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CERTIFICATE OF INTERESTED PERSONS

Case No. 2012-TS-00125

Narjess Ghane, Individually and on Behalf a/the Wrongful Death Beneficiaries o/Shapoor
Alexander ("Alex") Ghane, Jr. v. Mid-South Institute o/SelfDeftnse Shooting, Inc., a Tennessee
Corporation, JFS, LLC, a Mississippi Limited Liability Company, John Fred Shaw, Donald Ross
Sanders, Jr., Jim Cowan, and John Doe(s) 1-100

The undersigned counsel of record certifies that the following listed persons have an interest

in the outcome of this case. These representations are made in order that the justices of the

Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualification

or recusal.

1. Narjess Ghane, Appellant/Cross-Appellee;

2. Mid-South Institute of Self Defense Shooting, Inc., JFS, LLC, John Fred Shaw,

Donald Ross Sanders, Jr., and Jim Cowan, Appellees/Cross-Appellants;

3. Benjamin L. Taylor and Taylor Jones Taylor, Attorney of Record for AppellantiCross-

Appellee;

4. Jay M. Atkins, Jeffrey E. Nicoson, Thomas P. Cassidy, Jr. and Leitner, Williams,

Dooley & Napolitan, PLLC, and Robert Q. Whitwell and Farese, Farese and Farese, Attorneys of

Record for Appellees/Cross-Appellants; and

5. The Honorable Robert P. Chamberlain, Circuit Judge, Seventeenth Judicial District.

(02688282.DOCl - I -
 TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS ........................................................................... i

TABLE OF CONTENTS ........................................................................................................... ii

TABLE OF AUTHORITIES ..................................................................................................... iii

STATEMENT OF CROSS-ISSUES ........................................................................................... 1

CITATIONS TO THE RECORD ................................................................................................ 1

STATEMENT OF THE CASE ................................................................................................... 2

SUMMARY OF THE ARGUMENT ........................................................................................... 2

STANDARD OF REVIEW ......................................................................................................... 3

ARGUMENT ............................................................................................................................. .4

I) The Participation Contract Unambiguously Encompassed The Risks And Dangers That
Allegedly Caused Ghane's Death ........................................................................................ 5

II) Cross-Appellee's Other Arguments Against The Participation Contract Are Unavailing .... 10

A) Ghane Was An Enrolled Student At Mid-South ......................................................... 10

B) Cross-Appellee Has Not Demonstrated Any Misrepresentations Sufficient To

Negate The Terms Of The Participation Contract... .................................................... 12

C) The Participation Contract Is Not Unconscionable ..................................................... 15

III) Massey v. Tingle Is Once Again Ignored ............................................................................ 16

CONCLUSION ......................................................................................................................... 17

CERTIFICATE OF SERVICE .................................................................................................. 19

- ii -
 TABLE OF AUTHORITIES

United States Supreme Court Cases

Bakerv. Carr, 369 U.S. 186 (1962) ........................................................................................... 12

United States Circuit Court Cases

Lane v. Halliburton, 529 F.3d 548 (5th Cir. 2008) ..................................................................... 12

United States District Court Cases

Bank of Indiana, Nat'l Ass'n v. Holyfield, 476 F. Supp. 104 (S.D. Miss. 1979) .......................... 16

Titan Indem. Co. v. City of Brandon, 27 F. Supp. 2d 693 (S.D. Miss. 1997) .............................. 11

State Court Cases

Borne v. Dunlop Tire Corp., Inc., 12 So. 3d 565 (Miss. Ct. App. 2009) ....................................... 8

Covenant Health & Rehab. of Picayune, LP v. Estate of Moulds ex rei. Braddock, 14 So.
3d 695 (Miss. 2009) ........................................................................................................... 16

Covenant Health & Rehab. of Picayune, LP v. Lumpkin ex reZ. Lumpkin, 23 So. 3d 1092
(Miss. Ct. App. 2009) ........................................................................................................ 12

East Ford, Inc. v. Taylor, 826 So. 2d 709 (Miss. 2002) ....................................................... 15, 16

Entergy Mississippi, Inc. v. Burdette Gin Co., 726 So. 2d 1202 (Miss. 1998) ............................. 15

Epperson v. SOUTHBank, 93 So. 3d 10 (Miss. 2012) ........................................................ 8, 9,10

Falkner v. Hinckley Parachute Ctr., Inc., 533 N.E.2d 941 (Ill. Ct. App. 1989) ............................ 5

Lacy v. Morrison, 906 So. 2d 126 (Miss. Ct. App. 2004) ........................................................... 12

Malecha v. St. Croix Valley Skydiving Club, Inc., 392 N.W.2d 727 (Minn. Ct. App. 1986) .......... 5

Massey v. Tingle, 867 So. 2d 235 (Miss. 2004) ...................................................................... 4, 17

McCune v. Myrtle Beach Indoor Shooting Range, Inc., 612 S.E.2d 462 (S.C. Ct. App.
2005) ................................................................................................................................... 5

