Robert A. Johnson v. Myra Linda Henderson
233 So. 3d 265
| Miss. | 2017Background
- Robert A. Johnson (California resident) filed a will contest after his stepmother, Myra Henderson, probated a will that disinherited him.
- Henderson served a deposition notice; Johnson moved to quash/for a protective order arguing undue burden of travel and proposing alternatives; the chancery court denied the motion and suggested 30+ days' notice for a deposition in Mississippi.
- Henderson re-noticed the deposition for December 11, 2015; Johnson’s counsel informed defense counsel three days before the date that Johnson would not attend; Johnson then failed to appear.
- Henderson moved to dismiss with prejudice under M.R.C.P. 37 for failure to attend a properly noticed deposition; the chancellor granted dismissal as a sanction.
- The Mississippi Supreme Court reviewed for abuse of discretion and affirmed, finding Johnson’s absence willful, attributable to him (not counsel), and that lesser sanctions were considered but inadequate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal is authorized for failure to attend a properly noticed deposition (Rule 37(d)) | Johnson conceded Rule 37 authority but argued nonwillful absence and that dismissal was too harsh | Henderson argued Rule 37(d) authorizes dismissal for failure to appear and should apply here | Court: Rule 37(d) authorizes dismissal; sanction permissible and applied here |
| Whether Johnson’s failure to appear was willful or excused | Johnson contended business obligations prevented attendance and claimed willingness to attend later | Henderson argued Johnson intentionally skipped deposition and never sought court relief or cooperation | Court: Failure was willful and attributable to Johnson, not counsel; excuse raised only after threat of dismissal |
| Whether the chancellor abused discretion by not considering lesser sanctions before dismissing | Johnson argued the court did not actually consider practical lesser sanctions and dismissal is an extreme remedy | Henderson pointed to counsel’s offer of monetary sanctions and the court’s on-record rejection as evidence lesser sanctions were considered | Court: Chancellor considered and rejected financial/lesser sanctions as inadequate; dismissal within discretion |
| Whether denial of Johnson’s protective order justified nonattendance | Johnson argued no court order compelled appearance and denial of his protective motion did not require attendance on the specific December date | Henderson argued denial effectively required Johnson to appear in Mississippi and that Johnson could have sought relief as to the December date but did not | Court: Denial of earlier motion did not excuse failure to attend; Johnson could have sought protection for the December date but did not, so dismissal appropriate |
Key Cases Cited
- Salts v. Gulf Nat’l Life Ins. Co., 872 So.2d 667 (affirming dismissal under Rule 37 for willful failure to attend depositions)
- Pierce v. Heritage Props., Inc., 688 So.2d 1385 (discussing willfulness and factors for dismissal as discovery sanction)
- Beck v. Sapet, 937 So.2d 945 (listing factors courts weigh before dismissing for discovery violations)
- Gilbert v. Wal-Mart Stores, Inc., 749 So.2d 361 (affirming dismissal where absence was willful)
- Kinzie v. Belk Dep’t Stores, L.P., 164 So.3d 974 (reversing dismissal where court failed to consider lesser sanctions)
- Cox v. Cox, 976 So.2d 869 (clarifying when record shows lesser sanctions were considered)