IN THE SUPREME COURT OF MISSISSIPPI
NO. 2004-CT-00155-SCT
NATCHEZ ELECTRIC AND SUPPLY CO., INC.
v.
WAYNE JOHNSON d/b/a JOHNSON ELECTRIC
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 10/17/2003
TRIAL JUDGE: HON. ROBERT B. HELFRICH
COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: CLIFFORD C. WHITNEY, III
ATTORNEY FOR APPELLEE: SCOTT JOSEPH SCHWARTZ
NATURE OF THE CASE: CIVIL - CONTRACT
DISPOSITION: THE JUDGMENT OF THE COURT OF THE
COURT OF APPEALS IS REVERSED. THE
JUDGMENT OF THE FORREST COUNTY
CIRCUIT COURT IS REINSTATED AND
AFFIRMED - 01/18/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
DIAZ, JUSTICE, FOR THE COURT:
¶1. In this open account case where the jury returned a verdict for the defendant we are
asked whether the trial court erred in denying a judgment notwithstanding the verdict.
Because reasonable jurors could have arrived at a verdict of no liability, we reverse our Court
of Appeals and affirm the trial court.
FACTS
¶2. The Court of Appeals did an excellent job of reciting the facts in this case, and they
do not need to be repeated in depth. See Natchez Elec. & Supply Co. v. Johnson, 2006
Miss. App. LEXIS 118, *2-*8 (Miss. Ct. App. Feb. 14, 2006). The critical facts are as
follows: Wayne Johnson operated an electrical contracting business as Johnson Electric,
with 27 employees and 16 trucks. Natchez Electric is a company that sells electrical
materials, and is where Johnson often purchased materials.
¶3. According to Stacy Taggert, a manager of Natchez Electric, Johnson “was probably
. . . the largest commercial contractor [Natchez Electric] was dealing with” out of their
Hattiesburg branch, and over the years he has purchased “[h]undreds of thousands” of items
from the company. Johnson and Taggert were “good business associates, [and] good
friends;” Taggert estimated that Johnson had purchased “a little over $200,000” in materials
from Natchez Electric.
¶4. The relationship later soured when Johnson got behind on his payments to Natchez
Electric. At the heart of this dispute were many allegedly unpaid invoices for material. The
company ultimately sued him for the debt, which it alleged to be over $40,000. The suit was
instituted under the open account statute, Miss. Code Ann. § 11-53-81 (Rev. 2002), and
complied with M.R.C.P. 10(d) by attaching copies of the invoices. At trial, the jury found
in favor of Johnson, but our Court of Appeals determined that Natchez Electric was entitled
to multiple judgments notwithstanding the verdict. In addition, the Court of Appeals
rendered the judgment that Johnson owed Natchez Electric $39,098.83.
STANDARD OF REVIEW
¶5. When reviewing the denial of a JNOV, we consider the evidence in the light most
favorable to the appellee, and give that party the benefit of all favorable inferences that may
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be reasonably drawn from the evidence. Blake v. Clein, 903 So. 2d 710, 731 (Miss. 2005).
If the facts considered in that light point so overwhelmingly in favor of the party requesting
the JNOV that reasonable persons could not have arrived at a contrary verdict, we will
reverse and render. Id.
¶6. If there is substantial evidence in support of the verdict we will affirm the denial of
the JNOV. Id. “Substantial evidence” is information of such quality and weight that
reasonable and fair minded jurors in the exercise of impartial judgment might have reached
different conclusions. Id.
DISCUSSION
¶7. The primary issue before us is whether the evidence presented at trial was sufficient
to defeat a motion for judgment notwithstanding the verdict. As we are bound to do, we will
examine the evidence in the light most favorable to Johnson, who opposed the JNOV.
¶8. Natchez Electric, the plaintiff in this case, put on three witnesses: Natchez Electric
manager Stacy Taggert, Natchez Electric controller Kally Dennig, and Jim Rayborn, a former
regular customer of Natchez Electric. Johnson’s defense witnesses featured Chris
Fortenberry, a former employee of Natchez Electric, Johnson himself, and Johnnie Fairchild,
a former employee of Natchez Electric who worked at Robinson Electric Supply. The
testimony of these witnesses can be loosely grouped into several relevant categories which
we will examine in turn.
