Barnes Ex Rel. Barnes v. Jefferson Davis County School District

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2013-IA-01529-SCT
GREG BARNES, SR., ON BEHALF OF GREG
BARNES, JR., A MINOR
v.
JEFFERSON DAVIS COUNTY SCHOOL
DISTRICT; AND MINNIE RACHEL GRIFFITH
DATE OF JUDGMENT: 08/14/2013
TRIAL JUDGE: HON. ANTHONY ALAN MOZINGO
TRIAL COURT ATTORNEYS: CHUCK R. McRAE
CHRISTOPHER GREEN
RAMEL L. COTTON
COURT FROM WHICH APPEALED: JEFFERSON DAVIS COUNTY CIRCUIT
COURT
ATTORNEYS FOR APPELLANT: DAVID NEIL McCARTY
CHUCK McRAE
RAMEL LEMAR COTTON
ATTORNEY FOR APPELLEES: RICHARD D. NORTON
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: AFFIRMED AND REMANDED - 04/16/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE RANDOLPH, P.J., LAMAR AND KITCHENS, JJ.
LAMAR, JUSTICE, FOR THE COURT:
¶1. A defendant’s trial testimony referred to a document that should have been produced
in discovery but was not. In view of this revelation, the plaintiff filed two post-trial motions:
one asking for new trial, judgment as a matter of law, or to reconsider; and one asking for
sanctions for the discovery violation. The trial judge granted the motion for a new trial and
recused from it, but he declined to rule on the sanctions issue, leaving that open for the next
judge to determine. The defendants subsequently admitted liability, leaving damages the sole
issue for the new trial. Now the plaintiff appeals, claiming the trial judge ruled on the case
after he had recused from it. The plaintiff also argues that the trial court abused its discretion
by not granting judgment as a matter of law as a sanction for alleged discovery violations.
Finding no merit in either argument, we affirm the order of the trial court and remand for
further proceedings.
FACTS AND PROCEDURAL HISTORY
¶2. On October 13, 2010, Greg Barnes Jr. (“Junior”) was riding a Jefferson Davis County
School District (“Jeff Davis”) bus home from school. At one point the driver, defendant
Minnie Rachel Griffin, stopped the bus on a bridge, got out of the bus with Junior, and held
him over the edge of the bridge. After a brief exchange Griffin claims was just a joke,
Griffin put the child back on the ground, the two boarded the bus, and the route finished
without further incident. Jeff Davis superintendent Ike Haynes heard about the incident later
that evening. The next morning Haynes met with Griffin to address the incident, and at that
meeting, Griffin either quit or was fired.
¶3. On October 24, 2011, Greg Barnes Sr. sued Griffin and Jeff Davis on Junior’s behalf,
alleging that the incident had caused Junior to “suffer[] from various forms of mental
anguish, including, but not limited to, nightmares, extreme fear and mental depression.”
Barnes Sr. also alleged that Junior had incurred medical expenses, and he demanded
$5,000,000.
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¶4. Several different employee handbooks were mentioned during discovery, but neither
defendant mentioned a handbook specifically for bus drivers until Griffin mentioned it in her
trial testimony. When she was asked about the handbook she previously had identified in her
deposition testimony, the following exchange took place:
Q. Is this the handbook you’re referring to? [indicating the handbook shown
to her in the deposition].
A. No.
Q. Ma’am?
A. No.
Q. That was the handbook that –
A. School – school bus drivers have their handbooks, students got their
handbooks and the other employees have handbooks.
¶5. Barnes’s counsel then objected to Griffin testifying about the bus-driver handbook,
since that was the first time it had been mentioned, and the trial judge sustained the objection.
The proceedings continued after that brief exchange, and the trial ended that day.
¶6. On February 19, 2013, the trial court entered its opinion, ruling that Griffin and Jeff
Davis were both immune from the Barnes’s suit under the Mississippi Tort Claims Act and
dismissing the action with prejudice.
¶7. On February 27, 2013, Barnes filed a Motion for Judgment as a Matter of Law, to
Reconsider, and/or for New Trial. Barnes accused Jeff Davis and Griffin of admitting “on
the morning of the trial that [the incident actually occurred]”1 and complained about their
“contrived failure to produce the drivers’ handbook.” Barnes argued that Pierce v. Heritage
Properties, 688 So. 2d 1385 (Miss. 1997), compelled the trial court to “strike the Defendants’
1
We note that Griffin testified in her November deposition—two months before the
trial—that she held Junior over the bridge as the complaint alleged. Nonetheless, Barnes’s
motions and briefs repeatedly assert that this admission was made on the day of trial.
