THE SUPREME COURT OF MISSISSIPPI NO: 2015-TS SCT MOTION OF APPELLANT, JOHN BROWN, FOR REHEARING, INCLUDING SUPPORTING BRIEF

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1 E-Filed Document Mar :01: CA SCT Pages: 28 THE SUPREME COURT OF MISSISSIPPI NO: 2015-TS SCT JOHN A. BROWN APPELLANT V. COLLECTIONS, INC., AS AUTHORIZED AGENT AND REPRESENTATIVE OF MEMORIAL HOSPITAL AT GULFPORT APPELLEE MOTION OF APPELLANT, JOHN BROWN, FOR REHEARING, INCLUDING SUPPORTING BRIEF Attorney for Appellant: L. Christopher Breard, MSB No BREARD LAW FIRM, LTD B 24 th Avenue Gulfport, MS Telephone: Facsimile: breardlawfirmltd@bellsouth.net

2 THE SUPREME COURT OF MISSISSIPPI NO: 2015-TS SCT JOHN A. BROWN APPELLANT V. COLLECTIONS, INC., AS AUTHORIZED AGENT AND REPRESENTATIVE OF MEMORIAL HOSPITAL AT GULFPORT APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of the case. The presentations are made in order that the Justices of the Supreme Court and/or Judge of the court of appeals may evaluate possible disqualification or recusal: John A. Brown, Appellant/Cross-Appellee L. Christopher Breard Attorney for Appellant/Cross-Appellee Breard Law Firm, Ltd 1317 B 24 th Avenue Gulfport, MS Collections, Inc nd ½ Street Gulfport, MS Memorial Hospital at Gulfport th Street Gulfport, MS David Frazier Attorney for Appellee/Cross Appellant Frazier Law Firm, PLLC P.O. Drawer 1170 Pascagoula, MS ii

3 William V. Westbrook, III (MSB #7119) Attorney for Appellee/Cross Appellant Page, Mannino, Peresich & McDermott, PLLC th Street Gulfport, MS Honorable Robin Alfred Midcalf P.O. Box 1889 Gulfport, MS Telephone: Facsimile: Honorable Michael H. Ward Retired County Court Judge 4806 Harrison Circle Gulfport, MS Telephone: Facsimile: Honorable Lawrence T. Bourgeois, Jr. Circuit Court Judge P.O. Drawer 1461 Gulfport, MS /s/ L. Christopher Breard L. Christopher Breard, MSB No BREARD LAW FIRM, LTD B 24 th Avenue Gulfport, MS Telephone: Facsimile: breardlawfirmltd@bellsouth.net iii

4 TABLE OF CONTENTS Certificate of Interested Persons..ii Table of Contents iii Table of Authorities v I. Reasons for Requesting Rehearing..1 II. Standard of Review 1 III. Argument and Authorities.1 Conclusion...21 iv

5 TABLE OF AUTHORITIES CASES Adams v Mississippi State Oil and Gas Bd., 854 So. 2d 7, 9 (Miss App. 2003)..15 Ann May Enterprises, Inc. v. Caples, 724 So.2d 1127, (Miss. App. 1998) 19 Blackwell v Howell Industries, Inc., 98 So. 3d 463, 465 (Miss. App. 2012) 18 Bowling v Madison County Bd. of Supervisors, 724 So. 2d 431, (Miss. App. 1998)..13 Brown v. Robinson Property Group, L.P., 24 So. 3d 320, (Miss. App. 2009)...17 Bull v U.S., 295 US 247, 55 S. Ct. 695, 79 L. 2d 1421 (1935) 3 Cook v. Wallot, 172 So. 3d Miss. App. LEXIS 245, (Miss. App. 2013)..16 Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 512 So. 2d 897 (Miss. 1987)..12, 16 Fields v. City of Clarksdale, 27 So. 3d 464, 467 (Miss. App. 2010).17 First National Bank of Vicksburg v. Cutrer, 190 So. 2d 883, , (Miss. 1996).14 Great Southern Nat. Bank v. Minter, 590 So. 2d 129 (Miss. 1991)..20 Hobgood v. Koch Pipeline Southeast, Inc., 769 So. 2d 838, 841 (Miss. App. 2000) 19 May v V.F.W. Post No. 2539, 577 So. 2d 372 (Miss 1991).14, 20 Page v Gulf Oil Corp., 775 F. 2d 1311, 1313 r. 2 (5 th Cir.1985).12, 16 Reeves Const. & Supply, Inc. v. Corrigan, 24 So. 3d 1077 (Miss. App 2010).15 Sarris v Smith, 782 So. 2d 721, 723 (Miss. 2001)..1 Smith v. City of Saltillo, 44 So. 3d 438 (Miss. App. 2010) 17 Stathos v. Lee County Rentals, LLC, 119 So. 3d 377 (Miss App. 2013)...15 Sisters of Mary v Denniginan, 730 S.W. 2d 589, 594 (Mo. App. 1987).4 Van Meter v Alford, 774, So. 2d 430, 432 (Miss. 2000) 18 W. Horace Williams Co. v. Federal Credit Co., 21 So. 2d 583, 583 (Miss. 1945)...15 v

