author: RANDOLPH, Justice, for the Court. EASLEY, Justice,

text:
    Franklin B. LIEBLING v. THE MISSISSIPPI BAR.
    No. 2004-BA-01565-SCT.
    Supreme Court of Mississippi.
    March 23, 2006.

      Victor Israel Fleitas, Tupelo, attorney for appellant.
    Adam Bradley Kilgore, Jackson, attorney for appellee.
   RANDOLPH, Justice, for the Court.

STATEMENT OF THE CASE

¶ 1. This case stems from an Informal Bar Complaint filed by Cori Stewart (“Con”) against attorney Franklin Lie-bling (“Liebling”). After receiving and investigating Cori’s Complaint, the Office of General Counsel for the Mississippi Bar (“Bar”) scheduled an investigatory hearing. An investigatory hearing was held on January 28, 2003, and Liebling did not attend. The Office of General Counsel for the Bar found Liebling had violated Rules 8.1(b) and 8.4(a), (c), and (d) of the Mississippi Rules of Professional Conduct and that discipline should be imposed for these violations.

¶2. On May 12, 2003, the Mississippi Bar filed a Formal Complaint against Lie-bling. The filing of the Formal Complaint was pursuant to Liebling’s request that a formal disciplinary proceeding be initiated against him to adjudicate the propriety of his alleged misconduct. This complaint alleged Liebling: 1) violated Rule 8.1(b) of the Mississippi Rules of Professional Conduct by failing to attend an investigatory hearing; and 2) violated Rule 8.4(a), (c), and (d) of the Mississippi Rules of Professional Conduct by “guaranteeing on three separate occasions that he would be able to effectuate the release of Cori by a certain date.”

¶ 3. A trial was held before the Complaint Tribunal (“Tribunal”) on June 29, 2004. With respect to Liebling’s alleged violation of M.R.P.C. 8.1, the Tribunal granted Liebling’s Motion for Directed Verdict. In granting this motion, the Tribunal cited Rule 5.7 of the Rules of Discipline for the Mississippi Bar, which states, “[t]he accused attorney may appear at any investigatory hearing conducted by complaint counsel.” The Tribunal stated it did not condone Liebling’s failure to appear at the. investigatory hearing. However, it did not find that Liebling failed to respond to any request for information from the Committee on Professional Responsibility; and therefore, Liebling did not violate M.R.P.C. 8.1. With respect to Liebling’s alleged violation of M.R.P.C. 8.4(a), (c) and (d), the Tribunal found Liebling’s conduct violated M.R.P.C. 8.4(a) and (c). The Tribunal did not address M.R.P.C. 8.4(d) in its opinion and judgment.

¶4. The Tribunal also found Liebling had been the subject of prior Bar complaints, resulting in one Private Reprimand and one Informal Admonition. In Miss. State Bar v. A Miss. Attorney, 489 So.2d 1081 (Miss.1986), Liebling received a Private Reprimand for charging an excessive fee for the drafting of a will. Liebling received an Informal Admonition for violating M.R.P.C. 1.2(a), 1.3 and 1.4. The Tribunal found Liebling’s conduct constituted unprofessional and unethical conduct under M.R.P.C. 8.4(a) and (c), and issued Liebling a Public Reprimand.

¶ 5. Liebling timely filed his Notice of Appeal on August 6, 2004, and brings the following issues for appeal: 1) whether the Tribunal erred in failing to admit Exhibit D-2; 2) whether the Petitioner failed to establish a violation of Rule 8.4 by clear and convincing evidence; and 3) whether the Tribunal erred in imposing a public reprimand on Liebling.

STANDARD OF REVIEW

¶ 6. Under Mississippi Rule of Discipline 1(a), this Court has exclusive and inherent jurisdiction of matters pertaining to attorney discipline. This Court, when reviewing disciplinary matters, “reviews the evidence de novo, on a case-by-case basis, sitting as triers of fact, and no substantial evidence or manifest error rule shields the Tribunal from scrutiny.” Foote v. Mississippi State Bar Ass’n, 517 So.2d 561, 564 (Miss.1987). See also Hoffman v. Miss. State Bar Ass’n, 508 So.2d 1120, 1124 (Miss.1987); Vining v. Miss. State Bar Ass’n, 508 So.2d 1047, 1049 (Miss.1987); St. Bd. of Psychological Ex. v. Hosford, 508 So.2d 1049, 1054 n. 4 (Miss.1987). However, this Court may grant deference to the Tribunal “due to its exclusive opportunity to observe the witnesses, including the attorney, which is vital in weighing evidence.” The Miss. Bar v. Logan, 726 So.2d 170, 175 (Miss.1999) (quoting Parrish v. The Miss. Bar, 691 So.2d 904, 906 (Miss.1996)).

STATEMENT OF THE FACTS

¶ 7. William Stewart (“Stewart”), Cori’s father, testified in 1995, Cori entered prison to serve a sentence of twenty years after pleading guilty to six counts of possession and sale of marijuana. During his incarceration, Cori received information from another inmate that hiring Liebling as his attorney might help to get Cori’s sentence reduced. Cori communicated this information to his father, and Stewart contacted Liebling in February, 1999.

¶ 8. Stewart testified that at their initial meeting, Liebling assured Stewart that Cori would not need a sentence reduction, but that Liebling could get Cori out early. Liebling stated that because Cori was a first time offender and that he was “misrepresented in court because he had an assigned lawyer,” he would be able to get Cori out, if Stewart paid Liebling $5,000. Stewart was to pay a first time fee of $1,500 and pay the rest in installments. Stewart stated he paid $400 to $500 every two weeks. After Stewart made the initial $1,500 payment by check, Liebling requested he be paid only in cash. Stewart paid the remainder in cash.

¶ 9. Stewart testified after he hired Lie-bling and paid $1,500, he met with Liebling once every two weeks, sometimes once a week, and it was at these meetings that Liebling suggested the three dates on which Cori would be out of prison. Stewart testified Liebling said he could have Cori home by Father’s Day of 1999. After Father’s Day had passed, Stewart stated Liebling told him “he’d run into some trouble” getting Cori out and that he would have Cori home by Christmas of 1999.

¶ 10. By Christmas of 1999, Stewart had paid Liebling the full $5,000, but Cori was still in prison. Stewart testified after Christmas, Liebling requested an additional $500 in order to have Cori home by January 25, 2000, which was Cori’s birthday. Stewart paid Liebling an additional $400, not being able to afford the last $100.

