Keith P. Guidry v. Pine Hills Country Club, Inc. of Calhoun County
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-CA-01218-COA
KEITH P. GUIDRY
APPELLANT
v.
PINE HILLS COUNTRY CLUB, INC. OF CALHOUN
COUNTY
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
6/10/2002
HON. HENRY L. LACKEY
CALHOUN COUNTY CIRCUIT COURT
C. ASHLEY ATKINSON
CARYN LYNNE ANLAGE
W. SHAN THOMPSON
CIVIL - OTHER
DISMISSAL PURSUANT TO M.R.C.P. 41(D)
AFFIRMED - 10/28/2003
BEFORE MCMILLIN, C.J., THOMAS AND CHANDLER, JJ.
CHANDLER, J., FOR THE COURT:
¶1.
The appeal presented to this Court arises from the dismissal of Keith P. Guidry’s lawsuit against
Pine Hills Country Club, Inc. of Calhoun City for want of prosecution, pursuant to Rule 41(d) of the
Mississippi Rules of Civil Procedure. Feeling aggrieved, Guidry appeals the following errors:
I.
THE CIRCUIT JUDGE OF CALHOUN COUNTY, MISSISSIPPI ABUSED HIS
DISCRETION IN DISMISSING THE COMPLAINT.
II.
THE CIRCUIT JUDGE OF CALHOUN COUNTY, MISSISSIPPI ABUSED HIS
DISCRETION IN OVERRULING THE MOTION TO RECONSIDER.
¶2.
Finding no merit in Guidry’s appeal, the Court affirms the disposition of the trial court.
FACTS
¶3.
On July 30, 1994, Guidry attended a wedding at the Pine Hills Country Club and suffered an injury
walking down the steps of the clubhouse. Guidry alleged the cause of the accident was the negligent
placement and maintenance of a welcome mat at the Pine Hills Country Club. Guidry commenced the
lawsuit on July 24, 1997, approximately three years after the alleged negligence occurred.
¶4.
Pine Hills Country Club served its answers to the complaint on August 19, 1997, and propounded
discovery to Guidry on September 22, 1997. After receiving no response from Guidry, Pine Hills Country
Club filed a motion to compel on March 20, 1998. On March 31, 1998, the court ordered Guidry to
respond to the discovery request. Guidry did not sign the responses or swear to their authenticity as
required by Mississippi Rule of Civil Procedure 33. Instead, Guidry’s attorney signed the responses and
executed them for him.
¶5.
On April 17, 1998, Pine Hills Country Club filed motions to compel discovery and to strike
Guidry’s late discovery request for violation of Mississippi Uniform Circuit and County Court Rule 4.04.
No further action was taken by Guidry to pursue his case to trial for two years.
¶6.
The clerk of the court gave notice to the parties on June 15, 2000, that the case was being
dismissed pursuant to Mississippi Rule of Civil Procedure 41(d). The clerk noted that there was no activity
in pursuing the case for two years. Guidry filed a motion for extension of time to complete discovery and
the case was reinstated by the court. Guidry failed to take further action in the case for over a year after
reinstatement by the court.
¶7.
On June 22, 2001, the clerk issued another notice to the parties that the case was being dismissed
pursuant to Mississippi Rule of Civil Procedure 41(d) for failure to prosecute the case. In response, Guidry
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filed a motion to remain on the active docket, but gave the court no reason for his failure to diligently pursue
the case for five years The circuit court dismissed Guidry’s case without prejudice pursuant to Mississippi
Rule of Civil Procedure 41(d) for failure to prosecute. Guidry filed a motion for reconsideration to provide
for a scheduling order, reopening of discovery and setting the cause of action for trial. On June 27, 2002,
the judge denied Guidry’s motion for reconsideration.
I.
THE CIRCUIT JUDGE OF CALHOUN COUNTY, MISSISSIPPI ABUSED HIS
DISCRETION IN DISMISSING THE COMPLAINT.
¶8.
Guidry argues the trial court’s dismissal was an abuse of discretion and a violation of Mississippi
Rule of Civil Procedure 41(b), which provides, in relevant part: “For failure of the plaintiff to prosecute or
to comply with these rules or any order of court, a defendant may move for dismissal of action or any
claim.” M.R.C.P. 41. Rule 41(b) allows the court to dismiss an action involuntarily for dismissal for want
of prosecution as a penalty for dilatoriness. See M.R.C.P 41 cmt. ¶9.
