              IN THE SUPREME COURT OF MISSISSIPPI

                         NO. 2017-CA-00133-SCT

REGGIE ELLIOTT AND BRENDA EJIMOFOR, AS
CO-ADMINISTRATOR AND CO-ADMINISTRATRIX
OF THE ESTATE OF JOE ORLANDO ELLIOTT,
DECEASED, ORLANDO ELLIOTT, AND FRANKIE
MITCHELL, AS CO-GUARDIANS OF ORLANDREA
ELLIOTT, A MINOR, MICHAEL ELLIOTT, AND
ALMA ELLIOTT

v.

AMERIGAS PROPANE, L.P.


DATE OF JUDGMENT:                12/14/2016
TRIAL JUDGE:                     HON. ANDREW K. HOWORTH
TRIAL COURT ATTORNEYS:           CASEY LANGSTON LOTT
                                 DUNCAN L. LOTT
                                 JAY MARSHALL ATKINS
                                 WARREN HORN
                                 JASON M. ZAGER
                                 MICHAEL J. TARLETON
                                 CHRISTY D. JONES
                                 ORLANDO RODRIQUEZ RICHMOND, SR
                                 MICHAEL E. McWILLIAMS
                                 MARK ALAN DREHER
                                 HARRY CASE EMBRY
                                 KENNETH MICHAEL FITZGERALD
                                 BARBRAE A. LUNDBERG
                                 PAUL PACIFIC BLAKE
                                 BRETT ANDREW SCHUBERT
                                 JOHN JEFFREY TROTTER
                                 BERNARD HESS BOOTH, III
                                 JESSE MITCHELL, III
COURT FROM WHICH APPEALED:       MARSHALL COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS:         JAY MARSHALL ATKINS
ATTORNEYS FOR APPELLEE:          MICHAEL J. TARLETON
                                 WARREN HORN
NATURE OF THE CASE:              CIVIL - WRONGFUL DEATH
DISPOSITION:                                AFFIRMED - 08/02/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



       BEFORE WALLER, C.J., COLEMAN AND MAXWELL, JJ.

       MAXWELL, JUSTICE, FOR THE COURT:

¶1.    An undetected flammable gas ignited and caused an explosion at the Elliotts’ home.

Because the Elliotts believed the flammable gas was natural gas from a broken municipal

pipeline, they filed suit against the city. They also sued the chain of vendors that supplied

the city with natural gas and related products. But a few years into litigation, the defendants

began pointing to the propane gas tank in the Elliotts’ yard. The defendants insisted propane

gas—not natural gas—was the source and cause of the explosion. While the Elliotts and

their experts adamantly denied that propane gas caused the explosion, the Elliotts amended

their complaint, adding claims against the propane gas vendor. They did so, not because they

sought to prove propane gas caused the explosion, but to avoid the risk of fault being

apportioned to a nonparty—or, as they put it, to cut off an “empty chair defense.”

¶2.    But their reason for joining the propane gas defendant is now gone. The Elliotts were

able to negotiate a settlement with the municipality. And summary judgment was previously

granted to all of their targets—the Natural Gas Defendants—which have all been dismissed.

So the Elliotts have no need to assert an empty chair defense.

¶3.    The posture of this case has placed the Elliotts in a quandary, and they now attempt

to change course to pursue the propane gas defendant—the defendant they admitted they did



                                              2
not believe caused the explosion. While our procedural law permitted the Elliotts to plead

inconsistent, alternative claims that the explosion could have been caused by either natural

gas or propane gas, it is not their pleadings that complicate this case. Rather, it is the decade

the Elliotts spent pursuing only their natural gas claims, assuring both federal and state court

judges that there was no merit or evidence supporting the propane gas theory. These various

written and oral representations prompted Circuit Judge Andrew K. Howorth to find the

Elliotts were bound by their cumulative admissions. Judge Howorth granted the propane gas

defendant summary judgment, preventing the Elliotts from now taking an inconsistent

position to pursue the propane gas defendant. Finding no error in the circuit judge’s ruling,

we affirm.

