Cascio v. Alfa Mut. Ins. Co.
Decision Date | 06 December 2013 |
Docket Number | No. 2012–CA–01300–COA.,2012–CA–01300–COA. |
Citation | 164 So.3d 452 |
Parties | Glenda CASCIO, Appellant v. ALFA MUTUAL INSURANCE COMPANY, as Subrogee of Belinda Patterson, and Belinda Patterson, Individually, Appellees. |
Court | Mississippi Court of Appeals |
Richard Anthony Filce, attorney for appellant.
J. Paul Clinton, attorney for appellees.
EN BANC.
GRIFFIS, P.J., for the Court:
¶ 1. Close to the completion of the second lap of the race to justice, this case considers the appeal of the appeal of the county court order that granted a dismissal for want of prosecution under Mississippi Rule of Civil Procedure 41(d)(1) and denied the plaintiffs' motion for summary judgment. We find no error and affirm.
FACTS AND PROCEDURAL HISTORY
¶ 2. On December 24, 1999, Belinda Patterson and Glenda Cascio were involved in an automobile accident. Cascio rear-ended Patterson and damaged her vehicle. Patterson was reimbursed for the cost of repair by her insurance carrier, Alfa Mutual Insurance Company.
¶ 3. On February 6, 2002, Alfa and Patterson (the “plaintiffs”) filed a complaint against Cascio in the County Court of Forrest County, Mississippi. The complaint asserted a claim for negligence and sought to recover $16,062.92 in damages. The claim was tried in the county court on April 11, 2003. At the close of the plaintiffs' case-in-chief, the court granted Cascio's motion for a directed verdict. The county court ruled that the plaintiffs failed to establish liability, and entered a judgment in favor of Cascio.
¶ 4. On appeal, the circuit court affirmed the county court's decision. On appeal to this Court, we reversed and remanded the case in part. Alfa Mut. Ins. Co. v. Cascio, 909 So.2d 174, 183 (¶ 41) (Miss.Ct.App.2005). We held that the county court erred in when it directed a verdict in favor of Cascio. Id. at 181 (¶ 27). We reversed the county court's judgment and remanded the case to the circuit court with instructions to remand it to the county court “for further proceedings consistent with this opinion.” Id. Our opinion also specifically held:
[W]e are not convinced that a directed verdict was proper in favor of Alfa. As we noted above, we do find that Alfa established a prima facie case of liability, such that Cascio was not entitled to a directed verdict against Alfa; yet, we believe that Cascio should have the chance to rebut the evidence presented by Alfa.
Id. at 183 (¶ 39) (emphasis added). This Court's mandate issued on September 13, 2005, and the case was remanded to the Circuit Court of Forrest County.
¶ 5. After remand, no action was taken in this case for almost three years. On February 13, 2008, the circuit clerk issued the clerk's motion to dismiss for want of prosecution under Rule 41(d). On March 11, 2008, the plaintiffs filed a motion for summary judgment that stated:
This cause was previously tried in the Forrest County Court .... The [p]laintiff[s] appealed and the Appellate Court reversed the trial court and found that the [p]laintiff[s] met their burden of proof .... There is no genuine issue as to any material fact and the [p]laintiff[s][are] entitled to judgment as a matter of law.
On April 10, 2008, Cascio filed a memorandum in opposition to the motion for summary judgment. On April 18, 2008, the circuit court held a hearing and entered an order that remanded the case to county court.
¶ 6. On July 17, 2008, in the county court, Cascio filed a motion to dismiss and a response to the motion for summary judgment. On October 1, 2008, the plaintiffs filed a motion for summary judgment.
¶ 7. On October 30, 2008, the county court entered an order of dismissal. The order also indicated that the motion for summary judgment was denied. The court noted that: (1) the “[p]laintiffs have taken no action of record to move this matter forward until the Clerk's Motion to Dismiss was filed”; (2) “in an effort to counter the Clerk's motion ... [p]laintiffs filed a motion for summary judgment”; and (3) the “[p]laintiffs' motion was not accompanied by any other information as to good cause why the case should be continued as a pending case if the Motion for Summary [J]udgment was not granted.” The court concluded that the “[p]laintiffs misunderstand the Court of Appeals' decision,” and the court's interpretation was that the Court of Appeals' decision would not allow the county court to grant the motion for summary judgment. The county court then concluded:
Pursuant to [Rule] 41(d)(1), when the clerk of the court files a Motion to Dismiss for Want of Prosecution, the case will be dismissed unless action of record is taken or ... an application in writing is made to the court that there is good cause why it should be continued as a pending case.
¶ 8. The plaintiffs timely filed a notice of appeal. The record was completed and filed on March 19, 2009. On June 4, 2009, the plaintiffs/appellants filed their brief. They argued that the county court erred in the dismissal of the case pursuant to Rule 41(d)(1) and in the denial of the plaintiffs' motion for summary judgment.
¶ 9. On June 5, 2009, Cascio filed a motion to dismiss the appeal and for sanctions. The motion argued that the appellants' brief was filed late. The appellants filed their response on June 15, 2009. Cascio's appellee's brief was filed on July 7, 2009. The reply brief was filed on August 10, 2009. On August 11, 2009, Cascio filed a motion to strike the appellants' reply brief on the grounds it was filed late. On July 22, 2010, the circuit judge entered an order that denied Cascio's motion to dismiss the appeal and her request for sanctions.
¶ 10. On July 13, 2012, the circuit judge entered his opinion and order. The circuit judge held that the county judge erred in the dismissal of the case based on Rule 41(d). The circuit judge determined that the motion for summary judgment was a sufficient “action of record” to avoid dismissal under Rule 41(d) and that the circuit judge's prior order of remand “was, in effect, a denial of the clerk's motion.” The circuit judge then considered the denial of the motion for summary judgment and concluded:
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