IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO.2010-TS BRIEF OF APPELLEE ENTERGY MISSISSIPPI, INC. ORAL ARGUMENT NOT REQUESTED

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO.2010-TS-00865 GLEN AVENT APPELLANT - PLAINTIFF VS. MISSISSIPPI POWER & LIGHT COMPANY, W.G. YATES & SON CONSTRUCTION CO., AND ITT SHERATON CORPORATION D/B/A SHERATON CASINO, SHERATON CASINO, INDIVIDUALLY, AND JOHN DOES I-X APPELLEES-DEFENDANTS BRIEF OF APPELLEE ENTERGY MISSISSIPPI, INC. ORAL ARGUMENT NOT REQUESTED Prepared by: John H. Dunbar, MSB j Kate Mauldin Embry, MSB d Dunbar Davis, PLLC 324 Jackson Avenue East Oxford, MS 38655 (662) 281-0001 b

CERTIFICATE OF INTERESTED PARTIES The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualification or recusal. 1. Honorable Kenneth 1. Thomas, Tunica County Circuit Court Judge; 2. Appellant, Glen Avent; 3. Appellee Entergy Mississippi, Inc.; 4. Appellee ITT Sheraton Corporation d/b/a Sheraton Casino; 5. Legal Counsel for Appellant, Glen Avent: Dana J. Swan, Esq. CHAPMAN, LEWIS & SWAN Post Office Box 428 Clarksdale, MS 38614 6. Legal Counsel for Appellee Entergy Mississippi, Inc.: John H. Dunbar, Esq. Kate Mauldin Embry, Esq. DUNBAR DAVIS, PLLC 324 Jackson Avenue East Oxford, MS 38655 7. Ms. Kathy Gillis, Supreme Court Clerk. This, the 7th day of February, 2011. KATE MAULDIN EMBRY, MSB'; t I II

STATEMENT REGARDING ORAL ARGUMENT Entergy Mississippi, Inc. ("EM!") does not request oral argument. The briefs and the record adequately present the factual and legal arguments raised in this case, and EMI does not believe that oral argument would significantly assist the Court's review. Jl1

TABLE OF CONTENTS Page 1. STATEMENT OF THE ISSUE... 1 II. STATEMENT OF THE CASE... 2 A. Nature of the Case...2 B. Statement of Facts... 2 C. Course of Proceedings and Disposition Below...3 III. SUMMARY OF THE ARGUMENT... 7 IV. ARGUMENT AND AUTHORITIES... 9 A. Standard of Review... 9 B. Clear Record of Delay... 10 C. Prejudice... 11 D. Lesser Sanctions Inadequate... 13 E. Iudicial Estoppel... 13 V. CONCLUSION... 14 IV

TABLE OF AUTHORITIES Barry v. Reeves, No. 2009-CA-01124-SCT (S. Ct. Miss. Sept. 30, 2010)... 9 Cucus, Inc. v. McDaniel, 938 So. 2d238, 240 (Miss. 2006)... 9 Hillman v. Weatherly, 14 So. 3d 721,726 (Miss. 2009)... 9 Hine v. Anchor Lake Property Owners Ass'n, Inc., 911 So. 2d 1001, 1003-1005 (Miss. Ct. App. 2005)... II Holder v. Orange Grove Medical Specialties, P.A., No. 2008-CT-01442-SCT, p. 7, ~17 (Miss. Dec. 9, 2010)... 9, 10,11 III. Central R.R. Co. v. Moore, 994 So. 2d 723, 729(Miss. 2005)... 10, 11, 12 Roebuck v. City of Aberdeen, 671 So. 2d49, 51 (Miss. 1996)... 9 Stuart v. Public Employees' Retirement System of Mississippi, 799 So. 2d 886, 888 (Miss. App. 2001)... 9 Union Plumbing & Heating Co. Inc. v. Mosley 835 So. 2d 88, 92 (Miss. 2002)... 14 Walker v. Parnell, 566 So. 2d 1213, 1216 (Miss. 1990)... 9 Watson v. Lillard, 493 So. 2d 1277, 1279 (Miss. 1986)... 9 Page v

