author: WALLER, Presiding Justice, CARLSON, Justice,

text:
    MISSISSIPPI STATE DEPARTMENT OF HEALTH and Regency Hospital Company, LLC v. RUSH CARE, INC. d/b/a The Specialty Hospital of Meridian.
    No. 2003-CC-00427-SCT.
    Supreme Court of Mississippi.
    Sept. 2, 2004.

      Julie Ann Bowman, Jackson, Andy Low-ry, Thomas L. Kirkland, Jr., Ridgeland, Sarah E. Berry, Ocean Springs, attorneys for appellants.

      Kathryn Russell Gilchrist, Christopher A. Shapley, Jackson, J. Richard Barry, Meridian, attorneys for appellee.
   WALLER, Presiding Justice,

for the Court.

¶ 1. This matter is before the Court on appeal from a judgment of the Chancery Court of the First Judicial District of Hinds County reversing the Mississippi State Department of Health’s decision to grant a certifícate of need to Regency Hospital Company, LLC, for the establishment of a 40-bed long-term acute care hospital in Meridian. We reverse the chancellor’s judgment and render judgment reinstating the Mississippi State Department of Health’s issuance of the certificate of need.

FACTS

¶ 2. Regency filed an application for a certificate of need (“CON”) for the establishment of a 40-bed long-term acute care hospital (“LTAC”) in Meridian. Three hospitals are located in Meridian: Riley Hospital, Rush Hospital and Jeff Anderson Regional Medical Center. Rush currently operates an LTAC (The Specialty Hospital of Meridian) within its hospital building. Regency’s application proposed that 40 LTAC beds would be located on the second floor of Riley, but that the LTAC hospital would be separate and independent from Riley. At the time the CON application was filed, Riley operated 40 beds as acute care medical-surgical beds on its second floor. Regency contends that the proposal therefore would not increase the total number of licensed hospital beds in the Meridian area.

¶ 3. Miss.Code Ann. §§ 41-7-171 to -209 (Rev.2001) provides that the Mississippi State Department of Health (“MDH”) is the only agency to administer and supervise all health planning responsibilities for the State. Miss.Code Ann. § 41-7-193 (Rev.2001) requires, inter alia, that a “certificate of need shall not be granted or issued to any person for any proposal, cause or reason, unless the proposal has been reviewed for consistency with the specifications and the criteria established by the State Department of Health and substantially complies with the projection of need as reported in the state health plan in effect at the time the application for the proposal was submitted.” The goals of the State Health Plan are to provide some cost containment; to improve the health of Mississippi residents; to increase the accessibility, acceptability, continuity, and quality of health services; and to prevent unnecessary duplication of health resources. The Plan requires that an application for an LTAC facility contain at least 450 examples of clinically appropriate restorative care admissions with an average length of stay of 25 days and a projection of financial feasibility by the end of the third year of operation.

¶ 4. After the MDH approved Regency’s CON, Specialty filed suit in the Chancery Court of the First Judicial District of Hinds County, to contest the approval of the CON. After an evidentiary hearing, the chancellor reversed the MDH’s decision finding that it was arbitrary and capricious and was not supported by substantial evidence. Specifically, the chancellor found no credible evidence to support the MDH’s findings that Regency’s proposed LTAC would admit 100% of. the Meridian-area patients that it listed as LTAC-eligible and that the proposed LTAC would not adversely impact Specialty’s existing LTAC.

STANDARD OF REVIEW

¶ 5. The standard of review for an appeal of a final order of the MDH is controlled by Miss.Code Ann. § 41-7-201(2)(f) (Rev.2001), which provides in part:

The order shall not be vacated or set aside, either in whole or in part, except for errors of law, unless the court finds that the order of the State Department of Health is not supported by substantial evidence, is contrary to the manifest weight of the evidence, is in excess of the statutory authority or jurisdiction of the State Department of Health, or violates any vested constitutional rights of any party involved in the appeal....

This law constitutes nothing more than a statutory limitation upon the scope of judicial review of administrative agency decisions, which is the arbitrary and capricious standard. Delta Reg’l Med. Ctr. v. Miss. State Dep’t of Health, 759 So.2d 1174, 1176 (Miss.2000) (citing Magnolia Hosp. v. Miss. State Dep’t of Health, 559 So.2d 1042, 1044 (Miss.1990)). Decisions of administrative agencies are given great deference. Delta Reg’l, 759 So.2d at 1176 (citing Melody Manor Convalescent Ctr. v. Miss. State Dep’t of Health, 546 So.2d 972, 974 (Miss.1989)). The burden of proof rests on the challenging party to prove that the MDH erred. Delta Reg’l, 759 So.2d at 1176 (citing Melody Manor, 546 So.2d at 974).

DISCUSSION

I. WHETHER REGENCY’S CON APPLICATION WAS IN SUBSTANTIAL COMPLIANCE WITH THE NEED METHODOLOGY FOR THE ESTABLISHMENT OF AN LTAC HOSPITAL.

¶ 6. Regency contends that the chancery court erred in reversing the MDH’s approval of its CON because the application was in substantial compliance with the 2002 Mississippi State Health Plan, with the General Considerations stated in Chapter 8 of the CON Review Manual, and with current federal and state rules and regulations. Specialty argues that the CON application was not 'in substantial compliance with the Plan’s need requirement because Regency’s projected average length of stay (“ALOS”) numbers were unsupported; and not all of the patients in the diagnostically related group (“DRG”) submitted by Regency were clinically appropriate. The Plan requires that an application for an LTAC facility contain at least 450 examples of clinically appropriate restorative-care admissions with an average length of stay of 25 days.

Clinically Appropriate DRGs

¶ 7. Regency listed 241 probable admissions from Riley. To acquire this number, Regency considered patients actually hospitalized from May 1, 2000, through May 31, 2001. Regency listed 438 probable admissions from Jeff Anderson. To arrive at this number, Regency looked at data from Jeff Anderson contained in the American Hospital Guide. It then estimated a need for 59 additional LTAC beds in the Meridian area, excluding any patients which might come from Meridian’s third hospital, Rush. Located within the Rush hospital building, Specialty gives admission preference to Rush patients due to its contractual obligations with Rush.

¶ 8. Regency also points out the need in the Meridian area for additional LTAC beds is indicated by the fact that Specialty’s number of beds has increased greatly since the unit’s establishment in 1996:

¶ 9. Regency also points out that Specialty has announced its intention to expand again in the next few years. Also, Riley’s CEO has stated that Riley has had trouble getting its LTAC-eligible patients into an LTAC facility.

¶ 10. Specialty responds that its LTAC unit has never been full and that Regency erroneously assumed that all of the patients from Riley and Jeff Anderson who had LTAC-compatible DRGs would actually be admitted to an LTAC. A Specialty vice-president testified at the hearing that, even if a patient has an LTAC-compatible DRG, he or she must still meet certain criteria under federal guidelines. Regency’s own witness also confirmed this statement. Because of the federal government’s extra admission criteria, Specialty has admitted only 30% of patients with LTAC-compatible DRGs who have been referred to the LTAC by their physicians.

¶ 11. We find that the clinically-appropriate DRGs presented by Regency in the CON application were supported by substantial evidence. The Plan requires that an application for an LTAC facility contain at least 450 examples of clinically appropriate restorative care admissions. Regency listed 241 probable admissions from Riley and 438 probable admissions from Jeff Anderson. These probable admissions were based on actual hospitalizations. At the hearing, Regency’s representative testified that it had, since the filing of the CON application, acquired patient data from Jeff Anderson and that this data showed that Jeff Anderson had 833 patients with LTAC-appropriate DRGs. The chancellor therefore erred when she substituted her judgment for that of the MDH.

Average Length of Stay

¶ 12. The Plan requires that an application for an LTAC facility contain at least 450 examples of clinically appropriate restorative care admissions with an average length of stay (ALOS) of 25 days. The MDH does not provide a methodology with which applicant hospitals may calculate an ALOS.

¶ 13. Regency asserts that each' LTAC-appropriate patient on its list would have an ALOS of 29 days. It bases this conclusion on the fact that Riley LTAC-appropriate patients had an ALOS of 18.2 days and Jeff Anderson LTAC-appropriate patients had an ALOS of 17 days. Regency then assumed that these patients would have stayed in the hospital longer had the respective hospital not discharged the patients due to Medicare’s cut-off of benefits after a short period of time. It also supports this conclusion with Medicare federal regulations which state that the 97 DRGs listed by Regency had an “application yield” of 31 days. See 42 C.F.R. Parts 412, 413 & 476, Table 3.

¶ 14. We find that Regency’s calculation of average length of stay was supported by substantial evidence and that the chancellor erred when she substituted her judgment for that of the MDH.

II. WHETHER REGENCY’S PROPOSED LTAC WILL RESULT IN AN ADVERSE EFFECT ON EXISTING HEALTH SYSTEMS OR IN UNNECESSARY DUPLICATION OF HEALTH SERVICES.

¶ 15. Specialty contends that the Regency CON will adversely affect it because, if Regency’s statistics are realized as projected, Specialty will lose 30% of its. patient base and $10 million in gross revenues. It asserts that if it loses $10 million in gross revenues, Rush will have to close eight rural health clinics. However, Specialty presented no evidence to support these allegations. In fact, it admitted that no financial analysis had been undertaken.

¶ 16. Instead, Specialty’s own occupancy percentages and history of growth show that the market for LTAC in the Meridian area is growing. Beginning with only 20 beds, Specialty now has 49, and its occupancy percentage has pretty much stayed constant with the increase of beds.

¶ 17. On the other hand, other LTACs in Mississippi have been established or are in the process of being established. The fact that the trend toward the establishment and operation of LTACs is growing will have an impact on the Meridian market. Some of those who now utilize Specialty for long-term acute care might go elsewhere (Jackson or Hattiesburg).

