                     IN THE SUPREME COURT OF MISSISSIPPI

                                  NO. 2013-IA-01529-SCT

GREG BARNES, SR., ON BEHALF OF GREG
BARNES, JR., A MINOR

v.

JEFFERSON DAVIS COUNTY SCHOOL
DISTRICT; AND MINNIE RACHEL GRIFFITH


DATE OF JUDGMENT:                            08/14/2013
TRIAL JUDGE:                                 HON. ANTHONY ALAN MOZINGO
TRIAL COURT ATTORNEYS:                       CHUCK R. McRAE
                                             CHRISTOPHER GREEN
                                             RAMEL L. COTTON
COURT FROM WHICH APPEALED:                   JEFFERSON DAVIS COUNTY CIRCUIT
                                             COURT
ATTORNEYS FOR APPELLANT:                     DAVID NEIL McCARTY
                                             CHUCK McRAE
                                             RAMEL LEMAR COTTON
ATTORNEY FOR APPELLEES:                      RICHARD D. NORTON
NATURE OF THE CASE:                          CIVIL - OTHER
DISPOSITION:                                 AFFIRMED AND REMANDED - 04/16/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



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

       LAMAR, JUSTICE, FOR THE COURT:

¶1.    A defendant’s trial testimony referred to a document that should have been produced

in discovery but was not. In view of this revelation, the plaintiff filed two post-trial motions:

one asking for new trial, judgment as a matter of law, or to reconsider; and one asking for

sanctions for the discovery violation. The trial judge granted the motion for a new trial and
recused from it, but he declined to rule on the sanctions issue, leaving that open for the next

judge to determine. The defendants subsequently admitted liability, leaving damages the sole

issue for the new trial. Now the plaintiff appeals, claiming the trial judge ruled on the case

after he had recused from it. The plaintiff also argues that the trial court abused its discretion

by not granting judgment as a matter of law as a sanction for alleged discovery violations.

Finding no merit in either argument, we affirm the order of the trial court and remand for

further proceedings.

                        FACTS AND PROCEDURAL HISTORY

¶2.    On October 13, 2010, Greg Barnes Jr. (“Junior”) was riding a Jefferson Davis County

School District (“Jeff Davis”) bus home from school. At one point the driver, defendant

Minnie Rachel Griffin, stopped the bus on a bridge, got out of the bus with Junior, and held

him over the edge of the bridge. After a brief exchange Griffin claims was just a joke,

Griffin put the child back on the ground, the two boarded the bus, and the route finished

without further incident. Jeff Davis superintendent Ike Haynes heard about the incident later

that evening. The next morning Haynes met with Griffin to address the incident, and at that

meeting, Griffin either quit or was fired.

¶3.    On October 24, 2011, Greg Barnes Sr. sued Griffin and Jeff Davis on Junior’s behalf,

alleging that the incident had caused Junior to “suffer[] from various forms of mental

anguish, including, but not limited to, nightmares, extreme fear and mental depression.”

Barnes Sr. also alleged that Junior had incurred medical expenses, and he demanded

$5,000,000.



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¶4.    Several different employee handbooks were mentioned during discovery, but neither

defendant mentioned a handbook specifically for bus drivers until Griffin mentioned it in her

trial testimony. When she was asked about the handbook she previously had identified in her

deposition testimony, the following exchange took place:

       Q. Is this the handbook you’re referring to? [indicating the handbook shown
       to her in the deposition].
       A. No.
       Q. Ma’am?
       A. No.
       Q. That was the handbook that –
       A. School – school bus drivers have their handbooks, students got their
       handbooks and the other employees have handbooks.

¶5.    Barnes’s counsel then objected to Griffin testifying about the bus-driver handbook,

since that was the first time it had been mentioned, and the trial judge sustained the objection.

The proceedings continued after that brief exchange, and the trial ended that day.

¶6.    On February 19, 2013, the trial court entered its opinion, ruling that Griffin and Jeff

Davis were both immune from the Barnes’s suit under the Mississippi Tort Claims Act and

dismissing the action with prejudice.

¶7.    On February 27, 2013, Barnes filed a Motion for Judgment as a Matter of Law, to

Reconsider, and/or for New Trial. Barnes accused Jeff Davis and Griffin of admitting “on

the morning of the trial that [the incident actually occurred]”1 and complained about their

“contrived failure to produce the drivers’ handbook.” Barnes argued that Pierce v. Heritage

Properties, 688 So. 2d 1385 (Miss. 1997), compelled the trial court to “strike the Defendants’

       1
       We note that Griffin testified in her November deposition—two months before the
trial—that she held Junior over the bridge as the complaint alleged. Nonetheless, Barnes’s
motions and briefs repeatedly assert that this admission was made on the day of trial.