¶ 11. When Cori was not released by January 25, 2000, Stewart requested Cori’s file and terminated representation by Lie-bling. Cori remained in prison until the summer of 2003. Stewart testified that Cori’s sentence was reduced by one year due to good behavior.

¶ 12. Liebling testified he made no such assurances of dates on which Cori might be released, and separately submitted an affidavit swearing he did not make any representations that Cori could be released, or that he could even get Cori a reduction in his sentence. Liebling testified his only representation to Stewart was that he “would exert my best professional efforts on his behalf.”

ANALYSIS

I. Whether the Complaint Tribunal erred in failing to admit Exhibit D-2

¶ 13. Exhibit D-2 contained three letters written by Cori to Liebling. Lie-bling sought to have these letters entered to support a recent fabrication theory. Cori had written these letter's from prison. In these letters, Cori made no reference to getting out of prison by a certain date. The Tribunal ruled these letters were to be marked for identification purposes only.

¶ 14. The Bar objected to these letters being entered into evidence asserting these were being offered to prove a negative and also lacked relevancy. Liebling responded the letters were being offered to establish recent fabrication, to prove “our claim that the allegations made by these folks in 2002 are rebutted by the fact that letters in 2000 and 2001 make no mention of the fact that they had these complaints with respect to Mr. Liebling.”

¶ 15. After the Bar registered its objections, counsel for Liebling was questioned extensively by the Tribunal regarding the admissibility of these documents. Even though the Bar made general, albeit incorrect, objections, the Tribunal ruled the letters to be inadmissible. The Tribunal’s questions centered upon language found in 801(d)(1)(B) of the Mississippi Rules of Evidence.

¶ 16. M.R.E. 801(d)(1)(B) states: “[a] statement is not hearsay if: The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is consistent with his testimony and is offered to rebut an express or implied charge of recent fabrication or improper influence or motive.... ”

¶ 17. In this matter, the declarant was Cori. Cori was neither present at the hearing, nor was he subpoenaed by either party. Stewart testified that Cori was out of prison and maintained a job and apartment. Cori was not available to be examined by either party regarding these letters. Accordingly, the Tribunal found the letters to be inadmissible. The Tribunal was correct in its finding, as these letters constitute hearsay, under M.R.E. 801(d)(1)(B). The Tribunal did not err in excluding these letters.

II. Whether the Petitioner failed to establish a violation of Rule 8.4 by clear and convincing evidence.

¶ 18. “The burden is on the Bar to show by clear and convincing evidence that an attorney’s actions constitute professional misconduct.” Attorney W.L. v. The Miss. Bar, 621 So.2d 235, 237 (Miss.1993) (citations omitted). “Certainly, when it is performing its important duties, the Complaint Tribunal should employ the clear and convincing evidence standard.” Levi v. Miss. State Bar, 436 So.2d 781, 784 (Miss.1983).

¶ 19. Liebling claims Cori is using the complaint process “as a mechanism to force Mr. Liebling to refund the fee he earned in this matter.” Liebling further claims the allegation of promises of when Cori would be home was suspect because there was no mention of these alleged promises in the correspondence from Cori to Liebling, which was not admitted into evidence. However, Stewart claimed there is no mention of specific dates in the non-admitted correspondence from Cori, because Stewart did not inform his son of Liebling’s promises. Stewart testified Lie-bling told him not to tell Cori that he was going to get him out “because they would make things harder from him in prison, somebody thinking he’s fixing to get out.” However, a letter from prison dated August 26, 2002, by Cori to Liebling, which mentioned the three promised release dates, was offered into evidence by Lie-bling. Liebling argues this letter was admitted to show that Cori’s first mention of the promised release dates was made in a letter written two years after the promises by Liebling were alleged to have been made. Liebling offered this letter as proof of recent fabrication, since Cori only mentioned the release dates shortly before the informal Bar Complaint was filed. Stewart’s testimony countered this by again stating that he had not previously told Cori of the release dates, so as not to make it harder for him among the other prisoners.

¶ 20. The dissenting opinion characterizes the proceeding as “using the bar complaint to collect a refund of the money paid to Liebling.” This accusation was refuted by Stewart in his testimony.

¶ 21. The Tribunal, sitting as fact finder, was presented with conflicting testimony and rendered its decision. "We give deference to findings of the Tribunal due to its exclusive opportunity to observe the demeanor and attitude of witnesses, including the attorney.” Parrish v. The Miss. Bar, 691 So.2d 904, 906 (Miss.1996). This Court grants deference to the Tribunal, especially if the evidence is conflicting, but at the same time must satisfy itself that the fact finder has followed proper procedure, as well as imposed a sanction in line with precedent cases. “This Court may accept or reject the evidence presented in whole or in part, although deference may be given to the findings of the Complaint Tribunal because it has the best opportunity to observe the witnesses.” Stegall v. The Miss. Bar, 618 So.2d 1291, 1294 (Miss.1993). The dissent criticizes the Tribunal for “giving more weight to the testimony of Stewart than that of Lie-bling” and ignoring the testimony of Lie-bling’s character witnesses. The number of witnesses who testify cannot be the deciding factor in a disputed case. “[T]he strength or weakness of testimony is not measured by the number of witnesses appearing for the respective sides of lawsuits.” Spiers v. State, 231 Miss. 307, 94 So.2d 803, 806 (1957). See also Sturdivant v. State, 745 So.2d 240, 248 (Miss.1999); Kirkland v. Chinita Land Dev., Inc., 798 So.2d 620, 623 (Miss.Ct.App.2001). As in Stegall, the Tribunal was in the best position to observe these proceedings, and to determine the relevance and weight to be accorded to the testimony offered by the parties and the witnesses they called.

¶22. The Tribunal resolved conflicting evidence regarding the heart of this dispute, of which none of the character witnesses had personal knowledge, and rendered its decision accordingly. In its opinion, the Tribunal stated, “[we] find by clear and convincing evidence that Mr. Leibling’s conduct violates certain Rulés of Professional Conduct ... said being, Rule 8.4(a) and (e).” After thorough review of the record, this Court finds no evidence to suggest the Tribunal erred in its finding.

