Hosey v. Alfonso Realty, Inc., et Al.
| Docket Number: | 2006-CA-00632-COA | |
| Oral Argument: | 06-13-2007 | |
* This video is best viewed in the most current version of Google Chrome, Internet Explorer with Windows Media Player plug-in, or Safari (Mac Users). |
||
| Court of Appeals: |
Opinion Link Opinion Date: 09-04-2007 Opinion Author: MYERS, P.J. Holding: Affirmed |
|
| Additional Case Information: |
Topic: Personal injury - Need for additional time to designate expert - M.R.C.P. 56(f) - Absence of court reporter - M.R.C.P. 78 Judge(s) Concurring: KING, C.J., LEE, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Summary Judgment Nature of the Case: Negligence |
|
| Trial Court: |
Date of Trial Judgment: 03-10-2006 Appealed from: Harrison County Circuit Court Judge: Kosta N. Vlahos Disposition: MOTION FOR SUMMARY JUDGMENT GRANTED Case Number: A-2401-02-772 |
|
| Party Name: | Attorney Name: | |||
| Appellant: | BOBBIE HOSEY, AS MOTHER AND LEGAL GUARDIAN OF DANYEL HOSEY; ESTELLA
PEARSON, INDIVIDUALLY AND AS MOTHER AND
LEGAL GUARDIAN OF ALAJAH PEARSON; AND
DANIEL PARKER, INDIVIDUALLY |
STEPHEN W. MULLINS |
||
| Appellee: | WAYNE MEDIAMOLLE, ALFONSO REALTY, INC. AND COLDWELL BANKER ALFONSO REALTY, INC. | GAIL D. NICHOLSON JEFFREY G. PIERCE CHESTER D. NICHOLSON |
|
|
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
|
| Topic: | Personal injury - Need for additional time to designate expert - M.R.C.P. 56(f) - Absence of court reporter - M.R.C.P. 78 |
| Summary of the Facts: | Bobbie Hosey, Estella Pearson and Daniel Parker filed suit against Wayne Mediamolle, Alfonso Realty, Inc. and Coldwell Banker Alfonso Realty, Inc., alleging that they and their children were exposed to toxic mold and other substances injuring them. Approximately three years and two months later, Hosey’s suit was dismissed by summary judgment after Hosey failed to participate in discovery and designate an expert, though no transcript was made of the hearing. Hosey appeals. |
| Summary of Opinion Analysis: | Hosey argues that pursuant to M.R.C.P. 56(f), more time should have been granted in which to designate an expert witness to defeat a motion for summary judgment. In order for Hosey to prove that Mediamolle and Alfonso Realty were liable in tort for injuries resulting from exposure to toxins, Hosey would have had to come forward with causation evidence. After thirty-eight months following the institution of the claim against Mediamolle and Alfonso Realty, Hosey failed to designate one expert witness to provide this required causation evidence. In the response to the motions for summary judgment, Hosey argued that dismissal was premature because she had not yet had time to designate an expert due to the time delays caused by Hurricane Katrina. Under M.R.C.P. 56(f), a party may defend against summary judgment by presenting affidavits that prove that he cannot for reasons stated present by affidavit facts essential to justify his opposition; the result of such proof is that the trial court should continue the case to allow discovery to develop further. Other than Hosey’s assertions that dismissal was premature because discovery had not been completed, Hosey did not present to the lower court any affidavits or facts tending to justify the failure to designate an expert. Because Hosey made no plausible argument regarding the need for additional time under Rule 56(f) to complete discovery, the dismissal by summary judgment was proper. Hosey also argues that she has a significant disadvantage in this appeal, because a court reporter was not present at the hearing. There is no applicable rule justifying the adoption of such a mandatory transcription rule for dispositive motion hearings. Under M.R.C.P. 78, a court has the discretion to dispense entirely with oral argument on a motion, and can rule based only upon the brief written statements of reasons in support and in opposition to the motion. It would seem to follow that if a hearing is not even necessary to make a decision on a motion for summary judgment, then transcription of that hearing would be inessential, as well. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
