E-Filed Document Dec 1 2017 18:19:55 2016-CA-01082 Pages: 17 IN THE MISSISSIPPI, SUPREME COURT CASE NO. 2016-CA-01082 TONY L. AND LINDA SMITH APPELLANTS VS. JOHN HENDON, UNION PLANTERS BANK, NA FIRST AMERICAN REAL ESTATE SOLUTIONS OF TEXAS, L.P., SUCCESSOR IN INTEREST TO FIRST AMERICAN FLOOD DATA SERVICES, INC., CENTURY 21 MASELLE & ASSOCIATES, INC., CINDY SMITH, COLDWELL BANKER GRAHAM & ASSOCIATES, INC., CINDY LAI, MARK S. BOUNDS REALTY PARTNERS, INC., DONALD CONN, JR., AND WAYNE C. WILLIAMS APPELLEES BRIEF OF APPELLEES COLDWELL BANKER GRAHAM & ASSOCIATES, INC. AND CINDY LAI ORAL ARGUMENT NOT REQUESTED ON APPEAL FROM THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI FIRST JUDICIAL DISTRICT Lee Ann Thigpen (MSB #100229) Jim Warren (MSB #6966) CARROLL WARREN & PARKER PLLC 188 East Capitol Street, Suite 1200 Post Office Box 1005 Jackson, Mississippi 39215-1005 Telephone: 601-592-1010 Facsimile: 601-592-6060 i
IN THE MISSISSIPPI, SUPREME COURT CASE NO. 2016-CA-01082 TONY L. AND LINDA SMITH APPELLANTS VS. JOHN HENDON, UNION PLANTERS BANK, NA FIRST AMERICAN REAL ESTATE SOLUTIONS OF TEXAS, L.P., SUCCESSOR IN INTEREST TO FIRST AMERICAN FLOOD DATA SERVICES, INC., CENTURY 21 MASELLE & ASSOCIATES, INC., CINDY SMITH, COLDWELL BANKER GRAHAM & ASSOCIATES, INC., CINDY LAI, MARK S. BOUNDS REALTY PARTNERS, INC., DONALD CONN, JR., AND WAYNE C. WILLIAMS APPELLEES CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record, in accordance with Rules 28(1)(1) and 28(c) of the Mississippi Rules of Appellate Procedure, certifies that the following persons have an interest in the outcome of this case. These representations are made in order that the Court may evaluate possible disqualification or recusal. 1. Tony L. Smith and Linda N. Smith Appellants; 2. John Hendon Defendant (no appearance entered); 3. Union Planters Bank and its successors Defendant, but not Appellee; 4. First American Real Estate Solutions of Texas, LP., Successor in Interest to First American Flood Data Services, Inc. Defendant, but not Appellee; 5. Century 21 Maselle & Associates, Inc. Defendant, but not Appellee (in arbitration); 6. Cindy Smith Defendant, but not Appellee (in arbitration); ii
7. Coldwell Banker Graham & Associates, Inc. Appellee; 8. Linda Graham, principal broker of Coldwell Banker Graham & Associates, Inc.; 9. Cindy Lai Appellee; 10. Mark S. Bounds Realty Partners, Inc. Appellee; 11. Donald Conn, Jr. Appellee; 12. Wayne C. Williams Appellee; 13. Donald W. Boykin Attorney for Appellants; 14. Jim Warren attorney for Appellees, Coldwell Banker Graham & associates, Inc. and Cindy Lai; 15. Lee Ann Thigpen Attorney for Appellees, Coldwell Banker Graham & associates, Inc. and Cindy Lai; 16. Robert J. Curtis Attorney for John Hendon as Defendant (no appearance entered herein); 17. Troy Odom. Blair & Bondurant Attorney for Donald Conn, Jr.; 18. Joe S. Deaton, III Attorney for Century 21 Maselle & Associates, Inc., Cindy Smith (Defendants in arbitration), Wayne C. Williams and Mark S. Bounds Realty Partners, Inc. (Appellees); 19. Michael Chad Moore Attorney for Wayne C. Williams and Mark S. Bounds Realty Partners, Inc. Appellees; and 20. Honorable Winston Kidd- Hinds County Circuit Judge. Dates: December 1, 2017 iii
iv /s/ Lee Ann Thigpen Lee Ann Thigpen Attorney of Record for Coldwell Banker Graham & Associates and Cindy Lai
TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS.. ii TABLE OF CONTENTS... v TABLE OF AUTHORITIES.. vi STATEMENT REGARDING ORAL ARGUMENT... vii I. INTRODUCTION... 1 II. STATEMENT OF THE CASE 1 III. STANDARD OF REVIEW. 3 IV. ARGUMENT.. 4 A. The Appellants inaction reflects a clear record of delay... 5 B. Explicit consideration of lesser sanctions is not required, however, the trial court previously denied two motions to dismiss for failure to prosecute, while admonishing Appellants to push their case. This is the equivalent of lesser sanctions.... 7 C. A finding of prejudice is not required, but prejudice can be implied from the delay 8 V. CONCLUSION... 9 CERTIFICATE OF SERVICE.. 10 CERTIFICATE OF SERVICE ON CIRCUIT COURT JUDGE... 10 v
