author: RANDOLPH, Justice, GRAVES, Justice,

text:
    Freddie L. DAVIS and Jeanette Davis v. ATTORNEY GENERAL of the State of Mississippi and Executive Director of the Department of Finance and Administration.
    No. 2004-SA-02418-SCT.
    Supreme Court of Mississippi.
    May 11, 2006.
    Rehearing Denied Aug. 24, 2006.

      A.N. Castilla, John Floyd Fletcher, Cory Randle Lancaster, Jackson, attorneys for appellants.
    Ashley May, Romaine Levean Richards, Gary Wood Stringer, Jackson, attorneys for appellees.
    Before SMITH, C.J., CARLSON and RANDOLPH, JJ.
   RANDOLPH, Justice,

for the Court.

¶ 1. On June 1, 1999, the Mississippi State Tax Commission (“Tax Commission”) assessed Freddie L. Davis and Jeanette Davis (“Appellants”) with additional income tax, penalties and interest for the tax years 1990 through 1995. On April 4, 2000, in accord with Appellants’ request under Miss.Code Ann. Section 27-7-71(1), the Board of Review considered and entered an Order substantially upholding the initial assessment. On July 12, 2000, pursuant to Appellants’ request under Section 27-7-71(2), the Tax Commission considered and substantially upheld the initial assessment by Order of August 2, 2000. On March 30, 2001, Appellants received the Order and had thirty (30) days to pay the assessment or file a petition and bond in the chancery court. On May 11, 2001, Appellants fully paid the assessment to the Tax Commission with an accompanying letter stating they were not appealing its final Order. Over two years later, on August 22, 2003, Appellants filed a refund claim with the Department of Finance and Administration (“DFA”) under Section 27-73-1. On November 13, 2003, an Opinion of the Attorney General denied the refund request. On December 3, 2003, the DFA denied the refund request based on the Opinion of the Attorney General. On February 19, 2004, Appellants filed a Complaint for Appeal and Review and/or Refund of Erroneously Paid Taxes in the Chancery Court of the First Judicial District of Hinds County, Mississippi. The chancery court thereafter granted summary judgment in favor of the Attorney General of the State of Mississippi and the Executive Director of the Department of Finance and Administration (“Appellees”), who had filed a Motion to Dismiss the Complaint for Appeal and Review and/or Refund of Erroneously Paid Taxes filed by Appellants. The disposition was in the form of- an Order Granting Motion For Summary Judgment on October 21, 2004. Thereafter, Appellants filed notice of appeal seeking reversal of the chancery court’s judgment.

FACTS

¶ 2. On June 1, 1999, the Tax Commission assessed Appellants with additional income tax, penalties and interest totaling $160,722.00 for the tax years 1990 through 1995. On April 4, 2000, pursuant to the Appellants request under Miss.Code Ann. Section 27-7-71(1), the Board of Review held a hearing and issued an Order substantially upholding the initial assessment. From that Order, and pursuant to the Appellants request under Section 27-7-71(2), the Tax Commission held a hearing on July 12, 2000. On August 2, 2000, the Tax Commission issued an Order substantially upholding the initial assessment. Additionally, the Tax Commission ordered the assessment be paid, or a petition and bond be filed in the chancery court, within thirty (30) days of receipt of the Order by the Appellants. On March 80, 2001, the Appellants received the Order of the Tax Commission, without explanation by either party for the delay. Appellants failed to secure the appeal bond required by Miss. Code Ann. Section 27-7-73 On May 11, 2001, the Appellants submitted full payment for the assessment. Along with their payment, Appellants presented a letter to the Tax Commission stating that they were not appealing its final Order.

¶ 3. Over two years later, on August 22, 2003, the Appellants filed a refund claim with the DFA pursuant to the procedures outlined in Miss.Code Ann. Section 27-73-1. That refund claim was rejected by the DFA on August 22, 2003, but their recommendation was not passed on to the Attorney General for review, as required by Section 27-73-1. On September 13, 2003, the Appellants requested compliance with Section 27-73-1 by the DFA. Soon thereafter, the DFA recommendation was forwarded to the Attorney General. On November 13, 2003, an Opinion of the Attorney General was issued recommending denial of the refund request. The Attorney General found that a claim for refund under Section 27-73-1 was barred once the administrative appeals processes of Section 27-7-71 and Section 27-7-73 were utilized by a taxpayer. Under Section 27-7-73, the Appellants had thirty (30) days from receipt of the Tax Commission Order to appeal to the chancery court. Because the Appellants did not perfect such an appeal, the Attorney General determined that “let[ting] the Davis’ now bring a refund action after completing the hearing process of § 27-7-71 would deprive § 27-7-73 of any operative force.” Therefore, the Attorney General found that res judicata applied to the administrative determination. On December 3, 2003, the DFA again denied Appellants refund request based on the Opinion of the Attorney General.

¶ 4. On February 19, 2004, and within six months of the Attorney General’s determination, the Appellants filed a Complaint for Appeal and Review and/or Refund of Erroneously Paid Taxes in the Chancery Court of the First Judicial District of Hinds County, Mississippi. On March 22, 2004, the Appellees filed a Motion to Dismiss arguing that “[tjhere is no statutory authority for this action by Plaintiffs where the taxpayers did not file an appeal under § 27-7-73 but paid the income tax as affirmed by the Commission then sued the Defendants ... for a money judgment in the amount of the income tax paid.” In other words, a paid income tax assessment where the taxpayer does not appeal the Commission’s determination that the taxes are due does not fit within Section 27-73-1. Because the Appellant’s Complaint was not filed within thirty (30) days with the required bond, Appellees asserted the Complaint was barred as untimely. Assuming arguendo that Appellants could bring their action under Section 27-78-1, Appellees contend that such an action would be untimely and barred under the applicable statute of limitations in Miss.Code Ann. Section 27-73-5. On April 27, 2004, Appellants filed their response to the Motion to Dismiss asserting that the plain language of Section 27-73-1 establishes that the section applies to payment “through error or otherwise ... [of] any tax in excess of the sum properly due ... [if] such erroneous payment or overpayment has been paid into the proper treasury,” and is an “additional and supplemental method for refunding overpaid, or erroneously paid, taxes. Moreover, as the Commission’s tax assessment was not rendered until June 1, 1999, Appellants argued it would be patently unfair to impose Section 27-73-5 because that statute of limitations would have expired prior to the assessment itself.

¶ 5. On October 19, 2004, the chancellor issued an Order Granting Motion For Summary Judgment. The chancellor determined that the Appellants were not entitled to judicial review because they had failed to seek review within thirty (30) days of the Tax Commission’s Order, as required by Section 27-7-73. That failure to appeal rendered the Tax Commission’s Order final and unreviewable under the doctrines of res judicata and collateral es-toppel. Because the taxes were affirmed by the final Order of the Tax Commission, the chancellor found he was “without authority to review the findings of [the Tax Commission] or to find the assessment to be erroneous.” Therefore, the chancellor concluded there were no genuine issues of material fact, and his final judgment was filed on November 3, 2004. From that judgment, Appellants filed their notice of appeal.

STANDARD OF REVIEW

¶ 6. This Court reviews summary judgments de novo. See Hardy v. Brock, 826 So.2d 71, 74 (Miss.2002). The facts are to be viewed in the light most favorable to the non-moving party. Id. “If [the appellate court’s] examination indicates that there is no genuine issue of material fact, the moving party is entitled to judgment as a matter of law.” Id. (quoting Robinson v. Singing River Hosp. Sys., 732 So.2d 204, 207 (Miss.1999)). The existence of any genuine issue of material fact, however, precludes summary judgment. Id. In reaching that conclusion, the non-moving party may not simply rest upon allegations or denials in the pleadings but must set forth specific facts establishing the existence of genuine issues. Id.

ANALYSIS

¶ 7. On appeal, the Appellants raise four issues:

(1)Whether Appellants failed to exhaust all administrative remedies required by Miss.Code Ann. Section 27-7-71, which governs administrative appeals for taxpayers.
(2)Whether the chancellor erred in concluding that the refund procedures set forth in Miss.Code Ann. Section 27-73-1 were not a viable alternative to the more commonly utilized judicial appeal procedures contained in Miss.Code Ann. Section 27-7-73.
(3)Whether Miss.Code Ann. Section 27-7-73 is unconstitutional and whether the chancellor erred in relying exclusively on it as the legal basis for a ruling that Appellants were barred from seeking a refund of overpaid taxes pursuant to Miss.Code Ann. Section 27-73-1.
(4)Because the circumstances surrounding a letter written by Appellants remains unresolved and the Court failed to consider the financial condition of Appellants, whether genuine issues of material fact exist which should have precluded the chancellor’s grant of summary judgment.

This Court will analyze each issue in turn and, if any genuine issue of material fact exists, will reverse and remand the final judgment of the chancellor.

I. Whether Appellants failed to exhaust all administrative remedies required by Miss.Code Ann. Section 27-7-71.

¶ 8. Our holding in Davis v. Barr, 250 Miss. 54, 157 So.2d 505, 508 (1963), requires individuals to “exhaust their administrative remedies before resorting to court.” With respect to tax issues,

failure on the part of one seeking an abatement of his tax assessment to invoke an available administrative remedy, or, if invoked, to pursue the possible administrative appeals to exhaustion, prevents entirely, or in some way limits, his obtaining any relief from the courts with respect to the amount or the legality of the challenged assessment.