III. Whether the Complaint Tribunal erred in imposing a Public Reprimand on Mr. Liebling

¶ 23. Sanctions are imposed based on the following factors:

(1) The nature of the misconduct involved; (2) the need to deter similar misconduct; (3) the preservation of dignity and reputation of the legal profession; (4) the protection of the public; (5) sanctions imposed in similar cases; (6) the duty violated; (7) the lawyer’s mental state; (8) the actual or potential injury resulting from the misconduct; and (9) the existence of aggravating or mitigating factors.

Miss. Bar v. Walls, 890 So.2d 875, 877 (Miss.2004) (quoting Miss. Bar v. Inserra, 855 So.2d 447, 450 (Miss.2003)).

¶ 24. In attorney disciplinary matters, the Tribunal is required to examine the aforementioned factors. This Court has previously stated (perhaps not as clearly as we believed), that the Tribunal should include its analysis of these factors in its opinions and judgments. While this does not turn on this oversight, this Court will require such inclusion in the opinions of all Tribunals which conduct hearings after today’s decision.

¶ 25. Based upon the record, this Court examines the nine factors necessary to impose a sanction against an attorney in a disciplinary action.

(1) The nature of the misconduct involved: Liebling argues that the nature of the misconduct involved “constitutes a highly questionable claim that a seasoned practitioner made three promises regarding specific dates of when a prisoner would receive early release and this factor supports a lesser sanction than that imposed by the Complaint Tribunal.” The Bar argues the imposition of a Public Reprimand is appropriate as Liebling violated his duty of candor by guaranteeing Cori’s early release and accepting $5,400 to accomplish the same. The Bar argues the Tribunal was correct in sanctioning Liebling after the Tribunal considered Liebling’s misrepresentation along with his two previous violations.

¶ 26. In its Opinion, the Tribunal stated, “[b]ased upon clear and convincing evidence, it is the opinion of the Tribunal that Mr. Liebling has demonstrated unprofessional and unethical conduct involving misrepresentation by guaranteeing on three separate occasions that he would be able to effectuate the early release of Cori by a certain date, guarantees which he knew or should have known that he could not make.”

¶27. The nature of the conduct involved in this case is a false guarantee. Liebling did not have the authority to guarantee the date of Cori’s release, nor should he have promised such for $5,400. This Court has held, “dishonest conduct by an attorney with his own client goes to the very core of a lawyer’s fitness to practice law.” Id. at 512. (quoting Reid v. The Miss. Bar, 586 So.2d 786, 788 (Miss.1991)).

(2) The need to deter similar misconduct: Liebling was not forthright with Stewart about his ability to have Cori released from prison. When a client is misled by his attorney, the need to deter similar misconduct is great. Liebling has previously received not only a Private Reprimand for charging an excessive fee for a will, but an Informal Admonition for violating M.R.P.C. 1.2(a), 1.3 and 1.4. The dissent states these previous violations are not similar in nature to the violation now charged. However, the rules Liebling have been accused of violating are rules regarding his relationship and diligence towards a client. “The failure to follow the Rules involving duties to clients, which [Attorney] has violated, involve the most important ethical standards this profession espouses.” Stegall, 618 So.2d at 1294.

(3) The preservation of the dignity and reputation of the profession: The sanctions imposed by the Tribunal should be upheld in order to preserve the dignity and reputation of the legal profession. “The legal profession today is under an extreme amount of pressure. It is constantly being scrutinized by the public. Public policy demands that we adequately discipline unethical attorneys to preserve the dignity and reputation of the legal profession.” Emil v. The Miss. Bar, 690 So.2d 301, 327 (Miss.1997). As this is Lie-bling’s third ethical violation, this factor warrants the sanctions imposed by the Tribunal.

(4) The protection of the public: Lie-bling argues that protection of the public may be achieved through a lesser sanction. This Court has repeatedly held that the public needs protection from attorneys who are not honest with their clients. See Carter v. The Miss. Bar, 654 So.2d 505, 512 (Miss.1995). Liebling should not have guaranteed, for the sum of $5,400 that he could have Cori released from prison. There is a need to protect clients from false promises knowingly made by their attorneys. “[T]he purpose of bar disciplinary proceedings is not to punish the respondent lawyer but to vindicate in the eyes of the public the overall reputation of the bar.” Levi, 436 So.2d at 786.

(5) The sanctions imposed in similar cases: “[T]he public’s confidence and faith in the integrity of the entire Bar is dependent upon our willingness to impose appropriate sanctions on our members who have violated the Code of Professional Responsibility.” Pitts v. Miss. State Bar Assoc., 462 So.2d 340, 343 (Miss.1985). Liebling argues if any sanction in this matter is necessary, the Public Reprimand should be reduced to lesser discipline.

¶ 28. This Court has held, “[d]eceit, whether visited on a court or an officer of the court or a private citizen, should be dealt with in a firm manner.” Robb, 684 So.2d at 622. Considering Liebling’s present violation, with his previous violations, the Tribunal found the imposition of a Public Reprimand to be appropriate. In Foote v. Miss. State Bar Assoc., 517 So.2d 561, 564 (Miss.1987), this Court held, “[t]his Court will not hesitate to impose substantial sanctions upon an attorney for any act which evinces want of personal honesty and integrity or renders such attorney unworthy of public confidence.”

¶ 29. In Alexander v. The Miss. Bar, 651 So.2d 541, 547 (Miss.1995), this Court issued a Public Reprimand for an attorney’s failure to communicate with clients and to bring matters to trial. In Miss. Bar v. Mathis, 620 So.2d 1213 (Miss.1993), this Court set aside a Public Reprimand and issued a one year suspension where it was found an attorney was dishonest with his client, opposing counsel and the court. In Stegall v. The Miss. Bar, 618 So.2d 1291, 1296 (Miss.1993), this Court disbarred an attorney who, after receiving two private reprimands and two informal admonitions, continued to fail to keep his clients informed, misrepresented his explanation of services and failed to return property and render an accounting of funds. This Court found Stegall failed to learn any lesson from his previous sanctions. Id. Liebling has been the subject of an Informal Admonition and a Private Reprimand, and has now been found in violation of M.R.P.C. 8.4(a) and (c). The sanction imposed by the Tribunal is proportionate to sanctions imposed in similar cases.

(6) The duty violated: The Tribunal found Liebling violated portions of M.R.P.C. 8.4, which governs professional misconduct. Liebling’s guarantee that, for a fee, he would have Cori out of prison by a certain date, demonstrated unprofessional and unethical conduct involving misrepresentation.

