author: DECUIR, Judge.

text:
    Stephanie WEBB v. PARAGON CASINO.
    No. 03-1700.
    Court of Appeal of Louisiana, Third Circuit.
    May 12, 2004.

      George A. Flournoy, Flournoy & Dog-gett, Alexandria, LA, for Plaintiff/Appellant, Stephanie Webb.
    Joseph B. Guilbeau, Juge, Napolitano, Guilbeau, Ruli & Frieman, Metairie, LA, for Defendant/Appellee, The Tunica-Biloxi Indian Tribe of Louisiana d/b/a Paragon Casino Resort.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and BILLY HOWARD EZELL, Judges.
   DECUIR, Judge.

Stephanie Webb filed this workers’ compensation claim against her employer, the Tunica-Biloxi Indian Tribe of Louisiana, d/b/a Paragon Casino Resort, after allegedly sustaining a work-related accident on February 28, 2002. The Tribe objected to the jurisdiction of the Office of Workers’ Compensation. The parties submitted the matter on briefs, and the workers’ compensation judge ruled in favor of the Tribe, finding no subject matter jurisdiction. Webb’s claim was dismissed, and she appeals. For the following reasons, we affirm.

The Tribe’s authority to conduct gaming activities on tribal lands located within the State of Louisiana stems from the Federal Indian Gaming Regulatory Act of 1988, 25 U.S.C. § 2701, et seq. Pursuant to the Act, the Tribe then entered into a compact or contract with the State of Louisiana whereby the regulations governing the gaming and other activities at the Paragon Casino Resort were set forth. The contract was approved by the Secretary for the United States Department of the Interior. In keeping with longstanding federal jurisprudence and statutory law, the contract specifically recognized the territorial rights and independent sovereignty of both the Tribe and the State. The contract did not address the limited issue of jurisdiction in workers’ compensation matters which may arise as a result of the operation of the casino and resort. ,

On the narrow question of whether the Office of Workers’ Compensation has jurisdiction over the Tribe in a case involving employment activities- on tribal lands, the workers’ compensation judge explained that such an assertion of jurisdiction “would constitute an unlawful encroachment on tribal sovereignty and self-government.” The court reasoned ¡that subject matter jurisdiction would be present only via federal law or an explicit waiver of sovereign immunity -by the Tribe, citing recent third circuit jurisprudence:

In Bonnette, et al. v. Tunica-Biloxi Indians of Louisiana d/b/a Paragon Casino Resort, et al., Nos. 0[2]—919, 02-920, 02-921, 2003 WL 21229282 (La.App. 3 Cir. 5/[2]8/03)[, 873 So.2d 1] the court reaffirmed the position of the United States Supreme Court in Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 754, 118 S.Ct. 1700, 1702, 140 L.Ed. 981 (1988) that “[a]s a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.”

The court then specifically found that Congress had not “authorized a suit against The Tribe in the workers’ compensation courts of this state nor ha[d] the tribe consented to be sued in such courts.” The court also discussed a recently enacted Tunica-Biloxi constitutional ordinance which provides that Louisiana workers’ compensation law will apply to claims arising within the jurisdiction of the Tunica-Biloxi Tribal Court and that the administration of the Louisiana Workers’ Compensation Act for such claims shall be by the tribal courts. See Constitutional Ordinance 10-2002 (adopted 11/5/02).

During the pendency of this appeal, a panel of this court handed down a decision involving the same issue as that raised herein. In Ortego v. Tunica Biloxi Indians of LA d/b/a Paragon Casino, 03-1001 (La.App. 3 Cir. 2/4/04), 865 So.2d 985, this court affirmed a workers’ compensation judgment maintaining an exception- of lack of subject matter jurisdiction. The court, per Judge Amy, reviewed the federal jurisprudential history of sovereign immunity and recent Louisiana cases involving the Tunica-Biloxi Tribe. The plaintiffs arguments were then specifically addressed. We agree with the decision rendered in Ortego, finding it to be a well reasoned discourse on jurisdictional issues involving a sovereign, self-governing and wholly independent nation.

Because the arguments raised in this appeal are identical to those raised in Ortego, (as the plaintiffs’ counsel, the defendant and its counsel, and the workers’ | ¡¡compensation judge are all the same in the two cases), we quote from that portion of the Ortego opinion which disposes of the plaintiffs arguments:

In the present appeal, Ms. Ortego has cited several provisions of the compact between the State of Louisiana and the Tunica-Biloxi Tribe in support of her contention that the workers’ compensation judge erred as a matter of law in granting the Tribe’s exception of lack of subject matter jurisdiction because the State of Louisiana retained jurisdiction over workers’ compensation proceedings involving tribal employees.
Our examination of the compact reveals that the Tribe did not waive its sovereign immunity with respect to its employees’ workers’ compensation claims. Contrary to Ms. Ortego’s first argument on appeal, the compact’s silence on this issue does not mean that Louisiana law applies. As the Supreme Court noted in Santa Clara Pueblo, 436 U.S. 49, 98 S.Ct. 1670, 56 L,Ed.2d 106 [1978], tribal sovereign immunity cannot be inferred — instead, it must be expressly waived. The compact’s silence with respect to tribal employees’ workers’ compensation claims does not constitute an express waiver. The Tribe retains jurisdiction in this area through operation of the doctrine of tribal sovereign immunity.
Ms. Ortego’s second argument is that §§ 3(B) and (C) of the compact evince the intent that the State retain jurisdiction over workers’ compensation claims. Our reading of these sections is at odds with Ms. Ortego’s proposal. Section 3(C) merely indicates that the State retains jurisdiction in those matters in which it previously exercised jurisdiction. Section 3(C) also states that the Tribe retains its jurisdiction, which, applying the principles outlined in Montana [v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981)] and Strate [v. A-1 Contractors, 520 U.S. 438, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997)], above, includes jurisdiction over workers’ compensation claims.
In her third argument, Ms. Ortego points to those sections of the compact requiring the Tribe to carry workers’ compensation insurance that, by its terms, precludes the Tribe from asserting the defense of sovereign immunity in defense of liability. Ms. Ortego argues in an extrapolation of these sections, that the Tribe does not have sovereign immunity over workers’ compensation claims. Based upon our reading of the compact, these provisions do not imply that the defense of sovereign immunity is not available to the Tribe in case of litigation; instead, it indicates that the Tribe may not assert sovereign [immunity] in an attempt to avoid paying on the policy. Moreover, the newly approved tribal ordinance at issue herein mandates that tribal courts apply Louisiana workers’ compensation law in deciding workers’ compensation disputes; as such, the Tribe, just as any other employer, would rely upon its workers’ compensation insurance in payment of claims in appropriate cases.
| ¿Ms. Ortego further contends that § 2(H) of the compact, reproduced [below], clearly indicates that the State did not transfer its workers’ compensation jurisdiction to the Tribe. We note that this section pertains to enforcement of the provisions of the compact itself— i.e., in the event that the State sued the Tribe to enforce the compact, the Tribe could not assert the defense of sovereign immunity, and vice versa. Nothing in § 2(H) indicates that the State or the Tribe waived their respective immunity as to matters other than enforcement of the compact terms. .
In her fifth argument on appeal, Ms. Ortego contends that the Tribe was givT en jurisdiction over tort claims in § 10(A)(6) of the compact and that a similar grant of workers’ compensation jurisdiction to the Tribe would have been express, as well. Jurisdiction over workers’ compensation- was not the State’s to give away. According to the above-cited Supreme Court decisions, the Tribe, not the State; has civil jurisdiction over disputes arising from its consensual relationships with others, even non-members, by virtue of its sovereign status. The Court has also stated that the Tribe would be subject to suit in federal and state courts via an express waiver of the immunity that stems from its sovereign status. No such waiver was- given- in the instant matter on appeal; as such, the Tribe retained its workers’ compensation jurisdiction.
Finally, Ms. Ortego contends that the ordinance declaring the Tribe’s intention to exercise sole jurisdiction over workers’ compensation claims could not have amended the compact between the Tribe and the State because it was neither signed bjr the proper dignitaries nor approved by the Secretary of the Interi- or.[] We agree with Ms. Ortego’s assertion that the ordinance at issue did not change the terms of the compact. However, in this situation,' it was not necessary for the ordinance to do so. The Tribe already has jurisdiction over workers’ compensation claims owing to its status as a sovereign recognized by the United States, not as a result of this compact. The | ..¡ordinance merely reaffirms the Tribe’s jurisdiction over such matters and mandates that the tribal courts will apply Louisiana workers’ compensation law in deciding disputes in this area. Ms. Ortego will therefore receive the benefit of Louisiana workers’ compensation law whether her case proceeds in Louisiana courts or in the tribal courts of the Tunica-Biloxi Nation.
Based upon the above considerations, we do not find that the workers’ compensation judge erred as a matter of law in granting the Tribe’s exception of lack of subject matter jurisdiction. However, because the Tribe did not assert only one principle in support of its claim that the workers’ compensation court lacked subject matter jurisdiction over Ms. Or-tego’s claim, it is necessary to emphasize the precise reasoning employed in reaching this conclusion, for the sake of clarity.
The Tribe asserted in its exception of lack of subject matter jurisdiction, and it now asserts on appeal, that Louisiana does not have jurisdiction over Ms. Orte-go’s workers’ compensation claim for two reasons: first, due to the doctrine of exhaustion of tribal remedies, and second, due to tribal sovereign immunity.
We note that Ms. Ortego’s claim is grounded in Louisiana workers’ compensation law and not in tribal law. We further note that Ms. Ortego initially filed suit with the Louisiana Office of Workers’ Compensation, not in a Tuni-ca-Biloxi tribal court. As such, we find that the circumstances of Ms. Ortego’s case do not lend themselves to an unbending application of the doctrine of exhaustion of tribal remedies as propounded by the Supreme Court in National Farmers Union [Insurance Cos. v. Crow Tribe of Indians, 471 U.S. 845, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985)]and Iowa Mutual [Insurance Co. v. LaPlante, 480 U.S. 9, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987)], where claims were pending in tribal court before suit was filed in federal court. Instead, the reasoning of the Second Circuit in Garcia [v. Akwesasne Housing Authority, 268 F.3d 76 (2d Cir.2001)], reproduced above, is appropriate in the matter before us on appeal. We determine that this case should not have been dismissed as a matter of comity, but rather due to the asserted defense of tribal sovereign immunity.
In Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 145, 102 S.Ct. 894, 905, 71 L.Ed.2d 21 (1982), Justice Marshall, writing for the Court, observed that “[a] nonmember who enters the jurisdiction of the tribe remains subject to the risk that the tribe will later exercise its sovereign power.” In the instant matter on appeal, Ms. Ortego entered the jurisdiction of the Tribe, and the Tribe was free to exert its sovereign immunity with respect to claims sustained by Ms. Ortego, a non-member, while on tribal land.

