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    Mary EDWARDS v. COCA COLA BOTTLING COMPANY UNITED, INC., and Willie Lee, Jr.
    NO. 2018-CA-00565-SCT
    Supreme Court of Mississippi.
    March 7, 2019
    ATTORNEYS FOR APPELLANT: J. HEATH SULLIVAN, JACOB D. KING, RIDGELAND
    ATTORNEY FOR APPELLEES: VICKI R. LEGGETT, HATTIESBURG
    BEFORE KITCHENS AND KING, P.JJ., AND BEAM, J.
   KITCHENS, PRESIDING JUSTICE, FOR THE COURT:

¶1. Mary Edwards sued Coca-Cola Bottling Company United, Inc. (Coca-Cola), and Willie Lee, Jr., for back injuries sustained when, while shopping at Wal-Mart, she was struck by a cart driven by Lee as he stocked shelves with soft drinks. The Circuit Court of the First Judicial District of Harrison County dismissed Edwards's lawsuit with prejudice after finding that she had misrepresented her injuries during discovery. Edwards appeals, arguing that her failure to disclose prior back problems in her discovery responses either did not amount to a discovery violation or that such failure merited a sanction less severe than dismissal. Edwards also argues that, because no genuine issue of material fact existed about whether Lee's breach of the duty of care proximately caused her injuries, the trial court erred by denying her motion for summary judgment on liability. Because the trial court was within its discretion in dismissing Edwards's case on the basis of her discovery violation, we affirm.

FACTS

¶2. Edwards filed a complaint against Coca-Cola and Wal-Mart Stores, Inc., alleging that, on August 31, 2013, she had been struck by a cart operated by a Coca-Cola vendor, Willie Lee, Jr., as he stocked shelves. Later, Edwards filed a first amended complaint, adding Lee as a defendant. In its answer Coca-Cola admitted that it was responsible for Lee's actions taken in the course and scope of his employment, but it denied any negligence. Thereafter, Wal-Mart was dismissed from the action.

¶3. Edwards described the accident in her deposition. She testified that, while shopping at Wal-Mart with family members, she squatted down to look at baby food on a low shelf, and a cart struck her in the right hip, causing her to fall. When she righted herself and attempted to stand, the cart struck her a second time, also in the right hip. She testified that she had not seen the cart prior to the accident. Edwards testified that she felt pain in her hip immediately, and the pain spread to her lower back. She testified that Lee had been wearing earbuds and had failed to notice that he had struck someone with his cart. She said that the accident had caused injuries to her middle and lower back. Edwards visited an emergency room after leaving Wal-Mart.

¶4. In his deposition, Lee testified that he was using a U-boat cart to stock shelves on an aisle in Wal-Mart. He testified that a U-boat cart is a six-wheeled cart controlled by the driver's arms using vertical handles. Lee testified that when he rotated the cart to get it out of the way of customer traffic, he could feel that the cart had bumped someone. Although he was aware that he had struck someone, Lee continued stocking shelves because he did not believe that the collision had been a big one. He admitted that, before rotating the cart, he had failed to look near the baby food aisle to see whether anyone was in the way. He denied that he had been wearing earbuds.

¶5. Edwards's treating physician, Dr. Richard Gorman, testified in deposition that, to a reasonable degree of medical probability, the accident had caused Edwards to suffer an annular tear in the lower back at L-5, S-1, and a disc protrusion in the middle back at T-7.The defendants submitted a supplemental interrogatory answer with the opinion of Dr. Eric Wolfson, a neurosurgeon, that Edwards had sustained a lumbar muscular strain in the accident that should have resolved in six to twelve weeks. He opined that the disc problems identified by Dr. Gorman were due to degenerative disc disease, not trauma. Dr. Wolfson reached these conclusions based on the records of Edwards's emergency room visit the day of the accident, which documented that a full examination of her back revealed a full range of motion, no midline tenderness, no muscle spasm, no trauma to the back, and a negative straight-leg raise test.

¶6. While discovery was ongoing, Coca-Cola and Lee filed a motion to dismiss on the basis of discovery violations by Edwards. Coca-Cola alleged that Edwards's interrogatory responses and deposition testimony about her medical history conflicted with her medical records. In her interrogatory answers, Edwards had said that, while she suffers from multiple sclerosis for which she had been placed on Social Security disability, she never had experienced injuries similar to those she sustained in the Wal-Mart accident. She did reveal a workers' compensation claim for a broken rotator cuff between 1999 and 2001. She said that due to the back injuries from the accident, she has trouble with household chores, she cannot lift her small grandchildren, and she cannot fish with her son. These limitations, according to Edwards, have caused her debilitating mental and emotional stress. She filed a second supplemental answer to interrogatories that updated her initial interrogatory response in which she had denied any similar injuries before the accident. In the second supplemental answer, Edwards said she had seen a chiropractor in 2004 for her hip.

¶7. During Edwards's deposition, defense counsel reminded her that she could consult her attorney at any time and that "I don't know" and "I don't remember" were acceptable answers. Edwards testified in deposition that since the accident at Wal-Mart, she suffered with middle and lower back pain. She testified that, before the accident, she never had any problems with her middle back. She said she never had sought medical care for pain or limitations in motion in her middle back before the accident. She also said she had not seen a medical provider for any complaints of middle back pain before the accident. Regarding her lower back, Edwards said she had seen a chiropractor for "a twisted pelvic" in 2004, but otherwise had seen no medical providers for any problem with her lower back before the accident. She denied ever having had any problems or complaints of pain or limitation of motion regarding her lower back before the accident. And she denied having sought medical care or treatment for any lower back problems before the accident. She testified that, before August 2013, she had "never really had a back problem." And she said that, before the accident, no one had ever told her she had disc problems in her back.

¶8. Edwards signed a medical authorization that allowed Coca-Cola access to her medical records. Several of those medical records, summarized below, showed that, in fact, Edwards had a history of problems with her middle and lower back.

• On April 3, 2005, Edwards presented to the UrgiCare Center with fever, congestion, and back pain that she had been experiencing for three days.
• A November 1, 2005, record from the Patterson Medical & Diagnostic Center noted a history of bulging discs in Edwards's neck and back.
• In a January 8, 2007, record from Logan Family Practice, Edwards complained of neck pain that radiated to her middle back.
• On February 21, 2007, Edwards visited Logan again complaining of middle back pain, among other complaints.
• On May 30, 2007, Edwards was treated at Logan for pain in her left hip radiating into her back and low back pain. An examination revealed "[n]o pain in lower back; does have pain over the left hip." She was diagnosed with bursitis in the hip and degenerative joint disease in the neck.
• In another Logan record from June 8, 2007, Edwards complained of back pain and hip pain.
• In records from Northcrest Medical Center on September 26, 2007, Edwards complained that she had seen "Dr. Anderson yesterday and he was going down my spine and pushing and I guess he hit something. My back hurts." Her pain assessment was 8, and she described the pain as located in her middle back. Another note from that visit indicates that Edwards said she has three bulging discs in her back and two in her neck for which she was seeing a different neurologist in another state. The clinic prescribed painkillers for Edwards's back pain.
• On October 15, 2007, Edwards saw Dr. W. Lewis, who reported her history as multiple sclerosis and back pain that Edwards described as inadequately controlled and aggravated by degenerative disc disease. On examination, "[i]t is tender to palpate the lower back in all areas."
• On November 1, 2007, Edwards returned to Northcrest reporting that, after falling on a sloped embankment, her left knee and back were sore. The record notes a history of degenerative disc disease and a disc herniation. She underwent an X-ray of the lumbar spine.
• Northcrest records from January 7, 2008, February 9, 2008, and February 17, 2008, note a medical history of multiple sclerosis and back pain.
• Medical records from Memorial Hospital show Edwards presented complaining of back pain in addition to neck pain and headache.