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answers and render a default judgment against them and assess damages,” and he also
requested that the trial court “order that the handbook and or other documents be produce[d]
forthwith and that in the alternative re-open the trial and take testimony concerning the false
testimony given.” The defendants responded to Barnes’s motion, denying that there was any
“contrived failure to produce the driver’s handbook” and maintaining that “it is not
uncommon for witnesses to give additional testimony at trial or to give testimony that is
different than their previously sworn testimony.”
¶8. Also on February 27, 2013, Barnes filed a Motion to Alter and Amend the Judgment
and to Compel Production of Documents and Sanctions. Barnes argued that he had
“requested during discovery for [sic] any manuals, books, or instructions given to [Griffin],
and [Jeff Davis] stated there was not any such book or manual.” Barnes attached the
defendants’ discovery responses and Griffin’s deposition testimony to his motion as support.
¶9. Jeff Davis and Griffin responded to the motion, arguing that there was no misconduct
on their part, and that their counsel was as surprised as anyone when Griffin testified at trial
that she had seen another handbook besides the staff handbook. They also stated that their
discovery responses were being supplemented to provide two documents that were found in
post-trial research conducted because of Griffin’s testimony: a 2008-2009 Bus Driver
Handbook, and the Mississippi Professional Driver Manual, both of which were issued to
Griffin. But they also argued that the new documents did not give rise to any “substantive
issue[s] relating to the merits of this case.”
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¶10. The trial judge held a hearing on the post-trial motions on August 5, 2013. After
Barnes’s counsel began his argument, the trial judge asked if defense counsel “believe[d] that
there was a substantial material disclosure to the plaintiffs, any discovery, since the trial?”
Defense counsel answered, “Yes, sir, Your Honor.” The trial judge then granted the motion
for a new trial, stating he did not need to know anything else.
¶11. The judge continued:
The plaintiffs did not have all of the information that they were entitled to
before the trial occurred. And whether or not that substantial disclosure has
any affect [sic] on the verdict, I can’t say. I do know this: This Court now
knows too much about the case to be fair. It would be an injustice to both
parties if this Court continued to take any more issues under consideration or
rule any further. I’m going to put you all back in the same position you were
in before the trial. And I’m going to recuse myself based on the fact that once
the testimony and evidence came to light, that the position of the Court was
compromised. And there’s no way, knowing what I know, that I could
possibly disregard what my personal feelings are about the case since I’ve
already rendered a bench verdict.
¶12. Barnes’s counsel urged the court to rule on the motion for sanctions, but the trial judge
declined, stating that “ it would be improper for this Court to rule on any issues any further
based on what I know about the case and how my personal feelings would be impossible to
ignore.” Defense counsel then sought clarification, saying, “there are really three motions
that the plaintiff has called forward today. One is a motion for JNOV and a motion to alter
or amend the judgment. I believe the Court is ruling that – I take it that the Court is going
to vacate the judgment, is that what the Court was saying?” The trial judge confirmed that
he was vacating the judgment, and that he was transferring the trial to a different judge, or
to a judge appointed by this Court, for the new trial. Defense counsel tried one more time
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to get a ruling on the sanctions issue, but the judge replied “I would really like to, but for the
third time I’m going to stand by my decision, and that is I’m not going to rule any further on
anything.”
¶13. On August 19, 2013, two weeks after the hearing, the trial judge entered an order
reflecting what he had ruled from the bench. That order listed the motions and their
dispositions as follows:
1. That Plaintiff’s Motion for Judgment as a Matter of Law is DENIED;
2. That Plaintiff’s Motion for Reconsideration is DENIED;
3. That Plaintiff’s Motion for New Trial is hereby GRANTED;
4. That the previous Opinion and Order of this Court, entered on February 19,
2013, is hereby VACATED;
That the undersigned hereby RECUSES from further proceedings in this civil
action . . . .
¶14. The trial judge also entered an order specifically on the recusal, which was filed on
August 9. That order of recusal stated, in pertinent part, that “Circuit Judge, Anthony
Mozingo, sua sponte, [] hereby recuses himself from presiding over the new trial in this
cause of action for reason of his prior involvement as judge in the first trial.” (Emphasis
added.)
