author: BRIDGES, J., SOUTHWICK, P.J., BRIDGES, J.,

text:
    MISSISSIPPI DEPARTMENT OF TRANSPORTATION, State of Mississippi, Appellant, v. Susan TROSCLAIR and Bridget Trosclair (Bailes), Appellees.
    No. 2002-CA-00263-COA.
    Court of Appeals of Mississippi.
    July 29, 2003.

      Patrick R. Buchanan, Biloxi, attorney for appellant.
    Joseph H. Montgomery, Lampton O. Williams, Poplarville, attorneys for appel-lee.
   BRIDGES, J.,

for the Court as to sections A, B, C, and D.

¶ 1. Susan Trosclair and Bridget Tros-clair Bailes filed a lawsuit on March 2, 1995, against the Mississippi Department of Transportation (The Department). The lawsuit arose when Susan and Bridget were injured in a one-car accident that occurred on December 3, 1993. The Department filed a motion to dismiss for failure to give timely notice and faffing to file within one year of the date of injury. The Department also filed a summary judgment motion addressing the issues of notice, estoppel, limitations and the constitutionality of the Mississippi Tort Claims Act. Bridget and Susan filed a motion for partial summary judgment, requesting the court to find that the notice of claim and complaint were timely filed. The trial court denied the Department’s motion to dismiss and their summary judgment motion and granted Bridget and Susan’s partial summary judgment motion. The Department filed a second motion for summary judgment which was later granted by the trial court. On appeal, the Mississippi Supreme Court reversed the trial court’s decision and remanded the case. Trosclair v. Mississippi Dep’t of Transp., 757 So.2d 178 (Miss.2000)

¶ 2. On the morning of trial, the parties verbally stipulated that there were no longer any issues in this litigation pertaining to whether or not the Department received proper and/or timely notice of the claims and/or whether or not this litigation was timely commenced. On September 24, 2001, as required by the Mississippi Tort Claims Act, this case was tried as a bench trial before the Honorable Kosta N. Vlahos. On October 23, 2001, the judge found in favor of Bridget and Susan and awarded Susan $47,250 and Bridget $2,750. It is from that judgment that the Department now appeals to this Court. The issues on appeal are as follows:

STATEMENT OF THE ISSUES

I. DID THE TRIAL COURT ERR WHEN IT DETERMINED THAT THE DEFENDANT WAS NEGLIGENT?

II. DID THE TRIAL COURT ERR WHEN IT RETURNED A VERDICT AGAINST THE DEFENDANT FOR FAILURE TO PLACE WARNING SIGNS?

III. DID THE TRIAL COURT ERR WHEN IT RETURNED A VERDICT AGAINST THE DEFENDANT FOR FAILURE TO PLACE ADEQUATE WARNING SIGNS?

IV. DID THE TRIAL COURT ERR WHEN IT RETURNED A VERDICT AGAINST THE DEFENDANT WHEN THE DANGEROUS CONDITION WAS OPEN AND OBVIOUS?

V. DID THE TRIAL COURT ERR WHEN IT FAILED TO FIND THE PLAINTIFF BRIDGET TROSCLAIR BAILES, NEGLIGENT?

VI. DID THE TRIAL COURT ERR BY FAILING TO APPORTION A PERCENTAGE OF FAULT TO THE PLAINTIFF?

VII. DID THE TRIAL COURT ERR WHEN IT FAILED TO ENTER FINDINGS OF FACT AND CONCLUSIONS OF LAW?

VIII. DID THE TRIAL COURT ERR IN FINDING IN FAVOR OF THE PLAINTIFF WHEN THERE WAS SPOLIATION OF EVIDENCE?

FACTS

¶ 3. On December 3, 1993, Bridget was driving in a southerly direction on Highway 49 in Harrison County, Mississippi. Bridget was accompanied by Susan, her aunt by marriage. Bridget and Susan were en route to Alabama to pick up Susan’s daughter-in-law and this was Bridget’s first time driving on Highway 49.

¶ 4. On or about November 2, 1998, the Department had started a maintenance asphalt paving project on the southbound lanes of Highway 49. The project was to be a 1.5 inch overlay over nine miles of the highway. The main overlay work was completed on approximately November 29, 1993. As Bridget and Susan headed south, they suddenly came upon the newly asphalted highway which did not have any yellow side stripe on the left or median margin of the highway, no white edge stripe on the right or shoulder margin of the highway, and only intermittent three to six inch small white marks placed near the approximate center of the twenty-four foot wide pavement at indeterminate lengths. There was also no temporary center striping of four foot lengths on the highway.

¶ 5. Bridget testified that she was driving on the newly paved highway for a little over a mile when she felt her right tire fall off the road. When Bridget tried to correct the situation, by steering her vehicle back onto the highway, her right front tire blew, causing her to lose control, and ultimately causing her vehicle to overturn.

¶ 6. Ruby Lynn Morris, who lived approximately five and a half miles from the scene of the accident and traversed Highway 49 daily, testified that she had observed Bridget’s vehicle go off the road, come back on, and then off again, only to then flip and land in a tree. After seeing the accident, Morris pulled over to the side of the road to offer assistance and when she ran down off the pavement, she realized she had to get down off the pavement; it was in fact a step-off. She had to step down five to six and a half inches. Morris also stated that she did not recall seeing any traffic control signs on the day of the accident.

¶ 7. Michael A. Trosclair, Bridget’s father, went to the scene on the night of the collision and inspected the entire area and observed that there were no markings or warnings in the project area. He also went back to the project site the next day in daylight and confirmed that there were no warning signs in the area. Michael testified that for at least 500 feet along the site of the accident there was a shoulder drop-off of three inches or more. Michael documented the drop-off where Bridget’s tire left the road with a photograph, which showed the distance from the ground to the top of the asphalt to be the same distance as the length of a Cross pen, approximately 5.5 inches.

ANALYSIS

¶ 8. In discussing these eight issues, it is more intelligible to combine certain issues. In addition, because of the division of this Court on the questions involving the Department’s and Bridget’s negligence, those issues are discussed last.

¶ 9. I begin with the discussion of issues II, III, and IV which present the question:

Section A.

DID THE TRIAL COURT ERR WHEN IT HELD THAT THE MDOT’S ACTIONS DID NOT FALL UNDER A GOVERNMENTAL IMMUNITY EXEMPTION PROVIDED BY THE MISSISSIPPI TORT CLAIMS ACT?

¶ 10. This case was brought under the Mississippi Tort Claims Act, which allows negligence actions against state agencies under certain circumstances. Simpson v. City of Pickens, 761 So.2d 855, 860 (¶ 15) (Miss.2000). There is also a requirement that, if the matter comes to trial, it will be conducted as a bench trial. Id. In this situation, “the trial court sits as finder of fact and, when the court’s factual determinations are challenged on appeal, the reviewing court must consider the entire record and is obligated to affirm where there is substantial evidence in the record to support the trial court’s findings.” City of Newton v. Lofton, 840 So.2d 833, 835 (¶ 6) (Miss.2003); Ezell v. Williams, 724 So.2d 396, 397 (¶ 4) (Miss.1998); Mississippi State Hosp. v. Wood, 823 So.2d 598, 601 (¶ 7) (Miss.Ct.App.2002). “The findings of the trial judge will not be disturbed unless the judge abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” City of Newton, 840 So.2d at 835-36 (¶ 6); Stanton v. Delta Reg’l Med. Ctr., 802 So.2d 142, 145 (¶ 6) (Miss.Ct.App.2001).

¶ 11. “The standard of review for a judgment entered following a bench trial is well settled. ‘A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor, and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence.’ ” City of Newton, 840 So.2d at 836 (¶ 7); City of Jackson v. Perry, 764 So.2d 373, 376 (¶ 9) (Miss.2000) (citing Puckett v. Stuckey, 633 So.2d 978, 982 (Miss.1993); Sweet Home Water & Sewer Ass’n v. Lexington Estates, Ltd., 613 So.2d 864, 872 (Miss.1993); Allied Steel Corp. v. Cooper, 607 So.2d 113, 119 (Miss.1992)). “This Court reviews errors of law, which include the proper application of the Mississippi Tort Claims Act, de novo.” City of Newton, 840 So.2d at 836 (¶ 7).

¶ 12. The principal Mississippi Code Annotated section relevant to this issue is Mississippi Code Annotated section 11-46-9(l)(a-x) (Rev.2002). This section is used to determine liability exemptions of governmental entities and their employees acting within the scope of their duties. Further, the pertinent subsections that apply include sections 11 — 46—9(l)(v) and (w). These sections state:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claims:
(v) Arising out of an injury caused by a dangerous condition on the property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care;
(w) Arising out of the absence, condition, malfunction or removal by third parties of any sign, signal, warning device, illumination device, guardrail or median barrier, unless the absence, condition, malfunction or removal is not corrected by the governmental entity responsible for its maintenance within a reasonable time after actual or constructive notice.

Miss.Code Ann. § 11^46-9(l)(v) and (w) (Rev.2002).

¶ 13. After reviewing all of the evidence, the trial judge determined that Bridget and Susan’s injuries were caused by the negligence of the Department. The following facts and circumstances were established by the evidence: (A) there was a dangerous 3-5 inch drop-off along the irregular edge of the pavement that extended over 500 feet; (B) the hazardous condition resulting in the 3-5 inch drop-off and irregular pavement edge was created by the negligence and wrongful conduct of the Department employees; (C) the evidence clearly established that the Department through its employees, either knew or should have known that this dangerous drop-off and irregular edge existed prior to the accident; (D) since the final paving in this area had been completed on November 29 or 30, the Department had adequate opportunity to protect or warn against the hazard created by the drop-off and irregular pavement area; and (E) the Department is liable for failing to warn of this dangerous condition since, as shown by the testimony, the hazard was not obvious to anyone including the investigating officer Otis Kaufman, and Ruby Lynn Morris, who was driving her vehicle behind Susan and Bridget.