¶9. Coca-Cola questioned Dr. Gorman about these medical records in his deposition. Dr. Gorman testified that he had treated Edwards for multiple sclerosis from 2005 to the present, and she never had reported any middle or lower back problems before the accident. He first examined Edwards for her injuries from the accident on November 11, 2013. He said that, after the accident, Edwards had problems bending, stooping, and walking, but that she had experienced difficulty with these activities before the accident due to her multiple sclerosis. Dr. Gorman minimized the significance of the back problems noted in Edwards's pre-accident records because none showed radicular symptoms or symptoms that had persisted long enough to prompt any provider to order an MRI scan or to recommend surgery.

¶10. Edwards filed a reply to the motion to dismiss, contending that she had not wilfully or intentionally violated discovery rules. She maintained that, at worst, she had failed to remember minor medical treatment for her back from nearly a decade before her discovery responses. To show that she had lacked intent to obfuscate her medical history, she pointed to her execution of a medical authorization allowing the defendants full access to her medical records. Also, she averred that, after her deposition, she had changed attorneys. Edwards noted that, during Dr. Gorman's deposition, her former counsel, who had been representing her at that time, said he did not have a copy of her medical records at the deposition. She argued her lawyer's statement showed that he never brought the medical records to her attention to refresh her recollection before the deposition.

¶11. Edwards also filed a motion for summary judgment on liability, arguing that no genuine issue of material fact existed that Coca-Cola and Lee had breached a duty owed her and that the breach of duty was the proximate cause of her injuries. The defendants responded, arguing that genuine issues of material fact existed due to the discrepancies in the testimony of Edwards and Lee about how the accident occurred, as well as a grainy video that purported to depict the accident. Edwards filed a rebuttal to the defendants' response.

¶12. After a hearing on the defendants' motion to dismiss and Edwards's summary judgment motion, the trial court granted the motion to dismiss and entered a judgment of dismissal with prejudice under Mississippi Rule of Civil Procedure 37. The trial court found that Edwards had been directly asked in the interrogatories whether she ever had experienced a prior injury in any way similar to the injury claimed in her complaint, and that in her sworn responses, she said that she had not. And in her deposition, she repeated this testimony, denying that she ever had experienced any pain or limitations concerning her lower or middle back prior to the accident and denying that she had seen a medical provider for any problem with her middle or lower back. She also testified that no one ever had told her she had problems with a disc in her back. Later, she supplemented her interrogatory responses to include a hip injury from 2004. The trial court also noted that Edwards never had told Dr. Gorman that she had any problems with her middle or lower back before the accident. The trial court recited the myriad medical records showing that Edwards had, in fact, experienced prior middle and lower back problems for which she had received medical treatment.

¶13. In its analysis, the trial court applied the factors from Pierce v. Heritage Properties, Inc. , 688 So.2d 1385 (Miss. 1997), and found that Edwards's provision of false responses to interrogatories and deposition questions was "the result of willfulness and/or bad faith, and not from her alleged lack of recollection." The trial court found that Edwards's false responses were a deliberate attempt to keep evidence from the court and to hide the truth. And the trial court found that lesser sanctions than dismissal would allow Edwards to get away with lying under oath and would, therefore, not achieve the deterrent value of dismissal. Rejecting Edwards's contention that her false answers were due to lack of memory or her attorney's failure to refresh her recollection, the trial court found her answers unambiguous and purely the product of dishonesty. The trial court found that her conduct substantially had prejudiced Coca-Cola and Lee and that it would force them to retake Edwards's deposition and to take other depositions. Additionally, the trial court found that Edwards's conduct necessitated an exhaustive multistate search for additional medical records, requiring Coca-Cola and Lee to spend extra time and resources in the process. The trial court found that, although dismissal with prejudice was the harshest sanction available, "no other sanction [would] meet the demands of justice." The same day, the trial court entered an order denying Edwards's motion for summary judgment. Edwards appeals both rulings.

DISCUSSION

I. Whether the trial court's dismissal of the action as a sanction for a discovery violation was an abuse of discretion.

A. Standard of Review

¶14. This Court reviews the trial court's dismissal of an action for a discovery violation for abuse of discretion. Ashmore v. Miss. Auth. on Educ. Television , 148 So.3d 977, 981 (Miss. 2014). We begin with a determination of whether the trial court applied the correct legal standard. Pierce , 688 So.2d at 1388. If so, then we consider whether the trial court's "decision was one of several reasonable ones which could have been made." Id. We will affirm "unless there is a definite and firm conviction that the [trial] court ... committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors." Id. (quoting Cooper v. State Farm Fire & Cas. Co. , 568 So.2d 687, 692 (Miss. 1990) ). This Court also has said that it "should engage in 'measured restraint in conducting appellate review' and should not decide whether it would have dismissed the original action but whether dismissal amounted to clear error." Kinzie v. Belk Dept. Stores, L.P. , 164 So.3d 974, 977 (Miss. 2015).

B. Discussion

¶15. Pursuant to Mississippi Rule of Civil Procedure 37 and a trial court's inherent power to protect the integrity of the judicial process, trial courts have broad discretionary authority in discovery matters, including the power to dismiss an action. Miss. R. Civ. P. 37. Pierce , 688 So.2d at 1388. In the seminal case concerning false testimony given in discovery, Pierce , the plaintiff had said under oath that she had been alone when a ceiling fan dropped from the ceiling onto her person, causing injuries. In her interrogatory answers, deposition testimony, and testimony at a first trial, she repeatedly maintained that she had been alone at the time of the incident. Id. at 1387. But those representations were lies. Id. at 1388. After the first trial, the defendants discovered that Pierce had not been alone at the time of the incident; rather, her boyfriend had been present. Id. The defendants moved to dismiss on the basis of the false testimony. Id. Pierce, in a second deposition, testified that she had not meant to deceive the court with her falsehood but that she had lied in order to hide from her parents the fact that she had an unsanctioned male overnight guest. Id. The trial court found that the discovery violation warranted dismissal with prejudice. Id.

¶16. In affirming the dismissal, this Court emphasized the importance of truthful responses to discovery. Id. at 1389. "An implicit condition in any order to answer an interrogatory is that the answer be true, responsive and complete. A false answer is in some ways worse than no answer; it misleads and confuses the party." Id. (quoting Smith v. Cessna Aircraft Co. , 124 F.R.D. 103, 107 (D. Md. 1989) ). The Court held that sanctions, including the most severe sanction of dismissal, must be available to trial courts not only to penalize, but also to deter those who might otherwise be tempted to commit similar discovery violations. Id. The Court held that "the trial court should dismiss a cause of action for failure to comply with discovery only under the most extreme circumstances." Id. at 1388. The following considerations apply in deciding whether a trial court abused its discretion by dismissing an action with prejudice:

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

Id. at 1389 (quoting Batson v. Neal Spelce Assocs., Inc. , 765 F.2d 511, 514 (5th Cir. 1985) ). "Willfulness" may be "either a willful, intentional, and bad faith attempt to conceal evidence or a gross indifference to discovery obligations." Id. at 1390 (citation omitted).

¶17. Applying these criteria, the Court found that Pierce's failure to respond truthfully was wilful and in bad faith because she admitted the truth only when confronted by the defendants. Id. at 1390. The Court recognized that the trial court had considered imposing the lesser sanction of allowing Pierce to be cross examined at trial about the false discovery responses. Id. The trial court had rejected that option because cross examination is available when a party makes an inconsistent statement. Id. The trial court also had declined to impose the lesser sanction of assessing Pierce with fees and costs because the fees probably would exceed any damages awarded if the case were retried. Id. at 1390-91. The Court found that the trial court's decision that lesser sanctions would not suffice was justified because "any other sanction beside[s] dismissal would virtually allow the plaintiff to get away with lying under oath without a meaningful penalty" and would have insufficient deterrent effect. Id. at 1391. The Court found that, although the defendants had suffered no prejudice, no requirement exists that the defendants suffer substantial prejudice from the absence of evidence. Id. Further, the Court found that the discovery violation was attributable to Pierce, not to her attorney. Id. The Court found that, because substantial evidence in the record established Pierce's deception, the trial court had not abused its discretion by dismissing her case with prejudice. Id.

