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Bowdry v. T. Mart, Inc.

Court of Appeals of Mississippi

March 6, 2018

KEITH BOWDRY, LAKEISHA BOWDRY AND MISSISSIPPI MUNICIPAL WORKERS' COMP GROUP APPELLANTS
v.
T. MART, INC. D/B/A T. MART CONVENIENCE STORE AND TOMMY BROOKS OIL COMPANY D/B/A TEXACO GAS STATION APPELLEES

         DATE OF JUDGMENT: 09/26/2016

         LEE COUNTY CIRCUIT COURT HON. JAMES SETH ANDREW POUNDS TRIAL JUDGE

          ATTORNEYS FOR APPELLANTS: EDWARD BLACKMON BRADFORD JEROME BLACKMON MARCUS AMIR WILLIAMS SHEA SCOTT

          ATTORNEYS FOR APPELLEES: WILLIAM G. ARMISTEAD JOHN D. BRADY

         EN BANC

          GRIFFIS, P.J.

         ¶1. Lakeisha and Keith Bowdry appeal the circuit court's dismissal of their negligence claims based on discovery violations. This case considers whether the dismissal was appropriate under Mississippi Rule of Civil Procedure 37 and Pierce v. Heritage Properties, Inc., 688 So.2d 1385 (Miss. 1997). We find reversible error and remand for further proceedings.

         FACTS

         ¶2. On April 15, 2011, Keith was on duty as a Tupelo police officer. He was pulling out of a Texaco gas station when his vehicle collided with another vehicle traveling on South Gloster Street in Tupelo, Mississippi. As a result of the accident, Keith was taken to North Mississippi Medical Center where he was treated for complaints of pain in his head, neck, left knee, and lower back.

         ¶3. Keith and his wife Lakeisha filed a complaint against T. Mart Inc. and Tommy Brooks Oil Company (collectively "T. Mart"), the owners of the Texaco gas station. The complaint alleged that the shrubbery on T. Mart's property negligently inhibited the sight line of an exiting vehicle. Keith sought to recover damages from the accident, and Lakeisha sought damages for loss of consortium.

         ¶4. Keith was served with interrogatories related to his prior medical history and treatment. He was asked whether he ever had been involved in any other accident or incident or if he had any illness or sickness of any kind of any type or severity that required or resulted in him being seen or treated by any medical professional. In response, Keith disclosed a motor-vehicle accident that occurred on August 25, 2005, in a Tupelo Walmart parking lot. Keith's response did not provide information as to any injuries that resulted from the accident. But, the response stated that Keith saw two separate medical providers and a physical therapist following the incident.

         ¶5. Keith later was deposed by T. Mart. Keith was asked whether he ever had experienced prior neck problems, and he responded that he had not. Keith also was asked about lower-back issues, and he responded-"[n]ot lower back." After the deposition, T. Mart obtained Keith's prior medical records. The records revealed that he had received medical treatment for his neck and lower back after the 2005 accident.

         ¶6. T. Mart believed Keith's discovery responses were false. T. Mart then filed a motion to dismiss the complaint pursuant to Rule 37(b)(2) and 37(e). After a hearing, the trial court granted the motion to dismiss with prejudice. The trial court concluded that, under the circumstances, no sanction less than dismissal would be appropriate to satisfy the deterrent value of Rule 37. Also, because Lakeisha's claim was derivative in nature, it too was dismissed with prejudice.

         STANDARD OF REVIEW

         ¶7. "A trial court's dismissal of a cause of action as a sanction for discovery abuse is reviewed for abuse of discretion." Avare v. Gulfside Casino P'ship, 178 So.3d 796, 798 (¶4) (Miss. Ct. App. 2013). "When [an appellate court] reviews a decision that is within the trial court's discretion, it first asks if the court below applied the correct legal standard." Pierce, 688 So.2d at 1388. "If the trial court applied the right standard, then [the c]ourt considers whether the decision was one of several reasonable ones [that] could have been made." Id. Thus, "[a]n appellate court will affirm a trial court's dismissal of a cause of action as a sanction 'unless there is a definite and firm conviction that the trial court committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors.'" Avare, 178 So.3d at 798 (¶4) (quoting Pierce, 688 So.2d at 1388). "We will, however, review issues of law de novo." Id.

