E-Filed Document Mar 21 2014 23:59:24 2013-CA-01200 Pages: 16 SUPREME COURT OF THE STATE OF MISSISSIPPI NO. 2013-TS-01200 HARVEY HALEY APPELLANT VS. ANNA JURGENSON; AGELESS REMEDIES FRANCHISING, LLC; AGELESS REMEDIES MEDICAL SKINCARE AND APOTHECARY; AND GEORGE E. ABRAHAM, III APPELLEES APPEAL FROM THE CIRCUIT COURT OF RANKIN COUNTY BRIEF IN SUPPORT OF APPELLANT HARVEY HALEY Darryl M. Gibbs (MSB No. 100232) Ashley L. Hendricks (MSB No. 104240) Chhabra & Gibbs, P.A. 120 North Congress Street, Suite 200 Jackson, Mississippi 39201 Telephone: (601) 948-8005 Facsimile: (601) 948-8010 Attorneys for Appellant, Harvey Haley ORAL ARGUMENT REQUESTED
SUPREME COURT OF THE STATE OF MISSISSIPPI NO. 2013-TS-01200 HARVEY HALEY APPELLANT VS. ANNA JURGENSON; AGELESS REMEDIES FRANCHISING, LLC; AGELESS REMEDIES MEDICAL SKINCARE AND APOTHECARY; AND GEORGE E. ABRAHAM, III APPELLEES APPEAL FROM THE CIRCUIT COURT OF RANKIN COUNTY CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that, in addition to those listed in the brief of Appellant Harvey Haley, the following persons have an interest in the outcome of the case. These representations are made in order that the Justices of the Supreme Court and/or Judges of the Court of Appeals may evaluate possible disqualification or recusal. 1. Harvey Haley, Appellant 2. Chhabra & Gibbs, P.A., attorneys of record for Appellants 3. Darryl M. Gibbs, attorney of record for Appellants 4. Ashley L. Hendricks, attorney of record for Appellants 5. Anna Jurgenson, Appellee 6. Ageless Remedies Franchising, LLC, Appellee 7. Ageless Remedies Medical Skincare and Apothecary, Appellee 8. Dr. George Abraham, III. Appellee 9. Markow Walker, P.A., attorneys of record for Appellees 10. Chris J. Walker, attorney of record for Appellee 11. M. Garner Berry, attorney of record for Appellee i
10. Judge John H. Emfinger, Rankin County Circuit Court Judge ii
TABLE OF CONTENTS Page CERTIFICATE OF INTERESTED PERSONS... ii TABLE OF CONTENTS... iii TABLE OF AUTHORITIES...v STATEMENT OF THE ISSUES...1 STATEMENT OF THE CASE...1 A. Nature of the case, the course of the proceedings, and its disposition in the court below...1 B. Statement of facts relevant to the issues presented for review...2 STANDARD OF REVIEW...3 SUMMARY OF THE ARGUMENT...3 ARGUMENT...4 I. The lower court improperly invaded the province of the jury when it granted summary judgment due to Haley s inconsistent statement...5 II. Even if summary judgment was proper as to the medical negligence action, Haley s remaining claims were improperly dismissed...7 CONCLUSION...8 CERTIFICATE OF SERVICE...10 iii
TABLE OF AUTHORITIES Cases: Page Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (Miss. 1986)...4 Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir 1969)...6 Bond v. Marion County Bd. Of Supervisors, 807 So. 2d 1208 (Miss. 2001)...3 Carroll v. Fort James Corp., 470 F.3d 1171 (5th Cir. 2006)...8 Certain Underwriters at Lloyd s of London v. Knostman, 783 So. 2d 694 (Miss. 2001)...3 Conrod v. Holder, 825 So. 2d 16 (Miss. 2002)...3 Doe v. Stegall, 757 So. 2d 201 (Miss. 2000)...7 Giles v. Brown, 962 So 2d 612 (Miss. 2006)...7 Hardy v. Brock, 826 So. 2d 71(Miss. 2002)...4 Howard v. City of Biloxi, 943 So. 2d 751 (Miss. 2006)...4 Hughes v. Ill. Cent. R.R. Co.,, 58 F. 3d 637 (S.D. Miss.1995)...7 Johnson v. City of Cleveland, 846 So. 2d 1031 (Miss. 2003)...4, 5 Knight v. Terrell, 961 So. 2d 30 (Miss. 2007)...3 Lee v. Golden Triangle Planning & Dev. Dist., Inc., 797 So. 2d 845 (Miss. 2001)...3 One South, Inc. v. Hollowell, 963 So. 2d 1156 (Miss. 2007)...4 iv
Stewart v. Hoover 815 So. 2d 1157 (Miss. 2002)...3 Treasure Bay Corp. v. Ricard, 967 So. 2d 1237 (Miss. 2007)...6 Tucker v. Hinds County, 558 So. 2d 869 (Miss. 1990)...4 Van v. Grand Gulf Casinos of Miss., Inc., 767 So. 2d 1014 (Miss. 2000)...4 Other Authorities: Miss. R. Civ. P. 56...4, 6 v
