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Havard v. Sumrall

Court of Appeals of Mississippi

November 7, 2017

JAMES D. HAVARD AND WIFE, MARGARET HAVARD APPELLANTS
v.
TANELLE SUMRALL AND AKESO GROUP LLC APPELLEES

          DATE OF JUDGMENT: 10/31/2016

         LAMAR COUNTY CIRCUIT COURT HON. PRENTISS GREENE HARRELL

          ATTORNEYS FOR APPELLANTS: S. WAYNE EASTERLING GERALD ALAN DICKERSON

          ATTORNEYS FOR APPELLEES: DOUGLAS G. MERCIER JESSICA LEIGH DILMORE

          BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.

          CARLTON, J.

         ¶1. James and Margaret Havard filed a medical-malpractice complaint against Tanelle Sumrall. The Havards then amended their complaint to include Sumrall's employer, the Akeso Group. Sumrall moved to dismiss the Havards' claim against her for failure to prosecute. See M.R.C.P. 41(b). The Lamar County Circuit Court granted Sumrall's motion to dismiss, and the Havards appeal. In response, Sumrall asserts this Court lacks jurisdiction. Upon review, we find we possess jurisdiction over the matter. We further find no abuse of discretion in the circuit court's dismissal of the Havards' complaint against Sumrall for failure to prosecute.[1] We therefore affirm the circuit court's judgment.

         ¶2. After addressing the relevant procedural history and facts of this litigation, we will resolve the question of jurisdiction. We will then address whether the circuit court abused its discretion by dismissing the Havards' complaint against Sumrall for failure to prosecute.

         FACTS

         ¶3. The Havards previously attempted an unsuccessful appeal of the circuit court's dismissal of their claim against Sumrall, one of the defendants named in their medical-malpractice complaint. Havard v. Sumrall, 194 So. 3d 188');">194 So. 3d 188, 189 (¶1) (Miss. Ct. App. 2016). In our opinion dismissing the prior attempted appeal as interlocutory, we summarized the facts pertinent to Sumrall as follows:

On November 29, 2012, the Havards filed an initial complaint alleging medical negligence against Sumrall, a nurse anesthetist. The lawsuit stemmed from an alleged incident in November 2010 at a hospital in Hattiesburg, Mississippi, where James was scheduled for back surgery. Prior to the surgeon's entering the operating room, Sumrall injected James with the drug epinephrine, which was contra-indicated, under the mistaken impression that the syringe contained another drug for anesthesia. The syringe had actually been used in another procedure using epinephrine. As a result of the injection of epinephrine, James suffered an immediate heart attack in the operating room.
In January 2013, an amended complaint was filed adding Sumrall's employer, the Akeso Group, as a defendant. A summons was issued to its president, John S. Daniel, in Memphis, Tennessee, on January 7, 2013, and delivered to the company via certified mail on January 10. On January [14], 2013, Sumrall filed her answer to the amended complaint, claiming the injuries suffered by James were proximately caused by the acts or omissions of third parties. The docket indicates no activity on the case occurred from January 23, 2013, until September 30, 2014, when the circuit court sent a trial-calendar notice to the parties.
In October 2014, Sumrall filed a motion to dismiss for failure to prosecute under [Rule] 41(b). On November 10, 2014, the circuit court sent the parties a notice presetting trial for July 2015. In December 2014, the Havards propounded discovery to Sumrall.
On January 5, 2015, the Havards responded to Sumrall's motion to dismiss. On this same day a hearing on the motion occurred. Lead counsel for the Havards explained that he had had serious medical issues in April 2013, subsequent surgery, and a substantial rehabilitation period, which delayed activity in the case, but he did not feel Sumrall was prejudiced by this delay. Counsel for Sumrall argued that nearly two years had passed with no activity by the Havards-they could have filed a motion for additional time, but did nothing. At the hearing, no mention was made of the Akeso Group. The trial judge dismissed the claim against Sumrall for the Havards' failure to prosecute. However, the judgment did not dismiss the Havards' claims against the Akeso Group. The Havards appealed, claiming the dismissal against Sumrall was an abuse of discretion.

Id. at 189-90 (¶¶2-5) (internal footnotes omitted and emphasis added).

         ¶4. In dismissing the Havards' attempted appeal for lack of jurisdiction, we found the circuit court's dismissal of their claim against Sumrall constituted an interlocutory, rather ...


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