Rutland v. Burroughs

334 So.3d 469

Alisa RUTLAND, Appellant

v.James BURROUGHS, Factory Certified Mobile Homes, LLC, B&C Mobile Homes, LLC, Darrell Springer and Springer Trucking, LLC, Appellees

NO. 2020-CA-01100-COA

Court of Appeals of Mississippi.

February 15, 2022

ATTORNEYS FOR APPELLANT: GREGORY MALTA, JARED FRANK EVANS

ATTORNEYS FOR APPELLEES: JOHN STEPHEN GRAHAM, Ridgeland, BENJAMIN BLUE MORGAN, WILLIAM MATTHEW VINES, REEVE G. JACOBUS JR., Ridgeland

BEFORE WILSON, P.J., WESTBROOKS AND McDONALD, JJ.

WILSON, P.J., FOR THE COURT:

¶1. Alisa Rutland filed a malicious prosecution lawsuit against the defendants. Two years later, her attorney moved to withdraw from the case because he and Rutland had a difference of opinion as to how to proceed. Six months later, the circuit judge entered an order allowing the attorney to withdraw and granting Rutland "60 days to retain new counsel or proceed pro se." During that 60-day period, the defendants filed a motion for summary judgment. During the same 60-day period, Rutland did not retain new counsel, nor did she respond to the defendants’ motion. Rather, she only sent a letter to the circuit judge asking for more time to hire a new lawyer. After the 60-day period had expired, the circuit judge granted the defendants’ motion for summary judgment and denied Rutland's request for additional time. Rutland then retained new counsel and filed a combined motion for reconsideration and opposition to the defendants’ motion for summary judgment. The circuit judge denied Rutland's motion, and Rutland filed a notice of appeal.

¶2. On appeal, Rutland raises two issues. First, she argues that the defendants’ motion for summary judgment was procedurally "improper" because it was filed during a "stay on the proceedings." Second, she argues that the circuit judge should have granted her motion for reconsideration because the judge's prior order granting summary judgment was "an extreme and harsh sanction"—a "de facto default judgment/involuntary dismissal, ... dressed up as a grant of a [m]otion for [s]ummary [j]udgment." However, the proceedings were never "stayed," and there was nothing "improper" about the defendants’ motion for summary judgment. Furthermore, the circuit judge granted summary judgment because the defendants’ motion was properly supported and no response was filed—not as a "sanction." Therefore, we affirm the judgment of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶3. In 2010, the defendants¹ informed the district attorney for Jones County that they had provided Rutland with funds to purchase five mobile homes on their behalf and that Rutland had not provided the mobile homes and refused to return their money. The district attorney's office investigated the defendants’ allegations, and in February 2011, a Jones County grand jury indicted Rutland for five counts of false pretenses. See Miss. Code Ann. § 97-19-39 (Rev. 2020). Rutland entered into a pretrial diversion program under which she agreed to pay restitution and meet other terms and conditions. However, Rutland failed to comply with the conditions of her pretrial diversion order, and her case was returned to the active docket. In 2016, Rutland's case went to trial. At the close of the State's case-in-chief, the trial judge granted Rutland's motion for a directed verdict and dismissed all charges against her.

¶4. In August 2017, Rutland sued the defendants in circuit court. Her complaint included claims for, inter alia, malicious prosecution and intentional infliction of emotional distress.² On October 8, 2019, the parties attended a mediation. On October 11, 2019, Rutland's attorney filed a motion to withdraw from the case, stating that he and Rutland had "a difference of opinion as to how to proceed." On April 29, 2020, the circuit judge³ held a hearing on counsel's motion to withdraw. Rutland's counsel told the judge that Rutland had originally indicated that she would not oppose his motion but later refused to consent. Rutland admitted at the hearing that she had no real basis for opposing counsel's motion to withdraw. The judge asked Rutland how much time she would need to get a new attorney, and Rutland stated that she would need "60 or 90 days." The judge stated,

I'm going to give you 60 days in which to retain another attorney. But, Ms. Rutland, I can't stress to you enough how important it is that you do get an attorney ... and you understand the seriousness of that. And you're going to make every effort to do that within that length of time?

Rutland agreed. That day (April 29, 2020), the judge entered an order granting Rutland "60 days to retain new counsel or proceed pro se."

