author: CHAMBERLIN, JUSTICE,

text:
    Chaka D. SMITH v. Charles E. WEBSTER
    NO. 2015-EC-01562-SCT
    Supreme Court of Mississippi.
    05/25/2017

      ATTORNEY FOR APPELLANT: ELLIS TURNAGE
    ATTORNEY FOR ■ APPELLEE: CHARLES E. WEBSTER (PRO SE)
    BEFORE RANDOLPH, P.J., KITCHENS AND CHAMBERLIN, JJ.
   CHAMBERLIN, JUSTICE,

FOR THE COURT:

¶ 1. This election contest arises from a November 4, 2014, general election for the circuit judge seat in Mississippi’s eleventh circuit district, subdistrict 3 (“subdistrict 11-3 ”). The special judge granted Charles Webster’s motion for summary judgment, finding no genuine issue of material fact existed regarding which candidate received the most votes in the election. Aggrieved, Chaka Smith appealed. We affirm the trial judge’s grant of summary judgment in favor of Webster.

FACTS AND PROCEDURE

¶2. On November 4, 2014, a general election was held for the subdistrict 11-3 circuit judge seat. Subdistrict 11-3 encompasses all voting precincts in Tunica County, as well as certain statutorily designated voting precincts in both Coahoma and Quitman Counties. Both Webster and Smith sought the subdistrict 11-3 seat and, according to the final certifications, Webster won the election by 886 votes. Webster received 3,255 votes, whereas Smith received 2,369 votes. Of the total votes cast, 390 were cast by absentee ballot. Webster received 296 of the absentee ballots and Smith received the remaining 94.

¶ 3. After the election had been certified, Smith conducted statutory examinations of the ballot boxes pursuant to Mississippi Code Section 23-15-911(1). During the examinations, Smith requested to photocopy or scan the contents of the ballot boxes. The Coahoma, Quitman, and Tunica County circuit clerks denied these requests.

114. On November 24,2014, Smith filed a petition in the Quitman County Circuit Court seeking both declaratory relief and to contest the election. Smith sought declaratory relief as to whether a candidate “has a legal right to make photocopies of election documents prior to filing an election contest” during a ballot-box examination under Section 23-15-911(1). Smith further alleged that this Court’s order adopting the Mississippi Rules of Civil Procedure created unconstitutional power-sharing between the judicial and legislative branches.

¶5. Smith also contested the election, alleging violations of elections laws and procedures by election officials during the November 4 election. One of the violations alleged by Smith was that most of the absentee ballot applications and envelopes were in violation of statutory provisions and were commingled to the extent that illegal absentee ballots could not be separated from legal absentee ballots. Webster filed his answer and affirmative defenses, and Special Circuit Judge M. James Chaney Jr. was designated to hear the contest.

¶ 6. On January 22, 2015, pursuant to Mississippi Rule of Civil Procedure 34, Smith filed a motion for authority to examine, inspect, and photocopy the contents of ballot boxes used in the subdistrict 11-3 election. Judge Chaney held a hearing and ultimately denied the motion. The special judge concluded that Section 23-15-911(1) does not allow making copies of the ballot-box contents. Further, Judge Chaney stated that Rule 81 limits the application of the Rules of Civil Procedure in election contests and that, even if the rules did apply, Rule 34 had no application to Smith’s request.

¶ 7. At the hearing, however, Judge Chaney gave Smith fifteen days to submit a list of specific documents from the ballot boxes that she wanted to copy. The trial judge reiterated that only documents pertaining to specific voters should be requested. The special judge also allowed Webster to file objections to Smith’s list. Smith submitted her list of documents, Webster filed his objections, and the trial judge held another hearing on the matter.

¶ 8. Brenda Wiggs, circuit clerk of Quit-man County, and Charles Oaks, circuit clerk of Coahoma County, testified at the hearing. Wiggs and Oaks testified that the vast majority of documents requested by Smith were either: (1) not located in the ballot boxes or (2) not applicable because their counties used direct-recording electronic voting equipment. Many of Smith’s requests asked for documents applicable only in elections using optical mark reading equipment. After hearing arguments, Judge Chaney sustained Webster’s objections to the documents that were not located in the ballot box or that were inapplicable to the election. As to the items requested that were located in the ballot box, Judge Chaney determined that Smith’s request did not comply with the specificity requirement that he previously had ordered. Smith’s request sought “each” absentee ballot application and “each” absentee envelope rather than requesting the absentee ballots and envelopes of specific voters.

¶9. Later in the pretrial proceedings, Smith designated William Cooper and Talbot Brooks as “geocoding” experts. In his declaration, Cooper claimed that his geo-coding analysis revealed that 1,385 registered voters in Coahoma and Quitman Counties were assigned to the wrong sub-district. Therefore, Smith alleged that nonresidents of subdistrict 11-8 were able to vote in the November 4 election, while many residents of the subdistrict were “left off of the pollbooks” and therefore unable to vote in the election. As shown in Smith’s First Amended Petition, Smith asserted that 600 persons improperly cast their ballots in the election or were unable to vote in the election due to misassignment. On April 22, 2015, Webster filed a motion to disallow Smith’s expert witnesses, arguing that the experts’ findings were not relevant and/or not rehable.

¶ 10. The trial judge granted Webster’s motion. Judge Chaney found that Brooks had provided no “investigation, report or opinion relevant to th[e] election contest.” The special judge also found that Cooper’s geocoding analysis was based solely on Excel files he received from Smith. No certification from the circuit clerks, however, was provided to indicate that Cooper relied upon accurate data or maps in calculating his results. Therefore, Judge Chaney determined that Cooper’s findings were not rehable.

' ¶ 11. On August 28, 2015, Webster filed a combined motion for summary judgment and memorandum of authorities. For purposes of summaiy judgment, Webster accepted as true Smith’s assertion that 600 combined voters in Coahoma and Quitman Counties illegally voted in the election or were unable to vote in the election due to misassignment. Further, Webster also accepted' as true that all 390 absentee ballots were invalid. Smith responded with a motion for partial summary judgment, a motion for declaratory judgment, a motion for reconsideration, and a response to Webster’s motion for summary judgment. The trial judge held a hearing and ultimately granted Webster’s motion for summary judgement.

¶ 12, The trial judge found that, even if he were to take Smith’s assertions as true, Webster still would win the election, By subtracting 296 absentee votes from Webster, Webster would have had 2,959 votes. By subtracting 94 absentee votes from Smith, Smith would have had 2,275 votes. Thus, .the difference between Smith and Webster without the absentee votes would have been 684 votes. Even assuming 600 persons unlawfully voted in the election or were unable to vote in the election and that all 600 would have voted for Smith, the special judge concluded that Webster still would have won by 84 votes.

¶ 13. The special judge also resolved Smith’s request for declaratory judgment, finding that this Court already has determined- that the judicial review process of election contests does not create a separation of powers issue. Lastly, in his .order granting summary judgment, the special judge dismissed all other outstanding motions as moot. On October 16, 2015, Smith appealed. Smith raises six issues, recited verbatim as follows:

1. The Standard of Review For a Trial Court’s Denial of Discovery Rights, the Exclusion of Expert Testimony and the Grant of Summary Judgment
2. Whether A Candidate For Public Office Has The Right To Make And Obtain Photocopies And/or Scan Of Election Materials and Documents Used To Conduct An Election Within The Twelve (12) Day Period Under Miss. Code Ann. 23-15-911 (1972)?
3. Whether The Provisions Of The Mississippi Supreme Court May 26,1981 Order Adopting Rule 81(a)(4) But Leaving In Place Procedural Statutes Constitute Power Sharing In Violation Of The Separation of Powers Doctrine Or, Alternatively Determining That The Trial Court Committed An Abuse Of Discretion By Denying Smith’s Discovery Rights Under The MRCP?
4. Whether The Trial Court’s Exclusion of Smith’s Experts By Order Filed May 20, 2015 Was An Abuse Of Discretion?
5. Whether The Trial Court Committed Reversible Error By Granting Summary Judgment To Webster In The Presence Of Genuine Issues Of Material Fact?
6. Whether The Trial Judge Abused Its Discretion By Not Ruling On Smith’s Rule 54(b) Motion For Reconsideration?

ANALYSIS '

I. The Standard of Review for a Trial Court’s Denial of Discovery Rights, the Exclusion of Expert Testimony and the Grant of Summary Judgment

■ ¶ 14. Because Smith’s first issue is simply a statement of the standard of review for each issue presented, no discussion is necessary.

II. Whether a candidate for public of-ficé has the right to make and obtain photocopies and/or scan of election materials and documents used to conduct an election within the twelve-day period under Mississippi Code Section 23-15-911.

¶ 15. As a matter of statutory construction, Smith asks this Court to declare that a candidate has a legal right under Section 23-15-911(1) to copy, scan, and photograph redacted and nonconfidential material used to conduct án election during a pre-suit, ballot-box examination. This Court reviews issues of statutory construction de novo. Tunica County v. Hampton Co. Nat'l Sur., LLC, 27 So.3d 1128, 1131 (Miss. 2009).

' ¶ 16. In matters concerning statutory construction, “[t]he function of the Court is not to decide what a statute should provide, but to determine what it does provide.” Lawson v. Honeywell Int’l, Inc., 75 So.3d 1024, 1027 (Miss. 2011) (citing Russell v. State, 231 Miss. 176, 94 So.2d 916, 917 (1957)). We do not broaden or restrict legislative acts, but rather seek to “give effect to: the intent-of the Legislature,” Id. (citing City of Natchez, Miss. v. Sullivan, 612 So.2d 1087, 1089 (Miss. 1992)). When a statute is unambiguous, this Court simply applies the plain meaning of its words. Id.

