               IN THE SUPREME COURT OF MISSISSIPPI

                        NO. 2006-CA-01621-SCT

                        CONSOLIDATED WITH

                         2006-CA-01625-SCT

CHOCTAW, INC., ET AL.

v.

CAMPBELL-CHERRY-HARRISON-DAVIS AND
DOVE


DATE OF JUDGMENT:               08/17/2006
TRIAL JUDGE:                    HON. LEE J. HOWARD
COURT FROM WHICH APPEALED:      NOXUBEE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:       FRED KRUTZ
                                EDWIN S. GAULT, JR.
                                DANIEL J. MULHOLLAND
                                BRIAN BARRY HANNULA
                                RONALD G. PERESICH
                                W. MARK EDWARDS
                                RANDI PERESICH MUELLER
                                JOHANNA MALBROUGH McMULLAN
ATTORNEYS FOR APPELLEES:        DEWITT T. HICKS, JR.
                                WILLIAM THOMAS COOPER
                                STEVE McCONNICO
NATURE OF THE CASE:             CIVIL - OTHER
DISPOSITION:                    AFFIRMED - 10/04/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




     BEFORE WALLER, P.J., EASLEY AND CARLSON, JJ.

     EASLEY, JUSTICE, FOR THE COURT:

                 PROCEDURAL HISTORY AND FACTS
¶1.    On December 30, 2002, Campbell-Cherry-Harrison-Davis-Dove, P.C., (CCHDD), a

Texas law firm, filed its original complaints in Baldwin, et al. v. Graco Enterprises, Inc.,

et al., Cause No. 2002-429, on behalf of 247 plaintiffs, and Prince, et al. v. Pearl River

Sand & Gravel Co., Inc., et al., Cause No. 2002-430, on behalf of 4,200 plaintiffs,

collectively the “CCHDD Plaintiffs,” in the Circuit Court of Noxubee County, Mississippi,

against 131 unrelated defendants for alleged personal injuries suffered by the CCHDD

Plaintiffs’ exposure to silica. The lawsuits were filed in the circuit court by the CCHDD

Plaintiffs’ Mississippi counsel, William H. Liston, Esq., Liston & Lancaster.1 Amended

complaints were filed in the circuit court on March 24, 2003, by Attorney Liston.

¶2.    The CCHDD Plaintiffs’ cases were subsequently, successfully removed by the

Defendants to the United States District Court for the Southern District of Mississippi.

Thereafter, the cases were removed by the United States District Court for the Southern

District of Mississippi to the United District Court for the Southern District of Texas, which

was handling a multi-district litigation (MDL) docket for silicosis claims, the Honorable

Janis Graham Jack, District Court Judge, presiding. The Plaintiffs who were removed to the

MDL federal court, including the CCHDD Plaintiffs, objected to the removal based on an

alleged lack of subject matter jurisdiction. Judge Jack reserved ruling on the lack of subject

matter jurisdiction claim, allowing some initial discovery as to the Plaintiffs’ claims and

jurisdiction.


       1
        Here, CCHDD was defended at trial on the motion for sanctions, as well as in this
appeal by the Mississippi law firm Gholson, Hicks & Nichols, P.A.

                                              2
¶3.       After conducting a lengthy evidentiary hearing, Judge Jack concluded that she

lacked jurisdiction over most of the lawsuits, including all of the CCHDD Plaintiffs, that

had been filed in state court and removed to the MDL federal court. See In re Silica

Products Liability Litigation, 398 F. Supp. 2d 563 (S.D. Tex. 2005). Before Judge Jack

remanded the CCHDD Plaintiffs to the Mississippi state court on June 30, 2005, for lack of

subject matter jurisdiction, she criticized the opinions supporting the silicosis claims,

despite her admitted lack of subject matter jurisdiction to render any ruling as to the cases

except to remand.

