author: THIBODEAUX, Chief Judge.

text:
    GOLD, WEEMS, BRUSER, SUES & RUNDELL v. Tommie Mack GRANGER.
    No. 2006-859.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 29, 2006.
    Rehearing Denied Jan. 31, 2007.

      Henry B. Bruser, III, Michael John O’Shee, Edward E. Rundell, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for PlaintiffAppellee-Gold, Weems, Bruser, Sues & Rundell.
    David Cleveland Hesser, Alexandria, LA, for Plaintiff/Appellee-Gold, Weems, Bruser, Sues & Rundell.
    Staci Knox Villemarette, Cloud, Wim-berly & Villemarette, L.L.C., Lafayette, LA, for Defendant/Appellant-Tommie Mack Granger.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   THIBODEAUX, Chief Judge.

| defendant, Dr. Tommy Mack Granger (Dr. Granger), is a former client of attorney J. Ogden Middleton, II (Middleton), who was a partner in the Plaintiffs law firm of Gold, Weems, Bruser, Sues & Run-dell (Gold). Dr. Granger appeals the trial court judgment awarding Gold $49,999.00 in past due attorney fees, plus twelve percent interest based on the engagement agreement signed by both parties, court costs, and additional attorney fees incurred in the collection of the bill. Dr. Granger alleges that the trial court committed twenty-six errors of law and fact, requiring this court to reverse the judgment. For the following reasons, we affirm the trial court judgment.

I.

ISSUES

While Dr. Granger argues that the trial court committed twenty-six errors, each of which would require this Court to reverse the judgment of the trial court that Dr. Granger owes Gold $49,999.00 in past due attorney fees plus interest and court costs, we find that those errors are encompassed within five issues:

(1) whether the fee charged by Gold was reasonable;
(2) whether the trial court abused its vast discretion in considering the admissibility of evidence;
(3) whether the trial court committed legal error by assessing interest against sums owed at the agreed upon contractual rate of twelve percent, and not using the legal interest rate;
(4) whether the trial court committed manifest error by denying Dr. Gran-ger’s motion for an involuntary dismissal at the close of Gold’s case in chief; and,
(5) whether the trial court erred in denying Dr. Granger’s motion for a new trial.

Jail.

FACTS

Dr. Granger’s marriage to his wife Stephanie ended in divorce. They had one child together during their marriage. During the course of the divorce proceedings, the matter of which of the parents would be named domiciliary parent by the court became a hotly contested issue. While he had a team of lawyers working on his behalf on other matters related to his divorce, in December of 1999 Dr. Gran-ger sought the assistance of Gold, specifically Middleton, to help him in his quest to be named domiciliary parent.

Dr. Granger and Gold created and signed an Engagement Agreement to memorialize their understanding of what Dr. Granger would be billed for and what work Gold would perform on his behalf. Paragraph six of the Engagement Agreement gave Dr. Granger the right to terminate the employment of Gold at any time and have no further obligation to Gold “other than to pay for fees and expenses incurred up to the time of notification of Gold by Client of the termination of employment.” The next paragraph enumerated Gold’s right to collect any unpaid bills. “In the event that collection efforts and/or litigation are necessary to obtain payment of monies due under this agreement, Client shall be liable for all costs and expenses thereof (including attorney’s fees, calculated at the rates set forth above if Gold elects to handle the matter itself).”

The custody issue was litigated intensely by both parents. For more than one year, many hours of work were performed, generating thousands of dollars in legal fees up through and including the trial on the custody matter. The trial court judgment named Dr. Granger’s ex-wife as the domiciliary parent. Dr. Granger had been receiving monthly, itemized bills from Gold for the time, resources, and|3expenses that were being expended on behalf of his case. Upon learning the trial court judgment against him, Dr. Granger began expressing his dissatisfaction with the work done by Gold. He hired a new attorney to pursue an appeal of the trial court judgment and refused to pay Gold any of the outstanding balance on his bill.

Gold filed a breach of contract suit to collect the fees it claimed were owed based on the monthly bills generated and sent to Dr. Granger and the Engagement Agreement signed by both parties. While Gold originally claimed Dr. Granger owed approximately $80,000.00, that claim was modified and reduced to $49,999.00 plus interest, court costs, and attorney fees incurred in the collection of the debt in order to avoid a jury trial. The trial court determined that Gold proved the amount was in fact owed to it by Dr. Granger, and that Dr. Granger did not bear his burden of proving that those fees were clearly excessive. Therefore, judgment was rendered against Dr. Granger for $49,999.00 plus interest, court costs, and attorney fees. Dr. Granger then timely filed this appeal.

III.

LAW AND DISCUSSION

Standard of Review

Courts are vested with the responsibility of both monitoring and analyzing the attorney/client relationship, even when it is based on a written contract between the parties.

[Although the basic relationship between client and lawyer may be contractual, that association is nonetheless subject to the inherent authority of this Court to positively affect that fiduciary relationship through its power to regulate the practice of law. See O’Rourke v. Cairns, 95-3054 (La.11/25/96), 683 So.2d 697; [LSBA v.] Edwins, 540 So.2d [294 (La.1989) ] at 299.

Chittenden v. State Farm Mut. Auto. Ins. Co., 00-414, pp. 9-10 (La.5/15/01), 788 So.2d 1140, 1147-48 (footnote omitted).

When there is a dispute concerning fees charged by the attorney to the client pursuant to the contract between the parties, courts resolve the disagreement using the Louisiana Rules of Professional Conduct (RPC) as guidance. “Therefore, any dispute relative to an attorney-client relationship is subject to the close scrutiny of this Court and is resolved under the codal provisions as illuminated by the RPC. See Leenerts Farms v. Rogers, 421 So.2d 216 (La.1982); see also Watson v. Cook, 421 So.2d 1312, 1316 (La.App. 2 Cir.1983).” Chittenden v. State Farm Mut. Auto. Ins. Co., 788 So.2d at 1148.

The RPC which governs the determination of whether the fees set and charged by an attorney are reasonable reads in pertinent part as follows:

Rule 1.5 Fees
(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the result obtained;
(5) the time limitations imposed by the client or by the circumstances;
|R(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.

Louisiana Rules of Professional Conduct 1.5.

Fees charged for legal services are open accounts. Louisiana Revised Statutes 9:2781 provides in pertinent part:

§ 2781. Open accounts; attorney fees; professional fees; open account owed to the state
A. When any person fails to pay an open account within thirty days after the claimant sends written demand therefor correctly setting forth the amount owed, that person shall be liable to the claimant for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant. Citation and service of a petition shall be deemed written demand for the purpose of this Section. If the claimant and his attorney have expressly agreed that the debt- or shall be liable for the claimant’s attorney fees in a fixed or determinable amount, the claimant is entitled to that amount when judgment on the claim is rendered in favor of the claimant. Receipt of written demand by the person is not required.
D. For the purposes of this Section and Code of Civil Procedure Articles 1702 and 4916, “open account” includes any account for which a part or all of the balance is past due, whether or not the account reflects one or more transactions and whether or not at the time of contracting the parties expected future transactions. “Open account” 1 fishall include debts incurred for professional services, including but not limited to legal and medical services. For the purposes of this Section only, attorney fees shall be paid on open accounts owed to the state.

La.R.S. 9:2781 A & D.

While courts are vested with the responsibility of policing attorney conduct, that responsibility must be tempered with restraint, especially when the parties have signed a contract which memorializes the terms of their agreed-upon relationship.

Review of allegedly excessive attorney’s fees is tempered with judicial restraint. Drury v. Fawer, 590 So.2d 808, 810 (La.App. 4th Cir.1991), writ denied, 592 So.2d 1304 (La.1992). Courts are not in the business of setting fees. Id. However, if the court factually determines that fees billed were never earned, a reduction in the fees is proper. Id. at 811. Otherwise, absent a showing that the fee charged was clearly excessive, a contractual relationship between an attorney and client should not be altered. Id. at 811. “A fee is ‘clearly excessive,’ if it is ‘so grossly out of proportion with the fees charged for similar services by other attorneys in the locale as to constitute an unquestionable abuse of the attorney’s professional responsibility to the public.’ ” Teche Bank and Trust Co. v. Willis, supra [93-732, p. 5 (La.App. 3 Cir. 2/2/94), 631 So.2d 644] at 646-47 (quoting Desselle v. Moreauville State Bank, 553 So.2d 1067, 1069 (La.App. 3d Cir.1989), writ denied, 558 So.2d 584 (La.1990)). The trial court’s determination of whether a fee is clearly excessive is a factual question which will not be disturbed absent manifest error. Id. at 647.

Salsbury v. Salsbury, 27,062, p. 6 (La.App. 2 Cir. 6/21/95), 658 So.2d 734, 738-39.

An appellate court cannot overturn or reverse a trial court’s setting of attorney fees unless the appellate court finds that the trial court abused the discretion afforded by the RPC, the Louisiana Constitution, and Louisiana jurisprudence. See RPC 1.5; Leenerts Farms, Inc., 421 So.2d 216, and Chittenden, 788 So.2d 1140. “The amount of reasonable attorney fees to be allowed is at the discretion of the trial court. Teche Bank and Trust Co. v. Willis, 93-732 (La.App. 3 Cir. 2/2/94); 631 So.2d 644.” Albert K. Newlin, Inc. v. Morris, 00-1564, pp. 6-7 (La.App. 3 Cir. 2/28/01), 782 So.2d 1116, 1120, writ denied, 01-875 (La.5/25/01), 793 So.2d 164.

However, appellate courts must examine the reasonableness of the fee, even if based on a contractual agreement.

The Louisiana Supreme Court and this court, in holding that to enforce Article 2000 in some instances, may violate the Rules of Professional Conduct’s ban against an attorney accepting a clearly excessive fee, have placed an obligation on courts to inquire into the reasonableness of attorney fees stipulated in contractual agreements. Desselle, 553 So.2d 1067 at 1069.

Teche Bank and Trust Co. v. Willis, 93-732, p. 6 (La.App. 3 Cir. 2/2/94), 631 So.2d 644, 646.

[Hjowever, quantum meruit does not serve to permit a client who has agreed to pay an hourly fee, and on whose behalf services have been performed pursuant to that agreement, to ignore statements for those services, discharge the attorney, and avoid contractual fee obligations theretofore incurred. As to services rendered in accordance with the parties’ agreement, the contractual provision is enforceable unless the fee is “excessive, unearned, or incommensurate.” Lester v. Lester, 516 So.2d 219 (La.App. 4 Cir.1987).

