author: CHANDLER, J., IRVING, J.,

text:
    MEDICOMP, INC., Appellant, v. Paul MARSHALL, Appellee/Cross-Appellant, v. Dale Williams, M.D., Cross-Appellee.
    No. 2002-CA-00795-COA.
    Court of Appeals of Mississippi.
    Feb. 24, 2004.
    Rehearing Denied May 18, 2004.
    Certiorari Denied July 22, 2004.

      William Bienville Skipper, Robert S. Addison, Gary K. Jones, Jackson, attorneys for appellant.
    Carroll Rhodes, Hazlehurst, attorney for appellee/cross-appellant.
    Stephen P. Kruger, Jackson, Jan F. Ga-dow, Ridgeland, attorneys for cross-appel-lee.
    Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. This is the appeal of a $1,500,000 jury verdict in favor of Paul Marshall against Medicomp, Inc. rendered in the Circuit Court of Copiah County. Initially, Marshall filed suit against Hardy Wilson Memorial Hospital and Dr. Dale Williams seeking damages for injuries he suffered as a result of the alleged negligent treatment of burns to his right leg. More than four years later Marshall filed a motion to amend his complaint seeking to add Medi-eomp as a new party to the suit. The circuit court granted Marshall’s motion and held that the amended pleading would relate back to the original complaint. The amended complaint was filed the same day adding Medicomp as a party and dismissing Hardy Wilson. Medicomp denied all liability and subsequently moved for summary judgment on three separate occasions arguing that the statute of limitations had expired. The motions were all denied and a trial on the matter took place. At the close of Marshall’s evidence, Dr. Williams’s motion for a directed verdict was granted. Medicomp’s motion for a directed verdict was denied. Medi-comp’s request for a peremptory instruction was also denied. After the jury verdict was rendered, Medicomp moved for a judgment notwithstanding the verdict, mistrial, new trial, and an investigation into alleged juror misconduct or in the alternative, a remittitur. All of Medicomp’s post trial motions were denied and this appeal followed. Marshall cross-appeals the circuit court’s directed verdict in favor of Dr. Dale Williams.

FACTS

¶ 2. On January 31, 1995, Marshall left his residence in Hazlehurst, Mississippi and traveled to Birmingham, Alabama to get his monthly disability check which was still being sent to his former mailing address in Birmingham. The trip required an overnight stay in Birmingham and Marshall had come prepared to spend the night at his former residence. He had also come prepared to build a fire in the fireplace because the residence had no gas or electricity. After nightfall, a fire was begun in the fireplace; however, Marshall added gasoline to the fire and spillage from the gasoline caused his clothing to ignite and resulted in the injuries that are the subject of this appeal.

¶ 3. Marshall drove himself to the emergency room at Baptist Princeton Hospital in Birmingham where he received treatment for a fairly significant burn to his right leg. The wound was cleaned and excised of any dead or contaminated tissue in a process commonly known as debridement. A topical burn cream and dressing was applied to the wound and pain medication and a tetanus shot were administered to Marshall. Hospital records indicate that Marshall was diagnosed with second degree burns to his leg. He was instructed to return in two days to be reexamined and to leave the dressing on the wound until that time.

¶ 4. The following day, February 1,1995, Marshall drove back to his residence in Hazlehurst, arriving there at about 4:00 p.m. Sometime following his arrival home Marshall’s wife removed the dressing from the wound. By 9:00 p.m. the wound had become very painful and its appearance caused enough concern that an ambulance was called to transport Marshall to the emergency room at Hardy Wilson Hospital in Hazlehurst. Marshall was examined by the on-call emergency room physician, Dr. Williams, who diagnosed him with second degree burns. Burn cream and a clean dressing was applied to Marshall’s wounds. Hospital records indicate that Marshall was instructed to return at 8:00 a.m. the next day, February 2, 1995, for a whirlpool bath. He was also advised to see a local physician, Dr. Walker, on February 3, 1995. Written instructions to apply burn cream to the wound twice a day and to keep the wound wrapped until he had a chance to see Dr. Walker were also provided.

¶ 5. What happened the next day, February 2, 2003, was a matter of considerable controversy at the trial. Marshall testified that he showed up as scheduled at the emergency room at Hardy Wilson for his whirlpool bath and was told to go down the hall a few doors to the physical therapy department. He testified that when he arrived there he was told that there was no therapist on duty to give him the bath and that there would not be a therapist there that day. He testified that an appointment was then made for him to come in the next day.

¶ 6. Medicomp employees testified that Marshall called the physical therapy department on February 2, 2003, and an appointment was made over the telephone for him to come in the following day, February 3, 2003. All of the witnesses agreed that Marshall came in as scheduled on February 3, 2003, but that, once again, there was no one available to give him a whirlpool bath.

¶ 7. Marshall testified that he became upset and frustrated when he learned that he would not be able to receive his bath as scheduled. He stated that he was in a lot of pain from his wound and begged to be allowed to see the emergency room doctor or to be given transportation to a hospital in Jackson. He said his pleas were ignored and he was simply told that he would have to leave because there was no one to treat him.

¶ 8. To the contrary, Medicomp and Hardy Wilson personnel testified that Marshall was given the option of seeing the emergency room doctor and an offer was made to drive him a short distance away to Dr. Walker’s office where he already had a 4:00 p.m. appointment for that same day; but, Marshall refused all offers of help. Instead, he became more and more belligerent to the point that law enforcement had to be summoned to remove him from the premises.

¶ 9. Marshall’s wife testified that she learned of the commotion at the hospital and went there. She testified that she calmed her husband down and convinced him to go with her to Dr. Walker’s office. When they arrived at Dr. Walker’s office, Marshall was refused treatment because Mrs. Marshall had a past due account with the doctor.

¶ 10. Mrs. Marshall then drove her husband to Kings Daughters Hospital in Brookhaven where he was immediately admitted and remained for seventeen days for treatment of second and third degree burns to his leg, some of which had become infected. Marshall’s lawsuit sought compensation for the actions and inactions of Hardy Wilson, Dr. Dale Williams and Medicomp in their treatment of his injury.

¶ 11. Medicomp submits that the trial court erred in granting Marshall’s motion to amend his complaint and in denying Medicomp’s numerous motions for dismissal, when the limitation period applicable to Marshall’s claims had obviously expired. Additionally, Medicomp alleges that the trial court erred in permitting Marshall to argue that the statute of limitations was tolled based upon the doctrine of fraudulent concealment, when Marshall never pleaded or proved the necessary elements of fraudulent concealment. Finding merit in Medicomp’s arguments, this Court reverses and renders.

ANALYSIS

1. statute of limitations

¶ 12. Marshall sued on various legal theories including violation of the Emergency Medical Treatment and Labor Act (EMTLA), negligence and breach of contract. When Marshall rested his case in chief Medieomp made a motion for a directed verdict challenging the sufficiency of the evidence on Marshall’s various theories. Counsel for Marshall, Mr. Rhodes, responded that, “In the pretrial order, he is only pursuing ... the negligence claim against Medieomp.” The trial court then inquired as follows:

THE COURT: So apparently there’s a contract claim; is that right?
MR. RHODES: Your Honor, this will be one as a matter of law. We’re just claiming he’s a beneficiary under this contract that Medieomp had with Hardy Wilson where Medieomp disagreed [sic] to provide physical therapy for Hardy Wilson. He’s not a signatore [sic] to that contract. That was on the basis of that.
THE COURT: As far as any claim where the—
MR. RHODES: EMTLA?
THE COURT: Yeah.
MR. RHODES: We’re not asserting those claims, Your Honor. We did not put them forward in the pretrial order.
THE COURT: All right, sir.
MR. FOSTER [counsel for Medieomp]: May I briefly respond? With respect to the breach of contract claim, there’s been no evidence that the contract was breached, so Medieomp deserves a directed verdict on that claim.
THE COURT: He said he’s not pursuing that.
MR. FOSTER: Are you not bringing the breach of contract in — ■
MR. RHODES: No.

¶ 13. As is plainly evident from the preceding excerpt, negligence was the only cause of action Marshall was advancing at the time of trial. A cause of action in negligence is governed by the two-year statute of limitations of Mississippi Code Annotated section 15-1-36 (Rev.2003). That statute provides that suit must be brought “within two years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered.” The alleged omission was failure to have staff available. That information was known on the day or days that it occurred; thus, the statute of limitations would have expired no later than February 3,1997.

¶ 14. Notwithstanding his counsel’s declarations to the contrary to the trial court, Marshall attempts to resurrect his breach of contract cause of action in this appeal. Apparently conceding that the statute of limitations on that cause of action had expired prior to his suing Medieomp, he argues to this Court that the statute of limitations on that action was tolled by Medicomp’s alleged fraudulent concealment of Medicomp’s breach of its contract with Hardy Wilson to have a licensed physical therapist on duty on February 2 and 3,1995.

2. fraudulent concealment

¶ 15. The supreme court ease of Robinson v. Cobb, 763 So.2d 883, 887 (Miss.2000), holds that in order for a court to find fraudulent concealment “there must be shown some act or conduct of an affirmative nature designed to prevent and which does prevent discovery of the claim.” Marshall must first prove that Medicomp “engaged in affirmative acts of concealment” and that he acted with due diligence in attempting to discover Medi-comp’s role, but was unable to do so. Id. In this regard, it must first be noted that Marshall did not plead fraudulent concealment with sufficient particularity in either his motion for leave to amend or in his amended complaint. Marshall’s motion for leave to amend states:

The Plaintiff, Paul Marshall, recently discovered from defendant, Hardy Wilson Memorial Hospital, that Hardy Wilson Memorial Hospital had a contract with Medicomp, Inc., to provide services which form the basis of this lawsuit, and plaintiff desires to make Medicomp, Inc. a party to this action.
Justice requires that leave to amend be granted in the instant case. Since pertinent facts concerning liability were recently discovered by plaintiff, and those facts were fraudulently concealed from him for several years, he should be permitted to pursue those facts.