¶ 17. Sectipn 23-15-911(1) states, in pertinent part:

... At any time within twelve (12) days after the canvass and examination of the box and its contents by the election commission or executive committee, as the case may be, any candidate or his representative authorized in writing by him shall have the right of full examination of said box and its contents upon three (3) days’ notice of his application therefor served upon the opposing candidate or candidates, or upon any member of their family over the age of eighteen (18) years, which examination shall be conducted in the presence of the circuit clerk or his deputy who shall be charged with the duty to see that none of the contents of the box are removed from the presence of the clerk or in any way tampered with. Upon the completion of said examination the box shall be resealed with all its contents as theretofore.

Miss. Code Ann. § 23-15-911(1) (Rev. 2015) (emphasis added). Smith does not identify any particular language in the statute that grants a candidate the right to copy the contents of the ballot box. Rather, she simply asks this Court to hold that this statute contains such a right. Though the statute grants a candidate “the right of full examination of said box and its contents,” it says nothing about whether ballot-box materials may be copied or scanned. See id.

18. The Mississippi Attorney Gen-Genhas opined as follows:

There is no doubt that a candidate who makes his request to examine the ballot boxes in a timely manner has a right to do so. However, there is no statutory authority for a candidate to remove the ballots to copy or to bring a copy machine into the room where the ballots are kept to make copies of the ballots.

Hon. Valerie T. Smith, Miss. Att’y Gen. Op. No. 97-0322, 1997 WL 370242 (June 13, 1997) (emphasis added); see also Fritzie Toney Youngman, Esquire, Miss. Att’y Gen. Op. No. 2001-0367, 2001 WL 797251 (June 22, 2001) (finding same). Attorney-general opinions are not binding on this Court but may be considered. See McAdams v. Perkins, 204 So.3d 1257, 1262 (Miss. 2016).

¶ 19. Like these attorney-general opinions and the special judge, we find that Section 23-15-911(1) is unambiguous in that it does not create a right to copy or scan materials from the ballot box during a statutory examination. We find this argument without merit.

III. Whether the provisions of the Mississippi Supreme Court May 26, 1981, order adopting Rule 81(a)(4) but leaving in place procedural statutes constitute power sharing in violation of the separation-of- ' powers doctrine or, alternatively, determining that the trial court committed an abuse of discretion by denying Smith’s discovery rights under the Mississippi Rules of Civil Procedure [sic].

¶ 20. Smith’s third issue consists of two separate arguments. Both of these arguments center around her being unable to reexamine the contents of the ballot boxes after she filed her lawsuit, which Smith characterizes as a denial of discovery. First, Smith claims that Section 23-15-911(1) is a legislatively promulgated procedural statute which restricts the scope of discovery.

¶ 21. From the outset, we disagree with Smith’s assertion that Section 23-15-911(1) is a legislatively promulgated procedural rule in violation of Mississippi Constitution Article 1, Section 2. To the contrary, this Court has strictly upheld the statute’s twelve-day time frame to view the contents of the ballot box. See Cook v. Brown, 909 So.2d 1075, 1077 (Miss. 2005); see also Weeks v. Bates, 237 Miss. 778, 780, 115 So.2d 298, 300 (1959)). In doing so, this Court has noted that “the time frame for viewing ballots is a legislative Junction, and this Court has no authority to modify the statutory limitation.” Cook, 909 So.2d at 1077 (citing Weeks, 115 So.2d at 300) (emphasis added). Simply put, Section 23-15-911(1) creates a substantive right to view the ballot-box contents for a limited time after an election is conducted. This right does not restrict any party’s discovery rights under our rules of civil procedure.

¶ 22. Second, Smith argues that the trial judge abused his discretion by denying her Rule 34 motion to examine, inspect, and photocopy the contents of the ballot boxes. Because a general election contest had been filed when her motion was presented, Smith argues that she was authorized to copy the contents of the ballot boxes under Mississippi’s discovery rules. She asserts that, instead of applying the rules to her request, the trial judge determined that Section 23-15-911(1) controlled the scope of discovery in this election contest.

¶23. Though the special judge stated that Rule 81 limits the application of the rules in an election contest, he still found that, if the rules did apply, Rule 34 did not govern Smith’s request. In the proceedings below, Smith sought to copy the contents of the ballot boxes pursuant to Rule 34. The scope of Rule 34, however, applies only to documents “within the possession, custody, or control of the party upon whom the request is served.” See Miss. R. Civ. P. 34(a). Here, no request was served upon a party; rather, a motion was filed asking the special judge to enter an order allowing Smith to photocopy the documents in the ballot boxes. Even more, Rule 34 applies only to documents in the possession, custody, or control of another party. See id. The only other party to this case was Webster, and, of course, the ballot-box materials were not in his possession, custody, or control. Therefore,' we agree with the special judge’s finding that Rule 34 did not apply to Smith’s request.

¶ 24. Additionally, Smith’s argument fails to recognize that the special judge granted her fifteen days to request specific documents from the ballot box that she had found objectionable and wanted to copy. Regardless of how Smith characterizes her argument, Judge Chaney in fact granted her an opportunity to copy documents from the ballot boxes that she viewed during the twelve-day period in Section 23-15-911(1). However, Smith failed to comply with the special judge’s order. Instead of requesting documents concerning specific voters as instructed, Smith asked to copy “each” absentee ballot and “each” absentee envelope. Further, most of the documents she requested were not even located in the ballot boxes.

¶ 25. As an aside, we also note that, for purposes of summary judgment, the trial judge agreed to throw out all of the absentee ballot votes that Smith sought to copy. Thus, this argument is, in essence, moot. Finally, we note that Smith was not denied discovery in this matter under the Mississippi Rules of Civil Procedure. Smith conducted depositions of three circuit clerks, and the parties engaged in extensive written discovery. We find this issue to be without merit.

IV. Whether the trial court’s exclusion of Smith’s experts by order filed May 20, 2015, was an abuse of discretion.

¶ 26. For the reasons set forth in Issue V, we decline to address Smith’s fourth issue.

V. Whether the trial court committed reversible error by granting summary judgment to Webster in the presence of genuine issues of material fact.

¶27. Next, Smith argues that the special judge erred by granting Webster’s motion for summary judgment because questions of material fact existed for a jury to decide. Smith argues that by disqualifying (1) all 390 absentee votes, (2) all votes which she claims were illegally cast by voters who were nonresidents of sub-district 11-3, and (3) giving her the benefit of all votes from subdistrict 11-3 residents who were “left off of the pollbooks,” she puts enough votes in dispute to entitle her to a jury trial. Even throwing out all of these votes and taking into account the ■ findings of Smith’s disallowed expert, Smith does not overcome Webster’s 886-vote margin.

¶28. A trial judge’s grant of summary judgment is reviewed de novo. Moore v. Parker, 962 So.2d 558, 567 (Miss. 2007). “[T]he pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, [must] show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Id. (quoting Miss. R. Civ. P. 56(c)). “[A]n adverse party [to summary judgment] may not rest upon the mere allegations or denials of the pleadings, but instead the response must set forth specific facts showing there is a genuine issue for trial.” Bosarge v. LWC MS Props., LLC, 158 So.3d 1137, 1142 (Miss. 2015). “If no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in that party’s favor.” Id. (quoting Monsanto Co. v. Hall, 912 So.2d 134, 136 (Miss. 2005)).

Absentee Ballots

¶ 29. Regarding the absentee ballots cast in the subdistrict 11-3 election, Smith alleged that most of the absentee-ballot envelopes and applications were in violation of mandatory statutory provisions. In her discovery responses, Smith stated that:

During petitioner’s ballot box examinations in [Coahoma County], [Quitman County] and [Tunica County], a review revealed that a total of 390 absentee ballots were cast in [subdistrict] 11-3; petitioner received 94 total absentee votes; respondent received 296 absentee votes; respondent received 75.89% percent of the total absentee votes. The absentee ballots have now been commingled and if irregularities are established to these absentee ballots, all absentee ballots must be thrown out.

¶ 30. The trial judge accepted as true for purposes of summary judgment that all 390 absentee ballots were illegal. Thus, after throwing out 296 votes for Webster and 94 votes for Smith, Webster’s margin of victory dropped from 886 votes to 684 votes. See Fillingane v. Breland, 212 Miss. 423, 437, 54 So.2d 747, 750 (1951) (“[Illegal ballots] requiref ] a reduction of a contes-tee’s vote .... ”). Therefore, no genuine issue of material fact exists concerning the absentee ballots in the ■ subdistrict 11—3 election.

Smith’s Misassignment Theory

¶31. To overcome Webster’s winning margin, Smith also alleged that numerous votes from Coahoma and Quitman Counties in the election Came from misassigned and therefore illegal, nonresident voters of subdistricts 11-1 and 11-2. Further, Smith averred that numerous persons who in fact resided in subdistrict 11-3 were unable to vote in the general election because they had also been misassigned to the wrong subdistrict.

