author: IRVING, J., for the court.

text:
    DEPENDANTS OF George REID, Jr., Appellant, v. CITY OF CANTON, Mississippi; Mayor of City of Canton, Alice Scott, In Her Official and Individual Capacities; the Police Chief for the City of Canton, Luke Gordon, In His Official and Individual Capacities; and the Board of Aldermen of the City of Canton, Mississippi, William Mosby, Jon Flynn, Charles Weems, Louis Smith, Kenneth Jones, Robbie Johnson and William Truly, All In Their Official and Individual Capacities, Appellees.
    No. 2002-CA-00721-COA.
    Court of Appeals of Mississippi.
    Oct. 7, 2003.

      Michael H. Steele, Kosciusko, attorney for appellant.
    Gary E. Friedman, Jackson, Chelye P. Amis, attorneys for appellee.
    Before KING, P.J., BRIDGES and IRVING, JJ.
   IRVING, J., for the court.

¶ 1. The Circuit Court of Madison County granted summary judgment against the dependants of George Reid, Jr. in a wrongful death suit against the City of Canton, the mayor, police chief, and each member of the board of aldermen of the City of Canton, all in their individual capacity (municipal officials). The Reid de-pendants alleged that the municipal officials were negligent in failing to protect George Reid, Jr. from murder by a released arrestee. The municipal officials filed a motion to dismiss alleging that they were under no duty to protect George from murder, that they were protected from liability by the doctrine of qualified immunity, and that there was no causal connection between their conduct and George’s death. Feeling aggrieved, the Reid dependants now appeal and allege that the trial judge erroneously granted the motion for summary judgment.

¶ 2. Discerning no reversible error, this Court affirms the trial court’s dismissal of the complaint.

FACTS

¶ 3. George Reid was a security guard employed at an apartment complex in Madison County, Mississippi. While performing employment duties, George was required to subdue Marcus Reed by spraying him with either pepper spray or mace. Officers of the Canton Police Department arrived soon thereafter and took Marcus into custody.

¶ 4. At some point, Marcus, according to the Reid dependants’ complaint, “had stated he would kill George Reid, Jr.” The complaint further alleged that, despite the fact that Marcus had made such statement, the Canton Police Department released Marcus from custody. Sometime after his release, Marcus did attack and murder George.

¶ 5. In their lawsuit, the Reid depen-dants alleged violations of 42 U.S.C. §§ 1981, 1982, 1983, 1984, 1986 and 1988. They also contended that the municipal officials caused George’s death due to violations of the City of Canton’s police policies and procedures. The complaint further alleged negligence by all municipal officials. Lastly, the dependants argued violations of George’s due process, equal protection, and property rights.

¶ 6. The lawsuit was initially filed in the Circuit Court of Hinds County but was removed to the United States Federal Court for the Southern District of Mississippi. After removal to federal court, the municipal officials filed a motion to dismiss which the district court granted in part and denied in part. Specifically, the district court dismissed all of the Reid depen-dants’ federal claims with prejudice and dismissed the negligence claim against the defendants in their official capacities because the Reid dependants failed to comply with the statutory notice provision of the Mississippi Tort Claims Act. The district court then remanded the Reid depen-dants’ negligence suit against the municipal officials in their individual capacity to the Circuit Court of Hinds County. The parties then agreed to transfer venue to Madison County.

¶ 7. After remand, the municipal officials filed a motion to dismiss the negligence claims against them in their individual capacity. They alleged that the lawsuit failed to state a claim upon which relief could be granted, that they were under no duty to provide protection to George at the time of his death, that no causal connection existed between their conduct and George’s death, and that they were entitled to qualified immunity. Attached to the motion to dismiss were affidavits from the municipal officials attesting to the fact that neither of them had any knowledge of the alleged threat made by Marcus on George’s life.

¶ 8. The Reid dependants responded by arguing that the municipal officials had acted with reckless disregard for George’s safety. No affidavits, setting forth additional facts, were attached to their response, leaving the facts as alleged in their complaint. However, in a memorandum to the trial court, they argued that the municipal officials failed to hold, control, and contain Marcus when there was evidence of a clear intention of immediate harm to George. The Reid dependants did not elaborate on what this evidence was. The trial court disagreed with the Reid depen-dants’ contentions and, treating the Rule 12(b)(6) motion as a motion for summary judgment, dismissed their suit with prejudice.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶9. A Rule 12(b)(6) motion to dismiss raises an issue of law. Duncan ex rel. Duncan v. Chamblee, 757 So.2d 946, 948(¶ 10) (Miss.1999) (citing Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990)). An appellate court “conducts de novo review on questions of law.” Id. (citing Miss. Transp. Comm’n v. Fires, 693 So.2d 917, 920 (Miss.1997)).

¶ 10. “When considering a motion to dismiss, the allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim.” Duncan, 757 So.2d at 948(¶ 11) (citing Butler v. Bd. of Supervisors for Hinds County, 659 So.2d 578, 581 (Miss.1995)).

¶ 11. Section 11-46-9, which provides for qualified immunity, states in pertinent part that:

a governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim ... arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury.

Miss.Code Ann. § 11 — 46—9(l)(c) (Rev.2002) (emphasis added).

¶ 12. The Reid dependants argue that granting summary judgment was erroneous. They maintain that there were facts set forth in the pleadings whereby they could have prevailed and their case should have been allowed to be heard by a trier of fact. Moreover, they contend that each of the defendants had a duty to protect George from Marcus and that they were negligent in their reckless disregard for the safety and well-being of George’s life. Ergo, they are not entitled to qualified immunity under section 11-46-9.

¶ 13. Conversely, the municipal officials assert the dismissal was proper because they did not breach any legal duty to George; thus, they did not cause his death. They also maintain that the dependants did not assert any facts on which liability could be based; therefore, there was a failure to state a claim upon which relief could be granted. They insist that the trial judge was correct to find that qualified immunity applied in the present case.

¶ 14. In resolving this matter, this Court must first analyze the applicability of qualified immunity to the facts. The purpose of the public official qualified immunity doctrine is to encourage and safeguard public officials in their ability to exercise their discretion. Boston v. Hartford Ace. & Indem. Co., 822 So.2d 239, 251(¶ 42) (Miss.2002). A public official is shielded by qualified public official immunity unless:

his breach of a legal duty causes injury and (1) that duty is ministerial in nature, or (2) that duty involves the use of discretion and the governmental actor greatly or substantially exceeds his authority and in the course thereof causes harm, or (3) the governmental actor commits an intentional tort.

McFadden v. State, 542 So.2d 871, 877 (Miss.1989). “Beyond that, a governmental official has no immunity when sued upon a tort that has nothing to do with his official position or decision-making function and has been committed outside the course and scope of his office.” Id. (citing Grantham v. Miss. Dep’t of Corr., 522 So.2d 219, 225 (Miss.1988)).

¶ 15. In our case, before either of the municipal officials may be found negligent, thereby entitling the Reid depen-dants to recover, the Reid dependants must show the existence of a legal duty owed to them by the municipal official. Gant v. Maness, 786 So.2d 401, 405(¶ 15) (Miss.2001) (citing J.C. Penney Co. v. Sumrall, 318 So.2d 829, 832 (Miss.1975)). To determine whether the qualified immunity defense is applicable, the facts of each case must be considered to determine whether there exists a breach of a legal duty that caused the injury. Sykes v. Grantham, 567 So.2d 200, 211 (Miss.1990).

¶ 16. The Reid dependants fervently insist that the municipal officials owed a legal duty to protect George from injury by Marcus. It is true that the municipal officials are charged with the responsibility of providing police protection for the citizens of the City of Canton and that this responsibility extended to the Reid depen-dants’ decedent. But the municipal officials are not guarantors of the safety of the general public. Hence, any assertion that the municipal officials breached a duty to George because they failed to guarantee his safety and well-being is unrealistic and untenable.

¶ 17. The mayor, the police chief, and the aldermen were not present when Marcus threatened the life of George; therefore, they were unaware of the threat. Presumably, those officers who took Marcus into custody heard the threat on George’s life. However, the complaint does not specify when, or to whom, the threat was made. In any event, assuming arguendo that some unidentified officer of the Canton Police Department heard the threat and that the City of Canton is charged with knowledge of the threat, it does not necessarily follow that liability should attach to the City of Canton and the municipal officials.

¶ 18. For sure, police officers, in the process of making daily arrests, must hear all kinds of threats being made by arres-tees, especially while the arrestees are in the heat of the moment. The inquiry must be how serious was the threat. What evidence, if any, did the police have which would suggest that this threat was not just another garden variety threat being made by a disgruntled arrestee? Based on the information available to the police, was it unreasonable for them to assume that Marcus was simply engaging in loose talk? Even if liability should attach in this instance, it would attach to the municipal officials in their official, not individual capacity. The complaint did not allege one act undertaken, or failed to be taken, by these municipal officials in their individual capacity which would operate to create some liability for George’s death. Moreover, we cannot imagine any set of facts within the scope of the complaint which would hold the municipal officials individually liable for George’s death. To attach such individual liability to these officials would surely result in a miscarriage of justice.

¶ 19. The Reid dependants cite no authority which compels a finding that these municipal officials, in their individual capacity, owed a legal duty to George. There can be no breach of a legal duty if no duty exists. It is the Reid dependants’ duty to provide authority and support for the issues which they present. Rigby v. State, 826 So.2d 694, 707 (¶ 44) (Miss.2002) (citing Hoops v. State, 681 So.2d 521, 526 (Miss.1996)). “Issues of error which are unsupported by citation or authority are considered abandoned.” Id. (citing Thibodeaux v. State, 652 So.2d 153, 155 (Miss.1995)). “Failure to cite relevant authority obviates this Court’s obligation to review such issues.” Simmons v. State, 805 So.2d 452, 487 (¶ 90) (Miss.2001) (citing Williams v. State, 708 So.2d 1358, 1362-63 (¶ 22) (Miss.1998)).

