                IN THE SUPREME COURT OF MISSISSIPPI

                        NO. 2012-CT-01176-SCT

WILLIE KINZIE

v.

BELK DEPARTMENT STORES, L.P., BELK, INC.,
DAVID FLOWERS, SHANAY GRANT, KATHY
COFFEY, DONALD SMITH, NIKKI DAGGINS,
RAY FAJA AND STAFFMARK INVESTMENT,
LLC

                      ON WRIT OF CERTIORARI

DATE OF JUDGMENT:           07/05/2012
TRIAL JUDGE:                HON. JEFF WEILL, SR.
TRIAL COURT ATTORNEYS:      RICHARD PAUL WILLIAMS, III
                            COURTNEY MCREYNOLDS WILLIAMS
                            TERRIS CATON HARRIS
                            THOMAS LYNN CARPENTER, JR.
                            EDWARD J. CURRIE, JR.
                            REBECCA B. COWAN
COURT FROM WHICH APPEALED: CIRCUIT COURT OF THE FIRST JUDICIAL
                            DISTRICT OF HINDS COUNTY
ATTORNEYS FOR APPELLANT:    RICHARD PAUL WILLIAMS, III
                            COURTNEY MCREYNOLDS WILLIAMS
                            DARYL MATTHEW NEWMAN
ATTORNEYS FOR APPELLEES:    THOMAS LYNN CARPENTER, JR.
                            JOSEPH WALTER GILL
                            EDWARD J. CURRIE, JR.
                            REBECCA B. COWAN
NATURE OF THE CASE:         CIVIL - PERSONAL INJURY
DISPOSITION:                THE JUDGMENT OF THE COURT OF
                            APPEALS IS AFFIRMED IN PART AND
                            REVERSED IN PART. THE JUDGMENT OF
                            THE CIRCUIT COURT OF THE FIRST
                            JUDICIAL DISTRICT OF HINDS COUNTY IS
                            REVERSED AND THE CASE IS
                            REMANDED - 03/12/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       KITCHENS, JUSTICE, FOR THE COURT:

¶1.    Willie Kinzie sued Belk Department Stores, L.P., Belk, Inc., David Flowers, Shanay

Grant, Kathy Coffey, Donald Smith, Nikki Daggins, Ray Faja, Staffmark Investment, LLC,

and John Does 1-5 (Belk Defendants) for injuries he sustained while unloading a trailer that

had transported merchandise to a Belk retail store. The trial court dismissed Kinzie’s lawsuit

with prejudice, finding that Kinzie had misrepresented his injuries during discovery. The

Court of Appeals reversed the judgment of the trial court and remanded the case, holding that

Kinzie had not misrepresented his injuries and that the ultimate sanction of dismissal with

prejudice was not warranted. Having granted certioriari, we affirm, in part, the judgment of

the Court of Appeals; we reverse and remand the judgment of the Circuit Court of the First

Judicial District of Hinds County.

                         FACTS 1 AND PROCEDURAL HISTORY

       Kinzie, a truck driver for twenty-eight years, was employed by Triangle
       Trucking at the time of the injuries at issue. Triangle trucking had dispatched
       Kinzie as a truck driver for Belk since 2007. At the time of his injury, Kinzie’s
       job required him to pick up a loaded trailer of Belk cargo from the Belk
       distribution center in Byram, Mississippi, and unload it at other Belk locations
       throughout the United States.

       On July 14, 2009, Kinzie picked up a loaded trailer at the Belk distribution
       center in Byram and traveled to a Belk facility in Cullman, Alabama. In the
       course of unloading his truck, which contained approximately 2,161 cases of




       1
           The facts are taken verbatim from the opinion of the Court of Appeals.

                                               2
       cargo, weighing a total of 18,229 2 pounds, Kinzie injured his back. Shortly
       after he received his injury, an ambulance transported Kinzie to the emergency
       room, where physicians diagnosed him with a central-disc protrusion, disc
       desiccation, and disc bulging.