Guidry relies on American
Telephone and Telegraph Company v. Days Inn of Winona, 720 So.2d 178 (Miss. 1998) and argues
his case was wrongfully dismissed pursuant to Rule 41(b). In a Rule 41(b) involuntary dismissal the
defendant moves for dismissal of the claim. In this case, the clerk of the court initiated the dismissals
pursuant to Rule 41(d). Pine Hills Country Club did not request the court to dismiss the case.
¶10.
The circuit clerk filed two notices of dismissal pursuant to Rule 41(d). Mississippi Rule of Civil
Procedure 41(d) provides:
where there has been no action of record during a twelve month period, the clerk
of the court shall mail a notice to attorneys of record that the case will be
dismissed by the court for want of prosecution unless within thirty days following
the mailing, action of record is taken or an application is made to the court
showing good cause why it should be continued as a pending case.
M.R.C.P 41. Guidry received notice of each involuntary dismissal by the clerk of the court. The first
dismissal was commenced after a two year period of inactivity on the part of Guidry in pursuing the cause
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of action. Following the first dismissal, Guidry filed a motion for extension of time to complete discovery
and the case was reinstated. After reinstatement, Guidry took no action to pursue the case to judgment
for over a year until he received a second Rule 41(d) dismissal notice by the clerk of the court.
¶11.
Guidry filed a motion to remain on the active docket but gave the court no reason for his lack of
diligence in pursuing the case for almost five years. As a result, Guidry’s case was dismissed pursuant to
41(d) for failure to prosecute. A Rule 41(d ) involuntary dismissal provides Guidry with thirty days to take
“action of record” and/or show good cause to the court why the case should not be dismissed. M.R.C.P
41. Guidry argues his motion to remain on the active docket is an action of record; therefore, the cause
of action should not have been dismissed.
¶12.
There are no Mississippi cases construing what constitutes an action of record, but the Mississippi
Supreme Court in Wilson v. Freeland, 773 So.2d 305, 309 (¶14) (Miss. 2000), held that the chancellor’s
signing of an order on a motion to compel constituted an action of record because it invariably hastens a
suit to judgment. See also Milu, Inc. v. Duke, 256 So.2d 83 (Fla. Dist. Ct. App. 1971) (filing of a notice
of hearing sufficient to avoid dismissal); Brumfield v. Varner, 561 So.2d 1376 (La.1990) (filing of order
of transfer and motion to consolidate constituted formal action on record and clearly was "step in its
prosecution or defense"); American Eagle, Inc. v. Employers' Liab. Assur. Corp., 389 So.2d 1339 (La.
Ct. App. 1980) (post-trial conference called by trial judge to facilitate completion of a transcript so that
briefs could be filed and a decision rendered was held to be a "substantial step in the prosecution");
Landberg v. State, 36 Wash. App. 675, 676 P.2d 1027, 1029 (1984) (where plaintiff filed motion for
change of judge twenty-seven days after notice of dismissal for want of prosecution was issued, motion was
in fact an affidavit of prejudice, and constituted action of record within thirty days, precluding dismissal for
failure to prosecute).
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¶13.
A common thread in the above cited cases reflects acts which are "hastening the suit to judgment."
Guidry’s motion to remain on the active docket does nothing to move the case closer to a judgment on the
merits. The case was on the docket in Calhoun County for five years. There have been two notices of
dismissal for failure to prosecute. There was never a request for a trial setting nor a request to set the
motions for hearings.
¶14.
In a three year period, the only actions by Guidry were to keep the case on the docket. The
actions do not meet the standard required to reverse the trial court.
II.
THE CIRCUIT JUDGE OF CALHOUN COUNTY, MISSISSIPPI ABUSED HIS
DISCRETION IN OVERRULING THE MOTION TO RECONSIDER.
¶15.
Guidry argues that the circuit court’s action in overruling his motion for reconsideration to provide
for a scheduling order, reopening of discovery and setting the cause of action for trial was an abuse of
discretion. Guidry states that his attorney had a duty pursuant to Rule 2.04 of the Uniform Circuit and
County Court Rules to pursue the motion to hearing before the court.
¶16.
Guidry argues that he is entitled to a hearing on his motion for reconsideration before the trial court
but offers no legal basis for his argument. The circuit judge gave due consideration to Guidry’s motion for
reconsideration. A hearing on the motion would serve no legitimate purpose.
¶17.
A dismissal pursuant to Rule 41(d) is warranted where there has been no action of record for the
preceding twelve months and after all parties have been given notice of the proceeding. Guidry shows no
good cause for failure to prosecute after two notices of dismissal by the clerk of the court.
¶18. THE JUDGMENT OF THE CIRCUIT COURT OF CALHOUN COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
IRVING, MYERS AND GRIFFIS, JJ., CONCUR.
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