STATEMENT OF THE ISSUES I. Did the lower court incorrectly grant summary judgment in favor of Appelllees? II. Did the lower court incorrectly dismiss Appellant s remaining claims? STATEMENT OF THE CASE A. Nature of the case, the course of the proceedings, and its disposition in the court below. This is a negligence case brought by Harvey Haley (hereinafter Haley ) after Haley sustained injuries after Anna Jurgeson performed a procedure to remove pimples (R. at 12). On December 17, 2008, Haley suffered permanent injuries when Jurgenson negligently applied a laser device to Haley s face causing serious injury and severe pain. (R. at 14). Haley filed his original Complaint in the Circuit Court of Warren County, Mississippi on October 26, 2010 naming as defendants, Anna Jurgenson, Ageless Remedies Franchising, LLC; Ageless Remedies Medical Skincare and Apothecary; Dr. George E. Abraham, II, Chartis Casualty Company, Chartis Property Casualty Company; and John and Jane Does 1-10. (R. at 12). The Complaint alleged causes of action for alleging negligence, negligent training and supervision, medical negligence, negligent infliction of emotional distress, respondeat superior, and declaratory relief. Id. Anna Jurgenson, Ageless Remedies, and George Abraham answered and simultaneously moved to transfer venue to Rankin County Circuit Court. (R. at 42, 51). On December 29, 2010, Defendants Chartis Casualty Company and Chartis Property Casualty Company filed a Motion to Dismiss. (R. at 60). Chartis also moved to transfer venue on January 10, 2011. (R. at 96). On April 7, 2011, Judge Isadore Patrick issued an order transferring venue to Rankin County Circuit Court. (R. at 157). By separate order, Chartis Casualty Company and Chartis Property Casualty Company were dismissed as defendants. (R. at 155). On June 13, 2013, summary judgment was granted by order of the Circuit Court and the case dismissed with prejudice. (R. at 467). In the same order, Defendant s Motion to Strike Dr. 1
Faucett was dismissed as moot. Id. Haley timely filed his notice of appeal on July 12, 2013. (R. at 468). Haley now appeals the trial court's grant of summary judgment in this matter. B. Statement of facts relevant to the issues presented for review. Haley worked as a cosmetologist for Trio Spa and Salon. (R. at 14). On December 17, 2008 at approximately 1 p.m., Haley arrived at the Ageless Remedies Medical Skincare and Apothecary (hereinafter Ageless Remedies ) store location in Flowood, Mississippi. Id. Haley was there to leave the business cards of his employer, Trio Spa and Salon, at the facility. Id. While at Ageless Remedies, Haley spoke with Jurgenson, an aesthetician whom he had previously worked with at Trio Spa and Salon. (R. at 15). After learning that Haley was set to deliver the eulogy at his step father s funeral, Jurgenson offered to zap a spot or pimple on Haley s nose with a laser device. Id. Jurgenson assured Haley of the procedure s benefits and her skill with the procedure. Id. Jurgenson applied the laser to Haley s left cheek area. During the laser procedure, Haley inquired as to whether the procedure was supposed to hurt so much, to which Jurgenson responded that she knew what she was doing and had performed the procedure many times in the past. (R. at 15). Upon completion of the procedure, Jurgenson admitted that the laser burn was deeper than it should have been. Id. The procedure left obvious and noticeable scars on Haley s cheek and nose. Id. Following the procedure, when the pain from the procedure persisted, Haley contacted Jurgenson in regards to what to do. (R. at 248). Jurgenson admitted that she should not have done the procedure. Id. Jurgenson also reiterated her request that Haley not tell the doctor about the treatment she performed. Id. At the time of his injury, Haley derived income at rate of 60% commission on services he performed, 10% commission on products he sold, and an additional commission for referring clients 2