I. The Billing System.
¶9. There was multiple testimony that the billing system Natchez Electric used was
sometimes flawed, including testimony from current employees as to this fact. Mr. Taggert
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noted repeatedly that the system was flawed: “[w]e were using a new pricing service . . . we
were working through the debugging period of that. There were problems that we should
have caught that we didn’t . . . .” Mr. Taggert admitted that “[w]e have made mistakes.” The
following exchange took place on cross-examination:
Q. Have you ever had any problems with your billings through your
computer system?
A. Yes, sir, occasionally we did.
Q. Did you have any problems with your billing through your computer
system with Mr. Johnson?
A. Yes, we did.
Examining some of the invoices assessed to Mr. Johnson, Mr. Taggert demonstrated that
sometimes the computer billing system could result in error:
Q. Would you . . . tell the jury what the right charge should have been [for
the product]?
A. . . . The right charge should have been $25 per hundred, and it states
in here per each.
Q. And it also says that Mr. Johnson was charged $250 for ten of those
items, correct?
A. Correct.
Q. What should he have been charged?
A. $2.50, I believe.
There were several other instances in the trial transcript where Mr. Taggert detailed how Mr.
Johnson had been erroneously overcharged. On cross, Mr. Taggert admitted multiple times
the invoices were flawed; when asked “[a]nd there have been incorrect amounts charged to
Mr. Johnson on certain things?” he replied “Yes.”
¶10. The problems with overbilling eventually resulted in a credit of $19,025 being issued
to Mr. Johnson. Indeed, Natchez Electric conceded the overbilling problem. Ms. Dennig,
who handled the bookkeeping duties for the company, was asked: “Obviously, Natchez
4
Electric had some billing problems and some invoicing problems and some computer
problems dealing with Mr. Johnson’s account because a $19,025 credit for over-billing was
issued?” The bookkeeper answered simply “correct.” At one point, a letter was introduced
into evidence that was written by Natchez Electric’s bookkeeper and sent to Mr. Johnson’s
bookkeeper; it included the language “Sorry for the problems my mess-up is causing.”
II. Problems with Staff.
¶11. In addition to the multiple problems with the computer system and overbilling which
Natchez Electric admitted, there was some evidence of a human problem. While it was
denied by Natchez Electric, this version of events was founded on a theory that Natchez
Electric had discovered that Chris Fortenberry, an employee, had been stealing from the
company and had overbilled Mr. Johnson to cover his theft. At trial, Mr. Fortenberry
testified to the following:
Q. And what did Mr. Taggert tell you?
A. It was on a situation to where Wayne [Johnson] had gone and Mr.
Taggert had -- I would say accused me of taking material and billing
Wayne out for it.
Q. What did Mr. Taggert tell you about that yesterday?
A. He said all they were doing is looking to see about it, but it didn't really
mean anything. I was just one of, like he said, one of three or four
people they were looking at in the store at that time.
Q. Were you aware that Mr. Taggert told Wayne that someone was selling
stuff out the back door at Natchez [Electric]?
A. Yes, sir.
...
Q. Are you aware that Mr. Taggert told Wayne [Johnson] that somebody
was selling stuff out the back door, charging it to his account, and that
was what was causing the problem with his account?
A. Yeah, Wayne [Johnson] told me that.
Q. And did Mr. Taggert acknowledge that to you last night?
A. Yeah, uh-huh.
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Mr. Fortenberry denied that he stole from the company. Mr. Taggert explicitly denied this
version of events, although he did admit to firing Mr. Fortenberry because of the money
owed back to Mr. Johnson:
Q. And wasn’t it about that same time that Mr. Fortenberry was dismissed
from service with Natchez Electric?
A. The day this credit [to Mr. Johnson for $19,025] was written, he was.
Q. He was fired; is that correct?
A. Correct, due to the credit.
III. Accuracy of the Invoices.
¶12. Natchez Electric admitted at trial that some of the allegedly unpaid invoices for which
the company sued Mr. Johnson were inaccurate. After it was determined that Mr. Johnson
was owed a $19,000 credit due to overbilling, the credit was applied to his account.
However, the credit was not necessarily applied to the faulty invoice itself.