TABLE OF AUTHORITIES Am. Tel. & Tel. v. Days Inn of Winona 720 So. 2d 178 (Miss. 1998).. 3 Collins v. Koppers, Inc. 59 So. 3d 582 (Miss. 2011) 7 Hensarling v. Holly 972 So. 2d 716 (Miss. Ct. App. 2007) 4 Holder v. Orange Grove Med. Specialties, P.A. 54 So. 3d 192 (Miss. 2010) 3, 4, 5, 6, 7, 8 Holmes v. Grisby No. 2015-CA-01771-COA, 2015 WL 13446778 (Miss. Ct. App. Oct. 27, 2015) 6, 7, 8 Manning v. King s Daughters Med. Ctr. 138 So. 3d 109 (Miss. 2014)... 6 Rogers v. Kroger Co. 669 F.2d 317 (5th Cir. 1982).. 4 State ex rel. Hood v. Louisville Tire Ctr. Inc. 204 So. 3d 1250 (Miss. 2016). 4 Wallace v. Jones 572 So. 2d 371 (Miss. 1990)... 4 Watson v. Lillard 493 So. 2d 1277 (Miss. 1986). 4 Rules: Miss. R. Civ. P. 41... vii, 4, 6, 7, 8 vi
STATEMENT REGARDING ORAL ARGUMENT Pursuant to Mississippi Rule of Appellate Procedure 34, Appellees Coldwell Banker Graham and Associates, Inc. and Cindy Lai respectfully submit that oral argument is not necessary in this appeal. The primary issue before the Court is a basic and well-settled issue of the trial court s discretion to dismiss Appellants lawsuit for failure to prosecute pursuant to Mississippi Rule 41(b), and more broadly, to dismiss based on its inherent authority to efficiently manage its docket. Appellants have failed to show that the trial court abused its discretion in dismissing their lawsuit. While Appellees welcome the opportunity to argue this matter before the Court, oral argument is not necessary in this appeal as the substantive facts are not in dispute and issue of the trial court s discretion to dismiss for failure to prosecute has been decided previously by this Court, and supports Appellees position. vii
Appellees, Coldwell Banker Graham & Associates, Inc. and Cindy Lai (collectively Coldwell Banker and Lai ), submit their Appellees Brief as follows: I. INTRODUCTION This appeal arises from the Hinds County Circuit Court s grant of Appellees Motion to Dismiss the Appellants lawsuit for failure to prosecute their claims. As discussed in more detail below, throughout the life of their lawsuit, Appellants repeatedly failed to prosecute their claims (either failing to timely participate in discovery or otherwise move the case forward), allowing years to pass without any action in the case. Appellants failed to carry their burden at the trial court and could not show that they had timely prosecuted their lawsuit. Likewise, Appellants fail to carry their burden on appeal which requires a showing of abuse of discretion by the trial court. The trial court s dismissal of Appellants lawsuit for failure to prosecute was proper and should be affirmed. II. STATEMENT OF THE CASE The entirety of this lawsuit (since its initial filing in November 2004) has been punctuated with Appellees attempts to require Appellants engage in and prosecute their care. The docket reflects clear and repeated failure of Appellants to prosecute their claims. In fact, as discussed below, the record reflects that Appellants have gone years at a time without taking any action in the case, and when they do act, it is only in response to Appellants request to dismiss the case. For these reasons and as more comprehensively discussed herein, the Court should find that dismissal was proper and appropriate and affirm the trial court s ruling. Appellants Tony and Linda Smith filed their suit on November 4, 2004. R. Vol. 1 at p. 2; R.E. 1. The First Amended Complaint was filed in January 2005. R. Vol. 1 at p. 96-112. Between the filing of their suit and approximately August 2007, the parties litigated over the issue of arbitration, bringing the issue to this Court for resolution. R. Vol. 1 at p. 3-4, p. 24, p. 27, and 29; R.E. 1. In August 2007, the Mississippi Supreme Court ordered the Plaintiffs to arbitrate their 1
