IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO.2015-CA-00903

E-Filed Document May 23 2016 10:57:29 2015-CA-00903-COA Pages: 13 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO.2015-CA-00903 MARKWETZEL APPELLANT VERSUS RICHARD SEARS APPELLEE APPEAL FROM THE CIRCUIT COURT OF HARRISON COUNTY, MISSISSIPPI CAUSE NO. A2402-14-183 APPELLANT'S MOTION FOR RECONSIDERATION JAMES K. WETZEL, ESQUIRE (MS Bar No. 7122) GARNER J. WETZEL, ESQUIRE (MS Bar No. 103596) JAMES K. WETZEL & ASSOCIATES Post Office Offiee Box I Gulfport, MS 39502 (228) 864-6400 (ofc) e) (228) 863-1793 (fax) ATTORNEYS FOR APPELLANT

CERTIFICATE OF INTERESTED PARTIES 1. Mark Wetzel, Plaintiff/ Appellant 2. Richard H. Sears, Defendant/ Appellee 3. Honorable Judge Gaston Hewes, Jr., County Court of Harrison County, Second Judicial District, Biloxi, Mississippi 4. Honorable Roger Clark, Circuit Court of Harrison County, Second Judicial District, Biloxi, Mississippi 5. James K. Wetzel, Esquire, counsel for Plaintiff/Appellant 6. Donald C. Doman, Jr., Esquire, counsel for Defendant/Appellee. i

TABLE OF CONTENTS PAGE NO. CERTIFICATE OF INTERESTED PERSONS... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii STATEMENT OF THE ISSUES... 1 STATEMENT OF THE CASE... 2 SUMMARY OF ARGUMENT... 4 ARGUMENT... 5 I. The Court of Appeals erred as a matter of law by ignoring prior case law and by failing to require the trial court to define what acts of Plaintiff would constitute contributory negligence in its jury instructions...... 5 CONCLUSION... 9 CERTIFICATE OF SERVICE... 10 ii

TABLE OF AUTHORITIES CASES: PAGE NO: City of Jackson v. Copeland 490 So.2d 834 (Miss. 1986) """""""""""""""""""""""""""""""""""""""""""""" 4, 5 Trainer v. Gibson 360 So.2d 332,1226 (Miss. 1978)... 4,5,6,8 Jones v. Craft 218 So.2d 727 (Miss. 1969)... 4, 6 Rayborn v. Freeman 209 So.2d 193 (Miss. 1968)... 4, 6 Gore v. Patrick 150 So.2d 1699 (Miss. 1963)....4, 5, 6 Akin v. Cowie 405 So.2d 903, 907 (Miss. 1981)... 5,6 111

STATEMENT OF THE CASE A. Course of Proceedings and Disposition. This is a Motion for Rehearing of the Court of Appeals' May 10, 2016 opinion affirming the. Circuit Court of Harrison County's ruling denying Plaintiff s Motion for Judgment Notwithstanding the Verdict and Alternatively Motion for New Trial on Damages. The Plaintiff, Mark Wetzel, hereinafter referred to as "WETZEL", was rear-ended in an automobile collision and the issue of damages was tried before a jury on January 14-15, 2014. The jury verdict was returned in favor of Plaintiff, Mark Wetzel, in the amount of Thirty One Thousand One Hundred Eighty Dollars and Forty-Five Cents ($31,180.45). Feeling aggrieved, Wetzel appealed citing reversible error was committed by the trial court in the granting of certain jury instructions, or lack thereof. Wetzel would further aver that reversible error was also committed by the trial court in denying Wetzel's Motion for New Trial and/or Motion Notwithstanding the Verdict because the jury verdict was so inadequate as to indicate bias, prejudice or passion on the part of the jury and was contrary to the overwhelming weight of the credible evidence. A hearing was held and arguments were heard on April 9, 2015 in the Circuit Court of Harrison County. On May 29,2015, the Circuit Court Judge issued his order affirming the County Court's Jury Instructions and affirmed the denial of new trial or additur. Feeling aggrieved, Wetzel filed his appeal brief to the Mississippi Supreme Court, requesting the Honorable Court to reverse and remand this matter for a new trial on the merits to the County Court of Harrison County, Second Judicial District. The Court of Appeals affirmed 2

