                       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.

                                                    2
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

                                              3
                  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



                                                  4
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.

                                                        6
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:




                                                  15
        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).


                                                    16
¶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.




                                              17
