IN THE SUPREME COURT OF MISSISSIPPI NO. 2017-CA-00133-SCT REGGIE ELLIOTT AND BRENDA EJIMOFOR, AS CO-ADMINISTRATOR AND CO-ADMINISTRATRIX OF THE ESTATE OF JOE ORLANDO ELLIOTT, DECEASED, ORLANDO ELLIOTT, AND FRANKIE MITCHELL, AS CO-GUARDIANS OF ORLANDREA ELLIOTT, A MINOR, MICHAEL ELLIOTT, AND ALMA ELLIOTT

v. AMERIGAS PROPANE, L.P.

DATE OF JUDGMENT: 12/14/2016 TRIAL JUDGE: HON. ANDREW K. HOW ORTH TRIAL COURT ATTORNEYS: CASEY LANGSTON LOTT DUNCAN L. LOTT JAY MARSHALL ATKINS W A RREN HORN JASON M. ZAGER MICHAEL J. TARLETON CHRISTY D. JONES ORLANDO RODRIQUEZ RICHMOND, SR MICHAEL E. McW ILLIAMS MARK ALAN DREHER HARRY CASE EMBRY KENNETH MICHAEL FITZGERALD BARBRAE A. LUNDBERG PAUL PACIFIC BLAKE BRETT ANDREW

SCHUBERT JOHN JEFFREY TROTTER BERNARD HESS BOOTH, III JESSE MITCHELL, III COURT FROM W HICH APPEALED: MARSHALL COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANTS: JAY MARSHALL ATKINS ATTORNEYS FOR APPELLEE: MICHAEL J. TARLETON W A RREN HORN NATURE OF THE CASE: CIVIL - W RONGFUL DEATHDISPOSITION: AFFIRMED - 08/02/2018

MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE WALLER, C.J., COLEMAN AND MAX W ELL, JJ. MAX WELL, JUSTICE, FOR THE COURT: ¶1. An undetected f

lam m able gas ignited and caused a n explosion a t t he Elliotts’ hom e. Because the Elliotts b elieved t he f lam m able gas was n atural gas f rom a broken m

unicipal pipeline, they

f iled suit against the city

. They also sued the chain o f vendors that supplied the c ity with natural gas a nd related products. But a f ew y ears into l itigation, the def endants began pointing to the propane gas tank in the Elliotts’ y ard. The def e ndants insisted propane g a s—not natural gas—was the source a nd cause o f the explosion. W hile t he E l l i o t t s a n d their e x perts adam antly denied that propane gas caused the explosion, the Elliotts am ended their c o m p laint, adding claim s against the propane gas vendor. They did so, not because they sought to prove p ropane gas caused the e xplosion, but to avoid the r i sk of f a ult being apportioned to a nonparty —or, as they

put it, to cut of

f an “em pty chair def ense.” ¶2. But their reason f

or joining the propane g as d ef endant is now gone. The Elliotts were able to negotiate a settlem ent with the m unicipality

. A nd sum m ary judgm ent was previously granted to all of their targets—the Natural Gas Def endants—which have all been dism issed. So the Elliotts have no need to assert an em p ty chair def ense. ¶3. The posture of

this case has placed the Elliotts in a quandary , and they now attem

pt
to change course t o pursue the propane gas def endant—the def

e n dant they adm itted they did

2not believe caused the explosion. W hile our procedural law perm i tted the Elliotts to plead

inconsistent, alternative c laim s t hat the explosion could h ave been caused by either natural
gas or propane gas, it is not their pleadings that com plicate this case. Rather, it is the decade the Elliotts s pent p ursuing only their natural gas claim s, a s suring both f ederal and state court judges that there was no m erit or evidence supporting t he propane gas t heory

. These various written and oral representations p r om pted Circuit Judge Andrew K

. Howorth to f ind the Elliotts were bound by t heir cum ulative adm issions. Judge Howorth granted the propane gas def endant sum m a ry judgm e n t, preventing the Elliotts f rom now taking an inconsistent position t o pursue the propane gas def endant. Finding no e rror in the circuit judge’s ruling, we af f irm

. B ackground Facts and Procedural History ¶4. Joe and Alm a Elliott’s Holly Springs h om e exploded on April 3, 2008

. J o e died as

a res u l t, and Alm a, h er grandson Michael, a nd her inf ant granddaughter O landrea were severely inj ured. Investigators quickly determ ined f lam m a ble gas had entered and

accum ulated in the Elliotts’ hom e. The gas was t h e n i g n i t ed, and, af ter initially starting a f ire, caused an e x p l o s i o n . The next m orning, the Holly Springs U tility Departm ent’s (HSUD) assistant superintendent investigated t he scene and noticed “bubbling in the street.” HSUD supplied natural gas to Holly Springs custom ers t h r o u g h an underground pipe network. Tests revealed a gas leak under Cuba Street, about sixty to seventy

f eet f rom the Elliotts’ h om e. And o ne of t he Elliotts’ neighbors t old investigators he had s m elled natural gas in the neighborhood “of f and on” bef

ore the explosion.

