author: RANDOLPH, Justice,

text:
    Charles PRUITT and Catherine Elizabeth Pruitt v. HANCOCK MEDICAL CENTER.
    No. 2005-CA-00132-SCT.
    Supreme Court of Mississippi.
    Nov. 16, 2006.
    Jennifer P. Burkes, Gulfport, attorney for appellants.
    Patrick W. Kirby, Gulfport, attorney for appellee.
    Before COBB, P.J., DIAZ and RANDOLPH, JJ.
   RANDOLPH, Justice,

for the Court.

¶ 1. The complaint of Charles and Catherine Elizabeth Pruitt (“Pruitts”) alleges that on April 9, 2002, Charles suffered third-degree burns during knee surgery at Hancock Medical Center (“HMC”). However, their Notice of Claim letter alleges the injury occurred on April 11, 2002, and the nature of the injury was discovered the following day, April 12, 2002.

¶ 2. On August 21, 2002, the Pruitts filed a voluntary petition for Chapter 7 bankruptcy, and the bankruptcy court entered an order giving notice of bankruptcy and instituting an automatic stay against “certain acts and proceedings against the debt- or and his property ... as provided in 11 U.S.C. § 362(a).” In “Schedule B — Personal Property,” filed on September 9, 2002, the Pruitts checked “None” for “20. Other contingent and unliquidated claims of every nature, including tax refunds, counterclaims of the debtor, and rights to setoff claims.” In short, no reference was made to any alleged cause of action or claim against HMC. However, HMC was listed under “Schedule F — Creditors Holding Unsecured Nonpriority Claims” for “hospital services” totaling $7,456.18. The appointed trustee of the Pruitts’ bankruptcy estate was C. Thomas Anderson.

¶ 3. On December 19, 2002, the bankruptcy court granted the Pruitts a discharge of debt under 11 U.S.C. § 727, approved the trustee’s report of no distribution, discharged C. Thomas Anderson from his trust, and closed the bankruptcy estate.

¶ 4. Thirty-three (33) days later, the Pruitts sent a “Notice of Claim” letter to HMC. The notice was authored by the same attorney who represented the Pruitts in the bankruptcy proceedings. Following denial of their claim, the Pruitts filed a complaint alleging that “[HMC’s] breaches of the standard of care were a proximate cause or proximate contributing cause to Charles Pruitt’s injuries and damages[,]” along with a separate allegation of loss of consortium. Subsequently, HMC was granted a stay of proceedings due to the insolvency of its insurer.

¶ 5. Ultimately, HMC filed its answer which included an affirmative defense that “the Plaintiffs herein are the improper parties and have no standing to bring this action[,]” and filed a motion for summary judgment. HMC specifically alleged that:

3. [The Pruitts] declared, under penalty of perjury, in their bankruptcy petition, that they had no contingent or unliquidated claim of any nature.
4. Accordingly, [the Pruitts] have judicially admitted that they have suffered no damages in this matter.
5. Because [the Pruitts] cannot prove damages, an essential element of their claim ... HMC is entitled to judgment as a matter of law.
6. [The Pruitts] lack standing to sue because this action became the property of the bankruptcy estate at the time of the bankruptcy filing and can only be prosecuted by the trustee of the bankruptcy estate who is the real party in interest.

The Pruitts filed a “Motion for Additional Time Pursuant to Rule 56(f) to Respond to Motion for Summary Judgment.” They argued that:

5. At this time, the Pruitts’ attorney for the bankruptcy proceeding ... Olen Anderson, is in the process of filing the necessary paperwork to reopen the Chapter 7 bankruptcy proceeding. The Trustee, Tom Anderson, is aware [that] this proceeding will be reopened. Once this has occurred, the necessary pleadings will be filed in both Bankruptcy Court and in this Court, including the Amended Schedule listing this case as a contingent or unliquidated claim....
8. For this reason, [the Pruitts] respectfully request that they be granted additional time pursuant to Rule 56(f) to permit the Bankruptcy Court to rule on the Plaintiffs’ amendments to their schedule of unliquidated or contingent claims. At that time, the Plaintiffs will be in a position to respond to the Defendant’s Motion for Summary Judgment.

In an affidavit attached to the Pruitts’ motion, counsel stated “[i]t is anticipated that the Bankruptcy Court will allow the Pruitts to amend their schedule of unliqui-dated or contingent claims. At that time, the Defendant’s argument will be moot and there will be no basis for summary judgment.” In response to the Pruitts’ motion, HMC reiterated that “[t]he instant case, having accrued on April 9, 2002, could have been raised by the Plaintiffs as of the August 21, 2002 commencement of their bankruptcy proceeding and, therefore, constitutes property of the bankruptcy estate.” On March 1, 2004, HMC filed an “Amended Motion to Dismiss Pursuant to Rule 12(b)(1) and Motion for Summary Judgment.” HMC syllogistically contended that:

5. If a plaintiff lacks standing, a court is without subject matter jurisdiction.
6. If a court lacks subject matter jurisdiction, it must dismiss the action.
7. While [the Pruitts] lack standing to assert this claim and this Court therefore lacks subject matter jurisdiction, should this Court deny HMC’s Motion to Dismiss pursuant to Rule 12(b)(1), HMC is entitled to summary judgment on the grounds that [the Pruitts] cannot prove damages, an essential element of their claim.

¶ 6. On March 11, 2004, the bankruptcy court entered an order reopening the Pruitts’ bankruptcy estate and allowing amendment to “Schedule B — Personal Property.” Additionally, the bankruptcy court ordered “that the Office of Trustee shall appoint a Trustee to administer the bankruptcy estate accordingly.” On March 16, 2004, the Pruitts filed their amended “Schedule B — Personal Property” listing “Charles Pruitt and Catherine Elizabeth Pruitt v. Hancock Medical Center and John Doe Defendants, A-D; Hancock County Circuit Court, Civil Action No. 03-0289....” Furthermore, the affidavit of the Pruitts’ former counsel stated “[a]t this time, a Trustee has not been appointed. Once a Trustee is appointed, I will ask him to seek to Amend the Complaint to name himself as the Plaintiff.”

¶ 7. On March 18, 2004, the Pruitts filed their response to the motion for summary judgment. They argued:

2. At the time [the Pruitts] filed this Complaint, their bankruptcy had been discharged. [The Pruitts] were therefore the proper parties to file this claim to ensure that all statute of limitations were met....
5. ‘Schedule B — Personal Property’ as it exists in the re-opened Bankruptcy case, clearly lists [the Pruitts] claim against [HMC] as a contingent and un-liquidated claim.
6. For this reason, [HMC’s] Motion for Summary Judgment is moot and without merit.

In their response to the motion to dismiss, the Pruitts contended:

[HMC’s] objection to [the Pruitts’] standing, or lack of being ‘real party in interest’ was first filed on February 27, 2004. At this time, a Trustee has not even been appointed in Bankruptcy Court. This Court should, therefore, deny the Defendant’s Motion to Dismiss to allow time for a Trustee to actually be appointed, and time for the Trustee to petition this Court. See Wieburg v. GTE Southwest Inc., 272 F.2d[3d] 302 (5th Cir.2001)....

In reply, HMC argued that “Rule 17(a) does not contemplate allowing a party that completely lacks standing to stand in the place of a proper party until the proper party can be found. Such an interpretation of Rule 17(a) would render the doctrine of standing meaningless .... [the Pruitts] never reacquired standing to pursue this action.”

¶ 8. At the March 19, 2004 motion hearing, both parties agreed that “if this motion were granted to dismiss ... the bankruptcy trustee on an amended petition of this contingent asset would be ... time barred, from prosecuting this claim.” Four months later, the trustee had not made an appearance, and on July 19, 2004, the circuit court granted HMC’s motion to dismiss and dismissed the action without prejudice.

¶ 9. The circuit court determined that “[t]his cause of action was a contingent claim at the time of the bankruptcy filing and therefore property of the bankruptcy estate.... This is true even if the action has not been formally filed.” As such, “[w]hen a cause of action is property of the bankruptcy estate, the bankruptcy trustee has ‘exclusive standing’ to assert the claim. In re Educators Group Health Trust, 25 F.3d [... at] 1284 [...]. [The Pruitts] did not have standing to assert this claim.” The Pruitts then filed their notice of appeal.

ISSUES

¶ 10. The parties present the following two issues:

(1) Whether the Pruitts had standing to assert a medical malpractice claim in state court.
(2) Whether the trial court erred in dismissing the case before a Bankruptcy Trustee had been appointed and could petition the Court for appropriate relief.

However, the trial court never ruled on Issue (2), and neither shall this Court, as the ruling on Issue (1) moots any further discussion.

STANDARD OF REVIEW

¶ 11. ‘When considering a motion to dismiss, this Court’s standard of review is de novo.” Scaggs v. GPCH-GP, Inc., 931 So.2d 1274, 1275 (Miss.2006) (emphasis added).

ANALYSIS

I. Whether the Pruitts had standing to assert a medical malpractice claim in state court.

¶ 12. The Pruitts insist that “at the time the Complaint was filed ... there was no bankruptcy estate and there was no trustee.” As such, they contend that they had standing to assert their claim because “[a ] t the time of the institution of action ... [the Pruitts] were the only parties who had any existent actionable interest in this proceeding.”

¶ 13. In response, HMC argues that “[t]he instant case, having accrued on April 9, 2002, could have been raised by the Plaintiffs as of the August 21, 2002 commencement of their bankruptcy proceedings and, therefore, constitutes property of the bankruptcy estate. 11 U.S.C. Section 541(a)(1).” Moreover, HMC insists that the cause of action “remains property of the estate to this day.” Therefore, HMC asserts that as “[t]he bankruptcy trustee has ‘exclusive’ standing to bring this action,” the Pruitts “cannot have standing even under the most liberal interpretation.” HMC concludes that “[d]ue to the Pruitts’ lack of standing to bring the present action, this Court does not have subject matter jurisdiction and this action must be dismissed.”

