author: PITTMAN, Chief Justice, McRAE, Presiding Justice,

text:
    LIBERTY MUTUAL INSURANCE COMPANY v. James McKNEELY.
    No. 1999-CT-01857-SCT.
    Supreme Court of Mississippi.
    Nov. 20, 2003.

      Lawrence D. Wade, Greenville, attorney for appellant.
    Paul Kelly Loyacono, Vicksburg, attorney for appellee.
   ON WRIT OF CERTIORARI

PITTMAN, Chief Justice,

for the Court.

¶ 1. James McKneely injured his back while working in Warren County in March of 1994. Anderson Tully, his employer, and Liberty Mutual Insurance Company, its workers’ compensation insurer, paid temporary total disability benefits for approximately six months. After receiving a report from McKneely’s treating physician who stated that McKneely had reached maximum medical recovery and that in the doctor’s opinion, the conditions McKneely was still suffering from were not causally related to his workplace injury, Liberty Mutual terminated the workers’ compensation benefits. McKneely eventually prevailed in his workers compensation claim and was awarded temporary total disability benefits through 1998.

¶ 2. McKneely filed a bad faith lawsuit against Liberty Mutual in 1996. He alleged that there was no arguable basis for Liberty Mutual’s decision to terminate benefits and to continue to deny payment until ordered to do so by the Mississippi Workers’ Compensation Commission. The case was tried without a jury by the Warren County Circuit Court. The trial court found for McKneely and awarded $150,000 in actual damages and $200,000 in punitive damages.

¶ 3. Liberty Mutual’s appeal was assigned to the Court of Appeals which affirmed by a vote of 7-3. Liberty Mut. Ins. Co. v. McKneely, No. 1999-CA-01857-COA (Miss.Ct.App. Apr. 17, 2001). Liberty Mutual filed a petition for writ of certio-rari which was granted by this Court.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 4. In May of 1994, James McKneely hurt his back while lifting and moving stacks of lumber at an Anderson Tully facility in Warren County. Except for a short period when he attempted to return to work, McKneely was temporarily and totally disabled from May until December of 1994. On December 20, 1994, Liberty Mutual and Anderson Tully determined that workers’ compensation benefits were no longer due, and workers’ compensation payments to McKneely were terminated the following month. The employer and the insurer based that decision primarily on the report of Dr. Wallace Weatherly, an orthopedic surgeon and McKneely’s primary physician. Dr. Weatherly had treated McKneely for several months and had ordered extensive tests including x-rays and an MRI which showed no musculoskel-etal injury. In November of 1994, Dr. Weatherly sent a report to the insurer in which he stated in relevant part:

Mr. McKneely’s current diagnosis, as far as I am concerned, is neck pain of unknown etiology. Mr. McKneely has been labeled with the diagnosis of fibro-myalgia by Dr. Hensarling.
Mr. McKneely is to follow up with Dr. Hensarling, as I have referred him to Dr. Hensarling.
I do not feel that Mr. McKneely’s current problem is related to his injury which was sustained after pulling heavy lumber. I, in no way, see a relationship between fibromyalgia and pulling of lumber.
Mr. McKneely will be treated by Dr. Hensarling but I suspect he will need some sort of work hardening program. He will need some psychiatric counseling to see if there is something going on that might be psychosomatic, as I cannot find anything organic wrong with him at this time.
As far as I am concerned, Mr. McKneely has reached maximum medical improved [sic] as far as any obvious organic musculoskeletal problem, but the inorganic problems may exist. Dr. Hensarling is to complete that workup so I will leave this statement for him to answer.

(emphasis added).

¶ 5. The insurer attempted to follow up with Dr. James Hensarling. A nurse investigator working for the insurer requested a status report from Dr. Hensarling. He instructed her to review his correspondence with Dr. Weatherly. In a letter to Dr. Weatherly dated October 24, 1994, Dr. Hensarling had stated that “I feel this patient has a florid case of fibromyalgia.” Significantly, Dr. Hensarling’s letter to Dr. Weatherly does not relate McKneely’s condition to any workplace injury. Fibro-myalgia is a musculoskeletal syndrome that causes pain in the connective tissues, muscles, joints, and ligaments, as well as an assortment of other symptoms such as sleep disorders, fatigue, and depression.

¶ 6. The insurer terminated McKneely’s payments in January of 1995. It based the decision primarily on Dr. Weatherly’s letter which it received in December. Eventually, the Administrative Judge and the Workers’ Compensation Commission awarded temporary total benefits to McKneely. McKneely then filed a bad faith lawsuit against both Liberty Mutual and Anderson. Tully. A bench trial was held in Warren County Circuit Court. Judge Vollor awarded McKneely $150,0000 in actual damages and $200,000 in punitive damages. The Mississippi Court of Appeals affirmed that decision, and the case is now before this Court on Liberty Mutual’s petition for writ of certiorari.

ANALYSIS

¶ 7. Liberty Mutual asserts that the decision of the Court of Appeals is contrary to prior decisions of this Court which deal with bad faith failure, to pay insurance claims and that the Court of Appeals decision misstates the evidence in several respects. Liberty Mutual claims that the judge, as the trier of fact, erred in finding that it acted in bad faith in terminating McKneely’s temporary disability payments. It maintains that the trial judge should have ruled for Tully and Liberty Mutual. It argues that the decision to terminate payments was supported by the available medical evidence and based on the advice of its attorney.

¶ 8. On appeal, the factual findings of a circuit judge sitting without a jury are treated like a chancellor’s findings and are given deferential review. Those findings are safe on appeal if they are supported by substantial, credible, and reasonable evidence. Maldonado v. Kelly, 768 So.2d 906, 908 (Miss.2000); City of Jackson v. Perry, 764 So.2d 373, 376 (Miss. 2000); Puckett v. Stuckey, 633 So.2d 978, 982 (Miss.1993). Those findings of fact will not be set aside on appeal unless manifestly wrong. Cotton v. McConnell, 435 So.2d 683, 685 (Miss.1983). In reviewing a trial judge’s decision not to direct a verdict for the appellant, this Court considers the eiddence produced at trial in the light most favorable to the appellee, giving the' appellee the benefit of all favorable inferences that may be reasonably drawn from the evidence. Miss. Power & Light Co. v. Cook, 832 So.2d 474, 478 (Miss.2002); General Motors Acceptance Corp. v. Baymon, 732 So.2d 262, 268 (Miss.1999).

¶ 9. Liberty Mutual claims that the trial judge erred in finding that the insurer had no arguable basis for terminating benefits. In order to prevail in a bad faith claim against an insurer, the plaintiff must show that the insurer lacked an arguable or legitimate basis for denying the claim, or that the insurer committed a wilful or malicious wrong, or acted with gross and reckless disregard for the insured’s rights. State Farm Mut. Auto. Ins. Co. v. Grimes, 722 So.2d 637, 641 (Miss.1998) (citing Life & Cas. Ins. Co. of Tennessee v. Bristow, 529 So.2d 620, 622 (Miss.1988)); Sessoms v. Allstate Ins. Co., 634 So.2d 516, 519 (Miss.1994); Mut. Life Ins. Co. v. Estate of Wesson, 517 So.2d 521, 527 (Miss.1987). The fact that an insurer’s decision to deny benefits may ultimately turn out to be incorrect does not in and of itself warrant an award of punitive damages if the decision was reached in good faith. Grimes, 722 So.2d at 641. Where an insurance carrier denies or delays payment of a valid claim, punitive damages will not lie if the carrier has a reasonable cause for such denial or delay. Estate of Wesson, 517 So.2d at 528.

¶ 10. In arguing that it had an arguable basis for stopping workers’ compensation payments, Liberty Mutual relies primarily on the diagnosis of Dr. Weatherly, an orthopedist who was McKneely’s primary treating physician. Dr. Weatherly had treated McKneely since the injury in March of 1994. McKneely had undergone extensive tests which revealed no musculo-skeletal injury, and he had been seen by a neurologist who found no neurological problem. Dr. Weatherly stated .by letter dated November 20, 1994, that McKneely had reached maximum medical improvement and that “I [Dr. Weatherly] do not feel that Mr. McKneely’s current problem is related to his injury which was sustained after pulling heavy lumber. I, in no way, see a relationship between fibromyalgia and pulling of lumber.”