¶ 16. Marshall only makes the allegation that pertinent facts were fraudulently concealed. He fails entirely to identify any act or conduct of an affirmative nature on the part of Medicomp that was designed to prevent and which did prevent his discovery of the claim. Equally deficient are the fraudulent concealment allegations in his amended complaint which merely states:

Defendants, Medicomp, Inc. and Hardy Wilson, fraudulently concealed the cause of action plaintiff, Paul Marshall, had against them for their failure and refusal to give him a whirlpool bath on February 1, 2, and 3,1995.
Plaintiff, Paul Marshall, could not have discovered defendants, Medicomp, Inc. and Hardy Wilson, fraudulent concealment, with reasonable diligence before February 8, 1999 when the attorney for these defendants wrote plaintiffs counsel a letter advising of the contract between these defendants to provide a licensed physical therapist to administer whirlpool baths for Hardy Wilson.

¶ 17. There was simply no basis on which the trial court could make a finding of fraudulent concealment from Marshall’s pleadings that would justify the tolling of the statute of limitations. Additionally, there is nothing in the record to support a charge of fraudulent concealment.

¶ 18. The object of a fraudulent concealment claim is concealment of the cause of the injury which in turn conceals the identity of the causing agent. In order for this Court to affirm the ruling of the trial court in granting the motion to amend on the basis that Medicomp’s fraudulent concealment tolled the running of the statute of limitations, this Court must find that: (1) Medicomp knew that it had caused Marshall’s injuries; (2) engaged in affirmative acts to conceal its role in causing his injury; and, (3) Marshall acted with due diligence in attempting to discover the cause of his injuries, but was unable to do so because of Medicomp’s affirmative acts of concealment. The facts do not support such a finding.

¶ 19. With immense respect for the position taken by the dissenting opinion, it appears that this opinion’s holding has been misconstrued. The dissenting opinion states that “the trial court did not err in ordering the amended complaint to relate back to the date of filing of the original complaint.” This opinion holds that the trial court erred in granting the motion to amend the complaint, as a result, the question of whether or not the amended complaint would relate back became a moot issue.

¶ 20. Before arriving at the conclusion that the trial court erred, we examined the record to determine the basis upon which the trial court made its decision to grant the motion to amend the complaint to add a new party and new factual allegations more than eighteen months after the filing of the original lawsuit and more than four years after the cause of action arose. The trial court’s order which granted the motion provided no guidance as it merely granted the motion and held that the amended complaint “shall relate back to the date of the original filing.” We were therefore left to examine the motion itself and the amended complaint.

¶ 21. The motion to amend, unlike the valiant and well-reasoned argument set forth in the dissenting opinion, did not argue Mississippi Rule of Civil Procedure 15(c), but argued instead that Marshall had only recently learned of a contract between Hardy Wilson and Medicomp in which Medicomp agreed to provide services which formed the basis of the lawsuit and other “pertinent facts concerning liability.” Marshall claimed that he had only recently learned of these matters because they had been “fraudulently concealed from him for several years.” The allegations of fraudulent concealment were mirrored in the amended complaint that was later filed.

¶ 22. Without more from the trial court we must conclude that in granting the motion to amend, the court adopted the reasons set forth in the motion. As explained in other portions of this opinion, that was error. It appears obvious that the fraudulent concealment argument was advanced as a “savings” option because without it the statute of limitations on negligence actions would have barred any action against Medicomp at that time.

¶23. It would be patently unfair for this Court to adopt the reasoning of the dissenting opinion which advances an argument on behalf of a party that never advanced the argument itself, and which, by implication, the opposing party never had an opportunity to address, and to then, as the dissent suggests, rule that the opposing party cannot now assert a defense to the argument for the first time on appeal.

¶ 24. Medicomp makes other claims of error on the part of the trial court having to do with jury misconduct, remittitur, whether the jury award was exorbitant, and the denial of various post trial motions; however, the decision by this Court to reverse and. render the jury verdict nullifies those issues.

Cross-Appeal

1. directed verdict in favor of Dr. Williams

¶25. In his cross-appeal, Marshall contends that granting Dr. Williams’s motion for a directed verdict constituted reversible error. This Court conducts a de novo review of motions for directed verdict, and considers the evidence in the light most favorable to the non-moving party, giving that party the benefit of all favorable inferences that may reasonably be drawn from the evidence presented at trial. Houston v. York, 755 So.2d 495 (¶ 12) (Miss.Ct.App.1999). A directed verdict should not be granted unless, on the basis of those facts and inferences, no question of fact remains on which reasonable minds could differ. Otherwise, the matter should be submitted to the jury. Id.

¶ 26. Marshall argues that the question of whether Dr. Williams was negligent in not referring him to a surgeon or burn center following his visit to the emergency room at Hardy Wilson was a question of fact that the jury should have been allowed to answer. Marshall’s medical expert, Dr. Moses Young, testified on direct examination that he did not personally examine Marshall’s wound; but, that he reviewed Marshall’s medical records from Hardy Wilson and Kings Daughters Hospital and came to the conclusion that “based upon the degree of burn that he had, I think he should have immediately been referred to either ... a surgeon or burn unit.”

¶ 27. On cross-examination, Dr. Young responded as follows:

Q. Now, the criteria for transfer is what this section is talking about, right? Now, the first paragraph says, “The American Burn Association has identified the following types of burns, injuries that usually require referrals to a burn center.” Look at number 2. Well, first of all, look at number 1. It says, “Partial thickness and full thickness burns greater than 10 percent of the total body surface area in patients under 10 and over 50,” right?
A. Right.
Q. Mr. Marshall doesn’t fall in that category, does he?
A. Not according to the age.
Q. Mr. Marshall falls into the next category doesn’t he? Partial thickness, which is second degree burns you were talking about, right?
A. Right.
Q. And full thickness, which is the third degree burns. So in other words, second degree and third degree burns greater than 20 percent of the body surface in other age groups, which would include Mr. Marshall, correct?
A. Correct.
Q. So according to the American Burn Association’s criteria for people you should refer to burn centers, Mr. Marshall didn’t need to be referred to a burn center, did he?
A. Not according to this.
Q. Not according to the ATLS manual; is that correct?
A. Right. Correct. According to the manual.
Q. This is the book that you were certified under in 1992, right?
A. Right.
Q. And this is the book that you follow in your treatment in emergency rooms, too, correct?
A. Correct.

¶ 28. What is readily apparent from the foregoing excerpt is that Marshall’s own expert agreed that based on Dr. Williams’s diagnosis at the time he saw Marshall in the emergency room there was no indication that Marshall needed to be transferred to a surgeon or burn center and the treatment he rendered was appropriate and within the standard of care. In accordance with this Court’s standard of review, on the basis of those facts and inferences, no question of fact remained on which reasonable minds could differ on the issue; therefore, a directed verdict was proper.

¶ 29. Marshall further argues that, in granting the motion for directed verdict, the trial court invaded the province of the jury by deciding that Marshall’s expert witness had recanted his testimony when, to the contrary, the expert witness testified on re-direct examination that he had not recanted his testimony. This Court notes that Marshall’s expert, Dr. Young, had based his opinion that Dr. Williams should have immediately transferred Marshall to a surgeon or burn center on the assumption that, at the time Marshall was seen by Dr. Williams, Marshall had a “deep partial thickness” second degree burn which all authorities agreed would have required transfer. However, when cross-examined on this point Dr. Young-testified as follows:

Q. And what that means, as I understand it is, when you get bacteria in a wound — if you’ve got a second degree wound as it was diagnosed by both of these physicians here, it can rapidly convert to a third degree wound, correct?
A. Correct.
* * *
Q. Okay, sir. Isn’t the most likely series of events in this case the following: Mr. Marshall sustained second degree burns and was treated at the hospital in Birmingham, diagnosed second degree burns, at Hardy Wilson was diagnosed by Dr. Williams as second degree burns, he had second degree burns. Those burns sometime after he left Dr. Williams’ care became infected and rapidly progressed to the level of the third degree that was found at King’s Daughters Hospital. Isn’t that the most likely case situation looking at all the records and all these medical texts and your education and training?
A. That’s a strong possibility.
Q. It’s more likely than not that those second degree burns got infected and became third degree burns than it is that two board certified ER physicians are going to misdiagnose it and call it second when it’s really third, right?
A. Correct.
Q. And if these were second degree burns, which had not converted to third degree burns because there wasn’t any infection when Dr. Williams treated him — if these were second degree burns when Dr. Williams treated him, then Dr. Williams treated him appropriately and complied with the standard of care, didn’t he?
A. Yes.
Q. And if that is the case, then Mr.— Dr. Williams didn’t do anything wrong, did he, sir?
A. Not according to that.
Q. Not according to what?
A. Not according to his care.

¶ 30. When this Court applies its appellate standard of review on the granting of a directed verdict to this testimonial evidence and considers it in the light most favorable to the non-moving party, giving that party the benefit of all favorable inferences that may reasonably be drawn from the evidence, it is left with the firm conviction that the directed verdict was properly granted. The trial court is affirmed on this issue.

¶ 31. THE JUDGMENT OF THE CO-PIAH COUNTY CIRCUIT COURT IS REVERSED AND RENDERED ON THE DIRECT APPEAL AND IS AFFIRMED ON THE CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPEL-LEE/CROSS-APPELLANT.

McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, LEE, MYERS AND GRIFFIS, JJ., CONCUR. KING, P.J., CONCURS IN RESULT ONLY. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY THOMAS, J.

IRVING, J.,

Dissenting:

¶ 32. The majority reverses and renders the $1,500,000 judgment Marshall obtained against Medicomp, Inc. because, in the view of the majority, the statute of limitation had run prior to Marshall’s filing an amended complaint to add Medicomp as a defendant. I respectfully dissent for two reasons.

