
    Mary G. KOERNER v. James C. CRITTENDEN, M.D.
    No. 91-CA-0017.
    Supreme Court of Mississippi.
    March 31, 1994.
    Malcolm F. Jones, Pass Christian, for appellant.
    Donald C. Doman, Jr., Biloxi, for appellee.
   McRAE, Justice,

for the Court:

This appeal arises from a November 13, 1990, order of the Hancock County Circuit Court denying for the second time a motion to reconsider its November 20, 1989, order granting Dr. James Crittenden’s motion for summary judgment in a medical malpractice case. Affidavits filed by the parties raised triable questions of fact which, but for the imposition of a local rule governing summary judgment, would have resulted in a jury trial. Finding that the award of summary judgment was based in part upon local rules promulgated by the Second Circuit Court District of the State of Mississippi which had not been approved by this Court pursuant to Uniform Circuit Court Rule 1.13 or even filed with this Court as required by M.R.C.P. 83, we reverse and remand.

I.

Mary Koerner punctured her finger on a nail while processing animal hides on or about January 8, 1986. She was treated by Dr. Crittenden. An infection developed; the finger failed to heal properly and ultimately, was amputated. On January 5, 1988, Koer-ner filed a medical malpractice action against Dr. Crittenden, Peggy Smith and the Hancock Medical Center.

On November 1,1989, Dr. Crittenden filed a motion for summary judgment. A copy of the motion was mailed that day to Koerner’s attorney, Malcolm F. Jones. On November 10, 1989, the Hancock County Court Administrator wrote to Jones, informing him that counsel opposite had filed the motion for summary judgment and further, that the letter served as notice that he had ten (10) days to respond to Dr. Crittenden’s motion. In relevant part, the letter stated:

Tom Stennis has filed a Motion for Summary Judgment on behalf of Dr. Critten-den, together with a brief in support of the Motion for Summary Judgment and Findings of Fact and Conclusions of Law. You now have ten days within which to file your Response, Memorandum Brief, and proposed Order, with this office, [emphasis added]

A letter dated October 20,1989, and signed by the district’s three circuit court judges had been sent to attorneys in the Second Circuit Court District regarding the implementation of administrative procedures for the efficient handling of the caseload in the district. It further set forth a local rule for summary judgment as follows:

SUMMARY JUDGMENTS PROCEDURE
The original Motion for Summary Judgment shall be filed with the Circuit Clerk. A copy of it together "with:
1. a letter brief (2-3 pages);
2. copies of all cases cited; and
3. an original Finding of Facts, Conclusion of Law and Order (not proposed) by movant or;
4. an Order denying the Motion for Summary Judgment by the respondent; shall be filed with the Court Administrator’s Office. Counsel opposing Summary Judgment shall file a response within 10 days after receipt of the Motion for Summary Judgment, [emphasis added]

The letter further advised members of the local bar that:

The Court Administrator shall set the Motion for hearing unless otherwise directed by the assigned judge. Pursuant to Rules 2.06 of the UCCR, it shall be the duty of the movant:

... to pursue said motion to a hearing and decision by the Court during the term at which the motion is filed, or at the next term of court, ... Failure to comply with the above procedure shall be considered an abandonment of said motion....
Please contact the Court Administrator’s office if you have any motion presently under advisement with a particular judge, and make sure the judge is aware of the matter and has all the materials necessary for ruling.

Finding that Koerner had failed to answer interrogatories and requests for production of documents and not responded to the November 1, 1989, motion for summary judgment, the circuit court, without a hearing, found that Dr. Crittenden was entitled to a judgment as a matter of law in accordance with the local rule as well as M.R.C.P. 56. In his November 20,1989, order granting the motion, the circuit court further found that Koerner had failed to produce any qualified expert witnesses to controvert medical issues relevant to the lawsuit.

