author: |, PEATROSS, J. | FARAWAY, J.,

text:
    Princess MARTIN, et al., Plaintiffs-Appellants v. COMM-CARE CORPORATION, Defendant-Appellee d/b/a Community Care Center of Ruston.
    No. 38,577-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 30, 2004.

      See also 859 So.2d 217.
    Adams & Johnston, P.C., by Robert M. Johnston, for Appellants.
    Fleming & Associates, L.L.P., by G. Sean Jez, Christovich & Kearney, LLP, by John A. Stassi, II, James A. Holmes, Janet L. White, JJ., New Orleans, for Appellee.
    Before WILLIAMS, STEWART, CARAWAY, PEATROSS & DREW, JJ.
   |, PEATROSS, J.

Appellants, Princess Martin and her 11 adult children, seek review of a judgment sustaining an exception of res judicata. For the reasons stated herein, we reverse and remand.

FACTS

Appellants are making their second appearance before this court. In Martin v. Commr-Care Corporation, 37,600 (La.App.2d Cir.10/16/03), 859 So.2d 217, writ denied, 03-3188 (La.2/6/04), 866 So.2d 225 (“Martin One”), we affirmed a trial court judgment granting an exception of prescription in a wrongful death action. There, the Martins alleged negligence and abuse by Comm-Care nursing home resulting in the death of Isaiah Martin, husband of Princess Martin and father of the remaining appellants herein. The pertinent chronology in that case, set forth below, also serves to set the stage for the litigation now before this court:

• 01-08-1997 Isaiah Martin admitted to Comm-Care nursing home.
• 03-02-2000 Isaiah Martin left Comm-Care nursing home and was admitted to the hospital.
• 05-04-2000 Isaiah Martin died.
• 02-09-2001 Isaiah Martin’s petition was filed against Comm-Care.
• 06-27-2001 Lawsuit was served on Comm-Care.
• 07-02-2001 Motion for Extension of Time in which to plead was filed by Comm-Care.
• 08-13-2001 Comm-Care files Exception of Prematurity to the Martins’ suit, declaring that Comm-Care is enrolled in the Louisiana Compensation Fund and thus is entitled to review before a Medical Review Panel prior to the claim being heard by the district court.
• 11-20-2001 Martins file request for medical review panel with the Louisiana Division of Administration/Patient Compensation’s Fund.
• 02-14-2002 Martins’ suit is dismissed without prejudice.
• 06-24-2002 Comm-Care files Exception of Prescription to the Martins’ Request for Medical Review.
!;>• 09-09-2002 Oral arguments on prescription issue heard by district court.
• 09-19-2002 Written reasons for ruling, sustaining the Exception of Prescription was signed and filed by the trial court.
• 11-25-2002 Petition for devolutive appeal was filed.
• 11-26-2002 Order Granting devolutive appeal and notice of appeal was filed.
• 01-13-2003 Judgment sustaining Comm-Care’s Exception of prescription and dismissing the Martins’ action with prejudice was signed by the trial court.
• 01-15-2003 Judgment was filed.

We noted in Martin One that the supreme court had specifically addressed the Martins’ circumstances in Washington v. Fustok, 01-1601 (La.9/21/01), 797 So.2d 56, where the court held not only that a premature suit in district court did not interrupt prescription, but also that a request for a medical review panel filed more than one year from the date of the alleged malpractice was untimely. Furthermore, we held that Princess Martin’s filing of the wrongful death claim was not tolled either by her pleading error or by the doctrine of contra non valentem. Accordingly, we affirmed the trial court’s prescription judgment.

The same plaintiffs filed suit against the same defendants in the same district court on September 23, 2002 (“Martin Two”). The specific factual allegations of that petition, upon which plaintiffs claimed a violation of the Nursing Home Residents’ Bill of Rights Act (NHRBRA), breach of contract and breach of fiduciary duty, are as follows:

a. Mr. Martin suffered from numerous unexplained skin tears;
b. The Nursing Home failed to notify Mr. Martin’s physician and family of his changing medical condition;
c. The Nursing Home failed to provide Mr. Martin with adequate and proper medical care and treatment to prevent the development and/or worsening of decubitus ulcers.
|3d. Mr. Martin experienced a 31-pound weight loss while under the care of Defendant;
•e. Mr. Martin also experienced teasing and taunting by Defendant’s nurses’ aides;
f. Between February 29, 2000, and March 2, 2000, Mr. Martin had a fever in excess of 101 degrees which was not properly monitored or treated; and,
g. Mr. Martin’s death was caused by pneumonia with contributing factors of malnutrition and decubitus ulcers.

Of the seven factual allegations listed above, five are identical to factual allegations made in Martin One. The two additional allegations in the instant litigation are allegations (e) concerning teasing and taunting and (g) concerning causation of Mr. Martin’s death by pneumonia with contributing factors of malnutrition and decubitus ulcers. In Martin One, the plaintiffs alleged that Mr. Martin would not have suffered from the listed conditions had he been properly cared for by Comm-Care. In Martin Two, the plaintiffs allege that Mr. Martin would not have suffered from the listed conditions but for Comm-Care’s “violation of the statutory duty owed to a nursing home resident and Defendant’s breach of contract and breach of fiduciary duty owed to the Plaintiffs and Mr. Martin.”

On November 14, 2002, Comm-Care filed an exception of res judicata in Martin Two. On August 18, 2003, the trial court issued “Reasons for Ruling” which essentially constituted a judgment granting the exception of res judicata. The plaintiffs then filed a timely devolutive appeal.

In the “Reasons for Ruling,” the trial court framed the issue as whether a claim previously filed under the Medical Malpractice Act and ultimately ruled to have prescribed can subsequently be filed under the ^provisions of the NHRBRA, La. R.S. 40:2010 et seq., without triggering the exception of res judicata. The court began its analysis by quoting the following provisions of res judicata law found in La. R.S. 13:4231:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
* * *
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.

Noting that the plaintiffs were urging that Comm-Care’s alleged negligent acts could be classified as non-medical and thus outside the scope of the Medical Malpractice Act, the trial court applied the six-part test set forth in Coleman v. Deno, 01-1517 (La.1/25/02), 813 So.2d 303 . The trial court did not go through the Coleman analysis for each of the factual allegations listed in the petition, but stated that “it is clear that the elements of Princess Martin’s petition should be classified as medical malpractice.” Consequently, the court found that Martin Two was barred by res judicata as a result of the judgment in Martin One.

|fiThe trial court’s “Reasons for Ruling” did not note the fact that Martin One had been appealed; the plaintiffs later sought a writ of certiorari from the Louisiana Supreme Court on our decision in Martin One. Not until February 6, 2004, did the supreme court deny writs in Martin One. See Martin, supra.

DISCUSSION

Appellants’ single assignment of error is that the trial court erred in granting Comm-Care’s exception of res judicata and dismissing their claims with prejudice. The appellants then frame the issue as whether their claim should be dismissed even though there was not a final judgment upon which to base res judicata. This argument relies on the fact that the trial court’s decision in Martin One was not yet final and definitive at the time that the trial court ruled on the exception of res judicata in Martin Two. On the other hand, Comm-Care begins its argument by stating that the appellants base their appeal solely on the trial court’s alleged error in granting the exception on a judgment that was not yet final, but that the appellants “do not assign any error, or present any issue for appeal” regarding the trial court’s consideration of the merits of the exception. Accordingly, Comm-Care argues as an initial matter that the appellants have abandoned any assignment of error regarding the merits of the ruling and that the appeal rests solely on the assertion that the trial court’s granting of the exception was premature.

| fiComm-Care does not dispute the fact that the judgment in Martin One was not “technically” a final judgment under La. R.S. 13:4231 as a basis for res judicata. Instead, Comm-Care argues that, because Martin One became final and definitive on February 6, 2004, the grounds for the instant appeal are moot and the alleged prematurity of the res judicata ruling in Martin Two “is harmless error.”

In Avenue Plaza, L.L.C. v. Falgoust, 96-0173 (La.7/2/96), 676 So.2d 1077, the Louisiana Supreme Court noted that, under the provisions of La. R.S. 13:4231, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, and that, under the provisions of La. C.C.P. art. 2166(B), the appeal court judgment becomes final and definitive when the supreme court denies an application for certiorari. The court also noted that, under the provisions of La. C.C. art. 3506(31), a final judgment from which there can be no appeal acquires the authority of the thing adjudged and that, once a final judgment acquires the authority of the thing adjudged, no court has jurisdiction to change the judgment, regardless of the magnitude of the final judgment’s error. Accordingly, the court in Avenue Plaza held that an April 26, 1995 appellate court judgment affirming an eviction acquired the authority of the thing adjudged and became final and definitive when the supreme court denied certiorari. See also Owens v. Book, 02-90 (La.App. 3d Cir.6/5/02), 819 So.2d 484.

Considering the statutory law and the jurisprudence, we must agree with appellants that the judgment in Martin One had not acquired the |7authority of the thing adjudged at the time the trial court in Martin Two rendered its judgment on the exception of res judicata. Instead, the trial court’s judgment acquired the authority of the thing adjudged on February 6, 2004, when the Louisiana Supreme Court denied writs in Martin One. Accordingly, the trial court erred in granting the exception of res judicata in Martin Two and the judgment is hereby reversed.

