David Tisdale and Teresa Tisdale v. South Central Regional Medical Center

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2023-CA-00231-COA

DAVID TISDALE AND TERESA TISDALE APPELLANTS

v.

SOUTH CENTRAL REGIONAL MEDICAL APPELLEE
CENTER

DATE OF JUDGMENT: 03/15/2022
TRIAL JUDGE: HON. DAL WILLIAMSON
COURT FROM WHICH APPEALED: JONES COUNTY CIRCUIT COURT,
SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANTS: DOUGLAS LAMONT TYNES JR.
ATTORNEYS FOR APPELLEE: RICHARD O. BURSON
PEELER GRAYSON LACEY JR.
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
DISPOSITION: AFFIRMED - 10/29/2024
MOTION FOR REHEARING FILED:

EN BANC.

WESTBROOKS, J., FOR THE COURT:

¶1. David and Teresa Tisdale (the Tisdales) filed a medical malpractice suit against the

South Central Regional Medical Center (SCRMC) in the Jones County Circuit Court. The

circuit court dismissed the claim for failure to prosecute after finding an inexcusable delay

by the Tisdales. The Tisdales appeal this involuntary dismissal alleging that the circuit court

abused its discretion by analyzing a Rule 41(b) motion and failing to consider the clear

record of attempted prosecution. See M.R.C.P. 41(b). Alternatively, the Tisdales argue the

court should have reviewed the matter under Rule 37 for discovery sanctions. See M.R.C.P.

37. After a review of the record, we affirm the circuit court’s decision.
FACTS AND PROCEDURAL HISTORY

¶2. This appeal stems from the circuit court’s dismissal of the Tisdales’ medical

malpractice claims for failure to prosecute under Rule 41(b). The underlying medical facts

are not necessarily material to the issues before this Court; however, the timeline and

participants in the medical care at issue are relevant to our analysis. The Tisdales’ medical

negligence claims arose out of medical care provided to Mr. Tisdale in the SCRMC

emergency department on October 7, 2017, and October 13, 2017. Mr. Tisdale alleged that

Dr. Michael Larochelle and Dr. Mark Kelly, both of whom were emergency-medicine

physicians employed by SCRMC at the time, failed to diagnose liver masses during Mr.

Tisdale’s visits to the SCRMC emergency department. After leaving SCRMC on the

morning of October 13, 2017, Mr. Tisdale went to the emergency department at Merit Health

Wesley in Hattiesburg, and his liver masses were diagnosed later that morning. Mr. Tisdale

remained hospitalized at Merit Health Wesley until his discharge on October 25, 2017, and

was unable to work in gainful employment for several weeks. Teresa Tisdale, David

Tisdale’s wife, joined this suit seeking compensation for the value of the lost care and

services of her husband and the value of care and services provided to her husband during

this period of illness and recovery.

¶3. SCRMC denies any allegation that its employees breached the standard of care

applicable to Mr. Tisdale or proximately caused his alleged injuries. SCRMC’s position is

that at all times relevant, its agents, servants, and employees met or exceeded the standard

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of care applicable to Mr. Tisdale. Further, SCRMC alleges that an earlier diagnosis of Mr.

Tisdale’s liver masses while in the SCRMC emergency department would not have provided

him with a greater-than-50% chance of a substantially better outcome.

¶4. The complaint was timely filed within the statute of limitations by the Tisdales’ initial

attorney on the case, F.M. Turner, on March 28, 2019. SCRMC filed its answer on July 18,

2019. SCRMC propounded discovery on August 21, 2019. On March 13, 2020, the

President of the United States declared a national emergency due to the outbreak of

Coronavirus (COVID-19). On the same day, the Mississippi Supreme Court issued an

Emergency Administrative Order relating to COVID-19, urging courts to limit in-person

contact as much as possible but granting each judge the authority to determine the manner

in which necessary in-person proceedings were to be conducted. Emergency Administrative

Order, In re Emergency Order Related to Coronavirus (COVID-19) (“EAO”), No. 2020-AD-

00001-SCT, at 1-2 (Miss. Mar. 13, 2020). Another emergency order stated that “[a] case

involving an attorney or party who is ill or in a high-risk category shall be rescheduled.”

EAO-5, No. 2020-AD-00001-SCT, at 4 (Miss. Mar. 20, 2020).

¶5. Turner wrote a letter to the Tisdales on April 2, 2020, informing them that he would

be terminating his representation of them on July 31, 2020, but would be seeking new legal

representation for them. On August 26, 2020, Turner filed a formal motion to withdraw as

counsel, stating as the reason: “Movant is 69 years of age and has underlying health

conditions that place him at high risk for complications from Covid-19, the disease caused

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by the novel coronavirus co-SARS-2.” The circuit court granted this motion to withdraw on

August 28, 2020.

¶6. Robert Williamson entered his appearance for the Tisdales on October 12, 2020,

followed by Douglas Tynes’ also filing an entry of appearance on October 16, 2020. The

next action in this case was on April 29, 2021, when Williamson filed a “Notice of Change

of Address.” After not receiving any response to SCRMC’s “Interrogatories and Requests

for Production of Documents” that was filed on August 21, 2019, almost two years later on

August 5, 2021, SCRMC filed its motion to dismiss for failure to prosecute. On August 13,

2021, the Tisdales finally filed a notice of service of their responses to the interrogatories and

requests for production. On August 16, 2021, the Tisdales filed their response in opposition

to the motion to dismiss. On March 15, 2022, the circuit court granted SCRMC’s motion to

dismiss for failure to prosecute after finding that there was “a clear record of delay by the

Plaintiffs.” On March 25, 2022, the Tisdales filed a motion to alter or amend the judgment.

The hearing for this motion was initially scheduled for September 19, 2022, but was

rescheduled for the circuit court’s next available hearing date, which was January 17, 2023.

After the hearing, on January 31, 2023, the circuit court entered its order denying the

Tisdales’ motion.

