author: GRAVES, Justice, for the Court. SMITH, Presiding Justice,

text:
    MISSALA MARINE SERVICES INC. v. Jenny Kay ODOM.
    No. 2000-CA-01192-SCT.
    Supreme Court of Mississippi.
    June 12, 2003.
    Rehearing Denied Nov. 13, 2003.

      Gary L. Roberts, Gautier, for appellant.
    Kimberly Golden Gore, W. Lee Watt, Jackson, for appellee.
    Before McRAE, P.J., EASLEY and GRAVES, JJ.
   GRAVES, Justice, for the Court.

¶ 1. This civil action is an appeal by Missala Marine Services, Inc. (Missala) following a jury verdict rendered in the Circuit Court of Jackson County, Mississippi. The judgment awarded Jenny Kay Odom compensatory damages of $120,000 and punitive damages of an additional $120,000. An amended final judgment added attorney’s fees and expert witness fees, increasing the total judgment in Odom’s favor to $318,797.90. Aggrieved by those judgments, Missala appeals and raises the following issues:

I. WHETHER THE TRIAL COURT ERRED BY FAILING TO DISMISS THE CASE.
II. WHETHER ODOM PROVED DAMAGES AS A RESULT OF MIS-SALA’S MISMANAGEMENT.
III. WHETHER THE TRIAL COURT ERRED IN ALLOWING INCONSISTENT CLAIMS TO BE SUBMITTED TO THE JURY.
IV. WHETHER THE TRIAL COURT ERRED BY PERMITTING THE JURY TO CONSIDER PUNITIVE DAMAGES.
V. WHETHER THE TRIAL COURT ERRED IN REFUSING TO DISMISS ODOM’S CLAIM FOR MISMANAGEMENT.
VI. WHETHER THE TRIAL COURT IMPROPERLY AWARDED ATTORNEY’S FEES AND EXPERT WITNESS FEES.
VII. WHETHER THE COURT ERRED BY GRANTING JURY INSTRUCTIONS 4, 5, 6, 7, 7A, 8, 8A AND REFUSING INSTRUCTIONS D-l, D 11-A AND D-13A.

FACTS

¶2. Missala Marine Services, Inc. is a closely held corporation, originally incorporated in 1982 by brothers, Charles and Robert Graham. At the time of the corporation’s formation, Charles and Robert had been involved together in many business enterprises, primarily in the marine or seafood industry, with Charles generally having an 80% interest and Robert having a 20% interest. After incorporating Mis-sala, Charles decided to use the business for the benefit of their children. The original stock certificates were issued to Charles and Robert’s children in an 80/20 split. Charles’s five children received an 80% interest in Missala split equally, so each child owned a 16% interest in Missa-la. Likewise, Robert’s two daughters each received a 10% interest in Missala. One of Robert’s daughters is Jenny Kay Odom. Charles’s son, David Graham (“David”), served as President of Missala.

¶ 3. Thereafter, Missala purchased Offshore Anglers, Inc., becoming its parent company and sole shareholder. In 1987, Offshore Anglers acquired a $250,000 loan from AmSouth Bank in Mobile, Alabama, using two shrimping vessels, the Mr. Choper and the Miss Julie, as security. AmSouth required and received personal guarantees on the loan from all seven of Missala’s shareholders. In 1992, a balloon payment on the loan became due, and Mis-sala decided to refinance the loan. Suzie Mestayer (“Suzie”), Charles’s daughter, secretary of Missala, and a 16% shareholder, approached Odom to have her sign a personal guarantee for the refinancing. Suzie told Odom that the personal guarantee was for $250,000, the amount of the original loan, although Missala was refinancing the loan for just over $100,000. When Odom informed Suzie that she was uncomfortable with signing a personal guarantee, Suzie told Odom that she had previously signed a personal guarantee for the original loan. Odom was upset to learn what she had done because she felt as though she would have remembered signing a personal guarantee for such a large sum of money.

¶ 4. Odom spoke to her father, Robert, and her sister, Julie Parr (“Julie”), about the refinancing, and Robert agreed to accept transfer of Odom’s shares and sign the personal guarantee. Charles drafted a proposed letter and faxed it .to Odom. Odom typed that letter, signed it, and sent it to AmSouth. Odom’s letter, as drafted by Charles, stated that she had transferred her shares to Robert. Robert also sent a letter, stating that he had just accepted the transfer of Odom’s 10% interest and would sign the personal guarantee for the refinancing. Robert contacted Am-South again before the refinancing was complete. Robert then learned that Am-South sought only a personal guarantee for the amount of the loan. The bank did not require shareholders to sign a personal guarantee. Since the letter to AmSouth had been unnecessary, Odom maintained control of her 10% interest. Odom continued acting as a Missala shareholder, but she never retracted the letter to AmSouth.

¶ 5. In 1994, Graham Enterprises began experiencing financial difficulties. On September 8,1995, Robert received notice of a meeting of Gulf City Seafoods’ shareholders and directors. The agenda stated that the board of directors and shareholders of Gulf City Seafoods needed to ratify the transfer of Sea-Fab, Inc. and Sea Savage Offshore, Inc., two of Graham’s wholly-owned subsidiaries, to Missala. Robert did not attend the meetings. Charles, however, did attend the meeting, and the directors and shareholders of these companies ratified their respective transfers. Missala, which had previously been a dormant holding company, now owned $3 million in real estate, which it purchased for $1.4 million, and two more companies, which it purchased for $600,000. Missala received all of these transfers at significantly less than market value. Robert later received a copy of Graham’s minutes effecting the transfer of the real estate and two subsidiaries dated September 1, 1994, thirteen months prior to Graham’s and Gulf City Seafoods’ shareholders approved the transfers.

116. Robert resigned his employment at Gulf City Seafoods, effective November 15, 1995. Shortly thereafter, David notified Odom, a 10% Missala shareholder, of a Missala shareholder meeting to be held on October 9, 1995. Odom’s sister, Julie, also a 10% shareholder, was unable to attend, so she gave her proxy to Robert. On October 9, 1995, as Robert was leaving his office to pick Odom up for the meeting, Charles, who Missala admits had no interest in Missala as a shareholder, told him that “we,” meaning he and his five children, had just determined who the Missala shareholders were. Charles stated that Robert owned the shares in Missala and that Odom was not a Missala shareholder and would not be allowed to attend the meeting.