¶ 20. In summary, we find that the municipal officials, acting in their individual capacity, owed no duty to George. We further find that the complaint failed to allege any facts which would indicate that these municipal officials, in the exercise of their governmental discretion, greatly or substantially exceeded their authority, or acted with reckless disregard for George’s safety, and in the course thereof caused harm to George. Neither do we find any course of conduct by these municipal officials which would be tantamount to intentionally causing George’s death. Consequently, we affirm the trial judge’s grant of summary judgment.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS AND CHANDLER, JJ., CONCUR. GRIFFIS, J., NOT PARTICIPATING.

      . The trial court's order was styled “Order Granting Summary Judgment” even though the municipal officials filed a Rule 12(b)(6) motion to dismiss.

      . Rule 12(c) of the Mississippi Rules of Civil Procedure allows the trial court to treat a motion for judgment on the pleadings as a motion for summary judgment if matters outside the pleadings are presented to and not excluded by the trial court.


source: Caselaw Access Project

license: Public Domain

text:
    Hattie Pearl BROWN, Appellant, v. Edward T. WARREN, M.D. and Carolyn L. Bigelow, M.D., Appellees.
    No. 2002-CA-00274-COA.
    Court of Appeals of Mississippi.
    Oct. 21, 2003.

      Dana J. Swan, Clarksdale, attorney for appellant.
    Joseph L. McNamara, Jackson, Stephen P. Kruger, Jan F. Gadow, Ridgeland, John Michael Coleman, Saltillo attorneys for ap-pellee.
    Before KING, P.J., BRIDGES and IRVING, JJ.
   IRVING, J., for the court.

¶ 1. Mrs. Hattie Pearl Brown filed a medical malpractice suit against Drs. Edward T. Warren and Carolyn Bigelow. The doctors responded with a motion for summary judgment, and the Circuit Court of Hinds County granted the motion. Mrs. Brown, arguing in this appeal that the trial court erred in determining that the doctors were employees of the University of Mississippi Medical Center and not independent contractors, challenges the propriety of the circuit court’s decision. Mrs. Brown also argues that the trial court erred in not finding that the doctors’ possession of liability insurance waived sovereign immunity to the extent of their insurance.

¶ 2. We reject these arguments and affirm the trial court.

FACTS

¶ 3. On September 11, 1992, Mrs. Hattie Pearl Brown was admitted to the University of Mississippi Medical Center (UMMC) for chest pain. Upon being admitted, Mrs. Brown came under the care of Dr. Warren, a cardiovascular surgeon. An evaluation of Mrs. Brown revealed that she suffered from acute heart disease. She subsequently began treatment of her heart problem with medication and other nonsurgical procedures. When this treatment did not improve Mrs. Brown’s condition, she underwent heart bypass surgery. During her initial treatment and surgery, Mrs. Brown’s primary physician was Dr. Warren.

¶ 4. Several days after the operation, Mrs. Brown experienced an abnormal decrease in the number of platelets in her blood. At this point, Dr. Warren referred Mrs. Brown to Dr. Carolyn Bigelow, a hematologist. Upon evaluating Mrs. Brown’s reduced platelet count, Dr. Bige-low diagnosed Mrs. Brown as having thrombocytopenia which allegedly evolved from ingestion of Heparin, one of the medications that was prescribed for Mrs. Brown during treatment of her heart disease. The thrombocytopenia resulted in the formation of blood clots which impeded the blood flow to Mrs. Brown’s lower extremities. This occurrence necessitated the amputation of both of Mrs. Brown’s legs above the knee.

¶ 5. Mrs. Brown filed a complaint on September 9, 1994, against Dr. Warren, Dr. Bigelow and others for medical malpractice. Drs. Warren and Bigelow both answered the complaint. In his answer, Dr. Warren affirmatively asserted that he was acting within the scope of his employment with UMMC and that, as a result, he was statutorily immune from liability. He later filed a motion to dismiss, or in the alternative, for summary judgment, asserting sovereign immunity. Dr. Bigelow subsequently joined this motion and was also granted permission to amend her answer to assert sovereign immunity as an affirmative defense. The Hinds County Circuit Court granted the motion and entered a final judgment and order dismissing both Drs. Warren and Bigelow with prejudice. Other facts will be related during the discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 6. The grant of summary judgment is proper if there is no genuine issue of material fact. M.R.C.P. 56(c). The standard of review of a trial court’s grant of a motion for summary judgment is de novo. Corey v. Skelton, 834 So.2d 681, 684(¶ 7) (Miss.2003). The burden of demonstrating that there is no genuine issue of material fact falls upon the party requesting the summary judgment. Id. The court must carefully review all evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.— in the light most favorable to the party against whom the motion for summary judgment is made. Id.

When a motion for summary judgment is made and supported as provided in Rule 56, an adverse party may not rest upon the mere allegations or denials of his pleadings; his response must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. If any triable issues of fact exist, the lower court’s decision to grant summary judgment will be reversed. Otherwise, the decision is affirmed.

Id. at 684 (citing Miller v. Meeks, 762 So.2d 302, 304(¶ 3) (Miss.2000)).

¶ 7. In the resolution of the issue before us, we first look to see which, if any, of the statutory enactments on sovereign immunity apply to the case sub judice. The answer to this inquiry will depend on (1) when the alleged acts of negligence occurred, and (2) what law on sovereign immunity was in effect when those alleged acts of negligence occurred. In other words, the Mississippi law on sovereign immunity, if any, which was in effect during the occurrence of the alleged negligent acts govern the legal consequences flowing therefrom. Therefore, this Court must ascertain the time frame in which the alleged negligent acts of Drs. Warren and Bigelow occurred, as substantiated by the summary judgment evidence.

¶ 8. Both parties concede that any acts of negligence occurring in this case on or after September 16, 1992, would be governed by Mississippi’s sovereign immunity law as enacted by the 1992 special session of the legislature. However, Mrs. Brown asserts that the aforementioned statutory provisions would not govern any alleged acts of negligence committed by Dr. Warren before September 16, 1992. Consequently, she argues that the trial court erred when it granted sovereign immunity to Dr. Warren for any alleged acts of negligence occurring before September 16, 1992, because no sovereign immunity existed or was in effect during this period of treatment.

¶ 9. Mrs. Brown explains that she was admitted to UMMC on September 11, 1992, and was under Dr. Warren’s care from this date through September 15, 1992. She asserts that Dr. Warren committed various acts of negligence during this period. Mrs. Brown argues that there was no sovereign immunity after Presley v. Mississippi State Highway Commission, 608 So.2d 1288 (Miss.1992) (holding that section 11^46-6 was unconstitutional as an attempt to freeze the common law of Mississippi as it existed in 1982) until the legislature, through a special session, enacted new laws to supplant that which had been rendered unconstitutional. Mrs. Brown asserts that this legislation did not become effective until September 16, 1992; therefore, no sovereign immunity existed between the supreme court’s handing down of Presley on August 31, 1992, and September 16, 1992, the date on which the special session legislation became effective.

¶ 10. Mrs. Brown is mistaken in her position as to when sovereign immunity was no longer available to government entities in this state. It is true that the Presley court announced that sovereign immunity would not be extended beyond the date of the decision which was August 31, 1992, but in the case of Mississippi Transportation Commission v. Allday, 726 So.2d 563, 566(¶ 9) (Miss.1998), the Allday court held that the Presley ruling did not become effective until the petition for rehearing was denied. That date was December 3, 1992. Id. at 566. Therefore, sovereign immunity was available to Drs. Warren and Bigelow throughout the period of their treatment of Mrs. Brown, assuming of course they were employees of UMMC. That is the matter we next address.

¶ 11. Both Drs. Warren and Bigelow were under contract with the Board of Trustees of State Institutions of Higher Learning for the period of Mrs. Brown’s treatment. Dr. Warren was hired as an associate professor of surgery in the school of medicine at an annual salary of $62,685 for the period beginning July 1, 1992 and ending June 30, 1993. Dr. Bigelow was hired as an assistant professor of medicine in the school of medicine at an annual salary of $57,750 for the period beginning July 1, 1992 and ending June 30, 1993. Each contract provided that the doctors would be permitted to earn additional income from medical practice and could retain one hundred percent of earnings from medical practice up to a total income of $120,000. Any income in excess of this amount would be divided evenly between UMMC and the doctors.

¶ 12. The criteria for determining whether a physician employed at UMMC is an employee or an independent contractor for purposes of immunity is set forth in Miller v. Meeks, 762 So.2d 302 (Miss.2000). According to Miller, the factors to be examined and weighed are: (1) the nature of the function performed by the employee; (2) the extent of the state’s interest and involvement in the function; (3) the degree of control and direction exercised by the state over the employee; (4) whether the act complained of involved the use of judgment and discretion; and (5) whether the physician received compensation, either directly or indirectly, from the patient for professional services rendered. Id. at 310(¶ 20). These factors must be applied on a case by case basis, for a physician may wear two hats.

¶ 13. It is clear from the evidence in this case that both Drs. Warren and Bige-low wore two hats, one as employees of UMMC and one as physicians engaged in a separate private practice. Therefore, our task is to determine which hat Drs. Warren and Bigelow were wearing during their treatment of Mrs. Brown. In our effort to accomplish this task, we next discuss the Miller factors.

1. The Nature of the Function Performed by the Employee

¶ 14. In the case sub judice, Mrs. Brown contends that because Dr. Warren was actively practicing surgery, made the decision to keep her on Heparin, was the chief surgeon for her operative procedure, prescribed drugs for her, and continued to follow her treatment, the nature of the function he performed weighs in favor of finding that he was an independent contractor. She makes no such argument in regard to Dr. Bigelow.