In light of our finding of prematurity of the judgment, we do not reach the merits of the exception. We note, however, that the petition in Martin Two listed two additional factual allegations that were not included in the petition in Martin One, the first concerning teasing and taunting by Comm-Care nurses’ aides and the second concerning Mr. Martin’s death being the result of pneumonia with contributing factors of malnutrition and decubitus ulcers. While the latter allegation arguably falls into the category of medical malpractice that would be precluded by the final, definitive judgment in Martin One, there can be no argument that “teasing and taunting by Defendants’ nurses aides” could be a violation of the NHRBRA, but not the Medical Malpractice Act. Furthermore, the acts of teasing and taunting are intentional acts not subject to the Medical Malpractice Act, which defines medical malpractice as “any unintentional tort or any breach |sof contract based on health care or professional services rendered....” La. R.S. 40:1299.41(A). Our decision today in no way prevents Comm-Care from again raising res judicata, thereby necessitating a determination as to whether alleged violations of one or more of Mr. Martin’s 21 rights as a nursing home resident under the NHRBR, that are not medical malpractice, may proceed. See Richard v. Extended Care Centers, Inc., 02-0978 (La.1/14/03), 835 So.2d 460; Miller ex rel. Miller v. Nursing Homes Management, Inc., 38,198 (La.App.2d Cir.3/5/04), 867 So.2d 1000; Jordan v. Stonebridge, L.L.C., 03-588 (La.App. 5th Cir.11/25/03), 862 So.2d 181, writ denied, 03-3520 (La.3/19/04), 869 So.2d 851.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting Comm-Care Corporation’s Exception of Res Judicata is reversed and the matter is remanded to the trial court for further proceedings. Costs of appeal are taxed against Comm-Care Corporation.

REVERSED AND REMANDED.

| FARAWAY, J.,

concurring in part and dissenting in part.

I agree with the majority that the plaintiffs were precluded in Martin One from bringing their vaguely pled NHRBRA claim for “teasing and taunting.” Such claim clearly arose out of the same “transaction or occurrence,” as those concepts are employed in La. C.C.P. art. 425(A) and La. R.S. 13:4231, and would accordingly be res judicata but for a unique procedural impediment. While Martin One was pending before the medical malpractice panel, the defendant asserted its defense of prescription in the district court pursuant to the special procedure of the Medical Malpractice Act, La. R.S. 40:1299.47(B)(2)(a). Therefore, the plaintiffs in Martin One never had the procedural obligation of joinder of their NHRBRA claim under La. C.C.P. art. 425(A) because that case was adjudicated without plaintiffs ever having the procedural opportunity to file suit in the district court.

Additionally, I would note that the NHRBRA “teasing and taunting” claim makes no allegations of causation or the extent of the mental anguish of the victim. While we are allowing this bare claim to proceed, the measure of such claim and any damages should require proof similar to that for the tort of intentional infliction of emotional distress as set by White v. Monsanto, 585 So.2d 1205 (La.1991).

I respectfully dissent from the ultra-technical ruling remanding plaintiffs’/appellants’ additional medical malpractice claim on the basis that res judicata was premature for that claim at the trial court level. The decision avoids answering the appellants’ strained and erroneous argu-mentan support of their assignment of error that res judicata can never apply to bar that claim, and instead suggests that the trial court, on remand, may reinstate its res judicata ruling as to that claim. The majority’s rationale is that a redundant exception of res judicata should have been filed here at the appellate level after the finality of the Martin One judgment. With the subject matter of this appeal being res judicata, the peremptory exception is already before us at the urging of the appellants, who freely admit that the Martin One judgment is now final. Once and for all, we should answer and dismiss appellants’ argument for the permanent in application of res judicata to their newly alleged medical malpractice claim, instead of requiring the trial court and another panel of this court to deal with this matter in the future.

      . Six factors apply to determine whether conduct by a qualified health care provider constitutes "malpractice” for which a statutory cap on damages under Medical Malpractice Act (MMA) applies: (1) whether the particular wrong is treatment-related or caused by dereliction of professional skill; (2) whether the wrong requires expert medical evidence to determine whether appropriate standard of care was breached; (3) whether pertinent act or omission involved assessment of patient’s condition; (4) whether incident occurred in context of physician-patient relationship or was within scope of activities which a hospital is licensed to perform; (5) whether injury would have occurred if patient had not sought treatment; and (6) whether the tort alleged was intentional.

      . We also observe that the exception of res judicata is a peremptory exception that cannot be supplied by the court, but must be specially pleaded. La. C.C.P. art. 927. Nevertheless, an appellate court may consider a peremptory exception filed for the first time in that court, if the exception is pleaded prior to the submission of the case for decision and if proof of the ground of the exception appears of record. La. C.C.P. art. 2163. Thus, even though the trial court was premature in finding Martin Two to be res judicata, Comm-Care could have filed an exception of res judicata in this court prior to submission of the case to make sure that the effect of the supreme court’s denial of certiorari in Martin One was considered here. Comm-Care, however, did not file an exception in this court until after submission of the case for decision and, therefore, the exception was not timely filed and will not be considered. La. C.C.P. art. 2163; Ware v. Wilson, 283 So.2d 813 (La.App. 2d Cir.1973), writ denied, 284 So.2d 774 (La.1973); Payne v. Trichel, 397 So.2d 16 (La.App. 3d Cir.1981).

      . Since the allegation of the intentional acts of taunting and teasing does not fall within the Medical Malpractice Act, it was not required to be submitted to the medical review panel and, therefore, not required to be included in the petition for request of the same. In fact, plaintiffs were precluded from bringing in district court any additional claims, such as the taunting and teasing claim, they may have had that were not medical malpractice claims while the matter was pending before the medical review board.


source: Caselaw Access Project

author: |, CARAWAY, J. |1BROWN, C.J., h STEWART, J., h GASKINS, J.,

license: Public Domain

text:
    Huey P. DEAN, Plaintiff-Appellee v. Lurry D. CREW, et al., Defendants-Appellant.
    No. 39,408-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 8, 2004.

      English & Associates, by Larry English, Shreveport, Carlos D. Prudhomme, for Appellant.
    James M. Johnson, Minden, for Appel-lee.
    Stephen D. Hawkland, for Secretary of State.
    Before BROWN, STEWART, GASKINS, CARAWAY and MOORE, JJ.
   |, CARAWAY, J.

This dispute is the second suit arising from the effort to recall Huey Dean (“Dean”), Mayor of the Town of Homer. The first suit, brought by a group of voters who signed the recall petition, resulted in this court’s ruling in Young v. Sanders, 38,412 (La.App.2d Cir.4/7/04), 870 So.2d 1126, writ denied, 04-1137 (La.7/2/04), 877 So.2d 146 (hereinafter “Suit # 1”), affirming the trial court’s mandamus order requiring certification of the recall petition pursuant to the Election Code provision, Section 1300.3. La. R.S. 18:1300.3. Dean, who was not a party to Suit # 1, brings the present action, asserting his right to contest the certification of the recall petition and to enjoin the recall for two reasons: (1) defendant, Lurry Crew, as chairman of the recall petition, was not a qualified voter in the voting area from which the mayor was elected, in violation of La. R.S. 18:1300.5(A); and (2) both Crew, as chairman of the recall petition, and Maxine Wilson, as vice chairman of the recall petition, failed to provide Dean with copies of the names of persons seeking his recall, despite repeated requests during the recall process in 2003, defeating his rights to access public records under La. R.S. 44:35. The trial court, finding merit in both of those grounds, enjoined the recall process. The defendant, Lurry Crew, appeals.

Regardless of the specific remedies requested by Dean in this action,1 ythe trial court found that the certification process for the recall petition was tainted and subject to nullification. Therefore, we view this challenge, as asserted in the petition, to be an action contesting election proceedings under Section 1405 F of the Election Code, which provides as follows:

F. An action contesting the certification of a recall petition shall be instituted within fifteen days after the governor has issued the proclamation ordering the recall election or within fifteen days after the last day for the governor to call the election if no recall election is called.

La. R.S. 18:1404 F.

Additionally, Dean’s right of action and the Election Code procedure for this action are recognized in Section 1300.17, which provides:

Nothing contained in this Chapter shall be construed to deny to any public officer recalled, or whose recall is sought, the right to contest the recall, or any proceedings in relation thereto, in any court of competent jurisdiction, for fraud or other illegality. The procedural provisions of Chapter 9, Part I, of this Code shall be applicable to such actions.

La. R.S. 18:1300.17.

Since these provisions clearly place the dispute within the Election Code and its special expedited procedure, we have determined for the reasons set forth below that Crew’s appeal of the judgment was untimely pursuant to Section 1409 of the Code. Accordingly, we dismiss the appeal.

The record reveals that the ruling of the trial court against the defendants was rendered orally at the conclusion of the trial on Thursday, August 26, 2004. The court granted the injunctive relief sought by Dean, finding that the chairman of the recall petition effort did not reside in the Deity limits of the Town of Homer. The court reiterated to counsel the “very short” time delays for election code proceedings, and counsel for Dean offered to draft a written judgment as soon as possible. That written judgment was then signed by the court and filed in the record later, on August 26.

The record next reflects that written notice of judgment was mailed to all parties on Friday, August 27, 2004. The next pleading in the record is Crew’s “Notice of Appeal,” requesting an order of appeal. Attached to the “Notice of Appeal” is counsel’s certificate of service dated August 31, 2004, showing that other counsel and parties were notified by mail of the appeal. Nevertheless, the actual “Order” for appeal was not signed by the trial court until September 1, 2004, while the Notice of Appeal and Order, themselves, were not filed in the record until September 2. Upon the lodging of appeal with this court on September 3, 2004, we set a time for oral argument of this case and issued an order for the parties to show cause why the appeal should not be dismissed as untimely.

The provisions for the rendition of a judgment under the Election Code and its appeal are contained in Section 1409, which provides, in pertinent part, as follows:

C. In all actions, the trial judge shall render judgment within twenty-four hours after the case is submitted to him and shall indicate the date and time rendered on the judgment. The clerk of the trial court shall immediately notify all parties or their counsel of record by telephone and/or facsimile transmission of the judgment.
D. Within twenty-four hours after rendition of judgment, a party aggrieved by the judgment may appeal by obtaining an order of appeal and giving bond for a sum fixed by the court to Rsecure the payment of costs. The clerk of the trial court shall give notice of the order of appeal to the clerk of the court of appeal and to all the parties or their counsel of record. The trial judge shall fix the return day at a time not to exceed three days after rendition of judgment.

