George A. Cole v. Central Mississippi Medical Center
Annotate this Case
Download PDF
IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-CA-01233-COA
GEORGE A. COLE
v.
METHODIST MEDICAL CENTER
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANT
APPELLEE
06/26/2000
HON. JAMES E. GRAVES JR.
HINDS COUNTY CIRCUIT COURT
KENNETH K. CRITES
HEBER S. SIMMONS III
C. YORK CRAIG III
TINA LORRAINE NICHOLSON
CIVIL - PERSONAL INJURY
SUMMARY JUDGMENT GRANTED APPELLEE
AFFIRMED - 6/18/2002
7/9/2002
BEFORE KING, P.J., BRIDGES, AND CHANDLER, JJ.
KING, P.J., FOR THE COURT:
¶1. George A. Cole filed a lawsuit in the First Judicial District of Hinds County Circuit Court against
Methodist Medical Center (Methodist) on July 9, 1998, requesting damages for injuries he alleged to have
been caused by Methodist's negligent acts and omissions. Methodist filed its response and a motion for
summary judgment. The trial court granted Methodist's motion. Aggrieved, Mr. Cole appeals and cites the
following issues as error:
I. May a default judgment be entered against a party on summary judgment solely for
failure to respond?
II. Assuming arguendo that the court could enter a default judgment, would such a judgment
be appropriate in the case at bar?
FACTS
¶2. On September 2, 1998, Mr. Cole filed an amended complaint (which changed only the name of the
defendant from Methodist Medical Center to Methodist Healthcare-Jackson Hospitals) against Methodist.
Cole alleged that Methodist failed to monitor his needs while in the hospital on August 31, 1996. Cole
alleged that the lock on the bathroom door was defective. His complaint alleged that because the door was
not secure and he did not receive the assistance of hospital personnel, he "fell injuring the right side of his
chest and right shoulder."
¶3. The record reflects the following chronology of events:
07/09/98: complaint filed against Methodist
08/13/98: Methodist filed its answer and defenses
09/02/98: Cole filed an amended complaint
09/30/98: Methodist filed its answer to amended complaint
02/11/99: scheduling order entered
06/28/99: Methodist filed a motion for summary judgment
06/28/99: Methodist filed affidavit of Jim Baxter, Director of Plant Operations of Central Mississippi
Medical Center in support of the motion for summary judgment
06/28/99: Methodist sent a letter to Cole advising that the hearing date on the motion for summary
judgment had been set for September 7, 1999 at 9:00 a.m.
07/01/99: notice of setting on motion for summary judgment for September 7, 1999
07/13/99: Cole by letter to Methodist requested thirty-day extension in which to respond to motion
for summary judgment
07/15/99: Methodist by letter to Cole agreed to extension until August 1, 1999 to respond to motion
for summary judgment
08/02/99: phone call requesting a further extension until August 6, 1999
08/03/99: Methodist by letter to Cole agreed to an extension until August 6, 1999 regarding the
response to the motion for summary judgment
09/09/99: Methodist granted summary judgment
09/22/99: Cole filed a motion to vacate summary judgment
10/08/99: Methodist filed a response to the motion to vacate
11/04/99: Methodist wrote Cole and questioned that he either secure a hearing date for his motion to
vacate or abandon the motion
01/11/00: Methodist again wrote Cole to request that the motion to vacate be set for hearing or
abandoned
03/01/00: Cole's attorney by letter to trial judge advised that he had obtained a job out-of-state and
needed to withdraw from the case. He gave the name of the attorney who would continue
representation of Cole.
03/10/00: order granting motion of Cole's attorney to withdraw
03/17/00: Methodist filed a motion to confirm order of dismissal
05/24/00: letter to trial judge from Cole's "former attorney" and an accompanying affidavit stating that
he received neither defendant's request for admissions nor a notice of the hearing on defendant's
motion for summary judgment
05/30/00: Cole responds to Methodist's motion to confirm order of dismissal
06/26/00: order granting the motion to confirm an order of dismissal
ISSUES AND ANALYSIS
I.
May a default judgment be entered against a party on summary judgment solely for failure
to respond?