STANDARD OF REVIEW

¶7. We will reverse “a trial court’s dismissal for failure to prosecute pursuant to Rule

41(b) . . . only if [we] find[] the trial court abused its discretion.” Leasy v. SW Gaming LLC,

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335 So. 3d 555, 557 (¶6) (Miss. 2022). “The reviewing court should not reverse a

discretionary finding by the lower court unless it comes to a definite and firm conviction that

the court below committed a clear error of judgment in the conclusion it reached upon

weighing of relevant factors.” Id. at 558 (¶6) (internal quotation mark omitted). In particular,

“[a] finding of abuse of discretion absent a definite and firm identification of clear error

violates time-honored standard-of-review principles.” Id. (internal quotation mark omitted).

In applying “the applicable abuse-of-discretion standard of review,” this Court may not

“reweigh[] the evidence [or] substitut[e] its judgment for that of the trial court.” Id. at 560

(¶13). Questions of law are reviewed de novo. Stephens v. Equitable Life Assur. Soc’y of

U.S., 850 So. 2d 78, 82 (¶10) (Miss. 2003).

DISCUSSION

I. Rule 37

¶8. SCRMC filed a motion to dismiss for failure to prosecute pursuant to Rule 41 of the

Mississippi Rules of Civil Procedure. The Tisdales argue that the circuit court should have

instead applied Rule 37 to the matter. They allege, “[T]he record clearly shows that there

were actions taken by the Tisdales,” and the court failed to consider their attempts to

prosecute the case.

¶9. The Tisdales allege that their failure to answer SCRMC’s interrogatories and requests

for production of documents was a discovery dispute, not grounds for dismissal. Rule 37(a)

of Mississippi Rules of Civil Procedure states:

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A party, upon reasonable notice to other parties and all persons affected
thereby, may apply for an order compelling discovery. The motion must
include a certification that the movant has in good faith conferred or attempted
to confer with the person or party failing to make discovery in an effort to
obtain it without court action.

M.R.C.P. 37(a) (emphasis added). At trial, the Tisdales argued that SCRMC should have

contacted them to seek responses for discovery. However, our supreme court has held in

instances when “[the defendant] did not file a motion to compel [the plaintiff’s] responses

to its outstanding discovery does not weigh in [the plaintiff’s] favor, as the test regarding a

clear record of delay focuses on a plaintiff’s conduct, not on the defendant’s efforts to prod

a dilatory plaintiff into action.” Manning v. King’s Daughters Med. Ctr., 138 So. 3d 109,

116 (¶21) (Miss. 2014). According to Rule 37, SCRMC could have applied, but was not

required to, for an order compelling discovery from the Tisdales because the determination

of delay is based on the plaintiff’s conduct, not the efforts of the defendant to get the

plaintiffs to respond. Thus, the circuit court correctly applied Rule 41 pursuant to SCRMC’s

motion to dismiss.

II. Rule 41

¶10. Rule 41(b) of the Mississippi Rules of Civil Procedure states that “[f]or 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). Our supreme

court has held that a Rule 41(b) dismissal may be upheld “when there is: (1) a record of

dilatory or contumacious conduct by the plaintiff; and (2) a finding by this Court that lesser

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sanctions would not serve the interests of justice. Additional ‘aggravating factors’ or actual

prejudice may bolster the case for dismissal, but are not requirements.” Holder v. Orange

Grove Med. Specs. P.A., 54 So. 3d 192, 197 (¶18) (Miss. 2010).

A. Clear Record of Delay

¶11. The first prong for a Rule 41(b) dismissal is that there must be a record of dilatory or

contumacious conduct by the plaintiff. However, our supreme court has held that “[w]hen

there is a clear record of delay, no showing of contumacious conduct is necessary,” and

“‘delay alone may suffice’ for a dismissal pursuant to Rule 41(b).” Id. at 199 (¶¶25-27). In

this case, the circuit court judge correctly found the Tisdales’ period of inactivity was a clear

record of delay.

¶12. In the order granting SCRMC’s motion to dismiss for failure to prosecute, the circuit

court stated that “the Plaintiffs have not taken any substantive action in this cause for over

two (2) years, since filing their Complaint on March 28, 2019,” and thus found “insufficient

justification for delay.” The Tisdales argue that there was not a clear record of delay and that

the court miscalculated the delay because the actions that were taken do not constitute what

the United States Court of Appeals for Fifth Circuit has held to be “significant periods of

total inactivity.” Morris v. Ocean Sys. Inc., 730 F.2d 248, 252 (5th Cir. 1984).

¶13. Our precedent holds “that motions to dismiss for failure to prosecute are considered

on a case-by-case basis.” Havard v. Sumrall, 250 So. 3d 1282, 1289 (¶22) (Miss. Ct. App.

2017) (citing Holder, 54 So. 3d at 197 (¶17)).

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¶14. In Holder, the defendant submitted an answer and defenses to the plaintiffs’ complaint

along with interrogatories and requests for production of documents approximately two

months after the complaint was filed. Holder, 54 So. 3d at 195 (¶6). After not receiving a

response to the discovery requests for approximately three months, the defendant sent

correspondence to the plaintiffs inquiring when responses would be completed. Id. at (¶8).

Almost three weeks later, the plaintiffs’ counsel provided the defendant with an

“Authorization to Disclose, Release and Furnish Protected Health Information” but still did

not respond to the discovery requests. Id. Two days later, the defendants’ counsel re-faxed

the first “inquiry about completion of discovery to plaintiffs’ counsel, and did so again

[almost two weeks later]. According to the defendants, each request was ignored.” Id. at 196

(¶9).