¶ 14. The trial court, sitting as the jury, determined that the condition was not open and obvious, which is required for immunity to apply. The trial judge, before overruling a motion for a directed verdict, stated:

The time line that she [Bridget] had to react and discern that it was open and obvious is 1.1 mile and she’s going 55 miles per hour.... At 60 miles per hour you’re going a mile a minute, at 60.[sic] At 66 I guess you’re going 1.25 or something like that a minute. So that’s the time line that they had to go from a road that’s marked to a road that’s not marked as far as, you know, something that’s open and obvious ... I just think this is a tough question because with all due respect to Mr. Buchanan we’ve got to rely on what I tell the jury; you are to evaluate the worth and credibility and believability of the testimony. In doing so you’re supposed to use your good sense. And all of a sudden you’re driving on a highway that is perfectly marked and, you know, within 1.1 miles you go off a roadbed that is not properly marked. I don’t know how open and obvious it was in that narrow time frame of whatever seconds or minutes there were there that she came across this situation.

As stated above, there was also evidence that there were no warning signs or devices at the construction site or area in question which could have alerted Bridget to the dangerous condition. Based on evidence that the condition was not obvious and lacked adequate warning signs or devices, this Court finds that the trial judge made reasonable fact findings.

¶ 15. The trial court applied the correct legal standard and absent a showing that the findings of the trial court were manifestly wrong, clearly erroneous or that the trial court abused its discretion, the trial court’s findings should not be disturbed.

Section B.

VII. DID THE TRIAL COURT ERR WHEN IT FAILED TO ENTER FINDINGS OF FACT AND CONCLUSIONS OF LAW?

¶ 16. Mississippi Rules of Civil Procedure Rule 52(a) specifically states:

In all actions tried upon the facts without a jury the court may, and shall upon the request of any party to the suit or when required by these rules, find the facts specially and state separately its. conclusions of law thereon and judgment shall be entered accordingly.

¶ 17. In Tricon Metals & Services, Inc. v. Topp, 516 So.2d 236, 239 (Miss.1987), the court stated that in cases of any significant complexity the trial court generally should find the facts specially and state separately its conclusions of law. However, the ease sub judice is far from complex, and since the court did not make findings on its own accord, the only other option would be upon the request of any party to the suit.

¶ 18. The Mississippi Supreme Court stated that when a party requests specific findings of fact and conclusions of law in its post trial motions, it is error for the trial court to fail to make such findings. Patout v. Patout, 733 So.2d 770, 773 (¶ 17) (Miss.1999). After a thorough examination of the entire record and an even closer look at the defendants’ post-trial motion, we fail to find any request made for specific findings of fact and conclusions of law.

Section C.

VIII. DID THE TRIAL COURT ERR IN FINDING IN FAVOR OF THE PLAINTIFF WHEN THERE WAS SPOLIATION OF EVIDENCE?

¶ 19. It should first be stated that the issue of spoliation of evidence was not raised before the trial court nor was the issue raised in the Department’s notice of appeal. The Mississippi Supreme Court has repeatedly held that an issue not raised before the lower court is deemed waived and is procedurally barred. Davis v. State, 684 So.2d 643, 658 (Miss.1996); Cole v. State, 525 So.2d 365, 369 (Miss.1987), cert. denied, Cole v. Mississippi 488 U.S. 934, 109 S.Ct. 330, 102 L.Ed.2d 348 (1988). “Counsel may not sit idly by making no protest as objectionable evidence is admitted, and then raise the issue for the first time on appeal.” Davis, 684 So.2d at 658 Since this issue concerning spoliation of evidence was not properly and timely raised, the Department is precluded from raising the issue for the first time on appeal.

¶ 20. However, to be thorough, we continue. In Stahl v. Wal-Mart Stores, Inc., the court held that “in the absence of bad faith — i.e., evidence of culpability on the part of the spoliator — then there can be no adverse influence or presumption ... even when there is prejudice to the innocent party.” Stahl v. Wal-Mart Stores, Inc., 47 F.Supp.2d 783, 787 n. 3 (S.D.Miss.1998). The court has further held that “it is a general rule that the intentional spoliation or destruction of evidence relevant to a case raises a presumption, or, more properly, an inference, that this evidence would have been unfavorable to the case of the spoliator.” Tolbert v. State, 511 So.2d 1368, 1372-73 (Miss.1987) (quoting Washington v. State, 478 So.2d 1028, 1032-33 (Miss.1985)). “Such a presumption or inference arises, however, only when the spoliation or destruction was intentional and indicates fraud and a desire to suppress the truth, and it does not rise where the destruction was a matter of routine with no fraudulent intent.” Id.

¶ 21. The Department claims that the plaintiffs and their attorney failed to preserve critical evidence; they failed to retain the tire that they allege sustained a blowout when it struck the raised area of the pavement as they entered the roadway. The relevant facts in the case sub judice show, the date of the accident was December 3, 1993, with the complaint being filed on March 3, 1995, and through the development of this case until the trial in September 2001, the Department never requested the production of the tire. Nor was there any inquiry concerning the tire in any of the discovery propounded by the Department. When defense counsel first raised questions concerning the tire at trial, Bridget’s father explained what happened to the tire and it is clear that had the request for production been timely, the tire probably could have been located for the Department.

¶ 22. It is clear that there was no intent to destroy the tire or to deprive the Department of the opportunity to inspect it. With there being no evidence of culpability on the part of the plaintiffs, and even if the Department was given the presumption, the overwhelming evidence in this case was sufficient to rebut the presumption and fully supports the judgment of the trial court.

Section D.

I. DID THE TRIAL COURT ERR WHEN IT DETERMINED THAT THE DEFENDANT WAS NEGLIGENT?

¶ 23. In regards to these issues concerning negligence, both parties cite the Mississippi Supreme Court case Jones. v. Miss. Dep’t of Transp., 744 So.2d 256 (Miss.1999). However, it is the finding of this Court that this case fully supports the judgment of the trial court in assigning fault to the Department. In Jones, there was a one vehicle accident that occurred at a “T” intersection and there was no stop sign at the end of the road nor were there any traffic control signs warning oncoming traffic that it was approaching a “T” intersection. Jones, 744 So.2d at 258 (¶ 2). The driver failed to stop, crossed the intersection, and crashed into a ditch. Id. As in the case sub judice, Jones raised the issue of whether the placement of traffic control devices was a discretionary act entitling the Department to protection from suit under the Tort Claims Act. During an extensive analysis of the claim, the court provided the following:

Even prior to the enactment of § 11-46-9(l)(w), a governmental entity had a duty to warn of a dangerous condition of which it has notice. In Coplin v. Francis, 631 So.2d 752, 755 (Miss.1994), this Court held that even where a government employee’s actions are deemed to be discretionary, rather than ministerial, the question may remain as to whether the public was afforded adequate warnings of the dangerous condition.
Federal law also supports our conclusion. Applying a similarly worded exception to the FTCA, a federal district court has held: The discretionary function exemption is intended to protect public policy objectives. It would run counter to the discretionary function exemption to second-guess or micro-manage the kinds of steps appropriate to maximize safety in government facilities, even where the decisions are made below policy level. Within that broad discretion, reasonable steps of a type determined by management to minimize risks of personal injury are necessary. Failure to take any such steps where feasible is negligent and not within the discretionary function exemption, even though the particular nature of the appropriate steps is discretionary.

Id. at 263-64 (¶¶ 22-23) (citations omitted).

¶ 24. The evidence found in the record fully supported the trial court’s findings that a proximate cause of the accident and the plaintiffs’ injuries was the negligence of the Department in creating the dangerous condition and failing to protect or warn against the hazard. The facts in evidence that support this contention are as follows: (1) under Mississippi Code Annotated section 65-1-65 and section 65-1-67, the Department had duties to the public including: to maintain the highway, not to create a hazardous condition on the highway, and to protect and warn against any hazard on the highway; (2) the condition of the right edge of the highway and the shoulder presented a dangerous condition; (3) witnesses testified to the seriousness of the situation including the lack of striping on the road and the lack of warning signs or signals; (4) there is evidence that also supported the plaintiffs claim that the Department’s breach of its duties was the proximate cause of the accident; and (5) there was also testimony that Bridget was a careful and prudent driver and was driving straight ahead in the right-hand lane when her right front tire dropped off the highway.

¶ 25. Whether the plaintiff had any fault in bringing about the accident is discussed below.

SOUTHWICK, P.J., writing for the court as to section E.

Section E.

V. DID THE TRIAL COURT ERR WHEN IT FAILED TO FIND THE PLAINTIFF BRIDGET TROSCLAIR BAILES, NEGLIGENT?

VI. DID THE TRIAL COURT ERR BY FAILING TO APPORTION A PERCENTAGE OF FAULT TO THE PLAINTIFF?

¶ 26. When the Troselairs brought suit, they claimed that the Department was solely at fault. In reply, the Department alleged that Bridget, the driver, was solely at fault. At trial, the dispute was whether both were at fault.

¶ 27. Those who are negligent and proximately contribute to an injury should be allocated a percentage of fault. Miss.Code Ann. § 85-5-7 (Rev.1999). The comparative negligence principle includes allocation of fault to a plaintiff. Based on the evidence before us, the failure to allocate at least some of the fault to Bridget rises to the level of manifest error.

¶ 28. The record contains undisputed evidence of the following:

a. It was daytime and the weather was clear;
b. The plaintiffs realized that they had entered an[a] stretch of road being repaved;
c. A drop-off from the fresh pavement to the unpaved shoulder was obvious, though the degree of elevation change was not clear; and
d. The edge of the pavement was clearly observable.

¶ 29. The plaintiffs take these facts, add some contested ones, and argue a number of failures of the Department. This Court has already explained why it finds the record to support that a proximate cause of injury was the Department’s various failures. Even though the Department has been found to have failed in its responsibilities, in order for us to affirm we must also conclude that the plaintiff was without fault that was a proximate cause of the injury.

¶ 30. The obviousness of fresh pavement was admitted. The temporary center line markings were clear in the plaintiffs’ own photographic exhibits. Bridget admitted that she could clearly see the edge of the fresh black pavement against the unpaved shoulder. The pictures introduced into evidence confirm the admission. Nothing the Department did caused her to run off the road, but the Department’s failures may have caused her not to realize the full extent of the danger of doing so.