At the oral argument of this case, Crew’s counsel asserted that he did not receive notice of the judgment until August 31, five days after the signing of the judgment. That day may have coincided with the time of counsel’s receipt of the clerk’s written notice of judgment. However, counsel did not elaborate.

From our review of these proceedings, we first find that the statute itself gives notice that an Election Code judgment shall be rendered within twenty-four hours of the close of the trial. The case was not taken under advisement by the trial court at the conclusion of trial. Instead, Crew received initial notice by the trial court’s oral ruling of the adverse judgment. Section 1409 J requires the signing of a written judgment, and that occurred timely within twenty-four hours of the close of trial. Whether Crew or his counsel received notice via facsimile or telephone on August 26, 2004, was not reviewed with this court during oral argument. Nevertheless, the law itself gave a special notice that an appeal would be required to be filed within forty-eight hours of the close of trial. Despite that notice, Crew waited until August 31 without seeking further inquiry of this expedited proceeding. Moreover, on August 31, when Crew’s counsel received notice of judgment, no filing of a motion for appeal occurred. Such notice, if first received on that date, showed that “twenty-four hours after the rendition of judgment” had passed by Friday, August 27. | ¡^Nevertheless, no action for appeal was taken on August 31, and another day elapsed before the trial court signed the order of appeal on September 1.

Accordingly, under the provisions of Section 1409 of the Election Code, we find that Crew received ample notice of the August 26 judgment and that the appeal on September 1 came too late. The appeal is dismissed with costs assessed to appellant.

APPEAL DISMISSED.

BROWN, C.J., concurs with written reasons.

STEWART, J., concurs in the dissent by GASKINS, J., with additional reasons.

GASKINS, J., dissents with written reasons.

|1BROWN, C.J.,

concurring.

I agree with the dissent that the question of Mr. Crew’s eligibility should not defeat the recall petition. I agree, however, with the trial court that the failure/refusal to provide the names on the recall petition was an illegality that affected the validity of the recall.

Because I would affirm, I concur in the opinion.

h STEWART, J.,

concurs in the dissent by GASKINS, J., with additional reasons.

The majority misconstrues the salient facts and law in this matter by classifying it as a pure election dispute. Counsel for the appellee in his brief and upon direct examination of this Court during oral argument, failed to cite any provision of the election code that authorized the action prayed for in his petition to the district court. In fact, his main complaint has always been that the appellants did not comply with the custodial requirements of disclosing the recall petitions under the public records doctrine.

The judgment of the trial court enjoining the Governor and Secretary of State from holding an election that has not been called is facially defective and beyond the scope of powers of the district court.

Lastly, the majority opinion avoids the fundamental issue before the court. That is, the right of the citizens of Homer to hold a lawful election and allow their votes to be heard. The majority opinion is tantamount to a disenfranchisement of those citizens in clear derogation of their constitutionally protected right to vote.

Thus, I respectfully dissent.

h GASKINS, J.,

dissents.

I respectfully dissent. The majority refuses to hear this appeal, contending that the appellants did not timely obtain an order of appeal, as mandated under La. R.S. 18:1409. I disagree. From the inception of this lawsuit, the times set out under the election law were disregarded. The hearing at the trial court should have been held on the fourth day after the filing of the case sub judies. Instead, it was held 15 days later. La. R.S. 18:1406. After the trial judge rendered judgment, the clerk of court was charged with immediately notifying all parties or their counsel by telephone or FAX. La. R.S. 18:1409. Instead, a certified judgment was mailed to counsel. This appeal was taken within 24 hours of the certified notice.

Appeals are favored under the law. When the court, or its officers, do not follow the law regarding notice of judgment, it is unfair to penalize the litigants by requiring their strict compliance with the time limitations. Once given notice, the appellants tendered the order of appeal timely. I would allow this appeal to be heard.

The trial judge found that the chairman and vice-chairman on the recall petition were not qualified voters. Under the provisions of La. R.S. 18:1300.5(A), the chairman and vice-chairman on a recall petition each shall be a qualified voter in the voting area from which the public official whose recall is being sought is elected. When the recall petition was instigated, Mr. Crew, the chairman, lived outside the city limits, but when the petition was submitted to the Registrar of Voters, he had moved across | gthe street and within the city limits. Mr. Crew testified that he believed this contested address to be within the city limits and had voted in mayoral and city council elections. Likewise, the registrar had issued a voter identification card that showed Mr. Crew to be a city resident.

An argument could be made that because of the misconception of Mr. Crew and the registrar regarding his residence within the city limits, he was qualified to be the recall petition’s chairman. However, even taking the trial court’s position that Mr. Crew is not eligible for this chairmanship, the petition is not defeated. La. R.S. 18:1300.5 provides that the vice-chairman is entitled to act on the death, disability, absence, or resignation of the chairman. The vice-chairman, Maxine Wilson, was not disqualified. The statute provides for a situation such as we have here, where a vice-chairman has to step in for a chairman who is unable to complete his duties. The disqualification of Mr. Crew, consequently, would not defeat the recall petition.

Numerous public records requests were issued by Mayor Dean to Mr. Crew and Ms. Wilson to obtain the names on the petition. Several names were provided initially to the mayor but, as more were collected, they were not disclosed' until right before the entire list was submitted. The trial court found that the failure to respond to the public records request was an illegality that affected the validity of the recall. See La. R.S, 18:300.7.

The law clearly provides that the chairman and vice-chairman are subject to all the provisions of La. R.S. 44:31, et seq., the Public Records Act. La. R.S. 18:1300.5. This act provides remedies for failure to respond 13to public records requests, such as mandamus, penalties, and attorney fees. Testimony in this hearing indicated the mayor knew that names were being collected and that the appellants did not intend to give him updated lists until they received them back from the workers. While there could be an instance where a failure to comply with the Public Records Act might constitute fraud or illegality, the circumstances of this case do not.

I would, therefore, reverse the trial court’s injunction.

      . The suit also named as defendants, the Governor of the State of Louisiana and the Secretary of State, and the judgment specifically enjoined both of those officials from issuing the call of a special recall election pursuant to La. R.S. 18:1300.7.

      . In addition to injunctive relief, the petition sought relief in the form of attorney fees and costs for Crew's violation of the public records law, La. R.S. 44:35, for his failure to release a copy of the list of persons seeking recall during the time of circulation of the recall petition. The trial court did not grant that relief although it found the statute was violated by Crew, as chairman of the recall effort and custodian of the records.

      . The record, although not entirely clear, indicates that the Governor did not render a proclamation within fifteen days of the petition's certification for a special recall election pursuant to La. R.S. 18:1300.7; yet, the 15-day or 30-day period for Dean to contest the certification of the recall petition had not passed when this action was commenced.

      . There could be some argument that this case was not brought under the Election Code but for purposes of this response I will assume the Election Code applies.


author: COBB, Presiding Justice,

text:
    Lincoln E. WARREN, Sr., by Lincoln E. WARREN, Jr., Conservator v. Jack L. GLASCOE and Margaret C. Glascoe.
    No. 2001-CT-01368-SCT.
    Supreme Court of Mississippi.
    July 1, 2004.
    Rehearing Denied Sept. 9, 2004.
    Bill Waller, Sr., Jackson, attorney for appellants.
    Joshua J. Wiener, William W. McKinley, Jr., Jackson, attorneys for appellees.
   ON WRIT OF CERTIORARI

COBB, Presiding Justice,

for the Court.

¶ 1. In November 1998, Lincoln E. Warren, Sr. was injured by a car driven by Daniel Shields, the 15-year-old grandson of Jack L. and Margaret C. Glascoe. Shields was driving his grandfather’s car under a learner’s permit at the time of the accident. Warren filed suit in the Hinds County Circuit Court alleging that the Glascoes were liable for his injuries on the grounds of negligent entrustment, negligent supervision, and vicarious liability. The circuit court granted summary judgment in favor of the Glascoes, certified as final pursuant to M.R.C.P. 54(b). Warren filed a timely appeal, and the Court of Appeals affirmed the circuit court’s dismissal in a unanimous decision. Warren ex rel. Warren v. Glascoe, 852 So.2d 634 (Miss.Ct.App.2003). Following denial of Warren’s motion for rehearing, he filed a petition for writ of certiorari requesting: interpretation and strict construction of the learner’s permit statute, as a case of first impression; determination of what, if any, legal relationship exists between a learner’s permit driver and a guest passenger; and consideration of all theories of negligence not addressed by the trial court and Court of Appeals.

¶ 2. Because this is a case of first impression, we granted the petition for cer-tiorari. After careful consideration of all issues, we hold that Miss.Code Ann. § 63-1-21 (Supp.2000) does not impute the negligence of the permittee to the licensed driver who is occupying the seat beside the permittee. Further, we hold that the record before us does not sustain any of the other theories of negligence asserted by Warren. Therefore, we affirm the Court of Appeals’ affirmation of the trial court’s grant of summary judgment.

FACTS

¶ 3. After spending the night in Jackson with his grandparents, Margaret and Jack Glascoe, 15 year old Daniel Shields drove Margaret to Yazoo City and back to Jackson in Jack’s automobile. Daniel had received his learner’s permit approximately thirty days earlier. On the return trip, Daniel collided with a vehicle driven by Lincoln Warren, Sr. on County Line Road in Ridgeland. Warren alleges that since the accident he suffers from a semi-comatose condition.