¶13. For example, Mr. Taggert testified that Mr. Johnson bought a number of bank plates;
he should have been charged 25 cents, but was instead charged $2.50. He was ultimately
overcharged $247.50 for the items. When the discrepancy was discovered, and credit issued,
it was not applied to that faulty invoice. Instead, it was applied at Mr. Johnson’s request to
some of his older debt with Natchez Electric.
¶14. Accordingly, the invoices upon which Natchez Electric based its suit were often
flawed. Mr. Taggert admitted this on cross-examination:
Q. You give [Mr. Johnson credit] in one hand and take it back in the other.
A. No, sir, he’s already taken the credit.
Q. It's not reflected on the invoices, is it?
A. Not on these individual invoices, no.
Q. It’s not reflected in the amount that you sued for?
A. No, it’s not reflected in that amount.
...
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Q. You sued on these invoices?
A. Yes, sir.
Q. Not on some from ten years ago. You sued on these invoices. These
invoices have errors in them; do they not?
A. Yes, they do.
...
Q. Well, you keep telling us that you reduced what [Mr. Johnson] owed by
$19,000. Show me on these invoices where you reduced the errors that
are in these invoices from what you sued him on. That’s what I'm
asking.
A. I can’t show you on these invoices.
Q. Because it doesn’t exist, does it?
A. Not on these invoices, no.
Q. Okay.
...
Q. One other thing. I think you’ll agree with me that there are some
invoices that are in there that are in error?
A. Yes.
Q. And those invoices are a part of this lawsuit?
A. Yes.
...
Q. And there have been incorrect amounts charged to Mr. Johnson on
certain things?
A. Yes.
IV. The Case at Hand.
¶15. Even after considering this information, the Court of Appeals concluded that
“Johnson’s evidence of non-delivery was insufficient to create a factual dispute for the jury
as to whether the materials actually were delivered to Johnson.” 2006 Miss. App. LEXIS at
*12-13. This confuses the actual burden that was placed on Mr. Johnson, or on any person
who finds themself defending an open account suit.
¶16. Natchez Electric repeatedly admitted at trial that the invoices which formed the basis
of their suit were “in error” and that there were numerous problems with the billing system.
While it was disputed whether there was a thief at Natchez Electric who stole materials and
7
falsified tickets assessing the debt to Mr. Johnson, it is undisputed that Mr. Fortenberry was
fired due to the $19,025 credit issued to Mr. Johnson.
¶17. Our Court of Appeals placed the burden squarely on Mr. Johnson, but it has long been
our law that the burden of proof is initially on the party seeking to establish the debt. Neal
v. Hooper, 153 Miss. 884, 885-86, 122 So. 103 (1929). In the eyes of the jury, Natchez
Electric failed to do this, and indeed admitted that it could not. We cannot substitute our
judgment for that of the jury and say that a reasonable juror could not have found the debt
claimed by Natchez Electric was not proven when the company admitted it was flawed.
¶18. Even if Natchez Electric had established the correctness of the debt, there are multiple
defenses one might assert in an open account suit, primary among them non-delivery and
lack of indebtedness. Mr. Johnson did not say that his defense was payment, or satisfaction,
which would have shifted the burden to him. See Philley v. Toler, 239 Miss. 347, 362, 123
So. 2d 233, 229 (1960) (in an open account case, party has “the burden of proof to show
payment under [a] plea of payment,” because “[t]he burden of proving payment is upon him
who asserts it”); compare Graham v. Pugh, 417 So. 2d 536, 540-41 (Miss. 1982) (“A plea
of the statute of limitations is an affirmative defense and carrying the burden of proof lies
on the party who relies upon that defense”) (citing Philley).
¶19. Instead, Mr. Johnson’s defense was that the invoices were inaccurate. That is, the
invoices were so flawed, overbilling so commonplace, theft and fraud were present in the
company, all of which supported his theory that the debt did not exist. He then put on proof
to support his defense of inaccuracy or lack of debt. That Natchez Electric had already
credited Mr. Johnson $19,025 due to billing errors certainly carried weight with the jury.