¶ 7. Despite Charles’s comments, Robert brought Odom to the shareholders’ meeting. At which time, David told Odom and Robert that Odom was not a shareholder and would not be allowed to attend the meeting. David then asked Robert to sign a waiver of notice to allow the meeting to continue. Robert refused so the shareholder meeting was cancelled.

¶ 8. In the fall of 1995, Odom spoke with Lee Watt, her present counsel, about her 10% interest in Missala and Missala’s refusal to allow her to attend its shareholder meetings. Watt attempted for six months to persuade Missala to recognize Odom as a rightful owner of a 10% interest in the Missala. Approximately six months thereafter, Odom filed this suit against Missala claiming that the corporation had acted wrongfully to freeze her out of her 10% ownership interest.

¶ 9. Missala maintained that Odom was not a proper shareholder. During the course of litigation, the trial court, on Odom’s motion to compel production of corporate records, ordered Odom and Robert to sign affidavits regarding their ownership in the company. Odom and Robert complied with the court’s directive, stating that Odom owned the shares. In response, David, Missala’s president and a 16% shareholder, presented Odom with a stock certificate dated July 1997.

¶ 10. The case proceeded to trial, the jury rendered a verdict against Missala but for Charles Graham. The jury awarded Odom $120,000 in compensatory damages and $120,000 in punitive damages. On Odom’s post-trial motion, the trial court determined that the attorney’s fees were reasonable. The final judgment awarded to Odom was $318,797.90.

DISCUSSION

FAILURE TO DISMISS

¶ 11. Missala argues that the trial court erred by failing to dismiss the case due to Odom’s failure to state a cause of action upon which relief could be granted. Since issues one and five are interrelated they will be discussed simultaneously.

¶ 12. Miss. R. Civ. P. 12(b)(6) stipulates that a motion to dismiss should not be granted unless it appears beyond a reasonable doubt that the plaintiff will be unable to prove any set of facts in support of the claim. In the instant case, Odom presented several claims against Missala for the trial court’s consideration: corporate freeze out, mismanagement, conspiracy, negligence, breach of fiduciary duty, and fraud. The trial court having heard compelling arguments of counsel found that “the motion is not well taken and should be denied.” The trial court determined that although many of the issues were aggressively contested, there was some evidence above a scintilla that required consideration.

¶ 13. Missala asserts that the trial court erred in its refusal to dismiss Odom’s alleged claim of mismanagement. Missala argues that there is no cognizable cause of action under Mississippi law for mismanagement per se.

¶ 14. The granting of motions to dismiss is subject to the discretion of the trial court. Roebuck v. City of Aberdeen, 671 So.2d 49, 50 (Miss.1996). “The Supreme Court can reverse trial court’s grant of motion to dismiss only when there has been an abuse of discretion.” Id.

¶ 15. In reviewing the record, we find there was compelling evidence presented by Odom. Additionally, there was no abuse of discretion by the trial court. For these reasons, we find no reversible error.

FAILURE TO PROVE DAMAGES

¶ 16. Missala contends that Odom had an affirmative duty to provide support for her contention of damages and failed. Missala argues that the trial court committed error by permitting the jury to consider punitive damages. Since issues two and four are interrelated they will be discussed simultaneously.

¶ 17. In order for damages to be awarded, Odom was required to provide substantial proof to the jury so it could have a reasonable basis to assess her loss. Purina Mills, Inc. v. Moak, 575 So.2d 993, 998 (Miss.1990). The record reflects that Odom presented proof to the court through lay witness testimony, expert witness testimony and documentation.

¶ 18. Odom’s expert witness, Jerry Le-vens, presented evidence on the current value of Missala’s stock at the time of the trial. Levens testified that based on recent valuations of Missala, he conservatively valued the worth of the corporation at $3.55 million. Therefore, Odom’s 10% interest in Missala was worth $355,000. Le-vens based his testimony on documents in evidence. This testimony, along with the documents in evidence, provided the jury with ample evidence of the amount of damages to which Odom was entitled.

¶ 19. Moreover, Missala accepted Le-vens’s estimate that Missala had a net worth of $3.55 million. Missala’s own expert witness, Ken Lefoldt, agreed that Le-vens had valued the company properly and conservatively. Lefoldt simply testified that the value of Odom’s 10% share in Missala should be reduced for two reasons: (1) Missala is a closely held corporation, so the stock was less marketable than publicly traded stock and (2) Odom’s 10% interest was a minority interest, so the lack of control associated with that 10% diminished the stock’s value. Lefoldt concluded that the 10% interest was not worth $355,000, but rather $120,000. Nonetheless, Missala recognized Odom’s interest, which warranted damages although the actual amount of damages was still at issue. Based upon the expert testimony of Le-vens and Lefoldt and the documents in evidence, the jury had sufficient proof provided as to the value of a 10% interest in Missala.

¶ 20. Due to Missala’s mismanagement, Odom’s 10% interest in Missala lost some of its value. Levens, in his valuation of the stock for purposes of determining the value of Odom’s 10% interest for assessing damages on her freeze out claim, also included the valuation of the I’m Alone, an asset that Missala sold in December 1998 for $450,000. Levens valued the I’m Alone at $650,000; however, his valuation included only the value of the I’m Alone as a vessel and not the value of the income gained from use of the I’m Alone as a charter boat. Although Missala alleged that the sale was a solid business decision, Lefoldt, Missala’s expert witness, agreed that the $200,000 allocated for the sale of the I’m Alone should be included in the valuation. Therefore, Missala’s own expert resolved that the I’m Alone was sold for significantly less than its actual value.