¶ 31. Roads that are undergoing repair are not required to be closed. Because of the importance of highways in modern life, the balance that has been struck is largely to leave roads open and make other adjustments such as slower speeds and occasional detours. The balance also requires that a driver upon entering a road she knows is undergoing repair to exercise vigilant caution. Graves v. Johnson, 179 Miss. 465, 176 So. 256, 259-60 (1937).

¶32. This duty was first recognized when the highway system was much different than today. Still, this enhanced care required of motorists who encounter highway construction has been noted many times since 1937. E.g., Reeves v. W.E. Blain and Son, Contractors, 276 So.2d 461, 463 (Miss.1973). Though Graves concerned a highway whose usable surface came to an end, the principle has been stated more generally “that when one is sufficiently warned that a public thoroughfare is under construction or undergoing repairs, he should exercise a vigilant caution and keep a constant lookout for dangers incident to the progress of the work.” Bush Const. Co., Inc. v. Blakeney, 350 So.2d 1370, 1373 (Miss.1977). Bush involved a situation much like that which faced the Trosclairs, though in Bush the presence of highway construction warning signs was admitted while here it was disputed. In Bush the “highway was being resurfaced by layers of asphalt and at the point complained of the surface had been substantially raised but dirt had not been pulled up to the level of the road causing a dangerous and hazardous drop-off to those using the road.” Id. at 1370-71. Whatever reasonably warns a driver of construction invokes the need for vigilance.

¶ 33. In Bush the contractor was found not to be negligent at all. In orn-ease some fault on the part of the Department has been upheld. That does not exonerate the driver. A motorist on a freshly paved highway on which additional work is obviously remaining, cannot be found faultless when she in good weather, on a straight stretch of road, and without other explanation runs off the new pavement onto the unpaved and lower shoulder. The plaintiff-driver admitted that she knew that there was a drop-off. Bridget argues that she did not know that the drop-off was especially severe. The Court has concluded that the absence of warnings of the severity of the difference in elevation could properly be found a proximate cause of the accident. Still, under the evidence presented, some drop-off was anticipatable to a reasonable, non-negligent driver. Part of the needed anticipation is to drive in a manner so as to avoid running off the road.

¶ 34. Bridget alleges that had center and side stripes been present, the accident would not have occurred. However, since the edge of the roadway was clearly visible, it does not matter that a painted line might have more colorfully noted that edge. As to markings on the road center, even though both plaintiffs testified that there was no center striping, the plaintiffs’ own photographs taken the day after the accident reveal intermittent splotches of white on the road center. Those are the proper temporary center line markings during repaving. Miss.Code Ann. § 65-1-67 (Rev.2001). Therefore, when Bridget argues that the absence of a temporary center stripe caused her more zealously to hug the outer edge of the pavement than she would have preferred, the factual predicate for her argument does not exist. The undisputed testimony establishes that Bridget was traveling at the speed limit for the area despite these concerns and was passing slower traffic in the construction area. If the striping was such as to cause doubts about maintaining her position on the roadway, then the obligation of care was to slow down.

¶ 35. The operator of a motor vehicle has a duty to keep the vehicle under proper control and to drive at a speed which is reasonable under the conditions that she faces. Upchurch ex rel. Upchurch v. Rotenberry, 761 So.2d 199, 205 (Miss.2000)(such an instruction was proper statement of law). Bridget did not meet the “vigilant caution” standard for drivers on roads under construction.

¶ 36. Therefore, even though this Court has found the Department to be negligent in the manner that it repaved this stretch of highway, Bridget also must be allocated some fault. Bridget responds to the issue by asserting that the failure to assign her any fault was correct in part because the policy limit for the Department was $50,000. Thus, to allocate her fault might have kept her and Susan from making a total recovery. Two matters are important in response. First, the comparative negligence scheme is not to be manipulated by lowering percentages of plaintiff fault or increasing total damages in order to allow plaintiffs and their attorney to share in an award of all damages. A plaintiff who is at fault is not supposed to be compensated for all her damages since she contributed to them. Secondly, the trial judge found total damages to the plaintiffs to be $63,500. It would appear that this failure to apportion fault did affect the total recovery. The total damages were not much more than the policy limit. Even after allocating some fault to the Department, a fair appraisal of the plaintiffs fault may have caused the total recovery to be less than the policy limit.

¶ 37. We reverse and remand so that fault may be allocated to both parties.

¶ 38. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT IS REVERSED AND REMANDED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPEL-LEES.

LEE AND IRVING, JJ., CONCUR IN TOTO.

SECTION C: ALL JUDGES CONCUR.

SECTION E: SOUTHWICK, P.J., WRITING FOR THE COURT JOINED BY McMILLIN, C.J., CHANDLER AND GRIFFIS, JJ.

SECTIONS A, B, AND D: SOUTHWICK, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY McMILLIN, C.J., CHANDLER AND GRIFFIS, JJ.

SECTION E: BRIDGES, J„ DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, P.J., THOMAS AND MYERS, JJ.

SOUTHWICK, P.J.,

dissenting as to sections A, B, and D.

¶ 39. Respectfully, I dissent to Sections A, B, and D of the Court’s opinion. Under a statutory exemption, a governmental entity is not liable in tort if a supposedly dangerous condition that otherwise would cause liability was obvious to a reasonably observant person. The trial judge implicitly found that the dangerousness of the drop-off from the new pavement was not obvious. I believe that was error. I also address a motion regarding the trial judge’s need to make findings of fact and conclusions of law.

1. Governmental Immunity

¶ 40. Tort claims against the Department and other governmental entities are controlled by statute. Miss.Code Ann. §§ 11 — 46—1 through 11-46-23 (Rev.2002). Among the provisions is a section containing a variety of exemptions from liability. Included are claims such as the following:

Arising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care.

Miss.Code Ann. § ll-46-9(l)(v) • (Rev. 2002).

¶ 41. The related but non-statutory “open and obvious” defense applicable to private parties is a component of comparative negligence. It is not a complete bar to recovery unless the plaintiffs failure to notice an obvious defect is the sole proximate cause of injury. Tharp v. Bunge Corp., 641 So.2d 20, 25 (Miss.1994). The approach of the governmental immunity statutes is rather different than usual negligence rules. The legislature declared that sovereign immunity would bar liability in tort except as waived in the Act. Miss. Code Ann. §§ 11-46-3 & 11-46-5 (Rev. 2002). The statutory defense that there is no obligation to warn of an obviously dangerous condition is an absolute bar to recovery based on a failure to warn. See Jim Fraiser, “A Review of the Substantive Provisions of the Mississippi Governmental Immunity Act,” 68 Miss. L.J. 703, 829-830 (1999).

¶ 42. The exemption is in two parts. First, it provides that if the dangerous condition on government property was not caused by a negligent or wrongful act of an employee, then there is no liability. Whether it is negligence to leave an overlay of pavement five and a half inches above the level of the adjacent unpaved shoulder is one question. Another is that even if it was not negligence to have such a drop-off during the road work process, it might be negligence not to have warning signs notifying of the change in levels. The second principal part of the exemption concerns dangerous conditions “of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against....” Miss.Code Ann. § 11-46-9(l)(v) (Rev.2002). Since the first part of the exemption provides that there is no liability if it was not a governmental employee who created the hazard, the issue of notice and warnings may apply only to hazards that were created by such an employee. Regardless, our allegedly dangerous condition was created by a governmental employee.

¶ 43. I find no potential negligence here other than the absence of warning signs. Therefore, if the signs would merely have warned of the obvious, there is no liability. As the statute states, the issue is not whether the dangerous condition was obvious to this particular plaintiff, but instead the issue is whether it was obvious to someone exercising “due care.” Miss. Code Ann. § ll-46-9(l)(v) (Rev.2002). The evidence is uncontradicted that the highway was obviously incomplete. Witnesses, including driver Bridget Trosclair Bailes, testified to fresh, dark asphalt at the site. There was a temporary set of intermittent white splotches near the approximate road center, but no stripes on the sides of the road. Without doubt, the highway was undergoing construction or repair.

¶ 44. For the plaintiffs to recover, there must have been a dangerous condition that was not obvious and for which some warning was needed. If warnings of a non-obvious danger were needed, some liability on the part of the Department may exist.

¶ 45. The trial judge made no findings, a point that complicates our task. Such findings would have aided our review as opposed to being superfluous as the majority holds. If he found that the danger of running off the road was not obvious at all, then I would conclude that was error. If he found that Bailes had maintained vigilant caution regarding her driving, I would find that to be error. However, if on remand the trial the court identified what it was that the Department committed or omitted that contributed to the accident, then I would evaluate that for support in the evidence.

2. Findings

¶46. A procedural rule requires that after a bench trial, findings of fact and conclusions of law are to be entered if requested:

In all actions tried upon the facts without a jury the court may, and shall upon the request of any party to the suit ..., find the facts specially and state separately its conclusions of law thereon and judgment shall be entered accordingly.

M.R.C.P. 52(a). The principal dispute on the point is whether the Department made an adequate request. Instead of making a distinct motion, the Department alleged as an issue in its motion for new trial that it was error not to make findings of fact and conclusions of law. The motion was denied without comment on the alleged error regarding findings.

¶ 47. The order in which the decision of the trial court was announced was two pages long. Almost the entire first page discussed the $50,000 limit on the Department’s insurance policy. Then without stating why the Department was liable, the court wrote that after “due consideration of the evidence, the Court has determined” that one plaintiff suffered $60,000 in damages and the other $3,750. The remainder of the order reduces the total damages proportionately to the policy limit. Which among the theories of causation and liability led to the result is unstated.

¶ 48. Two issues arise from the manner in which the Department raised the issue. First, this was not a “request” to make findings as stated in Rule 52(a), but an allegation of error for not having made findings. Even after the judge read this motion closely and considered the import of the point, there may have been doubt whether this should be considered a request. Since we are remanding, it is not necessary to reach a definite conclusion as to the sufficiency of this form of request. Still, trial judges should be willing to make findings even if arguably the request has not been properly made, to assist both the parties and an appellate court in understanding the judgment.

