author: LFOGG, J.

text:
    CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE v. Evest Antonio BROUSSARD, Evest Antonio Brousssard, II, and Frances Broussard Holliday
    No. 2002 CA 0166.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2002.
    Rehearing Denied Feb. 3, 2003.

      Michael E. Ponder, Parish Attorney, Robert H. Abbott, III, Baton Rouge, for Plaintiffs — Appellees City of Baton Rouge and Parish of East Baton Rouge.
    Robert M. Hoyland, Baton Rouge, for Defendants — Appellants Evest Antonio Broussard, Evest Antonio Broussard, II, and Frances Broussard Holliday.
    Before: FOIL, FOGG, and KLINE, JJ.

      . Retired Judge William F. Kline, Jr. is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   LFOGG, J.

At issue on appeal in this expropriation case is the value assigned to the expropriated property and the deduction of remediation costs from that sum. For the following reasons, we affirm.

Pursuant to LSA-R.S. 19:102, the City of Baton Rouge and the Parish of East Baton Rouge (hereinafter collectively referred to as the “City-Parish”) filed suit against Evest Antonio Broussard, Evest Antonio Broussard, II, and Frances Brous-sard Holliday (hereinafter collectively referred to as the “Broussards”), seeking to expropriate certain immovable property (“Broussard Tract”), on which their business, Broussard Paint and Wallpaper, was located. Subsequently, the parties entered into a partial consent judgment whereby the Broussards agreed to transfer title to the property to the City-Parish, and the City-Parish agreed to pay the Broussards the undisputed sum of $159,800 ($250,000 less remediation costs in the sum of $90,200). The Broussards reserved the right to contest the amount of the full compensation to which they are entitled, including the value of the property and improvements, relocation costs, economic damages, and attorney’s fees, and the City-Parish reserved its right to seek additional remediation costs.

After trial on the merits, the trial court rendered judgment in favor of the defendants in the sums of $250,000 for their loss and $50,000 for moving expenses, less credits to the City-Parish for the estimated remediation cost of $90,200 and the $159,800 sum previously paid to the defendants, leaving the sum of $50,000 due to the defendants. The Broussards appealed, and the City-Parish answered the appeal.

In 1974, the Louisiana Constitution was amended to provide that, in an expropriation, “the owner shall be compensated to the full extent of his loss.” La. Const. Art. I, Sec. 4. Pursuant to this amendment, the owner is no longer limited to the market value of his property, if such does not fully compensate his loss; rather, lathe loss of business and replacement costs are compensable items of damages in expropriation cases. State Through Dep’t of Highways v. Constant, 369 So.2d 699 (La.1979). Also, the cost of relocation, inconvenience and loss of profits is compensable under this provision. State, Dep’t of Transp. and Dev. v. Dietrich, 555 So.2d 1355 (La.1990).

The determination of what amount will compensate a landowner to the full extent of his loss must be made on the basis of the facts of each case and in accordance with the uniqueness of the thing taken. State, Dep’t of Transp. and Dev. v. Hammons, 550 So.2d 767 (La.App. 2 Cir.1989); Southern Natural Gas Co. v. Poland, 406 So.2d 657 (La.App. 2 Cir. 1981), writ denied, 412 So.2d 86 (La.1982), cert. denied, 459 U.S. 833, 103 S.Ct. 75, 74 L.Ed.2d 73 (1982). The determination by the trial court of what amount will compensate an individual will not be disturbed on appeal in the absence of manifest error. State, Dep’t of Transp. and Dev. v. Sheridan, 517 So.2d 415 (La.App. 1 Cir.1987).

The trial court awarded replacement cost for the Broussards’ loss in the sum of $250,000 as valued by Michael J. Defelice, an expert in the field of real estate appraisal employed by the City-Parish. This award is uncontested on appeal. However, the Broussards aver the trial court erred in deducting from this award the cost of remediation in the sum of $90,200.

Barry J. Hebert, an environmental consultant, was accepted by the trial court as an expert in the field of subsurface investigations involving assessing, monitoring and remediation. He conducted a Phase II Environmental Site Assessment of the Broussard tract. This study included the collection of samples to determine whether certain constituents were present. During the study, Hebert discovered the presence of some total petroleum hydrocarbons in the diesel and oil range and the presence of one or more underground storage tanks. He estimated the cost to remediate this property to be $90,200.

|4The Broussards concede that the deduction of remediation costs are appropriate when the value of an expropriated property is determined using the market value of the property, but assert that the deduction of remediation costs is incorrect when the replacement cost approach is employed in valuing the owners’ loss, as is the case herein. They cite no jurisprudence in support of this assertion, and we have found none. Furthermore, we disagree with their assertion that the analysis employed in the Constant case demands that result. In Constant, the court held that, under the 1974 amendments to the Louisiana Constitution, more factors than simply fair market value must be considered in fully compensating an owner in an expropriation; the court must look to the particular facts and circumstances in each case to determine what amount will compensate an owner “to the full extent of his loss.” State Through Dep’t of Highways v. Constant, 369 So.2d 699 (La.1979). Applying this tenet, we find no error of law in the assessment of remediation costs to the landowner.

The Broussards assert the trial court erred in failing to award them additional damages for their claims for negligence, detrimental reliance, and delay damages. These theories of recovery rely essentially of the same series of events. In essence, the Broussards contend the City-Parish misled them about the length of time the expropriation process would take, and this delay caused them to incur business losses and suffer emotional damage over a period of several years. The trial court rejected these claims, finding no factual basis for these theories of recovery. The instant record amply supports the trial court’s determination that the evidence failed to support these claims. Therefore, these findings of fact cannot be manifestly erroneous. Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993).

The Broussards also claim the trial court erred in failing to award them attorney’s fees, contending attorney’s fees are mandated by La. Const. Art. 1, § 4’s | ^guarantee of compensation “to the full extent of his loss.” We disagree. The amount of attorney fees awarded in expropriation cases is discretionary with the trial court. LSA-R.S. 19:109 A. Relevant factors include the ultimate result obtained, the responsibility incurred, the importance of the litigation, the amount of money involved, the extent and character of the work performed, legal knowledge, attainment and skill of the attorneys, number of appearances, intricacies of the facts involved, diligence and skill of counsel, and the court’s own knowledge. State, Dep’t of Transp. and Dev. v. Williamson, 597 So.2d 439 (La.1992). Furthermore, the court is not bound by a contingency fee contract or the amount actually charged by the attorney. Taylor v. Production Serv., Inc., 600 So.2d 63 (La.1992). The trial court’s discretion is great and will not be disturbed in the absence of a clear abuse of that discretion. Red River Waterway Com’n v. Fry, 628 So.2d 38 (La.App. 2 Cir.1993), writ denied, 93-3050 (La.2/4/94), 633 So.2d 581.

Herein, the amount finally awarded for the value of the taking is not substantially higher than the amount offered by the authority initiating the taking. Therefore, we find no abuse of the trial court’s discretion in not awarding attorney’s fees.

Finally, the City-Parish answered the appeal, contesting the trial court’s award of moving expenses in the sum of $50,000 to the Broussards. At trial, Charles D’Agostino, an expert in business management, testified on behalf of the Broussards. He opined that the cost to move Broussard Paint and Wallpaper to be $50,000, including $35,000 for advertising expenses. The trial court has great discretion in assessing the credibility of expert witnesses and accepting or rejecting their opinions. LSA-C.E. art. 702; Annina v. Eschette, 2000-1892 (La.App. 1 Cir. 11/21/01), 814 So.2d 13, writ denied, 2001-3375 (La.3/8/02), 811 So.2d 880. Given the expert testimony presented, we are unable to find manifest error in the | fitrial court’s award.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs are assessed against the appellants, Evest Antonio Broussard, Evest Antonio Broussard, II, and Frances Broussard Holliday.

AFFIRMED.


source: Caselaw Access Project

author: J^FOGG, J.

license: Public Domain

text:
    Ann MURPHY v. GILSBAR, INC., et al.
    No. 2002 CA 0205.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2002.
    Rehearing Denied Feb. 3, 2003.

      R. Bruce Maemurdo, Baton Rouge, for Plaintiff — Appellant Ann Murphy.
    Murphy J. Foster, III, Cade A. Evans, Baton Rouge, for Defendant — Appellee Denise Vinet.
    Before: FOIL, FOGG, and KLINE, JJ.

      . Retired Judge William p. Kline, Jr. is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   J^FOGG, J.

