REPLY BRIEF OF APPELLANT

Transcription

1 E-Filed Document Nov :38: CA Pages: 13 IN THE SUPREME COURT OF MISSISSIPPI Case No CA JOHN CALVIN HOWARD APPELLANT VS. ROLIN ENTERPRISES, LLC, LINDA WALKER, INDIVIDUALLY, AND DOING BUSINESS AS ROLIN ENTERPRISES, LLC, AND CHARLIE NORRELL APPELLEES REPLY BRIEF OF APPELLANT FROM THE CIRCUIT COURT OF CLAIBORNE COUNTY W. Richard Johnson, MSB # 8811 David M. Sessums, MSB #6714 ATTORNEYS FOR John Calvin Howard, APPELLANT VARNER, PARKER & SESSUMS, P.A Jackson Street Vicksburg, MS Ph: (601)

2 IN THE SUPREME COURT OF MISSISSIPPI Case No CA JOHN CALVIN HOWARD APPELLANT VS. ROLIN ENTERPRISES, LLC, LINDA WALKER, INDIVIDUALLY, AND DOING BUSINESS AS ROLIN ENTERPRISES, LLC, AND CHARLIE NORRELL APPELLEES CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following have an interest in this action. These representations are made so that the Justices of this Court may evaluate possible disqualification or recusal: 1. Honorable Lamar Pickard PO Box 310 Hazlehurst, MS W. Richard Johnson, Esquire 1100 Clay Street Vicksburg, MS Kim Nailor, Esquire 1415 First North Street Vicksburg, MS David M. Sessums, Esquire 1110 Jackson Street Vicksburg, MS i-

3 4. John Calvin Howard, Appellant 6. Rolin Enterprises, LLC, Appellee 7. Linda Walker, Appellee 8. B. Lyle Robinson, Esquire M. Madison Taylor, Esquire 1000 Highland Colony Parkway, Suite 5203 Ridgeland, MS Attorneys for Appellees Linda Walker and Rolin Enterprises, LLC 9 Mr. Charlie Norrell 1045 Magnolia Lane Port Gibson, MS Appellee - Pro Se Respectfully submitted, By: /s/ W. Richard Johnson DAVID M. SESSUMS MSB #6714 W. RICHARD JOHNSON MSB #8811 OF COUNSEL: W. Richard Johnson Attorney At Law 1100 Clay Street Vicksburg, MS Telephone: VARNER, PARKER & SESSUMS, P.A Jackson Street Vicksburg, Mississippi Telephone: 601/ Facsimile: 601/ ii-

4 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PARTIES TABLE OF CONTENTS TABLE OF AUTHORITIES i iii iv ARGUMENT IN RESPONSE CONCLUSION CERTIFICATE OF SERVICE iii-

5 TABLE OF AUTHORITIES 1. Durr v. City of Picayune, 185 So3d 1042 (Miss ) 2. Karpinsky v. American National Insurance Co., 109 So3d 84 (Miss. 2013) 3. Buckel v. Chaney, 47 So3d 148 (Miss) Rankin v. Matthews, 2015-CA COA, decided August 9, iv-

6 ARGUMENT IN RESPONSE This matter is a de novo consideration, and this court is not bound to adopt or otherwise respect the factual findings or the decision of the court from which this appeal is taken. "We review the grant or denial of a motion for summary judgment de novo, viewing the evidence in light most favorable to the party against whom the motion has been made". Durr v. City of Picayune, 185 So3d 1042 (Miss ), Karpinsky v. American National Insurance Co., 109 So3d 84 (Miss. 2013). This court is required to consider the Motion for Summary Judgment filed by Walker and Rolin in the light most favorable to Appellant, and without any advantage created by that court's previous ruling. The burden is with Appellant to demonstarte the existence of enough evidence, circumstantial or otherwise, to take his claim out of the realm of"mere conjecture" and plant them in the solid ground of"reasonable inference". Buckel v. Chaney, 47 So3d 148 (Miss) 2010, and Rankin v. Matthews, 2015-CA COA, decided August 9, The developed proof in this case sufficiently discloses the existence of legitimate, material, and relevant factually-contested issues and legal principles of agency, duty of care, sufficiency of security, knowledge of danger, negligence, causation, foreseeability, and imputed liability, which sufficiently "plants Appellant's claim in the solid ground of reasonable inference", and which precludes the entry of summary judgment in favor of Appellees. In light of the evidence in this record, some of which is specifically reflected or summarized in the Brief of Appellant to support the existence of contested material facts, it is a fallacy for Appellees to argue that "there is no evidence of an atmosphere of violence", (Brief of Appellee, p. 8) or that "Appellant (Howard) can not show that Walker or Norrell had actual or constructive -1-

