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SEPTEMBER 27, 1989




On June 28, 1985, Tiffany Michelle Cunningham, a minor, by and through her next friend, Patricia Cunningham (her mother), filed a suit in the Circuit Court of Jackson County against Dr. Ernest Mitchell. The suit alleged that Tiffany had sustained injuries and damages as a result of the doctor's negligence in preparing for and in the delivery of Tiffany. Tiffany sought $1,250,000.00 in damages. On July 24, 1985, Mitchell filed a Motion to Dismiss claiming that the complaint violated the rules of pleadings. Tiffany subsequently amended her complaint changing only the ad damnum from $1,250,000.00 to read" in excess of the jurisdictional limit "as was required by 11-1-59, Miss. Code Ann. (1972), as Amended. Mitchell then answered the complaint and amended complaint and cited several affirmative defenses. With his answer Mitchell filed Requests for Production of Documents and Interrogatories. Answers to these Requests were due on or before September 18, 1985, according to Rules 33 and 34, Miss. R. Civ. P.

Hurricane Elena hit the Mississippi Gulf Coast on September 4, 1985, and caused extensive damage to power and phone lines. Due to the storm Tiffany's counsel requested more time from Mitchell's counsel, and an extension was granted until September 30, 1985. Then on October 7, 1985, no answers to the interrogatories had been filed and the response to the request for production in effect said nothing, Mitchell filed a Motion to Compel Discovery and noticed the motion for hearing on October 15, 1985. Tiffany's counsel received notice of the motion on October 10, 1985, and since he was scheduled to be in Alabama on October 15, he filed a Motion for Continuance by mail. Tiffany's lawyer also called Mitchell's attorney and left word with his

 secretary of the conflict. Tiffany's counsel made no attempt to notify the trial court. Although Mitchell's counsel informed the trial court of Tiffany's attorney's schedule conflict, the court proceeded with the hearing and found that Tiffany's counsel had failed to respond to discovery and ordered him to fully respond within twenty (20) days or face dismissal with prejudice. The trial court also assessed Tiffany's attorney $200.00 in sanctions for failing to comply. The next day Tiffany's Motion for Continuance was received by the clerk and filed with the trial court.

 Following the entry of this Order Tiffany's attorney filed a Motion which asked the trial court to vacate the order on the grounds that; (1) counsel was in trial on October 15, 1985; (2) that Mitchell's motion was not properly and adequately noticed; (3) that a Motion for a Continuance had been filed prior to the hearing on October 15, 1985; and (4) that Mitchell's counsel was fully aware of Cunningham's counsel's predicament when the Motion to Compel was brought for a hearing.

 This motion was heard on November 6, 1985, at which time Tiffany's counsel assured the court that he had filed answers to the interrogatories pursuant to the October order but he could not explain why neither the court nor opposing counsel had not received the answers. Tiffany's counsel further stated that the answers were mailed with the answers to the requests for production of documents.

 The trial judge found that Tiffany's counsel's excuse for missing the October 15, 1985, hearing was insufficient to stay the hearing. The trial court further found that the filing of a Motion for Continuance was insufficient to justify a stay on the hearing on the Motion to Compel. Since Tiffany's counsel stated that he had a signed copy of the answers to the interrogatories, that had allegedly already been filed in Mobile, the trial court ordered counsel to go get them and bring them to the court. The trial court reserved the ruling on the Motion for Relief from the Order until it had seen the answers to the interrogatories. The next day Tiffany's counsel filed the answers to the interrogatories. These answers were not signed under oath and they were dated November 7, 1985, although counsel had represented to the trial court that they were signed and mailed along with the answer to Request for Production of Documents, which was dated September 30, 1985, and filed on October 7, 1985.

 Thereupon the trial court found the answers to the interrogatories to be insufficient and in violation of the Mississippi Rules of Civil Procedure and that Tiffany's counsel had failed to comply with the court's orders and failed to show

 any ability to comply with discovery. Therefore, the trial judge dismissed the cause with prejudice.

 On December 6, 1985, Tiffany's attorney filed a Motion for Relief of Judgment which was overruled by the trial court on January 3, 1986. Tiffany's attorney then filed several notices of appeal including a notice filed on November 18, 1987.

 We are first asked to determine if the brief filed on behalf of Tiffany Cunningham is moot. Dr. Mitchell claims that our prior opinion in Cunningham v. Mitchell, 535 So. 2d 589 (Miss. 1988), (hereinafter referred to as Cunningham I) arose from the same set of facts as this case (hereinafter referred to as Cunningham II). To answer this question the holding in Cunningham I must be examined.

 In Cunningham I Tiffany was appealing the rulings made by the trial court dismissing her complaint with prejudice. This was not an appeal on the merits but rather one as to which of the three notices of appeal filed with this Court were valid. Two of the notices of appeal, the one filed on December 6, 1985, and the one filed on September 9, 1986, were disposed of by this Court's orders of August 20, 1986, and October 15, 1986. The third notice of appeal, filed November 18, 1987, was the only notice discussed in Cunningham I.

 As a result of our ruling in Cunningham I the only issue that presently may be appealed is whether the trial court abused its discretion in denying Tiffany Cunningham's Motion For Relief of Judgment made on December 6, 1985.

 The next step in determining this issue is whether or not the motion of December 6, 1985, was filed under Rule 59, Miss. R. Civ. P., New Trials, or Rule 60 (b), Miss. R. Civ. P., Relief From Judgment or Order. Cunningham I declined to decide this issue. 535 So. 2d at 592, n.6. If this was a motion filed under Rule 59 for a new trial, then we have no jurisdiction as the motion was filed ...

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