IN THE SUPREME COURT OF MISSISSIPPI
NO. 2004-CA-02488-SCT
JOHN BECK, JR. AND KIM BECK
v.
MARIO SAPET, JR. d/b/a SAPET DESIGN &
CONSTRUCTION
DATE OF JUDGMENT: 12/10/2004
TRIAL JUDGE: HON. JERRY O. TERRY, SR.
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS: JAMES (JAY) R. FOSTER
ATTORNEYS FOR APPELLEE: RICHARD EUGENE CASSADY
W. EDWARD HATTEN, JR.
NATURE OF THE CASE: CIVIL - CONTRACT
DISPOSITION: AFFIRMED - 09/14/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
COBB, PRESIDING JUSTICE, FOR THE COURT:
¶1. John Beck, Jr. and wife Kim Beck filed a complaint in the Harrison County Circuit
Court, Second Judicial District, against Mario Sapet, Jr. d/b/a Sapet Design and Construction,
citing numerous claims arising out of a contract whereby Sapet was to construct their new
home. The Becks sought $300,000 in actual damages, $100,000 in punitive damages, and
$75,000 in attorney fees. Sapet timely responded with his answer and defenses and applied for
an order to proceed with mediation pursuant to the terms of the contract and a stay of
proceedings while the matter was submitted to mediation.
¶2. The trial court ultimately granted Sapet’s Motion to Dismiss with Prejudice on
November 3, 2004, on the basis of the Becks’ repeated failure to timely provide full and
complete supplemental responses to written discovery requests. The last failure, which
triggered the dismissal, was the Becks’s failure to comply with the court’s October 19, 2004,
order to supplement discovery within 10 days of the court’s order.
¶3. The Becks’ Motion for Reconsideration and for Relief from Judgment was denied on
December 10, 2004, and they timely appealed, stating the following issues: (1) they provided
every document related to this case, and (2) they properly answered the interrogatories.
¶4. After due consideration, we affirm the judgment of the trial court.
FACTS
¶5. On September 1, 1999, the Becks entered into a written construction contract with
Sapet for the construction of a large new home, at a cost of more than $1 million. Because the
work was not completed within the stated time of “approximately 12 months”, and in the
manner which the Becks expected under the terms of the contract, they filed a complaint
against Sapet, on April 1, 2003, for breach of the construction contract, conversion of funds,
detrimental reliance, negligence in the construction, gross negligence, breach of actual and
implied warranty of fitness and for an accounting. The following is an abbreviated time line
of the pertinent events in the trial court:
04/01/2003 Complaint filed.
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06/06/2003 Sapet filed his answer and defenses.
06/10/2003 Sapet filed notice of discovery to the court that interrogatories and requests for
productions of documents had been propounded to the Becks.
08/29/2003 The Becks filed an unopposed motion to extend time for discovery and hold the
case in inactive status because John Beck was to undergo heart surgery.
11/14/2003 Letter from Sapet’s counsel to the Becks’ original attorney, inquiring as to the
status of John Beck’s health and his availability for deposition, and noting the
need to get the Becks’ written responses to the outstanding discovery.
12/19/2003 Similar letter pointing out that no response was received to the earlier letter and
asking counsel for a response as soon as possible.
01/09/2004 A third similar letter noting no response to past two letters and saying would
like to hear something as soon as possible.
01/26/2004 Sapet files his first motion to compel, stating “recent inquiries into the status
of [plaintiff’s] health and ability to proceed with discovery and litigation of this
lawsuit that they filed have gone unanswered.”
05/03/2004 The Becks’ original counsel filed a Motion to Substitute Counsel, requesting the
court to allow Jay Foster to replace him as counsel for the Becks. Neither of the
Becks’ counsel responded to the motion to compel, nor did Foster, as the new
attorney, request additional time to acclimate himself to the case or to answer
the discovery.
