Anthony Watson v. Margaret Johnson
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2001-CA-01400-COA
ANTHONY WATSON
APPELLANT
v.
MARGARET JOHNSON
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
04/10/2001
HON. JAMES E. GRAVES JR.
HINDS COUNTY CIRCUIT COURT
JONATHAN B. FAIRBANK
WILLIAM C. GRIFFIN
JULIETTE VERONICA WILSON
CIVIL - PERSONAL INJURY
GRANTED RENEWED MOTION FOR
SUMMARY JUDGMENT AND DISMISSED
WITH PREJUDICE
AFFIRMED - 12/17/2002
BEFORE KING, P.J., IRVING, AND BRANTLEY, JJ.
BRANTLEY, J., FOR THE COURT:
¶1.
Anthony Watson sued Margaret Johnson for damages arising from an automobile accident. The
Hinds County Circuit Court entered an order for summary judgment in favor of Johnson. Watson appeals
to this Court asserting that the trial court erred in its grant of summary judgment. Finding no error, we
affirm.
FACTS AND PROCEDURAL HISTORY
¶2.
The evidence is uncontradicted that Anthony Watson and Margaret Johnson were involved in a
collision of their motor vehicles on April 26, 1995. On April 23, 1998, Watson filed a complaint,
maintaining that the accident was caused by Johnson's negligence and that, as a result, he was injured.
Watson particularly sought compensation for past and future medical expenses incurred to treat the injury,
for physical pain and suffering, for mental pain and suffering, for property damage to his automobile, and
for loss of enjoyment of life. On September 21, 1998, Johnson countered denying any negligence in the
matter and stated that she was without sufficient knowledge to form a belief as to the truth of Watson's
allegation that he was injured or suffered any damages. At this time, Johnson also filed interrogatories and
requests for production of documents. ¶3.
Watson did not respond to Johnson's interrogatories and
requests for production of documents and on January 13, 1999, Johnson filed a motion to compel
discovery, which was granted in an order dated March 8, 1999, wherein, the court ordered Watson to
respond to discovery by March 18, 1999. After an agreed extension between the parties, on March 26,
1999, Watson replied to the interrogatories and provided medical records.
¶4.
In his answers, he specifically stated how the accident occurred, listed damages and injuries,
particularly claiming compensatory damages for pain and suffering in his lower back, neck, and both legs
from the aggravation of existing injuries, for costs and repairs of his automobile, for mental suffering and
exacerbation of his depression, and for past and future medical expenses. Watson further stated that the
persons listed in the police report, his parents and children, and his physicians could bear witness to the
allegations in his complaint. In addition, Watson stated that his medical providers could bear witness to
the expenses that he has incurred in the treatment of his injuries, but that due to his pre-existing injuries he
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was segregating those expenses relating to this collision and would supplement his answer in a timely
manner. He did not list or identify the medical providers or the individuals listed in the police report. As
to Johnson's request for a list of Watson's expert witnesses, Watson stated that he "has not yet decided
those persons he will call to render expert testimony at trial."
¶5.
In response to the request for documents, Watson produced medical records dating from 1992
to 1997. The records that pre-date the accident are related to treatment for injuries from a slip and fall
accident which occurred on May 20, 1992, and an accident which occurred on July 7, 1992, where
Watson's automobile was rear-ended by a city bus. The records that post-date the accident specifically
note that the treatment and accompanying bills pertain to a work-related accident which occurred on May
20, 1992. The records do not state that the treatment or bills relate to the accident in question. There is
no indication from the medical records that Watson had been treated or diagnosed for injuries resulting from
the April 1995 accident.
¶6.
As a result, on April 12, 1999, Johnson inquired by letter into the omission of any medical
providers for the claimed injuries of the accident in question. On April 15, 1999, via hand delivery,
Watson's counsel forwarded medical documents and a letter to the defense stating that all medical records
in his possession concerning Watson had been submitted. The attached second set of produced records
were identical to the documents previously produced.
¶7.
