Chris Weaver v. Tim Ross d/b/a Ross's Restorations and Tim Ross, Individually

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2022-CA-00426-COA

CHRIS WEAVER APPELLANT

v.

TIM ROSS D/B/A ROSS’S RESTORATIONS APPELLEES
AND TIM ROSS, INDIVIDUALLY

DATE OF JUDGMENT: 03/31/2022
TRIAL JUDGE: HON. TOMIKA HARRIS IRVING
COURT FROM WHICH APPEALED: COPIAH COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: PHILIP CAREY HEARN
CHARLES CASSIDY COLE
ATTORNEYS FOR APPELLEES: JAMES D. SHANNON
HEATHER LYNN HALL
NATURE OF THE CASE: CIVIL - TORTS-OTHER THAN PERSONAL
INJURY & PROPERTY DAMAGE
DISPOSITION: AFFIRMED - 03/19/2024
MOTION FOR REHEARING FILED:

BEFORE BARNES, C.J., McDONALD AND SMITH, JJ.

BARNES, C.J., FOR THE COURT:

¶1. Chris Weaver sued Tim Ross and Tim Ross d/b/a Ross’s Restoration (collectively,

Ross) for negligence due to an alleged improper restoration of Weaver’s 1969 Dodge Dart

and negligent infliction of emotional distress due to the incident. In response, Ross filed a

counterclaim against Weaver alleging tortious interference with business relations,

defamation, and intentional infliction of emotional distress.

¶2. After a trial in the Copiah County Circuit Court, the jury found Ross was not

negligent, and Ross had suffered emotional distress that Weaver intentionally inflicted. The

jury awarded Ross damages in the form of “legal fees/court cost.” Weaver now appeals.
Different counsel representing him on appeal than at trial, Weaver raises four issues, three

of which pertain to evidentiary matters. Weaver claims that the circuit court erred in

denying the admission of his medical records indicating high blood pressure since the

incident and in denying the admission of an invoice from a different restoration company

to show comparative quality and cost. Additionally, Weaver argues that the judgment for

Ross on intentional infliction of emotional distress was against the sufficiency and weight

of the evidence and that the trial court’s award of attorney’s fees for damages on the claim

was unreasonable. Finding no error, we affirm the judgment in favor of Ross and the award

of attorney’s fees in the amount of $58,095.66.

STATEMENT OF FACTS

¶3. In September 2012, Weaver hired Ross to perform restoration work on his “dream

car,” a 1969 Dodge Dart. Ross owned and operated Ross’s Restorations, which was located

in Crystal Springs, Mississippi. The business serviced, painted, and restored classic

automobiles. At the time, Weaver lived near Dallas, Texas. Ross’s restoration work came

highly recommended to Weaver by word of mouth. About one year later, Ross completed

the restoration. Ross had provided regular invoices for the services performed, and Weaver

had timely paid them. The work done on Weaver’s vehicle included certain repairs, paint,

and bodywork. When picking up his vehicle at Ross’s shop, Weaver inspected it and was

satisfied with Ross’s work. Against Ross’s advice, Weaver transported the vehicle back to

Texas on a trailer with inadequate suspension. Weaver paid Ross a total of $20,617.07 for

the restoration work on his vehicle.

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¶4. Once home, Weaver became dissatisfied with the work on the Dodge Dart, claiming

it was not properly repaired or painted to “show quality”1 and was damaged. Weaver

contended that he attempted to resolve his dissatisfaction with Ross, but their

communications broke down. Weaver consulted several other individuals who specialized

in restorations. He testified that they informed him the restoration was improper and would

need to be redone. Aggrieved by this information, Weaver initiated the present lawsuit.

¶5. Ross maintained that he did not damage the vehicle, and the restoration was

“immaculate and pristine.” Ross attributed any damage to the vehicle to the improper

manner in which Weaver transported it back to Texas. Ross stated that Weaver began

publishing defamatory statements on Internet forums that specifically discussed the

restoration of classic automobiles, which Ross contended caused him loss of prospective

customers, damage to his business, and emotional distress.

¶6. In February 2015, Weaver sued Ross for negligent work on his vehicle, seeking

compensatory damages. Weaver also claimed negligent infliction of emotional distress—

that as a result of this incident, he had to be put on blood pressure medicine, and his stress

level was elevated. In June 2015, Ross filed an answer and counterclaim against Weaver,

alleging tortious interference with business relations, defamation, and intentional infliction

of emotional distress. With respect to the latter claim, Ross asserted that due to Weaver’s

unfounded accusations and lawsuit, Ross had stress, anxiety, headaches, elevated blood

pressure, and a diagnosis of situational stress reaction.

