                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2015-CT-00256-SCT

CYNTHIA KULJIS

v.

WINN-DIXIE MONTGOMERY, LLC

                              ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                          02/06/2015
TRIAL JUDGE:                               HON. CARTER O. BISE
TRIAL COURT ATTORNEYS:                     DAVID W. STEWART
                                           JAMES K. WETZEL
                                           GARNER J. WETZEL
COURT FROM WHICH APPEALED:                 HARRISON COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT:                   GARNER J. WETZEL
                                           JAMES K. WETZEL
ATTORNEYS FOR APPELLEE:                    DAVID W. STEWART
                                           BRIAN C. WHITMAN
NATURE OF THE CASE:                        CIVIL - PERSONAL INJURY
DISPOSITION:                               AFFIRMED - 03/30/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       WALLER, CHIEF JUSTICE, FOR THE COURT:

¶1.    Cynthia Kuljis appeals the chancery court’s dismissal of her Bill of Discovery for lack

of subject-matter jurisdiction. The Bill sought discovery related to a prospective premises-

liability and personal-injury claim. Finding the actions of the chancery court were correct as

a matter of law, we affirm the Court of Appeals’ judgment and the chancery court’s dismissal

of this case.

                       FACTS AND PROCEDURAL HISTORY
¶2.    Cynthia Kuljis alleges she suffered injuries when she tripped on a piece of rubber

holding down a carpet in the Winn-Dixie grocery store in D’Iberville, Mississippi. As a

result, she filed a Complaint for Discovery in the Harrison County Chancery Court,

requesting that the chancellor order Winn-Dixie to “produce incident reports, photographs,

video surveillance, investigation reports, work orders, witness statements of the incident in

question and all other information that may be in their possession.” Winn-Dixie moved to

dismiss, arguing Kuljis must first file a complaint for negligence in the circuit court and

obtain discovery through the Mississippi Rules of Civil Procedure.

¶3.    The chancellor dismissed Kuljis’s complaint, finding she could not pursue a complaint

for discovery in chancery court when the Mississippi Rules of Civil Procedure provided her

an adequate opportunity for discovery in circuit court. Kuljis appealed, and the Mississippi

Court of Appeals affirmed. Kuljis v. Winn-Dixie Montgomery, LLC, 2016 WL 1203823,

*1 (Miss. Ct. App. Mar. 29, 2016). We granted certiorari.

                                       DISCUSSION

¶4.    The bill of discovery is a viable equitable action and remedy in chancery court, but

not under the facts of this case. Kuljis seeks discovery in chancery court for a trip and fall

at a Winn-Dixie grocery store. Yet the chancery court lacks jurisdiction over personal-injury

actions. See Miss. Const. art. 6, § 159 (1890). To distinguish between the chancery court’s

and circuit court’s subject-matter jurisdiction, “the substance of the action . . . should be

controlling on the issue, not its form or label.” Briggs & Stratton Corp. v. Smith, 854 So. 2d

1045, 1049 (Miss. 2003) (quoting Tillotson v. Anders, 551 So. 2d 212, 214 (Miss. 1989)).

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In addition, where doubts exist regarding the legal or equitable nature of a case, the case

should be tried in the circuit court. Southern Leisure Homes, Inc. v. Hardin, 742 So. 2d

1088, 1090 (Miss. 1999).

¶5.    The bill of discovery is an original action that may be pursued when there is no other

remedy, as set out in State Oil & Gas Board v. McGowan and Moore v. Bell Chevrolet-

Pontiac-Buick-GMC, LLC. McGowan involved an administrative proceeding before the

Mississippi Oil and Gas Board where McGowan sought additional discovery to prepare for

a hearing. State Oil & Gas Bd. v. McGowan, 542 So. 2d 244, 245 (Miss. 1989). After the

Board denied his request, he filed a Bill of Discovery in chancery court. Id. The McGowan

Court found that the Bill of Discovery was a viable action, as administrative proceedings

specifically are excluded from the Mississippi Rules of Civil Procedure and no discovery

mechanism exists under the Administrative Procedures Act. Id. at 247. Despite finding that

the Bill of Discovery was an appropriate procedural device, the Court found that, because

discovery was not permitted under the Oil and Gas Board’s rules, it could not be sought by

McGowan through a bill of discovery. Id. at 248.

