author: hLEON A. CANNIZZARO JR., Judge.

text:
    In re MEDICAL REVIEW PANEL PROCEEDINGS FOR THE CLAIM OF Allan TINOCO Individually, and on behalf of his Wife, Martha Tinoco and their two minor Children Diana Tinoco and Monica Tinoco v. MEADOWCREST HOSPITAL and Stephen Garcia. Allan Tinoco and Martha Tinoco, Individually and on behalf of their two minor Children, Diana Tinoco and Monica Tinoco v. Maxim Healthcare Services, Inc., and Stephen Garcia. In re Medical Review Panel Proceedings for the Claim of Allan Tinoco Individually, and on Behalf of his Wife, Martha Tinoco and their two minor Children, Diana Tinoco and Monica Tinoco v. Meadowcrest Hospital and Stephen Garcia.
    Nos. 2003-CA-0272, 2003-CA-0273, 2003-CA-0274.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 17, 2003.

      Eileen McCarthy Brown, New Orleans, LA, and Oscar L. Shoenfelt, III, Oscar L. Shoenfelt, III, L.L.C., Baton Rouge, LA, for Plaintiff/Appellees Allan Tinoco, et al.
    Arthur H. Leith, Deborah A. Van Meter and Margaret Diamond, McGlinchey Stafford, PLLC, and Robert E. Kerrigan, Jr., Philip D. Lorio, III, Deutsch, Kerrigan And Stiles, L.L.P., New Orleans, LA, for Appellants Maxim Healthcare, Inc., and Ace American Insurance Company.
    Gregg L. Spyridon, Cynthia C. Branch and Elaine W. Selle, Spyridon Koch & Palermo, L.L.C., Metairie, LA, for Appellants Stephen Garcia and American Casualty Company of Reading, PA.
    Larry M. Roedel, David A. Woolridge, Jr., Roedel, Parsons, Koch, Blanche, Bal-hoff & MeCollister, Baton Rouge, LA, for Intervenor, The Louisiana Patient’s Compensation Fund Oversight Board.
    Peter E. Sperling, Ann Marie Leblanc, Frilot, Partridge, Kohnke and Clements, L.C., New Orleans, LA, for Amicus Curiae, Tenet Health System Hospitals, Inc., d/b/a Meadowcrest.
    (Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR., Judge LEON A. CANNIZZARO, JR.).
   hLEON A. CANNIZZARO JR., Judge.

This case involves the denial of exceptions of prematurity and venue by the trial court in a medical malpractice action. For the reasons set forth below, we remand this case to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

The plaintiff, Allan Tinoco, was injured when he fell from a ladder. He was admitted to Charity Hospital of Louisiana (“Charity”) and diagnosed with a partial dislocation involving the spine, which was treated by an open reduction internal fixation (“ORIF”) procedure. When Mr. Tino-co was discharged from the hospital the next day, he was ambulatory and wearing a C-spine collar.

The day after he was released from Charity, Mr. Tinoco sought treatment at Meadowcrest Hospital (“Meadowcrest”) for a cough. At Meadowcrest, he was diagnosed with bilateral pneumonia and admitted to the hospital. Mr. Tinoco wore a C-spine collar to Meadowcrest and advised the physicians and staff there that he had been discharged from Charity after undergoing an ORIF for a spinal subluxation. Shortly after he was admitted to Meadowcrest, he was examined by a | ^neurosurgeon, who found, after reviewing Mr. Tinoco’s x-rays, that the ORIF was stable.

On December 25, 2000, five days after he was admitted to Meadowcrest for the treatment of pneumonia, Mr. Tinoco was taken out of the bed and placed in a chair pursuant to his doctor’s orders. After he ate lunch while he was sitting in the chair, Mr. Tinoco asked to be returned to his bed.

Stephen Garcia, a registered nurse, attempted to return Mr. Tinoco to his bed, but Mr. Tinoco alleges that he was accidentally dropped onto the floor by Nurse Garcia during the transfer from the chair to the bed. Nurse Garcia requested assistance from other nurses, and with their help, they eventually returned Mr. Tinoco to his bed.

After the alleged incident, Mr. Tinoco immediately began to experience severe weakness in his upper and lower extremities that progressed to numbness and quadriplegia. The next day surgery was performed. After the surgery, Mr. Tinoco’s spinal cord was held in place by plates, wires, and metal screws in certain of his vertebrae. The surgery resulted in only slight neurological improvements. When Mr. Tinoco was released from Meadow-crest more than a month after his admission, he was a quadriplegic, who was- confined to a wheelchair and unable to speak.

Although Mr. Tinoco has regained his ability to speak and some mobility in his extremities, he can only walk for short periods of time with a cane, and the use |3of his hands is severely limited. Also, he has additional medical problems, including bladder, bowel, and sexual dysfunction, pain, and numbness.

Mr. Tinoco and his wife, both individually and on behalf of their minor children, filed a complaint with the Louisiana Patients’ Compensation Fund (the “PCF”). They sought to convene a medical review panel under the Louisiana Medical Malpractice Act, La. R.S. 40:1299.41 et seq. (the “MMA”), to review the claims of malpractice arising from the injury to Mr. Tinoco that occurred when he was allegedly dropped onto the floor by Nurse Garcia. Although the Tinocos filed a complaint with the PCF against both Meadowcrest and Nurse Garcia, they were notified by the PCF that Nurse Garcia was not covered by the MMA and was, therefore, not entitled to the benefits afforded by the MMA, including the right to have the claim against him considered by a medical review panel.

The Tinocos subsequently learned that Nurse Garcia was working at Meadowcrest at the time of Mr. Tinoco’s hospitalization pursuant to an agreement between the Metropolitan Hospital Council of New Orleans (the “Metropolitan Hospital Council”) and Maxim Healthcare Services (“Maxim”), an agency that supplies temporary nurses to hospitals that are members of the council. The Tinocos then filed a medical malpractice lawsuit in Civil District Court for the Parish of Orleans against Nurse Garcia, Maxim, and their respective malpractice insurers. Meadow-crest was not named as a defendant in the lawsuit, because Meadowcrest is covered under the MMA, and, therefore, the medical review panel was first required to consider the claims against the hospital.

LThere are three consolidated lawsuits that have been filed in connection with the incident at Meadowcrest. The first lawsuit was filed by Meadowcrest in the district court, and it requested that the district court allow Meadowcrest to use the court process as a means to conduct discovery in connection with the proceedings before the medical review panel, as permitted by the MMA. La. R.S. 40:1299.47. The second lawsuit is the one filed by the Tino-cos. The third lawsuit is an action by Meadowcrest requesting a declaratory judgment that Nurse Garcia was not an employee of Meadowcrest when the incident involving Mr. Tinoco occurred. All three lawsuits have been consolidated, and the records in all three lawsuits have been lodged in this Court on appeal.

Nurse Garcia filed a dilatory exception of prematurity in the malpractice action brought by the Tinocos. The exception asserted that he was an employee of Mea-dowcrest and that as such he was entitled to be a party to the proceedings before the medical review panel. Therefore, he argued that no lawsuit against him in connection with the malpractice claim could be properly brought until the medical review panel had completed its proceedings. He asked the district court to dismiss the suit against him, because it was premature. Nurse Garcia’s insurer, American Casualty Company of Reading, PA (“American Casualty”) also filed a dilatory exception of prematurity.

Maxim and its insurer, Ace American Insurance Company (“Ace”), filed declina-tory exceptions of improper venue in the malpractice suit. American Casualty filed a similar exception.

In the declaratory judgment action brought by Meadowcrest, Meadowcrest filed a motion for partial summary judgment. Meadowcrest sought a declaratory judgment as to the employment status of Nurse Garcia with respect to the hospital.

|KA hearing was held on the dilatory exceptions of prematurity, the declinatory exceptions of improper venue, and the motion for partial summary judgment. The trial court denied all of the exceptions as well as the motion for partial summary judgment.

Meadowcrest applied to this Court for supervisory writs to review the denial of its motion for partial summary judgment. This Court, however, declined to grant the writ application. In re: Medical Review Panel Proceedings for Claim of Allan Tinoco, 2002-2751, unpub., (La.App.2/3/03). ONurse Garcia, American Casualty, Maxim, and Ace are now appealing the trial court’s denial of the exceptions of prematurity and the exceptions of venue.

STANDARD OF REVIEW

We must determine whether the Tinocos were required to convene a medical review panel to review their claim against Nurse Garcia prior to filing their medical malpractice suit against him. This is a question of law as well as of fact. Therefore, we must conduct a de novo review of this case to determine whether the trial court’s ruling on the dilatory exception of prematurity was legally correct. See, e.g., Cleco Evangeline, LLC v. Louisiana Tax Commission, 2001-2162, p. 3 (La.4/3/02), 813 So.2d 351, 353, where the Louisiana Supreme Court stated with respect to an issue of law being reviewed on appeal that “[w]e review the matter de novo, and render judgment on the record, without deference to the legal conclusions of the tribunals below.” The issue regarding the declinatory exception of venue is also a question of law, so that issue must also be reviewed de novo by this Court. Crawford v. Blue Cross and Blue Shield of La., 2000-2026, p. 3 (La.App. 4 Cir. 12/5/01), 814 So.2d 574, 577; Nitro Gaming, Inc. v. D.I. Foods, Inc., 34,301, p. 4 (La.App. 2 Cir. 11/1/00), 779 So.2d 817, 820.

I «DISCUSSION

Before we can determine whether or not the exceptions of prematurity and venue were properly denied by the trial court, we must determine whether the Tinocos were required to convene a medical review panel to review their claims against Nurse Garcia. To do this, we must determine whether he was employed only by Maxim or by both Meadowcrest and Maxim at the time of the alleged incident involving Mr. Tino-co.

Qualification under the Louisiana Medical Malpractice Act

The MMA limits the malpractice liability of health care providers who qualify under the MMA by filing proof of financial responsibility as required by the MMA and by paying a surcharge to the PCF. As long as a health care provider remains qualified under the MMA, the malpractice liability of the provider and the provider’s insurer is limited to the extent provided by the MMA. Additionally, the MMA provides that “[n]o action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to this Section.” La. R.S. 40:1299.47(B)(l)(a)(i).

A “health care provider” is defined by the MMA to mean, in relevant part, a person licensed by the state to provide health care, and the definition expressly includes a registered nurse. La. R.S. 40:1299.41(A)(1). It is clear that Nurse Garcia, who is a registered nurse, is a health care provider under the MMA. What is not clear is whether he was “qualified” under the MMA such that he is within the scope of the protective provisions of the MMA.