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There was conflicting testimony from the parties and witnesses about whether
Weaver told Ross he desired a “show quality” restoration or something less.

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¶7. In November 2021, after discovery and several continuances, the trial occurred.

Right before trial, the circuit court heard Ross’s motion in limine to preclude Weaver from

testifying about his increased blood pressure. The trial court denied the motion, finding that

while Weaver had not been designated as an expert, “a lay witness can testify whether his

health has been affected by an alleged negligence.” However, the trial court stated that

“[t]he jury will determine what weight and credibility to give if such testimony is given

without proof (i.e. certified medical records, expert testimony).” The trial judge ruled from

the bench that while Weaver could testify about his blood pressure, the medical records

would not be admitted due to authentication issues.

¶8. During trial, the court considered whether an invoice from a different company that

restored a different vehicle should be admitted into evidence to show a comparison between

the jobs’ cost and quality. The owner of the company, John Mosley, testified as an expert

witness for Weaver in the field of restoration and collision repair. Mosley was a longtime

owner of a collision repair shop that provided some restoration work. Weaver’s counsel

attempted to enter an invoice for $53,000 from Mosley’s business on a truck restoration,

claiming it was a “similar job.” The invoice had been an exhibit to Mosley’s deposition.

The trial court excluded the invoice but allowed testimony on it.

¶9. Ross had several witnesses testify about the quality of his restorations, the propriety

of his billing, and the negative emotional impact of the lawsuit on him. J. W. Hames, who

also owned a restoration business, met Weaver several times at Ross’s shop and talked to

him on the telephone about the quality of Ross’s restoration of Weaver’s vehicle. At the

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time, Hames had hired Ross to do the paint and bodywork on his own Dodge Dart for

national shows. Hames had been impressed by Ross’s restoration work. Additionally,

Hames testified that on an Internet forum page for vehicle restoration, there had been a chat

between Weaver and others, where Weaver was “smashing Mr. Ross about his work” and

its cost. In these chats, Weaver called Ross a “crook” who did “shotty work.” Weaver also

accused Hames on the chat forum of taking a “kickback” from Ross—a claim Hames denied.

¶10. Additionally, Jennifer Sojourner testified as an expert witness for Ross in her field

as a family nurse practitioner with a specialty in stress reaction disorders. Sojourner first

began treating Ross routinely in August 2012. She testified in detail about treating Ross’s

complaints regarding stress from the instant lawsuit starting in May 2015 through the trial.

Initially, Ross had symptoms of anxiety that were impacting his sleep. She diagnosed him

with situational stress reaction and prescribed him a medication regimen. For the stress, she

prescribed him Xanax, three times a day, which he continued to take through trial.

Sojourner also testified about other life stressors that Ross was experiencing, such as being

the caregiver for his mother-in-law, wife, and two young grandsons, as well as the stress of

owning his own business.

¶11. The jury found that Ross was not negligent and that he suffered damages due to

Weaver’s intentional infliction of emotional distress, awarding Ross “legal fees/court cost.”2

Weaver filed a motion for judgment notwithstanding the verdict (JNOV) or, in the

alternative, a new trial, which the trial court denied. Ross filed a motion to determine

2
At the close of Ross’s case-in-chief, he abandoned his claims of tortious
interference with business relations and defamation.

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attorney’s fees, which was granted. The trial court determined that Weaver should pay Ross

$58,095.66 for attorney’s fees as damages.

ANALYSIS

I. Admission of Evidence

¶12. Weaver claims the trial court erred in denying the admission of medical records on

his blood pressure and an invoice on an allegedly comparative restoration. We shall discuss

each issue in turn.

¶13. This Court reviews the trial court’s decision to admit or exclude evidence under an

abuse-of-discretion standard. Miss. Baptist Health Sys. Inc. v. Kelly, 88 So. 3d 769, 777-78

(¶27) (Miss. Ct. App. 2011) (citing Whitten v. Cox, 799 So. 2d 1, 13 (¶27) (Miss. 2000)).