¶ 15. Drs. Warren’s and Bigelow’s duties in their capacity as professors with UMMC included classroom and practical instruction of medical students and residents, treatment of patients at UMMC and affiliate sites, and other duties as assigned by UMMC. In their supervisory roles, Drs. Warren and Bigelow monitored and advised fellows and medical doctors certified in internal medicine who are studying at UMMC to obtain a specialty in the medical field. In some instances, Drs. Warren and Bigelow would themselves engage in the patients’ treatment or surgical procedures while fellows accompanied them and observed.

2. The Extent of the State’s Interest and Involvement in the Function

¶ 16. Regarding this second factor, Mrs. Brown argues that since Dr. Warren made decisions concerning Mrs. Brown’s medical treatment, he must be an independent contractor rather than an employee. She makes no mention of Dr. Bigelow or what degree of interest the state has in the role played by Dr. Bigelow.

¶ 17. It is not debatable that the State of Mississippi has a keen interest in seeing to it that adequate medical services are available to its citizens. According to Mississippi Code Annotated section 37-115-31 (1972), the operational purpose of UMMC is to “serve the people of Mississippi generally” as well as “provide care and services to the indigent and persons on Medicaid.” By providing cardiovascular treatment and surgery to Mrs. Brown, a Medicaid/Medicare patient, Dr. Warren was carrying out this operational purpose. Additionally, Dr. Bigelow provided services and treatment to Mrs. Brown relating to her blood circulation. Her job was also within the operational purposes of the hospital.

¶ 18. Moreover, UMMC was established as a teaching hospital. Miss.Code Ann. § 87-115-25 (Rev.2001). Drs. Warren and Bigelow were engaged in teaching and training residents while providing medical and surgical services to Mrs. Brown. Our supreme court has acknowledged the state’s interest in cases of this nature by stating:

It is very important that faculty physicians supervise the progress of interns and residents. This provides the training necessary to ensure that Mississippi has a ready pool of competent physicians. Likewise, the resident must be able to practice medicine under the guidance of a learned physician in order to master his or her profession. The State has a strong interest in maintaining such a practical and educational environment, meeting the needs of both the physicians and the patients.

Sullivan v. Washington, 768 So.2d 881, 885(¶ 19) (Miss.2000).

3. The Degree of Control and Direction Exercised by the State over the Employees

¶ 19. Mrs. Brown argues that the state lacks control over Drs. Warren and Bige-low because an attending physician has the final say with respect to medical procedures and these doctors, as attending physicians, made such decisions in their treatment of Mrs. Brown. She therefore concludes that the two doctors are independent contractors.

¶ 20. While it is true that the doctors made the necessary medical decisions regarding Mrs. Brown’s treatment, the Board of Trustees of State Institutions of Higher Learning exercised a reasonable amount of control over Drs. Warren and Bigelow. The doctors were not allowed to keep all of the income which they made above their base salary. UMMC had the right to direct the details and manner of their work schedules and the right to supervise and inspect the services provided by both doctors. It additionally furnished the means and instruments necessary for their work and the patients for whose care they were paid their contractual salaries. Moreover, the state controlled the hospital premises and had the power to terminate the doctors’ contracts.

¶ 21. The fact that Drs. Warren and Bigelow use their special training and medical judgment is inconsequential. That fact alone does not necessarily make the doctors independent contractors. A certain amount of discretion is necessary for the doctors to perform their duties as a physician.

A Whether the Act Complained of Involved the Use of Judgment and Discretion

¶ 22. Mrs. Brown asserts that, based on the medical decisions Drs.Warren and Bigelow regularly make as physicians, this factor demonstrates that the doctors are independent contractors instead of employees of UMMC. However, our supreme court has previously stated that, while the amount of judgment and discretion a doctor exercises in the treatment, observation, and diagnosis of patients is a consideration, it is not determinative of his status. See Sullivan, 768 So.2d at 885(1122). In fact, our supreme court also pointed out in Sullivan that:

Virtually every act performed by a person involves the exercise of some discretion. Obviously, a professional necessarily retains a significant amount of discretion in the operation of his profession. This is especially true of physicians who are bound to exercise their judgment without interference from others. The Hippocratic Oath requires that the physician “use [his] power to help the sick to the best of [his] ability and judgment.” Section 6 of the American Medical Association’s “Principles of Medical Ethics” states, “A physician should not dispose of his services under terms or conditions which tend to interfere with or impede the free and complete exercise of his medical judgment and skill....”

Id. Therefore, in accordance with the supreme court’s decision in Sullivan, the fact that Drs. Warren and Bigelow exercised their professional judgment and discretion through their teaching and in their treatment of patients, does not mean that they are independent contractors.

5. Whether the Physicians Received Compensation, Either Directly or Indirectly, from the Patient for Professional Services Rendered

¶ 23. Mrs. Brown asserts that this factor indicates that the doctors are independent contractors. To support her assertion, she proceeds to recite the specifics of Dr. Warren’s contract and points out that Dr. Bigelow testified that Medicaid and Medicare patients are a source of income for her association. Mrs. Brown is correct in this assertion. However, the fact that Medicaid and Medicare patients are a source of income for the doctors’ association does not prove that, in this specific case, the doctors received additional remuneration for the services rendered to Mrs. Brown. In this regard, we note that Dr. Warren stated in his affidavit that:

At all times during my treatment of Mrs. Brown, including the surgery performed on her, I was acting as a staff cardiothoracic surgeon for UMC and did not have a private-patient relationship with Mrs. Brown; rather, I was serving a public function and providing care for a Medicaid patient. Also, I did not choose Mrs. Brown as a patient, nor did she choose me as a physician. In regard to compensation, Mrs. Brown was a Medicaid patient from whom I received no remuneration for my professional services.

These assertions by Dr. Warren were not rebutted. While Dr. Warren did not say that he did not receive any remuneration for his services, only that he did not receive any remuneration from Mrs. Brown, we do not find any evidence in the record that either Dr. Bigelow or Dr. Warren, directly or indirectly, billed the government for the services that they rendered to Mrs. Brown.

¶ 24. In weighing all the Miller factors and applying them to the case at bar, we cannot say that a genuine issue of material fact exists as to whether Drs. Warren and Bigelow were acting as independent contractors during the time of their treatment of Mrs. Brown. The un-controverted evidence is that they were employees of UMMC. In fact, Mrs. Brown does not allege that the doctors wore two hats and that, at the pertinent time in question, they were wearing their private hat. Her allegation is that the doctors were independent contractors period. While it is clear in the record that the doctors’ contracts allowed them to wear two hats and that they did wear two hats in that they treated patients in a private clinic and received remuneration for the treatment, there is simply no evidence in the record placing in issue the nature of the hat worn by these doctors during the treatment of Mrs. Brown.

¶ 25. Paul Trussell, the director of human resources for UMMC, stated in an affidavit in support of the motion for summary judgment on Dr. Bigelow’s behalf that all treatment provided to Mrs. Brown by Dr. Bigelow was provided in the course and scope of Dr. Bigelow’s employment with the Board of Trustees of State Institutions of Higher Learning. Nothing in the record refutes this allegation. As we have previously observed, there is a plethora of evidence that the doctors were employees of UMMC. We therefore find no merit in Mrs. Brown’s argument on this issue.

¶ 26. Having determined that Drs. Warren and Bigelow were employees of UMMC and that there is no evidence indicating that they were acting in a different capacity when they treated Mrs. Brown, we turn to the sovereign immunity law that was in effect at that time. The applicable statute is Mississippi Code Annotated section 11-46-7(2) as amended in 1991. When the alleged acts of medical malpractice occurred, section 11^16-7(2) read as follows:

From and after July 1, 1992, as to the state, and from and after October 1, 1992, as to political subdivisions, an employee may be joined in an action against a governmental entity in a representative capacity if the act or omission complained of is one for which the governmental entity may be liable, but no employee shall be held personally liable for acts or omissions occurring within the course and scope of the employee’s duties.

Miss.Code Ann. § 11-46-7(2) (Supp.1991) (emphasis added).

However, Mississippi Code Annotated section 11-46-5 as amended in 1991 states that “it shall be a rebuttable presumption that any act or omission of an employee within the time and at the place of his employment is within the course and scope of his employment.”

¶ 27. Mrs. Brown argues that she has overcome the presumption that Drs. Warren and Bigelow were acting within the course and scope of their employment. We failed to locate any evidence in the record in opposition to the motion for summary judgment which persuades us that Mrs. Brown succeeded in either overcoming the presumption or creating a genuine issue as to whether the presumption had been overcome. As we have already observed, there is much uncontradicted evidence that the doctors were employees of UMMC at the time the alleged acts of negligence occurred.

Liability Insurance

¶ 28. Finally, Mrs. Brown argues that the existence of liability insurance waives Dr. Warren’s and Dr. Bigelow’s immunity to the extent of their coverage. She relies on Pickens v. Donaldson, 748 So.2d 684 (Miss.1999) as authority. She explains that, based upon Pickens, the Mississippi Torts Claims Act does not apply to this action and that the now repealed Mississippi Code Annotated section 11-46-16(2) applies instead. We agree with Mrs. Brown that the Mississippi Tort Claims Act does not apply since that Act became effective April 1,1993, and the acts here occurred in September 1992. Mrs. Brown is also correct that the now repealed section, 11-46-16(2), applies, but this fact provides her no relief because the section, by its plain terms, spoke to the liability insurance of the governmental entity, not the liability insurance of the governmental employee. That section, as then written, read in pertinent part as follows:

If any governmental entity has in effect liability insurance to cover wrongful or tortious acts or omissions of such governmental entity or its employees, such governmental entity may be sued by anyone affected to the extent of such insurance carried.

See Pickens, 748 So.2d at 687(¶ 11) (emphasis added).

¶29. Based upon the evidence, before this Court, we affirm the ruling of the trial court granting summary judgment to Drs. Warren and Bigelow on the grounds that they were employees of UMMC during their treatment of Mrs. Brown, and thus immune from liability. We further find no merit in Mrs. Brown’s argument regarding the waiver of sovereign immunity' due to the doctors’ acquisition of liability insurance.

