author: COBB, Presiding Justice,

text:
    STATE of Mississippi, ex rel. Jim HOOD, Attorney General and Phil Bryant, Auditor of Public Accounts for the Use and Benefit of Madison County, Mississippi v. MADISON COUNTY, Mississippi, acting By and Through the MADISON COUNTY BOARD OF SUPERVISORS and Herring Appraisal & Computer Services, Inc.
    No. 2001-CA-01422-SCT.
    Supreme Court of Mississippi.
    May 13, 2004.

      Office of the Attorney General by Melissa C. Patterson, attorney for appellant.
    Glenn Gates Taylor, Thomas A. Cook, Ridgeland, G. Dewey Hembree, Canton, J. Max Kilpatrick, attorneys for appellees.
   COBB, Presiding Justice,

for the Court.

¶ 1. On June 15, 2001, Madison County, acting by and through its Board of Supervisors (the Board), filed in the Madison County Circuit Court a Complaint for Declaratory Judgment and Determination of Rights, naming Herring Appraisal & Computer Services, Inc. (Herring) as the only defendant. Madison County asked for a declaration that it had acted in good faith and that its contract with Herring for reappraisal services was valid. The trial court heard arguments on June 18, 2001, and entered a declaratory judgment that the contract was valid. Three days later, the trial court vacated its previous judgment and set the case for a full hearing, finding that certain issues were not known to the court at the time the judgment was entered. On July 3, the State of Mississippi, by and through the Attorney General and the State Auditor, filed a motion to intervene. A full hearing was held on July 6, 2001.

¶ 2. The trial court determined that Madison County had authority to enter into a contract for appraisal services with Herring without advertising for bids and that the contract between Madison County and Herring was valid. It is from this declaratory judgment and order that the State of Mississippi appeals to this Court, assigning as error the determination that: (1) contracting for appraisal services did not require advertisement for bids and (2) the contract with Herring was a personal service contract.

¶ 3. Because we hold that Madison County was required to advertise for bids and the contract was a not personal service contract, we reverse and remand.

FACTS

¶ 4. In 1980, the Legislature amended several statutes and enacted others in response to public debate over the equalization of property taxes in the state. One of these statutes was Miss.Code Ann. § 27-35-165 (1980), which authorized a county to enter into a contract for reappraisal if the plan for reappraisal or the contract for reappraisal services had been approved by the Mississippi State Tax Commission (Commission).

¶ 5. As part of the process for statewide reappraisal, the Commission adopted rules governing the maintenance and updates of appraisals. In August of 1997, the Commission instituted changes to its rule 6, entitled “Standards of Acceptance,” to set forth standards used by the Commission in determining the acceptability of the real and personal property tax rolls for a county. As a result of these changes, all Mississippi counties were required to reappraise property throughout the county, beginning in 1998. A four-year update program was instituted in order to get all counties to update their tax rolls.

¶ 6. Rule 6 further stated that if an assessor or board of supervisors preferred to use a contractor to comply with the new rules, then the board or the tax assessor must take full responsibility to ensure that the contractor is complying with all standards and minimum requirements of the Commission.

¶ 7. In February of 1998, the Commission informed the Madison County Board of Supervisors (the Board) that Madison County’s real property tax rolls were not in compliance with the Commission’s rule 6 guidelines. The Commission required that Madison County submit a plan for achieving compliance within ninety days. As an incentive to become compliant, the Commission advised that Madison County would lose one mill of assessment funds (approx. $500,000) and the withholding of the county’s homestead reimbursement monies (approx. $1,500,000), if it failed to comply. On April 22,1998, Madison County, through its Tax Assessor, Gerald Barber, submitted a plan to bring Madison County into compliance by June 2001, which the Commission approved as required under Miss.Code Ann. § 27-35-165 (1980). Madison County began implementation of this program and was making progress toward its June 2001 goal.

¶8. Subsequent audits were performed to evaluate how well Madison County was implementing the agreed upon plan, and the audits indicated problems with the reappraisals. In light of these audits, the Commission entered an order dated October 4, 2000, which held that Madison County’s Class I and Class II properties were not in compliance with the Commission’s Rule 6 and ordered a new plan to be implemented for Madison County to come into compliance by July 2002.

¶ 9. In light of this new plan, Madison County decided to consider firms outside of its own resources to do the reappraisal work and contacted the Commission for a list of companies that perform reappraisal work in Mississippi. The Commission asserts that the purpose of this list, although provided when requested, was not a list of appraisers that it recommended, but a list of appraisers to whom information needed to be sent whenever changes to state property manuals were made. Many of the contractors on this list had not been certified by the Commission under its certification program. In the proceedings below, the trial court found that the Board requested that the Commission provide the Board with a list of firms that provide reappraisal services. The Commission provided that list, and Herring was one of the firms on the list.

¶ 10. In October and November of 2000, Madison County negotiated with Herring to perform the remainder of the appraisal work, for an initial figure of $500,000. On November 28, 2000, the Tax Assessor and Herring met to further expound on how much work would need to be done and discuss the cost in a little more detail. The price was approximately $745,000 at this point. The following day Herring faxed a letter to both the Board and to the Tax Assessor stating that the price to complete the job would be $900,000 plus $60,000 for software for the computer systems.

¶ 11. On December 5, 2000, the Tax Assessor, concerned with the substantial increase in cost from the beginning estimates, made a counter-offer to Herring for $776,825 and added some detail into the terms. On December 8, 2000, during a phone call with Herring, the Tax Assessor discovered that the Board had already approved the $900,000 proposal, so he prepared a contract with the $900,000 price and finalized the deal. This contract was let to Herring without seeking any proposals or bids from other contractors. The Board did not require Herring to post a bond until July 6, 2001, the date of the circuit court hearing. Herring was not a licensed appraiser.

STANDARD OF REVIEW

¶ 12. In Aikerson v. State, 274 So.2d 124, 127 (Miss.1973), this Court said: “It is a general rule in construing statutes this Court will not only interpret the words used, but will consider the purpose and policy which the legislature had in view of enacting the law. The Court will then give effect to the intent of the legislature. State Highway Comm’n v. Coahoma County, 203 Miss. 629, 32 So.2d 555, 37 So.2d 287 (1947).”

ANALYSIS

I. Whether the trial court erred in determining that the Board was not required to advertise for bids when contracting for reappraisal services.

¶ 13. Determination of the issues now before us turns on the application and interpretation of three statutes pertaining to contracts for land appraisal entered into by the Madison County Board of Supervisors and Herring Appraisal and Computer Services, Inc. The first is Miss Code Ann. § 27-35-101 (Rev.2002), which authorizes the board of supervisors to order surveys and appraisals of land for the purpose, among others, of taxation. It provides for a thirty (30) day notice by publication and requires that competitive bids be received for the work. The second is Miss.Code Ann. § 27-35-165, which states that “[n]o county shall expend funds for the reappraisal of property unless the plans for reappraisal or the contract for reappraisal is in conformity with the then existing rules and regulations of the state tax commission and has been approved by the state tax commission.” It does not make any provision for notice by publication or competitive bids. The third is Miss.Code Ann. § 19-3-69 (Rev.2003), which authorizes the board of supervisors, “in its discretion, [to] contract with certain professionals when the board determines that such professional services are necessary and in the best interest of the county”, and specifically lists licensed appraisers as professionals within the meaning of this statute.

¶ 14. The State argues that the contract between Madison County and Herring is illegal and void due to the failure of the Board to publish notice and receive bids pursuant to the requirements of Miss Code Ann. § 27-35-101, which reads, in pertinent part:

The board of supervisors of any county in this state is hereby authorized in its discretion, to have the eultivatable, un-cultivatable, or timbered lands of any owner, or of the entire county or any part thereof, surveyed and the acreage thereof determined and the value of the lands and of any timber, buildings or improvements thereon appraised by a competent person or persons, to be selected by the board of supervisors, the cost thereof to be paid from the general county fund. The board of supervisors of any county is hereby authorized to have the lots and blocks or other tracts in the municipalities of the county surveyed and the area determined, and the valuation thereof and of any buildings, structures, or other improvements thereon, appraised for the purpose of taxation in the same manner and at the same time that lands outside of municipalities are surveyed and appraised. In case a survey and appraisal is ordered, at least thirty (30) days’ notice by publication shall be given and competitive bids received for the work,

(emphasis added).

¶ 15. The State cites Lewis v. Mass Appraisal Services, Inc., 396 So.2d 35 (Miss.1981), asserting that Miss.Code Ann. § 27-35-101 also pertains to reappraisal services and therefore must be followed by the Board. In Lewis, taxpayers sued for damages and/or injunction alleging that a county board of supervisors acted unlawfully in letting a contract for reappraisal services, where the county advertised for bids for the reappraisal, but did not advertise for bids for the related data processing. The plaintiffs in the Lewis case were held not to have standing to sue, and the case was dismissed. However, the State maintains that this Court recognized that contracts for reappraisal services must be bid according to the statutory requirements of § 27-35-101. What this Court actually noted was that “the board of supervisors appropriated funds for the appraisal of property for the purpose of assessing ad valorem taxes which they are authorized by law to do, § 27-35-101.” The Court never reached the substantive question of whether a county must bid its reappraisal. Lewis, 396 So.2d at 37.

¶ 16. Alternatively, the State argues that even if the Board was not required to follow the mandates of § 27-35-101, it failed to comply with the very statutory provisions that it now argues apply when the board failed to submit its new plan of hiring a contractor to complete the appraisal work, as required by the Tax Commission’s Rule 6 and Miss.Code Ann. § 27-35-165. The State also notes that Madison County did not require Herring to post a bond as required by § 27-35-165, until after the July 6, 2001, hearing in this matter. The State (ex rel. Attorney General Jim Hood and Auditor Phil Bryant, the two officials charged with the application and enforcement of such statutes) further asserts that this Court should order the trial court to make a determination as to any monies due to Herring as payment for services rendered under a quantum meruit basis. However, the State fails to cite any authority to support this request; therefore, we decline to address the request. This matter should be addressed by the trial court on remand.

