IN THE SUPREME COURT OF MISSISSIPPI
NO. 2017-IA-01554-SCT
SAFECO INSURANCE COMPANY OF AMERICA

v. STATE OF MISSISSIPPI EX REL. JIM HOOD

DATE OF JUDGMENT: 10/25/2017 TRIAL JUDGE: HON. TOMIE T. GREEN COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: GREGG A. CARAW AY CLIFFORD K. (FORD) BAILEY, III JUDY Y. BARRASSO STEPHEN L. MILES CHLOÉ M. CHETTA STEPHEN R. KLAFFKY ATTORNEYS FOR APPELLEE: GEORGE W . NEVILLE DONALD L. KILGORE JACQUELINE H. RAY W I LLIAM L. SMITH LUCIEN SMITH BENJAMIN BRYANT CRYMES G. PITTMAN W I LLIAM E. COPLEY MAISON HEIDELBERG NATURE OF THE CASE: CIVIL - INSURANCE DISPOSITION: VACATED AND REMANDED - 08/22/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. GRIFFIS, JUSTICE, FOR THE COURT: ¶1. This case is bef

o r e t h e C o u r t on interlocutory appeal. Saf e c o Insurance Com

pany (Saf eco) challenges the circuit c ourt’s r e a s s i g n me n t of this case a nd the appointm ent of aspecial m aster. W e f ind an abuse of discretion a nd vacat e t h e r e a s s i gnm ent order and the special-m aster order. The c ase is rem a nded f or f urther proceed i n g s consistent with this opinion.
FACTS AND PROCEDURAL HISTORY ¶2. This case arises f

rom Hurricane Katrina insurance litigation. Af ter the hurricane had destroy ed m any hom e s, policy holders and insurance com p anies began litigating whether the
hurricane losses were caused by f lood dam age or wind dam a ge. T he distinction determ ined
whether the insurance c om panies would p ay c l aim s on those polices that did not cover f lood
dam age. ¶3. For Mississippi residents who could no t r e c o v e r u nder a n insurance policy at that tim e , Mississippi enacted the Hom eowner Assistance Program (HAP), a f e d erally f u nded program intended t o a ssist uninsured o r underinsured hom eowners. According t o the State, a portion
of the HAP assistance w o u ld not have been paid b y the State if insurers had not wrongly
characterized f

l ood-dam a ge claim s as wind-dam a ge claim s. ¶4. Since 2 015, the State h as initiated at least tw e l v e H A P l a w s u i t s against insurers, asserting dif

f erent theories of liability related to HAP. Som e of the c ases have been settled,
while others are pending in b oth s tate and f ederal c ourts. 1 F o u r o f s u c h cases are relevant

1 See, e.g. , M

ississippi ex rel. Hood v. MeritPlan Ins. C o. , No. 1:15-cv-00614 (Hinds Cty

. Circuit Court, 1st J ud. Dist., f iled Nov. 20, 2015) (initially assigned to and now pending bef ore Judge G reen; s ettled a nd d ism issed); Mississippi ex rel. Hood v. Balboa Ins. Co. , No. 1:17-cv-00146 (Hinds Cty

. Circuit Court, 1st Jud. Dist., f i l ed Mar. 10, 2017) (initially assigned to Judge G reen; settled and dism issed); Mississippi ex rel. H ood v. USAA Cas. Ins. 2here.

¶5. On April 21, 2015, the State f iled the f i rst HAP com

plaint against State Farm Fire & Casualty C om

pany (State Farm ). 2 The S tate alleged t h a t S tate Farm m isadjusted 8,238
unidentif ied Katrina-related insurance claim s
. This case w as initially random ly a s signed to Senior Circuit Judge Tom ie Green. ¶6. On Novem

ber 20, 2015, the State f i l e d a n o t h e r H A P c a s e a g a inst Metropolitan Property and Casualty Insurance Com pany ( Metropolitan). 3 The State alleged that Metropolitan m i sadjusted 429 unidentif ied Katrina-related insurance claim s. This case was initially random ly

assigned to Circuit Judge W illiam Gowan, who retired in March 2018. ¶7. W i t

h i n s e v e ral m onths of f

iling, Judge Gowan considered and ruled on two dispos i t i v e

Co. et al. , No. 1:18-cv-00210 (Hinds Cty

. Circuit Court, 1st Jud. Dist., f i led A pr. 16, 2018) (initially a ssigned to Judge Gowan’s successor; now pending bef ore Judge Fay e Peterson); M i s s i s s i ppi ex rel. H

ood v . Prim e Ins. Co. , No. 1:18-cv-00211 (Hinds Cty

. Circuit Court , 1st Jud. Dist., f

iled A pr. 16, 2018) (i n i t ially assigned to Judge Gowan’s successor; now pending bef

ore Judge Peterson); Mississippi ex rel. H o od v. Allstate I

n s . C o . , e t al. , No. 1:18-cv-00212 (Hinds Cty

. Circu i t Court, 1 st Jud. Dist., f iled Apr. 16, 2018) (initially assigned to and now pending bef ore Judge Green); Mississippi ex rel. Hood v . Am
. Sec. Ins. Co. , N o. 1:18-cv-00213 (Hinds Cty

. Circuit Cour t, 1st Jud. Dist., f iled Apr. 16, 2018) (initially a s s i g n e d to Judge Gowan’s successor; now pending bef ore Judge Peterson); Mississippi ex rel. H

ood v. Nat’l Fire and Cas. Co. , No. 1:18-cv-00214 (Hinds Cty

. Circuit Court, 1st Jud. Dist., f

iled Apr. 16, 2018) (initially assig n e d t o Judge Gowan’s s uccessor; now pending bef

ore Judge Peterson); M

ississippi e

x r e l. H ood v. Nationwide Mut. Ins. Co., et a l. , No. 1:18-cv-00215 (Hinds Cty

. Circuit Court, 1st Jud. Dist., f iled Nov. 20, 2015) (initially assigned to Judge Green; interlocutory appeal pending 2019-M-01017-SCT).

2 M ississip p i ex rel. H

o o d v. S ta te F a r m F ire & C a s. C o . , N o
. 1 :1 5 -cv -0 0 2 2 1 -T T G (H in d s C ty . C ircu it C o u r

t, 1 st Ju d . D ist., f

iled A p r. 2 1 , 2 0 1 5 ) ( S

t a t e F a rm ).

3 M ississip p i ex rel. H

o o d v. M etro . L ife In s. C

o . , N o
. 1 :1 5 -cv -0 0 6 1 5 -WA G (H in d s C t y
. C ircu it C o u rt, 1 st Ju d . D ist., f iled N o v . 2 0 , 2 0 1 5 ) (

M etro p o lita n ). 3m otions. Judge Gowan ruled a g a i n s t the State a n d held: f irst, that the S tate’s subrogation
claim s were untim ely ; s econd, that the State violated Mississippi’s pleading requirem ents by

not appending each policy holder’s subrogation agreem ent to the com plaint; and t hird, that
the State was to disclose these agreem ents, “rather than m aking the Def endant go on a f

ishing expedition.” The case was settled f ollowing this ruling. ¶8. Shortly thereaf

ter, o n March 29, 2 017, the State f iled two m o re HAP cases. The f irst

case w as f

iled against Saf

eco. 4 The com

p laint alleged that Saf

eco m isadjusted 232
unidentif ied Katrina-related insurance claim s. T his case was initially r andom ly assigned to Judge Gowan. ¶9. The sec o n d c a s e w a s f i l e d a g a i n s t Liberty Mutual I nsurance Com pany (Liberty Mutual). 5 The com

plaint a l l e g e d that Liberty Mutual m isadjusted 180 u nidentif ied
Katrina-related insurance claim s. This case was initially random ly assigned to Judge Green. ¶10. O n M ay 9 , 2 0 1 7 , in S ta te F a rm , af ter th e S t ate f

iled a m o tio n f

o r en try o f a p ro p o sed
sch ed u l i n g o rd er an d S tate F arm f iled a m o tio n to d ism iss th at w as sim ilar to th at m o tio n
g ran ted b y Ju d g e G o w an in Metropolitan , Judg e Green e n tered the f ollowing text order, without conducting a hearing:
ORDER OF NOTICE O F INTENT TO APPOINT SPECIAL MASTER. Please take notice OF THE COURT’S I N T E N T to appoint a SPECIAL

4 M ississip p i ex rel. H

o o d v. S a feco In s. C

o . , N o
. 1 :1 7 -cv -0 0 1 9 7 -WA G (H in d s C ty

. C i rcu it C o u rt, 1 st Ju d . D ist., f iled M ar. 2 9 , 2 0 0 7 ) ( S a

feco ).