3I. The Elliotts’ Com p laint

¶5. On October 14, 2008, the Elliotts f iled suit against HSUD, who o wned and m aintained the m u nicipal g a s d i s tribution pipelines and supplied natural gas to custom e rs. They also sued El Paso Corporation, a n atural gas s upplier, and n um erous John D o e s . A s discovery progressed, the Elliotts am ended their com plaint six tim es and r eplaced John Does with

nam ed def

endants. By their f

inal am e ndm ent, the Elliotts had nam ed, in addition to HSUD

a n d El P aso, T ennessee Gas & Pipeline Com pany , the subsidiary of El Paso t hat directl y supplied natural gas to HSUD. They also nam ed Tri-State Meter and Regulator Service, Inc., which supplied HSUD with warning odorant f or i ts natural gas, and Che v r on Phillips Chem i cal Com

pany , L .P., Tri-State’s warning-odorant supplier. These com panies becam e known as the “Natural Gas Def endants.” ¶6. The Elliotts claim ed the Natural Gas D e f e n d a n t s w e r e n e g l i gent and supplied a def ective p roduct—the warning o dorant. T heir theory was that natural gas f rom the broken Cuba Street pipeline traveled through the ground to their hom e. A nd the allegedly def ective warning odorant was r em oved, or adsorbed , i n t h e process. T his caused natural gas to

accum ulate in the house without warning, leading to the explosion. ¶7. The Natural Gas Def endants denied liability

. They pointed out the Elliotts’ hom e was
not connected to a natural gas pipeline. Instead, their hom e used propane gas, supplied by

a lar g e t a n k i n their y ard. The Natural Gas Def e ndants asserted that the f ire and
exp l o sion—which originated near a propane heater i n Joe and Alm a’s bedroom —were caused by propane gas, n o t natural gas. I n response to this f i nger-pointing by the Natural Gas

4Def

endants, the E lliotts nam ed A m eriGas Propane, L.P., as a def endant, claim ing Am eriGas

was negligent and supplied a def e ctive product. B ut they d id not assert propane caused the

e xplosion. As they described it, the only reason f or n am ing Am e r iGas was t o p r e v e n t a n “em pty chair def ense.” ¶8. E v e n a f

t e r p l e a d i n g c l a i m s a g a i n s t A me r i G a s , t h e E l l i o t t s r e p e a t e d l y rep r e s e n t e d

— b o th in state and f

ederal court—that they were “not b uy ing the Natural Gas Def endants’ theory ” about propane gas. The Elliotts instead m aintained that natural gas caused the f

ire and explosion. ¶9. W h en the def

endants sought to rem ove the c ase to f ederal court af

ter Am eriGas was added as a def

endant, District Judge Michael P. Mills rem anded the case back t o Marshall County Circuit C ourt. He b ased his r e ma n d o n the Elliotts’ direct assertions to him that natural gas—not propane gas—had caused t he e xplosion. And the Elliotts represented to the judge they

would only

present evidence to that ef f ect. ¶10. Am eriGas, with t he Natural Ga s D e f e n d a n t s j oining in, had argued that when the
E l liotts m ade claim s against Am eriGas, the case h ad been so substantially a ltered t h a t i t constituted a new s u it. T hus, the thirty -day rem o val period had been revived. See 2 8 U.S.C. § 1 446. B ut the Elliotts f

ought against rem oval, representing t o the f ederal judge that their experts “ have alway s opined t hat this explosion was caused by natural gas[

. ]” The Elliotts assured Judge Mills they would not of f e r any evidence or testim ony that propane c aused the explosion and “Am eriGas knows it.” They m aintained “the addition of Am eriGas will not af f ect the proof presented by the plaintif

f s at trial.”