¶15. “Approximately one year later, . . . plaintiffs’ counsel sent a letter to defendants’

counsel requesting to take [a] deposition. Two days later, while still not having answered

the defendants’ discovery, plaintiffs’ counsel filed interrogatories and requests for production

of documents.” Id. at (¶10). Two days after the plaintiffs filed their discovery requests, “the

defendants filed a motion to dismiss for failure to prosecute, citing in part the plaintiffs’

failure to answer discovery.” Id. Approximately two weeks after the defendants filed a

motion to dismiss, the plaintiffs filed answers to the discovery requests that had been

propounded by the defendants over fifteen months earlier. Id. at (¶11). The trial court in that

case held that “the delays in responding to discovery and not pursuing the case as it should

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have been for this period of time is certainly sufficient for the [c]ourt to deem that the case

was not pursued properly; that it should be dismissed for failure to prosecute the case.” Id.

at (¶12). Accordingly, the supreme court affirmed the circuit court’s decision. Id. at (¶34).

¶16. In Manning, the supreme court affirmed the circuit court’s Rule 41(b) dismissal

following the plaintiff’s two-year delay in responding to discovery. Manning, 138 So. 3d at

119 (¶31). The supreme court observed that “the fact that [the defendant] did not file a

motion to compel [the plaintiff’s] [discovery] responses . . . does not weigh in [the plaintiff’s]

favor, as the test regarding a clear record of delay focuses on a plaintiff’s conduct, not on the

defendant’s efforts to prod a dilatory plaintiff into action.” Id. at 116 (¶21). The supreme

court ultimately held, “[O]ur rules and precedent make clear that a motion to compel is not

a prerequisite to a motion to dismiss when, as here, there is a total failure of a party to

participate in discovery.” Id. at 118 (¶30); see Hillman v. Weatherly, 14 So. 3d 721, 727

(¶22) (Miss. 2009) (rejecting plaintiff’s argument that dismissal was improper because the

defendant had not filed a motion to compel outstanding discovery and recognizing that

“when assessing the propriety of a Rule 41(b) dismissal . . . the test focuses on the plaintiff’s

conduct, not on the defendant’s efforts to prod a dilatory plaintiff into action”).

¶17. Similarly, the supreme court also recently reversed this Court’s decision and affirmed

a circuit court’s Rule 41(b) dismissal, finding that the plaintiff’s two-year delay in responding

to discovery constituted “an undeniably clear record of delay in prosecuting the case, which

alone is sufficient to warrant a dismissal.” Leasy v. SW Gaming LLC, 335 So. 3d 555, 559

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(¶11) (Miss. 2022).

¶18. In the case currently before this Court, the Tisdales argue that the circuit court erred

in finding a clear record of delay and miscalculated the delay, if any, by disregarding certain

activity in the case. The circuit court calculated the delay from March 28, 2019, when the

Tisdales filed their complaint, to August 13, 2021, when the Tisdales filed their notices of

service of responses to discovery requests. In the order granting the dismissal, the circuit

court stated that “the Plaintiffs have not taken any substantive action in this cause for over

two (2) years, since filing their Complaint on March 28, 2019,” and, thus, found “insufficient

justification for delay.”

¶19. The Tisdales’ initial attorney (Turner) sent the Tisdales a letter on April 2, 2020, after

the start of the pandemic, informing them he would be withdrawing his representation at the

end of July 2020 due to health concerns. Turner did not file a motion with the court to

withdraw his representation until August 26, 2020, leaving Turner responsible for the

Tisdales’ case in the circuit court for almost five months before he requested leave to

withdraw as counsel of record. Although Turner obtained new legal counsel for the Tisdales

during these five months, Turner did nothing during this time to advance the case in any way.

Evidence was later presented that Turner had made handwritten answers on the

interrogatories that had been propounded to the Tisdales, yet he did not return any of these

documents to SCRMC.

¶20. The Tisdales assert that the court ignored activity in the record that occurred on

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October 12, 2020; October 16, 2020; and April 29, 2021. The “activity” that the Tisdales

reference on these dates are the entries of appearance by both of the two new lawyers and the

Notice of Change of Address, which the Tisdales argue should have been considered by the

circuit court as advancements of the case. But as we have previously stated, in accord with

the advisory committee’s note to Rule 41, “an action of record has been characterized as one

that ‘advance[s] the case to judgment.’ Pleadings, discovery requests, and deposition notices

are ‘actions of record.’” Glass v. City of Gulfport, 271 So. 3d 602, 604 (¶10) (Miss. Ct. App.

2018) (citation omitted).

¶21. It could be argued that the entries of appearance by the new lawyers, Williamson and

Tynes, could be considered as advancements of the case because it is action taken by the

Tisdales to ensure that their case does not sit idly while changing counsel of record.

However, that would not be the case here because even after new counsel appeared, there

were six additional months of delay before Williamson filed the Notice of Change of

Address. Not including this notice, there was no activity from the Tisdales for a total of ten

months after the new lawyers took over the case. Therefore, neither the entries of appearance

nor the Notice of Change of Address should be considered when calculating the delay.

¶22. In Holder, the defendants reached out to the plaintiffs three times after propounding

discovery in attempt to receive a response. Holder, 54 So. 3d at 195-96 (¶¶8-10). The

plaintiffs continued to submit other documents to the defendants yet still failed to respond

to the discovery requests. Id. at 196 (¶10). In the current case, SCRMC reached out to the

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Tisdales twice inquiring when to expect a response to their discovery requests. Also,

Williamson and Tynes were not producing any additional documents to further the case as

the counsel did in Holder. The only documents filed during the calculated period of

inactivity were Williamson’s and Tynes’ entries of appearances when they first received the

case, and then approximately six months later, the Notice of Change of Address was filed.

As explained above, these activities did not amount to advancing the case toward judgment.

Therefore, we find that the circuit court did not miscalculate the delay.

¶23. The Tisdales did not attempt to respond to discovery requests until after SCRMC filed

a motion to dismiss for lack of prosecution. The circuit court stated in the order granting the

dismissal that “[t]he Plaintiffs’ action in finally responding to discovery was reactionary to

the Motion to Dismiss.” See Holder, 54 So. 3d at 198 (¶22) (observing that in assessing

whether a Rule 41(b) dismissal is warranted, a court may consider whether action taken by

the plaintiff was “reactionary” to a threat of dismissal “or whether the activity was an effort

to proceed in the litigation”). For these reasons, the circuit court found there was

“insufficient justification for the delay” in this case.

