Ginger M. Pope v. Charles F. Brock

179 So. 3d 1120, 2015 Miss. LEXIS 609, 2015 WL 9226371
CourtMississippi Supreme Court
DecidedDecember 17, 2015
Docket2013-CA-01713-SCT
StatusPublished
Cited by3 cases

This text of 179 So. 3d 1120 (Ginger M. Pope v. Charles F. Brock) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ginger M. Pope v. Charles F. Brock, 179 So. 3d 1120, 2015 Miss. LEXIS 609, 2015 WL 9226371 (Mich. 2015).

Opinion

RANDOLPH, Presiding Justice,

for the Court:

¶ 1. On March 24, 2006, the Bolivar County Circuit Court granted Dr. Charles F. Brock and Dr. Steven Clark summary judgment based on the expiration of the one-year statute of limitations in the Mississippi Tort Claims Act (“MTCA”). On September 27, 2010, Bolivar. Medical Center (“BMC”),- the final remaining defendant, was dismissed with prejudice. Improperly relying on an order certifying the March 24, 2006, order as final, which was later corrected by two separate orders by the trial court, Ginger -M. Pope requested *1121 an additional fourteen days in which to file her appeal. The trial court granted Pope additional time, and she filed her notice of appeal on October 9, 2013. This Court finds that the trial court erroneously granted Pope additional time to file, her appeal and that Pope’s appeal is dismissed as out of time.

PROCEDURAL HISTORY

¶ 2. On January 6, 2006, Drs. Brock and Clark filed a motion for summary judgment averring that they were employees of Cleveland Medical Alliance, an entity covered by the Mississippi Tort Claims Act, and were immune from personal liability. Drs. Brock and Clark also argued they were protected by the Act’s one-year statute of limitations. .

¶ 3. The trial court heard arguments on March 22, 2006. Pope argued that the previous decision of this Court in Pope v. Brock, 912 So.2d 936 (Miss.2005) (“Pope I ”), was the law of the case. Pope additionally argued that Drs. Brock’s and Clark’s claims of immunity and protection were precluded by the doctrines of law of the case, judicial estoppel, and waiver. Finally, Pope argued that the Cleveland Medical Alliance was not a governmental entity covered by the MTCA.

¶ 4. The trial court granted summary judgment in favor of Drs. Brock and Clark on March 24, 2006. 1 The trial court found that Drs. Brock and Clark did invoke the protection of the MTCA in their Fourth Affirmative Defense and that Drs. Brock and Clark were entitled to its protections and immunities as employees of Cleveland Medical Alliance, an instrumentality of a community hospital (Greenwood-Leflore Hospital). As to Pope’s argument regarding judicial estoppel, the trial court found:

Judicial estoppel precludes a party from asserting a position, benefitting from that position and then taking a contrary stand later in the same litigation. See In re: Estate of Richardson, 903 So.2d 51, 56 (Miss.2005). Before a party can be bound by a choice made in litigation, the party must actually have two inconsistent remedies. The doctrine of estop-pel refers to factual matters and not to contentions of law applied to the given state of facts. The Court finds persuasive Defendants’ argument that they did not benefit from their argument that the sixty (60) day notice provision did not toll the statute of limitations for medical negligence. The issue which was considered by the Supreme Court on interlocutory appeal in this matter was the proper construction and. effect of the sixty (60) day notice requirement for medical negligence actions dealing with the two (2) year statute of limitations. The issue of which statute of limitations was applicable was not raised before the Court and was not determined by the Supreme Court. The matter for appellate review was the interpretation of the notice provision and how it affected the running of the statute of limitations and whether or not there was a tolling of the statute or only ah extension of thé statute which would have made a difference. The issues in the present motion deal with whether or not Plaintiff complied with the notice of claim provisions of § 11-46-11, MCA, and whether or not Drs. Brock and Clark are immune from personal liability. The Court finds for those reasons the doctrine of the law of the case is not applicable.

Finding that no notice of claim was filed prior to thé expfration of the one-year statute of limitations, the trial court held that Pope’s claims were time-barred. At *1122 this point in time, that order was not- a final, appealable order, as Pope had pending claims against BMC.

¶ 5. Nonetheless, Pope filed a notice of appeal, which she later voluntarily dismissed, 2 and. approximately two months later, Pope filed a motion for reconsideration of the March 24, 2006, order in the trial court. On July 13, 2006, Drs. Brock and Clark filed a response to Pope’s motion for reconsideration.

¶ 6. On October 9, 2006, the trial court denied Pope’s motion for reconsideration. 3 Prior to the trial court’s ruling on the motion for reconsideration, this Court held that the Bolivar Leflore Medical Alliance was a community hospital entitled to the protections of the MTCA. Bolivar Leflore Med. Alliance v. Williams, 938 So.2d 1222, 1223 (Miss.2006). This Court’s holding in Bolivar was consistent with the trial court’s earlier ruling that Drs. Brock and Clark were entitled to the protections, and immunities of the MTCA as employees of Cleveland Medical Alliance. On October 20,2006, Drs. Brock and Clark filed a Rule 54(b) motion to certify the court’s March 24, 2006, judgment as final. See Miss. R. Civ. P. 54(b). Eleven days later, on October 31, 2006, Pope filed another notice of appeal. Approximately two weeks later, on November 16, 2006, Pope again filed a motion for voluntary dismissal of that appeal. 4

¶7. On November 3, 2006, 5 the trial judge signed an order certifying the March 24, 2006, judgment as final pursuant to Rule 54(b). 6 However, the circuit clerk failed to provide the parties notice of the order granting certification- of final judgment.

¶ 8. On March 5, 2007, unaware that the trial court had entered an order certifying the judgment as final, Pope responded in opposition to Drs. Brock and Clark’s motion to certify the March 24, 2006, judgment as final, more than four months after Drs. Brock and Clark had filed their motion. On the same day, Pope filed a motion to amend her complaint to add additional causes of action. On March 27, 2007, Drs. Brock and Clark, also unaware of the order certifying the March 24, 2006, judgment as final, responded to Pope’s opposition to their motion to certify the judgment as final. Drs. Brock and Clark also filed a motion to strike Pope’s response as untimely.

¶ 9. On October 22, 2007, the trial court heard arguments on Drs. Brock’s and Clark’s motion to certify judgment as final. On October 26, 2007, the trial court denied Pope’s motion for leave to amend her complaint and denied Drs. Brock’s and Clark’s motion to certify judgment as final. 7 This order served to rectify the trial court’s earlier mistake in holding that the March 24, 2006, order was final and appealable, *1123 finding that the March 24, 2006, order was' not a final, appealable order.

¶ 10.

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179 So. 3d 1120, 2015 Miss. LEXIS 609, 2015 WL 9226371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ginger-m-pope-v-charles-f-brock-miss-2015.