I. STATEMENT OF THE ISSUE A. The trial court did not abuse its discretion by dismissing Plaintiffs claims against EMI with prejudice for failure to prosecute. 1

II. STATEMENT OF THE CASE A. Nature of the Case. Plaintiff alleged that he was injured by electrical shock on July 2, 1994, and that his injuries resulted from the negligence of W.O. Yates & Son Construction Co., ITT Sheraton Corporation, Sheraton Casino and EMI. B. Statement of Facts. Plaintiff's accident occurred during the construction of the Sheraton Casino in Tunica, Mississippi. [R. 0018]. Yates Construction Company ("Yates Construction") was the general contractor for the project. [R. 0206]. Yates Construction contracted with subcontractors to perform specific tasks connected with the project. [R. 0292-0293]. Plaintiff was an employee of Andy Bland Construction, Inc. ("Andy Bland Construction"), a sub-subcontractor engaged to install fiberglass pieces on the fa<;ade of the casino. [R.0293]. The accident occurred while Plaintiff was operating a man-lift. [R. 0018]. He was placing fiberglass bricks on the face of the casino when the man-lift got stuck in wet sand in the moat circling the casino. [R. 0018]. An employee of Yates Construction or Sheraton, using equipment, pulled the man-lift away from the building and into electrical wires extending from the casino. [R. 0018]. When Plaintiff made contact with the electrical line, he was in an area of the construction site where his work did not require him to be. As stated by Plaintiff, he was there by accident. [Supp. R. 00221 at 11. 13-16]. The electrical line Plaintiff contacted was a temporary electrical line. [R. 0294]. Yates had requested the installation of the temporary electrical line to service its equipment at the 2

project site. [R.0294]. According to Tony Arnheim, Sheraton's Project Manager, the continued use of the temporary power line for Yates after the installation of permanent service to the casino "was Yates responsibility." [R. 0363-0364]. There is no evidence in the record that Yates had notified EMI before Plaintiff s accident that the temporary power lines were no longer needed or that they were ready to be removed. During construction of the casino, Yates Construction conducted weekly safety meetings at the Sheraton Casino project site. [R. 0293]. Andy Bland Construction, sub-subcontractor of Yates, also conducted and/or participated in weekly safety meetings for this construction project. [R.0293]. Plaintiff understood the danger of contact with power lines prior to the accident, and he also understood the "ten foot" rule, which is a rule that equipment operators shall not come within ten feet of a high voltage power line without making arrangements first with the power company to do so safely. [Supp. R. 00220 at II. 1-21]. Nevertheless, Plaintiff was on a man-lift, outside of the area where he should have been operating the lift, and unnecessarily in the vicinity of the line that was contacted. C. Course of Proceedings and Disposition Below. Plaintiff filed his Complaint in the Circuit Court of Tunica County, Mississippi, on November 8, 1996, more than two years after his July 2, 1994 accident. [R. 0016]. On November 24, 1997, the Court entered an agreed scheduling order to govern discovery and motion practice. [R. 0333]. Pursuant to the agreed order, Plaintiffs deadline for designating expert witnesses passed on January 30, 1998. [R. 0333]. The discovery deadline passed on March 30, 1998. [R.0333]. 3

On May 25, 1999, Plaintiff filed a notice of service on the defendants of a notice of deposition of Dr. William Hickerson with the trial court clerk. [R. 0014, 0525]. No action by discovery or any filing with the Court was taken on behalf of Plaintiff by Plaintiffs counsel for a period of nearly six (6) years following Plaintiffs May 25, 1999 filing of the notice of service. [R. 0014]. When communications were finally resumed, EMI attempted to contact persons identified by Plaintiff as having discoverable knowledge about the incident, and was unable to locate many of the witnesses. [R.0597-0601; 0597-0601] On February 11, 2005, over eight (8) years after filing his complaint and over seven (7) years after the deadline to designate expert witnesses, Plaintiff served upon EMI his Designation of Experts, Exhibit "8" to EMI's Motion to Dismiss. [R. 0549-0557]. The notice of service of the designation and the designation were filed on February 14,2005. [R.0014]. In April and May of 2006, the parties exchanged correspondence regarding possible mediation. These communications are attached to Plaintiffs Response to EMI's Motion to Dismiss as Exhibits "8" - "F" and "I" - "J". [R. 0624-0628, 0635-0636]. On April 18, 2006, EMI served its Third Set of Interrogatories on Plaintiff seeking updated information about the whereabouts of persons having discoverable knowledge. [R. 0631-0634]. Plaintiffresponded on May 16, 2006, and provided contact information for nine (9) individuals. [R.0593-0596]. Upon receiving Plaintiffs May 16, 2006 discovery responses, Elizabeth Danford, legal assistant for counsel for EMI, attempted to contact the individuals identified by Plaintiff as having discoverable knowledge. [R.0597-0601]. As described in her affidavit, Exhibit "H" to 4