Koerner filed a motion to reconsider and/or dismiss summary judgment on November 30, 1989, asserting that her failure to respond was due to excusable neglect. Her attorney’s affidavit, submitted with the motion to reconsider, indicated that his temporary secretary had failed to inform him that the motion had been delivered and also to enter the deadline for filing a response on his calendars. He stated that he only learned that summary judgment had been entered when he called the circuit court to inquire about the case file on November 27, 1989. The circuit court denied Koerner’s motion to reconsider on December 5, 1989.

Another motion to reconsider was filed on December 15, 1989. On January 26, 1990, the affidavit of Koerner’s medical expert, Dr. James R. Gosey, was filed with the court. Three days later, a hearing on the motion was held. Some ten months later, on November 13, 1990, an order denying the motion was subsequently entered.

II.

Of the several procedural questions raised in this appeal, we find the issue of the local rules governing summary judgment to be dispositive. By a letter dated October 20, 1989, the Second District Circuit Court notified attorneys within the district that responses to motions for summary judgment must be filed with the circuit court within ten days of receipt of the motion. Rule 56 makes no such provision. Rather, it provides that motions shall be served at least ten days prior to the hearing and further, that affidavits by the adverse party may be served prior to the day of the hearing. No hearing was held in the ease sub judice until after the filing of the second motion to reconsider and Koerner’s medical expert’s affidavit was filed three days before the scheduled hearing date.

Rules 1.12 and 1.13 of the Uniform Circuit Court Rules define the rule-making capacity of the local courts. Rule 1.12 places administrative matters such as docket setting, vacation matters and the time of starting court within the discretion of the local courts. The promulgation of any additional local rules, however, is limited by Rule 1.13. Rule 1.13 provides as follows:

There shall be no additional local rules of circuit court unless adopted by a majority of the Circuit Judges Section of the Mississippi Conference of Judges and approved by the Supreme Court of Mississippi.

U.C.C.R. 1.13 (1989 ed.)' (emphasis added).

M.R.C.P. 83 further defines and limits the rule-making power of local courts. At the time of the case sub judice, it provided that:

Any court by action of a majority of the judges thereof may hereafter make local rules and amendments thereto concerning practice in their respective courts not inconsistent with these rules. All local rules shall be filed with the Supreme Court of Mississippi; thereupon, the Supreme Court shall publish and disseminate same to all members of the Mississippi State Bar.

M.R.C.P. 83 (1988 ed.) (emphasis added). See also Johnson v. Weston Lumber & Building Supply Co., 566 So.2d 466, 468-469 (Miss.1990). Rule 83 was amended on March 1, 1989, effective January 1, 1990. As amended, the rule provides no shelter for the Second Circuit Court District since it required Supreme Court approval of all local rules.

As we explained in Watts v. Pennington, 598 So.2d 1308 (Miss.1992), where we found that the circuit court had exceeded its authority by unilaterally implementing and enforcing a settlement deadline affording less time than that provided pursuant to U.C.C.R. 2.13:

Unquestionably, a circuit court possesses inherent rule making power to enable it to effectively implement the Mississippi Rules of Civil Procedure. Rule 83 and its comment clearly provide for this. This is the common law as well. For example, a circuit court judge has authority to set a reasonable pre-trial cut-off date for the filing of demurrers, motions, etc., “consistent with the Uniform Criminal Rules of Circuit Court Practice, and to enforce the same.” Hines v. State, 472 So.2d 386, 389 (Miss.1985). A trial court has an inherent right to control its docket and is afforded “reasonable latitude” regarding the setting and continuance of cases, (citations omitted).

598 So.2d at 1312.

In the case sub judice, the Second District has acted contrary to both U.C.C.R. 1.13 and M.R.C.P. 83 by promulgating a rule inconsistent with the provisions for summary judgment set forth in M.R.C.P. 56. As implemented, the local rule provided Koemer with no opportunity for a hearing and abridged the time period available for obtaining affidavits. But for the local rule, the affidavit she submitted three days prior to the January 1990 hearing provided the necessary basis for a jury trial on the merits of the ease.

