Byrd v. Biloxi Regional Medical Center

722 So. 2d 166, 1998 Miss. App. LEXIS 707, 1998 WL 614619
CourtCourt of Appeals of Mississippi
DecidedSeptember 15, 1998
Docket97-CA-00709 COA
StatusPublished
Cited by19 cases

This text of 722 So. 2d 166 (Byrd v. Biloxi Regional Medical Center) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Byrd v. Biloxi Regional Medical Center, 722 So. 2d 166, 1998 Miss. App. LEXIS 707, 1998 WL 614619 (Mich. Ct. App. 1998).

Opinion

722 So.2d 166 (1998)

Edgar BYRD, Appellant,
v.
BILOXI REGIONAL MEDICAL CENTER, Appellee.

No. 97-CA-00709 COA.

Court of Appeals of Mississippi.

September 15, 1998.

David R. Daniels, Tupelo, for Appellant.

Stephen Giles Peresich, Biloxi, for Appellee.

Before BRIDGES, C.J., and COLEMAN and HERRING, JJ.

HERRING, Judge, for the Court:

¶ 1. Edgar Byrd appeals to this court from an order of the Circuit Court of Harrison County, Mississippi, which granted the motion for summary judgment of Biloxi Regional Medical Center (BRMC). A hearing on the summary judgment motion was held on November 12, 1996, and the trial court entered its order granting summary judgment on November 15, 1996. Neither party received notice that the trial court had entered its order granting summary judgment until March 7, 1997. BRMC agreed that it would not contest the timeliness of Byrd's appeal if the Notice of Appeal was filed within thirty days. Instead, Byrd filed a Motion for Reconsideration apparently pursuant to M.R.C.P. 59(e) on March 13, 1997, but did not give notice of its Motion for Reconsideration to BRMC until May 9, 1997. BRMC then promptly filed its response to the Motion for Reconsideration on May 12, 1997, and alleged that the motion was time barred. Thereafter, the trial court denied Byrd's Motion for Reconsideration on May 14, 1997, without comment. Byrd's Notice of Appeal was subsequently filed on May 23, 1997, some 189 days after the trial court's ruling in which it granted summary judgment to *167 BRMC. Because Byrd's Notice of Appeal was untimely filed in violation of our appellate rules, we must rule that Byrd's appeal should be dismissed.

I. THE FACTS

¶ 2. On September 3, 1993, Edgar Byrd went to the emergency room of BRMC complaining of pain. He was examined and subsequently admitted to the hospital. Dr. Holman scheduled Byrd for surgery on the next day to remove some kidney stones. On September 4, 1993, Byrd's surgery was completed at 8:30 a.m., and he was removed from the operating room to a post-operation room at 9:05 a.m. He was taken from the post-operation room at 10:05 a.m. and arrived at his hospital room at 10:15 a.m. BRMC personnel helped Byrd into bed, and Nurse Roxanne Ladner made the following notations on Byrd's record: "calm, alert and oriented times three (person, place and time) safety rails up, bed position checked, call bell within reach."

¶ 3. At 11:45 a.m., Byrd was found lying on his right side on the floor of his room. He later stated that as he got out of bed, he placed his hand on a food tray and then lost his balance and fell to the floor. As a result of this fall, Byrd broke his hip. Notes from the nurses' record indicate that at 11:45 a.m. "patient was found on floor by RT (respiratory therapist) lying on right side. Patient stated he was `going to look out window' Alert and oriented Activity orders up ad lib. Side rails up times three."

¶ 4. Byrd filed his complaint against BRMC on January 13, 1995, and alleged that hospital personnel were negligent because (1) they left the bed rails down, and (2) they negligently left him unattended while he was still under the influence of medication.

II. THE ISSUES

¶ 5. The Appellant, Edgar Byrd, assigns only one error which is taken verbatim from his brief:

THAT DUE TO THE EXISTENCE OF GENUINE ISSUES OF MATERIAL FACT, THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANT BELOW.

