IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2016-CA-00909-COA LEESA CRIM MCCHAREN APPELLANT

v. JUDSON MOORE ALLRED, III APPELLEE DATE OF JUDGMENT: 05/23/2016 TRIAL JUDGE: HON. W ILLIAM H. SINGLETARY COURT FROM W HICH APPEALED: HINDS COUNTY CHANCERY COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: PAUL E. ROGERS ATTORNEY FOR APPELLEE: ROBERT S. MURPHREE NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS TRIAL COURT DISPOSITION: GRANTED APPELLEE’S MOTION TO DISMISS ORDER REINSTATING THE CASE DISPOSITION: AFFIRMED: 08/01/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., FAIR, WILSON AND WESTBROOKS, JJ. FAIR, J., FOR THE COURT: ¶1. Leesa McCharen brought a claim against her ex-husband, Judson Allred I II, f or child support a rrearages, am ong other claim s. Af ter alm ost t wo y e ars of inactivity in t he case, the

c l e r k f iled a m o tion to d ism iss f or want of prosecution u nder Mississippi R u le o f C i v i l Procedure 41(d). Leesa f iled a m o tion to reinstate the c ase, and a hearing was held without Judson or his attorney present. 1 Af ter Leesa’s m otion was granted b y t he court, Judson f iled

1 Ju d so n ’s a tto rn ey claim ed th at th e co u rt a d m in istrato r to ld h im n o h earin g w as set o n th e d o c k et.a m otion to set aside the order r einstating the c a se. The court granted J udson’s m otion under

Mississippi Rule of C ivil P rocedure 60(b), f inding that there w a s no c om pelling reason f

or Leesa’s d e l a y i n prosecution. Leesa appeals. Finding the judge acted well w ithin his discretion, we af

f irm

. FACTS ¶2. Judson and L eesa, both f orm er attorney s, divorced in 1994. They had two daughters

– one born in 1985 and the other b orn in 1988. T he court granted Leesa phy sical and legal custody of the m inor children, s ubject to Judson’s visita t i o n r i g h ts. U nf ortunately , we are not privy to the details of

the divorce decree, as it was not included in the record. ¶3. On March 5 , 2012, Leesa f iled a petition f

or citat i o n o f c o n t e mp t a n d mo t ion to modif y f orm er o rders of t he court. She claim ed Judson owed m ore than the $46,000 i n
arrearages, plus interest

. L eesa also claim ed that he was in willf u l contem pt f or f ailing to obtain m edical insurance f or the m inor children and f o r f ailing to pay the insurance prem ium s in the amo u n t of $51,500.08. She m ade various other claim s, allegedly stem m ing f rom Judson’s f

ailure to adhere to the original divorce decree. Leesa also included private school tuition and private college tuition. All in all, h er claim s t otaled over $537,000. At the t im e of Leesa’s petition, their daughters were twenty -f our and twenty

- seven y ears old. ¶4. Af ter a y e ar of heated litigation, Leesa’s claim s d windled down to a lm ost $136,000.
Leesa’s last f

iling was on August 1 2 , 2013. On October 1, 2013, J udson f i led a m otion to dism iss based o n L eesa’s f ailure to add t heir daughters as necessary parties. The court held

2a hearing on the m otion on October 9. No order resulting f r om the hearing appears in the record, but a later hearing transcript m entions that the chancellor ordered Leesa to join her daughters as parties. Af

ter that h earing, Leesa took no action w h atsoever in the case. On
June 1, 2015, the clerk m oved that the case be dism i ssed under Rule 41(d). L eesa still did nothing. The court dism issed the case without p rejudice o n July 9, 2015. On August 7, 2015, Leesa f

iled a m otion t o reinstate the case. L eesa’s a t t o r ney , Paul Rogers, asked Judson’s attorney , Robert M urphree, if he would sign a n agreed order to reinstate the case. Murphree said no. In Decem ber 2015, Rogers contacted Murphree about possible hearing dates, and he a greed to s everal dates. According to Murph r e e , t hat was t he last he heard about the case. ¶5. The court held a hearing on February 2 5 , 2 0 1 6

. N e i t h e r Murphree nor Judson appeared. Leesa claim ed she w as unawar e o f the clerk’s m otion to dism iss because the

m otion listed the parties a s “Allred Jud s o n M o o r e ” a nd “Allred Leesa Crim ” i nstead of “Judson Moore Allred” and “Leesa Crim All r e d

