                       IN THE SUPREME COURT OF MISSISSIPPI

                                   NO. 2009-CA-01124-SCT

CHARLES BARRY

v.

JOHN R. REEVES


DATE OF JUDGMENT:                             02/13/2009
TRIAL JUDGE:                                  HON. WINSTON L. KIDD
COURT FROM WHICH APPEALED:                    FIRST JUDICIAL DISTRICT OF HINDS
                                              COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                       JOEL W. HOWELL, III
ATTORNEY FOR APPELLEE:                        JOHN DOYLE MOORE
NATURE OF THE CASE:                           CIVIL - LEGAL MALPRACTICE
DISPOSITION:                                  AFFIRMED IN PART; REVERSED AND
                                              REMANDED IN PART - 09/30/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


          EN BANC.

          KITCHENS, JUSTICE, FOR THE COURT:

¶1.       Charles Barry filed this legal malpractice action against his former attorney, John R.

Reeves. After the case had been pending for nearly seven and one-half years, the trial court

granted Reeves’s motion to dismiss the case for failure to prosecute, and Barry appeals that

ruling.

                          FACTS AND PROCEDURAL HISTORY

¶2.       In the underlying medical malpractice case upon which this legal malpractice suit is

based, John R. Reeves represented Charles Barry and filed a complaint on his behalf against
Dr. Anson L. Thaggard and Methodist Medical Center, alleging negligent medical treatment

related to a snakebite wound Barry had suffered on June 21, 1996. Barry v. Thaggard, 785

So. 2d 1107, 1108 (Miss. Ct. App. 2001). Summary judgment was granted in favor of the

defendants on the theory that the applicable statute of limitations had run, and Barry appealed

to this Court, which assigned the case to the Court of Appeals. Id. at 1109. The Court of

Appeals affirmed the trial court’s granting of summary judgment in favor of the defendants.

Id. at 1111. Its opinion was handed down on May 21, 2001. Id. at 1107. Barry filed no

application for certiorari following the Court of Appeals’ decision.

¶3.    After losing his appeal, Barry filed this legal malpractice action against Reeves on

August 17, 2001, alleging breach of contract, breach of a fiduciary duty, and negligence, and

both parties engaged in discovery until at least April 30, 2002. Nine months later, Reeves’s

insurer, American National Lawyers Insurance Reciprocal (hereinafter “ANLIR”), went into

receivership, and the Chancery Court of Tennessee, Twentieth Judicial District, Davidson

County, entered an order enjoining litigation against ANLIR. This order was given full faith

and credit and comity by the Chancery Court of the First Judicial District of Hinds County,

Mississippi, by order dated February 20, 2003, and on March 14, 2003, Reeves filed a motion

to stay this proceeding for the duration of his insurer’s receivership. The trial court granted

Reeves’s motion on June 10, 2003.

¶4.    On August 31, 2004, Barry filed two motions, one asking the trial court to lift the stay,

and the other seeking leave to amend his complaint. The motion to lift the stay was argued

on November 30, 2004, and the trial court granted that motion, restoring the case to the active




                                               2
docket on December 1, 2004. That same day, Barry’s motion for leave to amend his

complaint was denied.

¶5.    On September 30, 2005, Barry filed a motion to reopen discovery and set the case for

trial, and that motion was heard in November 2005. After the trial court had not ruled on the

motion for more than a year, Barry sent a letter to the trial court on April 5, 2007, copying

opposing counsel and requesting a status conference. In response, Reeves filed a motion to

dismiss for failure to prosecute, alleging that Barry had done nothing more than sit on the

case for six years and file two frivolous motions.

¶6.     On March 11, 2008, Barry filed a motion for a status conference, noting that he had

“had motions to reopen discovery and to set this case for trial [pending] for more than one

year, and a ruling [was] sought thereon.” After the trial court had not ruled on that motion

for nearly a year, Barry sent a letter to the Administrative Office of the Courts, seeking relief

pursuant to Mississippi Rule of Appellate Procedure 15(a), and this Court ultimately entered

an order on February 4, 2009, granting Barry’s writ of mandamus and ordering the trial court

“to rule on the plaintiff’s Motion for Trial Setting and Related Relief and the Motion for

Status Conference . . . within fourteen (14) days of the date of [the] order.” Instead of ruling

on that motion, the trial court granted Reeves’s motion to dismiss for failure to prosecute,

which had been filed nearly two years earlier. Barry appeals that ruling.