EMI's Motion to Dismiss, Ms. Danford was unable to contact eight (8) of the nine (9) witnesses identified by Plaintiff. [R.0597-0601] On June 6, 2006, nearly ten (10) years after the Complaint was filed and nearly twelve (12) years after the July 2, 1994 accident, EMI filed its Rule 41(b) Motion to Dismiss. As set forth in the motion, Plaintiff's failure to prosecute his case over the nearly six (6) year period from May 1999 to February 2005 prejudiced EMI's ability to defend the case. The facts on which the underlying case is based occurred in 1994. The memories of eyewitnesses faded over time. Further, many of the witnesses could not even be located. [R.0537-0601]. Plaintiff filed his Response to the Motion to Dismiss on June 18, 2006. [R. 0609-0639]. In the response, Plaintiff failed to mention, much less refute, that EMI had been prejudiced in its defense by the delay, unavailable witnesses, and faded memory of available witnesses. [R. 0609-0613]. EMI filed its Rebuttal on July 26,2006. [R.0641-0644]. On November 26, 2008, EMI filed its Supplemental Rebuttal in Further Support of the Motion to Dismiss for Want of Prosecution, calling the trial court's attention to the opinion of the Mississippi Supreme Court in Ill. Central R.R. Co. v. Moore, 994 So. 2d 723 (Miss. 2008). [R. 0646-0655]. On March 15,2010, EMI filed its Second Motion to Supplement its Motion to Dismiss, attached to which was an affidavit of Cindy Wilson, legal assistant for defense counsel, describing her unsuccessful, renewed efforts to locate the persons identified by Plaintiff in his May 15,2006 answers to discovery. [R. 0672-0679]. After responding to the Motion to Dismiss on June 18, 2006, Plaintiff did nothing to 5

move this case to judgment for a period of nearly two (2) more years. [R. 0014 J. Tunica County Circuit Court Judge Kenneth Thomas heard EMI's Motion to Dismiss on April 20, 20 I O. After having heard the arguments of counsel, and reviewed their pleadings and other submissions, and finding the Motion to Dismiss to be well-taken, the Honorable Judge Thomas dismissed the Plaintiffs claims from the bench, stating in pertinent part as follows: [Clonsidering the length of the delay, the reason for the delay, the facts having become dim due to the delay, witnesses who cannot be found, the time that it would take to replace experts and the numerous periods of inactivity, the Court finds that this case is immediately ripe for a dismissal. And ifi would not dismiss this case, I would be remiss in the performance of my duties. Therefore, the case is dismissed, finally dismissed. (Hearing Transcript at p. 17, ll. 3-14). Final Judgment was entered on May 10, 2010 [R. 0681J, and notice of this appeal was filed on May 26, 2010 [R. 0683]. As set forth in the notice, this appeal is taken from the Trial Court's May 10,2010 Final Judgment in Favor of Mississippi Power & Light Company, as well as a prior Order of the Trial Court dismissing ITT Sheraton Corporation. [R.0863]. This brief concerns Plaintiffs appeal of the May 10, 2010 Final Judgment in favor of EM!. 6

