Petition for Writ of Certiorari — Hankins v. Melton

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Supreme Court, U.S.

ae Ee A Be

APR 17 1996

No.

In The

Supreme Court of the United States

October Term, 1995

James HANKINS, SR., Marian HANKINS, and

JIM HANKINS AIR SERVICE, INC.,

Petitioners,

VS.

Frank E. MELTON,

Respondent.

On Petition For Writ Of Certiorari

To The Court Of Appeals Of Mississippi

PETITION FOR WRIT OF CERTIORARI

T. Jackson Lyons Tuomas J. Lowe, Jr.

Standard Life Building P.O. Box 2050

206 West Pearl Street Jackson, Mississippi 39225

Jackson, Mississippi 39201 601/354-1027

Tel. 601/352-0330

Fax 601/969-1402

E-mail legalres@teclink.net

Mississippi Bar #8988

Counsel of Record for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

oes ag

QUESTIONS PRESENTED

Sound recordings made by the official court reporter

and withheld from the Petitioners are the subject matter

of this Petition. Petitioners (collectively, “the Hankins”)

were sued by the Respondent for alleged breach of war-

ranty in the sale of an airplane. They appealed an adverse

jury verdict. When the complete Record was submitted to

them, the Hankins discovered, among a large number of

errors, three serious problems with the transcript: 1) an

apparent gap in a witness’ testimony; 2) material omis-

sions from the testimony of two witnesses; and 3) highly

prejudicial “testimony” the Hankins believe was never

given at trial. The Hankins’ appellate attorney —- who had

not represented them at trial — believes he has both the

right and obligation as advocate and as an officer of the

court to listen to the sound recordings upon which the

appellate record was based. This case concerns the denial

of the right of access to those sound recordings which are

public records.

1. Access to a fair and impartial hearing before

an appellate court is a fundamental right

necessarily bottomed on a record above

reproach. What level of scrutiny should be

given the state action denying access to

sound recordings upon which a meaningful

hearing before an appellate court is based?

2. Given the appropriate standard of review,

was the state action denying access to public

records an unconstitutional abridgment of

the Hankins’ fundamental right of access to

Mississippi's appellate courts?

PARTIES

The caption of this case sets out all parties. The

corporate Petitioner, Jim Hankins Air Service, Inc., has no

corporate parents or subsidiaries.

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TABLE OF CONTENTS

Page

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CONSTITUTIONAL PROVISIONS AND STATUTES... 2

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REASONS FOR GRANTING WRIT............... . 16

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Il. THE STANDARD OF REVIEW OF STATE

ACTION IMPLICATING THE FUNDAMEN-

TAL RIGHT OF ACCESS TO MISSISSIPPI’S

COURTS SHOULD BE A HEIGHTENED

STANDARD WHERE THAT ACTION MAY BE

JUSTIFIED ONLY IF IT IS NARROWLY TAI-

LORED TO ACHIEVE COMPELLING STATE

GR eS = ee 17

Ill. PROHIBITING THE HANKINS FROM LIS-

TENING TO SOUND RECORD INGS OF THE

TRIAL TO ENSURE THEIR RIGHT TO A FAIR

AND IMPARTIAL APPELLATE HEARING

ENCOMPASSES NO COMPELLING STATE

INTEREST SUFFICIENT TO JUSTIFY THAT

PROCEDURAL BURDEN ON THEIR ACCESS

RUE 6 go TS oon os as win he bes 21

i a5 ncn ab nels e on ees wands Se amen ae

TABLE OF AUTHORITIES

Page

CASEs:

Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28

Le Be CROP ERS os b50s. burn ens canes oeaee 18, 20, 22

Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52

Lae Pe Ret ca ones case ae teendin erties 17

Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119

See ae CPD each oko oka teceeek han vae sexes 19

Connor v. Bogrett, 596 P.2d 683 (Wyo. 1979).......... 15

Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9

SR Gy. Per Peter ree rarer ree 18

Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed.

WESG TUDE) ois so 3 cctv es O00 hs dees os Oooh TGA es 18

Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100

ee oe Fee re eer errr rarer 48, 22, 29

Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11

L Ba Se Bae TA. vein ook 628 eceee ees bean & 23, 24

Logan v. Zimmerman Brush Co., 455 U.S. 422, 102

S.Ct. 1148, 71 L.Ed.2d 265 (1982)....... 17, 18, 20, 22

Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47

Le Be Ces os vc eek oat See eee eane 22

Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d

dae i aN eee ee hee me sy er at) iene Ree 18

United States v. Selva, 559 F.2d 1303 (5th Cir. 1977) .... 23

STATUTES:

panes. Ce At BO irs ois ores ecleasees ees 26

Pr ee eee, Pee 26

CORA sea

Miss.

TABLE OF AUTHORITIES - Continued

Code

OTHER:

14 C.E.R. §

28 U.S.C. § 1257(a)

Mississippi

Ann. § 11-51-3

Ann. § 25-59-19

. § 25-61-1

. § 25-61-3

. § 25-61-11

. § 75-2-725

. § 9-4-3(1)

. § 25-61-9

Ann

Supreme Court, Rule 10

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CASE REPORTS

Appendix A contains the order of the Supreme Court

of Mississippi denying the writ of certiorari to the Court

of Appeals of Mississippi, Hankins, et al. v. Melton, No.

92-CT-00710 COA (Miss. January 18, 1996) (Lee, C.J. dis-

senting from denial of petition for writ of certiorari). The

opinion of the Mississippi Court of Appeals, by Missis-

sippi Supreme Court rule, was not officially reported.

That Court’s decision is reproduced in the Appendix and

is styled, Hankins et al. v. Melton, No. 92-CA-00710 COA

(Miss.App. September 19, 1995). Also included in the

Appendix is the order of the Supreme Court of Missis-

sippi denying access to the trial’s sound recordings

—_——-—-__- —-—- @—

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C.

§ 1257(a). The Court of Appeals of Mississippi affirmed

the trial court judgment in a decision issued September

19, 1995. The Hankins petitioned the Supreme Court of

Mississippi to grant a writ of certiorari. The order deny-

ing that petition was entered on January 18, 1996. Also,

one of the orders of which review is sought was that

rendered by the Supreme Court of Mississippi on Decem-

ber 9, 1993, denying access to verbatim recordings of the

trial.

The Petition before this Court is styled as a Petition

for Writ of Certiorari to the Court of Appeals of Missis-

sippi rather than to the Supreme Court of Mississippi.

Under Mississippi law, all appeals from trial courts are to

the Supreme Court. Miss. Code Ann. §§ 9-4-3(1) and

11-51-3 (Supp. 1995). Mississippi’s Court of Appeals is a

“diversionary” appellate court having no independent

jurisdiction and hearing only those cases assigned by the

Supreme Court of Mississippi. See Miss. Code Ann.

§ 9-4-3(1) (Supp. 1995).

CONSTITUTIONAL PROVISIONS AND STATUTES

Due to length, the pertinent text of these laws are set

out in the Appendix and only cited here:

1. The Fourteenth Amendment to the Constitution

of the United States of America.

2. Article 3, § 24 to the Constitution of the State of

Mississippi.

3. Miss. Code Ann. § 11-51-3 (Supp. 1995), giving

parties a right to appeal from final judgments to

the Mississippi Supreme Court.

4. Mississippi Public Records Act of 1983, Miss.

Code Ann. § 25-61-1 (1991), et seq.

STATEMENT OF THE CASE

The Hankins come before this Court because the

orders of a Mississippi trial court and the Supreme Court

of Mississippi denied them access to official sound

recordings of the trial. The facts relating to the constitu-

tional issue of access to the appellate court will be stated

first. So that the Court will understand the context of the

underlying dispute, the facts relating to the state law

warranty issue will be stated second.

ee ee

;

The Hankins appealed an adverse verdict. Because

appellate counsel was not trial counsel, the Hankins each

personally reviewed the transcript and made copious

notes of the transcript’s errors. Pursuant to Rule 10 of the

Mississippi Supreme Court, the Hankins’ appellate coun-

sel moved the trial court to allow the Hankins access to

the sound recordings so that a correct transcript could be

ascertained.

As with other documents relating to the Hankins’

efforts to verify the accuracy of the transcript, the Rule 10

motion to the trial court is not included in the Record.

However, these documents are contained in a yellow

folder maintained by the Clerk of the Supreme Court of

Mississippi apart from the volumes containing the plead-

ings and transcript. In lieu of Record cites, these docu-

ments will be referred to by their style and dates. For the

Court’s convenience, the Hankins’ second Motion to Sup-

plement, which includes the list of errors and trial court

order, is reproduced in the Appendix. The Clerk’s yellow

folder is labelled “92-CA-710.”

The substance of the Hankins’ complaints about the

transcript are stated in the “Ex Parte Motion for Time to

Correct Transcript,” before the trial court. The Hankins

asked for access to the original sound recordings of the

trial proceedings to check against the errors in the tran-

script. The trial court, by order executed April 13, 1993,

ordered the Hankins to submit a list of errors to the court

by April 30, 1993. The court denied the Hankins access to

the sound recordings.

On May 3, 1993, the Hankins’ “Statement of Errors in

Transcript of Trial” was submitted to the court, appellee,

and court reporter. Subsequently the court reporter noted

23 corrections to the transcript and it was then forwarded

to the Supreme Court of Mississippi. The court reporter’s

corrections appear at the last unnumbered page of the

hearing transcript.

The Court may be assured that the Hankins’ counsel

made every effort to make these documents part of the

Record in this case. After the trial court denied the Han-

kins’ new counsel access to the tapes, on “Motion to

Supplement Record,” filed October 20, 1993, before the

Supreme Court of Mississippi, the Hankins again sought

the sound recordings. On December 9, 1993, the Supreme

Court of Mississippi forbade the Hankins access to the

sound recordings.

With a second “Motion to Supplement Record,” the

Hankins moved, on January 14, 1994, to make their

motion papers part of the pleadings volume so that the

documents could be paginated and become part of the

official record. The motion informed the Supreme Court

of Mississippi that, along with the hearing on the state

law merits, the Hankins intended to argue that the trial

court’s denial of access to the sound recordings was a

denial of due process under the constitutions of the

United States and Mississippi.

Without substantive comment, a panel of the

Supreme Court of Mississippi denied that motion on

April 7, 1994.

To be sure, most of the mistakes in the transcript

noted by the Hankins are, taken individually, trivial. For

example, at T. 106, line 26 should read “new” instead of

“knew”; at T. 335, line 29, “sold it” should read “soloed”;

—

——__

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or at T. 223, line 20 should read “Pratt and Whitney” not

“Bratton Whitney .” Unlike jurists, court reporters are not

compelled to be omnicompetent citizens.