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¶20. In today’s digital world, a defense of total inaccuracy may not be commonplace, but
in light of the ample evidence above, and taking it in the light most favorable to Mr. Johnson,
we cannot say that no reasonable juror could arrive at the verdict reached in the trial below.
CONCLUSION
¶21. We are bound by our standard of review to never substitute our judgment for that of
the jury, and we cannot declare a judgment notwithstanding the verdict when reasonable
minds could reach a different conclusion. Because there was substantial evidence supporting
the jury’s finding that Mr. Johnson was not indebted to Natchez Electric, the judgment of the
Court of Appeals is reversed, and the judgment of the Forrest County Circuit Court is
reinstated and affirmed.
¶22. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE
JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT IS REINSTATED
AND AFFIRMED.
WALLER AND COBB, P.JJ., CARLSON, GRAVES, DICKINSON AND
RANDOLPH, JJ., CONCUR. EASLEY, J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY SMITH, C.J.
EASLEY, JUSTICE, DISSENTING:
¶23. I respectfully dissent from the majority’s reversal of the Court of Appeals’ judgment
that the trial court erred in denying Natchez Electric & Supply Co., Inc.’s motion for
J.N.O.V. In my opinion, the Court of Appeals was correct in its determination that Natchez
Electric demonstrated that Wayne Johnson D/B/A Johnson Electric was indebted to Natchez
Electric in the amount of $39,098.83.1 In a majority opinion authored by Judge Chandler the
1
The Court of Appeals arrived at the $39,098.83 amount by adjusting the
$41,794.45 amount outstanding by $2,695.62 for the invoices that lacked an attached
9
unanimous Court of Appeals reasoned as follows:
The question of Natchez Electric's entitlement to a JNOV implicates the
burdens of proof applicable to a suit on an open account. "An open account
is a type of credit extended through an advance agreement by a seller to a
buyer which permits the buyer to make purchases without a note of security
and is based on an evaluation of the buyer's credit." Cox v. Howard, Weil,
Labouisse, Friedrichs, Inc., 619 So. 2d 908, 914 (Miss. 1993). An open
account is an unwritten contract. McArthur v. Acme Mechanical
Contractors, Inc., 336 So. 2d 1306, 1308 (Miss. 1976). In essence, a suit on
an open account is "an action to collect on a debt created by a series of credit
transactions." Allen v. Mac Tools, Inc., 671 So. 2d 636, 644 (Miss. 1996).
The burdens allocated to the plaintiff and defendant in an open account
suit formerly were established by statute. Miss. Code Ann. § 11-7-45; §
13-1-141 (repealed). Section 11-7-45 required the plaintiff to attach to the
complaint a copy of the account showing the date of purchase, the kind of
goods, the quantity, and the price. Motive Parts Warehouse, Inc. v. D&H Auto
Parts Co., Inc., 464 So. 2d 1162, 1165 (Miss. 1985). Pursuant to section
13-1-141, the plaintiff could attach to the complaint an affidavit attesting to the
correctness of the account and stating that it was due from the defendant. Id.
at 1164-65. The affidavit entitled the plaintiff to judgment unless the defendant
filed a counter-affidavit averring that the account was not correct and
particularizing wherein it was not correct. Id. at 1165. By submitting a
counter-affidavit, the defendant admitted the existence of the account but
denied its correctness. Walker v. Cleveland Lumber Co., Inc., 512 So. 2d 695,
696 (Miss. 1987). In the presence of a counter-affidavit, "the affidavit to the
account [entitled] the plaintiff to judgment only for such part of the account as
the defendant by his affidavit [did] not deny to be due." Motive Parts
Warehouse, Inc., 464 So. 2d at 1165 (quoting Miss. Code Ann. 13-1-141
(repealed)).
"The statutes provided a rule of evidence whose purpose was to dispense
with proof of the correctness of the account." Id. at 1165. Prior to their repeal,
the evidentiary effect of these statutes was obviated by the Mississippi Rules
of Civil Procedure and the Mississippi Rules of Evidence. Key Constructors
Inc. v. H&M Gas Co., 537 So. 2d 1318, 1322 (Miss. 1989). Now, pursuant to
Mississippi Rule of Civil Procedure 10(d), a claim or defense founded on an
account must be accompanied by a copy of the account attached to the pleading
delivery ticket or had a blank delivery ticket attached. See Natchez Elec. & Supply Co.
v. Johnson, 2006 Miss. App. LEXIS 118, 18 (Miss. Ct. App. 2006).