Salley & Salley v. Stoll, 03-807, p. 6 (La.App. 5 Cir. 12/9/03), 864 So.2d 698, 703.

Reasonableness of the Fees Charged

The one who asserts a fact bears the burden of proving that fact; therefore, the burden of proving the reasonableness of the fees charged is on the attorney claiming fees are owed. Succession of Herrle, 517 So.2d 386 (La.App. 5 Cir.1987), writ denied, 519 So.2d 129 (La.1988). Once an attorney proves to the trial court’s satisfaction that the amount claimed due is actually owed, the burden of proof shifts to the client to prove that the fees are clearly excessive. Teche Bank and Trust Co., 631 So.2d 644.

|sOf course, just because particular evidence is admissible does not mean that it will be persuasive to the finder of fact or that it is sufficient to support some particular factual finding. But, in the present case it is obvious that the trial court did find the billing statements persuasive. The issues of the work done and the amounts owed are ones of fact and we may not set aside the trial court’s factual determinations unless they are “clearly wrong” or “manifestly erroneous.”

Fawer, Brian, Hardy & Zatzkis v. Howes, 93-2076, p. 5 (La.App. 5 Cir. 6/15/94), 639 So.2d 329, 332, writ denied, 94-1893 (La.10/28/94), 644 So.2d 653.

Gold submitted copies of the monthly billing statements sent to and received by Dr. Granger, the Engagement Agreement which served as the contract for agreed-upon services and terms between the parties, itemized bills for work and time spent on Dr. Granger’s case, the entire Gold file for work performed on Dr. Granger’s case, and the testimony of Middleton to support the claim that the fees claimed were actually owed. The trial court ruled that those various forms of evidence satisfied Gold’s burden of proving that the fees were actually owed. The burden then shifted to Dr. Granger to prove that the fees owed were clearly excessive.

Dr. Granger does not dispute the hourly rate charged by Gold. He is not arguing that the fees charged were clearly excessive. Instead, he argues that Gold charged for work that was either unnecessary or not actually performed. Dr. Gran-ger received bills each and every month from Gold. The bills he received provided details of the reasons for each of the new monthly charges, including providing Dr. Granger with a running total on the balance of what was owed by him to Gold. Gold argues that Dr. Granger made payments on those bills and never complained about the amount or size of the charges until he learned that he lost his battle to become domiciliary parent. In fact, Gold argues that Dr. Granger was always asking Middleton to put in more and more time on Dr. Granger’s case to ensure that Dr. | fl Granger was awarded domiciliary custody of his young daughter. Based on the terms of their contractual engagement agreement, Dr. Granger could have fired Gold at any time. He did not have to allow the bills to accumulate unquestioned for so long.

Dr. Granger disputes 141 of the 1131 specific billing entries in the Gold bill that Gold alleges are still unpaid. Most of the disputed entries consist of phone calls, meetings, and conferences with other attorneys that Dr. Granger asserts do not match the time sheets of those other attorneys. Gold argues that even if these specific billing entries were dropped from the balance owed by Dr. Granger, it would only represent 4.8% of the entries, or 8% of the total bill. After reviewing the record in its entirety, we find that it was not unreasonable nor an abuse of discretion for the trial court to determine that in fact the fees charged were based on work actually performed and, therefore, owed by Dr. Granger to Gold. We agree with the trial court that Dr. Granger did not prove that the fees charged were for work that was clearly excessive and unnecessary. We, therefore, affirm the trial court’s judgment that the fees charged to Dr. Granger were reasonable.

Admissibility of Evidence

Almost half of the errors that Dr. Granger alleges were committed by the trial court involve issues surrounding the admissibility of evidence. A trial court is given vast discretion in its ruling on the admissibility of evidence, including whether or not witness testimony is relevant and admissible.

The district court is given vast discretion in its decisions on evidentiary rulings and its decision to admit or exclude evidence will not be reversed on appeal unless it is clearly shown that it has abused that discretion. Foster v. Rabalais Masonry, Inc., 01-1394 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, writ denied, 02-1164 (La.6/14/02), 818 So.2d 784.

Bellsouth Telecommunications, Inc. v. City of Lafayette, 05-1478, p. 23 (La.App. 3 Cir. 1/5/06), 919 So.2d 844, 860.

We cannot overturn a trial court’s rulings on the admissibility of evidence unless those rulings were clearly wrong or we find that the trial court abused the vast discretion it is accorded. Dr. Granger attempted to admit the testimony and deposition testimony of many various witnesses that the trial court found were irrelevant to the basic question presented to it, namely, whether the fees charged by Gold were reasonable and not clearly excessive.

The trial court has broad discretion in ruling on pre-trial discovery, and an appellate court should not upset such a ruling absent an abuse of that discretion. King v. Phelps Dunbar, L.L.P., 01-1735 (La.App. 4th Cir.4/2/03), 844 So.2d 1012. This broad discretion includes the right to refuse or limit discovery of matters that are not relevant to the issues. Id.

Walker, Tooke & Lyons, L.L.P. v. Sapp, 37,966, p. 8 (La.App. 2 Cir. 12/10/03), 862 So.2d 414, 419, writ not considered, 04-88 (La.3/19/04), 869 So.2d 836.

We have carefully reviewed the entire record of this case and find that the trial court did not abuse its discretion in its rulings on the admissibility of the various forms of evidence submitted by Dr. Gran-ger. Therefore, we affirm all of the trial court’s evidentiary rulings.

Contractual Versus Legal Rate of Interest

As mentioned above, a contract existed which memorialized the terms of representation agreed to by both Dr. Granger and Gold. That contract specified that if any sum of money owed by Dr. Granger went unpaid for thirty days or more, an interest rate of twelve percent would attach to the outstanding balance. It is allowable under Louisiana law for an attorney to charge a client interest on sums overdue as long as that interest rate is spelled out in a contractual agreement.

In With respect to the practice of attorneys charging their clients interest, it is permitted provided the client agrees in writing to such a charge, and the interest rate is lawful and reasonable. Chittenden, supra. Interest is a charge, or fee, commonly expressed as an annual percentage rate, paid by a person for the use he makes of, or a detention he exerts on, monies belonging to another, for a specified period of time. Id.

Walker, Tooke, & Lyons, L.L.P. v. Sapp, 862 So.2d at 418.

Both the Louisiana Civil Code and the Louisiana Revised Statutes have codified how interest should be calculated on sums of money owed both under a contractual agreement and if based on the judicial rate of interest. The following are the applicable sections of Louisiana law regarding interest rates:

La.Civ.Code art.2000. Damages for delay measured by interest; no need of proof; attorney fees
When the object of the performance is a sum of money, damages for delay in performance are measured by the interest on that sum from the time it is due, at the rate agreed by the parties or, in the absence of agreement, at the rate of legal interest as fixed by R.S. 9:3500. The obligee may recover these damages without having to prove any loss, and whatever loss he may have suffered he can recover no more. If the parties, by written contract, have expressly agreed that the obligor shall also be liable for the obligee’s attorney fees in a fixed or determinable amount, the obligee is entitled to that amount as well.
La.R.S. 9:3500. Rates of legal and conventional interest; usury
A. Interest is either legal or conventional.
C. (1) The amount of the conventional interest cannot exceed twelve percent per annum. The same must be fixed in writing; testimonial proof of it is not admitted in any case.

Dr. Granger was ordered by the trial court to pay the interest rate on sums owed and overdue that he agreed to per the contractual agreement he signed |1gwith Gold, which was twelve percent. Since this is the maximum amount allowed by law, and Dr. Granger agreed to that rate of interest in writing, the trial court committed no error in assessing the conventional, contractual interest rate of twelve percent against the fee awarded to Gold.

Denial of Dr. Granger’s Motion for an Involuntary Dismissal

At the close of Gold’s case-in-chief, Dr. Granger asked the court to grant him an involuntary dismissal. He argued that Gold had not submitted evidence into the record to prove that the fees requested were actually owed.

Louisiana Code of Civil Procedure Article 1672(B) guides us in determining the appropriate standard for either granting or denying a motion for involuntary dismissal:

B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

An appellate court reviews a trial court’s judgment on a motion for involuntary dismissal under a manifest error standard of review. Kite v. Carter, 03-378 (La.App. 3 Cir. 10/1/03), 856 So.2d 1271. A trial court is accorded great discretion in acting upon a motion for involuntary dismissal. Smith v. Knight, 39,781 (La.App. 2 Cir. 6/29/05), 907 So.2d 831. Our review of the record convinces us that the trial court did not abuse its discretion. Gold presented more than sufficient evidence to establish its claim by a preponderance of the evidence.

|iaGold offered its entire file regarding its representation of Dr. Granger, including all of the statements for outstanding bills, during the course of the trial before closing its case-in-chief. The trial court took this offer of evidence under advisement, and then later officially admitted the entire file into the official record of the case.

Since Gold offered this substantial body of evidence for admission into the record before closing its case-in-chief, the trial court did not err in denying Dr. Granger’s motion for an involuntary dismissal. Gold did indeed offer more than a sufficient amount of evidence to prove that the fees it claimed were owed were in fact due. There was sufficient evidence in the record at the time Dr. Granger offered his motion for involuntary dismissal to support a denial of that motion.

Motion for a New Trial

Dr. Granger focuses his motion for a new trial on the principal contention that the trial court erred in awarding interest pursuant to the contract between the parties. That assertion has been previously addressed in this opinion. Further, it is well-settled that a trial court is granted much discretion in granting or denying a motion for a new trial under La.Code Civ.P. art. 1972. Boudreaux v. Wimberley, 02-1064 (La.App. 3 Cir. 4/2/03), 843 So.2d 519, writ denied, 03-1251 (La.9/5/03), 852 So.2d 1037; McGhee v. Wallace Drennan, Inc., 04-950 (La.App. 4 Cir. 4/20/05), 904 So.2d 3.

Attorney Fees for Defending the Appeal

Additionally, Gold has formally requested additional attorney fees for defending this appeal. Louisiana law and jurisprudence allow a party to be compensated for defending a case on appeal under certain circumstances.

luArt. 2164. Scope of appeal and action to be taken; costs
The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.

La.Code Civ.P. art. 2164.

[Additional attorney fees are usually awarded on appeal to an appellee when the appellant obtains no relief, and the appeal has necessitated additional work on the opposing party’s counsel, provided that the opposing party appropriately requests an increase. Guidry v. Millers Casualty Insurance Company, 01-0001, p. 11 (La.App. 1st Cir.6/21/02), 822 So.2d 675, 684.