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answers and render a default judgment against them and assess damages,” and he also

requested that the trial court “order that the handbook and or other documents be produce[d]

forthwith and that in the alternative re-open the trial and take testimony concerning the false

testimony given.” The defendants responded to Barnes’s motion, denying that there was any

“contrived failure to produce the driver’s handbook” and maintaining that “it is not

uncommon for witnesses to give additional testimony at trial or to give testimony that is

different than their previously sworn testimony.”

¶8.    Also on February 27, 2013, Barnes filed a Motion to Alter and Amend the Judgment

and to Compel Production of Documents and Sanctions. Barnes argued that he had

“requested during discovery for [sic] any manuals, books, or instructions given to [Griffin],

and [Jeff Davis] stated there was not any such book or manual.” Barnes attached the

defendants’ discovery responses and Griffin’s deposition testimony to his motion as support.

¶9.    Jeff Davis and Griffin responded to the motion, arguing that there was no misconduct

on their part, and that their counsel was as surprised as anyone when Griffin testified at trial

that she had seen another handbook besides the staff handbook. They also stated that their

discovery responses were being supplemented to provide two documents that were found in

post-trial research conducted because of Griffin’s testimony: a 2008-2009 Bus Driver

Handbook, and the Mississippi Professional Driver Manual, both of which were issued to

Griffin. But they also argued that the new documents did not give rise to any “substantive

issue[s] relating to the merits of this case.”




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¶10.   The trial judge held a hearing on the post-trial motions on August 5, 2013. After

Barnes’s counsel began his argument, the trial judge asked if defense counsel “believe[d] that

there was a substantial material disclosure to the plaintiffs, any discovery, since the trial?”

Defense counsel answered, “Yes, sir, Your Honor.” The trial judge then granted the motion

for a new trial, stating he did not need to know anything else.

¶11.   The judge continued:

       The plaintiffs did not have all of the information that they were entitled to
       before the trial occurred. And whether or not that substantial disclosure has
       any affect [sic] on the verdict, I can’t say. I do know this: This Court now
       knows too much about the case to be fair. It would be an injustice to both
       parties if this Court continued to take any more issues under consideration or
       rule any further. I’m going to put you all back in the same position you were
       in before the trial. And I’m going to recuse myself based on the fact that once
       the testimony and evidence came to light, that the position of the Court was
       compromised. And there’s no way, knowing what I know, that I could
       possibly disregard what my personal feelings are about the case since I’ve
       already rendered a bench verdict.

¶12.   Barnes’s counsel urged the court to rule on the motion for sanctions, but the trial judge

declined, stating that “ it would be improper for this Court to rule on any issues any further

based on what I know about the case and how my personal feelings would be impossible to

ignore.” Defense counsel then sought clarification, saying, “there are really three motions

that the plaintiff has called forward today. One is a motion for JNOV and a motion to alter

or amend the judgment. I believe the Court is ruling that – I take it that the Court is going

to vacate the judgment, is that what the Court was saying?” The trial judge confirmed that

he was vacating the judgment, and that he was transferring the trial to a different judge, or

to a judge appointed by this Court, for the new trial. Defense counsel tried one more time



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to get a ruling on the sanctions issue, but the judge replied “I would really like to, but for the

third time I’m going to stand by my decision, and that is I’m not going to rule any further on

anything.”

¶13.   On August 19, 2013, two weeks after the hearing, the trial judge entered an order

reflecting what he had ruled from the bench. That order listed the motions and their

dispositions as follows:

       1. That Plaintiff’s Motion for Judgment as a Matter of Law is DENIED;
       2. That Plaintiff’s Motion for Reconsideration is DENIED;
       3. That Plaintiff’s Motion for New Trial is hereby GRANTED;
       4. That the previous Opinion and Order of this Court, entered on February 19,
       2013, is hereby VACATED;
       That the undersigned hereby RECUSES from further proceedings in this civil
       action . . . .

¶14.   The trial judge also entered an order specifically on the recusal, which was filed on

August 9. That order of recusal stated, in pertinent part, that “Circuit Judge, Anthony

Mozingo, sua sponte, [] hereby recuses himself from presiding over the new trial in this

cause of action for reason of his prior involvement as judge in the first trial.” (Emphasis

added.)