“Where error involves the admission or exclusion of evidence, [the appellate court] ‘will not

reverse unless the error adversely affects a substantial right of a party.’” Wells v. Tucker,

997 So. 2d 908, 918 (¶33) (Miss. 2008) (quoting Whitten, 799 So. 2d at 13 (¶27)).

A. Weaver’s Medical Records

¶14. Months before trial, in July 2021, Ross moved to exclude Weaver’s testimony about

his blood-pressure issues allegedly caused by Ross’s failure to restore his vehicle. Several

days later, Weaver filed a response, arguing that as a lay witness, Weaver “should be able

to testify as to his own medical condition and records.” On November 17, 2021, a pretrial

hearing was held on Ross’s motion in limine. At that time, Ross’s counsel also argued for

the exclusion of Weaver’s medical records regarding his blood pressure. Ross’s counsel

noted that no authenticated records had been provided, and no physician testimony had been

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given about a causal relationship between the restoration and the high blood pressure.

Counsel for Weaver countered that Weaver himself obtained the medical records from the

physician’s office, and, thus, they should be admissible. The trial court disagreed, ruling the

medical records were inadmissible because they lacked a certificate of authentication or an

affidavit from a custodian of records. In an order entered the same day, the trial court denied

Ross’s motion and ruled that Weaver could testify about his own health.

¶15. Weaver now argues that the trial court’s late ruling on the first day of trial prejudiced

him by preventing him from authenticating his medical records. Weaver complains that the

trial court had “previously ruled” on Ross’s motion to exclude Weaver’s testimony in its

order dated November 17, 2021. He claims the order indicated the medical records would

be allowed into evidence, pointing to this sentence, “The jury will determine what weight

and credibility to give if such testimony is given without proof (i.e. certified medical records,

expert testimony).” (Emphasis added). Weaver claims he was prejudiced at the start of trial

when the trial court ruled on the necessity of authenticating the medical records, “thus

denying him both the ability to admit the records and the opportunity to obtain the

certification.”

¶16. However, Weaver’s argument about the timing of the trial court’s rulings is amiss.

The order allowing Weaver’s testimony was entered on the same day as the pretrial

evidentiary hearing and the denial of the motion regarding medical records: November 17,

2021—the first day of trial. There was no “previous” ruling on the testimony—it all

occurred on the same day. Further, we do not read the order to anticipate that Weaver’s

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medical records would be admitted. This argument is without merit.

¶17. Additionally, Ross’s motion in limine and Weaver’s response were made in July

2021, months before trial. In that time, Weaver could have requested that the physician’s

office include a certification of authenticity with the medical records when he obtained them,

knowing they would be used at trial. Further, there was no waiver of the authentication

requirement, such as by a pre-trial order. Moreover, Weaver was not prejudiced by their

exclusion because Ross was not found negligent for his restoration job. Further, Weaver

was allowed to testify at length about his medical condition and the information in the

medical records. Thus, the trial court did not abuse its discretion in denying the admission

of Weaver’s unauthenticated medical records.

B. Invoice

¶18. At trial, Weaver sought to admit an invoice during the testimony of his expert

Mosley; the invoice was an exhibit to Mosley’s deposition. In 2018, Mosley had examined

Weaver’s vehicle and Ross’s invoices for his work. Mosley’s opinion of Ross’s restoration

was that “when you look at it, it’s not a bad job. . . . [T]he car looks nice and everything, . . .

but if it’s supposed to be a restoration, it falls short.” Mosley went on to testify about

restorations he had performed in the past, the work entailed, and their cost. He also testified

that the last restoration he did was on a Ford truck, at which point Weaver’s counsel

attempted to enter the invoice for the job, totaling $53,000, into evidence. Counsel claimed

it was a similar job to Ross’s restoration but admitted to the trial court that not all the work

done to the truck was done to Weaver’s vehicle. The trial court sustained defense counsel’s

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objection to the invoice’s admission.

¶19. Weaver now argues the trial court erred in excluding the invoice, the purpose of

which was to show the jury an example of another restoration job’s work and cost.

However, the invoice did not mention or involve a Dodge Dart but a Ford truck, and the

work done was not necessarily comparable. If admitted, the invoice had the potential to

confuse the jury. The trial court allowed Mosley to testify at length about various

restorations and costs compared to Ross’s restoration. Therefore, the trial court did not

abuse its discretion in denying the invoice’s admission. Weaver was not prejudiced by its

exclusion.

