Tressy Dressel and Ronnie Dressel v. New Orleans Hotel Consultants Monmouth, LLC
CourtCourt of Appeals of Mississippi
Date FiledNovember 3, 2026
Docket2025-CA-00813-COA
StatusPublished
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Full Opinion
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2025-CA-00813-COA
TRESSY DRESSEL AND RONNIE DRESSEL APPELLANTS
v.
NEW ORLEANS HOTEL CONSULTANTS APPELLEE
MONMOUTH, LLC
DATE OF JUDGMENT: 06/19/2025
TRIAL JUDGE: HON. CARMEN BROOKS DRAKE
COURT FROM WHICH APPEALED: ADAMS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS: BRADLEY S. CLANTON
ATTORNEYS FOR APPELLEE: KATIE RYAN VAN CAMP
EDWARD C. TAYLOR
GABRIELLE A. LANG
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED - 11/03/2026
MOTION FOR REHEARING FILED:
BEFORE BARNES, C.J., McDONALD AND EMFINGER, JJ.
McDONALD, J., FOR THE COURT:
¶1. Tressy and Ronnie Dressel appeal the Adams County Circuit Court order dismissing
their case against New Orleans Hotel Consultants Monmouth LLC for failure to prosecute.
On appeal, the Dressels argue that the delays in their case did not warrant the sanction of
dismissal. Having considered the record, the written and oral arguments of counsel, and
relevant precedent, we affirm the circuit court’s order.
FACTS
¶2. On July 17, 2021, the Dressels were guests at the Monmouth Historic Inn in Natchez,
Mississippi. During their stay, Ronnie flushed the toilet while Tressy was in the shower,
causing the shower water to become extremely hot. Reacting to the hot water, Tressy
attempted to exit the shower and grabbed onto a handrail that dislodged from the wall.
Tressy fell backward and sustained serious injuries that required extensive medical treatment
and surgeries.
¶3. On July 15, 2022, the Dressels filed a complaint in the Adams County Circuit Court
against Monmouth Historic Inn and Gardens, New Orleans Hotel Consultants MS LLC
(“Consultants MS”), and Nancy and Warren Reuther. Seven months later, on January 23,
2023, Consultants MS filed an answer to the complaint. Four months after that, on April 25,
2023, Consultants MS filed another answer.1 In both answers, Consultants MS asserted it
was not the correct defendant and stated that the owner of the property was New Orleans
Hotel Consultants Monmouth LLC (“Monmouth”).
¶4. The day after filing its second answer, on April 26, 2023, Consultants MS filed a
motion for summary judgment, arguing that the complaint improperly named it as a
defendant when it did not own the property. The pleading asserted that the correct property
owner was Monmouth. The Dressels did not file a response or brief in opposition to the
motion for summary judgment. On June 30, 2023, Consultants MS noticed the motion for
summary judgment for hearing on January 10, 2024.
¶5. On January 17, 2024, the court held the hearing via Zoom, during which the parties
agreed to substitute Monmouth for Consultants MS and to dismiss with prejudice all other
1
It is unclear why Consultants MS was served a second time because the docket
reflects no amended complaint was filed, and no new summons was issued.
2
defendants, including Monmouth Historic Inn and Gardens, Consultants MS, Nancy Reuther
and Warren Reuther. The court directed the parties to submit a proposed scheduling order
and stated that “this matter needs to move along.”2 However, the only order submitted to the
court was an “Agreed Order for Summary Judgment and Substitution of Parties,” which the
court entered on January 25, 2024.
¶6. The Dressels failed to file discovery before and after the substitution of the parties.
Other than the entries of appearances by Monmouth’s defense counsel, the next document
filed with the court was Monmouth’s motion to dismiss for failure to prosecute, which was
filed on November 20, 2024.
¶7. On December 8, 2024, the Dressels filed a response in opposition to the motion,
arguing that there were no unnecessary delays in the proceedings that prejudiced Monmouth.
Counsel pointed out that he spent the first nine months after Consultants MS was served
dealing with its motion for summary judgment and determining who, in fact, was the correct
defendant. Although the summary judgment motion was filed in April 2023, it was not
noticed for hearing until January 2024. In addition, the Dressels’ counsel represented that
he had been unable to work at times due to neurological tests and treatments for diabetes,
Long Covid, Parkinson’s, and other conditions that began in 2021 and were still continuing.