Further, there is no evidence that the Second District’s summary judgment rule was adopted by a majority of the Circuit Judges Section of the Mississippi Conference of Judges or approved by this Court as required by U.C.C.R. 1.13. Likewise, there is no evidence that the local rule was even filed with this Court and disseminated to all members of the Mississippi bar pursuant to M.R.C.P. 83. We know only that attorneys within the Second Circuit Court District were notified of the procedure by letter dated October 20, 1989.

Dr. Crittenden argued that Rule 56(e) provides that when a party does not respond by affidavits or otherwise, “summary judgment, if appropriate, shall be entered against him.” However, summary judgment is not appropriate when based upon an invalid local rule. Accordingly, we reverse and remand the orders of the Hancock County Circuit Court granting Dr. Crittenden’s motion for summary judgment and denying Mary Koerner’s motions to reconsider.

REVERSED AND REMANDED.

DAN M. LEE, P.J., and SULLIVAN, PITTMAN, BANKS and JAMES L. ROBERTS, Jr., JJ., concur.

SMITH, J., concurs in part.

HAWKINS, C.J., dissents with separate written opinion joined by PRATHER, P.J.

HAWKINS, Chief Justice,

dissenting:

I respectfully dissent. Contrary to the majority, the record shows a woefully deficient prosecution of plaintiffs case by her lawyer, a circuit judge rightfully in control of his docket placing reasonable, legitimate deadlines for filing responses, and then giving the plaintiff ample opportunity to respond. The majority has just extracted all authority of a trial judge to make reasonable rules to move lethargic attorneys. The majority ignores the fact that rules of civil procedure are for trial courts, and they are in a far better position to promulgate and apply reasonable and fair rules to move cases along.

On January 8, 1986, while working with some animal hides, Mary G. Koerner sustained a puncture wound in the joint of her right little finger. She went to the emergency room of the Hancock Medical Center in Bay St. Louis where she was treated by Peggy Smith, a registered nurse, and James C. Crittenden, M.D. Complications later developed, and on March 5, 1986, Charles W. Krieger, M.D., orthopedic surgeon in Slidell, Louisiana, amputated her finger.

On January 5, 1988, Koerner filed a complaint in the circuit court of Hancock County against Dr. Crittenden, nurse Smith and the medical center. There is no appeal, however, from the dismissal of Smith and Hancock Medical Center. Dr. Crittenden answered. Also, on February 4, 1988, he propounded detailed interrogatories and requests for production of documents. Plaintiffs counsel made no response to either.

On November 1, 1989, some 21 months later, Dr. Crittenden moved for summary judgment, attaching affidavits by himself, Dr. Krieger, Wesley L. McFarland, M.D., and Roger H. Reed, M.D., which, after relating the facts pertaining to Koerner’s treatment by Dr. Crittenden, Smith and the medical center, stated that in their professional opinions there was no negligence or malpractice in their treatment of her.

The motion with affidavits was mailed to Malcolm F. Jones, attorney for Koerner that day, and received by his office the next day or day following, November 2 or 3. In effect at that time was a local rule dealing with procedures on motions for summary judgments. The rule contained the following sentence: “Counsel opposing Summary Judgment shall file a response within 10 days after receipt of the Motion for Summary Judgment.”

On November 10 the court administrator mailed Jones a letter advising him that Tom Stennis, counsel for Dr. Crittenden, had filed a motion for summary judgment, and he had 10 days within which to file his response, memorandum brief and proposed order, and enclosed a copy of the local rule.

On November 20 Koerner had filed no response, and being in total default, the circuit judge entered an order sustaining Dr. Crittenden’s motion for summary judgment, and dismissed the complaint, also citing therein failure by Koerner to prosecute her cause of action.

On December 1 Jones filed a motion to reconsider. In it he acknowledged that Dr. Crittenden had filed the motion pursuant to the rules of civil procedure on November 1, and that pursuant to the local rule the summary judgment had been entered November 20. He gave as his reason for not filing a response “excusable neglect” on his part, but did not tell the court the basis for his “excusable neglect.” He went on to assert that Koerner had a meritorious cause of action, and that he wanted to take the depositions of Crittenden and the other codefendants. Jones attached no counter-affidavits, and there was nothing in the court file disputing any of the affidavits filed by Dr. Crittenden.