¶15.   On October 4, 2013, the defendants filed a second motion to amend their answer and

attached the proposed Second Amended Answer. The amended answer admitted that Griffin

was negligent and that Jeff Davis was liable for the negligent actions of its employees and

that a trial “should be held to determine the injury suffered by Greg Barnes, Jr. and the

reasonable damages the minor child is entitled to.”




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¶16.   On November 27, 2013, this Court granted Barnes’s petition for interlocutory review

and stayed the trial-court proceedings.

                                        DISCUSSION

¶17.   Barnes makes two arguments on appeal. The first is that the trial court erred by

denying Barnes’s motion for discovery sanctions, and the second is that the trial judge

improperly ruled in a case from which he had recused. We find that the sanctions issue is not

properly before this Court because the trial court never ruled on that motion, and that the

recusal issue is without merit because the trial judge did not rule on the case after he recused.

I.     The issue of sanctions for discovery violations is not properly before this Court.

¶18.   Barnes argues that the trial court ruled on the discovery-sanctions issue when it denied

the motion for judgment as a matter of law and argues that “the only possible cure is [for this

Court] to enter judgment as a matter of law . . . .” Though the record before us is void of any

mention of monetary sanctions, Barnes’s counsel explained at oral argument that he was

seeking such sanctions; specifically, disgorgement of the attorneys’ fees that have been paid

to defense counsel.

¶19.   But the trial judge ruled only on the motion for a new trial, and he flatly refused to

rule on the motion for sanctions. Barnes is asking this Court to consider an issue on which

the trial court has yet to rule, and “[w]e have been consistent in holding that we need not

consider matters for the first time on appeal, which practice would have the practical effect

of depriving the trial court of the opportunity to first rule on the issue, so that we can then

review such trial court ruling under the appropriate standard of review.” Alexander v.



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Daniel, 904 So. 2d 172, 182 (Miss. 2005). Because the trial court did not rule on this issue,

it is not properly before this Court.

II.    The trial judge did not rule in the case after he recused from it.

¶20.   Barnes argues that the sequence of the trial judge’s orders resulted in his ruling in the

case after he had recused from it. This Court has held that “[i]t is fundamental that, once a

recusal occurs, no judge may take further action in a case.” Mississippi Comm’n on Judicial

Performance v. Osborne, 16 So. 3d 16, 23 (Miss. 2009). “Having recused himself from a

case, a judge has no more authority to take action in that case than does the ordinary citizen

on the street.” Mississippi Comm’n on Judicial Performance v. Skinner, 119 So. 2d 294,

300 (Miss. 2013).

¶21.   But here, the record is clear that the trial judge granted a new trial and recused from

presiding over that new trial. In post-trial motions, Barnes asked the trial judge for one of

three alternative dispositions: a new trial, reconsideration of the verdict, or judgment as a

matter of law. Each was mutually exclusive of the other two, so granting any one of them

necessarily meant denying the other two. Moreover, granting any one of the three motions

meant vacating the previous order.

¶22.   Stated another way, three things happened automatically when the trial judge granted

a new trial: (1) the previous judgment was vacated; (2) the alternative motion for

reconsideration was denied; and (3) the alternative motion for judgment as a matter of law

was denied. The only “ruling” issued by the trial judge after his recusal was an order

memorializing the rulings he previously had made from the bench; he did not rule on the



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sanctions issue or other additional issues. And importantly, our rules require the trial court

to enter such an order. See Miss. R. Civ. P. 58 (“Every judgment shall be set forth on a

separate document . . . .”) (emphasis added); Miss. R. Civ. P. 54(a) (“‘Judgment’ as used in

these rules includes . . . any order from which an appeal lies.”). See also Banks v. Banks,

511 So. 2d 933, 934 (Miss. 1987). As such, we find that the trial judge did not “rule” on

anything after he had recused himself from the case going forward.

                                       CONCLUSION

¶23.   Both of Barnes’s assignments of error are without merit. The trial judge did not “rule”

on anything after he had recused. And the trial court never “ruled” on the issue of sanctions;

the transcript clearly shows the trial judge declined to rule on such, and nothing in the record

contradicts that. As such, that issue is not properly before this Court. We therefore affirm

the order granting a new trial and denying judgment as a matter of law, and we remand this

case to the Circuit Court of Jefferson Davis County for further proceedings.

¶24.   AFFIRMED AND REMANDED.

    WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS,
CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.




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