The Dressels maintained that the delays were not intentional and that they planned to serve
discovery within a couple of days.
2
There is no transcript of the hearing, but in its final judgment, the court noted that
it had stated this to the parties at that time.
3
¶8. On December 20, 2024, Monmouth filed a reply to the Dressels’ response, arguing
that Mississippi caselaw supports dismissal under Mississippi Rule of Civil Procedure 41(b)
when there is a “clear record of delay.” Monmouth pointed to appellate decisions where the
courts have held that delays of nineteen months and 435 days were instances of “clear
records of delay.” The delay here, calculated from the filing of the complaint in July 2022
to the filing of the motion to dismiss in November 2024, totaled 860 days. Even if counted
from the date of the substitution of the defendants, the Dressels had taken no action for over
300 days. Furthermore, Monmouth contended that because the applicable statute of
limitations for the Dressels’ cause of action had expired, Monmouth was entitled to a
dismissal with prejudice. On January 2, 2025, Monmouth noticed a hearing on its motion for
February 28, 2025.
¶9. Prior to the hearing, on February 9, 2025, the Dressels propounded interrogatories and
requests for production of documents to Monmouth. In response, Monmouth filed a motion
for a protective order, seeking protection from answering the Dressels’ discovery requests.
Monmouth argued that if the motion to dismiss was granted, then Monmouth would suffer
an “undue burden and expense” by responding to discovery. On February 13, 2025,
Monmouth noticed the motion for a protective order for the February 28, 2025 hearing as
well.
The Hearing
¶10. During the hearing on February 28, 2025, both parties argued their respective
4
positions to the court. Monmouth asserted that Mississippi caselaw supported dismissing a
case for failure to prosecute when there have been no “actions of record,” such as
propounding discovery, conducting a site inspection, or noticing depositions, and when there
is a clear record of delay. Monmouth further argued that the only factor required for
dismissal under Rule 41(b) is delay.
¶11. In opposition, the Dressels’ attorney argued that after Consultants MS filed the motion
for summary judgment, he had conversations with Consultants MS’s attorney, going back
and forth about who was the appropriate party. Dressel’s attorney added that he felt he could
not propound discovery while the motion for summary judgment was pending. Thus, he
claimed that the initial delays in this matter were a result of negotiations and waiting for a
conclusion to be reached on Consultants MS’s motion for summary judgment.
¶12. Furthermore, the Dressels’ attorney argued that after the substitution, he had done
considerable work preparing for discovery, including gathering and organizing nearly 600
pages of medical records, which he had provided to Monmouth. The Dressels’ counsel
conceded that no “actions of record” occurred until after the motion to dismiss was filed and
that he had only supplied the medical records “earlier this year” (i.e., in January 2025, after
the motion to dismiss was filed). The Dressels’ lawyer also told the court that he was a solo
practitioner, and during this time, he had been receiving medical treatment. He had forty-
four doctor’s visits and numerous other hospital treatments relating to his Type-II diabetes
and diabetic ulcers. He informed the court that he had also retained another attorney to assist
5
him in the case. The Dressels’ attorney further argued that Monmouth had suffered no
prejudice and that dismissal was a last resort that is not warranted given the circumstances
in this case. He assured the court that with additional counsel there would be no further
delays. The court took these arguments and motions under advisement.
¶13. Following the hearing on March 4, 2025, James H. Murphy Law Firm PLLC entered
its appearance as counsel on behalf of the Dressels. While the parties waited for the court’s
ruling on Monmouth’s motions, the Dressels filed a motion for a trial setting on March 4,
2025. Monmouth responded with a request that the court enter a stay until a ruling on their
prior motions was issued.
¶14. On June 19, 2025, the court entered an order granting Monmouth’s motion to dismiss
for failure to prosecute. The court noted that the only action of record between the agreed
order in January 25, 2024, and the motion to dismiss in November was the withdrawal of
Consultants MS’s counsel and entry of appearance of new counsel for Monmouth. The court
examined the Dressels’ actions, or lack thereof, because the duty to prosecute is the burden
of the plaintiff. The court stated that it had considered the Dressels’ counsel’s ongoing and
significant illness, but ultimately the court found that under current caselaw, that did not
excuse the delay or the lack of action in the record.