La. R.S. 40:1299.42(A) provides, in relevant part, as follows:

|7To be qualified under the provisions of this Part, a health care provider shall
(1) Cause to be filed with the board proof of financial responsibility as provided by Subsection E of this Section.
(2) Pay the surcharge assessed by this Part on all health care providers according to R.S. 40:1299.44.

Although the Tinocos initially sought to convene a medical review panel to consider the malpractice claims against both Nurse Garcia and Meadowcrest, the PCF notified them that Nurse Garcia was not qualified for coverage under the MMA. Nurse Garcia had not qualified individually for coverage under the MMA. Additionally, Mea-dowcrest had advised the PCF that Nurse Garcia was not an employee of Meadow-crest and was, therefore, not qualified under the MMA by virtue of the coverage Meadowcrest maintains for its employees who are health care providers.

Meadowcrest qualified its health care provider employees under the MMA by evidencing the financial responsibility and by paying the surcharges required by the MMA for qualification. The health care provider employees are qualified as a group, not individually, and the names of Meadowcrest’s qualified employees are not submitted to the PCF. When a person seeks to convene a medical review panel because of medical malpractice that was allegedly committed by a Meadowcrest employee, the PCF requests certification by Meadowcrest of the employment status of the health care provider involved. If Meadowcrest certifies that the health care provider is an employee qualified under the MMA by Meadowcrest, the employee is entitled to coverage under the MMA. Otherwise, if the provider has not otherwise qualified under the MMA, the provider is not entitled to the MMA’s benefits.

lain the case of Nurse Garcia, Meadow-crest advised the PCF that Nurse Garcia was not an employee of Meadowcrest when Mr. Tinoco was allegedly injured. Nurse Garcia, however, claims that he was an employee of Meadowcrest when Mr. Tino-co was hospitalized and should, therefore, be a qualified health care provider entitled to the benefits of the MMA.

Based on the PCF’s determination that Nurse Garcia was not qualified under the MMA as an employee of Meadowcrest, the Tinocos did not convene a medical review panel prior to filing their malpractice suit against Nurse Garcia and Maxim. Nurse Garcia and American Casualty filed a dilatory exception of prematurity under La.C.C.P. art. 926, which is the proper procedural mechanism for a qualified health care provider under the MMA to invoke when a medical review panel should have been convened but was not. Spradlin v. Acadia-St. Landry Medical Foundation, 98-1977, p. 4 (La.2/29/00), 758 So.2d 116, 119.

Nurse Garcia’s Employment Status

It is uncontested that at the time of the incident allegedly causing injury to Mr. Tinoco, Nurse Garcia was employed by Maxim, a health care employment agency engaged in the business of providing registered nurses to hospitals for temporary assignments. It is also uncontested that when the alleged incident occurred, Nurse Garcia was working at Meadowcrest on a temporary assignment as the nurse in charge of Mr.Tinoco’s care. What is contested is Nurse Garcia’s employment status with respect to Meadowcrest.

In Marchetta ex rel. Marchetta v. CPC of Louisiana, Inc., 99-0485 (La.App. 4 Cir. 3/22/00), 759 So.2d 151, a medical malpractice case, this Court stated that “[t]he ‘single most important factor’ for determining whether an employer-employee relationship exists is ‘the right of the employer to control the work of the |9employee.’ ” 99-0485, p. 6, 759 So.2d at 155 (citing Roberts v. State of Louisiana, 404 So.2d 1221, 1225 (La.1981)). Therefore, we must determine whether Meadowcrest had the right to control Nurse Garcia’s work.

The Tinocos argue that Nurse Garcia was not an employee of Meadowcrest based on a number of factors. They argue that because Nurse Garcia was on Maxim’s payroll, maintained his own medical malpractice insurance, and did not consider himself a Meadowcrest employee, Nurse Garcia was not an employee of Meadow-crest. Additionally, the contract between Maxim and the Metropolitan Hospital Council, pursuant to which Maxim provided Nurse Garcia’s services to Meadow-crest, expressly stated that nothing in the contract should be construed to create an “employer/employee” relationship. The Tinocos also argue that Nurse Garcia wore a uniform that differed from the uniform worn by the nurses who were permanently employed by Meadowcrest and displayed a badge identifying him as a Maxim employee. Finally, Nurse Garcia was required to furnish his own stethoscope, pencils, pens, and scissors.

Nurse Garcia, however, argues that he was a Meadowcrest employee. He bases his argument on the fact that he was performing nursing duties caring for a Mea-dowcrest patient at Meadowcrest when the alleged injury to Mr. Tinoco occurred. Further, Meadowcrest scheduled the times he worked, provided most of the instruments and tools he needed to perform nursing duties, and, based on the hours submitted on timesheets approved by his supervising nurse at Meadowcrest, provided the funds to pay Nurse Garcia.

ImCourts in this state have considered the employment status of health care providers whose services are used by hospitals. In Campbell v. Hospital Service District No.l, Caldwell Parish, 33,874 (La.App. 2 Cir. 10/4/00), 768 So.2d 803, the Court of Appeal of Louisiana, Second Circuit, stated as follows:

Of primary concern is whether the principal retained the right to control the work. The important question is whether, from the nature of the relationship, the right to do so exists, not whether supervision and control was [sic] actually exercised. The distinction between employee and independent contractor status is a factual determination to be decided on a case-by-case basis.

33,874, p. 4-5, 768 So.2d at 807 (citations omitted).

The Campbell case was a medical malpractice case involving an emergency room physician provided to the hospital through a physician staffing service. The Second Circuit considered whether the physician was a hospital employee or an independent contractor. The Court stated that “[w]hether an emergency room physician is an employee or an independent contractor is a factual issue turning on the control exercised by the hospital over his activities.” 38,874, p. 5, 768 So.2d at 807.

The Second Circuit found that the existence of an independent contractor agreement was not necessarily dispositive of the issue of whether an emergency room doctor is or is not a hospital employee. In the Campbell case there was a contract between the hospital and a physician staffing service that expressly stated that the emergency room physicians that the service provided would accept the duties as determined by the medical staff of the hospital and abide by the rules and regulations of the hospital’s medical staff. The contract further stated that the emergency room physicians would perform medical services as independent Incontractors under the general supervision of the hospital and its medical staff. Additionally, the physician staffing service assigned to the hospital the right to bill and collect the fees for the services provided by the emergency room physicians furnished pursuant to the staffing contract. Based on the facts in the Campbell case, the Court reversed a summary judgment in favor of the hospital and remanded the case for a trial on the merits, including the issue of the emergency room physician’s employment status.

In Powell v. Fuentes, 34,666 (La.App. 2 Cir. 5/9/01), 786 So.2d 277, the Second Circuit reiterated that “the existence of an independent contractor agreement is not necessarily dispositive of the issue of whether a doctor is an independent contractor, as opposed to an employee of a hospital, and courts will inquire into the real nature of the relationship and the degree of control exercised ... by the hospital over the doctor’s activities.” 34,-666, p. 9, 786 So.2d at 283. In the Powell case the Court reversed a summary judgment in favor of the hospital in a malpractice case, because the Court found that there was a genuine issue of material fact regarding the amount of control the hospital had over the emergency room doctor who allegedly committed medical malpractice.

The Court of Appeal of Louisiana, Third Circuit, has also considered the issue of whether an emergency room physician is an employee of the hospital where the physician provides medical services. In Arrington v. Galen-Med, Inc., 2002-987 (La.App. 3 Cir. 2/5/03), 838 So.2d 895, the Third Circuit adopted the position of the Second Circuit in the Powell case that the existence of a contract stating that an emergency room physician is an independent contractor is not dispositive with respect to the employment status of an emergency room physician. Quoting the Powell case, the Third Circuit in the Ar-rington case stated as follows:

|12We find this situation — the providing of emergency services — distinguishable from that of a surgeon or other doctor holding hospital privileges contracting with a patient, where the physician is typically held to be an independent contractor. This is because the patient is seeking treatment through a hospital emergency room with no choice as to treating physician. In fact, other states have long questioned the propriety of permitting hospitals to shield themselves from liability by labeling their emergency room physicians as “independent contractors,” imposing liability upon hospitals despite independent contractor relationships erected to shield them from liability. This is because an apparent, or ostensible agency is created by a hospital “holding itself out” as a full service facility and creating the image that its physicians are employees of the hospital and not independent contractors ....

2002-987, p. 7, 838 So.2d at 899. The Third Circuit in Arrington held that the emergency room physician was an employee of the hospital.

This Court has also considered the status of an emergency room physician as a hospital employee. Suhor v. Medina, 421 So.2d 271 (La.App. 4th Cir.1982) was a medical malpractice case in which recovery was sought against a hospital due to the negligence of an emergency room physician. There was a written contract stating that the physician was an independent contractor. The contract further stated that the hospital did not have control over the physician. This Court considered the fact that social security was not withheld from the physician’s salary and the fact that he was required to maintain his own malpractice insurance, but found neither factor persuasive in determining whether he was an independent contractor or an employee of the hospital where he worked.

This Court stated in Suhor that “[t]he hospital’s and physician’s self-serving designation of ‘independent contractor’ is a transparent shield designed solely to circumvent the law.” 421 So.2d at 274. This Court concluded that “[t]he totality of these facts mandates that Dr. Robinson be categorized as an employee of Mercy | ^Hospital which is answerable for any damages which occur in the exercise of his functions.” Id. Cf., Badeaux v. East Jefferson General Hospital, 364 So.2d 1348 (La.App. 4th Cir.1978), where this Court held in a medical malpractice case that an affidavit stating that a hospital did not supervise an emergency room physician and a contract stating that the physician was an independent contractor were sufficient to support summary judgment in favor of the hospital where there were no countervailing affidavits filed.

Finally, the Louisiana Supreme Court has considered the status of emergency room physicians. In Hastings v. Baton Rouge General Hospital, 498 So.2d 713 (La.1986), the Supreme Court held that the trial court erred in directing a verdict in favor of the hospital in a medical malpractice case involving a surgeon and an emergency room physician. With respect to the emergency room physician, the Supreme Court cited the Suhor case for the proposition that whether an emergency room physician is an employee or an independent contractor is a factual issue turning on the control exercised by the hospital over the physician’s activities. Cf., Tabor v. Doctors Memorial Hospital, 563 So.2d 233 (La.1990), where the Supreme Court found, based on the record in that case, that an emergency room physician was not an employee of the hospital where he worked; instead, the Supreme Court found that he was an employee of an emergency physicians group.