                        Background Facts and Procedural History

¶4.    Joe and Alma Elliott’s Holly Springs home exploded on April 3, 2008. Joe died as

a result, and Alma, her grandson Michael, and her infant granddaughter Olandrea were

severely injured.    Investigators quickly determined flammable gas had entered and

accumulated in the Elliotts’ home. The gas was then ignited, and, after initially starting a

fire, caused an explosion. The next morning, the Holly Springs Utility Department’s

(HSUD) assistant superintendent investigated the scene and noticed “bubbling in the street.”

HSUD supplied natural gas to Holly Springs customers through an underground pipe

network. Tests revealed a gas leak under Cuba Street, about sixty to seventy feet from the

Elliotts’ home. And one of the Elliotts’ neighbors told investigators he had smelled natural

gas in the neighborhood “off and on” before the explosion.



                                               3
       I.     The Elliotts’ Complaint

¶5.    On October 14, 2008, the Elliotts filed suit against HSUD, who owned and maintained

the municipal gas distribution pipelines and supplied natural gas to customers. They also

sued El Paso Corporation, a natural gas supplier, and numerous John Does. As discovery

progressed, the Elliotts amended their complaint six times and replaced John Does with

named defendants. By their final amendment, the Elliotts had named, in addition to HSUD

and El Paso, Tennessee Gas & Pipeline Company, the subsidiary of El Paso that directly

supplied natural gas to HSUD. They also named Tri-State Meter and Regulator Service, Inc.,

which supplied HSUD with warning odorant for its natural gas, and Chevron Phillips

Chemical Company, L.P., Tri-State’s warning-odorant supplier. These companies became

known as the “Natural Gas Defendants.”

¶6.    The Elliotts claimed the Natural Gas Defendants were negligent and supplied a

defective product—the warning odorant. Their theory was that natural gas from the broken

Cuba Street pipeline traveled through the ground to their home. And the allegedly defective

warning odorant was removed, or adsorbed, in the process. This caused natural gas to

accumulate in the house without warning, leading to the explosion.

¶7.    The Natural Gas Defendants denied liability. They pointed out the Elliotts’ home was

not connected to a natural gas pipeline. Instead, their home used propane gas, supplied by

a large tank in their yard.     The Natural Gas Defendants asserted that the fire and

explosion—which originated near a propane heater in Joe and Alma’s bedroom—were

caused by propane gas, not natural gas. In response to this finger-pointing by the Natural Gas



                                              4
Defendants, the Elliotts named AmeriGas Propane, L.P., as a defendant, claiming AmeriGas

was negligent and supplied a defective product. But they did not assert propane caused the

explosion. As they described it, the only reason for naming AmeriGas was to prevent an

“empty chair defense.”

¶8.    Even    after   pleading    claims    against      AmeriGas,   the   Elliotts repeatedly

represented—both in state and federal court—that they were “not buying the Natural Gas

Defendants’ theory” about propane gas. The Elliotts instead maintained that natural gas

caused the fire and explosion.

¶9.    When the defendants sought to remove the case to federal court after AmeriGas was

added as a defendant, District Judge Michael P. Mills remanded the case back to Marshall

County Circuit Court. He based his remand on the Elliotts’ direct assertions to him that

natural gas—not propane gas—had caused the explosion. And the Elliotts represented to the

judge they would only present evidence to that effect.

¶10.   AmeriGas, with the Natural Gas Defendants joining in, had argued that when the

Elliotts made claims against AmeriGas, the case had been so substantially altered that it

constituted a new suit. Thus, the thirty-day removal period had been revived. See 28 U.S.C.

§ 1446. But the Elliotts fought against removal, representing to the federal judge that their

experts “have always opined that this explosion was caused by natural gas[.]” The Elliotts

assured Judge Mills they would not offer any evidence or testimony that propane caused the

explosion and “AmeriGas knows it.” They maintained “the addition of AmeriGas will not

affect the proof presented by the plaintiffs at trial.”



