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Howard v. Rolin Enterprises, LLC

Court of Appeals of Mississippi

August 8, 2017

JOHN CALVIN HOWARD APPELLANT
v.
ROLIN ENTERPRISES, LLC, LINDA WALKER, INDIVIDUALLY AND DOING BUSINESS AS ROLIN ENTERPRISES, LLC, AND CHARLIE NORRELL APPELLEES

          DATE OF JUDGMENT: 02/08/2016

         CLAIBORNE COUNTY CIRCUIT COURT, HON. LAMAR PICKARD JUDGE.

          ATTORNEYS FOR APPELLANT: DAVID M. SESSUMS KIMBERLY WALKER NAILOR W. RICHARD JOHNSON.

          ATTORNEYS FOR APPELLEE: BENJAMIN LYLE ROBINSON MICHAEL MADISON TAYLOR JR.

          BEFORE IRVING, P.J., CARLTON AND WESTBROOKS, JJ.

          IRVING, P.J.

         ¶1. John Calvin Howard attended a party at the Claiborne County Convention Center (Convention Center), where he was assaulted by a group of fellow partygoers and sustained injuries. Howard brought suit against the following: Linda Walker, the owner of the Convention Center, in her individual capacity and doing business as Rolin Enterprises, LLC (Rolin); Charlie Norrell, who provided security services for the party, in his individual capacity and doing business as Celebrity 1 Security; and Triston Moore, who coordinated the event. Walker and Rolin filed a motion for summary judgment, which the Claiborne County Circuit Court granted. Howard appeals. Because the circuit court's summary-judgment order and subsequent final judgment did not dispose of all parties involved in this matter or certify that the final judgment was entered pursuant to Rule 54(b) of the Mississippi Rules of Civil Procedure, we must dismiss the appeal for lack of jurisdiction.

         FACTS

         ¶2. Walker, doing business as Rolin, owned the Convention Center, which she rented to third parties for various events. Moore rented[1] the Convention Center from Walker for the purpose of hosting a party following an Alcorn State football game on September 14, 2013. Howard and a group of his friends, including another young man named Michael Moseley, arrived to the Convention Center around 11:30 p.m. on September 14, 2013, as the party was well underway. Shortly after arriving, Howard and Moseley were on the dance floor when they were assaulted by other partygoers, one of whom was later identified as Justin Bailey. Security, including Norrell, broke up the fight and separated the two groups by sending Bailey and his accomplices outside, while telling Howard and Moseley to wait on-stage for a few minutes. After about ten to fifteen minutes, Howard and Moseley decided to leave the Convention Center. Norrell escorted them outside. As they were crossing the parking lot, the same group from before attacked Howard and Moseley a second time. Howard maintains that Bailey stabbed him in the neck with a broken beer bottle. According to Howard, Norrell did not take any action to stop the fight, but merely watched it take place. The fight was finally broken up by a third party, and Howard was airlifted to the University of Mississippi Medical Center, where he was treated for lacerations to his neck, shoulder, and back.

         ¶3. Howard filed a complaint against Rolin, alleging that it had failed to maintain the premises in a reasonably safe condition. Howard then sought, and was granted, leave of court to file an amended complaint, joining Norrell, individually and doing business as Celebrity 1 Security, Moore, and Walker in her individual capacity. After obtaining leave of court, Howard amended his complaint accordingly.

         ¶4. The record reflects that process was served on Norrell on October 25, 2014, but does not show that Norrell ever filed an answer. Both parties in their appellate briefs agree that Norrell was served with process, but that Moore was not. The docket indicates that Norrell continued to be noticed of certain orders throughout discovery (including an order setting the pretrial conference date and a later order continuing the pretrial conference to another date), along with Walker and Rolin's attorneys. However, Norrell never filed any pleadings or responses of his own. Further, no entry of default judgment was ever entered against him.

         ¶5. Howard and Walker proceeded with discovery. Howard, Walker, and Moore provided depositions. Walker twice scheduled and noticed depositions for Norrell, but Norrell failed to appear both times. The only correspondence with Norrell included in the record is an email from Walker's counsel to Howard's, wherein Walker informed Howard on the night before Norrell's second scheduled deposition was to take place that it would be cancelled, as Norrell told Walker that he was out of the state and would be unable to attend. Shortly thereafter, Walker and Rolin filed their motion for summary judgment, which, as stated, was granted without the judgment being certified pursuant to Rule 54(b).

         DISCUSSION

         ¶6. "Because this issue is jurisdictional, we must address it on our initiative even though none of the parties have raised it on appeal." Jackson v. Lowe, 65 So.3d 879, 881 (¶5) (Miss. Ct. App. 2011) (citing M.W.F. v. D.D.F., 926 So.2d 897, 899 (ΒΆ4) (Miss. 2006)). "Generally, only ...


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