STANDARD OF REVIEW

¶ 4. We have stated:

The standard for reviewing the granting or the denying of summary judgment is the same standard as is employed by the trial court under Rule 56(c). This Court conducts a de novo review of orders granting or denying summary judgment and looks at all the evidentiary matters before it-admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light, most favorable to the party against whom the motion has been made. If, in this view, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied. Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant would be given the benefit of the doubt.
The focal point of our standard for summary judgment is on material facts. If the party opposing the motion is to avoid entry of an adverse judgment, he or she must bring forth evidence which is legally sufficient to make apparent the existence of triable fact issues. Summary judgment is mandated where the nonmoving party fails to show evidence sufficient to establish the existence of an essential element of his case.

Sligh v. First Nat’l Bank of Holmes County, 735 So.2d 963, 965-66 (Miss.1999) (internal citations omitted).

¶ 5. On appeal, the trial court’s decision is reversed only if it appears that triable issues of fact remain when the facts are viewed in the light most favorable to the nonmoving party. Rawson v. Jones, 816 So.2d 367, 369 (Miss.2001).

ANALYSIS

1. What duties, if any, are imposed on the adult licensed driver who must occupy the vehicle when the permittee is licensed under Miss. Code Ann § 63-1-21.

¶ 6. Warren alleges that the Glas-coes were negligent in their supervision of Daniel as he drove on November 7, 1998. In particular, Warren alleges that the Glascoes were negligent in (1) allowing a beginner driver to drive a large vehicle on main roads and highways, (2) not controlling the activities of the driver, including a left turn into a head-on collision, (3) allowing Daniel to drive over six (6) hours of time through numerous areas including stops to accommodate the needs and wishes of the co-driver, and (4) failure to warn. Warren alleges that the Glascoes’ duty to supervise Daniel in his operation of the automobile arose from Miss.Code Ann. § 63-1-21.

¶ 7. Since 1995, Miss.Code Ann. § 63-1-21 has provided, in its second paragraph that:

A temporary driving permit entitles the holder, provided the permit is in his immediate possession, to drive a motor vehicle other than a motorcycle on the highways of the State of Mississippi only when accompanied by a licensed operator who is at least twenty-one (21) years of age and who is actually occupying the seat beside the driver.

It did not include any requirement of supervision by the accompanying adult driver. An amendment in 1995 added a supervision requirement for a restricted motorcycle operator’s license, but did not add any supervision requirement for an automobile operator’s license. Only in the 2000 amendment to § 63-1-21 was the statute changed to add subsection (3) which requires that an “intermediate licensee must be supervised” by the accompanying adult. But even with this addition, no comparable change was made to add a supervision requirement to subsection (2). The accident involved in the present case occurred in 1998.

¶ 8. Although the statute in effect in 1998 does not explicitly require the licensed driver to supervise the permittee, Warren argues that it is the implicit intent of the Mississippi Legislature in requiring a co-driver who is over the age of twenty-one to assure that there is a co-driver with sufficient skill and maturity to properly supervise the beginning driver.

¶ 9. The Glascoes argue that the Legislature consciously intended to limit vicarious liability for the negligence of a minor driver to the individual(s) signing the minor’s application for a license and/or permit, pursuant to Miss.Code Ann. § 63-1-25 (2002), which states as follows:

Except as otherwise provided in section 63-1-27,[ ] any negligence or wilful misconduct of a minor under the age of seventeen years when driving a motor vehicle upon a highway shall be imputed to the person who has signed the application of such minor for a permit or license, which person shall be jointly or severally liable with such minor for any damages caused by such negligence or wilful misconduct.

¶ 10. The requirement of § 63-1-21, that a licensed driver at least twenty-one (21) years of age accompany and be seated beside the driver, does not explicitly impose any duty on the licensed driver, nor is the requirement intended to make the licensed driver vicariously liable for the negligent acts of the minor. At first view, that requirement coupled with the provisions of § 63-1-25, would indicate no need for further analysis. Nevertheless, because this is a case of first impression, we write summarily to provide guidance for the bench and bar, and should it choose to consider further amending the statute, for the Legislature.

¶ 11. Whether a duty exists is a question of law. Rein v. Benchmark Constr. Co., 865 So.2d 1134, 1143 (Miss.2004). In interpreting the legislative intent behind Miss.Code Ann. § 63-1-21, this Court follows the long established rule that statutes that are in derogation of the common law are, as a general rule, strictly construed, not extending liability “beyond that which is clearly indicated by its express terms.” Houston v. Holmes, 202 Miss. 300, 303, 32 So.2d 138, 139 (1947).

¶ 12. In its original adoption of Miss. Code Ann. § 63-1-21, the Legislature did not provide a stated purpose for the statute. Two years after the accident which is the subject of this case, in its 2000 amendment, the legislature stated that it “has recognized the need to develop a graduated licensing system in light of the disproportionately high incidence of motor vehicle crashes involving youthful motorists. This system will improve highway safety by progressively developing and improving the skills of younger drivers in the safest possible environment, thereby reducing the number of vehicle crashes.”

¶ 13. In 2000, when adding subsection (3), the Legislature made no change in the requirement that the accompanying licensed driver had to be at least twenty-one (21) years of age, but did add an intermediate license provision in which the supervision language appears for the first time. The language following the 2000 amendment reads as follows:

(3) An intermediate license allows unsupervised driving from 6:00 a.m. to 10:00 p.m. At all other times the intermediate licensee must be supervised by a parent, guardian or other person age twenty-one (21) years or older who holds a valid driver’s license under this article and who is actually occupying the seat beside the driver.

¶ 14. The 2000 legislative amendments to § 63-1-21 did not exist at the time of the accident in this case and thus are not applicable to impose any duty of supervision or liability upon Jack or Margaret Glascoe under any of the theories argued by Warren. Therefore, this Court holds that the trial court’s granting of summary judgment in favor of the Glascoes was proper, based on the plain language of Section 63-1-21 as it existed at the time of the accident and the record before this Court on appeal.

CONCLUSION

¶ 15. For these reasons, we affirm the judgments of both the trial court and the Court of Appeals.

¶ 16. AFFIRMED.

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

      . When the suit was initially filed in 1999, not only were the Glascoes named as defendants, but also Daniel Shields, by and through his parents and next friends, Dennis J. and Donis G. Shields; United States Fidelity and Guaranty Company; and American Family Home Insurance Company. Summary judgment in favor of the insurance companies was entered in February, 2000, and certified pursuant to Rule 54(b). The appeal from that judgment was heard by the Court of Appeals, which affirmed the trial court. See Warren ex rel. Warren v. United States Fidelity & Guar. Co., 797 So.2d 1043 (Miss.Ct.App.2001).

      . This judgment left only the Shields as defendants in the original action. All action against them was stayed by the Bankruptcy Court in December, 2000.

      . The facts as stated are adopted from the Court of Appeals' opinion in Warren ex rel. Warren v. Glascoe, 852 So.2d 634, 637 (Miss.Ct.App.2003).

      . The first paragraph pertains to the fee to be paid to the Department of Public Safety.

      . This section provides a process whereby the person signing the application may request and obtain release from liability imposed under Section 63-1-25.

      . See Laws 2000, Ch. 624, § 1. This language tracks the graduated driver licensing model law, approved by the National Committee on Uniform Traffic Laws and Ordinances (NCUTLO).


text:
    CONDERE CORPORATION d/b/a Fidelity Tire and Manufacturing Company v. Jerry MOON, Sylvia Moon and Thomas Young.
    No. 2001-CA-01382-SCT.
    Supreme Court of Mississippi.
    July 1, 2004.
    Rehearing Denied Sept. 9, 2004.

      Peyton S. Irby, Wendy Moore Shelton, Jackson, Jeffrey K. Tyre, attorneys for appellant.
    William J. Little, Jr., Jack Harang, Stuart H. Smith, attorneys for appellees.
   COBB, Presiding Justice,

for the Court:

¶ 1. At issue in this case is whether Condere Corporation (Condere) was properly found liable for maliciously prosecuting Jerry Moon, Sylvia Moon (hereinafter collectively “the Moons”), and Thomas Young (Young). Condere sued the Moons and Young in federal court for defamatory remarks made regarding Condere’s business. The federal court dismissed the suit, finding that Condere was a vortex public figure and had not proved the Moons and/or Young knew their statements were false.

¶2. Thereafter, the Moons and Young sued Condere in Adams County Circuit Court for malicious prosecution, abuse of process, and intentional infliction of emotional distress. Condere moved for summary judgment, which the trial court granted. On appeal, this Court reversed and remanded the summary judgment as to the plaintiffs’ malicious prosecution claims and affirmed summary judgment on the abuse of process claims. Moon v. Condere Corp., 690 So.2d 1191 (Miss.1997) (Moon I).

¶ 3. Following trial, a jury found for the plaintiffs on their malicious prosecution claims and awarded $250,000 in compensatory damages and $100,000 in punitive damages to each plaintiff. The trial judge awarded an additional $25,000 in fees and costs to each plaintiff.

¶ 4. Aggrieved by the trial court’s judgment, Condere appeals, assigning the following errors: the trial court’s (1) refusal to admit the federal court’s opinion into evidence and (2) allowing testimony regarding Moon’s unemployment; as well as (3) the prejudicial closing argument of plaintiffs’ attorney; (4) the jury’s verdict being against the weight of the evidence; (5) the trial court’s failure to remit damages for emotional distress and (6) an improper punitive damages instruction. Based on the record before us, we reverse and render in Condere’s favor because the element of malice, necessary to find malicious prosecution, was not proven. (Given this disposition, we need not address the other issues.)

FACTS

¶ 5. In the summer of 1986, it was announced that Armstrong Tire Company would close its Natchez plant. Condere, a Delaware corporation organized by former management employees of Armstrong Tire, purchased the Natchez plant effective March 17, 1989, and began manufacturing tires under the name of Fidelity Tire Manufacturing Company (Fidelity), a division of Condere. When Fidelity began operations, it hired some of the former Armstrong employees, while not hiring others. Jerry Moon and Thomas Young were among the employees who were not rehired.

