author: IRVING, J„

text:
    The ESTATE OF Willie FINLEY, Sr., by and through Verrie L. JORDAN, Administratrix, for the Use and Benefit of the Estate of Willie Finley, Sr., and for the Use and Benefit of the Wrongful Death Beneficiaries of Willie Finley, Sr., Appellant v. BEVERLY HEALTH AND REHABILITATION SERVICES, INC., Beverly Enterprises-Mississippi, Inc., David Banks and Charlie R. Sinclair, Jr., Appellees.
    No. 2005-CA-00060-COA.
    Court of Appeals of Mississippi.
    July 18, 2006.

      Douglas Bryant Chaffin, James Burke McHugh, Kenneth Luke Connor, Michael Jay Fuller, attorneys for appellant.
    Michael O. Gwin, Louis B. Lanoux, Jackson, attorneys for appellees.

      Before KING, C.J., IRVING, CHANDLER and ISHEE, JJ.
   IRVING, J„

for the Court.

¶ 1. Verrie Jordan, administratrix of her father, Willie Finley’s, estate, on behalf of the estate and Finley’s wrongful death beneficiaries, sued Beverly Health and Rehabilitation Services, Inc. (Beverly), David Banks, and Charlie Sinclair, Jr. alleging wrongful death, negligence, and medical malpractice, among other claims. After discovery, summary judgment on behalf of the Appellees was granted by the Circuit Court of Hinds County. Aggrieved, Jordan appeals and asserts the following issues, which we quote verbatim:

I. Whether the trial court erred in deeming Defendants’ requests for admissions admitted.
II. Whether the trial court erred in refusing to allow withdrawal of the deemed admissions.
III. Whether the trial court erred in granting summary judgment based on the deemed admissions.
IV. Whether the nursing home administrators and licensees owe a duty of care to residents.

¶ 2. Finding no error, we affirm.

FACTS

¶3. Finley was admitted to Beverly Northwest, a Jackson nursing home facility owned and operated by Beverly, after being diagnosed with terminal cancer. Finley left Beverly Northwest on March 3, 2000, and moved into the Whispering Pines Hospice, a facility designed to keep terminal patients comfortable until they expire. On April 2, 2000, Finley passed away. His death certificate indicates that the causes of death were cancer and paraplegia.

¶ 4. Jordan contends that staff shortages and other administrative problems at Beverly Northwest led to Finley being given negligent and sub-standard care. Specifically, Jordan alleges that negligent conduct caused Finley to suffer from severe pressure sores, falls, urinary tract infections, dehydration, malnutrition, pneumonia, contractures, and weight loss. According to Jordan, “[tjhese repeated insults to his health led to his death on April 2, 2000.”

¶ 5. During discovery, the Appellees proposed a request for admissions “asking the plaintiff to admit or deny whether each individual caregiver acted within the standard of care.” Jordan responded to the request with non-responsive answers. After receiving Jordan’s response, the Appel-lees filed a motion asking the court to determine whether the responses were sufficient. After the court determined that the responses were not sufficient, it ordered Jordan to file an amended response. Jordan complied, and her amended responses were also found to be insufficient. Upon motion from the Appellees, Jordan’s second set of responses were deemed admitted for failure to sufficiently respond to the request.

¶ 6. The deemed admissions conclusively established that all of the caregivers listed in the request had not deviated from the standard of care in treating Finley. Cole v. Buckner, 819 So.2d 527, 531(1113) (Miss.2002) (quoting M.R.C.P. 36(b)). Thereafter, summary judgment was granted on the basis that no caregiver had deviated from the standard of care, and Finley had therefore received adequate care while at Beverly Northwest.

¶ 7. Additional facts, as necessary, will be related during our discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Deemed Admission of the Requests

¶ 8. Jordan alleges that the trial court erred in deeming the requests admitted, and argues that the deemed admissions “allowed Defendants to shoehorn Plaintiffs case into a theory Plaintiff did not wish to pursue.”

¶ 9. As acknowledged by Jordan: “Matters of discovery are left to the sound discretion of the trial court, and discovery orders will not be disturbed unless there has been an abuse of discretion.” Earwood v. Reeves, 798 So.2d 508, 514(¶ 19) (Miss.2001) (citing Dawkins v. Redd Pest Control Co., 607 So.2d 1232, 1235 (Miss.1992)). Rule 36 of the Mississippi Rules of Civil Procedure, which governs requests for admissions, dictates: “If the court determines that an answer does not comply with the requirements of this section, it may order either that the matter is admitted or that an amended answer be served.” M.R.C.P. 36(a).

¶ 10. In the present case, the first answers submitted by Jordan stated:

Defendants have now propounded 176 separate request [sic] for admissions in which they simplistically ask Plaintiff to admit that every single one of Defendant’s current and former employees did not fall below the appropriate standard of care in providing care to Willie Finley. By doing so, Defendants willfully ignore the fact that Plaintiffs complaint makes it very clear that the poor care Willie Finley received at Defendants’ nursing home was a result of corporate policies and a systemic program of un-derstaffing the facility and failing to provide adequate training and supervision and hiring of staff. Defendants created an environment in which their employees could not possible [sic] perform to the required standards due to shortages of staff and basic support. Thus, the named Defendants are directly responsible for all breaches in the standards of care provided to Willie Finley. Plaintiff objects to Defendants’ Request for Admissions as a disingenuous attempt to further disrupt Plaintiffs discovery efforts, as Defendants will undoubtedly provide copies of Plaintiffs responses to the individuals referenced in the requests. Should Defendants do so, then these individuals are hereby advised that Plaintiff does not attempt to lay personal blame for the systemic failures of Defendants’ nursing home on any particular nonman-agement employee or former employee (i.e. floor nurses, certified nurses’ aides, nurses’ aides, housekeepers, maintenance workers or groundskeepers, cooks, dietary aides, etc.) It is Plaintiffs position, based on medical records, and information obtained in discovery, that nonmanagement employees could not provide the appropriate standard of care to Willie Finley because of the actions of the named Defendants. In other words, the named Defendants caused the breaches in the standard of care by any of their nonmanagement employees and are responsible for such breaches.

Each separate answer then said: “Denied based on Defendants [sic] obstruction of the discovery process.” Jordan’s amended response stated:

The injuries of Willie Finley as alleged in Plaintiffs Complaint do [sic] not happen as a result of any one individual’s failure or breach of the standard of care. Instead, these injuries were the result of the cumulative impact of acts and/or omissions. The vast majority of allegations in Plaintiffs Complaint support this notion. The development of Willie Finley’s injuries occurred over a period of days, weeks and months. Some of these injuries were a result of acts of omission, not commission. Practically speaking no one charts their failures. Although evidence of omissions does exist in the form of blanks on grid-type charting, the lack of initials/names in these blanks makes it impossible to determine who failed to act as required. Therefore, it is impossible in a case involving long-term custodial neglect to identify any individual at fault, other than those whose [sic] implemented the policies that led to the injuries as suffered by Willie Finley.
Defendants created an environment in which their employees could not possibly perform to the required standards due to shortages of staff and basic support. Thus, the named Defendants are directly responsible for all breaches in the standards of care provided to Willie Finley. Plaintiff states that, while it may be impossible to determine precisely which of these individuals participated in providing care to Willie Finley, and discovery is ongoing in the effort to make that determination, the individuals named in these requests (and particularly those individuals whose names or initials appear in his medical records from the nursing home and whose identity may be determined by Defendants with greater ease than the Plaintiff) may have deviated from the standard of care in providing or failing to provide care to Willie Finley, but Plaintiff specifically limits this answer and clarifies that any such deviation on any individual caregiver’s part was the direct result of both negligent and grossly negligent failures by the named parties in this suit, such failures include, but are not limited to their failure to provide sufficient staff so that appropriate care could be provided to all residents of the facility, including Willie Finley; Defendants’ failure to properly supervise and train the staff who were present; Defendants’ failure to provide care givers appropriate supplies necessary to provide appropriate care to the residents; Defendants’ failure to create and foster a work environment for the staff that would be conducive to providing appropriate care to all residents of the facility, including Willie Finley; and the abilities of the facility and time constraints of the staff present in the facility; and other such failures as are stated in the Complaint and as will be shown at the trial of this matter. Plaintiff has not sued any individual caregivers [sic] in this matter and has no intention of amending the Complaint to do so; nor does Plaintiff intend to report any such deviation by any individual care giver to any governmental authority — as doing so would be fundamentally unfair since the care givers involved were often required to work in deplorable conditions and without sufficient assistance so that the facility could make more money. Given and subject to the explanation above, Plaintiff admits that the named individual did not deviate from the applicable standard of care.
If for any reason the above explanation is excluded, then Plaintiff states she can neither admit or [sic] deny as Defendants have failed to provide necessary and requested discovery documents and failed to have staff chart their acts and/or omissions in a significant manner, such that Plaintiff can determine if this or any individual specifically was within the appropriate standard of care.
Although Plaintiff believes that this individual did not breach the standard of care based upon the statement set forth above, Plaintiff, after reviewing the information readily available and a reasonable inquiry is without sufficient information to either admit or deny this request and therefore denies it.

After reviewing the amended response, the court deemed Jordan’s answers admitted.

¶ 11. According to Rule 36, an answer to a request for admissions

shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his answer or deny only a part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny.... If the court determines that an answer does not comply with the requirements of this section, it may order either that the matter is admitted or that an amended answer be served.

M.R.C.P. 36(a). The Mississippi Supreme Court has explained that:

While Rule 36 is to be applied as written, it is not intended to be applied in Draconian fashion. If the Rule may sometimes seem harsh in its application, the harshness may be ameliorated by the trial court’s power to grant amendments or withdrawals of admissions in proper circumstances.... The purpose of the rule is to determine which facts are not in dispute. It is not intended to be used as a vehicle to escape adjudication of the facts by means of artifice or happenstance.

DeBlanc v. Stancil, 814 So.2d 796, 801-02(¶ 26) (Miss.2002) (citations omitted). Jordan contends that “the trial court’s order here did just the opposite [as what the rule is intended to do.]” Jordan argues that her amended answer constituted the sort of “qualified denial” that is anticipated by the rule. After reviewing her amended response, we must disagree.