¶ 21. Additionally, Odom provided evidence that Missala had mismanaged assets by assigning Charles and Robert a right of first refusal on a valuable piece of property at no cost. This evidence was ample to create an issue of fact for the jury on Odom’s claim of mismanagement. The trial court properly submitted the mismanagement claim to the jury. The jury’s verdict was within the bounds of its discretion and was not so excessive as to evince bias, passion, or prejudice. This Court has stated that it will not overturn a jury’s verdict unless no reasonable juror could find damages in the amount that the jury awarded. Wal-Mart Stores, Inc. v. Johnson, 807 So.2d 382, 389 (Miss.2001). Based upon the evidence presented by expert testimony as. to Missala’s valuation, the jury’s verdict of $120,000 compensatory damages was reasonable. In proving evidence of mismanagement, Odom had also proven damages. We find no manifest error by the trial court.

¶22. The evidence presented and the claims that Odom asserted against Missala are appropriate claims for which punitive damages may be sought. Corporate freeze out is an intentional tort that is committed with willful and wanton disregard for the right of the shareholder who is frozen out. Odom asserted in her complaint and presented evidence at trial that Missala committed gross negligence by breaching its fiduciary duty to her as a minority shareholder and not permitting her to participate as a shareholder. Both are claims for which punitive damages can be awarded in Mississippi. Because Odom presented evidence sufficient to create issues of fact for the jury on these claims* the judge was well within his discretion to allow the jury to consider an award of punitive damages. MIC Life Ins. Co. v. Hicks, 825 So.2d 616, 617 (Miss.2002). For these reasons, we find no error.

REQUEST FOR SPECIAL VERDICT FORM

¶23. Missala asserts that it was error for the trial court to allow multiple inconsistent claims to be submitted to the jury on a general verdict. Missala argues a special verdict or a general verdict accompanied by answers to interrogatories is more appropriate.

¶ 24. According to the Miss. R. Civ. P. 49(b), “the court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact ... the court, in its discretion, may submit to the jury, together with instructions for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict.” Previously, this Court has held that the decision to instruct the jury by means of a special verdict or a general verdict with interrogatories is within the discretion of the trial court and will be overturned only on a showing that the lower court abused its discretion. W.J. Runyon & Son, Inc. v. Davis, 605 So.2d 38, 49 (Miss.1992), overruled on other grounds, Richardson v. APAC-Miss., Inc., 631 So.2d 143 (Miss.1994).

¶25. The record contains no request by Missala of either a special verdict or a general verdict with interrogatories. At the hearing on Missala’s motion for a new trial, the trial court addressed this issue, stating that “if either side had requested special interrogatories, I would have certainly considered that. But neither side requested any special interrogatories on the issue of damages as to the particular claims, and, therefore, the jury was instructed as requested by the parties.” Failure to object to an instruction at trial bars that issue on appeal. Jones v. State, 776 So.2d 643, 653 (Miss.2000). We find no error because the trial court acted within its discretion and Missala failed to object at trial.

AWARD OF ATTORNEY’S FEES AND COSTS

¶ 26. Missala argues that the trial court erred in granting an award of attorney’s fees and expert witness fees. Missala argues that it has a constitutional right to a jury trial on any disputed fact question, including Odom’s claim for attorney’s fees and costs. Missala further contends that the trial court erred in awarding attorney’s fees by means of a post-trial motion.

¶ 27. It is proper for the trial court to hold a hearing after the trial of the case to hear evidence on the issue of attorney’s fees. Smith v. Dorsey, 599 So.2d. 529, 550 (Miss.1992). At the hearing, the trial court determined that the amount of attorney’s fees requested was reasonable but took the decision whether to award those fees under advisement. Ultimately, the trial court found that an award of attorney’s fees was appropriate because it determined that punitive damages were appropriate and because the jury awarded Odom punitive damages.

¶ 28. This Court has held that the trial court is the appropriate entity to award attorney’s fees and costs. Turner v. Terry, 799 So.2d 25, 39 (Miss.2001). A trial court’s decision on attorney’s fees is subject to the abuse of discretion standard of review. Id. at 39. Missala has presented no evidence that either the decision to award attorney’s fees and expenses or the measure of that award were an abuse of the trial court’s discretion.

¶ 29. Missala’s contention that the trial court erred in awarding attorney’s fees in a post-trial motion is meritless. The record reflects that the motion was appropriate because the complaint and amended complaint specifically prayed for attorney’s fees and costs.

¶ 30. For these reasons, we find no error and uphold the award of attorney’s fees and costs.

JURY INSTR UCTIONS

¶ 31. Missala asserts that the trial court erred by granting instructions 4, 5, 6, 7, 7A, 8 and 8A and refusing instructions D-1, D-11A and D-13A.

¶ 32. Missala contends jury instructions 4, 5, 6, 7, 7A, 8 and 8A should not have been submitted to the jury for consideration. The record reflects that Missala did not object to any of the referenced instructions. Therefore, Missala has failed to preserve this issue for appeal. Lucas v. Miss. Housing Auth. No. 8, 441 So.2d 101, 105 (Miss.1983). Moreover, “[i]t is the rule of this Court that no assignment of error based on the giving of an instruction to the jury will be considered on appeal unless a specific objection was made to the instruction in the trial court stating the particular ground or grounds for such objection.” Watson v. State, 483 So.2d 1326, 1329 (Miss.1986).

¶ 33. Missala asserts that proposed jury instructions D-l, D-11A and D-13A should have been granted. The standard of review for challenges to jury instructions is as follows:

[T]he instructions are to be read together as a whole, with no one instruction to be read alone or taken out of context. A .defendant is entitled to have jury instructions given which present his theory of the case. However, the trial judge may also properly refuse the instructions if he finds them to incorrectly state the law or to repeat a theory fairly covered in another instruction or to be without proper foundation in the evidence of the case.

Humphrey v. State, 759 So.2d 368, 380 (Miss.2000).

¶ 34. Missala complains of the trial court’s refusal of D-l, which reads as follows:

■ The court instructs the Jury to find for the Defendant, Missala Marine Services, Inc.

We find that this instruction contains no statement of the law and is a peremptory instruction. Consequently, this assignment of error is without merit.

¶ 35. Missala next complains of refused instructions D-11A and D-13A.

