Hendon v. Lang

57 So. 3d 664, 2010 Miss. App. LEXIS 424, 2010 WL 3122810
CourtCourt of Appeals of Mississippi
DecidedAugust 10, 2010
DocketNo. 2008-CA-00997-COA
StatusPublished

This text of 57 So. 3d 664 (Hendon v. Lang) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hendon v. Lang, 57 So. 3d 664, 2010 Miss. App. LEXIS 424, 2010 WL 3122810 (Mich. Ct. App. 2010).

Opinion

GRIFFIS, J.,

for the Court:

¶ 1. Michael T. Hendon, Sherry Hendon, and Charles Hendon brought a claim for breach of contract against Robert C. Lang and Beverly Lang. The contract was a lease agreement with an option to purchase a parcel of commercial property. The jury found that there was no contract between the parties, and a judgment was entered in favor of the Langs. It is from this judgment that the Hendons appeal. The Hendons argue that the circuit court was in error when it denied their motion for a' mistrial, when it set aside a previous order confirming the admission of certain requests for admissions, and when it determined it lacked jurisdiction to award attorney’s fees. We find no error and affirm. [666]*666However, in the interest of justice, we remand this case for the circuit judge to enter an order awarding attorney’s fees.

FACTS

¶ 2. The Hendons entered into a lease agreement with Billy and Glenda Palmer for the lease of a commercial building located at 308 East Railroad Avenue, Crystal Springs, Mississippi. The Hendons claim that the lease agreement also included an option for the Hendons to buy the leased premises. The Hendons alleged that they were later willing to purchase the property, pursuant to the terms of the lease agreement, but the Palmers had already sold the property to the Langs.

¶ 3. The Hendons commenced this lawsuit in the Circuit Court of Copiah County. Their complaint alleged claims for breach of contract and bad faith against both the Palmers and the Langs. The Hendons dismissed the Palmers from the lawsuit.

¶ 4. The Hendons served requests for admissions on the Langs. The Langs answered requests numbered 1-6, but they failed to answer the requests for admission numbered 7-20. The Hendons then filed a “Motion to Confirm Requests for Admissions as Admitted under Rule 36.” The court subsequently issued an “Order to Confirm as Admitted Requests for Admission under Rule 36.” The order declared that requests numbered 7-20 were admitted by the Langs.

¶ 5. The Hendons then filed a motion for a default judgment. The Langs responded by filing a “Motion to Set Aside the Requests for Admissions Admitted ... And to Allow Defendants Additional Time to Respond to Requests for Admissions ... and Response to Motion for Default Judgment.” The circuit court granted the Langs’ motion and set aside the admissions and allowed the Langs to answer the requests for admissions.

¶ 6. The case proceeded to trial. The jury returned a verdict in favor of the Langs. The Hendons appeal the final judgment.

ANALYSIS

1. Was it reversible error for the circuit court to deny the Hendons' motion for a mistrial?

¶ 7. The Hendons argue that the circuit court committed reversible error when it denied the Hendons’ motion for a mistrial. The motion for mistrial was based on a series of questions that were asked, in the presence of the jury, by the Langs’ attorney.

¶ 8. While completing his cross-examination of Sherry Hendon, the Langs’ attorney asked:

Q: And you would agree with me that you have sued — you sued Billy Palmer, and you sued Glenda Palmer in this litigation for about $6 million.
A: Right.
Q: And you would agree with me that you dismissed the Palmers from this lawsuit.
A: Yes, we did.
Q: Okay. And there was no money paid by the Palmers to you.

(Emphasis added).

¶ 9. The Hendons’ attorney made a timely objection on the grounds that the question was an improper “reference to a settlement.” The circuit judge sustained the attorney’s objection. The question was not answered. The Hendons’ attorney informed the court that he would make “another motion” outside the presence of the jury. The Langs’ attorney then proceeded to another subject.