MS Credit Ctr., Inc. v. Horton, 926 So. 2d 167 (Miss. 2006) ............................................... 11, 16

Price v. Purdue Pharma Co., 920 So. 2d 479 (Miss. 2006) .......................................................... 8

Pursue Energy Corp. v. Perkins, 558 So. 2d 349 (Miss. 1990) .................................................. 17

- iii -
Royer Homes of Mississippi, Inc. v. Chandeleur Homes, Inc., 857 So. 2d 748 (Miss.
2003) ............................................................................................................................... 6,9

Scott v. Gammons, 985 So. 2d 872 (Miss. Ct. App. 2008) ............................................................ 6

Terre Haute Cooperage v. Bransome, 35 So. 2d 537 (Miss. 1948) ............................................ 15

Trinity Mission of Clinton, LLC v. Barber, 988 So. 2d 910 (Miss. Ct. App. 2007) ..................... 15

Turnbough v. Ladner, 754 So. 2d 467 (Miss. 1999) ............................................................. 5, 6, 7

Turner v. Terry, 799 So. 2d 25 (Miss. 2001) ................................................................................ 9

Vicksburg Partners, L.P. v. Stephens, 911 So. 2d 507 (Miss. 2005) ........................................... 15

Whiteheadv. Johnson, 797 So. 2d 317 (Miss. 2001) ............................................................ 13,14

Zumwalt v. Jones County Bd. of Supervisors, 19 So. 3d 672 (Miss. 2009) ................................. 17

- IV -
 STATEMENT OF CROSS-ISSUES

1) Whether the Trial Court incorrectly denied summary judgment to Appellees/Cross-

Appellants when it concluded there were questions of material fact as to whether the

participation contract signed by Shapoor Alexander Ghane, Jr. released

Appellees/Cross-Appellants from liability for the death of Shapoor Alexander Ghane,

Jr. during a live-fue exercise in one of the shoot houses on the property of the Mid-

South Institute of Self Defense Shooting, Inc.

CITATIONS TO THE RECORD

For purposes of clarity, all citations to the trial court record in this Brief will be cited as

follows: "(R. (Page Number).)" The trial court also designated, as part of the record, one volume

of hearing transcripts and all citations to those transcripts will be cited as follows: "(Hr' g Tr.

(Page Number).)" Any citations to the Appendix of this Brief, if necessary, will be cited as

follows: "(App. Tab # (Tab Number).)"

- I -
 STATEMENT OF THE CASE

Cross-Appellants Mid-South Institute of Self Defense Shooting, Inc. ("Mid-South"), JFS,

LLC ("JFS"), John Fred Shaw ("Shaw"), Donald Ross Sanders, Jr. ("Sanders") and Jim Cowan

("Cowan") (collectively, "Mid-South") rely on the Procedural History and Statement of Facts as

set forth in their combined opening brief.

SUMMARY OF THE ARGUMENT

The Participation Contract and Unconditional and Umestricted Release (the "Participation

Contract") signed by Special Warfare Operator Second Class (SEAL) Shapoor Alexander Ghane,

Jr. ("Ghane") bars all claims against Mid-South, brought individually and for the wrongful death

beneficiaries of Ghane, by Cross-Appellee Narjess Ghane. Cross-Appellee filed a response to

Mid-South's arguments on the Participation Contract that was largely umesponsive to the points

Mid-South initially briefed and argued. A clear example of this is seen in Cross-Appellee's

failure to discuss or distinguish critical cases that support the positions staked out by Mid-South.

Cross-Appellee failed to show an ambiguity within the Participation Contract. She argues

that Ghane never intended to release Mid-South from liability with respect to bullets penetrating

shoot house walls, but the record is devoid of any proof of that assertion. Cross-Appellee takes a

position that is both legally and factually distinguishable. Mississippi law does not require an

exculpatory clause to set out, in precise and exacting detail, each and every situation to which the

release applies. All that is required is that the injury sustained is accounted for in the scope of the

release's language. Ghane signed the Participation Contract and unambiguously released Mid-
,
South for any liability arising from injury or death due to a gunshot wound received during

training on Mid-South's property.

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 Cross-Appellee also incorrectly focuses on inquiries of fact she claims require the matter to

be put before a jury or inquiries that would nullify the terms of the Participation Contract. First,

whether Ghane was an "enrolled student" is neither an area on which Mid-South needed to

submit independent proof, nor is it dispositive of the effectiveness of the exculpatory language.

Ghane himself acknowledged he was an "enrolled student," and whether he came to Mid-South

under military orders does not change that status. Cross-Appellee also failed to show that Mid-

South made any material misrepresentations that would show Mid-South misled Ghane in order

to induce him to sign the Participation Contract, as the record is devoid of any proof that Mid-

South knew the shoot house ballistic walls were insufficient to stop the rounds used by the

SEALs on January 30, 2008. Moreover, Cross-Appellee did not demonstrate that the

Participation Contract was unconscionable.

