MILLER v. MYERS

• Decision Date: 22 June 2010
• Docket Number: No. 2009-CA-00200-COA.,2009-CA-00200-COA.
• Citation: 38 So.3d 648
• Parties: Talmadge MILLER, Appellant v. Ann MYERS, Appellee.
• Court: Mississippi Court of Appeals

38 So.3d 648

Talmadge MILLER, Appellant

v.Ann MYERS, Appellee.

No. 2009-CA-00200-COA.

Court of Appeals of Mississippi.

June 22, 2010.

Michael P. Younger, Brandon, attorney for appellant.

Anastasia G. Jones, Mildred M. Morris, Timothy Lee Sensing, Jackson, attorneys for appellee.

Before MYERS, P.J., BARNES and MAXWELL, JJ.

MAXWELL, J., for the Court:

¶ 1. The Hinds County Circuit Court granted summary judgment in favor of Dr. Ann Myers in this medical-malpractice case. Talmadge Miller filed suit after being diagnosed with Guillian-Barre Syndrome and lupus. He alleged these diseases resulted from his use of the drug Remicade, which Dr. Myers had prescribed him. Miller claims the Hinds County Circuit Court improperly granted summary judgment because his initial filing in the Rankin County Circuit Court had tolled the statute of limitations. He also contends the circuit court erred in granting summary judgment without a hearing. Finding no reversible error, we affirm.

FACTS

¶ 2. On March 24, 2003, Baptist Medical Center emergency room doctors diagnosed Miller with Guillian-Barre Syndrome and lupus. He alleged the drug Remicade, which Dr. Myers had previously prescribed him for rheumatoid arthritis, caused his health problems.

¶ 3. On August 31, 2004, Miller filed a medical-malpractice suit against Dr. Myers in the Circuit Court of Rankin County. Dr. Myers did not answer the complaint. On March 7, 2005, the circuit court entered a default judgment against her. Dr. Myers then filed a motion to set aside the default judgment and to dismiss the action. She alleged Miller failed to properly serve her with process, and because she practiced medicine in Hinds County, not Rankin County, venue was improper. The circuit court ultimately set aside the default judgment and dismissed the lawsuit on November 9, 2005. The circuit court based its decision on Miller's confession that he failed to properly effect service of process on Dr. Myers.

¶ 4. On December 13, 2005, Miller filed a second malpractice action against Dr. Myers, this time in Hinds County Circuit Court. On March 28, 2006, Dr. Myers filed a motion for summary judgment. She claimed the two-year statute of limitations had expired prior to Miller filing the Hinds County complaint. Because Dr. Myers had not been properly served in the Rankin County action, she claimed the statute of limitations remained tolled for only 120 days. She argued that after 120 days, the statute of limitations began running again and expired on July 23, 2005, almost five months prior to Miller initiating the Hinds County lawsuit.

¶ 5. On August 11, 2006, Miller apparently mailed a response to Dr. Myers's motion for summary judgment directly to the circuit judge. He did not file his response with the circuit clerk. On August 14, 2005, Dr. Myers filed a motion to strike Miller's response as untimely, as well as a rebuttal to Miller's response. At this point all documents mailed to Miller's attorney were wrongly addressed to his former office, from which he had recently moved. Miller insinuates this was perhaps intentional on the part of Dr. Myers's attorneys to gain a tactical advantage. Miller's attorney asserts that he did not discover the pending summary-judgment motion until personally inspecting the court file.

¶ 6. The Hinds County circuit judge granted a hearing, and on August 15, 2006, the judge heard arguments on Dr. Myers's summary-judgment motion. The circuit judge did not strike Miller's response or otherwise rule on the summary-judgment motion during the hearing. On August 30, 2006, Dr. Myers filed a supplement to her motion for summary judgment, which she mailed to Miller's attorney's new address. Though the supplemental filing bore Miller's proper address, there is no response from Miller in the record. Dr. Myers then filed a second supplement to the motion and sent a copy to Miller's attorney's new office. The record shows no response by Miller to this supplement either.

¶ 7. A second hearing on the motion for summary judgment was scheduled for August 18, 2008. Miller failed to appear at this hearing. His absence resulted in the circuit judge issuing a show-cause order. The order directed Miller to respond to Dr. Myers's motions by August 25, 2008, or summary judgment would be granted without further hearing. Miller's response to the show-cause order is also absent from the record. However, Dr. Myers filed a rebuttal to his response on August 26, 2008, which indicates Miller claimed he received no notice of the hearing.

¶ 8. On October 16, 2008, Dr. Myers filed a third notice for a hearing on the motion for summary judgment, to be held on December 16, 2008. Though Dr. Myers's attorney sent the notice by certified mail to Miller on three occasions, it was returned unclaimed each time. The record includes affidavits from employees of Dr. Myers's attorney's law firm who attempted to hand deliver notice to Miller's attorney. After three attempts, on October 23, 2008, one of the runners was able to deliver notice of the hearing to Miller's attorney's office by handing it to a secretary.