III. SUMMARY OF THE ARGUMENT Dismissal of a case for failure to prosecute is within the inherent power of a trial court. This power of the trial court is necessary to the orderly expedition of justice and the court's control of its own docket. A trial court's dismissal for failure to prosecute will be overturned only where this Court finds the trial court abused its discretion. Before the trial court in this case was a clear record of extreme and inexcusable delay by Plaintiff which prejudiced EMl's defense of the case. The accident that was the basis of the case occurred nearly sixteen (16) years prior to the trial court's ruling on EMl's Motion to Dismiss, and at the time of the hearing, the case had been pending for more than thirteen (13) years. For a period of nearly six (6) years, from May 25, 1999 to February 14, 2005, Plaintiff took no action of record to advance the case to judgment. Even after EMI filed its Motion to Dismiss, Plaintiff failed to prosecute the case, taking no action of record for a period of nearly two (2) years after he filed his June 18, 2006 response to EM!' s Motion to Dismiss. Plaintiff has provided no explanation or good cause for the delays. In a case such as this, where there is a clear record of inexcusable delay, no showing of contumacious conduct on the part of the plaintiff or other aggravating factors is necessary to support dismissal. However, prejudice to EMI as a result of the delay is an aggravating factor which bolsters EM!' s case in support of dismissal. 7

In cases such as this, where extreme delay occurs, prejudice to the defending party is presumed, as Mississippi law recognizes inherent problems with locating witnesses, failing memories, increased costs to litigants and burden to the court system. In support of its Motion to Dismiss, EMI did not rely solely on this presumption. Rather, EMI filed documentary evidence establishing prejudice, including affidavits of two legal assistants for defense counsel, Elizabeth Danford and Cindy Wilson, outlining their failed attempts to contact persons identified by Plaintiff as having discoverable knowledge. Plaintiff has never disputed this prejudice to EM!. In addition to the inability to locate witnesses and the fading memories of the witnesses that could be found, counsel for EMI and EMI's experts would need to re-learn the case from scratch because of the delay, and counsel for EMI would need to re-depose Plaintiff. More than ten (10) years had passed since he had been deposed. Given the clear record of delay by Plaintiff in prosecuting this case and the resulting prejudice to EMI, the trial court correctly dismissed this case with prejudice. Any lesser sanction would be inadequate. 8

IV. ARGUMENT AND AUTHORITIES A. Standard of Review "[A lny court oflaw or equity may exercise the power to dismiss for want of prosecution. This power, inherent to the courts, is necessary as a means to the orderly expedition of justice and the court's control of its own docket." Holder v. Orange Grove Medical Specialties, P.A., No. 2008-CT-01442-SCT, p. 7, ~17 (Miss. Dec. 9, 2010) (quoting Hillman v. Weatherly, 14 So. 3d 721, 726 (Miss. 2009) (citing Cucus, Inc. v. McDaniel, 938 So. 2d 238,240 (Miss. 2006) (citing Walker v. Parnell, 566 So. 2d 1213, 1216 (Miss. 1990))). This Court employs an abuse-of-discretion standard when reviewing a trial court's dismissal for failure to prosecute. Stuart v. Public Employees' Retirement System of Mississippi, 799 So. 2d 886, 888 (Miss. App. 200 I) ("A decision to grant or deny a motion to dismiss is in the discretion of the trial court and will not be reversed unless that discretion was abused." (citing Roebuck v. City of Aberdeen, 671 So. 2d 49,51 (Miss. 1996)). This Court will affirm the trial court's findings of fact, unless the findings are manifestly wrong. Barry v. Reeves, No. 2009-CA-01124-SCT, 2010 Miss. LEXIS 525 at *6 (Miss. Sept. 30, 2010) (citing Watson v. Lillard, 493 So. 2d 1277, 1279 (Miss. 1986)). Motions for failure to prosecute are considered on a case-by-case basis. Holder, No. 2008-CT-01442-SCT, p. 7, ~17 (citing Hillman, 14 So. 3d at 726). This Court may uphold a Rule 41(b) dismissal when there is: (I) a record of dilatory or contumacious conduct by the plaintiff; and (2) a finding by this Court that lesser sanctions would not serve the interests of justice. Id. at p. 7, ~18. Additional 'aggravating factors' or actual prejudice may bolster the case for dismissal, but are not requirements. Id. 9

