Riverboat Corporation of Mississippi v. Davis

341 So.3d 77

RIVERBOAT CORPORATION OF MISSISSIPPI d/b/a Golden Nugget Biloxi Hotel and Casino

v.Tresyla DAVIS

NO. 2020-IA-01244-SCT

Supreme Court of Mississippi.

June 9, 2022

ATTORNEYS FOR APPELLANT: SAMUEL DEUCALION GREGORY, Jackson, ROBERT CHRISTOPHER WHITE

ATTORNEY FOR APPELLEE: CARLOS EUGENE MOORE, Grenada

BEFORE KITCHENS, P.J., COLEMAN AND GRIFFIS, JJ.

KITCHENS, PRESIDING JUSTICE, FOR THE COURT:

¶1. This is a granted interlocutory appeal stemming from the decision by the Circuit Court of the Second Judicial District of Harrison County to grant a Mississippi Rule of Civil Procedure 60(b)(1) motion. Riverboat Corporation of Mississippi (Riverboat) argues that the trial court committed reversible error "by granting [Tresyla Davis's] request to reopen the case, when the two alleged instances of fraud are demonstrably incorrect and the trial court failed to consider all of the elements of fraud necessary to justify the extraordinary relief under Rule 60(b)(1) [.]"

¶2. This Court finds that Davis failed to prove all the necessary elements of fraud by clear and convincing evidence and that the trial court abused its discretion by granting the Rule 60(b)(1) motion. Therefore, we reverse the grant of the Rule 60(b)(1) motion and reinstate the summary judgment previously granted to Riverboat.

FACTS

¶3. On November 27, 2014, Davis and her stepmother visited the Golden Nugget Biloxi Hotel and Casino, which is owned by Riverboat. While at the casino, Davis was playing the slot machines when the chair¹ in which she was sitting fell backward. Davis claimed she suffered physical and emotional injuries as a result of the fall.

¶4. On January 27, 2015, Davis filed a premises liability action against Riverboat in the Circuit Court of the Second Judicial District of Harrison County. During the discovery process, Davis submitted "only two interrogatories, one request for production of documents, and one request for admission." Davis "did not serve any written discovery related to the subject chair."

¶5. On June 21, 2016, Davis deposed Anne Mosher, the designated representative for Riverboat pursuant to Mississippi Rule of Civil Procedure 30(b)(6). Counsel for Davis asked the following:

Q. About the chair, how is the chair–how is it made? Is it–I think it said something about it interlocks with the actual slot machine?

A. It's called a slot chair, yes. It has a lip that hooks underneath the chair. When you sit down in the chair, just in general sitting position, it stays locked.

If you put too much weight or force on the back of the chair, as any chair, it will flip back, you know. It's just not made to be able to sustain that.

....

Q. Let's kind of go back to the chair. Do you know much about the actual model–of the actual model that she was sitting in? You said if you apply too much weight on the back, it will fall backwards. Is there a weight capacity or is there a certain way that it has to sit in order to not fall back? Is there, like, a weight–I don't know if you understand what I'm saying.

A. I'm not a chair expert, but they way the chair is made, it's just a basic bottom and, you know, the back and top. So any chair, even these, if you try to sit on this part or further back on this part, the chair is going to flip backwards. I don't know the model of it or anything, but it's just a basic chair. We've got them all over the casino.

Davis did not ask any more questions regarding the condition or specifications of the chair. Riverboat's counsel then asked Mosher the following regarding the chair:

Q. [W]as the subject chair segregated from the casino floor, removed from the casino floor following this accident?

A. Yes. After the accident, it was preserved in another room.

Q. And have you had an opportunity to inspect the subject chair?

A. Yes.

Q. Following the accident?

A. Yes. It's fine. There's no defects or malfunctions with it.

¶6. On September 29, 2016, Riverboat filed a motion for summary judgment, alleging that there was no genuine issue of material fact because Davis had not shown that the chair was defective. Davis filed a response opposing Riverboat's motion for summary judgment. After a hearing on the motion was held, the trial judge granted Riverboat's motion for summary judgment, determining that Davis "[had] failed to produce ‘sufficient evidence of the essential elements of her claim,’ making summary judgment proper." Additionally, the trial judge said,