¶ 17. Madison County responds that, in this particular situation, Miss.Code Ann. § 27-35-101 does not apply and that it was not required to seek competitive bids. Instead, it asserts, Miss.Code Ann. § 27-35-165 is the applicable statute where the appraisal (or reappraisal) was ordered by the Tax Commission. Miss.Code Ann. § 27-35-165 reads, in pertinent part:

No county shall expend funds for the reappraisal of property unless the plans for reappraisal or the contract for reappraisal is in conformity with the then existing rules and regulations of the state tax commission and has been approved by the state tax commission. Such reappraisal may be accomplished by (a) contracting with private firms for performance of the work; (b) hiring private consultants to perform certain functions of the work along with overseeing the balance of the work which shall be performed by county employees trained by the consultant; or (c) employing, schooling and training county employees to perform all of the work under the supervision of the tax assessor. All contracts made pursuant to item (a) above shall require that the contractor furnish a payment and performance bond in an amount not less than one hundred percent (100%) of the contract price, which bond shall be conditioned, in part, to guarantee successful completion of the contract and may be conditioned upon payment of the cost of defense of any suits which may be brought against the county, the board of supervisors or the assessor arising out of such reappraisal for a period of one (1) year after completion thereof.

(emphasis added).

¶ 18. Madison County contends that it had the authority to enter into the contract with Herring pursuant to Miss.Code Ann. §§ 27-35-165 and 19-3-69 without advertising for bids. It asserts that neither statute is ambiguous, each authorizes the board to contract for the type of work at issue and neither incorporates an advertising-for-bids requirement. Madison County maintains that the Legislature, in enacting §§ 27-35-165 and 19-3-69, provided means other than advertising for bids to protect the public interest and the Legislature chose not to require advertising for bids for contracts entered into under those statutes. It further contends that § 27-35-101 does not apply to the type of work at issue (appraisal update work), but applies only if the Board makes a discretionary decision to order a survey and appraisal of county lands.

¶ 19. Because this case involves interpretation of statutes with very little case law to guide us, we look to the rules of statutory construction, and based on those rules we find Madison County’s arguments unconvincing. The most fundamental rule of statutory construction is the plain meaning rule, which provides that if a statute is not ambiguous, then this Court must apply the statute according to its terms. City of Natchez v. Sullivan, 612 So.2d 1087, 1089 (Miss.1992). Another related rule is the doctrine of in pari mate-ria, which provides that if a statute is ambiguous, then this Court must resolve the ambiguity by applying the statute consistently with other statutes dealing with the same or similar subject matter. James v. State, 731 So.2d 1135, 1138 (Miss.1999).

¶ 20. When the county board of supervisors orders an appraisal of real property for taxation purposes, Miss.Code Ann. § 27-35-101 provides the manner in which the contract is let and provides for a thirty (30) day notice by publication for competitive bids. Miss.Code Ann. § 27-35-165 provides that no county shall expend funds for property appraisal updates unless the contract for appraisal or plans for appraisal are in conformity with the rules and regulations of the State Tax Commission. Miss.Code Ann. § 19-3-69 provides that the board of supervisors may enter into a contract for professional services and lists appraisers as a profession within the meaning of that section.

¶ 21. These statutes unquestionably pertain to the same subject matter and must be read together. On their faces, the statutes are not ambiguous, but clearly set out provisions for conducting and/or contracting for appraisal of real property. The provisions of § 27-35-165 and § 19-3-69 do not operate instead of the provisions of § 27-35-101, but in addition to those provisions.

¶22. A third rule of statutory construction is that a specific statute controls over a general statute. Miss. Gaming Comm’n v. Imperial Palace of Miss., Inc., 751 So.2d 1025, 1028 (Miss.1999); Lenoir v. Madison County, 641 So.2d 1124, 1127 (Miss.1994); Townsend v. Estate of Gilbert, 616 So.2d 333, 335 (Miss.1993); Benoit v. United Cos. Mortg. of Miss., Inc., 504 So.2d 196, 198 (Miss.1987). This rule applies only when statutes are irreconcilably inconsistent. Miss. Gaming Comm’n v. Imperial Palace of Miss., Inc., 751 So.2d at 1028 (citations omitted). We find that the subject statutes are not irreconcilably inconsistent.

¶ 23. In the instant case, § 27-35-101 is the oldest and more general of the statutes at issue, authorizing surveys and appraisals of land, whereas § 27-35-165 pertains specifically to reappraisal for property or appraisal updates. Furthermore, long-standing case law indicates that where a statute provides for public work to be done but does not provide the manner for advertising for such work, the statute has the effect of adopting the general statute on the subject of advertising for bids for letting of those contracts. Board of Supervisors of Hancock County v. Cooper, 147 Miss. 57, 112 So. 682, 684 (1927), citing Swayne v. City of Hattiesburg, 147 Miss. 244, 111 So. 818 (1927), aff'd per curiam, 276 U.S. 599, 48 S.Ct. 320, 72 L.Ed. 724 (1928).

¶ 24. Based on our analysis of the applicable statutes, we hold that Madison County was required to comply with the advertising-for-bids provisions of § 27-35-101 for its reappraisal work, and the trial court erred in finding otherwise.

II. Whether the trial court erred in determining that the contract was valid as a personal service contract.

¶ 25. Miss.Code Ann. § 19-3-69 lists certain professionals with whom the board of supervisors may contract for services. The State argues that the trial court erred in determining that the contract was valid as a personal service contract because Herring is not a licensed appraiser. Miss.Code Ann. § 19-3-69, states, in pertinent part:

The board of supervisors of each county may, in its discretion, contract with certain professionals when the board determines that such professional services are necessary and in the best interest of the county ...
A professional within the meaning of this section shall be limited to:
(f) Appraisers, licensed by the Mississippi Real Estate Commission or as otherwise provided by law;

(emphasis added).

¶ 26. The State points out that this statute clearly causes the contract at hand to be invalid, as neither Herring nor his employees are licensed as the statute requires.

¶ 27. Madison County points to § 19-3-69 as support for the argument that, in this particular situation, it was authorized to enter into a contract with Herring, at the Board’s discretion. It further asserts that Herring and his employees do not have to be licensed and are protected by Miss.Code Ann. § 73-34-5(3) (Rev.2000) which provides that licensing provisions do not apply to any state, county, or municipal public officers or their salaried employees while performing their duties as such. The Board contends that the county deputized all the employees who were performing the work and that, therefore, those employees were exempt for any licensing requirements.

¶ 28. We do not agree. Miss.Code Ann. § 19 — 3—69(f) clearly establishes that appraisers with whom the county contracts for personal services must be licensed by the Mississippi Real Estate Commission or as otherwise provided by law, and Herring and his employees are not licensed by the Real Estate Commission or any other licensing body. Furthermore, Miss.Code Ann. § 73-34-5(3) refers to salaried employees of the county, and the contract between the county and Herring clearly requires that Herring and his employees remain employees of Herring; and therefore, they are not “salaried” employees of Madison County.

CONCLUSION

¶29. We hold that Miss.Code Ann. § 27-35-101 requires a county to advertise for bids for reappraisal services and must be read together with Miss.Code Ann. §§ 27-35-165 and 19-3-69. Furthermore, the trial court erred in determining that the contract was a valid personal services contract such that it was exempt from the advertisement-for-bids requirement. The circuit court’s judgment is reversed, and this case is remanded for further proceedings in the trial court consistent with this opinion.

¶ 30. REVERSED AND REMANDED.

SMITH, C.J., WALLER, P.J., EASLEY, CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.

      .The Tax Commission also set forth in rule 6 that it would no longer approve individual contracts entered into by counties for reappraisal services, although Miss.Code Ann. § 27-35-165 still required that the Commission approve each county's plan of reappraisal or contract for reappraisal. Mississippi statutes control over rules by administrative agencies.

      . This was not unusual and was considered typical of the results among the other 81 counties in Mississippi.

      . Class I property is a single family, owner-occupied dwelling, Class II is all other real estate.

      . Abrogated by Canton Farm Equipment, Inc. v. Richardson, 501 So.2d 1098 (Miss.1987) on the issue of whether the complaint must state that the public is invited to join in such a lawsuit.


source: Caselaw Access Project

author: GRAVES, Justice

license: Public Domain

text:
    F. Baxter LANE and Kathryn Lane v. A.J.M. OUSTALET, Jr., Alfonso Realty, Inc. and Jerry Rosetti, Esquire.
    No. 2000-CT-01814-SCT.
    Supreme Court of Mississippi.
    May 13, 2004.

      Robert H. Tyler, attorney for appellants.
    James C. Simpson, Jr., Richard Salloum, Gulfport, Fredrick B. Feeny, Fred Manni-no, Biloxi, W.F. Holder, II, Gulfport, attorneys for appellees.
   ON WRIT OF CERTIORARI

GRAVES, Justice

for the Court.

¶ 1. This case, before the Court on petition of F. Baxter Lane and Kathryn Lane for writ of certiorari from the decision of the Court of Appeals, involves a real estate transaction in which the Lanes purchased a single family residence from A. J.M. Ous-talet, Jr. The transaction was brokered by Alfonso Realty, Inc., through its agent, Sherry Owen, with Jerry J. Rosetti serving as closing attorney. After taking possession of the house, the Lanes discovered extensive, unrepaired termite damage and received an estimate for repairs of $35,000. They filed suit against Oustalet, Alfonso Realty, and Rosetti for breach of fiduciary duty and negligent misrepresentation. Evidence was presented indicating that Oustalet, Owen and Rossetti knew of the damage, that they knew that it was possibly quite extensive, and that they failed to pass this knowledge to the Lanes at or prior to closing.

¶ 2. At the conclusion of the Lanes’ case, the Circuit Court of Harrison County granted directed verdicts for all defendants. The Lanes appealed, and the case was assigned to the Court of Appeals, which affirmed in part and reversed in part. The appellate court found that the Lanes failed to establish the breach of contract charges against the seller because he did disclose a termite problem and told Owen to “do what was necessary to have the problem corrected.” Lane v. Oustalet, 850 So.2d 1143 (Miss.App.2002).

