You Don’t Play — You Pay

July 17, 2017 § 3 Comments

Robert A. Johnson filed a contest to his father’s will, which left everything to Robert’s stepmother, Myra Henderson, and bequeathed nothing to Robert and his brother.

Henderson gave notice of a deposition to be taken in her attorney’s office in Mississippi. Johnson, who lived in California, filed a motion to quash and for a protective order on the basis that it was unduly burdensome on short notice, and that Henderson should either have to pay his travel expenses, or should do the deposition by remote video, or should travel to California to depose him. The chancellor ruled that Johnson would have to travel to Mississippi to give the deposition, but did allow him thirty days’ notice.

Based on the court’s ruling, Henderson re-noticed the deposition for thirty-two days later at her attorney’s Mississippi office. Three days before the scheduled time, however, Johnson’s lawyer called Henderson’s lawyer and told him that Johnson would not appear. Johnson did not appear at the appointed time and date.

Henderson filed for sanctions. At the hearing on the motion, Johnson’s attorney argued that Johnson had been to busy to attend. The chancellor inquired why Johnson had not filed anything to stay the date to a less busy period, and the attorney replied that he wanted to, but was unable to coordinate documentation with Johnson’s California lawyer. Henderson argued for financial sanctions. The chancellor, however, had other ideas: “I can not allow somebody to file an action in a will contest or otherwise in my Court and not make themselves available to the Court for necessary discovery. I can’t allow it. It’s frankly, contemptuous. And also, if it’s not done, all it does is slow down the wheels of justice.” He dismissed Johnson’s complaint with prejudice, and Johnson appealed.

The case was taken by the MSSC, which affirmed in In the Matter of the Estate of Johnson: Johnson v. Henderson, decided June 1, 2017. Justice Maxwell wrote for the 5-4 majority:

¶11. The rule governing a party’s failure to attend a properly noticed deposition is very clear. “If a party . . . fails . . . to appear before the officer who is to take his deposition, after being served with a proper notice, . . . the court in which the action is pending on motion . . . may take any action authorized under subsections (A), (B), and (C) of subsection (b)(2) of this rule.” M.R.C.P. 37(d) (emphasis added). One of the actions authorized by subsection (b)(2) is the issuing of an order “dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party[.]” M.R.C.P. 37(b)(2)(C). So under Rule 37, dismissal is an authorized sanction.

¶12. Johnson does not claim he lacked proper notice of the December 11, 2015 deposition. So under Rule 37(d)’s plain language, his failure to appear triggered the chancellor’s discretionary authority to dismiss his will contest with prejudice. Johnson recognizes this authority but tries to temper his nonappearance by arguing it was not willful. As his lawyer later pitched it to the chancellor, he was just too busy to be there.

¶13. Johnson insists this Court’s precedent cuts against his being hit with the ultimate sanction of dismissal. See, e.g., Pierce v. Heritage Props., Inc., 688 So. 2d 1385, 1388 (Miss. 1997) (finding the plaintiff’s willful discovery violation supported the trial judge’s sanction of dismissal). But the record shows his nonattendance was willful. Opting against seeking court permission or intervention, he gambled on forgiveness, and intentionally skipped out on his properly noticed deposition. Johnson made no prior mention of work obligations or serious conflicting business duties. It was only afterward, when looking down the barrel of dismissal, that his attorney suggested to the chancellor that Johnson’s California business would have been disrupted had he attended the deposition. Johnson had not mentioned this excuse to the court before ditching his deposition. Nor did he seek court intervention or direct his counsel to work with Henderson’s lawyer to find a more suitable date to be deposed.

¶14. In fact, Johnson apparently never intended to inform Henderson he was not coming. Our review shows it was Henderson’s lawyer who contacted Johnson’s attorney three days before the scheduled deposition to verify Johnson would be there. And only then, according to Henderson’s attorney, did Johnson’s lawyer tell him his client was not coming.

¶15. In addition to willfulness, we also consider “whether the failure to comply is attributable to the party itself, or their attorney,” and “whether the failure to comply was a consequence of simple confusion or a misunderstanding of the trial court’s order.” Beck v. Sapet, 937 So. 2d 945, 949 (Miss. 2006) (citing Pierce, 688 So. 2d at 1389). Here, the record supports the chancellor’s finding that it was in fact Johnson—not his attorney—who decided to skip the deposition. And his absence was not based on confusion over the judge’s November 9 ruling that he come to Mississippi to be deposed. It was willful.