¶ 11. McKneely argued that the letter was ambiguous in that Dr. Weatherly also stated that McKneely had been diagnosed with fibromyalgia and that he was still being treated by Dr. Hensarling for that condition. Dr. Weatherly’s letter also notes that McKneely might still be suffering from psychosomatic or inorganic problems although the doctor does not relate those possible conditions to the workplace injury.

¶ 12. McKneely alleged and the trial judge eventually found that Liberty Mutual did not have an arguable basis for denying his claim. McKneely’s primary contention was that the insurer did not properly investigate the case. When faced with a claim, an insurer is required to perform a prompt and adequate investigation of the circumstances surrounding the claim. Bankers Life & Cas. Co. v. Crenshaw, 483 So.2d 254, 276 (Miss.1985), aff'd on other grounds, 486 U.S. 71, 108 S.Ct. 1645, 100 L.Ed.2d 62 (1988). However, the plaintiffs burden in proving a claim for bad faith refusal goes beyond proving mere negligence in performing the investigation. The level of negligence in conducting the investigation must be such that a proper investigation by the insurer “would easily adduce evidence showing its defenses to be without merit.” Murphree v. Federal Ins. Co., 707 So.2d 523, 531 (Miss. 1997) (quoting Szumigala v. Nationwide Mut. Ins. Co., 853 F.2d 274, 280 (5th Cir. 1988)).

¶ 13. The Court of Appeals found that “McKneely established that ‘promptly’ and ‘adequately’ are two words which were totally ignored by Liberty Mutual.” Liberty Mut. Ins. Co. v. McKneely, ¶ 16. The trial court and the Court of Appeals found that Liberty Mutual’s failure to make further inquiry with Dr. Hensarling or another independent medical expert to establish that the fibromyalgia was not work related amounted to bad faith.

¶ 14. Liberty Mutual maintains that it did in fact adequately investigate this claim and that there was a sufficient arguable basis for denying continued benefits. We agree. Liberty Mutual did investigate this claim. It hired Jackie Moore, a registered nurse and rehabilitation consultant, to investigate the claim and to compile the medical records. In October of 1994, Moore wrote Dr. Weatherly and Dr. Hen-sarling and asked each doctor to state in writing McKneely’s current diagnosis and whether McKneely’s current problems related to his workplace injury. Dr. Weath-erly responded with the November 30, 1994, letter discussed above in which he stated that he saw no relationship between fibromyalgia and the workplace injury and that McKneely had reached maximum medical improvement. Dr. Hensarling did not directly respond to Moore’s inquiry but only referred her to his previous correspondence to Dr. Weatherly dated October 24, 1994, in which he stated that his diagnosis was that McKneely had a “florid case of fibromyalgia.” Notably, in that letter Dr. Hensarling does not relate the fibro-myalgia to the admitted workplace injury.

¶ 15. McKneely argues that it was incumbent upon Liberty Mutual to seek a more definitive diagnosis from Dr. Hensarling about whether the fibromyalgia was work-related. McKneely maintains that it would be unfair to require him to hire an expert to investigate the claim. In essence, the trial court and the Court of Appeals have placed the burden on the employer and the carrier to disprove any possibility that the claimant continued to suffer from a workplace disability. The insurer’s only obligation is to perform a prompt and adequate investigation of the claim and to deal with the claimant in good faith. The claimant carries the burden of proving the compensability of his injury by a preponderance of the evidence. Moeller v. Am. Guar. & Liab. Ins. Co., 707 So.2d 1062, 1073 (Miss.1996); Lanterman v. Roadway Exp., Inc., 608 So.2d 1340, 1347 (Miss.1992). Furthermore, in psychological injury cases (McKneely apparently thinks Liberty Mutual should have inferred the possibility of a psychological problem from Dr. Weatherly’s comment’s about psychosomatic injuries), the claimant’s burden is higher. The claimant in those situations must produce credible evidence proving the claim by clear and convincing evidence. Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss.1988). McKneely relies on Dr. Weatherly’s statement that there could be inorganic or psychosomatic problems which Dr. Weatherly felt he was unable to address. It was McKneely’s obligation to show the existence of any psychosomatic injuries and that the injury, whether psychological or not, was caused by his workplace accident. We note that it would not have been unduly burdensome for McKneely to ask Dr. Hensarling, his own physician, to provide a clear statement to the insurer indicating the doctor’s opinion that the fibromyalgia was related to the workplace injury. McKneely made no effort to do that. The result was.that the only doctor who had analyzed the relationship between the fi-bromyalgia and the back injury found that there was no causation.

¶ 16. The defendants are not required to disprove all possible allegations made by a claimant. They are simply required to perform a prompt and adequate investigation and make a reasonable, good faith decision based on that investigation. We find that, under the circumstances here, Liberty Mutual’s investigation was adequate and that there was an arguable basis for discontinuing benefits.

¶ 17. Additionally, Liberty Mutual argued at trial that the causation of fibro-myalgia was disputed by medical experts and that at that time there were no known cases in which the Mississippi Workers’ Compensation Commission had ordered compensation in a fibromyalgia case. Medical studies apparently still have not shown that fibromyalgia is caused by trauma such as the injury suffered by McKneely. See Gene Stephens Connolly, Hidden Illness, Chronic Pain: the Problems of Treatment and Recognition of Fi-bromyalgia in the Medical Community, 5 DePaul J. Health Care L. Ill (Summer 2002). Liberty Mutual questioned whether it was medically possible for the back injury to have caused McKneely’s fibro-myalgia. In Black v. Food Lion, Inc., 171 F.3d 308 (5th Cir.1999), the Fifth Circuit discussed several scientific studies which had found that there was insufficient evidence that trauma causes fibromyalgia. That court held that “neither [the plaintiffs doctor] nor medical science knows the exact process that results in fibromyalgia or the' factors that trigger the process. Absent these critical scientific predicates, for which there is no proof in the record, no scientifically reliable conclusion on causation can be drawn.” Id. at 814. The absence of any consensus among the medical authorities, at least at the time of the denial of the claim, that fibromyalgia could be caused by a traumatic event weighs against a finding of bad faith. We note that the question before the Court is not whether McKneely’s fibromyalgia was caused by his injury. That question was decided by the Commission and was not appealed. The question is whether Liberty Mutual had a good faith arguable basis for denying McKneely’s claim for benefits. We find that the medical questions surrounding the causation of fibromyalgia provided another arguable basis for the denial of further payment of this claim.

¶ 18. Finally, Liberty Mutual argued below that its reliance on the advice of its attorneys negated any possible finding of bad faith. During the workers’ compensation proceedings, Liberty Mutual’s lawyers reviewed the correspondence from Dr. Weatherly and determined that continued benefits were not warranted. The attorney also claimed that he knew of no other cases in which the Mississippi Workers’ Compensation Commission had awarded compensation in a fibromyalgia case. Liberty Mutual claims that it was entitled to rely in good faith on the attorney’s advice. Generally, a client’s reliance upon advice of his attorney prevents a finding of bad faith and the imposition of punitive damages. Murphree, 707 So.2d at 533 (citing Henderson v. United States Fid. & Guar. Co., 695 F.2d 109, 113 (5th Cir.1983)). As the attorney’s advice was apparently almost entirely based on Dr. Weatherly’s letter as outlined above, the analysis is similar to the analysis above. We find that Liberty Mutual was entitled to rely on the attorney’s reasonable interpretation of Dr. Weatherly’s statement that McKneely’s fibromyalgia was not related to his workplace injury.

¶ 19. Liberty Mutual also maintains that McKneely’s action for bad faith refusal to pay insurance benefits should fail because he had an adequate remedy under Miss.Code Ann. § 71 — 3—17(b) (Rev. 2000) and that McKneely should have been required to exhaust that procedure. That section provides:

if there arises a conflict in medical opinions of whether or not the claimant has reached maximum medical recovery and the claimant’s benefits have terminated by the carrier, then the claimant may demand an immediate hearing before the commissioner upon five (5) days’ notice to the carrier for a determination by the commission of whether or not in fact the claimant has reached maximum recovery.

At trial, McKneely claimed damages resulting from emotional and mental distress. He claimed that after his benefits were terminated, he was financially unable to care for himself and his children and that he was humiliated in having to receive monetary assistance from friends and family. The employer and carrier argued on appeal that McKneely could have pursued immediate continuation of his temporary disability benefits but chose not to. McKneely’s attorney in fact filed a petition under the statute for continued benefits after termination in January of 1995. The hearing was set for February 13, 1995, but apparently was continued at the request of counsel for the claimant who had another engagement that day. It was never rescheduled.

