                    IN THE SUPREME COURT OF MISSISSIPPI

                                   NO. 2009-CA-00268-SCT

SHELIA REGAN

v.

SOUTH CENTRAL REGIONAL MEDICAL
CENTER

                           ON MOTION FOR REHEARING

DATE OF JUDGMENT:                          12/15/2008
TRIAL JUDGE:                               HON. BILLY JOE LANDRUM
COURT FROM WHICH APPEALED:                 JONES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    NORMAN WILLIAM PAULI, JR.
ATTORNEYS FOR APPELLEE:                    RICHARD O. BURSON
                                           PEELER GRAYSON LACEY, JR.
NATURE OF THE CASE:                        CIVIL - MEDICAL MALPRACTICE
DISPOSITION:                               AFFIRMED - 08/05/2010
MOTION FOR REHEARING FILED:                09/03/2010
MANDATE ISSUED:


       EN BANC.

       PIERCE, JUSTICE, FOR THE COURT:

¶1.    The motion for rehearing is denied. The previous opinions are withdrawn and this

opinion is substituted therefor.

¶2.    This appeal arises from a medical-negligence action arising out of the care and

treatment of Shelia Regan at South Central Regional Medical Center (“the Hospital”) on or

about December 5, 2003. The trial court granted the Hospital’s Motion for Summary

Judgment and dismissed the suit on November 27, 2007, due to Regan’s failure to attach a

certificate of expert consultation with her complaint. The trial court’s decision was based
on this Court’s decision in Walker v. Whitfield Nursing Center, Inc., 931 So. 2d 583 (Miss.

2006). Less than one year after the trial court’s decision, this Court overturned Walker in

Wimley v. Reid, 991 So. 2d 135 (Miss. 2008). On October 1, 2008, Regan filed a motion

under Mississippi Rule of Civil Procedure Rule 60(b) to set aside the trial court’s order on

October 1, 2008. It was denied, and Regan now appeals the trial court’s decision.

               STATEMENT OF FACTS AND PROCEDURAL HISTORY 1

¶3.    Regan filed her complaint styled Shelia Regan v. South Central Regional Medical

Center, Cause No. 2005-48-CV3 (“Regan I”), on or about March 10, 2005. She failed to

attach a certificate of expert consultation to the complaint, which is a requirement under

Mississippi Code Section 11-1-58. See Miss. Code Ann. § 11-1-58 (Supp. 2010). The

Hospital filed a Motion to Dismiss on July 20, 2005, citing Regan’s noncompliance with

Section 11-1-58. Regan subsequently filed the Certificate of Consultation on July 21, 2005.

¶4.    On November 7, 2005, the trial court denied the Hospital’s Motion to Dismiss, finding

that Regan’s attorney had consulted with a physician five days prior to filing the Complaint.

On June 8, 2006, this Court handed down its decision in Walker v. Whitfield Nursing

Center, Inc., 931 So. 2d 583 (Miss. 2006) (holding that failure to comply with the notice

prerequisites of Mississippi Code Section 11-1-58 results in a failure to state a claim upon

which relief can be granted), overruled by Wimley v. Reid, 991 So. 2d 135 (Miss. 2008). On

September 21, 2006, the Hospital filed a Motion for Summary Judgment.          The Hospital

argued that, under Walker, Regan’s failure to comply with Section 11-1-58 resulted in an




       1
           See Appendix A for an timeline of the procedural history.

                                              2
incomplete complaint, and she therefore had failed to state a claim upon which relief could

be granted.

¶5.    Regan filed a Motion For Leave to File Amended Complaint on October 23, 2007.

The trial court entered an Order Denying Plaintiff’s Motion For Leave to File Amended

Complaint on November 27, 2007. On that same day, the trial court also entered its Order

Granting Summary Judgment and Judgment of Dismissal in Regan I based on this Court’s

decision in Walker and Regan’s failure to comply with Mississippi Code Section 11-1-58.

See Miss. Code Ann. § 11-1-58 (Supp. 2010).

¶6.    The following day, November 28, 2007, Regan filed a second complaint styled Shelia

Regan v. South Central Regional Medical Center, Cause No. 2007-248-CV11 (“Regan II”).

