         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                 NO. 2015-CA-01144-COA

ESTATE OF PATAELAIN PAULK                                                     APPELLANT

v.

DR. ROGER T. LOTT A/K/A DR. ROGER                                              APPELLEES
THOMAS LOTT, DOCTORS CLINIC AND
PERRY COUNTY GENERAL HOSPITAL, LLC

DATE OF JUDGMENT:                           06/22/2015
TRIAL JUDGE:                                HON. ROBERT B. HELFRICH
COURT FROM WHICH APPEALED:                  PERRY COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     ANNIE L. AMOS
ATTORNEYS FOR APPELLEES:                    RICHARD O. BURSON
                                            SHIRLEY M. MOORE
NATURE OF THE CASE:                         CIVIL - PERSONAL INJURY
TRIAL COURT DISPOSITION:                    COMPLAINT DISMISSED FOR WANT OF
                                            PROSECUTION
DISPOSITION:                                AFFIRMED - 01/31/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       WILSON, J., FOR THE COURT:

¶1.    This medical malpractice case was filed in November 2012. In April 2015, the clerk

and the defendants moved to dismiss for failure to prosecute. There had been no action in

the case since the defendants filed their answer two years earlier. No response was filed to

either motion to dismiss, and the circuit court dismissed the case for failure to prosecute. The

circuit court did not abuse its discretion, so we affirm.

                        FACTS AND PROCEDURAL HISTORY

¶2.    The complaint filed in this case alleges the following: On November 23, 2010,
Pataelain Paulk was a patient at Perry County General Hospital. Dr. Roger Lott and/or some

agent(s) or employee(s) of the hospital “administered” Coumadin, a prescription medicine,

to Paulk in tablet form. The tablet was still in a blister pack (i.e., packaging) when it was

“administered” to Paulk. Paulk ingested the blister pack, which “lodged in her throat.”

Paulk had to undergo surgery and experienced pain and suffering as a result.

¶3.    On November 21, 2012, Paulk filed a medical malpractice complaint in the Perry

County Circuit Court. The complaint named Lott, the hospital, and the Doctors Clinic as

defendants. Paulk was represented by counsel. The defendants were served on March 14,

2013, and filed an answer on April 12, 2013.

¶4.    There was no further action in the case until April 8, 2015, when the circuit clerk filed

a motion to dismiss the case for failure to prosecute. On April 13, 2015, the defendants also

moved to dismiss for failure to prosecute. The defendants’ motion stated that they had

served discovery requests with their answer two years earlier but Paulk never provided

responses.1 Paulk did not respond to either motion. The docket reflects four subsequent

hearing notices, and apparently a hearing was held, but it was not transcribed and made a part



       1
          The circuit court docket sheet is consistent with this statement. It reflects that a
notice of service of discovery was filed on the same day as the defendants’ answer, but there
is no indication on the docket that Paulk ever served responses. “[U]nless ordered by the
court, discovery papers need not be filed until used with respect to any proceeding.
M.R.C.P. 5(d). Thus, “common practice before many Mississippi trial courts is to simply
file a notice of service of discovery or discovery responses with the clerk, rather than filing
discovery.” 1 Jeffrey Jackson, Mississippi Civil Procedure § 11:15 (2016); see also
McIntosh v. Victoria Corp., 877 So. 2d 519, 524 (¶¶17-18) (Miss. Ct. App. 2004).

                                               2
of the record on appeal.2 On June 22, 2015, the circuit court granted the defendants’ motion

to dismiss for failure to prosecute pursuant to Mississippi Rule of Civil Procedure 41(b).

¶5.    On July 22, 2015, new counsel entered an appearance for Paulk and filed a notice of

appeal.3 On November 12, 2015, the defendants filed a suggestion of death in this Court,

which stated that Paulk had died on or about February 3, 2014. On November 30, 2015,

counsel for Paulk filed a motion to substitute Paulk’s estate as the plaintiff/appellant, which

the Mississippi Supreme Court granted on January 7, 2016.4 The estate’s opening brief states

that “[t]here is no allegation that [Paulk’s] death was related to the underlying cause of

action.”