¶6.    In Moore, this Court found that a bill of discovery was a viable means to obtain

discovery in conjunction with administrative proceedings. Moore v. Bell Chevrolet-Pontiac-

Buick-GMC, LLC, 864 So. 2d 939, 947 (Miss. 2004). However, the Court found that it was

not permitted there because the parties seeking it had not “demonstrate[d] that they were

diligent or [had] made reasonable efforts to exhaust other avenues of obtaining the

information without proceeding in [the] trial court on a complaint for discovery.” Id.



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¶7.    Filed by way of Citation to Supplemental Authorities pursuant to Mississippi Rule of

Appellate Procedure 28(k), Kuljis cites the recent decision of Elizabeth Graham and

Matthew Graham v. James “Jaime” R. Franks, Jr. And Wheeler and Franks Law Firm,

P.C. in support of her Bill of Discovery. Graham v. Franks, No. 2015-CA-01428-COA,

2017 WL 194268 (Miss. Ct. App. Jan. 10, 2017).1 The Grahams retained Franks for

representation in a criminal matter for a fixed fee. The Grahams alleged that, notwithstanding

the fixed-fee contract, Franks demanded, and they paid, additional money and gave what is

described as valuable property in excess of the fixed fee. Id. Becoming disenchanted with

the representation, the Grahams hired different counsel and sought documentation and

explanation for the fees Franks had charged. Id. When rebuffed, the Grahams filed their

“[c]omplaint for [d]iscovery, [a]ccounting, and [r]eturn of [p]roperty” in chancery court. Id.

The trial court dismissed the complaint for failure to plead the specific causes of action. Id.

¶8.    The Court of Appeals reversed, holding that a complaint for discovery and accounting

is a viable, standalone, cause of action, properly subject to equitable jurisdiction in chancery

court. That court found that “[i]t is beyond dispute that a complaint for an accounting is a

valid cause of action under Mississippi law . . . [and] ‘[a] Mississippi chancery court holds

the authority to hear a case for an accounting.’” Graham v. Franks, 2017 WL 194268, at *2

(quoting Univ. Nursing Assocs. PLLC v. Phillips, 842 So. 2d 1270, 1275 (Miss. 2003)). The

court also stated that “[t]he Supreme Court of Mississippi has recognized . . . that a complaint

for discovery has discovery itself as the substantive relief sought—‘the sole object and end



       1
        This case is subject to rehearing.

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of the bill, no relief other than the discovery being prayed.’” Id. (quoting McGowan, 542 So.

2d at 248.) The Court of Appeals also addressed the issue of the return of property, stating

“[t]he remedy sought by an accounting is the accounting itself ‘and a judgment for the

amount found due upon the accounting.’” Id. (citing 1A C.J.S. Accounting § 54 (2005)).

¶9.    Graham v. Franks provides Kuljis no support. The discovery she desires is not itself

the relief she seeks. It is only incidental to an action at law for which a justiciable claim

already has been articulated in her complaint, and for which there is no jurisdiction in

chancery court.

¶10.   Kuljis also contends that a bill of discovery would prevent her from filing a frivolous

lawsuit. However, avoidance of Rule 11(b) sanctions does not provide support for Kuljis’s

Bill of Discovery. Winn-Dixie’s stated failure to respond to a letter seeking this information

provides a sound and reasoned basis for maintaining a civil action and attendant discovery

for Kuljis’s claim. This Court has reversed the use of Rule 11 sanctions where a plaintiff

made an arguable claim and filed a pleading in good faith. Milliken & Michaels, Inc. v. Fred

Netterville Lumber Co., 676 So. 2d 266, 270 (Miss. 1996); McDonald’s Corp. v. Robinson

Indust., Inc., 592 So. 2d 927, 935 (Miss. 1991). Further, the comment to Mississippi Rule

of Professional Conduct 3.1 states that “[t]he filing of an action or defense or similar action

taken for a client is not frivolous merely because the facts have not first been fully

substantiated or because the lawyer expects to develop vital evidence only by discovery.”