¶ 36. Refused instruction D-11A states: If you find for the Plaintiff in this-cáse, you are not authorized to find for the plaintiff for any. amount beyond reasonable compensation for the damages sustained by the Plaintiff, if any. You are not authorized to award any damages in the nature of a penalty or attorney’s fees, nor are you bound by any estimates of damages made by the attorneys representing the parties in this suit. You are not authorized to award damages based upon the alleged value of the shares of stock of the Defendant, Missala Marine Services Corporation. If you find for the Plaintiff, you must therefore confíne your verdict to reasonable compensation for the damages actually sustained, if any, by the Plaintiff as a result of the conduct of the Defendant or Defendants.
¶ 37. Refused instruction D-13A states: If you are to determine that the Plaintiff has successfully proved the elements of her claims and that she is entitled to recovery in this case, you are limited to compensating the Plaintiff through an award of monetary damages in this court. By choosing to bring her claims in this court, Plaintiff has requested that she be compensated through the award of money and not through any equitable relief which you may deem- appropriate. In other words, you are not to consider whether or not the company should be dissolved or liquidated or Plaintiff should transfer or sell her stock or be given certain rights in the company. A plaintiffs offer to transfer her shares cannot be ordered. The only award in favor of the Plaintiff which you or his court can give is money damages.

¶ 38. We find that the trial judge refused these instructions because he believed that the jury would be fairly instructed by all of the instructions as a whole. The trial judge gave instructions 8 and 8A, which were comprehensive damages instructions. Consequently, we find this assignment of error is without merit.

CONCLUSION

¶ 39. For the reasons indicated above, we affirm the judgment below.

¶ 40. AFFIRMED.

McRAE, P.J., DIAZ, EASLEY AND CARLSON, JJ., CONCUR. SMITH, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY PITTMAN, C.J, WALLER AND COBB, JJ.

SMITH, Presiding Justice,

concurring in part and dissenting in part.

¶ 41. I concur in the affirmance of the award of compensatory damages only. However, I respectfully dissent from the affirmance of the awards of punitive damages and attorney’s fees and expert witness fees. The majority states that a claim of corporate freeze out can support a punitive damages claim. Perhaps this is so when the directors of a corporation act in an egregious manner. Punitive damages are available in cases of gross negligence, willful misconduct, fraud, malicious conduct, or reckless disregard for the rights of others. Hurst v. Southwest Miss. Legal Servs. Corp., 708 So.2d 1347, 1350 (Miss.1998); Richardson v. Byrd, 215 So.2d 424, 425 (Miss.1968). However, punitive damages are only to be allowed in extreme cases. Beta Beta Chapter of Beta Theta Pi Fraternity v. May, 611 So.2d 889, 894 (Miss.1992).

¶42. In the case at bar, there was a genuine issue as to who was the proper owner of the stock in Missala Marine Services, Inc. (“Missala”). David Graham (“David”) had knowledge of letters to Am-South Bank, signed by Jenny Kay Odom (“Odom”), indicating the stock in question had been transferred from Odom to her father. Given the uncertainty surrounding the owner of the stock, it was not gross negligence to refuse to allow Odom to participate as a shareholder. Similarly, Mis-sala cannot, as the majority asserts, be grossly negligent in breaching a fiduciary duty to a shareholder when there is a real question as to whom that duty is owed.

¶ 43. Good faith is a defense to a punitive damages claim. Walker v. Brown, 501 So.2d 358, 363 (Miss.1989). Here, there is evidence that David acted in good faith to protect the interests of the corporation when he did not allow an individual he did not feel was a shareholder to participate in corporate activities. David’s understandable (though ultimately incorrect) refusal to allow Odom’s participation should not support a claim for punitive damages. Punitive damages are not appropriate when the wrong results from an honest mistake. The mere fact that the case at bar involves a claim of corporate freeze out does not automatically mean that punitive damages can be awarded. There must be egregious behavior by the wrongdoer to support punitive damages. David’s actions do not rise to this level.

¶ 44. Missala’s allegation that it is entitled to a jury trial regarding the award of attorney’s fees and expert witness fees is without merit. However, since Missala’s behavior did not merit an award of punitive damages, I agree that the attorney’s fees and the expert witness fees granted by the trial court to Odom are not appropriate. Thus, I respectfully concur in part and dissent in part and would reverse and render both the punitive damages and award of attorney’s fees and expert witness fees.

PITTMAN, C.J., WALLER AND COBB, JJ., JOIN THIS OPINION.


source: Caselaw Access Project

author: McRAE, Presiding Justice, for the Court. PITTMAN, CHIEF JUSTICE, COBB, JUSTICE,

license: Public Domain

text:
    Ruby Lorene BICKHAM, as the Administratrix for the Estate of Tamara Bickham; Christopher Matthew Bickham; and Christopher Matthew Bickham, II, A Minor, by and Through his Next Friend, Christopher Matthew Bickham, v. Dr. Fred Y. GRANT, Dr. John S. Harris, Rush Foundation Hospital and Rush Medical Group, P.A.
    No. 97-CT-01639-SCT.
    Supreme Court of Mississippi.
    Sept. 11, 2003.

      James A. Williams, Brookhaven, attorney for appellants.
    Mark P. Caraway, Jackson, William B. Carter, Canton, attorneys for appellees.
   McRAE, Presiding Justice, for the Court.

¶ 1. The heirs and estate of Tamara Bickham (collectively “Bickham”), deceased, filed this medical negligence case in the Circuit Court of Lauderdale County, Mississippi against Dr. Fred Y. Grant (“Dr.Grant”), Dr. John S. Harris (“Dr.Harris”), Rush Medical Group, P.A. (“Rush Group”), and the Rush Foundation Hospital (“Rush Hospital”) (collectively “Defendants”). The jury found for the Defendants, judgment was entered in accordance with that verdict, and the trial court denied Bickham’s motion for a JNOV or a new trial. The Court of Appeals initially affirmed the trial court’s judgment. However, on motion of rehearing, the Court of Appeals conducted an extensive review, withdrew its prior opinion, and reversed and remanded for retrial limited to the Bickham’s claims against Dr. Grant, Dr. Harris, and Rush Group. The Court of Appeals found that the trial court granted erroneous jury instructions regarding the standard of care. Bickham v. Grant, 2001 WL 570018 (Miss.Ct.App.2001). On writ of certiorari, we affirm the Court of Appeals as to its reversal and remand for a new trial against Dr. Grant, Dr. Harris, and Rush Group based on the erroneous jury instructions and its affirmance of the judgment in favor of Rush Hospital.

