Cucos, Inc. v. McDanielCucos, Inc. v. McDaniel
- Reporters:
- ,
- Before:
- Smith (en banc)
SMITH, Chief Justice, for the Court.
¶ 1. This premises liability case is before us on appeal by Cucos, Inc., from an order of the Jackson County Circuit Court granting the motion of Jerry McDaniel and Laura McDaniel to reinstate this case, which was previously dismissed for want of prosecution. The Court will address the two overarching questions brought forth on appeal, considering first, whether sufficient action was taken to prevent dismissal pursuant to
PROCEDURAL HISTORY AND FACTS
¶ 2. On May 18, 2000, Jerry McDaniel and his wife, Laura McDaniel, filed a complaint alleging injuries sustained during a slip and fall accident at Cucos, Inc on June 8, 1997. Cucos timely filed its answer on July 13, 2000. The last action recorded by
¶ 3. After two years void of action in the case, the clerk entered a Motion to Dismiss for Want of Prosecution on October 16, 2002, and sent notice to each of the parties. On or about November 13, 2002, the McDaniels responded to the clerk with a letter, which was at the time a common and sufficient response in that circuit court district. The letter requested the case not be dismissed and asked for notification from the clerk if additional steps were necessary. The clerk failed to place the letter in the court file and never notified the judge of the letter or replied to the letter with notification of additional necessary steps. On November 22, 2002, unaware of the McDaniels’ letter to the Clerk, the trial court entered an Order Dismissing Case for Want of Prosecution. The McDaniels sent a letter to Cucos on or about August 20, 2004, regarding settlement. The McDaniels were unaware of the dismissal, the clerk having failed to send notice of the Order and having placed the incorrect docket number on the Order, until Cucos responded on or about August 24, 2004, saying the case was dismissed.
¶ 4. On August 30, 2004, the McDaniels filed a Motion to Set Aside Dismissal asserting that the letter they sent should have been sufficient to prevent dismissal. The trial court held a hearing on December 9, 2004, and found (1) the McDaniels’ letter to the Clerk requesting the case remain active was not in the court file at the time she signed the order of dismissal; (2) the McDaniels’ letter was an acceptable method of preventing the Clerk‘s dismissal for want of prosecution; (3) a copy of the Order Dismissing Case for Want of Prosecution was not provided to the McDaniels; (4) the McDaniels provided the circuit court with specific denials and rebutted the presumption they received notice of the dismissal; and (5) the McDaniels were pursuing efforts to schedule conferences between Cucos and his treating physicians in order to facilitate settlement. Based on these findings, the court entered an Order Granting Plaintiff‘s Motion to Set Aside Dismissal on January 10, 2005, effectively reinstating the case. Cucos subsequently requested an interlocutory appeal, which we granted. See
DISCUSSION
I. WHETHER SUFFICIENT ACTION WAS TAKEN TO PREVENT DISMISSAL PURSUANT TO Miss. R. Civ. P. 41(D)
¶ 5. Any court of law or equity may exercise the power to dismiss for want of prosecution. This power, inherent to the courts, is necessary as a means to “the orderly expedition of justice” and “the court‘s control of its own docket“. Walker v. Parnell, 566 So.2d 1213, 1216 (Miss. 1990) (quoting Watson v. Lillard, 493 So.2d 1277, 1278 (Miss.1986)). It has been clear since the adoption of the Mississippi Rules of Civil Procedure that the granting of motions to dismiss is a matter within the discretion of the trial court. Roebuck v. City of Aberdeen, 671 So.2d 49, 50 (Miss. 1996) (citing Carter v. Clegg, 557 So.2d 1187, 1190 (Miss.1990)). This Court will not disturb a trial court‘s ruling on a dismissal for want of prosecution unless it finds an abuse of discretion. Watson, 493 So.2d at 1279.
¶ 6. The first issue in dispute is over the satisfaction of
¶ 7. One possibility for preventing dismissal under Rule 41(d) is that the plaintiff perform an “action of record.” In 2000, this Court in Wilson v. Freeland acknowledged that “there are no Mississippi cases construing what constitutes an `action of record.‘” That statement holds true today as there still exist no cases defining what constitutes an “action of record.” 773 So.2d 305, 309 (Miss.2000). Cucos relies on Wilson for the proposition that an action of record must “hasten the suit to judgment.” This is incorrect. The Court simply arrived at the conclusion that the Order signed in that case was sufficient as an action of record, and the Court used as its foundational reasoning citations to the holdings of various jurisdictions from which the Court noted “[m]any of these cases focus on whether the action is `hastening the suit to judgment.‘” Id.