                                                5
¶11.   Because the Elliotts admitted they were not targeting AmeriGas, the Elliotts argued

the “same factual situation” was present as had existed before AmeriGas had been sued.

Thus, the removal period had not been revived. The district judge acted on the Elliotts’

assurances and found that:

¶12.   Plaintiffs’ rationale in adding AmeriGas is that their attorney simply wished to
       avoid the apportionment of fault to a non-party at trial. Thus, the target of the
       Plaintiffs’ attack, by their own admission, is not AmeriGas. Plaintiffs intend
       to present the same evidence at trial as they had planned prior to their third
       amendment . . . [the] Plaintiffs’ legal theory of the case remains the same.

(Emphasis added.) For these reasons, Judge Mills remanded the case to state court.

¶13.   After the case was remanded, the Elliotts made later amendments, based on

subsequent deposition testimony, to their claims against AmeriGas. But they consistently

represented to the court—both orally and in writing—that propane gas did not cause the

explosion. The Elliotts even sought to exclude evidence and expert testimony that propane

gas had caused the explosion.

       II.    AmeriGas’s First Summary-Judgment Motion

¶14.   After remand to state court, AmeriGas filed its first motion for summary judgment.

It argued the Elliotts had judicially admitted that propane gas did not cause the explosion.

And even while arguing against summary judgment, the Elliotts continued to insist that

natural gas had caused the explosion. The Elliotts made it clear they were actively trying to

undercut the propane gas theory.1

       1
         The Elliotts filed a motion in limine to exclude expert testimony that propane gas
had caused the explosion. And they asserted that only “until such time as this Court grants
Plaintiffs’ forthcoming motion in limine to exclude [the Natural Gas Defendants’ experts],
the natural gas Defendants’ theory of the case remains a viable one for the jury to consider

                                              6
¶15.   The Elliotts did not plead or argue that causation was unknown and therefore a jury

question. Instead, it is the Elliotts’ response to AmeriGas’s first summary-judgment motion

that perhaps best portrays their view that AmeriGas was not the target of their lawsuit. As

they framed it:

¶16.   [The] [d]efendants will present this theory to the jury as a potential explanation
       for how this explosion could have resulted from the ignition of propane gas,
       as opposed to natural gas. If the Court would like to find as a matter of law
       that the natural gas Defendants have failed to produce any admissible evidence
       that the subject explosion was caused by propane gas as opposed to natural gas
       . . . then Plaintiffs are happy for AmeriGas to go home.

(Emphasis added.) Still, even in light of this insistence, the trial judge was hesitant to grant

AmeriGas summary judgment at that stage. So AmeriGas remained a defendant.

       III.   AmeriGas’s Second Summary-Judgment Motion

¶17.   Meanwhile, all the Natural Gas Defendants had likewise moved for summary

judgment. And Judge Howorth, with one exception, granted summary judgment in the

Natural Gas Defendants’ favor.              Tri-State—the sole remaining natural gas

defendant—appealed. So did the Elliotts.

¶18.   On appeal, this Court in a unanimous opinion found summary judgment was

appropriate for all Natural Gas Defendants. See Elliott v. El Paso Corp. et al., 181 So. 3d

263 (Miss. 2015).2 It was only after the Elliotts’ claims against all Natural Gas Defendants

were dismissed that the Elliotts switched course. At that point, they began a full-throttle


and AmeriGas must remain at the table.”
       2
        Presiding Justice Dickinson authored the opinion, joined by Chief Justice Waller
and Justices Lamar, Kitchens, Chandler, Pierce, King and Coleman. Presiding Justice
Randolph did not participate.

                                               7
pursuit against AmeriGas.

