Salts v. Gulf Nat. Life Ins. Co.

• Citation: 872 So.2d 667
• Decision Date: 06 May 2004
• Docket Number: No. 2002-CA-01697-SCT., No. 2001-CA-00021-SCT
• Parties: Michael SALTS, Alice Marie Salts and Salts Funeral Home, Inc. v. GULF NATIONAL LIFE INSURANCE COMPANY, Phillip Duncan, Stan Howell, William McDonald and Prentiss Funeral Directors, Inc. d/b/a Booneville Funeral Home.
• Court: United States State Supreme Court of Mississippi

872 So.2d 667

Michael SALTS, Alice Marie Salts and Salts Funeral Home, Inc. v. GULF NATIONAL LIFE INSURANCE COMPANY, Phillip Duncan, Stan Howell, William McDonald and Prentiss Funeral Directors, Inc. d/b/a Booneville Funeral Home.

Nos. 2001-CA-00021-SCT, 2002-CA-01697-SCT.

Supreme Court of Mississippi.

May 6, 2004.

K. David Sawyer, Scott Watson Weatherly, Jr., Gulfport, attorneys for appellants.

Michael A. Heilman, Christopher Thomas Graham, Marc A. Biggers, Greenwood, attorneys for appellees.

EN BANC.

CARLSON, Justice, for the Court.

¶ 1. Plaintiffs Michael and Alice Marie Salts and Salts Funeral Home, Inc. appeal from the judgment of the trial court which dismissed, with prejudice, their lawsuit against Gulf National Life Insurance Co., Phillip Duncan, Stan Howell, William McDonald and Prentiss Funeral Directors, Inc. d/b/a Booneville Funeral Home, pursuant to Miss. R. Civ. P. 37, when they failed to submit to their depositions as previously ordered by the trial court. Because we find no abuse of discretion in the entry of this order of dismissal, we affirm the judgment of the Circuit Court of the First Judicial District of Hinds County.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. The following statement of facts is taken verbatim from one of our prior opinions in this litigation, Salts v. Gulf National Life Ins. Co. 849 So.2d 848 (Miss.2002):

On January 30, 1990, Michael Salts, Alice Marie Salts, and Salts Funeral Home, Inc. ("the Salts") and Gulf National Life Insurance Company ("Gulf National") entered into an exclusive written agreement whereby the Salts agreed to sell Gulf National life and burial insurance policies in the Tupelo trade area, particularly in Prentiss County, Mississippi. On June 28, 1996, the Salts filed a complaint in the Hinds County Circuit Court, First Judicial District, alleging that Gulf National, d/b/a Selected Funeral Insurance Company, had denied the exclusivity of their agreement and entered into conflicting contracts with others. Ultimately seven defendants were named and, after two and a half years of discovery disputes and an interlocutory appeal to this Court on the question of venue¹, the Hinds County Circuit Court granted Gulf National's motion to dismiss on the grounds that the Salts had willfully failed to comply with the court's order to submit to depositions on February 2-3, 2000. Aggrieved by that order, the Salts appealed, asserting as their sole assignment of error that it was an abuse of discretion for the trial court to grant Gulf National's motion to dismiss....

On July 17, 2000, after four years of procedural turmoil punctuated by innumerable examples of failure to communicate, with each side blaming the other, this case came before the Hinds County Circuit Court for hearing on Gulf National's motion to dismiss which alleged that the Salts repeatedly attempted to thwart discovery and failed to comply with court orders. Argument was heard from attorneys representing the Salts, as well as attorneys representing defendants Gulf National, Jeremiah O'Keefe, Booneville Funeral Home, Phillip Duncan and "a couple of more individuals named as defendants."

On December 4, 2000, the Hinds County Circuit Court entered an order of dismissal on the motion....

Gulf National filed its motion to dismiss on February 11, 2000. On February 28, 2000, defendants Prentiss Funeral Home Directors, Inc., Philip Duncan, William McDonald, and Stan Howell filed their joinder in Gulf National's motion to dismiss. Named defendants not participating in the joinder included Jerry O'Keefe, the CEO of Gulf National, and the Estate of James C. Maxey (the President of Gulf National, who died during the proceedings).

The appellate record shows no filings by defendants other than Gulf National between February 28, 2000, and December 4, 2000, when the motion to dismiss was granted. As is apparent, the order of dismissal mentioned no other defendants. Nothing in the record before the Court indicates a Rule 54(b) certification of the order of dismissal. And none of the parties raised this omission as an issue on appeal.

Id. at 849-50. Finding that the order of dismissal "neither explicitly dismissed all of the defendants in the action, nor was it certified as a final judgment under Miss. R. Civ. P. 54(b)," this Court dismissed the appeal because it was not properly before the Court. Id. at 849.