¶ 3. As to Rosetti, the Court of Appeals held that the buyers failed to meet the burden of proof with regard to his duty as closing attorney when they failed to offer expert testimony on the prevailing standards of professional care.

¶ 4. The Court of Appeals also held, however, that, as a dual agent, Alfonso Realty had a heightened fiduciary duty and that the purchasers met the burden of proving that Alfonso breached that duty, Therefore, it reversed and remanded as to that defendant.

¶ 5. Following the Court of Appeals’ decision, the Lanes and Alfonso Realty filed petitions for certiorari with this Court. Alfonso Realty’s petition was denied, and that of the Lanes has been granted. We affirm the Court of Appeals judgment as to Alfonso but reverse as to Oustalet and Rossetti. Accordingly, we reverse the circuit court’s judgment and remand this case for a new trial as to all three defendants.

FACTS

¶ 6. In 1996, the' Lanes, having made plans to move from New York to the Mississippi Gulf Coast, contacted Sherry Owen of Alfonso Realty and ultimately found Oustalet’s residence that they wished to purchase. The parties agreed to have Alfonso act in a dual agency capacity and executed a sales contract.

¶ 7. Prior to signing the Contract of the Sale and Purchase of Real Estate, the buyers received the Seller’s Disclosure Statement that included a notation that the home had prior termite infestation and repaired damage. The sales contract includes a provision requiring the seller to provide a termite certificate prior to or at closing, which reads pertinent part:

TERMITE CERTIFICATE AND RESPONSIBILITY OF BROKER. Seller shall, as a condition of sale, furnish Purchaser, prior to or at closing, a closing certificate from a licensed, termite company, that subject property shows no evidence of termite or other wood destroying insect infestation. If such infestation exists, seller shall furnish warranty of approved treatment and correct any structural damages caused by such infestation. If cost of said treatment is prohibitive to seller, or, if buyer deems damage unacceptable, contract shall be declared null and void and earnest moneys shall be refunded. By signing below, both Purchaser and Seller acknowledge that the Broker did not recommend any pest control company, in any way warrant the inspection or treatment made by the company, and is in no way responsible for any termite damage.

A special clause is also included in the sales contract allowing for a home inspection to be conducted within five days of the signing of the sales contract.

¶ 8. At Alfonso’s request, an Orkin Pest Control technician performed the pest inspection and completed the Mississippi Official Wood Destroying Insect Report, also referred to as the closing certificate or termite inspection report, on November 6, 1996. The report indicated unrepaired termite damage and recommended that a qualified expert be consulted to determine whether the damage needed to be repaired.

¶ 9. Orkin delivered this report to the closing attorney, who then notified Owen at Alfonso Realty of the unrepaired damage, and Owen arranged for a contractor who had previously repaired termite damage to the home to examine the damage. The contractor inspected the property and reported to Owen that, in his opinion, there was no loss of structural integrity. Owen testified that she notified the seller and the attorney, but did not notify the buyers. Rather, she relied on the attorney to include a copy of the termite report in the closing documents. She further testified that by obtaining the report and the home inspection arranged prior to the closing, she was doing everything she could to fulfill her duties to both the seller and the buyers.

¶ 10. The trial court concluded as a matter of fact that the buyers did not receive the termite inspection report at closing. The closing was conducted on November 18, 1996, and Rosetti testified that he was sure that he showed the buyers a copy of the contractor’s report. However, he could not say with certainty due to the large volume of closings he conducted during that week, and he apparently did not discuss it with them. He relied upon the fact that the termite inspection report was included in his closing documents and that it was his general practice to deliver it. The buyers expressly denied receiving the termite inspection report or the report of the contractor engaged by Owen.

¶ 11. The Lanes took possession of the home shortly after closing. They requested and were provided a copy of the Orkin report from Rosetti on January 20, 1997, and obtained an inspection from Terminix which revealed an area of 750 to 800 square feet of damage. The Lanes then obtained estimates from two different professional who both testified at trial that the cost of repair would be over $85,000.00.

¶ 12. The Lanes’ petition presents two questions for consideration:

1. When an agent serves the dual interest of two principals, should this Court recognize an exception to the general rule of agency that notice to the agent is constructive notice to.the principals?
2. When a claim of legal malpractice is based not on a violation of a standard of care, but on a violation of a standard of conduct, is expert testimony necessary?

DISCUSSION

Standard of Review

¶ 13, We have stated:

The standard of review in cases where a directed verdict,has been granted is as follows: “[t]his Court conducts a de novo review of motions for directed verdict. ... If the Court finds that the evidence favorable to the non-moving party and the reasonable inferences drawn therefrom present a question for the jury, the motion should not be granted.” Pace v. Fin. Sec. Life of Miss., 608 So.2d 1135 (Miss.1992) (citations omitted).

Entergy Miss., Inc. v. Bolden, 854 So.2d 1051, 1054 (Miss.2003). The Court of Appeals applied this standard in this case, as shall we.

The Agency Issue

¶ 14. The buyer, the real estate agent, and the attorney each knew of the termite inspection report and of the report of the contractor engaged by Owen. Each argues that it was the responsibility of the others to inform the buyers, who deny receiving both reports. Each would have us impute to the buyers constructive knowledge of these important documents through the agency of either the real estate agent or the attorney.

¶ 15. The law of agency generally imputes knowledge and information received by an agent in conducting the business of a principal to. the principal, even where that knowledge or. information is not communicated by the agent to the principal. Pittman v. Home Indem. Co., 411 So.2d 87, 89 (Miss.1982) (citing Home Ins. Co. of N.Y. v. Thornhill, 165 Miss. 787, 796, 144 So. 861, 863 (1932)). See also Weathersby v. Gore, 556 F.2d 1247, 1251 (5th Cir.1977) (applying Mississippi law). This general principle is fundamental to commerce; without the ability to rely on communications through representatives most trade would halt. The Court of Appeals relied on this principle in holding that, as a matter of law, the seller here satisfied his contractual obligation to the buyers by relying on the agents to communicate with them.

¶ 16. Here, however, Alfonso Realty served two masters, the buyer and the seller. Miss.Code Ann. § 73-35-21, allows such representation by real estate professionals if the dual representation takes place with the knowledge of all parties. In addition, the trial court found that Rosetti as well as Alfonso represented both parties. The Lanes argue that there should be an exception to the rule of imputed knowledge when the agent is acting in a dual capacity for two principals. The argument is that imputing the knowledge of the agent to both principals whose interests may become adverse is unreasonable and unfair. On appeal, the Lanes further argued that the attorney breached his fiduciary duty, not only in failing to inform them of the documents, but also in his failure to ensure that the seller complied with all of his contractual obligations. This argument proceeds to conclude that it is improper to constructively impute the knowledge of the seller to the Lanes, via the attorney, when it is unclear what principal he was representing when he received the termite inspection report.

¶ 17. In a number of jurisdictions, knowledge of a dual agent, acquired in the course of his employment, at least where the agent has not acted out of self interest or fraudulently, has been held, as between the principles, to be imputed to each of the principles even if not actually transmitted to them. Carlton v. Moultrie Banking Co., 170 Ga. 185, 152 S.E. 215 (1930); Farr v. Newman, 14 N.Y.2d 183, 250 N.Y.S.2d 272, 199 N.E.2d 369 (1964) (holding the rule applicable as to third parties.)

¶ 18. In an opinion which is somewhat at odds with Farr, at least one New York appellate court, recognizing that an agent serving dual interests occupies “a field of extremely delicate relationships,” observed:

[t]he important thing about the case in hand, however, is not fraud or the authority of the agent. It is the fact that when an agent undertakes to act in a transaction for two parties whose interests are or can become adverse, as a reasonable man might foresee, knowledge of facts arising from the transaction is not deemed the knowledge of the principal to operate as a waiver or to work otherwise to his detriment, unless the principal has actual and not merely constructive knowledge of the true facts.

Otsego Aviation Serv. Inc. v. Glens Falls Ins. Co., 277 A.D. 612, 102 N.Y.S.2d 344, 349 (1951), cited with approval in C.B. & T. Co. v. Hefner, 98 N.M. 594, 651 P.2d 1029 (Ct.App.1982.)

¶ 19. Alabama has also held that where an agent occupies a dual relation, notice acquired by him in such other agency is not binding on the principal. Florence v. Carr, 226 Ala. 654, 148 So. 148, 149 (1933).

¶ 20. It has been said also that even where there is no ethical breach, “an attorney must act with the greatest circumspection in the representation of multiple clients where their exists a possibility that their interest may conflict or be at cross purposes.” Stump v. Flint, 195 Kan. 2, 402 P.2d 794, 801 (1965) (attorney representing seller and purchaser in real estate transaction.) Put differently, whether real estate broker or attorney, although a professional may be permitted under law to represent both parties to a transaction, as a dual agent he must proceed with a heightened sense of duty and conduct to assure that he serves both masters’ interests fully.

¶ 21. The problem with rigidly imputing knowledge of the agent to both principals in a dual agency context is clear. Simply put, if everyone is responsible, then no one is responsible. In such a situation, the imputation, based on the presumption that the agent will do what is expected of him becomes a fiction which interferes with rather than promotes commerce and the interest of full disclosure. A proper analysis requires that we recognize that in a dual agency two distinct agencies are vested in the agent with separate duties and responsibilities as to each principal. If Alfonso and Rosetti, as agents of Oustelat, failed to communicate required information to the Lanes, then Oustelat breached his contract through the neglect of his agents. If, on the other hand, Oustelat delivered the information to Alfonso and Rosetti, as the agent of the Lanes, they are deemed to have received it and have no complaint against Oustelat. The arguments become circular and cannot lead to a resolution of the equities between the buyers and the sellers. No doubt, this can create special difficulties for the dual agent, but they are difficulties inherent in choosing to serve two masters.