¶ 30. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: IRVING, J., for the Court.

text:
    Jimmy E. CAMPBELL, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00626-COA.
    Court of Appeals of Mississippi.
    Oct. 28, 2003.

      Anthony J. Buckley, Laurel, attorney for appellant.
    Office of The Attorney General By Jean Smith Vaughan, attorney for appellee.
    Before KING, P.J., BRIDGES and IRVING, JJ.
   IRVING, J., for the Court.

¶ 1. Jimmy E. Campbell was convicted in the Circuit Court of Jones County by a jury for causing the death of another while driving negligently and while intoxicated. The trial judge sentenced Campbell to twenty-five years in the custody of the Mississippi Department of Corrections with five years suspended and denied Campbell’s post-trial motion for a judgment notwithstanding the verdict or in the alternative for a new trial. Feeling aggrieved, Campbell appeals and argues that the State failed to prove venue and that the evidence presented at trial was insufficient to establish the crime for which he was convicted.

¶ 2. Detecting no reversible error, this Court affirms the trial court’s judgment.

FACTS

¶ 3. Three youths were traveling along First Avenue in Laurel, Mississippi, around 10 p.m. Two of the youths, Laconia Evans and her nephew, Jeremy Bonner, walked while Matthew Taylor, also Evans’s nephew, rode a bicycle behind them. While traversing a hill with their backs to oncoming traffic, the youths were hit from behind by a vehicle. After the car passed, Taylor blacked out. When he awakened, he saw Evans lying in the middle of the road and Bonner lying on the side of the road. Bonner died from the impact. Taylor also saw the person who was driving the vehicle that had hit them, for the driver stopped and exited the vehicle. However, Taylor was unable to identify the person.

¶ 4. Eric Varnado, an officer with the Laurel Police Department (hereinafter referred to as the LPD), investigated the accident involving Taylor, Evans, and Bonner. From dispatch, Officer Varnado received a description of the vehicle, the license plate number, and an address to which the license plate was registered. When Officer Varnado arrived at the accident scene, a witness also gave him the license plate number of the vehicle that hit the youth. The number matched the license plate number previously provided to him. Officer Varnado then cruised on First Avenue in an attempt to locate the suspected vehicle. When Officer Varnado arrived at the address to which the license plate was registered, the vehicle in the driveway and the license plate on it matched the description of the vehicle and license plate given him by dispatch.

¶ 5. Officer Varnado approached the residence and came into contact with a male standing next to the vehicle. Officer Var-nado confronted the male and discovered that he was Jimmy E. Campbell. Campbell admitted that he had driven the vehicle that night. Officer Varnado observed that Campbell had a strong odor of alcohol, his breath smelled of alcoholic beverage, his speech was slurred, and he had a staggered stance. Varnado placed Campbell into custody to investigate a possible DUI and also Campbell’s possible involvement in the hit and run accident.

¶ 6. Other germane facts will be related during the discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 7. In his first issue, Campbell argues that the State failed to prove venue, which is an essential element of the crime. Campbell points out that Jones County has two judicial districts and that the State failed to put forth any evidence that the crime occurred in the Second Judicial District of Jones County.

¶ 8. Proof of venue, as any other element of an offense, must be made beyond a reasonable doubt. State v. Fabian, 263 So.2d 773, 776 (Miss.1972).

¶ 9. The State called victims Taylor and Evans to testify that they were walking northbound on First Avenue when they were struck by a vehicle on the night in question. Officer Varnado, as well as Detective Layne Bounds, testified as to the area of Jones County in which the accident took place. Detective Bounds in particular testified as to the description of First Avenue including the width of the street, the shoulders of the street and lane markings.

¶ 10. It is undisputed that proof of venue is indispensable to a criminal trial and it may be proved by direct or circumstantial evidence. Smith v. State, 646 Solid 538, 541 (Miss.1994). “The local jurisdiction of all offenses, unless otherwise provided by law, shall be in the county where committed.” Id. (citing Jones v. State, 606 So.2d 1051, 1055 (Miss.1992)).

¶ 11. In this ease, several witnesses testified during the State’s case-in-chief that the crime took place in Laurel, Jones County, Mississippi. It is not open to dispute that Laurel is located in the Second Judicial District of Jones County. We find that sufficient evidence was presented during the State’s case-in-chief to establish the requisite venue.

¶ 12. Campbell alleges in his next issue that reasonable fair-minded jurors could not have found him guilty of negligently killing another while under the influence of intoxicating liquor. Campbell argues that what happened on the night in question was an unavoidable accident and that his driving intoxicated was not a contributing factor to the accident. In other words, Campbell challenges the sufficiency of the evidence offered in support of his conviction.

¶ 13. Campbell undergirds his argument that what happened was an unavoidable accident due to the fact that the victim and his companions wore dark clothing and were walking in the street with their backs to oncoming traffic. Furthermore, Campbell explains that the area of First Avenue where the accident occurred contains a series of hills, that the street narrows at certain points, and that the street was unmarked and without sidewalks. Campbell implies that the physical layout of the street — coupled with the fact that the victims were wearing dark clothing, walking with their backs to traffic, and walking in the street in the path of traffic — made the accident not only unavoidable but inevitable. Campbell emphasizes a defense witness’s testimony that she did not observe Campbell speeding on the night of the accident and that he was driving straight in the center of his lane. Thus, Campbell maintains that there was no evidence that put his car off the side of the road.

¶ 14. In Mississippi, there is no requirement that the negligence which caused the death of another be caused by the alcohol. Joiner v. State, 835 So.2d 42, 44(¶ 5) (Miss.2003); Miss Code Ann. § 63-11-30(5) (Supp.2003). The pertinent part of Mississippi Code Annotated section 63-11-30(5) states that “[e]very person who operates any motor vehicle in violation of the provisions of subsection (1) of this section and who in a negligent manner causes the death of another shall ... be guilty of a felony.” Miss.Code Ann. § 63-11-30(5) (Supp.2003). Therefore, the State had the burden of proving that Campbell was not only driving under the influence of intoxicating liquor at the time of the accident, but that he performed a negligent act that caused the death of Bonner. Hedrick v. State, 637 So.2d 834, 837-38 (Miss.1994). The State was not required to prove that the intoxicating liquor caused or contributed to the accident, only that Campbell, while under the influence of intoxicating liquor, committed a negligent act that caused the death of Bonner.

¶ 15. We apply a familiar standard of review to the resolution of this issue:

The evidence is viewed in the light most favorable to the State, which also receives the benefit of any favorable inferences which may be reasonably drawn from the evidence. All credible evidence consistent with the guilty verdict is accepted as true, with issues of weight and credibility resolved by the jury. [An appellate] court will reverse only where reasonable and fair-minded jurors could only And the accused not guilty.

Johnson v. State, 642 So.2d 924, 927 (Miss.1994) (citations omitted).

It is unlawful for any person to drive or otherwise operate a vehicle within this state who (a) is under the influence of intoxicating liquor; (b) is under the influence of any other substance which has impaired such person's ability to operate a motor vehicle; (c) has an alcohol concentration of eight one-hundredths percent (.08%) ... or two one-hundredths percent (.02%) ... (e) has an alcohol concentration of four one-hundredths percent (.04%) or more in the person's blood....

¶ 16. Despite Campbell’s contentions, there is ample and overwhelmingly weighty evidence that supports his guilt. As we have previously mentioned, it is not necessary that the State prove that the intoxicating liquor was a proximate or proximate contributing cause of the death. Joiner, 835 So.2d at 44(¶ 5). It is sufficient if the proof shows that Campbell was under the influence of intoxicating liquor when he committed a negligent act which resulted in Bonner’s death.

¶ 17. Our supreme court has held that “[d]riving an automobile on the highway under the influence of intoxicants ... is not only dangerous ... it is per se negligence.” Adams v. Green, 474 So.2d 577, 583 (Miss.1985) (citations omitted). Here, Campbell had a blood alcohol level of .24%, his urine specimen contained .30% ethyl alcohol, and a Breathalyzer test showed an alcohol content of .204%. All these aforementioned tests were administered more than two hours after Campbell was first taken into custody by Officer Varnado.

¶ 18. In regards to Campbell’s contention that what happened was not only unavoidable but inevitable because the youths were walking in the street in the path of traffic, we find this contention is not reconciled with the testimony presented at trial. Bonner’s companions gave contradictory testimony. Taylor attested that the group walked in the street on the night in question but that his aunt instructed them to get in the grass when they saw a vehicle approaching. On the other hand, Evans, the aunt, avowed that they were never in the street at all.

¶ 19. It was for the jury to resolve the discrepancy between Taylor’s testimony and that of his aunt. Collier v. State, 711 So.2d 458, 462(¶ 18) (Miss.1998). “The jury has a much better vantage point to view and assess the tone, mannerisms, and disposition of witnesses.” King v. State, 798 So.2d 1258, 1262(¶ 14) (Miss.2001).

¶20. Campbell stipulated that Bonner died as a result of a direct impact sustained from a motor vehicle driven by Campbell. The proof was overwhelming that Campbell was intoxicated at the time. Whether he committed an act of negligence was a question for the jury to resolve. They resolved it against him notwithstanding the conflicting testimony. We cannot say that, on these facts, reasonable and fair-minded jurors could only find Campbell not guilty of negligently causing the death of Jeremy Bonner.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF JONES COUNTY OF CONVICTION OF CAUSING THE DEATH OF ANOTHER WHILE DRIVING NEGLIGENTLY AND WHILE INTOXICATED AND SENTENCE OF TWENTY-FIVE YEARS, WITH FIVE YEARS SUSPENDED, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTH-WICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.

      . The pertinent portion of subsection one of section 63-11-30 reads as follows:


author: MYERS, J., for the court.

text:
    Jimmy BRISTER, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-01556-COA.
    Court of Appeals of Mississippi.
    Oct. 28, 2003.

