Willie Kinzie v. Belk Department Stores, L.P., Belk, Inc. , 164 So. 3d 974 ( 2015 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2012-CT-01176-SCT
WILLIE KINZIE
v.
BELK DEPARTMENT STORES, L.P., BELK, INC.,
DAVID FLOWERS, SHANAY GRANT, KATHY
COFFEY, DONALD SMITH, NIKKI DAGGINS,
RAY FAJA AND STAFFMARK INVESTMENT,
LLC
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 07/05/2012
TRIAL JUDGE: HON. JEFF WEILL, SR.
TRIAL COURT ATTORNEYS: RICHARD PAUL WILLIAMS, III
COURTNEY MCREYNOLDS WILLIAMS
TERRIS CATON HARRIS
THOMAS LYNN CARPENTER, JR.
EDWARD J. CURRIE, JR.
REBECCA B. COWAN
COURT FROM WHICH APPEALED: CIRCUIT COURT OF THE FIRST JUDICIAL
DISTRICT OF HINDS COUNTY
ATTORNEYS FOR APPELLANT: RICHARD PAUL WILLIAMS, III
COURTNEY MCREYNOLDS WILLIAMS
DARYL MATTHEW NEWMAN
ATTORNEYS FOR APPELLEES: THOMAS LYNN CARPENTER, JR.
JOSEPH WALTER GILL
EDWARD J. CURRIE, JR.
REBECCA B. COWAN
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: THE JUDGMENT OF THE COURT OF
APPEALS IS AFFIRMED IN PART AND
REVERSED IN PART. THE JUDGMENT OF
THE CIRCUIT COURT OF THE FIRST
JUDICIAL DISTRICT OF HINDS COUNTY IS
REVERSED AND THE CASE IS
REMANDED - 03/12/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
KITCHENS, JUSTICE, FOR THE COURT:
¶1. Willie Kinzie sued Belk Department Stores, L.P., Belk, Inc., David Flowers, Shanay
Grant, Kathy Coffey, Donald Smith, Nikki Daggins, Ray Faja, Staffmark Investment, LLC,
and John Does 1-5 (Belk Defendants) for injuries he sustained while unloading a trailer that
had transported merchandise to a Belk retail store. The trial court dismissed Kinzie’s lawsuit
with prejudice, finding that Kinzie had misrepresented his injuries during discovery. The
Court of Appeals reversed the judgment of the trial court and remanded the case, holding that
Kinzie had not misrepresented his injuries and that the ultimate sanction of dismissal with
prejudice was not warranted. Having granted certioriari, we affirm, in part, the judgment of
the Court of Appeals; we reverse and remand the judgment of the Circuit Court of the First
Judicial District of Hinds County.
FACTS 1 AND PROCEDURAL HISTORY
Kinzie, a truck driver for twenty-eight years, was employed by Triangle
Trucking at the time of the injuries at issue. Triangle trucking had dispatched
Kinzie as a truck driver for Belk since 2007. At the time of his injury, Kinzie’s
job required him to pick up a loaded trailer of Belk cargo from the Belk
distribution center in Byram, Mississippi, and unload it at other Belk locations
throughout the United States.
On July 14, 2009, Kinzie picked up a loaded trailer at the Belk distribution
center in Byram and traveled to a Belk facility in Cullman, Alabama. In the
course of unloading his truck, which contained approximately 2,161 cases of
1
The facts are taken verbatim from the opinion of the Court of Appeals.
2
cargo, weighing a total of 18,229 2 pounds, Kinzie injured his back. Shortly
after he received his injury, an ambulance transported Kinzie to the emergency
room, where physicians diagnosed him with a central-disc protrusion, disc
desiccation, and disc bulging.
Kinzie initially engaged in a nonsurgical, conservative treatment. Then, on
January 4, 2010, Kinzie underwent a bilateral L4-5 hemilaminectomy and
discectomy surgery. On May 25, 2010, Kinzie’s treating physician, Dr.
Howard Holaday, explained that Kinzie possessed the capability to perform
sedentary to light duty work, with a lifting restriction of no greater than twenty
pounds, and restrictions on frequent stooping and bending. Although Kinzie
claimed to need a cane for stability and assistance, Dr. Holaday provided no
recommendation for Kinzie to use a cane. Kinzie asserted that Dr. Holaday
also warned him to wean himself off of the cane. The results of functional
capacity evaluations (FCEs) performed on April 20, 2010, and May 13, 2010,
showed that Kinzie could perform work on a sedentary-physical demand level
only. The FCEs also showed Kinzie possessed a dysfunctional sacroiliac (SI)
joint.