Finally, Cross-Appellee failed to address a core argument raised by Mid-South, to wit, that

Ghane was fully warned of the dangers of weapons and live fire training by the express terms of

the Participation Contract, and that those terms put Ghane on sufficient warning of those dangers

such that Mid-South cannot be held liable for his death.

STANDARD OF REVIEW

Mid-South relies on the Standard of Review as set forth in the combined opening brief.

,,

. J.
 ARGUMENT

On November 11, 2010, the trial court denied Mid-South's first motion for summary

judgment. That motion asserted that the Participation Contract signed by Ghane released Mid-

South from liability for Ghane' s death due to a gunshot wound sustained during close quarters

combat ("CQC") training. (R. 186-206.) The trial court, after review and consideration, made the

following ruling in favor of Cross-Appellee:

The Court finds one argument has merit if proven: that the decedent did not intend and,
in fact, the "Release" does not sufficiently provide, that [Mid-South was] being
released from liability for walls that [Mid-South] claimed could not be penetrated by
live ammunition being used by the Seals that day that were, in fact penetrated by said
ammunition and Ghane was killed as a result of the alleged mispresentations and
reckless disregard of [Mid-South].

***
The Court fmds there are issues of fact regarding whether [Mid-South was] being
released from liability from walls [Mid-South] claimed could not be penetrated by the
live ammunition being used by the Seals that day, whether those representations were
made, whether the walls were penetrated by said ammunition and Ghane [was] killed
as a result of the alleged misrepresentations and reckless disregard of [Mid-South].

(R. 1164, 1168 (underlining in original).)

Mid-South challenged this decision in its combined opening brief, arguing that Mid-South

had demonstrated that the relevant exculpatory language encompassed the scenario which befell

Ghane, that Mississippi law allowed for the enforcement of this provision, and that other

jurisdictions had enforced similarly worded provisions for other inherently dangerous activities.

(Resp. Br. at 55-63.) Mid-South also demonstrated that the terms of the Participation Contract

fully warned Ghane of the dangers posed by participating in weapons and CQC training and that

Massey v. Tingle, 867 So. 2d 235 (Miss. 2004), abrogated any liability of Mid-South on that

basis. (Jd. at 63-66.)

I

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 Cross-Appellee's response on this cross-issue coutained nothing more than a cutting and

pasting, with virtually no modification, of her prior response brief to Mid-South's original

motion for summary judgment. (Compare Reply Br. at 12-22 with R. 207-17.) Her brief is

almost entirely unresponsive to the points raised by Mid-South's combined opening brief. She

made no attempt, save a discussion of Turnbough v. Ladner, 754 So. 2d 467 (Miss. 1999), to

address any case law discussed by Mid-South. l She instead focused on factual assertions related

to Ghane being a student and purported misrepresentations made to Ghane. However, she has not

submitted any evidence of any such misrepresentation. She included numerous other discussions

that attempt to show that the Participation Contract is unenforceable. Mid-South has already

demonstrated to this Court that no genuine issue of material fact existed under which summary

judgment on the Participation Contract should have been denied, and it will further demonstrate

below why Cross-Appellee has not made any showing sufficient to warrant affirmation of the

trial court's decision.

I) The Participation Contract Unambiguously Encompassed The Risks And Dangers

That Allegedly Caused Ghane's Death

Cross-Appellee offered no compelling response to Mid-South's argument that the

Participation Contract unambiguously released Mid-South from liability due to gunshot wounds

sustained by Ghane during live fire training. There is no specific section in Cross-Appellee's

argument that states the Participation Contract is ambiguous. (Reply Br. at 12-22.) Rather,

Cross-Appellee generally contends that the Participation Contract did not "clearly state that

[Ghane] was waiving his right to recover for the failure of [Mid-South] to have or maintain

1 Cross-Appellee made no attempt to discuss or distinguish three cases Mid-South relied on to show how
exculpatory language in releases had been enforced over inherently dangerous activities, to wit, McCune v. Myrtle
Beach Indoor Shooting Range, Inc., 61Z S.E.Zd 46Z (S.c. Ct. App. ZOOS), Falkner v. Hinckley Parachute Ctr., Inc.,
533 N.E.Zd 941 (Ill. Ct. App. 1989), and Malecha v. St. Croix Valley Skydiving Club, Inc., 392 N,W.Zd 727, 728
(Minn, Ct. App, 1986). (See Reply Br. at IZ-22.)

-5-
 'ballistic' walls of the [shoot] house ... that were capable of preventing ammunition up to .308

caliber from passing through." (Reply Br. at 17.) That approach is incorrect.

Mississippi courts do not require an exculpatory clause to explicitly spell out the exact

scenario being released, so long as that scenario is covered by the scope of the release. See Royer

Homes of Mississippi, Inc. v. Chandeleur Homes, Inc., 857 So. 2d 748, 752-53 (Miss. 2003)

(rejecting the argument that the release did not unambiguously release a legal claim because that

claim was not specifically mentioned in the text of the release); see also Scott v. Gammons, 985

So. 2d 872, 874-76 (Miss. Ct. App. 2008) (found the release at issue barred claims against all

drivers of subject vehicle even though driver was not specifically named). Cross-Appellee, in

response, made no attempt to distinguish Royer Homes or Scott. Turnbough is relied upon by

Cross-Appellee, but careful examination shows Turnbough is distinguishable.

