              IN THE SUPREME COURT OF MISSISSIPPI

                      NO. 2014-CA-01005-SCT

PATRINA P. REYNOLDS

v.

ALLIED EMERGENCY SERVICES, PC AND DR.
PAUL BRACEY


DATE OF JUDGMENT:             02/13/2014
TRIAL JUDGE:                  HON. JEFF WEILL, SR.
TRIAL COURT ATTORNEYS:        JOHN D. GIDDENS
                              BASKIN L. JONES
                              DARRYL M. GIBBS
                              ROGEN K. CHHABRA
                              ASHLEY L. HENDRICKS
                              WHITMAN B. JOHNSON, III
                              LORRAINE W. BOYKIN
                              KATRINA S. BROWN
COURT FROM WHICH APPEALED:    HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:      ROGEN K. CHHABRA
                              DARRYL M. GIBBS
                              ASHLEY L. HENDRICKS
                              DAVID NEIL McCARTY
                              JOHN D. GIDDENS
                              BASKIN L. JONES
ATTORNEYS FOR APPELLEES:      WHITMAN B. JOHNSON, III
                              LORRAINE W. BOYKIN
NATURE OF THE CASE:           CIVIL - MEDICAL MALPRACTICE
DISPOSITION:                  REVERSED AND REMANDED - 06/02/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


     BEFORE RANDOLPH, P.J., LAMAR AND KITCHENS, JJ.

     LAMAR, JUSTICE, FOR THE COURT:
¶1.      After hearing all the evidence in a medical-malpractice trial, the jury retired to

deliberate. At some point during their deliberations, they requested a copy of the jury

instructions, which the bailiff provided. But instead of providing the approved set of

instructions, the bailiff mistakenly provided a set that the defendants previously had

proffered, which included a peremptory instruction. The jury returned a unanimous defense

verdict, and the parties left the courthouse. When the trial judge discovered the jury-

instruction mistake later that afternoon, he called the parties back to the courthouse and later

ordered a new trial.

¶2.      But the defendants then filed a motion to enforce the high/low settlement agreement

that the parties had entered into prior to trial. The trial judge agreed with the defendants that

a new trial was not allowed under the agreement and rescinded his previous order granting

it. Plaintiff Patrina Reynolds now appeals to this Court. We reverse and remand for a new

trial.

                       FACTS AND PROCEDURAL HISTORY

¶3.      In March 2007, Reynolds presented to an MEA clinic with several symptoms,

including lower abdominal pain, cramping and nausea. MEA advised her to go to the

emergency room at St. Dominic’s. Dr. Paul Bracey evaluated Reynolds, and she was

discharged later that evening. A few days later, Reynolds again presented to the St.

Dominic’s ER, this time with complaints of dizziness, sinus pressure and swelling to the left

side of her face. Reynolds ultimately was diagnosed with sepsis and underwent an

exploratory laparotomy. She also suffered blindness in both eyes due to an allergic reaction.



                                               2
Further facts regarding the underlying medical-malpractice allegations are irrelevant to the

parties’ arguments on appeal.

¶4.    Reynolds sued St. Dominic’s, Allied Emergency Services, PC, and Dr. Bracey.1 Prior

to trial, the parties entered into a “high/low” settlement agreement, in which Reynolds was

guaranteed a certain recovery amount in the event of a defense verdict, while the defendants’

liability was capped at a certain amount in the event of a verdict for Reynolds. The parties

detailed their agreement in a series of emails, and the relevant provisions are as follows:

       This is to confirm that we have had many discussions by phone since the
       below offer was made. We have now reached settlement agreements with each
       of you as follows: . . . Bracey and Allied combined agree to a high of [redacted
       by parties] and a low of [redacted] regardless of the ultimate outcome at trial.
       The ultimate high, low, or any verdict amount in between will be paid within
       10 days of the conclusion of trial.

       No party will retain any appeal rights.

       This is to confirm our discussion today wherein we clarified that if there is a
       mistrial for some reason, we agree that the high/low agreement would remain
       in place until we achieve a verdict.

       We agreed that mis-trial or hung jury won’t = low, but will still leave the high
       low in place until a verdict is rendered. But I think we are all on the same page
       and understand now. The low would be paid within 10 days of when this trial
       finishes, however it finishes, and the high would still be available should there
       be another trial.

And in some earlier emails, Reynolds’s counsel indicated that they “still [preferred] a simple

high/low that ends the litigation at the announcement of a verdict,” and that neither party




       1
        Reynolds settled with St. Dominic’s prior to trial, and it is not a party to this appeal.


                                               3
should be given a “consequence free ability to drag [the case] out past a verdict when we

already agreed on the high/low amount.”

