Opinion
No. 2004-CT-01905-SCT.
October 26, 2006.
COURT FROM WHICH APPEALED: TATE COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. ANDREW C. BAKER, DATE OF JUDGMENT: 06/14/2004
DISPOSITION: THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE JUDGMENT OF THE CIRCUIT COURT IS REINSTATED AND AFFIRMED
ATTORNEY FOR APPELLANT: GERALD W. CHATHAM, SR
ATTORNEYS FOR APPELLEE: FRANCES R. SHIELDS, AMANDA B. QUAVE, WILLIAM C. GRIFFIN
EN BANC.
¶ 1. This case is before us on writ of certiorari from a judgment of the Court of Appeals which reversed and remanded the trial court verdict. Penelope Ann Payne sued Max D. Whitten for injuries she received in a one-car accident in Tate County. In his answer, Whitten raised as an affirmative defense Payne's contributory negligence. During the trial, Whitten for the first time, provided testimony to support this defense. The following day Payne's attorney requested a mistrial or other sanction, arguing Whitten's testimony violated the rules of discovery. The circuit judge denied relief. The jury returned a verdict in favor of Payne, but found her guilty of contributory negligence and assigned her thirty percent of fault. In accordance with the jury's verdict judgment was entered for Payne for $20,000. On appeal, a divided Court of Appeals reversed the judgment of the trial court and remanded the case for a new trial. Payne v. Whitten, No. 2004-CA-01965-COA (Miss.Ct.App. 2006). Finding that the trial court's denial ofa mistrial or other relief was within its discretion, we reverse the judgment of the Court of Appeals and reinstate and affirm the judgment of the Circuit Court of Tate County.
FACTS
¶ 2. On March 17, 2001, Max D. Whitten was driving a Chevrolet truck down Veazey-Smith Road in Tate County, Mississippi. Whitten lost control of the vehicle, and as a result the truck went off the edge of the road and rolled approximately three times. Penelope Ann Payne was the sole passenger in Whitten's truck when the accident occurred. On December 14, 2002, Payne sued Whitten for negligence. In his answer, Whitten claimed contributory negligence stating "the Plaintiff was partially at fault in causing the accident in question and her resulting alleged damages."
¶ 3. Payne propounded interrogatories which were timely answered by the defendant. The following was included in Whitten's interrogatory responses:
INTERROGATORY NO. 10: Describe in your own words how the collision occurred and state specifically and in detail what the claim or contention of the Defendant will be regarding any cause or contributing cause of the collision, including a statement in detail of the facts or information upon which this contention is based.
RESPONSE: The accident happened when I was headed east on Veazey-Smith road which is a 2-lane road made of white rock and tar. As I started up a hill, I got over to the left, and then overcorrected my position in the road and went onto the right shoulder of the road which gave way causing the right front of my vehicle to drop.
¶ 4. During Whitten's deposition, he was not questioned about his claim of contributory negligence only how the accident occurred. Whitten's deposition response was similar to his interrogatory response. He stated that he had gotten over too far to the left and when he tried to get back over, he overcorrected and the shoulder on the right gave way causing him to lose control.
¶ 5. At trial, during cross-examination Whitten was asked what Payne was doing immediately prior to the accident. Whitten testified that Payne had been on his side of the truck kissing him just before the accident occurred. Payne's attorney cross-examined Whitten extensively about his previous statements in which he had never mentioned that Payne was kissing him. The following day, Payne's attorney requested a mistrial or sanctions, arguing that Whitten's statements prejudiced his client due to his surprise revelation of a cause of the accident in light of his evasive or incomplete answers to interrogatory and deposition questions. Whitten argued that Payne's attorney failed during discovery to ask questions regarding Payne's actions prior to the accident. The circuit court judge denied Payne's motion for a mistrial or sanctions stating.
This is not unusual. I have tried lots of cases, and I have never seen cases doing the exact script. There's going to be variations in testimony, and that's all I see . . . I don't see anything here that would warrant the Court to consider a mistrial or sanctions.
The jury found Whitten to be 70% liable and Payne 30% contributorily negligent. Damages were assessed at $20,000. The Court of Appeals reversed and remanded for a new trial.