Regan’s complaint in Regan II was substantially similar to her complaint in Regan I, but it

included a certificate of expert consultation. On December 6, 2007, Regan filed a Rule 59(e)

Motion for Reconsideration or To Amend regarding the summary judgment entered in

Regan I. See Miss. R. Civ. P. 59(e). The Hospital filed its Answer and Rule 12(b)(6)

Motion to Dismiss Regan II on the grounds that the statute of limitations had run and that

the principles of priority jurisdiction prohibited Regan from simultaneously pursuing two

identical actions against the Hospital. See Miss. R. Civ. P. 12(b)(6).   The trial court entered

an Order Denying Regan’s Rule 59(e) motion in Regan I on April 2, 2008. This order

started the tolling of Regan’s thirty-day period to appeal the trial court’s dismissal of Regan

I. On April 3, 2008, Regan voluntarily dismissed her complaint in Regan II, but then

immediately filed a third complaint against the Hospital styled Shelia Regan v. South

Central Regional Medical Center, Cause No. 2008-873-CV4 (“Regan III”).

                                              3
¶7.    Three weeks later, on April 22, 2008, Regan filed a Rule 60 Motion to Clarify

Judgment in Regan I, stating “since Plaintiff is considering commencing an appeal, there

exists a real need for Plaintiff to have this Motion to Clarify heard on an emergency or

expedited bases [sic].” See Miss. R. Civ. P. 60. The trial court entered its Order Clarifying

Judgment in Regan I on May 1, 2008, stating that it was dismissed “without prejudice.”

Regan did not file an appeal of Regan I, but instead continued to pursue her case in Regan

III.

¶8.    On May 22, 2008, the Hospital filed a Rule 12(b)(6) Motion to Dismiss in Regan III

on the ground that Regan’s claims were barred by the expiration of the statute of limitations.

See Miss. R. Civ. P. 12 (b)(6). The trial court entered an Order Granting the Hospital’s

Motion to Dismiss in Regan III on September 10, 2008. See Miss. R. Civ. P. 59 (e). Regan

filed a Rule 59(e) Motion to Amend Order and Judgment of Dismissal in Regan III on

September 19, 2008. According to the record before this Court, that motion has been stayed

pending this Court’s decision in the present Regan I matter.

¶9.    On September 12, 2008, this Court handed down its decision in Wimley v. Reid, 991

So. 2d 135 (Miss. 2008). On October 1, 2008, Regan filed a Rule 60(b) Motion to Set Aside

the Order Granting Summary Judgment and Judgment of Dismissal in Regan I. See Miss.

R. Civ. P. 60(b). In that motion, Regan argued that the Wimley decision entitled her to relief

under Rule 60(b). After a hearing on the matter, the trial court entered an order denying

Regan’s Rule 60(b) Motion on December 15, 2008. Regan then promptly filed a Rule 59(e)

Motion For Reconsideration on December 24, 2008. See Miss. R. Civ. P. 59(e). On January




                                              4
21, 2009, the trial court entered on order denying Regan’s Motion for Reconsideration in

Regan I. Regan filed the present Notice of Appeal on February 17, 2009.

                                          ANALYSIS

¶10.   Regan argues on appeal that the trial court erred in denying her relief under Rule

60(b)(4), (5) and (6). Motions that seek “relief under Rule 60(b) are generally addressed to

the sound discretion of the trial court and appellate review is limited to whether that

discretion has been abused.” Stringfellow v. Stringfellow, 451 So. 2d 219, 221 (Miss. 1984)

(citing Clarke v. Burkle, 570 F. 2d 824 (5th Cir. 1978)). Further, “when ruling on such

motions a balance must be struck between granting a litigant a hearing on the merits with the

need and desire to achieve finality in litigation.” Id. (citing House v. Sec’y of Health and

Human Servs., 688 F. 2d 7 (2nd Cir. 1982)).

       I.       Whether Regan May Argue for the First Time on Appeal That
                She Is Entitled to Relief under Rule 60(b)(4) When She Did Not
                Raise the Provision at the Trial Court Level.

¶11.   Regan claims the trial court erred in failing to grant her relief under Rule 60(b)(4).2

However, Regan failed to argue that she was entitled to relief under subsection (4) at the trial




       2
           Rule 60(b)(4) states:

                (b) Mistakes; Inadvertence; Newly Discovered Evidence; Fraud,
                etc. On 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 for the following reasons:
       ...
                (4) the judgment is void . . .

