author: COBB, Presiding Justice,

text:
    Toni Dae Anderson CHRISTIAN v. David Anthony WHEAT.
    No. 2003-CA-00388-SCT.
    Supreme Court of Mississippi.
    July 1, 2004.

      Penny Jones Alexander, Petal, attorney for appellant.
    Joseph Edgar Fillingane, W.J. Gamble, III, attorney for appellee.
   COBB, Presiding Justice,

for the Court.

¶ 1. The mother of a four-year old boy appeals from the chancery court’s granting of visitation to the boy’s natural father, who is in the custody of the Mississippi Department of Corrections and is incarcerated in the South Mississippi Correctional Institution in Leakesville, Mississippi. David Anthony Wheat (Wheat) was adjudicated the natural father of Anthony Gabriel Wheat (Gabe) as the result of a Petition for Judgment of Filiation filed by Gabe’s mother, Toni Dae Anderson Christian (Christian). The order of filiation awarded Christian full care, custody and control of Gabe, and held in abeyance and suspended all matters of visitation and child support until Wheat was released from the penitentiary. Three months later, Wheat filed the petition for modification of visitation, and was granted monthly visitation at the penitentiary. Christian filed motions for reconsideration and a new trial, and a motion to stay the order with the chancery court, which were denied. She then filed an appeal to this Court. Additionally, Christian filed a Motion to Stay Pending Appeal and a Motion to Suspend Rules and for Reconsideration of Motion to Stay Pending Appeal with this Court, which were both denied.

¶ 2. Because Wheat did not meet his burden of showing that visitation was in the best interest of the young child, we reverse and render against Wheat and in favor of Christian.

FACTS

¶ 3. Although Christian and Wheat never married, they had a son, Gabe, who was born December 2, 1998. Wheat has been incarcerated since January, 2000, and in June, 2001, he was sentenced to two concurrent ten-year prison sentences with five additional years of post release supervision, one for robbery and one for sale of a controlled substance. Wheat testified that he works as a trustee doing refrigeration work outside of the prison, has accumulated three years of trustee time and will be released from prison in October of 2006.

¶ 4. Christian filed her Petition for Judgment of Filiation in March, 2002. In awarding full custody to Christian, the Forrest County Chancery Court stated:

It is, therefore, ordered and adjudged that the Defendant, David Anthony Wheat, is the natural father of the minor child, Anthony Gabriel Wheat, and that the mother of the minor child, Toni Dae Anderson, is hereby awarded the full care, custody, and control of said minor child, and that all matters pertaining to visitation on behalf of the Defendant, child support, hospitalization, medical, and dental on behalf of the minor child are hereby held in abeyance and suspended until the Defendant is released from the confines of the Mississippi State Penitentiary.

(emphasis added). Three months later, Wheat filed a Petition for Modification, requesting visitation with his son at the prison, stating that the paternal grandmother would be responsible for transporting the child back and forth. Christian responded negatively, saying that the issue of visitation was settled with the Judgment of Filiation, which denied visitation while Wheat remained in prison, and requested the court to maintain that position. A hearing was held in January, 2003, at which the chancellor heard testimony from only Christian, Wheat, Christian’s father and Wheat’s mother.

¶ 5. There are many facts in dispute in this case, including: the amount of time Wheat spent with Gabe and the amount of support that Wheat and his family provided for Gabe; whether Wheat left Christian or Christian left Wheat; whether Wheat tried to maintain a relationship with the child or if he was prevented from doing so. There was evidence presented that Wheat and his mother provided a minimum amount of support for Gabe until around January, 2002.

¶ 6. There was no dispute that prior to March, 2002, Christian allowed visitation to Gabe’s paternal grandparents. It is disputed whether she authorized the grandparents to take Gabe to see Wheat in prison on several occasions. In March, 2002, Christian terminated the visitation saying that she did not want Gabe taken to the prison to see Wheat.

¶ 7. There was testimony from Wheat and his mother concerning the visiting area at the prison. Wheat presented the area as a room approximately 60' X 60', with a TV, play room, coloring books, swings, and vending machines, where the guards do not have weapons, and there are always kids there on visiting days. He stated that the kids think it is like a McDonald’s play house.

¶ 8. Christian testified that she did not want Gabe going to the prison because he was at a very impressionable age. Additionally, Christian said that Gabe barely knew Wheat, and that Wheat had had a year to build a relationship with Gabe, but did not do it. But she also gave conflicting testimony that she did not want Wheat around Gabe, and she and her father prevented Wheat from coming around because he took drugs and was dangerous. She also testified that she filed the petition for filiation in order to get custody so that she could prevent Gabe from being taken to the prison.

¶ 9. Christian’s father testified that he believed that it was dangerous for Wheat’s parents to take Gabe anywhere because they drink and could have an accident. Prior to this testimony, Chancellor Dale had questioned Marsha Wheat on her driving record and whether she had insurance. She testified that she had insurance and had never gotten a traffic citation of any kind.

¶ 10. In a bench ruling on January 10, 2003, the chancellor granted Wheat’s visitation request, stating:

Toni doesn’t want her child to visit with her child’s father, with whom she lived for a long period of time, and by that brought this child into the world, because he’s in prison. Well, that child’s going to know he’s in prison if he doesn’t know it now. If he doesn’t see him until he’s ten years old, he’s going to know his father was in prison. And that’s a fact he’s going to have to live with, which he did not contribute to.
David has a lot to make up for and what he has short changed his child, and it’s going to be an obligation he’s going to be faced with for a long period of time. I think the Court could, of its own volition, impose an obligation for accruing child support, but it wouldn’t do any good. But if I’m still around when Dave gets out of the penitentiary and they start looking for child support, I’ll remember it and I’ll be aware of all the circumstances. I’ll take [sic] to make some requirements that might be other than the usual requirements.
David, by his own voluntary action, has placed himself in a position where he can’t discharge the obligations that law imposes on him. Whether these parents like it or not they’re the ones that are responsible for this child being in this world and being forced to live with facts and circumstances as they exist and not as they would like to have them exist. And the child may get to be several years old or an adult and decide his father ain’t worth a you know what, but that’s his opportunity to arrive at that conclusion and not to be taught that by somebody else.
The facts are what they are. And you don’t do children any particular great favor when you try to shield from them knowledge of what the facts are. If they got a no-good mama and daddy, they’re going to find it out, and they’re entitled to find it out for themselves. It’s not a pleasant thing to visit somebody in your family at a prison. I have had great opportunity to observe that having served for a number of years on the penitentiary board. I know what went on in the penitentiary, and I know what visitation was. I could observe what the impact was on families, those on the outside as well as those on the inside. It is not a good situation. But try as you might, you’re not going to keep this young child from knowing exactly what’s gone on. One way or another he’s going to know.
It is not because Gabe deserves — I mean David deserves it because his conduct — if we just wanted to judge him on his conduct, the law would say he’s forfeited most of his rights. He doesn’t deserve much. He’s where he is by his own voluntary conduct. It is not the prerogative of the other parent to make the ultimate judgment for Gabe about relationship with his father. You can advise, you can counsel, you can undertake to make him understand proper conduct and good moral principles and what’s acceptable in society and what’s not acceptable, but you can’t shield him from being exposed to realties of life.
It’s my opinion that a youngster is entitled to have an opportunity by exposure under proper circumstances to both parents. Protections have to be imposed and risks that could be there have to be limited and removed if possible. It is my finding and opinion that this child is entitled to be exposed to his imprisoned father — not extensively. That will depend upon the relationship that can be brought to exist between the parent and the child.
It is not Toni’s place to tell Gabe that his father is a no good so and so nor vice versa for Gabe — for David to tell Gabe that his mother is narrow-minded and doesn’t like him and is not going to do anything to show kindness or consideration toward him. He’s going to find all that out for himself. Y’all don’t have to try to tell him. If you start trying to tell him and shape his mind about the other one, you may be doing your own self damage. You better stop and think about that.
I’m going to provide visitation ... (discussion of visitation details)
I reiterate, I think the child is entitled to have an opportunity to know both his parents. And as time progresses to come a point when he gets old enough and his mind matures enough to begin to make his own decisions about his relationship with his parents and his assessments of their worth in his life.

¶ 11. The visitation order allowed for visitation one Saturday per month, with the stipulation that Marsha Wheat pick Gabe up at Christian’s home at 8:30 a.m. on Saturday morning and return him by 4:00 p.m. that same day. Christian appealed from this order granting visitation while Wheat is incarcerated.

¶ 12. Christian brings one issue for appeal: whether the best interest of the child was considered before the order for visitation was imposed. She argues that the chancellor did not consider the child’s best interest because there was no testimony introduced concerning the child’s best interest and no finding by the chancellor that the child’s best interest was even considered. Wheat contends that the best interest of the child was considered, and that the chancellor found that is was in the best interest of the child to have some exposure to his incarcerated father, who wishes to be part of his son’s life.

ANALYSIS

¶ 13. Visitation and restrictions placed upon it are within the discretion of the chancery court. Newsom v. Newsom, 557 So.2d 511, 517 (Miss.1990); Clark v. Myrick, 523 So.2d 79, 83 (Miss.1988); Cheek v. Ricker, 431 So.2d 1139, 1146 (Miss.1983). Where a chancellor has made factual findings on the matter of visitation, this Court will not disturb those findings unless his findings are not supported by substantial credible evidence, he has committed manifest error, or he has applied the erroneous legal standard. Bredemeier v. Jackson, 689 So.2d 770, 775 (Miss.1997). However, while being attentive to the rights of a non-custodial parent, he must keep the best interest of the child as his paramount concern. Harrington v. Harrington, 648 So.2d 543, 545 (Miss.1994).

