                     IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2008-CA-00589-SCT

ANN ODEM HILLMAN

v.

WILLIAM B. WEATHERLY


DATE OF JUDGMENT:                            02/29/2008
TRIAL JUDGE:                                 HON. ROGER T. CLARK
COURT FROM WHICH APPEALED:                   HARRISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                     CAREY R. VARNADO
                                             SHANNON S. MCFARLAND
ATTORNEYS FOR APPELLEE:                      LUTHER T. MUNFORD
                                             JAMES GRADY WYLY, III
                                             WILLIAM CROSBY PARKER
                                             THEAR I. LEMOINE
NATURE OF THE CASE:                          CIVIL - LEGAL MALPRACTICE
DISPOSITION:                                 AFFIRMED - 08/13/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       BEFORE GRAVES, P.J., KITCHENS AND CHANDLER, JJ.

       CHANDLER, JUSTICE, FOR THE COURT:

¶1.    Ann Odem Hillman filed a complaint for legal malpractice against attorney William

Weatherly on September 4, 2002. Hillman alleged that she was involved in a motor-vehicle

accident on September 4, 1996. She alleged that on July 7, 1999, William Weatherly agreed

to represent Hillman in a personal-injury action arising from the accident, but he failed to file

suit before the running of the applicable statute of limitations. Hillman requested $250,000,
representing the amount she would have been entitled to recover in the personal-injury suit

but for Weatherly’s alleged malpractice.

¶2.    On February 29, 2008, the circuit court dismissed Hillman’s complaint with prejudice

for failure to prosecute under Mississippi Rule of Civil Procedure 41(b). Hillman appeals,

arguing that the circuit court abused its discretion by dismissing her complaint with

prejudice.   We find that the circuit court applied the appropriate legal standard and

committed no abuse of discretion. Therefore, we affirm.

                        FACTS AND PROCEDURAL HISTORY

¶3.    Hillman filed her complaint on September 4, 2002. Two attorneys signed Hillman’s

complaint: Greg L. Spyridon, who was licensed to practice law in Mississippi, and Camilo

K. Salas III, who was licensed in Louisiana, but not in Mississippi. Hillman filed a “Notice

of Motion and Ex Parte Motion for Leave to Appear Pro Hac Vice and for Limited Practice

Admission” to allow Salas to represent Hillman in the case. Although the motion stated that

attached to the motion were both Salas’s affidavit and a certificate of the Louisiana State Bar

Association showing Salas was in good standing, these documents do not appear in the

record.1

¶4.    Weatherly filed an answer on October 7, 2002. On December 16, 2002, Weatherly

propounded his first set of interrogatories and document requests to Hillman, along with

medical records and earnings authorizations for Hillman to sign. On March 11, 2003,



       1
        It is undisputed that the circuit court never entered an order authorizing Salas’s
appearance pro hac vice. Nonetheless, all of the documents that were filed after the
complaint on Hillman’s behalf were signed by only Salas until December 17, 2007.


                                              2
Weatherly sent Hillman a good-faith letter requesting answers to discovery. Nothing

occurred until February 4, 2005, when the circuit clerk moved to dismiss the case for want

of prosecution, because there had been no action of record for the preceding twelve months.

See Miss. R. Civ. P. 41(d)(1).2

¶5.    On March 4, 2005, Hillman propounded discovery and noticed Weatherly’s

deposition. Weatherly served answers to Hillman’s first set of interrogatories on June 27,

2005. Weatherley sent two letters in June and July 2005, requesting that Hillman provide

answers to discovery before the parties’ depositions occurred on August 25, 2005. In a July

19, 2005, letter, Salas represented that they expected to respond to discovery before August

20, 2005. However, Hillman did not provide the responses before the parties’ depositions

occurred on August 25, 2005. In her deposition, Hillman stated that the car accident had

caused problems with her left arm, that her only prior hospitalizations were for gallbladder

surgery and rotovirus, that she had never experienced any broken bones, and that she had

experienced episodes of stumbling or falling after the car accident, but not before.