Id. (quoting 51 Am.Jur., Section 769, p. 698). In Davis, the Appellants not only failed to appeal to the State Tax Commission, but also neglected to post the required bond with their petition in chancery court. Id. at 509 (the applicable statute was Section 9220-31, Code 1942, the predecessor to Section 27-7-73). This Court held that “the Tax Commission had exclusive jurisdiction of the income tax assessment due by appellants, and before appellants could invoke the aid of an equity court, it was necessary for them to have first proceeded by the method and through the channel provided by law before the Tax Commission.” Id. at 510.

¶ 9. Appellants contend the chancellor erred in finding they had failed to fully exhaust all administrative remedies. Appellants assert that they passed through all the administrative steps required under Section 27-7-71. First, they initiated an appeal to the Tax Commission Review Board within thirty (30) days of the contested action, as required by Section 27-7-71(1). Unsatisfied with the Order of the Review Board, they initiated an appeal to the full Tax Commission within thirty (30) days of the Review Board Order, as required by Section 27-7-71(2). They assert that following the full Tax Commission Order, all further appeals (i.e. the utilization of Section 27-7-73) are judicial in nature. As such, they argue that they exhausted all administrative remedies through their appeals initiated under Section 27-7-71.

¶ 10. The plain language of Section 27-7-71 states:

[a]ny tax deficiency, including any penalty and interest, determined by the state tax commission shall be paid within thirty days from the date of notification of the taxpayer, and if said sum is not paid within said thirty-day period, the state tax commission shall proceed to collect same under the provisions of Sections 27-7-55 to 27-7-67; provided within said thirty-day period the taxpayer may appeal from the decision of the state tax commission as hereinafter set out [in Section 27-7-73].

Miss.Code Ann. § 27-7-71 (emphasis added). Upon exhausting the remedies provided under Section 27-7-71, an appeal to the chancery court must be perfected within thirty (30) days of receipt of the Tax Commission findings, as outlined in Section 27-7-73. When the Appellants accepted the Tax Commission determination and paid the tax, the Tax Commission findings became final under Section 27-7-73. Appellants had the option, -within thirty (30) days of receiving notification of the Tax Commission determination, of paying the tax or appealing under Section 27-7-73. Under Section 27-7-73, the Tax Commission findings are “final” unless the taxpayer files a petition in chancery court “requesting a hearing of the case on its merits” accompanied by a bond “in a sum double the amount in controversy.” Miss.Code Ann. § 27-7-73. Assuming ar-guendo that Appellants had exhausted all administrative remedies available under Section 27-7-71, the chancellor’s determination that the remedy provided by Section 27-7-73 was not utilized remains unaltered. Because Appellants affirmatively accepted the Tax Commission ruling and paid the tax instead of appealing to the chancery court, this Court finds the Tax Commission ruling became the final adjudication.

II. Whether the chancellor erred in concluding the refund procedures in Miss.Code Ann. Section 27-73-1 were not a viable alternative to the appeal procedures contained in Miss.Code Ann. Section 27-7-73.

¶ 11. Appellants contend the chancellor erroneously concluded that Section 27-73-1 was not a viable alternative to Section 27-7-73. Section 27-7-73 permits a taxpayer to seek judicial review of the Tax Commission’s Order without first paying the contested taxes, if the taxpayer appeals within thirty (30) days of receiving the Tax Commission Order and provides an appeal bond equal to two times the amount in controversy. Conversely, Section 27-73-1 is available when the taxpayer first pays the contested taxes, avoiding potential penalties and interest if incorrect in his assertions, and then seeks administrative review for a refund of taxes paid through error or otherwise if (and only if) such payment was in error or an overpayment. Appellants argue that if Section 27-7-73 is the only available statutory means for obtaining judicial review of the decisions of the Tax Commission, then it unconstitutionally bars these and similarly situated taxpayers from having access to the courts solely by virtue of the fact that their financial condition did not enable them to obtain and post the appeal bond required by Section 27-7-73.

¶ 12. Appellants rely on State ex rel. Rice, 22 So.2d at 373, and Barnett, 21 So.2d at 6, to support the proposition that Section 27-73-1 applies to the refund of income taxes. This statute creates a right and not merely a remedy. See Miss. Cent. R. Co., 141 So. at 897. Appellants assert that they had the option of either avoiding paying the contested tax by posting an appeal bond within thirty (30) days of the Tax Commission’s determination under Section 27-7-73 or paying the contested tax and seeking a refund under Section 27-73-1. As such, Appellants assert that because Section 27-7-73 was not the only statutory method available, the Tax Commission’s Order would only become final and unreviewable upon the expiration of the three-year statute of limitations applicable to Section 27-73-1.

¶ 13. Appellees counter that the Appellants knowingly paid the income tax assessment after the Tax Commission Order affirmed the assessment. Moreover, Section 27-7-73 provides that the Tax Commission findings are final unless the taxpayer, within thirty (30) days of receipt of the Order, files a petition and bond in chancery court requesting a hearing on the merits. Because Appellants waited nearly thirty-four (34) months before filing their Complaint, Appellees contend their suit is barred under the doctrines of res judicata and collateral estoppel.

¶ 14. “The doctrine of res judi-cata reflects the refusal of the law to tolerate a multiplicity of litigation.” Little v. V. & G Welding Supply, Inc., 704 So.2d 1336, 1337 (Miss.1997). See also Holliday, 149 So.2d at 527 (“The common law doctrine of res judicata, including ... collateral estop-pel, is designed to prevent relitigation by the same parties of the same claims or issues.”). These judicial estoppel doctrines “ba[r] all issues that might have been (or could have been) raised and decided in the initial suit, plus all issues that were actually decided in the first cause of action.” Little, 704 So.2d at 1337-38. See also Holliday, 149 So.2d at 528 (“A judgment bars a subsequent application for the same purpose where the facts upon which it is based are not changed and the conditions are substantially similar.”).

¶ 15. “Under Mississippi law, res judicata or collateral estoppel precludes relitigation of administrative decisions.” Smith, 797 So.2d at 963 (involving a terminated state employee who failed to appeal the dismissal decision of the Personnel Action Review Board to the circuit court by writ of certiorari as mandated by Miss. Code Ann. Sections 11-51-93 and-95). See also Zimmerman, 747 So.2d at 861 (involving the failure of Appellant to file an appeal of the Permit Board’s decision within twenty days after it was entered into the books as mandated by Miss.Code Ann. Section 49-17-29). According to Zimmerman, “[o]nce an agency decision is made and the decision remains unappealed beyond the time to appeal, it is barred by administrative res judicata or collateral es-toppel.” 747 So.2d at 861 (citing Hood, 571 So.2d at 268). See also Miss. Empl. Sec. Comm’n v. Philadelphia Mun. Separate Sch. Dist. of Neshoba County, 437 So.2d 388, 396 (Miss.1983) (the doctrine of collateral estoppel applies to administrative proceedings). In Hood, this Court found that “[ajbsent statute to the contrary, a chancery court is precluded by either doctrine [res judicata or collateral estoppel] once an administrative agency, acting in a fact-finding capacity, enters its ruling.” 571 So.2d at 269, fn. 5. This Court specifically determined in Hood that “[i]f an aggrieved state employee were allowed to bring his Section 1983 claim in chancery court after exhausting his administrative remedies and judicial review thereof, we would be sanctioning a duplication of process.” Id. at 268. But see East Mississippi State Hosp. v. Callens, 892 So.2d 800, 822 (Miss.2004) (overruling Hood to the extent it denies a discharged state employee the right to assert appropriated Section 1988 claims against state officials in their personal or individual capacities). This Court has found that the Hood holding “dictates that the doctrine of res judicata precludes not only further litigation of claims that were actually raised in a prior proceeding, but also any claim that could have been raised in the earlier suit.” Smith, 797 So.2d at 963 (citing Hood, 571 So.2d at 267-69).

¶ 16. Section 27-73-1 was an “additional and supplemental method of refunding taxes erroneously paid” to “any other law providing for the application for or the certification of a claim for refund.” Miss. Code Ann. Section 27-73-1. In other words, both Sections 27-7-71, -73 and Section 27-73-1 were available to Appellants when the action was initially commenced. However, when Appellants chose to seek relief under Sections 27-7-71 and-73, they also became bound by the provisions of those statutes and the resulting outcome. Section 27-7-73 expressly states that the Tax Commission determination “shall be final” unless a petition was filed in the chancery court seeking a “hearing of the case on its merits” and accompanied by “a bond ... in a sum double the amount in controversy.” Miss.Code Ann. Section 27-7-73. The Tax Commission fully considered the issue and entered a determination against Appellants under Section 27-7-73. When Appellants chose not to appeal the Tax Commission’s determination and paid the tax, finality attached under Section 27-7-73. As the doctrines of res judicata and collateral estoppel apply to administrative decisions, the finality of Section 27-7-73 judicially forecloses the Appellants from now utilizing Section 27-73-1. See Smith, 797 So.2d at 963; Zimmerman, 747 So.2d at 861; Hood, 571 So.2d at 268. To hold otherwise would effectively strip Sections 27-7-71, and -73 of the force they were legislatively created to possess and make a mockery of the time-honored principles of res judicata and collateral estoppel.

