Chaka D. Smith v. Charles E. Webster , 233 So. 3d 242 ( 2017 )


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  •                     IN THE SUPREME COURT OF MISSISSIPPI
    NO. 2015-EC-01562-SCT
    CHAKA D. SMITH
    v.
    CHARLES E. WEBSTER
    DATE OF JUDGMENT:                           09/16/2015
    TRIAL JUDGE:                                HON. M. JAMES CHANEY, JR.
    TRIAL COURT ATTORNEYS:                      ELLIS TURNAGE
    CHARLES E. WEBSTER
    BENJAMIN E. GRIFFITH
    COURT FROM WHICH APPEALED:                  QUITMAN COUNTY CIRCUIT COURT
    ATTORNEY FOR APPELLANT:                     ELLIS TURNAGE
    ATTORNEY FOR APPELLEE:                      CHARLES E. WEBSTER (PRO SE)
    NATURE OF THE CASE:                         CIVIL - ELECTION CONTEST
    DISPOSITION:                                AFFIRMED - 05/25/2017
    MOTION FOR REHEARING FILED:
    MANDATE ISSUED:
    BEFORE RANDOLPH, P.J., KITCHENS AND CHAMBERLIN, JJ.
    CHAMBERLIN, JUSTICE, FOR THE COURT:
    ¶1.    This election contest arises from a November 4, 2014, general election for the circuit
    judge seat in Mississippi’s eleventh circuit district, subdistrict 3 (“subdistrict 11-3 ”). The
    special judge granted Charles Webster’s motion for summary judgment, finding no genuine
    issue of material fact existed regarding which candidate received the most votes in the
    election. Aggrieved, Chaka Smith appealed. We affirm the trial judge’s grant of summary
    judgment in favor of Webster.
    FACTS AND PROCEDURE
    ¶2.    On November 4, 2014, a general election was held for the subdistrict 11-3 circuit
    judge seat. Subdistrict 11-3 encompasses all voting precincts in Tunica County, as well as
    certain statutorily designated voting precincts in both Coahoma and Quitman Counties. Both
    Webster and Smith sought the subdistrict 11-3 seat and, according to the final certifications,
    Webster won the election by 886 votes. Webster received 3,255 votes, whereas Smith
    received 2,369 votes. Of the total votes cast, 390 were cast by absentee ballot. Webster
    received 296 of the absentee ballots and Smith received the remaining 94.
    ¶3.    After the election had been certified, Smith conducted statutory examinations of the
    ballot boxes pursuant to Mississippi Code Section 23-15-911(1).1 During the examinations,
    Smith requested to photocopy or scan the contents of the ballot boxes. The Coahoma,
    Quitman, and Tunica County circuit clerks denied these requests.
    ¶4.    On November 24, 2014, Smith filed a petition in the Quitman County Circuit Court
    seeking both declaratory relief and to contest the election.2 Smith sought declaratory relief
    as to whether a candidate “has a legal right to make photocopies of election documents prior
    to filing an election contest” during a ballot-box examination under Section 23-15-911(1).
    1
    In pertinent part, the statute states:
    . . . At any time within twelve (12) days after the canvass and examination of
    the box and its contents by the election commission or executive committee,
    as the case may be, any candidate or his representative authorized in writing
    by him shall have the right of full examination of said box . . . .
    
    Miss. Code Ann. § 23-15-911
    (1) (Rev. 2015).
    2
    Smith filed an amended petition on June 29, 2015, adding a ninth cause of action.
    2
    Smith further alleged that this Court’s order adopting the Mississippi Rules of Civil
    Procedure created unconstitutional power-sharing between the judicial and legislative
    branches.
    ¶5.    Smith also contested the election, alleging violations of elections laws and procedures
    by election officials during the November 4 election. One of the violations alleged by Smith
    was that most of the absentee ballot applications and envelopes were in violation of statutory
    provisions and were commingled to the extent that illegal absentee ballots could not be
    separated from legal absentee ballots. Webster filed his answer and affirmative defenses, and
    Special Circuit Judge M. James Chaney Jr. was designated to hear the contest.