¶15. The Dressels now appeal, arguing that the circuit court abused its discretion in
dismissing their case.
STANDARD OF REVIEW
¶16. “In reviewing a trial court’s dismissal for failure to prosecute pursuant to Rule 41(b),
6
this Court will reverse only if it finds the trial court abused its discretion.” Cox v. Cox, 976
So. 2d 869, 874 (¶11) (Miss. 2008) (quoting Am. Tel. & Tel. v. Days Inn of Winona, 720 So.
2d 178, 180 (Miss. 1998)). “Abuse of discretion is found when the reviewing court has a
‘definite and firm conviction’ that the court below committed a clear error of judgment [in]
the conclusion it reached upon a weighing of the relevant factors.” First Sec. Bank v.
Richmond, 431 So. 3d 742, 744 (¶6) (Miss. 2026). “In applying the applicable
abuse-of-discretion standard of review, this Court may not reweigh the evidence or substitute
its judgment for that of the trial court.” Tisdale v. S. Cent. Reg’l Med. Ctr., 411 So. 3d 227,
232 (¶7) (Miss. Ct. App. 2024), cert. denied, 408 So. 3d 1275 (Miss. 2025).
DISCUSSION
¶17. Rule 41(b) of the Mississippi Rules of Civil Procedure permits defendants to move
for dismissal “for failure of the plaintiff to prosecute[.]” M.R.C.P. Rule 41(b).3 The
Mississippi Supreme Court has held that “[m]otions for failure to prosecute are considered
on a case-by-case basis,” although a dismissal under Rule 41(b) may be upheld when there
is (1) “a clear record of delay or contumacious conduct by the plaintiff,” and (2) “a finding
that lesser sanctions would not [suffice].” Holder v. Orange Grove Med. Specialties P.A.,
3
Rule 41(b) “Involuntary Dismissals” provides in part:
For 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).
7
54 So. 3d 192, 197, 201 (¶¶17-18, 34) (Miss. 2010). However, in the more recent case,
Tisdale, we held that so long as a clear record of delay is found, then “no showing of
contumacious conduct is necessary,” and “delay alone may suffice for a dismissal pursuant
to Rule 41(b).” Tisdale, 411 So. 3d at 232 (¶11) (quoting Holder, 54 So. 3d at 199 (¶¶25-
27)). Still, “[t]he mere fact that delay occurs in the prosecution of a case is not sufficient to
warrant dismissal for want of prosecution. 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.” Barry v. Reeves, 47 So. 3d 689, 694 (¶14) (Miss. 2010).
¶18. The defendant may bolster the case for dismissal by proving “aggravating factors” are
present, but they are not required to establish the basis for a motion to dismiss. Holder, 54
So. 3d at 200 (¶31). “[A]ggravating 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. (citing Cox, 976 So. 2d at 876). In Tisdale, we summarized:
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 [v. S. Cent. Reg’l
Med. Ctr.,] 234 So. 3d [1242,] 1246 (¶17) [(Miss. 2017)]. In short, the
absence of an aggravating factor does not defeat dismissal under Rule 41(b).
. . . 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.
Tisdale, 411 So. 3d at 239-40 (¶44).
¶19. Although the presence or lack of prejudicial factors is not strictly required, the
8
Mississippi Supreme Court has held that unreasonable delay may be presumed to prejudice
the defendant. Cox, 976 So. 2d at 879 (¶44) (citing Rogers v. Kroger Co., 669 F.2d 317, 322
(5th Cir.1982)). However, “[d]elay alone may suffice for a dismissal under Rule 41(b).
Factors other than delay are not required.” Holder, 54 So. 3d at 198 (¶20) (citation and
internal quotation marks omitted). We reiterated this point in Eason v. South Central
Regional Medical Center, 411 So. 3d 208, 222 (¶58) (Miss. Ct. App. 2024), stating that
“proof of actual prejudice is not required to support dismissal. Rather, a clear record of delay
in prosecuting the case is alone sufficient to warrant a dismissal.” (Quotation mark omitted).