However, the Hankins’ list of errors, appended to

both motions to supplement, runs more than six double-

spaced pages. Aside from the Hankins’ belief that so

many errors impugn the integrity of the transcript, they

believe that there are at least three highly prejudicial

errors, even taken singly: two omissions from testimony

and one insertion of language not believed by the Han-

kins to have been stated at trial. There may be other

errors. The court reporter required more than five months

to prepare the transcript of a two-day trial.

First, there is an apparent gap in the transcript at 143.

The Respondent, Melton, was being cross-examined by

the attorney representing the Hankins’ eldest son. The

context of this cross-examination was to establish that

James, Jr., while owning the plane, had had no contact

with Melton before the sale of the plane and made no

representations to Melton about the airplane’s condition.

The attorney’s next question is whether Melton looked to

Jim, Sr., and Marian for advice and expertise. Melton

responds, “That is correct.” The transcript reflects the

court interjecting for an afternoon recess. (T. 143)!

1 Throughout the Petition, “T.” will be used to indicate

citations to the transcript of the trial. “C.P.” will be used to

indicate those materials contained in the Clerk’s Papers, the

pleadings volumes. This distinction has proved useful in

Mississippi state court to alert the court to the nature of the

material cited.

As a courtesy, lawyers in Mississippi customarily

announce to the court that the attorney has no further

questions for a witness. Further, given the context of the

questioning, it seems unusual that no follow-up questions

were asked about Melton’s reliance on the Hankins’ state-

ments. The Hankins, in their Statement of Errors, state

the belief that the transcript is “missing something. -

Buffy Beach [Mr. Stephen L. Beach, III, Jim, Jr.’s attorney]

never finished (Recess) What happened precisely? Re-

Direct examination by Holland [Mr. James D. Holland,

the Hankins’ trial attorney]? (Something is missing?)”

Second, Melton’s two experts testified about the

value and mechanical condition of the aircraft, respec-

tively. According to the Hankins’ Statement of Errors,

these experts both mentioned the plane’s sunscreens -

“windows” to the hoi polloi. This testimony related to the

misunderstanding, discussed during the trial by Melton

and Jim Hankins, Sr., over who would pay for the sun-

screens’ replacement at the time of the plane’s purchase.

(T. 21, 38, 361)

The third, and most serious, error believed by the

Hankins to be contained in the transcript are some state-

ments from Melton’s direct examination concerning a

“bid process” to sell the grounded plane. The Hankins

believe these statements were inserted into the transcript

and do not reflect the actual testimony. The remark about

auctioning the plane was during direct examination to

establish that Melton mitigated his damages and to state

what his damages were:

Q. So, Mr. Melton, when you sold the plane,

you sold it for salvage; is that correct?

I sold it for $63,700.

Who did you sell this plane to? Do you

remember?

I don’t specifically remember. I remember

that I contacted the attorneys to make sure

that it was someone who was in the plane

maintenance business who understood the

problems with the plane and what they

would actually be buying . . . The first step

was to notify-Trustmark Bank that their

asset was no longer airworthy .. . I had a

responsible (sic) to let them know that it

was not working and that I would have the

note satisfied, and to get their permission to

sell it.

* + *

Mr. Melton, why did you sell it to someone

in the business of airplanes?

Because I needed to have the personal

assurances that it would be someone who

clearly understood that the plane was

unairworthy, that the engines were in trou-

ble, that the engines needed to be repaired,

to make sure that it didn’t go to an individ-

ual like myself who is not a pilot, not a

mechanic, who just wouldn’t know what

the problems were. And I was very candid

with the attorneys about insuring that the

individual that bought the plane or the

company knew the mechanical problems,

and I was satisfied that that had been done.

It was done on a bid basis.

Mr. Melton, you’ve raised an issue just then

about ownership?

(T. 59-60) (emphasis supplied)

On cross-examination the Hankins’ attorney asked

Melton whether he remembered Jim Hankins, Jr., offering

him more than $63,700:

I vaguely remember that from two perspec-

tives, Mr. Holland. First of all, I think that

we had already set up a process bid on the

plane and I had made an agreement. It is a

fact that somebody did offer me more

money for the plane after I made an agree-

ment to sell it. I did not take the offer

because of the ethics of the agreement that |

made with the person that was gonna (sic)

buy it. I don’t know how much more of the

63 it was, but I made a deal to sell it.

Secondly, I was not comfortable in putting

this airplane back in the hands of the Han-

kinses, because I had no assurances that

this plane wasn’t going to be sold to

another individual like me. I had none.

(T. 136-37) (emphasis supplied)

The Hankins are avid about testimony regarding any

“bid process” having been inserted because the circum-

stances surrounding the sale of the plane had been so

contentious. Those earlier events would have made

Melton’s trial testimony on the subject memorable, the

Hankins believe. Earlier in the proceedings Melton had

asked the trial court for its approval to sell the plane to

Turbine Power, Inc., on March 21, 1988. The relevant part

of that motion reads as follows:

Plaintiff has . . . received an offer for the

purchase of the subject aircraft, and is

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desirous of accepting said offer. A copy of

which is attached hereto as Exhibt (sic) “A.”

4. As of the date of this filing, an offer to

purchase said aircraft has been made to

each defendant, at terms no less advan-

tageous than those contained in Exhibit

“A.” To date said offer has not been

accepted.

(C.P. 139-40)

Melton’s averment in the pleadings that the plane

had been offered to the Hankins is at variance with his

later testimony. Further, there is no “bid process” men-

tioned in Melton’s motion other than in reference to

offering it to the Hankins. The Hankins’ responsive

pleading, filed with the trial court on March 23, 1988,

denied any “offer” to sell them the plane had been made:

1. The notice of said motion was not filed until

March 21, 1988, and set for hearing on

March 24, 1988. These Defendants have not

been given the opportunity to fully prepare

for said motion hearing nor have they been

given appropriate notice under the Local

Rules.

2. The Defendants deny the separate para-

graph allegations of the motion of Frank

Melton relating to the sale of a certain King

Air aircraft.

3. The terms of said sale were not made avail-

able to the Defendants until March 21, 1988,

by hand-delivery late in the afternoon. The

Defendants have not had an opportunity to

review said offer, to the extent said (sic)

exists.

* + *

5. The Defendants understand and believe that

the Plaintiff is selling said aircraft for sal-

vage at a price far below its value.

(C.P. 145)

On March 24, 1988, the trial court entered an order

permitting the sale and reciting as “fact” that Melton had

made offers to sell to each defendant which had not been

accepted. (C.P. 148) This order, while not containing the

customary notation of the attorney preparing it, is in the

typeface used by Melton’s attorneys. The Hankins imme-

diately filed an objection and motion for rehearing:

1. In a telephone conversation with Mel

Priester, one of the attorneys for the Plain-

tiff, on March 22, 1988, the undersigned was

informed that the hearing would not take

place on Thursday, March 24, 1988. The i

notice of hearing did not provide the requi-

site time period to prepare for the motion

and the undersigned had previously sched-

uled to be out of the state on that date.

2. The Defendants did file objections to not

only the hearing, but to the motion of the

Plaintiff in relation to the sale of the aircraft. rt

3. The Defendants had the honest belief that

the hearing would not occur on March 24,

1988, but would occur after approximately

10:00 a.m. on March 25, 1988, at the conve-

nience of the Court and the Plaintiff.

(C.P. 150)

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SOR ERE Pr me

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TERA Re 8:

——

PERE emer

After the conclusion of the briefing, the Supreme

Court of Mississippi, on order filed January 20, 1995,

assigned the Hankins’ appeal to the Court of Appeals of

Mississippi. This order also is contained in the Clerk’s

yellow folder. In dealing with the constitutional issue

raised by the Hankins, the Court of Appeals said:

Hankins contends that the trial court erred

when it refused to allow him to duplicate the

trial tapes and that such refusal is an uncon-

stitutional denial of due process. _

+ + *

The record indicates that after Hankins filed

the “Statement of Errors in Trial Transcript”

with the trial court, the court reporter reviewed

the trial transcript and tapes and made the nec-

essary changes. Upon reviewing page 143, we

found that all this page reveals is a recess fol-

lowing the cross-examination of Melton, fol-

lowed immediately by his re-direct examination.

Appellants have not suggested or demonstrated

any errors or omissions which remain in the

transcript, nor any damage done to their appeal

as a result of any errors or omissions in the trial

transcripts.

“The standard of review of a post-trial

motion is abuse of discretion.” Johnson v. State,

642 So.2d 924, 928 (Miss. 1994) (other citations

omitted). As such, Hankins was required to

show an abuse of discretion, which he failed to

prove. This assignment of error is without merit.

Slip op. at 12.

The Hankins timely petitioned for rehearing before

the Court of Appeals. They stated both state law grounds

for reversal as well as reiterating that state action was

being challenged requiring a level of scrutiny fundamen-

tally different from an “abuse of discretion” review. The

petition was denied by order of that court filed on

November 28, 1995. The Hankins then petitioned the

Supreme Court of Mississippi for writ of certiorari to the

Court of Appeals. By order filed January 18, 1996, that

petition was denied.

Turning now to the facts underlying the state law

issues, Melton had been leasing aircraft from Hankins Air

Service and believed that buying an airplane might

enhance his personal and professional lives. (T. 8, 9, 19)

Melton and his company’s financial analyst, Duane LebI,

met with the Hankins on several occasions to investigate

whether Melton or his business, WLBT TV-3, Inc., could

afford the airplane. (T. 156)

Leb] and Melton were concerned about whether the

plane would have any expensive repairs early on and

asked Hankins if he expected any “big ticket” items in the

near future. Jim Hankins told them that he, Hankins, did

not anticipate any expensive repairs in the near future.

Melton admitted that Hankins had told him that the next

significant repair he could expect would be on the “hot

sections.” (T. 97, C.P. 218) He also admitted that Hankins

had told him before his purchase that the cost of repair-

ing the hot sections would vary depending on the exact

nature of the repairs but that the cost would be in the

neighborhood of $30,000.00. (T. 104) “Hot section” is an

aviation term of art referring to the combustion chambers

in gas turbine engines.