    ¶6.    On January 22, 2015, pursuant to Mississippi Rule of Civil Procedure 34, Smith filed
    a motion for authority to examine, inspect, and photocopy the contents of ballot boxes used
    in the subdistrict 11-3 election. Judge Chaney held a hearing and ultimately denied the
    motion. The special judge concluded that Section 23-15-911(1) does not allow making copies
    of the ballot-box contents. Further, Judge Chaney stated that Rule 81 limits the application
    of the Rules of Civil Procedure in election contests and that, even if the rules did apply, Rule
    34 had no application to Smith’s request.3
    ¶7.    At the hearing, however, Judge Chaney gave Smith fifteen days to submit a list of
    specific documents from the ballot boxes that she wanted to copy. The trial judge reiterated
    that only documents pertaining to specific voters should be requested. The special judge also
    allowed Webster to file objections to Smith’s list. Smith submitted her list of documents,
    3
    Smith filed a petition for interlocutory review of Judge Chaney’s order that Smith
    had no right to copy contents of the ballot box, which a panel of this Court denied.
    3
    Webster filed his objections, and the trial judge held another hearing on the matter.
    ¶8.       Brenda Wiggs, circuit clerk of Quitman County, and Charles Oaks, circuit clerk of
    Coahoma County, testified at the hearing. Wiggs and Oaks testified that the vast majority of
    documents requested by Smith were either: (1) not located in the ballot boxes or (2) not
    applicable because their counties used direct-recording electronic voting equipment.4 Many
    of Smith’s requests asked for documents applicable only in elections using optical mark
    reading equipment.5 After hearing arguments, Judge Chaney sustained Webster’s objections
    to the documents that were not located in the ballot box or that were inapplicable to the
    election. As to the items requested that were located in the ballot box, Judge Chaney
    determined that Smith’s request did not comply with the specificity requirement that he
    previously had ordered. Smith’s request sought “each” absentee ballot application and “each”
    absentee envelope rather than requesting the absentee ballots and envelopes of specific
    voters.
    ¶9.       Later in the pretrial proceedings, Smith designated William Cooper and Talbot Brooks
    as “geocoding” experts.6 In his declaration, Cooper claimed that his geocoding analysis
    4
    “‘Direct recording electronic voting equipment’ means a computer driven unit for
    casting and counting votes on which an elector touches a video screen or a button adjacent
    to a video screen to cast his or her vote.” 
    Miss. Code Ann. § 23-15-531
    (b) (Rev. 2015).
    5
    “‘Optical mark reading equipment (OMR)’ means any apparatus necessary to
    automatically examine and count votes as designated on paper ballots.” 
    Miss. Code Ann. § 23-15-303
    (b) (Rev. 2015).
    6
    According to Cooper’s declaration, “[g]eocoding is an automated geographic
    information system (GIS) software method that locates addresses by longitude and latitude.
    Once geographic points for a list of addresses are determined by the software, the address
    points can then be displayed as an overlay on a computer map with additional geographic
    4
    revealed that 1,385 registered voters in Coahoma and Quitman Counties were assigned to the
    wrong subdistrict.7 Therefore, Smith alleged that nonresidents of subdistrict 11-3 were able
    to vote in the November 4 election, while many residents of the subdistrict were “left off of
    the pollbooks” and therefore unable to vote in the election. As shown in Smith’s First
    Amended Petition, Smith asserted that 600 persons improperly cast their ballots in the
    election or were unable to vote in the election due to misassignment. On April 22, 2015,
    Webster filed a motion to disallow Smith’s expert witnesses, arguing that the experts’
    findings were not relevant and/or not reliable.
    ¶10.   The trial judge granted Webster’s motion. Judge Chaney found that Brooks had
    provided no “investigation, report or opinion relevant to th[e] election contest.”8 The special
    judge also found that Cooper’s geocoding analysis was based solely on Excel files he
    received from Smith.9 No certification from the circuit clerks, however, was provided to
    indicate that Cooper relied upon accurate data or maps in calculating his results. Therefore,
    Judge Chaney determined that Cooper’s findings were not reliable.
    layers.”
    7
    Of the 1,385 registered voters, 939 were from Coahoma County and 446 were from
    Quitman County. Cooper also noted that “because the Coahoma registered voter list [he]
    received contain[ed] only mailing addresses, there [were] about 3,250 P.O. Box addresses”
    that he could not geocode, which could increase the 939 total from Coahoma.
    8
    The record is in fact void of any opinion given by Brooks. All the record contains
    concerning Brooks is a copy of his resume.