¶19.    After this Court’s decision in El Paso, AmeriGas filed a second motion for summary

judgment. In it, AmeriGas asserted the Elliotts had no evidence that propane gas had caused

the explosion. It also renewed its argument that the Elliotts had judicially admitted propane

gas was not the cause. This time, Judge Howorth agreed with AmeriGas. He found the

Elliotts’ statements and briefs against the propane gas theory during litigation had

compounded and were judicial admissions.

¶20.    As Judge Howorth saw it:

        [T]here is no question that the case that the plaintiff wants to present now was
        a case that was going to come in through the back door. Through the
        defendants who are not here any more. That is a fact. And that does not in
        and of itself mean that he can’t now present that case which is what he intends
        to do. But it sure is a twisted way to arrive at where we are.

Judge Howorth quipped that the case “went to the Supreme Court with [a] heart beat and it

came back on life support. And the question for me is whether or not it’s my job to pull the

plug . . . .” He noted “for the record that the judicial admissions to some extent are

cumulative and we have more today than we had the last time we were in court.” Based on

these admissions and the “factors argued by . . . Amerigas,” he granted AmeriGas summary

judgment. Judge Howorth emphasized his history with the case and “hope[d] that if [this

case] is looked at again the appellate court will appreciate how difficult this is to wrestle

with . . . .”3

        IV.      The Present Appeal

        3
         Judge Howorth was highly complimentary of Mr. Lott, who had diligently pursued
the Elliotts’ case for many years.

                                               8
¶21.    The Elliotts now appeal to this Court. They argue Judge Howorth wrongly deemed

their various oral and written representations to state and federal courts judicial admissions.

In their view, they merely pleaded alternative claims under Mississippi Rule of Civil

Procedure 8(e)(2), and AmeriGas was not entitled to summary judgment. The Elliotts further

insist Judge Howorth wrongly denied their motion for a seventh amended complaint,

deprived them of their constitutional right to a jury trial, and did not follow the law of the

case.

¶22.    We review de novo a trial court’s grant or denial of summary judgment. Young v.

Smith, 67 So. 3d 732, 741 (Miss. 2011) (citing J.R. v. Malley, 62 So. 3d 902, 905 (Miss.

2011)). “Summary judgment is proper only when no genuine issue of material fact exists,

and the moving party is entitled to judgment as a matter of law.” Owen v. Pringle, 621 So.

2d 668, 670 (Miss. 1993) (citations omitted). To determine whether a material fact is in

dispute, “the court reviews ‘all admissions, answers to interrogatories, depositions, affidavits,

and any other evidence, viewing the evidence in a light most favorable to the non-movant.’”

Id. (quoting Skelton v. Twin Cty. Rural Elec. Ass’n, 611 So. 2d 931, 935 (Miss. 1992)).

                                          Discussion

¶23.    After review, we find the record shows the Elliotts made pointed and contradictory

representations about the propane gas theory in statements and briefs before both federal and

state courts, and Rule 8(e)(2) does not apply. We see no error in the trial judge’s ruling, as

his decision was not focused on the Elliotts’ pleadings but rather their representations made

after the pleadings. A trial judge may certainly find oral or written representations in briefs



                                               9
or by counsel are judicial admissions. But even if that was not the case here, AmeriGas is

still entitled to summary judgment because the Elliotts failed to meet their burden of

production, since there is no causation evidence to support claims against AmeriGas.

       I.     The Elliotts’ Propane Gas Claims

¶24.   From the outset, this Court recognizes the trial judge, the Elliotts, and AmeriGas

found themselves in a difficult case, factually and procedurally. Ultimately, Judge Howorth

found the Elliotts’ cumulative judicial admissions over nearly ten years of litigation entitled

AmeriGas to summary judgment. He found the Elliotts had admitted that propane gas did

not cause the explosion. And with no contrary evidence, they were prohibited from now

changing positions.