On October 21, 2010, Kinzie filed suit against the Appellees, alleging that his
back injury resulted from the Appellees’ negligent loading of light cargo items
on the bottom of the trailer and heavy cargo items on the top, as well as failure
to secure the cargo. Kinzie submits that a medical estimate projects his future
medical expenses will total $117,406.90. He also submits that his past medical
expenses, lost wages, future medical expenses, and future lost wages amount
to $664,890.37. During discovery, Kinzie, through counsel, provided
responses to interrogatories and also provided deposition testimony, all of
which responded to questions relating to his injury and explaining his present
physical limitations resulting from his injury.
Interrogatory 5 inquired about any opinions rendered by a doctor or medical
provider regarding Kinzie’s injuries. Kinzie objected to interrogatory 5 as
being outside the permissible scope of discovery, but answered by explaining
that he had been “assigned permanent work restrictions of no lifting greater
than twenty pounds,” was prohibited from “frequent stooping or bending,” and
“had been told that [he] can only perform work in the sedentary physical
demand level at eight hours a day, five days a week.” Kinzie further stated in
his response that he had “been told that [he has] a ten percent whole person
2
In response to a motion to dismiss in the trial court, Kinzie alleged that he had been
unloading a truck “carrying approximately 2,161 cases of cargo, weighing 18,229 lbs.” In
his complaint, Kinzie had alleged the gross weight to have been only 7,854 pounds.
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impairment rating.” Interrogatory 11 stated: “Describe all activities you were
able to perform or participate in prior to July 14, 2009, that you cannot
perform or participate in now.” Kinzie answered the interrogatory by stating:
As a result of the injuries sustained in this accident, I have the
following limitations: not able to cut grass or take care of the
lawn, unable to perform house cleaning, not able to drive but for
very short periods of time, unable to stand or walk for long
period[s] of time, cannot lift or carry objects or even groceries,
difficulty engaging in usual sexual activities, unable to play and
hold grandchildren, and other activities as before the incident.
Unbeknownst to Kinzie or his counsel, the Appellees hired an investigator to
perform surveillance of Kinzie during the period of August 19, 2011, to
September 22, 2011 (thirty-four days). Of the thirty-four day period
surveillance, twenty-five minutes of excerpts of video footage were provided.
The excerpts provided were edited and are not a complete video of the entire
thirty-four-day time period. As acknowledged, excerpts of the footage
provided show snapshots in time during the thirty-four-day surveillance
period. The investigator prepared a report of Kinzie’s activities during the
period. The excerpts of the video footage reveal Kinzie driving and walking
to the post office and his attorney’s office, and working with another man on
his shed in the backyard of his house. In response to the video evidence,
Kinzie claims that he never violated his physician’s restrictions, nor did he
perform any task that he stated in his discovery responses that he could not
perform, even while working on his shed.
Kinzie v. Belk Dep’t Stores, 2014 WL 3417612, **1-2 (Miss. Ct. App. July 15, 2014), cert.
granted, 156 So. 3d 981 (Miss. 2014).
¶2. Staffmark Investment filed a motion to dismiss pursuant to Mississippi Rule of Civil
Procedure 37(e),3 claiming that Kinzie had made misrepresentations under oath while
3
Mississippi Rule of Civil Procedure 37(e) provides:
[T]he court may impose upon any party or counsel such sanctions as may be just,
including the payment of reasonable expenses and attorneys’ fees, if any party or
counsel (i) fails without good cause to cooperate in the framing of an appropriate
discovery plan by agreement . . . or (ii) otherwise abuses the discovery process in
seeking, making or resisting discovery.
4
responding to interrogatories and during his deposition. This motion later was joined by the
remaining Belk Defendants. The trial court agreed and dismissed the case with prejudice on
July 5, 2012. The trial court concluded:
Based on the plaintiff’s false representations made in his interrogatory
response and in his deposition, along with the video surveillance the
defendants obtained on him, this Court finds that the plaintiff’s cause of action
should be dismissed with prejudice as a sanction for his conduct. This Court
further finds that no lesser sanction is appropriate under the circumstances.
