                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 93-CA-00241-SCT
STEPHANIE TYNER PIERCE
v.
HERITAGE PROPERTIES, INC., AMERICAN FAN
RETAIL ASSOCIATES, INC., AND HALSEY
ENTERPRISES COMPANY, LTD.

DATE OF JUDGMENT:                              2-12-93
TRIAL JUDGE:                                   HON. ROBERT LEWIS GIBBS
COURT FROM WHICH APPEALED:                     HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                       NATIE CARRAWAY
                                               JOHN D. PRICE
ATTORNEYS FOR APPELLEES:                       ROBERT C. BOYD
                                               WILLIAM A. PATTERSON
                                               GARY K. SILBERMAN
                                               JOHN P. SNEED
                                               JOSEPH A. ZIEMIANSKI
NATURE OF THE CASE:                            CIVIL - PERSONAL INJURY
DISPOSITION:                                   AFFIRMED - 2/27/97
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                3/20/97




     BEFORE PRATHER, P.J., PITTMAN AND McRAE, JJ.


     McRAE, JUSTICE, FOR THE COURT:




¶1. This is an appeal of an order of the Circuit Court of Hinds County dismissing Stephanie Tyner
Pierce's lawsuit against Heritage Properties, Inc. (Heritage), American Fan Retail Associates, Inc.
(American), and Halsey Enterprises Company, Ltd. (Halsey). After an eight-day trial, a jury returned
a verdict in the amount of $500,000 for Pierce against the appellees. However, the trial court
overturned the jury verdict based on improper closing argument by Pierce's counsel. The court
ordered a new trial, but during discovery, it was revealed that Pierce had given false testimony and
withheld information. As a result, the trial court dismissed Pierce's cause of action with prejudice.
¶2. Pierce objected, claiming that the court abused its discretion in dismissing her case with prejudice.
The defendants/appellees maintained that Pierce's presentation of false testimony under oath was
sufficient to justify a dismissal of her case. Because we find that the trial court's sanction against
Pierce was warranted to protect the integrity of the judicial process due to Pierce's abuse of the
discovery process and presentation of false testimony, we hereby affirm the trial order of dismissal
with prejudice.

                                                 FACTS

¶3. The appellant, Stephanie Tyner Pierce, was renting an apartment at Northtown Apartments in
Jackson, Mississippi in February of 1987. On February 19, 1987, Pierce was in bed with Read Bush
when a ceiling fan located above her bed fell onto Pierce from the place where it had been installed in
the ceiling, causing her personal injuries.

¶4. Pierce sued several defendants, including Heritage, American, and Halsey, under theories of
negligence, breach of warranty, and strict liability. After an eight-day trial in September 1991, a jury
returned a verdict in favor of Pierce against Heritage, American, and Halsey, in the amount of $500,
000 for personal injury, primarily a knee injury, and dismissed the other defendants, Stuart C. Irby
Company, Heritage Construction Company, Inc. and Milner Electric Company, Inc. The remaining
three defendants filed motions for judgment notwithstanding the verdict, and motions for a new trial,
based on charges of improper closing argument and racially motivated jury selection by Pierce's
counsel. On December 3, 1991, the trial court vacated the original judgment and granted a new trial
based on improper and prejudicial closing argument by Pierce's counsel.

¶5. During the discovery of the cause sub judice, and at the first trial, Pierce maintained, under oath,
that she was in the apartment alone when the accident occurred. Sworn answers to interrogatories
reveal that Pierce asserted that there was no other eyewitness to this accident, because no one was in
the apartment with her. She reiterated this several times over a five-year period in various responses
to interrogatories, in deposition testimony, and at trial.

¶6. To the contrary, the defendants discovered after the first trial that the plaintiff was not alone when
the accident occurred. After the jury verdict was rendered, defense counsel received an anonymous
telephone call stating that the plaintiff was not alone on the evening of the accident. Two weeks after
the trial court granted a new trial, and knowing that the defendants were aware that the plaintiff had
perjured herself, plaintiff's counsel sent a letter to the defense, stating that Pierce was now identifying
Read Bush as a witness to the accident. Bush's deposition was taken, and he confirmed his presence
that night, making him a material fact witness. However, prior to this identification, Bush was never
identified or brought to the attention of defense counsel or the court.

