Harvey v. Stone County School Dist.

862 So. 2d 545, 2003 Miss. App. LEXIS 938, 2003 WL 22331982
CourtCourt of Appeals of Mississippi
DecidedOctober 14, 2003
Docket2002-CA-01777-COA
StatusPublished
Cited by13 cases

This text of 862 So. 2d 545 (Harvey v. Stone County School Dist.) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harvey v. Stone County School Dist., 862 So. 2d 545, 2003 Miss. App. LEXIS 938, 2003 WL 22331982 (Mich. Ct. App. 2003).

Opinion

862 So.2d 545 (2003)

Bonnie HARVEY, Appellant,
v.
STONE COUNTY SCHOOL DISTRICT, Appellee.

No. 2002-CA-01777-COA.

Court of Appeals of Mississippi.

October 14, 2003.
Rehearing Denied January 6, 2004.

*546 Bonnie Harvey, Appellant, pro se.

Walter William Dukes, Gulfport, Trace D. McRaney, attorneys for appellee.

Before McMILLIN, C.J., MYERS and GRIFFIS, JJ.

*547 GRIFFIS, J., for the Court.

¶ 1. Bonnie Harvey appeals the dismissal with prejudice of her complaint for personal injuries filed against the Stone County School District (the District). We find that the circuit judge abused his discretion, and therefore, we reverse and remand for further proceedings.

FACTS

¶ 2. Harvey was a cheerleader at Stone County High School. She was injured during cheerleading practice, while at school. On April 11, 2001, Alicia and Vic Harvey, as Harvey's legal guardians, filed a complaint against the District alleging negligence and requesting damages. The complaint was filed by counsel representing the Harveys. The following is a chronology of events that occurred in this case through the date of dismissal by the circuit court.

a. On May 4, 2001, the District served Harvey's counsel its answer and affirmative defenses and discovery requests, including interrogatories and requests for production of documents.

b. On June 14, 2001, the District sent Harvey's counsel a good faith letter, in accordance with the rules, requesting a response to the discovery requests.

c. On August 17, 2001, Harvey's counsel filed a motion to withdraw.

d. On February 27, 2002, the circuit court entered an order allowing Harvey's counsel to withdraw and granted Harvey thirty days to engage new counsel.

e. On April 2, 2002, Harvey filed a motion for enlargement of time to appoint substitute counsel.

f. On May 3, 2002, the circuit court entered an order allowing Harvey until June 15, 2002, to have substitute counsel enter an appearance.

g. On June 18, 2002, Harvey, now over the age of eighteen, filed an entry of appearance where she stated her intention to proceed pro se.

h. On June 19, 2002, the District sent Harvey another good faith letter asking that she provide her discovery responses on or before June 29, 2002.

i. On July 3, 2002, the District filed a motion to compel and noticed a hearing on the motion for July 15, 2002.

j. Harvey failed to appear at the July 15th hearing. The Honorable Jerry Terry, circuit judge, entered an order compelling Harvey to provide her discovery responses within fourteen days, "failing which her claim faces dismissal."

k. On July 31, 2002, the District received Harvey's discovery responses. The material received included answers to interrogatories and copies of documents such as Harvey's medical bills. The envelope was postmarked July 30, 2002.

l. On August 7, 2002, the District filed a motion to dismiss pursuant to Mississippi Rules of Civil Procedure 37 and 41. The District noticed the hearing without a date certain. Accordingly, there is no record that an actual hearing on the motion was ever noticed or held.

m. An order granting the motion to dismiss, entered by the Honorable Stephen Simpson, circuit judge, was filed on September 24, 2002.

n. A final judgment dismissing the claim with prejudice was entered on September 10, 2003, and filed on September 24, 2003.

*548 ¶ 3. The District asked the court to dismiss Harvey's claim under Rules 37 and 41 of the Mississippi Rules of Civil Procedure. The District's motion asserted that dismissal was warranted because (a) Harvey's discovery response was postmarked one day after the deadline imposed in the court's July 15th order; (b) Harvey did not provide a written response to the request for production of documents; (c) Harvey failed to comply with Mississippi Rule of Civil Procedure 33 because her interrogatories were not sworn; and (d) Harvey violated Uniform Circuit and County Court Rule 4.04(B) because she failed to set forth the text of the interrogatory before her answers. The District argued that dismissal of this action is appropriate based on the plaintiff's refusal to comply with the court's order.

ANALYSIS

¶ 4. Our review of the circuit court's decision to dismiss Harvey's claim with prejudice, due to a discovery violation, begins with the pertinent language of Rules 37 and 41 of the Mississippi Rule of Civil Procedure. Rule 37(b)(2) provides:

[i]f a party ... fails to obey an order to provide or permit discovery ..., 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:
(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(B) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;
(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;
(D) in lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders.
In lieu of any of the foregoing orders or in addition, thereto, the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

¶ 5. Rule 41(b) of the Mississippi Rules of Civil Procedure provides "[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him."

¶ 6. Accordingly, Rule 37(b)(2) gives the circuit judge several options to compel a party to comply with discovery. Rules 37(b)(2)(C) and 41(b) provide that a court may enter an order dismissing the action when a party refuses to comply with an order compelling discovery. We note that these rules give trial judges much discretion, but such is not unbridled.

¶ 7. To determine whether the trial judge abused his discretion, our review must consider Pierce v. Heritage Properties, Inc., 688 So.2d 1385 (Miss.1997). In Pierce, the supreme court upheld a trial court's dismissal of a case with prejudice due to the plaintiff's failure to comply with discovery. The court held:

The decision to impose sanctions for discovery abuse is vested in the trial court's *549 discretion. White v. White, 509 So.2d 205, 207 (Miss.1987). The provisions for imposing sanctions are designed to give the court great latitude. Id. at 207. 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. Palmer v. Biloxi Regional Medical Center, 564 So.2d 1346, 1367 (Miss.1990). Nevertheless, the trial court should dismiss a cause of action for failure to comply with discovery only under the most extreme circumstances. Hapgood v.

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Bluebook (online)
862 So. 2d 545, 2003 Miss. App. LEXIS 938, 2003 WL 22331982, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harvey-v-stone-county-school-dist-missctapp-2003.