COURT FROM WHICH APPEALED: LINCOLN COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 08/08/2012. TRIAL JUDGE: HON. DAVID H. STRONG, JR.
FOR APPELLANT: ALFRED L. FELDER.
FOR APPELLEE: J. ROBERT RAMSAY.
LAMAR, JUSTICE. WALLER, C.J., RANDOLPH, P.J., PIERCE AND COLEMAN, JJ., CONCUR. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER, J. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., AND KING, J. CHANDLER, J., JOINS THIS OPINION. DICKINSON, P.J., AND KING, J., JOIN THIS OPINION.
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
¶1. In this medical-malpractice case, we must decide whether the Circuit Court of Lincoln County abused its discretion by dismissing Quizzie Manning's case with prejudice. We find that the circuit court did not abuse its discretion by dismissing the case with prejudice; therefore, we affirm the circuit court's judgment.
FACTS AND PROCEDURAL HISTORY
¶2. This medical-negligence case arises from Quizzie Manning's May 16, 2008, visit to King's Daughters Medical Center's (KDMC) emergency room. Manning alleges that she sustained injuries as a result of KDMC's negligence during that visit. On May 7, 2010, nearly two years after Manning's visit to KDMC and less than ten days before the statute of limitations ran on her claim, attorney Alfred Felder sent KDMC a letter on Manning's behalf giving KDMC notice of Manning's intent to sue, as required under Mississippi Code Section 15-1-36(15). On July 14, 2010, Manning, purportedly acting pro se, filed suit against KDMC and other parties. Apparently, Felder drafted Manning's complaint even though he did not sign it. As Manning filed her complaint pro se, she did not attach a certificate regarding consultation with an expert prior to filing suit, as required under Mississippi Code Section 11-1-58, because she was exempt from the requirement under Section 11-1-58(6).
¶3. The complaint was served on KDMC on November 10, 2010, 119 days after the complaint was filed and one day before Manning's time for service ran. The complaint included an address for Manning in Brookhaven, Mississippi. On November 18, 2010, KDMC filed its answer and propounded its initial discovery to Manning and served the documents on her by sending them to the address provided in the complaint via first-class mail. More than six months passed without a response from Manning. On June 27, 2011, KDMC filed its first motion to dismiss under Rule 41 of the Mississippi Rules of Civil Procedure or, alternatively, for summary judgment. KDMC noticed a hearing on its motion for August 1, 2011, and again served its motion and notice of hearing on Manning at the address provided in the complaint via U.S. Mail. However, on July 8, 2011, the documents KDMC sent to Manning were returned as " not deliverable as addressed, unable to forward." ¶ On July 11, 2011, KDMC wrote a letter to Felder and requested that he advise how Manning could be served. KDMC then attempted to have Manning served with its motion and notice of hearing via process server at the address provided in her complaint. However, the process server was unable to serve the documents. Counsel for KDMC represents that the process server was told by the residents at the address that Manning was not there and was currently in Georgia, and that their attorney, Al Felder, had advised them not to accept the documents or give the process server Manning's current address. Counsel for KDMC then called Felder in an attempt to obtain Manning's current address, but was not successful. Felder represented to KDMC's counsel that he was still reviewing the case and had not yet made a decision as to whether he was going to enter an official appearance. KDMC was unable to serve Manning with its motion or notice of hearing; therefore, it did not move forward with the hearing.
¶4. On July 5, 2012, a year later, KDMC filed a supplement to its motion to dismiss or, alternatively, for summary judgment, and renoticed a hearing on the motion for Monday, August 6, 2012. KDMC again served its motion and notice on Manning via U.S. Mail at the address she had provided in her complaint and also served the motion and notice on Felder. On Friday, August 3, 2012, Felder filed Manning's response to KDMC's motion. Felder officially entered an appearance in the case on Monday, August 6, 2012.
¶5. A hearing on KDMC's motion to dismiss or, alternatively, for summary judgment, was held on August 6, 2012. At the hearing, counsel for KDMC argued that Felder's actions were unconscionable and the suit should be dismissed as a sanction. Specifically, KDMC argued that Felder had Manning file a pro se complaint
because Felder could not comply with the requirements of Section 11-1-58, and that the suit had been " sitting still in the water for the last two years as a direct result of the acts of counsel in advising his client not to respond, not to accept, and not to advise where she can be found." KDMC did not argue that it was entitled to summary judgment in the case.
