Riverbend Utilities, Inc. v. Brennan, et al.
| Docket Number: | 2010-IA-00131-SCT Linked Case(s): 2010-M-00131-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 08-25-2011 Opinion Author: Randolph, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Negligence - Real party in interest - M.R.C.P. 17 - Discovery order - M.R.C.P. 28(a) Judge(s) Concurring: Waller, C.J., Carlson, P.J., Lamar, Kitchens, Chandler, Pierce and King, JJ. Non Participating Judge(s): Dickinson, P.J. Procedural History: Interlocutory Appeal Nature of the Case: CIVIL - OTHER |
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| Trial Court: |
Date of Trial Judgment: 01-05-2010 Appealed from: Harrison County Circuit Court Judge: Lawrence P. Bourgeois, Jr. Disposition: Added Arch Insurance Company as an involuntary counterplaintiff, and ordered Riverbend to make four individuals available for deposition. Case Number: A2401-07-294 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Riverbend Utilities, Inc. |
BRENDA G. LONG
MICHAEL BRYAN DICKINSON |
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| Appellee: | Hugh Edward Brennan and Shanda Melissa Brennan, Meranda Ivy Brennan, and Sarah Elizabeth Marut | HARRY VINCENT SATTERWHITE BRIAN THOMAS PUGH |
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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. |
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| Topic: | Negligence - Real party in interest - M.R.C.P. 17 - Discovery order - M.R.C.P. 28(a) |
| Summary of the Facts: | In August 2006, sewage backed up into a home occupied by Hugh Brennan, Shanda Brennan, Meranda Brennan, Diana Marut, and Sarah Marut. The parties reported the problem to Riverbend Utilities, which provided their water and sewer services. Riverbend and its insurance carrier, Arch Insurance Company, paid approximately $40,000 for cleanup, repair, storage, and claims for damages. Riverbend paid approximately $2,000 and Arch paid approximately $10,000 directly to vendors, with the remaining $28,000 paid directly to the Brennans by Arch. In March 2008, the Brennans sued Riverbend, alleging negligence. During discovery, Riverbend learned that the Brennans’ home had suffered damage from Hurricane Katrina in August 2005. In August 2009, with leave of the trial court, Riverbend counterclaimed, alleging that the Brennans had submitted the same invoices to Riverbend that they previously had submitted to their homeowner’s insurance provider, and that they had been paid by that insurer. In October 2009, the Brennans filed a “Motion to Add [Arch] as a Real Party in Interest,” requesting that the trial court order Arch to “be made a party Counterplaintiff in this action, or in the alternative, if [Arch] refuses to join as Counterplaintiff, it be added as a Defendant as provided by Rule 19(a) Miss.R.Civ.P.” As a part of its response to the Brennans’ motion, Riverbend attached Arch’s “Rule 17 Certificate of Ratification” which provided that “[Arch], pursuant to Rule 17(a) . . . , hereby ratifies [Riverbend]’s commencement of Counter-Claim against [the Brennans] and assigns its subrogation claims to Riverbend and agrees that Riverbend continue to prosecute the Counter-Claim on ARCH’s behalf for its benefit and further agrees to be bound by the final determination in this case.” In December 2009, the trial court heard argument on the motion to add Arch, as well as a motion to compel Riverbend to answer interrogatories. The trial court granted the motion to compel Riverbend to answer the interrogatories. Riverbend acknowleged that Riverbend and Arch had reached an agreement on how to divide the judgment if Riverbend were to prevail. Based on this statement, the trial court found that Arch had a pecuniary interest in the case. The Supreme Court granted an interlocutory appeal. |
| Summary of Opinion Analysis: | Issue 1: Real party in interest The trial court found that Arch would benefit if Riverbend prevailed on its counterclaim. Thus, it ordered that Arch should be joined as an involuntary counterplaintiff based on the Brennans’ motion to add Arch as a real party in interest. Riverbend argues that the trial court erred by not giving effect to Arch’s ratification. The function of M.R.C.P. 17 is to protect litigants from harassment and multiple suits by persons who would not be bound by the principles of res judicata and to enable the defendant to present his defenses against the proper persons and to proceed to finality of judgment. The rule’s language that ratification has the same effect as if the suit had been brought originally by the real party in interest. Arch ratified the actions of Riverbend, waived the right to participate, assigned any claim it might have to Riverbend, and agreed to be bound by the result. Arch looks to Riverbend via a contractual right for recovery. Thus, Arch is not a real party in interest in the counterclaim against the Brennans. The purpose of Rule 17 is met. The trial court erred n ordering that Arch be made a party to the counterclaim. Issue 2: Discovery order The trial court ordered Riverbend’s attorney to “[g]ive [the Brennans] all the names of anybody who knows anything about this counterclaim. [Their attorney will] take depositions of them.” Later, the trial court told the Brennans’ attorney to “[t]ake their depositions if you want.” Riverbend argues that the order creates an “undue burden of being required to produce individuals who are not employed with Riverbend, and whom Riverbend has no control over.” Riverbend argues that, as a good-faith effort to comply with the order, it had forwarded the notices, and that it had asked the individuals voluntarily to submit to a deposition, but all four declined. Riverbend argues that it has no ability to require them appear for deposition, as the four are not parties to the suit, not Riverbend employees, and not Mississippi residents. As the individuals noticed are not parties, Mississippi residents, or Riverbend employees, the trial court abused its discretion in ordering Riverbend to make them available for deposition. As the trial court stated, the Brennans may take the deposition of these individuals, utilizing the procedure found in M.R.C.P. 28(a). |
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