¶15. On October 4, 2013, the defendants filed a second motion to amend their answer and
attached the proposed Second Amended Answer. The amended answer admitted that Griffin
was negligent and that Jeff Davis was liable for the negligent actions of its employees and
that a trial “should be held to determine the injury suffered by Greg Barnes, Jr. and the
reasonable damages the minor child is entitled to.”
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¶16. On November 27, 2013, this Court granted Barnes’s petition for interlocutory review
and stayed the trial-court proceedings.
DISCUSSION
¶17. Barnes makes two arguments on appeal. The first is that the trial court erred by
denying Barnes’s motion for discovery sanctions, and the second is that the trial judge
improperly ruled in a case from which he had recused. We find that the sanctions issue is not
properly before this Court because the trial court never ruled on that motion, and that the
recusal issue is without merit because the trial judge did not rule on the case after he recused.
I. The issue of sanctions for discovery violations is not properly before this Court.
¶18. Barnes argues that the trial court ruled on the discovery-sanctions issue when it denied
the motion for judgment as a matter of law and argues that “the only possible cure is [for this
Court] to enter judgment as a matter of law . . . .” Though the record before us is void of any
mention of monetary sanctions, Barnes’s counsel explained at oral argument that he was
seeking such sanctions; specifically, disgorgement of the attorneys’ fees that have been paid
to defense counsel.
¶19. But the trial judge ruled only on the motion for a new trial, and he flatly refused to
rule on the motion for sanctions. Barnes is asking this Court to consider an issue on which
the trial court has yet to rule, and “[w]e have been consistent in holding that we need not
consider matters for the first time on appeal, which practice would have the practical effect
of depriving the trial court of the opportunity to first rule on the issue, so that we can then
review such trial court ruling under the appropriate standard of review.” Alexander v.
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Daniel, 904 So. 2d 172, 182 (Miss. 2005). Because the trial court did not rule on this issue,
it is not properly before this Court.
II. The trial judge did not rule in the case after he recused from it.
¶20. Barnes argues that the sequence of the trial judge’s orders resulted in his ruling in the
case after he had recused from it. This Court has held that “[i]t is fundamental that, once a
recusal occurs, no judge may take further action in a case.” Mississippi Comm’n on Judicial
Performance v. Osborne, 16 So. 3d 16, 23 (Miss. 2009). “Having recused himself from a
case, a judge has no more authority to take action in that case than does the ordinary citizen
on the street.” Mississippi Comm’n on Judicial Performance v. Skinner, 119 So. 2d 294,
300 (Miss. 2013).
¶21. But here, the record is clear that the trial judge granted a new trial and recused from
presiding over that new trial. In post-trial motions, Barnes asked the trial judge for one of
three alternative dispositions: a new trial, reconsideration of the verdict, or judgment as a
matter of law. Each was mutually exclusive of the other two, so granting any one of them
necessarily meant denying the other two. Moreover, granting any one of the three motions
meant vacating the previous order.
¶22. Stated another way, three things happened automatically when the trial judge granted
a new trial: (1) the previous judgment was vacated; (2) the alternative motion for
reconsideration was denied; and (3) the alternative motion for judgment as a matter of law
was denied. The only “ruling” issued by the trial judge after his recusal was an order
memorializing the rulings he previously had made from the bench; he did not rule on the
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sanctions issue or other additional issues. And importantly, our rules require the trial court
to enter such an order. See Miss. R. Civ. P. 58 (“Every judgment shall be set forth on a
separate document . . . .”) (emphasis added); Miss. R. Civ. P. 54(a) (“‘Judgment’ as used in
these rules includes . . . any order from which an appeal lies.”). See also Banks v. Banks,
511 So. 2d 933, 934 (Miss. 1987). As such, we find that the trial judge did not “rule” on
anything after he had recused himself from the case going forward.
CONCLUSION
¶23. Both of Barnes’s assignments of error are without merit. The trial judge did not “rule”
on anything after he had recused. And the trial court never “ruled” on the issue of sanctions;
the transcript clearly shows the trial judge declined to rule on such, and nothing in the record
contradicts that. As such, that issue is not properly before this Court. We therefore affirm
the order granting a new trial and denying judgment as a matter of law, and we remand this
case to the Circuit Court of Jefferson Davis County for further proceedings.
¶24. AFFIRMED AND REMANDED.
WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS,
CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.
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