IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2017-CA-01490-COA RUSSELL GILL APPELLANT

v. PROFESSIONAL AUTO COLLISION APPELLEE DATE OF JUDGMENT: 06/01/2017 TRIAL JUDGE: HON. ROBERT P. KREBS COURT FROM W HICH APPEALED: JACKSON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: STEPHEN W . MULLINS ATTORNEY FOR APPELLEE: MARK EDW ARD NORTON NATURE OF THE CASE: CIVIL - CONTRACT DISPOSITION: REVERSED AND REMANDED - 06/04/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE J. WILSON, P.J., GREENLEE AND McCARTY, JJ. GREENLEE, J., FOR THE COURT: ¶1. This is an appeal f

rom th e J a c k s o n County Circuit Court regarding the appropriateness of summ ary judgm ent. W e reverse and rem and f or f urther proceedings consistent with this opinion. FACTS AND PROCEDURAL HISTORY ¶2. This case involves a dispute over the restoration of an antique truck. ¶3. Russell Gill (Gill) wanted to purchase a specif ic 1 967 Chevrolet C10, b ut it was in bad shape. He wanted to b ring the truck to Cruisin’ The Coast and other antique car s hows, so he contacted W illiam W e bb (W ebb)—owner of Prof essional A uto Collision—to see if his

com pany could restore t h e t ruck. W ebb indicated that i t could, so Gill purchased theChevrolet and brought it to Prof essional Au t o C o l l i sion f or restoration. The com

pany provided him with a repair e stim ate on March 14, 2011, that totaled $6,415.72, Gill paid, and Prof essional Auto Collision worked on the truck in the f o llowing m onths. ¶4. Gill s ent his f

ather-in-law t o pick up the Chevrolet. But Gill was unsatisf ied when he

saw it because of the “overall poor quality of the paint job that was allowing rust and other abnorm alities t o com e through the paint and was chipping of f in l arge areas.” Both parties
attem pted to rem edy

the situation, but f

urther negotiations were inef f ective. ¶5. Gill f

iled a c o mp l a i n t i n t h e County Court of Jackson County in Decem ber 2012 against b oth W ebb and Prof essional Auto Colli s ion. In it, he asserted the f ollowing six

c l a i ms : (1) breach of contract; ( 2) bad f aith; (3) negligence; (4) gross n egligence; (5 ) respondea t s u

p e r i o r ; a n d ( 6 ) i n fl i c t i o n o f e m otional distress and m e n tal anguish. Furtherm ore, Gill asserted that he h ad suf f ered dam ages that included: e conom ic loss; loss of enjoy m ent of lif e ; p s y c h o l ogical and em o tional traum a, distress, anxiety , and m ental suf f ering; legal interest; attorney s’ f

ees and expenses; and other dam a ges to be proven at trial. ¶6. I n S e p t e m

b er 2014, the def

endants m oved f

or s umm ary j udgm ent f

or W ebb a n d partial summ ary judgm ent f o r Prof essional A u t o C o l l ision. They argued that the repair estim ate s pecif

ied that work was t o be done by Prof essional Auto Collision and that piercing the corporate v eil to include W ebb in the suit w as i nappropriate. Furtherm ore, they urged the
court to dism iss the claim f o r inf liction of em otional distress and m ental anguish because Gill had not produced any

m edical records f

or docum entation. ¶7. T h e C o u n t y C o u r t i s s u e d a n a greed order granting summ ary judgm ent, and i t

2dism issed W ebb with prejudice as a def endant an d f

ound that “all claim s a g ainst Prof essional Auto Collision f

or e m otional distress, m e ntal anguish, and loss of enjoy m ent of l if

e should be dism i ssed with prejudice.” ¶8. In Novem

ber 2 015, Pro fe s s i o n a l Au t o C o l l i s i on f

iled a m otion f

or s umm ary

judgm ent, or in the alternative, a m otion in lim ine. Specif ically , it argued: In gen e r a l, if an alleged negligent act was c omm itted i n the perf orm ance of prof essio nal services or occupational skills, the plaintif f m ust present e xpert testim ony to establish the standard of care. . . . The Plai n t if f m u st produce expert testim ony as to what a rea s o n a ble p rudent prof

essional would have done or not done under the circum stances. . . . W i thout the testim ony of an expert witness, the Plaintif f cannot c r eate a genuine issue of m aterial f a ct as to whether Prof

essional Auto Collision f

ailed to perf orm the work on the repair estim a t e within the custom and standard in the industry

or otherwise breached the standard of care. The m otion addressed negligence, but it d id n ot a d dress any of Gill’s other c l aim s f ound in the initial com

plaint. And the m otion in lim ine was f i led to exclude Gill’s repair estim ates f rom other body

shops as expert testim ony . ¶9. Gill responded to the m otion, arguing that “[ t ]here is c learl y a g e n u i n e i s s u e o f

m aterial f a c t t h a t is in dispute between the parties, m a inly whether the Plaintif f withheld
perm ission f

rom the Def

endant to bead blast the c ar in question.” H e f urther asserted that expert testim ony was unneeded “f or causation when the Def endant adm its that the job itself was in f act def ective.” ¶10. In January 2016, the county court heard the oral argum ents o f both parties, and “af ter revie w i n g t h e f

i le and Motion f

or Summ ary Judgm ent f

iled by the Def

endant and hearing
argum ents of Counsel,” the court f ound the m otion w ell taken and g rante d summ ary
3judgm ent. As a result, it als o f o u nd the m otion in l im ine m oot. Neither the transcript f rom the hearing n or the summ ary -judgm ent order reveal the court’s reasoning, and the court did not cite to any

caselaw or other authority

. ¶11. Gill m oved f

or reconsideration, and the county court denied his m o tion. G ill appealed to the Jackson County