¶ 20. The dissent to the Court of Appeals opinion in this matter would have found that:

The trial court based its award of substantial damages on a finding that McKneely ‘was financially destitute, living on charity and welfare from termination on December 20, 1994, until benefits were reinstated on April 9, 1997.’ Remarkably absent from the court’s findings was any discussion of the fact that, during that entire period, McKneely had a completely adequate remedy'— which he commenced in early 1995 then inexplicably abandoned — to seek to have his temporary total disability payments reinstated, the only prerequisite being that he have sufficient proof to persuade the Commission of his entitlement to the benefits. That failure to pursue such a readily-available remedy for a perceived wrong is inexcusable and a sufficient basis, standing alone, to deny this bad faith claim.

Liberty Mut Ins. Co. v. McKneely, ¶ 41 (McMillin, C.J., dissenting).

¶ 21. Workers’ compensation is the employee’s exclusive remedy under Miss. Code Ann. § 71-3-9 (Rev.2000). However, there is an exception to exclusivity for situations in which the employer or the employer’s insurer fail to pay benefits in bad faith. Miss. Power & Light Co. v. Cook, 832 So.2d at 479. We have never held that a claimant must exercise his rights under the emergency hearing provision under Section 71 — 3—17(b). Here, McKneely was eventually awarded benefits by the Commission. We find that the failure to seek emergency benefits weighs on McKneely’s claims for emotional and mental distress damages. McKneely could have sought to mitigate his financial problems by seeking an immediate hearing. However, we find that the failure to pursue an immediate remedy under -the statute does not bar a subsequent bad faith claim. McKneely had exhausted his workers’ compensation procedure when he received a favorable decision from the Commission which the insurer and the employer chose not to appeal.

CONCLUSION

¶ 22. Because the findings of the Warren County Circuit Court are clearly erroneous, we reverse the judgments of both it and the Court of Appeals and render judgment in favor of Liberty Mutual Insurance Company. In employing an investigative nurse who compiled McKneely’s medical records and sought a definitive diagnosis from his treating physicians, Liberty Mutual and Anderson Tully performed an adequate investigation of McKneely’s claim for benefits. The investigation revealed that the employer and its insurer had a good faith basis for discontinuing McKneely’s benefits. Prior to the termination of benefits, McKneely’s treating physician had stated his opinion that McKneely’s fibromyalgia was not related to the workplace injury. While the claimant continued to suffer from possible psychosomatic or organic problems, nothing in the medical records at the time of termination of benefits related those conditions to the workplace injury. Liberty Mutual was entitled to rely on Dr. Weatherly’s report in deciding to terminate the claimant’s benefits.

¶ 23. REVERSED AND RENDERED.

SMITH, P.J., WALLER, COBB AND CARLSON, JJ„ CONCUR. EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY EASLEY, J. DIAZ, J., NOT PARTICIPATING.

McRAE, Presiding Justice,

Dissenting.

¶ 24. The majority erroneously finds that the claims against Liberty Mutual for bad faith denial of workers’ compensation benefits are without merit and must fail because that finding is not supported by the law or evidence. The majority “skirts around” the fact that on appeal the findings of a circuit court judge, sitting without a jury, will not be overturned unless manifestly wrong and not supported by substantial, credible evidence. Maldonado v. Kelly, 768 So.2d 906, 908 (Miss.2000); Cotton v. McConnell, 435 So.2d 683, 685 (Miss.1983). The circuit court’s findings are not manifestly wrong and are supported by substantial, credible evidence. The judgment of the Court of Appeals should be affirmed as it accurately states the law and facts which support a finding that indeed Liberty Mutual did deny workers’ compensation benefits to McKneely in bad faith. For these reasons, I dissent.

¶ 25. The majority opines that a bad faith action against a workers’ compensation insurer may not lie unless the claimant proves that the injuries for which he was denied. benefits were in fact work-related injuries. That determination has already been made in the affirmative, despite the majority’s attempt to justify the uncertainty that fibromyalgia is caused by a physical muscle injury. The Workers’ Compensation Commission has already determined that such benefits were owing to McKneely, and its findings were never appealed by Liberty Mutual. However, the applicable law regarding bad faith actions is not premised on the proof and procedures required for the attainment of workers’ compensation benefits, but rather upon the duty of an “insurance company to promptly and adequately investigate all of the relevant facts involved in an insured’s claim” before denying the requested benefits. Szumigala v. Nationwide Mut. Ins. Co., 853 F.2d 274, 280 (5th Cir.1988). See also Bankers Life & Cas. Co. v. Crenshaw, 483 So.2d 254, 276 (Miss.1985), aff'd on other grounds, 486 U.S. 71, 108 S.Ct. 1645, 100 L.Ed.2d 62 (1988). As stated by the Court of Appeals, “[i]n order for McKneely to meet his burden of proving a bad faith claim he must show that the level of negligence was such that if a proper investigation had been conducted, it would easily reveal evidence that demonstrated that Liberty Mutual’s defenses are without merit.” Liberty Mut. Ins. Co. v. McKneely, No. 1999-CA-01857-COA ¶ 16 (Miss. Ct.App. Apr. 17, 2001) (citing Murphree v. Federal Ins. Co., 707 So.2d 523, 531 (Miss. 1997)). See also Bankers Life & Cas., 483 So.2d at 276. The majority applies the wrong standard and simply finds- that McKneely must prove he was eligible for benefits. However, as already stated this was answered in the affirmative by the Workers’ Compensation Commission and never was appealed by Liberty Mutual. Thus, such benefits were “improperly” denied. The standard regarding “bad faith” denial of benefits does not address whether the denial was “proper,” but rather whether the insurance company conducted a “prompt” and “adequate” investigation before denying benefits.

¶ 26. Looking to the facts presented, not only was McKneely entitled to the benefits as already adjudicated by the Workers’ Compensation Commission, but Liberty Mutual failed to conduct any investigation before denying him benefits. It denied benefits after simply looking at the language of one physician’s letter and not even the physician treating McKneely’s fibromyalgia. Liberty Mutual’s entire defense centers around “excerpts” from the letter of Dr. Weatherly to Liberty Mutual regarding the condition and treatment of McKneely. Dr. Weatherly was not even McKneely’s treating physician regarding the fibromyalgia. Furthermore, Liberty Mutual fails to account for the full language of the letter which immediately put Liberty Mutual on notice that further investigation was necessary. Liberty Mutual merely suggests that “excerpts” contained in the letter support its denial of benefits and that, therefore, no- further investigation or inquiry was necessary.

¶ 27. The portions of the letter which obviously put Liberty Mutual on notice that further inquiry was needed include the following statements:

Mr[.] McKneely had been labeled with the diagnosis of fibromyalgia by Dr. Hensarling. Mr. McKneely is to follow up with Dr. Hensarling as I have referred him to Dr. Hensarling.... Mr. McKneely will be treated by Dr. Hen-sarling. ... Dr. Hensarling is to complete the workup so I will leave this statement for him to answer.

These statements made by Dr. Weatherly were not considered by Liberty Mutual when making its decision to terminate benefits. In fact, Liberty Mutual did not even contact Dr. Hensarling to inquire' as to what course of treatment he had prescribed McKneely or what exact diagnosis he had determined. Liberty Mutual did not contact Dr. Hensarling at all. Clearly, the words employed in Dr. Weatherly’s letter put Liberty Mutual on notice that further inquiry was necessary. As found by the Court of Appeals, there can be little doubt that Liberty Mutual did not investigate “promptly” or “adequately.” Liberty Mut. Ins. Co., ¶ 16.

¶28. Both the majority and Liberty Mutual misconstrue the burden of proof required to prove bad faith denial of payment of insurance benefits. Both suggest that Liberty Mutual was not required to “investigate” to the extent of proving McKneely’s case for him. The problem with this analysis is that it ignores the applicable standard and burden for bad faith claims. The standard for bad faith claims which requires “prompt and adequate” investigation does not suggest that Liberty Mutual should prove McKneely’s workers’ compensation case for him. Instead, it requires Liberty Mutual to investigate before denying benefits. This case would be an entirely different story if before denying benefits Liberty Mutual had contacted Dr. Hensarling and made inquiry into his diagnosis, the factual and medical reasoning to support such a diagnosis, and prescribed treatment.