Sund v. St. Helena Parish Sch. Bd., 05-2473, p. 6 (La.App. 1 Cir. 5/5/06), 935 So.2d 219, 223, writ denied, 06-1392 (La.9/22/06), 937 So.2d 392.

Based on the record before us, and using the factors listed in RPC 1.5 as our guide, because of the work performed in responding to the voluminous appellate brief and record submitted by Dr. Gran-ger, we award Gold an additional $4,000.00 in attorney fees for defending this appeal.

IV.

CONCLUSION

While a contract between two or more parties is regarded as the law governing that contractual relationship, when the contract concerns the fees charged by attorneys to clients, Louisiana law directs the court to monitor that relationship. If a client does not pay his or her attorney fees, an attorney may seek redress with the court for payment under a suit for breach of contract. The attorney must first prove that the fee charged was reasonable. Upon successfully proving the fee was reasonable, the burden of proof then shifts to the client to prove that the fee charged 11fiwas clearly excessive. Gold successfully proved that the fee charged was reasonable. Dr. Granger could not meet his burden of proving that the fees charged to him by Gold were clearly excessive. Therefore, the trial court’s award of attorney fees in the amount of $49,999.00 plus court costs and interest is affirmed.

A trial court is afforded vast discretion regarding determinations of the admissibility of evidence. Unless a trial court abuses that vast discretion, its evidentiary rulings will not be disturbed on appeal. In this case, we find that the trial court did not abuse its vast discretion, and we affirm the evidentiary rulings made by that court.

When parties to a contract stipulate to a rate of interest for overdue sums owed, as long as that rate of interest is within the legal limit, a court will enforce the contractual interest rate. Because Dr. Granger agreed to pay interest at the rate of twelve percent on any sums owed that were overdue by thirty days or more via the signed engagement agreement, the trial court is affirmed in awarding interest on the attorney fee award at that contractual rate.

An appellate court reviews a motion for involuntary dismissal de novo. Upon reviewing the entire record, we find that there was sufficient evidence offered by Gold to prove that the fees it claimed were owed were in fact earned and reasonable. Therefore, Gold proved that it had a right to relief, and the motion for involuntary dismissal was properly denied by the trial court.

Gold is awarded an additional $4,000.00 for work required in defending this appeal.

All costs of this appeal are assessed to Defendant/Appellant, Tommie Mack Gran-ger.

AFFIRMED.


source: Caselaw Access Project

author: SMITH, Chief Justice, DIAZ, Justice,

license: Public Domain

text:
    Guy J. HOWARD and Joyce Howard v. The ESTATE OF Earline B. HARPER, by and through Talmadge L. HARPER, Administrator of the Estate of Earline B. Harper, and for the use and Benefit of the Estate of Earline B. Harper, and for the Use and Benefit of the Wrongful Death Beneficiaries of Earline B. Harper. Guy J. Howard and Joyce Howard v. The Estate of Melvin Thead, by and through Sandra Patton, Administrtrix of the Estate of Melvin Thead, for the use and Benefit of the Estate of Melvin Thead, and for the Use and Benefit of the Wrongful Death Beneficiaries of Melvin Thead.
    Nos. 2005-IA-00115-SCT, 2005-IA-00117-SCT.
    Supreme Court of Mississippi.
    Oct. 26, 2006.
    Rehearing Denied Feb. 1, 2007.

      William W. McKinley, Jr., and Amanda Benefield Quave, Biloxi, attorneys for appellants.
    Douglas Bryant Chaffin, Anthony . Lance Reins, Susan Nichols Estes, Kenneth Luke Connor, and Stephen B. Jackson, Hatties-burg, attorneys for appellees.
   SMITH, Chief Justice,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On October 6, 1997, Melvin Thead, in a state of deteriorated health, including age-related dementia and impaired cognitive skills, was admitted to a Benchmark Healthcare nursing home in Marion, Mississippi. Likewise, on December 30, 1997, Earline B. Harper, with similar health problems, was also admitted to Benchmark’s Marion facility.

¶ 2. Representatives of both the Estates of Melvin Thead and Earline B. Harper (collectively “Plaintiffs”) filed suit on April 12, 2002, and May 21, 2002, respectively, against Benchmark Health Care, Inc., and Benchmark Management and Investment, Inc. (collectively “Benchmark”), “John Does 1 through 10,” and “Unidentified Entities 1 through 10.” The Plaintiffs also filed suit against Joyce Howard in her capacity as administrator of Benchmark, as well as Guy J. Howard in his capacity as licensee of Benchmark, alleging (1) simple negligence, (2) medical malpractice (3) malice and/or gross negligence, (4) fraud, (5) breach of fiduciary duty, (6) survival claim, and (7) wrongful death.

¶ 3. Subsequently, both Joyce and Guy J. Howard filed a motion to dismiss the Plaintiffs’ claims against them arguing that under Miss. R. Civ. P. 12(b)(6), the Plaintiffs failed to state a claim upon which relief could be granted. The trial court denied the motion, as well as a certification of its ruling for interlocutory appeal. The Howards filed petitions for interlocutory appeal to this Court. This Court granted the petitions, stayed proceedings in the trial court pending appeal, and consolidated both cases. See M.R.A.P. 5.

¶ 4. Finding error by the trial court, we reverse the circuit court’s denial of the Howards’ Motions to Dismiss under Rule 12(b)(6).

ISSUES

I. Whether a Common Law Duty of Care Is Owed by a Nursing Home Administrator and Licensee to Nursing Home Patients.

II. Whether a Statutory Duty Is Owed by a Nursing Home Administrator or Licensee to Nursing Home Patients.

III.Whether the Howards, as Administrator and Licensee, May Be Held Liable for Medical Malpractice.

IY. Whether the Howards, as Administrator and Licensee, May Be Held Liable for Fraud.

Y. Whether the Howards, as Administrator and Licensee, May Be Held Liable for Breach of Fiduciary Duty.

STANDARD OF REVIEW

¶ 5. “A motion to dismiss for failure to state a claim under Mississippi Rule of Civil Procedure 12(b)(6) raises an issue of law. This Court reviews questions of law de novo.” Sennett v. United States Fid. & Guar. Co., 757 So.2d 206, 209 (Miss.2000) (citations omitted). “When considering a motion to dismiss, the allegations in the complaint must be taken as true and the motion should not be granted unless it appears beyond reasonable doubt that the plaintiff will be unable to prove any set of facts in support of her claim.” Liggans v. Coahoma Sheriff's Dep’t, 823 So.2d 1152, 1154 (Miss.2002). Whether a duty exists is a question of law. Rein v. Benchmark Constr. Co., 865 So.2d 1134, 1143 (Miss.2004); Donald v. Amoco Prod. Co., 735 So.2d 161, 174 (Miss.1999).

ANALYSIS

¶ 6. In their complaints, Plaintiffs allege defendant Joyce Howard, as administrator, was responsible for management and supervision of the nursing home, and was therefore negligent by failing to hire an adequate amount of nursing personnel, to supervise and train the personnel, as well as prepare and maintain adequate records, among other allegations. The Plaintiffs also allege defendant Guy J. Howard, as licensee, failed to provide a sufficient number of qualified personnel, including nurses and other staff to meet the needs of the Plaintiffs, in addition to other allegations.

¶ 7. The Plaintiffs argue the both the administrator and licensee owe a common-law duty of care to nursing home residents, owe a statutory duty of care to nursing home residents, and that state regulations create a private cause of action for damages for deprivations or infringements of a resident’s right to proper care. The Howards, on the other hand, argue no such duty exists under any legal theory. This issue is of first impression before this Court.

I. Whether a Common Law Duty of Care Is Owed by a Nursing Home Administrator and Licensee to Nursing Home Patients.

¶ 8. It is well settled that a nursing home or its proprietor or owner can be held liable under general principles of tort law for negligent acts or omissions regarding the care of its residents. See Dwpree v. Plantation Pointe, L.P., 892 So.2d 228, 235 (Miss.2004) (sufficient evidence existed to support a jury’s finding that nursing home was not negligent in treatment and protection of a resident); Vicksburg Partners, L.P. v. Stephens, 911 So.2d 507, 513-25 (Miss.2005) (certain provisions of an arbitration agreement found enforceable where a plaintiff filed a wrongful death action against a nursing home); Lagrone v. Helman, 233 Miss. 654, 103 So.2d 365, 368 (Miss.1958) (jury was properly instructed that nursing home had a duty to use reasonable care for the safety of the plaintiff). The Plaintiffs argue this duty extends to administrators and licensees because they are involved with a nursing home’s operations.

¶ 9. The Plaintiffs cite Bremenkamp v. Beverly Enter.-Kan., Inc., 762 F.Supp. 884, 891 (D.Kan.1991) (citing Juhnke v. Evangelical Lutheran Good Samaritan Soc’y, 6 Kan.App.2d 744, 634 P.2d 1132, 1136 (1981)), for its holding that “the administrator of an adult care center or nursing home is under a duty to exercise reasonable care to avoid injuries to patients.” However, we find that the United States District Court for the District of Kansas used the term administrator in a different sense than is used today. This Court’s concludes that in using the term administrator the district court was actually referring to the nursing home facility itself, since the nursing home was the only defendant named in the suit. Similarly, the Juhnke opinion does not discuss administrator liability. The Juhnke decision, where the only defendant was a nursing home, merely stated that “the proprietors of a nursing home are under a duty to exercise reasonable care to , avoid injuries to patients.... ” Juhnke, 634 P.2d at 1136.

¶ 10. The Plaintiffs also cite Beverly Enter.-Fla., Inc. v. Spilman, 661 So.2d 867 (Fla. 5th DCA 1995), for what the Plaintiffs contend is support for the imposition of a common law duty on nursing home administrators and licensees owed to nursing home patients. The Plaintiffs point out the court’s discussion of the administrator’s responsibilities:

[The facility’s] administrator testified that she had not been familiar with [the patient’s] plight. Surely she was familiar with the rapid transformations to neatness and cleanliness when a state inspection was imminent. She testified that she was aware of the incompetency of the director of nursing in “managerial organizational skills.” It is difficult to imagine that an employee with managerial responsibilities either knew of [the patient’s] plight and failed to take any action to assist this totally dependent human being or so totally ignored the operation of the nursing facility that [the patient’s] plight went unnoticed. Either situation exhibits a reckless disregard of human life or of the safety of persons exposed to its dangerous effects, or reckless indifference to the rights of [the patient]....