¶6.    On January 3, 2006, Weatherly again forwarded medical records and earnings

authorizations to Hillman for execution. On March 15, 2006, Weatherly served Hillman with




       2
        In all civil actions wherein there has been no action of record during the preceding
twelve months, the clerk of the court shall mail notice to the attorneys of record that such
case will be dismissed by the court for want of prosecution unless within thirty days
following said mailing, action of record is taken or an application in writing is made to the
court and good cause shown why it should be continued as a pending case. If action of
record is not taken or good cause is not shown, the court shall dismiss each such case
without prejudice.

Miss. R. Civ. P. 41(d)(1).

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supplemental discovery, including interrogatories, requests for the production of documents,

and medical and earnings authorizations. The supplemental discovery asked whether at any

time before the accident, Hillman had sustained bodily injury of any kind through an

accident, illness, sickness, disease, or surgical procedure, and requested all medical records

pertaining to such injury or illness. On May 16, 2006, Weatherly served a subpoena duces

tecum on State Farm Insurance Company, demanding its claim file pertaining to Hillman’s

automobile accident.

¶7.    A May 23, 2006, letter from Weatherley’s attorney to Salas confirmed an agreement

to postpone further discovery pending Hillman’s settlement demand. On May 23, 2006,

State Farm moved for a protective order, prompting Weatherly’s attorney to request on June

13, 2006, that Hillman either make a settlement demand or forward signed authorizations so

that discovery could proceed. Salas responded with a note promising he would send a

settlement demand by the end of the week. However, the record reflects no further

communication from Salas until October 2007.

¶8.    On May 25, 2006, State Farm’s attorney forwarded documents to Salas in response

to Weatherly’s subpoena, including a police report, a property damage estimate, medical

records, and Hillman’s sworn statement. On December 12, 2006, Weatherly’s attorney

communicated by letter that he had not yet received a settlement demand, and requested that

Salas either make a settlement demand, or respond to the outstanding discovery. On March

7, 2007, Weatherly’s attorney notified Salas by letter that, because he had not received a

settlement offer or discovery responses, he would file a motion to compel if discovery




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responses were not received by March 21, 2007. Although the letter included an enclosed

draft motion to compel, Weatherly never filed a motion to compel.

¶9.    On June 20, 2007, the clerk moved to dismiss for want of prosecution. On June 27,

2007, Hillman’s Mississippi counsel, Spyridon, moved to withdraw as counsel of record. On

July 2, 2007, the court granted the motion, and ordered Hillman and Salas to associate other

local counsel within thirty days. On July 5, 2007, Salas noticed the deposition of Hillman’s

neurologist, Dr. Bertha J. Blanchard, which was never taken. On July 24, 2007, the circuit

court granted Hillman’s motion for additional time to retain local counsel, and set the

deadline as August 16, 2007. On August 22, 2007, the court granted a second motion for

additional time, giving Hillman and Salas until August 31, 2007, to retain local counsel. On

September 26, 2007, Weatherly moved to dismiss for want of prosecution under Mississippi

Rule of Civil Procedure 41(b), or alternately, to strike all pleadings filed by Salas because

he never had been admitted pro hac vice.

¶10.   Having never retained local counsel, on October 2, 2007, Salas sent a letter to

Weatherly’s counsel enclosing Hillman’s medical and earnings authorizations, which were

signed and dated May 10, 2006. Salas stated that he had not forwarded these earlier due to

his understanding that the parties were engaged in settlement negotiations.

¶11.   In another October 2, 2007, letter, Salas enclosed the State Farm claim file and the

medical records from Dr. Blanchard, and promised to forward discovery responses and a

settlement demand. Dr. Blanchard’s records showed that Hillman had seen Dr. Blanchard

beginning December 22, 1999, and Dr. Blanchard had diagnosed Hillman with “probable

whiplash syndrome post motor vehicle accident.” However, Dr. Blanchard’s medical records


                                             5
also revealed that Hillman had undergone a prior left rotator cuff repair surgery, a 1983

surgery to remove a disc from her neck, and 1985 surgeries to repair injuries from a fall from

a ladder, including a broken right arm and a crush injury to her right ankle. Thus, Dr.