¶ 32. Smith’s theory of misassignment stems from the findings of her disallowed expert, Cooper. Based on his geocoding analysis,' Cooper determined that approximately 1,385 registered- voters were assigned to the incorrect subdistricts in Coa-homa and Quitman Counties. Smith took this number and concluded that 600 persons illegally voted or were unable to vote in the general election. In her amended petition, Smith alleged:

85.... a minimum combined total of 337 [Coahoma County] legal resident voters of SD 11-3 were denied their statutory and constitutional right under Mississippi law to vote and illegal non-resident voters of SD 11-1 and/or SD 11-2 in [Coahoma County] were misssigned to SD 11-3 and permitted to vote in the SD 11-3 CCJ election, according to the [Coahoma County] SEMS VR-009 Voter History Report and pollbooks. provided on April 21, 2015.
86. In [Quitman County], in the November 4, 2014 CCJ SD 11-3 election, a minimum combined total of 263 legal resident voters of SD 11-3 were denied their right to vote under Mississippi law and illegal non-resident voters of SD 11-2 of [Quitman County] were permitted to vote in the SD 11-3 election.

(Emphasis in original.)

¶ 33. Like Smith’s argument concerning the absentee ballots, Smith placed before the special judge only allegations as to why 600 votes should be discarded—not facts. Smith incorrectly claims in her brief that “Mr. Cooper’s declaration states that 600 persons who were allowed to vote in [subdistrict] 11-3 on November 4, 2014 [,] were illegally and impropérly misassigned to [subdistrict] 11-3, but are in fact resi-. dents of [subdistriets 11-1 and/or 11-2 in Coahoma and Quitman Counties].” The brief further claims that “Mr. Cooper’s declaration attest [sic] to the fact that 337. non-resident voters in [Coahoma County] and 263 non-resident voters in [Quitman County] illegally voted in [subdistrict] list.]” Cooper’s declaration,' however, contains no such statements.

¶ 34. So, as shown, Smith’s amended petition alleged that 600 voters from subdis-trict 11-1 and 11-2 illegally voted in the election. Her petition did not, however, specify how= many voters from subdistrict 11-3 were improperly assigned to the incorrect subdistrict and therefore “left .off of the pollbooks.” But, when responding to Webster’s Third. Set of Interrogatories during discovery, Smith stated the following with regard to Coahoma County:

I contend that the combined total of legal resident voters of SD 11-3 of Coa-homa County, Mississippi (CCM) who were denied the right to vote in the November 4, 2014 circuit court judge election by being misassigned to SD 11-1 or 11-2 and the illegal non-resident voters of SD-11-3 and permitted to vote in the SD 11-3 election total 337 to date. My investigation continues and this answer will be supplemented.

(Emphasis added.) With regard to Quit-man County, Smith answered:

In Quitman County, Mississippi (QCM), I contend that a combined total of legal resident voters of SD 11-8 who were denied the right to vote in the November 4, 2014 circuit court judge election and illegal non-resident voters of SD 11-2 of QCM- who were permitted to vote in the SD 11-8 election total 263.

(Emphasis added.) Based on Smith’s sworn responses, it is clear that Smith’s 600-voter total includes all persons who she claims were unable to vote in subdistrict 11-3 and those who she claims unlawfully voted in the subdistrict 11-3 election.

¶ 35. For purposes of summary judgment, Webster and the trial judge took these allegations as true and gave Smith the benefit of all 600 votes. Even with the benefit of these 600 votes, however, Webster still won the election by 84 votes. Smith stated her theory of overcoming Webster’s margin of victory in a response to an interrogatory:

If the 390 absentee ballots cast are determined to be illegal votes due to statutory defects and are thrown out coupled with the 337 misassigned and illegal votes cast in CCM and the 263 misas-signed and illegal votes cast in QCM, the 886 winning margin shown in the certified returns is overcome by the 990 misasigned [sic] and illegal votes case [sic] and the election results thereof do not conform to the will of the voters and uncertainty has been cast upon the results.

(Emphasis added.) Smith’s theory, however, erroneously added the 390 absentee ballots to the 600 misassigned voters rather than subtracting the number of absentee votes each candidate received. Therefore, even taking all of Smith’s allegations as true, no genuine issue of material fact exists as to which candidate received the greatest number of legal votes in the sub-district 11-3 election.

VI. Whether the trial judge abused his discretion by not ruling on Smith’s Rule 54(b) motion for reconsideration.

¶ 36. Lastly, Smith argues that the special judge failed to rule on a pending motion to reconsider four of his prior orders and therefore abused his discretion. We disagree. Paragraph 14 of the judge’s order granting summary judgment states:

Because of the court’s ruling on this dispositve motion, all other outstanding motions are dismissed as moot.

¶ 37. So, instead of entering a separate order disposing of Smith’s motion to reconsider, the special judge summarily disposed of all outstanding motions, including Smith’s Rule 54(b) motion. No error occurred here.

CONCLUSION

¶ 38. For the above reasons, we affirm the judgment granting summary judgment in favor of Webster.

¶ 39. AFFIRMED.

WALLER, C. J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING, COLEMAN, MAXWELL AND BEAM, JJ., CONCUR.

      . In pertinent part, the statute states:
      ... At any time within twelve (12) days after the canvass and examination of the box and its contents by the election commission or executive committee, as the case may be, any candidate or his representative authorized in writing hy him shall have the right of full examination of said box ....
      Miss. Code Ann. § 23-15-911(1) (Rev. 2015).

      . Smith filed an amended petition on June 29, 2015, adding a ninth cause of action.

      . Smith filed a petition for interlocutory review of Judge Chaney’s order that Smith had no right to copy contents of the ballot box, which a panel of this Court denied.

      . " 'Direct recording electronic voting equipment' means a computer driven unit for casting and counting votes on which an elector touches a video screen or a button adjacent to a video screen to cast his or her vote.” Miss. Code Ann. § 23-15-531(b) (Rev. 2015).

      ." 'Optical mark reading equipment (OMR)’ means any apparatus necessary to automatically examine and count votes as designated on paper ballots.” Miss, Code Ann. § 23—15— 303(b) (Rev. 2015).

      . According to Cooper’s declaration, "[g]eo-coding is an automated geographic information system (GIS) software method that locates addresses by longitude and latitude. Once geographic points for a list of addresses are determined by the software, the address points can then be displayed as an overlay on a computer map with additional geographic layers.”

      . Of the 1,385 registered voters, 939 were from Coahoma County and 446 were from Quitman County. Cooper also noted that "because the Coahoma registered voter list [he] received contain[ed] only mailing addresses, there [were] about 3,250 P.O. Box addresses” that he could not geocode, which could increase the 939 total from Coahoma.

      . The record is. in fact void of any opinion given by Brooks. All the record contains concerning Brooks is a copy of his resume.

      . Cooper’s declaration states that "Mr, Tur-nagé [who is Smith’s lawyer] provided me with Microsoft Excel files of registered voters in both counties. It is my understanding that the Excel files were prepared by the offices of the Circuit Clerk in the respective counties. .Both Excel files identified all voters by [Circuit Clerk] subdistrict.”

      . No person or collection of persons, being one or belonging to one of these departments [the legislative, executive, or judicial], shall exercise any power properly belonging to either of the others. The acceptance of an office in either of said departments shall, of itself, and at once, vacate any and all offices held by the person so accepting in either of the other departments.
      Miss. Const, art. 1, § 2.

      . Cooper did not note how many, if any, of the 1,385 registered voters actually voted in the November 4 election.

      . There is no indication in the record that the total of 337 was ever supplemented.

      . Smith’s brief centers solely around the exclusion of Cooper's findings and presents no argument as to why it was error to exclude Brooks, other than a summary statement claiming such. We find any argument asserting that the trial judge erred by disallowing Brooks to be waived. See Morgan v. City of Ruleville, 627 So.2d 275, 279-80 (Miss. 1993).


source: Caselaw Access Project

author: MAXWELL, JUSTICE,

license: Public Domain

text:
    STATE of Mississippi v. Kevin SCOTT a/k/a Kevin V. Scott a/k/a Kevin Vincent Scott a/k/a Kelvin Scott a/k/a Kelvin Vincent Scott
    NO. 2014-KA-00123-SCT
    Supreme Court of Mississippi.
    06/01/2017

      - ATTORNEYS FOR APPELLANT: OFFICE OF THE ATTORNEY GENERAL BY: JASON L. DAVIS BRAD ALAN SMITH
    ATTORNEYS ' FOR APPELLEE: JAMES W. CRAIG'MEGHAN SHAPIRO
   MAXWELL, JUSTICE,

FOR THE COURT:

¶ 1. A Bolivar County Circuit Court judge ruled death-row inmate Kevin Scott was intellectually disabled and thus ineligible for the death penalty under the Eighth Amendment. The State has appealed. It argues: (1) the trial judge ignored the mandate of Scott II, which directed Scott take a specific malingering test before his intellectual-disability hearing; (2) the trial judge abused his discretion when he permitted Scott’s experts to testify at the intellectual-disability hearing; and (3) the trial judge failed to make independent findings of fact and conclusions of law when ruling Scott intellectually disabled.

¶ 2. We find no reversible error. The requirement to take a specific malingering test was expressly overruled four months after the mandate in Scott II. And the admission of Scott’s experts was within the sound discretion of the trial court. Finally—though the State had ample opportunity to do so—it made no attempt to supplement the record to prove its allegation that the trial judge recited Scott’s proposed findings instead of making his own independent findings. In short, the State’s failure to provide record evidence of this claim prohibits us from reviewing it.

