Talmadge Miller v. Ann Myers
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-CA-00200-COA
TALMADGE MILLER
APPELLANT
v.
ANN MYERS
DATE OF 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:
MANDATE ISSUED:
APPELLEE
12/15/2008
HON. TOMIE T. GREEN
HINDS COUNTY CIRCUIT COURT
MICHAEL P. YOUNGER
ANASTASIA G. JONES
MILDRED M. MORRIS
TIMOTHY LEE SENSING
CIVIL - MEDICAL MALPRACTICE
SUMMARY JUDGMENT GRANTED TO
DEFENDANT
AFFIRMED - 6/22/2010
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
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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 summaryjudgment 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
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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
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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.
¶12.
Summary Judgment
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
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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
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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 151-36(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 summary-judgment hearing,
we do not find Miller wholly confessed the summary-judgment motion. But we do find he
apparently failed to respond to both supplements to the motion. Thus, our inquiry does not
stop here. Instead, we proceed with our de novo review of the issues raised in Miller’s brief
and during oral argument before this Court.
II.
¶16.
Statute of Limitations
In Mississippi, medical-malpractice claims are governed by the limitations period in
Mississippi Code Annotated section 15-1-36(1) (Rev. 2003), which provides:
No claim in tort may be brought . . . for injuries . . . arising out of the course
of medical, surgical or other professional services unless it is filed within two
(2) years from the date the alleged act, omission or neglect shall or with
reasonable diligence might have been first known or discovered.
It is undisputed that on March 24, 2003, Miller discovered his medical conditions that form
the basis of his lawsuit. Thus, the limitations period commenced running that day. However,
Miller argues the filing of the initial Rankin County action tolled the limitations period. On
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appeal, Miller attempts to circumvent the time bar based on a tolling argument. Specifically,
he claims his service of process on Dr. Myers’s receptionist and his initial pre-suit notice to
Dr. Myers sufficed to toll the statute of limitations.
a.
¶17.
Service of Process, Tolling and the Savings Clause
Civil actions are commenced by filing a complaint with the court. See M.R.C.P. 3(a).
But the filing of a complaint “only tolls [the statute of limitations] for the 120-day service
period of Rule 4(h)[.]” Watters v. Stripling, 675 So. 2d 1242, 1244 (Miss. 1996) (emphasis
added). Unless process is properly served within the 120-day period of Rule 4(h), running
of the limitations period automatically resumes. Triple “C” Transp., Inc. v. Dickens, 870 So.
2d 1195, 1200 (¶34) (Miss. 2004) (citation omitted); see also Williams v. Fornett, 906 So.
2d 810, 812 (¶3) (Miss. Ct. App. 2004).
¶18.
In its order setting aside the default judgment and dismissing his initial action, the
Rankin County circuit judge acknowledged that “Plaintiff [Miller] ha[d] confessed the
Motion to Set Aside Entry of Default and Default Judgment[], in that Ann Myers, M.D., was
not properly served with process.” The order of dismissal also reflected that Miller did not
oppose dismissal.
In addition to noting these concessions, we point out that while
Mississippi Rule of Civil Procedure 4(d)(1)(A) provides for service on “an agent authorized
by appointment,” nothing in the record establishes Dr. Myers’s receptionist had actual or
apparent authority to accept process.
¶19.
In Williams v. Kilgore, 618 So. 2d 51, 56 (1992), the supreme court held that a
medical office manager’s acceptance of process on many previous occasions created apparent
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authority that the manager was an authorized agent for service of process. In Johnson v. Rao,
952 So. 2d 151, 155-56 (¶¶14-15) (Miss. 2007), the supreme court distinguished Williams,
as the facts did not support that Dr. Gutti Rao’s receptionist had authority to accept process.
Likewise, in Cooley v. Brawner, 881 So. 2d 300, 302-03 (¶15) (Miss. Ct. App. 2004), this
Court affirmed the dismissal of a medical-malpractice complaint for lack of proper service
by finding insufficient evidence that a “receptionist fully understood what was taking place,
or the nature of the act.”