¶ 12. Since the purpose of the rule is to determine “which facts are not in dispute,” we find that Jordan’s answer worked against the purpose of the rule. The amended answer is difficult to follow and wavers from position to position. At one point the answer states that the Appellees “created an environment in which their employees could not possibly perform to the required standards ” and that “the individuals named in these requests ... may have deviated from the standard of care,” but the answer then goes on to say that “[g]iven and subject to the explanation above, Plaintiff admits that the named individual did not deviate from the applicable standard of care.” Jordan’s answer then states that if “the above explanation is excluded, then Plaintiff states that she can neither admit or [sic] deny ...” and finishes by saying “[although Plaintiff believes that this individual did not breach the standard of care ... Plaintiff ... is without sufficient information to either admit or deny this request and therefore denies it.”

¶ 13. Jordan’s amended answer is not the qualified denial that is contemplated by the rule. If a party feels that she cannot “truthfully admit or deny the matter,” then the party may “set forth in detail the reasons why the answering party cannot” admit or deny the request. M.R.C.P. 36(a). In her amended response, Jordan at one point admits that the caregivers did not deviate from the appropriate standard of care, states at another point that the caregivers did deviate (but were forced to do so by corporate policy), and finally states that she has insufficient information to either admit or deny the matter. This response did little or nothing to “determine which facts are not in dispute.” Also of import is the fact that this jumbled response only came after the court had already ordered Jordan to provide a sufficient response to the Appellees’ request for admissions.

¶ 14. Jordan urges us to find in her favor, as her case is based on a shortage of staff. Therefore, she contends, any negligence resulted from omissions in Finley’s treatment and not from a breach of duty by any particular employee. However, Jordan’s own answer contradicts this reasoning when it states, for example, that the “employees could not possibly perform to the required standards.” If the employees could not perform to the required standard of care, then one of them must have violated the standard of care, even if the fault was corporate policy and not the employee’s personal negligence. We understand that Jordan’s theory of liability was that “it was the Defendants who created the dire circumstances.” However, that theory of liability did not require that Jordan give the insufficient response that she gave. If Jordan’s theory of liability was truly that no employee had ever breached the standard of care, and that Beverly had negligently contributed to Finley’s death, then the response should have been a firm admission that none of the caregivers listed had breached the standard of care, and other evidence should have been produced to show that, regardless, Finley suffered an untimely demise due to a lack of adequate care.

¶ 15. If Jordan had specific instances where something had happened to Finley through an employee’s breach of the standard of care, then that incident should have been included in the response with an unequivocal statement that the caregiver had in fact breached the standard of care. Instead, Jordan chose to pursue a course of attempting to state on the one hand that employees had breached the standard of care and on the other hand that no employee had breached the standard of care. The court was within its discretion in choosing to deem admitted such a non-responsive answer.

¶ 16. Given the discretion awarded to trial courts in discovery matters, we find that the court did not err in choosing to deem Jordan’s amended response admitted. The amended response was contradictory and not in compliance with the rule. We also note that the court did not first pursue the harsher sanction of deeming the responses admitted, but instead gave Jordan the opportunity to amend her response and comply with the dictates of Rule 36. The court did not abuse its discretion in deeming the amended response admitted, and, therefore, Jordan’s first suggestion of error is rejected.

2. Withdrawal of the Admissions

¶ 17. Jordan next contends that the court erred in refusing to allow her to withdraw the admitted response and substitute sufficient answers.

¶ 18. Rule 36 states that “the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.” M.R.C.P. 36(b). As with the court’s decision to deem the responses admitted, the court’s refusal to allow Jordan to withdraw the admissions is reviewed under an abuse of discretion standard. The analysis under Rule 36 requires that a court look at whether “the presentation of the merits of the action will be subserved [by allowing withdrawal]” and whether allowing withdrawal will cause prejudice to the party “who obtained the admission.” Id.

¶ 19. In the present case, Jordan’s motion to withdraw the admissions and replace them with new responses was submitted less than two weeks before trial was scheduled to begin, and only after the Appellees filed a motion for summary judgment. At the hearing for the withdrawal request, Jordan made it clear that she was now pursuing a different tactic, as she would contend in her new responses that almost all of the employees listed in the request failed to comply with the applicable standard of care. When asked by the court what prejudice they would suffer, the Appellees responded:

The fact that we’ve been preparing the case based on plaintiffs theory that they’ve been telling us all along that they don’t blame the care givers. Now they say they blame every single one of them. On Thursday of this of [sic] last week we got a witness list with 260 employees that they say they’re going to use to prove that none of the care givers complied with the standard of care. So basically the prejudice at this late point in the game, they’re changing theories on us, which affects the preparation of our case.

The Appellees also pointed out that the purpose of the request for admissions was to establish which employees Jordan believed had breached the standard of care, so that those particular employees could be questioned and deposed, a purpose that Jordan thwarted when she submitted non-responsive answers to the request for admissions. In response, Jordan’s attorney argued: “The injury here occurred in 1999 and 2000. The defendants owned this facility up until the middle of 2003. To say that they were prejudiced because they couldn’t talk to their people and figure out whether their people were at fault or not at fault under their theory, rings hollow, your Honor.” Jordan also suggested that she would be amenable to a continuance to give the Appellees adequate time to question the caregivers who were now listed as having fallen below the standard of care.

¶ 20. In ruling that the responses would not be withdrawn, the court pointed out that Jordan’s motion to withdraw the responses came less than two weeks before trial. The court further went on to explain that it found prejudice because:

it would be unfair prejudice for the defendants to have to respond to — in trial under the circumstances that they rightfully believe [sic] up until now that the answers were deemed to be admitted. And so they would have to prepare their witnesses in either direct examination or for cross-examination relating to the issues involving whether the particular care givers exercised the standard of care required.

¶ 21. Under the circumstances of this case, we find that the court did not abuse its discretion in denying Jordan’s motion to withdraw the admitted requests. The motion came less than two weeks before trial was set to commence, and only after Jordan had already been given the opportunity to bring her responses into compliance with Rule 36. The court did not err in finding that, under those circumstances, the Appellees would have been prejudiced by allowing Jordan to withdraw the admitted responses near the eve of trial. The court engaged in exactly the analysis that Rule 36(b) requires, and we find no fault with the court’s conclusions on the matter. Therefore, Jordan’s second contention of error is rejected.

3. Summary Judgment

¶ 22. Jordan argues in this issue that the court erred in granting summary judgment based on the admitted responses. Jordan specifically contends that “standard of care” is not defined in the request, and “what it means is open to debate. Plaintiff clearly reads the term to refer to whether the caregivers acted reasonably under the circumstances ... while Defendants seem to read the term as referring to whether Mr. Finley obtained the care to which he was entitled in spite of the deficient environment.” Jordan further argues that “ ‘standard of care’ is simply not an element of all of Plaintiffs causes of action. The complaint in this case alleged negligence, gross negligence and medical malpractice. Of these causes of action, only medical malpractice has compliance with a professional ‘standard of care’ as an element of the cause of action.” Jordan also contends that summary judgment should not have been entered because certain caregivers were left off of the admitted responses, namely Dwayne Gray. Finally, Jordan argues that summary judgment was improper as it did not answer the substance of her theory of the case:

Plaintiff has always contended that the individual care givers in this case delivered the best care that they could under the circumstances. They simply could not deliver appropriate care because of those circumstances, and those circumstances were created by Defendants’ corporate policies of placing profits over quality care. In Plaintiffs view, that means that the care givers did all that was reasonable under the circumstance [sic], thereby meeting the ‘standard of care,’ while Defendants systemically failed to provide the necessary staff, training and supplies a reasonable person would provide under the circumstances, and thereby deviated from the “standard of care.”

We find Jordan’s arguments on this point unpersuasive.

¶ 23. We review the grant or denial of a motion for summary judgment de novo. Powell v. Clay County Bd. of Supervisors, 924 So.2d 523, 526(¶ 6) (Miss.2006) (citing Miss. Farm Bureau Mut. Ins. Co. v. Walters, 908 So.2d 765, 768(¶ 9) (Miss.2005)). “A summary judgment motion is only properly granted when no genuine issue of material fact exists.” Walters, 908 So.2d at 768(¶ 9). We will review the record in “a light most favorable to the nonmoving party,” here Jordan. Powell, 924 So.2d at 526(¶ 10) (citing Rankin v. Clements Cadillac, Inc., 903 So.2d 749, 751(¶ 11) (Miss.2005)). If we find that no genuine issue of material fact exists, then we must reverse. Brooks v. Roberts, 882 So.2d 229, 232(¶ 7) (Miss.2004) (citations omitted).

¶ 24. For clarity’s sake, we will address each of Jordan’s specific arguments separately.

The Meaning of “Standard of Care”

¶ 25. We note first that Jordan never raised this issue with the court below, as no complaint was ever made that the meaning of “standard of care” in the request for admissions was ambiguous. As pointed out by the Appellees, Jordan’s “Response to Defendants’ Motion to Determine Sufficiency of Responses to Defendants’ Requests for Admissions” even acknowledged: “There is no question as to which standard of care is applicable to each Request.... ” Therefore, we find that Jordan is procedurally barred from raising this issue for the first time on appeal: “It is well settled that [we] will not address issues raised for the first time on appeal.” State Indus., Inc. v. Hodges, 919 So.2d 943, 947(¶ 9) (Miss.2006).

¶ 26. We further note that, even if this argument were not proeedurally barred, there is no merit to it. In Cole, a party submitted the following request for admissions: “Request No. 2: Please admit that Dr. Buckner did not deviate from the standard of care in her treatment of decedent.” . Cole, 819 So.2d at 530(¶ 8). On appeal, the appellant contended that the request did not comply with Rule 36 because it did not contain a preamble of fact defining “standard of care.” Id. at 530(¶ 7). The Mississippi Supreme Court ruled that the appellant’s argument was without merit: “The requests clearly apply the legal standard of care to the facts of the case. The term ‘standard of care’ is sufficient to serve as a preamble of fact.” Id. at 530(118). The meaning of “standard of care” in the present case is equally unambiguous and sufficiently applies “the legal standard of care to the facts of the case.”

