Holly v. Harrah's Tunica Corp., et al.
| Docket Number: | 2006-CP-00805-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 08-07-2007 Opinion Author: GRIFFIS, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Malicious prosecution - Involuntary dismissal - Failure to obtain counsel - M.R.C.P. 41(b) - M.R.C.P. 6(d) - M.R.C.P. 60(b) Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Dismissal Nature of the Case: Malicious prosecution, abuse of process, civil conspiracy |
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| Trial Court: |
Date of Trial Judgment: 04-25-2006 Appealed from: TUNICA COUNTY CIRCUIT COURT Judge: Al Smith Disposition: MOTION TO SET ASIDE ORDER OF DISMISSAL DENIED. Case Number: 2001-0201 |
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| Party Name: | Attorney Name: | |||
| Appellant: | NORRIS HOLLY, SR. AND BOBBIE D. HOLLY |
NORRIS HOLLY, SR. (PRO SE)
BOBBIE D. HOLLY (PRO SE) |
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| Appellee: | HARRAH’S TUNICA CORPORATION, HARRAH’S OPERATING COMPANY, INC., KYM SLEEZER, DAVID POTTS AND ROBERT CASEY | JOHN W. SIMMONS GEORGE W. LOVELAND, II |
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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: | Malicious prosecution - Involuntary dismissal - Failure to obtain counsel - M.R.C.P. 41(b) - M.R.C.P. 6(d) - M.R.C.P. 60(b) |
| Summary of the Facts: | Norris Holly, Sr., and Bobbie Holly brought this action against Harrah’s Tunica Corporation, Harrah’s Operating Company, Inc., Kym Sleezer, David Potts, Robert Casey, and John Does 1-10 for malicious prosecution, abuse of process, civil conspiracy, intentional infliction of emotional distress, menace, negligence, assault, defamation, false imprisonment, battery, and loss of consortium. The trial court dismissed the action for failure to obtain counsel. The Hollys appeal. |
| Summary of Opinion Analysis: | M.R.C.P. 41(b) provides for an involuntary dismissal with prejudice for failure of the plaintiff to prosecute or to comply with these rules or any order of court. The rule also allows for the dismissal to operate as an adjudication on the merits. Dismissal for failure to comply with an order of the court is appropriate only where there is a clear record of delay or contumacious conduct and lesser sanctions would not serve the best interests of justice. In this case, there was no factual basis to support the court’s entry of the order of dismissal. The order of dismissal was entered two days after the plaintiffs did exactly what they were ordered to do, acquire substitute counsel. Also, the procedural requirements were not followed and proper notice was not permitted by the court’s action. The defendants served a copy of the motion to dismiss on the Hollys. The motion was not set for hearing. M.R.C.P. 6(d) clearly required that the defendants give the plaintiffs notice of the motion and at least five days to respond. Also, there was no legal basis to support the dismissal since there is no requirement that a party must be represented by an attorney. Therefore, dismissing a party’s lawsuit simply because that party has not acquired an attorney is clearly an abuse of discretion. The defendants argue that the motion to set aside was not timely brought. However, the motion to set aside was timely under M.R.C.P. 60(b). The Hollys made their motion within a matter of days and argued that the trial court relied on a mistake of fact. |
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