¶ 18. We find that the chancellor should have affirmed the MDH’s findings that Regency’s LTAC hospital would not adversely affect other facilities because the MDH’s findings were supported by substantial evidence and were not arbitrary and capricious. We have upheld the MDH’s findings even where an imperfect analysis is used:

However, the Chancery Court found the Department’s method of population calculation must give way to use of an actual study of patient origins for a period of a year. In effect, that Court substituted its method of measuring the population criteria with that of the Department[ ]. While the Department’s method of population analysis may be imperfect, it hardly approaches an arbitrary or capricious action. The Chancery Court erred in substituting its judgment for [that of the Department].

Miss. State Dep’t of Health v. Southwest Miss. Reg’l Med. Ctr., 580 So.2d 1238, 1242 (Miss.1991).

CONCLUSION

¶ 19. We find that the Mississippi State Department of Health’s grant of a certificate of need to Regency Hospital Company, LLC, was supported by substantial evidence and was not arbitrary and capricious. The learned chancellor erred in concluding otherwise. We therefore reverse the chancery court’s judgment and render judgment here reinstating the MDH’s decision to grant a certificate of need to Regency.

¶ 20. REVERSED AND RENDERED.

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

CARLSON, Justice,

Dissenting.

¶ 21. Because I find that the judgment of the Chancery Court of the First Judicial District of Hinds County reversing the Mississippi Department of Health’s decision to grant a certificate of need to Regency Hospital Company, LLC, for the establishment of a 40-bed long-term acute care hospital was eminently correct, I must respectfully dissent.

¶ 22. The majority determines that Regency’s CON application was in substantial compliance with Miss.Code Ann. §§ 41-7-171 to -209 (Rev.2001 & Supp.2003) and its methodology for the establishment of a long-term acute care hospital (LTAC). I must disagree. The State Health Plan, requires that an application for an LTAC must contain at least 450 examples of appropriate admissions in diagnostically related groups (DRGs). These admissions must have an average length of stay (ALOS) of 25 days. Regency failed to provide evidence that it substantially complied with either requirement.

¶ 23. Regency contends that it would receive 241 probable admissions from Riley Hospital and 438 probable admissions from Jeff Anderson Regional Medical Center. Specialty Hospital testified that in over seven years of operating an LTAC, only 30% of patients with LTAC-compati-ble DRGs were admitted to the LTAC. The reliability of Specialty’s 30% LTAC admission rate is proven by Regency’s own exhibit regarding Riley’s Population-Based Long Term Acute Care Model which shows that nationally only 5% to 35% of patients with LTAC-appropriate diagnoses are actually admitted to an LTAC. Using this model, 35% of Regency’s probable admissions would not constitute the 450 admissions required under the plan. Even if the almost 700 LTAC-eom-patible DRGs it listed had a 50% admission rate, Regency still could not show that it would have the 450 admissions required under the Plan. Aso, Regency failed to produce a list of the 97 DRGs upon which it relied to qualify the 679 probable admissions. Because it cannot be determined from the record if the 97 DRGs considered by Regency to be LTAC-appropriate are indeed LTAC-appropriate, there is no alternative other than to hold that the evidence relied upon by Regency to establish the need of more LTAC beds in the Meridian area is unreliable.

¶ 24. Regency further asserts that each LTAC-appropriate patient on its list would have an ALOS of 29 days. Since there is no evidence in the record to support this conclusion, it is based on opinion, estimates and speculation. Unsupported statements do not constitute substantial evidence of compliance with minimum usage requirements as required for CON approval. Miss. State Dep’t of Health v. Natchez Cmty. Hosp., 743 So.2d 973, 978 (Miss.1999).

¶ 25. It must also be noted that no other city in Mississippi has more than one LTAC. In fact, the only city in the United States which has two LTACs is Akron, Ohio.

¶ 26. Therefore, I would find that Regency did not support its assertions of need based on clinically appropriate DRGs or ALOS. There was no evidence in the record that Specialty’s occupancy percentage had ever been 100%, that Specialty ever had a waiting list for patients, or that Meridian-area LTAC-appropriate patients were going anywhere but Specialty for long-term care. Because the chancellor correctly reversed the MDH’s approval of Regency’s CON application, I would affirm the judgment of the Chancery Court of the First Judicial District of Hinds County. Therefore, I respectfully dissent.

GRAVES, J, JOINS THIS OPINION.

      . LTAC hospitals provide long-term acute care for patients, as opposed to those patients who are admitted to undergo a procedure and a short-term recovery therefor. Changes in Medicare coverage discouraging lengthy hospital stays have created the need for LTAC hospitals.

      . Jeff Anderson supports Regency's application for a CON.

      . DRGs are diagnosis codes promulgated by Medicare.

      . Regency explains that the American Hospital Guide is a highly reputable compilation of hospital data which contains actual patient census data for Jeff Anderson.

      . Regency argues that there is a perception among Meridian physicians that Specialty has a "closed medical staff,” which means that it does not admit patients from physicians who are not on staff at Specialty. At the hearing, however, Specialty's representative testified that Specialty has never had a closed medical staff, and that no physician who had applied for privileges at Specialty has ever been refused. Specialty's representative also provided evidence that Specialty has had admissions from Riley and Jeff Anderson.

      . Of course, again, the 97 DRGs used by Regency have not been identified, but Medicare has listed 527 DRGs which are suitable for LTAC.

      . The chancellor found that, assuming Regency's premise that its patients would come from Riley and Jeff Anderson, and that 75% of Specialty’s patients came from Rush and 25% from Riley and Jeff Anderson, Specialty would lose that 25% from Riley and Jéff Anderson, thereby resulting in financial loss. However, the chancellor’s assumptions are impermissible under Mississippi law because she drew inferences from inferences. See Masonite Corp. v. Hill, 170 Miss. 158, 154 So. 295 (1934) (An inference may be based upon another inference, but where ultimate inference has become only a more or less strong possibility, the proof is insufficient to support a judgment).

      . The percentages dipped every time more beds were added, which is to be expected, but they bounced back to the average rate within a year or two.

      . At the hearing, Regency's representative testified that it had, since the filing of the CON application, acquired patient data from Jeff Anderson and that this data showed that Jeff Anderson had 833 patients with LTAC-appro-priate DRGs. However, even 35% of 1074 (Jeff Anderson's 833 plus Riley's 241), is 376, less than the 450 required under the Plan.

      . At the MDH hearing, an MDH officer testified that, at that time, there were four LTACs ín the state: one each in Jackson, Meridian, Gulfport and Biloxi.


source: Caselaw Access Project

author: EASLEY, Justice,

license: Public Domain

text:
    James C. BURNSIDE v. STATE of Mississippi.
    No. 2003-KA-01609-SCT.
    Supreme Court of Mississippi.
    Sept. 9, 2004.

      Edmund J. Phillips, Sr., attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before COBB, P.J., EASLEY and GRAVES, JJ.
   EASLEY, Justice,

for the Court.

STATEMENT OF THE CASE

¶ 1. James C. Burnside was convicted in the Circuit Court of Neshoba County for simple assault on Deputy Sheriff John Lilly and sentenced to serve a term of 4 1/2 years in the custody of the Mississippi Department of Corrections and fined $1,000. Burnside now appeals that conviction and sentence to this Court. Finding no reversible error, we affirm.

FACTS

¶ 2. Deputy Lilly testified that he conducted a driver’s license check on July 21, 2002, along with Deputy Halbert Johnson, Trooper Eddie Hunt and Trooper Tony Sherer. A road block was set up at Highway 498 and County Road 147 in Neshoba County in the Hope Community. Two patrol cars were positioned with their blue warning lights on at the road block.

¶ 3. As a car approached the road block, the driver slammed on the brakes, squealed the tires, backed up in the road and turned around approximately 100 yards from the road block. Deputy Lilly pursued the ear. When pursued, the driver of the car, later identified as Burnside, drove all over the road at a high rate of speed and without a tag. Deputy Lilly had his blue lights flashing and siren running. He radioed to communications to advise of his pursuit.

¶ 4. Deputy Lilly pursued the car approximately 4 or 5 miles. The car pulled into a residential driveway. Burnside jumped out of the car and started running on foot toward the back of the house. Deputy Lilly observed no one else in the car. Deputy Lilly pursued Burnside on foot into the woods. Deputy Lilly was wearing his uniform and an orange reflective vest that indicated Sheriff on it. Deputy Lilly identified himself and ordered Burnside to get on the ground. Burnside did not obey.

¶ 5. Deputy Lilly chased Burnside 150-200 yards. Burnside stopped to face Deputy Lilly. Deputy Lilly sprayed Burnside with mace. Burnside then moved toward Deputy Lilly, got Deputy Lilly on the ground, and got on top of him. Deputy Lilly testified that he was hit several times by Burnside’s fists in his head, neck and shoulder area as he fell to the ground. When Burnside got Deputy Lilly to the ground and got on top of him, he hit Deputy Lilly with the deputy’s flashlight, a rechargeable mag light. Deputy Lilly testified that he feared for his life.

¶ 6. In order to get him off, Deputy Lilly shot Burnside in his chest and in the neck area while Burnside was still on top of him. He hit Deputy Lilly at least one more time after he was shot. When he fell over, Deputy Lilly was able to get out from under him.

¶ 7. Deputy Johnson finally arrived at the scene'. Deputy Johnson testified that he ran toward the gunshots. Deputy Lilly was covered in blood when Deputy Johnson arrived.' Deputy Johnson saw a flashlight on the ground at the scene of the struggle identical to the one he had from the Sheriffs Department.

¶ 8. Deputy Lilly left the woods and met Trooper Hunt at the edge of the woods. Deputy Lilly was transported by Neshoba EMS to the hospital for cuts and scratches to his head and cheekbone. Deputy Lilly had bruises and a visible cut on his forehead. Deputy Johnson remained with Burnside until medical help arrived. Burnside was transported by medical and law enforcement personnel to the hospital.

