              IN THE SUPREME COURT OF MISSISSIPPI

                      NO. 2017-CA-00211-SCT

VICTOR MAY

v.

KENNETH JARNELL AUSTIN, A MINOR, BY
AND THROUGH HIS PARENTS AND NATURAL
GUARDIANS, REX AUSTIN AND REGINA
AUSTIN AND MISSISSIPPI FARM BUREAU
CASUALTY INSURANCE COMPANY


DATE OF JUDGMENT:             05/03/2016
TRIAL JUDGE:                  HON. JEFF WEILL, SR.
TRIAL COURT ATTORNEYS:        DON H. EVANS
                              KATHERINE MARY BOUSQUET
                              STEVEN JAMES GRIFFIN
                              RICHARD JASON CANTERBURY
                              JOE S. DEATON, III
                              MICHAEL CHAD MOORE
                              QUENTIN A. DANIELS
                              DARYL MATTHEW NEWMAN
                              JOHN ALFRED WAITS
                              CHRISTIE EVANS OGDEN
                              GLEN K. TILL, JR.
COURT FROM WHICH APPEALED:    HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:      DON H. EVANS
                              CHRISTIE EVANS OGDEN
ATTORNEYS FOR APPELLEES:      STEVEN JAMES GRIFFIN
                              JOE S. DEATON, III
                              RICHARD JASON CANTERBURY
NATURE OF THE CASE:           CIVIL - PERSONAL INJURY
DISPOSITION:                  AFFIRMED - 04/12/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



     BEFORE KITCHENS, P.J., BEAM AND CHAMBERLIN, JJ.
       BEAM, JUSTICE, FOR THE COURT:

¶1.    This appeal stems from the Hinds County Circuit Court’s decision to dismiss the

plaintiff’s claims with prejudice. The circuit court entered its decision after finding that

Appellant Victor May willfully concealed his past injuries and accidents, significantly

prejudicing the defendants’ ability to proceed with their case. After reviewing the circuit

court’s decision for an abuse of discretion, we find that the circuit court did not err in finding

that the plaintiff committed numerous discovery violations which resulted in inordinate delay

and increased costs to the defendants. As a result, we affirm the decision of the circuit court.

                        FACTS AND PROCEDURAL HISTORY

¶2.    On April 19, 2011, the vehicles driven by Victor May and Kenneth Austin collided

at the intersection of Northside Drive and Hanging Moss Road in Jackson, Mississippi.

Claiming that the wreck produced injuries to his neck, lower back, and right shoulder, May

filed suit in Hinds County Circuit Court, seeking damages for Austin’s alleged negligence

in causing the accident.

¶3.    Shortly after May filed his complaint, the parties engaged in discovery. A year and

a half later, the defendants filed a motion requesting that the court dismiss the matter with

prejudice, due to May’s inconsistent and deliberately false testimony throughout the

discovery process.     The defendants cited the plaintiff’s interrogatory and production

responses and compared them to the testimony provided at a later deposition. In these

responses, May consistently denied having had any injuries or medical treatment to his neck,

lower back, and right shoulder prior to the April 2011 collision. The defense also referenced


                                                2
medical records independently obtained via subpoena from the Kosciusko Medical Clinic,

which indicated that the plaintiff not only previously suffered from significant, unrelated

injuries to his neck and back, but that he was treated just four months prior to the accident

for issues related to his right shoulder.

¶4.    The circuit court denied the defendants’ motion. Noting first that the court held the

matter under advisement until this Court ruled on the issues in Kenzie v. Belk Department

Stores, 164 So. 3d 974 (Miss 2015), the trial court reasoned that, much like the decision in

Kenzie, dismissal as a sanction for the discovery violations would not be warranted.

Although the court found that “the [p]laintiff’s false and/or misleading discovery answers

denying any prior injury to his neck or shoulder did constitute a violation of the discovery

rules,” it reasoned that such a violation was not indicative of a motive to engage in a pattern

of deception. Rather, the court determined that the plaintiff’s willingness to sign a medical

release authorization, enabling the defendants to obtain the medical records which conflicted

with the plaintiff’s testimony, showed that any alleged deception was not intentional. As a

result, the court allowed the defendants to move for lesser sanctions but decided that

dismissal was not appropriate.

