IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-CA-01585-COA
CONSOLIDATED WITH
NO. 2015-CA-00138-COA
JAMES D. HAVARD AND WIFE, MARGARET APPELLANTS
HAVARD
v.
TANELLE SUMRALL AND AKESO GROUP APPELLEES
LLC
DATE OF JUDGMENT: 10/31/2016
TRIAL JUDGE: HON. PRENTISS GREENE HARRELL
COURT FROM WHICH APPEALED: LAMAR COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: S. WAYNE EASTERLING
GERALD ALAN DICKERSON
ATTORNEYS FOR APPELLEES: DOUGLAS G. MERCIER
JESSICA LEIGH DILMORE
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
DISPOSITION: AFFIRMED - 11/07/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
CARLTON, J., FOR THE COURT:
¶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, 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],
1
See Holder v. Orange Grove Med. Specialties P.A., 54 So. 3d 192, 196 (¶16) (Miss.
2010) (applying an abuse-of-discretion standard of review to a Rule 41(b) dismissal).
2
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
than final, judgment. In so finding, we stated the following:
[T]he amended complaint named two defendants: Sumrall and the Akeso
Group. The last appearance the Akeso Group made was on January 23, 2013,
with the acknowledgment of service of the amended complaint. Even though
it has never answered the complaint or appeared in the action, the Akeso
Group is still a party to the action, and the Havards admit as much in their
appellate reply brief. The trial court dismissed Sumrall from the action, but the
order did not terminate the action against the Akeso Group, whose claims have
not been adjudicated and thus are still pending at the trial-court level. Finally,
the trial court’s order was not certified as a final judgment under [Mississippi
Rules of Civil Procedure] 54(b). Without the entry of a Rule 54(b) certificate,
3
a trial court order which disposes of less than all of the claims against all of the
parties in a multiple party or multiple claim action, is interlocutory. Thus, the
order is interlocutory and not appealable.
Id. at 190-91 (¶7) (internal citations, quotations, and footnote omitted).
¶5. After the dismissal of their attempted appeal, the Havards successfully sought a
default judgment against the Akeso Group, the remaining defendant in their medical-
malpractice lawsuit. The circuit clerk made the entry of default against the Akeso Group on
July 11, 2016. See M.R.C.P. 55(a). Following a hearing, the circuit court’s judgment of
default and damages against the Akeso Group was entered on October 31, 2016, and stamped
as filed on November 1, 2016. See M.R.C.P. 55(b). The circuit court found the Akeso
Group had failed to file an answer or enter an appearance after receiving proper service of
process. Based on the hearing testimony and evidence, the circuit court held James had
sustained $500,000 in non-economic damages, $250,000 in medical expenses, and $520,000
in lost income over eight years. The circuit court therefore awarded the Havards a
$1,270,000 judgment against the Akeso Group.
¶6. On November 7, 2016, the Havards filed their second notice of appeal and again
asserted that the circuit court erred in its January 2015 judgment when it dismissed their
complaint against Sumrall for failure to prosecute.2
DISCUSSION
I. Jurisdiction
¶7. The only issue the Havards raise on appeal is whether an abuse of discretion occurred
2
The record reflects a copy of the Havards’ notice of appeal from the January 2015
judgment of dismissal was mailed to the Akeso Group in accordance with the Mississippi
Rules of Appellate Procedure.
4
when, by its January 2015 “Judgment and Order of Dismissal,” the circuit court dismissed
their lawsuit against Sumrall for failure to prosecute. In response, Sumrall contends this
Court still lacks jurisdiction over the matter.3 According to Sumrall, the circuit court’s
January 2015 “Judgment and Order of Dismissal” fails to constitute a final judgment because
the circuit court never certified it as such under Rule 54(b) and because the judgment failed
to adjudicate the merits of the Havards’ claims against both her and the Akeso Group.
¶8. As Sumrall asserts, the record shows the circuit court’s November 1, 2016 judgment
against the Akeso Group set forth no identification as a certified final judgment. See
M.R.C.P. 54(b). However, we find that Sumrall’s argument fails to address that the Havards
only raise this appeal after the circuit court’s judgment against the Akeso Group finally
adjudicated all the remaining claims among the parties. Consequently, we find that Sumrall
fails to address the provision in Mississippi Rule of Civil Procedure 58 that a judgment
finally resolving all claims as to all parties constitutes a final judgment when entered
pursuant to Mississippi Rule of Civil Procedure 79(a), even if not properly titled. See
M.R.C.P. 58.