¶ 9. At the scene of the physical altercation there were 3 police flashlights of the same make that were intermingled in the process of getting Burnside medical attention and help for Deputy Lilly. The trial court allowed introduction of the flashlight as being “exactly like one [Deputy Lilly] had that night.”

¶ 10. Burnside testified at trial. He admitted that he ran from the road block because he had no driver’s license and the car he was driving did not belong to him. Burnside denied striking Deputy Lilly or moving toward Deputy Lilly.

¶ 11. Burnside now appeals, raising two issues:

I. Whether the trial court committed reversible error in admitting the flashlight.
II. Whether defense counsel provided ineffective assistance of counsel for failing to request a jury instruction on self defense.

LEGAL ANALYSIS

I. Admission of Flashlight

¶ 12. Burnside contends that the trial court’s admission of the flashlight into evidence constituted reversible error. We do not agree.

¶ 13. During the State’s examination of Deputy Lilly the record reflects the following exchange regarding introduction of the flashlight:

Mr. Duncan: I want to show you some pictures. These are marked Exhibits 2 and 3. What is shown in those photographs?
Deputy Lilly: That’s me with cuts and scratches.
Mr. Duncan: Where did those cuts and scratches come from?
Deputy Lilly: From the altercation and in the chase with Mr. Burnside.
Mr. Duncan: I want to show you what’s marked Exhibit No. 4 there. What is shown in that photograph?
Deputy Lilly: It’s a cut on the top of my head.
Mr. Duncan: Where did it come from?
Deputy Lilly: Apparently from the flashlight.
Mr. Duncan: Your Honor, at this time we would offer these photographs and this flashlight as exhibits.
The Court: Let them be marked.
Mr. Brooks: Your Honor, we would object to Exhibit No. 1, the flashlight, for the reason that the witness has not identified that as the flashlight used but as being like the flashlight.
The Court: I am going to sustain the objection for I don’t think he has completely described this flashlight sufficiently to compare to the flashlight that was actually used.
Mr. Duncan: Can I go ahead and have the photographs marked?
The Court: Yes.
PHOTOGRAPHS REFERRED TO, BEING OFFERED INTO EVIDENCE, WERE THEN AND THERE IDENTIFIED AND MARKED AS STATE’S EXHIBIT NO. 2, STATE’S EXHIBIT NO. 3, AND STATE’S EXHIBIT NO. 4 AND MADE A PART OF THE RECORD HEREOF.
Mr. Duncan: Now, Deputy Lilly, I want to show you this flashlight marked Exhibit No. 1. I believe you had said earlier that was like the flashlight that you had.
Deputy Lilly: Correct.
Mr. Duncan: Explain that for us.
Deputy Lilly: What happened that night, there were several things happened. There was several flashlights just alike the night this happened. During all the stuff that happened, going in the woods, Mr. Burnside in the woods, and all this stuff, there was at least three of these flashlights that were just alike that were passed around. At the time we didn’t exactly know which flashlight was which.
Mr. Duncan: Who did they belong to?
Deputy Lilly: Deputy Johnson, myself, and I believe the Sheriff had one also.
Mr. Duncan: In the confusion, you kind of got the flashlights mixed up?
Deputy Lilly: That is correct
Mr. Duncan: And in the end, did you know which one was yours?
Deputy Lilly: Didn’t know which one was which.
Mr. Duncan: Nevertheless, the flashlight you have there, is it exactly like the one you had that night?
Deputy Lilly: That is correct, exactly like it.
Mr. Duncan: Your Honor, at this time, we would offer it.
The Court: Let it be marked.
Mr. Brooks: Same objection.
The Court: Overruled.
FLASHLIGHT REFERRED TO, BEING OFFERED INTO EVIDENCE, WAS THEN AND THERE IDENTIFIED AND MARKED AS STATE’S EXHIBIT NO. 1 AND MADE A PART OF THE RECORD HEREOF.

¶ 14. The State offered the flashlight as being exactly like the flashlight that Deputy Lilly had during the altercation with Burnside. Deputy Lilly testified that his flashlight and 2 other identical flashlights were mixed together and indistinguishable. According to Deputy Lilly’s testimony, the flashlight was “exactly like” his flashlight that Burnside hit him with during the altercation. The flashlight was admitted into evidence under that condition.

¶ 15. M.R.E. 901(a) states that “the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”

¶ 16. The trial court admitted the flashlight as being exactly like Deputy Lilly’s flashlight used in the altercation. The flashlight was not offered as the flashlight actually used. The jury heard Deputy Lilly’s testimony that he could not identify the flashlight as the actual flashlight used.

¶ 17. Furthermore, Burnside was convicted of the simple assault of Deputy Lilly. Clearly, Deputy Lilly’s testimony regarding the attack in the woods by Burnside resulting in Deputy Lilly receiving cuts, scratches and bruises is sufficient to support the conviction without the flashlight. Photographs of the deputy’s injuries were also admitted into evidence. Therefore, any error would be harmless error.

¶ 18. Here the admission of the flashlight was not necessary to establish the charge of simple assault on Deputy Lilly. This Court has held that errors were harmless where “the same result would have been reached had they not existed.” Kolberg v. State, 829 So.2d 29, 49 (Miss.2002) (quoting Lancaster v. State, 200 So. 721, 722 (Miss.1941)). In Kolberg, this Court further stated that “even where error has occurred, we will not reverse a conviction where the overwhelming weight of the evidence supports the guilty verdict.” Kolberg, 829 So.2d at 49 (quoting Lentz v. State, 604 So.2d 243, 249 (Miss.1992)). We find this assignment of error to be without merit.

II. Ineffective Assistance of Counsel

¶ 19. Burnside alleges that his trial counsel offered ineffective assistance of counsel by failing to request a self-defense jury instruction. We disagree as the record does not support an instruction on self-defense.

¶ 20. In Burns v. State, 813 So.2d 668, 673 (Miss.2001), this Court reviewed the standard to be followed in reviewing a claim of ineffective assistance of counsel, stating:

The standard for determining if a defendant received effective assistance of counsel is well settled. “The benchmark for judging any claim of ineffectiveness [of counsel] must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A defendant must demonstrate that his counsel’s performance was deficient and that the deficiency prejudiced the defense of the case. Id. at 687, 104 S.Ct. 2052. “Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Stringer v. State, 454 So.2d 468, 477 (Miss.1984) (citing Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. 2052). The focus of the inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. Id.

¶ 21. Here, Burnside testified in his own defense. Burnside testified that he evaded the road block because he did not have a driver’s license and was not’ driving his car. Deputy Lilly testified that he was in uniform and running his blue lights and sirens while pursuing Burnside. Burnside continued to evade Deputy Lilly. Most damning to Burnside’s position on appeal is his own testimony that he never hit or struck Deputy Lilly. Burnside also denied ever getting on top of Deputy Lilly. As Burnside denied at trial that he assaulted Deputy Lilly in any way, a jury instruction on self-defense was not supported by the record. Thus, his trial counsel’s performance was not deficient.

¶22. Based on the record and Burnside’s own testimony, he fails to demonstrate to this -Court that he was prejudiced in his defense of .the case as required under the second prong of Strickland. It is the duty of the appellant to demonstrate both error in failing to receive the instruction and the prejudice to the defense. See King v. State, 857 So.2d 702, 719 (Miss.2003). See also McGowan v. State, 706 So.2d 231, 243 (Miss.1997). This Court has held:

To determine the second prong of prejudice to the defense, the standard is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Mohr v. State, 584 So.2d 426, 430 (Miss.1991).... There is no constitutional right then to errorless counsel. Cabello v. State, 524 So.2d 313, 315 (Miss.1988).... If the post-conviction application fails on either of the Strickland prongs, the proceedings end. Neal v. State, 525 So.2d 1279, 1281 (Miss.1987).

Davis v. State, 743 So.2d 326, 334 (Miss.1999).

¶ 23. We find this assignment of error to be without merit.

CONCLUSION

¶ 24. We affirm the judgment of the Circuit Court of Neshoba County.

¶ 25. CONVICTION OF SIMPLE ASSAULT ON A LAW OFFICER, SENTENCE OF FOUR AND ONE-HALF (4-1/2) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND PAYMENT OF A FINE OF $1,000, AFFIRMED.

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


author:
GRAVES, Justice,
      CARLSON, Justice, WALLER, Presiding Justice,

text:
    Christine PEREZ and Milton Perez v. GARDEN ISLE COMMUNITY ASSOCIATION.
    No. 2001-CA-01184-SCT.
    Supreme Court of Mississippi.
    Sept. 16, 2004.

      Michael D. Haas, Jr., Bay St. Louis, attorney for appellants.
    Henry J. Cook, III, attorney for appel-lee.
   ON MOTION FOR REHEARING

GRAVES, Justice,

for the Court.

¶ 1. The motion for rehearing is denied. The original opinions are withdrawn, and these opinions are substituted therefor.

¶ 2. Christine and Milton Perez filed an application requesting a special exception to a zoning ordinance for property they owned in Hancock County. Specifically, they wanted to put a mobile home on their property in an R-1 zoned area. They bought the property in July of 1996, and it was zoned R-1 in January of 1997. A public hearing was held on November 6, 1997, on their request. The planning and zoning commission granted the request for special exception and issued a certificate of compliance authorizing the Perezes to immediately proceed with placing the mobile home on the property. Subsequently, the Perezes were notified that members of the neighboring Garden Isle Community Association (Association) requested that the board of supervisors reconsider the exception. The property in question is not in the Garden Isle subdivision.

¶ 3. The board of supervisors declined to review the matter because of an error in some of the documentation regarding the description of the property. The board remanded the matter back to the planning and zoning commission and required the Perezes to file a new application. The planning and zoning commission scheduled a second public hearing on February 5, 1998, and again approved the special exception. The Association requested that the board of supervisors review the commission’s approval. The board conducted a full hearing, allowing all parties the opportunity to be heard, and affirmed the decision of the planning and zoning commission.