6 Wade v Mississippi Real Estate Com n, 97 So.3d 1271 (Miss. Appeals 2012).18 Williams v Delta Regional Medical Center, 740 So. 2d 284 (Miss 1999).12 OTHER AUTHORITIES M.R.A.P. 2 (c) 19 M.R.A.P M.R.A.P , 11 M.R.A.P. 5 (a) 14 M.R.A.P M.R.A.P M.R.C.P. 54 (b).1, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 20, 21 M.R.C.P. 81 (f)...3, 4, 8, 12, 16, 17, 20 M.M.T.R.A. Section M.T.C.A. Section vi

7 MOTION OF APPELLANT JOHN BROWN, FOR REHEARING, INCLUDING SUPPORTING BRIEF The Appellant, John Brown (hereinafter referred to as Brown ) move this Court for Rehearing pursuant to Rule 40 of the Mississippi Rules of Appellant Procedure from the En Banc Order this Court filed February 25, 2016 dismissing Brown s appeal for lack of jurisdiction. I. Reasons for Requesting Rehearing This motion is brought with the full appreciation that such motions are disfavored and should not be used for the purpose of merely repeating points previously argued. Appellants seek this rehearing because of (1) the importance of the interpretation and adverse effect of the ruling by the Court the M.R.C.P. 54 (b) certification by the trial court of Brown s recoupment, (2) the high likelihood of unintended consequences as a result of the interpretation of 54 (b) certification as it relates to a recoupment claim the facts of this case, past precedent and similar cases in the future and (3) to call attention to specific errors of law and fact which plaintiffs believe the opinion contains. II. Standard of Review Questions of Appellate jurisdiction is a question of law and therefore reviewed de novo. Sarris v Smith, 782 So. 2d 721, 723 (Miss. 2001) III. Argument and Authorities 1

8 1. The underlying appeal simply presents the question one as to whether or not the statute of limitations and notice provisions under the Mississippi Tort Claims Act (MTCA) Section and the Medical Malpractice Tort Reform Act Section (MMTRA) Section bars a defense of recoupment to a claim for medical bills from a community/county owned hospital. The recoupment defense/counterclaim is based upon a medical malpractice claim, which would otherwise not be financially feasible to pursue, and also because some of the bills were not fair, reasonable and/or even incurred. It also involves whether or not Brown s appeal was proper and if this Court has jurisdiction to hear this appeal. The importance of this appeal to Brown and other patients similarly situated cannot be overstated. 2. Brown was sued on November 5, 2010 for medical bills resulting from medical treatment rendered to him during emergency room visits to Memorial Hospital from August 21-22, He was sued by Collections, Inc., as Authorized Agent and Representative of Memorial Hospital at Gulfport. Memorial is a county owned hospital. Brown allegedly incurred $45, in medical bills. In order to prevent redundancy of exhibits, Brown refers to the exhibits attached to his Response in Opposition Appellee s Motion to Dismiss Appellants Appeal, filed herein and referred hereinafter to as Brown s Response to Motion to Dismiss which is already before the Court. Collection Motion to Dismiss was previously denied. 3. After a Motion for Additional Time to Answer was filed by Brown s first lawyer, a Default Judgment was taken without notice. On March 22, 2011, Brown filed his Answer asserting as one of his defenses: Defendant has a claim against Plaintiff which exceeds the amount against the Defendant, and Defendant pleads set off and any other defense available to him which would require or permit reduction of Plaintiff s claim by the amount of the 2

9 Defendant claim. (emphasis added) ( Ex. 2 to Brown s Response to Motion to Dismiss) This is by definition a claim for recoupment. 4. Judge Midcalf set aside the Default by Order dated September 23, ( Ex. 5 to Brown s Response to Motion to Dismiss) On December 13, 2011, Brown filed his Motion for Leave to Amend Answer to Complaint to more clearly set forth his defenses. ( Ex. 6 to Brown s Response to Motion to Dismiss) Brown filed his Amended Motion for Leave to Amend Answer to Complaint on February 16, 2012 ( Ex. 7 to Brown s Response to Motion to Dismiss) in order to further clarify the amendment as to the setoff/recoupment defense being pled for defensive purposes only and only to the extent of the amount sought by Memorial, not for offensive purposes. A recoupment defense is a compulsory counterclaim. M.R.C.P. 81 (f) Collections has even referred to the recoupment defense as a counterclaim repeatedly. (County Court, No: D , Doc 11-6, TR October 11, 2012, p. 154) As stated by the U.S. Supreme Court in Bull v U.S., 295 US 247, 55 S. Ct. 695, 79 L. 2d 1421 (1935): A claim for recovery of money so held may not only be the subject of a suit in the Court of Claims, as shown by the authority referred to, but may be used by way of recoupment and credit in an action by the United States arising out of the same transaction. United States v Macdaniel, 7 Pet. 1, 16, 17, 8 L. Ed. 587; United States v Ringgold, 8 Pet. 150, 163, 164, 8 L. Ed In the latter case this language was used: No direct suit can be maintained against the United States; but when an action is brought by the United States, to recover money in the hands of a party, who has a legal claim against them, it would be a very rigid principle, to deny to him the right of setting up such claim in a court of justice, and turn him round to an application to congress. If the right of the party is fixed by the existing law, there can be no necessity for an application to congress, except for the purpose of remedy. And no such necessity can exist, when this right can properly be set up by way of defense, to a suit by the United States (FN9 citation omitted) If the claim for income tax deficiency had been the subject of a suit, any counter demand for recoupment of the overpayment of the estate tax could have been asserted by way of defense and credit obtained, 3