¶4.       Once the CCHDD Plaintiffs were remanded to Mississippi state court, CCHDD, on

October 14, 2005, filed a motion for determination of status pursuant to this Court’s holding

in Harold’s Auto Parts, Inc. v. Mangialardi, 889 So. 2d 493 (Miss. 2004). CCHDD sought

the Court’s guidance regarding the then-recent changes in the law as to venue and joinder

after Mangialardi. (The CCHDD Plaintiffs filed suit before Mangialardi was decided by

this Court.) CCHDD requested guidance on how to handle the severance and transfer of the

Plaintiffs’ claims. By agreement between the parties, on an ore tenus motion to the trial

court, most of the Plaintiffs’ claims against the Defendants were dismissed without

prejudice and each party agreed to bear its own costs.2 The agreed order was entered by

the Circuit Court of Noxubee County on December 14, 2005. The agreed order specifically

stated:


          2
         The plaintiffs that remained after the initial dismissal also were subsequently
dismissed.

                                             3
       IT IS, THEREFORE, ORDERED AND ADJUDGED that all Defendants be
       and the same are hereby dismissed without prejudice as to the claims of the
       Plaintiffs listed in the attached Exhibit “A,” with each party to bear its own
       costs.

(Emphasis added).

¶5.    Despite the agreement to bear their own costs, some of the 131 defendants, on

December 19, 2005, filed motions for sanctions in the Circuit Court of Noxubee County,

alleging that CCHDD frivolously filed the two suits.3 The Defendants sought sanctions

pursuant to the Litigation Accountability Act of 1988, Mississippi Code Annotation

Section 11-55-1, et seq. The substance of the Defendants’ allegations was that the CCHDD

Plaintiffs lacked any diagnoses to sustain their claims of silica-related disease, and the

medical reports submitted by CCHDD were, in effect, a sham. CCHDD filed its response

to the allegations. A hearing on the motions for sanctions was held on March 26, 2006, by

the circuit court, the Honorable Lee J. Howard, presiding. The circuit court reserved its

ruling at the hearing, subsequently entering an order denying the motions for sanctions. On




       3
         The Defendants did not seek sanctions against the CCHDD Plaintiffs’ local counsel,
Liston & Lancaster. Of the 131 original defendants, the defendants/appellees listed in this
appeal of the denial of the motions for sanctions are as follows: Choctaw, Inc.; Clark Sand
Co., Inc.; Clark Sales & Rentals, Inc.; Clemco Industries Corporation; Custom Aggregates
& Grinding, Inc.; Eastern Safety Equipment Co., Inc.; F & S Abrasives, Inc.; Flexco
Products, Inc.; Huey Stockstill, Inc.; Humble Sand Co., Inc. d/b/a Humble Sand & Gravel,
Inc.; Ingersoll-Rand Company; Lockheed Martin Corporation; Parmelee Industries, Inc.;
P.K. Lindsay Company; Precision Packing, Inc. f/k/a Quikrete Materials, Inc.; Standard
Equipment Co., Inc.; and Empire Abrasive Equipment Corporation.


                                             4
July 17, 2006, the circuit court entered its orders denying the Defendants’ motions for

sanctions “in its entirety.”

¶6.    The Defendants now appeal to this Court. This Court granted the parties’ agreed

motion to consolidate the cases for appeal. The dispositive issue that we address on appeal

is: whether the trial court erred in denying the Defendants’ motions for sanctions against

CCHDD under the Litigation Accountability Act of 1988.4                The Defendants also,

alternatively, raise the issue of whether the trial court erred in finding that the record was

well-developed and not allowing additional discovery regarding the motions for sanctions.

                                       DISCUSSION

                                              I.

¶7.    “Miss. Code Ann. § 11-55-3(a) provides that a claim is without substantial

justification when it is ‘frivolous, groundless in fact or in law, or vexatious, as determined

by the court.’” 5 Scruggs v. Saterfiel, 693 So. 2d 924, 927 (Miss. 1997). This Court

examines whether a claim is frivolous as follows:


       4
         The Defendants raise numerous assignments of error that all are substantially tied
to the discussion of the issue of whether the trial court erred in denying the motions for
sanctions.
       5
           Mississippi Code Annotated Section 11-55-3(a) (Rev. 2002) provides:

       "Without substantial justification," when used with reference to any action,
       claim, defense or appeal, including without limitation any motion, means that
       it is frivolous, groundless in fact or in law, or vexatious, as determined by the
       court.