                                       DISCUSSION

¶6.    Mississippi Rule of Civil Procedure 41(b) authorizes a court to dismiss an action

“[f]or failure of the plaintiff to prosecute.” “The power to dismiss for failure to prosecute

is granted not only by Rule 41(b), but is part of a trial court’s inherent authority and is



       2
        The appendix to the defendants’ appellate brief includes correspondence indicating
Paulk’s attorney received notice of the hearing and that the hearing was rescheduled at least
once at his request. We do not rely on these documents, as they are not a part of the circuit
court record or the record on appeal, and they are not necessary to our decision.
       3
         The appendix to the defendants’ appellate brief includes a January 18, 2011 letter
that this attorney sent to the hospital regarding Paulk’s claim. Thus, although she did not
enter her appearance as counsel of record until July 2015, it does not appear that she was
entirely new to the case. As with the other correspondence in the defendants’ appendix, this
document is not part of the record on appeal, and we do not rely on it.
       4
         For simplicity, we refer to the plaintiff/appellant as “Paulk” except when referencing
the estate specifically.

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necessary for the orderly expedition of justice and the court’s control of its own docket.”

Cox v. Cox, 976 So. 2d 869, 874 (¶13) (Miss. 2008) (quotation marks omitted). “Because

the law favors a trial of the issues on the merits, a dismissal for lack of prosecution is

employed reluctantly.” Holder v. Orange Grove Med. Specialties P.A., 54 So. 3d 192, 196

(¶16) (Miss. 2010) (quoting Miss. Dep’t of Human Servs. v. Guidry, 830 So. 2d 628, 632

(¶13) (Miss. 2002)). However, “this Court may uphold a Rule 41(b) dismissal when there

is: (1) a record of dilatory or contumacious conduct by the plaintiff; and (2) a finding by this

Court that lesser sanctions would not serve the interests of justice.” Id. at 197 (¶18).

Moreover, our standard of review is abuse-of-discretion; therefore, on appeal from an order

dismissing a case for failure to prosecute, “we must affirm the trial judge unless we find that

he abused his discretion.” Hanson v. Disotell, 106 So. 3d 345, 348 (¶13) (Miss. 2013)

(emphasizing that we cannot reverse simply because “a reasonable trial judge very well might

have denied the defendants’ motion to dismiss”).

¶7.    Our Supreme Court has emphasized that the threshold question “is whether there is

‘a clear record of delay or contumacious conduct by the plaintiff[.]’” Holder, 54 So. 3d at

198 (¶20) (quoting Cox, 976 So. 2d at 875 (¶17)). Thus, “‘[d]elay alone may suffice’ for a

dismissal under Rule 41(b). ‘Factors other than delay are not required.’” Id. (citation

omitted) (quoting Cox, 976 So. 2d at 875 (¶18)). The trial court and this Court may also

consider “aggravating factors” such as “the extent to which the plaintiff, as distinguished

from his counsel, was personally responsible for the delay, the degree of prejudice to the


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defendant, and whether the delay was the result of intentional conduct.” State ex rel. Hood

v. Louisville Tire Ctr. Inc., 204 So. 3d 1250, 1256 (¶16) (Miss. 2016) (quoting AT&T v. Days

Inn of Winona, 720 So. 2d 178, 181 (¶13) (Miss. 1998)). “The presence of an aggravating

factor may serve to bolster or strengthen the case for a dismissal . . . .” Holder, 54 So. 3d at

200 (¶31). However, neither “contumacious conduct” nor an “aggravating factor” is required

to support a Rule 41(b) dismissal. Louisville Tire Ctr., 204 So. 3d at 1254 n.2 & (¶9).