¶ 8. For several reasons, Wilson is weak precedent when used for defining or placing limits on what constitutes an action of record. In Wilson only five justices participated, and three votes constituted the majority. Also, this Court is not bound by decisions from other jurisdictions. Griffith v. Gulf Refining Co., 215 Miss. 15, 61 So.2d 306, 307 (1952). While the Court may regard such decisions as persuasive authority if well reasoned, the Court is at complete liberty to disregard them. Id. The Court may refuse to follow such decisions which are contrary to the public policy of the state. Id.
¶ 9. Wilson is only controlling in cases where the trial court decides to use the “hasten the suit to judgment” analysis in determining whether an action satisfies Rule 41(d). The sole significance of Wilson is the finding that an “action of record” encompasses actions that “hasten the suit to judgment.” The decision does not hold, however, as Cucos argues, that an action of record only consists of actions that “hasten the suit to judgment,” but, instead, those actions that “hasten the suit to judgment” are merely one category of actions now deemed sufficient. In providing its analysis, the Court did not create a new standard that in every situation where a claimant attempts to prevent dismissal in compliance with Rule 41(d) by performing an action of record that action must “hasten the suit to judgment.” See Wilson, 773 So.2d at 309. No such requirement exists, and the Court will not acknowledge Wilson as putting forth such a requirement for the purpose of resolving the issue at hand.
¶ 10. The Court of Appeals, whose propositions of law are only binding upon this Court if adopted by this Court, has twice decided whether particular action was sufficient to be deemed an action of record, but neither decision provides a clear standard or defines the phrase. See Curry v. Walls, 871 So.2d 762 (Miss.Ct. App.2004) (holding in reliance on Wilson v. Freeland that a letter requesting a copy of the record was not an action on the record for the purposes of preventing dismissal pursuant to
¶ 11. Cucos argues that the McDaniels’ letter was insufficient to constitute an action of record under Rule 41(d) and uses the “hasten the suit to judgment” analysis from Wilson, Curry, and Guidry as the bases for this argument. However, that analysis is not mandatory for trial courts. These findings merely provide analytical options for trial courts. As dismissal for want of prosecution is within the trial court‘s discretion, the trial court judge may find that the plaintiff has performed an action of record without that action being in accord with the “hasten the suit to judgment” analysis, and likewise, a trial court judge may, within his discretion, use those cases to support a decision to dismiss a case with similar facts, such as this one. Without an explicit definition or standard, what suffices as an action of record is left to the reasonable discretion of the trial court. Additionally, Curry and Guidry do not affect the trial court‘s decision in this case since in 2002 when the actions in question occurred, neither case had been decided. So, even if deemed controlling law for the proposition Cucos states, neither case would have applied to the McDaniels’ actions in 2002 as Guidry was decided in 2003 and Curry in 2004. Therefore, despite the factual similarity to this case, since these cases neither define nor purport to place limits on what constitutes an action of record, neither Curry, Guidry, nor Wilson require a trial court to use the same “hasten the suit to judgment” analysis used in those cases.
