Rogers v. Thames
| Decision Date | 05 January 2021 |
| Docket Number | NO. 2019-CA-00583-COA,2019-CA-00583-COA |
| Citation | 309 So.3d 1154 |
| Parties | Michael E. ROGERS, Appellant v. Robert M. THAMES, Appellee |
| Court | Mississippi Court of Appeals |
ATTORNEYS FOR APPELLANT: GRAHAM PATRICK CARNER, RAJU AUNDRE’ BRANSON, JESSICA ELIZABETH MURRAY, Jackson
ATTORNEY FOR APPELLEE: TRACE D. McRANEY, Gulfport
EN BANC.
WILSON, P.J., FOR THE COURT:
¶1. Michael Rogers sued Robert Thames for injuries he sustained when Thames's car collided with the rear of Rogers's truck while Rogers was stopped at a red light in Hattiesburg. Following a jury trial in the Forrest County Circuit Court, the jury found in favor of Rogers and awarded him damages of $13,000, and the court entered a judgment on the verdict. Rogers filed a motion for a new trial or an additur, which the trial judge denied, and a notice of appeal. In his opening brief on appeal, Rogers argues that the trial judge erred by excluding evidence regarding Thames's brakes, by denying challenges for cause during jury selection, and by denying Rogers's motion for a new trial. In his reply brief, Rogers attempts to raise a new issue, arguing that the trial judge erred by denying Rogers's ore tenus motion to amend the complaint, which Rogers made after the jury had been selected. For the reasons discussed below, we find no reversible error and affirm.
FACTS AND PROCEDURAL HISTORY
¶2. The underlying facts of this case are simple and essentially undisputed. On May 16, 2015, Rogers was stopped at a red light in Hattiesburg in his pickup truck. Thames's car suddenly struck Rogers's truck from behind. The impact was hard enough that Rogers's head went through the rear window of his truck. Rogers declined medical attention and drove his truck home from the scene. The next day, Rogers went to the emergency room for back and neck pain. In March 2016, Rogers filed a complaint against Thames, alleging negligence. He sought damages for medical bills, pain and suffering, emotional distress, and lost wages.
¶3. Rogers took Thames's deposition in March 2017. Thames testified that he saw Rogers's truck ahead of him and thought that Rogers was going to proceed through the intersection on a yellow light. When Thames saw that Rogers was stopping at the light, he realized he was going to hit Rogers, and he "hit [his] brakes hard." Thames testified that "it had started just to sprinkle a little bit" prior to the accident, "so the road[ ] was kind of damp," which caused his car to slide. In addition, Thames stated that he "had bad brakes on [his] car," which also caused his car to "slide." Thames testified that he knew his brakes were not "the best brakes" because his car would "slide" when he "hit [the] brakes hard," and he could hear the brakes "squeak a little bit ... at times." However, Thames did not have enough money for brake repairs at the time. Thames was "pretty sure [he] would have stopped on impact" with Rogers's truck if his brakes had been in "good" condition. He also thought he "would have avoided the whole accident" if it had not been raining.
¶4. In July 2017, Thames filed a "Stipulation of Negligence" in which he "stipulate[d] that [his own] negligence was the sole proximate cause of the [subject] accident." The stipulation stated that it did "not constitute a waiver of any affirmative defenses." Thames also filed a motion in limine to exclude any evidence regarding his brakes. Thames argued that based on his stipulation, such evidence was irrelevant and that its probative value was substantially outweighed by the danger of unfair prejudice. See M.R.E. 403. Thames's motion in limine also noted that Rogers had not made a claim for punitive damages.
¶5. In July 2017, Rogers filed a response to Thames's motion in limine in which he argued that the evidence regarding Thames's brakes was relevant to the issue of punitive damages. Rogers argued that the evidence was proof of gross negligence and that he could be granted leave to amend his complaint to assert a claim for punitive damages. However, Rogers did not file a motion for leave to amend his complaint. Rogers also argued that the evidence was "relevant because it [told] the full story of what happened in this wreck."
¶6. In September 2018, the case proceeded to trial. Prior to jury selection, the trial judge heard arguments on the motion in limine. Thames argued that evidence regarding his brakes was irrelevant and unfairly prejudicial in light of his stipulation that his negligence was the sole proximate cause of the accident. Thames also emphasized that "punitive damages were not pled in this case," so there was no claim for punitive damages. He argued that Rogers was trying "to inflame the jury" and wanted "to put on evidence so the jury [would] punish [him] because he ... didn't have good brakes." Thames contended that such evidence was improper and unfairly prejudicial because he had "admitted [the accident was] his fault," and there was no claim for punitive damages.