(Emphasis added).

                                              5
       To determine whether a claim is frivolous pursuant to the statute, this Court
       looks to the definition of "frivolous" found in M.R.C.P. 11. Leaf River Forest
       Products, Inc. v. Deakle, 661 So. 2d 188, 197 (Miss. 1995). For purposes of
       Rule 11, a claim is frivolous "only when, objectively speaking, the pleader or
       movant has no hope of success." Stevens v. Lake, 615 So. 2d 1177, 1184
       (Miss. 1993), quoting Tricon Metals & Services, Inc. v. Topp, 537 So. 2d
       1331, 1335 (Miss. 1989); Smith v. Malouf, 597 So. 2d 1299, 1303 (Miss.
       1992) (applying Rule 11 definition to Litigation Accountability Act context).
       "Though a case may be weak or 'light-headed,' that is not sufficient to label it
       frivolous." Deakle, 661 So. 2d at 195; Nichols v. Munn, 565 So. 2d 1132,
       1137 (Miss. 1990).

Wilson v. Greyhound Bus Lines, 830 So. 2d 1151, 1159 (Miss. 2002) (quoting Scruggs, 693

So. 2d at 927) (emphasis added). Thus, sanctions are not justified if the plaintiff had some

hope of success when the claim was filed. Bean v. Broussard, 587 So. 2d 908, 912 (Miss.

1991); see Wilson, 830 So. 2d at 1159. “To deem a question of law ‘frivolous, groundless

in fact or in law, or vexatious’ merely because there is no existing Mississippi law on the

subject would have a chilling effect on all litigation involving questions of first impression.”

Scruggs, 693 So. 2d at 927 (emphasis added).

¶8.    “The imposition of sanctions raises a question of law, the standard of review of which

is de novo.” In re Estate of Ladner v. Ladner, 909 So. 2d 1051, 1055 (Miss. 2004) (citing

Amiker v. Drugs For Less, Inc., 796 So. 2d 942, 945-46 (Miss. 2001)). However, this Court

has also held, “When reviewing a decision regarding the imposition of sanctions pursuant to

the Litigation Accountability Act, this Court is limited to consideration of whether the trial

court abused its discretion.” Scruggs, 693 So. 2d at 927 (citing Deakle, 661 So. 2d at 197;




                                               6
Jackson County School Board v. Osborn, 605 So. 2d 731, 735 (Miss. 1992)) (emphasis

added).6

¶9.    Mississippi Code Annotated Section 11-55-5 (1)-(3) (2007) provides in pertinent part:

       Assessment of attorney fees and costs against attorney or party for meritless
       action, claim or defense, unwarranted delay, or unnecessary proceedings[:]

       (1)    Except as otherwise provided in this chapter, in any civil action
       commenced or appealed in any court of record in this state, the court shall
       award, as part of its judgment and in addition to any other costs otherwise
       assessed, reasonable attorney's fees and costs against any party or attorney if
       the court, upon the motion of any party or on its own motion, finds that an
       attorney or party brought an action, or asserted any claim or defense, that is
       without substantial justification, or that the action, or any claim or defense
       asserted, was interposed for delay or harassment, or if it finds that an attorney
       or party unnecessarily expanded the proceedings by other improper conduct
       including, but not limited to, abuse of discovery procedures available under the
       Mississippi Rules of Civil Procedure.

