                   IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2010-IA-00131-SCT

RIVERBEND UTILITIES, INC.

v.

HUGH EDWARD BRENNAN AND SHANDA
MELISSA BRENNAN, MERANDA IVY BRENNAN,
AND SARAH ELIZABETH MARUT


DATE OF JUDGMENT:                          01/05/2010
TRIAL JUDGE:                               HON. LAWRENCE PAUL BOURGEOIS, JR.
COURT FROM WHICH APPEALED:                 HARRISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   BRENDA G. LONG
                                           MICHAEL BRYAN DICKINSON
ATTORNEYS FOR APPELLEES:                   HARRY VINCENT SATTERWHITE
                                           BRIAN THOMAS PUGH
NATURE OF THE CASE:                        CIVIL - OTHER
DISPOSITION:                               REVERSED AND REMANDED - 08/25/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


      BEFORE WALLER, C.J., RANDOLPH AND CHANDLER, JJ.

      RANDOLPH, JUSTICE, FOR THE COURT:

¶1.   In this interlocutory appeal, Riverbend Utilities alleges that the trial court erred by:

(1) adding Arch Insurance Company as an involuntary counterplaintiff, and (2) ordering

Riverbend to make four individuals available for deposition.

                      FACTS AND PROCEDURAL HISTORY
¶2.    In August 2006, sewage backed up into a home occupied by Hugh Brennan, Shanda

Brennan, Meranda Brennan, Diana Marut, and Sarah Marut1 (“the Brennans”) in Saucier.

The Brennans reported the problem to Riverbend, which provided their water and sewer

services. Riverbend and its insurance carrier, Arch, paid approximately $40,000 for cleanup,

repair, storage, and claims for damages. Riverbend paid approximately $2,000 and Arch paid

approximately $10,000 directly to vendors, with the remaining $28,000 paid directly to the

Brennans by Arch.

¶3.    In March 2008, the Brennans sued Riverbend, alleging negligence. During discovery,

Riverbend learned that the Brennans’ home had suffered damage from Hurricane Katrina in

August 2005. In August 2009, with leave of the trial court, Riverbend counterclaimed,

alleging that the Brennans had submitted the same invoices to Riverbend that they previously

had submitted to their homeowner’s insurance provider, and that they had been paid by that

insurer.

¶4.    In September 2009, the Brennans’ attorney stated the following in a letter:

       We will now file a motion to have the insurance carrier named as a party in
       interest in this case. Strategically, we believe fighting against a large
       corporation and its insurance carrier will probably be easier than fighting the
       corporation alone. We believe this is a good development in presenting this
       case to the jury as well.

In October 2009, the Brennans filed a “Motion to Add [Arch] as a Real Party in Interest,”

requesting that the trial court order Arch to “be made a party Counterplaintiff in this action,

or in the alternative, if [Arch] refuses to join as Counterplaintiff, it be added as a Defendant

as provided by Rule 19(a) Miss.R.Civ.P.” The Brennans now state that they filed the motion

       1
           Diana Marut was voluntarily dismissed with prejudice in March 2009.

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“for it to be clear on the record that [Arch] is the party that the alleged fraud was committed

against . . . .” As a part of its response to the Brennans’ motion, Riverbend attached Arch’s

“Rule 17 Certificate of Ratification,” which was dated November 3, 2009. See Miss. R. Civ.

P. 17. It stated:

         [Arch], pursuant to Rule 17(a) . . . , hereby ratifies [Riverbend]’s
         commencement of Counter-Claim against [the Brennans] and assigns its
         subrogation claims to Riverbend and agrees that Riverbend continue to
         prosecute the Counter-Claim on ARCH’s behalf for its benefit and further
         agrees to be bound by the final determination in this case.

¶5.      In December 2009, the trial court heard argument on the motion to add Arch, as well

as a motion to compel Riverbend to answer interrogatories. The Brennans alleged that

Riverbend had not answered questions related to the invoices at issue. The Brennans claimed

also that they had not had an opportunity to depose certain employees of Arch and its agents.

From the bench, the trial court granted the motion to compel Riverbend to answer the

interrogatories and ordered Riverbend’s attorney 2 to “[g]ive [the Brennans] all the names of

anybody who knows anything about this counterclaim. [Their attorney will] take depositions

of them.” Later, the trial court told the Brennans’ attorney to “[t]ake their depositions if you

want.”