       Kinzie initially engaged in a nonsurgical, conservative treatment. Then, on
       January 4, 2010, Kinzie underwent a bilateral L4-5 hemilaminectomy and
       discectomy surgery. On May 25, 2010, Kinzie’s treating physician, Dr.
       Howard Holaday, explained that Kinzie possessed the capability to perform
       sedentary to light duty work, with a lifting restriction of no greater than twenty
       pounds, and restrictions on frequent stooping and bending. Although Kinzie
       claimed to need a cane for stability and assistance, Dr. Holaday provided no
       recommendation for Kinzie to use a cane. Kinzie asserted that Dr. Holaday
       also warned him to wean himself off of the cane. The results of functional
       capacity evaluations (FCEs) performed on April 20, 2010, and May 13, 2010,
       showed that Kinzie could perform work on a sedentary-physical demand level
       only. The FCEs also showed Kinzie possessed a dysfunctional sacroiliac (SI)
       joint.

       On October 21, 2010, Kinzie filed suit against the Appellees, alleging that his
       back injury resulted from the Appellees’ negligent loading of light cargo items
       on the bottom of the trailer and heavy cargo items on the top, as well as failure
       to secure the cargo. Kinzie submits that a medical estimate projects his future
       medical expenses will total $117,406.90. He also submits that his past medical
       expenses, lost wages, future medical expenses, and future lost wages amount
       to $664,890.37. During discovery, Kinzie, through counsel, provided
       responses to interrogatories and also provided deposition testimony, all of
       which responded to questions relating to his injury and explaining his present
       physical limitations resulting from his injury.

       Interrogatory 5 inquired about any opinions rendered by a doctor or medical
       provider regarding Kinzie’s injuries. Kinzie objected to interrogatory 5 as
       being outside the permissible scope of discovery, but answered by explaining
       that he had been “assigned permanent work restrictions of no lifting greater
       than twenty pounds,” was prohibited from “frequent stooping or bending,” and
       “had been told that [he] can only perform work in the sedentary physical
       demand level at eight hours a day, five days a week.” Kinzie further stated in
       his response that he had “been told that [he has] a ten percent whole person



       2
       In response to a motion to dismiss in the trial court, Kinzie alleged that he had been
unloading a truck “carrying approximately 2,161 cases of cargo, weighing 18,229 lbs.” In
his complaint, Kinzie had alleged the gross weight to have been only 7,854 pounds.

                                               3
      impairment rating.” Interrogatory 11 stated: “Describe all activities you were
      able to perform or participate in prior to July 14, 2009, that you cannot
      perform or participate in now.” Kinzie answered the interrogatory by stating:

                As a result of the injuries sustained in this accident, I have the
                following limitations: not able to cut grass or take care of the
                lawn, unable to perform house cleaning, not able to drive but for
                very short periods of time, unable to stand or walk for long
                period[s] of time, cannot lift or carry objects or even groceries,
                difficulty engaging in usual sexual activities, unable to play and
                hold grandchildren, and other activities as before the incident.

      Unbeknownst to Kinzie or his counsel, the Appellees hired an investigator to
      perform surveillance of Kinzie during the period of August 19, 2011, to
      September 22, 2011 (thirty-four days). Of the thirty-four day period
      surveillance, twenty-five minutes of excerpts of video footage were provided.
      The excerpts provided were edited and are not a complete video of the entire
      thirty-four-day time period. As acknowledged, excerpts of the footage
      provided show snapshots in time during the thirty-four-day surveillance
      period. The investigator prepared a report of Kinzie’s activities during the
      period. The excerpts of the video footage reveal Kinzie driving and walking
      to the post office and his attorney’s office, and working with another man on
      his shed in the backyard of his house. In response to the video evidence,
      Kinzie claims that he never violated his physician’s restrictions, nor did he
      perform any task that he stated in his discovery responses that he could not
      perform, even while working on his shed.

Kinzie v. Belk Dep’t Stores, 2014 WL 3417612, **1-2 (Miss. Ct. App. July 15, 2014), cert.

granted, 156 So. 3d 981 (Miss. 2014).

¶2.   Staffmark Investment filed a motion to dismiss pursuant to Mississippi Rule of Civil

Procedure 37(e),3 claiming that Kinzie had made misrepresentations under oath while



      3
          Mississippi Rule of Civil Procedure 37(e) provides:

      [T]he court may impose upon any party or counsel such sanctions as may be just,
      including the payment of reasonable expenses and attorneys’ fees, if any party or
      counsel (i) fails without good cause to cooperate in the framing of an appropriate
      discovery plan by agreement . . . or (ii) otherwise abuses the discovery process in
      seeking, making or resisting discovery.

