Carter v. Spears

• Decision Date: 28 April 2020
• Docket Number: NO. 2019-CA-00031-COA,2019-CA-00031-COA
• Citation: 294 So.3d 1263
• Parties: Rita Spears CARTER, Appellant v. Damon S. SPEARS, Appellee
• Court: Mississippi Court of Appeals

294 So.3d 1263

Rita Spears CARTER, Appellant

v.Damon S. SPEARS, Appellee

NO. 2019-CA-00031-COA

Court of Appeals of Mississippi.

April 28, 2020

ATTORNEY FOR APPELLANT: NANCY E. STEEN, Hattiesburg

ATTORNEY FOR APPELLEE: MATTHEW D. MILLER

BEFORE BARNES, C.J., WESTBROOKS AND C. WILSON, JJ.

C. WILSON, J., FOR THE COURT:

¶1. The Lamar County Chancery Court dismissed Rita Spears Carter's petition for contempt against Damon S. Spears for failure to prosecute, in accordance with Rule 41(b) of the Mississippi Rules of Civil Procedure. Carter appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Carter and Spears divorced on May 16, 2001. At the time of the divorce, the parties had two minor children. As part of the divorce order, the chancery court ordered Carter to pay the insurance premiums for the children's medical and dental insurance. The chancery court ordered Spears to pay child support. In addition, the court ordered Spears to pay the children's medical and dental expenses up to the amount Carter paid in premiums; the parties were ordered to divide any such expenses above that amount. Just three months after the chancery court's divorce order, Carter filed a contempt petition against Spears for unpaid child support and medical bills. Thus began an extensive history of litigation between the parties.

¶3. Relevant to this appeal, Carter filed a contempt petition on March 7, 2011. In this petition, Carter contended that Spears had failed to pay child support and failed to reimburse her for medical bills. After no activity in the case for over a year, the chancery clerk issued a notice of dismissal to counsel of record on June 25, 2013, advising that the petition would be dismissed if there was no activity in the case within thirty days. Carter took no further action, and the court dismissed the petition for want of prosecution on August 1, 2013.

¶4. On June 2, 2014, Carter filed another "Petition for Contempt and Enforcement of Judgment" against Spears. Similar to her 2011 petition, Carter again alleged that Spears had failed to pay child support and had failed to reimburse her for the children's medical expenses. As with Carter's 2011 petition, Carter took no action to prosecute her 2014 petition for over a year. The chancery clerk issued another notice of dismissal on July 24, 2015, stating that Carter's case would be dismissed if there was no further activity within thirty days. In response, Carter filed a motion for a trial setting on July 28, 2015, and the chancery court set a hearing on October 13, 2015.

¶5. On October 9, 2015, Spears responded to Carter's 2014 petition and served Carter with discovery requests. At the October 13, 2015 hearing, the chancery court set the contempt matter for trial on January 20, 2016, and ordered the parties to complete discovery before a pretrial conference set for December 15, 2015. Carter did not respond to Spears's discovery requests by the court's deadline. Consequently, Spears filed a motion to compel Carter's discovery responses and a motion for continuance of the trial setting.

¶6. The parties appeared before the chancery court on January 20, 2016. Because Carter had still not responded to Spears's discovery requests, the chancellor continued the trial and ordered Carter to provide responses to Spears's written discovery requests. The chancellor also suspended Spears's further child support obligations pending trial on the merits.

¶7. Following the chancery court's directives in January 2016, this matter again fell dormant for over a year. As a result, the chancery clerk filed another notice of dismissal and motion to dismiss for want of prosecution on March 28, 2017. In response, Carter filed a motion for trial setting on April 6, 2017. The next activity in the case occurred almost a year later, on March 29, 2018, when Carter first served incomplete, unverified responses to Spears's discovery requests—originally propounded in October 2015. After receiving the discovery responses, Spears filed motions on May 30, 2018, to compel Carter's discovery responses and to dismiss Carter's petition. The chancery court held a hearing on the parties’ pending motions on June 13, 2018.

¶8. On December 7, 2018, the chancery court granted Spears's motion to dismiss pursuant to Rule 41(b) of the Mississippi Rules of Civil Procedure. In determining that dismissal was warranted, the court found that (1) the record in this case demonstrated a "clear record of delay," noting that the "lengthy delays demonstrate[d] dilatory conduct on the part of Carter in prosecuting her claims," and (2) lesser sanctions would not suffice. The chancellor also considered "whether any aggravating factors or prejudice to Spears exist[ed]," finding that the "prejudice caused by fading memories due to the passage of time can be presumed to support the dismissal of this action under Rule 41(b)." The chancery court found that Carter had failed meaningfully to advance her claims.¹ The court also noted that Carter failed to respond to Spears's discovery requests for well over two years, and "Carter ... provided no justification for these delays." Accordingly, the chancery court dismissed Carter's claims.