¶ 29. Also misleading is Liberty Mutual and the majority’s attempts to characterize the fibromyalgia diagnosis as “conflicting” and “unsubstantiated” in the medical community. Regardless of the medical community’s views regarding whether fibro-myalgia may be associated with physical work-related injuries, at the time Liberty Mutual denied McKneely benefits there was no “conflicting” medical testimony or evidence. Indeed, the only evidence presented was from Dr. Weatherly’s report. Dr. Hensarling’s opinions and diagnosis were not even requested for review. There was no conflicting evidence at all— only “excerpts” of Dr. Weatherly’s report were relied upon by Liberty Mutual for its denial of benefits. The fact that the medical community may disagree about whether fibromyalgia can be caused and related to physical employment injuries is irrelevant. No such testimony was presented at the time of Liberty Mutual’s denial of benefits or at trial. In fact, the only medical evidence presented at trial, besides Dr. Weatherly’s and Dr. Hensarling’s opinions, was the opinion and diagnosis of Dr. Meyers who concurred with Dr. Hensarling as to the fibromyalgia diagnosis and treatment. Thus, the Fifth Circuit’s review in Black v. Food Lion, Inc., 171 F.3d 308 (5th Cir.1999), of the medical community’s split on the diagnosis of fibromyalgia from work-related injuries is not relevant here. That information was not before Liberty Mutual as evidence before its denial of benefits and was not presented at trial. This Court cannot as an afterthought justify Liberty Mutual’s actions by “digging up” dicta concerning the medical community’s conflicting opinions about fibromyal-gia.

¶30. The circuit court judge, sitting without a jury, weighed the facts presented and applied the correct law. His findings should not be overturned. Thus, I would affirm the Court of Appeals’ judgment affirming the circuit court’s judgment in favor of McKneely. For the above-stated reasons, I dissent.

EASLEY, J., JOINS THIS OPINION.


source: Caselaw Access Project

author: IRVING, J., CHANDLER, J.,

license: Public Domain

text:
    Martin G. CAMACHO, Appellant, v. CHANDELEUR HOMES, INC. and MHP Properties, LLC d/b/a Mid South Land-Home Center, Appellees.
    No. 2002-CP-00737-COA.
    Court of Appeals of Mississippi.
    Aug. 26, 2003.
    Rehearing Denied Jan. 6, 2004.

      Martin G. Camacho (Pro Se), attorney for appellant.
    David Lee Robinson, Ashland, William F. Schneller, Holly Springs, Allison Farese Thomas, attorneys for appellee.
    Before McMILLIN, C.J., LEE and IRVING, JJ.
   IRVING, J.,

for the Court.

¶ 1. Martin G. Camacho appeals from an order of the Marshall County Circuit Court which dismissed his case with prejudice due to his failure to prosecute his claims against co-defendants, Chandeleur Homes, Inc. and MHP Properties, LLC, d/b/a Mid South Land-Home Center. Camacho, in a pro se brief, argues that the dismissal of his suit was erroneous because he has a valid claim against the defendants.

¶ 2. This Court agrees that the trial court erred in dismissing Camacho’s lawsuit; therefore, we reverse and remand for proceedings consistent with this opinion.

FACTS

¶ 3. Martin G. Camacho filed suit in the Circuit Court of Marshall County against Chandeleur Homes on October 18, 2000. Camacho complained that he had experienced numerous problems with á mobile home which he purchased on October 22, 1999, from MHP Properties, LLC, d/b/a/ Mid South Land-Home Center (MHP). He stated that the home was delivered on or about October 24, 2000. The mobile home was manufactured by Chandeleur Homes. Camacho claimed that he and his family had been forced to live in the mobile home without proper heating and air conditioning, dangerously defective electrical outlets, a leaking roof, sinking floors, defective framing and various other defects. Camacho asserted that he informed Chandeleur Homes of the numerous problems that he was experiencing with the mobile home and requested repair and/or replacement of various components but that Chandeleur Homes and MHP failed or refused to comply with his numerous requests.

¶ 4. On December 14, 2000, Camacho’s attorney filed a motion to withdraw as counsel, and on December 18, 2000, the attorney presented to the trial court an agreed order, signed by Camacho, allowing such withdrawal. The agreed order gave Camacho thirty days to retain new counsel. The trial court also ordered that if Camacho had not obtained an attorney who had filed an entry of appearance on or before the 17th of January 2001, the trial court would set the matter for a show cause hearing to determine why the suit should not be dismissed. The show cause hearing was set for February 7, 2001, in Ripley, Mississippi. There was some apparent confusion about whether Camacho appeared at this show cause hearing, and consequently, it was reset for May 81, 2001.

¶ 5. At the May 31, 2001 hearing, Camacho appeared with his wife Kathy. Kathy explained that Camacho spoke very little English; thus, she would speak on his behalf. Kathy informed the trial judge that Camacho had retained a second attorney and had a money order receipt to prove it. Kathy also explained that she informed the new attorney that he did not need to appear at the hearing (the show cause hearing) because “we [she and Camacho] could just come in and let everybody know” that he was employed.

¶ 6. At the conclusion of the hearing, the trial court entered an order dismissing the case with prejudice. Shortly after the dismissal, Camacho, on June 6, 2001, retained a third attorney. This attorney filed a motion to reconsider the dismissal. After a hearing on the motion, the trial judge issued an order affirming the previous dismissal. Feeling aggrieved by the affirmation of the dismissal, Camacho filed this appeal pro se.

¶ 7. Additional pertinent facts will be related during the discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 8. “For the failure of [a] plaintiff to prosecute or to comply with [the rules of civil procedure] or any order of [a trial] court, a defendant may move for dismissal of an action or of any claim against him.” M.R.C.P. 41(b). It has been well established that an appellate court’s review of a dismissal under Rule 41(b) is to determine if the trial court abused its discretion. Miss. Dept. of Human Servs. v. Guidry, 830 So.2d 628, 632(¶ 13) (Miss.2002).

¶ 9. A trial court possesses the inherent authority to dismiss an action for want of prosecution. Am. Tel. & Tel. Co. v. Days Inn of Winona, 720 So.2d 178, 180(¶ 11) (Miss.1998). “This power ‘is a necessary means to the orderly expedition of justice and the trial court’s control of its own docket.’ ” Id. (quoting Watson v. Lillard, 493 So.2d 1277, 1278 (Miss.1986.)) Yet, Mississippi case law favors a trial of issues on the merits; dismissals under Rule 41(b) should be executed reluctantly. Hoffman v. Paracelsus Health Care, 752 So.2d 1030, 1034(¶ 11) (Miss.1999). This Court is cognizant of the fact that a dismissal with prejudice is an extreme and harsh sanction that deprives Camacho of the opportunity to pursue his claim, and any dismissal with prejudice is reserved for the most egregious case. Id.

¶ 10. We begin our review with a discussion of the criteria that must be applied in determining whether the trial judge abused his discretion. In Mississippi, there is no set time limit on the prosecution of an action once a complaint has been filed. Tims v. City of Jackson, 823 So.2d 602, 604(¶ 5) (Miss.Ct.App.2002). The Mississippi Supreme Court has declared that “rule 41(b) dismissals with prejudice will be affirmed only upon a showing of a clear record of delay or contumacious conduct by the plaintiff and where lesser sanctions [will] not serve the best interests of justice.” Am. Tel. & Tel. Co., 720 So.2d at 181(¶ 13). The American Telephone & Telegraph Company court further established that:

While the requirements of a clear record of delay by the plaintiff and futile lesser sanctions have been articulated the most consistently, several other factors have been identified as “aggravating factors.” Specifically, these include the “extent to which the plaintiff, as distinguished from his counsel, was personally responsible for the delay, the degree of actual prejudice to the defendant, and whether the delay was the result of intentional conduct.”

Id. (citations omitted).

¶ 11. Following these standards, the first question for this Court is whether the conduct of Camacho can be said to clearly constitute dilatory or contumacious conduct. Lone Star Casino Corp. v. Full House Resorts, Inc., 796 So.2d 1031, 1032(¶ 2) (Miss.Ct.App.2001). Camacho filed his complaint on October 18, 2000. The record indicates that shortly after Chandeleur Homes and MHP filed their separate answers to the complaint, Camacho’s attorney filed a motion to withdraw as counsel. An agreed order was entered on December 18, 2000, allowing the attorney’s withdrawal. The order also mandated that Camacho obtain new counsel within thirty days. Most importantly, the trial judge ordered that if Camacho had not obtained a new attorney who had filed an entry of appearance on or before January 17, 2001, the court would set a show cause hearing to decide why the suit should not be dismissed. Apparently, Camacho failed to retain an attorney because on January 23, 2001, the trial judge, upon Chandeleur Homes’s ore tenus motion to dismiss, set the promised show cause hearing.