II. Sufficiency and Weight of the Evidence

¶20. Weaver argues the judgment in favor of Ross’s counterclaim for intentional infliction

of emotional distress was against the weight of the evidence.3 Therefore, he claims the trial

court erred in denying his motion for a JNOV or, alternatively, a new trial.

¶21. A motion for JNOV challenges the legal sufficiency of the evidence, and its grant or

denial is reviewed de novo. Wilty v. Alpha, 99 So. 3d 830, 833-34 (¶18) (Miss. Ct. App.

2012) (quoting InTown Lessee Assocs. v. Howard, 67 So. 3d 711, 718 (¶22) (Miss. 2011)).

The appellate court “will affirm the denial of a JNOV motion if there is substantial evidence

to support the verdict.” Id. Substantial evidence is “evidence of such quality and weight

that reasonable and fair-minded men in the exercise of impartial judgment might reach

different conclusions.” Condere Corp. v. Moon, 880 So. 2d 1038, 1042 (¶12) (Miss. 2004)

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On appeal, Weaver only argues against the weight of the evidence, and Ross only
responds about the sufficiency of the evidence; therefore, we shall discuss both.

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(quoting Strong v. Nicholson, 580 So. 2d 1288, 1292 (Miss. 1991)). The evidence will be

considered “in the light most favorable to the appellee, giving the party the benefit of all

favorable inferences that may be reasonably drawn from the evidence.” InTown Lessee, 67

So. 3d at 718 (¶22) (quoting Spotlite Skating Rink Inc. v. Barnes ex rel. Barnes, 988 So. 2d

364, 368 (¶10) (Miss. 2008)).

¶22. Alternatively, we review a ruling on a motion for a new trial challenging the weight

of the evidence for abuse of discretion. Johnson v. St. Dominics-Jackson Mem’l Hosp., 967

So. 2d 20, 23 (¶8) (Miss. 2007). Credible evidence will be “viewed in the light most

favorable to the non-moving party.” Trustmark Nat’l Bank v. Jeff Anderson Reg’l Med. Ctr.,

792 So. 2d 267, 274 (¶18) (Miss. Ct. App. 2000). “The jury is the ultimate judge of the

weight of the evidence and the credibility of the witnesses.” Id. A jury verdict “will not be

set aside unless the verdict is so contrary to the overwhelming weight of the evidence that

to allow it to stand would sanction an unconscionable injustice.” Id.

¶23. To succeed on a claim for intentional infliction of emotional distress, the plaintiff

must show:

(1) the defendant acted willfully or wantonly toward the plaintiff by
committing certain described actions; (2) the defendant’s acts are ones that
evoke outrage or revulsion in civilized society; (3) the acts were directed at,
or intended to cause harm to, the plaintiff; (4) the plaintiff suffered severe
emotional distress as a direct result of the acts of the defendant; and (5) such
resulting emotional distress was foreseeable from the intentional acts of the
defendant.

Jones v. City of Hattiesburg, 228 So. 3d 816, 819 (¶8) (Miss. Ct. App. 2017) (citing Rainer

v. Wal-Mart Assocs. Inc., 119 So. 3d 398, 403-04 (¶19) (Miss. Ct. App. 2013)). “The

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standard for intentional infliction of emotional distress “is whether the defendant’s behavior

is malicious, intentional, willful, wanton, grossly careless, indifferent, or reckless.” Id.

(citing Little v. Collier, 759 So. 2d 454, 457 (¶13) (Miss. Ct. App. 2000)).

¶24. Weaver argues that the evidence showed Ross had multiple contributing causes of

stress, not just the lawsuit, which caused his stress diagnosis and high blood pressure.

Ross’s nurse practitioner Sojourner testified that Ross had trouble sleeping as early as

August 2012 and suffered stress from owning his own business as well as his numerous

caregiving responsibilities.

¶25. Examined in the light most favorable to Ross, there was substantial evidence of

intentional infliction of emotional distress by Weaver. Sojourner testified in detail that

Ross’s diagnosis of situational stress disorder was due to the lawsuit even though he was

experiencing other stressors as well. She testified at length as to when she saw Ross, what

she treated him for, and how, over the nine years of her treatment. Further, Hames testified

about viewing numerous negative comments about Ross’s work that Weaver had posted on

an Internet chat forum that Ross testified caused him “tremendous stress.” There was

substantial evidence to support Ross’s claim for intentional infliction of emotional distress.

