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Estate of Paulk v. Lott

Court of Appeals of Mississippi

January 31, 2017

ESTATE OF PATAELAIN PAULK APPELLANT
v.
DR. ROGER T. LOTT A/K/A DR. ROGER THOMAS LOTT, DOCTORS CLINIC AND PERRY COUNTY GENERAL HOSPITAL, LLC APPELLEES

          DATE OF JUDGMENT: 06/22/2015

         PERRY COUNTY CIRCUIT COURT, HON. ROBERT B. HELFRICH TRIAL JUDGE

          ATTORNEY FOR APPELLANT: ANNIE L. AMOS

          ATTORNEYS FOR APPELLEES: RICHARD O. BURSON SHIRLEY M. MOORE

         EN BANC.

          WILSON, J.

         ¶1. This medical malpractice case was filed in November 2012. In April 2015, the clerk and the defendants moved to dismiss for failure to prosecute. There had been no action in the case since the defendants filed their answer two years earlier. No response was filed to either motion to dismiss, and the circuit court dismissed the case for failure to prosecute. The circuit court did not abuse its discretion, so we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. The complaint filed in this case alleges the following: On November 23, 2010, Pataelain Paulk was a patient at Perry County General Hospital. Dr. Roger Lott and/or some agent(s) or employee(s) of the hospital "administered" Coumadin, a prescription medicine, to Paulk in tablet form. The tablet was still in a blister pack (i.e., packaging) when it was "administered" to Paulk. Paulk ingested the blister pack, which "lodged in her throat." Paulk had to undergo surgery and experienced pain and suffering as a result.

         ¶3. On November 21, 2012, Paulk filed a medical malpractice complaint in the Perry County Circuit Court. The complaint named Lott, the hospital, and the Doctors Clinic as defendants. Paulk was represented by counsel. The defendants were served on March 14, 2013, and filed an answer on April 12, 2013.

         ¶4. There was no further action in the case until April 8, 2015, when the circuit clerk filed a motion to dismiss the case for failure to prosecute. On April 13, 2015, the defendants also moved to dismiss for failure to prosecute. The defendants' motion stated that they had served discovery requests with their answer two years earlier but Paulk never provided responses.[1] Paulk did not respond to either motion. The docket reflects four subsequent hearing notices, and apparently a hearing was held, but it was not transcribed and made a part of the record on appeal.[2] On June 22, 2015, the circuit court granted the defendants' motion to dismiss for failure to prosecute pursuant to Mississippi Rule of Civil Procedure 41(b).

         ¶5. On July 22, 2015, new counsel entered an appearance for Paulk and filed a notice of appeal.[3] On November 12, 2015, the defendants filed a suggestion of death in this Court, which stated that Paulk had died on or about February 3, 2014. On November 30, 2015, counsel for Paulk filed a motion to substitute Paulk's estate as the plaintiff/appellant, which the Mississippi Supreme Court granted on January 7, 2016.[4] The estate's opening brief states that "[t]here is no allegation that [Paulk's] death was related to the underlying cause of action."

         DISCUSSION

         ¶6. Mississippi Rule of Civil Procedure 41(b) authorizes a court to dismiss an action "[f]or failure of the plaintiff to prosecute." "The power to dismiss for failure to prosecute is granted not only by Rule 41(b), but is part of a trial court's inherent authority and is necessary for the orderly expedition of justice and the court's control of its own docket." Cox v. Cox, 976 So.2d 869, 874 (¶13) (Miss. 2008) (quotation marks omitted). "Because the law favors a trial of the issues on the merits, a dismissal for lack of prosecution is employed reluctantly." Holder v. Orange Grove Med. Specialties P.A., 54 So.3d 192, 196 (¶16) (Miss. 2010) (quoting Miss. Dep't of Human Servs. v. Guidry, 830 So.2d 628, 632 (¶13) (Miss. 2002)). However, "this Court may uphold a Rule 41(b) dismissal when there is: (1) a record of dilatory or contumacious conduct by the plaintiff; and (2) a finding by this Court that lesser sanctions would not serve the interests of justice." Id. at 197 (ΒΆ18). Moreover, our standard of review is abuse-of-discretion; therefore, on appeal from an order dismissing a case for failure to prosecute, "we must affirm the trial judge ...


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