the Circuit Court order denying the Plaintiffs motion on May 10, 2016. Plaintiff/Appellant comes now before this Honorable Court and files his Motion for Rehearing. Wetzel submits to this Honorable Court that the Court of Appeals has misapplied long standing Mississippi case law. Wetzel is entitled to a reversal and remand of this matter for a new trial on the merits to the County Court of Harrison County, Second Judicial District. B. Statement of Relevant Facts. The evidence, exhibits and testimony all illustrate that the Plaintiff, Mark Wetzel, was involved in an automobile collision around 3:00 p.m. on March 21, 2012. Wetzel was traveling northbound on Cedar Lake Road in Biloxi, Mississippi and the Defendant, Richard Sears, was also traveling northbound on Cedar Lake Road directly behind Wetzel. Wetzel was stopped in traffic waiting for the left turning lane to clear when suddenly and without warning, Sears collided into the back of Wetzel's automobile. Wetzel immediately incurred pain in his neck, back and left side. Wetzel was transported by ambulance to emergency room at Biloxi Regional Medical Center where he was seen and discharged and told to follow up with his primary care physician. Wetzel followed up with Dr. Paul Pavlov who referred him to Dr. Tim Murphy, Chiropractor, who treated him with 26 sessions of chiropractic treatment. Dr. Tim Murphy referred Wetzel to Dr. Joe Jackson for additional neurological workup and treatment. Wetzel incurred medical bills in the amount of $28,166.36; lost wages in the amount of $4,380.16; a towing bill of $65.00; and $176.16 in mileage expenses to and from his physicians. The total economic damages incurred by Wetzel were $32,787.68. 3

SUMMARY OF THE ARGUMENT This Honorable Court has misapplied the prior Mississippi Supreme Court Case law. Upon closer review, this Honorable Court will surely be persuaded that it has erred in application of the law to the facts at hand. The language by the Mississippi Supreme Court in City of Jackson v. Copeland, 490 So.2d 834 (Miss 1986) and Trainer v. Gibson, 360 So.2d 1226 (Miss. 1978) could not be any clearer. In Trainer, the court stated, "We have stated on several occasions that an instruction charging negligence or contributory negligence must define those acts which would constitute such. Jones v. Craft, 218 So.2d 727 (Miss.l969); Rayborn v. Freeman, 209 So.2d 193 (Miss.l968); Gore v. Patrick, 246 Miss. 715,150 So.2d 169 (1963)". The Mississippi Supreme Court in City of Jackson v. Copeland, 490 So.2d 834 (Miss. 1986) reversed the case and remanded for a new trial because the court did not present the jury with an instruction stating what facts would constitute contributory negligence. The court stated, "a jury may reduce an award by taking into account any contributory negligence, but only in two situations. The first is when the jury is properly instructed as to those facts constituting contributory negligence." Id. at 839. The Court of Appeals ignored established jurisprudence and prior Mississippi Supreme Court case law. Feeling aggrieved, Wetzel petitions this Honorable Court to reconsider its decision and order of May 10, 2016. 4

ARGUMENT I. THE COURT OF APPEALS ERRED AS A MATTER OF LAW BY IGNORING PRIOR CASE LAW ANDBY FAILING TO REQUIRE THE TRIAL COURT TO DEFINE WHAT ACTS OF PLAINTIFF WOULD CONSTITUTE CONTRIBUTORY NEGLIGENCE IN ITS JURY INSTRUCTIONS. This Motion for rehearing is filed in an attempt to respectfully request this Honorable Court to reconsider its opinion of May 10, 2016 as this Honorable Court of Appeals has erroneously ignored established case law and precedent. In order to properly instruct a jury on the issue of contributory negligence, the trial judge MUST TELL the jury what facts would constitute contributory negligence by the plaintiff. (emphasis added) Akin v. Cowie, 405 So.2d 903, 907 (Miss. 1981); Gore v. Patrick, 150 So.2d 169, 171 (Miss. 1963). The Mississippi Supreme Court in City of Jackson v. Copeland, 490 So.2d 834 (Miss. 1986) reversed the case and remanded for a new trial because the court did not present the jury with an instruction stating what facts would constitute contributory negligence. The court stated, "a jury may reduce an award by taking into account any contributory negligence, but only in two situations. The first is when the jury is properly instructed as to those facts constituting contributory negligence." [d. at 839. In City of Jackson v. Copeland, motorist Copeland was injured by a garbage truck and the court entered a judgment on verdict for motorist. The Supreme Court reversed and granted a new trial, finding that eversible error was committed in failing to present the jury with an instruction stating what facts would constitute negligence and, hence, with what facts would enable the jury to reduce motorist's award of damage by reason of contributory negligence. 5

The Court reasoned and gave an in depth explanation of Trainer v. Gibson, 360 So.2d 1226 (Miss. 1978). In Trainer, which was an automobile personal injury case, the jury found both the plaintiff and defendant guilty of negligence and awarded the plaintiff $10,000.00 in damages, from which the plaintiff appealed, contending it was reversible error to grant a contributory negligence instruction without defining what facts would constitute such negligence. The Mississippi Supreme Court, speaking through Justice Walker, affirmed the lower court on the question of the Defendant's liability, but remanded the case for a new trial on the question of the contributory negligence of the Plaintiff and damages. The basis of the Court's decision was that the instruction complained of failed to state the facts that the jury must have found in order to constitute negligence. (Miss.l981). The Court stated: "We have stated on several occasions that an instruction charging negligence or contributory negligence must define those acts which would constitute such. Jones v. Craft, 218 So.2d 727 (Miss.l969); Rayborn v. Freeman, 209 So.2d 193 (Miss.l968); Gore v. Patrick, 246 Miss. 715,150 So.2d 169 (1963)". Trainer, 360 So.2d at 1228; see also Akin v. Cowie, 405 So.2d 903, 906-07 In the case at bar, the trial court did not define those acts which would constitute contributory negligence. In the trial in this matter the Court gave the following instructions: P-2 "The Court instructs the Jury that the Defendant, Richard H. Sears, was negligent as a matter oflaw in the operation of his vehicle on March 21, 2012. Therefore, you shall return a verdict for the Plaintiff on the issue of liability in this case in accord with the instructions given by the Court. 6