Although we have found no cases involving the employment status of nurses who work at hospitals under agency contracts, we find that the cases involving the employment status of emergency room physicians are instructive in the instant case. If emergency room physicians can be deemed to be employees of a hospital despite contracts providing that they are independent contractors, then nurses luworking under contract with a hospital can clearly be deemed to be employees, because nurses have less autonomy than physicians. A nurse is not an independent practitioner and is always supervised in a hospital. An agency nurse working in a hospital works under the supervision of a charge nurse, and the agency nurse must follow a physi-dan’s orders as well as comply with the hospital’s rules and policies. This Court has articulated the responsibility a hospital has for the actions of its nurses by stating that “[a] hospital is responsible for the negligence of its nurses under the respon-deat superior doctrine.” In re Arthemise Triss, 2001-1921, p. 18 (La.App. 4 Cir. 6/5/02), 820 So.2d 1204, 1212. The hospital is presumed to have control over the actions of its nurses, whether they are agency nurses or regular hospital employees.

Based on the rationale of the Suhor case, we do not find the fact that Maxim, instead of Meadowcrest, paid Nurse Garcia and the payroll taxes owed on his salary to be determinative of whether he was an employee of Meadowcrest. Also, based on the Suhor case, we do not find the fact that Nurse Garcia maintained his own malpractice insurance to be dispositive of his employment status. Similarly, based on the rationale of the Campbell, Powell, and Arrington cases, we do not find the contract between Maxim and the Metropolitan Hospital Council, providing that nurses supplied to hospitals were not deemed to be in an “employer/employee” relationship with the hospitals where they worked, to be dispositive of Nurse Garcia’s employment status.

In the instant case, Nurse Garcia worked on the premises at Meadowcrest, cared for the hospital’s patients, and reported to the charge nurse who serves in a supervisory capacity with respect to all nurses, both temporary nurses and permanent employees. Although Meadowcrest could not terminate Nurse Garcia’s | ^employment by “firing” him, Meadow-crest could certainly relieve him from his nursing duties at the hospital and prohibit him from returning to work there. Also, the supervision of Nurse Garcia at Mea-dowcrest was the same as for the hospital’s permanent nurses.

From the standpoint of the hospital patient, there is every expectation that the nursing staff is supervised and controlled by the hospital. The wearing of an identification badge with an agency name or a different style of uniform from the permanent nursing staff by an agency nurse is of no moment to a seriously ill patient in need of nursing care. The patient assumes that all nurses in the hospital are employees of the hospital selected for their competence in nursing care. Unlike physicians with staff privileges at hospitals, the nurses do not send patients individual bills, do not determine the treatment the patients receive, and do not have offices outside of the hospital from which the patients can receive medical treatment. The patient has a choice in choosing a physician, but there is no choice in choosing the nurse who takes care of the patient in a hospital. The patient cannot terminate the nurse’s services, but the patient can terminate a physician’s services.

Based on the facts in the instant case, we find that Nurse Garcia was working under the supervision and control of Meadowcrest at the time of the incident involving the alleged injury to Mr. Tinoco. Therefore, Nurse Garcia was an employee of Meadowcrest at that time.

Dual Employers

In Morgan v. ABC Manufacturer, 97-0956 (La.5/1/98), 710 So.2d 1077, the Louisiana Supreme Court considered whether an employer in the business of hiring |1fiout temporary employees to other businesses is liable for the tortious conduct of its employees that occurs while they are working at their temporary jobs. The Supreme Court determined that the general employer, who hired out temporary workers to work for others, and the special employer, who supervised the temporary employees it hired, were both liable for the torts of the employees. The general employer and the special employer were dual employers.

We find that a dual employer situation existed in the instant case. Therefore, Nurse Garcia was employed by both Maxim and Meadowcrest at the time of the incident involving Mr. Tinoco, and both Maxim and Meadowcrest are responsible for any malpractice committed by Nurse Garcia while he was working at Meadow-crest as an agency nurse.

Exception of Prematurity

Although we have determined that Nurse Garcia was an employee of both Meadowcrest and Maxim, there is insufficient evidence in the record for us to determine whether or not the exception of prematurity was properly denied. There is nothing in the record that definitively shows that Meadowcrest paid the surcharge necessary to qualify Nurse Garcia under the MMA. There is, however, an affidavit by Cheryl Jackson, the malpractice insurance director for the PCF, which states that if there is a judicial determination that Nurse Garcia was an employee of Meadowcrest or an employee of both Mea-dowcrest and Maxim when the alleged injury to Mr. Tinoco occurred, the PCF will issue a certificate of enrollment stating that Nurse Garcia is qualified with the PCF pursuant to the MMA. This would entitle him to have the Tinocos’ claim against him heard by a medical review panel before a court considers the claim.

17In Remet v. Martin, 97-0895 (La.App. 4 Cir. 12/10/97), 705 So.2d 1182, this Court stated with respect to the MMA that “[t]he statute does not automatically grant ‘qualified’ health care provider status to all employees of qualified health care providers.” 97-0895, p. 8-9, 705 So.2d at 1136. We, therefore, remand this case to the trial court for further proceedings on the exceptions of prematurity. The trial court is instructed to grant the exceptions of prematurity if sufficient evidence is introduced into the record showing that Nurse Garcia has been certified by the PCF as a qualified health care provider.

Exception of Venue

Because we have not reversed the trial court’s dismissal of the exceptions of prematurity, venue in Orleans Parish is currently proper, since Nurse Garcia is a resident of Orleans Parish. Therefore, we will not rule on the dismissal of the exceptions of venue, because it is premature for us to do so.

CONCLUSION

Based on the foregoing discussion, this case is remanded to the trial court for further proceedings in accordance with this Court’s opinion. If sufficient evidence is presented to the trial court to show that Nurse Garcia is a qualified health care provider under the MMA, who is entitled to a hearing before a medical review panel, the exceptions of prematurity should be granted.

REMANDED.

      . Meadowcrest paid Maxim a fee based on the number of hours Nurse Garcia worked. Maxim used a portion of these funds to pay Nurse Garcia for his services at Meadowcrest. Maxim also paid all payroll taxes for Nurse Garcia from the fee paid for Nurse Garcia’s services.

      . We note that this is not the case with an emergency room physician, whose position with a hospital is often similar to that of an agency nurse, as discussed above.


source: Caselaw Access Project

author: DIAZ, J., for the Court.

license: Public Domain

text:
    Heather Nicole FRANKLIN, Fred M. Harrell, Jr. and Paul Snow v. Jonathan Paul FRANKLIN, a Minor, by and Through His Natural Mother, Cathy PHILLIPS, and Bill Waller, Sr.
    No. 2001-CA-01218-SCT.
    Supreme Court of Mississippi.
    Feb. 13, 2003

      Frank W. Trapp, Jackson, Fred M. Harrell, Jr., Brandon, Paul Snow, Jackson, attorneys for appellants.
    Bill Waller, Sr., Jackson, attorney for appellees.
    Before SMITH, P.J., COBB and DIAZ, JJ.
   DIAZ, J., for the Court.

¶ 1. On the Court’s own motion, the original opinion is withdrawn, and this opinion is substituted therefor.

¶ 2. At issue in this case is how attorneys’ fees in a wrongful death suit should be distributed. Jonathan Paul Franklin (Jonathan) brought suit on July 13, 1999, for the wrongful death of his father. He was represented by attorney Bill Waller, Sr. (Waller). On July 20, 1999, Jonathan’s sister, Heather Nicole Franklin (Heather), also brought suit for the same wrongful death. She was represented by attorneys Fred M. Harrell, Jr. (Harrell) and Paul Snow (Snow). Circuit Court Judge John T. Kitchens ordered the cases consolidated. His order provided that in the event of recovery, the proceeds would be distributed equally among the heirs, and their attorneys would be compensated according to their existing contracts with their respective clients. Pursuant to the order, the attorneys worked together preparing for trial for over a year and a half, with Snow and Harrell doing most of the work. The case settled on the day before trial. Thereafter, Waller sought all the attorney fees, claiming entitlement based upon the fact that he filed the first wrongful death lawsuit. Judge Kitchens recused himself, and Judge Joe N. Pigott was appointed. Judge Pigott vacated Judge Kitchens's order and awarded all attorney fees in the Franklin case to Waller.

¶ 3. Snow and Harrell’s Motion for New Trial was denied July 23, 2001. Aggrieved by the lower court’s ruling, Snow and Harrell appeal, presenting the Court with the following issues:

I. WHETHER THE SUCCESSOR JUDGE ERRED IN REFUSING TO AWARD ATTORNEY FEES TO SNOW AND HARRELL WHERE THEY WERE THE ONLY ATTORNEYS WHOSE CONTRACT WAS APPROVED PRIOR TO THE INSTITUTION OF SUIT AND WHERE THEY DID A MAJORITY OF THE WORK ON THE WRONGFUL DEATH SUIT.
II. WHETHER THERE WAS AN IMPLIED CONTRACT BETWEEN WALLER AND SNOW AND HARRELL FOR THE PAYMENT OF ATTORNEY FEES.
III. WHETHER JUDGE PIGOTT ERRED IN VACATING THE NOVEMBER 1999 ORDER OF JUDGE KITCHENS AFTER SNOW AND HARRELL RELIED ON IT IN PREPARING THE CASE FOR TRIAL.
IV. WHETHER THE FACT THAT WALLER HAD NO CONTRACT WITH HEATHER FRANKLIN MEANS HE IS NOT ENTITLED TO ATTORNEY FEES FROM HER.

FACTS

¶ 4. On July 9,1999, Johnny Ray Franklin (Franklin) was killed in an automobile accident. Franklin had two heirs, a minor son named Jonathan, and an adult daughter named Heather. Jonathan, through his mother Cathy Phillips, filed a wrongful death suit on July 13, 1999. The suit was filed solely on Jonathan’s behalf and did not purport to represent the interests of any other heirs. At the time, Jonathan was represented by William Wright (Wright). Shortly after the lawsuit was filed, however, Wright was replaced as counsel by Waller. Neither Wright nor Waller had their contingency fee contracts approved by the chancery court before filing suit. Neither obtained the approval of the chancery court to file a wrongful death suit on behalf of the estate; nor did they timely open a guardianship for Jonathan.