¶ 12. Seeing that this Court is not bound by any previously promulgated definition or restraint on what constitutes an action of record, interpretation of general wording in rules or statutes, such as that in Rule 41(d), is often aided by looking to the function or the purpose of the rule. The only such purpose or function of Rule 41(d) noted by this Court to date has been as a “means necessary to the orderly expedition of justice and the court‘s control of its own docket.” Watson, 493 So.2d at 1278. When satisfaction of the rule is in dispute, these two functions can serve as guidance for the trial court. The trial court should consider whether the action taken by the plaintiff was in accordance with the orderly expedition of justice. Certainly, the court is afforded great discretion in the second function of Rule 41(d), which is to control its own docket. Thus, in a situation, such as the one before us, where the only standard this Court has set forth is that in determining the sufficiency of the plaintiff‘s action the trial court must do what is necessary for justice as well as what the trial court decides is appropriate in controlling its own docket, this Court will construe Rule 41(d) liberally.1
¶ 14. Dismissal for want of prosecution is not a punitive concept as evidenced by the requirement of dismissal without prejudice. Instead, it is a means of docket regulation. In considering which cases should be pruned from the docket pursuant to Rule 41(d), the trial court in using its discretion should employ a balancing concept.3 Clark, 785 So.2d at 787. There are typically two competing policy considerations. Id. The Court must weigh the great social interest in provision of every litigant with his day in court and the attempt to not deprive the plaintiff of that opportunity for technical carelessness or unavoidable delay against the purpose of the Rule as found by the Court in Walker to be achievement of the orderly expedition of justice and control by the trial court of its own docket. 566 So.2d at 1216. If the facts of this case were such that the trial court, in an effort to control its own docket, wanted to dismiss this case for want of prosecution and take or postpone the plaintiff‘s day in court, this Court would need to balance the two competing policy considerations. However, in this case the two policy considerations merge since the trial court‘s desired manner of controlling its own docket includes wanting
¶ 15. The Louisiana Code, more specific in language than the comparable Mississippi Rule, requires more than an action of record, namely, a step in prosecution.
¶ 16. The Florida rule governing involuntary dismissal for want of prosecution also specifies in greater detail than the Mississippi rule what actions will prevent dismissal.
¶ 17. “That this Court will not disturb a trial court‘s finding on appeal unless it is manifestly wrong is a doctrine too well known to require citation.” Watson, 493 So.2d at 1279. This often cited standard of review clearly requires deference to the fact findings of the court, and the trial court found that McDaniel acted in such a manner to satisfy Rule 41(d). A letter in response to a Rule 41(d) motion for dismissal that simply requests that a case remain on the docket is an action of record when the letter is (1) timely sent within the thirty-day period which begins upon the filing of the motion, (2) found to be a sufficient action on the record and that finding is not in contradiction to an existing statute or decision of this Court, and (3) considered as part of a hearing where the trial court determined good cause existed for allowing the case to remain on its docket. While these facts need not be found by every trial court to constitute an action of record, they are sufficient for a court which within its discretion chooses to deem them as such.
¶ 18. Pursuant to the reasoning that this Court has adopted from other jurisdictions and the liberal construction of Rule 41(d) in accordance with the objectives of
II. WHETHER THE TRIAL COURT‘S GRANT OF RELIEF FROM DISMISSAL WAS AN ABUSE OF DISCRETION
¶ 19. An appellate court evaluates the granting of a
¶ 20. Three errors by the trial court clerk warranted relief from dismissal: (1) failing to file the McDaniels’ letter sent in response to the motion to dismiss; (2) placing the incorrect docket number on the Order dismissing the case; and (3) failing to notify the McDaniels of the Order to Dismiss. There are two sections to
¶ 21. Section (a) applies specifically to “clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission.”
¶ 22. Relief from more substantial errors requires the use of Rule 60(b), Townsend v. Townsend, 859 So.2d 370, 375 (Miss.2003), and, specifically, Rule 60(b)(6) applies in this case. After the enumerated grounds of subsections 1 through 5, Rule 60(b)(6) provides that the court may relieve a party from a final judgment or order for “any other reason justifying relief from judgment,” and the motion “shall be made within a reasonable time.” M.A.S. v. Miss. Dep‘t of Human Servs., 842 So.2d 527, 530 (Miss.2003). A reasonable time is determined on a case-by-case basis, turning on the facts in each individual case. Id. Initially unaware of the dismissal due to the clerk‘s failure to comply with
¶ 23. Additionally, two of the factors considered regarding whether a party acted in a reasonable time to justify relief are whether the party opposing the motion has suffered prejudice from the delay and whether the movant can show good cause for failure to act sooner. M.A.S., 842 So.2d at 530. Upon a hearing on the McDaniels’ motion to set aside the dismissal, the trial court mentioned no finding of prejudice, and this Court has been presented with no argument regarding an improperly considered or ignored claim of prejudice. Also, the movants, according to the findings of the trial judge from the hearing and in the opinion of this Court, showed good cause in that they did not receive notice of the Order to dismiss and were unable to reasonably find the dismissal themselves because it was labeled with the incorrect docket number. Therefore, this Court finds that the McDaniels moved for relief within a reasonable time pursuant to Rule 60(b).
