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Avent v. Miss. Power & Light Co.
OPINION TEXT STARTS HERE
Dana J. Swan, Clarksdale, attorney for appellant.
John H. Dunbar, Kate Mauldin Embry, Oxford, attorneys for appellee.
EN BANC.
GRIFFIS, P.J., for the Court:
¶ 1. This case considers whether the circuit court was in error to dismiss Glen Avent's complaint against Entergy Mississippi, Inc. for failure to prosecute under Mississippi Rule of Civil Procedure 42(b), or to grant summary judgment in favor of Sheraton Tunica Corporation under Mississippi Rule of Civil Procedure 56. We find no error and affirm.
¶ 2. Avent was employed by Andy Bland Construction Company. On July 3, 1994, Avent was working at a construction site in Tunica County, Mississippi. He operated a man-lift that became stuck in wet sand. There was an effort to free the lift and pull it out of the sand. The lift came into contact with an overhead electrical line. As a result, Avent was injured.
¶ 3. Sheraton owned the property that was the construction work site. Sheraton contracted with W.G. Yates and Son Construction Co., as the general contractor. Entergy had installed the electrical line. Andy Bland was a subcontractor of Yates.
¶ 4. On November 8, 1996, Avent filed a lawsuit. The complaint named several defendants, including Mississippi Power & Light (now known as Entergy Mississippi, Inc.) Yates, Sheraton, and several John Does. After the defendants were served, they responded to the complaint, and the parties engaged in discovery.
¶ 5. Sheraton filed a motion for summary judgment on May 21, 1997. Avent promptly responded to Sheraton's motion.
¶ 6. The circuit court entered an “Agreed Scheduling Order” on April 18, 1997, requiring all discovery completed by August 30, 1997; plaintiff's experts to be designated by June 15, 1997; defendant's experts by July 30, 1997; and all motions filed by September 30, 1997. On August 28, 1997, the circuit court entered an “Agreed Amended Scheduling Order,” requiring all discovery completed by November 30, 1997; plaintiff's experts designated by August 30, 1997; defendant's experts by September 30, 1997; and all motions filed by December 30, 1997. On November 13, 1997, the circuit court entered another “Agreed Amended Scheduling Order,” requiring all discovery completed by March 30, 1998; plaintiff's experts designated by December 30, 1997; defendant's experts designated by January 30, 1998; and all motions filed by April 30, 1998.
¶ 7. Yates filed a motion for summary judgment on May 1, 1998. After the circuit court heard the summary-judgment motions, the court granted Sheraton's motion, which was filed on May 21, 1997, and dismissed Sheraton as a party on October 6, 1998. A week later, the circuit court granted Yates's motion for summary judgment and dismissed Yates as a party.
¶ 8. Several filings were entered on the docket from the time of the final judgment through August 10, 1999, when the clerk filed a letter from Entergy's counsel that gave notice that the name of his law firm had changed. None of the filings were significant.
¶ 9. For almost six years, according to the clerk's docket, this case was dormant.1 The clerk's docket sheet does not indicate that any further pleadings were filed or action taken until February 14, 2005, when the plaintiff's attorney filed a designation of experts.
¶ 10. Almost another year passed with no action on this case. On January 11, 2006, Avent filed a supplemental response to Entergy's interrogatories. After this, the docket indicates the parties' filings as follows:
+-----------------------------------------------------------------------------+ ¦March 29, 2006: ¦Avent mailed a letter to Entergy, investigating whether ¦ ¦ ¦the case could be disposed of through mediation. ¦ +------------------+----------------------------------------------------------¦ ¦ ¦ ¦ +------------------+----------------------------------------------------------¦ ¦April 5, 2006: ¦Entergy responded by mail to Avent's March letter. ¦ +------------------+----------------------------------------------------------¦ ¦ ¦ ¦ +------------------+----------------------------------------------------------¦ ¦April 10, 2006: ¦Entergy sent a follow-up letter to Avent regarding ¦ ¦ ¦mediation. ¦ +------------------+----------------------------------------------------------¦ ¦ ¦ ¦ +------------------+----------------------------------------------------------¦ ¦April 12, 2006: ¦Avent set mediation for May 30, 2006. ¦ +------------------+----------------------------------------------------------¦ ¦ ¦ ¦ +------------------+----------------------------------------------------------¦ ¦ ¦Entergy confirmed mediation dates, but questioned the ¦ ¦April 12, 2006: ¦value of mediation due to the length of time that the case¦ ¦ ¦had been dormant. ¦ +------------------+----------------------------------------------------------¦ ¦ ¦ ¦ +------------------+----------------------------------------------------------¦ ¦April 18, 2006: ¦Entergy filed a notice of service of its third set of ¦ ¦ ¦interrogatories. ¦ +------------------+----------------------------------------------------------¦ ¦ ¦ ¦ +------------------+----------------------------------------------------------¦ ¦ ¦Entergy sent a letter to Avent cancelling mediation, ¦ ¦April 25, 2006: ¦requesting a new deposition, and expressing concern about ¦ ¦ ¦the likelihood of finding crucial witnesses given the age ¦ ¦ ¦of the case. ¦ +------------------+----------------------------------------------------------¦ ¦ ¦ ¦ +------------------+----------------------------------------------------------¦ ¦May 9, 2006: ¦Avent sent Entergy a letter with potential deposition ¦ ¦ ¦dates. ¦ +------------------+----------------------------------------------------------¦ ¦ ¦ ¦ +------------------+----------------------------------------------------------¦ ¦ ¦Entergy filed its motion to dismiss based on want of ¦ ¦June 6, 2006: ¦prosecution; at the same time, Entergy filed an affidavit ¦ ¦ ¦explaining its inability to locate witnesses. ¦ +------------------+----------------------------------------------------------¦ ¦ ¦ ¦ +------------------+----------------------------------------------------------¦ ¦February 9, 2009: ¦Avent filed a motion for a pretrial conference. ¦ +------------------+----------------------------------------------------------¦ ¦ ¦ ¦ +------------------+----------------------------------------------------------¦ ¦February 10, 2009:¦Entergy filed a response to Avent's pretrial-conference ¦ ¦ ¦motion. ¦ +------------------+----------------------------------------------------------¦ ¦ ¦ ¦ +------------------+----------------------------------------------------------¦ ¦May 26, 2009: ¦Entergy filed a supplemental motion to dismiss. ¦ +------------------+----------------------------------------------------------¦ ¦ ¦ ¦ +------------------+----------------------------------------------------------¦ ¦September 23, ¦Avent sent Entergy a proposed pretrial statement. ¦ ¦2009: ¦ ¦ +------------------+----------------------------------------------------------¦ ¦ ¦ ¦ +------------------+----------------------------------------------------------¦ ¦February 18, 2010:¦Entergy filed a notice of hearing on its motion to ¦ ¦ ¦dismiss. ¦ +------------------+----------------------------------------------------------¦ ¦ ¦ ¦ +------------------+----------------------------------------------------------¦ ¦March 15, 2010: ¦Entergy supplemented its motion to dismiss, detailing its ¦ ¦ ¦inability to locate certain witnesses. ¦ +------------------+----------------------------------------------------------¦ ¦ ¦ ¦ +------------------+----------------------------------------------------------¦ ¦April 30, 2010: ¦The circuit court dismissed Entergy from Avent's lawsuit. ¦...
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