¶ 22. We cannot establish a bright line for all cases as to whether knowledge held by the dual agent is to be imputed to either or both principals. Here, the jury could have inferred that Oustalet, in telling Owen to take care of the matter concerning termite certificate and any evaluation of the damage, was speaking to her as his own representative. In resolving that question, we better approach the dilemma as to Oustalet by asking whether the seller was acting reasonably in relying on the dual agents — the real estate agent and the attorney — to attend to the matter and in believing that they would properly inform the buyer. The question of Oustalet’s liability should have been submitted to the jury.

¶23. As to Alfonso Realty, the Court of Appeals correctly held that the real estate agency breached its duty to the buyers in simply assuming that the attorney would provide the termite inspection report to them. Owen had important information in her possession — the termite inspection report and the later report from the contractor which she contacted — and failed to disclose it to them. She recognized her obligation to communicate directly with the seller, but did not accord the same treatment to the buyers. It is not enough that she says that she thought she performed her duty by ordering the contractors inspection, which concluded that there was no structural damage. The Lanes were entitled to have all significant information in order to make their own decisions as to how they wanted to proceed under the sales contract. The jury should determine under the facts presented whether this breach caused damage to the Lanes.

¶24. The Court of Appeals analyzed the duty of an attorney to his client and concluded that, under the evidence, a reasonable person could conclude that there was an attorney-client relation between Rosetti and the buyers. The evidence was sufficient to allow the jury to conclude that the buyers did not receive the termite certificate at the closing conducted by Ro-setti and that he did not inform them of the contractor’s report. However, that court affirmed the directed verdict in his favor based on the belief that liability could not be established without expert testimony as to the standard of care imposed on a closing attorney. This brings us to the second issue presented by the petition for certiorari.

The Standard of Care Issue

¶25. The Lanes argued that Rosetti breached his fiduciary duty in failing to inform them of the unrepaired termite damage and in failing to give them a copy of the termite report at closing. The trial court decided and the Court of Appeals agreed that Rosetti owed a fiduciary duty to the Lanes. Rosetti in his testimony acknowledged that the Lanes had a right to expect him to enforce their rights under the contract and that he had a duty to close the sale in accordance with the contract between the buyer and the seller. Nevertheless, the Court of Appeals held that the directed verdict in favor of Rosetti was proper because the Lanes failed to offer expert testimony to support their malpractice claim.

¶26. The Lanes argue that their claim against Rosetti was not that he breached a standard of care of minimally competent attorneys, but that his failure to disclose the unfavorable termite report was a breach of standard of conduct. As such, they assert, there was no need to present expert testimony to support the claim because there were no special skills, knowledge, experience, or the like involved. We think the Lanes are correct. The Court has recognized that there are circumstances in which a jury might “determine the issue of an attorney’s negligence without the benefit of expert testimony.” Dean v. Conn, 419 So.2d 148, 151 (Miss.1982).

¶ 27. In an action involving a legal malpractice claim where the attorney had represented both the insurer and the insured in a personal injury action arising from an automobile accident, this Court held that legal malpractice may be a violation of the standard of care of exercising the knowledge, skill, and ability ordinarily possessed and exercised by members of the legal profession similarly situated, or the breach of a fiduciary duty. Hartford Acc. & Indem. Co. v. Foster, 528 So.2d 255, 285 (Miss.1988). We stated:

Some courts seem to distinguish a breach of the fiduciary obligations from legal malpractice. The prevailing and more reasonable view, however, is that legal malpractice encompasses any professional misconduct whether attributable to a breach of the standard of care or of the fiduciary obligations. In recognition of the dual bases of an attorney’s liability, some courts have referred to the fiduciary obligations as setting forth a standard of “conduct.” Thus, under the theoretical approach legal malpractice may be defined as “a breach by an attorney of either the standard of care or of the standard of conduct.” Thus, legal malpractice may be a violation of the standard of care of exercising the knowledge, skill, and ability ordinarily possessed and exercised by members of the legal profession similarly situated, or the breach of a fiduciary duty. The declaration here charges a fiduciary violation as the basis for this malpractice action.
To recover under the negligence theory of legal malpractice, the client must prove the existence of an attorney-client relationship, the acts constituting negligence, that the negligence proximately caused the injury, and the fact and extent of the injury. Hickox v. Holleman, 502 So.2d at 634; Hutchinson v. Smith, 417 So.2d 926 (Miss.1982); Thompson v. Erving’s Hatcheries, Inc., 186 So.2d 756 (Miss.1966). However, the legal malpractice alleged in this case is a violation of the standard of conduct, not breach' of the standard of care. The elements of this cause of action are the same as other legal malpractice actions except, instead of proving negligence, the plaintiff must prove a violation of the attorney’s fiduciary duty.

528 So.2d at 285. Clearly established law provides that expert testimony is necessary to establish the breach of a duty of care in a claim of legal malpractice; however, when the claim is for breach of the standard of conduct, we conclude that lack of expert testimony should not preclude the issue from being heard by a jury.

¶ 28. Whether Rosetti breached his fiduciary duty to the Lanes is not the kind of question that necessarily confronts a jury with issues that require specialized knowledge or experience. Rosetti was aware of a material fact affecting the terms of the Lane’s real estate purchase. He was aware of the importance of the noted unrepaired termite damage and demonstrated that awareness by informing Owen of the need to have a professional inspect the house. Furthermore, Rosetti had a duty to bring this fact to the attention of the Lanes and to be certain that they were aware of the termite damage to the house. The Lanes testified that they did not receive a copy of the termite report at closing, and the trial court found that Rosetti did not provide a copy to them. We find that a jury should have been allowed to make the determination on the issue of breach of the standard of conduct or breach of the fiduciary duty without an expert witness’ testimony. This issue is remanded to the trial court for proceedings in accordance with this Court’s decision.

CONCLUSION

¶29. Although dual agencies are allowed when all principals are aware of the multiple representation, they are fraught with special problems and require a heightened standard of conduct on the part of the agents in assuring that both masters are well served and that the agents’ responsibilities are fully performed as to all. Whether attorney or real estate agent, a professional assumes a heighten responsibility when assuming to act on behalf of parties who may have opposing interests. The dual agent assumes separate burdens as to each principal which must be fully fulfilled, and a principal instructing or informing his agent cannot be relieved of his responsibilities under a contract unless the circumstances are such as to indicate that the dual agent received and handled the instruction or information as the agent for the opposing party. Often, as here, these are factual circumstances which are best left to the trier of facts.

¶ 30. The standard of care and the standard of conduct are two distinguishable components of a legal malpractice claim. Where a legal malpractice claim is based solely on a breach of a standard of conduct, as opposed to a breach of a standard of care, proof of the violation of the fiduciary duty to disclose is sufficient to create a jury question which, under facts such as these may be determined without the benefit of expert testimony.

¶ 31. The judgment of the Court of Appeals as to Oustalet and Rosetti is reversed; as to Alfonso Realty, it is affirmed. We reverse the circuit court’s judgment and remand to the circuit court for a new trial consistent with this opinion as to all three defendants.

¶ 32. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED AS TO ALFONSO REALTY, INC. AND REVERSED AS TO A.J.M. OUSTALET, JR. AND JERRY ROSETTI, ESQUIRE. THE JUDGMENT OF THE CIRCUIT COURT IS REVERSED AND THIS CASE IS REMANDED FOR A NEW TRIAL.

SMITH, C.J. WALLER AND COBB, P.JJ., EASLEY AND CARLSON, JJ., CONCUR. DIAZ, DICKINSON AND RANDOLPH, JJ., NOT PARTICIPATING.

      . In contrast, when deciding whether the real estate agent committed an offense, the Court of Appeals stated: "[W]e are of the opinion that sufficient evidence was presented that a question existed for the jury to decide if Owen failed to uphold her fiduciary duty owed to the Lanes.” Lane v. Oustalet, 850 So.2d at 1152.


author: CARLSON, Justice, DICKINSON, Justice, EASLEY, Justice,

text:
    JANSSEN PHARMACEUTICA, INC., Johnson & Johnson and Yoshinobu Namihira, M.D. v. Bertha GRANT, et al.
    No. 2003-IA-00174-SCT.
    Supreme Court of Mississippi.
    May 13, 2004.
    Donna Brown Jacobs, Christy D. Jones, John C. Henegan, Robert L. Johnson, III, Jackson, Clifford C. Whitney, III, R.E. Parker, Jr., Vicksburg, attorneys for appellants.
    James W. Nobles, Jr., Jackson, Angelo John Dorizas, Eugene Coursey Tullos, attorneys for appellees.
    Before SMITH, C.J., COBB, P.J., and CARLSON, J.
   CARLSON, Justice,

for the Court.

¶ 1. Bertha Grant and three other Mississippi plaintiffs, Sarah Rebecca Garner, Tony Keen, and Daisy James (“Plaintiffs”), filed suit in the Smith County Circuit Court alleging injuries they claimed were caused by the prescription medication, Propulsid. The suit was filed against the New Jersey-based manufacturer Janssen Pharmaeeutica, Inc.; its New Jersey-based corporate parent Johnson & Johnson; a Mississippi physician from Warren County, Dr. Yoshinobu Namihira; and a pharmaceutical salesperson from Rankin County, Eric Norsworthy. Only Grant is a resident of Smith County. Garner is a resident of Scott County, and Keen and James are residents of Warren County. Also Keen and James, the two Warren County residents, were the only two plaintiffs who were patients of Dr. Namihira, who is also a resident of Warren County. The plaintiffs sought to hold the defendants jointly and severally liable to each plaintiff for compensatory and punitive damages.

