‹ Supreme Court Blog
State ex rel Johnson and Freedman, LLC v. McGraw

State ex rel Johnson and Freedman, LLC v. McGraw

Case No. 
Type of Proceeding: 
Writ of Prohibition

Did the trial court commit clear legal error in denying a motion to dismiss for failure to prosecute under Rule 41?


Kenneth Coe obtained a mortgage loan from Home Loan Corporation (later Homecomings).  Coe became delinquent and the property was sold at a trustee’s sale.  Petitioners, representing Homecomings, then brought eviction proceedings.  Because of an error in the mortgage papers, the writ issued by the court did not, in fact, reference Coe’s property, but another property belonging to Respondent, Nadine R. Rice.  Without her knowledge or consent, Respondent’s locks were changed and the contents of Respondent’s home were removed.  Respondent filed a complaint against petitioner in May, 2010 alleging trespass, abuse of process, negligence and other claims.

Respondent’s claims remained on the trial court’s docket. However, because of an intervening bankruptcy and other circumstances, the claims were not prosecuted.  In February, 2019, Petitioners filed a motion under Rule 41 seeking to dismiss the complaint due to a failure to prosecute.  The trial court denied the motion, citing the bankruptcy stay and a lack of any prejudice.  Petitioners do not appeal the trial court’s order but, instead, seek relief via prohibition.

Positions of the Parties: 


Petitioners point to the fact that “a period of approximately 91 months” passed between the filing of Respondent’s complaint and the filing of Petitioner’s motion to dismiss.  According to Petitioners, this “tremendous passage of time…highlights the circuit court’s clear legal error” in denying Petitioner’s motion.  Furthermore, Petitioners argue that the bankruptcy stay had no application to Respondent’s claims and, therefore, the trial court was clearly wrong in citing the stay as good cause for Respondent’s failure to prosecute.


Respondent emphasizes the trial court’s discretion in ruling on a Rule 41 motion.  In fact, Respondent argues that the Supreme Court has never “overturn[ed] a trial court’s exercise of discretion in refusing to dismiss a case for alleged failure to prosecute.”  Respondent also points out that she prosecuted claims against Homecomings in bankruptcy court during the course of the stay, and that multiple discussions occurred after the bankruptcy was concluded in an effort to get Respondent’s claims against petitioners “back on track.”  Thus, the trial court did not abuse its discretion.

Probable Impact: 

This case appears on the Rule 19 docket so we should not expect to see any new syllabus law.  Instead, the Supreme Court will apply settled law to the facts presented.  Because of the discretion given under Rule 41, it is unlikely that the trial court’s rulings will be disturbed through this prohibition proceeding.

Leave a Reply

Filtered HTML

  • Lines and paragraphs break automatically.

Plain text

  • No HTML tags allowed.
  • Web page addresses and e-mail addresses turn into links automatically.
  • Lines and paragraphs break automatically.


Contact us today to speak with a knowledgeable attorney. We offer free initial consultations and bill on a contingent fee basis — you won’t have to pay us a fee unless we collect money for you.