    9
    Cooper’s declaration states that “Mr. Turnage [who is Smith’s lawyer] provided me
    with Microsoft Excel files of registered voters in both counties. It is my understanding that
    the Excel files were prepared by the offices of the Circuit Clerk in the respective counties.
    Both Excel files identified all voters by [Circuit Clerk] subdistrict.”
    5
    ¶11.   On August 28, 2015, Webster filed a combined motion for summary judgment and
    memorandum of authorities. For purposes of summary judgment, Webster accepted as true
    Smith’s assertion that 600 combined voters in Coahoma and Quitman Counties illegally
    voted in the election or were unable to vote in the election due to misassignment. Further,
    Webster also accepted as true that all 390 absentee ballots were invalid. Smith responded
    with a motion for partial summary judgment, a motion for declaratory judgment, a motion
    for reconsideration, and a response to Webster’s motion for summary judgment. The trial
    judge held a hearing and ultimately granted Webster’s motion for summary judgement.
    ¶12.   The trial judge found that, even if he were to take Smith’s assertions as true, Webster
    still would win the election. By subtracting 296 absentee votes from Webster, Webster would
    have had 2,959 votes. By subtracting 94 absentee votes from Smith, Smith would have had
    2,275 votes. Thus, the difference between Smith and Webster without the absentee votes
    would have been 684 votes. Even assuming 600 persons unlawfully voted in the election or
    were unable to vote in the election and that all 600 would have voted for Smith, the special
    judge concluded that Webster still would have won by 84 votes.
    ¶13.   The special judge also resolved Smith’s request for declaratory judgment, finding that
    this Court already has determined that the judicial review process of election contests does
    not create a separation of powers issue. Lastly, in his order granting summary judgment, the
    special judge dismissed all other outstanding motions as moot. On October 16, 2015, Smith
    appealed. Smith raises six issues, recited verbatim as follows:
    1. The Standard of Review For a Trial Court’s Denial of Discovery Rights, the
    Exclusion of Expert Testimony and the Grant of Summary Judgment
    6
    2. Whether A Candidate For Public Office Has The Right To Make And
    Obtain Photocopies And/or Scan Of Election Materials and Documents Used
    To Conduct An Election Within The Twelve (12) Day Period Under Miss.
    Code Ann. 23-15-911 (1972)?
    3. Whether The Provisions Of The Mississippi Supreme Court May 26, 1981
    Order Adopting Rule 81(a)(4) But Leaving In Place Procedural Statutes
    Constitute Power Sharing In Violation Of The Separation of Powers Doctrine
    Or, Alternatively Determining That The Trial Court Committed An Abuse Of
    Discretion By Denying Smith’s Discovery Rights Under The MRCP?
    4. Whether The Trial Court’s Exclusion of Smith’s Experts By Order Filed
    May 20, 2015 Was An Abuse Of Discretion?
    5. Whether The Trial Court Committed Reversible Error By Granting
    Summary Judgment To Webster In The Presence Of Genuine Issues Of
    Material Fact?
    6. Whether The Trial Judge Abused Its Discretion By Not Ruling On Smith’s
    Rule 54(b) Motion For Reconsideration?
    ANALYSIS
    I.     The Standard of Review for a Trial Court’s Denial of Discovery Rights, the
    Exclusion of Expert Testimony and the Grant of Summary Judgment
    ¶14.   Because Smith’s first issue is simply a statement of the standard of review for each
    issue presented, no discussion is necessary.
    II.    Whether a candidate for public office has the right to make and obtain
    photocopies and/or scan of election materials and documents used to conduct an
    election within the twelve-day period under Mississippi Code Section 23-15-911.
    ¶15.   As a matter of statutory construction, Smith asks this Court to declare that a candidate
    has a legal right under Section 23-15-911(1) to copy, scan, and photograph redacted and
    nonconfidential material used to conduct an election during a pre-suit, ballot-box
    examination. This Court reviews issues of statutory construction de novo. Tunica County
    7
    v. Hampton Co. Nat’l Sur., LLC, 
    27 So. 3d 1128
    , 1131 (Miss. 2009).
    ¶16.   In matters concerning statutory construction, “[t]he function of the Court is not to
    decide what a statute should provide, but to determine what it does provide.” Lawson v.
