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West v. State Farm Mutual Automobile Insurance Co.

Court of Appeals of Mississippi

October 8, 2019

JANITA WEST APPELLANT
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY AND HARRY BRYANT D/B/A HARRY BRYANT RODEO APPELLEES

          DATE OF JUDGMENT: 05/30/2017

          GEORGE COUNTY CIRCUIT COURT HON. KATHY KING JACKSON JUDGE

          ATTORNEY FOR APPELLANT: A. MALCOLM N. MURPHY

          ATTORNEYS FOR APPELLEES: H. BENJAMIN MULLEN MICHAEL F. MYERS MICHAEL RILEY MOORE

          BEFORE CARLTON, P.J., McDONALD AND C. WILSON, JJ.

          McDONALD, J.

         ¶1. Janita West (West) filed a complaint on December 15, 2000, against Johnnie K. Davis (Davis) and Harry Bryant d/b/a Harry Bryant Rodeo (Bryant). The complaint alleged injuries and damages as a result of an automobile accident that occurred on December 17, 1997. On December 16, 2000, West also filed suit against State Farm Mutual Automobile Insurance Company (State Farm) for uninsured/underinsured motorist benefits as well as breach of the duty of good faith and fair dealing owed to West.[1] The cases were consolidated on January 17, 2006. Thereafter, West filed an amended complaint on February 15, 2008, also alleging negligent entrustment against Bryant. On July 21, 2011, Bryant filed his first motion to dismiss for want of prosecution pursuant to Rule 41(b) of the Mississippi Rules of Civil Procedure, which the court denied on May 10, 2012. The only activity between May 2012 and May 2014 was a motion in limine and motion to reconsider the denial of the motion in limine, which we will discuss below. There was no activity on the case for two and a half years. On November 30, 2016, Bryant filed a second motion to dismiss for lack of prosecution pursuant to Rule 41(b), which State Farm later joined. The court granted the motion to dismiss. West filed a motion to reconsider, which the court denied. From the dismissal of the lawsuit for lack of prosecution, West appeals to this Court. Finding no error, we affirm the trial court's decision.

         FACTS AND PROCEDURAL HISTORY

         ¶2. This case has had a twenty-two-year shelf life thus far. West was involved in an accident on December 17, 1997. On December 15, 2000, West filed her original complaint against Davis and Bryant in George County Circuit Court and alleged personal injury damages arising from the December 17, 1997 automobile accident. Davis was driving a vehicle owned by Bryant. West also alleged that because Davis was the agent, servant, and employee of Bryant at the time of the accident, Bryant was financially responsible for her damages.

         ¶3. West was unable to serve Davis prior to his death.[2] After obtaining several extensions of time, West finally served Bryant on July 31, 2001. On October 31, 2002, Bryant answered and propounded written discovery to West. When West failed to timely respond, Bryant filed a motion to compel, and a hearing was set for May 7, 2004. The hearing did not occur because on May 6, 2004, the parties entered into an agreed order setting deadlines for the completion of discovery. But West failed to respond to the written discovery by the date in the agreed order, so the hearing on the motion to compel was reset for February 1, 2005. Again, the hearing did not occur because West responded with answers to the written discovery on January 31, 2005, a day prior to the scheduled hearing.

         ¶4. West had also filed a separate lawsuit against State Farm for uninsured/underinsured motorist benefits and for the breach of the duty of good faith and fair dealing on December 16, 2000. Per West's request, the cases were consolidated, and West filed an amended complaint on February 15, 2008. In addition to the allegations in the original complaint, the amended complaint alleged that Bryant was guilty of negligent entrustment of his vehicle to Davis. Bryant filed his answer on March 8, 2008, denying the allegations of the amended complaint.

         ¶5. Several years passed with no action by any party. On July 21, 2011, Bryant filed his first motion to dismiss for want of prosecution pursuant to Rule 41(b) of the Mississippi Rules of Civil Procedure, and West responded. On May 10, 2012, the court denied the motion and stated that "the case is ready for trial at this time so there should be no further delay in bringing this matter to a conclusion."

         ¶6. On April 23, 2013, West filed a motion to strike and a motion in limine in the same document. West alleged that Bryant had failed to correctly plead the affirmative defense of Davis's unauthorized use of the vehicle Bryant owned. West argued that because the affirmative defense was not timely presented to the court, it was waived and should be stricken. West also filed a motion in limine to exclude evidence of Bryant's affirmative defenses at trial. On November 22, 2013, the court denied West's motion to strike. West filed a motion to reconsider the court's ruling on December 3, 2013. Both motions were denied.

         ¶7. There was no activity on the case for the next two and a half years. On November 30, 2016, Bryant filed a second motion to dismiss for lack of prosecution pursuant to Rule 41(b). A hearing was scheduled for March 30, 2017.

         ¶8. On February 13, 2017, West filed a motion for trial, notice of service of discovery and retention of originals, and noticed the motion for March 30, 2017.

         ¶9. On March 16, 2017, State Farm filed a motion to dismiss for want of prosecution pursuant to Rule 41(b) and, in the alternative, a motion for summary judgment or partial summary judgment. State Farm also joined Bryant's November 30, 2016 motion to dismiss.

         ¶10. A hearing on the motion to dismiss was held on March 30, 2017. On May 22, 2017, the circuit court entered an order granting Bryant and State Farm's motion to dismiss for want of prosecution. On May 30, 2017, West filed a motion to reconsider the order granting Bryant and State Farm's motion to dismiss. On the same day, the final judgment of dismissal was entered.

         ¶11. On June 8, 2017, West filed a second motion to reconsider the order and the final judgment and argued that the court should consider lesser sanctions than dismissal. After a hearing on October 31, 2017, the circuit court denied West's motion to reconsider the dismissal on March 29, 2018. In its ...


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