IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-CA-01082-COA
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 TRIAL JUDGE: HON. W INSTON L. KIDD COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANTS: DONALD W . BOYKIN ATTORNEYS FOR APPELLEES: LEE ANN C. THIGPEN JOE S. DEATON III TROY FARRELL ODOM RICHARD JASON CANTERBURY JIM W ARREN III CLIFTON MICHAEL DECKER MICHAEL CHAD MOORE NATURE OF THE CASE: CIVIL - PROPERTY DAMAGE DISPOSITION: AFFIRMED: 09/11/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., BARNES AND GREENLEE, JJ. BARNES, J., FOR THE COURT: ¶1. On Novem

ber 9, 2003 , T o n y a n d L i nda Sm ith entered into a real estate contract (Contract) with John H endon f or the purchase of a hom e in Rankin County , Mississippi. The
Sm iths were represented b y Cindy Sm ith and C entury 21 M aselle & A s sociates (Century 21).
Coldwell Banker Graham & Associates Inc. (Coldwell Banker) and Cindy Lai representedthe seller, Hendon.

¶2. On January

14, 2005, the Sm iths f

iled a First Am ended Com p laint in Hinds County
Circuit Court, First J udicial D i s t r i c t, against Hendon, Union P lanters B ank NA (Union Planters), First A m erican R eal Estate Solutions of Texas L.P., Successor in Interest to First
Am erican Flood D ata Services Inc

. ( First Am erican), C entury 21, Cindy S m ith, Coldwell Banker, L ai, Mark S

. Bounds Realt y P a r tners Inc. (Bounds), Donald C onn J r., a nd W ay ne
C. W illiam s. 1 A s t he h o m e had f lo o d e d a f

e w m onths a f

ter its p urchase, the com plaint alleged negligence and/o r f raudulent inducem ent on the part of the nam ed def endants surrounding the issue of

whether the property w as located within a f lood zone. ¶3. Conn, who conducted t he property ’s appraisal, f iled interrogatories and a request f or production of docum ents on February 23, 2005. More than three y ears later, af ter the Sm iths
f ailed to r espond, Conn f

iled a m otion to com

pel discovery on Septem

ber 12, 2 0 08. The
Sm iths assured Conn they would im m ediately produce the discovery responses; so he took the hearing of

f the court’s docket. But the Sm iths again f a iled t o respond to the discovery requests, and Conn f

i led a second m otion to com pel discovery

on March 3, 2009. ¶4. In the m e antim e, B ounds a nd W illiam s, who were also involved with the property ’s

1 T h e i n i t i a l co m

p lain t w as f

iled in N o v em

b er 2 0 0 4 , b u t it w as n o t in clu d ed in th e reco rd

. T h ere is n o in d icatio n in th e reco r d th at H en d o n , U n io n P lan ters, o r F irst A m erican f iled an y b rief s related to th is m atter, an d th ey are n o t p arties to t h e ap p eal.
C e n tu ry 2 1 a n d C in d y S m ith are also n o t p arties to th is ap p eal as t h eir claim s w ere o rd ered to arb itratio n b y th e M ississip p i S u p r em e C o u rt i n C en tu ry 2 1 M

a selle & A sso c. In c. v. S m ith , 9 6 5 S o . 2 d 1 0 3 1 , 1 0 3 9 (¶1 4 ) (M i ss. 2 0 0 7 )

. 2appraisal, f

iled a m otion to com

pel the d epositions of t he Sm iths o n February 25, 2009. The

m o t ion asserted that although depositions had been scheduled and noticed on prior occas i o n s , the Sm iths “unilaterally cancelled these depositions in order to conduct f urther discovery on the def endants” and had not “responded to m ovant Def endants’ various r e c e n t requests to proposed dates f

or [ their] depositions.” Bounds and W illiam s f ol l o w e d with a m otion to

com pel discovery r esponses on Jun e 1 1

. O n J u ne 30, 2009, the trial c ourt g ranted the

m otions of Conn, Bounds, and W illiam s. T h e Sm iths reached an agreem ent with the
def endants to produce the docum e nts , h o w e v er, and no f orm al hearing w as held. Depositions
of the Sm iths w ere taken o n August 17-18, 2009, with counsel f or Coldwell Banker, L a i , Conn, Bounds, W illiam s, and Hendon present. ¶5. Af ter Coldwell Banker a nd Lai f iled a m otion f

or sum m ary judgm ent o n Septem ber 14, 2010, the Sm iths f

iled a m otion to set trial o n Septem ber 17 and a respon s e t o the

sum m ary -judgm ent m otion on Oct ober 21. Conn f iled a sum m ary -judgm ent m otion on January 11, 2011; Bounds and W illiam s f ollowed with a m otion f

or sum m ary judgm ent on February 8, 2011. On July 26, 2 0 12, the circuit c ourt denied all t hree sum m ary -judgm ent

m otions. ¶6. Eighteen m onths later, af ter no f urther action had been t aken by t he Sm iths, Coldwell Banker, Lai, Bounds, W illiam s, and Conn all f iled m otions to dism iss f

or lack of prosecution
in January 2014. 2 The Sm iths im m ediately r esponded with a m otion to set trial on January