¶3. Kinzie appealed, and we assigned the case to the Court of Appeals, which held:
“Based on the foregoing, we find no evidence of misrepresentation by Kinzie in his responses
to the interrogatories and deposition questions. As stated, we review Kinzie’s response to
interrogatory 11 in the context of all of the interrogatory responses . . . .” Kinzie, 2014 WL
3417612, at *7. We granted certioriari to clarify that, though Kinzie did commit a discovery
violation, the ultimate sanction of dismissal with prejudice was not warranted.
STANDARD OF REVIEW
¶4. “Trial courts are afforded broad discretion in discovery matters, and this Court will
not overturn a trial court’s decision unless there is an abuse of discretion . . . .” Ashmore v.
Miss. Auth. on Educ. Television, 148 So. 3d 977, 981 (Miss. 2014). “[I]f the trial court
applies the ‘correct legal standard,’ we must affirm the decision, regardless of what any one
of us individually might have ruled had we been the judge, unless there is a ‘definite and firm
conviction that the court below committed clear error.’” Id. at 982 (quoting City of Jackson
v. Rhaly, 95 So. 3d 602, 607 (Miss. 2012)). Thus, the Court should engage in “measured
Miss. R. Civ. P. 37(e).
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restraint in conducting appellate review” and should not decide whether it would have
dismissed the original action but whether dismissal amounted to clear error. Ashmore, 148
So. 3d at 982.
ANALYSIS
¶5. This Court has made it clear that a “trial court should dismiss a cause of action for
failure to comply with discovery only under the most extreme circumstances.” Pierce v.
Heritage Props., Inc., 688 So. 2d 1385, 1388 (Miss. 1997) (emphasis added). Accordingly,
we must determine whether the circumstances before us are sufficiently extreme to justify
dismissal. An analysis of the relevant caselaw reveals that they are not.
¶6. In Pierce, this Court held that dismissal was appropriate because the plaintiff had flat-
out lied under oath about the existence of an eyewitness to the incident that had caused the
plaintiff’s alleged injuries and had “consistently obstructed the progress of the litigation by
filing admittedly false responses to various discovery requests and by swearing to false
testimony in depositions.” Id. at 1390. This Court determined that dismissal was appropriate
because the plaintiff had acted in bad faith, and that any sanction other than “dismissal would
virtually allow the plaintiff to get away with lying under oath. . . .” Id. at 1390-91. The Court
noted, however, that it would remain very reluctant to affirm such a harsh sanction, and did
so in that case only because it provided “the paradigm situation in which the plaintiff
knowingly refused to be forthcoming and actively withheld the truth from the court and gave
a great deal of perjured testimony.” Id. at 1391 (emphasis added).
¶7. In other cases in which this Court has affirmed dismissal, the discovery violations
were similarly egregious. In Scoggins v. Ellzey Beverages, Inc., 743 So. 2d 990 (Miss.
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1999), the plaintiff, who could perfectly recall the details of several aspects of her life for
many years, completely failed to disclose several invasive medical procedures and doctors’
visits that were relevant to her claim. The trial court in that case found that the plaintiff made
an “apparently deliberate attempt to subvert the judicial process,” and she presented “no
credible explanation for the total lack of congruence between her testimony and her medical
records.” Id. at 994. This Court affirmed, again noting that this case presented a rare instance
“where the conduct of a party is so egregious that no other sanction will meet the demands
of justice.” Id. at 997.
¶8. More recently, in Ashmore v. Mississippi Authority on Educational Television, 148
So. 3d 977, 985 (Miss. 2014), we affirmed a dismissal where the plaintiff had “lied by
concealing a right-knee surgery and degenerative joint disease in his right knee.” The
plaintiff also had hidden the existence of “a subsequent left-knee injury or degenerative disc
disease in his back, despite medical reports to the contrary.” Id. Once again, the discovery
violations that justified dismissal were clear and unequivocal falsehoods.
¶9. However, where the discovery violation at issue is less extreme and open to potential
truthful interpretations, this Court will not hesitate to reverse a trial court’s Rule 37 dismissal.
In Wood ex rel. Wood v. Biloxi Public School District, 757 So. 2d 190, 193 (Miss. 2000),
the plaintiff responded to an interrogatory regarding the nature of his injuries by stating, “I
no longer am able to enjoy tinkering with automobiles as the stooping, bending, and
squatting are painful.” After viewing undercover surveillance video of the plaintiff “walking
normally, squatting, twisting, bending, and generally performing normal daily functions
without any indication of impairment or pain,” the trial court dismissed the plaintiff’s case.