¶7. Prior to ruling on Thames's motion in limine, the trial judge also noted that Rogers's complaint did not seek punitive damages and that Rogers had never filed a motion to amend his complaint. Accordingly, there was no claim for punitive damages. The judge also emphasized that Thames had stipulated his negligence was the sole proximate cause of the accident. Based on those considerations, the court concluded that the evidence regarding Thames's brakes should be excluded because it was no longer relevant and "would tend to inflame or prejudice a jury." However, the judge made clear that Rogers could present evidence regarding the severity of the collision and the speed of Thames's car.
¶8. The parties then proceeded with jury selection. After jury selection and just before opening statements, Rogers made an ore tenus motion to amend his complaint to assert a claim for punitive damages. Thames opposed the motion, and the trial judge denied the motion. The judge noted that Rogers had failed to file a motion to amend his complaint at any time since Thames's deposition eighteen months earlier, and he found that Thames would be prejudiced by such a belated amendment.
¶9. The only witnesses were Thames, Rogers, and Rogers's doctor, Dr. Gregory Bredemeier.1 Rogers showed that he had incurred medical expenses of $7,388.25. He did not put on any proof of lost wages. The jury instructions included the following instruction:
[Thames] has ... agreed and stipulated that [his] negligence was the sole proximate cause of the accident. Therefore, the only issue left for you, the jury, to determine is: the amount of damages [Rogers] is entitled to as a result of any injuries he suffered in the accident in question.
In her closing argument, Rogers's attorney asked the jury to award Rogers $50,000 for medical expenses, pain and suffering, and emotional distress. In contrast, Thames's attorney suggested that $12,000 would be an appropriate award. The jury returned a verdict in favor of Rogers and found that he had sustained damages of $13,000.
ANALYSIS
¶10. Rogers's opening brief does not identify the denial of his motion to amend his complaint in his statement of issues. See M.R.A.P. 28(a)(3). Indeed, Rogers's opening brief does not even mention the motion or punitive damages. Rogers does raise the issue in his reply brief.2 However, "[i]t is a well-established rule that we will not consider issues raised for the first time in an appellant's reply brief." Chisholm v. State , 298 So. 3d 1046, 1050 (¶13) (Miss. Ct. App. 2020) (brackets and quotation marks omitted); accord, e.g. , Biegel v. Gilmer , No. 2018-IA-01172-SCT, ––– So.3d ––––, ––––, 2020 WL 728772, at *2 (¶11) (Miss. Feb. 13, 2020) ; Ray v. State , 238 So. 3d 1118, 1122 n.3 (Miss. 2018) ; Sanders v. State , 678 So. 2d 663, 669-70 (Miss. 1996). As this Court recently stated, "To countenance this would deprive an appellee of the opportunity to respond to the argument." Carroll v. City of Canton , 296 So. 3d 751, 760 n.10 (Miss. Ct. App. 2020). Because Rogers raised this issue for the first time in his reply brief, the issue is waived.
¶11. The dissent asserts that we should disregard Rogers's waiver because the trial judge committed "plain error." But the trial judge did not abuse his discretion by denying Rogers's motion,3 let alone commit "plain error."4 As discussed above, Rogers did not move to amend his complaint until after the jury had already been selected , two and a half years after he filed suit. Moreover, Rogers gave no explanation for why he waited so long to seek leave to amend. Under these circumstances, the trial judge did not abuse his discretion by denying Rogers's belated motion. See Barry , 47 So. 3d at 695-96 (¶20) (). Even more clearly, it is not "plain, clear, [or] obvious" that the trial judge abused his discretion. Maness , 250 So. 3d at 410 (¶21). Accordingly, the plain-error doctrine is wholly inapplicable. Id.5 This issue is both waived and without merit.
¶12. Rogers argues that the trial judge abused his discretion by granting Thames's motion in limine and excluding evidence regarding Thames's bad brakes, as well as Thames's knowledge of his bad brakes. We review the trial judge's ruling for an abuse of discretion. Bay Point Props. Inc. v. Miss. Transp. Comm'n , 201 So. 3d 1046, 1052 (¶6) (Miss. 2016). "There is no abuse of discretion in granting a motion in limine if the court determines that (1) the material or evidence in question will be inadmissible at trial under the rules of evidence; and (2) the mere offer, reference, or...
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...52 (¶8) (Miss. Ct. App. 2011) ). "To countenance this would deprive an appellee of the opportunity to respond to the argument." Rogers v. Thames , 309 So. 3d 1154, 1159 (¶10) (Miss. Ct. App. 2021) (quoting Carroll v. City of Canton , 296 So. 3d 751, 760 n.10 (Miss. Ct. App. 2020) ). Because......