¶24. Further, the Tisdales assert that the COVID-19 pandemic caused an excusable delay

that the circuit court should have considered. The Tisdales filed their complaint in March

2019, and SCRMC filed its answer in July 2019. Again, on March 13, 2020, “the President

of the United States declared a national emergency due to the outbreak of [COVID-19].”

EAO, No. 2020-AD-00001-SCT, at 1 (Miss. Mar. 13, 2020). On the same day, the

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Mississippi Supreme Court issued its first Emergency Administrative Order. Id. At this

point the Tisdales had already accumulated a twelve-month period of no activity in their case.

¶25. Our supreme court “delineated ‘certain emergency actions’ and ‘guidelines’ to be

taken by ‘all the courts of the state’ in light of the COVID-19 pandemic.” Scott v.

UnitedHealthcare of Miss. Inc., 374 So. 3d 1270, 1273-74 (¶5) (Miss. Ct. App. 2023)

(quoting EAO, No. 2020-AD-00001-SCT, at 1 (Miss. Mar. 13, 2020)). Although the order

provided that “[c]ourts should consider the avoidance of any proceedings that involve

vulnerable persons or require witnesses or parties to travel from an infected area,” the order

also explicitly provided that “[i]n compliance with the Constitution, all state

courts—municipal, justice, county, chancery, circuit, and appellate courts—will remain open

for business to ensure courts fulfill their constitutional and statutory duties.” Id. Subsequent

EAOs issued by the supreme court relating to COVID-19 consistently reiterated that the

Mississippi courts were to “remain open and accessible.” Scott, 374 So. 3d at 1273-74 (¶5)

(citing EAO-27, No. 2020-AD-00001-SCT, at 1 (Miss. Jan. 27, 2022)).

¶26. Likewise, the supreme court’s order recognized “the trial courts’ discretionary

authority to control their general dockets as the individual judges saw fit. See, e.g., [EAO-

14], No. 2020-AD-00001-SCT, at 4 (¶3) (Miss. July 23, 2020).” Scott, 374 So. 3d at 1273-74

(¶5). To this end, the supreme court encouraged the use of “technologies, including

electronic filing, teleconferencing and videoconferencing” to ensure that court proceedings

remained ongoing. See, e.g., EAO-5, No. 2020-AD-00001-SCT, at 2 (¶1) (Miss. Mar. 20,

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2020).

¶27. In Scott, this Court affirmed a Rule 41(d) dismissal for failure to prosecute. In

reaching this determination, this Court rejected COVID-19 as an excuse for the delay at issue

in that case. Scott, 374 So. 3d at 1278-79 (¶¶34-38). We recognized, as we do here, that

throughout the pandemic, the courts were never closed, the practice of law continued, and

the supreme court, in its EAOs, recognized the various forms of communication available

to allow cases to progress, such as “technologies, including electronic filing,

teleconferencing, and videoconferencing.” Id. at 1279 n.9.

¶28. This Court acknowledges that these technologies were available to the Tisdales,

through counsel, to propound discovery on the Tisdales’ part, conduct depositions,

communicate with the circuit court via the Mississippi Electronic Courts System (MEC) or

SCRMC’s counsel if additional time was necessary to serve or respond to discovery, or

generally move their lawsuit forward. If COVID-19 became a problem for either attorney

or the Tisdales, a motion seeking a stay or other relief could have been filed via MEC, but

no activity in this regard took place.

¶29. The dissent believes that the two-year period of delay made an unfair decision by the

circuit court because of the effects of the pandemic. This Court is aware of the effects and

impacts of the pandemic. It was unprecedented and caused attorneys and courts to find

innovative ways to manage their practices and dockets, respectively. As a result, some courts

remained physically completely open and operable, while others handled cases more

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remotely. We surely have not put our heads in the sand where COVID-19 is concerned; also,

we do not believe that these effects were an excusable delay considering the totality of the

circumstances at hand.

¶30. The Tisdales’ first attorney, Turner, withdrew as counsel for the Tisdales due to an

underlying health condition that might have put him at risk during the pandemic. However,

discovery was propounded six months prior to the pandemic declared in March 2020. Turner

did not formally request the court’s permission to withdraw from the case until August 2020.

The record is devoid of any doctor’s excuse or records that could have substantiated Turner

not filing a motion sooner or propounding discovery — which did not require direct, in-

person contact. Furthermore, we cannot overlook the second set of attorneys, Williamson

and Tynes, who also did nothing to advance the case. Williamson and Tynes took on the case

in October 2020 yet did not file a response to discovery until August 2021 — eight days after

SCRMC moved to dismiss for lack of prosecution. Nothing in the record indicates the

Tisdales, at any point, could not have responded to discovery requests.

¶31. A similar issue arose in a recent case from this Court, and we held that the circuit

court did not abuse its discretion by dismissing a case because there was a clear record of

delay. Wren v. Zellers, 390 So. 3d 1011, 1017 (¶15) (Miss. Ct. App. 2024). Similarly, the

plaintiffs tried to argue that the effects of COVID-19 caused an excusable delay. The

plaintiffs filed a complaint alleging negligence and seeking damages against Zellers.