865 So.2d at 996-98.

LWe agree with the reasoning of Ortego and find no legal error in the judgment dismissing Webb’s workers’ compensation claim against the Tribe. Following Ortego, this court has reached the same result in Bordelon v. Tunica Biloxi Indian Tribe of LA, 03-1223 (La.App. 3 Cir. 3/3/04), 867 So.2d 172; Stelly v. Paragon Casino & Resort, 03-1222 (La.App. 3 Cir. 3/3/04), 867 So.2d 173; and Whittington v. Paragon Casino Resort, 03-1286 (La.App. 3 Cir. 3/3/04), 867 So.2d 174.

The exception of lack of subject matter jurisdiction was properly maintained, and we therefore affirm. Costs of this appeal are assessed to Stephanie Webb.

AFFIRMED.

      . Section 2(H) of the compact states as follows:
      The jurisdiction and waiver of sovereign immunity provided by this Tribal-State Compact shall be strictly limited to matters and issues arising directly from this Tribal-State Compact.

      . The text of the Tribal Ordinance, entitled “An Ordinance to Adopt Title 23, Chapter 10 of the Louisiana Revised Statutes Concerning Workers' Compensation,” is as follows:
      All of Title 23, Chapter 10 of the Louisiana Revised Statutes, shall be adopted as the law applicable to any workers' compensation claims that arise in the jurisdiction of the Tunica-Bil'oxi Tribal Court. All of Part IV, "Administration of Claims”, including, but not limited to Subpart A, "Office of Workers’ Compensation Administration" and Subpart B, "Claim Resolution” and all of their subsections, shall be amended so that any reference to administration-by a Hearing Officer and/or the Workers'. Compensation Administration, shall be deleted. The Administration of Workers’ Compensation Act shall be by the Tunica-Biloxi Tribal Court.


source: Caselaw Access Project

author: Judge.

license: Public Domain

text:
    Randy HANKS, et al. v. Dr. A. Kent SEALE, et al.
    No. 04-9.
    Court of Appeal of Louisiana, Third Circuit.
    May 12, 2004.
    Thomas P. LeBlanc, Michael Keith Prudhomme, Lundy & Davis LLP, Lake Charles, LA, for Intervenor-Appellant, Louisiana Patients’ Compensation Fund.
    Michael H. Schwartzberg, Vamvoras & Schwartzberg, Rudie Ray Soileau, Jr., Attorney at Law, Lake Charles, LA, for Plaintiffs-Appellee, Randy Hanks, Debra Hanks.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   Judge.

The Louisiana Patients’ Compensation Fund appeals a jury verdict finding Drs. Kent Seale and Walter Ledet liable for medical malpractice and awarding Randy Hanks damages.

FACTS

Randy Hanks suffered from esophageal reflux. At the direction of his family doctor, Dr. Randall Wagman, Hanks saw Dr. Walter Ledet on January 15, 1997, who performed an esophagogastroduodenosco-py (EGD), a diagnostic procedure. Dr. Ledet diagnosed Hanks with a severe ease of esophagitis (inflammation of the esophagus). Dr. Wagman prescribed medicine to treat the esophagitis. Six weeks later, Hanks returned to Dr. Ledet, who performed another EGD and found that the inflammation had almost completely healed, but the esophageal reflux condition continued to be a problem.

In March 1998, Hanks returned to Dr. Wagman seeking to resolve the esophageal reflux condition. Dr. Wagman referred Hanks to Dr. Ledet. On April 7, 1998, Dr. Ledet scheduled Hanks for surgery to repair the esophageal reflux condition. On April 13, 1998, Dr. Ledet, with the assistance of his partner, Dr. Kent Seale, performed surgery on Hanks. The surgery involved the repair of a hiatal hernia and a Nissen fundoplication. The surgery was elective and usually requires a two to three day hospital stay.

Following the surgery, Hanks began developing complications, including necrosis of the stomach tissue and infection in the abdominal cavity, which required additional surgeries to remedy. He was released from the hospital on May 30, 1998. RHe has been hospitalized multiple times and has had multiple surgeries since his discharge for problems related to the initial surgery.

On April 8, 1999, Hanks submitted a request for a medical review panel to review his case in accordance with the Louisiana Medical Malpractice Act. Following their review of the ease, the doctors on the panel issued a fractured opinion. All three agreed that Drs. Ledet and Seale met the applicable standards of care with respect to the surgery and the post-operative care of Hanks. On the issue of preoperative care, each member of the panel issued a different opinion. Dr. Baron Newton found that the preoperative care failed to

meet the standard of care because the doctors failed to perform EGD and mano-metry tests. Dr. Dean Griffen found that while the failure to perform a manometry test before the surgery was a breach of the standard of care, the breach did not cause the complications suffered by Hanks. Dr. Meyer Kaplan found that the preoperative care met the standard of care.

On July 31, 2000, Hanks and his wife, Debra, individually and on behalf of their minor daughter, filed a malpractice suit against Drs. Ledet and Seale. The matter was tried before a jury April 7 through April 11, 2003. In response to special jury interrogatories, they found that Hanks proved the standard of care applicable to Drs. Ledet and Seale, that he proved a breach of the standard of care by both doctors, and that the breach caused the injuries suffered by Hanks. They awarded damages in the following amounts to Hanks:

$ 500,000.00 Past and Future Physical Pain and Suffering

$ 200,000.00 Past and Future Mental Anguish

$ 628,860.32 Past Medical Expenses

$ 2,435,040.00 Future Medical Expenses

$ 100,000.00 Loss of Enjoyment of Life

$ 56,686.00 Past Wages

$ 226,207.00 Future Wages/E arning Capacity

$ 4,146,793.32 TOTAL

| /They also awarded $75,000.00 to Mrs. Hanks for loss of consortium, but found that Hanks’ daughter did not prove a loss of consortium. The trial court issued a judgment in conformity with the verdict on May 2, 2003, finding Drs. Seale and Ledet liable for $100,000 each, and finding the State Treasurer’s Office and the Office of Risk Management liable for the remaining damages, subject to statutory limits. Drs. Ledet and Seale have satisfied their judgments and are not involved in this appeal. The PCF intervened and filed this suspen-sive appeal.

ASSIGNMENTS OF ERROR

The PCF asserts two assignments of error:

1. The jury committed manifest error in finding that plaintiffs established the applicable standards of care with regard to the preoperative, operative and post-operative treatment afforded Mr. Hanks in this case and, assuming the standards of care were proved, in finding that Drs. Seale and Ledet breached those standards.
2. The jury clearly erred in awarding plaintiff’s future medical expenses •without any medical evidence in the record as to the nature, extent and amount of such expenses.

DISCUSSION

The Louisiana Patient Compensation Fund, in its first assignment of error, argues the jury manifestly erred in both finding the appellee established the applicable standard of care required of the doctors in this matter and in finding Drs. Seale and Ledet breached those standards. The PCF argues, in effect, the jury erred in finding the doctors at fault. In their brief they specifically set forth that “... the jury’s verdict of liability in this case is unreasonable on this record, constitutes manifest error, and mandates that the Judgment in this matter be reversed.”

The issue of whether the PCF can contest liability when a health care provider has paid its policy limits subsequent to the rendering of a judgment based on a jury 14verdict was addressed by the Louisiana Supreme Court in Koslowski v. Sanchez, 576 So.2d 470 (La.1991). In Koslowski, the supreme court stated as follows:

The Louisiana Medical Malpractice Act contemplates only one party defendant, the health care provider. Williams v. Kushner, 449 So.2d 455 (La. 1984). “The fund is not a negligent party and does not have the status of an Article 2315 defendant.” Williams v. Kushner, 549 So.2d 294, 296 (La.1989) While the patient’s [sic] compensation fund is not a party defendant, it is a third party with an interest in the proceedings when damages exceed $100,000. Therefore, the fund has the right to intervene in the case of an excess judgment against the fund. Felix v. St. Paul Fire and Marine Ins. Co., 477 So.2d 676 (La.1985).
Liability under the Medical Malpractice Act is based on the initial $100,000 paid by the health care provider or its insurer, pursuant to judgment, settlement or arbitration. When the insurer has admitted liability up to the statutory maximum, the liability of the health care provider is established, and the only remaining issue is the damages, if any, owed by the patient’s [sic] compensation fund. The fund cannot contest liability when there is a binding settlement for $100,000 by the health care provider, either before or after trial.