By this appeal, the plaintiff contests the dismissal of her suit for legal malpractice. For the following reasons, we affirm.

The instant case involves a claim of legal malpractice that arises from Denise Vi-net’s former representation of Ann Murphy in an employment discrimination action against Ciba-Geigy Corporation. The petition was filed on February 25, 1997 in the Eighteenth Judicial District Court, and later removed to the United States District Court, Middle District of Louisiana.

During a status conference before a federal magistrate, Vinet was informed that Murphy’s claim was untimely pursuant to 42 U.S.C. § 2000e-5(f)(l). Counsel for Ciba-Geigy, then, asked Vinet to voluntarily dismiss Murphy’s claim, which she refused to do. Vinet advised Murphy that her claim appeared to lack merit, that she no longer wished to represent her, and that she could expect Ciba-Geigy to file a motion asserting that Murphy’s claim was not timely. On August 14, 1997, Murphy’s husband picked up her file from Vinet’s office and signed a release that stated, in pertinent part, “I am picking up the file of Ann Murphy on this day. I will take over any legal actions that may arise in the Ann Murphy case from this day (7/12/97) forward.”

On August 22, 1997, Ciba-Geigy filed a motion for summary judgment, asserting Murphy’s claims were prescribed. On October 16, 1997, Chief Judge John V. Parker granted Ciba-Geigy’s motion and dismissed Murphy’s lawsuit.

On April 22, 1998, Murphy filed the instant lawsuit against Vinet, alleging that Vinet committed malpractice by “allowing plaintiffs suit to be dismissed.” Upon review of the facts and circumstances surrounding Murphy’s legal malpractice claim against Vinet, it was discovered that Murphy’s original suit against Ciba-Geigy was in fact timely filed.

|30n June 25, 1998, counsel for Ciba-Geigy filed a motion for consideration of previous judgment, informing Judge Parker that its previously filed motion for summary judgment was ill-founded as Murphy’s lawsuit against Ciba-Geigy was timely. On July 29, 1998, Vinet filed a motion for intervention and a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b), seeking relief from judgment on Ciba-Geigy’s motion for summary judgment and reinstatement of Murphy’s original lawsuit due to the mistake of fact concerning the timeliness of Murphy’s original lawsuit.

The matter was heard on October 16, 1998. On November 4, 1998, Judge Parker denied Vinet’s motions, noting that she did not have standing to intervene. The court stated that only Murphy had standing to assert such an action. Then, the court dismissed Ciba-Geigy’s motion to reinstate the employment discrimination suit. The court stated:

In order to insure that Ms. Murphy was aware of the ensuing activity in this litigation in this court, a hearing was held on October 16, 1998, of which Ms. Murphy was personally given notice. In response, Ms. Murphy, both verbally and through a letter filed with this court, has stated that Ms. Vinet is no longer acting on her behalf- and she does not have an attorney to represent her in this case. Ms. Murphy did not appear at the October 16 hearing.

On February 9, 2001, Vinet filed a motion for summary judgment in the suit for legal malpractice, asserting that due to Murphy’s intentional failure to participate in proceedings in federal court she was estopped from asserting her right to pursue the legal malpractice action.

The trial judge granted the motion for summary judgment. In his oral reasons, the trial judge stated:

I find it’s an absolute estoppel case here....
... so she wants to sue Ms. Vinet because she didn’t get her suit filed, when she couldn’t bring the action. She has a chance to get it resurrected and maybe it will, maybe it won’t. But, she says, I don’t Reare about bringing my suit anymore now, I want to sue her for malpractice. Not for not being — not for the discrimination claim, I don’t care about that anymore, but now for the malpractice. And, I think that’s an absolute estoppel there. I think she owes a duty to herself to make that appearance. Even without an attorney, she was given personal notice to be there. You come. You come. She did not come.

Murphy appeals.

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” LSA-C.C.P. art. 966(B). On appeal, summary judgments are reviewed de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Sunrise Construction and Development Corporation v. Coast Waterworks, Inc., 00-0303 (La.App. 1 Cir. 6/22/01), 806 So.2d 1, writ denied, 01-2577 (La.1/11/02), 807 So.2d 235.

Equitable estoppel is defined as the effect of the voluntary conduct of a party by which he is barred from asserting rights or defenses against another party justifiably relying on such conduct and causing him to change his position to his detriment as a result of such reliance. The three elements of estoppel are: (1) a representation by action or word, (2) justifiable reliance on the representation, and (3) a change in position to one’s detriment because of the reliance. John Bailey Contractor, Inc. v. State, Dep’t of Transp. and Dev., 439 So.2d 1055 (La.1983); Wilkinson v. Wilkinson, 323 So.2d 120 (La.1975).

It is undisputed that Murphy was informed of all of the federal court proceedings from June 25, 1998 forward, either through her attorney of record in the malpractice matter or personally. Vinet’s attorney wrote several letters to Murphy’s attorney and stressed the need for Murphy to personally join in the | ¡^proceedings to have her case reinstated. Additionally, the federal court contacted Murphy.

Notwithstanding Vinet’s and the federal court’s attempts to involve Murphy in the hearing on the reconsideration of the previous judgment, Murphy declined to participate. In a letter she sent to the federal court, Murphy stated, “I have filed a legal malpractice claim against my former attorney Denise Vinet.... I do not have any attorney to represent me in the case against Ciba-Geigy which was dismissed. Ms. Vinet and Mr. Foster are not acting on my behalf.”

Murphy’s entire action for malpractice against Vinet rested on the allegation that Vinet allowed the action for employment discrimination to prescribe. Murphy’s refusal to participate in the hearing in federal court indicated she no longer had an interest in her discrimination suit. Her inaction precluded the revival of that action, an event that neither Vinet nor Ciba-Geigy could affect as they lacked standing. Clearly, the trial court did not err in concluding that, by refusing to participate in the hearing that could have resurrected her discrimination suit, Murphy waived her right to proceed with her malpractice suit.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs are assessed against Ann Murphy.

AFFIRMED.


author: 1 JAMES F. MCKAY III, Judge.

text:
    Claude MARTIN v. SEWERAGE AND WATER BOARD.
    No. 2002-CA-1415.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 8, 2003.
    Rehearing Denied Jan. 31, 2003.

      Claude Martin, New Orleans, LA, In Proper Person, Plaintiff/Appellant.
    Brian A. Ferrara, General Counsel, Gerard M. Victor, Assistant Special Counsel, John D. Lambert, Jr., Special Counsel, Sewerage And Water Board of New Orleans, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE).
   1 JAMES F. MCKAY III, Judge.

The plaintiff, Claude Martin, appeals a judgment rendered by the Civil Service Commission for the City of New Orleans in favor of the Sewerage and Water Board of New Orleans (the Board). We affirm.

FACTS AND PROCEDURAL HISTORY

The Board employed Claude Martin as a pumping plant operator. On November 11, 19*98, Mr. Martin suffered an injury on the job. Mr. Martin has been on worker’s compensation since the accident because his treating physician has not released him to return to his previous position.

On June 12, 2000, a pre-disciplinary hearing was held where the Board asserted that all attempts to accommodate Mr. Martin to be able to perform his job had been unsuccessful. Therefore, the Board requested Mr. Martin’s termination under Civil Service Rule IX. On December 12, 2000, a pre-termination hearing was held to advise Mr. Martin as to the reason why he was being recommended for 12dismissal. Mr. Martin did not appear at the pre-termination hearing. On January 3, 2001, a letter was mailed to Mr. Martin advising him that effective January 12, 2001, he was being dismissed from the service of the Board because he was unable or unwilling to perform his duties as a pumping plant operator. Mr. Martin appealed this disciplinary action to the Civil Service Commission. A hearing was held on March 29, 2001; the Civil Service Commission found that Mr. Martin would never be able to return to his former position due to injuries he suffered. It is from this judgment that Mr. Martin appeals.

DISCUSSION

The issue before this Court is whether the Civil Service Commission’s decision in favor of the Board and adverse to Mr. Martin was contrary to the law and evidence.