      Jimmy Brister, Jr., Appellant, pro se.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ.
   MYERS, J., for the court.

¶ 1. Jimmy Brister, pro se, appeals an order of the Circuit Court of Walthall County, Mississippi denying his motion for post-conviction relief. Aggrieved, Brister perfected this appeal raising the following issue:

DID THE TRIAL COURT ERR IN DENYING APPELLANT’S MOTION FOR POST-CONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING AND THE REQUESTED RELIEF THEREIN CONTAINED?

STATEMENT OF FACTS

¶2. On July 26, 1999, Jimmy Brister pled guilty to the charges of armed robbery, Count I and conspiracy to commit armed robbery, Count II. On the first count, Brister was sentenced to a twenty year term with seven and one-half years suspended and five years of probation. On the second count, Brister was sentenced to a ten year term with five years of probation. The sentences from both counts were to run concurrently with the Circuit Court of Walthall County retaining jurisdiction for one year. Brister was also required to obtain his general equivalency diploma and to pay restitution and court costs. On August 16, 2002, Brister filed a motion for post-conviction relief requesting a reduction in his sentence. The trial court denied Brister’s motion without conducting an evidentiary hearing, ruling that the court no longer had the authority to change the sentence. Finding no error, we affirm.

LEGAL ANALYSIS

DID THE TRIAL COURT ERR IN DENYING APPELLANT’S MOTION FOR POST-CONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING AND THE REQUESTED RELIEF THEREIN CONTAINED?

¶ 3. Brister argues that the trial court erred in failing to conduct an evidentiary hearing and in failing to grant his motion for a reduction in sentence. Brister claims the trial court continues to have jurisdiction over him and its denial of his motion was against the overwhelming weight of evidence.

¶ 4. “When reviewing a lower court’s decision to deny a petition for post-conviction relief, this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised, the applicable standard of review is de novo.” Graves v. State, 822 So.2d 1089, 1090(¶ 4) (Miss.Ct.App.2002) (citing Pickett v. State, 751 So.2d 1031, 1032(¶ 8) (Miss.1999); Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999)). The issue of whether a trial judge erred in denying a motion for post-conviction relief without an evidentiary hearing is a question of fact. With this in mind, we now turn to a discussion of the law.

¶ 5. The right to an evidentiary hearing is not guaranteed. The trial judge has discretion in allowing an evidentiary hearing and “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the prisoner to be notified.” Miss.Code Ann. § 99-39-11(2) (Rev.2000).

¶ 6. When Brister pled guilty, the trial court retained jurisdiction on the sentence for one year. Brister filed his motion for post-conviction relief in that same court more than three years later. There was no need to conduct an evidentiary hearing because the trial court no longer had the authority to change the sentence. This fact was apparent from the date stamp affixed to the face of Brister’s motion. Therefore, the trial court’s denial of an evidentiary hearing was proper.

¶ 7. Brister also argues that the trial judge’s denial of his motion was against the overwhelming weight of evidence. Brister argues that the trial court should have reduced his sentence because he received his general equivalency diploma; he has incurred no rule violations; he is enrolled in vocational school; and he is employed as a unit support barber. The State argues that Brister’s motion for post-conviction relief is not procedurally viable because the trial court no longer has jurisdiction over the sentence. Moreover, the State argues that Brister’s motion for post-conviction relief is time barred. We agree.

¶ 8. As stated above, the trial court retained jurisdiction on the sentence for only one year and no longer has the authority to change the sentence unless it was illegal. Brister does not challenge the legality of his plea or his sentence. In addition, The Mississippi Uniform Post-Conviction Collateral Relief Act requires that a motion for relief be made within three years after entry of the judgment of conviction. Miss.Code Ann. § 99-39-5(2) (Rev.2000). There are certain exceptions to this limitation none of which Brister has raised. Brister pled guilty and was convicted on July 26, 1999. Brister did not file his motion requesting a reduction in sentence until August 16, 2002. The time limit for filing such a motion had expired. Therefore, the trial court’s denial of Bris-ter’s motion for post-conviction relief was proper.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF WALTHALL COUNTY DENYING THE MOTION FOR POST CONVICTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO WALTHALL COUNTY.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: LEE, J., for the court.

text:
    Daniel MURRELL, Sr., Appellant, v. CITY OF INDIANOLA, Mississippi, Appellee.
    No. 2002-KM-00390-COA.
    Court of Appeals of Mississippi.
    Oct. 28, 2003.

      Leland H. Jones, Greenwood, attorney for appellant.
    Richard G. Noble, attorney for appellee.
    Before SOUTHWICK, P.J., LEE, MYERS and CHANDLER, JJ.
   LEE, J., for the court.

PROCEDURAL HISTORY AND FACTS

¶ 1. On October 17,1998, Daniel Murrell, Sr., was arrested for domestic violence (second offense) stemming from an incident with his wife Phyllis Murrell. On November 16, 1998, the Indianola Municipal Court Judge found Murrell guilty of the crime but postponed sentencing pending counseling for one year. Murrell committed other acts of domestic violence within this one year and the court imposed a sentence on February 4, 2000.

¶ 2. Murrell appealed his conviction to the Sunflower County Circuit Court and, after a de novo trial without a jury, the trial judge found Murrell guilty of simple domestic violence and sentenced him to serve six months in the county jail. The judgment was entered on February 15, 2002, and Murrell now appeals to this Court. In his appeal, Murrell argues that: (1) the municipal court lacked jurisdiction to impose a sentence in February 2000, after the conviction in November 1998, at which time no sentence was imposed and (2) the State failed to prove he had a prior conviction for simple domestic violence.

DISCUSSION OF ISSUES

I. DID THE MUNICIPAL COURT LOSE JURISDICTION AFTER FAILING TO IMPOSE A SENTENCE AFTER MURRELL’S CONVICTION IN NOVEMBER 1998?

¶ 3. With his first argument, Murrell contends that the municipal court’s decision to continue the case for one year before sentencing operated to deprive the court of jurisdiction over him. Murrell further argues that because he was not sentenced directly after being found guilty, he was not actually convicted.

¶ 4. The record of proceedings from the Indianola Municipal Court states as follows:

Proceedings and Sentence in Full with Date of Same:
Found guilty, sentencing postponed pending counseling. If no more charges filed in a one year time frame case will be passed to the file. September 27th, 1999, case brought back into court since additional charges of domestic violence were filed against defendant on 09-14-99. 02-14-2000 defendant received a $500.00 fine, 6 mos. suspended sentence, judge advised he would retain jurisdiction for 1 year.

¶ 5. According to Mississippi Code Annotated Section 21-23-7 (Rev.2001), the authority given to a municipal court judge is expressly set out in section 5.

(5) The municipal judge of any municipality is hereby authorized to suspend the sentence and to suspend the execution of the sentence, or any part thereof, on such terms as may be imposed by the-municipal judge. However, the suspension of imposition or execution of a sentence hereunder may not be revoked after a period of two (2) years.

Murrell claims that this section does not apply in this case because he was not given a sentence. However, we find that the statute applies directly to Murrell’s case. The municipal judge found Murrell guilty and used his discretion in determining an appropriate sentence and fine. Murrell violated the order of the municipal judge by committing another act of domestic violence and, therefore, was subject to the terms proposed by the judge.

¶ 6. Murrell also cites Mississippi Code Annotated Section 21-13-9 as authority for his contention that the municipal court had a maximum statutory jurisdiction. However, as that particular statute has no relevance to this case, we note that Murrell means to rely upon Mississippi Code Annotated Section 21-13-19 (Rev.2001). This statute states that the penalty of incarceration is limited to “no more than six (6) months in jail, and any fine is hereby limited to a maximum of one thousand dollars ($1,000.00) for each such violation in any case tried without a jury.” Miss. Code Ann. § 21-13-19 (Rev.2001). We fail to see how this statute supports Murrell’s argument concerning the jurisdiction of the municipal judge.

¶ 7. After postponing sentencing pending counseling, the municipal judge, pursuant to Mississippi Code Annotated Section 21-23-7 (Rev.2001), had two years within which to impose or execute the sentence upon Murrell if he violated a condition of the suspension. Murrell was found guilty in November 1998, charged with another act of domestic violence in September 1999, and was ultimately sentenced in February 2000, well within the two years prescribed by the statute. We find no merit with this issue.

II. DID THE STATE FAIL TO PROVE MURRELL HAD A PRIOR CONVICTION FOR SIMPLE DOMESTIC VIOLENCE?

¶ 8. At his trial de novo in the Circuit Court of Sunflower County, Murrell was charged with domestic violence, second offense. At the close of the City’s case Murrell moved for a dismissal of the charge of domestic violence, second offense based on the fact that the City did not prove a prior conviction for domestic violence. Murrell claims the City did not provide proper documentation of his prior conviction for domestic violence. However, according to an order signed January 29, 2002, the trial judge considered Mur-rell’s motion for a dismissal and found that it should be granted in part to dismiss any second offense aspect of the charge. The judge further states that the State did not produce any documentary evidence to prove Murrell’s prior conviction nor could the State use testimony to establish the conviction.

¶ 9. Although the judge dismissed any second offense aspect of the charge, after considering the evidence and testimony, the judge found beyond a reasonable doubt that Murrell was guilty of simple domestic violence. As Murrell’s argument consists entirely of protesting the method by which the City used to introduce the prior conviction and the judge dismissed the second offense status, we fail to see any merit to this issue.

¶10. THE JUDGMENT OF THE SUNFLOWER COUNTY CIRCUIT COURT OF CONVICTION OF SIMPLE DOMESTIC VIOLENCE AND SENTENCE OF SIX MONTHS IN THE COUNTY JAIL IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P JJ., BRIDGES, THOMAS, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


text:
    Willie David STEEN and Willie Mae Steen, Appellants, v. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee.
    No. 2002-CA-01474-COA.
    Court of Appeals of Mississippi.
    Oct. 28, 2003.
    Walter Beauregard Swain, Greenville, attorney for appellant.
    Ronald L. Roberts, Columbus, Berkley N. Huskison, attorneys for appellee.
    Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ.
   MYERS, J., for the court.