Cross-Appellee block quotes a significant portion of Turnbough and claims it is dispositive.

(Reply Br. at 15-17.) It is not. Turnbough was premised on an affidavit proffered by the plaintiff

of "an expert in water safety and scuba diving" who demonstrated "that the alleged negligent

acts on which [the] claim [was] based could not have been contemplated by the parties." 754 So.

2d at 469. That affidavit discussed, in considerable detail, how the scuba instructor "fell

'woefully short' of minimally acceptable standards of scuba instruction." Id. It was also noted

that the instructor had "superior knowledge" when compared to the plaintiff, who was not

experienced in that type of diving. Id. The Turnbough court found that "[s]urely it cannot be said

, from the language of the agreement that [plaintiff] intended to accept any heightened exposure to

injury caused by the malfeasance of an expert instructor." Id. at 470.

Unlike the Turnbough plaintiff, who put evidence forward to advance the case, Cross-

Appellee has yet to proffer any expert opinions showing Mid-South breached any standard of

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care. As has been shown, Mississippi does not have a standard for ballistic shoot house walls.

Mid-South was never made aware by Naval Special Warfare Command ("NSWC") or the

SEALs of the shoot house ballistic wall design criteria in Military Handbook 1027/3B. Military

Handbook 1027/3B did not contain a ballistic wall standard for 5.56 mm "green tip" rounds.

Moreover, the SEALs approved Mid-South's design and used that shoot house for over six years

prior to Ghane's death. (See Resp. Br. at 4-7, 14-15.) Cross-Appellee had two years to pursue

discovery in this case and she only took two depositions, those of Sanders and Shaw. (R. 1479-

2217.) She never deposed any NSWC or Navy personnel, or, more to the point, any experts for

that matter, who could discuss the standards applicable with respect to shoot house ballistic

walls. There is simply no admissible evidence whatsoever in the record that Mid-South breached

a standard of care regarding the design or construction of the shoot house ballistic walls.

Likewise, contra Turnbough, Ghane was not inexperienced at the training exercise that led

to his death. Turnbough turned, in part, on the superior knowledge of the instructor in scuba

diving and equipment when compared with the experience level of the student plaintiff. 754 So.

2d at 468-69. Mid-South was not in a position of superior knowledge relative to Ghane. Mid-

South's personnel never ran SEAL training sessions in the shoot house. (R. 1517-19, 1943-45,

2135.) Further, Ghane had reached the pinnacle of the Special Operations community as a

SEAL. Operators like Ghane have undergone extensive training in weapons and tactics,

including operating in and around shoot houses as part of their regimen. Ghane was well-versed

in ammunition and its capabilities. He was an elite Special Operations soldier who had superior

knowledge of the risks associated with CQC training. Further, all of the evidence available

shows that SEALs regularly and continuously engaged in CQC training in shoot houses across

the United States with live ammunition. The record is replete with examples, discussed in Mid-

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South's opening briefs statement of facts, that SEALs knew their training scenarios often

included shooting at a "hostile" target on the opposite side of a wall where SEALs were

"stacked," a tactic that was highly controversial due to the safety risks it posed. (R. 476, 876,

887, 1601-02.) The record also showed that SEAL Team Five trained in the shoot houses at Mid-

South three months before the January 2008 training evolution. (R. 476, 2016.) By the very

nature of his chosen occupation, Ghane must have had a strong appreciation for the dangers that

came with placing himself in a shoot house environment and engaging in CQC training, as well

as the inherent dangers associated with being a SEAL.

Moreover, Cross-Appellee's position that Ghane never intended to waive liability with

respect to a round piercing a shoot house wall is based on supposition and speculation. She asks

this Court to assume what Ghane would or would not have done. Assumptions are not evidence.

Cf Borne v. Dunlop Tire Corp., Inc., 12 So. 3d 565, 570 (Miss. Ct. App. 2009) ("[T]o survive

summary judgment, the party opposing the motion must 'rebut by producing significant

probative evidence showing that there are indeed genuine issues for trial.'" (quoting Price v.

Purdue Pharma Co., 920 So. 2d 479, 485 (Miss. 2006». Cross-Appellee had years to develop

evidence that addressed her position with respect to the Participation Contract; she took no

depositions of any persons who could speak to the mindset of a SEAL when executing that

document. She has put no evidence in the record to sustain her position.

But this Court need not go that far to decide in favor of Mid-South. Intention in this case

can easily be discerned in the Participation Contract. "In a summary judgment case ... the Court

should determine only whether the contract is ambiguous." Epperson v. SOUTHBank, 93 So. 3d

10, 17 (Miss. 2012). "Questions of contract construction and ambiguity are 'questions of law that

are committed to the court rather than questions of fact committed to the fact finder. '" Id.

