Leesa Crim McCharen v. Judson Moore Allred, III

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2016-CA-00909-COA

LEESA CRIM MCCHAREN APPELLANT

v.

JUDSON MOORE ALLRED, III APPELLEE

DATE OF JUDGMENT: 05/23/2016
TRIAL JUDGE: HON. WILLIAM H. SINGLETARY
COURT FROM WHICH APPEALED: HINDS COUNTY CHANCERY COURT,
FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: PAUL E. ROGERS
ATTORNEY FOR APPELLEE: ROBERT S. MURPHREE
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION: GRANTED APPELLEE’S MOTION TO
DISMISS ORDER REINSTATING THE
CASE
DISPOSITION: AFFIRMED: 08/01/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE GRIFFIS, P.J., FAIR, WILSON AND WESTBROOKS, JJ.

FAIR, J., FOR THE COURT:

¶1. Leesa McCharen brought a claim against her ex-husband, Judson Allred III, for child

support arrearages, among other claims. After almost two years of inactivity in the case, the

clerk filed a motion to dismiss for want of prosecution under Mississippi Rule of Civil

Procedure 41(d). Leesa filed a motion to reinstate the case, and a hearing was held without

Judson or his attorney present.1 After Leesa’s motion was granted by the court, Judson filed

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Judson’s attorney claimed that the court administrator told him no hearing was set
on the docket.
a motion to set aside the order reinstating the case. The court granted Judson’s motion under

Mississippi Rule of Civil Procedure 60(b), finding that there was no compelling reason for

Leesa’s delay in prosecution. Leesa appeals. Finding the judge acted well within his

discretion, we affirm.

FACTS

¶2. Judson and Leesa, both former attorneys, divorced in 1994. They had two daughters

– one born in 1985 and the other born in 1988. The court granted Leesa physical and legal

custody of the minor children, subject to Judson’s visitation rights. Unfortunately, we are

not privy to the details of the divorce decree, as it was not included in the record.

¶3. On March 5, 2012, Leesa filed a petition for citation of contempt and motion to

modify former orders of the court. She claimed Judson owed more than the $46,000 in

arrearages, plus interest. Leesa also claimed that he was in willful contempt for failing to

obtain medical insurance for the minor children and for failing to pay the insurance premiums

in the amount of $51,500.08. She made various other claims, allegedly stemming from

Judson’s failure to adhere to the original divorce decree. Leesa also included private school

tuition and private college tuition. All in all, her claims totaled over $537,000. At the time

of Leesa’s petition, their daughters were twenty-four and twenty-seven years old.

¶4. After a year of heated litigation, Leesa’s claims dwindled down to almost $136,000.

Leesa’s last filing was on August 12, 2013. On October 1, 2013, Judson filed a motion to

dismiss based on Leesa’s failure to add their daughters as necessary parties. The court held

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a hearing on the motion on October 9. No order resulting from the hearing appears in the

record, but a later hearing transcript mentions that the chancellor ordered Leesa to join her

daughters as parties. After that hearing, Leesa took no action whatsoever in the case. On

June 1, 2015, the clerk moved that the case be dismissed under Rule 41(d). Leesa still did

nothing. The court dismissed the case without prejudice on July 9, 2015. On August 7,

2015, Leesa filed a motion to reinstate the case. Leesa’s attorney, Paul Rogers, asked

Judson’s attorney, Robert Murphree, if he would sign an agreed order to reinstate the case.

Murphree said no. In December 2015, Rogers contacted Murphree about possible hearing

dates, and he agreed to several dates. According to Murphree, that was the last he heard

about the case.

¶5. The court held a hearing on February 25, 2016. Neither Murphree nor Judson

appeared. Leesa claimed she was unaware of the clerk’s motion to dismiss because the

motion listed the parties as “Allred Judson Moore” and “Allred Leesa Crim” instead of

“Judson Moore Allred” and “Leesa Crim Allred.” The court ultimately granted Leesa’s

motion. Murphree said it was not until April 28, 2016, that he discovered there had been a

hearing, when he received some discovery from Rogers. At Murphree’s request, Rogers sent

him a copy of the motion to reinstate the case.