¶ 49. The other problem is that Rule 52(a) was not mentioned. I find no credible basis on which to make the failure to cite the rule as controlling. No Mississippi precedent that I have found has required that the rule be specifically mentioned. This rule is neither obscure nor complicated. Even without citation to the rule, an explicit request for findings after entry of the judgment in a bench trial sufficiently alerts the trial judge that Rule 52 is being invoked.

¶ 50. This is the mirror image of the position the Court has already taken, that the form in which the trial judge makes the findings is not central to compliance with Rule 52(a).

The purpose of the Rule is to obtain a detailed explanation of a bench trial result when requested. It does not matter that the court dictated one in open court for the court reporter to transcribe, or dictated one while in chambers for a secretary to type. It is the content that matters, not the place at which the judge is sitting when expressing his reasoning.

Davis v. Dooley, 829 So.2d 712, 715 (Miss.Ct.App.2002). Thus, the objection to the findings that they had to be contained in a writing separate from the transcript was rejected. Id. at 715-16.

¶ 51. We should reject that the request has to be in a separate writing from the motion for new trial. Substance, not form unless it provides demonstrable value, controls here.

¶ 52. Considering that the findings issue was buried in a motion containing several allegations of error, the trial judge’s failure to respond was understandable. Since we are remanding for further proceedings, I will simply note that any future request by either party should more closely conform to the requirements of Rule 52 in order to avoid any ambiguity.

McMILLIN, C.J., CHANDLER AND GRIFFIS, JJ., JOIN THIS SEPARATE WRITTEN OPINION.

BRIDGES, J.,

dissenting as to section E.

¶ 53. With respect to my colleagues in the majority, I am of the opinion that they reached a wrong decision regarding the reversal and remand of the judgment of the Harrison County Circuit Court. I am concerned with the reasoning and case law presented in the majority’s opinion, and believing that the record provides ample evidence to affirm the trial court’s judgment, I dissent.

¶ 54. My concern is in the discussion of issues I, V, and VI, which involve whether the trial court erred when it determined that the defendant was negligent, whether the trial court erred when it failed to find the plaintiff, Bridget Trosclair, and whether the trial court erred by failing to apportion a percentage of fault to the plaintiff. While I agree with the majority that fault should be allocated to the Department, I strongly disagree that fault should be allocated to Bridget as well. I feel that the allocation of fault is well within the discretion of the fact finder and in this case he chose not to assign fault with the driver.

¶ 55. It may appear that Bridget may have been negligent in her driving but the facts in the record indicate that she was going the speed limit of 55 m.p.h. and driving in a careful and prudent manner. The Department’s appellate brief claims that the investigating trooper documented that Bridget’s inattention while driving contributed to this accident. However at trial, the trooper testified that, when he arrived at the scene twenty minutes after being notified of the accident, he first went down to check on the occupants of the vehicle and then tried to locate where the vehicle ran off the road. After that he started to fill out his report and in the report where it stated contributing circumstances, he filled in driver inattention. The trooper also testified that since the accident report was a form, he had to mark something. This writer does not see how the trooper could have observed her driving when he arrived at the scene twenty minutes after the accident happened. Taking the above stated facts as a whole, we find that the trial judge obviously considered this matter in making his decision.

¶ 56. Under the facts in the record, I feel apportionment for the alleged liability of Bridget Trosclair Bailes would be inappropriate. It is also evident in the record that the trial court judgment took into consideration the statutory liability limits set out in Mississippi Code Annotated section ll-46-15(l)(a) in making the award. This section states:

(1) In any claim or suit for damages against a governmental entity or its employee brought under the provisions of this chapter, the liability shall not exceed the following for all claims arising out of a single occurrence for all damages permitted under this chapter:
(a) For claims or causes of action arising from acts or omissions occurring on or after July 1, 1993, but before July, 1, 1997, the sum of Fifty Thousand Dollars ($50,000)....

¶ 57. Even if Bridget may have been negligent, I feel the trial court judge certainly considered this in making his decision.

¶ 58. Therefore, I find that these issues are without merit and the trial court’s decision should be affirmed as to all issues. Therefore, I respectfully dissent.

KING, P.J., THOMAS AND MYERS, JJ„ JOIN THIS SEPARATE WRITTEN OPINION.

      . Greyhound Lines, Inc. v. Sutton, 753 So.2d 1105, 1120, 1124-25, 97-CA-00634-COA (¶¶ 61-66) (Miss.Ct.App. Dec. 7, 1999) (Southwick, P.J., concurring; opinions withdrawn upon granting of writ of certiorari); aff'd in part, rev’d in part, 765 So.2d 1269 (Miss.2000).

      . The author of the article referred to an unpublished and thus non-precedential opinion: Id., citing Barfield v. Calhoun City, 704 So.2d 468 (table), 95-CA-01312-COA (Miss. Ct.App., Nov. 18, 1997). Since then, this Court again raised the question of the applicability of Tharp to a city's immunity under § 11 — 46—9(l)(v), but said that the issue need not be resolved "since the trial court made a reasonable fact finding that this condition was not an obvious one.” City of Newton v. Lofton, 840 So.2d 833, 837 (Miss.Ct.App.2003).


source: Caselaw Access Project

author: McMILLIN, C.J.,

license: Public Domain

text:
    Rosie SMITH, Appellant, v. GRAND CASINO-BILOXI and The Insurance Company of the State of Pennsylvania, Appellees.
    No. 2002-WC-01017-COA.
    Court of Appeals of Mississippi.
    July 29, 2003.

      Robert E. O’Dell, Pascagoula, attorney for appellant.
    Margaret E. Murdock, Gulfport, attorney for appellee.
    Before McMILLIN, C.J., LEE and IRVING, JJ.
   McMILLIN, C.J.,

for the court.

¶ 1. Rosie Smith has appealed from a decision of the Circuit Court of Jackson County affirming the decision of the Mississippi Workers’ Compensation Commission to deny her claim for permanent partial disability benefits arising out of a work-related injury at her employer, Grand Casino-Biloxi. Smith sought permanent partial disability benefits on the assertion that the residual effects of her injury had resulted in a permanent loss of wage-earning capacity. The Commission concluded that Smith had failed to carry her burden to demonstrate a permanent occupational disability or permanent loss of wage-earning capacity arising from a work-related injury. The Commission awarded temporary total disability benefits during the period of her recovery but disallowed any claim for permanent disability benefits. Smith appealed that ruling to the circuit court without success and now brings her appeal to this Court. Under the limited scope of review afforded this Court, we can find no reversible error in the circuit court’s ruling and we, therefore, affirm.

I.

Facts

2. Smith worked for Grand Casino as a lobby attendant. In August 1997, while working with a carpet cleaning machine, she bent over to wind up the cord and, as she straightened up, felt pain in her right hip and leg. When the pain persisted, Smith consulted her family physician, Dr. Dunk Ellis. Dr. Ellis ultimately admitted Smith to the hospital after she reported what Dr. Ellis recorded as “bizarre complaints with some mental confusion, shaking of her right arm with numbness, tingling ... slurring of her speech and confusion at times....” She began to exhibit “freezing spells” where she would appear to lose muscular control for a period of time.

¶ 3. In the course of attempts to diagnose and treat Smith’s multiple complaints, she was seen by a number of physicians besides Dr. Ellis. Dr. Terry Millette diagnosed Smith with cervical myofascial pain, suspected thoracic outlet syndrome, muscular pain of undetermined etiology, and fatigue symptomatology. However, in response to a written inquiry as to whether Smith’s work-related activities triggered, precipitated or contributed to any of the diagnosed conditions, Dr. Millette’s response was that he was not sure. On the chance that there might be a psychological component to Smith’s complaints, she was examined by Dr. William W. Smith, a psychiatrist. He reported no identifiable psychiatric impairment at the time of his examination.

¶ 4. Dr. John Wyatt, to whom Smith was referred for purposes of undergoing an independent medical examination on December 16,1997, reported that at that time he conducted “an unremarkable physical exam.” However, because he wanted to review certain other medical records associated with her earlier hospitalization, he continued her in a temporarily disabled status. After a further office visit and after having the benefit of a functional capacity evaluation, Dr. Wyatt concluded that he could see no reason not to return Smith to work with restrictions that were commensurate with her duties as a housekeeper at Grand Casino. This occurred on August 6, 1998, and was the date Dr. Wyatt considered Smith to have reached maximum medical improvement.

¶ 5. Dr. John McCloskey, a neurosurgeon, saw Smith in December 1997 at the request of Dr. Ellis. In his deposition, Dr. McCloskey was asked whether he had “an opinion as to whether that injury that she gave you in the history is related to the conditions that she had.” He responded, “Based on the history that I have, there’s no doubt that the problems that I saw her for, and she complained of, were related to her work injury of August 27th, 1997.” Nevertheless, Dr. McCloskey went on to testify that, from a neurological standpoint, he made no objective findings and that, from his standpoint, “her problems were of an unknown etiology.” He additionally said, in regard to his consultation, “She claimed the injury that precipitated all of this, but what she injured, I didn’t know. I couldn’t put this all together.”

¶ 6. Smith actually returned to work at Grand Casino for a brief time but claimed that she was unable to perform the duties assigned to her. After she persisted in her complaints, Smith was informed by friends that she might receive some benefit from seeing Dr. Kerry Bush, a chiropractor. Smith testified to discussing this with Dr. Ellis and that he told her it was her choice. Dr. Bush first saw Smith on January 6, 1999. Dr. Bush’s treatment records were introduced into evidence. They show that he diagnosed her with cervical neck pain, low back pain, cervical subluxation C-5, cervical subluxation C-6, lumbar subluxation L-4, lumbar subluxation L-5, and muscle spasms. Without any explanation for his opinion, Dr. Bush’s record indicates that he was of the view that Smith’s condition was solely a result of the work accident that occurred at Grand Casino on August 26, 1997. After a series of treatments, Dr. Bush released Smith on March 15, 1999, as having reached maximum medical improvement on that date. He offered his opinion that Smith had sustained a seven percent partial impairment to the body as a whole as the result of “a permanent partial spinal impairment.”