¶20. Eason is relevant to the facts and arguments raised in this case. There, Eason’s estate
filed a medical negligence action against a defendant, SCRMC, on February 27, 2019. Id.
at 211 (¶4). SCRMC was served, filed an answer, and propounded interrogatories and
requests for production of documents to Eason on August 21, 2019. Id. at (¶5). In March
2020, COVID-19 was declared a national emergency; still the Mississippi Supreme Court
issued an administrative order instructing the courts to remain open and accessible. Id. at
211-12 (¶6). In April 2020, SCRMC sent a good faith letter to the estate’s attorney, Turner,
concerning the unanswered discovery. Id. at 212 (¶7). Turner did not respond and later was
allowed to withdraw. Id. at (¶8). On October 12, 2020, new counsel, Williamson, entered
an appearance on behalf of Eason. Id. at (¶9). SCRMC sent Williamson a good faith letter
on March 2, 2021. Id. at (¶10). Williamson did not reply, and the only filing by Williamson
was a notice of change of address on April 29, 2021. Id. at (¶11).
9
¶21. On August 5, 2021, SCRMC filed a motion to dismiss for failure to prosecute. Id. at
(¶12). On August 15, 2021, Eason responded to the discovery and, the next day, responded
to the motion to dismiss. Id. at 213 (¶¶13-14). Williamson argued that after he entered his
appearance, “COVID-19 complicated his ability to get up to speed on the Eason file and the
other files he had taken from Turner” and that he had no recollection of seeing the good faith
letter that SCRMC claimed it had sent on March 2, 2021. Id. When he did, Williamson said
he immediately took steps to respond. Id. After a hearing, the circuit court granted SCRMC’s
motion and later denied Eason’s motion to alter or amend that order. Id. at (¶¶15-16).
¶22. On appeal, we rejected Eason’s argument that the circuit court had miscalculated the
length of the delay when it did not take into account the substitution of new counsel or
Williamson’s filing of a notice of change of address as evidence of affirmative action to
prosecute. Id. at 217 (¶35). We held that the circuit court had considered these facts, stating
that “even considering Turner’s withdrawal and the subsequent entry of current counsel,
Eason has not provided[,] and the Court does not find[,] a valid reason for Eason’s delay of
over ten . . . months in responding to discovery requests or taking any action at all to propel
the case forward.” Id. at (¶36). We noted that Eason’s responses to SCRMC’s discovery
were finally filed but only after the motion to dismiss was filed, id. at 218 (¶41), and that
Eason had shown no actions of record that advanced the case to judgment. Id. at (¶43). We
noted that the circuit court described the clear delay and the effect of that delay, stating that
“[i]n the more than four . . . years since the subject medical care, the ability of [South
10
Central] to adequately prepare its defenses has no doubt diminished. Detailed memory fades,
care is provided for hundreds of patients in the interim[,] and care providers change jobs and
relocate.” Id. at 221 (¶¶55-56). We stated, “Other lesser sanctions proposed by Eason’s
counsel cannot restore faded memories of fact witnesses and busy medical professionals, who
may have either retired or relocated their practices out-of-state.” Id. at (¶56). We affirmed
the circuit court’s grant of the motion, finding no abuse of discretion. Id. at 222 (¶63).
¶23. These are the general principles trial courts can apply when considering a Rule 41(b)
motion to dismiss. We turn now to the arguments raised by the parties here.
I. Whether the circuit court abused its discretion in dismissing the
Dressels’ case under Rule 41(b).
¶24. In the case at hand, the Dressels argue that the delay in prosecuting their case was not
caused solely by them, and they maintain that the delay on their part should be excused
because of the medical issues that their counsel experienced. They cite several cases where
delays in prosecuting a case were even longer than theirs, yet the cases were not dismissed.
In response, Monmouth points to the Dressels’ duty to prosecute their claims, cites cases
where inactivity of less time than in this case was found to warrant dismissal, and argues that
counsel’s illness did not excuse the delay in this case.
Length of Delay
¶25. In this context, the length of delay in prosecuting the claim is fundamental. In this
case, the Dressels filed their complaint on July 15, 2022. The docket does not reflect when
the first defendant, Consultants MS, was served, but it filed an answer on January 23, 2023,
11
approximately seven months after the complaint was filed.4 In that answer, Consultants MS
alleged not only that it was not the proper defendant, but it also identified the correct
defendant. Therefore, as of January 23, 2023, the Dressels were aware that they had sued the
wrong defendant, and they were told who the correct defendant was. Yet they took no action
of record to confirm this information or substitute the correct party.