¶6. Murphree filed a motion to set aside the order on May 2, 2016. A few days before the

motion’s hearing, Murphree submitted an affidavit detailing his version of the events

between August 2015 and the February 2016 hearing. Murphree said he never received

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notice of the hearing. He also included copies of his notes from conversations with the court

administrator, who, on February 11, reportedly told him the case was closed.

¶7. On May 17, 2016, the court held a hearing on what the chancellor called a Rule 60

motion. The court found no good cause shown for Leesa’s delay and dismissed the case

without prejudice. Leesa appealed.

STANDARD OF REVIEW

¶8. The trial court has the inherent authority to dismiss an action for lack of prosecution.

Wallace v. Jones, 572 So. 2d 371, 375 (Miss. 1990). We apply a substantial

evidence/manifest error standard of review to the trial court’s grant or denial of a motion to

dismiss pursuant to Rule 41 of the Mississippi Rules of Civil Procedure. Ill. Cent. R.R. v.

Moore, 994 So. 2d 723, 733 (¶30) (Miss. 2008). Also, we will not reverse the trial court’s

denial of relief from judgment pursuant to Rule 60 of the Mississippi Rules of Civil

Procedure unless the trial court has abused its discretion. Harrison v. McMillan, 828 So. 2d

756, 773 (¶51) (Miss. 2002).

DISCUSSION

¶9. Mississippi Rule of Civil Procedure 41(d)(1) states that the “case will be dismissed

by the court for want of prosecution unless within thirty days following said mailing

[notifying the attorneys the case will be dismissed], action of record is taken or an application

in writing is made to the court and good cause shown why it should be continued as a

pending case.” Leesa left her case dormant for almost two years. As a result, the clerk filed

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a motion to dismiss on June 1, 2015. Leesa did nothing. Rule 41(d)(1) also states that “[i]f

action of record is not taken or good cause is not shown, the court shall dismiss each such

case without prejudice.” M.R.C.P. 41(d)(1) (emphasis added). So on July 9, 2015, the court

entered an order to that effect. Twenty-nine days later, Leesa filed a motion to reinstate the

case.

¶10. The court originally granted Leesa’s motion, presumably because neither Judson nor

his counsel was present at the February 2016 hearing. But after listening to Judson’s

argument at the May 2016 hearing, the chancellor found no good cause had been shown and

dismissed the case without prejudice under Rule 60(b)(6). In doing so, he addressed Leesa’s

claim that she did not recognize the motion to dismiss, styled “Moore v. Crim”:

[Leesa’s argument that the clerk failed] to properly docket [the case] is a red
herring. It’s pretty much clearly docketed as this case . . . . (T)he clerk may
have reversed the order of the names, but, goodness gracious, the last name
“Allred” leads in both reference to plaintiff and defendant, so I don’t think you
can possibly make that argument with a straight face.

¶11. On appeal, Leesa abandons her sole argument from the trial court and instead argues

that: (1) prior to dismissal, the statute of limitations of Leesa’s claim had expired; and (2)

Judson delayed litigation with frivolous motions. It is well established that this Court will

not consider issues raised for the first time on appeal. Fowler v. White, 85 So. 3d 287, 293

(¶21) (Miss. 2012). Thus, we decline to address Leesa’s current arguments.

¶12. Rule 60(b)(6) allows a judge the opportunity to relieve a party from a final judgment

for any justifiable reason. M.R.C.P. 60(b)(6). After careful review of the record, we find the

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chancellor acted within his discretion in finding that Leesa failed to show any compelling

reason for her delay in prosecution. Accordingly, we affirm the chancellor’s order setting

aside the order reinstating the case.

¶13. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,
WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

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