Subsequently, on July 16, 1999, Johnson filed a motion to dismiss or in the alternative for summary
judgment. In the motion, Johnson requested that the case be either dismissed for failure to comply with the
court's order compelling discovery or, alternatively, that summary judgment be granted because no genuine
issue of material fact existed. This motion is noted in the index, but does not appear in the record. In
response, Watson stated that he intended to introduce testimony of Dr. Pierre, his treating chiropractor,
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to testify as to the culpability of the various accidents in producing Watson's back pain. He further claimed
that the produced medical records support his claim that pre-existing injuries were aggravated and that the
medical records created a factual issue as to whether the treatment after the accident related to those prior
accidents or to the accident in question. He also claimed that his testimony is credible and that he will
testify at trial that the accident aggravated his injuries.
¶8.
On October 8, 1999, in a brief order, the trial court denied Johnson's motion to dismiss or in the
alternative summary judgment. A transcript of the hearing does not appear in the record and the circuit
court did not give a detailed reasoning for its decision. Subsequently, on December 13, 1999, the trial
court determined that the dispute was appropriate for mediation and therefore, entered an order of referral
requiring the parties to complete the mediation in good faith by January 30, 2000. An order was later
granted to continue the completion of mediation. The first session of mediation occurred on June 14, 2002.
After approximately one hour had passed, the mediator ended the session when Watson abruptly left the
room because of an illness. There is no transcript available of the meeting. A second session was
scheduled for July 17, 2000, but according to Johnson, Watson stated that he would only attend the session
if negotiations began at $1,000,000. When these terms were rejected by Johnson, Watson refused to
participate. The mediator then concluded that scheduling any future mediation sessions would be pointless.
¶9.
On August 4, 2000, Johnson properly noticed Watson for a deposition on September 13, 2000,
and stated that the set date would not be changed unless Watson gave a precise alternate date. On the
morning of the deposition, Watson's counsel informed Johnson that Watson would not be able to attend
the deposition because Watson was "hearing too many voices in his head." Johnson's counsel informed
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Watson's counsel that he was going to proceed regardless of Watson's attendance. Watson's counsel
appeared for the deposition without him and a record was made of his absence.
¶10.
Consequently, on January 17, 2001, Johnson filed a renewed motion for summary judgment or,
in the alternative, motion for dismissal for failure to appear at a deposition or to compel appearance at a
deposition or, in the alternative, a motion for sanctions for failure to appear at a court ordered mediation.
Johnson, moved for summary judgment on the grounds that no genuine issue of material fact existed as to
Watson's claims that he sustained injuries and/or any measure of damages whatsoever. In particular,
Johnson contended that, notwithstanding the court's order compelling discovery and mediation, to date no
credible evidence had been proffered to support Watson's claims that he sustained any measure of damages
whatsoever in the accident from which this lawsuit arises.
¶11.
In response, Watson stated that he would present evidence that the exhibits dated 1995 to 1997
are for the treatment of the aggravation of his back condition and that when competent to testify he would
present evidence as to his pain, suffering and mental anguish and property damage. Furthermore, Watson
stated that he would still be able to produce testimony that the accident happened, that Johnson's negligence
contributed to the accident, and that he suffered some injury as a result. Watson also readily agreed to
appear at another scheduled deposition.
¶12.
On April 10, 2001, a final judgment of dismissal with prejudice was entered. Wherein, the court
stated that after considering the pleadings, evidence, and arguments of counsel, summary judgment was
appropriate as a matter of law. No other details were given for the ruling and no record was made of the
motion hearing. Following this order, Watson filed a motion to reconsider on April 20, 2001, and on
August 7, 2001, an order was entered denying the motion to reconsider after considering the pleadings and
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the arguments. Thereafter, Watson filed his notice of appeal on August 29, 2001, of the summary judgment
and the order denying the motion to reconsider.
ANALYSIS
¶13.