¶ 33. First, I believe that the amended complaint related back to the filing of the original complaint, and was therefore timely filed. Second, the critical issue is not whether the cause of action against Medi-comp was fraudulently concealed, thereby concealing Medicomp’s identity, as the majority suggests, but whether there was a fraudulent concealment of Medieomp’s identity as a player in the transaction or occurrence giving rise to Marshall’s claim. This distinction is important. As to the issues as I have framed them, there was a plethora of evidence to support both the decision of the trial judge to allow the amended complaint to relate back, and the finding of the jury of concealment of Medi-comp’s role which in essence was a concealment of Medicomp’s identity. However, as will be discussed in the succeeding paragraphs, I do not believe the survival of Marshall’s judgment depends solely on whether there was concealment of any nature because there is sufficient evidence to find that the trial court did not err in ordering the amended complaint to relate back to the date of the filing of the original complaint.

¶ 34. On January 30, 1997, Marshall filed his original complaint against Hardy Wilson Memorial Hospital and Dr. Dale Williams. The gravamen of the complaint was medical negligence occurring on January 31, 1995. The medical negligence was centered around the alleged failure of the defendants to diagnose, properly treat, and stabilize Marshall for burns to his hands and leg.

¶ 35. On February 8, 1999, counsel for Dr. Williams wrote Marshall’s counsel a letter containing the following pertinent information:

As we discussed, enclosed is a copy of the physical therapy contract between Hardy Wilson Memorial Hospital and Medieomp, Inc. which was in effect at the time of Mr. Marshall’s treatment. / was not aware of this agreement until recently. Under the terms of this contract and consistent with the hospital’s policy and procedure for physical therapy, Medieomp was to provide a physical therapist, on a regular basis, to the hospital. The hospital policy also stated that “in event of illness or at vacation period of a registered physical therapist, Medieomp will supply the department with a substitute registered physical therapist.” Our understanding is that on February 2 and 3, 1995, Medicomp’s registered physical therapist was sick and that no substitute was provided. A licensed physical therapist assistant was on duty at the hospital when Mr. Marshall returned but he, by law, was not licensed to do an initial evaluation which must be performed before therapy is instituted. At the time Dr. Williams ordered the physical therapy and discharged Mr. Marshall, he had no reason to believe that Medieomp would not provide a therapist as scheduled.

(emphasis added).

¶ 36. On June 9, 1999, Marshall filed a motion to amend his complaint. The motion alleged that Marshall had “recently discovered from defendant, Hardy Wilson Memorial Hospital, that Hardy Wilson Memorial Hospital had a contract with Medi-comp, Inc. to provide services which form the basis of this lawsuit, and plaintiff desires to make Medieomp, Inc. a party to this action.” The motion alleged that “[t]he amendment should relate back to the original pleading since it arose out of conduct set forth in the original pleading.” On June 14, 1999, the trial court granted Marshall’s motion to amend his complaint to add Medieomp as a defendant. The order specifically provided that the amended complaint “shall relate back to the date of original filing.”

¶ 37. Marshall filed his amended complaint on the date of the order permitting its filing. In the amended complaint, Marshall alleged, inter alia, that:

On November 18, 1994, Hardy Wilson and Medieomp, Inc. entered into a written contract whereby defendant, Medieomp, Inc. agreed to provide staff, personnel, and competent and licensed professionals to staff and operate the Copiah Wellness and Rehabilitation Center and provide licensed physical therapists to administer whirlpool baths for Hardy Wilson for a period of two years. Plaintiff, Paul Marshall, was a beneficiary under this contract.
On February 1, 2, and 3, 1995, defendant, Medicomp, Inc., failed and refused to give plaintiff, Paul Marshall, a whirlpool bath when he returned those mornings.
Defendant, Medicomp, Inc., and Hardy Wilson, fraudulently concealed the cause of action plaintiff, Paul Marshall, had against them for their failure and refusal to give him a whirlpool bath on February 1, 2, and 3,1995.
Defendant, Medicomp, Inc. and Hardy Wilson, fraudulently concealed the cause of action plaintiff, Paul Marshall, had against them for their failure and refusal to give him a whirlpool bath on February 1, 2, and 3,1995.
Plaintiff, Paul Marshall, could not have discovered defendant’s Medicomp, Inc.’s and Hardy Wilson, [sic] fraudulent concealment, with reasonable diligence before February 8, 1999, when the attorney for these defendants wrote plaintiffs counsel a letter advising of the contract between these defendants to provide a licensed physical therapist to administer whirlpool baths for Hardy Wilson.

¶ 38. The majority fails to discuss the application of Rule 15(c) and devotes its entire discussion to whether the evidence supports a theory of fraudulent concealment so as to toll the statute of limitations. In my judgment, the majority misses the point for two reasons. First, while Marshall did allege fraudulent concealment, Rule 15(c) does not require proof that the identity of the party sought to be added by amendment must have been concealed. Second, although Marshall alleged fraudulent concealment of the claim against Med-icomp, what he was actually alleging is not that the claim against Medicomp was concealed but that the identity of Medicomp, as the perpetrator of the injury, was concealed. All parties understood that that was what was being alleged. I will return to this point later in the opinion after addressing the conditions or requirements that must be met before an amendment may relate back to the date of the filing of the initial pleading.

¶ 39. Rule 15(c) of the Mississippi Rules of Civil Procedure provides in part as follows:

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by Rule 4(h) for service of the summons and complaint, the party brought in by amendment:
(1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining the party’s defense on the merits, and
(2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.

¶ 40. I first note that, if the amendment relates back to the date of the filing of the initial pleading and the initial pleading was timely filed and served, there is no need or requirement that the statute of limitation be tolled because the amendment relates back to a time prior to the running of the statute of limitation. In order for the amended complaint in this case to relate back to the date of the filing of the initial complaint, Marshall had to show: (1) that the claim asserted in the amended complaint arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original complaint, (2) that within 120 days after the filing of the original complaint, Medicomp had received such notice of the institution of Marshall’s lawsuit that it would not be prejudiced in maintaining its defense on the merits, and (3) Medicomp knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against it. M.R.C.P. 15(c).

1. Same Transaction or Occurrence

¶ 41. It is not open to legitimate debate that the claim asserted against Medicomp in the amended complaint arose out of the conduct, transaction, or occurrence set forth, or attempted to be set forth, in the original complaint. The original complaint alleged negligence in the diagnosis and treatment of Marshall’s injury. The provision of whirlpool baths was a part of the treatment prescribed.

2. Notice of Marshall’s Lawsuit by Medicomp Prior to May SO, 1997

¶ 42. I first note that Medicomp did not allege or contend in any of the pleadings filed in the trial court that it had no notice of Marshall’s lawsuit prior to May 30,1997. Medicomp’s position then was that the statute of limitation had run before Marshall brought it into the lawsuit. It was not contended in the trial court that the amended complaint should not relate back, pursuant to the provisions of Rule 15(c), because Medicomp did not receive notice of the lawsuit against Hardy Wilson by May 30, 1997, which was the 120th day following the filing of Marshall’s original complaint. In its answer to the amended complaint, as well as in its motions for summary judgment and motion for judgment notwithstanding the verdict, Medi-comp’s temporal arguments were based not on the temporal requirement of Rule 15(c) but the temporal pronouncement of the statute of limitation. I discuss those next.

¶ 43. In its answer to the amended lawsuit, filed on February 1, 2000, Medi-comp alleged as its second defense that “Plaintiffs claims are barred by the applicable statute of limitations.” The “relation back” provision of Rule 15(c) is not a statute of limitations.

¶ 44. In its motion for summary judgment, filed on May 2, 2000, Medicomp alleged:

7. Each cause of action alleged against Medicomp accrued for statute of limitations purposes on February 3, 1995, at the latest.
8. The EMTALA [Emergency Medical Treatment and Labor Act] contains a two-year limitations period. See 42 U.S.C.A. § 1395dd(d)(2)(C). The limitations period expired February 3, 1997. Plaintiffs EMTALA claim against Medi-comp is time-barred.
9. Plaintiffs negligence claims are governed by Miss.Code Ann. § 15-1-36 which sets out a two-year limitations period. That period expired February 3, 1997. Thus, Plaintiffs negligence per se and negligence claims are time-barred.
10. Plaintiffs breach of contract claim is governed by Miss.Code Ann. § 15-1-49. That statute sets out the catch-all limitations period of three years. Plaintiffs breach of contract claim expired February 3, 1998 and is time-barred.

¶ 45. In the renewal of its motion for summary judgment, filed on February 4, 2002, Medicomp alleged the following:

12. Each cause of action alleged against Medicomp accrued for statute of limitations purposes on February 3, 1995, at the latest.
13. Plaintiffs negligence claims are governed by Miss.Code Ann. § 15-1-36 which sets out a two-year limitations period. That period expired February 3, 1997. Thus, Plaintiffs negligence per se and negligence claims are time-barred.

¶ 46. In its motion for judgment notwithstanding the verdict, Medicomp did not address the application, or lack thereof, of Rule 15(c) to the facts of this case. It limited its discussion to an attempt to show that any evidence of fraudulent concealment of Marshall’s cause of action was woefully lacking.

¶ 47. I should note that, although Medi-comp in its answer to the amended complaint did not question the propriety of the amended complaint relating back to the original complaint, it did, in its motion for summary judgment, allege that the amended complaint did not relate back to the original complaint. This was the first time that Medicomp had raised a Rule 15(c) objection, but even then, the specific objection was not temporally based. This is what Medicomp alleged:

11. The amended complaint does not correct a mistake concerning the identity of the proper party. Instead, it adds factual allegations and seeks to add another party outside the limitations period. Plaintiffs amended complaint thus does not relate back to the filing of his original complaint and it should be dismissed as against Medicomp.

It is clear from the language quoted above that Medicomp’s contention was that the amended complaint did not relate back because it added another party, not that it did not relate back because Medicomp did not receive notice of the original lawsuit within 120 days of the filing of the original complaint. Therefore, since Medicomp did not place the specific issue of lack of notice before the trial court, it cannot now assert that issue on appeal for the first time, for it is well settled in the jurisprudence of this state that a trial court cannot be put in error on a matter not presented to it for decision. Marcum v. Hancock County Sch. Dist., 741 So.2d 234, 238(¶ 20) (Miss. 1999).