¶27. The Mississippi Supreme Court has recognized a “standard of care” applicable to negligence cases: “The standard of care applicable in cases of alleged negligent conduct is whether the party charged with negligence acted as a reasonable and prudent person would have under the same or similar circumstances.” Donald v. Amoco Prod. Co., 735 So.2d 161, 175(¶ 48) (Miss.1999) (citations omitted) (emphasis added). In short, it is clear that the concept of a “standard of care” has been applied in Mississippi in the negligence context. We find no indication that there is not an applicable “standard of care” in the context of nursing home attendants and negligence. Therefore, there was a discernible meaning to the “standard of care” phrase in the request for admissions. A near-rephrasing of the above standard also appears in Jordan’s complaint in her negligence count, where she alleges: “Defendants owed a duty to residents, including WILLIE FINLEY, SR, to provide adequate and appropriate custodial care and supervision, which a reasonably careful person would provide under similar circumstances.”

Dwayne Gray

¶ 28. Although Jordan’s attorney intimated to the court below that there were employees other than Gray who had been left off the request for admissions, no further names have been provided, either below or on appeal. While it is true that Gray was left off of the request, his exclusion is not sufficient to defeat the motion for summary judgment.

¶29. Gray was employed at Beverly until sometime around October of 1999, at which time the record indicates that he was terminated for poor work performance. By contrast, the deposition testimony of Dr. Leonard Williams, an expert employed by Jordan, indicates that Finley’s injuries did not start occurring until late November of 1999, after Gray had already been terminated. Therefore, Gray’s testimony was irrelevant and insufficient to present a genuine issue of material fact.

Theory of Liability

¶ 30. In order to succeed on her claims, Jordan must show that any negligence on the part of Beverly was a proximate cause of Finley’s injuries. However, nothing in the record indicates that any action or inaction on the part of Beverly was a proximate cause of Finley’s injuries. Assuming that Jordan is correct, and that there were times when the facility was short-staffed and patients were left unattended, nothing in the record indicates that Finley himself suffered as a result of the shortage in personnel. The former employees who testified regarding the shortages in staff were able only to testify about the general conditions at the Beverly facility. None of them could recall any specific instance where Finley received substandard care as a result of shortages in staffing or lack of supplies. In fact, most of the staff who were deposed could recall very little specifically about Finley.

¶ 31. While there was testimony to the effect that the personnel caring for Finley were short-staffed at certain times, no specific testimony was given regarding Finley. For example, Ardean Bullock, a certified nursing assistant who worked at Beverly Northwest while Finley was there, was asked: “During the time ... Mr. Finley was there, how common was it for the 11-to-7 shift to be short-staffed?” Her response was: “It was just about all the time.” When asked how the short-staffing affected Beverly’s care of its patients, Bullock testified that: “They couldn’t get turned like they’re supposed to, for one thing. They couldn’t go — you couldn’t go every two hours, you know, short of staff, go dry them and turn them every two hours like they’re supposed to.” However, Bullock pi'ovided no testimony specific to Finley. Her responses about the effect of the short-staffing on the nursing home patients was that it harmed “them.” No indication is given in her response that Finley specifically suffered any harm as a result of the short-staffing.

¶ 32. The only caregiver who indicated that she had a significant personal recollection of Finley was Clarice Bowman, who testified that Finley “would take a lot of care.” She then went on to testify that Finley’s family visited often, and that patients who had family that visited often were likely to receive more care because: “If a family showed that they really cared and was concerned about the resident, then, yes, you know, it would seem like it would be more attention, that’s from nurses and all, focussed [sic] on that resident.” This testimony not only fails to provide any causation evidence regarding Finley’s injuries, but actually undermines Jordan’s argument by indicating that, if anything, Finley received more care than other residents because he had family that visited him regularly. When asked about the severity of Finley’s pressure ulcers, Bowman testified: “I can’t speak on that because I don’t know.” When asked about the waist restraints that were used on Finley and that, according to Jordan, might have contributed to the falls he suffered while at Beverly Northwest, Bowman testified: “I couldn’t rightly recall Mr. Finley being tied in the bed.”

¶ 33. The record also contains a survey by the Mississippi Department of Health, finding numerous problems at Beverly Northwest. However, that survey was conducted after Finley died, and made no specific reference to Finley. As with the testimony of Finley’s caregivers, nothing in the survey served to link any negligence on Beverly’s part with Finley’s injuries.

¶ 34. Jordan also presented no evidence supporting causation through her expert witnesses. In her “Designation of Experts,” she submitted that Shannon Morgan, a nurse, would testify that: “the staff [at Beverly Northwest] failed to prevent pressure ulcers.... The staffs failure to adequately provide the care necessary ... resulted in the development of multiple pressure ulcers.... ” There is no indication that Morgan would testify that the lack of staff at Beverly caused Finley’s injuries; in fact, it was indicated that Morgan’s testimony would be that the failures of staff at Beverly led to Finley’s injuries. The same designation indicated that Dr. Williams would testify that: “The staff failed to provide the treatment necessary to prevent the development of several pressure ulcers.... ” Again, there was no indication that any of the injuries were caused by an absence of staff; only the failure of the treating caregivers to meet the standard of care was addressed.

¶ 35. Dr. Williams’s deposition testimony is no more helpful to Jordan. When asked, “what is the opinion or opinions that you have reached in this case,” Dr. Williams responded,

Beverly ... had fallen below the standard of care ... first in the aspect of their appropriateness with coming up with a plan to try and prevent his falls, which I think was inadequate.... Mr. Finley ... had become very seriously dehydrated without — which reflects that the staff were not providing adequate hydration and fluids to him and that the staff themselves were not quite aware of his condition .... And during his stay at the facility, [Finley] lost a considerable amount of weight without the facility being cognizant.... And the staff failed to render account that he was developing these contractures.

(emphasis added). When asked about the nursing staffs deviation from the standard of care, Dr. Williams explained that the lack of any mention of turning Finley in the nursing notes for several days led him to believe that “care was not being given.” However, this conclusion only indicates that whatever staff was there was either not turning Finley, or was not documenting their care of Finley. In the same testimony, Dr. Williams pointed to another failure of staff to meet the standard of care: “Having [already] found that pressure ulcer, the nursing staff should have been, you know, put on notice or put themselves on notice that there was a problem here, and we should have clear reflection in the nursing notes that they were aware of this pressure ulcer.” Dr. Williams did testify that Beverly failed to institute a care program to prevent Finley’s falls, but nothing in Dr. Williams’s testimony indicates whether this was a failure on the part of management, or the failure of a particular staff member who was supposed to institute care plans. We note that Dr. Williams then proceeded to testify that: “Even though they [the staff] said on the 17th they needed to care plan for falls, they don’t do it .... They are even indicating that there is some possible relationship between the soft waist restraints and the falls.” (emphasis added).

¶ 36. Morgan testified during her deposition that she believed that: “There wasn’t enough staff there to give the care,” but this testimony could only be based upon the survey conducted after Finley left the facility or upon depositions by others, as Morgan had no first-hand knowledge of the staffing at Beverly Northwest. Basically, she testified that, after reviewing Finley’s charts, the survey, and the other depositions, she believed that Finley’s injuries were due in part to a shortage in staffing. However, the rest of her testimony indicates only that there were pressure sores and it was not clear that the sores were properly treated. In other words, Morgan’s testimony supported either the theory that there was a lack of staff or that there was staff there that were not doing their job properly. Her conclusion that the former was the problem could only have been based upon the other depositions and the survey, as she had no personal knowledge to support her conclusion. Therefore, her testimony, was not sufficient to avert summary judgment.

¶ 37. Since there is no evidence in the record to create a genuine issue of material fact regarding whether Beverly was a proximate cause of Finley’s injuries, Jordan’s claims were properly dismissed at summary judgment.

Jp. Administrator and Licensee

¶ 38. In this point of error, Jordan contends that the court erred in finding that Mississippi law does not recognize a cause of action against Banks and Sinclair, respectively the licensee and the administrator of Beverly Northwest. Jordan contends that Rein v. Benchmark Constr. Co., 865 So.2d 1134, 1147(¶ 42) (Miss.2004) “has already settled this issue.”

¶ 39. In Rein, fire ants invaded a nursing home facility and a resident was “attacked, bitten and gravely injured by fire ants while lying in her bed at Silver Cross [the nursing home]. As a result, she died three days later.” Id. at 1137(¶ 3). The Mississippi Supreme Court found that the trial court erred in granting summary judgment to Natural Accents, a landscaping company that serviced Silver Cross, when “the proposal from Natural Accents to Silver Cross ... indicates that Natural Accents did indeed contract to provide ‘ant bed control.’ ” Id. at 1147(¶ 42). Jordan contends that “Thus, this Court has already held that the jury, not the court, should determine whether a landscaping company owes a duty to a resident of a nursing home. Clearly the trial court should have done likewise in this case and denied motions to dismiss the licensee and administrator based on their claim that no duty exists.”

¶ 40. Jordan argues that, even if Rein is not applicable, “the trial court should be reversed because administrators and licensees clearly do owe legal duties to residents .... Administrators and licensees are specifically charged with the duty to provide these [necessary] resources to residents, not to nursing home conglomerates who own the facilities.” In other words, Jordan contends that nursing home administrators and licensees owe a duty not only to the corporation that owns the nursing home, but also to the residents who live in the nursing home: “In essence, [the administrators and licensees] are the captains of the ship, the drivers of the truck, and the engineers building the bridge. Thus, they have independent duties to the residents to ensure that sufficient resources are available to provide the day-today care necessary for those residents.”

¶ 41. We find that we do not need to address Jordan’s arguments on this point because the matter is decided as a result of our analysis above. Jordan’s admissions conclusively found that none of the caregivers assigned to Finley had breached the standard of care. No genuine issue of material fact regarding causation has been produced by Jordan. In the absence of causation and a breach of the standard of care, no action can be maintained against Banks or Sinclair. Therefore, for the same reason as our analysis in Issue Three, we find that there was no error on the part of the court in granting summary judgment on behalf of Banks and Sinclair.