       (2)    No attorney's fees or costs shall be assessed if a voluntary dismissal is
       filed as to any action, claim or defense within a reasonable time after the
       attorney or party filing the action, claim or defense knows or reasonably
       should have known that it would not prevail on the action, claim or defense.7




       6
        An extensive number of cases state that the proper standard of review regarding the
imposition of sanctions is abuse of discretion. In Wilson, 830 So. 2d at 1159, the Court
acknowledged abuse of discretion as the appropriate standard of review, stating: “In both
Scruggs and Wheeler we were called upon to determine whether the trial court's award of
sanctions pursuant to the Litigation Accountability Act was an abuse of discretion.” Also,
in Foster v. Ross, 804 So. 2d 1018, 1022 (Miss. 2002), the Court provided the appropriate
standard of review, holding: “When reviewing a decision regarding the imposition of
sanctions pursuant to the Litigation Accountability Act, this Court is limited to a
consideration of whether the trial court abused its discretion.” (citations omitted).
       7
         Subsection (2) of Mississippi Code Annotated Section 11-55-5 is referred to as the
“safe harbor” provision by CCHDD.

                                              7
       (3)    When a court determines reasonable attorney's fees or costs should be
       assessed, it shall assess the payment against the offending attorneys or parties,
       or both, and in its discretion may allocate the payment among them, as it
       determines most just, and may assess the full amount or any portion to any
       offending attorney or party.

¶10.   The Defendants argue that CCHDD’s screening process was a device designed to

generate unfounded claims.       CCHDD contends that its screening process was well-

established and that it is a mechanism that has been used for years in the field of mass torts,

citing Findley v. Trustees of the Manville Personal Injury Settlement Trust (In re Joint

Eastern & Southern Districts Asbestos Litigation), 237 F. Supp. 2d 297, 309 (D.N.Y. 2002)

(“Claimants today are diagnosed largely through plaintiff-lawyer arranged mass screening

programs targeting possibly asbestos-exposed workers and attraction of potential claimants

through the mass media. The programs rely almost solely on chest x-rays and pro-plaintiff

readers to identify the injured.”).8 Today, we are not asked to devise an alternative process

to the mass x-ray screening process; we are only asked to decide whether Judge Howard

erred in finding that CCHDD’s conduct was not sanctionable pursuant to the Litigation

Accountability Act.

¶11.   To determine whether an attorney’s conduct was sanctionable, we must focus on

whether the attorney’s conduct was objectionably reasonable. See Wilson, 830 So. 2d at

1159. Here, we must start our analysis with the process CCHDD undertook to screen their


       8
         The court in In re Joint Eastern & Southern Districts Asbestos Litigation also
went on to examine in detail the complaints associated with the process, stating, “A number
of studies have shown that some plaintiffs' doctors consistently over-diagnose
asbestos-related conditions.” 237 F. Supp. 2d at 309 .

                                              8
clients and their reliance on the screening process before filing suit. CCHDD established

criteria based on a methodology for diagnosing silicosis to screen potential clients.9 CCHDD

retained a screening company, N&M, Inc., to handle the screening process so CCHDD could

be detached from the diagnosis. N&M was informed that CCHDD would only represent

persons who met the established criteria CCHDD provided to N&M.

¶12.   Billy H. Davis, Jr., counsel for the CCHDD Plaintiffs, and shareholder in the CCHDD

law firm, provided an affidavit detailing the required criteria. In his affidavit, Davis stated

that N&M was required to adhere to a screening process that specified that each potential

client have: (1) at least two years of silica exposure generally occurring before 1980; (2) a

positive B-read by a NIOSH certified B-reader; (3) a physical exam and pulmonary function

test; and (4) a diagnosis of silicosis by a qualified physician.10 N&M was licensed by the

State of Mississippi to perform x-rays. N&M informed CCHDD that Ray Harron, M.D.,

would perform the physical exam and a “B-read” on the individuals screened by N&M. The

individuals with a positive B-read would then have a physical exam and pulmonary function


       9
        Silicosis is a disabling, nonreversible and sometimes fatal lung disease caused by
overexposure to respirable crystalline silica. U.S. Dept. of Labor and the National Institute
of Occupational Safety and Health, Preventing Silicosis (1996).
       10
         NIOSH denotes the National Institute for Occupational Safety and Health, a U.S.
federal agency, part of the Centers for Disease Control and Prevention (CDC), which
conducts research and makes recommendations for the prevention of work-related disease
and injury. See http://www.cdc.gov/niosh.html.

