APPELLEES MOTION FOR REHEARING

E-Filed Document Jun 21 2016 15:53:08 2014-CA-01613-COA Pages: 20 IN THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2014-CA-01613 TERRY E. HARRIS vs. EDDIE MICHAEL, JR., AND BELLSOUTH TELECOMMUNICATIONS, LLC DBA AT&T MISSISSIPPI APPELLANT APPELLEES APPEAL FROM THE CIRCUIT COURT OF LAMAR COUNTY, MISSISSIPPI APPELLEES MOTION FOR REHEARING RICHARD O. BURSON, MS BAR #7580 KATHERINE B. SUMRALL, MS BAR #104668 BURSON ENTREKIN ORR MITCHELL & LACEY, PA 535 North Fifth Avenue (39440) Post Office Box 1289 Laurel, Mississippi 39441 Telephone: 601-649-4440 Facsimile: 601-649-4441 Email: burson@beolaw.com ksumrall@beolaw.com Attorneys for Eddie Michael, Jr. and Bellsouth Telecommunications, LLC

CERTIFICATE OF INTERESTED PARTIES The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Judges of the Mississippi Court of Appeals may evaluate possible disqualification or recusal: 1. Terry Harris, Appellant; 2. Eddie Michael, Jr., Appellee; 4. BellSouth Telecommunications, LLC, Appellee; 5. Chase Ford Morgan and Len Melvin, counsel for Appellant, Terry Harris; 6. Richard O. Burson and Katherine B. Sumrall, counsel for Appellees, Eddie Michael, Jr., and BellSouth Telecommunications, LLC; and 7. Honorable Judge Anthony A. Mozingo. SO CERTIFIED, this the 21 st of June, 2016. s/richard O. Burson RICHARD O. BURSON ii

TABLE OF CONTENTS CERTIFICATE OF INTERESTED PARTIES TABLE OF CONTENTS TABLE OF AUTHORITIES ii iii iv STATEMENT OF THE ISSUES 1 STATEMENT OF THE CASE 1 SUMMARY OF ARGUMENT 4 ARGUMENT AND LAW 5 I. WHEN CONSIDERING AND APPLYING MISS. CODE ANN. 63-3-805 TO THE TESTIMONY PRESENTED ON BEHALF OF THE APPELLANT, NO REASONABLE JUROR COULD FIND THAT MR. MICHAEL WAS NEGLIGENT. 5 II. WHEN APPLYING THE WELL-ESTABLISHED LEGAL PRECEDENT REGARDING THE STANDARD TO FIND THAT AN INFERENCE IS REASONABLE, THIS PANEL SHOULD FIND THAT APPELLANT FAILED TO ESTABLISH ENOUGH EVIDENCE FOR A REASONABLE JUROR TO BELIEVE THE APPELLEES WERE NEGLIGENT 8 CONCLUSION 13 iii

TABLE OF AUTHORITIES STATE CASES Blizzard v. Fitzsimmons, 193 Miss. 484, 494-5 (Miss. 1942) 9 Dogan v. Hardy, 587 F.Supp. 967 (N.D. Miss. 1984) 5 Perkins v. Star Transp. Inc., 75 So.3d 1065 (Miss. Ct. App. 2011) 5 Rudd v. Montgomery Elevator Co., 618 So. 2d 68, 72-73 (Miss. 1993) 9, 10 Solanki v. Ervin, 21 So. 3d 552, 556 (Miss. 2009) 5 State Farm Auto Ins. Cos. v. Davis, 887 So. 2d 192 (Miss. App. 2004) 10 STATUTES Miss. Code Ann. 63-3-805 1, 5, 8 RULES Miss. R. App. P. 40 1, 14 iv

