                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2014-IA-00959-SCT

KAY THORNHILL, C.F.N.P.

v.

CHRISTOPHER W. INGRAM, INDIVIDUALLY,
AND AS REPRESENTATIVE OF THE
WRONGFUL DEATH BENEFICIARIES OF
JENNIFER LYNN INGRAM, DECEASED

DATE OF JUDGMENT:           06/30/2014
TRIAL JUDGE:                HON. ROBERT B. HELFRICH
TRIAL COURT ATTORNEYS:      DORRANCE AULTMAN
                            S. BETH WINDHAM
                            NORMAN W. PAULI, JR.
                            JAMES A. COOK, JR.
COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:    DORRANCE AULTMAN
                            S. BETH WINDHAM
ATTORNEYS FOR APPELLEES:    NORMAN W. PAULI, JR.
                            JAMES A. COOK, JR.
NATURE OF THE CASE:         CIVIL - WRONGFUL DEATH
DISPOSITION:                REVERSED AND RENDERED - 10/01/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      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 Mississippi Rule of Civil Procedure 41(d), it did not address dismissals

on a party’s motion under Rule 41(b).

¶4.    A year and a half later, Thornhill moved to dismiss or, in the alternative, for summary

judgment, reasserting her statute-of-limitations argument. The renewed motion directed the

circuit judge to this Court’s opinion in Entergy Mississippi, Inc. v. Richardson, which had




       1
        All claims against Forrest County General Hospital and Dr. Edger Grissom have
been dismissed with prejudice and only Thornhill remains as a defendant.
       2
           Knight v. Knight, 85 So. 3d 832 (Miss. 2012).

                                              2
handed down after the judge denied the first motion.3 The circuit judge treated the motion

as one for relief from a judgment under Mississippi Rule of Civil Procedure 60(b) and found

no grounds for relief.

¶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 Rule 60(b) and

that the statute of limitations barred Ingram’s second suit. We agree.

                                         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

Mississippi Rule of Civil Procedure 12 or Mississippi Rule of Civil Procedure 56. The

motion made no reference to Mississippi Rule of Civil Procedure 60, and the motion never

requested relief from the circuit judge’s prior order.

¶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 Mississippi Rule Civil Procedure

60(b). Thornhill now argues that this was error, and that the motion should have been

treated as one to dismiss or for summary judgment. We agree.

¶8.    Rule 60(b) states that “[o]n motion and upon such terms as are just, the court may

relieve a party or his legal representative from a final judgment, order, or proceeding . . . .”4


       3
           Entergy Miss., Inc. v. Richardson, 134 So. 3d 287 (Miss. 2014).
       4
           Miss. R. Civ. P. 60(b) (emphasis added).

                                               3
This Court has said that motions under Rule 60 “proceed on the assumption that the trial

court has entered a valid and enforceable judgment which has become final.”5 That is, a

Rule 60 motion seeks relief from a final judgment.6

¶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 Rule 60(b).10

¶10.   We explained that “‘[a]n order denying summary judgment is neither final nor

binding upon the court or successor courts.’”11 On that basis, we concluded that the

plaintiff’s “reliance on Mississippi Rule of Civil Procedure 60(b)(6) is misplaced in that the




       5
           Bruce v. Bruce, 587 So. 2d 898, 904 (Miss. 1991).
       6
        Miss. R. Civ. P. 60(b) (“[T]he court may relieve a party or his legal representative
from a final judgment, order, or proceeding . . . .”) (emphasis added).
       7
           Holland v. Peoples Bank & Trust Co., 3 So. 3d 94, 97 (Miss. 2008).
       8
           Id. at 97–98.
       9
           Id. at 98.
       10
            Id. at 103–04.
       11
            Id. at 104 (quoting Mauck v. Columbus Hotel Co., 741 So. 2d 259, 268 (Miss.
1999)).

                                              4
rule applies only where the judgment or order is final. In accordance with Mauck, an order

denying a motion for summary judgment is not a final judgment.”12

¶11.   So a circuit judge’s decision to deny summary judgment cannot be reviewed through

Rule 60(b) because the denial does not constitute a final judgment. Accordingly, we find

that the circuit judge erred by treating Thornhill’s second dispositive motion as one under

Rule 60(b). And the only authority Ingram cites to the contrary is this Court’s decision in

Richardson, which dealt with a Rule 60(b) motion for relief from an order dismissing the

plaintiff’s case for failure to prosecute, not an order denying summary judgment.13

       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 Mississippi Code Section 15-1-36,

which states:

       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


       12
            Holland, 3 So. 3d at 104.
       13
            Richardson, 134 So. 3d at 289.
       14
            Miss. Code Ann. § 15-1-36 (Rev. 2012).

                                              5
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 Mississippi Rule of Civil Procedure 41(d), and not those initiated by a party

under Rule 41(b). We find that the exception to tolling articulated in Knight applies to all

cases dismissed for lack of prosecution.

