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Tims v. City of Jackson8/6/2002
DATE OF TRIAL COURT JUDGMENT: 12/06/1999
NATURE OF THE CASE: CIVIL - TORTS - OTHER THAN PERSONAL INJURY AND PROPERTY DAMAGE
TRIAL COURT DISPOSITION: DISMISSED WITH PREJUDICE FOR FAILURE TO PROSECUTE
DISPOSITION: REVERSED AND REMANDED-08/06/2002
. Robert Tims appeals from an order rendered in the Hinds County Circuit Court which dismissed his case with prejudice due to failure to prosecute. In this appeal, Tims argues that the dismissal of his suit constituted an abuse of discretion and that the abuse continued with the denial of his motion for reconsideration because the trial judge failed to consider or properly consider the facts upon which the motion was brought.
FACTS
. On February 24, 1992, Robert Tims filed a complaint against Mike Henson, an officer of the Jackson Police Department, the City of Jackson Police Department, and an unknown person, collectively referred to hereinafter as "the City." In this complaint, Tims alleged that a vehicle driven by an unknown individual "suddenly and without warning, executed a left turn directly in front of him" and forced him into a ditch. He further alleged that Officer Mike Henson investigated the incident but failed to put the other driver's name on the police report. Also, the complaint alleged that Henson refused to give Tims the name of the party at fault, even after Tims made numerous attempts to ascertain the identity of the driver. Tims claimed that Henson's refusal to provide him with the identity of the other driver had caused him great hardship. In Tims's view, Henson's reckless and inadequate investigation of the incident constituted a breach of duty and that the Jackson Police Department, Henson's employer, was vicariously liable.
. The case went to trial on December 5, 1994, and ended in a hung jury. The matter was reset for trial for September 12, 1995. However, as a result of a motion for a continuance filed by Tims, the case was continued to March 25, 1996. On May 15, 1996, the trial judge signed another order which continued the case yet again. The order granting this continuance reflects that it was entered pursuant to a joint motion of the parties and ordered the case continued "until a later date." On September 13, 1999, the City filed a motion to dismiss, and on December 6, 1999, the case was dismissed with prejudice on the grounds set forth in the motion and as a stale case "for failure to prosecute and in the interest of judicial economy." On December 16, 1999, Tims's counsel filed a motion for reconsideration of the motion to dismiss. This motion was overruled June 27, 2000. It is from the denial of this motion that Tims prosecutes this appeal.
. Additional facts as may be necessary for the proper consideration and resolution of this appeal will be given during the discussion of the issues.
ANALYSIS AND DISCUSSION OF THE ISSUES
Abuse of Discretion
. The standard of review for a dismissal for failure to prosecute is abuse of discretion. Hoffman v. Paracelsus Health Care Corporation, 752 So. 2d 1030, 1034 ( ) (Miss. 1999). Because no time limits exist once a complaint has been filed, a dismissal for failure to prosecute will only be upheld in circumstances "where the record shows that a plaintiff is guilty of dilatory or contumacious conduct." Id. Moreover, dismissals for failure to prosecute should be executed reluctantly because "the law favors trial of issues on the merits." Id. This Court is mindful of the fact that "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 f
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