STATEMENT OF THE ISSUES ASSERTED BY APPELLEES TO MERIT EN BANC CONSIDERATION BellSouth Telecommunications, LLC and Eddie Michael respectfully move pursuant to Miss. R. App. P. 40 for Rehearing of this Panel s decision to reverse and remand the directed verdict rendered by the trial court. Appellant, Terry Harris, brought the underlying appeal from an order granting the Motion for Directed Verdict made by BST and Eddie Michael, Jr., in this intersection collision case. 1 The motion was granted after Harris failed to meet his burden of proof. The following issues are worthy for en banc consideration: 1. Whether the Panel failed to consider and apply Miss. Code Ann. 63-3-805 regarding preemption of the subject intersection. 2. Whether the Panel failed to consider precedent requiring more than mere speculation to find that a reasonable inference might be made in light of the complete absence of proof that the BST truck caused the subject accident, even considering all evidence in the light most favorable to the Plaintiff. STATEMENT OF THE CASE On the morning of June 10, 2010, Mr. Harris was a passenger in a vehicle owned by Lamar County, and being driven by Robert Madden, a long-time county employee. 2 The Lamar County vehicle in question was a large trash truck with an arm boom utilized for picking up large debris. 3 At the time of the subject collision, both Mr. Madden and Mr. Harris were in the course and scope of their employment with Lamar County. 4 Likewise, Mr. Michael was in the course and scope of his employment with BST at the time of the accident. 5 Mr. Michael was driving a 1 R. Vol. 6, pp. 652-53. 2 T. vol. 2, p. 279, l. 26 - p. 280, l. 19. 3 Id. at p. 241, ll. 13-17. T. p. 281, ll. 6-27. 4 Id. at p. 280, ll. 15-19. 5 Id. at p. 216, ll. 19-27. 1

Chevrolet 2500 pickup truck owned by BST, and the truck was towing behind it a dual-axle trailer loaded with a boring tool. 6 Just beforee the accident, the Harriss vehicle was travelling eastbound on Shears Road in Lamar County, and the BST vehicle was travelling southbound on Weathersby Road in Lamar County. 7 The accident at issue occurred around 10:06 a.m.; weather and visibility were good. 8 The intersection of Weathersby and Shears Road is controlled by a four-way stop (a copy of trial exhibit D-6 follows). 9 6 Id. at p. 218, ll. 2-9; T. p. 238, ll. 10-13. 7 Id. at p. 282, l. 2-9; T. p. 240, ll. 7-20; T. p. 241, ll. 2-4. See also, Trial Exhibits P-19, D-6, and D-7. 8 Id. at p. 241, ll. 18-26. 9 Trial Exhibits P-19, D-6, and D-7. 2

The intersection is remarkable for the fact that the intersecting road from the east (Hillcrest Drive) is slightly offset to the north of Shears Road. 10 This means that the stop sign for southbound traffic on Weathersby Road is located some distance to the north of the northern edge of Weathersby Road. 11 It further means that a southbound vehicle which comes to a full and complete stop at the stop sign would rightfully occupy and preempt the subject intersection for a significant amount of time and distance before the intersection is finally clear for travel from eastbound traffic on Shears Road. 12 Because of the configuration and surroundings at the intersection, approaching southbound vehicles on Weathersby Road are visible for quite a distance as they come to the intersection. 13 On the morning in question, the BST truck was southbound at the stop sign and had to proceed through the long stretch of intersection on the date of the accident. 14 The truck occupied by Mr. Harris was executing a wide right turn off Shears Road, heading southbound on Weathersby Road, when the left, front portion of the Lamar County truck struck the rear axle of the BST trailer on the passenger side. 15 Once the police investigation was concluded, Mr. Madden and Mr. Harris continued on with the work day without further incident. 16 BST heard nothing further regarding this incident until suit was filed in August 2012, nearly three (3) years later. 17 At the trial underlying this appeal, Mr. Harris called Mr. Madden and Mr. Michael as witnesses, the latter adversely. Mr. Harris also testified in support of his case. Despite the 10 Id. See also, T. 233, ll. 26-28. 11 Trial Exhibits, P-19, D-6 and D-7. 12 Id. 13 T. p. 239, ll. 16-21. Q: Is there anything to hinder or obstruct one s view looking back north along Weathersby Road? A: No, sir. Q: How far back can you see? A: Almost all the way to Lowe s. See also, Trial Exhibit, D-7. 14 T. vol. 2, p. 233, ll. 9-16. 15 Id. at p. 283, ll. 4-13. 16 Id. at p. 292, ll. 10-12; see also, T. vol. 2, p. 290, ll.18-21. 17 Harris Complaint in this action was filed on August 28, 2012. R. vol. 2, pp. 8-14. See also, R. vol. 6, p. 618. 3