Discovery ensued with the Wrens propounding interrogatories and requests for production

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of documents to Zellers on February 1, 2019. Id. at 1013 (¶2). On February 21, 2019,

Zellers sent the same discovery requests to the plaintiffs. Id. In May 2019, Zellers filed a

motion to compel and noticed it for a hearing. Id. at (¶3). In August 2019, the Wrens filed

notice of their service of their responses to Zellers’s discovery requests, and as a result, the

hearing on the motion to compel was canceled. Id. At that time, the Wrens also filed a

designation of experts. Below are the remaining facts from the Wren opinion:

On May 4, 2021, the circuit court clerk filed a motion to dismiss the Wrens’
case “for want of prosecution pursuant to Rule 41(d)(1) of the Mississippi
Rules of Civil Procedure” because there had been no action on the record in
the preceding twelve months. On June 4, 2021, the Wrens filed a notice to
offer self-authenticating medical records “prepared by Flexworx, its
employees, physicians and nurses[.]” On January 3, 2022, the Wrens each filed
a notice to take a video deposition of one of their treating physicians, Dr.
Oakley Jordan, on January 24, 2022. However, on January 12, 2022, the Wrens
filed a re-notice to take Dr. Jordan’s video deposition on February 11, 2022.
The deposition was to occur in Memphis, Tennessee. On the day of the
scheduled deposition, the Wrens canceled it about “an hour and fifteen minutes
before” it was to start. According to the Wrens, the cancellation was necessary
because they learned that Tomekicia had been in a car wreck six months before
the instant accident, which would potentially affect the case. The record
contains communication between the Wrens and Zellers regarding the
cancellation of the expert deposition.

On July 21, 2022, Zellers filed a Rule 41(b) motion to dismiss the case for lack
of prosecution. He alleged that the Wrens had “shown a clear record of delay
in this action” . . . .

On January 18, 2023, the Wrens filed a response to Zellers’s previous motion
to dismiss and contended the case had no “extreme circumstances” that would
merit a dismissal of the case. On January 19, 2023, a hearing was held on the
motion to dismiss for lack of prosecution. There, the Wrens expounded on the
reasoning for the delay citing numerous obstacles such as the COVID-19
pandemic, changes with Zellers’s insurance companies, and motions being
filed for additional counsel on Zellers’s part.

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Id. at 1013-14 (¶¶3-5) (paragraph numbering omitted).

¶32. However, in that case we agreed with the circuit court that the COVID-19 pandemic

was an unpersuasive reason for the delay, and we reasoned that because “the circuit judge

was explicitly clear that she continued to have litigants appear in person and on Zoom” the

delay was inexcusable. Id. at 1016 (¶13). In Wren, this Court found that there were several

periods of time where the plaintiffs took no action in the case. Id. at (¶12). They

propounded discovery, responded to the discovery requests, and went on to file their

designation of experts (which was not included in the defense’s motion to compel). Id. at

1013 (¶3). While not properly pursued, the Wrens at least filed a notice to take a video

deposition before Zellers filed a motion to dismiss for lack of prosecution, and in that

instance we held that the trial court did not abuse its discretion and affirmed its decision to

dismiss the case. Id. at 1017 (¶15). Even though we held there was a clear record of delay

in Wren, as explained in the facts above, there was more activity taken by the plaintiffs in

that case compared to the case sub judice in which no activity was taken.

¶33. The Tisdales’ case fairly differs from Wren because the only actions taken by the

Tisdales from the time the complaint was filed in March 2019 to the time the motion to

dismiss was filed by SCRMC in August 2021 were Turner’s withdrawal as counsel,

Williamson’s and Tynes’ entries of appearance, and the notice of the change of address.

None of these actions necessarily advanced the case to judgment. In its order, the circuit

court stated:

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COVID is not a sufficient justification for Plaintiffs’ current counsel to delay
responding to Defendant’s discovery for another ten (10) months. Indeed, it
only took Plaintiffs’ counsel eight (8) days to file answers and responses after
the Defendant filed its Motion to Dismiss. And, as noted above, the Plaintiffs
still have filed no discovery of their own.

Moreover, the Tisdales even admitted in their motion to alter or amend the judgment that the

court was never actually closed.

¶34. Thus, we find that the pandemic did not keep the Tisdales from responding to

SCRMC’s interrogatories and requests for production that was served on August 21, 2019,

six months before the pandemic was declared.

¶35. The plaintiffs failed to provide any excusable reasons for the over twenty-four month

delay; therefore, we find that the circuit court did not abuse its discretion in granting the

motion to dismiss for lack of prosecution.

B. Lesser Sanctions

¶36. Although we find the trial court did not abuse its discretion, we will address whether

lesser sanctions would have better served the interests of justice. Lesser sanctions may

include “fines, costs, or damages against plaintiff or his counsel, attorney disciplinary

measures, conditional dismissal, dismissal without prejudice, and explicit warnings.” Cox

v. Cox, 976 So. 2d 869, 879 (¶24) (Miss. 2008) (internal quotation marks omitted). Our

supreme court “has never required a trial judge to enumerate each and every lesser available

sanction and in turn state why each does not apply.” Regan v. S. Cent. Reg’l Med. Ctr., 234

So. 3d 1242, 1247 (¶20) (Miss. 2017). The circuit court heard arguments regarding lesser-

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sanction proposals during the hearing on SCRMC’s motion to dismiss and addressed why

lesser sanctions would not be appropriate its order of dismissal. The circuit court stated that

given the lengthy delay, the only appropriate sanction was to dismiss the case with prejudice.

¶37. Other lesser sanctions proposed by the Tisdales’ counsel cannot restore faded

memories of fact-witnesses and busy medical professionals, who may have either retired or

relocated their practices out-of-state. See Hillman, 14 So. 3d at 728 (¶25) (“This Court has

affirmed a dismissal with prejudice when lesser sanctions could not cure the prejudice to a

defendant caused by the delay.”); see also, e.g., Palmer ex rel. Wrongful Death Beneficiaries

v. Clark Clinic Inc., 271 So. 3d 680, 684 (¶14) (Miss. Ct. App. 2018) (generally recognizing

that “[m]emories fade, and facts become incapable of being produced” and, thus, finding

even minimal delay can impact judicial proceedings in case in which the “underlying

medical-malpractice [case was] over four years old”); In re Est. of Brewer, 755 So. 2d 1108,

1114 (¶25) (Miss. Ct. App. 1999) (recognizing “it was . . . helpful that the wrongful death

claim be diligently pursued[;] . . . [o]therwise[,] . . . [w]itnesses could be lost or their

memories fade . . . [, and] [u]ngathered physical evidence could be destroyed or lost”).

