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Thames v. Smith Insurance Agency Inc.

May 14, 1998

ROBERT E. THAMES
v.
SMITH INSURANCE AGENCY, INC. ROBERT THAMES D/B/A MALTA MART
v.
SMITH INSURANCE AGENCY, INC. SEAVIEW RESORTS, INC.
v.
SMITH INSURANCE AGENCY, INC.



DATE OF JUDGMENT: 06/02/93 TRIAL JUDGE: HON. KEITH STARRETT COURT FROM WHICH APPEALED: LINCOLN COUNTY CIRCUIT COURT

The opinion of the court was delivered by: Banks, Justice

ON PETITION FOR WRIT OF CERTIORARI

NATURE OF THE CASE: CIVIL - INSURANCE

DISPOSITION AFFIRMED

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

¶1. This dispute involves the question of whether the trial court erred in failing to grant either a continuance or a new trial based on a claim of lack of notice where the written notice was mailed to an address correct in all respects except the last digit of the zip code. An equally divided court of appeals affirmed. The majority reasoned that a "slightly incorrect" address gave rise to a "weakened presumption" of delivery sufficient to sustain the finding of the trial court. The dissenters disagreed and suggested that the absence of the presumption together with the failure of the clerk to mail notice of the docket setting in strict compliance with Miss. R. Civ. P. 40 compelled reversal. We granted certiorari to resolve the issue as it involves an area of interpretation of our rules of civil procedure not previously addressed by this Court.

I.

¶2. This appeal originated in three complaints filed in the Circuit Court of Lincoln County by Smith Insurance Agency, Inc., seeking recovery on open accounts for insurance premiums against Robert E. Thames, Robert E. Thames d/b/a Malta Mart, and Seaview Resorts, Inc., a corporation controlled by Thames (collectively referred to as "Thames"). Answers by way of a general denial were filed, and ultimately judgments were rendered against Thames, without participation by them in the trial of the case, but urging that they did not have sufficient notice of the trial setting. Thereafter the defendants filed a motion for a new trial, which the Judge denied. These appeals, now consolidated, are from the order denying a new trial.

¶3. The complaints against Robert E. Thames d/b/a Malta Mart and Robert E. Thames were filed on September 13, 1991; Smith filed a similar complaint against Seaview Resorts on January 7, 1992. Both sides engaged in discovery with no apparent problems in communication. Only as the cases approached trial did Thames' attorney begin to complain of difficulty in his communications with opposing counsel and with the court.

¶4. On September 23, 1992, Smith filed a motion for pre-trial conference in all three cases. On March 18, 1993, the Clerk for the Circuit Court of Lincoln County sent notice of the setting of the trial docket to Thames' counsel, Byrd & Wiser; however, the zip code in the address of the notice was incorrect in that it was stated as "39538" rather than "39533," the correct code. "39538" is a non-existent zip code.

¶5. Kenneth Johnston, an associate for Byrd & Wiser responsible for the Thames cases, maintains that he did not receive the notice. He acknowledges that he had tentatively agreed to a pre-trial conference on April 12, 1993. He asserts that on April 9, while out of the office, he instructed his secretary to call opposing counsel and try to reschedule the conference, due to his upcoming wedding in Dallas on April 17, 1993. Opposing counsel denied receiving the call. Without confirmation of any contact by the secretary, Johnston, rather than attend the pre-trial conference, elected to call opposing counsel on April 12, 1993.

ΒΆ6. He learned that counsel opposite was at that moment in McComb attending the conference with Judge Starrett. Johnston then phoned judge Starrett and requested rescheduling. This request was denied, but Johnston was allowed to participate telephonically. He argued that the case was not ripe for trial due to incomplete discovery. The Judge rejected his argument and directed him to fax a pretrial order. Judge Starrett also ...


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