Circuit Court in May

2016. ¶12. The circuit court heard oral argum ent in May 2017. Af ter, it held: Gentlem e n, the Court has r ead all the pleadings with respect to this case, and f inds af ter review that cla s s i c c a r s are a s pecial niche in auto repair. It takes dif f erent people than just the old guy s who used to Bondo y our car and paint over them and that kind of stuf f

. There’s certainly n o q

uestion that this plaintif

f had e ngaged in f

ixing his o wn over the y ears. No question that P rof e s sional Auto Collision certainly was in the business of doing that on a r e gular b asis, getting cars ready f o r—classic cars ready f

or Cruising the Coast, so that puts him in a special niche, as f ar as the Court is concerned. Although i t is a m edical m alpractice case, the law in C hitty vs. Dr. Terracina, Appeals case, August 25, 2009 at 16 S o. 3d 774, m a kes t h e f ollowing: A prof essional service involves the application of special skill, knowledge and education, arising out of

a vocation, calling, occupation or em ploy m ent. The conclusion that Chitty ’s surgical or other p r o f essional services, q

uoted, is underscored by

the f a ct that expert m edical testim ony would b e necessary to prove Chitty ’ s claim s . The Court so f

inds h ere that expert testim ony would have been required in this particular case, and the ruling of the Lower Court is hereby af f i rm e d

. The court issued its o r d e r af f irm ing the county court judgm ent in June 2017. Again, Gill

m oved f or reconsideration. The circuit court denied his m otion. ¶13. Gill appeal s , a r g u i n g t h a t s u mma r y j udgm ent was inappropriate because expert testim o ny is unnecessary and there rem ained a genuine issue o f m aterial f act in the dispute.

4STANDARD OF REVIEW

¶14. “It is well-settled that appellate review of the trial court’s grant or denial of a m otion f or summ ary judgm e nt requires the application of d e novo review.” Adams v
. G raceland Care Ctr. of Oxford , 208 So. 3d 575, 579 (¶9) (Miss. 2017). “Summ ary judgm ent is proper only when no genuine issue of m aterial f act exists, and the m o ving party is entitled to judgm ent as a m a tter of law.” Owen v. Pringle , 621 So. 2d 6 6 8, 670 (Miss. 1993). And to determ ine whether there is a genuine i ssue of m aterial f act, we will review “all adm issions,

answers to in t e r

rogatories, depositions, af f i davits, and any other evidence, v iewing the evidence i n a light m ost f

avorable to the non-m ovant.” Elliott v. AmeriGas Propane L.P. , 249 So. 3d 389, 395 ( ¶22) (Miss. 2018) (in ternal quotation m ark om itted); see also M.R.C.P. 56(c) (“The judgm ent sought shall be rendered f orthwith if the pleadings, dep o s i t i ons,

answers to i nterrogatories and adm issions on f ile, together with the a f

f idavits, if any , show that there is no g enuine i ssue a s to any m aterial f act and that the m oving party is entitled to a judgm ent as a m atter of law.”). DISCUSSION ¶15. The only caselaw cited by either the county court or the circuit court in the record is Chitty v. T

erracina , 16 So. 3d 774 (Miss. Ct. App. 2009). T he circuit court a pprovingly cited Chitty f or the proposition that “[ a ] prof essional s ervice involves the a pplication o f special

s kill, knowledge and education, arising out of a v ocation, calling, occupat i o n o r

em ploy m ent.” Furtherm o re, the court asserted that because Prof essional Auto Collision is a provider of “prof

e ssional services,” expert testim ony i s necessary to prove Gill’s claim s. In

5the circuit court’s view, theref ore, summ ary

judgm ent was appropriate. ¶16. But Chitty , as the c ourt noted, is a m edical-m alpractice statute-of -lim itations case. In that case, Angelia Chitty “went to see D r. J oseph Terracina, a c e rtif ied derm atologist , f

or
treatm ent of a sm all red, raised spot on her c h eek underneath h er lef t ey e.” Id. at 775 (¶2). Terracina perf

orm ed a biopsy and determ ined that the spot was c ancerous. Id. at (¶¶2-3). He in f o r m e d Chitty that she needed t o return to have the spot rem oved and that the procedure would c ost between $1,500 and $2,000. Id. at (¶3). Chit t y got a second opinion, and she learned that the s p ot w as not c ancerous. Id. She sued Terracina f or s everal causes of action and, af ter d iscovery and m o tion practice, T erracina m oved to d ism iss the suit. Id. at 776 (¶4). ¶17. Apply ing the statute of l im i tations, the circuit court determ i ned that under Mississippi Code Annotated section 15-1-36 (Rev. 2003) (describing the lim itations applicab le to a