¶5.    Within a week, the defendants filed a motion for reconsideration of the court’s order

denying their motion to dismiss. Therein, the defense claimed the court errantly based its

decision on a misrepresentation by the plaintiff. Citing the court’s order, the defendants

suggested that the court’s decision was largely based on the plaintiff’s execution of a medical

authorization, which the court determined was at least “slightly indicative of a lack of motive



                                              3
to engage in a pattern of deception.” However, the defendants contended that such an

authorization was never signed.

¶6.    Pointing to Austin’s interrogatories, the defendants explained that when the plaintiff

was asked to sign a release for his medical records, he blatantly objected to signing any sort

of authorization and persistently denied any prior injuries or related medical conditions. The

defendants alleged that at no time after this refusal did the plaintiff provide a medical

authorization, and that such refusal created hardship and an inability to prepare an adequate

defense. Consequently, Austin was forced to subpoena May’s medical providers for the

information. The defendants claimed that it was only after they obtained May’s prior medical

records that they learned of his earlier problems and injuries involving his neck, shoulder,

and back.

¶7.    On May 6, 2016, the trial court issued its order granting the defendant’s motion for

reconsideration. Before describing the time line as it related to the defendant’s independent

discovery of May’s injuries, the trial court explained its understanding of the proposed

violations.

       During discovery, the Plaintiff unequivocally denied having ever sustained
       injuries or having previously sought medical treatment regarding any of those
       body parts he claimed to be injured solely due to the subject car accident–
       specifically his neck, lower back and right shoulder. The Defendants
       subpoenaed Plaintiff May’s prior medical records and discovered that May had
       been untruthful about his medical history. Plaintiff May’s lack of candor was
       clear both under oath in his deposition and in sworn written discovery
       responses. In addition, after Plaintiff May was caught, his litigation subterfuge
       continued. In a feeble attempt to excuse his earlier lack of candor in the
       deposition, Plaintiff May provided a sworn affidavit contradicting portions of
       his earlier sworn testimony without any explanation as to the inconsistencies,



                                              4
       making it impossible for any party, or for this Court, to ascertain which sworn
       version to believe as true.

The trial court then identified the two issues central to the motion for reconsideration: May’s

denial of any car accidents, neck injuries, or neck-related treatment prior to the collision with

Austin, and the recently discovered medical records related to severe shoulder-pain treatment

May had obtained just four months prior to the subject accident. After identifying these

concerns, the court used a “totality of the circumstances” approach to granting dismissal.

Noting first that the plaintiff took an inordinate amount of time to respond to the defendant’s

original motion to dismiss, the court acknowledged that the plaintiff’s eventual response

included an affidavit from Victor May. Therein, May swore that he “voluntarily signed a

medical authorization giving [d]efense counsel access to [his] prior records. [He] was not

intending to hide or mislead anyone as to [his] prior medical condition.” Basing its ruling

on plaintiff’s counsel’s representation that May voluntarily had signed a medical

authorization so the defendants could obtain his prior records with impunity, the court denied

the initial motion to dismiss.

¶8.    The trial court noted that it initially found May’s assurance that he voluntarily

cooperated with the defendant’s discovery requests by signing a blank medical authorization

to be extremely relevant. May’s alleged cooperation in providing this authorization became

a deciding factor as to whether the discovery violations had been willful or grossly

inadvertent. The court decided that, although May had committed unmistakable discovery

violations regarding issues fundamental to the defendants’ ability to defend the lawsuit, by

providing the medical authorizations, he had demonstrated a lack of motive to engage in a

                                               5
pattern of deception. As a result, the court ruled initially that, if requested, lesser sanctions

may be appropriate, but dismissal was not warranted.

¶9.    Prior to the hearing on the motion for reconsideration, the court considered its

previous ruling and the parties’ claims regarding the existence of the medical authorization.