                                           ISSUES


                                               3
¶7.    The issues presented for this Court’s consideration are (1) whether the trial court erred

in dismissing the case for failure to prosecute, and (2) whether the trial court erred in denying

Barry’s motion for leave to amend his complaint.

                                         ANALYSIS

1) Whether the trial court erred in dismissing the case for failure to prosecute.

¶8.    The courts of this state have the inherent power to dismiss a case for want of

prosecution, and a trial court may dismiss a case on that basis for the sake of expediting

justice and controlling its own docket. Hill v. Ramsay, 30 So. 3d 120, 122 (Miss. 2009)

(quoting Cucos, Inc. v. McDaniel, 938 So. 2d 238, 240 (Miss. 2006)). However, given the

severity and finality of this sanction, which strips a litigant of his opportunity to pursue his

cause of action, dismissal for failure to prosecute pursuant to Mississippi Rule of Civil

Procedure 41(b) is “reserved for the most egregious cases.” Hillman v. Weatherly, 14 So.

3d 721, 726 (Miss. 2009) (quoting Wallace v. Jones, 572 So. 2d 371, 376 (Miss. 1990)).1

A ruling dismissing the case with prejudice on this basis “will be affirmed only if there is a

showing of a clear record of delay or contumacious conduct by the plaintiff, and where lesser

sanctions would not serve the best interest of justice.” Id. (citing Am. Tel. & Tel. Co. v. Days

Inn of Winona, 720 So. 2d 178, 181 (Miss. 1998) (citing Rogers v. Kroger Co., 669 F. 2d

317 (5th Cir. 1982))) (emphasis added). “[C]ases ‘in which dismissals with prejudice have

been affirmed on appeal illustrate that such a sanction is reserved for the most egregious of




       1
       Mississippi Rule of Civil Procedure 41(b) provides: “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 an action or of any claim against him.” M.R.C.P. 41(b).

                                               4
cases, usually cases where the requisite factors of clear delay and ineffective lesser sanctions

are bolstered by the presence of at least one of the aggravating factors.” Am. Tel. & Tel. Co.,

720 So. 2d at 181 (quoting Rogers, 669 F. 2d at 320).

¶9.    When examining a trial court’s dismissal of a case for want of prosecution, this Court

will affirm the trial court’s findings of fact, unless the findings are manifestly wrong. Watson

v. Lillard, 493 So. 2d 1277, 1279 (Miss. 1986). “This Court will not disturb a trial court’s

ruling on a dismissal for want of prosecution unless it finds an abuse of discretion.” Hill, 30

So. 3d at 122 (citing McDaniel, 938 So. 2d at 240 (citations omitted)).

¶10.   Here, the trial court’s order dismissing the case for failure to prosecute emphasizes

the dates on which certain events occurred, including: June 21, 1996, when the underlying

negligence is said to have occurred; August 17, 2001, when the complaint was filed against

Reeves; June 10, 2003, when the matter was stayed due to ANLIR’s receivership

proceedings; December 1, 2004, when the stay was lifted; and April 10, 2007, when the

motion to dismiss the case for failure to prosecute was filed. After listing those findings of

fact, the trial court noted:

       The plaintiff had every opportunity to conduct and complete discovery from
       August 16, 2001[2 ], the date the complaint was filed, through June 10, 2003,
       the date this matter was Stayed. A review of the file reveals that plaintiff did
       not take advantage of that opportunity. . . . [S]ince the Stay was lifted on
       December 1, 2004 up to the filing of the herein motion to dismiss on April 10,
       2007, this matter was not prosecuted. It has been over twelve years since the
       incident herein occurred. The facts and circumstances surrounding the
       prosecution of this matter require that the herein matter be dismissed.




       2
      The certificate of service accompanying the complaint was signed August 16, 2001.
However, the complaint was not stamped filed until August 17, 2001.

                                               5
¶11.   These findings of fact are not supported by the record and are manifestly wrong. The

trial court found that Barry had not conducted discovery after he filed the complaint on

August 17, 2001, yet the record reveals that both parties actively participated in the discovery

process by requesting, producing, and supplementing discovery until at least April 30, 2002.

As for the trial court’s finding that Barry failed to prosecute the case after the stay had been

lifted on December 1, 2004, the trial court neglected to acknowledge that the stay was lifted

in response to Barry’s filing the motion to lift the stay. In addition, the trial court did not

note that Barry had filed a motion for trial setting and for additional relief on September 30,

2005, a motion on which a hearing was held in November 2005. The record also included

three letters sent in 2005 and 2006 in which Barry sought the aid of counsel opposite in

selecting a date upon which the case could be tried. Unsuccessful in that effort, Barry sent

a letter to the trial court on April 5, 2007, requesting a status conference on the case.