(7) The lawyer’s mental state: Liebling’s mental state is not at issue in this case and therefore, is not considered by this Court.

(8) Actual or potential injury resulting from misconduct: In addition to William Stewart losing $5,400, Liebling’s guarantee to the Stewarts to obtain an early release was not fulfilled.

(9) The existence of aggravating or mitigating factors: The existence of aggravating and mitigating factors has been discussed supra. When examining these factors, this Court finds Liebling’s multiple violations outweigh the mitigating factors Liebling presented. In Carter v. Miss. Bar, 654 So.2d 505, 513 (Miss.1995), this Court held, “a pattern of misconduct, and multiple offenses are aggravating circumstances.” See also Harrison v. Miss. Bar, 637 So.2d 204 (Miss.1994).

CONCLUSION

¶ 30. “Upon appeal, the Court shall review the entire record and the findings and conclusions of the tribunal, and shall render such orders as the Court may find appropriate.” Foote, 517 So.2d at 564. This Court has further held,

It may well be that the Complaint Tribunal obtained valuable insights by its personal observation of the appearance and demeanor of the witnesses. And, to be sure, in the exercise of our sound discretion we are by no means prohibited from giving to findings of fact made by the Tribunal such weight as in our judgment they may deserve. This we may do so long as we do not lose sight of the fact that, as a matter of law, it is our non-delegable duty and responsibility to make findings of fact in cases such as this.
Levi, 436 So.2d at 783.

¶ 31. As to Issue I, the Tribunal did not err in excluding Exhibit D-2. The letters included in Exhibit D-2 constituted hearsay and were not admissible under M.R.E. 801(d)(1)(B).

¶ 32. As to Issue II, the Bar established by clear and convincing evidence that Liebling violated M.R.P.C. 8.4(a) and (c).

¶ 33. As to Issue III, the Tribunal did not err in imposing a Public Reprimand on Liebling. The Tribunal took into consideration Liebling’s most recent violation, and his previous violations when issuing a sanction. It is the opinion of this Court that the Tribunal issued an appropriate sanction.

¶ 34. There being no error in the findings of the Tribunal, this Court affirms their findings and punishment, and orders that a Public Reprimand be issued to Lie-bling.

¶ 35. FRANKLIN B. LIEBLING SHALL BE PUBLICLY REPRIMANDED.

SMITH, C.J., WALLER AND COBB, P.JJ., AND DICKINSON, J., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. EASLEY, J., DISSENTS WITH WRITTEN OPINION. DIAZ AND CARLSON, JJ., NOT PARTICIPATING.

EASLEY, Justice,

Dissenting:

¶ 36. I must respectfully dissent from the majority’s imposition of a public reprimand against Liebling. While the alleged accusations are serious and not taken lightly, I must disagree with the majority’s imposition of a public reprimand against Liebling for the reasons stated below.

¶ 37. The majority is correct as to the authority provided in its analysis, but I find that authority does not support the majority’s holding. The majority finds the Complaint Tribunal employed a clear and convincing standard in reviewing the evidence to determine that Liebling committed unprofessional conduct in violation of M.R.P.C. 8.4(a) and (c). Accordingly, the majority provides deference to the Tribunal’s findings to determine the Bar has met its burden of establishing Liebling’s misconduct by clear and convincing evidence.

¶ 38. The majority states Liebling’s two prior sanctions and appears to make much of these prior sanctions in its reasoning to support a public reprimand in this case. The majority provides:

[T]he Tribunal further found Liebling had been the subject of prior disciplinary action in the form of one Private Reprimand and one Informal Admonition. In Miss. State Bar v. A Miss. Attorney, 489 So.2d 1081 (Miss.1986), Liebling received a Private Reprimand for charging an excessive fee for the drafting of a will. Liebling received an Informal Admonition for violating M.R.P.C. 1.2(a), 1.3 and 1.4.

However, these prior sanctions, which resulted in a private reprimand and an informal admonishment, were not demonstrated to have been similar in nature to the alleged violations now charged. Likewise, the prior matters do not appear to have any allegations of misrepresentation of facts in order to generate a fee.

¶ 39. The only evidence presented to the Tribunal regarding any alleged misconduct was the testimony of Stewart and Liebling. Stewart testified that Liebling assured him that he could get Cori released from prison by a certain, specific date. Liebling, however, testified to the contrary. Liebling testified that he never made any assurances regarding any specific dates of release from prison. Liebling testified that he only assured Stewart that he would exert his best efforts on Cori’s behalf. Liebling also provided an affidavit that he did not make any representations that Cori would be released from prison by a certain date or that Cori could be released from prison. Liebling contends the complaint process was used by Stewart to seek a refund.

¶ 40. The testimony of Stewart is questionable and self-serving. The evidence shows that Stewart used the bar complaint to collect a refund of the money paid to Liebling. The letter from Stewart to Lie-bling dated July 29, 2002, threatened to file a complaint with the Bar if Liebling did not give him a refund. See Exhibit D-4. The letter stated, “I will want my money back, or I will file a complaint with the Bar Association.” Stewart’s threat against Liebling to file a bar complaint if he did not get a refund, goes directly to Stewart’s credibility to now allege that “promises” were made regarding Cori’s release. The substance of Stewart’s complaint was that he was entitled to a refund. The Bar should have handled this matter as a fee dispute regarding the refund.

¶ 41. The record does not provide that any written documentation or taped recordings or any other evidence existed to substantiate the allegations. Neither the Bar nor Liebling subpoenaed Cori, who was released from prison by this time, to appear at the Tribunal.

¶42. Furthermore, the credibility of Liebling’s testimony was strengthened by character witnesses called to testify at the Tribunal, namely the Honorable David Chandler, Mississippi Court of Appeals Judge and Leon Hayes, Deputy Sheriff of Monroe County and former Sheriff of Ita-wamba County.

¶ 43. “The Supreme Court of Mississippi has exclusive and inherent jurisdiction in bar disciplinary matters.” Mississippi Bar v. Pels, 708 So.2d 1372, 1373 (Miss.1998). See also R. Discipline Miss. State Bar 1(a). In performing its duties and rendering its findings, the Tribunal employs the clear and convincing standard of evidence. Levi v. Miss. State Bar, 436 So.2d 781, 784 (Miss.1983). Likewise, the Bar bears the burden of demonstrating by clear and convincing evidence that an attorney’s actions constituted misconduct. Attorney W.L. v. The Miss. Bar, 621 So.2d 235, 237 (Miss.1993).