The standard of appellate review of the Commission’s decision is set out in Bannister v. Department of Streets, 95-0404 (La.1/16/96), 666 So.2d 641. First, the Commission’s factual determinations are reviewed under the clearly erroneous/manifest error standard of review. Id. Thus, regardless of our own view of the evidence, we may not disturb the Commission’s findings of fact so long as they are reasonable. Stobart v. DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). Second, in deciding whether the Commission’s action was based on legal cause and that the action taken was commensurate with the [^situation, we should not modify the Commission’s decision unless it is arbitrary, capricious, or characterized by abuse of discretion. Bannister, supra. “Arbitrary or capricious” means the absence of a rational basis for the action taken. Id.

In the instant case, Mr. Martin has not returned to work since his accident. The Board has made reasonable attempts to accommodate him; however, these attempts have been unsuccessful. Furthermore, at his hearing before the Civil Service Commission, Mr. Martin testified that he did not think he could go back to his position as a pumping plant operator. He also testified that he could not stand, sit, or walk for long periods of time. These limitations limited the Board’s ability to place Mr. Martin in another position. Therefore, the Board decided to terminate Mr. Martin.

Rule IX of the City Civil Service Rules states in pertinent part:

When an employee in the classified service is unable or unwilling to perform the duties of his/her position in a satisfactory manner, or has committed any act to the prejudice of the service, or has omitted to perform an act it was his/her duty to perform, or otherwise has become subject to corrective action, the appointing authority shall take action warranted by the circumstances to maintain the standard of effective service. The actions may include: termination, involuntary retirement, reduction in pay, demotion and suspension.

As stated earlier, Mr. Martin was either unable or unwilling to perform the duties of a pumping plant operator. The Board’s reasonable attempts to accommodate Mr. Martin were unsuccessful. Rule IX is clear that when an employee in the classified service is “unable or unwilling to perform the duties of his/her position in a satisfactory manner,” the employee “has become subject to corrective action” which may include “termination.” Based upon the record before |4this Court, we find nothing arbitrary or capricious about the Commission’s decision regarding the disciplinary actions taken by the Board.

DECREE

For the foregoing reasons, we affirm the judgment of the Civil Service Commission.

AFFIRMED.

      . Each commission is vested with broad and general rule making powers for the administration and regulation of the classified service, including the power to adopt rules for regulating employment, promotion, demotion. suspension, reduction in pay, removal, etc.; and generally to accomplish the objectives and purposes of the merit of civil service herein established. LA. CONST. Art. X.

      . The Commission also found that diligent attempts were made to place Mr. Martin in another position. Mr. Martin was referred to Jennifer Palmer & Company, a rehabilitation corporation. Jennifer Palmer & Company conducted a labor research to identify alternative employment for Mr. Martin. Upon completion of their company's research, a list of jobs was forwarded to Dr. Haydel, Mr. Martin's treating physician, for his assessment of these positions' physical requirements and Mr. Martin's ability to perform them.


author: SMITH, Presiding Justice,

text:
    Larry Matthew PUCKETT v. STATE of Mississippi.
    No. 2000-DR-01077-SCT.
    Supreme Court of Mississippi.
    Dec. 12, 2002.
    Mississippi Office of Capital, Post-Conviction Counsel by Terri L. Marroquin, Robert Ryan, for appellant.
    Office of the Attorney General by Marvin L. White, Jr., for appellee.
   ON MOTION FOR CLARIFICATION

SMITH, Presiding Justice,

for the Court:

¶ 1. The motion for clarification is granted. The original opinion in this case is withdrawn, and this opinion is substituted therefor.

¶ 2. Larry Matthew Puckett, convicted of capital murder and sentenced to death, has not filed his application for leave to seek post-conviction relief. This matter is before the Court en banc on the Motion to Reconsider Extension of Time, Motion to Apply Statute of Limitations Established by Miss.Code. Ann. § 99-39-5(2) to Petitioner’s PosWConviction Petition, and Motion to Stay Filing Deadline, filed on Puckett’s behalf by Robert Ryan and Terri Marroquin of the Mississippi Office of Capital Post-Conviction Counsel. The State has filed no response or objection to these motions.

¶ 3. Puckett was convicted and sentenced in 1996. On direct appeal, this Court remanded the case for’ the limited purpose of conducting a Batson hearing. Puckett v. State, 737 So.2d 322 (Miss.1999). Following remand, the conviction and sentence were affirmed. Puckett v. State, 788 So.2d 752 (Miss.2001). Puckett’s motion for rehearing was denied by this Court on June 28, 2001. This Court’s mandate issued on July 19, 2001. Puckett filed a petition for writ of certiorari on November 13, 2001, in the United States Supreme Court (U.S.Sup.Ct. No. 01-7293) but no decision has yet been rendered. Puckett is now endeavoring to present post-conviction issues.

THE STATUTE OF LIMITATIONS

¶4. To address the issues raised, the Court must consider the proper construction of the recently amended statute of limitations for filing applications for leave to seek post-conviction relief in death penalty cases, and must apply that statute to the facts of this case. Miss.Code Ann. § 99-39-5(2) (Supp.2002) was amended effective July 1, 2000,. to provide that a motion for post-conviction relief in capital cases is to be “filed within one year after conviction.” This amendment which was adopted as part of a package of legislation which created the Office of Capital Post-Conviction Counsel and established new procedures for post-conviction proceedings in cases where the petitioner is under a sentence of death. Recognizing that death eligible inmates are, under these statutes and under Jackson v. State, 732 So.2d 187 (Miss.1999), assured competent counsel, the Legislature found it appropriate to limit the time for filing such applications to one year, as opposed to three years allowed in non-death eligible cases where counsel is not provided.

¶ 5. The first question to be decided is when the statute of limitations begins to run. The phrase “filed within one year after conviction,” requires construction. The Court has previously recognized that the Legislature holds the prerogative of placing reasonable time limitations on the filing of post-conviction applications. Cole v. State, 608 So.2d 1313, 1318 (Miss.1992). “The issue here is not the power of the legislature to provide such limitations, but the interpretation of statutes and court rules within the framework of a legislative act which impacts on the exercise of constitutional rights.” Sykes v. State, 757 So.2d 997, 1000 (Miss.2000).

¶ 6. To hold that conviction, as used in this statute, means the entry of the judgment of the trial court, would not recognize the statutory and constitutional requirements that the Supreme Court review all death penalty cases. ■ In a death penalty context, a conviction is final only when the mandatory state appellate review is complete, i.e., when this Court’s mandate on appeal issues.

¶ 7. There are two decisions of this Court which touch on the subject and both offer differing perspectives. One is a majority opinion, the other a plurality. Both .of theses opinions involved calculation of the running of the three-year statute of limitations set forth prior to the statute’s amendment in 2000. In one case, this Court unanimously found that the three-year limitations period ran from the date on which this Court denied the defendant’s motion for rehearing in his direct appeal. Lockett v. State, 656 So.2d 68, 71 (Miss.1995). In Lockett this Court held that the adage of “better late than never” did not apply and that a motion for post-conviction relief was to be filed within three years after rehearing of his direct appeal was affirmed by this Court. Id at 71. Thus, Lockett is controlling caselaw of this Court.

¶ 8. In a subsequent case, Booker v. State, 699 So.2d 132 (Miss.1997), a plurality of this Court (Banks, J., with three justices concurring and one justice concurring in the result only; four justices dissenting) interpreted the former three-year statute of limitations to run from the date on which the United States. Supreme Court denied Booker’s motion for rehearing on his petition for writ of certiorari from his direct appeal of his sentence. Id. at 134. A strong dissent (Smith, J., joined by Lee, C.J., Roberts and Mills, JJ.) argued that a challenge to the conviction itself was required to have been made within three years of the entry of the underlying guilty plea.

¶ 9. The Booker and Lockett decisions are not compatible in their selection of dates from which the limitations period is to run. Booker is a plurality decision, and this Court has previously held that “normally a majority vote of all sitting judges is required to create precedent” and that a “plurality vote does not create a binding result.” Churchill v. Pearl River Basin Dev. Dist., 619 So.2d 900, 904-05 (Miss.1993)(rejecting reliance on a four-vote plurality). This has been applied in criminal cases as well. Carr v. State, 655 So.2d 824, 857 (Miss.1995) (rejecting reliance on a three-vote plurality); Conner v. State, 632 So.2d 1239, 1265 (Miss.1993) (same). Thus, we hold that Booker is not binding authority and has no precedential value as a plurality opinion.

¶ 10. Under such a construction, the time period for filing Puckett’s application for post-conviction relief expired on July 19, 2002. However, the special facts of this case require that we determine whether the statute has been tolled, and, if so, for what period.