¶ 4. Thereafter, the Association filed a bill of exceptions appealing the matter to the Hancock County Circuit Court. The circuit court overruled the board of supervisors and the zoning commission and reversed the special exception. Subsequently, the Perezes perfected this appeal.

DISCUSSION

Whether the acts and actions of the Hancock County Planning and Zoning Commission and the Hancock County Board of Supervisors were arbitrary and capricious in allowing a special exception for appellants to place a mobile home on property zoned R-l?

¶ 5. Generally, mobile homes are not permitted on property zoned R-l. However, there are procedures whereby such is allowed. Section 905 of the Hancock County Zoning Ordinance governs special exceptions and states in part:

905.01 On application made therefor, the Planning Commission shall have the authority to hear and determine whether special exception should be made to the provisions of this Ordinance. Recommendation for a special exception shall not be made unless and until:
905.01-01: The Planning Commission shall schedule a public hearing to be held within sixty (60) days of the application filing date. Public notice of the hearing shall be published in a newspaper of general circulation not less than fifteen (15) days before the hearing. Notice of the public hearing, stating the time, place, request and property description, shall be mailed or hand delivered to all adjacent property owners.
905.01-02: The Planning Commission determines:
905.01-02.01: that a literal interpretation of the provisions of this ordinance would deprive the applicant of rights commonly enjoyed by other residents of the district in which the property is located, and that literal interpretation of this ordinance would work an unnecessary hardship upon the applicant;
905.01-02.02: that the requested exception will be in harmony with the purpose and the intent of this ordinance and will not be injurious to the neighborhood or the general welfare; and
905.01-03: that the special circumstances are not the result of actions of the applicant; and
905.01-04: that the existence of a nonconforming use of the neighboring land, buildings, or structures in the same district or of a permitted or non-conforming use in other districts shall not constitute a reason for the required exception.

¶ 6. This Court has long held that the standard of review in zoning cases is whether the action of the board or commission was arbitrary or capricious and whether it was supported by substantial evidence. See Broadacres, Inc. v. City of Hattiesburg, 489 So.2d 501, 503 (Miss.1986). See also Carpenter v. City of Petal, 699 So.2d 928, 932 (Miss.1997); Sanderson v. City of Hattiesburg, 249 Miss. 656, 163 So.2d 739 (1964). This Court has also held that the circuit court acts as an appellate court in reviewing zoning cases and not as the trier of fact. See Board of Aldermen v. Conerly, 509 So.2d 877, 885 (Miss.1987).

Thus, zoning decisions will not be set aside unless clearly shown to be arbitrary, capricious, discriminatory, illegal or without substantial evidentiary basis. There is a presumption of validity of a governing body’s enactment or amendment of a zoning ordinance and the burden of proof is on the party asserting its invalidity. Where the point at issue is “fairly debatable,” we will not disturb the zoning authority’s action.

Carpenter, 699 So.2d at 932 (citations omitted).

¶ 7. Also, the Association had the burden of proving that the board acted in an arbitrary or capricious manner. The Perezes do not have the burden of proving that the decision was not arbitrary or capricious. See Conerly, 509 So.2d at 885. See also Barnes v. DeSoto County Bd. of Supervisors, 553 So.2d 508, 510-11 (Miss.1989). This Court addressed a similar situation in Barnes, where a landowner appealed the board of supervisors’ decision to grant a conditional use permit for a gravel plant. The circuit court upheld the decision, and this Court affirmed, holding that substantial evidence supported the board’s decision:

Whatever may be the personal opinion of the judges of an appeal court on zoning, the court cannot substitute its own judgment as to the wisdom or soundness of the municipality’s action. Moore v. Madison County Bd. of Supervisors, 227 So.2d 862 (Miss.1969). The scope of a reviewing court is limited. The order of the governing body of a municipality may not be set aside if its validity is fairly debatable, and such order may not be set aside by a reviewing court unless it is clearly shown to be arbitrary, capricious, discriminatory or is illegal or without substantial evidential basis. Sanderson v. City of Hattiesburg, 249 Miss. 656, 163 So.2d 739 (1964).
Currie, 243 So.2d 48, 51-52.
However, those cases are distinguished from the case at bar, since here we are not confronted with the rezoning question, but with a conditional use permit. Conditional use permits are adjudicative in nature while zoning ordinances are legislative acts. (Citations omitted). In the case sub judice, the burden is upon the applicants to prove by a preponderance of the evidence that they have met the elements/factors essential to obtaining the conditional use permit. If the Board’s decision is founded upon substantial evidence, then it is binding upon an appellate court, i.e., the Circuit Court and this Court. This is 'the same standard of review which applies in appeals from decisions of other administrative agencies and boards.

Id. at 510-11. This Court went on to find that the board of supervisors acted properly in Barnes despite its failure to make specific findings of fact on the six elements to be considered in the- granting of a conditional use permit as outlined in the DeSoto County Zoning Ordinance.

[W]e are of the opinion that granting the conditional use permit and imposing conditions upon the granting of that permit, is tantamount to a finding-of fact by the DeSoto County Board of Supervisors that the six -questions were answered and found in favor of the applicants.

Id. at 511.

¶ 8. The Mississippi Court of Appeals has likewise followed the long-settled standards established by this Court.

Furthermore, the party challenging the governing body bears the burden of proof showing that the decision rendered is “arbitrary, capricious, discriminatory, or beyond the legal authority of the city board, or unsupported by substantial evidence.” Under our previously stated standard of review, we are prevented from substituting our judgment in place of the board’s wisdom and soundness used in reaching their decision. In reviewing their decision, we treat the Board as untethered and free when using “their own common knowledge and familiarity” in the disputed matter, in addition to the testimony and debate provided at the hearing. However, the Board’s decision must have been made in light of a “fairly debatable” issue. We are without authority to supplant the municipality’s legislative action if the decision was made in this light.

Mayor & Bd. of Aldermen v. Hudson, 774 So.2d 448, 451 (Miss.Ct.App.2000) (citations omitted).

¶9. In the case sub judice, the zoning board specifically addressed each of the elements set out in the ordinance. The minutes of the planning commission reflect the following findings:

1. Notice of the public hearing was published in the Sea Coast Echo on February 1, 1998, as per proof of publication appended hereto. And that a copy of said Notice was also mailed to all adjacent property owners.
2. The property in question measures 100’ by 100' and is located in the SE corner of the intersection of Chapman Road and Ann Street, and lies in an R-l Zone.
3. A number of comments were received from the public, both for and against the application. In addition, Mr. & Mrs. Perez presented various photographs and maps along with a letter from Mr. Tedesco, all of which were made a part of the record of the public hearing.
4. That comments were received at the public hearing expressing concerns related to safety, inappropriateness, disturbance of the peace and quiet of the area, insufficient commercial area, and that any action should be delayed until appeals of adjacent special exception grants are decided.
5. That a literal interpretation of the provisions of the Zoning Ordinance would deprive the applicant of rights commonly enjoyed by other residents of the district in which the property is located, and that literal interpretation of the Zoning Ordinance would work an unnecessary hardship upon the applicant.
6. That the requested special exception will be in harmony with the purpose and intent of the Zoning Ordinance and will not be injurious to the neighborhood or the general welfare.
7. That the special circumstances are not the result of actions of the applicant.
8. That the existence of a non-conforming use of the neighboring land, buildings or structures in the same district or of a permitted or non-conforming use in other districts does not constitute a reason for the required special exception.

¶ 10. The circuit court did not address the arbitrary and capricious standard and never made a finding that the action of either the board or the commission was such. In fact, the circuit court questioned whether that standard was even applicable. The following exchange took place during the hearing when Michael D. Haas, counsel for the Perezes, asserted that neither the commission nor the board acted in an arbitrary or capricious manner:

The Court: Is that the standard to be applied, though, when there’s an absolute violation of the code?
Mr. Haas: I’m sorry, Judge?
The Court: Arbitrary and capricious is to be determined whether they act arbitrarily and capricious under the circumstances but not where there’s an act that is contrary to the zoning ordinances themselves, is it?
Mr. Haas: Your Honor, this is not an act that’s contrary to the zoning ordinance. The zoning ordinance has been complied with. My clients’ filed an application for a special exception. They were approved. They were given a permit, a certificate of compliance, and everything. They have done everything that they had to comply with our zoning ordinance. Our zoning ordinance envisions and provides for special exceptions to the ordinance under Section 203.65 and also under Section 905, special exceptions. So this is a situation where my clients are not violating anything. They didn’t pull it in in the dead of night and just pull it in there and do it. They applied for the process and complied with everything. And they’ve been approved by everyone up until we reached the courthouse steps with Your Honor. So they’re not in violation of anything that I’m aware of, Judge.

In addition, the Association does not even address the issue of whether the board’s action was arbitrary or capricious other than stating “However, the granting of special exception must necessarily be arbitrary and capricious if it does not follow all four of the criteria set forth in the Hancock County Zoning Ordinance: 905.01-01 through 905.1-04 conclusive.” Yet it gives no authority to support that argument.

¶ 11. The ruling of the circuit court hinges totally on non-conforming uses and conserving the value of buildings in the county. The court agreed with the Garden Isle Association that the surrounding mobile homes differ because they were put in place prior to the effective date of the zoning ordinance. While this argument may technically be correct, the circuit court improperly relied on only the portions of section 600.01 of the zoning ordinance that support its position. Section 600.01 on non-conforming uses states:

It is the intent of this Ordinance to permit these non-conformities to continue until they are removed (except as otherwise herein provided), but not to encourage their survival. Such non-con-formities are declared by this Ordinance to be incompatible with the permitted structures and uses of land and structures in districts involved. It is further the intent of this Ordinance that such non-conformities shall not be enlarged upon, expanded, or extended, except as provided for herein, nor to be used as grounds for adding other structures or uses prohibited elsewhere in the district.