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Id. This Court reversed, finding that “the only discovery response which was contradicted
by evidence at the hearing [on the motion to dismiss] was one ambiguously worded response
to one interrogatory question.” Id. at 194. As the plaintiff’s response indicated that he could
still perform certain tasks, just with less enjoyment than before, the Court held that the
defendants did not establish that the plaintiff “knowingly made false statements in discovery
and it was certainly not established that [the plaintiff] had engaged in a pattern of such false
responses.” Id. (emphasis added). The Court held “that the alleged untruthfulness in Wood’s
interrogatories, if any, d[id] not constitute a sufficiently egregious discovery violation such
that no other sanction will meet the demands of justice.” Id. at 195.
¶10. We find the discovery violation in this case to be more similar to the alleged discovery
violation in Wood than the unequivocally false and misleading discovery violations found
in Pierce, Scoggins, and Ashmore. In Wood, the plaintiff stated that he could no longer enjoy
certain activities as he could before being injured. Here, Kinzie stated that he could not
perform several activities as he could before his injury.4 He was truthful when it came to his
medical record and his medically diagnosed work restrictions. Kinzie indisputably was
injured. He went to an emergency room immediately after his accident and, at that time, was
4
As related above, Kinzie’s answer to Interrogatory 11 was as follows:
I have the following limitations: not able to cut grass or take care of lawn,
unable to perform house cleaning, not able to drive but for very short periods
of time, unable to stand or walk for long period[s] of time, cannot lift or carry
objects or even groceries, difficulty engaging in usual sexual activities, unable
to play and hold grandchildren, and other activities as before incident.
(Emphasis added.)
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diagnosed with central-disc protrusion, disc desiccation, and disc bulging. He underwent an
invasive surgical procedure on his spine. The activity observed in the undercover video did
not stray outside of his medical work restrictions, and it did not encompass any of the
specific activities that he stated he no longer could perform. The trial court found this to be
a discovery violation. While the trial court cannot be said to have been manifestly wrong in
its determination that there was, in fact, a discovery violation, the severe sanction of
dismissal amounts to clear, reversible error amounting to an abuse of discretion.
¶11. Kinzie did not blatantly lie about the existence of a witness, as did the plaintiff in
Pierce, nor did he completely misrepresent years of medical history and procedures, as did
the plaintiff in Scoggins, nor did he hide any other surgeries, as did the plaintiff in Ashmore.
The Court finds no “total lack of congruence” between Kinzie’s responses and his medical
records, as the trial court found in Scoggins. Scoggins, 743 So. 2d at 994. Nor do we find
this to be “the paradigm situation in which the plaintiff knowingly refused to be forthcoming
and actively withheld the truth from the court and gave a great deal of perjured testimony”
as this Court found in Pierce. Pierce, 688 So. 2d at 1391 (emphasis added). Instead, and
similar to the plaintiff in Wood, Kinzie answered an interrogatory about the extent of his
injuries in a way that the trial court thought was misleading. And here, although the trial
court found Kinzie’s response to be false, the perceived falsehood arose in an isolated
incident, and it certainly has not been established that Kinzie’s statements in discovery
indicate any kind of pattern of misleading or false responses.
¶12. Analogously, this Court has reversed a trial court’s dismissal based on Rule of Civil
Procedure 41(b) where the trial court failed to consider lesser sanctions, including “fines,
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costs, or damages against plaintiff or his counsel, attorney disciplinary measures, conditional
dismissal, dismissal without prejudice, and explicit warnings.” Am. Tel. & Tel. Co. v. Days
Inn of Winona, 720 So. 2d 178, 182 (Miss. 1998) (quotation omitted). Just as this Court
found then, in this case, “it is not at all certain that [lesser] sanctions would have been futile
in expediting the proceedings.” Id. Although we do not find, as did the Court of Appeals, that
the trial court abused its discretion when it determined that Kinzie had committed a discovery
violation, we hold that the trial court erred when it dismissed the case completely as a result
of that violation while paying mere lip service to the possibility and practicality of lesser
sanctions.
