Kinard v. Morgan

• Decision Date: 08 August 1996
• Docket Number: No. 92-CA-01253-SCT,92-CA-01253-SCT
• Citation: 679 So.2d 623
• Parties: Robert L. KINARD, v. Ralph MORGAN.
• Court: Mississippi Supreme Court

Page 623

679 So.2d 623

Robert L. KINARD, v. Ralph MORGAN.

No. 92-CA-01253-SCT.

Supreme Court of Mississippi.

Aug. 8, 1996.

Danny K. Clearman, Decatur, for Appellant.

Robert D. Jones, Jordan & Jones, Meridian, for Appellee.

En Banc.

PITTMAN, Justice, for the Court:

Statement of the Facts

On March 1, 1990, Clarence Boone Agency, acting through William Edward Boone, had an Exclusive Listing Contract with landowner Ben McKibbens to sell timberland in Lauderdale County. On March 1, 1990, Boone signed a document entitled "Legally Binding Contract of the Sale and Purchase of Real Estate" with Robert L. Kinard for the timberland. On March 2, 1990, Kinard received a bid of $108,000 from Gary Pickett for the timber on the land. Apparently, a one sentence bid was also handwritten on this date. The bid was to last 30 days. (There was some indication from the voir dire of Pickett that this bid was not a "cash" bid but a "cut and pay" proposal based on a timber cruise by Billy Barker.)

On March 8, Ralph Morgan made a written offer of $95,000 for the same timberland and gave an earnest money deposit, the receipt of which was acknowledged on the offer form by Boone. After learning of the interest of another party, Morgan increased his offer to $98,000. This offer was rejected, and the earnest money returned on March 13. Kinard made an offer of $98,000 for the land which was accepted on March 13.

On March 14, 1990, Morgan filed a lawsuit for specific performance against Boone in Lauderdale County Chancery Court. These proceedings were dismissed on a Motion for Summary Judgment in June of 1990, some two and one-half months later. Kinard then purchased the land and was forced to accept a lower offer of $86,000 from Scott Paper Company for the timber on the land. Kinard's claim in effect was that the cloud on the title created by Morgan's suit caused him to suffer actual damages of $22,000.

All relevant documents were solicited in the interrogatories propounded by Morgan. Neither the written bid by Gary Pickett nor the March 1 "contract" was turned over to opposing (Morgan's) counsel in discovery. These documents were excluded at trial by the trial judge as they were not turned over pursuant to discovery requests.

Additionally, the trial judge excluded any testimony by Gary Pickett as to the terms of his oral bid on the timber, because in voir dire Pickett stated that he could not remember the exact amount of the bid but knew it was more than $100,000. The trial judge ruled that this testimony was too speculative on the damage issue. The court also refused to allow Pickett to testify after refreshing his memory by seeing the written bid. The court stated that Pickett was refreshing his memory from a document that either the lawyer or Kinard had in his possession for more than two years, and because that document was not provided to Morgan, to now allow Pickett to testify as to its tenor would be a gross miscarriage of the rules of discovery. Furthermore, the court held that this evidence was the single element of damages, and since it was excluded by the discovery sanctions, the court must enter a directed verdict in favor of Morgan.

Statement of the Issues

Kinard claims it was error for the trial court not to allow Pickett to testify as to the amount of the oral bid after he had refreshed his memory using the written bid. The trial court held that this was not the best evidence and that the witness could not refresh his memory with non-disclosed material.

Secondly, Kinard argues that it was error not to allow the introduction of the first written offer, the Pickett bid or any mention thereof, because there was no ambush or surprise by the late discovery of the documents.

We hold that it was error not to allow Pickett to testify, and so this case should be reversed and remanded for a new trial.

Discussion of the Law

I.

The standard of review when a trial court institutes sanctions for discovery abuses is "whether the trial court abused its discretion in its decision." Cooper v. State Farm Fire & Cas. Co., 568 So.2d 687, 692 (Miss.1990) (quoting Brown v. Arlen Management Corp., 663 F.2d 575, 580 (C.A.Tex.1981)). The Court will affirm unless there is a " 'definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors.' " Id. at 1136 and cases cited therein.

II.

Kinard argues that the trial court erred by refusing to allow Pickett to testify to the amount of his oral timber bid after Pickett had refreshed his memory with the written bid. The trial court's ruling was predicated on the failure of Kinard to disclose the document during discovery.

In Livingston v. State, 525 So.2d 1300 (Miss.1988), this Court considered whether the State could use a photograph of a lineup to refresh a detective's memory that was not provided pursuant to a discovery request. The Court ruled that the fact that a document is inadmissible due to a discovery violation does not necessarily prevent a witness from using it to refresh his recollection. Id. at 1304. In so holding, we said that the detective was not testifying "concerning" the physical evidence, but was testifying as to his own refreshed memory.

Kinard in fact did not want Pickett to testify to the actual written document, i.e., the physical evidence, but rather to the oral bid he gave Kinard. Pickett should have been allowed to testify to the oral bid from his refreshed recollection.

However, it was proper to deny any reference to the first written offer that was excluded from evidence by a discovery sanction. Kinard wanted the real estate agent to testify that he had signed an acknowledgment for receipt of earnest money on the offer. In essence, Kinard wanted the agent to testify as to what was written on the physical evidence excluded by the discovery violation. In this instance, the agent would be testifying about the evidence, i.e., that an acknowledgment of the earnest money was indeed on the document. This testimony was properly excluded in accordance with our holding in Livingston.

The trial court also excluded Pickett's testimony on the basis that it was not the best evidence of the bid. This is an incorrect application of the rule. M.R.E. 1002 embodies the best evidence rule. See M.R.E. 1002 cmt. The rule states "[t]o prove the content of a writing, recording, or...