5¶11. Because the Elliotts adm itted they were not targeting Am eriGas, the Elliotts argued

the “sam e f

a c t u al situation” w as present a s had existed bef ore Am e riGas had been sued. Thus, the rem oval period h a d not be e n r e v i v e d

. The district judge acted on the Elliotts’ assurances and f

ound that: ¶12. Plaintif

f s’ rationale in adding Am eriGas is that their attorney simply wished to avoid the apportionment of fault to a non-party at trial

. Thus, the t arget of the Plaintif f s’ attack, by t heir own adm ission, is not AmeriGas

. Plaintif f s i ntend to present the sam e e vidence at trial as t hey had planned prior to t heir third am endm ent . . . [ the] Plaintif f s’ legal theory

of the case remains the same

. (Em phasis added.) For these reasons, Judge Mills rem anded the case to state court. ¶13. A f t e r t h e c a s e w a s r e ma n d ed, the Elliotts m ade later am endm ents, b a s e d o n subsequent deposition t estim ony , to their claim s against Am eriGas. B ut they consistently

r e p r esented to the court—both orally and in writing—that propane gas did not ca u s e t h e explosion. The Elliotts even sought to exclude evidence and expert testim ony that propane gas had caused the explosion.
II. Am eriGas’s First Sum m ary -Judgm ent Motion ¶14. Af ter rem and t o state court, Am eriGas f i led its f i rst m otion f

or sum m ary

judgm ent. It a rgued the Elliotts had judicially adm itted that propane gas did not cause the e xplosion. And even while a rguing against sum m a ry j udgm ent, the Elliotts con t i nued to insist that natural gas had caused t he explosion. The E lliotts m ade it clear they were actively try ing to undercut the propane gas theory

. 1

1 T h e E llio tts f

iled a m o t io n in lim i n e to ex clu d e ex p ert testim o n y th at p ro p an e g as h ad cau sed th e ex p lo sio n . A n d th ey asserted th at o n l y “until s uch tim e as this Court grants Plaintif f s’ f orthcom ing m otion i n lim i ne to exclude [ the Natural Gas Def endants’ experts], the natural gas Def

endants’ theory

of the case rem ains a viable one f or t he jury

to consider 6¶15. The Elliotts did not plead or argue that causation was unknown and theref o re a jury question. Instead, it is t he Elliotts’ response to Am eriGas’s f irst sum m ary -judgm e nt m otion that perhaps best portray s their view that Am eriGas was not the target of their lawsuit. As they f ram e d it: ¶16. [ The] [ d]ef

endants will present this theory to the jury as a p otential explanation f or how t his explos ion could have r esulted f rom the ignition of p ropane gas, as opposed to natural gas. If the C ourt w ould like to f ind as a m atter of law that the natural gas Def

e ndants have f

ailed t o produce any adm issible evidence that the subject e xplosion was caused by propane gas as o pposed to natural g as . . . then Plaintif

f s are happy for AmeriGas to go home

. (Em phasis added.) Still, even in light of this insistence, t he trial judge was hesitant to grant Am eriGas sum m a ry

judgm ent at that stage. So Am eriGas rem ained a def endant.
III. Am eriGas’s Second Sum m ary -Judgm ent Motion ¶17. Meanwhile, a ll the Natural Ga s D e f e n d a n t s h a d l i k e w i s e mo v e d f or sum m ary judgm ent. And Judge Howorth, wit h o n e e x c e ption, granted s u m m ary judgm ent in the Natural Gas Def

endants’ f

avor. Tri-S t a t e

— t h e sole rem a ining natural gas def endant—appealed. So did the Elliotts. ¶18. O n appeal, this Court in a unanim ous opinio n f o u n d s u mma r y j u d g me n t w a s appropriate f

or all Natural Gas Def

endants. See Elliott v. El Paso Corp. et al. , 181 So. 3d 263 (Miss. 2015). 2 It was only af ter the Elliotts’ claim s against all Natural Gas Def endants

were dism issed t h a t t h e E lliotts switched course. At that point, they b egan a f u ll-throttle

and Am eriGas m

ust rem ain at the table.”

2 P resid in g Ju stice D ick i n so n au th o red th e o p in io n , j o i n ed b y C h ief Ju stice W a l ler an d Ju stices L am ar, K itch en s, C h an d ler, P ierce, K in g an d C o lem an . P r esid in g Ju stice R a n d o lp h d id n o t p articip a te. 7pursuit against Am e riGas.

¶19. Af ter this Court’s decision in El Paso , Am eriGas f i led a second m otion f

or sum m ary judgm ent. In i t, Am eriGas asserted the Elliotts had no evidence that propane gas had caused the e xplosion. It also renewed its argum ent that the Elliotts had judicially adm itted propane gas was not the cause. T h is tim e, Judge Howorth agreed with Am eriGas. He f ound the Elliotts’ statem ents and brief s against the propane gas theory d u ring litigation had

com pounded and were judicial adm issions. ¶20. As Judge Howorth saw it: [ T]here is no question t hat the case t hat the plaintif f wants to present now was a case that was going to co me i n t h r o u g h t he back d oor. Through the def endants who a re n ot here any m o re. T hat is a f act. And that does not in and of itself m ean that h e can’t now present that case which is what he i ntends to do. But it sure is a twisted way to arrive at where we are. Judge Howorth quipped that the case “went to the Suprem e Court with [ a] heart b eat and it

cam e b ack on lif

e support. And the question f or m e is whether or not it’s m y j ob to pull the plug