On August 3, 2015–more than a month prior to the motion’s hearing–the court requested that

“the Plaintiff, within ten (10) days from today’s date, [] submit copies of the medical

authorization or authorizations executed by the Plaintiff . . . [as] described in the Plaintiff’s

Response to the Defendant’s Motion to Reconsider and at the previous hearing on the

original motion [to dismiss].” May failed to respond to the court’s email or provide any

additional documentation, as directed. Furthermore, at the hearing on September 28, 2015,

plaintiff’s counsel admitted that he did not have a copy of any medical authorization

allegedly signed by the plaintiff and could not provide any proof that such authorization

existed.

¶10.   The trial court noted that a plaintiff is not required to provide a defendant with a

signed medical authorization when not specific to a medical provider; though it is routinely

done to facilitate the discovery process. With that in mind, May’s asserted willingness to

assist the defense in the discovery process was a deciding factor in the trial court’s initial

finding that he lacked intent to conceal any prior injuries or medical conditions from the

defendants. After finding that May’s “lies and omissions during discovery . . . compounded,

rather than mitigated, the factual misrepresentation by the [p]laintiff and his counsel, which

ha[ve] now been shown to be false,” the court found that dismissal with prejudice was “the



                                               6
only reasonable and sufficient sanction available under these circumstances to end this

ongoing pattern of deceit and to deter others from similar, reprehensible conduct in

litigation.”

¶11.   May appeals the trial court’s ruling, claiming that his discovery responses did not

justify dismissal of the case, and that the court erred in finding that he lied about executing

the medical release for the defendants. Accordingly, the sole issue on appeal is whether the

trial court was justified in dismissing the case after making factual findings concerning

May’s repeated and unequivocal misrepresentations throughout discovery.

                                  LAW AND ANALYSIS

       I.      Standard of Review

¶12.   This Court recognizes the trial court’s inherent power to dismiss a case as a “means

necessary for orderly expedition of justice and the court’s control of its own docket.

Nevertheless, the trial court should dismiss a cause of action for failure to comply with

discovery only under the most extreme circumstances.” Pierce v. Heritage Props., Inc., 688

So. 2d 1385, 1388 (Miss. 1997).

¶13.   The Court reviews such discovery-violation dismissals under the abuse-of-discretion

standard. Id. “Abuse of discretion is the most deferential standard of review appellate courts

employ.” Ashmore v. Mississippi Auth. on Educ. Television, 148 So. 3d 977, 982 (Miss.

2104). “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. If the trial court applied the right

standard, then this Court considers whether the decision was one of several reasonable ones



                                               7
which could have been made.” Pierce, 688 So. 2d at 1388. “In short, if the trial court applies

the ‘correct legal standard,’ [this Court] must affirm the decision regardless of what any

[justice] individually might have ruled had [her or she] been the judge, unless there is a

‘definite and firm conviction that the court below committed error.’” Ashmore, 148 So. 3d

at 982. If there is no “clear error in judgment in the conclusion it reached upon weighing the

relevant factors,” this Court will affirm the trial court’s dismissal. Cooper v. State Farm Fire

and Cas. Co., 568 So. 2d 687, 692 (Miss. 1990).

       II.    Legal Standard: Discovery Violation Dismissals

¶14.   A trial court’s authority to sanction a party for discovery violations is provided for by

Mississippi Rule of Civil Procedure 37.            The rule empowers trial courts with the

discretionary authority to “impose upon any party or counsel such sanctions as may be just.”

M.R.C.P. 37. This Court has found that those justified sanctions include the “death penalty”

of a civil action–dismissal with prejudice–“when the deterrent value of Rule 37 cannot be

achieved by the use of less drastic sanctions.” Scoggins v. Ellzey Beverages, Inc., 743 So.

2d 990, 996 (Miss. 1999) (quoting Pierce, 688 So. 2d at 1389.)

¶15.   This Court evaluated the application of Rule 37 and the appropriateness of dismissal

as a sanction in Pierce. There, the plaintiff sought damages from several defendants on the

theories of negligence, breach of warranty, and strict liability, after suffering injuries when

a fan installed above her bed fell from the ceiling and landed on top of her. Pierce, 688 So.