¶ 14. As this case requires the analysis of bankruptcy law and federal statutes, we analyze this issue under federal law. A lack of standing “robs the court of jurisdiction to hear the case.” McNair v. United States Postal Service, 768 F.2d 730, 737 (5th Cir.1985). “[T]he filing of a bankruptcy petition creates a bankruptcy estate.” Lawrence v. Jackson Mack Sales, Inc., 837 F.Supp. 771, 779 (S.D.Miss.1992). The bankruptcy estate “is comprised of all the following property, wherever located and by whomever held: (1) Except as provided in subsections (b) and (c)(2) of this section, all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1) (emphasis added). See also Louisiana World Exposition v. Fed. Ins. Co., 858 F.2d 233, 245 (5th Cir.1988) (“[The bankruptcy] estate is comprised of all the property listed under section 541, wherever located and by whomever held, including ‘all legal or equitable interests of the debt- or in property as of the commencement of the case.’ ... The scope of the term ‘property of the estate’ is very broad.”). Regarding causes of action, “[c]ourts have uniformly held that the phrase ‘legal or equitable interest’ encompasses [them].” Lawrence, 837 F.Supp. at 779 (citations omitted). See also In re Educators Group Health Trust, 25 F.3d 1281, 1283 (5th Cir.1994); Louisiana World, 858 F.2d at 245 (“Section 541(a)(l)’s reference to ‘all legal or equitable interests of the debtor in property’ includes causes of action belonging to the debtor at the time the case is commenced.”). Moreover:

[clauses of action need not be formally filed prior to the commencement of a bankruptcy estate to become property of the bankruptcy estate.... Accordingly, a cause of action belonging to a debtor that existed at the time of the filing of a bankruptcy petition becomes property of the bankruptcy estate and may only be prosecuted by the trustee of the bankruptcy estate, the real party in interest under Rule 17(a) of the Federal Rules of Civil Procedure.

Lawrence, 837 F.Supp. at 779 (citations omitted). See also Educators Group, 25 F.3d at 1286 (“[i]t is well-established that the bankruptcy estate succeeds to the causes of action which the debtor could have brought as of the commencement of the case, subject to any defenses the debt- or may have faced.”) (emphasis added).

¶ 15. This Court concludes that the Pruitts’ cause of action accrued prior to the filing of the Pruitts’ voluntary petition for Chapter 7 bankruptcy on August 21, 2002. As this Court finds that the cause of action existed at the time of filing the bankruptcy petition, the cause of action became property of the bankruptcy estate under 11 U.S.C. § 541(a)(1).

¶ 16. “If a cause of action belongs to the [bankruptcy] estate, then the trustee has exclusive standing to assert the claim.” Educators Group, 25 F.3d at 1284 (emphasis added). See also Parker v. Wendy’s Int’l, Inc., 365 F.3d 1268, 1272 (11th Cir.2004) (“a trustee, as the representative of the bankruptcy estate, is the proper party in interest, and is the only party with standing to prosecute causes of action belonging to the estate.”); Bauer v. Commerce Union Bank, 859 F.2d 438, 441 (6th Cir.1988) (“ ‘It is well-settled that the right to pursue causes of action formerly belonging to the debtor — a form of property “under the Bankruptcy Code” — -vests in the trustee for the benefit of the estate.’ Jefferson v. Mississippi Gulf Coast YMCA, 73 B.R. 179, 181-82 (S.D.Miss.1986). The debtor has no standing to pursue such causes of action.”).

¶ 17. Such “exclusive standing” exists even when the cause of action was not disclosed on the schedules of assets filed under Chapter 7. In Parker, the Eleventh Circuit stated:

[o]nce an asset becomes part of the bankruptcy estate, all rights held by the debtor in the asset are extinguished unless the asset is abandoned back to the debtor pursuant to § 55k of the Bankruptcy Code. See 11 U.S.C. § 55k(a)-(c). At the close of the bankruptcy case, property of the estate that is not abandoned under § 55k and that is not administered in the bankruptcy proceedings remains the property of the estate. 11 U.S.C. § 55k(d). Failure to list an interest on a bankruptcy schedule leaves that interest in the bankruptcy estate.

365 F.3d at 1272. See also 11 U.S.C. § 554(d) (property of the bankruptcy estate “that is not abandoned under this section and that is not administered in the case remains property of the estate.”); Stein v. United Artists Corp., 691 F.2d 885, 891 (9th Cir.1982) (“[e]ourts ... generally have not permitted parties asserting title to unlisted causes of action to enforce the claim, because they cannot demonstrate abandonment by the trustee.”). The rationale, according to the United States Supreme Court in First National Bank of Jacksboro v. Lasater, 196 U.S. 115, 25 S.Ct. 206, 49 L.Ed. 408 (1905), is that:

[i]t cannot be that a bankrupt, by omitting to schedule and withholding from his trustee all knowledge of certain property, can, after his estate in bankruptcy has been finally closed up, immediately thereafter assert title to the property on the ground that the trustee had never taken any action in respect to it. If the claim was of value ... it was something to which the creditors were entitled, and this bankrupt could not, by withholding knowledge of its existence, obtain a release from his debts and still assert title to the property.

Id. at 119, 25 S.Ct. 206.

¶ 18. This Court finds that the cause of action at issue, even though originally unscheduled, remains the property of the bankruptcy estate. See Parker, 365 F.3d at 1272. As property of the bankruptcy estate, controlling federal law mandates that the bankruptcy trustee has “exclusive standing to assert the claim.” Educators Group, 25 F.3d at 1284 (emphasis added). Accordingly, the circuit court correctly determined that the Pruitts lack standing to assert the claim.

CONCLUSION

¶ 19. Because the Pruitts lacked standing to assert this claim, this Court affirms the circuit court’s judgment.

¶ 20. AFFIRMED.

SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, CARLSON AND DICKINSON, JJ., CONCUR. DIAZ, J., CONCURS IN RESULT ONLY. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Present counsel for the Pruitts did not enter her appearance as counsel of record until September 2, 2003.

        . This is a major point of contention between the parties. HMC insists that C. Thomas Anderson was reappointed as trustee of the bankruptcy estate on March 16, 2004, but has failed to make any appearance in this matter. At the March 19, 2004, motion hearing before the circuit court, however, counsel for the Pruitts stated, "I’ve already talked to Tom Anderson. He was the trustee before. He doesn’t know for sure that he's going to be appointed, but he's already told me that if he is appointed, he will come in and seek to be the real party in interest.”


source: Caselaw Access Project

author: SMITH, Chief Justice,

license: Public Domain

text:
    Gary Carl SIMMONS, Jr. v. STATE of Mississippi.
    No. 2006-DR-00174-SCT.
    Supreme Court of Mississippi.
    Nov. 16, 2006.

      Gary Carl Simmons, Jr., pro se.
    Office of the Attorney General by Marvin L. White, Jr., attorneys for appellee.
   SMITH, Chief Justice,

for the Court.

¶ 1. On October 11, 1996, Gary Carl Simmons, Jr., and Timothy John Milano were indicted for the capital murder of Jeffery Wolfe while engaged in the commission of a robbery. They were also charged with the kidnapping and rape of Charlene Leaser. Their trials were severed; Simmons’s trial commenced August 25, 1997, and the jury returned a guilty verdict on all counts in the indictment four days later. A separate sentencing hearing was held on the capital murder conviction, and the jury unanimously found that Simmons should be sentenced to death.

¶ 2. Simmons appealed to this Court and raised twenty-seven issues for consideration. This Court affirmed Simmons’ convictions and sentences on December 13, 2001, and denied rehearing on February 7, 2002. Simmons v. State, 805 So.2d 452 (Miss.2001). Subsequently, Simmons filed a petition for writ of certiorari with the United States Supreme Court that was denied on October 7, 2002. Simmons v. Mississippi 537 U.S. 833, 123 S.Ct. 142, 154 L.Ed.2d 51 (2002).

¶ 3. Simmons returned to this Court and filed an application for post-conviction relief presenting ten grounds for relief that this court denied on January 29, 2004. Simmons v. State, 869 So.2d 995 (Miss.2004). This Court denied rehearing on April 22, 2004. Simmons again filed a petition for writ of certiorari to the United States Supreme Court, which was denied on November 1, 2004. Simmons v. Mississippi 543 U.S. 960, 125 S.Ct. 436, 160 L.Ed.2d 325 (2004).

¶ 4. On October 15, 2004, Simmons filed a petition for writ of habeas corpus with the United States District Court for the Southern District of Mississippi which was amended on October 17, 2004. Simmons v. Epps, No. 1:04-CV-496 (Gu)(S.D.Miss.). The State filed its answer on December 22, 2004. Simmons filed a memorandum in support of his petition and the State filed a memorandum supporting its answer on October 3, 2005. The case remains pending before the United States District Court for the Southern District of Mississippi.

¶ 5. Simmons has now filed with this Court a second, successive application for post-conviction relief under Miss Code. Ann. § 99-39-1 et seq.

ANALYSIS

I. SIMMONS’S MOTION IS BARRED

¶ 6. Simmons’s petition is barred under Miss.Code Ann. § 99-39-27(9) which reads in pertinent part:

The dismissal or denial of an application under this section is a final judgment and shall be a bar to a second or successive application under this article. Excepted from this prohibition is an application filed pursuant to Section 99-19-57(2), Mississippi Code of 1972, raising the issue of the convict’s supervening insanity prior to the execution of a sentence of death. A dismissal or denial of an application relating to insanity under Section 99-19-57(2), Mississippi Code of 1972, shall be res judicata on the issue and shall likewise bar any second or successive applications on the issue. Likewise excepted from this prohibition are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States ivhich would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence. Likewise exempted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or • conditional release has been unlawfully revoked.