TOLLING OF THE STATUTE

¶ 11. While the Court is not at liberty to extend or modify statutory limitations, when a party is prohibited from exercising his right to proceed by circumstances which are clearly beyond his control and rise to such a dimension as to implicate due process and fundamental fairness, the Court may and should toll the limitations for the period of the impairment. Application of this limited equitable rule requires recognition that “state post-conviction efforts, though collateral, have become part of the death penalty appeal process at the state level.” Jackson, 732 So.2d at 191. An indigent inmate under a sentence of death is entirely dependent upon state-appointed counsel to pursue his post-conviction efforts.

¶ 12. Our sister state of Tennessee has recently addressed the equitable tolling of the statute of limitations in Williams v. State, 44 S.W.3d 464 (Tenn.2001), under similar circumstances. There, Williams urged that the limitations for his post-conviction filing should be tolled due to his attorney’s abandonment of his case without informing Williams. Distinguishing a judicial extension or alteration of the legislative act from equitable tolling for due process purposes, the Court remanded for a factual determination in the trial court, saying:

We emphasize that under no circumstances are we allowing a petitioner to file an untimely application for permission to appeal with the belief that the one-year statute conviction would commence upon this Court’s dismissal of that untimely application. As the dissent aptly states, filing an untimely application for permission to appeal to this Court does not constitute ‘an appeal’ as that term is used in Tennessee Code Annotated § 40-30-202(a) and therefore does not delay commencement of the one-year post-conviction statute of limitations. Indeed, in this case, the statute of limitations began to run ... when the Court of Criminal Appeals affirmed Williams’s conviction. The sole inquiry here, however, is whether this limitation period is tolled because of due process concerns surrounding possible attorney misrepresentation.... [The statute of limitations] gives defendants one year to file their petitions, and we are simply remanding the case to the trial court for an evidentiary hearing to determine (1) whether due process tolled the statute of limitations so as to give the appellee a reasonable opportunity after the expiration of the limitations period to present his claim in a meaningful time and manner; and (2) if so, whether the appellee’s filing of the post-conviction petition [after the statutory period had run] was within the reasonable opportunity afforded by the due process tolling. To summarily terminate his claim without further inquiry would be an “abridgement of both direct and post-conviction avenues of appeal-without ever reaching the merits of the appellfee’s] ease-[and] would be patently unfair.” Crittenden v. State 978 S.W.2d 929 (Tenn.1998).
.... In conclusion, the 1995 Post-Conviction Procedure Act clearly requires that post-conviction claims be filed in a timely manner. Although we agree that Williams filed his petition beyond the statutory deadline, due process considerations may have tolled the limitations period. Hence, the statute cannot be strictly applied without further inquiry, to deny him a reasonable opportunity to seek post-conviction relief.

Williams, 44 S.W.3d at 471. See also Steele v. Kehoe, 747 So.2d 931 (Fla.1999) (affirming the district court of appeals and saying that due process entitles a defendant to belatedly file a post-conviction claim if his efforts were frustrated by his counsel’s misleading conduct).

¶ 13. Equitable tolling of the statute of limitations in post-conviction proceedings is likewise recognized in the federal system. Dunlap v. United States, 250 F.3d 1001, 1006 (6th Cir.2001). The doctrine should only be applied in rare and exceptional circumstances. Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir.1999). The doctrine may be applied when a movant files in untimely fashion due to extraordinary circumstances which are both beyond his control and unavoidable even in the exercise of due diligence. Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir.1999). A showing of excusable neglect is insufficient, and a petitioner must show that he was prevented from asserting his right to relief. Jones v. Morton, 195 F.3d 153, 159 (3d Cir.1999).

¶ 14. Puckett brings to this Court’s attention the facts that indicate without doubt that he has been prevented from filing his application through no fault or neglect on his part. On February 9, 2001, the Office of Capital Post Conviction Counsel contracted with Steve Presson of Norman, Oklahoma, to represent Puckett. Then, by order dated October 31, 2001, the Circuit Court of Forrest County declared Puckett to be indigent and further found that Steve Presson of Oklahoma should be appointed as Puckett’s post-conviction counsel, if funds were available to pay him, and that “in the event that such funds do not become available, then an attorney from the Office of Capital Post Conviction Counsel should be appointed as post-conviction counsel for Mr. Puckett effective December 4, 2001.” Funds were determined to be unavailable, and C. Jackson Williams, then director of the Office of Capital Post Conviction Counsel, was substituted as counsel for Puckett on December 7, 2001. Williams thereafter resigned as director of the Office of Capital Post Conviction Counsel on January 2, 2002. The new director, Robert Ryan, and Terri L. Marroquin filed appearance forms with the Clerk of this Court on February 22, 2002.

¶ 15. It appears that in the interim, Presson had obtained important files and documents including trial counsel’s files, police reports and discovery materials and removed them to his offices in Oklahoma. The Office of Capital Post Conviction Counsel began to attempt to recover these materials in order to proceed on Puckett’s behalf. Presson however ignored requests to turn over the files, and Ryan was ultimately forced to file a complaint with the Oklahoma Bar Association seeking their return. On June 13, 2002, this Court entered an order directing Presson to return all of Puckett’s files. Presson eventually delivered three boxes of material to the Office of Capital Post Conviction Counsel on July 8, 2002. The record before us demonstrates that during the period from late December 2001 the Office of Capital Post Conviction Counsel conscientiously tried to retrieve those documents and to obtain duplicates from other sources. Counsel for Puckett now seeks relief from this Court requesting an extension of time in which to file the application for leave to seek post-conviction relief.

¶ 16. In the present case, it cannot be said that Puckett has slept on his rights or that he seeks relief because of mere excusable neglect. Due to circumstances completely beyond his control, Puckett has been unable to timely file an application for leave to seek post-conviction relief within the one-year time frame. His former attorney’s actions have affirmatively frustrated his efforts through new counsel to pursue the post-conviction process. Pursuant to this Court’s decision in Jackson v. State, 732 So.2d 187 (Miss.1999), Puckett was clearly entitled to appointed competent and conscientious counsel to assist him with his pursuit of post-conviction relief. Although his direct appeal was affirmed on June 28, 2001, with the mandate issuing on July 19, 2001, the trial court did not hold a hearing until October 23 of that year, to determine Puckett’s indigence and desire to have counsel. The trial court’s order reflects that the Office of Capital Post Conviction Counsel lacked the funding to pay Presson to represent Puckett. Attachments to Puckett’s motions for time include copies of e-mail communication between that Office and Presson which indicate that Presson had ceased to work on the matter, failed to return vital documents, and abandoned communication with the Office. While Presson could not be expected to represent Puckett without compensation, once he entered on the task he was bound by professional obligation to do no harm. His failure to return the documents, for whatever reason, fell below professional standards and frustrated Puckett’s efforts to seek relief. To punish Puckett for these circumstances would deprive him of minimal due process and a fair opportunity to be heard.' The statute was tolled by these events, and the Court is bound to grant Puckett relief.

CONCLUSION

¶ 17. While it is impossible to determine at what point the circumstances here became so serious as to toll the statute of limitations, equitable relief is due, and the Court will grant Puckett an additional 180 days after the date of this decision in which to complete and file his application for leave to seek post-conviction relief. It should be said that the equities are based on the unique facts of this case. While other jurisdictions have applied the doctrine of equitable tolling to non-capital cases, we do not do so today; the fact that Puckett is under a sentence of death and subject to a shortened one year statute of limitations weighs heavily in this decision. Further, we emphasize that we do not base this action on mere excusable neglect or ignorance by Puckett or his counsel, but upon our recognition that the actions of former counsel were such as to rise to the deprivation of fundamental due process.

¶ 18. The Motion to Reconsider Extension of Time, the Motion to Apply Statute of Limitations and the Motion to Stay Filing Deadline are granted. Puckett shall file his application for leave to seek post-conviction relief within 180 days after the date of this decision.

¶ 19. MOTIONS GRANTED.

WALLER, COBB, DIAZ, EASLEY, CARLSON AND GRAVES, JJ., CONCUR.

McRAE, P.J., DISSENTS.

PITTMAN, C.J., NOT PARTICIPATING.