    Honeywell Int’l, Inc., 
    75 So. 3d 1024
    , 1027 (Miss. 2011) (citing Russell v. State, 
    231 Miss. 176
    , 
    94 So. 2d 916
    , 917 (1957)). We do not broaden or restrict legislative acts, but rather
    seek to “give effect to the intent of the Legislature.” 
    Id.
     (citing City of Natchez, Miss. v.
    Sullivan, 
    612 So. 2d 1087
    , 1089 (Miss. 1992)). When a statute is unambiguous, this Court
    simply applies the plain meaning of its words. 
    Id. ¶17
    .   Section 23-15-911(1) states, in pertinent part:
    . . . At any time within twelve (12) days after the canvass and examination of
    the box and its contents by the election commission or executive committee,
    as the case may be, any candidate or his representative authorized in writing
    by him shall have the right of full examination of said box and its contents
    upon three (3) days’ notice of his application therefor served upon the
    opposing candidate or candidates, or upon any member of their family over the
    age of eighteen (18) years, which examination shall be conducted in the
    presence of the circuit clerk or his deputy who shall be charged with the duty
    to see that none of the contents of the box are removed from the presence of
    the clerk or in any way tampered with. Upon the completion of said
    examination the box shall be resealed with all its contents as theretofore.
    
    Miss. Code Ann. § 23-15-911
    (1) (Rev. 2015) (emphasis added). Smith does not identify any
    particular language in the statute that grants a candidate the right to copy the contents of the
    ballot box. Rather, she simply asks this Court to hold that this statute contains such a right.
    Though the statute grants a candidate “the right of full examination of said box and its
    contents,” it says nothing about whether ballot-box materials may be copied or scanned. See
    
    id.
    8
    ¶18.   The Mississippi Attorney General has opined as follows:
    There is no doubt that a candidate who makes his request to examine the ballot
    boxes in a timely manner has a right to do so. However, there is no statutory
    authority for a candidate to remove the ballots to copy or to bring a copy
    machine into the room where the ballots are kept to make copies of the ballots.
    Hon. Valerie T. Smith, Miss. Att’y Gen. Op. No. 97-0322, 
    1997 WL 370242
     (June 13, 1997)
    (emphasis added); see also Fritzie Toney Youngman, Esquire, Miss. Att’y Gen. Op. No.
    2001-0367, 
    2001 WL 797251
     (June 22, 2001) (finding same). Attorney-general opinions are
    not binding on this Court but may be considered. See McAdams v. Perkins, 
    204 So. 3d 1257
    ,
    1262 (Miss. 2016).
    ¶19.   Like these attorney-general opinions and the special judge, we find that Section 23-15-
    911(1) is unambiguous in that it does not create a right to copy or scan materials from the
    ballot box during a statutory examination. We find this argument without merit.
    III.   Whether the provisions of the Mississippi Supreme Court May 26, 1981, order
    adopting Rule 81(a)(4) but leaving in place procedural statutes constitute power
    sharing in violation of the separation-of-powers doctrine or, alternatively,
    determining that the trial court committed an abuse of discretion by denying
    Smith’s discovery rights under the Mississippi Rules of Civil Procedure [sic].
    ¶20.   Smith’s third issue consists of two separate arguments. Both of these arguments center
    around her being unable to reexamine the contents of the ballot boxes after she filed her
    lawsuit, which Smith characterizes as a denial of discovery. First, Smith claims that Section
    23-15-911(1) is a legislatively promulgated procedural statute which restricts the scope of
    discovery.
    ¶21.   From the outset, we disagree with Smith’s assertion that Section 23-15-911(1) is a
    legislatively promulgated procedural rule in violation of Mississippi Constitution Article 1,
    9
    Section 2.10 To the contrary, this Court has strictly upheld the statute’s twelve-day time
    frame to view the contents of the ballot box. See Cook v. Brown, 
    909 So. 2d 1075
    , 1077
    (Miss. 2005); see also Weeks v. Bates, 
    237 Miss. 778
    , 780, 
    115 So. 2d 298
    , 300 (1959)). In
    doing so, this Court has noted that “the time frame for viewing ballots is a legislative
    function, and this Court has no authority to modify the statutory limitation.” Cook, 
    909 So. 2d 1077
     (citing Weeks, 115 So. 2d at 300) (emphasis added). Simply put, Section 23-15-
    911(1) creates a substantive right to view the ballot-box contents for a limited time after an
    election is conducted. This right does not restrict any party’s discovery rights under our rules
    of civil procedure.