¶18. This test from Pierce has been applied in numerous cases involving sanctions for discovery violations. In Scoggins v. Ellzey Beverages, Inc. , 743 So.2d 990 (Miss. 1999), this Court applied the test in affirming a dismissal for discovery violations similar to those at issue in this case. Scoggins filed a complaint alleging that she was in a grocery store when an employee struck her with a loaded dolly, injuring her foot, leg, and back. Id. at 991. In interrogatories, Scoggins was asked about prior injuries to the areas she claimed had been hurt in the accident. Id. She responded by saying that she never had injured any of the same areas but that she had a pinched nerve in her back in 1958 and had completely recovered. Id. She also denied having been prescribed Xanax before the accident. Id. at 992. Later, in her deposition, the defendants repeatedly questioned Scoggins about whether she had sustained prior foot, leg, or back injuries. Id. at 991. Other than the pinched nerve, Scoggins maintained she had no problems with those areas before the accident. Id. But medical records from Scoggins's personal physician showed that she had been examined for pain, numbness, and arthritis in her left leg, back, hip, and spine in thirty-five visits from 1976 through January 1994, two months before the March 1994 accident. Id. at 992. Scoggins also had undergone a lumbar omnipaquemyelogram in 1991 for lower back and leg pain. Id. Additionally, she had been treated with Xanax from June 1993 through January 1994. Id.

¶19. The defendants moved to dismiss based on Scoggins's perjured testimony in her discovery responses. Id. In response, Scoggins claimed that she had failed to remember her complete medical history. Id. On appeal, Scoggins argued that the trial court had abused its discretion by not imposing a lesser sanction. Id. at 995. But this Court found that the trial court had not abused its discretion by dismissing the case. Id. at 997. The Court found that, because the trial court is the judge of witness credibility, and because of the evidence of Scoggins's deception, determining that Scoggins had misrepresented the truth wilfully and in bad faith was within the trial court's discretion. Id. at 995. And the Court found that the trial court had considered lesser sanctions by describing the possible effects of less drastic sanctions and finding that no other sanction was appropriate. Id. at 997. The Court noted the trial court's finding that the defendants had been prejudiced substantially by Scoggins's actions. Id. And no evidence existed that Scoggins's attorney had been at fault. Id. Further, because Scoggins had obscured only the relevant portions of her medical history, no evidence lent any credibility to her claim of confusion and memory loss. Id. The Court found that, although "[d]ismissal with prejudice is a sanction that should be imposed only in those rare instances where the conduct of a party is so egregious that no other sanction will meet the demands of justice," the trial court was within its discretion in finding that Scoggins's wilful submission of false answers to interrogatories and false testimony in her deposition warranted dismissal. Id.

¶20. In other similar cases, this Court likewise has found that deceptive conduct in discovery warranted the extreme sanction of dismissal under the test from Pierce . In Allen v. National Railroad Passenger Corp. , 934 So.2d 1006 (Miss. 2006), the plaintiff, who had instituted a lawsuit to recover for a back injury, was found to have lied in sworn discovery responses about having suffered a prior back injury and having filed a workers' compensation claim. Id. at 1008. His medical records revealed that he had suffered prior injuries to his lower back in the same location he claimed had been injured in the accident. Id. Allen said he had forgotten the prior injury and treatment. Id. at 1009. The Court found that Allen's misconduct was not a single untruthful response, but repeated failures to disclose the prior injury, and that the trial court had not abused its discretion by dismissing the action after weighing the factors from Pierce . Id. at 1012.

¶21. In Ashmore v. Mississippi Authority on Educational Television , David Ashmore claimed injuries to his right and left knees, back, neck, and upper arms, and his wife asserted a loss of consortium claim. Ashmore , 148 So.3d at 979. The plaintiffs' interrogatory responses omitted David Ashmore's prior back injury, prior injuries to his right and left knees, and a subsequent injury to his left leg. Id. And the wife had failed to disclose that she was seeking similar damages in an unrelated case. Id. at 980. This Court found no abuse of discretion in the trial court's dismissal of the action; the trial court had found a pattern of wilful misrepresentations that subverted the judicial process. The court rejected lesser sanctions, found that the defendants had incurred "major inconvenience in time, attorney fees, and general frustration," and found that the Ashmores, not their counsel, were responsible for the false discovery responses. Id. at 984-85.

¶22. Edwards cites Kinzie v. Belk Department Stores, L.P. , in which the Court held that the trial court had abused its discretion by dismissing an action based on discovery violations. Kinzie , 164 So.3d at 979-80. Kinzie sued his employer after he injured his back while unloading a truck. Id. at 975. Kinzie gave a sworn interrogatory answer stating that, since the accident, he had been

[un]able to cut grass or take care of the lawn, unable to perform house cleaning, [un]able to drive but for very short periods of time, unable to stand or walk for long period[s] of time, [unable to] lift or carry objects or even groceries, difficulty engaging in usual sexual activities, unable to play and hold grandchildren, and other activities as before the incident.

Id. at 976. Belk hired a private investigator who performed surveillance of Kinzie and provided video footage showing Kinzie driving, walking to the post office and to his attorney's office, and working with another man on a shed in his backyard. Id. In his response, Kinzie asserted that none of those activities had violated his doctor's restrictions and that he had performed no task that he had said in discovery responses he could not perform. Id. The trial court found that he had made false assertions in discovery responses and dismissed his action with prejudice. Id. at 977.

¶23. This Court granted certiorari to clarify that Kinzie's discovery violation warranted lesser sanctions than dismissal. Id. at 977. The Court emphasized that dismissal is reserved only for those cases presenting the most extreme circumstances. Id. (citing Pierce , 688 So.2d at 1388 ). Unlike in Pierce , in which the plaintiff had "flat-out lied under oath" about the presence of a witness to the accident, the Court found that Kinzie's discovery response was open to multiple interpretations.

Id. The Court held that, "where the discovery violation at issue is less extreme and open to potential truthful interpretations, this Court will not hesitate to reverse a trial court's Rule 37 dismissal." Id. at 978.

¶24. The Court reviewed Wood ex rel. Wood v. Biloxi Public School District , 757 So.2d 190 (Miss. 2000), in which the plaintiff had reported the following in his interrogatory answer: "I no longer am able to enjoy tinkering with automobiles as the stooping, bending, and squatting are painful." Id. at 193. The defendants provided surveillance footage of the plaintiff engaging in those activities. Id. The Court found that dismissal was not warranted because the single, ambiguously worded discovery response indicated the plaintiff still could perform the listed tasks, just with less enjoyment than before. Id. at 194. Thus the defendants had not established that the plaintiff had made false statements in discovery, and no pattern of false responses had existed. Id.

¶25. Kinzie found the discovery violation at issue to be akin to the one in Wood , rather than to the ones in Pierce , Scoggins , or Ashmore . Kinzie said that

Kinzie did not blatantly lie about the existence of a witness, as did the plaintiff in Pierce , nor did he completely misrepresent years of medical history and procedures, as did the plaintiff in Scoggins , nor did he hide any other surgeries, as did the plaintiff in Ashmore . The Court finds no "total lack of congruence" between Kinzie's responses and his medical records, as the trial court found in Scoggins . Nor do we find this to be "the paradigm situation in which the plaintiff knowingly refused to be forthcoming and actively withheld the truth from the court and gave a great deal of perjured testimony" as this Court found in Pierce .

Kinzie , 164 So.3d at 979 (citations omitted). Kinzie also found that, although the trial court had found that Kinzie's response was false, "the perceived falsehood arose in an isolated incident, and it certainly has not been established that Kinzie's statements in discovery indicate any kind of pattern of misleading or false responses." Id. Because the discovery violation was not extreme, the trial court should have imposed a lesser sanction. Id.

