Cox v. Cox
| Docket Number: | 2006-CA-01786-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 02-28-2008 Opinion Author: Waller, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Real property - Failure to prosecute - M.R.C.P. 41(b) - M.R.E. 608(b) - Findings of fact - M.R.C.P. 52(a) Judge(s) Concurring: Smith, C.J., Diaz, P.J., Easley, Carlson, Dickinson, Randolph and Lamar, JJ. Concurs in Result Only: Graves, J. Procedural History: Dismissal Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 07-29-2006 Appealed from: LOWNDES COUNTY CHANCERY COURT Judge: Kenneth M. Burns Disposition: The trial court dismissed the case for failure to prosecute. Case Number: 27,418-B |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | A. Jennings Cox, Jr. |
Joseph N. Studdard |
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| Appellee: | Margaret Louise Peggy Cox | Gary L. Geeslin | ||
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: | Real property - Failure to prosecute - M.R.C.P. 41(b) - M.R.E. 608(b) - Findings of fact - M.R.C.P. 52(a) |
| Summary of the Facts: | Louise Cox, an 88-year-old widow, executed a Warranty Deed which transferred approximately 281 acres in Lowndes County to her daughter Margaret Louise (Peggy) Cox. Peggy employed attorney Shields Sims to prepare the necessary legal documents and accompanied her mother to Sims’s law office to execute the deed. Prior to the execution of the deed, the 281 acres were to pass under Louise’s will to her children, Peggy and A. Jennings Cox, Jr., in equal shares. Shortly thereafter, Jennings filed, on Louise’s behalf, a lis pendens notice and complaint against Peggy to set aside the deed. One month later, Louise filed a letter in the chancery court which stated that Jennings’s attorney, J. Joshua Stevens, Jr., never had her consent to file the complaint against Peggy and requested that the suit be dropped. Jennings filed nothing on his claim from November 25, 1996, when he filed his Amended Notice of Deposition, until June 3, 2005, when he served Peggy with interrogatories and requests for production of documents. After initially attempting to quash Jennings’s interrogatories and requests for production, Peggy filed a motion to dismiss for failure to prosecute on October 5, 2005. The chancellor entered an order denying Peggy’s motion to dismiss, but reserved the right to dismiss the case later, depending on the proof. A trial was held and at the conclusion of Jennings’s case-in-chief, Peggy renewed her motion to dismiss based on Jennings’s failure to prosecute and failure to show a right to relief. The chancellor granted Peggy’s motion to dismiss on the grounds of failure to prosecute. Jennings appeals. |
| Summary of Opinion Analysis: | Issue 1: Failure to prosecute Jennings argues that the chancellor relied primarily on the passage of time and that factors other than delay must be present to warrant dismissal under Rule 41(b). Considerations to be weighed in determining whether to affirm a dismissal with prejudice under M.R.C.P. 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. Factors other than delay are not required. The standard is whether there is a clear record of delay or contumacious conduct by the plaintiff. In this case, it was the chancellor’s later finding of prejudice—not the passage of time alone—that tipped the balance in favor of dismissal. Jennings also argues that he has consistently has pursued his claim and has been through four attorneys as part of his effort to advance the case. While efforts to secure substitute counsel may constitute excusable delay, the delay in this case is significant—approximately seven years and one month in which no activity occurred on the docket and almost nine years in which Jennings took no action on the case. Even assuming that informal settlement discussions took place during the significant period of inactivity, Jennings should have abandoned settlement efforts and pursued litigation on his claim when it became apparent that negotiations were unyielding. Jennings argues that the chancellor failed to consider lesser sanctions. A Rule 41(b) dismissal is less likely to be upheld where there is no indication in the record that the lower court considered any alternative sanctions. The fact that lesser sanctions were argued before the chancellor and the chancellor considered all arguments prior to granting dismissal is sufficient to show that lesser sanctions were considered and rejected. In addition, lesser sanctions could not cure the prejudice to Peggy caused by the delay. Jennings argues that no aggravating factors are present in this case. 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. Jennings must bear some responsibility for an almost nine-year period in which no substantive action was taken. The chancellor found that Peggy would suffer prejudice because of the unavailability of Louise, who was now deceased; the unavailability of physicians who might have examined Louise before trial; and the unavailability of long-time family attorney Robin Weaver. Because of the limited scope of Louise’s deposition, the purpose of which was primarily to show that she did not join in or authorize Jennings’ lawsuit and which was never completed, the chancellor did not err in finding prejudice to Peggy because of Louise’s intervening death. However, Peggy did not suffer prejudice because of the unavailability of physicians who could have examined Louise before trial. There is no evidence that such doctor(s) had any knowledge with respect to Louise’s mental condition on the date the deed was executed, or that such doctor(s), if he or she had such knowledge, was unavailable. Also, the unavailability of Robin Weaver could not have prejudiced Peggy. Under M.R.E. 608(b), Robin Weaver could not have testified about the Sunflower property deed since such testimony would be an effort to prove specific instances of conduct through extrinsic evidence in order to impeach Jennings. While prejudice may be presumed from unreasonable delay, nothing in the record indicates that the passage of time altered any physical evidence. Given the length of time that passed in this case, however, and the effect that time has on the memory of witnesses, Peggy is due some measure of presumed prejudice. While a fine balance must be struck between the interests of having a case tried on the merits and the interests of judicial economy, the chancellor did not abuse his discretion in dismissing this case. Issue 2: Findings of fact Jennings argues that the case should be remanded for specific findings of fact and conclusions of law as required by M.R.C.P. 52(a). M.R.C.P. 41(b) makes specific findings of fact and conclusions of law discretionary with the trial court. The chancellor’s bench opinion was sufficient to explain and support his adjudication of the matter. |
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