      . In his Motion to Apply the Statute of Limitations Established by Miss.Code § 99-39-5(2) to Petitioner’s Post Conviction Petition, Puckett argues that the statutory limit rather that the 180 day provision of M.R.A.P. 22 should control as the deadline for filing. Although the rule established a presumptive time table for proceedings, one which attorneys must follow in the absence of order of the Court, it does not constitute a limitation cutting off the petitioner's ultimate right to file within the one-year limitation set by statute.


author: CARLSON, J.,

text:
    Craig COREY, Individually, and as Administrator of the Estate of Inda Lewis, and on Behalf of all Wrongful Death Beneficiaries of Inda Lewis, Deceased v. Dr. Tom SKELTON.
    No. 2001-CA-00730-SCT.
    Supreme Court of Mississippi.
    Jan. 9, 2003.

      Cynthia A. Langston, Covington, LA, John D. Giddens, Jackson, attorneys for appellants.
    John Michael Coleman, Joseph L. McNamara, Ridgeland, attorneys for ap-pellee.
    BEFORE PITTMAN, C.J., WALLER AND CARLSON, JJ.
   CARLSON, J.,

for the Court.

¶ 1. In this medical malpractice case arising under the Mississippi Tort Claims Act, Miss.Code Ann. §§ 11-46-1 to -23 (Rev.2002), Craig Corey appeals the trial court’s order granting summary judgment in favor of Dr. Tom Skelton based upon his employment status at the University of Mississippi Medical Center (“UMMC”). Finding the trial court correctly held Dr. Skelton was immune from liability, we affirm the grant of summary judgment.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. Inda Lewis was admitted to UMMC on October 22, 1996, for treatment of pain related to her previously diagnosed sickle cell anemia. Lewis died the next day. Dr. Tom Skelton was the attending physician when Lewis was admitted to UMMC. An autopsy performed at the request of the family revealed elevated levels of the drugs Demerol and Meperdine Metabolite in Lewis’s blood.

¶ 3. On January 26, 1998, Corey filed a complaint against The University Hospitals and Clinics, UMMC and Dr. Skelton alleging that Lewis’s death was a direct result of the substandard care received from Dr. Skelton and UMMC employees. The complaint specifically alleged Dr. Skelton was not an employee of The University Hospitals and Clinics, or UMMC. Corey also alleged The University Hospitals and Clinics and UMMC were vicariously liable for any and all negligent acts and/or omissions of their employees who delivered negligent care to Lewis. An amended complaint was filed on October 13, 1998, adding Scott Lane, M.D., Donna K. Cassell, M.D., Stephanie Powell, M.D. and John and Jane Doe, M.D., as defendants.

¶ 4. On May 12, 2000, Dr. Skelton filed a motion for summary judgment. In support of his motion, Dr. Skelton attached his personal affidavit, the affidavit of Paul Trussell, director of human resources, his employment contract and his sworn responses to the interrogatories propounded to him by Corey. The attachments alleged Dr. Skelton was an employee of UMMC who was at all times acting in the course and scope of his employment. Corey responded to this motion on October 16, 2000. This matter came on for hearing before the Circuit Court of the First Judicial District of Hinds County, Honorable James E. Graves, Jr., presiding, in October 2000. The matter was reset for hearing in order- to allow the parties an opportunity to develop the record on the issue of the employee status of Dr. Skelton.

¶ 5..During the extended discovery period, Dr. Skelton supplemented his motion for summary judgment with his deposition testimony and an additional affidavit. Corey produced no additional evidence. A hearing was held on Dr. Skelton’s motion for summary judgment on March 6, 2001. On March 19; 2001, the trial court granted Dr, Skelton’s motion for summary judgment and certified:that judgment as final under Miss. R. Civ. P. 54(b). Judge Graves found Dr. Skelton was an employee of UMMC, rather - than an independent contractor. He also found that according to Knight v. McKee, 781 So.2d 121, 123 (Miss.2001). Dr. Skelton did not waive his immunity by purchasing liability insurance.

¶ 6. Corey raises the following three issues before this Court:

I. WHETHER THE TRIAL COURT ERRED IN FINDING THAT DR. SKELTON WAS AN EMPLOYEE OF THE UMMC AND WAS ACTING WITHIN THE COURSE AND SCOPE OF HIS EMPLOYMENT DURING THE COURSE OF HIS TREATMENT OF INDA LEWIS.

II. WHETHER THE TRIAL COURT ERRED IN FINDING THAT INDA LEWIS’S ESTATE WAS NOT ENTITLED TO COMPENSATION FOR HER WRONGFUL DEATH FROM DR. SKELTON’S MEDICAL MALPRACTICE POLICY.

III. WHETHER IT WAS UNJUST, DISCRIMINATORY AND/OR CONSTITUTIONAL TO DENY INDA LEWIS’S ESTATE COMPENSATION FROM DR. SKEL-TON’S MEDICAL MALPRACTICE INSURANCE FOR HER WRONGFUL DEATH.

DISCUSSION

¶ 7. For a summary judgment motion to be granted, there must exist no genuine issue of material fact, and the moving party must be entitled to judgment as a matter of law. Miss. R. Civ. P. 56(c). The standard of review of a trial court’s grant of a motion for summary judgment is de novo. Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 63 (Miss.1988). The burden of demonstrating that there is no genuine issue of material fact falls upon the party requesting the summary judgment. Id. at 63-64. The court must carefully review all evidentiary matters before it; admissions in pleadings, answers to interrogatories, depositions, affidavits, etc., in the light most favorable to the party against whom the motion for summary judgment is made. McFadden v. State, 542 So.2d 871, 874 (Miss.1989).

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

Miller v. Meeks, 762 So.2d 302, 304 (Miss.2000) (citing Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983)).

I. WHETHER THE TRIAL COURT ERRED IN FINDING THAT DR. SKELTON WAS AN EMPLOYEE OF THE UMMC AND WAS ACTING WITHIN THE COURSE AND SCOPE OF HIS EMPLOYMENT DURING THE COURSE OF HIS TREATMENT OF INDA LEWIS.

¶ 8. Corey argues the Miller factors clearly weigh in favor of finding that Dr. Skelton was an independent contractor. Dr. Skelton states the facts of the case sub judice are almost identical to the facts presented in Sullivan where this Court reversed a jury verdict and determined two doctors were employees of UMMC for purposes of liability under the Tort Claims Act. Sullivan v. Washington, 768 So.2d 881, 886 (Miss.2000).

¶ 9. Based on a voluminous record supplemented by Dr. Skelton and a hearing on the motion for summary judgment, the trial court determined Dr. Skelton was an employee of UMMC and thus was immune from liability. Pursuant to the five-part test enumerated in Miller, a brief analysis will be conducted as to the employment status of Dr. Skelton.

¶ 10. Both parties agree the nature of the function performed by Dr. Skelton was supervisory. Like the physician in Sullivan, Dr. Skelton was assigned to Lewis; Lewis did not choose Dr. Skelton as her physician. Dr. Skelton did not have a private-patient relationship with Lewis. Dr. Skelton was the attending physician on call the day Lewis was admitted to the hospital. His role was to supervise the overall care of Lewis and all other admitted patients and to teach and advise the residents and interns.

¶ 11. The role of the faculty physician is to supervise the progress of residents and interns, provide the necessary training and to maintain a practical and educational environment. This Court has held the state has a compelling interest in maintaining such an educational environment provided by Dr. Skelton and all its teaching physicians. Sullivan, 768 So.2d at 885.

¶ 12. The direction and control UMMC maintains over its employees is great. Each month meetings are held outlining the training programs for each department. UMMC controls all scheduling assignments and implements policies and procedures which must be followed by all employees. Both parties agree that Dr. Skelton, like the doctors in Sullivan, was assigned the patient in question and was responsible for supervising another’s treatment of that patient. As stated above, Dr. Skelton was the admitting physician assigned to the hospital on the day Lewis was admitted and was not called to the emergency room upon Lewis’s admittance. He did not come in contact with Lewis until his rounds the next morning after she had been admitted to the hospital.

¶ 13. Judgment and discretion will always play a part in a supervisory role. Regarding the fourth factor of judgment and discretion, this Court has recently held:

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

Sullivan, 768 So.2d at 885. Although Dr. Skelton admitted to exercising his personal judgment and discretion while performing his role as supervisor, this factor alone is not determinative.

¶ 14. Lewis was a Medicaid patient. Accordingly, this Court has held that doctors do not receive direct payment from Medicaid patients. Sullivan, 768 So.2d at 885. Dr. Skelton stated that Lewis, like all of his patients as required by UMMC, was billed through the central billing office of the department of internal medicine. The money then becomes intermingled with the other revenues for the department.