¶ 9. Miller claims his attorney's hospitalization for knee surgery around this time prevented him from receiving the notice. However, his attorney admits he became aware of the scheduled hearing. On December 16, 2006, Miller's lawyer appeared in the Hinds County Circuit Court. But once there, he discovered the circuit judge had already entered summary judgment in Dr. Myers's favor. The circuit judge granted summary judgment on the basis that Miller confessed the issues raised by Dr. Myers. Miller now appeals the grant of summary judgment.

STANDARD OF REVIEW

¶ 10. We review the circuit court's granting of summary judgment de novo. Byrne v. Wal-Mart Stores, Inc., 877 So.2d 462, 464 (¶ 3) (Miss.Ct.App.2003) (citing Young v. Wendy's Int'l, Inc., 840 So.2d 782, 783 (¶ 3) (Miss.Ct.App.2003)). Summary judgment is proper when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Id. at 464-65 (¶ 3) (quoting Piggly Wiggly of Greenwood, Inc. v. Fipps, 809 So.2d 722, 725 (¶ 9) (Miss.Ct.App.2001)); M.R.C.P. 56(c). We view the evidence in the light most favorable to the non-movant. Byrne, 877 So.2d at 465 (¶ 3) (citing Young, 840 So.2d at 784 (¶ 7)).

¶ 11. “[T]he error in granting a summary judgment motion without a hearing may be harmless error if there are, indeed, no triable issues of fact.” Partin v. N. Miss. Med. Ctr., Inc., 929 So.2d 924, 934 (¶ 38) (Miss.Ct.App.2005) (citing Croke v. Southgate Sewer Dist., 857 So.2d 774, 778 (¶ 10) (Miss.2003); Adams v. Cinemark USA, Inc., 831 So.2d 1156, 1163 (¶ 26) (Miss.2002)).

DISCUSSION

I. Summary Judgment

¶ 12. The circuit judge found Miller confessed the issues raised in Dr. Myers's “supplemented/renewed” motion for summary judgment by failing to respond to the court's show-cause order. Miller filed no response to any of Dr. Myers's supplemental filings supporting her summary-judgment motion. The circuit court noted in its order of dismissal that Miller's only response was his assertion that he never received the additional motions. In granting summary judgment, the circuit judge found Miller had failed to present any support for his malpractice action, confessed the issues raised by Dr. Myers, and otherwise failed to show any good cause why summary judgment should not be granted.

¶ 13. In addressing the circuit judge's decision that Miller confessed the issues raised by Dr. Myers, we first note that an opponent to a motion for summary judgment “must rebut by producing significant probative evidence showing that there are indeed genuine issues for trial.” McMichael v. Nu-Way Steel & Supply, Inc., 563 So.2d 1371, 1375 (Miss.1990) (quoting Newell v. Hinton, 556 So.2d 1037, 1041 (Miss.1990)). The opponent to summary judgment carries “a burden of rebuttal, one which arises after the moving party has satisfied the burden of proof that no genuine issue of material fact exists.” Price v. Purdue Pharma Co., 920 So.2d 479, 485 (¶ 16) (Miss.2006). A party adverse to the motion “must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” M.R.C.P. 56(e).

¶ 14. But the mere failure of a non-movant to respond does not necessarily entitle the movant to summary judgment by default. The supreme court has pointed out that “even in the absence of a response the court may enter judgment only ‘if appropriate,’ i.e., if no genuine issue of material fact exists.” Foster v. Noel, 715 So.2d 174, 180 (¶ 36) (Miss.1998).

¶ 15. Here, the record is devoid of any response by Miller to Dr. Myers's initial, March 28, 2006, motion for summary judgment. This omission is attributed to Miller, as it is the appellant's duty to ensure information necessary to his appeal is included in the record. Sutherlands Lumber & Home Ctr., Inc. v. Whittington, 878 So.2d 80, 83 (¶ 9) (Miss.Ct.App.2003) (citing Branch v. State, 347 So.2d 957, 958-59 (Miss.1977)). Though his response is absent, the record includes Dr. Myers's rebuttal to Miller's response. This indicates Miller did at least oppose summary judgment. Based on Dr. Myers's rebuttal and the nature of her replies, we glean that Miller argued: (1) he properly served process upon Dr. Myers in the original suit; thus, the statute of limitations remained tolled until he filed his Hinds County action, and (2) his initial pre-suit notice, required by Mississippi Code Annotated section 15-1-36(15) (Rev.2003), tolled the statute of limitations until he filed his Hinds County lawsuit. Additionally, based on Dr. Myers's supplements to her motion for summary judgment, which address specific questions raised by the circuit judge during the...