MISS. DHS v. Guidry, No. 2001-CA-01538-SCT.

• Decision Date: 31 October 2002
• Docket Number: No. 2001-CA-01538-SCT.
• Citation: 830 So.2d 628
• Parties: MISSISSIPPI DEPARTMENT OF HUMAN SERVICES v. Jackie J. GUIDRY, Sr.
• Court: Mississippi Supreme Court

830 So.2d 628

MISSISSIPPI DEPARTMENT OF HUMAN SERVICES v. Jackie J. GUIDRY, Sr.

No. 2001-CA-01538-SCT.

Supreme Court of Mississippi.

October 31, 2002.

Geraldine Jordan-Chayer, attorney for appellant.

Robert E. Taylor, Jr., Wiggins, attorney for appellee.

Before McRAE, P.J., EASLEY and CARLSON, JJ.

CARLSON, J., for the Court.

¶ 1. The Mississippi Department of Human Services brings this appeal after the chancellor dismissed its petition for contempt with prejudice based on a failure to prosecute. Finding that the chancellor erred in dismissing the petition with prejudice, we reverse his judgment to the extent that he dismissed Victory's amended petition and remand the case for further proceedings. Because the statute of limitations bars any action filed after February 1, 1998, seeking to recover child support obligations owed by Jackie, the chancellor's judgment dismissing the petition filed by DHS is affirmed.

STATEMENT OF THE CASE

¶ 2. The Mississippi Department of Human Services ("DHS") filed a petition for contempt against Jackie J. Guidry, Sr. on November 22, 1999. The petition alleged Jackie's ex-wife, Victory Guidry, had received services of DHS under Title IV-D of the Social Security Act and DHS was authorized to bring this action against Jackie. DHS pled in its complaint that on June 7, 1977, a judgment was rendered against Jackie ordering him to pay "support." DHS also pled that as of February 22, 1999, Jackie was in arrears $22,573.00 and DHS was entitled to a judgment against Jackie for that amount and any amount which had accrued since the action was filed. DHS also stated that Jackie should be held in contempt because he had failed to comply with the judgment. Additionally, DHS sought direction for Jackie to provide health insurance for the children, attorney's fees to DHS, and payment of all court costs. Jackie was served with process on January 13, 2000.

¶ 3. On February 29, 2000, Jackie filed his answer, asserting no defenses but denying all allegations of the complaint. At a hearing held on December 22, 2000, Jackie made an ore tenus motion to dismiss asserting that the action was barred by the statute of limitations. On May 16, 2001, the chancellor dismissed DHS's petition with prejudice for failure to prosecute. After DHS filed a motion for reconsideration, the chancellor denied the motion and entered the order of dismissal on September 6, 2001. On September 20, 2001, DHS timely filed its notice of appeal. DHS raises two issues which this Court will review:

I. WHETHER THE CHANCELLOR ABUSED HIS DISCRETION BY DISMISSING THE AMENDED PETITION FILED ON MARCH 10, 1989.

II. WHETHER THE CHANCELLOR ERRED BY FINDING JACKIE DID NOT WAIVE THE AFFIRMATIVE DEFENSE OF STATUTE OF LIMITATIONS WHEN JACKIE FAILED TO RAISE IT IN HIS ANSWER TO THE PETITION DATED NOVEMBER 22, 1999.

FACTS

¶ 4. On June 7, 1977, a final decree was entered ordering Jackie to pay child support in the amount of $250.00 per month to his four children, John Paul Guidry, born February 1, 1970, Jackie Joseph Guidry, Jr., born February 8, 1969, William Clinton Guidry, born October 30, 1963, and Roxanne Marie Guidry, born November 28, 1962. Child support was to be paid in the amount of $125.00 on the first and fifteenth day of each month. A petition for contempt was originally filed by Victory Guidry on January 9, 1989. The petition stated Victory was entitled to a judgment against Jackie for the amount of the arrearage and any child support which accrued since the petition was filed. On March 10, 1989, Victory amended the petition to show that as of December 31, 1988, Jackie was in arrears $16,333.00.

¶ 5. On April 10, 1989, Jackie filed an answer alleging that Victory was barred from seeking any relief because all of the children were emancipated. Jackie also claimed Victory was barred by the doctrine of laches because Victory had failed to bring any legal proceedings against him in the past to enforce his support obligation. This case was continued eighteen times until April 24, 1992, and then laid dormant for seven years and seven months, until DHS commenced its action.