3. Mistake as to Identity of the Party

¶ 48. In his original complaint, Marshall alleged that he received improper treatment. The whirlpool baths were part of the treatment ordered. These baths were not performed as ordered because of negligence on the part of Medicomp. Of course, Marshall thought that the physical therapy department of Hardy Wilson was run by employees of Hardy Wilson. No posted signs explained otherwise. Therefore, Marshall was justified in initially believing that it was Hardy Wilson which was negligent in not providing the whirlpool baths. It seems reasonable to me that Medicomp knew or should have known that, but for Marshall’s mistaken belief concerning the identity of the entity responsible for operating the physical therapy department of Hardy Wilson, he would have named Medicomp as a defendant.

¶ 49. Medicomp argues that Marshall’s lawsuit against it is a different cause of action naming an additional party rather than the same cause of action substituting a party. Medicomp relies heavily on the fact that whirlpool baths and the treatment period of February 1 through 3, 1995, are not mentioned in the original lawsuit. I see at least two problems with this argument. First, the original cause of action was a medical negligence cause of action alleging, inter alia, negligence in the treatment of Marshall’s injury. The amended complaint alleges a medical negligence cause of action arising out of the medical treatment Marshall received for his injuries. As I have already observed, the whirlpool baths were a part of Marshall’s medical treatment. It was not necessary that all treatment be spelled out in the original complaint. Apparently, Medi-comp has forgotten that Mississippi is a notice pleading jurisdiction. Second, Med-icomp did not raise a Rule 15(c) defense in its answer to the amended complaint, nor did it raise it by a separate motion to dismiss at the time it filed its answer. Medicomp was required to raise that defense at that time. Otherwise, it was waived. M.R.C.P. 12.

¶ 50. Finally, I briefly address the concealment issue. As I noted in the first portion of this dissent, I do not think the real issue was one of concealment of the cause of action but concealment of Medi-comp’s identity as a player or responsible party in the administration of Hardy Wilson’s physical therapy department. The parties talked about concealment of the cause of action when in fact they were talking about concealment of Medicomp’s identity. I agree with the majority that there was no concealment of Marshall’s cause of action, but there was plenty of evidence of concealment of Medicomp’s identity vis-a-vis the administration of Hardy Wilson’s physical therapy department. In my opinion, whether Marshall was mistaken as to the identity of the entity operating Hardy Wilson’s physical therapy was a question of fact to be resolved by the jury. This issue was presented to the jury pursuant to a special interrogatory, and it resolved the issue against Medicomp. I would not disturb the jury’s determination.

¶ 51. In summary, I dissent, because I do not believe that the trial judge abused his discretion in allowing the amended complaint to be filed with the proviso that it related back to the original complaint. I think Medicomp waived any objection to the relating back provision when it made no objection in its answer to the amended complaint. I also believe Marshall met the criteria of the relation-back provision of Rule 15(c).

¶ 52. The majority attempts to sidestep the arguments made here by suggesting that this writer has misconstrued its holding. In suggesting that the dissent has misconstrued its holding, the majority explains that it found fault with the trial court’s granting the motion to amend, thereby making the “relation back” provision of Rule 15(c) a moot issue. The majority also asserts that Marshall’s motion to amend “did not argue Mississippi Rule of Civil Procedure 15(c).” Majority opinion at 199 (¶21). With gracious respect for the majority, I beg to differ on both points.- Quite the contrary, it is the majority which has misread Marshall’s motion to amend and misunderstood the criteria set forth in Rule 15 for allowing amendments. The motion to amend plainly alleged in paragraph 3 that “[t]he amendment should relate back to the original pleading since it arose out of conduct set forth in the original pleading.” Also, in paragraph 1 of the motion to amend, Marshall alleged:

The plaintiff, Paul Marshall, recently discovered from defendant, Hard Wilson Memorial Hospital, that Hardy Wilson Memorial Hospital had a contract with Medicomp, Inc. to provide services which form the basis of this lawsuit, and plaintiff desires to make Medicomp, Inc. a party to this action.

¶ 53. Section (a) of Rule 15 provides, inter alia, that “leave [to amend] shall be freely given when justice requires.” M.R.C.P. 15(a). While it is true that Marshall’s motion also alleged that certain facts had been fraudulently concealed from him, that allegation must be considered in the overall context. Regarding the matter of fraudulent concealment, the motion alleged in paragraph 2 that “[s]ince pertinent facts concerning liability were recently discovered by plaintiff, and those facts were fraudulently concealed from him for several years, he should be permitted to pursue those facts.”

¶ 54. When all the allegations of the motion for leave to amend are considered in context, the obvious conclusion is that Marshall was alleging (1) that he did not know of the contractual role between Med-icomp and Hardy Wilson regarding Medi-comp’s contractual responsibility for provision of Whirlpool baths to Hardy Wilson’s patients, and (2) that since Medicomp was directly responsible for provision of Whirlpool baths to Hardy Wilson’s patients, it bore some liability for its failure and refusal to give him a whirlpool bath on February 1, 2, and 3, 1995.

¶ 55. In light of these facts, it escapes logic for the majority to accuse the dissent of “advancing an argument on behalf of a party that never advanced the argument itself, and which, by implication, the opposing party never had an opportunity to address.” Majority opinion at 199 (¶ 23). Medicomp had all the opportunity in the world to raise whatever defenses it wanted to raise in its answer to the amended complaint. It chose to make a straight limitation of action argument, arguing that the statute of limitation had run on Marshall’s claim because of the period of time which had elapsed since it refused and or failed to give Marshall a Whirlpool bath as ordered by the doctor for Hardy Wilson. It should be very obvious to even a first year law student that an amendment to a lawsuit which relates back to the original lawsuit obviates any statute of limitations defenses, provided the original lawsuit was filed timely. Yet, when Medicomp filed its answer to the amended complaint, it did not attack the “relation back” provision of the order allowing the amendment. Indeed, it was required to do so. Since it did not, it should not now be tossed the lifeline which the majority so generously gives to it by suggesting that the trial court erred in allowing the amendment.

¶ 56. For the reasons discussed above, I respectfully dissent. I would affirm the judgment of the trial court.

THOMAS, J., JOINS THIS SEPARATE WRITTEN OPINION.

      . The circuit court judgment filed among the clerk’s papers states that the amount of the verdict was "One Million Two Hundred Thousand Dollars $1,200,000.00.” This Court’s disposition of the appeal renders the discrepancy moot.


source: Caselaw Access Project

author: GRIFFIS, J., LEE, J.,

license: Public Domain

text:
    Jerrod Ashton BROOMFIELD and Marquise Leon Flewellen, Appellants, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00421-COA.
    Court of Appeals of Mississippi.
    Feb. 24, 2004.
    Certiorari Denied July 22, 2004.

      Glenn F. Rishel, James F. Thompson, Harry B. Ward, Bay St. Louis, attorneys for appellant.
    Office of the Attorney General by Deirdre McCrory, attorneys for appellee.
   MODIFIED OPINION ON MOTION FOR REHEARING

GRIFFIS, J.,

for the Court.

¶ 1. The Appellants’ motion for rehearing is denied. The original opinion is withdrawn, and this opinion is substituted.

¶ 2. Marquise Leon Flewellen, Jerrod Ashton Broomfield and Douglas Ricardo Moody were charged with armed robbery and were tried as co-defendants in the Circuit Court of the First Judicial District of Harrison County. The jury convicted Broomfield and Flewellen, but was unable to reach a verdict on the charges against Moody. The post-trial motions were denied. Broomfield and Flewellen appeal. We find no error and affirm.

FACTS

¶ 3. On June 21, 2001, April Jones and Kelly Sullivan were employed as a flight attendant and pilot, respectively, by Atlantic Southeast Airlines. Late that evening, they had completed a flight and were lodging overnight at the Crystal Inn in Gulf-port, Mississippi. Jones and Sullivan were in a room watching a movie when a man broke into the room wielding a gun and repeatedly screaming obscenities and instructing them to be quiet. The intruder shoved Sullivan down in her chair and hit Jones a couple of times in the back of the head. During the struggle, two other men entered the room and forced Sullivan to the floor. One man yelled, “grab the duct tape, duct tape their eyes, duct tape their mouth.” As a result of the continuous screams and the fierce resistance encountered, one of the intruders urged the others to leave. They then left the room. Jones and Sullivan were transported to the hospital for their injuries.

¶ 4. At trial, Jones testified to the above events, and Sullivan corroborated her testimony. Both Jones and Sullivan identified Broomfield and Flewellen as the men who had entered their hotel room that night. There was no direct evidence presented to establish that property had been stolen. However, Jones’s watch, which she was wearing when the men entered the room, was found on the floor, on the opposite side of the room from where she had been standing. Jones testified that she did not take her watch off or go to the other side of the room.

¶ 5. Sergeant John Massengill of the Harrison County Sheriffs Department was dispatched to the Crystal Inn. Sergeant Massengill interviewed Jones and Sullivan and then transmitted the suspects’ descriptions to other officers. Sergeant Massen-gill, along with other investigators, discovered a piece of duct tape in the room and a piece of what appeared to be a latex glove in a nearby hotel stairwell.

¶ 6. Deputy Tim Huguet testified that, while on patrol that night, he attempted to initiate a traffic stop for speeding. The vehicle did not stop. Deputy Huguet pursued the vehicle in a high speed chase until the driver lost control and ran the vehicle off the road. Deputy Huguet testified that there were three individuals in the vehicle. When he approached the vehicle, he saw that one of the individuals had a gun. The occupants quickly fled. After a short chase, all three suspects were placed in custody. Deputy Huguet further testified that from a plain view observation he noticed a roll of duct tape and used latex gloves in the vehicle. The deputy identified Flewellen as the driver.

¶ 7. Officer Vincent Sipriano of the Gulf-port Police Department was also on patrol that evening and assisted Deputy Huguet in the pursuit. Officer Sipriano corroborated Deputy Huguet’s testimony and testified that he gave chase to and arrested Broomfield.

¶ 8. Melissa Schoene, a forensic scientist, testified that there was a physical match between the piece of duct tape taken from the hotel room and the roll of duct tape that was found in Flewellen’s vehicle.

