IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2024-CA-01390-COA
SOUTHEAST FINANCIAL CREDIT UNION APPELLANT
v.
AARON L. BROWN APPELLEE
DATE OF JUDGMENT: 06/26/2024 TRIAL JUDGE: HON. GERALD W. CHATHAM SR. COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: EDRICKE LEMOYNE PEYTON ATTORNEY FOR APPELLEE: PSONYA CELESTE WILSON NATURE OF THE CASE: CIVIL - CONTRACT DISPOSITION: AFFIRMED - 02/10/2026 MOTION FOR REHEARING FILED:
BEFORE WILSON, P.J., McCARTY AND EMFINGER, JJ.
McCARTY, J., FOR THE COURT:
¶1. A credit union sued a credit card holder, alleging he spent almost $15,000 then failed
to pay the accompanying bill. But the defendant testified that he never applied for the credit
card, instead claiming his ex-wife was who incurred the charges. Then, the case went cold.
The circuit court clerk warned the plaintiff it was subject to dismissal. After more time
passed, the trial court found the credit union failed to show good cause as to why its case
should not be dismissed for lack of prosecution.
¶2. Finding the trial court was within its discretion to dismiss the case after it had been
pending for over seven years, we affirm.
BACKGROUND
¶3. On May 1, 2017, Southeast Financial Credit Union sued Aaron Brown, alleging he had “applied for and was approved for a[] credit card” but failed to pay the bill. Southeast
Financial alleged he ultimately owed an “unpaid remaining balance” of $14,893.10. The
credit union sought 11.9% interest per year and $3,694.28 in attorney’s fees.
¶4. By June 21 of that same year, Brown was served with process; through counsel, he
denied that he had a contractual relationship with the credit union.
¶5. The case sat without activity for nearly two years.
¶6. Then, in April 2019, the credit union filed a motion for summary judgment, arguing
it “ha[d] put on proof that a valid and binding contract existed between Southeast and Aaron
Brown and that Mr. Brown ha[d] broken or breached the contract.”
¶7. Three months later, Brown vehemently responded that “he was never a debtor” to the
credit union. By sworn affidavit, he testified that he was formerly married to a woman
named Eureka Brown and that she—unbeknownst to him—was who applied for the credit
card with Southeast Financial. “She did not consult me about the application for credit nor
did I sign any document related to a credit card application,” he testified. To the extent
Brown was used as a guaranty on the credit card his ex-wife applied for, he believed that
such action was made “fraudulently” because he “did not see, review, or sign an application
for credit” with the plaintiff. In the end, Brown declared that “I am not now nor have I ever
been member of any credit union.”
¶8. The docket sat idle once more, this time for another year and 3 months.
¶9. On November 3, 2020, the DeSoto County Circuit Court Clerk warned the plaintiff
that the case was suffering for want of prosecution for over a year and was subject to
2 dismissal as a result.
¶10. Awakening the credit union, it filed what was styled as a reply to Brown’s response
to its motion for summary judgment. The reply was filed on November 25, 2020.
¶11. But then the case sat untouched for a few more months.
¶12. In March 2021, the credit union set its motion for summary judgment—which was
filed almost two years prior—for a hearing. And two weeks later, it filed a motion to strike
that hearing, averring that “[t]he parties will confer and reset the motion at a later date.”
¶13. The case then sat idle for another year and two months.
¶14. On May 5, 2022, the circuit court clerk warned the plaintiff for a second time that the
case was subject to dismissal due to lack of prosecution. Southeast Financial filed a response
the same day, arguing that its motion for summary judgment was still pending and that the
previous year’s hearing was “struck at [our] request . . . pending settlement negotiations with
the defendant,” but “[t]he parties did not agree to a resolution.” If the trial court denied its
motion for summary judgment, the credit union stated it “will resume active prosecution of
the case[.]”
¶15. Two years and one month later, the circuit court entered an order to show cause.
“Considering the state of the record,” the trial court ruled that counsel for the credit union
was required to be present for a hearing and that “[f]ailure to appear will result in dismissal
of the action.” The hearing was set for June 24, 2024, over 7 years since the complaint was
filed.
¶16. Shortly thereafter, the credit union filed a notice of hearing for its motion for summary
3 judgment set for August 19, 2024.
¶17. On June 26, 2024, the circuit court entered an order of dismissal. “Having failed to
appear at the hearing scheduled for June 24, 2024, and having . . . otherwise fail[ed] to show
good cause why the case should remain on the [c]ourt’s active docket,” the trial court
dismissed the action.