Miss.Code Ann. § 99-39-27(9) (emphasis added). Simmons previously presented an application for post-conviction relief to this Court that was denied on January 29, 2004 and the motion for rehearing was denied on April 22, 2004. Simmons v. State, 869 So.2d 995 (Miss.2004). Therefore, this motion is barred by Miss.Code Ann. § 99-39-27(9).

¶ 7. Simmons contends that he escapes this bar because he believes there has been an intervening decision by this Court that would have adversely affected the outcome of the sentencing phase of his trial, thus allowing him to proceed under Miss.Code Ann. § 99-39-27(9). Simmons relies on a single sentence from the withdrawn opinion in Rubenstein v. State, to the effect that the Mississippi Rules of Evidence do not apply to sentencing proceedings. Simmons argues this was the first time this Court has held that the rules of evidence do not apply to the sentencing phase of a death penalty trial.

¶ 8. Simmons contends this forces the Court to vacate his death sentence because this Court determined that a self-serving video made by Simmons after the murder was irrelevant and inadmissible hearsay during the sentencing phase of his trial. Simmons v. State, 805 So.2d 452, 488(¶ 93) (Miss.2001). This is somewhat strange given how hard Simmons worked to keep the videotape from being introduced into evidence during the trial phase because of his supposed admissions therein. Id. at ¶ 94. Simmons argued on direct appeal that “the denial of the videotape as mitigation evidence prevented him from demonstrating to the jury remorse.” Id. at ¶ 95. This Court found in that appeal that the tape would have allowed Simmons to “end-run the hearsay prohibition” since he was present during the trial and elected not to testify; the tape would have at most bolstered his testimony if he had testified, or prohibited cross-examination if he had not. Id. at ¶ 93. This Court also pointed out that such evidence was correctly presented through the testimony of Simmons’s friend, Dennis Guess. Id. at ¶ 97.

¶ 9. Simmons argues incorrectly that this Court has never before held that the rules of evidence do not apply to the sentencing phase of a death penalty case. However, this Court in Randall v. State, 806 So.2d 185, 231-32 (Miss.2001), has previously held:

even if we find that the details of [the defendant’s] prior conviction are appropriate, that Miss. R. Evid. 403 still required their exclusion. However, as the State argues, Rules 101 and 1101(b)(3) state that the Rules of Evidence do not apply to sentencing hearings. Thus, this argument is also without merit,

(emphasis added). Procedural bar notwithstanding, alternatively, we consider the merits of Simmons’s argument. We find that Rubenstein and Randall were available to Simmons for a supplemental brief, for a rehearing motion after the direct appeal decision, and for his original post-conviction application. Therefore, we hold that Rubenstein is not an intervening decision under Miss.Code. Ann. § 99-39-27(9). See Nixon v. State, 641 So.2d 751 (Miss.1994) (interpreting the intervening decisions exemption).

II. SIMMONS WRONGLY PLACES FAITH IN RUBENSTEIN

¶ 10. Simmons’s reliance upon a single sentence in the original Rubenstein opinion that was not released for publication and was still subject to revision or withdrawal is improper. Rubenstein filed a motion for rehearing on January 20, 2006, which this Court granted. On August 10, 2006, this Court withdrew the original opinion cited by Simmons and replaced it with one that does not contain the sentence upon which Simmons relies. Rubenstein v. State, 941 So.2d 735 (Miss.2006). Simmons cannot not receive post-conviction relief based the withdrawn opinion in Rubenstein.

CONCLUSION

¶ 11. Simmons entirely relies on one sentence in the original Rubenstein opinion which was withdrawn. The opinion which replaced it does not contain the language upon which Simmons relies. Rubenstein v. State, 941 So.2d 735 (Miss. 2006). Furthermore, the successive petition bar in Miss.Code Ann. § 99-39-27(9) prevents Simmons from raising this motion for post-conviction relief. Simmons attempts to elude the bar under the intervening decision exception in Miss.Code Ann. § 99-39-27(9), but the language Simmons relies upon in Rubenstein was already available in Randall v. State, 806 So.2d 185, 231-32 (¶ 131) (Miss.2001), and Simmons simply neglected to use it.

¶ 12. Therefore, we deny Simmons leave to seek post-conviction relief.

¶ 13. LEAVE TO SEEK PETITION FOR POST-CONVICTION RELIEF DENIED.

WALLER AND COBB, P. JJ., DIAZ, EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY.


author: EASLEY, Justice,

text:
    Andrew H. CRENSHAW, M.D. v. Michael A. ROMAN and Eva E. Roman.
    No. 2005-IA-01868-SCT.
    Supreme Court of Mississippi.
    Nov. 16, 2006.

      Clinton M. Guenther, Greenwood, attorney for appellant.
    James Kizer Jones, Jackson, attorney for appellees.
   EASLEY, Justice,

for the Court.

PROCEDURAL HISTORY

¶ 1. Michael A. Roman and Eva E. Roman (Eva), collectively “the Romans,” filed suit on December 31, 2002, in the Circuit Court of Marshall County, Mississippi, against Wal-Mart Stores, Inc. (Wal-Mart), Baptist Memorial Hospital-DeSoto, Inc. (BMH-DeSoto), and Andrew H. Cren-shaw, Jr., M.D. (Dr. Crenshaw). The Romans lived in Holly Springs, Marshall County, Mississippi. The Romans were shopping at the Wal-Mart store located in Southaven, DeSoto County, Mississippi, when Eva allegedly slipped and fell on a slippery surface in the store. Eva was transported by ambulance directly to BMH-DeSoto for medical treatment. Dr. Crenshaw, an orthopedic surgeon, performed all three of Eva’s surgeries at BMH-DeSoto.

¶ 2. Wal-Mart is a non-resident defendant incorporated in the State of Delaware, doing business in the State of Mississippi. BMH-DeSoto is a resident corporation organized under the laws of the State of Mississippi with its principal place of business located at 1605 State-line Road, Southaven, DeSoto County, Mississippi. Dr. Crenshaw is a non-resident defendant who resided in Shelby County, Tennessee, but he practiced medicine at the Campbell Clinic, 7545 Airways Boulevard, Southaven, DeSoto County, Mississippi.

¶ 3. The Romans’ complaint alleged that while shopping at the Wal-Mart store, Eva fell and broke her right hip as result of Wal-Mart’s negligence in allowing a slippery surface to exist on its floor. The Romans alleged that BMH-DeSoto’s personnel and Dr. Crenshaw were guilty of negligence in providing their medical treatment. All the alleged acts of medical negligence against the hospital personnel and Dr. Crenshaw occurred at BMH-De-Soto located in DeSoto County.

¶4. All three defendants filed answers to the complaint and executed an agreed scheduling order in the case. BMH-De-Soto filed a motion to vacate deadlines and to stay proceedings due its insurer, Reciprocal of America, being placed in receivership for rehabilitation or liquidation. On September 20, 2003, the trial court entered an agreed order staying the proceedings in the case.

¶ 5. On June 22, 2005, Dr. Crenshaw filed a pre-trial motion for change of venue from Marshall County to DeSoto County relying on this Court’s opinion in Baptist Memorial Hospital-DeSoto County v. Bailey, 919 So.2d 1 (Miss.2005), which was handed down by this Court on June 2, 2005. On July 7, 2005, Dr. Crenshaw further filed a motion to amend his answer pursuant to M.R.C.P. 15(a) to allow the affirmative defense of improper venue.

¶ 6. Likewise, BMH-DeSoto on July 7, 2005, filed its motion to amend its answer and defenses pursuant to M.R.C.P. 15(a) to include the affirmative defense of improper venue. On July 19, 2005, the trial court filed the order granting the Romans’ voluntary dismissal of all claims against BMH-DeSoto with prejudice.

¶7. On September 12, 2005, Wal-Mart filed its motion to join into Dr. Crenshaw’s motion to transfer venue, incorporating the argument advanced by Dr. Crenshaw. On September 23, 2005, the trial court filed its order denying the defendants’ motion to transfer venue, providing no explanation in the order for the denial. On January 11, 2006, this Court entered its order granting Dr. Crenshaw’s petition for interlocutory appeal. See M.R.A.P. 5.

FACTS

¶ 8. On or about August 29, 2001, the Romans were shopping at Wal-Mart, store number 0848, located at 6811 Southcrest Parkway, Southaven, DeSoto County, Mississippi, when Eva allegedly slipped and fell due to a slippery surface condition of the floor, breaking her right hip. Eva was transported by ambulance to BMH-DeSo-to for examination and treatment. Eva was admitted to BMH-DeSoto, where on August 30, 2001, Dr. Crenshaw performed Eva’s surgery to repair her right hip.

¶ 9. Eva advised BMH-DeSoto that she had certain allergies to latex, vinyl, rubber, codeine, sulfa, and nickel. The allergy information was noted in Eva’s hospital adult admission profile/history/assessment care plan and its discharge summary. However, during surgery Dr. Crenshaw implanted a stainless steel “Recon nail,” which was partially made of nickel, to repair Eva’s hip. Eva allegedly began to experience a rash which caused redness, swelling, itching, and pain. When Eva reported her discomfort to Dr. Crenshaw during her follow-up visit, he did not take any further action. Eva then allegedly sought treatment from a dermatologist for her rash on or about November 30, 2001. According to Eva’s complaint, this was the first time that she learned that the “Recon nail” implanted in her hip was partially made of nickel.