to the medical spa side of Trio Spa and Salon. Plaintiff was unable to refer clients to Trio Spa due to the adverse effects of the procedure. (R. at 14). When Haley initially sought treatment for his injuries with Dr. Sam Fillingane, he reported that the laser procedure occurred at Trio Spa and Salon, not Ageless Remedies. (R. at 258). Standard of Review In reviewing the grant or denial of a motion for summary judgment, the standard of review is de novo. Knight v. Terrell, 961 So. 2d 30, 31 (Miss. 2007). We employ a de novo standard when reviewing whether a trial court properly granted summary judgment. Conrod v. Holder, 825 So. 2d 16, 18 (Miss. 2002); Stewart v. Hoover, 815 So. 2d 1157, 1159 (Miss. 2002); Bond v. Marion County Bd. of Supervisors, 807 So. 2d 1208, 1213 (Miss. 2001); Certain Underwriters at Lloyd's of London v. Knostman, 783 So. 2d 694, 697 (Miss. 2001). In conducting the de novo review, this Court looks at all evidentiary matters, including admissions in pleadings, answers to interrogatories, depositions, and affidavits. Lee v. Golden Triangle Planning & Dev. Dist., Inc., 797 So. 2d 845, 847 (Miss. 2001). SUMMARY OF ARGUMENT Summary Judgment is only proper where no genuine issue of material fact exists. The lower court erred in granting summary judgment in the instant case based on an inconsistent statement by Haley. The court took on the role of the factfinder and improperly made witness credibility determinations. Furthermore, the lower court incorrectly dismissed the entire case with prejudice. The summary judgment motion addressed the medical negligence claim only. Even if summary judgment was properly granted as to the medical negligence claim, the remaining claims are a jury question. Here, Jurgenson, Ageless Remedies, and Dr. Abraham failed to show the lack of a genuine issue of material fact and that they are entitled to judgment 3
as a matter of law. Therefore, the decision of the lower court should be reversed and remanded for further proceedings ARGUMENT Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Miss. R. Civ. P. 56(c). The evidence must be viewed in the light most favorable to the party against whom the motion has been made. One South, Inc. v. Hollowell, 963 So. 2d 1156, 1160 (Miss. 2007). The moving party has the burden of demonstrating that [no] genuine issue of material fact[s] exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact. Howard v. City of Biloxi, 943 So. 2d 751, 754 (Miss. Ct. App. 2006). In every case, before any burden falls to the nonmovant, the party moving for summary judgment first must have met its burden under Mississippi Rule of Civil Procedure 56. See Van v. Grand Casinos of Miss., Inc., 767 So. 2d 1014, 1017-18 (Miss. 2000) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). "Issues of fact... are present where one party swears to one version of the matter in issue and another says the opposite." Id. (quoting Tucker v. Hinds County, 558 So. 2d 869, 872 (Miss. 1990)). Further, [s]ummary judgment is inappropriate where there are undisputed facts which are susceptible to more than one interpretation. Johnson v. City of Cleveland, 846 So.2d 1031, 1036 (Miss. 2003). The existence of a genuine issue of material fact will preclude summary judgment. Hardy v. Brock, 826 So. 2d 71, 74 (Miss. 2002). Where material facts are disputed, or where different interpretations or inferences may be drawn from undisputed material facts, summary judgment is inappropriate. See Johnson v. City of Cleveland, 846 So. 2d 1031, 1036 (Miss. 2003). 4
I. The lower court improperly invaded the province of the jury when it granted summary judgment due to Haley s inconsistent statement. The trial court erred in granting summary judgment as the credibility of witnesses is to be determined by a jury, not the judge. Summary judgment was sought on the basis that Haley made inconsistent statements that precluded him from presenting his case to the fact finder. Jurgenson testified in her deposition that she did not perform a laser procedure on Haley. However, Haley testified in his deposition, and alleged in his complaint that Jurgenson did perform a laser procedure on his face. In fact, in his sworn deposition, Haley explained, step by step, the exact interaction between himself and Jurgenson on the date that she performed the laser procedure. "Issues of fact... are present where one party swears to one version