In the matter before us, Drs. Ledet and Seale have paid the $100,000.00 for which they are liable, thereby admitting liability up to the statutory maximum. The PCF is, therefore, clearly precluded from contesting liability and we will not consider the first assignment of error.

In its second assignment of error, the PCF argues the jury erred in awarding the appellee future medical expenses without any medical evidence in the record as to the nature, extent and amount of such expenses. The appellant cites many cases regarding the burden for establishing future medical expenses. We note, however, that none of the cases are medical malpractice cases. The PCF will be required to pay for future medical costs as they come due. There is not a lump sum payment required by the judgment. There are procedures set forth in the LMMA which allow the PCF to contest specific treatment. The jury’s finding that Hanks is entitled to future medical damages is clearly supported by the record and will not be disturbed. As to |sthe amount of those expenses, since the total amount awarded is for the maximum amount recoverable under the Act, exclusive of the costs of future treatment, all future medical benefits should be paid in accordance with the Act. See La.R.S. 40:1299.43(A)(3). This assignment of error lacks merit.

The judgment of the trial court is affirmed.

AFFIRMED.


author: JOHN B. SCOFIELD, Judge Pro Tem.

text:
    Mark M. SIMMONS v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS, OFFICE OF MOTOR VEHICLES.
    No. 04-102.
    Court of Appeal of Louisiana, Third Circuit.
    May 12, 2004.
    Stephen A. Quidd, Dep’t. of Pub. Safety & Corr., Baton Rouge, LA, for Defendant/Appellant, La. Dep’t of Pub. Safety & Corr., Office of Motor Vehicles.
    William D. Dyess, Attorney at Law, Many, LA, for Plaintiff/Appellee, Mark M. Simmons.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, and GLENN B. GREMILLION and JOHN B. SCOFIELD , Judges.

       Honorable John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   JOHN B. SCOFIELD, Judge Pro Tem.

The Defendant, the Louisiana Department of Public Safety and Corrections, Office of Motor Vehicles (DPS), appeals a judgment of the trial court ordering DPS to issue Plaintiff, Mark M. Simmons, an unrestricted driver’s license as of December 11, 2003. For the reason set forth herein, we reverse the judgment of the trial court, deny Plaintiffs motion for reimbursement and dismiss, with prejudice, Mr. Simmons’ petition to reinstate his license as having been perempted.

FACTS

Although our decision herein renders, in large part, a careful examination of all of the stipulated facts unnecessary, we observe that there are material gaps and omissions in these stipulated facts which would have made a decision on the merits most difficult, if not impossible. We quote, in toto, the following facts which were stipulated to at trial:

1. On 1-25-02 — Mark Simmons submitted to [a] test and [was] arrested for DWI. This would result in a 90 day suspension.
2. Mr. Simmons made a timely request for an administrative hearing.
3. On April 22, 2002, Mr. Simmons sign [sic] a formal waiver of his right for an administrative hearing.
4. On June, 25, 2002, the temporary driving permit issued on February 25, 2002, in connection with Mr. Simmons request for a hearing expired.
5. No temporary driving permit was issued to Mr. Simmons between June 25, 2002 and July 26, 2002.
6. On July 26, 2002, Mr. Simmons was issued a 30 day temporary driving permit.
| .¿7. On August 26, 2002, the Department of Public Safety received a facsimile from the Division of Administrative Law indicating the request for a hearing was withdrawn by Mr. Simmons.
8. On August 27, 2002, the Department issued a hardship restricted driver’s license to Mr. Simmons. This license was set to expire on October 26, 2002.
9. On September 30, 2002, Mr. Simmons again submitted to the [sic] test in connection with another arrest for DWI. This would result in a 365 day suspension. This suspension commenced on October 30, 2002, and expired on October 30, 2003.
10.On December 6, 2002, as a result of Mr. Simmons arrest for DWI on September 30, 2002, during the time period within which Mr. Simmons had a hardship/restricted driver’s license, the Department suspended Mr. Simmons’ driver’s license for an additional year from October 30, 2003, to October 29, 2004.

LAW AND DISCUSSION

Louisiana Revised Statute 32:414 governing the suspension, revocation, renewal, and cancellation of licenses, and the judicial review of the same provides that the Department of Public Safety and Corrections shall suspend the license for ninety days of a person who either pleads guilty to or is found guilty of operating a vehicle while under the influence of alcohol, controlled or illegal substances. For a second offense, the statute prescribes a twelve month suspension. The statute also provides for the issuance of restricted licenses under certain conditions.

Further, La.R.S. 32:414(F)(4) (emphasis ours) provides, in pertinent part, as follows:

The failure on the part of any person to comply with this provision shall be punishable as herein provided. Any person denied a license or whose license has been suspended, cancelled, or revoked shall have the right to file an application within thirty days thereafter for a hearing before the district court of the parish in which the applicant resides.

| oThe trial courti apparently agreed with Mr. Simmons thp. subsequent to his first arrest for DWI - on January 25, 2002, he was somehow prejudiced by the alleged delays and miscommunications between the DPS and the Division of Administrative Law. While that may be true, the facts establish that Mr. Simmons’ license was last suspended on December 6, 2002. The record further establishes that it was not until June 25, 2003, that Mr. Simmons filed this suit challenging that suspension which had been ordered more than six (6) months earlier. Under the mandate of La.R.S. 32:414(F)(4), Mr. Simmons had thirty days after December 6, 2002, within which to file this suit. Obviously, the thirty day period established by the statute had long expired prior to the filing of this suit.

The Defendant, DPS, did not raise the issue of prescription and, therefore, it has waived any prescriptive rights it may have had. However, if the delay period at issue is peremptive rather than prescriptive, this court may consider it even though it has not been pled.

The thirty day period to apply for judicial review has been discussed in a number of eases. In Duke v. State, Dep’t of Pub. Safety, 424 So.2d 1262, 1263-64 (La.App. 3 Cir.1982), this court found that a driver loses his right to judicial review if it is not timely exercised, stating the following:

Plaintiff, Ken Duke, filed suit in district court seeking full reinstatement of his driving privileges, reduction of the suspension period from two years to one year, or issuance of a restricted drivers license. The defendant, the State through the Department of Public Safety, filed an answer and exception of no cause of action in the same pleading. At a hearing on defendant’s exception of no cause of action, evidence was admitted apparently without objection. The trial court maintained the exception and dismissed the suit at plaintiffs costs. We affirm.
|4Puke had received actual notice of his suspension which became effective on June 12, 1981.- Duke did not seek review of the suspension in the district court within the 30 days provided for in LSA-R.S. 32:414(E), but filed this suit on May 5,1982.
Duke also raises the argument that the procedure for suspension under LSA-R.S. 32:414 violates due process rights. However, this proceeding has been upheld in Price v. State, Department of Public Safety, 325 So.2d 759 (La.App. 1st Cir.1976). In that case, the court in commenting on 414 stated, “Due process requirements are met by the judicial review provided for in the foregoing statute.” In the case at bar, Duke had notice of the suspension and an opportunity for timely judicial review in the district court. He did not avail himself of that opportunity.

The court in Weems v. Dep’t of Pub. Safety & Corr., 571 So.2d 733 (La.App. 2 Cir.1990), addressed La.R.S. 32:667, which provides a deadline for one to seek an administrative hearing after having his license seized in connection with a DWI arrest. We find the legal analysis made by the second circuit in Weems to be equally applicable to La.R.S. 32:414 at issue here, i.e., the delay period is peremp-tive, not prescriptive. In Weems, 571 So.2d at 734-35, the court found:

LSA-R.S. 32:414 establishes the procedure for suspension of a driver’s license subsequent to conviction for certain offenses. LSA-R.S. 32:667 establishes the procedure for suspension of a license when a driver either refuses to submit to an approved chemical test for intoxication or the result of such a test shows a blood alcohol level of .10 or more. These are entirely different circumstances.
LSA-R.S. 32:667 specifically provides that in the event circumstances trigger this section, the arresting officer is to seize the driver’s license and issue a temporary receipt which serves as notice that the individual has not more than ten days from the date of arrest to seek an administrative hearing. LSA-R.S. 32:667 A(2).
There appeal’s to be no dispute that plaintiff has never sought an administrative hearing in accordance with LSA R.S. 32:667. We thus agree with the trial court that plaintiffs action is precluded, though we conclude that the period at issue is one of peremption rather than prescription.
|sThe distinction between peremption and prescription is not always apparent, and the treatise writers themselves are not always in accord. Pounds v. Schori, 377 So.2d 1195 (La.1979). Each case is to be considered separately on its own merits with the main consideration being the purpose sought to be achieved by the particular limitation period involved. Pounds v. Schori, supra. The factors suggestive of a peremptive period are the existence of a claim of a public law nature and a period of less than one year. Hebert v. Doctors Memorial Hospital, 486 So.2d 717 (La.1986). A further characteristic of a per-emptive period is the existence of an underlying public interest that a certain right exist only for a limited period of time. Hebert v. Doctors Memorial Hospital, supra.

