Beck v. Sapet, 2004-CA-02488-SCT.

• Decision Date: 14 September 2006
• Docket Number: No. 2004-CA-02488-SCT.,2004-CA-02488-SCT.
• Parties: John BECK, Jr. and Kim Beck v. Mario SAPET, Jr. d/b/a Sapet Design & Construction.
• Court: Mississippi Supreme Court

937 So.2d 945

John BECK, Jr. and Kim Beck v. Mario SAPET, Jr. d/b/a Sapet Design & Construction.

No. 2004-CA-02488-SCT.

Supreme Court of Mississippi.

September 14, 2006.

James (Jay) R. Foster, attorney for appellants.

Richard Eugene Cassady, W. Edward Hatten, Jr., Gulfport, attorneys for appellee.

EN BANC.

COBB, Presiding Justice, for the Court.

¶ 1. John Beck, Jr. and wife Kim Beck filed a complaint in the Harrison County Circuit Court, Second Judicial District, against Mario Sapet, Jr. d/b/a Sapet Design and Construction, citing numerous claims arising out of a contract whereby Sapet was to construct their new home. The Becks sought $300,000 in actual damages, $100,000 in punitive damages, and $75,000 in attorney fees. Sapet timely responded with his answer and defenses and applied for an order to proceed with mediation pursuant to the terms of the contract and a stay of proceedings while the matter was submitted to mediation.

¶ 2. The trial court ultimately granted Sapet's Motion to Dismiss with Prejudice on November 3, 2004, on the basis of the Becks' repeated failure to timely provide full and complete supplemental responses to written discovery requests. The last failure, which triggered the dismissal, was the Becks's failure to comply with the court's October 19, 2004, order to supplement discovery within 10 days of the court's order.

¶ 3. The Becks' Motion for Reconsideration and for Relief from Judgment was denied on December 10, 2004, and they timely appealed, stating the following issues: (1) they provided every document related to this case, and (2) they properly answered the interrogatories.

¶ 4. After due consideration, we affirm the judgment of the trial court.

FACTS

¶ 5. On September 1, 1999, the Becks entered into a written construction contract with Sapet for the construction of a large new home, at a cost of more than $1 million. Because the work was not completed within the stated time of "approximately 12 months", and in the manner which the Becks expected under the terms of the contract, they filed a complaint against Sapet, on April 1, 2003, for breach of the construction contract, conversion of funds, detrimental reliance, negligence in the construction, gross negligence, breach of actual and implied warranty of fitness and for an accounting. The following is an abbreviated time line of the pertinent events in the trial court:

04/01/2003 Complaint filed.

06/06/2003 Sapet filed his answer and defenses.

06/10/2003 Sapet filed notice of discovery to the court that interrogatories and requests for productions of documents had been propounded to the Becks.

08/29/2003 The Becks filed an unopposed motion to extend time for discovery and hold the case in inactive status because John Beck was to undergo heart surgery.

11/14/2003 Letter from Sapet's counsel to the Becks' original attorney, inquiring as to the status of John Beck's health and his availability for deposition, and noting the need to get the Becks' written responses to the outstanding discovery.

12/19/2003 Similar letter pointing out that no response was received to the earlier letter and asking counsel for a response as soon as possible.

01/09/2004 A third similar letter noting no response to past two letters and saying would like to hear something as soon as possible.

01/26/2004 Sapet files his first motion to compel, stating "recent inquiries into the status of [plaintiff's] health and ability to proceed with discovery and litigation of this lawsuit that they filed have gone unanswered."

05/03/2004 The Becks' original counsel filed a Motion to Substitute Counsel, requesting the court to allow Jay Foster to replace him as counsel for the Becks. Neither of the Becks' counsel responded to the motion to compel, nor did Foster, as the new attorney, request additional time to acclimate himself to the case or to answer the discovery.

05/17/2004 Trial court grants Sapet's January 26, 2004, motion to compel discovery. This order stated the Becks must provide complete responses to discovery within 15 days or face sanctions.

05/19/2004 Order entered allowing substitution of counsel for the Becks and naming Foster. Still no request was made by Foster for additional time to complete responses to discovery.

06/01/2004 Deadline for complete responses to discovery passes without response.

06/09/2004 Sapet's counsel writes Foster to advise that responses are now overdue and a Motion to Dismiss will be filed if responses are not filed by June 14, together with potential dates for the Becks to be deposed.

06/11/2004 Foster faxed the Becks' unsigned draft responses to discovery, but did not follow up with final, signed responses or request additional time to do so.