¶ 14. A party seeking the modification must show that a prior decree is not working and that a modification is in the best interests of the child. Cox v. Moulds, 490 So.2d 866, 869 (Miss.1986). Wheat supplied no testimony concerning what would be in Gabe’s best interest. There was no showing that it would be advantageous in any way for Gabe to visit Wheat in prison. On the other hand, Christian testified that Wheat was dangerous and that she was fearful of him. She also testified that Gabe was very young and impressionable, and she was concerned about Gabe being at the prison. She also testified that Gabe did not know his father, and Wheat did not dispute this. The chancellor, in his bench ruling, even discussed that visitation in a prison setting is “not a good situation.” Particularly in light of this contrary testimony, it was incumbent upon Wheat to make some showing that modification to allow the visitation was in the best interest of the child, and for the chancellor to keep the best interest of the child as his paramount concern. The chancellor made no finding of what would be in the child’s best interest; he simply stated that he felt that the child is entitled to have an opportunity to know both parents. It is hard for us to understand how the chancellor can make a determination that must be based on the best interest of this child without hearing any testimony concerning the child’s best interest. The only testimony heard by the chancellor was from Gabe’s parents, his maternal grandfather and paternal grandmother, and none of this testimony concerned Gabe’s best interest. There was no testimony by anyone else, professional or otherwise, regarding what, if any, impact the exposure to the prison environment might have on an impressionable four or five year old boy. Should this case come before this Court again on a subsequent petition for modification, it is imperative that the party seeking the modification show proof of the best interest of the child.

¶ 15. The specific question of visitation rights of incarcerated parents has not heretofore been addressed by this court, and because we render in this case on different grounds, we do not include an analysis of the question here. Jurisdictions which have reached the question of visitation rights of incarcerated parents generally express that incarceration, alone, is not sufficient to preclude visitation. The courts which have denied visitation most often have done so where the incarcerated parent has been convicted of a violent crime, particularly if the crime was committed against the child, and there is evidence that the parent would be a threat to child. See In re Hall, 65 Ohio App.3d 88, 582 N.E.2d 1055 (1989); Pacheco v. Bedford, 787 A.2d 1210 (R.I.2002); Suttles v. Suttles, 748 S.W.2d at 429. In one of these cases, the court stated that transporting a child to prison on a regular basis gives a presumption that visitation is not in the child’s best interest. In re Hall, 582 N.E.2d at 1057. Because this issue has not been raised in this case, we decline to rule on it at this time.

CONCLUSION

¶ 16. Because there was no proof that visitation in the present case would be in the child’s best interest, we reverse the chancellor’s judgment, and we render judgment that visitation is terminated until such time as it can be shown that it is in the best interest of the child to resume visitation.

¶ 17. REVERSED AND RENDERED.

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

      . See Nicholson v. Choctaw County, 498 F.Supp. 295 (S.D.Ala.1980); Valentine v. Englehardt, 474 F.Supp. 294 (D.N.J.1979); O’Bryan v. County of Saginaw, 437 F.Supp. 582 (E.D.Mich.1977); Mabra v. Schmidt, 356 F.Supp. 620 (W.D.Wis.1973); Michael M. v. Arizona Dept. of Econ. Security, 202 Ariz. 198, 42 P.3d 1163, 1165 (Ct.App.2002); In re Smith, 112 Cal.App.3d 956, 169 Cal.Rptr. 564 (1980); Hoversten v. Superior Court, 74 Cal.App.4th 636, 88 Cal.Rptr.2d 197 (1999); Smith v. Smith, 869 S.W.2d 55, 57 (Ky.App.1994); Nielsen v. Nielsen, 217 Neb. 34, 348 N.W.2d 416 (1984); Hervieux v. Hervieux, 603 A.2d 337, 338 (R.I.1992); Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn.1988).


source: Caselaw Access Project

author: SMITH, Chief Justice, EASLEY, Justice,

license: Public Domain

text:
    Regina POWELL and Thomas Powell v. METHODIST HEALTH CARE-JACKSON HOSPITALS.
    No. 2001-CT-01881-SCT.
    Supreme Court of Mississippi.
    July 1, 2004.

      Lance L. Stevens, Jackson, J. Stephen Wright, Ridgeland, attorneys for appellants.
    Heber S. Simmons, III, Tina Lorraine Nicholson, Jackson, attorneys for appellee.
   ON WRIT OP CERTIORARI

SMITH, Chief Justice,

for the Court.

¶ 1. Regina Powell and her husband, Thomas, filed suit against Methodist Health Care-Jackson Hospitals (Methodist), alleging that Powell had suffered an injury to her leg and foot during surgery to remove her gall bladder. The Hinds County Circuit Court granted Methodist’s motion for summary judgment. Powell appealed, and the appeal was assigned to the Mississippi Court of Appeals which unanimously affirmed. We subsequently granted certiorari.

¶ 2. The Court of Appeals’ opinion, Powell v. Methodist Health Care-Jackson Hosps., 856 So.2d 353, 355-56 (Miss.Ct.App.2003), adequately sets out the facts in this case. Therefore, they will not be repeated here.

ANALYSIS

¶ 3. Because we conclude that summary judgment was appropriate and the Mississippi Court of Appeals did not err, we affirm the judgment in this case.

¶ 4. As the Court of Appeals correctly noted, where the matter at issue is not within the scope of a layperson’s common knowledge, negligence can be proven in a medical malpractice action only where the plaintiff presents medical testimony establishing that the defendant physician failed to use ordinary skill and care. Gatlin v. Methodist Med. Ctr., Inc., 772 So.2d 1023, 1026 (Miss.2000). See also Coleman v. Rice, 706 So.2d 696, 698 (Miss.1997); Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So.2d 1346, 1354 (Miss.1990). Moreover, as in any negligence action, a plaintiff claiming medical malpractice must show that there is a causal connection between the injury and the defendant’s conduct or acts. See Palmer, 564 So.2d at 1355.

¶ 5. Here, Powell presented medical testimony through her expert, Dr. Alexander. Powell, 856 So.2d at 357. Dr. Alexander plainly stated that the operating table strap probably did not cause Powell’s injury. Id. As the Court of Appeals concluded, Dr. Alexander’s testimony made no mention of any deviation from Methodist’s standard of care. Id. As such, it escapes us how we could conclude that Powell established Methodist’s standard of care in this case.

¶ 6. Moreover, we agree with the Court of Appeals that Powell also failed to make a showing of proximate cause. That is, Powell failed to show a causal connection between her injuries and Methodist’s acts or conduct. Powell’s other expert witness testified in her deposition that the operating table strap appeared to be placed on Powell’s leg in a “perfectly normal” manner. Powell, 856 So.2d at 357. Powell alleged that “either medical negligence or some sort of pressure was inflicted on her left leg.” Id. at 356. However, the same expert stated that according to the medical records, there was no evidence of external pressure to Powell’s leg during the procedure. Id. at 357.

¶ 7. Finally, as to Powell’s assertions regarding res ipsa loquitur, we conclude that doctrine is inapplicable under the facts presented here. Under the doctrine of res ipsa loquitur, negligence can be inferred in certain factual situations. Winters v. Wright, 869 So.2d 357, 363 (Miss.2003). This Court has held that this doctrine should be cautiously applied. Id. Explaining the use of this doctrine, we have stated that

[t]he real question, generally, is whether or not in the process of the operation any extraordinary incident or unusual event, outside of the routine of the action of its performance, occurred, and beyond the regular scope of its customary professional activity in such operations, which, if unexplained, would themselves reasonably speak to the average man as the negligent cause or causes of the untoward consequence.

Id. Res ipsa loquitur may be applied only when three elements are present. First, the defendant must have control and management of the instrumentality causing the plaintiffs injury. Id. Moreover, “the injury must be such that in the ordinary course of things it would not occur if those in control of the instrumentality used proper care.” Id. Third and finally, res ipsa loquitur only applies where the injury is not a result of the plaintiffs voluntary act. Id.

¶ 8. Powell’s own expert witness confirmed that the cause of Powell’s injury could be from negligent or non-negligent causes. Specifically, Dr. Alexander stated, “I would have to speculate as to the possible cause, and only after said speculation could I label it negligent or not. I could not tell you now that I am certain negligence occurred in the operating room this day.” Id. at 359. Additionally, there was no evidence that the result of the injury was not a result of some voluntary act on Powell’s part. Therefore, we hold that the doctrine of res ipsa loquitur does not apply in this case.

CONCLUSION

¶ 9. In sum, Powell failed to establish Methodist’s standard of care; she made no showing of a causal connection between her injuries and Methodist’s acts or conduct, and; she did not satisfy the elements of res ipsa loquitur in this case. Accordingly, under our case law, we hold that the Court of Appeals and the trial court did not err and that Methodist Health Care-Jackson Hospitals was entitled to summary judgment. Therefore, we affirm the judgments of the Court of Appeals and the trial court.

¶10. AFFIRMED.

WALLER AND COBB, P.JJ., CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. EASLEY, J., DISSENTS WITH SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

EASLEY, Justice,

Dissenting:

¶ 11. I respectfully dissent from the majority opinion today. The Court of Appeals did not cite Palmer v. Clarksdale Hosp., 206 Miss. 680, 40 So.2d 582 (1949) in its opinion. I conclude that pursuant to this Court’s holding in Palmer, the element of instrumentality could be met at trial. Therefore, I would reverse and remand the case for further proceedings.

I. Instrumentality

¶ 12. The Powells cite Palmer v. Clarksdale Hospital, 206 Miss. 680, 40 So.2d 582 (1949), where Palmer suffered injuries to her feet during a non-specified surgery, allegedly due to improper use of straps used to fasten Palmer’s feet to the operating table. The trial court granted a directed verdict in favor of Clarksdale Hospital at trial. Palmer called as a witness Miss Francis, who was the circulating nurse during the surgery. Francis had no independent recollection of the surgery. She did agree that she did not loosen the straps during the forty-five minutes they were on Palmer’s feet, but she did not believe that the straps were capable of being tightened enough to cut off the circulation to the feet. This Court reversed, stating:

There was no defect in appellant’s feet when she went into the operating room. She was there placed under an anaesth-etie[anesthetic] and rendered unconscious, so that she was unable to take care of herself or make complaint of anything that was done to her. The straps were placed upon her feet and were kept there, suspending the weight of her feet and legs, without release or loosening to restore circulation, for about forty-five minutes. Nothing touched appellant’s feet that could have caused this injury except these straps. The demonstration made before the jury, coupled with the testimony of appellant’s physician, was such that the jury could have found, as reasonable men, that the straps continued to tighten upon appellant’s feet to the extent of obstructing the circulation of blood therein, and that reasonable care on the part of appellees required a temporary loosening of these straps, and that a failure therein proximately caused the injuries to appellant. In fact, the evidence excluded every causal connection except the straps, and we are of the opinion that the lower court erred in excluding the evidence and refusing to submit the case to the jury for decision.