. . . .” He no t e d “ f or the record that the judicial a dm issions to s o m e extent are

cum ulative and we have m ore today than we had the last tim e we were in c ourt.” Based on these adm issions and the “f actors argued b y . . . Am erigas,” he g ranted Am eriGas sum m ary judgm ent. Judge Howorth em phas i z e d his history with t he case and “hope[ d] t hat if [ this case] is looked at again the appellate court will appreciate how dif f icult t h i s is to wrestle with . . . .” 3
IV. The Present Appeal

3 Judge Howorth was highly com plim entary o f Mr. Lott, who had diligently pursued the Elliotts’ case f

or m any y e ars. 8¶21. The Elliotts now appeal to this Court. They argue Judge Howorth wrongly deem ed their various oral and written representations to state and f ederal courts judicial adm issions.
In their view, they m erely ple a d e d a l t e rnative claim s u nder Mississippi Rule of Civil Procedure 8(e)(2), and Am e riGas was not entitled to sum m ary judgm ent. T he Elliotts f urther insist Judge Howorth wrongly denied their m o tion f or a seve n t h a me nded c om plaint, deprived t hem of their constitutional right t o a j ury trial, and did not f ollow t he law of the

case. ¶22. W e review de novo a trial court’s grant or denial of su mma r y j u d g me n t

. Y oung v. Sm ith , 6 7 S o . 3 d 7 3 2, 741 ( Miss. 2011) (citing J.R. v. M alley , 62 So. 3d 902, 905 (Miss. 2011)). “Sum m ary judgm ent is proper only when no genuine i ssue of m a terial f act exists, and the m oving party is entitled to judgm ent as a m atter of law.” Owen v. Pringle , 621 So. 2d 6 6 8, 670 (Miss. 1993) ( c i t a t i o ns o m itted). To determ ine whether a m aterial f act is in dispute, “ t h e c o u r t r e v i e w s ‘ a l l a d

m i s s i o n s , a

n swers to i nterrogatories, depositions, af f idavits, and any other evidence, viewing the evidence in a l ight m ost f a vorable to the n on-m ovant.’” Id. (quoting Skelton v. Twin Cty. Rural Elec. Ass’n , 611 So. 2d 931, 935 (Miss. 1992)). Discussion ¶23. Af ter review, we f

ind the record shows the Elliotts m ade pointed a n d c o n tradictory representations about the propane gas theory in statem ents and b rief s bef ore both f ederal and
state courts, and Rule 8(e)(2) d o es not apply

. W e s ee n o error in the t rial j udge’s ruling, as his decision was not f

ocused on the Elliotts’ pleadings but rather their representations m ade af ter t he pleadings. A trial judge m ay certainly f ind oral or written representations in brief s

9or by c ounsel are judicial a dm issions. But even if that was not the case here, Am eriGas is

still entitled to sum m ary judgm ent because the E lliotts f ailed to m eet t heir burden of production, since there is no causation evidence to support claim s against Am eriGas.
I. The Elliotts’ Propane Gas Claim s ¶24. From the outset, t his Court r e c o g n i z e s t h e t r i a l judge, the Elliotts, and Am eriGas f ound them selves in a dif

f icult case, f

actually and procedurally

. Ultim a tely , Judge Howorth f ound the Elliotts’ cum

ulative judicial adm issions over nearly ten y e a rs of litigation entitled
Am eriGas to sum m ary judgm e nt. He f ound the Elliotts had a dm itted that propane gas d id

n o t cause the explosion. And with no contrary evidence, they were prohibited f ro m n o w changing positions.

A. Judicial Admissions ¶25. Judicial adm issions a re f orm al concessions in pleadings or stipulations by a party o r counsel that are binding o n the party m aking them

. Martinez v. B ally’s Louisiana, Inc. , 244 F.3d 474, 476 (5th Cir. 2001). W hile not itself evidence, a judicial adm i ssion has the ef f ect of withdrawing a f

act f rom contention. I

d. ¶26. The Elliotts i nsist they m ade no adm issions but instead m erely pleaded alterna t i ve, inconsistent theories of liability , which M ississippi Rule of Civil P rocedure 8(e)(2) perm its them to do. The Elli o tts are correct in one respect. Rule 8(e)(2) does perm it pleading alternative, inconsistent, claim s . And had Judge Howorth held against the Ellio t t s the inconsistent allegations in their am ended com plaint, t hen Rule 8(e)(2) would r equire this Court to reve r s e that ruling. See Henry v. Daytop V i llage, Inc. , 42 F.3d 89, 95 (2d Cir.