5 M ississip p i ex rel. H

o o d v. L ib erty M

u t. In s. C o . , N o
. 1 :1 7 -cv -0 0 1 9 8 -T T G (H in d s C t y
. C ircu it C o u rt, 1 st Ju d . D ist., f iled M ar. 2 9 , 2 0 0 7 ) (

L ib erty M

u tu a l ). 4MASTER on the grounds of its overcrowded civil and crim inal dockets, and other adm inistrative d

uties, in addition to the parties num erous f ilings and the com plexity o f case and t he need f or t im ely resolution of pretrial m atters. The Special Master’s f

e e and expenses will be b o r n e b y t h e p arties, in equal proportion. Any p arty with a reasonabl e o b j e ction f or cause to said appointm ent s hall f

i le said obje c t i o n o n or bef o re May 19, 2017. NO FURTHER W RITTEN ORDER W ILL BE ENTERED BY THE COURT.
On July 17, 2017, an order appointing a special m aster was e ntered in the State Farm case. State Farm objected to the entry of that order. T he State Farm order is not bef ore this Court. ¶11. On O ctober 2, 2017, both Saf eco and Liberty Mutual f iled a m otion t o d ism iss the
State’s c laim s f

o r f ailure to join necessary parties and f or f ailure t o state a claim , sim ilar to

m otions that Judge Gowan had granted in Metropolitan

. ¶12. On October 13, 2017, the State, in the State Farm case, f iled a m otion t o consolidate
State Farm with Liberty Mutual and Safeco and a m otion to appoint a special m aster.
Neither the m otion t o consolidate nor the m otion to a p point a special m aster was f iled in the Safeco or Liberty Mutual cases. ¶13. Nevertheless, on October 24 and 25, 2017, Judge Green issued a sua sponte order in
both the Safeco c ase (in which she was not the assigned j udge) and the Liberty Mutual case (in which she was the assigned judge) appointing a special m aster. ¶14. Then, on October 2 6, 2 017, J u d g e G r e e n e n t e r e d an order in the Safeco case that reassigned the Safeco case to her docket. ¶15. O n N o v e mb e r 8 a n d 9 , 2 0 1 7 , S a f e c o and Liberty Mutual f iled a p etition f

o r interlo c u t o r y appeal challenging both the reassignm ent o rder and t he orders appointing a

5special m a ster. 6 In addition to the brief s of t he parties and the am icus, on Novem ber 8, this
Court requested responses f r om Judges Green a nd Gowan. T heir joint r esponse was f iled on
Novem ber 13, 2017, and Judge Gowan f iled a separate supplem ental r esponse o n Decem ber 7, 2017.
ISSUES ¶16. The parties stated the issues as f ollows:
1. Did the circuit court err b y unilaterally and non-random ly reassigning the Safeco case to herself ?
2. Did the circuit court err by appointing a special m aster without f inding an exceptional condition to justif y it and by granting t he s pecial m aster excessive a

uthori t y not warranted b y the f acts of the cases, including p e r mi t t i n g e n g a g e me n t i n u n l i m i t e d s u b s t a n t i v e e x p a r t e com m unications?
3. If the Court f

i nds overcrowding, s hould it a ppoint a s pe c i a l j u d ge to hear t he S afeco and Liberty Mutual cases instead of allowing a circuit judge to unilaterally delegate judicial authority to an unelected special m a ster, at the parties’ expense, including in a case not assigned to the circuit judge?
DISCUSSION
1. Did the circuit c ourt e r r b y unilaterally and non-random ly reassigning the Safeco case to herself? ¶17. Saf

eco argues that the s ua sponte reassignm ent of t his case violated Rule 1.05A(A)
of t he Unif

orm Civil Rules of Circuit a n d C o u n t y Court P ractice. Saf eco also argues that
because Rule 1.05A requires assignm ents t o be random , reassignm ents s hould be random as

6 T h e C o u rt’s d ecisio n in L ib erty M u t u a l w ill b e d ecid ed b y

a sep a rate o p in io n
. 6well.

¶18. The f

irst question under this issue is whether circuit judges hav e t h e a u t h o r i t y to reassign or transf

er a case. This Court’s appellate review of “questions of law are reviewed
de novo.” Miss. D ep’t of Revenue v. Hotel & Rest. Suppl y , 1 9 2 S o
. 3 d 942, 945 (Miss. 2016) (citing Equifax, I

nc. v. M i ss. Dep’t of

Revenue , 125 So. 3d 3 6, 41 (Miss. 2013)). The
Court f inds n o Rule that p rohibits reassignm e nt or transf e r of a c ase to a judge other than the judge t o whom t he case was initially random l y assigned. Further, the Court has f ound no Mississippi case that has interpreted this provision explicitly with respect t o reassignm ents
or transf ers by one judge to another judge in the sam e district. 7 ¶19. Saf

eco’s argum ent is that the reassignm ent order violates Rule 1.05A a nd this Court’s precedent and should be vacated. ¶20. Mississippi does indeed f o llow a rule of random assignm ent of cases. I n Novem ber 2000, this Court prom

ulgated Mississippi Rule of Appellate Procedure 27(g):
The setting of t erm s and a ssigning of causes in dockets in the chancery and circuit courts s hall be done f airly considering t he re l a t i ve workloads o f the judges a nd the right of litigants within the district t o f air and reasonable access to all of the judicial of

f icers, as w ell as r easonable accom m odat i o n o f the requests and needs of all the judges within the district. Further, t he assignm ent of cases and dockets shall be done t hrough a sy stem atic plan r ecognizing the

7 O th er states’ co u rts h av e c o n s i d ered th e p ro cess an d th e p ro p riety o f j u d icial reassig n m en t. S

e e , e.g
. , S ta te v. S p rin t C o m m c’n s C

o ., L .P
. , 6 9 9 S o
. 2 d 1 0 5 8 , 1 0 6 2 (L a. 1 9 9 7 ) (“We h o ld th e j u d g es
. . . can n o t b e p e rm itted t o c o n tin u e th e p ractice o f n o n -ran d o m ly

sw ap p in g cases o rig in ally allo tted to th em b y ch an ce. J u st a s a litig an t m ay n o t ch o o se a co u rtro o m

o r a j u d g e, a j u d g e m ay

n o t select h i s caselo ad o r h is litig an ts.”).

7criteria set out herein.

Then, to e stablish such a sy stem a tic plan, in May 2003, this C ourt adopted Rule 1.05A of the
rules then known as the Unif orm Circuit and County

Court Rules:
in m u lti-judge districts and courts, all civil cases shall be assigned im m ediately on the f iling of t h e c o mp l a i nt by such m e thod which shall i nsure that the assignm ent shall be random , that no discernible pattern of assignm ent exists, and t hat no person s h a l l k n ow to whom the case w ill be assigned u ntil it h as been assigned . . . . ¶21. Today , we recogni z e t h at t he reassignm ent or transf er of cases is n ot prohibited by
rule. 8 Theref

ore, based on our d e n o v o r e v i e w , the Court concludes that cases m ay be reassigned o r t ransf

erred by j u d g e s w h en necessary “to s ecure the just, s peedy , and inexpensive determ ination of every actio n
. ” M .R.C.P. 1. 9 W e now turn t o the review of whether Judge Green abused her discretion in the decision to reassign this case. ¶22. On appeal, we r e v i e w d i s c r e t i o n a r y d e c i s i o ns by trial judges f or a n abuse of

8 Judge Gowan is correct that “[ t]here is n o specif ic s t atute, rule, or case law [ that] prohibits a senior judge, with perm ission f rom the assigned j udge, f rom transf

erring a case f o r purposes of consolidation and judicial econom y .” Since no statute, rule, or case la w squarely addresses the procedures utilized by J u d g e G r een and J udge Gowan, we f ind Mississippi Rule of Ci v i l P r ocedure 81(g) instructive: “W hen n o p rocedure is s pecif ically pre s c r i b ed, the [ trial] court shall proceed in any lawf ul m a nner not inconsistent with the Constitution of the State of Mississippi, these rules, or a n y applicable s t a t u t e
. ” M.R.C.P. 81(g).

