In Re: Loleta B. Wing Trust
| Docket Number: | 2011-CA-00760-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 07-17-2012 Opinion Author: Carlton, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Wills & estates - M.R.C.P. 41(b) - Dismissal for failure to prosecute Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Maxwell, Russell and Fair, JJ. Non Participating Judge(s): Roberts, J. Procedural History: Dismissal Nature of the Case: CIVIL - WILLS, TRUSTS AND ESTATES |
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| Trial Court: |
Date of Trial Judgment: 05-05-2011 Appealed from: Lafayette County Chancery Court Judge: Edwin Hayes Roberts, Jr. Disposition: APPELLANTS’ COMPLAINT CONCERNING ACCOUNTING OF TRUST ASSETS DISMISSED FOR FAILURE TO PROSECUTE Case Number: 2008-110 R |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | In Re: Loleta B. Wing Trust: Todd Wing and Tammy Kinney |
J. HALE FREELAND
M. REED MARTZ |
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| Appellee: | Jimmy R. Wing | H. SCOT SPRAGINS | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Wills & estates - M.R.C.P. 41(b) - Dismissal for failure to prosecute |
| Summary of the Facts: | Loleta B. Wing established a revocable trust in 1996. Originally, Loleta was the settlor, primary beneficiary, and trustee of the trust, and her husband, William R. Wing, served as the successor trustee. In 2003, after the death of William, the trust agreement was amended to add Jimmy Wing, Loleta’s only living son, as a co-trustee. During this same time, Loleta executed a power of attorney to Jimmy. In early 2005, Todd Wing and Tammy Kinney, Loleta’s grandchildren, and some others, filed a conservatorship action involving Loleta. They alleged that Jimmy had severely limited family members’ access to Loleta either in person or by phone, and they demanded, among other things, that Jimmy “account for all expenditures using assets of Loleta Bard Wing whether held in trust, as a trustee or held individually from July 17, 2003[,] until present.” Todd and Tammy issued subpoenas for numerous financial and medical records pertaining to Loleta, Jimmy, and the trust. The 2005 suit was voluntarily dismissed without prejudice. Following the death of Loleta in November 2007, Jimmy prepared and submitted an accounting to Todd and Tammy of the residual trust assets. Shortly thereafter, Todd and Tammy filed the present action, alleging that Jimmy was in a confidential relationship with Loleta and had exercised undue influence over her, which prompted her to spend and/or transfer certain assets directly to Jimmy or for his benefit. Todd and Tammy further alleged that Jimmy, as a trustee, inappropriately spent funds or transferred assets to himself or for his benefit. Todd and Tammy filed a motion for a temporary restraining order seeking to freeze all assets of the trust. The chancery court ordered all persons or entities holding assets of the trust to immediately freeze the accounts or property. Todd and Tammy issued numerous subpoenas to financial and medical institutions associated with Loleta, Jimmy, and the trust. The parties entered into an “Agreed Order of Preliminary Injunction” in which Jimmy agreed to provide Todd and Tammy with a detailed accounting. Jimmy asserts that he submitted the accounting to Todd and Tammy prior to June 2008. On July 1, 2008, Todd and Tammy filed a motion to compel. An order was entered by the court that required Jimmy to fully and completely respond to all discovery previously propounded upon him. Jimmy filed a motion for summary judgment. In response, Todd and Tammy filed a second “renewed” motion to compel. Todd and Tammy also filed a response to Jimmy’s motion for summary judgment, in which they asked the court to dismiss the motion in its entirety and to award them reasonable expenses and attorney’s fees. In 2009, Todd and Tammy filed a “Motion for Summary Judgment [a]s to Liability Only,” but as acknowledged by Todd and Tammy in their appellate brief, the motion was never ruled upon by the chancery court. In 2010, counsel for Todd and Tammy emailed Jimmy’s counsel indicating that information was still missing from Jimmy’s court-ordered accounting. Additionally, Todd and Tammy’s counsel emailed Jimmy with proposed trial dates in June 2011. Jimmy filed a motion to dismiss for lack of prosecution. On that same day, Todd and Tammy filed another motion to compel. The chancery court issued an order dismissing Todd and Tammy’s case with prejudice for failure to prosecute. The chancery court subsequently entered a “Final Order of Dismissal.” Todd and Tammy appeal. |
| Summary of Opinion Analysis: | Todd and Tammy argue that the chancery court abused its discretion by dismissing their case with prejudice. In support, they claim that the delay was largely attributable to Jimmy’s refusal to complete the court-ordered accounting, which had been pending for several years; Jimmy was allowed to frustrate their proactive efforts to advance the litigation and set the matter for trial; they were active and diligent in requesting tens of thousands of documents through subpoena and discovery; they had to file three motions to compel information from Jimmy yet had no such motions filed against them; the period of inactivity reflected in the chancery court’s docket was largely attributable to Jimmy’s failure to participate in the litigation as well as their efforts to consult with a handwriting expert and geriatric psychologist (although neither action is reflected in the record); and the chancery court made several important factual mistakes in analyzing the happenings of the case. M.R.C.P. 41(b) permits a defendant to move for the dismissal of an action for the plaintiff’s failure to prosecute. Considerations to be weighed in determining whether to affirm a dismissal with prejudice under Rule 41(b) include whether there was a clear record of delay or contumacious conduct by the plaintiff; whether lesser sanctions may have better served the interests of justice; and the existence of other aggravating factors. The record shows substantial evidence of a clear record of inexcusable delay by Todd and Tammy. Before Jimmy filed his motion to dismiss on December 21, 2010, no action of record had taken place for almost an entire year. The record supports the chancery court’s assessment that Todd and Tammy’s filing of the third motion to compel was clearly reactionary to Jimmy’s motion to dismiss, as they did not file the motion to compel until after Jimmy notified them of his intention to file the motion to dismiss. Lesser sanctions include fines, costs, or damages against plaintiff or his counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice, and explicit warnings. In this case, the chancery court’s order of dismissal shows that lesser sanctions were considered but rejected. Todd and Tammy failed to present any evidence showing that the chancery court abused its discretion when it considered imposing lesser sanctions but conclusively found that lesser sanctions would not better serve the interests of justice. Aggravating factors include the extent to which the plaintiff, as distinguished from his counsel, was personally responsible for the delay, the degree of actual prejudice to the defendant, and whether the delay was the result of intentional conduct. While Todd and Tammy assert that Jimmy failed to offer proof of any prejudice, the delay alone may result in presumed prejudice to Jimmy, the defendant. As noted by the chancery court, such lengthy and protracted litigation creates issues with the evidence and witnesses’ memories. There are no aggravating factors in this case. Thus, there was no abuse of discretion in the chancery court’s decision to dismiss Todd and Tammy’s case with prejudice. |
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