2d. at 1387. Throughout discovery, Pierce maintained that she was alone when the fan fell

from the ceiling, making her the only witness to the event. However, following a trial on the



                                               8
matter, and the trial court’s decision to vacate the jury’s verdict, the defense discovered that

Pierce was not alone when the fan fell; rather, her male companion was identified as having

witnessed the accident as well. Id. at 1388.

¶16.   Pierce responded to the newly discovered information by acknowledging that she had

given false testimony. She argued that she never had intended to deceive the court; instead,

she intended only to shield her parents from the knowledge that their daughter had

entertained an overnight guest that evening. The court reviewed this information and

determined that Pierce’s “intentional presentation of false testimony warranted the sanction

of dismissal with prejudice.” Pierce, 688 So. 2d at 1388.

¶17.   On appeal, this Court adopted the Fifth Circuit’s analysis of trial-court discovery

violation dismissals. The standard requires that:

       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 a 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.

Pierce, 688 So. 2d at 1389 (citing Batson v. Neal Spelce Assocs., 765 F.2d 511, 514 (5th Cir.

1985)).

¶18.   In applying this analysis, the Court determined that Pierce’s failure to comply was a

result of willfulness and bad faith, which obstructed the progress of litigation. The Court

agreed that less drastic sanctions in the form of fees or procedural mechanisms would not



                                               9
achieve the deterrent value of dismissal. Instead, it found that any sanction other than

dismissal for such “manifestly false” representations would “virtually allow the plaintiff to

get away with lying under oath without meaningful penalty.” Pierce, 688 So. 2d at 1390-91.

The Court then reviewed whether the defendants were substantially prejudiced in their ability

to prepare for trial and whether neglect was “plainly attributable to an attorney rather than

a blameless client.” Id. at 1389. The Court first provided that “there is no requirement that

the defendant be substantially prejudiced by the absence of evidence.” Id. at 1391. It then

determined that the neglect at issue was plainly attributable to Pierce alone. Id. With

“substantial evidence in the record to support her admitted deception,” the Court found that

the trial court in no way abused its discretion upon dismissal of the case. Id.

¶19.   Since the Pierce decision, this Court and the Court of Appeals has applied the above

analysis to affirm a myriad of discovery-violation dismissals.         Notably, the Court in

Scoggins, Ashmore, and Ferguson reviewed violations similar to those in this case and

determined that the trial courts were justified in their decisions to dismiss. See Scoggins v.

Ellzey Beverages, Inc., 743 So. 2d 990 (Miss. 1999); Ashmore v. Mississippi Auth. on

Educ. Television, 148 So. 3d 977 (Miss. 2014); and Ferguson v. Univ. of Mississippi Med.

Ctr., 179 So. 3d 1060 (Miss. 2015). While each of these matters concerned unique fact

patterns and requests for the Court, their discovery violations embraced a common thread:

each plaintiff engaged in a “pattern of false testimony that struck to the core of the material

issues in the lawsuit.” Ashmore, 148 So. 3d at 979.




                                              10
¶20.   In Scoggins, the plaintiff affirmatively stated that, other than the accident at issue and

a softball injury in 1958, she had never sustained an injury to the portions of her body which

she claimed were injured as a result of the defendants’ negligence. However, through

medical records later obtained by the defendants, the court learned that Scoggins “had been

examined and/or treated for pain, numbness and/or arthritis in her left leg, back, hip and/or

spine on thirty-five separate visits from October 5, 1976, through January 21, 1994.”

Scoggins, 743 So. 2d at 990-91. Additionally, less than three months before the accident on

March 4, 1994, Scoggins visited her physician and complained of pain in “the left shoulder”

and “tenderness, back pain and stiffness in the spine.” Id. at 992. The trial court found–and

this Court agreed–that the plaintiff’s attempts to attribute such flagrant discrepancies to

memory loss and recent deaths in her family were seemingly selective and not credible

explanations for the material misrepresentations. Id. at 993.