¶ 10. On December 5, 2001, Eva underwent her second surgery to remove the “Recon nail” composed of nickel. Dr. Crenshaw performed the second surgery. Dr. Crenshaw then implanted a “Trigen tan nail” made of titanium. However, Dr. Crenshaw allegedly inserted a titanium nail which an x-ray revealed was too long. Dr. Crenshaw was called back to the hospital to perform a third surgery on Eva to remove the incorrect length nail and implant a new titanium nail of the correct length.

¶ 11. On interlocutory appeal, Dr. Cren-shaw raises the issue of whether the trial court erred in denying his motion to transfer the case from Marshall County to De-Soto County relying upon this Court’s holding in Bailey.

ANALYSIS

¶ 12. An abuse of discretion standard of review is applied by this Court when reviewing the trial court’s denial of a motion to change venue. Bailey, 919 So.2d at 2; see also Wayne Gen. Hosp. v. Hayes, 868 So.2d 997, 1002 (Miss.2004) (citing Guice v. Miss. Life Ins. Co., 836 So.2d 756, 758 (Miss.2003)). Accordingly, we will not disturb a trial judge’s ruling on appeal “unless it clearly appears that there has been an abuse of discretion or that the discretion has not been justly and properly exercised under the circumstances of the case.” Hayes, 868 So.2d at 1002 (quoting Guice, 836 So.2d at 758). Additionally, in Austin v. Wells, 919 So.2d 961, 964 (Miss.2006), this Court has clearly held that “proper venue is determined at the time the lawsuit is originally filed, and subsequent dismissal of the defendant upon whom venue is based does not destroy proper venue.” Austin, 919 So.2d at 964 (quoting Estate of Jones v. Quinn, 716 So.2d 624, 628 (Miss.1998)); see also Blackledge v. Scott, 530 So.2d 1363, 1365 (Miss.1988).

¶ 13. On appeal, Dr. Crenshaw argues that the trial court erred in denying the defendants’ motion to transfer venue to DeSoto County from Marshall County. Dr. Crenshaw relies heavily upon this Court’s holding in Bailey. The Romans argue that Miss.Code Ann. § 11-11-11 (2001), as opposed to Miss.Code Ann. § 11-11-3 (2001), controlled.

¶ 14. In Bailey, the plaintiff argued that the “good for one good for all” rule in Senatobia Community Hospital v. Orr, 607 So.2d 1224, 1226 (Miss.1992), applied to allow the plaintiffs county of residence to be the proper venue where a non-resident defendant and a resident defendant were sued. Bailey, 919 So.2d at 2. As in this case, the venue statutes in issue in Orr involved the application of the general venue statute, Miss.Code Ann. § 11-11-3, and Miss.Code Ann. § 11-11-11. Orr, 607 So.2d at 1226. In Orr, this Court relied upon M.R.C.P. 82(c) to find the venue proper in the plaintiffs county of residence. Orr, 607 So.2d at 1226. However, this Court expressly overruled Orr and its logic in Capital City Ins. Co. v. G.B. “Boots” Smith Corp., 889 So.2d 505, 516-17 (Miss.2004), and subsequent followed that holding overruling Orr in deciding Bailey. See Bailey, 919 So.2d at 3.

¶ 15. In Bailey, this Court determined that the mandatory language “shall” in the general venue statute, Miss.Code Ann. § 11-11-3, controlled, holding:

[T]he [Mississippi] Legislature never intended an interpretation of the venue statutes that would allow a resident defendant to be sued in the plaintiffs county of residence simply because a nonresident defendant, be it an individual or a corporation is joined in the same suit. The reasoning and logic in Capital City Ins. Co. control the ease sub judice.

Bailey, 919 So.2d at 3. Miss.Code Ann. § 11-11-3 (2001) was amended in 2002. See 2002 Miss. Laws, 3rd Ex.Sess., ch. 2, § 1, eff. January 1, 2003; 2002 Miss. Laws, 3rd Ex.Sess., ch. 4, § 1, eff. January 1, 2003. At the time this lawsuit was commenced in 2001, Miss.Code Ann. § 11-11-3 (2001) stated:

Civil actions of which the circuit court has original jurisdiction shall be commenced in the county in which the defendant or any of them may be found or in the county where the cause of action may occur or accrue and, if the defendant is a domestic corporation, in the county in which said corporation is domiciled or in the county where the cause of action may occur or accrue, ... If a civil action is brought in an improper county, such action may be transferred to the proper county pursuant to Section 11-11-17.

(Emphasis added). Miss.Code Ann. § 11-11-11 (2001), in effect at the time the case was filed, provided:

All civil actions for the recovery of damages brought against a nonresident or the representative of the nonresident in the state of Mississippi may be commenced in the county in which the action accrued or where the plaintiff then resides or is domiciled, except as otherwise provided by law.

(Emphasis added).

¶ 16. In Capital City Ins., 889 So.2d at 516-17, this Court held:

The additional option of suing in the plaintiff’s home county is not available to a plaintiff when a resident defendant is sued. This logical conclusion has the effect of ranking the general venue statute above the other venue statutes in circumstances where more than one may apply.... In Orr this Court incorrectly presumed that there was no ranking of the statutes and thus did not discuss the possibility. We find today that the reasoning in Orr is flawed; and therefore, it is overruled.

(Emphasis added).

¶ 17. This Court made it clear in Capital City Ins. that the logic applied in Orr, holding that statutes are not ranked, was flawed and expressly overruled. Capital City Ins., 889 So.2d at 516-17. In Capital City Ins., the mandatory language, “shall,” in the general venue statute, Miss.Code Ann. § 11-11-3, controlled over the permissive language, “may,” found in Miss. Code Ann. § 11-11-7. Id. The Court ranked the general venue statute above the other venue statutes that may have applied. Id.

¶ 18. “ ‘[Statutory construction gives preference to one statute over the other,’ therefore, [h]ad the Legislature intended for each statute to have equal footing or equal force then both statutes should have had the mandatory ‘shall’ language.” Id. at 515. Accordingly, we find that mandatory language, “shall,” in the general venue statute, Miss.Code Ann. § 11-11-3, controls in this case over the permissive language, “may,” found in Miss.Code Ann. § 11-11-11. Bailey, 919 So.2d at 3; Capital City Ins., 889 So.2d at 516-17.

¶ 19. The Romans argue that this Court’s holding in Bailey does nob apply retroactively to this case. However, the Romans’ position is without merit. In Thompson v. City of Vicksburg, 813 So.2d 717, 721 (Miss.2002), this Court held:

The law is quite clear regarding retroactive application of judicially articulated rulings. Retroactive application is not limited to pending appeals, as stated by City, but also applies to cases awaiting trial. We have held consistently that “judicially enunciated rules are applied retroactively.” Anderson v. Anderson, 692 So.2d 65, 70 (Miss.1997) (citing Ales v. Ales, 650 So.2d 482, 484 (Miss.1995); Hall v. Hilbun, 466 So.2d 856, 875 (Miss.1985)). These cases were all pending review on appeal when a change in the law occurred, which change was applied retroactively. In Cain v. McKinnon, 552 So.2d 91, 93 (Miss.1989), we stated that a new rule enunciated in a case while Cain was pending was to be “enforceable in all actions pending on [that date], and not then final.” See also Mullen [v. Green Tree Fin-Corporation, 730 So.2d 9, 12 (Miss.1998) ] (citing Griffin v. Tall Timbers Dev., Inc., 681 So.2d 546, 552 (Miss.1996)).

(Emphasis added).

¶20. The Romans further argue that M.R.C.P. 82(c) allows venue to remain in Marshall County. However, M.R.C.P. 82(c) does not support a plaintiff establishing venue in his own county of residence when a resident defendant is a party to the suit. Capital City Ins., 889 So.2d at 517. In Capital City Ins., we expressly overruled any contrary language in Boston v. Hartford Acc. & Indem. Co., 822 So.2d 239 (Miss.2002); Ill. Cent. R.R. v. Travis, 808 So.2d 928 (Miss.2002); American Bankers Ins. Co. of Florida v. Alexander, 818 So.2d 1073 (Miss.2001); and McDonald v. Holmes, 595 So.2d 434 (Miss.1992), which supported Rule 82(c) establishing venue in the plaintiffs county of residence when a resident defendant is a party to the suit. Capital City Ins., 889 So.2d at 517; see also Bailey, 919 So.2d at 4.

¶ 21. Here, BMH-DeSoto, a Mississippi corporation with its principal place of business in DeSoto County, was a named defendant. The Romans did not voluntarily dismiss BMH-DeSoto until the Defendants’ raised the issue of improper joinder. The Romans improperly argue that the dismissal of BMH-DeSoto cured or corrected the improper venue by dismissing BMH-DeSoto, the resident defendant, from the case. See Austin, 919 So.2d at 964 (venue is determined from the original filing).

¶22. Further, Eva was treated at BMH-DeSoto in DeSoto County when she received the alleged negligent care and treatment from BMH-DeSoto and Dr. Crenshaw. Dr. Crenshaw provided all medical treatment Eva received from him in DeSoto County. Eva’s three surgeries were performed at BMH-DeSoto, therefore, the Romans’ allegations of medical malpractice occurred in DeSoto County. Likewise, Eva’s alleged slip and fall occurred in DeSoto County. In this case, venue is proper in DeSoto County. Thus, the trial court abused its discretion in denying a change of venue from Marshall County to DeSoto County.

CONCLUSION

¶ 23. For the foregoing reasons, we reverse the judgment of the trial court denying Dr. Crenshaw’s motion to transfer venue to DeSoto County from Marshall County and remand the case to the Marshall County Circuit Court with directions that it transfer venue in this case to the Circuit Court of DeSoto County consistent with this opinion.

¶ 24. REVERSED AND REMANDED.

