NELSON v. MERCY HEALTH CENTER, INC.

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NELSON v. MERCY HEALTH CENTER, INC.
2010 OK CIV APP 101
Case Number: 107822
Decided: 05/11/2010
Mandate Issued: 10/08/2010
DIVISION IV
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION IV

THOMAS R. NELSON, Plaintiff/Appellant,
v.
MERCY HEALTH CENTER, INC., an Oklahoma corporation, Defendant/Appellee,
and
ROBERT RICKETSON, M.D., and EDMOND SPINE CENTER, INC., an Oklahoma corporation, Defendants.

APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA

HONORABLE TWYLA MASON GRAY, TRIAL JUDGE

REVERSED AND REMANDED WITH DIRECTIONS

Ben T. Lampkin, Justin W. Perry, BEN LAMPKIN & ASSOCIATES, Edmond, Oklahoma, for Plaintiff/Appellant
Michael J. Heron, Patrick R.B. Sherry, HERON, SWEET, FOX & TROUT, P.C., Edmond, Oklahoma, for Defendant/Appellee

DOUG GABBARD II, PRESIDING JUDGE:

¶1 Plaintiff, Thomas R. Nelson, appeals the District Court Rule 9(b) dismissal of his malpractice suit against Defendant, Mercy Health Center, Inc., an Oklahoma corporation. We reverse and remand with directions.

BACKGROUND

¶2 Plaintiff filed suit on December 8, 1999, against Dr. Robert Ricketson, Edmond Spine Center, Inc., and Mercy Health Center, Inc. (Mercy). He alleged that he was injured during a surgery performed by Dr. Ricketson at Mercy exactly two years earlier. Plaintiff failed to issue summons or obtain a waiver. On April 13, 2001, Judge Carolyn Ricks dismissed the action pursuant to District Court Rule 9(a).1

¶3 On April 15, 2002, Plaintiff timely refiled his petition.2 On September 26, 2002, Plaintiff mistakenly issued summons in the original, now-dismissed lawsuit, instead of the pending, refiled lawsuit. On November 13, 2002, Dr. Ricketson filed a special appearance and a motion to dismiss. Six days later, Plaintiff filed an application nunc pro tunc to correct the case number on the summons issued in September to reflect the pending, refiled lawsuit.3 However, on December 20, 2002, Judge Ricks dismissed the refiled action pursuant to District Court Rule 9(b).

¶4 Thereafter, Plaintiff filed a motion to vacate, which Judge Ricks granted. Plaintiff dismissed Dr. Ricketson and Edmond Spine Center from his lawsuit, with prejudice. Plaintiff filed a motion for default judgment against Mercy. Judge Patricia Parrish granted the motion, and later set the amount of Plaintiff's damages at $437,000.4

¶5 After Mercy was served with the journal entry of judgment, it filed a motion to vacate for improper service, alleging that Plaintiff had failed to serve Mercy's registered service agent, The Corporation Company. The trial court granted the motion to vacate and reinstated the case. Mercy then filed a motion to dismiss pursuant to what is now 12 O.S. Supp. 2009 § 1083 (failure to prosecute an action for a period of one year) and District Court Rule 9(b) (failure to diligently prosecute an action). On July 23, 2008, the trial court dismissed the action.

¶6 Plaintiff appealed. In Appeal No. 106,216, another division of the Court of Civil Appeals (COCA) reversed the dismissal, holding: (1) § 1083 did not authorize a dismissal because there had been action in the case within one year immediately prior to the filing of the motion to dismiss; and (2) a dismissal under Rule 9(b) is not authorized unless a plaintiff fails to show good cause why his case should not be dismissed and the defendant is prejudiced by the plaintiff's failure to prosecute; and the trial court's order was silent regarding both issues.

¶7 On remand, Mercy filed a second motion to dismiss pursuant to District Court Rule 9(b), asserting that Plaintiff had not shown good cause for the delay in service and that Mercy had been prejudiced. Plaintiff responded that if the COCA remand had intended to allow Mercy another opportunity to present a motion to dismiss, it would have said so, and that Mercy had failed to show any prejudice.5

¶8 On November 9, 2009, the trial court dismissed the case, finding:

(1) Plaintiff provided no basis for the delay in prosecution. As such, he has failed to show good cause why his case should not be dismissed.

2) In its motion Defendant demonstrated sufficient prejudice from the delay in prosecution of this matter.

¶9 Plaintiff appeals.

STANDARD OF REVIEW

¶10 In granting a dismissal, a court should be mindful that public policy encourages the disposition of actions on their merits. Fischer v. Baptist Health Care of Okla.,

¶11 We review the granting of dismissal pursuant to District Court Rule 9 for abuse of discretion. Morris v. City of Okla. City,

ANALYSIS

¶12 District Court Rule 9(b) provides:

Where an action is not diligently prosecuted, the court may require the plaintiff to show why the action should not be dismissed. If the plaintiff does not show good cause why the action should not be dismissed, the court shall dismiss the action without prejudice. A court shall dismiss actions in which no action has been taken for a year as provided in

¶13 In Bicknell v. Randolph, 2005 OK CIVAPP 7,

¶14 In this case, Plaintiff did not attempt to show good cause why his case should not be dismissed. He presented no explanation why summons has still not been properly issued and served upon Mercy even though more than ten years have passed since his original petition was filed. Nevertheless, as noted above, the Supreme Court has long held that the mere passage of time is not alone dispositive of whether an action should be dismissed, and prejudice to the defendant must also be considered. See also Baker v. Deichman,

¶15 On the issue of actual prejudice, Mercy has failed to present any proof. Instead, Mercy recites the long history of the case and then states:

The full measure of this prejudice cannot be determined until discovery is attempted. For example, the lack of memory of all relevant witnesses cannot be determined conclusively until they are deposed. Nevertheless, the facts before this Court prove prejudice by any reasonable standard.

In Buchanon, the Supreme Court rejected a similar claim where the defendants asserted that, if the case was allowed to proceed, the plaintiffs could not give assurances that their future medical conditions would be sufficiently healthy to allow their participation in discovery and, therefore, a trial might be delayed "until some distant undetermined point in the future, and Defendants would be prejudiced by a potentially unresolved claim." Buchanon at ¶ 38, 89 P.3d at 1045. The Buchanon Court held that the mere possibility of prejudice is not enough to sustain the granting of a Rule 9(b) dismissal; a showing of actual prejudice is normally required.

¶16 Under

CONCLUSION

¶16 While Plaintiff's conduct was clearly dilatory, we hold that the trial court's dismissal was an abuse of discretion because Mercy failed to show any actual prejudice. For this reason, the order of dismissal is hereby reversed and remanded with directions that this cause be reinstated and that Plaintiff be directed to issue and effect proper service of summons upon Mercy within 30 days of said reinstatement.

¶17 REVERSED AND REMANDED WITH DIRECTIONS.

GOODMAN, J., concurs, and RAPP, J., not participating.

FOOTNOTES