¶38. Accordingly, the circuit court held that “any sanctions less than dismissal with

prejudice would not serve the interest of justice.” The issue is not whether we would have

made the same decision but only whether the circuit court abused its discretion. In this

instance, we do not find that the circuit court abused its discretion in making its decision,

therefore satisfying the second prong of dismissal under Rule 41(b).

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C. Aggravating Factors or Actual Prejudice

¶39. The final issue to address in a Rule 41 motion to dismiss is prejudice or the presence

of any aggravating factors. “The trial court may consider prejudice or the presence of an

aggravating factor, and these considerations may help to bolster or strengthen a defendant’s

case in support of dismissal. These considerations, however, are not a prerequisite to

dismissal under Rule 41(b).” Holder, 54 So. 3d at 199 (¶27) (emphasis added).

¶40. Actual prejudice is not a requirement for dismissal under Rule 41(b); however,

prejudice may be presumed from unreasonable delay. Id. at 199 (¶28) (citing Cox, 976 So.

2d at 879 (¶44)). “Actual prejudice may arise when, because of the delay, witnesses become

unavailable or the memories of witnesses fade.” Id. at 200 (¶30). Even when a defendant

fails to present evidence of witnesses’ fading memories, our supreme court has held that

“delay alone may result in presumed prejudice to the defendant.” Id.

¶41. In Leasy, the circuit court dismissed the plaintiff’s lawsuit with prejudice pursuant to

Rule 41(b) following a two-year delay in responding to the defendant’s discovery requests.

Leasy, 335 So. 3d at 557 (¶4). This Court reversed the dismissal, finding that the defendant

“failed to prove actual prejudice and could only speculate as to the possibility”; however, the

Mississippi Supreme Court granted certiorari and reversed our decision, affirming the circuit

court’s Rule 41(b) dismissal. Id. at 559-60 (¶¶11, 13), rev’g Leasy v. SW Gaming LLC, 364

So. 3d 706, 712 (¶22) (Miss. Ct. App. 2021). The supreme court summarized its reasoning

as follows:

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Given the length of delay, prejudice is presumed under Holder and our
precedent. Instead of presuming prejudice based on the length of delay as in
Holder or by affording the trial court deference in its finding of actual
prejudice, the Court of Appeals ignored the applicable abuse-of-discretion
standard of review and reweighed the evidence, substituting its judgment for
that of the trial court. As a result, the Court of Appeals’ opinion directly
conflicted with prior appellate decisions and must be reversed.

Id. at 560 (¶13).

¶42. In this instance, the circuit court judge stated in his order granting the dismissal that

the doctors employed at SCRMC at the time (almost four years ago) have faded memories.

Even though the Tisdales argue that SCRMC does not present any evidence “to make a

showing of actual faded memories,” the circuit court did not abuse its discretion in

determining that because of the time length, the amount of patients that have been seen in the

interim, and the healthcare providers who have changed jobs, relocated, or retired, the

memories of the witnesses have faded. Thus, even though SCRMC did not present evidence

of actual prejudice, the circuit court did not abuse its discretion by finding that actual

prejudice existed due to faded memories and, even more so, correctly finding that there was

a clear delay; therefore, prejudice may be presumed.

¶43. The presence of an aggravating factor is also not a requirement, but it may serve to

“bolster” or strengthen the case for a dismissal. Holder, 54 So. 3d at 200 (¶31). The

aggravating factors 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. Id.

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¶44. As our supreme court has pointed out, “[t]his Court has emphasized the presence of

delay or contumacious conduct drives the dismissal inquiry, not the presence of prejudice or

aggravating factors.” Regan, 234 So. 3d at 1246 (¶17). In short, the absence of an

aggravating factor does not defeat dismissal under Rule 41(b). Here, the circuit court found

a clear record of delay and that no lesser sanctions would suffice. As we discussed above,

we find no abuse of discretion in the circuit court’s Rule 41(b) dismissal based on these

factors. Because the presence of an aggravating factor is not a requirement, we find that the

lack of an explicit finding of an aggravating factor in this case does not constitute reversible

error.

CONCLUSION

¶45. The circuit court did not err by reviewing this motion to dismiss under Rule 41(b)

instead of Rule 37. Further, the circuit court did not miscalculate the delay, and the court

correctly found there was a clear delay by the Tisdales, with no activity occurring to advance

the case to judgment in over two years. The circuit court correctly reviewed possible lesser

sanctions and did not abuse its discretion by determining anything less than a dismissal of

the case would be unjust. Therefore, we find no abuse of discretion by the circuit court and

affirm the order of dismissal.

¶46. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., SMITH AND EMFINGER,
JJ., CONCUR. McDONALD, J., CONCURS IN PART AND DISSENTS IN PART
WITHOUT SEPARATE WRITTEN OPINION. LAWRENCE, J., DISSENTS WITH
SEPARATE WRITTEN OPINION, JOINED BY McCARTY, J.; McDONALD, J.,

22
JOINS IN PART. WEDDLE, J., NOT PARTICIPATING.

LAWRENCE, J., DISSENTING:

¶47. I respectfully disagree with the majority’s decision. The COVID-19 pandemic caused

unforeseen delays and complications within the judicial system. I am proud of the courts of

this state for remaining open and conducting business to the best of its ability commensurate

with the safety of personnel and parties. However, to act as if the COVID-19 pandemic did

not substantially affect lawyers and their law practice is akin to sticking our collective heads

in the sand. This Court has previously recognized that “[w]hile the court system across

Mississippi did remain open during the pandemic, . . . the pandemic certainly had a

substantial effect on lawyers’ ability to practice law.” Wren v. Zellers, 390 So. 3d 1011,

1016 (¶13) (Miss. Ct. App. 2024).

