Robinson v. Robinson Prop. Grp. Corp., 2013-CA-01838-COA

• Decision Date: 08 January 2019
• Docket Number: NO. 2013-CA-01838-COA,2013-CA-01838-COA
• Parties: Linda ROBINSON, Appellant v. ROBINSON PROPERTY GROUP CORPORATION D/B/A Horseshoe Casino and Hotel, Appellee
• Court: Mississippi Court of Appeals

274 So.3d 952

Linda ROBINSON, Appellant

v.ROBINSON PROPERTY GROUP CORPORATION D/B/A Horseshoe Casino and Hotel, Appellee

NO. 2013-CA-01838-COA

Court of Appeals of Mississippi.

January 8, 2019

Rehearing Denied May 7, 2019

ATTORNEY FOR APPELLANT: DRAYTON D. BERKLEY, Memphis.

ATTORNEY FOR APPELLEE: POPE SHANNON MALLETTE, Oxford.

EN BANC.

BARNES, P.J., FOR THE COURT:

¶ 1. On August 6, 2008, Linda Robinson was at the Horseshoe Casino in Tunica, Mississippi, when another patron at the casino, Arthur Johnson, stumbled and knocked a free-standing casino sign onto Linda.¹ She was immediately attended to by the casino's emergency medical technician (EMT) after the accident, but she required no serious medical attention, and she left the casino. On August 5, 2011, Linda filed a complaint against Robinson Property Group d/b/a Horseshoe Casino (Casino) in Tunica County Circuit Court, alleging that the Casino's sign was "negligently and improperly stowed," constituted a "dangerous condition of the property," and caused her injury.² She claimed the sign was heavy, pinning her against a brick-enclosed garbage can, and two security guards had to help her sister remove the sign. Linda also contended that the Casino was liable under the Dram Shop Act, see Mississippi Code Annotated section 67-3-73(4) (Rev. 2005), for serving Johnson alcohol, because he was visibly intoxicated. Linda said that, as a result of the incident, she required rotator-cuff surgery and suffered from panic attacks.

¶ 2. On August 24, 2011, the circuit court entered an order setting deadlines for discovery, stating that all discovery should be completed 120 days after service of an answer by the defendants, including "all depositions which may be of evidentiary nature as well as for discovery." The order also stated that expert witnesses were to be designated no later than forty-five days before the deadline. The Casino filed its answer to the complaint on September 12, 2011, denying the allegations and requesting dismissal of the action. On December 7, 2011, Robinson requested a motion for extension of time (120 days), citing difficulty in locating Johnson for service of process.

¶ 3. The Casino filed a notice of service of interrogatories, requests for production of documents, and requests for admissions on April 30, 2012. Linda did not respond to the request for admissions until June 18, 2012, and subsequently filed a motion to amend her responses and to withdraw any admissions on August 13, 2012. The Casino argued that it was prejudiced by the delay and that the requests for admission were deemed admitted under Mississippi Rule of Civil Procedure 36(a), which states:

Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within thirty days after service of the request , or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter....

(Emphasis added).

¶ 4. On December 6, 2012, the Casino took Linda's deposition. The Casino filed a motion for summary judgment on May 20, 2013, and a hearing was scheduled for August 15, 2013. Three days before the motion hearing, Linda responded to the Casino's motion for summary judgment and filed a motion for a continuance. Linda's counsel noted that his mother had been terminally ill and had died on September 2, 2012, and that Linda desired to take the depositions of the Casino's employees present at the incident. The Casino replied that Linda's response was untimely and procedurally improper and requested that its summary-judgment motion be granted. At the August 15 hearing, Linda's counsel conceded the claim under the Dram Shop Act, acknowledging that there was "no proof that [Johnson] was served and he was visibly intoxicated."

¶ 5. The circuit court denied Linda's motion for a continuance and granted the Casino's motion for summary judgment, concluding that Linda failed to show a breach of duty for the premises-liability claim. After the circuit court denied Linda's motion for reconsideration, she filed a notice of appeal. Finding no error, we affirm.³

DISCUSSION

I. Whether the circuit court's denial of Linda's Mississippi Rule of Civil Procedure 56(f) motion for a continuance was an abuse of discretion.

¶ 6. Linda filed a motion for a continuance under Mississippi Rule of Civil Procedure 56(f) on August 12, 2013. The circuit court denied the motion, finding that the motion was untimely and lacked a legal basis. Linda argues that her Rule 56(f) motion for a continuance should have been granted. Rule 56(f) provides:

Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such order as it just.

Linda claims that she had wished to take the deposition of the security guard who was present at the incident but the Casino told her the employee was unavailable. She also alleges that the Casino said it would make an exemplar of the sign available to her, but failed to do so.