¶9. This Court previously determined that the circuit court’s January 15, 2015 dismissal
of the Havards’ complaint against Sumrall constituted an interlocutory order. Havard, 194
So. 3d at 190-91 (¶7). Thus, the crux of the issue before us is whether the November 1, 2016
judgment against the Akeso Group constituted a final judgment that resolved all the claims
3
Sumrall also raises additional arguments relating to the default judgment the
Havards obtained against the Akeso Group. However, because Sumrall was not a party to
that litigation and filed no cross-appeal in the present matter, we decline to address her other
assignments of error.
5
among the parties, and if so, whether the Havards timely asserted their appeal and claims of
error following the November 1, 2016 judgment.
¶10. Jurisdiction constitutes a question of law that we review de novo. Weeks v. State, 139
So. 3d 727, 729 (¶5) (Miss. Ct. App. 2013). “An appeal . . . may be taken as a matter of right
only after the trial court disposes of all the claims against all defendants.” Calvert v. Griggs,
992 So. 2d 627, 631 (¶10) (Miss. 2008). In general, only final judgments are appealable.
Newson v. Newson, 138 So. 3d 275, 277 (¶6) (Miss. Ct. App. 2014). “An important function
of this final-judgment rule is to prevent piecemeal appeals.” Hoffman v. Hoffman, 200 So.
3d 465, 468 (¶9) (Miss. Ct. App. 2016) (citing R.A.S. Jr. v. S.S., 66 So. 3d 1257, 1261 (¶11)
(Miss. Ct. App. 2011)).
¶11. We acknowledge that, “[a]bsent a certification under Rule 54(b), any order in a
multiple-party or multiple-claim action, even if it appears to adjudicate a separable portion
of the controversy, is interlocutory.” Id. at (¶11) (quoting Newson, 138 So. 3d at 277 (¶7)).
“Consequently, a judgment will only be considered final and appealable if it adjudicates the
merits of the controversy which settles all the issues as to all the parties and requires no
further action by the lower court.” Rigdon v. Miss. Farm Bureau Fed’n, 22 So. 3d 321, 324
(¶7) (Miss. Ct. App. 2009) (citation and internal quotation marks omitted). Even so, we
recognize that Rule 58 provides:
Every judgment shall be set forth on a separate document which bears the title
of “Judgment.” However, a judgment which fully adjudicates the claim as to
all parties and which has been entered as provided in [Rule] 79(a) shall, in the
absence of prejudice to a party, have the force and finality of a judgment even
if it is not properly titled.
6
¶12. Rule 79(a) further states:
The clerk shall keep a book known as the “general docket” of such form and
style as is required by law and shall enter therein each civil action to which
these rules are made applicable. The file number of each action shall be noted
on each page of the docket whereon an entry of the action is made. All papers
filed with the clerk, all process issued and returns made thereon, all
appearances, orders, verdicts, and judgments shall be noted in this general
docket on the page assigned to the action and shall be marked with its file
number. These entries shall be brief but shall show the nature of each paper
filed or writ issued and the substance of each order or judgment of the court
and of the returns showing execution of process. The entry of an order or
judgment shall show the date the entry is made. In the event a formal order is
entered, the clerk shall insert the order in the file of the case.
¶13. Following this Court’s dismissal of their first attempted appeal for lack of jurisdiction,
the Havards obtained a default judgment against the only remaining defendant, the Akeso
Group. The default judgment finally adjudicated the Havards’ claims against the Akeso
Group at the trial-court level. See Woodkrest Custom Homes Inc. v. Cooper, 108 So. 3d 460,
465 (¶14) (Miss. Ct. App. 2013) (“When a judgment by default is entered, it is treated as a
conclusive and final adjudication of the issues necessary to justify the relief awarded and is
given the same effect as a judgment rendered after a trial on the merits.” (quoting M.R.C.P.
55 cmt.)). After the circuit court signed its judgment awarding the Havards damages against
the Akeso Group, the circuit clerk, in accordance with Rule 79(a), stamped the judgment as
filed on November 1, 2016, and entered the judgment into the general docket on the same
date. See M.R.C.P. 79(a). The Havards then filed their appeal with this Court on November
7, 2016, and raised as error the circuit court’s January 2015 dismissal of their complaint
against Sumrall. Thus, the Havards timely raised the instant appeal and claim of error within
thirty days of entry of the judgment that finally resolved all claims among all the parties.
7
Accordingly, we find we now possess jurisdiction to review the Havards’ appeal.
II. Rule 41(b) Dismissal
¶14. Trial courts possess the authority to dismiss an action due to a plaintiff’s failure to
prosecute. M.R.C.P. 41(b). Even so, “[b]ecause the law favors a trial of the issues on the
merits, a dismissal for lack of prosecution is employed reluctantly.” Holder, 54 So. 3d at 196
(¶16) (quoting Miss. Dep’t of Human Servs. v. Guidry, 830 So. 2d 628, 632 (¶13) (Miss.