         ¶8. "We recognize that the exercise of dismissal power should be limited to 'the most extreme circumstances.'" Id. (quoting Gilbert v. Wal-Mart Stores Inc., 749 So.2d 361, 364 (¶6) (Miss. Ct. App. 1999)). We further recognize that "[an appellate c]ourt's duty is to decide not whether it would have dismissed the action as an original matter, but whether the [trial] court abused its discretion in so doing." Pierce, 688 So.2d at 1388-89.

         ANALYSIS

         ¶9. The question here is whether the circuit court committed reversible error in the decision to dismiss the Bowdrys' complaint under Rule 37 and Pierce.

         ¶10. In Pierce, the plaintiff was injured when a ceiling fan in her apartment fell onto her. Id. at 1387. During discovery and at trial, she concealed the fact that another person had been present in the room when the ceiling fan fell. Id. at 1387-88. On numerous occasions, through extensive discovery, and in response to interrogation at the first trial, she maintained that she had been alone when the accident occurred. Id. at 1387. After a new trial was granted for other reasons, it was discovered that she had lied. Id. at 1388. The circuit court found that such a blatant lie was a reason to dismiss her case, even though there was no prejudice to the defendants. Id.

         ¶11. The supreme court's analysis in Pierce provides us with the framework we must consider in this appeal:

Pierce contends that the circuit court erred and abused its discretion by imposing the sanction of dismissal with prejudice, thereby barring her from any recovery for injuries caused when the ceiling fan fell on her. Specifically, the appellant argues that the trial court misapplied Mississippi Rule of Civil Procedure 37(b)(2) by imposing the "death penalty" and dismissing her lawsuit.
The decision to impose sanctions for discovery abuse is vested in the trial court's discretion. The provisions for imposing sanctions are designed to give the court great latitude. The power to dismiss is inherent in any court of law or equity, being a means necessary to 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, 688 So.2d at 1388 (internal citations and quotation marks omitted). It is very important to note the supreme court's express word of caution and admonition: "Nevertheless, the trial court should dismiss a cause of action for failure to comply with discovery only under the most extreme circumstances." Id. (emphasis added).

         ¶12. In his response to interrogatories, Keith provided the following information:

INTERROGATORY NUMBER 9: Before or after the date of the occurrence [that] is the subject of this action, had you ever been involved in any other accident or incident or had any illness or sickness of any kind and of any type or severity [that] required you to be seen or resulted in your being seen or treated by any doctor, hospital[, ] or other medical provider? If so, please state in detail the following:
(a) The date and place of the accident, incident, illness[, ] or sickness;
(b) A description of the accident, incident, illness[, ] or sickness;
(c) Names, addresses[, ] and phone numbers of witnesses to the accident, incident, illness[, ] or sickness;
(d) The name of the defendant (or person or entity against whom you made your claim), if lawsuit, action[, ] or claim was made on your behalf;
(e) The court or other tribunal where any action or claim was filed, together with any identifying action number;
(f) The names, addresses[, ] and phone numbers of all medical doctors, any other medical personnel, hospitals, or other medical facilities or medical providers wherein you received treatment as a result of the accident, incident, illness[, ] or sickness[] identified above.
RESPONSE: Plaintiff, Keith Bowdry was involved in an automobile accident in 2005 on the Wal-Mart parking lot in Tupelo, Mississippi, when [his] vehicle was struck by a vehicle being driven the wrong way by an employee of Lencare Medical Supply. [Keith] does not recall the name of the driver. [Keith] was seen by a doctor at Semmes Murphy Neurologic and Spine Institute[, ] . . . Debra Hill, NP, and Reenea Willis, PT, of Rehab Solutions, PLLC. No lawsuit was filed[;] however, [Keith] was compensated for damages by the insurance company for Lencare Medical Supply.
INTERROGATORY NUMBER 10: Please identify the names, addresses[, ] and phone numbers of your regular family doctor and the names, addresses[, ] and phone numbers of any other medical doctors or any other medical personnel not previously listed, who have treated you or given you any medical advice for the past ten years.
RESPONSE: Dr. Norris Crump - 898 Lynden Blvd., Tupelo, MS 38801[;] and Debra Hill, NP - Plantersville Clinic, 2489 Main St., Plantersville, MS 38862[.]

         ¶13. In his deposition, Keith responded to the following questions about his prior neck or lower-back issues:

Q: Before this accident, had you ever had any prior problems with your neck?
A: No, sir.
Q: [Had] you ever had to have any medical treatment for your neck before the accident?
A: When I was a kid, I had a cyst on the back of my neck . . . . I was like, maybe, 12 or 13, something like that. ...

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