Gwen Jenkins v. Frank Tucker, M.D.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CA-01273-COA
GWEN JENKINS, ON BEHALF OF THE
WRONGFUL DEATH BENEFICIARIES OF
THOMAS JENKINS, DECEASED
APPELLANT
v.
FRANK TUCKER, M.D. AND JEFF ANDERSON
REGIONAL MEMORIAL CENTER D/B/A
ANDERSON INFIRMARY BENEVOLENT
CORPORATION ASSOCIATION
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEES
6/20/2007
HON. LESTER F. WILLIAMSON, JR.
LAUDERDALE COUNTY CIRCUIT COURT
DON H. EVANS
KENNETH CHARLES MILLER
CHRIS J. WALKER
ROMNEY HASTINGS ENTREKIN
JOHN LEWIS HINKLE
BRIDGETTE TRENETTE THOMAS
PEELER GRAYSON LACEY
CIVIL - WRONGFUL DEATH
DISMISSED FOR WANT OF
PROSECUTION
AFFIRMED: 2/17/2009
BEFORE MYERS, P.J., ISHEE AND CARLTON, JJ.
MYERS, P.J., FOR THE COURT:
¶1.
Gwen Jenkins (Jenkins), on behalf of the wrongful death beneficiaries of Thomas
Jenkins, filed suit against Jeff Anderson Regional Memorial Center (Anderson Hospital) and
Dr. Frank Tucker. The complaint alleged that on February 20, 1999, Thomas was admitted
to Anderson Hospital with three gunshot wounds. He ultimately died on December 20, 1999,
allegedly as a result of the defendants’ failure to recognize and treat certain complications
from his initial injuries. Approximately five years after the complaint was filed, the trial
court dismissed the suit without prejudice for want of prosecution, and Jenkins appeals from
that judgment. Finding no error, we affirm.
FACTS
¶2.
The procedural history of this case, being particularly important to the issues on
appeal, will be recited in detail.
¶3.
Jenkins, represented by attorney Don Evans, filed the complaint on February 20, 2001.
Dr. Tucker filed his answer on March 20, 2001, and Anderson Hospital filed its answer two
days later on March 22.
¶4.
At the time Jenkins filed her complaint, she also propounded discovery requests to the
defendants. Dr. Tucker responded to Jenkins’s discovery requests on March 23, 2001, and
Anderson Hospital responded on August 24, 2001. Although Jenkins responded to Dr.
Tucker’s discovery requests on June 26, 2001, Jenkins did not respond to Anderson
Hospital’s discovery requests propounded on August 30, 2001. On October 5, 2001, several
subpoenas duces tecum were issued on behalf of Dr. Tucker for Thomas’s medical records,
addressed to several medical providers. The returns on the subpoenas were filed on October
18, 2001.
¶5.
There were no other actions of record until May 12, 2003, when Anderson Hospital
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filed a “Motion to Stay Proceedings and Other Relief” based on the insolvency of its
insurance carrier. The motion requested a stay of at least ninety days or until further order
of the court. Jenkins did not file a response, and the trial court did not enter an order on the
motion.
¶6.
On June 23, 2003, Anderson Hospital filed a second motion to stay, stating that its
insurance provider had been placed in liquidation on June 20, 2003, and was, therefore,
subject to the Mississippi Insurance Guaranty Act. See Miss. Code Ann. §§ 83-23-101 to 137 (Rev. 1999). This motion sought an order to stay the action for an initial period of six
months from the date of the liquidation order or until December 20, 2003. Again, Jenkins
did not file a response, and the trial court did not enter an order on this second motion.
¶7.
No further actions of record were taken prior to March 24, 2005, when the Lauderdale
County Circuit Clerk filed a motion to dismiss for want of prosecution. Jenkins’s counsel,
Evans, responded to the clerk’s motion with a facsimile letter requesting that the clerk not
dismiss. The letter stated that Jenkins had not pursued any action in the case for a time
because the insurance carrier for Anderson Hospital was in receivership and ultimately
liquidation. The letter acknowledged that counsel for Anderson Hospital had now informed
Jenkins that the grounds for a stay no longer existed. Evans asserted that he was working
with defense counsel to set depositions of the parties.
¶8.
No action of record was taken by Jenkins following the letter. On July 13, 2006, the
circuit clerk filed a second motion to dismiss for want of prosecution. On July 19, 2006,
Jenkins filed a motion for trial setting and an appearance by another attorney, Kenneth C.
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Miller.
¶9.
On August 31, 2006, Anderson Hospital filed a motion to dismiss under Mississippi
Rule of Civil Procedure 41(b), which was joined by Dr. Tucker on September 18, 2006. The
motion asserted that Jenkins had failed to prosecute the case since serving discovery on Dr.
Tucker on July 27, 2001, a delay of approximately sixty-one months. The motion also
asserted that Anderson Hospital propounded interrogatories and requests for production of
documents to Jenkins on August 30, 2001, but it had not received a response after five years.