Blanchard’s records conflicted with Hillman’s deposition testimony that she had had no prior

hospitalizations other than for gallbladder surgery and rotovirus, and no prior broken bones.

¶12.   On October 24, 2007, Weatherley’s counsel communicated that the medical and

earnings authorizations dated May 10, 2006, now were too old to be accepted by the

providers, and he requested that Hillman execute new authorizations. On October 31, 2007,

Hillman produced updated medical authorizations. A January 14, 2008, affidavit of a

paralegal employed by Weatherly’s counsel detailed her unsuccessful attempts in 2005 and

2006 to contact the driver of the other automobile involved in the accident. The affidavit and

attached documentation also indicated that some of Hillman’s medical providers had stated

that her medical records had been destroyed due to the passage of time.

¶13.   Hillman finally retained Mississippi counsel on December 10, 2007, and she filed an

opposition to the motion to dismiss on December 17, 2007. An affidavit executed by Salas

accompanied the motion. In it, Salas swore that he had operated under the impression that

the motion to admit him pro hac vice had been granted, noting that the clerk had never

rejected any of his filings. He stated that he had been unable to retain local counsel. Salas

averred that he had made his first settlement demand on October 11, 2007.3 Salas’s affidavit

also contained legal arguments on why there were no grounds to strike his pleadings or to




       3
           That offer, in the amount of $250,000, was rejected.

                                               6
dismiss for failure to prosecute; he averred that the case was ready to be tried. On December

19, 2007, Salas moved to withdraw as counsel pro hac vice.

¶14.   After a hearing on February 29, 2008, a date more than five years after the filing of

the complaint, the circuit court dismissed the case with prejudice pursuant to Rule 41(b) for

failure to prosecute. The circuit court found that there was a clear record of delay on the part

of Hillman, that a lesser sanction than dismissal with prejudice was not in the interests of

justice, and that aggravating factors were present that supported dismissal with prejudice.

Also, the circuit court struck all pleadings filed by Salas, finding that Salas had never been

admitted pro hac vice to practice law in Mississippi.

                                STANDARD OF REVIEW

¶15.   This Court reviews a circuit court’s dismissal of an action for want of prosecution for

abuse of discretion. Hill v. Ramsey, 3 So. 3d 120, 122 (Miss. 2009) (citing Cucos, Inc. v.

McDaniel, 938 So. 2d 238, 240 (Miss. 2006)).

                                       DISCUSSION

¶16.   Hillman presents a single issue for the Court’s review:

       DID THE CIRCUIT COURT ABUSE ITS DISCRETION BY
       DISMISSING THIS CASE WITH PREJUDICE UNDER MISSISSIPPI
       RULE OF CIVIL PROCEDURE 41(B)?

¶17.   Mississippi Rule of Civil Procedure 41(b) states:

       (b) Involuntary dismissal: effect thereof. 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. After the plaintiff,
       in an action tried by the court without a jury, has completed the presentation
       of his evidence, the defendant, without waiving his right to offer evidence in
       the event the motion is not granted, may move for a dismissal on the ground
       that upon the facts and the law the plaintiff has shown no right to relief. The

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       court may then render judgment against the plaintiff or may decline to render
       any judgment until the close of all the evidence. If the court renders judgment
       on the merits against the plaintiff, the court may make findings as provided in
       Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a
       dismissal under this subdivision and any other dismissal not provided for in
       this rule, other than a dismissal for lack of jurisdiction, for improper venue,
       or for failure to join a party under Rule 19, operates as an adjudication upon
       the merits.