-8-
(quoting Royer Homes, 857 So. 2d at 752-53). "If the contract is unambiguous, 'the intention of

the contracting parties should be gleaned solely from the wording of the contract' and parole

evidence should not be considered." Epperson, 93 So. 3d at 16 (quoting Turner v. Terry, 799 So.

2d 25, 32 (Miss. 2001)).

The Participation Contract's scope was clear and unambiguous:

I, Shapoor Ghane, by my signature below, having been fully advised of the

consequence of so doing, hereby release Mid-South Institute of Self-Defense Shooting,
Inc., all of its owners, officers, agents, employees and any other persons acting for or
on behalf of it (hereinafter collectively "Mid South") from any and all liability to me,
my heirs, my successors . .. for any injury to my person or loss of personal or real
property or my death resulting in any way . .. from my enrollment as a student or from
any training or instruction I might receive . .. or otherwise provided by Mid-South to
teach me the use of firearms and other weapons and the techniques of hand-to-hand
and/or any other type of combat.

***
I hereby acknowledge that the training and instruction which I seek from Mid-South
very well may expose me to extraordinary danger and could cause me to suffer injury
or accidental death because of the negligent or intended acts of me or some other
person (including fellow students or instructors) and that I am freely and voluntarily
placing myself in this position of danger because I personally deem this to be
necessary in order for me to obtain the training and instruction which I seek for my
own personal best interest.

***
I also acknowledge that the instruction and training I seek from Mid-South involves the
use of firearms (which are known to me to be inherently dangerous and able to cause
serious injury to person and property and/or death if mechanically unsafe or used
unsafely) and that the training and instruction I seek, by its nature, is extraordinarily
hazardous; knowing these things, the training and instruction is so important to me, in
performing the lawful duties I am required to perform in my line of work, that I am
willing to take full responsibility for my own safety and welfare and assume all of the
risk attendant in exchange for being provided the stated instruction and training by
Mid-South and to absolve, in advance, Mid-South of any and all such responsibility
and risk; fmally, I acknowledge that I am executing this release freely and voluntarily
and am under no compulsion from Mid-South or any other person or entity to execute
it.

- 9-
(R. 35-39 (emphases added).) This language unambiguously advises Ghane of the risks of

engaging in weapons and CQC training on Mid-South's property, and the fact that he could

suffer injury or death from a gunshot wound. (ld.) It acknowledges that a bullet that could wound

or kill him might come from the gun of a fellow SEAL. (ld.) The fact that ballistic shoot house

walls are not specifically mentioned does not mean the release is ambiguous. Cross-Appellee's

entire claim is based on an allegation that a bullet fIred by a fellow SEAL struck Ghane after it

penetrated a wall. Because the scope of the Participation Contract clearly governs situations

involving those unfortunate "friendly fire" incidents, the trial court erred in fInding to the

contrary and Cross-Appellee's claims are barred.

IT) Cross-Appellee's Other Arguments Against The Participation Contract Are

Unavailing

Cross-Appellee also raises several additional arguments against the Participation Contract.

None of these arguments are legally sufficient to overcome the unambiguous release of liability.

A) Ghane Was An Emolled Student At Mid-South

Cross-Appellee argues, incorrectly, that Cross-Appellants provided no proof that Ghane was

a student at Mid-South. (Reply Br. at 12-14.) Not only is this argument a "red herring" and

completely irrelevant to the application of the Participation Contract here, this argument forgets

that the interpretation of a contract involves the four corners of the document without

consideration of parol evidence when the agreement in unambiguous. Epperson, 93 So. 3d at 16.

It also strains to create an issue of fact where none exists.

All the proof that is needed is found in the Participation Contract. There is no dispute with

respect to Ghane's status when he was on the property at Mid-South: he was a student.

Mississippi law clearly speaks to the effect of the Participation Contract:

Under Mississippi law ... parties to a contract have an inherent duty to read the terms
of a contract prior to signing; that is, a party may neither neglect to become familiar

- 10-
 with the terms and conditions and then later complain of lack of knowledge, nor avoid
a written contract merely because he or she failed to read it or have someone else read
and explain it.

MS Credit Ctr., Inc. v. Horton, 926 So. 2d 167, 177 (Miss. 2006) (citing Titan Indem. Co. v. City

of Brandon, 27 F. Supp. 2d 693, 697 (S.D. Miss. 1997)). Ghane admitted he was a student:

In providing this unrestricted ... and unconditional release, I acknowledge that I have
no right to be on the premises of Mid-South or to participate as a student at Mid-South,
on or off the premises, and, except for the permission granted to me by Mid-South to
be on the premises of Mid-South or to participate as a student at or of Mid-South, I
would be on the Mid-South premises as a trespasser or interfering with Mid-South
classes as an interloper.