¶ 12. The following colloquy occurred at the show cause hearing:

THE COURT: Now, Ms. Camacho is present. Her husband, Mr. Camacho, the Plaintiff, is present and informed the Court that they have employed one Chris Evans who is an attorney in Tupelo, Mississippi. She advises me that Mr. Evans knew about the hearing, was acquainted that it was set for date, time, place, and the Court has had Mr. — courtroom—has had the bailiff, courtroom bailiff to check the courtroom, and Mr. Evans is not present. Ms. Camacho, who is speaking for her husband, advised the Court that she informed Mr. Evans that he did not need to be present, that they would inform the Court that he was employed. Have I misstated anything now?
Ms. Camacho: No, sir.
* sH * *
THE COURT: Okay. The Motion to Dismiss, the Court doesn’t have any other alternative but to dismiss the matter, and I want to be certain that — I’m going to set the matter down ... Anything further? This matter is adjourned. This matter is adjourned. Thank you. You are excused.
Ms. Camacho: The case is dismissed?
THE COURT: Pardon? Ma’am?
Ms. Camacho: The case is dismissed?
THE COURT: Yes, ma’am.
Ms. Camacho: So, I have to file an appeal?
THE COURT: Yes, ma’am. You talk to Mr. Evans or whoever you want to employ. Yes, ma’am.
Ms. Camacho: Okay.

¶ 13. At the conclusion of the hearing, the trial judge found that: Camacho had failed to obtain an attorney in a timely manner and that there was no good cause for such failure. Therefore, the court granted the motion to dismiss with prejudice.

¶ 14. As we have already observed, Camacho retained a new attorney who filed a motion to reconsider or, in the alternative, to alter or amend the judgment dismissing Camacho’s case. At the hearing on this motion, Camacho’s attorney argued that, at the May hearing, Kathy was not allowed to argue her husband’s side. She was not allowed to speak and give reasons for Camacho’s failure to obtain counsel. The attorney maintained that Camacho, due to financial reasons, simply could not afford to hire an attorney within the court’s imposed time limit. He explained that Camacho had taken preliminary steps to hire an attorney from Tupelo. The attorney argued that the attorney had reviewed the files regarding Camacho’s case and was just waiting on the fee to be paid.

¶ 15. Chandeleur Homes and MHP argue here, as they did in the trial court, that Camacho’s failure to obtain a new attorney was wilful and amoúnted to contumacious conduct. They point out that the trial court ordered Camacho to obtain an attorney within thirty days from the date of his first attorney’s withdrawal and that Camacho had actual, as well as constructive, notice that unless an attorney made an appearance on his behalf, the trial court would consider dismissing the suit. Chandeleur Homes and MHP further allege that Camacho made a blatant misrepresentation to the trial judge at the show cause hearing that he had hired an attorney from Tupelo when he, in fact, had not done so.

¶ 16. We have thoroughly reviewed the record and find that, for at least two reasons, the trial judge erred and abused his discretion in dismissing Camacho’s lawsuit. Firstly, there is no requirement that a party must be represented by an attorney. Therefore, dismissing a party’s lawsuit simply because that party has not acquired an attorney is clearly an abuse of discretion.

¶ 17. Secondly, the period of delay (five months) in acquiring counsel was relatively short. This Court has previously reversed dismissals when the cause for delay stemmed partially from difficulty in retaining counsel. Lone Star Casino Corp., 796 So.2d at 1033(¶ 3). In Lone Star Casino Corp., the appellant presented affidavits detailing its efforts to secure an attorney. This Court emphasized the fact that the delay of twenty months to secure counsel was not egregious:

Lone Star provided evidence that its search for counsel was the cause of the delay. Proof was presented that a number of the attorneys Lone Star contacted about representation took up to three weeks to give Lone Star a decision then simply refused to represent Lone Star, while others spent weeks considering whether to represent Lone Star only to end up referring Lone Star on to some other attorney. A delay of twenty months, although lengthy, is not so egregious as to result in a dismissal of the case at bar. Since there is no clear record of dilatory or contumacious conduct and no findings of prejudice, we see no reason why Full House cannot proceed to trial on the merits of this case.

Id. at 1033(116) (emphasis added). Similarly, we also find in the present case that the five-month delay in securing an attorney was not egregious. Moreover, Chan-deleur Homes and MHP do not argue that they suffered any prejudice as a result of the five-month delay, and the trial judge made no such finding.

¶ 18. Based on the record before us, we find that there is no clear indication of delay or contumacious conduct on the part of Camacho, and even if there were, the record is clear that the trial judge did not consider other less severe sanctions. Neither did he make a finding that lesser sanctions would not have served the ends of justice. An appellate court is less likely to uphold a Rule 41(b) dismissal when the trial court has not considered alternative sanctions. Hoffman, 752 So.2d at 1035(¶ 16). We find no aggravating factors, attributable to Camacho, which would justify the drastic action taken by the trial judge, nor do we find that Chandeleur Homes or MHP would be prejudiced in their defense of this matter by allowing Camacho to proceed with his lawsuit. Therefore, we reverse the judgment of the trial court and remand this case to the Circuit Court of Marshall County for further proceedings consistent with this opinion.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF MARSHALL COUNTY IS REVERSED AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., THOMAS, LEE, AND GRIFFIS, JJ., CONCUR. CHANDLER, J., DISSENTS WITH SEPARATE OPINION JOINED BY BRIDGES AND MYERS, JJ.

CHANDLER, J.,

dissenting.

¶ 20. I respectfully dissent. The plaintiff in this case employed an attorney who filed a complaint against the two named defendants on October 18, 2000. Shortly thereafter, the attorney filed a motion to withdraw which the trial judge granted.' Following the termination of his attorney, the plaintiff took no action to prosecute his claims. The defendants filed a motion to dismiss for failure to prosecute the case and a hearing was set for February 7, 2001. Neither the plaintiff nor anyone in his behalf appeared at the hearing. Due to the plaintiffs absence, the hearing was rescheduled for May 31, 2001. The plaintiff made a pro se appearance at this hearing.

¶21. At the hearing the trial judge carefully questioned the plaintiff as to whether there was any justification for the failure to employ counsel and properly prosecute his claims in a timely fashion. The trial judge found that the plaintiff failed to show good cause and dismissed the case with prejudice.

¶ 22. The plaintiff, through a newly obtained attorney, filed a motion to reconsider and the trial judge heard argument on the motion in October 2001. The attorneys representing all parties offered extensive argument as to whether the plaintiffs slowness in prosecuting his claims rose to the level of contumacious conduct and whether such conduct could be corrected with sanctions less severe than dismissal of the case. The defendants also argued that the spoliation of evidence was a factor which would unduly prejudice their defense of the claims based on the deterioration of the mobile home in question since the inception of the initial complaint.

¶ 23. After the hearing, the judge took the case under advisement prior to ordering a dismissal of the claims with prejudice. I believe the record establishes that the trial judge was acting within his discretion and would affirm his decision.

BRIDGES AND MYERS, JJ., JOIN THIS SEPARATE WRITTEN OPINION.

      . The date of delivery seems to be a typographical error because the complaint was filed on October 18, 2000, which is before the date of delivery alleged in the complaint. -

      . MHP contends that it did attempt to make repairs but that Camacho would not allow it inside the mobile home to do so.


author: GRIFFIS, J.,

text:
    Bonnie HARVEY, Appellant, v. STONE COUNTY SCHOOL DISTRICT, Appellee.
    No. 2002-CA-01777-COA.
    Court of Appeals of Mississippi.
    Oct. 14, 2003.
    Rehearing Denied Jan. 6, 2004.