¶ 1. Willie David Steen and Willie Mae Steen appeal from the Sunflower County Circuit Court’s grant of summary judgment which held that the Steens were not entitled to receive uninsured motorist benefits under an insurance policy issued to them by Metropolitan Property and Casualty Insurance Company (Metropolitan). The trial court ruled that because Steen was not legally entitled to recover from his co-employee then he was not allowed to recover uninsured motorist benefits from his personal insurer. Aggrieved by this result, the Steens perfected this timely appeal raising the following issue:

DID THE TRIAL COURT ERR IN FAILING TO PERMIT APPELLANTS FROM COLLECTING UNINSURED MOTORIST BENEFITS UNDER THEIR PERSONAL INSURANCE POLICY AFTER COLLECTING WORKERS’ COMPENSATION BENEFITS FROM APPELLANT’S EMPLOYER?

STATEMENT OF THE FACTS

¶ 2. Willie David Steen was an employee of Delta Pride Catfish, Inc. in Sunflower County, Mississippi. William Fikes was a co-employee of Steen at Delta Pride. On August 28, 1998, a truck driven by Fikes rear-ended a truck driven by Steen. Both gentlemen were in the course and scope of their respective employment at the time of the accident.

¶ 3. Fikes was uninsured but Delta Pride carried workers’ compensation insurance which provided statutory benefits to Steen. Steen also carried a personal automobile insurance policy with Metropolitan that contained uninsured motorist coverage. Metropolitan did not provide any insurance to Delta Pride. Despite this fact, Metropolitan denied liability claiming that Steen was not legally entitled to recover from his co-employee and that Steen’s policy clearly excluded coverage in such a case.

¶ 4. As a result, Steen filed a complaint against Metropolitan and Fikes in the Circuit Court of Sunflower County on August 17, 2001. Both Fikes and Metropolitan filed motions for summary judgment. On May 28, 2002, the court entered a judgment of dismissal as to Fikes under Mississippi Rule of Civil Procedure 54(b). On August 1, 2002, the lower court entered an order granting Metropolitan’s motion for summary judgment. On August 28, 2002, Steen filed this appeal.

LEGAL ANALYSIS

¶ 5. When analyzing a trial court’s order granting or denying a motion for summary judgment, this Court applies a de novo standard of review. Aetna Cas. and Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996). Summary judgment may only be granted where there are no genuine issues of material fact such that the moving party is entitled to a judgment as a matter of law. M.R.C.P. 56(c). In addition, “the evidence must be viewed in the light most favorable to the party against whom the motion has been made.” Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983). With this in mind, we now turn to a discussion of the case.

¶ 6. Steen argues that his claim for uninsured motorist benefits for his work-related injury is not barred by the exclusive remedy provision of the Mississippi Workers’ Compensation Act because that Act serves a different purpose than the uninsured motorist statute. Metropolitan argues that under the Mississippi uninsured motorist statute as well as Steen’s own insurance policy, Steen is entitled to benefits from Metropolitan only if he is legally entitled to recover damages from the owner or operator of the uninsured vehicle.

¶ 7. The Mississippi uninsured motorist statute provides:

No automobile liability insurance policy or contract shall be issued or delivered after January 1, 1967, unless it contains an endorsement or provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages for bodily injury or death from the owner or operator of an uninsured motor vehicle, within limits which shall be no less than those set forth in the Mississippi Motor Vehicle Safety Responsibility Law, as amended, under provisions approved by the commissioner of insurance....

Miss.Code Ann. § 83-11-101(1) (Rev.1999).

¶ 8. The record reveals that the Steens’s own automobile insurance policy with Metropolitan contained provisions for payment of uninsured motorist coverage and states that “we will pay bodily injury damages, caused by accident arising out of the ownership, maintenance, or use of an uninsured highway vehicle, which you or a relative are legally entitled to collect from the owner or driver of an uninsured highway vehicle.”

¶ 9. The Mississippi Workers’ Compensation Act states that “[t]he liability of an employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee.... ” Miss.Code Ann. § 71-3-9 (Rev.2000). In addition, the exclusivity provision of the Mississippi Workers’ Compensation Act prohibits an employee injured in the course and scope of his employment by the negligence of a co-employee from recovering from that co-employee. Medders v. U.S. Fid. & Guar. Co., 623 So.2d 979, 984 (Miss.1993); Sawyer v. Head, 510 So.2d 472, 476 (Miss.1987).

¶ 10. In Medders, the issue before the court was whether the exclusivity clause of the Workers’ Compensation Act barred recovery under an employer’s uninsured motorist coverage where the uninsured motorist was uninsured due to the fact that he was a fellow employee acting in the course and scope of his employment. Medders, 623 So.2d at 980. The Court determined that its analysis would depend upon the interpretation of the phrase “legally entitled to recover.” Id. at 984. The Court went on to hold that the “clear meaning of the phrase legally entitled to recover found in the Mississippi [uninsured motorist] statute limits the scope of coverage mandated by the statute to those instances in which the insured would be entitled at the time of injury to recover through legal action.” Id. at 989. The Court reasoned since Medders would have no legal claim against his co-employee acting in the course and scope of his employment at the time of the accident, then he was not “legally entitled to recover” uninsured motorist benefits from his employer’s insurer.

¶ 11. Steen argues that Medders can be distinguished because in that case the injured employee sought uninsured motorist benefits from his employer’s own insurance carrier. Steen contends that he is attempting to collect uninsured motorist benefits directly from his own automobile insurance policy. In other words, the insurance carrier that paid workers’ compensation benefits to Steen is an entirely separate business entity from Metropolitan. Therefore, the exclusivity provision of the Workers’ Compensation Act should have no effect on the two party automobile insurance contract between Steen and Metropolitan.

¶ 12. The Mississippi Supreme Court addressed this very distinction earlier this year. Wachtler v. State Farm, 835 So.2d 23 (Miss.2003). In Wachtler, a City of Waveland employee brought an action against his personal automobile insurer to recover uninsured motorist benefits for injuries caused by a co-employee. Wachtler, 835 So.2d at 24(¶ 2). Wachtler was injured when he was hit by a truck driven by another city employee. Id. Wachtler brought a workers’ compensation claim against his employer’s insurer. Id. Wacht-ler also brought an uninsured motorist claim against State Farm, his personal automobile insurer. Id. State Farm denied benefits claiming the accident was caused by a co-employee. Id. at 24-25 (¶ 5).

¶ 13. State Farm then moved for summary judgment arguing that since the co-employee is immune from liability under the Mississippi Workers’ Compensation Act, Wachtler was not legally entitled to collect from the owner or driver of the uninsured motor vehicle. Id. The trial court granted State Farm’s motion for summary judgment and the Mississippi Supreme Court affirmed that decision. Id. at 28(¶ 20). The court held that “it is of no moment whether Wachtler is seeking to recover [uninsured motorist] benefits from his personal insurer or from the insurer of his co-employee based upon the legal doctrine of entitlement to recovery.” Id. The Court further held that “based on our ruling in Medders, defining ‘legally entitled to recover,’ ... this Court affirms the ruling of the circuit court which held that Wachtler was not legally entitled to recover any damages from his co-employee and therefore, was not entitled to UM benefits from his personal insurer.” Id.

¶ 14. The facts of the case sub judice are analogous to Wachtler. Like Wacht-ler, Steen is attempting to collect uninsured motorist benefits under his personal automobile insurance policy. The accident that generated Steen’s claim occurred at work while Steen and his co-employee, Fikes, were in the course and scope of their respective employment. Steen collected statutory benefits from Delta Pride’s workers’ compensation insurance. Metropolitan did not provide any insurance to Delta Pride. Despite his negligence, Fikes was immune from liability under the Mississippi Workers’ Compensation Act. The language in the Mississippi uninsured motorist statute, as well as Steen’s uninsured motorist policy, requires that the insured be legally entitled to recover from the owner or operator of the uninsured vehicle.

CONCLUSION

¶ 15. The Mississippi Supreme Court, in Medders, held that the “clear meaning of the phrase legally entitled to recover found in the Mississippi UM statute limits the scope of coverage mandated by the statute to those instances in which the insured would be entitled at the time of injury to recover through legal action.” Since Steen could not bring a legal action against Fikes at the time of the accident, he was not entitled to recover uninsured motorist benefits from his personal insurer. The trial court’s judgment granting Metropolitan’s motion for summary judgment is affirmed.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY IS AFFIRMED. COSTS ARE ASSESSED TO THE APPELLANTS.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: CHANDLER, J., for the Court.

text:
    Gerome MOORE, appellant, v. STATE of Mississippi, appellee.
    No. 2002-KA-01337-COA.
    Court of Appeals of Mississippi.
    Oct. 28, 2003.

      Walter E. Wood, Ridgeland, attorney for appellant.
    Office of the Attorney General By: W. Glenn Watts, attorney for appellee.
    Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   CHANDLER, J., for the Court.

¶ 1. Gerome Moore was tried on charges of aggravated assault and armed robbery-in the Madison County Circuit Court. He was acquitted of the aggravated assault charge but convicted of armed robbery, and sentenced to serve thirty-five years’ confinement. Moore appeals asserting: (1) his initial statement was taken in violation of his rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, (2) the circuit court erred in admitting prejudicial evidence consisting of photographs, as well as allowing testimony concerning Moore’s statement that was not supported by the statement, and (3) the verdict was against the overwhelming weight of the evidence. ■

FACTS

¶ 2. On the early morning of August 29, 2000, Joyce Fletcher was arriving home from work. She was unaware that three men were following her in a stolen Buick Roadmaster. As she drove into her driveway, the stolen Buick also drove into the driveway, blocking any escape. One man pulled her car door open and ordered her at gunpoint to get out of her car. She refused. The man with the handgun hit her in the mouth with the gun. Another man reached into her car, and took her purse. As he reached inside the car, Fletcher pulled off the hat the man was wearing. The men then went back to the Buick, but one then returned and shot Fletcher in the abdomen as she still sat in her car with her seatbelt fastened. Despite severe blood loss, Fletcher was able to crawl inside her home and telephone for help.