(Emphasis added.) Rule 41(b) embodies the tenet that “any court of law or equity may

exercise the power to dismiss for want of prosecution. This power, inherent to the courts, is

necessary as a means to ‘the orderly expedition of justice’ and ‘the court's control of its own

docket.’” Cucos, 938 So. 2d at 240 (citing Walker v. Parnell, 566 So. 2d 1213, 1216 (Miss.

1990) (quoting Watson v. Lillard, 493 So.2d 1277, 1278 (Miss. 1986))). However, the

remedy of 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 v. Jones, 572 So. 2d 371, 376 (Miss. 1990). “What

constitutes failure to prosecute is considered on a case-by-case basis.” Cox v. Cox, 976 So.

2d 869, 874 (Miss. 2008).

¶18.   This Court has adopted the standard promulgated by the Fifth Circuit for review of

dismissals with prejudice for failure to prosecute under Rule 41(b). 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)). There is no set time limit for the prosecution of an action; a

dismissal with prejudice 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

interests of justice. Id. at 180-81. The propriety of a dismissal with prejudice is bolstered



                                              8
by the presence of aggravating factors, including: (1)"the extent to which the plaintiff, as

distinguished from his counsel, was personally responsible for the delay,” (2) “the degree of

actual prejudice to the defendant,” and (3) “whether the delay was the result of intentional

conduct.” Am. Tel. & Tel. Co., 720 So. 2d at 181 (quoting Rogers, 669 F.2d at 320).

       A. Clear record of delay or contumacious conduct

¶19.   The circuit court found that there was a clear record of delay, because Hillman had

been dilatory in the prosecution of her case from the date the complaint was filed. The

circuit court noted that, after filing the complaint, Hillman’s first affirmative action was taken

in response to the clerk’s first motion to dismiss for want of prosecution. The court also

observed that, despite numerous requests from Weatherly, Hillman had failed to respond to

discovery or to timely provide medical authorizations. As a result, many of the medical

providers no longer had Hillman’s medical records because the providers were not obligated

to maintain the records for more than ten years.

¶20.   This Court finds that the more than five-year record in this case substantially supports

the circuit court’s finding of a clear record of delay. Two clerk’s motions to dismiss for want

of prosecution were filed in this case, each indicating that no action of record was taken for

at least the previous twelve months. Hillman filed her complaint on September 4, 2002, but

she did not initiate any action of record until after the clerk moved to dismiss the case on

February 4, 2005, for want of prosecution. Thus, there was no action of record for more than

two years, from December 16, 2002, when Weatherly filed discovery, until March 4, 2005,

when Hillman filed discovery and noticed Weatherly’s deposition. In affirming a dismissal




                                                9
without prejudice for failure to prosecute, this Court has found that nineteen months of

inactivity was “sufficient delay, standing alone, to warrant dismissal.” Hill, 3 So. 3d at 122.

¶21.   The record reflects that, throughout the course of the more than five-year period,

Hillman was dilatory in responding to discovery. Despite the circuit court rule that discovery

be completed within ninety days of the service of the answer by the defendant, Hillman did

not respond to Weatherly’s discovery requests for the entire three-year period prior to the

parties’ agreement to postpone discovery pending settlement. See Miss. Unif. Cir. & Cty.

R. 4.04(A). In fact, Hillman never responded to Weatherly’s interrogatories. Although

discovery was suspended pending settlement negotiations on May 23, 2005, Hillman made

no settlement demand until October 11, 2007, after Weatherly had filed the motion to

dismiss. “[T]he pendency of negotiations is not an excuse where the delay is unreasonably

long . . . or if it continues after it is apparent that the negotiations would not be fruitful.”

Cox, 976 So. 2d at 875. Although Hillman eventually provided responses to Weatherly’s

document requests, she did not do so until October 2, 2007, a date which was: (1) more than

six months after Weatherly threatened to file a motion to compel Hillman’s discovery

responses, (2) after the clerk filed a second clerk’s motion to dismiss in June 2007, and (3)

after Weatherly filed his motion to dismiss on September 26, 2007. We previously have

considered the fact that a plaintiff’s sole activity was reactionary in concluding that the

record supported a finding of a clear record of delay. Hill, 3 So. 2d at 122.