¶6. Felder argued that he did not represent Manning in the court until he made an entry of appearance because his " understanding of being represented by an attorney in a piece of litigation is that you're on the pleadings or you've made an entry of appearance, one or the other," and he had not entered an appearance at the time the complaint was filed. Felder further argued that, because Manning was not represented until he entered his appearance in the case, Manning had properly filed her complaint pro se and was not required to review her case with an expert witness prior to filing suit or to file the certificate contemplated by Section 11-1-58. As to why he had not entered an appearance until August 2012, Felder represented to the circuit court that he had experienced ongoing health problems since January 2010. Felder never denied that he had been involved with the case from the very beginning or that he had been advising Manning since at least the time he sent the notice letter on her behalf.
¶7. Felder represented that he did not remember whether he had spoken with Manning's relatives when the process server was attempting to serve KDMC's motion, but that normally he would advise someone not to accept papers that were not theirs. Felder also made an issue of the fact that KDMC never filed a motion to compel a response to its discovery and that the case had been on the docket for only two years, which he argued was not a long time, because many cases have been on the docket for two years or more. Felder argued that, given the totality of the circumstances, Manning's case should not be dismissed, and that, if he did something wrong, which he denied, he should be sanctioned personally.
¶8. During oral argument, the circuit court focused on whether or not it should dismiss the case based on Manning's behavior over the past two years, at one point asking Felder to give a " compelling reason" why the case should not be dismissed " based on Quizzie Manning's behavior over a two-year period." In its bench ruling, the circuit court found that the case involved the worst gamesmanship that the court had ever seen. The court found that Manning personally had been " playing games" and that it would have to decide if Manning's actions should result in the ultimate sanction of dismissal.
¶9. The court noted that Manning, a pro se plaintiff, seemed to have an unusual grasp of the time limits set by the rules, but yet did not realize that it was her duty to provide a mailing address at which she could receive documents related to her case. The court further noted that Manning had responded to KDMC's motion to dismiss or for summary judgment on the Friday before the Monday hearing, and had never responded to KDMC's discovery. The court also found the argument that KDMC was required to file a motion to compel to be without merit, in part because the court found Manning did not have any intention to respond to discovery that had been outstanding for two years and because KDMC had no way to serve the motion to compel.
¶10. The circuit court found that Manning was not represented by Felder during the two years the case sat on the docket. The court concluded that, while Section 11-1-58 did not require a pro se plaintiff to review her case with an expert witness
prior to filing suit or to file a certificate, " [t]his is an extreme example for two years of a pro se plaintiff who would not take part in the litigation process, did not give a valid address. That's at best. At worst, she took active measures through family members to avoid service of any type of document in this case." The court reasoned that the consideration the Legislature gave to pro se plaintiffs did not apply in this case because of her obvious actions to avoid participating in the litigation. Therefore, as a result of Manning's actions, the court ruled that her case would be dismissed with prejudice and KDMC would be granted summary judgment.
¶11. In its order, the court found that Manning had filed a pro se complaint but had made no effort to respond to discovery propounded to her for more than two years or to respond to KDMC's motion to dismiss or, alternatively, for summary judgment until the Friday afternoon before the Monday hearing. The court specifically found that:
[W]hile § 11-1-58 (requiring a certificate of consultation with a qualified expert) does not apply to a " Pro Se Plaintiff," the Legislature did not contemplate that an individual citizen be allowed to file a " Pro Se " Complaint (which does not require compliance with Miss. Code Ann. § 11-1-58), and thereafter, at best, not take part in the litigation process she initiated, and not supply the Court and the parties with a current, valid address for service of pleadings, etc. and/or at worst, having filed suit, take active measures through family members to avoid service of any type of document in this case, thereby maintaining this Pro Se Plaintiff's suit at a literal standstill for two years, until this date.
The circuit court held that, under the circumstances, the motion to dismiss under Rule 41(b) or, alternatively, for summary judgment should be granted and the case dismissed with prejudice. Manning now appeals from the circuit court's order.
¶12. Manning raises the following three issues on appeal:
(1) that the circuit court erred in granting KDMC's motion for summary judgment;
(2) that the circuit court erred in dismissing the case for failure to consult a physician ...