05/17/2004 Trial court grants Sapet’s January 26, 2004, motion to compel discovery. This
order stated the Becks must provide complete responses to discovery within 15
days or face sanctions.
05/19/2004 Order entered allowing substitution of counsel for the Becks and naming Foster.
Still no request was made by Foster for additional time to complete responses
to discovery.
06/01/2004 Deadline for complete responses to discovery passes without response.
06/09/2004 Sapet’s counsel writes Foster to advise that responses are now overdue and a
Motion to Dismiss will be filed if responses are not filed by June 14, together
with potential dates for the Becks to be deposed.
06/11/2004 Foster faxed the Becks’ unsigned draft responses to discovery, but did not
follow up with final, signed responses or request additional time to do so.
06/14/2004 Sapet’s counsel writes to Foster thanking him for the draft discovery responses
and requesting that, when they are completed and signed, Foster needs to have:
supplemented Interrogatory 3; had a copy made of the audio and video tapes
identified in Interrogatory 4 (Sapet to pay cost); copied other audio and video
tapes, if any, which are referenced in interrogatories 5, 6, and 7; supplement No.
12 (Sapet to pay cost); and supplemented No. 13 to indicate what is contended
in the “approximately $250,000" in damages. Further Sapet’s attorney asked
when he could come and inspect and copy the documents referenced in nos. 14,
18, 19, and 21 of the Request for Production. Finally he reminded Foster that
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the answer to Nos. 15 and 16, saying “previously provided” was incorrect, as he
had received nothing in response.
06/30/2004 Still not having received the requested completed and signed responses nor the
other productions, Sapet filed a motion to dismiss, or alternatively for
sanctions, because timely and proper response from the Becks to the May 17
order had not been received. At this point, more than one year had passed since
the Interrogatories and Requests for Production were first served on the Becks.
07/02/2004 The Becks responded to Sapet’s discovery requests. A number of the answers
simply said “The Plaintiff has boxes of documents that are available for copying
at the office of Jay Foster.”
10/07/2004 Sapet files his second motion to compel and for sanctions, arguing that the
Becks’ responses to Sapet’s interrogatories and requests for documents were
still incomplete.
10/19/2004 Trial court once again grants Sapet’s motion to compel, requiring the Becks to
supplement their responses to Sapet’s requests for interrogatories numbers 2,
3, 4, 12, and 13, as well as Sapet’s request for documents numbers 3, 4, 5, 6, 7,
and 10, to be signed by the Becks “under oath, and delivered to [Sapet’s] counsel
within 10 days of the entry of this Order, failing which the case will be
dismissed with prejudice without further notice.”
10/20/2004 Sapet’s counsel sends Foster a four page URCCC 4.04 good faith letter, very
specifically stating each response which was considered incomplete and why,
and stating that they “really would rather resolve this matter without having to
file another Motion to Compel.”
10/24/2004 Foster responds with terse letter, defending his actions as to each response.
10/29/2004 Becks do not provide any supplements, but rather, on the 10th day, filed a motion
to reconsider with the trial court.
11/03/2004 After a hearing on the motion to reconsider, the trial court entered its final
judgment dismissing the case with prejudice because the Becks did not comply
with the October 19, 2004, order compelling discovery. However, the trial court
did not rule on the motion to reconsider.
12/01/2004 Becks filed a motion for relief from judgment with the trial court.
12/10/2004 Trial court denied the Becks’ motion to reconsider and motion for relief from
judgment.