¶22.   Hillman admits that delay occurred, but she argues, without citation to precedent, that

Weatherly should have filed a motion to compel discovery responses. However, when

assessing the propriety of a Rule 41(b) dismissal, the Court consistently has applied the test

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enunciated in American Telephone and Telegraph Co. Am. Tel. & Tel. Co., 720 So. 2d at

181; see Hill, 3 So. 3d at 122; Wilson v. Nance, 4 So. 3d 336, 340-346 (Miss. 2009); Cox,

976 So. 2d at 874-880; Miss. Dep't of Human Servs. v. Guidry, 830 So. 2d 628, 633-34

(Miss. 2002); Hoffman v. Paracelsus Health Care Corp., 752 So. 2d 1030, 1033-1035

(Miss. 1999). This test focuses on the plaintiff’s conduct, not on the defendant’s efforts to

prod a dilatory plaintiff into action. We hold that the record substantially supported the

circuit court’s finding of a clear record of delay.

       B. Lesser sanctions

¶23.   This Court has held that a case should be dismissed with prejudice under Rule 41(b)

only if lesser sanctions are inadequate. 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.’” Miss. Dep’t of

Human Servs., 830 So. 2d at 633 (quoting Wallace, 572 So. 2d at 377). “Where there is no

indication in the record that the lower court considered any alternative sanctions to expedite

the proceedings, appellate courts are less likely to uphold a Rule 41(b) dismissal.” Hoffman,

752 So. 2d at 1035 (citation omitted); Wilson, 4 So. 3d at 343.

¶24.   The circuit court explicitly considered lesser sanctions, including fines, costs, or

damages against Hillman or her counsel, attorney disciplinary measures, conditional

dismissal, dismissal without prejudice, or explicit warnings. The circuit court found that

Weatherly would be prejudiced if the matter were allowed to proceed, due to the obstruction

of discovery by Hillman and Salas and the resultant unavailability and destruction of




                                              11
necessary medical records. Therefore, the circuit court determined that imposing a lesser

sanction than dismissal with prejudice would not best serve the interests of justice.

¶25.   We find that the record supported the circuit court’s determination. Evidence showed

that Hillman obstructed discovery, because she was not truthful about her medical history at

her deposition, which prejudiced Weatherly because it thwarted his timely acquisition of

Hillman’s medical records and his ability to identify and depose her treating physicians.

And, Salas’s continued deflection of Weatherly’s good-faith written requests for Hillman’s

discovery responses obstructed discovery. Although Hillman argues that the available

medical records produced in October 2007 provided Weatherly with ample information with

which to defend the suit, it is evident that the complete medical records of Hillman’s pre-

existing conditions were unobtainable due to Hillman and Salas’s obstructive and dilatory

conduct. Also, Weatherly was prejudiced because no witnesses to the car accident were

available. “The unavailability of witnesses who could have provided valuable testimony may

prejudice a defendant.” Cox, 976 So. 2d at 877. This Court has affirmed a dismissal with

prejudice when lesser sanctions could not cure the prejudice to a defendant caused by the

delay. Id. at 876. Accordingly, we find that the circuit court did not abuse its discretion in

concluding that dismissal with prejudice was required in the best interests of justice,

especially in light of the evident prejudice to Weatherly.