There is no dispute in this case that both Frank

Melton and Duane Leb! were told that the airplane’s

engines had about 5400 hours on them at the time of sale

and that the manufacturer recommended overhaul at

3500 hours. (T. 93-94, 174) Lebl admitted that none of the

Hankins ever told him that the engines had been over-

hauled at 3500 hours. (T. 173)

Melton has contended that he was never told that no

overhaul had been done. This is factually impossible:

Leb] admitted that he “was told that the plane had too

many hours between inspections or between overhauls to

use it in an (sic) air taxi... .” (T. 160; Exhibit 13) The first

page of Exhibit 13, Lebl’s contemporaneous notes,

unequivocally states “Cannot use in air taxi — regulations

regarding total hours.” On the Exhibit, the word “total”

has been struck through. The next line says “can go

12,000 hrs” with the next line reading “recommend 3,500

hrs between overhauls.” Adjacent to this remark, in

smaller print, is “for air taxi.”

Melton and Lebl’s testimony and Lebl’s notes show

that he and Melton knew the airplane could not be used

as an air taxi because the engines had not been over-

hauled. It is logically impossible that Lebl and Melton

could then conclude that the aircraft also had received an

overhaul - which would have permitted its use as an air

taxi. (Trial Exhibit 13)

To reflect the plane’s low value at the time of sale and

its defectiveness at the time of sale, Melton called an

expert airframe and power plant mechanic. The expert,

George Watson, testified that federal regulations, 14

C.F.R. § 91.169, require aircraft of the kind at issue be

inspected under a program selected by the aircraft owner

from five available options. The parties’ experts agreed

that any discrepancies found during inspection must be

repaired. (T. 225, 328) The parties’ experts also agreed

that not overhauling the engine at 3500 hours violated no

federal regulation. (T. 245, 329)

Watson testified that he had certified craft as airwor-

thy even when the craft was over the manufacturer’s

recommended time between overhauls (“TBO”). (T.

240-41) Watson claimed that he would approve such craft

only where the manufacturer had provided information

through a service bulletin extending the TBO. Hankins’

attorney then handed Watson a copy of a bulletin from

Pratt & Whitney, the manufacturer of the turbines at issue

in this case, stating that TBO could vary from 3500 hours

to 8600. (T. 242) Consequently, there was no evidence in

the record to indicate that the plane was not airworthy at

the time of sale.

Seven months after Melton bought the airplane, his

pilot, an FAA certified air frame and power plant

mechanic and the Hankins’ son, Michael Hankins,

grounded the plane pending repair of the “hot sections”

of the gas turbines. (T. 49) The near future came too soon

for Melton and he sued the Hankins and their corpora-

tion on October 8, 1986 for, inter alia, breach of warranty.

Follcwing a trial on these facts, the jury, by general

verdict, found Jim Hankins, Sr., Marian Hankins, and

Hankins Air Service, Inc., liable to Melton in the amount

of $75,000.00. (C.P. 327) The Hankins remain confident

I ll,

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that the verdict and the Court of Appeals’ affirmance are

“merely wrong” as a matter of state future warranty law.?

2 If Hankins’ statement was any kind of warranty and not

an opinion, it would have to be a warranty of future

performance. In Connor v. Bogrett, 596 P.2d 683 (Wyo. 1979), the

Wyoming Supreme Court held that where neither buyer nor

seller had the power to actually control the future events upon

which the buyer based his claim for an express warranty, the

possibility that the prediction would be incorrect is assigned to

the buyer. Obviously, Hankins had no control over the number

of hours Melton flew.

The Wyoming Court pointed out that as a matter of policy,

warranties of future performance, as distinguished from

warranties of present fact, must be explicit. The UCC’s statute of

limitations relating to warranties provides that “[a] breach of

warranty occurs when tender of delivery is made, except that

where a warranty explicitly extends to future performance of

the goods and the discovery of the breach must await the time of

such performance. ...” Miss. Code Ann. § 75-2-725, as

amended.

In this case, Jim Hankins stated that he did not expect any

expensive repairs in the near future. Such a statement cannot, as

a matter of law, be considered an express statement of warranty

for a particular time extending in the future. For example, in

Crouch v. General Elec. Co., 699 F.Supp. 585 (S.D.Miss. 1988), Mr.

Crouch had been injured in a helicopter crash while serving in

the Army. GE delivered the helicopter engine on February 27,

1981; the crash occurred in August of 1981. Crouch sued on

August 21, 1987. The district court recited the usual rule: a claim

sounding in warranty accrues upon tender of delivery. Even

under Mississippi's former forum-shopping bait, the six year

statute of iimitations, the claim appeared barred. Id. at 593.

The Crouches contended that the warranty was for future

performance therefore tolling the statute under the exception

quoted supra, Miss. Code Ann. § 75-2-725(2). GE’s warranty

REASONS FOR GRANTING WRIT

I. INTRODUCTION

The compelling reason for hearing this case is that

the Court of Appeals of Mississippi ventured far from

accepted practice by reviewing a constitutional challenge

to state action as an appeal of a post-trial motion. The

court purported to apply an “abuse of discretion” stan-

dard. The Court of Appeals of Mississippi also decided

an important question of federal law which has not been,

but should be, decided by this Court. That question is

whether the refusal of the state, by court order, to permit

the Hankins - and their newly-hired appellate counsel

stated that “at the time (of) delivery (the engines will) be free

from defects in material and workmanship. ... The warranty on

each of the .. . engines shall cease three (3) years from the date

the Government accepts the first engine... .” Id. at 593. The

district court concluded that a warranty of materials and

workmanship guaranteeing repair or replacement for a

specified time was not an express warranty of actual engine

performance.

This was so because the “” ‘overwhelming majority’ of

courts have interpreted future performance exceptions such as

those contained in section 75-2-725 very strictly. (citations

omitted) To come within the future performance exception, a

warranty must explicitly promise or guarantee future

performance of the goods; it must be clear, unambiguous and

unequivocal.” Id. at 594; see cases cited at 594-95. See also, e.g.,

Western Recreational Vehicles, Inc. v. Swift Adhesives, Inc., 23 F.3d

1547 (9th Cir. 1994); Mountain Fuel Supply Co. v. Central

Engineering & Equip. Co., 611 P.2d 863 (Wyo. 1980); Annotation,

What constitutes warranty explicitly extending to “future

performance” for purposes of UCC § 2-725(2), 93 A.L.R.3d 690

(1979).

—

| ~ access to public records is a denial of due process under

the circumstances of this case.

The constitutionally-protected access to Mississippi's

appellate courts is bottomed on a complete and accurate

record. The Hankins believe that they were denied a fair

and impartial hearing before the appellate court because

of gross errors in the transcript. Access by new counsel to

the sound recordings would have shown whether the

transcript, as the Hankins believe, omitted some testi-

mony and inserted statements not made.

The question takes on additional significance where

modern technology provides the potential availability of

many different forms of electronic recording. Apart from

raising an important issue of federal law with potentially

widespread effect on civil and criminal appeals, this case

will likely have effect into the technological future.

Il. THE STANDARD Ce REVIEW OF STATE ACTION

IMPLICATING THE FUNDAMENTAL RIGHT OF

ACCESS TO MISSISSIPPI’S COURTS SHOULD BE

A HEIGHTENED STANDARD WHERE THAT

ACTION MAY BE JUSTIFIED ONLY IF IT IS NAR-

ROWLY TAILORED TO ACHIEVE COMPELLING

STATE INTERESTS.

Access to courts is a fundamental right guaranteed

by the Fourteenth Amendment to the Constitution of the

United States. Logan v. Zimmerman Brush Co., 455 U.S. 422,

102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) (access to state’s

adjudicatory mechanisms species of property); Bounds v.

Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977)

(protection of prisoner’s right to court access requires

provision of sufficient legal materials); Boddie v. Connecti-

cut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971)

(actions which are the equivalent of denying use of adju-

dicatory procedures unconstitutional); Ex parte Hull, 312

U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941) (parole board’s

“approval” of habeas petitions unconstitutional infringe-

ment of right of access to court). Where the state provides

for appellate review, that is also a protected fundamental

right. Bounds, 430 U.S. 817; Douglas v. California, 372 U.S.

353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Griffin v. Illinois,

351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956).

The Court’s civil cases, such as Logan and Boddie,

illustrate that there is no analytical difference between

the civil and criminal cases. As a property and liberty

interest, access to courts is a fundamental right. Tradi-

tionally, the Court has viewed state action restricting or

regulating fundamental rights with careful scrutiny, if not

suspicion. For example, in Roe v. Wade, 410 U.S. 113, 155,

93 S.Ct. 705, 728, 35 L.Ed.2d 147 (1973), the Court said

that “[w]jhere certain ‘fundamental rights’ are involved,

the Court has held that regulation limiting these rights

may be justified only by a ‘compelling state interest,’

(citations omitted) and that legislative enactments must

be narrowly drawn to express only the legitimate state

interests at stake. (citations omitted)”

3 The Court of Appeals of Mississippi reviewed the trial

court’s order prohibiting access to the sound recordings as it

would a post-trial motion. It is beyond peradventure that a

court’s order is a action of the state within the Fourteenth

Amendment. Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed.

1161 (1948).

Thus, the analysis has depended on identifying what

state interest underlies its action and whether that inter-

est was sufficiently compelling to support regulation of

fundamental rights. More recently, however, the Court

appears to have adopted a “sliding scale” analytically

depending not so much on the nature of the state’s inter-

est, but on the nature and severity of the state’s regula-

tion.

For example, in Burdick v. Takushi, 504 U.S. 428, 112

S.Ct. 2059, 119 L.Ed.2d 245 (1992), the Court reviewed

whether Hawaii's ban on “write-in” voting passed consti-

tutional muster. The Court held that a more flexible stan-

dard than pure “strict scrutiny” applied, at least in

election law cases.

[T]he rigorousness of our inquiry into the pro-

priety of a state election law depends upon the

extent to which a challenged regulation burdens

First and Fourteenth Amendment rights. Thus,

as we have recognized when those rights are

subjected to “severe” restrictions, the regulation

must be “narrowly drawn to advance a state

interest of compelling importance.” (citation

omitted) But when a state election law provision

imposes only “reasonable, nondiscriminatory

restrictions” upon the First and Fourteenth

Amendment rights of voters, “the State’s impor-

tant regulatory interests are generally sufficient

to justify the restrictions. (citations omitted)”

Id., 112 S.Ct. at 2063-64.

Thus, the level of scrutiny is a balancing process,

weighing the severity of the regulation and resulting

infringement of the fundamental right against the state’s

interest in making order from chaos to achieve a civil

republic. As a common law court, the Court and its

officers share the duty of discerning the appropriate rule

to follow under the circumstances of each case.

Interestingly, the cases considering state action affect-

ing access to courts rarely speak of the standard of

review. Where the level of scrutiny is mentioned, the

Court appears to have applied strict scrutiny. “[D]ue

process requires . . . that absent a countervailing state

interest of overriding significance, persons forced to set-

tle their claims of right and duty through the judicial

process must be given a meaningful opportunity to be

heard.” Boddie, 401 U.S. at 377, 91 S.Ct. at 785.