7 knowledge of an atmosphere of violence" (Brief of Appellee, p. 7) when the facts developed through the deposition testimony and the admissions by Norrell in his statement to law enforcement, as contained in the record and as mentioned in the Brief of Appellant clearly identifies the fact that Appellant was suddenly attacked and assaulted inside the building and the known danger (violent atmosphere) was transferred outside by Norrell, who knowingly allowed the violence to simmer outside until Appellant attempted to leave without protective assistance and was attacked again, and this time seriously injured. Appellees contend that there is "nothing" to support or impute knowledge of an unsafe and dangerous condition on the premises. Appellant would again call to the Court's attention the deposition testimony of Walker wherein she recognized and acknowledged that when alcohol is expected to be consumed on the premises, as it was this event, that she requires at least 5-6 security officers to keep the premises "reasonably safe" foreseeing the "rowdy" and unexpected behavior of intoxicated patrons. There is absolutely no evidence in this case that Walker, or her agents, employed such a number of qualified security officers on the night of the assault against Appellant. Walker could not remember exactly who or how many where present. This factual consideration is clearly relevant to the issue of whether Walker met her burden to keep the premises reasonably safe. Further, Norrell admitted in his statement that he possessed actual knowledge of the violent reputation and character of the assailants he knew were lurking outside the building and planning to violently attack Appellant if given the opportunity. It is certainly a reasonable inference to reason that the lack of qualified security personnel provided the assailants with such an opportunity. Knowledge of a dangerous condition, and arguably causation, attached to both Walker and Norrell. A principal-agent relationship between Walker and Norrell can certainly be evident from -2-

8 the facts and evidence. Appellant would respectfully request that attention be given, again, to the deposition testimony, the statement of Norrell to law enforcement, and other evidence highlighted in the Brief of Appellant that specifically and clearly discloses the un-doubtable conclusion that reliable material evidence exists on various contested issues of fact to preclude the entry of summary judgment in favor of Appellees. Appellees mistakenly assert that the limited issue before this court is whether there is "absence of evidence" that Appellees had actual or constructive knowledge of an atmosphere of violence or the assailant's violent nature. (Statement of the Issues- Brief of Appellees, p.l). The existence of and knowledge of an atmosphere of violence is only one of several factually contested issues. Appellants Corrected Amended Complaint outlines a premises liability claim of negligence against Appellees (and those to whom she alleged to have "assigned" responsibility) for their negligence, as a principal or agent/employee, in allowing or creating an unsafe and dangerous condition on the premises which was reasonably foreseeable to cause the type of injury and hurt caused Appellant in this case. The facts and evidence indicates that there exists arguable legal principles and contested factnal issues not yet decided, i.e., legal status of Appellant and the corresponding duty owed, possession and control of premises, agency and imputed liability, issues of negligence-reasonably safe/duty to warn, adequacy of security, causing/contributing to unsafe premises, atmosphere of violence, actual/constructive knowledge, and foreseeability. The "unsafe premises" allegation, like the allegations of duty, control, agency, breach, causation, and damages are legitimate and material contested matters which must be resolved by the -3-

9 fact-finder, and not decided on summary judgment. The Brief of Appellant identifies and highlights the existence of significant evidence and facts regarding legal principles and contested issues which prevent a summary finding in favor of Appellees. Appellees response, in the Brief of Appellees, to the evidence in the record is a further recitation, in itself, of conflicting and contested testimony and legitimate issues that preclude summary judgment. The ultimate issue for consideration (whether summary judgment is proper) is more-encompassing than to suggest, as Appellees have, that "Howard cannot show actual or constructive knowledge of an atmosphere of violence or of the third-party assailant's violent nature". The examination by this court should be "Is there sufficient evidence of contested issues of material facts to preclude the entry of summary judgment?" The record reflects that there certainly is! The assertions and argument made in the Brief of Appellees, have failed to demonstrate a lack thereof. Appellant would respectfully remind the court, as attempted by Appellant in his brief to this Court and previously to the Court of record, of some of the conflicting or contested facts: Addressing the specific issue of unsafe premises as it relates to an atmosphere and knowledge- substantial evidence exists regarding Walker's failure to secure, what she determined to be, the required number of security personnel to manage a foreseeable danger created by the invitation and environment that she offered and provided; and, Walker's knowledge of the unpredictable behavior of patrons consuming alcohol; and, Walker's lack of control of patron's behavior inside and outside the premises; and, the danger created when the known assailants inside the building were evicted from the building but were not made to leave the premises; and, Norrell's -4-