¶ 17. Even if an appeal under Section 27-73-1 was not barred by the doctrines of res judicata and collateral estop-pel, Appellees argue that the statute of limitations in Section 27-73-5 would bar the action. Section 27-73-5, the applicable statute of limitations for actions brought under Section 27-73-1, requires the suit to be filed within three years of the date the return is filed, the date the tax assessment is made, or the date the tax was paid, whichever is earliest. The returns were filed between 1990 and 1995; the tax assessment was made on June 1, 1999; and the tax was paid on May 11, 2001. Because the suit was not filed until February 19, 2004, more than three years had passed from every applicable date except the date the tax was paid. Appellants respond that this argument is unsupportable because its analysis hinges upon the assumption that the Appellants right to claim a refund could have expired prior to the assessment or payment of the taxes. Simply stated, Appellants argue that if Section 27-73-5 is applied in this fashion, the statute of limitations could bar a party from asserting a right before it ever arose, violating the due process clause of both the Mississippi Constitution and the United States Constitution. See Bell v. Union & Planters’ Bank & Trust Co., 158 Miss. 486, 130 So. 486, 487 (1930) (“A statute of limitations, which attempts to bar a debt without giving reasonable time within which the right may be preserved, is violative of the contract clause (article 1, § 10, el. 1), as well as the due process clause, of the Federal Constitution (Amendment 14) and of the like provisions in our state Constitution.”). Assuming arguendo, that beginning the statute of limitations from the date returns were filed would be constitutionally infirm, we are not required to address this, as the facts in this case establish that approximately four years and nine months passed between the date of assessment (June 1,1999) and the date the suit was filed (February 19, 2004). Clearly, the statute of limitations would have expired, assuming a Section 27-73-1 action were permissible, under this set of facts.

III. Whether Miss.Code Ann. Section 27-7-73 is unconstitutional and whether the chancellor erred in relying exclusively on it as the legal basis for a ruling that Appellants were barred from seeking a refund of overpaid taxes pursuant to Miss.Code Ann. Section 27-73-1.

¶ 18. Only if this Court determined that an action based on Section 27-7-73 was sustainable would we be required to consider whether the statute could withstand constitutional scrutiny. However, because this Court has determined that both Sections 27-7-71 and -73 and Section 27-73-1 were available to Appellants when the action was initially commenced, any argument regarding the unconstitutionality of Section 27-7-73 is misplaced. Appellants became bound by the provisions of Sections 27-7-71 and -73 when they elected to seek relief thereunder. They had the option of paying the contested taxes and proceeding under Section 27-73-1. Appellants elected to use the administrative appeals procedures of Section 27-7-71 and, upon being denied relief thereunder, elected not to appeal the final Order of the Tax Commission. Thereafter, they paid the tax assessment. The Tax Commission’s determination under Section 27-7-73, not being appealed, became final. To hold otherwise “would deprive § 27-7-73 of any operative force.”

IV. Because the circumstances surrounding a letter written by Appellants remains unresolved and the Court failed to consider the financial condition of Appellants, whether genuine issues of material fact exist which should have precluded the chancellor’s grant of summary judgment.

¶ 19. Appellants contend the chancellor failed to consider whether their financial condition in 2001 precluded them from proceeding under Section 27-7-73. Appellants argue that in spite of the plain language of their May 11, 2001 letter (“The captioned taxpayers are not appealing the final Order of the Mississippi State Tax Commission ....”) and their full payment of the tax assessment, which created finality in the Tax Commission’s Order under Section 27-7-73, the chancellor should have intuited their surrounding circumstances (i.e. inability to obtain the appeal bond within thirty (30) days). This argument lacks merit. As Appellants failed to appeal or otherwise seek relief from the Tax Commission’s Order within thirty (30) days of receiving notice, that Order became final and is non-appealable. Any attempt to circumvent that finality is barred under the doctrines of res judicata and collateral estoppel. See Smith, 797 So.2d at 963; Zimmerman, 747 So.2d at 861; Hood, 571 So.2d at 268. Therefore, no genuine issues of material fact exist, and Appellees are “entitled to judgment as a matter of law.” Hardy, 826 So.2d at 74 (quoting Robinson, 732 So.2d at 207).

CONCLUSION

¶20. For the aforementioned reasons, this Court affirms the chancellor’s decision to grant summary judgment for Appellees.

¶ 21. AFFIRMED.

SMITH, C.J., WALLER, P.J., EASLEY AND CARLSON, JJ., CONCUR. COBB, P.J., AND DICKINSON, J., CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. GRAVES, J, DISSENTS WITH SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

GRAVES, Justice,

Dissenting:

¶22. The Majority affirmed the chancellor’s decision to grant summary judgment to the Attorney General of the State of Mississippi and the Executive Director of the Department of Finance and Administration. However, I am compelled to dissent. The opinion of the Majority specifically applies its statutory interpretation of Miss.Code Ann. Section 27-7-71 and Miss.Code Ann. Section 27-7-73 to the facts of this case. The Majority affirmed the chancellor’s ruling that the Davis’ were not entitled to judicial review because they failed to seek review of the administrative decision within thirty (30) days of the Tax Commission’s Order, as required by Section 27-7-73. Based upon this interpretation, the Majority opines that the failure to appeal rendered the Tax Commission’s Order final and unreviewable under the doctrines of res judicata and collateral estop-pel.

¶23. The Majority is simply in error when it applies its interpretation of Section 27-7-71 and Section 27-7-73 to a refund claim submitted by the Davis’ under Section 27-73-1, which establishes that a refund can be sought under that section for any tax where the taxpayer has paid an amount beyond what is due. Under Section 27-73-1, a taxpayer has the right to pursue a refund claim for overpaid taxes. Furthermore, a taxpayer is entitled to the benefits of Section 27-73-1, and relief cannot be denied under Section 27-73-1 on the basis that a taxpayer’s claim is barred under Section 27-7-73. There must exist some impediment against the claim as listed in Section 27-73-1. In this case, the State’s argument was that the Davis’ claim was barred once the administrative appeals processes of Section 27-7-71 and Section 27-7-73 were utilized. The State further argued that because the claim was barred under Section 27-7-73, this bar of relief extended to preclude the Davis’ from seeking a refund under Section 27-73-1. This analysis is clearly erroneous. The statutory sections relied upon by the State are separate and distinct from the particular code section used by the Davis’ to seek a refund. Miss.Code Ann. Section 27-73-1 specifically deals with tax refunds, while Sections 27-7-71 and 27-7-73 discuss the remedies available to a taxpayer after an assessment is made. These statutes are separate, distinct, and independent. There is no question that Section 27-73-1 applies to the overpayment of income taxes because in State ex. rel. Rice, Atty. Gen. v. Mississippi Institute of Aeronautics, 198 Miss. 288, 22 So.2d 372 (Miss.1945), this Court confirmed that Section 27-73-1 did in fact apply to the overpayment of income tax:

But it is contended by the appellant that Chapter 127, Laws 1944, granting the taxpayer the right to bring such a suit does not cover this particular character of claim, since it only provides that ‘if any person, firm or corporation as paid, or shall hereafter pay to the * * * state tax commission * * * through error or otherwise, whether paid under protest or not, any * * * eccise [sic] tax for which such person, firm or corporation was not liable, or if any such taxpayer has paid any tax in excess of the sum properly due and such erroneous payment or over-payment has been paid into the proper treasury, the taxpayer shall be entitled to a refund of the taxes so erroneously paid.’ The precise contention of the appellant is that the facts rendering the payment of the taxes an overpayment or an erroneous payment must have existed at the time the income tax return was made on March 12, 1943. But we are unable to agree with this contention. We think that the subsequent renegotiation of the contract as to price relates back so as to render the income tax on the $94,000 an overpayment, since the State Tax Commission received the tax subject to the right of the Federal Government to require the refund by the taxpayer of such portion of the total compensation paid under the contract, thereby rendering it non-taxable income of the taxpayer.

Id. at 374.

¶ 24. In Barnett v. United States Casualty Co., 197 Miss. 873, 21 So.2d 5 (Miss.1945), this Court explained that Section 27-73-1 constitutes an additional and supplemental method for pursuing a tax refund when the taxpayer is unable to obtain relief through ordinary administrative channels. In Barnett, this Court stated:

Save as to the particular taxes specially excepted, a taxpayer may now pay to a tax collector, state or county, any tax demanded, thereby not delaying its payment, and when, upon subsequent development or ascertainment, it is found that as a matter of ultimate liability the tax, or full amount, so collected is not rightfully retained, and he is unable to obtain relief through the ordinary administrative channels, he may resort to the positive provisions of the modern enactment last cited. If this was not the purpose of the enactment, it had as well not been passed at all.

Id. at 880, 21 So.2d 5 (emphasis added). The facts of this case indicate that financial constraints played a major role in the Davis’ failure to secure the appeal bond as required by Miss.Code Ann Section 27-7-73. This situation placed the Davis’ in the category of taxpayers who were unable to obtain relief through ordinary administrative channels. Therefore, Section 27-73-1 constituted the additional and supplemental method by which they could pursue a refund.

¶ 25. The legislative intent of Section 27-7-71 and Section 27-7-73 was to outline the procedures involved in the administrative appeals process concerning income tax and withholding, not to preclude taxpayers from exercising their right of relief under Section 27-73-1. If this was the case, the legislature would have used restrictive language in the statutes to signify that a bar under Section 27-7-71 would equal a bar to relief under Section 27-73-1. Currently, there is no statutory language in Section 27-7-71 or Section 27-7-73 which would extend a statutory bar to relief to Section 27-73-1 if a claim is not appealed within thirty days under Section 27-7-71. Furthermore, in Bailey v. Al-Mefty, 807 So.2d 1203 (Miss.2001), this Court stated the primary rule of statutory construction:

The primary rule of construction is to ascertain the intent of the legislature from the statute as whole and from the language used therein. Where the statute is plain and unambiguous there is no room for construction, but where it is ambiguous the court, in determining the legislative intent, may look not only to the language used but also to its historical background, its subject matter, and the purposes and objects to be accomplished.

