McComas v. Ross

CURETON, A.J.:

This is an appeal from the trial court’s dismissal of McComas’ case for failure to prosecute. We reverse.

FACTS

Sabrina McComas filed this negligence action against Chris Ross on November 13, 2002 for medical bills, lost wages, physical injuries, and other damages, incurred as a proximate result of her injuries from a car accident. McComas’ case was scheduled as number 15 on the trial docket for the week beginning September 7, 20041, and someone from her counsel’s office attended the roster meeting that morning. According to McComas’ counsel, he contacted the court on Wednesday morning to determine the status of McComas’ case. Shortly thereafter, at approximately 10:00 a.m., McComas checked in with her counsel in regards to the status of her case. Counsel informed her that he had received no word from the court and to not “worry about it until tomorrow.” He also reminded her to check back with his office in the afternoon. McComas’ counsel indicated to the court that around 10:30 a.m. the clerk of court sent a message through the internet instant messaging system, notifying him that the case would be called to trial the next morning. At approximately 11 a.m., the clerk telephoned counsel and advised that the Administrative Judge set McComas’ trial to begin at 2:00 p.m. Counsel attempted to call McComas several times through the only contact number he had for her, but was unable to get in touch with her. Counsel even sent a paralegal to McComas’ home, but McComas was not there.

McComas’ counsel arrived at the courthouse at 2:00 p.m., selected the jury, and indicated to the trial court that he had been unable to locate McComas, although he was still attempting to do so. Counsel requested that after the opening arguments the trial court continue the case until the next morning or until such time as McComas could be located. ■ The trial court informed counsel that the trial would proceed. After hearing from three witnesses, counsel informed the trial court that McComas and the doctor were on their way to the courthouse, at which time the trial court recessed the trial for about ten minutes until 4:00 p.m., adding “[i]f this witness is not here I’m going to dimiss [the case] for lack of prosecution.” Counsel informed the court that when McComas arrived home at 3:30 p.m., she called counsel and was advised that her trial had begun at 2:00 p.m. She immediately asked for a ride from a friend and left for the courthouse. However, she had trouble finding the courthouse and was further delayed. McComas’ other witness, the doctor, was expected to arrive at 4:30 p.m. At 4:16 p.m., on Ross’ motion, the trial court dismissed the case for failure to prosecute. According to McComas and her friend who drove her there, she arrived at the courthouse at approximately 4:18 p.m. and learned her case had been dismissed with prejudice.

McComas then filed a motion for a new trial or, in the alternative, to alter or amend the judgment. Based on Small v. Mungo, 254 S.C. 438, 175 S.E.2d 802 (1970), the trial court then altered the judgment to a dismissal without prejudice.2 This appeal followed.

STANDARD OF REVIEW

Whether an action should be dismissed for failure to prosecute is left to the discretion of the trial court judge, and his decision will not be disturbed, except upon a clear showing of an abuse of discretion. Small v. Mungo, 254 S.C. 438, 442, 175 S.E.2d 802, 804 (1970).

LAW/ANALYSIS

McComas claims the trial court erred in dismissing her case because (1) the sanction of dismissal was too harsh given the facts and circumstances, and (2) she did not fail to prosecute the case. We agree.

Rule 40(b) of the South Carolina Rules of Civil Procedure provides “[t]he first 20 cases on the Jury Trial Roster at the opening of court on the first day of a term, excluding those previously dismissed, continued or otherwise resolved before the opening of that term of court, may be called for trial.” “For failure of the plaintiff to prosecute or to comply with these rules ... a defendant may move for dismissal of an action or of any claim against him.” Rule 41(b), SCRCP.

The plaintiff has the burden of prosecuting her action, and the trial court may properly dismiss an action for plaintiffs unreasonable neglect in proceeding with her cause. Don Shevey & Spires, Inc. v. Am. Motors Realty Corp., 279 S.C. 58, 60, 301 S.E.2d 757, 758 (1983). In those cases where our supreme court has affirmed dismissal of actions based on a failure to prosecute, the dismissals were imposed to maintain the orderly disposition of cases in the face of repeated warnings to the offending party or multiple opportunities to proceed with trial, and only then upon a finding of unreasonable neglect. See Small v. Mungo, 254 S.C. 438, 443, 175 S.E.2d 802, 804 (1970) (finding no abuse of discretion where counsel was apparently in his office and plaintiff and witnesses were at work when case was called for trial, and counsel informed the court that he could not appear for hours); Bond v. Corbin, 68 S.C. 294, 294-95, 47 S.E. 374, 374 (1904). In granting dismissal for failure to prosecute, there must be some showing of indifference to the rights of the defendant. E.g., Orlando v. Boyd, 320 S.C. 509, 511, 466 S.E.2d 353, 355 (1996) (holding that precluding a witness from testifying was an abuse of discretion without a showing of willful disobedience when exclusion amounted to a judgment of default or dismissal).