¶ 6. Condere applied for a ten-year tax exempt status. One requirement for the exemption was that the applicant had to be a “new business” in Mississippi. On July 5, 1988, at a hearing convened for the purpose of considering Condere’s request, Jerry and Sylvia Moon appeared and made statements alleging, inter alia, that Con-dere was not a new business. These statements were broadcast by KNOE-TV (Channel 8) in Monroe, Louisiana, and seen by viewers in Mississippi.

¶ 7. On July 14, 1988, acting on behalf of Condere, Scott Kern wrote the Moons informing them that their statements were false and asked that they make retractions. Kern was told to contact the Moons’ attorney William Guy. On August 17, 1988, Kern wrote Guy explaining the corporate structure of Condere and requested that the Moons retract their statements. He also stated that “[i]f a correction has not been publicly made by next Thursday, August 25, 1988, I will instruct our counsel to file suit in the Federal District Court in Vicksburg the following day.” No retraction was made, and Con-dere filed a slander suit against the Moons on August 26,1988.

¶ 8. About four months later, Thomas Young sent a letter to the editor of a local Natchez newspaper which included the allegations that Condere was still linked to Armstrong and added that “Fidelity Tire Company has accepted federal money to ‘train’ men to do jobs they have had for years!” On November 18, 1988, Kern wrote a letter to Young demanding a retraction. Young issued no such retraction, and Condere filed suit for defamation on December 1, 1988 in the United States District Court for the Southern District of Mississippi, Western Division.

¶ 9. On October 11, 1989, the federal district court found that Condere Corporation was a vortex public figure. The court further held that Condere had failed to prove that the Moons or Young “knew that their statements were false or entertained any doubt as to their truth whatsoever.” Additionally, the court stated that “the record is devoid of any evidence of actual injury suffered by Condere.” The case was dismissed on a summary judgment motion filed by the defendants.

¶ 10. On August 25, 1989, and November 29, 1989, respectively, the Moons and Young filed suits against Condere in the Adams County Circuit Court, for malicious prosecution, abuse of process, and intentional infliction of emotional distress. The suits were later consolidated. The circuit court found that Condere did have probable cause based on the fact that the United States District Court found elements of a defamation action. The circuit court also held that there was no basis for the plaintiffs’ claims of abuse of process and intentional infliction of emotional distress. From this ruling, the Moons and Thomas Young appealed to this Court.

¶ 11. On March 28, 1997, this Court reversed and remanded the summary judgment on plaintiffs’ malicious prosecution claims and affirmed summary judgment on plaintiffs’ abuse of process claims. Moon I, 690 So.2d 1191 (Miss.1997). Following a trial on March 22-23, 2001, a jury-found for plaintiffs on their malicious prosecution claims and awarded $250,000 in compensatory damages and $100,000 in punitive damages to each of the three plaintiffs. On May 2, 2001, the circuit court entered judgment on the jury verdict. On May 10, 2001, Condere filed an Alternative Motion for Judgment Notwithstanding the Verdict or for a New Trial or to Alter or Amend Judgment or for Remittitur. On August 1, 2001, the court denied Condere’s post-trial motion and entered an amended judgment which also awarded $25,000 in fees and costs to each plaintiff.

STANDARD OF REVIEW

¶ 12. In reviewing a trial court’s denial of a motion for judgment notwithstanding the verdict under Miss. R. Civ. P. 50(b), this Court:

must look at all of the evidence — not just that which supports the Appellees’ case — in the light most favorable to Ap-pellees, [the Moons and Young]. The credible evidence tending to support the Appellees’ case must be taken as true. Appellees must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Evidence favorable to the Appellants must be disregarded if it is contradicted or its credibility is otherwise called into question. If the facts and inferences, so ■considered, point so overwhelmingly in favor of the Appellants that reasonable persons could not have arrived at a contrary verdict, we must reverse. On the other hand, if there is substantial evidence supporting the verdict, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the jury verdict and the judgment entered thereon must be allowed to stand, and we, accordingly, have no authority to interfere. These principles have been stated in cases too numerous to cite. We have enforced them in malicious prosecution cases the same as in any other context where an appellant challenges a jury verdict in a civil action.

Strong v. Nicholson, 580 So.2d 1288, 1292 (Miss.1991) (citations omitted). By the same token, this Court may overturn a jury verdict if it is against the overwhelming weight of the evidence, or if damages are excessive or inadequate because either the jury was influenced by passion, prejudice or bias, so as to shock the conscience. Junior Food Stores, Inc. v. Rice, 671 So.2d 67, 76 (Miss.1996).

ANALYSIS

¶ 13. The elements of the tort of malicious prosecution are:

(1) The institution of a proceeding
(2) by, or at the insistence of the defendant
(3) the termination of such proceedings in the plaintiffs favor
(4) malice in instituting the proceedings
(5) want of probable cause for the proceedings
(6) the suffering of injury or damage as a result of the prosecution.

McClinton v. Delta Pride Catfish, Inc., 792 So.2d 968, 973 (Miss.2001). All six of these elements must be proven by a preponderance of the evidence. Van v. Grand Casinos of Mississippi, Inc., 724 So.2d 889, 891 (Miss.1998).

¶ 14. Condere argues that the jury’s verdict was against the weight of the evidence and supported by insufficient evidence, specifically asserting that the Moons and Long “presented no reason for the jury to believe Condere lacked probable cause or acted maliciously when filing the underlying defamation action,” citing McClinton and Robb v. United States Fid. & Guar. Co., 798 F.2d 788 (5th Cir.1986).

¶ 15. The first three elements necessary to prove malicious prosecution were not in dispute in this case. Condere filed a civil suit against the Moons alleging slander, and a separate suit against Thomas Young alleging defamation. The United States District Court for the Southern District of Mississippi found, in its memorandum opinion and order, that Condere was a vortex public figure and its “activities were the subject of fair comment,” and dismissed both lawsuits with prejudice on the Moons’ and Young’s motions for summary judgment.

¶ 16. In Moon I, 690 So.2d at 1196, this Court found that “a fair minded jury might conclude that [the defamation suits were] brought without probable cause.” In other words, summary judgment was improper because a jury question was presented on the issue of probable cause. After review of the record, we find that the jury’s finding in favor of the plaintiffs on the probable cause issue was not against the weight of the evidence. The plaintiffs produced the testimony of Dennis Terwilliger, president of Condere, who made the decision to file the defamation suits without any knowledge of the term vortex public figure, or the consequences of its possible application. Under the circumstances the jury could find that Condere did not have a reasonable belief of a good chance of success, but that is not the ultimate issue.

¶ 17. The failure to establish the element of malice is what defeats the plaintiffs’ claims. As to that element, this Court has stated:

Malice does not refer to mean or evil intent, as a layman might ordinarily think. Rather, malice in the law of malicious prosecution is a term used in an artificial and legal sense. It connotes a prosecution instituted primarily for a purpose other than that of bringing an offender to justice. Benjamin v. Hooper Electronic Supply Co., 568 So.2d at 1191; Royal Oil Co., Inc. v. Wells, 500 So.2d at 444; Owens v. Kroger Co., 430 So.2d at 847; State Life Insurance Co. of Indianapolis v. Hardy, 189 Miss. 266, 277, 195 So. 708, 713 (1940). As such, it refers to the defendant’s objective, not his attitude.
Malice may be and usually is shown by circumstantial evidence. The jury may infer malice from the facts of the case. Benjamin, 568 So.2d at 1191; Royal Oil, 500 So.2d at 444; Owens, 430 So.2d at 847. Malice may be inferred as well from the fact that a defendant may have acted with reckless disregard for the plaintiffs rights. Benjamin, 568 So.2d at 1191.

Strong v. Nicholson, 580 So.2d at 1293.

¶ 18. Although in Owens v. Kroger Co., 430 So.2d 843, 848 (Miss.1983), this Court acknowledged the general rule that malice is a jury question, we also stated that “[u]nlike probable cause, the question of malice is to be determined by the jury unless only one conclusion may reasonably be drawn from the evidence.” (emphasis added) (citing Brown v. Watkins, 213 Miss. 365, 56 So.2d 888 (1952)).

¶ 19. The Moons and Young argue that because Condere was not primarily interested in damages, but rather in a retraction of the statements made by the Moons and Young, it acted with malice, because the only proper purpose of a defamation suit is damages. In other words, Condere should be punished because its real intention was clearing its name instead of financially damaging the Appel-lees. “The gravamen of action for libel is ... degrading of reputation.” Forman v. Miss. Publishers Corp., 195 Miss. 90, 14 So.2d 344 (1943). Condere used available civil law remedies to attempt to show that others were making false and damaging statements against it. This is not an improper objective. See also McClinton, 792 So.2d at 974 (shortages in inventory was reasonable concern for any business and did not amount to malice where it was basis for investigation and prosecution of Appellant).

¶ 20. Reviewing all the evidence in the light most favorable to the Moons and Young, as we must on a motion for JNOV, we find that reasonable persons could not have found that Condere acted with malice in this case. The circuit court’s judgment against Condere is reversed, and judgment is rendered in favor of Condere.

CONCLUSION

¶ 21. In 1988 the Moons and Youngs set in motion a series of statements and acts which resulted in sixteen years of litigation. This Court, on a deeply divided vote in Moon I, provided them the opportunity to present their case to the Adams County Circuit Court jury which returned a verdict in their favor. Although the trial court denied Condere’s motion for judgment notwithstanding the verdict, this Court, after reviewing all the evidence in the record regarding the question of malice, determines that only one conclusion may reasonably be drawn from the evidence. It is so overwhelmingly in favor of Condere that reasonable persons could not have arrived at a contrary verdict. Thus, the judgment of the Adams County Circuit Court is reversed, and judgment is rendered in favor of the Condere Corporation.

¶ 22. REVERSED AND RENDERED.