Id. at 1206.

¶ 26. When interpreting the intent of the Legislature when it enacted Section 27-73-1, this Court in Mississippi Cent. R. Co. v. City of Hattiesburg, 163 Miss. 311, 141 So. 897 (1932) stated that “the statute created a right and not a mere remedy.” Id. at 897. This right is separate, distinct, and independent of anything prescribed in Section 27-7-71 or Section 27-7-73, and nothing relied upon by the Majority extinguishes the right created by Section 27-73-1. This statute creates an unqualified right to seek a refund and what has occurred prematurely aborts the process whereby a refund can be sought. Absent any authority which extinguishes this statutory right, the Davis’ are entitled to pursue their claim under Section 27-73-1. The right of a taxpayer to the entitlement of a refund for the overpayment of taxes can be found in the language of Section 27-73-1(1):

If any person, firm or corporation has paid, or shall hereafter pay to the Auditor of Public Accounts or the Commissioner of Insurance, through error or otherwise, whether paid under protest or not, any ad valorem, privilege or excise tax for which the person, firm or corporation was not liable, or if any such taxpayer has paid any tax in excess of the sum properly due and such erroneous payment or overpayment has been paid into the proper treasury, the taxpayer shall be entitled to a refund of the taxes so erroneously paid. Taxes erroneously paid within the meaning of this section shall include double payment, or overpayment, or payment on state, United States, vacant and exempt land, and the purchase price paid for the redemption of lands erroneously sold for taxes.

(Emphasis added).

¶27. The word “shall” is used to express what is mandatory. Absent language within Section 27-73-1 which would prohibit the entitlement of a refund if a taxpayer’s claim is barred under Section 27-7-71, the statute mandates that a taxpayer be allowed to exercise his alternative and supplemental right of review under Section 27-73-1.

¶ 28. The Majority also states in the opinion that “both Section 27-7-71 and Section 27-73-1 were available to the Appellants when the action was initially commenced. However, when the Appellants chose to seek relief under Sections 27-7-71,-73, they also became bound by the provisions of those statutes and the resulting outcome.” The Majority must note that no statutory language exists which can be interpreted to conclude that the Legislature intended that taxpayers only have one option as between Section 27-7-71 and Section 27-73-1. The Legislature created a right to seek a refund. Furthermore, the “finality” language relied upon by the Majority only applies to Section 27-7-71 and cannot be imposed on Section 27-73-1 to preclude relief on the doctrines of res judicata and collateral estoppel. While the Davis’ claims may have reached a stage of “finality” as applied to their initial petition under Section 27-7-73, this did not preclude them from exercising their right of potential relief for a refund under Section 27-73-1.

¶ 29. In light of the majority opinion, those who knowingly and voluntarily choose to overpay their taxes with an eye toward seeking a refund upon filing a return should now be reluctant to do so based on this decision. Accordingly, because the Davis’ are entitled to the right of review of their claim under Section 27-73-1,1 respectfully dissent.

      . The additional income tax, penalties and interest chiefly related to Mr. Davis's employment at Cook Funeral Home in Jackson, Mississippi.

      . The Board of Review found additional income tax, penalties and interest in the amount of $166,396.00.

      . The Tax Commission found additional income tax, penalties and interest in the amount of $173,751.00.

      . Appellants assert financial inability as the reason for failure. However, Appellees contend that the only argument raised by Appellants prior to this appeal was a time constraint.

      . " § 27-73-1 may have been an alternative and supplemental method of contesting the assessments when they were initially made under § 27-7-49, but once the Davis' elected to challenge the assessment under the administrative process set out in § 27-7-71 and § 27-7-73, the Davis’ are bound by the final results of the administrative process.” (Emphasis added).

      . Citing Hood v. Dept. of Wildlife Conservation, 571 So.2d 263 (Miss.1990); City of Jackson v. Holliday, 246 Miss. 412, 149 So.2d 525 (Miss.1963).

      . As required by Section 27-73-1(1).

      . "The Commission's findings being final, are res judicata to any questions raised by Plaintiffs as to the income tax assessment issued against Plaintiffs.... Plaintiffs are also barred under the doctrine of collateral estoppel from raising the issues raised in this action, being the same issues raised before the Commission and in regard to which the Commission made findings which were not timely appealed and became final.”

      . Section 27-73-5 provides a three (3) year statute of limitations and, according to Appel-lees, "it is clear that the returns in issue were filed more than three (3) years before the filing of this action, and if not the returns, the assessments were issued more than three (3) years before the present action.”

      . Section 27-73-1(1). See also State ex rel. Rice v. Mississippi Institute of Aeronautics, 198 Miss. 288, 22 So.2d 372 (1945) (regarding a refund of income taxes pursuant to § 27-73-1); Barnett v. United States Casualty Co., 197 Miss. 873, 21 So.2d 5 (1945).

      . Section 27-73-1(2).

      . "If applying § 27-73-5 in this regard, Plaintiffs would have been required to file a claim of refund under § 27-73-1 before the Commission assessed them for the 1990-1995 taxable years.” Moreover, Appellants argued that under Section 27-73-1, a Plaintiff may file in chancery court his petition for appeal and review within six (6) months of a disapproved request for refund from the Attorney General. As the Attorney General disapproved their refund request on November 13, 2003, and the Appellants filed their Complaint on February 19, 2004, they were well within that six month requirement.

      . Citing Smith v. University of Mississippi, 797 So.2d 956, 963 (Miss.2001); Zimmerman v. Three Rivers Planning and Development Dist., 747 So.2d 853, 861 (Miss.Ct.App.1999).

      . Note that both Section 27-7-71 and Section 27-7-73 were repealed by Laws 2005, Ch. 499, Section 36. That repeal, however, became effective on July 1, 2005 and was not to be applied retroactively. See Laws 2005, Ch. 499, Section 37; Miss. Cent. R. Co. v. City of Hattiesburg, 163 Miss. 311, 141 So. 897 (1932) ("Statutes will be given a prospective operation unless a contrary intention is shown.”). This negates the argument of Appellants that the repeal, along with Senate Bill 2742, 2005 Regular Session, Section 4(1) (which effectively consolidates the alternative procedures of Sections 27-7-71, -73 and Section 27-73-1 into one), bears any significance in the present action.

      . Section 27-7-73 provides:
      The findings of the state tax commission shall be final unless the taxpayer shall, within thirty days from the date of the receipt of notice of such findings, file a petition in the chancery court of the county in which the taxpayer is a resident or in which the taxpayer is domiciled.... The petition shall be accompanied with a bond, to be approved by the clerk of said court, in a sum double the amount in controversy, conditioned to pay the judgment of the court.... The chancery court shall have jurisdiction to hear and determine said cause or issue joined as in other cases.
      Miss.Code Ann. § 27-7-73 (emphasis added).

      . In accord with the provisions of Section 27-7-71.

      . In both cases, the predecessor statute to Section 27-73-1 was being invoked.

      . See Barnett, 21 So.2d at 7 (“Save as to the particular taxes specially excepted, a taxpayer may now pay to a tax collector, state or county, any tax demanded, thereby not delaying its payment, and when, upon subsequent development or ascertainment, it is found that as a matter of ultimate liability the tax, or the full amount, so collected is not rightfully retained, and he is unable to obtain relief through the ordinary administrative channels, he may resort to the positive provisions of [the predecessor to Section 27-73-1]. If this was not the purpose of the enactment, it had as well not been passed at all.”) (Emphasis added). However, the Opinion of the Attorney General distinguished these cases "because the claim for refund arose from the overpayment of income taxes, paid with a filed return, not from the payment of additional taxes due to audit and assessment.”

      . Section 27-73-1(2) states, "[t]his section shall not be construed as repealing or modifying Section 27-73-7, or any other law providing for the application for or the certification of a claim for refund, but shall be taken and construed as an additional and supplemental method of refunding taxes erroneously paid.” Miss.Code Ann. § 27-73-1(2) (emphasis added).

      . Section 27-73-5 provides that statute of limitations stating, "[a]ll suits by any taxpayer for the recovery of any ... income ... tax, and all applications or proceedings for any refund or credit of such taxes shall be filed or made within three years next after the return was filed, or from the date of the assessment of the tax was made, or from the date the tax was paid ... whichever is the earlier, and no recovery of taxes under any such suit shall be had and no refund of taxes shall be made unless such suit or application was filed within said period of limitation.” Miss.Code Ann. § 27-73-5 (emphasis added).

      . Of additional significance, Appellants fully paid the tax assessment, presented a letter to the Tax Commission stating that they were not appealing its final Order, and then waited over two years before first advancing their theory regarding Section 27-73-1’s applicability.

      . See footnote 20.

      . Note also that Section 27-7-73 has since been repealed. See footnote 14.


source: Caselaw Access Project

author: CARLSON, Justice, DICKINSON, Justice,

license: Public Domain

text:
    Hoyt FORBES and Hilda Forbes v. GENERAL MOTORS CORPORATION and Mack Grubbs Motors, Inc.
    No. 2003-CT-01201-SCT.
    Supreme Court of Mississippi.
    May 25, 2006.
    Rehearing Denied Aug. 24, 2006.

      Wayne Dowdy, Magnolia, attorney for appellants.
    Gene D. Berry, Jackson, Paul V. Cassi-sa, Jr., Oxford, attorneys for appellees.
   ON WRIT OF CERTIORARI

CARLSON, Justice,

for the Court.