¶6.      On the motion to add Arch, the Brennans argued that, “because [Arch] maintains a

pecuniary interest in this case, . . . they’re clearly a party to this case.” In answer to a

question from the trial court, Riverbend acknowleged that Riverbend and Arch had reached

an agreement on how to divide the judgment if Riverbend were to prevail. Based on this




         2
             The same attorney represented Riverbend and Arch.

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statement, the trial court found that Arch had a pecuniary interest in the case in spite of the

Rule 17 Certificate of Ratification.

¶7.    On January 5, 2010, the trial court issued its order, as follows:

              The Court finds that [Arch] has a pecuniary interest in the outcome of
       the Counterclaim. [The Brennans]’ motion to Add [Arch] as a Real Party in
       Interest is GRANTED. [Arch] shall be added to this cause as a
       Counterplaintiff.

               [The Brennans]’ Motion to Compel [Riverbend] to Properly Answer .
       . . Interrogatories is GRANTED. [Riverbend] shall fully and specifically
       answer Interrogatories . . . within 10 days of the date of this Order.
       Furthermore, [Riverbend] shall make the following persons available for
       deposition before January 29, 2010: Bryan Wakefield, Laraine Allred, Jeffrey
       Davis and Rick Pridgen.

(Emphasis in original.)

¶8.    On January 28, 2010, the trial court stayed all proceedings based on Riverbend’s filing

of this interlocutory appeal. Riverbend appealed both issues. This Court granted an

interlocutory appeal.

                                           ISSUES

¶9.    The issues are:

       I.     Whether the trial court abused its discretion in joining Arch as an
              involuntary counterplaintiff.

       II.    Whether the trial court abused its discretion in compelling Riverbend
              to make available for deposition individuals who are not its employees,
              not parties, and not residents of Mississippi.

                                        ANALYSIS

¶10.   “The standard of review regarding joinder . . . is abuse of discretion.” Dillard's, Inc.

v. Scott, 908 So. 2d 93 (Miss. 2005) (citing Ill. Cent. R.R. v. Travis, 808 So. 2d 928, 931



                                              4
(Miss. 2002)). “[I]n discovery matters trial courts have considerable discretion and should

be reviewed with great deference.” Cucos, Inc. v. McDaniel, 938 So. 2d 238, 242 n.1 (Miss.

2006) (citing Allen v. Nat'l R.R. Passenger Corp., 934 So. 2d 1006, 1008-09 (Miss. 2006)).

       I.     Whether the trial court abused its discretion in joining Arch as an
              involuntary counterplaintiff.

¶11.   The trial court found that Arch would benefit if Riverbend prevailed on its

counterclaim. Thus, it ordered that Arch should be joined as an involuntary counterplaintiff

based on the Brennans’ motion to add Arch as a real party in interest.

¶12.   Riverbend argues that this case is controlled by this Court’s holding in Turner v.

Haynes, 489 So. 2d 494 (Miss. 1986), and that the trial court erred by not giving effect to

Arch’s ratification. In part, Rule 17 provides the following:

       (a) Real Party in Interest. Every action shall be prosecuted in the name of the
       real party in interest. An executor, administrator, guardian, bailee, trustee, a
       party with whom or in whose name a contract has been made for the benefit
       of another, or a party authorized by statute may sue in his representative
       capacity without joining with him the party for whose benefit the action is
       brought. No action shall be dismissed on the ground that it is not prosecuted
       in the name of the real party in interest until a reasonable time has been
       allowed after objection for ratification of commencement of the action by, or
       joinder or substitution of, the real party in interest; and such ratification,
       joinder or substitution shall have the same effect as if the action had been
       commenced in the name of the real party in interest.

Miss. R. Civ. P. 17(a).

¶13.   In Turner, an insured brought a negligence case, which was dismissed under Rule

17(b) after she refused to join her insurer. Turner, 489 So. 2d at 495. Compulsory joinder

was never at issue in Turner. This Court found that the function of Rule 17 was to “protect

litigants from harassment and multiple suits by persons who would not be bound by the



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principles of res judicata and to enable the defendant to present his defenses against the

proper persons and to proceed to finality of judgment.” Id. at 496. This Court found that

Rule 17(b) was inapplicable, as no party was claiming subrogation rights. Id. at 497.