SMITH, C.J., WALLER, P.J., CARLSON AND DICKINSON, JJ., CONCUR. EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

      . See Moon I, 690 So.2d 1191, 1195-96 (Miss. 1997).

      . The terms defamation, libel, and slander have been used somewhat loosely and interchangeably in this case since its inception, although that would not make a difference in the result which we reach today. Defamation is defined as ''[t]he act of harming the reputation of another by making a false statement to a third person.” Black’s Law Dictionary 427 (7th ed.1999). "Libel is written or visual defamation; slander is oral or aural defamation.” Robert D. Sack & Sandra S. Baron, Libel, Slander, and Related Problems § 2.3, at 67 (2d ed.1994) Id. at 927.


author: EASLEY, Justice,

text:
    Robert SPENCER, Jr. v. STATE of Mississippi.
    No. 2003-KM-00672-SCT.
    Supreme Court of Mississippi.
    Aug. 26, 2004.

      Tommy Wayne Defer, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before WALLER, P.J., EASLEY and CARLSON, JJ.
   EASLEY, Justice,

for the Court.

PROCEDURAL HISTORY

¶ 1. Robert Spencer, Jr., (Spencer), was charged with various misdemeanor traffic violations, including first offense DUI. Spencer was found guilty in the Justice Court of Yalobusha County, Mississippi on all charged offenses on August 28, 2000.

¶ 2. On September 6, 2000, Spencer filed a notice of appeal with the Circuit Court of Yalobusha County. Katherine Ward (Ward), prosecuting attorney for Yalobu-sha County (State), sent Spencer a letter dated September 29, 2000, that his notice of appeal was inadequate to perfect his appeal from justice court. Ward’s letter was filed with the clerk’s office on October 2, 2000. On August 29, 2002, Circuit Court Judge Ann H. Lamar entered an order setting trial on January 23, 2003.

¶ 3. Spencer retained attorney Tommy Defer (Defer) to represent him. Defer entered his entry of appearance on November 7, 2002. Spencer did not file a bond with the circuit court until January 15, 2003.

¶ 4. The circuit court conducted a hearing on January 23, 2003. The court heard the State’s motion to dismiss Spencer’s appeal as not being properly perfected from justice court. The circuit court dismissed Spencer’s appeal with prejudice and remanded the case to the justice court for execution of the sentence originally rendered.

¶ 5. Spencer now appeals the dismissal of his appeal by the circuit court. On appeal to this Court, the State filed a motion to dismiss this appeal on December 17, 2003. The motion remains open being passed by this Court on December 18, 2003, for consideration together with the merits. Spencer filed his response to the State’s motion to dismiss appeal on December 29, 2003.

LEGAL ANALYSIS

¶ 6. This Court employs a de novo standard of review of a trial court’s grant or denial of a motion to dismiss. See Harris v. Miss. Valley State Univ., 873 So.2d 970, 988 (Miss.2004). Here, the circuit court conducting a bench trial, granted the State’s motion to dismiss, finding that Spencer’s appeal from justice court had not been properly perfected.

¶ 7. In reviewing the record, the circuit court found that Spencer’s notice of appeal did not provide a certificate of service pursuant to Rule 5.04 of the Uniform Circuit and County Court Rules. However, the circuit court was primarily concerned by the lack of a bond posted to perfect the appeal as required by Rule 12.02 A. In its bench ruling, the circuit court found that the appeal was not perfected and remanded the matter to justice court. The circuit court reasoned:

Now, it goes without dispute, I suppose, at this point that there was no perfection of the cost bond at the time that this appeal was filed.
Rule 12.02 ... says that one must file simultaneously written notice of appeal and cost bond within thirty days of the judgment with the clerk of the court. The written notice of appeal and posting of cost bond perfects the appeal. The failure to post bond required by this rule shall be grounds for the court, on its own motion or on motion of another, to dismiss the appeal with prejudice and costs.

¶ 8. On appeal, the State contends that the circuit court did not err in dismissing the appeal. The State cites Riley v. Town of Lambert, 856 So.2d 721 (Miss.Ct.App.2003), in support of the circuit court’s dismissal of Spencer’s appeal. In Riley, the court stated:

Riley filed a notice of appeal on March 23, 1998, from the judgments of conviction which were entered on February 23, 1998, but no cost bond was filed until April 21, 1998, almost two months following the date of the judgments.
A review of the record reveals that, in addition to the tardy filing of the cost bond, Riley never filed an appearance bond. A document styled as a superse-deas bond is found among the court papers, but that document is not approved by any official associated with either the circuit or municipal court. Moreover, this bond was also filed late, as it was also filed on April 21, 1998, approximately thirty days past the appeal period. Further, the contents of the document indicate that it is really a cost bond, not an appearance bond.
On these facts, two conclusions are inescapable. First, Riley’s appeal was not timely perfected, for the rule provides that the appeal is not perfected until two things occur: the filing of a written notice of appeal and a cost bond. Both of these filings are to be done within thirty days of the judgment from which the appeal is taken. Here, the written notice of appeal was filed within the thirty days permitted by the rule, but the cost bond was not filed until approximately sixty days after the municipal court judgment was entered. Therefore, it was not timely. Second, it is not debatable that an appearance bond was never filed. The rule provides that the failure to post any bond required by this rule shall be grounds for the court, on its own motion or by motion of another to dismiss the appeal with prejudice.
Therefore, since Riley failed to post one of the requisite bonds, the trial court, in its discretion, was empowered to dismiss the appeal on its own motion or by the motion of another. Here it was the clerk of the court, traveling in a civil procedure vehicle and invoking a different basis than that provided for in Rule 12.02, who asked that the appeal be dismissed. The trial court, embracing the message contained in the clerk’s invocation, utilized its discretion and dismissed the appeal. In deciding the appropriateness vel non of the trial judge’s action, we look not at the identity of the messenger or the type of procedural vehicle employed by the messenger to deliver the message, but at the totality of the factual circumstances to ascertain whether there is any legal basis which may properly justify the action taken by the trial judge in response to the message.
We know of no case which permits the filing of the required bonds past the thirty-day appeal time.

Riley, 856 So.2d at 722-25 (emphasis added). We agree with this analysis.

¶ 9. As Spencer was found guilty in the justice court on August 28, 2000, and he did not post bond with the circuit court until January 15, 2003, we find that the circuit court did not err in dismissing Spencer’s appeal and remanding the matter to the Justice Court of Yalobusha County for execution of the sentence.

CONCLUSION

¶ 10. This Court affirms the judgment of the Circuit Court of Yalobusha County.

¶11. AFFIRMED.

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

      . Besides first offense DUI, Spencer was also charged with driving with a suspended license, driving on the wrong side of the road, and a seatbelt violation.


author: WALLER, Presiding Justice,

text:
    Carol Renee SIMPSON v. Michael W. BOYD.
    No. 2003-CA-00425-SCT.
    Supreme Court of Mississippi.
    Aug. 26, 2004.

      Charles T. Yoste, Starkville, Stephanie L. Mallette, attorneys for appellant.
    Gaines S. Dyer, Greenville, L. Carl Hag-wood, Jackson, attorneys for appellee.
   WALLER, Presiding Justice,

for the Court.

¶ 1. Carol Renee Simpson appeals from a summary judgment which dismissed her complaint and civil action for damages against her former employer, attorney Michael W. Boyd, arising from injuries inflicted by an intruder while Simpson was at work. Simpson sued Boyd, claiming that (1) Boyd’s failure to provide an safe work environment was the proximate cause of her injuries, (2) Boyd’s failure to comply with city building codes constituted negligence per se, and (3) Boyd negligently advised Simpson to file for bankruptcy without informing her of the possibility of bringing a lawsuit against himself or the attacker.

¶ 2. In granting summary judgment, the Washington County Circuit Court discussed the first two of Simpson’s claims, but failed to address her third claim for legal malpractice. We affirm the trial court’s judgment with respect to Simpson’s first claim, reverse and remand with respect to the second, and vacate and remand with respect to the undecided third issue in light of the fact that it is inappropriately before this Court.

FACTS

¶ 3. The law office of bankruptcy attorney Michael W. Boyd, located in Green-ville, Mississippi, has been the site of occasional moments of discord. At one point, one of Boyd’s employees had to call the police after Boyd got into a fracas with one of his clients. One client called Boyd on the phone and made a number of threats. Renee Simpson testified that once every other month an agitated client would cause some type of disturbance in the office. One time, the irate acquaintance of a coworker came to the office and caused such a scene that the police had to be called. An office window was broken on two different occasions after office hours. Late one night, Boyd’s car window was broken as well.

¶ 4. The incident at issue happened one morning in December of 1999, when a man who was not one of Boyd’s clients walked into the office. Two of Boyd’s employees, including Simpson, were in the back of the office. Simpson heard someone enter the office and went through a set of French doors into the waiting room area where she encountered Earl Washington. She then walked back through the doors and into the receptionist’s area to see if Washington had an appointment.

¶ 5. Washington asked for information regarding an aggravated assault defense, but Simpson told him that their office did not handle that type of case. Washington demanded to see the attorney. After Simpson told him the attorney was not there, he pulled a gun on her. Washington then told Simpson that she was going to come with him.

¶ 6. Simpson alleged that her escape was prevented because Boyd had locked the rear exit door in the receptionist’s area with a keyed deadbolt and had also blocked the door with a copy machine. Washington came through the French doors to his left, down the short length of the hallway, and into the reception area where Simpson stood. Simpson did not call out for help for fear of her co-worker’s safety, nor did she have time to dial 911.

¶ 7. Washington forced Simpson out of the office and into his vehicle which he drove to a levee area close to the Mississippi River. He sexually assaulted Simpson while they were in the car. Simpson then ran from the car, but Washington shot her in the legs and buttocks, preventing her escape. Simpson’s ordeal ended when the police arrived and arrested Washington.