ISSUES
1. Whether the Circuit Court Committed Error in Denying Payne's Motion for Mistrial or Sanctions, and in Rejecting Payne's Argument That Certain Testimony on the Part of Defendant Constituted a Discovery Violation Which Prejudiced the Plaintiff.
2. Whether the Error, If Any, Was Caused by Plaintiff's Own Counsel in That the Testimony Was Elicited During the Plaintiff's Questioning of Whitten.
STANDARD OF REVIEW
¶ 6. "Trial courts have considerable discretion in discovery matters and decisions will not be overturned unless there is an abuse of discretion." Allen v. Nat'l Passenger R.R. Corp., 934 So.2d 1006, 1009 (Miss. 2006).
DISCUSSION
I. Whether the Circuit Court Committed Error in Denying Payne's Motion for Mistrial or Sanctions, and in Rejecting Payne's Argument That Certain Testimony on the Part of the De fe ndant Constituted a Discovery Violation Which Prejudiced the Plaintiff.
¶ 7. Payne argued that Whitten's trial testimony caused total and complete prejudice due to his surprise revelation of a cause of the accident in light of his evasive or incomplete answers to interrogatory and deposition questions. Whitten argued that his testimony remained consistent throughout the litigation. Whitten argued that despite his notifying opposing counsel in his complaint of a contributory negligence defense, trial was the first time he was asked about Payne's actions leading up to the accident. The trial judge found that neither a mistrial nor sanctions were warranted. He found that the discovery responses were incomplete but not untruthful or unusual.
¶ 8. Payne sought relief under Mississippi Rules of Civil Procedure 37(e). The rule allows sanctions for discovery violations "as may be just" in response to abuses in "seeking, making or resisting discovery." It is only in extreme circumstances that a trial court shoulddismiss a suit for failure to comply with discovery requirements. Pierce v. Heritage Props., Inc., 688 So.2d 1385, 1388 (Miss. 1997).
¶ 9. In Denman v. Hardy, 437 So. 2d 426, 429 (Miss. 1983), this Court summarized the general premises of discovery violation sanctions. The Court provided:
(1) If a party totally fails to respond to an interrogatory or his response is of absolutely no substance, subsection (d) of § 13-1-237 requires no prior order before imposing sanctions;
(2) If a party gives an incomplete or evasive answer to a discovery request, subsection (d) requires a prior order compelling discovery before sanctions may be imposed;
(3) If the discovering party would have had no way of determining that a response should have been supplemented, then, the court may impose sanctions under its inherent power even in the absence of a prior order.
¶ 10. In 1981, this Court supplanted Miss. Code Ann. Section 13-1-237 when it promulgated Miss. R. Civ. P. 37. The inherent power mentioned in number three above is codified in Miss. R. Civ. P. 37(e). The Denman Court noted that a court may deny sanction relief where a party had knowledge of a discovery violation and failed to bring it to the attention of the court.
¶ 11. In Denmam, the chancellor allowed defendant's expert to testify despite defendant's evasive interrogatory response. The plaintiff had knowledge of the incomplete or evasive answer, and "should have sought an order compelling a more detailed response . . . or sought a discovery deposition. Since the [plaintiff] failed to do so, a sanction was properly denied." Denman, 437 So.2d at 429.
¶ 12. Miss. R. Civ. P. 37 (a)(2) provides, "If . . . a party fails to answer an interrogatory . . . the discovering party may move for an order compelling an answer. . . ." Subsection (3) further provides, "an incomplete answer is to be treated as a failure to answer."
¶ 13. In Caracci v. International Paper Co., 699 So. 2d 546 (Miss. 1997), this Court admonished the trial court's exclusion of testimony and stated that opposing counsel's notice of the offending testimony eliminated any concern over "trial by ambush." "Knowing that an interrogatory response is not under oath and waiting until trial to bring this violation to a court's attention is `trial by surprise' . . . a method of practice that was buried with the 1982 adoption of civil procedure." Id. at 555. When a party is aware of an incomplete or evasive discovery response, that party should take affirmative action by seeking an order compelling discovery pursuant to Miss. R. Civ. P. 37 (a)(2).