Id. at 873-74. We disagree with the Plaintiffs’ contention. First, as in Juhnke, the only defendant in the case was the nursing home itself. Furthermore, the court’s discussion was made in the context of whether the plaintiff was entitled to punitive damages based on the nursing home’s treatment of the plaintiff. No discussion of administrator liability exists in the Spilman decision.

¶ 11. The Plaintiffs seek to expand the current common law duty that a nursing home or its proprietor or owner can be held liable under general principles of tort law for negligent acts or omissions regarding the care of its residents. Based on the absence of statutory law from the Legislature and the absence of case law calling for the expansion of this duty, as well as the fact that such expansion would be duplica-tive of the duty already owed by the nursing home business owner or proprietor, we decline to impose the same common law duty upon a nursing home licensee or administrator.

II. Whether a Statutory Duty of Care Is Owed by a Nursing Home Administrator or Licensee to Nursing Home Patients.

¶ 12. The Plaintiffs also argue Mississippi statutes and regulations charge administrators and licensees with a duty of care owed to nursing home residents. The Plaintiffs cite Miss.Code Ann. Sections 43-11-1, et seq., Rules, Regulations, and Minimum Standards for Institutions for the Aged and Infirm, and Miss.Code Ann. Sections 73-17-1, et seq., asserting these statutes and regulations establish such a duty.

¶ 13. An “institution for the aged or infirm” is required to obtain a license in order to operate legally in the state of Mississippi. Miss.Code Ann. § 43-11-5. The purpose of the licensing provisions is to “insure safe, sanitary and reasonably adequate care of individuals” while under the care of nursing home facilities. Miss. Code Ann. § 43-11-3. The chapter also mandates penalties for any person operating a nursing home without a license. Miss.Code Ann. § 43-11-25. The statute gives the Mississippi State Department of Health the authority to grant and revoke such licenses, as well as promulgate regulations in order to promote adequate care for nursing home patients. Miss.Code Ann. § 43-11-7 through § 43-11-13. These regulations are entitled “Rules, Regulations and Minimum Standards for Institutions for the Aged or Infirm” (“Minimum Standards”). Miss.Code Ann. § 43-11-13. Sections 73-17-1 et seq., set forth licensure requirements for an individual, whether or not he has an ownership interest, who serves to perform the administrative functions of a nursing home, including the decisions involved with planning or directing the nursing home. Miss.Code Ann. § 73-17-11; Miss.Code Ann. § 73-17-5. The chapter also creates a nursing home board of administrators and explains the scope of authority granted to the board. Miss.Code Ann. § 73-17-7 through § 73-17-9.

¶ 14. The Minimum Standards, as mandated in section 43-11-13, list classifications, regulations, and standards a nursing home must follow. Pertinent parts of the Minimum Standards enumerate the responsibilities of both a nursing home administrator and licensee.

¶ 15. In reviewing statutes, “this Court follows the long established rule that statutes that are in derogation of the common law are, as a general rule, strictly construed, not extending liability ‘beyond that which is clearly indicated by its express terms.’ ” Warren v. Glascoe, 880 So.2d 1034, 1037 (Miss.2004) (quoting Houston v. Holmes, 202 Miss. 300, 303, 32 So.2d 138, 139 (1947)). We disagree with the Plaintiffs’ contention. Neither of these licensing statutes expressly create a duty by a licensee or an administrator to residents of a nursing home; nor do we hold that a breach of a licensing statute supports a negligence action filed by a third party. See Wills v. De Kalb Area Retirement Ctr., 175 Ill.App.3d 833, 125 Ill.Dec. 657, 530 N.E.2d 1066, 1071-72 (1988) (where the state legislature did not expressly provide for a cause of action for the death of a nursing home patient by statute, the court would not authorize such an action under the statute).

¶ 16. The Plaintiffs also' argue that the Minimum Standards provide a cause of action against an administrator and licensee. They cite Minimum Standards Section H, 408.2 (Amended August 12, 2004), which states:

The residents’ rights policies and procedures ensure that each resident admitted to the facility is encouraged and assisted, throughout his period of stay, . , to exercise his rights as a resident and as a citizen, and to this end may voice grievances, has a right of action for damages or other relief for deprivations or infringements of his right to adequate and proper treatment and care established by applicable statute, rule, regulation or contract, and to recommend changes in policies and services to facility staff and/or to outside representatives of his choice, free from restraint, interference, coercion, discrimination, or reprisal;

(Emphasis added). We disagree with the Plaintiffs’ contention. First, the clause does not specifically establish a right of action against a nursing homes’ administrator or licensee. Second, the Plaintiffs fail to realize the limitation place on regulatory authority to create such a right. State boards and commissions are creatures of the Legislature and have no powers other than those delegated to it by the Legislature. Masonite Corp. v. State Oil & Gas Bd., 240 So.2d 446, 449 (Miss.1970) (State Oil and Gas Board has only the powers delegated to it by the Legislature). Cf. Oktibbeha County Bd. of Educ. v. Town of Sturgis, 531 So.2d 585, 589 (Miss.1988) (county’s board of supervisors has only the powers delegated to it by the legislature). The Minimum Standards issued by the State Board of Health are a result of the legislature’s mandate to impose licensing requirements ' on nursing homes. As the scope of sections 43-11-1 et seq. is limited to licensing concerns, any duty (or inference thereof) created by the Minimum Standards is unenforceable.

¶ 17. Third, this Court’s treatment of internal regulations does not comport with the Plaintiffs’ argument. In Moore v. Mem’l Hosp., 825 So.2d 658, 660-62 (Miss.2002), parents of a child who became ill following birth filed suit against several defendants, alleging medication the mother took during the pregnancy caused the child to suffer medical complications. Among the defendants was a pharmacy which dispensed the medication to the mother while she was pregnant. Id. On appeal to this Court, the parents argued the trial court erred when it granted summary judgment for of the pharmacy, because the pharmacy violated the State Board of Pharmacy’s internal regulations. Id. at 665. We affirmed the trial court’s ruling, finding that “a violation of one of [the State Board of Pharmacy’s] internal regulations, which may serve as evidence of negligence, does not, however, create a separate cause of action. The regulations do not establish a legal duty of care to be applied in a civil action.” Id. Likewise, we hold that Minimum Standards, which serve as internal licensing regulations, do not create a separate cause of action nor establish a duty of care owed by nursing home administrators and licensees to nursing home patients.

III. Whether the Howards, as Administrator and Licensee, May Be Held Liable for Medical Malpractice.

¶ 18. The Howards argue that they cannot be held liable for medical malpractice. The Plaintiffs respond that the Howards are barred from asserting this issue on appeal because the Howards neither made this allegation in their motion to dismiss, nor made the allegation in their petition for interlocutory appeal. We disagree. In the Howards’ motion to dismiss, they asserted the Plaintiffs failed to state a claim upon which relief could be granted pursuant to Miss. R. Civ. P. 12(b)(6). We find this assertion is sufficient to preserve the issue for appeal.

¶ 19. The Howards argue the Plaintiffs cannot maintain an action against them for medical malpractice, because as a administrator and a licensee, they are not medical providers. Instead, they are responsible for administration concerns and regulatory compliance. In Hall v. Hilbun, 466 So.2d 856 (Miss.1985), this Court stated “[m]edical malpractice is legal fault by a physician or surgeon. It arises from the failure of a physician to provide the quality of care required by law.” Hilbun, 466 So.2d at 866 (footnote admitted). See Cheeks v. Bio-Medical Applications, Inc., 908 So.2d 117, 120 (Miss.2005) (in order to present a claim of medical malpractice, a plaintiff must show, inter alia, an doctor-patient relationship and its attendant duty). We agree with the Howards that, in their official capacity as licensee and administrator, they are not medical care providers. Their responsibilities are to the nursing home and the licensing authorities as stated in this Court’s analysis of the Howards’ second issue. As such, we find that the Plaintiffs cannot, as a matter of law, sustain an action of medical malpractice against the Howards.

IV. Whether the Howards, as Administrator and Licensee, May Be Held Liable for Fraud.

¶ 20. The Howards argue that the Plaintiffs’ allegations of fraud cannot stand because the Plaintiffs failed to plead their claim with particularity. “Fraud will not be inferred or presumed and may not be charged in general terms. The circumstances of the alleged fraud such as the time, place and contents of any false representations or conduct must be stated.” Allen v. Mac Tools, Inc., 671 So.2d 636, 642 (Miss.1996). More importantly, circumstances constituting fraud must be stated with particularity. Miss. R. Civ. P. 9(b).

¶ 21. The Howards argue that the Plaintiffs’ blanket assertions against them and the other defendants do not meet the particularity requirements required by Miss. R. Civ. P. 9(b) and this Court. Specifically, the Howards argue:

In fact, the Plaintiffs only make the conclusory general allegation that “the defendants” implied that the resident in question would receive certain care while at the facility. Plaintiffs have not identified when or where any representations were made, the identity of the person who heard any misrepresentations, or that any such statements were false, much less that statements were intentionally made with knowledge of their falsity.

We agree. In their complaints, the Plaintiffs simply allege the collective defendants (not each defendant specifically) misrepresented the qualitative and quantitative care and supervision they would receive, and made those misrepresentations to the Plaintiffs and their families. The complaint does not specify the date or locations the allegedly fraudulent statements were made. We find these general allegations and missing content fatal under the pleading standards of Rule 9(b). As such, the Plaintiffs’ claims of fraud against the Howards must be dismissed.

V. Whether the Howards, as Administrator and Licensee, May Be Held Liable for Breach of Fiduciary Duty.

¶ 22. Finally, the Howards assert that a fiduciary relationship, as a matter of law, cannot exist between nursing home patients and a nursing home’s administrator and licensee based solely on their positions as administrator and licensee. This Court has defined what type of relationship produces one with fiduciary duties:

[A] fiduciary duty exists where one person or institution assumes a trust relationship with another, such that the former, as a matter of choice or legal obligation, assumes the responsibility to act in the best interest of the latter, even to the detriment and peril of the best interests of the former.