¶ 24. Further, Cucos argues that the facts of this case are insufficient to constitute the exceptional or extreme circumstances required to gain relief under Rule 60(b)(6). Correctly, Cucos states that Rule 60(b)(6) is for use only in extraordinary and compelling circumstances. M.A.S., 842 So.2d at 530. However, this Court recently decided in a similar case that the trial court acted well within its discretion when it granted a motion to vacate and subsequently allowed post trial motions to be considered on the merits that were filed fifteen days after the final judgment as opposed to the ten day requirement in the rules.5 Hartford Underwriters Ins. Co. v. Williams, 936 So.2d 888, 894-95 (Miss.2006). The Court upheld the granting of the motion to vacate under Rule 60(b)(6), finding exceptional circumstances where the clerk failed to give notice of the judgment as required “immediately upon the entry” by
¶ 25. The case sub judice is significantly akin to Hartford in at least three ways. The clerk similarly failed to comply with Rule 77(d) in not notifying the McDaniels of the judgment and inhibiting his ability to respond to the dismissal more quickly. Also, incorrect information was provided by the clerk regarding the status of the case since the judgment was labeled with the incorrect docket number. Finally, as Hartford filed a motion for relief on the day of learning of the judgement, McDaniel, too, filed for relief quickly, filing within six days. In Hartford this Court held that “Rule 60(b) provides a trial judge with the discretionary capacity to right the unforeseeable wrong without having to undermine important procedural mandates.” Id., 936 So.2d at 894. The numerous errors made by the clerk constitute exceptional circumstances that justify relief for the McDaniels under Rule 60(b)(6), and the trial court was within its discretion when it granted the McDaniels’ motion pursuant to Rule 60(b)(6) to set aside the dismissal for want of prosecution. Therefore, this Court will, as we did in Hartford, uphold the judgment of the trial court.
¶ 27. Within the trial court decision, Cucos also refutes the relevancy of the clerk‘s failure to notify the McDaniels of the Order dismissing the case. The Court agrees in part and disagrees in part. Regarding Rule 41(d), the point in time which triggers the plaintiff‘s rights in preventing dismissal is when the clerk files the motion to dismiss at which time the plaintiff has thirty days in which to respond to prevent dismissal of the case. Thus, the important event for Rule 41(d) is the filing of the motion to dismiss and providing notification of the motion, rather than notice of the Order to dismiss. While this Court agrees that the Order to dismiss is irrelevant for the purposes of applying Rule 41(d), it finds the failure to send notice of the Order critically relevant for the application of Rule 60(b). Failure by the clerk to send notice of the Order to dismiss was one of several factors that justified the granting of relief under Rule 60(b)(6).
¶ 28. Cucos argues that the McDaniels do not qualify for relief under Rule 60(b) because they failed to exhaust procedural remedies available under
CONCLUSION
¶ 29. Lacking clear or specific guidance on the issue, the trial court ruling did not contradict existing law and moreover, directly complied with the objectives of Rule 41(d) as previously stated by this Court. Considering the totality of the trial court‘s findings, the trial court did not abuse its discretion in considering the McDaniels’ letter in response to the Clerk‘s Motion to Dismiss for Want of Prosecution and the hearing it held on the issue as sufficient to prevent dismissal for want of prosecution pursuant to
¶ 30. AFFIRMED AND REMANDED.
DICKINSON, Justice, dissenting:
¶ 31. After filing this lawsuit, the plaintiffs did nothing for over two years.6 Then, unbelievably, after the Clerk filed a motion to dismiss the case for want of prosecution,7 and after the Circuit Judge dismissed the case, the plaintiffs still took no action of record for another two years.8 Instead, the plaintiffs sent a letter to the Clerk simply asking that the case not be dismissed. Because I believe the plaintiffs failed to respond to the Clerk‘s motion to dismiss as required by M.R.C.P. 41(d), and because I believe the majority sets a dangerous precedent by approving the plaintiffs’ substituted compliance with an unapproved local “custom,” I respectfully dissent.