9 T h e A d v iso ry C o m m ittee N o te to R u le 1 ad d s th at “ [ t] h e p rim a ry p u rp o se o f p ro ced u ral ru les i s to p ro m o te th e en d s o f j u stice; th ese ru les ref lect th e v iew th at th is g o al can b est b e acco m

p lish ed b y th e estab lish m en t o f a sin g le f o rm o f actio n
. . . th ereb y u n itin g th e p ro c e d u r e s i n law an d e q u ity th ro u g h a sim p lified p ro ced

u re th a t m in im izes tech n ica lities a n d p la ces co n s id era b le d iscretio n in th e t

ria l j u d g e fo r co n s tru in g th e ru les in a m a n n er th a t w ill secu re th eir o b jectives

. ” (E m

p h asis ad d ed .) 8discretion. Douglas v. Burley , 134 So. 3d 692, 6 97 (Miss. 2012) (citing V enton v. Beckham , 845 So. 2d 676, 6 84 (Miss. 2003)). “[ A]n abuse of discretion i s viewed as a strict legal term ”
and d oes not “im

ply [ ] bad f

aith or an intentional wrong on the p art of t he trial judge.” White
v. State , 742 So. 2d 1126, 1136 (Miss.1999). In D ouglas , the Court ruled, [ J]udicial d iscretion is not boundless b ut is def ined as a sound judgm ent which i s not exercised arbitrarily , but with r egard to w hat is right and eq u i t a b l e i n circum stances and l aw, and which is directed by the reasoning conscience of the trial judge t o just result. An a buse of discretion m e a ns clearly against logic and ef f ect of such f

acts a s are presented i n support of the application or against the reasonable and probable deductions to be drawn f rom the f a cts disclosed upon the hearing.
Dou g l a s , 1 3 4 S o. 3d at 697 (em

phasis added) (f

ootnotes o m i tted) (citations om itted) (internal quotation m arks om itted). ¶23. In the re a s s i g n me n t order, Judge Green stated that the purpose of the reassignm ent

was to s erve “judicial econom y and ef f iciency of d if

f erent circuit judg e s p r e s iding over several dif

f erent cases with the s am e or sim i lar issues to be resolved.” She f urther stated that
these cases “should be reassigned to the undersigned j udge on the bases of judicial econom y and ef f iciency , and also to m inim ize the risk of in c o n s i s t e n t j u dicial rulings in the several
cases.” 10 The order also of f ered that t his case “involves extensive and com p lex litigation,
which r equires the u t

most attention f

rom the judge presidin g o v e r t he m atter.” (Em phasis added.)

1 0 Judge G owan was also f am iliar with this litigation. He previously had g ra n t e d a m otion to dism i ss in a sim ilar case. 9¶24. Yet, at the sam e tim e the reassignm ent order was entered, Judge Green also entered

the special-m aster order. There, Judge Green a ppointed a special m aster and g ave the special

m aster extensive powers, which w ill be addressed below. It is i m p ortant to our review here
that we a lso consider Judge Green’s explanation f or the appointm ent of a special m aster. In the special-m a ster order, Judge Green ruled,
The pa r ties in this case have f iled num erous pretrial m otions pertaining to discovery , p rivileged m atters, arbitration and othe r d i s puted m atters. T he h e r ein Court is pressed t o promptly and t houghtfully d

ispose of litigated matters associated with the trial demands of its heavy c i v i l a nd criminal docket, as well as, its duties associated with t he o verall management of the circuit court. Currently , the Court is without the personn e l and r esources to thoroughly and closely m anage the operation of the m assive discovery process believed to be f

orthcom ing in the herein case. (Em phasis added.) ¶25. The wording of

these orders is contradictory

. ¶26. In Canadian N

ational/Illinois Cent

r al Railroad Co. v. Sm ith , the Court f ound “it appropriate to provide f

urther clarif

ic a t i o n a s t o the disposition of the claim s a nd cases of

m isjoined plaintiff

s , f ollowing severance.” Canadian Nat’l / Ill. C ent. R .R. Co. v. Sm ith , 926
So. 2d 839, 844 (Miss. 2006). The f i v e p l a i n tif

f s in Sm ith im

properly joined their claim s under Mississippi Rule of C ivil Procedure 20, so the plaintif f s agreed to sever their claim s. Id. at 841. The Court stated, [ I]n ordering the agreed severance, Hinds County Circuit Judge Tom ie Green proclaim e d that t he c laim s of the f ive rem aining plaintif

f s w ere “properly f

i led in the First Judicial District of H i n d s County , ” and that “this a ction shall proceed as to the claim s of L arry Polk.” The o ther f our plaintif

f s were required t o f ile a m e nded com

plaints and obtain new civil action n um bers f rom t h e
1 0clerk. Specif ically , Judge Green ordered th a t f o ur of the plaintif

f s “shall be severed f rom this action, and shall f

ile am ended com

plaints, and the Clerk is hereby ordered to a ssign new cause num bers f or those a ction s reassigning those cases to the Honorable Judge Tom ie T. Green.”
Id. ¶27. The d ef

endants in Sm ith argued that Judge Green had “ im properly circum vented the
random assignm ent o f cases required by ” Rule 1.05A when she ordered the f our cases reassigned t o her a f

t e r t hey w ere given new cause num bers. I d. The Court, however, expressly chose not t o address t hat issue: “[ W ] e decline to address issues of random assignm ent

. . . .” Id. at 842. Despite this conclusion, the Court af f orded J udge Green the
benef it of the doubt:
Because the suits of all f ive p laintif

f s were o riginally assigned to her, and because she concluded t hat a l l fi v e plaintif f s could properly pursue t heir claim s in the First Ju d icial District of Hinds County , Judge Green thought it appropriate to retain t he case of one plaintif f and order the clerk to assign her the other f

our. Realizing this i s a n i ssue of f irst im pression, a n d givin g Judge Green the benef it of the doubt (to w hich she i s certainly entitled), we c a n n o t s a y h er decision was unreasonable or without legitimate purpose
. Judicial e conomy, alone, could explain her d e cision to retain five similar cases filed against the same defendant

. Id. at 842 (em

phasis added). ¶28. W e recognize that cases are reassigned and transf erred in the c ourts of this State. In
f act, m ost reassignm ents or transf ers go unchallenged as judges diligently work t o g e t her, seeking “justice, unif

orm ity , and [ ] ef

f iciency of c ourts.” See M.R.C.P. Order Adopting
M.R.C.P. Additionally , our R ules of Evidence expres s s i m ilar purposes. W e are to

1 1“adm inister every proceeding f airly , elim inate unjustif

iable expense and delay , . . . to the end
of ascertaining the truth and securing a just determ ination.” M.R.E. 102. ¶29. Thus, we are of the opinion t hat a n y r eassignm ent or transf er of a case would be
im p roper and would not be allowed to stand i f i t w as “ unreasonable or without legitim ate purpose.” Sm ith , 926 So. 2d at 842. ¶30. First, we are concerned by the irregularity

of the r eassignm e nt order’s having been signed by Judge Green, who was n ot the presiding judge, instead of Judge Gowan, to whom
the case had been a ssigned. W h ile circum stances ma y w a r r a n t another judge’s s igning an order i n a c ase, t he better practice is f or the j udge assigned the case to s ign an order reassigning it. W e also believe the better practice would be to give t he parties notice and an opportunity

to address reassignm ent in advance of any reassignm ent order. ¶31. S e c o nd, we are concerned that the reasons f or the r e a s s i g n me n t , w h i c h w e r e articulated in the r eassignm ent order, clearly contradict a nd are in opposition to the reasons given f or the special-m aster or d e r
. The reassignm ent order clearly stated that its goal was judicial econom y

and ef f iciency . Yet, the special-m aster order stated,
The herein C

ourt is pressed to promptly and thoughtfully d ispose of litigated matters associated with the trial demands of its civil and criminal docket, as well as, its duties associated with the overall management of t he circuit court

. Currently , the Court is without the personnel and resources to thoroughly and closely m anage the operation of the m assive discovery process believed to be f orthcom ing in the herein case. (Em phasis added.) ¶32. The p rocedural irregularities in the e n try of the reassignm ent order a nd t he totality of
1 2the circum stances require that we conclude the reassignm ent of this case by J udge Green was

not based on a reasonable, legitim ate, or just i f iable reason. Accordingly , w e v acate the reassignm ent order and rem and this case with instructions t o instructions t o the Hinds County
Circuit C lerk to return t h i s c a s e to the docket of Subdistrict 4 , with Circuit Judge Fay e Peterson presiding.
2. Did t

he c ircuit court abuse i ts discretion in appointing a special m aster? ¶33. Next, Saf

eco challenges Judge Green’s appointm ent of a special m a s ter. W e review
this issue f

or an abuse of

discretion. Massey v. Massey , 475 So. 2d 802, 806 (Miss. 1985) (“The ref erence to a m a ster is discretionary with the trial judge . . . .”). ¶34. The S tate f

iled a m otion to consolidate, w hich included a r equest to a p point the sam e special m a ster serving in State Farm a lso to serve as special m aster i n this case. Like State
Farm , Saf eco objected to the a

ppointm ent. This Court has “recognize[ d] t hat ref erence to

a s pecial m aster without the consent of the parties is the exception and not t he rule.” Lewis

v. Lewis , 54 So. 3d 2 1 6 , 2 1 8 ( Miss. 2011) (citing M.R.C.P. 53(c)). And any “ref erence without the consent of the parties would require a f inding by the [ trial judge] o f exceptional
conditions.” Id. at 2 19. B ut just as she had done in State Farm , Judge Green gave little, if
any , consideration to the o bjection. 11 W ithout c o nducting a hearing, the tria l judge

