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Burnham v. Stevens

February 09, 1999

JOHN L. BURNHAM AND CAROL A. BURNHAM, APPELLANTS INDIVIDUALLY AND ON BEHALF OF THEIR MINOR DAUGHTER, SERA ELIZABETH BURNHAM
v.
LARRY STEVENS APPELLEE



The opinion of the court was delivered by: Coleman, J.

DATE OF JUDGMENT: 09/26/96

TRIAL JUDGE: HON. C. E. MORGAN III

COURT FROM WHICH APPEALED: ATTALA COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - PERSONAL INJURY

TRIAL COURT DISPOSITION: VERDICT IN FAVOR OF LARRY STEVENS.

DISPOSITION: AFFIRMED - 2/9/99

MOTION FOR REHEARING FILED:

CERTIORARI FILED:

MANDATE ISSUED:

EN BANC:

¶1. Appellants, John L. Burnham and Carol A. Burnham, individually and on behalf of their minor daughter, Sera Elizabeth Burnham, appeal from the judgment of the Circuit Court of Attala County for the appellee, Larry Stevens, the defendant in the trial court. The Burnhams had filed a complaint against the City of Kosciusko School System, the City of Kosciusko School Board, Dr. David Sistrunk, superintendent of the Kosciusko School System, Larry Stevens, the principal of the Upper Elementary School in the Kosciusko Separate School District, Cindy Heilbronner, Carolyn Collins, Linda Crowe, and John Does 1-10. The Burnhams sought to recover damages for injuries to Sera Burnham caused by Stevens's excessive force when he administered three licks with a paddle to Sera to punish her failure to turn in a ten-page report which Stevens had assigned the previous day as a disciplinary matter. The Burnhams also charged "upon information and belief, defendants made false reports of child abuse against Plaintiff John Burnham." In their appeal, the Burnhams present for our review and resolution the following four issues, which we quote verbatim from their appellate brief:

1). DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY NOT DISQUALIFYING HIMSELF FROM THE CAUSE, AFTER A MOTION TO RECUSE WAS FILED BY THE PLAINTIFFS?

2) DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY REFUSING TO ADMIT CERTAIN EVIDENCE AND TESTIMONY PURSUANT TO THE PUBLIC RECORDS EXCEPTION OF M.R.E. 803(8)(C)?

3) DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY SEVERING THE TRIALS OF THE SEPARATE DEFENDANTS, WHEN BOTH DEFENDANTS WERE CONCURRENT PROXIMATE CAUSES OF THE PLAINTIFFS EMOTIONAL INJURIES?

4) DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY REPEATEDLY OVERRULING OBJECTIONS TO HEARSAY AND OPINION TESTIMONY FROM A LAY WITNESS?

We resolve these issues adversely to the Burnhams and affirm the trial court's judgment for Stevens.

I. FACTS

¶2. Our recitation of the facts reflects the evidence which appears to support the jury's verdict for Larry Stevens. On Monday, February 28, 1994, Carol Burnham, Sera's mother, attended a conference with Cynthia Roby Heilbronner, a fifth-grade teacher at Kosciusko Upper Elementary School and Linda Crowe. Larry Stevens, the principal of Upper Elementary, joined the conference "as soon as he was relieved of outside duty." Sera, who was a student in the fifth grade at Upper Elementary, was the subject of this conference. Ms. Burnham asked Ms. Heilbronner, Ms. Crowe, and Stevens to help her daughter Sera "deal with the problems at school," and she gave Stevens permission to paddle Sera, "if she needed paddling."

¶3. The next day, March 1, at an unspecified hour, Sera Burnham and her classmates, among whom was Lynn Lee, entered Ms. Heilbronner's classroom "after break." The members of this fifth-grade class were "just pushing and scuffling with each other" creating a lot of noise, and one child was crying. Ms. Heilbronner heard Lynn Lee say, "She has called me `a nappy haired white trash,' and I cannot take that anymore." Lee was referring to Sera Burnham. Sera admitted to Ms. Heilbronner that she had called Lynn Lee that name. Ms. Heilbronner instructed Sera to take her seat in the classroom, but Sera refused. Ms. Heilbronner instructed her classroom assistant, Carolyn Collins, to take Sera to Stevens's office because Ms. Heilbronner was anxious to begin the instruction to prepare her students to take the Stanford Achievement Tests.