06/14/2004 Sapet's counsel writes to Foster thanking him for the draft discovery responses and requesting that, when they are completed and signed, Foster needs to have: supplemented Interrogatory 3; had a copy made of the audio and video tapes identified in Interrogatory 4 (Sapet to pay cost); copied other audio and video tapes, if any, which are referenced in interrogatories 5, 6, and 7; supplement No. 12 (Sapet to pay cost); and supplemented No. 13 to indicate what is contended in the "approximately $250,000" in damages. Further Sapet's attorney asked when he could come and inspect and copy the documents referenced in nos. 14, 18, 19, and 21 of the Request for Production. Finally he reminded Foster that the answer to Nos. 15 and 16, saying "previously provided" was incorrect, as he had received nothing in response.

06/30/2004 Still not having received the requested completed and signed responses nor the other productions, Sapet filed a motion to dismiss, or alternatively for sanctions, because timely and proper response from the Becks to the May 17 order had not been received. At this point, more than one year had passed since the Interrogatories and Requests for Production were first served on the Becks.

07/02/2004 The Becks responded to Sapet's discovery requests. A number of the answers simply said "The Plaintiff has boxes of documents that are available for copying at the office of Jay Foster."

10/07/2004 Sapet files his second motion to compel and for sanctions, arguing that the Becks' responses to Sapet's interrogatories and requests for documents were still incomplete.

10/19/2004 Trial court once again grants Sapet's motion to compel, requiring the Becks to supplement their responses to Sapet's requests for interrogatories numbers 2, 3, 4, 12, and 13, as well as Sapet's request for documents numbers 3, 4, 5, 6, 7, and 10, to be signed by the Becks "under oath, and delivered to [Sapet's] counsel within 10 days of the entry of this Order, failing which the case will be dismissed with prejudice without further notice."

10/20/2004 Sapet's counsel sends Foster a four page URCCC 4.04 good faith letter, very specifically stating each response which was considered incomplete and why, and stating that they "really would rather resolve this matter without having to file another Motion to Compel."

10/24/2004 Foster responds with terse letter, defending his actions as to each response.

10/29/2004 Becks do not provide any supplements, but rather, on the 10th day, filed a motion to reconsider with the trial court.

11/03/2004 After a hearing on the motion to reconsider, the trial court entered its final judgment dismissing the case with prejudice because the Becks did not comply with the October 19, 2004, order compelling discovery. However, the trial court did not rule on the motion to reconsider.

12/01/2004 Becks filed a motion for relief from judgment with the trial court.

12/10/2004 Trial court denied the Becks' motion to reconsider and motion for relief from judgment.

DISCUSSION

¶ 6. The sole issue raised on appeal is whether the trial court erred in dismissing the case with prejudice. The standard of review this Court applies to a trial court's dismissal of an action with prejudice as a result of a discovery violation is abuse of discretion. Salts v. Gulf Nat'l Life Ins. Co., 872 So.2d 667, 670 (Miss.2004). Trial courts have considerable discretion in discovery matters, and their decisions will not be overturned unless there is an abuse of discretion. Robert v. Colson, 729 So.2d 1243, 1245 (Miss. 1999). Further, this Court looks to the following factors to determine if a dismissal with prejudice is the proper remedy for discovery violations: (1) whether the discovery violation resulted from willfulness or an inability to comply; (2) whether the deterrent value of Rule 37 could not have been achieved through lesser sanctions; (3) whether the other party's trial preparation has been prejudiced; (4) whether the failure to comply is attributable to the party itself, or their attorney; and (5) whether the failure to comply was a consequence of simple confusion or a misunderstanding of the trial court's order. Pierce v. Heritage Props. Inc., 688 So.2d 1385, 1389 (Miss.1997). This Court only reverses if it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors. Caracci v. Int'l Paper Co., 699 So.2d 546, 556 (Miss.1997).

¶ 7. This Court has stated "failure to make or cooperate in discovery should first be resolved by making a motion in the proper court requesting an order compelling such discovery." Robert, 729 So.2d at 1247 (citing M.R.C.P. 37(a)(2)). If the party fails to comply with this first order to compel, the trial judge may then sanction that party in accordance with M.R.C.P. 37(b), which includes dismissing the case with prejudice. Id. We have also held that:

dismissal is to be used as a sanction only as a last resort. "Lower courts should be cautious in either dismissing a suit or pleadings or refusing to permit testimony . . . . The reason for this is obvious. Courts are courts of justice not of form. The parties should not be penalized for...