¶ 3. Thus, we must affirm the order vacating Scott’s death sentence based on the finding of intellectual disability. This finding does not relieve Scott from criminal culpability and punishment. Scott’s conviction for capital murder still stands. We remand this case to the Bolivar County Circuit Court for Scott to be resentenced.

Background Facts and Procedural History

I. Direct Appeal

¶4. In November 1995, eighteen-year-old Scott killed Richard Lee while stealing his car. In 1998, he was tried before a Bolivar County jury, which found him guilty of capital murder. After a separate hearing, the jury sentenced Scott to death.

¶ 5. Scott appealed. We affirmed Scott’s conviction and death sentence. Scott I, 878 So.2d 933. In doing so, we rejected Scott’s argument that he was intellectually disabled and—based on the recently handed-down United States Supreme Court opinion, Atkins v. Virginia—ineligible for execution. See Atkins, 536 U.S. 304, 122 S.Ct. 2242 (holding that imposing the death penalty on intellectually disabled persons violates the Eighth and Fourteenth Amendments). But we acknowledged Scott could be eligible for a hearing on his intellectual-disability claim if he attached a sufficient affidavit to his postconviction-relief (PCR) application. Scott I, 878 So.2d at 948.

II. PCR Application

¶ 6. Scott timely filed an application for PCR, which we granted in part in 2006. We remanded to the Bolivar County Circuit Court the single issue of Scott’s alleged intellectual disability. Scott II, 938 So.2d at 1250.

¶ 7. In contrast to his direct appeal, we found Scott had provided the necessary-affidavit to entitle him to an Atkins hearing. Id. at 1238. The State conceded the affidavit by Scott’s expert, Dr. Marc Zimmerman, satisfied the deficiencies we found in Scott I. But the State took issue with “the findings and methods of Dr. Zimmerman.” Scott II, 938 So.2d at 1238. In particular, the State asserted “Dr. Zimmerman failed to administer the Minnesota Multiphasic Personality Inventory II (MMPI-II),” which at the time was “required prior to an adjudication on a claim of mental retardation pursuant to Atkins.” Id. In response, “Scott argued that the. MMPI-II is not an appropriate test for individuals with mental retardation,” citing Dr. Zimmerman’s opinion “that the MMPI-II test would be of ‘questionable value’ because Scott is unable, to read beyond a third-grade level.” Id. But as “this Court ha[d] not disregarded the MMPI-II test,” we mandated that, “prior to an adjudication on the mental retardation issue, Scott must obtain a MMPI-II test.” Id.

¶ 8. Four months later, however, this Court did disregard the MMPI-II—or at least stopped making the MMPI-II a mandatory requirement. Lynch, 951 So.2d at 557. Under the Atkins guidelines adopted in Chase v. State, 873 So.2d 1013, 1029 (Miss. 2004), this court held that the defendant’s expert was permitted to perform the MMPI-II “and/or other similar tests.” Lynch, 951 So.2d at 556 (quoting Chase, 873 So.2d at 1029). So in Lynch, we clarified that “trial courts are free to use any ... approved tests ... to determine mental retardation and/or malingering by a defendant.” Id. at 557.

III. Atkins Hearing

¶ 9. Scott’s Atkins hearing was finally held over two days in December 2013 and one day in January 2014.

¶ 10. For Scott’s Atkins hearing, Dr. Zimmerman appended his 2005 report to address adaptive functioning. And in 2012, Dr. Zimmerman'interviewed six of Scott’s family members face-to-face, administering retroactive Vineland Surveys. Based on those surveys and Scott’s school records, Dr. Zimmerman concluded Scott had adaptive-functioning deficits in at least five areas.

¶ 11. But Dr..Zimmerman left unaltered the part of his 2005 report in which he concluded Scott’s similar results on two different IQ tests administered on the same day—a 63 on the Wechsler Adult Intelligence Scale-Ill (WlAIS-III) and a 65 on the Kaufman Adolescent and Adult Intelligence Test (Kaufman)—sufficiently eliminated the possibility that Scott was malingering.

¶ 12. This prompted the State to start the hearing with an objection. The State argued Scott should not be.permitted to move forward because he had not complied with this Court’s specific mandate in Scott II. The State conceded the specific directive to administer the MMPI-II had been overruled by Lynch. However, it argued Scott’s expert still had to administer some type of “malingering instrument” before the hearing. According to the State, Dr. Zimmerman’s method for ruling out malingering—back-to-back IQ tests on the same day—would not suffice, because it had not been peer-reviewed or widely accepted in the forensic-psychology field.

¶ 13. The trial judge postponed ruling on the State’s motion until after Dr. Zimmerman testified about his testing procedures. During Dr. Zimmerman’s redirect, Scott’s counsel presented an article by Dr. Gilbert S. Macvaugh and Dr. Mark D. Cunningham, “Atkins v. Virginia: Implications and Recommendations for Forensic Practice,” 37 J. Psychiatry & L. 131 (2009). According to the article, “Although several instruments exist that are designed to assess malingering of memory and cognitive deficits, these instruments lack sufficient normative data for persons with mental retardation in their standardized samples.” Consequently, the study suggests that administering these instruments “create[s] the risk of false positives.” Id, at 172-73. Moreover, the article claims studies investigating the validity of malingering instruments on the intellectually disabled “have produced mixed results.” Id. at 173. In Drs. Macvaugh and Cunningham’s opinion, assessing suboptimum effort is “greatly assisted by the presence of intellectual assessment results that predate the capital charge. The stability of results from repeated intellectual assessments that are separated by years ... is also of inferential benefit.” Id. While they admitted they were “aware of no longitudinal research investigating this premise,” they opined “it would seem to be a task of improbable complexity to ‘dial in’ a performance consistent with mild mental retardation on multiple test administrations separated by years, particularly when different instruments have been employed.” Id.

¶ 14. Based on this article, the trial judge overruled the State’s objection and accepted Dr. Zimmerman’s expert testimony that, to a reasonable degree of certainty, Scott met the three criteria for intellectual disability and was not malingering.

¶ 15. The judge also. overruled the State’s objection to school psychologist Gussie Farris being tendered as an expert. Farris testified -• that when Scott was in eighth grade his mother asked for a comprehensive assessment of Scott. As part of the assessment team, Farris administered the Wechsler Intelligence Scale for Children (WISC) to Scott, who received a full-scale score of 68. WTiile this score put Scott in the intellectually disabled range, Farris said she did not classify Scott as “educable mentally retarded” due to the unwritten school policy not to classify African-American male students like Scott as educable mentally retarded unless absolutely necessary. Because Scott’s scores “could go either way”—meaning she could classify him as “educable mentally retarded” or “specific learning disability”—she chose to classify him as the latter. But in her expert opinion, Scott was mentally retarded.

¶ 16. In addition to Dr. Zimmerman’s and Farris’s expert testimony, the trial judge heard from two lay witnesses—Diane Scott, Scott’s mother; and Linda Bra-sel, Scott’s special-education teacher.

¶ 17. The State’s expert, Dr. Robert M. Storer, then testified. In contrast to Dr. Zimmerman, Dr. Storer believed Scott was malingering. Dr. Storer had tested Scott in 2012. He administered to Scott several malingering tests and the WAIS-IV. Dr. Storer concluded Scott was exaggerating psychological symptoms and had given inconsistent effort. Because of this, Dr. Storer testified he was unable to evaluate Scott’s true intellectual ability. Dr. Storer also testified he was unable to conclude Scott had any adaptive-functioning deficits due to conflicting information from Scott’s family members.

¶ 18. At the conclusion of the hearing, the judge ruled that Scott had proved by a preponderance of the evidence that he is intellectually disabled and, thus, under Atkins, could not be executed. By order, the judge vacated Scott’s death sentence.

IY. State’s Appeal

¶ 19. The State has appealed the trial judge’s order. The State raises five claims:

1. The trial -judge reversibly erred when he denied the State’s objection that Dr. Zimmerman gave no malingering measure as ordered by this Court. .
2. The trial judge erred in holding Dr. Zimmerman had administered a valid malingering test.
3. The trial judge erred regarding the testimony of school psychologist Gussie Farris.
4. The trial judge erred in relying on the testimony of Dr. Zimmerman to determine Scott was intellectually disabled.
5. The trial judge’s judgment must be vacated' and remanded so that he may issue his own findings of fact and conclusions of law and enter a new judgment on that basis.

Discussion

I. No Record Evidence

¶ 20. We begin with the State’s last claim—the trial judge failed to make independent findings. The State asserts the judgment was not based on the circuit court’s own findings of facts and conclusions of law but instead reflects an almost-verbatim adoption of Scott’s proposed findings of facts and conclusions of law.

¶'21. This is a serious allegation. As this Court has said, “[t]he ultimate issue of whether [an Atkins claimant] is, in fact, [intellectually disabled] for purposes of the Eighth Amendment, is one for the trial judge, who sits as the trier of fact and assesses the totality of the evidence as well as the credibility of witnesses.” Doss v. State, 19 So.3d 690, 714 (Miss. 2009). And only when a trial judge’s finding on intellectual disability is “clearly erroneous” may this Court disturb it. Goodin v. State, 102 So.3d 1102, 1111 (Miss. 2012). But how can this Court apply a “clearly erroneous” standard when there is serious doubt as to whether the trial judge made his own findings on the issue of Scott’s intellectual disability? In other words, adopting one side’s proposed findings—versus making independent findings—seriously undermines the trial judge’s role as the fact-and-credibility finder, as well as this Court’s deferential standard of review. Indeed, in Chase v. State, 112 So.3d 421, 422 (Miss. 2013) (Chase II), the trial judge’s wholesale adoption of thé State’s proposed findings “rais[ed] concerns”—so much so that this Court specifically mandated the trial judge “issue his own Findings of Fact and Conclusions of Law” on remand.