¶ 7. Smith returned to work at Grand Casino in June 1999, but contended that she could not properly perform her duties because of continuing pain, and she finally left that employment in July 1999.

II.

Discussion

¶ 8. The burden lies with the claimant to affirmatively show that she has suffered a loss of wage-earning capacity as the result of a work-related injury. Davis v. Scotch Plywood Co. of Mississippi 505 So.2d 1192, 1196 (Miss.1987). The Workers’ Compensation Commission acts as finder of fact as to such matters and the findings of the Commission are entitled to substantial deference when subjected to appeal to the judiciary. Natchez Equip. Co., Inc. v. Gibbs, 623 So.2d 270, 273 (Miss.1993); Pickering v. Cooper Tire and Rubber Co., 792 So.2d 298, 300(¶ 7) (Miss.Ct.App.2001). The reviewing court does not reweigh the evidence, but rather is obligated to affirm the Commission on issues related to fact-finding if there is substantial evidence in the record consistent with the Commission’s determinations. Natchez Equip. Co., Inc., 628 So.2d at 273. In this case, there is no dispute that Smith suffered some injury to her back while on duty with her employer, Grand Casino. Additionally, there is no real issue as to whether Smith has suffered from medical complaints that have required substantial attention from treating physicians. The pivotal issue on which the viability of Smith’s claim for compensation turns is, rather, whether she was able to provide convincing evidence showing that her medical complaints were caused by the incident at work.

¶ 9. None of the treating physicians who provided evidence at the hearing on this claim were willing to draw a connection between Smith’s initial injury and the ensuing medical symptoms which she claims render her unable to continue her employment; the only exception being Dr. Bush, who provided no explanation or basis for his view other than Smith’s own medical history related to him. The Commission, in its role as fact-finder, clearly found more credible the evidence offered by Smith’s other treating physicians tending to show that, without regard to the legitimacy or the severity of Smith’s long-standing symptoms that hindered her ability to work, there was no objective medical evidence connecting those continuing complaints to the incident at work that occurred in August 1997. Because there is substantial evidence in the record supporting that view, the obligation of a judicial body called upon to review those findings is to affirm. Toldson v. Andersorn-Tully Co., 724 So.2d 399, 402-03, (¶¶ 15-16) (Miss.Ct.App.1998). The circuit court, providing the initial judicial review, affirmed the Commission for that reason. Finding no error in that court’s decision, we affirm the circuit court.

¶ 10. Although Smith purports to raise five separate issues in this appeal, including such matters as whether the costs of certain medical treatments were covered expenses, all the issues are resolved against her by our finding that the Commission did not err when it concluded that Smith failed to meet her burden to show that her on-going medical complaints were attributable to a work-related accident.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING and SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER and GRIFFIS, JJ., concur.


author: THOMAS, J., CHANDLER, J.,

text:
    MURRAY ENVELOPE CORPORATION, Appellant, v. ATLAS ENVELOPE CORPORATION and Hampton Lamar Hurt, Appellees.
    No. 2002-CA-00168-COA.
    Court of Appeals of Mississippi.
    July 29, 2003.

      Alexander Ignatiev, John Michael Herke, Jackson, and Lawrence Cary Gunn, Hattiesburg, for appellant.
    Kenneth Bridges, Louisville, and Roy Gregg Rogers, attorneys for appellee.
    Before MCMILLIN, C.J., THOMAS, LEE and IRVING, JJ.
   THOMAS, J.,

for the court.

¶ 1. Atlas Corporation sued Murray Envelope Corporation for breach of contract and a jury awarded Atlas $210,000. Aggrieved Murray asserts the following:

I. THE PLAINTIFF DID NOT PRESENT ANY EVIDENCE THAT THE CONTRACT IN ISSUE WAS RENEGOTIATED TO CONTINUE BEYOND THE OCTOBER 1986 DATE OF TERMINATION SPECIFIED IN THE CONTRACT.
II. THE PLAINTIFF DID NOT MAKE OUT A CLAIM FOR LOST PROFITS SIMPLY BY SHOWING THAT ATLAS INCOME DECREASED OVER A PERIOD OF THREE YEARS.
III. THE VERDICT OF THE JURY WAS SO CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE AND UNRESPONSIVE TO THE INSTRUCTIONS GIVEN BY THE COURT AS TO JUSTIFY A NEW TRIAL.

FACTS

¶ 2. In 1981, Lamar Hurt and Atlas Corporation, a corporation owned solely by Hurt, entered into a verbal contract with Murray Envelope Corporation whereby Atlas would fold envelopes produced by Murray using Hurt’s patent/design process rights through a licensing agreement. Hurt moved his family and his company to Hattiesburg as a consequence of this contract, where his company began to fold envelopes. In 1983 this contract was finally put to writing which took the form of two separate documents. One was a contract to fold envelopes and the other a licensing contract allowing Murray the right to produce envelopes using Hurt’s patented design. The licensing agreement provided Murray with the right to cancel its license at will. The folding contract stated Atlas would fold all patented report pocket envelopes that Murray sold under the licensing agreement. The folding contract provided for a three year commitment during which Atlas would fold not only the report pocket envelopes, which would fall under Hurt’s patent, but also “jumbo flat” and sycom file folders. This folding contract provided manufacturing quotas, guaranteed yearly payments and prices of individual items for the three years of mandatory payment under the contract.

¶ 3. In the first appeal of this case, this Court reversed the trial judge’s grant of summary judgment in Murray’s favor finding that Atlas should have been able to amend its pleadings under M.R.C.P 15. Atlas Envelope Corp. v. Murray Envelope Corp., 687 So.2d 795 (Miss.Ct.App.1996). This Court determined that Murray’s initial summary judgment motion was a motion for judgment on the pleadings which allows a respondent an opportunity to amend the pleadings to cure any defects. Atlas was allowed to amend the pleadings and provide evidence regarding the formation of a new contract which was necessary to find that Murray was in breach of contract.

¶ 4. Atlas amended its complaint to continue on to trial. Atlas never proffered anything to prove that the folding contract was renegotiated to extend past the three year period stated in the 1983 contract. The trial court refused to grant a directed verdict and the jury awarded Atlas $210,000. Atlas’ motion for a judgment notwithstanding the verdict was denied.

ANALYSIS

¶ 5. The ultimate issue in the case at bar is whether Murray had a duty to Atlas under a renegotiated contract. In order to have an obligation under a contract there must first be a contract. It is paramount to determine whether a contract existed between Murray and Atlas regarding the subject matter in the 1983 contract which would make any agreement from the end of the 1983 contract a renegotiated contract.

¶ 6. On appeal, “the standard of review for denial of a judgment not withstanding the verdict (J.N.O.V.) and a directed verdict are identical.” American Fire Protection, Inc. v. Lewis, 653 So.2d 1387, 1390 (Miss.1995). See Sperry-New Holland v. Prestage, 617 So.2d 248, 252 (Miss.1993). Whether to grant a directed verdict is a decision of law. Fox v. Smith, 594 So.2d 596, 603 (Miss.1992). M.R.C.P. 50(a) provides:

Motion for Directed Verdict: When Made; Effect. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted without having reserved the right to do so and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specifíc grounds thereof. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.

(emphasis added).

¶ 7. In McKinzie v. Coon, 656 So.2d 134, 137 (Miss.1995), the Supreme Court stated M.R.C.P. 50 requires the trial court to take a case from a jury and grant a directed verdict if any verdict other than the one directed would be erroneous as a matter of law. The comment to the Rule instructs the trial court to look “solely to the testimony on behalf of the opposing party; if such testimony, along with all reasonable inferences which can be drawn therefrom, could support a verdict for that party, the case should not be taken from the jury.” Kussman v. V. & G Welding Supply, Inc., 585 So.2d 700, 702 (Miss.1991). In considering a motion for a directed verdict, this Court must consider whether the “evidence in opposition to the motion was of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment could differ as to the verdict.” Collins v. Ringwald, 502 So.2d 677, 678 (Miss.1987). If the evidence is so overwhelmingly in favor of the appellant that reasonable persons could not have reached a different verdict, this Court must reverse. Harrison v. McMillan, 828 So.2d 756, 764 (¶ 24) (Miss.2002); Strong v. Nicholson, 580 So.2d 1288, 1292 (Miss.1991).

¶ 8. This is one of those times the trial court should have taken the case from the jury. At no point in the trial was even a scintilla of evidence presented to support the existence of a renegotiated contract. At the end of the three year 1983 contract, by Atlas’ own omissions, annual price negotiations were held which were inconsistent with the 1983 contract. Mr. Hurt testified that after the three years provided in the contract Atlas and Murray continued to have business dealings and they negotiated price each year and nothing else. There was no mention of mandatory time; it was a series of at-will agreements. If any essential terms are left unresolved, then no contract exists. Buscking v. Griffin, 465 So.2d 1037, 1040 (Miss.1985). A valid contract must include the following essential elements: “(1) two or more contracting parties, (2) consideration, (3) an agreement that is sufficiently definite, (4) parties with legal capacity to make a contract, (5) mutual assent, and (6) no legal prohibition precluding contract formation.” Lanier v. State, 635 So.2d 813, 826 (Miss.1994).

¶ 9. While business continued, it was continued under no contract. Atlas was provided the opportunity under law to amend the pleadings and present evidence to show a contract existed. It failed to do so. We are compelled to reverse and render. Review of the issues on an individual basis is not required.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY IS REVERSED AND RENDERED. COSTS ARE TAXED AGAINST THE APPELLEE.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, IRVING, MYERS, AND GRIFFIS, JJ., CONCUR. CHANDLER, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

CHANDLER, J.,

Dissenting:

¶ 11. With respect, I disagree with the majority. The majority resolves every issue presented in this appeal by finding that there was no contract in existence beyond the initial three-year period of guaranteed minimum amounts of gross folding orders. A thorough review of the 1983 contract reveals that the three-year period referred only to the guaranteed mínimums, not to the term of the contract itself. In fact, the contract provided no stated term and no provisions for automatic termination, only a limit on the amount of time that Murray would guarantee minimums. The provisions for termination are clearly spelled out and give each party the right to terminate the contract under certain conditions. Neither party did so during the period of time in question in these proceedings. During that period, Atlas was still performing its duties under the contract and Murray was still paying for services rendered by Atlas under the contract. The contract continued.