Subsequently, in Green v. La. Dep’t of Pub. Safety & Corr., 603 So.2d 800, 802 (La.App. 1 Cir.1992)(emphasis ours), our colleagues of the first circuit commented:

In Weems v. Department of Public Safety & Corrections, 571 So.2d 733 (La.App. 2d Cir.1990), the second circuit held the 10 day period set forth in R.S. 32:667(A)(2) is peremptive and thus is not subject to interruption or suspension. Two of the factors considered by the court in making this determination were (1) whether the claim is of a public law nature and (2) whether the public’s interest is furthered by having the right exist for only a limited period of time. See also Comment, Prescription and Peremption — The 1982 Revision of the Louisiana Civil Code, 58 Tul.L.Rev. 593 (1983); Comment, Legal Rights and the Passage of Time, 41 La.L.Rev. 220 (1980).
While we disagree with the Weems court that the applicable time period is 10 days, we agree that the time limit set forth in R.S. 32:667 is peremptive. The claim involved herein is certainly of a public law nature. The public interest underlying the brief time period in which to request an administrative hearing is the prompt resolution of claims that driver’s licenses were improperly suspended and the prompt suspension of the licenses of those drivers who refuse the test without justification.

In comparing La.R.S. 32:667 and La. R.S. 32:414, we find that the thirty day period established by La.R.S. 32:414(F)(4) meets all the factors set out in Weems and Green necessary to be classified as a per-emptive period. Those factors include: 1) the purpose sought to be achieved by the particular limitation period involved- — the public interest underlying a brief time period in which to request an administrative hearing is the prompt resolution of claims that driver’s licenses were improperly [ (¡suspended and the prompt suspension of the licenses of drivers found to have been operating their vehicles while intoxicated; 2) the remedy is of a public law nature and available for a period of less than one year; and 3) the existence of an underlying public interest that an impaired driver’s right exist only for a limited period of time. Accordingly, we find the thirty day period in La.R.S. 32:414(F)(4) is peremptive.

In Gallo v. Gallo, 03-794, p. 8 (La.12/3/03), 861 So.2d 168, 174, the Louisiana Supreme Court explained:

This court’s recognition of peremption as a concept distinct from prescription formed the^ basis of enactment by the legislature in 1982 of LSA-C.C. arts. 3458-3461. See LSA C.C. art. 3458, Revision Cmts. — 1982(b), citing Pounds, 377 So.2d 1195. “Peremption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the peremptive period.” LSA-C.C. art. 3458. “The provisions on prescription governing computation of time apply to peremption.” LSA-C.C. art. 3459. “Peremption may be pleaded or it may be supplied by a court on its own motion at any time prior to final judgment.” LSA-C.C. art. 3460. “Peremption may not be renounced, interrupted, or suspended.” LSA-C.C. art. 3461.

Therefore, since Plaintiffs petition was filed in the district court more than six months after his lic'ense was suspended, his right, to seek judicial review of that action had been terminated by the passage of the thirty day peremptive period established by La.R.S. 32:414(F).

For these reasons, we dismiss, with prejudice, Mr. Simmons’ petition to reinstate his license as having been perempt-ed; we reverse the judgment of the trial court, and we deny Mr. Simmons’ motion for reimbursement. All costs of this appeal are assessed against Appellant, Mark M. Simmons.

PETITION DISMISSED WITH PREJUDICE; JUDGMENT REVERSED.


author: WALLER, Presiding Justice,

text:
    In the Interest of L.D.M., A Child.
    No. 2002-CA-01458-SCT.
    Supreme Court of Mississippi.
    April 1, 2004.
    Patricia Peterson Smith, attorney for appellant.
    Marcie Tanner Southerland, attorney for appellee.
    Before WALLER, P.J., COBB, P.J., and GRAVES, J.
   WALLER, Presiding Justice,

for the court.

¶ 1. Patricia Smith submitted her fee as guardian ad litem in this case, In re L.D.M., 848 So.2d 181 (Miss.2003), in the amount of $13,797.81 to the Youth Court of Warren County. The youth court approved payment totaling $4,000. Smith appeals, claiming that the youth court abused its discretion in not awarding her the entire fee. Finding that the youth court did not abuse its discretion, we affirm.

FACTS

¶ 2. On August 16, 2000, Smith was appointed guardian ad litem for L.D.M. in the case of In re L.D.M. In September 2000, Smith presented her first bill for her work as guardian ad litem to the youth court. She was paid $1000 in October 2000. She alleges this was substantially less than the amount she submitted. She continued submitting her bill every month but was never compensated. In June 2001, Smith filed a motion for payment of her fee as guardian ad litem. She asserted that she had prepared for and attended four hearings, performed in-depth investigations, and followed up on allegations made for or against the interested parties. Along with her motion, she attached a detailed statement of the hours spent representing L.D.M. Her statement showed that she had spent 125.60 hours representing L.D.M. at $75 per hour and had incurred out-of-pocket expenses of $37.94. She requested payment of $8,345.44.

¶ 3. Almost a year after Smith filed her motion for payment, the youth court entered an order approving payment for $3,000. It noted that for some reason the previous judge never took action to approve or disapprove payment of Smith’s bills. It found the amount Smith requested, now $13,787.81, was far above the amount paid for similar services, stating that although the bill was not unreasonable on its face, its reasonableness had.to be measured by the type of cases and payments made in similar cases for similar services and that the court had not approved a guardian ad litem fee over $1,000 for a cause. It also noted that the normal fee paid was usually under $500 per hearing, and that, reviewing numerous docket entries in the county claims docket, it had normally paid between $200-$400 per ease in casés that usually involved only one hearing or court appearance. The youth court found that Smith should be compensated in amounts consistent with the trial court’s recent history, and that because Smith performed such an extensive job, she would be awarded $750 per hearing, totaling $3,000.

¶ 4. Smith filed a motion to reconsider, stating that there has not been a case in the youth court that required the amount of time as In re L.D.M. She also argued that the majority of attorneys in the area who serve as guardians ad litem were not certified to act as a guardians ad litem and that it is not reasonable to believe that their fees are relevant to the amount of her fee. She stated that she had worked over 200 hours on the case and that the youth court was essentially paying her $20 per hour.

¶ 5. The youth court once again denied Smith’s motion, stating “it is well within the knowledge of the members of the Warren County Bar that billing documentation presented to certain Courts do [sic] not necessarily include all of the time counsel has spent working on a case, and lawyers bill only for ‘billable hours’ or they limit their bills because the lawyer knows that a bill approaching $500 per hearing would be well in excess of what is typically and reasonably approved.” The youth court also noted that there is a steady request from attorneys in the area that wish to do similar work at $100 to $500 per hearing. The court referenced two recent cases from the Warren County Chancery Court that were equivalent in scope and complexity to the present case where the chancellor approved a total of $2,000 in guardian ad litem fees. Aggrieved by the youth court’s order, Smith appeals.

DISCUSSION

I. Whether the trial court erred when it refused to order reasonable attorney fees to the guardian ad li-tem?

¶ 6. Smith argues that the youth court erred by approving payment for only $4,000 of her $13,787.81 fee. She contends that she put much more time into In re L.D.M. than other guardians ad litem in Warren County put into their cases, only two other guardians ad litem have worked more than five hours on a delinquency case, and that the court had no case to accurately compare with In re L.D.M. She argues that the court did not find her fees unreasonable, but only in excess of the amount normally paid to attorneys in Warren County, and that any comparison of the present case to cases from the Warren County Chancery Court is not supported by any evidence.

¶ 7. We review the grant or denial of attorney’s fees under an abuse of discretion standard. Ladner v. Logan, 857 So.2d 764, 773 (Miss.2003). Miss.Code Ann. § 43-21-121(6) (Rev.2000) states that “[u]pon order of the youth court, the guardian ad litem shall be paid a reasonable fee as determined by the youth court judge or referee out of the county general fund as provided under Section 43-21-123. To be eligible for such fee, the guardian ad litem shall submit an accounting of the time spent in performance of his duties to the court.” (emphasis added).

¶ 8. Smith states that guardians ad litem have an affirmative duty to zealously represent the child’s best interest. M.J.S.H.S. v. Yalobusha County Dep’t of Human Servs., 782 So.2d 737, 741 (Miss.2001). She also cites language that a guardian ad litem is to be compensated for his or her efforts. See Miss. R. Civ. P. 17(d) (“In all cases in which a guardian ad litem is required, the court must ascertain a reasonable fee or compensation to be allowed and paid to such guardian ad litem for his service rendered in such cause, to be taxed as a part of the cost in such action.”); In re Newsom, 536 So.2d 1 (Miss.1988). However, she does not point to anything that indicates that the youth court’s decision was unreasonable or that it abused its discretion as to the amount of compensation.

¶ 9. This Court has listed factors to be weighed when considering the proper amount of attorney fees to be awarded: (1) the relative ability of the parties; (2) the skill and standing of the attorney employed; (3) the nature of the case and novelty and difficulty of the questions at issue; (4) the degree of responsibility involved in the management of the case; (5) the time and labor required; (6) the usual and customary charge in the community; and (7) preclusion of other employment by the attorney due to the acceptance of the case.” Lahmann v. Hallmon, 722 So.2d 614, 623 (Miss.1998) (citing McKee v. McKee, 418 So.2d 764, 767 (Miss.1982)).