¶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 a case was dismissed for failure to prosecute.17

¶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




       15
            Knight, 85 So. 3d at 835 (quoting Sarris v. Smith, 782 So. 2d 721, 723 (Miss.
2001)).
       16
         Sweet Valley Missionary Baptist Church v. Alfa Ins. Corp., 124 So. 3d 643, 645
(Miss. 2013) (quoting Hill v. Ramsey, 3 So. 3d 120, 123 (Miss. 2009)).
       17
            Hill, 3 So. 3d at 123.
       18
            Id. at 833.

                                               6
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
            Id.
       20
            Id.
       21
            Id.
       22
            Id. at 835.
       23
        Id. at 836 (citing Jackpot Mississippi Riverboat, Inc. v. Smith, 874 So. 2d 959,
961 (Miss. 2004); Marshall v. Burger King, 2 So. 3d 702 (Miss. Ct. App. 2008)).
       24
            Knight, 85 So. 3d at 837.
       25
            Id.

                                               7
¶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, and the

authority Knight cited, Ingram asks this Court to draw an untenable distinction.

¶21.   First, Knight twice stated its holding without any language limiting it to dismissals

under Rule 41(d).

       [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




       26
            Id. (quoting King v. Lujan, 98 N.M. 179, 646 P.2d 1243, 1245 (1982)) (emphasis
added).
       27
            Knight, 85 So. 3d at 838.
       28
            Knight, 85 So. 3d at 837.

                                               8
       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 Rule 41(b) and Rule 41(d).

¶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 Rule of Civil Procedure 41(b).31


       29
            Id. at 838.
       30
            Id. at 837 (quoting King, 646 P.2d at 1245).
       31
            King, 646 P.2d at 1244.

                                              9
¶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 Rule 60(b) and that the Rule 60(b) motion was time-barred under Knight.34

¶26.   We first concluded that the motion was not time-barred because, unlike in Knight,

the Rule 60 motion did not constitute the filing of a new complaint.35 But, in describing

Knight’s holding, we stated that “this Court held that the statute of limitations is not tolled

when a cause of action is dismissed without prejudice for lack of prosecution.”36 Our

characterization of Knight’s holding contained no limitation based on who moved to

dismiss, and we were not considering a dismissal on the clerk’s motion.

¶27.   We then considered whether grounds existed under Rule 60 to set aside the dismissal.

With regard to the plaintiff’s argument that the motion should be granted because, after

dismissal, the statute of limitations may preclude it from filing a second complaint, this

Court stated “while the potential running of the statute of limitations on the underlying claim

demonstrates prejudice to the moving party, that in itself is insufficient grounds for granting




       32
            Richardson, 134 So. 3d at 289.
       33
            Id.
       34
            Id.
       35
            Id. at 290.
       36
            Id. (citing Knight, 85 So. 3d at 838).

                                               10
reinstatement.”37 Our statement acknowledges that the statute of limitations may have

precluded refiling under Knight’s holding, despite the fact that this case dealt with a sua

sponte dismissal by the circuit judge, not one initiated by the clerk under Rule 41(d).

¶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


       37
            Entergy Miss., Inc., 134 So. 3d at 292.
       38
         Jones v. Howell, 827 So. 2d 691, 702 (Miss. 2002) (citing Thibodeaux v. State,
652 So. 2d 153, 155 (Miss. 1995)).

                                                11
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 Rule 41(b) would undermine the judge’s authority under that rule to determine

whether the dismissal should be one on the merits. The rule states “[u]nless the court in its

order for dismissal otherwise specifies, a dismissal under this subdivision and any other

dismissal not provided for in this rule . . . operates as an adjudication upon the merits.”41

But, once again, this reasoning does not distinguish this case from Knight because Rule

41(d), which was at issue in Knight, states “the court shall dismiss each such case without

prejudice.”42

¶32.   Said differently, Ingram is correct that in some cases, like this one, when a judge

exercises discretion under Rule 41(b) to dismiss without prejudice, a second action will


       39
       Smith v. Braden, 765 So. 2d 546, 558 (Miss. 2000) (citing Logan v. Zimmerman
Brush Co., 455 U.S. 422, 428, 102 S. Ct. 1148, 1154, 71 L. Ed. 2d 265 (1982)).
       40
            Smith, 765 So. 2d at 558 (citing Logan, 455 U.S. at 437).
       41
            Miss. R. Civ. P. 41(b).
       42
            Miss. R. Civ. P. 41(d).

                                             12
nevertheless be barred by the statute of limitations under the Knight rule. But Knight

contemplated a similar scenario under Rule 41(d) where the dismissal was without prejudice

by operation of the rule, but a subsequent suit still was barred.

¶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 Rule 60(b). Ingram’s second complaint is time-



                                              13
barred and should have been dismissed. We therefore reverse the judgment of the Circuit

Court of Forrest County and render judgment for Thornhill, finally dismissing the complaint

and this action with prejudice as barred by the applicable statute of limitations.

¶36.   REVERSED AND RENDERED.

    WALLER, C.J., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND
COLEMAN, JJ., CONCUR. RANDOLPH, P.J., NOT PARTICIPATING.




                                             14