(R. 35.) The Participation Contract uses the word "student" some ten times. (R. 35-39.) It also

repeatedly refers to the "training and instruction" Ghane would receive while on the premises at

Mid-South. (Id.) Ghane initialed each of these paragraphs and signed the Participation Contract

at the end. (Id.)

Cross-Appellee unavailingly asks this Court to ignore this evidence by claiming that signing

the Participation Contract was "not the customary method by which Mid-South enrolled students

.... " (R. 13.) Cross-Appellee does not state what the customary method is and makes no citation

to the record to support her bald assertion. The record belies her claim because NSWC

acknowledged that every SEAL who came onto Mid-South's premises for training, even at the

behest of the Navy, signed the Participation Contract. (R. 226.)

Likewise, the fact that Ghane came to Mid-South to train as part of his job does not negate

the Participation Contract's terms. Cross-Appellee asserts that Ghane was essentially placed

between a rock and a hard place because he was present at Mid-South under orders, and he could

not fulfill those orders unless he signed the Participation Contract. 2 (Reply at 13-14.) This

2 Ironically, Cross-Appellee now argues that the Navy's control over Ghane was so comprehensive and pervasive
that it overrode his personal freedom to not sign the Participation Contract, yet Cross-Appellee has argued that, with
respect to the political question doctrine issue, the control of the Navy was not so inextricably intertwined that a trial

- 11 -
argument seems to imply that Ghane would not have signed the Participation Contract but for his

orders to be at Mid-South. Again, Cross-Appellee has not cited this Court to any proof in the

record to support her assertion.

Moreover, the fact that Ghane came to Mid-South under orders does not mean he was not a

student. Cross-Appellee's argument is essentially that Ghane was not a student because he was

not a voluntary participant. This is akin to arguing that an attorney participating in a continuing

education course in order to keep his or her license is not a student at that course. Such an

argument would not be accepted in that situation and Cross-Appellee's argument should not be

accepted here.

B) Cross-Appellee Has Not Demonstrated Any Misrepresentations Sufficient To

Negate The Terms Of The Participation Contract

Cross-Appellee also claims that Mid-South made "material misrepresentations" to Ghane

about the ballistic capabilities of the shoot house walls in order to get him to sign the

Participation Contract. (Reply Br. at 20-21.) Without saying so, Cross-Appellee appears to be

arguing a question of contract formation and whether Ghane was improperly induced to sign.

"As a contract defense, '[t]raud in the inducement arises when a party to a contract makes a

fraudulent misrepresentation, i.e., by asserting information he knows to be untrue, for the

purpose of inducing the innocent party to enter into a contract. '" Covenant Health & Rehab. of

Picayune, LP v. Lumpkin ex reI. Lumpkin, 23 So. 3d 1092, 1098 (Miss. Ct. App. 2009) quoting

(Lacy v. Morrison, 906 So. 2d 126, 129 (Miss. Ct. App. 2004».

court could come to a judicial resolution. See Baker v. Carr, 369 U.S. 186,211-12,217 (1962). Cross-Appellee
cannot have it both ways because, with respect to the political question doctrine, the trial court must "look beyond
the complaint, considering how the [Cross-Appellee] might prove [her] claims and how [Mid-South] would defend."
Lane v. Halliburton, 529 F.3d 548, 565 (5th Cir. 2008). If Cross-Appellee holds to her position with respect to
Ohane being forced to sign the Participation Contract by the Navy, then it is all the more proof of the pervasive
presence of military-related questions that cannot be judicially resolved.

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 There is no proof in the record that Mid-South made any representation whatsoever to

Ghane. 3 Mid-South's website and brochure stated that its shoot house ballistic walls were ".308

capable." (R. 1985-88.) A .308-caliber round is not the same as a 5.56 mm round, or even the

same as a 5.56 mm "green tip" round. (R. 1544-45.) Shaw testified that Mid-South never

advertised that 5.56 mm "green tip" rounds could be used in the shoot houses. 4 (R. 1545.)

Regardless, Sanders testified that the SEALs were never given a copy of Mid-South's brochure.

(R. 1449.) The record contains no proof that Ghane ever visited Mid-South's website or spoke

with Mid-South representatives about the ballistic capabilities of the shoot house ballistic walls.

Cross-Appellee did not take any depositions of NSWC or SEAL personnel to inquire about any

representations that were made about the shoot house walls.

Second, even if Mid-South made a representation to the SEALs andlor Ghane on the

ballistic capabilities of the shoot house walls, the record contains no evidence that Mid-South

knowingly made a false statement about those capabilities. Mid-South tested its ballistic wall

configuration by shooting, at close range, one hundred fifty 5.56 mm "green tip" and fifteen

.308-caliber rounds; no rounds penetrated. (R. 1545-46, 1960-62, 1986-88, 2002-03, 2118-20.)

There is no proof that Mid-South was aware of a defect in the shoot house walls and that it

concealed such information from Ghane.