FACTS

¶ 2. A week after giving birth to her son, Tamara Bickham began having difficulties. She sought treatment in the emergency room of the Rush Hospital on three separate occasions within a week period. Dr. Grant was the obstetrician-gynecologist on call during Bickham’s last visit to the hospital on October 22, 1991. Bickham was admitted to the hospital and was diagnosed with endometritis, an inflamation of the inner layer of the uterine wall.

¶ 3. After two days of treatment, Dr. Grant discovered a blood clot in Bickham’s leg and prescribed Heparin. Dr. Grant monitored Bickham’s condition through the use of a partial thromboplastin time test (“PTT”) which compares the time it takes the patient’s blood to clot with the clotting time for a control patient.

¶ 4. During treatment, Bickham complained of difficulty breathing, leg pain, and chest pain. Her PTT scores were an average of 53, with an average score for the control group at 32. Twelve days after treatment began, Bickham’s conditioned worsened. Dr. Harris was on call during this time. He immediately called Dr. Grant back to the hospital.

¶ 5. On November 3, a nurse noticed Bickham had labored breathing. Dr. Grant then ordered a lung scan which revealed a large pulmonary embolus blocking the left lung and the lower lobe of the right lung. Dr. Grant immediately transferred Bickham to the University Medical Center (“UMC”). At UMC, Bickham underwent surgery to insert a “filter” or “basket” to prevent further blood clots. The treatment proved unsuccessful, and Bickham died on November 10,1991.

¶ 6. Bickham’s husband, individually and as next of Mend of their newborn son, together with the aclministratrix of her estate filed this medical malpractice action against Dr. Grant, Dr. Harris, the Rush Hospital, and Rush Group. After an eight-day trial, the trial judge allowed certain jury instructions to be read to the jury. Instruction C-20, as given to the jury, provided that:

You are instructed that you have heard from the expert witnesses who have testified in the case differing views as to what would be the proper procedures to be followed by Doctors Grant and Harris in their treatment of Tamara Bick-ham. If you find from these opinions that two or more alternative courses of action would be recognized by the profession as being proper and within the standard of are and that Doctors Grant and Harris, in the exercise of their best judgment, elected one of the proper alternatives you should find for Doctors Grant and Harris.

(emphasis added). The jury returned a verdict in favor of the Defendants.

¶ 7. Bickham’s subsequent ■ appeal was assigned to the Court of Appeals. Bick-ham argued that the trial court erred in denying the JNOV motion and in giving Instruction C-20 as it is a subjective instruction and is in conflict with this Court’s holding in Day v. Morrison, 657 So.2d 808 (Miss.1995). Originally, the Court of Appeals affirmed the trial court’s ruling on Instruction C-20. However, on rehearing, the Court of Appeals extensively reviewed the record, withdrew its prior opinion, and reversed and remanded for retrial limited to the Bickham’s claims against Dr. Grant, Dr. Harris, and Rush Group determining that the trial court had granted an erroneous jury instruction on the standard of care. A petition for writ of certiorari was filed by the Defendants wherein they claim that the the Court of Appeals erroneously found Instruction C-20 to be reversible error.

DISCUSSION

¶ 8. Jury instructions are to be read as a whole. Southland Enterprises, Inc. v. Newton County, 838 So.2d 286, 289 (Miss.2003). The trial judge has considerable discretion in instructing the jury. Id. (citing Splain v. Hines, 609 So.2d 1234, 1239 (Miss.1992)). A defendant is generally entitled to an instruction which presents his side of the case; however, such instruction must correctly state the law. Humphrey v. State, 759 So.2d 368, 380 (Miss.2000) (citing Heidel v. State, 587 So.2d 835, 842 (Miss.1991)). Furthermore, “[i]t would be error to grant an instruction which is likely to mislead or confuse the jury as to the principles of law applicable to the facts in evidence.” Southland Enterprises, 838 So.2d at 289 (citing McCary v. Caperton, 601 So.2d 866, 869 (Miss.1992)).

I. WHETHER THE COURT OF APPEALS ERRONEOUSLY FOUND INSTRUCTION C-20 TO BE REVERSIBLE ERROR.

¶ 9. The Court of Appeals, on rehearing, found Instruction C-20 to be subjective and in conflict with this Court’s holding in Morrison, 657 So.2d 808. The Court of Appeals opined that just as this Court found the jury instruction involved in Morrison to be subjective and misleading, so too was Instruction C-20. The Defendants argue that the Court of Appeals erred in its reasoning. Specifically, they argue that Instruction C-20 merely instructed the jury on alternative treatments as evidenced by conflicting expert testimony and that the facts in Morrison are wholly distinguishable from the present circumstances. Bickham, of course, agrees with the Court of Appeals’ rehearing holding.