¶21.   Similarly, in Ashmore, the plaintiffs failed to disclose a previous back injury, previous

knee surgeries, and an injury which occurred after the subject motor-vehicle collision. The

trial court determined that such misrepresentations were willful and represented a “deliberate

attempt to subvert the judicial process.” Ashmore, 148 So. 3d at 981. This Court agreed.

Finding that the trial court was well within its discretion to dismiss the case under the

circumstances, this Court ruled that dismissal was an appropriate and meaningful penalty,

preventing the parties from “getting away with lying under oath.” Ashmore, 148 So. 3d at

986-87.




                                              11
¶22.   Likewise, we determined in Ferguson that dismissal of a substituted party-plaintiff

was warranted because the plaintiff had signed a false affidavit, committing perjury

regarding a key issue. Ferguson claimed that he had no specific recollection of swearing out

the affidavit. Instead, he argued that he remembered being asked to sign something, but he

was not certain what it was. Ferguson, 179 So. 3d at 1064. Ferguson then testified that the

contents of the affidavit were false. Id. The trial court dismissed the case and this Court

affirmed. Finding that the judge recognized that he was required to impose the least

restrictive sanction, this Court determined that dismissal was appropriate in light of

Ferguson’s conduct and misrepresentation in the case. Id. at 1066.

¶23.   While the Pierce factors have been applied to many cases affirming a trial court’s

dismissal, several have also reversed the trial court’s judgment, remanding for the case to

move forward. One such case is the recent ruling in Kinzie v. Belk Department Stores, L.P.,

164 So. 3d 974 (Miss. 2015). There, this Court noted that “where the discovery violation at

issue is less extreme and open to potential truthful interpretations, this Court will not hesitate

to reverse a trial court’s Rule 37 dismissal.” Kinzie, 164 So. 3d at 978. Mindful of this

standard, the Court determined that the plaintiff’s testimony that he was no longer “able to

enjoy tinkering with automobiles as the stooping, bending, and squatting are painful” did not

merit dismissal. Id. The Court found that the defendant’s video footage revealing Kenzie’s

daily activities of walking around town and working in his shed did not establish “any kind

of pattern of misleading or false responses.” Id. at 979. Rather, the Court found that, while

“Kinzie indisputably was injured,” the “activity observed by the defendant’s undercover



                                               12
video did not . . . encompass any of the specific activities that he stated he no longer could

perform.” Id. at 978-79. As a result, the Court reversed the trial court’s dismissal, noting

that, although Kinzie’s response was misleading, “the perceived falsehood arose in an

isolated incident, and it certainly has not been established that Kinzie’s statements in

discovery indicate any kind of pattern of misleading or false responses.” Under the Pierce

standard, Kenzie’s violation did not result from willfulness or bad faith, making the deterrent

value of other sanctions under Rule 37 appropriate.

¶24.   Through Pierce and its progeny, this Court has advanced a clear and uncomplicated

standard under which courts of this state may analyze sanctions for discovery violations. On

appeal, we have articulated our standard of review through the cases above, encouraging trial

courts to dismiss matters when parties deliberately attempt to subvert the judicial process.

Ashmore, 148 So. 3d at 985. The Court favors dismissal as a sanction of last resort,

although, when a party’s failure to comply with the trial court’s orders results from

willfulness or bad faith, we will not hesitate to affirm. Scoggins, 743 So. 2d at 996. When

applying the Pierce factors, we must “stay true and honor the appropriate standard of

review,” allowing the discretionary decisions of a trial judge to stand. Ashmore, 148 So. 3d

at 985. If nothing in the trial record “suggests an ‘arbitrary’ or ‘clearly erroneous’ ruling was

made by the learned trial judge, or instills in this Court a ‘definite and firm conviction that

the court below committed a clear error of judgment,’” we must affirm the dismissal. Id. at

987.

       III.   Applying the Standards to the Dismissal Sanction



                                               13
¶25.   As detailed above, this Court consistently has held that a “trial court should dismiss

a cause of action for failure to comply with discovery only under the most extreme

circumstances.” Pierce, 688 So. 2d at 1388. In reviewing a the circuit court’s dismissal of

May’s claims, we find that the plaintiff engaged in a repeated course of misleading conduct

by continuously providing false answers and failing to disclose relevant information. As

detailed below, when the Pierce factors are applied to these facts, we fail to find any error

by the trial court in choosing to dismiss the matter for these extreme discovery violations.