disputes with two defendants, Century 21 Maselle & Associates, Inc. and Cindy Smith. R. Vol. 1 at p. 6; R.E. 1. Those initial defendants are not parties to this appeal. The remaining defendants, including Coldwell Banker and Lai, were not ordered to arbitration and this matter was not stayed. Following remand back to the trial court, Coldwell Banker and Lai began to attempt to participate in discovery with Appellants. In 2008, Coldwell Banker and Lai attempted to take Appellants depositions but the depositions had to be rescheduled multiple times due to Appellants refusal to respond to written discovery. R. Vol. 1 at p. 6-7; R.E. 1. In fact, in 2008 and 2009, two separate motions to compel were filed against Appellants to force them to respond to discovery. R. Vol. 1 at p. 13-24 and p. 35-52; R.E. 2 and 3. Finally, Appellants responded to written discovery in July 2009 after an order was entered by the trial court compelling them to respond. R. Vol. 1 at p. 75-77; R.E. 4. In August 2009, the Appellants depositions were taken. R. Vol. 1 at p. 142-150; R. Vol. 2 at p. 151-246. Thereafter, on September 3, 2010, Coldwell Banker and Lai filed a Motion to Dismiss for Failure to Prosecute. 1, 2 The Appellants responded by filing a Motion to Set Trial, but never set the motion for hearing or otherwise attempted to obtain a trial date. R. Vol. 1 at p. 8-10; R.E. 1; R. Vol 2 at p. 265-66. At the hearing on Coldwell Banker and Lai s dispositive motions, the trial court declined to grant summary judgment on the Motion to Dismiss for Failure to Prosecute, at that time, with an admonishment to Appellants counsel to push the case along. However, nothing happened. 1 While the entire record from the trial court was designated in Appellee s Designation of the Record, it has come to counsel s attention that the Motion to Dismiss for Failure to Prosecute filed on September 13, 2010 was not included in the record transmitted to the Supreme Court by the Circuit Court Clerk. However, it is undisputed that this Motion was filed as stated, evidenced by the filed stamp on the document. As such, the document is included in Appellee s Record Excepts at Tab 5. 2 The following day, Coldwell Banker and Lai also filed a summary judgment motion. 2
Between August 2011 and January 2014, Appellants took no action in the case. 3 R. Vol. 5 at p. 711; R.E. 7. So, Coldwell Banker and Lai moved for a second time to dismiss Appellants case for failure to prosecute on January 24, 2014. R. Vol. 5 at p. 690-92; R.E. 6. The Plaintiffs responded by (again) filing a Motion to Set Trial on January 29, 2014, but then (again) took no action to have the motion heard or otherwise prosecute their claims. R. Vol. 1 at p. 10-11; R.E. 1; R. Vol. 5 at p. 696. Coldwell Banker and Lai s second Motion to Dismiss for Failure to Prosecute was denied by the trial court. R. Vol. 5 at p. 711; R.E. 7. However, during April 17, 2014, motion hearing on the second Motion to Dismiss for Failure to Prosecute the trial court again stressed to counsel for Appellants that they needed to take action with respect to their claims. R. Vol. 5 at p. 711; R.E. 7. Again, Appellants failed to do so, and another year-and-a-half passed without any effort by Appellants to prosecute their case. R. Vol. 1 at p. 10-11; R.E. 1. Coldwell Banker and Lai then filed a third Motion to Dismiss for Failure to Prosecute on November 7, 2015, which was granted by the trial court on June 27, 2016. R. Vol. 5 at p. 710-13 and p. 721-22; R.E. 7 and 8. It is from the trial court s