SMITH, C.J., WALLER, P.J., CARLSON, DICKINSON AND RANDOLPH, JJ„ CONCUR. COBB, P.J., CONCURS IN RESULT ONLY. DIAZ AND GRAVES, JJ„ DISSENT WITHOUT SEPARATE WRITTEN OPINION.

      . Wal-Mart's answer was not made part of the record submitted on appeal, but the certified circuit clerk’s docket indicates that an answer was filed.

      . The record does not indicate that BMH-DeSoto paid any monetary compensation or settlement to the Romans in exchange for the dismissal with prejudice.

      .The factual allegations are largely taken from the Romans' filed complaint due to the stage in the proceedings when the interlocutory appeal was granted.

      . The Romans argue on appeal that Dr. Cren-shaw did not have the authority to request transfer of venue based on BMH-DeSoto being a resident defendant; Wal-Mart joined into Dr. Crenshaw’s motion for change of venue. However, BMH-DeSoto similarly filed a request to amend its answer raising the issue of improper venue. The Romans do not provide any legal authority for their position. This Court has repeatedly held that the Court is under no obligation to consider an issue concerning which the party has failed to cite authority. Brown v. State, 534 So.2d 1019, 1023 (Miss.1988); see Clark v. State, 503 So.2d 277 (Miss.1987); Kelly v. State, 463 So.2d 1070 (Miss.1985); Redmond v. State, 457 So.2d 1344 (Miss.1984). “An assignment lacking authority lacks persuasion on review.” Brown, 534 So.2d at 1023; Smith v. State, 430 So.2d 406 (Miss.1983).

      . Miss.Code Ann. § 11-11-3 (2003) was revised and omitted the language, "accrue,” providing:
      (1) Civil actions of which the circuit court has original jurisdiction shall be commenced in the county where the defendant resides or in the county where the alleged act or omission occurred or where the event that caused the injury occurred. Civil actions against a nonresident may also be commenced in the county where the plaintiff resides or is domiciled. Civil actions alleging a defective product may also be commenced in the county where the plaintiff obtained the product.
      (2) If a civil action is brought in an improper county, such action may be transferred to the proper county pursuant to Section 11-11-17.
      (Emphasis added). In this case, the revision to remove the language, "accrue,” does not affect the analysis as there is no distinction between accrue and occur raised by the parties.

      . Miss.Code Ann. § 11-11-7 was repealed during the 2002 legislative session.

      . As previously discussed, this Court in Capital City Ins., rejected the holding in Or r, which applied M.R.C.P. 82(c) to find the venue proper in the plaintiffs county of residence, expressly overruling Orr and its logic. Capital City Ins., 889 So.2d at 516-17; see also Bailey, 919 So.2d at 3 (The Court followed its holding in Capital City Ins. regarding the application of M.R.C.P. 82(c).).


author: LEE, P.J., IRVING, J.,

text:
    Brian SPEARS a/k/a Glendrick O’Bryan Spears, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-00662-COA.
    Court of Appeals of Mississippi.
    Oct. 11, 2005.
    Rehearing Denied April 11, 2006.

      Allan D. Shackelford, Clarksdale, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ISHEE, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On or about September 11, 2003, Brian Spears and James Johnson broke into the home of Joyce Market, stealing a DVD player and other items. Following the burglary, the two men immediately went to the home of Spears’s uncle and sold him the DVD player. Due to physical evidence Johnson left at the crime scene, the police were able to locate and arrest him. Johnson gave a statement to the police, implicating Spears in the burglary.

¶ 2. Spears was indicted for attempting to break and enter the home of Joyce Market. A trial was held March 1, 2004, where Spears was convicted by a jury in the Quitman County Circuit Court of burglary of a dwelling, in violation of Mississippi Code Annotated Section 97-17-23 (Rev.2000). Spears now appeals to this Court, asserting the following issues: (1) it was reversible error for the trial judge and prosecutor to amend the indictment during trial to change the charge to one separate and distinct from the charge returned by the grand jury; (2) the trial court erred in allowing a conviction on an amended indictment where the record is devoid of an order allowing amendment of the indictment; and (3) his trial counsel was ineffective in failing to object to the State’s motion to amend the indictment on the ground that the motion to amend the indictment was untimely. Finding error, we reverse and remand.

STANDARD OF REVIEW

¶ 3. “The test for whether an amendment to the indictment will prejudice the defense is whether the defense as it originally stood would be equally available after the amendment is made.” Eakes v. State, 665 So.2d 852, 859-60 (Miss.1995).

DISCUSSION OF ISSUES

I. DID THE TRIAL COURT ERR IN AMENDING THE INDICTMENT?

¶4. Spears was indicted for bur-glariously attempting to break and enter a dwelling house, but during the trial the State made a motion to amend the indictment to change the charge from “attempt to break and enter” to “break and enter.” Over objection by Spears’s counsel, the court granted the motion to amend the indictment. Subsequently, the judge submitted an instruction to the jury on the charge of breaking and entering.

¶ 5. In reviewing a claim of error in the amendment of an indictment, we apply the following standard: “It is fundamental that courts may amend indictments only to correct defects of form, however, defects of substance must be corrected by the grand jury.” Mitchell v. State, 739 So.2d 402, 404(¶ 5) (Miss Ct.App.1999). In order to determine whether an amendment is one of form or of substance, and whether a party was prejudiced by the amendment, the court must determine:

[Wjhether or not a defense under the indictment or information as it originally stood would be equally available after the amendment is made and whether or not any evidence that the accused might have would be equally applicable to the indictment or information in the one form as in the other; if the answer is in the affirmative, the amendment is one of form and not of substance.

Hawthorne v. State, 751 So.2d 1090, 1094(¶ 20) (Miss.Ct.App.1999) (quoting Griffin v. State, 540 So.2d 17, 21 (Miss.1989)). In Wilson v. State, 574 So.2d 1324, 1333 (Miss.1990), our supreme court held, “that a change in the indictment is permissible if it does not materially alter facts which are the essence of the offense on the face of the indictment as it originally stood....”

¶ 6. The State argues that the “attempt” language was merely surplusage, and, therefore, the amendment was not error. The State cites Caldwell v. State, 481 So.2d 850, 854 (Miss.1985), arguing that “attempt” language can be considered surplusage. Caldwell is clearly distinguishable from the case sub judice. In Caldwell, the defendant was indicted for murder while “in the commission of the crime of robbery, or in an attempt to commit robbery....” Id. at 853. Caldwell argued that he was improperly indicted on the attempt charge. Our supreme court determined that the “attempt” language was unnecessary because the State proved the underlying crime of robbery. Id. at 854. Caldwell is clearly inapplicable because, in the case sub judice, prior to the amendment there was no language in the indictment regarding the completed crime, whereas Caldwell had been indicted on both robbery and attempted robbery. The State’s reliance on Caldwell is misplaced.

¶ 7. The State also argues that the amendment was merely a matter of form, namely that it was made to make the indictment conform to the evidence presented at trial. An indictment may be amended to conform with the proof at trial. Miss.Code Ann. § 99-17-13 (Rev. 2000). However, the change can only be one of form not substance and not prejudice the defendant. Hampton v. State, 815 So.2d 429, 431(¶ 7) (Miss.Ct.App.2002).

¶ 8. Spears argues that he was prejudiced by the amendment because under Mississippi Code Annotated Section 97-1-9 (Rev.2000), he could not be convicted of an attempted crime if the evidence showed the crime was completed. Mississippi Code Annotated Section 97-1-19 provides as follows:

A person shall not be convicted of an assault with intent to commit a crime, or of any other attempt to commit an offense, when it shall appear that the crime intended or the offense attempted was perpetrated by such person at the time of such assault or in pursuance of such attempt.

¶ 9. The failure to commit the target crime is an essential element of an attempt. Bucklew v. State, 206 So.2d 200 (Miss.1968). By changing the indictment from charging an attempted crime to a completed crime, Spears’s defense that he had actually completed the crime was no longer available to him. Clearly, Spears suffered prejudice from this amendment. Accordingly, we must reverse and remand Spears’s conviction.

II. DID THE TRIAL COURT ERR IN ALLOWING A CONVICTION ON AN AMENDED INDICTMENT WHERE THE RECORD WAS DEVOID OF AN ORDER ALLOWING AMENDMENT OF THE INDICTMENT?

¶ 10. Having resolved the first issue in Spears’s favor, we decline to address this issue.

III. WAS SPEARS’S TRIAL COUNSEL INEFFECTIVE IN FAILING TO OBJECT TO THE STATE’S MOTION TO AMEND THE INDICTMENT ON THE GROUND THAT THE MOTION WAS UNTIMELY?

¶ 11. Having resolved the first issue in Spears’s favor, we decline to address this issue.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF QUITMAN COUNTY IS REVERSED AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO QUITMAN COUNTY.

KING, C.J., MYERS, GRIFFIS AND ISHEE, JJ., CONCUR. IRVING, J„ DISSENTS WITH A SEPARATE WRITTEN OPINION JOINED BY BRIDGES, P.J., CHANDLER AND BARNES, JJ.

IRVING, J.,

Dissenting.

¶ 13. I cannot agree with the majority that the indictment was improperly amended; therefore, I respectfully dissent.

¶ 14. The heading of the indictment in this case contains the following explanatory language: “burglary of a dwelling, MCA section 97-17-23.” The central portion of the indictment charges that “Brian Spears and James Johnson, ... on or about September 11, 2003, ... individually or while aiding and abetting and/or acting in concert with each other, did then and there, unlawfully, willfully, feloniously and burglariously attempt to break and enter the dwelling house of Joyce Market....”

