circuit court? Under section 668, Code 1930, which in similar language has been in our Codes for many years, and which provides that "in all civil actions, the party in whose favor judgment shall be given * * * shall be entitled to full costs, except when it may be otherwise directed by law," it has been the general practice in this state, so far as has ever been heard by any of us here, that costs in an action at law in the trial court, although there may be more than one trial, shall be taxed against the unsuccessful party on the final trial. And that seems to be the rule recognized in the majority of the states, where the question has been directly decided. The rule has been succinctly stated in 7 R.C.L., p. 804, as follows: "Where the unsuccessful party to an action, after securing a reversal for error and a new trial on appeal, and having the costs of the appellate court taxed against the appellee, is unsuccessful on the new trial, the costs of the trial court on the first trial as well as on the second should be taxed against him." The principal case relied on in support of this text is Williams v. Hughes, 139 N.C. 17, 51 S.E. 790, 4 Ann.Cas. 77, 79. Upon the page last cited there is a note which has collated many cases to the same effect. See, also, 15 C.J. 246 and notes, where the cases, some of which maintain the minority rule, are cited. Without reviewing the reasons in support of the differences of opinion upon the question before us, we adopt what appears to be the majority rule, and which is as above quoted.

But in doing so we would have it understood that our holding here has no bearing whatever upon the question of costs in the Supreme Court, and particularly do we withhold any intimation that the unsuccessful appellee on the first appeal could charge the costs of this appeal against the unsuccessful defendant on the final trial. Costs in the Supreme Court are governed by their own separate rules, and are not involved in this decision.

164 Miss. at 389, 145 So. at 344-45.

The Martins and the Commission additionally contend that, assuming costs should have been paid within the two-year limitation or thereafter, no one has ever "issued an execution" for, or presented them with, a "Bill of Court Costs"--which is necessary under statutory law and Mississippi Supreme Court Rules. For example, Miss.Code Ann. Sec. 11-53-67 (1972) pro...