order dismissing Appellants lawsuit for failure to prosecute that this appeal arises. III. STANDARD OF REVIEW The Court employs an abuse-of-discretion standard when reviewing a trial court s dismissal for failure to prosecute pursuant to Rule 41(b). Holder v. Orange Grove Med. Specialties, P.A., 54 So.3d 192, 196 (Miss. 2010) (citing Am. Tel. & Tel. v. Days Inn of Winona, 3 Appellants make reference to a stay or delay due to a bankruptcy filing by John Hendon. Appellees Coldwell Banker and Lai are unaware of any delay related to bankruptcy by John Hendon, and are unaware of any filing with the trial court related to a stay in that regard. To Appellees knowledge, no stay regarding Mr. Hendon s alleged bankruptcy was ever put in place at the trial court. 3
720 So.2d 178, 180 (Miss. 1998)). The power to dismiss for failure to prosecute is an inherent power in any court of law or equity and has been regarded as a means necessary to control the court s docket and promote the orderly expedition of justice. Hensarling v. Holly, 972 So.2d 716, 719 20 (Miss. Ct. App. 2007) (citing Watson v. Lillard, 493 So.2d 1277, 1278 (Miss. 1986)). What constitutes failure to prosecute depends on the facts of the particular case. Wallace v. Jones, 572 So.2d 371, 376 (Miss. 1990) (citing Rogers v. Kroger Co., 669 F.2d 317, 320 (5th Cir. 1982)). In analyzing the dismissal of a case pursuant to Rule 41(b), the Court should look to see if there is a record of dilatory or contumacious conduct by Appellants. State ex rel. Hood v. Louisville Tire Ctr. Inc., 204 So.3d 1250, 124 (Miss. 2016) (citing Holder, 54 So.3d at 197 ( 18)). The Court also may consider aggravating factors or actual prejudice to the Appellees, but the presence of the factors or prejudice is not necessary to affirm dismissal. Id. IV. ARGUMENT Appellants have failed to show that the trial court abused its discretion in granting Appellee s motion to dismiss for failure to prosecute. Miss. R. Civ. P. 41(b) allows a defendant in a civil action to move for involuntary dismissal of an action for failure of the plaintiff to prosecute. Miss. R. Civ. P 41(b). The trial court dismissed the Appellants lawsuit based upon their dilatory and contumacious conduct. In order to reverse the trial court s decision, this Court would have to determine that the trial court abused its discretion. Appellants cannot make that showing. 4
a. The Appellants inaction reflects a clear record of delay. A clear record of delay is sufficient to justify dismissal pursuant to Rule 41(b). Holder, 54 So. 3d at 198 (noting that [t]he standard is whether there is a clear record of delay or contumacious conduct by the plaintiff.... ) (emphasis in original). When there is a clear record of delay, no showing of contumacious conduct is necessary. Id. at 199. Further, delay alone can suffice to justify dismissal; factors other than delay are not required to affirm a dismissal for failure to prosecute. Id. Appellants actions (or inactions) during the pendency of the litigation evidence a clear record of delay as follows: Appellants repeated failures to timely respond to discovery. See R. Vol. 1 at p. 13-24 and p. 35-52; R.E. 2 and 3; Appellants failure to take any action to prosecute their claims against Appellees between August 2009 when Appellants depositions were taken and September 3, 2010, when the first motion to dismiss for failure to prosecute was filed. See R. Vol. 1 at p. 7; R.E. 1; Appellants failure to set their September 2010 Motion to Set Trial for hearing. See R. Vol. 1 at p. 8; R. Vol. 2 at p. 265-66; R.E. 1; Appellants failure to take any action against Appellees between August 2011 and January 2014, when the second motion to dismiss for failure to prosecute was filed. See R. Vol. 1, at p. 8-10; R. Vol. 5 at p. 690-92; R.E.1 and 6; Appellants failure to set their January 2014 Motion to Set Trial for hearing or 5