¶20.
In this case, Miller wholly failed to support the record with information related to his
alleged service on Dr. Myers’s receptionist. Therefore, we are unable to even delve into the
facts to conduct such an inquiry. In the absence of sufficient factual information and in light
of Miller’s confession to the initial tribunal that he failed to properly serve Dr. Myers, we
must proceed as if service of process was insufficient.
¶21.
In considering his primary tolling argument, we next turn to the savings clause in
Mississippi Code Annotated section 15-1-69 (Rev. 2003). We find that it too lends no help
in salvaging Miller’s malpractice action. Section 15-1-69 provides:
If in any action, duly commenced within the time allowed, the writ shall be
abated, or the action otherwise avoided or defeated, by the death of any party
thereto, or for any matter of form, or if, after verdict for the plaintiff, the
judgment shall be arrested, or if a judgment for the plaintiff shall be reversed
on appeal, the plaintiff may commence a new action for the same cause, at any
time within one year after the abatement or other determination of the original
suit, or after reversal of the judgment therein, and his executor or administrator
may, in case of the plaintiff’s death, commence such new action, within the
said one year.
At one time, much confusion surrounded whether the savings clause preserved or extended
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the lives of claims beyond the original statute of limitations. The supreme court in Owens
v. Mai, 891 So. 2d 220, 222 (¶13) (Miss. 2005), sought to resolve related uncertainties by
holding that the “dismissal of a suit for failure to serve process is not a jurisdictional matter
for purposes of the savings statute.” In Owens, the circuit court dismissed the plaintiff’s
first action for failure to properly serve process. The plaintiff initiated an identical second
action before the first action had been dismissed, but after the limitations period had expired.
Our supreme court held that the savings statute in section 15-1-69 “was not designed to
extend the life of a cause of action beyond that of its original statute of limitation[s].” Id.
at 223 (¶13). Further, the court explained: “When a case is dismissed because a defendant
was not properly served within 120 days as mandated by M.R.C.P. 4(h), such a dismissal
is not a ‘matter of form’ that comes within the intent of [section] 15-1-69.” Id. Owens
instructs that: “While the filing of a complaint tolls the statute of limitations, if service is not
made upon the defendant within 120 days as required by M.R.C.P. 4(h), the limitations
period resumes running at the end of the 120 days.” Id. at 223 (¶14).
¶22.
Here, the statute of limitations began to run on March 24, 2003, the date Miller was
diagnosed with Guillian-Barre Syndrome and lupus. This same day he allegedly learned
these conditions may have been caused by the arthritis drug prescribed by Dr. Myers. On
August 31, 2004, Miller filed his first complaint in the Rankin County Circuit Court. This
complaint initially tolled the limitation period for 120 days. Id. See also M.R.C.P. 4(h).
After this 120-day period, on December 30, 2004, the limitations period resumed running,
with a new end date of July 23, 2005. Miller filed the Hinds County Circuit Court action
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against Dr. Myers on December 13, 2005, nearly five months too late. Thus, we find
Miller’s malpractice claim is untimely and that summary judgment was proper.
b.
¶23.
Pre-Suit Notice Under Section 15-1-36
Miller alternatively argues that sending of his pre-suit notice to Dr. Myers, before he
filed his initial complaint in Rankin County Circuit Court, tolled the two-year limitations
period. Mississippi Code Annotated section 15-1-36(15) (Rev. 2003) provides:
No action based upon the health care provider’s professional negligence may
be begun unless the defendant has been given at least sixty (60) days’ prior
written notice of the intention to begin the action. No particular form of
notice is required, but it shall notify the defendant of the legal basis of the
claim and the type of loss sustained, including with specificity the nature of
the injuries suffered. If the notice is served within sixty (60) days prior to the
expiration of the applicable statute of limitations, the time for the
commencement of the action shall be extended sixty (60) days from the
service of the notice for said health care providers and others. This
subsection shall not be applicable with respect to any defendant whose name
is unknown to the plaintiff at the time of filing the complaint and who is
identified therein by a fictitious name.