1 01994) (f

inding the c ourt m a y not h old one claim “as an a dm ission against another alternative

or inconsist e n t claim ”). But t hat is not what Judge Howorth did. His ruling did not hinge

on the inconsistent f

actual allegat ions i n the E lliotts’ am ended com plaint. Instead, his decision was based on the num erous f actual assertions that—despite what the am e n d e d

com plaint said—propane gas d id n ot cause the explosion. S ee Purgess v. Sharrock , 33 F.3d 134, 144 ( 2d Cir. 1994) (holding t hat a trial court m ay hold statem ents by an attorney or by a party in a brief as a binding judicial adm ission of f act). 4 ¶27. In other words, the reco r d b e a r s o u t t h a t t h e Elliotts never argued that either the Natural Gas Def

endants o r Am eriGas w e r e t o b lam e. Instead, f or a l m ost ten y ears they represented that only the Natural Gas Def endants were responsible. So this is sim ply not a situation covered by

Rule 8(e)(2). Rule 8(e)(2) gives no protection to a party who at every
turn discounts and attem

pts to def eat its supposed alternate theory

. See Schott Motorcycle Supply, Inc. v. Am . Honda Motor Co., Inc. , 976 F.2d 58, 61-62 (1st Cir. 1992) (holding that, because the plaintif

f ’ s f actual adm ission “was not m ade i n t he context of an alternative or hy pothetical pleading,” it was not protected by Rule 8(e)(2)). ¶28. Essentially , Judge Howorth estopped the Elliotts f rom taking a com

pletely opposite position t han the one they repeatedly took throughout the course of litigation—an action he

was authorized t o t ake. See Rankin v. Am . G e n . Fin., Inc. , 912 S o . 2 d 7 2 5 , 7 2 8 (Miss. 2005) (af f irm ing the trial court’s ruling that a pla i n t i f f was estopped f

rom raising in state

4 See a lso City Nat’l B a n k v . U nited States , 9 07 F.2d 536, 544 ( 5th C ir. 1990) (statem ents of f

act in brief

s, particularly sum m a ry judgm ent brief s, m a y be t reated as binding judicial adm issions); United S tates v. McKeon , 738 F .2d 26, 30 (2d C ir. 1 984) ( a statem ent by an attorney

m ay be adm issible against his or her client). 1 1court claim s that had been abandoned in f ederal court f

or the purpose o f having the case

rem anded). He recognized that it was a “f a ct” that they were now try ing to push a claim “through the back door”—a c laim they had asserted solely to prevent an “ e mp t y c h a i r def ense” against def

endants who were no longer present. ¶2 9

. T h e r eco rd b ack s u p h is p o sitio n . Despite their am ended com plaints, the Elliotts had consistently represented in both state and f e deral court that Am eriGas was n ever the target of their l awsuit because there was no evidence that propane gas was the culprit. 5 The record

s h o w s t heir representation to t he f ederal judge that they did not intend to target Am eriGas gained t hem a rem and to circuit court. Cf. id. at 729 (noti n g t h e plaintif f s had secured

rem and by “ s u c c e s s f

u l ly , unequivocally , and repeatedly assert[ ing] t o the f ederal district court” that their claim s w ere not based on f ederal law). And af

ter rem and, the Elliotts f

urther represented to Judge H oworth, during Am eriGas’s f irst m o tion f

or sum m ary judgm ent, that the propane gas theory was m erely an unsubstantiated d ef ense theory

. It was only i n def ense of the second m otion f

or sum m ary judgm ent that the E lliotts changed course and a r gued they intended to pursue t he t heory that propane gas h ad caused t he explosion. But by this point, Judge Howorth f

o und the Elliotts could not reverse course. See id. at 728. ¶30. Because w e c a n discern no legal or f actual error with his decision, we af f irm

. But still, we em

phasi z e that our legal sy stem perm its f l exibility —even inconsistency

—in pursing

5 A prim e e xam

ple f rom the record is the Elliotts’ response to Am eriGas’s f irst m otion f or sum m ary judgm ent. T he Elliotts very clearly explain, while attem pting to def

end against sum m ary judgm ent, that they “have c onsistently m aintained that the explosion was caused by natural gas” a nd that evidence propane g as caused the explosion “is com p letely illogical and inconsistent with the f orensic evidence available to every one in this case.”