¶ 8. Simpson sued Boyd for compensatory damages, punitive damages, attorney’s fees, and court costs on the bases of premises liability, negligence per se, and legal malpractice.

DISCUSSION

Standard for Summary Judgment

¶ 9. In determining whether the trial court properly granted a motion for summary judgment we conduct a de novo review of the record. Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995). A trial court may grant summary judgment “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 any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). A fact is material if it “tends to resolve any of the issues properly raised by the parties.” Palmer, 656 So.2d at 794.

¶ 10. Furthermore, “[a] motion for summary judgment should be overruled unless the trial court finds, beyond a reasonable doubt, that the plaintiff would be unable to prove any facts to support his claim.” Id. at 796. The trial court is prohibited from trying the issues; it may only determine whether there are issues to be tried. Id.

¶ 11. The evidence must be viewed in the light most favorable to the non-moving party, in this case, Simpson. Id. at 794. If, in this view, the moving party, Boyd, is entitled to a judgment as a matter of law, then summary judgment should be granted in his favor. Otherwise, the motion should be denied. Id.

¶ 12. In this negligence action, Simpson bears the burden of producing evidence sufficient to establish the existence of the conventional tort elements of duty, breach, proximate causation, and damages. Id. Duty and breach of duty, which both involve forseeability, are essential to finding negligence and must be demonstrated first. Donald v. Amoco Prod. Co. 735 So.2d 161, 174 (Miss.1999).

¶ 13. Therefore, Simpson must rebut Boyd’s showing that no genuine issue of material fact exists by producing supportive evidence of significant and probative value. Palmer, 656 So.2d at 794. This supportive evidence must show that the Boyd breached the established standard of care and that such breach was the proximate cause of Simpson’s injury. Id. Finally, summary judgment should be granted with great caution. Id.

Premises Liability

¶ 14. Simpson claims Boyd owed her a duty to provide a safe place to work and a duty to provide for her security. Although not an insurer of an invitee’s safety, a premises owner owes a duty to exercise reasonable care to protect the invitee from reasonably foreseeable injuries at the hands of another. Newell v. S. Jitney Jungle Co., 830 So.2d 621, 623 (Miss.2002). We have stated two ways a plaintiff can prove forseeability for the purposes of establishing a duty in premises liability cases: (1) that the defendant had actual or constructive knowledge of the assailant’s violent nature, or (2) actual or constructive knowledge an atmosphere of violence existed on the premises. Gatewood v. Sampson, 812 So.2d 212, 220 (Miss.2002). Simpson’s complaint attempts to prove foreseeability by establishing that an atmosphere of violence existed.

¶ 15. We have previously decided two eases which involved the “atmosphere of violence” question. See id.; Crain v. Cleveland Lodge 1532, 641 So.2d 1186 (Miss.1994).

¶ 16. In Crain, we affirmed summary judgment in favor of a business owner when a patron suffered injury from attack in the owner’s parking lot. Gatewood, 812 So.2d at 220. We opined that it would be “difficult to say the assault on [the plaintiff in that case] was foreseeable” despite the fact that there was evidence of violent acts within two blocks of the business which included: 110 commercial burglaries, three residential burglaries, eleven assaults, 152 larcenies, one bomb threat, and one indecent exposure. Id. at 221. However, we opted not to decide the issue of foreseeability and instead affirmed summary judgment on the basis of a total lack of evidence regarding proximate causation. Id. Consequently, our language regarding the atmosphere of violence in Crain was dicta and is not controlling in the area of law pertaining to the “atmosphere of violence” theory.

¶ 17. Our holding in Gatewood is controlling in this case. In Gatewood, we affirmed the trial court’s decision to deny a business owner’s motions for judgment notwithstanding the verdict and directed verdict. Id. at 219. The defendant in that case argued that there was not enough evidence for the jury to find that an atmosphere of violence existed at the gas station where the plaintiff was injured. Id. at 220. The evidence showed that sixty violent crimes were reported to the police in the surrounding neighborhood within the three years prior to the attack. Id. Thirty-two of the reported crimes occurred in a nearby shopping center; two incidents occurring in close proximity to the gas station; and at one point, a fight broke out on the premises of the gas station. Id.

¶ 18. We held that evidence of the existence of an atmosphere of violence may include “the overall pattern of criminal activity prior to the event in question that occurred in the general vicinity of the defendant’s business premises, as well as the frequency of criminal activity on the premises.” Id. at 220. Based on the evidence before the trial court, we held that the activity which occurred on and around the premises was enough to create a factual question of whether an atmosphere of violence existed. Id.

¶ 19. Unlike the plaintiff in Gatewood, Simpson has not presented facts sufficient to create a jury issue on the duty prong of a prima facie case of negligence. In order to surmount a motion for summary judgment, Simpson must offer evidence which indicates that incidents in and around the office provided notice to Boyd that precautionary measures were necessary to prevent the occurrence of a crime like the one perpetrated by Washington against Simpson.

¶20. As proof of Boyd’s constructive knowledge of the alleged violent atmosphere, Simpson offers the following: (1) An irate client and an acquaintance of a co-worker separately caused such a stir that the police had to be called; (2) a handful of verbal exchanges between clients and Boyd; and (3) a couple of minor criminal instances over a three-year period.

¶ 21. Finally, Simpson’s expert testified by way of affidavit that it was his opinion that Boyd’s office is located in a high crime area based on: (1) Boyd’s off-the-cuff remark in a deposition that “the entire city of Greenville is described as a high-crime area”; (2) Simpson’s general remarks that the area was a dangerous, high crime area; (3) the in-office incidents referred to above; and (4) Boyd’s decision to install a panic button and security system in the building.

¶ 22. These incidents do establish that employees at Boyd’s office could expect to deal with irate clients, that minor acts of vandalism might happen after hours, that both Simpson and Boyd have made sweeping generalizations about the safety of the surrounding area, and that Boyd was willing to take precautionary measures for any number of security reasons. However, such incidents do not rise to the level of violence sufficient to create a factual question as to whether Boyd was on constructive notice that an act of violence like that committed by Washington would happen in his office.

¶ 23. Simpson has not demonstrated an “overall pattern of criminal activity prior to the event in question that occurred in the general vicinity of the defendant’s business premises” nor has she demonstrated any “frequency of criminal activity on the premises” sufficient to establish an atmosphere of violence. To lower the bar to this level would open the door to nearly per se liability for premises owners.

¶24. Therefore, since Simpson cannot meet the duty prong in her negligence claim, she has not made out a prima facie case for premises liability, and the trial court appropriately granted summary judgment with respect to this claim.

Negligence Per Se

¶25. Simpson next alleges that Boyd can be held liable for negligence per se under the City of Greenville’s Life Safety Code, adopted as part of its Fire Prevention Code. The Code provides:

Every building ... designed for human occupancy shall be provided with exits sufficient to permit the prompt escape of occupants in case of fire or other emergency. The design of exits and other safeguards shall be such that reliance for safety to life in case of fire or other emergency will not depend solely on any single safeguard ... In every building or structure, exits shall be so arranged and maintained so as to provide free and unobstructed egress from all parts of the building or structure at all times when it is occupied.
No lock or fastening shall be installed to prevent free escape from the inside of any building. Two means of egress, as a minimum, shall be provided in every building or structure ... The two means of egress shall be arranged to minimize the possibility that both may be impassable by the same fire or emergency situation.

(emphasis added).

¶ 26. Mississippi recognizes the doctrine of negligence per se, which essentially provides that breach of a statute or ordinance may render the offender liable in tort without proof of lack of due care. Palmer, 656 So.2d at 796. Violation of a statute or ordinance constitutes negligence per se and will support a cause of action in tort where (1) the plaintiff is within the class protected by the statute, and (2) the harm sustained is the type sought to be prevented by the statute. Id. Even if a defendant breaches a statutory duty and is within the class protected by the violation, the plaintiff must still show that the violation proximately caused the injury. Id. The presence of “intentional criminal acts of third parties do not, by definition, relieve [Boyd] of liability,” eliminating the need to consider the issue of proximate causation. Whitehead v. Food Max of Miss. Inc., 163 F.3d 265, 272 (5th Cir.1998) (interpreting Mississippi law)(citing O’Cain v. Harvey Freeman & Sons, Inc., 603 So.2d 824, 830 (Miss.1991)). Moreover, “the question of superceding intervening cause is so inextricably tied to causation, it is difficult to imagine a circumstance where such an issue would not be one for the trier of fact.” O’Cain, 603 So.2d at 830.

¶ 27. The Code was written with the intention of protecting parties from the resulting harm of fires and other emergencies. When confronted by Washington Simpson was faced with an emergency situation, and Simpson alleges that the locked door with a copy machine in front of it blocked her only possible means of escape in violation of the Code. She meets the requirements for the duty and breach prongs based on negligence per se case because: (1) the ordinance applies to buildings “designed for human occupancy” and therefore was meant to protect people in general; and (2) the harm of emergency without means of escape which Simpson allegedly experienced was the type sought tp be prevented by the Code.

¶ 28. However, Boyd mainly argues that there was no possibility that the blocked door could have been the proximate cause of Simpson’s injuries. He contends that her claim for proximate causation fails because (1) there are no facts alleged which, if proven, would show that Simpson even had time to get to the door, and (2) it was unforeseeable to Boyd that Washington would engage in such an extraordinary criminal act.

¶ 29. Under the standard for summary judgment, his first argument is without merit. Boyd argues that it is “wild conjecture to suggest that Plaintiff could have obtained access to the rear exit without being injured or killed.” However, Simpson claims that at one point she was actually backed up to the copier and prevented from escaping during the brief period when Washington walked down the hall. Far from being “wild conjecture,” under the summary judgment standard, such proof indicates that it may have been possible for Simpson to escape at one point and makes it clear that there are material facts in issue, defeating Boyd’s first argument.