The only issue remaining for you to decide is what amount of damages, if any, you believe that the Plaintiff has proven by the preponderance of the evidence that he sustained and were proximately caused by Richard H. Sears' negligence on the date in questions." D-4 "In this case, the Defendant contends that the Plaintiff was guilty of negligence in the operation of his vehicle at the time of the subject accident which was a contributing cause of the accident. The burden of proving this defense by preponderance of the evidence rests upon the Defendant. In order to establish this defense, the Defendant must prove by a preponderance of the evidence that the Plaintiff failed to use "reasonable care in the operation of his motor vehicle at the time of the accident and that" such failure, if any, was a proximate contributing cause of the accident. (emphasis added) If you find from a preponderance of the evidence that the Plaintiff failed to "use reasonable care" in the operation of his vehicle on March 21,2012 and that such failure, if any, was a proximate contributing cause of the accident, then the rule of comparative negligence will apply as explained to you in other instructions." (emphasis added) D-5 "Should you find that both the Plaintiff and the Defendant were guilty of negligence at the time of the accident on March 21, 2012, and that the negligence of both parties combined to cause the Plaintiff's accident and injuries, the rule of comparative negligence will apply. If you find from a preponderance of the evidence that both parties were negligent, you should determine the percentage of negligence that you attribute to the Plaintiff and reduce the Plaintiff's damages, if any, in proportion to his negligence, if any." D-6 "You are instructed that while operating his motor vehicle on Cedar Lake Road, the Plaintiff was under a duty to keep his vehicle under proper control and to drive at a speed which was reasonable and prudent under the exiting conditions. 7

Therefore, if you find from a preponderance of the evidence in this case that: (1) The Plaintiff was not driving at a reasonable and prudent rate of speed in view of existing conditions, but instead brought his vehicle to a stop in the traveled lane of Cedar Lake Road; and (2) That action, if any, was a proximate contributing cause of Plaintiffs injuries; then the rule of comparative negligence will apply as explained to you in other instructions." There were no instructions offered by the Court or the Defendant, Richard Sears, that attempted to inform the jury of what facts constitutes negligence even despite Plaintiffs strenuous objection during the selection of Jury Instructions. As required in Trainer v. Gibson, supra, and those cases following it, the jury must be instructed as to the facts constituting such contributory negligence, and, if not, reversible error has been committed. "If Plaintiff failed to use reasonable care," in and of itself is not a definable duty. It does not define any specific rules of the road or statutory duty. Therefore, Appellant, Mark Wetzel, would respectfully request this Honorable Court to rehear and reconsider the opinion and reverse and remand this case to the County Court for a new trial. Wetzel would submit to this Honorable Court that after the foregoing is reviewed in its entirety, this Court will be left with the clear and firm conviction that a mistake has been made by the Court of Appeals in their application of established jurisprudence. 8

CONCLUSION Appellant would respectfully request this Honorable Court to reconsider its May 10, 2016 opinion in light of the facts and law that it failed to consider in its earlier opinion. RESPECTFULLY SUBMITTED, this the 23rd day of May, 2016. MARK WETZEL, APPELLANTS By: s:/garner J. WETZEL S:/JAMES K. WETZEL 9

CERTIFICATE OF SERVICE I, undersigned counsel, hereby certify that I have this day electronically filed the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Donald Doman, Jr., Esquire, attorney for Defendant. A copy is being mailed via United State Post Office to the Honorable Gaston Hewes, Jr., County Court Judge, at his mailing address of Post Office Box 973, GulfPort, MS 39502 and Honorable Roger Clark, Circuit Court Judge, at his mailing address of Post Office Box 1461, GulfPort, MS 39502. DATED this the 23 rd day of May, 2016. s:/garner J. WETZEL s:/james K. WETZEL JAMES K. WETZEL & ASSOCIATES James K. Wetzel (MSB No. 7122) jkwetzel@wetzellawfirm.com Gamer J. Wetzel (MSB No. 103596) gjwetzel@wetzellawfirm.com Post Office Box I Gulfport, MS 39502 (228) 864-6400 (of c) (228) 863-1793 (fax) ATTORNEYS FOR PLAINTIFF/APPELLANT 10