¶ 22. But after contending that the trial judge’s adoption of Scott’s proposed findings requires reversal, the State wholly fails to support its contention with record evidence. Instead, the State attached a copy of Scott’s proposed findings as an exhibit to its brief, asking us to compare the document with the judge’s order. But as the State is well aware, the State did not make this document part of the record, and merely attaching something to a brief does not make it record evidence. And as the State is also well aware, this court is precluded from delving into matters outside the record. See Hampton v. State, 148 So.3d 992, 995 (Miss. 2014) (and cases cited therein); Keller v. State, 138 So.3d 817, 873-74 (Miss. 2014). The State does not explain why it never sought to make Scott’s proposed findings of facts and conclusions of law a part of the record. Nor does it explain why it never moved to supplement the record once it was filed with this Court. See M.R.A.P. 10(e).

¶ 23. Moreover, given the seriousness of the State’s contention—and Scott’s concession of the similarity between his proposed findings and the judge’s order—this Court actually ordered the Bolivar County Circuit Court to make an evidentiary finding whether the document the State attached to its brief had in fact been submitted by Scott’s counsel to the trial judge. Prior to the trial court’s determination, the State made no attempt to present evidence to the trial court to support its contention or otherwise ensure Scott’s proposed findings became part of the record. It simply sat idly by.

¶ 24. Thus, through the State’s inaction, we are left with a serious appellate issue that has no support in the record. Consequently, because there is no record evidence to support this allegation, our precedent demands we find this issue to be without merit.

II. No “Malingering Test”

¶25. The State’s first two appellate issues center on the fact Dr. Zimmerman never administered a test specifically designed to detect malingering. According to the State, Dr. Zimmerman’s failure to give a “malingering test” ignored our mam-date in Scott II and also fell short of meeting Chase’s requirements.

A. Scott IT s Overruling

¶26. The State concedes the requirement that Scott take the MMPI-II was overruled by Lynch. But it still insists Scott had to undergo some sort of malingering test to comply with Scott II. However, our mandate in Scott II was based on a specific point of law—“The MMPI-II test is required prior to adjudication on a claim of mental retardation pursuant to Atkins and Chase.” Scott II, 938 So.2d at 1233. And that specific point of law was expressly overruled. Lynch, 951 So.2d at 557. With that overruling went the requirement that Scott had to obtain any further testing before his Atkins hearing.

B. Chase’s Requirements

¶ 27. With Scott II's additional MMPI-II requirement overruled, Scott had the same burden as any other Atkins claimant in Mississippi. In Chase, we held—

[N]o defendant may be adjudged mentally retarded for purposes of the Eighth Amendment, unless such defendant produces, at a minimum, an expert who expresses an opinion, to a reasonable degree of certainty, that:
1. The defendant is mentally retarded, as that term is defined by the American Association on Mental Retardation and/or The American Psychiatric Association;
2. The defendant has completed the Minnesota Multi phasic Personality Inventory-II (MMPI-II) and/or other similar tests, and the defendant is not malingering.

Chase, 873 So.2d at 1029.

¶28. According to the State, to meet Chase’s second prong, Dr. Zimmerman had to administer a test specifically designed to detect malingering—simply administering two different IQ tests and comparing the results could not suffice.

¶ 29. We disagree. As this court previously clarified in Lynch, there is no mán-date of specific testing to meet Chase’s requirements. Lynch, 951 So.2d at 556-57. Instead, Scott could rely on “any other tests and procedures permitted under the Mississippi Rules of Evidence, and deemed necessary to assist the expert and the trial court in forming an opinion as to whether the defendant is malingering.” Chase, 873 So.2d at 1028 n.19 (emphasis added).

¶ 30. Here, both Scott’s expert and the State’s expert did agree on one thing. Both claimed no malingering test has been “normed” for- the intellectually disabled. For this reason, Dr. Zimmerman administered no malingering tests, instead finding consistency across different IQ tests ruled out malingering. By contrast, Dr. Storer administered four malingering tests, finding consistency across different malingering tests indicated malingering. “Neither side’s methodology, approach, or understanding of the issue is infallible.” Doss, 19 So.3d at 714. So long as the expert opinion about malingering is admissible under our Rules of Evidence, the chosen method for reaching that conclusion goes to the weight and credibility of the expert opinion, not its sufficiency to meet Chase’s requirement. See Chase, 873 So.2d at 1028 n.19; see also Phillips v. State, 984 So.2d 503, 510 (Fla. 2008) (deferring to the trial court’s determination that the state’s expert, who testified the defendant was malingering, was more credible than the defendant’s expert, who did not test the defendant for malingering).

C. Mississippi Rule of Evidence 702

¶ 31. This brings us to the State’s alternative argument that Dr. Zimmerman’s expert opinion that Scott was not malingering was inadmissible under Rule 702 because the back-to-back-IQ-test procedure does not find support within the forensic-psychology community. See M.R.E. 702.

¶ 32. Under Rule 702:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the- facts of the case.

Essentially, the State is arguing Dr. Zimmerman’s' testimony about malingering does not meet the second prong because it is not the product of reliable principles and methods.

¶ 33. But at the Atkins hearing, Scott presented evidence the,forensic-psychology community has accepted Dr. Zimmerman’s method—-namely, the article by Dr. Macvaugh and Dr. Cunningham. In addressing the suggestion no malingering test has been normed for the intellectually disabled, Dr. Macvaugh and Dr. Cunningham opined that assessing subopti-mum effort is “greatly assisted by the presence, of intellectual assessment results that predate the capital charge. The stability of results from repeated intellectual assessments, that, are separated by years ... is also of inferential benefit.” Mac-vaugh. Cunningham, supra at 173. While admittedly not aware of any “longitudinal research investigating this prem-te,” in their view “it would seem to be a task of improbable complexity to ‘dial in’ a performance consistent with mild mental retardation on multiple test administrations separated by years, particularly when different instruments have been employed.” Id.

¶ 34. The State argues Dr. Zimmerman’s back-to-back IQ testing did not put into practice the article’s theory that it would be difficult to fake consistent scores on different tests “separated by years.” But Dr. Zimmerman did not rely solely on back-to-back tests. In line with the article, Dr. Zimmerman ■ compared Scott’s scores on the two IQ tests he had administered in 2005 with Scott’s scores on four prior IQ tests administered years earlier, two of which were administered before he committed the capital crime, all of which yielded scores in the intellectually disabled range.

¶ 35. Admission of expert testimony is within the sound discretion of the trial court. Bishop v. State, 982 So.2d 371, 380 (Miss. 2008). And here, the trial court considered Dr. Macvaugh and.Dr. Cunningham’s article when ultimately ruling Dr. Zimmerman’s opinion on malingering was reliable. Given our deferential standard of review, we find no reversible error in admitting Dr. Zimmerman’s expert opinion that Scott’s multiple consistent IQ scores in the intellectually disabled range ruled out the possibility of malingering.

III. Additional Expert

¶36. In addition to challenging the admissibility of Dr. Zimmerman’s expert testimony, the State also argues the trial judge erréd by permitting school psychologist Gussie Farris to testify.

¶ 37. According to the State, “Chase requires a ‘licensed psychologist^,]’ which Farris is not.” Instead, Farris is a masters-level school psychologist for the Coa-homa County School District, licensed through the Mississippi Department of Education, with more than thirty years’ experience in special education and administration of IQ tests.

¶ 38. The State is correct that Chase requires an expert opinion from “a licensed psychologist or psychiatrist, qualified as an expert in the field of assessing [intellectual disability], and further qualified as an expert in the administration and interpretation of tests, and in the 'evaluation of persons, for purposes of determining [intellectual disability].” Chase, 873 So.2d at 1029. But “[u]pon meeting this initial requirement to go forward, the defendant may present such other opinions and evidence as the- trial court may allow pursuant to the Mississippi Rules of Evidence.” Id. In other words, while Chase requires the expert opinion of at least one licensed psychologist, it does not restrict expert testimony to licensed psychologists only. Instead, so long as Farris properly qualified as an expert under Mississippi Rule of Evidence 702, she could give an expert opinion.at Scott’s hearing. Chase, 873 So.2d at 1029.

¶ 39. Again, we point out the admission of expert testimony is within the sound discretion of the trial court, Bishop, 982 So.2d at 380. To be admissible, ,“[e]x-pert testimony must be relevant and reliable.” Bateman v. State, 125 So.3d 616, 625 (Miss. 2013). And here, Farris’s testimony was both. Her testimony of Scott’s 1993 assessment and school records was relevant. And her education and experience supported the trial judge’s finding that ¡her expert testimony was reliable. Thus, the trial judge did not abuse his discretion when he admitted Farris as an expert.

¶40.-Still, the State challenges Farris’s reliability, arguing she made statements during cross-examination that showed she was biased. But concerns of bias go to the weight and credibility ■ of Farris’s testimony, not its admissibility. And the trial judge—not this court—is the “sole authority for determining credibility of the witnesses.” Doss, 19 So.3d at 694 (quoting Loden v. State, 971 So.2d 548, 572-573 (Miss. 2007)). The trial judge found Farris’s testimony to be credible. Our standard of review requires we defer to his credibility determination.