2 C o ld w ell B an k er a n d L ai assert in th eir b rief th at t h ey f iled a p rio r m o tio n to d ism iss f o r f ailu re to p ro secu te o n S ep tem b er 1 3 , 2 0 1 0

. T h is m o tio n is n o t co n tain e d i n th e reco rd ;

329, contending that any delay in setting a trial d ate “is n o f ault of the Plaintif

f s ” but, rather,
due t o t heir counsel’s ongoing health issues. Coldwell Banker, Lai, B ounds, and W illiam s
f iled a notice of hearing a week later. However, the Sm iths took n o f u r t h e r action to set a trial; so on Novem

ber 1 6, 2015, Coldwell B anker and Lai f iled a m otion t o dism iss f

or lack
of p rosecution, with B ounds and W illiam s f i ling a joinder to the mo t ion o n Decem ber 11.
The m otion noted that it had been alm ost eleven y ears since the Sm iths h ad f iled t heir initial

com plaint and that the Sm iths “have gone y ears at a t im e w ithout taking any acti o n in the
case.” The Sm iths f

i led a response in opposition to the m otion to dism iss on February 18,
2016. ¶7. On June 28, 2016, the circuit court granted the Appellees’ m otions to dism iss, noting
there had been “no substantial activity in this m atter f or a period w ell exceeding 12 m onths.” 3 Finding no just cause f

or the delay , the court entered a Mississippi Rule o f Civil Procedure 54(b) f inal judgm ent of dism i ssal “with prejudice as to all claim s” except f or those parties previously ordered to arbitration (Century 21 and C indy Sm ith). On July 2 7 , 2 016, the
Sm iths f iled a notice of appeal o f the court’s dism issal of t he action, as well as a m otion f or

th eref o re, th e A p p ellees’ attemp t to in clu d e it b y attach in g i t as a “reco rd ex cerp t” is im p ro p er. S

ee M

. R .A .P

. 1 0 (e) ( o u tlin in g th e p r o ced u re f o r th e su p p lem en tatio n o f t h e reco rd o n ap p e al). T h e t r i a l d o ck et, h o w ev e r, d o es ref lect th at C o l d w e ll B an k er an d L ai f iled a “ m o tio n t o d i s m iss” o n S ep tem b er 1 3 , 2 0 1 0 , w h ich d o es su p p o rt th eir assertio n
. F u rth erm o re, th e reco rd c o n tain s C o n n , B o u n d s, an d William s ’s j o in d ers in C o l d w ell B a n k er’s an d L ai’s “m o tio n to d ismi s s f o r f ailu re to p ro secu te.” A cco rd i n g ly , w h ile w e can n o t c o n sid er th e d o cu m en t attach ed as a p u r p o rted “reco rd ex cerp t,” w e t ak e n o tice o f th e d o c k e t an d th e j o in d er m o tio n s.

3 T h ere is n o tran scrip t o f a h earin g o n th e m o t io n s to d ism i ss co n tain e d i n th e reco rd

. 4clarif

i cation of the judgm e nt of

dism issal and to set trial. 4 ¶8. On appeal, we f

ind no abuse of d iscretion in the circuit court’s f indings, and we af

f i rm the judgm ent.
ANALYSIS ¶9. Under Mississippi Rule of Civil Procedure 41(b), a def endant m ay m ove f

or dism issal
of a ny action or claim against him “[ f ]or f ailure of t he plaintif

f to prosecute

. . . .” M.R.C.P. 41(b). “Rule 4 1 (b) e mb o d i e s t he tenet that ‘any court of law o r equity m ay e x ercise the

p o w e r to d ism iss f

o r want of prosecution. This power, inherent t o t he c ourts, is necessar y

as a m eans to the orderly expedition o f j u s t i c e a nd the court’s control of its own docket.’”
Hillman v. W

eatherly , 14 So. 3d 721 , 7 2 6 ( ¶ 17) (Miss. 2009) (internal quotation m arks

4 A s th e S m ith s ’ m o tio n to clarif y w as n o t f

iled w ith in ten d ay s o f th e j u d g m en t, it is
n o t a R u le 5 9 m o tio n , w h ich w o u ld stay th e ap p eal. S e e M