¶ 10. Although the youth court did not mention the McKee factors, it is evident that factors three and six weigh heavily in favor of the trial court’s decision. The youth court explained that the reasonableness of Smith’s fee had to be based on the normal amount of compensation paid to guardians ad litem in the locality. It stated that other cases in the chancery court as complex as the present case only warranted $2,000 in fees, and that the normal fee paid to guardians ad litem is under $500 per hearing in cases that normally require only one hearing. It found that $500 per hearing is reasonable because there is a steady flow of lawyers willing to accept similar cases at that rate. The youth court then recognized the complexity of In re L.D.M. and awarded Smith a higher amount than what it considered reasonable for the usual case. It is clear that the court did not abuse its discretion by refusing to order payment of the Smith’s entire fee; its award of only $4,000 of Smith’s fee was reasonable.

II. Whether the trial court’s policy concerning the use and payments of attorneys and guardians ad litem is prejudicial and adverse to the best interest of the child, essentially depriving the child of due process?

¶ 11. Smith argues that by limiting the amount paid to guardians ad litem, the youth court is creating an environment where the effective assistance of counsel is systemically absent in violation of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). She argues that, since the youth court limits the amount of compensation a guardian ad litem can receive, there is no incentive to zealously advocate for the child.

¶ 12. Smith is barred from asserting this argument because Smith never raised this issue in the youth court. This Court has repeatedly stated that issues not brought before the trial court are barred from being argued on appeal. See Shaw v. Shaw, 603 So.2d 287, 292 (Miss.1992).

CONCLUSION

¶ 13. The Youth Court of Warren County did not abuse its discretion in its award of guardian ad litem fees. Therefore, we affirm its judgment.

¶ 14. AFFIRMED.

SMITH, C.J., COBB, P.J., EASLEY, CARLSON, GRAVES AND DICKINSON, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.

      . This Court vacated and remanded the youth court’s order removing L.D.M. from the custody of her grandmother and awarding custody to the mother when the youth court did not state why it did not adopt the recommendations of the guardian ad litem. In re L.D.M., 848 So.2d at 182-83.

      . Warren County Court Judge H. Gerald Ho-semann initially presided over this case. However, Judge Hosemann was suspended from his duties by order of this Court on April 24, 2002, and Samuel D. Habeeb was appointed special judge on April 30, 2002.

      . The only brief in the present case was filed by Smith.


text:
    Sarah BULLOCK v. LIFE INSURANCE COMPANY OF MISSISSIPPI.
    No. 2001-CA-01913-SCT.
    Supreme Court of Mississippi.
    May 6, 2004.

      John W. Christopher, attorney for appellant.
    Kenna L. Mansfield, Jr., Jackson, attorney for appellee.
   WALLER, Presiding Justice,

for the Court.

¶ 1. Life Insurance Company of Mississippi (“Life”) filed a complaint for rescission, monetary damages and injunctive relief against Sarah Bullock, claiming that, in connection with a promissory note by Bullock to Trustmark National Bank, Bullock applied for credit life and disability insurance (“CL & D insurance”) with an intent to defraud by submitting false disability claims and collecting benefits thereon. Bullock submitted a claim alleging that she broke her left foot and hurt her right hand. She submitted claims on November 2, 1998, and December 3, 1998, and January 15, March 2, April 29, July 12, and September 9, 1999. Life paid benefits in the amount of $3,297.60 to Bullock on the basis of these claims.

¶ 2. Life filed the complaint in the Chancery Court of Madison County, Mississippi, alleging that its principal place of business was in Madison County. In a later pleading, it alleged that, under Miss.Code Ann. § 11-5-1 (Rev.2002), the action was a suit “respecting real or personal property,” and that some of the personal property was located in Madison County. In a motion for change of venue, Bullock alleged that she was an adult resident citizen of Simpson County, Mississippi, that the branch bank where she obtained the loan and purchased the CL & D insurance was in Simpson County, and that the cause of action accrued in Simpson County. The chancery court denied the motion for change of venue.

¶ 3. In her answer to Life’s complaint, Bullock filed a counterclaim against Life, alleging breach of contract for refusal to pay benefits and negligent and/or intentional infliction of emotional distress.

¶ 4. Meanwhile, Life filed a motion for summary judgment and attached exhibits which showed that, during the time that Bullock was submitting claims to Life, she was also submitted claims to two other CL & D insurers. Bullock’s stated diagnoses in the Life claim forms was different from the stated diagnoses in the claim forms for the other insurers. Life contended that Bullock included material misrepresentations in her application for CL & D insurance. Furthermore, Life was entitled to have the policy rescinded retroactive to the date of issue; therefore there was no breach of contract. Life reasoned that, if no breach of contract existed, no claim for emotional distress existed.

¶ 5. After thoroughly discussing all of the documentary evidence presented by Life, the chancellor granted summary judgment to Life, finding that Bullock had failed to “rebut [the motion] by producing significant probative evidence showing that there were indeed genuine issues for trial.” The chancellor also denied Bullock’s motion for summary judgment. From this judgment, Bullock appeals.

DISCUSSION

I. WHETHER THE CHANCELLOR ERRED IN GRANTING LIFE’S MOTION FOR SUMMARY JUDGMENT.

¶ 6. Bullock contends that summary judgment was improper because (1) triable issues of fact existed; and (2) the chancellor improperly made credibility determinations in granting summary judgment. We employ a de novo standard of review of a trial court’s grant or denial of a summary judgment and examine all the evidentiary matters before it—admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law, summary judgment should forthwith be entered for the movant. Otherwise, the motion should be denied. Hurdle v. Holloway, 848 So.2d 183, 185 (Miss. 2003) (citing Heigle v. Heigle, 771 So.2d 341, 345 (Miss.2000)).

Triable Issues of Fact

¶ 7. The documentary evidence in the record shows as follows:

(1) In her application for Life’s CL & D insurance dated June 25, 1998, Bullock stated that she was not currently disabled and was actively engaged in full-time employment.

(2) After applying for the CL & D insurance, Bullock submitted a claim for disability benefits, alleging that she had fallen, breaking her left foot and spraining her right hand. She ceased working on July 24,1998.

(3) Bullock submitted additional claims on November 2, 1998, and December 3, 1998, and January 15, March 2, April 29, July 12, and September 9, 1999. All of these claims stated that she was disabled from and after July 24, 1998, due to the fall.

(4) The claim forms submitted on July 12 and September 16, 1999, showed that she was disabled due to depression and anxiety.

(5) Bullock submitted a claim form to Life Investors Insurance Company on July 6, 1998, in which she stated that she was disabled due to chest pain and shortness of breath, that her first symptom occurred on May 7, 1998, and that she was not working as of June 21, 1998. She submitted subsequent claims to Life Investors on August 14, September 8, November 2 and November 3,1998.

(6) Bullock submitted a claim form to Cherokee National Life on August 17, 1998, in which she stated that she was disabled due to shortness of breath, that her first symptom occurred on May 7, 1998, and that she was totally disabled as of June 21,1998.

(7) Bullock’s physician, Charles Pruitt, M. D., Ill, stated that Bullock visited him for chest pain and shortness of breath on May 7, 1998, and that Bullock became disabled due to these conditions as of June 21,1998, and/or June 22,1998.

¶ 8. When questioned about the accuracy of these representations at her deposition, Bullock averred that they were true.

¶ 9. We find that the documentary evidence, when coupled with Bullock’s aver-ments at her deposition, overwhelmingly proves that Bullock made material misrepresentations to Life and that Life is entitled to rescission of the contract. The documents she filed with the three insurance companies completely contradict themselves. There are three dates on which she claims to have become totally disabled. The cause for her total disability (shortness of breath or chest pain or broken foot and sprained hand or anxiety and depression) differs among the applications.

¶ 10. To rescind an application for insurance, an insurer must show that the application contains answers which are false, incomplete, or misleading and that such answers are material to the acceptance of the risk or to the hazard to be assumed. Prudential Ins. Co. of Am. v. Estate of Russell, 274 So.2d 113, 116 (Miss.1973). The application Bullock submitted to Life is, at the least, incomplete because she failed to mention her “disability” due to shortness of breath and/or chest pain. She also stated that she was working full time as of the date of the application, July 24, 1998, but on the other applications, she stated that she no longer worked as of June 21, 1998 and/or June 22, 1998, both dates being prior to July 24,1998.

Credibility Determinations

¶ 11. Bullock contends that the chancellor improperly made credibility determinations in ruling on the motion for summary judgment. This claim is frivolous. The statements so obviously contradict each other, that one can only conclude that false statements were made.

II. WHETHER THE CHANCELLOR ERRED IN DENYING BULLOCK’S MOTION FOR CHANGE OF VENUE.

¶ 12. Because summary judgment was appropriately granted to Life, this issue is moot.

CONCLUSION

¶ 13. We affirm the Chancery Court of Madison County’s judgment in favor of Life Insurance Company of Mississippi.

¶ 14. AFFIRMED.

SMITH, C.J., COBB, P.J., CARLSON AND DICKINSON, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, GRAVES AND RANDOLPH, JJ., NOT PARTICIPATING.

      . Miss.Code Ann. § 1-3-41 (Rev.1998) defines "personal property” as "all written instruments by which any pecuniary obligation, or any right, title, or interest in any real or personal estate, shall be created, acknowledged, transferred, incurred, defeated, discharged, or diminished.”


author: COBB, Presiding Justice,

text:
    Danny SATCHFIELD v. R.R. MORRISON & SON, INC., Premium Tank Lines, Inc. and Bruce Jordan, as Agent of Premium Tank Lines, Inc.
    No. 2002-CA-01563-SCT.
    Supreme Court of Mississippi.
    May 6, 2004.

      John Randall Santa Cruz, attorney for appellant.
    Walter William Dukes, Gulfport, Trace D. McRaney, Ronald G. Peresich, Emilie Fischer Whitehead, Michael E. Whitehead, Biloxi, attorneys for appellees.
   COBB, Presiding Justice,

for the Court.