11 Ju d g e G reen en t ered th e o rd er ap p o in tin g th e sp ecial m aster th e sa m e d a y S af eco f iled i ts o b j ectio n to t h e S tate’s req u est to ap p o in t a sp e cial m a ster, in d icatin g th at sh e g av e little o r n o w e ig h t to th e f act th a t S af

eco h ad o b

j e cted . U n d er R u le 5 3 (c), a n o b j ectio n b y o n e o f th e p arties to th e ap p o in tm en t o f a sp ecial m aster trig g ers th e req u irem en t o f f in d i n g 1 3im m ediately e ntered a s weepi ng appointm ent order granting the special m a ster judicial

authority , bey ond that p erm itted b y Rule 53. Af ter review, we f

ind the t rial court abused its discretion and, thus, vacate the order. ¶35. The trial court’s order appoints an New Orleans-based attorney 12 to serve as special

m aster. The prim ary duty assigned to him is to supervise discovery

. But the o rder does not
lim it his authority to d iscovery

. A lthough stating that the court “shall be the f inal arbiter of
all p retrial and trial issues,” the order expressly grants the special m aster “c o n c u r r ent jurisdiction” with t he tri a l c ourt. And i t em powers h im “to address all litigation m atters.” Further, the order gr a n t s the special m aster express authority “to participate in ex parte
contact with counsel.” 13 A particularly c u r ious aspect of the e x p arte provision is its

an “ex cep tio n a l co n d itio n ” ex ists to j u stif y th e ap p o in tm en t to w h ich t h e p a rties h ad n o t co n sen ted . M .R .C

. P . 5 3 (c). S ee a lso L ew is , 5 4 S o . 3 d at 219.
In S ta te F a rm , n o p arty req u ested th e ap p o in t m e n t o f a sp e c ial m aster— Ju d g e G reen ap p o in t ed o n e su a sp o n te af ter S t a t e F a r m f

iled a m o tio n to d ism iss. S tate F arm o b j ected to th e o rd er, citin g th e f

a ct th e o rd e r f

ailed to sp ecif

y th e p o w ers b ein g co n v e y e d u n d er R u le 5 3 (d ) an d f

ailed to j u stif

y th e ap p o in tm en t u n d er R u le 5 3 (c). Ju d g e G reen o v erru led S tate F arm ’s o b

j ectio n , an d S tate F arm

d id n o t seek p erm issio n to f ile an in terlo cu to ry

ap p eal.

12 T h e ap p o in ted sp e cial m aster is a u th o rized to p r acti c e law in M ississip p i , as req u ired b y M ississip p i R u le o f C iv il P ro ced u re 5 3 (b ).

13 S p e cif ically , th e o rd e r p ro v id es,
IT I S F U R T H E R O R D E R E D t h at th e S p ecial M aster an d h is staf f b e ex p ressly g iv e n th e au th o rity t o p articip ate in ex p arte co n tact w i th co u n sel f o r all p arties in th ese p ro ce e d in g s a s th e [ c] o u rt v iew s ex p arte ex ch an g es w ill b e ex trem ely h elp f

u l t o th e S p ecial M aster’s ab i lity to assist th e p a rties an d th e [ c] o u rt in m an ag in g th ese p ro ceed i n g s m u ch m o r e ef

f i cien tly th an it w o u ld b e w i th o u t th e m
. 1 4authorization to m aintain the secrecy of ex parte contact by excusing the special m aster “f rom the obligation of providing detailed descriptions of his activities in his I nvoices and Requests
f or Distributions of Funds.” A s t o c om pensation, t he order sets the special m aster’s

com pensation at $250 per hour and reim burses him f

or lo d g i n g a nd travel f

rom the New Orleans, Louisiana, area to Mississippi. ¶36. An initial p roblem w ith the order is t he broad authority i t gives to the special m aster.
The order grants the special m aster “concurrent jurisdiction” with the circuit court. Really , the order appoints an a ttorney to s e r v e a s a de f acto special j udge—an appointm ent that is
unq u e s t i o n a b l y b e y ond the trial j udge’s discretionary a uthority u nder R

ule 53. Judge Green’s given j ustif

ication f or t his broad d elegation of judicial authority is the court’s heavy docket
and l ack of personnel and resources to handle t he case. Furtherm ore, in her order a ppointing
the special m aster, Judge Green m aintained, “[ t]he parties in this case ha[ d ] f iled num erous pretrial m otions pertaining t o discovery , privilege d ma t t e r s, arbitration and other disputed

m atters.” But f

rom our review of

the record, this is sim

p ly not so. The reality is that there

were not num erous disputed discovery or arbitration m atters pending—indeed, there were

none. The r e c o r d d o e s , in f act, show that the o nly m o tions pending were two m otions to
dism iss f iled by Saf

e co, plus a m otion to stay discovery pending the outcom e of the dism issal

m otions. But even if these representations were true, Rule 53 is not the appropriate vehicle

1 5to hand of

f judicial duties based on backlogged dockets and resources constraints. 14 ¶37. I nstead, to address these specif ic p roblem s, Mississippi h as a statutory procedure f or appointing special judges. Mississippi Code Section 9-1-105(2) (Supp. 2018) provides, (2) Upon the r equest of

. . . the senior judge of a
. . . circuit court district,

. .

. or upon his own m otion, the Chief Justice of the Mississippi Suprem e Court, with the advice and consent of a m ajority o f t he justices of the Mississippi Suprem e Court, shall have the authority to appoint a special judge to s erve on a tem porary basis i n a c ircuit

. . . c o urt in the event of an em ergency or overcrowded docket

. It shall be the duty of any s pecial judge so appointed to assist the court to which he is assigned in the disposition o f causes so pending in s uch c ourt f

or whatever period o f tim e is designated by the Chief Justice. The Chief Justice, i n h is d iscretion, m ay appoint the special judge t o h ear particular cases, a particular ty pe of case, or a particular portion of the court’s docket. (Em phasis added.) W hile the appointm ent m ay be general in nature, it m ay also be tailored so the special judge hears a particular case or a particular ty pe of case. Id. ¶38. By contrast , t h e p u r p o s e o f s p e c i a l m asters—and the trial judge’s discretionary authority to appoint them— i s mo r e narrowly tailored. T y pically , courts utilize Rule 53 special m asters to review f acts, to organize inf

orm ation, and to g i v e c om prehensive

recom m endations o r r eports to a ssist the judge in m aking his or her decision. These
arrangem e nts m ay certainly extend to discovery m anagem ent. But Rule 53 does not perm it

14 P art o f th e j u stif

icatio n f o r th e ap p o in tm en t is th e f act th e sam e sp ecial m aster h as alread y b een ap p o in ted in a sim ilar case b ef o re th e sam e co u rt. B u t w e n o te t h e o th er case in v o l v es alm o st th i rty tim es m o re in d iv id u al h o me o w n ers in s u ran ce p o licies t h a n in th is case— th o u s an d s o f p o licies as o p p o sed to t h e m ere 2 3 2 S af eco p o licies a t i s s u e in th is m atter a n d th e 1 8 0 p o licies in th e co m p an io n case, L ib erty M

u tu a l In su ra n c e C

o . v. S ta te , N o . 2 0 1 7 -IA

- 0 1 5 8 8 -S C T (M iss. A u g . 2 2 , 2 0 1 9 ). 1 6a trial j udge to bring in a private attorney —over the objection o f o ne of the parties—to serve f or all intents and purposes as the trial judge. If a trial judge anticipates that a case will be

too com plex a nd t im e c onsum ing, requesting the chief justice t o a p point a special judge is
the appropriate route. See Massey , 475 So. 2d at 806 (cautioning that, “[ i ]f it is the intent
of the trial judge to appoi n t a s p e c i a l j udge,” a n d not sim ply a special m aster, “then [ s]he
should a v a i l h[ er]self w ith specif icity of ” the statutory procedures f or o btaining a special judge). ¶39. The second abuse of discretion c oncerns the order’s explicit authorization allowing the special m aster to participate in ex parte com m unication with counsel. ¶40. U n d e r C a

n o n 3 B ( 7 ) o f the Code of J udicial Conduct—which applies equally to specia l

m asters a s it does to judges 15 —“[ a] judge shall not initiate, perm it, or consider e x p a rte

com m unications[ .]” W hile C anon 3B(7) m akes an exception f or “ex parte com m

u nications
f or scheduling, adm inistrative purposes, or em e rgencies that do not d eal w ith the s u bstantive

m atters or issues on the m erits,” such ex parte com m unications are only allowed i f “the judge

m akes provision prom

ptly to n otif

y a ll oth e r p a r t i e s of the substance of the ex parte

com m unication and allows an opportunity to respond.” Miss. Code of J ud. Conduct, Canon 3B(7)(a)(ii). ¶41. I n s t e a d o f r e q u i r i ng that all parties be notif ied of the s ubstance o f the ex pa r t e

