Cornelius v. Benefield

168 So. 3d 1028, 2013 WL 4714330, 2013 Miss. App. LEXIS 558
CourtCourt of Appeals of Mississippi
DecidedSeptember 3, 2013
DocketNo. 2012-CA-00021-COA
StatusPublished
Cited by5 cases

This text of 168 So. 3d 1028 (Cornelius v. Benefield) 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
Cornelius v. Benefield, 168 So. 3d 1028, 2013 WL 4714330, 2013 Miss. App. LEXIS 558 (Mich. Ct. App. 2013).

Opinions

CARLTON, J.,

for the Court:

¶ 1. The issue presented in this case is whether the trial court abused its discretion in dismissing Nell Cornelius’s medical-malpractice claim with prejudice, pursuant to Mississippi Rule of Civil Procedure 41(b), for failure to prosecute. The trial court found dismissal was warranted because of a clear record of delay by Cornelius; prejudice to the defendant, Dr. Donald Benefield; and aggravating circumstances. The record shows that Cornelius repeatedly failed to cooperate with discovery requests; failed to timely disclose known witnesses, including an expert witness relevant to the factual basis of her claim; delayed in moving the case forward for fifteen months; and failed to schedule a deposition for nearly five years. Finding no abuse of discretion, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In early 2007, Dr. Benefield recommended that Cornelius undergo cataract surgery in both eyes. According to Cornelius’s complaint, Dr. Benefield successfully performed the first surgery on her left eye. However, on February 6, 2007, a complication occurred during surgery on her right eye, resulting in a choroidal hemorrhage and detached retina. She underwent surgery with a vitreo-retinal specialist, who was able to partially correct the damage. Cornelius asserts her vision was 20/30 in her right eye prior to the cataract surgery, but she is now effectively blind in that eye.

¶ 3. On February 6, 2009, two years after the cataract surgery on her right eye, Cornelius filed a medical-malpractice action against Dr. Benefield, individually and as shareholder of Benefield Eye Care PC, in the Circuit Court of Harrison County. The following timeline, based on the chronology listed in the trial court’s judgment, [1031]*1031sets forth the actions of record leading to the dismissal of this case:

February 6, 2007 Dr. Benefield performed cataract surgery on Cornelius’s right eye.
February 6, 2009 Cornelius filed her complaint against Dr. Benefield, alleging medical negligence for injuries sustained to her right eye.
May 28, 2009 Cornelius served Dr. Benefield with process.
June 22, 2009 Dr. Benefield filed an answer to Cornelius’s complaint.
July 24, 2009 Cornelius filed a certificate of expert consultation.
September 25, 2009 Dr. Benefield filed a “Motion to Dismiss for Failure to Comply with [Mississippi] Code [Annotated section] 15-1-36(15)1 and Motion to Dismiss for Failure to State a Claim pursuant to Miss. R. Civ. P. 12(b)(6).”
September 30, 2009 Dr. Benefield propounded his first set of discovery.
October 15, 2009 Dr. Benefield filed a “Motion to Compel Waiver of Medical Privilege.”
December 7, 2009 Dr. Benefield filed an “Amended Motion to Dismiss for Failure to Comply with [section] 15-1-36(15).”
December 21, 2009 Dr. Benefield moved to compel discovery.
January 28, 2010 The trial court entered an order requiring Cornelius to respond to Dr. Benefield’s first set of discovery by February 9, 2010.
February 11, 2010 Cornelius responded to Dr. Benefield’s first set of discovery requests.
February 22, 2010 Dr. Benefield filed a “Motion to Dismiss for Violation of Court Order Requiring Discovery with Combined Memorandum Brief,” alleging “the Plaintiff failed to disclose a scintilla of proof supporting [her] claims.”
March 16, 2010 Cornelius filed a combined response to Dr. Benefield’s motions to dismiss.
March 25, 2010 The trial court entered an order requiring Cornelius to “fully and completely respond to [Dr. Bene-field’s] first set of discovery requests within fourteen days.”
March 29, 2010 Dr. Benefield filed a “Rebuttal [Motion] in Support of Motion to Dismiss for Failure to Comply with [section] 15-1-36(15) and Motion to Dismiss for Violation of Court Order Requiring Discovery.”
April 8, 2010 Cornelius supplemented her discovery responses.
April 21, 2010 Cornelius propounded her first set of discovery.
June 7, 2010 Dr. Benefield responded to Cornelius’s first set of discovery requests.
July 26, 2011 Co-counsel entered an appearance for .Cornelius.
November 9, 2011 Dr. Benefield filed a motion to dismiss for failure to prosecute.
November 9, 2011 Dr. Benefield filed a notice of hearing on the motion to [1032]*1032dismiss for failure to prosecute, setting the hearing for December 8, 2011.
November 30, 2011 Cornelius filed a motion for extension of time to respond to Dr. Benefield’s motion to dismiss.
November 30, 2011 The trial court entered an order granting Cornelius an extension of time through December 1, 2011, to file a response to Dr. Bene-field’s motion to dismiss.
December 1, 2011 Cornelius filed her response to Dr. Benefield’s motion to . dismiss and moved to set a trial date.
December 1, 2011 Cornelius submitted her second supplemental responses to Dr. Benefield’s first set of discovery.
December 6, 2011 Dr. Benefield filed a reply in support of his motion to dismiss for failure to prosecute, objected to Cornelius’s counter-motion to set a trial date, and moved to strike Cornelius’s expert report.
December 7, 2011 Dr. Benefield filed a supplemental motion to dismiss for failure to prosecute and moved, in the alternative, to strike Cornelius’s newly filed expert report and affidavits.
December 8, 2011 The trial court held a hearing on Dr. Benefield’s motion to dismiss for failure to prosecute.

¶ 4. Following the December 8, 2011 hearing on Dr. Benefield’s Rule 41(b) motion, the trial court dismissed the case with prejudice, finding a clear record of delay, prejudice to Dr. Benefield, and aggravating circumstances. Cornelius appeals, asserting the trial court abused its discretion in dismissing her action when lesser sanctions would have sufficed.

STANDARD OF REVIEW

¶ 5. A trial court’s involuntary dismissal under Rule 41(b) is reviewed for abuse of discretion. Hanson v. Disotell, 106 So.3d 345, 347 (¶ 9) (Miss.2013); Am. Tel. & Tel. Co. v. Days Inn of Winona, 720 So.2d 178, 180 (¶ 12) (Miss.1998). A dismissal under Rule 41(b) is for failure of the plaintiff to prosecute or failure of the plaintiff to comply with the rules of civil procedure or any order of the court. See M.R.C.P. 41(b). The trial court’s findings of fact will be affirmed “unless the findings are manifestly wrong.” Jackson Pub. Sch. Dist. v. Head ex rel. Russell, 67 So.3d 761, 765 (¶ 10) (Miss.2011) (quoting Barry v. Reeves, 47 So.3d 689, 693 (¶ 9) (Miss.2010)).

¶ 6. Regarding the grant of dismissals for want of prosecution, the Mississippi Supreme Court has held:

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Bluebook (online)
168 So. 3d 1028, 2013 WL 4714330, 2013 Miss. App. LEXIS 558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cornelius-v-benefield-missctapp-2013.