Jenkins responded, asserting that she had not prosecuted the action because of Anderson
Hospital’s motions to stay, and from June 22, 2003, until March 2005, she was unaware that
the stay had been lifted. Jenkins also stated that the delay following the first clerk’s motion
to dismiss was caused by Anderson Hospital’s failure to respond to a letter requesting
deposition dates for three hospital employees. Jenkins conceded that she had not answered
the discovery requests, but she argued that this should be excused because the defendants
never filed motions to compel.
¶10.
The trial court, in a fifteen-page memorandum opinion, found that Jenkins repeatedly
delayed prosecution. The court found dilatory conduct in Jenkins’s failure to investigate the
existence of continuing grounds for a stay, Jenkins’s inaction for fourteen months between
the first and second clerk’s motion, and Jenkins’s failure to respond to discovery requests.
It also determined that further lesser sanctions would be futile and concluded that no lesser
sanction could remedy the prejudice suffered by the defendants after such a lengthy delay.
Accordingly, the trial court granted the defendants’ motion and dismissed Jenkins’s suit
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without prejudice. This appeal followed.
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
DISMISSING THE CASE FOR WANT OF PROSECUTION.
¶11.
Trial courts have the inherent authority to dismiss cases for lack of prosecution as a
means of controlling the court’s docket and ensuring the “orderly expedition of justice.”
Watson v. Lillard, 493 So. 2d 1277, 1278 (Miss. 1986). Rule 41(b) of the Mississippi Rules
of Civil Procedure provides for dismissal of a case upon the motion of the defendant for
failure to prosecute. On appeal, this Court reviews such a decision for an abuse of discretion.
Cox v. Cox, 976 So. 2d 869, 874 (¶11) (Miss. 2008).
¶12.
Dismissals for want of prosecution should be employed reluctantly, and while “[t]here
is no set time limit for the prosecution of an action . . . where the record shows that a plaintiff
has been guilty of dilatory or contumacious conduct, or has repeatedly disregarded the
procedural directives of the court, such a dismissal is likely to be upheld.” Vosbein v.
Bellias, 866 So. 2d 489, 493 (¶6) (Miss. Ct. App. 2004) (quoting Watson, 493 So. 2d at
1279).
¶13.
The supreme court has propounded three factors for an appellate court to consider in
reviewing dismissals under Rule 41(b): (1) whether the conduct of the plaintiff can be
considered contumacious or dilatory; (2) whether lesser sanctions could be applied; and (3)
other aggravating factors. Am. Tel. and Tel. Co. v. Days Inn of Winona, 720 So. 2d 178, 18182 (¶¶14, 17, 19) (Miss. 1998). While contumacious or dilatory conduct may be sufficient
to support affirmance, factors other than delay are typically present when a dismissal with
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prejudice under Rule 41(b) is upheld. Cox, 976 So. 2d at 874-75 (¶¶16-17).
(1) Contumacious or Dilatory Conduct
¶14.
The trial court found a clear record of delay, and such appears to be evident from the
record. Jenkins undertook no action of record from approximately June 2001 until the clerk’s
first motion to dismiss, which was filed on March 24, 2005. Other than the facsimile letter
to the circuit clerk requesting that the cause not be dismissed, Jenkins took no other action
of record prior to the clerk’s second motion to dismiss filed on July 13, 2006. Jenkins also
failed to respond to discovery requests for a period of more than five years.
¶15.
Jenkins concedes that there has been substantial delay, but she argues the trial court
erred in attributing it to the plaintiff or in not finding it excusable. The supreme court has
suggested that delay by the plaintiff, under some circumstances, may be excusable. See, e.g.,
Cox, 976 So. 2d at 875 (¶¶20-21) (discussing efforts to substitute counsel and settlement
negotiations as examples of potentially excusable delay).
¶16.
In particular, Jenkins argues that the delay was primarily a result of Anderson
Hospital’s motions to stay. The trial court acknowledged this argument, but it noted, and we
agree, that only a small part of the delay can be excused as a result. This cannot explain the
approximately twenty-month delay by Jenkins prior to the first motion to stay being sought.
It also does not excuse Jenkins’s apparent lack of vigilance in failing to reply to the motion
for a stay or even inquire of the continuing need for a stay, prior to the first clerk’s motion
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to dismiss being filed on March 24, 2005.1
¶17.
Jenkins also asserts that the delay over the fourteen months between the first and
second clerk’s motions to dismiss is attributable to Anderson Hospital’s failure to reply to
the letter sent by her attorney requesting deposition dates.
However, this Court has
considered this argument before and found it meritless:
At the hearing to set aside the dismissal, the [plaintiffs] stated that they had
continued to attempt to schedule the deposition with the remaining physician.
They contended that they asked opposing counsel to schedule the deposition.
While they understood they could have subpoenaed the physician to be
deposed, they chose to attempt to schedule the deposition without taking such
an action. One year later, when [the defendant’s] motion to dismiss was filed,
essentially nothing had occurred in the case. This can clearly be seen as
dilatory conduct.
Hasty v. Namihira, 986 So. 2d 1036, 1040 (¶17) (Miss. Ct. App. 2008).
¶18.