    ¶22.   Second, Smith argues that the trial judge abused his discretion by denying her Rule
    34 motion to examine, inspect, and photocopy the contents of the ballot boxes. Because a
    general election contest had been filed when her motion was presented, Smith argues that she
    was authorized to copy the contents of the ballot boxes under Mississippi’s discovery rules.
    She asserts that, instead of applying the rules to her request, the trial judge determined that
    Section 23-15-911(1) controlled the scope of discovery in this election contest.
    ¶23.   Though the special judge stated that Rule 81 limits the application of the rules in an
    election contest, he still found that, if the rules did apply, Rule 34 did not govern Smith’s
    10
    No person or collection of persons, being one or belonging to one of these
    departments [the legislative, executive, or judicial], shall exercise any power
    properly belonging to either of the others. The acceptance of an office in
    either of said departments shall, of itself, and at once, vacate any and all
    offices held by the person so accepting in either of the other departments.
    Miss. Const. art. 1, § 2.
    10
    request. In the proceedings below, Smith sought to copy the contents of the ballot boxes
    pursuant to Rule 34. The scope of Rule 34, however, applies only to documents “within the
    possession, custody, or control of the party upon whom the request is served.” See Miss. R.
    Civ. P. 34(a). Here, no request was served upon a party; rather, a motion was filed asking the
    special judge to enter an order allowing Smith to photocopy the documents in the ballot
    boxes. Even more, Rule 34 applies only to documents in the possession, custody, or control
    of another party. See id. The only other party to this case was Webster, and, of course, the
    ballot-box materials were not in his possession, custody, or control. Therefore, we agree with
    the special judge’s finding that Rule 34 did not apply to Smith’s request.
    ¶24.     Additionally, Smith’s argument fails to recognize that the special judge granted her
    fifteen days to request specific documents from the ballot box that she had found
    objectionable and wanted to copy. Regardless of how Smith characterizes her argument,
    Judge Chaney in fact granted her an opportunity to copy documents from the ballot boxes
    that she viewed during the twelve-day period in Section 23-15-911(1). However, Smith
    failed to comply with the special judge’s order. Instead of requesting documents concerning
    specific voters as instructed, Smith asked to copy “each” absentee ballot and “each” absentee
    envelope. Further, most of the documents she requested were not even located in the ballot
    boxes.
    ¶25.     As an aside, we also note that, for purposes of summary judgment, the trial judge
    agreed to throw out all of the absentee ballot votes that Smith sought to copy. Thus, this
    argument is, in essence, moot. Finally, we note that Smith was not denied discovery in this
    11
    matter under the Mississippi Rules of Civil Procedure. Smith conducted depositions of three
    circuit clerks, and the parties engaged in extensive written discovery. We find this issue to
    be without merit.
    IV.    Whether the trial court’s exclusion of Smith’s experts by order filed May 20,
    2015, was an abuse of discretion.
    ¶26.   For the reasons set forth in Issue V, we decline to address Smith’s fourth issue.
    V.     Whether the trial court committed reversible error by granting summary
    judgment to Webster in the presence of genuine issues of material fact.
    ¶27.   Next, Smith argues that the special judge erred by granting Webster’s motion for
    summary judgment because questions of material fact existed for a jury to decide. Smith
    argues that by disqualifying (1) all 390 absentee votes, (2) all votes which she claims were
    illegally cast by voters who were nonresidents of subdistrict 11-3, and (3) giving her the
    benefit of all votes from subdistrict 11-3 residents who were “left off of the pollbooks,” she
    puts enough votes in dispute to entitle her to a jury trial. Even throwing out all of these votes
    and taking into account the findings of Smith’s disallowed expert, Smith does not overcome
    Webster’s 886-vote margin.
    ¶28.   A trial judge’s grant of summary judgment is reviewed de novo. Moore v. Parker, 
    962 So. 2d 558
    , 567 (Miss. 2007). “[T]he pleadings, depositions, answers to interrogatories and
    admissions on file, together with the affidavits, if any, [must] show that there is no genuine
    issue as to any material fact and that the moving party is entitled to a judgment as a matter
    of law.” 
    Id.