       C. Aggravating factors

¶26.   The circuit court also found that aggravating factors were present that bolstered a

dismissal with prejudice, citing the following evidence: (1) the whereabouts of key witnesses

were unknown due to the passage of more than eleven years since the underlying car


                                             12
accident; (2) several of Hillman’s medical providers had advised Weatherly that the

requested records had been expunged, including those of Hillman’s primary-care physician

immediately following the accident; (3) Hillman’s pre-accident medical records were no

longer available, which would hamper Weatherly’s ability to determine if she had suffered

from any pre-existing conditions; (4) during Hillman’s deposition, she failed to disclose prior

significant medical and surgical history, thus implicating herself in the spoliation of

evidence; (5) Hillman failed to respond to Weatherly’s discovery despite Weatherly’s

numerous good-faith letters; (6) neither Hillman nor Salas provided a reasonable explanation

for the delay; and (7) dismissal was warranted because Salas failed to comply with the court

order to retain Mississippi counsel, and because all the pleadings Salas filed should be

stricken because he was never admitted to practice in Mississippi courts.

¶27.   The aggravating factors to be considered include: (1) "the extent to which the plaintiff,

as distinguished from his counsel, was personally responsible for the delay,” (2) “the degree

of actual prejudice to the defendant,” and (3) “whether the delay was the result of intentional

conduct.” Am. Tel. & Tel. Co., 720 So. 2d at 181 (quoting Rogers, 669 F.2d at 320). The

facts identified by the circuit court strongly implicate two of the three aggravating factors.

              1. Plaintiff’s personal responsibility for the delay

¶28.   Hillman argues that there was no evidence that she was personally responsible for the

delay, which she attributes solely to Salas’s malfeasance. However, the record amply

supports the circuit court’s finding that Hillman was personally responsible for spoliation of

the evidence, because she did not disclose her prior medical history at her deposition, which

prevented Weatherly from acquiring Hillman’s medical records before their destruction.


                                              13
This finding indicates that Hillman bore some personal responsibility for obstructing

discovery. A plaintiff’s willful and prejudicial failure to disclose pre-existing conditions at

her deposition has been held to support a dismissal under Rule 37 as a sanction for discovery

violations. Scoggins v. Ellzey Beverages, Inc., 743 So. 2d 990, 997 (Miss. 1999). Certainly,

the record reflects that Hillman had some degree of personal responsibility for the delay in

prosecution.

               2. Degree of actual prejudice to the defendant

¶29.   The record strongly supports the circuit court’s finding that Weatherly would suffer

actual prejudice if this case were permitted to go to trial. The underlying car accident

occurred in 1996, eleven years before Weatherly filed the motion to dismiss. Due to the

delay, medical records from the physician who treated Hillman immediately following the

accident had been destroyed, as had much of the medical history pertaining to Hillman’s pre-

existing medical conditions. Also, Weatherly was unable to locate the key witness to the car

accident. These deficiencies in the evidence caused by the delay substantially supported the

circuit court’s decision that Weatherly was actually prejudiced by the delay.

               3. Whether the delay was the result of intentional conduct

¶30.   Weatherly argues that the delay was the result of intentional conduct, because Hillman

never provided any reason for the delay and because Salas never was admitted pro hac vice.

However, the circuit court made no specific finding that Hillman’s dilatory conduct was

intentional. This Court perceives nothing in the record that suggests the conduct identified

by Weatherly was intentional rather than negligent, although we note that Hillman’s

dishonesty at her deposition indicates intention. Nonetheless, as discussed above, the


                                              14
propriety of the dismissal with prejudice was supported by the presence of the two

aggravating factors found by the circuit court.

                                       CONCLUSION

¶31.   We hold that the circuit court was within its discretion in finding that there was a clear

record of delay, that the interests of justice required no lesser sanction than dismissal with

prejudice, and that aggravating factors were present in the form of Hillman’s personal

responsibility for the delay and actual prejudice to Weatherly. Therefore, we hold that the

trial court did not abuse its discretion by dismissing Hillman’s complaint with prejudice

under Rule 41(b) for failure to prosecute.

¶32.   AFFIRMED.

    WALLER, C.J., CARLSON AND GRAVES, P.JJ., RANDOLPH, LAMAR,
KITCHENS AND PIERCE, JJ., CONCUR. DICKINSON, J., NOT PARTICIPATING.




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