10 notwithstanding the statute of limitations had barred an independent suit against the government therefor. This is because recoupment is in the nature of a defense arising out of some feature of the transaction upon which the plaintiff s action is grounded. Such a defense is never barred by the statute of limitations so long as the main action itself it timely. Id , (emphasis added) Clearly Brown was entitled to plead the defense/counterclaim of recoupment and the trial court erred in denying that defense. While recoupment is a defense, it is referred to as a counterclaim that cannot collect an affirmative judgment or be used for offensive purposes. Also see Sisters of Mary v Denniginan, 730 S.W. 2d 589, 594 (Mo. App. 1987) This Court has even acknowledged by rule a plea of recoupment is a compulsory counterclaim. M.R.C.P. 81 (f). 5. Collections filed a Response in Opposition to Plaintiff s Motion for Leave to File Amended Answer and Counterclaim and Alternative Motion to Dismiss Time Barred Counterclaim with Prejudice on January 13, ( Ex. 8 to Brown s Response to Motion to Dismiss) Collections filed its Response to the Amended Motion for Leave to Amend Answer to Complaint on March 8, ( Ex. 9 to Brown s Response to Motion to Dismiss). 6. On June 28, 2112, the trial court ruled from the bench that it was denying Browns Motion to Amend. ( Ex. 10 to Brown s Response to Motion to Dismiss) The court did state my ruling can certainly be appealed. No order was actually entered before Brown filed Defendant s Motion to Reconsider Plaintiff s (sic) Motion to Amend Answer and/or for Clarification of the Court s Ruling. ( Ex. 11 to Brown s Response to Motion to Dismiss) Collections then filed Plaintiff s, Collections Inc. s, Pleading in Opposition to Defendant s Motion to Reconsider on October 1, ( Ex. 12 to Brown s Response to Motion to Dismiss) Brown filed his Memorandum in Support of his Motion to Reconsider on October 8, 2012 ( Ex. 13 to Brown s Response to Motion to Dismiss) 4

11 7. The trial court heard the Motion to Reconsider on October 11, 2012 ( Ex. 14 to Brown s Response to Motion to Dismiss) Collections lawyer argued allowing the recoupment defense would create a slippery slope because everyone who owes a debt to Memorial will claim the defense. ( Ex. 16 to Brown s Response to Motion to Dismiss). Mr. Westbrook acknowledged the MTCA is similar to and modeled after the Federal Tort Claims Act. ( FTCA ) ( Ex. 17 to Brown s Response to Motion to Dismiss) There were also discussions of Memorial being added as a party if the court found it necessary to asset the recoupment defense. ( Ex. 18 to Brown s Response to Motion to Dismiss) 8. The trial court ultimately denied Browns Motion to Amend, ( Ex. 19 to Brown s Response to Motion to Dismiss) as well as his challenge and inquiry into the fairness and reasonableness of the medical charges and whether they were accurate. The court clearly acknowledged whoever appeals can draw from the record of both the June 28 th hearing and the October 11, 2012 hearing. ( Ex. 19 to Brown s Response to Motion to Dismiss) The trial court was clear it wanted the ruling to be final, so it could be appealed when it was stated: Mr. Westbrook: Okay. Well, that has to do with an amendment to the complaint. But are you also ruling now under Rule 56 that this is an adjudication on his ability to assert that defense? The Court: Well, I have to do that. Because that s how we move forward. That gives him finality on the issue so that we can move forward, and he can either file an interlocutory appeal or we move under the answer as it stands. Mr. Westbrook. And that s my point. I want to make sure that we do have a final ruling when the Court reached the merit on that. Because you can reach it under Rule 15 because this was his motion to reconsider your ruling on denying this motion to reconsider. That s what the motion was. And you ve denied the motion to amend, which can be denied on the basis of futility of the statute of limitations. Or you also have the authority to say I m going to treat this as a 5

12 Rule 56 motion, and to that extent this issue is presented on the merits, this is a final judgment on that issue. The Court: Well Mr. Westbrook: I just want to make sure that when we get up there the Supreme Court doesn t say this isn t a final ruling on this issue. The Court: In order for I believe in order for you to take an interlocutory appeal, Mr. Breard, it has to be a final ruling on that issue. And that was my intent to give you a final ruling on that issue so that you could take that appeal. I think that it s certainly important enough and compelling enough that they would want to review that issue. Especially if we don t have enough controlling authority out there. And neither one of you could find a lot of controlling authority that was specific on point in Mississippi. Mr. Breard: Yes, ma am. Mr. Westbrook: And I think what we would want to do, Judge, if I might, is maybe also have belt and suspenders approach, certify it under Rule 54 (b), too. As the Court saying I m certifying this issue and here is also my ruling on the merits of this issue. The Court: Well, as long as that doesn t impact let me see. Mr. Westbrook: 54 (b) is on all the issues of the case, and that clearly fits. See otherwise, he s got to take an interlocutory appeal, which is a discretionary petition. And they may or may not grant that. So we may not get the answer. I believe if you certify it under Rule 54 (b) that gives the Court an additional basis. The Court: 54 (b). You said, (b), right? Mr. Westbrook: B as in boy. Mr. Westbrook: Well, 54 is the certification process that can be the alternate basis for the Court to address it besides an interlocutory appeal. Mr. Breard: I just want to get my case heard by the appellate court. The Court: Well, that would do it I mean, all the parties, it would be a final judgment with the issues that Mr. Westbrook: What I m getting at is we need to put the certification that the rule describes in the ruling hat I m going to draft for the Court if we want to have that additional basis for the Supreme Court to assume jurisdiction over the appeal. 6