¶ 12. Having found that there was indeed a contract, I conclude that the jury, after hearing the evidence, was well within its rights in finding that the terms of the contract were breached and that damages resulted. The Mississippi Supreme Court has held on numerous occasions that:

The standard of review for jury verdicts in this state is well established. Once the jury has returned a verdict in a civil case, we are not at liberty to direct that judgment be entered contrary to that verdict short of a conclusion on our part that, given the evidence as a whole, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could have found as the jury found.

Starcher v. Byrne, 687 So.2d 737, 739 (Miss.1997).


author: CHANDLER, J.,

text:
    Prentiss CORK, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00481-COA.
    Court of Appeals of Mississippi.
    July 29, 2003.

      Thomas A. Coleman, for appellant.

      Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before SOUTHWICK, P.J., BRIDGES and CHANDLER, JJ.
   CHANDLER, J.,

for the court.

¶ 1. After a trial in the Circuit Court of Choctaw County, Prentiss Cork was found guilty of burglary of a dwelling. Cork was sentenced to a term of ten years in the custody of the Mississippi Department of Corrections, with two years suspended, five years of supervised probation, and eight years to serve, and to pay a fine of five hundred dollars, and all court costs, fees, and assessments within eighteen months of the date of judgment. Cork appeals, arguing that the trial court erroneously denied Cork’s motion to suppress statements Cork made to the authorities, and that the trial court erroneously refused to grant a jury instruction charging the jury that it must believe Cork’s statements to the authorities were made freely and voluntarily before considering them as evidence of Cork’s guilt.

FACTS

¶ 2. On the afternoon of October 16, 2001, Robert F. Bright returned to his house in Mathison, Mississippi. The house was the residence of Bright and his family. Bright began “tinkering on the phone” in the front part of the house. Bright went back to the master bedroom to get a wrench, and noticed that his gun cabinet had been broken open. The gun cabinet’s glass had been broken and a drawer pulled out. Bright noticed that his Ruger Black-hawk .44 magnum pistol was missing from the top of a chest of drawers. Bright called the police, and upon their arrival Bright discovered that a cap and ball pistol and a sack of dollar coins had been taken from the gun cabinet, and that a metal box inside the bedroom closet had been broken open. Bright discerned that the burglar had entered through the bedroom window by removing an air conditioner from the window. No one had been home during the burglary.

¶ 3. On December 14, 2001, Sheriffs Deputy J.D. “Bud” Rhodes executed an affidavit charging Cork with the Bright burglary. The next day, Cork was arrested and transported to jail. On the morning of December 17th, Deputy Rhodes met with Cork in the office of Sheriff Doug McHan. Cork and Rhodes were the only persons present. Cork signed a waiver of rights form. Then, Cork executed a handwritten statement relating to the Bright burglary, which asserted: “I took the A.C. out the window riche in and took the pisóle of the dresser.” Deputy Rhodes executed the following statement:

Prentiss Cork stated that he was alone when he stole a .44 mag. Ruger revolver from house identified as Robert F. Bright on Reed Road in Mathiston. He states that he parked on Reed Road just south of this residence in a blue car. He walked to house and looked in window and saw the revolver on a dresser just inside window. He removed the air conditioner from window and reached in and retrieved revolver from dresser and left. He stated that he did not take anything else and did not go into house other than just reaching in after removing air conditioner. He also stated that Keisha Stephenson was in school at this time and not present during this incident.

¶ 4. A grand jury indicted Cork for burglary of a dwelling and the ease proceeded to trial. During the testimony of Deputy Rhodes, the State sought to introduce Cork’s handwritten statement and Deputy Rhodes’ statement. Cork objected on the ground that his confession was not freely and voluntarily given. The trial court held a suppression hearing out of the presence of the jury. At the conclusion of the hearing, the trial court admitted both written statements into evidence. The jury found Cork guilty, and the trial court denied Cork’s motions for a JNOV and for a new trial.

LAW AND ANALYSIS

I. DID THE TRIAL COURT ERR WHEN IT DENIED CORK’S MOTION TO SUPPRESS HIS STATEMENTS MADE TO CHOCTAW COUNTY DEPUTY SHERIFF J.D. (BUD) RHODES ON THE MORNING OF DECEMBER 17, 2001?

¶ 5. Cork argues that the State failed to prove that his confession was voluntary, and, therefore, the trial court should have suppressed the confession. “The applicable standard for determining whether a confession is voluntary is whether, taking into consideration the totality of the circumstances, the statement is the product of the accused’s free and rational choice.” Porter v. State, 616 So.2d 899, 908 (Miss.1998). The trial court’s determination of admissibility of a confession is a finding of fact which will not be disturbed unless the trial court applied an incorrect legal standard, committed manifest error, or the decision was contrary to the overwhelming weight of the evidence. Wright v. State, 730 So.2d 1106, 1108 (¶ 11) (Miss.1999). Where the trial court makes such findings of fact on conflicting evidence, this Court must generally affirm. Stokes v. State, 548 So.2d 118, 122 (Miss.1989).

¶ 6. The case of Agee v. State prescribes the procedure the trial court must follow to determine whether a confession was coerced and involuntary. Kelly v. State, 735 So.2d 1071, 1077 (¶ 13) (Miss.Ct.App.1999) (citing Agee v. State, 185 So.2d 671, 673 (Miss.1966)). When the defendant objects to the introduction of a confession, the defendant is entitled to a hearing in absence of the jury to determine its admissibility. Id. The State has the burden of proving the voluntariness of a confession beyond a reasonable doubt. Jones v. State, 841 So.2d 115, 130 (¶ 38) (Miss.2003). The State makes a prima facie case of voluntariness when an officer, or other person having knowledge of the facts, testifies that the confession was voluntarily made without any threats, coercion, or offer of reward. Kelly, 735 So.2d at 1077 (¶ 13) (citing Agee, 185 So.2d at 673). Then, the defendant may attack the State’s prima facie case by offering testimony that violence, threats of violence, or offers of reward induced the confession. Id. at (¶ 14). This creates a rebuttable presumption that the confession was involuntary. Id. To rebut the presumption, the State must offer all the officers who were present when the defendant was questioned and when the confession was signed, or give an adequate reason for the absence of any such witness. Id. However, in rebutting the presumption, the State is not required to recall officers to reiterate their testimony from the State’s prima facie case. Id. at (¶ 15).

¶ 7. At Cork’s suppression hearing, the State made a prima facie case of volun-tariness by offering the testimony of Deputy Rhodes. Rhodes stated that at his private meeting with Cork, he read the waiver of rights form to Cork and advised Cork to read it. He thought Cork had understood the waiver form before signing it. Rhodes stated that he asked Cork to tell him the truth about the crime. He said that he did not threaten Cork in any way, or offer Cork any reward in exchange for the statement. Rhodes maintained that he did not tell Cork anything about the crime prior to hearing Cork’s story.

¶8. Cork testified that his confession was coerced by certain representations by Rhodes and Deputy Tommy Curtis. Cork said that Deputy Curtis told him upon his arrival at the jail that he could “get 25 years without a hearing,” and that if Cork did not confess, “it wouldn’t even be a hearing, they could throw me in jail and wouldn’t nothing else be said about it.” Cork said that Curtis said he could give Cork whatever sentence he wanted, because the judge would “look at [Curtis] more than he would look at [Cork] because he is the police officer.” On rebuttal, Deputy Curtis stated that he never spoke to Cork.

¶ 9. Cork further testified that he told Rhodes that he did not understand the waiver of rights form and did not want to sign it, but Rhodes told him that he had to sign it. Cork said that, before he gave the statement, he asked Rhodes about the burglary and Rhodes told him the culprit gained access by removing an air conditioner from a window. Cork said that he knew nothing about the burglary before Rhodes revealed that information. Cork said that Deputy Rhodes told him that they could offer him no help if he refused to state that he went into the house and took the pistol.

¶ 10. Cork’s testimony created a rebut-table presumption that his confession was coerced. Kelly, 735 So.2d at 1077 (¶ 14). The trial court held that the State rebutted the presumption. The court found that Cork had been advised of his rights and had understood that he waived the rights. The court found that Cork’s testimony about Deputy Curtis’ statement was unconvincing, and that it had been rebutted by Curtis’ testimony that he never made the statement. The court held that Cork’s confession was freely and voluntarily given.

¶ 11. On appeal, Cork argues that the State never rebutted the presumption of coercion because Deputy Rhodes never specifically denied (1) that he told Cork that if he did not make a statement that he went in the house and took the pistol there was nothing he could do for Cork; and (2) that Cork told him that he did not want to sign the waiver of rights form, but Rhodes said that he had to. Cork argues that because Rhodes did not specifically deny these statements, Cork’s version of events must be taken as true, and therefore, the confession was involuntary and inadmissible.

¶ 12. Cork’s argument is without merit. On rebuttal, the State need not recall witnesses to reiterate their testimony from the prima facie case. Kelly, 735 So.2d at 1077 (¶ 15). Along with the defendant’s testimony, the State’s witnesses’ general denials of wrongdoing can provide a sufficient evidentiary foundation on which the trial court may rule. Abram v. State, 606 So.2d 1015, 1030 (Miss.1992). In the case sub judice, Cork’s testimony was rebutted by Deputy Rhodes’ testimony from the State’s prima facie case. Rhodes testified that he read the waiver of rights form to Cork before he signed it, that in his opinion Cork understood his rights, that he did not threaten Cork at any time, and that he did not offer Cork any reward “in any way” to elicit the statement. These general denials of wrongdoing effectively rebutted Cork’s testimony that Rhodes threatened to withhold assistance and forced Cork to sign the waiver of rights. The trial court’s determination that Cork’s confession was voluntary was not manifest error.