¶26. Consultants MS filed another answer and a motion for summary judgment on April
25-26, 2023, alleging the same facts. Again, the Dressels took no action of record to
determine the identity of the proper defendant. The Dressels’ counsel stated during the
appellate oral argument that he was informally trying to find out who was the correct
defendant and did not want to serve discovery on the wrong defendant. However, the very
purpose of discovery is to secure information from the opposing side, including the
identification of the proper parties. In this case, a simple interrogatory asking Consultants
MS to explain why Monmouth was the proper defendant, along with a simple request for
documents supporting its answer, would have given the Dressels enough information to
respond to Consultants MS’s motion for summary judgment5 or agree to an order of
substitution long before the court’s hearing on January 17, 2024—nearly a year after
Consultants MS had filed its first answer. The Dressels provided little explanation for why
4
The docket reflects summonses were issued on July 15, 2022, but there is no filing
of a return of service. At oral argument, neither party could explain why it took so long for
an answer to be filed.
5
We note that the Dressels never filed a response to the motion for summary
judgment.
12
it took them nearly a year and a court hearing to finally agree on the correct defendant.6 The
Dressels’ counsel said the parties “went back and forth” in discussions, but he failed to take
any action of record after filing the complaint until after the filing of the Rule 41 motion to
dismiss, not even a response to the motion for summary judgment. “An action of record
includes such filings as pleadings, discovery requests, and deposition notices as well as any
act that advances the case to judgment.” Cameron v. Miller, 430 So. 3d 861, 865 (¶13) (Miss.
Ct. App. 2025), cert. denied, 435 So. 3d 370 (Miss. 2026) (internal quotation marks omitted).
¶27. At the hearing in January 2024, the court urged the parties to move the case along and
requested a scheduling order. However, the Dressels took no further action to pursue their
claim until the new defendant, Monmouth, filed a motion to dismiss under Rule 41(b) on
November 20, 2024. Even thereafter, the Dressels did not propound discovery until over two
months later, on February 9, 2025.
¶28. All told, the delay in the Dressels’ prosecution of this case from the date of the
complaint amounted to 860 days:
192 days From the date of filing of the complaint (July 15, 2022) to the
date of Consultants MS’s first answer (January 23, 2023)
368 days From Consultants MS’s first answer (January 23, 2023) to the
agreed order substituting parties (January 25, 2024)
300 days From the date of the agreed order (January 25, 2024) to the date
6
The Dressels further claim that the defendants are responsible for the delay because
Consultants MS set the hearing on the motion for summary judgment for January 2024.
However, the plaintiffs did not have to wait until the date of the hearing to agree to the
substitution, which is what they did on the date of the hearing anyway.
13
of the motion to dismiss (November 20, 2024).
Total: 860 days
¶29. Adding in the time from the filing of the motion to dismiss (November 20, 2024) to
the first discovery the Dressels propounded (February 9, 2025) totals 81 days, so the Dressels
took no affirmative action to pursue their case for 941 days after it was filed. Even
discounting the 192 days between the filing of the complaint and the filing of Consultants
MS’s answer, there is still a 668-day delay between the answer and the filing of the motion
to dismiss, and there is a 749-day delay before the Dressels propounded any discovery.
¶30. To support their argument that delays of this length or greater do not warrant dismissal
under Rule 41(b), the Dressels cite Hoffman v. Paracelsus Health Care Corp., 752 So. 2d
1030, 1035 (¶19) (Miss. 1999), where the Mississippi Supreme Court reversed a Rule 41(b)
dismissal in a case that had been pending for six years. However, that case is factually
distinguishable from the case at hand. There, Hoffman was injured in June 1990 and later
filed suit. Id. at 1032 (¶¶2-3). Trial was set for August 1993 but continued by the court three
times and ultimately set for October 1995. Id. at (¶4). One of the defendants then filed
bankruptcy, and Hoffman’s medical malpractice case was stayed. Id. at (¶5). When the
bankruptcy was resolved, in May 1996, Hoffman wrote the circuit court clerk about the case
being placed back on the active docket and to get a trial date. Id. Thereafter in August 1997,
defendants filed a Rule 41(b) motion to dismiss, and the circuit court granted the motion. Id.
