IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2016-CA-00464-COA RUSSELL GAILLARD APPELLANT

v. REA BROTHERS’ AUCTIONS, INC. APPELLEE DATE OF JUDGMENT: 08/13/2015 TRIAL JUDGE: HON. JOHN HUEY EMFINGER COURT FROM W HICH APPEALED: RANKIN COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: MARC E. BRAND JAMES W . NOBLES JR. JOHN DAVID SANFORD BRETT RAY KOEHN ATTORNEYS FOR APPELLEE: JOE S. DEATON III MICHAEL CHAD MOORE NATURE OF THE CASE: CIVIL - PERSONAL INJURY TRIAL COURT DISPOSITION: DISMISSED APPELLANT’S COMPLAINT W I TH PREJUDICE DISPOSITION: AFFIRMED - 06/20/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. CARLTON, J., FOR THE COURT: ¶1. Pursuant to Rule 41(b) o f the Mississippi R ules o f Civil Procedure, the Rankin County Circuit Court dism i ssed with prejudice Russell Gaillard’s com plaint against Rea Brothers’ Auctions Inc. (“Rea Brothers”) due to Gaillard’s f ailure to prosecute. Gaillard appeals the dism issal and argues the circuit court abused its discretion f or the f ollowing reasons: (1) the record f a ils to ref l ect a clear delay attributable to him ; (2) e ven if he contributed to a delay , the circuit court should have applied a lesser sanction; and (3) the record f ails to ref lect anyaggravating f actors. ¶2. Finding no abuse of discretion, we af f i rm the circuit c ourt’s dism issal with prejudice of Gaillard’s com

plaint f or f ailure to prosecute. 1

FACTS ¶3. On March 16, 2009, G aillard f iled a com

plaint f or dam ages against Rea B rothers in the County Court o f Rankin County

. Gaillard alleged that, while a ttending an auction on Rea B r o thers’ prem ises on Septem ber 26, 2 006, a vehicle driven by a Rea Brothers’ em ploy e e struck and i n

j u r e d h i m . T he trial docket i ndicates that, f or the rem ainder of 2009, Rea Brothers a lone f

ile d d o c u m ents relevant to Gaillard’s cause of action. In A pril 2009, Rea Brothers f

iled its answer and af

f irm ative def

enses to Gaillard’s com

p laint and propounded discovery requests to Gaillard. Then, on Novem ber 19, 2009, Rea Brothers f i led a m otion

to com pel Gaillard’s discovery

responses. Attached to its m otion to com pel, Rea Brothers included a copy of correspondence between the parties’ attorney s, w hich i n d i c a ted that G a illard had so f

ar f a iled to respond t o Rea Brothers’ April 2 009 discovery requests. On Decem ber 4, 2009, the county court entered an agreed order granting Rea Brothers’ m otion

to com pel Gaillard’s discovery

responses. ¶4. In J anuary 2010, Gaillard r esponded t o Rea Brothers ’ d i s c o v e ry requests. He then propounded his own discov e r y r e q u e s ts in February 2010 and noticed the deposition of

1 S ee H o ld er v. O r a n g e G ro ve M

ed

. S p ecia lties P .A

. , 5 4 S o . 3 d 1 9 2 , 1 9 6 (¶1 6 ) (M iss. 2 0 1 0 ) (ap p ly in g an ab u se-o f -d iscretio n stan d ard o f

rev iew to a R u le 4 1 ( b ) d ism i ssal). 2Kenny Rea i n July 2 010. Alm ost a y ear later, on August 16, 2011, Gaillard f i led a m otion

to a m end his c o m

plaint and to transf

er the case to circuit court. The c o unty court granted Gaillard’s m otion on Decem ber 16, 2011. ¶5. On January 6, 2 012, the circuit court entered an agreed scheduling o rder. On February 1, 2012, Gaillard d esignated his experts. He t hen f iled a n otice o f deposition f or his treating phy sician, Dr. Stanton W ard, on June 5, 2012. On July 19, 2012, Gaillard f

iled a response to Rea Brothers’ m otion to com pel him to subm it to an independent m edical exam