II. DID THE TRIAL COURT ERR WHEN IT REFUSED TO GRANT JURY INSTRUCTION D-l?

¶ 13. Once the trial court admitted Cork’s statements to Deputy Rhodes, Cork and the State offered testimony about the voluntariness of Cork’s confession that was similar to that offered at the suppression hearing. Cork requested a single jury instruction:

The Court instructs the jury that before you may consider any statement which the defendant, Prentiss Cork, made to any law enforcement officer, including Choctaw County, Mississippi, Deputy Sheriff J.D. Rhodes, as evidence of the defendant’s guilt of the crime for which he is being tried today, you must first believe beyond a reasonable doubt that the defendant made that statement freely and voluntarily. The State of Mississippi has the burden of proving beyond a reasonable doubt that the defendant freely and voluntarily gave his statement.

The trial court denied the instruction, stating that admissibility of the confession is a question of law that had been resolved by the court’s earlier ruling that the confession was voluntary.

¶ 14. The trial court’s determination of voluntariness controls the admission of a confession into evidence. Hicks v. State, 812 So.2d 179, 191 (¶ 32) (Miss.2002). Once a confession is admitted, “the jury may consider it in the light of the evidence by which it was obtained and give it such weight and credibility as they think it entitled.” Anderson v. State, 241 So.2d 677, 678 (Miss.1970) (citing Brooks v. State, 178 Miss. 576, 582, 173 So. 409, 411 (1937)). Cork contends that, because his proffered instruction was not given, the jury was without guidance in determining the evidentiary weight of his confession.

¶ 15. Cork argues that the case of Hester v. State, 602 So.2d 869, 872 (Miss.1992) entitled him to the instruction. Hester held that “where a defendant’s proffered instruction has an evidentiary basis, properly states the law, and is the only instruction presenting his theory of the case, refusal to grant it constitutes reversible error.” Id. Cork claims the court’s refusal to grant the instruction met this standard for reversible error. Cork argues the instruction had an evidentiary basis in that Cork and the State presented alternate arguments regarding voluntariness of the statement. Cork argues that the instruction properly stated the law. Finally, Cork argues that because the State’s only evidence of Cork’s guilt was the contested confession, the instruction was the only one presenting his theory of the case.

¶ 16. Cork’s argument is without merit. Even if a defendant is entitled to a jury instruction under Hester, “the entitlement is limited in that the court may refuse an instruction that is ... covered fairly elsewhere in the instructions.... ” Heidel v. State, 587 So.2d 835, 842 (Miss.1991). In Simon v. State, 688 So.2d 791, 809-10 (Miss.1997), the supreme court held that the trial court properly refused an instruction informing the jury that it was not bound to consider the defendant’s confession as true based on its admission into evidence. The court found that an instruction specific to the confession was unnecessary because the jury had been generally instructed on determining the weight and credibility of the evidence. Id. The instruction that was found to be sufficient in Simon stated:

As sole judges of the facts in this case, your exclusive province is to determine what weight and credibility will be assigned the testimony and supporting evidence of each witness in the case. You are required and expected to use your good common sense and sound honest judgment in considering and weighing the testimony of each witness who has testified in the case.

Id. at 810.

¶ 17. Cork admits that a general weight and credibility instruction would have sufficed under Simon, but argues that such an instruction was not given in this case. We find that the jury in the instant case was properly instructed. Jury instructions are to be read as a whole. Heidel, 587 So.2d at 842. The lower court instructed the jury to “determine the facts in this case and to consider and weigh the evidence for that purpose,” that introduction of evidence is governed by rules of law, and that no inferences should be drawn from the court’s eviden-tiary rulings. Further, the court instructed the jury that the defendant is attended by the presumption of innocence unless “overcome by evidence which satisfies the jury of the defendant’s guilt beyond a reasonable doubt.” The jury was sufficiently instructed on their ability to assess the weight and credibility of the evidence of Cork’s confession.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF CHOCTAW COUNTY OF CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH TWO YEARS SUSPENDED, FIVE YEARS OF SUPERVISED PROBATION, AND FINE OF FIVE HUNDRED DOLLARS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CHOCTAW COUNTY.

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


author: KING, P.J.,

text:
    Raymond C. GIUFFRIA, Appellant, v. Dr. Milton CONCANNON, Appellee.
    No. 2002-CP-00376-COA.
    Court of Appeals of Mississippi.
    Aug. 5, 2003.

      Raymond C. Giuffria, appellant, pro se.
    Matthew D. Miller, attorney for appel-lee.
    Before KING, P.J., BRIDGES and IRVING, JJ.
   KING, P.J.,

for the court.

¶ 1. Raymond C. Giuffria filed suit against Dr. Milton Concannon alleging negligence in installing a pacemaker. The trial court dismissed Giuffria’s claim with prejudice finding that he faded to provide expert medical testimony to support his claim.

¶2. Giuffria has filed a pro se appeal. We find no basis for reversal.

FACTS

¶ 3. Giuffria in his original complaint alleged that Dr. Concannon was negligent in installing a pacemaker on March 80, 1999. On April 3, 1999, Giuffria returned to the hospital complaining that his pacemaker was malfunctioning. Dr. Concan-non performed a subsequent procedure to disconnect the atrial lead, which was the cause of the pacemaker malfunction.

¶ 4. Dr. Concannon answered the complaint and propounded discovery requests from Giuffria concerning any expert witness he had to support his claim of medical malpractice. Giuffria provided medical documents from two treating physicians at Oschner Hospital. Neither document referred to Dr. Concannon or specifically stated that there was negligence in the treatment of Giuffria.

¶ 5. On July 20, 2001, Dr. Concannon filed a motion to compel after Giuffria failed to respond to the discovery requests. After a hearing on August 20, 2001, the court entered an order requiring Giuffria to provide, under oath, expert opinion testimony to support his allegations of medical negligence.

¶ 6. On November 11, 2001, Giuffria filed a motion to amend his complaint to add a claim of fraud. Dr. Concannon filed a response to this motion, requesting that the court enter an order requiring Giuffria to plea his fraud claim with particularity, as required by M.R.C.P. 9(b). On November 16, 2001, Giuffria filed his “Complaint for Fraud,” without obtaining leave of court.

¶ 7. On November 27, 2001, the trial judge entered an order giving Giuffria until November 30, 2001, to comply with Rule 9(b) and specify the elements of fraud alleged and set a hearing for December 17, 2001.

¶ 8. On December 4, 2001, Dr. Concan-non filed a motion to dismiss, on the grounds that Giuffria had failed to provide expert witness testimony as required by the court’s previous order and that Giuffria failed to meet the requirements of M.R.C.P. 9(b) in alleging fraud, as required by the court’s November 27, 2001 order.

¶ 9. At the hearing on December 17, the trial judge found that Giuffria had failed to plead fraud with particularity and dismissed the fraud claim with prejudice. The court found the fraud claim was based solely on the medical malpractice claim. The court then gave Giuffria until January 17, 2001, to produce competent expert medical testimony under oath in support of the medical negligence claim. On January 25, 2002, the court entered an order dismissing Giuffria’s complaint with prejudice.

¶ 10. On February 6, 2002, Giuffria filed a “Motion for Mistrial,” alleging “irregularities” in the court’s rulings. The motion was denied on February 22, 2002, and Giuffria filed his notice of appeal on March 8, 2002.

ANALYSIS

¶ 11. The pro se brief filed by Giuffria does not state any specific issues for consideration and fails to cite to any legal authority. On this basis alone, the Court is not required to further consider this appeal.

¶ 12. The law is well established in Mississippi that this Court is not required to address any issue that is not supported by reasons and authority. Hoops v. State, 681 So.2d 521, 535 (Miss.1996) (citing Pate v. State, 419 So.2d 1324, 1325-26 (Miss.1982)); Varvaris v. Perreault, 813 So.2d 750 (Miss.Ct.App.2001). M.R.A.P. 28(a)(1)(6) gives the requirements for the argument in an appellate brief: “The argument shall contain the contentions of appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied upon.” The Court finds that Giuffria has totally failed to present any appropriate argument on appeal and the judgment of the circuit court is affirmed.

¶ 13. The appellee also argues that the appeal taken in this case was not timely. The “Motion for Mistrial” filed on February 15, 2001, was filed twenty-one days after the order of dismissal and the notice of appeal was filed on March 8, 2002, twelve days after the thirty-day time period to perfect an appeal under M.R.A.P. 4(a).

¶ 14. The thirty day period under Rule 4(a) can be tolled or suspended with the filing of post-judgment motions under M.R.A.P. 59 or 60. Rule 60 motions must be filed within ten days after the date of the entry of the judgment, as stated in M.R.A.P. 4(d).

¶ 15. The Court notes that other motions or documents were received by the trial judge from Giuffria after the order of dismissal and have not been provided to this Court on appeal. Because of these apparent omissions from the record and because this appeal can be decided on other grounds, the Court notes but does not address the question of the timeliness of the appeal.

¶ 16. Despite Giuffria’s failure to provide this Court with any legal authority in support of his appeal, the Court finds that there is ample authority in support of the trial court’s decision to dismiss the complaint. Mississippi case law generally demands that a plaintiff in a medical malpractice action employ expert testimony to establish failure by the defendant physician to adhere to the minimum standard of care. Kelley v. Frederic, 573 So.2d 1385, 1387 (Miss.1990); Palmer v. Biloxi Regional Medical Center, Inc., 564 So.2d 1346, 1354-55 (Miss.1990); Phillips By and Through Phillips v. Hull, 516 So.2d 488, 491 (Miss.1987); Cole v. Wiggins, 487 So.2d 203, 205 (Miss.1986). “[I]n a medical malpractice action, negligence cannot be established without medical testimony that the defendant failed to use ordinary skill and care.” Hull, 516 So.2d at 491; see also Walker v. Skiwski, 529 So.2d 184, 187 (Miss.1988) (“Our general rule is that the negligence of a physician may be established only by expert medical testimony.”). An expert is necessary to identify the action or inaction which allegedly constituted a breach of duty and which proximately caused the patient’s injury. Hull, 516 So.2d at 491; Hall, 466 So.2d at 870-73.