¶ 42. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . For clarity's sake, the Defendants below will be referred to as "the Appellees." Although Jordan sued on behalf of the estate, we refer to the Plaintiff below as "Jordan.”

      . Dr. Williams indicated that Finley had fallen several times while Gray was employed there. However, Dr. Williams also testified that Finley sustained no injuries from these falls.


source: Caselaw Access Project

author: LEE, P.J.,

license: Public Domain

text:
    George R. SCHWARTZ, M.D., Appellant v. Wayne HYNUM, Appellee.
    No. 2004-CA-02530-COA.
    Court of Appeals of Mississippi.
    July 18, 2006.

      Gary Dale Thrash, Jackson, attorney for appellant.
    Wayne Hynum, attorney for appellee.
    Before LEE, P.J., SOUTHWICK and ISHEE, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Wayne Hynum, an attorney residing in and practicing in Hattiesburg, contacted Dr. George Schwartz of Santa Fe, New Mexico, to hire Dr. Schwartz as an expert witness for litigation pending in Texas. Dr. Schwartz and Hynum conversed via telephone and via mail several times before Hynum traveled to confer with Dr. Schwartz in New Mexico. At the end of his services, Dr. Schwartz submitted a bill to Hynum in the amount of $14,628.49. This fee was in addition to funds already paid by Hynum to Dr. Schwartz. Hynum refused to tender payment, and Dr. Schwartz filed suit in New Mexico.

¶ 2. Hynum filed a special appearance pro se in New Mexico contesting jurisdiction, and a hearing on the matter was scheduled for August 26, 1998. Hynum failed to appear, either in person or via counsel. The trial court found that Hy-num had conducted business in New Mexico by contracting with Dr. Schwartz; by seeking, obtaining and discussing Dr. Schwartz’s professional medical opinion; and by hiring Dr. Schwartz to testify in the case in Texas. Finding that Hynum had sufficient minimum contacts with New Mexico for the court to exercise personal jurisdiction, the court denied the special appearance. Dr. Schwartz then secured a default judgment against Hynum. Hynum did not appeal either the order denying the special appearance, or the default judgment.

¶ 3. In March 1999, Dr. Schwartz enrolled the New Mexico judgment with the Forrest County Circuit Court Clerk. On April 28, Hynum filed a response to the enrollment, arguing that the judgment was not entitled to full faith and credit as New Mexico lacked personal jurisdiction over him because he did not have sufficient minimum contacts with New Mexico to justify the exercise of jurisdiction. Hy-num also argued that the judgment was the result of Dr. Schwartz’s false representations regarding the services tendered by Dr. Schwartz, as well as the terms of his service.

¶ 4. In December 2002, after a hearing on the matter, the Forrest County Circuit Court entered a judgment striking the judgment from the judgment rolls of Forrest County. The court found that Dr. Schwartz failed to present evidence in support of his claim at the hearing and denied the judgment full faith and credit.

¶ 5. It is from this judgment that Dr. Schwartz appeals, arguing two assignments of error: (1) that the trial court erred in denying the judgment full faith and credit and (2) that the trial court erred in permitting re-litigation of the jurisdictional issue.

¶ 6. Finding error, we reverse and remand.

STANDARD OF REVIEW

¶ 7. “Our review of jurisdictional issues is essentially de novo: ‘In making this determination, this Court is in the same position as the trial court, since all facts are set out in the pleadings or exhibits, and the chancellor may be reversed if he erred whether the error was manifest or not.’ ” McDaniel v. Ritter, 556 So.2d 303, 308 (Miss.1989) (quoting MISS CAL 204, Ltd. v. Upchurch, 465 So.2d 326, 330 (Miss.1985)).

I. DID THE TRIAL COURT ERR IN REFUSING TO AFFORD FULL FAITH AND CREDIT TO THE JUDGMENT FROM NEW MEXICO?

¶ 8. The enrollment of foreign judgments is governed by statute in Mississippi. See Miss.Code Ann. Section 11-7-301 through 309 (Rev.2004). In determining whether a foreign judgment should be enrolled, a court must first resolve whether the attempt to enroll involved only foreign judgments. See § 11-7-301; see also Davis v. Davis, 558 So.2d 814, 817 (Miss.1990). As the only judgment was rendered in New Mexico, we answer this question in the affirmative. The court must next determine whether the judgments are entitled to full faith and credit. Id.

¶ 9. Pursuant to the United States Constitution, Art. IV, Sec. 1, Mississippi must give full faith and credit to all final judgments of other states and federal courts unless (1) “the foreign judgment itself was obtained as a result of some false representation without which the judgment would not have been rendered,” Reeves Royalty Co., Ltd. v. ANB Pump Truck Serv., 513 So.2d 595, 598 (Miss.1987), or (2) “the rendering court did not have jurisdiction over the parties in the subject matter.” Sollitt v. Robertson, 544 So.2d 1378, 1381 (Miss.1989). To challenge a foreign judgment on either of these two grounds, the challenge must be timely made.

¶ 10. Dr. Schwartz enrolled the judgment on March 3, 1999, and the clerk mailed notice of the enrollment on that date. Hynum then had twenty days to contest the enrollment of the judgment. See Davis, 558 So.2d at 819; Miss.Code Ann. § 11-7-305(3) (providing that no execution shall issue for twenty days after the enrollment of a foreign judgment). Hy-num’s response was filed on April 28, 1999, outside the twenty-day limit. Thus, we find that Hynum’s defenses to the enrollment which alleged false representations by Dr. Schwartz were not properly before the trial court.

II. DID THE TRIAL COURT ERR IN PERMITTING RE-LITIGATION OF THE JURISDICTIONAL ISSUE?

¶ 11. Dr. Schwartz argues that res judicata applies, thus the Forrest County Circuit Court erred in allowing Hynum to re-litigate the validity of New Mexico’s jurisdiction.

¶ 12. The principle of res judica-ta operates to avoid multiplicity of litigation. Little v. V & G Welding Supply, Inc., 704 So.2d 1336, 1337(¶8) (Miss.1997). “Res judicata bars all issues that might have been (or could have been) raised and decided in the initial suit, plus all issues that were actually decided in the first cause of action.” Estate of Anderson v. Deposit Guar. Nat. Bank, 674 So.2d 1254, 1256 (Miss.1996).

¶ 13. “The principles of res ju-dicata apply to questions of jurisdiction as well as to other issues whether the questions relate to jurisdiction of the subject matter or jurisdiction of the parties.” Dep’t of Human Servs. v. Shelnut, 772 So.2d 1041, 1045(¶ 13) (citing Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982)). In determining whether a judgment constitutes res judica-ta regarding the rendering court’s personal jurisdiction over the respondent, it matters not that the respondent appeared specially, reserving submission to the court’s jurisdiction. Global Oceanic Enter., Inc. v. Hynum, 857 So.2d 659, 662(¶ 11) (Miss.2003) (citing Baldwin v. Iowa State Traveling Men’s Ass’n, 283 U.S. 522, 524-25, 51 S.Ct. 517, 75 L.Ed. 1244 (1931)). “[The special appearance] would be important upon appeal from the judgment....” Id.

¶ 14. For res judicata to apply to the issue of jurisdiction, a previous challenge on the jurisdictional claim is necessary. Global, 857 So.2d at 662(¶ 12). A defendant has three options when attempting to challenge jurisdiction. A defendant may ignore the summons and complaint, and, if a default judgment is entered against him he may collaterally attack the judgment during the proceedings to enforce the judgment. Shelnut, 772 So.2d at 1045-46(¶ 14). A defendant may also voluntarily submit to the jurisdiction of the foreign court, waiving the court’s lack of jurisdiction. Id. Finally, a defendant may submit himself to the jurisdiction of the court for the limited purpose of challenging jurisdiction. Id. By submitting to a court’s jurisdiction for the limited purpose of contesting that court’s jurisdiction, “the defendant agrees to abide by that court’s determination on the issue of personal jurisdiction: [tjhat decision will be res judi-cata on that issue in any further proceedings.” Ins. Corp. of Ireland, 456 U.S. at 706, 102 S.Ct. 2099.

¶ 15. In entering a special appearance in New Mexico for the purpose of contesting jurisdiction, Hynum agreed to abide by New Mexico’s ruling on the jurisdictional issue. Such an appearance preserved the right to contest jurisdiction on direct appeal, but not the right to attack the matter in a collateral proceeding. See Shelnut, 772 So.2d at 1047(¶ 18). Hynum could have appealed the decision of the foreign court, but he chose to do nothing. Accordingly, Hynum is bound by the foreign court’s finding of personal jurisdiction.

¶ 16. Hynum also urges that he was denied due process of law because he never received notice of the hearing on his motion for a special appearance. Hynum cites, discusses and misconstrues numerous cases from the United States Supreme Court, as well as several cases from the Mississippi Supreme Court, none of which are on point. The record contains a “Request for Hearing” submitted by Dr. Schwartz’s attorney in New Mexico, as well as a “Notice of Hearing” issued by the secretary of the assigned foreign judge. Both indicate that they were served upon the attorneys of record or “parties pro se entitled to notice.” We are unpersuaded by Hynum’s argument.

¶ 17. We find that the trial court erred in denying full faith and credit to the judgment; we further find that the trial court erred in ordering the judgment stricken from the Judgment Roll of Forrest County. The judgment of the Forrest County Circuit Court is hereby reversed and remanded with instruction to re-enroll the judgment on the Judgment Roll of Forrest County.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY IS REVERSED AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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


text:
    Gerald LANDER, Appellant v. SINGING RIVER HOSPITAL SYSTEM; Ocean Springs Hospital, Appellee.
    No. 2004-CA-02345-COA.
    Court of Appeals of Mississippi.
    July 18, 2006.

      Susannah Ross Cooley, David A. Bowling, attorneys for appellant.
    Howard Lamoyne Smith, Brett K. Williams, Thomas L. Musselman, Pasca-goula, attorneys for appellee.
    Before LEE, P.J., SOUTHWICK and ISHEE, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. Gerald Derrick Lander filed suit against Ocean Springs Hospital and Singing River Hospital System pursuant to the Mississippi Tort Claims Act due to injuries sustained while Lander was being treated at Ocean Springs Hospital (the Hospital). Lander alleged that the Hospital’s staff negligently managed his intravenous therapy, resulting in sepsis, surgery and nerve damage.

