IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO CA COA WINN-DIXIE MONTGOMERY, LLC

Transcription

1 E-Filed Document Apr :07: CA COA Pages: 7 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO CA COA CYNTHIA KULJIS APPELLANT VERSUS WINN-DIXIE MONTGOMERY, LLC APPELLEE APPEAL FROM THE CHANCERY COURT OF HARRISON COUNTY, MISSISSIPPI SECOND JUDICIAL DISTRICT CAUSE NO (4) APPELLEE S RESPONSE TO MOTION FOR RECONSIDERATION DAVID W. STEWART (MS BAR NO. 9040) BRIAN C. WHITMAN (MS BAR NO ) COPELAND, COOK, TAYLOR & BUSH, P.A. POST OFFICE BOX 10 GULFPORT, MS (228) (228) (FAX) ATTORNEYS FOR APPELLEE dstewart@cctb.com bwhitman@cctb.com 1

2 ARGUMENT A. STANDARD OF REVIEW Despite the title of Motion for Reconsideration, the Defendant submits that Plaintiff s motion is more accurately characterized as a motion for rehearing under Mississippi Rule of Appellate Procedure 40. A Rule 40 motion does not allow a losing party to offer mere repetitions of her original argument where that argument was thoroughly considered and determined to be without merit. Brandau v. State, 662 So. 2d 1051, 1052 (Miss. 1995). Nor does Rule 40 allow the presentation of new arguments not raised in briefing on the merits. Id. at 1053 ( We cannot misapprehend or overlook that which is not presented for our review. ) (quoting MST, Inc. v. Miss. Chem. Corp., 610 So. 2d 299, 304 (Miss. 1992)). Rather, Rule 40 is limited to points of law or fact which, in the opinion of the movant, the court has overlooked or misapprehended. M.R.A.P. 40(a). B. THE COURT OF APPEALS PROPERLY AFFIRMED THE CHANCERY COURT S DISMISSAL OF PLAINTIFF S COMPLAINT FOR DISCOVERY The Defendant asserts that the Court of Appeals did not err in affirming the Chancery Court s dismissal of this matter. Plaintiff s Motion for Reconsideration is based entirely on one dissenting opinion in this Court s prior Opinion and the allegation that the majority ignored established case law and precedent. In her Motion, Plaintiff quoted nearly the entire dissenting opinion and simply restated her previously rejected argument. Significantly, Plaintiff has failed to state with particularity the points of law or fact which Plaintiff believes the Court has overlooked or misapprehended. This issue has been fully briefed and reviewed by this Court with no oversights or misapprehensions of fact or law. However, out 2

3 of an abundance of caution the Defendant will restate its position on the complaint for discovery, which was previously addressed in the initial briefing process. The underlying claim in this matter is one for personal injury which is beyond the subject matter jurisdiction of the Chancery Court. As the majority noted in its Opinion, regarding subject matter jurisdiction between the Circuit and Chancery Court, it is the substance of the action that should be controlling on the issue, not its form or label. Briggs & Stratton Corp. v. Smith, 854 So. 2d 1045, 1049 (Miss. 2003). Based upon the allegations in the Complaint, this matter is a negligence action against the Defendant for personal injuries the Plaintiff alleges she sustained on the Defendant s premises on July 27, The Mississippi Constitution provides a list of matters in which the Chancery Courts have jurisdiction. See Article 6, 159 of the Mississippi Constitution. Notably, negligence actions are not enumerated within 159. Further, the Mississippi Supreme Court has been clear in its holdings that courts of equity should not assume jurisdiction over personal injury cases. McLean v. Green, 352 So. 2d 1312, 1314 (Miss. 1977) (citing Evans v. Progressive Cas. Ins. Co., 300 So. 2d 149 (Miss. 1974) (specifically holding we have made it clear previously that courts of equity should not assume jurisdiction over claims for personal injury. ). It is an abuse of discretion for the Chancery Court to assume jurisdiction of an action at law, which should be tried in Circuit Court where the right to a jury trial is inviolate. Id. See also City of Ridgeland v. Fowler, 846 So. 2d 210 (Miss. 2003); USF&G v. Francis, 825 So. 2d 38 (Miss. 2002); Southern Leisure Homes, Inc. v. Hardin, 742 So. 2d 1088, 1090 (Miss. 1999); Leaf River Forest Prods., Inc. v. Deakle, 661 So. 2d 188 (Miss. 1995); Blackledge v. Scott, 530 So. 2d 1363 (Miss. 1988). The Court has been clear that in cases where some doubt may exist as to the legal or equitable nature of the 3