¶ 7. "The [circuit] court has sound discretion to grant or deny a continuance under Rule 56(f) ... [and our Court] will only reverse a [circuit] court where its decision can be characterized as an abuse of discretion." Davis v. Hindman , 138 So.3d 214, 217 (¶ 9) (Miss. Ct. App. 2014) (quoting Stallworth v. Sanford , 921 So.2d 340, 342-43 (¶ 9) (Miss. 2006) ). We agree that Linda's motion was untimely. Rule 4.03(2) of the Uniform Rules of Circuit and County Court Practice required that Linda file a reply to the Casino's motion for summary judgment within ten days.⁴ However, Linda did not file her motion for a continuance until three days before the summary-judgment hearing, almost three months after the Casino filed its motion.

¶ 8. Furthermore, " Rule 56(f) is not designed to protect litigants who are lazy or dilatory." Stallworth , 921 So.2d at 343 (¶ 11). In Stallworth , the Mississippi Supreme Court affirmed a circuit court's denial of the plaintiff's Rule 56(f) request for a continuance because the plaintiff had notice of her claim two years prior to the summary-judgment proceedings, had filed unsworn answers to interrogatories, and had failed to submit an expert's affidavit to support her claim against the defendant physicians. Id. at 342-43 (¶¶ 7-11) ; see also Hill v. Warden , 796 So.2d 276, 279 (¶ 9) (Miss. Ct. App. 2001) (finding no abuse of discretion in circuit court's grant of summary judgment due to plaintiff's nineteen-month delay before requesting to take deposition of physician).

¶ 9. Here, Linda had two years to conduct discovery but never issued a notice of a Mississippi Rule of Civil Procedure 30(b)(6) deposition, and her claim that the casino employee was not made available is not supported by the record. Responding to an e-mail regarding Linda's deposition, the Casino's attorney replied:

I'm checking with my client to determine the likely availability of witnesses on expected topics, though I can't be sure of the topics until I get your [ Rule 30(b)(6) ] notice . I'm checking on the availability of Security Manager, Luke Owens, and Kelly Bland and Arthur Logan (EMT and Supervisor related to incident).

(Emphasis added). Additionally, although Linda's counsel had been dealing with personal issues (the illness and death of his mother), he failed to inform the Casino or the circuit court of these issues until well after discovery responses were due. A litigant who desires to present additional evidentiary material "has an affirmative duty" to raise the issue in a timely manner "with the [circuit] court or be deemed to have waived objection to the court proceeding on the motion." Koestler v. Miss. College , 749 So.2d 1122, 1125 (¶ 10) (Miss. Ct. App. 1999) (quoting MST Inc. v. Miss. Chem. Corp. , 610 So.2d 299, 305 (Miss. 1992) ).

¶ 10. In light of the preceding facts, we find nothing to support Linda's claim that the circuit court's denial of her motion for continuance was an abuse of discretion.⁵

II. Whether the circuit court erred in granting the Casino's motion for summary judgment.

¶ 11. This Court's standard of review of a circuit court's grant of summary judgment is de novo. Freeman v. CLC of Biloxi LLC , 119 So.3d 1164, 1168 (¶ 11) (Miss. Ct. App. 2013) (quoting Haggard v. Wal-Mart Stores Inc. , 75 So.3d 1120, 1124 (¶ 8) (Miss. Ct. App. 2011) ). "Summary judgment is appropriate and ‘shall be rendered’ 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 judgment as a matter of law.’ " Karpinsky v. Am. Nat'l Ins. Co. , 109 So.3d 84, 88 (¶ 10) (Miss. 2013) (quoting M.R.C.P. 56(c) ).

¶ 12. The circuit court noted that Linda had provided "no medical expert to testify to proximate causation." Linda argues that her testimony and medical bills were sufficient proof of causation and that she is not required to provide expert testimony to prove the Casino's breach of the standard of care. Linda is correct in one respect—"[t]he general rule in Mississippi is that expert testimony is not required where the facts surrounding the alleged negligence are easily comprehensible to a jury." Wal-Mart Stores Inc. v. Johnson , 807 So.2d 382, 388 (¶ 15) (Miss. 2001) (citing Hammond v. Grissom , 470 So.2d 1049, 1052 (Miss. 1985) ). However, in Downs v. Ackerman , 115 So.3d 785, 790-91 (¶ 18) (Miss. 2013), the Mississippi Supreme Court determined that although "[a plaintiff's] medical bills established a presumption that those bills were reasonable and necessary for the treatment of her injuries, her medical bills were not...