The lower court is vested with the discretion to grant a summary judgment “if the pleadings,
depositions, answers to interrogatories and admissions on file together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Collier v. Trustmark Nat’l Bank, 678 So. 2d 693, 695 (Miss. 1996); M.R.C.P. 56. The
standard of review on appeal when a trial judge grants a motion for summary judgment allows this Court
to review the record de novo to determine if there was error on the part of the trial judge in granting the
motion. Id. In a motion for summary judgment, the movant and non-movant maintain burdens of
production paralleling their burdens of proof at trial. Id. at 696. ¶14. In a negligent action, the plaintiff
bears the burden of producing evidence sufficient to establish the traditional elements of duty, breach of
duty, proximate cause and injury. May v. V.F.W. Post No. 2539, 577 So. 2d 372, 375 (Miss. 1991).
Therefore, when summary judgment is sought by the defendant, the court must determine whether the
plaintiff has produced supportive evidence of significant and probative value; this evidence must show
injury, that the defendant breached the standard of care and that such breach was the proximate cause of
her injury. Palmer v. Anderson Infirmary Benev. Ass’n., 656 So. 2d 790, 794 (Miss. 1995).
¶15.
These thoughts in mind, we turn to apply the law regarding Johnson’s alleged liability to the facts
before us, viewed most favorably to Watson. In the present case, Johnson asserted that no evidence was
submitted to support the damage element of the negligence action. The other elements of negligence were
not targeted by Johnson’s renewed motion for summary judgment. Therefore, we specifically look to the
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record to see if there was a basis from which a jury could reasonably conclude that damages existed as a
result of the accident in question.
¶16.
As stated, Watson’s answer to interrogatories include contentions of how the accident occurred
and the alleged compensatory damages, such as aggravation of existing injuries, costs of repairs of his
automobile, pain and suffering, mental suffering and aggravation of his depression, and past and future
medical expenses. He further stated that his medical providers could bear witness to the expenses that he
has assumed in the treatment of injuries, that his parents and children are personal witnesses to his pain,
suffering, and depression, and that the witnesses listed on the police report had knowledge pertaining to
the accident. Watson also stated that he would supplement his answers in several areas. In particular, he
stated that as to the medical bills he still was segregating those expenses related to the collision in question
and those expenses that were due to pre-existing injuries. He further stated that he had not yet determined
those persons he will call to render expert testimony at trial.
¶17.
In addition, in Watson’s response to Johnson’s first motion for summary judgment, Watson stated
that he intended to call Dr. Pierre, his chiropractor, to testify as to the culpability of the various accidents
in regard to Watson’s back pain. He also claimed that the medical records supported his claim that preexisting injuries were aggravated and created a factual issue as to whether treatment which occurred after
the accident related to those prior accidents or to the accident in question.
¶18.
As stated, Watson claims that these sworn statements in his answers are sufficient to create an issue
as to whether he sustained any damages. “To have power to generate a genuine issue of material fact,” the
“affidavit or otherwise” (e.g., depositions and answers to interrogatories) must: (1) be sworn; (2) be made
upon personal knowledge; and (3) show that the party providing the factual evidence is competent to
testify. Magee v. Transcontinental Gas Pipe Line Corp., 551 So. 2d 182, 186 (Miss. 1989). In the
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present case, Watson's answers to interrogatories are sworn, made upon personal knowledge, and Watson
appeared to be competent at the time his answers were submitted. However, the Mississippi Supreme
Court in Travis v. Stewart, 680 So. 2d 214 (Miss. 1996), in dealing with the issue of the proof necessary
to support a summary judgment, stated that bare assertions are simply not enough to avoid summary
judgment. The non-movant may not rest upon allegations or denials in his pleadings.” Travis, 680 So. 2d
at 218. A non-moving party must show more than a mere scintilla of colorable evidence, i.e., they must
produce evidence upon which a fair-minded jury could find for them. Van v. Grand Casinos of
Mississippi, Inc., 767 So. 2d 1014, 1018 (¶7) (Miss. 2000). Unsubstantiated assertions are not enough.
Id.
¶19.