¶ 2. Pursuant to the Mississippi Tort Claims Act, a bench trial was held. See Miss.Code Ann. Sections 11-46-1 through 23 (Rev.2002). After considering the evidence and the arguments submitted by counsel, the trial court entered a judgment in favor of the Hospital.

¶ 3. It is from this ruling that Lander appeals arguing the following, which we quote verbatim:

(1) whether the deferential standard of review of the trial judge’s findings is grounds to affirm the ruling that there were no deviations from the standard of care where multiple deviations are established by simply comparing the care documented by the Hospital to the admitted standards for that care; (2) whether the trial court was manifestly wrong and clearly erroneous in finding that there was no violation of the requirements that the tubing and site location be changed every seventy-two hours; (3) whether the trial court’s failure to find that the IV which caused the infection had been in the antecubital fos-sa long over the seventy-two hour limit was manifestly wrong and lacked substantial evidentiary support; (4) whether the trial court’s ruling ignored the gross misconduct of the nurse tending to Gerald Lander once the problem with the IV surfaced; and (5) whether the trial judge’s ruling that there was no injury caused by deviations from the standard of care lacks substantial evidentiary support, is manifestly wrong and is erroneously based on evidence which merely pertained to the extent of the injury.

¶ 4. The thrust of Lander’s five assignments of error can be framed as follows: whether the trial court’s findings of fact and conclusions of law are manifestly wrong and clearly erroneous. Finding no error, we affirm.

FACTS

¶ 5. On August 21, 2000, Lander sought emergency medical treatment at Ocean Springs Hospital for abdominal pain. Lander was admitted to the Hospital and remained there until he was discharged on September 8, 2000. Lander’s pain was attributed to ulcers, and as part of his treatment he received an intravenous line.

¶ 6. Throughout his treatment Lander received four TVs. The first was inserted into his right antecubital fossa, or crease in the inner elbow of the right arm. This IV was removed on August 24, when a second IV was inserted into Lander’s left forearm. This IV was removed the next day and a third IV was inserted into Lander’s left inner arm, where it remained until August 26. Lander’s fourth IV was placed in his upper right arm on August 26. This IV remained in place for approximately ninety-six hours.

¶ 7. At 8:25 the morning of August 30, Jennifer Green, one of the Hospital’s registered nurses, made a note on Lander’s chart that his IV site was slightly red. Green testified that at 10:15 that morning Lander again complained about his arm, which was red and sore when touched. Green testified that she removed the IV and unsuccessfully attempted to reinsert an IV in another area. Green, as well as other nurses from the Hospital, testified that she had previously had difficulty inserting an IV in Lander. At 1:30 that afternoon, Lander registered a fever of 100.9 degrees. At 6:00 p.m. Lander registered a fever of 103.6, and Green contacted Dr. John McKee, who was making rounds at the Hospital. The following day, Dr. Okeehukwu Ekenna diagnosed Lander with right antecubital vein thrombosis and abscesses.

¶ 8. On September 1, Lander underwent surgery to drain the abscess and reconstruct the vein in his right arm. Lander filed suit against the Hospital, alleging that he sustained nerve damage due to the abscess and subsequent surgery.

STANDARD OF REVIEW

¶ 9. “A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor,” and the judge’s findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence. Puckett v. Stuckey, 633 So.2d 978, 982 (Miss.1993). This Court will respect the lower court’s findings of fact when they are supported by reasonable evidence in the record and are not manifestly wrong. Allied Steel Corp. v. Cooper, 607 So.2d 113, 119 (Miss.1992). Additionally, when sitting as the finder of fact, the trial judge has the sole authority for determining the credibility of witnesses. Yarbrough v. Camphor, 645 So.2d 867, 870 (Miss.1994).

DISCUSSION OF THE ISSUE

I. ARE THE TRIAL COURT’S FINDINGS OF FACT AND CONCLUSIONS OF LAW MANIFESTLY WRONG AND CLEARLY ERRONEOUS?

¶ 10. In a medical malpractice action, the plaintiff bears the burden of proof and must show the defendant’s negligence by a preponderance of the evidence. Powell v. Methodist Health Care Jackson Hosps., 856 So.2d 353, 355(¶ 11) (Miss.Ct.App.2003). To succeed in his case, Lander must prove four elements. First, he must prove that the defendant had a duty to act in accordance with “a standard of reasonable care so as to prevent injury to a foreseeable plaintiff.” Boyd v. Lynch, 493 So.2d 1315, 1319 (Miss.1986). Second, the plaintiff must then prove that the defendant failed to conform to the appropriate standard of care, also known as “the breach of duty” to the plaintiff. Id. Third, the plaintiff must prove that this breach proximately caused his injury. Id. Finally, the plaintiff must prove that he suffered actual harm or injury as a result of the defendant’s negligent conduct. Id.

¶ 11. The trial court found that Lander failed to prove that the Hospital breached its duty to him. Lander points to the Hospital’s “Peripheral IV Therapy Clinic Practice Guideline,” which instructs the nurse to “[pjerform site care and tubing change (primary and secondary) [every] 72 hrs.” Lander argues that the Hospital was negligent in leaving IV number four in his arm for approximately ninety-six hours, resulting in infection and necessitating surgery.

¶ 12. We disagree. There was testimony that nurses must use discretion in deciding whether to remove an TV, as the veins of some patients, such as Lander, were difficult to puncture. Tom Meyer, Lander’s expert witness on nursing, testified in his deposition that there were “circumstances where a nurse would be prudent to change [an IV] out at seventy-two hours, and there [were] circumstances where a nurse might find it prudent to leave it in as long as ninety-six [hours].” Meyer agreed that such a decision would be left to the judgment of the nurse.

¶ 13. Mandy Lewis also testified as an expert in the field of nursing. Lewis noted that the nurses were repeatedly unable to insert the necessary TV's into Lander’s arms, and the nurses had to use a smaller gauge needle than was usually used on patients of Lander’s age, health and weight. Lewis further testified that a nurse should not automatically remove an IV simply because it had been used for seventy-two hours, as futile attempts to reinsert the IV would cause patient discomfort. During his deposition Dr. Eken-na testified that seventy-two hours was a guideline, subject to the patient’s veins and the nurse’s site inspections and site care.

¶ 14. Lander argues that the nurses failed to document site care and tubing changes, thus it should be presumed that such care did not occur. This argument lacks support in the law as well as the facts of this case. Green testified that the nurses would often change the tubing on the IV and mark the tubing with a bright marker indicating the time and date that the new tubing was installed. Green testified that every tube change was not indicated on patient charts because the nurses would use the colors on the tubing to indicate when the tubing should be replaced. The trial court found this testimony to be persuasive.

¶ 15. Contending that the record supports a finding that IV number four was the source of the infection, Lander next argues that the court erroneously found that IV number one was the source of the infection. Dr. Brian Pitre, who operated on Lander’s vein, testified that infections usually originate from sites “further upstream.” Dr. William Knight, Lander’s physiatrist, testified that venous drainage “typically goes up as opposed to down.” Dr. Ekenna stated during his deposition that, depending on the patient’s ability to fend off infection, abscesses usually appear as early as two days or as late as two weeks after a puncture. Dr. Ekenna further testified that it “would be very unusual ... unless you injected dirt” for an abscess such as Lander’s to develop within a matter of hours. We cannot agree that the court’s finding that the abscess resulted from IV number one, which was removed six days prior to the appearance of the abscess, lacks substantial, credible, reasonable evidence.

¶ 16. Lander further argues that, even if IV number one produced the abscess, the court erred in failing to find that the Hospital was negligent in treating the infection. This assertion is simply not supported by the record before this Court. Dr. Ekenna testified that both phlebitis and abscesses are risks of intravenous therapy. Nurse Green’s notes indicate that when she removed the fourth IV, the site had yellow drainage, she applied a band-aid and elevated Lander’s arm in accordance with her training and Hospital policy. Lander argues that the drainage should have alerted Green to the presence of an infection. Dr. Randy Roth testified that the drainage was probably serous fluid and not pus, as pus tends to be white and serous fluid is yellow. Dr. Roth also testified that serous fluid is not indicative of an infection. Dr. Roth testified that infection is a risk of IV therapy, and the development of an infection does not indicate a deviation from the standard of care. The record supports the trial court’s conclusions, and we decline to find that the trial court’s findings lack credible evidence.

¶ 17. The trial court concluded that Lander had failed to prove that the treatment he received was the proximate cause of his alleged injuries. Dr. Knight was the only witness who attributed Lander’s pain to the IV treatment at the Hospital, and this was based upon Lander’s assertion that he had suffered a nerve injury because the Hospital staff left the IV in his arm in excess of seventy-two hours.

¶ 18. Notably, Lander was involved in an automobile accident in 2004 and sought treatment from Dr. Cesar Rocca, a physician in Alabama. Lander did not inform Dr. Rocca of the pain, tingling and numbness which he attributed to the surgery, and Dr. Rocca’s examination of Lander’s arm did not reveal any such symptoms. The record reflects that Lander has a long history of securing pain medications from multiple doctors at the same time. Numerous doctors indicated that Lander exhibited the behavior of a person who sought drugs for non-medical reasons. As the trier of fact, a trial judge sitting without a jury determines the credibility of witnesses. Yarbrough, 645 So.2d at 870. The trial court obviously found Lander’s testimony to be unpersuasive, and such a finding rested within its discretion.

¶ 19. We cannot agree that the trial court’s findings lack substantial, credible evidence. As such, we affirm.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Joe Henry COTTON, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-02161-COA.
    Court of Appeals of Mississippi.
    July 18, 2006.

      John D. Watson, Southhaven, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before LEE, P.J., SOUTHWICK and ISHEE, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Between 9:30 p.m. and 10:00 p.m. on April 16, 2004, Sheila Bridges was shot multiple times as a she sat in her car at the Commons Apartment in Walls. Michael Dye, who lived in an apartment complex adjacent to the Commons, witnessed the shooting as he stood smoking a cigarette in the balcony of his apartment. Dye testified that he saw a man run from behind a building towards Bridges’s car and fire multiple shots into her windshield. Dye testified that he saw the man run further into the complex after the shooting.