¶26. After Kinzie , this Court decided May v. Austin , 240 So.3d 389 (Miss. 2018). In his lawsuit, May claimed that a car accident had caused injuries to his neck, lower back, and right shoulder. Id. at 390. In interrogatory responses, he consistently denied any prior injuries or medical treatment to his neck, lower back, and right shoulder. Id. at 391. But the defendants obtained medical records by subpoena showing that he had sustained prior significant injuries to his neck and back and had been treated for his right shoulder just four months before the accident. Id. The defendants filed a motion to dismiss that initially was denied by the trial court on the ground that May had signed a medical authorization, which was "slightly indicative of a lack of motive to engage in a pattern of deception." Id. But on reconsideration, the trial court granted the motion to dismiss on the basis of May's unequivocal denials of any prior injuries to the same areas and because, as it turned out, May had not executed a medical authorization, which negated the trial court's initial reason for denying the motion to dismiss. Id. at 393. Applying the test from Pierce and the precedent discussed above, this Court found that the trial court had not abused its discretion by dismissing the action based on May's false responses in discovery. Id. at 398-99.

¶27. Citing Kinzie , Edwards argues that, because her only fault was failing to recall minor medical treatment from nearly a decade before her discovery responses, the trial court erred by imposing any sanction or, at the most, it should have imposed a lesser sanction than dismissal. She also argues that, because she did execute a medical authorization, her case is distinguishable from May . Edwards also cites two cases from the Court of Appeals, Westfall v. Goggins , 247 So.3d 244 (Miss. Ct. App. 2017), and Bowdry v. T. Mart , 240 So.3d 489 (Miss. Ct. App. 2018), in which the Court of Appeals reversed dismissals based on discovery violations consisting of inconsistencies between medical records and discovery responses.

¶28. Our review is limited to whether the dismissal amounted to clear error, not whether we would have dismissed the original action. Kinzie , 164 So.3d at 977. Although this is a close case, a faithful application of our standard of review yields the conclusion that the trial court did not abuse its discretion by imposing the ultimate sanction of dismissal with prejudice. As an initial matter, the trial court was within its discretion in finding that Edwards's false discovery responses were the products of wilfulness and bad faith rather than an inability to comply. While Edwards claimed that she had been unable to recall her medical history, the medical records unearthed by Coca-Cola and Lee reveal an established history of middle and lower back problems. She presented to medical providers on several occasions with complaints of back pain. Most notably, at her visit to Northcrest Medical Center on September 26, 2007, Edwards reported that her back had been injured when another physician had pushed on her spine. During that visit, she reported that she had three bulging discs in her back for which she was being treated by a neurologist in another state. The next month, she was diagnosed with degenerative disc disease. The month after that, she visited Northcrest again, reporting that she had injured her back in a fall. Multiple medical records note a history of back pain, including pain in her middle and lower back pain. Those records directly contradicted Edwards's numerous assertions in her sworn interrogatory responses and deposition testimony that she had no prior middle or lower back problems and that she never had seen a medical provider for such problems.

¶29. Edwards contends that she should not have been expected to remember medical conditions and treatment from almost ten years before her deposition testimony. But this contention is belied by her submission of a supplemental interrogatory answer reporting that, the year before the medical records at issue, she had seen a chiropractor for her hip. Further, unlike in Kinzie , Edwards submitted a pattern of answers that directly contradicted her medical records concerning her prior injury. This case was not dismissed because of "one ambiguously worded response to one interrogatory question." Kinzie , 164 So.3d at 978 (citing Wood , 757 So.2d at 194 ). Rather, Edwards "completely misrepresent[ed] years of medical history and procedures." Kinzie , 164 So.3d at 979. The trial court found that she "very succinctly and definitively lied under oath" about never having had any prior treatment for her middle or lower back. It was within the trial court's discretion to find that Edwards's explanation for the discrepancy between her sworn answers and her medical records was incredible and that this was, indeed, "the paradigm situation in which the plaintiff knowingly refused to be forthcoming and actively withheld the truth from the court and gave a great deal of perjured testimony." Id.

¶30. Edwards's execution of a medical authorization to permit the defendants access to her medical records avails her nothing. The evidence of the medical authorization was before the trial court. But that court in reaching its carefully considered and well-articulated conclusion did not weigh it in favor of Edwards. Despite the medical authorization, as the trial court reasoned, the defendants had not discovered all pertinent medical records concerning Edwards's prior back treatment. Although this Court in May recognized that the trial court in that case had found that the plaintiff's execution of a medical authorization indicated an absence of a motive to engage in deception, this Court has not held that a trial court is required so to find in every case involving false discovery responses.

¶31. Second, the trial court did consider, but decided against, the imposition of lesser sanctions for Edwards's wilful misrepresentations, finding that a lesser sanction would not accomplish the deterrent value of dismissal because any lesser sanction would permit Edwards to get away with having lied under oath. Edwards argues that this Court should follow the Court of Appeals's decisions in Westfall and Bowdry and find dismissal too severe a penalty. But in Westfall , the Court of Appeals found that the plaintiff's denial of a previous similar injury had been mitigated by confusion between injuries to her right and left shoulders, her identification of her treating physician in her interrogatory answers, and her execution of a medical authorization. Westfall , 247 So.3d at 252. And in Bowdry , although in his deposition the plaintiff had denied prior treatment for his neck and lower back, his interrogatory responses led to the disclosure of the contradictory medical records, a fact which the Court of Appeals found to have been mitigating. Bowdry , 240 So.3d at 496. Both Westfall and Bowdry , while worthy of our consideration, were decided by the Court of Appeals and are not binding on this Court. Further, in May , this Court again affirmed a dismissal based on misconduct similar to that in this case. May , 240 So.3d at 398-99. The facts of the present case are substantially similar to those in Scoggins , in which this Court affirmed the trial court's finding that lesser sanctions than dismissal were inadequate. We hold that, under the particular circumstances of this case, the trial court was within its discretion in finding that no sanction less than dismissal would serve the interests of justice.

¶32. The trial court also considered whether Coca-Cola's and Lee's preparation for trial had been prejudiced substantially by Edwards's misrepresentations. Although this Court has held that no finding of substantial prejudice is required for dismissal, here, the trial court found that the defendants' trial preparation had been prejudiced substantially. The trial court found that, due to Edwards's deception, the defendants would need to retake her deposition, possibly take others' depositions, and undertake an exhaustive, multistate search for additional medical records. This would result in the defendants' expenditure of more time and resources than is customary to find this information. We find that the trial court was within its discretion in finding that the defendants' trial preparation had been prejudiced substantially, and that court's finding on this factor supports its ultimate conclusion that the case should be dismissed in the interests of justice.

¶33. Finally, the trial court found "most troublesome" that the neglect was attributable to Edwards, not to her counsel. The trial court rejected Edwards's attempt to blame her former counsel for not bringing the medical records to her attention, finding that Edwards's conduct was attributable solely to her dishonesty. The trial court observed that Edwards had numerous opportunities to correct any confusion or misunderstanding but that she had declined to do so.

¶34. The trial court thoroughly and "properly analyzed [Edwards's] discovery violations, applied appropriate weight to each misrepresentation, and arrived at a justifiable conclusion." May , 240 So.3d at 398. Edwards's submission of numerous sworn discovery responses that directly contradicted her medical records concerning prior medical treatment of her back, the same area she alleged had been injured in the accident, was akin to the misconduct that warranted dismissal in Scoggins . Although in Scoggins the prior treatment was less remote in time than in this case, the trial court's decision was among the reasonable decisions that could have been made based on the evidence. Therefore, the trial court did not abuse its discretion by dismissing Edwards's case. Because we affirm the dismissal of Edwards's suit based on her discovery violation, the issue of summary judgment is moot and will not be addressed.

CONCLUSION

¶35. We find that the trial court properly considered the factors from Pierce v. Heritage Properties and that it acted within its discretion in dismissing this case with prejudice.

¶36. AFFIRMED.

RANDOLPH, C.J., KING, P.J., COLEMAN, MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.