DISCUSSION
¶6. The sole issue raised on appeal is whether the trial court erred in dismissing the case
with prejudice. The standard of review this Court applies to a trial court’s dismissal of an
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action with prejudice as a result of a discovery violation is abuse of discretion. Salts v. Gulf
Nat’l Life Ins. Co., 872 So. 2d 667, 670 (Miss. 2004). Trial courts have considerable
discretion in discovery matters, and their decisions will not be overturned unless there is an
abuse of discretion. Robert v. Colson, 729 So. 2d 1243, 1245 (Miss. 1999). Further, this
Court looks to the following factors to determine if a dismissal with prejudice is the proper
remedy for discovery violations: (1) whether the discovery violation resulted from willfulness
or an inability to comply; (2) whether the deterrent value of Rule 37 could not have been
achieved through lesser sanctions; (3) whether the other party’s trial preparation has been
prejudiced; (4) whether the failure to comply is attributable to the party itself, or their
attorney; and (5) whether the failure to comply was a consequence of simple confusion or a
misunderstanding of the trial court’s order. Pierce v. Heritage Props. Inc., 688 So. 2d 1385,
1389 (Miss. 1997). This Court only reverses if it has a definite and firm conviction that the
court below committed a clear error of judgment in the conclusion it reached upon weighing
of relevant factors. Caracci v. Int’l Paper Co., 699 So. 2d 546, 556 (Miss. 1997).
¶7. This Court has stated “failure to make or cooperate in discovery should first be resolved
by making a motion in the proper court requesting an order compelling such discovery.”
Robert, 729 So. 2d at 1247 (citing M.R.C.P. 37(a)(2)). If the party fails to comply with this
first order to compel, the trial judge may then sanction that party in accordance with M.R.C.P.
37(b), which includes dismissing the case with prejudice. Id. We have also held that:
dismissal is to be used as a sanction only as a last resort. “Lower courts should
be cautious in either dismissing a suit or pleadings or refusing to permit
5
testimony . . . . The reason for this is obvious. Courts are courts of justice not
of form. The parties should not be penalized for any procedural failure that may
be handled without doing violence to court procedures.”
Id. (quoting Clark v. Miss. Power Co., 372 So. 2d 1077, 1080 (Miss. 1979)).
¶8. In the present case, the trial court entered its first order to compel on May 17, 2004,
because the Becks had not yet responded to any of the discovery requests (interrogatories and
requests for documents) propounded to them by Sapet almost a year earlier, on June 9, 2003.1
This order was violated because the Becks did not answer Sapet’s discovery requests until July
2, 2004, well outside of the 15 days required by that order. The Becks then violated the trial
court’s second order to compel entered on October 19, 2004, which gave them 10 days to
supplement their discovery responses.
¶9. The Becks’ attorney claims he did not attend the hearing that resulted in the court’s
October 19, 2004, order to supplement discovery because he did not receive notice.
However, Sapet’s attorney told the judge at the December 6, 2004, hearing on the Motion to
Reconsider that he sent notice to the Becks’ attorney and also referenced the hearing in a
subsequent letter he sent to their attorney, and this was not disputed.2
¶10. Although the Becks filed a motion to reconsider on the tenth day after the order was
entered, they failed to obtain a ruling on it and failed to supplement discovery within the time
1
The responses were due within 30 days of service, M.R.C.P. 33(b)(3) & 34(b), and
all discovery should have been completed within ninety days from service of Sapet’s
answer, URCCC 4.04(A).
2
The trial court docket reflects that the notice of the hearing was filed on October 6,
2004.
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period specified in the order. The only reasons given for waiting until the tenth day to file was
that the judge was unavailable and that an agreement had been reached with Sapet’s attorney
regarding when the Becks would supplement discovery. In response to this argument the trial
court stated:
there was an attempt to ex parte notify the court by way of a faxed letter. If I’m
not mistaken, however, by the time the Court received that fax, the order had
already been entered, because I was in Jackson County at the time that the order
was entered because I started a trial over there on November the 1st, as I recall,
that took all week to try.
So in any event, notice was fairly given that dismissal would be had if it had not
been responded to within the ten days of the order, that order having been
entered more than ten days prior to the submission of the order of dismissal to
the Court on October the 29th, I believe it was. The motion to set aside the
order is overruled.
¶11. This Court has adhered to the rule that filing a motion is not a release from a trial
court’s order unless the motion is heard and a decision is made. Salts, 872 So. 2d at 672.