              A.      Judicial Admissions

¶25.   Judicial admissions are formal concessions in pleadings or stipulations by a party or

counsel that are binding on the party making them. Martinez v. Bally’s Louisiana, Inc., 244

F.3d 474, 476 (5th Cir. 2001). While not itself evidence, a judicial admission has the effect

of withdrawing a fact from contention. Id.

¶26.   The Elliotts insist they made no admissions but instead merely pleaded alternative,

inconsistent theories of liability, which Mississippi Rule of Civil Procedure 8(e)(2) permits

them to do. The Elliotts are correct in one respect. Rule 8(e)(2) does permit pleading

alternative, inconsistent, claims. And had Judge Howorth held against the Elliotts the

inconsistent allegations in their amended complaint, then Rule 8(e)(2) would require this

Court to reverse that ruling. See Henry v. Daytop Village, Inc., 42 F.3d 89, 95 (2d Cir.



                                              10
1994) (finding the court may not hold one claim “as an admission against another alternative

or inconsistent claim”). But that is not what Judge Howorth did. His ruling did not hinge

on the inconsistent factual allegations in the Elliotts’ amended complaint. Instead, his

decision was based on the numerous factual assertions that—despite what the amended

complaint said—propane gas did not cause the explosion. See Purgess v. Sharrock, 33 F.3d

134, 144 (2d Cir. 1994) (holding that a trial court may hold statements by an attorney or by

a party in a brief as a binding judicial admission of fact).4

¶27.   In other words, the record bears out that the Elliotts never argued that either the

Natural Gas Defendants or AmeriGas were to blame. Instead, for almost ten years they

represented that only the Natural Gas Defendants were responsible. So this is simply not a

situation covered by Rule 8(e)(2). Rule 8(e)(2) gives no protection to a party who at every

turn discounts and attempts to defeat its supposed alternate theory. See Schott Motorcycle

Supply, Inc. v. Am. Honda Motor Co., Inc., 976 F.2d 58, 61-62 (1st Cir. 1992) (holding that,

because the plaintiff’s factual admission “was not made in the context of an alternative or

hypothetical pleading,” it was not protected by Rule 8(e)(2)).

¶28.   Essentially, Judge Howorth estopped the Elliotts from taking a completely opposite

position than the one they repeatedly took throughout the course of litigation—an action he

was authorized to take. See Rankin v. Am. Gen. Fin., Inc., 912 So. 2d 725, 728 (Miss.

2005) (affirming the trial court’s ruling that a plaintiff was estopped from raising in state

       4
          See also City Nat’l Bank v. United States, 907 F.2d 536, 544 (5th Cir. 1990)
(statements of fact in briefs, particularly summary judgment briefs, may be treated as binding
judicial admissions); United States v. McKeon, 738 F.2d 26, 30 (2d Cir. 1984) (a statement
by an attorney may be admissible against his or her client).

                                              11
court claims that had been abandoned in federal court for the purpose of having the case

remanded). He recognized that it was a “fact” that they were now trying to push a claim

“through the back door”—a claim they had asserted solely to prevent an “empty chair

defense” against defendants who were no longer present.

¶29.   The record backs up his position. Despite their amended complaints, the Elliotts had

consistently represented in both state and federal court that AmeriGas was never the target

of their lawsuit because there was no evidence that propane gas was the culprit.5 The record

shows their representation to the federal judge that they did not intend to target AmeriGas

gained them a remand to circuit court. Cf. id. at 729 (noting the plaintiffs had secured

remand by “successfully, unequivocally, and repeatedly assert[ing] to the federal district

court” that their claims were not based on federal law). And after remand, the Elliotts further

represented to Judge Howorth, during AmeriGas’s first motion for summary judgment, that

the propane gas theory was merely an unsubstantiated defense theory. It was only in defense

of the second motion for summary judgment that the Elliotts changed course and argued they

intended to pursue the theory that propane gas had caused the explosion. But by this point,

Judge Howorth found the Elliotts could not reverse course. See id. at 728.