4 case, the case should be tried in Circuit Court. Southern Leisure Homes, Inc. v. Hardin, 742 So. 2d 1088, 1090 (Miss. 1999). The present matter, despite being labeled a Complaint for Discovery, is clearly distinguishable from those cases where the use of a Complaint for Discovery has been upheld by the Mississippi Supreme Court since the enactment of the Mississippi Rules of Civil Procedure. Plaintiff cites to State Oil & Gas Board v. McGowan as controlling authority in the present matter. 542 So. 2d 244 (Miss. 1989). In McGowan, after the Oil & Gas Board denied his request for pre-administrative hearing discovery, the plaintiff filed a complaint for discovery in Chancery Court to compel the deposition of an Oil & Gas Board supervisor in conjunction with the proceeding before the Oil & Gas Board. Id. at 245. The Court stated that [t]he bill of discovery is one of the ancient bills used in equity practice. Id. at 248 (citing Griffith, Mississippi Chancery Practice, 1925, 427). In describing the purpose of the bill of discovery, the Court quoted the following portion of Griffith s Mississippi Chancery Practice: But here is a distinct bill in chancery known...as the bill of discovery, by the use of which disclosure may be required of material facts exclusively within the knowledge or possession of the defendant and which without such discovery no full and adequate proof of them could be made. Id. (Emphasis Added). The Court stated that the adoption of the Mississippi Rules of Civil Procedure affected procedure, not substance, and further that [t]he need for this substantive remedy is evident by this lawsuit. Id. at 249. As such, the Court concluded that In appropriate cases, a pure bill of discovery will lie and statutory remedies may be available to the end that due process be afforded. Id. (Emphasis Added). The Defendant maintains that a personal injury negligence claim is not such an appropriate case. The Court in McGowan was 4

5 addressing a pre-administrative hearing in which the Mississippi Rules of Civil Procedure did not apply, a situation significantly distinguishable from the present matter. In Moore v. Bell Chevrolet, Pontiac, Buick, GMC, LLC, 864 So. 2d 939 (Miss. 2004), the Supreme Court held that [a] complaint for discovery exists as a proper means to seek discovery in conjunction with administrative proceedings. Id. at 947. (Emphasis Added). However, the Court held that prior to seeking a complaint for discovery, a party must demonstrate they were diligent or made reasonable efforts to exhaust other avenues of obtaining the information without proceeding to trial on a complaint for discovery. Id. The Defendant maintains that the present matter is distinguishable from McGowan and Moore as it is not in conjunction with an administrative proceeding where the Rules of Civil Procedure are inapplicable. Instead, this is an action that should be before the Circuit Court where the need for this substantive remedy was rendered moot by the adoption of the Rules of Civil Procedure. Further, the Defendant would assert that for the purposes of a negligence action, other avenues of obtaining the information without proceeding to trial on a complaint for discovery would include filing an action in Circuit Court. Plaintiff also asserts that a Complaint for Discovery is still a viable tool for procuring discoverable information. The Defendant does not dispute availability of a Complaint for Discovery to individuals situated in the appropriate circumstances. However, the present matter does not meet the criteria set out by the Mississippi Supreme Court and this Court to justify the perpetuation of this matter. Finally, the Defendant asserts that the Court should consider the need for judicial economy and consistency in allowing a Complaint for Discovery to proceed in Chancery Court, where the underlying action is one for personal injury. Specifically, the Plaintiffs have 5

6 propounded a broad request for information concerning the underlying personal injury claim, which the Defendant asserts may include information that exceeds the scope of discovery under Rule 26 of the Mississippi Rules of Civil Procedure, information created or obtained in anticipation of litigation; information which constitutes work product and/or the mental impressions, conclusions, opinions, or legal theories of counsel or other representative of the Defendant; information which is not relevant to any claims or defenses of any party to the underlying personal injury claim; and matters protected by the attorney-client privilege. The Defendant asserts that the need for judicial economy and consistency weighs heavily in favor of having these discovery issues, and any discovery dispute that arises, determined in the Circuit Court, where the underlying personal injury action will be prosecuted. CONCLUSION The Defendant asserts that the present matter is at its heart, a personal injury action over which the Chancery Court lacks subject matter jurisdiction. Further, the Defendant asserts that the present matter is distinguishable from those cases in which the Mississippi Supreme Court has upheld the continuing use of a Complaint for Discovery. Finally, the Defendant asserts that considerations of judicial economy and consistency in discovery rulings compel that this matter be dismissed, so that any discovery dispute can be determined in the Circuit Court where the underlying civil action will be prosecuted. This the 11 th day of April, BY: BY: Respectfully submitted, WINN-DIXIE MONTGOMERY, LLC COPELAND, COOK, TAYLOR & BUSH, P.A. /s/ David W. Stewart DAVID W. STEWART, MSB No BRIAN C. WHITMAN, MSB No

7 C E R T I F I C A T E I, David W. Stewart and/or Brian C. Whitman, the undersigned, of the law firm of Copeland, Cook, Taylor & Bush, P.A., do hereby certify that I have this date mailed, postage prepaid, a true and correct copy of the within and foregoing Brief of Appellee to: James K. Wetzel, Esq. James K. Wetzel & Associates Post Office Box I Gulfport, Mississippi Honorable Carter Bise, Chancellor Post Office Box 1542 Gulfport, Mississippi This, the 11 th day of April, /s/ David W. Stewart DAVID W. STEWART BRIAN C. WHITMAN David W. Stewart Brian C. Whitman Copeland, Cook, Taylor & Bush, P.A. Post Office Box 10 Gulfport, Mississippi (228) (228) (Fax) 7