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Pruett v. Malone6/22/2000
DATE OF JUDGMENT: 12/23/1996
TRIAL JUDGE: HON. BILLY JOE LANDRUM
COURT FROM WHICH APPEALED: JONES COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
DISPOSITION: REVERSED AND RENDERED - 06/22/2000
EN BANC.
STATEMENT OF THE CASE
. On December 23, 1996, the Jones County Circuit Court entered a Final Judgment in favor of Dr. J. Bruce Pruett, finding that the attempted service of process on him was invalid and dismissing with prejudice this medical negligence case filed against him by Marilyn Malone. The judgment was certified as final with regard to Dr. Pruett, in accordance with M.R.C.P. 54(b) . On January 2, 1997, Malone timely filed a Motion to Reconsider. The motion was noticed for hearing on February 18, 1997, then renoticed for hearing on May 13, 1997. On May 13 there was no hearing, but on that date Malone's attorney filed an affidavit of the process server and noticed the deposition of Dr. Pruett for May 22, 1997. Malone did not further pursue her motion. There is no indication in the record that a hearing was ever held. By letter to the court clerk, Malone's attorney inquired as to whether the trial judge had ever entered an order, and by letter dated November 11, 1997, Pruett's attorney submitted an Order Denying Motion to Reconsider which the trial judge signed on November 20, 1997. This was a one- sentence order which stated only that the court had heard and considered the motion and found it was not well taken and therefore denied.
. Malone did not file an appeal from this adverse ruling by the trial judge. Eight months later, however, she filed a Second Motion to Reconsider, citing M.R.C.P. 60(b)(6) as her authority for doing so. Her motion challenged the original judgment of the court entered in December 1996, but not the order which denied the first motion for rehearing. Again, there was no record made of the hearing. On August 28, 1998, again with a one- sentence order, the trial judge stated only that he considered the second motion to reconsider, and heard argument of counsel, and found that the motion should be granted and the matter reinstated on the active docket.
. Aggrieved by the trial judge's decision, Pruett sought certification for an interlocutory appeal, which the trial court granted pursuant to M.R.A.P. 5, and this Court granted Pruett's Petition for Interlocutory Appeal. Finding that the trial court erred when it reinstated this matter, we reverse and render.
STATEMENT OF UNDERLYING FACTS
. On March 3, 1993, Malone was admitted to the hospital under the care and supervision of Pruett. While under his care, on March 8, 1993, Malone underwent a surgical procedure to repair an inguinal hernia. On March 6, 1995, Malone filed her complaint in this action which gave no details of her surgery or her care or her injuries, but simply alleged that Pruett and others were guilty of negligence, and that as a direct and proximate result of the negligence and deviations from the standard of care, she incurred various generally described expenses, pain and suffering, lost wages, and permanent impairment.
. On the same day the complaint was filed, a summons for Dr. Pruett was issued. The clerk gave it to Malone's attorney, per his instructions, for service. Not until the 119th day after the complaint was filed, was service attempted upon Dr. Pruett. Not finding Dr. Pruett at his office, an independent process server hired by Malone's attorney simply left the summons with Dr. Pruett's insurance clerk. Dr. Pruett lived across the street from his office in Laurel, practiced at the hospital which was only one mile fro
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