¶9. Carter now appeals, contending that the chancery court erred in dismissing her 2014 petition for want of prosecution. Finding no error, we affirm.

STANDARD OF REVIEW

¶10. "We employ an abuse of discretion standard when reviewing a trial court's dismissal for failure to prosecute pursuant to Rule 41(b)." Holder v. Orange Grove Med. Specialties, P.A. , 54 So. 3d 192, 196 (¶16) (Miss. 2010) (citing Am. Tel. & Tel. v. Days Inn of Winona , 720 So. 2d 178, 180 (Miss. 1998) ). However, we are mindful that "[b]ecause the law favors a trial of the issues on the merits, a dismissal for lack of prosecution is employed reluctantly." Id . (quoting Miss. Dep't of Human Servs. v. Guidry , 830 So. 2d 628, 632 (¶13) (Miss. 2002) ).

DISCUSSION

¶11. "For failure of the plaintiff to prosecute or to comply with [the Rules of Civil Procedure] or any order of court, a defendant may move for dismissal of an action or of any claim ...." Miss. R. Civ. P. 41(b). We consider "[w]hat constitutes a failure to prosecute ... on a case-by-case basis." Cox v. Cox , 976 So. 2d 869, 874 (¶14) (Miss. 2008). "The supreme court has provided considerations to be weighed in determining whether to affirm a Rule 41(b) dismissal with prejudice: ‘(1) whether there was a clear record of delay or contumacious conduct by the plaintiff; (2) whether lesser sanctions may have better served the interests of justice; and (3) the existence of other aggravating factors.’ " Sullivan v. Maddox , 283 So. 3d 222, 234-35 (¶54) (Miss. Ct. App. 2019) (quoting Cox , 976 So. 2d at 874 (¶14) ). " ‘Delay alone may suffice’ for dismissal under Rule 41(b)." Holder , 54 So. 3d at 198 (¶20) (quoting Cox , 976 So. 2d at 875 (¶18) ).

¶12. "We acknowledge that ‘[t]here is no set time limit on the prosecution of an action once it has been filed ....’ " Sullivan , 283 So. 3d at 235 (¶55) (quoting Holder , 54 So. 3d at 197 (¶17) ). "We also are mindful of the fact that dismissal with prejudice is an extreme and harsh sanction that deprives a litigant of the opportunity to pursue [her] claim, and any dismissals with prejudice are reserved for the most egregious cases." Holder , 54 So. 3d at 197 (¶17) (internal quotation marks omitted) (quoting Hoffman v. Paracelsus Health Care Corp. , 752 So. 2d 1030, 1034 (¶11) (Miss. 1999) ). "However, if the record shows that a plaintiff has been guilty of dilatory or contumacious conduct, or has repeatedly disregarded the procedural directives of the court, such a dismissal is likely to be upheld." Hensarling v. Holly , 972 So. 2d 716, 720 (¶8) (Miss. Ct. App. 2007). "[T]he cases in which [the supreme court] has affirmed the dismissal of a complaint for failure to prosecute often feature a substantial period of delay that clearly evinces the plaintiff's prolonged failure to pursue [her] claims."

SW 98/99 LLC v. Pike County , 242 So. 3d 847, 854 (¶23) (Miss. 2018) (citing Manning v. King's Daughters Med. Ctr. , 138 So. 3d 109, 116 (¶21) (Miss. 2014) (affirming dismissal where plaintiff filed a complaint but then took no further action for two years, did not respond to discovery requests, and waited a year before responding to defendant's motion to dismiss)).

¶13. Here, even discounting the lengthy procedural delays pre-dating her 2014 petition,² the record since Carter filed her most recent petition shows substantial periods of delay coupled with a disregard of deadlines set by both court orders and procedural rules. After Carter failed to prosecute her 2014 contempt petition for over a year, the chancery clerk filed a notice of dismissal in 2015. In response, Carter filed a perfunctory motion to set a trial date but then did not further pursue her claims for over another year. During that interval, she ignored deadlines imposed by both the discovery rules and the chancery court itself. As a result, the chancery clerk filed another notice of dismissal and motion to dismiss for want of prosecution in March 2017. A similar pattern of superficial activity by Carter ensued, until Spears filed his own motion to dismiss for failure to prosecute—the third such motion as to Carter's 2014 petition—in May 2018.

¶14. Carter took two years and five months to respond to discovery requests Spears propounded on October 9, 2015, and then only provided unverified and incomplete responses. Carter's delay occurred in the face of the first of two motions to compel filed by Spears, court orders directing Carter to provide discovery responses, and the third notice of dismissal for want of prosecution from the chancery clerk. Carter's "substantial ... delay ... clearly evince[d] the plaintiff's prolonged failure to pursue [her] claims." SW 98/99 , 242 So. 3d at 854 (¶23). Our supreme court has made clear that "repeated failures to comply with discovery warrant...