¶8.    We have no difficulty concluding that there is a clear record of delay in this case. No

action was taken to prosecute the case after the complaint was filed in November 2012 until

the case was dismissed for failure to prosecute thirty-one months later. Paulk did not respond

to the defendants’ discovery requests, conduct any discovery of her own, respond to motions

to dismiss the case, or even appear for the hearing on the defendants’ motion. The Supreme

Court has deemed comparable delays sufficient to establish a “clear record of delay.” See,

e.g., Louisville Tire Ctr., 204 So. 3d at 1254 (¶11) (noting that the plaintiff “neither filed nor

pursued anything for approximately three years”); Manning v. King’s Daughters Med. Ctr.,

138 So. 3d 109, 116 (¶21) (Miss. 2014) (finding that the plaintiff “fail[ed] to take any action

in her case for two years after filing suit”); Hanson, 106 So. 3d at 348 (¶12) (finding that the

plaintiff “fail[ed] to take any action of record for four years”). Moreover, the Supreme Court

has held that a record of delay may be established by a plaintiff’s failure to timely respond

to discovery requests or a motion to dismiss or a plaintiff’s significant delay in commencing

discovery. Holder, 54 So. 3d at 197 (¶19). Here, Paulk never responded to the defendants’


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discovery requests or motion to dismiss and never pursued discovery. Finally, we note that

the Supreme Court has held that “the fact that a plaintiff’s sole activity was

reactionary”—i.e., in response to a motion to dismiss—also “support[s] a finding of a clear

record of delay.” Hillman v. Weatherly, 14 So. 3d 721, 727 (¶21) (Miss. 2009); accord

Manning, 138 So. 3d at 116 (¶21). Here, there was not even “reactionary” activity. Paulk

did nothing in response to the motions to dismiss; her first action after filing the complaint

was to file a notice of appeal, thirty days after the case had been dismissed.

¶9.    On appeal, Paulk argues that the circuit court’s dismissal of her case was an abuse of

discretion because there are no on-the-record findings of delay, contumacious conduct, or

aggravating factors. Paulk also argues that there is no record evidence of contumacious

conduct or aggravating factors. Finally, the estate argues that Paulk’s death excuses or

justifies the delay in prosecuting the case.

¶10.   Paulk never presented any of these arguments in the circuit court, so she is

procedurally barred from raising them in this Court.5 Procedural bar notwithstanding, these

arguments also lack merit. No action was taken in the case for thirty-one months after it was

filed. The circuit court was not required to make an on-the-record finding of that obvious

and undisputed fact. Moreover, even when a circuit court does not make specific findings,


       5
         See Collins v. Koppers Inc., 59 So. 3d 582, 589 (¶20) (Miss. 2011) (“[The plaintiff]
argues that dismissal was improper because the record does not reflect delay or
contumacious conduct, the trial judge did not consider lesser sanctions, and no aggravating
factors are present. . . . [She] never raised these arguments before the trial court, and she is
therefore procedurally barred from raising them before this Court.”).

                                               6
“this Court will assume that the trial judge made all findings of fact that were necessary to

support his [ruling].” Watson v. Lillard, 493 So. 2d 1277, 1279 (Miss. 1986).

¶11.   As to the alleged lack of evidence of contumacious conduct and aggravating

circumstances, we reiterate: “‘Delay alone may suffice’ for a dismissal under Rule 41(b).

‘Factors other than delay are not required.’” Holder, 54 So. 3d at 198 (¶20) (citation omitted)

(quoting Cox, 976 So. 2d at 875 (¶18)). Thus, the absence of contumacious conduct or

aggravating factors would not require reversal.         But in any event, prejudice to the

defendants—an aggravating factor—is evident because Paulk passed away without

responding to the defendants’ discovery requests, so she will be unavailable to testify at trial

or in a deposition. See Louisville Tire Ctr., 204 So. 3d at 1256 (¶¶16-18) (prejudice to the

defendant shown by the death of a key witness).

¶12.   As to the estate’s contention that the delay following Paulk’s death should not be

charged against it, we first note that over fourteen months elapsed between the filing of the

complaint and the date of Paulk’s death. This Court has held “that a delay of one year ‘can

clearly be seen as dilatory conduct.’” Shepard v. Prairie Anesthesia Assocs., 86 So. 3d 922,

927 (¶21) (Miss. Ct. App. 2011) (quoting Hasty v. Namihira, 986 So. 2d 1036, 1040 (¶17)

(Miss. Ct. App. 2008)). Therefore, the circuit court would have been justified in dismissing

the case based solely on the period of delay prior to Paulk’s death. Moreover, after Paulk’s

death, the burden fell to Paulk’s estate to move the case forward if it desired to prosecute the

claim. The estate’s failure to do so contributed to the clear record of delay in this case.