¶ 3. On September 12, 2002, Gulf National Life Insurance Company filed a Motion for Clarification and Entry of Final Order of Dismissal in the circuit court on the ground that the plaintiffs had failed to cooperate in the discovery of this case. Circuit Judge Bobby DeLaughter entered a final judgment on September 16, 2002, dismissing, with prejudice, all of the plaintiffs' claims against all of the defendants. After the circuit court denied their motion to reconsider, the plaintiffs timely filed their notice of appeal with this Court raising only one issue for consideration: Whether pursuant to Miss. R. Civ. P. 37, the Hinds County Circuit Court abused its discretion when it dismissed the plaintiffs' lawsuit for discovery violations.

DISCUSSION

¶ 4. "Trial courts have considerable discretion in discovery matters and decisions will not be overturned unless there is an abuse of discretion." Robert v. Colson, 729 So.2d 1243, 1245 (Miss.1999) (citing Dawkins v. Redd Pest Control Co., 607 So.2d 1232, 1235 (Miss.1992)). When this Court reviews a decision that is within the trial court's discretion, it must first determine if the court below applied the correct legal standard. Scoggins v. Ellzey Beverages, Inc., 743 So.2d 990, 996 (Miss. 1999). "If the trial court applied the right legal standard, then this Court will affirm a trial court's decision unless there is 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.'" Id. (citing Pierce v. Heritage Props., Inc., 688 So.2d 1385, 1388 (Miss.1997)) (quoting Cooper v. State Farm Fire & Cas. Co., 568 So.2d 687, 692 (Miss.1990)). Pursuant to Miss. R. Civ. P. 37(b)(2)(C) which states:

(b)(2) Sanctions by Court in Which Action Is Pending. If a party or an officer, director, or managing agent of a party or a person designated under Rules 30(b)(6) or 31(a) to testify in behalf of a party fails to obey an order to provide or permit discovery, including an order made under subsection (a) of this rule, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:

(C) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party....

(emphasis added), a trial judge may, in appropriate cases, impose the sanction of "dismissing the action or proceeding or any part thereof." However, this Court has recognized that "in deciding to impose a drastic sanction as dismissal, the defendant's own dilatory conduct may become a relevant and mitigating factor if deemed outside the realm of reasonableness and acceptability." Palmer v. Biloxi Reg'l Med. Ctr., Inc., 564 So.2d 1346, 1370 (Miss. 1990).

¶ 5. The plaintiffs argue that the trial court abused its discretion in dismissing their action with prejudice against Gulf National and the other defendants. The plaintiffs contend that counsel for Gulf National unilaterally scheduled all hearings and failed to respond to discovery propounded to them in 1997. The plaintiffs state that they have repeatedly sought the assistance of the Hinds County Circuit Court but have been unable to have their outstanding motion to compel discovery set for a hearing.

¶ 6. As a result of an order signed by Circuit Judge W. Swan Yerger, and agreed to by counsel for the parties, the plaintiffs and other witnesses were to submit to depositions on specified dates in February, 2000; however, the plaintiffs failed to appear and be deposed. The plaintiffs argue that they did not wilfully fail to comply with the agreed order, but that they merely misunderstood the order. The plaintiffs and their counsel argue that the parties intended the order to state that if Gulf National failed to turn over to the plaintiffs their outstanding discovery responses, the plaintiffs would not be obligated to attend the scheduled depositions. The plaintiffs' counsel contend that it was the fault of Gulf National's attorneys that they did not attend the depositions, and that one of their attorneys mistakenly signed the agreed order without conferring with co-counsel; therefore, the true intent of all parties was not stated in the order. Because Gulf National did not answer the propounded interrogatories, the plaintiffs' attorneys did not allow them to submit to the depositions.

¶ 7. The plaintiffs argue that the extreme sanction of dismissal was improper because the order of the trial court did not indicate that lesser sanctions were ever considered. The plaintiffs also contend Gulf National was not prejudiced in any way by the plaintiffs continuing the scheduled depositions.

¶ 8. Gulf National argues the trial court was correct in dismissing the plaintiffs' claim with prejudice, asserting inter alia:

In its order of December 1, 2000, the Hinds County Circuit Court dismissed the Salts' claim with prejudice and stated that it was granting the motion, "for the reasons and arguments set forth by [Gulf National]." The reasons adopted by the lower court include the procedural history of the lawsuit demonstrating the six (6) previous attempts that Gulf National had made to take the depositions of the Salts and the fact that the Salts had violated a court order. Under these circumstances, the court clearly had authority to dismiss the Salts' case pursuant to Rule 37.

Gulf National argues the plaintiffs' counsel was fully aware of the...