KAY THORNHILL, C.F.N.P. v. CHRISTOPHER W. INGRAM, INDIVIDUALLY, AND AS REPRESENTATIVE OF THE WRONGFUL DEATH BENEFICIARIES OF JENNIFER LYNN INGRAM, DECEASED
NO. 2014-IA-00959-SCT
IN THE SUPREME COURT OF MISSISSIPPI
10/01/2015
DATE OF JUDGMENT: 06/30/2014
HON. ROBERT B. HELFRICH
TRIAL COURT
BEFORE DICKINSON, P.J., PIERCE AND COLEMAN, JJ.
DICKINSON, PRESIDING JUSTICE, FOR THE COURT:
¶1. A wrongful-death beneficiary failed to prosecute this medical-malpractice case for four years, so, on the defendant‘s motion, the circuit judge dismissed the complaint. The plaintiff refiled, and the defendant twice moved to dismiss, arguing that the statute of limitations had lapsed. Both motions were denied, and we granted interlocutory appeal. Because the statute of limitations is not tolled when cases are dismissed for lack of prosecution, the second complaint was untimely. Accordingly, we reverse and render.
FACTS AND PROCEDURAL HISTORY
¶2. In 2002, Christopher Ingram sued Forrest County General Hospital, Dr. Edgar Grissom, and Kay Thornhill on behalf of Jennifer Ingram‘s wrongful-death beneficiaries.1 Ingram claimed that their failure to accurately diagnosis Jennifer and provide her necessary medical treatment caused her 2001 death. But, eight years later, the defendants moved the circuit judge to dismiss Ingram‘s case for failure to prosecute. The circuit judge dismissed the case “without prejudice.”
¶3. Ingram refiled December 29, 2010. Thornhill moved for summary judgment and claimed that the statute of limitations had run. She argued that, under this Court‘s decision in Knight v. Knight, the statute had not been tolled during the first proceeding.2 The circuit judge denied the motion, finding that, while the Knight holding addressed dismissals on the clerk‘s motion under
¶5. Thornhill then petitioned this Court for interlocutory appeal, which we granted. She now argues that the circuit judge erred by treating the motion as one under
ANALYSIS
I. The circuit judge erred by treating Thornhill‘s second motion as a motion for relief from a judgment under Rule 60(b) .
¶6. Thornhill styled her second dispositive motion as a “Motion to Dismiss or in the Alternative for Summary Judgment.” The motion specifically requested relief under
¶7. But because he previously had denied a similar motion, the circuit judge treated the second motion as one for relief from a judgment under
¶8.
This Court has said that motions under
¶9. In Holland v. Peoples Bank & Trust Company, a circuit judge denied the defendant‘s motion for summary judgment.7 After that judge recused and this Court appointed a special judge, the defendants asked the new judge to reconsider the order denying summary judgment.8 The new judge then granted summary judgment.9 The plaintiff appealed and argued that the second judge could not reconsider the motion for summary judgment because no ground for relief existed under
¶10. We explained that “‘[a]n order denying summary judgment is neither final
¶11. So a circuit judge‘s decision to deny summary judgment cannot be reviewed through
II. The circuit judge erred by denying Thornhill‘s motion to dismiss, or for summary judgment.
¶12. Thornhill moved to dismiss Ingram‘s claims, arguing that the statute of limitations ran before Ingram filed his second complaint. The parties agree that Ingram‘s medical-malpractice claims are subject to the limitations period in
no claim in tort may be brought against a licensed physician, osteopath, dentist, hospital, institution for the aged or infirm, nurse, pharmacist, podiatrist, optometrist or chiropractor for injuries or wrongful death arising out of the course of medical, surgical or other professional services unless it is filed within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered, and, except as described in paragraphs (a) and (b) of this subsection, in no event more than seven (7) years after the alleged act, omission or neglect occurred . . . .14
The parties also agree that, unless the statute of limitations was tolled, it lapsed, because the second complaint was filed in 2010—nine years after the alleged negligent conduct occurred.
¶13. Thornhill argues that in Knight, we held that any time a case is dismissed for lack of prosecution, the statute of limitations is not tolled during the first proceeding. Ingram argues that Knight‘s holding pertained only to dismissals for failure to prosecute on the clerk‘s motion under
¶14. The “‘[a]pplication of a statute of limitation is a question of law to which a de novo standard also applies.‘”15 The general rule in Mississippi is “that, unless process is not timely served, the statute of limitations is tolled upon the filing of the complaint, and does not begin to run again until litigation has ended.”16 Before Knight, this rule applied even when
¶15. In Knight, a circuit judge dismissed claims for assault and battery without prejudice after nearly ten years of inactivity.18 The dismissal was initiated on motion of the circuit clerk.19 The plaintiffs refiled their complaints, but the defendant moved to dismiss, arguing that the statute of limitations had lapsed.20 The circuit judge agreed.21
¶16. The plaintiffs appealed, and this Court considered whether “a complaint should not toll the statute of limitations when a complaint is dismissed without prejudice for failure to prosecute.”22 We recognized then that, previously,
[t]his Court and the Court of Appeals ha[d] . . . both recognized that filing a complaint tolls the statute of limitations and permits a plaintiff to refile his or her case if this case is dismissed without prejudice and time remains on the statute of limitations.23
¶17. But we then adopted a new rule, stating that
when an action is dismissed without prejudice for failure to prosecute, the statute of limitations does not toll, and the parties are left in the same position as if they had never filed the action.24
¶18. We provided several reasons for our holding, including that “[a]llowing the statute to toll in such a situation presents an opportunity for abuse of process, potentially allowing cases to be dismissed and refiled for a period of years or even decades.”25
¶19. We also made it clear that plaintiffs who fail to prosecute their cases have only themselves to blame, noting cases from other jurisdictions which adopted a similar rule for that reason, including the New Mexico Supreme Court, which said:
A party who has slept on his rights should not be permitted to harass the opposing party with a pending action for an unreasonable time. . . the courts should not distinguish between a plaintiff who takes no action before the limitations period expires and a plaintiff who files a complaint before the period expires but who thereafter takes no action . . . .26
¶20. In Knight, however, we did place some limitation on our holding, stating:
This holding, however, does not mean that all cases dismissed without prejudice after the statute of limitations has expired cannot be refiled. Some will be revived by the savings statute, equitable tolling, or otherwise. Our narrow holding here is merely that dismissal without prejudice for want of prosecution does not toll the statute of limitations.27
Given the language used in Knight‘s holding, the reasoning that led to its holding,
¶21. First, Knight twice stated its holding without any language limiting it to dismissals under
[W]hen an action is dismissed without prejudice for failure to prosecute, the statute of limitations does not toll, and the parties are left in the same position as if they had never filed the action28....