2002)). We review a Rule 41(b) dismissal for abuse of discretion, and we affirm when the
following factors exist: “(1) a record of dilatory or contumacious conduct by the plaintiff;
and (2) a finding by [an appellate court] that lesser sanctions would not serve the interests
of justice. Additional ‘aggravating factors’ or actual prejudice may bolster the case for
dismissal, but are not requirements.” Id. at 196-97 (¶¶16, 18).
a. Clear Record of Delay
¶15. The Havards challenge the circuit court’s finding that “a clear record of delay and
dilatory conduct” warranted the dismissal of their claim against Sumrall. Mississippi caselaw
holds that “[d]elay alone may suffice for a dismissal under Rule 41(b)” and that “[f]actors
other than delay are not required.” Id. at 198 (¶20) (citation omitted). Here, the circuit court
relied on the passage of time to find delay, determining that the Havards failed to prosecute
their action against Sumrall for almost two years.
¶16. In Holder, the supreme court affirmed a trial court’s Rule 41(b) dismissal for failure
to prosecute due to the plaintiffs’ delay. Id. at 194 (¶1). In so doing, the supreme court
acknowledged that no set time limit exists for the prosecution of an action once it has been
8
filed and that a Rule 41(b) dismissal will be upheld when the record shows the plaintiff has
been guilty of dilatory or contumacious conduct and that lesser sanctions would not suffice.
Id. at 197 (¶17). Factors other than delay are not required to support a Rule 41(b) dismissal
for lack of prosecution when a lesser sanction would not serve the interests of justice. Id. at
198 (¶20). The Holder court further explained that, where a clear record of delay exists, no
showing of contumacious conduct is also required to support dismissal. Id. Moreover, actual
prejudice is not required for dismissal for lack of prosecution, and prejudice may be
presumed from an unreasonable delay. Id. at 199 (¶28).
¶17. In the present case, the Havards’ lawsuit stemmed from a November 2010 incident
at a Hattiesburg hospital. The Havards filed their initial complaint against Sumrall on
November 29, 2012. On January 7, 2013, they filed an amended complaint that added
Sumrall’s employer, the Akeso Group, as a defendant. On January 14, 2013, Sumrall filed
her answer and affirmative defenses to the amended complaint. On January 23, 2013, the
Akeso Group filed a notice acknowledging receipt of service of the amended complaint.
Then, for over a year and a half, no activity occurred in the case until the circuit court sent
the parties a trial-calendar notice on September 30, 2014. The following month, on October
21, 2014, Sumrall filed her motion to dismiss the Havards’ claim against her. On November
10, 2014, the circuit court sent the parties a notice of presetting for the trial.
¶18. On December 15, 2014, a notice of hearing was filed for Sumrall’s motion to dismiss.
Following this, on December 30, 2014, the Havards propounded discovery to Sumrall. This
marked the Havards’ first effort to prosecute their case against Sumrall since they filed their
9
amended complaint almost two years earlier on January 7, 2013. On January 5, 2015, the
same day as the hearing on Sumrall’s motion to dismiss, the Havards filed their response to
Sumrall’s motion.
¶19. At the hearing on Sumrall’s motion to dismiss, the Havards’ attorney, Wayne
Easterling, admitted that an almost two-year delay had occurred, but he contended that
mitigating factors existed. Easterling explained that both he and his client had dealt with
serious medical issues that had resulted in the delay. Easterling informed the circuit court
that he had suffered his own medical condition in April 2013 and had then undergone surgery
and rehabilitation, which prevented him from working on the case. Easterling further argued
that Sumrall had suffered no prejudice from the delay. Sumrall, however, responded that she
had suffered prejudice, and she argued that, instead of taking no action during the almost
two-year delay, the Havards could have at least filed a request for additional time.4
¶20. In the almost two-year period following the filing of their amended complaint, the
Havards submitted no discovery requests to Sumrall and disclosed no expert witnesses to
support their medical-malpractice claim. See M.R.C.P. 26. As the record reflects, the
Havards failed to begin their discovery until well beyond the deadlines established by Rule
4.04(A) of the Uniform Rules of Circuit and County Court.5 In addition, the Havards’
4
See State ex rel. Hood v. Louisville Tire Ctr. Inc., 204 So. 3d 1250, 1254 (¶11)
(Miss. 2016) (recognizing that the plaintiff “neither filed nor pursued anything for
approximately three years”); Manning v. King’s Daughters Med. Ctr., 138 So. 3d 109, 116
(¶21) (Miss. 2014) (finding the plaintiff “fail[ed] to take any action in her case for two years
after filing suit”).