¶48. The state supreme court entered multiple emergency orders concerning safety

throughout the pandemic. On March 20, 2020, it was ordered that “[a] case involving an

attorney or party who is ill or in a high-risk category shall be rescheduled.” Emergency

Administrative Order-5, No. 2020-AD-00001-SCT, at 4 (Miss. Mar. 20, 2020). In August

2021, the supreme court issued an order containing the following:

Unfortunately, circumstances have precipitously deteriorated, especially
with respect to the Delta variant of COVID-19. . . . [T]he Delta variant is
much more contagious and spreading three times faster than other strains. As
of August 2, 2021, there were 1,574 new COVID-19 confirmed infections in
Mississippi. Two days later, on August 4, 2021, the number of new confirmed
infections had more than doubled to 3,164. . . . COVID-19-related
hospitalizations and ICU occupancy are rapidly rising to levels seen during the

23
worst days of the pandemic in Mississippi[.] . . . In exercising their
discretionary powers, individual judges are strongly encouraged to refer to the
guidance issued by the MSDH for preventing the spread of COVID-19 (e.g.,
recommendations on social distancing; personal-protective measures,
including face coverings; and capacity limitations for gatherings).

Emergency Administrative Order-21, No. 2021-AD-00001-SCT, at 1-2 (Miss. Aug. 5, 2021)

(emphasis added) (footnotes omitted). Then, in December of the same year, the supreme

court issued an emergency order stating:

Unfortunately, circumstances continue to deteriorate. In addition to the
Delta variant of COVID-19, our State now faces the Omicron variant,
which accounts for more than 60% of the new reported cases, according to
State Epidemiologist Dr. Paul Byers. . . . [I]ndividual judges have the
discretion to control their own dockets. In exercising their discretionary
powers, individual judges are strongly encouraged to refer to the guidance
issued by the MSDH for preventing the spread of COVID-19 (e.g.,
recommendations on social distancing; personal-protective measures,
including face coverings; and capacity limitations for gatherings).

Emergency Administrative Order-25, No. 2021-AD-00001, at 1-2 (Miss. Dec. 30, 2021)

(emphasis added).

¶49. In this case, the Tisdales’ attorney was sixty-nine years old and genuinely concerned

for his health, making it necessary for him to notify his clients of his decision to no longer

represent them. His concerns were legitimate, as referenced by the supreme court issuing

emergency orders. People were unquestionably dying.1 Society closed most doors for

1
There were 385,676 deaths attributed to COVID-19 in the United States in 2020.
Of those deaths, 91% had COVID-19 “listed as the underlying cause of death . . . . For the
remaining deaths, COVID-19 was listed as a contributing cause of death.” National Center
for Health Statistics, Provisional COVID-19 Mortality Surveillance (data as of October 10,
2024), https://www.cdc.gov/nchs/nvss/vsrr/COVID19/index.htm. In 2021, the number of

24
different periods of time. The Tisdales’ lawyer notified his clients on April 2, 2020,

indicating that due to his “age and the current circumstances[,]” it was time for him to “retire

from active litigation practice.” The trial court signed the order to withdraw on August 28,

2020, and allowed the Tisdales forty-five days to find another attorney. The forty-five-day

period allowed by the trial court ended in mid-October. In summary, at this point in time

from March 2020 to mid-October 2020, approximately 7½ months, COVID-19 was

recognized as a major societal health issue. The supreme court issued an emergency order

on March 20, 2020, and the trial court allowed an attorney to withdraw from further

representation due to health concerns from COVID-19. Yet, this seven-and-a-half-month

period was still used against the Tisdales as proof of clear delay.

¶50. The Tisdales’ new lawyers entered their appearances in the case on October 12, 2020,

and October 16, 2020. South Central filed a motion to dismiss for failure to prosecute on

August 5, 2021. The motion alleged a two-year window of time in which the Tisdales did

not prosecute their case. That window was defined from the time South Central sent

discovery requests on August 21, 2019, and the Tisdales answered on August 13, 2021. The

trial court held:

Upon review, the Court finds a clear record of delay by the Plaintiffs in this
case. The medical care at the center of this dispute occurred in October of

deaths rose to 463,267, with 90% of them listing COVID-19 as the underlying cause. Id.
In Mississippi alone, there were 4,466 deaths in 2020 and 5,082 deaths in 2021. National
Center for Health Statistics, COVID-19 Mortality by State (data as of Feb. 15, 2023),
https://www.cdc.gov/nchs/pressroom/sosmap/covid19_mortality_final/COVID19.htm.

25
2017. The Tisdales filed their Complaint against [South Central] on March 28,
2019, and South Central filed its Answer on July 18, 2019, and propounded its
first set of discovery on August 21, 2019. As stated above, prior to filing their
responses to discovery on August 13, 2021, and then responding to the Motion
to Dismiss herein on August 16, 2021, the [Tisdales] have not taken any
substantive action in this cause for over two (2) years, since filing their
Complaint on March 28, 2019 . . . the [Tisdales] have not provided and the
Court does not find a valid reason for the [Tisdales’] delay of ten (10) months
in responding to discovery[.]

(Emphasis added).

¶51. Between April 2020 and March 2022, the COVID-19 pandemic ebbed and flowed.

Some times were more dangerous than others. At least three different times—March 2020,

August 2021, and December 2021—Chief Justice Randolph of the Mississippi Supreme

Court recognized different outbreaks that produced deteriorating circumstances. Those

orders, while ensuring “open courts,” recognized the pandemic was causing serious concerns

and problems in the judicial system. During those dangerous times, lawyers’ lives and law

practices suffered the array of effects like all other members of society. But the trial court’s

order merely stated that “COVID [wa]s not a sufficient justification for [the Tisdales’]

current counsel to delay responding to [South Central]’s discovery for another ten (10)

months.”

