IN THE COURT OF APPEALS

8/26/97

OF THE

STATE OF MISSISSIPPI

NO. 95-CA-01371 COA

MARY LARIMER APPELLANT

v.

JOHN L. CAMPBELL II, M.D. APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND

MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. JERRY O. TERRY

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: BEN GALLOWAY III

JOE SAM OWEN

ATTORNEY FOR APPELLEE: STEPHEN GILES PERESICH

NATURE OF THE CASE: MEDICAL MALPRACTICE
TRIAL COURT DISPOSITION: DISMISSED WITH PREJUDICE FOR DISCOVERY

VIOLATIONS AND FAILURE TO PROSECUTE

MOTION FOR REHEARING FILED:9/5/97

CERTIORARI FILED: 11/13/97

MANDATE ISSUED: 2/24/98

BEFORE McMILLIN, P.J., HERRING, AND KING, JJ.

McMILLIN, P.J., FOR THE COURT:

This case is before the Court as an appeal from an order dismissing the plaintiff's complaint, with

prejudice, on motion of the defendant. The case was commenced in the Circuit Court of Harrison

County. The motion sought dismissal under both Mississippi Rule of Civil Procedure 37(b), for

failure to comply with an order for discovery, and Mississippi Rule of Civil Procedure 41(b), which

permits involuntary dismissal for failure to prosecute or to comply with any order of the trial court.

The trial court, after a hearing, granted the motion. The order did not specify which rule the court

relied upon. The ruling was accompanied by an opinion rendered from the bench outlining the court's

reasoning in granting the motion. This bench ruling also failed to specify which rule the court relied

upon to dismiss.

I.

Facts

Mary Larimer filed this case as a medical malpractice claim against the defendant, John L. Campbell,

on December 20, 1993, about three days prior to the expiration of the statute of limitations on the

claim. Approximately four and a half months later, on May 2, 1994, Campbell filed lengthy discovery

requests in the form of interrogatories and requests for production of documents. Repeated informal

attempts by Campbell's attorney to obtain responses to discovery requests produced promises but no

results. Campbell's counsel ultimately filed a motion to compel discovery pursuant to Rule 37(a) on

November 18, 1994. Defense counsel did not file that motion until discovery responses were over

five months past due. The trial court signed an order dated November 21, 1994 ordering Larimer to

respond to all discovery no later than December 1, 1994. Larimer did not comply with the terms of

the order. Neither did her attorney seek an extension of the deadline imposed in the court's order.

Instead, the order was simply ignored. Approximately eight months later, on August 6, 1995, Mary

Larimer died. On November 14, 1995, Campbell filed his motion seeking dismissal for discovery

violations and failure to prosecute and noticed plaintiff's counsel for a hearing on the motion for
December 15, 1995. On November 30, 1995, Wilbur N. Larimer, Mary Larimer's surviving spouse,

entered an appearance, and the suit was revived in his name. Wilbur Larimer had obtained different

representation, and on December 4, 1995 -- eleven days prior to the hearing on Campbell's motion --

the new attorneys served the belated discovery responses on Campbell. Campbell nevertheless

persisted in pursuing the motion to dismiss. As we have noted, he was successful, and the trial court

dismissed the case with prejudice.

Larimer has appealed, seeking to have the trial court's order of dismissal set aside. In the appeal,

Larimer presents only one issue. Finding the action of the trial court to be within the limits of

discretion afforded him in these matters, we affirm the dismissal.

II.

Discussion

Larimer assigns only one issue in his Statement of the Issues required under Mississippi Rule of

Appellate Procedure 28(a)(3). The issue, very narrowly framed, is as follows:

"May a Plaintiff's case be dismissed with prejudice as a result of the Plaintiff's former counsel failing to

comply with a discovery order when the Plaintiff had no knowledge of the Order or the inaction of his

former counsel."

As to this narrow issue, largely unaddressed in Larimer's brief, the answer would appear to be in the

affirmative. The law holds that the failings of a party's counsel of the nature found in this case are

directly chargeable to the client.

There is certainly no merit to the contention that dismissal of petitioner's claim because of his counsel's

unexcused conduct imposes an unjust penalty on the client. Petitioner voluntarily chose this attorney

as his representative in the action, and he cannot now avoid the consequences of the acts or omissions

of this freely selected agent. Any other notion would be wholly inconsistent with our system of

representative litigation, in which each party is deemed bound by the acts of his lawyer-agent and is

considered to have "notice of all facts, notice of which can be charged upon the attorney."

Link v. Wabash R. Co., 370 U.S. 626, 633-34 (1962).

However, the entire contents of Larimer's brief argues a related, but unquestionably separate and

broader issue. Campbell's reply brief makes no mention of this shift in focus and responds to the issue

actually argued. We will, therefore, consider the more general issue actually argued by the parties to

this appeal.

