Collins v. Koppers, Inc.
| Docket Number: | 2009-CA-01678-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 04-21-2011 Opinion Author: Lamar, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Personal injury - Involuntary dismissal - M.R.C.P. 41(b) - Sanctions - M.R.C.P. 11(b) - Section 11-55-5(1) - Section 9-1-41 - Miss.R.Prof.Cond. 1.5 Judge(s) Concurring: Waller, C.J., Carlson and Dickinson, P.JJ., Randolph, Kitchens, Chandler and Pierce, JJ. Non Participating Judge(s): King, J. Procedural History: Dismissal Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 09-09-2009 Appealed from: Grenada County Circuit Court Judge: Joseph H. Loper Disposition: The trial court granted the defendants' motion to dismiss and awarded attorneys' fees. Case Number: 2006-161-CV-L |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Shirley Jean Collins |
HUNTER W. LUNDY, KRISTIE M. HIGHTOWER, WILBUR O. COLOM |
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| Appellee: | Koppers, Inc. f/k/a Koppers Industries, Inc., Beazer East, Inc. f/k/a Beazer Material and Services, Hanson, PLC, Hanson Building Material Limited f/k/a Hanson, PLC, Hanson Holdings Limited, Hanson Holdings Basalt, Inc., Hanson Holdings Aragonite, Inc., HBMA Holding, Inc. and Three Rivers Management | CHRISTOPHER A. SHAPLEY, ROBERT L. GIBBS, WILLIAM ‘TREY’ JONES, III, JOSEPH A. SCLAFANI, JAY GORE, III, REUBEN V. ANDERSON | ||
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| Topic: | Personal injury - Involuntary dismissal - M.R.C.P. 41(b) - Sanctions - M.R.C.P. 11(b) - Section 11-55-5(1) - Section 9-1-41 - Miss.R.Prof.Cond. 1.5 |
| Summary of the Facts: | Shirley Collins filed suit against Koppers, Inc., and several other defendants, alleging that she was injured as a result of environmental contamination by a wood-treatment facility. The defendants filed a motion to dismiss after Collins repeatedly failed to comply with a court order to provide expert opinions that causally linked her injuries to the alleged contamination. The trial court granted the defendants’ motion to dismiss and awarded them attorneys’ fees. Collins appeals. |
| Summary of Opinion Analysis: | Issue 1: Involuntary dismissal M.R.C.P. 41(b) allows for the involuntary dismissal of a case in certain situations. Rule 41(b) is concerned with those orders that are necessary for preparation of trial litigation as well as the trial itself and its procedure insofar as it relates to the rules of civil procedure. Dismissal for failure to comply with an order of the trial 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. If the record does not reflect that the trial court considered alternative sanctions, a Rule 41(b) dismissal is less likely to be affirmed. Rule 41(b) dismissals are often affirmed in cases where there is at least one aggravating factor present. Aggravating factors include the plaintiff’s (as opposed to her attorney’s) responsibility for the delay, actual prejudice to the defendant, or the fact that intentional conduct caused the delay. Collins argues that dismissal was improper because the record does not reflect delay or contumacious conduct, the trial judge did not consider lesser sanctions, and no aggravating factors are present. The record shows a clear pattern of delay by Collins and her attorneys. Collins has, for more than three years, refused to provide the defendants with any meaningful expert-witness information. Although the record does not indicate that the trial judge considered lesser sanctions in this case, lesser sanctions would not have served the best interests of justice. Finally, the record evidences that intentional conduct caused delay in the proceedings. The defendants’ discovery requests have been pending since 2006. Collins repeatedly has referred to the opinions of experts from other, related litigation in several of her pleadings, yet she has failed to this day to produce any expert evidence specific to her claims. She has made no attempt to explain why she has been unable to obtain any expert information that pertains specifically to her claims. The record is replete with instances of the failure of Collins’s counsel to abide by the orders of the trial court. Thus, the trial court’s dismissal of Collins’s complaint with prejudice was not error. Issue 2: Sanctions Collins argues that her complaint was not “frivolous,” and that the award of attorneys’ fees is therefore improper. She also argues that, in the alternative, the trial judge abused his discretion by not ordering reduced fees. Finally, she argues that the trial judge abused his discretion when he held attorneys who were not “active” in the litigation jointly and severally liable. A pleading or motion is “frivolous” under M.R.C.P. 11(b) and section 11-55-5(1) when the pleader or movant has no hope of success. A plaintiff’s belief alone will not garner a ‘hope of success’ where a claim has no basis in fact. The trial judge in this case properly considered all the required factors and that he did not abuse his discretion when he found that Collins’s complaint was frivolous. The reasonableness of an attorney’s fee award is determined by reference to the factors set forth in Rule 1.5 of the Mississippi Rules of Professional Conduct. In addition to these factors, section 9-1-41 instructs the trial court to make the award based on the information already before it and the court’s own opinion based on experience and observation. A trial judge is to determine a reasonable fee, based on the number of hours reasonably expended on the litigation, multiplied by a reasonable hourly rate, and consider the eight factors enumerated in Rule 1.5. Here, the trial judge did not abuse his discretion when he found that the submitted attorneys’ fees were reasonable. He applied the correct method in determining the reasonableness of the submitted fees, and an award of approximately $10,000 in attorneys’ fees for almost four years of litigation was not an abuse of his discretion. With regard to Collins’ argument regarding several “non-active” attorneys, the trial judge did not abuse his discretion, as his order makes clear that only those attorneys who had made an entry of appearance or attached their names to any pleadings, i.e., the “offending attorneys,” would be affected. |
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