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Rice v. Perma Corp.8/9/2005
imants suffered injuries producing damages. The claimants asserted in their complaint eight separate claims, specifically being negligence, negligent supervision, negligent failure to warn, wantonness, wanton/reckless supervision, wanton failure to warn, breach of contract and intent; however, we observe that the substantive allegations advanced therein, as to each of said claims, only support theories of either negligence or breach of contract. In general, the claimants averred that Perma Corp.'s actions were negligent and intentional, thereby entitling them to compensatory and punitive damages. The claimants also averred that they were third party beneficiaries to the contract between the City of Macon and Perma Corp., and that Perma Corp. breached said contract by allowing the contamination to occur.
. Perma Corp. answered the complaint denying each claim advanced therein and, with said answer, propounded interrogatories and requests for production. Perma Corp. found several of the claimants' responses to be inadequate, particularly those concerning experts and their identification of contaminants that produced the claimants' purported damages. As a result, Perma Corp. filed a motion to compel, and after a hearing on the motion, the court ordered the claimants to supplement their responses. The claimants, however, failed to provide Perma Corp. with supplemented responses within the period ordered by the court.
. On July 31, 2002, the parties entered an agreed scheduling order stipulating that the claimants would designate their experts with all appropriate M.R.C.P. 26(b)(4) information by November 30, 2002, but the parties later agreed to extend that deadline to January 31, 2003. Within that time, the claimants submitted, inter alia, a listing of fourteen medical doctors to be designated as experts.
. Following the expiration of the agreed deadline for discovery requests and responses, Perma Corp. filed a motion for summary judgment, and a hearing on that motion was set for a July 9, 2003. On July 8, the day before the hearing, the claimants filed their response to the summary judgment motion, in which they included the purported expert affidavit of Dr. Debra Gabriel. Dr. Gabriel, however, was not among the fourteen medical doctors previously listed by the claimants for expert designation, so in conjunction with their response to summary judgment, the claimants filed a supplemental list naming Dr. Gabriel as a witness to be designation as an expert. After the July 9 hearing, Perma Corp. filed motions requesting that the court strike the claimants' response to the motion for summary judgment and that it strike the claimants' supplemental designation of experts and affidavit of Dr. Gabriel.
. The court subsequently contacted Perma Corp. and requested that it draft and then return to the court a proposed order, so Perma Corp. did just that but did not send a copy thereof to the claimants. The lower court then entered final judgment on July 30, 2003, in which it granted each of Perma Corp.'s motions and additionally stated that summary judgment was proper "with or without the response, supplemental expert designation and affidavit of Dr. Gabriel . . . ." The claimants, however, did not receive notice of the judgment until September 8, so on September 19, they filed with the court a motion to reopen the time for appeal. Perma Corp. opposed the request, but the court, nonetheless, granted the motion.
LAW AND ANALYSIS
. The lower court relied on Rule 4(h) of the Mississippi Rules of Appellate Procedure in granting the claimants' request to reopen the time for appeal. However, in reviewing the rule, we find it to declare that " eopening may b
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