The thrust of Larimer's argument centers around the proposition that the trial court's decision to

impose the ultimate sanction of dismissal with prejudice was not merited on the facts of this case as
being unduly harsh and thus, an abuse of discretion. As a part of that argument, Larimer attempts to

distance himself from the conduct of his original counsel to some extent and cites the Court to a

number of cases where, in certain factual situations, an appellate court has concluded that a dismissal

on the merits for misconduct or malfeasance solely chargeable to counsel was too harsh a remedy.

Nevertheless, Larimer's argument deals not with the trial court's authority to dismiss on the facts, but

rather with the question of whether, in dismissing, the trial court abused its discretion -- an argument

that necessarily concedes the existence of at least the bare authority.

We conclude that in this case, the trial court acted within its allowable range of discretion. This case

involves not an isolated instance of attorney misconduct or malfeasance, but an extended course of

conduct that evinced a clear attitude that the rules of procedure and orders of the court could be

ignored with impunity. These rules serve the purpose of permitting the trial court to keep cases on

the docket moving toward resolution and permitting an opposing party to gather, through discovery,

the information necessary to formulate its trial strategy. An attorney filing a suit has a duty to pursue

the claim with a measure of diligence. The facts of this case reveal that defense counsel exercised

considerable restraint in trying to cajole and then prod plaintiff's counsel into fulfilling his ruleimposed duties. Nevertheless, the point underlying the polite letters of inquiry appears clear to this

Court and ought to have appeared with equal clarity to Larimer's attorneys. The fact that defense

counsel conveyed his insistence that discovery be completed in courteous terms does nothing to

diminish the message conveyed. These attempts were repeatedly ignored before defense counsel

resorted to the more severe measure of seeking an order of the court to compel compliance. Yet,

even the order of the trial court was completely ignored for a period approaching one year.

The cases cited by Larimer in support of this aspect of his argument do not appear to involve such an

extended and unexplained lack of diligence in pursuing a claim. Rather, many of those cases deal with

one-time incidents of attorney misconduct of which the client may not have been aware. By way of

example, in Silas v. Sears, Roebuck and Co., the Fifth Circuit held that a dismissal with prejudice was

unduly harsh when the only basis was "because of [plaintiff's] attorney's failure to prepare for and

appear at the pretrial conference." Silas v. Sears, Roebuck and Co., 586 F.2d 382, 385 (5th Cir.

1978). Even in that case, the court, in discussion, conceded the authority of the trial court to impose

the ultimate sanction if there is "a clear record of delay or contumacious conduct by the plaintiff." Id.

at 385 (quoting Durham v. Florida East Coast Ry. Co., 385 F.2d 366, 368 (5th Cir. 1967)). In

Hassenflu v. Pyke, the dereliction of counsel is not clearly stated, but it appears to revolve around

plaintiff's counsel's failure to notify some opposing attorneys that a summary judgment motion

hearing had been canceled. Hassenflu v. Pyke, 491 F.2d 1094, 1095 (5th Cir. 1974).

In all events, it is not so readily apparent that the client in this case can be absolved from

responsibility for the disregard of discovery rules and the general lack of diligence with which the

case was prosecuted. A litigant who entrusts a claim to an attorney ought fairly to be held to some

measure of diligence in following the progress of the litigation and prodding counsel along when

necessary. We see no valid reason to permit a litigant to retain counsel to file suit and then simply

retire from the field for a period of almost two years in blind reliance on counsel's efforts and yet

deny any responsibility if the case is not pursued with the proper degree of diligence. Even in this

case, where the original plaintiff was undoubtedly experiencing some health difficulties, we have no

evidence to suggest that in the extended period from the filing of the suit until her death, she was so

incapacitated that she was incapable of making routine inquiries to check on the status of the
litigation. Even then, such inquiries could have been undertaken by others were she so ill as to be

unable to make the appropriate visits or telephone calls herself. Further, though this Court is certainly

not unsympathetic to Mr. Larimer's loss at the death of his wife, we must observe that a period of

almost four months elapsed from the death until an effort was made to accomplish the most basic act

of reviving the claim.

Remembering that, in this case, we are considering claims of a general failure to prosecute that

extends beyond a mere failure to complete discovery, we must look at other factors that bear on the

diligence with which this claim was pursued. This medical malpractice claim, involving an allegation

of negligent misreading of an x-ray, required expert testimony to establish the standard of conduct

and prove the defendant's breach of that standard. Palmer v. Biloxi Regional Medical Ctr., Inc., 564

So. 2d 1346, 1357 (Miss. 1990). The names of the expert witnesses for the plaintiff was one area of

inquiry in the defendant's long-unanswered discovery. The responses to discovery showed that the

plaintiff, in pursuit of this claim, did not even obtain the requisite expert witness prepared to offer

such testimony until twenty-three months after the filing of the suit. Thus, it appears that the plaintiff

was content to file this suit, claiming medical malpractice, and then permit the suit to languish on the

docket for almost two years without taking the most fundamental step of investigating whether

competent evidence was available on the key element of the claim. It appears to this Court that this is

a classic case of a plaintiff failing, for an unconscionably long period, to take the most basic step to

pursue her claim. M.R.C.P. 41(b).