¶4. Cole contends that summary judgment should not be granted where it is based solely upon the failure to
respond to a motion for summary judgment sought pursuant to rule 56(c) of the M.R.C.P.(1) Cole maintains
that the trial court should have, but failed to consider the factual basis for the motion. He states that the
order entered in this action does not reflect that the court made any factual inquiry or analysis as to the
merits of this case but, granted a default judgment(2) based on his failure to respond. When asked to review
a trial court's grant of summary judgment, this Court employs the following standard:
The standard for reviewing the granting or the denying of summary judgment is the same standard as is
employed by the trial court under Rule 56(c). This Court conducts de novo review of orders granting
or denying summary judgment and looks at all the evidentiary matters before it--admissions in
pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the
light most favorable to the party against whom the motion has been made. The burden of showing that
no genuine issue of material fact exists lies with the moving party, and we give the benefit of every
reasonable doubt to the party against whom summary judgment is sought. We do not try issues.
Rather, we only determine whether there are issues to be tried. Furthermore, it is well-settled that
motions for summary judgment are to be viewed with a skeptical eye, and if a trial court should err, it
is better to err on the side of denying the motion. The focal point of our de novo review is on material
facts . . . .
Dailey v. Methodist Med. Ctr., 790 So. 2d 903 (¶3) (Miss. Ct. App. 2001) (citations omitted).
¶5. While there is no transcription of any argument regarding the motion for summary judgment, this Court
has reviewed what limited information has been provided to it. This information includes copies of the
pleadings, responses to the pleadings, the motion for summary judgment, and the order granting the
summary judgment.
¶6. Cole suggests that a genuine issue of fact exists as to whether or not Methodist provided adequate
assistance and monitoring while he was a patient at the hospital. He argues this issue of fact precluded
summary judgment.
¶7. A trial court must deny a summary judgment motion, even if the non-moving party makes no response
whatsoever, so long as all the data before the court, including "pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any," viewed in the light most favorable
to the non-moving party, raises a triable issue concerning a disputed material fact. Foster v. Noel, 715 So.
2d 174 (¶36) (Miss. 1998). The determining factor involved in granting a summary judgment is whether or
not there is a "genuine issue as to any material fact." George County By and Through Bd. of Sup'rs v.
Davis, 721 So. 2d 1101 (¶13) (Miss. 1998).
¶8. Cole's claim is one of negligence. The elements of proof required for a negligence claim include duty,
breach of duty, proximate cause and damages. Palmer v. Biloxi Reg'l Med. Ctr., Inc., 564 So. 2d 1346,
1354 (Miss. 1990). Cole has failed to provide evidence to establish negligence as a genuine issue of
material fact in response to the motion for summary judgment and that the trial court erred in granting
summary judgment. Our review of the information provided to this Court reveals that Cole failed to raise
any genuine issue of material fact regarding the motion for summary judgment. Therefore, we affirm the trial
court's decision.
II.
Assuming arguendo that the court could enter a default judgment, would such a judgment be
appropriate in the case at bar?
¶9. Our finding on issue I renders moot this matter.
¶10. THE JUDGMENT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY
CIRCUIT COURT GRANTING SUMMARY JUDGMENT IN FAVOR OF THE APPELLEE IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND BRANTLEY, JJ., CONCUR.
1. M.R.C.P. RULE 56-SUMMARY JUDGMENT: (c) Motion and Proceedings Thereon. The
motion shall be served at least ten days before the time fixed for the hearing. The adverse party prior
to the day of the hearing may serve opposing affidavits. The judgment sought shall berendered
forthwith if 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. A summary judgment, interlocutory in character,
may be rendered on the issue of liability alone, although there is a genuine issue as to the amount of
damages. . .
2. M.R.C.P. RULE 55(a)(b) - DEFAULT: (a) Entry. When a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that
fact is made to appear by affidavit or otherwise, the clerk shall enter his default. (b) Judgment. In all
cases the party entitled to a judgment by default shall apply to the court therefor. If the party against
whom judgment by default is sought has appeared in the action, he (or if appearing by representative,
his representative) shall be served with written notice of the application for judgment at least three
days prior to the hearing of such application; however, judgment by default may be entered by the
court on the day the case is set for trial without such three days' notice. If in order to enable the court
to enter judgment or to carry it into effect it is necessary to take an account or to determine the
amount of damages or to establish the truth of any averment by evidence or to make an investigation
of any other matter, the court may conduct such hearing with or without a jury, in the court's
discretion, or order such references as it deems necessary and proper.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