13 The Court: I m not certain that that has I know on that issue it does, but Well, if you don t see any reason to object to that, you know. Because that s what makes it interlocutory, if we didn t do that. Mr. Westbrook: If you didn t certify it the Supreme Court has discretion to take or not to take the appeal. If you want to make sure they consider it, I think you certify it under Rule 54 (b) and they still have discretion not to take it, but 54 (b) is you asking the Supreme Court to answer the question that I ve attempted to answer. And I think that s what you want, and I just want to make sure that s clear. The Court: Well, that is what I want, but I guess I didn t read the rule to and even then on the other case that I did that if we didn t certify it under that rule that they wouldn t hear it. I assumed that it would be, and it is, an interlocutory appeal on those issues. But if that will get it heard, if we think that that will get it heard, then we will go ahead and certify it under 54 (b). Mr. Westbrook: All right. And that s all I m getting at. I will put a 54 (b) certification in there, as the rule requires, and it will be just the issues of, you know, the scope of the tort claim act The Court: That s basically because of the Memorial Hospital-Collections, Inc., a multiple party issue. Mr. Westbrook: I don t understand. The Court: Well, I mean, 54 (b) is involving multiple claims and multiple parties. So, all the claims that he s made and the fact that he he for the record being Mr. Breard- - and wanting to include Memorial Hospital and the issue that is inherent in the argument that even if he brought in Memorial Hospital, my ruling would be the same. Mr. Westbrook: Well, may I suggest this, you re looking at the rule and I m operating off of memory, but what I think you can do in that rule is certify a question to the Supreme Court, or multiple questions, and the questions would be something like, assuming that a community hospital files a collection action for unpaid hospital bill after the statute of limitations has run under the Mississippi tort claims act The Court: Well, I think it s his appeal. So he has to Mr. Westbrook: Well, again, if we want to certify a question, we ve got to frame the question. The Court: Well, that s why I m saying I don t agree. But if he doesn t disagree, I will certify it under Rule 7

14 54 (b), but I don t agree that he has to file an interlocutory appeal under Rule 54 (b). Mr. Westbrook: I agree with you on that. The Court: Okay. But if he doesn t disagree then Mr. Breard: I mean, I think 54 (b), if it s final judgment then it s one that I can take an appeal from. The Court: You certainly can. But we then we re being specific, as you re pointing out, Mr. Westbrook, in the question that Mr. Breard: It doesn t have to I don t think the question has got to be I think the order speaks for itself. The Court: Right. Well, yes. Because it will be specific as to my ruling. Mr. Westbrook: Well, what the rule gives you the ability to do is certify the question, and then the trial court answered the question you know, in favor of the hospital and Collections, Inc., and he is asking the Court was that the correct answer. (emphasis added) ( Ex. 20 to Brown s Response to Motion to Dismiss) Mr. Westbrook and the trial court clearly wanted the issue to be final and to prevent the Supreme Court from ultimately finding it was not a final judgment on that issue and possibly reject an appeal as the Court has done. It was clearly Westbrook s idea to further be assured this was final judgment by bringing up the M.R.C.P. 54 (b) certification. The court specially acknowledged it was a final appealable judgment. The trial judge and Westbrook both agreed under a Rule 54 (b) certification and an interlocutory appeal was not required. Rule 54 (b) clearly includes counterclaims which should include a recoupment counterclaim defense. M.R.C.P. 81 (f). This Court erred in assuming recoupment was merely a defense. Brown is unable to find any authority that states denial of a recoupment counterclaim is an interlocutory order. 9. The trial court entered its Memorandum Opinion denying Defendant s Motion to Reconsider on December 19, 2012 ( Ex. 21 to Brown s Response to Motion to Dismiss). The trial court specifically wanted the judgment certified as a final judgment pursuant to M.R.C.P. 54 8

15 (b). ( Ex. 21 to Brown s Response to Motion to Dismiss) The Court instructed Collections to draft the Final Judgement accordingly. The Partial Final Judgment on the Memorandum Opinion was entered on January 7, 2013 certifying the judgment as a M.R.C.P. 54 (b) Partial Final Judgment ( Ex. 22 to Brown s Response to Motion to Dismiss) 10. Defendant, Brown noticed his appeal to the Mississippi Supreme Court on January 23, 2013, some 16 days after the entry of the Partial Final Judgment with the M.R.C.P. Rule 54(b) certification by filing the Notice of Appeal in County Court case. This was well within the 21 day requirement for an Interlocutory Appeal or Direct Appeal, if it was an interlocutory appeal. The Notice of Appeal was filed no later than 16 days after the County Court judgement was entered. While the Notice of Appeal was to the Mississippi Supreme Court ( Ex. 23 to Brown s Response to Motion to Dismiss), the appeal by rule was sent to the Circuit Court of Harrison County, First Judicial District, according to the clerk, because the appeal was from a M.R.C.P. 54 (b) partial final judgment. The clerk did not forward the Notice of Appeal to the Supreme Court as noticed. Collections filed no cross appeal on any issue. 11. The appeal was briefed and argued before the Honorable Michael Ward, who was appointed temporary Circuit Court Judge to fill the vacancy left by Judge Gargiulo after he was appointed U.S. Magistrate. Brown filed his Appellant s Brief with the Circuit Court on May 12 th, 2014 and refiled on July 7, 2014 correcting only the caption. ( Ex. 24 to Brown s Response to Motion to Dismiss) Collections filed its Brief of Appellee on June 25, ( Ex. 25 to Brown s Response to Motion to Dismiss) Brown filed his Reply Brief of Appellant of the July 9, ( Ex. 26 to Brown s Response to Motion to Dismiss) 12. The Circuit Court, sitting as an appellate court, heard oral argument and entered its Opinion on December 3, 2014 affirming the trial court s ruling. ( Ex. 27 to Brown s 9