¶12.   It was not until after these efforts by Barry that Reeves filed his motion to dismiss for

failure to prosecute. Thus, the trial court’s failure to include these actions by Barry in its

findings of fact was a very relevant omission amounting to manifest error.

¶13.   Notwithstanding these erroneous findings of fact, it must be noted that there was some

delay in the prosecution of this case. Specifically, after the parties had engaged in discovery,

which the record indicates was last supplemented by Barry on April 30, 2002, a period of

nine months of inactivity preceded the Tennessee court’s order requiring a stay of all

litigation which exposed ANLIR to financial harm. Another ten-month period of inactivity

occurred between December 1, 2004, when the trial court granted Barry’s motion to lift the

stay and denied Barry’s motion to amend his complaint, and September 30, 2005, when


                                               6
Barry filed the motion to set the case for trial. After Barry filed the motion to schedule a

trial, the record reflects that he made several attempts to obtain a trial date through

correspondence with opposing counsel, but nothing in the record suggests that counsel for

Reeves responded to those efforts. After Barry sent his last letter to Reeves’s lawyer on

April 27, 2006, nothing occurred until April 5, 2007, when Barry sent a letter to the trial

court requesting a status conference. Another period of inactivity occurred between that

letter and Barry’s filing a motion, on March 11, 2008, for a status conference.

¶14.   However, the mere fact that delay occurs in the prosecution of a case is not sufficient

to warrant dismissal for want of prosecution. It must be clear from the record that the delay

was the result of the plaintiff’s failure to prosecute the claim, rather than extrinsic factors

beyond the control of the plaintiff. See M.R.C.P. 41(b).

¶15.   In the case at hand, it is far from clear that the delay in the prosecution of this case is

attributable to Barry. Indeed, each period of inactivity was interrupted by a positive action

by Barry to expedite the litigation. Specifically, after the receivership had ended, Barry filed

the motion to lift the stay. After the next ten-month period of inactivity, Barry filed a motion

to set trial, which has not been ruled on by the trial court. The next one-year period of

inactivity came to an end when Barry sent a letter to the trial court, requesting a status

conference and a trial date, and another period ended by Barry’s filing his motion for a status

conference and a trial date. Finally, the last period of inactivity was terminated when Barry

sent a letter to the Administrative Office of the Courts pursuant to Rule 15(a) of the

Mississippi Rules of Appellate Procedure.




                                                7
¶16.   What is clear from the record is that significant, protracted delays in the prosecution

of this case were beyond Barry’s control, including the near twenty-month delay attributable

to ANLIR’s receivership, the seventeen-month delay caused by defense counsel’s failure to

respond to Barry’s letters, and the trial court’s failure to rule on Barry’s motion for a status

conference. Accordingly, it cannot be said that there is a clear record establishing that Barry

delayed the case’s prosecution.

¶17.   Moreover, “[t]his Court has held that a case should be dismissed with prejudice under

Rule 41(b) only if lesser sanctions are inadequate.” Hillman, 14 So. 3d at 727 (citing Wilson,

4 So. 3d at 343). “Lesser sanctions include ‘fines, costs, or damages against plaintiff or his

counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice,

and explicit warnings.” Id. (quoting Miss. Dep’t of Human Servs. v. Guidry, 830 So. 2d 628,

633 (quoting Wallace, 572 So. 2d at 377)). This Court is not likely to affirm the dismissal

for failure to prosecute, unless it is clear that the trial court has considered lesser sanctions

and has concluded that “such sanctions would have been futile in expediting the

proceedings.” Am. Tel. & Tel. Co., 720 So. 2d at 181 (citing Wallace, 572 So. 2d at 377;

McCloud River R.R. Co. v. Sabine River Forest Prods., Inc., 735 F.2d 879, 883 (5th Cir.

1984) (trial court’s order vacated for failure to consider lesser sanctions)).

¶18.   In this case, prior to dismissing the case for failure to prosecute, the trial court had not

imposed any lesser sanctions, nor had it threatened counsel for Barry with lesser sanctions,

and nothing in the record suggests that the trial court considered lesser sanctions prior to

dismissing the case. Thus, because there is no clear record of delay or contumacious conduct

on the part of Barry, and the trial court did not consider lesser sanctions prior to its dismissal

                                                8
of the case for failure to prosecute, the trial court abused its discretion in dismissing this

case.