Miss. R. Civ. P. 60(b)(4).


                                                 5
court level, and is now precluded from raising it for the first time on appeal. This Court has

stated previously that it “need not address issues raised for the first time on appeal.” Goode

v. Village of Woodgreen Homeowners Assoc., 662 So. 2d 1064, 1076 (Miss. 1995) (citing

R & S Dev., Inc. v. Wilson, 534 So. 2d 1008, 1012 (Miss. 1988)).

¶12.   At the trial-court level, Regan filed a Rule 60(b) motion. In her motion, she did not

list any particular subsection. However, the motion refered to the overruled Walker decision

upon which the Order Granting Summary Judgment was based. Walker v. Whitfield Nursing

Center, Inc., 931 So. 2d 583 (Miss. 2006). In her Reply In Support of Plaintiff’s Rule 60(b)

Motion, Regan argued that there is a showing of “extraordinary and compelling”

circumstances and then specifically stated Rule 60(b)(6) “stands as a ‘grand reservoir’ of

equitable power to do justice.” Regan did not mention subsection (4) in any of the pleadings

regarding her Rule 60(b) Motion to Reconsider, nor did she make any arguments regarding

subsection (4) at the motions hearing. Furthermore, she did not argue in the pleading that the

trial court’s judgment was void.

¶13.   The first time Regan argued based on Rule 60(b)(4) was in her appellate brief. The

trial court was never afforded the opportunity to hear these issues nor to make a ruling

concerning subsection (4). Therefore, this issue is not properly before this Court.

       II.    Whether Regan Can Seek Relief under Rule 60(b)(5).

¶14.   Although Regan never specifically argued Rule 60(b)(5) in her Rule 60(b) Motion,

she did argue that, because Wimley overruled Walker, the trial court should enter an order

amending or setting aside its prior Order Granting Summary Judgment and Judgment of

Dismissal. The Rule reads as follows:

                                              6
       (b) Mistakes; Inadvertence; Newly Discovered Evidence; Fraud, etc. On
       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 for the
       following reasons: . . .
       ...
              (5) the judgment has been satisfied, released or discharged; it is
              based on an earlier judgment that has been reversed or vacated;
              or applying it prospectively is no longer equitable.

Miss. R. Civ. P. 60(b)(5).

¶15.   Mississippi Rule of Civil Procedure 60(b) is nearly identical to Federal Rule of Civil

Procedure 60(b), with only a slight difference in the time limitation within which a Rule

60(b) motion must be filed. When state and federal rules are similar, this Court has said “that

we will consider authoritative federal constructions when determining what our construction

of our rule ought to be.” Stringfellow v. Stringfellow, 451 So. 2d 219, 221 (Miss. 1984)

(citing Brown v. Credit Center, Inc., 444 So. 2d 358, 364 n.1 (Miss. 1983)).         The Fifth

Circuit has stated in Bailey v. Doring Company, Inc., 894 F. 2d 157, 160 (5th Cir. 1990),

that “while 60(b)(5) authorizes relief when a judgment upon which it is based has been

reversed or otherwise vacated, it does not authorize relief from a judgment on the ground that

the law applied by the court in making its adjudication has been subsequently overruled or

declared erroneous in another and unrelated proceeding.” Therefore, finding the Fifth

Circuit’s analysis persuasive in Bailey, we reiterate that, under the current facts, Rule

60(b)(5) is not a mechanism by which Regan can be granted relief.

       III.   Regan’s Rule 60(b)(6) Motion to Set Aside Order Granting
              Summary Judgment and Judgment of Dismissal

¶16.   Regan contends that the Court should find sufficient reasons to justify relief through

Rule 60(b)(6)’s catch-all provision. Mississippi Rule of Civil Procedure 60(b)(6) states:

                                              7
       (b)Mistakes; Inadvertence; Newly Discovered Evidence; Fraud, etc. On
       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 for the
       following reasons: . . .
       ...
              (6) any other reason justifying relief from judgment.

       The motion shall be made within a reasonable time, and for reasons (1), (2)
       and (3) not more than six months after the judgment, order, or proceeding was
       entered or taken.