        A B-reader is a doctor certified by NIOSH to identify the presence of asbestos- and
silica- related disease precursors on chest x-rays. See Gibson v. Workers Compensation
Appeal Bd., 861 A.2d 938, 942 n.4 (Pa. 2004).

                                              9
test performed. The x-rays and the occupational history information on those positive B-

reads would then be provided to a second B-reader for another B-reading. If positive, a

qualified physician would determine whether each individual had silicosis within a

reasonable degree of medical certainty.11

¶13.   CCHDD had no contact with the physicians, using N&M as a barrier between itself

and the findings and diagnoses. N&M was paid for each positive individual. However, the

physicians were paid regardless of whether the diagnosis was positive. Many of the CCHDD

Plaintiffs also had been previously diagnosed with asbestosis. The Defendants argue that it

is virtually impossible for the asbestosis clients to also be diagnosed with silicosis. However,

CCHDD maintains that all the CCHDD Plaintiffs were subjected to a new screening for

silicosis, following the screening process stated above. CCHDD also contends that the

Defendants do not cite any individual plaintiff who does not have silicosis.




       11
           Dr. George Martindale issued a diagnosis of silicosis for many of the CCHDD
Plaintiffs as the second B-reader. Dr. Martindale later withdrew his diagnoses, claiming that
he did not intend to diagnosis silicosis. CCHDD claimed that it was unaware of this.
According to a letter from Dr. Martindale to Billy H. Davis, Esq., Campbell Cherry Harris
Davis and Dove, dated March 25, 2005, Dr. Martindale informed Attorney Davis regarding
the background and scope of his services provided to N&M as a B-reader. Dr. Martindale
stated that he was hired by N&M, and he neither had any contact with any attorney from
CCHDD nor any Defendant’s attorney concerning his diagnoses until he was subpoenaed
by a defense attorney in October 2004. According to Dr. Martindale, he never intended on
being designated as a “diagnosing physician” or being deposed. Dr. Martindale stated that
all his records were turned over to the screening company that hired him, N&M. The
Defendants cite Dr. Martindale’s recantation as grounds to grant the motions for sanctions
against CCHDD.

                                              10
¶14.   Judge Howard rendered the following findings of fact and conclusion of law in

support of his ruling, stating:

       (1)    The Court finds that the claims CCHDD filed in this lawsuit were not
       brought without substantial justification or for delay or harassment, and thus
       sanctions are not warranted under the Mississippi Accountability Act. MISS.
       CODE ANN. § 11-55-5 (2002). The Court finds that the factors to be weighed
       when considering whether to award sanctions do not support an award of
       sanctions here. MISS. CODE ANN. § 11-55-7 (a-k) (2002).

       (2)    The Court finds further that, at the time this lawsuit was filed,
       Mississippi had no firm rule regarding the amount of pre-suit discovery
       required of a plaintiff. The Court finds that sanctions are not warranted that
       would hold CCHDD to a standard that had not been adopted at the time
       CCHDD filed this action.

       (3)    The Court notes that, by agreement of the parties, CCHDD has
       dismissed claims brought by many of the plaintiffs pursuant to current
       Mississippi joinder rules. The Court finds that it is not appropriate to award
       sanctions based on claims after they have been voluntarily dismissed.

       (4)    The Court declines to adopt the opinion by the Honorable Judge Janis
       Graham Jack, United States District Judge for the Southern District of Texas,
       Corpus Christi Division, who presided over the In re Silica Products Liability
       Litigation, No. 1553. The federal court remanded this lawsuit back to this
       Court because it lacked subject-matter jurisdiction over this lawsuit.

(Emphasis added).

