OF JUDGMENT: 01/19/2016
COUNTY CHANCERY COURT HON. MITCHELL M. LUNDY, JR., Judge
ATTORNEY FOR APPELLANT: KERRY MILLS BRYSON
ATTORNEYS FOR APPELLEE: GREGORY C. MORTON JOSEPH M. SPARKMAN,
Under our civil discovery rules, a party who fails to attend
his own properly noticed deposition may be sanctioned-up to
dismissal of his case. Here, the plaintiff in a will contest
intentionally skipped out on his deposition. This prompted
the chancellor to grant the defendant's motion for
sanctions, dismissing the will contest. While this sanction
was harsh, it was within the chancellor's discretion to
impose. We thus affirm.
Facts and Procedural History
After Robert A. Johnson's father died, his stepmother,
Myra Linda Henderson, filed a petition to probate his
father's will. This will left nothing to Johnson or his
brother. So on August 26, 2014, Johnson filed a petition to
contest the will.
On October 12, 2015, Henderson noticed Johnson's
deposition for October 22, 2015. The deposition was to take
place at Henderson's attorney's office in Southaven,
Mississippi. Johnson-a California resident-filed a motion to
quash and for a protective order. According to Johnson,
traveling to Mississippi on such short notice would have
caused him undue burden. He proposed Henderson either pay for
his travel to Mississippi, take his deposition remotely by
video, or come to California to depose him.
On November 9, 2015, the chancellor heard Johnson's
motion. The judge ruled Johnson had to come to
Mississippi to be deposed. And Johnson, through his counsel,
agreed he should be deposed in Mississippi. The chancellor
denied Johnson's motion to quash, but suggested Henderson
give Johnson at least thirty days' notice before deposing
him. This would allow Johnson to make travel arrangements for
his Mississippi deposition.
The same day as this ruling, Henderson filed a second notice
of deposition. This notice informed Johnson he would be
deposed thirty-two days later. The deposition was set for
December 11, 2015, at Henderson's attorney's office
Three days before the scheduled deposition, Henderson's
attorney contacted Johnson's counsel to confirm
Johnson's attendance. According to Henderson's
attorney, Johnson's counsel "very candidly told
[him] that his client was not going to be there on the
appointed hour of the deposition for December 11th."
Indeed, Johnson failed to appear for his deposition on
December 11. And Henderson immediately filed a motion for
sanctions, requesting Johnson's will contest be
dismissed. The chancellor heard this motion on January 5,
2016. During the hearing, Johnson's counsel argued
Johnson had been too busy to attend the deposition. He told
the chancellor Johnson is in the event-planning business. And
his important contracts in December and January prevented him
from leaving during that period. But he expressed Johnson was
willing to come to Mississippi in February, when business
The chancellor asked why Johnson had not filed anything but
instead chose to disregard the deposition and simply not show
up. Johnson's lawyer told the judge, "I wanted
to." But Johnson directed him to "his attorney in
California that handles his business contracts, and I was not
able to coordinate with that attorney to get me the
documentation to present to the Court."
Johnson's lawyer then spoke on the sanctions request. He
argued "if sanctions are imposed, they should be
financial." This would "allow [Johnson] to
compensate the opposing party but still have his day in court
here." The chancellor considered this suggestion, but
was not swayed by it. The chancellor felt a more serious
sanction was warranted. As the chancellor put it, "I
cannot allow somebody to file an action in a will contest or
otherwise in my Court and not make themselves available to
the Court for necessary discovery. I can't allow it.
It's frankly, contemptuous. And also, if it's not
done, all it does is slow down the wheels of justice."
For these reasons, the chancellor rejected Johnson's
counsel's suggestion and instead granted Henderson's
motion to dismiss.
Johnson timely appealed. Because the trial judge has
"considerable discretion in discovery matters, "
this Court reviews his decision for abuse of discretion.
Salts v. Gulf Nat'l Life Ins. Co., 872 So.2d
667, 670 (Miss. 2004).
The rule governing a party's failure to attend a properly
noticed deposition is very clear. "If a party . . .
fails . . . to appear before the officer who is to take his
deposition, after being served with a proper notice, . . .
the court in which the action is pending on motion . . . may
take any action authorized under subsections (A),
(B), and (C) of subsection (b)(2) of this rule."
M.R.C.P. 37(d) (emphasis added). One of the actions
authorized by subsection (b)(2) is the issuing of an order
"dismissing the action or proceeding or any part
thereof, or ...