¶ 15. The facts of this case and the facts of Sullivan are similar. Based on the supplemented record and the above Miller analysis, we affirm the ruling of the trial court granting summary judgment to Dr. Skelton on the grounds that he is an employee of UMMC and, thus, immune from liability.

II. WHETHER THE TRIAL COURT ERRED IN FINDING THAT INDA LEWIS’S ESTATE WAS NOT ENTITLED TO COMPENSATION FOR HER WRONGFUL DEATH FROM DR. SKELTON’S MEDICAL MALPRACTICE POLICY.

¶ 16. Recently this Court held:

The fact that the two physicians have personally acquired professional liability insurance is irrelevant to the inquiry as to whether a state employee enjoys immunity under the MTCA. In a recent case, Maxwell v. Jackson County, 768 So.2d 900 (Miss.2000), we held that a county did not waive its immunity protections under the MTCA when it purchased liability insurance in excess of the limits imposed by the MTCA. We now extend this holding to apply to state employees also. Finally, the MTCA contains no provision allowing for the waiver of a state employee’s immunity because of the existence of professional liability insurance.

Knight v. McKee, 781 So.2d 121, 123 (Miss.2001) (emphasis added). Corey argues Knight is distinguishable from the case subjudice because the two physicians personally acquired the insurance in Knight while in the case sub judice the insurance was a requirement of employment. However, this Court in Knight did not make a distinction as to the purchaser of the insurance. This Court clearly stated the existence of professional liability insurance did not waive a state employee’s immunity. We find this issue to be without merit.

III. WHETHER IT WAS UNJUST, DISCRIMINATORY AND/OR CONSTITUTIONAL TO DENY INDA LEWIS’S ESTATE COMPENSATION FROM DR. SKEL-TON’S MEDICAL MALPRACTICE INSURANCE FOR HER WRONGFUL DEATH.

¶ 17. In Barnes v. Singing River Hosp. Sys., 733 So.2d 199 (Miss.1999), this Court stated as follows:

[T]he constitutionality issue is barred, because it was not raised in the trial court and because the Attorney General’s Office was not properly notified. iCWe accept without hesitation the ordinarily sound principle that this Court sits to review actions of trial courts and that we should undertake consideration of no matter which has not first been presented to and decided by the trial court. We depart from this premise only in unusual circumstances.” Educational Placement Services v. Wilson, 487 So.2d 1316, 1320 (Miss.1986). “The law has been well settled that the constitutionality of a statute will not be considered unless the point is specifically pleaded.” Smith v. Fluor Corp., 514 So.2d 1227, 1232 (Miss.1987). Furthermore, Rule 24(d) of the Mississippi Rules of Civil Procedure requires that proper notice be given to the Attorney General when the constitutionality of a statute is challenged “to afford him an opportunity to intervene and argue the question of constitutionality.” Miss. R. Civ. P. 24(d). Rule 44(a) of the Mississippi Rules of Appellate Procedure similarly requires service of any appellate brief challenging the validity of a statute “on the Attorney General, the city attorney, or other chief legal officer of the governmental body involved.” M.R.A.P. 44(a). “Except by special order of the court to which the case is assigned, in the absence of such notice neither the Supreme Court nor the Court of Appeals will decide the question until the notice and right to respond contemplated by this rule has been given to the appropriate governmental body.” M.R.A.P. 44(c). The Barneses’ failure to raise the issue of the constitutionality of § 11-46-11(3) at trial or to notify the Attorney General’s Office of their challenge of the statute results in the procedural bar on this issue.

Barnes, 733 So.2d at 202-03. Similarly, Corey has failed to comply with Miss. R. Civ. P. 24(d) or M.R.A.P. 44. Therefore, Corey’s failure to raise the issue of the constitutionality of § 11-46-7(2) before the trial court or to notify the Attorney General’s office of his challenge of the statute results in the procedural bar on this issue.

CONCLUSION

¶ 18. The trial court was correct in its finding that Dr. Skelton was an employee of UMMC and, thus, immune from all liability. Dr. Skelton did not waive that immunity by purchasing professional liability insurance above the amount allowed for in the Act. Finally, Corey’s claim that the Act is discriminatory or unconstitutional is procedurally barred. Therefore, this Court affirms the trial court’s grant of summary judgment in favor of Dr. Skelton.

¶ 19. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., WALLER AND COBB, JJ., CONCUR. EASLEY, J., CONCURS IN PART. McRAE, P.J., AND DIAZ, J., DISSENT WITHOUT SEPARATE WRITTEN OPINION. GRAVES, J., NOT PARTICIPATING.

      . In Miller, we outlined the test to determine whether state employed physicians should be granted immunity: "1. the nature of the function performed by the employee; 2. the extent of the state's interest and involvement in the function; 3. the degree of control and direction exercised by the state over the employee; 4. whether the act complained of involved the use of judgment and discretion; 5. whether the physician receives compensation, either directly or indirectly, from the patient for professional services rendered.” 762 So.2d at 310.


text:
    CITY OF JACKSON, Mississippi v. Lanier LIPSEY.
    No. 2001-CA-01271-SCT.
    Supreme Court of Mississippi.
    Jan. 9, 2003.

      Hilton Ray Miller, Oxford, Terry Wallace, Jackson, J. Anthony Williams, attorneys for appellant.
    Pieter John Teeuwissen, Dale Danks, Jr., Jackson, attorneys for appellee.

      Before PITTMAN, C.J., CARLSON and GRAVES, JJ.
   CARLSON, J.,

for the Court.

¶ 1. The City of Jackson appeals the ruling of the Circuit Court of the First Judicial District of Hinds County, which found the City and one of its police officers acted in reckless disregard in causing the automobile accident which occurred between the officer and Lanier Lipsey, thus waiving immunity under the Mississippi Torts Claim Act (MTCA), Miss.Code Ann. §§ 11-46-1 to -23 (Rev.2002). Finding the proper standard was applied in determining the acts of the City and the police officer rose to the level of reckless disregard, this Court affirms the judgment of the circuit court.

¶ 2. Lanier Lipsey (“Lipsey”) was injured on May 27, 1999, when his vehicle was struck by another vehicle operated by Jackson Police Department Officer Delma Gill Baker (“Baker”). Pursuant to Miss. Code Ann. § 11^6-1, Lipsey provided notice to the City of Jackson of his claim against Baker, individually and in his official capacity, and the City of Jackson (collectively “the City”). The City of Jackson failed to accept liability and denied Lip-sey’s claim.

¶ 3. On August 16, 2000, Lipsey filed this action against the City and Officer Baker alleging the actions of Officer Baker constituted reckless disregard and were the proximate cause of the accident. Following a bench trial, the trial court issued its Memorandum Opinion Subsequent to Bench Trial finding that Officer Baker and the City acted with reckless disregard. The trial court entered a final judgment which incorporated the memorandum opinion, that judgment being in favor of Lipsey and against the City and Officer Baker, in his official capacity, in the amount of $32,057.09. The City timely filed this appeal.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 4. At approximately 1:30 a.m. on May 27, 1999, Lipsey was returning home from his second job with Service Master. Lip-sey was traveling on McDowell Road in a westerly direction. At the same time, Officer Baker was responding to an emergency dispatch regarding an auto burglary in progress. At the time of the dispatch, Officer Baker was in his patrol car in a parking lot at the intersection of Woody Drive and Terry Road. Electing to respond to the dispatch although he was neither the primary nor secondary unit, Officer Baker proceeded east on McDowell Road.

¶ 5. At the bench trial, Officer Baker and Lipsey were the only two witnesses called to testify regarding the accident. Each witness recounted a very different version of events from the night of May 27, 1999. Officer Baker testified that as soon as he pulled out in response to the dispatch, he turned on his blue lights and siren. Officer Baker learned the subjects were seen running through the Jackson Square shopping center. In an attempt to cutoff the subjects, Officer Baker made a left turn off of McDowell Road onto Kim-brough Drive. Officer Baker testified that even with his blue lights and siren engaged, Lipsey did not see Baker nor attempt to stop; therefore, the two vehicles collided. Officer Baker stated that the speed limit for eastbound traffic on his side of the road was 40 mph and that the speed limit for westbound traffic on Lip-sey’s side of the road was 30 mph. Officer Baker testified that he determined Lipsey to have been traveling between 40 and 45 mph, and he stated he was traveling between 45 and 50 mph.