¶ 44. This Court must decide each disciplinary case on its own unique merits. Fougerousse v. Mississippi State Bar Ass’n, 563 So.2d 1363, 1366 (Miss.1.990). “On appeal, this Court, ‘shall review the entire record and the findings and conclusions of the Tribunal, and shall render such orders as the Court may find appropriate.’ ” Mississippi Bar v. Sweeney, 849 So.2d 884, 887 (Miss.2003)(quoting Foote v. Miss. State Bar Ass’n, 517 So.2d 561, 564 (Miss.1987)).

¶ 45. As a general rule, this Court provides deference to the findings of the Tribunal in reviewing an attorney’s alleged misconduct in disciplinary matters. See Parrish v. The Miss. Bar, 691 So.2d 904, 906 (Miss.1996). However, while deference may be afforded to the Tribunal’s findings, this Court employs as the trier of facts in disciplinary matters a de novo review, on a case-by-case basis, of the evidence in the record.’ Mississippi Bar v. Shelton, 855 So.2d 444, 445 (Miss.2003)(citing Pels, 708 So.2d at 1373); Hoffman v. Miss. State Bar Ass’n, 508 So.2d 1120, 1124 (Miss.1987); see also R. Discipline Miss. State Bar 9.4. Therefore, we are not bound to impose the sanctions or accept the findings determined by the Tribunal. See Shelton, 855 So.2d at 445; Hoffman, 508 So.2d at 1124.

¶ 46. Here, the record does not support by clear and convincing evidence that Lie-bling did anything improper to constitute a violation of M.R.P.C. 8.4(a) and (c). At best, if the Tribunal accepted Stewart’s testimony over Liebling’s testimony, this only amounts to a preponderance of the evidence, and not clear and convincing evidence. Liebling’s testimony and affidavit contradicted Stewart’s testimony. The Bar did not present any documentation or any other evidence to support Stewart’s accusations. No other witnesses were called or presented by the Bar. As such, I disagree with the majority finding that any more weight should be applied to the testimony of Stewart than that of Liebling. Therefore, I would reverse the findings of the Tribunal which imposed a public reprimand against Liebling.

      . M.R.P.C. 8.1(b) states: An applicant for admission to the Bar, or a lawyer in connection with a bar application or in connection with a disciplinary matter, shall not: (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except this rule does not require disclosure of information otherwise protected by Rule 1.6.
      M.R.P.C. 8.4(a), (c) and (d) state: It is professional misconduct for a lawyer to: (a) violate or attempt to violate the rules of professional misconduct, knowingly assist or induce another to do so, or do so through the acts of another; ... (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice....

      . M.R.P.C. 1.2(a) states: A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to paragraphs (c), (d) and (e), and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client’s decision whether to accept an offer of settlement of a matter. In a criminal case, a lawyer shall abide the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
      M.R.P.C 1.3 states: A lawyer shall act with reasonable diligence and promptness in representing a client.
      M.R.P.C. 1.4 states: a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

      . The briefs of both parties state the sentence was ten years.

      . The record does not contain the date Cori Stewart filed the complaint.

      . For clarity, the majority references Stewart as the "client.” However, technically Cori was Liebling’s client, and Stewart, Cori's father, paid Cori's legal fees to Liebling. Stewart was merely the catalyst that retained Lie-bling on behalf of Cori. Therefore, the dissent will not refer to Stewart as the client.


source: Caselaw Access Project

author: MYERS, J., for the Court.

license: Public Domain

text:
    James W. PARTIN, Executor of the Estate of Shirley Howard Partin, Deceased, Appellant v. NORTH MISSISSIPPI MEDICAL CENTER, INC.; W. Thomas Oakes, M.D.; Richard Sharp, M.D.; and Laura Gray, M.D., Appellees.
    No. 2003-CA-02206-COA.
    Court of Appeals of Mississippi.
    July 19, 2005.
    Rehearing Denied Dec. 13, 2005.

      J. Joshua Stevens, Jr., West Point, attorney for appellant.
    Jason E. Dare, L. Carl Hagwood, Jackson, Shelby Duke Goza, Oxford, Robert K Upchurch, John G. Wheeler, Tupelo, J. Dennis Coleman, S. Kirk Milam, attorneys for appellee.
   MYERS, J., for the Court.

¶ 1. On December 28, 2001, the executor of the estate of Shirley Howard Partin (“Partin”), filed a complaint against North Mississippi Medical Center, Inc. (“NMMC”), Dr. Thomas Oakes, Dr. Richard Sharp, and Dr. Laura Gray, alleging medical malpractice and wrongful death. Soon thereafter, three of the four defendants/appellees filed motions for summary judgment, and in response, on September 23, 2002, Partin filed a motion for discovery conference and/or pre-trial conference and for stay of motions for summary judgment.

¶ 2. On March 24, 2003, Dr. Oakes filed his motion for summary judgment, and on March 28, 2003, the motions came on for hearing. On August 26, 2003, the court denied Partin’s motion for discovery conference and/or pre-trial conference and for stay of motions for summary judgment and granted all of the appellees’ motions for summary judgment, including Dr. Oakes’s motion, which had been filed only four days prior to the hearing.

¶ 3. Aggrieved by the grant of the appel-lees’ motions for summary judgment, Par-tin now appeals, raising two issues:

I. DID THE TRIAL COURT ERR IN GRANTING THE APPELLEES’ MOTIONS FOR SUMMARY JUDGMENT?
II. DID THE TRIAL COURT ERR IN DENYING PARTIN’S MOTION FOR DISCOVERY CONFERENCE AND/OR PRE-TRIAL CONFERENCE AND FOR STAY OF MOTIONS FOR SUMMARY JUDGMENT?

¶ 4. Finding no error in the granting of summary judgment to Dr. Sharp and Dr. Gray, we affirm the judgment of the circuit court as to Dr. Sharp and Dr. Gray. Finding error in the granting of summary judgment to NMMC and Dr. Oakes, we reverse the judgment of the circuit court as to NMMC and Dr. Oakes and remand for further proceedings consistent with this opinion.