Similarly, in Logan the Court quoted Boddie and said,

“having made access to the courts an entitlement or a

necessity, the State may not deprive someone of that

access unless the balance of state and private interests

favors the government scheme.” Logan, 455 U.S. at 430,

fn. 5, 102 S.Ct. at 1154-55, fn. 5 (Blackmun, J., speaking for

the Court).

In recent years, the Court appears to be signaling that

“strict scrutiny” is analytically appropriate to many cases,

yet is actually only the harsher end of a flexible equation.

Thus, in appropriate circumstances there would be no

distinction between saying that a burden on a fundamen-

tal right may only be justified by a balance of interests

favoring the state’s action and that only a compelling

state interest can justify burdening fundamental rights.

Doubtless, Learned Hand could have written an elegant

algebra expressing this idea.

epee 00 REE Yen ewe

In this case, the burden on access to a fair and impar-

tial hearing before an appellate court was the court-

ordered prohibition on the Hankins’ listening to sound

recordings of the trial. The recordings form the basis of

the transcript upon which access to the appellate court is

founded. State action placing any burden on access to

appellate review must be justified by the balance of inter-

ests favoring the court-ordered restriction on access to

the sound recordings.

Ill. PROHIBITING THE HANKINS FROM LISTEN-

ING TO SOUND RECORDINGS OF THE TRIAL

TO ENSURE THEIR RIGHT TO A FAIR AND

IMPARTIAL APPELLATE HEARING ENCOM-

PASSES NO COMPELLING STATE INTEREST

SUFFICIENT TO JUSTIFY THAT PROCEDURAL

BURDEN ON THEIR ACCESS TO THE COURT.

The question is whether, under the circumstances of

this case, refusing access to tape recordings of the trial

was an unconstitutional burden on access to appellate

review. In the first instance, Mississippi’s Constitution of

1890 provides a right of access to a fair and impartial

hearing in Article 3, § 24. Mississippi also provides for

appellate review as a matter of right, Miss. Code Ann.

4 In briefing before the state courts, the Hankins contended

that the trial court’s action prohibiting access to the sound

recordings of the trial bore no reasonable relation to state

interests. When the Court of Appeals of Mississippi purported

to apply an “abuse of discretion” standard to a constitutional

challenge, the Hankins raised the issue of the standard of

review again before the Supreme Court of Mississippi on

petition for writ of certiorari.

§ 11-51-3 (Supp. 1995). Mississippi’s evident policy in

providing review of trial courts is to maintain its civil

society by assuring all citizens a check on arbitrary gov-

ernment by the judicial branch.

“([D]ue process requires, at a minimum, (that) per-

sons forced to settle their claims of right and duty

through the judicial process must be given a meaningful

opportunity to be heard.” Boddie, 401 U.S. at 377, 91 S.Ct.

at 785. Of course, the type of hearing and its timing must

be appropriate under the circumstances. Logan, 455 U.S.

at 434, 102 S.Ct. at 1157; Mathews v. Eldridge, 424 U.S. 319,

96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

In this case, the peculiar nature of the appellate hear-

ing must be considered. The nature of an appellate

court’s “hearing” is a mature consideration of the record

before it. The Hankins’ factual argument is that the

number of errors noted by the court reporter, and the

number which remain, prima facie impugn the transcript.

A corrupt record cannot provide the constitutionally

required hearing. Forty years ago the Court held that due

process required access to the appellate court be pro-

tected by some constitutionally-sufficient method of

reporting the trial proceedings to the appellate tribunal.

Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891

(1956).

In Griffin, the Court held that access to the appellate

tribunal could not be so burdened as to preclude effective

review. Illinois, though providing appellate review of

right, also required a transcript but declined to waive the

required fees to indigent criminal defendants. Extensive

research, both electronic and traditional, indicates that

the question of whether access to sound recordings of

public trials may amount to a denial of due process is one

of first impression. There are, however, numerous cases

from the Courts of Appeals which consider whether a

transcript containing some omissions is per se a violation

of due process as infringing on the right of access to the

court. See, e.g., Annotation, Court Reporting — Omissions,

12 A.L.R. Fed. 584.

As an illustration of the level of protection of the

records before them that courts have demanded, the Fifth

Circuit’s United States v. Selva, 559 F.2d 1303 (5th Cir.

1977), is typical. Selva contended that his newly-retained

appellate counsel could not examine a transcript of the

entire proceedings because the court reporter’s recording

device failed. The United States Court of Appeals

believed that even though the appellant could offer no

specific error in the unrecorded proceedings, his new

appellate lawyer would be foreclosed from examining the

transcript for possible errors. The Court held that these

circumstances would “render illusory his right to

appeal.” Id. at 1305.

The Courts of Appeals have never required a perfect

record. E.g., Selva, 559 F.2d at 1306, fn. 5. Nor do the

Hankins suggest the Court adopt such a rule. The ques-

tion is what level of protection should be afforded the

record to ensure a fair and impartial appellate review.

This Court, in Hardy v. United States, 375 U.S. 277, 84

S.Ct. 424, 11 L.Ed.2d 331 (1964), eschewed the constitu-

tional issues, and dealt with the question of protecting an

appellant’s access to the federal court where new counsel

is engaged on appeal:

[W]hen, as here, new counsel represents the

indigent on appeal, how can he faithfully dis-

charge the obligation which the court has placed

on him unless he can read the entire transcript?

His duty may possibly not be discharged if he is

allowed less than that. .. . The right to notice

“plain errors or defects” is illusory if no tran-

script is available at least to one whose lawyer

on appeal enters the case after the trial is ended.

Hardy, 375 U.S. at 279-80, 84 S.Ct. at 426-427.

The reasoning of this passage is unchanged by substi-

tuting “when, as here, new counsel represents a party on

appeal, how can he faithfully discharge his obligations to

the court and his clients unless he is able to assure a

reasonably accurate transcript?” The Hankins do not pro-

pose that parties be able to manufacture such circum-

stances by sequentially employing a clutch of lawyers.

Nevertheless, the Hankins’ appellate counsel’s simul-

taneous duties to his clients and the court were rendered

untenable in this case when the courts refused access to

verbatim recordings. This is so because the appellate

hearing relies on those recordings and his client stated,

under oath, that she had no memory of certain words

appearing in a transcript having been said at trial. Motion

to Supplement Record, filed with the Supreme Court of

Mississippi October 20, 1993, Exhibit B, affidavit of Mar-

ian Hankins.

Justice Frankfurter, concurring in Griffin, said that

the state could not deny review

merely by disabling (a defendant) from bringing

to the notice of an appellate tribunal errors of

the trial court which would upset the conviction

were practical opportunity for review not fore-

closed. . . . To sanction such a ruthless conse-

quence, inevitably resulting from a money

hurdle erected by a State, would justify a latter-

day Anatole France to add one more item to his

ironic comments on the “majestic equality” of

the law.

| Griffin, 351 U.S. at 23, 76 S.Ct. at 593 (Frankfurter, J.,

concurring).

The Mississippi courts disabled the Hankins’ new

appellate counsel from bringing notice of errors to the

appellate tribunal by refusing access to verbatim sound

recordings. This is not a case where it is possible for

counsel to show a specific error, except those based on his

| clients’ memories and the extant shoddy transcript.

Because the omitted testimony concerns damages, the

| Hankins can certainly show that, if their memories are

correct, they were prejudiced. If statements were inser-

ted, there has been a fraud on the court.

Given the standard of review, the denial of the trial’s

verbatim sound recordings, under the circumstances of

this case, is an unduly harsh restriction on counsel's

ability to faithfully perform his obligations to the court

and his clients. The enforced unavailability of the record-

ings rendered illusory counsel’s ability to provide the

appellate tribunal notice of errors.

In the balance is whether the refusal of the Missis-

sippi courts to allow access to the recordings reflects an

overriding state interest. The sound recordings at issue

are public records by delaration of the Mississippi Public

Records Act of 1983, Miss. Code Ann. § 25-61-1 et seq.

Section 25-61-3(b) (1991), defines “public records” as

all . . . tapes, recordings or reproductions

thereof, and any other documentary materials,

regardless of physical form or characteristics,

having been used, being in use, or prepared,

possessed or retained for use in the conduct,

transaction or performance of any business,

transaction, work, duty or function of any pub-

lic body, or required to be maintained by any

public body.

“Public body” is defined as “any department

. . agency and any other entity of the state or a political

subdivision thereof . . . and any other entity created by

the Constitution or by law. . ..” Miss. Code Ann.

§ 25-61-3(a) (1991). Mississippi’s judicial department is

undeniably an entity of the state and a constitutional

creature. Mississippi Constitution of 1890, Article 6. The

judiciary is not excluded from the definition section and

recording all evidence in trial proceedings is required by

Miss. Code Ann. § 9-13-25 (1991) and § 9-13-31 (1991).

These recordings are public property pursuant to Miss.

Code Ann. § 25-59-19 (1991).

The statute decrees that the state has no interest in

prohibiting access to the “tapes (and) recordings.” Access

to public records is not, of course, unbounded. Other

sections of the statute recognize circumstances, none of

which apply here, where access to public records may be

a Neca

lawfully restricted or denied. See, e.g., Miss. Code Ann.

§§ 25-61-9 and 25-61-11.

Pursuant to the statute, a court could order reason-

able time, place, and manner restrictions on access to its

documents. In this case, the denial was absolute and

contrary to expressly stated public policy.

IV. CONCLUSION

This Court has historically been astute to guard

access to the appellate process. A society which “guards

its guardians” with checks and balances on judicial pro-

cess should not permit that process to be undermined.

The constitutional vice of the Mississippi courts’ insen-

sitivity to counsel’s ability to demonstrate errors is mani-

fest. The courts of Mississippi burdened the right to

access to appellate hearing with a restriction on access to

verbatim records. Where there is no state interest — com-

pelling or otherwise —- to support such a burden, this

Court should grant certiorari to settle an important ques-

tion of constitutional law.

Respectfully submitted,

T. Jackson Lyons THomas J. Lowe, Jr.

Standard Life Building P.O. Box 2050

206 West Pearl Street Jackson, Mississippi 39225

Jackson, Mississippi 39201 601/354-1027

Tel. 601/352-0330

Fax 601/969-1402

E-mail legalres@teclink.net

Mississippi Bar #8988

Counsel of Record for Petitioners

IN THE SUPREME COURT OF MISSISSIPPI

NO. 92-CT-00710 COA

JAMES A. HANKINS, SR., MARIAN HANKINS,

AND JIM HANKINS AIR SERVICE, INC.