IV. Opposing Experts

¶41. In its first two issues, the State challenged the legal sufficiency and admissibility of Dr. Zimmerman’s expert testimony, based on his underlying methodology. In its fourth issue, the State challenges the weight the trial judge afforded 'Dr. Zimmerman’s expert testimony that Scott met all three criteria of intellectual disability. Essentially, the State argues the trial judge picked the 'wrong expert. Instead of relying on Dr. Zimmerman’s opinion to support a holding of intellectual disability, tjie State suggests the trial judge should have believed the view of its expert, Dr. .Storer, who found Scott was malingering.

¶ 42. But our legal role as a reviewing court is not to second-guess whether Dr. Storer’s opinion that Scott was malingering was more credible than Dr. Zimmerman’s opinion that Scott was intellectually disabled. Instead, in cases like this one, where “we have ... experts who take opposite positions as to whether” Scott is intellectually disabled, Mississippi law requires we defer to the trial judge, who “sits as the trier of fact and assesses the totality of the evidence as well as the credibility of witnesses.” Doss, 19 So.3d at 714. Only when a trial judge’s finding on intellectual disability is “clearly erroneous” may we disturb it. Goodin v. State, 102 So.3d 1102, 1111 (Miss. 2012). But the mere likelihood we would not have bought a particular expert’s view or would have ruled differently than the trial judge does not amount to clear error. Booker v. State, 5 So.3d 356, 358 n.2 (Miss. 2008) (citing Easley v. Cromartie, 532 U.S. 234, 242, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001)).

¶43. Here, the trial judge was faced with battling experts. Scott’s consisted of a licensed forensic psychologist and a school psychologist who both testified Scott was intellectually disabled. And the State offered a licensed psychology expert who testified he could not reach a reasonable degree of certainty about the issue. After hearing from all experts, the judge found Dr. Zimmerman’s and Farris’s testimony to be more credible. This finding is entitled to deference. See Doss, 19 So.3d at 714; see also Phillips, 984 So.2d at 510 (“Although Phillips challenges the trial court’s credibility finding, we give deference to the court’s evaluation of the expert opinions.”).

¶ 44. Further, this finding was supported by lay testimony of Scott’s mother and special-education teacher, Scott’s school records, and the fact he had received social security disability benefits as a teenager based on “severe mental retardation.” Therefore, we do not disturb the trial judge’s finding of intellectual disability on appeal.

Conclusion

¶ 45. Finding no reversible error supported by the record, we affirm the trial court’s judgment vacating Scott’s death sentence. While Scott may not be executed due to his intellectual disability, “mentally retarded persons who meet the law’s requirements for criminal responsibility should be tried and punished when they commit crimes.” See Atkins, 536 U.S. at 306, 122 S.Ct. at 2244. So Scott still must be punished for capital murder. As he has yet to be resentenced, we remand this case to the Bolivar County Circuit Court for resentencing.

¶ 46. AFFIRMED AND REMANDED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING, COLEMAN, BEAM AND CHAMBERLIN, JJ., CONCUR.

      . See Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding that, based on "evolving standards of decency,” imposing the death penalty on intellect!!ally disabled persons violates the Eighth Amendment).

      . Scott v. State, 938 So.2d 1233, 1238 (Miss. 2006) (Scott II).

      . See Lynch v. State, 951 So.2d 549, 557 (Miss. 2007) (clarifying that an Atkins claimant may use any approved tests and procedures and does not have to take the Minnesota Multiphasic Personality Inventory II (MMPI-II).

      . See Atkins, 536 U.S. at 306, 122 S.Ct. at 2244.

      . See note 16, infra.

      . More details of the murder and Scott’s related aggravated-assault conviction can be found in Scott v. State, 878 So.2d 933, 939-42 (Miss. 2004) (Scott I).

      . While Atkins used the term "mentally retarded,” as did this Court when we adopted the Atkins standard, that term has since been replaced by "intellectually disabled.” See Chase v. State, 171 So.3d 463, 466 n.1 (Miss. 2015) (Chase III).

      . In this Court’s first Atkins case, we held "that the Minnesota Multiphasic Personality Inventory-II (MMPI-II) is to be administered since its associated validity scales make the test best suited to detect malingering.” Foster v. State, 848 So.2d 172, 175 (Miss. 2003).

      . All references in this opinion simply to “Chase" refer to our 2004 opinion, Chase v. State, 873 So.2d 1013 (Miss. 2004). Reference to other Chase v. State opinions are distinguished by either “Chase II" or “Chase III.”

      . Farris testified this policy stemmed from the “Mattie T." litigation—a forty-year class action based on disparate treatment of black special-education students in Mississippi. See S. Herr, Special Education Law and Children with Reading and Other Disabilities, 28 J. Law & Educ. 337, 361 (July 1999)) (unpublished) (noting Mattie T. v. Holladay, DC74-31(S) (N.D. Miss.), resulted in a consent decree "to overhaul Mississippi's special education system”).

      . To test for effort and malingering, Dr. Storer administered the Rey Fifteen Item Memory Test (RMT), the Test of Memory Malingering (TOMM), the Miller Forensic Assessment of Symptoms Test-(M-FAST), and the Validity Indicator Profile (VIP).‘'

      . Malingering is the "intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining drugs.” Foster, 848 So.2d at 175 (Miss. 2003); see also Scott I, 878 So.2d at 946 (defining malingering as "grossly exaggerat-mg or fabricating information” for reasons including "avoiding arrest or evading prosecution and incarceration”). In the death-penalty context, malingering has been described as the "deliberate feigning of [intellectual disability] in order to avoid the death penalty.” Thomas v. Allen, 614 F.Supp.2d 1257, 1302 (N.D. Ala. 2009).

      . In 2004, we adopted both the American Association on Mental Retardation (AAMR)’s and the American Psychiatric Association (APA)'s then-current definitions of "mental retardation.” Chase, 873 So.2d at 1027-28. A decade later, we updated the term "mental retardation” to "intellectual disability” and adopted the latest definitions by AAMR, now the American Association for Intellectual and Developmental Disability (AAIDD) and the APA. Chase III, 171 So.3d at 469-70. "The new AAIDD and APA definitions are similar and require the same three basic elements of intellectual disability as the earlier definitions: significantly subaverage intellectual functioning, significant deficits in adaptive behavior, and manifestation before age eighteen.” Id.

      . Scott first was tested in 1992, when he applied for Social Security disability benefits. He scored a 48. A year later, Farris administered. the WISC as part of the comprehensive assessment by Scott’s school. Scott obtained a ■ full-scale score of 68. And after he was arrested, Scott took the WAIS-III twice in 1997. The State’s expert, Dr., Criss Lott, assessed Scott a full-scale score of 73. And Scott’s expert, Dr. Mulry Tetlow, gave Scott a full- . scale score of 60. In , Chase, this Court adopted the American Psychiatric Association’s view "that ‘mild’ mental retardation is typically used to describe persons with an IQ level of 50-55 to approximately 70," though "mental retardation may, under certain conditions, be present in an individual with an IQ of up to 75.” Chase, 873 So.2d at 1028.

      . Other jurisdictions have relied on this comparative method to rule out malingering. E.g., Brumfield v. Cain, 808 F.3d 1041, 1060 (5th Cir. 2015) (rejecting Louisiana’s argument that the defendant’s low IQ scores were the result of "low effort” in part because the defendant’s expert testified the defendant’s "consistent scores across multiple tests over multiple years ruled out malingering”); U.S. v. Nelson, 419 F.Supp.2d 891, 902 (E.D. La. 2006) (finding the "most compelling argument against the possibility of malingering in this case is the overwhelming consistency among all the intelligence testing”); Black v. State, 2005 WL 2662577, at *5 (Tenn. Crim. App. Oct. 19, 2005) (unreported) (noting the defendant’s expert saw no evidence of malingering, even though he did not specifically test for it, because "he administered a battery of tests, which would in effect rule out malingering because it’s difficult to perform poorly on the same concept on various tests’’); see also Hall v. Florida, — U.S.—, 134 S.Ct. 1986, 2011, 188 L.Ed.2d 1007 (2014) (Alito, J., dissenting) (dissenting in part based on the "well-accepted-view ... that multiple consistent scores establish a much higher degree of confidence” that the score is an accurate reflection of the defendant's actual intellectual ability”).

      . At the time Scott murdered Lee in November 1995, Mississippi Code Section 99—19— 101(2)(d) (Rev. 1994) provided—as it still does today—three sentencing options for capital murder—life, life without the eligibility of parole, and death. Cf. Miss. Code Ann. ¶ 99-19—101(2)(d) (Rev, 2015). But a year prior to the murder, the Legislature amended Mississippi Code Section 47-7-3, the parole-eligibility statute, to remove parole eligibility for capital murder. Instead, "[n]o person shall be eligible for parole who is charged, tried, convicted and sentenced to life imprisonment under the provisions of Section 99-19-101 [.]" 1994 Miss. Laws First Exec. Sess. ch. 25, ¶ 5 (S.B. 2003) (currently codified as Miss. Code Ann. ¶ 47—7—3(1 )(e) (Rev. 2015)). Reading Section 99-19-101 together with Section 47-7-3, this Court has found there are only two sentencing options for capital murder— "death or life imprisonment without the eligibility of parole.” Flowers v. State, 842 So.2d 531, 557 (Miss. 2003). With Scott’s death sentence vacated as unconstitutional due to his intellectual disability, only one available sentencing option is left—life without the eligibility of parole.


author: MAXWELL, JUSTICE, KITCHENS, JUSTICE,

text:
    In the MATTER OF the ESTATE OF Robert Ernie JOHNSON, Deceased Robert A. Johnson v. Myra Linda Henderson, Executrix
    NO. 2016-CA-00219-SCT
    Supreme Court of Mississippi.
    06/01/2017

      ATTORNEY • FOR APPELLANT: KERRY MILL§ BRYSON
    ATTORNEYS FOR APPELLEE: GREGORY C. MORTON, JOSEPH M. SPARKMAN, JR.
   MAXWELL, JUSTICE,

FOR THE COURT:

¶ 1. Under our civil discover rules, a party who fails to attend his own properly noticed deposition may be sanctioned—up to dismissal of his case. Here, the plaintiff in a will contest intentionally skipped out on his deposition. This prompted the chancellor to grant the defendant’s motion for sanctions, dismissing the will contest. While this sanction was harsh, it was within the chancellor’s discretion to impose. Wé thus affirm.

