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Grant v. Kmart Corporation12/18/2001
that " here there is no indication in the record that the lower court considered any alternative sanctions to expedite the proceedings, appellate courts are less likely to uphold a Rule 41(b) dismissal." American Tel. & Tel. Co. v. Days Inn, 720 So. 2d 178, 181 ( )(Miss. 1998). There is nothing in this record to warrant the conclusion that the trial court considered a less drastic sanction, or if it did, why it concluded that the less drastic sanction would not serve the deterrent value of Rule 37.
. The majority agrees that nothing in the record specifically shows that the trial court considered any less severe sanctions but concludes that the trial court must have done so because a less severe sanction was proposed by Grant. It is true that Grant proposed a less severe sanction, but it is also true that KMart proposed a less severe sanction. In the prayer of KMart's motion to dismiss, KMart made the following alternative request for relief:
In the alternative, Defendant requests that the Court continue the trial of this case so Defendant may have an opportunity to fully discovery investigate and evaluate the Plaintiff's subsequent fall and medical treatment including redeposing the Plaintiff and her treating physicians at the Plaintiff's expense.
Grant made the exact same proposal. Since both parties were willing to accept a less severe sanction, the reason for the trial court's refusal to order the less severe sanction becomes all the more important. It would have been of great help to us, as the reviewing court, to be made aware by the trial court as to why a lesser sanction was not sufficient. Since the trial court offered none, I am compelled to conclude that it did not consider a less severe sanction. I am unwilling to accept the majority's view that the trial court implicitly considered and rejected a less severe sanction.
. As stated, "dismissal is proper only in situations where the deterrent value of Rule 37 cannot be substantially achieved by the use of less drastic sanctions" even though dismissal is authorized. Wood, 757 So. 2d at 193 ( ). In other words, a dismissal may not be proper even if the offending party's actions have created a situation where dismissal could occur. Id. "Lesser sanctions include 'fines, costs, or damages against plaintiff or his counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice, and explicit warnings.'" American Tel. & Tel. Co., 720 So. 2d at 181-82. I see no reason why the sanction offered by KMart in the alternative and accepted by Grant would not have been sufficient. Clearly, the only possible prejudice that KMart has suffered is its lack of opportunity to "fully discover investigate and evaluate the Plaintiff's subsequent fall and medical treatment." This prejudice can be cured by allowing KMart to redepose Grant's physicians at Grant's expense.
. For the reasons presented, I respectfully dissent. I would reverse and remand this case to the trial court for imposition of a less severe sanction and trial on the merits of Grant's complaint.
KING, P.J., THOMAS AND CHANDLER, JJ., JOIN THIS SEPARATE OPINION.
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