      Bonnie Harvey, Appellant, pro se.
    Walter William Dukes, Gulfport, Trace D. McRaney, attorneys for appellee.
    Before McMILLIN, C.J., MYERS and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

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

FACTS

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

a. On May 4, 2001, the District served Harvey’s counsel its answer and affirmative defenses and discovery requests, including interrogatories and requests for production of documents.
b. On June 14, 2001, the District sent Harvey’s counsel a good faith letter, in accordance with the rules, requesting a response to the discovery requests.
c. On August 17, 2001, Harvey’s counsel filed a motion to withdraw.
d. On February 27, 2002, the circuit court entered an order allowing Harvey’s counsel to withdraw and granted Harvey thirty days to engage new counsel.
e. On April 2, 2002, Harvey filed a motion for enlargement of time to appoint substitute counsel.
f. On May 3, 2002, the circuit court entered an order allowing Harvey until June 15, 2002, to have substitute counsel enter an appearance.
g. On June 18, 2002, Harvey, now over the age of eighteen, filed an entry of appearance where she stated her intention to proceed pro se.
h. On June 19, 2002, the District sent Harvey another good faith letter asking that she provide her discovery responses on or before June 29, 2002.
i. On July 3, 2002, the District filed a motion to compel and noticed a hearing on the motion for July 15, 2002.
j. Harvey failed to appear at the July 15th hearing. The Honorable Jerry Terry, circuit judge, entered an order compelling Harvey to provide her discovery responses within fourteen days, “failing which her claim faces dismissal.”
k. On July 31, 2002, the District received Harvey’s discovery responses. The material received included answers to interrogatories and copies of documents such as Harvey’s medical bills. The envelope was postmarked July 30, 2002.
l. On August 7, 2002, the District filed a motion to dismiss pursuant to Mississippi Rules of Civil Procedure 37 and 41. The District noticed the hearing without a date certain. Accordingly, there is no record that an actual hearing on the motion was ever noticed or held.
m. An order granting the motion to dismiss, entered by the Honorable Stephen Simpson, circuit judge, was filed on September 24, 2002.
n. A final judgment dismissing the claim with prejudice was entered on September 10, 2003, and filed on September 24, 2003.

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

ANALYSIS

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

[i]f a party ... fails to obey an order to provide or permit discovery ..., the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(B) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;
(C) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
(D) in lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders.
In lieu of any of the foregoing orders or in addition, thereto, the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

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

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

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

The decision to impose sanctions for discovery abuse is vested in the trial court’s discretion. White v. White, 509 So.2d 205, 207 (Miss.1987). The provisions for imposing sanctions are designed to give the court great latitude. Id. at 207. The power to dismiss is inherent in any court of law or equity, being a means necessary to orderly expedition of justice and the court’s control of its own docket. Palmer v. Biloxi Regional Medical Center, 564 So.2d 1346, 1367 (Miss.1990). Nevertheless, the trial court should dismiss a cause of action for failure to comply with discovery only under the most extreme circumstances. Hapgood v. Biloxi Regional Medical Center, 540 So.2d 630, 634 (Miss.1989); White, 509 So.2d at 209.

Pierce, 688 So.2d at 1388. Pierce’s case was dismissed because the court found that she “consistently obstructed the progress of the litigation by filing admittedly false responses to various discovery requests and by swearing to false testimony in depositions.” Id. at 1390.

¶ 8. The Mississippi Supreme Court has held that “[t]he power to dismiss for failure to prosecute is inherent in any court of law or equity, being a means necessary to the orderly expedition of justice and the court’s control of its own docket.” Watson v. Lillard, 493 So.2d 1277, 1278 (Miss.1986) (citation omitted). However, the supreme court also held that:

The law favors trial of issues on the merits, and dismissals for want of prosecution are therefore employed reluctantly. There is no set time limit for the prosecution of an action once it has been filed, but where the record shows that a plaintiff has been guilty of dilatory or contumacious conduct, or has repeatedly disregarded the procedural directives of the court, such a dismissal is likely to be upheld.

Watson, 493 So.2d at 1279 (citations omitted). Dismissal with prejudice is an extreme and harsh sanction that deprives a litigant of the opportunity to pursue his or her claim, and is reserved for the most egregious cases, usually where clear delay and ineffective lesser sanctions are present. Am. Tel. and Tel. Co. v. Days Inn of Winona, 720 So.2d 178, 180-81 (¶ 12) (Miss.1998). We must consider the extent to which the plaintiff, as distinguished from her counsel, was personally responsible for the delay. Id.

¶ 9. The court’s dismissal occurred while Harvey was representing herself. The supreme court has held that “[p]ro se parties should be held to the same rules of procedure and substantive law as represented parties.” Dethlefs v. Beau Maison Dev. Corp., 511 So.2d 112, 118 (Miss.1987). However, the supreme court has also held that we will “credit not so well pleaded allegations so that a [pro se] prisoner’s meritorious complaint may not be lost because inartfully drafted.” Ivy v. Merchant, 666 So.2d 445, 449 (Miss.1995). Our courts will also allow the same deference to pro se litigants in civil actions. Zimmerman v. Three Rivers Planning and Dev. Dist., 747 So.2d 853, 856 (¶ 6) (Miss. Ct.App.1999).

¶ 10. Here, there is no allegation that Harvey lied or committed any willful violation of the discovery rules. Cf. Pierce, 688 So.2d at 1390. Instead, our review of the circuit court’s dismissal is based on whether Harvey disobeyed the order compelling discovery, whether her conduct was sufficient to constitute dilatory or contumacious conduct, or whether she repeatedly disregarded the procedural directives of the court. Watson, 493 So.2d at 1279.

¶ 11. We will consider these in a different order than stated above. First, we will consider whether Harvey repeatedly disregarded the procedural directives of the court. The record indicates that there was but one order entered compelling discovery, and it was the July 15th order. When the court entered the order dismissing the case, Harvey had' attempted to comply with the order and had produced discovery. The District argues that Harvey did not provide a written response to the request for production of documents, she failed to submit sworn interrogatory answers, and she failed to set forth the text of the interrogatory before her answers. These “violations” do not support a finding that Harvey “repeatedly” disregarded the procedural directives of the court.

¶ 12. Next, we will consider whether Harvey disobeyed the court’s order compelling discovery. The District contends, in addition to the arguments made in the preceding paragraph, that Harvey failed to comply with the court’s July 15th order to provide discovery responses within fourteen days, by July 29, 2002. The District admits that Harvey submitted discovery responses, which its attorneys received by July 31st, but contend that Harvey failed to comply with the order because her envelope was postmarked July 30th. In essence, the District asks for dismissal because a pro se plaintiff was arguably one day late in filing discovery responses.

¶ 13. There is no evidence in the record as to when Harvey actually mailed the envelope. It is possible that the envelope was deposited in a mailbox on the 29th, but not postmarked until the 30th. Rule 5(b) provides that “[sjervice by mail is complete upon mailing.” The postmark date does not determine the date of service. Furthermore, if the postmark date did determine the date of service, being one day late in service of discovery responses cannot be deemed a sufficient violation of the Rules to warrant dismissal with prejudice.

¶ 14. The District also argues that Harvey disobeyed the court’s order because she did not provide a written response to the request for production of documents, she failed to submit sworn interrogatory answers, and she failed to set forth the text of the interrogatory before her answers. The District does not argue that prejudice resulted. Certainly, the District was not prejudiced because Harvey’s discovery response was postmarked one day after the deadline imposed in the court’s July 15th order. Likewise, since the District received documents from Harvey, it is difficult to argue that not receiving a written response to the request for production of documents, from a pro se litigant, could possibly cause prejudice. Likewise, the fact that Harvey prepared, signed and filed her own interrogatory answers could not create any prejudice simply because the answers were not sworn. The assertion that a dismissal is warranted because a pro se plaintiff violated Uniform Circuit and County Court Rule 4.04(B) by failing to set forth the text of the interrogatory before her answers simply lacks merit. Considering that Harvey acted pro se, these violations cannot be deemed sufficient to warrant dismissal with prejudice.

¶ 15. Finally, we consider whether the record demonstrates that Harvey was dilatory and contumacious. As discussed above, Harvey did violate several discovery rules. However, we found that none of these violations was sufficient to warrant dismissal. The clear language of Rule 37(b)(2) gives the trial court several options to handle a litigant that does not cooperate in discovery. Watson and Days Inn of Winona require the trial court to consider other alternatives before summarily dismissing a case, thereby depriving a litigant of his rights. Indeed, in Pierce, where the court upheld the dismissal with prejudice because of discovery violations, the supreme court agreed that dismissal was appropriate only after it considered and accepted the trial judge’s determination that alternative sanctions would not have been appropriate. Pierce, 688 So.2d at 1388. There was no such consideration here.