¶ 15. Mississippi Code Annotated § 97-17-23 (Rev.2000) as amended reads:

Burglary; breaking and entering inhabited dwelling
Every person who shall be convicted or breaking and entering the dwelling house or inner door of such dwelling house of another, whether armed with a deadly weapon or not, and whether there shall be at the time some human being in such dwelling house or not, with intent to commit some crime therein, shall be punished by imprisonment in the Penitentiary not less than three (3) years nor more than twenty-five (25) years.

¶ 16. Reading the indictment contextually compels the conclusion that Spears was charged with burglary, not with an attempt to commit burglary. While the indictment does contain the phrase “attempt to break and enter,” it seems reasonably clear to me that the insertion of the phrase was no doubt a scrivener’s error and could be struck as mere surplus-age.

¶ 17. The crime of attempting to commit an offense is defined in Mississippi Code Annotated section 97-1-7 (Rev.2000). If the explanatory heading of the indictment had recited the attempt statute as the charging statute, I could readily understand the majority’s finding that Spears was charged with attempting to commit burglary, but that is not the case.

¶ 18. Since I do not believe that Spears was ever charged with attempting to commit burglary, I do not address the majority’s rationale for reversing and remanding. In my opinion, it was proper to amend the indictment to conform with the charging statute, as well as to conform with the proof. I would affirm Spears’s conviction.

BRIDGES, P.J., CHANDLER AND BARNES, JJ., JOIN THIS SEPARATE WRITTEN OPINION.


author: ROBERTS, J.,

text:
    John Edgar CARR, Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-KM-02027-COA.
    Court of Appeals of Mississippi.
    Nov. 21, 2006.
    Robert Stanley Little, for Appellant.
    Bela J. Chain, Oxford, for Appellee.
    Before KING, C.J., CHANDLER and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On May 26, 2004, John Edgar Carr was arrested in Oxford for driving under the influence and failing to dim his headlights. Carr appeared before the Oxford Municipal Court on November 3, 2004, and was convicted of both charges against him. Following his conviction, Carr was fined $1,008.50 and sentenced to two days in jail, suspended on two years good behavior. Carr subsequently appealed his conviction to the Circuit Court of Lafayette County and received a trial de novo therein on October 21, 2005. After a trial on the merits, Judge Henry Lackey found Carr guilty of driving under the influence and failing to dim his headlights. Judge Lackey fined Carr $1,000 and sentenced him to two days in jail, but did not suspend the sentence. Aggrieved by this “upward enhancement,” Carr now appeals and argues that “[b]y imposing a sentence greater than that imposed by the lower court, the circuit court judge violated the due process clause of the Mississippi constitution.”

¶ 2. Finding no error, we affirm.

ANALYSIS

¶ 3. While acknowledging the current state of the law, Carr argues that this Court should rethink the position taken by the supreme court with regard to the issue of whether a sentence may be enhanced following a de novo appeal. Our supreme court has stated, “There is no absolute constitutional bar to sentence enhancement at a second trial.” Payton v. State, 897 So.2d 921 (¶ 106) (Miss.2003) (citing Colten v. Kentucky, 407 U.S. 104, 117, 92 S.Ct. 1953, 32 L.Ed.2d 584,(1972)). The enhanced sentence is permitted to stand so long as it is within statutory limits. Fisher v. Eupora, 587 So.2d 878, 885 (Miss.1991). While there are some instances when the reviewing court must place in the record those reasons for an enhanced sentence, see Payton, 897 So.2d at (¶ 106), the case before us is not one of them, as the supreme court has reasoned that an on the record explanation of the enhanced sentence is not warranted after a trial de novo in a superior court following an appeal from an inferior court. Bush v. State, 667 So.2d 26, 29 (Miss.1996).

¶ 4. As is evident from the paragraph above, the law concerning the constitutionality of enhancing a lower court’s sentence following a de novo review by the superior court is clear. This Court is duty bound to uphold and apply all precedent handed down from the supreme court, and while our interpretation may, at times, differ from the high court, we are neither obliged nor empowered to reverse the precedent surrounding the issue presented. Therefore, as Carr’s legal woes were passed down to this Court, we must imply that the supreme court does not wish to take such a drastic step as to alter the status quo of the jurisprudence in question. Accordingly, we affirm.

¶ 5. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY OF CONVICTION OF DUI Ist AND FAILURE TO DIM HEADLIGHTS AND SENTENCE OF 48 HOURS (2 DAYS) IN THE LAFAYETTE COUNTY DETENTION CENTER AND A FINE OF $1000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. SOUTHWICK, J., CONCURS IN RESULT ONLY.


author: IRVING, J.,

text:
    William D. ALLEN, Deceased, by and through Darlene W. Allen, his Widow, as his Personal Representative; and Darlene W. Allen, Individually, Appellants. v. CHOICE HOTELS INTERNATIONAL, Appellee.
    No. 2005-CA-00045-COA.
    Court of Appeals of Mississippi.
    Nov. 21, 2006.

      Mark D. Lumpkin, Biloxi, Jennifer P. Burkes, Gulfport, James R. Reeves, attorneys for appellants.
    James E. Welch, William E. Whitfield, Gulfport, attorneys for appellee.
    Before KING, C.J., SOUTHWICK and IRVING, JJ.
   IRVING, J.,

for the Court.

¶ 1. This appeal arises out of an action filed by Darlene Allen, individually, and as the wrongful death heir of her husband, William Allen, for his death and her injuries at a Gulfport Comfort Inn. The action was filed against R.C.P. Enterprises d/b/a Comfort Inn, the franchisee, and R.D. Patel, its managing partner, (collectively, the Comfort Inn) and against Choice Hotels International (Choice), the franchisor. This appeal is against Choice only. Darlene claims that Choice failed to provide reasonable security to protect guests at the hotel and, as a result, she and her husband were harmed by the criminal acts of an intruder. The trial court entered summary judgment on behalf of Choice, finding that the franchisor was not vicariously liable because it did not control or have the right to control the day-to-day operation of the hotel.

¶2. Darlene asserts five issues on appeal, all of which question the propriety of the grant of summary judgment. Therefore, we discuss them as subparts of the central issue.

¶ 3. Finding no error, we affirm.

FACTS

¶ 4. On October 25,1996, the Allens, who were from Galveston County, Texas, finished visiting a Gulfport casino and returned to their room at the Comfort Inn. Unbeknownst to them, a trio of individuals from Montgomery, Alabama, was surveil-ling the casino parking lot looking for someone to rob. The three had decided to visit the Mississippi Gulf Coast and rob a non-Mississippian at one of the casinos. Upon seeing a Texas tag on the Allens’ van, the trio followed the Allens back to the Allens’ hotel. Presumably by pretense, one robber got William to answer the door. After the door was opened, the robber and an accomplice pushed their way into the Allens’ room and struggled with William over his wallet. During the struggle, William was fatally shot, and Darlene was injured.

STANDARD OF REVIEW

¶ 5. The law is well established with respect to the grant or denial of a motion for summary judgment. The appellate court applies a de novo standard of review concerning the propriety of a trial court’s grant or denial of summary judgment. Montgomery v. Woolbright, 904 So.2d 1027, 1029(¶ 7) (Miss.2004). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). To survive a motion for summary judgment, the opposing party must establish that there is a genuine issue of material fact. Matthews v. Horseshoe Casino, 919 So.2d 278, 280(¶ 5) (Miss.Ct.App.2005) (citing Lowery v. Guaranty Bank & Trust Co., 592 So.2d 79, 81 (Miss.1991)). The adverse party may not rest upon the mere allegations or denial of the pleadings, but instead, in its response, the party must set forth facts showing that there is a genuine issue for trial. Miller v. Meeks, 762 So.2d 302, 304(¶ 3) (Miss.2000). The evidentiary matters are viewed in the light most favorable to the non-moving party. Id. Following this examination, if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, summary judgment is affirmed. Id.

ANALYSIS AND DISCUSSION OF THE ISSUES

Traditional Agency Analysis

¶ 6. The parties have provided us no Mississippi cases or authority on the liability of a franchisor to patrons of its franchisee who are harmed by the acts of a third party on the franchised premises, nor have we been able to find any authority after diligent search and inquiry. However, there is extant Mississippi law regarding when a third party, such as Choice, can be held liable for acting as the master of another party. “Our cases in the held revolve around the idea of control. The right to control is as important as de facto control at the tortious moment, for the right to control the work of another ‘carries with it the correlative obligation to see to it that no torts shall be committed’ by the other in the course of the work.” Fruchter v. Lynch Oil Co., 522 So.2d 195, 199 (Miss.1988) (quoting White’s Lumber & Supply Co. v. Collins, 186 Miss. 659, 672, 191 So. 105, 106 (1939)). Therefore, one who controls, or has the right to control, the work of another may be liable as the master of that party. However, the potential control does not create liability unless the alleged master had the right to control the means as well as the ends. “There is another fact premise sometimes pointing to non-liability: If the party ... is concerned only with ultimate results and not the details of [the] work.” Id.

¶ 7. In Kisner v. Jackson, 159 Miss. 424, 428-29, 132 So. 90, 91 (1931), the Mississippi Supreme Court expounded a non-exclusive list of factors that are to be used in determining whether a party is the master of another party:

(1) Whether the principal master has the power to terminate the contract at will;
(2) whether he has the power to fix the price in payment for the work, or vitally controls the manner and time of payment;
(3) whether he furnishes the means and appliances for the work;
(4) whether he has control of the premises;
(5) whether he furnishes the materials upon which the work is done and receives the output thereof, the contractor dealing with no other person in respect to the output;
(6) whether he has the right to prescribe and furnish the details of the kind and character of work to be done;
(7) whether he has the right to supervise and inspect the work during the course of the employment;
(8) whether he has the right to direct the details of the manner in which the work is to be done;
(9) whether he has the right to employ and discharge the subemployees and to fix their compensation; and
(10) whether he is obliged to pay the wages of said employees.