As our supreme court has properly observed, a claim of abuse of discretion necessarily admits of two

possible choices by the trial court. Thus, on appeal, we do not seek to determine whether the trial

court was "correct" in its decision, since, so long as the issue lies fairly within the range of the court's

discretion, the election to come down either way on the question is not reversible on appeal.

Cunningham v. Mitchell, 549 So. 2d 955, 958 (Miss. 1989). Our task is limited to determining

whether the decision can be said to fall within the limits of discretion permitted to the trial court.

The trial court is, and must be, vested with a significant degree of discretion in the manner in which it

handles its court docket. In aid of that purpose, our rules of procedure vest the court with authority

that ought to be well-known and understood by the attorneys appearing in that court, if not the

litigants themselves. It is not unreasonable to expect litigants and litigants' counsel to exercise the

most basic degree of diligence in pursuing a lawsuit once filed. It is also not unreasonable to expect

that, when the disregard of that duty appears, on its face, to be obstinate and protracted over an

unconscionably long period of time, the trial court may elect to apply the most severe sanction

available in its arsenal. That is what occurred in this case, and this Court is in no position to conclude

that this decision constituted an abuse of the discretion vested in the trial court.

It can be argued with some persuasiveness that a less harsh sanction would have been sufficient to

deal with the appellant's abuses. However, in cases involving the exercise of discretion, that will

always be the case since the existence of only one arguably proper result logically negates the

existence of any measure of discretion. The trial court heard the arguments in favor of a lesser

sanction and rejected them. This Court is in no position to substitute its collective judgment of the

proper result for that exercised by the trial court. The decision to dismiss with prejudice is affirmed.

THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT IS AFFIRMED.
COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

BRIDGES, C.J., HERRING, HINKEBEIN, KING, AND SOUTHWICK, JJ., CONCUR.

DIAZ, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY COLEMAN

AND PAYNE, JJ. THOMAS, P.J., NOT PARTICIPATING.

IN THE COURT OF APPEALS

8/26/97

OF THE

STATE OF MISSISSIPPI

NO. 95-CA-01371 COA

MARY LARIMER APPELLANT

v.

JOHN L. CAMPBELL II, M.D. APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND

MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

DIAZ, J., DISSENTING:

I respectfully dissent from the majority opinion. While Mississippi Rule of Civil Procedure 37(b)

authorizes dismissal of an action as a form of sanction, it is clearly the most extreme sanction
available. Hapgood v. Biloxi Regional Medical Ctr., 540 So. 2d 630, 634 (Miss. 1989). "[T]his

remedy is so drastic that 'it should be used only in extreme situations, as the court has a wide range of

lesser sanctions'." Connolly v. Papachristid Shipping Ltd., 504 F.2d 917, 920 (5th Cir. 1974) (citing

Flaska v. Little River Marine Constr. Co., 389 F.2d 885, 887-88 (5th Cir. 1968)). The standard

imposed is whether "there is a clear record of delay or contumacious conduct and lesser sanctions

would not serve the best interests of justice." Wallace v. Jones, 572 So. 2d 371, 376 (Miss. 1990).

While it certainly appears that Mrs. Larimer's former counsel breached his duty to both the court and

Mrs. Larimer by failing to proceed with her case, "dismissal may be inappropriate when neglect is

plainly attributable to an attorney rather than a blameless client . . . ." Hapgood, 540 So. 2d at 634.

In the case at bar, Mrs. Larimer herself had prepared discovery responses for ultimate tender to Dr.

Campbell. However, in the interim between the time of filing the complaint and her attorney's

withdrawal from the case, Mrs. Larimer's health declined, resulting in her death. Efforts to obtain

substitute counsel were understandably delayed under the circumstances.

Evidence that her former attorney essentially abandoned her case, coupled with Mrs. Larimer's illness

and subsequent death, militate against any finding of "contumacious conduct" on her part. "Dismissal

with prejudice is an extreme and harsh sanction that deprives a litigant of the opportunity to pursue

his claim, and any dismissals with prejudice are reserved for the most egregious cases." Wallace, 572

So. 2d at 376. This case is not one deserving of such a harsh sanction; therefore, the judgment of the

Harrison County Circuit Court should be reversed.

COLEMAN AND PAYNE, JJ., JOIN THIS SEPARATE OPINION.