at 1033 (¶6). On appeal, the Mississippi Supreme Court reversed, noting that at least one of
14
the continuances was due to actions taken by the defendants, and the others were by the
agreement of the parties. Id. at 1034-35 (¶¶15-16). The Supreme Court also noted that
Hoffman’s case was distinguishable from other Rule 41(b) rulings it had considered where
plaintiffs themselves, not their attorneys, were the cause of the delay and where a defendant
was prejudiced by the delay. Id. at 1035 (¶17).
¶31. Unlike Hoffman, in the Dressels’ case, there were no trial settings continued, no
bankruptcy that caused a delay, nor any agreements between or conduct by Consultants MS
or Monmouth causing the delay. Despite the Dressels’ claims in their brief that the
defendants took no action, “doing what they saw as [an] appropriate defense strategy,” at oral
argument the Dressels’ attorney agreed that defense counsel had not misled him in any way
or caused him to refrain from pursuing the case. Moreover, the defense had no obligation
to prosecute the case; that burden rested with the plaintiff. Holmes v. Grisby, 234 So. 3d 425,
429 (¶15) (Miss. Ct. App. 2017); see also Cornelius v. Benefield, 168 So. 3d 1028, 1036 (¶8)
(Miss. Ct. App. 2013) (“The record shows no dilatory conduct on behalf of Dr. Benefield,
and Dr. Benefield possessed no duty to prosecute Cornelius’s case for her or prod her into
action.”). In the Dressels’ case, the delay, though shorter than in Hoffman, was caused purely
by the inactivity or lack of diligence on the part of the plaintiffs, who had the duty to
prosecute their claims.
¶32. In more recent cases the Mississippi Supreme Court and this Court have found no
abuse of discretion in the dismissal of cases with delays similar to the one in this case. In
15
Hill v. Ramsey, 3 So. 3d 120, 122 (¶7) (Miss. 2009), the Mississippi Supreme Court held the
trial court did not abuse its discretion in dismissing a case when it found Hill’s conduct in
prosecuting the case was dilatory, stating:
It is clear from the record that the only action taken by the plaintiff between
filing the amended complaint and this appeal was reactionary. There is no
evidence in the record that Hill ever noticed one deposition, served any
discovery requests, issued a subpoena, or otherwise initiated discovery. Even
if his actions taken in response could somehow be viewed as sufficient
prosecution of his claim, it is undisputed that no action of record took place
between August 2005 and March 2007, which is sufficient delay, standing
alone, to warrant dismissal.
Thus, the Court agreed that the delay of nineteen months (570 days) with no activity was
sufficient to support a dismissal under Rule 41(b).
¶33. In Havard v. Sumrall, 250 So. 3d 1282, 1289 (¶20) (Miss. Ct. App. 2017), this Court
found a “clear record of delay” when the Havards failed to begin discovery until nearly two
years (720 days) after they filed their medical negligence complaint. In that case, James and
Margaret Havard filed a medical-malpractice complaint against Tanelle Sumrall on
November 29, 2012. Id. at 1284 (¶3). In January 2013, the Havards amended their
complaint to add Sumrall’s employer, the Akeso Group, as a defendant. Id. at 1285 (¶3).
The docket reflected no action from January 23, 2013, until September 30, 2014, when the
court sent a trial-calendar notice to the parties. Id. Shortly thereafter, in October 2014,
Sumrall filed a motion to dismiss for failure to prosecute under Rule 41(b). Id. In December
2014, the Havards propounded discovery to Sumrall but did not respond to the motion to
dismiss until January 5, 2015. Id.
16
¶34. In their response, the Havards’ lead counsel explained that he had medical issues in
April 2013, which required a surgery and a rehabilitation period. Id. Further, the Havards
argued that the motion should be denied because Sumrall was not prejudiced by this delay.
Id. Sumrall responded that the Havards failed to prosecute the case for nearly two years and
that they should have filed a motion for additional time. Id. The circuit court agreed with
Sumrall and dismissed the claim for failure to prosecute. Id.