of the matter in issue and another says the opposite." Id. (quoting Tucker v. Hinds County, 558 So. 2d 869, 872 (Miss. 1990)). Jurgenson asked the Court to find that a prior inconsistent statement by Haley should prevent him from being able to appear before the jury. While it is true that Haley admitted in his deposition that he told Dr. Abraham that the procedure he received occurred at Trio Spa & Salon, not Ageless Remedies, Haley also admitted that he did this to protect Jurgenson s job. Haley also made this statement at Haley s request. It is not a question of whether a genuine issue of material fact exists, but instead of whether a misstatement should prevent Haley from appearing before this Honorable Court and a jury. Haley stated clearly under oath the occurrences which occurred on December 17, 2008, and continues to state under oath that those statements are correct. A prior admission or statement does not prohibit Haley from presenting his otherwise consistent version of what happened in the instant cause of action. Here, summary judgment was 5
granted for little more than Haley making an inconsistent statement at his friend s, Jurgenson s, request. The only inconsistent or self-contradictory statements occurred when Haley tried to protect Jurgenson s job. The statement is not false but not identical in nature to a prior statement. Haley did testify that when he met Dr. Abraham in 2009, he told him that the procedure on his face was performed by Dr. Faucett. However, Plaintiff later acknowledged that he lied to protect Jurgenson s job at her specific request. Haley acknowledged through his deposition testimony that his conversation with Dr. Abraham was incorrect. Furthermore, Haley explained why he made the statement. The statement was made to protect Jurgenson s job. Smilarly, in Giles v. Brown, a witness testified inconsistently by deposition and affidavit regarding an accident. 962 So. 2d 612 (Miss. Ct. App. 2006). The circuit court granted summary judgment because in her affidavit, the witness retreated from remarks made in her deposition. Id. The Court of Appeals reversed finding that a summary judgment motion does not place a court in the role of weighing testimony and determining the credibility of witnesses. Id. at 618. This principle should also apply in the instant case. Although at times inconsistent, the witness affidavit and deposition, combined with other evidence in the case presented a genuine issue of material fact regarding whether the defendant acted recklessly. Judge Emfinger took on the role of the jury when he determined that Haley s inconsistent statement warranted dismissal. Given the dispute as to the facts of what happened, Haley should have been allowed to present his case to a jury and have the jury to make the determination as to credibility. Summary judgment is not a not a substitute for the trial of disputed facts. Cmt. to Miss. R. Civ. P. 56. "Credibility is a question of fact that must be decided by the jury." Treasure Bay Corp. v. Ricard, 967 So. 2d 1237, 1240 (Miss. 2007). [I]t is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses." Id. at 883 (quoting Boeing Co. v. Shipman, 411 F.2d 6
365, 374-75 (5th Cir. 1969). Decisions as to the weight and credibility of a witness's statement are the proper province of the jury, not the judge." Doe v. Stegall, 757 So. 2d 201, 205 (Miss. 2000). Giving credence to one sworn statement over another is not appropriate at the summary judgment level. Id. The material fact in dispute as to whose versions of the events is to believed is a question for the factfinder. Genuine issues of material fact exist as to whether Jurgenson negligently applied the laser to the face of Haley. There is a complete genuine issue of fact as to whether Jurgenson used the laser on Haley s face. This version of he said she said is not proper for summary judgment and should be put to a jury. Jurgenson seeks to have this Court make credibility determinations and to weigh the evidence; but, that is the function of the factfinder (Hughes v. Illinois Cent. R.R. Co., 