TONY L. SMITH AND LINDA N. SMITH APPELLANTS
COLDWELL BANKER GRAHAM & ASSOCIATES, INC., CINDY LAI, MARK S. BOUNDS REALTY PARTNERS, INC., DONALD CONN, JR. AND WAYNE C. WILLIAMS APPELLEES
OF JUDGMENT: 06/28/2016
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.
GRIFFIS, P.J., BARNES AND GREENLEE, JJ.
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.
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. 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.
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.
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.
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.
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. 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.
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."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
On appeal, we find no abuse of discretion in the circuit