¶12. Even if the judge was busy, some effort should have been made to supplement discovery
and deliver the responses to Sapet’s counsel within ten days or to document the alleged
agreement to the contrary. Objections to specific items or information requested by Sapet
then could have been subsequently raised with the trial judge, which is obviously safer and
more appropriate than totally violating the trial court’s order, even if an undisputed agreement
has been reached.
Our trial judges are afforded considerable discretion in managing the pre-trial
discovery process in their courts, including the entry of scheduling orders
setting out various deadlines to assure orderly pre-trial preparation resulting in
timely disposition of the cases. Our trial judges also have a right to expect
compliance with their orders, and when parties and/or attorneys fail to adhere
7
to the provisions of these orders, they should be prepared to do so at their own
peril.
Bowie v. Montfort Jones Mem’l Hosp., 861 So. 2d 1037, 1042 (Miss. 2003) (citations
omitted).
¶13. The present case provides an excellent example of the proper way to document the
efforts made to obtain and provide adequate discovery responses. The record establishes a
pattern of consistent follow-up regarding pending requests and a clear paper trail upon which
the trial court and the appellate court can rely when considering the factors set forth in Pierce,
as follows:
First, dismissal is authorized only when the failure to comply with the court's
order results from wilfulness or bad faith, and not from the inability to comply.
Dismissal is proper only in situations where the deterrent value of Rule 37
cannot be substantially achieved by the use of less drastic sanctions. Another
consideration is whether the other party's preparation for trial was substantially
prejudiced. Finally, dismissal may be inappropriate when neglect is plainly
attributable to an attorney rather than a blameless client, or when a party's simple
negligence is grounded in confusion or sincere misunderstanding of the court's
orders.
Pierce, 688 So. 2d at 1389. The record clearly contains indications of the tone and substance
important to determine willfulness, or inability to comply. Further, it provides insight for
determination of whether the failure to comply is attributable to the party, or the attorney, and
whether the failure to comply was a consequence of simple confusion or a misunderstanding
of the court’s order. Inclusion of an analysis of all the Pierce factors in the trial court’s order
would have been helpful to this Court and is preferred, but not required.
8
¶14. We see nothing in the present case which demonstrates that the trial court abused its
discretion and that the dismissal was unwarranted. Although the result may be harsh for the
Becks, the record before us simply does not provide sufficient reasons for this Court to find
the trial court abused its discretion by granting the dismissal.
CONCLUSION
¶15. We afford great deference to a trial court’s discretion in resolving discovery disputes.
We find no abuse of discretion in the trial court’s dismissal of this case. Therefore, we affirm
the trial court’s judgment.
¶16. AFFIRMED.
WALLER, P.J., CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ.,
CONCUR. EASLEY, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED
BY SMITH, C.J. DIAZ, J., NOT PARTICIPATING.
EASLEY, JUSTICE, DISSENTING:
¶17. I must respectfully dissent from the majority’s affirmance of the trial judge’s judgment
dismissing the Becks’ case with prejudice. On this record, the trial judge abused his discretion
and should have imposed an alternate form of sanction in place of the dismissal of the case
with prejudice. Such a harsh sanction to the Becks is not warranted in this case, and other
alternative measures to dismissal of the Becks’ case with prejudice were not first considered
by the trial judge. The record does not indicate that the trial judge even considered alternative
sanctions such as imposing fines and sanctions against the Becks’ attorney, James (Jay) R.
9
Foster, where the Becks were blameless in their attorney’s alleged failure to provide
discovery. Therefore, I must respectfully dissent.
¶18. In Bowie v. Montfort Jones Mem’l Hosp., 861 So. 2d 1037, 1042 (Miss. 2003), we
held:
Our trial judges are afforded considerable discretion in managing the pre- trial
discovery process in their courts, including the entry of scheduling orders
setting out various deadlines to assure orderly pre-trial preparation resulting in
timely disposition of the cases. Our trial judges also have a right to expect
compliance with their orders, and when parties and/or attorneys fail to adhere
to the provisions of these orders, they should be prepared to do so at their own
peril.