¶ 5. Also killed in the crash was a passenger, Timothy Hawkins (Hawkins). His heirs included both parents and four siblings, all of whom were represented by Snow and Harrell. On March 16, 2000, the trial judge, Honorable John T. Kitchens, ordered that suit filed on behalf of Hawkins’s heirs be consolidated with the suit for Franklin’s heirs. The Hawkins case went to trial in August, 2000, and, after the jury awarded $470,000 in compensatory damages, the Hawkins case settled for $700,000 during the punitive damages phase of the trial.

¶ 6. On July 20, 1999, Heather opened an estate in the chancery court and was named administratrix. The chancery court approved a contingency fee contract with Harrell to represent Heather individually and as administratrix of the estate. Harrell later associated Snow. The chancery court also approved the filing of a wrongful death lawsuit for all the heirs, which was filed that same day.

¶ 7. On November 22,1999, Judge Kitchens ordered that Heather join in the lawsuit filed by Jonathan. In his order, Judge Kitchens stated that the attorneys for each heir should prosecute the case together and, in the event of a recovery, attorney fees would be determined according to the contract signed between each heir and his/her respective counsel. Waller’s Motion to Reconsider was denied. In rebanee on the November 1999 order, Snow and Harrell worked diligently to prepare the case for trial, doing far more work on the case than Waller. On August 7, 2000, the day trial was to begin, the case settled for $1,750,000. Each heir received one-half of the settlement.

¶ 8. After settlement, Waller sought to have the circuit court award him all the attorney fees. Waller argued that he should receive 100% of the Franklin attorney fees because he filed the first wrongful death suit, and under the wrongful death statute there can only be one lawsuit. He contended that any other lawsuits are therefore immaterial to the case first filed and that the first lawsuit is to recover on behalf of all of the heirs. Snow and Har-reb were of the opinion that they should receive 100% of the attorney fees in the Hawkins case because they represented all of the heirs and 50% of the fees in the Frankhn case because they represented one of the two children.

¶ 9. On December 2, 2000, Waller filed a motion requesting Judge Kitchens to again reconsider his November 1999 order regarding attorney fee splitting. The motion was denied, and final judgment was entered on April 23, 2001. In the final judgment, however, Judge Kitchens retained jurisdiction “to the extent required to resolve the pending issues relating to the apportionment of attorney fees and expenses among the various counsel for plaintiffs.”

¶ 10. On December 13, 2000, Waller filed a motion to recuse Judge Kitchens. Waller contended that the November 1999 order indicated that Judge Kitchens was biased in favor of Snow and Harrell. Following a hearing on January 25, 2001, Judge Kitchens, while denying any reason to doubt his impartiality, voluntarily re-cused himself. Thereafter, Special Judge Joe Pigott was appointed.

¶ 11. On June 5, 2001, Judge Pigott vacated the November 1999 order. Judge Pigott held that while Heather had a right to join in the lawsuit filed by Jonathan, the control of the suit was in the hands of Jonathan and his attorneys since his suit was filed first. Since all heirs-at-law interests were represented in this one lawsuit, only one attorney’s fee was payable out of the recovery. Judge Pigott also ruled, “[t]he Circuit Court had no authority to order attorneys Snow and Harrell into the Franklin case and no authority to adjudicate the division of attorney’s fees prospectively before recovery. Circuit Courts should not interject attorneys into another attorney’s cases and require a division of fees.” Judge Pigott awarded all attorney fees from the Franklin settlement in the amount of $859,326.50 to Waller; including $430,000 in attorney fees provided for in Heather’s contract with Snow and Harrell. Waller was allowed $10,500 as reimbursement for expenses. Snow and Harrell were allowed $20,847 for expenses. They allege total expenses of $41,694.

¶ 12. Harrell and Snow’s Motion for New Trial was denied July 23, 2001. They filed their Notice of Appeal on August 22, 2001.

DISCUSSION

¶ 13. The standard of review regarding attorney fees is the abuse of discretion standard. Mauck v. Columbus Hotel Co., 741 So.2d 259, 269 (Miss.1999). However, whether wrongful death beneficiaries should be allowed to retain and pay their own counsel out of their portion of any recovery is a question of law, as it necessarily involves interpretation of the wrongful death statute. For questions of law, our standard of review is de novo. Smith v. Dorsey, 599 So.2d 529, 533 (Miss.1992). Thus, we sit in the same position as did the trial court.

I. WHETHER JUDGE PIGOTT ERRED IN REFUSING TO AWARD ATTORNEY FEES TO SNOW AND HARRELL WHERE THEY WERE THE ONLY ATTORNEYS WHOSE CONTRACT WAS APPROVED PRIOR TO THE INSTITUTION OF SUIT AND WHERE THEY DID A MAJORITY OF THE WORK ON THE WRONGFUL DEATH SUIT.

¶ 14. Mississippi’s wrongful death statute, Miss Code Ann. § 11-7-13 (Supp.2002), created a cause of action unknown to the common law. The wrongful death action is not part of the estate of the deceased. Partyka v. Yazoo Dev. Corp., 376 So.2d 646, 650 (Miss.1979) (citing Byars v. Austin, 218 So.2d 11, 15 (Miss.1969)). Only those individuals listed in the wrongful death statute may bring this independent cause of action. Partyka, 376 So.2d at 650 (citing Hasson Grocery Co. v. Cook, 196 Miss. 452, 459, 17 So.2d 791 (1944)). On appellate review, we strictly construe Mississippi’s wrongful death statute. Smith v. Garrett, 287 So.2d 258, 260 (Miss.1973) (collecting authorities).

¶ 15. The wrongful death statute recites a list of those persons who may act as the named plaintiff in an action but it does not give preference to one potential plaintiff over another. The only limitation in the statute is that, no matter which of the multiple persons authorized to bring the suit actually does so, “there shall be but one (1) suit for the same death which shall ensue for the benefit of all parties concerned_” Miss.Code. Ann. § 11-7-13 (Supp.2002) (italics added). A basic tenet of statutory construction is that “shall” is mandatory and “may” is discretionary. Planters Bank & Trust Co. v. Sklar, 555 So.2d 1024, 1027 (Miss.1990); Murphy v. State, 253 Miss. 644, 649, 178 So.2d 692 (1965). Thus, in most wrongful death cases, the first wrongful death lawsuit filed represents the interests of all the wrongful death heirs, to the exclusion of any subsequently filed lawsuits. Because there may be but one lawsuit filed in any wrongful death case, this “first-to-file” rule gives preference to the first case filed. However, it does not prohibit the court from ordering multiple wrongful death suits to be joined. Mobile, Jackson & Kansas City R.R. v. Hicks, 91 Miss. 273, 46 So. 360, 397 (1908). Indeed, the statute explicitly allows all interested parties to join in the suit. Miss.Code Ann. § 11-7-13. See also M.R.C.P. 20. Because the two Franklin heirs each brought a wrongful death lawsuit for the same death, they obviously ran afoul of the statute. Thus, Judge Kitchens’s November 1999 order combining Heather and Jonathan’s wrongful death cases was proper. The question remains whether his apportionment of attorney fees between the parties according to their pre-existing contracts and allowing Snow and Harrell to participate in the joined lawsuit was also proper or, as Judge Pigott held, in error.

¶ 16. Judge Pigott’s award on June 5, 2001, of all the attorney fees to Waller came a year and a half after Judge Kitchens’s order allowing Snow and Harrell to participate in the lawsuit. Judge Pigott held that, though Heather had a right to participate in the wrongful death action, control of the suit was in the hands of Jonathan and his attorneys since his suit was filed first. Snow and Harrell argue this was error. They offer proof of the substantial amount of time and work expended by them in preparing the Franklin case for trial and contrast it to the de minimus'amount they claim was expended by Waller. They claim that under Mississippi law, an attorney whose efforts contribute to obtaining a settlement or in enhancing a settlement is entitled to attorney fees. They also argue that Waller’s claim of entitlement based on filing first is not determinative and ask the Court to give priority to their contract because it was approved by the chancery court.

¶ 17. The Court of Appeals has held that a chancellor erred in awarding all attorney fees to an attorney who represented an illegitimate child found to be the decedent’s sole wrongful death beneficiary and thereby denying fees to an attorney who filed the wrongful death suit, acting in good faith and with due diligence, when the former attorney did nothing to obtain settlement, but only represented the illegitimate child’s interest. In re Estate of Brewer, 755 So.2d 1108 (Miss.Ct.App.1999). “[I]t makes no sense to deprive the attorney ... of any compensation and instead award the full contractual fee to another attorney who did nothing in pursuit of the claim ... Because we find [the attorney’s] right of compensation is so clear as a matter of law, we reverse and render on the issue.” Id. at 1115. The court directed that the attorney’s “court sanctioned and fully performed contract be honored.” Id. Snow and Harrell rely heavily on Brewer to support their position that an attorney who contributes to an award should himself be awarded. Waller argues that the Brewer case is distinguishable from the case sub judice in that only one wrongful death lawsuit was filed therein and the attorney ultimately awarded compensation was also the attorney who initially filed the lawsuit. However, Brewer nonetheless stands for the proposition that an attorney who substantially contributes to a wrongful death settlement should be compensated for his time and effort.

¶ 18. There is no question that Snow and Harrell performed under their contract and their work benefitted both their clients (Heather and the estate) and Waller’s client (Jonathan) by enhancing the settlement value of the lawsuit. Snow’s office investigated the accident by obtaining photographs and interviewing witnesses. He sent out a 60 page settlement package. He researched the types of experts needed and ultimately hired an accident reconstruction expert and an expert on hedonic damages. Waller did not attend all of the depositions, including that of the accident reconstruction expert. In the depositions he did attend, Snow asked 91% of the questions and Waller asked only 9%. Snow propounded written discovery, answered discovery and filed numerous motions to compel. He also filed five briefs, including responses to two summary judgment motions. The only written discovery filed by Waller was propounded to a defendant who was later dropped from the lawsuit. Snow prepared and filed 89% of the plaintiffs’ pleadings while Waller’s office filed 11%. Snow and Harrell conducted a mock trial and made a videotape on the issue of liability for use at trial. Snow had expenses of $41,694; Waller’s expenses were $10,500.

¶ 19. Waller does not deny that Snow and Harrell did most of the work. Rather, he argues that the amount of work done by Snow and Harrell was unnecessary because it was a “slam dunk” case. Waller argues that

there was no benefit, direct or indirect, received from the activities of Snow and Harrell since liability was admitted and the other matters dealt primarily with attempting to elevate the case from actual damages to punitive damages. The Franklin case was settled based on actual damages claimed and the rather outrageous activities of Snow and Harrell in attempting to establish punitive damages were of no benefit to the Franklin settlement whatsoever.