¶35. On appeal, we affirmed the circuit court’s dismissal, finding a “clear record of delay”
and reactionary conduct from the Havards. Id. at 1290 (¶23). We found a “clear record of
delay” because the Havards failed to begin discovery until nearly two years after the
complaint was filed, and they did not adhere to the deadlines established by the Uniform
Rules of Circuit and County Court at the time. Id. at 1289 (¶20). Lastly, we found all actions
conducted after the filing of the motion to dismiss to be reactionary and evidence of a clear
record of delay. Id. at 1290 (¶23).
¶36. As in Havard, in the case at hand, the Dressels filed suit in July 2022, but they did not
propound any discovery until February 2025, over a year after substituting the correct
defendant. All other actions (providing medical records in January 2025, entering an
appearance of co-counsel, and filing a motion for trial setting in March 2025) were
reactionary and were taken only after the response to the motion to dismiss was filed.
¶37. Leasy v. SW Gaming LLC., 335 So. 3d 555 (Miss. 2022), is closely on point to the
case at hand. There, Leasy fell in a hotel bathroom in June 2014. Id. at 556 (¶2). She filed
17
suit in March 2017 and amended it in May 2017 to substitute SW Gaming as a defendant.
Id. She propounded discovery in May 2017 but took no further action until SW Gaming filed
a motion to dismiss for lack of prosecution on May 19, 2019. Id. Leasy claimed the delay
was due to her attempting to determine the extent of her damages because she had an
intervening car accident. Id. The circuit court found Leasy’s actions were dilatory and that
her recent actions were reactionary to the defendant’s motion to dismiss. Id. at 557 (¶4). On
appeal, we found that the delay was excusable, that SW Gaming failed to prove actual
prejudice from the delay, and that lesser sanctions were more appropriate. Id. at (¶5). The
Mississippi Supreme Court granted certiorari, id., and the Supreme Court reversed, holding:
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). The Court noted that the trial court had rejected Leasy’s excuses for the
delay, finding that lesser sanctions would not suffice. “These findings were supported by the
record and were not clearly erroneous.” Id. at 559 (¶11).
¶38. The Dressels argue that they did not ignore any discovery, as did the plaintiffs in
Holder, or violate any court orders because there were none to violate or intentionally
obstruct the progress of the case. However, the fundamental question is what they did to
affirmatively prosecute their case. As in the cases above, the Dressels’ actions were
18
reactionary, only securing additional counsel and propounding discovery after the motion to
dismiss had been filed. They submitted no scheduling order as the court requested in January
and failed to adhere to the deadlines established by the Uniform Civil Rules of Circuit and
County Court.7 Moreover, actual prejudice to Monmouth is not a prerequisite.
Excuse for the Delay
¶39. The Dressels argue that the circuit court failed to consider their counsel’s ill health,
which should excuse any delay they may have caused. They also point out that their attorney
had retained co-counsel to mitigate any further delay in the litigation. However, the circuit
court noted that in Leasy, Havard, and Tisdale, the illness of the client or counsel did not
excuse the delay. The circuit court was correct and we find no abuse of discretion in its
finding that the illness of Dressels’ counsel did not excuse the delay in this case either.
¶40. The circuit court correctly noted that the cases the Dressels relied upon did not support
excusing the delay in their case because of their counsel’s medical condition. In Leasy, the
plaintiff argued that she had good cause for her delay because she was seeking medical
treatment and her prognosis was unknown. Leasy, 335 So. 3d at 557 (¶2). However, the
7
Rule 4.03 of the Uniform Civil Rules of Circuit and County Court Practice requires
in part:
A. All discovery must be completed within ninety days from service of an
answer by the applicable defendant. Additional discovery time may be
allowed with leave of court upon written motion setting forth good cause for
the extension. . . .
UCRCCC 4.03(A).
19
circuit court did not accept that excuse and the Mississippi Supreme Court, finding no abuse
of discretion, deferred to the trial court’s decision. Id. at 560 (¶13). In Havard, plaintiffs’
counsel explained that the delay was caused by a serious medical problem he experienced,
requiring surgery and rehabilitation in April 2013. Havard, 250 So. 3d at 1289 (¶19).