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"unless sufficient justification for its omission is stated in the pleading." The
parties' burdens of proof are those applicable to other claims governed by the
Mississippi Rules of Civil Procedure. Id. at 1323.
Natchez Elec., 2006 Miss. App. LEXIS 118 at 9-11.
¶24. This Court has repeatedly set forth the standard of review and requirements necessary
to establish that a J.N.O.V. is appropriate. In Wilson v. GMAC, 883 So. 2d 56, 63-4 (Miss.
2004), we stated:
A motion for JNOV made under the procedural vehicle of M.R.C.P. 50
(b), requires the trial court to test the legal sufficiency of the evidence
supporting the verdict, not the weight of the evidence. Tharp v. Bunge Corp.,
641 So. 2d 20, 23 (Miss. 1994). See M.R.C.P. 50 (b). In order to rule on a
motion for JNOV, the trial court is required to consider the evidence in the light
most favorable to the non-moving party, giving that party the benefit of all
favorable inferences that reasonably may be drawn therefrom. Corley v. Evans,
835 So. 2d 30, 36 (Miss. 2003) (quoting Goodwin v. Derryberry Co., 553 So.
2d 40, 42 (Miss. 1989)).
"If the facts so considered point so overwhelmingly in favor of the
appellant that reasonable men could not have arrived at a contrary verdict, we
are required to reverse and render." Corley, 835 So. 2d at 37. See also Steele
v. Inn of Vicksburg, Inc., 697 So. 2d 373, 376 (Miss. 1997); Bankston v. Pass
Road Tire Ctr., Inc., 611 So. 2d 998, 1003 (Miss. 1992); McMillan v. King,
557 So. 2d 519, 522 (Miss. 1990). Furthermore, when the plaintiff fails to
establish a prima facie case showing the elements of the cause of action, JNOV
is proper. Bankston, 611 So. 2d at 1001.
"On the other hand, if there is substantial evidence in support of the
verdict, that is, evidence of such quality and weight that reasonable and fair
minded jurors in the exercise of impartial judgment might have reached
different conclusions, affirmance is required." Corley, 835 So. 2d at 37. See
also McMillan, 557 So. 2d at 522.
In reviewing a circuit court decision on a motion for JNOV, this Court
does not defer to the circuit court's decision but rather reviews the matter de
novo. Northern Elec. Co. v. Phillips, 660 So. 2d 1278, 1281 (Miss. 1995).
Wilson, 883 So. 2d at 63-64; see also White v. Stewman, 932 So. 2d 27, 32-33 (Miss. 2006).
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¶25. Here, the Court of Appeals correctly held “that Natchez Electric's proof of the
correctness of the debt evidenced by the delivery tickets with signatures, printed names, and
for directly shipped items was such as to have entitled Natchez Electric to a JNOV.” Natchez
Elec., 2006 Miss. App. LEXIS 118 at 13. The court further determined “that, in light of the
evidence of the correctness of the account, Johnson's proof of the account's incorrectness had
to be more specific than his general allegations of billing errors.” Id. In its detailed analysis
of the evidence supporting the grant of a J.N.O.V. in favor of Natchez Electric, the court
stated:
At the trial, it was established that the custom and practice of the
electrical supply industry was for the supplier to obtain the signature of the
person receiving materials. Johnson admitted that a signed delivery ticket
constituted proof of delivery. Johnson wholly failed to submit any evidence,
beyond his own nebulous allegations, that any outstanding invoice contained
a billing error for which he had not already been credited. Thus, Johnson failed
to present sufficient evidence from which the jury could have concluded that
he was not indebted to Natchez Electric in the amount reflected by the signed
delivery tickets and their associated invoices.
