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Tims v. City of Jackson8/6/2002
ted as a comment one way or the other on the propriety or impropriety of the contact. It is sufficient to say that as a result of counsel's action, it is clear that Henson was not beyond the reach of the City in a retrial of this matter.
. Thirdly, no evidence was adduced which indicates that the delay was intentional or due to contumacious conduct on the part of Tims himself or for that matter, on the part of Tims's counsel. While it may be true that counsel was content not to push for a retrial, it appears reasonably clear from the record that at least for part of the time that was just fine with the City.
. Finally, and perhaps most importantly, the record is clear that the trial judge did not consider a less drastic sanction. As the court found in American Tel. & Tel. Co., "the record in the present case fulfills neither of the requisite factors for dismissal under Rule 41(b). There is no clear record of delay or contumacious conduct on the part of the plaintiff and no finding that lesser sanctions would not have better served the ends of justice." American Tel. & Tel. Co., 720 So. 2d at 182 ( ). Therefore, we conclude as we must that the trial judge abused his discretion in dismissing this case.
. In light of our decision regarding the motion to dismiss, there is no need to discuss the motion for reconsideration. This case is reversed and remanded for further proceedings.
. THE JUDGMENT OF THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY IS REVERSED AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS, AND CHANDLER, JJ., CONCUR. BRANTLEY, J., DISSENTS WITHOUT SEPARATE OPINION.
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