IN THE SUPREME COURT OF MISSISSIPPI N O. 2015-CT-00256-SCT CY NTHIA KULJIS

v. WINN-DIXIE MONTGOMERY , LLC ON WRIT OF CERTIORARI DATE OF JUDGMENT: 02/06/2015 TRIAL JUDGE: HON. CARTER O. BISE TRIAL COURT ATTORNEYS: DAVID W

. STEW ART JAMES K. W ETZEL GARNER J. W ETZEL COURT FROM W HICH APPEALED: HARRISON COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANT: GARNER J. W ETZEL JAMES K. W ETZEL ATTORNEYS FOR APPELLEE: DAVID W

. STEW ART BRIAN C. W HITMAN NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: AFFIRMED - 03/30/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. WALLER, CHIEF JUSTICE, FOR THE COURT: ¶1. Cy nthia Kuljis appeals t he chancery court’s dism issal o f her Bill of Discovery f or lack of subject-m atter jurisdiction. The Bill sought discovery related to a prospective prem isesliability and personal-injury claim

. Finding the actions of the c hancery court were correct as

a m atter of law, w e af

f irm the Court of Appeals’ j udgm ent and the chancery court’s dism issal of this case. FACTS AND PROCEDURAL HISTORY¶2. Cy

nthia Kuljis a lleges she suf f ered i n j u r i e s when she t ripped on a piece of rubber holding down a c a r p e t i n the W i nn-Dixie grocery s t ore in D’Iberville, M ississippi. As a result, she f

iled a Com

plaint f or Discovery in t he Harris o n County Chancery Court, requesting that the chancellor order W inn-Dixie to “produce incident r eports, p hotographs, video surveillance, investigation reports, work orders, w itness statem ents of the incident in question and all other inf orm ation that m ay

be in their possession.” W inn-Dixie m oved to dism iss, arguing Kuljis m ust f irst f ile a com plaint f or neg l i g e n c e in the circuit court and obtain discovery

through the Mississippi Rules of Civil Procedure. ¶3. T h e c h a

n c e l l o r d i s m i s sed Kuljis’s c om plaint, f inding she could not pursue a com plai n t f or discovery in chancery court w hen the Mississippi Rules of Civil Procedure provided her

an adequate opportunity f or discovery in c ircuit c ourt. Kuljis appealed, and the Mississippi Court of Appeals af

f i rm ed. K u ljis v. W in n -D ix ie M

o n tg o m ery, L L C , 2 0 1 6 WL 1 2 0 3 8 2 3 ,
* 1 (M i ss. C t. A p p . M ar. 2 9 , 2 0 1 6 ). W e granted certiorari. DISCUSSION ¶4. The b ill of discovery is a viable equitable action a nd rem e dy in c h a n c e r y court, but
not under th e f

a c t s of this case. Kuljis seeks discovery in chancery court f or a trip and f

all
at a W inn-Dixie grocery s tore. Yet the chancery court lacks jurisdiction over personal-injury actions. See Miss. Const. art. 6, § 159 (1890). To distinguish between the chancery court’s and c ircuit court’s subject-m atter jurisdiction, “the sub s t a n c e o f t he action

. . . should be controlling on the issue, not its f orm or label.” Briggs & Stratton Corp. v. Sm ith , 854 So. 2d 1045, 1049 (Miss. 2003) (quoting Tillotson v. Anders , 551 So. 2d 212, 214 (Miss. 1989)).
2In addition, where doubts exi s t r e g a r d i ng the legal or equitable nature of a c a se, the case

should be tried in the c ircuit court. Southern Leisure Hom es, I nc. v. Hardin , 742 So. 2d 1088, 1090 (Miss. 1999). ¶5. The bill of discovery is an original action that m ay be pursued when t here i s no other

reme d y , as set out i n State Oil & Gas Board v. M cGowan and Moore v. Bell ChevroletPontiac-Buick-GMC, LLC

. McGowan involved an adm inistrative proceeding bef ore the Mississippi Oil a nd Gas Board w here McGowan sought additional discovery to prepare f or

a h e a r i n g . S

t a te Oil & Gas Bd. v. McGowan , 542 So. 2d 244, 245 (Miss. 1 989). Af ter th e Board denied his r equest, he f iled a Bill of Discovery in chancery court. Id. The M cGowan Court f ound that the Bill of Discovery was a vi a b l e a c t i o n, as a dm inistrative proceedings specif ically are e xcluded f

rom the Mississippi Rules of Civil Procedure and no d i s covery

m echanism exists under t he A dm inistrative Procedures Act. Id

. at 247. Despite f i nding that the Bill of Di s covery was an appropriate p rocedural device, the Court f ound that, because discovery was not perm itted u nder the Oil and Gas Board’s rules, it could n ot b e sought by McGowan through a bill of discovery

. I

d . at 248. ¶6. In Moore , this C ourt f o u n d t h a t a b i l l o f discovery was a viable m eans to obtain d i s c o v e ry in conjunction with adm inistrative proceedings. Moore v. Bell Chevrolet-Pontiac
Buick-GMC, LLC

, 864 So. 2d 939, 947 (Miss. 2004). H owever, the C ourt f o und that it was not perm itted there because the parti es seeking it had not “dem o nstrate[ d ] that they were diligent or [ h ad] m a de re a s o n a b l e ef f orts to exhaust other avenues of o btaining the inf orm ation without proceeding in [ the] trial court on a com p laint f or discovery .” Id.