to otherwise prosecute their claims against Appellees. See R. Vol. 1 at p. 10-11; R. Vol. 5 at p. 696; R.E. 1; and Appellants failure to take any action against Appellees between January 2014 and November 2, 2015, when the third motion to dismiss for failure to prosecute (which was granted) was filed. See R. Vol. 1 at p. 10-11; R. Vol. 5 at p. 710-13; R.E. 1 and 7. Appellants failings and inaction are exactly the type of behavior that supports dismissal for failure to prosecute pursuant to Rule 41(b) and a finding of clear delay. This same issue was addressed in Holder, wherein the Mississippi Supreme Court upheld the trial court s Rule 41(b) dismissal. 54 So. 3d at 201. In Holder, the Court found a clear record of delay based on the following: 1) a 435 day delay in responding to discovery; 2) a failure to initiate discovery until a year past the deadline; and 3) a failure to respond to the motion to dismiss for failure to prosecute until after the ten-day limit. Id. at 197. The facts in the present action are even more egregious, as the record shows Appellants failed to prosecute their claims against Appellees on multiple occasions with each occasion spanning more than a year. See Holmes v. Grisby, No. 2015-CA- 01771-COA, 2015 WL 13446778, at *3 (Miss. Ct. App. Oct. 27, 2015) (noting that the Mississippi Supreme Court has previously upheld a dismissal of a case for failure to prosecute under Rule 41(b) where the case had remained stale for more than a year ) (citing Manning v. King s Daughters Med. Ctr., 138 So. 3d 109, 117 (Miss. 2014)). As such, there is no question that there is a clear record of delay, and the trial court did not abuse its discretion in granting Appellees motion to dismiss for failure to prosecute pursuant to Rule 41(b). 6
b. Explicit consideration of lesser sanctions is not required, however, the trial court previously denied two motions to dismiss for failure to prosecute, while admonishing Appellants to push their case. This is the equivalent of lesser sanctions. Appellants argue that the trial court failed to consider lesser sanctions against them prior to dismissing their lawsuit. However, the lack of an explicit finding in the record of consideration of lesser sanctions is not an abuse of discretion by the trial court or grounds for reversal. Holmes, 2015 WL 13446778, at *4 (affirming dismissal where trial court did not make a finding regarding lesser sanctions) (citing Collins v. Koppers, Inc., 59 So. 3d 582, 590 (Miss. 2011)). Further, Appellants fail to note that the trial court had previously denied two motions to dismiss for failure to prosecute, admonishing Appellants to push their case and giving Appellants more than five years to prosecute their case, but Appellants took no action. Therefore, while an explicit finding in the record regarding lesser sanctions is not required, arguably, the trial court already gave Appellants lesser sanctions two times previously, which they failed to take advantage of. In addition, a showing of delay or contumacious conduct is sufficient for a Rule 41(b) dismissal when a lesser sanction would not serve the best interests of justice. Holder, 54 So. 3d at 198. Here, Appellants were not only warned once, but twice, about their dilatory behavior in not prosecuting their claims when the trial court denied Appellants 2010 and 2014 Motions to Dismiss for Failure to Prosecute. Finally, in 2015, after enduring another year-and-a-half without action by Appellants, the trial court granted Appellee s third Motion to Dismiss. Appellants failure to heed the trial court s warnings, along with the trial court record, clearly demonstrates that a lesser sanction would not have served the best interests of justice. 7