¶ 2. On November 1, 2002, Janssen and Johnson & Johnson filed a Motion to Sever and Transfer Venue for Separate Trials, arguing that joinder was improper under Miss. R. Civ. P. 20 and that venue was improper in Smith County. The trial court denied the motion as well as Jans-sen’s and Johnson & Johnson’s ore tenus motion for certification of interlocutory appeal. On April 3, 2003, this Court granted Janssen’s and Johnson & Johnson’s Petition for Interlocutory Appeal by Permission Pursuant to M.R.A.P. 5(a). Finding that joinder was improper and that the trial court abused its discretion in denying the motion to sever and transfer, we reverse the trial court’s judgment and remand this case for severance and for a transfer of the severed cases to those jurisdictions in which each plaintiff could have brought his or her claims without reliance on another of the improperly joined plaintiffs.

FACTS

¶ 3. Propulsid is a prescription medication manufactured by Janssen Pharma-ceutica, Inc., used to treat gastroesopha-geal reflux disease (GERD). The Food and Drug Administration (FDA) approved Propulsid for sale in the United States in July 1993, after 12 years of research and clinical testing and more than five years of use in Europe by millions of patients. The 1993 package insert noted that there had been rare reports of tachycardia (rapid heartbeats) in patients taking Propulsid, but no incidents involving serious injury or death. In late 1994, Janssen received two reports of patients who experienced a potentially fatal heart arrhythmia known as “torsades de pointes.” These patients were also taking the drug ketoconazole, an antifungal medication. After a drug interaction study was performed, a new package insert was issued in February 1995, warning against taking Propulsid with this and other medications. During the seven years after FDA approval for sale in the U.S., the package insert for Propulsid was revised five times: in February 1995, October 1995, June 1998, May 1999 and January 2000. Along with the new package inserts, Janssen sent hundreds of thousands of “Dear Doctor” letters to inform physicians and pharmacists of the revised safety information. During the period from 1993 to 2000, there were reports of about 300 cardiac events among the approximately ten million patients given Pro-pulsid in the United States. Due to the potential seriousness of such an event, Janssen decided to make Propulsid available only through an investigational limited access program in May 2000. Janssen claims that this decision to withdraw Pro-pulsid from commercial distribution has sparked thousands of claims across the country that Propulsid has caused all manner of injuries.

ANALYSIS

¶ 4. On February 19, 2004, this Court decided Janssen Pharmaceutica, Inc. v. Armond, 866 So.2d 1092 (Miss.2004). As in Armond, today’s case is a products liability suit based on the adequacy of warnings which accompanied the medication, Propulsid. Armond controls the disposition of all issues raised in the case sub judice. In Armond we determined that joinder was improper and that the trial court abused its discretion in denying the motion to sever and transfer. Therefore, we reach the same conclusion here.

CONCLUSION

¶ 5. For these reasons, we reverse the trial court’s judgment and remand this case for severance and for a transfer of the severed cases to those jurisdictions in which each plaintiff could have brought his or her claims without reliance on another of the improperly joined plaintiffs.

¶ 6. REVERSED AND REMANDED.

SMITH, C.J., WALLER AND COBB, P.JJ., AND GRAVES, J., CONCUR. DICKINSON, J., CONCURS WITH SEPARATE WRITTEN OPINION. EASLEY, J., DISSENTS WITH SEPARATE WRITTEN OPINION. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

DICKINSON, Justice,

Concurring:

¶ 7. I fully concur with the majority in this case. I write separately only to point out that I see no justification for carving out an exception to the application of Rule 20 of the Mississippi Rules of Civil Procedure for “mature torts,” or in other words, asbestos cases. Rule 20 should apply equally to all torts, whether mature or immature.

¶ 8. Therefore, I do not believe we were correct in Armond when we implied that plaintiffs bringing asbestos claims may ignore the requirements of Rule 20 of the Mississippi Rules of Civil Procedure.

EASLEY, Justice,

Dissenting:

¶ 9. I dissent from the majority’s ruling today. The majority’s decision follows on the heels of our recent decision, Janssen Pharmaceutica, Inc. v. Armond, 866 So.2d 1092 (Miss.2004), in which I joined Justice Graves’s specially concurring opinion.

¶ 10. In Armond, Justice Graves advocated the adoption of a class action rule instead of relying upon Rule 20. In this case, as well as Armond, the majority provides little guidance in this new course of proceeding. The majority is quick to hold that the Propulsid claims do not arise out of the same transaction or occurrence, thus failing to meet the requirements of Rule 20. However, litigants, their lawyers, and the trial courts are left without a clue as to how to proceed in cases. Ar-mond was reversed and remanded because the claims did not arise out of the same transactions or occurrence and their join-der prejudiced the defendants. Id. at 1095(¶ 7). Specifically, the Court reversed the trial court ruling and remanded the case for severance of any defendant with no connection to Armond, including doctors that did not prescribe Propulsid to Armond. Id.

¶ 11. The Court in Armond referred to “mature” and “immature” torts. Id. at 1099 (¶¶ 25-26). Asbestos suits which have been present for “decades” are considered a “mature” tort and thus more amenable to aggregation. Id. at (¶ 25). On the other hand, in Armond, this Court classified Propulsid claims as “immature” torts since “scientific, legal, and factual issues related to ‘immature torts’ are novel and unsettled.” Id. at (¶ 26). Mass join-der is not considered to be appropriate until there have been enough trials and the “contours” of different claims are more readily known in the litigation. Id. (citing In re Bristol-Myers Squibb Co., 975 S.W.2d 601, 603 (Tex.1998)).

¶ 12. The Court’s holding in Armond and today’s decision in the case sub judice leave a number of unanswered questions. First, when does an immature tort mature? Even if it becomes a “mature” tort will the law have then so evolved as to make it impractical to return this tort to the realm of Rule 20 joinder? Second, is the proper course for the legal system simply to venture down the path of forcing multiple cases into multiple counties? Are we not creating yet another problem with numerous separate filings all over the state and potential back logs in the trial courts by not allowing joinder in certain cases? Are we subjecting defendants to increased costs in defending numerous lawsuits filed in various locations? The taxpayers will ultimately bear the burden of the increased litigation and increased filings in our court system. The court system will become rapidly clogged with yet more cases slowing the legal process further and increasing the burden on court staff and further straining the limited budget of our court system. Thirdly, where does a litigant stand in future cases, especially if his individual claim is relatively small, and therefore the economics of the matter would deter cases and deprive litigants of any recourse.

¶ 13. As this decision leaves too many questions unanswered, I must respectfully dissent. M.R.C.P. 20 is intended to streamline cases and promote judicial economy. Armond and this case create further problems which will ultimately impact Mississippi by clogging our court systems, strain our judicial staff and resources, and place an added cost burden on the taxpayer by increasing the litigation and subsequent court costs. In my opinion, this Court needs to take a more thorough look at this troubling situation, consider setting up a special committee to address the situation and seriously consider and investigate the alternative of implementing class actions in Mississippi, possibly following the federal court model set out in F.R.C.P. 23.

      . These facts are taken verbatim from Janssen Pharmaceutica, Inc. v. Armond, 866 So.2d 1092, 1095 (Miss.2004).


author: GRAVES, Justice,

text:
    KERR-McGEE CORPORATION and Kerr-McGee Chemical LLC v. MARANATHA FAITH CENTER, INC. and Sanderson Plumbing Products, Inc.
    No. 2003-CA-00046-SCT.
    Supreme Court of Mississippi.
    May 13, 2004.

      Scott Fuller Singley, Marc Darren Amos, J. Gordon Flowers, William Lawrence Deas, John M. Johnson, Jackson R. Sharman, III, Christopher A. Shapley, William ‘Trey’ Jones, John Edward Miller, Robert L. Gibbs, Barbara H. Johnson, Lana Kay Alcorn, attorneys for appellants.
    Bennie L. Turner, Jeffrey Johnson Tur-nage, Taylor B. Smith, Richard H. Spann, attorneys for appellee.
    Before WALLER, P.J., COBB, P.J., and GRAVES, J.
   GRAVES, Justice,

for the Court.

¶ 1. This is an appeal from a summary judgment granted in favor of Sanderson Plumbing Products, Inc. (“Sanderson”). The judgment dismissed all claims against Sanderson, including cross-claims against Sanderson filed by co-defendants in the action. Kerr-McGee Corporation and Kerr-McGee Chemical, LLC (“Kerr-McGee”) were co-defendants with Sander-son in a suit for damages brought by a neighboring property owner, Maranatha Faith Center, Inc. (“Maranatha”). Mara-natha sued claiming its property was contaminated by the release of hazardous materials by Kerr-McGee.

¶2. On February 18, 2000, Maranatha filed its complaint in the Chancery Court of the First Judicial District of Hinds County, Mississippi, against Kerr-McGee, Sanderson and other defendants. The case was removed to the United States District Court for the Southern District of Mississippi, remanded back to the Chancery Court of Hinds County, then transferred to the Circuit Court of Lowndes County, where it is currently pending.

¶ 3. On April 24, 2001, Sanderson filed cross-claims against Kerr-McGee and all other private party defendants seeking indemnity and/or contribution. Kerr-McGee filed cross-claims against Sander-son in response.

¶ 4. On July 12, 2002, Sanderson filed a motion for summary judgment on all claims and cross-claims. Maranatha did not oppose the motion, and as a result, the motion was subsequently granted by the court. Pursuant to M.R.C.P. 54(b), the court entered a final judgment in favor of Sanderson on December 6, 2002. It is from this judgment that Kerr-McGee appeals and submits the following issue on appeal:

WHETHER THE TRIAL COURT ERRED IN GRANTING SANDER-SON’S SUMMARY JUDGMENT ON KERR-McGEE’S CROSS CLAIMS.

FACTS

¶ 5. Maranatha Faith Center is a ministry in Columbus, Mississippi. In 1999, an oily substance, which was confirmed as creosote and other contaminants, was found on the church property. Kerr-McGee is located in an area of Columbus that includes a mixture of industrial and residential properties. Sanderson’s facility, which manufactures toilet seats and related products, is located immediately to the south of Kerr-McGee’s plant. Mara-natha owns property that is located slightly to the southeast of the Kerr-McGee and Sanderson facilities.