¶ 32. The issues in this matter are governed by Rule 41(d) of the Mississippi Rules of Civil Procedure. The Rule‘s requirements are stated in plain, unambiguous language. The McDaniels had thirty days following the Clerk‘s motion to either (1) take an “action of record,” or (2) make written application to the court showing “good cause” why his lawsuit should be allowed to continue. No amount of legalese legerdemain will convert the plaintiffs’ actions into compliance with either of these requirements.
The plaintiff took no action of record.
¶ 33. The majority expends much energy dancing around the language of Wilson v. Freeland, 773 So.2d 305 (Miss.2000), a case decided by this Court only six years ago. After christening Wilson “weak precedent,” the majority proceeds to ignore it as if it were no precedent at all. I am not so much concerned with the majority‘s desire to retreat from this Court‘s requirement that the plaintiff file an action of record that “hastens the suit to judgment.” To be sure, I didn‘t like that requirement when it was imposed in Wilson, and I still don‘t like it. What troubles me here is the majority‘s willingness to accept as an “action of record” a letter the plaintiffs sent to the Clerk which (1) does nothing more than, in essence, say “don‘t dismiss our case,” and (2) does not even request that it be filed of record. If this letter — which was not filed of record and which no one requested to be filed of record — complies with the “action of record” portion of Rule 41(d), then why not a phone call or a passing conversation in the supermarket?
¶ 34. In Wilson, this Court held that the action taken in the case, a motion to compel discovery, constituted an “action of record” specifically because such action “invariably `hastens a suit to judgment,’ as discovery is an integral part of the litigation process which must be completed before an action may proceed to trial. Consequently, [the chancellor] erred in dismissing the case as stale.” Id. at 309. The majority, after devaluing the Wilson Court for citing cases from foreign jurisdictions,
¶ 35. In her order, the Circuit Judge attempted to distinguish the Court of Appeals’ reasoning in Curry v. Walls, 871 So.2d 762, 764 (Miss.Ct.App.2004), by stating that, prior to the Curry decision, the practice and procedure in the Nineteenth Circuit Court District allowed a plaintiff to overcome the Clerk‘s motion to dismiss with a letter similar to the McDaniels’ letter. However, the Circuit Judge‘s Order neither distinguished Wilson (which clearly required the McDaniels to take some action that would “hasten the suit to judgment“), nor provided any authority for preempting a rule of civil procedure with an unapproved local rule.
The plaintiffs did not file a written application showing “good cause.”
¶ 36. The McDaniels’ letter made no attempt whatsoever to offer good cause as to why his case should remain on the active docket. In fact, the letter was completely silent on the issue of cause. They provided no explanation for why they had allowed more than two years to elapse without prosecuting their case. The letter merely stated, “[p]lease accept this letter as our notice that the above entitled matter should not be dismissed pursuant to the Clerk‘s motion to dismiss.” The McDaniels then let another two years pass without prosecuting their case. In my view, as a matter of law, this letter did not meet the requirements of Rule 41(d) to prevent dismissal of the McDaniels’ lawsuit.
Prior practice of the district
¶ 37. Additionally, the circuit court erred by relying on a prior practice of the district to justify the McDaniels’ failure to comply with the clear requirements of Rule 41(d). Local rules, practices, or procedures that have not been approved by this Court are ineffective and an inappropriate basis for claiming exemption from the mandates of the Mississippi Rules of Civil Procedure. Koerner v. Crittenden, 635 So.2d 833, 835 (Miss.1994); Watts v. Pennington, 598 So.2d 1308, 1313 (Miss. 1992). The majority completely ignores our precedent on this issue.
¶ 38. The majority declares its desire to “not deprive the plaintiff of [his day in court] for technical carelessness or unavoidable delay,” and while I agree with the majority‘s sentiment, I do not find that statement relevant to this case. The McDaniels’ neglect of their case for more than four years was not caused by technical carelessness or unavoidable delay. They chose their course of action, or rather inaction. Accordingly, I would find the circuit court erred in granting the McDaniels’ Motion to Set Aside Dismissal.