¶ 8. Applying these factors, we find that Choice did not act as a master to the Comfort Inn. Choice did not pay the hotel staffs wages, Choice did not have the right to hire or terminate “subemployees” or fix their wages, and Choice had no right to direct the details of the operation of the Comfort Inn. While the Rules and Regulations contained many specific requirements, Choice did not have the right to tell Comfort Inn how to conduct its day-to-day business, such as what hours employees would work or what hours the hotel should be open. Furthermore, Choice did not have the right to tell the Comfort Inn what rate to rent its rooms at, nor could Choice terminate the franchise agreement at will. While some of the other factors might support a finding that Choice acted as the master of the Comfort Inn, the factors as a whole indicate that the Comfort Inn was not Choice’s servant.

Liability in the Franchise Context

¶ 9. Other jurisdictions that have addressed the question of a franchisor’s vicarious liability have noted that a franchise relationship is far different from a contract of employment where the rules of master/servant are typically applied. Kerl v. Dennis Rasmussen, Inc., 273 Wis.2d 106, 682 N.W.2d 328, 337 (2004). Because of this difference, courts have held the franchisor vicariously liable only when it had the right to control the specific instrumentality or aspect of the business that was alleged to have caused the harm. Id. at 340. We find this application of the law to be consistent with Mississippi law, which has consistently refused to hold the employer of an independent contractor liable unless the employer was maintaining a “right of control over the performance of that aspect of work which gave rise to the injury.” Cashwell v. Fincher, 914 So.2d 1250, 1253(¶ 7) (Miss.2005) (quoting Magee v. Transcontinental Gas Pipe Line Corp., 551 So.2d 182, 186 (Miss.1989)). Furthermore, the Mississippi Supreme Court has stated that “the main element required to constitute the relationship of master and servant is that the servant be subject to the control of the master in carrying on the business at the time of the injury.” Estate of Stovall v. Deweese Lumber Co., 222 Miss. 833, 837, 77 So.2d 291, 293 (quoting Kisner, 159 Miss. at 428, 132 So. at 91).

¶ 10. With these principles in mind, we turn to the specific facts of the case at hand. Because the Allens were harmed by an alleged deficiency in the Comfort Inn’s security, we must look to whether Choice exercised control over, or had the right to control, the hotel’s security. At oral argument, Darlene’s counsel urged this Court to find that Choice’s requirements about motel doors show that Choice exercises control over the safety system at the hotel. Choice requires that a guest room entry door be a minimum of two inches in width and have a 180-degree door viewer, commonly called a peephole. A deadbolt lock is also required on the door, and security bars must be placed on any sliding doors. We are not persuaded that these requirements show enough control to shift responsibility for safety to Choice. We note again that it is not only results that a franchisor must control, but also the means to those ends. These few requirements regarding hotel doors do not show that Choice had the right to control both the means and the ends of security at the Comfort Inn.

¶ 11. Our review of this issue is consistent with that of other courts, which have generally granted summary judgment for a franchisor after finding the franchisor did not control the franchisee’s day-to-day operation, as will be discussed infra A general summation of the relationship between a franchisor and its franchisee in a vicarious liability setting is found in Kerl, where summary judgment was granted to the franchisor, Arby’s, Inc., on a claim of negligent failure to supervise a work-release inmate who was temporarily employed at an Arby’s restaurant. Kerl, 682 N.W.2d at 331. The inmate left Arby’s without permission and went to another location, where he shot his former girlfriend and killed her fiancé. Id.

¶ 12. The court said that, in the typical franchise arrangement, the franchisee operates “an independent business pursuant to a license to use the franchisor’s trademark or trade name.” Id. Usually the franchise arrangement involves a detailed agreement “designed to protect the integrity of the trademark by setting ‘uniform quality, marketing, and operational standards.’ ” Id. The court eschewed applying a broad rule of franchisor vicarious liability, stating that, before vicarious liability can be imposed on the franchisor, a “precisely focused test” must be applied. Id. at 331-32. The court, which, like this Court, was also considering the issue as a case of first impression, examined similar cases and found that “the marketing, quality, and operational standards commonly found in franchise agreements are insufficient to establish the close supervisory control or right of control necessary to demonstrate the existence of a master/servant relationship for all purposes or as a general matter.” Kerl, 682 N.W.2d at 332.

¶ 13. As already mentioned, the court noted that a franchise relationship is far different from a contract of employment where the rules of master/servant are typically applied. Id. at 337. Because of this difference, the Kerl court found that a franchisor should be held vicariously liable only when it had the right to control the specific instrumentality or aspect of the business that was alleged to cause the harm. Id. at 340. Applying these principles, the Wisconsin Supreme Court found that Arby’s had no control over the supervision of the franchisee’s employees and thus was not vicariously liable for negligent supervision of the employee in question. Id. at 342.

¶ 14. In a somewhat factually similar case involving Choice and another Comfort Inn, a federal district court found summary judgment proper after determining that Choice did not control the hotel’s daily operation or security and fire safety systems. Allen v. Greenville Hotel Partners, Inc., 409 F.Supp.2d 672 (D.S.C.2006). In Allen, two estate representatives and an injured hotel guest sued Choice and others for wrongful deaths and injuries suffered in a fire set by an arsonist at a Comfort Inn. Id. at 674. The plaintiffs claimed that Choice was negligent for failing to provide adequate security and fire protection at the Comfort Inn. Id. The court looked at the franchise agreement and said that the purpose of the agreement was merely to maintain “uniform service within, and public good will toward, the [Choice] system” so as to ensure a similar experience for hotel patrons. Id. at 677 (quoting Hayman v. Ramada Inn, Inc., 86 N.C.App. 274, 357 S.E.2d 394, 397 (1987)). The court found that summary judgment was warranted, as the franchisor did not control the hotel’s daily operations, nor did it control the specific instrumentality which allegedly caused the harm — the hotel’s security and life safety systems. Id. at 679-80.

¶ 15. In Hayman, a motel patron was assaulted by a third party on the grounds of a Ramada, Inn, the franchisee. Hayman, 357 S.E.2d at 395. The patron sued the franchisor for failing to maintain adequate security. Id. The court, finding that the franchisor exerted no control over the daily operation of the Ramada Inn, held that summary judgment was appropriate. Id. at 397. The court said:

The general purpose of the [franchise agreement] is the maintenance of uniform service within, and public good will toward, the Ramada Inn system. Otherwise, [the franchisee] operates the facility on its own behalf. The agreement primarily requires [the franchisee] to comply with certain standards in the construction, furnishing, and advertising of the facility. Apart from the imposition of a general duty upon [the franchisee] to maintain its accommodations “in a clean, attractive, safe and orderly manner,” the twenty-page contract imposes no standards nor makes any other provision with respect to security of the premises.

Id.

¶ 16. The court also rejected the plaintiffs contention that, by requiring the franchisee to maintain liability insurance naming the franchisor as an additional insured and to indemnify the franchisor for claims, the franchisor implicitly accepted responsibility and acknowledged liability for injuries on the premises. “This type of indemnity contract concerns only the two parties thereto, is not germane to plaintiffs cause of action, and may not be used to establish defendant’s liability.” Id. at 398 (citing Greene v. Charlotte Chem. Labs., Inc., 254 N.C. 680, 120 S.E.2d 82 (1961)).

¶ 17. In our case, the eighteen-page franchise agreement grants the franchisee, R.C.P. Enterprises, use of “the system.” The agreement defines “the system” as “a plan and system for providing to the traveling public lodging of a high standard of service, courtesy, and cleanliness, utilizing distinctive identification schemes, standards, specifications, and Proprietary Marks and information.” A part of the system requires the franchisee to use Choice’s advance registration system and to display the Comfort Inn logo in all advertising. The franchisee must post signs showing the franchisee’s participation in Choice’s business referral and credit card arrangement. In return, Choice receives a one-time affiliation fee of $35,000 and monthly royalty fees from use of the rooms. Choice also agrees to pay marketing and reservation fees.

¶ 18. In paragraph 17(a)(1) of the franchise agreement, the parties agree that the contract does not create a fiduciary relationship between them. The agreement provides that the franchisee is an independent contractor and says that “nothing in this Agreement is intended to constitute either party as an agent, legal representative, subsidiary, joint venturer, partner, employee, independent contractor or servant of the other for any purpose whatsoever.” Further, in paragraph 17(b), R.C.P. is required to “hold itself out to the public as an independent contractor operating the hotel pursuant to a franchise agreement from [Choice].” Also, in the same paragraph, R.C.P. agrees to exhibit, in a conspicuous place in the lobby of the hotel, notice of the independent contractor relationship.

¶ 19. In paragraph 5 of the agreement, Choice agrees to (1) lend R.C.P. an operations and service manual which sets out the operation of the system in management and administration of the hotel, (2) provide an initial orientation program for R.C.P. and its employees with R.C.P. paying the expenses of the employees’ training, (3) consult with and advise R.C.P. about renovations necessary to bring the hotel within compliance with the standards in the system, (4) use certain monies, collected from R.C.P., for national and international advertising, publicity and promotion including the publication and distribution of a directory of hotels affiliated with Choice, (5) use certain monies collected from R.C.P. to maintain advance reservation services, and (6) periodically inspect the hotel in order to evaluate the R.C.P.’s compliance with the franchise agreement and Choice’s rules and regulations. In Paragraph 22(e) of the agreement, Choice and R.C.P. acknowledge and agree that, notwithstanding the terms and conditions of the agreement, R.C.P. retains “ordinary business control” and “is solely responsible for the day-to-day operations of the hotel.”