However, the Havards took no action even after their counsel recuperated and had still not
moved the case forward until after the defendant filed the Rule 41 motion to dismiss a year
and a half later. Id. at 1285 (¶2). In Tisdale, the plaintiffs raised COVID-19 as an excusable
cause of delay. Tisdale, 411 So. 3d at 235 (¶24). However, on appeal, we affirmed the
circuit court’s Rule 41 dismissal, pointing out that before the first emergency order keeping
Mississippi courts open, the Tisdales had already accumulated a twelve-month period of no
activity in their case. Id.
¶41. In the case at hand, the circuit court considered the Dressels’ counsel’s illness, which
had lingered from the time of filing the complaint to the date of the hearing on the motion
to dismiss, and found that it did not excuse the inactivity on the case for that length of time.
If anything, because he knew that he suffered a chronic illness that might require him to
undergo treatment, the Dressels’ counsel should have made arrangements to engage co-
counsel or develop some other plan to keep his cases moving while he was incapacitated, if
not in 2022, then in 2023 before the motion was filed. We find no abuse of discretion in the
circuit court’s finding that counsel’s illness did not excuse the delay in this case.
¶42. We find that the record reflects a lengthy unexcused delay in this case, and the circuit
20
court did not abuse its discretion in determining that the delay warranted a dismissal of the
case pursuant to Rule 41(b).
II. Whether the circuit court erred in failing to consider lesser
sanctions than dismissal.
¶43. The Dressels next argue that Mississippi law requires the circuit court to consider
lesser sanctions before dismissing a case with prejudice under Rule 41(b), citing Wilson v.
Nance, 4 So. 3d 336, 341 (¶15) (Miss. 2009). The circuit court’s order here does not
expressly state that it considered and rejected lesser sanctions than dismissal. However, in
a more recent case, the Mississippi Supreme Court has held that the trial court need not make
an express finding that lesser sanctions would be inadequate, stating:
Furthermore, despite [Plaintiff] Regan’s insistence, this Court has never
required a trial judge to enumerate each and every lesser available sanction and
in turn state why each does not apply. To the contrary, the absence of even a
general express finding on lesser sanctions “does not require reversal.” Collins
v. Koppers, Inc., 59 So. 3d 582, 590 (Miss. 2011). While this Court may be
“‘less likely’ to affirm a Rule 41(b) dismissal if the record does not reflect that
the trial court considered lesser sanctions, it is clear that the ultimate decision
lies with this Court.” Id.
Regan v. S. Cent. Reg’l Med. Ctr., 234 So. 3d 1242, 1247 (¶20) (Miss. 2017).
¶44. In Collins, 59 So. 3d at 590 (¶22), the record did not reflect that the trial judge
considered lesser sanctions. The Mississippi Supreme Court stated,
But that fact alone does not require reversal. Although this Court has stated
that it is “less likely” to affirm a Rule 41(b) dismissal if the record does not
reflect that the trial court considered lesser sanctions, it is clear that the
ultimate decision lies with this Court. See, e.g., Wilson, 4 So. 3d at 341 (“this
Court must determine . . . whether lesser sanctions could have served the best
interests of justice . . .”) (emphasis added); Cox v. Cox, 976 So. 2d 869, 876
(Miss. 2008) (“We also find that lesser sanctions would not suffice under these
21
circumstances because lesser sanctions could not cure the prejudice . . . caused
by the delay.”) (emphasis added). We find that lesser sanctions would not have
“served the best interests of justice” in this case.
Id. We cited Regan in Havard, noting:
The supreme court instead explained that, although an appellate court “may be
less likely to affirm a Rule 41(b) dismissal if the record does not reflect that
the trial court considered lesser sanctions, it is clear that the ultimate decision
lies with [the appellate c]ourt.” Furthermore, “[a] showing of delay or
contumacious conduct is sufficient for a Rule 41(b) dismissal when a lesser
sanction would not serve the best interests of justice.”
Havard, 250 So. 3d at 1290 (¶24). We further noted that given the clear record of delay and
reactionary conduct the Havards displayed in their case, we found “no abuse of discretion in
the circuit court’s dismissal with prejudice since it served the best interests of justice.” Id.
¶45. In the Dressels’ ca