¶18. The same day, Southeast Financial filed a motion to set aside the order of dismissal.
The motion alleged that the parties had “agreed to continue the show cause hearing to August
19, 2024,” when the motion for summary judgment could also be heard. But “[t]he parties
mistakenly failed to enter an agreed continuance and did not appear on June 24, 2024,” the
date set by the circuit court for the show cause hearing.
¶19. The trial court declined to reconsider its order. At the time the trial court was
reviewing the motion to set aside, the lawsuit had been pending over 7 years and 6 months.
“There has been no advancement of litigation by the Plaintiff since July 14, 2019, despite the
Clerk’s requests for dismissal for failure to prosecute in November 2020 and May 2022,” the
trial court recounted. The trial court acknowledged that “good cause may exist for setting
aside the Court’s Order of Dismissal . . . due to the agreement between counsel to continue”
the show cause hearing. But that was not the point; ultimately, the credit union still “failed
[to] establish cause for its failure to prosecute the action, as was demanded by the [c]ourt.”
Accordingly, the trial court denied the motion to set aside the order of dismissal.
¶20. Southeast Financial filed a notice of appeal, and it was assigned to us for review.
DISCUSSION
4 ¶21. The credit union raises two issues on appeal, both essentially centering around the
same point—that its action against Brown should not have been dismissed for want of
prosecution.
¶22. This Court “will not disturb a circuit court’s ruling on a dismissal for want of
prosecution unless it finds an abuse of discretion.” Scott v. UnitedHealthcare of Miss. Inc.,
374 So. 3d 1270, 1275-76 (¶18) (Miss. Ct. App. 2023). “A finding of abuse of discretion
absent a definite and firm identification of clear error violates time-honored
standard-of-review principles.” Id. (quoting Leasy v. SW Gaming LLC, 335 So. 3d 555, 558
(¶7) (Miss. 2022)).
¶23. Mississippi Rule of Civil Procedure 41 allows courts “to dismiss an action
involuntarily for dismissal for want of prosecution as a penalty for dilatoriness.” Scott, 374
So. 3d at 1276 (¶20) (quoting Glass v. City of Gulfport, 271 So. 3d 602, 604 (¶8) (Miss. Ct.
App. 2018)).
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2024-CA-01390-COA
SOUTHEAST FINANCIAL CREDIT UNION APPELLANT
v.
AARON L. BROWN APPELLEE
DATE OF JUDGMENT: 06/26/2024 TRIAL JUDGE: HON. GERALD W. CHATHAM SR. COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: EDRICKE LEMOYNE PEYTON ATTORNEY FOR APPELLEE: PSONYA CELESTE WILSON NATURE OF THE CASE: CIVIL - CONTRACT DISPOSITION: AFFIRMED - 02/10/2026 MOTION FOR REHEARING FILED:
BEFORE WILSON, P.J., McCARTY AND EMFINGER, JJ.
McCARTY, J., FOR THE COURT:
¶1. A credit union sued a credit card holder, alleging he spent almost $15,000 then failed
to pay the accompanying bill. But the defendant testified that he never applied for the credit
card, instead claiming his ex-wife was who incurred the charges. Then, the case went cold.
The circuit court clerk warned the plaintiff it was subject to dismissal. After more time
passed, the trial court found the credit union failed to show good cause as to why its case
should not be dismissed for lack of prosecution.
¶2. Finding the trial court was within its discretion to dismiss the case after it had been
pending for over seven years, we affirm.
BACKGROUND
¶3. On May 1, 2017, Southeast Financial Credit Union sued Aaron Brown, alleging he had “applied for and was approved for a[] credit card” but failed to pay the bill. Southeast
Financial alleged he ultimately owed an “unpaid remaining balance” of $14,893.10. The
credit union sought 11.9% interest per year and $3,694.28 in attorney’s fees.
¶4. By June 21 of that same year, Brown was served with process; through counsel, he
denied that he had a contractual relationship with the credit union.
¶5. The case sat without activity for nearly two years.
¶6. Then, in April 2019, the credit union filed a motion for summary judgment, arguing
it “ha[d] put on proof that a valid and binding contract existed between Southeast and Aaron
Brown and that Mr. Brown ha[d] broken or breached the contract.”