Further, the trial court did not abuse its discretion in denying Weaver’s motion for a new

trial. The jury found the weight of the evidence and credibility of the witnesses supported

Ross’s claim. The jury verdict was not “so contrary to the overwhelming weight of the

evidence that to allow it to stand would sanction an unconscionable injustice.” Trustmark,

792 So. 2d at 275 (¶18).

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III. Attorney’s Fees

¶26. Weaver argues the trial court’s grant of attorney’s fees as damages for Ross’s

intentional infliction of emotional distress claim was unreasonable and unsupported under

Mississippi law.

¶27. It is well established that the assessment of attorney’s fees must be reasonable.

BellSouth Pers. Commc’ns LLC v. Bd. of Sup’rs of Hinds Cnty., 912 So. 2d 436, 445 (¶30)

(Miss. 2005). In Mississippi, the reasonableness of attorney’s fees is governed by Rule

1.5(a) of the Mississippi Rules of Professional Conduct, otherwise known as the McKee

factors.4 Id. at 445-46 (¶31) (citing McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982)).

This Court reviews the trial court’s decision on whether to award attorney’s fees and the

amount for an abuse of discretion. City of Gulfport v. Cowan Rd. & Hwy 90 LLC, 352 So.

3d 592, 598 (¶18) (Miss. 2022) (citing Miss. Power & Light Co. v. Cook, 832 So. 2d 474,

478 (¶7) (Miss. 2002)). “The fixing of reasonable attorneys’ fees is a matter ordinarily

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The factors to be considered by the trial court in determining the reasonableness of
a fee are:

(1) the time and labor required, the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal service properly; (2) the
likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the lawyer; (3) the fee
customarily charged in the locality for similar legal services; (4) the amount
involved and the results obtained; (5) the time limitations imposed by the
client or by the circumstances; (6) the nature and length of the professional
relationship with the client; (7) the experience, reputation, and ability of the
lawyer or lawyers performing the services; and (8) whether the fee is fixed or
contingent.

BellSouth, 912 So. 2d 436, 445-46 (¶31) (citing Miss. R. of Prof. Conduct 1.5(a)).

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within the sound discretion of the trial court.” Id. (quoting Gilchrist Tractor Co. v.

Stribling, 192 So. 2d 409, 418 (Miss. 1996)). The “trial court’s decision regarding

attorneys’ fees will not be disturbed by an appellate court unless it is manifestly wrong.” Id.

(quoting Tupelo Redevelopment Agency v. Gray Corp., 972 So. 2d 495, 521 (¶81) (Miss

2007)).

¶28. Here, the jury found Ross should be awarded attorney’s fees as damages for Weaver’s

intentional infliction of emotional distress claim. Ross filed a motion to determine attorney’s

fees, attaching a detailed, itemized billing for legal fees and expenses for the entire case from

May 2015 through November 2021, totaling $80,081.23. The trial court held a hearing on

the motion; however, Weaver did not include its transcript in the appellate record. The trial

court’s order on the fees stated that at the hearing, the defense counsel’s billing records

manager testified. The trial court reduced Ross’s attorney’s fees to $58,095.66.

¶29. Weaver now complains that the trial court did not engage in a Rule 1.5 analysis

regarding attorney’s fees. He argues that the trial court must provide a detailed order

considering the factors in Rule 1.5.5 Further, he contends that the award was not supported

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Weaver cites Obert Law Group P.A. v. Holt, 328 So. 3d 622 (Miss. 2021), for the
proposition that the trial court must provide a detailed order analyzing the reasonableness
of attorney’s fees. In Obert Law Group, the supreme court affirmed the chancellor’s finding
that attorney’s fees collected in the administration of an estate were unreasonable. Id. at 626
(¶8). The chancellor entered a detailed order considering the factors of Rule 1.5, finding
unreasonable billing entries for clerical work and the legal work performed. Id. at 626-27
(¶¶8, 14). Weaver inaccurately contends that under Obert Law Group, the trial court
“should provide ‘a detailed order’ that considers these factors” and “set forth the basis for
the award including things such as findings related to specific time entries,” as well as
whether “the results obtained were minimal given the amount of money charged” for
representation. Id. at 626-27 (¶¶8, 14-15). Weaver, however, takes these statements out of
context. The supreme court in Obert did not set these matters as requirements but, instead,

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by substantial, credible evidence, as required by BellSouth. We disagree.