m alpractice action arising f rom m edical, surgical, or other prof essional s ervices), “Chitty did
not acc o mp a n y the com plaint with a certif

icate of expert consultation as required by Mississippi Code Annotated section 11-1-58 (Supp. 2008)” and dism issed Chitty ’s suit. Id. On a ppeal, the Court of Appeals af f irm ed the dism issal, f

inding that “Chitty ’s claim s ‘ar[ ose]
out of the course of m edical, surgical or other prof essional services’ under Mississippi Code Annotated section 1 5-1-36(2).” C hitty , 16 So. 3d at 777 (¶9). W e determ ined this because “[ t]he biopsy procedure and pathology report

. . . [ w ere a] ‘prof e ssional s e r

vice’ [ which] involve[ d] the a

pplication of special skill, knowledge and e ducation arising out o f a vocation, calling, occupation or em ploy m ent.” Id. at 779 (¶13). ¶18. In the present case, the c i r c u i t c o u r t d e t e r mi n e d that the painting of an antique

6autom obile b y a m echanic was so specialized that it could constitute a “prof essional service,” and thus it required expert testim ony to prove claim s of neglig e n c e . But to stretch that def inition f rom a m edical-services statute-of

- lim itations case to include s ervices provided by
autom obile m echanics i n the context of n egligence claim s is to expand that logic too f ar. Our
suprem e court has recognized the lim ited necessity of expert testim ony i n certain negligence

cases “where a lay

m an can observe a n d u n d e rstand the negligence as a m atter o f comm on

sense and practical experience.” Palmer v. Anderson I nfirmary Benev. Ass’n , 656 S o. 2d 790, 795 (Miss. 1995). And the suprem e court h as recognized this lim it in o ther prof essions. E.g. , Lovett v. Bradford , 676 So. 2d 893, 895 (Miss. 1996) (“However, this Court h as not held that insurance salesm en belong to s uch a prof ession [ that requires expert testim ony to support an action f or m alpractice].”). The circuit court’s broad ruling that the lack o f an expert witness f orecloses all claim s at this early juncture is at best prem ature. ¶19. Furtherm ore, there r em ains a genuine issue of m aterial f act i n the dispute between Gill and Prof essional Auto C ollision. A review o f the depositions indicates that Gill claim s that he never discussed any preparation with Prof essional Auto Collision and that som e degree of preparation is i m

plicit i n good workm anship on autom obiles f or r epairing and painting. Prof essional Auto Colli s i o n asserts that Gill never gave Prof essional Auto Collision
perm ission to prepare the C hevrolet af ter they e xplicitly discussed p re-painting preparation with him but determ i ned not to d o any because G i l l w as concerned about the costs. The depositions of both Gill and W ebb indicate that this is a g enuine issue of m aterial f act. And the March 14, 2011 repair estim ate provided in the r ecord does n ot explicitly state tha t

7Prof

essional Auto C ollision should or should not prepare t h e v e h i c l e in a specif ic m anner bef ore painting. This specif

ic contract-based question is a question of f a ct. ¶20. B a s e d o n t h e e v i d e n c e bef ore us, a genuine issue of m aterial f act rem ains as t o whether Gill discussed the pre- p ainting preparation with Prof essional Auto Collision. “W here doubt exists as to w h e t h e r t h e r e is a genuine i ssue of m aterial f a ct, the trial judge should err on the side o f deny ing the m otion and perm itting a f ull trial on the m e rits. W here the record is incom

plete regarding any m aterial f act, the summ ary judgm ent m otion should generally be denied.” Ellis v. Powe , 645 So. 2d 947, 950 (Miss. 1994). F urtherm ore, expert testim o ny m ay not be required here if “a lay m an can o bserve and understand the negligence

as a m atter of comm on s e nse and practical e xperience.” Palmer , 656 So. 2d at 795. As such,

summ ary judgm ent was im proper. E.g. , Owen , 621 So. 2d at 670. Finally , we also note that all of Gill’s other claim s —bad f aith, gross negligence, and r espondeat superior—were not reached by

the summ ary judgm e nt. W e have neither law n or f acts to m ake a determ ination

on any of these other claim s. Theref o re, we reverse and r em and f o r f urther proceedings f

or f indings consistent with this opinion. CONCLUSION ¶21. As expert testim ony m ay not be required in this case and a question of m aterial f act

rem ains regarding whether Gill discussed pre-painting preparation with Prof essional Auto Collision, we reverse and rem and to the circuit court f or f urther proceedings. ¶22. REVERSED AND REMANDED. BARNES, C.J., CARLTON, P.J., WESTBROOK S , TINDELL, M cDONALD, McCARTY AND C. WILSON, JJ., CONCUR. J. WILSON, P.J., CONCURS IN PART

8AND IN THE RESULT WITHOUT SEPA R A T E WRITTEN OPINION.

LAWRENCE, J., NOT PARTICIPATING.

9