Roman Catholic Diocese v. Morrison, 905 So.2d 1213, 1239 (Miss.2005). As we stated above, a licensee and administrator’s duties are owed to their employer and licensing agencies, not to nursing home patients. In Gray v. Beverly Enters.-Miss., Inc., 261 F.Supp.2d 652, 662-63 (S.D.Miss.2003), reversed on other grounds by Gray v. Beverly Enters.-Miss., Inc., 390 F.3d 400 (5th Cir.2004), the district court stated:

If the Court were to find a fiduciary relationship between Plaintiff and [the nursing home licensee and administrators], then a reasonable inference could be made that each and every employee of [the nursing home], from the janitorial staff who cleaned Plaintiff’s room to the chief executive officer who established policies and procedures for [the nursing home], owed a fiduciary duty to the Plaintiff. The [nursing home licensee and administrators] were primarily responsible for the management of [the nursing home], a responsibility that typically does not create a fiduciary duty.

We find as a matter of law that a fiduciary duty cannot exist simply because of the Howards’ roles as licensee and administrator; nor do we find a duty exists otherwise, as the Plaintiffs have failed to state facts giving rise to a fiduciary relationship between the Howards and Plaintiffs. The Plaintiffs provide little information about the relationship between the Howards and the Plaintiffs, other than asserting general claims that by the type of care the How-ards and the other defendants were providing, the Plaintiffs and their families held a “special confidence and trust which the Defendants accepted.”

CONCLUSION

¶ 23. We find the trial court improperly denied the Howards’ motion to dismiss the Plaintiffs’ claims against them. Based on this Court’s analysis, we find no common law duty is owed by a nursing home’s licensee or administrator to that nursing home’s patients. Furthermore, we find no language in our nursing home licensing statutes or regulations imposing such a duty. As to the Plaintiffs’ remaining claims, we find they also fail to state a claim. For the foregoing reasons, we reverse the orders of the trial court denying the Howards’ motions to dismiss, and we remand these cases to the trial court with directions that it (1) finally dismiss the plaintiffs’ complaints and motions against the Howards with prejudice for failure to state a claim upon which relief can be granted and (2) conduct further proceedings against the remaining defendants consistent with this opinion. The stay of proceedings in the trial court will expire upon the issuance of this Court’s mandate in these cases.

¶ 24. REVERSED AND REMANDED.

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

DIAZ, Justice,

Dissenting:

¶ 25. Because those entrusted with the care of the most vulnerable among us must be held to account for their negligence, I must dissent. In providing immunity to nursing home administrators and licensees the majority provides legal cover for those responsible for ensuring the health, safety, and basic human dignity of the aged and infirm. With this shield of immunity to protect them, many administrators and licensees will be tempted to allow the conditions in nursing homes to deteriorate.

¶ 26. The majority holds that nursing home administrators and licensees owe no duty to the patient. In so doing, the majority discards basic tenets of tort law. Instead, we should recognize that nursing home administrators and licensees owe a duty of reasonable care to their patients, and thus we would ensure that a reasonable level of care is provided to our loved ones who are unable to care for themselves.

¶ 27. Mississippi recognizes the doctrine of negligence per se, which provides that violation of a statute, regulation, or ordinance will support a cause of action in tort (1) where the plaintiff is within the class protected, and (2) the harm sustained is the type sought to be prevented. Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 795 (Miss.1995) (citing Boyer v. Tenn. Tom Constructors, 702 F.2d 609, 611 (5th Cir.1983)). See also Miss. Power & Light Co. v. Lumpkin, 725 So.2d 721 (Miss.1998); Byrd v. McGill, 478 So.2d 302 (1985); Haver v. Hinson, 385 So.2d 605 (Miss.1980); and U-Haul Co. v. White, 232 So.2d 705 (Miss.1970). In the present case, the statutory provisions vesting authority in the Mississippi Department of Health clearly state that the purpose is to protect the patient:

The purpose of this chapter is to protect and promote the public welfare by providing for the development, establishment and enforcement of certain standards in the maintenance and operation of institutions for the aged or infirm which will insure safe, sanitary and reasonably adequate care of individuals in such institutions.

Miss.Code Ann. § 43-11-3 (emphasis supplied). Additionally, “safe, sanitary and reasonably adequate care” is surely aimed at preventing the types of injuries sustained by the decedents. The alleged injuries include, among others, malnutrition, dehydration, weight loss, multiple falls, bone fractures, multiple bruises, multiple skin tears and lacerations, poor hygiene, urinary tract infections, contractures, physical abuse, and ultimately death. Because violation of a regulation can amount to negligence per se if the plaintiffs are able to prove a causal link between the breach and resulting injuries, I would affirm the circuit court’s orders denying the motions to dismiss and remand these cases to proceed on the merits.

¶ 28. The majority, however, refuses to recognize even a claim for simple negligence. It relies on Moore v. Mem’l Hosp., 825 So.2d 658 (Miss.2002), for the proposition that state pharmacy board regulations do not establish a legal duty of care. However, Moore simply holds that violation of internal licensing regulations does not • amount to negligence per se. The Court clearly states that the violation “may • serve as evidence of negligence.” Id. at 665. Because the Moore decision had previously extended the “learned.intermediary doctrine” to find that pharmacists owed no duty to warn, the Court had already disposed of the simple negligence claim for different reasons. Id. at 663-66.

¶ 29. Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 795 (Miss.1995), is more on point than the case relied on by the majority. In Palmer, we reversed a trial court’s order granting summary judgment for a hospital because the plaintiff was able to sufficiently demonstrate a causal link between a violation of the Minimum Standards of Operation for Mississippi Hospitals and the plaintiffs injuries. Id. The plaintiffs cause of action against the hospital was based on the allegation that the hospital violated the state regulations when it failed to require two surgeons to be present when surgery was performed. Id. at 795. In the present case, the plaintiffs allege that the defendants violated numerous provisions of the Minimum Standards of Operation for Mississippi Nursing Homes.

¶ 30. Despite the language of the statutes and regulations, the majority holds that nursing home administrators and licensees owe no duty to the patient. See Miss.Code Ann. § 73-17-5(a) (“administrator” defined) and Regulation 102.16 (“licensee” defined). According to the majority, “a licensee and administrator’s duties are owed to their employer and licensing agencies, not to nursing home patients.” For this proposition, it relies on a case from the Southern District which was completely overruled by the Fifth Circuit on appeal. Gray v. Beverly Enter.-Miss., Inc., 261 F.Supp.2d 652 (S.D.Miss.2003) (overruled by 390 F.3d 400 (5th Cir.2004)). The majority states that the district court decision was reversed on other grounds, but the Fifth Circuit opinion clearly reverses and remands all of the claims to state court, including breach of fiduciary duty. Id. at 411-12.

¶ 31. In remanding the case, the Fifth Circuit found that both the Minimum Standards and the Mississippi common law could support a claim against administrators and licensees of nursing homes. Id. The opinion provides an excellent examination of the common law duty of agents which provide a basis of liability against Defendants:

[I]n Turner v. Wilson, 620 So.2d 545, 548-49 (Miss.1993), the court stated that directors, officers, and agents may be liable for torts where they either participated in the act, authorized it or directed it, gave consent to an act, or even acquiesced in a tortious act that they knew of or “should have known of’ in the exercise of reasonable care.
Plaintiffs also point to numerous unreported district court decisions in Mississippi in which, under very similar circumstances ... allegations of failure to perform managerial duties, such as maintaining adequate records and supervising those members of the staff who handled the residents’ day-to-day care, were held sufficient to “afford a reasonable basis for imposing personal liability under Mississippi law.” at Estate of Bradley v. Grancare, Inc., 2003 U.S. Dist. LEXIS 24938, No.4:03CV93-P-B, at *5-6 (N.D.Miss. Aug. 18, 2003).
Plaintiffs cannot demonstrate hands-on contact by the defendants, but such activity does not seem required to impose personal liability under Mississippi law. One may easily be a direct participant in tortious conduct by 'merely authorizing or negligently failing to remedy misconduct by one’s subordinates.

390 F.3d at 409-10 (emphasis supplied).

¶ 32. The majority, however, does not even address these general principles of agency. It simply characterizes the finding of such a duty as an “expansion” and “duplicative” of the duty owed by the facility. These arguments ignore the well-settled rule that an agent may be liable for tortious conduct to both the principal and the third party. Holland v. Mayfield, 826 So.2d 664, 670 (Miss.1999) (“an agent who commits a tort is liable in both his representative capacity and in his individual capacity”) (citing American Fire Protection, Inc. v. Lewis, 653 So.2d 1387, 1391 (Miss.1995); Miss. Power & Light Co. v. Smith, 169 Miss. 447, 153 So. 376, 380 (1934) (“if both the agent and the master owe a duty to another, they may be held liable for a breach thereof jointly or severally”); and Mullican v. Meridian Light & Ry. Co., 121 Miss. 806, 83 So. 816, 819 (1920) (“the relation of agency does not exempt a person from liability for an injury to a third person resulting from his neglect of duty for which he would otherwise be liable.”)).

¶ 33. The majority also attempts to distinguish cases which have found that administrators and licensees owe a common law duty to patients; these distinctions are irrelevant and meaningless. I fail to see how there was “no discussion of administrator liability” in Beverly Enter.-Fla. Inc. v. Spilman, 661 So.2d 867, 873-74 (Fla. 5th DCA 1995), when the majority’s own quote reveals that the Florida Supreme Court found that the administrator’s inaction “exhibit[ed] a reckless disregard of human life.”

¶ 34. Moreover, a Florida appellate court recently reversed a directed verdict that had been issued in favor of the managing member of a nursing facility corporation. Estate of Canavan v. Nat’l Healthcare Corp., 889 So.2d 825 (Fla.Dist.Ct.App.2004). There defendant, like administrators and licensees under our state’s regulations, was responsible for implementing the facility’s policies and procedures. The court found that there was evidence by which a jury could have found that the defendant’s “elevation of profit over patient care was negligent.” Id. at 826.

¶ 35. The practical effect of the majority’s ruling today is to render nursing home licensees and administrators virtually immune from civil suit. The majority would require nothing short of an intentional tort against the patient before a court could find liability. To grant such protection to those entrusted with the care of our loved ones is simply untenable. As Justice Sharp wrote in his concurrence to Spil-man, “we should never cease to be shocked by Man’s inhumanity to Man ... a remedy must always be afforded.” 661 So.2d at 874 (Sharp, J., concurring).

GRAVES, J., JOINS THIS OPINION.

      . Claims for survival and wrongful death are asserted by Thead.

      . Miss.Code Ann. Section 73-17-5(a) (Rev. 2002) states ''[t]he term 'nursing home administrator’ or 'administrator' means any individual who is charged with the general administration of a nursing home, whether or not such individual has an ownership interest in such home and whether or not the functions and duties are shared with one or more individuals. 'General administration of a nursing home' shall mean the duties of administrative performance and the making of day-to-day decisions involved in the planning, organizing, directing and/or controlling of a nursing home.”