¶ 20. Conversely, Snow and Harrell argue that the defendants did not admit liability until the day before trial. Until that time, they insist, liability was vigorously contested. They point to the testimony of defense counsel John Toney, where he admits that until the day before trial in the Hawkins’s case, liability was vigorously contested. Since the issue of liability was the same in Franklin as it was in Hawkins, Snow and Harrell argue this statement demonstrates the defense’s denial of liability in Franklin. They further claim that it was only their vigorous preparation that compelled this last second concession.

¶ 21. Snow and Harrell also argue that the case was not as open and shut as Waller alleges and that a punitive damage award was not outrageous as Waller claimed, but a very real possibility. Their investigation and discovery had revealed that punitive damages might be available based upon the defendant’s gross negligence. Both drivers of the tractor trailers that caused the accident which killed Franklin and Hawkins had applied for protective orders and refused to answer discovery, presumably because of their potential personal liability. Snow and Harrell filed motions to compel and responded to the motions for a protective order, and were able to force the drivers to be deposed and to answer discovery. Waller participated in none of this. Moreover, only Snow responded to and prevailed against defendant’s motion for summary judgment with regard to punitive damages.

¶ 22. Witness Lance Stevens testified that if all of Snow’s time had been spent on liability issues, the case would have indeed been overworked. However, he explained that liability was not the only issue. He testified that there was going to be a very serious dispute as to who among the defendants had what percentage of liability and where the punitive damages would lie. Stevens further testified that the fair market value of the cases would have been much less had the possibility of a punitive damage award not existed, and that Snow’s expenses in the case were not unreasonable. Interestingly, after the judge in the Hawkins case ordered that the jury could consider punitive damages, that case settled for $250,000 more than the compensatory award. Since the evidence of liability was the same in both cases, the trial court’s decision in Hawkins regarding punitive damages illustrates that the effort by Snow in establishing the gross negligence of the defendants was not a waste of time. This possibility of a large punitive damages award was no doubt a factor in settlement, and, combined with the large amount of other work contributed by Snow and Harrell, demonstrates that the contributions of Snow and Harrell conferred a benefit upon all the heirs in the case. As Brewer makes clear, an attorney whose efforts contribute to obtaining a settlement or in enhancing a settlement is entitled to attorney fees.

¶ 23. Waller points out that the Hawkins and Franklin cases were consolidated for the purpose of discovery and events leading up to the trial. He contends there is no way for Snow and Harrell to separate their trial preparation for Hawkins from that of Franklin or vise versa. Moreover, he argues, the evidence fails to address the question of whether that work was also necessary and required to prosecute and engage in a lengthy jury trial in the Hawkins case. Pursuant to Judge Pigott’s order, Snow and Harrell received 100% of the attorney fees in the Hawkins case, thus, Waller argues, they have been fully compensated for their time and effort.

¶ 24. This argument is not well taken since Waller is requesting 100% of the fees from a case in which it is uncontradicted that he only did 10% of the work, as well as the untenable position that he should somehow be entitled to a portion of the fees from the Hawkins case. In any event, Snow and Harrell received attorney fees in the Hawkins case because they had a contract with Hawkins’s heirs. Similarly, Snow and Harrell have a contract with Heather Franklin. Both Hawkins’s heirs and Heather Franklin chose to be represented by Snow and Harrell; neither chose to be represented by Waller.

¶25. Nonetheless, Waller’s argument that Snow and Harrell’s work on the Franklin case was only a result of their work on the Hawkins case has some appeal. Its force is diminished, however, by the testimony of defense counsel John To-ney. Toney testified that the facts in the two cases were almost identical, thus most of the discovery and investigation was necessary for both cases. However, Toney testified that in the defense’s opinion the damages issues in the two cases were different. They believed the Franklin case was worth more than Hawkins because a minor child was left fatherless in Franklin, and Snow’s work on the Franklin heir’s damage claim differed from that of the Hawkins heirs.

¶26. Waller’s primary contention for entitlement to all the attorney fees is that he is counsel of record representing all heirs, because he filed the first wrongful death lawsuit. He argues that strict construction of the wrongful death statute, Miss.Code Ann. § 11-7-13, is required and one suit for the same death is the focus of the legal issues before the Court, citing Pannell v. Guess, 671 So.2d 1310 (Miss.1996) and Smith v. Garrett, 287 So.2d 258 (Miss.1973). He contends that the first lawsuit filed by a legal representative excludes any other lawsuits regardless of the circumstances as to the second lawsuit and regardless of any Order consolidating the second lawsuit with the first lawsuit for the purposes of trial. He argues that the only one lawsuit provision of the wrongful death statute has been upheld numerous times and is referred to as the rule “first in time, first in right.” See Southern Pine Elec. Power Ass’n v. Denson, 214 Miss. 397, 57 So.2d 859 (1952); Miss. Power & Light Co. v. Smith, 169 Miss. 447, 153 So. 376 (1934); J.J. Newman Lumber Co. v. Scipp, 128 Miss. 322, 91 So. 11 (1922). Waller claims this rule means that the first lawsuit has paramount right to recover all damages regardless of when or where a subsequent suit is filed.

¶ 27. Snow and Harrell counter that Waller’s claim of entitlement based on first filing is not determinative, citing Moreland v. Riley, 716 So.2d 1057 (Miss.1998). In Riley, attorneys of an administratrix filed a wrongful death action. Their client was later replaced with a more appropriate administratrix and the case went to trial, producing a substantial award. The attorneys for the original (replaced) administra-trix and those representing the new one both claimed the attorney fees. The attorneys of the original administratrix were unable to adduce any proof as to any work they did in the case and they were awarded nothing. On appeal, this Court affirmed because the attorneys “failed to carry [their] burden of proving entitlement to a fee” for work done on the wrongful death case. Riley, 716 So.2d at 1063.

¶ 28. Similarly, in the case sub judice, Waller has not presented substantial evidence illustrating that the value of his services to either Jonathan or Heather warrant 100% of the attorney fees. Snow and Harrell presented to the Court that, in the depositions he did attend, Waller only asked 9% of the questions, whereas Snow and Harrell asked 91%. Snow and Harrell filed 83 pleadings, while Waller only filed 10. Waller did present evidence pertaining to his involvement in the settlement of the case, alleging that he independently settled the Franklin lawsuit. However, this assertion is not supported by the record. Testimony revealed that both Waller and Snow were involved in settlement negotiations, and Waller just happened to be the one that received and communicated to the court the final settlement offer. Defense counsel Toney testified that all the defense attorneys and all the plaintiffs attorneys were negotiating the case until the last day before trial. Toney further testified that the settlement would have been the same whether they had dealt with Waller or with Snow.

¶ 29. Moreover, a good settlement was achieved by the foundation laid by the diligent preparation of Snow and Harrell. Had they not been prosecuting the case, the plaintiffs would not have been able to use the leverage of punitive damages and the plaintiffs would have had no expert testimony. In other words, the case would not have been prepared for trial and, consequently, would have been worth considerably less on the eve of trial. In this Court’s opinion, Waller did not contribute more to settlement of the case than did Snow and Harrell.

¶ 30. When Judge Kitchens ordered the two Franklin cases joined, he also ordered that Snow and Harrell participate in working up the case. In reliance on that order and the chancery court approved contract, Snow and Harrell diligently pursued the wrongful death case. Mississippi law is clear that an attorney who has the authority to pursue the wrongful death case and then works the case up to a successful conclusion is entitled to a fee. In re Estate of Brewer, 755 So.2d 1108 (Miss.Ct.App.1999) (attorney who had a court approved contract and diligently pursued wrongful death case was entitled to his fee notwithstanding that the administratrix he represented was not an heir and not entitled to any of the proceeds). The attractive settlement position created by Snow and Harrell, as well as their thorough investigation of the case and preparation for trial contributed significant benefits upon both heirs and to award Waller all the attorney fees is to give him an undeserved windfall.

¶ 31. In Pannell v. Guess, 671 So.2d 1310 (Miss.1996), the father of the deceased hired counsel and brought suit for the wrongful death of his son. Although there were six heirs, the contract was signed only by the father. The other five heirs were unrepresented. After the attorney obtained a settlement of $150,000, the chancellor ruled that the attorney was entitled to his contingency fee only from the father’s share of the settlement. On appeal, this Court reversed. Because the other heirs derived benefit from the attorney’s actions and the heirs acquiesced to the amount negotiated by the attorney, this Court held the chancellor should have conducted a hearing in which the attorney could prove his right to compensation from the other heirs. Pannell, 671 So.2d at 1815. Similarly, Waller acquiesced in Snow and Harrell’s participation in this case, and his client benefitted from this acquiescence. Though it is true as Waller argues, that he opposed the consolidation of the cases, Waller allowed Snow and Harrell to continue to be involved in the case. The defendants knew Snow had diligently prepared the case for trial and was prepared to proceed to trial and verdict. They were aware of the possibility of a high punitive damage award based on the outcome in the Hawkins case, and Snow and Harrell have proved that their efforts in the prosecution of the case conferred substantial benefits on all the Franklin heirs.

¶ 32. As in Brewer, Snow and Harrell’s contract with Heather and the estate was approved by the chancery court before the suit was filed. Waller’s was not. Snow and Harrell ask this Court to grant them priority based on that approval. Pannell illustrates that obtaining court approval of contingency contracts in wrongful death cases is the preferred procedure. 671 So.2d at 1815. However, as Waller points out, the wrongful death statute does not require the plaintiff to obtain authorization to bring a lawsuit. In addition, the statute plainly states that the estate is not a part of the wrongful death claim, except for funeral, medical, and other related expenses. Therefore, Snow and Harrell’s approved contingency contract, though the preferred procedure, gives them no priority in this dispute. In any event, this issue is really a non-issue in that Snow and Harrell are entitled to compensation based upon their contribution to the case and their justifiable reliance on Judge Kitchens’s November 1999 order.

II. WHETHER THERE WAS AN IMPLIED CONTRACT BETWEEN WALLER AND SNOW AND HARRELL FOR THE PAYMENT OF ATTORNEY FEES.

¶ 33. Snow and Harrell’s next argument for reversal is that after the November 1999 order was entered allowing them to participate in the lawsuit, Waller’s acquiescence in the arrangement by allowing them to assume the majority of the work in getting the case prepared for trial created an implied contract.