3¶7. Filed by w ay of Citation to Supplem ental Authorities pursuant to Mississippi Rule of

Appellate Procedure 28(k), K uljis cites the r ecent decision o f E l i z a beth Graham and Matthew Graham v

. Jam es “Jaim e” R. Franks, Jr. And Wheeler and F ranks Law Firm , P.C. in support o f h e r Bill of Discovery

. Graham v. F ranks , No. 2015-CA-01428-COA, 2017 W L 194268 (Miss. Ct. App. J a n . 1 0 , 2017). 1 The Graham s retained Franks f or representation in a crim inal m a tter f or a f ixed f ee. The G raham s alleged that, notwithstanding the f ixed-f ee contract, Franks dem anded, and they paid, additional m oney and gave what is described as valuable property in excess of the f ixed f ee. Id. B e c o mi n g disenchanted with the r epresentation, the Graham s hired dif f erent counsel and sought do cum entation and explanation f

or the f ees Franks h a d c h a r g ed. I d. W hen rebuf

f ed, t he Graham s f

iled their “[ c]om plaint f o r [ d]iscovery , [ a ]ccounting, and [ r]eturn of [ p]roperty ” in chancery court. Id. The trial court dism issed the com p laint f or f ailure to plead the s pecif

ic c auses of action. Id. ¶8. The C ourt of Appeals reversed, holding that a com plaint f or discovery and accounting is a viable, standalone, cause of action, properly subject to e quitable jurisdiction in chancery
court
. T h a t court f

ound t hat “[ i]t is bey ond dispute that a com plaint f or an accounting is a valid cause of action under Mississippi law

. . . [ and] ‘[ a] Mississippi c h ancery c o urt holds the authority to hear a case f or an accounting.’” Graham v. Franks , 2017 W L 194268, at *2 (quoting Univ. Nursing A ssocs. PLLC v . Phillips , 842 So. 2d 1 270, 1275 (Miss. 2003)). The
court also stated that “[ t ]he Suprem e Court of Mississippi has recognized

. . . that a com plaint f or discovery has discovery itself as the substantive relief sought—‘the sole object and end

1 T h is case is su b

j ect to reh earin g . 4of the bill, no r elief o ther than the discovery being pray ed.’” I d. (quoting McGowan , 542 So. 2d at 248.) T h e C o u rt o f A p p eals also ad d ressed th e issu e o f t h e retu rn o f p ro p erty , statin g “[ t] h e r e me d y s o u g h t b y an acco u n tin g is th e acco u n tin g itself ‘an d a j u d g m en t f o r th e

am o u n t f o u n d d u e u p o n th e acco u n tin g .’” Id . (citin g 1 A C

. J.S

. A cco u n t in g § 5 4 (2 0 0 5 )). ¶9. Graham v. Franks provides Kuljis no support. The d iscovery she desires is not itself the relief she seeks. It is o nly incidental to an action at l aw f or which a j u s t i c i a b l e claim already has been articula t e d i n her com plaint, and f

or which there is no jurisdiction in chancery court. ¶10. Kuljis also contends that a bill of discovery would prevent her f rom f iling a f rivolous lawsuit. However, a voidance o f Rule 11(b) sanctions d oes not provide support f o r Kuljis’s Bill of Discovery

. W inn-Dixie’s stated f ailure to respond to a letter seeking t his inf orm ation provides a sound and reasoned basis f or m aintaining a civil action and attendant discovery f or Kuljis’s claim

. T h is C ourt has reversed the use o f Ru l e 1 1 s a nctions where a plaintif f

m ade a n arguable claim and f iled a pleading in good f

a ith. Milliken & Michaels, Inc. v. Fred Netterville Lum ber Co. , 676 So. 2d 266, 270 (Miss. 1 996); McDonald’s Corp. v . Robinson Indust., Inc. , 592 So. 2d 927, 935 (Miss. 1991). F urther, the com m ent to Mississippi Rule of P rof essional Conduct 3.1 states that “ [ t]he f i ling of an action o r def

ense or sim ilar action taken f or a c lient is n ot f

r ivolous m erely because the f acts have n o t f

irst been f

ully substantiated or because the l awy er exp e c t s to develop vital evidence only b y discovery .” (Em phasis added.) K

uljis already provides a “short and plain statem ent of the claim showing

5. . . the relief to w hich [ she] deem s [ herself ] e n titled.” Miss. R. Civ. P. 8. K uljis’s com