¶ 30. In regard to Boyd’s second argument that Washington’s criminal act was unforeseeable so as to warrant summary judgment, this argument is without merit as well. One could conceive arguments for both Boyd and Simpson regarding whether or not, as a result of violating the city’s safety code, Boyd foresaw that he was creating the opportunity for a volatile emergency situation that would one day endanger one of his employees. For precisely this reason, the issue of proximate causation in this case is not appropriate for summary judgment, but must be brought before the trier of fact.

¶31. Because Simpson has brought a claim for negligence per se which has outstanding questions of proximate causation, we reverse the trial court’s decision to grant Boyd’s motion for summary judgment.

Legal Malpractice

¶ 32. The trial court granted summary judgment dismissing Simpson’s case but failed to specifically address her legal malpractice claim. Because the trial court neglected to address this issue, we vacate the trial court’s decision and remand in regard to this claim.

CONCLUSION

¶ 33. We affirm the trial court’s judgment to the extent that it dismissed the premises liability claim. We reverse the judgment to the extent that it dismissed the negligence per se claim, and we remand this case for trial on that issue. We vacate the judgment to the extent that it dismissed the legal malpractice claim, and we remand this case for further proceedings on that claim.

¶ 34. AFFIRMED IN PART; REVERSED AND REMANDED IN PART; AND VACATED AND REMANDED 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.


author: BRIDGES, J„ for the Court.

text:
    Joseph Dewayne WASH, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-00545-COA.
    Court of Appeals of Mississippi.
    March 23, 2004.
    Rehearing Denied June 15, 2004.
    Certiorari Denied Aug. 26, 2004.

      George S. Shaddock, Pascagoula, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   BRIDGES, J„ for the Court.

¶ 1. In March 2002, Joseph Dewayné Wash was indicted for manslaughter by the Jackson County Grand Jury for the death of Kavie Simmons* of Moss Point. In February 2003, a jury found Wash guilty of manslaughter and Circuit Judge Robert P. Krebs sentenced Wash to a term of eighteen years. Wash’s motion for a new trial or, in the alternative, judgement notwithstanding the verdict was denied. Wash now appeals in forma pauper-is on these issues:

STATEMENT OF THE ISSUES

I. DID THE TRIAL COURT ERR IN ALLOWING THE REBUTTAL TESTIMONY OF CHARLES WEATHER-SPOON AFTER THE STATE COMPLETED ITS CASE IN CHIEF?

II. IS THE JURY VERDICT AGAINST THE OVERWHELMING WEIGHT OF CREDIBLE EVIDENCE ADDUCED AT TRIAL AND CONTRARY TO THE LAW OF THIS STATE?

III. IS THE SENTENCE RENDERED IN THIS CASE EXCESSIVE UNDER THE FACTS AND EVIDENCE PRESENTED AT TRIAL AND CONSIDERING THE HISTORY OF THIS DEFENDANT?

FACTS

¶ 2. On the night of September 29, 2001, Wash was involved in an altercation at the 504 Club in Moss Point, Mississippi. The initial scuffle was broken up by Simmons; however, Wash returned to the club later that evening and at approximately 4:00 a.m. Simmons was shot twice from behind. Wash testified that he was at home where he resides with his mother the entire evening but several witnesses identified Wash as the shooter. Five witnesses testified at trial that they were ear and eye witnesses, three of those made photographic and in-court identifications of Wash, testifying that they saw him shoot Simmons.

¶ 3. Charles Weatherspoon was also charged with the shooting of Simmons but the State did not offer his testimony during its case-in-chief against Wash. The State did call Weatherspoon as a rebuttal witness to rebut the testimony offered by Wash. Weatherspoon testified that Wash was indeed at the club that night and not at his mother’s house the entire night.

ANALYSIS

I.DID THE TRIAL COURT ERR IN ALLOWING THE REBUTTAL TESTIMONY OF CHARLES WEATHER-SPOON AFTER THE STATE COMPLETED ITS CASE IN CHIEF?

¶ 4. We consider whether the trial judge abused his discretion in allowing rebuttal testimony. The decision to allow rebuttal evidence or testimony is at the sole discretion of the trial judge. McGaughy v. State, 742 So.2d 1091, 1093(¶ 6) (Miss.1999). In the present case Weather-spoon was indicted for accessory after the fact for the same crime with which Wash was charged. Weatherspoon was listed as a possible witness at trial during discovery but was not called during the prosecution’s case in chief. Weatherspoon was called to rebut the alibi testimony given by Wash.

¶ 5. Wash’s testimony that he was alone and at his mother’s house at the time of the shooting was an alibi that was inconsistent with the notice of alibi witness filed with the State. The State claimed to be prejudiced by this change in alibi theories by the defense and wanted to call Weath-erspoon in rebuttal. The trial judge ruled that Weatherspoon could be called as a rebuttal witness but limited the scope of the rebuttal testimony to whether or not Wash was at the club that night and whether Wash shot Simmons.

¶ 6. Wash argues the State was required to present all relevant evidence as to the defendant’s guilt in its case in chief. Hosford v. State, 525 So.2d 789, 791 (Miss.1988). Wash believes the limiting instructions given regarding Weatherspoon’s testimony were insufficient to correct the error of his testifying. The State, however, argues that the granting of rebuttal testimony is not reversible error unless the defendant is not allowed surrebuttal testimony which was not requested in the case at hand. Myers v. State, 353 So.2d 1364, 1369 (Miss.1978) (citing Gant v. State, 219 Miss. 800, 803, 70 So.2d 28 (1954)).

¶ 7. The testimony of Weatherspoon could arguably be part of the prosecution’s case in chief and part of its rebuttal. In Barnes v. State, 532 So.2d 1231, 1234 (Miss.1988), the court held that “in gray areas, some discretion must be afforded the circuit judge, especially when the defendant is offered and opportunity for sur-rebuttal.” The circuit judge in Wash’s case recognized that this testimony was in a gray area and put limitations on the prosecution so that its examination would not stray into areas that should have been covered in the case in chief.

¶ 8. This Court in Jackson v. State, 840 So.2d 739, 741(¶ 6) (Miss.Ct.App.2003), recently defined the parameters of rebuttal testimony as having three requirements:

1. The testimony and its reception will not consume so much additional time as to give undue weight in practical probative force to the evidence so received;
2. The opposite party would be substantially able to meet the evidence by surrebuttal as if the testimony was offered in chief;
3. The opposite party upon request therefore is given the opportunity to reply by surrebuttal.

The third requirement was not requested and is not at issue in this case. The- first requirement was properly met since the testimony of Weatherspoon only took two pages in the transcript of the trial. The second requirement was also properly met when Wash had an opportunity to cross examine Weatherspoon and was given proper notification of his possible testimony during discovery before trial. For these reasons, we determine that the trial judge did not abuse his discretion in allowing Weatherspoon’s rebuttal testimony.

II. IS THE JURY VERDICT AGAINST THE OVERWHELMING WEIGHT OF CREDIBLE EVIDENCE ADDUCED AT TRIAL AND CONTRARY TO THE LAW OF THIS STATE?

¶ 9. In considering whether a verdict is contrary to the overwhelming weight of evidence, this Court must consider whether or not allowing it to stand would sanction an “unconscionable injustice.” Gossett v. State, 660 So.2d 1285, 1294 (Miss.1995). In reviewing evidence to determine whether it is sufficient to support its verdict this Court will review all evidence to support the verdict with all inferences drawn there from and consider them to be true. Aldridge v. State, 398 So.2d 1308, 1309 (Miss.1981).

¶ 10. The State offered three ear and eye witnesses to the shooting plus the rebuttal testimony of Weatherspoon. The testimony of these four witnesses was only opposed by the testimony of Wash himself the defense’s only witness. There were no specific inconsistencies in the testimony of the State’s witnesses but if there were it is the responsibility of the jury to weigh the credibility and determine the impeachment value of all the testimony given. Jones v. State, 381 So.2d 983, 989 (Miss.1980) (see also Blocker v. State, 809 So.2d 640, 645(¶ 18) (Miss.2002); Collier v. State, 711 So.2d 458, 462-63 (Miss.1998)).

¶ 11. Reviewing the evidence construed in the light most favorable to the verdict and giving consideration for the role of the jury in determining questions of fact and credibility we find that Wash points to nothing that would prove an unconscionable injustice would occur if this verdict were allowed to stand. Therefore, we cannot reverse on this issue.

III. IS THE SENTENCE RENDERED IN THIS CASE EXCESSIVE UNDER THE FACTS AND EVIDENCE PRESENTED AT TRIAL AND CONSIDERING THE HISTORY OF THIS DEFENDANT?

¶ 12. Whether or not the sentence of Wash was appropriate involves the consideration of whether the trial judge abused his discretion when sentencing. “A trial court will not be held in error or held to have abused [its judicial] discretion if the sentence imposed is within the limits fixed by statute.” Johnson v. State, 461 So.2d 1288, 1292 (Miss.1984).

¶ 13. The maximum sentence for manslaughter under Mississippi Code Annotated Sections 97-3-25 and 97-3-35 is twenty years. Wash’s sentence was for eighteen years. Wash claims that the sentence is unduly harsh considering this is his first felony conviction and that he was in a drunken state at the time the crime was committed. He cites Towner v. State, 837 So.2d 221, 227(¶ 21) (Miss.Ct.App.2003), which held that when a first offender defendant is sentenced within the upper levels of authority justification is required or else the sentence should be remanded for reconsideration.

¶ 14. In Wade v. State, 802 So.2d 1023, 1030(¶ 35) (Miss.2001), the supreme court held that “sentencing is within the discretion of the trial court and is not subject to appellate review if it is within the limits prescribed by statute.” Since the sentence given was within the statutory limits we find no abuse of discretion in the sentence given.

¶ 15. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF EIGHTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

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