5
Effective July 1, 2017, Rule 4.04(A) was renumbered as Rule 4.03(A) of the newly
renamed Uniform Civil Rules of Circuit and County Court.
10
response to Sumrall’s motion to dismiss was reactionary and not within the ten-day time limit
set by Rule 4.03(2) of the Uniform Rules of Circuit and County Court.6 See also Holder, 54
So. 3d at 197 (¶19) (discussing the plaintiffs’ untimely discovery submissions and failure to
timely file a response to the defendant’s motion to dismiss).
¶21. Sumrall filed her motion to dismiss on October 21, 2014, and the Havards failed to
respond until January 5, 2015, the day of the hearing on Sumrall’s motion. In accordance
with Rule 4.04(A), “[a]ll discovery must be completed within ninety days from service of an
answer by the applicable defendant.” Sumrall filed her answer and affirmative defenses to
the amended complaint on January 8, 2013. The Havards propounded no discovery until
December 30, 2014, almost two years after Sumrall answered the amended complaint and
over two months after Sumrall filed her motion to dismiss for failure to prosecute.
¶22. The supreme court has acknowledged that motions to dismiss for failure to prosecute
are considered on a case-by-case basis. Holder, 54 So. 3d at 197 (¶17). The record here
supports a finding of a clear record of delay since the Havards failed to begin their own
discovery until approximately two years after Sumrall answered the amended complaint and
since they only did so after Sumrall filed her motion to dismiss for failure to prosecute. Cf.
Beck v. Sapet, 937 So. 2d 945, 950 (¶¶12-13) (Miss. 2006) (finding that a party’s repeated
failure to comply with discovery requests warranted dismissal with prejudice). In
determining whether the record reflects a clear record of delay or contumacious conduct,
courts may consider whether a plaintiff’s activity was in reaction to a defendant’s motion to
6
Rule 4.03(2) has been renumbered as Rule 4.02(2) of the Uniform Civil Rules of
Circuit and County Court.
11
dismiss. Holder, 54 So. 3d at 198 (¶22). As acknowledged, the record here clearly reflects
the Havards began discovery as a reactionary measure to Sumrall filing her motion to dismiss
and that they did so well beyond the deadlines set forth in Rule 4.04(A).
¶23. As in Holder, the record shows the Havards also failed to move for any continuances
for additional time to conduct discovery. See Holder, 54 So. 3d at 199 (¶24). “When there
is a clear record of delay, no showing of contumacious conduct is necessary.” Id. at (¶25).
The record therefore shows no abuse of discretion by the circuit court’s dismissal for failure
to prosecute. See Regan v. S. Cent. Reg’l Med. Ctr., 2016-CA-00696-SCT, 2017 WL
391397, at **3-5 (¶¶13-24) (Miss. Sept. 7, 2017) (mandate issued Sept. 28, 2017) (finding
that patient’s inactivity evidenced a clear record of delay and that the trial court could dismiss
for failure to prosecute without issuing findings on lesser sanctions); Estate of Paulk v. Lott,
217 So. 3d 747, 750 (¶8) (Miss. Ct. App. 2017) (finding no abuse of discretion in dismissal
for failure to prosecute after a thirty-one-month delay by plaintiff following the filing of her
complaint). For these reasons, we find the record supports the circuit court’s conclusion that
a clear record of delay and reactionary conduct existed in this case.
b. Lesser Sanctions
¶24. The Havards also contend the circuit court should have considered a lesser sanction
than dismissal. However, our supreme court recently stated that “the absence of even a
general express finding on lesser sanctions does not require reversal.” Regan, 2017 WL
391397, at *4 (¶20) (citation and internal quotation marks omitted). The supreme court
instead explained that, although an appellate court “may be less likely to affirm a Rule 41(b)
12
dismissal if the record does not reflect that the trial court considered lesser sanctions, it is
clear that the ultimate decision lies with [the appellate c]ourt.” Id. (citation and internal
quotation marks omitted). Furthermore, “[a] showing of delay or contumacious conduct is
sufficient for a Rule 41(b) dismissal when a lesser sanction would not serve the best interests
of justice.” Holder, 54 So. 3d at 198 (¶20). Based on the clear record of delay and
reactionary conduct the Havards displayed in this case, we find no abuse of discretion in the
circuit court’s dismissal with prejudice since it served the best interests of justice. See id. at
197 (¶¶16, 18). We therefore find no abuse of discretion in the circuit court’s dismissal of
the Havards’ claim against Sumrall for failure to prosecute. See id. at (¶16).
¶25. AFFIRMED.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, FAIR, WILSON,
GREENLEE AND WESTBROOKS, JJ., CONCUR. TINDELL, J., NOT
PARTICIPATING.
13