16 Response to Motion to Dismiss) Subsequent thereto Collections, Inc., filed its Motion to Alter or Amend Judgment to Include Sanctions Award to Plaintiff Appellee. ( Ex. 28 to Brown s Response to Motion to Dismiss) Collections raised no jurisdictional questions of the Circuit Court, sitting as an appellate court, at that time. 13. Brown filed his Motion to Alter or Amend Judgment on December 12, ( Ex. 30 to Brown s Response to Motion to Dismiss) to include, out of an abundance of caution, the M.R.C.P. 54 (b) certification of a final judgment, as the trial court had done. On December 17, 2014, Brown filed his Response to Collections Inc. Motion to Alter or Award Judgment to Include Sanctions Award to Plaintiff Appellee. ( Ex. 31 to Brown s Response to Motion to Dismiss 14. Collections filed its Response in Opposition to Brown s Motion to Alter or Amend Judgment, bringing up for the first time questions as to the propriety of the trial court s M.R.C.P. 54 (b) certification and the Circuit Court s Appellate jurisdiction. ( Ex. 32 to Brown s Response to Motion to Dismiss) Brown filed his Rebuttal to Collections, Inc. s, Response in Opposition to Browns Alternative Motion to Alter or Amend Judgment. ( Ex. 33 to Brown s Response to Motion to Dismiss) The trial court and parties unquestionably wanted a final appealable judgment. The Circuit Court, sitting as an appellate court, filed its Amended Judgment and again certified the issue as a final judgment pursuant to M.R.C.P. 54 (b). ( Ex. 34 to Brown s Response to Motion to Dismiss) 15. Brown filed his Notice of Appeal from the Circuit Court to this Honorable Court on December 31, 2014 ( Ex. 36 to Brown s Response to Motion to Dismiss) and Collections filed its Notice of Cross Appeal pursuant to M.R.A.P. Rule 4 and M.R.C.P. 54 (b), if applicable. Collections further filed a Petition pursuant to M.R.A.P. Rule 5, in Supreme Court No M- 10

17 00092-SCT. Collections filed its Motion to Dismiss Brown s Appeal, in Supreme Court No TS The issues in Supreme Court No M SCT and in Supreme Court No TS are inseparably intertwined as is evident from the pleadings. Collections Inc., in its Petition Pursuant to M.R.A.P. Rule 5, requests: alternatively Collections moves the Court under M.R.A.P. Rule 2 and M.R.A.P. Rule 5 for leave to pursue an interlocutory review of the Circuit Court and County Court interlocutory rulings, if not properly certified pursuant to M.R.C.P. Rule 54 (b) and if that petition is granted, for a ruling affirming the Circuit Court s judgment affirming the County Court s interlocutory appeal ruling on the merits except the Circuit Court s ruling denying Collections sanctions motion, which should be either reversed and rendered by this court or vacated and remanded to the County Court for de novo consideration on the merits (Collections Petition, Sup. Ct. Ms., Case No: 2015-M SCT, Motion No. 298) Collections obviously wanted these issues addressed by this court one way or the other. 16. A three judge panel comprised of Justices Randolph, Kitchens and King entered an Order on April 1, 2015 in 2015-TS stating in part: Appellee asks that this appeal be dismissed due to improper certification under M.R.C.P. Rule 54 (b). After due consideration, we find the Motion to Dismiss Appellant s Appeal is not well taken and should be denied. Appellee did not ask for reconsideration of this ruling. This appeal in 2015-TS was briefed by both parties. Again, Collections raised the issue of the lack of jurisdiction due to an improper M.R.A.P. 54 (b) certification Brown s rebuttal brief asserted the issue of lack of jurisdiction had been decided by the Court and that Collections had failed to ask for reconsideration and/or clarification within 14 days pursuant to M.R.A.P. 27 and this revisiting the issue now was barred. 11

18 17. At Oral Argument, a new three judge panel was skeptical that the earlier three judge panel s finding on jurisdiction could bind the Court. This Court issued its decision on February 25, 2016 Dismissing Brown s Appeal for lack of jurisdiction. 18. Brown would show the Court has misinterpreted the law and/or facts as it related to this appeal and this Court does in fact have jurisdiction and should fully hear this matter in the interest of justice and judicial economy. 19. In Williams v Delta Regional Medical Center, 740 So. 2d 284 (Miss 1999) The Mississippi Supreme Court held without a Rule 54 (b) certification the appeal is interlocutory even if the order appears to adjudicate separable portions of the claim. Williams involved a MTCA claim that was dismissed based upon the statute of limitations however it did not dispose of all the claims. Here we have a proper 54 (b) certifications unlike Williams disposing of all of Brown s claims as recoupment shall refer to compulsory counterclaim. M.R.C.P. 81 (f). This is not merely an affirmative defense such as a statute of limitations affirmation defense. 20. Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 512 So. 2d 897 (Miss. 1987) cited by Collections is distinguishable from the case sub judice. The court granted summary judgment against Cox on only one court of a three count counterclaim and therefore ruled the appeal was interlocutory. The denial of Brown s recoupment defense and his ability to contest the reasonableness, accuracy and necessity of the medical charges gutted his only real defense and his counterclaim in recoupment. The Court in Cox also cited the 5 th Circuit which referenced Page v Gulf Oil Corp., 775 F. 2d 1311, 1313 r. 2 (5 th Cir.1985): A 54 (b) certification should be reserved for a case where a delay in the appeal might result in prejudice to a party. The rule was adopted to avoid injustice, not to overturn the settled rule against 12