Palmer, 206 Miss. at 693-94, 40 So.2d at 584 (emphasis added).

¶ 13. This Court in Palmer v. Clarksdale Hospital relied on Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687 (1944), where Ybarra had his appendix removed. Ybarra remembered that when he was placed on the operating table two hard objects were pressing into his neck and shoulder area. After surgery Ybarra felt pain and numbness in his right shoulder. The trial court dismissed Ybarra’s suit. The California Supreme Court reversed, finding that the fact that Ybarra could not identify any definite instrumentality as causing his injury was not fatal to his cause of action. It further found that a strict interpretation of res ipsa loquitor would result in few if any patients able to recover for injuries received while unconscious. The court finally held that “where a plaintiff receives unusual injuries while unconscious and in the course of medical treatment, all those defendants who had any control over his body or the instru-mentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct.” Ybarra, 154 P.2d at 691.

¶ 14. Here, the Court of Appeals found that there was no showing of an instrumentality under the exclusive control of Methodist Hospital that caused damage to Powell. The operating room circulating nurse in Powell’s gall bladder surgery was Carolyn Rowe, but there is no deposition testimony or account from her concerning the surgery in this record. There is an excerpt from the deposition of Barbara Bregande, identified as the Powells’ nursing expert, in Powell’s petition for certiora-ri. In her deposition, she testified:

Q: Do you have any information or knowledge that they [operating room staff] weren’t careful in placing that strap?
A. I have no way of knowing that, because I see nothing in the records to indicate how the strap was placed or the second time the strap was placed on the patient. I only know how is ivas placed the first time which looked perfectly normal.
Q. And do you have any information or information that there was any external pressure placed on Mrs. Powell leg during the course of that procedure?
A. I cannot find in the records any other area where we might conceive that the patient had pressure other than in the operating room.
Q. That is not my question. My question was, do you have any information or knowledge that there was external pressure placed on her leg during the course of that procedure?
A. According to the record, no.

(emphasis added). However, there was some mention of a body strap by Powell’s experts, but there is no deposition testimony on how the strap was applied. Powell testified that she was unconscious and did not recall anything from the point that the anesthesiologist gave her a sedative. She testified in her deposition as follows:

Q. When they took you to surgery, then what happened? What do you recall?
A. I recall going to another area where a anesthesiologist came in and asked some questions....
Q. Let me back up a second. Before you went in to speak with the anesthesiologist, had you been given any medication — •
A. I don’t recall....
Q. Okay. At the next stage, were you given any medication by the anesthesiologist at that point?
A. I think I was given a- — after I talked to the anesthesiologist, on of those — I guess, like a sedative shot to relax me.
Q. Okay. How did that affect you?
A. I don’t remember anything past that point.
Q. Were you conscious?
A. Not after the sedative.
Q. Okay. Prior to receiving the sedative, what' else do you remember as far as preparations for surgery?
A. That’s about all I remember....
Q. Prior to be given the sedative, do you recall bumping your left knee on any piece of hospital equipment?
A. No.
Q. You were just positioned in the bed — how were you positioned in the bed? Were you laying on your back?
A. Yes.
Q. Legs straight out in front?
A. On my back, elevated a little bit. Kind of a sitting position.
Q. How were your legs positioned?
A. Straight....
Q. Do you recall being uncomfortable at all in the way you were positioned prior to going into the operating room—
A. No.
Q. —at any point? Prior to being given the sedative, do you recall a safety strap across you at any location on your body?
A. Prior to the sedative?
Q. Yeah.
A. No.
Q. Okay. Do you recall seeing any kind of safety strap laying across your body at any point prior to or after the surgery?
A. No.
Q. Do you know what type of anesthetic you were given? Were you given a general anesthesia or a local? I understand you had gallbladder surgery.
A. Yes.
Q. Did they knock you out completely?
A. Yes
Q. When you transferred yourself from the stretcher to the bed, were you able to pick your legs up and move them over yourself?
A. Yes.
Q. So you could pick them up and put them down?
A. Yes.
Q. Okay. Did you tell me you recalled feeling the sensation of your left foot being asleep as soon as you woke up?
A. As soon as I woke up.
Q. Did you report that to anybody?
A. Everyone in the room.
Q. Who do you recall being in the room?
A. There were two staff personnel that brought me to the room. I think it was two males. There was a nurse already in the room. I’m assuming that was my assigned nurse. My husband and my mother-in-law.

¶ 15. Dr. Fisher, the doctor who performed the gallbladder surgery, testified in his deposition that straps are always used on patients in surgery but did not recall specifically if straps were used on Powell. He stated:

Q. Do you recall a safety strap being used on Mrs. Powell?
A. I don’t recall in particular for Mrs. Powell, but I will tell you the safety strap is always used on patients — so that number one, they don’t fall off the table.
Q. Certainly.
A. They fall off the table and bust their head open and all like that, then we got a real problem.
Q. Yes, sir. So you don’t recall specifically a safety strap on Mrs. Powell; is that right?
A. I wasn’t — probably wasn’t there when she was being place on the table and everything being put on the table, so I can’t tell you one way or the other.

¶ 16. Dr. Alexander, the neurosurgeon who treated Powell for compressed nerve damage testified that he could state what cause Powell’s nerve compression. However, he stated in his deposition as follows:

Q. I hearing you to say that you’re not prepared to testify to a reasonable degree of medical probability as to what caused her compression?
A. I am prepared to give the opinion that I think it was a compression. I do not know what the compressive agent would be or could be not, A, having been there and, B, being ultimately familiar beyond a — -just a rudimentary level as to what could have caused the compression. I know there is a black strap used, but I think the people that were there on that case that day might better give opinions.
Q. I just want to make sure I understand so I don’t waste all of our— everybody’s time. With regard to the causation, at this point, you’re limiting your testimony to the fact that she had a compressed peroneal nerve, but as to what caused, to a reasonable degree of medical probability, that compressed nerve, that’s not what you’re prepared to testify to, correct?
A. That’s been my opinion all along.

He further testified:

Q. Now, I apologize for asking you this again, but we’re on the subject: Based on everything that we’ve talked about, and based on your knowledge, education, training and experience, I believe you’ve testified that you can’t say to a reasonable degree of medical probability what the compressive agent was; is that correct?
A. Yes, sir, I think we’ve hit it three or four different times. I cannot say.
Q. Okay.
A. All I can say is that Mrs. Powell told me she went into the operating room without this complaint and she came out with it.

¶ 17. Based on this Court’s holding in Palmer and this evidence, the element of instrumentality could be met at trial. Therefore, I would reverse the judgements of the Court of Appeals and the trial court and remand this case for trial.

      . We note that the Court of Appeals, citing Brown v. Baptist Mem'l Hosp.-DeSoto, Inc., 806 So.2d 1131, 1135 (Miss.2002), concluded that four elements must be satisfied in order for this doctrine to be applicable. It is true that Brown states this proposition, but that language is a mere aberration. We clarified in Winters that the doctrine is made up of three elements. We reiterate that holding today.


author: DICKINSON, Justice, GRAVES, Justice,

text:
    Gregory Scott WILLIAMSON v. STATE of Mississippi.
    No. 2003-IA-01456-SCT.
    Supreme Court of Mississippi.
    July 1, 2004.
    J. Stewart Parrish, Meridian, Attorney for Appellant.
    Office of the Attorney General by Wayne Snuggs, Attorney for Appellee.
   ON PETITION FOR PERMISSION TO APPEAL

DICKINSON, Justice,

for the Court.

¶ 1. Pursuant to M.R.A.P.5, we grant Gregory Scott Williamson’s petition to bring this interlocutory appeal, and we consider the merits of that appeal. This is an interlocutory appeal of a trial judge’s order denying the defendant’s motion to suppress evidence obtained as a result of an anonymous tip. Because we find the actions of the law enforcement officials were lawful and reasonable, we affirm and remand.

BACKGROUND FACTS

¶ 2. At 9:36 a.m., on August 27, 2002, Agent Overstreet of the South Mississippi Drug Task Force heard over his police radio from the dispatcher for the Police Department of the City of Waynesboro, the following information: (1) two white males had come into Campbell’s Big Star and purchased “large quantities” of Pseu-doephedrine (also known as Sudafed); (2) these two individuals had also attempted to purchase Sudafed from the Family Dollar Store; (3) The two white males left Campbell’s Big Star in a white van with license number 4BA 347, and headed west on Highway 84, also known as Azalea Drive.

¶ 3. Overstreet understood that the information obtained from the dispatcher was provided to the police department from the two retail stores, but the identity of the callers was unknown.

¶ 4. In response to the information, Overstreet proceed to Azalea Drive, where he spotted a white van in the parking lot of Fred’s Dollar Store (also known to sell Sudafed). After verifying that the white van had two white males inside, and the tag number matched the number provided to the police, Overstreet called for back-up. When it arrived, he pulled up behind the van, got out of his vehicle and walked up to the van.

¶ 5. Overstreet requested the driver (Gregory Scott Williamson) to produce his driver’s license, and informed the suspects that two Waynesboro stores had informed the police that two white males had purchased, or attempted to purchase, pseu-doephedrine. When asked why they were purchasing Sudafed in Waynesboro when they lived in Petal, the suspects provided “evasive” responses.