¶30.   Because we can discern no legal or factual error with his decision, we affirm. But

still, we emphasize that our legal system permits flexibility—even inconsistency—in pursing



       5
        A prime example from the record is the Elliotts’ response to AmeriGas’s first motion
for summary judgment. The Elliotts very clearly explain, while attempting to defend against
summary judgment, that they “have consistently maintained that the explosion was caused
by natural gas” and that evidence propane gas caused the explosion “is completely illogical
and inconsistent with the forensic evidence available to everyone in this case.”

                                              12
a theory of liability or trial strategy. But as Judge Howorth essentially found, there comes

a time when a party reaches a point of no return—when it has so thoroughly and consistently

committed itself to a position that it cannot now turn back. And we cannot say that he was

wrong to hold the Elliotts to the consequences of their cumulative factual assertions and

representations undercutting the propane gas theory and keeping them from changing course.

              B.     Burden of Production

¶31.   Even absent judicial admissions, there is yet another reason that mandates we affirm

on de novo review—the Elliotts have not met their burden of production.

¶32.   While, as the summary-judgment movant, AmeriGas must show no genuine material

fact issues exist, the Elliotts must make a showing too. Because they bear the burden at trial

to prove every essential element of their case, they bear the burden at the summary-judgment

stage to produce evidence establishing each element. See Karpinsky v. Am. Nat’l Ins. Co.,

109 So. 3d 84, 88-89 (Miss. 2013). And by their own admission, they cannot meet this

burden.

¶33.   Specifically, the Elliotts themselves asserted there was no evidence that propane gas

caused the explosion. For negligence claims, “‘[i]t is not enough that negligence of one

person and injury to another coexisted, but the injury must have been caused by the

negligence.’” Herrington v. Leaf River Forest Prods., Inc., 733 So. 2d 774, 779 (Miss.

1999) (quoting Kramer Serv., Inc. v. Wilkins, 184 Miss. 483, 497, 186 So. 625, 627 (1939)).

And for products-liability claims, causation may be proven through circumstantial evidence,

but a plaintiff must still prove proximate cause. See Mine Safety Appliance Co. v. Holmes,



                                             13
171 So. 3d 442, 450-51 (Miss. 2015); Smith v. Union Carbide Corp., 130 So. 3d 66, 70-71

(Miss. 2013).

¶34.   Here, the causation expert witnesses originally designated by the Elliotts “have always

opined that this explosion was caused by natural gas.” And the Elliotts argued the Natural

Gas Defendants’ expert witnesses—cross-designated by them to testify that propane gas was

the cause—were “not qualified to testify” on theories of causation or should testify only on

theories of causation that were “tested by applying accepted methods of testing and

observation, not those based on pure speculation.” In other words, they insisted the cross-

designated experts should testify only about their initial findings and conclusions that natural

gas was the cause. It was for this reason the Elliotts moved to exclude expert-witness

testimony or limit their cross-designated experts to testimony that natural gas—not propane

gas—was the cause.

¶35.   So even absent judicial admissions, without causation evidence, summary judgment

was appropriate. The Elliotts, as “the non-moving party[,] [have] failed to make a showing

sufficient to establish the existence of an element essential to the party’s case, and on which

[they] will bear the burden of proof at trial.” Karpinsky, 109 So. 3d at 89 (citation omitted).

¶36.   This Court “may affirm the lower court’s grant of summary judgment on grounds

other than that which the trial court used.” Kirksey v. Dye, 564 So. 2d 1333, 1336 (Miss.

1990) (citation omitted). While Judge Howorth granted summary judgment specifically

citing judicial admissions—and the awkward posture of naming a defendant only to prevent

an empty chair defense—AmeriGas had also argued the Elliotts lacked causation evidence



                                              14
and had failed to meet their burden of production. After review, we find this is also true.