¶4. When Ms. Collins and Sera arrived in the principal's office, Stevens asked Sera if she had called Lynn Lee "a nappy headed poor white trash," and Sera replied, "Yes, I did." Stevens then assigned Sera a ten-page report, which Sera was to copy "from whatever chapter she was studying at the time in social studies." Stevens told Sera that she must bring the completed report to him the next morning. Stevens warned Sera that if she did not have the report finished and delivered to him by the next morning, he "would give her a spanking which would be three licks."

¶5. The next morning, when Sera returned to school, she encountered Ms. Collins, who inquired if she had finished her ten-page report for Mr. Stevens. When Sera replied, "No," Ms. Collins began to escort her to Stevens's office. As Ms. Collins and Sera approached Stevens's office, they encountered Ms. Heilbronner, who was walking toward the principal's office to check her mailbox. When Ms. Collins told Ms. Heilbronner that Sera had not done her report, Ms. Heilbronner replied, "Okay, well, let's just go see Mr. Stevens."

¶6. Inside Mr. Stevens's office, Mr. Stevens inquired of Sera whether she had completed her report, to which Sera replied that she had not. When Sera told Mr. Stevens that she had not done any of the report, Stevens instructed Sera "to hold the table," and he administered the three licks with a paddle to Sera's buttocks. The paddling occurred shortly before 8:00 o'clock. After Stevens paddled Sera, she returned to her class and remained in school for the rest of that day.

¶7. That evening at home, Sera sat on the couch beside her mother. When she sat down, Sera, according to Ms. Burnham's testimony, "just leapt back up off the couch . . . ." Sera told her mother that "she had got a paddling at school." When Ms. Burnham examined Sera's buttocks, she found "three marks where [Sera] was hit with that board [which] were very clear, very plain, very swollen, and very red." Ms. Burnham awakened Mr. Burnham, and they took Sera to the Montfort Jones Hospital in Kosciusko. There, an emergency room physician, Dr. Edward E. Bryant, examined Sera. Dr. Bryant prescribed the application of ice packs to Sera's buttocks and advised Sera's parents to give Sera Advil for the pain. While the Burnhams were at the hospital, some Kosciusko police officers came and took pictures of Sera's buttocks.

¶8. Sera refused to return to the Upper Elementary School the next day. The Burnhams investigated the possibilities of enrolling Sera either in the Attala County Public School System or French Camp Academy, a private school located northeast of Kosciusko on the Attala-Choctaw County line. Instead, they enrolled Sera in East Holmes Academy, a private school. Sera finished the academic year at East Holmes, and she repeated the fifth grade there the following year. By the time this case was tried, the Burnhams had moved to Jackson, Tennessee, where Ms. Burnham's sister lived.

¶9. Shortly after these events, the Department of Human Services (DHS) investigated Stevens's paddling of Sera. Ms. Billie Sims, the Regional Director for DHS, Family and Children's Services, wrote Dr. Sistrunk, the superintendent of the Kosciusko Separate Municipal School District a letter in which she advised that the DHS investigation had substantiated physical abuse of Sera by Stevens. On May 6, 1994, Dr. Sistrunk filed a report of John Burnham's abuse of his daughter Sera with DHS.

II. LITIGATION

¶10. On Friday, September 6, 1996, before the trial of this case began on Wednesday, September 18, 1996, the trial court conducted a hearing on the several defendants' motion to dismiss them from this lawsuit and the Burnhams' motion that the trial Judge recuse himself. The trial court dismissed all of the defendants except Dr. Sistrunk and Stevens, and he denied the Burnhams' motion for recusal. During the course of this hearing, there arose the issue of whether the Burnhams' claims against the two remaining defendants, Stevens and Dr. Sistrunk, ought to be severed. The trial court severed their trials, and ultimately the Burnhams elected to try first their claim against Stevens.

