Hanson v. Disotell, et al.
| Docket Number: | 2010-CT-01169-SCT Linked Case(s): 2010-CA-01169-COA ; 2010-CA-01169-COA ; 2010-CT-01169-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 01-31-2013 Opinion Author: Dickinson, P.J. Holding: Affirmed |
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| Court of Appeals: |
Opinion Link Opinion Date: 11-08-2011 Opinion Author: Barnes, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Contract - Dismissal - M.R.C.P. 41(b) - Action of record Judge(s) Concurring: Randolph, P.J., Lamar, Chandler and Coleman, JJ. Non Participating Judge(s): Pierce, J. Dissenting Author : Kitchens, J. Dissent Joined By : Waller, C.J., and King, J. Procedural History: Dismissal Nature of the Case: CIVIL - CONTRACT Writ of Certiorari: yes Appealed from Court of Appeals |
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| Trial Court: |
Date of Trial Judgment: 06-29-2010 Appealed from: Harrison County Circuit Court Judge: John C. Gargiulo Disposition: MOTION TO DISMISS GRANTED Case Number: A2401-98-00302 |
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| Note: | The Supreme Court affirmed the Court of Appeals and the trial court. The original Court of Appeals opinion can be found at http://courts.ms.gov/Images/Opinions/CO73044.pdf | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Herbert C. Hanson, Jr. |
FLOYD J. LOGAN |
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| Appellee: | John Gregory Disotell, J & J Investments, LLC, West Harrison Farms, LLC, Harrison County Code Administration and Ben G. Clark | TIM C. HOLLEMAN | ||
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| Topic: | Contract - Dismissal - M.R.C.P. 41(b) - Action of record |
| Summary of the Facts: | OPM-USA leased property from Herbert Hanson to construct a cellular tower, but the Harrison County Building Code Administrator denied OPM-USA a construction-site permit. OPM-USA then entered into a contract with Hanson's neighbor, West Harrison Farms, LLC. Hanson sued OPM-USA for breach of contract, and the parties settled. Hanson then amended his complaint to include as additional defendants: John Gregory Disotell, West Harrison Farms, J & J Investments, LLC, Clark, and Harrison County. Harrison County filed a motion for summary judgment. The trial judge granted the defendants summary judgment. On appeal, the Supreme Court reversed and remanded for trial. After remand, nothing was filed in the record until four years later when Harrison County moved to substitute counsel. Several months later, Hanson filed a motion to set the case for trial, and Harrison County, Clark, Disotell, and J & J Investments filed a motion to dismiss for lack of prosecution. The trial court granted the motion to dismiss. West Harrison Farms then filed its motion to dismiss, and Hanson filed a motion to reinstate the case for trial. The trial court denied Hanson’s motion and granted a final judgment of dismissal for all the defendants. Hanson appealed, and the Court of Appeals affirmed. The Supreme Court granted certiorari. |
| Summary of Opinion Analysis: | The trial court dismissed Hanson’s complaint under M.R.C.P. 41(b). Either delay or contumacious conduct provides a sufficient basis for a trial judge to dismiss under Rule 41(b), if the trial judge finds that a lesser sanction would not serve the best interests of justice. In this case, the court found that the plaintiff’s failure to take any action of record for four years and the fact that Hanson filed his motion for a trial date in reaction to the defendants’ motion to substitute counsel, showed dilatoriness and delay. The facts are more than sufficient to support the court’s decision. |
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