       II.    Motion for Seventh Amended Complaint

¶37.   The grant of summary judgment is not the only decision the Elliotts challenge. After

this Court in El Paso held summary judgment was appropriate for all the Natural Gas

Defendants, the Elliotts, at a subsequent hearing before the trial judge, verbally moved to

amend their complaint a seventh time. Without ruling on their motion, Judge Howorth

instead granted AmeriGas’s second motion for summary judgment. The Elliotts claim this

failure to rule was reversible error. We disagree.

¶38.    Since AmeriGas was the last remaining defendant, the grant of their motion for

summary judgment contained an implicit denial of all outstanding motions. See Lucas v.

Baptist Mem’l Hosp.-N. Miss, Inc., 997 So. 2d 226, 231 (Miss. Ct. App. 2008); see also

Tollett v. City of Kemah, 285 F.3d 357, 369 n.* (5th Cir. 2002). Decisions to grant or deny

“[m]otions for leave to amend complaint[s] are left to the sound discretion of the trial court.”

Moeller v. Am. Guar. & Liab. Ins. Co., 812 So. 2d 953, 961 (Miss. 2002) (quoting Preferred

Risk Mut. Ins. Co. v. Johnson, 730 So. 2d 574, 579 (Miss. 1998), overruled on other

grounds). Absent an abuse of discretion, this Court will not reverse such a decision. Id.

¶39.   Mississippi Rule of Civil Procedure 15(a) governs motions to amend. We have

liberally construed the language that “leave [to amend] shall be freely given when justice so

requires” to suggest that, unless actual prejudice would result to the opposing party, leave to

amend should be granted. Id. (quoting Estes v. Starnes, 732 So. 2d 251, 252 (Miss. 1999)).

The Elliotts suggest, without a finding from the trial court that AmeriGas would suffer actual



                                              15
prejudice, the judge abused his discretion by implicitly denying their motion to amend.

¶40.   But what the Elliotts are seeking is not an amendment to their complaint. As they

maintain in their appellate brief, the proposed amended complaint “would not have altered

the allegations against AmeriGas whatsoever.” Instead, “it would have merely removed the

alternative theory of causation against the Natural Gas Defendants.” In other words, the

Elliotts are asking the trial court to remove claims that this Court has already ruled fail as a

matter of law. They are not adding anything to their complaint.

¶41.   Beyond that, the Elliotts have amended their complaint six times. Three of those

amendments came after AmeriGas was named to prevent an “empty chair defense.” And this

most recent motion to amend the complaint comes more than three years after the sixth

amended complaint was filed on June 24, 2013.

¶42.   We see no abuse of discretion here. What the Elliotts are asking for is not truly a

motion to amend their complaint—certainly not as contemplated by Rule 15. And, even if

the Elliotts’ motion is treated as their seeking to amend their complaint, they occupy no

different position now than if the motion had been granted. The claims they are seeking to

remove have already been adjudged insufficient as a matter of law.

       III.   Right to a Jury Trial

¶43.   The Elliotts next argue that by dismissing their claims against AmeriGas, Judge

Howorth violated their constitutional right to a jury trial. Both the United States Constitution

and Mississippi Constitution establish the right to trial by jury. U.S. Const. amend. VII;

Miss. Const. art. 3, § 31. But to exercise this right, there must be a factual dispute requiring



                                              16
a jury trial. The law is well-settled on this point. Indeed, the United States Supreme Court

has held that “to preserve the court from frivolous defenses, and to defeat attempts to use

formal pleading as a means to delay the recovery of just demands,” rules for summary

judgment are necessary and do not violate the Seventh Amendment. Fid. & Deposit Co. of

Maryland v. U.S., 187 U.S. 315, 320, 23 S. Ct. 120, 122, 47 L. Ed. 194 (1902); see also

Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 336, 99 S. Ct. 645, 654, 58 L. Ed. 2d 552

(1979) (many procedures developed since 1791 have diminished the civil jury’s historic

domain while also being consistent with the Seventh Amendment).