¶ 17. Giuffria was given numerous opportunities by the trial court to provide medical expert testimony to support his claim against Dr. Concannon. The court correctly dismissed the medical negligence claim and the fraud claim based on medical negligence against Dr. Concannon.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: MYERS, J.,

text:
    BANKPLUS, Appellant, v. TOYOTA OF NEW ORLEANS, Appellee.
    No. 2002-CA-01403-COA.
    Court of Appeals of Mississippi.
    Aug. 5, 2003.

      Robert P. Thompson, Ridgeland, Lyn Butler Dodson, attorneys for appellant.

      Richard C. Fitzpatrick, Pearl River, attorney for appellee.
    Before KING, P.J., BRIDGES, IRVING and MYERS, JJ.
   MYERS, J.,

for the court.

¶ 1. BankPlus filed suit against Toyota of New Orleans (Toyota) in Pearl River County Circuit Court. From the dismissal of the action, BankPlus appeals asserting the lower court erred in finding it lacked personal jurisdiction over Toyota.

STATEMENT OF FACTS

¶2. Karen Jarrell, a resident of Pearl River County, owned a 1999 Toyota Camry with financing provided by BankPlus. The Camry was involved in an automobile accident. Jarrell was to receive insurance proceeds of $6,400 for the damage to the Camry.

¶ 3. Jarrell decided that instead of repairing her Camry, she would buy a new car. She located a 2000 Toyota Avalon for sale at Toyota. She and the dealership came to an agreement. The agreement, according to Toyota, was that Jarrell would trade in the damaged Camry and insurance proceeds and arrange financing to cover the difference. Toyota would use the insurance proceeds to repair the Camry for resale. Jarrell later claimed that the agreement did not include the insurance proceeds.

¶ 4. Jarrell contacted BankPlus, a Mississippi banking corporation, about financing the purchase of the Avalon. BankPlus contacted Toyota about the arrangement. BankPlus and Toyota had numerous conversations concerning the arrangement. BankPlus agreed to release the title of the Camry to Toyota and finance the difference on the Avalon. Toyota was to forward title of the Avalon to BankPlus.

¶ 5. BankPlus released the lien on the title and mailed it and a cashier’s check in the amount of $16,995 to Toyota. Included with the title and check was a letter from Kenneth Hall, the president of the Bank-Plus branch. It read:

Enclosed with this letter you will find: 1 our cashier’s check # 042116 in the amount of $16,995.00 and 2 — original title to Ms. Jarrell’s 1999 Toyota Camry, VIN2T1CF22P7XC111291 on which we have released our lien. We understand she is trading the 1999 Toyota on her purchase from you of one 2000 Toyota Avalon VIN4T1BF28B5YU102161. If all is in order, please return to my attention the title to the 2000 Toyota.

¶ 6. Toyota negotiated the check but never forwarded the title to the Avalon because Jarrell never sent Toyota the insurance proceeds. Toyota paid a reduced fee for a tow truck company to tow the Camry from Mississippi to its dealership. Toyota repaired and sold the Camry.

¶ 7. Toyota is not a Mississippi business, nor is it qualified to do business in Mississippi. Toyota has radio advertisements that reach across state lines and into Pearl River County. Toyota also makes several monthly sales to Mississippi residents. The purchase agreement between Toyota and Jarrell was that Jarrell was to handle the Mississippi taxes and registration.

LEGAL ANALYSIS

¶ 8. This Court employs a de novo review of jurisdictional questions. McDaniel v. Ritter, 556 So.2d 303, 308 (Miss.1989).

¶ 9. The exercise of in personam jurisdiction of a nonresident defendant may be accomplished pursuant to the Mississippi long-arm statute. Miss.Code. Ann. § 13-3-57 (Rev.2002). The Due Process Clause of the Fourteenth Amendment, however, serves as a limitation on the power of a state’s long-arm statute in the exercise of in personam jurisdiction of a nonresident. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-14, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984).

¶ 10. Simply, there are two components of the standard. First, the state’s long-arm statute, as interpreted by the state courts, must apply. Second, its application in the particular case must comport with federal due process requirements. Brown v. Flowers Industries, Inc., 688 F.2d 328, 331-32 (5th Cir.1982). Thus, the standard, in referring to the power of state courts, incorporates elements of both state and federal law. DeMelo v. Toche Marine, Inc., 711 F.2d 1260, 1264-65 (5th Cir.1983).

Long-Arm Statute

¶ 11. The threshold condition for application of the long-arm statute is the requirement that the nonresident corporation, over which personal jurisdiction is sought, is not a corporation qualified to do business in this state. Once that condition is satisfied, the statute may be properly utilized in three situations: (1) where the nonresident made a contract with a resident of this state to be performed in whole or in part in this state; (2) where the nonresident committed a tort in whole or in part in this state against a resident or nonresident of this state; or (3) where the nonresident did business or performed any character of work or service in this state. Miss.Code. Ann. § 13-3-57 (Rev.2002).

¶ 12. Since Toyota is not a resident Mississippi corporation, the first condition of the long-arm statute is met.

1.Contract

¶ 13. Although Toyota argues that the only contracts were between Jar-rell/BankPlus and Jarrell/Toyota, we hold that there was a contract between Bank-Plus and Toyota. The title to the Camry was to be released by BankPlus in exchange for the title to the Avalon. Toyota also argues that this arrangement was contingent upon Jarrell providing the insurance funds. Even if the agreement was contingent upon Toyota receiving the insurance proceeds, it is still a contract between BankPlus and Toyota. While we do not know the exact words that were spoken on the phone between BankPlus and Toyota, it is apparent that some agreement was reached resulting in BankPlus releasing the lien on the Camry and mailing the title and cashier’s check to Toyota.

2. Tort

¶ 14. BankPlus argues that Toyota committed the tort of conversion. Toyota argues that there was no conversion and even if there were, the conversion took place in Louisiana. A tort is considered to have been committed in part in Mississippi where the injury results in the state. Sorrells v. R. & R. Custom Coach Works, 636 So.2d 668, 672 (Miss.1994). It must be an actual injury, not economic collateral consequences. Jobe v. ATR Marketing, Inc., 87 F.3d 751, 753 (5th Cir.1996).

3. Doing Business

¶ 15. The test to determine whether a nonresident corporation is doing business in Mississippi, as contemplated by our long arm statute, is: (1) the nonresident corporation must purposefully do some act or consummate a transaction in Mississippi; (2) the cause of action must either arise from or be connected with the act or transaction; and (3) the assumption of jurisdiction by Mississippi must not offend traditional notions of fair play and substantial justice. Gross v. Chevrolet Country, Inc. 655 So.2d 873, 877 (Miss.1995).

¶ 16. While Toyota claims it does not do any business in Mississippi, it does advertise in a manner that reaches Pearl River County and does not hesitate to sell to Mississippi residents that come to New Orleans to purchase cars, many of whom hear the advertisements.

¶ 17. Toyota also agreed to accept BankPlus’s check for financing the Avalon for a Mississippi resident. Toyota entered into a transaction with BankPlus in Mississippi and the action arises from the transaction. As stated below, traditional notions of fair play and substantial justice are not offended.

¶ 18. Toyota paid a reduced fee for someone to tow the Camry from Mississippi to its dealership in Louisiana. This strengthens the argument that Toyota was doing business in the State of Mississippi. Due Process

¶ 19. A defendant must have minimum contacts with the forum state so that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” Cappaert v. Walker, Bordelon, Hamlin, Theriot, and Hardy, 680 So.2d 831, 834 (Miss.1996), quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The defendant’s conduct relating to the forum state must have been sufficient to create a reasonable expectation that he could be brought into that state’s courts. Cappaert, 680 So.2d at 834-35, citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).

1. Minimum Contacts

¶ 20. The concept of “minimum contacts” can be further divided into contacts that create specific personal jurisdiction and those that lead to general personal jurisdiction. Allred v. Moore & Peterson, 117 F.3d 278, 286 (5th Cir.1997). Jurisdiction is labeled “specific” when the nonresident defendant’s contacts with the forum state are directly related to the cause of action. “General jurisdiction” will exist even without this direct relationship to the cause of action, if the defendant’s contacts with the forum state are continuous and systematic. Helicopteros Nacionales, 466 U.S. at 413-16, 104 S.Ct. 1868. While it is possible that Toyota has continuous and systematic contacts with the State of Mississippi, it definitely has contacts directly related to the cause of action, thus specific jurisdiction is met.

2. Traditional Notions of Fair Play and Justice

¶ 21. If a nonresident defendant has sufficient minimum contacts with the forum, the “fairness” factor of the jurisdictional inquiry must be examined. Asahi Metal Indus. Co., Ltd. v. Superior Court of Calif., 480 U.S. 102, 105, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987). The Supreme Court has stated that the “fairness” of requiring a nonresident to defend a suit in a distant forum is a function of several factors, including the burden upon the nonresident defendant, the interests of the forum state, the plaintiffs interest in securing relief, the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and the shared interest of the several states in furthering fundamental substantive social policies. World-Wide Volkswagen Corp., 444 U.S. at 292, 100 S.Ct. 559. Since Jarrell and BankPlus are located in Pearl River County and New Orleans is not that far from the forum, it is efficient to have the trial in Pearl River County and does not place any unreasonable burden on Toyota.

3. Reasonable Expectation

¶ 22. Toyota could reasonably have foreseen that by accepting the title to the Camry and negotiating BankPlus’s check without forwarding the title of the Avalon to BankPlus, it would be sued by BankPlus. It was also a reasonable expectation that BankPlus would sue in the county in which it is located and Jarrell is located.

CONCLUSION

¶ 23. The decision of the trial court to dismiss the lawsuit based upon lack of personal jurisdiction is reversed and remanded. The Pearl River County Circuit Court has personal jurisdiction over Toyota in the instant case.

¶ 24. THE JUDGMENT OF THE PEARL RIVER COUNTY CIRCUIT COURT IS REVERSED AND REMANDED. COSTS ARE ASSESSED TO THE APPELLEE.

McMILLIN, C.J., KING AND SOUTHWlCK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, CHANDLER AND GRIFFIS, JJ, CONCUR.