¶ 6. Officer Baker testified that after the accident, he radioed the police dispatcher to have both Sergeant Dorr and American Medical Response (“AMR”) dispatched to the accident scene. While Sergeant Dorr was investigating the accident, Officer Baker stated he smelled the odor of an intoxicant in Lipsey’s . vehicle. Officer Baker then called Officer Richardson to the scene to administer a blood-alcohol test. Officer Richardson accompanied Lipsey to Central Mississippi Medical Center where Lipsey’s blood was tested for alcohol approximately one hour after the accident. Lipsey’s blood alcohol level registered at 0.02. Officer Richardson testified Lipsey was never charged with a DUI because his blood alcohol limit was not over the legal limit of 0.10. Officer Richardson agreed that 0.02 was an almost nominal level.

¶ 7. Officer Baker admitted to being involved in six other accidents while being employed with the Jackson Police Department (“JPD”). Of those six accidents, Office Baker stated he had been charged with two of those accidents.

¶ 8. Lipsey’s testimony differed greatly from Officer Baker’s testimony. Lipsey testified he was traveling in a westerly direction on McDowell Road in the far right lane. However, Lipsey testified Officer Baker was operating his vehicle without headlights, blue lights or a siren. Lip-sey testified -he had no warning and no time to react to avoid the collision because Officer Baker turned so suddenly in front of his vehicle. Lipsey also stated he knew the speed limit on McDowell Road to be 35 mph, and he was traveling approximately 35 or 40 mph at the time of impact.

¶ 9. Lipsey testified he received head, neck and lower back injuries which caused him to miss two weeks of work. Lipsey denied having anything to drink the night of the accident, but did state his brother, who was a passenger in his car, had been drinking.

¶ 10. As stated previously, the accident was investigated by Sergeant Dorr who concluded that Officer Baker failed to yield the right-of-way to Lipsey. Sergeant Dorr noted there was no improper driving by Lipsey.

¶ 11. Although Lipsey’s spouse testified, two other witnesses were called to testify, but the trial court determined their testimony provided “little or no benefit for the resolution of the issues in this case” and their testimony was therefore not addressed in the memorandum opinion.

¶ 12. The trial judge, as the fact-finder, determined that Officer Baker was attempting to apprehend the suspects without drawing attention to his vehicle’s approach by failing to turn on his headlights, blue lights or siren. The trial judge held this conduct was in reckless disregard to other citizens lawfully traveling on McDowell Road. The trial judge also concluded the City of Jackson was on notice due to Officer Baker’s poor driving record.

¶ 13. The trial judge also determined Lipsey incurred $2,239.09 in medical expenses, $2,800.00 in property damage to Ms car and $2,018.00 in lost wages.’ The trial court also awarded Lipsey $25,000 in damages for past physical pain and suffering and mental anguish. Therefore, a judgment in the amount of $32,057.09 was entered against the City of Jackson and Officer Baker in his official capacity as an officer of the JPD.

DISCUSSION

¶ 14. This Court recognizes that the trial judge, sitting in a bench trial as the trier of fact, has the sole authority for determining the credibility of the witnesses. Rice Researchers, Inc. v. Hiter, 512 So.2d 1259, 1265 (Miss.1987); Hall v. State ex rel. Waller, 247 Miss. 896, 903, 157 So.2d 781, 784 (1963). Where there is conflicting evidence, this Court must give great deference to the trial judge’s findings. McElhaney v. City of Horn Lake, 501 So.2d 401, 403 (Miss.1987). This Court reviews errors of law, including the proper application of the Mississippi Tort Claims Act, de novo. City of Jackson v. Perry, 764 So.2d 373, 376 (Miss.2000) (citing Cooper v. Crabb, 587 So.2d 236, 239 (Miss.1991)).

I. WHETHER UNDER THE MISSISSIPPI TORT CLAIMS ACT, THE CITY OF JACKSON SHOULD BE GRANTED IMMUNITY WHEN IT RESPONDS TO AN EMERGENCY DISPATCH OF A CRIME IN PROGRESS.

II. WHETHER THE TRIAL COURT ERRED IN FINDING “RECKLESS DISREGARD” WHEN OFFICER BAKER TESTIFIED HE HAD HIS LIGHTS AND SIREN ON AND WAS RESPONDING TO AN EMERGENCY DISPATCH.

¶ 15. The City argues the trial court erred in finding Officer Baker was acting in reckless disregard to the safety of others when he was responding to an emergency dispatch. The City also argues that the care used in Officer Baker’s pursuit was reasonable and necessary, and that because Officer Baker did not act in reckless disregard, the MTCA exempts the City from all liability. Lipsey, however, argues the trial court was correct in its finding that Officer Baker’s conduct amounted to reckless disregard to all citizens lawfully traveling on McDowell Road. Lipsey also argues the trial court was correct in concluding the City was on notice due to Officer Baker’s poor driving record. Therefore, according to Lipsey, Officer Baker and the City waived any claim of governmental immunity under the MTCA.

¶ 16. Miss. Code Ann. § 11^6-9 states in pertinent part:

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

(emphasis added). This Court has defined reckless disregard:

While we agree that reckless disregard would encompass gross negligence, we hold that .reckless disregard is a higher standard than gross negligence by which to judge the conduct of officers.
“Disregard” of the safety of others is at least negligence if not gross negligence. Because “reckless” precedes “disregard,” the standard is elevated. As quoted above from Black’s Law Dictionary, “reckless,” according to the circumstances, “may mean desperately heedless, wanton or willful, or it may mean only careless, inattentive or negligence.” Id. at 1270 (emphasis added).
In the context of the statute, reckless must connote “wanton or willful,” because immunity lies for negligence. And this Court has held that “wanton” and “reckless disregard” are just a step below specific intent. See Evans v. Trader, 614 So.2d 955, 958 (Miss.1993).

Turner v. City of Ruleville, 735 So.2d 226, 229-30 (Miss.1999). “Our case law indicates ‘reckless disregard’ embraces willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act.” Id. at 230 (citing Raney v. Jennings, 248 Miss. 140, 147, 158 So.2d 715, 718 (1963)).

¶ 17. Recently this Court has found several instances where a governmental entity has waived its immunity under the MTCA by acting in reckless disregard of the safety and well-being of citizens not engaged in criminal acts. See City of Jackson v. Perry, 764 So.2d 373 (Miss.2000); Maye v. Pearl River County, 758 So.2d 391 (Miss.1999); Turner v. City of Ruleville, 735 So.2d 226 (Miss.1999). In Perry, at the time of the accident, a City of Jackson police officer was speeding without using his siren or blue lights. 764 So.2d at 375. At trial it was shown the officer was not responding to an emergency call, but was going to dinner. Id. This Court held the officer’s conduct “showed a reckless disregard of the safety and well-being of others.” Id. at 378.

¶ 18. Similarly in Maye, a Pearl River County Deputy Sheriff backed his car up an incline to the entrance of a parking lot. 758 So.2d at 392. He collided with another driver who had pulled into the parking lot. Id. Although he checked his mirrors before backing up his car, the deputy sheriff testified he could not see the road from the parking lot because his view was obstructed. Id. We held the sheriffs deputy acted with a conscious indifference to the consequences of his actions, and those actions rose above “simple negligence to the level of reckless disregard of the safety and well-being of others.” Id. at 395.

¶ 19. Finally in Turner, (which involved a Miss.R.Civ.P. 12(b)(6) dismissal) the plaintiffs complaint alleged that an officer employed by the City of Ruleville Police Department pulled over a visibly intoxicated driver for operating his vehicle in an erratic manner. 735 So.2d at 227. Even though the driver was incapable of driving his car, the officer allowed him to continue driving. Id. The driver was later involved in a collision with Turner. Id. This Court held that the complaint stated a claim by alleging that the officer acted willfully and wantonly, which are synonymous with reckless disregard, in intentionally allowing a visibly intoxicated person to continue driving. Id. at 230.

¶ 20. Lipsey argues that the facts here are similar to the facts of the three cases cited above. Officer Baker was responding to an attempted auto burglary although he was not the primary nor secondary unit. The trial judge found from disputed testimony that Officer Baker was responding to the emergency dispatch without headlights, blue lights, or his siren in the hopes of not drawing attention to his vehicle. Baker admitted to speeding prior to turning in front of Lipsey. The City also had knowledge of Baker’s six prior accidents and he was “chargeable” for at least two of those accidents. As this Court found in Perry, Maye, and Turner, Lipsey argues there is overwhelming evidence to conclude the actions of Officer Baker and the actions of the City rose to the level of reckless disregard to the safety and well-being of others.