¶ 1. This products liability case between an automobile owner and the manufacturer of that vehicle is before us on writ of certiorari. After a car accident, Hilda Forbes, the driver of the car sustaining front-end damage, sued the auto manufacturer because the air bag failed to deploy. After the plaintiffs rested their case-in-chief, the trial court granted a motion for a directed verdict for the defendant General Motors (“GM”), ruling that Forbes and her husband had failed to present sufficient evidence to support a verdict in their favor. The Court of Appeals affirmed. We now affirm in part and reverse and remand in part, the decision of the Court of Appeals.

FACTS AND PROCEEDINGS IN THE TRIAL COURT AND THE COURT OF APPEALS

¶ 2. The Court of Appeals provided the following factual and procedural background:

On December 15, 1997, Hilda Forbes and her three grandchildren were traveling to Columbia, Mississippi, in her 1992 Oldsmobile Delta 88. Mrs. Forbes was driving behind a 1981 Chevrolet Chevette, which suddenly stopped and attempted to turn into a private driveway. Mrs. Forbes struck the Chevette from the rear. Both automobiles were damaged. The air bag in Mrs. Forbes’ automobile did not inflate.
As a result of the impact, Mrs. Forbes was propelled forward into the windshield. She suffered a subdural hemato-ma. Dr. Howard Katz, a specialist in physical medicine, rehabilitation, and spinal cord injuries, testified by deposition that Mrs. Forbes suffered significant cognitive dysfunction and never completely recovered from the injury to her brain.
The air bag system and Mrs. Forbes’ automobile were manufactured by GM. The automobile was purchased from Mike Smith Motors, which subsequently was purchased by Mack Grubbs Motors, Inc. Angela Coleman was the driver of the 1981 Chevrolet Chevette.
On December 7, 2000, Hilda and Hoyt Forbes commenced this lawsuit in the Circuit Court of Hinds County, Mississippi. On December 15, 2000, they filed an amended complaint that added GM as a defendant. By agreement of the parties, venue was transferred to the Circuit Court of Marion County, Mississippi, where this case was tried before the Honorable R.I. Prichard, III, and a jury.
The plaintiffs rested their case on the third day of trial. The plaintiffs voluntarily dismissed Angela Coleman. Mack Grubbs Motors, Inc.’s motion for a directed verdict was granted, after the plaintiffs confessed the motion. GM moved for a directed verdict, and the plaintiffs confessed the following portions of the motion:
1. Plaintiffs failed to prove that the air bag deviated in a material way from GM’s specifications;
2. Plaintiffs failed to prove that the air bag was defective in design; and
3. Plaintiffs failed to prove that the air bag was defective because it failed to contain adequate warnings.
Judge Prichard then granted the remainder of GM’s motion for a directed verdict, finding that the plaintiffs failed to prove that their damages were proximately caused by an unreasonably dangerous and defective condition of the air bag system due to GM’s breach of an express warranty or other express factual representation upon which the plaintiffs justifiably relied in using the product.

Forbes v. Gen. Motors Corp., 929 So.2d at 960-61 (Miss.Ct.App.2005). The Forbeses argued that GM breached an express warranty, that the air bag was unreasonably dangerous, and that the unreasonably dangerous condition proximately caused the damages for which recovery was sought, namely the injuries to Mrs. Forbes. The trial judge ruled that there was insufficient evidence for the jury to reach a verdict other than for GM and that if the case had been submitted to the jury and it had found against GM, he would have been compelled to set aside the verdict and either grant a new trial or a J.N.O.V. Additionally, the trial judge excluded evidence the Forbeses presented of other GM automobiles with air bags that did inflate when those cars were involved in wrecks. After the Court of Appeals affirmed the trial court, the Forbeses filed a motion for rehearing. The Court of Appeals denied that motion, but issued a modified opinion affirming the trial court’s decision by a split vote of 5-4, with a separate dissenting opinion. Forbes v. Gen. Motors Corp., 929 So.2d 958 (Miss.Ct.App.2005). The Forbeses then petitioned this Court for a writ of certiorari which we granted. As to the issue of the exclusion of certain photographs, we affirm. As to the issue of the trial court’s grant of a directed verdict in favor of GM, we reverse the judgment of the Court of Appeals and remand this case to the trial court for proceedings consistent with this opinion.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN GRANTING GM’S MOTION FOR A DIRECTED VERDICT AT THE CLOSE OF THE PLAINTIFFS’ CASE-IN-CHIEF

¶ 3. Our standard of review for a directed verdict is clear. This Court will consider the evidence in the light most favorable to the non-movant, giving that party (Forbes) the benefit of all favorable inferences that may be reasonably drawn from the evidence. We must decide if the facts so considered point so overwhelmingly in favor of the movant that reasonable jurors could not have arrived at a contrary verdict. Thus, if reasonable jurors could not have arrived at a different verdict, the grant of a directed verdict must be affirmed on appeal. On the other hand if there is substantial evidence, that is, evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions, we cannot affirm the grant of a directed verdict. Cousar v. State, 855 So.2d 993, 998 (Miss.2003). In Coiisar, we addressed the denial of a directed verdict. However, we have also stated that the same standard of review applies equally to the review of a grant of a directed verdict. “An appellate court reviews a trial court’s grant or denial of a motion for directed verdict under the same standard of review that is employed when reviewing the denial of a judgment notwithstanding the verdict.” Blake v. Clein, 903 So.2d 710, 731 (Miss.2005) (relying on Shelton v. State, 853 So.2d 1171, 1186 (Miss.2003)). That standard is de novo. “This Court conducts a de novo review of motions for directed verdict.... If the Court finds that the evidence favorable to the non-moving party and the reasonable inferences drawn therefrom present a question for the jury, the motion should not be granted.” Entergy Mississippi Inc. v. Bolden, 854 So.2d 1051, 1055 (Miss.2003) (internal citations omitted). “Additionally, this Court has held that a trial court should submit an issue to the jury only if the evidence creates a question of fact concerning which reasonable jurors could disagree.” Id.

¶ 4. Therefore, we will consider the evidence de novo in the light most favorable to the Forbeses and give them the benefit of all favorable inferences that may be reasonably drawn from the evidence. In doing so in this case, if we find the facts so considered point so overwhelmingly in favor of GM that reasonable jurors could not have arrived at a contrary verdict, and there is thus no question for the jury, we are required to affirm the trial court’s ruling. Conversely, if we find that there is substantial evidence of such quality and weight that reasonable, fair-minded and impartial jurors could have differed on the matter, and that the trial court should have submitted the issue to the jury, then we must reverse and remand.

¶ 5. The Forbeses argued that: (1) the product breached an express warranty or failed to conform to other express factual representations upon which they relied: (2) the defective condition rendered the air bag and car unreasonably dangerous to them; and, (3) the dangerous condition proximately caused the injuries to Mrs. Forbes. Miss.Code Ann. § ll-l-63(a) (Rev.2002) states:

(a) The manufacturer or seller of the product shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer or seller:
(i) 1. The product was defective because it deviated in a material way from the manufacturer’s specifications or from otherwise identical units manufactured to the same manufacturing specifications, or
2. The product was defective because it failed to contain adequate warnings or instructions, or
3. The product was designed in a defective manner, or
4. The product breached an express warranty or failed to conform to other express factual representations upon which the claimant justifiably relied in electing to use the product; and
(ii) The defective condition rendered the product unreasonably dangerous to the user or consumer; and
(iii) The defective and unreasonably dangerous condition of the product proximately caused the damages for which recovery is sought.

Id. The plaintiff must prove (ii), (iii), and at least one of four elements of a claim under (i). Forbes’s counsel, for better or worse, confessed having no cause of action based on a defective product under subsections (a)(i)(l), (a)(i)(2), or (a)(i)(3). The remaining possibility for Forbes’s cause of action is found under subsection (a)(i)(4), the breach of an express warranty, which is the portion of the statute in which Forbes’s claim is grounded. The Forbeses argued that (1) because the owner’s manual of their Delta 88 represented that the air bag would inflate when the car was involved in a frontal collision that was “hard enough,” GM breached an express warranty; (2) because the air bag did not deploy and was defective, it was unreasonably dangerous; and, (3) because the air bag did not deploy, it proximately caused injuries to Mrs. Forbes, whose injuries otherwise would not have been as great. We consider these assertions today in order of their counterparts in the statute, subsections (i)(4), (ii), and (iii).

A. Did GM breach an express warranty or fail to conform to express factual representations upon which the Forbeses justifiably relied?

¶ 6. The essence of the Forbeses’ argument is that GM sold its product with the express warranty that the air bag would deploy in the event of a front-end collision when the impact was “hard enough.” The Forbeses claim that the amount of force sustained by their car in this accident was certainly hard enough according to their experts’ testimony, and that therefore the express warranty was breached. The express warranty referred to is a portion of the owner’s manual for their automobile which states that if a front-end collision “is hard enough, the ‘air bag’ inflates in a fraction of a second.”

¶ 7. The Court of Appeals centered them discussion around three sentences in the owner’s manual upon which the Forbeses supposedly solely relied in purchasing their car, which reads as follows. “The ‘air bag’ part of the SIR [Supplemental Inflatable Restraint] system is in the middle of the steering wheel. The SIR system is only for crashes where the front area of your vehicle hits something. If the collision is hard enough, the ‘air bag’ inflates in a fraction of a second.” The Court of Appeals analysis focused a great deal on how hard “hard enough” actually is and discussed the evidence presented at trial. The Court of Appeals further noted that the Forbeses cited no authority for any assertion in their original briefs outside of the standard of review and the definition of a directed verdict. Normally, the failure to cite any authority in support of an assignment of error prevents us from considering a claim on appeal. R.C. Petroleum, Inc. v. Hernandez, 555 So.2d 1017, 1023 (Miss.1990). However, as discussed below, because this case is largely fact-driven, we continue a detailed analysis.

