OF JUDGMENT: 05/30/2017
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
CARLTON, P.J., McDONALD AND C. WILSON, JJ.
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. 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.
AND PROCEDURAL HISTORY
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.
West was unable to serve Davis prior to his
death. 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.
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
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."
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.
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.
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.
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.
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.
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 ...