¶ 6. Overstreet then asked the occupants of the van, including Williamson, to exit the van and, upon further questioning, concluded that the occupants were continuing to provide evasive answers. He then requested consent to search the van, informing Williamson that if permission was not granted, a search warrant would be obtained. Williamson consented.

¶ 7. Upon searching the van, Overstreet discovered several boxes of Sudafed and a fuel additive alcohol (gas treatment). Both these chemicals constitute “precursors” used in the illegal manufacture of controlled substances. See Miss.Code Ann. § 41 — 29—313(l)(a)(i). Additionally, Over-street discovered receipts from several Waynesboro stores for Sudafed purchases. The receipt from Campbell’s Big Star was time-stamped at 9:16 a.m.

ANALYSIS

¶ 8. Williamson does not challenge the search of the van. The issue he presents us is “whether an anonymous tip which gives a vehicle description, direction of travel, and tag number, provides a sufficient basis for police officers who have independently observed no indication of ongoing or imminent criminal activity to make a stop.... ”

¶ 9. Facing a similar set of facts and speaking through Presiding Judge (now Chief Judge) King, the Court of Appeals provided an excellent analysis in Shannon v. State, 739 So.2d 468 (Miss.Ct.App.1999). Rejecting a motion to suppress evidence obtained by a police officer who questioned the defendant without probable cause for an arrest, id. at 471, Judge King quoted with approval the following language:

Police activity in preventing crime, detecting violations, making identifications, and in apprehending criminals may be divided into three types of action: (1) Voluntary conversation: An officer may approach a person for the purpose of engaging in a voluntary conversation no matter what facts are known to the officer since it involves no force and no detention of the person interviewed; (2) Investigative stop and temporary detention: To stop and temporarily detain is not an arrest, and the cases hold that given reasonable circumstances an officer may stop and detain a person to resolve an ambiguous situation without having sufficient knowledge to justify an arrest; (3) Arrest: An arrest may be made only when the officer has probable cause.

Singletary v. State, 318 So.2d 873, 876 (Miss.1975). In Shannon the Court of Appeals then stated:

Police officers have the authority to detain a person without actually arresting him for investigatory purposes. Haddox v. State, 636 So.2d 1229, 1234 (Miss.1994). “[G]iven reasonable circumstances an officer may stop and detain a person to resolve an ambiguous situation without having sufficient knowledge to justify an arrest.” Estes v. State, 533 So.2d 437, 441 (Miss.1988) (quoting Griffin v. State, 339 So.2d 550, 553 (Miss. 1976)). A reasonable suspicion is all that is required to effectuate a ‘stop and frisk’. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Shannon, 739 So.2d at 471.

¶ 10. The United States Supreme Court has held that “there are situations in which an anonymous tip, suitably corroborated, exhibits ‘sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.’ ” Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (quoting Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)).

¶ 11. This Court has also held that “[r]easonable cause for an investigatory stop may be based on an officer’s personal observation or on an informant’s tip if it bears indicia of reliability.” Floyd v. City of Crystal Springs, 749 So.2d 110, 118 (Miss.1999). “Reasonable suspicion is dependent upon the content of the information possessed by the detaining officer as well as its degree of reliability.” Id. “Both factors — quantity and quality' — -are considered in the ‘totality of the circumstances’.” Id.

¶ 12. Also, in Floyd v. State, 500 So.2d 989 (Miss.1986), this Court stated that:

[a]n investigatory stop may be made even where officials have no probable cause to make an arrest as long as they have “reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony ... or ‘some objective manifestation that the person stopped is, or is about to be engaged in criminal activity.’ ”

Id. at 992 (quoting McCray v. State, 486 So.2d 1247, 1249-50 (Miss.1986)).

¶ 13. The information provided to Over-street included the color of the van, the number and race of occupants, the license plate number and the direction of travel, including the name of the street. All of these details were verified by Overstreet prior to the investigatory questioning.

¶ 14. Overstreet testified that retail stores frequently call the police department when customers purchase, or attempt to purchase, large quantities of Su-dafed.

¶ 15. At the suppression hearing, the trial judge observed that

[a] retail establishment has a vested interest in being truthful in their dealings with authorities as they are an integral part of the community. There was a description of the van, with the occupants, with a specific tag number headed West on Azaelea Drive. Agent Over-street had sufficient information in the form of this tip to have a reasonable suspicion that the Defendants had committed a crime.

We find no error in that decision.

CONCLUSION

¶ 16. The trial court in the ease sub judice found that the stop was based upon reliable information and was reasonable. We agree. Therefore, we affirm the trial court’s denial of the motion to suppress evidence, and we remand this case to the trial court for further proceedings consistent with this opinion.

¶ 17. AFFIRMED AND REMANDED.

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

GRAVES, Justice,

Dissenting.

¶ 18. This is an interlocutory appeal of the Wayne County Circuit Court’s denial of a motion to suppress evidence obtained pursuant to an illegal stop. The majority of this Court ignores clearly established precedent and carves out new standards in what appears to be an attempt to address the social problem created by the manufacture and use of illegal drugs. The majority apparently intends to silently overrule a long line of cases from both this Court and the United States Supreme Court and to encourage government intrusion into the lives of private citizens without probable cause. While I agree that there is a serious social problem, I respectfully submit that violating constitutional rights to achieve a desired result is not the appropriate course of action. Because I disagree and find that the illegally obtained evidence should be suppressed, I must respectfully dissent.

¶ 19. The Fourth Amendment to the United States Constitution and Article 3, Section 23 of the Mississippi Constitution express a person’s right to be secure from unreasonable searches and seizures, including investigatory stops of a vehicle. Investigatory stops are permitted if the officer has a reasonable suspicion, grounded in specific and articulable facts, that the suspect was involved in or is wanted in connection with a felony. See United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Floyd v. City of Crystal Springs, 749 So.2d 110 (Miss.1999); Floyd v. State, 500 So.2d 989 (Miss.1986). See also United States v. Morales, 191 F.3d 602 (5th Cir.1999); McCray v. State, 486 So.2d 1247 (Miss.1986).

¶ 20. Law enforcement officers in Wayne County received an anonymous tip that two white males in a white van had bought a large quantity of over-the-counter sinus medicine containing pseu-doephedrine (Sudafed) from Campbell’s Big Star in Waynesboro. The tip included a vehicle tag number. Based on the anonymous tip, law enforcement officers stopped Williamson.

¶ 21. Williamson was charged with possessing two precursor chemicals under § 41-29-313(1).

(l)(a) Except as authorized in this section, it is unlawful for any person to knowingly or intentionally:
(1) Purchase, possess, transfer or distribute any two (2) or more of the listed precursor chemicals or drugs in any amount with the intent to unlawfully manufacture a controlled substance;
(ii) Purchase, possess, transfer or distribute any two (2) or more of the listed precursor chemicals or drugs in any amount, knowing or under circumstances where one reasonably should know, that the listed precursor chemical or drug will be used to unlawfully manufacture a controlled substance;
(b) Any person who violates this subsection (1), upon conviction, is guilty of a felony and may be imprisoned for a period not to exceed thirty (30) years and shall be fined not less than Five Thousand Dollars ($5,000.00) nor more than One Million Dollars ($1,000,000.00), or both fine and imprisonment.

Miss.Code Ann. § 41-29-313(1) (Rev.2002) (emphasis added). Further, the statute sets out:

(2)(c) It is unlawful for any person to purchase, possess, transfer or distribute two hundred fifty (250) dosage units or fifteen (15) grams in weight (dosage unit and weight as defined in Section 41-29-139) of pseudoephedrine or ephedrine, knowing, or under circumstances where one reasonably should know, that the pseudoephedrine or ephedrine will be used to unlawfully manufacture a controlled substance.

Miss.Code Ann. § 41-29-313(2) (Rev.2002). (emphasis added).

¶ 22. The anonymous tipster did not convey any specific dosage amount, that the suspects had purchased any other precursor chemical or that the suspects had indicated an intent or knowledge that the Sudafed was going to be used to illegally manufacture a controlled substance. The tip was that Williamson bought or attempted to buy large amounts of Sudafed, which, in and of itself, is not illegal. The tip did not relay any factual basis to reasonably believe that Williamson was engaged in or about to engage in a felony.

¶ 23. The majority finds that the stop was reasonable. I disagree. The stop was based on an anonymous tip that did not convey any criminal activity. The majority relies on the trial court’s finding that a retail establishment has a vested interest in being truthful and that the anonymous tip should therefore be reliable. There is no definitive evidence before us that the call even came from an employee of the retail establishment.

Overstreet stated that he did not know who had called the police department, but that it was riot a coded confidential informant who had given credible information in the past.

Order of June 3, 2003, at 4 (emphasis added). Nevertheless, even if the informant was identified, the tip alone would not be sufficient to establish a factual basis to reasonably believe that Williamson was engaged in or about to engage in a felony. There was no tip that Williamson had purchased anything other than Sudafed or that he was manufacturing a controlled substance or engaging in any other felony. Law enforcement had no reasonable basis to believe that Williamson was engaged in the illegal activity with which he was ultimately charged. The majority appears to interpret the applicable statute as stating that if a person purchases more than a box of Sudafed, he must be using it for some illegal purpose. The language of the statute clearly requires intent or knowledge that the precursor will be used to illegally manufacture a controlled substance. There must be some additional evidence other than just the purchase of one precursor to establish a reasonable basis for an investigatory stop.

¶ 24. The officer testified that there was also a second call reporting that the men attempted to buy Sudafed at the Family Dollar Store. The majority at least twice refers to this second call. However, the dispatcher’s log did not reflect any such second call and, as stated previously, the officer did not know who called. The trial court order states:

A copy of the Dispatchers log was entered into evidence as Exhibit 1 to the hearing. The log showed a call from Campbell’s Big Star, but no call from Family Dollar.

Order of June 3, 2003, at 4 (emphasis added). There was also no receipt for a Sudafed purchase from Family Dollar, nor was there any receipt for the fuel additive.