¶ 8. The Court of Appeals also focused on another fact supposedly creating an express warranty which was breached— the salesman’s words. As the Court of Appeals stated, because the salesman who sold Mr. Forbes the Delta 88 stressed the importance of an air bag and explained that the car was equipped with one, the Forbeses claim to have been given a factual representation on which they relied. As both the trial court and the Court of Appeals correctly pointed out, the salesman was a representative of Mike Smith Motors or Mack Grubbs Motors, not GM. However, GM is the only remaining party to this case, and no representative from GM actually made any statement to the Forbeses regarding the air bag in their car, outside of the owner’s manual. In any case, the Forbeses never once claimed in their brief or in their petition that the oral statement made by the salesman was the express warranty upon which they relied. They instead focus wholly on the owner’s manual, as we will as well.

¶ 9. The Court of Appeals also pointed out that the Forbeses do not deny that they never read the alleged warranty in the owner’s manual and that they thus fail to show sufficient reliance on the owner’s manual. The Court of Appeals relied on Palmer v. Volkswagen of America, Inc., 904 So.2d 1077, 1084 (Miss.2005), where we stated, “[t]he presence or absence of anything in an unread owner’s manual simply cannot proximately cause a plaintiffs damages.” In Palmer we noted that, with regard to proximate cause, a plaintiff who has not read an owner’s manual at all cannot claim to have been misled by it. Id. However, Palmer is not applicable to the issue before us. In Palmer, we were confronted with the issue of a failure to warn being the proximate cause; however, the issue today is a “failure to perform in accordance.with a factual representation,” in the words of the Court of Appeals, or rather a failure to conform to a factual representation upon which the claimant justifiably relied. In any case, that the Forbeses never read their owner’s manual is not fatal to their case. It is still possible to rely on assertions therein without having actually read them. It would be quite unusual for a consumer to read an owner’s manual before buying a car. Even more unusual would be for a consumer to insist upon reading the manual before buying the automobile and requiring that an understanding of the manual be a condition precedent to purchasing the car. The fact remains that Mr. Forbes did make his purchase conditional on one factor, the presence of a functional driver’s side air bag. Forbes inquired about the presence of an air bag from the salesman and ensured that the vehicle he was purchasing was equipped with one as a specific feature. More importantly, he paid a higher price to have an air bag included. While the salesman himself may not substantively assert facts making GM liable, here he was doing nothing more that conveying the express warranty to Forbes. The salesman was merely relaying a fact GM represented in their owner’s manual, that the car he was buying had a working air bag. Relying on that fact, Mr. Forbes decided to purchase this particular car. To meet the first part of the statutory claim, the Forbeses must show that the product either “breached an express warranty or failed to conform to other express factual representations” upon which he justifiably relied in electing to use the product. Miss. Code Ann. § 11 — 1—63(a)(i)(4) (emphasis added). In this case, there is both an express warranty, the promise of a functional driver’s side air bag, and justifiable reliance, the fact that, but for the promise of the air bag, Forbes would not have purchased the vehicle. The statutory requirements are thus met.

¶ 10. The worthy dissenting opinion in today’s case quotes a portion of Foster v. Copiah County Co-op., AAL., 246 Miss. 218, 231, 148 So.2d 702, 707 (1963), where this Court held, “[i]f a statement was unknown to the buyer at the time the sale was completed, it is obvious that there can be ... [no] detrimental reliance.... ” However, Foster was clearly handed down well before Miss.Code Ann. § 11-1-63 was in effect and thus that opinion was not interpreting today’s statute. The full sentence containing the holding from that case reads as follows: “[i]f a statement was unknown to the buyer at the time the sale was completed, it is obvious that there can be neither consideration from the standpoint of the law of contracts nor detrimental reliance from the standpoint of the law of torts.” Id. However, simply stated, Foster is not dispositive in favor of GM here. The fact that the Foster court was not dealing with a question involving today’s statute is not the only reason this is true. First, the claim in Foster was one rooted in the law of sales, not torts. Second, Foster only emphasizes if the statement was unknown at the time of sale, not “unread.” The dissent places emphasis on this as well, stating, “there can be no reliance on a statement the plaintiff knows nothing about.” That the car had a driver’s side air bag was indeed known to Forbes at the time of sale and was one upon which he relied in electing to use the product. See, Miss.Code Ann. § 11 — 1— 63(a)(i)(4).

¶ 11. Additionally, today’s dissent relies on another federal case to bolster its argument that no express warranty existed upon which Forbes relied, Austin v. Will-Burt Co., 232 F.Supp.2d 682, 687 (N.D.Miss.2002), aff'd, 361 F.3d 862 (5th Cir.2004). In that case, a telecasting company did fail to prove it relied on the manufacturer’s statements when purchasing an aluminum telescoping mast, but it did not purchase that mast from the manufacturer, but rather a third party, the original purchaser, and did so ten years after the original sale. Because of this, the Austin court found no express warranty existed between the manufacturer and the plaintiffs in that case, thus Austin is distinguishable. In any case, Austin quoted Albritton v. Coleman Co., 813 F.Supp. 450, 455 (S.D.Miss.1992) to hold that, “[a]n express warranty is any affirmation of fact or promise which concerns the product and becomes part of the basis for the purchase of such a product. Fault does not need to be shown to establish a breach. The plaintiff need only show that the product did not live up to its warranty.” Austin, 232 F.Supp.2d at 687 (internal citations omitted). This accurately describes the situation before us today. An express warranty, which is any affirmation of fact, exists in today’s case and undoubtedly became a part of the basis for Forbes’s purchase of the car in the first place. Therefore, in order for Forbes to overcome a motion for a directed verdict, we must determine whether Forbes has shown that the product did not live up to its warranty.

¶ 12. In order to do this, we turn to the problem of deciding how hard an impact must be to meet the standard of “hard enough.” The question of whether the warranty was breached depends on what amount of force is “hard enough” to trigger an air bag and whether the car sustained that amount of force. The dissenting opinion from the Court of Appeals opines that because the car had extensive amounts of damage, the collision must have been hard enough. Forbes, 929 So.2d at 970 (Irving, J., dissenting). To the extent that the evidence presented was sufficient to allow the issue to go to the jury, we agree. The plaintiffs’ case relied in part on the testimony of Major John Tolar of the Columbia Police Dept, who stated that, in his opinion, it was unusual for an air bag not to inflate where damage to both cars was extensive, and Danny Alexander, the passenger of the other car in the accident, who testified to his injuries and damage to that car. Another expert at trial was Jim Pachmyer, the mechanic who removed and repaired the Delta 88. Pachmyer testified about the extent of the damage and the nature and cost of the needed repairs, which was approximately $5,800. Pachmyer also testified that many of the items on the front of the car, designed to shatter on impact, were destroyed, including the grill assembly, header panel system, front cover, front bumper, front bumper impact absorber, and the whole front bumper assembly, with its various reinforcement bars and braces. The headlight assembly was also destroyed, and the hood and hood panel between the fenders had to be replaced. Additionally, Pachmyer testified that the metal radiator support, spanning the front of the car and on which the air bag collision sensors were mounted, was driven back four to six inches from the collision. The trial court concluded that this testimony was insufficient to show breach of duty much less proximate cause of the plaintiffs’ injuries. The trial judge specifically cited the plaintiffs’ failure to present a qualified expert to opine that the air bag system in the car was somehow deficient. However, today’s case involves a breach of warranty claim, not a defective product claim.

¶ 13. The Court of Appeals as well would have required an expert in the technical aspects of air bags to determine if the collision was “hard enough.” But see, e.g., General Motors Corp. v. Pegues, 738 So.2d 746, 751-53 (Miss.Ct.App.1998) (trial court did not abuse discretion in allowing local mechanic to offer expert testimony for the plaintiff in products liability case as to the cause and nature of the accident). See also Hollingsworth v. Bovaird Supply Co., 465 So.2d 311, 314 (Miss.1985); Ford Motor Co. v. Dees, 223 So.2d 638, 641 (Miss.1969); Ford Motor Co. v. Cockrell, 211 So.2d 833, 838 (Miss.1968). In today’s case, the dissenting opinion from the Court of Appeals made inquiry as to the existence of authority which requires expert testimony in order to establish the degree of the impact in this case. Forbes, 929 So.2d at 972 (Irving, J., dissenting). The majority of the Court of Appeals relied on a case from a federal district court in which the trial court dismissed a claim after finding no expert evidence that plaintiffs air bag failed to deploy because of some defect. St. Clair v. General Motors Corp., 10 F.Supp.2d 523 (M.D.N.C.1998). That court held that “plaintiffs must offer ‘legal evidence tending to establish beyond a mere speculation or conjecture every essential element’ of their claims.” Id. at 532 (internal citations omitted). We distinguish St. Clair by pointing out that the claim in that case was negligent design and manufacture, unlike the claim in this case of a failure to conform to a factual representation upon which the claimant justifiably relied. It is true that we have frequently relied on expert testimony in deciding fault in products liability cases. See Williams v. Bennett, 921 So.2d 1269 (Miss.2006); Daniels v. GNB, Inc., 629 So.2d 595 (Miss.1993); Dunson v. S.A. Allen, Inc., 355 So.2d 77 (Miss.1978). However, in today’s case, we are not to determine fault. No legal authority exists to require expert testimony in this case, and we do not want to encourage such a rule. An expert beyond what the Forbeses presented should also not be required to point out to the jury that Mr. Forbes thought he was buying a car with an air bag that would inflate in an accident such as this and that the collision was sufficiently hard to deploy the air bag consistent with his expectations. Both the trial court and the Court of Appeals explained that several GM engineers were present in the courtroom, and that the plaintiffs’ attorney could have called these GM experts as adverse witnesses if he had wanted. There is no doubt that providing more expert testimony in this case would not have been an insurmountable hurdle, but we certainly cannot fault the attorney for choosing not to call witnesses who were present, not to help his case, but instead to bolster the case of his opponent, who was employing them for that purpose. The jury should have been presented with the question of whether the impact was hard enough to have deployed the air bag and thus fulfilled a promise on which Mr. Forbes relied when buying his car.

