PATRICK O'NEAL SAVONTRELL MONTGOMERY, A MINOR, BY AND THROUGH PATRICK TOWNSEND, FATHER AND NEXT FRIEND, APPELLANT
MISSISSIPPI BAPTIST HEALTH SYSTEMS, APPELLEE
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 07/19/2012. TRIAL JUDGE: HON. WINSTON L. KIDD. TRIAL COURT DISPOSITION: CASE DISMISSED FOR FAILURE TO PROSECUTE.
FOR APPELLANT: JOHN R. REEVES, JOHN JUSTIN KING.
FOR APPELLEE: EUGENE RANDOLPH NAYLOR, REX MORRIS SHANNON III.
BEFORE LEE, C.J., BARNES AND ISHEE, JJ. LEE, C.J., IRVING, P.J., ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR. GRIFFIS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION.
¶1. A complaint was filed in Hinds County Circuit Court against Mississippi Baptist Health Systems (MBHS) on January 5, 2001, alleging negligence in the medical care of Patrick O'Neal Savontrell Montgomery, a minor. The injury allegedly occurred on December 30, 1997. In 2008, an order was entered by the Hinds County Chancery Court, awarding custody of Montgomery to his natural father, Patrick Townsend, and allowing Townsend to intervene as a party and represent Montgomery's interests in the circuit court suit. However, even though MBHS filed a motion to compel discovery on August 27, 2009, which the circuit court granted, no action of record was taken by Montgomery after 2008, except for a couple of responses to interrogatories.
¶2. Finally, on July 17, 2012, the case was called for a status update at a mandatory docket call on threat of dismissal for failure to prosecute. Since the email address of Montgomery's counsel was not included in the mass docket notice, counsel did not get the notice of the hearing and did not attend the docket call. Consequently, on August 8, 2012, the circuit judge, sua sponte, entered an order of dismissal for failure to prosecute under Mississippi Rule of Civil Procedure 41(b). The order stated:
Having noted that there has been no action of record in this matter for over two and one-half (2½ ) years and otherwise being fully advised in the premises, the Court finds that pursuant to Hensarling v. Holly, 972 So.2d 716 (Miss.Ct.App. 2007), it has authority to dismiss this action based upon Plaintiff's clear record of delay in the prosecution of this matter.
This order by the circuit court " operate[d] as an adjudication upon the merits." See M.R.C.P. 41(b) (Involuntary dismissal for failure to prosecute is " an adjudication upon the merits" unless otherwise specified.).
¶3. Montgomery filed a motion to reconsider on August 10, 2012, arguing that counsel would have attended the docket call had he received notice. Out of an abundance of caution, Montgomery then filed a notice of appeal with the Mississippi Supreme Court on September 7, 2012. A hearing on the motion to reconsider was held on September 10, 2012, at which time the circuit judge learned that Montgomery had filed his notice of appeal. As a result, the circuit judge concluded, in his November 30, 2012 order, that the filing of the notice of appeal with the supreme court deprived him of jurisdiction over the matter, and he denied Montgomery's motion, finding it " moot." However, the circuit judge did note that had " jurisdiction remained in th[e] court," he would have reinstated the matter.
¶4. Montgomery appeals, claiming that the circuit court abused its discretion in dismissing the case, and that it should have considered lesser sanctions. Upon review, we find that the circuit court erred in its determination that it did not have jurisdiction to rule on Montgomery's motion to reconsider. Therefore, we reverse the circuit ...