¶ 14. Whitten notified Payne of a contributory negligence defense in his Answer to the Complaint by way of two separate affirmative defenses. Whitten clearly identified Payne as a contributing cause of the accident when he stated: "The Plaintiff was partially at fault in causing the accident in question and her resulting alleged damages." Payne did question Whitten about contributory negligence defense by way of Interrogatory No. 10. Interrogatory No. 10 asked first, how the accident occurred and second, the basis of any claim of a contributing cause, clearly violating Miss. R. of Civ. P. 33(a), which restricts interrogatories to a single question.
¶ 15. Whitten's response to Interrogatory No. 10 addressed the first question "how the accident occurred" but failed to address any basis for his contributory negligence defense. Because Payne had notice of Whitten's contributory negligence defense, upon review of the answer to Interrogatory No. 10, Payne should have moved the circuit court to compel Whitten to provide a more complete answer. Further, Payne took a discovery deposition of Whitten. Yet, at his deposition, Whitten was never asked about contributory negligence.
¶ 16. In Pierce, the trial court dismissed the action with prejudice after finding misrepresentations in the discovery process. Pierce, 688 So. 2d at 1390. In Pierce, this Court recognized that consideration of sanctions for discovery violations should focus "on the intentional nature, as well as the pattern of the plaintiff's conduct. . . ." Id. at 1389. "Another consideration is whether the other party's preparation for trial was substantially prejudiced." Id.
¶ 17. There is no evidence that Whitten's interrogatory response was intended to mislead opposing counsel, and Whitten clearly did not exhibit a pattern of such. Further there is no indication that Payne was prejudiced by Whitten's incomplete answer to Interrogatory No. 10.
¶ 18. Further, we find that there is no indication of how Payne's trial strategy would have changed in the event Whitten had divulged the kissing episode at an earlier stage in the litigation process. Payne's own question indicates knowledge of the allegation. Payne took advantage of the opportunity to impeach Whitten who was cross-examined extensively about his previous statements in which he had never mentioned that Payne was kissing him. Payne was still available to testify as to whether or not she had not been kissing Whitten at the time of the accident. If this Court granted Payne a mistrial, the situation would remain the same. In the second trial, Whitten could again be impeached with his previous statements, and Payne would again be offered the opportunity to testify.
II. Whether the error if any was caused by Plaintiff's own counsel in that the testimony was elicited during the Plaintiff's questioning of Whitten
¶ 19. Whitten's testimony about Payne's romantic overtures occurred during cross-examination by Payne's attorney. The general rule is that if you ask the question, you have to be prepared for the answer. "[C]ounsel must have a good faith basis for any question asked on cross examination." Flowers v. State, 773 So.2d 309, 326 (Miss. 2000). Payne was clearly notified of Whitten's contributory negligence defense, and it appears that Payne knew of the kissing incident. Despite no mention in the complaint, interrogatory answers, or deposition, at trial Whitten was asked "well, I mean was she making romantic advances toward you? . . . What was she doing? . . . Well, did y'all kiss?"
¶ 20. "It is axiomatic that a defendant cannot complain on appeal concerning evidence that he himself brought out at trial. . . . As the Court stated pithily in Reddix v. State, 381 So.2d 999, 1009 (Miss.) . . .: `If the defendant goes fishing in the state's waters, he must take such fish as he catches.'" Fleming v. State, 604 So.2d 280, 289 (Miss. 1992) (internal citations omitted) (holding that defendant waived error of admission of hearsay testimony when he elicited it himself). We find that this is exactly what occurred in the case at bar. Accordingly, there is no error.
CONCLUSION
¶ 21. This Court finds that the trial judge did not abuse his discretion by denying Payne a mistrial or other relief for Whitten's discovery violations. For the reasons stated, we reverse the Court of Appeals' judgment and reinstate and affirm the judgment of the Circuit Court of Tate County.
¶ 22. THE JUDGM ENT OF THE COURT OF APPEALS IS REVERSED, AND THE JUDGMENT OF THE CIRCUIT COURT IS REINSTATED AND AFFIRMED. WALLER, P.J., DIAZ, EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. COBB, P.J., AND GRAVES, J., NOT PARTICIPATING.