                                                4
responding to interrogatories and during his deposition. This motion later was joined by the

remaining Belk Defendants. The trial court agreed and dismissed the case with prejudice on

July 5, 2012. The trial court concluded:

       Based on the plaintiff’s false representations made in his interrogatory
       response and in his deposition, along with the video surveillance the
       defendants obtained on him, this Court finds that the plaintiff’s cause of action
       should be dismissed with prejudice as a sanction for his conduct. This Court
       further finds that no lesser sanction is appropriate under the circumstances.

¶3.    Kinzie appealed, and we assigned the case to the Court of Appeals, which held:

“Based on the foregoing, we find no evidence of misrepresentation by Kinzie in his responses

to the interrogatories and deposition questions. As stated, we review Kinzie’s response to

interrogatory 11 in the context of all of the interrogatory responses . . . .” Kinzie, 2014 WL

3417612, at *7. We granted certioriari to clarify that, though Kinzie did commit a discovery

violation, the ultimate sanction of dismissal with prejudice was not warranted.

                                STANDARD OF REVIEW

¶4.    “Trial courts are afforded broad discretion in discovery matters, and this Court will

not overturn a trial court’s decision unless there is an abuse of discretion . . . .” Ashmore v.

Miss. Auth. on Educ. Television, 148 So. 3d 977, 981 (Miss. 2014). “[I]f the trial court

applies the ‘correct legal standard,’ we must affirm the decision, regardless of what any one

of us individually might have ruled had we been the judge, unless there is a ‘definite and firm

conviction that the court below committed clear error.’” Id. at 982 (quoting City of Jackson

v. Rhaly, 95 So. 3d 602, 607 (Miss. 2012)). Thus, the Court should engage in “measured




Miss. R. Civ. P. 37(e).

                                               5
restraint in conducting appellate review” and should not decide whether it would have

dismissed the original action but whether dismissal amounted to clear error. Ashmore, 148

So. 3d at 982.

                                         ANALYSIS

¶5.    This Court has made it clear that a “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) (emphasis added). Accordingly,

we must determine whether the circumstances before us are sufficiently extreme to justify

dismissal. An analysis of the relevant caselaw reveals that they are not.

¶6.    In Pierce, this Court held that dismissal was appropriate because the plaintiff had flat-

out lied under oath about the existence of an eyewitness to the incident that had caused the

plaintiff’s alleged injuries and had “consistently obstructed the progress of the litigation by

filing admittedly false responses to various discovery requests and by swearing to false

testimony in depositions.” Id. at 1390. This Court determined that dismissal was appropriate

because the plaintiff had acted in bad faith, and that any sanction other than “dismissal would

virtually allow the plaintiff to get away with lying under oath. . . .” Id. at 1390-91. The Court

noted, however, that it would remain very reluctant to affirm such a harsh sanction, and did

so in that case only because it provided “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.” Id. at 1391 (emphasis added).

¶7.    In other cases in which this Court has affirmed dismissal, the discovery violations

were similarly egregious. In Scoggins v. Ellzey Beverages, Inc., 743 So. 2d 990 (Miss.

                                               6
1999), the plaintiff, who could perfectly recall the details of several aspects of her life for

many years, completely failed to disclose several invasive medical procedures and doctors’

visits that were relevant to her claim. The trial court in that case found that the plaintiff made

an “apparently deliberate attempt to subvert the judicial process,” and she presented “no

credible explanation for the total lack of congruence between her testimony and her medical

records.” Id. at 994. This Court affirmed, again noting that this case presented a rare instance

“where the conduct of a party is so egregious that no other sanction will meet the demands

of justice.” Id. at 997.

¶8.    More recently, in Ashmore v. Mississippi Authority on Educational Television, 148

So. 3d 977, 985 (Miss. 2014), we affirmed a dismissal where the plaintiff had “lied by

concealing a right-knee surgery and degenerative joint disease in his right knee.” The

plaintiff also had hidden the existence of “a subsequent left-knee injury or degenerative disc

disease in his back, despite medical reports to the contrary.” Id. Once again, the discovery

violations that justified dismissal were clear and unequivocal falsehoods.

¶9.    However, 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.

In Wood ex rel. Wood v. Biloxi Public School District, 757 So. 2d 190, 193 (Miss. 2000),

the plaintiff responded to an interrogatory regarding the nature of his injuries by stating, “I

no longer am able to enjoy tinkering with automobiles as the stooping, bending, and

squatting are painful.” After viewing undercover surveillance video of the plaintiff “walking

normally, squatting, twisting, bending, and generally performing normal daily functions

without any indication of impairment or pain,” the trial court dismissed the plaintiff’s case.