Miss. R. Civ. P. 60(b). In particular, Regan claims that there are “extraordinary and

compelling circumstances” that entitle her to post-judgment relief under Rule 60(b)(6),

namely the change in applicable law pursuant to Wimley v. Reid, 991 So. 2d 135 (Miss.

2008). This Court has held that “relief under Rule 60(b)(6) ‘is reserved for exceptional and

compelling circumstances.’” Moore v. Jacobs, 752 So. 2d 1013, 1017 (Miss. 1999) (citing

Bryant, Inc. v. Walters, 493 So. 2d 933, 939 (Miss. 1986)).

¶17.   As previously stated, this Court considers federal interpretation to be persuasive in

construing our rules. In Community Dental Services v. Tani, 282 F. 3d 1164 (9th Cir. 2002)

(quoting Martella v. Marine Cooks & Stewards Union, 448 F. 2d 729, 730 (9th Cir. 1971)),

the Ninth Circuit held that, for a party to be granted relief under Rule 60(b)(6), he must

demonstrate “extraordinary circumstances which prevented or rendered him unable to

prosecute [his case].” Further, the “party must demonstrate both injury and circumstances

beyond his control that prevented him from proceeding with the prosecution or defense of

the action in a proper fashion.” Id. (citing United States v. Alpine Land & Reservoir Co.,

984 F. 2d 1047, 1049 (9th Cir. 1993)).




                                             8
¶18.   The Fifth Circuit has held that “a change in decision law after entry of judgment does

not constitute exceptional circumstances and is not alone grounds for relief from a final

judgment.” Bailey v. Ryan Stevedoring Co., Inc., 894 F. 2d 157, 160 (5th Cir. 1990) (citing

McNight v. United States Steel Corp., 726 F. 2d 333, 336 (7th Cir. 1984); Title v. United

States, 263 F. 2d 28, 31 (9th Cir. 1959)).

¶19.   Regan relies on Overbee v. Van Waters & Rogers, 765 F. 2d 578 (6th Cir. 1985) in

support of her argument that a change in the law constitutes an “extraordinary or compelling

circumstance.” While the Sixth Circuit Court of Appeals found the facts in Overbee to fit

the definition of “extraordinary and compelling,” those facts are distinguishable from the

facts in this case. In Overbee, the Supreme Court of Ohio changed its position on the

applicable law within one year. Id. at 580. In this case, Wimley was handed down more than

two years after Walker was decided. Furthermore, Overbee was still an ongoing case when

the change in law occurred. The Overbee case had been remanded on another issue, and was

still pending in the trial court when the Rule 60(b) motion was filed. In Regan I, the judge

had entered his final order, and no appeal was pending.

¶20.   Regan also relies on a federal district-court case, Heirs-at-Law and Beneficiaries of

Gilbert v. Dresser Industrial, Inc., 158 F.R.D. 89 (N.D. Miss. Dec. 1993), in support of her

argument that the change in law should support her Rule 60(b)(6) motion. Gilbert also is

distinguishable from the current case. In Gilbert, the trial court compared the facts in the

case to “‘a postjudgment change in the law having retroactive application,’ a situation other

courts have recognized as ‘extraordinary’ enough to warrant relief under the rule.” Id. at 93

(citing Matarese v. Le Fevre, 801 F. 2d 98 (2d Cir. 1986), cert. denied, 480 U.S. 908, 107

                                             9
S. Ct. 1353, 94 L. Ed. 2d 523 (1987)). However, the Matarese case, upon which the Gilbert

court relied, stated that “a law having retroactive application may, in special circumstances,

constitute an extraordinary circumstance.” Matarese, 801 F.2d at 106. Further, this Court,

in Thompson v. City of Vicksburg, 813 So. 2d 717 (Miss. 2002), held that “newly enunciated

rules of law are applied retroactively to cases that are pending trial or that are on appeal, and

not final at the time of the enunciation.” Id. at 721. In the current case, the change in law

was not enunciated until after the Regan I judgment was final. Therefore, the change in law

is not retroactively applied in the present matter, and Gilbert is inapplicable.

¶21.   It is clear from the abundant caselaw presented that a change in the law does not meet

the definition of “extraordinary or compelling circumstance.” Therefore, the trial court did

not abuse its discretion when it denied Regan’s Rule 60(b)(6) Motion to Set Aside Order

Granting Summary Judgment and Judgment of Dismissal.