testimony of three (3) witnesses and the documentary evidence putatively supporting his theory of liability against BST and Mr. Michael, Mr. Harris failed to bring sufficient evidence to create a question of fact for the jury on liability, even taking all testimony as true and giving Mr. Harris all reasonable inferences. Accordingly, at the close of Mr. Harris case-in-chief, counsel for BST and Mr. Michael moved for a directed verdict, specifically addressing the insufficient evidence supporting Mr. Harris claim. 18 After hearing from both sides and considering the evidence presented, the trial court properly granted BST and Mr. Michaels Motion for Directed Verdict. 19 On November 12, 2014, Mr. Harris filed his Notice of Appeal. Following submission of briefs by both parties, on June 7, 2016, the Mississippi Court of Appeals, sitting en banc, rendered its decision to reverse the determination of the trial court that directed verdict was properly granted and to remand this cause for a new trial. The majority cited that reasonable minds could differ as to whether Mr. Michael was negligent 20 as its reasoning for reversing the decision of the trial court. SUMMARY OF THE ARGUMENT Even taking all testimony on behalf of the Appellant as true, along with all reasonable inferences, Terry Harris wholly failed to present sufficient evidence of the liability of BST and Mr. Michael. It is undisputed that neither Mr. Harris nor Mr. Madden saw the BST truck before the moment of impact, and testimony of both Mr. Harris and the driver of the Lamar County Truck, Mr. Robert Madden, establishes that the BST truck occupied the intersection at the time of the subject collision. Accordingly, there is no legally acceptable basis for a reasonable juror to find that the BST truck did not preempt the intersection before the trailer being pulled by the 18 T. vol. 3, p. 344, l. 15 p. 353, l. 22. 19 Id. at p. 355, l. 5- p. 357, l. 7. 20 See Opinion of the Mississippi Court of Appeals, 8, a copy of which is attached as Exhibit A. 4

BST truck was impacted by the left, front bumper of the Lamar County truck. Respectfully, the majority opinion of the Court of Appeals appears to have failed to consider the utter absence of proof that Mr. Michael breached any duty to Mr. Harris, certain overwhelming physical evidence, and the long-standing precedent regarding what constitutes a reasonable inference in its opinion reversing the grant of directed verdict by the trial court. ARGUMENT AND LAW I. WHEN CONSIDERING AND APPLYING MISS. CODE ANN. 63-3-805 TO THE TESTIMONY PRESENTED ON BEHALF OF THE APPELLANT, NO REASONABLE JUROR COULD FIND THAT MR. MICHAEL WAS NEGLIGENT. Miss. Code Ann. 63-3-805 provides that: The driver of a vehicle shall stop as required by this chapter at the entrance to a through highway and shall yield the right-of-way to other vehicles which have entered the intersection from said through highway or which are approaching so closely on said through highway as to constitute an immediate hazard. However, said driver having so yielded may proceed and the drivers of all other vehicles approaching the intersection on said through highway shall yield the right-of-way to the vehicle so proceeding into or across the through highway The driver of a vehicle shall likewise stop in obedience to a stop sign as required by this chapter at an intersection where a stop sign is erected at one or more entrances thereto although not a part of a through highway and shall proceed cautiously, yielding to vehicles not so obliged to stop which are within the intersection or approaching so closely as to constitute an immediate hazard, but may then proceed. 21 The majority opinion quotes Solanki v. Erwin as the proper standard for a decision to grant directed verdict where it quotes, [t]he trial judge is to look solely to the testimony on behalf of the party against whom a directed verdict is requested. 22 Based solely upon the testimony of Mr. Madden and Mr. Harris, this Panel can find that even if a reasonable juror could somehow infer, contrary to the physical evidence and sworn testimony of Mr. Michael consistent with the physical evidence, that Mr. Michael ran the stop sign, it is clear beyond reasonable doubt that the 21 Miss. Code Ann. 63-3-805 (emphasis added). See also, Dogan v. Hardy, 587 F.Supp. 967 (N.D. Miss. 1984); Perkins v. Star Transp. Inc., 75 So.3d 1065 (Miss. Ct. App. 2011). 22 Op. p. 3, 6, quoting Solanki v. Erwin, 21 So.3d 552, 556 ( 8)(Miss. 2009). 5