Further, Johnson never refuted the testimony of [Stacy] Taggert and
[Chris] Fortenberry that he had instructed his employees to accept material from
Natchez Electric without signing a delivery ticket. In fact, Johnson admitted
to having picked up material from Natchez Electric without signing a delivery
ticket. Taggert and Fortenberry testified that, when Johnson or his employees
picked up material without signing for it, a Natchez Electric employee would
print the name of the person having received the materials. In rebuttal, Johnson
testified that Fortenberry was selling material "out the back door" and billing
it to Johnson's account. But, Johnson did not point to any specific billing error
caused by theft by Fortenberry. Beyond his testimony that he did not receive
all of the materials billed, Johnson presented no evidence that he did not get a
specific item. While Johnson's testimony could have cast some doubt upon the
correctness of the account, his uncorroborated allegations of theft by Natchez
Electric employees, with nothing more specific, was insufficient to enable a
reasonable juror to reject Natchez Electric's proof that Johnson had received the
materials listed on the delivery tickets bearing printed names.
12
Natchez Electric was also entitled to a JNOV concerning certain delivery
tickets showing that the listed items had shipped directly from the manufacturer
to Johnson. Taggert testified that Natchez Electric's delivery tickets for direct
shipments would not bear the recipient's signature because the signature would
appear on the shipper's delivery receipt. Johnson admitted that a delivery ticket
for a direct shipment would not bear a signature. There was no evidence from
which a reasonable jury could have found that Johnson was not indebted for
invoices associated with delivery tickets for directly shipped materials.
We address the matter of the invoices with associated "blank" delivery
tickets bearing no signature or printed name. As previously stated, it was
established that the custom and practice of the electrical supply industry was for
the supplier to obtain the signature of the recipient of materials. It was further
established that the ordinary course of business between Natchez Electric and
Johnson was for Johnson's employees often to pick up materials without
signing, and then for a Natchez Electric employee to print the recipient's name
on the delivery ticket as proof of delivery. Based on this evidence of the
industry custom and the parties' own practice, the delivery tickets with no
signed or printed name were not sufficient proof that material had been
delivered to Johnson to entitle Natchez Electric to a JNOV. Therefore, we
affirm the jury's finding that Johnson was not indebted to Natchez Electric
concerning any invoice associated with a blank delivery ticket.
We last address the matter of the invoices for materials used on
Johnson's Red Lobster job. At any given time, Johnson was working on several
electrical jobs. Taggert and Fortenberry testified that Natchez Electric
employees noted on each invoice the job for which the materials were intended
based upon instruction from Johnson's employees. Johnson testified that he
bought all of his material for the Red Lobster job from Robinson Electric, not
from Natchez Electric. Johnson surmised that Natchez Electric had billed him
for materials he had bought elsewhere. Johnson admitted that he never
compared his materials invoices from Natchez Electric and Robinson with his
materials records for the Red Lobster job. We find there was insufficient
evidence to distinguish the Red Lobster invoices from the other invoices
admitted at the trial. Viewing the evidence in the light most favorable to
Johnson, Johnson's testimony was too speculative to enable a reasonable juror
to conclude that Johnson did not receive the invoiced Red Lobster materials in
the face of a delivery ticket bearing a signature or printed name, or for directly
shipped items.
In conclusion, we find that there was insufficient evidence to support the
jury's finding that Johnson was not indebted to Natchez Electric. We have
reviewed the evidence adduced by both parties at the trial and find that Natchez
13
Electric was entitled to a JNOV concerning all of the invoices associated with
signed delivery tickets, delivery tickets with printed names, and delivery tickets
for directly shipped items. Concerning these invoices, the evidence pointed so
overwhelmingly in favor of Natchez Electric that reasonable jurors could not
have arrived at a finding for Johnson. Blake [v. Clein], 903 So. 2d [710] at
731. We reverse and render a verdict for Natchez Electric in the amount of $
39,098.83, the amount reflected by the above listed invoices. We affirm the
jury's finding of no liability concerning the invoices accompanied by "blank"
delivery tickets.
Natchez Elec., 2006 Miss. App. LEXIS 118 at 13-18.
¶26. For all the foregoing reasons, I conclude that the trial court should have granted
Natchez Electric’s motion for J.N.O.V. Accordingly, I would affirm the judgment of the
Court of Appeals affirming in part and reversing and rendering in part the trial court’s
judgment.
SMITH, C.J., JOINS THIS OPINION.
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Natchez Electric and Supply Co., Inc. v. Wayne Johnson
Combined Opinion