¶ 9. The jury found Broomfield and Flewellen guilty of armed robbery. Broomfield was sentenced to thirty-five years, and Flewellen was sentenced to forty years in the custody of the Mississippi Department of Corrections.

LEGAL ANALYSIS

1. Whether the evidence was sufficient to support the element of “attempt to take.

¶ 10. Broomfield and Flewellen argue that the proof was insufficient to establish that they possessed the requisite intent to commit a robbery because there was no direct evidence that they demanded or took any items. In short, they contend that since nothing was taken then the prosecution failed to prove that they had the “intent” to take, which is required to establish the element of “attempt to take.”

¶ 11. Our standard of review on the question of the legal sufficiency of the evidence is clearly defined. In Manning v. State, 735 So.2d 323, 333(¶ 10) (Miss. 1999), the Mississippi Supreme Court held:

When on appeal one convicted of a criminal offense challenges the legal sufficiency of the evidence, our authority to interfere with the jury’s verdict is quite limited. We proceed by considering all of the evidence — not just that supporting the case for the prosecution — in the light most consistent with the verdict. We give [the] prosecution the benefit of all favorable inferences that may reasonably be drawn from the evidence. If the facts and inferences so considered point in favor of the accused with sufficient force that reasonable men could not have found beyond a reasonable doubt that he was guilty, reversal and discharge are required. On the other hand, if there is in the record substantial evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions, the verdict of guilty is thus placed beyond our authority to disturb.

¶ 12. Our consideration begins with a review of two statutes. First, the armed robbery statute, Mississippi Code Annotated Section 97-3-79 (Rev.2000), provides in pertinent part:

Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery....

Second, the attempt to commit an offense statute, Mississippi Code Annotated Section 97-1-7 (Rev.2000), provides in pertinent part:

Every person who shall design and endeavor to commit an offense, and shall do any overt act toward the commission thereof, but shall fail therein, or shall be prevented from committing the same, on conviction thereof, shall, where no provision is made by law for the punishment of such offense, be punished.... for an amount not greater than is prescribed for the actual commission of the offense so attempted.

¶ 13. Broomfield and Flewellen were charged and convicted of armed robbery. However, they did not complete the mission they embarked upon when they entered the hotel room that night. Mississippi Code Annotated Section 97-3-79 (Rev.2000) provides that a person may be convicted of armed robbery if an attempt is made. Mississippi Code Annotated Section 97-1-7 (Rev.2000) contemplates a crime for attempt to commit any offense if the person makes any overt act toward the commission of the crime, but for whatever reason he fails to complete the necessary acts. These statutes establish the requisite elements that the State must prove to obtain a conviction of armed robbery.

¶ 14. For Broomfield and Flewellen to be guilty of armed robbery, the State must prove that (1) Broomfield and Flewellen attempted to take from the presence and against the will of Jones and Sullivan money or personal property, (2) by violence or by putting Jones and Sullivan in fear of immediate injury by the exhibition of a deadly weapon, and (3) Flewellen and Broomfield committed some overt act toward the commission of the crime. The jury determined that the State proved each of these elements, beyond a reasonable doubt, and found Broomfield and Flewellen guilty.

¶ 15. In this appeal, the second and third listed elements are not at issue. The evidence that Broomfield and Flewellen entered the hotel room uninvited, brandishing a firearm, and screaming for the inhabitants to be quiet was sufficient to establish that violence was used and that Jones and Sullivan were placed in fear of immediate injury by the exhibition of a deadly weapon. Likewise, these same acts clearly establish that Flewellen and Broomfield committed an overt act toward the commission of the crime.

¶ 16. Our review turns to whether Broomfield and Flewellen attempted to take money or property from the presence and against the will of Jones and Sullivan. Our guiding principle is that the jury is the sole judge of the weight and worth of testimony. Brown v. State, 726 So.2d 248, 250(¶ 8) (Miss.Ct.App.1998). The jury may draw any reasonable inferences from the evidence. Tolbert v. State, 407 So.2d 815, 820 (Miss.1981). We look to the evidence that was considered by the jury and to what inferences could have been drawn by the jury to find the “intent” necessary to satisfy the “attempt to take” element of armed robbery.

¶ 17. Had Broomfield and Flewellen not aborted their mission that night, their intent would have been known by their direct actions. However, this does not mean that the crime of attempted armed robbery was not committed. It is for the jury to determine whether they possessed the required “intent to take.”

¶ 18. In Perry v. State, 435 So.2d 680 (Miss.1983), two men entered a savings and loan. One man approached a teller at the counter and pulled a gun while the second approached the branch manager at her desk. The first man then approached the lounge area, grabbed another employee and forced her and another female employee to stand against the wall, telling them not to move. The men then scuffled with the first two women by the counter. One of the tellers attempted to activate an alarm. Simultaneously, a buzzer signaled that a customer was at the drive-in window. The men fled apparently believing that the alarm had been set off. Both men were convicted of attempted armed robbery.

¶ 19. The appellants argued that the State failed to prove a specific intent to take, since the evidence only showed that appellants entered the building and pointed a gun at an employee while his partner assaulted the other employees. The appellants further asserted that since there was no demand for money their actions could indicate the probability of other offenses such as kidnaping, rape, or murder, rather than robbery. The supreme court rejected this argument as frivolous and held that “the specific intent to rob was shown in the present case overwhelmingly by all of the facts and the inferences.”

¶ 20. The difference between Perry and this case is that the actions took place in a bank instead of a hotel room. Nevertheless, the evidence of the manner of entry was identical, ie., the appellants entered with a weapon and assaulted the women, no demand for money or personal property was ever made, and that their plan was abandoned.

¶ 21. Our courts have also considered a number of cases where the “intent” necessary to prove an “attempt to steal” element of burglary and robbery was considered. See Crawford v. State, 839 So.2d 594, 595(¶ 5) (Miss.Ct.App.2003); Brown v. State, 799 So.2d 870, 872(¶ 8) (Miss.2001); Perry v. State, 435 So.2d 680, 681 (Miss. 1983); Williams v. State, 317 So.2d 425, 427 (Miss.1975); Newburn v. State, 205 So.2d 260, 265 (Miss.1967); Thames v. State, 221 Miss. 573, 577, 73 So.2d 134, 136 (1954); Nichols v. State, 207 Miss. 291, 296, 42 So.2d 201, 202 (1949). Although these were burglary and not armed robbery convictions, the point is the same. The courts considered whether the intruder’s conduct could support an inference that the intruder had a larcenous intent. Therefore, we have no difficulty in holding that the larcenous intent could be inferred here, to sustain a conviction for armed robbery.

¶ 22. Recently, the Mississippi Court of Appeals unanimously held that an “inference of the intent to steal may arise from proof of the breaking and entering.” Crawford v. State, 839 So.2d 594, 595(¶ 6) (Miss.Ct.App.2003) (citing Gillum v. State, 468 So.2d 856, 859 (Miss.1985)). We reasoned that:

Since those committing burglary usually have no occasion to announce their intentions, evidence of the required intent usually arises only from inferences.
Some presumptions are to be indulged in against one who enters a building unbidden at a late hour of night, else the burglar caught without booty might escape the penalties of the law. People are not accustomed in the nighttime to enter homes of others, when asleep, with innocent purposes. The usual object is theft; and this is the inference ordinarily to be drawn in the absence of explanation from breaking and entering at night accompanied by flight when discovered, even though nothing has been taken.

Crawford, 839 So.2d at 595(¶ 5) (quoting Brown v. State, 799 So.2d 870, 872(¶ 8) (Miss.2001); Nichols v. State, 207 Miss. 291, 296-97, 42 So.2d 201, 202 (1949)) (emphasis added). This language and the facts in Crawford describe the situation we encounter here.

¶ 23. Paul Crawford entered the home of Patrick Hamlin and Hamlin’s mother without permission while Patrick was away. Crawford, 839 So.2d at 595(¶ 2). Patrick returned home to his mother and noticed Crawford in the house. Crawford then quickly exited the front door. Id. Crawford argued that there was no evidence that any items of value had yet been taken or even disturbed. Id. at (¶ 4). Crawford was convicted of burglary. Id. at (¶ 1). On appeal, Crawford argued that the evidence failed to demonstrate any proof of his intent to steal. This Court found that the absence of direct evidence was not fatal on this issue. Indeed, in a unanimous decision, this Court concluded that “an inference of the intent to steal may arise from proof of breaking and entering.” Id. at (¶ 6). Here, just as in Crawford, an inference of the intent to take or steal may arise from the evidence of Flewellen’s and Broomfield’s unlawful entry.

¶ 24. The supreme court has held that “the State seldom has direct and positive testimony expressly showing the specific intent of an intruder at the time he unlawfully breaks into a dwelling house; however, such testimony is not essential to establish the intent to commit a crime.” Newburn v. State, 205 So.2d 260, 265 (Miss.1967). In Newburn, the court concluded that “[ijntent is an emotional operation of the mind, and is usually shown by acts and declarations of the defendant coupled with facts and circumstances surrounding him at the time. Defendant’s intention is manifested largely by the things he does.” Id.

¶ 25. We must examine the evidence and the inferences that the jury could have reasonably drawn. Broomfield and Flewellen were identified as the two men who broke into the hotel room uninvited that night. They had a gun and assaulted one of the victims with the gun. Upon their entry, they repeatedly screamed obscenities and instructed the victims to be quiet. One of the intruders shoved Sullivan down in her chair and hit Jones a couple of times in the back of the head. During the struggle, two other men entered the room and forced Sullivan to the floor. One man yelled, “grab the duct tape, duct tape their eyes, duct tape their mouth.”

¶ 26. The entire encounter was brief. Clearly, Broomfield and Flewellen did not complete what they had planned and had in store for Jones and Sullivan. Broom-field and Flewellen aborted their plans because they encountered continuous screams and unexpected resistance. One of the intruders urged the others to leave. They then abruptly left the room, abandoning their plans.