                                               7
Finally, we find it problematic that Paulk’s death was brought to the attention of this Court

only because the defendants filed a suggestion of death twenty-one months after she had

passed.6 When Paulk’s appellate counsel entered an appearance on her behalf and noticed

an appeal, she either was unaware that her client had been dead for over a year or else failed

to disclose that important fact to the circuit court and this Court. This only underscores the

complete lack of attention paid to this case from its inception.

¶13.   Paulk also argues that the circuit court abused its discretion by failing to make a

specific finding “that lesser sanctions would not serve the interests of justice.” Holder, 54

So. 3d at 197 (¶18). But the absence of such an express finding “does not require reversal.”

Collins, 59 So. 3d at 590 (¶25). “Although [the Supreme] Court has stated that it is ‘less

likely’ to affirm a Rule 41(b) dismissal if the record does not reflect that the trial court

considered lesser sanctions, it is clear that the ultimate decision lies with [the appellate]


       6
         We note that the filings in this Court regarding Paulk’s death do not include any
documentation that an estate has been opened on behalf of Paulk. The defendants merely
suggested her death, and Paulk’s appellate counsel then move “to substitute the Estate of
Pataelain Paulk as the Plaintiff/Appellant.” The motion stated that “Paulk is now deceased”
but failed to identify the administrator or executor of the estate or attach any order of a
chancery court opening an estate or issuing letters of administration or testamentary.
Ordinarily, if “litigants wish to pursue a claim on behalf of the estate of the deceased, such
estate must, of course, be opened and administered through the chancery court.” Delta
Health Grp. Inc. v. Estate of Pope ex rel. Payne, 995 So. 2d 123, 125 (¶12) (Miss. 2008)
(quoting Long v. McKinney, 897 So. 2d 160, 174 (¶60) (Miss. 2004)). And, ordinarily, the
administrator or executor is substituted as the named plaintiff. See Miss. Code Ann. § 91-7-
237 (Rev. 2013). We can only assume that an estate has been opened and that it has an
administrator or executor, since counsel filed a motion asking that Paulk’s estate be
substituted. And since the Supreme Court granted that motion before the case was assigned
to this Court, we proceed and decide the case on that assumption.

                                              8
[c]ourt.” Id.; see Holder, 54 So. 3d at 197 (¶19) (“[T]his Court may uphold a Rule 41(b)

dismissal when there is . . . a finding by this Court that lesser sanctions would not serve the

interest of justice.” (emphasis added)). Possible “[l]esser sanctions may include ‘fines, costs,

or damages against [the] plaintiff or his counsel, attorney disciplinary measures, conditional

dismissal, dismissal without prejudice, and explicit warnings.’” Hanson, 106 So. 3d at 347-

48 (¶9) (quoting Holder, 54 So. 3d at 198 (¶32)).

¶14.   This Court has no difficulty concluding that lesser sanctions would not serve the

interests of justice in this case. The clerk’s motion to dismiss, together with the defendants’

motion to dismiss, should have served “as a warning . . . that the case needed to proceed.”

Shepard, 86 So. 3d at 928 (¶25) (quoting Hasty, 986 So. 2d at 1041 (¶18)). That warning

went entirely unheeded, as Paulk failed to respond to either motion or even appear at the

hearing on the defendants’ motion. There is no reason to believe that “lesser sanctions”

would be effective when the clear threat of dismissal fails to draw even a response or

appearance from the plaintiff or plaintiff’s counsel. Under the circumstances, lesser

sanctions were not required. The circuit court did not abuse its discretion by dismissing the

case. Therefore, we affirm.

¶15. THE JUDGMENT OF THE CIRCUIT COURT OF PERRY COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR
AND GREENLEE, JJ., CONCUR. WESTBROOKS, J., NOT PARTICIPATING.



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