¶7. Three months later, Brown vehemently responded that “he was never a debtor” to the
credit union. By sworn affidavit, he testified that he was formerly married to a woman
named Eureka Brown and that she—unbeknownst to him—was who applied for the credit
card with Southeast Financial. “She did not consult me about the application for credit nor
did I sign any document related to a credit card application,” he testified. To the extent
Brown was used as a guaranty on the credit card his ex-wife applied for, he believed that
such action was made “fraudulently” because he “did not see, review, or sign an application
for credit” with the plaintiff. In the end, Brown declared that “I am not now nor have I ever
been member of any credit union.”
¶8. The docket sat idle once more, this time for another year and 3 months.
¶9. On November 3, 2020, the DeSoto County Circuit Court Clerk warned the plaintiff
that the case was suffering for want of prosecution for over a year and was subject to
2 dismissal as a result.
¶10. Awakening the credit union, it filed what was styled as a reply to Brown’s response
to its motion for summary judgment. The reply was filed on November 25, 2020.
¶11. But then the case sat untouched for a few more months.
¶12. In March 2021, the credit union set its motion for summary judgment—which was
filed almost two years prior—for a hearing. And two weeks later, it filed a motion to strike
that hearing, averring that “[t]he parties will confer and reset the motion at a later date.”
¶13. The case then sat idle for another year and two months.
¶14. On May 5, 2022, the circuit court clerk warned the plaintiff for a second time that the
case was subject to dismissal due to lack of prosecution. Southeast Financial filed a response
the same day, arguing that its motion for summary judgment was still pending and that the
previous year’s hearing was “struck at [our] request . . . pending settlement negotiations with
the defendant,” but “[t]he parties did not agree to a resolution.” If the trial court denied its
motion for summary judgment, the credit union stated it “will resume active prosecution of
the case[.]”
¶15. Two years and one month later, the circuit court entered an order to show cause.
“Considering the state of the record,” the trial court ruled that counsel for the credit union
was required to be present for a hearing and that “[f]ailure to appear will result in dismissal
of the action.” The hearing was set for June 24, 2024, over 7 years since the complaint was
filed.
¶16. Shortly thereafter, the credit union filed a notice of hearing for its motion for summary
3 judgment set for August 19, 2024.
¶17. On June 26, 2024, the circuit court entered an order of dismissal. “Having failed to
appear at the hearing scheduled for June 24, 2024, and having . . . otherwise fail[ed] to show
good cause why the case should remain on the [c]ourt’s active docket,” the trial court
dismissed the action.
¶18. The same day, Southeast Financial filed a motion to set aside the order of dismissal.
The motion alleged that the parties had “agreed to continue the show cause hearing to August
19, 2024,” when the motion for summary judgment could also be heard. But “[t]he parties
mistakenly failed to enter an agreed continuance and did not appear on June 24, 2024,” the
date set by the circuit court for the show cause hearing.
¶19. The trial court declined to reconsider its order. At the time the trial court was
reviewing the motion to set aside, the lawsuit had been pending over 7 years and 6 months.
“There has been no advancement of litigation by the Plaintiff since July 14, 2019, despite the
Clerk’s requests for dismissal for failure to prosecute in November 2020 and May 2022,” the
trial court recounted. The trial court acknowledged that “good cause may exist for setting
aside the Court’s Order of Dismissal . . . due to the agreement between counsel to continue”
the show cause hearing. But that was not the point; ultimately, the credit union still “failed
[to] establish cause for its failure to prosecute the action, as was demanded by the [c]ourt.”
Accordingly, the trial court denied the motion to set aside the order of dismissal.
¶20. Southeast Financial filed a notice of appeal, and it was assigned to us for review.
DISCUSSION
4 ¶21. The credit union raises two issues on appeal, both essentially centering around the
same point—that its action against Brown should not have been dismissed for want of
prosecution.
¶22. This Court “will not disturb a circuit court’s ruling on a dismissal for want of
prosecution unless it finds an abuse of discretion.” Scott v. UnitedHealthcare of Miss. Inc.,
374 So. 3d 1270, 1275-76 (¶18) (Miss. Ct. App. 2023). “A finding of abuse of discretion
absent a definite and firm identification of clear error violates time-honored
standard-of-review principles.” Id. (quoting Leasy v. SW Gaming LLC, 335 So. 3d 555, 558
(¶7) (Miss. 2022)).
¶23. Mississippi Rule of Civil Procedure 41 allows courts “to dismiss an action
involuntarily for dismissal for want of prosecution as a penalty for dilatoriness.” Scott, 374
So. 3d at 1276 (¶20) (quoting Glass v. City of Gulfport, 271 So. 3d 602, 604 (¶8) (Miss. Ct.
