Barry v. Reeves
| Docket Number: | 2009-CA-01124-SCT Linked Case(s): 2009-CA-01124-SCT |
|
| Supreme Court: | Opinion Link Opinion Date: 09-30-2010 Opinion Author: Kitchens, J. Holding: Affirmed in part, reversed and remanded in part. |
|
| Additional Case Information: |
Topic: Legal malpractice - Failure to prosecute - M.R.C.P. 41(b) - Amendment of complaint - M.R.C.P. 15(a) Judge(s) Concurring: Carlson, P.J., Randolph and Lamar, JJ. Non Participating Judge(s): Waller, C.J., and Pierce, J. Concur in Part, Dissent in Part 1: Graves, P.J., With Separate Written Opinion. Concur in Part, Dissent in Part Joined By 1: Dickinson and Chandler, JJ. Procedural History: Dismissal Nature of the Case: CIVIL - LEGAL MALPRACTICE |
|
| Trial Court: |
Date of Trial Judgment: 02-13-2009 Appealed from: Hinds County Circuit Court Judge: Winston Kidd Disposition: Charles Barry filed this legal malpractice action against his former attorney, John R. Reeves. After the case had been pending for nearly seven and one-half years, the trial court granted Reeves’s motion to dismiss the case for failure to prosecute. Case Number: 251-01-000907-CIV |
|
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Charles Barry |
JOEL W. HOWELL, III |
|
|
| Appellee: | John R. Reeves | JOHN DOYLE MOORE | ||
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. |
|
| Topic: | Legal malpractice - Failure to prosecute - M.R.C.P. 41(b) - Amendment of complaint - M.R.C.P. 15(a) |
| Summary of the Facts: | Charles Barry filed a legal malpractice action against his former attorney, John Reeves. After the case had been pending for nearly seven and one-half years, the trial court granted Reeves’s motion to dismiss the case for failure to prosecute. Barry appeals. |
| Summary of Opinion Analysis: | Issue 1: Failure to prosecute Dismissal for failure to prosecute pursuant to M.R.C.P. 41(b) is reserved for the most egregious cases. A ruling dismissing the case with prejudice on this basis will be affirmed only if there is a showing of a clear record of delay or contumacious conduct by the plaintiff, and where lesser sanctions would not serve the best interest of justice. Here, the trial court’s order dismissing the case for failure to prosecute emphasizes the dates on which certain events occurred, including: June 21, 1996, when the underlying negligence is said to have occurred; August 17, 2001, when the complaint was filed against Reeves; June 10, 2003, when the matter was stayed due to ANLIR’s (Reeves’ insurer) receivership proceedings; December 1, 2004, when the stay was lifted; and April 10, 2007, when the motion to dismiss the case for failure to prosecute was filed. The trial court found that Barry had not conducted discovery after he filed the complaint on August 17, 2001, yet the record reveals that both parties actively participated in the discovery process by requesting, producing, and supplementing discovery until at least April 30, 2002. As for the trial court’s finding that Barry failed to prosecute the case after the stay had been lifted on December 1, 2004, the trial court neglected to acknowledge that the stay was lifted in response to Barry’s filing the motion to lift the stay. In addition, the trial court did not note that Barry had filed a motion for trial setting and for additional relief on September 30, 2005, a motion on which a hearing was held in November 2005. The record also included three letters sent in 2005 and 2006 in which Barry sought the aid of counsel opposite in selecting a date upon which the case could be tried. Unsuccessful in that effort, Barry sent a letter to the trial court on April 5, 2007, requesting a status conference on the case. It was not until after these efforts by Barry that Reeves filed his motion to dismiss for failure to prosecute. The mere fact that delay occurs in the prosecution of a case is not sufficient to warrant dismissal for want of prosecution. It must be clear from the record that the delay was the result of the plaintiff’s failure to prosecute the claim, rather than extrinsic factors beyond the control of the plaintiff. It is far from clear that the delay in the prosecution of this case is attributable to Barry. Indeed, each period of inactivity was interrupted by a positive action by Barry to expedite the litigation. What is clear from the record is that significant, protracted delays in the prosecution of this case were beyond Barry’s control, including the near twenty-month delay attributable to ANLIR’s receivership, the seventeen-month delay caused by defense counsel’s failure to respond to Barry’s letters, and the trial court’s failure to rule on Barry’s motion for a status conference. Accordingly, it cannot be said that there is a clear record establishing that Barry delayed the case’s prosecution. Prior to dismissing the case for failure to prosecute, the trial court had not imposed any lesser sanctions, nor had it threatened counsel for Barry with lesser sanctions, and nothing in the record suggests that the trial court considered lesser sanctions prior to dismissing the case. Because there is no clear record of delay or contumacious conduct on the part of Barry, and the trial court did not consider lesser sanctions prior to its dismissal of the case for failure to prosecute, the trial court abused its discretion in dismissing this case. Issue 2: Amendment of complaint M.R.C.P. 15(a) allows a party to amend his or her complaint with leave of court, and notes that leave shall be freely given when justice so requires. Barry filed his initial complaint on August 17, 2001, and sought leave to file an amended complaint three years later, on August 31, 2004. The only variance between the two complaints was the addition of a demand for punitive damages in the proposed amended complaint. Barry has offered no reason for his failure to plead punitive damages in his initial complaint and for waiting three years to amend his complaint to include the demand for punitive damages. Thus, Barry effectively has conceded his lack of diligence in failing to plead punitive damages in the initial complaint. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