                                                 7
Id. This Court reversed, finding that “the only discovery response which was contradicted

by evidence at the hearing [on the motion to dismiss] was one ambiguously worded response

to one interrogatory question.” Id. at 194. As the plaintiff’s response indicated that he could

still perform certain tasks, just with less enjoyment than before, the Court held that the

defendants did not establish that the plaintiff “knowingly made false statements in discovery

and it was certainly not established that [the plaintiff] had engaged in a pattern of such false

responses.” Id. (emphasis added). The Court held “that the alleged untruthfulness in Wood’s

interrogatories, if any, d[id] not constitute a sufficiently egregious discovery violation such

that no other sanction will meet the demands of justice.” Id. at 195.

¶10.   We find the discovery violation in this case to be more similar to the alleged discovery

violation in Wood than the unequivocally false and misleading discovery violations found

in Pierce, Scoggins, and Ashmore. In Wood, the plaintiff stated that he could no longer enjoy

certain activities as he could before being injured. Here, Kinzie stated that he could not

perform several activities as he could before his injury.4 He was truthful when it came to his

medical record and his medically diagnosed work restrictions. Kinzie indisputably was

injured. He went to an emergency room immediately after his accident and, at that time, was




       4
           As related above, Kinzie’s answer to Interrogatory 11 was as follows:

       I have the following limitations: not able to cut grass or take care of lawn,
       unable to perform house cleaning, not able to drive but for very short periods
       of time, unable to stand or walk for long period[s] of time, cannot lift or carry
       objects or even groceries, difficulty engaging in usual sexual activities, unable
       to play and hold grandchildren, and other activities as before incident.

(Emphasis added.)

                                               8
diagnosed with central-disc protrusion, disc desiccation, and disc bulging. He underwent an

invasive surgical procedure on his spine. The activity observed in the undercover video did

not stray outside of his medical work restrictions, and it did not encompass any of the

specific activities that he stated he no longer could perform. The trial court found this to be

a discovery violation. While the trial court cannot be said to have been manifestly wrong in

its determination that there was, in fact, a discovery violation, the severe sanction of

dismissal amounts to clear, reversible error amounting to an abuse of discretion.

¶11.   Kinzie did not blatantly lie about the existence of a witness, as did the plaintiff in

Pierce, nor did he completely misrepresent years of medical history and procedures, as did

the plaintiff in Scoggins, nor did he hide any other surgeries, as did the plaintiff in Ashmore.

The Court finds no “total lack of congruence” between Kinzie’s responses and his medical

records, as the trial court found in Scoggins. Scoggins, 743 So. 2d at 994. Nor do we find

this to be “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 this Court found in Pierce. Pierce, 688 So. 2d at 1391 (emphasis added). Instead, and

similar to the plaintiff in Wood, Kinzie answered an interrogatory about the extent of his

injuries in a way that the trial court thought was misleading. And here, although the trial

court found Kinzie’s response to be false, 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.

¶12.   Analogously, this Court has reversed a trial court’s dismissal based on Rule of Civil

Procedure 41(b) where the trial court failed to consider lesser sanctions, including “fines,

                                               9
costs, or damages against plaintiff or his counsel, attorney disciplinary measures, conditional

dismissal, dismissal without prejudice, and explicit warnings.” Am. Tel. & Tel. Co. v. Days

Inn of Winona, 720 So. 2d 178, 182 (Miss. 1998) (quotation omitted). Just as this Court

found then, in this case, “it is not at all certain that [lesser] sanctions would have been futile

in expediting the proceedings.” Id. Although we do not find, as did the Court of Appeals, that

the trial court abused its discretion when it determined that Kinzie had committed a discovery

violation, we hold that the trial court erred when it dismissed the case completely as a result

of that violation while paying mere lip service to the possibility and practicality of lesser

sanctions.

                                       CONCLUSION

¶13.   Dismissal is appropriate only under the most extreme circumstances and only where

lesser sanctions will not suffice. Pierce, 688 So. 2d at 1388-89. This is not an extreme case,

and lesser sanctions can deter misleading responses without dismissing Kinzie’s claims

altogether. A jury will watch this video, and that may influence its ultimate determination.