(Emphasis added). The circuit court did not address the emphasized language. In fact, there are provisions in the ordinance that allow for exceptions. The Perezes properly followed the procedures outlined in these provisions. Most significantly, the planning commission specifically set out that the existence of other non-conforming uses was not a reason for the approval. Also, section 600.01 does not state that nearby non-conforming uses will be used as grounds to prevent exceptions for similar non-conforming uses.

¶ 12. Additionally, approval of the special exception does not violate any intended purpose of the zoning ordinance. Section 102 of the Ordinance sets out the following purposes:

This Ordinance has been prepared in accordance with a Comprehensive Plan and is enacted to promote the general welfare of the citizens of Hancock County. Specifically, this Ordinance is designed to:
102.01: Lessen congestion in the streets.
102.02: Secure safety from fire, panic and other dangers.
102.03: Provide adequate light and air.
102.04: Prevent overcrowding of land and mixing of land uses.
102.05: Facilitate the provision of transportation, public utilities, and community facilities.
The regulations contained herein have been made with reasonable consideration, among other things, to the character of the zoning district and it suitability for particular uses and with the intention of conserving the values of buildings and encouraging use of land throughout the county.

¶ 13. As previously stated, the circuit court placed emphasis on the last sentence regarding conserving the values of buildings and encouraging use of land throughout the county. The court pointed out that residential lots in areas without mobile homes are more valuable. However, the Association did not submit evidence proving that the Perezes’ mobile home would negatively affect the value of any property.

¶ 14. Further, the circuit court found that the Perezes were responsible for their own financial predicament because they placed the mobile home on the property at their own peril and before the exhaustion of all appeals. The record indicates that the Perezes expended in excess of $53,000 in purchasing and setting up the mobile home. However, the circuit court does not address that they received a certificate of compliance or that the board approved a measure later addressing this very problem.

¶ 15. The investigation report done by site investigator Neil Smith for the Hancock County Planning and Zoning Commission recommended that the exception be approved. Inspector Smith concluded:

This is an R-l area adjacent to Garden Isles Subdivision which contains residential homes. This immediate area on Chapman is defacto R-2 in character notwithstanding the residential neighborhood in close proximity. It should be further noted that the residences are not in view of this area. It is therefore recommended that the application be granted and at some future date consideration be given to honing the boundary of the R-l zone.

¶ 16. The Perezes also brought up the argument that the area was not properly rezoned. However, the circuit court refused to hear said argument because it was not properly before the court.

CONCLUSION

¶ 17. This Court finds that the circuit court erred in reversing the decisions of the board of supervisors and the zoning commission. The Association did not prove that the actions of the board or the commission were arbitrary or capricious. Additionally, the circúit court failed to apply the appropriate standard. In its judgment and opinion, that court said “However, this court’s review is limited to the record presented to it and that record shows that the Perezes did not meet the criteria spelled out in the zoning ordinance to allow a special exception.” The circuit court reheard the matter and sat as the trier of fact, rather than properly reviewing the action of the board as an appellate court as required by the well-settled standards set out by this Court.

¶ 18. The Perezes owned this property prior to the R-l zoning. They had the choices of asking for an exception to the ordinance, building a house that would not be worth what it would be worth elsewhere, or trying to sell the land now surrounded by mobile homes but unable to have a mobile home situated on it. They chose to ask for an exception, followed all of the appropriate procedures, some more than once, and were granted an exception. Both the planning commission and the board of supervisors followed the appropriate procedures. The Perezes were given a certificate of compliance and expended a great deal of money setting up their household. A public hearing was held, and both sides had' ample opportunity to present evidence and be heard. Both the planning commission and the board found that the Perezes met the elements required by the ordinance and should properly be granted an exception. There was never any evidence presented or finding that the actions of the commission or the board were arbitrary or capricious. Therefore, the judgment of the Hancock County Circuit Court is reversed, and the special exception issued by the planning and zoning commission and affirmed by the board of supervisors is hereby reinstated.

¶ 19. REVERSED AND RENDERED.

SMITH, C.J, EASLEY AND DICKINSON, JJ., CONCUR. COBB, P.J., CONCURS IN RESULT ONLY. CARLSON, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINED IN PART BY DICKINSON, J. WALLER, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

CARLSON, Justice,

Specially-Concurring:

¶ 20. While I join the majority opinion, I write separately to distinguish the references used in the majority’s opinion. The underlying issue is whether the Planning and Zoning Commission of Hancock County properly granted the special exception to the zoning ordinance in favor of the Perezes. Garden Isle Community Association appealed the decision to the Circuit Court of Hancock County, which reversed the Commission’s grant of the special exception. I write separately to distinguish today’s case concerning special exceptions (also sometimes referred to as conditional use permits or variances) and those cases concerning zoning or rezoning.

¶ 21. In either type of appeal, the circuit court sits as an appellate court and may only reverse the commission’s decision if that decision is arbitrary or capricious, not supported by substantial evidence or in violation of a statutory or constitutional right. Carpenter v. City of Petal, 699 So.2d 928, 932 (Miss.1997); Barnes v. DeSoto County Bd. of Supervisors, 553 So.2d 508, 510 (Miss.1989). However, as this Court stated in Barnes, special exceptions cases and rezoning cases are distinguishable. Special exceptions cases “are adjudicative in nature while zoning ordinances are legislative acts.” Id. at 510. In obtaining the special exception, the burden is on the applicant of the change to show by a preponderance of the evidence that the elements/factors outlined in the ordinance have been met. Id. at 511. Once that burden has been met at the administrative agency level, the Board’s decision is binding on an appellate court if the decision is founded upon substantial evidence. Wilkinson County Bd. of Supervisors v. Quality Farms, Inc., 767 So.2d 1007, 1010 (Miss.2000).

¶ 22. On the other hand, in the rezoning cases cited as authority by the majority, the burden is on the rezoning applicant to prove by clear and convincing evidence that there was a mistake in the original zoning or that the character of the neighborhood has sufficiently changed so as to justify the rezoning and that public need exists for the rezoning. Broadacres, Inc. v. City of Hattiesburg, 489 So.2d 501, 503 (Miss.1986). On appeal, however, the appellate court may reverse the Board’s decision only if the action is arbitrary, capricious, or not supported by substantial evidence. Id. See also Northwest Builders, Inc. v. Moore, 475 So.2d 153, 155-56 (Miss.1985).

¶ 23. In the instant case, it is clear from the record that the circuit court applied the wrong standard of review and substituted its judgment for that of the Board. As stated by the majority, the commission’s decision is supported by substantial evidence, is not arbitrary or capricious, and does not violate any statutory or constitutional right. The decision was “fairly debatable” in that it was decided by a 3-2 vote. See Barnes, 553 So.2d at 510. Having said all this, I agree with the majority that the judgment of the Circuit Court of Hancock County should be reversed and rendered in accordance with the majority’s decision.

DICKINSON, J„ JOINS THIS OPINION IN PART.

WALLER, Presiding Justice,

Dissenting:

¶ 24. Since the Hancock County Circuit Court was correct in revoking the special exception, I respectfully dissent.

¶ 25. The majority correctly quotes the standard of review to be applied by a court when reviewing zoning issues:

This court has held that “[t]he classification of property for zoning purposes is a legislative rather than a judicial matter.” Thus, zoning decisions will not be set aside unless clearly shown to be arbitrary, capricious, discriminatory, illegal or without a substantial evidentiary basis. There is a presumption of validity of a governing body’s enactment or amendment of a zoning ordinance and the burden of proof is on the party asserting its invalidity. Where the point at issue is “fairly debatable,” we will not disturb the zoning authority’s action.

In re Petition of Carpenter, 699 So.2d 928, 932 (emphasis added & citations omitted).

¶ 26. Here, the special exception granted by the planning and zoning commission and affirmed by the board of supervisors was in contravention of the Hancock County Zoning Ordinances. The property on which the Perezes placed their mobile home was zoned R-l, which prohibits the new placement of mobile homes. See Hancock County Zoning Ordinance § 404 to 411. In fact, Section 404.02, pertaining to permitted uses, makes specific reference to mobile homes, stating “however, a mobile home is allowed only in existing mobile home subdivisions.” (emphasis added). This comports with the ordinances allowing non-conforming structures. Ordinance §§ 600.01, 603.

¶ 27. Section 600.01 addresses the allowance of non-conforming structures and states:

It is the intent of this Ordinance to permit these non-conformities to continue until they are removed (except as otherwise herein provided), but not to encourage their survival. Such non-conformities are declared by this Ordinance to be incompatible with the permitted structures and uses of land and structures in districts involved. It is further the intent of this Ordinance that such non-conformities shall.not be enlarged upon, expanded, or extended, except as provided for herein, nor to be used as grounds for adding other structures or uses prohibited elsewhere in the district.

(emphasis added). This Ordinance is incompatible. with the entry in the minutes of the planning and zoning commission which stated “[t]hat the requested special exception will be in harmony with the purpose and intent of the Zoning Ordinance and will not be injurious to the neighborhood or the general welfare.” While the commission’s minutes ostensibly tracked the ordinance on special exceptions, Section 905, its conclusion to allow the special exception was not in accord with the Hancock County Zoning Ordinances since a mobile home, a non-conforming structure, is not allowed on property zoned R-l. The Hancock County Circuit Court should b.e affirmed.


author: WALLER, Presiding Justice,

text:
    James Arthur HIRES v. STATE of Mississippi.
    No. 2002-CT-00059-SCT.
    Supreme Court of Mississippi.
    Sept. 16, 2004.

      Ronald Reid Welch, Jackson, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
   ON MOTION FOR REHEARING

WALLER, Presiding Justice,

for the Court.