[667]*667¶ 10. Later, outside the presence of the jury, the Hendons’ attorney moved the court for a mistrial. He argued that the Langs’ attorney’s reference of the settlement with the Palmers, as former co-defendants, was in violation of Rule 408 of the Mississippi Rules of Evidence. In response, the Langs’ attorney argued that the question was proper and was not a violation of Rule 408. The circuit judge denied the motion for a mistrial. No limiting instruction was requested of or given by the circuit court.

¶ 11. The Hendons do not challenge the circuit court’s evidentiary ruling. Indeed, the Hendons got the ruling they asked for, and the circuit court did not allow evidence of the amount paid by the Palmers, if any. We note, however, that the “[ajdmission or exclusion of evidence is within the discretion of the trial judge and will not be reversed absent an abuse of that discretion.” Miss. Dep’t of Trcmsp. v. Cargile, 847 So.2d 258, 263 (¶ 16) (Miss.2003). The circuit court’s evidentiary ruling is not contested in this appeal. Thus, we must consider the circuit court’s ruling to be correct.

¶ 12. The issue to be decided here is whether it was reversible error for the circuit court to deny the motion for a mistrial. In Coho Resources, Inc. v. McCarthy, 829 So.2d 1, 18 (¶ 50) (Miss.2002), the supreme court considered whether prejudicial statements, rather than questions by the plaintiffs’ attorney, required a mistrial. The court held:

Our standard of review of the trial court’s decision whether to grant a mistrial is abuse of discretion:
Case law unequivocally holds that the trial judge is in the best position for determining the prejudicial effect of an objectionable remark. The judge is provided considerable discretion to determine whether the remark is so prejudicial that a mistrial should be declared. Where serious and irreparable damage has not resulted, the judge should admonish the jury then and there to disregard the impropriety.
Roundtree v. State, 568 So.2d 1173, 1177-78 (Miss.1990) (internal citations omitted).

Coho Resources, Inc., 829 So.2d at 18 (¶ 50).

¶ 13. The Palmers were an integral part of the Hendons’ claim. There was no objection when the Langs’ attorney inquired about the fact that the Hendons had sued the Palmers. Likewise, there was no objection to the question that the Hendons had dismissed the Palmers from the lawsuit. The motion for mistrial was based on the Hendons’ argument that the Langs’ attorney improperly sought to bring before the jury the fact that the Palmers were dismissed from the lawsuit, and they had paid nothing to the Hendons for the dismissal.

¶ 14. It is important to our analysis that the Hendons’ attorney promptly objected to the question, as required by Rule 103(a)(1) of the Mississippi Rules of Evidence. The court then sustained the objection. For evidentiary purposes, the question was never answered. Later, when the Hendons’ attorney moved for a mistrial, the circuit court reviewed the motion for a mistrial under the standard set forth in Rule 3.12 of the Uniform Rules of Circuit and County Court, which provides:

Upon motion of any party, the court may declare a mistrial if there occurs during the trial, either inside or outside the courtroom, misconduct by the party, the party’s attorney, or someone acting at the behest of the party or the party’s attorney, resulting in substantial and

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Related

Illinois Cent. R. Co. v. Hawkins
830 So. 2d 1162 (Mississippi Supreme Court, 2002)
Roundtree v. State
568 So. 2d 1173 (Mississippi Supreme Court, 1990)
Corporate Management, Inc. v. Greene County
23 So. 3d 454 (Mississippi Supreme Court, 2009)
Mississippi Dept. of Transp. v. Cargile
847 So. 2d 258 (Mississippi Supreme Court, 2003)
DeBlanc v. Stancil
814 So. 2d 796 (Mississippi Supreme Court, 2002)
Coho Resources, Inc. v. McCarthy
829 So. 2d 1 (Mississippi Supreme Court, 2002)

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Bluebook (online)
57 So. 3d 664, 2010 Miss. App. LEXIS 424, 2010 WL 3122810, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hendon-v-lang-missctapp-2010.