                                       CONCLUSION

¶22.   On appeal, Regan argues that the trial court erred in failing to grant her relief under

Rule 60(b)(4), (5), and (6). Due to her failure to raise Rule 60(b)(4) at the trial-court level,

she is procedurally barred from arguing it for the first time on appeal. Regan’s Rule 60(b)(5)

argument also is unsuccessful. Federal caselaw, which is persuasive, indicates that relief

cannot be granted under subsection (5) when the law upon which the judgment at issue is

based is subsequently overturned or declared erroneous in an unrelated proceeding. Finally,

Regan argues that under Rule 60(b)(6), this Court’s opinion in Wimley v. Reid presented an

extraordinary and compelling circumstance. After review of the record and relevant caselaw,

we find that a postjudgment change in law in an unrelated case does not meet the definition

                                               10
of “extraordinary and compelling circumstance” where the judgment at issue has become

final. The trial court is therefore affirmed.

¶23.   AFFIRMED.

    WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR,
KITCHENS AND CHANDLER, JJ., CONCUR. GRAVES, P.J., NOT
PARTICIPATING.




                                                11
                               Appendix A
                            Procedural Timeline

March 10, 2005       Regan filed her Complaint in Regan I, failing to attach a
                     Certificate of Expert Consultation.

July 20, 2005        Hospital filed Answer and Motion to Dismiss for failure to
                     comply with Mississippi Code Section 11-1-58.

July 22, 2005        Regan filed the missing Certificate of Consultation.
November 7, 2005     The trial court denied the Hospital’s Motion to Dismiss.
June 8, 2006         This Court handed down Walker v. Whitfield Nursing
                     Center, Inc., 931 So. 2d 583 (Miss. 2006) (holding that
                     failure to comply with the notice requirements of Mississippi
                     Code Section 11-1-58 results in a failure to state a claim upon
                     which relief can be granted).

September 21, 2006   Hospital filed a Motion for Summary Judgment pursuant to
                     Walker.

October 23, 2007     Regan filed a Motion for Leave to File an Amended
                     Complaint.

November 27, 2007    The trial court denied Regan’s motion to amend her complaint
                     and entered an Order Granting Summary Judgment and
                     Judgment of Dismissal.

November 28, 2007    Regan filed her Complaint in Regan II, which included the
                     Certificate of Expert Consultation.

December 6, 2007     Regan filed a Rule 59(e) Motion for Reconsideration in
                     Regan I.

April 2, 2008        The trial court entered an order denying the Rule 59(e) motion
                     in Regan I.

April 3, 2008        Regan voluntarily dismissed Regan II because it was “filed
                     prematurely before the aforementioned [Rule 59 Motion for
                     Reconsideration was] ruled on.” Regan immediately filed her
                     Complaint in Regan III.

April 22, 2008       Regan filed Rule 60 Motion to Clarify Judgment in Regan I.

                                     12
May 1, 2008          Trial court entered an order clarifying the judgment in Regan
                     I, stating that it was dismissed “without prejudice.”

May 2, 2008          Last day for Regan to appeal the dismissal of Regan I.
May 22, 2008         Hospital filed a Rule12(b)(6) Motion to Dismiss in Regan III,
                     claiming Regan’s claims were barred by the statute of
                     limitations.

September 10, 2008   The trial court entered an Order Granting the Hospital’s
                     Motion to Dismiss in Regan III based upon the statute of
                     limitations.

September 18, 2008   This Court handed down Wimley v. Reid, 991 So. 2d 135
                     (Miss. 2008), which overrules Walker and its progeny.

September 19, 2008   Regan filed a Rule 59(e) Motion to Reconsider in Regan III,
                     which is presently stayed in the trial court pending this
                     Court’s decision in the present matter.

October 1, 2008      Regan filed Rule 60 Motion to Set Aside the Order Granting
                     Summary Judgment and Judgment of Dismissal in Regan I.

December 15, 2008    The trial court entered an Order Denying Regan’s Rule 60(b)
                     Motion in Regan I.

December 24, 2008    Regan filed a Rule 59(e) Motion for Reconsideration in
                     Regan I.

January 21, 2009     The trial court entered an Order Denying Regan’s Motion for
                     Reconsideration in Regan I.

February 17, 2009    Regan filed the present Notice of Appeal for Regan I.




                                     13