¶ 1. The motion for rehearing is denied. The original opinion is withdrawn and this opinion is substituted therefor.

¶ 2. In 1978 James Arthur Hires was convicted of kidnaping and sentenced to life, but escaped prior to a hearing to determine his habitual offender status. Upon his capture in 1985, Hires was sentenced to life without possibility of parole as a habitual offender. Hires pled guilty to escape and was sentenced to an enhanced 5 years to run concurrently with the life sentence. The circuit court granted Hires’ motion to appeal in forma pau-peris, and then vacated that order upon motion of the State. Hires filed a petition for writ of certiorari with this Court attempting to appeal the circuit court’s order vacating permission allowing him to appeal IFP. We denied Hires’ petition. In 1990, Hires filed a petition for leave to proceed on an out-of-time appeal IFP, which was dismissed as procedurally barred. In 2000, Hires filed a motion for post-conviction relief which was denied by the circuit court as procedurally barred. His appeal was assigned to the Court of Appeals, which affirmed. See Hires v. State, 856 So.2d 438 (Miss.Ct.App.2003). After his motion for rehearing was denied, he filed this petition for writ of certiorari, which we granted. Hires asserts that the Court of Appeals decision is in conflict with our prior' decisions and the decisions of the United States Supreme Court and the United States Court of Appeals for the Fifth Circuit. He further asserts various violations of his constitutionally protected rights.

FACTS AND PROCEDURAL HISTORY

¶ 3. In 1978, James Arthur Hires was indicted for Mdnaping Debra Grinder at knife point in Gulfport and taking her to McComb. Attorney Bobby Joe Randall was appointed to represent Hires. A non-bifurcated trial was held, and the jury found Hires guilty of kidnaping and sentenced him to life imprisonment. A sentencing hearing was scheduled to determine Hires’ habitual offender status. However, Hires escaped prior to that hearing.

¶ 4. Hires was captured in Florida in 1985, returned to Mississippi, and Bobby Joe Randall was again appointed to represent him. After a hearing on May 8, 1985, Hires was sentenced to life imprisonment without hope of parole as a habitual offender on the kidnaping conviction. Also on this date, Hires pleaded guilty to escape and was sentenced to five years as a habitual offender to run concurrently with the life sentence. On May 15, 1985, the circuit court entered an order allowing Hires to appeal the kidnaping conviction in forma pauperis. However, it later granted the State’s motion to set aside that order on the ground that Hires had escaped after conviction and was not entitled to appeal. At a hearing on the State’s motion to set aside, the circuit court entered an order in both the kidnaping and the escape cause numbers relieving court-appointed attorney Bobby Joe Randall based on an announcement by attorney Jimmy McGuire that “he had been contacted by Defendant’s girlfriend with a promise to be hired to prosecute the appeal on behalf of the Defendant,” and holding in abeyance the previous order for IFP appeal. That same date, the circuit court entered a separate order vacating the previous order for IFP appeal.

¶ 5. In December of 1985, attorney Kelly Walker, who was apparently an associate of Jimmy McGuire, filed a petition for writ of certiorari with this Court attempting to appeal the circuit court’s order denying Hires’ appeal. We denied the petition per curiam. Over the next few years, Hires made various unsuccessful attempts to get the trial transcripts. In 1989, he filed a motion to reconsider the order denying appeal or in the alternative, to reinstate the appeal, which was denied by the trial court. ‘ In 1990, Hires filed in this Court a pro se Petition for Leave to Proceed on Out-of-Time Appeal in Forma Pauperis, which was dismissed as procedurally barred. Also in 1990, the United States District Court granted Hires’ motion to compel with regard to the trial transcript and then later entered a report that the transcript had been destroyed.

DISCUSSION

I. THE FUGITIVE DISMISSAL RULE.

¶ 6. It is well settled that an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his appeal. Ortega-Rodriguez v. United States, 507 U.S. 234, 239, 113 S.Ct. 1199, 1203, 122 L.Ed.2d 581 (1993). See also Derrick v. State, 406 So.2d 48 (Miss.1981). This principle is called the “fugitive dismissal” or “fugitive disentitlement” rule. The rationale behind the rule is that “dismissal by an appellate court after a defendant has fled its jurisdiction serves an important deterrent function and advances an interest in efficient, dignified appellate practice.” 507 U.S. at 242, 113 S.Ct. at 1204-05 (citing Estelle v. Dorrough, 420 U.S. 534, 537, 95 S.Ct. 1173, 1175, 43 L.Ed.2d 377 (1975)). The rule has also been applied to post-conviction proceedings. United States v. Bravo, 10 F.3d 79, 83 (2d Cir.1993).

¶ 7. However, because Hires escaped prior to the habitual offender hearing and was recaptured before appeal, he “flouted the authority” of the circuit court, not this Court. Ortega-Rodriguez, 507 U.S. at 246, 113 S.Ct. at 1206. Therefore, the above two rationales for the fugitive dismissal rule do not apply where a defendant such as Hires escapes prior to the filing of an appeal. As the Supreme Court reasoned in Ortega-Rodriguez, an appropriate punishment for an escape while the case is pending before a trial court would be sentencing the defendant for the crime of escape, not dismissal of a subsequent appeal. Id. at 247, 113 S.Ct. at 1207.

¶ 8. However, where the escape is a “long escape, even if ended before sentencing and appeal,” the defendant’s actions “may so delay the onset of appellate proceedings that the [prosecution] would be prejudiced in locating witnesses and presenting evidence at retrial after a successful appeal.” Id. at 249, 113 S.Ct. at 1208. Because this case involves basic rights, we look to federal courts for further guidance. The United States Court of Appeals for the Second Circuit has held that the fugitive dismissal rule may be applied in cases where the defendant has been recaptured prior to his or her appeal and where the defendant’s escape so delays the onset of appellate proceedings that the government would be prejudiced in locating witnesses if a trial were to take place after a successful appeal. United States v. Morgan, 254 F.3d 424, 427 (2d Cir.2001). Moreover, in United States v. Bravo, 10 F.3d 79, 84 (2d Cir.1993), relying on Ortegar-Rodriguez, the Second Circuit held that the fugitive dismissal rule precluded the defendant, who had been a fugitive for 15 years, from asserting on appeal any claims that could otherwise have resulted in a new trial. The court reasoned that the defendant’s 15-year absence severely undermined the government’s ability to assemble witnesses and evidence for any retrial that might result from granting his motions. Finally, the United States Court of Appeals for the Fifth Circuit has held that an appellate court has authority to dismiss an appeal “at least as to trial proceedings completed before the appellant became a fugitive.” United States v. DeValle, 894 F.2d 133, 136 (5th Cir.1990). The court also held that an appellate court has the authority to dismiss a fugitive’s appeal even when the escape took place before a notice of appeal had been filed, or, for that matter, before a sentencing hearing. Id.

¶ 9. Following these precedents, we find that Hires’ escape and absence for seven years before recapture so delayed the onset of appellate proceedings pertaining to the kidnapping conviction and sentencing that the State, as a matter of law, would be prejudiced in locating witnesses and presenting evidence at a possible retrial.

II. THE ESCAPE GUILTY PLEA AND ENHANCED SENTENCE AS A HABITUAL OFFENDER.

¶ 10. We find that Hires’ claims pertaining to the entry of the guilty plea on the charge of escape and the enhanced sentence as a habitual offender are time barred under Miss.Code Ann. § 99-39-5 (Rev.2000), which mandates that petitions for post-conviction collateral relief must be filed within three years of 'the date the order of conviction is entered. The record shows that the order on Hires’ guilty plea and enhanced sentence was entered on May 8, 1985. The PCR petition was not filed until December 20, 2000. While it is true that Hires filed a petition for writ of certiorari with this Court in January of 1986, Hires was attempting to appeal his conviction for kidnaping, not his conviction for escape or enhanced sentence.

CONCLUSION

¶ 11. Applying the fugitive dismissal rule, we dismiss Hires’ appeal insofar as it pertains to claims arising out of the kid-naping conviction and life sentence. We affirm the denial of Hires’ claims as to the escape guilty plea and enhanced sentence as a habitual offender as time barred.

¶ 12. AFFIRMED IN PART AND APPEAL DISMISSED IN PART.

SMITH, C.J., COBB, P.J., CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. EASLEY, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN . OPINION. DIAZ AND GRAVES, JJ., NOT PARTICIPATING.

      . Bobby Joe Randall died in 2000.

      . Hires v. State, Misc. No.2019.

      . Hires v. State, 90-M-496


author: GRAVES, Justice,

text:
    Nancy Caroline Young BROOKS, Hugh H. Young and Eddie M. Young, Jr., and All Wrongful Death Beneficiaries of Dorothy Aline Young, Deceased v. Dr. James F. ROBERTS, Dr. Wells Wilson and King’s Daughters Hospital.
    No. 2002-CA-01610-SCT.
    Supreme Court of Mississippi.
    Sept. 16, 2004.

      Joe Dale Walker, Monticello, attorney for appellants.
    Jacqueline Grace Harper, Stuart Bragg Harmon, Deanne Brodrick Saltzman, Jackson, John Michael Coleman, Saltillo, Joseph L. McNamara, Mathew D. Miller, J. Robert Ramsay, Gulfport, attorneys for appellees.
    Before SMITH, C.J., CARLSON and GRAVES, JJ.
   GRAVES, Justice,

for the Court.

¶ 1. On September 20, 2000, a complaint was filed in Lincoln County Circuit Court that alleged the mother of Nancy Caroline Young Brooks, Mrs. Dorothy Aline Young, had died as a result of medical malpractice. The complaint named Dr. James F. Roberts, Dr. Wells Wilson, and the hospital where Mrs. Young was treated, King’s Daughters Hospital, as defendants.