¶ 21. However, the City argues the facts of the instant case are distinguishable as were the facts in Maldonado v. Kelly, 768 So.2d 906 (Miss.2000). In Maldonado, a deputy sheriff was approaching a very dangerous intersection. Id. at 908. Before proceeding through the intersection, the deputy sheriff came to a complete stop, looked to his right, then to his left but saw no oncoming traffic. Id. However, the deputy sheriffs view was partially blocked on his right, and a collision occurred. Id. This Court distinguished the facts of Maldonado from Perry, Maye, and Turner and determined:

The common denominator in these cases is that the conduct involved evinced not only some appreciation of the unreasonable risk involved, but also a deliberate disregard of that risk and the high probability of harm involved.... There is no indication that Maldonado acted with deliberate disregard to the consequences of attempting to cross the intersection. To the contrary, there is every indication that Maldonado was aware of the nature of the intersection and took specific steps to avoid the collision.

Id. at 910-11. This Court held the deputy sheriffs actions did not rise to the level of reckless disregard. Id. at 911.

¶ 22. The City contends that like the deputy sheriff in Maldonado, Officer Baker’s actions did not rise to the level of reckless disregard. He was responding to an emergency dispatch, thus, he was acting in the usual course and scope of an officer’s duty. The City argues it should be granted immunity under Mississippi law.

¶23. The trial court found as a fact, from disputed testimony, that Officer Baker responded to the emergency dispatch without turning on his headlights, blue lights or siren in an attempt to cut off the suspected auto thieves, and in so finding, the trial court held Officer Baker’s conduct rose to the level of reckless disregard to the safety of others. The trial judge, sitting in a bench trial as the trier of fact, has the sole authority for determining the credibility of the witnesses. See Rice Researchers, Inc. v. Hiter, 512 So.2d at 1265; Hall v. State ex rel. Waller, 247 Miss. at 903, 157 So.2d at 784.

The trial judge saw these witnesses testify. Not only did [s]he have the benefit of their words, [s]he alone among the judiciary observed their manner and demeanor. [S]he was there on the scene. [S]he smelled the smoke of battle. [S]he sensed the interpersonal dynamics between the lawyers and the witnesses and [herjself. These are indispensable. Madden v. Rhodes, 626 So.2d 608, 625 (Miss.1993)(quoting Culbreath v. Johnson, 427 So.2d 705, 708 (Miss.1983)).

Rochell v. State, 748 So.2d 103, 110 (Miss.1999).

¶24. Finding that the trial court applied the proper standard in determining the acts of Officer Baker and the City of Jackson rose to the level of reckless disregard to the safety of others, this argument is without merit.

III. WHETHER THE JUDGMENT OF THE TRIAL COURT WAS EXCESSIVE AND AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE WHEN LIPSEY IGNORED THE BLUE LIGHTS OF THE POLICE AND ONLY SUSTAINED $2,239.00 IN MEDICAL BILLS.

¶25. The findings of a circuit court judge sitting without a jury “are safe on appeal where they are supported by substantial, credible, and reasonable evidence.” City of Jackson v. Perry, 764 So.2d at 376 (citing Puckett v. Stuckey, 633 So.2d 978, 982 (Miss.1993); Sweet Home Water & Sewer Ass’n v. Lexington Estates, Ltd., 613 So.2d 864, 872 (Miss.1993); Allied Steel Corp. v. Cooper, 607 So.2d 113, 119 (Miss.1992)). In Simpson v. City of Pickens, 761 So.2d 855 (Miss.2000), this Court adopted the preponderance of evidence standard of proof to be applied in all Miss.Code Ann. § 11 — 46—9(1)(c) cases.

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

Id. at 859. Because we have affirmed the trial court’s holding that Officer Baker acted in reckless disregard to the safety of others by failing to use his headlights, blue lights or siren, we will only-address this issue as it relates to the award of damages.

¶ 26. The City argues the' amount of damages awarded to Lipsey was excessive and was not supported by the evidence. Lipsey, however, argues the trial court •correctly weighed all relevant evidence in determining the amount of damages which were to be awarded. ■ ■

" ¶ 27. Without objection from opposing counsel, the trial court admitted into evidence Lipsey’s exhibit which showed Ms medical expenses totaled $2,239.00. Lip-sey also testified he lost wages as a result of the accident from his two jobs in the amount of $2,018.00 and the damage to his car totaled $2,800.00. ■ Lipsey also testified in great detail about the pain he suffered the two weeks after the accident. He was unable to work either job. He was barely able to move and relied on his family to assist him during that two-week period. He was required to take pain medication for the injuries to his lower back.

¶ 28. The trial court determined Lip-sey’s undisputed damages, consisting of medical bills, lost wages and damage to his vehicle, amounted to $7,057.09. The trial court then determined Lipsey was entitled to $25,000 for past physical pain and suffering and mental anguish.

¶ 29. Considering the evidence the trial court evaluated in determining damages for Lipsey, the damages award is not “unreasonable in amount as to strike mankind at first blush as being beyond all measure, unreasonable in amount and outrageous.” Harvey v. Wall, 649 So.2d 184, 187 (Miss.1995)(citing Rodgers v. Pascagoula Pub. Sch. Dist., 611 So.2d 942, 945 (Miss.1992)). Therefore, this argument is without merit.

IV. WHETHER AN OFFICER’S DECISIONS WHILE DRIVING ARE DISCRETIONARY OR ' MINISTERIAL.

¶ 30. Relying on Mosby v. Moore, 716 So.2d 551 (Miss.1998), the City argues because Officer Baker was in the pursuit of criminals, his actions were discretionary and immunity should apply. However, the City completely ignores this Court’s subsequent decision in Jones v. Mississippi Department of Transportation, 744 So.2d 256, 260 (Miss.1999), where we adopted the “public policy function test” which requires discretionary acts to be in furtherance of public policy in order to be granted immunity.

In determining whether governmental conduct is discretionary the Court must answer two questions: (1) whether the activity involved an element of choice or judgment; and if so, (2) whether the choice or judgment in supervision involves social, economic or political policy alternatives. Jones v. Miss. Dep’t of Transp., 744 So.2d 256, 260 (Miss.1999). Therefore, the Jones test requires a determination of (1) whether the supervision of security officers involves an element of choice or judgment; and if so (2) whether the choice or judgment involved social, economic, or political policy-

Bridges v. Pearl River Valley Water Supply Dist, 793 So.2d 584, 588 (Miss.2001).

¶ 31. According to the first prong regarding the element of choice or judgment, Officer Baker was required by law, pursuant to Miss.Code Ann. § 63-3-517 (Rev. 1996), to warm other drivers by using his siren when he responds to an emergency call. Section 63-3-517 states:

The speed limitations set forth in this article shall not apply to authorized emergency vehicles when responding to emergency calls and the drivers thereof sound audible signal by bell, siren, or exhaust whistle. This section shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the street, nor shall it protect the driver of any such vehicle from the consequence of a reckless disregard of the safety of others. .

(emphasis added). Therefore, there was no element of choice or judgment in how Officer Baker responded to the emergency dispatch.

¶ 32. With regard to the second prong of the test concerning policy alternatives, this Court determined in Bridges that immunity is only appropriate where the governmental entity can prove the act occurred within a “policy-oriented decision making process.” 793 So.2d at 589. Officer Baker was making no such policy-oriented decision. He was only responding to an emergency dispatch. Therefore, this argument is without merit.

CONCLUSION

¶ 33. The trial court did not err in finding Officer Baker and the City of Jackson acted with reckless disregard to the safety and well-being of others, and thus, waived immunity under the Mississippi Tort Claims Act. The damage award was supported by substantial evidence and is, therefore, not excessive. The judgment of the trial court is affirmed.

¶ 34. AFFIRMED.

PITTMAN, C.J., McRAE AND SMITH, P.JJ., COBB, DIAZ, EASLEY AND GRAVES, JJ., CONCUR. WALLER, J., NOT PARTICIPATING.

      . Because the parties agreed Baker was acting within the course and scope of his employment, the trial court dismissed the individual claim against Baker.

      . Miss.Code Ann. § 63-11-23(2) was amended in 2002 to change the legal limit from 0.10 to 0.08.