¶5.    The trial judge summarized the relevant trial events in one of his post-trial orders:

       A jury trial on this matter was held during the week of May 6, 2013. On May
       10, 2013, the fifth and final day of the trial, the jury instructions were read by
       the Court to the jury. The instructions that were read into the record and to the
       ladies and gentlemen of the jury consisted of the correct and complete set of
       jury instructions for this case. This set of instructions was the result of an
       earlier charge conference with the Court and counsel [for] the parties. During
       the charge conference, certain instructions were given, refused, revised and
       withdrawn. After the Court’s reading of the jury instructions, the parties gave
       closing arguments and the case was submitted to the jury for deliberation. The
       parties were permitted to use the jury instructions in closing argument, as
       needed. Unbeknownst to the Court, the official jury instructions and two
       evidentiary exhibits were not returned to the court reporter for submission to
       the jury during deliberations. The missing jury instructions and the exhibit[s]
       were later located at Plaintiff counsel’s office.

       The jury returned a verdict for the defense in this case.[2] After the jury was
       dismissed, the Court’s clerk was collecting the jury instructions for filing, and
       noticed that the incorrect set of jury instructions was in the jury room. The
       clerk notified the judge, who immediately notified the parties. The Plaintiff
       requested a mistrial, and the Court required written submissions from all
       parties on the issue. During the inquiry into the mistake, the court learned that
       the jury apparently requested the written instructions from the Court’s bailiff.
       The Court’s bailiff went into the courtroom to retrieve them, and the original
       instructions were not in the customary location. The bailiff located some
       instructions near the clerks’ desk, and provided that set to the jury.
       Unfortunately, the set provided consisted of only the defense proposed
       instructions, including instructions that had been refused during the charge
       conference.[3]


       2
       The unanimous verdict read: “We the jury find for the defendants not guilty of
negligence.”
       3
        The instructions delivered to the jury included a cover page entitled “Jury
Instructions of Defendants Allied Emergency Services, PC and Dr. Paul Bracey.”
Immediately following the cover page, the first instruction read: “The Court instructs the
jury that you must return a verdict for the defendants.” The instructions also included a form

                                               4
As recounted above, the trial judge called the parties back to the courthouse on the afternoon

of May 10 after learning about the mistake. Reynolds’s counsel moved for a mistrial, and

the trial judge took the motion under advisement and asked the parties to file written motions

with appropriate briefs.

¶6.    Reynolds argued in her motion that Uniform Rule of Circuit County Court Practice

3.12 mandated a mistrial, as the “trial . . . clearly [could not] proceed in conformity with the

law.” Reynolds also argued that it was “clear that prejudice and unfairness occurred during

and throughout deliberations,” and that the law presumes that jurors follow the instructions

they are given.4 The defendants responded and argued that a mistrial was no longer available

after a verdict had been rendered, and that Reynolds was entitled to no relief because the

actions of her trial team caused the mistake.5 They also argued that Reynolds had not been

prejudiced by the incorrect instructions, attaching two affidavits from jurors who said that

they understood they could vote for either party. In rebuttal, Reynolds provided affidavits

from two other jurors who said that they were inclined to find for her when deliberations

began, and that they “relied” on the jury instructions they received in determining their

verdict.


of the verdict instruction in the event of a defense verdict, but of course, no matching
instruction for the plaintiff. None of the Court’s instructions were included.
       4
         Reynolds attached affidavits to her motion from two members of her trial team.
Paralegal Caroline Boyd stated that they did not pack up any materials from the courtroom
until after the verdict was read, but that the correct instructions and the two missing exhibits
later were found in their files. And IT Specialist Mac West testified similarly.
       5
         The defendants attached two affidavits to their response that contradicted Reynolds’s
trial team’s version of how and when the correct jury instructions were misplaced.