19 piecemeal appeals. (emphasis added) (Citations omitted) Certainly Brown would suffer prejudice and a grave injustice should this appeal be denied. BROWNS APPEAL WAS APPROPRIATE AND THE TRIAL COURT AND CIRCUIT COURT, SITTING AS AN APPELLATE COURT, CORRECTLY CERTIFIED THE PARTIAL JUDGMENT PURSUANT TO M.R.C.P. 54 (b) BOTH IN THE COURTS JUDGMENT AND IN THE DETAILED ANALYSIS FOUND IN THE TRIAL COURTS OPINION. 21. Recoupment is defined by Black s Law Dictionary as follows: 1. The recovery or regaining of something, esp. expenses. 2. The withholding, for equitable reasons, of all or part of something that is due 3. Reduction of a plaintiff s damages because of a demand by the defendant arising out of the same transaction. 4. The right of a defendant to have the plaintiffs claim reduced or eliminated because of the plaintiff s breach of contract or duty in the same transaction. 5. An affirmative defense alleging such a breach. 6. Archaic. A counterclaim arising out of the same transaction or occurrence as the one on which the original action is based. (emphasis added) (Black s Law Dictionary 70 (Deluxe 9th ed. 2009). 22. Silman v Nguyen, 22 So. 3d 1173 (Miss. 2009) cited by this Court is distinguishable from the case sub judice. First there was no 54 (b) certification. It was an appeal from the trial court granting a new trial. Secondly there was no indication the notice of appeal was filed within 21 days of the order. 23. Brown noticed his appeal to the Mississippi Supreme Court. ( Ex. 23 to Brown s Response to Motion to Dismiss) This notice was filed with the County Court within 21 days of the trial s court partial judgment certified under M.R.C.P. 54 (b). In fact, it was filed within 16 days. The appeal was retained by Circuit Court rather than forwarding it to the Supreme Court because it was a 54 (b) partial final judgment, and was not at the instance of Brown. This Court has repeatedly held that an appeal to the wrong court remains effective as long as the Notice of Appeal was timely filed. See Bowling v Madison County Bd. of Supervisors, 724 So. 2d 431, 13

20 (Miss. App. 1998) The court in Bowling cited First National Bank of Vicksburg v. Cutrer, 190 So. 2d 883, , (Miss. 1996) as follows: An appeal to the Supreme Court shall not be dismissed for want of jurisdiction because of a defect in the application for appeal, or in the bond, or because an insufficient amount was paid to prepay the costs or because of any failure by an officer to comply with the requirements of law in reference to appeals but all defects may be cured by amendment so as to prefect the appeal and obtain the judgment of the Supreme Court in the case; but the court may dismiss an appeal for failure to the appellant to do, within reasonable time, what may be necessary to prefect his appeal. (Citations omitted) (emphasis added) The court in Bowling took the appeal because the record was clear and it decided to proceed to trial before the appeal was heard would not serve the ends of justice. (emphasis added) Id M.R.A.P. 5 (a) regarding the filing of the petition for permission to file an interlocutory appeal does not use the word shall. Brown would show the filing of his Notice of Appeal to the Supreme Court through the County Court should be sufficient based upon the case law cited herein. 25. In May v V.F.W. Post No. 2539, 577 So. 2d 372 (Miss 1991), this court took an appeal of a summary judgment which the court determined fell short of what was required by M.R.C.P. 54 (b). The court took jurisdiction of the appeal because the remaining defendant was insolvent and it would be unfair and not serve the interest of justice and efficient use of the judicial resources to go to trial against an insolvent defendant before resolving the appeal regarding the V.F.W. Brown would certainly urge this court to adopt the logic of May as it would not serve the ends of justice or judicial economy to force Brown to trial without a ruling on his recoupment defense/compulsory counterclaim. 14

21 26. Adams v Mississippi State Oil and Gas Bd., 854 So. 2d 7, 9 (Miss App. 2003) held that filing a timely Notice of Appeal in the wrong court (entity) preserves the substantive issues of judicial review. In W. Horace Williams Co. v. Federal Credit Co., 21 So. 2d 583, 583 (Miss. 1945) held that an equity matter appealed erroneously from the county court to circuit court should have transferred to chancery rather than dismissed. Brown would submit if the appeal was wrongly heard in the Circuit Court it should be transferred to either the Court of Appeals or the Supreme Court. 27. The Miss. Court of Appeals in Stathos v. Lee County Rentals, LLC, 119 So. 3d 377 (Miss App. 2013) allowed a M.R.C.P. 54 (b) certifications on a summary judgment on the issue of possession, since the issue of possession was severable from the breach of contract claim for damages. The trial court made a clear and unambiguous Rule 54 (b) certification. Id 381. Such was the case with the trial court and Circuit Court in the case sub judice. The record is clear and the 54 (b) certification was unambiguous. The issues are separable but arise out of the same transaction. 28. The Court of Appeals in Reeves Const. & Supply, Inc. v. Corrigan, 24 So. 3d 1077 (Miss. App 2010) noted the balancing of factors for a 54 (b) certifications is one for the trial judge. If a commonality of operative facts underlies the claims and defenses of a case, Rule 54(b) certification is not justified. Id In the case sub judice there are no commonality of a facts relative to the recoupment defense for medical negligence and Collections claim for the bill other than they both arise out of the medical treatment. They do however arise out of the same transaction. The trial court and Circuit Court were very clear about the propriety of the 54 (b) certification and the need for the question to be resolved on appeal by the Supreme Court, which is where we are now. 15