and
Our narrow holding here is merely that dismissal without prejudice for want of prosecution does not toll the statute of limitations.29
Both iterations tie the holding to dismissals for failure to prosecute generally, which can occur under both
¶22. Second, the reasoning that led us to adopt our holding in Knight applies equally, regardless of whether the clerk or a party moves to dismiss for failure to prosecute. We explicitly adopted the reasoning of the New Mexico Supreme Court which stated that “[a] party who has slept on his rights should not be permitted to harass the opposing party with a pending action for an unreasonable time” and that “the courts should not distinguish between a plaintiff who takes no action before the limitations period expires and a plaintiff who files a complaint before the period expires but who thereafter takes no action.”30
¶23. Irrespective of who moves to dismiss, the rationale that one who files a complaint but takes no action should be treated exactly the same as one who never filed the complaint applies with equal force. In both cases, the plaintiff has sat on his rights and his dilatory action should not be saved by the mere filing of a complaint without actual prosecution.
¶24. Finally, to say the Knight holding pertained to dismissals on the clerk‘s motion alone ignores the authority Knight cited. Knight extensively adopted reasoning from the New Mexico Supreme Court‘s decisions in King v. Lujan, which dealt with a judge‘s sua sponte dismissal for failure to prosecute under New Mexico‘s
¶25. Further, in Richardson, a circuit judge, on the court‘s own motion, dismissed a tort action for the plaintiff‘s failure to prosecute.32 The plaintiff moved to reinstate the case, arguing, among other things, that dismissal may implicate the statute of limitations.33 The judge reinstated the case and the defendant appealed, arguing that no valid ground for relief existed under
¶26. We first concluded that the motion was not time-barred because, unlike in Knight, the
¶27. We then considered whether grounds existed under
¶28. So, under our language and reasoning in Knight, and our characterization of that holding in Richardson, we must conclude that a statute of limitations is not tolled during a proceeding that is dismissed ultimately for failure to prosecute, regardless of whether the dismissal is initiated by the clerk, the judge, or a party. Said differently, while the general rule in this State remains that the timely filing of a complaint and service of process tolls the statute of limitations, we have carved out an exception to that rule for all cases dismissed for failure to prosecute. And because the statute was not tolled in this case, the statute of limitations barred Ingram‘s second complaint, and the circuit judge erred by denying Thornhill‘s motion to dismiss.
¶29. Ingram also argues, however, that this Court cannot adopt a rule that a case dismissed for lack of prosecution on a party‘s motion does not toll the statute of limitations, because to do so would deprive the plaintiff of property without due process of law. But Ingram fails to cite any authority to support the view that failing to toll a statute of limitations can violate due process. We consider arguments without citation to authority abandoned.38
¶30. Further, this Court has adopted the view that “[t]o prevail on a claim for denial of procedural due process, the plaintiffs must show not only that they were deprived of a protected property interest, but also that they were denied the process due them.”39 And “[t]he United States Supreme Court has explained that a state may erect reasonable procedural requirements for triggering the right to adjudication, such as statutes of limitations, and a state accords due process when it terminates a claim for failure to comply with a reasonable procedural rule.”40 Here, the first complaint was dismissed because the plaintiff failed to act in a reasonable time after filing the complaint, and due process does not preclude this Court from terminating the right to file a second complaint.
¶31. Ingram also argues that a rule that the statute is not tolled when a case is dismissed under
¶32. Said differently, Ingram is correct that in some cases, like this one, when a judge exercises discretion under
¶33. Finally, Ingram argues that Thornhill should be estopped from arguing that the statute of limitations ran because she agreed that the first suit should be dismissed without prejudice during an in-chambers conference. But the record does not include a transcript or other information about the in-chambers conference. We take this opportunity again to warn the bench and bar that conversations that take place in the judge‘s chambers are not part of the record and should not be cited to this Court as evidence, unless those conversations are recorded by a court reporter.
¶34. Further, as discussed above, Knight assumed that the order of dismissal was without prejudice when it found that the statute of limitations barred a second suit. So, under Knight‘s reasoning, whether a dismissal is “without prejudice” and whether the statute of limitations has run are distinct inquiries. Therefore, even if Thornhill had agreed to a dismissal without prejudice, that agreement—standing alone—did not amount to a concession that the statute of limitations had not run.
CONCLUSION
¶35. In Knight, we held that the statute of limitations is not tolled when an action is dismissed for failure to prosecute. That holding was not limited to dismissals resulting from the clerk‘s motion. So the circuit judge erred by denying Thornhill‘s motion to dismiss and by treating the motion as one filed under
¶36. REVERSED AND RENDERED.
WALLER, C.J., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR. RANDOLPH, P.J., NOT PARTICIPATING.