2) Whether the trial court erred in denying Barry’s motion for leave to amend his complaint.

¶19.    Mississippi Rule of Civil Procedure 15(a) allows a party to amend his or her

complaint with leave of court, and notes that “leave shall be freely given when justice so

requires.” M.R.C.P. 15(a).

        [I]f the underlying facts or circumstances relied upon by a plaintiff may be a
        proper subject of relief, he ought to be afforded an opportunity to test his claim
        on the merits. In the absence of any apparent or declared reason– such as
        undue delay, bad faith or dilatory motive on the part of the movant, repeated
        failure to cure deficiencies by amendments previously allowed, undue
        prejudice to the opposing party by virtue of allowance of the amendment,
        futility of the amendment, etc. – the leave sought should, as the rules require,
        be “freely given.”

Webb v. Braswell, 930 So. 2d 387, 393 (Miss. 2006) (quoting Moeller v. Am. Guar. and

Liab. Ins. Co., 812 So. 2d 953, 962 (Miss. 2002) (citations omitted)). Also, “[t]his Court

does not view lack of diligence as a compelling reason to amend.” Id. at 395. “Applications

to amend the pleadings should be prompt and not the result of lack of diligence.” Id. (citing

Harris v. Miss. Valley State Univ., 873 So. 2d 970, 991 (Miss. 2004)). If a party has “had

ample opportunity and time to amend its complaint, and has offered no justification for why

it did not do so,” this Court generally will affirm the trial court’s disallowance of an

amendment. Id.; see also Hartford Cas. Ins. Co. v. Halliburton Co., 826 So. 2d 1206, 1219

(Miss. 2001)). “Motions for leave to amend complaint are left to the sound discretion of the

trial court.” Church v. Massey, 697 So. 2d 407, 413 (Miss. 1997) (quoting McCarty v.

Kellum, 667 So. 2d 1277, 1283 (Miss. 1995) (quoting Frank v. Dore, 635 So. 2d 1369, 1375



                                                9
(Miss. 1994))). “This Court reviews such determinations under an abuse of discretion

standard and unless convinced that the trial judge abused his discretion, we are without

authority to reverse.” Id.

¶20.   Here, Barry filed his initial complaint on August 17, 2001, and sought leave to file an

amended complaint three years later, on August 31, 2004. The only variance between the

two complaints was the addition of a demand for punitive damages in the proposed amended

complaint. Barry’s argument rests simply on the fact that the rule says “leave shall be freely

given when justice so requires.” M.R.C.P. 15(a). Barry has offered no reason for his failure

to plead punitive damages in his initial complaint and for waiting three years to amend his

complaint to include the demand for punitive damages. Thus, Barry effectively has conceded

his lack of diligence in failing to plead punitive damages in the initial complaint.

Accordingly, the trial judge did not abuse his discretion in denying Barry the right to amend

his complaint.

                                       CONCLUSION

¶21.   Because there is not a clear record of delay or contumacious conduct on the part of

Barry, and the trial court did not consider lesser sanctions prior to dismissing the case for

failure to prosecute, the trial court abused its discretion in dismissing the case; therefore, the

ruling dismissing the case for failure to prosecute is reversed, and the matter is remanded for

a trial on the merits. But, because Barry failed to establish that his failure to plead punitive

damages in the initial complaint was not the result of lack of diligence, the trial court’s denial

of leave to amend the complaint is affirmed.

¶22.   AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

                                               10
     CARLSON, P.J, RANDOLPH AND LAMAR, JJ., CONCUR. GRAVES, P.J.,
CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN
OPINION JOINED BY DICKINSON AND CHANDLER, JJ. WALLER, C.J, AND
PIERCE, J., NOT PARTICIPATING.

     GRAVES, PRESIDING                  JUSTICE,      CONCURRING           IN    PART      AND
DISSENTING IN PART:

¶23.     I disagree with the majority’s holding that the trial judge abused his discretion by

granting the Motion to Dismiss for Failure to Prosecute. However, I do agree with the

majority that the trial judge did not abuse his discretion in denying the plaintiff’s motion to

amend his complaint. Therefore, I respectfully dissent in part and concur in part.

¶24.     In reviewing a trial judge’s ruling on a dismissal for want of prosecution, this Court

will not overturn that ruling unless it finds that the trial court abused its discretion. Hill v.