¶5. On May 18, 2020, the defendants filed a motion for summary judgment, arguing that Rutland could not succeed on her complaint for malicious prosecution because Burroughs and Springer had merely provided information to the district attorney and law enforcement, who then determined that Rutland should be prosecuted. The defendants relied on a number of exhibits, including an affidavit from an assistant district attorney (ADA) who prosecuted Rutland. The ADA stated that he relied on information obtained from persons other than the defendants and continued to believe that Rutland had committed a crime.

¶6. On June 23, 2020, Rutland sent the circuit judge a letter "respectfully requesting the court to grant [her] more time to find representation."⁴ She stated that she had "spoken with several attorneys who [were] interested in representing [her] but they want[ed] to review the file first." She alleged that her prior attorney would not turn over her file because she had not paid his final invoice. Rutland claimed that the attorney's charges were improper and that she could not afford to pay them. In support of her claim, Rutland attached an email exchange with a paralegal who worked for her prior attorney.

¶7. The defendants filed a response to Rutland's request for more time, arguing that she had been given ample time to hire new counsel because she had known for over eight months—i.e., since her original attorney moved to withdraw in October 2019—that she needed new counsel. Therefore, they argued that no further delay was warranted.

¶8. In a letter order dated July 1, 2020, and entered on July 7, 2020, the circuit judge denied Rutland's request for additional time. The judge found that the request should be denied because it was an improper ex parte communication to the judge and was not filed with the clerk. The judge further stated "in all likelihood" he would have denied Rutland's request "even if it had been a properly filed [m]otion" because Rutland had indicated at the prior hearing that 60 days would be enough time to hire a new attorney. In addition, the judge found that the defendants’ motion for summary judgment should be granted in full, and he directed counsel to provide him with an order consistent with his ruling.

¶9. In a formal written order signed on July 10, 2020, and entered on July 31, 2020, the circuit judge denied Rutland's request for additional time, finding that there was "no need for any further extension," and granted the defendants’ motion for summary judgment in full. A separate final judgment of dismissal with prejudice was also signed by the judge on July 10, 2020, and entered on July 31, 2020.

¶10. On July 17, 2020—after the judge had signed the formal order granting summary judgment and final judgment but before they were entered—a new attorney entered an appearance for Rutland and filed a combined motion for reconsideration and opposition to the defendants’ motion for summary judgment.⁵ In response to Rutland's motion for reconsideration, the defendants argued that Rutland failed to establish any ground for relief under Rule 59 or Rule 60 of the Mississippi Rules of Civil Procedure.

¶11. At a subsequent hearing on Rutland's motion for reconsideration, counsel for Rutland argued that the defendants’ motion for summary judgment was procedurally improper because it was filed while the case was "stayed." Specifically, counsel argued that the judge's April 29 order granting Rutland 60 days to hire a new attorney or proceed pro se operated as a "stay." Therefore, counsel argued that the defendants should not have filed any dispositive motion prior to June 29,⁶ and then Rutland should have had ten days to file a response. See UCRCCC 4.02(2) (providing that a response to a motion for summary judgment shall be filed within ten days).⁷

¶12. In response, the defendants argued that the judge's April 29 order "did not include a stay." They also reiterated that Rutland's motion failed to identify any ground for relief under Rule 59 or Rule 60. Finally, they pointed out that even accepting Rutland's argument that their motion for summary judgment should not have been filed until June 29, Rutland still failed to file a response within ten days thereafter.

¶13. In rebuttal, Rutland's counsel admitted that Rutland had not filed a response to the defendants’ motion for summary judgment within ten days of June 29. Counsel stated that he was not retained until July 8 or 9 and then timely filed a motion for reconsideration within ten days of the entry of the judgment. See M.R.C.P. 59(e) ("A motion to alter or amend the judgment shall be filed not later than ten days after entry of the judgment.").

¶14. The judge took the matter under advisement and subsequently entered an order denying Rutland's motion for reconsideration. The judge stated that he had considered all of the parties’ written and oral arguments and found that Rutland's motion lacked merit and should be denied. Rutland filed a timely notice of appeal.

¶15. On appeal, Rutland argues that the defendants’ motion for summary judgment was "improper" because it was filed during a "stay on the proceedings." She also argues that the circuit judge should have granted her motion for reconsideration because the judge's prior order granting summary judgment was "an extreme and harsh sanction"—a "de...