¶ 2. Katherine Logan lived at the Commons and testified that she heard the shots as well. Three to four minutes after hearing the shots, she went out on her porch and observed a black male in a bi-colored, horizontally-striped shirt. Minda Griffin was visiting George Miller at the Commons that evening, and both Miller and Griffin testified that they heard shots. Both witnessed a man jog towards Miller’s building and throw something into one of the complex’s ponds. Both Miller and Griffin testified that they heard the object splash as it hit the water. The man then ran back towards the building where Griffin and Miller stood, raising his empty hands as he ran below the balcony where they stood. Griffin was able to identify Joe Henry Cotton, the father of Bridges’s daughter, from a photographic lineup; however, at trial she testified that Cotton was not the man she saw running that night. Miller identified Cotton in a photographic lineup, and at trial he testified that Cotton was the man he saw that evening.

¶ 3. The police discovered a .357 magnum pistol in the area which Miller and Griffin indicated Cotton had thrown an unidentified object. The serial number on the gun matched the serial number on a gun Cotton had retrieved from a pawn shop days prior to the shooting.

¶ 4. Cotton was indicted for Bridges’s murder and was convicted by a jury in the Desoto County Circuit Court on September 29, 2004. It is from this conviction that he appeals, arguing the following errors: (1) the trial court erred in rejecting Cotton’s manslaughter instruction; (2) the trial court erred in admitting pictures of the victim into evidence; and (3) the trial court erred in denying Cotton’s motion for a directed verdict and motion for a new trial.

¶ 5. Finding no error, we affirm.

I. DID THE TRIAL COURT ERR IN REJECTING COTTON’S MANSLAUGHTER INSTRUCTION?

¶ 6. When considering challenges to jury instructions, our standard of review requires the appellate court to avoid considering instructions in isolation, but rather the court should consider them as a whole for determining whether the jury was properly instructed. Comby v. State, 901 So.2d 1282, 1288(¶ 15) (Miss.Ct.App.2004). “Defects in specific instructions do not require reversal ‘where all instructions taken as a whole fairly — although not perfectly — announce the applicable primary rules of law.’ ” Burton ex rel. Bradford v. Barnett, 615 So.2d 580, 583 (Miss.1993) (citations omitted).

¶ 7. Cotton argues that the trial court erroneously rejected his proposed manslaughter instruction; however, while a defendant is entitled to have the jury instructed regarding his theory of the case, the court may properly refuse an instruction if it states the law incorrectly, is covered elsewhere in the instructions, or is without an evidentiary foundation. Heidel v. State, 587 So.2d 835, 842 (Miss.1991) (citations omitted). The State argues that the trial court properly rejected the proposed instruction because there was no evidence to support an instruction on manslaughter. We agree.

¶ 8. Mississippi Code Ann Section 97-3-35 (Rev.2000) provides that “[t]he killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner; or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense, shall be manslaughter.” Nothing in the record indicates that Cotton killed Bridges in the heat of passion. Indeed, Cotton’s testimony was that he did not see, much less shoot, Bridges that night. Cotton further testified that he last saw Bridges three days prior to her death and that the meeting was amicable. Cotton testified that he helped Bridges with the oil and water levels in her car and that the two discussed buying their daughter some clothes. We further note that the record is devoid of any evidence indicating that their relationship was contentious. Nothing in Cotton’s testimony or the testimony of the other witnesses supports an instruction that Cotton killed Bridges in the heat of passion or in self-defense. This issue is without merit.

II. DID THE TRIAL COURT ERR IN ADMITTING PICTURES OF THE VICTIM INTO EVIDENCE?

¶ 9. In reviewing the admission of pictures depicting gruesome crime scenes, we apply the familiar abuse of discretion standard. Chatman v. State, 761 So.2d 851, 854(¶ 11) (Miss.2000).

¶ 10. Cotton argues that the court erred in admitting photographs of the victim into evidence. Cotton does not explicitly indicate which photographs are objectionable, but we deduce that his argument applies to all of the pictures containing images of Bridges after the shooting, specifically Exhibits 12, 15, 20, 25, 28, 29, and 30. Exhibits 12, 20, and 25 are photographs taken from the hood of Bridges’s vehicle while Bridges’s body was still in the car, showing the six bullet holes in the windshield. Exhibits 15, 28, 29, and 30 are pictures of the bullets’ entry points, including Bridges’s leg and chest. Cotton argues that the pictures were not relevant to the issue of whether Cotton was guilty of murder by deliberate design. Cotton also argues that even if the pictures were relevant, the prejudicial value outweighs any probative value.

¶ 11. The admissibility of photographs rests within the discretion of the trial court. Walters v. State, 720 So.2d 856, 861(¶ 12) (Miss.1998); Brown v. State, 690 So.2d 276, 289 (Miss.1996); Shabazz v. State, 729 So.2d 813, 823(¶28) (Miss.Ct. App.1998). Reversal is only proper when it is clear the court abused its discretion. Chatman, 761 So.2d at 854(¶ 11). We disagree that the photographs are overly gruesome. While the pictures depict the deceased, the entry wounds are small and the amount of blood is minimal. Additionally, while Exhibits 12, 20 and 25 contain images of Bridges in the vehicle, her face and body are obscured by the fragmented windshield.

¶ 12. Photographs have evidentia-ry value where they (1) aid in describing the circumstances of the killing and the corpus delicti, (2) describe the location of the body and cause of death, (3) and supplement or clarify witness testimony. Westbrook v. State, 658 So.2d 847, 849 (Miss.1995) (internal citations omitted). The photographs sub judice fulfill all three of these criteria. The pictures depict the circumstances of the shooting, the location of the body and the cause of death, specifically that Bridges was killed while sitting in her car. The pictures also supplement and clarify the testimony of the crime-scene investigators regarding the location of the wounds, the trajectory of the bullets, and the number of the bullets. The pictures further supplement the testimony regarding the cause and manner of death.

¶ 13. Mississippi Code Annotated Section 97—3—19(l)(a) (Rev.2000) provides, “The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases: (a) When done with deliberate design to effect the death of the person killed, or of any human being....” The number of shots, the number of wounds, and the concentration of the bullet holes on the driver’s side of the vehicle are all relevant as to whether Cotton killed Bridges under Section 97-3-19(l)(a). We find this issue to be without merit.

III. DID THE TRIAL COURT ERR IN DENYING COTTON’S MOTION FOR A DIRECTED VERDICT AND MOTION FOR A NEW TRIAL?

¶ 14. “The standard of review for a denial of a directed verdict, peremptory instruction and a JNOV are identical.” Hawthorne v. State, 835 So.2d 14, 21(¶ 31) (Miss.2003). These motions challenge the legal sufficiency of the evidence, and as such we review the ruling on the last occasion the challenge was made, in this instance the motion for a JNOV. Id. (citing McClain v. State, 625 So.2d 774, 778 (Miss. 1993)). A motion .for a new trial chai-lenges the weight of the evidence, and a reversal is only appropriate if the trial court abused its discretion in denying the motion for a new trial. Id. at (¶ 31). We must review the evidence in a light most favorable to the jury verdict, giving the State “the benefit of all favorable inferences that may reasonably be drawn from the evidence.” McFee v. State, 511 So.2d 130, 133 (Miss.1987).

¶ 15. The evidence of Cotton’s guilt is overwhelming, notwithstanding Griffin’s testimony that Cotton was not the man she saw run towards the pond and dispose of the gun. Although Cotton claimed to be out of town, the vehicle Cotton regularly borrowed from Leroy Thomas, and had borrowed that evening, was found at the Commons the night of the shooting. Byron Mclntire from the Mississippi Crime Laboratory testified that the bullets retrieved from Bridges’s body were fired from a gun with the same serial number as the gun Cotton had retrieved from the pawn shop two days prior to the shooting. The gun bearing this serial number was found in the section of the pond where Miller and Griffin testified they saw a man toss an unidentified object. Miller identified Cotton as the man he saw running from the direction of the shooting and toss an object into the pond. Additionally, Andre Nagoski, head of the latent prints division at the Mississippi Crime Laboratory, testified that the palm print from the hood of Bridges’s car matched Cotton’s left hand print. Dye, who witnessed the shooting, testified that the shooter placed his hand on the hood of Bridges’s car as he fired into the windshield. The evidence of Cotton’s guilt is overwhelming. This issue is without merit.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

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


author: MYERS, P.J.,

text:
    Brian O. STEEN, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-00650-COA.
    Court of Appeals of Mississippi.
    July 18, 2006.

      Brian O. Steen, Appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. On January 23, 2002, Brian O. Steen pled guilty to armed robbery and was sentenced by the Circuit Court of Calhoun County to thirty years with fifteen years suspended, leaving fifteen to serve in the custody of the Mississippi Department of Corrections and five years of post-release supervision. Steen filed his petition for post-conviction relief on December 17, 2004, and the Circuit Court of Calhoun County denied this petition on March 10, 2005. Aggrieved by the trial court’s ruling, Steen appeals raising the following four issues:

I. WHETHER OR NOT STEEN’S GUILTY PLEA WAS ENTERED INTO KNOWINGLY AND INTELLIGENTLY.
II. WHETHER OR NOT STEEN WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
III. WHETHER OR NOT STEEN’S SENTENCE VIOLATED HIS CONSTITUTIONAL RIGHTS.
IV. WHETHER OR NOT THE TRIAL COURT ERRED WHEN IT DISMISSED STEEN’S PETITION FOR POST-CONVICTION RELIEF AS BEING TIME-BARRED.

DISCUSSION

¶ 2. Post-conviction collateral relief is “to provide prisoners with a procedure, limited in nature, to review those objections, defenses, claims, questions, issues, or errors which in practical reality could not have been or should not have been raised at trial or on direct appeal.” Miss. Code Ann. § 99-39-3(2) (Rev.2000). Post-conviction relief is not the same or a substitute for direct appeal. See Cole v. State, 666 So.2d 767, 772-73 (Miss.1995).