But a jury ought to make that ultimate determination, not the trial judge. The discovery

violation at issue is not sufficiently extreme to justify a full and final dismissal of the case.

We therefore affirm that portion of the judgment of the Court of Appeals which held that

dismissal with prejudice was not warranted. We reverse the Court of Appeals’ finding that

the trial court abused its discretion when it determined that Kinzie had committed a discovery

violation. We reverse the judgment of the Circuit Court of the First Judicial District of Hinds

County dismissing the case with prejudice, and we remand the case for trial.




                                               10
¶14. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART
AND REVERSED IN PART. THE JUDGMENT OF THE CIRCUIT COURT OF THE
FIRST JUDICIAL DISTRICT OF HINDS COUNTY IS REVERSED AND THE CASE
IS REMANDED.

    WALLER, C.J., DICKINSON, P.J., LAMAR AND KING, JJ., CONCUR.
COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
RANDOLPH, P.J., CHANDLER AND PIERCE, JJ.

       COLEMAN, JUSTICE, DISSENTING:

¶15.   I am of the opinion that the standard of review carries the instant case. Abuse of

discretion is the most deferential standard. Under it, when the trial judge employs the correct

legal standard, it is not our job, as the appellate court, to substitute our judgment in place of

that of the trial judge’s. See Ashmore v. Mississippi Auth. on Educ. Television, 148 So. 3d

977, 982 (¶11) (Miss. 2014). Given that Kinzie engaged in a flagrant discovery violation,

I would uphold the trial judge’s dismissal of the case as a sanction for the discovery

violation. Accordingly, I respectfully dissent.

¶16.   In reaching its holding, the majority places great weight on Wood ex rel. Wood v.

Biloxi Public School District, 757 So. 2d 190, 193 (¶ 11) (Miss. 2000). I think Wood is

clearly distinguishable. Wood stated in a response to an interrogatory that, with his injuries,

he was “no longer . . . able to enjoy tinkering with automobiles as the stooping, bending, and

squatting are painful.” Wood, 757 So. 2d at 193 (¶ 11) (emphasis added). The defense then

presented video surveillance of Wood doing activities involving stooping, bending, and

squatting. Id. at 193-94 (¶ 11). The Court considered that Wood had qualified his statement

in his deposition, stating that he was able to do the activities, but performance of the

activities was painful – or not as enjoyable. Id. at 194 (¶ 13). The Court concluded that there



                                               11
was more than one reasonable interpretation to Wood’s statement, and it was not “clearly

established that Wood knowingly made false statements in discovery.” Id. at 194 (¶ 14).

The Wood Court further noted that the defendant “would have a much stronger case if Wood

had asserted during his deposition that he was in fact unable to perform his work functions

as before.” Id. at 194 (¶ 16) (emphasis added).

¶17.   Turning to the instant case, Kinzie stated in his interrogatory that he has the following

limitations:

       [N]ot able to cut grass or take care of lawn, unable to perform house cleaning,
       not able to drive but for very short periods of time, unable to stand or walk for
       long period[s] of time, cannot lift or carry objects or even groceries, difficulty
       engaging in usual sexual activities, unable to play and hold grandchildren, and
       other activities as before incident.

(Emphasis added.) The majority alludes that “as before incident” is a qualifier, meaning that

Kinzie was unable to perform the listed activities as well as he was able to perform them

before the incident. The majority then relates Wood’s qualifier – that he no longer enjoyed

the activities – to Kinzie’s alleged qualifier in the instant case. However, I, like the trial

judge, read “as before incident” to mean that Kinzie could not perform activities that he

could perform before the accident. In other words, Kinzie did not list all of the things he is

not able to do that he could do before the accident. My reading of Kinzie’s interrogatory

statement fits perfectly with what the Wood Court opined would make a stronger case. It

stated that the defendant “would have a much stronger case if Wood had asserted during his

deposition that he was in fact unable to perform his work functions as before.” Id. at 194 (¶

16) (emphasis added). Thus, Kinzie is distinguishable from Wood, and Wood provides

support for my argument.

                                              12
¶18.   The majority states: “Kinzie indisputably was injured. He went to an emergency room

immediately after his accident and, at that time, was diagnosed with central-disc protrusion,

disc desiccation, and disc bulging. He underwent an invasive surgical procedure on his

spine.” To be clear, my dissent does not question that Kinzie was injured, and the issue is

not whether he violated his doctor’s orders. The issue is whether the trial judge abused his

discretion when dismissing Kinzie’s claims for lying in his discovery responses.