¶ 27. The jury considered the evidence of the unlawful entry. The jury considered the fact that Broomfield and Flewel-len were unexpectedly met with loud screams and resistance by their victims. Broomfield and Flewellen fled the room as quickly as they entered. Jones testified that Broomfield and Flewellen did not announce their intentions but that they clearly had an unlawful purpose.

¶ 28. Sullivan was asked whether any of the men said anything about taking any property. She testified, “I didn’t give them time to say anything. As soon as he walked in with the gun and I saw it pointed at my head, I started fighting. I didn’t want it pointed at my head anymore.”

¶ 29. There was also testimony about Jones’s watch. Jones testified that, prior to the assailants’ entry, she had her watch on her wrist. The watch was not on her wrist after the incident. Instead, it was found on the floor on the opposite side of the room from where Jones was standing. Jones confirmed that she did not take the watch off. It was reasonable for the jury to infer that the watch could have come off during the struggle. It was likewise reasonable for the jury to infer that one of the assailants removed the watch with the intent to take it from the room.

¶ 30. Flewellen’s and Broomfield’s actions in the hotel room went beyond mere preparation and were clearly sufficient overt acts to support the conviction of attempted armed robbery. The jury was free to infer that the plan to commit armed robbery was spoiled when they encountered continuous screams and unexpected resistance. Likewise, the jury was also free to infer that there was an attempt to take the watch or other personal property. The specific intent to rob was shown by all of the facts and the reasonable inferences drawn therefrom. It was within the jury’s province to draw reasonable inferences from the evidence based on their experience and common sense. Lewis v. State, 573 So.2d 719, 723 (Miss.1990). A jury’s finding of fact is not to be overturned when there is credible evidence in the record from which the jury could have reasonably inferred the offense. Bailey v. State, 785 So.2d 1071, 1075(1113) (Miss. 2001).

¶ 31. The dissent unfortunately attempts to support its position by questioning and attacking the motive of the majority’s conclusion. Nothing could be further from the truth. Our system of justice allows the jury to make logical and reasonable inferences and presumptions. We can be certain that Broomfield and Flewellen did not enter the hotel room that night to commit the Lindbergh kidnaping, as flippantly suggested by the dissent. The dissent prefers to substitute its judgment for that of the jury. We do not. Based on the standard of review set forth in Manning v. State, 735 So.2d 323, 333(¶ 10) (Miss.1999), we do not have the authority here to disturb the jury’s verdict.

¶ 32. The jury’s task was to determine the intent of Broomfield and Flewellen and to decide whether they committed the crime of armed robbery. Their intent was a matter that could be inferred from the circumstances. Brown v. State, 799 So.2d 870, 872(118) (Miss.2001). The issue of intent is a factual determination and is within the exclusive province of the jury, under appropriate instructions from the court. Williams v. State, 317 So.2d 425, 427 (Miss.1975). Here, considering all of the circumstances, it was a logical inference or presumption for the jury to find that Broomfield and Flewellen had the intent, and indeed attempted, to “take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon,” as required under Mississippi Code Annotated Section 97-3-79 (Rev.2000) to establish the crime of armed robbery.

¶ 33. We find that the evidence was sufficient for the jury to find Broomfield and Flewellen guilty of armed robbery. Thus, we find that this assignment of error is without merit.

2. Whether the verdict is against the overwhelming weight of the evidence.

¶ 34. Flewellen asserts that the verdict was against the overwhelming weight of the evidence. The standard of review we must use is as follows:

In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal. As such, if the verdict is against the overwhelming weight of the evidence, then a new trial is proper.

Baker v. State, 802 So.2d 77, 81(¶ 14) (Miss.2001) (quoting Dudley v. State, 719 So.2d 180, 182(¶ 8) (Miss.1998)).

¶ 35. At trial, the defense presented no credible evidence tending to demonstrate the innocence of Broomfield and Flewellen nor a reasonable explanation for their actions. The jury heard the testimony of several State witnesses that implicated Broomfield and Flewellen. Both Broomfield and Flewellen were identified as the men who entered the hotel room that night. Flewellen was identified as the man who “had the gun,” and Broomfield was identified as the man who had a glove. The forensic scientist testified that the piece of duct tape found in the hotel room matched the roll of duet tape found in the suspect’s vehicle. Latex gloves were also discovered in the vehicle. In summary, the testimony concerning the manner in which the defendants entered the room, their subsequent conduct, the fact that they fled and resisted arrest, and that a reasonably supported inference existed that there was an attempt to take Jones’s watch all sustain a finding by a reasonable minded jury that Broomfield and Flewellen committed armed robbery.

¶ 36. Accepting as true all evidence favorable to the State, this Court is compelled to conclude that the evidence was of such weight to support the jury’s findings. We do not find that the evidence in favor of the defendants was overwhelmingly contrary to the verdict. Therefore, we find this assignment of error to be without merit.

3. Whether the trial court erred in admitting a redacted version of Broomfield’s statement.

¶ 37. Broomfield and Flewellen assert that the court erred in admitting a redacted version of a statement Broomfield made to Deputy Huguet. Outside the presence of the jury, Deputy Huguet testified that he asked Broomfield “what happened at the Crystal Inn.” Broomfield replied, “I stayed in the car, the other two went in.” The court determined that the statement was not admissible in its entirety. The court ordered Deputy Huguet not to refer to any others. In the jury’s presence, Deputy Huguet responded to the question that Broomfield replied that “he stayed in the car.” The court then instructed the jury that the statement was not to be considered as evidence of guilt against Flewellen and Moody and that no inference of guilt of the co-defendants was to be drawn therefrom. Broomfield now asserts that the admission of his own redacted statement violated his co-defendants’ right to cross-examine witnesses.

¶ 38. Broomfield has no right or standing to assert this as error. First, the right to cross-examination may not be vicariously asserted. Ware v. State, 410 So.2d 1330, 1331 (Miss.1982). Second, Broomfield has cited no authority to assert these constitutional rights vicariously. “Issues not properly briefed and supported by logical argument and, where appropriate, citation to relevant authority, will not normally be considered.” Hoops v. State, 681 So.2d 521, 535 (Miss.1996). Finding either of these reasons sufficient to disregard this alleged error, we decline Broom-field’s request for relief on this basis.

¶ 39. We next address Flewel-len’s argument that the admission of Broomfield’s statement violated his constitutional right to cross-examine witnesses. The Confrontation Clause of the Sixth Amendment of the United States Constitution, extended to the states by the Fourteenth Amendment, guarantees the right of a criminal defendant “to be confronted with the witnesses against him.” ' The right of confrontation includes the right to cross-examine witnesses. Richardson v. Marsh, 481 U.S. 200, 207, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987).

¶ 40. In overruling Flewellen’s objection, the trial judge determined that Richardson controlled. In Richardson, the co-defendant’s testimony was not incriminating on its face, and became so only when linked with evidence introduced later at trial. The United States Supreme Court held “that the confrontation clause is not violated by the admission of a nontestify-ing co-defendant’s confession with a proper limiting instruction when ... the confession is redacted to eliminate not only the defendant’s name, but any reference to his or her existence.” Id. at 211, 107 S.Ct. 1702.

¶ 41. Generally, to avoid violating the defendant’s right to confront witnesses against him, out-of-court statements by a co-defendant which incriminate the defendant should not be admitted into evidence during the State’s case-in-chief since it cannot be known whether the co-defendant will testify, and be subject to cross-examination. Smith v. State, 754 So.2d 1159, 1162(¶ 8) (Miss.2000). This principle was established by the United States Supreme Court in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In Bruton, the co-defendant’s confession “expressly implicat[ed] the defendant as his accomplice,” and the Supreme Court held that the Confrontation Clause of the Sixth Amendment is violated when a co-defendant’s incriminating statement is introduced at a joint trial, even if the jury is instructed to consider the statement only against the person who made it. Id. at 126, 88 S.Ct. 1620. The court held “there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.” Id. at 135, 88 S.Ct. 1620. The court recognized a defendant’s natural “motivation to shift blame onto others” and found that accusations between co-defendants are “inevitably suspect.” Id. According to the court, “[t]he unreliability of such evidence is intolerably compounded when the alleged accomplice ... does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed.” Id. Therefore, Bruton requires the trial judge to answer the question of whether a particular confession is or is not “powerfully incriminating” on a case-by-case basis. Richardson, 481 U.S. at 215, 107 S.Ct. 1702.

¶ 42. In this ease, the trial judge determined that the testimony was not “powerfully incriminating.” Indeed, Broomfield’s statement neither directly mentioned Flewellen nor implicated Flew-ellen in any criminal activity. The statement was not incriminating on its face, as required by Bruton. “Where the co-defendant’s statements do not facially implicate the defendant in the crime, there is no Bruton error.” Richardson, 481 U.S. at 208-09, 107 S.Ct. 1702.

¶ 43. We find that Flewellen’s Sixth Amendment right of confrontation was not violated by the admission of Bloomfield’s redacted statement. The record reflects that all references to Flewellen were omitted, as required by Richardson. See Strahan v. State, 729 So.2d 800, 804(¶ 14) (Miss.1998) (clearly not a violation of defendant’s confrontation rights to conduct a joint trial and admit co-defendant’s statement where all references to co-defendant were deleted). Therefore, we find that this assignment of error is without merit.

k. Whether the trial court erred in admitting Flewellen’s wallet into evidence.

¶ 44. The State attempted to introduce Flewellen’s wallet into evidence. The defense immediately objected. The wallet was found in the car Flewellen was driving. The wallet was found in an inventory search, pursuant to routine police procedure. The wallet contained a swipe card, similar to cards that are regularly used to gain access to hotel rooms. The State did not present evidence that the swipe card was in fact used to gain entry into the hotel room. Therefore, the defense claimed that the wallet was inadmissible because there was no evidence offered to show that the swipe card was used in the commission of the crime. Overruling Flewellen’s objection, the court found that the wallet and its contents were relevant because it was found “inside the car that was chased and from which the defendant’s fled.”