Jenkins also argues that after her first attorney associated Miller, she began
prosecuting the case. She argues that it would be inequitable to allow the defendants to sit
idle and only seek to dismiss for want of prosecution in response to renewed activity from
the plaintiff. The supreme court, however, has recently rejected this argument. See Cox, 976
So. 2d at 879-80 (¶¶47-51) (holding that a trial court retains discretion to dismiss prior to
consideration of the merits of a case because “the responsibility to prosecute a case rests with
the plaintiff, not the defendant”).
¶19.
Finally, Jenkins argues that the trial court erred in finding culpable delay in her failure
1
The second motion for stay was filed by Anderson Hospital on June 20, 2003,
approximately twenty-one months before the first clerk’s motion to dismiss.
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to respond to Anderson Hospital’s discovery requests prior to the filing of the defendants’
motion to dismiss, approximately five years after the requests were made. Jenkins asserts
that Anderson Hospital cannot now complain because it never sought to compel discovery.
We do not see this as excusing Jenkins’s failure to answer, especially as Jenkins also argues
that she had already addressed the substance of Anderson Hospital’s request in her replies
to Dr. Tucker’s discovery requests in the first few months of litigation. If this is the case, no
explanation was offered as to why the same information could not have been provided to the
other defendant in a timely manner.
¶20.
Considering the record before us, we find that the trial court did not abuse its
discretion in finding a clear record of delay.
(2) Lesser Sanctions
¶21.
Lesser sanctions may include fines, costs, or damages against the plaintiff or her
counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice,
and explicit warnings. Days Inn of Winona, 720 So. 2d at 181-82 (¶17) (citing Wallace v.
Jones, 572 So. 2d 371, 377 (Miss. 1990)). A clerk’s notice of dismissal, being an explicit
warning, is a lesser sanction. Hasty, 986 So. 2d at 1041 (¶18). An appellate court should be
less likely to uphold a dismissal where there is no indication in the record that the trial court
considered lesser sanctions. Cox, 976 So. 2d at 874-75 (¶¶16-17). We will not presume that
lesser sanctions were considered unless there is some indication that the trial court considered
them; that lesser sanctions were argued before is sufficient. Id. at 876 n.10. Lesser sanctions
will not suffice where they cannot cure prejudice suffered by a defendant from the delay. Id.
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at 876 (¶26).
¶22.
Jenkins argues that the trial court did not consider alternative sanctions, but it is
apparent from the record that lesser sanctions were not only argued before the trial court, but
they were expressly considered and rejected in its memorandum opinion.
¶23.
Jenkins also argues that the trial court erred in its finding that lesser sanctions would
be futile, but this argument is without merit as well. The trial court found that Jenkins had
essentially ignored the first clerk’s motion to dismiss for the fourteen months prior to the
clerk’s second motion. It also found a clear history of delay stretching back more than five
years and some presumed prejudice to the defendants that could not be cured by lesser
sanctions. Under such circumstances, we cannot say the trial court abused its discretion in
finding further lesser sanctions to be futile.
(3) Other Aggravating Factors
¶24.
Aggravating factors bolster a case for dismissal, but they are not required even when
dismissal is with prejudice. Hasty, 986 So. 2d at 1041 (¶20) (citing Hine v. Anchor Lake
Prop. Owners Ass’n, 911 So. 2d 1001, 1006 (¶22) (Miss. Ct. App. 2005)). Aggravating
factors may include: “(1) whether the delay was caused by the party as opposed to his
counsel[;] (2) whether there was actual prejudice to the opposing party[;] and (3) whether the
delay was an intentional attempt to abuse the judicial process.” Id. at 1041 (¶19) (citing Days
Inn of Winona, 720 So. 2d at 182 (¶19)).
¶25.
There is no evidence in the record that Jenkins, as opposed to her attorney, was
personally responsible for the delay. Nonetheless, the supreme court has stated that a party
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must bear some responsibility for a long delay in which no substantive action is taken. Cox,
976 So. 2d at 877 (¶31). Although the five years of delay in the instant case is significantly
less than the almost nine years the supreme court considered in Cox, we find that Jenkins
herself must bear some modicum of responsibility for the delay in this case.
¶26.
Similarly, although there was no evidence of actual prejudice to the defendants,
prejudice may also be presumed for unreasonable delay; but the preference for a decision on
the merits must be weighed against any such presumption. Id. at 879 (¶44). A trial court
may, therefore, decide to excuse a plaintiff’s lack of diligence in the absence of proof of any
actual prejudice to the defendant. Id.
¶27.
The defendants argued that memories would have faded in the seven years since the
incident, but they did not put on any proof to that effect in support of their motion to dismiss.
Nonetheless, we have held that similar delays entitle defendants to some presumption of
prejudice, even where most of the fact witnesses had been timely deposed. See Hasty, 986
So. 2d at 1041 (¶20). Accordingly, we find that the trial court did not err in finding some
presumed prejudice to the defendants.
(4) Conclusion
¶28.
Considering the clear record of delay, the trial court’s consideration and rejection of
lesser sanctions, and the presence of aggravating factors, we find that the trial court did not
abuse its discretion in dismissing the suit for want of prosecution.
¶29. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY
IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
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KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE AND CARLTON,
JJ., CONCUR. ROBERTS, J., NOT PARTICIPATING.
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