although [Davis] contends a dangerous condition existed at the time of her fall–the base of the chair not being under the slot machines–[Davis] has failed to produce evidence that this, in and of itself, is a defective chair design or a dangerous condition. [Davis] has presented no proof that it is necessary for the base of the chair to be under the slot machines to be used safely by guests. In addition, even assuming such is a dangerous condition, [Davis] has produced no evidence as to whom, when or how the base of the chair was removed from under the slot machines, much less that [Riverboat] created this condition, knew of its existence, or that it existed so long that, in the exercise of reasonable case, [Riverboat] should have known of its existence in time to cure it or warn of it. The only evidence offered by [Davis] as to this is an allegation that an unidentified employee made a statement relating to the chair's base following [Davis's] turning the chair over. This is not evidence of a defective design, dangerous condition or who, when or how the base of the chair was removed from under the slot machines. [Davis's] actions could have caused the base of the chair to come out from under the slot machines. [Davis's] contention that the chair fell over because [Riverboat] failed to inspect it is speculative, improperly stacks inference upon inference and is not supported by evidence. [Davis] has presented no proof as to [Riverboat's] inspection schedule.

The order granting Riverboat's motion for summary judgment was filed on April 13, 2017.

¶7. On October 3, 2017, Davis filed a Motion to Reopen Case and Set Aside Summary Judgment Order pursuant to Rule 60(b)(1) of Mississippi Rules of Civil Procedure, arguing that she had "discovered fraudulent behavior/conduct on the part of Defendant [Riverboat], throughout the duration of the previous litigation." Davis "alleged that she learned from public filings in an unrelated lawsuit that the base of another slot machine chair had been altered." In the unrelated lawsuit, Johnston v. Riverboat Corp. of Mississippi ,² the manufacturer of the sled slot chair, one of the defendants in the case, submitted supplemental responses that "stated the slot chair's quick release base [was] intended to be secured in a properly installed bracket while in use by guests." (Emphasis omitted.) Davis claimed that Riverboat had engaged in fraudulent behavior during Mosher's deposition testimony when Mosher testified that the slot chair "had no defects or malfunctions." Also, Davis claimed that, at the hearing on the motion for summary judgment, Riverboat had denied "that any modifications had been made to the sled slot chairs[.]" The next day, Davis amended her motion to reopen the case to assert that, in the Johnston case, "Defendant Riverboat [had been] publicly confronted for making alterations to the slot chairs. Through investigation, [Davis] learned that the slot chairs were not only tampered with but cut down by five inches." To support her motion, Davis attached Riverboat's motion for protective order filed in the Johnston case. In the motion for protective order, "the plaintiff's lawyer in that unrelated lawsuit stated that the base of a different slot chair had been shortened five inches."³

¶8. On February 22, 2018, a hearing was held regarding Davis's motion to reopen the case and to set aside summary judgment. At the hearing, Davis argued that Mosher's Rule 30(b)(6) deposition testimony, which stated that there were no malfunctions or defects of the chair, was fraudulent and misleading because the casino's chairs had been modified. In response, Riverboat argued:

There's another case called Johnson [sic]. That case was filed, I believe, after Davis, but it doesn't matter. The chairs were cut off.

Now, where the rubber hits the road here, in my opinion, is that if the chairs were cut off because they were somehow malfunctioning or deficient is completely in error. It is not true.

....

During the course of the Johnson [sic] case, of course we produced to [Johnston ’s counsel] showing that we had modified the chairs ....

We called the manufacturer–all this is in e-mails. And, of course, [Davis's counsel] is a nice guy, I like him a lot, but he didn't ask for any of this information. He has two discovery productions and two interrogatories. That's it. And both of–the two of those on both sides were about dealing with what our insurance coverage was.

So we–the Gaster company that made these chairs–[Johnston ’s counsel] got all the information from them. And it shows, yes, that we inquired and people don't like these chairs. That's fine. You've got a 30-inch. They can be cut off at 25. They can be cut at 23. We determined to cut them off at 25, according to their own specs, had Dellinger Metal Works do that.

There was nothing–the chairs are designed to go up under the front of the slot machine. The slot box or the base is generic .... There was nothing malfunctioning about the chairs when they were modified.

There's also–nobody lied to anybody about them being modified. That's how [Johnston ’s counsel] found out about it because she filed voluminous discovery, which was not done here. Two questions were asked, two requests for production of documents were asked, on both sides.... Nobody asked for anything about did you modify the chairs, give us your e-mails, have you contacted the manufacturer, all of which was done up front in the–this is just an attempt to revitalize the case.

The trial judge granted Davis's motion to reopen the case and to set aside...