¶ 6. However, BRMC raises the following affirmative defense in its appellate brief:

I. THE PLAINTIFF/APPELLANT'S APPEAL IS BARRED DUE TO HIS FAILURE TO MEET AND COMPLY WITH THE MISSISSIPPI RULES OF CIVIL PROCEDURE AND THE MISSISSIPPI RULES OF APPELLATE PROCEDURE.

III. ANALYSIS

¶ 7. Whether Byrd's appeal is time-barred and whether this issue is dispositive of all issues in this case must be addressed first. It is noteworthy that Byrd does not address the issue of his untimely appeal in his Appellant's Brief, and that he chose not to file a Reply Brief. Nevertheless, we will address this issue based upon the argument of Appellee and our own research.

¶ 8. The circuit clerk's docket sheets chronicle the events and dates which transpired between (1) the time that the trial court granted BRMC's Motion for Summary Judgment, and (2) the time that Byrd filed his Notice of Appeal. BRMC's summary judgment motion was granted on November 15, 1996. Both parties state that they did not receive notice and did not know that summary judgment had been granted until March 7, 1997. At that time, BRMC agreed not to contest the timeliness of Byrd's appeal if he filed a notice of appeal within thirty days.[1] As stated above, instead of filing a Notice of Appeal, Byrd filed a Motion for Reconsideration on March 13, 1997. However, notice of the Motion for Reconsideration was not served on BRMC by Byrd until May 7, 1997. On May 9, 1997, BRMC filed its response and challenged the timeliness of the motion. The trial court denied the Motion for Reconsideration without comment on *168 May 14, 1997. Thereafter, Byrd finally filed his Notice of Appeal on May 23, 1997.

¶ 9. The issue before us is whether Byrd's appeal should be dismissed because he failed to timely file his Notice of Appeal in accordance with our Mississippi Rules of Appellate Procedure as they were written at the time Byrd filed his Notice of Appeal. If we find that Byrd's appeal was not filed in a timely manner, Rule 2 of our appellate rules requires that Byrd's appeal be dismissed. Rule 2 states as follows:

(a) Dismissal of Appeal.
(1) Mandatory Dismissal. An appeal shall be dismissed if the Notice of Appeal was not timely filed pursuant to Rules 4 or 5.
...
(c) Suspension of Rules. In the interest of expediting decision, or for other good cause shown, the Supreme Court or the Court of Appeals may suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction; provided, however, in civil cases the time for taking an appeal as provided in Rules 4 or 5 may not be extended.

M.R.A.P. Rule 2(a)(1)(1996) (emphasis added). The comment to Rule 2 states "[u]nder Rule 2(a)(1), if an appeal is not taken within the time specified in Rules 4 or 5, either court, on its own motion or on the motion of party, shall dismiss it."[2]

¶ 10. In Bank of Edwards v. Cassity Auto Sales, Inc., 599 So.2d 579 (Miss.1992) our supreme court stated:

Rule 2(a) reflects the long-standing rule in this state that the failure to file a timely appeal leaves this Court without jurisdiction to consider the case. See In re Estate of Ware, 573 So.2d 773, 774 (Miss.1990); Kennedy v. Gervais, 345 So.2d 1039, 1039 (Miss.1977). The rule is strictly enforced. Estate of Ware, 573 So.2d at 775; see e.g., Moore v. Wax, 554 So.2d 312, 313 (Miss. 1989); Duncan v. St. Romain, 569 So.2d 687, 688-89 (Miss.1990) (appeal dismissed where out-of -state lawyer relied in good faith on conflicting statutory appeal period of 45 days).

Id. at 582. Moreover, as stated in Rule 2(c), this Court may not suspend the rules regarding the time for taking a civil appeal. M.R.A.P. Rule 2(c).

¶ 11. In the case sub judice, the record and the briefs are silent at to Byrd's position of this issue.

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Bluebook (online)
722 So. 2d 166, 1998 Miss. App. LEXIS 707, 1998 WL 614619, Counsel Stack Legal Research, https://law.counselstack.com/opinion/byrd-v-biloxi-regional-medical-center-missctapp-1998.