Miller v. R. B. Wall Oil Co., Inc.
| Docket Number: | 2005-CT-01966-SCT Linked Case(s): 2005-CT-01966-SCT ; 2005-CA-01966-COA |
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| Supreme Court: | Opinion Link Opinion Date: 12-06-2007 Opinion Author: DICKINSON, J. Holding: Affirmed in Part, Reversed & Remanded in Part |
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| Additional Case Information: |
Topic: Personal injury - Supplementation of record - M.R.A.P. 10(b)(5) - Agency relationship - Notice of dangerous condition - Punitive damages - Attorney’s fees - M.R.C.P. 56(h) Judge(s) Concurring: SMITH, C.J., WALLER, P.J., CARLSON AND RANDOLPH, JJ. Concur in Part, Dissent in Part 1: Graves, J., with separate written opinion. Concur in Part, Dissent in Part Joined By 1: Diaz, P.J., Easley and Lamar, JJ. Procedural History: Summary Judgment Nature of the Case: CIVIL - PERSONAL INJURY Writ of Certiorari: yes Appealed from Court of Appeals |
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| Trial Court: |
Date of Trial Judgment: 09-26-2005 Appealed from: Hinds County Circuit Court Judge: W. Swan Yerger Disposition: Granted R.B. Wall Oil Company's Motion for Summary Judgment. Case Number: 251-97-159CIV |
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| Note: | This opinion affirms in part, reverses in part & remands in part a previous opinion by the Court of Appeals. See the original COA opinion at: http://www.mssc.state.ms.us/Images/Opinions/CO38124.pdf | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | STEPHEN W. MILLER |
DAVID N. GILLIS,
WAYNE E. FERRELL, JR. |
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| Appellee: | R. B. WALL OIL COMPANY, INC. | MELTON JAMES WEEMS, ROY A. SMITH, JR. | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Personal injury - Supplementation of record - M.R.A.P. 10(b)(5) - Agency relationship - Notice of dangerous condition - Punitive damages - Attorney’s fees - M.R.C.P. 56(h) |
| Summary of the Facts: | Stephen Miller slipped and fell on diesel fuel spillage at the Bogue Chitto Truck Stop. At the time of the accident, the truck stop was being operated by Mary Jo Bueto, who was leasing it from R.B. Wall Oil Co., a distributor of Shell gasoline products. As a result of injuries he sustained in the fall, Miller filed suit against Bueto, Wall and Shell Oil Company. Wall filed a motion for summary judgment, which the trial court granted. The Court of Appeals dismissed the appeal due to improper M.R.C.P. 54(b) certification. The trial court re-entered final judgment in compliance with Rule 54(b), and Miller again appealed. The Court of Appeals found no genuine issue of material fact regarding the element of notice. The Supreme Court granted certiorari. |
| Summary of Opinion Analysis: | Issue 1: Supplementation of record The record initially before the Court was scant, rendering it nearly impossible to make any determination on the merits of Miller’s assignments of error. Although the transcripts were missing from the record, they were included in the Designation of the Record. M.R.A.P. 10(b)(5) obligates the appellant to examine the record and submit any proposed changes to the record or certify that the record is correct and complete. It appears from the Designation of the Record that only one of the nine documents Miller designated as part of the appellate record actually was included in the record. Clearly, Miller failed to comply with Rule 10(b)(5). This deficiency is to serve as notice and a warning to all appellate counsel that failure to comply with Rule 10(b)(5) in future cases will be at the attorney’s own peril. After the Court ordered Miller to supplement the record with all documents designated but not included in the appellate record, Miller timely complied by providing the missing documents. Issue 2: Agency Miller argues that there are material facts at issue regarding whether Bueto acted as Wall’s agent and whether Bueto was on notice of the allegedly dangerous conditions on the truck stop premises. Factors for determining whether an agency relationship exists include whether the principal master has the power to terminate the contract at will; whether he has the power to fix the price in payment for the work, or vitally controls the manner and time of payment; whether he furnishes the means and appliances for the work; whether he has control of the premises; whether he furnishes the materials upon which the work is done and receives the output thereof, the contractor dealing with no other person in respect to the output; whether he has the right to prescribe and furnish the details of the kind and character of work to be done; whether he has the right to supervise and inspect the work during the course of employment; whether he has the right to direct the details of the manner in which the work is to be done; whether he has the right to employ and discharge the subemployees and to fix their compensation; and whether he is obliged to pay the wages of said employees. Several of these factors weigh in favor of the existence of an agency relationship between Beuto and Wall. Evidence shows that Wall regularly inspected Bueto’s operation of the truck stop. Bueto testified that while she had some authority concerning the price of the gasoline that she sold, she could not change the price without consulting Wall. Bueto was not allowed to price the gasoline outside certain limitations under any circumstances. Wall also received one-half of all profits from the sale of gasoline. In addition, Wall owned the land, buildings, gas pumps and storage tanks. Bueto was required to call Wall if any repairs to the pumps were needed. Wall took its profits – not from its sale of fuel to its customer, Bueto – but rather from Bueto’s sales to the general public. Because a significant material factual dispute exists regarding the agency relationship, summary judgment on that issue was inappropriate. Issue 3: Notice of dangerous condition The Court of Appeals found the defendants had no notice of the dangerous condition and therefore could not be held accountable for Miller’s injuries. Where an injured party demonstrates that the dangerous condition was created by the negligence of the business or its employees, the injured party need not prove notice to the business. However, if the dangerous condition was created by someone not associated with the business, the plaintiff must produce evidence that the owner or operator had actual or constructive knowledge of the dangerous condition as well as a sufficient opportunity to correct it. In this case, no evidence was presented that the oil was spilled by anyone associated with the truck stop. Therefore, to escape summary judgment, Miller must provide evidence that Bueto or her employees had sufficient notice of the oil spill to allow remedial action. One of Bueto’s employees testified that there was always gas and oil on the ground at the site of the fall. He stated that, at the time of the accident, the area was very wet, dirty, and covered in diesel fuel. Miller further testified that, when he told Bueto’s employee that he had slipped on the fuel, the employee stated that management was aware of the broken fuel pump and that someone had been called to fix it. This evidence is sufficient to create a question of fact for the jury regarding whether the defendants had notice of the dangerous condition in time to take remedial measures. Issue 4: Punitive damages Miller argues that the court erred in granting summary judgment to Wall on the issue of punitive damages. Miller has not presented evidence that Bueto or Wall engaged in actions that could be characterized as malicious or willful and wanton, and certainly not evidence a jury could find clear and convincing. Therefore, the trial judge was correct when granting summary judgment on the issue of punitive damages. Issue 5: Attorney’s fees Miller argues he is entitled to reasonable expenses and attorney’s fees because Wall’s summary judgment motion was made without good cause. M.R.C.P. 56(h) states that a trial judge must award reasonable expenses to a prevailing party. However, because Miller did not prevail on all issues presented for summary judgment, he is not a “prevailing party” within the meaning of Rule 56(h), and is not entitled to an award of expenses. An award of attorney’s fees may be granted only where the trial court finds the motion was filed without reasonable cause. Because Wall’s motion was made with reasonable cause, the trial judge may not award attorney’s fees to Miller. |
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