Oral arg. – Miss.S.Ct. – Tues., March 17, 2015

At 10:00 a.m., Tuesday, March 17, 2015, the Miss. S. Ct. will hear an interlocutory appeal in Greg Barnes v. Jefferson County School Dist. – a Tort Claims Act case that includes discovery violation issues.

The family of 6 year old Greg Barnes Jr sued the School District after the bus driver stopped the bus on a bridge and dangled Greg over the edge of a bridge. Because this was a Tort Claims Act, there was a bench trial.  The trial court ruled for the School District.  After the trial, the School District  produced a bus driver handbook that had not been produced during pre-trial discovery.   The Barnes moved for  judgment notwithstanding the verdict as a sanction for the discovery violation.  During the JNOV hearing, the School District admitted that the proof should be reopened  the judge admitted he could not be impartial during a new trial since he had heard the evidence. The trial court granted  a new trial.  At some point, the School District admitted liability. The judge entered an order recusing himself.  Fourteen after that he entered an order denying the JNOV. According the the School District, this last order came about after the judge’s issued an order  “recusing himself from presiding over the new trial.”  The School Dist. writes:

Left without an Order clearly memorializing the Court’s ruling from the bench on August 5th, Defendants furnished the Trial Court with a proposed pro forma order which they believe memorialized the previous bench ruling, wherein the Trial Court granted a new trial (and thus necessarily denied the Motion for Reconsideration and Motion for Judgment as a Matter of Law) and then recused himself from further proceedings. The Court did not, however, rule on the Plaintiffs’ Motion for Sanctions for alleged discovery violations which still remains pending at the Trial Court today.

To summarize, I think (because the facts are somewhat confusing), the Barnes are asking the Miss.S.Ct to order that the School District be sanctioned for the discovery violation by entering an order of judgment against the School District.  The School District argues that this interlocutory appeal makes no sense because the Barnes’ are getting a new trial on the issue of damages only.

Barnes’ brief.

School District’s brief. 

Barnes’ rebuttal brief.

Watch the argument here

Question that I would like to have seen asked:  what would happen if the judge granted the motion for new trial AND a  jnov?

In truth, there is a way  the trial court can grant both and it happens like this.  The trial court grants a JNOV and  a contingent motion for new trial. The order for a new trial is not effective unless and until the JNOV has been reversed on appeal, and is moot if the JNOV is affirmed on appeal.  It doesn’t work the other way around – the granting of a new trial and a contingent JNOV.  For one, the new trial order is interlocutory.  And it doesn’t work logically.  The idea behind granting a JNOV and a contingent new trial is that even if the appellate court disagrees with the trial  court that the evidence was insufficient as a matter of law (in other words, it was error to grant a JNOV) , then the lower standard – against  the weight of the evidence necessitating a new trial – could still apply.

One thought on “Oral arg. – Miss.S.Ct. – Tues., March 17, 2015

  1. In the oral argument that is on Youtube, the lawyer for the Barnes Family made a valid point. The Supreme Court has the power to make a decision and end the case rather than letting the case go back to the lower court. Jefferson Davis County has a population of 12,000 and the two judges (Mozingo and Harrell) responsible for Circuit Court duties are probably friends and share the same views. We don’t know the answer to that, so why take a chance with proper justice and send the case back to lower court under those circumstances. In earlier trial transcripts, Judge Mozingo seemed to be leaning towards the defense rather than the Barnes Family. The case won’t go back to Judge Mozingo because he recused himself, so Judge Harrell will preside over the case. I sincerely hope Judge Harrell does the right thing for the Barnes Family rather than carry out the wishes of a fellow judge who previously presided over the case. Do you honestly think they aren’t going to discuss this case with each other? The Barnes Family has the right to an impartial trial. Not sure that will happen with the case going back where it started. The Jefferson Davis County School District should pay the Barnes Family more than the $500-550K limited by Tort Claims Act. Any where else the family would have received $4-5Million for child endangerment and it wouldn’t take over 5 years to receive.

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