However, dismissal with prejudice is a drastic and harsh punishment that should be reserved
for the most extreme and egregious situations, usually where clear delay and lesser sanctions
are present. See M.R.C.P. 41(b) cmt.; see also Peoples Bank v. D’Lo Royalties, Inc., 206 So.
2d 836, 837 (Miss. 1968); Vosbein v. Bellias, 866 So. 2d 489, 493 (Miss. Ct. App. 2004).
“[D]ismissal for failure to comply with an order of the district court is appropriate only where
there is a clear record of delay or contumacious conduct and lesser sanctions would not serve
the best interests of justice.” Wallace v. Jones, 572 So. 2d 371, 376 (Miss. 1990) (citing
McGowan v. Faulkner Concrete Pipe, 659 F. 2d 554, 558 (5th Cir. 1981); Trakas v. Quality
Brands, Inc., 245 U.S. App. D.C. 165, 759 F.2d 185, 187 (D.C. Cir. 1985)).
¶19. On May 17, 2004, the trial court entered its first order to compel because the Becks
had not yet responded at all to the discovery requests propounded to them by Sapet. The
Becks’ attorney did not answer Sapet’s discovery requests within the fifteen day time period
10
stipulated in the order. The trial judge entered a second order to compel on October 19, 2004,
providing the Becks ten days to supplement their allegedly inadequate discovery responses
after conducting a hearing on the same day.
¶20. The Becks’ attorney contends that he did not attend the hearing that resulted in the order
to supplement discovery since he failed to receive notice of the hearing. Sapet’s attorney
maintains that he sent notice of the hearing to the Becks’ attorney.
¶21. The Becks’ attorney filed a motion to reconsider the order entered on October 19,
2004, ten days after the order was entered. The Becks’ attorney asserts that he waited ten days
to file because the trial judge was unavailable and the parties had reached an agreement
regarding when the Becks would supplement discovery. The trial judge acknowledged that the
Becks’ attorney had tried to contact him regarding the order and overruled the motion to set
aside the order, stating:
[T]here was an attempt to ex parte notify the court by way of a faxed letter. If
I’m not mistaken, however, by the time the Court received that fax, the order had
already been entered, because I was in Jackson County at the time that the order
was entered because I started a trial over there on November the 1st, as I recall,
that took all week to try.
So in any event, notice was fairly given that dismissal would be had if it had not
been responded to within the ten days of the order, that order having been
entered more than ten days prior to the submission of the order of dismissal to
the Court on October the 29th, I believe it was. The motion to set aside the
order is overruled.
¶22. It is well settled that the filing of a motion does not release one from a trial court’s
order unless the motion is heard and a decision is rendered by the court. See Salts v. Gulf
11
Nat’l Life Ins. Co., 872 So. 2d 667, 672 (Miss. 2004). Likewise, the whole discovery process
in this case certainly leaves something to be desired. Without question, the Becks’ attorney
failed to comply with the discovery order and failed to obtain an extension of time or have the
motion to reconsider heard or set before the ten days expired. However, dismissal with
prejudice of the Becks’ case as the sanction does not fit the infraction as it was the actions of
the Becks’ attorney and not that of the Becks themselves. Consequently, the trial judge did
abuse his discretion in dismissing the case with prejudice.
¶23. Here, several facts weigh in favor of finding the dismissal with prejudice to be
disproportionately harsh for the discovery violations in this case. The record is unclear as why
the Becks’ responses to the requests for documents were inadequate and the Becks’ responses
to interrogatories were insufficient. The Becks’ attorney argues that there was no wilful
refusal to comply with the discovery requests.
