COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 07/11/2012. TRIAL JUDGE: HON. ROBERT B. HELFRICH. TRIAL COURT DISPOSITION: GRANTED SUMMARY JUDGMENT IN FAVOR OF APPELLEES.
FOR APPELLANT: RICHARD ANTHONY FILCE.
FOR APPELLEES: J. PAUL CLINTON.
GRIFFIS, P.J. BARNES, ISHEE, MAXWELL AND FAIR, JJ., CONCUR. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., AND ROBERTS, J.; JAMES, J., JOINS IN PART. JAMES, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED IN PART BY IRVING, P.J., AND ROBERTS, J. CARLTON, J., NOT PARTICIPATING.
NATURE OF THE CASE: CIVIL - CONTRACT
[¶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, Casio 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:
Regarding the county court's denial of Alfa's motion for summary judgment, the supreme court has said under circumstances in which a county court denied a motion for summary judgment but granted a motion to dismiss that the county court's order " constituted final judgment on those two motions." Sanford v. Jackson Mall Shopping Center Co., 516 So.2d 227, 227 (Miss. 1987). While the Sanford court did reverse the circuit court's grant of summary judgment, it was because there were issues of material fact that rendered the judgment erroneous rather than as a consequence of the circuit court's lack of authority. Id. at 228-29 (affirming circuit court's reversal of dismissal). The supreme court has also observed that " [t]he circuit court has the authority, if a new trial is not necessary, to enter the judgment that it thinks the county court should have rendered." Mullen v. Green Tree Financial Corp., 730 So.2d 9[,12] (¶ 12) (Miss. 1998) (internal quotations and citation omitted).
That this case has been tried, appealed, remanded, dismissed and appealed again appears to bring it within the Mullen allowance, particularly when the law of the case doctrine is applied. According to that doctrine[:]
Whatever is once established as the controlling legal rule of decision, between the same parties in the same case, continues to be the law of the case, so long as there is a similarity of facts. This principle expresses the practice of courts generally to refuse to reopen what has previously been decided. It is founded on public policy and the interests of orderly and consistent judicial procedure.
Public Employees' Retirement System v. Freeman, 868 So.2d 327[,330] (¶ 10) (Miss. 2004) . . . .
On the first appeal of this case, although the court of appeals ordered remand on its belief that Cascio " should have the chance to rebut the [uncontradicted and un-rebutted] evidence" presented by Alfa, it also found that " Alfa established a prima facie case of liability." [ Cascio, 909 So.2d at 183 (¶ ¶ 38-39)]. Following remand to county court, Alfa filed its
motion for summary judgment. In response to that motion, Defendant Cascio argued not only that the clerk's pre-remand motion to dismiss for lack of prosecution should be granted and Alfa's motion " denied as moot" but also that the court of appeals' reversal of directed verdict in her favor did not entitle Alfa to judgment as a matter of law. . . . The county court agreed in part with Cascio:
Obviously, the decision of the Court of Appeals is not tantamount to stating that Plaintiffs are entitled to Judgment as a matter of law as there is no issue as to any material fact to be tried. More precisely, the Court of Appeals expressly stated that, on remand for new trial, Defendant [Cascio] should have the opportunity to put on evidence to rebut Plaintiffs' prima facie case, an opportunity that did not take place at trial because it was unnecessary once a directed verdict had been granted in favor of [D]efendant at the close of Plaintiffs' case.
. . . From this the county court concluded that " it would be inconsistent with the facts or the law to grant Summary Judgment. Accordingly, this trial court does not find that Summary Judgment standard of . . . Rule 56[(c)] has been met." . . .
However, once Alfa filed its motion, Cascio was required to do more than just argue that the motion was moot or that the motion was based on " a clearly erroneous interpretation of the Court of Appeals' decision." As the opponent to Alfa's motion, Cascio was charged with the responsibility to " rebut [it] by producing significant probative evidence showing that there are indeed genuine issues for trial." Price v. Purdue Pharma  Co [.] 920 So.2d 479[,485] (¶ 16) (Miss. 2006) . . . . Given Cascio's failure to comply with that obligation, and based on this court's review of the entire record of this case, Alfa is now entitled to judgment as a matter of law in its favor.
(Footnotes omitted). The circuit judge then concluded that " Alfa is entitled to judgment . . . from Defendant Glenda Cascio in the amount of $15,364.87; that this judgment shall bear interest at the rate of eight percent per annum from the date of entry[; ] and that the parties shall bear their own costs." The circuit judge also entered a final judgment in favor of Alfa.
[¶11] It is from this judgment that Cascio now appeals.
[¶12] Cascio has raised four issues for our review. We have changed the order of these issues.
I. Whether the circuit court abused its discretion in denying Cascio's motion to docket and dismiss plaintiffs' appeal from county court after the brief was filed thirty-eight days late without leave of court.
[¶13] In this issue, Cascio argues that the circuit court abused its discretion when it allowed the plaintiffs to file their brief thirty-eight days late without obtaining leave of court.
[¶14] The record was filed on March 18, 2009. The plaintiff's brief was filed on June 4, 2009. Cascio's motion to dismiss appeal was filed the next day, on June 5, 2009.
[¶15] When a circuit court sits as an appellate court, the " [b]riefs filed in an appeal on the record must conform to the practice of the Supreme Court, including form, time of filing and service . . . . The consequences of failure to timely file a brief will be the same as in the Supreme Court." URCCC 5.06. ...