CONCLUSION
¶13. Dismissal is appropriate only under the most extreme circumstances and only where
lesser sanctions will not suffice. Pierce, 688 So. 2d at 1388-89. This is not an extreme case,
and lesser sanctions can deter misleading responses without dismissing Kinzie’s claims
altogether. A jury will watch this video, and that may influence its ultimate determination.
But a jury ought to make that ultimate determination, not the trial judge. The discovery
violation at issue is not sufficiently extreme to justify a full and final dismissal of the case.
We therefore affirm that portion of the judgment of the Court of Appeals which held that
dismissal with prejudice was not warranted. We reverse the Court of Appeals’ finding that
the trial court abused its discretion when it determined that Kinzie had committed a discovery
violation. We reverse the judgment of the Circuit Court of the First Judicial District of Hinds
County dismissing the case with prejudice, and we remand the case for trial.
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¶14. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART
AND REVERSED IN PART. THE JUDGMENT OF THE CIRCUIT COURT OF THE
FIRST JUDICIAL DISTRICT OF HINDS COUNTY IS REVERSED AND THE CASE
IS REMANDED.
WALLER, C.J., DICKINSON, P.J., LAMAR AND KING, JJ., CONCUR.
COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
RANDOLPH, P.J., CHANDLER AND PIERCE, JJ.
COLEMAN, JUSTICE, DISSENTING:
¶15. I am of the opinion that the standard of review carries the instant case. Abuse of
discretion is the most deferential standard. Under it, when the trial judge employs the correct
legal standard, it is not our job, as the appellate court, to substitute our judgment in place of
that of the trial judge’s. See Ashmore v. Mississippi Auth. on Educ. Television, 148 So. 3d
977, 982 (¶11) (Miss. 2014). Given that Kinzie engaged in a flagrant discovery violation,
I would uphold the trial judge’s dismissal of the case as a sanction for the discovery
violation. Accordingly, I respectfully dissent.
¶16. In reaching its holding, the majority places great weight on Wood ex rel. Wood v.
Biloxi Public School District, 757 So. 2d 190, 193 (¶ 11) (Miss. 2000). I think Wood is
clearly distinguishable. Wood stated in a response to an interrogatory that, with his injuries,
he was “no longer . . . able to enjoy tinkering with automobiles as the stooping, bending, and
squatting are painful.” Wood, 757 So. 2d at 193 (¶ 11) (emphasis added). The defense then
presented video surveillance of Wood doing activities involving stooping, bending, and
squatting. Id. at 193-94 (¶ 11). The Court considered that Wood had qualified his statement
in his deposition, stating that he was able to do the activities, but performance of the
activities was painful – or not as enjoyable. Id. at 194 (¶ 13). The Court concluded that there
11
was more than one reasonable interpretation to Wood’s statement, and it was not “clearly
established that Wood knowingly made false statements in discovery.” Id. at 194 (¶ 14).
The Wood Court further noted that the defendant “would have a much stronger case if Wood
had asserted during his deposition that he was in fact unable to perform his work functions
as before.” Id. at 194 (¶ 16) (emphasis added).
¶17. Turning to the instant case, Kinzie stated in his interrogatory that he has the following
limitations:
[N]ot able to cut grass or take care of lawn, unable to perform house cleaning,
not able to drive but for very short periods of time, unable to stand or walk for
long period[s] of time, cannot lift or carry objects or even groceries, difficulty
engaging in usual sexual activities, unable to play and hold grandchildren, and
other activities as before incident.
(Emphasis added.) The majority alludes that “as before incident” is a qualifier, meaning that
Kinzie was unable to perform the listed activities as well as he was able to perform them
before the incident. The majority then relates Wood’s qualifier – that he no longer enjoyed
the activities – to Kinzie’s alleged qualifier in the instant case. However, I, like the trial
judge, read “as before incident” to mean that Kinzie could not perform activities that he
could perform before the accident. In other words, Kinzie did not list all of the things he is
not able to do that he could do before the accident. My reading of Kinzie’s interrogatory
statement fits perfectly with what the Wood Court opined would make a stronger case. It
stated that the defendant “would have a much stronger case if Wood had asserted during his
deposition that he was in fact unable to perform his work functions as before.” Id. at 194 (¶
16) (emphasis added). Thus, Kinzie is distinguishable from Wood, and Wood provides
support for my argument.