¶ 2. One month later Dr. Roberts answered and propounded written discovery to Brooks, in part about what expert witness was retained. This is required under Mississippi Rule of Civil Procedure 26(b)(4), which mandates certain disclosures concerning expert witnesses. No answer was received. On March 26, 2001, the parties agreed to extend discovery for 30 days. There was still no response from Brooks, and on April 26, 2001, Dr. Roberts made a Motion to Compel Discovery.

¶ 3. After a continued lack of compliance with Rule 26, the trial judge entered an “Order Compelling Discovery” on August 22, 2001, which commanded the parties to agree upon a scheduling order. Despite this order, Dr. Roberts never received any information regarding Brooks’ medical expert, and he filed a Motion for Summary Judgment on February 19, 2002, arguing that Brooks had not met the prima facie requirements for a medical malpractice action.

¶ 4. Instead of ruling on the summary judgment motion, the trial court compromised and entered an Order Compelling Discovery. The order mandated that Brooks “secure the testimony or Affidavit” of the doctor they would present as their expert, and that it “comport with Mississippi law in all respects regarding the requisite burden of proof.” If the affidavit did not meet that burden, the trial court ordered that it would “dismiss all claims against the movants with prejudice.” The order gave Brooks 45 days to offer the evidence from the date of entry, which was April 19, 2002.

¶ 5. Despite that deadline, no evidence arrived. The trial court entered an “Order and Judgment of Dismissal” on July 8, 2002, since the 45-day period had expired. On July 18, 2002, Brooks filed a “Motion to Set Aside Order and Judgment of Dismissal” which admitted that they could not secure timely expert testimony. Brooks attributed the difficulty to the burgeoning “tort reform” movement, where many medical professionals exhibited a great interest in the capping of liability and damages.

¶ 6. At the hearing on the motion, counsel for Brooks offered that' due to the tort reform issue his medical expert “wouldn’t talk” with him, and that “it’s hard to get any of [the doctors] to cooperate.” The trial court was unpersuaded. Since “[t]here was no doubt about what the law is,” a prima facie case for medical malpractice could not be shown without' expert testimony. The judge also showed frustration with this case, saying:

I have bent over backwards. I’ve done everything I know to do. I’m not going to leave this thing open. It comes to a point in time where you have got to fish or cut bait. And that time has passed, so the motion [to set aside the summary judgment] is denied.

Brooks appeals that ruling, urging two errors: first, that the trial court erred in granting summary judgment in favor of Dr. Roberts, and secondly, that the trial court erred in denying her motion to set aside the judgment of dismissal and motion for rehearing on the same.

DISCUSSION

¶ 7. We use a de novo standard of review to completely examine a lower court’s grant or denial of summary judgment. Bowie v. Montfort Jones Mem’l Hosp., 861 So.2d 1037, 1040 (Miss.2003). The proponent of a summary judgment motion bears the burden of showing that there are no genuine issues of material fact. Id. More then general allegations are needed to defeat a motion for summary judgment; there must be specific facts showing that material issues of fact exist. Id. at 1040-41. We view all evidence in the light most favorable to the nonmoving party. Id. at 1041. We will only reverse the decision of the trial court if there are indeed triable issues of fact. Id.

¶ 8. In the case at hand, Brooks argues that we should excuse the great delay in procuring an expert witnesses because the expert she attempted to retain, Dr. Kate Aseme, repeatedly delayed signing prepared affidavits, eventually rebuffing her completely. Counsel for Brooks went to the office of Dr. Aseme on “repeated occasions” with prepared affidavits and with requests to depose her. After Dr. Aseme agreed to the deposition date, she later cancelled, offering that once she had talked to her attorney she was advised she did not have to attend the deposition. After contacting Dr. Aseme’s attorney, counsel for Brooks was finally informed that the doctor had been advised by the lawyer for her malpractice insurance carrier not to sign an affidavit or give a deposition. Brooks proposes this process frustrated her ability to procure an expert witness.

¶ 9. She also admits that there was ultimately no expert witness for the case. Although a doctor had apparently been engaged to testify, the letter which outlined his opinions was “not attached and presented to the Court to meet the requirements under Mississippi Law to prove medical negligence, but was offered to show that the appellants were making efforts to obtain some other medical expert other than Dr. Aseme.”

¶ 10. Dr. Roberts urges we ignore any mitigating facts and stick to the plain language of the order and to the law. By attempting to procure an expert witness, Brooks appears to concede that this issue is out of the understanding of laypersons, and “[e]xpert testimony is required unless the matter in issue is within the common knowledge of laymen.” Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So.2d 1346, 1355 (Miss.1990). From the very moment the suit was filed it was known that an expert witness would be needed to survive summary judgment, for it is our general rule that in a medical malpractice action negligence cannot be established without medical testimony that the defendant failed to use ordinary skill and care. See Sheffield v. Goodwin, 740 So.2d 854, 858 (Miss.1999).

¶ 11. There were roughly twenty months between the time Dr. Roberts propounded discovery requesting expert witness information and the day summary judgment was entered. Brooks had not delivered discovery responses long before the so-called tort reform actions had begun in the Legislature. The entirety of 2001 elapsed before the Legislature met to discuss changes in the civil justice system in 2002. That argument strains credibility.

¶ 12. This case is reminiscent of Bowie. There the plaintiff did not designate an expert witness until over two months had passed after the deadline for designation of expert witnesses, and over a month after one or more of the motions for summary judgment were filed. Bowie, 861 So.2d at 1040. The trial judge entered summary judgment, and we affirmed. Id. at 1040, 1043. We reiterated the necessity for “litigants [to] understand that there is an obligation to timely comply with the orders of our trial courts” and “take seriously their duty to comply with court orders.” Id. at 1043.

¶ 13. Yet the failure to comply with the orders of the trial court in this case are even more exaggerated than in Bowie. There was never an expert witness designated at all. The order which Brooks violated was already a 45-day extension on designating a witness. After that deadline was passed, it took Brooks 90 days to file a motion to set aside the summary judgment, a motion which still did not designate an expert witness. This was a direct violation of the order of the trial court and shows a flagrant disregard for the orderly administration of our trial courts.

¶ 14. Judges have used various allegories to describe this situation. The trial judge in this case said that the plaintiff had to “fish or cut bait.” We have said that at some point the train leaves the station. See Bowie, 861 So.2d at 1043; Guar. Nat’l Ins. Co. v. Pittman, 501 So.2d 377, 389 (Miss.1987). No mater the words, the meaning is the same: parties must use all good faith to comply with the order of the trial court. That good faith was not present here, and Brooks failed wholly in her duty to designate a medical expert. Litigants must understand that their cases are at risk without good faith compliance with the orders of the trial courts. Accordingly, the summary judgment grant in favor of Dr. Roberts is affirmed.

¶ 15. Next, Brooks argues that the trial court erred in denying her motion to set aside the judgment of dismissal and motion for rehearing on the same. A motion for reconsideration is to be treated by the trial court as a post-trial motion under M.R.C.P. 59(e). Boyles v. Schlumberger Tech. Corp., 792 So.2d 262, 265 (Miss.2001) (quoting In re Estate of Stewart, 732 So.2d 255, 257 (Miss.1999)). Thus, a motion to set aside or reconsider an order granting summary judgment will be treated as a motion under Rule 59(e). Allen v. Mayer, 587 So.2d 255, 261 (Miss.1991). We have held that in order to succeed on a Rule 59(e) motion, the movant must show: (i) an intervening change in controlling law, (ii) availability of new evidence not previously available, or (iii) need to correct a clear error of law or to prevent manifest injustice. Bang v. Pittman, 749 So.2d 47, 52-53 (Miss.1999). This Court reviews a trial court’s denial of a Rule 59 motion under an abuse of discretion standard. Bang, 749 So.2d at 52.

¶ 16. Brooks offers nothing in her brief to demonstrate an abuse of discretion by the trial court in denying her motions to alter the judgment. Brooks shows neither (i) an intervening change in controlling law, (ii) availability of new evidence not previously available, or (iii) need to correct a clear error of law or to prevent manifest injustice. Id. at 52-53. While the trial judge erred in the computing the ten (10) day period following entry of judgment wherein a party can move to alter or amend a judgment pursuant to M.R.C.P. 59(e), the denial of the motions was not an abuse of discretion.

CONCLUSION

¶ 17. For these reasons, we affirm the circuit court’s judgment and its order denying plaintiffs’ motions to alter the judgment.

¶ 18. AFFIRMED.

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

      . While each defendant conducted their affairs separately in this case, we will use "Dr. Roberts” as-short hand for their actions.


author: THOMAS, J.,

text:
    Debbie NOAH, Individually and on Behalf of the wrongful death beneficiaries of Lindsay McElroy, Appellants, v. GENERAL MOTORS CORPORATION, Kelsey-Hayes Company and Delta Chevrolet-Olds Cadillac Company, Appellees.
    No. 2001-CA-01260-COA.
    Court of Appeals of Mississippi.
    March 9, 2004.
    Rehearing Denied June 22, 2004.
    Certiorari Denied Sept. 9, 2004.

      Rayford G. Chambers, Jackson, Charles Victor McTeer, Greenville, Tom P. Calhoun, Greenwood, John F. Hawkins, Jackson, attorneys for appellants.
    Gene D. Berry, Jackson, Paul V. Cassi-sa, Oxford, Alix Henry Sanders, Greenwood, Lee Davis Thames, Jackson, Edward M. Kronk, attorneys for appellees.
    Before SOUTHWICK, P.J., THOMAS and GRIFFIS, JJ.
   THOMAS, J.,

for the Court.