1 2a theory of l iability or trial s trategy

. But as Judge H oworth essentially f ound, t here com es

a tim e when a party reaches a point of no return—when it h as s o thoroughly and consistently

com m itted itself to a position that it cannot now turn back. And we cannot say that he was wrong to hold the Elliot t s t o the consequences of their cum u lative f a ctual assertions and representations undercutting the propane gas t heory and keeping them f rom c ha n ging course. B. Burden of Production ¶31. Even absent judicial a dm issions, there is y et another reason that m andates w e af f irm on de novo review—the Elliotts have not m et their burden of production. ¶32. W h ile, as the sum m ary -judgm ent m ovant, Am eriGas m u st show n o genuine m aterial f act issues exist, the Elliotts m ust m ake a showing too. B ecause they bear the burden at trial
to prove every essential e lem ent of their case, they bear t he burden at the sum m ary -judgm ent stage to produce evidence e stablishing each elem ent. See Karpinsky v. Am . Nat’l Ins. Co. , 109 So. 3 d 84, 88-89 (Miss. 2013). And b y t h e i r o w n a dm ission, they cannot m eet this burden. ¶33. Specif

i cally , t he Elliotts them selves asserted there was no evidence that propane gas caused the explosion. For negligence claim s, “‘[ i]t is not e nough tha t negligence of one pers o n a n d i n

j u r y to another coexisted, b ut the injury m ust have been caused by the

n e g l i g e n c e .’” Herrington v . Leaf River Forest Prods., Inc. , 733 So. 2d 774, 779 (Miss. 1999) ( quoting Kram e r Serv., Inc. v. Wilkins , 1 84 Miss. 483, 497, 186 So. 625, 627 (1939)). And f or products-liability claim s, causation m ay be proven t hrough circum stantial e vidence, but a plaintif

f m ust still prove proxim ate cause. See Mine Safety Appliance C o. v. Holm es ,

1 3171 So. 3d 4 42, 450-51 (Miss. 2 015); Sm ith v. Union Carbide C orp. , 1 30 So. 3d 6 6, 70-71 (Miss. 2013). ¶34. H e r e , the causation e xpert w itnesses originally designated by the Elliotts “ h a v e a l w a y s opined t hat this e xplosion was caused by natural gas.” And the Elliotts argued the Natural Gas Def endants’ expert witnesses—cross-designated by them to testif y that propane gas was the cause—were “not qualif ied to testif

y ” on theories of causation or should testif y only on theories of causa t i o n that were “tested b y apply ing accepted m e thods of t esting and observation, n ot those based on pure speculation.” In other words, theyinsisted the crossdesignated experts should testif y only a bout t heir i nitial f

indings and conclusions that natural
gas was the cause. It was f or this reas o n the Elliotts m oved to exclude expert-witness testim o ny or lim it their cross-designated experts to testim ony t hat natural gas—not propane gas—was the cause. ¶35. So even absent judicial adm issions, without causation evidence, sum m ary judgm ent

was appropriate. The Elliotts, as “ the non-m oving party [ , ] [ have] f ailed to m a ke a showing suf f i cient to establish the existence of an elem ent essential to the party ’s case, and on which [ they ] will bear t he burden of proof at trial.” K arpinsky , 109 S o. 3d at 89 (citation om itted). ¶36. This Cour t “ ma y a f f i rm the lower c ourt’s grant of sum m ary judgm ent on grounds other than that which the trial court used.” K irksey v. Dye , 564 So. 2d 1333, 1 336 (Miss. 1990) (citation om itted). W hil e Judge Howorth granted sum m ary judgm ent s pecif ically citing judicial adm issions—and the awkward posture of nam ing a def endant only to prevent

an em pty c hair def

ense—Am eriGas had also argued the Elliotts lacked causation evidence

1 4and had f

ailed to m eet their burden of production. Af

ter review, we f

ind this is also true.
II. Motion for Seventh Am ended Com plaint ¶37. The g rant o f sum m a ry judgm ent is not the o nly decision the E lliotts challenge. Af ter
t his Court in El P

a so held sum m ary judgm ent was appropriate f or all the Natur a l G a s Def endants, the Elliotts, at a subsequent hearing b e f o r e t h e trial judge, verbally m oved to

am end t heir com

plaint a seventh tim e. W i thout ruling on thei r m otion, Judge Howorth instead g ranted Am eriGas’s second m otion f or sum m ary judgm ent. The Elliotts c laim this f ailure to rule was reversible error. W e disagree. ¶38. S ince Am eriGas was the last re ma i n i n g d e f e n d a n t , the grant of their m otion f or