¶26.   In its order granting dismissal, the trial court thoroughly applied the Pierce factors and

first asked whether May’s discovery violations were the result of willfulness or bad faith.

After analyzing various cases handed down by this Court and the Court of Appeals, the trial

court found that the facts in the case sub judice were even more egregious that those in

Ashmore or the recent Court of Appeals opinion, Lockhart v. Stirling Properties, Inc., 170

So. 3d 1235 (Miss. Ct. App. 2015).1 Throughout the interrogatories, requests for production,

and deposition, May time and again denied that he had any injuries or medical issues related

to those injuries alleged in this suit. After the defense secured medical records from May’s

physicians, such denials were proved false. Along with other misleading testimony,2 the trial


       1
         The Court of Appeals affirmed dismissal of the plaintiff’s case after finding a “clear
record of repeated misrepresentations and nondisclosures in . . . responses to [the
defendant’s] interrogatories and requests for production of documents, including the
supplementation to those requests.” Lockhart, 170 So. 3d at 1239. The court determined that
“failure to disclose similar injuries, preexisting conditions, prior treatment, and medications
can be grounds for dismissal,” and held that the trial court did not abuse its discretion in
dismissing the matter. Lockhart, 170 So. 3d at 1238.
       2
        Several inconsistencies arose throughout the deposition. For example, through
written discovery, May claimed to have only a fifth-grade education. However, in his

                                              14
court considered this difficulty to provide the truth, particularly as it related to the medical

waiver May alleged to have signed. Giving the plaintiff the benefit of the doubt, the court

provided May’s counsel with ample opportunity to submit the signed waiver to the court as

proof of his compliance with the discovery requests. However, at the hearing on the motion

for reconsideration, May’s counsel explained to the court that he did not have a copy of the

waiver, and that it was not his responsibility to keep up with the defendant’s correspondence.

¶27.   Without proof of the waiver, May’s early refusal to submit a medical authorization

and his apparently false affidavit attesting to his previous submission of the form amounted

to willful deceit that the court found to be particularly egregious. Taking all of these facts

into consideration, the trial court determined that whether the waiver was signed became a

factual issue as to the credibility of the two parties. After examining the available testimony

and discovery as a whole, the court determined that May’s narrative was simply not reliable.

We find that the trial court diligently analyzed the first Pierce factor and properly determined

that–under the facts of the case–May’s repeated false answers and failure to disclose relevant

information were willful discovery violations made in bad faith.



deposition, May claimed to have continued on through the eleventh grade, after which he
joined the military. Secondly, when asked if he had any criminal convictions, May initially
stated he was arrested for fighting in a bar and spent a couple nights in jail as a result. Then,
at his deposition, May testified he also had been arrested for a DUI in the 1970s, and had
spent thirty months in jail after being convicted of a burglary. Also, when asked if May had
been in any other car accidents, he testified through his interrogatories that he had not been
in any. However, after receiving his medical records from his treating physicians, the
defense discovered that May had been in an accident in 1999, after which he reported neck
and spine pain. In addition to stating that he had no injuries or medical treatment prior to the
collision with Austin, these serious misrepresentations of significant life events add to the
egregiousness of May’s discovery violations.

                                               15
¶28.   Moving to the second factor, the trial court then asked whether the deterrent value of

Rule 37 could be achieved by lesser sanctions. There, the court determined that the ongoing

nature of the lies and omissions regarding the medical authorization by May and his counsel

warranted more than a fine or the ability to cross-examine the plaintiff.3 Consequently, any

sanction less than dismissal would fail to discourage such bad-faith litigation conduct in the

future. We agree and find that the court’s “decision was not arbitrary, but was based on the

law we established.” Ashmore, 148 So. 3d at 984. Therefore, under these circumstances,

only a dismissal would serve the interest of justice.