¶ 34. When a party accepts and uses the services of an attorney knowing that compensation is expected, a contract will be implied for the payment of attorneys fees. See, e.g., In re Estate of Stewart, 732 So.2d 255, 259 (Miss.1999); West Ctr. Apartments Ltd. v. Keyes, 371 So.2d 854, 858 (Miss.1979); Collins v. Schneider, 187 Miss. 1, 192 So. 20, 23 (1939); Jones Bayou Drainage Dist. v. Sillers, Clark & Sillers, 129 Miss. 13, 91 So. 693, 694 (1922). A contract that arises from the conduct of the parties, also known as a contract implied in fact, has the same legal effect as an express contract. It carries as much weight as, and is as binding as an express contract. Magnolia Fed. Sav. & Loan Ass’n v. Randal Craft Realty Co., 342 So.2d 1308, 1312 (Miss.1977); Ahern v. South Buffalo Ry., 303 N.Y. 545, 104 N.E.2d 898 (1952), aff'd, 344 U.S. 367, 73 S.Ct. 340, 97 L.Ed. 395. Ct. 340, 344 U.S. 367, 73 S.Ct. 340, 97 L.Ed. 395 (1953); Restatement (Second) of Contracts §§ 4 cmt.

¶ 35. In Old Men’s Home v. Lee’s Estate, 191 Miss. 669, 4 So.2d 235, 236 (1941), this Court pointed out that a quasi or constructive contract rests on the equitable principle that a person shall not be allowed to enrich himself at the expense of another. It is an obligation created by law, in the absence of an agreement, when and because the acts of the parties or others have placed in the possession of one person money under circumstances that in equity and good conscience he ought not to retain and which in justice and fairness belong to another. Furthermore, in Cooke v. Adams, 183 So.2d 925 (Miss.1966), this Court held that any conduct of one party from which the other party may draw the inference of a promise is effective as such and the conduct of the parties is viewed as a reasonable man would to determine the existence or not of the contract implied in fact. To collect under an unjust enrichment or quasi-contract theory, the claimant must show “there is no legal contract but ... the person sought to be charged is in possession of money or property which in good conscience and justice he should not retain, but should deliver to another.” Estate of Johnson v. Adkins, 513 So.2d 922, 926 (Miss.1987) (quoting Hans v. Hans, 482 So.2d 1117, 1122 (Miss.1986)).

¶36. Waller objected to Judge Kitchens’s November 1999 order allowing Snow and Harrell to participate, and subsequently asked the court to reconsider. However, he took no further steps to voice his disapproval until it was time to split the attorney fees. Had Waller wanted to preserve his objection to Snow and Harrell’s participation and avoid the appearance of acquiescence, he should have advised Snow, Harrell, and Judge Kitchens that at the end of the case he would again dispute any claim for attorney fees and, more importantly, he should have undertaken to prepare the case for trial. However, as the previous discussion makes clear, Waller allowed Snow to do virtually all of the work. One cannot knowingly accept the services of an attorney and object for the first time when the bill comes due. Stoner v. Yandell, 188 So. 564 (Miss.1939). Waller knew that Snow and Harrell did the work expecting to be paid when the recovery was received. Under these circumstances, the law will imply a contract.

III. WHETHER JUDGE PIGOTT ERRED IN VACATING THE NOVEMBER 1999 ORDER OF JUDGE KITCHENS AFTER SNOW AND HARRELL RELIED ON IT IN PREPARING THE CASE FOR TRIAL.

¶ 37. Under Circuit Court Procedural Rules, any order signed during the course of the proceeding is not final and can be changed during the course of the action and prior to a final judgment. Final judgment was entered by the circuit court on April 23, 2001; however, the court retained jurisdiction “to the extent required to resolve the pending issues relating to the apportionment of attorney fees and expenses among the various counsel for plaintiffs.” Therefore, as Judge Kitchens’s November 1999 order was not final or dispositive, it was subject to change by Judge Pigott, who had the authority and duty to change or rescind any orders as required by the law and facts.

¶ 38. Judge Pigott held that while Heather had a right to join in the lawsuit filed by Jonathan, the control of the suit was in the hands of Jonathan and his attorneys since his suit was filed first. He held that since all heirs-at-law interests were represented in this one lawsuit, only one attorney’s fee was payable out of the recovery. Judge Pigott also ruled, “The Circuit Court had no authority to order attorneys Snow and Harrell into the Franklin case and no authority to adjudicate the division of attorney’s fees prospectively before recovery. Circuit Courts should not interject attorneys into another attorney’s cases and require a division of fees.”

¶ 39. Judge Kitchens’s November 1999 order consolidated the wrongful death cases of Jonathan and Heather (and the estate) and declared that the lawyers would handle the case as co-counsel and receive compensation based upon their contracts with their respective clients. This order did not divide attorney fees, as Judge Pigott held, rather it merely followed the wrongful death statute by stating that any recovery would be divided equally among the two heirs. The November 1999 order recognized the statutory requirement of equal distribution among the heirs; it left the compensation of the attorneys to their respective employment contracts.

¶40. Snow and Harrell argue that Judge Pigott’s vacating Judge Kitchens’s November 1999 order was in error because Judge Kitchens’s prior order was proper and reasonable. They argue the prior order: (1) protected the interest of both clients by allowing the lawyer of their choice to represent their interest; (2) it was fair to both sides because it gave the benefit of their respective contracts and gave a clear statement of the basis for each lawyer’s ultimate compensation; (3) it was reasonable; (4) it followed the wrongful death statute regarding joinder; and (5) it contemplated that all attorneys would work together for the mutual benefit of their respective client. This Court agrees.

¶41. The lawyers justifiably relied upon this order for over a year and a half as they prepared the case for trial. Judge Kitchens’s November 1999 order was well within his discretion. The wrongful death statute, Miss.Code Ann. § 11-7-13, states that “all parties interested may join the suit.” Allen v. Baker, 327 F.Supp. 706, 709 (N.D.Miss.1968). Judge Kitchens had the authority to consolidate the two cases. Mobile Jackson & Kansas City R.R. v. Hicks, 91 Miss. 273, 46 So. 360, 397 (1908) (nothing improper in consolidating wrongful death suit brought by widow with that brought by widow and children). See also Classic Coach, Inc. v. Johnson, 823 So.2d 517 (Miss.2002); Robinson v. Cobb, 763 So.2d 883 (Miss.2000). The parties disagreement is not with Judge Kitchens’s authority to consolidate the two cases, but lies ultimately in his allowing Snow and Harrell to participate in the joined action and his apportionment of the attorney fees according to each attorney’s contract with their respective client.

¶ 42. The wrongful death statute does not by its express terms limit the case to one lawyer or otherwise limit each heir’s choice of her own counsel. This Court has interpreted the statute to mandate that the wrongful death heir who first files a wrongful death claim is entitled to prosecute that claim to its conclusion. Thornton v. Ins. Co. of N. Am., 287 So.2d 262, 265 (Miss.1973). Cf. J.J. Newman Lumber Co. v. Scipp, 128 Miss. 322, 91 So. 11 (1922) (abating suit by widow after suit by administratrix); Mobile Jackson & Kansas City Railroad Co. v. Hicks, 91 Miss. 273, 46 So. 360 (1908), aff'd, 219 U.S. 35, 31 S.Ct. 136, 55 L.Ed. 78 (1910). However, we have found no authority for the proposition that the statute does not allow heirs to be individually represented by counsel of their choice. Judge Kitchens’s order did not “interject attorneys into other attorney’s cases” as Judge Pigott held, rather it simply recognized that already established relationship. The representation of Heather by Snow and Harrell simply came with the joined case.

¶ 43. Following Judge Kitchens’s order, Snow and Harrell expended substantial time and labor preparing the case for trial. They were obligated both by ethical and contractual obligations to their client and by Judge Kitchens’s order to diligently and zealously represent their client’s interest and prepare for trial. Judge Kitchens’s order promoted certainty by setting both the scope and limit of recovery of attorney fees at the outset. It enabled all parties’ reasonable expectations to be realized. The attorneys’ recovery was based upon their performance and the strength of their case and the client’s choice of attorney to represent them was respected.

¶ 44. On the other hand, Judge Pigott’s ruling that fees can only be determined at the end in effect reverses not only the November 1999 order but also the chancery court’s order that approved the contingency contract at the outset. Judge Pigott did not have the benefit of any new information that justified vacating Judge Kitchens’s order. In fact, the information before Judge Pigott, that Snow and Harrell had done 90% of the work, justified upholding rather than vacating Judge Kitchens’s order.

¶ 45. Judge Pigott’s order creates a dilemma for lawyers involved in wrongful death cases. They are contractually and ethically bound to diligently pursue their client’s claims but are left not knowing if they will be paid for their effort if their client was not the first to file. Judge Pigott’s order not only reaches an inequitable result; it penalizes heirs who want their own lawyer to represent them and are willing to pay them from their own recovery.

IV. WHETHER WALLER CAN BE AWARDED ATTORNEY FEES FROM HEATHER FRANKLIN, DESPITE THE FACT THAT HE HAD NO CONTRACT WITH HER.

¶ 46. In their fourth assertion of error, Snow and Harrell argue that Waller is not entitled to attorney fees from Heather because he had no contract with her. Precedent has established that an attorney who does work that enhances the value of a settlement should be paid for his efforts, even in the absence of a contract, and one who does nothing should not be given a windfall, even if a contract exists. Pannell v. Guess, 671 So.2d 1310 (Miss.1996). In re Estate of Brewer, 755 So.2d 1108 (Miss.Ct.App.1999). Moreover, in Pannell this Court held that an attorney who brings a wrongful death suit but has a contract with only one of the heirs does not bind the other heirs with whom he does not have a contract. This Court went on to concede that the lawyer under contract with one of the heirs may nevertheless be entitled to compensation from the other heirs if they derived a benefit from the services. This Court remanded that case and instructed the chancellor to revisit the issue of attorneys fees and award only what was reasonable under the circumstances. “[I]f he should find that the contingency fee was not reasonable, then he may assess a fee based on quantum meruit.” Pannell v. Guess, 671 So.2d at 1315. It follows from Pannell that an attorney who successfully prosecutes a wrongful death claim without representing all of the heirs must prove that he has earned a fee from the proceeds distributed to all of the heirs.

¶ 47. The efforts of Snow and Harrell on behalf of all the -wrongful death beneficiaries are uncontradicted. The fees sought by them are only those to which they are entitled under the court approved contract with Heather Franklin. Snow and Harrell would be entitled to compensation even absent the Chancellor approved contingency contract and Judge Kitchens’s order, since they have established their entitlement on quantum meru-it grounds.