c. A finding of prejudice is not required, but prejudice can be implied from the delay. The Appellants further argue that nothing in the record shows that any delay in the prosecution of the case was the fault of the Smiths. Appellants counsel also states that the delay was solely attributable to personal issues involving their counsel. However, the case had been repeatedly delayed from the time it came back to the trial court in 2007, as evidenced by motions to compel filed against the Appellants, and multiple motions to dismiss for failure to prosecute. See R. 13-24, 35-52, 690-92, 710-13; R.E. 2, 3, 5, 6, and 7. According to Appellants, the only reason stated by the trial court for dismissing the First Amended Complaint was delay, and Appellants argue that none of the motions claim any prejudice to any defendant. However, prejudice is implied by the significant passage of time since the lawsuit was initiated. In Holder, the Mississippi Supreme Court noted that [a]ctual prejudice is not a requirement for dismissal under Rule 41(b), but instead, held that [p]rejudice may be presumed from unreasonable delay. 54 So. 3d, at 199-200 (citing Cox v. Cox, 976 So. 2d 869, 876-79 (Miss. 2008)). The court noted that the case had been stale for more than a year, and the plaintiffs had failed to meet multiple discovery and procedural deadlines. Id. at 200. The record in the present matter shows an even greater delay, and prejudice is certainly presumed from the unreasonable delay. Appellants arguments that certain of their delays are attributable to their counsel is also not persuasive, as the court in Holmes dealt with a similar issue and concluded that counsel s inaction does not relinquish [appellants ] duty to prosecute their case. 2015 WL 13446778, at *4 (affirming dismissal for failure to prosecute). 8
V. CONCLUSION There is no genuine issue of material fact present on the issue of whether Appellants timely prosecuted their claims. They did not. Years passed without any activity in the case, even after admonitions by the trial court for the Appellants to push their case forward. The delay itself of over thirteen years since the lawsuit was initiated is prejudicial to Appellees. Finally, Appellants have failed to show that the trial court abused its discretion in dismissing their action. For these reasons, the Court should affirm the trial court s ruling on all issues. RESPECTFULLY SUBMITTED, this the 1st day of December, 2017. COLDWELL BANKER GRAHAM & ASSOCIATES, INC. and CINDY LAI By: BY: CARROLL WARREN & PARKER PLLC /s/ Lee Ann Thigpen LEE ANN THIGPEN OF COUNSEL: Lee Ann Thigpen (MSB #100229) Jim Warren (MSB #6966) CARROLL WARREN & PARKER PLLC 188 East Capitol Street, Suite 1200 Post Office Box 1005 Jackson, Mississippi 39215-1005 Telephone: 601-592-1010 Facsimile: 601-592-6060 9
CERTIFICATE OF SERVICE The undersigned counsel of record for Appellees, Coldwell Banker Graham & Associates, Inc. and Cindy Lai, hereby certifies that a true and correct copy of the above and foregoing instrument has this day been served electronically via the MEC system to all counsel of record, including the following: Joe S. Deaton, III, Esq. Chris Daniel, Esq. Deaton & Daniel Post Office Box 320099 Flowood, MS 39232 Troy Odom, Esq. Blair & Bondurant Post Office Box 321423 Jackson, MS 39232-1423 Donald W. Boykin, Esq. Attorney at Law 515 Court Street Jackson, MS 39201 Robert J. Curtis, Esq. Post Office Box 4169 Jackson, MS 39296-4169 The undersigned counsel of record further certifies that a true and correct copy of the above and forgoing has this day been served via U.S. Mail upon the following: Honorable Winston L. Kidd Hinds County Circuit Court Judge 407 East Pascagoula St. Jackson, MS 39205 This the 1st day of December, 2017. /s/ Lee Ann Thigpen Lee Ann Thigpen 10