Background Facts and Procedural History

¶2. After -Robert A. Johnson’s father died, his stepmother, Myra Linda Henderson, filed a petition to probate his father’s will. This will left nothing to Johnson or his brother. So on August 26, 2014, Johnson filed a petition to contest the will.

¶3. On October 12, 2016, Henderson noticed Johnson’s deposition for October 22, 2016. The deposition was to take place at Henderson’s attorney’s office in Southa-ven, Mississippi. Johnson—a California resident—filed a motion to quash and for a protective order. According to Johnson, traveling to Mississippi on such short notice would have caused him undue burden. He proposed Henderson either pay for his travel to Mississippi, take his deposition remotely by video, or come to California to depose him.

¶ 4. On November 9, 2015, the chancellor heard Johnson’s motion. The judge ruled Johnson had to come to Mississippi to be deposed. And Johnson, through his counsel,, agreed he should be deposed in Mississippi. The chancellor denied Johnson’s motion to quash, but suggested Henderson give Johnson at least thirty days’ notice before deposing him. This would allow Johnson to make travel arrangements for his Mississippi deposition.

¶ 5. The same day. as this ruling, Henderson filed a second notice of deposition. This notice informed Johnson he would be deposed thirty-two days later. The deposition was set for December 11, 2016, at Henderson’s attorney’s office in Southaven.

¶ 6. Three days before the scheduled deposition, Henderson’s attorney contacted Johnson’s counsel to confirm Johnson’s attendance. According to Henderson’s attorney, Johnson’s counsel “very candidly told [him] that his client was not going to be there on the appointed hour of the deposition for December 11th.”

¶ 7. Indeed, Johnson failed to appear for his . deposition on December 11. And Henderson immediately filed a motion for sanctions, requesting Johnson’s will contest be dismissed. The chancellor heard this motion on January 5, 2016. During the hearing, Johnson’s counsel argued Johnson had been too busy to attend the deposition. He told the chancellor Johnson is in the event-planning business. And his important contracts in December and January prevented him from leaving during that period. But he expressed Johnson was willing to come to Mississippi in February, when business slowed down.

¶ 8. The chancellor asked why Johnson had not filed anything but instead chose to disregard the deposition and simply not show up. Johnson’s lawyer told the judge, “I wanted to.” But Johnson directed him to “his attorney in California that handles his business contracts, and I was not able to coordinate with that attorney to get me the documentation to present to the Court.”

¶ 9. Johnson’s lawyer then spoke' on the sanctions request. He argued “if sanctions are imposed, they should be financial.” This would “allow [Johnson] to compensate the opposing party but still -have his day in court here.” The chancellor considered this suggestion, but was not- swayed by it. The chancellor felt a more serious sanction was warranted. As the chancellor put it, “I cannot allow somebody to file an action in a will contest or otherwise in my Court and not make themselves available to the Court for necessary discovery. I can’t allow it. It’s, frankly, contemptuous. And also, if it’s not done, all it does is slow down .the wheels of justice.” For these reasons, the chancellor rejected Johnson’s counsel’s suggestion and instead granted Henderson’s motion to dismiss.

¶ 10.' Johnson timely appealed. Because the trial judge has “considerable discretion in discovery matters,” this Court reviews his decision for abuse of discretion. Salts v. Gulf Nat’t Life Ins. Co., 872 So.2d 667, 670 (Miss. 2004).

Discussion

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

¶ 12. ■ Johnson does not claim he lacked proper notice of the December 11, 2Q15. deposition.. So under Rule 37(d)’s plain language, his failure to appear triggered the chancellor’s discretionary authority to dismiss his will contest with prejudice. Johnson recognizes, this authority but tries to temper his nonappearance by arguing it was not willful. As his lawyer later pitched it to the chancellor, he was just too busy to be there.

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

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

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

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

II17. The dissent and Johnson try to distinguish Salts and Gilbert by arguing, in those cases, the plaintiffs had been ordered to attend the depositions. And in his case, Johnson was never ordered by the chancellor to show up on December 11. But the fact the parties in Salts and Gilbert were under court order—and Johnson was not—is immaterial to our analysis. It simply makes their failures to appear not only violations of Rule 37(d) but also Rule 37(b), which specifically governs the failure to comply with discovery-related court orders. See Salts, 872 So.2d at 674; Gilbert, 749 So.2d at 364. There is nothing in Rule 37(d)—the subsection that specifically governs a party’s failure to attend his own properly noticed deposition—that limits the trial court’s discretionary authority to dismiss to only those eases where a party has been expressly ordered by the court to attend a deposition. Compare M.R.C.P. 37(d) (governing “Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection”) with M.R.C.P. 37(b) (governing “Failure to Comply With Order”). Again, Rule 37(d) makes clear a party cannot ignore a properly served notice of deposition with impunity. Instead, he must appear or, if appearance is not feasible, seek the other side’s cooperation and, if necessary, the court’s intervention. In this case, Johnson did nothing. He simply rolled the dice and decided not to come to Mississippi to be deposed, despite the judge’s ruling.

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

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

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

Conclusion

¶21. When reviewing a dismissal by sanction, our standard is to “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.’ ” Pierce, 688 So.2d at 1388 (quoting Cooper v. State Farm Fire & Cas. Co., 568 So.2d 687, 692 (Miss. 1990)). Because the record does not support a finding of clear error, we must affirm.

¶ 22. AFFIRMED,

WALLER, C.J., RANDOLPH, P.J., COLEMAN, BEAM AND CHAMBERLIN, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., AND KING, J.

KITCHENS, JUSTICE,

DISSENTING:

¶ 23. Because the chancellor erroneously dismissed Robert A- Johnson’s case without having considered the possibility and practicality of lesser sanctions, I respectfully dissent.

¶24. This Court applies an abuse of discretion standard “to. a trial court’s dismissal of an action with prejudice as a result of a discovery violation .... ” Beck v. Sapet, 937 So.2d 945, 948 (Miss. 2006) (citing Salts v. Gulf Nat’l Life Ins. Co., 872 So.2d 667, 670 (Miss. 2004)). The. Court considers the following factors in determining the propriety of a dismissal with prejudice for a discovery violation:

(1) whether the discovery violation resulted from willfulness or an inability to comply; (2) whether the deterrent value of Rule 37 could not have been achieved through lesser- sanctions; (3) whether the other party’s trial preparation has been prejudiced; (4) whether the failure to comply is attributable to the party itself, or their [sic] attorney; and (5) whether the failure to comply was a consequence of simple' confusion or a misunderstanding of the trial court’s order.

Beck, 937 So.2d at 949 (citing Pierce v. Heritage Props. Inc., 688 So.2d 1385, 1389 (Miss. 1997)). “A willful violation of a discovery rule oceurs when there is a conscious or intentional failure to comply with the rule’s requirements.” Pierce, 688 So.2d at 1390 (citing Medina v. Found. Reserve Ins. Co., 117 N.M. 163, 870 P.2d 125, 126 (1994)). “A finding of willfulness may be based upon either a willful, intentional, and bad faith attempt to conceal evidence or a gross indifference to discovery obligations.” Id. “This Court reverses if it has 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.” Beck, 937 So.2d at 949 (citing Caracci v. Int’l Paper Co., 699 So.2d 546, 556 (Miss. 1997)).

¶25. Of course, “a ‘trial court should dismiss a cause of action for failure to comply with discovery only under the most extreme circumstances.’” Kinzie v. Belk Dep’t Stores, L.P., 164 So.3d 974, 977 (Miss. 2015) (quoting Pierce, 688 So.2d at 1388).. We have affirmed the. dismissal of cases only in the most egregious circumstances of discovery violations. See Pierce, 688 So.2d at 1390 (dismissal affirmed because plaintiff lied under oath); Scoggins v. Ellzey Beverages, Inc., 743 So.2d 990 (Miss. 1999) (dismissal affirmed because plaintiff deliberately subverted the judicial process by providing testimony ■ that differed from her medical records); Ashmore v. Miss. Auth. on Educ. Television, 148 So.3d 977, 985 (Miss. 2014) (dismissal affirmed because plaintiff concealed various medical procedures and injuries despite contrary medical records).