¶ 45. The trial judge has the discretion to consider and decide what evidence is admissible, and unless this judicial discretion is so abused as to be prejudicial to the accused, then the ruling of the lower court must be affirmed. Robinson v. State, 758 So.2d 480, 488(¶ 31) (Miss.Ct. App.2000). In Townsend v. State, 681 So.2d 497, 507 (Miss.1996), the Mississippi Supreme Court held:

articles such as tools and weapons found near the place or scene of crime or near the place where the defendant was arrested, have been admitted in evidence, (citation omitted). This is true even where it is not claimed nor proved that they were used in the commission of the alleged crime in cases where the evidence has probative weight, or where they constitute a part of the surrounding scene or picture....

¶ 46. We find that the trial court did not abuse its discretion in admitting the wallet and its contents because it was found in Flewellen’s car. The evidence connected Flewellen with the crime and constituted part of the surrounding scene. Furthermore, items seized in an inventory search of the vehicle pursuant to' routine police procedure are admissible. Robinson v. State, 418 So.2d 749, 752 (Miss.1982). Therefore, the trial judge did not abuse his discretion, and this assignment of error is without merit.

5. Whether the trial court erred in overruling Flewellen’s motions for mistrial.

¶ 47. Flewellen contends that the trial court erred in overruling his motions for mistrial on three grounds: (1) a juror possibly saw him in the holding cell during the lunch break; (2) Bloomfield’s reply, that “he sat in the car” was prejudicial; and (3) Officer Sipriano’s statement about there being a report of an armed robbery was improper and tainted the jury. The disposition of a motion for mistrial is within the sound discretion of the trial court, whose ruling will not be disturbed absent a showing of abuse of that discretion. Crawford v. State, 787 So.2d 1236, 1244(¶ 31) (Miss.2001).

¶ 48. On the first ground cited, Flewellen never actually moved for a mistrial. Flewellen’s counsel mentioned it to the judge after the jury was excused for the day. The judge stated that he could bring it up the next morning. However, Flewellen’s counsel failed to bring the matter to the court’s attention the next morning, and it was not made on the record. Therefore, we find that the claim was abandoned, and the trial court did all that was requested of it. Wetz v. State, 503 So.2d 803, 810 (Miss.1987). Furthermore, the failure to pursue this issue at trial leaves the record devoid of any proof that any juror actually saw Flewellen in the holding cell. The court never had an opportunity to question the juror(s) to determine if it occurred or resulted in any prejudice to Flewellen.

¶ 49. Next, we previously addressed the admission of Bloomfield’s redacted statement. Because we find it not to be error, this ground is not sufficient to support a mistrial.

¶ 50. We now address Flewellen’s third ground in this assignment of error. During the direct-examination of Officer Sipriano, after being asked what he did with Bloomfield once he was in custody, the officer testified:

[a]t that point Officer Huguet had returned to where we had this individual at Imilda and Klein, and a Harrison County unit had pulled up and had let us know that they had an armed robbery at the Crystal Inn on Canal Road and that they just had an armed robbery and that this could possibly be the suspect from the armed robbery.

¶ 51. Flewellen’s counsel objected, and the objection was sustained. Flewellen’s counsel later moved for a mistrial stating that there had been nothing provided to the defense in discovery about this armed robbery report. The trial court ruled that it “disagreed] with your characterization that is a discovery violation. It is a basis for cross-examination. You were given that opportunity and that motion for mistrial is denied.”

¶ 52. Flewellen has failed to show how he was prejudiced. Therefore, he has not demonstrated that the court has abused its discretion in overruling his motion for mistrial. See Alexander v. State, 759 So.2d 411, 419 (¶¶ 26-28) (Miss.2000) (a presumption of correctness exists in rulings and remedies of the trial court and appellant has the burden of demonstrating reversible error). Therefore, we find that the trial judge did not abuse his discretion in denying the motions for mistrial and that this assignment of error is without merit.

6. Whether the trial court erred in failing to grant a severance sua sponte.

¶ 53. Flewellen argues that the trial court erred in not granting him a severance. Flewellen bases his argument on Bloomfield’s reply to Deputy Huguet’s question, that “[Bloomfield] sat in the car.”

¶ 54. “The decision whether to grant a severance depends on whether the severance is necessary to promote a fair determination of the defendant’s guilt or innocence.” Collins v. State, 817 So.2d 644, 659(¶ 50) (Miss.Ct.App.2002). The decision to grant a severance is within the discretion of the trial court. URCCC 9.03. Unless one can show actual prejudice, a trial court cannot be found to have abused its discretion. Collins, 817 So.2d at 651(¶ 50).

¶ 55. We note that Flewellen was made aware of Bloomfield’s statement prior to trial through discovery, but did not move for a severance before trial. As to the merits of this argument, Bloomfield’s statement that “he sat in the car,” did not even mention Flewellen or implicate Flewellen in any criminal activity. Further, there does not appear to be any conflict of interest between Bloomfield and Flewellen. Neither put on any type of defense. The evidence introduced at trial supported the guilt of both defendants. It is not error to deny a severance where the evidence goes to the guilt of both defendants. Blanks v. State, 451 So.2d 775, 777 (Miss.1984). There is no evidence to indicate an abuse of discretion by the trial court. This issue is without merit.

7. Whether the jury was instructed improperly.

¶ 56. Flewellen first asserts that the “jury was instructed improperly with regard to a lesser included offense.” The State submits that Flewellen did not submit any such charge, nor did he object to the form-of-the-verdict instruction which authorized the jury to find him guilty of armed robbery or not guilty. Failure to request an instruction at trial waives an assertion of error on appeal. Materials Transp. Co. v. Newman, 65 6 So.2d 1199, 1203 (Miss.1995); see Russell v. State, 607 So.2d 1107, 1117 (Miss.1992) (failure to object constitutes a waiver of the issue for appeal). Flewellen did not ask for the jury to be instructed on a lesser offense. Therefore, the jury was properly instructed. This argument is without merit.

¶ 57. Flewellen next contends that the trial court committed reversible error in granting instruction C-5-A, which charged the jury that “the statement made by Bloomfield to Huguet may not be considered as evidence of guilt against the defendants ... Flewellen and ... Moody. And, no inference of guilt of ... Flewellen and ... Moody may be drawn therefrom.” At the time this instruction was tendered, Flewellen did not make a contemporaneous objection. An issue is waived on appeal where there was no contemporaneous objection. Russell v. State, 607 So.2d 1107, 1117 (Miss.1992). Accordingly, we will not address this issue.

¶ 58. THE JUDGMENT OF THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HARRISON COUNTY OF CONVICTION OF ARMED ROBBERY AND SENTENCES OF THIRTY-FIVE YEARS FOR JERROD BROOMFIELD AND FORTY YEARS FOR MARQUISE FLEWEL-LEN IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS ARE ASSESSED TO HARRISON COUNTY.

McMILLIN, C.J., SOUTHWICK, P.J., MYERS AND CHANDLER, JJ., CONCUR. LEE, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY BRIDGES AND THOMAS, JJ. KING, P.J., AND IRVING, J., DISSENT WITHOUT SEPARATE WRITTEN OPINION.

LEE, J.,

dissenting:

¶ 59. The majority modifies the language of the original opinion, but not the result. Therefore, I re-affirm and repeat my original dissent in its entirety.

¶ 60. There is little doubt that a horrible crime was committed and that the victims were placed in extreme fear for their lives. Further, there is little doubt that the defendants committed a crime. The point upon which I strongly disagree with the majority is that the defendants, although clearly guilty of violent acts, were not guilty of the crime of armed robbery for which they were ultimately charged and convicted. Accordingly, I find that we have no recourse except to reverse and render.

¶ 61. The majority cites the statute pertaining to armed robbery:

Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery....

Miss.Code Ann. § 97-3-9 (Rev.2000). As evidence that the elements of armed robbery were proven, the majority claims that the appellants attempted to take one of the victim’s watch, and such intent to steal could be inferred from the circumstances. I look to the transcript and find such inference is not logical. On direct examination, one of the victims, April Jones, responded:

PROSECUTOR: Let me show you what’s been marked as State’s Exhibit 4 for identification. Do you recognize that?
JONES: Yes.
PROSECUTOR: What is that?
JONES: That’s my watch. PROSECUTOR: And is that the watch you were wearing the night of this incident?
JONES: Yes.
PROSECUTOR: All right. And did you have it on when the men came in the room?
JONES: Yes.
PROSECUTOR: How did it get on the floor?
JONES: I think during the struggle and the fight it must have came off. DEFENSE COUNSEL: Your honor, we object to what she thinks.
COURT: Overruled. She can answer if he [sic] she knows.
PROSECUTOR: Did you take it off and put it there?
JONES: No.
PROSECUTOR: Did one of the men take it off?
JONES: Not like undo it, but I mean, it could have broken whenever he grabbed my arms in the fight and struggle.
DEFENSE COUNSEL: We object to it could have broken.
COURT: Sustained.
PROSECUTOR: You don’t know how it got off, but you didn’t take it off?
JONES: Right.

¶ 62. Later in her testimony, Jones referred to her statement the night of the incident to the police. In her statement, she recalled a struggle in which one of the men grabbed both of her arms, remembered that none of the men ever commented that they were attempting to rob the women, and noted that the men bypassed in plain view personal items on the sink, including her cell phone and wallet.

¶ 63. The majority cites the rule that the jury may draw any reasonable inferences from the evidence. Tolbert v. State, 407 So.2d 815, 820 (Miss.1981). I find that the inference of guilt of the crime of armed robbery is not reasonable given the evidence presented. The armed robbery statute mandates that one guilty of such crime must have taken or attempted to take personal property from the person or her presence by violence or use of fear. Here, there is no question that the men attempted to instill fear in the women, nor is there question that the men’s motives were certainly criminal in nature. What has not been proven is that there was a taking or an attempt to take property. The fact that a watch was on one woman’s arm at the entrance of the men coupled with the fact that the watch was on the floor after the men left in no way can be stretched to meet the element of taking or attempt to have taken. The judge should have granted the requested motion for directed verdict or, post-trial, should have granted the motion for judgment notwithstanding the verdict.