Vv.

FRANK E. MELTON

ORDER

(Filed Jan. 18, 1996)

This matter comes before the Court on the Petition

for Writ of Certiorari filed by James A. Hankins, Sr.,

Marian Hankins and Jim Hankins Air Service, Inc. After

consideration, the Court finds that the Petition for Writ of

Certiorari should be denied.

IT IS THEREFORE ORDERED that the Petition for

Writ of Certiorari be, and hereby is denied.

SO ORDERED, this, the 11th day of January, 1996.

/s/ Lenore L. Prather

LENORE L. PRATHER,

PRESIDING JUSTICE

FOR THE COURT

PRATHER AND SULLIVAN, P.JJ., PITTMAN, BANKS,

MCRAE, ROBERTS, SMITH AND MILLS, JJ., WOULD

DENY.

LEE, C.J., WOULD GRANT.

IN THE COURT OF APPEALS

OF THE STATE OF MISSISSIPPI

NO. 92-CA-00710 COA

JAMES A. HANKINS, SR., MARIAN

HANKINS, AND JIM HANKINS AIR

SERVICE, INC. APPELLANTS

FRANK E. MELTON APPELLEE

THIS OPINION IS NOT DESIGNATED FOR

PUBLICATION AND MAY NOT BE CITED,

PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. ROBERT LEWIS

GIBBS

COURT FROM HINDS COUNTY

WHICH APPEALED: CIRCUIT COURT

ATTORNEY FOR

APPELLANTS: THOMAS J. LOWE, JR.

ATTORNEY FOR APPELLEE: JOSHUA J. WIENER

NATURE OF THE CASE: BREACH OF WAR-

RANTY AND FRAUD

TRIAL COURT DISPOSITION: GENERAL VERDICT

AND DAMAGES FOR

MELTON

BEFORE FRAISER, C.J., KING, AND McMILLIN, JJ.

KING, J., FOR THE COURT:

Frank E. Melton brought suit in the Circuit Court of

Hinds County against James Hankins, Sr., Marian Han-

kins, Jim Hankins, Jr., and Jim Hankins Air Service, Inc.,

alleging fraud and breach of express and implied warran-

ties covering a used Beachcraft King Air B-90 airplane.

From a jury award favoring Melton, Marian Hankins,

James Hankins, Sr., and Jim Hankins Air Service per-

fected this appeal.

In January or early February of 1985, Frank E.

Melton, President and Chief Executive Officer of WLBT-

TV, needed air transportation to travel from Jackson,

Mississippi to Tyler, Texas. Melton, unable to find appro-

priate accommodations on the traditional airlines,

searched the phone book for a charter airline. During that

search, Melton located Jim Hankins Aviation Services and

used it for that particular trip. Because Melton was satis-

fied with the way the pilot handled himself on that flight,

he began utilizing Jim Hankins Aviation Services regu-

larly.

On one particular flight, Melton experienced a

bumpy ride on a small airplane chartered by Jim Hankins

Air Service and expressed his displeasure to James and

Marian Hankins. Melton was then introduced to a larger

airplane, a used Beachcraft King Air B-90, the subject of

this litigation. Melton was pleased with the King Air’s

performance and began using it exclusively.

On several trips in and out of the airport, Marian

Hankins approached Melton to talk about the possibility

of selling the King Air. Although very pleased with the

King Air, Melton informed Marian that he had no interest

in purchasing an airplane. However, after traveling exclu-

sively on the King Air for 30 or 40 days, Melton decided

to talk to the Hankins about purchasing the airplane.

During the negotiation phase, James Hankins pro-

vided Melton with “facts and figures” regarding the costs

of maintenance, repair and operation of the airplane.

Both Marian and James Hankins told Melton that the

King Air was a “good, dependable airplane.” James Han-

kins asserted that the airplane would require no big ticket

maintenance items in the near future “[o]n at least four

occasions in [Melton’s] presence.”

Duane Charles Lebl, Jr., a financial analyst at WLBT

during the negotiation period, first met with James and

Marian Hankins in April of 1985, at Jim Hankins Air

Service, to try “to figure out if it was worth looking into

purchasing a plane.” At that meeting, the Hankins told

Leb] that the airplane was a “good airplane.” Leb! “was

led to believe that there were gonna be no big ticket items

[in the near future]”; and “that the only maintenance the

plane needed was routine maintenance.” Lebl “left the

meeting with the impression that, really, all [he] needed

to worry about was routine cost.”

Of the several meetings with James and Marian Han-

kins, Lebl particularly remembered the meeting which

took place at WLBT to “discuss the economics of purchas-

ing a plane, operating a plane.” At that meeting, the

parties again discussed the fact that there “were no big

ticket items coming up in the near future” and that “all

the maintenance that [they] should expect on a plane

would be routine maintenance.” James and Marian Han-

kins represented the King Air “to be in really good

shape.” The King Air “was represented as being a very

good plane, that it had been well maintained and was in

excellent condition.”

On July 23, 1985, Melton purchased the King Air

from Marian and James Hankins’ son, Jim Hankins, Jr.,

for $198,000,! and executed a promissory note to Trust-

mark for $177,300 for the purchase. Melton hired Michael

Stephen Hankins, Jr., also the son of James and Marian

Hankins, as his chief pilot.

On February 29, 1986, Michael grounded the airplane

for its annual inspection. In May of 1986, three months

after the plane had been grounded, Michael gave Melton

a list of seventeen items that had to be replaced or

repaired on the King Air to make it airworthy. The list

included new hot sections for the engines. Melton met

with James Hankins to discuss the necessary repairs

needed to make the King Air airworthy. During that

meeting, James Hankins suggested that Melton sell the

airplane.

After Melton’s meeting with James Hankins, Marian

Hankins contacted Melton “a number of times on the

telephone wanting permission to place ads in maga-

zines.” She reminded Melton of an “agreement with

them, that [he] would give them the first right to buy

back the plane.” During one of those conversations, Mar-

ian Hankins told Melton that “the engines needed to be

overhauled and that [Melton] might want to consider

letting them find him some mid-time engines,” which

would cost approximately $175,000. After Jim Jr. offered

to buy the plane back from Melton for $5,000, Melton

1 Although Melton thought that the King Air was owned by

Jim Hankins Air Service, Inc., he later learned that Jim Hankins,

Jr. owned the airplane. The jury found in favor of Jim Hankins,

Jr.

moved the airplane from the Hankins’ hangar to Welch’s

hangar to secure it.?

On October 8, 1986, Melton filed a complaint against

James Hankins, Marian Hankins, Michael Stephen Han-

kins,? and Jim Hankins Air Service, alleging fraud and

breach of express and implied warranties. Melton

requested judgment against the defendants, jointly and

severally.

In their answer, the defendants asserted inter alia

that 1) the King Air was not defective and was reasonably

fit and suitable for its intended purposes, and that 2)

express or implied warranties are inapplicable to the

instant case. The defendants asserted affirmatively that

any defect in the used aircraft was either caused by or

known to Melton, or should, in the exercise of reasonable

care, have been known by him, and that Melton was

guilty of negligence in purchasing and continuing to use

the airplane without correction and such negligence was

the sole proximate cause of Melton’s loss or damage.

On February 17, 1987, Melton filed an amended com-

plaint and added Jim Hankins, Jr. as a defendant. On

March 24, 1988, the trial court entered a modified order

authorizing Melton to sell the King Air.4 On December 22,

2 Melton explained that after the plane was grounded,

Hankins left it on the runway, where it was susceptible to

weather conditions, instead of taking it back into the storage.

3 On March 28, 1990, defendant, Michael Stephen Hankins,

was dismissed pursuant to an agreement by the parties.

4 The plane was sold prior to trial for $63,700.

1988, the Hankins moved for summary judgment, which

was denied.

At the trial, which commenced on April 1, 1992,

. Melton testified to many of the facts noted here. His

| testimony was corroborated by Lebl. In addition, Joe

Bryon Tolbert, a pilot owning a charter business in Tyler,

Texas, testified as an expert witness on the appraisal of

airplanes. Tolbert testified that when he inspected the

King Air in May or June of 1986 after it was grounded,

the maintenance records showed that it had never had an

overhaul. At that time, the airplane had about 5,500 or

5,600 hours of flight time. The manufacturer recom-

mended that the engines be overhauled at 3,500 hours.

Tolbert valued the airplane as being worth “$32,000,

$35,000” and explained that an “overhaul would run

somewhere between $60,000 and $80,000 each.”

George Watson, an expert in aviation mechanics, tes-

tified to his opinion that the King Air’s engines should

have been overhauled 2,000 hours prior to its sale to

Melton. Watson explained that:

[The] plane was maintained under the manufac-

ture’s recommended procedures according to

the log books. So they should have - it should

‘ have been maintained — if you’re going to follow

some of them, you need to follow all of them. If

you are not going to do the manufacturer’s pro-

gram, then you should have your own program

or whatever.

ne enh

: Watson admitted, however, that because there was no

indication in the log books that James or Marian Hankins

owned the King Air, there was also no indication in

relation to the log books and the regulations that Marian,

James, or Jim Hankins Air Service was responsible under

the regulations to maintain the King Air.

As the plaintiff’s final witness, Marian Hankins,

called as an adverse witness, gave testimony on the dis-

position of the proceeds received from the sale of the

plane. She explained that the proceeds were used to clear

debts of their son, Jim Jr., with Great Southern National

Bank and Jim Hankins Air Service. At the close of the

plaintiff’s case, all of the defendants moved for a directed

verdict, which was eventually denied.

Defense expert, Billy H. Miller, admitted that the

owner/operator of each aircraft must choose one of five

possible inspection programs for the inspection of the

airplane and that in the instant case, the defendants chose

Option Number 4, which mandates that the owner/oper-

ator “follow a manufactured recommendation.”

Michael Stephen Hankins, chief pilot of the King Air,

testified that there was no question in his mind that

Melton knew that the airplane was not overhauled at

3,500 hours. Michael explained that after he grounded the

airplane, he recommended to Melton that he invest

$30,000 in the hot section to make the King Air airworthy.

Testifying in his own behalf, James Hankins, the

president and treasurer of Jim Hankins Air Service,

admitted that he told Melton and Lebl that the King Air

was a “good plane” and that he didn’t expect any big

ticket maintenance items in the near future. James Han-

kins explained that although he didn’t say “I guarantee

you,” he was confident and “felt like there wouldn’t be

anything [to] come up in the near future, in a year or two

or three.” James Hankins explained that he also told

ET Ee

—

ek ee a SOS hE

Sonn ANGE ARID Ub aN a sce aa Sin bo a ee i IMs.