¶ 26. In Kinzie, 164 So.3d at 979, this Court reversed dismissal, in' part, because the trial court failed to consider “the possibility and practicality of lesser sanctions.” We held that “[dismissal is appropriate only under the most extreme circumstances and only where lesser sanctions will not suffice.” Id. (citing Pierce, 688 So.2d at 1388-89). See also Am. Tel. and Tel. Co. v. Days Inn of Winona, 720 So.2d 178, 181 (Miss. 1998) (After the trial court dismissed a case pursuant to Mississippi Rule of Civil Procedure 41(b), this Court reversed and remanded because “there is no indication that lesser sanctions were considered by the [trial] court.”)

¶27. The majority states that Johnson “simply rolled the dice and decided he did not have to come to Mississippi to be deposed, despite the judge’s ruling.” Maj Op. ¶ 15. But the court’s order denying Johnson’s timely motion to quash/motion for a protective order did not require Johnson’s attendance at any deposition. In both of the cases upon which the majority relies, Salts v. Gulf National Life Ins. Co., 872 So.2d 667, 674 (Miss, 2004), and Gilbert v. Wal-Mart Stores, Inc., 749 So.2d 361, 364 (Miss. Ct. App. 1999), the trial court had ordered attendance at a scheduled deposition.

¶ 28. In Gilbert, '.William Gilbert filed a lawsuit pro se■ against Wal-Mart, alleging that the failure of Wal-Mart employees properly to issue a Mississippi hunting and fishing license subsequently led to his arrest and that “as a result of his arrest and during his incarceration he was without necessary medication for diabetes and high blood pressure and suffered a diabetic coma.” Id. at 363. He sought $5,558,750 in damages. Id. Wal-Mart provided Gilbert a notice of deposition, to which he responded “by mailing counsel for Wal-Mart a list of lengthy demands to be met by Wal-Mart before he would consent and appear for the taking of his deposition.” Id. After Gilbert failed to appear for his deposition, Wal-Mart filed a motion for sanctions, requesting that the trial court order Gilbert to appear and give testimony. Id. at 363.

¶29. The trial court entered an order requiring Gilbert’s appearance and warning that ‘“failing plaintiff’s unconditional appearance at said deposition, this Court, without necessity of further notice to plaintiff, will enter an order fully and finally dismissing'the Complaint and all parties to the action with prejudice.’ ” Id. A renotice ■of deposition was sent to Gilbert, but Gilbert again failed to appear..Id. The trial court dismissed ■ the cause of action with prejudice. Id. The Mississippi Court of Appeals affirmed, finding that the trial court had not abused its discretion and that “[t]he delays created by Gilbert caused Wal-Mart not -Only the loss of time and money, but also drastically hindered its ability to evaluate settlement possibilities and obtain information necessary to defend against Gilbert’s demand for damages at trial.” Id. at 366.

¶'30. Similarly, in Salts v. Gulf National Life Insurance Company, the trial court granted the defendants’ motion to dismiss because the plaintiffs “ ‘had willfully failed to comply with the court’s order to submit to depositions on February 2-3, 2000.’ ” Salts v. Gulf Nat'l Life Ins. Co., 872 So.2d 667, 669 (Miss. 2004) (quoting Salts v. Gulf Nat’l Life Ins. Co., 849 So.2d 848, 849 (Miss. 2002)). This Court determined that, after the trial court had entered an order setting the plaintiffs’ depositions, and “[w]hether it was their decision or on advice from their attorneys, the plaintiffs chose to disregard the order and did not submit for their scheduled depositions.” Salts, 872 So.2d at 674. “This was a willful failure to comply with the court’s ordér” and “[b]y not being able to take the deposition of the plaintiffs, the defendants’ trial preparation has been substantially prejudiced.” Id. (citing M.R.C.P. 37(b)(2)(c)). This Court, therefore, - affirmed dismissal with prejudice. Id.

¶ 31. In the present case, after Johnson filed the will contest, Henderson provided notice that Johnson would be deposed on October 22, 2015, in Southaven, Mississippi. Because attendance would have required that Johnson travel from his home in California to Southaven, Mississippi, Johnson filed a motion to quash the subpoena duces tecum and, alternatively, for a protective order precluding Henderson from requiring him to undergo the “undue burden or expense” of traveling. Johnson proposed three alternatives: that Henderson pay his travel expenses, that .a deposition take place via Skype, or that Henderson travel to California to take his deposition. Far from being disdainful or dismissive of Henderson’s desire to depose him, Johnson seems to have been trying to find some reasonable way to accommodate her.

¶ 82. The chancery court, following. a hearing on November 9, 2015, simply, denied the motion to quash/motion for a protective order, explaining only that it was “not well founded.” The chancery court did not, as did the trial courts in Gilbert and Salts, require that Johnson appear at a particular place and time to give his deposition. Henderson then amended the notice of deposition, changing the date of the deposition to December 11, 2015. Three days before the deposition had been scheduled unilaterally by Henderson’s lawyer, on December 8, 2015, Johnson’s lawyer informed Henderson’s lawyer that Johnson would not appear on December ll, 2015, to be deposed. There is no indication that, prior to this contact, the two attorneys had spoken to each other with regard to the scheduling of Johnson’s deposition.

¶ 33. Due to Johnson’s absence, Henderson moved for sanctions, asking that the will contest be dismissed with prejudice. On appeal, Henderson argues that the trial court, by denying Johnson’s motion to quash/motion for a protective order, was, in effect, “dismissing his arguments that Ms. Henderson be required to travel to California, Mr. Johnson’s residence, for his deposition.” This, according to Henderson, required “that Mr. Johnson appear in Mississippi for the deposition.” But, as Johnson’s lawyer explained at the hearing on the motion for sanctions, Johnson’s business obligations prevented his attendance in December 2015. He would, according to his counsel at the hearing, be available two months later, in February 2016.

¶ 34. This case is wholly unlike Gilbert, in which Gilbert ignored an order from the trial court which made it clear that, if he failed to appear at his scheduled deposition, his case would be dismissed with prejudice. Gilbert, 749 So.2d at 363. And unlike the circumstances in Salts, here there was no wilful failure to comply with the trial court’s order because therp was no trial court order with which to comply. The trial court never ordered Johnson to appear, much less threatened him with the ultimate sanction of dismissal with prejudice.

¶ 35. It is true that, despite the chancery court’s denial of Johnson’s motion to quash/motion for a protective order, Johnson failed to appear at the December 11, 2015, deposition. But, far from ignoring the deposition notices, Johnson’s lawyer timely responded to the deposition of October 12, 2015, by letter on October 13, 2015, offering reasonable and workable alternatives. While it is arguable whether his conduct in this regard was sanctionable at all, the record does not show that the chancery court considered the possibility of imposing less severe sanctions than the ultimate sanction of dismissal with prejudice.

¶ 36. The majority surmises that the trial judge had considered lesser sanctions because Johnson’s counsel asked the trial court, in the event it found sanctions warranted, to impose solely financial sanctions. Maj. Op. ¶ 18. “Lesser sanctions include ‘fines, costs, or damages against plaintiff or his counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice, and explicit warnings.’ ” Cox v. Cox, 976 So.2d 869, 876 (Miss. 2008) (quoting Am. Tel. and Tel. Co., 720 So.2d at 181-82)). In Cox, we held that

The fact that lesser sanctions were argued before the chancellor, that the chancellor considered all arguments pri- or to dismissal, and that the chancellor denied [the plaintiff’s] motion for reconsideration, in which [the plaintiff] argued that lesser sanctions had not been considered, is sufficient to show that lesser sanctions were considered and rejected.

Cox, 976 So.2d at 876. This Court continued that “consideration of lesser sanctions cannot be presumed, but there should be some indication in the record that lesser sanctions were considered.” Id. n.10 (emphasis in original). •

¶ 37. It is not clear from the transcript or from the chancery court’s judgment of dismissal with prejudice that lesser sanctions were considered by the court. Johnson’s lawyer did explain to the chancellor at the hearing on January 6, 2016, that his client’s business obligations prevented his attendance at the December 2015 deposition, but that Johnson would be available for deposition in February 2016. He asked that “if sanctions are imposed they should be financial sanctions to compensate the opposing party but still have his day in court here.” I decline, however, to presume that the trial court considered lesser sanctions merely because one of the lawyers suggested a financial sanction as an alternative to dismissal. While that statement by counsel does establish that lesser sanctions were proposed, not a shred of evidence exists that the trial court considered that proposal.

¶38.1 would reverse the judgment of the Chancery Court of DeSoto County and remand the case for consideration of whether lesser sanctions are warranted.

DICKINSON, P.J., AND KING, J., JOIN THIS OPINION.

      , M.R.C.P. 37(d).

      . While no transcript of this hearing is in the record, there was a discussion at a later hearing about what transpired on November 9, 2015.

      .While this notice was not made part of the appellate record, Johnson does not contest he received proper notice of the December 11, 2015 deposition.

      . Under Rule 37(d), "The failure to act described in this subsection may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order under Rule 26(d).” While Johnson did apply for a protective order in response to the- notice of the October 22 deposition based on his argument he did not have to come to Mississippi at all, once the trial judge ruled that he did have to come to Mississippi, Johnson never sought a protective order in response to the notice of the December 11 deposition based on his argument that he could not travel during this timé period.

      . Henderson avers in the "Motion for Sanctions," that the trial court gave "direction to give at least thirty (30) days advanced notice so Petitioner could make necessary travel arrangements.” This was not memorialized in the Court’s order denying the motion to quash/motion for a protective order.

      . That notice of deposition informed Johnson that he would be deposed on October 22, 2015, in Southaven, Mississippi.