¶7. American and Heritage filed motions for dismissal. Halsey also moved for dismissal or, in the
alternative, monetary sanctions. Pierce responded by acknowledging that she gave false testimony.
However, she stated in a second deposition that her purpose in not telling the court about Bush
earlier was not to deceive the trial court. Instead, Pierce insisted that she did not want her parents to
know that she had a male companion in her apartment at night.

¶8. The trial court reviewed the arguments, motions, and memoranda of counsel and concluded that
Pierce's intentional presentation of false testimony warranted the sanction of dismissal with prejudice,
with costs assessed to Pierce.

                                            DISCUSSION

¶9. Pierce contends that the circuit court erred and abused its discretion by imposing the sanction of
dismissal with prejudice, thereby barring her from any recovery for injuries caused when the ceiling
fan fell on her. Specifically, the appellant argues that the trial court misapplied Mississippi Rule of
Civil Procedure 37(b)(2) by imposing the "death penalty" and dismissing her lawsuit.

¶10. The decision to impose sanctions for discovery abuse is vested in the trial court's discretion.
White v. White, 509 So.2d 205, 207 (Miss. 1987). The provisions for imposing sanctions are
designed to give the court great latitude. Id. at 207. The power to dismiss is inherent in any court of
law or equity, being a means necessary to orderly expedition of justice and the court's control of its
own docket. Palmer v. Biloxi Regional Medical Center, 564 So.2d 1346, 1367 (Miss. 1990).
Nevertheless, the trial court should dismiss a cause of action for failure to comply with discovery
only under the most extreme circumstances. Hapgood v. Biloxi Regional Medical Center, 540
So.2d 630, 634 (Miss. 1989); White, So.2d at 209.

¶11. Such dismissals by the trial court are reviewed under an abuse of discretion standard. Palmer,
564 So.2d at 1368. When this Court reviews a decision that is within the trial court's discretion, it
first asks if the court below applied the correct legal standard. Burkett v. Burkett, 537 So.2d 443,
446 (Miss. 1989). If the trial court applied the right standard, then this Court considers whether the
decision was one of several reasonable ones which could have been made. Id. This Court will affirm a
trial court's decision unless there is 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." Cooper v.
State Farm Fire & Cas. Co., 568 So.2d 687, 692 (Miss. 1990).

¶12. The trial court, in dismissing Pierce's case, relied on Mississippi Rules of Civil Procedure 37(b)
(2) and 37(e), along with its inherent power to protect the integrity of the judicial process. In
summary, these rules give the trial court the power to impose just and appropriate sanctions for
failure to comply with an order to provide or permit discovery.

¶13. The United States Supreme Court held in National Hockey League that when reviewing a
dismissal by the district court, the Court's duty is to decide not whether it would have dismissed the
action as an original matter, but whether the district court abused its discretion in so doing. National
Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642 (1976). In the underlying
case for National Hockey League, the Third Circuit Court of Appeals relied upon several
extenuating factors to reverse the district court's dismissal, including: (1) none of the parties had
really pressed discovery until approximately one year after the commencement of the action; (2) the
plaintiff's counsel took over the litigation after a consent decree was entered and had difficulty in
obtaining some of the requested information; and (3) plaintiff's lead counsel had assured the district
court that he would not knowingly and wilfully disregard the final deadline. National Hockey
League, 427 U.S. at 641. The U. S. Supreme Court, in reversing the Third Circuit, held that these
sorts of considerations, while important to evaluate and weigh in consideration of sanctions like
dismissal, "cannot be allowed to wholly supplant the other and equally necessary considerations
embodied" in Rule 37. Id.
¶14. "An implicit condition in any order to answer an interrogatory is that the answer be true,
responsive and complete. A false answer is in some ways worse than no answer; it misleads and
confuses the party." Smith v. Cessna Aircraft Co., 124 F.R.D. 103, 107 (D. Md. 1989). In Smith,
the dismissed plaintiff asserted that his ultimate production of the disputed documents dissipated any
prejudice to the defendants, while the defendants pointed out that the plaintiff's perjury throughout
discovery cast serious doubt on the credibility of the rest of his testimony, both during discovery and
at trial. Id. at 105. The district court agreed with the defendants that the focus must be on the
intentional nature, as well as the pattern, of the plaintiff's conduct, which included deliberately
providing false responses in three discovery mechanisms: the answers to interrogatories, the request
for production of documents, and the deposition testimony. Id. "Parties, like witnesses, are required
to state the truth, the whole truth and nothing but the truth in answering written interrogatories."
Hunter v. International Systems and Controls Corp., 56 F.R.D. 617, 631 (W.D. Mo. 1972).
Further, the most severe sanctions provided by statute or rule must be available to a trial court in
appropriate cases, not just to penalize those whose conduct may warrant such a sanction, but to deter
those who might be tempted to engage in such conduct in the absence of a deterrent. National
Hockey League, 427 U.S. at 643.