Failure to receive the Order Dismissing Case for Want of Prosecution
¶ 39. In her order, the Circuit Judge found that the McDaniels did not receive the order of dismissal. The Circuit Judge then stated, “[a]s a result, the Court finds that Plaintiffs were not given the opportunity to provide the Court with good cause why the case should remain on the docket.” I believe this finding is manifestly in error. As the majority acknowledges, whether the McDaniels received the order had nothing whatsoever to do with their opportunity to show good cause why the case should not be dismissed. The relevant question is whether the McDaniels
¶ 40. Stated another way, even if the McDaniels had received the order of dismissal, it would have had no bearing on the disposition of the Clerk‘s motion to dismiss, because by the time the order was entered, the McDaniels were already in violation of the rule. They failed to take an “action of record” and failed to provide, in writing, good cause as to why their case should not be dismissed. The entry of the order of dismissal was completely unrelated to the McDaniels’ failure to comply with Rule 41(d).
¶ 41. The Circuit Judge relied on Pre-Paid Legal Services, Inc. v. Anderson, 873 So.2d 1008 (Miss.2004), in holding that because the McDaniels were not sent notice of the order of dismissal, they were denied the opportunity to provide the court with good cause as to why the case should remain on the docket. In Anderson, the defendants were not sent notice of the entry of judgment and, as a result, the defendants failed to timely file their notice of appeal. Id. at 1009. Because the defendants rebutted the presumption that they had received the notice, this Court remanded the case to allow the defendants to file their appeal. Id. at 1010. The Circuit Court‘s reliance on Anderson is misplaced.
¶ 42. While it is true that both the McDaniels and the defendants in Anderson failed to receive notice of entry of the court‘s judgment, that is where the similarity ends. The issue here is not whether failure to receive notice of the judgment deprived a defendant of his right to appeal, as was the case in Anderson. The issue here is whether failure to receive notice of entry of the dismissal deprived the McDaniels of their right to comply with the requirements of Rule 41(d). As stated earlier, by the time the trial court entered the order of dismissal, the McDaniels should have already fully complied with the requirements of Rule 41(d) and, in fact, their time to do so had expired. Thus, they cannot blame their failure to comply with the rule on their failure to receive the order.
¶ 43. Notice of the entry of judgment alerts the opposing party of the need to take action within a prescribed time period following the entry. Anderson, 873 So.2d at 1010. Notice of an order of dismissal for want of prosecution does not serve a similar purpose. Rather, notice of the Clerk‘s Motion to Dismiss for Want of Prosecution is the comparable action, because that notice starts the clock for the opposing party to respond as to why the case should remain on the active docket. The McDaniels received this notice, so the clock began to run. A dismissal is entered when a party fails to timely respond or to take sufficient “action of record,” neither of which the McDaniels did in this case. The McDaniels’ failure to receive notice of the order of dismissal does not erase or excuse their failure to appropriately respond to the notice of the Clerk‘s Motion to Dismiss, which they did receive. Accordingly, the circuit court erred in finding that the McDaniels’ failure to receive the order of dismissal denied them the opportunity to show good cause. The McDaniels failed to satisfy the requirements of Rule 41(d), so the circuit court erred in setting aside the final judgment pursuant to Rule 60(b).
Relief under Rule 60(b)
¶ 44. The majority finds that this case involves “extraordinary and compelling circumstances” such that relief under Rule 60(b), as opposed to 60(a), is warranted. I cannot agree. Section (a) specifically deals
¶ 45. The majority relies on Hartford Underwriters Insurance Co. v. Williams, 936 So.2d 888, 892 (Miss.2006), a case where post-trial motions were filed late. Hartford involved a five-day delay, whereas in this case the plaintiffs failed to prosecute their case for four years. Additionally, in Hartford, the Court based its ruling in part on the inaccurate information received by the movant upon inquiry into the status of its case. Id. at 894. Here, we have no indication that the McDaniels ever asked the Court about the status of their case in the two years after they sent a letter to the Clerk. We have no reason to think that the McDaniels ever made, or even intended to make, such an inquiry. Regardless of its assertion to the contrary, the majority is allowing the McDaniels to use Rule 60(b) as an “escape hatch” for their failure to prosecute their case.
¶ 46. In my view, the circuit court had no basis for granting Rule 60(b) relief to the McDaniels from the Order Dismissing Case for Want of Prosecution. For this reason, and the other reasons stated herein, I would reverse the circuit court‘s granting of the McDaniels’ Motion to Set Aside Dismissal for Want of Prosecution, and render judgment dismissing this case.
RANDOLPH, J., JOINS THIS OPINION.