On December 5 the court entered an order overruling plaintiffs motion to reconsider, noting that no counter-affidavits were filed with the motion to reconsider, and that plaintiff had over a year and ten months to respond to the interrogatories and request for production of documents and otherwise prepare for trial.

On December 15 Jones again filed a “Motion and Brief’ for the court to reconsider and set aside its summary judgment entered November 20, citing as reason therefor he had not been granted a hearing, and that the local rule was unauthorized and inconsistent with Rule 56 M.R.C.P. Again, no counter-affidavits were filed, or anything else creating an issue of fact as to Dr. Crittenden’s malpractice or negligent treatment of Koer-ner.

On January 26, 1990, Jones filed answers to the interrogatories, a response to the request for production of documents, and for the first time a counter-affidavit of James R. Gosey, M.D., which did create an issue of fact on whether or not Dr. Crittenden was negligent in his treatment of Koerner and guilty of malpractice.

The circuit judge heard arguments on the motion on January 29, and on November 13, 1990, entered still another order denying the motion to reconsider.

LAW

Mississippi Rule of Civil Procedure 56(b), (c) states in pertinent part:

RULE 56. SUMMARY JUDGMENT
(b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.
(c) Motion and Proceedings Thereon. The motion shall be served at least ten days before the time fixed for the hearing. The adverse party prior to the day of the hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

In this case the circuit judge, following his local rule, did not conduct a hearing on November 20, 1989, before granting a summary judgment for the defendant. Clearly, the failure to conduct a hearing did not prejudice Koerner. Even if he had conducted a hearing that day the circuit judge would have had no alternative but to grant Dr. Crittenden a summary judgment, because there was nothing before the court disputing the affidavits of the physicians. Brown v. Credit Center, Inc., 444 So.2d 358, 364 (Miss.1983); Smith v. First Federal Sav. & Loan Ass’n, 460 So.2d 786, 792 (Miss.1984); Phillips By and Through Phillips v. Hull, 516 So.2d 488, 490-91 (Miss.1987); Palmer v. Biloxi Regional Medical Center, Inc., 564 So.2d 1346, 1355 (Miss.1990). For the same reason, failure to conduct a hearing on December 5 before overruling Koerner’s motion to reconsider did not prejudice Koerner. What prejudiced her was the failure of her attorney Jones to produce one single piece of evidence contrary to the affidavits of the physicians. Ditto for December 15.

Our Rules of Civil Procedure are patterned after the Federal rules. In Hamman v. Southwestern Gas Pipeline, Inc., 721 F.2d 140 (1983), the Fifth Circuit Court of Appeals faced the identical question presented in this case, and held:

Rule 56(e) of the Federal Rules of Civil Procedure provides that a summary judgment motion shall be served at least ten days before the time fixed for the hearing. We have previously interpreted the language of this rule as requiring notice to an adverse party and a hearing. Kibort v. Hampton, 538 F.2d 90, 91 (5th Cir.1976). Such a “hearing,” however, need not necessarily be an oral one. Rather, the rule contemplates ten days advance notice to the adverse party that the matter will be taken under advisement as of a certain day. Id.
The Kibort court specifically stated, however, that procedures provided by local rules requiring motions for summary judgment to be accompanied by briefs and requiring opposing affidavits and briefs to be filed within a certain period afford an adequate hearing within the meaning of the rule. Id. at 91 n. 1. In Howell v. Tanner, 650 F.2d 610 (5th Cir.1981), we held that a local rule providing that a respondent to a motion for summary judgment must submit all briefs within ten days and that all motions would be decided without a hearing unless otherwise ordered by the court fully satisfied the notice and hearing requirements of Rule 56.
Local rules governing today’s case are quite simular to those in Howell. Rule 5.1(e) provides that “[a]ny response to a motion shall be filed within 20 days from the date of filing of the motion. N.D.Tex.R. 5.1(e). Rule 5.1(f) provides that “[ojral argument on motions will not be held unless directed by the Court.” N.D.Tex.R. 5.1(f). These rules put appellants on notice that the district court could decide the motion at any time after 20 days had passed from the time it was file. Appellants had filed a responsive brief. The requirements of Rule 56(c) were satisfied.

