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Smith v. Coldwell Banker Graham & Associates, Inc.

Court of Appeals of Mississippi

September 11, 2018

TONY L. SMITH AND LINDA N. SMITH APPELLANTS
v.
COLDWELL BANKER GRAHAM & ASSOCIATES, INC., CINDY LAI, MARK S. BOUNDS REALTY PARTNERS, INC., DONALD CONN, JR. AND WAYNE C. WILLIAMS APPELLEES

          DATE OF JUDGMENT: 06/28/2016

          HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, HON. WINSTON L. KIDD JUDGE.

          ATTORNEY FOR APPELLANTS: DONALD W. BOYKIN.

          ATTORNEYS FOR APPELLEES: LEE ANN C. THIGPEN JOE S. DEATON III TROY FARRELL ODOM RICHARD JASON CANTERBURY JIM WARREN III CLIFTON MICHAEL DECKER MICHAEL CHAD MOORE.

          BEFORE GRIFFIS, P.J., BARNES AND GREENLEE, JJ.

          BARNES, J.

         ¶1. On November 9, 2003, Tony and Linda Smith entered into a real estate contract (Contract) with John Hendon for the purchase of a home in Rankin County, Mississippi. The Smiths were represented by Cindy Smith and Century 21 Maselle & Associates (Century 21). Coldwell Banker Graham & Associates Inc. (Coldwell Banker) and Cindy Lai represented the seller, Hendon.

         ¶2. On January 14, 2005, the Smiths filed a First Amended Complaint in Hinds County Circuit Court, First Judicial District, against Hendon, Union Planters Bank NA (Union Planters), First American Real Estate Solutions of Texas L.P., Successor in Interest to First American Flood Data Services Inc. (First American), Century 21, Cindy Smith, Coldwell Banker, Lai, Mark S. Bounds Realty Partners Inc. (Bounds), Donald Conn Jr., and Wayne C. Williams.[1] As the home had flooded a few months after its purchase, the complaint alleged negligence and/or fraudulent inducement on the part of the named defendants surrounding the issue of whether the property was located within a flood zone.

         ¶3. Conn, who conducted the property's appraisal, filed interrogatories and a request for production of documents on February 23, 2005. More than three years later, after the Smiths failed to respond, Conn filed a motion to compel discovery on September 12, 2008. The Smiths assured Conn they would immediately produce the discovery responses; so he took the hearing off the court's docket. But the Smiths again failed to respond to the discovery requests, and Conn filed a second motion to compel discovery on March 3, 2009.

         ¶4. In the meantime, Bounds and Williams, who were also involved with the property's appraisal, filed a motion to compel the depositions of the Smiths on February 25, 2009. The motion asserted that although depositions had been scheduled and noticed on prior occasions, the Smiths "unilaterally cancelled these depositions in order to conduct further discovery on the defendants" and had not "responded to movant Defendants' various recent requests to proposed dates for [their] depositions." Bounds and Williams followed with a motion to compel discovery responses on June 11. On June 30, 2009, the trial court granted the motions of Conn, Bounds, and Williams. The Smiths reached an agreement with the defendants to produce the documents, however, and no formal hearing was held. Depositions of the Smiths were taken on August 17-18, 2009, with counsel for Coldwell Banker, Lai, Conn, Bounds, Williams, and Hendon present.

         ¶5. After Coldwell Banker and Lai filed a motion for summary judgment on September 14, 2010, the Smiths filed a motion to set trial on September 17 and a response to the summary-judgment motion on October 21. Conn filed a summary-judgment motion on January 11, 2011; Bounds and Williams followed with a motion for summary judgment on February 8, 2011. On July 26, 2012, the circuit court denied all three summary-judgment motions.

         ¶6. Eighteen months later, after no further action had been taken by the Smiths, Coldwell Banker, Lai, Bounds, Williams, and Conn all filed motions to dismiss for lack of prosecution in January 2014.[2] The Smiths immediately responded with a motion to set trial on January 29, contending that any delay in setting a trial date "is no fault of the Plaintiffs" but, rather, due to their counsel's ongoing health issues. Coldwell Banker, Lai, Bounds, and Williams filed a notice of hearing a week later. However, the Smiths took no further action to set a trial; so on November 16, 2015, Coldwell Banker and Lai filed a motion to dismiss for lack of prosecution, with Bounds and Williams filing a joinder to the motion on December 11. The motion noted that it had been almost eleven years since the Smiths had filed their initial complaint and that the Smiths "have gone years at a time without taking any action in the case." The Smiths filed a response in opposition to the motion to dismiss on February 18, 2016.

         ¶7. On June 28, 2016, the circuit court granted the Appellees' motions to dismiss, noting there had been "no substantial activity in this matter for a period well exceeding 12 months."[3]Finding no just cause for the delay, the court entered a Mississippi Rule of Civil Procedure 54(b) final judgment of dismissal "with prejudice as to all claims" except for those parties previously ordered to arbitration (Century 21 and Cindy Smith). On July 27, 2016, the Smiths filed a notice of appeal of the court's dismissal of the action, as well as a motion for clarification of the judgment of dismissal and to set trial.[4]

         ¶8. On appeal, we find no abuse of discretion in the circuit court's ...


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