¶ 6. Maranatha contends that its property has been contaminated through the air, soil and/or groundwater. In its complaint, Maranatha alleged that the contaminants from Kerr-McGee flowed through various ditches and spread to Maranatha’s property. Maranatha also alleged that there were two contaminated ground plumes consisting of hazardous creosote beyond the premises of Kerr-McGee and that one plume allegedly runs along the western side of Kerr-McGee’s facility and travels through land owned by Sanderson. Mara-natha further alleged that another ditch runs along the eastern side of the Kerr-McGee facility and eventually travels into a ditch going to Maranatha’s property.

¶ 7. Sanderson denied any liability and filed a cross-claim for indemnity claiming that if it could be liable for the contamination by Kerr-McGee, then Kerr-McGee should indemnify it since the pollution originated at Kerr-McGee, according to the complaint. Kerr-McGee then alleged that Sanderson owed it indemnity.

¶ 8. Sanderson’s motion for summary judgment was supported by an affidavit of Dan Foss, an expert in environmental science and a properly certified hydro-geologist. In the affidavit, Foss based his opinions upon materials produced by the parties during discovery as well as tests conducted by the Mississippi Department of Environmental Quality and by experts retained by Kerr-McGee and Maranatha. Foss also based his affidavit upon his own testing and reviews. Foss’s testing showed only one possible contaminant detected on Sanderson property, but this contaminant was not present on the Mara-natha property.

¶ 9. Foss also included tests in his affidavit that were based on samples taken by the Mississippi Department of Environmental Quality and Maranatha’s experts. The tests revealed that a high concentration of contaminants found in the ditch that ran along Kerr-McGee’s property were also found on Maranatha’s property; however, none of the compounds detected on Maranatha’s property were detected in the ditch running through Sanderson’s property. Foss concluded in his affidavit that the alleged contamination on Marana-tha’s property did not result from the migration of contamination across Sander-son’s property. Foss’s affidavit was not contradicted, and the circuit court found it sufficient to grant summary judgment to Sanderson.

ANALYSIS

WHETHER THE TRIAL COURT ERRED IN GRANTING SANDER-SON SUMMARY JUDGMENT ON KERR-McGEE’S CROSS CLAIMS.

A. Whether the circuit court’s ruling on Kerr-McGee’s cross-claims for contribution was premature.

¶ 10. Kerr-McGee claims that the circuit court’s ruling on its cross-claims for contribution was premature. It avers that its claims for contribution against Sander-son will not arise and become ripe unless and until Maranatha obtains a judgment against Kerr-McGee. Kerr-McGee further avers that at the time of the circuit court’s ruling, the expert designation deadline had not expired. Under U.R.C.C.C. 4.04 A, Kerr-McGee claims that it was not required to designate expert witnesses and submit expert proof until 60 days prior to trial. The court granted summary judgment on December 6, 2002, and the trial was scheduled for May 19, 2003. Therefore, Kerr-McGee argues that the ruling was premature because it was made five months before the trial. Kerr-McGee contends that it has now had an opportunity to submit expert proof, and there is sufficient evidence to establish that Sanderson is a contributor to any contamination in the area.

¶ 11. Kerr-McGee relies on Griffin v. Delta Democrat Times Publishing Co., 815 So.2d 1246 (Miss.Ct.App.2002), where the Court of Appeals held that summary judgment was premature where the defendant refused to answer discovery and instead responded to Griffin’s request for discovery by filing a motion for summary judgment. Id. at 1247. The Court of Appeals stated that “before the trial judge examined this issue, he should have addressed the more introductory matter of whether summary judgment was premature because of the lack of discovery.” Id. at 1249. However, Griffin is unpersuasive and distinguishable because here there is nothing in the record to support the contention that Sanderson did not comply in answering discovery.

¶ 12. Kerr-McGee should have used the procedure set forth in Rule 56(f) of the Mississippi Rules of Civil Procedure to seek additional time to respond to summary judgment motions. Rule 56(f) states:

Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his position, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such order as is just.

¶ 13. Kerr-McGee did not seek any additional time to respond to the summary judgment motion. The record reflects that Kerr-McGee only submitted a response in opposition to the motion for summary judgment, which was not accompanied by any affidavits or other substantive evidence. The response simply stated that Sanderson was not entitled to summary judgment as a matter of law and did not raise any issue of the need for additional time to gather discovery. Therefore, because Kerr-McGee did not utilize Rule 56(f) to request additional time for discovery, the circuit court’s ruling on Kerr-McGee’s cross-claims was not premature.

B. Whether the order granting Sand-erson summary judgment wrongfully prohibits Kerr-McGee from seeking an allocation of fault to Sanderson at trial.

¶ 14. Kerr-McGee argues that the circuit court’s order wrongfully operates to prohibit it from seeking an allocation of fault to Sanderson at trial. Kerr-McGee refers to Miss.Code Ann. § 85-5-7(7), which states: “In actions involving joint tort-feasors, the trier of fact shall determine the percentage of fault of each party alleged to be at fault.” Kerr-McGee claims that Maranatha has utilized a “loophole” in § 85-5-7(7) and wrongfully usurped Kerr-McGee’s rights to make allegations of fault at trial with respect to Sanderson. Kerr-McGee alleges that Maranatha attempted to undermine Kerr-McGee’s rights to allocate fault at trial by including Sanderson in this suit and then completely failing to prosecute the claim. Kerr-McGee further alleges that Marana-tha made no effort to mount any opposition to Sanderson’s motion for summary judgment, which led to the award of summary judgment to Sanderson. This ruling will prevent an allocation of fault to Sand-erson at trial. Kerr-McGee’s argument on this issue is without merit.

¶ 15. Kerr-McGee failed to “go forward” in the face of an affidavit proving that Sanderson was not responsible for the contamination found on Maranatha’s property. Additionally, Kerr-McGee made no effort to contradict Sanderson’s affidavit or to prove that Maranatha or Kerr-McGee had a supportable claim against Sander-son. It simply submitted a response in opposition to the motion for summary judgment stating that Sanderson has not demonstrated that it was entitled to judgment as a matter of law. Furthermore, Kerr-McGee did not submit any affidavits, depositions, or answers to interrogatories demonstrating that any contaminants on Maranatha’s property passed through Sanderson’s property. In order to avoid entry of summary judgment, a party must be diligent and not rest upon allegations or denials in the pleading. A party must set forth “specific facts” showing that there are indeed genuine issues for trial. See Moore v. Mem’l Hosp. of Gulfport, 825 So.2d 658, 663 (Miss.2002) (citing additional authorities).

¶ 16. In Cothern v. Vickers, Inc., 759 So.2d 1241, 1245 (Miss.2000), this Court stated that in order “to defeat a motion for summary judgment, the nonmoving party must make a showing sufficient to establish the existence of elements essential to his case.” The Court went on to state that the nonmovant must present affirmative evidence that a genuine issue of material fact exists. Id. Here, Kerr-McGee did not present any evidence supporting its claim. Therefore, because Kerr-McGee did not make a showing sufficient to establish the elements of its case, the circuit court did not err in granting summary judgment.

¶ 17. Additionally, Kerr-McGee’s argument that it now has sufficient evidence to create a disputed issue of fact is without merit. Kerr-McGee seems to be suggesting that this Court reverse and “see” if something may develop later. Any desire by Kerr-McGee to withhold or reverse summary judgment because it “might” show something at trial has previously been rejected by the courts. Golden Oil Co. v. Exxon Co., USA, 543 F.2d 548, 551 (5th Cir.1976). Accordingly, the circuit court was correct in granting Sander-son summary judgment. Kerr-McGee had its day in court but chose to “remain mute.”

CONCLUSION

¶ 18. For these reasons, the circuit court did not err in granting Sanderson summary judgment on Kerr-McGee’s cross-claims. Therefore, we affirm the circuit court’s judgment.

¶ 19. AFFIRMED.

SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, CARLSON AND DICKINSON, JJ., CONCUR. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.


author: CARLSON, Justice, DICKINSON, Justice,

text:
    MISSISSIPPI DEPARTMENT OF TRANSPORTATION v. Maretha A. JOHNSON.
    No. 2002-CA-02100-SCT.
    Supreme Court of Mississippi.
    May 13, 2004.

      Dana Gail Deaton, Chris H. Deaton, Tu-pelo, attorneys for appellant.
    Bo Russell, Frank A. Russell, attorneys for appellee.
   CARLSON, Justice,

for the Court.

¶ 1. The Mississippi Department of Transportation (MDOT) appeals from an adverse judgment entered by the Circuit Court of Prentiss County pursuant to a bench trial. Finding that the circuit court’s judgment is unsupported by the record and contrary to law, we reverse the judgment and render judgment here in favor of MDOT.

FACTS AND PROCEEDINGS IN THE CIRCUIT COURT

¶ 2. On the evening of August 29, 1999, Melissa Crump (Crump) was driving her vehicle in a southerly direction on four-lane U.S. Highway 45 in Prentiss County. The four passengers in Crump’s vehicle that evening were Maretha A. Johnson (Johnson), Jessica Russell (Russell), Brian Turner (Turner) and Julie Buffaloe (Buffa-loe). As this vehicle and its five occupants traveled down the highway, the vehicle collided with a cow standing in the middle of the road. Crump testified that she did not see the animal until a second before impact and that she was unable to stop or avoid collision with the animal. As a result of this accident, Johnson was severely injured. Due to the severity of her injuries, Johnson was comatose, spent several weeks in the hospital, and underwent extensive rehabilitative therapy.