¶ 48. In contrast, Waller had no contract with Heather Franklin and he did not put on any proof, at the trial level, in his brief, or during oral argument to establish that he is entitled to fees from the daughter based upon any work done on her behalf. He has made no quantum meruit showing. He has only relied on having been the first attorney to file a wrongful death suit. Pannell teaches that this is not enough.

CONCLUSION

¶ 49. Judge Pigott erred by vacating Judge Kitchens’s November 1999 order. Judge Kitchens’s joinder of Jonathan and Heather Franklin’s lawsuits was within his authority and was proper under the wrongful death statute’s mandate that there can be only one lawsuit based upon a wrongful death. Allowing Heather (and the estate) to retain the attorneys she chose was not at odds with the statute’s mandate. There was still only one lawsuit. Nothing in the statute prohibits parties in a wrongful death action from being represented by the counsel of their choice.

¶ 50. For these reasons, Judge Pigott’s order is reversed and Judge Kitchens’s 1999 order reinstated.

¶ 51. REVERSED AND RENDERED. APPELLEE, BILL WALLER, SR., SHALL DEPOSIT THE SUM OF $430,000.00 INTO THE REGISTRY OF THE CIRCUIT COURT OF RANKIN COUNTY, MISSISSIPPI, WITHIN 10 DAYS OF THE DATE OF THIS MANDATE, AND, UPON RECEIPT OF THOSE FUNDS, THE CIRCUIT CLERK OF RANKIN COUNTY SHALL PROMPTLY DISBURSE THOSE FUNDS TO APPELLANTS FRED HARRELL, JR. AND PAUL SNOW.

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

      .Snow and Harrell argue that Judge Kitchens should not have recused himself. They argue that the fact that Waller did not request Judge Kitchens to recuse himself until after he had presided over the case for a year and a half illustrates that Waller waived any right to have Judge Kitchens recused. See Buchanan v. Buchanan, 587 So.2d 892, 897 (Miss.1991) (the court "will not allow a party to take his chances with a judge about whom he knows of grounds for recusal and then, after he loses, file his motion”); Wilbanks v. Gray, 795 So.2d 541, 547 (Miss.Ct.App.2001) ("If the appellants had a problem with the religious affiliation of the special chancellor, their motion for recusal should have been filed at the beginning of the action rather than after receipt of an adverse ruling.”).

      . $45,000 of this went to Wright, who represented Jonathan for 45 days before giving the case to Waller.

      . Snow and Harrell were reimbursed their remaining expenses of $20,847 in the Hawkins case.

      . Defense counsel Toney testified that "much more” of the paperwork was generated by Snow’s office. “[A]ll the paperwork that came in the mail, it — it came from your — your [Snow’s] place.” Other than motions opposing the daughter’s joinder in the case, Waller filed interrogatories and request for production to Jerry Hobbs, who was later dropped from the lawsuit. He answered interrogatories and requests for production for the son. He designated experts, but failed to provide expert reports.

      . Half of which were reimbursed from the Hawkins' settlement.

      . Snow and Harrell, not Waller, responded to the defendant’s motion for summary judgment on punitive damages; Snow and Harrell, not Waller, responded to the truck drivers’s motions for protective orders, thereby securing their presence at depositions and developing a case for gross negligence.

      . Though he designated expert witnesses, Waller never presented the defense attorneys with any expert witness reports.

      . Moreover, Judge Pigott’s order creates the potential for a serious conflict of interest. Where, as here, the attorneys dispute the paternity of the heirs, combining the case and requiring the first attorney who filed to thereafter represent all of the heirs puts that attorney in an awkward position. Does she continue to press the paternity issue for the benefit of her initial client, or does she drop that inquiry and now zealously represent both her initial client and her new client, whom she suspects may not be a legitimate heir?


author: GRAVES, Justice, for the Court.

text:
    Christopher LEE v. STATE of Mississippi.
    No. 2001-KA-01704-SCT.
    Supreme Court of Mississippi.
    Aug. 14, 2003.

      Leslie D. Roussell, attorney for appellant.
    Office of the Attorney General, attorney for appellee.
    Before SMITH, P.J., EASLEY and GRAVES, JJ.
   GRAVES, Justice, for the Court.

¶ 1. Christopher Lee was convicted of murder by a jury in the Circuit Court of Wayne County, Mississippi, and sentenced to life imprisonment in the custody of the Mississippi Department of Corrections. Aggrieved by this conviction and sentence, Lee raises the following issues on appeal:

I. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ALLOWING THE STATE TO INTRODUCE INTO EVIDENCE PHOTOS OF THE VICTIM.
II. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY REFUSING TO GRANT PROPOSED JURY INSTRUCTIONS “D-2,” “D-3” AND “D-4” DEALING WITH MANSLAUGHTER.
III. WHETHER THE DISTRICT ATTORNEY MADE “CONSCIENCE OF THE COMMUNITY” ARGUMENTS AS WELL AS IMPLYING GUILT BY THE DEFENDANT’S FAILURE TO TESTIFY.

FACTS

¶ 2. On August 1, 2000, at approximately 6:30 p.m., Christopher Lee was alone and driving his vehicle around Wayne County, Mississippi, drinking beer. While on this drive, Lee saw Anice Smith on the side of the road, and she attempted to “flag him down.” Lee stopped his vehicle and allowed Smith to enter it. Smith asked Lee to take her into town, but, instead, the two rode around drinking beer together. After consuming alcohol, Smith asked Lee to drive her to her grandfather’s house. Lee took Smith to her grandfather’s house, and while there Smith began arguing with her grandfather. Shortly thereafter, Smith came outside with her sister and asked that Lee give her sister a ride around the block. Lee complied, the three got into his car, and they dropped Smith’s sister off at a designated destination.

¶ 3. Afterwards, Lee and Smith continued to ride around and went to a store to purchase more beer. Then the two went to a place in Wayne County known as “Academy Hill” and parked the car. The two sat in the car talking, and the discussion turned to Lee’s age. Smith said that she thought Lee was a minor, and he responded that he was twenty. Lee showed Smith his driver’s license as proof of his age. About thirty minutes later, Lee asked Smith to return his license, but she claimed she did not have it. Lee continued to ask Smith where his license was, and Smith kept giving him different answers. Eventually, the two got out of the car and looked for Lee’s license. Lee stated that he then, stuck his hand in Smith’s pocket to look for the license and cut his hand on a knife that was in her pocket. Lee claimed that Smith kept avoiding his questions and hollering and that he became enraged and stabbed her repeatedly. Lee ultimately found his license in his wallet.

¶ 4. Smith died from her stab wounds, and Lee was tried for murder, convicted, and sentenced to serve a term of life imprisonment.

DISCUSSION

I. PHOTOGRAPHS OF THE VICTIM ADMITTED INTO EVIDENCE.

¶ 5. Lee argues that the trial court committed reversible error by allowing the State to introduce into evidence photos of the victim, which showed either the body of the victim as it was found or various wounds which the victim’s body received. Lee contends that he admitted to the manner of the victim’s death; therefore, the pictures had no probative value. Additionally, Lee argues the photographs were prejudicial and were calculated to stir the emotions of the jury and cause prejudice, thereby preventing him from receiving a fair trial.

¶ 6. The record reflects that immediately after the jury was impaneled, the court excused it and conducted a hearing on the admissibility of photographs of the victim’s body, the crime scene, and Lee’s car. During the hearing, the State presented several photographs to the court. Lee objected to the exhibits contending that they were not probative because he was not contesting the fact that the victim had died as the result of repeated slashing and stab wounds nor the fact that he had driven over the victim. Therefore, he contends, the photographs were of no probative value. After careful review of each exhibit, the trial court determined that exhibits 2, 3, 5, 7, 8, 9, 10, 11, 12, 13, 14, and 17 contained evidentiary value and were admitted into evidence.

¶ 7. Admissibility of photographs rests with the discretion of the trial court. Jackson v. State, 672 So.2d 468, 485 (Miss.1996). Each of the photographs at issue depict different aspects of the crime scene, Lee’s car, the victim’s body as it was found at the scene, and the various wounds she sustained. Accordingly, they were “relevant to show the victims injuries and to help the jury visualize the crime and crime scene.” Underwood v. State, 708 So.2d 18, 38-34 (Miss.1998). The exhibits in question had at the very least “some probative value,” which “is the only requirement needed to buttress a trial judge’s decision to allow photographs into evidence.” Parker v. State, 514 So.2d 767, 771 (Miss.1986). Furthermore, photographs with probative value may be admitted even when the cause of death is not disputed. Williams v. State, 684 So.2d 1179, 1199 (Miss.1996). For these reasons, we find no reversible error.

II. PROPOSED JURY INSTRUCTIONS “D-2,” “D-3” AND “D-4.”

¶ 8. Lee argues that the court committed reversible error by refusing to grant the proposed jury instructions D-2, D-3, and D-4, all of which embodied the lesser offense of manslaughter. Lee contends the facts in this case do not rise to the level of murder but more accurately support a conviction for manslaughter. Lee asserts that his mental capacity at the time the act was committed was a substantial factor. Lee argues his mental capacity was relevant and that the trial court should have granted the proposed jury instructions D-2, D-3, and D-4.

¶ 9. Prior to considering these instructions, the trial court had granted Instruction S-3, set out below:

The Court instructs the Jury if the State has failed to prove all of the essential elements of the crime of murder, you may consider the lesser charge of manslaughter. However, it is your duty to accept the law given to you by the Court and, if the facts and law warrant a conviction for the crime of murder, then it is your duty to make such a finding uninfluenced by your power to find a lesser offense. This provision is not designed to prevent a failure of justice if the evidence fails to prove the original charge but does justify a verdict for the lesser crime.
If you find that the State has failed to prove any one or more of the essential elements of the crime of murder, you will proceed with your deliberations to decide whether the State has proven beyond a reasonable doubt all of the essential elements of the crime of manslaughter.
Therefore, should you find from the evidence in this case, beyond a reasonable doubt that:
1. On or about the 1st day of August, 2000 in Wayne County, Mississippi;
2. The Defendant, Christopher M. Lee, did wilfully, unlawfully and purposely cause the death of Aniee Smith, in the heat of passion, during an argument or within such time after an argument that passions had not had time to cool by stabbing, cutting and slashing her with a knife;
then it is your sworn duty to find the Defendant guilty of manslaughter.
Should the State fail to prove any one or more of these essential elements beyond a reasonable doubt, then you shall find the Defendant not guilty of manslaughter.