¶ 25. The majority relies on the lower court case of Shannon v. State, 739 So.2d 468 (Miss.Ct.App.1999), but does not even attempt a thorough analysis under the controlling case of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), or its progeny. While Shannon does accurately set out some of the standards regarding police action, the case is distinguishable. Shannon’s parked car was approached by a law enforcement officer as he was loitering after midnight in a parking lot that the police had been asked to patrol. Shannon was walking toward the car when the officer asked what he and a passenger were doing there. The officer then patted Shannon down for weapons, but since he was unable to feel under Shannon’s coat, he asked Shannon to empty his pockets, which contained paraphernalia and crack cocaine. That is an entirely different factual scenario than the case sub judice.

¶ 26. The majority cites Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (quoting Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)) for the proposition that there are situations in which an anonymous tip provides reasonable suspicion to make an investigatory stop. The majority fails to mention that the United States Supreme Court held in Florida v. J.L. that an anonymous tip that a young, black male standing at a particular bus stop and wearing a specific plaid shirt was unlawfully carrying a gun lacked sufficient indicia of reliability to establish reasonable suspicion for a Terry investigatory stop. In fact, the quote cited by the majority is immediately preceded in the opinion by the statement that “an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity.” Id. at 271, 120 S.Ct. 1375 (quoting Alabama v. White, 496 U.S. at 329, 110 S.Ct. 2412). The Court there further set out that verification of the information contained in a tip does not provide a reasonable basis for suspecting unlawful conduct.

An accurate description of a subject’s readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.

Id. at 272, 120 S.Ct. 1375. The Court was referring to an anonymous tip alleging illegal activity. In the case sub judice, we don’t even reach that. We have an anonymous tip alleging legal activity. A description and location of the defendant does not establish that the tip is “reliable in its assertion of illegality.” Likewise, the indi-cia of reliability must be established by the officer prior to the stop and is not proven by the confirmation of the allegation.

That the allegation about the gun turned out to be correct does not suggest that the officers, prior to the frisks, had a reasonable basis for suspecting J.L. of engaging in unlawful conduct: The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search.

Florida v. J.L., 529 U.S. at 271, 120 S.Ct. 1375.

¶ 27. The majority cites Floyd v. City of Crystal Springs, 749 So.2d 110, 118 (Miss.1999) regarding reliability of the informant and the totality of circumstances. However, Floyd involved a known, named source, who had previously provided credible information, approaching a police officer in person and conveying information regarding specific illegal activity. That Court also found:

[T]he information given by the informant to Officer Leflore was neither vague as to the type of criminal activity nor imprecise as to the kind of crime being committed. The informant also described the suspect’s location with some particularity. Furthermore, the name of the informant in the case at hand was known by Officer Leflore, and Leflore had received complaints from the informant in the past.

Id. at 119. The Court also reiterated that “a tip by an unnamed informant of undisclosed reliability standing alone will rarely establish the requisite level of suspicion” for an investigative stop, but that a known tipster confronting an officer in person should be given more weight. Id. at 118.

¶ 28. The anonymous informant in the case sub judice was not a named source who had provided information in the past, the activity complained of was not criminal in nature and the tip was not precise as to the crime being committed.

¶ 29. The majority also cites Floyd v. State, 500 So.2d 989 (Miss.1986). Although the applicable standard regarding investigatory stops is recited in Floyd, the issue raised there was actually whether the Highway Patrol had probable cause to arrest Floyd. However, the majority does quote language from Floyd, quoting McCray v. State, 486 So.2d 1247 (Miss.1986), which raises another determinative issue.

¶ 30. In McCray, this Court held that a search of the defendant’s luggage at the airport did not violate the Fourth Amendment, but that the evidence was insufficient to support a conspiracy charge. The Court set out the standard that an investigative stop of a suspect may be made where officials have “a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony .... or some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” Id. at 1249, 1250. The Court found the stop proper after an analysis of the relevant facts.

In this case, the officers in observing certain characteristics of the often used drug courier profile clearly had probable cause to stop and question the appellant. The appellant had (1) made a trip to a “source city”, (2) purchased a one-way ticket, (3) made a long distance trip with a short turn around, (4) checked a suitcase that was not completely full, (5) was accompanied by persons who used fictitious names, even though he did not do so himself, and (6) claimed luggage which a drug-detecting dog had indicated contained narcotics.

Id. at 1250.

¶ 31. The United States Supreme Court made a similar analysis in United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621:

The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions — inferences and deductions that might well elude an untrained person .... Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.

Id. at 418, 101 S.Ct. 690.

¶ 32. This Court has previously acknowledged that such a stop is problematic. However, in researching other jurisdictions, I have not found any that has upheld a stop based on such limited facts. In State v. Bulington, 802 N.E.2d 435 (Ind.2004), the Indiana Supreme Court held that a tip from a store employee that the defendants had purchased antihistamines was not sufficient to create a reasonable suspicion necessary to justify stopping the defendants’ vehicle. In Bul-ington, store employees observed two defendants enter the store, select three boxes of antihistamines each and check out separately, then walk out to a truck where they were seen removing the tablets from the boxes and putting them in bags. An identified store employee called the police and conveyed that information as well as the location and movement of the men, and the color and type of vehicle they were driving. Officers stopped the vehicle as it was pulling out of the store parking lot, got consent to search and found numerous items that could be used in the manufacture of methamphetamine. The court found that the content of the tip that the men had purchased one precursor was not enough to provide the officer with reasonable suspicion to make a stop.

¶ 33. The cases where courts have found reasonable suspicion involve substantially more evidence than that presented here. The Fifth Circuit in United States v. Martinez, 808 F.2d 1050 (5th Cir.1987), found a stop proper where a Drug Enforcement Agency officer entered a chemical company as the defendant was completing a transaction and saw a receipt for all of the chemicals needed to manufacture crystal methamphetamine. The officer followed the defendant, who began driving erratically, and eventually stopped him.

¶ 34. In United States v. Ameling, 328 F.3d 443 (8th Cir.2003), the court found an investigatory stop proper where a named Target store security officer, who had received law enforcement training, viewed two defendants purchasing pseudoephed-rine products and acting suspiciously via a surveillance monitor, and then reported the activity to police, who verified that the defendants then proceeded to another store and purchased additional precursors, before making the stop.

¶ 35. The United States District Court in United States v. Avoque, 255 F.Supp.2d 1010 (D.Neb.2003) found a stop proper where officers received a tip from store employees that the defendant and another person had attempted to purchase two gallons of iodine, but left without completing the purchase when asked for identification. After receiving the tip, officers conducted surveillance on the car and observed the occupants purchasing pseudoephedrine from two drug stores before stopping the car.

¶ 36. In the case sub judice, there was no surveillance by law enforcement or verification that any criminal activity was afoot. The “profiling” was not done by a trained law enforcement officer. An anonymous, untrained source drew the inferences and made the. deductions. The anonymous tip was purported to be from Campbell’s Big Star. The tip would presumably have been made from a store clerk, who is not likely to have any law enforcement training whatsoever, much less the ability to identify an individual as a manufacturer of crystal methamphetamine from a single purchase of Sudafed. However, as previously discussed, the identity of the tipster was unknown. Su-dafed is sold over the counter at pharmacies, discount stores, convenience stores, grocery stores, gas stations and other places. Those businesses also generally allow patrons use of their telephones within reason. Even if the call was traced back to a particular business, there is no way to know the identity of the person making the call. Without identification and some indicia of reliability of any tip, a stop based on such information is wholly improper and the resulting fruit illegal.

¶37. The majority opinion sets the stage for an investigatory stop any time law enforcement receives an anonymous tip that an individual has made a lawful purchase of any precursor chemical regardless of whether such is intended for a sinister purpose. The majority also sets the stage for an investigatory stop based on false or malicious tips from unreliable, anonymous sources. Those precursor chemicals are found in many household items, including acetone fingernail polish remover, lithium batteries, iodine, gas treatment, table salt, matchbooks, isopro-pyl alcohol, etc. Such action is greatly outside the scope of established precedent and a violation of the Fourth Amendment.

¶ 38. Making a lawful purchase of over-the-counter medication does not create a “reasonable suspicion, grounded in specific and articulable facts, that the suspect was involved in or is wanted in connection with a felony.” There are no articulable facts set out that Williamson had or was about to engage in illegal activity. The anonymous tip did not carry sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop. Because I would find that any evidence seized as a result of the illegal stop should be suppressed, I must respectfully dissent.

      . See Schattenburg v. State, 2003-M-00443, where a panel of this Court entered an order that denied the petition for interlocutory appeal, but suggested that the trial court at least revisit the motion to suppress evidence.

      . Interestingly, the court also notes that "[Retail stores often offer 'buy one-get one free’ coupons with a one-per customer limitation. A customer can circumvent that limitation and double his or her purchasing power by shopping with a companion, each of whom uses the ‘buy one-get one free coupon,' checks out separately, and then meets outside to settle up.” Id. at n. 3.


author: WALLER, Presiding Justice, GRAVES, Justice,

text:
    Regina WRIGHT v. George QUESNEL, M.D., and South Panola Community Hospital.
    No. 2002-CA-00385-SCT.
    Supreme Court of Mississippi.
    July 1, 2004.

      William C. Walker, Jr., Jackson, attorney for appellant.

      Shelby Kirk Milam, S. Duke Goza, Oxford, attorneys for appellees.
   WALLER, Presiding Justice,

for the Court:

¶ 1. Regina Wright filed suit against George Quesnel, M. D., and South Panola Community Hospital for the death of her unborn child, alleging that Dr. Quesnel failed to make proper diagnoses and order proper treatment and that SPCH was also liable due to respondeat superior. The circuit court granted Dr. Quesnel and SPCH’s a motion for summary judgment based on immunity under the Mississippi Tort Claims Act (MTCA). Miss.Code Ann. §§ 11-46-1-23 (Rev.2002). We affirm.