      We note that, because of the poor quality of the video, nothing helpful can be observed.

      Rule 37(b)(2)(C) provides, in pertinent part, that
      If a party or an officer, director, or managing agent of a party or a person designated under Rules 30(b)(6) or 31(a) to testify in behalf of a party fails to obey an order to provide or permit discovery, including an order made under subsection (a) of this rule, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
      ....
      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[.]


source: Caselaw Access Project

author: BEAM, JUSTICE, FOR THE COURT: COLEMAN, JUSTICE, DISSENTING:

license: Public Domain

text:
    In the MATTER OF the ESTATE OF Brenda Louise Bargas FLOWERS:
    Claire C. Flowers and Brenda Jane Flowers Paixao v. The Estate of Brenda Louise Bargas Flowers, Through Its Executor, Knox Lemee Flowers, Cecil C. Lang and Linda S. Lang
    NO. 2016-CT-00800-SCT
    Supreme Court of Mississippi.
    March 7, 2019
    ON WRIT OF CERTIORARI
   BEAM, JUSTICE, FOR THE COURT:

¶1. Claire Clements Flowers (Claire) and Brenda Jane Flowers Paixao (Jane) appealed the judgment of the Leflore County Chancery Court denying their request for an accounting of the estate and testamentary trust of their mother, Brenda Bargas Flowers. The chancery court concluded that the daughters did not have a current interest in their mother's estate.

¶2. On appeal, the daughters argued that they were specifically named in the will to be remainder beneficiaries and thus have standing to request an accounting. The Court of Appeals found that Claire and Jane have standing to request an accounting, finding that they have limited rights as holders of a shifting executory interest to prevent future waste. In re Flowers v. Flowers , No. 2016-CA-00800-COA, --- So.3d ----, 2018 WL 718626 (Miss. Ct. App. Feb. 6, 2018).

¶3. The estate petitioned this Court for a writ of certiorari, claiming that the daughters' appeal was untimely and that the Court of Appeals misapplied caselaw related to shifting executory interests and standing to request an accounting. We granted certiorari not to determine whether the sisters have standing, because we agree that they do, but to determine whether the chancellor abused his discretion in denying the sisters' accounting request. We find no manifest error in the chancery court's decision to deny Claire and Jane's request for an accounting. Accordingly, we reverse that portion of Court of Appeals' judgment and reinstate the chancery court's decision denying Claire and Jane's request for an accounting.

FACTS AND PROCEDURAL HISTORY

¶4. "Richard and Brenda Flowers married and had three children: a son, Knox Lemeé Flowers, and two daughters, Claire and Jane." Flowers , --- So.3d at ----, 2018 WL 718626, at *1. "In 2004, Claire gave birth to a son, D.A.," whom Richard and Brenda adopted in 2005. Id. On April 15, 2006, Richard died. Id. On July 24, 2006, Brenda executed her last will and testament and died about a month later. Id.

¶5. "Brenda's will appointed Knox as her estate executor and provided that he 'serve without bond, inventory, appraisal[,] or accounting to any [c]ourt.' " Id. "The will also established a trust that named D.A.," who was two years old at the time, "and his descendants as the income beneficiaries." Id. "The will provided for the trust's termination either at the time of D.A.'s thirtieth birthday or his death, whichever event occurred first." Id.

¶6. "The will further stated that at the time of termination, the trust's assets were to be divided evenly between D.A. and Knox." Id. If both D.A. and Knox died "without any descendants before the trust's termination, the trust's assets were to be distributed to Claire and Jane as beneficiaries, either directly or through conservatorships." Id. Brenda's will "stated that the trustee 'shall ... account fully and completely annually, throughout the term of this [t]rust, to such income and/or corpus beneficiaries as there may be or[,] in the event such beneficiary is a minor or a ward, then to such beneficiary's guardian.' " Id.

¶7. Brenda's "will was probated in Leflore County, and Knox was appointed her estate executor." Id. at ----, 2018 WL 718626, at *2. "In November 2007, the chancery court awarded custody of D.A. to his paternal grandfather and step-grandmother, Carter and Linda Lang." Id.

¶8. In February 2008, the chancellor signed an order that disposed of numerous motions filed by the parties. Id. " In doing so, the chancellor granted Claire's requests to withdraw her previously filed motion for an accounting of [Brenda's] estate and her petition for Knox's disqualification as estate executor." Id. The chancellor further ordered Knox, as executor, to take the following actions upon the closing of Brenda's estate

[L]ist the household goods and personal belongings of Brenda ..., as well as lockbox contents[,] that came into his possession as [e]xecutor and ... state where these items are presently located, and any items converted to his personal possession or disposed of for his benefit will be noted and charged against any [e]xecutor's fee, as may be determined and approved by this [c]ourt[; and]
....
[F]urnish an accounting of [Brenda's] [e]state from the date of death to the date of any final decree granting Claire ... [g]uardianship of [D.A.] due to the appeal on file at this time ... and[ ] that Claire ... is entitled to an accounting, if and when she becomes a vested remainder beneficiary of this estate from the date of such vesting until delivery of assets to her.

Id. (emphasis added by Court of Appeals).

¶9. "Despite withdrawing her first motion for an accounting" in August 2015, Claire, proceeding pro se , filed a second "petition for a full accounting," alleging "that Knox and others associated with the administration of Brenda's estate had mismanaged and misappropriated estate and trust assets." Id. Claire claimed that "even though she was a remainder beneficiary of [Brenda's] will, she still [had] standing to demand an accounting." Id.

¶10. In February 2016, "Knox filed a final accounting in [Brenda's] estate and a petition to be discharged as executor." Id. at ----, 2018 WL 718626, at *3. "[A]s provided in the [2008] decree, Knox prepared the estate accounting and presented it in camera to the chancellor, D.A., and D.A.'s guardians, the Langs." Id.

¶11. In March 2016, the chancery court denied Claire's August 2015 "petition for a full accounting of [Brenda's] estate and testamentary trust," acknowledging the court's prior ruling "that Claire would be entitled to an accounting 'if and when she [became] a vested remainder beneficiary' of [Brenda's] estate." Id. Claire filed a motion for reconsideration, which the chancery court denied. Id.

¶12. The Court of Appeals reversed the chancery court's order denying Claire and Jane's request for an accounting, finding that Brenda's will gave Claire and Jane a shifting executory interest in the assets of the testamentary trust. Flowers , --- So.3d at ----, 2018 WL 718626, at *4. And "[a]s holders of a shifting executory interest in their mother's estate, Claire and Jane possess limited rights to enjoin the possessory owners from future waste of the estate." Id. (citing Hemphill v. Miss. State Highway Comm'n , 245 Miss. 33, 145 So.2d 455, 457 (1962) ).

¶13. The Estate filed a motion for rehearing, which the Court of Appeals denied. The Estate then petitioned this Court for certiorari, claiming that Claire and Jane's appeal was untimely and that the Court of Appeals misapplied caselaw related to shifting executory interests and standing to request an accounting.

STANDARD OF REVIEW

¶14. "This Court applies a limited standard of review on appeals from chancery court." Flowers , --- So.3d at ----, 2018 WL 718626, at 3 (citing Jackson v. Mills , 197 So.3d 430, 437 (Miss. Ct. App. 2016) (citing McNeil v. Hester , 753 So.2d 1057, 1063 (Miss. 2000) ) ). "If supported by substantial credible evidence, we leave a chancellor's factual findings undisturbed unless the chancellor applied an incorrect legal standard, was manifestly wrong, or was clearly erroneous." Id. (citing Jackson , 197 So.3d at 437 ) (quoting Davidson v. Davidson , 667 So.2d 616, 620 (Miss. 1995) ; citing Ainsworth v. Ainsworth , 139 So.3d 761, 762 (Miss. Ct. App. 2014) ) ). "We review questions of law de novo." Id. (citing Jackson , 197 So.3d at 437 ) (citing Lowrey v. Lowrey , 25 So.3d 274, 285 (Miss. 2009) ) ).

