        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2016-CA-01666-COA

TAKIA MAYS, INDIVIDUALLY, AND AS                                          APPELLANT
PERSONAL REPRESENTATIVE OF THE
ESTATE AND HEIRS-AT-LAW AND/OR
WRONGFUL DEATH BENEFICIARIES OF
ROSALYN PACKER, DECEASED

v.

SHOEMAKER PROPERTY MANAGEMENT,                                             APPELLEES
LLC AND CAROLINE DEVELOPMENT, LLC

DATE OF JUDGMENT:                         11/03/2016
TRIAL JUDGE:                              HON. ROBERT B. HELFRICH
COURT FROM WHICH APPEALED:                FORREST COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   CARLOS EUGENE MOORE
ATTORNEYS FOR APPELLEES:                  PATRICK H. ZACHARY
                                          JACK W. LAND
NATURE OF THE CASE:                       CIVIL - WRONGFUL DEATH
DISPOSITION:                              AFFIRMED - 04/24/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

       WESTBROOKS, J., FOR THE COURT:

¶1.    Takia Mays, the daughter and beneficiary of Rosalyn Packer, sued Shoemaker

Property Management LLC and Caroline Development LLC after Packer died in a fire at an

apartment managed by Shoemaker and owned by Caroline. Shoemaker and Caroline

successfully moved for summary judgment because Mays had not designated an expert

witness to support her negligence theory or her claim for breach of the implied warranty of

habitability. Mays appeals. Finding no error, we affirm.
                                           FACTS

¶2.    In 2012, Alfreda Miles was residing in an apartment at 200 Tuscan Avenue in

Hattiesburg, Mississippi. Miles’s sister, Packer, had been having difficulties with Mays, so

Miles allowed Packer to stay with her through the holidays. On November 15, 2012, a fire

broke out in the apartment. Packer was the only one there at the time and unfortunately she

died as a result.

¶3.    Both the City of Hattiesburg and the State of Mississippi investigated the fire and

reported that “[p]otential heat/ignition sources identified within the area of origin included

the stove and or some type of human involvement.” Moreover, they both reported that the

“electrical outlets and . . . devices were eliminated as possible ignition sources.” Ultimately,

both ruled it an accidental fire and closed the file.

¶4.    In January 2012, Miles had reported that her stove would not turn off. On January 20,

2012, Shoemaker replaced it. According to the record, there were no new work reports filed

regarding the new stove. In her deposition, Miles testified that she told George Moore, an

electrician, that she had been having issues with her lights and smoke detector because a

circuit breaker was not working properly. In May 2012, Moore checked and replaced the

breaker that serviced Miles’s air conditioning unit. In his deposition, Moore testified that the

breaker was old and needed to be replaced. But Moore did not pull out all of the breakers

from the box to inspect the electrical system as a whole, because he had only been called to

repair the air conditioner. In October 2012, Miles’s heat, tub, and kitchen sink were repaired.

No other work orders were placed nor repairs completed between October 2012 and the fire



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in November 2012.

¶5.    Mays sued individually, as the personal representative of Packer’s estate, and on

behalf of Packer’s wrongful-death beneficiaries. Mays raised claims of premises liability and

breach of the implied warranty of habitability. In March 2014, Mays filed a complaint and

an amended complaint. In September 2014, Mays filed a second amended complaint.

¶6.    In January 2015, the original scheduling order set deadlines for discovery to be

completed by July 31, 2015. Mays had to designate her experts by May 29, 2015.

Shoemaker and Caroline had until June 29, 2015, to designate their experts. In July 2015,

the scheduling order was amended to extend discovery to August 31, 2015.

¶7.    On October 5, 2015, the circuit court granted Shoemaker and Caroline’s motion for

partial summary judgment regarding Mays’s premises liability claim, leaving implied

warranty of habitability as Mays’s only remaining claim. On October 13, 2015, the circuit

court excluded J. Albert McEachern Jr. as an expert witness for Mays. McEachern was set

to testify as to the causation of the fire. On April 12, 2016, the circuit court granted

Shoemaker and Caroline’s motion to exclude James Butts’s expert testimony, but denied their

motion to exclude James Vickers as an expert. Butts was also set to testify as to the

causation of the fire. The circuit court also denied Shoemaker and Caroline’s motion for

summary judgment as to the claim that they had breached the implied warranty of

habitability.