B. Clear Record of Delay A clear record of delay was before the trial court in this case. The accident that was the basis of the underlying lawsuit occurred nearly sixteen (16) years prior to the trial court's April 20, 2010 ruling on EMI's Motion to Dismiss. As recognized by this Court, "[p]arties advance a case to judgment through 'actions of record. '" Ill. Central R.R. Co. v. Moore, 994 So. 2d 723, 729 (Miss. 2008). In other words, correspondence among counsel has little, if any, relevance. From May 25, 1999 to February 14,2005, a period of nearly six (6) years, Plaintiff took no action of record to advance this case to judgment. [R. 0012-0015]. Plaintiff again took no action of record to advance this case to judgment for a period of nearly two (2) years following the filing of his response to EMI's Motion to Dismiss on June 18, 2006. [R. 0012-0015]. Plaintiff has provided no explanation or good cause for the delay. At the April 20, 20 I 0 hearing, trial court correctly found: "there was a lot of inactivity during the middle age of this case. And then there was very nominal activity between 2006 and today." (Hearing Transcript at p. 16,11.23-25). The trial court further recognized that if the case were to be continued "[ w]e would still not have completed the discovery in this case," sixteen (16) years after Plaintiffs accident. (Hearing Transcript at p. 16,11.27-28). The trial court's finding of a clear record of delay was not manifestly wrong. See e.g. Holder, No. 2008-CT-01442-SCT, p. 7, ~17 (finding a clear record of delay in a case that had been pending for less than one year and eight months and upholding the trial court's dismissal of the case with prejudice, which was based in part on the plaintiffs failure to timely engage in 10

discovery); Nine v. Anchor Lake Property Owners Ass 'n, Inc., 911 So 2d 1001, 1003-100S (Miss. Ct. App. 200S) (finding that there was a clear record of delay by the plaintiff and upholding trial court's dismissal for failure to prosecute where there was no record of activity by the plaintiff for a period of more than three (3) years); see also Moore, 994 So. 2d 723 (dismissing for failure to prosecute under Rule 41(d) where the plaintiff took no action of record for a period of more than seven (7) years). This Court has affirmed dismissal of cases involving delays that were far less extended than the delays before the trial court in this case. See e.g. [d. C. Prej udice Prejudice to the defendant, while not a prerequisite to dismissal under Rule 41(b), is an aggravating factor, the presence of which may bolster dismissal. Holder, No. 2008-CT-01442- SCT, p. 12, ~27. Where extreme delay occurs, prejudice to the defending party is presumed: Given the inherent concerns regarding locating witnesses, failing memories, and increased costs to both litigants and burdening the court system, such a lengthy delay creates a strong presumption of prejudice which can be overcome only by a good cause finding. Moore, 994 So. 2d at 729. [R. 0617]. In support of its Motion to Dismiss, EMI did not solely rely on this presumption. Rather, EMI proved prejudice by documentary evidence offered in support of its Motion to Dismiss. Namely, EMI filed affidavits of Elizabeth Danford [R. OS97-0601] and Cindy Wilson [R. 067S- 0679], both of whom made efforts to locate witnesses identified by Plaintiff while legal assistants for undersigned counsel for EM!. The affidavit of Cindy Wilson describes the most recent effort of defense counsel to 11

locate the nine (9) persons identified by Plaintiff in his May 16, 2006 answers to discovery as having discoverable knowledge. As shown by the affidavit, Ms. Wilson was only able to contact one (I) of the nine (9) persons identified. [R. 0675-0679]. Of the eight (8) persons she could not contact, she was unable to locate seven (7) and was unable to talk to the other. [R. 0675-0679]. Plaintiff offered no affidavits to contradict Danford or Wilson. Plaintiff never disputed in the court below that these witnesses cannot be located. In addition to the inability to locate witnesses, fading recollections of the witnesses that can be found is a prejudice that results from a delay like this and that has been recognized by this Court. See Moore, 994 So. 2d at 729. Additional examples of the prejudice from this delay would be the need on the part of defense counsel to re-iearn the case from scratch and the need for experts for EMI to re-iearn the case from scratch. The plaintiff would have had to be re-deposed, as at the time of the hearing, more than ten (10) years had passed since he had been deposed. Plaintiff never disputed in the court below the prejudice EMI has suffered. In dismissing this case, the trial court correctly considered the prejudice to EMI caused by Plaintiffs delay: I know that each case stands on its own feet. But considering the length of delay, the facts having become dim due to delay, witnesses who cannot be found, the increased cost of rediscovery, the time it would take to replace experts and the numerous periods of inactivity, the Court finds that this case is immediately ripe for dismissal. And if I were not to dismiss this case, I would be remiss in the performance of my duties. (Hearing Transcript at p. 17,11.3-12). 12