¶15.   Despite their agreeing to the dismissal of the CCHDD’s claims without prejudice and

bearing their own costs associated with the litigation, the Defendants attack Judge Howard’s

ruling denying the motions for sanctions. First, the Defendants argue that CCHDD delayed

the proceedings. However, the dates have been purposely outlined in the procedural history

in order to see the actions taken by CCHDD and the date of each relevant filing, including



                                            11
the removal to federal court in Mississippi and Texas, and the subsequent transfer to

Mississippi, where the claims were dismissed without prejudice.

¶16.   Based on the background of the case, including its long history of transfers and the

period of time allowed by the MDL federal court for discovery, we fail to see how the

CCHDD Plaintiffs delayed the litigation for the purpose of harassment. The fact that

CCHDD dismissed its Plaintiffs’ claims does not prove that CCHDD acted to delay the

proceedings. The grounds for the dismissal were based on a recent clarification of the law

in Mississippi regarding joinder pursuant to Mississippi Rule Civil Procedure 20.

¶17.   In subsections (2) and (3) of Judge Howard’s ruling, he states that sanctions were not

appropriate because CCHDD dismissed claims, brought pursuant to current Mississippi

joinder rules, based on recent opinions by the Court in the area of joinder. At the time the

CCHDD Plaintiffs filed suit, they did not have the benefit of this Court’s holding in

Mangialardi, 889 So. 2d at 495. In Mangialardi, 889 So. 2d at 495, we held, “Such

information must include, at a minimum, the name of the defendant or defendants against

whom each plaintiff makes a claim, and the time period and location of exposure.” In 2004,

this Court took significant steps to clarify the application of joinder pursuant to Mississippi

Rule Civil Procedure 20.

¶18.   Here, the CCHDD complaint, filed in 2002, did not satisfy the requirements of our

holding in 2004 in Mangialardi, which relied on our holding in Janssen Pharmaceutica,

Inc. v. Armond, 866 So. 2d 1092 (Miss. 2004). In Armond, this Court addressed joinder,

stating:

                                              12
       The comment to Rule 20 states both that "the general philosophy of the joinder
       provisions of these rules is to allow virtually unlimited joinder at the pleading
       stage" and:

       Joinder of parties under Rule 20(a) is not unlimited . . . . Rule 20(a) imposes
       two specific requisites to the joinder of parties: (1) a right to relief must be
       asserted by or against each plaintiff or defendant relating to or arising out of
       the same transaction or occurrence; and, (2) some question of law or fact
       common to all the parties will arise in the action. Both of these requirements
       must be satisfied in order to sustain party joinder under Rule 20(a). . . .

       M.R.C.P. 20 cmt. (emphasis added). The issue, then, is where to draw the line
       with respect to what is considered "the same transaction, occurrence, or series
       of transactions or occurrences." Plaintiffs ask this Court to extend the rule to
       allow multiple unconnected plaintiffs' actions against multiple unconnected
       defendants, where independent doctors prescribed at different times and
       places, the same drug, Propulsid, to different patients. Defendants ask the
       Court to place some limit on Mississippi's "virtually unlimited joinder" by
       finding that the many separate doctor-patient prescribings of Propulsid do not
       arise from the same transaction, occurrence, or series of transactions or
       occurrences.

Armond, 866 So. 2d at 1097. Further and importantly, the parties signed an agreed order

dismissing most of the plaintiffs, which was approved by the circuit court, with the parties

agreeing to bear their own costs of litigation.

¶19.   The Defendants also maintain that Judge Howard was bound under the doctrine of res

judicata to adopt the rulings by Judge Jack.         Judge Howard expressly rejected the

Defendants’ position. The doctrine of res judicata applies “only to questions actually

litigated in a prior suit, and not to questions which might have been litigated." Mayor & Bd.

of Aldermen v. Homebuilders Ass'n of Miss., Inc., 932 So. 2d 44, 59 (Miss. 2006) (citing

Dunaway v. W.H. Hopper & Associates, 422 So. 2d 749, 751 (Miss. 1982) (quoting

Johnson v. Bagby, 252 Miss. 125, 171 So. 2d 327 (Miss. 1965)). “Res judicata reflects the

                                              13
refusal of the law to tolerate a multiplicity of litigation.” Global Oceanic Enters. v. Hynum,

857 So. 2d 659, 662 (Miss. 2003) (citing Little v. V&G Welding Supply, Inc., 704 So. 2d

1336, 1337 (Miss. 1997)).