DISCUSSION

¶15. We hold today that the chancellor, in his discretion, correctly held that under Brenda's will, Claire and Jane have so remote an interest with such a mere expectancy of a future inheritance that they are not entitled to an accounting until that interest vests. The Court of Appeals relied on Hemphill v. Mississippi State Highway Commission , but we find that it does not apply here because that case was restricted to a consideration of constitutional rights. We granted certiorari to determine whether the chancellor abused his discretion in denying Claire and Jane's accounting request. We find the denial of that request was not an abuse of discretion, and we affirm that portion of the chancellor's judgment.

¶16. Chancellors have long been vested with discretionary authority to decide matters of equity. Article 6, section 159, of the Mississippi Constitution confers on chancery courts jurisdiction of "All matters in equity ...," as well as other enumerated matters. "A court of equity is a court of conscience. The function of the chancellor is, upon equitable considerations, to winnow the wheat from the straw, and his decree will not be set aside on appeal unless, as is not the case here, it is made to appear that it is not equitable but inequitable to let it stand." Durkin v. Lovknit Mfg. Co. , 208 F.2d 665, 667 (5th Cir. 1953).

¶17. The chancellor, in reviewing the will, found that the will's terms reflected that in creating the testamentary trust, Brenda had named D.A. the income beneficiary, with the principal to be placed in trust until D.A.'s thirtieth birthday or his death, whichever occurred earlier. Upon either D.A.'s thirtieth birthday or his death, Brenda's will directed that the trust's principal be evenly divided between D.A. and Knox "per stirpes to include adopted children."

¶18. The terms of the will also discussed disbursement of trust assets to beneficiaries who were under the age of twenty-one at the time of the trust's termination or who died before the trust's termination. Finally, establishing that D.A. and Knox were to inherit subject to a condition subsequent of survivorship, the will stated as follows:

If there are no surviving beneficiaries, descendants of deceased former beneficiaries, former beneficiaries who are living, or descendants of deceased former beneficiaries, then his or her interest shall be distributed share and share alike to the [c]onservatorships for my two daughters[, Claire and Jane;] should either one or both of them not have a [c]onservatorship at the termination of this trust[,] then distribute their portion outright to them.

¶19. Thus, Brenda's will established that if D.A. and Knox died without any descendants , then the remainder would be distributed to Claire and Jane; at that point, their interest would vest. If Knox and D.A. died today without any descendants, then Claire and Jane would be entitled to receive an accounting because their interest would vest. But affording Claire and Jane an accounting now, when the interest has not yet vested, would result in an inequitable, unjust burden on the court and furthermore on the estate.

¶20. This matter has been ongoing for the last ten years. The beginning traces back to D.A.'s birth in 2004 and his subsequent adoption in 2005 by his maternal grandparents, Richard and Brenda Flowers. After both of their deaths, custody disputes over D.A. ensued. After custody was resolved, estate disputes began. All along, both parties conceded that the will creating the trust was primarily for the benefit of D.A., and Claire and Jane fully recognized that their interest is a future interest. But they continued to disrupt, prolong, and dwindle the estate and its assets. After numerous petitions and a 616-page pleading alleging a plethora of wrongdoing by everyone involved in the case, the estate was finally nearing its closing when Claire and Jane requested yet another accounting.

¶21. Claire and Jane argue that an accounting is necessary because proof of mismanagement exists; Knox did not file annual accountings under Mississippi Code Section 91-7-277 (Rev. 2018). This Court has held, "Generally, executors and administrators are required to submit an annual accounting to the court." In re Estate of Baumgardner , 82 So.3d 592, 604-05 (Miss. 2012) (citing Miss. Code Ann. § 91-7-277 (Rev. 2004) ). But the law also recognizes that a testator may waive an accounting. Id. at 605.

¶22. As Baumgardner reiterated, "It is not error for a chancellor to refuse to order an accounting when the language of the trust expressly allows the trustee to serve without rendering an accounting." Id. (citing In re Stubbs-Kelley Trust v. Wood , 573 So.2d 734, 735-36 (Miss. 1990) ); see also Beck v. Robinson , 247 Miss. 264, 154 So.2d 284 (1963) (finding no abuse of discretion in the chancery court's decision to uphold the wish of a testator, whose will relieved the trustee from giving bond and filing any annual or final accounting when no showing was made by the cestui que trust of waste or loss to the property).

¶23. Here, Brenda's will states that the trustee "shall ... account fully and completely annually, throughout the term of this trust, to such income and/or corpus beneficiaries as there may be or[,] in the event such beneficiary is a minor or a ward, then to such beneficiary's guardian." Neither Claire nor Jane yet fall into one of these categories-irrespective of whatever remainder interest they may have in the property. Therefore, neither is entitled to an accounting absent a showing of waste, loss, mismanagement, or fraud. Beck , 154 So.2d at 288 ; Wood , 573 So.2d at 736 n.2.

¶24. Based upon our review of the record, Claire and Jane have made no such showing of mismanagement. "[A]n individual's legal interest or entitlement to assert a claim against a defendant must be grounded in some legal right recognized by law, whether by statute or by common law." SASS Muni-V, LLC v. DeSoto Cty. , 170 So.3d 441, 446 (Miss. 2015) (internal citations and quotation marks omitted).

¶25. While this Court recognizes the importance of accountings to prevent the mismanagement of estates, we do not find that Claire and Jane presented any proof of mismanagement to the chancellor. Further, D.A., the income beneficiary, individually or through his guardians never alleged mismanagement.

¶26. While Claire argues that damage to the corpus of the trust could affect her ability to take under the will, we find that absent evidence of mismanagement, courts are not responsible for ensuring that enough assets remain for remainder beneficiaries.

¶27. We agree with Judge Tindell's dissent: "It is said that all good things must come to an end. In this case, it is time for a bad thing to come to an end." Flowers , --- So.3d at ----, 2018 WL 718626, at *7 (Tindell, J., concurring in part and dissenting in part). Accordingly, the chancellor, in his discretion, appropriately decided to end the litigation here.

¶28. "If supported by substantial credible evidence, we leave a chancellor's factual findings undisturbed unless the chancellor applied an incorrect legal standard, was manifestly wrong, or was clearly erroneous." Flowers , --- So.3d at ----, 2018 WL 718626, at *3 (citing Jackson , 197 So.3d at 437 ) (quoting Davidson , 667 So.2d at 620 ; citing Ainsworth , 139 So.3d at 762 ) ). This Court holds that chancellors have long been vested with discretionary authority to decide matters of equity, and in this particular case, equity requires a denial of Claire and Jane's accounting request for such a remote interest.

CONCLUSION

¶29. Accordingly, the chancellor's ruling is affirmed. The chancellor was well within his discretionary authority to deny Claire and Jane's accounting request. To the extent the Court of Appeals held otherwise, its judgment is reversed.

¶30. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART. THE JUDGMENT OF THE LEFLORE COUNTY CHANCERY COURT IS REINSTATED AND AFFIRMED.

RANDOLPH, C.J., KING, P.J., MAXWELL AND ISHEE, JJ., CONCUR. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J., AND CHAMBERLIN, J. GRIFFIS, J., NOT PARTICIPATING.

COLEMAN, JUSTICE, DISSENTING:

¶31. The Court of Appeals held that Claire and Jane have standing to request an accounting of their mother's estate and testamentary trust. I agree with the Court of Appeals and, accordingly, would affirm. The majority agrees that Claire and Jane do, in fact, have standing. Maj. Op. at ¶ 3. However, I must, with respect, dissent, because the majority considers the merits of the sisters' request for an accounting and thereby affirms the chancery court and reverses the Court of Appeals on an issue not reached by it. While the chancellor's final judgment does rely in part on a 2008 order denying Claire's initial request for an accounting in denying the newer request by both Claire and Jane years later, Jane was not a party in 2008. Moreover, the chancellor's May 6, 2016, final Decree discussed at length the effect of the nature of the sisters' interest in the trust on their ability to bring the request for accounting. The chancellor wrote, "Claire Clements Flowers and Brenda Jane Flowers have no standing to file any pleadings or other matter in this cause."