¶11. On September 18, 1996, the day this trial began, Stevens filed a motion in limine. Among the subjects of this motion was the letter from Ms. Sims to Dr. Sistrunk in which she reported the result of the DHS investigation of Sera's paddling. *fn1 After the jury had been empaneled, the trial Judge considered Stevens's argument in support of his motion in limine away from the jury's presence. Stevens's apparent concern was that the Burnhams' counsel would mention the DHS investigation during her opening statement. The trial Judge prohibited the Burnhams' counsel from mentioning the investigation during her opening statement but stated, "We will see about the admissibility [of the investigation's result] down the road."

¶12. When trial began all three Burnhams testified, and they called other witnesses who testified about their observations of the injuries to Sera's buttocks. Ms. Sims was called as the Burnhams' next-to-last witness. Before Ms. Sims began to testify, the trial Judge recessed the trial and excused the jury from the courtroom. In the jury's absence, Stevens moved to exclude Ms. Sims's testimony "in its entirety." On the Judge's suggestion, the parties and he retired to his chambers so that counsel for Stevens and the Burnhams might argue that motion.

¶13. Aware that the Burnhams relied on Rule 803(8) of the Mississippi Rules of Evidence *fn2 to establish the admissibility of Ms. Sims's letter to Dr. Sistrunk, Stevens's counsel cited the following portion of the comment to Rule 803(8): "Opinions and Conclusions contained in such reports should be excluded." The Judge resolved the matter by reiterating that Ms. Sims could testify about facts she personally knew about Stevens's paddling Sera Burnham, but she could not give hearsay testimony regarding the result of DHS's investigation as she conveyed it to Dr. Sistrunk unless the Burnhams could qualify Ms. Sims as an expert who might then rely on the statements of others to support her own Conclusion that the investigation substantiated Stevens's physical abuse of Sera Burnham. Stevens objected to any effort by the Burnhams to qualify Ms. Sims as an expert because the Burnhams had not provided her name as an expert whom they expected to call during discovery.

¶14. Regardless of the Judge's resolution of Stevens's motion to strike Ms. Sims's testimony entirely, the Burnhams called Ms. Sims to testify about DHS's investigation. Over Stevens's objection, the trial Judge permitted Ms. Sims to testify that an investigation had been conducted and that it had been completed. However, when the Burnhams' counsel asked about the investigation of Stevens's paddling Sera Burnham, Stevens objected "on the grounds that this is irrelevant to the issues of this case. It is highly prejudicial to the Defendant." Based on this objection and his earlier ruling on Stevens's motion to strike Ms. Sims's testimony entirely, the trial Judge barred the Burnhams' counsel from eliciting further information from Ms. Sims about the DHS investigation and its results.

ΒΆ15. The trial court denied Stevens's motion for directed verdict which he made after the Burnhams rested late in the afternoon of the first day of the trial. The next morning before Stevens called Dr. Edward E. Bryant, the emergency room physician who examined Sera Burnham at the Montfort Jones Hospital in Kosciusko, the Burnhams' counsel moved the Judge to reconsider the admissibility of Ms. Sims's letter to Dr. Sistrunk. Beech Aircraft Corp. v. Rainey, 488 U.S. 439 (1988), which we will subsequently consider, was the basis for the Burnhams' motion to reconsider. The trial Judge opined, "The Beech case also interprets the Federal Rules of Evidence. We are under the Mississippi Rules of Evidence. And while they [the Mississippi Rules of Evidence] may have been based on that [the Federal Rules of Evidence] when they were drawn, the comments under our Rule are different." The Judge then opined that "the comment under 803(8) is clear as to what can be admitted and can't be, and it says, `Opinions and Conclusions contained in such reports should be excluded.'" He added that it was "a discretionary matter with [him] as to whether ...


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