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In re Estate of Johnson

Supreme Court of Mississippi, En Banc

June 1, 2017

IN THE MATTER OF THE ESTATE OF ROBERT ERNIE JOHNSON, DECEASED:
v.
MYRA LINDA HENDERSON, EXECUTRIX ROBERT A. JOHNSON

          DATE OF JUDGMENT: 01/19/2016

         DESOTO COUNTY CHANCERY COURT HON. MITCHELL M. LUNDY, JR., Judge

          ATTORNEY FOR APPELLANT: KERRY MILLS BRYSON

          ATTORNEYS FOR APPELLEE: GREGORY C. MORTON JOSEPH M. SPARKMAN, JR.

          MAXWELL, JUSTICE

         ¶1. 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.[1] 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.

         Background Facts and Procedural History

         ¶2. 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.

         ¶3. 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.

         ¶4. On November 9, 2015, the chancellor heard Johnson's motion.[2] 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.

         ¶5. 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 in Southaven.[3]

         ¶6. 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."

         ¶7. 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 slowed down.

         ¶8. 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."

         ¶9. 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.

         ¶10. 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).

         Discussion

         ¶11. 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 ...


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