¶ 20. Our review of the franchise agreement in this case indicates that the agreement, like the agreements discussed in other cases, is meant to provide a system of uniformity for Choice franchisees. This summation of the purpose of the agreement is supported by the agreement’s definition of “the system”: “a plan and system for providing to the traveling public lodging of a high standard of service, courtesy, and cleanliness, utilizing distinctive identification schemes, standards, specifications, and Proprietary Marks and information.” In other words, the franchisee is operating a hotel that is designed to look like other Comfort Inns, so that customers feel as though they are not staying in a completely different hotel.

¶ 21. Darlene’s central argument is that the agreement, along with the imposition of extensive rules and regulations upon R.C.P. by Choice, proves that Choice retains the right of control. The “Rules and Regulations” is a 145-page proprietary document that covers numerous items with which R.C.P. must comply, including construction requirements and operational requirements pertaining to all Comfort Inns. In further support of its summary judgment motion, Choice presented the deposition testimony of a Choice corporate representative, Robert Kerr. When questioned regarding different aspects of the operation of a Comfort Inn by a franchisee, Kerr insisted at every turn that Choice did not control the hotel’s daily operations. The plaintiffs presented no sworn testimony to contradict or dispute Kerr’s testimony, and there was no admission in Kerr’s testimony that Choice controlled customer safety on the franchised premises. When a motion for summary judgment is made and supported as provided in Rule 56 of the Mississippi Rules of Civil Procedure, the opposing party may not rest upon mere allegations or denial of his pleadings, but must set forth specific facts by affidavit or otherwise to show that there is a genuine issue for trial. M.R.C.P. 56(e). Therefore, Darlene failed to present a genuine issue of material fact as to whether Choice exercised control over the day-today operation of the Comfort Inn.

¶ 22. Notably, another court considering Choice’s rules and regulations in a tort setting found that the rules and regulations did not establish enough control by Choice to find it liable. In Anderson v. Turton Dev., 225 Ga.App. 270, 483 S.E.2d 597, 598 (1997), the plaintiff sued the franchisee and Choice for negligence after her slip and fall on a handicap parking ramp in a Comfort Inn parking lot. The plaintiffs claim against Choice rested on a theory of agency based upon the franchise contract and its rules and regulations. Id. at 600. The court rejected the claim and said:

The agreement sets forth the terms and conditions under which [the franchisee] may be licensed to operate a hotel or motel using the name “Comfort Inn,” and the rules and regulations impose various building, construction, and operational requirements, “not to permit [Choice] to direct or control the time, manner and method of performance of the daily operations of the franchise but as a means of achieving a certain level of quality and uniformity within [its] system.”

Id. at 601 (quoting McGuire v. Radisson Hotels Int'l, 209 Ga.App. 740, 435 S.E.2d 51, 53 (1993) (examining a Radisson franchise agreement and operating manual and rejecting a negligence claim against the franchisor, Radisson Hotels International, for injuries suffered by a guest)). See also Hong Wu v. Dunkin’ Donuts, Inc., 105 F.Supp.2d 83, 91 (E.D.N.Y.2000) (examining a Dunkin’ Donuts franchise agreement and concluding that the franchisor’s right to enforce standards designed to maintain uniform appearance and services are not sufficient to find vicarious liability for a claim of negligence for an assault on a franchisee’s employee on the franchise premises).

Franchises and Trademarks

¶ 23. Typically, a franchisor’s principal asset is its trademark. As a result, a consideration in franchise cases that is not found in other vicarious liability cases is the control that a franchisor must exert over the franchised premises in order to protect its trade or service mark. Under the federal Lanham Act act, an owner may lose its trademark if the trademark is used in a manner that causes the mark to lose its significance as an indication of origin, ie. if the trademark ceases to represent in the public’s mind the item or subject which the mark originally symbolized. 15 U.S.C. § 1127 (2000). Thus, the trademark owner must preserve his asset and protect the public against deceptive uses of the trademark, which typically means the franchisor must regulate the franchisee. In a typical franchise agreement, there are detailed requirements regarding the franchisee’s operation of the franchise. One writer notes that imposing liability on a franchisor for control over day-to-day operations of a franchise could unfairly penalize the franchisor, which “must exercise a high degree of control to protect [its] trade or service mark under the Lanham Act.” Michael R. Flynn, Note, The Law of Franchisor Vicarious Liability: A Critique, 1993 Colum. Bus. L.Rev. 89, 99. Franchises which distribute goods and services require a high degree of control by the franchisor in order to protect the goodwill value of the product and the trademark associated with the business:

For example, a distributor of gasoline does not really need to specify the exact shape, layout, and color scheme of a service station franchise to protect the trademark on its petroleum products. On the other hand, such details might be critical to the validity of the service mark of a McDonald’s restaurant, a Blockbuster Video store, or a 7-Eleven convenience store.

Id. at 100.

¶24. The Greenville Hotel Partners court considered whether a Choice franchisee agreement, with its right to enforce standards designed to maintain uniform appearance and service, was sufficient to give rise to vicarious liability. The court found that the rules and regulations are a way “to ensure a similar experience” at all Comfort Inns, thereby maintaining public goodwill toward the Choice franchise. Greenville Hotel Partners, 409 F.Supp.2d at 677 (quoting Hayman, 357 S.E.2d at 397). Likewise, the Kerl court said that “the detailed quality and operational standards and inspection rights specified in the franchise agreement are integral to the protection of the franchisor’s trade or service mark under the Lanham Act.” Kerl, 682 N.W.2d at 338 (citations omitted). “The purpose of the Lanham Act ... is to ensure the integrity of registered trademarks, not to create a federal law of agency ... [or to] automatically saddle the licensor with the responsibilities under state law of a principal for his agent.” Id. (quoting Oberlin v. Marlin Am. Corp., 596 F.2d 1322, 1327 (7th Cir.1979)).

¶ 25. Thus it appears that, in the business of franchising, franchisors “are not always necessarily using a franchise relationship as a bad faith ‘end-run’ around the rule of employer liability. Rather, franchise agreements often prescribe rigid control over day-to-day business functions because they otherwise risk non-compliance with the Lanham Act,” and ultimately the loss of the trademark. Flynn, supra, at 101.

Apparent Authority

¶26. Mississippi cases have also found vicarious liability where “a party holds itself out as offering services to the public and ... consumers are reasonably led to believe that they are doing business with that party....” Fruchter, 522 So.2d at 200. Thus, in Elder v. Sears Roebuck & Co., 516 So.2d 231, 234-35 (Miss.1987), the Mississippi Supreme Court held Sears liable, notwithstanding the fact that the store in question was run by an “independent” third party, because Sears held itself out to the public as the entity that the public was doing business with. However, in this case, Choice required that R.C.P. Enterprises display, in a prominent location in the hotel’s lobby, a sign indicating that the Gulfport Comfort Inn was run by an independent party, and not by Choice. Therefore, Choice did not lead the public to believe that customers were doing business with Choice.

Negligence Elements

¶ 27. Finally, we note that summary judgment is also required due to another failure in Darlene’s proof. “The elements of a negligence action are well-settled in Mississippi. A plaintiff in a negligence suit must prove by a preponderance of the evidence (1) duty, (2) breach of duty, (3) causation, and (4) injury. To recover, a plaintiff must prove causation in fact and proximate cause.” Patterson v. Liberty Assocs., L.P., 910 So.2d 1014, 1019(¶ 14) (Miss.2004) (citations omitted). The Patterson court explained that proximate cause is a cause “without which the result would not have occurred.” Id. (quoting Delahoussaye v. Mary Mahoney’s, Inc., 783 So.2d 666, 671 (¶ 13) (Miss.2001)). No evidence has been offered in this case to show that any security measures, or lack thereof, were a proximate cause of the Allens’ injuries. Therefore, even if we were to find that Choice could be held vicariously liable for the Comfort Inn’s security measures, summary judgment would still be appropriate because no genuine issue of material fact as to causation has been created.

¶ 28. In conclusion, we note that the majority view is that the franchisor must control or have the right to control the “specific instrumentality” that caused the plaintiffs harm for a court to apply vicarious liability. In looking at whether there is an agency relationship between the franchisor and the franchisee, the majority of courts do not consider the rules and regulations, which are part of the franchise agreement, as a measure of direction and control. Instead, the courts find that these very specific and strict rules are a way for the franchisor to protect its trademark and to protect the public. We find no evidence in the record which would show that Choice had the right to control the day-to-day activities of the Gulfport Comfort Inn. Without such a showing of control or right to control, the franchisor should be granted summary judgment.

¶ 29. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.

      . In a minority of cases, courts have found enough control by the franchisor to allow the case to go to a jury. Greil v. Travelodge Int’l, Inc., 186 Ill.App.3d 1061, 133 Ill.Dec. 850, 541 N.E.2d 1288 (1989) (applying an enterprise theory to hold that because the franchisor reaps the benefits in profits and goodwill of the franchise enterprise it also should bear the burden for the activities of the franchisee). Some of the cases finding vicarious liability are noted at Phoebe Carter, Franchisor's Tort Liability for Injuries Allegedly Caused by Assault or Other Criminal Activity on or Near Franchise Premises, 2 A.L.R.5th 369, 1992 WL 767498 (1992).

      . " 'Proprietary Marks’ or 'Marks’ means the trademarks and service marks Comfort, Comfort Inn, Comfort Hotel, and Comfort Suites, either alone or in combination with logotypes, signs, emblems designated by [Choice], together with such other marks which [Choice] may from time to time authorize in writing for use in connection with the System.”

      . The Trademark Act of 1946, commonly known as the Lanham Act, is codified in approximately forty-five sections of Title 15, Chapter 22, of the U.S.Code and is the principal source of federal statutory law regarding trademarks and unfair competition.

      . Herbert B. Chermside, Jr., Annotation, Vicarious Liability of Private Franchisor, 81 A.L.R.3d 764, 1977 WL 45842 (1977).