¶ 3. Johnson sued Bonnie and Glen Mau-ney, individually and doing business as

Hatchie River Farms (Mauney) and James Dees in the Circuit Court of Pren-tiss County, Mississippi. In her pleadings, Johnson alleged inter alia that Mau-ney was the owner of the cow, that Dees was the owner of the land adjacent to the accident scene, and that both Mauney and Dees were liable for negligently allowing the cow to escape and walk on to the highway. Johnson further alleged that the cow escaped from the fenced area near the accident site to graze on hay which Mau-ney had stored outside of the fence on MDOT’s right-of-way. Specifically, Johnson alleged that during a drought, Mauney negligently stored approximately ten large round bales of fertilized Bermuda hay outside of Dees’s fence, that Dees was negligent in maintaining his fence line, and that the cow which caused the accident was enticed to escape her confinement during this drought in order to have access to the hay on the other side of the fence. Through additional amendments, Russell, Turner and Buffaloe were subsequently allowed to join as party plaintiffs and MDOT was joined as a party defendant. Upon MDOT being joined as a party defendant, Johnson amended her pleadings to allege inter alia that it was the duty of MDOT to keep the right-of-way free of any encroachments and that the presence of the hay was a proximate cause of her injuries. During the discovery process, all claims asserted by Russell, Turner and Buffaloe were dismissed, and settlements were reached with all defendants except MDOT.

¶ 4. MDOT requested via motions (1) that it receive credit for the total amount of monies recovered by Johnson in her settlement with the other defendants, and (2) that the testimony of Johnson’s economist be excluded. There were no pretrial rulings by the trial court on these motions and Johnson’s economist was eventually allowed to testify during the bench trial.

¶ 5. Johnson then proceeded to a bench trial solely against MDOT. At trial, testimony was provided by Johnson, Crump, and Russell, who was also a passenger in the vehicle and daughter of one of Johnson’s attorneys. Russell testified to events surrounding the accident, and she likewise testified that she returned to the site the next morning to take photographs of the gate near the accident site. Those photographs were admitted into evidence. Mauney testified that following the accident, he checked his cattle and the fence around the property and that the fence was intact and no cattle were missing.

¶ 6. Testimony revealed that Mauney stored approximately ten large round bales of fertilized Bermuda hay several feet outside of the fenced pasture where he kept approximately 30 head of cattle. The hay was located at least 100 feet off the roadway, but in MDOT’s right-of-way. The hay remained on the right-of-way for approximately three months when the entire area was experiencing a drought.

¶ 7. At the conclusion of the bench trial, the trial judge directed each party to submit proposed findings of fact and conclusions of law. The trial judge eventually adopted in toto Johnson’s proposed findings of fact and conclusions of law and assessed Johnson’s damages at $1,500,000.00 and apportioned fault as follows: 40% to Crump, 40% to Mauney, and 20% to MDOT. The circuit court entered judgment for Johnson in the amount of $800,000.00 against MDOT (representing 20% of $1.5 million). MDOT’s Motion for a New Trial or, Alternatively, to Alter or Amend Judgment was denied. This appeal ensued.

STANDARD OF REVIEW

¶8. “A trial judge’s finding is entitled to the same deference as a jury and will not be reversed unless manifestly wrong. A reviewing court cannot set aside a verdict unless it is clear that the verdict is a result of prejudice, bias, or fraud, or is manifestly against the weight of credible evidence.” Bradley v. Tishomingo County, 810 So.2d 600, 602-03 (Miss.2002) (citing R. C. Constr. Co. v. Natl. Off. Sys., Inc., 622 So.2d 1253, 1255 (Miss.1993)). However, we have also stated that when the trial judge is sitting as the finder of fact, and chooses to adopt in toto a party’s proposed findings of fact and conclusions of law, we will conduct a de novo review of the record. Holden v. Frasher-Holden, 680 So.2d 795, 798 (Miss.1996).

This Court will not set aside such findings [of the trial judge] on appeal unless they are manifestly wrong. Id. [Dillon v. Dillon, 498 So.2d 328, 330 (Miss.1986)] Where the [trial judge] has failed to make his own findings of fact and conclusions of law, this Court will “review the record de novo.” Brooks v. Brooks, 652 So.2d 1113, 1118 (Miss.1995)(chan-eellor did not make his own findings, rather adopted litigant’s findings and applied wrong legal standard).

680 So.2d at 798. Here the proposed findings of fact and conclusions of law which Johnson’s lawyer mailed to the-judge are identical to the findings of fact and conclusions of law which the judge signed on November 12, 2002. There can be no doubt that the trial judge adopted and entered verbatim Johnson’s proposed findings of fact and conclusions of law. The only difference is that in the version signed by the trial judge, he “filled in the blanks” for the percentages of fault apportioned to Crump, Mauney and MDOT. Additionally, our standard of review is de novo on questions of law. Busick v. St. John, 856 So.2d 304, 308(¶ 7) (Miss.2003) (citing Miss. Farm Bureau Cas. Ins. Co. v. Curtis, 678 So.2d 983, 987 (Miss.1996); Seymour v. Brunswick Corp., 655 So.2d 892, 895 (Miss.1995)). Thus, consistent with Holden, we today conduct a de novo review not only of the law, but also the trial judge’s findings of fact.

¶9. While stated differently, Johnson and MDOT in essence agree as to the appropriate issues for us to consider in today’s appeal: Did the trial judge err in (1) adopting verbatim Johnson’s proposed findings of fact and conclusions of law (and were these findings of fact manifestly wrong); (2) failing to apply the active/passive dichotomy fundamental to Mississippi negligence law; (3) allowing Jessica Russell to offer opinion testimony as to the type animal involved in the vehicular accident; (4) finding the existence of a duty and breach of that duty on the part of MDOT; (5) concluding that Johnson was totally disabled and allowing Johnson’s economist to testify to the expected net cash value of lost income on the basis of total disability; (6) failing to reduce the amount of the total judgment by applying credit for monies received from the settling defendants; and, (7) entering a final judgment in excess of the statutory cap as set out under the provisions of the Mississippi Tort Claims Act (MTCA), Miss.Code Ann. §§ 11^46-1 et seq. (Rev.2002). Finding one issue dispositive of this appeal, we need address only that issue.

I. WHETHER THE TRIAL COURT ERRED WHEN IT FAILED TO APPLY THE ACTIVE/PASSIVE DICHOTOMY FUNDAMENTAL TO MISSISSIPPI NEGLIGENCE LAW?

¶ 10. MDOT contends that the trial judge erred by finding MDOT was negligent in the underlying action. In the complaint, Johnson alleged that MDOT was negligent due to its failure to have the bales of hay removed from the right-of-way. Johnson’s logic follows that because MDOT failed to have the bales of hay removed from the right-of-way during the drought period, the cow was enticed to escape from the fenced pasture to eat the hay and then wander onto the roadway, resulting in the collision with the vehicle in which Johnson was a passenger.

¶ 11. In order to prevail on a negligence claim against MDOT, Johnson must:

establish by a preponderance of the evidence each of the elements of negligence: duty, breach, causation and injury. Leflore County v. Givens, 754 So.2d 1223, 1230 (Miss.2000) (citing Lovett v. Bradford, 676 So.2d 893, 896 (Miss.1996)). In Mississippi, a plaintiff may espouse one of three theories in support of a claim of negligence such as this: (1) that the defendant’s own negligence created a dangerous condition which caused plaintiffs injury; (2) that the defendant had actual knowledge of the danger she faced as an invitee or (3) that based upon the passage of time, the defendant should have known about the dangerous condition caused by another party and if defendant had acted reasonably,' i.e., constructive knowledge of that condition should be imputed to that defendant. K-Mart Corp. v. Hardy ex rel. Hardy, 735 So.2d 975, 980 (Miss.1999) (citing Downs v. Choo, 656 So.2d 84, 86 (Miss.1995); Munford, Inc. v. Fleming, 597 So.2d 1282, 1284 (Miss.1992)). The plaintiff bears the burden of presenting significant probative evidence that the defendant was not only negligent, but also that such negligence was the proximate cause of the dangerous condition that resulted in the plaintiffs injury. Id.

Miss. Dep’t of Transp. v. Cargile, 847 So.2d 258, 262 (¶ 11) (Miss.2003). It is the constructive knowledge theory upon which Johnson relies.

¶ 12. In placing a duty upon MDOT to keep the right-of-way clear, Johnson relies on Miss.Code Ann. § 65-1-169 (Rev.2001), which states in pertinent part:

“The State Highway Commission is hereby authorized to maintain property acquired for highway purposes free and clear of any obstruction, encroachment or any other use not authorized by the commission.”

¶ 18. Johnson also relies on the testimony of Neal Peach, MDOT’s district maintenance supervisor, to establish a duty. Peach testified as follows:

Q. Why is that law there, because it would be a danger to motorists?
A. Well, highway right-of-way belongs to the State of Mississippi and we are charged with keeping that right-of-way clear of encroachments. Every encroachment is not necessarily a danger to the traveling public. It’s just the fact that we own the right-of-way and we are charged with that legal responsibility.
Q. To remove it. And one of those things was hay; is that right?
A. Yes.
Q. And y’all had a duty to remove that from the right-of-way. Is that correct?
A. If we knew it was on the right-of-way, yes, sir.

Undisputed testimony established that the bales of hay were at least 100 feet off the highway and adjacent to the property owner’s fence line. Peach’s testimony further revealed that there is a difference between an encroachment and what MDOT considers a hazard; specifically, MDOT recognizes a “clear zone” on this particular roadway to be 30 feet from the edge of the pavement and that “[ajnything past the 80 feet is not considered to be a hazard.” Indeed, we have stated:

Motorists do not have the unlimited right to use every foot of a highway right-of-way and the Highway Commission is under no duty to furnish broad shoulders along every stretch of highway for the use of the motoring public.

Milam v. Gulf, Mobile & O.R. Co., 284 So.2d 309, 311 (Miss.1973). While MDOT had authorization to have the encroachment removed, MDOT did not have a duty to do so. The hay did not pose a direct hazard to traveling motorists because the bales were located beyond the “clear zone.”

¶ 14. Further, even if MDOT had a duty to have the hay removed, the “Mississippi rule of law regarding independent, intervening causes more or less establishes an active/passive dichotomy.” Glorioso v. Young Mens Christian Ass’n, 556 So.2d 293, 296 (Miss.1989). In Glorioso, we refused to impose liability upon a party whose actions or omissions were passive in nature where another party actively placed into motion an intervening cause which lead unbroken in sequence to an injury. See also Saucier v. Walker, 203 So.2d 299 (Miss.1967), Stewart v. Kroger Grocery Co., 198 Miss. 371, 21 So.2d 912 (1945); Louisville & N. Railroad Co. v. Daniels, 135 Miss. 33, 99 So. 434 (1924).