     (quoting Miss. R. Civ. P. 56(c)). “[A]n adverse party [to summary judgment]
    may not rest upon the mere allegations or denials of the pleadings, but instead the response
    12
    must set forth specific facts showing there is a genuine issue for trial.” Bosarge v. LWC
    Props, LLC, 
    158 So. 3d 1137
    , 1142 (Miss. 2015). “If no genuine issue of material fact exists
    and the moving party is entitled to judgment as a matter of law, summary judgment should
    be entered in that party’s favor.” 
    Id.
     (quoting Monsanto Co. v. Hall, 
    912 So. 2d 134
    , 136
    (Miss. 2005)).
    Absentee Ballots
    ¶29.   Regarding the absentee ballots cast in the subdistrict 11-3 election, Smith alleged that
    most of the absentee-ballot envelopes and applications were in violation of mandatory
    statutory provisions. In her discovery responses, Smith stated that:
    During petitioner’s ballot box examinations in [Coahoma County], [Quitman
    County] and [Tunica County], a review revealed that a total of 390 absentee
    ballots were cast in [subdistrict] 11-3; petitioner received 94 total absentee
    votes; respondent received 296 absentee votes; respondent received 75.89%
    percent of the total absentee votes. The absentee ballots have now been
    commingled and if irregularities are established to these absentee ballots, all
    absentee ballots must be thrown out.
    ¶30.   The trial judge accepted as true for purposes of summary judgment that all 390
    absentee ballots were illegal. Thus, after throwing out 296 votes for Webster and 94 votes
    for Smith, Webster’s margin of victory dropped from 886 votes to 684 votes. See Fillingane
    v. Breland, 
    212 Miss. 423
    , 437, 
    54 So. 2d 747
    , 750 (1954) (“[Illegal ballots] require[] a
    reduction of a contestee’s vote . . . .”). Therefore, no genuine issue of material fact exists
    concerning the absentee ballots in the subdistrict 11-3 election.
    Smith’s Misassignment Theory
    ¶31.   To overcome Webster’s winning margin, Smith also alleged that numerous votes from
    13
    Coahoma and Quitman Counties in the election came from misassigned and therefore illegal,
    nonresident voters of subdistricts 11-1 and 11-2. Further, Smith averred that numerous
    persons who in fact resided in subdistrict 11-3 were unable to vote in the general election
    because they had also been misassigned to the wrong subdistrict.
    ¶32.   Smith’s theory of misassignment stems from the findings of her disallowed expert,
    Cooper. Based on his geocoding analysis, Cooper determined that approximately 1,385
    registered voters were assigned to the incorrect subdistricts in Coahoma and Quitman
    Counties.11 Smith took this number and concluded that 600 persons illegally voted or were
    unable to vote in the general election. In her amended petition, Smith alleged:
    85. . . . a minimum combined total of 337 [Coahoma County] legal resident
    voters of SD 11-3 were denied their statutory and constitutional right under
    Mississippi law to vote and illegal non-resident voters of SD 11-1 and/or SD
    11-2 in [Coahoma County] were misssigned to SD 11-3 and permitted to vote
    in the SD 11-3 CCJ election, according to the [Coahoma County] SEMS VR-
    009 Voter History Report and pollbooks provided on April 21, 2015.
    86. In [Quitman County], in the November 4, 2014 CCJ SD 11-3 election, a
    minimum combined total of 263 legal resident voters of SD 11-3 were denied
    their right to vote under Mississippi law and illegal non-resident voters of SD
    11-2 of [Quitman County] were permitted to vote in the SD 11-3 election.
    (Emphasis in original.)
    ¶33.   Like Smith’s argument concerning the absentee ballots, Smith placed before the
    special judge only allegations as to why 600 votes should be discarded—not facts. Smith
    incorrectly claims in her brief that “Mr. Cooper’s declaration states that 600 persons who
    were allowed to vote in [subdistrict] 11-3 on November 4, 2014 [,] were illegally and
    11
    Cooper did not note how many, if any, of the 1,385 registered voters actually voted
    in the November 4 election.
    14
    improperly mis-assigned to [subdistrict] 11-3, but are in fact residents of [subdistricts 11-1
    and/or 11-2 in Coahoma and Quitman Counties].” The brief further claims that “Mr.