¶44.   In other words, “[n]o constitutional right to a [jury] trial exists” where a party fails to

show that “some dispute of material fact exists which a trial could resolve.” Oglesby v.

Terminal Transp. Co., Inc., 543 F.2d 1111, 1113 (5th Cir. 1976). This Court similarly

interprets the Mississippi Constitution. The right to a jury trial is not violated when the party

moving for summary judgment is entitled to a judgment by law. Towner v. Moore, 604 So.

2d 1093, 1098 (Miss. 1992).

¶45.   Because the Elliotts lack a triable case, and AmeriGas is entitled to judgment as a

matter of law, the trial judge did not violate the Elliotts’ right to a jury trial by granting

summary judgment.

       IV.    Law of the Case

¶46.   Lastly, the Elliotts suggest the judge ignored the law-of-the-case doctrine. They insist

that because both the state and federal trial courts previously ruled against AmeriGas’s

judicial-admissions arguments, those rulings became the law of the case. This is not so. The



                                               17
law-of-the-case doctrine requires a dispositive, final ruling on a question of law. See

Holland v. Peoples Bank & Trust Co., 3 So. 3d 94, 104 (Miss. 2008). Every case cited by

the Elliotts involved an appeal, a ruling and remand by this Court, and a subsequent appeal

involving the same or similar legal question. See Fortune v. Lee Cty. Bd. of Supervisors,

725 So. 2d 747 (Miss. 1998); Simpson v. State Farm Fire & Cas. Co., 564 So. 2d 1374

(Miss. 1990); and Woolridge v. Woolridge, 856 So. 2d 446 (Miss. Ct. App. 2003). That is

not what happened here. The federal judge ruled on the Elliotts’ motion to remand the case,

addressing only whether the time for removal under United States Code Title 28, Section

1446, had been revived when AmeriGas was added as a defendant. The record contains no

ruling by the federal court on the merits of any judicial admission argument.6 And while the

state circuit judge denied AmeriGas’s first motion for summary judgment, he was at liberty

to revisit and change his ruling. “An order denying summary judgment is neither final nor

binding upon the court or successor courts.” Holland, 3 So. 3d at 104 (quoting Mauck v.

Columbus Hotel Co., 741 So. 2d 259, 268 (Miss. 1999)). And the law-of-the-case doctrine

“has no applicability where the order or judgment is not of a final character.” Id. (citing

Mauck, 741 So. 2d at 268).

¶47.   Because the order denying AmeriGas’s first motion for summary judgment was

neither final nor binding on the trial court, it was well within Judge Howorth’s authority to

       6
         Even if the federal trial court had denied a motion for summary judgment based on
judicial admissions, that decision would not be a final judgment and therefore not subject
to the law-of-the-case doctrine. See Zarnow v. City of Wichita Falls, 614 F.3d 161, 171
(5th Cir. 2010). Cf. Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 744, 96 S. Ct. 1202,
1206-07, 47 L. Ed. 2d 435 (1976) (a summary judgment ruling that leaves issues or claims
unresolved has never been considered a “final judgment” under 28 U.S.C. § 1291).

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revisit the issue and change his ruling. So the law-of-the-case doctrine does not apply.

                                         Conclusion

¶48.   For nearly a decade the Elliotts pursued the Natural Gas Defendants, consistently

undercutting the propane gas theory and related claims. The circuit judge found their

admissions were cumulative, and they were just too far down that road to turn back now.

The Elliotts’ contradictory assertions are not alternative, inconsistent claims protected by

Rule 8(e)(2), and could be deemed judicial admissions or grounds for estoppel. Finding no

error in those rulings, and finding the Elliotts also failed in their burden of production, this

Court affirms summary judgment in AmeriGas’s favor.

¶49.   AFFIRMED.

     WALLER, C.J., KITCHENS, P.J., KING, COLEMAN, BEAM, CHAMBERLIN
AND ISHEE, JJ., CONCUR. RANDOLPH, P.J., NOT PARTICIPATING.




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