. R

. C .P

. 5 9 (e). “T h e tim e f o r ap p eal b eg in s to ru n o n ly af t er t h e en try o f th e o rd er d isp o sin g o f t h e last p o st-trial m o tio n , if th e m o tio n is f

iled n o la t er t

h a n 1 0 d a ys a fter th e en try o

f th e ju d g m en t .” B ra n d v. B a rr , 9 8 0 S o . 2 d 9 6 2 , 9 6 5 (¶9 ) (M iss. C t. A p p . 2 0 0 8 ) (citin g M

. R .A .P . 4 (d )).
A h e a r i n g o n th e m o tio n to clarif y w as h eld o n D ecem

b er 5 , 2 0 1 6

. T h e S m ith s arg u ed th at b e cau se H en d o n h ad n o t f iled an y p lead in g s, h e s h o u l d n o t b e in clu d ed in th e j u d g m en t o f d ism issal, an d a trial sh o u ld b e set. T h e S m ith s n o w a ssert o n ap p eal t h at b ecau se H en d o n f

a iled t o f ile a b rief , t h e j u d g me n t o f d ism issal “ sh o u ld b e r ev ersed an d rem an d ed , if in f

act, th e j u d g m en t ap p l[ ies] to h im .” A s th is issu e w as n o t p resen ted to th e circu i t co u r t b ef

o re th e n o tice o f ap p eal w as f iled , w e f

in d th is issu e i s n o t p ro p erly p reserv e d f

o r o u r rev iew

. T h e S m ith s ad d itio n ally f i led a m o tio n req u estin g th e A p p ellees b e req u ired to p ay ad d itio n al c o sts f

o r p rep a ratio n o f th e trial reco rd

. P r o mp t e d b y a req u est f ro m th e M ississip p i S u p r em e C o u rt f o r clarif icatio n o f w h o w as to p ay co sts, th e circu it c o u rt en tered an o rd er, d en y in g th e S m ith s’ m o tio n req u e s tin g p ay m en t o f co sts o n Jan u a ry

1 7 , 2 0 1 7

. 5om itted). “W hat constitutes f ailure to prosecute i s considered on a case-by -case basis.” Id. ¶10. W h en reviewing a circuit court’s dism issal f or f ailure to prosecute under Rule 41(b),

we em ploy an abuse-of

- discretion standard. H

olmes v. Grisby , 234 So. 3d 425, 427-28 (¶8) (Miss. Ct. App. 2 0 17) (citing Holder v. Orange G rove Med. Specialties P .A. , 5 4 S o. 3d 192,
196 (¶16) (Miss. 2010)). “Because the l a w f avors a t rial of the issues on the m erits, a dism issal f

or lack of p r osecution i s em ploy ed r eluctantly .” Id

. at 428 (¶8) (quoting Holder , 54 So. 3d at 196 (¶14)). “[ D]ism issal f or f ailur e t o com

ply with an o rder of t he trial court
is appropriate only where there is a clear record of delay or contum a c ious c onduct and lesser
sanctions would not s erve the best interests of j ustice.” C ollins v. Koppers Inc. , 59 So. 3d 582, 589 ( ¶19) (Miss. 2011) (quoting W allace v. J

ones , 572 So. 2 d 371, 376 (Miss. 1990)).
The trial c ourt m ay also “ consider aggravating f a ctors or actual prejudice to the def endant,
and the presence of the f

actors o r prejudice, though not necessary , m ay strengthen a case f or dism issal.” State e

x rel. Hood v. L ouisville Tire Ctr. I nc. , 204 So. 3d 1250, 1 254 (¶9) (Miss. 2016) (citing Holder , 54 So. 3d at 197 (¶18)). The Sm iths contend that the circu it court’s
dism issal f

or lack of prosecution was an abuse o f d iscretion as they were not responsible f or the delay and nothing in the record proves any prejudice to the Appellees. ¶11. W e f

i n d t h e r e c o r d s h o w s t h a t f rom 2005 to 2009, the Sm i ths were d ilatory in responding to the Appellees’ discovery reques t s. The Sm iths were served with several interrogatories and requests f or production of docum ents by the v arious def endants in 2005
but f ailed to respond f

or o ver three y ears, requiring the def endants to f

i le m otions to com

pel

6discovery in 2008. “ [ A] record of delay m ay b e e stablished by a plaintif f ’s f ailure to timely respond to discovery requests o r a motion to dism iss or a p laintif f ’s s ignif icant delay in