¶ 10. In Morrison, the medical malpractice claim instituted by the plaintiff alleged negligence resulting from a penile prosthesis surgery and the defendant doctor’s failure to diagnosis and treat the recurring problems which exhibited themselves as a result of the botched surgery. Id. at 809-11. The facts in Morrison are not distinguishable from the present facts as asserted by the Defendants. The holding in Morrison did not, as asserted by the Defendants, just center around the fact that there was only one method of treatment for the problems exhibited by the plaintiff, the penile prosthesis operation. The negligence claim in Morrison not only dealt with the treatment, meaning the surgery, but also with the care given the plaintiff after the surgery which was claimed to be deficient and amounting to a failure to diagnosis and treat. Id. at 811. Looking at the instructions in Morrison which were at issue, makes it clear that the doctor’s treatment of the plaintiff not only encompassed the surgery itself, but also the seven months of followup treatment the plaintiff received. Id. Ultimately, we held that the trial court erred in allowing a jury instruction in a medical malpractice action which held the physician not liable for a “mere error in judgment.” Id. We rejected “bona fide” or “good faith” judgment jury instructions in medical malpractice actions. Id. Our reasoning was clear. Such instructions create confusion with the jury and subject physicians to a subjective and not an objective standard of care. We also found that such subjective standards could sway a jury to “conclude, incorrectly, that a physician is not liable for malpractice even if he or she is negligent in administering the treatment selected.” Id. at 812 (quoting Riggins v. Mauriello, 603 A.2d 827, 831 (Del.1992)). “The central issue in the ordinary negligence case is whether the defendant has deviated from the required standard of care, not his mental state at the time of the conduct which constitutes the deviation.” Id. at 813 (quoting Logan v. Greenwich Hosp. Ass’n, 191 Conn. 282, 299, 465 A.2d 294, 303 (1983)). Additionally, we stated that:

If this Court were to settle for the “mere error of judgment” language as the controlling law in this state for medical malpractice cases, then most injured individuals could forget recovery. A physician or a professional can always claim he was exercising his own judgment even though he was mistaken or negligent.

Id. at 814 (emphasis added).

¶ 11. Looking at the above language, there is no difference between the statement in Morrison regarding “exercising his own judgment” and “in their best judgment.” It is clear that our decision in Morrison addressed not only the confusion of physician error and actionable liability, but also the inappropriateness of subjective standard jury instructions in medical malpractice actions.

¶ 12. Today, we are faced with a similar instruction, Instruction C-20. Instruction C-20 provides that:

You are instructed that you have heard from the expert witnesses who have testified in the case differing views as to what would be the proper procedures to be followed by Doctors Grant and Harris in their treatment of Tamara Bick-ham. If you find from these opinions that two or more alternative courses of action would be recognized by the profession as being proper and within the standard of care and that Doctors Grant and Harris, in the exercise of their best judgment, elected one of the proper alternatives you should find for Doctors Grant and Harris.

(emphasis added). This instruction provides a subjective standard of care by the doctor regarding his own misdiagnosis. This is clearly what our holding in Morrison forbids. To charge juries with the responsibility of assessing the mental state of treating physicians and to make a determination of liability is preposterous. Not to mention the negative effect such instructions will have on those injured. There is no conceivable way a jury weighing alternative treatments would possibly find physicians negligent for exercising their best judgment.

¶ 13. Instruction C-20’s failure to include the word “error” does not lead to the conclusion that our holding in Morrison is not applicable. Instruction C-20 provides for an “in the exercise of their best judg-" ment” standard of care. The word “judgment” is not in and of itself subjective. The word “judgment” used in connection with other words can certainly constitute a subjective jury instruction, as with' the phrase “in the exercise of their best judgment.” These words together, not alone, are what amounts to a subjective jury instruction.

¶ 14. Furthermore, a subjective jury instruction in a medical malpractice case is a misstatement of law, and as stated earlier a defendant is generally entitled to an instruction that presents his side of the case, if such instruction is a correct statement of the law. Humphrey, 759 So.2d at 380 (citing Heidel, 587 So.2d at 842). The appropriate standard of care in a medical malpractice case is objective and centers around exercising the degree of care, diligence, and skill ordinarily possessed and exercised by a minimally competent and reasonably diligent, skillful, careful, and prudent physician in that field of practice. What the physician may have been thinking in “his best judgment” is irrelevant. What the physician did in treating the patient is the key factor. Patients expect their physician to always be exercising “their best judgment.” However, it is clear that there are times where the physician’s best judgment regarding treatment falls below the applicable standard of care. This is why instructions such as C-20 are misstatements of law as they hold the physician to his own personal standard of care and not the standard of care applicable to physicians in his area of practice.

CONCLUSION

¶ 15. Jury Instruction C-20 is an erroneous instruction as it is a misstatement of law regarding the applicable standard of care and is in conflict with our holding in Morrison. We affirm the Court of Appeals as to its reversal and remand for a new trial against Dr. Grant, Dr. Harris, and Rush Group based on the erroneous jury instructions and its affirmance of the judgment in favor of Rush Hospital.

¶ 16. COURT OF APPEALS’ JUDGMENT AFFIRMED AND CASE REMANDED FOR NEW TRIAL AS TO THE CLAIMS ASSERTED AGAINST DOCTORS GRANT AND HARRIS AND RUSH MEDICAL GROUP, P.A.

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

PITTMAN, CHIEF JUSTICE,

SPECIALLY CONCURRING:

¶ 17. I write today to voice my approval of the analysis of the deficiencies of instruction C-20 found in the plurality opinion. The instruction is indeed defective because it asked questions of the jury that it was not required to answer: e.g. whether an alternative procedure not performed by the doctors here would have provided care which fell below the standard of care we impose on physicians. The jury needed only to consider the much simpler question whether the procedure actually performed here fell below the standard of care. The Court of Appeals correctly noted the confusing nature of C-20 when it stated:

we can discern no logical reason why it likewise would not be improper to give a “best judgment instruction” in instructing the jury regarding a physician’s selection of an allegedly alternative course of action within the standard of care, for in both cases the physician is to be exonerated only if he followed the standard of care, his good judgment or bad judgment notwithstanding.

Bickham v. Grant, 2001 WL 570018, at *2 (Miss.Ct.App.2001) (emphasis added).

¶ 18. Therefore, I agree with the discussion of C-20 found in today’s plurality opinion, but join the remainder of the opinion in result only.

COBB, JUSTICE,

CONCURRING IN PART AND DISSENTING IN PART:

¶ 19. I agree with the affirmance of the judgment in favor of Rush Hospital, but I strongly disagree with the affirmance of the Court of Appeals’ judgment’s reversal based on the trial court’s granting of jury instruction C-20 on the standard of care. Although the jury instruction was inartfully drawn and is not a model instruction to be followed, it is not an erroneous statement of the law and does not conflict with this Court’s holding in Day v. Morrison, 657 So.2d 808 (Miss.1995). The trial court’s granting of C-20 was proper, and thus I believe the Lauderdale County Circuit Court jury verdict should be affirmed.