(Emphasis added.) Kuljis already provides a “short and plain statement of the claim showing




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. . . the relief to which [she] deems [herself] entitled.” Miss. R. Civ. P. 8. Kuljis’s complaint

states:

          Plaintiff would show that on July 27, 2013, Plaintiff, Cynthia Kuljis, was a
          guest patron at the Defendant’s place of business in D’Iberville, Mississippi.
          Plaintiff, Cynthia Kuljis, was walking into the store of the Defendant’s place
          of business when suddenly and without warning, Plaintiff tripped over a piece
          of rubber sticking up, which was suppose to hold down the carpet, falling face
          first onto the floor. Plaintiff would show that she has sustained serious and
          permanent medical injuries.

¶11.      The authoritative work on chancery court practice written long before the adoption

of the Mississippi Rules of Civil Procedure references a need to exhaust other available

means for obtaining the information prior to filing a bill of discovery. As stated in

Mississippi Chancery Practice, the relief is available when “it is not within the reasonable

reach of the complainant to obtain [the information] without the aid of the discovery prayed.”

V.A. Griffith, Mississippi Chancery Practice § 429, 424 (1950). The chancellor succinctly

set out in his order that, “in order for the [c]ourt to assume jurisdiction, Plaintiff must make

a showing that the information sought cannot be obtained by other methods.” See also Moore

v. Bell Chevrolet-Pontiac-Buick-GMC, LLC, 864 So. 2d 939, 947 (Miss. 2004).

                                        CONCLUSION

¶12.      Because the chancery court did not abuse its discretion in determining that it lacked

jurisdiction over this matter, we affirm the judgments of the Court of Appeals and the

Harrison County Chancery Court.

¶13.      AFFIRMED.




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     RANDOLPH, P.J., MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR.
DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
KITCHENS, KING AND COLEMAN, JJ.

       DICKINSON, PRESIDING JUSTICE, DISSENTING:

¶14.   Mississippi Rule of Civil Procedure 82(a) states “[t]hese rules shall not be construed

to extend or limit the jurisdiction of the courts of Mississippi.”2 The majority ignores this

rule by holding that somehow the enactment of the Rules of Civil Procedure did in fact “limit

the jurisdiction” of the chancery court. Our chancery courts’ equitable jurisdiction has

included subject-matter jurisdiction over bills of discovery—even when the discovery related

to a matter that ultimately would be litigated in circuit court—since before any justice in the

majority was born.3

¶15.   It is no answer to say that “the chancery court lacks jurisdiction over personal-injury

actions.”4 No one has attempted to file a personal-injury action in chancery court. The

chancery court has always had jurisdiction over bills of discovery, regardless of where the

discovery might suggest a suit is warranted.

¶16.   To sum it up, the majority holds that because we adopted the Rules, the chancery

courts now lack jurisdiction over bills of discovery. In other words, by claiming the Rules

do exactly what Rule 82(a) says they do not do, this Court refuses to follow its own rules.




       2
           Miss. R. Civ. P. 82(a).
       3
           See Buckner v. Ferguson, 44 Miss. 677, 681–82 (1870).
       4
           Maj. Op. at ¶ 4.

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This is the same Court that sanctions lawyers and judges for failing to follow the rules, so

one wonders how today’s decision contributes to confidence in the judiciary.

¶17.   Because I believe we should follow the rules we adopt—just as we expect everyone

else to do—I dissent. Rule 82(a), if followed, ensures that the complaint of discovery

remains a viable action in chancery court even when the discovery relates to a matter which

will be litigated in circuit court.

¶18.   One thing more needs to be said. Complaints of discovery serve a valuable purpose.

Given attorneys’ ethical and legal obligation to avoid frivolous filings,5 prefiling discovery

empowers attorneys to make more informed decisions as to whether meritorious claim exist

and better equips attorneys to fulfill their ethical obligations. Moreover, any concern that this

practice will be abused is mitigated by the chancellor’s discretion to deny unreasonable

requests.

       KITCHENS, KING AND COLEMAN, JJ., JOIN THIS OPINION.




       5
           See Miss. R. Civ. P. 11; Miss. Code Ann. § 11-55-5 (Rev. 2012).

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