. ” The c ourt ultim ately g ranted Leesa’s

m otion. Murphree said it was not until April 28, 2016, t hat he discovered there had been a hearing, when he received som e discovery f rom Rogers. At Murphree’s request, Rogers sent him a copy of the m otion to reinstate the case. ¶6. Murphree f

iled a m otion to set a side the order on May 2 , 2016. A f ew d ay s bef

ore the

m otion’s hearing, M urphree subm itted an af f ida v i t d e tailing his version of the events between A ugust 2015 and t h e F e b ruary 2016 h earing. Murphree s a id he never received

3notice of t he hearing. He also included copies of his notes f rom conversations with the court adm inistrator, who, on February 11, reportedly

told him the case was closed. ¶7. On May 17, 2016, t he court held a h earing o n what the chancellor called a Rule 60

m otion. The court f

ound no goo d c a u s e s h o wn f or L eesa’s delay and dism i ssed the case without prejudice. Leesa appealed.
STANDARD OF REVIEW ¶8. The trial court has the inherent authority to dism iss an action f o r l ack o f prosecution.
W allace v. Jones , 572 So. 2d 3 71, 375 (Miss. 1990). W e appl y a s u bstantial evidence/m anif

est error s tandard of review to the t rial court’s grant or denial of a m otion to dism iss pursuant t o R u l e 4 1 o f the Mississippi Rules o f Civil Procedure. Ill. Cent. R.R. v. Moore , 994 So. 2d 723, 733 (¶30) (Miss. 2008). Also, we will not reverse the trial court’s d e n i a l of relief f

rom judgm ent pursuant to Rule 6 0 of the Mississippi Rules of Civil Procedure unless the trial c ourt h as abused its discretion. Harrison v. McMillan , 828 So. 2d 756, 773 (¶51) (Miss. 2002).
DISCUSSION ¶9. Mississippi Rul e o f Civil Procedure 41(d)(1) states t hat the “case will be dism issed by the court f

or want of prosecution unl e ss within thirty day s f ollowing said m ailing [ notif y ing the attorney s the case will be dism issed], action of record is taken or an application in writing is m ade to the c o u r t a nd good cause shown why it should be continued as a pending case.” Leesa l ef

t her case dorm ant f

or alm o st two y ears. As a result, the clerk f iled

4a m otion t o d ism iss on J u ne 1, 2015. Leesa did nothing. Rule 41(d)(1) also states that “[ i]f

action o f re c ord is not taken or good c ause is not shown, t he court shall dism iss each such

case without prejudice.” M.R.C.P. 41(d)(1) ( em phasis added). So on July 9, 2015, the court entered an order to that ef f ect. Twenty -nine day s later, Leesa f iled a m otion to reinstate the

case. ¶10. The c ourt originally granted Leesa’s m o tion, presum ably because neither Judson n or h i s c o u n s el was present at the February 2 016 h earing. But af ter listening to Judson’s
argum ent at the M ay 2016 hearing, the chancellor f ound no good cause had been shown and dism issed the case without prejudice under R ule 60(b)(6). In doing so, he addressed Leesa’s claim that she did not recognize the m otion to dism i ss, sty l ed “Moore v. Crim ”: [ Leesa’s argum e nt that t he clerk f a i led] to properly

docket [ t he case] is a red herring. It’s pretty m

uch clearly docketed as this c a s e . . . . (T)he clerk m ay h a v e reversed the order of the nam es, but, goodness gracious, the las t n a me “Allred” l eads in b oth ref

erence t o plaintif

f a nd def e ndant, so I d on’t think y ou can possibly

m ake that argum ent with a straight f ace. ¶11. On appeal, Leesa abandons her sole argum ent f r om the t rial court and instead argues

t h a t : (1) prior to d ism issal, the statute of lim itations of Leesa’s claim had expired; and (2 ) Judson delay ed litigation with f rivolous m otions. It i s well e stablished that this Court will

not consider issues raised f or t he f irst tim e on appeal. Fowler v. W hite , 85 So. 3 d 287, 293 (¶21) (Miss. 2012). Thus, we decline to address Leesa’s current argum ents. ¶12. Rule 60(b)(6) allows a judge the opportunity to relieve a party f rom a f inal judgm ent f or any justif

iable reason. M.R.C.P. 60(b)(6). Af ter c aref ul review of the record, we f ind the

5chancellor acted within his d iscretion in f i n d i n g t hat Leesa f

ailed to show any com

pelling

reason f or h e r d e l ay i n prosecution. Accordingly , we a f f i rm the chancellor’s order setting aside the order reinstating the case. ¶13. AFFIRMED. LEE, C.J., IRVING AND G R I F F I S , P.JJ., BARNES, I SHEE, CARLTON, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

6