¶ 64. There can be no doubt that this was a horribly traumatic and terrifying event for these victims. Further, there can be little, if any, doubt that the defendants were guilty of violent acts for which they accordingly should be punished. Where serious doubt exists, however, is in the issue of whether the defendants committed armed robbery. The majority goes to great lengths in its effort to affirm the conviction, claiming that at the beginning of the melee one of the victims testified that she was wearing a watch and afterward she found it on the floor.

¶ 65. The majority cites numerous cases to make its point, but misses. Did these defendants commit a crime? Yes. Was it armed robbery? Certainly not. These men might as well have been charged with the Lindbergh kidnaping, for they are just as guilty of this ancient crime as they are of having committed armed robbery. Under the majority’s reasoning, they could have just as easily been guilty of attempted rape. After all, these were two females in a motel room and would that have not been the logical motive of the intruders? They had duct tape so surely they intended on taking them as hostages, and they should have been convicted of this.

¶ 66. While I recognize that it is politically correct to affirm a conviction, especially in a case such as this where an apparent crime did take place, we must hold to the principle that we are a nation of laws and not men. Under our system of justice, one cannot arbitrarily be charged with crimes he or she does not commit. If this happens, we can count ourselves as no better than a dictatorship — declining to follow laws and leaving justice to the mercy of those in power. Therefore, I dissent.

BRIDGES AND THOMAS, JJ., JOIN THIS SEPARATE WRITTEN OPINION.


author: KING, P.J.,

text:
    Victor HURNS, Appellant v. MISSISSIPPI DEPARTMENT OF CORRECTIONS, et al., Appellees.
    No. 2002-CP-01895-COA.
    Court of Appeals of Mississippi.
    March 2, 2004.
    Rehearing Denied May 4, 2004.
    Certiorari Denied July 22, 2004.

      Victor Hums, appellant, pro se.
    Office of the Attorney General by Jane L. Mapp, attorney for appellee.
    Before KING, P.J., LEE and CHANDLER, JJ.
   KING, P.J.,

for the Court.

¶ 1. Victor Hums filed a grievance with the Mississippi Department of Corrections (the MDOC) Administrative Remedy Program, pursuant to Mississippi Code Annotated Sections 47-5-801 through 47-5-807 (Rev.2000), asserting that his prisoner status was wrongfully reclassified. The grievance was denied, and he sought judicial review by filing an action under 42 United States Code Section 1983 in the Sunflower County Circuit Court. The circuit court dismissed the action. Hums appeals to this Court asserting: (1) the circuit court abused its discretion by making erroneous factual findings, (2) the circuit court abused its discretion in applying an incorrect legal standard, (3) the circuit court abused its discretion by adding factual allegations to his complaint, (4) circuit court erred in basing its decision on erroneous legal conclusions, (5) the MDOC violated his rights secured under the First Amendment to the United States Constitution, (6) the MDOC violated his rights secured under the Fifth Amendment to the United States Constitution, (7) the MDOC denied him a fair and impartial grievance hearing, (8) the MDOC violated its own administrative policies, (9) whether the administrative decision was arbitrary and capricious, (10) the MDOC violated his rights secured under the Fourteenth Amendment to the United States Constitution, and (11) the MDOC regulations were violated by holding him beyond a 180 day limitation. Finding no error, we affirm.

FACTS

¶ 2. Hums is an habitual offender serving a sentence of life imprisonment for murder. In December of 2001, Hums was identified as a “leader” in a gang called the “gangster disciples.” He was placed in administrative segregation, and was transferred from a maximum security unit to a security threat management unit. Hums appeared before a MDOC classification committee, which changed his inmate status from C custody to a more restrictive D custody status, which led to this appeal.

DISCUSSION

1. ERRONEOUS FACTUAL FINDINGS

¶ 3. The circuit court’s order stated that Hums was initially placed in administrative segregation pending an investigation on October 4, 2001, but the correct date was December 4, 2001. Additionally the circuit court’s order stated that Hurns was reclassified to D custody status on December 4, 2001, but the correct date was December 6, 2001. Typographical errors in orders may be corrected upon proper motion by an aggrieved party. See, e.g., Lee v. Coahoma County, Mississippi, 37 F.3d 1068, 1069 (5th Cir.1993); Britt v. Whitmire, 956 F.2d 509, 512 (5th Cir.1992). If an error in an order or judgment is such that it can be plainly seen to be a typographical error that did not effect the law or facts applied to a case, it is not grounds to reverse. See, e.g., Bower v. Bower, 758 So.2d 405 (¶ 19) (Miss.2000). The record shows that the specific dates the circuit court referred to had no bearing on its adjudication. In fact, logically it would seem that if the circuit court had found that Hurns was placed in a more restrictive environment two months prior to any review by the classification committee, Hurns case of showing an arbitrary or capricious decision would be furthered. We find no merit to this issue.

2.THE CIRCUIT COURT APPLIED AN INCORRECT LEGAL STANDARD

¶ 4. The circuit court found there was no cause of action stated under the Fourteenth Amendment to the United States Constitution. The circuit court applied the correct law to this claim. See, e.g., Carson v. Hargett, 689 So.2d 753, 754 (1996). “Inmates have neither a property nor liberty interest in any particular housing assignment or custodial classification under the United States Constitution or Mississippi law.” McDonald v. Jones, 816 So.2d 448(¶ 8) (Miss.Ct.App.2002). Any due process claim must arise from the MDOC’s own misapplication of reasonable prisoner classification regulations. Id. In this case, the allegations and attached documents in this case do not support an arbitrary or capacious finding.

¶ 5. Upon appeal, Hurns argues that he asserted this claim of arbitrary and capricious action under the Eighth Amendment to the United States Constitution. The law is clear that a prisoner’s Eighth Amendment rights are only infringed upon by “extreme deprivation” outside the normal bounds of society. Davis v. Scott, 157 F.3d 1003, 1006 (5th Cir.1998). Hurns asserts nothing that could possibly rise to such a level. Therefore, it is clear no colorable claim was raised.

3. THE CIRCUIT COURT ERRED IN ADDING FACTUAL ALLEGATION TO THE COMPLAINT

¶ 6. Hurns contends that the circuit court erred in stating that he asserted a due process claim in contending that his “liberty” interests were infringed upon. The circuit court made no such statement. The circuit court’s order stated, “Prisoners have no constitutionally protected liberty or property interest per se in their classification under the due process clause.” This sentence correctly states the law applicable to the ease. See Sandin v. Conner, 515 U.S. 472, 487, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). There is no merit to this assignment of error.

4. THE CIRCUIT COURT RELIED ON ERRONEOUS LEGAL CONCLUSIONS

¶ 7. The substance of this issue is addressed in issue two. Hums’ prisoner classification gives rise to no justiciable constitutional claims. Carson, 689 So.2d at 754; Davis v. Scott, 157 F.3d at 1006. There is no merit to this assignment of error.

5. THE CIRCUIT COURT ERRED IN DISMISSING A FIRST AMENDMENT CLAIM

¶ 8. Hums asserted that the more restrictive custody status infringed upon his rights arising under the First Amendment to the United States Constitution. While the circuit court’s order failed to state a specific finding on this claim, it seems clear the circuit court found no merit to it. A prisoner’s first amendment rights may be restricted pursuant to legitimate prisoner classification. Thompson v. Patteson, 985 F.2d 202, 206 (5th Cir.1993). Absent a showing of arbitrariness in classification, no First Amendment claim arose. Id. As Hums failed to assert facts supporting such a showing, no issue of any merit could arise. There is no merit to this assignment of error.

6. THE CIRCUIT COURT ERRED IN DISMISSING A FIFTH AMENDMENT CLAIM

¶ 9. Hums contends that other prisoners were transferred from his custody status back to a less restrictive custody status, while he was not reclassified. This is an issue which arose after reclassification, with no indication that it was properly presented for administrative relief. It is therefore not properly before this Court. Miss Code Ann. Section 47-5-803(2) (Rev. 2000). Nor was it presented to the trial court and is therefore procedurally barred. Douglas v. Blackmon, 759 So.2d 1217, 1220 (Miss.2000).

7. WHETHER MDOC CONDUCTED A FAIR AND IMPARTIAL HEARING

¶ 10. Hums argued that the MDOC acted arbitrarily and/or capriciously in changing his custody status. However, as previously discussed, there is no evidence to support such a finding. Hums’ sole contention is that a high level prison official was necessarily biased against him simply because of his employment with the MDOC. This allegation is insufficient to support a claim arising from prisoner classification. See, e.g., McDonald, 816 So.2d at (¶ 6). There is no merit to this assignment of error.

8,9. MDOC VIOLATED ITS OWN ADMINISTRATIVE PROCEDURES

¶ 11. In issues 8 and 9, Hums asserted that the MDOC failed to present evidence adequate to support his reclassification, and therefore acted arbitrarily and/or capriciously in reclassifying his custody status. However, his own pleadings admit that an administrative hearing was held, that an investigation was conducted, and that relevant evidence was presented at the hearing. Nothing exists to show that the MDOC failed to routinely act pursuant to its regulations. This procedure is all that was due. See, e.g., McDonald, 816 So.2d at (¶ 6).

10. FOURTEENTH AMENDMENT

¶ 12. This matter was addressed in issue two, and is without merit.

11. THE MDOC REGULATIONS WERE VIOLATED IN HOLDING HURNS BEYOND A 180 DAY LIMITATION

¶ 13. Hums asserts that he was placed in administrative segregation, without review by an MDOC classification committee and administrative review, in excess of 180 days. His brief before this Court appears to contradict this assertion. Nevertheless, this assertion was not raised in an administrative review, nor brought before the circuit court, and as such is not reviewable by this Court. See Miss.Code Ann. § 47-5-807 (Rev.2000). This issue is without merit.

¶ 14. THE JUDGMENT OF THE SUNFLOWER COUNTY CIRCUIT COURT DISMISSING THE APPEAL OF GRIEVANCE COMPLAINT IS AFFIRMED. THE APPELLANT IS ASSESSED ALL COSTS OF THIS APPEAL.

SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. McMILLIN, C.J., NOT PARTICIPATING.