sum m ary judgm ent contained an implicit d e n ial of all outstanding m otions. S ee Lucas v. Baptist Mem ’l Hosp.-N. Miss, Inc. , 9 97 So. 2d 226, 2 31 (Miss. Ct. App. 2 008); s e e a lso Tollett v. City o

f Kem ah , 285 F.3d 357, 3 69 n .* (5th Cir. 2002). Decisions to grant or deny “[ m ]otions f

or leave to am end com

plaint[ s] are lef

t to the sound discretion of the trial court.” Moeller v . Am . Guar. & Liab. I

n s. Co. , 812 So. 2d 953, 961 (Miss. 2002) (quoting Preferred Risk Mut. Ins. Co. v. Johnson , 730 So. 2d 574, 579 (Miss. 1998), overru l e d o n o ther grounds ). Absent an abuse of discretion, this Court will not reverse such a decision. Id. ¶39. M i s s i s s i p p i R u l e o f C i v i l Procedure 15(a) governs m otions t o am end. W e have liberally c onstrued t he language that “leave [ to am e n d] shall be f reely given when justice so requires” to suggest that, unless actual prejudice would result to the o pposing party , leave to

am end should be g ranted. Id. (quoting Estes v. Starnes , 732 So. 2d 251, 2 52 (Miss. 1999)). The Elliotts suggest, without a f inding f r om the trial court that Am eriGas would suf f er actual

1 5prejudice, the judge abused his discretion by im plicitly deny ing their m otion to am end. ¶40. B u t w h a t t he E lliotts are s eeking i s not an am endm ent t o their com plaint. As they

m aintain in their a

ppellate brief

, the proposed a m ended com p laint “would not have altered the a llegations against Am e riGas whatsoever.” Instead, “it would h ave m erely rem oved the alternative t h e o r y o f causation against the Natural Gas Def endants.” In o ther words, the Elliotts are asking the trial court to rem ove claim s t hat t his Court has a lready ruled f ail a s a

m atter of law. They

are not adding any

thing to their com

plaint. ¶41. Bey ond that, the E l l i o t t s h ave am ended their com plaint six tim e s . Three of those

am endm ents cam e a f

ter Am eriGas was nam ed to prevent a n “em pty c hair def

ense.” And this

m ost recent m otion t o am end t he com pl a i n t com es m ore than three y ears af ter the sixth

am ended com

p laint was f

iled on June 24, 2013. ¶42. W e s e e n o a b u s e of discretion here. W h at t he Elliotts are asking f or is not truly

a

m otion to am end their com plaint—certainly

not as c o ntem

plated by Rule 15. And, even if the Elliotts’ m otion is treated as their seeking to a m end their com plaint, they occupy no dif f erent position now than if the m otion had been granted. The claim s they a re seeking to

rem ove have already been adjudged insuf f icient as a m atter of

law.
III. Right to a Jury Trial ¶43. The E lliotts next argue that by dism i ssing t h e i r c l a i ms a g a i n s t A m eriGas, Judge Howorth v iolated their constitutional right to a jury t rial. Both the United States Constitution and Mississippi Constitution establish the right to t rial by jury

. U .S. Const. am end. VII; Miss. Const. art. 3, § 31. But to exercise this right, there m ust b e a f actual dispute requiring

1 6a j ury trial. The law is well-settled on this point. Indeed, the United States Suprem e Court

has held tha t “ t o p reserve the court f rom f rivolous def

enses, and t o def

e at attem pts to use f orm al pleading as a m eans to delay the recovery o f j u s t dem ands,” rules f or sum m ary judgm ent are necessary and d o not violate the Seventh Am endm ent. F id. & Deposit Co. of Maryland v. U

.S. , 1 8 7 U.S. 315, 320, 23 S. Ct. 120, 122, 47 L. Ed

. 1 9 4 ( 1 9 0 2 ) ; see also Parklane Hosiery Co., Inc. v . S hore , 439 U.S. 322, 336, 9 9 S. Ct. 645, 654, 58 L. Ed. 2d 552 ( 1 9 7 9 ) ( m any p rocedures developed since 1791 have dim inished the c ivil jury ’s historic dom ain while also being consistent with the Seventh Am endm ent). ¶44. In other words, “ [ n]o constitutional r ight to a [ jury ] trial exists” where a party f ails to show t hat “som e dispute of m aterial f act e x ists w h ich a trial could resolve.” Oglesby v. T e r m i n a l Transp. Co., Inc. , 543 F.2d 1 111, 1113 (5th Cir. 1976). T his Court si mi l a r l y interprets the Mississippi Constitution. T he r ight to a jury trial is not violated when the party

m oving f or sum m ary judgm ent is entitled to a judgm ent by law. Towner v. Moore , 604 So. 2d 1093, 1098 (Miss. 1992). ¶45. B e cause the Elliotts lack a triable c ase, and Am eriGas is e ntitled to jud g m e n t a s a

m atter of law, the t rial judge did not violate t he Elliotts’ right t o a j u r y t r i al by granting

sum m ary judgm ent. IV. Law of the Case ¶46. Lastly , the Elliotts suggest the judge ignored the l aw-of -the-case doctrine. They

insist that b e c a u s e both the state and f ederal trial courts previously ruled against Am eriGas’s judicial-adm issions argum ents, those rulings becam e the law of the case. This is not so. The