15 A special m aster is considered a “ j udge” f or these purposes. Miss. Code o f Jud. Conduct, Application A. 1 7com m

unications and given an opportunity to respond, the circuit judge’s order does the exact opposite. I t i n s t e a d t a k e s extra m easures to craf t a provision aim ed to ensure that any ex parte com m

unications rem ain conf

idential. Speci fi cally , t he order excuses the special m aster
“f rom the obligation of providing descriptions o f his activities in his Invoices a nd Requests
f or D istribution of Funds” f or the express purpose of preventing other parties f r om knowing ex parte com m

u nications occurred. This is a clear violation o f Canon 3B(7) a nd is outside
the b ounds of Rule 5 3

. It also vi o l a t e s R u l e 5 3(a), w hich governs a special m aster’s

com pensation. R

ule 53(a) entitles a special m aster to “reasonable com pensation f

or services
rendered.” But, here, under this concealed-billing approach, there is n o way to determ ine if

a special m aster’s r equested com pensation is r easonable without knowing the parti c u l a r services rendered. ¶42. The order itself a cknowledges the blind-billing provision is “ unusual.” B ut we f ind
it is m ore than that. Requiring both parties—one of w hich is t he S tate of Mississippi—to pay

an attorney in Louisiana to act as a judge, allowing either side to m eet with him ex p arte, and not requiring this special m aster to m e ntion these m eetings or even justif y or detail his bill
f ar exceeds the discretionary authority to appoint special m asters under Rule 53. ¶43. For these reasons, we vacate the order appointing the special m aster. ¶44. VACATED AND REMANDED.
R A N D O L P H , C
. J . , C O L E M A N , M A X W E L L , B E A M A N D C H A M B E R L I N , J J . , C O N C U R . I S H E E , J . , C O N C U R S I N P A R T A N D I N R E S U L T W I T H O UT SEPARAT E WRITTEN OPINION. KITCHENS, P.J., DISSENTS WITH SEPARATE WRITTEN O P I N I ON JOINED B Y KING, P.J. KING, P.J., D ISSENTS WITH SEPARA T E
1 8WRITTEN OPINION JOINED BY KITCHENS, P.J.

KITCHENS, PRESIDING JUSTICE, DISSENTING: ¶45. I respe c t f

u l l y d i s s e n t f

r o m t h e m a

j ority ’s f inding t hat the trial court abused its
discretion in case reassignm e nt. Reasonable a nd legitim ate grounds existed f or reassignm ent
within the sound d i scretion o f the Hinds County Circuit Court, and I f ind that no abuse of
that court’s discretion has occurred. ¶46. This Court consolidated three cases f r om C i rcuit Court of the First Judicial District
of Hinds County f

or purposes of i n terlocutory appeal. 1 6 Circuit C ourt District Seven,

com prised o f Hinds C ounty only , is a m ulti-judge distr i c t

. T h e t h ree cases initially were assigned random ly to circuit court judges under Unif orm Civil Rule of

Circuit and County Court Practice 1.05A. The original assignm e n ts were as f ollows: (1) Safeco - Circuit Court Judge W illiam Gowan (2) Liberty Mutual

- Senior Circuit Court Judge Tom ie Green (3) Cannon - Circuit Court Judge W i lliam Gowan ¶47. Safeco and Liberty Mutual have sim ilar f a ctual backgrounds. 17

16 ( 1 ) S a feco I n s. C o . o f A m . v. S ta te , N o
. 2 0 1 7 -IA

- 0 1 5 5 4

- S C T (M iss. A u g
. 2 2 , 2 0 1 9 ) ( S a feco ) ; (2 ) L ib erty M

u t. I n s. C o . v. S ta t e , N o
. 2 0 1 7 -IA -0 1 5 5 8 -S C T (M iss. A u g
. 2 2 , 2 0 1 9 ) ( L ib e rty M

u tu a l ); (3 ) V i n o d K h o sla , et a l., v. S

ta t e , N o
. 2 0 1 7 -IA

- 0 1 6 3 7 -S C T (M iss. A u g
. 2 2 , 2 0 1 9 ) ( C

a n n o n ). T h e p arties ref

er t o t h e th ird case as C a n n o n r a th er th a n K

h o sla b ecau se th e o rig in al co m

p lain t i n t h e u n d erly in g actio n w as sty led H o o d ex rel. M

ississip p i v. F red C a n n o n et a l. , N o .: 1 5 -C V -0 0 0 1 7 (H in d s C ty

. C i r c u i t C o u rt, 1 st Ju d

. D ist., f i led Jan .1 3 , 2 0 1 5 ) ( C

a n n o n ).

17 S af eco is a su b sid i ary o f L ib e rty M u t u a l; S af eco an d L ib e rty M u tu al f

iled th e sam e ap p ellan t’s b r ief

u n d er th eir resp ectiv e d o c k et n u m b ers in th is C o u rt. 1 9¶48. On Marc h 2 9 , 2 0 1 7 , the S tate f iled these suits against Saf eco and Liberty

Mutual, alleging m isadjustm ent o f 232 hom eowner-insuran c e c l a i m s by Saf e c o and 180 claim s by Liberty Mutual. Safeco was assigned random l y to the n - C i rcuit Judge Gowan’s 1 8 docket; Liberty Mutual

was assigned random ly

to Senior Circuit Judge Green’s docket. ¶49. Bef

ore f iling Safeco and Liberty Mutual , the State had sued Metropolitan Property
and Casualty Insurance C om pany (Metropolitan). That case had been assigned to Judge
Gowan. Saf

eco a nd Liberty M utual em phasize that Judge Gowan had ruled against the State
in M e t ropolitan —a c ase with p retrial issues very s i mi lar to those in Safeco and Liberty
Mutual —on pretrial m atters bef ore Safeco and Liberty Mutual were f iled. S a f e co and
L i b e rty Mutual point o ut that J udge Green h ad n ot ruled on any of the sim ilar pre t r i a l

mo t i o n s f

iled in the HAP cases random ly assigned to her. The f i rst HAP case, brough t against State Farm Fire & Casu a l t y C om pany (State F arm ), was f

i led on April 21, 2015. 19 Judge Green had not ruled on s im i lar m otions f iled in State Farm , and o n July 17, 2017, she appointed a special m aster—Bobby Harges, J.D., LLM 20

— to handle the discovery

process in State Farm

.

18 J u d g e G o w an retired in M arch o f 2 0 1 8

.
19 M ississip p i e x rel. H o o d v. S ta te F a rm F ire & C a s. C o . , N o
. 1 :1 5 -cv -0 0 2 2 1 -T T G (H in d s C ty . C ircu it C o u r

t, 1 st Ju d . D ist., f

iled A p ril 2 1 , 2 0 1 5 )

.
20 M r. H arg es is a l icen sed atto rn ey in M ississip p i a n d L o u isian a. A lth o u g h criticized b y th e m aj o rity f

o r r e s i d i n g in L o u isian a, I b eliev e th at h is cred ib ility is e n h an ced b y h is relativ e rem o ten ess f

r o m M ississip p i p o litics an d b y th e f act t h at h e n ev er p ractices b ef o re th e C ircu it C o u rt o f

H in d s C o u n ty

. 2 0¶50. On October 13, 2017, the S tate f iled a m otion t o consolidate State Farm , Safeco , and Liberty Mutual , and f

or the appointm ent of a special m aster. T he m otion was f iled in State
Farm , and notices of that f iling were f

iled in Safeco and Liberty Mutual

. The S tate m oved
f or consolidation u n der M i s s issippi Rule of Civil Procedure 42(a) and also s ought to have Special Master Harges a dm inister Safeco a nd Liberty Mutual o n c e consolidation had

occur r e d. Both Saf

eco and Liberty Mutual f i led objections to consolidation under their respective docket num

b ers. ¶51. On October 2 3, 2017, Judge Green signed an order e ntitled “ O rder Reassigning Case”
under the Safeco docket num ber. The order reads, in part, [ T]his case should be r eassigned to [ Judge Green] on t he bas[ i]s of judicial econom y a nd ef

f i ciency , and also to m inim ize the risk of inconsistent judicial rulings in the several cases. Pursuant to the undersigned judge’s statutory authority :
IT IS THEREFORE ORDERED AND ADJUDGED that therein i n c ase [ sic] shall be reassigned to the docket of Senior J u d ge Tom i e Green (by agreem ent of Judge Bill Gowan) f or all f urther p roceedings. 2 1 F urther, upon reassignm ent, the Court s h a l l c onsider the appointm ent of S pecial Master Bobby H arges and t he Consolidation of this c ase w ith sim ilar cases brought by the Mississippi Attorney