STANDARD OF REVIEW

¶ 3. This Court will not disturb the trial court’s factual findings, when reviewing a decision to deny a petition for post-conviction relief, unless they are found to be clearly erroneous. Brown v. State, 731 So.2d 595, 598(116) (Miss.1999). However, the applicable standard of review is de novo where questions of law are raised. Id. at 598(¶ 6).

I. WHETHER OR NOT STEEN’S GUILTY PLEA WAS ENTERED INTO KNOWINGLY AND INTELLIGENTLY.

¶ 4. Steen claims that he did not know all the consequences when he entered his plea of guilty. However, the trial judge questioned him thoroughly at sentencing, and he signed a petition to enter a plea of guilty on January 23, 2002. This petition along with the trial judge explained the waiver of rights as a result of a guilty plea.

¶ 5. A guilty plea is not binding unless it is voluntarily and intelligently entered into by the criminal defendant. Myers v. State, 583 So.2d 174, 177 (Miss. 1991). A plea is considered voluntary and intelligent when the defendant is advised concerning the nature of the charge against him and the consequences of the plea. See Wilson v. State, 577 So.2d 394, 396-97 (Miss.1991). The defendant must also be told that a guilty plea waives all right to a jury trial. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Steen was advised of his rights; therefore, this issue has no merit.

II. WHETHER OR NOT STEEN WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

¶ 6. In order to prove ineffective assistance of counsel, Steen must prove by a preponderance of the evidence that (1) counsel’s performance was defective, and (2) the defect was so prejudicial that it prevented Steen from receiving a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Moody v. State, 644 So.2d 451, 456 (Miss. 1994). The proper standard that is required to show prejudice requires Steen to prove that there is a reasonable probability that, but for counsel’s errors, the trial court’s result would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052 The burden is on Steen to prove both prongs of the test. Id. Steen has failed to prove that his counsel was ineffective; therefore, this issue has no merit.

III. WHETHER OR NOT STEEN’S SENTENCE VIOLATED HIS CONSTITUTIONAL RIGHTS.

¶ 7. A trial court will not be held to have abused its discretion if the sentence imposed is within the limits fixed by statute. Johnson v. State, 461 So.2d 1288, 1292 (Miss.1984). Usually a sentence cannot be disturbed on appeal as long as it does not exceed the maximum term set by statute. Fleming v. State, 604 So.2d 280, 302 (Miss.1992). Also, the supreme court has held that a sentence which does not exceed statutory limits is not cruel or unusual punishment. Baker v. State, 394 So.2d 1376, 1378 (Miss.1981). It is the legislature’s prerogative and not this Court’s to set the length of sentences. Stromas v. State, 618 So.2d 116, 123 (Miss.1993).

¶ 8. Steen was sentenced in accordance with Mississippi Code Annotated section 97-3-79 (Rev.2000), which states that every person convicted of armed robbery can be sentenced to life by a jury or when the jury does not give the sentence, the judge may sentence the defendant to imprisonment for any term not less than three years. Steen was sentenced to thirty years with fifteen suspended and the remaining fifteen to be served in the custody of the Mississippi Department of Corrections and five years post-release supervision. This sentence is within the statute. When the trial judge imposes a sentence within the statutory guideline, the sentence will generally be upheld and will not be thought to invoke the Eighth Amendment right against cruel and unusual punishment. Peterson v. State, 740 So.2d 940, 950(¶31) (Miss.Ct.App.1999). Therefore, this issue is without merit.

IV. WHETHER OR NOT THE TRIAL COURT ERRED WHEN IT DISMISSED STEEN’S PETITION FOR POST-CONVICTION RELIEF AS BEING TIME-BARRED.

¶ 9. Steen argues that the trial court erred when it ruled that his petition for post-conviction relief was time-barred and therefore dismissed. Steen pled guilty on January 23, 2002. According to Mississippi Code Annotated section 99-39-5 (Rev. 2000), there is a three year statute of limitations for a prisoner to file a petition for post-conviction relief. Wright v. State, 821 So.2d 141(¶ 3) (Miss.Ct.App.2000). Steen filed his first petition for post-con-vietion relief on February 4, 2004, in the Circuit Court of Calhoun County. The circuit court denied Steen’s motion on February 25, 2004, as being frivolous and unintelligible. Steen did not seek an appeal from the February 25, 2004 order. On May 27, 2004, the supreme court issued an order stating that there was no evidence of a direct appeal and that this motion should be dismissed without prejudice and sent back to the trial court. There was no direct appeal because this was a guilty plea. However, Steen filed another petition for post-conviction relief in the Circuit Court of Calhoun County on December 17, 2004. The circuit court also denied this motion stating that on March 14, 2005, it was time-barred.

¶ 10. Mississippi Code Annotated section 99-39-27(9) (Supp.2005) states that the denial or dismissal of an application under this section with regard to a petition for post-conviction relief is a final judgment and shall bar a successive application under this chapter. This section also lists several exceptions which are not applicable in this case. After the trial court made its ruling on February 25, 2004, they no longer had jurisdiction to rule on a second petition. Jackson v. State, 811 So.2d 340, 342(¶ 6) (Miss.Ct.App.2001). However, the Mississippi Supreme Court issued an order dismissing Steen’s motion without prejudice and sent it back to the trial court, after the trial court issued the first ruling. This Court is faced with an incomplete record which did not include Steen’s motion to the supreme court or a date of its filing. We must now decide whether procedural bars under the post-conviction collateral relief act are applicable in this case, without a complete record. Steen, as the appellant, has the duty to provide this Court with a copy of the record of the trial court’s proceedings. Jackson v. State, 684 So.2d 1213, 1216 (Miss.1996).

¶ 11. Steen as the petitioner in this case has the burden of proving that his claim is not procedurally barred. Massey v. State, 843 So.2d 74, 75(¶ 7) (Miss.Ct.App.2003). Steen argues that the trial court based its decision on the procedural bar; therefore, the State can not rely on that issue here. However, this Court has ruled that for the sake of judicial economy an appellate court can affirm the trial court if the right result is reached for the wrong reasons. Puckett v. Stuckey, 633 So.2d 978, 980 (Miss.1993). The State asserts that when the circuit court denied Steen’s second motion for post-conviction relief as being time-barred, the trial judge did not mean time-barred according to the three year statute of Miss.Code Annotated section 99-39-5 (Rev 2000), instead he meant the case was procedurally barred. However, this Court will not try to assume what the trial judge meant in that motion, nor will we try to assume the content of the motion which resulted in the supreme court’s order dated May 27, 2004. Instead this Court will affirm the trial court’s ruling from the merits of the case.

¶ 12. We find that the outcome is correct. While the circuit court may have erroneously based its denial of the petition for post-conviction relief as being time-barred, we are not restricted to the circuit court’s reasons for the result it reached. Puckett v. Stuckey, 633 So.2d 978, 980 (Miss.1993). We find the circuit court was correct in denying Steen’s petition but for the reasons set forth in this opinion.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF CALHOUN COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CALHOUN COUNTY.

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


text:
    Don LONG, Appellant Cross-Appellee v. STATE of Mississippi, Appellee Cross-Appellant.
    No. 2004-KA-01794-COA.
    Court of Appeals of Mississippi.
    July 18, 2006.

      Johnnie E. Walls, Greenville, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Don Long was found guilty of possession of stolen property in the Circuit Court of Yazoo County on August 27, 2004. The trial court sentenced him to five years in the custody of the Mississippi Department of Corrections with three years suspended, leaving two years to serve. Aggrieved by the trial court’s ruling, Long appeals to this Court raising the following issue:

WHETHER OR NOT THE EVIDENCE OF POSSESSION OF STOLEN PROPERTY WAS INSUFFICIENT TO SUSTAIN LONG’S CONVICTION.

¶ 2. The State filed a cross-appeal raising the following issue:

WHETHER OR NOT THE TRIAL COURT ERRED IN SUPPRESSING EVIDENCE OF OTHER STOLEN ITEMS.

FACTS

¶ 3. Brett Corbett purchased a Ford F-250 pick-up truck on September 25, 2000, for approximately $36,000. On or about March 6, 2001, this truck became missing. Corbett reported it stolen to the Lee County Sheriff and then filed an insurance claim. Long purchased this truck from Ricky Landers for $12,000 without getting any paperwork, bill of sale or title. Long did not purchase a tag for the truck or insurance. On March 16, 2002, Terry Sax-ton, the operator of the Walnut Hills Golf Course in Yazoo County, noticed a Ford F-250 parked in the parking lot with a boat attached. Saxton did not recognize the truck. A police officer came to the golf course and ran a check on the truck and discovered that it had been reported stolen. Around ten days later, Long came to the sheriffs office to retrieve the truck. Long did not bring the title, bill of sale or any sort of paper work for the truck, except for a cancelled check for $12,000 made out to Ricky Landers. Long presented this check in an attempt to prove ownership of the truck. Long was charged with possession of stolen property, and on August 27, 2004, a Yazoo County jury found Long guilty.

STANDARD OF REVIEW

¶ 4. The standard of review for deciding whether or not a jury verdict is against the overwhelming weight of the evidence is that this Court must accept the evidence which supports the verdict as true and will reverse only if convinced that the circuit court abused its discretion in not granting a new trial. Price v. State, 898 So.2d 641, 652(¶26) (Miss.2005). A new trial will not be ordered unless we are convinced that the verdict is so contrary to the overwhelming weight of the evidence, that to allow the verdict to stand, would be to sanction an unconscionable injustice. Pearson v. State, 428 So.2d 1361, 1364 (Miss.1983).

¶ 5. This high standard is necessary because any factual disputes are properly resolved by the jury not by an appeals court. McNeal v. State, 617 So.2d 999, 1009 (Miss.1993). The only way this Court can overturn the jury’s findings is when the facts must be so in favor of the defendant that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty. Glass v. State, 278 So.2d 384, 386 (Miss.1973).