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¶18. The majority states: “Kinzie indisputably was injured. He went to an emergency room
immediately after his accident and, at that time, was diagnosed with central-disc protrusion,
disc desiccation, and disc bulging. He underwent an invasive surgical procedure on his
spine.” To be clear, my dissent does not question that Kinzie was injured, and the issue is
not whether he violated his doctor’s orders. The issue is whether the trial judge abused his
discretion when dismissing Kinzie’s claims for lying in his discovery responses.
¶19. Kinzie stated he was: “not able to cut grass or take care of lawn, unable to perform
house cleaning, not able to drive but for very short periods of time, unable to stand or walk
for long period[s] of time, cannot lift or carry objects or even groceries . . . .” Kinzie also
stated in his deposition that, when he is outside the house, he has his cane with him. In the
videos obtained by Staffmark Investment, Kinzie was working on a building in the rear of
Kinzie’s home; he was climbing a ladder, carrying wood, performing carpentry tasks, and
not using his cane. Simply put, Kinzie engaged in activities he stated he was not able to do.
Thus, I do not agree with the majority’s characterization of Kinzie’s statements as merely
misleading.
¶20. The Court has recently summed up the abuse of discretion standard of review:
In short, if the trial court applies the “correct legal standard,” we must affirm
the decision, regardless of what any one of us individually might have ruled
had we been the judge, unless there is a “definite and firm conviction that the
court below committed clear error.” See City of Jackson v. Rhaly, 95 So. 3d
602, 607 (Miss. 2012) (citations omitted). Although reasonable minds might
differ as to the disposition, there is no support in the record that the trial court
failed to apply the correct legal standard in the case sub judice, for indeed, the
trial judge cited our decisions in Pierce and Scoggins as authority, dispelling
any notion of applying an incorrect standard. The trial judge relied upon the
standard as announced by this Court. Abuse of discretion is the most
deferential standard of review appellate courts employ. See Fitch v. Valentine,
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959 So. 2d 1012, 1022 (Miss. 2007) (“this Court applies the deferential abuse
of discretion standard of review”); see also White v. Thompson, 822 So. 2d
1125, 1128 (Miss. Ct. App. 2002) (abuse of discretion “is highly deferential”).
Ashmore v. Mississippi Auth. on Educ. Television, 148 So. 3d 977, 982 (¶11) (Miss. 2014).
While I – or any other member of the Court – may not have chosen the same sanction had
I sat as the trial judge, I cannot agree that the lower court’s dismissal of the case rises to the
level of abuse of discretion.
¶21. When a discovery violation has occurred, the Court has held that dismissal is
appropriate where “any other sanction beside dismissal would virtually allow the plaintiff to
get away with lying under oath without a meaningful penalty.” Pierce, 688 So. 2d at 1391.
The Pierce standard gives the trial judge discretion on whether dismissal is an appropriate
sanction. While the Court has held that consideration of lesser sentences is necessary in
American Telephone & Telegraph Co. v. Days Inn of Winona, 720 So. 2d 178, 182 (Miss.
1998), Days Inn dealt with the issue of failure to prosecute, which is an issue that is mainly
attributable to an attorney. Cf. Pierce, 688 So. 2d at 1388 (“Finally, dismissal may be
inappropriate when neglect is plainly attributable to an attorney rather than a blameless
client . . . .”). Thus, Days Inn is distinguishable from the instant case. Further, the Pierce
standard considers whether the discovery violation was due to an attorney, and in the instant
case, it was not.
¶22. The trial judge weighed the Pierce factors, distinguished the case sub judice from
Wood, stated two specific examples of Kinzie misrepresenting his condition, and found that
“any sanction other than . . . dismissal . . . would result in this [c]ourt’s condoning the
plaintiff’s conduct.” See Ashmore, 148 So. 3d at 982 (¶ 11); see also Allen v. Nat’l R.R.
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Passenger Corp., 934 So. 2d 1006, 1013 (Miss. 2006) (holding that there was no “definite
and firm conviction” that the trial court had committed clear error when it weighed each
Pierce factor, and the record did not contain evidence of a clear error). In short, the trial
judge applied the correct legal standard, determined the plaintiff had engaged in two separate
discovery violations, and concluded that dismissal was the only appropriate remedy.
¶23. Accordingly, I do not hold a definite and firm conviction that trial judge abused his
discretion in dismissing the case. I would affirm the judgment of the trial court.
RANDOLPH, P.J., CHANDLER AND PIERCE, JJ., JOIN THIS OPINION.
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