App. 2018)). Pursuant to Rule 41(d), after the clerk warns a party that “there has been no
action of record during the preceding twelve months” and then “action of record is not taken
or good cause is not shown, the court shall dismiss each such case without prejudice.”
MRCP 41(d). It is also well-established that “the power to dismiss an action for want of
prosecution is part of a trial court’s inherent authority.” Miss. Dep’t of Hum. Servs. v.
Guidry, 830 So. 2d 628, 631 (¶9) (Miss. 2002).
¶24. To find that a dismissal for lack of prosecution is proper, “[t]he standard is whether
there is a clear record of delay or contumacious conduct by the plaintiff.” Scott, 374 So. 3d
at 1280 (¶41) (emphasis added); see MRCP 41(b). “Delay alone may be sufficient to warrant
5 a dismissal.” Id. at 1280 (¶41) (emphasis added) (quoting Leasy, 335 So. 3d at 559 (¶10)).
In short, “[f]actors other than delay are not required.” Id.
¶25. Recently, this Court found no error when a circuit court dismissed a case for failure
to prosecute in Smith v. West, 385 So. 3d 1276, 1279-80 (¶¶12, 14) (Miss. Ct. App. 2024).
We found “several periods of inaction throughout [that] case, which demonstrate[d] a clear
record of delay.” Id. Specifically, “The first delay was a nine-month period of inaction from
August 2015 to May 2016”; “[t]he second delay was a fifteen-month period of inaction from
February 2018 to May 2019”; the “third period of inaction [was] for almost two years”; and
“[t]he fourth delay was a fifteen-month period of inaction from August 2021 to November
2022[.]” Id. at 1279 (¶12).
¶26. In affirming the dismissal, we reminded the Bar of the longstanding rule that “the
power to dismiss for failure to prosecute is an inherent power in any court of law or equity
and has been regarded as a means necessary to control the court’s docket and promote the
orderly expedition of justice.” Id. at (¶14) (quotation marks and citations omitted).
¶27. Just as in Smith, here, there have been long periods of complete inaction. The first
delay was nearly two years after the complaint and answer were filed, between June 2017 and
April 2019. Then the plaintiff filed a motion for summary judgment. After Brown
responded, the case again went idle for 15 months. After the clerk issued a warning letter
that the case was subject to dismissal, there was some brief activity after which the case again
went idle for another 14 months. After a second clerk’s notice, the trial court ordered the
plaintiff to appear at a show cause hearing to demonstrate why the case should not be
6 dismissed.
¶28. Between filing the complaint and the order of dismissal, this routine breach of contract
case sat on the docket for 2,613 days, or 7 years, 1 month, and 25 days. Per Scott, this
dilatory conduct alone suffices as grounds for dismissal.
¶29. Furthermore, we are not persuaded by the credit union’s argument that it had an
agreement with defendant’s counsel to continue the show cause hearing. The trial court
ordered the plaintiff to appear and give reasons why the case should not be dismissed. The
plaintiff did not file a motion to continue or any pleading to continue or delay the hearing.
¶30. Likewise, we are not persuaded that it is enough that Southeast Financial had a
pending motion for summary judgment. The credit union filed this motion on April 8, 2019.
Yet the motion was not set for a hearing until years later, in June 2024, and only after the
trial court set a show cause hearing for dismissal. The mere fact that it was filed means little
since “[t]he oft-cited rule remains that it is the duty of the movant to bring his motion to the
attention of the trial court and obtain a ruling thereon, and his failure to do so constitutes a
waiver of the motion.” Bonds v. State, 938 So. 2d 352, 358-59 (¶20) (Miss. Ct. App. 2006).
¶31. It is a bedrock principle of the Judiciary that a trial court has the authority to control
its own docket. Our review of the trial court’s decision to dismiss this case for lack of
prosecution is limited by the discretion afforded trial courts in the management of their
dockets. We find it notable that the plaintiff utterly failed to appear at a show cause hearing
set by the trial court. Given the repeated periods of total inaction and how long this case sat
on the docket with no activity, we find no abuse of discretion.
7 CONCLUSION
¶32. For the reasons set out above, we affirm the trial court’s dismissal for want of
¶33. AFFIRMED.
BARNES, C.J., CARLTON AND WILSON, P.JJ., WESTBROOKS, McDONALD, LAWRENCE, EMFINGER, WEDDLE AND LASSITTER ST. PÉ, JJ., CONCUR.