¶ 3. The stolen Buick was located by the Jackson Police Department, and Bobby Sanders was found sleeping inside of it. Both the vehicle and Sanders were taken into custody. Lieutenant Randy Tyler of the Ridgeland Police Department interviewed Sanders’ mother and sister, and from them obtained information leading to the arrest of Moore.

¶ 4. Sanders and the third man, Elias Gunn, ultimately pled guilty to armed robbery. At trial, Sanders denied that he was even present at the scene of the crime. Gunn gave a pre-trial statement to the effect that Moore was driving the stolen Buick when Sanders saw Fletcher, and Sanders instructed Moore to follow her. Moore did so. When Fletcher parked her vehicle, Gunn and Sanders exited the stolen Buick, and Sanders held a gun to the woman and demanded she get out of her car. She refused, so Sanders shot her. At some point, Gunn put his head inside Fletcher’s vehicle, because he said she “snatched my hat off my head.” Gunn stated that Moore did not get out of the stolen vehicle during the robbery. He also stated that there had been no agreed upon plan to rob Fletcher. Gunn’s testimony at trial conformed to this version of events.

DISCUSSION

1. WAIVER OF RIGHT TO REMAIN SILENT

¶ 5. Moore gave two statements’ prior to his appointment of counsel. He argues that he did not give his consent to a waiver of his right to remain silent, and even if he did give consent, the waiver of his right to remain silent was unknowing due to his limited intelligence and emotional state. In the first statement, which was not recorded, Tyler testified that Moore admitted to being part of a common plan to rob someone to obtain money to purchase marijuana. In a second statement, which was recorded, Moore admitted that he was a passenger in the stolen vehicle, but claimed that Sanders committed the robbery and shooting without Moore aequiesc-ing to participate or having any knowledge of Sanders’ plans.

¶ 6. Although it is not germane to this assignment of error, Moore later wrote a letter to an assistant district attorney in which he admitted to being the driver of the stolen Buick, but he still maintained that Sanders shot the victim, and there was no agreement to commit robbery. Moore also contended that he did not get out of the stolen Buick during the commission of the crime. Moore’s testimony was consistent with this third version of events. He stated that Sanders had mentioned “hitting a lick” on someone to obtain money to buy marijuana, but that this phrase indicated that Sanders was not serious about robbing someone. He admitted to driving the stolen Buick, and at Sanders’ instruction, parking it to block the victim’s car from backing out of the driveway. He denied that there was a common plan to rob Fletcher.

¶ 7. The record shows that while Moore filed a pre-trial motion to suppress the two statements, he failed to obtain a ruling by the circuit court. The failure to obtain a ruling on a pre-trial motion, or to raise a contemporaneous objection during trial to the evidence sought to be excluded, operates as a waiver to the merits. Rushing v. State, 711 So.2d 450(¶ 17) (Miss.1998).

¶ 8. Even assuming this issue was not waived, which we do not, it would be without merit. Moore contends that his lack of education and intelligence, coupled with the facts that he was under the influence of marijuana and emotionally distraught over the recent death of a relative, rendered his consent unknowing. On appeal he argues that there is insufficient evidence to show a knowing and intelligent waiver of his right to refuse questioning under the Fifth and Fourteenth Amendments to the United States Constitution. In determining whether a waiver is knowing and intelligent, trial courts are directed to look just not to impaired mental abilities of defendants, but rather to the “totality of the circumstances,” and the trial court’s determination is given deference. White v. State, 495 So.2d 1346, 1347 (Miss.1986).

¶ 9. The record shows without doubt that Moore was thoroughly advised of his rights prior to the taking of the second statement. Moore was asked both whether he understood that he was being questioned concerning the crime in question and whether he knew he had a right to remain silent. He answered both questions by saying “I think so.” However, he was asked a second time whether he understood he could remain silent, and answered, “Yes sir.” And, he was asked yet again whether “you’d like to make a statement at this time?” He answered, “Yes sir.”

¶ 10. The first statement was not recorded, so there is no written waiver of rights. However, Moore’s testimony on cross-examination concerning the first statement shows that Moore understood his legal peril only too well. He knew that he could be identified as being the man who had driven the stolen Buick and parked it in such a way as to prevent Fletcher from fleeing. He gave his statements to attempt to distance himself from the crime.

Q: And you knew that you were being questioned in regard to an armed robbery, right?
A: I mean, you know.
Q: And aggravated assault. I mean he told you what he was asking you about, didn’t he?
A: About once or twice and then he would just keep on saying it, you know what I mean.
Q: Well, when a police officer has you in there — and before he questioned you, he said you have the right to remain silent. He gave you all the Miranda rights, didn’t he?
A: Why should I remain silent?
Q: Sir, my question to you is before you were asked any of these questions, you were given your Miranda rights, correct?
A: Yes, Sir.
Q: And you knew that you were in custody being charged with a crime, correct?
A: True, Sir.
Q: So you knew this was an important statement to give?
A: No, I didn’t have to give him nothing.
Q: So you didn’t think it was that important what you told the detective regarding an armed robbery and aggravated assault?
A: I didn’t have to give them no statements, sir.
Q: I know you didn’t have to? You chose to?
A. It wasn’t a choice. I did it on my own will to let them know what went on that night.

¶ 11. The record shows that Moore gave his statements to attempt to construct a version of events that would conform his actions to events on the night of the crime without creating legal liability for himself. As he stated in the second statement, “I know if I go to jail, I’ll be a eyewitness to this. I know I can get out of jail if I only be a eyewitness, you know what I’m saying.” The burden of proof on the State when a defendant asserts that his waiver was unknowing is beyond a reasonable doubt. Evans v. State, 844 So.2d 470(¶ 21) (Miss.Ct.App.2002). In this case, Moore failed to secure a ruling on whether the State met this burden of proof, which waived any merit the issue might have had. Nevertheless, even if the issue had been preserved, the record does not support Moore’s contention that he lacked the mental capacity to understand the voluntary nature of his statement, as well as comprehend the gravity and importance of his admissions. There was no error going to the admissibility of Moore’s statements.

2. PREJUDICIAL PHOTOGRAPHS AND TESTIMONY NOT SUPPORTED BY MOORE’S STATEMENT

¶ 12. Two photographs of the interior of Fletcher’s vehicle were admitted into evidence over Moore’s objection. On appeal, he contends the photographs were unduly prejudicial. This Court will only reverse the trial court’s evidentiary ruling for an abuse of discretion. Alexander v. State, 610 So.2d 320, 338 (Miss.1992). Regarding photographs, “the discretion of the trial judge runs toward almost unlimited admissibility regardless of the gruesomeness, repetitiveness, and the extenuation of probative value.” Brown v. State, 682 So.2d 340, 353 (Miss.1996) (quoting Hart v. State, 637 So.2d 1329, 1335 (Miss.1994)).

¶ 13. In this case, Fletcher testified as to how she came to be shot and the difficulty she had in “crawling” from her vehicle to the inside of her home where she telephoned for assistance. She also testified to her extensive blood loss, the resulting surgery and residual effects of her wound and surgery. While Moore made a timely objection based on the prejudicial nature of the photographs, the circuit court found that the photographs’ eviden-tiary nature made them admissible. The record shows that the circuit court correctly analyzed this issue. Nothing in the record supports disturbing the circuit court’s determination. There is no merit to this issue.

¶ 14. Moore additionally asserts that it was improper to allow Tyler to testify that in his first statement, which was not recorded, Moore stated that he and the other two men in the stolen Buick planned “to hit a lick” on someone to obtain money to purchase marijuana. Moore failed to make a contemporaneous objection to this testimony. Failure to make a timely objection to testimony waives any issue going to the admissibility of the testimony. Ward v. State, 821 So.2d 894(¶ 17) (Miss.Ct.App.2002). Even assuming, which we do not, that this issue was not waived, it would be meritless. Moore’s contention that the phrase should not have been admitted is based upon the fact that Tyler’s notes of the first statement did not indicate that Moore used the phrase “to hit a lick.” However, even if Tyler had been directed by the circuit court to not use that exact phrase, he still would have been a competent witness to testify to the substance of Moore’s first statement. Furthermore, Moore himself used the phrase “to hit a lick” in his direct testimony. He stated the phrase meant that Sanders was only “joking” about planning to rob someone. Thus, even if the issue was not waived, and even if the circuit court should have excluded the testimony had Moore raised an objection, the admission of Tyler’s use of the phrase would not amount to reversible error. There is no merit to this assignment of error.

3. WEIGHT AND SUFFICIENCY OF THE EVIDENCE

¶ 15. Sanders pled guilty to shooting Fletcher. At trial, he denied actually having shot Fletcher, but Moore’s and Gunn’s statements and testimony identified Sanders as the person who actually shot Fletcher. None of the three men admitted that there was a common scheme involved in the robbery. Moore contends that there was insufficient evidence to find that he was an accomplice to the crime.

¶ 16. A motion for JNOV challenges the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1998). A reviewing court must consider as true all credible evidence consistent with the defendant’s guilt, and the State must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Id. This Court may only reverse where, with respect to one or more of the elements of the offense, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty. Wetz v. State, 503 So.2d 803, 808 (Miss.1987). Similarly, a motion for a new trial challenges the weight of the evidence, and implicates the discretion of the trial court. McClain, 625 So.2d at 781. The trial court should only grant a new trial motion when the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable injustice. Wetz, 503 So.2d at 812.