¶ 20. In many matters which come before this Court, the choice of specific words and their relation to other surrounding words, whether in jury instructions or any other document, can be outcome determinative. The case before us is a good example. The plurality looks to the words “in the exercise of their best judgment” found in C-20, and finds reversible error. With all due respect, I believe that the plurality simply “isn’t seeing the forest for the trees.” Thus I write to distinguish the language found in C-20 from the objectionable language found by this Court in Day v. Morrison, 657 So.2d 808 (Miss.1995).

¶ 21. C-20 states in its entirety:

You are instructed that you have heard from the expert witnesses who have testified in the case differing views as to what would be the proper procedures to be followed by Doctors Grant and Harris in their treatment of Tamara Bick-ham. If you find from these opinions that two or more alternative courses of action would be recognized by the profession as being proper and within the standard of care and that Doctors Grant and Harris, in the exercise of their best judgment elected one of the proper alternatives, you should find for Doctors Grant and Harris.

(emphasis added).

¶ 22. The plurality looks to Morrison, a relatively recent precedent in which this Court held that it was improper to instruct a jury that “a competent physician is not liable per se for a mere error in judgment” or to refer to “good faith error in judgment or honest error in judgment.” Id. at 815. While acknowledging that Morrison was “by no means controlling because the issues are different,” the Court of Appeals unfortunately failed to note that not only were the basic facts entirely different, but also much of what was said therein was dicta. In Momson, unlike the present ease, “there was only one method of correcting the [medical] problem, therefore leaving no room for choice for the physician, and ultimately making a ‘mere error of judgment’ instruction not only unnecessary, but absolutely inapplicable.” Id. at 814 (emphasis added). The remainder of the Morrison opinion, however, cited extensive authority wherein the “mere error of judgment” language in an instruction had been criticized, and although dicta, it is instructive.

¶ 28. A careful review of Morrison reveals that it focused on the confusion that may arise from informing jurors that even if the doctor committed “error”, there still may not be liability. Suggesting that only bad faith negligence — as opposed to good faith error^ — would justify an award of damages, was not a correct statement of the law. Id. However, Morrison reiterated that failure of treatment does not equate to error, and a doctor is not a guarantor of success, citing the Oregon Supreme Court which held that “bad results notwithstanding, if the doctor did not breach the standard of care, he or she by definition has committed no error in judgment. The source of the problem is in the use of the word ‘error’.” Id. at 815 (quoting Rogers v. Meridian Park Hosp., 307 Or. 612, 772 P.2d 929, 938 (1989)). The negligent failure to conform to a standard of care is not proven by a lack of success in treatment. Exempting “errors in judgment” misleads the jury in its duty to distinguish between the physician having merely failed because the treatment was unsuccessful and having negligently failed to conform to a standard of care.

¶ 24. Although the word “judgment” is present in the instruction sub judice, it is not used in the context discussed in Morrison. Morrison pointed out that “reasonable judgment” is not the crucial issue, and stated that “reasonable judgment is irrelevant if the treatment option selected provides reasonable care.” Morrison, 657 So.2d at 814 (quoting Rogers, 772 P.2d at 933). Thus the issue is whether reference to the doctors’ “exercise of their best judgment” in instruction C-20, though potentially irrelevant, is also reversible error. Morrison states that bad judgment in failing even to consider other treatment options does not create liability if the option chosen provided reasonable care. Conversely, good judgment would not insulate a doctor from liability unless it was good judgment in the selecting of a course of action that is within the standard of care. Because the use of the word “judgment” in this instruction was coupled with choosing between different treatment choices that all were within the standard of care, as testified to by expert witnesses, there is no error.

¶ 25. That having been said, I realize that for an analysis of this challenged instruction to be clearly understood, it is important to explain the factual context in which it is presented.

¶ 26. Expert testimony was presented at trial regarding the fact that at the time of Ms. Bickham’s treatment, a transition was occurring which ultimately resulted in a change of the standard of care with regard to use of anticoagulant medications. Thus, in my view, the most significant part of the instruction is the phrase “two or more alternative courses of action.”

¶ 27. Bickham’s principal argument was that the two alternative treatment courses, both being within the standard of care, were not proven by the evidence. Bick-ham argues that there were two diametrically opposed views that simply could not both be considered within the standard of care. Indeed, in the Bickham’s brief is an accusation that the defendants’ experts were committing perjury in expressing the opinions that they did.

¶28. A careful review of the record reveals, however, that this was not the typical “battle of experts” in which each side finds competent physicians to testify regarding the standard of care, with one saying the actions or inactions of the physician were within the standard of care and the other saying they were not. The situation here placed the doctor in the position of deciding which of two accepted standards of care he should follow.

¶ 29. It is important to note what the instruction C-20 did not state. It did not inform the jury that the divergent opinions expressed were, in fact, all within the standard of care. That decision was for the jury. Instead, the instruction indicated that more than one way to treat an ailment might be recognized by reasonable medical professionals “as being proper and within the standard of care.” In addition, it did not state that the jury’s task was to place all of the disagreements between expert witnesses into the “two or more courses of treatment” category or to place none of them. The instruction would have allowed jurors to conclude that some of the disagreements reflected alternative treatments in which both were within the standard of care, and other divergences between expert opinions could not be reconciled. An instruction not challenged on appeal (C — 13) states that jurors must decide if expert opinions “are not sound, or that the opinion is outweighed by other evidence,” and in those events they “may disregard the opinion entirely.”

¶ 30. Three representative examples of what jurors might have considered under either of these instructions are: whether at some stage the doctors should have tested for a blood disorder; whether a PTT score of one and. a half times the baseline, or two and a half times, was the proper ratio; and whether a separate drug should have been administered sooner. The problem with Bickham’s PTT measurements may have been that she suffered from a blood disorder called anti-thrombin-III (AT-III) deficiency. There was testimony from the defendants’ experts that in 1991 when this treatment was occurring; testing for AT-III was not within the standard of care when administering Heparin. Bickham’s doctors indicated that testing for the disorder should have occurred once evidence was gained that Heparin was not succeeding. A specific instruction (C — 17) informed the jury that it was to decide whether failure to discover this disorder was within the exercise of reasonable care.