Melton and Leb! that the engines had 5,400 hours on

them and that the manufacturer recommended 3,500

hours between overhauls. However, James Hankins testi-

fied that he did not know of the requirement that the

engine could not fly over 3,500 hours and was surprised

to learn that the repairs were going to be as expensive as

they were.

James Hankins testified that, in a meeting after the

airplane was grounded, he and Melton discussed the cost

of repairing the airplane. During that meeting, Melton

told Hankins “I thought I needed the airplane, but I

don’t.” At that point, Hankins explained that he thought

the “sensible thing to do —- and I may have given the

wrong advice — was not to fix it, sell it as is.”

James Hankins also testified that neither he, Marian

Hankins, nor Jim Hankins Air Service had ever owned

the King Air. Hankins explained that in February of 1985,

Jim Jr., bought the King Air for $125,000 from Dr. Guy

Vice. Jim Jr., sold the King Air to Melton for $197,000 in

July of 1985.5 The proceeds from the sale of the aircraft

were distributed as follows: $92,300 to Jim Hankins Air

Service and $85,000 to Great Southern National Bank with

Jim Jr., as the remitter. Hankins explained that the check

made payable to Jim Hankins Air Service was to repay

him for the money that he had paid in the purchase of the

aircraft for Jim Jr.

5 Mr. Hankins explained that Dr. Guy Vice owned the King

Air from sometime in 1983 until February of 1985 when his son,

Jim, Jr. bought it. Dr. Vice stored the King Air at the Hankins’

facility.

10a

On April 3, 1992, the case was submitted to the jury

on fraud and alternative theories of warranty and implied

warranty of merchantability. In an unanimous decision,

the jury found in favor of the plaintiff, Melton, and

against the defendants, James H. Hankins, Sr., Marian

Hankins, and Jim Hankins Air Service, and awarded

Melton damages in the amount of $75,000. The jury did

not return a verdict against Jim Jr. The trial court entered

its written order on May 5, 1992. After the trial court

denied the defendants’ post-trial motions, they filed this

appeal.

Il.

THE TRIAL COURT ERRED IN DENYING APPEL-

LANTS’ MOTION FOR A DIRECTED VERDICT OR

JNOV AS THE EVIDENCE VIEWED IN THE LIGHT

MOST FAVORABLE TO THE PLAINTIFF COULD NOT

REASONABLY SUPPORT A FINDING OF FRAUD OR

BREACH OF WARRANTIES. ALTERNATIVELY, THE

JURY’S VERDICT WAS AGAINST THE OVERWHELM-

ING WEIGHT OF THE EVIDENCE AND THE TRIAL

COURT ABUSED ITS DISCRETION IN DENYING THE

MOTION FOR A NEW TRIAL.

Hankins contends that based on the evidence pre-

sented in the instant case, a reasonable jury could not

have found in Melton’s favor on the fraud or warranty

theories of recovery. Hankins, therefore, submits that the

trial court erred in failing to grant a directed verdict or

JNOV or, alternatively, a new trial since the verdict was

against the overwhelming weight of the evidence.

A motion for a directed verdict or a JNOV “tests the

legal sufficiency of the evidence supporting the verdict.”

lla

Goodwin v. Derryberry, 553 So. 2d 40, 42 (Miss. 1989)

(quoting Stubblefield v. Jesco, 464 So. 2d 47, 54 (Miss.

1984)).

It is a well-established rule that when a trial

court, or the [Court of Appeals] in this case,

considers such a motion, it must do so ‘in the

light most favorable to the party opposed to the

motion.’ The non-movant must also be given the

benefit of all favorable inferences that may rea-

sonably be drawn from the evidence. If the facts

and inferences so considered point so over-

whelmingly in favor of the defendant (movant)

that reasonable men and women could not have

arrived at a verdict for the plaintiff (non-

movant), granting the motion is required. The

burden on the movant in such cases is great, for

if there is ‘substantial’ evidence opposed to the

motion, which would allow reasonable and fair-

minded men and women to reach differing con-

clusions, the motion must be denied.

Green Acres Farms, Inc. v. Brantley, 651 So. 2d 525, 528

(Miss. 1995) (citations omitted).

“a sis wo

When addressing a motion for a new trial, “the trial

judge should set aside a jury verdict when, in the exercise

of his sound discretion, he is convinced that the verdict is

contrary to the substantial weight of the evidence.”

McKinzie v. Coon, 656 So. 2d 134, 134 (Miss. 1995); see also

Harvey v. Wall, 649 So. 2d 184, 186 (Miss. 1995).

The instant case was submitted to the jury on alterna-

tive theories of express and implied warranty and fraud.

The jury returned a general verdict for the plaintiff. On

appeal, Hankins advances arguments under each of the

theories; however, because we find Hankins’ statements

12a

to the plaintiff to be affirmations of fact or promises, and

a part of the “basis of the bargain,” we will only address

the express warranty theory.

An express warranty, which “may be verbal as well

as written,” Fitzner Pontiac Buick-Cadillac, Inc. v. Smith,

523 So. 2d 324, 325 (Miss. 1988), is controlled by section

75-2-313 of the Mississippi Code of 1972. Here, “we are

concerned not so much with what the seller intended as

with what he said.” Fitzner Pontiac Buick-Cadillac, Inc., 523

So. 2d at 325. “This includes what [Hankins] had said to

[Melton] in the course of the negotiations.” Id.

Mississippi law provides that “any affirmation of fact

or promise made by the seller which relates to the goods

and becomes part of the basis of the bargain creates an

express warranty that the goods shall conform to the

affirmation or promise.” Miss. Code Ann. § 75-2-313

(1972). “An affirmation merely of the value of the goods

or a statement purporting to be merely the seller’s opin-

ion or commendation of the goods does not create a

warranty.” Id; Global Truck & Equip. Co. v. Palmer Mach.

Workers, 628 F. Supp. 641, 651 (N.D. Miss. 1989); Fitzner

Pontiac Buick-Cadillac, Inc., 523 So. 2d at 325.

In the instant case, Hankins admits that he told

Melton and Lebl that the plane was “a good plane” and

that the airplane would not need any major items of

maintenance or repair in the near future. He explained

that although he didn’t say “I guarantee you,” he was

confident and “felt like there wouldn’t be anything [to]

come up in the near future, in a year or two or three.”

However, he contends that his statements were opinions

on the value of the King Air and did not rise to the level

oar ee ee ee

Sia os eit Ide

13a

of an express warranty. Hankins argues that such state-

ments are vague generalizations describing his opinion or

expectations about the overall condition of the airplane,

and lacked the specificity required to constitute an

express warranty. Hankins, therefore, asks this Court to

hold that given the ambiguous nature of the phrase “near

future,” his statements could not have been the “basis of

the bargain” between Melton and the Hankins. We

decline to so hold.

We agree with Melton that when reviewed in their

entirety, the Hankins’ statements went beyond simple

commendations and puffing. Melton and Lebl were told

that the airplane was a “good airplane” and that no major

repairs were expected in the near future. They were led to

believe that the engines had received scheduled mainte-

nance and that no more than routine maintenance would

be necessary in the near future. Such assurances and

representations constitute express warranties. See Limited

Flying Club v. Wood, 632 F.2d 51, 56 (8th Cir. 1980) (hold-

ing that an express warranty had been created when the

defendant, seller of an airplane, showed the buyers the

airplane’s logbooks, which reflected repairs that had been

performed on the airplane)).

We find that the trial court in the instant case acted

properly in finding that “there was a jury question on the

issue of whether there was a breach of express warranty”

where “taking as true the testimony offered by the

[buyer].” Taylor v. Ward, 393 So. 2d 1342, 1345 (Miss.

1981). “[I]n many sales of used or second hand vehicles,

there may not be any express warranty, but in this case

there was such evidence which should have been passed

upon by the jury.” Id. at 1346.

l4a

Upon examining the record, we are convinced that

the evidence was legally sufficient to sustain the jury

verdict and that the weight of the evidence supports the

decision in favor of Melton. Accordingly, we find that the

trial court did not abuse his discretion in. denying the

motion for a directed verdict, JNOV, or alternatively, a

new trial.

Ill.

WHETHER FAULTY JURY INSTRUCTIONS RESULTED

IN JURY CONFUSION AND WHETHER THE TRIAL

JUDGE ABUSED HIS DISCRETION BY REFUSING TO

GRANT APPELLANTS’ MOTION FOR NEW TRIAL.

Hankins contends that Instruction P-3 is an incorrect

statement of the law and was confusing to the jury. P-3, as

presented to the jury, stated:

If you find from a preponderance of evidence in

this case that the defendants or any of them:

A. Stated as a fact or promised to Mr.

Frank Melton or anyone acting on his behalf

that the airplane which is the subject of this

lawsuit would not require any major items

of maintenance or incur any major repair

costs in the near future, or

B. Described the airplane to Mr. Melton or

anyone acting on his behalf as having no

problems and assuring such person or per-

sons that there would be no major or

extraordinary maintenance expenses or stat-

ing that the engines have a lot of life left on

them or otherwise assuring the plaintiff that

15a

the engines on the subject aircraft would

present no major expense;

Then any such statement constituted an express

warranty as to the condition of the plane. If you

further find that Frank Melton relied on such

warranties, and that the airplane in fact was not

in the warranted condition[,] [t]hen your verdict

shall be for the plaintiff in an amount to be

determined under other instructions pertaining

to damages.

The record indicates that Hankins requested and was

granted D-18 which clearly defined an express warranty.

D-18 stated that:

The Court instructs you that there was no

written warranty provided by any seller to

Frank Melton in relation to this airplane. The

plaintiff’s claim relates to oral guarantees or

promises claimed to be made by the sellers.

All comments and representations about the

airplane do not create warranties. In order for

something said by the seller to be an express

warranty,

1. It must be either an affirmation of fact or

promise;

2. It must relate to the airplane; and

3. It must become part of the basis of the bar-

gain.

This Court does not review jury instructions in isola-

tion; rather they are read as a whole to determine if they

“announce the primary rules of law.” Bradford ex rel.

Burton v. Barnett, 615 So. 2d 580, 583 (Miss. 1993); Strick-

land v. Rossini, 589 So. 2d 1268, 1273 (Miss. 1991). Reversal

l6a

is in order on the basis of faulty jury instructions “where

we find two or more instructions in hopeless and sub-

stantive conflict with each other.” Strickland, 589 So. 2d at

1273. However, reversal is not proper “if other instruc-

tions clear up the confusing points.” Id.

