Davidson v. North Cent. Parts, Inc.

737 So. 2d 1015, 1998 WL 812317
CourtCourt of Appeals of Mississippi
DecidedNovember 24, 1998
Docket97-CA-00099 COA
StatusPublished
Cited by5 cases

This text of 737 So. 2d 1015 (Davidson v. North Cent. Parts, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davidson v. North Cent. Parts, Inc., 737 So. 2d 1015, 1998 WL 812317 (Mich. Ct. App. 1998).

Opinion

737 So.2d 1015 (1998)

Joe DAVIDSON, Appellant,
v.
NORTH CENTRAL PARTS, INC., West Machine Shop, Inc., and West Implement Company, Inc., Appellees.

No. 97-CA-00099 COA.

Court of Appeals of Mississippi.

November 24, 1998.
Rehearing Denied February 9, 1999.
Certiorari Denied April 29, 1999.

Wayne O. Lee, Greenville, for Appellant.

Benjamin E. Griffith, Cleveland, for Appellee.

Before BRIDGES, C.J., and COLEMAN and HERRING, JJ.

BRIDGES, C.J., for the Court:

¶ 1. Joe Davidson challenges the grant of summary judgment by the Circuit Court of Bolivar County in favor of North Central Parts, Inc. (North Central). Davidson contends that the trial court erred by (1) failing to grant a continuance upon substitution of counsel; (2) granting summary judgment to North Central; and (3) dismissing his motion for summary judgment. Finding that summary judgment was inappropriate, we reverse and remand this case for further proceedings.

FACTS

¶ 2. On or about January 21, 1991, Davidson brought his John Deere 4640 tractor to North Central to have a used motor installed for approximately $3500.00. When North Central discovered that the motor would not fit properly onto the tractor, Davidson stated that North Central rebuilt the existing motor without any prior notification and without his consent. On or around March 1991, North Central sent Davidson a repair bill for $13,382.02. Davidson disputed the bill arguing that it was not what they had previously discussed, and that the bill was grossly excessive and overstated. When Davidson *1016 failed to pay the bill, North Central gave the bill to West Implement Company (West) for collection. Rudy Criss, a West representative, stated that he contacted Davidson and secured his permission to sell the tractor in order to pay off the outstanding debt. However, Davidson stated that he never told Criss he could sell the tractor nor did he sign any bill of sale. West sold the tractor on June 24, 1991, for $12,599.96 to another buyer. Davidson stated that a bill of sale was issued to the new buyer without any authority from him. Davidson charged North Central with conversion of the tractor, and North Central filed a motion for summary judgment. Prior to the hearing, Davidson also filed a motion for summary judgment. The trial court granted summary judgment in favor of North Central. Subsequent to the entry of summary judgment, Davidson moved for a new trial arguing that the court erred in failing to grant him a continuance and based on the court's finding that he was a "merchant" according to Miss.Code Ann. § 85-7-101 (Rev.1991). The motion was denied, and Davidson now appeals.

ARGUMENT AND DISCUSSION OF LAW

¶ 3. It is well settled in Mississippi that an appellate court reviews a trial court's decision to grant summary judgment de novo. Spartan Foods Systems, Inc. v. American Nat'l Ins. Co., 582 So.2d 399, 402 (Miss.1991). "The evidentiary matters —admissions in pleadings, answers to interrogatories, depositions, affidavits—are viewed in the light most favorable to the nonmoving party, as he is given the benefit of every reasonable doubt." Id. The central focus of the review of an order granting summary judgment is whether there was "no genuine issue of material fact." Erby v. North Miss. Med. Ctr., 654 So.2d 495, 499 (Miss.1995). A fact will be considered material if it has a tendency to decide any of the issues of the case which have been properly raised by the litigants. Pearl River County Bd. of Supervisors v. South East Collections Agency, Inc., 459 So.2d 783, 785 (Miss.1984). If this Court finds beyond a reasonable doubt that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law, we will affirm the trial court's decision to grant summary judgment. Spartan Foods, 582 So.2d at 402. However, if we find that there are disputed issues which are material to the case, we will reverse, for the purpose of a motion for summary judgment is not to resolve issues of fact but to determine whether issues of fact exist. Id. Above all, a trial court should take great care in granting a motion for summary judgment. Palmer v. Anderson Infirmary Benevolent Ass'n, 656 So.2d 790, 794 (Miss.1995). If the trial court is doubtful as to whether a genuine issue of material fact exists, it should deny the motion for summary judgment. American Legion Ladnier Post Number 42, Inc. v. City of Ocean Springs, 562 So.2d 103, 106 (Miss.1990).

I. WHETHER THE COURT ERRED IN FAILING TO GRANT A CONTINUANCE.

¶ 4. Davidson argues on appeal that the court erred in not granting him a continuance when he appointed new counsel to represent him. Davidson contends that since neither party would have been prejudiced, the court should have granted the continuance. North Central argues that Davidson's motion for continuance failed to conform to the requirements of Rule 56(f) of the Mississippi Rules of Civil Procedure.[1] North Central contends that since Davidson failed to file any affidavits as the non-moving party, it was within the trial judge's discretion to deny Davidson's motion for a continuance. In addition, *1017 North Central argues that Davidson failed to demonstrate how a continuance would enable him to rebut their showing of the absence of a genuine factual issue.

¶ 5. In Thomas v. Hilburn, 654 So.2d 898, 903 (Miss.1995), the supreme court stated that "[t]he granting of a continuance is largely a matter within the sound discretion of the trial court and unless manifest injustice appears to have resulted from a denial, this Court should not reverse." Furthermore, the supreme court held "that the trial court may exercise `reasonable latitude' in the setting and continuance of cases." After careful review of the record, this Court finds no showing that Davidson suffered any injustice from the trial judge's denial of his motion for continuance. Therefore, this Court finds that there was no abuse of discretion in denying the continuance. This issue is without merit.

II. WHETHER THE COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE APPELLEES.
III. WHETHER THE COURT ERRED IN DENYING THE APPELLANT'S MOTION FOR SUMMARY JUDGMENT.

¶ 6. Since Davidson's Issue II and III both deal with the issue of summary judgment, we shall discuss them together. Davidson argues on appeal that North Central wrongfully converted his tractor by selling it without his consent or knowledge according to Miss.Code Ann. § 85-7-101 (Rev.1991).[2] North Central contends that Miss.Code Ann. § 85-7-101(Rev.1991) is inapplicable since Davidson is considered a "merchant" under Miss.Code Ann. § 75-2-104 (Rev.1991).[3] North Central argues that since Davidson is considered a "merchant," the transaction that occurred between the two parties falls under the "merchant's exception" which states:

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Bluebook (online)
737 So. 2d 1015, 1998 WL 812317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davidson-v-north-cent-parts-inc-missctapp-1998.