¶ 6. On November 22, 1999, DHS filed its first petition for contempt, asserting that because Victory was a recipient of services under Title IV-D of the Social Security Act, DHS was authorized to bring this action. On January 28, 2000, Jackie filed a motion for continuance and time, and a hearing was scheduled for March 24, 2000. Jackie filed his answer on February 29, 2000, which denied all allegations of the complaint but did not assert any affirmative defenses. ¶ 7. In response to Jackie's ore tenus motion requesting all necessary parties be joined as the children were all emancipated, all four children signed waivers stating that any arrearage due was owed to their mother, Victory. The hearing was scheduled for September 22, 2000, but was rescheduled for December 22, 2000, after Jackie filed a motion for continuance. At the hearing Jackie made an ore tenus motion to dismiss, asserting that the action was barred by the statute of limitations. On May 16, 2001, the chancellor filed a memorandum opinion and order dismissing the petition stating that the original petitions filed in 1989 had been abandoned and were dismissed due to failure to prosecute and that the statute of limitations barred any debt owed by Jackie on February 1, 1998.¹ On May 25, 2001, DHS filed a motion for reconsideration which was denied, and the order of dismissal was entered on September 6, 2001.

DISCUSSION

I. WHETHER THE CHANCELLOR ABUSED HIS DISCRETION BY DISMISSING THE AMENDED PETITION FILED ON MARCH 10, 1989.

¶ 8. DHS argues a chancellor does not have the authority to unilaterally dismiss a petition for lack of prosecution. DHS further states there was no motion pending, no notice was given and the issue was not heard with its consent. DHS also alleges it was an abuse of discretion for the chancellor to dismiss for lack of prosecution based on the facts of the case. Jackie contends the chancellor was well within his power to order a dismissal based on lack of prosecution.

¶ 9. "[T]he power to dismiss an action for want of prosecution is part of a trial court's inherent authority." Am. Tel. & Tel. Co. v. Days Inn of Winona, 720 So.2d 178, 180 (Miss.1998) (quoting Wallace v. Jones, 572 So.2d 371, 375 (Miss. 1990)). This power is "a means necessary to the orderly expedition of justice and the court's control of its own docket." Id. (quoting Watson v. Lillard, 493 So.2d 1277, 1278 (Miss.1986)) (citing Link v. Wabash R.R., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962)).

¶ 10. The power to dismiss for failure to prosecute can be exercised sua sponte where a motion by a party is lacking. Watson, 493 So.2d at 1278 (citing Link v. Wabash R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734). In pertinent part, Miss. R. Civ. P. 41 provides:

(b) Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him.... Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any other dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.

The United States Supreme Court has interpreted Fed.R.Civ.P. 41(b) to allow involuntary dismissals by federal courts where there was no motion by the defendant. Link, 370 U.S. at 630, 82 S.Ct. 1386. The Supreme Court held:

We do not read Rule 41(b) as implying any such restriction. Neither the permissive language of the Rule—which merely authorizes a motion by the defendant—nor its policy requires us to conclude that it was the purpose of the Rule to abrogate the power of courts, acting on their own initiative, to clear their calendars of cases that have remained dormant because of the inaction or dilatoriness of the parties seeking relief. The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an "inherent power," governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.

Id. at 630-31, 82 S.Ct. 1386. The federal rule is similar to our state rule.

¶ 11. The Supreme Court also discussed the fundamental due process requirements of being heard and of notice being given of such a dismissal. Link, 370 U.S. at 632, 82 S.Ct. 1386. The Court stated that every order entered without notice given did not violate due process. Id. "The adequacy of notice and hearing respecting proceedings that may affect a party's rights turns, to a considerable extent, on the knowledge which the circumstances show such party may be taken to have of the consequences of his own conduct." Id. The Court also found "when circumstances make such action appropriate, a District Court may dismiss a complaint for failure to prosecute even without affording notice of its intention to do so or providing an adversary hearing before acting." Id. at 633, 82 S.Ct. 1386.

¶ 12. On the sole issue of whether a trial court may unilaterally dismiss a petition for lack of prosecution, this Court holds that although Jackie had not filed a motion to dismiss, the trial court was within its discretion to raise sua sponte the issue of dismissing the petition for lack of prosecution. This case, which was originally set for trial on September 28, 1989, was continued eighteen times until April 24, 1992. After 1992, no action was taken until DHS filed its petition in 1999, seven years and seven months later. This matter had been on the docket for over ten years before DHS filed its petition. While a trial court would ordinarily be acting within its discretion when dismissing a petition for lack of prosecution,...