¶52. During the ten-month delay stressed by the trial court, one of the emergency orders

was issued by the Chief Justice of the Mississippi Supreme Court on August 5, 2021, as cited

above. That order accounts exactly what we lived through during that time period. As we

thought COVID-19 was diminishing, a new variant would arise. The emergency order

26
recognized the Delta variant was causing conditions to deteriorate. Lawyers were people

living through these uncertainties like everyone else. Lawyers had more difficulties

communicating with clients, getting records, and completing simple, routine legal tasks than

before the pandemic. To be clear, I do not dispute the facts and dates in the majority’s or the

trial court’s opinions.2 However, I do take issue with the fact that the trial court failed to

properly consider the effects of COVID-19 during those dates and the pandemic’s effect on

lawyers’ everyday lives. There is certainly more to the equation of dismissing a complaint

active during the COVID-19 pandemic than just stating the courthouse doors were “open.”

¶53. This Court will reverse a decision in a failure-to-prosecute case “only if it finds the

trial court abused its discretion.” Leasy v. S.W. Gaming LLC, 335 So. 3d 555, 557 (¶6)

(Miss. 2022). “In a review for abuse of discretion, the appellate court will consider whether

the decision was one of those several reasonable ones which could have been made.” Id. at

(¶7) (citing Nunnery v. Nunnery, 195 So. 3d 747, 752 (Miss. 2016)). “A finding of abuse of

discretion absent a definite and firm identification of clear error violates time-honored

standard-of-review principles.” Id. Leasy went on to state:

When we say that the trial court has discretion in a matter, we imply that there
is a limited right to be wrong. At the very least the statement imports a view
that there are at least two different decisions that the trial court could have
made each of which on appeal must be affirmed. Indeed, if there are not at
least two possible affirmable decisions, by definition the trial court is without
discretion.

2
Nor do I condone delayed responses to discovery and non-compliance with the
Mississippi Rules of Civil Procedure.

27
Id. at 558 (¶7) (quoting Burkett v. Burkett, 537 So. 2d 443, 446 (Miss. 1989)).

¶54. Mississippi law favors a trial on the merits. As such, “[b]ecause 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. Specs. P.A., 54 So. 3d 192, 196 (¶17) (Miss. 2010) (quoting

Miss. Dep’t of Hum. Servs. v. Guidry, 830 So. 2d 628, 632 (¶13) (Miss. 2002)). “The mere

fact that delay occurs in the prosecution of a case is not sufficient to warrant dismissal for

want of prosecution.” Barry v. Reeves, 47 So. 3d 689, 694 (¶14) (Miss. 2010). “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.” Id. Further, under

the controlling decisions, “[t]here is no set time limit on the prosecution of an action once

it has been filed.” Am. Tel. & Tel. Co. v. Days Inn of Winona, 720 So. 2d 178, 180 (Miss.

1998) (citing Watson v. Lillard, 493 So. 2d 1277, 1279 (Miss. 1986)).

¶55. The majority cites a recent case decided by this Court, Wren v. Zellers, 390 So. 3d

1011 (Miss. Ct. App. 2024). The case before us is factually different from Wren, even

though the majority points out a couple of similarities. Moreover, I feel the distinguishable

facts between the two cases are too material to merit the same result. First, in Wren, the

attorney for the plaintiffs never filed a motion to withdraw from further representation due

to health concerns caused by the pandemic, as the Tisdales’ attorney did in this case. Second,

the court in Wren never entered an order allowing the attorney to withdraw or allowing time

for a new attorney to enter an appearance. Last—and most important—the court in Wren

28
actually considered the effects of the COVID-19 pandemic as part of the clear delay on the

part of the plaintiff in prosecuting the cause. Id. at 1014 (¶5). Here, despite being argued

by the Tisdales, the trial court did not consider whether the pandemic’s effects contributed

to the delay in prosecuting the cause. This remains true despite the Tisdales’ attorney filing

a motion to withdraw because of COVID-19, as well as the court’s authorizing that

withdrawal and granting additional time for a new attorney to make an appearance. As stated

previously, the trial court merely stated that “COVID [wa]s not a sufficient justification for

[the Tisdales’] current counsel to delay responding to [South Central]’s discovery for another

ten (10) months.” I think the trial court should have considered those factors surrounding the

COVID-19 pandemic before exercising its discretion to forever bar a litigant from the

courthouse doors and a trial on the merits.

¶56. In the end, this case came down to discovery not being answered until ten months after

the Tisdales’ new attorneys entered appearances. Yet those ten months occurred during a

very complicated time of serious social health concerns, causing untold and very difficult

considerations for lawyers practicing law. I think COVID-19 caused more problems within

the practice of law than the trial court considered when applying discretion in dismissing the

complaint. It was unfair to assign a two-year time period of “delay” to the Tisdales under the

circumstances discussed in this dissent. The court’s lack of consideration for the COVID-19

pandemic was an abuse of discretion, especially when it was alleged to have clearly caused

part of the delay. To be clear, if the trial court’s decision had reached the same conclusion

29
of dismissal after considering the pandemic and its effects on this case, I would agree with

that fact-finding if supported by the record. I take issue with the lack of consideration. The

record reflects the COVID-19 pandemic caused the original attorney to withdraw, not only

from this case, but to retire from the practice of law. The court allowed that withdrawal and

granted a period of time for the Tisdales to obtain the services of a new attorney. The new

attorneys alleged, in part, that COVID-19 problems contributed to the delay in prosecuting

this case. The orders from the Mississippi Supreme Court clearly proved COVID-19 was

causing serious health concerns and complicating considerations in the practice of law. The

failure to consider the COVID-19 pandemic’s effects on this case before the ultimate

sanction of dismissal was granted was, in my view, an abuse of discretion. Accordingly, I

would reverse the dismissal of the complaint and remand this case to the active trial docket.

McCARTY, J., JOINS THIS OPINION. McDONALD, J., JOINS THIS
OPINION IN PART.

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