¶30. The trial court’s order, while lacking specific findings as to the Rule 1.5 factors,

states that the court considered the motion, which included a detailed billing attachment

spanning over six years of legal services, as well as testimony from the billing records

manager of Weaver’s counsel. We find the award was supported by substantial, credible

evidence. Moreover, the trial court did not merely accept the $80,081.23 in fees submitted

by Ross’s counsel but reduced it by over $20,000. Accordingly, the trial court did not abuse

its discretion in awarding $58,095.66 in attorney’s fees to Ross.

CONCLUSION

¶31. The trial court did not abuse its discretion in excluding Weaver’s unauthenticated

medical records of his blood pressure or the invoice for a restoration by a different

restoration company on a different vehicle. Substantial evidence supports the jury’s verdict

in favor of Ross on intentional infliction of emotional distress, and the trial court’s award

of attorney’s fees after a motion and hearing was reasonable and supported under

Mississippi law.

¶32. AFFIRMED.

CARLTON, P.J., GREENLEE, WESTBROOKS, McDONALD AND SMITH,
JJ., CONCUR. McCARTY, J., SPECIALLY CONCURS WITH SEPARATE
WRITTEN OPINION, JOINED BY GREENLEE, WESTBROOKS, McDONALD,
LAWRENCE AND SMITH, JJ. LAWRENCE AND EMFINGER, JJ., CONCUR IN
PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.
WILSON, P.J., CONCURS IN PART AND IN THE RESULT WITH SEPARATE
WRITTEN OPINION, JOINED BY LAWRENCE, McCARTY AND EMFINGER,
JJ.; GREENLEE, WESTBROOKS, McDONALD AND SMITH, JJ., JOIN IN PART.

discussed them as facts and findings specific to that case.

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McCARTY, J., SPECIALLY CONCURRING:

¶33. I agree with the majority that the jury’s verdict in this case should be affirmed. It is

important to emphasize that the verdict for the car restorer’s counterclaim for intentional

infliction of emotional distress and resulting attorney’s fees do not run afoul of longstanding

precedent. Our law does not allow recovery for emotional distress damages that result solely

from the litigation process.

¶34. Several decades ago, our Supreme Court observed that “common experience has long

ago taught that, under the best of circumstances, a citizen’s encounter with the legal process

is a source of great anxiety.” Singleton v. Stegall, 580 So. 2d 1242, 1247 (Miss. 1991).

“The average litigant experiences substantial emotional distress from the rigors of an action,

with all of its traumatic impact.” Id. (internal quotation omitted). “This trauma is felt by

parties enjoying the best of legal counsel.” Id.

¶35. Accordingly, in terms of the legal malpractice action before it, the Supreme Court

held that the plaintiff “must show that [his lawyer’s] defaults have proximately caused him

substantial emotional distress that may be differentiated from that attendant upon his legal

plight.” Id.

¶36. In other words, a person was barred from recovering emotional distress damages

simply for the stress of the legal process, but the person could recover for the underlying

actions, omissions, or breaches that led to instituting legal suit. We followed this precedent

some years later in finding that emotional distress damages were available in a legal

malpractice suit—“only for emotional distress fairly separable from that proximately flowing

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from his encounter with the legal process.” Lancaster v. Stevens, 961 So. 2d 768, 773 (¶18)

(Miss. Ct. App. 2007).

¶37. This is in accord with the general rule in state and federal courts that a person may

not recover damages simply because of “litigation-induced stress.” Picogna v. Bd. of Educ.

of Twp. of Cherry Hill, 671 A.2d 1035, 1038 (N.J. 1996) (explaining how state “courts are

virtually unanimous in holding that litigation-induced stress is not recoverable as a separate

component of damages” and that “federal court decisions are unanimous in holding that

litigation-induced stress may not be recovered as damages”); Zimmerman v. Direct Fed.

Credit Union, 262 F.3d 70, 79 (1st Cir. 2001) (stating “the heavy weight of authority holds

that litigation-induced stress is not ordinarily recoverable as an element of damages”).

