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Gaillard v. Rea Brothers' Auctions, Inc.

Court of Appeals of Mississippi

June 20, 2017

RUSSELL GAILLARD APPELLANT
v.
REA BROTHERS' AUCTIONS, INC. APPELLEE

          DATE OF JUDGMENT: 08/13/2015

         RANKIN COUNTY CIRCUIT COURT, HON. JOHN HUEY EMFINGER TRIAL JUDGE.

          ATTORNEYS FOR APPELLANT: MARC E. BRAND JAMES W. NOBLES JR. JOHN DAVID SANFORD BRETT RAY KOEHN.

          ATTORNEYS FOR APPELLEE: JOE S. DEATON III MICHAEL CHAD MOORE.

         EN BANC.

          CARLTON, J.

         ¶1. Pursuant to Rule 41(b) of the Mississippi Rules of Civil Procedure, the Rankin County Circuit Court dismissed with prejudice Russell Gaillard's complaint against Rea Brothers' Auctions Inc. ("Rea Brothers") due to Gaillard's failure to prosecute. Gaillard appeals the dismissal and argues the circuit court abused its discretion for the following reasons: (1) the record fails to reflect a clear delay attributable to him; (2) even if he contributed to a delay, the circuit court should have applied a lesser sanction; and (3) the record fails to reflect any aggravating factors.

         ¶2. Finding no abuse of discretion, we affirm the circuit court's dismissal with prejudice of Gaillard's complaint for failure to prosecute.[1]

         FACTS

         ¶3. On March 16, 2009, Gaillard filed a complaint for damages against Rea Brothers in the County Court of Rankin County. Gaillard alleged that, while attending an auction on Rea Brothers' premises on September 26, 2006, a vehicle driven by a Rea Brothers' employee struck and injured him. The trial docket indicates that, for the remainder of 2009, Rea Brothers alone filed documents relevant to Gaillard's cause of action. In April 2009, Rea Brothers filed its answer and affirmative defenses to Gaillard's complaint and propounded discovery requests to Gaillard. Then, on November 19, 2009, Rea Brothers filed a motion to compel Gaillard's discovery responses. Attached to its motion to compel, Rea Brothers included a copy of correspondence between the parties' attorneys, which indicated that Gaillard had so far failed to respond to Rea Brothers' April 2009 discovery requests. On December 4, 2009, the county court entered an agreed order granting Rea Brothers' motion to compel Gaillard's discovery responses.

         ¶4. In January 2010, Gaillard responded to Rea Brothers' discovery requests. He then propounded his own discovery requests in February 2010 and noticed the deposition of Kenny Rea in July 2010. Almost a year later, on August 16, 2011, Gaillard filed a motion to amend his complaint and to transfer the case to circuit court. The county court granted Gaillard's motion on December 16, 2011.

         ¶5. On January 6, 2012, the circuit court entered an agreed scheduling order. On February 1, 2012, Gaillard designated his experts. He then filed a notice of deposition for his treating physician, Dr. Stanton Ward, on June 5, 2012. On July 19, 2012, Gaillard filed a response to Rea Brothers' motion to compel him to submit to an independent medical exam.

¶6. Pursuant to a January 2013 order by the circuit court, the parties unsuccessfully participated in a mediation conference on April 4, 2013. Rea Brothers filed a supplemental designation of an expert witness on May 1, 2013. Rea Brothers then filed a motion to strike and/or exclude the testimony of Gaillard's expert, Dr. Ward, on August 2, 2013. On November 22, 2013, Gaillard filed a response to the motion to strike and/or exclude Dr. Ward's opinions.

         ¶7. Over a year later, on January 16, 2015, Rea Brothers filed its motion to dismiss Gaillard's complaint pursuant to Rule 41(b) for failure to prosecute. On the same day, Gaillard filed a motion to set the case for trial. Following two hearings in August 2015, the circuit court entered orders disposing of the parties' motions. By its August 11, 2015 order, the circuit court denied Rea Brothers' motion to strike and/or exclude Dr. Ward's testimony. However, by a subsequent order entered August 13, 2015, the circuit court granted Rea Brothers' motion to dismiss Gaillard's complaint for failure to prosecute. Following the circuit ...


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