KEITH BOWDRY, LAKEISHA BOWDRY AND MISSISSIPPI MUNICIPAL WORKERS' COMP GROUP APPELLANTS
T. MART, INC. D/B/A T. MART CONVENIENCE STORE AND TOMMY BROOKS OIL COMPANY D/B/A TEXACO GAS STATION APPELLEES
COUNTY CIRCUIT COURT HON. JAMES SETH ANDREW POUNDS TRIAL
ATTORNEYS FOR APPELLANTS: EDWARD BLACKMON BRADFORD JEROME
BLACKMON MARCUS AMIR WILLIAMS SHEA SCOTT
ATTORNEYS FOR APPELLEES: WILLIAM G. ARMISTEAD JOHN D. BRADY
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
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.
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.
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.
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
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.
"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.
"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.
The question here is whether the circuit court committed
reversible error in the decision to dismiss the Bowdrys'
complaint under Rule 37 and Pierce.
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.
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.
In his response to interrogatories, Keith provided the
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[, ]
(b) A description of the accident, incident, illness[, ] or
(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[.]
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.