Id. at 142. See also Geear v. Boulder Community Hospital, 844 F.2d 764 (10th Cir. 1988). Both Hamman and Geear held that local rules by a district court similar to the local rule in effect here complied with Rule 56(c) of the Federal Rules of Civil Procedure. The majority cites neither of these cases.

Federal Rules required the approval of the United States Congress, and are in effect Acts of Congress. Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (affirming 682 F.Supp. 1033 (W.D.Mo.1988)); 28 U.S.C. § 2076; Sib-bach v. Wilson & Co., 312 U.S. 1, 9-10, 61 S.Ct. 422, 424-25, 85 L.Ed. 479 (1941). Our Rules of Civil Procedure, however, emanated solely from this Court. Page, Constitutionalism and Judicial Rule Making, 3 Miss. Coll.L.Rev. 1; Ball, Comment, The Limits of the Mississippi Rule-Making Authority, 60 Miss.L.J. 2 (1990); Morton, Note, Rules, Rulemaking and the Ruled: The Mississippi Supreme Court as the Self Proclaimed Ruler, 12 Miss.Coll.L.Rev. 293 (1991). This would lead one to believe that a United States district court judge has considerably less leeway in interpreting and implementing the Federal Rules than a trial court judge in Mississippi. After all, our Rules presumably are for the assistance of trial judges and trial litigants. Not so, however: a circuit judge by the majority’s pronouncement is a toothless tiger in implementing or furthering the purposes behind the rules.

In Hines v. State, 472 So.2d 386, 389 (Miss. 1985), we held: “We regard the fixing of orderly time limitations within which various actions must be taken by the parties well within the rule-making power of any court.” In Hines, there was a local order setting a certain time date by which all motions could be filed, and the defendant filed his demurrer to the indictment the morning of trial. We held the circuit judge did not commit error in overruling the demurrer as being untimely filed.

Busy trial judges should not have to spend time wet-nursing lazy or lackadaisical lawyers. Our over-loaded judicial system can ill-afford such a luxury.

The local rule in effect in this case was one the circuit judge felt was needed, it was not contrary to the intent or spirit of Rule 56, and it should not be declared void by this Court simply because it did not follow every letter of the Rule.

The majority cites Johnson v. Weston Lumber & Building Supply Co., 566 So.2d 466 (Miss.1990), and Waits v. Pennington, 598 So.2d 1308 (Miss.1992), both factually distinguishable and the rationale of which support this dissent.

Finally, the majority correctly quotes our Rule 83, which requires this Court to approve local rules. I do not view Rule 83 as restricting trial judges from promulgating without this Court’s approval any local rule they choose which does not conflict with, supersede or go beyond the framework of our Rules. The local rule in this case, as the Federal cases illustrate, did not.

PRATHER, P.J., joins this opinion. 
      
      . The 1989 amendments to Rule 83 provide a procedure for approval of local court rules as follows:
      (b) Procedure for Approval. All such local rules and uniform rules hereinafter adopted before being effective must be submitted to the Supreme Court of Mississippi for approval. Upon receipt ... of the same, the Supreme Court shall submit them to the Supreme Court Advisory Committee on Rules for advice as to whether any such rules are consistent or in conflict with these rules or any other rules adopted by the Supreme Court.
      (c) Effective Date. From and after January 1, 1990, no uniform rules or local rules of any circuit, chancery or county court shall be effective unless hereinafter approved by the Supreme Court.
      M.R.C.P. 83 (1989 ed.).
     