Marshall v. Burger King
| Docket Number: | 2007-CA-00148-COA Linked Case(s): 2007-CT-00148-SCT ; 2007-CA-00148-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 09-16-2008 Opinion Author: Ishee, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Personal injury - Discovery violations - M.R.C.P. 37 - Dismissal without prejudice - M.R.C.P. 41(b) Judge(s) Concurring: Kiing, C.J., Lee and Myers, P.JJ., Irving, Chandler, Griffis, Barnes, Roberts, and Carlton, JJ. Procedural History: Dismissal Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 01-22-2007 Appealed from: WARREN COUNTY CIRCUIT COURT Judge: Frank G. Vollor Disposition: MOTION TO REINSTATE CAUSE OF ACTION DENIED Case Number: 05,0061-CI |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | RICHARD MARSHALL |
JOY RACHELLE JACKSON |
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| Appellee: | BURGER KING, SYDRAN AND THE WORLEY COMPANIES | JOHN BRIAN HYNEMAN |
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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: | Personal injury - Discovery violations - M.R.C.P. 37 - Dismissal without prejudice - M.R.C.P. 41(b) |
| Summary of the Facts: | Marshall filed his cause of action on April 1, 2005, for damages allegedly caused by a slip and fall at a Burger King. Marshall’s complaint was filed two days before the statute of limitations was set to expire. Upon answering the complaint, Burger King propounded interrogatories and requests for production of documents to Marshall on June 10, 2005. A scheduling order was also entered by the Warren County Circuit Court, which set the discovery deadline for March 15, 2006. Marshall failed to respond to Burger King’s discovery requests. In response, Burger King sent two separate letters to Marshall asking him to comply with its request. Four months later, having still received no response from Marshall, Burger King filed a motion to dismiss for failure to prosecute. A hearing was set, but it was subsequently continued until February 3, 2006, at the request of Marshall’s counsel. During that time, Marshall filed a list of experts with the trial court and submitted a copy to Burger King. The document simply listed the names and addresses of the medical experts Marshall intended to call. However, the document failed to include certain information required by M.R.C.P. 26(b)(4) concerning experts. The document was also not accompanied by any responses to Burger King’s interrogatories or requests for production of documents. The judge ordered Marshall to respond to the propounded discovery requests within fourteen days. Marshall furnished an unrestricted medical release to Burger King within the court-ordered time period, but failed to respond to Burger King’s other discovery requests. Two weeks prior to trial, Burger King filed a second motion to dismiss, citing Marshall’s failure to properly execute his discovery responses within the court-ordered time frame. The judge granted the motion to dismiss. Marshall appeals. |
| Summary of Opinion Analysis: | Burger King’s motion to dismiss was based upon Marshall’s failure to comply with two separate orders issued by the trial court: the scheduling order and the order compelling discovery. Marshall argues that dismissal of his case was not warranted, because his only failure to comply with the court order was not swearing to the responses and this was due to an oversight by his attorney. M.R.C.P. 37 grants the trial court a multitude of options in meting out sanctions for discovery violations, including striking pleadings, staying the proceedings, or dismissing the action. If the failure to comply is because of inability to comply, rather than because of willfulness, bad faith, or any fault of the party, the action may not be dismissed, nor a default judgment given, and less severe sanctions are the most that can be invoked. The required intent may be shown by a party’s failure to obey a court order, but that can be countered by proof of an inability and not a refusal to comply. The record is clear that any responses submitted by Marshall were found to be incomplete by the trial court on two separate occasions. The record is also clear that the trial court considered lesser sanctions when faced with Burger King’s first motion to dismiss rather than summarily dismissing the case. The record lacks evidence that Marshall’s noncompliance was based on an inability to comply. Both the trial court and Burger King were very lenient and patient in allowing Marshall sufficient time to properly respond to the discovery. It was Marshall’s duty to offer complete and sufficient responses to Burger King’s interrogatories in accordance with the Mississippi Rules of Civil Procedure. Further, Marshall was fully aware of the trial court’s order requiring him to properly respond to the interrogatories, and still he chose not to fully comply. Consequently, the trial court had authority to dismiss the case. Marshall also argues that the trial court’s dismissal without prejudice has been converted to a dismissal with prejudice due to the fact that the statute of limitations has run, and he is barred from refiling his case. Unless otherwise specifically ordered by the court, an involuntary dismissal under M.R.C.P. 41(b) ordinarily operates as an adjudication upon the merits and is with prejudice. However, past Mississippi practice has tempered this harsh result by allowing dismissed cases to be reinstituted, except in extreme situations. The general rule is that the dismissed case cannot be reinstated after the expiration of the term of court within which the dismissal was entered unless the dismissal was defective, or fraud, mistake or accident was involved. Marshall waited too long to file his motion to reinstate the case. Marshall had until November 17, 2006, to reinstate or, alternatively, re-file his case. However, Marshall waited almost an entire month before filing his motion to reinstate his case. Marshall has provided no evidence that the trial court’s dismissal was defective or the result of fraud, accident, or mistake. Consequently, the statute of limitations expired. |
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