¶ 16. This Court is less likely to uphold a Rule 41(b) dismissal when the lower court does not consider alternative sanctions. Hoffman v. Paracelsus Health Care Corp., 752 So.2d 1030 (¶16) (Miss. 1999). The trial court has the option to assess fines, costs, damages, conditional dismissal, dismissals without prejudice, and/or warnings. Wallace v. Jones, 572 So.2d 371, 377 (Miss.1990). Here, the trial judge made no effort to entertain appropriate alternative sanctions. The trial judge failed to even consider that Harvey had attempted to comply with the court’s order by providing answers to interrogatories and by producing documents. Indeed, when the motion to dismiss was filed, Harvey was not in contempt of the court’s order. Harvey had in fact served discovery responses and documents on the District. The appropriate remedy should have been a motion to strike or a motion to compel more complete answers. No alternatives were considered.

¶ 17. In McFadden v. State, 580 So.2d 1210, 1214 (Miss.1991) (quoting Haines v. Kerner, 404 U.S. 519, 529, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)), the supreme court recognized that pleadings filed by pro se litigants are to be held “to less stringent standards than formal pleadings drafted by lawyers.” In this appeal, the District seeks to hold Harvey, a pro se litigant, to a higher standard that trial courts would typically hold litigants represented by counsel.

¶ 18. Alternative sanctions were available to the trial judge, and such options should have been considered or attempted before the court dismissed a pro se litigant’s claim with prejudice. The circumstances presented in this case simply did not warrant such an extreme and harsh remedy as a dismissal with prejudice. For all of the reasons set forth herein, we find that the ruling of the lower court was an abuse of discretion. Therefore, we reverse and remand this case for further proceedings consistent herewith.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF STONE COUNTY IS REVERSED AND REMANDED. ALL COSTS ARE ASSESSED TO THE APPELLEE.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS AND CHANDLER, JJ., CONCUR.


author: BRIDGES, J.,

text:
    Charles McQUIRTER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01285-COA.
    Court of Appeals of Mississippi.
    Oct. 28, 2003.

      Gus Grable Sermos, Summit, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and THOMAS, JJ.
   BRIDGES, J.,

for the Court.

¶ 1. Charles McQuirter was indicted by the grand jury of Wilkinson County for burglary of a storehouse in violation of Mississippi Code Annotated section 97-17-38. At the conclusion of his trial, McQuirter was found guilty and sentenced to serve seven years in the custody of the Mississippi Department of Corrections as an habitual offender pursuant to Mississippi Code Annotated section 99-19-81. McQuirter now appeals to this Court concerning that conviction.

STATEMENT OF THE ISSUE

WHETHER THE TRIAL COURT ERRED IN NOT GRANTING MCQUIRTER’S MOTION FOR A J.N.O.V.

FACTS

¶ 2. Charles McQuirter was indicted for breaking and entering of a storehouse of James H. Ray, III with the intent to commit the crime of theft. Ray stayed in a trailer which was located on some acreage owned by his friends. Around Labor Day, 2001, Ray went out of town and when he returned, he found that his trailer had been broken into and ransacked. Among the items found missing were fishing poles and related gear, a bow and arrows, and clothes.

¶ 3. Officer Packnett, one of the investigating officers, testified that during the course of their investigation, they talked to several people and when asked “about something that they had they said that they got it from McQuirter.” Also, a fishing reel was brought to the police by Robert Cage, the grandfather of Steven Cage. When asked by the police where he got the fishing reel, Steven Cage told police that McQuirter had given it to him on his way fishing one day.

¶ 4. Another officer investigating the burglary, Officer Grayson, testified that a number of items belonging to Ray were located in McQuirter’s girlfriend’s residence.

¶ 5. Thelma Williams, McQuirter’s girlfriend, testified that she had known McQuirter for eighteen to nineteen years and they have four children together. She consented to a search of her trailer which yielded “some traps, some clothes, shirt and a pair of pants, a couple of hats.” Williams testified that she found these things in her “mamma’s old car” which had been parked outside the trailer for about five years or so and used for storage space. Williams told deputies that McQuirter put these things into the old car. Specifically, the deputies recovered several hunting caps, a cordless drill, a microphone, a deer trap and some clothing. However, at trial Williams attempted to deny having told the deputies that McQuirter had put a green bag full of stuff into the car. Williams did, however, admit that she retrieved items from the car and put them into a cabinet inside her trailer, where they were later found by deputies.

¶ 6. Mr. Robert Cage testified that he had received a fishing reel from McQuirter. This reel had been identified by Ray as being his, and one of the items of property missing from his trailer after it had been burglarized.

ANALYSIS

¶ 7. McQuirter claims that the State failed to establish that he committed burglary. He states that the State might have proved that he was in possession of recently stolen property but that the State failed to show that he broke and entered Ray’s trailer with the intent to steal. In reviewing his claim, we must first consider the appropriate standard of review.

¶ 8. Motions for JNOV implicate the sufficiency of the evidence and the standard of review is well settled: “we must, with respect to each element of the offense, consider all of the evidence — not just the evidence which supports the case for the prosecution — in the light most favorable to the verdict. The credible evidence which is consistent with the guilt must be accepted as true.” Gleeton v. State, 716 So.2d 1083, 1087(¶ 14) (Miss.1998). In Gleeton, the court also states that we may “reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.” Id.

¶ 9. In Shields v. State, the defendant was convicted of burglary and the issue on appeal involved the sufficiency of the evidence to convict a person for the crime of burglary. Shields v. State, 702 So.2d 380, 381 (Miss.1997). The court, in that case, concluded that the possession of stolen articles, standing alone, may be sufficient. Id.

¶ 10. In Shields, the court arrived at common sense circumstances to be considered. They are stated as follows:

(1) The temporal proximity of the possession to the crime to be inferred;
(2) The number or percentage of the fruits of the crime possessed;
(3) The nature of the possession in terms of whether there is an attempt at concealment or any other evidence of guilty knowledge;
(4) Whether an explanation is given and whether that explanation is plausible or demonstrably false.

Shields, 702 So.2d at 383.

¶ 11. In the case sub judice, the first factor, the temporal proximity of possession, lends great strength to the inference that McQuirter committed the burglary. There is evidence that McQuirter possessed fruits of the burglary within a day or two of the burglary.

¶ 12. With respect to the second factor, while it is not known for certain how many items of property were taken and hidden by McQuirter, it is quite clear that he did indeed have items that were taken in the burglary which were later identified by Ray, such as hunting gear, clothing and some hats.

¶ 13. As to the third factor, McQuirter tried to hide the stolen property in his girlfriend’s mother’s car.

¶ 14. Finally, with regard to the fourth factor, McQuirter offered no explanation whatsoever for having the stolen items in his possession. The court in Cosby v. Jones, observed that “the inference is at its strongest when the defendant wholly fails to make a credible explanation or makes a demonstrably false explanation.” Id. (quoting Cosby v. Jones, 682 F.2d 1373, 1380, 1382-1383 (11th Cir.1982)).

¶ 15. Considering all of the indicia of strength of the inferences together taken, we must conclude that under the circumstances of this case, the inference of burglary is sufficient to support a conviction. Accordingly, we affirm.

¶ 16. THE JUDGMENT OF THE WILKINSON COUNTY CIRCUIT COURT OF CONVICTION OF BURGLARY OF A STOREHOUSE AND SENTENCE OF SEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS AN HABITUAL OFFENDER IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO WILKINSON COUNTY.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: MYERS, J., IRVING, J.,

text:
    Jimmy FORD, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01124-COA.
    Court of Appeals of Mississippi.
    Dec. 9, 2003.

      William Mitchell Moran, attorney for appellant.
    Office of the Attorney General, by Deirdre McCrory, attorney for appellee.
    Before McMILLIN, C.J., MYERS and GRIFFIS, JJ.
   MYERS, J.,

for the Court.

¶ 1. Jimmy Ford appeals his conviction of strong armed robbery. He asserts the following issues as errors:

I. DID THE TRIAL COURT ERR BY FORCING THE DEFENDANT TO GO TO TRIAL ONLY NINE DAYS AFTER HIS INDICTMENT?

II. WAS THE DEFENDANT PREJUDICED BY AN OUT OF COURT DISCUSSION BETWEEN THE TRIAL JUDGE AND THE JURY?

III. DID THE TRIAL COURT ERR BY PROHIBITING THE APPELLANT FROM CALLING AN ALIBI WITNESS?

FACTS

¶ 2. On December 8, 2001, Oralew Pink-erman and Barbara Howard were operating a fireworks stand when they were robbed by two men. The victims viewed a lineup and identified Jimmy Ford and Thomas Junior May as the robbers. Ford was indicted on May 1, 2002, arraigned on May 2, tried and convicted on May 9, and sentenced to a fifteen year sentence on May 10. There is no evidence in the record of a request for a continuance. Ford argues that a request, made in the judge’s chambers, should have been granted because the defense attorney had two cases to try the two days preceding Ford’s trial.