¶24. The Becks’ attorney contends that the audio and video tapes had already been furnished
to Sapet’s attorney months before October 19, 2004. The tapes had been picked up by Sapet’s
attorney from the company that had made the copies for the Becks. The record excerpts
contain a letter dated August 26, 2004, from the Becks’ attorney’s paralegal to Sapet’s attorney
supplementing the video tape requested in the request for documents.
¶25. The written documents were delivered to a printing company for copying. On August
3, 2004, the Becks’ attorney’s paralegal faxed a letter to Sapet’s attorney that the documents
12
had been copied and were ready to be picked up at the print shop. Sapet’s attorney picked up
the documents prior to October 19, 2004.
¶26. As to the interrogatories, the Becks’ attorney contends that the requests were answered
to the best of their ability. He further provides that interrogatory request number two
requesting information as to all persons that had knowledge of the allegations was satisfied by
providing a list of twenty-seven names. According to the Becks’ attorney, the Becks were
unaware of the name of every contractor or subcontractor that had been hired by Sapet to work
on the home. Further, the Becks’ attorney argues that interrogatory request number three
regarding expert witnesses was also satisfied because the response provided that the Becks
may call the witnesses listed in response to interrogatory number two as expert witnesses.
Likewise, the response to the requests for documents number one and two provided that no
decision regarding who would be called as an expert had been reached at that time.
¶27. The Becks’ attorney states that approximately 1,838 pages of documents were provided
to Sapet months before the October 19, 2004, order was entered. Likewise, at the hearing on
the motion to reconsider, the Becks’ attorney informed the trial judge that on October 8, 2004,
he had faxed Sapet’s attorney advising him that everything requested in discovery had already
been provided, and the Becks had nothing left to produce. However, he received no response
from the fax. On October 12, 2004, the Becks’ attorney again faxed Sapet’s attorney that
everything had been supplied except as to interrogatory number twelve regarding a witness,
13
Rich Cassidy, which was supplemented by the faxed letter. Again, the Becks’ attorney received
no response.
¶28. After not receiving any response, the Becks’ attorney telephoned Sapet’s attorney.
According to the Becks’ attorney, an agreement was reached with Sapet’s attorney regarding
the discovery requested. He subsequently confirmed the conversation with Sapet’s attorney
regarding the discovery by fax.
¶29. The Becks’ attorney did not attend the October 19, 2004, hearing which resulted in the
trial judge entering the order to compel. According to the Becks’ attorney, he did not receive
notice of the hearing, and he was in court in Gulfport, Mississippi, at the time of the hearing
which took place in Biloxi, Mississippi. Therefore, the trial judge only heard arguments from
Sapet’s attorney on this issue.
¶30. As previously discussed, the Becks’ attorney filed a motion for reconsideration on the
tenth day. According to the Becks’ attorney, he did not file the motion for reconsideration
before the tenth day because the trial judge was out of town presiding over another case and
unavailable to hear the reconsideration, and Sapet’s attorney was likewise unavailable until
then.
¶31. Nothing in the record suggests that the Becks themselves did anything to willfully
violate the court’s orders or to prolong the case unnecessarily. On the contrary, John Beck
underwent heart surgery and was unable to participate in this litigation for some time.
14
According to the Becks’ attorney, he had already provided everything to Sapet’s attorney that
he had to give in discovery.
¶32. The trial judge’s judgment to dismiss with prejudice was the first sanction the trial
judge imposed against the Becks. The Becks’ attorney at the hearing on the motion to
reconsider stated:
You signed the motion to dismiss obviously thinking that, you know, [the Becks’
attorney] is not answering discovery . . . As I stand before you today, I do not
have anything left to give them, and I haven’t had anything left to give them for
some number of months now. So I do not understand, especially in light of the
fact that [Sapet’s attorney] and I got on the phone and agreed as to what I was
going to do. I did exactly what he asked me to do, and then he turns and sends
Your Honor an order dismissing the case.