      . In the Rules, Regulations and Minimum Standards for institutions for the Aged or Infirm, which are issued by the Mississippi State Department of Health pursuant to Miss. Code Ann. section 43-11-13 (Rev.2002), defines a licensee as "upon whom rests the responsibility for the operation of the institution in compliance with these rules, regulations, and minimum standards.” (Regulation 102.16, as amended August 12, 2004).

      . The Plaintiffs also make the same assertion with regard to the Howards’ arguments against the Plaintiffs’ claims of fraud and breach of fiduciary duty. However, for the same reasoning, we find the Howards’ remaining arguments are properly before this Court.

      . The plaintiffs allege that the defendants violated the following regulations regarding resident care:
      120.02 Activities of daily living. Each resident shall receive assistance with activities of daily living to maintain the highest practicable well being. These shall include, but not be limited to:
      a. Bath, dressing and grooming;
      b. Transfer and ambulate;
      c. Good nutrition, personal and oral hygiene; and
      d. Toileting.
      120.08 Accidents. The facility shall ensure that the residents environment remains as free of accident hazards as possible, and adequate supervision shall be provided to prevent accidents. If an unexplained accident occurs, this injury must be investigated and reported to appropriate state agencies.
      120.09 Nutrition. Residents shall maintain acceptable parameters of nutritional status, such as body weight and protein levels, unless residents clinical condition indicate that this is unavoidable. All residents shall receive diets as orders by their physician or nurse practitioner. Residents identified with significant nutritional problems shall receive appropriate medical nutrition therapy based on current professional standards.
      120.10 Hydration. Each resident shall be provided sufficient fluid intake to maintain proper hydration and health.
      120.11 Special needs. Each resident with special needs shall receive proper treatment and care. These special needs shall include, but are not limited to injections, parenteral and enteral fluids; colostomy; uret-erostomy; ileostomy care; tracheostomy care; tracheal suction; respiratory care; foot care; and prostheses.


author: CARLSON, Justice,

text:
    MISSISSIPPI INSURANCE GUARANTY ASSOCIATION v. MS CASUALTY INSURANCE COMPANY and American Reliable Insurance Company, Inc.
    No. 2005-CA-01158-SCT.
    Supreme Court of Mississippi.
    Oct. 26, 2006.

      James D. Holland, Louis Glazier Baine, Jr., Robert S. Addison, Terry R. Levy, Jason Hood Strong, Jackson, attorneys for appellant.
    Kelly D. Simpkins, Walter D. Willson, Rosemary G. Durfey, Ridgeland, attorneys for appellees.
    Before WALLER, P.J., EASLEY and CARLSON, JJ.
   CARLSON, Justice,

for the Court.

¶ 1. Aggrieved by the Madison County Chancery Court’s grant of summary judgment in favor of MS Casualty Insurance Company and American Reliable Insurance Company, Inc., the Mississippi Insurance Guaranty Association appeals to us. Finding no reversible error, we affirm.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. MS Casualty Insurance Company (MS Casualty) is a Mississippi-based insurance company. It began issuing workers’ compensation insurance policies in 1993. American Reliable Insurance Company, Inc. (American Reliable) is an Arizona-based insurance company which also formerly issued workers’ compensation insurance policies. General Reinsurance Corporation (Gen Re) was the reinsurer of MS Casualty’s workers’ compensation policies from January 1, 1993, to December 31, 1995. American Reinsurance Company (Am Re) was the reinsurer of MS Casualty’s workers’ compensation policies effective January 1, 1996. Gen Re was the reinsurer of American Reliable’s workers’ compensation policies.

¶ 3. On September 28, 2000, American Reliable exited the workers’ compensation business by entering an “Assumption Reinsurance Agreement” (ARA) with Legion Insurance Company (Legion), a Pennsylvania insurance company. MS Casualty followed suit on September 29, 2000. The ARAs were approved by the Mississippi Department of Insurance. The ARA between MS Casualty and Legion retroactively transferred MS Casualty’s obligations under the policies to Legion as of January 1, 1993, through December 31, 2000. Also, the ARA between American Reliable and Legion retroactively transferred American Reliable’s obligations to Legion as of October 1, 1999, through December 31, 2000. MS Casualty and American Reliable ceded all outstanding net loss and voluntary unearned premium reserves to Legion. Gen Re and Am Re, the reinsurers, entered into assignment agreements which transferred to Legion all obligations they owed MS Casualty and American Reliable. As of January 1, 2001, Legion had sole responsibility to the policyholders and claimants.

¶ 4. Legion sent policyholders “Certificates of Assumption” stating that Legion would be responsible for any claims under the policies. Legion requested that all future claim requests be directed to Am-Fed Companies, its claims administrator, and directed that all future premiums be paid to Legion. The certificates also stated that Legion would be responsible for any future claims. Legion did not contact the claimants who were already receiving benefits under the MS Casualty and American Reliable policies.

¶ 5. Subsequently, Legion entered rehabilitation due to cash flow problems. The Pennsylvania Insurance Commissioner petitioned for liquidation of Legion, and on July 25, 2003, liquidation was ordered by the Commonwealth Court of Pennsylvania. The insurance commissioner was appointed as the statutory liquidator (Liquidator) and was responsible for making arrangements for continued payment of claims under Legion’s policies.

¶ 6. The Liquidator ordered that policyholders asserting a right to proceeds of a reinsurance agreement to which Legion was a party should file a petition to intervene with the court. Subsequently, the Liquidator filed an emergency application for stay pending appeal or confirmation of automatic stay .with respect to the portion of the court’s Order of Liquidation allowing direct access to reinsurance. Gen Re and Am Re were ordered to pay any monies they would have owed to Legion as reinsurance to the Liquidator.

¶ 7. Following the court’s entry of the Order of Liquidation, the Mississippi Insurance Guaranty Association (MIGA), by statutory authority, stepped into the shoes of Legion to protect the interests of Legion’s Mississippi policyholders and claimants. MIGA was statutorily created by the Mississippi Legislature to pay “eov-ered claims under direct insurance” when an insurer becomes insolvent.

¶ 8. After reviewing the claims made to Legion, MIGA decided that the claims were not “covered claims under direct insurance” within the meaning of the statute. MIGA requested MS Casualty and American Reliable to pay any claims made under the policies to avoid numerous multiparty lawsuits filed by the claimants. There were 181 claims at issue. Rather than having to deal with all of these potential lawsuits, MIGA requested MS Casualty and American Reliable to try one suit before a chancellor to decide if the claims were “covered claims under direct insurance.” MIGA agreed to reimburse MS Casualty and American Reliable for any claims the companies wrongly paid if a chancellor ordered MIGA to do so.

¶ 9. MS Casualty and American Reliable thereafter commenced suit against MIGA in the Madison County Chancery Court demanding (1) reimbursement of claims paid by MS Casualty and American Reliable, and (2) MIGA’s assumption of liability for future claims. The reinsurers, Gen Re and Am Re, were original parties to the suit, but they were dismissed by MS Casualty and American Reliable because Gen Re and Am Re were ordered to pay their monies to the Liquidator.

. ¶ 10. Chancellor William J. Lutz conducted a hearing on May 3, 2005, on the motion for summary judgment filed by MS Casualty and American Reliable. The chancellor concluded that (1) the ARAs constituted a novation between MS Casualty and American Reliable and Legion, which ceded to Legion all responsibilities previously assumed by MS Casualty and American Reliable; (2) the claims constituted covered claims according to the statute; (3) the policies assumed by Legion were direct insurance according to the statute; and, (4) the policyholders, and not the claimants themselves, were the only ones to whom notice had to be given concerning the ARA. The chancellor granted summary judgment in favor of MS Casualty and American Reliable and ordered MIGA to reimburse past claims and to assume payments of future claims.

¶ 11. Further, the chancellor recognized that the reinsurers, Gen Re and Am Re, were the insurance companies that should be liable for the claims. The rein-surers were obligated to pay the claims according to the reinsurance contracts; however, Gen Re and Am Re had already been ordered to pay that sum to the Liquidator. Gen Re and Am Re had refused MIGA’s demand that they pay MIGA directly inasmuch as this action would have resulted in double payment by Gen Re and Am Re. The chancellor denied MIGA’s motion to rejoin the reinsurers since it was the opinion of the chancellor that MS Casualty and American Reliable should never have been parties to the suit. The chancellor urged MIGA to sue Gen Re and Am Re if MIGA felt that the Liquidator would not cover the claims of the Mississippi claimants. The chancellor also denied MIGA’s motion to stay the grant of summary judgment for further discovery. The chancellor further ordered MIGA to immediately review the claims files to determine the specific dollar amount of reimbursement owed to MS Casualty and American Reliable.

¶ 12. MIGA did not immediately start paying the claims as the chancellor ordered. In a subsequent hearing on May 26, 2005, MIGA argued before the chancellor that some of the claims were from claimants who did not live in Mississippi and, thus, MIGA was not liable for those claims. The chancellor allowed MIGA extra time to review seven claims files and ordered MIGA to file a brief report concerning its opinion on liability as to those seven claims.

¶ 13. At the final hearing on June 8, 2005, the chancellor ruled that MIGA was liable for six of the seven contested nonresident claims. The chancellor made a detailed finding on the record as to why MIGA was or was not liable for each claim. The chancellor also denied MIGA’s motion for a full accounting of the funds of MS Casualty and American Reliable. Finally, the chancellor granted the motion to strike portions of the record considered redundant, as filed by MS Casualty and American Reliable.

¶ 14. It is from the chancellor’s grant of summary judgment in favor of MS Casualty and American Reliable that MIGA appeals to us.

DISCUSSION

¶ 15. This Court reviews a grant of summary judgment de novo. Richardson v. Norfolk Southern Ry., 923 So.2d 1002, 1007 (Miss.2006) (citing Leffler v. Sharp, 891 So.2d 152, 156 (Miss.2004)); Pitts v. Watkins, 905 So.2d 553, 555 (Miss.2005) (citing Aetna Cas. & Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996)). This Court shall consider “all the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made.” McDaniel v. Shaklee U.S., Inc., 807 So.2d 393, 395 (Miss.2001) (citing Lumberman’s Underwriting Alliance v. City of Rosedale, 727 So.2d 710, 712-13 (Miss.1998)). “If any triable issues of material fact exist, the lower court’s decision to grant summary judgment will be reversed.” Id. (citing Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983)).