                                               5
¶7.    After a hearing, the trial judge entered a final judgment reflecting the jury’s defense

verdict. He also entered an order denying Reynolds’ motion for a mistrial, finding that “the

trial in this matter is in fact over.” But in that same order, the trial judge granted Reynolds

a new trial on his own motion. The trial judge said that he felt “compelled to grant a new

trial on [his] own initiative, pursuant to MRCP 59(d).” He found that “a refused preemptory

[sic] instruction, was mistakenly provided to the jurors, and the same has the likelihood of

being confusing and prejudicial.”6

¶8.    After Reynolds filed a motion for trial setting, the defendants filed a motion asking

the trial court to enforce the high/low settlement agreement and to dismiss the action with

prejudice. The defendants argued that “the parties’ high-low agreement cut off the right of

either party to pursue post-trial remedies . . . the possibility of a mistrial was specifically

considered by the parties. But the agreement also specifically recognized that neither side

retained the right to appeal and, by necessity, gave up any post-trial remedies.” The

defendants pointed out Reynolds’s counsel’s emphasis at the May 10 hearing that trial was

still ongoing7 as support for its interpretation and attached the emails detailing the high/low

agreement.




       6
        The trial judge said specifically in his order, though, that he reached his ruling
“without consideration of the juror affidavits submitted in conjunction with briefing on the
Plaintiff’s Motion for Mistrial.”
       7
         Reynolds’s counsel had argued: “This is critical, Your Honor. With all due respect,
I take issue with whether this is a post-trial proceeding. It is the plaintiff’s – and this – it’s
critical for a very important reason, Your Honor. I – I would argue to [the] Court that we
are still in the midst of a trial.”

                                                6
¶9.    Reynolds argued in response that the high/low agreement “was void of any specific

language addressing an order of a new trial or [JNOV],” and that a new trial was available

to the parties under the agreement. Reynolds also argued that the parties “did not choose to

forego available procedural relief before the trial court . . . ”

¶10.   After a hearing, the trial judge entered an order granting the defendants’ motion to

enforce settlement. The trial judge began his order by framing the issue presented to him in

the defendants’ motion:

       In that motion, for the first time, the Court learned of a purported settlement
       agreement, known as a “high-low agreement,” reached by the parties prior to
       the end of the trial. The parties do not dispute that a settlement agreement was
       reached – the dispute lies with the reach of the agreement and the parties’
       intent concerning post-trial procedure. Accordingly, the Court must determine,
       among other things, whether its ruling ordering a new trial, sua sponte,
       pursuant to MRCP 59(d) is affected by the agreement, which was unknown to
       the Court at the time of its order.

In short, as the trial judge said, he was to “determine whether, either from the face of the

contract or from applicable contractual canons or parol evidence, the parties intended to

preclude all post-trial motions.”

¶11.   The trial judge then found that the term “appeal rights” was undefined in the parties’

agreement, and that their intent concerning that term was unclear. Specifically, he found that

the statement “no party will retain any appeal rights” was “ambiguous as it relates to circuit

court post-trial proceedings.” After considering what he termed “parol evidence”—namely,

all the emails exchanged and the parties’ arguments at the hearings—he concluded that

       In considering the “totality of the circumstances” and by focusing on what the
       parties actually said, as the law requires, the Court finds that the parties’ intent



                                                7
       in reaching this “high-low settlement” was to preclude any post-verdict
       proceedings, including motions for new trial.

As such, the trial judge continued

       Due to this Court’s finding that no party was permitted to bring a Motion for
       New Trial under the terms of the settlement agreement, the Court, likewise,
       cannot enforce a Rule 59(d) order as there can be no reason “which may have
       been cited by a party” to base it on. Quite simply, the parties’ agreement
       prohibited them from filing this type of motion, and that same prohibition also
       precludes the enforcement of the Rule 59(d) Order of this Court.[8]

Based on this reasoning, the trial judge granted the defendants’ motion, dismissed the action

with prejudice, and declared his previous order granting a new trial null and void.

¶12.   Reynolds filed a motion for reconsideration, which the trial judge denied. Reynolds

now appeals to this Court and presents five issues:

       1.     The verdict was void because the jury received the wrong
              instructions;

       2.     The wrong instructions were an extraneous influence warranting
              immediate mistrial;

       3.     There was no appeal that triggered enforcement of the agreement;

       4.     The parties never agreed to be bound by an improper verdict; and

       5.     An agreement cannot bind parties to an improper verdict.

We find issues one and three dispositive, and we decline to address Reynolds’s remaining

issues. So ultimately, we reverse for two reasons: first, because the jury verdict lacked

validity and, as such, no “verdict” has been “achieved,” leaving the condition precedent to

       8
        Mississippi Rule of Civil Procedure 59(d) provides, in pertinent part: “Not later than
ten days after entry of judgment the court may on its own initiative order a new trial for any
reason for which it might have granted a new trial on motion of a party.” (Emphasis
added.)

                                              8
the high/low agreement unsatisfied; and second, because the term “appeal rights” is not

ambiguous, and nothing else in the agreement prevents a new trial.