FACTS

¶ 2. Dr. Quesnel was the exclusive provider of obstetric and gynecological services at SPCH, a public hospital which is a “governmental entity” under the MTCA. Dr. Quesnel was Wright’s obstetrician and treated Wright from her first trimester of pregnancy forward. Eight months into her pregnancy, Wright presented to Dr. Quesnel with high blood pressure and possible pre-eclampsia. Dr. Quesnel did not hospitalize Wright but sent her home for bed rest. Wright saw Dr. Quesnel again three days later, and was again ordered to bed rest. Three days later, Wright again saw Dr. Quesnel, this time with severe pain that began early that morning at home. Dr. Quesnel determined that the fetus had died in her womb.

¶ 3. After motions for summary judgments were filed, the circuit court ruled that, based on the employment contract between Dr. Quesnel and SPCH, and on the fact that Dr. Quesnel received compensation only from SPCH, Dr. Quesnel was a full-time SPCH employee and was shielded from liability under the MTCA. Wright appeals.

STANDARD OF REVIEW

¶ 4. We review summary judgment rulings de novo. Miller v. Meeks, 762 So.2d 302 (Miss.2000). A summary judgment motion is properly granted when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Id. at 304; Miss. R. Civ. P. 56(c). The moving party has the burden of demonstrating that no genuine issues of material fact exist. The trial court must review all evidentiary matters before it in the light most favorable to the non-moving party. Id. Where one party swears to one version of the matter at issue, and the other another version, issues of fact can be present sufficient to bar summary judgment. Id. (citing American Legion Ladnier Post No. 42, Inc. v. City of Ocean Springs, 562 So.2d 103, 106 (Miss.1990)). As we have stated,

An issue of fact may be present where there is more than one reasonable interpretation of undisputed testimony, where materially different but reasonable inferences may be drawn from un-contradicted evidentiary facts, or when the purported establishment of the facts has been sufficiently incomplete or inadequate that the trial judge cannot say with reasonable confidence that the full facts of the matter have been disclosed.

Id. at 305 (citing Dennis v. Searle, 457 So.2d 941, 944 (Miss.1984)). Indeed, where we find triable issues, we must reverse a summary judgment.

DISCUSSION

I. WHETHER DR. QUESNEL WAS AN EMPLOYEE OF SPCH AT ALL TIMES PERTINENT TO THE COMPLAINT, THUS AFFORDING HIM IMMUNITY UNDER THE MTCA.

¶ 5. The circuit court found that at the time of the alleged negligence, Dr. Quesnel was an employee of the state of Mississippi under Miss.Code Ann. § 11-46-5 (Rev.2002). Wright contends that, despite SPCH’s employment contract with Dr. Quesnel in which he is defined as an SPCH employee, SPCH held itself out to the public via its “Conditions of Admission Form” as not being Dr. Quesnel’s employer. Due to the conflict between the form and the contract, she argues an issue of fact exists as to Dr. Quesnel’s employment status.

¶ 6. We find that the circuit court correctly decided that Dr. Quesnel was an employee of SPCH at the time of the alleged negligence. In its answer, SPCH admitted that Dr. Quesnel was its employee during all times pertinent to the allegations of the complaint. A third party such as Wright cannot say that the legal effect of a contract between two other parties (SPCH and Dr. Quesnel) is different from that intended by the two other parties unless the third party can show that the contract was made for his or her benefit. Burns v. Washington Savs., 251 Miss. 789, 171 So.2d 322, 324 (1965). Here, the benefits of the employment contract flow to SPCH and Dr. Quesnel only, not to Wright. No material issue of fact exists.

¶ 7. Also, in determining whether a physician is a state employee, we have looked past form (titles, Conley v. Warren, 797 So.2d 881 (Miss.2001), malpractice insurance, Knight v. McKee, 781 So.2d 121, 123 (Miss.2001), practice plans, Mozingo v. Scharf, 828 So.2d 1246 (Miss.2002), etc.), to the substance of the physician’s relationship with the state hospital. The factors we consider are the physician’s acts, the state hospital’s interest in the physician’s acts, the state hospital’s control over the physician’s acts, whether the physician’s acts involved judgment and discretion, and whether the physician received compensation from the patient. See Miller v. Meeks, 762 So.2d 302, 310 (Miss.2000). The Miller factors are more than sufficient to determine the status of physicians working for state hospitals, and that SPCH’s disclaimer of liability for Dr. Quesnel’s acts does not change the legal status of Dr. Quesnel, especially when SPCH has admitted that Dr. Quesnel was its employee.

II. WHETHER WRIGHT COMPLIED WITH THE NOTICE PROVISIONS OF THE MTCA.

¶ 8. Under the MTCA,

After all procedures within a governmental entity have been exhausted, any person having a claim for injury arising under the provisions of this chapter against a governmental entity or its employee shall proceed as he might in any action at law or in equity; provided, however, that ninety (90) days prior to maintaining an action thereon, such person shall file a notice of claim with the chief executive officer of the governmental entity.

Miss.Code Ann. § 11-46-11(1) (Rev.2002). Plaintiffs must substantially comply with the notice provisions. See Carr v. Town of Shubuta, 733 So.2d 261 (Miss.1999); Reaves ex rel. Rouse v. Randall, 729 So.2d 1237 (Miss.1998). While a plaintiff need only substantially comply with the MTCA notice statute, “we can hardly afford relief under the [MTCA] when there is no effort to comply with the procedural mandates.” Little v. Miss. Dep’t of Human Servs., 835 So.2d 9, 12-13 (Miss.2002) (emphasis added). That is, “[t]hough substantial compliance with the notice provisions is sufficient, ‘substantial compliance is not the same as, nor a substitute for, non-compliance.’ ” Gale v. Thomas, 759 So.2d 1150, 1158 (Miss.1999) (quoting Carr v. Town of Shubuta, 733 So.2d 261, 265 (Miss.1999)).

¶ 9. Wright’s child died on August 26, 1999. She filed her notice of claim with SPCH on May 24, 2001. She filed her complaint against SPCH on June 4, 2001, eleven days after filing her notice of claim. SCPH argued in its motion for summary judgment that Wright failed to comply with the MTCA notice provisions. The circuit court determined that Wright had failed to comply with those provisions. It is clear that, although strict compliance with the MTCA notice provisions is no longer required, a complete failure to comply is not the same as substantial compliance. Wright filed a notice of claim but did not wait the statutorily-prescribed ninety day period before filing suit. Allowing a plaintiff to file suit before ninety days have passed since noticing the claim is tantamount to reading out the notice provisions of the MTCA. Gross disregard for the notice provisions is not considered substantial compliance.

¶ 10. The MTCA provides for a one-year statute of limitations. Miss. Code Ann. § 11-46-11 (Rev.2002). That statute of limitations is, however, subject to a discovery rule. Wayne Gen. Hosp. v. Hayes, 868 So.2d 997, 1000 (Miss.2004). The discovery rule tolls the statute of limitations “ ‘until a plaintiff should have reasonably known of some negligent conduct, even if the plaintiff does not know with absolute certainty that the conduct was legally negligent’ ” Id. at 1000-01 (quoting Moore ex rel. Moore v. Mem’l Hosp. of Gulfport, 825 So.2d 658, 667 (Miss.2002)). But to benefit from the discovery rule, a plaintiff must be reasonably diligent in investigating her injuries. Wayne Gen. Hosp., 868 So.2d at 1001. We have recognized that “[t]he focus is on the time that the patient discovers, or should have discovered by the exercise of reasonable diligence, that he probably has an actionable injury.” Id. (quoting Smith v. Sanders, 485 So.2d 1051, 1052 (Miss.1986)).

¶ 11. In Wayne General, Wa’Landra Hayes was admitted for observation at Wayne General Hospital, a community hospital for purposes of the MTCA. 868 So.2d at 999, 1003-04. Wa’Landra was subsequently transferred to the University of Mississippi Medical Center- for treatment. Id. at 999. The UMMC doctors determined that Wa’Landra needed a peritoneal dialysis catheter and performed the procedure. Id. Her bowels were perforated, which resulted in peritonitis, and a serious infection developed in Wa’Landra’s bloodstream. Id. Wa’Landra’s death certificate listed sepsis as a cause of death. Id. Wanda Hayes subsequently met a former employee of Wayne General Hospital who allegedly witnessed negligent treatment of Wa’Landra while at the hospital. Id. As a result of this “chance meeting,” Wanda filed suit. Id.

¶ 12. We concluded that the plaintiffs in Wayne General, at the time of Wa’Lan-dra’s death, “had enough information such that they knew or reasonably should have known that some negligent conduct had occurred, even if they did not know with certainty that the conduct was negligent as a matter of law.” Id. at 1001. Because the death certificate listed sepsis as a cause of death, we concluded that it should have been apparent to the plaintiffs that some negligent conduct had occurred. Id.

¶ 13. In addition, we held that the discovery rule did not apply in Wayne General because the plaintiffs were not reasonably diligent in investigating the cause of Wa’Landra’s injuries. Id. Hayes filed suit only after a chance meeting with a former employee of Wayne General Hospital. Id. Hayes did not perform or initiate any kind of investigation as to Wa’Landra’s treatment. Id. We noted that “[t]he intent of the discovery rule is to protect potential plaintiffs who cannot, through reasonable diligence, discover injuries done to them.” Id.

¶ 14. Here, the record indicates that Dr. Quesnel ordered “bed rest” after Wright’s first visit. After the second visit, Dr. Quesnel told her that everything was fine and did not order any type of treatment. At the third visit, Wright complained of severe pain which started early that morning. Tragically, her child had died in the womb. Wright, like the plaintiff in Wayne General, had enough information at the time of the death such that she knew or reasonably should have known that negligence had occurred. She had been to see Dr. Quesnel twice and received no treatment but an order to rest — her symptoms and discomfort continued, however. When she discovered that her child had died in the womb, Wright should have known that there was some causal connection between the death and Dr. Quesnel’s treatment.