¶ 16. Turning to the issues with which we are confronted today, this Court must decide (1) whether the Assumption Reinsurance Agreements (ARA’s) constituted a novation; (2) whether the claims are “covered claims under direct insurance;” (3) whether MIGA is liable for claims from nonresidents; and, (4) whether the chancellor abused his discretion in (a) denying MIGA’s motion to stay summary judgment to allow further discovery, (b) denying MIGA’s motion for a full accounting, and (c) granting MS Casualty’s and American Reliable’s motion to strike portions of the record.

I. WHETHER THE ASSUMPTION REINSURANCE AGREEMENTS BETWEEN MS CASUALTY AND AMERICAN RELIABLE AND LEGION CONSTITUTED A NO-VATION WHICH RELEASED MS CASUALTY AND AMERICAN RELIABLE FROM LIABILITY UNDER THE WORKERS’ COMPENSATION POLICIES.

¶ 17. We first address the issue of whether novation was accomplished by substituting Legion for MS Casualty and American Reliable in the insurance policies. “[A] novation may occur where the debt remains the same, but a new debtor is substituted. In such event, the original debtor is acquitted, his obligation is extinguished, and the creditor contends himself with the obligation of the second debtor.” Greenwood Leflore Hospital Com. v. Turner, 213 Miss. 200, 56 So.2d 496, 497 (1952); Adams v. Power, 48 Miss. 450 (1873). The parties must intend novation for novation to be accomplished. Morgan v. Jackson Ready-Mix Concrete, 247 Miss. 863, 157 So.2d 772, 780 (1963).

¶ 18. Aso, the creditor must assent to the novation. Greenwood Leflore Hospital, 56 So.2d at 498. In First American National Bank of Iuka v. Alcorn, Inc., 361 So.2d 481, 487-88 (Miss.1978), this Court held that assent may be implied. We stated:

The rule is also established that the release of one debtor and the substitution of another may be implied from the circumstances absent an express substitution. American Blakeslee Mfg. Co. v. Martin & Son, 128 Miss. 302, 91 So. 6 (Miss.1922). However, this requires substantial proof that the creditor impliedly accepted the new debtor in the place of the old and it must not appear that the creditor intended to hold both new and old debtor for the obligation. This determination is factual and necessary to an implied novation and release of the old debtor. American Blakeslee, supra.

Id.

¶ 19. Since no parties signed novation agreements, there is not express agreement. However, we agree with the chancellor and believe that novation was accomplished through implied assent. Legion agreed to be liable for any claims under the policies. MS Casualty and American Reliable transferred all of their reserves set aside to pay claims under the policies to Legion. All premiums were thereafter paid to Legion instead of MS Casualty and American Reliable. Therefore, in accordance with Greenwood Le-flore Hospital, the debt remained the same, but Legion was substituted for MS Casualty and American Reliable. Additionally, in accordance with Morgan, the parties obviously intended novation. The policyholders began paying their premiums to Legion after Legion sent the policyholders notice in the form of assumption certificates. None of the policyholders protested; but instead, they paid their premiums to Legion, which continued to pay all current claims that MS Casualty and American Reliable had previously been paying. Through their actions, the parties no doubt intended for Legion to be liable for any claims.

¶ 20. However, MIGA contends that, in accordance with First American National Bank, the policyholders did not impliedly accept novation because the language of the assumption certificates is vague. Further, MIGA argues that the injured claimants also had vested rights according to Mississippi’s workers’ compensation laws. MIGA therefore argues that not only did the policyholders not impliedly assent to novation, but the claimants’ assent was required as well. The chancellor disagreed. In his final judgment entered on June 8, 2005, the chancellor stated, inter alia:

5. The assumption reinsurance agreements, whether a novation is required or not, were a novation. The certificates of assumption sent by Legion to the policyholders specifically stated:
The effect of this agreement on you is that Legion Insurance Company is now the insurer of your policy and is responsible for paying all claims due under your policy.
In the Court’s opinion, the above language was clear as this transaction does not deal with claimants who may be very ignorant of what these things mean, but instead with businessmen who are the actual insureds. The actual claimants have absolutely nothing to do with who provides these insurance policies. The Court finds that the insured (sic) accepted by not canceling the insurance or voicing any concerns after they received the notices. The insureds made payments directly to Legion and filed claims with Legion.

We agree with the chancellor. The language of the certificates was clear; therefore, implied consent from the policyholders can be assumed. Additionally, MIGA contends that the claimants have vested workers’ compensation rights, but there is no citation to statutory authority or case law to prove its point. We have previously addressed a party’s failure to support argument with citation to authority:

This Court routinely holds an appellants’s failure to cite to any legal authority to support [an] argument will procedurally bar that issue from being considered on appeal. Carter v. Miss. Dep’t of Corr., 860 So.2d 1187, 1193 (Miss.2003) (citing McClain v. State, 625 So.2d 774, 781 (Miss.1993)). Because [the appellant] failed to support this allegation of error with any legal authority, we find [the appellant] is procedurally barred from having this Court consider this issue on appeal.

In re Adoption of a Minor Child, 931 So.2d 566, 578 (Miss.2006). We find that the policyholders are the only parties who needed to assent to novation. Thus, assent can be implied and novation occurred.

II. WHETHER THE ASSUMPTION REINSURANCE AGREEMENTS BETWEEN MS CASUALTY AND AMERICAN RELIABLE AND LEGION CONSTITUTE DIRECT INSURANCE.

¶ 21. We next address whether the assumption reinsurance agreements constitute direct insurance. According to Miss. Code Ann. Section 83-23-105, MIGA is only responsible for claims stemming from direct insurance and not reinsurance.

¶ 22. The contracts between Legion and MS Casualty and American Reliable were titled “assumption reinsurance agreements.” However, this phrase is misleading. There is no precedent from this Court that defines direct insurance. However, the United States Supreme Court has stated that:

Reinsurance comes in two basic types, assumption reinsurance and indemnity reinsurance. In the case of assumption reinsurance, the reinsurer steps into the shoes of the ceding company with respect to the reinsured policy, assuming all its liabilities and its responsibility to maintain required reserves against potential claims. The assumption reinsurer thereafter receives all premiums directly and becomes directly liable to the holders of the policies it has reinsured. In indemnity reinsurance, which is at issue in this case, it is the ceding company that remains directly liable to its policy-holders, and that continues to pay claims and collect premiums. The indemnity reinsurer assumes no direct liability to the policyholders. Instead, it agrees to indemnify, or reimburse, the ceding company for a specified percentage of the claims and expenses attributable to the risks that have been rein-sured, and the ceding company turns over to it a like percentage of the premiums generated by the insurance of those risks.

Colonial Am. Life Ins. Co. v. Commissioner, 491 U.S. 244, 247, 109 S.Ct. 2408, 2411, 105 L.Ed.2d 199, 207 (1989).

¶ 23. The agreements are clearly direct insurance. Legion stepped into the shoes of MS Casualty and American Reliable. None of the terms and conditions of the contracts changed; but instead, the names of the parties were simply substituted. The reserves were transferred to Legion, and the policyholders began paying premiums to Legion. The risk was entirely upon Legion; therefore Legion was directly liable. Thus, we find that the agreements constituted direct insurance rather than reinsurance.

III. WHETHER THE CLAIMS ARE COVERED CLAIMS.

¶ 24. Next, we must decide whether the claims at issue are “covered claims.” A covered claim is defined as:

“Covered claim” means an unpaid claim, including one of unearned premiums, which arises out of and is within the coverage and not in excess of the applicable limits of an insurance policy to which this article applies issued by an insurer, if such insurer becomes an insolvent insurer and (1) the claimant or insured is a resident of this state at the time of the insured event, provided that for entities other than an individual, the residence of a claimant or insured is the state in which its principal place of business is located at the time of the insured event; or (2) the property from which the claim arises is permanently located in this state. “Covered claim” shall not include any amount awarded as punitive or exemplary damages; or sought as a return of premium under any retrospective rating plan; or due any reinsurer, insurer, insurance pool, or underwriting association, as subrogation recoveries or otherwise and shall preclude recovery thereof from the insured of any insolvent carrier to the extent of the policy limits.

Miss.Code Ann. § 83-23-109® (emphasis added). MIGA, by statute, is only permitted to pay “covered claims.” Miss. Ins. Guar. Ass’n v. Byars, 614 So.2d 959, 963 (Miss.1993). MIGA argues that novation never occurred, which rendered MS Casualty and American Reliable reinsurers to Legion based upon the plain language of the title of the Assumption Reinsurance Agreements. MIGA argues that because MS Casualty and American Reliable are still solvent, they are responsible for paying the claims under the policies. Further, MIGA argues that it cannot pay an insurance company based upon the plain language of Miss.Code Ann. § 83-23-109(f); but instead, it can only pay policyholders or claimants.

¶25. MIGA’s argument is misplaced. The chancellor correctly perceived the issue as being whether the claims made to Legion were covered claims stemming from direct insurance. The claims were made to Legion at the time of insolvency, and Legion is the direct insurer because novation occurred. This has nothing to do with MS Casualty and American Reliable — the claims were not made to those insurance companies, and they are not reinsurers.

¶ 26. MIGA is attempting to avoid reimbursing MS Casualty and American Reliable based on a misinterpretation of the applicable statute. MIGA agreed to allow the chancellor to decide whether the claims made to Legion were “covered claims” stemming from “direct insurance.” MIGA requested MS Casualty and American Reliable to pay the claims to avoid multiple lawsuits, and if the chancellor ruled in the insurance companies’ favor, they would be reimbursed by MIGA. However, MIGA now claims that, according to statute, it cannot make any payments to insurance companies. However, the chancellor ruled that MIGA was responsible for reimbursing MS Casualty and American Rehable for the claims it would have owed under the statute because it was liable for the claims to Legion. Thus, the chancellor did not err inasmuch as his decision does not conflict with the statute.

IV. WHETHER MIGA IS LIABLE FOR CLAIMS FROM NONRESIDENTS.

¶27. We now address whether the claims of non-residents may be covered by statute. MIGA argues that it is not liable for any claim where the claimant is not a resident of Mississippi, while MS Casualty and American Reliable argue that the plain language of the statute states in part that either the claimant or the policyholder must be a resident.