¶ 15. In Glorioso, a young boy was killed by a large pole left lying on the ground in the park by the city. The young boy and the other members of his baseball team were offered the prize of ice cream by a YMCA counselor to the one who could stay on the pole the longest while the counselor and others shook the pole. The shaking of the pole caused it to become extracted from the small indentation where it had been positioned and to also roll down the hillside, crushing and killing the boy. This Court found that even if the city had been negligent in placing the pole, the act of shaking the pole was an independent, intervening cause. In finding that the city was not liable for the death, we said:

Although one may be negligent, yet if another, acting independently and voluntarily, puts in motion another and intervening cause which efficiently thence leads unbroken in sequence to the injury, the later is the proximate cause and the original negligence is relegated to the position of a remote and, therefore, a non-actionable cause. Negligence which merely furnishes the condition or occasion upon which injuries are received, but does not put in motion the agency by or through which the injuries are inflicted, is not the proximate cause thereof.

Glorioso, 556 So.2d at 296 (quoting Miss. City Lines, Inc. v. Bullock, 194 Miss. 630, 13 So.2d 34, 36 (1943)).

¶ 16. In contrast, the record here is completely void of any active negligence by MDOT. Assuming arguendo that MDOT was negligent by permitting the hay to stay on the right-of-way, there was a series of independent, intervening actions which lead to the accident. MDOT did not place the hay on the right-of-way nor did it place the cow in the highway. At most, MDOT “merely allowed hay to remain on its right-of-way at a safe distance from the highway,” a condition which was not established to be a proximate cause of the accident.

¶ 17. The trial court found that Mau-ney’s pasture was insufficient for feeding the cattle and that one of his cows broke though the gate, ate the hay, then stood on the roadway where it was struck by Crump’s vehicle. However, there was no evidence that the cow belonged to Mauney, who testified that the animal did not belong to him and that he was not missing any of his cows. Crump also testified that she was driving late at night on an unlit highway slightly in excess of the posted speed limit and that she did not see the cow until the cow was about twelve feet away.

¶ 18. This Court acknowledges that the injuries sustained by Johnson were indeed severe. Johnson was hospitalized for over two months, has incurred medical bills in excess of $215,000, has sustained lost wages and wage-earning capacity, has experienced immense pain and suffering, and has diminished use of her right arm. However, even as here where grievous injuries and damages have been incurred, not every person injured will have a legal remedy against every defendant. In this instance, MDOT did not have a duty to remove the hay. Even if such a duty existed, there has been no showing that MDOT’s permitting the hay to remain in the right-of-way was a proximate cause of Johnson’s injuries. A meticulous review of the record in today’s case reveals that, as to MDOT, evidence of duty, breach of duty and causation is woefully lacking.

CONCLUSION

¶ 19. We find that MDOT did not have a duty to have the encroachment removed from its right-of-way since the hay was located beyond the “clear zone” and did not pose a direct hazard to the traveling public. Even if such a duty existed, Johnson failed to prove that any action or inaction of MDOT was a proximate cause of the motor vehicle accident from which she sustained her serious injuries. For these reasons, this Court reverses the judgment entered against MDOT by the Circuit Court of Prentiss County, and renders judgment here in favor of MDOT, finally dismissing Maretha A. Johnson’s complaint and this action with prejudice.

¶ 20. REVERSED AND RENDERED.

SMITH, C.J., WALLER AND COBB, P.JJ., CONCUR. DICKINSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY EASLEY AND GRAVES, JJ. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

DICKINSON, Justice,

dissenting.

¶ 21. The single question in this case is whether injury to the plaintiff was a foreseeable consequence to MDOT’s breach of its duty to maintain the right-of-way. The majority believes not. I disagree.

¶ 22. Liability for negligence lies where foreseeable harm was suffered by the plaintiff as a proximate result of the breach by defendant of a duty. The only question in reasonable dispute is whether the harm suffered by Johnson was reasonably foreseeable to MDOT.

¶ 23. A discussion of foreseeability should, I think, begin with Chief Judge Cardozo’s familiar opinion in Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99 (1928). Finding the plaintiffs damages to be unforeseeable, Judge Cardozo stated:

The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension .... It was not necessary that the defendant should have had notice of the particular method in which an accident would occur, if the possibility of an accident was clear to the ordinary, prudent eye.

Id., 248 N.Y. at 344, 162 N.E. 99 (citations omitted).

¶ 24. Foreseeability (the risk reasonably to be perceived), to the majority, is a question of whether the hay, itself, posed a direct, foreseeable, danger to motorists. The majority points out that the hay was approximately 100 feet from the roadway, in the “clear zone,” posing no “direct hazard” to the traveling public. I agree. However, risk and foreseeability cannot be examined in a vacuum. Risk must be assessed and evaluated in light of the circumstances actually or constructively known by MDOT. What is foreseeable depends on what reasonably might happen under the circumstances, not what probably will happen.

¶ 25. I agree that the risk of a motorist crashing into the hay was not foreseeable. I also notice that a motorist did not run into the hay in this case. What did happen, it seems to me, was a foreseeable risk; the risk that, left outside the fence, the hay would lure cows to breach the fence and wander upon the roadway.

¶26. I must admit that, during the fertile, rainy season, cows can be expected to concentrate on the abundance of grass available in the pasture. Cows under such conditions will generally ignore the fence and all that is outside it. Thus, little danger is posed by placing hay on the highway side of the fence.

¶ 27. But what is one to think a cow— or 30 cows — likely to do during a drought when, looking up from the bare ground, it observes through the fence — and smells— ten large, round bales of fertilized, Bermuda hay. It seems to me one should expect the cow to do what it can to get to the hay. And should one of them succeed (as cows often do), shouldn’t MDOT expect that the cow might wander upon the highway and cause harm to a motorist such as Johnson? Stated differently, I see no difference on the one hand in leaving a fence unrepaired, or a gate open, so that cows may get out, and on the other, leaving the hay on the ground just outside the fence during a drought, luring the cows out. In either case, the foreseeable risk is that a cow will get upon the roadway and a motorist will be injured. The only difference is that keeping the fence repaired and the gate closed is the farmer’s responsibility, and keeping the hay off the MDOT right-of-way is MDOT’s responsibility.

¶28. The majority states that, to prevail, Johnson may establish negligence by showing: “(1) that the defendant’s own negligence created a dangerous condition which caused plaintiffs injury; (2) that the defendant had actual knowledge of the danger she faced as an invitee or (3) that based upon the passage of time, the defendant should have known about the dangerous condition caused by another party and if defendant had acted reasonably, i.e., constructive knowledge of that condition should be imputed to that defendant.” K-Mart Corp. v. Hardy ex rel. Hardy, 735 So.2d 975, 980 (Miss.1999) (citing Downs v. Choo, 656 So.2d 84, 86 (Miss.1995); Munford, Inc. v. Fleming, 597 So.2d 1282, 1284 (Miss.1992)). It is the constructive knowledge theory upon which Johnson relies. This recitation of the law is, in my view, precisely correct and on point. However, the subject of constructive knowledge is inexplicably abandoned.

¶ 29. The record establishes that MDOT was aware of the presence of the cows and the duration and intensity of the drought. The hay lay in plain view to MDOT for three months, allowing more than adequate time for discovery and correction of the dangerous condition. Thus, the requirements of K-Mart Corp. v. Hardy are easily satisfied.

¶ 30. In my view, the independent, intervening cause analysis provides no protection to MDOT. Glorioso, discussed by the majority, involved an act of negligence on the part of the city, which was absolved because of a later act of negligence by counselors and others who shook the pole, leading to the death of the child. Here, the last negligent act was MDOT’s failure to clean up the hay under conditions which should have placed MDOT on notice that the hay would lure the cows through the fence and onto the roadway, creating a hazard for motorists.

¶ 31. Under the circumstances of this case, I would affirm the judgment against MDOT.

EASLEY AND GRAVES, JJ., JOIN THIS OPINION.

      . References are made in the record and briefs to the animal being a "cow,” a “bull,” a "cow or bull,” a "Brahma cow,” etc. It appears from the record, including the photographs, that the animal literally exploded upon impact. For clarity, we will refer to the animal simply as a "cow.”

      . This name also appears in the record as "Mooney."

      . Johnson’s mother initially commenced this lawsuit as the duly appointed conservator of Johnson’s person and estate, but after the chancery court allowed the conservatorship to be closed, Johnson was substituted as a party plaintiff and prosecuted this litigation in her own name.

      . In applying our de novo review of a trial judge’s findings of fact based on a verbatim adoption of a party's proposed findings of fact and conclusions of law (FOFCOL), we are in no way condemning the long-accepted practice of a trial judge’s directing the parties to submit proposed FOFCOL. Even though our State has come a long way in providing support staff for our trial judges, we acknowledge that our trial judges still work under severe time constraints based on their crowded dockets. Certainly when parties submit separate FOFCOL, the trial judge and that judge's staff attorney/law clerk will have excellent models from which to work. Today's computer technology allows the trial court to organize its own FOFCOL from those provided by the parties. We simply remind our trial courts that when they feel compelled to adopt verbatim a party's proposed FOFCOL, then we are likewise compelled to apply a de novo standard of review of the trial court's findings of fact as opposed to a deferential standard of review.

      . While there is little mention in the record of the MTCA, it is obvious that this case proceeded to a bench trial as to MDOT only, under the provisions of the MTCA.

      . The case is familiar because it is used by law schools across the nation to demonstrate the principle of foreseeability. Curiously, this Court has never adopted Palsgraf and has never cited it in a personal injury case.

      . So obvious and foreseeable is the danger of loose cows causing automobile accidents, that the Legislature places the burden of proof on the owner to prove lack of negligence. See Miss.Code Ann. § 69-13-111 (Rev.2001).