The jury instructions submitted in the instant case

accurately reflected the rules of law applicable to a cause

of action for breach of an express warranty. Because the

jury was properly instructed, this Court finds that this

assignment of error is without merit.

IV.

THE TRIAL COURT’S DENIAL OF APPELLANT’S

MOTION TO DUPLICATE THE TRIAL TAPES FOR THE

PURPOSE OF COMPARING THEM WITH THE OFFI-

CIAL TRIAL TRANSCRIPT IS AN UNCONSTITU-

TIONAL DENIAL OF DUE PROCESS.

Hankins contends that the trial court erred when it

refused to allow him to duplicate the trial tapes and that

such refusal is an unconstitutional denial of due process.

Hankins explains that upon discovering discrepancies in

the record and at least one “obvious gap” in the official

trial transcript at page 143, he moved the trial court to

allow him to duplicate the trial tapes to compare them

with the trial transcript.

The record indicates that after Hankins filed the

“Statement of Errors in Trial Transcript” with the trial

court, the court reporter reviewed the trial transcript and

tapes and made the necessary changes. Upon reviewing

page 143, we found that all this page reveals is a recess

following the cross-examination of Melton, followed

ae ee ee

Ida

immediately by his re-direct examination. Appellants

have not suggested or demonstrated any errors or omis-

sions which remain in the transcript, nor any damage

done to their appeal as a result of any errors or omissions

in the trial transcripts.

“The standard of review of a post-trial motion is

abuse of discretion.” Johnson v. State, 642 So. 2d 924, 928

(Miss. 1994); Flowers v. State, 601 So. 2d 828, 833 (Miss.

1992); Robinson v. State, 566 So. 2d 1240, 1242 (Miss. 1990).

As such, Hankins was required to show an abuse of

discretion, which he failed to prove. This assignment of

error is without merit.

For the foregoing reasons, we affirm the judgment of

the trial court.

THE JUDGMENT OF THE HINDS COUNTY CIR-

CUIT COU®ST IN FAVOR OF THE APPELLEE IS

AFFIRMED. STATUTORY DAMAGES AND INTEREST

ARE AWARDED. ALL COSTS ARE TAXED TO THE

APPELLANTS.

FRAISER, C.J., BRIDGES AND THOMAS, PJJ.,

BARBER, COLEMAN, DIAZ, MCMILLIN, AND

SOUTHWICK, JJ., CONCUR.

PAYNE, J., DID NOT PARTICIPATE.

18a

IN THE SUPREME COURT OF MISSISSIPPI

NO. 92-CA-0710

James A. Hankins, Sr., et all.,

Appellants

Frank E. Melton

Appellee

ORDER

This matter came before this Court on the motion of

the appellants to supplement the record. |

Miss.Sup.Ct.Rule 10(e) states in part as follows:

(e) Correction or Modification of the Record. If

any difference arises as to whether the record

truly discloses what occurred in the trial court,

the difference shall be submitted to and settled

by that court and the record made to conform to

the truth. .. . Any document submitted to this

Court for inclusion in the record must be certi-

fied by the clerk of the trial court.

This Court finds that the motion of the appellants to

supplement the record should be denied.

THEREFORE, IT IS ORDERED that the motion of

the appellants to supplement the record be, and hereby is,

denied.

SO ORDERED, this the 6th day of December, 1993.

/s/ James L. Roberts, Jr.

FOR THE COURT

19a

Amendment XIV

.. . nor shall any State deprive any person of life,

liberty, or property, without due process of law. . . .

20a

Mississippi Constitution Art. 3

Section 24. All courts shall be open; and every per-

son for an injury done him in his lands, goods, person, or

reputation, shall have remedy by due course of law, and

right and justice shall be administered without sale,

denial, or delay.

Miss. Code Ann.

§ 11-51-3. Appeals to Supreme Court.

An appeal may be taken to the Supreme Court from

any final judgment of a circuit or chancery court in a civil

case, not being a judgment by default, . . .

2la

§ 25-61-1. Short title.

This chapter shall be known and may be cited as the

“Mississippi Public Records Act of 1983.”

§ 25-61-3. Definitions.

The following words shall have the meanings

ascribed herein unless the context clearly requires other-

wise:

(a)

(b)

“Public body” shall mean any department,

bureau, division, council, commission,

committee, subcommittee, board, agency

and any other entity of the state or a politi-

cal subdivision thereof, and municipal cor-

poration and any other entity created by

the Constitution or by law, executive order,

ordinance or resolution. Within the mean-

ing of this chapter, the term “entity” shall

not be construed to include individuals

employed by a public body or any appoin-

ted or elected public official.

“Public records” shall mean all books,

records, papers, accounts, letters, maps,

photographs, films, cards, tapes, record-

ings or reproductions thereof, and any

other documentary materials, regardless of

physical form or characteristics, having

been used, being in use or prepared, pos-

sessed or retained for use in the conduct,

transaction or performance of any busi-

ness, transaction, work, duty function of

any public body, or required to be main-

tained by any public body.

22a

§ 25-61-5. Public access to records; form and retention

of denials.

(1) Except as otherwise provided by section 25-61-9

and 25-61-11, all public records are hereby declared to be

public property, and any person shall have the right to

inspect, copy or mechanically reproduce or obtain a

reproduction of any public record of a public body in

accordance with reasonable written procedures adopted

by the public body concerning the cost, time, place and

method of access, and public notice of the procedure shall

be given by the public body, or, in the event that a public

body has not adopted such written procedures, the right

to inspect, copy or mechanically reproduce or obtain a

reproduction of a public record of the public body shall

be provided within one (1) working day after a written

request for a public record is made. No public body shall

adopt procedures which will authorize the public body to

produce or deny production of a public record later than

fourteen (14) working days from the date of request for

the production of such record.

(2) Denial by a public body of a request for access to

or copies of public records under this chapter shall be in

writing and shall contain a statement of the specific rea-

sons for the denia!. Each public body shall maintain a file

of all denials of requests for public records. Public bodies

shall be required to preserve such denials on file for not

less than three (3) years from the date such denials are

made. This file shall be made available for inspection

and/or copying during regular office hours to any person

upon written request.

23a

§ 25-61-9. Certain records furnished by third parties,

protection; procedure; application of Trade

Secrets Act.

(1) Records furnished to public bodies by third par-

ties which contain trade secrets or confidential commer-

cial or financial information shall not be subject to

inspection, examination, copying or reproduction under

this chapter until notice to said third parties has been

given, but such records shall be released within a reason-

able period of time unless the said third parties shall have

obtained a court order protecting such records as confi-

dential.

(2) If any public record which is held to be exempt

from disclosure pursuant to this chapter contains material

which is not exempt pursuant to this chapter, the public

body shall separate the exempt material and make the

nonexempt material available for examination and/or

copying as provided for in this chapter.

(3) Trade secrets and confidential commercial and

financial information of a proprietary nature developed

by a college or university under contract with a firm,

business, partnership, association, corporation, individ-

ual or other like entity shall not be subject to inspection,

examination, copying or reproduction under this chapter.

(4) Misappropriation of a trade secret shall be gov-

erned by the provisions of the Mississippi Uniform Trade

Secrets Act, Section 75-26-1 through 75-26-19.

(5) A waste minimization plan and any updates

developed by generators and facility operators under the

Mississippi Comprehensive Multimedia Waste Minimiza-

tion Act of 1990 shall be retained at the facility and shall

24a

not be subject to inspection, examination, copying or

reproduction under this chapter.

§ 25-61-11. Records exempted or privileged by law.

The provisions of this chapter shall not be construed

to conflict with, amend, repeal or supersede any constitu-

tional or statutory law or decision of a court of this state

or the United States which at the time of this chapter is

effective or thereafter specifically declares a public record

to be confidential or privileged, or provides that a public

record shall be exempt from the provisions of this chap-

ter.

25a

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI

No. 92-CA-0710

James HANKINS, SR. ET AL

APPELLANTS

vs.

FRANK E. MELTON

APPELLEE

MoTION TO SUPPLEMENT RECORD

Comes Now JAMES HANKkINs, Sr. et al, and move the

Court to supplement the transcript on appeal as follows:

1. The record, when first presented to the appel-

lants, contained numerous mistakes, a list of which was

furnished to the trial court and court reporter. Some of

the mistakes have been corrected, but numerous errors

still exist.

2. The appellants further requested the trial Court

to allow them to review the tapes of the trial appealed

from but the trial Court denied the request.

3. The Appellants subsequently moved this Court to

allow them to review the tapes of the trial, but this Court

denied the request.

4. The Ex Parte Motion for Time to Correct Tran-

script, the Order granting the time but denying the

request to furnish the tapes of the trial, and the Statement

of Errors in Transcript Of Trial, all filed in the trial court,

are not contained in the Clerk’s Papers which are a part

of the appellate record of this case. The appellants intend

26a

to argue that the denial of the request to review the trial

tapes by the trial court and this Court constitutes a denial

of due process under the Mississippi and U.S. Constitu-

tions, and that, consequently the three documents,

attached hereto are necessary for this Court to consider

this issue.

Wuererore, the appellants move this Court to supple-

ment the record on appeal by inclusion of the three

attached documents.

Respectfully Submitted,

James HANKINS, SR. ET AL,

APPELLANTS

By: /s/ Thomas J. Lowe, Jr.

His Attorney

THomas J. Lowe, Jr. MSB #1458

P.O. Box 2050

Jackson, MS 39225

Telephone: (601) 354-1027

CERTIFICATE

I, Thomas J. Lowe, Jr., certify that I have this day,

January 13, 1994, mailed a copy of the foregoing Motion

to the Hon. Joshua J. Weiner, P. O. Box 12023, Jackson, MS

39236-2023.

/s/ Thomas J. Lowe, Jr.

Thomas J. Lowe, Jr.

27a

IN THE CircuIT COURT OF THE

First Jupiciat District oF Hinps

County MiIssissipr!

FRANK E. MELTON

PLAINTIFF

vs. Crvit Action No: 34,062

James HANKINS, SR. ET AL

DEFENDANTS

Ex Parte MoTION FOR TIME TO

CorRECT TRANSCRIPT

(Filed March 25, 1993)

Come now the Defendants, by and through counsel,

to stay the transmission of the transcript of the trial of

this cause to the Supreme Court for the following rea-

sons:

1. The Defendants have carefully read the transcript

and have found numerous errors, some trivial, some

material;

2. The Defendants will need to listen, if possible, to

copies of the tapes of the trial to verify the accuracy.