¶32. A majority of the Court of Appeals held that Claire and Jane "have standing to request an accounting of their mother's estate and testamentary trust pursuant to their limited rights." In re Flowers v. Flowers , No. 2016-CA-00800-COA, --- So.3d ----, ----, 2018 WL 718626, at *3 (¶ 15) (Miss. Ct. App. Feb. 6, 2018) (emphasis added). Judge Tindell disagreed, writing that he would "affirm the chancellor's judgment that the [daughters] lack standing to request an accounting ." Id. at ----, 2018 WL 718626, at *8 (¶ 34) (Tindell, J., concurring in part and dissenting in part) (emphasis added). Although the Court of Appeals was divided, it agreed that the issue before it the chancellor's determination as to standing. Accordingly, the majority miscasts the case when it writes that "[w]e granted certiorari to determine whether the chancellor abused his discretion in denying the Claire and Jane's accounting request." Maj. Op. ¶ 15. The majority holds that the "chancellor was well within his discretionary authority to deny the Claire and Jane's accounting request." Maj. Op. ¶ 29. However, the record is clear that the chancellor based his denial on the perceived lack of standing rather than on the merits of the request for an accounting; he dismissed the request for lack of jurisdiction. "Standing is an aspect of subject matter jurisdiction." Hobson v. Chase Home Fin., LLC , 179 So.3d 1026, 1031 (¶ 17) (Miss. 2015). We review standing de novo. Id. Accordingly, no decision exists from the trial court that we can review for abuse of discretion.

¶33. As noted above, the majority agrees that the trial court erred in finding the sisters lacked standing. The majority writes, "We granted certiorari to determine not whether the sisters possess standing, because we agree that they do , but to determine whether the chancellor abused his discretion in denying the sisters accounting request." Maj. Op. ¶ 3 (emphasis added). Despite the majority's apparent reversal of the chancellor on the issue of standing, the majority affirms the chancellor by deciding an issue no lower court has fully addressed-the merits of the Claire and Jane's request for an accounting. For reasons more fully set forth below, I agree with the majority that the chancellor erred in finding the sisters lacked standing. However, because the chancellor's dismissal of the request for an accounting prevented the consideration of the merits of the request in the trial court-especially as to Jane-and quite possibly prevented the full development of a record to inform our consideration of the merits, I would remand the case rather than reach the merits for the first time on appeal. "One of the most fundamental and long established rules of law in Mississippi is that the Mississippi Supreme Court will not review matters on appeal that were not raised at the trial court level." Miss. Transp. Comm'n v. Adams , 197 So.3d 406, 416 (¶ 30) (Miss. 2016) ; see also Whittington v. H.T. Cottam Co. , 158 Miss. 847, 130 So. 745, 749 (1930) ("If th[e] [C]ourt will decide correctly the questions presented and briefed in cases, it will be doing well, without going out on a hunt for other questions.").

¶34. Standing is a question of law reviewed under a de novo standard. SASS Muni-V, LLC v. DeSoto Cty. , 170 So.3d 441, 445 (¶ 12) (Miss. 2015). "Standing is an aspect of subject matter jurisdiction." Hobson , 179 So.3d at 1031 (¶ 17) ; see also In re City of Biloxi , 113 So.3d 565, 570 (¶ 13) (Miss. 2013) ("[T]he question of standing is a jurisdictional issue that can be raised at any time by any party or by the Court, and the standard of review is de novo ."). "The existence of subject-matter jurisdiction ... turns on the well pleaded allegations of the complaint which are taken as true." Hobson , 179 So.3d at 1032 (¶ 17) (quoting SASS Muni-V , 170 So.3d at 445 ).

¶35. The Court has defined the requirements of standing:

It is well settled that Mississippi's standing requirements are quite liberal compared to the standing requirements set out in Article III of the United States Constitution. To have standing to sue, a party must assert a colorable interest in the subject matter of the litigation or experience an adverse effect from the conduct of the defendant, or as otherwise authorized by law. An interest is deemed colorable if it appears to be true, valid, or right. An individual's legal interest or entitlement to assert a claim against a defendant must be grounded in some legal right recognized by law, whether by statute or by common law. For a plaintiff to establish standing on grounds of experiencing an adverse effect from the conduct of the defendant/appellee, the adverse effect experienced must be different from the adverse effect experienced by the general public.

SASS Muni-V , 170 So.3d at 445-46 (¶ 13) (citations and quotations omitted).

¶36. In the case sub judice , the Mississippi Court of Appeals was divided on the issue of standing; however, it agreed about the issue presented. The Court of Appeals wrote, "Since standing is a jurisdictional issue, we review it de novo ." Flowers , --- So.3d at ----, 2018 WL 718626, at *3 (¶ 15). The Court of Appeals held that Claire and Jane "have limited rights and related standing as holders of a shifting executory interest to prevent future waste, and [it held] that the [daughters] have standing to request an accounting of their mother's estate and testamentary trust pursuant to their limited rights." Id. at ----, 2018 WL 718626, at *1 (¶ 2). The Court of Appeals, relying on In re Estate of Baumgardner , 82 So.3d 592 (Miss. 2012) and Hemphill v. Mississippi State Highway Commission , 245 Miss. 33, 145 So.2d 455 (1962), wrote that "Mississippi precedent clearly establishes that vested remainder beneficiaries of a testamentary trust have standing to file suit and that holders of a shifting executory interest have some limited rights that can provide standing to file suit." Flowers , --- So.3d at ----, 2018 WL 718626, at *4 (¶ 17). The Court of Appeals concluded that Claire and Jane "possess a shifting executory interest in their mother's testamentary trust" and, as a result, they "possess limited rights to prevent future waste." Id. at ----, 2018 WL 718626, at *4 (¶ 18).

¶37. The Court of Appeals, relying on Hemphill , recognized "an independent value and significance on future interests" that exists whether the interest is "vested or not." Id. at ----, 2018 WL 718626, at *5 (¶ 21). The Court of Appeals held that Claire and Jane's contingent remainder interest " 'has achieved status as a protectable interest for many purposes' when the 'contingent remainder is limited to an existing ascertained person'...." Id. (quoting Hemphill , 145 So.2d at 462 ). As such, the Court of Appeals wrote that "when a contingent remainder is limited to an existing ascertained person, there is no question but that the courts will recognize the interest as having present existence." Flowers , --- So.3d at ----, 2018 WL 718626, at *5 (¶ 21) (quoting Hemphill , 145 So.2d at 462 ). The Court of Appeals held that the chancellor erred in denying Claire and Jane's request for an accounting of their mother's estate and testamentary trust; "[a]s holders of a shifting executory interest in their mother's estate, Claire and Jane possess limited rights to enjoin the possessory owners from future waste of the estate." Flowers , --- So.3d at ----, 2018 WL 718626, at *5 (¶ 22). As such, the Court of Appeals reversed the chancellor's judgment finding that the daughters lacked standing to request an accounting. Id.

¶38. Judge Tindell dissented in part and wrote a separate opinion, joined by Judge Wilson. Id. at ----, 2018 WL 718626, at *7-8 (¶¶ 31-36) (Tindell, J., concurring in part and dissenting in part). Judge Tindell wrote that, while he agreed that the daughters had a shifting executory interest in their mother's testamentary trust, the language of the will "gave the [daughters] a purely executory interest that has not become possessory." Id. at ----, 2018 WL 718626, at *8 (¶ 35) (Tindell, J., concurring in part and dissenting in part). Judge Tindell reasoned, "The 'vested or not' status of the shifting executory interests is an important distinction that must be considered. And furthermore, unlike the majority, I find that the [daughters]' executory interest has never vested." Id. at ----, 2018 WL 718626, at *7 (¶ 33) (Tindell, J., concurring in part and dissenting in part). Judge Tindell, relying on Bridgforth v. Gray , 222 So.2d 670, 672 (Miss. 1969), concluded that the daughters' "executory interest remains unvested and, as a result, they lack standing necessary to demand an accounting of their mother's trust." Id. at ----, 2018 WL 718626, at *8 (¶ 35) (Tindell, J., concurring in part and dissenting in part).