Ramsey, 3 So. 3d 120, 122 (Miss. 2009) (quoting Cucos, Inc. v. McDaniel, 938 So. 2d

238,240 (Miss. 2006)). In addition, this Court will affirm the trial judge’s finding of fact

unless the findings are manifestly wrong. Watson v. Lillard, 493 So. 2d 1277, 1279 (Miss.

1986).

¶25.     The facts of this case reveal that the plaintiff, Charles Barry, failed to aggressively

pursue his action against the defendant, John R. Reeves. On August 17, 2001, Barry filed his

complaint against Reeves for legal malpractice. Reeves then promptly filed his Answers and

Defenses on October 1, 2001. However, Barry failed to adequately answer Reeves’ First Set

of Interrogatories, which prompted Reeves to file his Motion to Compel Discovery on March

4, 2002.3 Nothing further appears in the record until March 14, 2003, when Reeves filed his


         3
       On January 30, 2002, in response to counsel opposite, counsel for Barry stated that
he would determine if supplementation was appropriate. At the time Reeves filed his Motion

                                               11
Motion for Emergency Stay of Proceedings based on his insurance carrier’s receivership

status.

¶26.      In addition, once the Stay was lifted on December 1, 2004, Barry took no action for

nearly ten months before filing his Motion for Trial Setting and Related Relief on September

30, 2005. A hearing was held on this motion in November 2005, and the trial judge took the

matter under advisement. With the exception of three letters in which Barry sought the aid

of counsel opposite in selecting a trial date, Barry failed to take action for almost two years

until filing his Motion for Status Conference on March 11, 2008. Here, Barry apparently

attempted to comply with Mississippi Rule of Appellate Procedure 15(a) by mailing a letter,

dated April 24, 2008, to the trial judge with a copy of a proposed order, requesting the trial

judge to rule on all pending motions. However, Reeves previously had filed his Motion to

Dismiss for Failure to Prosecute on April 10, 2007. Barry failed to respond to Reeves’

motion for almost a year.4

¶27.      On February 13, 2009, the trial judge entered an order dismissing Barry’s claim with

prejudice, finding that “[Barry] had every opportunity to conduct and complete discovery

from August 1[7], 2001, the date the complaint was filed, through June 10, 2003, the date this

matter was Stayed. A review of the file reveals that [Barry] did not take advantage of that

opportunity.” The trial judge also found that from the time the Stay was lifted on December




to Compel Discovery, Barry still had not complied with the request to supplement discovery.
          4
              Barry filed his response to Motion to Dismiss for Lack of Prosecution on April 7,
2008.

                                                 12
1, 2004, through April 10, 2007, the date Reeves filed his Motion to Dismiss, Barry did not

prosecute the matter.

¶28.       It is clear from the record that there was no abuse of discretion in this case. It is

neither the defendant’s nor the trial judge’s nor the court’s duty to ensure that the plaintiff

prosecutes his claim. It is the plaintiff’s. Here, Barry’s failure, not once, but twice, to take

affirmative steps in pursuing his cause of action against Reeves substantially delayed the

proceedings. Because these periods of inactivity were the product of Barry’s dilatory

conduct, the trial judge did not abuse his discretion in dismissing Barry’s action for lack of

prosecution.

¶29.   Pursuant to the Mississippi Uniform Circuit and County Court Rules “[a]ll discovery

must be completed within ninety days from service of an answer by the applicable defendant.

Additional discovery time may be allowed with leave of court upon written motion setting

forth good cause for the extension.” URCCC 4.04. This ninety-day period ended at the end

of December 2002. Although the parties continued correspondence concerning discovery for

another year, nothing prevented Barry from taking some action in moving the case forward.

Yet, he failed to do so.

¶30.   Furthermore, although Barry attempted to consult with counsel opposite regarding a

trial setting, Barry failed to seek a ruling on the matter from the trial court. According to the

record, Barry had seventeen months 5 in which to get a trial date set with the court. Yet, he




       5
       This time period is from November 2005, when Barry’s Motion for Trial Setting and
Related Relief was heard, through April 10, 2007, the date on which Reeves’ Motion to
Dismiss for Lack of Prosecution was filed.

                                               13
failed to do so and as a result, the trial court, on motion of the defendant, appropriately

exercised its discretion in dismissing the action.

¶31.   Accordingly, I must dissent in part and would affirm the trial judge’s ruling in

granting the defendant’s Motion to Dismiss for Failure to Prosecute; and concur in part,

affirming the trial judge’s ruling in denying the plaintiff’s Motion for Leave to File Amended

Complaint.

       DICKINSON AND CHANDLER, JJ., JOIN THIS OPINION.




                                             14
