Rules of Appellate Procedure, and files this Motion for Rehearing of the decision rendered by the

Transcription

1 E-Filed Document Aug :22: CA COA Pages: 5 IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI NO CA CONNIE HAWKINS, Individually and on Behalf of the WRONGFUL DEATH BENEFICIARIES of GEORGE LEITH HAWKINS, III, DECEASED APPELLANT v. HECK YEA QUARTER HORSES, LLC WALLACE HACK indo ind. DBA HECK YEA QUARTER HORSES, LLC, BRUCE HORN, and JOHN DOES 1-5 APPELLEES APPELLANT'S MOTION FOR RECONSIDERATION AND/OR REHEARING COMES NOW the Appellant, Connie Hawkins, pursuant to Rule 17 of the Mississippi Rules of Appellate Procedure, and files this Motion for Rehearing of the decision rendered by the Court of Appeals for the State of Mississippi on or about July 25, 2017 and would state as follows: 1. Appellant respectfully requests the Court of Appeals reconsider the decision in the aforementioned matter and find that resolution of this case through Summary Judgment was in error. Respectfully, the findings of the Circuit Court Judge are not supported by the undisputed facts. 2. Plaintiff submitted significant affidavit testimony which provided admissible testimony (through expert and lay witnesses) and admissions against interest by the defendants that create genuine issues of material fact. I 1

2 3. Plaintiff recognizes the burden of proof and the Coutt of Appeals' identification of standards and applicable laws are accurate. However, respectfully, the Court of Appeals decision seems to be based on the position that proof relied upon by the Plaintiff constituted "inadmissible double hearsay." Consequently, the Court determined Mrs. Hawkins' contradictory testimony ( of statements made to her by Danny Martin) to be inadmissible. The Court of Appeals further stated "Martin was never deposed, and no additional evidence was proffered to supp01t Hawkins's wrongful-death claim. Moreover, Hawkins never subpoenaed Martin to substantiate her claims". See July 25, 2017, Opinion at p. 6 (emphasis added). The Appellant, however, respectfully submits she did not rely on the statements of Danny Martin, but instead relied upon the sworn affidavit of Brad Goodman. The Court's decision is mistaken. It appears the Court's decision was based solely on the "inadmissible double hearsay" testimony of the widow, Hawkins, when in fact, she submitted affidavit testimony wherein the Defendant, Bruce Hom, gave admissions against interest to the affiant Brad Goodman, whose testimony included statements that would be admissible at trial and creates a factual dispute, and in fact provides evidence that refutes Hom's testimony. MR.E. 801 (d)(2). See also, Goodman Affidavit, Rat 135, a copy of which is attached as Exhibit "A." 4. Appellant recognizes the difficulty in proving the allegations in the initial complaint. In fact, there were only three (3) individuals present on the day and time of the incident that is the basis of this claim. These individuals include the Defendant, Bruce Hom; the decedent, George L. Hawkins; and one other unknown employee of the Defendant. The Appellant requested information regarding the identity and location of the unknown employee and other non-party 2

3 witnesses during the discovery process but Defendants claimed they could not locate him and that he was likely an illegal alien from Mexico. 5. Nonetheless, Defendant Horn gave testimony which substantiated and supported the Motion for Summary Judgment in that Mr. Hawkins was not in distress; therefore Defendants did not breach their duty under general negligence principles. However, the deposition testimony of Horn is directly contradicted by his admission against interest set forth in the affidavit of Brad Goodman, which is not inadmissible hearsay, as provided by the Rules of Evidence. There is no dispute Mr. Hawkins suffered a heat stroke or that he was in distress, but the central issue is the degree of distress. The dispute lies with the contradictory statement made by Defendant Horn, whose truth or veracity should be weighed by the fact finder. 6. The question not addressed in the Court of Appeal's decision directly relates to this one pivotal issue: are the admissions made against interest by Defendant Horn set forth in the affidavit of Brad Goodman admissible at trial? These admissions are not hearsay and the answer to that question is clearly in the affirmative. In accordance with M.R.C.P. 56(e), Brad Goodman's affidavit (not Danny Martin's double hearsay) is admissible in a Motion for Summary Judgment, as it would be if taken at a deposition. The affidavit reveals genuine issues of material fact and disputes the credibility of what actually occurred on the date of the incident in question. Defendant Horn stated the decedent Hawkins was not in significant distress, or he would have had an obligation to call an ambulance. Approximately a day after the incident, Horn admitted to Goodman that Mr. Hawkins had "passed out" and that he thought he was 3

4 "going to die out there". R These statements which prove Defendant Hom knew Hawkins was in significant distress contradict Hom's testimony. This creates a question for the jury. Defendants, not Hawkins, used her deposition testimony recalling Danny Martin informing her of Defendant Hom's statements, which happens to be similar to Goodman's Affidavit. Plaintiff acknowledges Martin's statements are not admissible. See Appellee Brief at p. 9. However, the sworn affidavit of Brad Goodman is admissible evidence that can be used to refute the Motion for Summary Judgment. Hawkins never relied on double hearsay. 7. Respectfully, the Mississippi Rules of Evidence, as well as established case law, allow for utilization of the affidavit of Brad Goodman, including Defendant Hom's admissions against interest, to be admissible. This evidence in and of itself creates a jury issue of veracity and credibility of the apparent only witness to the events, Defendant, Bruce Hom. There is no dispute Hawkins suffered a heat stroke that caused his death. Those facts, when viewed in a light most favorable to the non-movant, require reversal. As such, Summary Judgment was improper. 8. Plaintiff respectfully submits the Court of Appeals failed to consider the affidavit of Brad Goodman, which would have revealed issues of fact, making Summary Judgment improper. WHEREFORE, Appellant, Connie Hawkins, respectfully requests the Court of Appeals reevaluate its' findings and find Summary Judgment improper. RESPECTFULLY SUBMITTED, this the 8th day of August,

5 CONNIE HAWKINS, APPELLANT BY: Isl John H. Stevens JOHN H. STEVENS (MSB #8528) OF COUNSEL: GRENFELL & STEVENS 1535 Lelia Drive (39216) P. 0. Box Jackson, MS Telephone: (601) Facsimile: (601) jstevens9 Attorney for Appellant CERTIFICATE OF SERVICE I, John H. Stevens, attorney for Appellant, do hereby certify that I have this day electronically filed the foregoing Appellant's Motion for Reconsideration via the MEC/ECF system, who will notify and provide a true and correct copy of the above and foregoing to: Robert P. Thompson, Esq. and Paul Blake, Esq. COPELAND, COOK, TAYLOR & BUSH P. 0. Box 6020 Ridgeland, MS Attorneys for Appellee THIS, the 8 1 h day of August, Isl Joltn H. Stevens John H. Stevens 5