FACTS

¶ 5. On December 10, 1999, Shirley Par-tin had minor surgery on her ear. On December 13, 1999, Mrs. Partin was admitted to NMMC to have certain post-surgery complications treated. Mrs. Par-tin was diagnosed as having suffered a mild stroke (blood vessel infarctions in the brain), and from December 13, 1999, to December 23, 1999, Mrs. Partin was treated at NMMC. She was under the care of Dr. Oakes during this time.

¶ 6. On December 24, 1999, Mrs. Partin was transferred to NMMC’s rehabilitation unit, where she came under the care of Dr. Sharp. On December 25, 1999, Mrs. Par-tin was allowed to go home for a few hours, after which she returned to the hospital.

¶ 7. On the afternoon of December 30, 1999, Dr. Sharp informed the Partin family that Mrs. Partin’s most recent tests showed no change in her condition. Having determined no immediate danger to Mrs. Partin, Dr. Sharp told the family that he would be going out of town for the weekend, leaving another doctor, Dr. Gray, in charge of Mrs. Partin’s care in his absence. Later in the day on December 30, 1999, Mrs. Partin’s condition began to worsen, and the family became very alarmed by the symptoms she exhibited. Members of the Partin family at this time told nurses at the hospital of Mrs. Partin’s condition and urged the nurses to contact the on-call doctor. The nurses gave Mrs. Partin some medications and said that they would wait to see how she responded before contacting the doctor.

¶ 8. Continuing throughout the day and night of December 30, 1999, and through the early morning hours of December 31, 1999, Mrs. Partin’s condition continued to worsen, and the family, gradually beginning to become “frantic” in light of Mrs. Partin’s condition and the hospital’s inaction, continued strongly to urge the nursing staff to contact a doctor. Among the symptoms Mrs. Partin exhibited were: she was cyanotic, with labored breathing and hypotension, restlessness and agitation, a highly elevated white blood cell count, a sharp decrease in blood pressure, a sharp increase in pulse rate, vomiting a green material, and increasing unresponsiveness.

¶ 9. Roughly twenty hours after the onset of Mrs. Partin’s alarming symptoms, at around 6:30 a.m. on December 31, 1999, the hospital finally contacted Dr. Gray, who ordered that certain medications be given to Mrs. Partin. Roughly forty minutes later the hospital again contacted Dr. Gray, who at that point ordered that the internist in the hospital be called immediately to examine Mrs. Partin. Dr. Charles K. Hill, the internist at the hospital, arrived very soon thereafter (roughly ten to twenty minutes later), but, unfortunately, he was too late to halt Mrs. Partin’s demise. Dr. Hill found Mrs. Partin in an irreversible state of septic shock. Mrs. Partin died at 3:30 a.m. on January 1, 2000. The cause of death was listed as septic shock, secondary to a urinary tract infection.

¶ 10. On December 28, 2001, the executor of Mrs. Partin’s estate, James W. Par-tin, filed his complaint against NMMC, Dr. Oakes, Dr. Sharp and Dr. Gray, alleging medical malpractice and wrongful death. Partin did not find any fault with the “heroic” attempts of Dr. Hill to save Mrs. Partin, noting that Dr. Hill responded immediately and in person upon being notified of Mrs. Partin’s condition. Thus, Dr. Hill was not named in the suit. On March 25, 2002, the last of the answers of the separate defendants was filed. Within roughly five months, on August 8, 2002, the first of the defendants’ motions for summary judgment was filed. Shortly thereafter, two other motions for summary judgment were filed, and in response, on September 23, 2002, Partin filed a motion for discovery conference and/or pre-trial conference and for stay of motions for summary judgment.

¶ 11. On March 24, 2003, Dr. Oakes filed his motion for summary judgment, and on March 28, 2003, the motions came on for hearing. After the hearing, the court took the motions under advisement. On July 11, 2003, the court sent a letter to the attorneys stating that Partin’s motion was denied and that the summary judgment motions of all the appellees were granted. No reasons were stated for the ruling in this letter. The letter instructed the appellees’ counsel to prepare an order and to deliver the order to Partin’s attorney for approval as to form only. The order drafted by the defendants’ counsel, signed by the judge on August 26, 2003, and filed on September 5, 2003, contained several findings that were not specifically articulated by the trial judge anywhere in the record. However, the trial judge signed the order, adopting those findings that were proposed by the appellees’ attorneys.

LEGAL ANALYSIS

I. DID THE TRIAL COURT ERR IN GRANTING THE APPELLEES’ MOTIONS FOR SUMMARY JUDGMENT?

¶ 12. Partin argues generally that there were genuine issues of material fact; therefore, the trial court should not have granted the appellees’ motions for summary judgment. Below we will address the various particular points Partin makes in support of that overarching argument. The appellees generally argue that Partin failed to demonstrate a triable issue of fact by the. use of expert medical affidavit or testimony and that, therefore, summary judgment was proper. We will discuss each of the appellees’ particular arguments below.

STANDARD OF REVIEW

¶ 13. Our standard of review for this issue has been stated as follows:

Our appellate standard for reviewing the grant or denial of summary judgment is the same standard as that of the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure. This Court employs a de novo standard of review of a lower court’s grant or denial of summary judgment and examines all the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, there is no genuine issue of material fact and, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied. Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant should be given the benefit of the doubt.

Williamson ex rel. Williamson v. Keith, 786 So.2d 390, 393(¶ 10) (Miss.2001) (quoting Heigle v. Heigle, 771 So.2d 341, 345(¶ 8) (Miss.2000)). We have also held that the non-moving party must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Dailey v. Methodist Medical Center, 790 So.2d 903, 915-16(¶ 15) (Miss.Ct.App.2001).

DISCUSSION

¶ 14. For purposes of clarity, we will discuss this issue as it relates to each of the appellees separately. Before moving to our discussion of each separate appellee, however, we will briefly discuss the general requirements for summary judgment in a medical malpractice case.

¶ 15. In medical malpractice cases, our law requires that the plaintiff demonstrate four things by expert medical evidence, after having established the doctor-patient relationship: (1) standard of care/duty, (2) breach of the standard of care/duty, (3) causal connection between the breach and the injury/death, and (4) the extent of the plaintiffs damages. McCaffrey v. Puckett, 784 So.2d 197, 206(¶ 33) (Miss.2001). Upon a motion for summary judgment filed by the defendants, while the plaintiff does have the positive duty to show that genuine issues of material fact exist, the ultimate burden is upon the movant to prove the nonexistence of genuine issues of material fact. Dailey, 790 So.2d at 918(¶23). In order for the plaintiff to fulfill its burden, the plaintiff must put on some evidence by expert testimony or affidavit, unless the issues are within the common knowledge of a layperson, and that evidence must be such that fair-minded jurors might, in light of that evidence, differ on the material facts. Dailey, 790 So.2d at 915-16(¶ 15).