. ¶6. Pursuant to a Jan u a r y 2 0 1 3 o r d e r b y the circuit court, the parties unsuccessf ully participated in a m ediation conf erence o n April 4, 2 013. Rea Brothers f i led a supplem ental designation of an expert w itness on May 1, 2013. Rea Brothers then f iled a m otion to strike and/or exclude the testim ony o f Gaillard’s ex pert, Dr. W a rd, on August 2, 2013. On Novem ber 2 2, 2013, Gaillard f

iled a response to the m otion to strike a nd/or exclude Dr. W a rd’s opinions. ¶7. O v e r a y ear later, on January 16, 2015, Rea Brothers f iled its m otion t o d i s mi s s Gaillard’s com

p l a i n t p u r s uant to Rule 41(b) f or f ailure to prosecute. On the sam e day , Gaillard f iled a m otion to set the case f or trial. F ollowing two hearings in August 2015, the circuit c ourt entered o rders disposing of the p arties’ m otions. By its August 11, 2015 order, the circuit court denied Rea Brothers’ m otion t o strike and/or exclude D r. W ard’s testim ony . However, by a subsequent order entered August 1 3 , 2015, t he circuit court granted Rea Brothers’ m otion to d ism is s G a i l l a r d’s com plaint f o r f a ilure to prosecute. Following the

3circuit court’s dism i ssal with prejudice of his c o m plaint , G a i llard f

iled an unsuccessf

ul

m otion to reconsider. Aggrieved by the circuit court’s judgm ent, Gaillard appeals. STANDARD OF REVIEW ¶8. A t r i a l c o u r t ma y d i s m iss an action due t o the p laintif f ’s f ailure to p r o s e c u t e . M.R.C.P. 41(b). However, “[ b]ecause the law f avors a trial of the i ssues o n the m erits, a dism issal f

or l ack of prosecution is em ploy ed reluctantly .” H

older , 54 So. 3d at 196 (¶16) (quoting Miss. D ep’t of Human Servs. v. Guidry , 830 So. 2d 628, 632 (¶13) (Miss. 2002)). This Court reviews a Rule 41(b) dism issal f or abuse of

discretion, and we af

f irm when the f ollowing f

actors exist: “(1) a record of dilatory or contum acious conduct by the plaintif

f ; and (2) a f

inding by [ an appellate court] that lesser sanctions would n o t s e r ve t he interests of justice. Additional ‘aggravating f actors’ or a ctual prejudice m ay bolster the c a s e f o r dism issal, but are not requirem ents.” Id. at 196-97 (¶¶16, 18). DISCUSSION ¶9. As previously stated, Gaillard argu e s o n a p p e a l t h at the circuit court erroneously dism issed his com

plaint f or the f ollowing reasons: (1) the r ecord f ails to ref lect a clear delay attributable to him ; (2) even if he c ontributed t o a d elay , the circuit court should have applied

a lesser sanction; and ( 3) the record f ails to ref lect any aggravating f

act o r s . S e e i d

. a t 197 (¶18). ¶10. W h ile adm itting that a delay occurred in t his case, Gaillard c ontends that (1) he w a s not solely responsible f

or the d elay , (2) the circuit court erroneously attributed the delay to

4him a lone, and (3) the length of t he delay was short when com pared to other cases where the appellate courts have af

f irm e d a Rule 41(b) dism i ssal. Gaillard asserts that both parties contributed to the delay by e ngaging in discovery throughout the proceedings, agreeing to the am ended scheduling orders, and participating in m ediation. Gaillard f urther argues that, af ter m ediation proved unsuccessf ul, Rea B rothers extended t he d elay by f ailing to notice f

or hearing its m otion to exclude a n d / o r strike Dr. W ard’s testim ony . In addition, Gaillard

asserts that the circui t court never ruled on Rea Brothers’ m otion t o exclude Dr. W ard’s testim o ny and that the c ourt erroneously counted against him Rea Brothers’ delay in bringing the m otion. Moreover, Gaillard claim s he was t he one who f inally acted to end the delay by f iling his m otion to set the case f o r trial. ¶11. Relevant to the issue p resented in this case, the Mississippi Suprem e Court h as stated:

In analy zing the dism i ssal of a c a s e p ursuant t o Rule 4 1(b), the [ appellate c ] o u r t f

i r st l ooks to see if there is a r ecord of dilatory or contum acious conduct b y t he plaintif f

. T hen, the [ appellate c]ourt determ ines if l esser sanct i o n s o t h er than dism issal would better serve the interests of justice. T he [ appellate c]ourt also m ay consider aggravating f actors or actual prejudice to the def

e ndant, and the presence of t he f actors o r p rejudice, though not necessary , m ay

strengthen a case f

or dism issal. State ex rel. Hood v. Louisville Tire C t r . I n c . , 2 04 So. 3 d 1250, 1254 ( ¶9) ( Miss. 2016) (internal citations, quotation m arks, and f ootnote om itted). ¶12. In the present case, the circuit court held a n August 4, 2 015 hearing on Rea Brothers’

m otion to strike and/or exclude Dr. W ard’s testim ony and i ts m otion to dism iss Gaillard’s

com plaint. D uring the hearing, Gaillard’s attorney agreed with t he court t hat, except f or the

5disposition of Rea Brothers’ m otion to strike and/or exclude Dr. W ard’s testim ony , the case

had been ready f

or trial f o r over two y ears since June 2013. Gaillard’s a ttorney a lso agreed with the court’s assessm ent that nothing had prevented the plaintif f (Gaillard) f

rom taking f urther action t o prosecute the proceedings, such as f iling a m otion to set the m atter f or trial. ¶13. At a se c o n d h e a r i n g o n August 11, 2015, t he circuit court entered a bench ruling granting Rea Brothers’ m otion to dism iss f or f ailure to p rosecu t e . I n so doing, the court f ound that, af

ter G aillard f

iled his com

plaint in March 2009, he t ook no o ther af f irm ative action of recor d t h a t y e ar to prosecute the case. The circuit court also noted that, in Decem ber 2009, t he county court entered a n agreed order granting R ea Brothers’ m otion to

com pel Gaillard’s discovery responses. As a result, the c ircuit court determ ined “there was delay during 2009 to the extent that a m o tion to com pel was granted.” ¶14. The circuit court next acknowledged that, in 2010, Gaillard f iled his responses to Rea Brothers’ discovery requests, served his own discov e r y r e q u e s t s on Rea Brothers, and noticed his intent t o take a deposition. However, even assum ing that the scheduled deposition took place in July 2010, the court f ound the r e c o r d c o n t a i n ed “no o ther af f irm a tive act of [ Gaillard] advancing this case . . . af ter July . . . 2010.” I n f

act, the circuit court c oncluded that Gaillard took no f

urther af f irm ative action in the case until over a y ear later in August 2011, w hen he f

iled a m otion t o am end the com plaint and transf

er the m atter to circuit court. As a result, the circuit court attributed a y ear-long delay to Gaillard. ¶15. The circuit court then f ound that, the f

ollowing y ear, Gaillard designated h is experts

6in February 2 0 1 2 a n d n o ticed his intent in J une 2012 to depose Dr. W ard. Although the

parties thereaf

ter agreed to several am ended scheduling orders d u ring 2 012, and although Gaillard f

iled a r esponsive pleading to one of R ea Brothers’ m otions, the c i r c u i t court determ ined t hat the February and J une 2012 f ilings were the only af

f irm ative s teps Gaillard took during 2012 to m ove the case f orward. ¶16. As f

or 20 1 3 , t h e c i r c u i t c o u r t n o t e d t h a t the parties u nsuccessf ully attem pted