BST truck preempted the intersection such that the liability is still Mr. Madden s for failing to yield the right-of-way. Neither Mr. Harris, nor Mr. Madden, testified that they saw the BST truck at any point before the very moment of impact meaning there is no testimony or evidence whatsoever to suggest that Mr. Michael ran the stop sign, or breached any duty whatsoever to Mr. Harris. 23 In fact, Mr. Harris testified on direct that after Mr. Madden waved a red car through the intersection, he did not see any other vehicles besides his own at the intersection. 24 Later, Mr. Madden was asked about the location of the BST truck before and during the time of impact, and he testified as follows: Q. And at the time of the impact the BellSouth truck, not the trailer, but the truck had made it all the way through the intersection? A. As far as I know. Like I say, I didn t get to see either one of them. 25 Mr. Harris also testified on multiple occasions that the BST truck was already in and/or had passed through the intersection at the time of the impact, once stating that he saw the BST truck all in the course 26 as it came through the intersection. Mr. Harris testified further about the BST truck being in the intersection as follows: Q. How do you know that Mr. Michael was holding a cellphone in front of him? A. I can see him when he passed. 27... Q. So your testimony today is that you saw him before the accident with the cell-phone in his hand? A. No. He passed through the intersection and I seen the cell-phone in his hand. 28... 23 T. vol. 2, p. 283, ll. 21-26; Id. at p. 269, ll. 11-14. 24 Id. at p. 282, l. 25 p. 283, l. 3. 25 Id. at p. 272, ll. 4-8. 26 T. Vol. 3, p. 302, ll. 16-21. 27 T. Vol. 2. p. 286, ll. 26-28. 28 T. Vol. 3, p. 302, ll. 16-19. 6

Q. When you saw Mr. Michael holding his cell-phone as you've testified, can you describe when that observation took place as it relates to when the impact occurred? A. He were passing through. 29 Finally, Mr. Michael testified that, consistent with the physical evidence, he stopped fully at the stop sign and looked before proceeding into the clear intersection. 30 There is no evidence in the record to the contrary. None. Using the standard espoused by the Majority in its Opinion reversing the grant of directed verdict, the trial court was clearly able to properly conclude that the BST truck was present in or had completely passed through the subject intersection based solely on the testimony of the Plaintiff s witnesses. This testimony for Plaintiff made clear that the BST truck preempted the intersection such that the Lamar County truck in which Mr. Harris was riding failed in its duty to yield the right of way when it struck the trailer being pulled by the BST truck. Two facts which establish that the BST truck legally preempted the subject intersection are undisputed: (1) Mr. Madden had just begun to turn into the intersection when the impact occurred 31 and (2) the BST truck had already made it through the intersection when the impact occurred. 32 Accordingly, the trailer being pulled by the BST truck sustained the impact. 33 The mere fact that the Lamar County truck struck the trailer being pulled by the BST truck, and then only after the BST truck had cleared the intersection itself, establishes beyond reasonable argument that the BST truck and trailer had lawfully occupied and preempted the intersection. Therefore, Mr. Madden was obligated to allow the BST truck and trailer to completely 29 Id., at P. 331, ll. 19-23. 30 T. Vol. 2, p. 223, ll. 8-15. 31 Id. at p. 285, ll. 4-6. See also, T. vol. 2, p. 269, ll. 7-20. And see, Trial Exhibit D-6. 32 Id. at p. 249, ll. 1-3. See also, Trial Exhibit D-6. 33 Id. 7