¶ 1. Debbie Noah appeals the Leflore County Circuit Court jury verdict in favor of the appellees in this wrongful death and product liability suit filed following the death of Noah’s daughter, Lindsay McEl-roy. Noah urges one error on appeal:

WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN PROHIBITING THE USE BY PLAINTIFFS AT TRIAL OF OTHER SIMILAR INCIDENT EVIDENCE AND/OR IN PROHIBITING QUESTIONING OF DEFENSE EXPERT WITNESSES REGARDING OTHER SIMILAR ACCIDENTS AND CONSUMER REPORTS FOR PURPOSES OF IMPEACHMENT, TO DEMONSTRATE KNOWLEDGE OF DEFENDANTS AND/OR FORESEEABILITY OF THE UNREASONABLY DANGEROUS CONDITION OF THE SUBJECT VEHICLE AND ITS BRAKING COMPONENTS.

¶ 2. We do And the trial court erred in its apparent reasoning for excluding the reports of prior accidents but exclusion was otherwise proper. We therefore affirm the jury verdict.

FACTS

¶ 3. On the night of May 24,1998, fifteen year-old Lindsay McElroy and her sixteen year-old companion, Jenna Pittman, née Williamson, were using Lindsay’s mother’s 1995 Chevrolet Blazer. Lindsay was driving the vehicle, which had an anti-lock brake system. After driving through the city of Greenwood for some time, the girls decided to drive to the nearby town of Schlater to attend a party given by a classmate.

¶4. On the way to Schlater, Lindsay drove through .a stop sign, hit some gravel on the side of the road and veered in the other direction. The Blazer flipped several times before coming to rest. Lindsay was ejected from the vehicle and killed. Jenna, who had suffered minor- injuries, ran for help.

¶ 5. In November 1999, Lindsay’s mother, Debbie Noah, filed suit against General Motors Corporation, Kelsey-Hayes Company, the manufacturer of the anti-lock brakes system (ABS), and Delta Chevrolet-Olds Cadillac Company, the dealer who sold the Blazer to Noah and her husband (collectively referred to as GMC). The complaint alleged defective design of the ABS, failure to properly warn of known problems with the ABS, negligence, breach of express and implied warranties, misrepresentation, fraud and concealment. The specific flaw alleged by the plaintiff was a defect which allowed debris to collect in the brake system and cause intermittent brake failure. The brake pedal would go all the way to the floor without stopping the vehicle. Noah claims it was this pedal-to-the-floor failure which caused her daughter to be unable to bring the Blazer to a stop on the night of her death.

¶ 6. Prior to trial, thé appellees filed motions in limine to exclude reports of prior incidents provided to Noah in discovery by GMC. The reports were generated by GMC in response to consumer notices of perceived brake failures-consumers called GMC customer services to complain and a report file was opened. An extensive hearing was had on the matter. Counsel for GMC argued the reports were inadmissible as hearsay but, more importantly, the prior incidents were not substantially "similar in nature because none of them contained a claim of ABS contamination as the cause of the alleged brake failure. It was also argued that similarity of conditions could , never be established because factors such as amount of brake fluid in each complainant’s vehicle, air pressure in tires, repair history, and so on, could not be established.

¶ 7. Noah argued the prior incidents as reported to GMC were substantially similar because they all involved Chevrolet Blazers with the same model of Kelsey-Hayes anti-lock brakes installed and driven in similar weather circumstances, although at a variety of speeds. The reports were excluded from evidence. The jury subsequently found in favor of GMC and Noah then perfected an appeal to this Court.

ANALYSIS

¶ 8. We are greatly hindered in our review of the issue by the trial court’s failure to fully articulate the basis in law and fact upon which it found the reports of prior accidents inadmissible. The transcript reveals a passing reference made at a bench conference by the court that it had excluded the reports because of Noah’s failure to show the prior incidents were substantially similar to events of the night Lindsay McElroy died. Given this void, we must assume the court found the arguments of GMC persuasive. Those arguments were incorrect. However, as discussed below, the outcome was accurate.

¶ 9. In Mississippi, evidence of prior accidents has long been admissible in state courts for certain reasons. S.H. Kress & Co. v. Markline, 117 Miss. 37, 47, 77 So. 858 (1918). The evidence may be admitted for the purpose of showing the existence of a dangerous condition. Illinois Cent. R.R. Co. v. Williams, 242 Miss. 586, 605, 135 So.2d 831, 839 (1961). It may also be admitted to show “plan,.notice or knowledge of a danger.... ” Hartford Ins. Group v. Massey, 216 So.2d 415, 417 (Miss.1968). Before such evidence may be admitted, even for the two permissible reasons, it must first be shown the prior incidents occurred under substantially similar conditions. Parmes v. Illinois Cent. R.R., 440 So.2d 261, 265 (Miss.1983).

¶ 10. In her complaint, Noah alleged GMC failed to warn of known problems with the brakes at the time the Blazer was purchased and at the time of her own complaints about brake problems prior to the fatal wreck. Thus, evidence of similar accidents was relevant for the purpose of showing notice of a possible defect. To that end, Noah attempted to introduce an abstract of fifty-three reports made by consumers to GMC claiming pedal-to-the-floor ABS failures.

¶ 11. GMC argued, and the court apparently accepted, that Noah could not show the prior accidents occurred under substantially similar conditions since none of the reports contained claims of contamination in the brake line causing brake failure. The reports also did not contain necessary information for making similarity comparisons, such as the amount of brake fluid in each vehicle, the state of repair of brake pads and drums, and the mileage of each vehicle. Finally, GMC argued the reports contained inadmissible hearsay.

¶ 12. The arguments by GMC with respect to substantial similarity incorporate an element never before required in this state: that the specific technical defect claimed in litigation must also be articulated in the evidence of prior accidents before they may be deemed substantially similar. Presuming this was the trial court’s basis for excluding the evidence, it was erroneous.

¶ 13. What the court must decide is whether the conditions, or circumstances, of prior incidents were substantially similar. In instances of an alleged defective appliance, that review would look to the conditions of use of the appliance. The reports of prior incidents all involved the same model of Kelsey-Hayes anti-lock brakes and same model of General Motors vehicle. The court should have reviewed the conditions surrounding the use of that integrated product-the road conditions, weather conditions, whether obstructions existed, speed of the vehicle, and so on and so forth. The reports did include all of this information, as well as an assessment of certain other characteristics of the vehicles such as the tire conditions. There was more than sufficient information provided to allow a proper comparison of the circumstances surrounding each. Had that comparison been made, without the improper consideration, no doubt the court would have found the prior incidents were substantially similar.

¶ 14. One case issued by the Fifth Circuit would appear to support the position of GMC and Kelsey-Hayes that substantial similarity must include substantially similar assignments of causation, e.g., contamination of the brake line. Johnson v. Ford Motor Co., 988 F.2d 573 (5th Cir.1993). In that case, the Fifth Circuit stated, “None of the other alleged accidents at issue appear to have involved the precise mechanical defect alleged by Johnson.” Id. at 579. This was not specifically a holding by that court as it was not an issue in that case. We do not believe the Fifth Circuit was attempting to make any statement as to the law of substantial similarity but rather simply made a broad, perhaps too broad, statement of the facts of the case before it. To the extent that it may be construed as a statement of Mississippi law, it is an incorrect one. The opinion cites no authority for any interpretation of the statement. As noted above, this State has never required prior accidents to assert the precise mechanical defect as a condition in assessing substantial similarity.

¶ 15. The question remaining is whether or not the exclusion of the reports was reversible error. Ordinarily, the standard of review on questions of admissibility of evidence is that of abuse of discretion. Thompson Mach. Commerce Co. v. Wallace, 687 So.2d 149, 152 (Miss.1997). However, when, as here, the trial court applies an erroneous legal standard to the facts, we then undertake a de novo review of the case. Par Industries, Inc. v. Target Container Co., 708 So.2d 44, 47(¶ 5)(Miss.1998).

¶ 16. The complaint alleges two points in time when Noah feels she was owed a warning, prior to the purchase of the vehicle and after she began experiencing brake problems with the Blazer. She argues in the complaint that had GMC warned her at either point, her daughter’s death could have been avoided.

¶ 17. Of the reports in the record, only two dealt with complaints of similar brake failure prior to the time the Noahs purchased the vehicle. This is an inadequate number of similar incidents to charge the defendants with notice of a potential defect. Two may have been sufficient if only a handful of vehicles had been produced and thus two accounted for a significant proportion of the whole. That, though, is not the case. The introduction of such evidence would have been more prejudicial than probative.

¶ 18. With respect to what GMC may have learned in the three-year interval between the purchase of the vehicle and Lindsay McElroy’s death, we look to statutory law. The Mississippi Product Liability Act speaks only of dangers known as of the time the product leaves the control of the manufacturer or seller. Miss.Code Ann. § ll-l-63(a) (Rev.2002). Creating a post-sale duty to warn appears to conflict with the language of this statute. The legislature has not revised the statute in question and in the absence of such revision, we will not now create a post-sale duty to warn. Even were the defendants aware of allegations of brake failure, they were under no duty to disclose them. Under the circumstances, admission of the prior incident reports occurring after the date of sale would likewise have been more prejudicial than probative.

¶ 19. The final point we shall briefly address is the question of hearsay as submitted by the appellees and argued at the hearing on the motions in limine. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. M.R.E. 801(c). The statements contained within the proffered reports were not being offered for the truth of the matter asserted therein. Plaintiff made no argument the contents of the reports were truthful. They were offered to show GMC was aware the reports had been made. While the distinction between these two purposes often blurs, the reports were nonetheless not hearsay to which the exclusionary rules would apply.

¶ 20. THE JUDGMENT OF THE LE-FLORE COUNTY CIRCUIT COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

McMILLIN, C.J., KING, P.J., BRIDGES, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. SOUTHWICK, P.J., CONCURS IN RESULT ONLY.

      . Plaintiff's brief references fifty-four reports and the abstract thereof proffered to the trial court, but only fifty-three were included in the record.

      . The appellants cite a great many cases which hold a party is required to establish prior incidents must have designated the same specific technical flaw before they may be held substantially similar to the case at hand. Those cases, however, are based upon the law of other jurisdictions and thus inapplicable.