m ediation. Af

ter an April 2 013 letter inf orm ing the court that m ediation had f ailed, however, the circuit court f

ound that the record contained no other evidence of a n af f irm a tive act by Gaillard d uring 2013, although Gaillard did f ile a Novem

ber 2013 r esponse to R e a Brothers’

m otion to strike and/or exclude Dr. W ard’s testim ony . The circuit court f urther determ ined that no e vidence existed to s how t hat Gaillard took any af f irm ative action to prosecute the

case in 2014. In January 2015, Rea Brothers f iled i ts m otion to dism iss G aillard’s c om plaint. ¶17. Based on its review of the record, the circuit court stated during the August 4, 2015 hearing that, between t he tim e m ediation f ailed in A pri l 2 0 1 3 a n d R ea Brothers f iled its

m otion to dism iss in January 2015, alm ost t wo additional y ears passed w i t h o u t Gaillard taking any af

f i rm ative action to advance prosec u t i o n o f t he case. The court f urther stated durin g t h e A u g u st 4, 2015 hearing that, af ter reading caselaw, it f

ound the argum ent by Gaillard’s attorney that he was “waiting to f ind out whether

. . . [ Rea Brothers] was going to call up [ its] m otion to s t r i ke” to be an insuf f icient a n d unreasonable excuse f or the nearly two-y ear delay

.

7¶18. As Mississippi caselaw e stablishes, “[ a] showing of delay or contum a cious conduct

is suf f icient f or a R ule 4 1(b) dism issal when a lesser sanction w o uld n ot serve the best i n terests of justice.” Holder , 54 So. 3d at 198 (¶20) (citation om itted). The record h e r e ref lects suf f icient evidence to support the cir c uit court’s f inding that Gaillard engaged in “dilatory c onduct” that warranted the Rule 41(b) dism issal of his com plaint rather than the application o f a lesser sanction. See id. at 197 (¶17); see also S tate e x rel. H ood , 204 So. 3d

a t 1255-56 (¶15) (f

inding no abuse of d iscretion f rom the chancellor’s determ ina t i o n t h a t lesser sanctions w ere insuf f icient where the chancellor heard oral argum ent on the issue and considered lesser sanctions in m aking his decision). ¶19. Even th o u g h t h e p a r t i e s a g r e e d t o mu l t i p l e a me n ded scheduling orders and participated in m ediation, t he r ecord clearly ref lects several long periods of t im e between the March 2009 f

iling of the com

plaint and the January 2015 d ism issal of the case where Gaillard t ook l ittle or n o af f irm ative action to advance the p rosecution of the m atter. Furtherm o re, the record dem onstrates that G a i l l a r d not only delay ed responding to Rea Brothers’ discovery requests to t he extent that the county court granted Rea Brothers’ m otion

to com pel, b ut also that m

uch of Gaillard’s activity was reactionary —i

. e . , i n r esponse to

m otions f iled by Rea Brothers. See Estate of Paulk v. L ott , No. 2015-CA-01144-COA, 2017 W L 413079, at *3 ( Miss. Ct. App. Jan. 31, 2 017) (recognizing that a plainti f f ’ s f ailure to tim ely r espond to discovery requests and his reactionary activity can s u pport a clear record of delay ). W e theref

ore f ind no abuse of discr e t i o n f r om the c ircuit court’s dism issal of

8Gaillard’s com plaint f or f ailure to prosecute. See Holder , 54 So. 3d at 196 (¶16). ¶20. T H E JUDGMEN T O F T H E R A N K I N C O U N T Y C I R C U I T C O U R T I S AFFIRMED. A LL COSTS OF THIS APPEAL ARE A S S E SSED TO THE APPELLANT. LEE, C.J., GRIFFIS, P.J., BARN E S , I S HEE, FAIR, WILSON AND WESTBROOKS, JJ., CONCUR. IRVING, P.J., AND GREENLEE, J . , D I SSENT WITHOUT SEPARATE WRITTEN OPINION.

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