22 29. The Court of Appeals in Cook v. Wallot, 172 So. 3d Miss. App. LEXIS 245, (Miss. App. 2013) found a Rule 54 (b) dismissal relating to vicarious liability was appealable as a final judgment and not interlocutory. The issues were not unreasonably intertwined with the other allegations. Brown s recoupment/compulsory counterclaim for medical negligence are not unreasonably intertwined with the Collections claims for the bill but are a compulsory counterclaim. M.R.C.P. 81 (f) 30. This Mississippi Supreme Court in Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 512 So. 2d 897, 900 (Miss. 1987) noted: In Page v Gulf Oil Corp. 775 F. 2d 1311, 1313 r. 2 (5 th Cir.1985), the Court of Appeals for the 5 th Circuit stated: A 54 (b) certification should be reserved for a case where a delay in the appeal might result in prejudice to a party. The rule was adopted to avoid injustice, not to overturn the settled rule against piecemeal appeals. (Citations omitted) Certainly Brown should be allowed to challenge the reasonableness and necessity of the bills and whether the charges were actually correct. Without the recoupment defense/compulsory counterclaim, Brown has no viable defense and would be forced to appeal a significant adverse judgment and post an expensive appeal bond to have this issue of great importance finally decided. He would then likely face a new trial. He would be greatly prejudiced if the appeal were to be denied. Brown and Collections both knew this issue would not be resolved until finally reviewed by the Court of Appeals or Supreme Court. 31. Both the trial court and the Circuit Court certified their judgment under M.R.C.P. Rule 54 (b). The Trial Court set forth in its Order and its Opinion from the bench a lengthy analysis as to why this should be considered a final judgment pursuant to M.R.C.P. 54 (b). Brown s original Answer set forth generally a recoupment defenses in his Second Defense. His 16

23 Motion to Amend was to clarify the defense of recoupment/compulsory counterclaim based on the misdiagnosis of his stroke. The treatment for the stroke was the basis of the Collections lawsuit to collect the bill for services. The recoupment claim was for defensive purposes only. Why should Brown have to pay for negligent treatment or treatment not provided? This recoupment defense is undeniably a compulsory counterclaim. (M.R.C.P. 81 (f)) This is a fact of law this Honorable Court overlooked. A recoupment defense is not merely an affirmative defense. THE MISSISSIPPI SUPREME COURT HAS CONTINUOUSLY HELD THAT A TIMELY NOTICED APPEAL WILL NOT BE DISMISSED FOR DEFICIENCIES ABSENT A FOURTEEN DAY NOTICE TO CURE THE DEFICIENCIES. 32. In Brown v. Robinson Property Group, L.P., 24 So. 3d 320, (Miss. App. 2009) the court held a workers compensation appeal which was timely noticed would not be dismissed even though the appeal was not pursued for over a year and no designation of record was made when the deficiencies were timely cured after a fourteen day notice to cure the deficiencies was received form the court. 33. In another case a Circuit Court s dismissal of an appeal was reversed holding an Appellant is entitled to a fourteen day notice of deficiencies even if the costs have not been paid. Fields v. City of Clarksdale, 27 So. 3d 464, 467 (Miss. App. 2010) 34. The Court of Appeals in Smith v. City of Saltillo, 44 So. 3d 438 (Miss. App. 2010) held the circuit court denied appellant due process by dismissing his appeal of a sovereign immunity issue under the M.T.C.A. because appellant failed to notice the parties of record of the appeal, secure the record form the lower court and obtain a cost bond. The Court held a fourteen day notice of correct deficiencies was required before dismissal. 17

24 35. The Court of Appeals in Blackwell v Howell Industries, Inc., 98 So. 3d 463, 465 (Miss. App. 2012) held a fourteen day notice to cure deficiencies was required before dismissal of an appeal for failure to file a brief and then when the brief was filed it was also found to be deficient. Lesser Sanctions rather than dismiss should have been considered before dismissal based upon multiple deficiencies. The court found a fourteen day notice of deficiency must be given before dismissal for failure to file a brief in Wade v Mississippi Real Estate Com n, 97 So.3d 1271 (Miss. Appeals 2012). 36. If there is an error in an appeal from County to Circuit Court, the Court must also issue fourteen day warning to correct deficiencies for failure to designate the record and estimate the costs before dismissing the appeal, otherwise there is a denial of due process. Van Meter v Alford, 774, So. 2d 430, 432 (Miss. 2000). There should have been a notice sent if the Notice of Appeal was to the wrong court. 37. Brown s Notice of Appeal was to the Supreme Court but the County Court Clerk sent it to the Circuit Court due to the 54 (b) certification. While Brown believes the appeal was properly taken this matter to the Circuit court based upon the detailed M.R.C.P. 54 (b) certification and M.R.C.P. 81 (f) acknowledging a recoupment defense is a compulsory counterclaim, his appeal must not be dismissed or stayed if he failed to appeal to the proper court as his appeal was timely noticed, whether it be a direct appeal or interlocutory appeal. At no time has Brown received any notice to correct deficiencies, other than to correct the caption in Circuit Court which was promptly corrected, and therefore dismissal of his appeal at his stage would be a denial of due process. THIS COURT MAY SUSPEND THE RULES ON CASES WHERE A TIMELY NOTICE OF APPEAL IS FILED. 18