General. ¶52. Also on October 23, 2017, Judge Green signed an order appointing Special Master Harges to Safeco and L iber t y M u t u a l

. The t wo special m aster appointm ent orders were entered into the court record on October 24 and 25, 2017, while the r eassignm ent order was

21 W h ile th e p arties an d th e circu it co u rt j u d g e s ref er to th e m o v in g o f a c a se f ro m o n e j u d g e’s d o ck et to an o th er as a “reassig n m en t,” th i s o c c u r ren ce co u ld b e called a “tran sf er.” 2 1entered on October 26, 2017. F rom these orders Saf eco and Liberty

Mutual petitioned this
Court f or interlocutory

review. ¶53. Regarding the alleged a buse of its discretion in the appointm e n t of a special m aster
in Safeco and Liberty Mutual , I would not vacate the special m aster appointm ent f or the

reasons discussed in Presiding Justice King’s separate opinion, with which I concur f ully

. On appeal, the petitioners and the S t a t e a s sert several dif f erent issues. The central issue presented respecting the reassignm ent order m ay be sum m arized as f

ollows:
M a y trial court judges in a m ulti-judge di s t r i c t r e a s s i g n c a s e s a m o n g s t them selves? ¶54. T h e ma

j o r i t y a n s wers that question in the a f f irm ative: c ircuit j udges do have t h e authority to reassign and transf er a case, and that r eassignm ent does not violate t he random assignm ent requirem ent o f Rule 1.05A. Moreover, t his Court allows trial courts t o m anage their own dockets, and that f unction f irm ly resides within t he power of t hose courts. 22 The

22 F o r ex am

p le, R u le 2 o f th e L o cal R u les o f th e F if teen th C ircu it C o u r

t D istrict allo w s th e f o llo w in g p ro ced u re: O n ce a case is assig n ed to a Ju d g e b y th e letter sy stem , th at Ju d g e sh all h an d le th at case u n til f

in al d isp o sitio n . F o r

g o o d cau se, a Ju d g e m ay tran sf er a case to an o th er Ju d g e o f th e D istrict f o r th at Ju d g e’s h a n d lin g an d , u p o n t ran sf e r, th e clerk is to ad d a h y

p h e n an d t h e letter o f th at J u d g e’s P lace t o sh o w th e case h as b een tran sf

erred

. If S af eco w e re co rrect, j u d g es in th e F if teen th C ircu it C o u rt D istrict w o u ld b e in v io latio n o f th e C o d e o f J u d icial C o n d u ct ev ery tim e a case w as t ran sf erred u n d er R u le 2 o f t h a t d i s t r i c t’s l o cal r

u les, w h ich th is C o u rt h as ap p ro v ed

. S u ch a resu lt sh o u ld n o t b e asc r i b e d t o t h e C o d e o f J u d i cial C o n d u ct in asm u ch as w e h av e l eg itim ized in tra-co u rt reassig n m en t o r tran s f

er as b e in g w ith in j u d icial d iscretio n
. S ee a lso F if

th C h an cery C o u rt 2 2s am e is true of the f ederal sy stem

. See United States v . S tone , 411 F .2d 597, 5 99 (5th Cir. 1969) (“District judges m a y by rule, o rder or c onse n t t r a n s f e r cases between t hem selves.

.

. . [ and] h ave the inherent power to transf er c ases f rom one to another f

or the expedi t i ous adm inistration of

justice.” (citing 28 U.S.C.A. § 137 (W est 2018))). ¶55. The m ajority f

avorably cites our decision in Canadian Nat i o n a l / I l l i n o is Central
Railroad Co. v. Sm i

th , 926 So. 2d 839 (Miss. 2 006), in which this Court recognized that trial

court judges have authority to retain or assign c a s es without im p licating Rule 1 .05A. Maj. Op. a t ¶¶ 26-27. F urther, the m a jority , citing Sm ith , a c k n o w l e d ges that this Court gives considerable discretion to the authority of trial courts to “reassign” cases intra-docket:
Because the suit s o f all f ive plaintif

f s were originally assigned to [ Judge Green], and because s h e concluded that all f ive plaintif

f s could properly pursue their c laim s in the First Judicial District of Hinds County , J u dge Green thought it appropriate to retain the case of one plaintif f and order the clerk to assign her the other f

our. Realizing this is an issue of f irst im p ression, and giving Judge Green the benef it of the d o u b t ( t o which she is certainly entitled), we cannot say h er decision was unreasonable or without legitimate p urpose
. Judicial e conomy, alone, could explain her decision to retain five similar cases filed against the same defendant

. Sm ith , 926 So. 2d at 842 (em phasis added). ¶56. W h ile today ’s m ajority would not allow a r eassignm ent to stand if “unreasonable o r without legitim ate purpose,” this Court, in Sm ith , af f orded J udge Green “the benef it of the

D i strict L o cal R u le 1 4 (“A case m ay b e tran sf erred to an o th e r d iv i sio n o n ly b y ag reem en t o f th e C h a n cello r o f

th e d iv i sio n s in v o l v ed

. ”).

2 3doubt” regarding the trial c ourt’s prerogative to reassign cases. Contrary to o u r p r e c e dent,

the m a jority in this case dec l i n e s t o give Judge Green t he benef it of the doubt. Moreover,
here we have d e tailed e xplanations f rom the judges thems e l v e s on the r easons f or reassignm ent. ¶57. Both Judge Green and Judge Gowan, at t his Court’s request, f i led responses to these appeals o n Novem

ber 13, 2017, explaining the r easons f o r their actions c o n c e r n ing reassignm ent or transf

e r. The judges strongly def ended and provided suppor t f or reassignm ent: inter alia, Judge Gowan stressed that he agreed to the reassignm ent “f or the
purposes o f judicial econom y , since Judge Green was assigned the e arlier case and the m ost

num ber of insurance cases, and in an ef f ort to ensure that the requisite am ount of attention
and ef f iciency was m a intained in this case.” Judge Green additionally responded that “[ a]f ter
the undersigned judges r eviewed the f iles of State Farm [ ], L iberty [ ], and S af eco [ ], the undersigned [ ] agreed that ju d icial econom y and ef f iciency dem anded that the Court
transf er/reassign S af

e co f rom Judge G owan t o Judge G reen who had already been properly assigned the State F arm and L iberty Mutual insurance cases.” The trial court to o k t h e se actions w i t h i n t h e legitim ate context of case m anagem ent a nd i n a n ticipation of
consolidation. T h e m ajority , however, (as Judge Gowan f o und regarding Saf

eco’s contentions), “ i n s ert[ s] an intention that was com pletely absent f

rom the thought-process
behind the attem

pt to consolidate these f

actual[ l y ]-sim ilar m a tters.” ¶58. Judge G r e e n a n d Judge G owan did not act inconsistently with any Mississippi law.

2 4“Trial courts have inherent authority and duty to control their dockets f or the orderly disposal
of business.” Harris v. Fort Worth Steel & Mach. Co. , 440 So. 2d 294, 296 (Miss. 1983);

see a lso Hanson v. Disotell , 106 So. 3d 345, 347 (Miss. 2013) (“Our precedent clearly provides trial judges the ‘inherent authority t o d i s m iss cases f or f ailure to prosecute as a

m eans o f controlling the court’s docket and ensuring [ expeditious] just i ce.’” ( alteration in original) (quoting W

atson v. Lillard , 493 So. 2d 1277, 1278 ( M i s s
. 1 986))); Sm ith v. Norm and Children D i v e r s i f ied C lass Tr. , 1 22 So. 3d 1234, 1238 ( Miss. Ct. App. 2013) ( “ Trial courts in Mississippi likewise have the inherent a u thority t o c o ntrol their own dockets.

