Hanson v. Disotell, et al.


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Docket Number: 2010-CA-01169-COA
Linked Case(s): 2010-CA-01169-COA ; 2010-CT-01169-SCT ; 2010-CT-01169-SCT

Supreme Court: Opinion Link
Opinion Date: 01-31-2013

Court of Appeals: Opinion Link
Opinion Date: 11-08-2011
Opinion Author: Barnes, J.
Holding: Affirmed

Additional Case Information: Topic: Contract - Failure to prosecute - M.R.C.P. 41(b) - Procedural due process
Judge(s) Concurring: Lee, C.J., Griffis, P.J., Ishee, Roberts, Carlton and Maxwell, JJ.
Non Participating Judge(s): Myers, J.
Dissenting Author : Russell, J.
Dissent Joined By : Irving, P.J.
Procedural History: Dismissal
Nature of the Case: CIVIL - CONTRACT
Appealed from Court of Appeals

Trial Court: Date of Trial Judgment: 06-29-2010
Appealed from: Harrison County Circuit Court
Judge: John C. Gargiulo
Disposition: MOTION TO DISMISS GRANTED
Case Number: A2401-98-00302

Note: The Supreme Court affirmed the COA on 1/31/2013. The SCT opinion can be found at http://courts.ms.gov/Images/Opinions/CO82910.pdf

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Herbert C. Hanson, Jr.




FLOYD J. LOGAN



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief

  • Appellee: John Gregory Disotell, J & J Investments, LLC, West Harrison Farms, LLC, Harrison County Code Administration and Ben G. Clark HENRY LAIRD, TIM C. HOLLEMAN, JEFFREY LOEWER HALL  

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    Topic: Contract - Failure to prosecute - M.R.C.P. 41(b) - Procedural due process

    Summary of the Facts: Herbert Hanson Jr. filed an action for breach of contract and intentional interference with a contract. After seven years of court filings and discovery, the circuit court granted a summary judgment against Hanson. Hanson filed an interlocutory appeal, and the Mississippi Supreme Court reversed the summary judgment and remanded the case for trial in 2005. Hanson, however, did not file anything of record from 2005 to 2009. As a result, the circuit court granted a motion to dismiss for failure to prosecute filed by Harrison County and Ben Clark, and a final judgment dismissing the claim as to all Appellees was entered. Hanson appeals.

    Summary of Opinion Analysis: Issue 1: Failure to prosecute Hanson argues that the circuit court’s dismissal of his claim for failure to prosecute under M.R.C.P. 41(b) was error as the delay in prosecution was attributable to the Appellees’ motions for continuances, the after-effects of Hurricane Katrina on the Gulf Coast judicial system, the retirement of a circuit judge, and the substitution of counsel for Harrison County. He further maintains that since all the material witnesses were deposed, there was no prejudice suffered by Appellees relating to relocated or deceased witnesses. 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. The record clearly shows delay by Hanson. After the Supreme Court issued its mandate in July 2005, Hanson filed nothing of record until October 2, 2009, when he filed his motion to set a trial. Despite all the extenuating circumstances that occurred during that period, such as Hurricane Katrina and the retirement of the circuit judge, four years is a considerable period of time for Hanson to fail to file anything of record with the court. There were several continuances filed by the defendants as noted by Hanson; however, these were all filed prior to the 2005 order of the Supreme Court. The only item of note during this period is a letter dated August 16, 2007, to Appellees’ counsel regarding setting a court date. Hanson’s filing of the motion to set trial was clearly reactionary as he did not file the motion until after Harrison County had filed its motion to substitute counsel in 2009. Even when there is no evidence of actual prejudice to the defendants, prejudice may also be presumed for unreasonable delay; but the preference for a decision on the merits must be weighed against any such presumption. The circuit judge in this case contemplated lesser sanctions in his order and found prejudice to the defendants. The mere fact that Clark was unavailable as a witness might not have been sufficient to show prejudice as his deposition was preserved for the record. However, when considered with the fact that Hanson filed nothing with the circuit court from 2005 to 2009 and that it had been eleven years since the complaint was filed, this is sufficient to support the circuit court’s finding of prejudice. Accordingly, the circuit court’s dismissal for failure to prosecute under Rule 41(b) was not an abuse of discretion. Issue 2: Procedural due process Hanson argues that since the circuit court has not adopted a written rule “governing the case trial setting procedure,” he was denied due process. While Hanson argues that much of the delay resulted from counsel being unable to agree on a trial date, Hanson had the ability to file a motion to set trial prior to October 2009. It was his responsibility to prosecute his case, not the defendants’ or the circuit court’s.


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