D. Lesser Sanctions Inadequate The trial court correctly considered the delay in this case and prejudice to EMI's defense as a result of the delay, and found that dismissal of this case was a necessary means of controlling his docket: If I would allow this case to continue, when would I ever be able to dismiss another case? (Hearing Transcript at p. 16, I. 29 - p. 17, 1.1).... I don't see how I could dismiss a case in the future if I did not dismiss this case. (Hearing Transcript at p. 17, II. 15-17). Lesser sanctions would not be adequate. Any sanction less than dismissal would leave EMI with the same prejudice of inability to locate witnesses, faded memories of witnesses who can located, burden and expense of counsel and experts learning or re-iearning the case from scratch, and the burden and expense of additional discovery. Further, any sanction less than dismissal would prejudice the trial court's ability to control its own docket. As it is within the inherent power of the trial judge to dismiss this case "as a means to the orderly expedition of justice and the court's control of its own docket," and as this case presents a clear record of delay by Plaintiff, dismissal with prejudice should be affirmed. E. Judicial Estoppel In his brief, Plaintiff does not dispute that this case has suffered significant delay, and he does not dispute that EMI's defense has been prejudiced as a result of the delays. Rather, 13

Plaintiff refers to various communications and discovery documents exchanged in April and May of 2006, arguing that activity was taking place at that time to advance the case to trial. [Appellant Brief at p. 2,,3- p. 3, '1]. As set forth in EMI's Rebuttal in Support of its Motion to Dismiss,, 4, the communications to which Plaintiff refers merely show that the parties had finally begun to review the status of the case, after it had been dormant for approximately seven (7) years. [R. 0641]. When EMI investigated the availability of the witnesses to the July 2, 1994 accident, it found many were unavailable. [R. 0641]. Plaintiff has not shown that EMI waived any relief requested in its Motion to Dismiss, and any such argument is barred because it is not supported by authority. See Union Plumbing & Heating Co. Inc. v. Mosley, 835 So. 2d 88, 92 (Miss. 2002) (holding that failure to cite authority results in procedural bar of consideration of issue on appeal). v. CONCLUSION This case presents a clear record of extreme and inexcusable delay by Plaintiff which prejudiced EMI's defense of the case. In the court below, Plaintiff provided no explanation or good cause for the delays, and Plaintiff did not dispute that EMI has been prejudiced by the delays. Given the prejudice to EM! that would result if the case was not dismissed, any lesser sanction would be inadequate. For the foregoing reasons, Circuit Court Judge Kenneth Thomas did not abuse his discretion in dismissing Plaintiffs claims against EM! with prejudice. 14

Respectfully submitted, this the 7th day of February, 2011. DUNBAR DAVIS, PLLC 324 Jackson Avenue East Oxford, MS 38655 Telephone: (662) 281-0001 Facsimile: (662) 281-1201 BY: DUNBAR, KATE MAULDIN EMBRY,, 15

CERTIFICATE OF SERVICE I, Kate Mauldin Embry, do hereby certify that I have this day mailed a true and correct copy of the above and foregoing document by U. S. Mail, postage prepaid, and via facsimile, to: Dana J. Swan, Esq. CHAPMAN, LEWIS & SWAN Post Office Box 428 Clarksdale, MS 38614 Honorable Kenneth 1. Thomas Circuit Court Judge P.O. Drawer 548 Cleveland, MS 38732 This, the 7th day of February, 201 I. ~Qc~&.Q;,~ TEM LDINE RY 16