¶15. Some federal courts have also interpreted a false response to an interrogatory as a failure to
respond under Fed. R. Civ. P. 37(d) and have imposed sanctions, including striking a party's
pleadings and imposing judgment. See, e.g, Airtex Corp. v. Shelly Radiant Ceiling Co., 536 F.2d
145, 155 (7th Cir. 1976); Bell v. Automobile Club of Michigan, 80 F.R.D. 228, appeal dismissed,
601 F.2d 587 (6th Cir.), cert. denied, 442 U.S. 918 (1979).

¶16. The Fifth Circuit has applied several considerations to determine whether a district court has
abused its discretion under Fed. R. Civ. P. 37(b)(2)(C) by dismissing with prejudice:

     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 situation
     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.

Batson v. Neal Spelce Associates, 765 F.2d 511, 514 (5th Cir. 1985)(citations omitted). Although
this Court has adopted this construction, it would be even more illustrative to discuss treatment of
similar discovery issues by other jurisdictions.

¶17. For example, the New Mexico Supreme Court has held that a state district court may impose the
sanction of dismissal for violation of discovery orders when the failure to comply is due to the
wilfulness, bad faith, or fault of the disobedient party. Medina v. Foundation Reserve Insurance
Co., 870 P.2d 125, 126 (N.M. 1994). A willful violation of a discovery rule occurs when there is a
conscious or intentional failure to comply with the rule's requirements. Id. A finding of willfulness
may be based upon either a willful, intentional, and bad faith attempt to conceal evidence or a gross
indifference to discovery obligations. Id. While the severest of sanctions should be reserved for
extreme circumstances, the district court does not abuse its discretion by imposing the sanction of
dismissal when a party demonstrates flagrant bad faith and callous disregard for its responsibilities.
Id.

¶18. In Medina, the trial court expressly found that Medina willfully failed to comply with discovery
obligations, willfully violated a discovery order, and repeatedly gave false and misleading
information. Medina, 870 P.2d at 128. The court noted that, " It would be ridiculous to allow a party
who completely thwarts discovery to escape penalty simply because it could not be proven that other
litigants were in fact deceived by such misconduct or actually relied upon it." Id. In addition, the New
Mexico Supreme Court declined to recognize a requirement that in order for dismissal to be
appropriate, information improperly withheld in discovery must be critical to trial preparation. Id.

¶19. The rule is similar in Georgia. When a party has frustrated the orderly judicial process by false or
erroneous responses to interrogatories, that party should not be able to argue that its own conduct
has removed it beyond the reach of sanctions. Orkin Exterminating Co. v. McIntosh, 452 S.E.2d
159, 164 (Ga. Ct. App. 1994). The Georgia Court of Appeals has enunciated its policy behind
precluding such actions by a party:

     To condone such conduct would force parties to assume the falsity of every sworn
     interrogatory response and file endless motions preserving their right to relief. Such a rule
     would allow the unscrupulous to conceal documents from opposing parties by the simple
     expedient of denying their existence, without fear of penalty if the deception were by some
     chance discovered. It would discourage diligence in seeking out relevant documents even on the
     part of those not actively dishonest. Lack of diligence or negligence would not only be
     unpunished, it would be rewarded.

Id. See also Vaughn v. Texas Employment Comm'n, 792 S.W.2d 139 (Tex. App.--Houston[1st
Dist] 1990)(upholding trial court's dismissal in light of employee's continued perjury at trial).

¶20. In this instance, Pierce's failure to comply was a result of willfulness. Pierce consistently
obstructed the progress of the litigation by filing admittedly false responses to various discovery
requests and by swearing to false testimony in depositions. The circuit court judge found that some of
the answers provided by Pierce were "manifestly false." Pierce's conduct constitutes bad faith. In the
Smith case referred to above, the plaintiff who perjured himself in his deposition and answers to
interrogatories only admitted his misconduct when he realized that his lie was about to be uncovered.
Smith, 124 F.R.D. at 109. In the same way, Pierce only admitted that she had been untruthful in her
responses to discovery when she realized that defense knew the truth and confronted her with it.