“Covered claim” means an unpaid claim, including one of unearned premiums, which arises out of and is within the coverage and not in excess of the applicable limits of an insurance policy to which this article applies issued by an insurer, if such insurer becomes an insolvent insurer and (1) the claimant or insured is a resident of this state at the time of the insured event, provided that for entities other than an individual, the residence of a claimant or insured is the state in which its principal place of business is located at the time of the insured event; or (2) the property from which the claim arises is permanently located in this state.

Miss.Code Ann. § 83-23-109(f) (emphasis added); see also Miss. Ins. Guar. Ass’n. v. Byars, 614 So.2d 959 (Miss.1993). The statute clearly states that either the claimant or the policyholder must be a resident of Mississippi. There is one more step nonresident claimants must make. Miss. Code Ann. § 83-23-123(2) (Rev.1999) provides:

(2) Any person having a claim which may be recovered under more than one (1) insurance guaranty association or its equivalent shall seek recovery first from the association of the place of residence of the insured, except that if it is a first party claim for damage to property with a permanent location, he shall seek recovery first from the association of the location of the property, and if it is a workmen’s compensation claim, he shall seek recovery first from the association of the residence of the claimant. Any recovery under this article shall be reduced by the amount of recovery from any other insurance guaranty association or its equivalent.

(emphasis added). Thus, MIGA is liable for claims to Legion from nonresident claimants whose policyholders were located in Mississippi at the time of the insured event if those claimants first tried to seek recovery in their home states and were denied. The chancellor made a detailed finding on the record of each of the seven nonresident claims in dispute.

I have reviewed these. And let me give you my analysis per case.
Miguel Olivares.... He is a resident of Chamblee, Georgia. His employer is All Points Construction of Caldonia, Mississippi. There was an application to the Georgia Guaranty Fund and it was denied. And, as per the statute, since the company, the policy holder of the insured, is in Mississippi, then that is a claim that MIGA must pay. They have followed the statutory scheme.
Terry Pellegrin, resident of Theodore, Alabama. His employer, A & B Electric Company, is in Pascagoula, Mississippi. They applied to the Alabama Insurance Guaranty Association and were denied. Once again, following the statutory scheme since A & B Electric is in Mississippi, then that is MIGA’s responsibility.
Cathy Ryner. Now a resident of Tennessee, we’re convinced. We just couldn’t determine which town in Tennessee. Jackie’s International, a Madison, Mississippi business. Applied to Tennessee Insurance Guaranty Association and denied. So, they come under the statutory scheme and MIGA is liable.
Phillip Stockman. Residence, Vernon, Alabama. Master Craft Builders, Inc. of Booneville, Mississippi. The policyholder applied to Alabama Insurance Guaranty Association and was denied. Once again, coming within the statutory scheme. MIGA is liable.
Anthony Wallace. Residence, Eufala, Alabama. Employer, Wallace Amusement Company, Columbus, Mississippi. Applied to Alabama Insurance Guaranty and denied. Once again, coming within Mississippi statutory scheme. MIGA is liable. Now, there is a comment here about a possible girlfriend in West, Mississippi, but I don’t think it really matters. The fact is he was treated as though he was an Alabama resident. And that is what seemed to be the case and statutory scheme took care of it. Now, Marvin Gonzales. Residence, Grand Bay, Alabama. Employer, New Palace Casino, Biloxi, Mississippi. Applied to the Alabama Insurance Guaranty Association and was denied. Therefore, comes within the statutory scheme and MIGA is liable.
Now, on Louis Curtis Matthews. The vast majority of information that we had on this was that this guy was — Mr. Matthews was a resident, in fact of 1896 Dean, Memphis, Tennessee. A & B Electric is a Meridian, Mississippi Company, but there was never an application to Tennessee for relief. So, the Court ■holds that the Louis Curtis Matthews claim is not a liability of MIGA.

It is clear from the record that the chancellor did not err in that he unquestionably adhered to the statutory scheme of recovery.

V. WHETHER THE CHANCELLOR ABUSED HIS DISCRETION IN DENYING MIGA’S MOTION TO STAY CONSIDERATION OF SUMMARY JUDGMENT FOR ADDITIONAL DISCOVERY.

¶ 28. This Court will review a trial judge’s decisions concerning motions related to discovery for abuse of discretion. “[T]he decision to ... order further discovery rests within the sound discretion of the trial judge and will not be reversed unless his decision can be characterized as an abuse of discretion.” Marx v. Truck Renting & Leasing Assocs., 520 So.2d 1333, 1344 (Miss.1987) (citing Fontenot v. Upjohn Co., 780 F.2d 1190, 1193 (5th Cir.1986)). The issue before us is whether the chancellor abused his discretion in denying MIGA’s Rule 56(f) motion to stay the ruling of summary judgment for additional discovery. Rule 56(f) states:

Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such order as is just.

Miss. R. Civ. P. 56(f). MS Casualty and American Reliable argue that MIGA filed its Rule 56(f) motion merely to delay payment of the judgment, while MIGA argues that the chancellor abused his discretion in granting the motion because there were material issues of fact in dispute. Specifically, MIGA claims that various facts relating to the issues of whether there was a novation, whether the claims were “covered claims,” and whether the policies held by Legion constituted “direct insurance” were not present in the record. Further, MIGA claims that more facts are needed concerning dates of claims, dates of contract terminations, and amounts of reinsurance payments paid from Legion, Gen Re, and Am Re to MS Casualty and American Reliable. MIGA’s Interrogatory responses answer the payment question:

¶ 29. MS Casualty and American Reliable clearly stated that they had not received any money from Legion or the rein-surers, Gen Re and Am Re. The amounts of premiums paid to Legion by policyholders and the claim dates are stated in the record. The contracts between MS Casualty and American Reliable ended with the assumption of the policies by Legion and with Gen Re and Am Re entering into new reinsurance agreements with Legion.

¶ 30. The record clearly demonstrates that MS Casualty and American Reliable had not received payment from any source, and all relevant dates are present in the record. The chancellor did not abuse his discretion in denying the motion.

VI. WHETHER THE CHANCELLOR ABUSED HIS DISCRETION IN DENYING MIGA’S MOTION FOR A FULL ACCOUNTING.

¶ 31. MIGA file a motion for an accounting of the funds of MS Casualty and American Reliable. MIGA presented no evidence that MS Casualty or American Reliable ever received funds that rightfully belonged to Legion, as revealed in the answers to Interrogatory Nos. 4, 12, and 13. Furthermore, MIGA has not produced any evidence that either MS Casualty or American Reliable were dishonest in presenting their figures. The record is complete, and the chancellor did not abuse his discretion in denying MIGA’s motion for a full accounting.

VII. WHETHER THE CHANCELLOR ABUSED HIS DISCRETION IN GRANTING THE MOTION OF MS CASUALTY AND AMERICAN RELIABLE TO STRIKE PORTIONS OF THE RECORD.

¶ 32. Finally, we must decide whether the chancellor erred in granting the motion of MS Casualty and American Reliable to strike portions of MIGA’s claim review. We review a trial judge’s decision on whether to strike portions of the record for abuse of discretion. See Bowie v. Montfort Jones Mem’l Hosp., 861 So.2d 1037, 1042 (Miss.2003); see also Kilpatrick v. Miss. Baptist Med. Ctr., 461 So.2d 765, 767-68 (Miss.1984).

¶ 33. The chancellor conducted three hearings in this case. During the second hearing, the chancellor allowed MIGA to inspect the files of seven claimants whose residency was in dispute. The chancellor asked MIGA to file a brief report detailing the residency of those seven claimants. At the third hearing, the chancellor made a detailed finding on the record stating that MIGA was liable for six of those seven claimants based upon the report.

¶ 34. The chancellor granted the motion of MS Casualty and American Reliable to strike portions of the report. MS Casualty and American Reliable argue that those portions were redundant or brought up new issues not raised before summary judgment was granted. MIGA ignored the chancellor’s instructions. The chancellor stated in no uncertain terms:

[W]e’re not going to come back here and reargue anything... .Get your bean counters to look at these files.
Well, the hearing is going to be — all the hearing is going
to be, and that’s going to be it, is each one of these files, that you say should be exempted, you just come in and show me why. And I want some prior notice on it. I want something written, very brief.

Instead of following the chancellor’s instructions, MIGA filed a report that was nearly 400 pages long. The report contained information that, as MIGA admits in its brief to this Court, concerned issues other than determining whether MIGA was liable for the claims of the seven nonresidents. “Our trial judges ... have a right to expect compliance with their orders, and when parties and/or attorneys fail to adhere to the provisions of these orders, they do so at their own peril.” Bowie, 861 So.2d at 1042. MIGA disobeyed the chancellor. MIGA gave redundant answers and more information than the chancellor said would be allowed. Therefore, MIGA acted at its own peril, and the chancellor did not abuse his discretion in striking the record.

CONCLUSION

¶ 35. The chancellor did not err in finding that the Assumption Reinsurance Agreements clearly constituted a novation, thereby transferring all risk from MS Casualty and American Reliable to Legion. The chancellor likewise did not err in finding that the claims at issue were “covered claims under direct insurance,” and that, therefore, MIGA was responsible for paying those claims and was required to reimburse MS Casualty and American Reliable. Additionally the chancellor did not err in finding that MIGA was responsible for the claims of six of the seven nonresidents. Finally, the chancellor did not abuse his discretion in denying MIGA’s motion to stay summary judgment for additional discovery, denying MIGA’s motion for a full accounting, or granting the motion of MS Casualty and American Reliable to strike portions of the record.

¶ 36. For the reasons stated, we affirm the final judgment of the Chancery Court of Madison County.

¶ 37. AFFIRMED.

SMITH, C.J., WALLER, P.J., DIAZ, EASLEY, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR. COBB, P.J., NOT PARTICIPATING.

      . The chancellor held a total of three hearings on this matter.

      . MIGA was ordered to reimburse MS Casualty the sum of $3,371,562.30 and American Reliable the sum of $213,426.89.

      . Throughout the first hearing on this matter, the chancellor repeatedly stressed that the reinsurers, Gen Re and Am Re, had responsibility for paying the claims. When the chancellor granted summary judgment, he offered to assist MIGA in bringing Gen Re and Am Re before the court if Mississippi policyholders and claimants did not receive appropriate relief from the Liquidator.

      . Instead of a brief report, MIGA filed a report that was nearly 400 pages long. This report concerned issues beyond whether MIGA was liable for the claims of the seven nonresidents.

      . The chancellor struck pages 2-10 of the nearly 400 page report submitted by MIGA that went beyond the scope of the subject of &e claims of the nonresidents.