10 knowledge of the dangerous condition that was awaiting Howard outside, an atmosphere of violence that was clearly foreseeable to Norrell. Addressing the issue of control of premises and the agency issue- the sworn deposition testimony of 21-year-old, Triston Moore, that he never rented the building as contended by Linda Walker, and notwithstanding the "Rental Agreement" produced by Walker; and, Moore further testified that she never allowed him (Moore) to "rent" the building; and, Moore testified that his agreements with her always included a split of the door; and, Moore did not consider himself legally responsible for the injuries to Howard; and, the fact that Moore testified that Walker was in charge the number of security personnel needed inside the building. (Appellant would take exception to Appellees' statement that "Security was not paid for by Walker and Rolin. Rather, security was paid for by Moore, the lessee of the facility" (Brief of Appellees, p.16) as a misappropriate connotation of the evidence and testimony which clearly suggested that the security personnel were paid "out of the door proceeds", and not from any other funds.) Addressing the issue of Howard's status on the premises- "Walker and Rolin do not admit that Howard was an invitee of Walker and Rolin, but Howard's classification is not material to this basis for summary judgment" (Brief of Appellees, p.7, footnote 1, emphasis added). It is undisputed that Howard was a welcomed patron who paid money at the door to attend the party, which was advertised and open to anyone 18 to enter, 21 to drink. Howard's legal status is certainly "material" to an evaluation of his negligence claim against Appellees and the corresponding duty owed to him. A determination can not be made as to whether Appellees breached a duty to Appellant without first determining what duty was owed him. Addressing the issue of Walker and Norrell's negligence- the facts suggesting Walker's -5-

11 negligence have been have already been summarized in this response. Norrell's recorded statement of Norrell to law enforcement was that he (Norrell) "knew" the danger awaiting Howard outside, and that it was an atmosphere of violence and it was clearly foreseeable, and arguably created by the negligence of Walker and/or Norrell. The fact that no security officer was able to escort Howard safely off the premises supports the inference that the premises were not reasonably safe. Norrell's recorded statement is admissible and relevant to the issues of duty, breach of duty, causation, knowledge, foreseeability and imputed liability. Addressing the issue of agency and imputed liability- the Corrected Amended Complaint (and surely a pre-trial Order, when considered by the court along with the proposed jury instructions) specifically alleged: * * * 7. At all times relative hereto, the acts and/or omissions of the owners, agents, or employees of The Convention Center, including the acts and/or omissions contained in Paragraph 6 of this Complaint, were done during the course and scope of their employment, and liability is imputed to Defendants. (Corrected Amended Complaint) Appellant would again suggest that "Defendant Walker and her counsel choose to ignore the allegations charging an agency relationship between Walker and Norrell. They chose not to provide a defense for the security agent Defendant, Norrell, and chose not to seek a cross-claim against him on behalf of the owner, and elected to defend the claims against Walker by holding to the position that Walker had "assigned" responsibility to Norrell to keep the premises in a reasonably safe condition by reason that Norrell had executed the "Security Agreement" (misnomer) within hours of the assault upon Howard and therefore Walker had no duty to Plaintiff' (Brief of Appellant, p.14). -6-

12 CONCLUSION Appellees have failed to demonstrate to this court that there is a complete "absence of evidence of contested material facts" which is the standard consider the granting of summary judgment for Appellees. Conversely, the record is clear that contested issues of material fact exist regarding relevant legal principles and facts which can not be summarily decided as a matter of law. Summary Judgment should not enter in favor of Appellees. This case should be remanded for appropriate determination of the contested issues of material fact by the trier of fact. Respectfully Submitted, John Calvin Howard By: /s/ W. Richard Johnson David M. Sessums, MSB # 6714 Varner, Parker & Sessums, P.A Jackson Street Vicksburg, MS W. Richard Johnson MSB# Clay Street Vicksburg, Mississippi Kimberly Walker Nailor MSB# First North Street Vicksburg, MS

13 CERTIFICATE OF SERVICE I, DAVID M. SESSUMS, the undersigned attorney for John Calvin Howard, hereby declare that I have this day mailed, postage prepaid, a true and correct copy of Brief of Appellant to the following: 1. Honorable Lamar Pickard PO Box 310 Hazlehurst, MS Kim Nailor, Esquire 1415 First North Street Vicksburg, MS W. Richard Johnson, Esquire 1000 Clay Street Vicksburg, MS B. Lyle Robinson, Esquire M. Madison Taylor, Esquire 1000 Highland Colony Parkway, Suite 5203 Ridgeland, MS Attorneys for Appellee Linda Walker and Rolin Enterprises, LLC 5 Mr. Charlie Norrell 1045 Magnolia Lane Port Gibson, MS Appellee - Pro Se th This the 15 day of November, /s/ David M. Sessums DAVID M. SESSUMS -8-