Cross-Appellee also relies on Whitehead v. Johnson, 797 So. 2d 317 (Miss. 2001), to argue

that summary judgment was improper. (Reply Br. at 18.) Whitehead involved an automobile

, accident where the plaintiff was rear-ended by the defendant's employee and sustained personal

3 Cross-Appellee also claims that the Navy relied on Mid-South's "misrepresentations" that the shoot house ballistic
walls would prevent the "green tip" rounds from penetrating and this vitiates the Participation Contract's language.
(Reply Br. at 19-20.) The Navy is not a party to this cause of action and Cross-Appellee does not stand in the Navy's
shoes to make such a claim.
4 The undisputed testimony also showed that this was the first time the SEALs had used 5.56 mm "green tip" rounds
in the shoot house and that the SEALs, and the SEALs alone. controlled ammunition selection in the shoot house.
(R. 1529, 1547-48, 1577, 1893-97, 1903, 1909, 1975-77,2138.)

- 13 -
injuries and damage to her vehicle. 797 So. 2d at 319. After paying the property damage claim,

the defendant's claims agent asked the plaintiff to sign a release. [d. The plaintiff said that the

agent represented to her the release applied only to the property damage claims and not the

personal injury claims. See id. She later signed an affidavit stating that position. [d. at 324. The

plaintiff later sought reimbursement for medical expenses and the defendant denied the claim

because the release barred all further claims. [d. at 319. When the defendant, during litigation,

moved for summary judgment on the release, the plaintiff produced her affidavit. [d. at 320, 324.

The Mississippi Supreme Court found that the affidavit created a question of fact on whether

"the release was procured by fraud or misrepresentation." [d. at 324.

This matter is not similarly situated; Whitehead offers no viable support. Whitehead

involved a sworn statement from someone with knowledge of the contract at issue who stated

that the written agreement was different that what was orally represented. Cross-Appellee only

asserts the Participation Contract was something different; she points to nothing in the record to

back this claim. She again relies on assumptions with respect to Ghane's state of mind and/or

intentions and asserts it would be preposterous to assume Ghane would have voluntarily

executed a release in order to train. Cross-Appellee makes this claim after having years to

develop some modicum of proof that Ghane believed he was executing an agreement that said

one thing but actually said another. Cross-Appellee did not do that and has provided no

admissible evidence to sustain her position. Assumptions do not overcome the clear language of

the Participation Contract. Here, the record shows the Participation Contract is nothing other

than what its clear language purports to be: a full release of liability for injuries or death arising

from a gunshot wound received during training.

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 C) The Participation Contract Is Not Unconscionable

Cross-Appellee also posits that the Participation Contract "may be considered

unconscionable under the circumstances." (Reply Br. at 18-19 (emphasis added).) An

unconscionable contract is one that "no man in his senses and not under a delusion would make

on the one hand. and as no honest and fair man would accept on the other." Terre Haute

Cooperage v. Bransome. 35 So. 2d 537. 541 (Miss. 1948). "Mississippi courts have recognized

two types of unconscionability. procedural and substantive." Trinity Mission of Clinton. LLC v.

Barber. 988 So. 2d 910. 920 (Miss. Ct. App. 2007) (citing Vicksburg Partners. L.P. v. Stephens.

911 So. 2d 507. 517 (Miss. 2005». The fact that a contract may be unconscionable is not the

same as that contract being unconscionable. Cross-Appellee has the burden of putting forth

evidence showing the Participation Contract is unconscionable in order to avoid the agreement's

ramifications. See Entergy Mississippi. Inc. v. Burdette Gin Co .• 726 So. 2d 1202. 1207 (Miss.

1998).

That burden has not been met. There is no proof of procedural unconscionability. which

looks "beyond the substantive terms which specifically define a contract and focuses on the

circumstances surrounding a contract's formation." Trinity Mission. 988 So. 2d at 920 (quoting

Stephens. 911 So. 2d at 517). One demonstrates procedural unconscionability "by showing 'a

lack of knowledge. lack of voluntariness. inconspicuous print. the use of complex legalistic

language. disparity in sophistication or bargaining power of the parties and/or a lack of

opportunity to study the contract and inquire about the contract terms ...• Id. (quoting East Ford.

Inc. v. Taylor. 826 So. 2d 709. 714 (Miss. 2002». The record shows that Ghane read and

initialed each and every paragraph in the Participation Contract. (R. 35-39.) There is no hidden

language and the terms are straightforward and clear. (Id.) All Cross-Appellee has provided this

Court is protestations of disbelief that Ghane would even consider signing such a Participation

- 15 -
Contract of his own free will. Those protestations are not proof of a lack of voluntariness or

disproportionate bargaining power.

Cross-Appellee has also not demonstrated substantive unconscionability, which restrains its

analysis to the terms of the Participation Contract to ascertain if those terms are oppressive. East

Ford, 826 So. 2d at 714. "Courts have held agreements to be substantively unconscionable where

they are 'one-sided [and] one party is deprived of all the benefits of the agreement or left without

a remedy for [the other] party's nonperformance or breach, a large disparity between cost and

price or a price far in excess of that prevailing in the market price [exists], or [the] terms bear no

reasonable relationship to business risks assumed by the parties.'" MS Credit Ctr., 926 So. 2d at

177 (quoting Bank of Indiana, Nat'l Ass'n v. Holyfield, 476 F. Supp. 104, 110 (S.D. Miss.