■ ¶ 31. There was expert testimony that in 1991 the proper method for administering Heparin therapy was to maintain a PTT score of one and a half to two times the control value. That ratio was maintained here. There was also testimony that beginning in 1991 a significant clinical trial was undertaken at forty medical universities to determine what the proper ratio should be. A control group that was maintained on that baseline was part of the experiment, while other groups received higher dosages. These were two different treatment programs, two regimens, that the jury properly could find were both within the standard of care. Doubts may have existed that led to the clinical trials, but that does not mean that only one approach was within the standard of care.

¶ 32. With that evidentiary background, examination of the validity of the instruction’s reference to two courses of action can proceed. Mississippi adheres to a national standard of care in medical malpractice cases. Hall v. Hilbun, 466 So.2d 856, 873 (Miss.1985). As Morrison recognized, there may be more than one treatment option for a medical problem. If the physician chooses one of the reasonable treatment options within the standard of care, that choice does not create liability. Morrison, 657 So.2d at 814-15.

¶ 33. A statement of the law consistent with these principles is this:

Where competent medical authority is divided, a physician will not be held responsible if in the exercise of his judgment he followed a course of treatment advocated by a considerable number of recognized and respected professionals in his given area of expertise.

Jones v. Chidester, 531 Pa. 31, 610 A.2d 964 (1992).

¶ 34. There was testimony from defense experts which contradicted testimony from Bickham’s experts. Whether competent medical authority was indeed divided on the proper course of treatment was as much a question of fact for the jury as was the determination of whether the course of treatment followed was within the standard of care. Here, the jury verdict necessarily meant that the course of treatment taken by the defendants was within the standard of care. Whether the jury also would have found that the opinions expressed by the Bickham’s experts were consistent with the standard of care is unknown and irrelevant for our purposes. In my view, the instruction that led to this jury verdict was not an erroneous one. In this specific, narrow context, I submit that the use of the phrase “in the exercise of their best judgment” is NOT the fatal flaw which the plurality finds it to be under Morrison. The jury obviously placed greater credibility on experts than Bick-ham’s experts. “When evidence is conflicting, we defer to the jury’s determination of the credibility of witnesses and the weight of their testimony.” Ducker v. Moore, 680 So.2d 808, 811 (Miss.1996). In this case, the search for truth focused on a battle of the experts, each armed with a particular view of the parties’ conflicting theories as to how Bickham’s death occurred. After hearing all the testimony, the jury, as the ultimate trier of fact, rendered its verdict.

¶ 35. Finally, it is important to note that instruction C-20 is not to be considered in a vacuum. The instructions as a whole are examined to determine if the jury was properly instructed. Payne v. Rain Forest Nurseries, Inc., 540 So.2d 35, 40-41 (Miss.1989). Instructions C-5, C-11, C-13 and C-16 noted above, provided additional and consistent guidance, and none of them are criticized on appeal. Instruction C-16 informed the jury that the doctors must possess the “degree of care, diligence and skill as is ordinarily possessed by minimally competent and reasonably diligent, skillful, careful and prudent obstetrician practicing throughout the United States.” In addition the instruction informed the jury that the doctors actions must be examined under the circumstances as they existed during their treatment of Tamara Bickham, not using hindsight.

¶ 36. Instruction C-5 instructed the jury as to the steps that it must take to find for Bickham. In essence the jury had to find that Dr. Grant failed to exercise the requisite degree of care and skill required by a minimally competent and qualified obstetrician-gynecologist, and that his failure to exercise such skill and care was the cause of Tamara Bickham’s death. This instruction makes it clear that the jury must judge Dr. Grant’s professional actions and decisions.

¶ 37. C-13 instructed the jury that it must decide if expert opinions are not sound, or that the opinions are outweighed by other evidence, and that in those events it may disregard the opinion entirely.

¶ 38. Finally, Instruction C-ll instructed the jury that it must return a verdict for Bickham if it found that Drs. Grant and Harris did not meet the minimal requirements of competence by failing to properly diagnose, or properly treat, or properly monitor the treatment, or order the proper diagnostic tests or timely consult specialists about thrombophlebitis and pulmonary embolism.

¶ 39. Accordingly, I believe that the trial court did not err in giving Instruction C-20 here. The conflicting expert testimony could reasonably be found by the jury to represent two courses of treatment available to Drs. Grant and Harris, from which a choice needed to be made. As Morrison discusses, the physicians do not even need to be aware of all possible treatments if they choose one that is within the standard of care. Morrison, 657 So.2d at 814-15. The jury instructions as a whole adequately informed the jury that the doctors were to be examined for their professional judgment.

¶ 40. Although C-20 is not a model instruction to be followed, and certainly could have been more artfully drawn, its presentation to the jury did not constitute reversible error.

¶ 41. In my view, the jury was adequately instructed. The granting of Instruction C-20 was not reversible error. The decision of the Court of Appeals should be reversed as to Drs. Grant and Harris and Rush Group and the judgment of the Lauderdale County Circuit Court reinstated.

¶ 42. For these reasons, I concur in part and dissent in part.

SMITH, P.J., WALLER AND CARLSON, JJ., JOIN THIS OPINION.

      . The Defendants also assert that the Court of Appeals' majority opinion misapprehends the facts concerning Bickham's alleged blood clotting disorder which was allegedly diagnosed when she was seven years of age. Since these statements of fact have no bearing on our decision to affirm the Court of Appeals decision, we need not consider the merits of this issue. Suffice it to say, the Court of Appeals did in fact make three misstatements of fact, those being (1) Bickham's diagnosis with a blood clotting disorder at the age of seven; (2) information regarding Bickham's blood clotting disorder was a part of her medical records; and (3) the information regarding Bickham's blood clotting disorder was relied upon by the physicians in providing treatment.