Miller is correct that “[t]he medical negligence statute does provide for a sixty-day tolling
period once notice has been given.” Arceo v. Tolliver, 19 So. 3d 67, 73 (¶24) (Miss. 2009)
(citing Miss. Code Ann. §15-1-36(15)).
Indeed, the two-year medical-malpractice
limitations period in Mississippi Code Annotated section 15-1-36(2) (Rev. 2003)
“effectively becomes a two-year and sixty[-]day statute of limitations” if the plaintiff serves
notice of intent to file a claim within the limitation period. Scaggs v. GPCH-GP, Inc., 931
So. 2d 1274, 1276 (¶9) (Miss. 2006). However, the supreme court has emphasized “that
statutory pre-suit-notice tolling provisions are contingent upon complying with the notice
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requirements.” Arceo, 19 So. 3d at 73 (¶24) (citations omitted).
¶24.
We are unable to examine whether Miller complied with section 15-1-36(15) as the
record is devoid of any written notice from Miller to Dr. Myers, prior to Miller filing the
Rankin County action. This insufficiency again falls on Miller’s shoulders. Nevertheless,
we find this omission immaterial. Even if Miller were spotted two years and sixty days from
his March 24, 2003, discovery of his medical conditions, the limitations period would have
expired well before December 13, 2005, the date he commenced the subsequent malpractice
action in Hinds County. Further, the circuit judge granted summary judgment based on
Miller’s failure to respond to her order to address Dr. Myers’s supplemental motions. These
motions concerned the untimeliness of his second lawsuit, not his failure to adhere to the
pre-suit strictures of section 15-1-36(15).
Thus, we need not conduct an additional
exhaustive savings clause analysis akin to that in Arceo. We do note though that “[b]y the
plain terms of the savings statute, its grace does not extend to save a second suit,” like the
subsequent Hinds County action. Arceo, 19 So. 3d at 76 (¶47). Pre-suit-notice issues aside,
where a civil suit is dismissed for any reason and the statute of limitations has expired,
dismissal with prejudice is warranted. Watters v. Stripling, 675 So. 2d 1242, 1242-44 (Miss.
1996); Tolliver v. Mladineo, 987 So. 2d 989, 996 (¶18) (Miss. Ct. App. 2007). Thus, we
find this issue lacks merit.
III.
¶25.
Summary-Judgment Hearing
Miller claims the circuit judge erred by not conducting a subsequent summary-
judgment hearing. While an initial hearing was held, we point out there is no explicit or
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implicit right to a hearing under Rule 56(c), Croke, 857 So. 2d at 777-78 (¶10), though other
rules may require a hearing. See Adams, 831 So. 2d at 1162-63 (¶24); M.R.C.P. 78. In
Adams, the supreme court found that due to the finality of summary judgments, the trial
court committed error by failing to hold a hearing. Adams, 831 So. 2d at 1163 (¶26). But
the court ultimately determined, if no resolved issues of material fact exist, the error is
harmless. Id.
¶26.
Correspondence issues aside, the crux of Miller’s argument is centered on his claim
that he was denied a hearing, albeit a subsequent one. Again, we note the trial court did
conduct a summary-judgment hearing on August 15, 2006. And during this hearing Miller
voiced his objections to summary judgment, apparently raising the issues addressed by Dr.
Myers in her supplemental filings. Further, we are aware of no mandate that a second
hearing be granted. Most importantly, Miller presents no additional material factual
evidence that if argued at a subsequent hearing would raise a legitimate issue about his
untimely second lawsuit. Indeed, when pressed during oral argument about what he would
offer at a second hearing, he proposed nothing new.
¶27.
We therefore find, based on the circumstances of this case, that any error relating to
the failure to conduct a second summary-judgment hearing was not reversible error.
Accordingly, we affirm the grant of summary judgment.
¶28. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE
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AND ROBERTS, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.
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