1 7law-of

-the-case doctrine requires a dispositive, f inal ruling on a q

ues t i o n o f l aw. See Holland v. Peoples Bank & Trust Co. , 3 So. 3 d 94, 104 (Miss. 2008). Every case cited by the Elliotts involved an appeal, a ruling and rem and by this Court, and a subsequent appeal involving the sam e or s im ilar legal question. See Fortune v . Lee Cty. B d. of Supervisors , 725 S o . 2 d 7 4 7 (Miss. 1998); Sim pson v. State Farm Fire & Cas. Co. , 564 So. 2d 1374 (Miss. 1990); and Woolridge v. Woolridge , 856 So. 2d 4 46 (Miss. Ct. A pp. 2003). That is
not what happened h e re. The f ederal judge ruled on the Elliotts’ m o tion to rem and the case, addressing only whether the tim e f or rem o val under U n i t ed S tates Code Title 28, Section 1446, had been r evived w hen Am eriGas was added as a def e ndant. The record contains no ruling by t he f

ederal c ourt o n the m erits of any judicial adm ission argum ent. 6 And while the
state c i rcuit judge denied Am e riGas’s f irst m otion f

or sum m ary j udgm ent, he was at liberty to revisit and change his ruling. “An order d eny ing sum m ary judgm ent i s neither f inal nor binding upon the c ourt or successor courts.” Holland , 3 S o. 3d a t 104 (quoting Mauck v. Colum bus Hotel Co. , 741 So. 2d 2 59, 268 ( Miss. 1999)). And the law-of -the-case doctrine “has no app l i c a b ility where the order or judgm ent is not of a f inal character.” Id. (citing Mauck , 741 So. 2d at 268). ¶47. B e c a u s e t h e o r d e r deny ing Am eriGas’s f irst m otion f

or s um m ary judgm ent w a s neither f inal nor binding on the trial court, it was well within Judge Howorth’s a u thority to

6 E v en if th e f

ed e ral trial co u rt h ad d en ied a m o tio n f o r su m m ary j u d g m e n t b ased o n j u d i cial ad m issio n s, th at d ecisio n w o u ld n o t b e a f in al j u d g m e n t an d t h eref

o re n o t su b

j ect to t h e law -o f

- t h e - c a s e d o ctrin e. S

ee Z a rn o w v . C ity o f W ich ita F a lls , 6 1 4 F .3 d 1 6 1 , 1 7 1 (5 th C ir. 2 0 1 0 ). C

f. L ib erty M

u t . In s. C o . v. W etzel , 4 2 4 U

. S

. 7 3 7 , 7 4 4 , 9 6 S

. C t. 1 2 0 2 , 1 2 0 6 -0 7 , 4 7 L

. E d

. 2 d 4 3 5 (1 9 7 6 ) (a su m m ary j u d g m en t ru lin g t h at leav es issu es o r claim s u n reso l v ed h as n ev er b een co n sid ered a “f i n al j u d g m en t” u n d er 2 8 U .S .C . § 1 2 9 1 ). 1 8revisit the issue and change his ruling. So the law-of -the-case doctrine does not apply

. Conclusion ¶48. For nearly a decade the Elliott s p u r s u e d t h e Natural Gas Def endants, consistently under c u t t i ng the propane gas theory and related claim s. T he c i rcuit judge f ound their adm issions were c um

ulative, and they were just too f ar down tha t r o a d to turn b ack now. The E l l i o t t s ’ contradictory assertions are not alternative, inconsistent claim s protected by Rule 8(e)(2), and could be deem ed judicial adm i ssions or grounds f or estoppel. Finding no error in those rulings, and f inding the Elliotts also f

ailed in t heir burden o f production, this Court af f i rm s sum m ary

judgm ent in Am eriGas’s f a vor. ¶49. AFFIRMED.
W A L L E R , C . J . , KITCHENS, P . J . , K I N G , C O L E M A N , B E A M , C H A M B E R L I N AND ISHEE, JJ., CONCUR. RANDOLPH, P.J., NOT PARTICIPATING.

1 9