1979)); see Covenant Health & Rehab. of Picayune, LP v. Estate of Moulds ex rei. Braddock, 14

So. 3d 695, 699-700 (Miss. 2009). Again, Cross-Appellee has not shown proof to demonstrate

this form of unconscionability. The Participation Contract addresses weapons training and

injuries or death that could arise during that training. (R. 35-39.) Mid-South provides weapons

training and the shoot houses for the SEALs to train in with live ammunition. (R. 12-13, 25,

1953-54.) That agreement is related to the training SEALs receive and obtain at Mid-South. (R.

35-39.) Cross-Appellee claims that unconscionability arises due to the fact that NSWC

contracted with Mid-South to use the shoot houses, but this does not demonstrate why it is

unconscionable for Mid-South to ask the SEALs to sign a release before performing CQC

training, solely under the command and control of the Navy, on Mid-South's property.

III) Massey v. Tingle Is Once Again Ignored

As in their original response in opposition to Cross-Appellants' motion for summary

judgment, Cross-Appellee ignores Massey and puts forward no opposition to Mid-South's

argument that Ghane was sufficiently warned of the inherent dangers of live-fire weapons and

- 16-
 CQC training by the express terms of the Participation Contract. Massey found a duty was not

owed, and a party could not be held liable, when the "document [the signatory] executed gave

sufficient warnings of the possible danger presented ... and [the signatory] is charged with

knowledge of those warnings." 867 So. 2d at 240. As Mid-South has argued, Massey remains

and is an alternative ground for dismissing Cross-Appellee's claims based on the clear,

unambiguous warning language within the Participation Contract.

CONCLUSION

Cross-Appellee had two years to develop the proof needed to support her claims and her

assertions against the enforcement of the Participation Contract. She took no depositions other

than those of Shaw and Sanders. The record is devoid of any evidentiary proof that backs the

conjecture Cross-Appellee asks this Court to accept.

"'An instrument that is clear, definite, explicit, harmonious in all its provisions, and is free

from ambiguity' will be enforced." Zumwalt v. Jones County Bd. of Supervisors, 19 So. 3d 672,

685 (Miss. 2009) (quoting Pursue Energy Corp. v. Perkins, 558 So. 2d 349, 352 (Miss. 1990)).

The trial court erred in finding that fact questions existed when the clear language of the

Participation Contract unambiguously released Mid-South for liability arising from gunshot

wounds sustained during weapons and CQC training exercises on Mid-South's property. For the

aforementioned reasons, in conjunction with those addressed in Mid-South's initial brief on this

cross-issue, the decision of the trial court with respect to the Participation Contract should be

REVERSED and summary judgment should be GRANTED to Mid-South .

•

- 17 -
 AN,
317 Heritage Drive, Suite 3
Oxford, Mississippi 38655
Phone: (662) 236-7705
Fax: (662) 236-7706
jay.atkins@Ieitnerfirrn.com

Thomas P. Cassidy, Jr., MS

Jeffrey E. Nicoson, TN Bar
(admitted pro hac vice)
LEITNER, WILLIAMS, DOOLEY
& NAPOLITAN, PLLC
80 Monroe Avenue, Suite 800
Memphis, Tennessee 38103
Phone: (901) 527-0214
Fax: (901) 527-8224
tom.cassidy@Ieitnerfmn.com
jeff.nicoson@Ieitnerfirrn.com

Robert Q. Whitwell, MS Bar_ _

FARESE, FARESE, AND FARESE
122 Church Street
P.O. Box 98
Ashland, MS 38603
Phone: (662) 224-6211
Fax: (662) 224-3229
bob@fareselaw.com
Counsel for Appellees/Cross-
Appellants

..
•

[02688282.DOC) - 18 -
 CERTIFICATE OF SERVICE

I, the undersigned attorney, do hereby certify that the foregoing document has been
served upon all counsel in this cause by via electronic notification, or by placing a true and
correct copy of same in the United States mail, postage prepaid, in a properly addressed
envelope, or by hand delivering same to each such attorney as follows:

One COPY. Via Us. Mail

(J) Original and Three (3) Copies Via FedEx
Benjamin 1. Taylor Kathy Gillis
TAYLOR JONES TAYLOR Supreme Court of Mississippi
133 E. Commerce Street 450 High Street
P.O. Box 595 Jackson, Mississippi 39201-1082
Hernando, MS 38632 Phone: (601) 359-3694
Phone: (662) 449-4050
Counsel for Appellant/Cross-Appellee

One (J) COPY. Via Us. Mail

The Hon. Robert P. Chamberlain
DeSoto County Courthouse
2535 Highway 51 South
Hernando, Mississippi 38632-8182

This the2~# day of April, 2013. ~

(02688282.DOC} - 19 -