¶ 16. However, as noted above in our statement of the standard of review, the evidence presented by the plaintiff must be given the benefit of all favorable inferences that may reasonably be drawn therefrom. Id. At the summary judgment level, “the court does not set out to finally determine negligence nor the extent of damages;” rather, the court upon a motion for summary judgment, merely determines if there are any disputed material issues of fact when the plaintiffs evidence is given the benefit of all reasonable inferences in its favor. Id.

North Mississippi Medical Center, Inc.

¶ 17. As noted above in our recitation of the facts, NMMC did not notify Dr. Gray of the situation with Mrs. Partin until around 6:30 a.m. on December 31, 1999. Partin argues that Mrs. Partin’s problems began on the afternoon of December 30, 1999, and Partin also argues that he and other family members pleaded with the hospital to call a doctor for roughly twenty hours. There is some suggestion in the record that NMMC told the Partins that a doctor had been called on December 30, 1999, but it appears that NMMC actually did not contact the on-call doctor, Dr. Gray, until early in the morning (around 6:30 a.m.) of December 31, 1999. By that time, according the affidavit of Partin’s medical expert, Mrs. Partin’s condition had become irreversible.

¶ 18. NMMC argues in a general sense that Partin failed to provide significant probative evidence, by expert medical testimony or affidavit, of all the essential elements of his claim. More specifically, NMMC argues that Dr. Holzhauer, Par-tin’s proffered medical expert, was not qualified to give expert testimony and, in any event, did not provide sufficient evidence of the three required elements of (1) standard of care, (2) breach, and (3) causation. We will first examine the issue of Dr. Holzhauer’s qualifications, and then proceed to discuss the content of his affidavit. '

¶ 19. NMMC argues that Dr. Hol-zhauer, as an Obstetrician/Gynecologist (“OB/GYN”), was not qualified to testify to the issues of standard of care, breach, and causation relating to the hospital, particularly the hospital’s nursing staff. Based upon our review of the record, we disagree.

¶ 20. We find that the fact that Dr. Holzhauer is an OB/GYN does not by itself dispose of the question of his qualifications to testify to proper hospital procedures, including the procedures nurses should follow when a patient’s condition worsens. His qualifications to testify to these particular issues may not be determined, as NMMC and the other appellees incorrectly argue, by merely stating that Dr. Holzhauer is an OB/GYN. Whether any doctor may testify to a particular matter depends upon his knowledge, training, experience, and the like, and, while an expert’s testimony will be limited to his or her demonstrated area of expertise, there is nothing in our law that prevents an OB/GYN (or some other kind of specialist, for that matter) from having expertise in general hospital procedures as well as another speciality or area. Brown v. Mladineo, 504 So.2d 1201, 1202-03 (Miss.1987); Cowart v. State, 910 So.2d 726, 729-30 (¶¶ 15-18) (Miss.App.2005).

¶ 21. Our case law, in addition to the plain language of Rule 702 of the Mississippi Rules of Evidence, leaves little doubt about this point. On the subject of an expert’s qualifications generally we have held:

A witness “qualified as an expert by knowledge, skill, experience, training, or education” may testify and offer opinions if his “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” M.R.E. 702. However, this Court will limit an expert’s testimony to matters within his demonstrated area of expertise.

Community Bank, Ellisville, Mississippi v. Courtney, 884 So.2d 767, 781(¶52) (Miss.2004). We have also held that “[wjhether an expert witness is qualified to testify is within the trial court’s discretion. The test is whether a witness ‘possesses peculiar knowledge or information regarding the relevant subject matter which is not likely to be possessed by a layman.’ ” Nunnally v. R.J. Reynolds Tobacco Co., 869 So.2d 373, 384(¶ 36) (Miss.2004) (citations omitted). Thus, as long as the witness possesses, in several different areas, that “peculiar knowledge ... not likely to be possessed by a layman,” the witness may be qualified to testify as an expert in those different areas. Id. Applying that rationale to this case, we find that the mere fact that Dr. Holzhauer is an OB/ GYN does not by itself disqualify him from testifying to standard of care, breach, and causation regarding the claim against NMMC. The question is not whether Dr. Holzhauer is an OB/GYN or some other specialist (although we do not deny the relevance of that question), but rather, the question is whether Dr. Holzhauer had the knowledge, skill, training, and experience to possess that “peculiar knowledge” requisite to offering expert opinion regarding the claim against NMMC.

¶ 22. The principles we have been discussing above find helpful expression in the case of Brown v. Mladineo, cited above. The facts of the Brown case are rather disturbing, and we will, therefore, refrain from citing the facts of that case. Suffice it to say that the Brown court held, “ ‘[I]t is the scope of the witness’ knowledge and not the artificial classification by title that should govern the threshold question of admissibility.’ ” Brown, 504 So.2d at 1202 (citing Fitzmaurice v. Flynn, 167 Conn. 609, 356 A.2d 887, 892 (1975)). The Brovm court also declared, clarifying the holding of Hall v. Hilbun, “It was not our intent to adopt a uniquely restrictive standard by holding that only a specialist can testify about the standards of his own specialty.” Brown, 504 So.2d at 1203 (commenting upon Hall v. Hilbun, 466 So.2d 856, 874-75 (Miss.1985)). All of this serves to bolster our conclusion that even though Dr. Holzhauer was not, by specialty or title a nurse or hospital administrator, he very well could have testified to the general requirements of hospitals and nurses, provided that he had the requisite knowledge, training, and experience.

¶ 23. ¶ In that regard, the record shows that Dr. Holzhauer is a board certified OB/GYN, practicing in Columbus, Mississippi. He has extensive experience working in a hospital setting, having treating hundreds of patients in hospitals. He has maintained hospital privileges at a number of hospitals and is currently on the staff of Baptist Memorial Hospital-Golden Triangle in Columbus, Mississippi. He also has a very respectable academic history. Given this training, experience, and corresponding knowledge, it appears that Dr. Holzhauer was qualified to testify to the general standard of care and duties of a hospital to a patient, at the very least so as to demonstrate a genuine issue of material fact. At trial, the jury may decide to discredit Dr. Holzhauer’s opinions, or the court, upon voir dire and tender of Dr. Holzhauer as an expert, may limit the matters to which he may testify, but as the record before us stands, it is clear that Dr. Holzhauer was qualified to give an expert opinion sufficient to create a fact issue that would preclude summary judgment as to NMMC.