¶ 1. At issue in this case is whether a witness to a service station gasoline explosion which killed six people unrelated to him is a foreseeable plaintiff to whom the defendants owed a duty of care. Under the precedent of this Court, no such duty was owed. Therefore we affirm the trial court’s grant of summary judgment for the defendants.

FACTS AND PROCEDURAL HISTORY

¶ 2. On August 9, 1998, an underground gasoline tank at a Texaco Fast Lane service station in Biloxi, Mississippi was being filled from a fuel truck owned by Premium Tank Lines, Inc. (Premium) and operated by Bruce Jordan (Jordan). During the fueling procedure the tank overflowed, and a large quantity of gasoline spilled into a nearby intersection where it ignited. The ensuing fire resulted in property damage and personal injuries, including several fatalities.

¶ 3. Danny Satchfield, the plaintiff in the trial court below, was at the Texaco station purchasing gasoline for his automobile and witnessed the explosion and the painful death of the victims. Accompanying him were his son, Kurt Satchfield, and a good friend, David Rogers. Satchfield alleges that his vehicle was approximately five feet away from the explosion and that witnessing the explosion .and the violent, ■ painful deaths of his fellow citizens caused him to suffer from emotional shock and trauma. He also alleges that he was in immediate fear of imminent death or injury to himself, his son and his close friend, and he was left with permanent psychological injury requiring ongoing medical treatment. Satchfield sought recovery for his injuries from R.R. Morrison & Sons, Inc. (Morrison), the owner of the Texaco station in question, as well as Premium and Jordan. Following Satchfield’s complaint, Morrison propounded requests for admissions seeking only to establish that Satchfield was not related to the victims.

¶ 4. Based upon Satchfield’s affirmative response to these inquiries, Morrison filed a motion for summary judgment. Morrison claimed that, as a matter of law, Satch-field could not recover because he is not related to any of the victims. Premium and Jordan subsequently filed similar motions. Concluding that Satchfield’s claims were those of a bystander, and since it was undisputed that he was not physically injured as a result of the fire and explosion and that he was not related to any of the victims, the trial court granted summary judgment for the defendants. From that judgment Satchfield appeals.

ANALYSIS

¶ 5. This Court applies a de novo standard of review of a trial court’s grant or denial of summary judgment. Hudson v. Courtesy Motors, Inc., 794 So.2d 999, 1002 (Miss.2001); Jenkins v. Ohio Cas. Ins. Co., 794 So.2d 228, 232 (Miss.2001); Heigle v. Heigle, 771 So.2d 341, 345 (Miss.2000). Our appellate standard for reviewing the granting or denial of summary judgment is the same standard as that of the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure: summary judgment shall be granted if “the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact....” Hudson, 794 So.2d at 1002; Jenkins, 794 So.2d at 232; Heigle, 771 So.2d at 345. The burden of demonstrating that no genuine issue of fact exists is on the moving party. Id. “The presence of fact issues in the record does not per se entitle a party to avoid summary judgment. The court must be convinced that the factual issue is a material one, one that matters in an outcome determinative sense ... [T]he existence of a hundred contested issues of fact will not thwart summary judgment where there is no genuine dispute regarding the material issues of fact.” Hudson, 794 So.2d at 1002 (quoting Simmons v. Thompson Mach. of Miss., Inc., 631 So.2d 798, 801 (Miss.1994)).

I. No close relationship between Satchfield and victims.

¶ 6. Morrison, Premium and Jordan assert that summary judgment was proper because Satchfield, unrelated to any of the victims, cannot satisfy the elements necessary to support his claim. The trial court agreed.

¶ 7. In Entex, Inc. v. McGuire, 414 So.2d 437 (Miss.1982), this Court set the standard for determining whether a defendant has a duty of care to a bystander plaintiff:

In determining, ... whether defendant should reasonably foresee the injury to plaintiff, or, ... whether defendant owes plaintiff a duty of care, the courts will take into account such factors as the following: (1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and victim were closely related, as contrasted with an absence of any relationship or the presence of only a distance relationship.

Id. at 444 (quoting Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, 920 (1968)) (emphasis added). In O’Cain v. Harvey Freeman & Sons, Inc., 603 So.2d 824 (Miss.1991), this Court held that, in Entex, the “Court set out the criteria which one must meet on a claim of emotional trauma by a bystander[.]” Id. at 829 (emphasis added).

¶ 8. Satchfield argues that Entex does not foreclose his claim. He argues that case is only one in a long line of cases related to recovery for emotional harm or injury and that Entex has been substantially expanded. He argues that the factors laid out in Entex are not mandatory elements of foreseeability, but rather only guidelines for that determination. For support, Satchfield points out that Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968), the California case which laid out the factors this Court adopted in Entex, expressly required that foreseeability be adjudicated on a case-by-case basis. See id. at 920.

¶ 9. While Satchfield’s analysis of Dillon is correct, it is not persuasive authority. Numerous Mississippi cases have reaffirmed the applicability of the factors set forth in the Entex decision as they relate to bystander recovery for emotional distress' in Mississippi. As mentioned previously, O’Cain held that, in Entex, the “Court set out the criteria which one must meet on a claim of emotional trauma by a bystander[.]” Id. at 829 (emphasis added). In Summers ex rel. Dawson v. St. Andrew’s Episcopal School, Inc., 759 So.2d 1203 (Miss.2000), this Court quoted the Entex factors as the standard to determine whether the parents of a child could recover damages for emotional distress for injuries the Child sustained at school. Id. at 1210. Although in Summers recovery was barred by the failure of the plaintiffs to satisfy the contemporaneous observation requirement, the Court clearly reaffirmed the applicability of all the Entex factors by stating that the plaintiffs “fail[ed] the criteria as a bystander as enumerated in Entex.” Id. See also Ill. Cent. R.R. v. Hawkins, 830 So.2d 1162, 1174-75 (Miss. 2002) (holding that there are three criteria required to qualify as a bystander who is owed a duty of care, one of which is relatedness); Thomas v. Global Boat Builders & Repairmen, Inc., 482 So.2d 1112, 1117 (Miss.1986) (affirming dismissal of emotional distress claim where, inter alia, the plaintiff was not related to the victim).

¶ 10. The Mississippi federal courts have also addressed bystander recovery for emotional distress, citing Entex. See Moore v. Kroger Co., 800 F.Supp. 429, 433 (N.D.Miss.1992) (denied emotional distress claims of family members of victim of motor vehicle accident when family members did not witness accident), aff'd mem. 18 F.3d 936 (5th Cir.1994); Campbell v. Beverly Enterprises, 724 F.Supp. 439, 441 (S.D.Miss.1989) (denied emotional distress claim of family members of an allegedly mistreated nursing home patient because the family members did not observe the alleged mistreatment).

¶ 11. Satchfield cites Plaisance v. Texaco, Inc., 937 F.2d 1004 (5th Cir.1991), where a Fifth Circuit panel recognized claims for purely emotional injuries under the Jones Act. However, on rehearing en banc, the en banc Fifth Circuit concluded that it was not required to decide .whether or under what circumstances it might permit recovery of damages for purely emotional injuries. Plaisance v. Texaco, Inc., 966 F.2d 166, 169 (5th Cir.1992) (en banc). Since it involved the Jones Act and federal maritime law and given the decision by the en banc Fifth Circuit, Plaisance is neither controlling nor persuasive on the Mississippi law issue before us today.

¶ 12. The Supreme Court of Connecticut has discussed why the three-prong test set forth in Entex must be adhered to strictly:

We are aware that the application of pure rules of foreseeability could lead to unlimited liability. “[Tjhere are ample policy concerns for setting limits or administrative boundaries establishing the permissible instances of recovery. There are fears of flooding the courts with ‘spurious and fraudulent claims’; problems of proof of the damage suffered; exposing the defendant to an endless number of claims; and economic burdens on industry.” Lejeune v. Rayne Branch Hospital, 556 So.2d 559, 566 (La.1990). For example, “[i]t would be an entirely unreasonable burden on all human activity if the defendant who has endangered one person were to be compelled to pay for the lacerated feelings of every other person disturbed by reason of it, including every bystander shocked at an accident, and every distant relative of the person injured, as well as all his friends.” W. Prosser & P. Keeton, Torts (5th Ed.1984) §§ 54, p. 366; Thing v. La Chusa, supra, 48 Cal.3d at 666-67, 771 P.2d 814, 257 Cal. Rptr. 865....
With these considerations in mind, and borrowing from the experience of other jurisdictions, we agree that specific limitations must be imposed upon the reasonable foreseeability rule. We recognize that those limitations, albeit somewhat arbitrary, are “necessary in order not to leave the liability of a negligent defendant open to undue extension by the verdict of sympathetic juries, who under our system must define and apply any general rule to the facts of the case before them.... Prosser, Torts (4th Ed.) §§ 54, p. 335.”

Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852, 862-63 (1996) (emphasis added). The standard ultimately adopted by Connecticut is virtually identical to the Entex standard. Id. The Connecticut high court’s explanation establishes why there must be specific limitations upon the standard for bystander recovery for emotional distress damages.

¶13. Allowing Satchfield’s claim would expose the defendants to unlimited liability; Every person who witnessed this horrible accident could bring suit. There must be some limit to foreseeability. This limit has been set by Entex, and since Satchfield, unrelated, to any of the victims of this unfortunate accident, cannot satisfy Entex, this assignment is without merit.