¶8.    Lastly, on November 3, 2016, the circuit court entered an order denying Mays’s

motion to substitute electrical expert witness and granted Shoemaker and Caroline’s motion



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for summary judgment regarding Mays’s remaining claim. Mays appeals.

                                      DISCUSSION

       I.     Whether the circuit court erred in denying Mays’s motion to substitute
              electrical expert witness.

¶9.    Mays asserts that the circuit court abused its discretion when it denied her motion to

designate Vickers as an expert witness. We disagree. This Court has held that a “circuit

court’s admission or exclusion of an expert witness is analyzed for abuse of discretion.”

Huggins v. GuideOne Servs. LLC, 100 So. 3d 499, 501 (¶7) (Miss. Ct. App. 2012) (citing

Denham v. Holmes ex rel. Holmes, 60 So. 3d 773, 783 (¶34) (Miss. 2011)). Abuse of

discretion “means ‘clearly against logic and effect of such facts as are presented in support

of the application or against the reasonable and probable deductions to be drawn from the

facts disclosed upon the hearing.’” Douglas v. Burley, 134 So. 3d 692, 697 (¶13) (Miss.

2012) (quoting White v. State, 742 So. 2d 1126, 1136 (¶42) (Miss. 1999)).

¶10.   The circuit court gave Mays multiple opportunities to designate expert witnesses. The

original deadline for Mays to designate expert witnesses was May 29, 2015. On July 23,

2015, the circuit court granted Shoemaker and Caroline’s motion to amend the scheduling

order so they could depose McEachern, who at the time was Mays’s only expert witness.

After the extension of the scheduling order, on August 10, 2015, Mays amended her

designation of expert witnesses to include Dr. Roger A. Mitchell Jr. Then on December 23,

2015, Mays submitted a second amended designation of experts, adding Vickers, James




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Butts, and Dr. Ray Franco, PE.1

¶11.   In April 2016, Mays was given notice, in a hearing and in an order, that Butts would

not be allowed to testify as an electrical expert. Moreover, during the hearing, the circuit

court judge forewarned Mays that he did not think she would be able to defeat a future

summary judgment motion with only Vickers’s expert testimony. Mays did not file her

motion to substitute some unspecified electrical expert until October 24, 2016, one day

before the scheduled hearing on Shoemaker and Caroline’s motion for summary judgment.

During the hearing on Mays’s “motion to substitute electrical expert” and Shoemaker and

Caroline’s motion for summary judgment, the circuit court stated that “time for designation

of experts has long since passed.” Furthermore, in the order, the circuit court stated that

Mays “did not demonstrate good cause for allowing a substitution.” We find that it was

within the circuit court’s discretion to deny Mays’s motion.

       II.    Whether the circuit court erred in granting Shoemaker and Caroline’s
              motion for summary judgment.

¶12.   This Court will review a trial court’s grant or denial of summary judgment de novo.

Alonso v. Ross, 223 So. 3d 194, 196 (¶7) (Miss. Ct. App. 2017) (citing Monsanto Co. v. Hall,

912 So. 2d 134, 136 (¶5) (Miss. 2005)). Under Mississippi Rule of Civil Procedure 56(c),

summary judgment is proper if “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.”



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         The admissibility of expert opinions by McEachern, Dr. Mitchell, and Dr. Franco
are not discussed.

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¶13.   “If any triable facts exist, the lower court’s grant of a summary judgment will be

reversed; otherwise the decision will be affirmed.” Miller v. Meeks, 762 So. 2d 302, 304 (¶3)

(Miss. 2000). “The evidence must be viewed in the light most favorable to the party

opposing the motion.” Alonso, 223 So. 3d at 196 (¶7) (citing Davis v. Hoss, 869 So. 2d 397,

401 (¶10) (Miss. 2004)). However, we have also held that “when a party[] opposing

summary judgment on a claim or defense . . . fails to make a showing sufficient to establish

an essential element of the claim or defense, then all other facts are immaterial, and the

moving party is entitled to judgment as a matter of law.” Galloway v. Travelers Ins. Co., 515

So. 2d 678, 684 (Miss. 1987).

¶14.   Without expert testimony as to the causation of fire, Mays was unable to make a prima

facie case of breach of the implied warranty of habitability. The standard for implied

warranty of habitability “require[s] a landlord to provide reasonably safe premises at the

inception of a lease, and to exercise reasonable care to repair dangerous defective conditions

upon notice of their existence by the tenant, unless expressly waived by the tenant.” Sweatt

v. Murphy, 733 So. 2d 207, 210 (¶7) (Miss. 1999) (quoting O’Cain v. Harvey Freeman &

Sons Inc., 603 So. 2d 824, 833 (Miss. 1991)). Mays held the burden of proof to “show duty,

breach, causation and damages.” Id. at 211-12 (¶12).