¶ 6. Long asserts that the evidence produced at trial was insufficient to sustain his conviction. He goes further to argue that there was no evidence presented which indicated that he willfully, intentionally and feloniously possessed the stolen truck. He states that the State had no knowledge that Long had anything to do with the truck until he appeared at the sheriffs office. However, the boat attached to this truck was registered under Long’s name. Mississippi Code Annotated section 97-17-70(1) sets out the requirements for the crime of receiving stolen property, which are the possession, receipt, retention or disposition of personal property which was stolen from someone else with the knowledge or a reasonable belief that the property is stolen. Washington v. State, 726 So.2d 209, 212-13 (¶ 10) (Miss.Ct.App.1998). “Guilty knowledge is the gist of the offense of receiving stolen property.... ” Ellett v. State, 364 So.2d 669, 670 (Miss.1978); Johnson v. State, 247 So.2d 697, 698 (Miss.1971). For the State to prove guilty knowledge, it must prove that Long received the property under circumstances that would lead a reasonable person to believe that it was stolen. Ellett, 364 So.2d at 670. Even if Long did not witness the theft of the truck, a reasonable man would have known it was stolen. He purchased the truck at a very low price and did not receive any sort of evidence of ownership from the seller. Guilty knowledge must be both alleged and proved by the State for a conviction to stand. Johnson v. State, 247 So.2d 697 (Miss.1971). We find that this issue has no merit; therefore, we see no need to discuss the issue on cross-appeal.

¶ 7. THE JUDGMENT OF THE CIRCUIT COURT OF YAZOO COUNTY OF CONVICTION OF POSSESSION OF STOLEN PROPERTY AND SENTENCE OF FIVE YEARS WITH THREE YEARS SUSPENDED LEAVING TWO YEARS TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED ON DIRECT AND CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO YAZOO COUNTY.

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


author: PER CURIAM. NABERS, Chief Justice SEE, Justice STUART, Justice

text:
    Ex parte Eddie ROBERTSON. (In re Eddie Robertson v. State of Alabama).
    1050061.
    Supreme Court of Alabama.
    Dec. 9, 2005.
    Eddie Robertson, pro se.
    Submitted on petitioner’s brief only.
   PER CURIAM.

WRIT DENIED. NO OPINION.

LYONS, HARWOOD, and WOODALL, JJ., concur.

NABERS, C.J., and SEE, STUART, SMITH, BOLIN, and PARKER, JJ., concur specially.

NABERS, Chief Justice

(concurring specially).

I concur in the decision to deny certiora-ri review in this case. I write separately because the case touches on an issue that merits further attention — the subject-matter jurisdiction of the Alabama courts in criminal cases.

Robertson filed a petition under Rule 32, Ala. R.Crim. P., challenging a nearly 30-year-old conviction that resulted from a guilty plea. He did not appeal that conviction. Under most circumstances, any of those factors would preclude postconviction relief. See Fuqua v. State, 912 So.2d 290, 291 (Ala.Crim.App.2005)(guilty plea waives all nonjurisdictional defects occurring before the plea); Rule 32.2(c), Ala. R.Crim. P. (one-year limitations period for nonjurisdictional claims); Rule 32.2(a), Ala. R.Crim. P. (precluding postconviction relief based upon most grounds not raised on direct appeal).

This Court has stated, however, that “[flailure to allege an essential element of the charged offense is a jurisdictional defect, and the failure to raise the defect at trial or on direct appeal does not constitute a waiver.” Ex parte Lewis, 811 So.2d 485, 487 (Ala.2001). Robertson alleges in his petition that his indictment failed to charge that he acted with the specific intent necessary to commit the offense of grand larceny. Under current Alabama law, Robertson’s claim is a jurisdictional claim, which is never waived or precluded. Robertson was therefore permitted to present the merits of his claim to the Court of Criminal Appeals.

To characterize the type of claim Robertson asserts as jurisdictional is questionable. Alabama’s courts derive their subject-matter jurisdiction from the Alabama Constitution and the Alabama Code. By stating that a valid indictment is necessary to vest a trial court with subject-matter jurisdiction over a criminal offense, we seem to have departed from that constitutional and statutory framework.

Jurisdiction is “[a] court’s power to decide a case or issue a decree.” Black’s Law Dictionary 868 (8th ed.2004). Subject-matter jurisdiction concerns the types of cases a court may hear. Woolf v. McGaugh, 175 Ala. 299, 303, 57 So. 754, 755 (1911) (“ ‘By jurisdiction over the subject-matter is meant the nature of the cause of action and of the relief sought.’ ” (quoting Cooper v. Reynolds, 77 U.S. (10 Wall.) 308, 316, 19 L.Ed. 931 (1870))). In deciding whether an error in a criminal case is jurisdictional, our inquiry should be limited to whether the trial court had the constitutional and statutory authority to try the type of offense with which the defendant is charged.

Alabama’s circuit courts have subject-matter jurisdiction over all prosecutions for felony offenses committed within the state of Alabama. The Alabama Constitution states that “[t]he circuit court shall exercise general jurisdiction in all eases except as may otherwise be provided by law.” Amend. No. 328, § 6.04(b), Ala. Const.1901. The Alabama Code provides that “[t]he circuit court shall have exclusive original jurisdiction of all felony prosecutions ....” § 12-11-30, Ala.Code 1975. No statute or constitutional provision limits this jurisdiction to those cases in which the defendant is charged by a valid indictment.

Robertson was charged in the circuit court with grand larceny — a felony offense. Because Alabama’s circuit courts have the power to try all felony offenses, no defect in the indictment could divest the court of subject-matter jurisdiction in Robertson’s case. To the extent our cases hold otherwise, they should be reexamined.

It is noteworthy that the United States Supreme Court has long held that a defective indictment does not divest a federal district court of subject-matter jurisdiction. In Lamar v. United States, 240 U.S. 60, 36 S.Ct. 255, 60 L.Ed. 526 (1916), Justice Holmes stated: “The objection that the indictment does not charge a crime against the United States goes only to the merits of the case.” 240 U.S. at 65, 36 S.Ct. 255. More recently, in United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002), a unanimous Supreme Court recognized that the characterization of a defect in an indictment as jurisdictional was based on a concept of jurisdiction that has long been discredited:

“In 1887, therefore, this Court could examine constitutional errors in a criminal trial only on a writ of habeas corpus, and only then if it deemed the error ‘jurisdictional.’ The Court’s desire to correct obvious constitutional violations led to a ‘somewhat expansive notion of jurisdiction,’ which was ‘more a fiction than anything else.’ ...
“[This] elastic concept of jurisdiction is not what the term ‘jurisdiction’ means today, ie., ‘the courts’ statutory or constitutional power to adjudicate the case.’ This latter concept of subject-matter jurisdiction, because it involves a court’s power to hear a case, can never be forfeited or waived. Consequently, defects in subject-matter jurisdiction require correction regardless of whether the error was raised in district court. In contrast, the grand jury right can be waived....
“... [A] ruling ‘that the indictment is defective does not affect the jurisdiction of the trial court to determine the case presented by the indictment.’
“Thus, this Court some time ago departed from [the] view that indictment defects are ‘jurisdictional.’ ”

535 U.S. at 630-31, 122 S.Ct. 1781 (internal citations omitted).

This reasoning is equally applicable to the constitutional and statutory framework within which Alabama’s circuit courts operate. When an appropriate case presents itself, this Court should revisit this important issue.

SEE, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

SEE, Justice

(concurring specially).

I concur in Chief Justice Nabers’s special concurrence. See Ex parte Lewis, 811 So.2d 485, 490-91 (Ala.2001)(See, J., dissenting)(“To the extent that Byrd [v. State, 763 So.2d 987 (Ala.Crim.App.2000) ] — and the line of similar cases — hold that failure of an indictment to allege an essential element of the charged offense is a per se jurisdictional defect, requiring that a conviction based on that indictment be set aside, I would overrule Byrd and that line of cases.”).

STUART, Justice

(concurring specially).

I join Chief Justice Nabers’s special concurrence; I agree that when the issue whether a defect in an indictment divests the trial court of subject-matter jurisdiction in a criminal case is properly presented to this Court, we should overrule our precedent that it does. I recognize that I concurred with the majority’s decision to decline the State’s request in Ex parte Lewis, 811 So.2d 485 (Ala.2001), that this Court overrule our precedent holding that the failure of an indictment to allege an essential element of the charge created a jurisdictional defect. I have reviewed Ex parte Lewis and its progeny, and I realize now that I made a mistake concurring in Ex parte Lewis; I regret that I did not dissent on the basis that this Court has misconstrued the term “jurisdiction” and that I did not encourage the Court to overrule the precedent, because, as the United States Supreme Court has stated, subject-matter jurisdiction is “ ‘the courts’ statutory or constitutional power to adjudicate the case.’ ” United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)(quoting Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)). A court cannot be divested of subject-matter jurisdiction by a defect in a pleading that does not prejudice the defendant. See Justice See’s dissenting opinion in Ex parte Lewis, 811 So.2d at 490-91.

      . I have reviewed the following decisions, which have been impacted by this Court’s decision in Ex parte Lewis: R.S.M. v. State, 931 So.2d 69 (Ala.Crim.App.2005); Burger v. State, 915 So.2d 586 (Ala.Crim.App.2005); Grant v. State, 904 So.2d 365 (Ala.Crim.App.2005); Sullens v. State, 878 So.2d 1216 (Ala.Crim.App.2003)(Shaw, J., dissenting); Cogman v. State, 870 So.2d 762 (Ala.Crim.App.2003); and Ex parte Cole, 842 So.2d 605 (Ala.2002).
      I further note that Ex parte Cole and its significant progeny also stem from our case-law holding that the trial court's subject-matter jurisdiction in a criminal case evolves from the indictment. In my special writing in Wright v. State, 902 So.2d 738 (Ala.2004), I explained my disagreement with the majority’s interpretation of Ex parte Cole and my belief that a trial court does not lose subject-matter jurisdiction if an indictment is not factually amended to bring a lesser charge within the scope of the original indictment. See also my special writings in Childers v. State, 899 So.2d 1025, 1034 (Ala.2004)(Stuart, J., dissenting); Bradley v. State, 925 So.2d 232, 245 (Ala.2005)(Stuart, J., concurring in the result); and Johnson v. State, 922 So.2d 144 (Ala.2005)(Stuart, J., concurring specially).