. . . The decision of whether to consolidate cases rem a ins within the sound discretion
of the trial court.” (internal quotation m arks om itted) (citations om itted)). ¶59. It is not s u ggested that judges in m ulti-judg e d i s t r i c t s h ave inherent and ultim ate authority over their colleagues’ dockets. I w ould hold that, when judges in the s am e district, who, acting in a g r eem ent, reassign or transf er c ases between or am ongst them selves, their
inherent a

u t h o r i ty over their dockets em powers them to do so absent a contrary rule, controlling precedent, or statute. ¶60. Judge Green’s order reassigning Safeco to her d ocket expressly did not consolidate Safeco , Liberty Mutual , and Sta t e Farm : “Further, u

pon reassignm e nt, the [ c]ourt shall
consider

. . . the [ c]onsolidation of this [ c ase] with sim ilar cases brought by the Mississippi Attorney General.” But the State had m oved f or consolidation under Rule 42, and J u d g e Green and J udge G o w a n explained that the reassignm ent was f or purposes of eventual

2 5consolidation. Notwithstanding that consolidation i n the t rial court was y et to occur, no law

prohibited Judge Green and J udge Gowan f r om reassigning the c ase in t he m anner they did, regardless of whether consolidation cam e to f ruition bef

o re or af t er the reassignm ent, or not
at all. Moreover, the senior circuit court judge in a district has statutory authority to do as Judge Green did under Mis s i s sippi Code Section 9-7-3(5) (Rev. 2 015) (“The s enior judge shall have the right to assign causes and dockets . . . .”). ¶61. Although it is conceivable that one could craf t principles respecting “best practices”

to accom plish reassignm e nt, any possible procedural i rregularities d o not preponderate against the “reasonable, legitim ate, or justif iable reason” the circuit j udges p rovided f or their
actions. Under these c ircum stances, I would uphold the order of reassignm e nt in d ef erence
to these judges’ discretion and inherent authority

. C ircuit Judges Green a nd G owan acted
within their lawf

ul authority and in the com plete absence of any nef

arious or corrupt m otive.
A m i d a c c u sations by Saf eco that som ehow they were com plicit in a “judge-shopping” enterprise, and at the behest o f t h i s Court, these seasoned t rial j udges provided r easonable explanations f

o r t he case transf

er or reassignm ent. They supported their decisions with

num erous, relevant citations. T hese respected jurists, possessed o f m ore judicial experience
than m o st m em

bers of this Court, conscientiously e xercised t h e well-established authority
the m ajority

recognizes they

could wield, and they

have in nowise abused their discretion. ¶62. I would af

f irm the Hinds County Circuit Court’s reassignm ent or t r a n s f e r o f t h e instant case to Senior Judge Green’s docket, and I would af f irm that Court’s appointm ent of

2 6Special Master Harges with the m odif ications suggested by

Presiding Justice King. KING, P.J., JOINS THIS OPINION. KING, PRESIDING JUSTICE, DISSENTING: ¶63. I join Presiding Justice K itchens’s dissent as t o Part I of the m ajority opinion. I agree
with P art II of the m ajority opinion only to the extent that the C o urt f inds inappropriate and reverses the portion of the trial court’s order that allows ex parte com m unications, and the corresponding blind billing provision. However, I d o not believe that the overall appointm e nt of a special m a ster was an abuse of d iscretion; i nstead o f reversing the appointm e nt o f a special m aster, I would reverse and rem a nd the order f or the trial court to

rec o n sider the duties and authorities of the special m aster, and to elim inate the ex parte

com m u n i c ations and blind billing provisions. Accordingly , I respectf ully dissent. Additionally , I w rite f

urther to explain m y objections to any suggestion that this Court should appoint special judges to Hinds County

. A. Special Master ¶64. Part II of the m ajority opinion opines that the entire order was “ sweeping” and bey ond
the authority perm itted by Rule 5 3. Maj. Op. ¶ 3 4. It insinuates t hat the order should “lim it
his authority to discovery .” Maj. Op. ¶¶ 35, 38. It f urther com

plains t hat the order em

powers the special m aster “ to address all l itigation m atters.” M aj. O p. ¶ 35. Additionally , it opines
that Rule 53 does not allow a p p o i n tm ent o f a special m aster d ue to a heavy docket or lack
of r esources to h andle a p articular case. Maj. Op. ¶ 36. W ith all d ue respect, the m ajority ’s

2 7interpretation o f t he narrow l i mi t s o f R ule 53 belies both Rule 5 3 itself , and this Court’s
caselaw.
1. Reasons to Appoint a Special Master ¶65. The m ajority argues that Rule 53 does not allow a judge to appoint a special m aster
because t hat judge h as a crowded docket or is f a ced with a p articular ty

pe of com plex case. Yet, nothing i n Rule 53 p rohibits a trial judge f rom doing so. Rule 53 s tates that, when the parties do not consent to a special m aster, “a ref erence shall be m ade only upon a showing
that som e exceptional condition requires it.” Miss. R. Civ. P. 53(c). This Court has held
that “ we will n o t assum e that a trial judge o f this state would issue an or der of ref erence without som e exceptional condition requiring it.” Massey v. Massey , 475 So. 2d 802, 806 (Miss. 1 985). W hile the trial court in this case did point to its heavy docket, it also justif ied
the appointm ent of a special m a ster by “the com plex issues i nvolved in t his case and the

num erous pre-trial a nd d iscovery disputes f iled and anticipated[ .]” 23 Indeed, the “com plexity
of mo d e r n civil litigation” is one reason attributed t o the increasingly com m o n nature of special m a ster appointm ents. 2 J ef f rey Jackson et al., Miss. Practice Series: Civil Procedure § 2 6:1 (updated May 2019), W estlaw. “The rules governing civil practice in Mississippi and
elsewhere are bottom ed on t hree v a l u es: justice, speed and econom y
. . . . In som e cases,

23 T h e m aj o rity e m

p h asizes th e f

act th at n o t m an y

d isp u tes h ad alread y b een f iled in th e case. W h i le th is is tru e, th e co u rt also cited th at it a n ticip a ted n u m ero u s d isp u tes. P art o f p r o p erly p r ep arin g to m an ag e a case is an ticip atin g p ro b lem areas. T h e co u rt h ad am p le ex p erien ce w ith a case o f th e sam e th e n atu re an d th e c o u n sel o n b o th sid es i n th at case. T h e co u rt’s an ticip atin g n u m ero u s d isp u tes b ased o n ex p e rien ce is n o t f ar-f e t ch ed

. 2 8special m a sters can assist t he court by im p r o v i n g t he quality of f

a ct f inding through m ore investigation o f

com plex issues and the lending of the m aster’s expertise to the court.” Id. (citing Miss. R. Civ. P. 1). F urtherm ore, the t rial court is in the best position to determ ine
whether c o m

plexities in a c ase are suf

f iciently exceptional to warrant ref e rence to a special

m aster. Miss. Power Co. v. Miss. Pub. Serv. Com m ’n , 135 So. 3d 887, 891 (Miss. 2014). Thus, I would f

i nd t hat the trial court’s reasons f or appointing a special m aster were not an abuse of discretion.
2. Authority of a Special Master ¶66. Rule 53 a llows a c ourt the discretion to grant a s pecial m aster powers that are either
broad or narrow in nature.
The order o f ref

e rence t o the m aster may specif y or lim it his powers and may direct h im to report only upon particular issues or to do or perf orm particular acts or to receive and report evidence only and m ay f ix the tim e and place f

or beginning and closing the hearing and f or the f i ling of the m as ter’s report. Subject to the specif

i cations and lim itations stated in the o rder, the m a s ter h as and shall exercise the power to regulate all p roceedings i n every hearing bef ore him and to do all acts and take all m easures necessary or proper f or the ef f icient perf

orm an c e o f h i s duties under the order. He m ay r equire the production bef

ore him o f evidence upon all m atters em b raced in the ref

erence

. . . . Miss. R. Civ. P. 53(d) (em phasis a dded). Rule “53(d) does not r equire t hat the order specif y

or lim it t he powers of the m aster, but only provides that the o rder ‘ m ay ’ do s o; otherwise, the
powers of the m aster are b road.” Massey , 4 7 5 S o
. 2d a t 806. Special m asters have even conducted the trial o n the m e rits. See, e.g. , L oggers, L .L.C. v. 1 Up Techs., L.L.C. , 50 So. 3d 992, 993 (Miss. 2011). Additionally , 2 9special m asters have been appointed t o prepare accountings, determ i ne prof its, determ ine partnerships rights, e quitably wind-up and dissolve businesses, value business interests, investig a t e e state adm inistration, hold divorce hearings and consider com pliance with divorce j udgm ent, h o ld contem pt hearings, hold civil com m itm ent hearings, hold bar reinstatem ent evidentiary hearings, r econcile conf

licting land s urvey s, conduct f actual investigations, inventory a ssets and d e bts to determ ine a n equitable distribu t i o n of personal property , certif

y a church congregation’s vote on whether to retain its pastor, partition property , resolve discovery disputes, and rule on pre-trial evidentiary issues. Jackson, e t al., s upra , at § 2 6 :1. I ndeed, “ a ref erence containing no lim itations is a general
ref erence to report o n all the issues, b oth of law and f act, involved in the litigation.” Banks

v. Banks , 6 48 So. 2d 1116, 1124 (Miss. 1994) ( quoting 5A Jam es W m
. Moore e t al., Moore’s
Federal Practice Ch. 53 (2d ed. 1994)). The prim ary restriction on a special m aster is that
“the court cann o t