¶38. There is a sensible reason why: if litigation-induced stress were recoverable as

damages, it would be nearly impossible to pursue or defend any lawsuit due to the threat of

a damages award merely from the presence of the suit itself. As Judge Posner reasoned

many moons ago, “[i]t would be strange if stress induced by litigation could be attributed

in law to the tortfeasor” since “[a]n alleged tortfeasor should have the right to defend

himself in court without thereby multiplying his damages.” Stoleson v. United States, 708

F.2d 1217, 1223 (7th Cir. 1983).6

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We also have procedural safeguards in place to curtail the improper use of litigation
which do allow the payment of fees. See MRCP 11(b) (“If any party files a motion or
pleading which, in the opinion of the court, is frivolous or is filed for the purpose of
harassment or delay, the court may order such a party, or his attorney, or both, to pay to the
opposing party or parties the reasonable expenses incurred by such other parties and by their
attorneys, including reasonable attorneys’ fees”); Miss. Code Ann. § 11-55-5(1) (Rev. 2019)
(providing that costs and fees may be awarded if “an attorney or party brought an action, or
asserted any claim or defense, that is without substantial justification, or that the action, or

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¶39. Ross, the restorer of the Dodge, included a counterclaim with three counts in his

answer. He alleged in that pleading and during trial that he brought the ‘69 Dart up to

“immaculate and pristine” condition and that Weaver was happy with it. But Weaver then

soured and began to blame Ross publicly and privately for what he contended was

substandard work, including “divert[ing] prospective customers away from Ross and his

business[.]” So Ross counter-claimed for tortious interference with business relations,

defamation, and the intentional infliction of emotional distress.

¶40. Crucially, the claim for emotional distress was predicated solely on Weaver’s

intentionally causing him harm before the lawsuit, including publishing what Ross

contended were false statements.

¶41. While at trial some of the testimony wandered into the realm of post-suit litigation

stress, there was ample proof in the record that the claim was based on Weaver’s extreme

actions prior to filing. Any consumer, especially one who commissions custom work, can

be disappointed by a purchased product. But Weaver didn’t express mere disappointment

but instead a vicious and unfounded view that he had been intentionally cheated. It wasn’t

just that he alleged in one popular online forum that Ross had done shoddy work—it was

that he believed Ross was “a crook” and had even given a kickback to another restoration

professional to obtain the Dart job. Critically, the jury heard from this other restorer that

Ross “does real good work for a fair price.”

¶42. Given this record, it’s clear the proof and verdict in this case didn’t conflict with our

any claim or defense asserted, was interposed for delay or harassment, or if it finds that an
attorney or party unnecessarily expanded the proceedings by other improper conduct”).

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prohibition on damages for litigation-induced stress, and this prohibition was not specifically

raised in the pleadings, in the trial below, or on appeal. I write specially only because it

intersects with this rarely explored body of law that safeguards access to our court system.

GREENLEE, WESTBROOKS, McDONALD, LAWRENCE AND SMITH, JJ.,
JOIN THIS OPINION.

WILSON, P.J., CONCURRING IN PART AND IN RESULT:

¶43. I concur with Parts I and II of the majority opinion and concur that the judgment of

the circuit court should be affirmed. I write separately to address two issues. First, although

the jury’s award of “legal fees/court cost” as damages was improper, Weaver waived any

objection to the improper verdict. In future cases, the trial judge should instruct the jury to

continue deliberations and return a verdict in proper form. Second, Weaver’s challenge to

the trial judge’s order granting Ross’s motion to determine attorney’s fees is procedurally

barred because Weaver failed to ensure that the transcript of the hearing on the motion was

included in the record on appeal.

¶44. During the jury instruction conference, the parties agreed on the form of the verdict,

which the jury completed and returned as follows:

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¶45. The jury’s award of “legal fees/court cost” as damages was improper. “Mississippi

follows the American rule regarding attorney fees: unless a statute or contract provides for

imposition of attorney fees, they are not recoverable. When there is no contractual provision

or statutory authority providing for attorney fees, they may not be awarded as damages

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unless punitive damages are also proper.” Century 21 Deep S. Props. Ltd. v. Corson, 612

So. 2d 359, 375 (Miss. 1992) (citation omitted). Here, attorney’s fees are not authorized by

contract or statute, and neither the trial judge nor the jury determined that punitive damages

were proper.7 Moreover, even in cases in which punitive damages and attorney’s fees may

be proper, the jury does not award attorney’s fees as compensatory damages. Rather, “there

must be an award of compensatory damages before punitive damages and attorney’s fees

may be awarded.” Purvis v. Barnes, 791 So. 2d 199, 203 (¶12) (Miss. 2001) (emphasis

added). Finally, “attorney’s fees are not an issue to be decided by the jury. Whether to

award and the amount of attorney’s fees are matters committed to the sound discretion of the

trial judge.” Mitchell v. Broadway Transfer & Storage Co., 749 So. 2d 289, 290 (¶9) (Miss.