¶ 17. Fletcher testified that all three men exited the Buick, and all three men participated in robbing her. This testimony contradicted Moore’s and Gunn’s testimony that there was no common participation in the theft, and in and of itself, Fletcher’s testimony would sustain the verdict. Yet, in addition to Fletcher’s testimony, Moore’s initial unrecorded statement was an admission of guilt. Moreover, he twice changed his story. He made the second voluntary statement, in which he said he was merely a passenger in the stolen Buick. Then, he wrote the letter to the assistant district attorney in which he admitted to being the driver of the stolen vehicle. At trial, he attempted to explain this inconsistency. He testified that, while he had been the driver, Sanders instructed him to follow Fletcher to her home and park the vehicle to block Fletcher from being able to flee. Moore stated that he had been in fear that Sanders would harm him, if he did not do as he was told. However, Gunn testified that Sanders did not threaten anyone. This testimony presented the jury with a determination of credibility. The circuit court correctly denied the motions for a JNOV and a new trial. There is no merit to this assignment of error.

¶ 18. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF THIRTY-FIVE YEARS IN THE CUSTODY OF MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS AND GRIFFIS, JJ., CONCUR.

      . Despite the general assertion of rights under the Sixth Amendment to the United States Constitution, Moore does not make any substantive claim that his right to counsel was abridged, or that statements were taken after the appointment of counsel.


author: CHANDLER, J., for the court.

text:
    Keith P. GUIDRY, Appellant, v. PINE HILLS COUNTRY CLUB, INC. OF CALHOUN COUNTY, Appellee.
    No. 2002-CA-01218-COA.
    Court of Appeals of Mississippi.
    Oct. 28, 2003.

      C. Ashley Atkinson, attorney for appellant.
    Caryn Lynne Anlage, W. Shan Thompson, Ridgeland, attorneys for appellee.
    Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   CHANDLER, J., for the court.

¶ 1. The appeal presented to this Court arises from the dismissal of Keith P. Gui-dry’s lawsuit against Pine Hills Country Club, Inc. of Calhoun City for want of prosecution, pursuant to Rule 41(d) of the Mississippi Rules of Civil Procedure. Feeling aggrieved, Guidry appeals the following errors:

I. THE CIRCUIT JUDGE OF CALHOUN COUNTY, MISSISSIPPI ABUSED HIS DISCRETION IN DISMISSING THE COMPLAINT.

II. THE CIRCUIT JUDGE OF CALHOUN COUNTY, MISSISSIPPI ABUSED HIS DISCRETION IN OVERRULING THE MOTION TO RECONSIDER.

¶ 2. Finding no merit in Guidry’s appeal, the Court affirms the disposition of the trial court.

FACTS

¶ 3. On July 30, 1994, Guidry attended a wedding at the Pine Hills Country Club and suffered an injury walking down the steps of the clubhouse. Guidry alleged the cause of the accident was the negligent placement and maintenance of a welcome mat at the Pine Hills Country Club. Gui-dry commenced the lawsuit on July 24, 1997, approximately three years after the alleged negligence occurred.

¶ 4. Pine Hills Country Club served its answers to the complaint on August 19, 1997, and propounded discovery to Guidry on September 22,1997. After receiving no response from Guidry, Pine Hills Country Club filed a motion to compel on March 20, 1998. On March 31, 1998, the court ordered Guidry to respond to the discovery request. Guidry did not sign the responses or swear to their authenticity as required by Mississippi Rule of Civil Procedure 33. Instead, Guidry’s attorney signed the responses and executed them for him.

¶ 5. On April 17, 1998, Pine Hills Country Club filed motions to compel discovery and to strike Guidry’s late discovery request for violation of Mississippi Uniform Circuit and County Court Rule 4.04. No further action was taken by Guidry to pursue his case to trial for two years.

¶ 6. The clerk of the court gave notice to the parties on June 15, 2000, that the case was being dismissed pursuant to Mississippi Rule of Civil Procedure 41(d). The clerk noted that there was no activity in pursuing the case for two years. Guidry filed a motion for extension of time to complete discovery and the case was reinstated by the court. Guidry failed to take further action in the case for over a year after reinstatement by the court.

¶ 7. On June 22, 2001, the clerk issued another notice to the parties that the case was being dismissed pursuant to Mississippi Rule of Civil Procedure 41(d) for failure to prosecute the case. In response, Gui-dry filed a motion to remain on the active docket, but gave the court no reason for his failure to diligently pursue the case for five years The circuit court dismissed Gui-dry’s case without prejudice pursuant to Mississippi Rule of Civil Procedure 41(d) for failure to prosecute. Guidry filed a motion for reconsideration to provide for a scheduling order, reopening of discovery and setting the cause of action for trial. On June 27, 2002, the judge denied Gui-dry’s motion for reconsideration.

I. THE CIRCUIT JUDGE OF CALHOUN COUNTY, MISSISSIPPI ABUSED HIS DISCRETION IN DISMISSING THE COMPLAINT.

¶ 8. Guidry argues the trial court’s dismissal was an abuse of discretion and a violation of Mississippi Rule of Civil Procedure 41(b), which provides, in relevant part: “For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of action or any claim.” M.R.C.P. 41. Rule 41(b) allows the court to dismiss an action involuntarily for dismissal for want of prosecution as a penalty for dilatoriness. See M.R.C.P 41 cmt.

¶ 9. Guidry relies on American Telephone and Telegraph Company v. Days Inn of Winona, 720 So.2d 178 (Miss.1998) and argues his case was wrongfully dismissed pursuant to Rule 41(b). In a Rule 41(b) involuntary dismissal the defendant moves for dismissal of the claim. In this case, the clerk of the court initiated the dismissals pursuant to Rule 41(d). Pine Hills Country Club did not request the court to dismiss the case.

¶ 10. The circuit clerk filed two notices of dismissal pursuant to Rule 41(d). Mississippi Rule of Civil Procedure 41(d) provides:

where there has been no action of record during a twelve month period, the clerk of the court shall mail a notice to attorneys of record that the case will be dismissed by the court for want of prosecution unless within thirty days following the mailing, action of record is taken or an application is made to the court showing good cause why it should be continued as a pending ease.

M.R.C.P 41. Guidry received notice of each involuntary dismissal by the clerk of the court. The first dismissal was commenced after a two year period of inactivity on the part of Guidry in pursuing the cause of action. Following the first dismissal, Guidry filed a motion for extension of time to complete discovery and the case was reinstated. After reinstatement, Gui-dry took no action to pursue the case to judgment for over a year until he received a second Rule 41(d) dismissal notice by the clerk of the court.

¶ 11. Guidry filed a motion to remain on the active docket but gave the court no reason for his lack of diligence in pursuing the case for almost five years. As a result, Guidry’s case was dismissed pursuant to 41(d) for failure to prosecute. A Rule 41(d) involuntary dismissal provides Gui-dry with thirty days to take “action of record” and/or show good cause to the court why the case should not be dismissed. M.R.C.P 41. Guidry argues his motion to remain on the active docket is an action of record; therefore, the cause of action should not have been dismissed.

¶ 12. There are no Mississippi cases construing what constitutes an action of record, but the Mississippi Supreme Court in Wilson v. Freeland, 773 So.2d 305, 309(¶ 14) (Miss.2000), held that the chancellor’s signing of an order on a motion to compel constituted an action of record because it invariably hastens a suit to judgment. See also Milu, Inc. v. Duke, 256 So.2d 83 (Fla.Dist.Ct.App.1971) (filing of a notice of hearing sufficient to avoid dismissal); Brumfield v. Varner, 561 So.2d 1376 (La.1990) (filing of order of transfer and motion to consolidate constituted formal action on record and clearly was “step in its prosecution or defense”); American Eagle, Inc. v. Employers’ Liab. Assur. Corp., 389 So.2d 1339 (La.Ct.App.1980) (post-trial conference called by trial judge to facilitate completion of a transcript so that briefs could be filed and a decision rendered was held to be a “substantial step in the prosecution”); Landberg v. State, 36 Wash.App. 675, 676 P.2d 1027, 1029 (1984) (where plaintiff filed motion for change of judge twenty-seven days after notice of dismissal for want of prosecution was issued, motion was in fact an affidavit of prejudice, and constituted action of record within thirty days, precluding dismissal for failure to prosecute).

¶ 13. A common thread in the above cited cases reflects acts which are “hastening the suit to judgment.” Guidry’s motion to remain on the active docket does nothing to move the case closer to a judgment on the merits. The case was on the docket in Calhoun County for five years. There have been two notices of dismissal for failure to prosecute. There was never a request for a trial setting nor a request to set the motions for hearings.

¶ 14. In a three year period, the only actions by Guidry were to keep the case on the docket. The actions do not meet the standard required to. reverse the trial court.

II. THE CIRCUIT JUDGE OF CALHOUN COUNTY, MISSISSIPPI ABUSED HIS DISCRETION IN OVERRULING THE MOTION TO RECONSIDER.

¶ 15. Guidry argues that the circuit court’s action in overruling his motion for reconsideration to provide for a scheduling order, reopening of discovery and setting the cause of action for trial was an abuse of discretion. Guidry states that his attorney had a duty pursuant to Rule 2.04 of the Uniform Circuit and County Court Rules to pursue the motion to hearing before the court.

¶ 16. Guidry argues that he is entitled to a hearing on his motion for reconsideration before the trial court but offers no legal basis for his argument. The circuit judge gave due consideration to Guidry’s motion for reconsideration. A hearing on the motion would serve no legitimate purpose.

¶ 17. A dismissal pursuant to Rule 41(d) is warranted where there has been no action of record for the preceding twelve months and after all parties have been given notice of the proceeding. Gui-dry shows no good cause for failure to prosecute after two notices of dismissal by the clerk of the court.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF CALHOUN COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS AND GRIFFIS, JJ., CONCUR.