¶29.   Next, the court considered whether the wronged party had suffered prejudice as a

result of the discovery violation. In Pierce, this Court held that there is no requirement that

the “defendant be substantially prejudiced by the absence of evidence.” Pierce, 688 So. 2d

at 1391. Nevertheless, the trial court squarely addressed the defendants’ harm, finding that

the defense had been “significantly prejudiced by the plaintiff’s costly refusal to cooperate

with the Mississippi Rules of Court[,] namely through the inordinate delay cause[d] by the

[p]laintiff’s lack of candor and legal gymnastics required for the [d]efendants simply to get

basic, crucial information to ably defend the lawsuit.” While not required, the trial court

thoroughly considered the prejudice sustained as a result of May’s abuse of the judicial

process. We find the court adequately considered prejudice as part of its decision to dismiss

and properly assessed the defendants’ harm due to May’s discovery violations.

       3
        Cross-examination by the defense was a potential sanction offered by the plaintiff
as recompense for the discovery violations. However, because the plaintiff was found to
have lied under oath, the defense would have the opportunity to question the plaintiff,
whether by sanction or procedural provision.

                                              16
¶30.   Finally, the court reviewed whether the discovery abuse was attributable solely to trial

counsel instead of “a blameless client.” While the judge took issue with plaintiff’s counsel’s

role in the “litigation subterfuge,” he found May to be anything but blameless for his

“continuous cavalier lack of truthfulness.” Although the trial court separately found that

plaintiff’s counsel made binding representations to the court about the medical authorizations

signed by his client, we find that May’s numerous and unequivocal ongoing lies and

omissions about matters central to the litigation left the court and the defendants “without

knowing what they [could] believe.” As a result, the trial court thoroughly reviewed the

fourth Pierce factor and properly addressed May’s measure of fault in its entry of dismissal.

¶31.   Having considered the trial court’s application of the Pierce factors, we find that the

court properly analyzed May’s discovery violations, applied appropriate weight to each

misrepresentation, and arrived at a justifiable conclusion. As we observed in Scoggins,

“[w]hen 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. If the trial court applied the right legal

standard, then 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.’” Scoggins, 743 So. 2d at 996 (quoting Pierce,

688 So. 2d at 1388). Here, the trial court’s order granting dismissal labored over the relevant

caselaw and the applicable standard, supporting its decision to dismiss. Although the court

recognized dismissal with prejudice as a last resort, it discerned no other sanction that might

properly deter May or other future plaintiffs from abusing the discovery process with such



                                                17
blatant misrepresentations. Because the trial court’s dismissal achieved the appropriate

deterrent effect, preventing parties from dodging a meaningful penalty for lying under oath,

we affirm the trial court’s decision as a reasonable and appropriate ruling under Mississippi

Rule of Civil Procedure 37. See Ashmore, 148 So. 3d at 985.

                                     CONCLUSION

¶32.   After determining that Plaintiff May committed various, egregious discovery

violations, the trial court properly applied an available Rule 37 sanction and ordered this

case dismissed with prejudice. We have held that “[c]ourts, trial or appellate, should not

condone lies or mollify penalties for lying or discourage trial judges from protecting our

courts from those who would seek to abuse the judicial process in pursuit of lucre. Every

court, at every level, should be vigilant in maintaining integrity.” Ashmore, 148 So. 3d at

985. Under its discretion, the Hinds County Circuit Court sought to maintain that integrity

by employing one of the alternative sanctions provided for under the law. Honoring the

appropriate standard of review, this Court will do the same and allow this trial judge’s

decision to stand.

¶33.   The judgment of the Hinds County Circuit Court is affirmed.

¶34.   AFFIRMED.

     RANDOLPH AND KITCHENS, P.JJ., COLEMAN, CHAMBERLIN AND
ISHEE, JJ., CONCUR. KING, J., CONCURS IN RESULT ONLY WITHOUT
SEPARATE WRITTEN OPINION. MAXWELL, J., CONCURS IN PART AND IN
RESULT WITHOUT SEPARATE WRITTEN OPINION. WALLER, C.J., NOT
PARTICIPATING.




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