com m encing discovery .” E state of Paulk v. Lott , 217 So. 3d 747, 750 (¶8) (Miss. Ct. App. 2017) (citing Holder , 54 So. 3d at 197 (¶19)). ¶12. The S m iths argue they were not responsible f or the delay i n prosecution. They claim
that a def a ult judgm ent was entered against Hendon on March 24, 2005, w ho s u bsequently
f iled a suggestion o f bankruptcy , and an autom a t i c stay of that proceeding was instituted.
This s tay was a llegedly lif ted on Septem

ber 16, 2010. Theref

ore, b ecause Hendon f

iled f or bankruptcy , the Sm iths had to wait f or the autom atic stay to be lif ted. However, there are no docum ents regarding the bankruptcy in our record. Counsel f or the Sm iths o nly ref

erenced
Hendon’s bankruptcy during the hearing on the m otion to c larif y the judgm ent. A dditionally ,

as we have already noted, f rom 2 005 t o 2007, there was also ongoing litigation regarding the
arbitration clause in the Contract, which resulted i n the suprem e court ordering arbitration proceedings between the Sm iths and Century 21 and Cindy Sm ith. ¶13. Regardless, these issues o f the bankruptcy / autom atic stay and the litigation over the
arbitratio n clause in t he Contract do not explain w hy the Sm iths have m ade no ef f ort to

prose c u t e t h e i r claim s against the other def endants since 2010. As Bounds and W illiam s assert in their brief

, the Sm iths’ f

iling of the m otion to set a trial on January 29, 2014, was “purely r eactionary and done only af ter Coldwell B anker and Lai f iled a [ m ] otion to [ d]ism iss
f or l ack of prosecution.” Our C ourt has held: “‘[ T]he f act that a plaintif

f ’s sole activity was

7reactionary ’—i.e., in response to a m o tion to dism iss—als o ‘ s u p p o r t s a f inding o f a clear
record of delay

. ’” Paulk , 217 So. 3d at 750 (¶8) (quoting H illman v. W

eatherly , 14 So. 3d 721, 727 (¶21) (Miss. 2009)). ¶14. As to any prejudice toward the def endants, t here was an a

pproxim ate f

our-y ear delay
between the S mi ths’ m otion to set trial in 2010 and the Appellees’ m otions t o dism iss f or lack of prosecution i n 2014. There was also an eighteen-m onth delay between the Appellees’
2014 m otions to dism iss a n d t h e i r subsequent m otions to dism iss in 2015. Even af ter the Appellees f

i led the third m o tion to dism iss, the S m iths took three m onths to respond. In
Holder , t he suprem e court f ound that a less-than-two-y ear delay resulted in presum ed prejudice t o the def

endant, and that delay alone supported the trial court’s decision to dism iss
with p r ejudice. Holder , 53 S o. 3d at 201 (¶34); see also Regan v. S

. Cent. Reg ’ l. Med. Ctr. , 234 So. 3 d 1242, 1246 (¶¶13,17) ( Miss. 2017) (f inding no abuse of discretion in t rial court’s
dete r mi nation that p laintif f ’s “three separate signif

icant periods of inactivity f rom 2010 to 2015,” with each p e riod lasting “ mo r e than a y e a r
. . . e videnced a clear record of delay ”).
Theref ore, we f i nd the record suf

f iciently shows a clear record of

delay by the Sm iths, and the Appellees were prejudiced by their dilatory

conduct. ¶15. The S m iths also contend that the circuit court should h ave considered lesser sanctions.
W h ile the record does not indicate whether the c i rcuit court ever considered lesser sanctions, the suprem e court has held that “this f act alone does not require reversal.” Collins , 59 So.
3d at 590 (¶22). “Although this Court has stated t hat it i s ‘less l ikely ’ to af f irm a Rule 41(b)

8dism issal if the record does n ot ref lect that the [ circuit] court considered lesser sanctions, it
is clear that the ultim ate decision lies with t his Court.” Id

. As d iscussed, the S m iths f ailed

to respond to requests f

or interrogatories and discovery f or over three y ears, prom

pting som e Appellees to f

ile m o tions to com

pel. Furtherm ore, af

ter no action was taken by the Sm iths
f rom 2010 to 2014, the Appellees were f orced to f ile three separate m otions t o dism iss, with

an eighteen-m onth delay between the f ilings of the 2 014 a nd 2015 m otions a n d with practically no response f rom the Sm iths, except a subm i ssion of a m otion f or a trial in
reaction to the f

ilings. In this instance, we f ind lesser sanctions would not have served the
best interests of

justice. ¶16. Accordingly , we cannot f ind that the c ircuit court abused its discretion in d ism issing the action with prejudice, and we af f irm the judgm ent. ¶17. AFFIRMED. LEE, C.J., IRVING AND GRIFFIS, P
. J J., CARLTON, F AIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

9