25 38. It should be clear that Brown timely filed his notice of appeal within twenty one days of the entry of the M.R.C.P. 54 (b) partial final judgment. Therefore the appeal was timely noticed whether a direct appeal or an interlocutory appeal. The County Court Clerk should have forwarded the Notice of Appeal to the Supreme Court rather than the Circuit Clerk if the 54 (b) certification was improper. 39. The Court of Appeals in Ann May Enterprises, Inc. v. Caples, 724 So.2d 1127, (Miss. App. 1998) determined the trial court order s did not technically conform to the proper procedure for the 54 (b) certification and that the appeal was from an order that was interlocutory in nature, but it exercised in its authority under M.R.A.P. 2 (c) to suspend the rules and reach the merits of the technically interlocutory appeal. M.R.A.P. 2 (c) allows for Suspension of the Rule and states: In the interest of expediting decision, or for other good cause shown, the Supreme Court or the Court of Appeals may suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction; provided, however, in civil cases the time for taking an appeal as provided in Rules 4 or 5 may not be extended. (emphasis added) It would be difficult to find better cases than has been shown in the case sub judice for suspension of the rules. The Notice of Appeal was taken within the time provided for by M.R.A.P. 5. There may have been deficiencies but the Notice was field within the time provided by M.R.A.P The Court of Appeal in Hobgood v. Koch Pipeline Southeast, Inc., 769 So. 2d 838, 841 (Miss. App. 2000) held the court may suspend the rules and allow an interlocutory appeal even though no petition for interlocutory appeal was ever filed, and no M.R.C.P. 54 (b) certification was obtained but a timely notice of appeal was filed. The wrong form of appeal 19

26 was filed within the correct time for the correct appeal. Such would unquestionably apply to the case in the case sub judice. 41. The Mississippi Supreme Court in Great Southern Nat. Bank v. Minter, 590 So. 2d 129 (Miss. 1991) found that although a motion for summary judgment is an interlocutory order, they chose to address the issue since it was before them on cross appeal for clarity and guidance to the trial court. Clarity is certainly demanded in the case sub judice. 42. This case, in the interest of justice and judicial economy, demands reconsideration of the jurisdiction issue and due to a misapplication of the law particularly as it relates to recoupment being merely an affirmative defense and not a compulsory counterclaim, as stated in M.R.C.P. 81 (f). Recoupment may not be used for offensive purposes, only to extinguish or reduce the claim of Collections. 43. Here Collections has taken both a direct cross appeal and an interlocutory appeal. Both seek to address the underlying issue of the availability of recoupment as a defense under the MTCA and the MMTRA. Therefore this court has a myriad of compelling reasons to decide this important case of first impression that will effect more than just Brown and not subject the parties to a second appeal and Brown face the burden of an appeal bond. 44. The Mississippi Supreme Court in May v V.F.W. Post No. 2539, 577 So. 2d 372, 375 (Miss. 1991) allowed what was not a properly certified 54 (b) final judgment on summary judgment to be appealed because the record was clear and it would not favor judicial efficiency for the plaintiff to proceed against the remaining insolent defendant before the appeal was heard. The same is true in the case sub judice. It would be inherently unfair for Brown to proceed to trial, stripped of his recoupment defense or the ability to challenge the reasonableness, necessity and accuracy of the charges. 20

27 CONCLUSION Brown would show for the reasons cited herein his appeal should not be dismissed for lack of jurisdiction. The merits of the trial courts Rule 54 (b) partial judgment on Brown s recoupment defense/compulsory counterclaim should be reconsidered and his appeal accepted. RESPECTFULLY SUBMITTED, this the 10 th day of March, Breard Law Firm, LTD /s/ L. Christopher Breard 1317 B 24 th Avenue L. Christopher Breard, MSB # 4352 Gulfport, MS Attorney for Appellate Telephone: /Facsimile: breardlawfirmltd@bellsouth.net 21

28 CERTIFICATE OF SERVICE I, L. Christopher Breard, attorney for the Appellate, John A. Brown, certify that I have this day filed and served a copy of this Motion for Reconsideration by MEC which sent notification to the following: Attorney for Appellee David Frazier William Westbrook, III Frazier Law Firm, PLLC Page, Mannino Peresich & McDermott, PLLC P.O. Drawer th Street Pascagoula, MS Gulfport, MS Telephone: Telephone: Facsimile: Facsimile: RESPECTFULLY SUBMITTED, this the 10 th day of March, John A. Brown Breard Law Firm, Ltd B 24 th Avenue Gulfport, MS Telephone: Facsimile: breardlawfirmltd@bellsouth.net /s/ L. Christopher Breard L. Christopher Breard, MSB # 4352 Attorney for Appellant 22