¶39. In denying that the request for an accounting, the majority concludes that "[b]ased upon our review of the record, Claire and Jane have made no such showing of mismanagement." Maj. Op. ¶ 24. However, for purposes of determining the issue of standing, "[t]he existence of subject-matter jurisdiction turns on the well pleaded allegations of the complaint which are taken as true." Hobson , 179 So.3d at 1032 (¶ 17). Thus, for purposes of evaluating standing, we must accept Claire's petition alleging that Knox and others associated with the administration of Brenda's estate had mismanaged and misappropriated the estate and trust assets. Flowers , --- So.3d at ----, 2018 WL 718626, at *2 (¶ 7). Accepting Claire and Jane's petition as true, we proceed to the issue of whether they enjoy standing to request an accounting.

¶40. Claire and Jane's legal interest or entitlement to assert a claim against a defendant must be grounded in some legal right recognized by law, whether by statute or by common law. SASS Muni-V , 170 So.3d at 446 (¶ 13). The Court's opinion in Baumgardner serves as a guide to determine what type of interest Claire and Jane might have in their mother's estate. In Baumgardner , Veronica Arrington claimed that certain trusts created by her father Harold Baumgardner had been mismanaged by William Ready. Baumgardner , 82 So.3d at 596 (¶ 1). Ready denied Arrington's request for an accounting. Id. The chancery court found that the trustee should not be required to render an accounting to Arrington. Id. On appeal, Ready argued that Arrington did not have standing to bring a claim against him, because she had no colorable interest in the trusts. Id. at 599 (¶ 20). Ready also argued that under the will at issue, Arrington had only a contingent remainder interest in the trust property while Emogene [ (Harold's wife) ] was still alive-the contingency being that the trust corpus might be used to support Emogene and that the assets might have been exhausted by the time Arrington's interest vested. Id.

¶41. The Baumgardner Court wrote,

Although Arrington did not have a present possessory interest in the property at the time she filed suit, her remainder interest was vested. The law favors vesting of remainders, and a remainder interest will be contingent only if the testator clearly intended such. McClelland v. Bank of Clarksdale , 238 Miss. 557, 119 So.2d 262, 267 (1960). "A remainder interest in an irrevocable trust represents a present fixed right to future enjoyment that gives rise to a vested property interest in trust property even if that interest is subject to complete divestment or defeasance." 76 Am. Jur. 2d Trusts § 252 (2005). See also Hays v. Cole , 221 Miss. 459, 473, 73 So.2d 258, 264 (1954) ("If there is a present right to a future possession, though that right may be defeated by some future event, contingent or certain, there is nevertheless a vested estate."); McClelland , 119 So.2d at 267 ("[A] gift of a life estate with remainder to a named person creates a vested remainder on the death of the testator."). Because Arrington's interest in the trust property was vested, Ready's argument that she does not have standing because her interest was contingent has no merit.
In sum, we find that Ready's contention that Arrington did not have standing to file suit against him as trustee is without merit. Standing is determined at the commencement of the suit. Burley [v. Douglas ], 26 So.3d [1013,] 1020 [ (Miss. 2009) ]. At that time, Arrington had standing as conservator of Emogene's estate and person, and by her remainder interest in the trust property. Moreover, Ready's assertion that Arrington lacked standing because her interest in the trust property was contingent fails because Arrington had a vested remainder interest in the property.

Baumgardner , 82 So.3d at 600-01 (¶¶ 27-28).

¶42. In its writ of certiorari , the estate contends that the Court of Appeals' decision is erroneous, because it failed to apply the two part test announced in Hemphill . See Hemphill , 145 So.2d at 464 (discussing that "[t]he owner of a future interest must fulfill two requirements in order to receive compensation."). I agree with Judge Tindell's dissent to the extent that the two part test is inapplicable to the facts of the present case, which do not involve a taking. Although the two part test is inapplicable, the Hemphill Court's discussion of owners of executory interests is applicable, apart from the analysis specific to the constitutional issue of a taking. The Hemphill Court wrote that "[t]he owner of an executory interest has certain limited rights to enjoin the possessory owner from waste of the inheritance, and to recover damages for injuries which diminish substantially its value." Hemphill , 145 So.2d at 461. The Court further explained

Moreover, the owner of a future interest must have his "day in court", or its equivalent, before a claim affecting it can effectively secure judicial sanction. This rests upon the constitutional provision for due process. Hence a living owner of a future interest is generally a necessary party to any litigation affecting it. 2 Powell, Real Property, §§ 294, 295; Russell v. Federal Land Bank , 180 Miss. 55, 176 So. 737 (1937). This same principle should apply to a proceeding to condemn or take property by the state.
These characteristics illustrate "the unique feature of the concept of the future interest in Anglo-American law." It is that 'a future interest is property which now exists.' 1 American Law of Property, § 4.1. It is distinguished from a present interest in that the privilege of possession or enjoyment is future and not present. Hence "the preferred view today is that all varieties of future interests are existing interests."
This doctrine of the nature of future interests is more logical and factually consistent than the old theory of estates which took into account only so-called "vested" interests. Any interest which takes away a part of the sum total of rights, powers, privileges and immunities which go to make up a fee simple absolute is an existing interest. Ibid. , § 4.1.
Moreover, the word 'vested' is meaningless unless more precisely defined. It is often used in at least four senses: An interest in land has become possessory or is vested in possession; it is an estate, vested in interest, rather than the possibility of becoming one; it is transmissible on death; it has acquired the degree of certainty which under the Rule against Perpetuities an interest must acquire within lives in being and 21 years or fail. Leach and Logan, Cases on Future Interests and Estate Planning (1961), pp. 253, 254.
In summary, the precedent and statutory history of the law of this state place an independent value and significance on future interests, whether "vested" or not. A future interest, such as the executory one owned by appellants, is property which now exists. The privilege of possession and enjoyment is future and not present, but it is an existing interest. Furthermore, Miss. Const. Sec. 17 was intended to protect all interests in property, and to prevent the state from taking the same without due compensation to the owners.

Id. at 461-62 (emphasis added).

¶43. The Court went on,

When a contingent remainder is limited to an existing ascertained person there is no question but that the courts will recognize the interest as having present existence. The wide acceptance of that fact makes it clear that the interest is "property" in the usual sense of the word. Whether a given future interest is of a sufficiently substantial character to be given the protection of a particular constitutional guaranty would seem properly to depend upon factors other than the classification as vested or contingent.

Id. at 462.

¶44. The Court applied general property principles to the constitutional issue before it in Hemphill . Here, the same general property principles are applicable. Under Hemphill , the classification of whether Claire and Jane's future interest is "vested or not" is not dispositive. Id. Claire and Jane enjoy a contingent remainder "interest as having present existence." See id. at 461.

¶45. Ultimately, under the guide of Hemphill and Baumgardner , and in light of the Court's liberal standing requirements, I would affirm the judgment of the Court of Appeals. Jane and Claire, as contingent remainder interest holders, have standing to request an accounting, because they have a colorable interest in the subject matter of whether the estate and the trust were administered faithfully. I would affirm the Court of Appeals and would allow the matter to be remanded to the chancery court for further proceedings.

KITCHENS, P.J., AND CHAMBERLIN, J., JOIN THIS OPINION.

      Judge Carlton, J., writing. Lee, C.J., Griffis, P.J., Barnes and Greenlee, JJ., concurring. Irving, P.J., concurring in part and in the result without separate opinion. Tindell, J., concurring in part and dissenting in part with separate written opinion, joined by Wilson, J. Fair and Westbrooks, JJ., not participating.