¶ 14. In an attempt to avoid summary judgment, Satchfield submitted his affidavit wherein he alleges that, while accompanied by a friend and his son, he was “in [his] vehicle preparing to leave the service station when a huge explosion ensued. [Satchfield’s] vehicle was approximately 5 feet away from the explosion. [He] was in immediate fear of immanent [sic] death or injury to [himself] and [his] son and friend.” Satchfield then goes on to restate the allegations of his complaint related to the horror he witnessed during and after the explosion, and concludes by stating that the incident caused him to “suffer from emotional shock and trauma”, leaving him with “permanent psychological injury” for which he has received psychological treatment.”

¶ 15. The trial court determined that Satchfield could not recover based upon fear of injury to his son because he “failed to establish that his son was a ‘victim’ of the fire and explosion, i.e., his son did not sustain any physical harm.” Entex, 414 So.2d at 444. See also Campbell v. Beverly Enterprises, 724 F.Supp. at 442 (no recovery for third-party mental distress without specific and serious physical injury to another with whom plaintiff shares a close relationship).” We find no fault with the trial judge’s ruling on this point.

¶ 16. Regarding Satchfield’s allegations that he was in immediate fear of imminent death or injury, his complaint makes no such allegations, nor does his appellate brief. Satchfield alleges nothing more than a bystander claim for emotional distress. His entire claim is centered on his witnessing the horror experienced by the victims of the explosion. Thus, based on Entex, the trial court did not err in dismissing his claim. This assignment is without merit.

II. Allegations of gross negligence and punitive damages awarded to others.

¶ 17. Satchfield argues that the standard for bystander recovery for emotional distress, as set forth in Entex, is not applicable because the defendants are “charged with willful, wanton and grossly negligent conduct.” A similar argument was dismissed by the federal district court in Moore v. Kroger Co.:

Plaintiff insists that Campbell expands Entex by allowing family members to recover for emotional distress even if they are outside the zone of danger and outside the range of immediate sensory perception where the negligence is gross or wanton, as is arguably the case herein. In other words, as the severity of the negligence increases so should the scope of foreseeable plaintiffs.

Moore, 800 F.Supp. at 433. The district court then held that the plaintiffs argument was “an inaccurate characterization of Mississippi law.” Id. The court flatly rejected the plaintiffs argument that the scope of foreseeability should be expanded as the severity of the negligence increases. Id. at 433-34.

¶ 18. This Court cited Moore with approval in Summers, 759 So.2d at 1210. In Summers we did not distinguish the district court’s holding in Moore.

¶ 19. Satchfield cites a host of cases dealing with emotional distress and grossly negligent conduct; however, none of them are bystander cases. Because Satchfield cites no pertinent or persuasive authority which stands for the proposition he asks us to accept, and because there is applicable law to the contrary, we must conclude that the trial court properly dismissed his claims. This assignment is without merit.

CONCLUSION

¶ 20. There is no doubt that the explosion was a traumatic and life changing experience for Satchfield. His damages are well-documented and not put into question by the defendants. However, based on the law of this State, he has no means of recovery. Foreseeability must end somewhere. Entex says that, with bystander claims, it ends with injury to a close relative. None of Satchfield’s relatives were injured in this tragedy. Thus, the trial court’s grant of the defendants’ motions for summary judgment is affirmed in all respects.

¶ 21. AFFIRMED.

SMITH, C.J., WALLER, P.J., EASLEY, CARLSON AND DICKINSON, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

      . Specifically, Satchfield alleges that he suffers from mental anguish, mental shock, survivor’s guilt, flashbacks, depression, post-traumatic stress disorder, psychological trauma and other psychological damages which resulted in continuous psychiatric treatment and care for him.

      . Satchfield argues that because punitive damages were awarded to victims of the explosion and their survivors, he should be entitled to the same. Such damages were not awarded, however, based on any bystander emotional distress claims. Additionally, the facts and circumstances regarding the entry of the judgment are not set forth in the record. These facts are, therefore, improper for our consideration.

      . Although Satchfield argues that this issue was not proper for the trial judge’s consideration since it was not raised by the defense in its motion for summary judgment, the issue was clearly raised in the defense's rebuttal to the plaintiff's response to defense motion for summary judgment.


author: CARLSON, Justice, DICKINSON, Justice,

text:
    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 Weath-erly, Jr., Gulfport, attorneys for appellants.
    Michael A. Heilman, Christopher Thomas Graham, Marc A. Biggers, Greenwood, attorneys for appellees.
   CARLSON, Justice,

for the Court.

¶ 1. Plaintiffs Michael and Aice 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, Aice 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 venue, 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 1248, 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 contents of the .agreed order because they made numerous changes to the order before signing it. Counsel for the plaintiffs also filed a motion for a protective order to prevent the plaintiffs from having to submit to a deposition on the scheduled dates listed in the order; therefore, counsel was aware that the plaintiffs’ attendance had been required by the circuit court.

¶ 9. Gulf National contends the trial court did consider all possible sanctions. The order stated that the trial judge was relying on all arguments set forth in Gulf National’s Motion to Dismiss, Memorandum Brief in support of the motion and the Rebuttal in support of the motion. In Gulf National’s motion to dismiss, Gulf National asked the trial court to consider other sanctions in the alternative; therefore, the trial court considered other sanctions and rejected those sanctions in favor of dismissal with prejudice. Gulf National also argues that it was substantially and materially prejudiced by the plaintiffs’ repeated. attempts to thwart the discovery process.

¶ 10. The order, entered on January 24, 2000, which was signed by Judge Yerger, and agreed to and approved by one of the attorneys for the plaintiffs and for Gulf National, clearly and unequivocally directed inter alia, that:

depositions of the Plaintiffs and other witnesses hereafter noticed shall take place beginning February 2, 2000, and continue from day to day through February 4, 2000, until completed. In addition, the week of February 7, 2000 shall be set aside for the taking of depositions in this case. The time and place of the depositions shall be agreed upon between the parties.

During the hearing on Gulf National’s Motion to Dismiss which was held on July 17, 2000, Circuit Judge Breland Hilbum presiding, the plaintiffs again argued that they did not submit to the scheduled depositions because Gulf National had not fully answered their discovery requests. A review of the transcript of this hearing reveals the following:

BY THE COURT: Mr. Weatherly, I want to ask you one question. I’m having difficulty following your argument that discovery is not complete and that you are, therefore, not prepared for a deposition of your clients. I’m having a struggle with how that varies or nullifies the effect of a court order that you would submit to a deposition.
WEATHERLY: Well, Judge, the crux of it is that this discovery is something that we would need to prepare them for the deposition because it’s going to contain documents that we believe would have a lot to do with their counterclaims against Mr. and Ms. Salts, and we need to have those documents to properly prepare them. The court order should have also contained a sentence that said that there were numerous discussions about, yes, we will agree to February 2nd if you answer our discovery prior to that date, and that was my error in that regard that I signed that order. I thought that Mr. Sawyer and Mr. Heilman had everything agreed to and that matter would be taken care of. The discovery was not answered, and that was the basis for the motion to continue the deposition that was filed January 31st; that they’ve not answered the discovery, and so I hope I’ve answered you.
BY THE COURT: I still don’t follow your logic of how you’re able to use this as a reason for not abiding by the directives of the Court. Those certainly should have been arguments that were raised prior to the execution of this order or either it’s something that should have been brought to the Court’s attention where this order would have been vacated by the Judge, but I have a real struggle with your unilaterally deciding you’re not going to comply with what is seemingly a very clear provision of the order.
I have never heard of filing a motion as being a release from the mandate of an order unless that motion is heard and a decision is made. That’s the problem that I’m having.
I understand your arguments and your complications that you’re representing to the Court result from not having discovery, but we still get to the point that there was an order in force which was never changed.

(emphasis added). Judge Hilburn could not have made it any clearer-reasons and/or excuses notwithstanding, counsel never offered Judge Hilburn any plausible reason to justify ignoring a court order.

¶ 11. At this same hearing, Mr. Heil-man, counsel for Gulf National, testified that all discovery had been produced to the plaintiffs’ attorneys.

BY HEILMAN: The documents have been produced. I don’t have any question in my mind about that. If Mr. Sawyer doesn’t have them and Mr. Weatherly doesn’t have them, I don’t have a clue. Mr. and Ms. Salts’ lawyer somewhere out there will have them.

Considering the arguments of counsel presented during the hearing and briefs submitted in support of the motion, the trial court quite appropriately granted Gulf National’s motion and dismissed, with prejudice, the plaintiffs’ action against all defendants.

¶ 12. In Pierce v. Heritage Properties, Inc., 688 So.2d 1385 (Miss.1997), this Court adopted the holding of the United States Court of Appeals for the Fifth Circuit in Batson v. Neal Spelce Assocs., Inc., 765 F.2d 511 (5th Cir.1985), which determined the appropriateness of dismissal as a sanction for failure to make discovery:

First, dismissal is authorized only when the failure to comply with the court’s order results from wilfulness or bad faith, and not from the inability to comply. Dismissal is proper only in situation [sic] where the deterrent value of Rule 37 cannot be substantially achieved by the use of less drastic sanctions. Another consideration is whether the other party’s preparation for trial was substantially prejudiced. Finally, dismissal may be inappropriate when neglect is plainly attributable to an attorney rather than a. blameless client, or when a party’s simple negligence is grounded in confusion or sincere misunderstanding of the court’s orders.