clear the intersection before proceeding. 34 This he failed to do, meaning that Mr. Madden s negligence was the sole cause of this accident. 35 Even if a reasonable juror could somehow infer (ignoring the absence of any evidence and the undisputed testimony to the contrary) that Mr. Michael ran the stop sign and even if a reasonable juror takes Mr. Harris testimony regarding cell-phone usage as credible, it is clear beyond reasonable doubt that the BST truck preempted the intersection such that the liability is still solely upon Mr. Madden for failing to yield the right-of-way. 36 To find otherwise is contrary to the plain language of the statute and the common sense rules of the road. Once a party has preempted an intersection, the other driver should not be able to create a fact question about the preempting party s alleged negligence simply by carelessly proceeding into the intersection, heedless of the preempting vehicle. Because it is undisputed by the testimony in support of the Appellant that the BST truck was in and/or through the subject intersection at the time of impact and, therefore, the BST truck legally preempted the intersection, this Panel should reconsider its decision reversing the trial court s grant of directed verdict. II. WHEN APPLYING THE WELL-ESTABLISHED LEGAL PRECEDENT REGARDING THE STANDARD TO FIND THAT AN INFERENCE IS REASONABLE, THIS PANEL SHOULD FIND THAT APPELLANT FAILED TO ESTABLISH ENOUGH EVIDENCE FOR A REASONABLE JUROR TO BELIEVE THE APPELLEES WERE NEGLIGENT. Review of the majority opinion reveals that the reasoning for its reversal of the trial court s grant of directed verdict is that viewing the evidence in the light most favorable to Mr. Harris, reasonable minds could differ as to whether Mr. Michael was negligent. 37 Notably, 34 Miss. Code Ann. 63-3-805. See also, photographic evidence of location of damage to vehicles at Trial Exhibit D-4. 35 Miss. Code Ann. 63-3-805. 36 Id. 37 Op. p. 4, 8. 8

however, legal precedent regarding the parameters of what constitutes a reasonable inference simply does not stretch to the length required for a juror to conclude that Mr. Michael was negligent. Since 1942, the Mississippi Supreme Court has held that no judgment in a court of law may be sustained when resort to conjecture or surmise is necessary in order to arrive at the conclusions embraced in the judgment. 38 The Mississippi Supreme Court in Blizzard specified further that the rule is that no recovery can be had where there is no showing from which it can be determined which of several possible causes produced the injury where some of the causes did not involve negligence of the party charged. 39 In Rudd v. Montgomery Elevator Co., 40 Rudd filed suit against the elevator company alleging negligent maintenance following his receipt of injuries during an elevator malfunction. 41 Affirming the trial court s decision to grant a J.N.O.V., the Mississippi Supreme Court further explained the distinction between inference and speculation, stating, [i]t might very well be true that Hincks somehow missed seeing a misalignment of the roller on November 11, just as it might be true that Montgomery could have rendered better maintenance and repair service... It was incumbent upon Rudd, however, to offer something beyond pure speculation that there was negligence of this nature and that it in fact caused the malfunction. 42 This Panel is faced with testimony strikingly similar to that in Rudd. Mr. Harris argues that though neither he nor the driver, Mr. Madden, saw the BST truck before impact, Mr. Michael must have run the stop sign. 43 Mr. Harris presented no affirmative evidence whatsoever 38 Blizzard v. Fitzsimmons, 193 Miss. 484, 494-5 (Miss. 1942). 39 Id. at 494. 40 Rudd v. Montgomery Elevator Co., 618 So.2d 68, 72-73 (Miss. 1993). 41 Id. at p. 69. 42 Id. at p. 73. 43 App. Brief, p. 12; Mr. Harris testified that, as an eyewitness to the accident, he believed that Mr. Michael ran the stop sign. 9

other than his own speculation to support that conjecture. Just as in Rudd, this Court has a lack of evidence coupled with conjecture on one side and affirmative evidence to the contrary on the other. And, just as in Rudd, Mr. Harris failed to offer something beyond pure speculation that there was negligence of this nature and that it in fact caused the malfunction [accident]. 44 As in State Farm Auto Ins. Cos. v. Davis, 45 no reasonable juror would conclude, taking all testimony for the Appellant as true, that Mr. Madden met the minimal standard of care, where he looked, saw nothing coming, and turned into the intersection where he impacted the rear right axle of the trailer being pulled by a vehicle both Mr. Madden and the Appellant himself testified had already proceeded through the intersection. At trial, Mr. Harris merely presented the jury with one of a number of possibilities about how the two vehicles came to impact one another in the subject intersection and the only possibility which is consistent with Mr. Harris theory that the BST truck was negligent amounts to nothing but mere speculation. Respectfully, to accept the Majority s view of the case, one must ignore: (1) the undisputed photographic and testimonial evidence regarding the location of impact and damage which both clearly prove that the Lamar County truck pulled into the intersection already lawfully occupied by the BST trailer; (2) the fact that there are clear sight lines well to the north, which means that Mr. Madden would have had every opportunity to see the BST truck if he had been keeping a proper lookout; and, (3) the fact that there is no witness, no document, indeed not one shred of evidence in this record to demonstrate that Mr. Michael was speeding, ran a stop sign, or did anything wrong. 44 Rudd, 618 So.2d at 73. 45 887 So.2d 192 (Miss. App. 2004). 10