¶19.   Kinzie stated he was: “not able to cut grass or take care of lawn, unable to perform

house cleaning, not able to drive but for very short periods of time, unable to stand or walk

for long period[s] of time, cannot lift or carry objects or even groceries . . . .” Kinzie also

stated in his deposition that, when he is outside the house, he has his cane with him. In the

videos obtained by Staffmark Investment, Kinzie was working on a building in the rear of

Kinzie’s home; he was climbing a ladder, carrying wood, performing carpentry tasks, and

not using his cane. Simply put, Kinzie engaged in activities he stated he was not able to do.

Thus, I do not agree with the majority’s characterization of Kinzie’s statements as merely

misleading.

¶20.   The Court has recently summed up the abuse of discretion standard of review:

       In short, if the trial court applies the “correct legal standard,” we must affirm
       the decision, regardless of what any one of us individually might have ruled
       had we been the judge, unless there is a “definite and firm conviction that the
       court below committed clear error.” See City of Jackson v. Rhaly, 95 So. 3d
       602, 607 (Miss. 2012) (citations omitted). Although reasonable minds might
       differ as to the disposition, there is no support in the record that the trial court
       failed to apply the correct legal standard in the case sub judice, for indeed, the
       trial judge cited our decisions in Pierce and Scoggins as authority, dispelling
       any notion of applying an incorrect standard. The trial judge relied upon the
       standard as announced by this Court. Abuse of discretion is the most
       deferential standard of review appellate courts employ. See Fitch v. Valentine,


                                               13
       959 So. 2d 1012, 1022 (Miss. 2007) (“this Court applies the deferential abuse
       of discretion standard of review”); see also White v. Thompson, 822 So. 2d
       1125, 1128 (Miss. Ct. App. 2002) (abuse of discretion “is highly deferential”).

Ashmore v. Mississippi Auth. on Educ. Television, 148 So. 3d 977, 982 (¶11) (Miss. 2014).

While I – or any other member of the Court – may not have chosen the same sanction had

I sat as the trial judge, I cannot agree that the lower court’s dismissal of the case rises to the

level of abuse of discretion.

¶21.   When a discovery violation has occurred, the Court has held that dismissal is

appropriate where “any other sanction beside dismissal would virtually allow the plaintiff to

get away with lying under oath without a meaningful penalty.” Pierce, 688 So. 2d at 1391.

The Pierce standard gives the trial judge discretion on whether dismissal is an appropriate

sanction. While the Court has held that consideration of lesser sentences is necessary in

American Telephone & Telegraph Co. v. Days Inn of Winona, 720 So. 2d 178, 182 (Miss.

1998), Days Inn dealt with the issue of failure to prosecute, which is an issue that is mainly

attributable to an attorney. Cf. Pierce, 688 So. 2d at 1388 (“Finally, dismissal may be

inappropriate when neglect is plainly attributable to an attorney rather than a blameless

client . . . .”). Thus, Days Inn is distinguishable from the instant case. Further, the Pierce

standard considers whether the discovery violation was due to an attorney, and in the instant

case, it was not.

¶22.   The trial judge weighed the Pierce factors, distinguished the case sub judice from

Wood, stated two specific examples of Kinzie misrepresenting his condition, and found that

“any sanction other than . . . dismissal . . . would result in this [c]ourt’s condoning the

plaintiff’s conduct.” See Ashmore, 148 So. 3d at 982 (¶ 11); see also Allen v. Nat’l R.R.

                                               14
Passenger Corp., 934 So. 2d 1006, 1013 (Miss. 2006) (holding that there was no “definite

and firm conviction” that the trial court had committed clear error when it weighed each

Pierce factor, and the record did not contain evidence of a clear error). In short, the trial

judge applied the correct legal standard, determined the plaintiff had engaged in two separate

discovery violations, and concluded that dismissal was the only appropriate remedy.

¶23.   Accordingly, I do not hold a definite and firm conviction that trial judge abused his

discretion in dismissing the case. I would affirm the judgment of the trial court.

       RANDOLPH, P.J., CHANDLER AND PIERCE, JJ., JOIN THIS OPINION.




                                             15