Applying Rule 17(a), this Court reversed the dismissal. Id. at 497-98. The Court applied the

rule’s language that ratification has the same effect as if the suit had been brought originally

by the real party in interest. See Miss. R. Civ. P. 17(a). This Court held the following:

       [The insurer] assigned its interest to [the insured] and waived the right to
       participate in this action. [Insurer] is looking entirely to [insured] for
       reimbursement in the event of a successful termination of the suit. Just as in
       [Peyton v. Pascagoula Drayage Co., 69 F.R.D. 19 (N.D. Miss. 1975)], “the
       carrier has assigned to the plaintiff whatever rights it may have by virtue of its
       subrogation and has chosen, instead, to rely upon its contractual right against
       the plaintiff in the event of a recovery.” [Id. at 20.] This Court holds that
       [insurer] has ratified the action of [insured] and is no longer a real party in
       interest as contemplated by Mississippi Rule 17(a). Our holding is
       strengthened by the fact that [defendant] does not face a subsequent judgment
       from [insurer] for reimbursement of monies paid to [insured]. Likewise,
       [defendant] has no defenses against [insurer] that it does not have against
       [insured]. It appears unnecessary to require [insurer] to participate, expend
       legal fees and time in a lawsuit in which it has only a contingent interest
       against [insured], not . . . the defendant.”

Turner, 489 So. 2d at 497-98.

¶14.   Turner is directly on point with this case. Arch ratified the actions of Riverbend,

waived the right to participate, assigned any claim it might have to Riverbend, and agreed

to be bound by the result. Arch looks to Riverbend via a contractual right for recovery.

Thus, Arch is not a real party in interest in the counterclaim against the Brennans. The

purpose of Rule 17 is met; the Brennans will not be subject to further litigation, as collateral

estoppel will prevent Arch from reversing its agreement to be bound by the final




                                               6
determination. See Turner, 489 So. 2d at 496; James v. Nashville Bridge Co., 74 F.R.D.

595, 597 (N.D. Miss. 1977).

¶15.   The Brennans attempt to distinguish Turner by pointing out that the insurer in that

case ratified before the lawsuit was filed, while Arch ratified after the Brennans moved to

add it as a party. However, the language of Rule 17(a) defeats this argument, allowing for

a reasonable time “after objection for ratification.” Miss. R. Civ. P. 17(a). Indeed, this Court

has recognized ratification subsequent to judgment. See Kirk v. Pope, 973 So. 2d 981, 989

(Miss. 2007) (quoting Jenkins v. Wright & Ferguson Funeral Home, 215 F.R.D. 518, 522

(S.D. Miss. 2003) (“A valid ratification requires the ‘ratifying party to authorize continuation

of [the] action and agree to be bound by the result.’”) Thus, we find that the trial court erred

in ordering that Arch be made a party to the counterclaim.

       II.    Whether the trial court abused its discretion in compelling
              Riverbend to make available for deposition individuals who are not
              its employees, not parties, and not residents of Mississippi.

¶16.   Riverbend argues that the order creates an “undue burden of being required to produce

individuals who are not employed with Riverbend, and whom Riverbend has no control

over.” Riverbend argues that, as a good-faith effort to comply with the order, it had

forwarded the notices, and that it had asked the individuals voluntarily to submit to a

deposition, but all four declined. Riverbend argues that it has no ability to require them

appear for deposition, as the four are not parties to the suit, not Riverbend employees, and

not Mississippi residents.

¶17.   The Brennans counter that the trial court has considerable discretion in discovery

matters. See Capital One Servs., Inc. v. Page, 942 So. 2d 760, 765 (Miss. 2006). The

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Brennans argue that, as Arch is a party, the trial court did not abuse its discretion in ordering

Riverbend to produce employees of Arch and its agents for deposition.3 As the individuals

noticed are not parties, Mississippi residents, or Riverbend employees, the trial court abused

its discretion in ordering Riverbend to be make them available for deposition. See generally

Syngenta Crop Prot., Inc. v. Monsanto Co., 908 So. 2d 121, 129 (Miss. 2005). As the trial

court stated, the Brennans may take the deposition of these individuals. In so doing, they

should use the normal procedure for taking out-of-state depositions, as provided in

Mississippi Rules of Civil Procedure. See Miss. R. Civ. P. 28(a).

                                       CONCLUSION

¶18.   The judgment of the Circuit Court for the First Judicial District of Harrison County

is reversed, and the case is remanded for further proceedings consistent with this opinion.

¶19.   REVERSED AND REMANDED.

    WALLER, C.J., CARLSON, P.J., LAMAR, KITCHENS, CHANDLER, PIERCE
AND KING, JJ., CONCUR. DICKINSON, P.J., NOT PARTICIPATING.




       3
         The Brennans contend also that Riverbend’s argument is contrary to its objections
to the interrogatories. The attorney who represented Riverbend and Arch objected on the
basis of attorney-client privilege. However, this is irrelevant to this Court’s finding on the
issue of producing these individuals for deposition.

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