¶21. The trial court explicitly addressed the potential of issuing less drastic sanctions. The court's
order reveals that the court considered allowing cross-examination at trial as an option. The appellant
argues that this would be an appropriate sanction because she would be subjected to humiliation.
However, the trial court correctly noted that this cross-examination may always occur when a party
makes inconsistent statements. The court also considered charging the plaintiff with all costs incurred
by the defendants in the action. However, it declined to do so because the fees would probably
exceed any damages that might be awarded should the case go to trial again.

¶22. The other sanctions considered by the court would not achieve the deterrent value of the
dismissal. Since any other sanction beside dismissal would virtually allow the plaintiff to get away
with lying under oath without a meaningful penalty, the trial court's decision regarding this factor was
correct.

¶23. Pierce argues that because the defendants were not subjected to any prejudice, her case should
be reinstated. However, there is no requirement that the defendant be substantially prejudiced by the
absence of evidence. What is most troublesome in the case sub judice is that the neglect is plainly
attributable to the client, Stephanie Pierce. Pierce admits that she lied under oath on several
occasions, and her counsel had no knowledge of it. Because there is substantial evidence in the
record to support her admitted deception, the trial court's dismissal seems wholly appropriate.

¶24. Additionally, Pierce argues that because the defendants do not have "clean hands," they cannot
have her claim dismissed for abuse of discovery. Pierce's position is that either the manufacturer or
the importer of the ceiling fan in question gave false testimony concerning the design of the fan.
Because the defendants will not admit to providing the design specifications for the fan, Pierce
believes that the defendants cannot use her "mistake" to relieve themselves of liability.

     Courts apply the maxim requiring "clean hands" only where some unconscionable act of one
     coming for relief has immediate and necessary relation to the equity that he seeks in respect of
     the matter in litigation. They do not close their doors because of plaintiff's misconduct,
     whatever its character, that has no relation to anything involved in the suit, but only for such
     violations of conscience as in some measure affect the equitable relations between the parties in
     respect of something brought before the court for adjudication.

Keystone Driller Co. v. General Excavator Co., 290 U.S. 240, 245 (1933). The Palmer case can be
distinguished from the case sub judice, in that the defendants in Palmer, who were themselves guilty
of procrastination, sought discovery sanctions against the plaintiff for being dilatory in prosecution of
the lawsuit. This Court merely analogized the situation to the clean hands doctrine, which comes up
in cases of judicial or equitable estoppel. We actually held that "a defendant's own procrastination
becomes relevant only when the plaintiff's procrastination is being characterized (by the defendant) as
unacceptable." Palmer, 564 So.2d at 1370.

¶25. Here, the defendants' conduct cannot be characterized as "wilful inequity." The defendants have
done no unconscionable act in relation to discovery. Since the defendants have done nothing which
can be construed as dilatory, the "clean hands" doctrine does not apply in this case.

¶26. We hasten to reiterate our reluctance to uphold the sanction of dismissal (the "death penalty").
However, the instant case provides the paradigm situation in which the plaintiff knowingly refused to
be forthcoming and actively withheld the truth from the court and gave a great deal of perjured
testimony. As we have stated before in a case where an attorney concealed potentially significant
facts and evidence,

     We are in agreement that appropriately sanctioning [the attorney] for his clear misconduct in
     this matter will thereby maintain the integrity of our adversary process and that to conclude
     otherwise would be to give this Court's seal of approval to a system which places technical
     accuracy above that which should be the common goal of all its participants-to learn "the truth,
     the whole truth and nothing but the truth."
The Mississippi Bar v. Land, 653 So.2d 899, 910 (Miss. 1994). The same reasoning applies to a
client who knowingly gives false testimony under oath and conceals significant facts from the court.
Such action by any party should not and will not be tolerated. If a defendant had done the same in
this case, the trial court would have been affirmed if it struck the answer and allowed a default
judgment to occur. Because the trial court did not abuse its discretion by dismissing Pierce's claim
with prejudice, we hereby affirm the trial court's decision.

¶27. JUDGMENT IS AFFIRMED.

LEE, C.J., PRATHER AND SULLIVAN, P.JJ., PITTMAN, BANKS, SMITH AND MILLS,
JJ., CONCUR. ROBERTS, J., CONCURS IN RESULT ONLY.