¶ 15. Moreover, even if Wright did not recognize the causal connection at the time of death, there is absolutely no indication that Wright made any attempts to determine the cause of her child’s death until after one year had elapsed. As the circuit court noted, Wright did not offer any evidence that she could not have discovered the injury within the applicable statute of limitations. Wright did not even seek counsel until one year after the death, at which time her lawyer’s medical expert determined that Dr. Quesnel committed malpractice. Thus, pursuant to our recent holding in Wayne General, we find that there is no issue of fact with respect to whether the discovery rule tolled the statute of limitations; accordingly, SPCH was entitled to summary judgment.

CONCLUSION

¶ 16. Because no material issue of fact exists as to whether Dr. Quesnel was a state employee or as to whether South Panola Community Hospital was a governmental entity under the MTCA, and because Wright did not comply with the notice provisions of the MTCA, we affirm the circuit court’s entry of summary judgment in favor of Dr. Quesnel and South Panola Community Hospital.

¶ 17. AFFIRMED.

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

GRAVES, Justice,

dissenting:

¶ 18. I disagree with the majority’s holding that there was no issue of material fact as to whether Dr. Quesnel was an employee of SPCH at the time of the alleged negligence. Additionally, I cannot agree with the majority’s finding that Regina Wright was not reasonably diligent in discovering the cause of her child’s death. It is clear that there are material issues of fact that exists as to these two arguments. Therefore, I respectfully dissent.

¶ 19. Wright contends that despite its employment contract with Dr. Quesnel in which he is defined as an SPCH employee, SPCH held itself out to the public via its “Conditions of Admission Form” as not being Dr. Quesnel’s employer. Due to the conflict between the form and the contract, she argues an issue of fact exists as to Dr. Quesnel’s employment status. Wright also contends that she was unable to discover the cause of her unborn child’s death within the MTCA limitations period and thus that period was tolled.

¶ 20. Two independent questions must therefore be addressed to determine whether summary judgment was proper in this case. First, there is no question that SPCH is a community hospital and therefore a political subdivision of the State of Mississippi. As such, its liability is clearly governed by the MTCA. Second, however, Dr. Quesnel’s employment status is not clear from the record and must be addressed pursuant to this Court’s MTCA cases and the evidence of record. Finally, since the MTCA’s period of limitations bars claims after one year of injury, Wright’s basis for not discovering the cause of the death of her unborn child until beyond that time period is also addressed.

a. Is Dr. Quesnel an employee of SPCH, whose liability is therefore yoverned by the MTCA?

¶ 21. The MTCA “ ‘provides the exclusive civil remedy against a governmental employee for acts or omissions which give rise to a suit.’ ” Watts v. Tsang, 828 So.2d 785, 791 (Miss.2002) (citing L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136, 1138 (Miss.1999)); Miss.Code Ann. § 11 — 46—7(1) (2002). Therefore, any tort claim filed against a public employee, including publicly employed physicians, must be brought under the MTCA. Id. And “no employee shall be held personally liable for acts or omissions occurring within the course and scope of the employee’s duties.” Miss.Code Ann. § 11-46-7(2) (2002). “The MTCA makes the state responsible for the negligence of its employees at a financial level the legislature has determined to be reasonable.” Watts, 828 So.2d at 791.

¶ 22. In Miller v. Meeks, this Court held that the MTCA extends immunity to state employed physicians who are not acting as independent contractors. 762 So.2d 302 (Miss.2002). We also established a five-part test in Miller to determine whether a state employed physician is an employee or an independent contractor for purposes of MTCA liability. Id. See also Smith v. Braden, 765 So.2d 546 (Miss.2000). The Miller test considers the following factors:

(1) the nature and function performed by the employee;
(2) the extent of the state’s interest and involvement in the function;
(3) the degree of control and direction exercised by the state over the employee;
(4) whether the act complained of involved the use of judgment and discretion; and
(5) whether the physician received compensation, either directly or indirectly, from the patient, for professional services rendered.

Miller, 762 So.2d at 310. Wright briefs these factors extensively on appeal; and I agree with the majority that certain of them favor Wright’s position. However, the majority fails to acknowledge this Court’s holding in Knight where we held that if physicians do not receive compensation for the practice of medicine from sources other than the state hospital then it is not necessary to address the test enunciated in Miller. Knight v. McKee, 781 So.2d 121, 123 (Miss.2001). The evidence in this case makes clear that Dr. Quesnel does not receive any compensation other than that provided by SPCH. Accordingly, citing Knight, the circuit court below did not apply the Miller test. It then ruled that Dr. Quesnel was not an independent contractor and was therefore protected under the MTCA.

¶ 23. The majority’s reasoning on this matter is wrong. While Dr. Quesnel indeed does not receive compensation outside of SPCH, nor does he engage in any form of outside employment, certain evidence in this ease conflicts with his employment contract, thus unquestionably calling his employment status into question. The “Conditions of Admissions Form” (Form) that Wright signed upon admission to Dr. Quesnel’s care is in stark conflict with Dr. Quesnel’s employment contract. The circuit court addressed this issue, but ruled that since Wright had not “relied” on the Form, that it was not dis-positive of the issue of Dr. Quesnel’s employment status; rather, the employment contract was. However, while the circuit court cites to these arguments, they are noivhere found in the record before this Court. Further, while Wright may not have relied on the Form, this does not avoid the fact that SPCH has explicitly represented to the public that it is not Dr. Quesnel’s employer.

1. The Employment Contract

¶ 24. The employment contract provided in the record and signed by both “employer” and “employee,” indicates that Dr. Quesnel is to be the exclusive provider of obstetric and gynecological services at SPCH, that he is to work exclusively for SPCH full time and is to see all Medicare and Medicaid patients regardless of their ability to pay. SPCH pays Dr. Quesnel a salary, provides office space, support staff, relocation expenses, term life insurance, medical malpractice coverage, PERS enrollment, reimbursement for pre-author-ized professional fees, dues and other business related expenses. SPCH retains authority to exercise discretion over and give support to Dr. Quesnel in regard to standards, policies, record keeping, treatment procedures and fees to be charged. But such direction and support “shall not interfere with the usual physician/patient relationship nor be in violation of acceptable medical ethics.” SPCH retains the right to determine which “employee” will render services to its patients. All patients are those of SPCH and all patients belong to and remain SPCH property. When Dr. Quesnel’s employment ends, the patients continue to be SPCH’s patients, unless they choose otherwise. Finally, all fees for service rendered by Dr. Quesnel shall belong to SPCH; and SPCH takes care of all billing. Under the terms of the employment contract, therefore, the argument can be made that Dr. Quesnel is in fact an SPCH employee.

b. The Conditions of Admission Form

¶25. The record indicates, however, that SPCH clearly wants its patients to know and understand that Dr. Quesnel is not its employee or agent. Indeed, Wright’s Admission Form, which she had to sign as a condition of admission to SPCH, reads as follows:

I further understand that the physicians providing care and treatment to me, including radiologists, pathologists, and anesthesiologists, are not employees or agents of and are not supervised or controlled by the hospital.

(Emphasis added).

¶ 26. The glaring conflict between this Form and the employment contract raises a genuine issue of material fact as to Dr. Quesnel’s employment status. SPCH cannot have it both ways. Dr. Quesnel either is or is not SPCH’s “employee.” This is an issue of material fact that should have barred granting summary judgment below. Further, as mentioned, the record before this Court does not support the circuit court’s ruling that the Form is not disposi-tive in this case. For these reasons, I disagree with the majority’s holding.

¶ 27. A similar factual scenario occurred in Miller v. Meeks in which this Court held that summary judgment against the Plaintiff was improper, in part, based upon his “private clinic” appointment card. 762 So.2d at 307. The plaintiff-patient, Mr. Fox, was treated by Dr. Meeks at UMMC. Fox was issued appointment cards for his visits which, at the bottom, directed him to the UMMC “private clinic,” thus indicating that the services rendered there by Dr. Meeks were not governed by Dr. Meeks UMMC employment contract but rather by Dr. Meeks as a private physician. Id. Ultimately, the “private clinic” declaration on Fox’s appointment card, in conjunction with Dr. Meek’s fee/pay arrangements with UMMC for services rendered there, were enough for this Court to reverse summary judgment as to whether Dr. Meeks was an employee of UMMC while serving in the “private clinic.” Id. at 309. Similarly, in the present case, was Dr. Quesnel acting as a private physician, if in fact, the Form clearly said he was not an SPCH employee? In both Miller and the present ease, the hospital attempted to declare the same thing: It is not responsible for the treatment provided by this particular doctor, period; the doctor is on his own.

¶ 28. Since SPCH’s own representation that Dr. Quesnel is not an employee is contradicted by its employment contract, summary judgment for Dr. Quesnel on this issue was improper. Therefore, I disagree with the majority’s rationale on this matter.

b. Did Wright’s inability to discover the cause of her child’s death toll the MTCA one-year period of limitations?

¶ 29. The majority holds that Wright should have known that there was some causal connection between Dr. Quesnel’s negligence and the death of her child. The majority’s rational in this finding is totally erroneous. It escapes me how the majority can link a causal connection between Wright’s child dying in the womb and the actions of Dr. Quesnel. The doctor ordered Wright bed rest on her first visit, on her second visit she did not receive treatment, and on her third treatment she complained of severe pain resulting in her child dying in the womb. This is clearly not enough information to form a causal connection between the child’s death and the doctor’s negligence.

¶ 30. Wright’s child died in the womb on August 26, 1999. It was not until March, 2001, however, that she claims to have discovered the cause of death, after which time she immediately filed suit against Dr. Quesnel and later against SPCH asserting medical negligence as that cause. Neither suit was filed within the MTCA’s limitations period. Wright claims, however, that the discovery rule should toll that period because she was not able to discover the cause of her child’s death until she received a medical expert opinion provided through her attorney. The circuit court ruled against Wright on this issue, finding that Wright made no claim as to “latent” injuries, nor had she offered evidence that she “could not have” discovered the injury within the applicable statute of limitations. The court further indicated that it could not “say that Wright used reasonable diligence in determining the causal relationship between the alleged negligence and the death of the child.”