¶20.   In Collins v. State, 594 So. 2d 29, 32 (Miss. 1992), the Court defined subject-matter

jurisdiction as:

       [A] court's authority "to entertain and proceed with a case." Bullock v.
       Roadway Express, Inc., 548 So. 2d 1306, 1308 (Miss. 1989). In reviewing a
       subject-matter jurisdiction challenge, this Court looks at the type of case by
       examining the nature of the controversy and the relief sought, assuming the
       allegations in the well-pleaded complaint are true. Hood v. Dept. of Wildlife
       Conservation, 571 So. 2d 263, 266 (Miss. 1990); see also Penrod Drilling Co.
       v. Bounds, 433 So. 2d 916, 924-25 (Miss. 1983) (Robertson, J., concurring).

Here, the CCHDD Plaintiffs raised the lack of subject-matter jurisdiction, and the MDL

federal court agreed.

¶21.   Under the facts of this case, Judge Howard correctly found that since Judge Jack

admittedly lacked subject-matter jurisdiction, the circuit court was not bound by her rulings

as to the CCHDD Plaintiffs on remand. See Rayner v. Raytheon Co., 858 So. 2d 132, 138

(Miss. 2003) (citing Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss., 143 F.3d

1006 (5th Cir. 1998) (“[T]he federal court's ‘comments’ regarding the merits of Rayner's

claims will not subject his new action to the doctrines of res judicata or claim preclusion

because those ‘comments’ concerning the merit of his claims were made without subject

matter jurisdiction and cannot be used against his new action.”)).




                                             14
¶22.   Examining the record and the arguments advanced on appeal, we find that the circuit

court did not abuse its discretion in denying the Defendants’ motions for sanctions.

Accordingly, this assignment of error is without merit.

                                             II.

¶23.   Alternatively, the Defendants argue that Judge Howard erred in denying the

Defendants’ request for additional discovery. The circuit court stated:

       IT IS FURTHER ORDERED that Defendants’ requests for additional
       discovery relative to the Motion for Sanctions is DENIED. The record is
       sufficiently established for this Court to rule on the merits of the Motion, and
       no further discovery is necessary.

¶24.   The standard of review for evidentiary matters is well-established. In Payne v.

Whitten, 948 So. 2d 427, 429-30 (Miss. 2007), this Court recently reiterated that, “The

standard for review of evidentiary matters is abuse of discretion.” (Citing Floyd v. City of

Crystal Springs, 749 So. 2d 110, 113 (Miss. 1999)).

¶25.   As the record demonstrates, the discovery allowed by Judge Jack in the MDL federal

court provided sufficient discovery for the circuit court to proceed with the motions for

sanctions. Judge Howard conducted a hearing on the Defendants’ motions for sanctions. At

the conclusion of the hearing, Judge Howard reserved his ruling. After his examination of

the record, Judge Howard declined to award sanctions against CCHDD, and he denied the

request for additional discovery. Judge Howard was in the best position to determine

whether additional discovery was necessary in order to rule on the motions for sanctions.




                                             15
¶26.   Finding no abuse of discretion in the circuit court’s ruling, we hold that this

assignment of error is without merit.

                                        CONCLUSION

¶27.   For the foregoing reasons, the judgment of the Circuit Court of Noxubee County,

Mississippi, is affirmed.

¶28.   AFFIRMED.

    SMITH, C.J., WALLER, P.J., CARLSON, DICKINSON, RANDOLPH AND
LAMAR, JJ., CONCUR. DIAZ, P.J., AND GRAVES, J., CONCUR IN RESULT
ONLY.




                                            16