Pierce, 688 So.2d at 1389 (quoting Batson, 765 F.2d at 514 (citations omitted)).

¶ 13. In Pierce, this Court affirmed the trial court’s dismissal with prejudice after finding that “the trial court’s sanction against Pierce was warranted to protect the integrity of the judicial process due to Pierce’s abuse of the discovery process and presentation of false testimony.” 688 So.2d at 1387. This Court determined Pierce’s conduct of willfully concealing the fact that another person was present when she was injured constituted bad faith. Id. at 1390. The Court also held that “there is no requirement that the defendant be substantially prejudiced by the absence of evidence.” Id. at 1391. Finding no abuse of discretion by the trial court, this Court affirmed the trial court’s dismissal. Id. at 1392.

¶ 14. In Scoggins v. Ellzey Beverages, Inc., 743 So.2d 990 (Miss.1999), this Court affirmed the trial court’s dismissal pursuant to Miss. R. Civ. P. 37, finding that Scoggins had repeatedly misrepresented her medical history. The trial court, recognizing its duty to impose the least severe sanction available and considering all available sanctions, found “ ‘no" other sanction that would accomplish the purpose for which the sanction is imposed.’” Id. at 993 (citing the trial court). Following the holding of Pierce, the Court determined that the trial court did not abuse its discretion in finding “that Scoggins’s failure to comply with Ellzey’s discovery requests was willful and that Scoggins’s attempts to explain her misconduct were not credible were supported by substantial evidence in the record.” Id. at 996. Therefore, this Court affirmed the dismissal by the trial court. Id.

¶ 15. In Wood v. Biloxi Public School District, 757 So.2d 190 (Miss.2000), we reversed the trial, court’s dismissal finding that the case was distinguishable from Scoggins and Pierce, in that the “trial court’s ruling [was] based upon a single alleged untruthful response in an interrogatory.” 757 So.2d at 191 (emphasis added). We also determined that it was “not established that Wood knowingly made a false statement and it [was] certainly not established that he submitted a pattern of false responses under the facts here, and applying] our precedent case law, other more appropriate sanctions should be considered by the lower court.” Id. at 191-92. Therefore, we reversed the dismissal and remanded the case for trial. Id. at 195.

¶ 16. In Gilbert v. Wal-Mart Stores, Inc., 749 So.2d 361 (Miss.Ct.App.1999), the Court of Appeals affirmed the trial court’s dismissal with prejudice after Gilbert failed to appear at his deposition. The Court of Appeals found Gilbert’s actions to be willful, in bad faith and prejudicial to Wal-Mart’s preparation for trial. Id. at 366. After receiving, notice of his deposition from Wal-Mart, Gilbert, in response, mailed a list of demands to be met before he would consent to having his deposition taken. Id. at 363. Wal-Mart did not comply with Gilbert’s demands; therefore, Gilbert did not appear for his scheduled deposition. Id. Wal-Mart immediately filed a motion for sanctions. Id. The trial court entered an order which stated, inter alia, if Gilbert did not appear for his scheduled deposition, “ ‘this Court, without necessity of further notice to plaintiff, will enter an order fully and finally dismissing the Complaint and all parties to this action with prejudice.’ ” Id. (citing the trial court’s Order). After Wal-Mart renoticed Gilbert’s deposition, once again Gilbert failed to appear. The trial court then dismissed the action with prejudice. Finding that the trial court’s dismissal was not an abuse of discretion and was within the bounds of Miss. R. Civ. P. 37, the Court of Appeals affirmed the decision of the trial court. Id. at 366.

¶ 17. Of particular import is our recent decision in Bowie v. Montfort Jones Memorial Hospital, 861 So.2d 1037 (Miss.2003). In Bowie, the trial judge granted summary judgment for the defendants in a medical malpractice case, after the plaintiffs failed to comply with the trial court discovery order concerning timely designation of expert witnesses. Without this expert designation and affidavit, the plaintiffs were unable to make out a prima facie case of medical malpractice sufficient to withstand a summary judgment motion. Id. at 1040. En route to upholding the trial court’s grant of summary judgment for failure to comply with the discovery order, we stated inter alia:

Our trial judges are afforded considerable discretion in managing the pre-trial discovery process in their courts, including the entry of scheduling orders setting out various deadlines to assure orderly pre-trial preparation resulting in timely disposition of the cases. Our trial judges also have a right to expect compliance with their orders, and when parties and/or attorneys fail to adhere to the provisions of these orders, they should be prepared to do so at their own peril (citations omitted).
While the end result in today’s case may appear to be harsh, litigants must understand that there is an obligation to timely comply with the orders of our trial courts.

861 So.2d at 1042-43.

¶ 18. Returning to today’s case, the plaintiffs filed their initial complaint against Gulf National and other defendants in 1996. After the trial court was made aware of the problems with scheduling depositions, it entered an order setting the depositions of the plaintiffs for February 2, 2000. Whether it was their decision or on advice from their attorneys, the plaintiffs chose to disregard the order and did not submit themselves for their scheduled depositions. This was a willful failure to comply with the court’s order. By not being able to take the deposition of the plaintiffs, the defendants’ trial preparation has been substantially prejudiced. Miss. R. Civ. P. 37(b)(2)(C) provides inter alia that if a deponent fails to appear for a deposition after being directed by the trial court to do so, the trial court may dismiss the action. This is exactly what happened in the case sub judice. Therefore, this Court finds that the trial court’s dismissal of the plaintiffs’ action was within its exercise of discretion under the provisions of Miss. R. Civ. P. 37(b)(2)(C). To hold otherwise would render this provision of the rule meaningless and one which we should simply judicially abrogate if it is not going to be enforced. A rule which is not enforced is no rule at all.

CONCLUSION

¶ 19. The trial court did not abuse its discretion in dismissing the plaintiffs’ action against all defendants with prejudice. Therefore, the judgment of the Circuit •Court of the First Judicial District' of Hinds County is affirmed.

¶ 20. AFFIRMED.

SMITH, C.J., COBB, P.J., AND EASLEY, J„ CONCUR. DICKINSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, P.J. DIAZ, GRAVES AND RANDOLPH, JJ., NOT PARTICIPATING.

DICKINSON, Justice,

dissenting:

¶ 21. In the case before us, the single question is whether the plaintiffs’ lawsuit should have been dismissed, with prejudice, because of perceived misdeeds of plaintiffs’ counsel. Because of my respect for the wisdom and opinions of those with whom I disagree, I have revisited the question and carefully reexamined my own opinions. Still, I find it impossible to conclude that the majority has reached the correct conclusion. I therefore respectfully dissent.

¶ 22. It is claimed by the majority, and supported by the record, that the deposition of the plaintiffs were set by order of the court and the plaintiffs failed to appear. Plaintiffs’ counsel claims there was an understanding in place that, prior to the deposition, defendants’ counsel would produce certain documents which were overdue in discovery and that the documents were not produced. Defense counsel, the trial court, and the majority of this Court, reply that counsel is not free to ignore a court order and that absent a protective order, the plaintiffs should have attended. Since the plaintiff failed to attend without leave of court, they should be punished.

¶ 23. While I do not deny it, I am not prepared to say that the sanction fits the infraction under the facts in the record and controlling law. This becomes more clear upon review of the authorities cited by the majority, which -indicate that dismissal, with prejudice, is an extreme sanction, appropriate in cases of the most egregious conduct.

¶ 24. The majority cites Pierce v. Heritage Properties, Inc., supra, in which this Court agreed that “dismissal is proper only in situation (sic) where the deterrent value of Rule 37 cannot be substantially achieved by the use of less drastic sanctions.” Pierce further instructs us that “dismissal may be inappropriate when neglect is plainly attributable to an attorney rather than a blameless client....” Pierce, 688 So.2d 1385, 1389 (citations omitted).

¶ 25. I am unable to find a single indication in the record before us that the trial court — for even a moment — considered less drastic sanctions. Furthermore, the failure to attend the depositions was unquestionably the decision of plaintiffs’ counsel. In Pierce, the plaintiffs complaint was dismissed, with prejudice, because Pierce not only abused the discovery process, but also intentionally presented false testimony. Thus, Pierce would seem to stand less as authority for the majority than for my view.

¶26. In Scoggins v. Ellzey Beverages, Inc., cited by the majority, the plaintiff repeatedly misrepresented her medical history.

¶ 27. In Gilbert v. Wal-Mart Stores, Inc., the plaintiff was plainly told that failure to attend the scheduled deposition would result in dismissal of the complaint. The plaintiff ignored the warning and refused to attend, resulting in an appropriate dismissal.

¶ 28. In Bowie v. Montfort Jones Memorial Hospital, the plaintiff failed to produce a timely designation of expert. The trial court did not sanction the plaintiff but, rather, entered summary judgment due to a lack of evidence.

¶ 29. The majority declares that the plaintiffs’ conduct substantially prejudiced the defendants’ trial preparation. I am unable to find evidence of any such prejudice in the record.

¶ 30. The trial court could easily have ordered less-severe sanctions and accomplished the necessary purposes without a dismissal. In my view, it should have been done.

¶ 31. For these reasons, I respectfully dissent.

WALLER, P.J., JOINS THIS OPINION.

      . See Salts v. Gulf Nat’l Life Ins. Co., 743 So.2d 371 (Miss.1999), in which this Court reversed and remanded the trial court's order which changed venue to the Prentiss County Circuit Court.

      . For instance, the trial court could have ordered the plaintiffs to submit to a deposition, with plaintiffs’ counsel paying all costs including attorney fees.