Ct. App. 1999) (emphasis added). For all these reasons, the jury should have been instructed

to continue deliberations and quantify Ross’s damages, if any, for his mental and emotional

7
Ross’s counter-complaint did not include a demand for punitive damages, and Ross
did not submit any proposed jury instructions regarding any claim by him for punitive
damages. After the jury returned its verdict, counsel for Ross approached the bench and
expressly waived any claim for punitive damages.

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distress, not his attorney’s fees and court costs.8, 9

¶46. However, neither party objected to the form of the verdict before or after the jury was

discharged. Indeed, Weaver has never argued that the jury’s award of “legal fees/court cost”

was legally improper or that the trial judge lacked authority to determine attorney’s fees.10

Rather, Weaver argues that the jury’s verdict on Ross’s counterclaim “was against the

weight of the evidence” and that the trial judge’s award of attorney’s fees was “unreasonable

and unsupported under Mississippi law.” Accordingly, Weaver has waived any challenge

to the form of the verdict. See, e.g., Mack Trucks Inc. v. Tackett, 841 So. 2d 1107, 1117

(¶31) (Miss. 2003) (“It is well established that an appellant must brief an issue for it to be

reviewed on appeal.”). I concur that the judgment in this case should be affirmed for that

reason. But in future cases where a jury returns such a verdict, the trial judge must instruct

8
Adams v. Green, 474 So. 2d 577, 581 (Miss. 1985) (Even absent a request by a
party, “the Supreme Court has placed the responsibility and duty squarely on the shoulders
of the trial judge to, on [his or her] own motion, order the jury to return to the jury room to
reform and reword their verdict and to bring in a verdict in proper form.”); Wood v. Cooley,
78 So. 3d 920, 925-26 (¶11) (Miss. Ct. App. 2011) (holding that the trial judge properly
instructed the jury to continue its deliberations after the jury returned a verdict awarding
“attorneys’ fees and court costs” rather than quantifying the plaintiff’s damages); see also
UCRCCC 3.10 (“If a verdict is so defective that the court cannot determine from it the intent
of the jury, the court shall, with proper instructions, direct the jurors to reconsider the
verdict.”).
9
The jury’s error in this case is understandable. The jury was not given any
instructions on Ross’s counterclaim for intentional infliction of emotional distress or how
to determine Ross’s damages. The jury was instructed if they found for Weaver, Weaver’s
“reasonable compensation, if any, [did] not include attorney’s fees.”
10
Weaver’s response to Ross’s motion to determine attorney’s fees argued only that
the amount of attorney’s fees requested was “unreasonable” and should “be reviewed by the
[trial court] . . . and set . . . at a reasonable amount.”

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the jury to continue deliberations and return a verdict in proper form.

¶47. In addition, Weaver’s challenge to the trial judge’s award of attorney’s fees is

procedurally barred because the record is insufficient for this Court to address it. The trial

judge held a hearing and considered testimony on Ross’s motion for attorney’s fees, but

Weaver failed to see that a transcript of the hearing was included in the record. Weaver

initially designated “[t]he transcripts of any hearings or witness testimony” to be included

in the record on appeal, but the record compiled by the circuit clerk and transmitted to this

Court does not contain a transcript of the hearing on Ross’s motion to determine attorney’s

fees. “As the appellant seeking a reversal of the trial court’s order, it was [Weaver’s] duty

to see to it that the record contained all data essential to an understanding and presentation

of matters relied upon for reversal on appeal.” Pratt v. Sessums, 989 So. 2d 308, 310 (¶6)

(Miss. 2008). Specifically, Weaver had a duty under Mississippi Rule of Appellate

Procedure 10(b)(5) to review the record compiled by the circuit clerk and identify any

necessary corrections. Id. at (¶8). Because Weaver failed to do so and failed to see that a

transcript of the relevant hearing was included in the record on appeal, I would hold that

Weaver’s argument is procedurally barred without addressing it on the merits.

LAWRENCE, McCARTY AND EMFINGER, JJ., JOIN THIS OPINION.
GREENLEE, WESTBROOKS, McDONALD AND SMITH, JJ., JOIN THIS
OPINION IN PART.

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