                                       DISCUSSION

       1.     The verdict was obtained after the jury was provided incorrect
              instructions.

¶13.   Reynolds argues that the “jury’s verdict in this case was completely void because it

was based upon the wrong set of instructions.” And as such, argues Reynolds, the trial judge

should have granted a mistrial. While we agree with Reynolds’s substantive arguments, we

do not agree that a mistrial was appropriate after the jury had rendered its verdict. So in

short, we agree with the trial judge’s initial order denying a mistrial but granting new trial.

¶14.   Jury instructions must “inform the jury sufficiently of the applicable law.” Miss.

Valley Silica Co., Inc. v. Eastman, 92 So. 2d 666, 668 (Miss. 2012) (emphasis added). “A

party is entitled to have instructions given that are supported by sufficient, credible evidence

and that accurately state the law of the case.” Id. at 669 (emphasis added). This Court has

reversed where a trial judge “eviscerated” a party’s case by denying its theory instructions.

Id. And as this Court repeatedly has stated, “Generally speaking, our law presumes that

jurors follow the trial judge’s instructions, as upon their oaths they are obliged to do.”

Young v. Guild, 7 So. 3d 251, 263 (Miss. 2009) (emphasis added).

¶15.   This Court has used the term “void” to describe verdicts rendered when certain

“irregularities” are present:

       Whilst the law is rigidly vigilant in guarding and preserving the purity of jury
       trials, yet it will not for light or trivial causes, impugn the integrity of juries,
       or question the solemnity and impartiality of verdicts. But if the verdict be

                                                9
        given under circumstances which might conduce to an improper influence, or
        the natural tendency of which might be to produce bias or corruption, it
        cannot then be said to be above suspicion; and if it be not, it must fall short of
        that perfection which the law requires . . . “it is a well settled rule of practice
        incident to all jury trials, that after the jury are charged and have left the court
        to consider of their verdict, they are to be kept by themselves, without
        refreshment, and without communication with others, until they have agreed.
        Any departure from this rule is an irregularity. But it is not every irregularity
        which will render the verdict void, and warrant setting it aside. This depends
        upon another and additional consideration, namely, whether the irregularity
        is of such a nature as to affect the impartiality, purity and regularity of the
        verdict.”
        ....
        Common reason dictates to us what might “affect the impartiality, purity and
        regularity” of a verdict, and whatever might have that effect, will vitiate it . . .
        when there is an irregularity which may affect the impartiality of the
        proceedings, as where [the jury has] had communications not authorised [sic],
        there, inasmuch as there can be no certainty that the verdict has not been
        improperly influenced, the proper and appropriate mode of correction and
        relief is by undoing what is thus improperly and may have been corruptly done
        ....

Hare v. State, 5 Miss. 187, 192-94 (1839) (emphasis added) (citations omitted).

¶16.    It is difficult to imagine a scenario more prejudicial to a party than what occurred

here.    The jury mistakenly was provided a copy of the defendants’ proffered

instructions—some of which had been withdrawn, and some of which had been outright

denied—and the first instruction they read told them to find for the defendants. What is

more, the bailiff—an extension of the court and trial judge—provided the instructions, which

“carries with it the imprimatur of authority.” Collins v. State, 701 So. 2d 791, 795 (Miss.

1997). We agree with the trial judge that extraneous material “was mistakenly provided to

the jurors, and the same has the likelihood of being confusing and prejudicial.”




                                                10
¶17.   We also agree with the trial judge that a mistrial was unavailable, because the trial was

“in fact over.” Reynolds relies chiefly on Uniform Rule of Circuit and County Court Practice

3.12 in support of her argument that a mistrial was appropriate. But we find no support for

Reynolds’s argument in the plain language of the rule:

       Upon motion of any party, the court may declare a mistrial if there occurs
       during the trial, either inside or outside the courtroom, misconduct by the
       party, the party’s attorneys, or someone acting at the behest of the party or the
       party’s attorney, resulting in substantial and irreparable prejudice to the
       movant’s case.

       Upon motion of a party or its own motion, the court may declare a mistrial if:

       1. The trial cannot proceed in conformity with law; or
       2. It appears there is no reasonable probability of the jury’s agreement upon a
       verdict.

URCCC 3.12. Neither party is claiming here that misconduct occurred. And once the jury

has returned a verdict, there is no longer a “trial” that “cannot proceed in conformity with the

law.” So the trial judge was correct to deny a mistrial, but to grant Reynolds a new trial.