¶ 10. Instruction D-2 is reprinted as follows:

The Court instructs the Jury that if you find from the evidence in this case beyond a reasonable doubt that Christopher Lee on August 1, 2000, in Wayne County, Mississippi willfully killed Anice Smith without malice or premeditation, by the use of a deadly weapon, and further that Christopher Lee was not acting in necessary self-defense, then you shall find the defendant guilty of manslaughter.

¶ 11. The State objected to this instruction “as being an inaccurate statement of the law and not fitting the facts of this case.” The trial court agreed, finding that Instruction S-3, rather than D-2, fit “the factual evidence as presented by the defendant.”

¶ 12. Instruction D-3 is set out as follows:

The Court instructs the Jury that if you find from the evidence in this case, or have a reasonable doubt that Christopher Lee, without any malice or deliberation to cause the death of Anice Smith, and in in the heat of passion or while in a struggle with Anice Smith, or upon any sudden provocation by Anice Smith, did kill Anice Smith then you shall find the defendant not guilty.

¶ 13. Again, the State objected that the instruction was “an inaccurate statement of the law and not fitting this case,” as well as being “confusing.” The trial court concluded that D-3 was “restating matters” that were “covered ... in S-3” and refused it.

¶ 14. Instruction D-4 reads as follows: The Court instructs the Jury that if you find from the evidence in this case beyond a reasonable doubt that Christopher Lee on August 1, 2001, in Wayne County, Mississippi willfully killed Anice Smith without malice, in the heat of passion, by the use of a deadly weapon, and further that Christopher Lee was not acting in necessary self-defense, then you shall find the defendant guilty of manslaughter.

This instruction was refused by the trial court as repetitive.

¶ 15. “The trial court enjoys considerable discretion regarding the form and substance of jury instructions.” Higgins v. State, 725 So.2d 220, 223 (Miss.1998). “A defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which ... is fairly covered elsewhere in the instructions, or is without foundation in the evidence.” Id.

¶ 16. Additionally, Lee failed to demonstrate an abuse of discretion in the trial court’s refusal of repetitive instructions. This Court finds no reversible error.

III. IMPROPER ARGUMENTS MADE BY A PROSECUTOR.

¶ 17. Lee argues the courts have repeatedly held that a prosecutor cannot make “conscience of the community” arguments during his closing arguments. Lee alleges in the instant case that the State made “conscience of the community” arguments in its closing arguments. Lee further contends that the State implied his guilt by his failure to testify which is unconstitutionally prejudicial.

¶ 18. In the case at bar, the prosecutor stated:

And I am not trying to inflame your sense. I just think she deserves for y’all to hear her speak. I mean, this is her day in court. She is looking to you for justice and the people of Wayne County are looking to you to make this, their streets safer. I mean we cannot have somebody that is going to do this on the streets of Wayne County.

¶ 19. We find that even if the comment “the people of Wayne County are looking to you to make this, your streets safer” was interpreted as a “conscience of the community” argument, it was not so egregious as to require reversal based on the facts in the instant case. As determined by this Court, the standard to warrant reversal is “whether the error affected a trial in such a way as to bring its fairness into question.” Payton v. State, 785 So.2d 267, 270 (Miss.1999). Considering the overwhelming evidence of Lee’s guilt, it is inconceivable that this remark prompted the verdict. Dancer v. State, 721 So.2d 583, 590 (Miss.1998).

¶ 20. Lee’s allegation that the State implied his guilt by his failure to testify is without merit. The record reflects that Lee did in fact testify on his own behalf. Additionally, the record contains no comment by the State as to Lee’s failure to testify. Therefore, Lee’s claim as to this issue is meritless.

¶ 21. Lee also alleges that the statement made by prosecutor Webb, “And I assure you he is guilty.” The record does not reflect any such comment. Moreover, there was no one named prosecutor Webb participating in the instant case. Therefore, Lee has no basis for this issue.

CONCLUSION

¶ 22. The arguments presented by Lee are "without merit, and the trial court’s judgment is affirmed.

¶ 28. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND PAY COSTS OF COURT OF $248.00, AFFIRMED.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB, EASLEY AND CARLSON, JJ., CONCUR. McRAE, P.J., CONCURS IN RESULT ONLY. DIAZ, J., NOT PARTICIPATING.


author: WALLER, Justice, for the Court.

text:
    Margie Louise BROWN, by and through her Next Friend, Louise Ford v. J.J. FERGUSON SAND & GRAVEL COMPANY.
    No. 2002-CA-01354-SCT.
    Supreme Court of Mississippi.
    Aug. 28, 2003.
    Rehearing Denied Nov. 13, 2003.

      Brian Austin Hinton, Columbus, for appellant.
    Marc A. Biggers, Greenwood, for appel-lee.
    Before SMITH, P.J., WALLER and CARLSON, JJ.
   WALLER, Justice, for the Court.

¶ 1. Margie Louise Brown appeals from a summary judgment entered in favor of J.J. Ferguson Sand & Gravel, Inc., dismissing her damage action for the wrongful death of her father, Daniel L. Cannon. Finding the Webster County Circuit Court’s grant of summary judgment appropriate, we affirm.

FACTS

¶ 2. In the early morning hours of August 12, 1998, Jerry Marlow was driving a dump truck owned by MSB, Inc., on a portion of U.S. Highway 82 which was closed for the construction of a bypass. Marlow was driving to an asphalt plant near Eupora which was owned by J.J. Ferguson Sand & Gravel, Inc. (Ferguson). Marlow was to pick up a load of asphalt and take it to the “coal plant” near Acker-man for a construction project totally unrelated to the bypass project. Ferguson was the general contractor for the construction of the bypass and had given MSB permission to use the closed portion for trips to its nearby asphalt plant.

¶ 3. That same morning, Daniel J. Cannon was also driving on the closed portion of Highway 82. The road on which he lived intersected with the closed portion of Highway 82, so, to get anywhere, he would have to travel on the closed portion. The truck driven by Marlow collided with Cannon’s vehicle, and Cannon was killed.

¶ 4. Margie Louise Brown, Cannon’s minor daughter, sued Marlow, MSB and Ferguson for the wrongful death of her father. Ferguson’s motion for summary judgment was granted by the circuit court. Brown settled her claims against Marlow and MSB, and they were dismissed. Brown appeals from the grant of summary judgment in favor of Ferguson.

STANDARD OF REVIEW

¶ 5. We employ the de novo standard in reviewing a trial court’s grant of summary judgment. O’Neal Steel, Inc. v. Millette, 797 So.2d 869, 872 (Miss.2001). In conducting the de novo review, we look at all evidentiary matters before us, including admissions in pleadings, answers to interrogatories, depositions, and affidavits. Lee v. Golden Triangle Planning & Dev. Dist., Inc., 797 So.2d 845, 847 (Miss.2001) (citing Aetna Cas. & Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996)). This evidence must be viewed in the light most favorable to the party against whom the motion for summary judgment has been made. Leslie v. City of Biloxi, 758 So.2d 430, 431 (Miss.2000).

DISCUSSION

¶ 6. No one disputes that Marlow collided with Cannon on a closed highway and that Marlow was not engaged in any aspect of the construction of the bypass at the time of the collision. As such, there are no genuine issues of material fact. Brown settled with Marlow, the driver of the truck, and MSB, the owner of the truck. This left Ferguson as the remaining defendant. The sole evidence in opposition to the motion for summary judgment was a report submitted by Brown’s expert, Derek Barrentine, who stated that giving Marlow permission to use the unopened two lanes of the Highway 82 bypass was a breach of Ferguson’s duties as contractor. In his report, Barrentine quoted part of MUTCD § 6B-8, which provides for the occasions where a “Road Closed” sign can be used, and MUTCD § 6A-5, which states in part that, “[construction time should be minimized to reduce exposure to potential hazards.”

¶ 7. This conclusion is based on a very strained and out-of-context reading of the MUTCD. First, Brown never alleged any deficiency in the installation of signs or barricades. Second, the sections of the MUTCD that Barrentine quotes are taken out of context and pieced together from separate provisions within the MUTCD. Barrentine even admitted in his deposition that nothing in the MUTCD prohibits a contractor from allowing another person to use a closed portion of a roadway: “I didn’t find anything in the MUTCD that would permit anybody from riding on a closed road.” We have held that the MUTCD is admissible as nonconclusive proof of a standard of care, see Jones v. Panola County, 725 So.2d 774, 776-78 (Miss.1998), but the provisions one wishes to enforce must at least be applicable to the situation.

¶ 8. A “plaintiff must demonstrate duty and breach of duty before any other element. Duty and breach ‘are essential’ to a finding of negligence.” Strantz v. Pinion, 652 So.2d 738, 742 (Miss.1995) (citing May v. V.F.W. Post No. 2539, 577 So.2d 372, 375 (Miss.1991)). The extent of Brown’s articulation of a duty of care was through Barrentine’s report that did not reveal detailed and precise facts sufficient to prevent the entry of summary judgment. See Reynolds v. Amerada Hess Corp., 778 So.2d 759, 765 (Miss.2000); Herrington v. Leaf River Forest Prods., Inc., 733 So.2d 774, 779 (Miss.1999); Crystal Springs Ins. Agency, Inc. v. Commercial Union Ins. Co., 554 So.2d 884, 885 (Miss.1989).

¶ 9. Although Barrentine’s report endeavors to establish a legal duty and a breach thereof, it does not create a genuine issue of material fact sufficient to withstand a motion for summary judgment. As noted above, Brown conceded the facts were undisputed. Thus, Barrentine’s report improperly pertains to a question of law. On this point, “[wjhether a duty exists in a negligence case is a question of law to be determined by the court.” Belmont Homes, Inc. v. Stewart, 792 So.2d 229, 232 (Miss.2001) (citing Donald v. Amoco Prod. Co., 735 So.2d 161, 174 (Miss.1999)). See also Lyle v. Mladinich, 584 So.2d 397, 400 (Miss.1991).

CONCLUSION

¶ 10. The circuit court did not err in granting summary judgment on the basis that Brown’s expert’s report failed to establish a genuine issue of material fact. Therefore, the summary judgment entered in favor of J.J. Ferguson Sand & Gravel, Inc., is affirmed.

¶11. AFFIRMED.

PITTMAN, C.J., McRAE AND SMITH, P.JJ., COBB AND CARLSON, JJ„ CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND EASLEY, JJ., NOT PARTICIPATING.

      . Citations to the MUTCD referenced the 1988 edition. It has since been revised and renumbered.

      . Brown also raised vicarious liability as a sub-issue. However, no authority whatsoever was cited in support of such a position, so it is waived. Webb v. DeSoto County, 843 So.2d 682, 685 (Miss.2003).