    Cooper’s declaration attest [sic] to the fact that 337 non-resident voters in [Coahoma County]
    and 263 non-resident voters in [Quitman County] illegally voted in [subdistrict] 11-3[.]”
    Cooper’s declaration, however, contains no such statements.
    ¶34.   So, as shown, Smith’s amended petition alleged that 600 voters from subdistrict 11-1
    and 11-2 illegally voted in the election. Her petition did not, however, specify how many
    voters from subdistrict 11-3 were improperly assigned to the incorrect subdistrict and
    therefore “left off of the pollbooks.” But, when responding to Webster’s Third Set of
    Interrogatories during discovery, Smith stated the following with regard to Coahoma County:
    I contend that the combined total of legal resident voters of SD 11-3 of
    Coahoma County, Mississippi (CCM) who were denied the right to vote in the
    November 4, 2014 circuit court judge election by being misassigned to SD 11-
    1 or 11-2 and the illegal non-resident voters of SD-11-3 and permitted to vote
    in the SD 11-3 election total 337 to date. My investigation continues and this
    answer will be supplemented.12
    (Emphasis added.) With regard to Quitman County, Smith answered:
    In Quitman County, Mississippi (QCM), I contend that a combined total of
    legal resident voters of SD 11-3 who were denied the right to vote in the
    November 4, 2014 circuit court judge election and illegal non-resident voters
    of SD 11-2 of QCM who were permitted to vote in the SD 11-3 election total
    263.
    (Emphasis added.) Based on Smith’s sworn responses, it is clear that Smith’s 600-voter total
    includes all persons who she claims were unable to vote in subdistrict 11-3 and those who
    she claims unlawfully voted in the subdistrict 11-3 election.
    12
    There is no indication in the record that the total of 337 was ever supplemented.
    15
    ¶35.   For purposes of summary judgment, Webster and the trial judge took these allegations
    as true and gave Smith the benefit of all 600 votes. Even with the benefit of these 600 votes,
    however, Webster still won the election by 84 votes. Smith stated her theory of overcoming
    Webster’s margin of victory in a response to an interrogatory:
    If the 390 absentee ballots cast are determined to be illegal votes due to
    statutory defects and are thrown out coupled with the 337 misassigned and
    illegal votes cast in CCM and the 263 misassigned and illegal votes cast in
    QCM, the 886 winning margin shown in the certified returns is overcome by
    the 990 misasigned [sic] and illegal votes case [sic] and the election results
    thereof do not conform to the will of the voters and uncertainty has been cast
    upon the results.
    (Emphasis added.) Smith’s theory, however, erroneously added the 390 absentee ballots to
    the 600 misassigned voters rather than subtracting the number of absentee votes each
    candidate received. Therefore, even taking all of Smith’s allegations as true, no genuine issue
    of material fact exists as to which candidate received the greatest number of legal votes in
    the subdistrict 11-3 election.13
    VI.    Whether the trial judge abused his discretion by not ruling on Smith’s Rule
    54(b) motion for reconsideration.
    ¶36.   Lastly, Smith argues that the special judge failed to rule on a pending motion to
    reconsider four of his prior orders and therefore abused his discretion. We disagree.
    Paragraph 14 of the judge’s order granting summary judgment states:
    Because of the court’s ruling on this dispositve motion, all other outstanding
    motions are dismissed as moot.
    13
    Smith’s brief centers solely around the exclusion of Cooper’s findings and presents
    no argument as to why it was error to exclude Brooks, other than a summary statement
    claiming such. We find any argument asserting that the trial judge erred by disallowing
    Brooks to be waived. See Morgan v. City of Ruleville, 
    627 So. 2d 275
    , 279-80 (Miss. 1993).
    16
    ¶37.   So, instead of entering a separate order disposing of Smith’s motion to reconsider, the
    special judge summarily disposed of all outstanding motions, including Smith’s Rule 54(b)
    motion. No error occurred here.
    CONCLUSION
    ¶38.   For the above reasons, we affirm the judgment granting summary judgment in favor
    of Webster.
    ¶39.   AFFIRMED.
    WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING,
    COLEMAN, MAXWELL AND BEAM, JJ., CONCUR.
    17
    

Document Info

Docket Number: 2015-EC-01562-SCT

Citation Numbers: 233 So. 3d 242

Filed Date: 5/25/2017

Precedential Status: Precedential

Modified Date: 1/12/2023