Payne v. Whitten


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Docket Number: 2004-CT-01905-SCT
Linked Case(s): 2004-CA-01905-COA ; 2004-CT-01905-SCT ; 2004-CT-01905-SCT ; 2004-CA-01905-COA

Supreme Court: Opinion Link
Opinion Date: 10-26-2006
Opinion Author: SMITH, C.J.
Holding: Motion for rehearing is denied. The original opinion is withdrawn and this opinion substituted therefor. The Judgment of the Court of Appeals is Reversed, and the Judgment of the Circuit Court is Reinstated and Affirmed.

Additional Case Information: Topic: Personal injury - Discovery violation - M.R.C.P. 37 - M.R.C.P. 33(a)
Judge(s) Concurring: WALLER, P.J., DIAZ, EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ.
Non Participating Judge(s): COBB, P.J., AND GRAVES, J.
Procedural History: Jury Trial
Nature of the Case: CIVIL - PERSONAL INJURY
Writ of Certiorari: Granted
Appealed from Court of Appeals

Trial Court: Date of Trial Judgment: 06-14-2004
Appealed from: TATE COUNTY CIRCUIT COURT
Judge: Andrew C. Baker
Disposition: Jury returned verdict in favor of Payne but found her guilty of contributory negligence & assigned her 30% fault
Case Number: CV2002-327-B/T

Note: ON MOTION FOR REHEARING - ORIGINAL OPINION IS WITHDRAWN & THIS OPINION IS SUBSTITUTED THEREFOR

  Party Name: Attorney Name:  
Appellant: PENELOPE ANN PAYNE




GERALD W. CHATHAM, SR.



 

Appellee: MAX D. WHITTEN FRANCES R. SHIELDS AMANDA B. QUAVE WILLIAM C. GRIFFIN  

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Topic: Personal injury - Discovery violation - M.R.C.P. 37 - M.R.C.P. 33(a)

Summary of the Facts: Penelope Payne sued Max Whitten for injuries she received in a one-car accident in Tate County. In his answer, Whitten raised as an affirmative defense Payne’s contributory negligence. During the trial, Whitten for the first time, provided testimony to support this defense. The following day Payne’s attorney requested a mistrial or other sanction, arguing Whitten’s testimony violated the rules of discovery. The circuit judge denied relief. The jury returned a verdict in favor of Payne, but found her guilty of contributory negligence and assigned her thirty percent of fault. Judgment was entered for Payne for $20,000. On appeal, the Court of Appeals reversed the judgment of the trial court and remanded the case for a new trial. The Supreme Court granted certiorari.

Summary of Opinion Analysis: Payne argued that Whitten’s trial testimony caused total and complete prejudice due to his surprise revelation of a cause of the accident in light of his evasive or incomplete answers to interrogatory and deposition questions. Whitten argued that despite his notifying opposing counsel in his complaint of a contributory negligence defense, trial was the first time he was asked about Payne’s actions leading up to the accident. M.R.C.P. 37(e) allows sanctions for discovery violations as may be just in response to abuses in seeking, making or resisting discovery. When a party is aware of an incomplete or evasive discovery response, that party should take affirmative action by seeking an order compelling discovery pursuant to M.R.C.P. 37 (a)(2). Whitten notified Payne of a contributory negligence defense in his Answer to the Complaint by way of two separate affirmative defenses. Whitten clearly identified Payne as a contributing cause of the accident. Payne did question Whitten about contributory negligence defense by way of an interrogatory which asked first, how the accident occurred and second, the basis of any claim of a contributing cause, clearly violating M.R.C.P. 33(a), which restricts interrogatories to a single question. Whitten’s response to the interrogatory addressed the first question “how the accident occurred” but failed to address any basis for his contributory negligence defense. Because Payne had notice of Whitten’s contributory negligence defense, upon review of the answer to the interrogatory, Payne should have moved the circuit court to compel Whitten to provide a more complete answer. There is no evidence that Whitten’s interrogatory response was intended to mislead opposing counsel, and Whitten clearly did not exhibit a pattern of such. Further there is no indication that Payne was prejudiced by Whitten’s incomplete answer. Whitten’s testimony about Payne’s romantic overtures occurred during cross-examination by Payne’s attorney. The general rule is that if you ask the question, you have to be prepared for the answer. Payne was clearly notified of Whitten’s contributory negligence defense, and it appears that Payne knew of the kissing incident.


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