¶ 14. Here, Forbes “need only show that the product did not live up to its warranty.” Albritton, 813 F.Supp. at 455. This means in part showing that the impact was hard enough, something Forbes may attempt to do without further expert testimony than that already offered. The dissenting opinion does not take issue with the conclusion that expert testimony is not needed to establish that the product did not perform as warranted. Forbes can do so without the need of expert testimony in this case because “[flault does not need to be shown to establish a breach.” Id. We do not intend for today’s holding to become a strict rule that no expert testimony is ever needed in any products liability case involving an automobile’s air bag. The nature of these fact-driven actions is such that we must approach them on a case-by-case basis. We are also not determining fault, but simply deciding if the question should be presented to a jury, which we do viewing the evidence in the light most favorable to the Forbeses, and giving them the benefit of all favorable inferences that may be reasonably drawn from the evidence. See Cousar, 855 So.2d at 998. For the sake of emphasis, we repeat that, in order for this case to proceed, the facts and evidence must only be such that reasonable jurors could have arrived at a different verdict. We find that possibility to be very likely.

¶ 15. We cannot find that more was needed for the trial court to allow this case to proceed into GM’s case-in-chief. GM provided the express warranty in the owner’s manual included with the car it manufactured. That warranty issued by GM contained the ambiguous language “hard enough” as the impact threshold for an air bag to inflate. This case presents a classic jury question, whether the car in the collision here sustained a “hard enough” impact to deploy the air bag. Having provided testimony from at least one credible witness with regard to the impact of the collision, the Forbeses have at least presented sufficient evidence to create a jury issue. Had the trial court given the case to the jury, the jurors certainly would have more at their disposal to decide beyond speculation and conjecture the issue of whether the product failed to perform as warranted. The Forbeses established a prima facie case, and there were no proper grounds for the grant of a directed verdict. The dissent in the Court of Appeals presents a hypothetical situation not at issue, a 70 mile-per-hour headlong collision into a brick wall, to ask when expert testimony is not needed to establish that an air bag should have deployed. Forbes v. Gen. Motors Corp., 929 So.2d at 975 (Irving, J., dissenting). Naturally, only the jury presented with such a case can answer that question, but again this hypothetical goes to an analysis of a defective product claim, and not one of a breached express warranty, as here. In the latter situation, we would not hold that an expert be required for the jury to reach its decision. Likewise, we do not find today that an expert beyond those who testified was required in this case for the jury to have been given the opportunity to make its decision. A directed verdict exists so a defendant may challenge a case unsupported by sufficient evidence. Miss. R. Civ. P. 50(a). The trial court improperly granted GM’s motion for a directed verdict, as here the evidence was at least sufficient to require GM to go forward with their case-in-chief.

B. Did the defective condition of the air bag render it unreasonably dangerous to the Forbeses?

¶ 16. The Forbeses claim that the air bag was in a defective condition for breaching its warranty by not deploying when the car was involved in a front-end collision. A “defective condition,” required under the final two parts of the statutory claim, subsections (a)(ii) and (a)(iii), should be distinguished under the current statute from a “defective product,” which would be required under the first part of the statutory claim, subsection (a)(i), had the Forbeses sued under subsections (a)(i)(l), (2), or (3). Miss.Code Ann. § ll-l-63(a). The “defective condition” considered by subsections (a)(ii) and (a)(iii) is merely the satisfaction of one of four possible elements under subsection (a)(i). An absence of the satisfaction of an element in the first section obviates further discussion under the following two sections. As discussed above, the Forbeses sued under subsection (a)(i)(4), which does not require that the product be defective, but simply requires a failure of the product to perform as warranted. We have found the Forbeses’ claim to satisfy the fourth element of subsection (a)(i), to the extent that the jury should have been allowed to consider this issue, and thus we continue our analysis. Regardless of which subsection of (a)(i) a party sues under, the next two questions ask if the product was (1) unreasonably dangerous and (2) the proximate cause of the damages because of its “defective condition,” or the satisfaction of one of the (a)(i) elements, which here was the failure to perform as warranted. Because of that defect, or, stated differently, because of that “defective condition,” the Forbeses argue the product was unreasonably dangerous to the driver, causing her to be thrown into the windshield. This Court has held that “plaintiffs have the burden of showing that the ‘defect that allegedly was the proximate cause of their injury existed at the time that the product left the hands of the manufacturer, and that the defect rendered the product unreasonably dangerous. Accordingly, the proof must support that no material change in that product occurred after leaving the manufacturer’s control.’ ” 3M Co. v. Johnson, 895 So.2d 151, 165 (Miss.2005) (quoting Clark v. Brass Eagle, Inc., 866 So.2d 456, 461 (Miss.2004)).

¶ 17. In their petition, the Forbeses draw our attention to the testimony of George Green, their expert witness who, despite admitting that he was not an expert on air bag design or the various factors or conditions of air bags, had extensive experience as an expert witness in cases involving questions which required engineering and mechanical knowledge and who had conducted research for his testimony in this ease. Also, testimony in the record provides us with enough proof of Mrs. Forbes’s injuries that the failure of the air bag to deflate could indeed be found unreasonably dangerous by a jury. During her time in treatment when she underwent intensive care, Mrs. Forbes experienced mental, speech, and physical rehabilitation, blood clots, surgery, and a coma. It is true that we have said, “[t]he mere fact that the accident occurred and plaintiff was injured of itself alone constitutes no evidence of any negligence or breach of other duty by General Motors, and does not raise a presumption that it was due to any act of negligence or other breach of duty.” Creel v. General Motors Corp., 233 So.2d 105, 109 (Miss.1970). We have also decided products liability cases, citing lack of credible evidence as a factor when no expert examined the allegedly defective product. Brass Eagle, 866 So.2d at 462. However, in this case, much more than just proof of the accident has been laid before us, and we cannot today find, based on lack of evidence, that the Forbes-es did not meet their burden on this issue to show any defective condition of the air bag.

C. Did the allegedly defective and unreasonably dangerous condition proximately cause the damages?

¶ 18. Having now found that there was sufficient evidence in the record to withstand a motion for a directed verdict on the issues of whether the product failed to perform as warranted, which is a defective “condition” of the product, thus satisfying subsection (a)(i), and whether the defective condition made the product unreasonably dangerous, thus satisfying subsection (a)(ii), we next address the issue of whether the defective condition of the product was the proximate cause of the damages. Again, the Forbeses carry the burden of showing that the defective condition that allegedly proximately caused the injuries here, the faulty air bag, existed at the time the product left GM’s hands. 3M Co. v. Johnson, 895 So.2d at 165. The proximate cause is the “cause which in natural and continuous sequence unbroken by any efficient intervening cause produces the injury and without which the result would not have occurred.” Delahoussaye v. Mary Mahoney’s, Inc., 783 So.2d 666, 671 (Miss.2001).

¶ 19. At trial, the Forbeses offered as their expert John Blunschi, a retired Louisiana police officer trained in accident reconstruction, or determining the cause of accidents. He testified that Mrs. Forbes would not have struck the windshield if the air bag had inflated. Because of Blunchi’s familiarity with air bags, and because Mrs. Forbes sustained' injuries that would not have occurred if the air bag had inflated, the Forbeses argued on appeal that it was evident the air bag’s failure to deploy was the proximate cause of Mrs. Forbes’s injuries. Again, we have held that proof of injury alone is insufficient, and that more is needed to satisfy the burden. Creel v. General Motors Corp., 233 So.2d at 109. In this case, more than mere proof of injury was given through other expert testimony, including that of Blunschi, and the burden was satisfied. Regardless, it is not necessary, or even permitted, for us to determine liability now. We need only decide today if GM should have been required to go forward and present its casein-chief. We find the answer to be yes.

¶ 20. Today, we are called on to decide whether the evidence presented by the Forbeses in this case is sufficient to submit the case to a jury — that, and nothing more. Giving the Forbeses the benefit of all favorable inferences which may reasonably be drawn from the evidence which we are to consider anew and in the light most favorable to the Forbeses, we cannot say the plaintiffs’ burden was not met or that reasonable jurors could not have differed in this case. We know, because the Forbeses have shown us, that Mr. Forbes bought this car partly because of the promise of a functional air bag, that the car was involved in a collision with extensive damage, that the air bag did not inflate, and that as a result, Mrs. Forbes suffered major injuries. In viewing the evidence in the light most favorable to the Forbeses, we find jurors could possibly differ on this question. Add to this favorable inferences one may draw from this evidence and we easily find that a jury question exists. The Forbeses may not have presented sufficient evidence to convince a jury of liability on the part of GM, but this is not the question before us. We need only decide if the evidence presented was of such quality and weight that fair-minded jurors in the exercise of impartial judgment might have reached different conclusions. We find this to be the situation today. The jury should have been given the opportunity to decide this question. With regard to Miss.Code Ann. § ll-l-63(a), we find this issue to have merit, and therefore we reverse and remand this case to the trial court.