plaint
states: Plaintif

f would s h ow that on July 2 7, 2013, Plaintif f , Cy nthia Kulj i s , w a s a guest patron at the Def

e ndant’s place of business in D’Iberville, M ississippi. Plaintif f , Cy nthia Kuljis, was walking into the store of the Def endant’s place of business when suddenly and without warning, Plaintif f t ripped over a piece of rubber sticking up, which was suppose to hold down the carpet, f a lling f a ce f irst onto the f

loor. P laintif

f would show that she has sust a i n e d s e r i ous and perm anent m e dical injuries. ¶11. The authoritative work on chancery court practice w r i tten long bef ore t he adoption of the Mississi p p i R

ules of Civil Procedure ref erences a need to exhaust other available

m eans f or obtaining the inf

o rm ation p r i o r t o f

iling a b ill of discovery

. As stated in Mississippi Chancery Practice , the relief is available w hen “it is not within the reasonable reach o f the com

plainant t o obtain [ the inf

orm ation] without t he a id o f the discovery pray ed.” V.A. Grif f ith, Mississippi C

hancery Practice § 429, 4 24 (1950). The chancellor succinctly
set out in h is order that, “in o rder f or the [ c]ourt to assum e jurisdiction, Plaintif f m ust m ake

a showing that the inf

orm ation sought cannot be obtained by other m ethods.” See also Moore v. Bell Chevrolet-Pontiac-Buick-GMC, LLC , 864 So. 2d 939, 947 (Miss. 2004). CONCLUSION ¶12. Because the chancery court did not abuse i ts discretion in determ ining t hat it lacked jurisdiction over this m a tter, we af f irm the judgm ents of t he C o u r t of Appeals and the Harrison County

Chancery

Court. ¶13. AFFIRMED.

6RANDOLPH, P.J., MAX WELL, B EAM AND CHAMBERLIN, J J., CONCUR.

DI C K I N S O N , P . J . , D I S S E N T S W I T H S E P A R A T E W R I T TEN OPINION JOINED BY KITCHENS, KING AND COLEMAN, JJ. DICKINSON, PRESIDING JUSTICE, DISSENTING: ¶14. Mississippi Rule of Civil Procedure 82(a) s tates “ [ t ]hese rules shall not be construed
to extend or lim it the jurisdiction of the courts of Mississippi.” 2 T h e m a jority ignores this rule by holding t hat som ehow the enactm ent o f the Rules o f Civil Procedure did in f act “lim it the jurisdiction” of the chancery court. Our chancery courts’ equitable jur i sdiction has included subject-m atter jurisdiction over bills of disc o v e r y

— e v e n w h e n t

he discovery related
to a m atter that ultim ately w ould be litigated in circuit court—since bef ore any justice in the

m ajority was born. 3 ¶15. It is no answer to say that “ the chancery court lacks jurisdiction over personal-injury actions.” 4 No one ha s attem pted to f ile a personal-injury action in c hancery court. The chancery court has alway s had j urisdiction over bills of discovery , regardless of where the discovery m ight suggest a suit is warranted. ¶16. To s u m i t u p , t he m ajority holds that because we a dopted the Rules, the chancery courts now lack jurisdiction over bills of discovery

. In other w ords, by claim i ng the Rules do exactly what Rule 82(a) say s they do not do, this Court r ef uses to f ollow its own rules.

2 M iss. R . C iv . P . 8 2 ( a).

3 S ee B u ck n er v. F

e rg u s o n , 4 4 M iss. 6 7 7 , 6 8 1

– 8 2 (1 8 7 0 )

. 4 M aj . O p . at ¶ 4

. 7This is t he same C o u r t t h a t sanctions lawy ers and j udges f or f ailing to f o llow the rules, so one wonders how today ’s decision contributes to conf idence in the judiciary

. ¶17. Because I believe we should f ollow the rules we a d opt—just as we expect every one else to do—I dissent. Rule 82(a), if f ollowed, ensures that t he c o m plaint of discovery

rem ains a viable action in chancery court even when t he discovery relates to a m atter which will be litigated in circuit court. ¶18. One t hing m ore needs to be said. Com plaints of discovery serve a v aluable purpose. Given attorney s ’ ethical and legal obligation to avoid f rivolous f ilings, 5 pref

iling discovery

em powers attorney s to m ake m ore inf orm ed decisions as to whether m eritorious claim exist and better equips attorney s to f u lf ill their ethical o bligations. Moreover, a ny concern that this practice will be abused is m i tigated by the chancellor’s discretion to deny u nr easonable requests. KITCHENS, KING AND COLEMAN, JJ., JOIN THIS OPINION

.

5 S ee M iss. R . C iv . P

. 1 1 ; M iss. C o d e A n n . § 1 1 -5 5

- 5 (R ev . 2 0 1 2 ). 8