The trial court had before it affirmative testimony from both passengers in the Lamar County truck that they never saw the BST truck before impact. 46 Mr. Harris, himself, corroborated that the damage was to the trailer being pulled behind the BST truck. 47 The trial court had undisputed testimony from Mr. Madden that this accident was likely his own fault because he never saw Mr. Michael or the BST truck, 48 and Mr. Madden s testimony that the accident should have been his fault was corroborated by Mr. Michael through the statements Mr. Madden and Mr. Harris made to Mr. Michael at the scene following the accident. 49 The trial Court also had before it evidence submitted by Mr. Harris and confirmed in his testimony that the subject intersection is an off-set intersection. Further, Mr. Madden testified confirming the accuracy of the following map 50 introduced and admitted into evidence by the Plaintiff: 46 T. vol. 2, p. 283, ll. 14-26. See also, Id. at p. 271, ll. 19-20. 47 Id. at p. 290, ll. 11-12. 48 Id. at p. 271, ll. 11-20. 49 Id. at p. 243, ll. 7-18. 50 Trial Exhibit, P-20; see also, T. Vol. 2. P. 282, ll. 2-24. 11

Clearly, even Plaintiff s evidence presented in this matter supports that the majority opinion of the Court of Appeals should be reconsidered. In allowing this case to proceed to the jury, the Majority would have to believe that though his truck was so far away from the intersection that it was not visible as it approached, Mr. Michael somehow sped through the long, off-set intersection fast enough that he was able to beat the Lamar County truck making its turn such that the resulting impact occurred to the trailer being pulled by Mr. Michael and the left, front bumper of the Lamar County truck. 51 The Majority would have to maintain this belief even in light of affirmative evidence that the BST truck was pulling a trailer loaded with a heavy boring tool and GPS data admitted into evidence establishing that the BST truck was traveling a mere nine (9) miles per hour at the time of the accident. 52 Such a scenario is nothing short of a physical impossibility, and is certainly not a reasonable inference entitling Mr. Harris to submit his case to the jury. Moreover, it is plain that the undisputed physical facts of the accident are consistent with Mr. Michael s testimony that he stopped at the stop sign, 53 saw the Lamar County Truck approach the stop bar in the distance, 54 and proceeded into the intersection, 55 legally preempting the same. No reasonably minded juror could logically conclude, based on more than pure speculation, conjecture, or by anything more than simply choosing between any number of possible causes, that Mr. Michael was somehow negligent, even taking all of the testimony for Mr. Harris as true and giving him all reasonable inferences. 51 App. Brief, p. 15, p. 18. 52 See Trial Exhibit, D-8, GPS Data Printout from Eddie Michael s truck on June 10, 2010. See entry at 9:58:05 a.m.; see also, T. vol. 2, p. 249, ll. 4-28. 53 T. Vol. 2. p. 223, ll. 8-15. 54 Id. at p. 234, ll. 5-16. 55 Id. at p. 242, ll. 5-10 12

The testimony and facts in this case support that it is a physical impossibility for Mr. Michael to be at fault for an impact in the locations on the vehicles where it occurred. The only manner in which one could support an argument that Mr. Michael was somehow negligent requires speculation, conjecture, and ignorance of the logic suggested by the testimony for Mr. Harris and the physical evidence. For those reasons, this Panel should reconsider the Majority s decision to reverse and remand the trial court s grant of directed verdict. CONCLUSION Though it is without question that every Plaintiff deserves his day in Court, it is plain from the testimony on behalf of Mr. Harris and the physical evidence presented before the close of his case-in-chief, that no reasonable juror could conclude that Mr. Michael was negligent. In fact, Plaintiff did get his day in court, and, by the very own admission of the trial court, Mr. Harris received the benefit of decisions designed to allow his case to develop where an absence of proof likely should have determined the outcome. When giving his findings on the Motion for Directed Verdict, the trial court judge stated the following regarding his reasoning: When summary judgment arguments were made in the past, several months ago, this Court has a philosophy that summary judgment are not the rule, they are the exception. And I wanted to give the Plaintiff every opportunity to develop his case and have his day in court. 56 The trial court further explained his decision to grant directed verdict, stating: The fact that evidentiary rulings, which could have easily gone either way, were granted to the Plaintiff. And I think, a specific example before trial. The Supreme Court very well may have a lot to say about this Court s ruling on whether Mr. Madden and Mr. Harris were able to give their opinion as to what caused the accident. That s nevertheless, I am just trying to show you that not only did I allow the survival of summary judgment, but ruled that they could tell what they thought happened that caused the accident And another ruling that the Court gave the Plaintiffs that might have gone the other direction, the defendants, was allowing mention of this defendant s work 56 T. vol. 3, p. 344, ll. 11-17. 13