¶ 31. The MTCA allows one year from the date of injury during which a plaintiff must file a complaint against a physician or hospital thereunder covered. Miss. Code. Ann. § 11-46-1-23 (2002). However, in Barnes v. Singing River Hospital Sys., 733 So.2d 199 (Miss.1999), this Court held that the discovery rule applies to . the statute of limitations governing MTCA actions against state agencies. Id. at 205. Specifically, we held that the statute of limitations did not begin to run in that case until the medical expert notified the Barneses’ attorney of possible negligence. Id. at 206. Specifically, although the Barneses were aware of the injuries before the one year time limit was up, we found that they could not have reasonably known that the hospital was responsible “until their medical expert notified them of the possible negligence.” Id. We concluded:

Because we find that the Barnes promptly filed their claim within one year of discovery of Singing River’s alleged negligence in this case, we must reverse the trial court’s award of summary judgment and remand this case....

Id. at 201 (emphasis added). We relied on Smith v. Sanders, 485 So.2d 1051 (Miss.1986), in Barnes to justify our holding, citing that portion of Sanders which reads as follows:

There may be rare cases where the patient is aware of his injury prior to the [expiration of the limitations period], but does not discover with reasonable diligence the act or omission which caused the injury. In such cases, the action does not accrue until the latter discovery is made.

Sanders, 485 So.2d at 1052-53. As mentioned, here Wright claimed that although she was aware of the death of her child on the date of death, she was not able to discover the cause thereof until she was so informed by her attorney’s medical expert. This was the identical basis for holding that the limitations period in Barnes was tolled. Barnes, 733 So.2d at 206.

¶ 32. The circuit court considered Wright’s argument in light of both Barnes and Sanders, but concluded that “this is not one of those rare cases our court has referenced to in Barnes.” Based on Barnes, however, I disagree with the majority’s holding and find that this is an issue of fact as to this matter as well. Whether a case is “rare” or whether the plaintiff has exercised “reasonable diligence” are not matters of law. Id. Accordingly, as was the result in Barnes, I cannot agree with the majority’s finding that summary judgment was proper.

¶ 33. The majority’s holding and reasoning in the case at bar are misplaced. Having found that genuine issues of material fact exist as to (1) Dr. Quesnel’s employment status, based on explicit conflicts between his employment contract and SPCH’s statement in its “Conditions of Admission Form” that he is not its employee, and (2) whether the MTCA’s statute of limitations was tolled due to Wright’s inability to discover the cause of the death of her unborn child within that period, I would reverse the trial court’s judgment and remand this case for further proceedings. Therefore, I respectfully dissent.

      . According to the American College of Obstetrics and Gynecology, preeclampsia, a treatable condition, is characterized by high blood pressure, fluid retention and protein in the urine. Since preeclampsia can severely restrict the flow of blood to the placenta, it can be quite dangerous for a developing baby. If it’s not treated it can develop into eclamp-sia, a serious condition that can cause convulsions. Eclampsia can be very dangerous for a mother and her unborn child.

      . Wright did not contest the fact that SPCH is a community hospital and therefore a political subdivision of the State of Mississippi. As such, its liability is clearly governed by the MTCA.


text:
    James Claudy FELDER v. STATE of Mississippi.
    No. 2002-CP-00325-SCT.
    Supreme Court of Mississippi.
    July 1, 2004.
    Appellant, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
   COBB, Presiding Justice,

for the Court:

¶ 1. In this appeal from the denial of post-conviction relief by the Pike County Circuit Court, we consider whether the trial court erred in denying James Claudy Felder’s claims that his guilty plea was involuntary and his sentence excessive and unconstitutional. We affirm the trial court’s decision as to Felder’s guilty plea and claim of ineffective assistance of counsel as well as the upholding of Felder’s sentence of twenty years and a $10,000 fine. We also affirm the trial court’s ordering Felder to pay an assessment to the Mississippi Crime Victims’ Fund; however, we remand for clarification of the amount to be paid.

FACTS

¶ 2. James Claudy Felder was indicted for felony murder by a Pike County Grand Jury, and he subsequently entered a plea of guilty to manslaughter. At sentencing, the circuit court imposed upon Felder a term of 20 years in prison, payment of a $10,000 fine and an assessment of $10,000 into the Mississippi Crime Victims’ Compensation Fund, which would include reimbursing the Crime Victim Compensation Fund for “$2,891 of funeral expenses for the victim.” The trial court order, however, sets out that Felder was ordered to pay only $1,000 to the Mississippi Crime Victims’ Compensation Fund. Subsequently, Felder filed a motion for post-conviction collateral relief asserting that his plea was involuntary, that he was denied effective assistance of counsel and that his sentence was excessive. The circuit court denied the claims noting that Felder was specifically advised of the maximum sentence that could be imposed and that he expressed complete satisfaction with his attorney.

¶ 3. Felder now appeals the denial of his post-conviction motion asserting the same claims here as he did in the trial court. In this appeal, we consider whether the circuit court erred in denying Felder’s motion for post-conviction relief. We affirm on all issues except the amount to be paid into the Mississippi Crime Victims’ Compensation Fund, and remand for the limited purpose of clarification of the amount to be paid.

ANALYSIS

¶ 4. When reviewing a trial court’s decision to deny a petition for post-conviction relief, this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. Brown v. State, 731 So.2d 595, 598 (Miss.1999). However, where questions of law are raised the applicable standard of review is de novo. Id. at 598.

¶ 5. First, Felder asserts that the trial court erred in denying his motion for post-conviction relief because his guilty plea was involuntary and his attorney was ineffective. Felder argues that he pled guilty only after his attorney assured him that he would not get the maximum sentence of 20 years in prison. Based on our review of the transcript of the plea colloquy, and the trial court’s order, it is clear that the trial court judge thoroughly examined Felder and correctly found that Felder understood the consequences of his guilty plea and understood the maximum penalty could be imposed. It is also clear that the trial court observed that Felder was competent to understand and did understand the consequences of his guilty plea and that the plea was knowingly, voluntarily and intelligently made. Furthermore, the trial court found that Felder had been represented by counsel at each stage of the proceedings and that he expressed satisfaction with his attorney’s representation. Because we find no error in the trial court’s denial of Felder’s post-conviction relief claim, we will not disturb that part of the order.

¶ 6. Felder’s final argument is that his sentence is unconstitutional and/or violates Mississippi law. The record reveals that the circuit court sentenced Felder to twenty (20) years imprisonment. The court also ordered Felder to pay $10,000 to the Mississippi Crime Victims’ Compensation Fund and a $10,000 fine. Felder argues that the trial court lacked authority to sentence him to 20 years and to impose a $10,000 fine and a $10,000 assessment to the Crime Victims’ Compensation Fund. As will be explained below, we disagree with Felder’s classification of the amount to be paid into the Mississippi Crime Victims’ Compensation Fund as “restitution.”

¶ 7. So long as the sentence imposed is within the statutory limits, sentencing is generally a matter of trial court discretion. Green v. State, 631 So.2d 167, 176 (Miss. 1994); Wallace v. State, 607 So.2d 1184, 1188 (Miss.1992). The Court must first decide whether Felder’s sentence is within the statutory limits imposed upon conviction for manslaughter, by Miss.Code Ann. § 97-3-25 (Rev.2000), which reads:

Any person convicted of manslaughter shall be fined in a sum not less than five hundred dollars, or imprisoned in the county jail not more than one year, or both, or in the penitentiary not less than two years, nor more than twenty years.

Thus under that general manslaughter penalty statute, Felder could have been fined OR he could have been sentenced to twenty years in the penitentiary, but not both. However, to answer the question of whether Felder’s sentence is lawful, there is another statute that we must also consider. In 1985, the Legislature enacted Miss.Code Ann. § 99-19-32(1) which provides:

Offenses punishable by imprisonment in the State Penitentiary for more than one (1) year and for which no fine is provided elsewhere by statute may be punishable by a fine not in excess of Ten Thousand Dollars ($10,000.00). Such fine, if imposed, may be in addition to imprisonment or any other punishment or penalty authorized by law.

¶ 8. Based on the application of these two statutes, we hold that where the sentence imposed is of a term of imprisonment in the penitentiary, the fine provision of § 97-3-25 is not applicable, and because it is not applicable, § 97-3-25 effectively has no provision for a fine in such a circumstance. Where, as here, the offense is punishable by imprisonment in the penitentiary for more than one year and the imposition of a fíne is not provided elsewhere, § 99-19-32(1) is applicable to impose a fine not in excess of $10,000. Because Felder’s sentence is within the statutory limits, and we find no indication that the trial court abused its discretion, we find no error in the imposition of the twenty-year sentence and the $10,000 fine.

¶ 9. On the issue of the trial court’s assessing Felder the sum of $10,000 to be paid into the Mississippi Crime Victims’ Fund, we find it necessary to examine yet another statute. Miss.Code Ann. § 47-7-49 states, in pertinent part:

When a person is convicted of a felony in this state, in addition to any other sentence it may impose, the court may, in its discretion, order the offender to pay a state assessment not to exceed the greater of One Thousand Dollars ($1,000.00) or the maximum fine that may be imposed for the offense, into the Crime Victims’ Compensation Fund created pursuant to Section 99-41-29.

In viewing the above-cited statutes in pari materia, the trial court was within its discretion to order Felder to pay a $10,000 assessment to the Crime Victims’ Compensation Fund. However, because there is a discrepancy between the amount reflected in the transcript and the subsequent sentencing order, this matter is remanded for the limited purpose of clarification of the amount to be paid to the fund.

CONCLUSION

¶ 10. We find no error in the trial court’s denial of Felder’s motion for post-conviction relief as to the claims of an involuntary guilty plea and ineffective assistance of counsel. We further find no error in the trial court’s imposition of a term of twenty years in prison, a $10,000 fine, and a $10,000 assessment to the Mississippi Crime Victims’ Compensation Fund; however, we remand this matter for the limited purpose of clarifying the amount that Felder is to pay to the Mississippi Crime Victims’ Fund.

¶ 11. AFFIRMED IN PART AND REMANDED IN PART.

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