¶ 3. At the trial, the victims and May testified against Ford. The defense called Annie Ford, Ford’s mother, to the stand. She was going to testify that her son, the defendant, was with her at the time of the robbery. The State objected to the testimony of Annie Ford arguing that the defense had never notified them of the alibi witness. The trial judge ruled that Annie Ford could not testify as to an alibi because the defense failed to disclose the alibi defense. Ford was convicted.

LEGAL ANALYSIS

I. DID THE TRIAL COURT ERR BY FORCING THE APPELLANT TO GO TO TRIAL ONLY NINE DAYS AFTER HIS INDICTMENT?

¶ 4. There is no evidence in the record of a formal request for a continuance. As such, we have no way to review the request. Our law is well settled in that we “will not consider matters which do not appear in the record and must confine [ourselves] to what actually does appear in the record.” Wilson v. State, 755 So.2d 2, 4(¶ 8) (Miss.Ct.App.1999) (quoting Medina v. State, 688 So.2d 727, 732 (Miss.1996)). “Moreover, we cannot decide an issue based on assertions in the briefs alone; rather, issues must be proven by the record.” Medina, 688 So.2d at 732. As a result, the issue is procedurally barred.

II. WAS THE APPELLANT PREJUDICED BY AN OUT OF COURT DISCUSSION BETWEEN THE TRIAL JUDGE AND THE JURY?

¶ 5. Ford further argues that he was prejudiced when the trial judge spoke to the jury outside of the courtroom. During the motion for a new trial, the trial judge stated he had talked to the jury but not about the case. He. stated that the only communication dealt with how the jury was doing and if the trial judge could do anything for the jury.

¶ 6. Ford does not show any prejudice other than his conviction. Ford cannot advance any meaningful argument as to prejudice, except to assume or infer some taint on the jury’s deliberations. In addition, Ford has failed to provide any authority in support of his argument. We can not infer prejudice from that type of communication. Gazaway v. State, 708 So.2d 1385, 1387(¶ 7) (Miss.Ct.App.1998). As a result, the issue is procedurally barred.

III. DID THE TRIAL COURT ERR BY PROHIBITING THE APPELLANT FROM CALLING AN ALIBI WITNESS?

¶ 7. Finally, Ford argues that the. trial judge failed to follow the guidelines in Box v. State, 437 So.2d 19 (Miss.1983). In addition, Ford argues that the trial court erred when Annie Ford was not allowed to testify as an alibi witness.

¶ 8. Under similar circumstances, we have previously ruled that the trial judge does not have to consider the Box guidelines. Houston v. State, 752 So.2d 1044, 1047 (¶ 11) (Miss.Ct.App.1999). In Houston, the defense attorney produced a list of witnesses the morning of the trial. It was not until the court ordered the defense to disclose the nature of the testimony of two previously non-disclosed witnesses that it was discovered that their testimony would relate to an alibi. The trial judge considered the options granted by Uniform Rule of Circuit and County Court 9.05 and sustained the State’s objection to the calling of the alibi witnesses. Houston, 752 So.2d at 1047 (¶ 13). The defense appealed asserting that trial judge failed to consider the Box guidelines. We affirmed stating:

When the- supreme court elected to formalize procedures recommended in Box and extend the application of the procedures to defense discovery violations, it incorporated the procedures into Rule 9.04, which dealt with discovery matters pertaining to all areas except matters of alibi. The matter of discovering an alibi defense was handled by a separate rule that set out different duties for the State and the defense from those in Rule 9.04. The rule also set out different sanctions for dealing with violations of the rule. See URCCC 9.05. Rule 9.05 makes no cross-reference to Rule 9.04. Had the supreme court intended the Box procedures to apply to matters of alibi, it could have so provided when, in 1995, it adopted the Uniform Circuit and County Court Rules. We interpret the supreme court’s failure to do so as an indication that the court intended for proceedings relating to alibi defenses to continue to be handled differently, from other discovery matters.

Houston, 752 So.2d at 1046-47 (¶ 11).

¶ 9. Therefore, the trial judge’s refusal to consider the Box guidelines was proper. While the trial judge in this case did not on the record consider the other options available to him under Uniform Rule of Circuit and County Practice 9.05, Ford does not argue that the trial judge should have considered the other options. Thus, we decline to address that issue.

¶ 10. We do find, however, that the trial court erred in prohibiting Ford’s witness from testifying as to his alibi defense. Mississippi Uniform Rule of Circuit and County Court Practice 9.05 states:

Upon the written demand of the prosecuting attorney stating the time, date, and place at which the alleged offense was committed, the defendant shall serve within ten days, or at such other time as the court may direct, upon the prosecuting attorney a written notice of the intention to offer a defense of alibi, which notice shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon which the defendant intends to rely to establish such alibi.
Within ten days thereafter, but in no event less than ten days before the trial, unless the court otherwise directs, the prosecuting attorney shall serve upon the defendant or the defendant’s attorney a written notice stating the names and addresses of the witnesses upon whom the state intends to rely to establish the defendant’s presence at the scene of the alleged offense and any other witnesses to be relied on to rebut testimony of any of the defendant’s alibi witnesses.
If, prior to or during trial, a party learns of an additional witness whose identity, if known, should have been included in the information previously furnished, the party shall promptly notify the other party or the party’s attorney of the name and address of such additional witness.
Upon the failure of either party to comply with the requirements of this rule, the court may use such sanctions as it deems proper, including:
1.Granting a continuance;
2. Limiting further discovery of the party failing to comply;
3. Finding the attorney failing to comply in contempt; or
4. Excluding the testimony of the undisclosed witness.
This rule shall not limit the right of the defendant to testify in his/her own behalf.
For good cause shown, the court may grant an exception to any of the requirements of this rule.

¶ 11. In our analysis of the rule, it appears that the requirement to disclose alibi witnesses must be triggered by the prosecution. Only after the prosecuting attorney makes a written demand is the defendant then required to provide a written notice of his intent to offer a defense of alibi. In addition, the defendant has ten days to provide this notice along with the requisite information.

¶ 12. Unlike Houston, the record in this case shows no such demand by the prosecution. Even assuming, arguendo, that the prosecution did deliver a written demand to Ford, he would still be entitled to ten days to provide his written notice of intent along with the names of the witness he anticipates calling in support of his alibi defense. Considering the fact that only nine days elapsed from the indictment to the trial, it would have been impossible for Ford to comply with the rule. Therefore, the trial court erred in denying Ford the opportunity to present his alibi witnesses. Ford is entitled to a new trial.

¶ 13. THE JUDGMENT OF THE LEAKE COUNTY CIRCUIT COURT IS REVERSED AND REMANDED. COSTS ARE ASSESSED TO LEAKE COUNTY.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING, J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY KING, P.J.

IRVING, J.,

concurring.

¶ 14. I agree that this case should be reversed for the reasons stated in the Court’s opinion. However, I write to record my view that it was improper for the trial judge to speak with the jury outside of the courtroom and to discourage this sort of conduct on the part of trial judges.

¶ 15. The trial judge stated that he did not discuss the case with the jury and that his communication with the jury was limited to a discussion of how the members were doing and if there was anything he could do for them. There is nothing in the record to contradict or cast doubt on the veracity of the judge’s statement. Therefore, I agree with the majority that Ford has not shown any prejudice from what I believe was an improper communication. However, I believe that such ex parte communications — especially by the one individual who is suppose to be the quintessential personification of neutrality and impartiality in a judicial proceeding — run the risk of diminishing litigants’ confidence in the fairness of the judicial process because of the appearance that some unpropitious discussion may have occurred.

¶ 16. Here, the evidence does not suggest any valid reason why the trial judge could not have waited until after the court had been convened, with the jury in the jury box and counsel and client present, to make the inquiry which was made here. Moreover, I note that Rule 3.02 of the Uniform Circuit and County Court Rules prohibits attorneys from having any personal contact with the jury, and Rule 3.04 prohibits a person, or an attorney for a person involved in any case, from communicating with the jury. While these rules speak to attorney conduct, I cannot imagine any reason why the trial judge, absent some type of emergency or special circumstance, should not conduct himself accordingly while outside the courtroom setting.

KING, P.J., JOINS THIS SEPARATE WRITTEN OPINION.