. . . ref er the whole c ase to the m aster f or f inal decision .” Id. (quoting Moore, supra , at Ch. 53). The cour t , theref ore, m ust decide i ssues and render a f inal
decision. Id. (quoting Moore, supra , at Ch. 53). Further, a special m aster i s not authorized to order parties to perf

orm specif

i c duties as a result of

a hearing. Id. ¶67. The m ajority relies heavily o n t h e trial court’s statem ent t hat it “retains concurrent j urisdiction with the Special Master in this case and the Court shall be f inal arbiter o f a l l pretrial and trial issues.” W hile I agree tha t the trial court’s use of the phrase “concurrent jurisdiction” was not an optim a l word choice, I disagree that, read i n c ontext, this phrase granted the f

ull jurisdiction of

the court to the special m aster. The trial court clarif ied that
it was the f

inal arbiter of all issues, and the court w as t o ma k e a l l f i n a l decisions, as is appropriate and m andated. Rather than granting the special m aster the f ull jurisdiction of the
3 0court, as the ma j o r ity insinuates, this statem ent, while adm ittedly i nartf u lly worded, is an
attem pt to clarif

y that the broad grant of authority to the special m a ster did not deprive the
trial court of its jurisdiction, and it reserved all f inal decision-m aking e xclusively t o the trial

c o u r t

. I would theref

ore conclude that the appointm ent of a special m aster, e ven one with
broad and general powers, was not an abuse of discretion. 24 C onsequently , I would reverse the portion of the trial court’s o r der r egarding ex parte contact and blind billing, and would

rem and t he entire order f or t he trial court t o r e v i s i t , c l arif y , and d ef

ine t he duties and authority of the special m aster. ¶68. T h e ma

j o r ity , with its rulings that trivialize and m inim ize Judge Green ’ s a b i l i t y , judgm ent, and f

indings, is m icrom anaging t h e a d mi nistration o f the Hinds County Circuit
Court a nd this particular j udge. The Court of Appeals has m entioned overcrowded dockets
in three other counties in its 2019 opinions alone, y et t his Court is n ot c l am oring to appoint special judges and m icrom anage those courts. In Sullivan v. Maddox , the Court of Appeals
noted that in Sim

pson County Judge Shoem ake appointed a s pecial m aster because he had

a f u ll calendar, a s w ell as adm inistrative responsibilities. Sullivan v. M addox , N o. 2017-CA

24 I am also co n cern e d w ith th e m aj o rity ’s i n e x p licab le f o cu s o n th e state o f resid en ce o f th e sp ecial m aster an d th e in sin u atio n th at t h is sh o u l d b e d isq u a l if y in g , ev en w h ile ad m ittin g th at th e sp ecial m aster m eets th e e x p licit q u alif icatio n s o f R u le 5 3 (b ). T h e sp ecial m aster w as b o rn in M ississip p i, atten d ed M ississip p i S tate U n iv ersity an d th e U n iv ersity o f M ississip p i S ch o o l o f L a w , tau g h t at th e U n iv ersity o f M ississip p i S ch o o l o f L aw , is ad m itted to t h e M i ssissip p i B ar, h a s p u b lish ed articles o n M i ssissip p i l aw , an d h as sat o n th e b o ard o f d irecto rs o f th e M ississip p i B ar A ltern ativ e D isp u te R eso l u tio n S ectio n
. T h e f act th at h e is cu rren tly a law p ro f e s so r in L o u isian a is h ard ly d isq u alif y i n g , n o r d o es R u le 5 3 m ak e th e sp ecial m aster’s state o f resid en ce a d isq u alif

y i n g issu e. 3 100418-COA, 2019 W L 3423397 (Miss. Ct. App. July 30, 2019). This Court is also aware
of other troubles in Sim

pson County that would contribute to congested dockets, nam ely the suspension o f Judge Shoem ake in 2016. S ee Miss. Com m ’n on Judicial Perform ance v. Shoem ake , 191 So. 3d 1211 (Miss. 2016). The Court of Appeals has also f lagged
overcrowded dockets as a n issue (and a seem ingly pervasive one) in H arrison County , which trigger speedy trial issues. May v. Stat e , N o. 2017-KA-01415-COA, 2019 W L 2183468 ( M i s s
. Ct. App. May 21, 2019); see also Parks v . State , 228 So. 3 d 853 ( Miss. Ct. App.
2 0 1 7). Scott County has also recently been f l agged as having crowded docket problem s , triggering speedy trial issues. Ford v. State , No. 2018-KA-00395, 2019 W L 2353432 (Miss.
Ct. A pp. June 4 , 2019). If the m ajority is so concerned a bout overcrowded dockets and the
adm inistration of justice, why , then, is i t n o t a l s o advocating f or judges in these courts,

nam ely Harrison County Circuit Court, Sim p son County Chancery Court, and Scott County
Circuit Court, to request the appointm e nt of special j udges? W hat is the dif f erence between
Hinds County Circuit C ourt a nd the other courts who cite overcrowded dock e t s ? I s i t a dif f erence in personalities of the judges? Or i s som e other clearly distinguishing f actor the
dif f erence? The f

ailure to treat all courts citing crowded dockets equally is puzzling.
B. Special Judges ¶69. The m ajority suggests that its m em bers m ay be o pen to the sua sponte appointm ent

3 2of special judges to Hinds C ounty by the chief justice of this Court. 25 Again, why t h e

m ajority is so f

ocused on special judges in Hin d s C o u n t y , and Hinds County alone, is puzzling. ¶70. I a g r e e t h a t t h is Court has constitutional responsibility f or the a d m inistratio n o f justice, and that responsibility i ncludes ensuring that the dockets in all courts in the state

m ove at a pace com m e nsurate with e n s u r i n g justice. And I agree that Mississippi Code
Section 9-1-105 is one o f the m ethods by which this Court m ay im plem ent that r esponsibility

. I am not diam et r i c a l l y o p posed to the appointm e n t of special j udges in Hinds County a s a general m atter; I sim

p ly think that appointm e n t a t t his j uncture is prem ature a nd lacks
f oundation. Section 9-1-105 gives the chief j ustice, with t h e c o n sent of a m ajority of the justices of this Court, t he authority to appoint a special j udge “in the e vent o f an em ergency

or overcrowded docket.” Miss. Code Ann. § 9-1-105 (Rev. 2014). T his Court does not have adequate proof

of either to appoint a special judge. ¶71. No true f

oundation exists regarding the need to a p p o i n t s p e c i a l j u d g e s i n Hinds County bey ond r e p u t a t ion and statem ents regarding the judges being b usy
. This Court
decides m atters according to f acts shown in the records b ef ore it. Underwood v. State , 708
So. 2d 18, 26 ( Miss. 1998). This Court does not generally engage in speculation, conjecture,

25 I n o te th e h y

p o c risy in d isallo w in g Ju d g e G r e e n t o ap p o in t a sp ecial m aster in acco rd an ce w ith R u le 5 3 a n d o u r caselaw in o rd er to m o v e c ases alo n g , a n d th en f o rcin g sp ecial j u d g es o n H in d s C o u n ty b ecau se th ey h av e n o t m o v ed cases alo n g to t h e m aj o rity ’s satisf a ctio n
. 3 3supposition, or g uesswork regarding the f acts necessary in a case. Sears, Roebuck & Co. v. Learm onth , 95 So. 3d 633, 637-39 (Miss. 2012) (Randolph, J., f or the Court). W e d o n ot
have a ccurate o r reliable f acts bef o re us at t his juncture t o determ i ne whether an “em ergency

or overcrowded docket” exists. I would be open to the consideration of such an appointm ent
should the judges of Hinds County request such a n appointm ent, or should f acts be adduced regarding the pace of the a dm inistration of justice in Hinds C o u n t y , i ndicating that an

em ergency or overcrowde d d o cket necessitates the appointm ent o f a special judge. I also
note, should th i s C o u r t eventually consider such an appointm e nt in H i nds C ounty due to a crowded docket, that this Court’s r esponsibility f or the adm i nistration of justice requires that we apply the sam e standards to all the various courts of the State. KITCHENS, P.J., JOINS THIS OPINION.

3 4