¶16. Based on this willful, unexcused failure to attend the December 11 deposition, we find the chancellor was within his discretion under Rule 37(d) to sanction Johnson by dismissing his action. See Salts, 872 So. 2d at 674 (affirming the trial judge’s dismissal under Rule 37(b)(2)(C) for failure to attend a deposition as within the judge’s discretion); Gilbert v. Wal-Mart Stores, Inc., 749 So. 2d 361, 364 (Miss. Ct. App. 1999) (affirming trial judge’s sanction of dismissal because “the record reveals that it was more wilfulness or bad faith on the part of Gilbert that prevented his appearance” at the scheduled deposition).

¶17. The dissent and Johnson try to distinguish Salts and Gilbert by arguing, in those cases, the plaintiffs had been ordered to attend the depositions. And in his case, Johnson was never ordered by the chancellor to show up on December 11. But the fact the parties in Salts and Gilbert were under court order—and Johnson was not—is immaterial to our analysis. It simply makes their failures to appear not only violations of Rule 37(d) but also Rule 37(b), which specifically governs the failure to comply with discovery-related court orders. See Salts, 872 So. 2d at 674; Gilbert, 749 So. 2d at 364. There is nothing in Rule 37(d)—the subsection that specifically governs a party’s failure to attend his own properly noticed deposition—that limits the trial court’s discretionary authority to dismiss to only those case where a party has been expressly ordered by the court to attend a deposition. Compare M.R.C.P. 37(d) (governing “Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection”) with M.R.C.P. 37(b) (governing “Failure to Comply With Order”). Again, Rule 37(d) makes clear a party cannot ignore a properly served notice of deposition with impunity. Instead, he must appear or, if appearance is not feasible, seek the other side’s cooperation and, if necessary, the court’s intervention. In this case, Johnson did nothing. He simply rolled the dice and decided not to come to Mississippi to be deposed, despite the judge’s ruling.

¶18. The dissent also suggests the chancellor did not consider lesser sanctions—another factor we weigh when reviewing the sanction of dismissal. See Beck, 937 So. 2d at 949 (citing Pierce, 688 So. 2d at 1389). But we find he did. At the motion-for-sanctions hearing, Johnson’s counsel specifically argued that, “if sanctions are imposed, they should be financial sanctions.” This, he insisted, would “allow [Johnson] to compensate the opposing party but still have his day in court here.” The chancellor considered but rejected this suggestion.

¶19. It is obvious the chancellor felt lesser sanctions would not suffice. In meting out the appropriate sanction, he found he could not allow practitioners to file lawsuits then thwart necessary discovery through their nonavailability. He deemed such a course as “frankly, contemptuous.” In his view, this sort of willful behavior “slow[s] down the wheels of justice.” From this exchange, it is evident the judge acknowledged and considered Johnson’s argument but found dismissal the only viable sanction for Johnson’s willful conduct. See Pierce, 688 So. 2d at 1390-91 (affirming the sanction of dismissal, in part, because the trial court had considered less-drastic sanctions but found none would have the same deterrent value). While this court may have crafted a different sanction, we cannot say the chancellor lacked discretion to dismiss with prejudice under Rule 37(d).

¶20. As a final matter, Johnson argues the chancellor wrongly denied his motion for a protective order. This was the motion he filed in response to the first notice of the October 22, 2015 deposition. The record contains no transcript from the November 9, 2015 hearing on Johnson’s motion. But during the January 5, 2016 sanctions hearing, Johnson’s attorney recapped the judge’s prior ruling, acknowledging “[p]reviously . . . the court ruled that it was better to have in person depositions and we agreed.” (Emphasis added.) But even if Johnson disagreed with the judge’s ruling that he had to come to Mississippi to be deposed, he could not simply ignore the properly noticed December 11 deposition. Johnson could have filed a second motion for protective order based on the timing of the deposition, but he did not. [Fn omitted] Instead, he deliberately chose not to attend. Based on this unexcused absence, we find the chancellor was within his discretionary authority under Rule 37(d) to sanction Johnson with dismissal.

There is a rigorous dissent, which you might want to read for authority in case you find yourself on the uphill side in a similar case.

What you need to take notice of here is that R37(d) has got some serious teeth that can inflict fatal damage on your case. You can’t always control a recalcitrant client such as Johnson apparently was in this case, but you may be able to file a timely motion for a protective order that might insulate him from the most extreme sanction.

In any event, this case is anecdotal evidence that judges are becoming less patient with people who file lawsuits and then gum up the works. If you come to play, you need to play. If you don’t, the ultimate price is what you may have to pay.

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