¶18.   The defendants devote several pages of their brief to the argument that Reynolds

should get no relief because the proper jury instructions ultimately were found in her

attorneys’ files. But this Court repeatedly has said that it is the trial court’s responsibility to

instruct the jury. See, e.g., Mississippi Valley Silica Co., Inc. v. Eastman, 92 So. 3d 666,

669 (Miss. 2012) (“But another principle, ingrained in our law, places upon the trial judge

the ultimate duty to instruct the jury properly.”); Kolberg v. State, 829 So. 2d 29, 45 (Miss.

2002) (“There is no doubt that the trial court is ultimately responsible for rendering proper

guidance to the jury via appropriately given jury instructions, even sua sponte.”). That the



                                                11
correct instructions later were found in Reynolds’s attorneys’ materials does not excuse the

court from its responsibility to ensure that the proper instructions were provided to the jury

¶19. So in sum, we find that the jury’s verdict here was vitiated. As such, the high/low

agreement has no effect yet, because the condition precedent—a jury verdict—has not

occurred. So we reverse the trial judge’s decision to void his initial order and we remand the

case with instructions to the Court to reinstate that order, which denied a mistrial but granted

Reynolds a new trial.

       2.     The phrase “appeal rights” is not ambiguous.

¶20.   Reynolds argues also that the plain language of the agreement did not prohibit a new

trial. Specifically, Reynolds argues that “[b]ecause the new trial ordered in this case is not

an ‘appeal,’ it could not have been barred by the agreement.” Reynolds also argues that

“[o]nly through dramatically changing the literal definition of the word ‘appeal’ could the

trial court reach the result that a new trial would be prohibited.”

¶21.   As discussed above, the parties agreed that none of them would “retain any appeal

rights.”9 The trial judge found this phrase ambiguous and ultimately concluded that the

parties intended to preclude any post-trial proceedings. But we find that the phrase “appeal

rights” is unambiguous. And as such, the trial judge erred when he considered what he

termed “parol evidence”—including the emails exchanged between the parties (some of

which predated the actual agreement), and their arguments at the various hearings.



       9
        We note that the parties’ arguments regarding the phrase “appeal rights” focused on
post-trial remedies before the trial court. The defendants do not argue that this appeal is
barred by the agreement.

                                              12
¶22.   It is well-settled that the first step in contract interpretation is to determine whether

the contract is ambiguous. McFarland v. McFarland, 105 So. 3d 111, 1119 (Miss. 2013).

If a contract is not ambiguous, “then it must be enforced as written.” Id. (emphasis added).

In this step, the Court analyzes the “express wording of the contract and enforces the plain

meaning where there is no ambiguity.” Id. Webster’s Dictionary defines “appeal” as “a legal

proceeding by which a proceeding is brought from a lower to a higher court for rehearing.”

Appeal, Webster’s Dictionary (3d ed. 1976) (emphasis added). And Black’s Law Dictionary

defines it as “a proceeding undertaken to have a decision reconsidered by a higher authority;

esp., the submission of a lower court’s or agency’s decision to a higher court for review and

possible reversal.” Appeal, Black’s Law Dictionary (2d pocket ed. 2001) (emphasis added).

¶23.   There is no ambiguity in the phrase “appeal rights.” And we see no other restrictions

and/or waivers in the parties’ agreement that prohibit a new trial. On the contrary, the parties

twice contemplated the possibility of another trial.10 As such, we find that the trial judge

erred when he granted the defendants’ motion to enforce settlement and reversed his prior

order granting a new trial.

                                      CONCLUSION

¶24.   We reverse for two reasons: first, because the jury verdict lacked validity and, as such,

no “verdict” has been “achieved,” leaving the condition precedent to the high/low agreement



       10
        “[W]e clarified that if there is a mistrial for some reason, we agree that the high/low
agreement would remain in place until we achieve a verdict.” (Emphasis added.) “But I
think we are all on the same page and understand now. The low would be paid within 10
days of when this trial finishes, however it finishes, and the high would still be available
should there be another trial.” (Emphasis added.)

                                              13
unsatisfied; and second, because the term “appeal rights” is not ambiguous, and nothing else

in the agreement prevents a new trial. We therefore reverse the trial judge’s decision to void

his initial order and we remand the case with instructions to the trial court to reinstate that

order, which denied a mistrial but granted Reynolds a new trial.

¶25.   REVERSED AND REMANDED.

    WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING,
COLEMAN, MAXWELL AND BEAM, JJ., CONCUR.




                                              14
