Before Prather, C.j., Banks And Smith, JJ.
The opinion of the court was delivered by: Banks, Justice
American Telephone and Telegraph Company v. Days Inn of Winona, et al, 97-CA-00411-SCT, __ So. 2d __
DATE OF JUDGMENT: 10/18/96
TRIAL JUDGE: HON. JOSEPH H. LOPER, JR.
COURT FROM WHICH APPEALED: MONTGOMERY COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - PROPERTY DAMAGE
DISPOSITION REVERSED AND REMANDED - 8/13/98
MOTION FOR REHEARING FILED:
¶1. This case is before the Court on appeal from the dismissal of the plaintiff's case with prejudice for failure to prosecute, pursuant to Miss. R. Civ. P. 41(b). We conclude that while the conduct of plaintiff's counsel was less than diligent, it does not represent the contemptuous resistance to the court's authority required under the rules. Moreover, there is no indication that the lower court attempted to expedite the proceedings through the use of lesser sanctions before invoking the harsh measure of dismissing the plaintiff's case with prejudice. Accordingly, we reverse and remand for trial.
¶2. On August 5, 1994, American Telephone and Telegraph Company (AT&T) filed a complaint in the Circuit Court of Montgomery County against Days Inn of Winona, Tac Gopal and Leroy Allen. AT&T sought $336,278.40 in damages caused by the defendants' alleged negligence in cutting an underground telephone cable. Answers were thereafter filed and discovery proceeded. On March 6, 1995, the circuit court notified counsel for all parties that the trial docket for the April term of court would be called on March 21, 1995. On March 17, 1995, defendants Days Inn and Tac Gopal filed a Motion to Extend Discovery until June 14, 1995. This motion was granted on May 1, 1995, although neither side engaged in any discovery after January of 1995.
¶3. In a letter to the clerk of the court dated March 15, 1996, counsel for defendants Days Inn and Tac Gopal informed the court that she would be unable to attend the trial docket for the April term of 1996, and requested that the court move the case to the October 1996 term. On September 11, 1996, the court notified counsel for all parties that the trial docket for the October term of court would be called on September 23, 1996. Counsel for plaintiff did not appear at the docket setting, although counsel for defendants was present.
¶4. On the same day, September 23, 1996, defendants Days Inn and Tac Gopal filed a Motion to Dismiss Stale Case for Failure to Prosecute. The defendants argued that the last action in the case was the order extending discovery filed by the court on May 1, 1995. Accordingly, the defendants requested that the court, pursuant to Miss. R. Civ. P. 41(b) and Miss. Code Ann. § 11-53-25 (1972), involuntarily dismiss the action with prejudice due to AT&T's failure to prosecute its claim. Counsel for defendants noticed the motion to be ...