¶15.   Shoemaker and Caroline’s duty to Miles2 was to provide “reasonably safe premises”

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         Miles was the tenant and Packer was a licensee. This Court has held that one who
enters upon another’s premises “as a guest of the owner or occupant, or to receive a
gratuitous favor, is usually regarded as a licensee.” Kendrick v. Quin, 49 So. 3d 645, 649
(¶11) (Miss. Ct. App. 2010). “A landowner owes a licensee and a trespasser the duty to
refrain from willfully or wantonly injuring them.” Id. (citing Adams ex rel. Adams v. Fred’s
Dollar Store of Batesville, 497 So. 2d 1097, 1100 (Miss. 1986)).

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and “to exercise reasonable care to repair dangerous defective conditions upon notice of their

existence by the tenant . . . .” Id. at 210 (¶7). On January 16, 2012, Miles notified

Shoemaker that her stove was not properly working and it was replaced four days later. After

a thorough review of the record, we find no other indications of notice about the stove was

given to Shoemaker. Therefore, we find that Shoemaker upheld its duty to repair defective

conditions made known by Miles.

¶16.   Furthermore, the “breach of a duty must be the proximate cause of the injury

suffered.” Sample v. Haga, 824 So. 2d 627, 632 (¶8) (Miss. Ct. App. 2001) (citing Baggett

v. Kornegay, 781 So. 2d 139, 140 (¶3) (Miss. Ct. App. 2000)). This Court held that the

proximate cause is the “cause which in natural and continuous sequence unbroken by any

efficient intervening cause produces the injury and without which the result would not have

occurred.” Id. (quoting Delahoussaye v. Mary Mahoney’s Inc., 783 So. 2d 666, 671 (¶13)

(Miss. 2001)).

¶17.   To be successful on her claims, Mays had the burden of proving the proximate cause

of Packer’s death was the “natural and continuous” result of Shoemaker and Caroline’s

breach of duty. As stated above, both the City of Hattiesburg and the State of Mississippi

investigated the fire and reported:

       [P]otential heat/ignition sources identified within the area of origin included
       the stove and[/]or some type of human involvement . . . . The electrical outlets
       and . . . devices were eliminated as possible ignition sources. The evidence
       found on the stove indicated that the stove’s right rear burner was on. There
       was a small pot that had partially melted onto the right rear burner with scorch
       marks on the bottom of the pot.

Shoemaker and Caroline put on evidence and argued in accordance with the fire marshal’s

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report, that:

       It is our opinion, based on the observed pattern of fire damage and a systematic
       evaluation of the remaining physical evidence, photographs of the free
       standing electric range[,] and within a reasonable degree of fire science
       certainty that the fire originated in the kitchen at the right rear heating element
       on the electric range.

And taking their claim one step further, they reasoned that “[t]he cause of the fire was the

ignition of a cooking substance due to unattended cooking.”

¶18.   To rebut this claim, Mays attempted, through Vickers’s proposed expert testimony,

to assign causation of the fire to “electrical irregularities.” According to Mays’s appellate

counsel, Vickers could “lead you to the electrical irregularity behind the stove, but is not

comfortable to a reasonable degree of electrical certainty about what happened.” Thus, Mays

was unable to produce an electrical expert in the time allotted for designation of expert

witnesses.

¶19.   The circuit court stated that “[t]he [c]ourt has viewed the evidence in a light most

favorable to the plaintiff, and finds that no genuine issue of material fact exists as to the

plaintiff’s failure to make out a prima facie case of breach of the implied warranty of

habitability.” After reviewing the record, we find no error.

                                       CONCLUSION

¶20.   We find that it was within the circuit court’s discretion to deny Mays’s motion to

substitute an unspecified electrical expert witness. Furthermore, without expert testimony

regarding the proximate cause of the fire, Mays was not able to make a prima facie case for

breach of the implied warranty of habitability. Therefore, summary judgment was properly



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granted.

¶21.   AFFIRMED.

     LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR,
GREENLEE AND TINDELL, JJ., CONCUR. WILSON, J., CONCURS IN PART
AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.




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