We now look to see if Watson presented any evidence to support the above assertions. As to the
property damage claim, Watson only asserted that the right front of his vehicle was damaged and that he
would “timely” provide the monetary amount. Watson never supplemented his answer. He also never
provided any photographic evidence of the claimed property damage. He further never provided his own
opinion or another's as to the value of the automobile prior to the accident or an opinion of the value of the
automobile after the accident. More importantly, there were no bills of repair submitted, no affidavits
provided from mechanics who repaired the vehicle, and no affidavits provided from the witnesses listed on
the police report stating that there was visible automobile damage. In addition, he never provided any
information concerning repairs and that the repairs, if any, were reasonable and necessary.
¶20.
As to the personal injury claim, Watson did not provide any medical evidence that he suffered
personal injuries from the accident in question other than a series of medical bills that he reported to be
related to the accident. However, after review, each record states that the treatment was for an injury that
occurred in 1992, three years before the accident in question. No diagnosis of any claimed injury to his
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body as a result of the accident by any medical provider was presented either in the records post dating
the accident or by affidavit at the time of the renewed summary judgment hearing. Furthermore, no
affidavits were presented from any witnesses that Watson sustained any injuries whatsoever to support his
assertions. Although, he stated in his response to Johnson's first motion for summary judgment, that his
chiropractor, Dr. Pierre, would testify as to the bills relating to the 1995 accident in question, no testimony
from Dr. Pierre was ever presented. In addition, Watson never supplemented his answers as to his
personal injury claims as he stated he would in March of 1999.
¶21.
We also note that although it does not appear in the record that a trial date had been set or that a
discovery schedule had been given, the trial judge did grant an order to compel discovery in March of 1999
and entered an order in December of 1999 to seek and complete mediation in good faith. In addition, as
of January 17, 2001, Watson still had not supplemented his answers or provided the required proof to
substantiate his claims of property damages and personal injuries. Watson also never sought a continuance
to obtain evidence that would substantiate his claims of damages and injuries.
¶22.
Watson was required to bring any information he could attain to the court’s attention prior to the
summary judgment hearing. Watson also had an obligation to present the type of evidence that would
support his assertions before the hearing on the renewed summary judgment motion since it appears to have
been readily available. Since he did not, we must presume any evidence that he failed to present was
detrimental to his case. Herrington v. Leaf River Forest Products, Inc., 733 So. 2d 774, 779 (¶19)
(Miss. 1999). The time when Watson could have submitted evidence to support his claim is past. As the
Supreme Court has stated before, the hearing on a summary judgment motion is the flashpoint when the
plaintiff’s proof is evaluated. Brewton v. Reichold Chemicals, Inc., 707 So. 2d 618, 620 (¶6) (Miss.
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1998). Since Watson failed to provide the lower court with sufficient evidence to support his claim at the
hearing, there were no factual questions in issue over which reasonable jurors could disagree.
¶23.
Furthermore, regarding summary judgments, the Mississippi Supreme Court has stated:
In our view, the plain language of Rule 56(c) mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party's case, and
on which that party will bear the burden of proof at trial. In such a situation, there can be
"no genuine issue as to any material fact," since a complete failure of proof concerning an
essential element of the nonmoving party's case necessarily renders all other facts
immaterial. The moving party is "entitled to judgment as a matter of law" because the
nonmoving party has failed to make a sufficient showing on an essential element of her case
with respect to which she has the burden of proof.
Galloway v. Travelers Ins. Co., 515 So. 2d 678, 683 (Miss. 1987).
¶24.
In the present case, we conclude that according to the record Watson was given ample time to
present any evidence substantiating his claims of damages and personal injuries and that in that time period
he failed to bring forward any significant probative evidence demonstrating the existence of a triable issue
of fact as to the claims of damages or injuries to meet his burden. See Phillips v. Hull, 516 So. 2d 488,
491 (Miss. 1987). Watson had a duty to be more diligent and his unsubstantiated assertions were not
enough to prevent summary judgment. Therefore, we find that the trial judge did not err in finding that
summary judgment was appropriate, and accordingly, we affirm the decision of the trial court.
¶25. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED. ALL
COSTS ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
IRVING, MYERS AND CHANDLER, JJ., CONCUR.
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