Wherefore, the Defendants pray that this Court order

the Clerk to stay the transmission of the record of this

cause to the Supreme Court for a reasonable time in order

for the Defendants to review the tapes of the trial with

the transcript;

The Defendants further pray that the Court order the

Court Reporter to make ava'lable the tapes of the trial of

28a

this Cause or true copies thereof to the Defendants for the

above-stated purposes.

Respectfully Submitted,

James HANKINS, SR. ET AL,

DEFENDANTS

By: /s/ Thomas J. Lowe, Jr.

Their Attorney

THomas J. Lowe, Jr. MSB #1458

P.O. Box 2050

Jackson, MS 39225

Telephone: (601) 355-2900

29a

IN THE CircurT COURT OF THE

First JupiciaL District oF Hinps

County MIississipp1

FRANK E. MELTON

PLAINTIFF

vs. Crvi_t Action No: 34,062

James HANKINS, SR. ET AL

DEFENDANTS

STATEMENT OF ERRORS IN TRANSCRIPT OF TRIAL

(Filed May 3, 1993)

Come the Defendants and state that they believe that

the following errors exist in the current transcript of the

trial and request the Court to amend the transcript or, if

necessary, to allow the parties or their counsel to listen to

the tapes of the trial in order to correct the transcript.

ERRORS

006 Melton

P. 040 Line 19 Taxi tank?

P. 040 Line 21-27 Don’t remember this being said.

P. 040 Line 23-25 What was the arrangement made to

have your pilot tip in?

045 Line 19 Michael Hankins, Sr.?

049 Line 11 Michael Hankins, Jr.?

060 Line 11-12 inserted? It was done on a bid basis.

067 Line 24-25 her whole charter.

068 Line 8 did Jeff Hankins, Sr.

Sr ee eee

30a

P. 069 Melton Cross

P. 073 Line 9 Mike Hankins, Jr.,?

P. 077 Line 20 cash or crash or?

P. 078 Line 4-9 Doesn’t make sense. Something is

not written correctly.

P. 090 Line 12-13 Confusing (2) different values.

P. 090 Line 6-7 this says 240? With high hours.

P. 106 Line 20 240?

P. 106 Line 26 knew?

P. 108 Line 7 by.

P. 122 Line 18 Title or purchase.

P. 124 Line 6 113?

P. 129 Line 25-29 Don’t recall this

P. 130 Line 1-10 Don’t recall this and it seems strange

at this point of questioning.

P. 136 Line 26-28 Don’t recall anything said about bid.

P. 137 Line 3 (63)?

P. 141 Line 4 Patient.

P. 141 Line 29 (don’t remember it this way)

P. 143 Line 13-14 missing something. - Buffy Beach

never finished (Recess) What hap-

pened precisely? Re-Direct examina-

tion by Holland? (Something is

missing?)

P. 143 Line 21 Something is missing

P. 150 Line 17 Jim Hankins Sr.

; Fou

> oe

- oe

. 153

Line

3la

Bids on the plane, don’t remember

this.

Hankins Aviation.

(Hankin Aviator, Inc.). Need exhibit

—- April 39, 1985, 12:00 noon.

Dewayne Lebl Testimony

. 160

. 161

P. 162

. 162

P. 162

P. 163

. 164

P. 164

P. 169

Line

22-23

7-19

6-26

1-5

2-29

14-15

1-29

12-13

13-15

Told couldn’t use as air taxi. Told

cost $120,000.00 to overhaul engine.

Incoherent.

mechanism — doesn’t make sense

Don’t remember it this way.

told recommend 3,500 between over-

hauls.

incoherent — not right, sounds crazy,

may be written wrongly.

incoherent.

confusing

tied in together 12,000 hours in Can-

ada only; confusing.

confused.

Not how I remembered.

confused. Line 5 Dewayne said

rental income not lease.

plane would not cash flow - contra-

diction, confusing.

confusing.

company (WLBT) rented not leased.

P. 170.

P. 172

P. 177

177

178

P. 185

186

Line 6

Line 8-9

Line 1

Line 23-27

Line 4

Line 4-5

Line 12-28

32a

Confusing.

Don’t remember this.

To translate — note B in this loan or

$177,000.00 came from Trustmark?

incoherent. Jury about of any money.

Line 8-9 Trustmark???

Plane would not break even -—

needed rental not lease income.

Before oil crunch-don’t remember.

“would say the biggest item defi-

nitely would” — sentence confusing.

Confusing.

Near future, not 3 to 5 years.

187 Tolbert testimony errors, need tape.

P. 188

ee oe eee ee

189

192

193

Line 13

Line 22

Line 17-29

Line 10

Line 11

Line 23

Line 4

Line 11

Line 3

incoherent.

“we are now for 11 years”. Confus-

ing.

Question: where did you write no

big

I was like. — incoherent.

Cursory inspection.

Cursory of aircraft?

cursory? incoherent.

Rates?

FAA maintenance rates? Incoherent

Line 11 rates? Incoherent.

33a

We're? Only 1 person talking.

“for the” confusing.

incoherent.

“We”? Who? Only one person sup-

pose to be talking in the first person

or was he with someone or did he

see another person?

Air carrier pilot — certificate RCI

A-41 Hotel? Confusing.

incoherent.

Doesn’t make sense.

overhauling — (inspecting)

Bratton (not right).

Relates to Maintenance?

Refer to Page 223, Line 25-29 same.

With the sale of the aircraft.

“as August” — confusing.

Corporate Mill.

day before? Incoherent.

“for” — confusing.

NOTE: Some of Tolbert’s and Wat-

son’s testimony is missing - Sun-

screen was mentioned and is not in

either testimony.

P. 197 Line 11

P. 198 Line 18

P. 198 Line 18-19

P. 201 Line 14

P. 201 Line 27-29

P. 202 Line 4-6

P. 203 Line 4-10

P. 205 Line 21

P. 218 Watson's Testimony

P. 223 Line 20

r 2aee tane S

P. 240 Line 14-19

P. 243 Lines 7

P. 246 Line 3

P. 247 line 13

P. 247 Line 17

P. 251 Line 24

P. 258 Line 13

Not Louise — Marion Lou Hankins

ie cae ae) Ce oe

268

269

274

278

279

284

289

297

299

Line 6-8

Line 8

Line 13

Line 8

Line 15-29

Line 1-5

Line 21-25

Line 3

Line 2-5

Line 2

Line 13

Line 8

34a

Not in complete form - need tape.

need tape, not like it was said in

court.

something is missing.

not like it was said.

Confusing - Don’t think it was said

this way.

Not right.

Confusing. Also line 1-5.

(you) referring to Jim Hankins Sr.?

(Confusing.)

Don’t remember it this way.

Don’t remember saying this.

Don’t remember it this way.

Corporate Mill.

incoherent

299 Missing Statements And Inserted Material:

Holland Watson - Sunscreen was

omitted from transcript it was men-

tioned at the trial.

Melton - Put up for bids - note:

never heard bids mentioned at trial

Jim Hankins - One or two or three

years — never heard this at trial.

35a

P. 308 Billy Miller's Testimony

P. 309 Line 29 Something missing.

P. 310 Line 19-20 Incoherent (something missing.)

P. 310 Line 1 Something missing.

P. 312 Line 20-21 something missing.

P. 312 Line 27-29 something missing.

P. 312 Line 7 “Recently.”

P. 315 Line 18-20 Something is missing.

P. 317 _Line 15 incoherent.

P. 318 Line 10 Confusing

P. 318 Line 11 “here” — (I think “there”)

P. 320 Line 6 i ae

P. 321 Line 16 Not coherent. — “this one was built

for 91”

P. 321 Line 26 “including compliance with part

op”.

P. 322 Line 13 Whether it’s 35,45, or what not, not

coherent.

P. 323. Line 12 “as” — what do they mean?

P. 323 Line 26 Part 31?

P. 324 Line 13 Unclear as to date. —- Same reference

March 21, 1985.

P. 324 Line 4 Date, March 21, 1984?

P. 326 Line 8 One of the airplanes. Confusing

P. 327 Line 3 59,222.40 (Time on engine in

5/11/84.)

36a

P. 334 Michael Hankins Testimony:

P. 335 Line 29 Incoherent, wrong.

P. 336 Line 2-7. Check tape.

P. 336 Line 16 Incoherent, “I sold it.” (Should be

“soloed”)

P. 337 Line 11 Don’t remember it this way.

P. 338 Line 27-29 Don’t remember it this way - refer-

ring to JHN.

P. 344 Line 5 wrong date.

P. 347 Line 17. —ihad some 5,544 (did it fly back-

ward?) Wrong numbers.

P. 347 Line 8 had some 5,444 m. on it.

P. 350 Jim Hankins Testimony

P. 355 Line 18-19 Not said like this (something missing)

P. 360 Line 16-17 “in a year or two or three” — Don’t

think Jim Hankins said this only said

in the near future.

P. 361 Line 6-7 confusing.

P. 363 Line 12 never said this

Respectfully Submitted,

James Hankins, SR. ET AL,

DEFENDANTS

By: /s/ Thomas J. Lowe, Jr.

His Attorney

THomas J. Lowe, Jr. MSB #1458

P.O. Box 2050

Jackson, MS 39225

Telephone: (601) 355-2900

37a

CERTIFICATE

I, Thomas J. Lowe, Jr., hereby certify that I have this

date, May 3, 1993, served by U.S. Postage, first class, the

foregoing Statement of Errors on the foilowing persons at

these addresses:

Ms. Sarah Sims, Court Reporter

P.O. Box 327

Jackson, MS 39205

Hon. Joshua J. Weiner

P.O. Box 12023

Jackson, MS 39236-2023

/s/ Thomas J. Lowe, Jr.

Thomas J. Lowe, Jr.

38a

IN THE Circurr CourT OF THE

First JupiciaL District or Hinps

County MIssissipp1

FRANK E. MELTON

PLAINTIFF

vs. Crvi_ Action No: 34,062

James HANKINS, SR. ET AL

DEFENDANTS

ORDER

The Ex Parte Motions for Time to Correct Transcript

filed by the Defendants is sustained as to the stay of the

transmission of the record on appeal to the Mississippi

Supreme Court and denied at this time as to the request

for the defendants to review the court reporter’s tapes of

the trial or copies thereof.

The defendants will submit to the Court no later than

April 30, 1993, a list of specific discrepancies or inac-

curacies in the transcript and serve a copy of same upon

opposing counsel.

Ordered This 13th day of April, 1993.

/s/ Robert Lewis Gibbs

Circuit Judge

Drafted by:

THomas J. Lowe, Jr. MSB #1458

P.O. Box 2050

Jackson, MS 39225

Telephone: (601) 355-2900

Attorney for Defendants

Sh sss tsi: tate,

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.