Our Fourth Circuit Court of Appeals has also addressed this issue. The court in McCargo v. Hedrick, 545 F.2d 393, 396 (4th Cir.1976) held that dismissal is a harsh sanction, which “should be resorted to only in extreme cases.” Dismissal is generally permitted only in the face of a clear record of delay or contumacious conduct by the plaintiff. Id. The discretion should be exercised discreetly and only after due consideration of the availability of sanctions less severe than dismissal. Id.; Bush v. U.S. Postal Serv., 496 F.2d 42, 44 (4th Cir.1974). The Fourth Circuit has said the trial court must consider four factors before dismissing a case for failure to prosecute: (1) the plaintiffs degree of personal responsibility; (2) the amount of prejudice caused the defendant; (3) the presence of a drawn out history of deliberately proceeding in a dilatory fashion; and (4) the effectiveness of sanctions less drastic than dismissal. Hillig v. Comm’r of Internal Revenue, 916 F.2d 171, 174 (4th Cir.1990). See also Herbert v. Saffell, 877 F.2d 267, 270 (4th Cir.1989); McCargo, 545 F.2d at 396; Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir.1982).

There is no dispute that McComas v. Ross was number fifteen on the trial roster for the court week of September 7, 2004. However, McComas contacted her attorney as he requested both in the morning and afternoon each day of court week. She also arranged for transportation and left for the courthouse immediately upon learning her case had been called to trial, arriving only minutes after the trial court dismissed the case. There is no indication McComas did not prosecute her case. She spent many months engaged in discovery and subpoened a total of five witnesses for trial. McComas actively pursued her case and was only personally delayed on the date' of trial. Unlike other cases when the trial court has found unreasonable neglect by the plaintiff, McComas simply arrived late on the day of trial. See Small, 254 S.C. at 441, 175 S.E.2d at 803 (holding unreasonable neglect by plaintiff was inferable when, upon notification of the case being called to trial, neither plaintiff nor his attorney appeared at trial and simply informed the court that they would not be able to start the trial until some hours later).3 Her attorney was in attendance and presented evidence to the jury regarding the case. Furthermore, McComas did not have a history of requesting continuances or abusing court rules to evidence a clear record of delay and contemptuous conduct, as required by the federal cases involving dismissal, or unreasonable neglect, as’required by the South Carolina case law.

Ross also argues that Bond, 68 S.C. at 294, 47 S.E.2d at 374, further supports the dismissal. However, dismissals for failure to prosecute are fact-intensive issues, and the facts of Bond are easily distinguishable from the facts in the case sub judice. In Bond, counsel agreed to a fixed trial date. Id. However, the plaintiff failed to appear at court on the agreed-upon morning. Id. at 295, 47 S.E. 374, 47 S.E.2d at 374. The trial court continued the case until the afternoon, but the plaintiff still did not appear. Id. Though the defendants were present in court and demanded a trial, the trial court continued the case until the next morning, “stating that, if the plaintiff failed to appear, he would dismiss the cause for want of prosecution if the defendants still demanded a trial.” Id. When the plaintiff failed to appear the next morning, the trial court dismissed the case for failure to prosecute. Id. The trial court gave the plaintiff in Bond two opportunities to correct his failure to appear, including the benefit of an extra day, although his counsel had agreed to the trial date. Id.

Under the facts of this case, dismissal of McComas’ case was too harsh a sanction for her conduct or the conduct of her counsel. Therefore, we find the trial court abused its discretion in dismissing McComas’ case.

CONCLUSION

For the reasons stated above, the trial court’s decision is hereby

REVERSED.

GOOLSBY, J., concurs. ANDERSON, J., dissents in a separate opinion.

1 Monday, September 6, 2004 was Labor Day, and, therefore, a state holiday.

2 “An order of dismissal for failure to proceed with the suit is in the nature of a discontinuance of the action and is not an adjudication of *62the merits.” Small at 443, 175 S.E.2d at 804. Therefore, the supreme court modified the judgment of the trial court “so that its effect [was] to dismiss the action without prejudice.” Id. at 444, 175 S.E.2d at 804.

3 Small was decided under section 10-1502 of the South Carolina Code (1962), which has since been replaced by Rule 41(b) of the South Carolina Code of Civil Procedure, promulgated in 1985. Though Rule 41(b) does not require the defendant prove unreasonable neglect by the plaintiff to be granted a motion to dismiss for failure to prosecute, we find a reasonableness standard should apply in cases of this kind, as illustrated by the federal cases on point.