58 F. 3d 637 (S.D. Miss. 1995); see also Giles v. Brown, 962 So. 2d 612, 618 (Miss. Ct. App. 2006) ("A summary judgment motion does not place a court in the role of weighing testimony and determining the credibility of witnesses... such determinations are improper for a court to make at the summary judgment stage."). Here, in granting summary judgment, the trial judge stepped outside of his role and made determinations that should have been for a jury to decide. Consequently summary judgment was not proper and should be reversed. II. Even if summary judgment was proper as to the medical negligence action, Haley s remaining claims were improperly dismissed. Judge Emfinger rendered his decision based on the dismissal of the negligence action. However, Haley alleged more than one cause of action. In his complaint, Haley also alleged causes of action for negligence, negligent supervision and/or training, negligent infliction of emotional distress and respondeat superior. The motion for summary judgment only addressed the medical negligence action. Thus, even if summary judgment is granted as to the medical negligence action, the remaining actions survive. 7
The instant case is similar to Carroll v. Fort James Corp., 470 F.3d 1171 (5th Cir. 2006). In Carroll, the plaintiffs brought suit alleging multiple causes of action, including fraud. Id. The defendant moved to dismiss the fraud claim. Id.The district court granted the plaintiffs leave to amend their pleading wherein plaintiffs attempted to plead with greater particularity. Id. The defendant in its subsequent motion to dismiss the fraud and testing claims made no mention of the remaining claims. Id. Likewise, when the court granted the motion to dismiss, its order specifically addressed the fraud and testing claims, but made no reference to the additional claims. The Fifth Circuit found that the sua sponte dismissal without adequate fairness to the parties to be reversible error. Id. Similarly, in the case sub judice, the lower court failed to provide Haley with notice or opportunity to be heard on his remaining claims before issuing its order of dismissal. As in Carroll, the lower court did not so much as mention those remaining claims in its order of dismissal, despite purportedly disposing of them. The trial court's grant of summary judgment was improper, and too hasty. Haley was not provided an opportunity to be heard on the remaining causes of action that were before the court. This action by the lower court constituted reversible error. Accordingly, the instant case should be reversed and remanded for further proceedings. CONCLUSION The errors as discussed above prevented Haley from presenting his case to a jury. The Defendant s motion for summary judgment was improperly granted. It is not the role of the judge to determine the credibility of the witnesses. This is the sole province of the jury. Additionally, there are still other causes of actions to be yet tried or decided by the trial court. As such, this case should be reversed and remanded for further proceedings. 8
Respectfully submitted, HARVEY HALEY, Appellant /s/ Ashley L. Hendricks BY: Darryl M. Gibbs, MSB No. 100232 Ashley L. Hendricks, MSB No. 104240 Chhabra & Gibbs, P.A. 120 North Congress Street, Suite 200 Jackson, Mississippi 39201 Telephone: (601) 948-8005 Facsimile: (601) 948-8010 Attorneys for Appellant, Harvey Haley 9
CERTIFICATE OF SERVICE We, attorneys for Appellant, do hereby certify that we have this date hand delivered or mailed by United States, postage prepaid, a true and correct copy of the above and foregoing Brief in Support of Appellant Harvey Haley to: Chris J. Walker, Esquire M. Garner Berry, Esquire Markow Walker, P.A. Post Office Box 13559 Jackson, Mississippi 39236-3669 SO DATED, this the 21st day of March, 2014. /s/ Ashley L. Hendricks Darryl M. Gibbs (MSB No. 100232) Ashley L. Hendricks (MSB No. 104240) Chhabra & Gibbs, P.A. 120 North Congress Street, Suite 200 Jackson, Mississippi 39201 Telephone: (601) 948-8005 Facsimile: (601) 948-8010 Attorneys for Appellant, Harvey Haley 10