II. WHETHER THE TRIAL COURT ERRED IN EXCLUDING PHOTOGRAPHS OF OTHER ACCIDENTS

¶ 21. Finally, the Forbeses argued on appeal to the Court of Appeals that the trial court erred in excluding from evidence photographs of other GM automobiles in accidents when the air bags did inflate. First, we note that on this issue, the Court of Appeals was not divided. The Court of Appeals’ dissenting opinion addressed only the first issue before us today. Also, on this issue, the Forbeses did not contest the holding of the Court of Appeals in either their motion for rehearing or their petition to us for Certiorari. Nonetheless, because this case is being remanded based on our disposition of Issue I, we briefly discuss this issue.

¶ 22. The standard of review for the admission or exclusion of evidence is abuse of discretion. Yoste v. Wal-Mart Stores, Inc., 822 So.2d 935, 936 (Miss.2002). Evidence of prior accidents can be used to show only two things, the existence of a dangerous condition and the knowledge of such a condition. Parmes v. Illinois Cent. Gulf R.R., 440 So.2d 261, 265 (Miss.1983) (relying on Illinois Central Railroad Company v. Williams, 242 Miss. 586, 605-06, 135 So.2d 831, 839 (1961)). Only upon a showing of “substantial similarity of conditions,” shall a trial court admit this evidence for these purposes. Id. “When evidence of other accidents or occurrences is offered for any purpose other than to show notice, the proponent of that evidence must show that the facts and circumstances of the other accidents or occurrences are ‘closely similar’ to the facts and circumstances at issue.” Johnson v. Ford Motor Co., 988 F.2d 573, 579 (5th Cir.1993) (internal citations omitted). The Johnson court went on to state that even when a substantial similarity of circumstances is established, the trial court nonetheless has broad discretion to exclude such evidence. Id.

¶ 23. The Forbeses assert that the trial judge abused his discretion by not allowing photographs of a Chevrolet Impala and a Pontiac Grand Prix involved in front-end accidents when the air bags did deploy. Because testimony at trial showed that the damaged parts on those cars were the same damaged parts on the Forbeses’ Delta 88, the Forbeses wanted the photographs admitted to prove that the collision their car sustained was “hard enough” to cause the air bag to be deployed. The evidence, in order to be admissible, must be “carefully qualified.” Sawyer v. Illinois Central Gulf Railroad Co., 606 So.2d 1069, 1075 (Miss.1992). We simply cannot find that the evidence of photographs in this case was carefully qualified. The Forbeses did not offer any testimony on speed or weather conditions of the accidents involving the Pontiac and Chevrolet, and both of those cars are a different make and model than the one involved this case. Additionally, neither car in the proffered photographs were involved in this type of rear-end accident. The Pontiac collided with another in its side, and the Chevrolet ran off the road and hit a clay bluff. The trial court and Court of Appeals were both correct in holding that the Forbeses did not meet their burden to show a substantial similarity in conditions existed between the accidents in the photographs and the one in which their car was involved. We cannot find that the facts and circumstances of these other accidents were closely similar to the facts and circumstances at issue here. This issue is without merit.

CONCLUSION

¶ 24. While we affirm the Court of Appeals on the issue of the exclusion of the photographs, our primary concern is whether the trial court erred in granting GM’s motion for a directed verdict at the close of the plaintiffs’ case-in-chief. The question for us is one of sufficiency of the evidence, and we do not find the evidence presented by the Forbeses in this case to be so insufficient as to merit the granting of a directed verdict. Considering the evidence anew, cast in the light most favorable to the Forbeses, we give them the benefit of all favorable inferences one may reasonably draw from the evidence. After doing so, we find the facts do not point “overwhelmingly” in favor of GM, as required by our holdings, but that reasonable jurors could have indeed arrived at a contrary verdict based on the evidence presented. See Cousar, 855 So.2d at 998. The trial judge erred in not presenting the jury with this issue. Thus, on this issue, we reverse the rulings of both the trial court and the Court of Appeals, and remand this case to the Circuit Court of Marion County for proceedings consistent with this opinion.

¶ 25. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART AND REMANDED TO THE CIRCUIT COURT OF MARION COUNTY.

WALLER, P.J., EASLEY, GRAVES AND RANDOLPH, JJ., CONCUR. DIAZ, J., CONCURS IN RESULT ONLY. DICKINSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SMITH, C.J., AND COBB, P.J.

DICKINSON, Justice,

Dissenting:

¶ 26. In my view, the arguments urged against the majority decision are so clearly correct that I am compelled to respectfully dissent. The majority brushes aside the statutory requirement that, in order to pursue a products liability claim for breach of express warranty, the Forbeses must have actually relied on the express warranty. It is my strong view that this case has been wrongly decided, and I respectfully dissent.

Justifiable Reliance

¶ 27. The Forbeses argue that because the owner’s manual for their Delta 88 expressly represented that the air bag would inflate during a frontal collision that was “hard enough,” GM breached an express warranty. They may be right, insofar as a claim for breach of contract is concerned. But for a cognizable products liability claim based upon breach of an express warranty, Mississippi Code Annotated Section 11 — 1—63(a) (i) (4) requires a finding that, “[t]he product breached an express warranty or failed to conform to other express factual representations upon which the claimant justifiably relied in electing to use the product.” Miss.Code Ann. § 11 — 1—63(a) (i)(4) (Rev.2002) (emphasis added). It is uncontested that the Forbes-es never read their owner’s manual. Clearly, they cannot now claim their decision to “use the product” was influenced in any way by the unread warranty. For the Forbeses to claim they relied on a warranty about which they didn’t even know defies logic. The majority addresses this hole in the Forbeses’ case by simply stating, “the fact that the Forbeses never read their owner’s manual is not fatal to their case. It is still possible to rely on assertions therein without having actually read them.” It may very well be possible to rely on assertions in an owner’s manual if one knows the assertions are there. But the record contains no indication the Forbeses knew anything at all about the assertions in the owner’s manual.

¶ 28. The majority — seemingly irritated by the statutory requirement of reliance— complains that “it would be quite unusual for a consumer to read an owner’s manual before buying a car. Even more unusual would be for a consumer to insist upon reading the manual before buying the automobile and requiring that an understanding of the manual be a condition precedent to purchasing the car.” Accurate though this observation may be, it is no answer to a bad statute to say we will ignore it. Stated differently, we have no constitutional power or right to refuse to enforce a perfectly valid and constitutional restriction placed by the Legislature on products liability litigation. The statute clearly requires reliance by the purchaser, and there can be no reliance on a statement about which the plaintiff knows nothing.

¶29. The majority contends that our decision in Palmer v. Volkswagen of America, Inc., 904 So.2d 1077 (Miss.2005), does not apply to this case. In Palmer, we held, “[t]he presence or absence of anything in an unread owner’s manual simply cannot proximately cause a plaintiffs damages.” Id. at 1084. Although Palmer involved a different products liability issue than the one before us today, the reasoning behind our statement in Palmer applies equally to express warranty claims. The gravamen of a breach of warranty claim in products liability litigation is that the plaintiffs harm must have resulted, at least in part, from the plaintiffs reliance on what the warranty states, and when a plaintiff specifically bases such a claim on statements in an unread owner’s manual, “nothing in the manual can be said to have contributed to the accident or to damages in [the] case.” Id. at 1086. See also Foster v. Copiah County Co-op., 246 Miss. 218, 148 So.2d 702, 707 (1963) (“If a statement was unknown to the buyer at the time the sale was completed, it is obvious that there can be ... [no] detrimental reliance.... ”); Austin v. Will-Burt Co., 232 F.Supp.2d 682, 687 (N.D.Miss.2002), aff'd, 361 F.3d 862 (5th Cir.2004) (plaintiffs failed to prove they relied on manufacturer’s statements when purchasing the mast, so court granted summary judgment on express warranty claim).

¶ 30. The majority correctly acknowledges that statements made by the Mack Grubbs Motors’ salesman and relied on by the Forbeses cannot ground any claims against GM. Despite its declarations to the contrary, though, the salesman’s statements are the precise express assertions the majority uses to find the Forbeses satisfied the first element of their breach of warranty claim. The majority finds, “[t]he salesman was merely relaying a fact GM represented in their owner’s manual, that the car he was buying had a working air bag,” and this was the warranty relied upon by the Forbeses. This assertion by the majority is pure speculation. The record contains not one scrap of support for the proposition that anything said by the salesman was prompted by anything in the owner’s manual. Indeed, the record does not even suggest the salesman ever read the owner’s manual. In addition, even if the Forbeses relied on the salesman’s statement that the Delta 88 had an air bag, the salesman’s statement was far different from the statement in the manual on which the Forbeses rely for their breach of warranty claim. The Forbeses never read and were never told that the air bag would inflate in frontal crashes that were “hard enough.” This statement was unknown to the Forbeses’ until this litigation, and it certainly did not play any part in the Forbes’s decision to use the product, as required by the statute. They cannot now claim they justifiably relied on this statement in the owner’s manual which they never read and about which they were never told.

¶ 31. For the reasons stated, I respectfully dissent, and would affirm the decision of the Circuit Court of Marion County.

SMITH, C.J., AND COBB, P.J., JOIN THIS OPINION.

      . The majority has apparently been misled by the fact that, in contract claims for breach of warranty, there is no requirement that the consumer rely on, or even know about, a warranty. Today’s case, however, is not a breach of contract action but rather a products liability claim, controlled by statute.