¶33. Further, a review of our legal precedent supports reversal of the trial judge’s judgment
as an abuse of discretion. In Pierce v. Heritage Props., Inc, 688 So. 2d 1385, 1387 (Miss.
1997), this Court affirmed the trial court's imposition of dismissal as a discovery sanction
under Rule 37(b)(2) & (e) and the court's inherent power to protect the integrity of the judicial
process where the plaintiff willfully concealed the fact that another person was present when
she was injured. The plaintiff in Pierce submitted false responses to various discovery
requests and false deposition testimony. Id. at 1390. Pierce admitted her misconduct only
after she discovered the defendant uncovered the truth. Id.
¶34. This Court in Pierce provided guidance in evaluating the appropriateness of dismissal
of an action as a sanction:
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First, dismissal is authorized only when the failure to comply with the court's
order results from wilfulness or bad faith, and not from the inability to comply.
Dismissal is proper only in situations where the deterrent value of Rule 37
cannot be substantially achieved by the use of less drastic sanctions. Another
consideration is whether the other party's preparation for trial was substantially
prejudiced. Finally, dismissal may be inappropriate when neglect is plainly
attributable to an attorney rather than a blameless client, or when a party's simple
negligence is grounded in confusion or sincere misunderstanding of the court's
orders.
Pierce, 688 So. 2d at 1389. Here, nothing in the record demonstrates that the Becks
themselves contributed to the delays. Further, there is no evidence present to support that the
Becks acted in bad faith in not complying with the trial judge’s orders.
¶35. In Scoggins v. Ellzey Beverages, Inc., 743 So. 2d 990, 997 (Miss. 1999), this Court
affirmed the trial court’s dismissal with prejudice because “Scoggins wilfully submitted false
answers to interrogatories and knowingly did not answer deposition questions truthfully.”
Here, nothing in the record demonstrates that the Becks submitted any false answers.
¶36. This Court in Wood v. Biloxi Public School District, 757 So. 2d 190 (Miss. 2000),
reversed the trial court's dismissal finding that the case was distinguishable from Scoggins. In
Wood, the “trial court's ruling [to dismiss the case was] based upon a single alleged untruthful
response in an interrogatory.” Id. at 191 (emphasis added). This Court reversed the trial judge
because it was “not established that Wood knowingly made a false statement and it [was]
certainly not established that he submitted a pattern of false responses under the facts here, and
apply[ing] our precedent case law, other more appropriate sanctions should be considered
by the lower court.” Id. at 191-92 (emphasis added).
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¶37. In Ill. Cent. R.R. v. Winters, 815 So. 2d 1168, 1181 (Miss. 2002), overruled on other
grounds, Cooper Tire & Rubber Co. v. McGill, 890 So. 2d 859, 867 (Miss. 2004), this Court
required Illinois Central to pay expenses for violating the trial court’s order to compel. This
Court held:
Not until Monday afternoon, the day the depositions were to commence at 9
a.m. in Chicago, did Illinois Central file a motion to reconsider the order.
Instead of attempting to comply with the order, Illinois Central clung to its
arguments that these executives could not be deposed, or that discovery should
not be extended, even though the trial court continued to reject these arguments.
815 So. 2d at 1181. As in the case at hand, Winters involved a discovery violation as opposed
to false responses discussed in Scoggins and Wood. In Winters, Illinois Central was ordered
to pay expenses as the sanction in a factual situation much more severe than the facts in this
case which resulted in the ultimate sanction of the Becks’ case being dismissed with prejudice.
¶38. For these reasons, the trial judge’s dismissal with prejudice of the Becks case was too
harsh and a lesser sanction is appropriate. I find that the trial judge abused his discretion.
Accordingly, I would reverse the trial judge’s judgment and remand the case to the Circuit
Court of Harrison County to impose alternative sanctions instead of the dismissal of the
Becks’ case with prejudice.
SMITH, C.J., JOINS THIS OPINION.
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