Howard filed a negligence action against Rolin Enterprises LLC and others after a fight outside the Claiborne County Convention Center. Two defendants filed a motion for summary judgment. The Claiborne County Circuit Court granted the motion and the Court of Appeals affirmed.
It is unclear who rented the Convention Center following the Alcorn State football game on September 14, 2013. Howard and friends arrived around 11:30 p.m. Howard and Moseley were assaulted by partygoers while on the dance floor. Security broke up the fight and separated the two groups. Within fifteen minutes, Howard and Moseley decided to leave. Security escorted them outside. Crossing the parking lot, the same group attacked Howard and Moseley again. Allegations included a broken beer bottle and stab wounds. Injuries required being airlifted to the University of Mississippi Medical Center.
An owner or occupier of land in Mississippi can be held liable for a third-party assault under certain circumstances: “the landowner must be shown to have ‘cause to anticipate’ the assault either through ‘(1) actual or constructive knowledge of the assailant’s violent nature, or (2) actual or constructive knowledge that an atmosphere of violence exists.’ Corley v. Evans, 835 So. 2d 30, 38 (¶26) (Miss. 2003).” Further, “[e]vidence of the existence of an atmosphere of violence may include the overall pattern of criminal activity prior to the event in question that occurred in the general vicinity of the defendant’s business premises, as well as the frequency of criminal activity on the premises.” Id. at 38-39 (¶26).
After the motion for summary judgment was granted, and the appeal was dismissed on procedural grounds, Howard filed a Rule 56(f) motion to permit more discovery to defeat summary judgment. Howard issued a subpoena duces tecum to the Claiborne County Sheriff’s Department. In response, defendants filed a motion to stay discovery and a motion for certification of final judgment under Rule 54(b).
Howard argued that call logs should have been considered to show actual and constructive notice of the “atmosphere of violence” at the Convention Center. Howard’s efforts were too little, too late. Those logs had been available before the motion was granted in 2015. Howard had not subpoenaed the records until 2017.
The Court of Appeals “has held that “Rule 56(c) requires that all matters upon which a party or the court may rely must be filed with the clerk and served on the other party prior to the hearing.” Lawrence v. Lawrence, 956 So. 2d 251, 257 (¶15) (Miss. Ct. App. 2006)(emphasis added). “Failure to do so is fatal to the motion.” Id. Howard’s subpoena to the Sheriff’s Office two years after the motion was filed and an order was handed down was too late. Howard would not get a “second bite of the apple.” Summary judgment was affirmed.
Read the full opinion here: John Calvin Howard v. Rolin Enterprises LLC, Mississippi Court of Appeals, No. 2018-CA-00293-COA (May 21, 2019)