history. I felt like all of those things were this Court s effort for Eddie [sic] (the Plaintiff) to have his day in Court. 57 Neither Mr. Harris nor Mr. Madden saw the BST vehicle run the stop sign. Mr. Harris testified affirmatively multiple times that he saw the BST truck as it proceeded through the intersection. Mr. Madden testified that as far as he knew the BST truck had made it all the way through the intersection when the impact occurred. Both Mr. Harris and Mr. Madden identified the subject intersection, and undisputed maps admitted into evidence by Mr. Harris establish that the intersection is off-set such that a vehicle traveling the direction of the BST truck has farther to travel to reach the intersection than a vehicle traveling the direction of the Lamar County truck. GPS data admitted into evidence establishes that the BST truck was travelling only nine (9) miles per hour immediately preceding the subject impact. Finally, testimony by Mr. Harris, as well as photographs of the damaged vehicles admitted into evidence establish that the damage occurred to the left, front bumper of the Lamar County truck and the right, rear axle of the trailer being pulled by the BST truck. Given this evidence, there is no reasonable conclusion other than the BST truck preempted the subject intersection such that the Lamar County truck failed to yield the right-of-way when it impacted the trailer of the BST truck. Allowing this matter to be reversed and remanded for trial would call into serious question the amount of logic and evidentiary support, or lack thereof, which must be present to support a reasonable inference that could be reached by a juror in any future case. As a result of the foregoing legal precedent and statutory application and pursuant to Miss. R. App. P. 40(a), Appellees respectfully request that this Court reconsider its decision to 57 Id. at p. 355, l. 18 356, l. 8. 14

reverse and remand the trial court s grant of directed verdict. 58 Alternatively, should this Panel affirm its June 7, 2016 decision, the Appellees respectfully request that this Court rule that discovery should not be re-opened and that no additional claims may be added to this matter upon remand to the trial court. RESPECTFULLY SUBMITTED, this the 21 st day of June, 2016. EDDIE MICHAEL, JR. AND BELLSOUTH TELECOMMUNICATIONS, LLC d/b/a AT&T MISSISSIPPI By: s/ Richard O. Burson RICHARD O. BURSON, Their Attorney Richard O. Burson (MS Bar No. 7580) Katherine B. Sumrall (MS Bar No. 104668) BURSON ENTREKIN ORR MITCHELL & LACEY, P.A. 535 North 5th Avenue (39440) P.O. Box 1289 Laurel, Mississippi 39441-1289 Telephone: (601) 649-4440 Facsimile: (601) 649-4441 Email: burson@beolaw.com ksumrall@beolaw.com CERTIFICATE OF SERVICE I, Richard O. Burson, do hereby certify I electronically filed the foregoing with the Clerk of the Court using the MEC system, which sent notification of such filing to the following: Chase Ford Morgan, Esq. Melvin & Morgan P.O. Box 221 Hattiesburg, MS 39403-0221 58 Appellees do not request a rehearing on this Panel s decision regarding the motion in limine. 15

I further certify that I have sent this date mailed, via United States Mail, postage prepaid a true and correct copy of the above and foregoing to the following: Judge Anthony A. Mozingo Lamar County Circuit Court Judge P.O. Box Drawer 269 Purvis, MS 39475 This the 21 st day of June, 2016. s/ Richard O. Burson RICHARD O. BURSON 16