¶ 24. Therefore, we disagree with NMMC’s argument that Dr. Holzhauer was not qualified to provide expert medical evidence, as required in medical malpractice cases in Mississippi. We agree with Partin’s argument that Dr. Holzhauer was qualified as an expert and that the weight and credibility to be given to his testimony are matters left to the jury. Palmer v. Biloxi Regional Medical Center, Inc., 564 So.2d 1346, 1355 (Miss.1990).

¶25. Having found that Dr. Hol-zhauer was qualified to provide expert opinion via affidavit, we must now examine the content of the affidavit he produced. In addressing the content of Dr. Hol-zhauer’s affidavit, NMMC argues that it fails to contain the required degree of specificity. NMMC also argues that Dr. Holzhauer’s affidavit does not make any specific reference to the applicable standard of care, breach, and causation. Having reviewed Dr. Holzhauer’s affidavit, we find these arguments to lack merit, because Dr. Holzhauer’s affidavit very clearly refers to a standard of care or duty, breach of that duty, and the injury (death) caused by that breach. Although the affidavit does not employ the particular terms of art “breach, causation,” and the like, those elements are most definitely present in the affidavit, and we have held that a failure to use the terms of art does not render an expert’s affidavit deficient. Paepke v. North Mississippi Medical Center, Inc., 744 So.2d 809, 812 (¶ 12) (Miss.Ct.App.1999).

¶ 26. In this regard, we will consider some of the specific language from Dr. Holzhauer’s affidavit. For instance, the affidavit declares, “The standard of care of a physician for a hospitalized patient is to provide continuous care.... The nursing staff of the hospital has a duty in the event of an emergency or a change in the condition to promptly notify the patient’s physician or the physician taking call for the patient’s condition. Upon failure of either of the above to respond, the hospital has a duty to provide physician care on an emergency basis as needed.” (emphasis added) In light of these statements, we find NMMC’s assertion that Dr. Holzhauer’s affidavit fails to specifically mention duty or standard of care to be plainly meritless.

¶ 27. We also note several other statements that appear in the affidavit as well: “The nursing staff clearly should have notified the covering physician on the afternoon of December 30, 1999 of her symptoms and conditions and should have done whatever was necessary to secure the prompt personal attention to her by a competent physician.... Failure to ... make an adequate response to what was clearly a life-threatening situation was a departure from the applicable standard of care.... Sepsis is a life-threatening infection. That early diagnosis, response and treatment is essential to deal with a sepsis infection. Any appreciable delay greatly decreases the chance of survival. Mrs. Partin began exhibiting symptoms of Sepsis infection during the afternoon of December 30,1999.” (emphasis added)

¶ 28. While, admittedly, we do not see the specific terms “breach” and “causation” used in the language of the affidavit, we do see the specific terms “standard of care” and “duty,” and we most definitely see the meaning or import of all of those terms expressed in the language of the affidavit. To paraphrase what we quoted above, Dr. Holzhauer’s affidavit declared: (1) that the hospital nursing staff had a duty to promptly notify the covering physician of a change in Mrs. Partin’s condition; (2) that Mrs. Partin’s symptoms of a sepsis infection began on the afternoon of December 30, 1999; (3) that the hospital nursing staff failed to promptly notify the covering physician on the afternoon of December 30, 1999 (this failure is not only implicit in the use of the phrase “should have promptly notified,” but it is also uncontra-dicted by NMMC in the record); and (4) that because the infection was not dealt with early enough, it led to Mrs. Partin’s death. In light of this, we find that Dr. Holzhauer’s affidavit did, and that quite plainly, opine as to (1) the standard of care of the hospital nursing staff, (2) the breach of that standard of care, and (3) a causal connection between the breach and the injury or death. We do not here find that the statements in Dr. Holzhauer’s affidavit are, in fact, correct; rather, we simply note that the affidavit does speak to all of the elements required for establishing genuine issues of material fact for a jury to decide in this case.

¶ 29. We also find that NMMC has incorrectly urged this Court, as it did the trial court, to view Dr. Holzhauer’s affidavit in a negative light. As noted above, in considering a motion for summary judgment, the evidence must be viewed in the light most favorable to the party against whom the motion is made. Williamson, 786 So.2d at 393 (¶ 10). In following NMMC’s argument, it asks this court to draw numerous negative inferences and conclusions based upon alleged deficiencies in the form of the affidavit; but to do so would go against the standard of review of summary judgment motions, which requires us to draw inferences in favor of the non-moving party. Dailey, 790 So.2d at 915(¶ 15).

¶ 30. In this regard, we note another aspect of our law on summary judgment: motions for summary judgment should be viewed with a skeptical eye, and in questionable cases, the trial court should deny the motion. Dailey, 790 So.2d at 907 (¶ 3); Burkes v. Fred’s Stores of Tennessee, Inc., 768 So.2d 325, 328(¶ 7) (Miss.Ct.App.2000). All the non-moving party need do in order to defeat a motion for summary judgment is to establish a genuine issue of material fact. Dailey, 790 So.2d at 918(¶ 23). Contrary to NMMC’s assertions, the non-moving party does not have to prove all of the elements of its case in order to survive a pre-trial, summary judgment motion; rather, the non-moving party only has to demonstrate that there are genuine issues of material fact. Id.

¶ 31. In light of this, summary judgment was not proper as to NMMC, because there are triable issues of fact. In its arguments, NMMC has apparently confused the burden Partin faces at trial with the burden Partin faces on a motion for summary judgment. We find that Partin has demonstrated genuine issues of material fact that should have precluded summary judgment in favor of NMMC.

¶ 32. Moreover, we note that, in any event, we are not fully convinced from the record that an expert would be required to demonstrate the negligence of NMMC in this case. The record reflects that the hospital failed or refused to contact the on-call doctor for roughly twenty hours, while Mrs. Partin’s condition gradually and visibly worsened and while her family continued to plead with the hospital to contact the on-call doctor. By way of explanation (or lack thereof) for this twenty hour delay in contacting Dr. Gray, the hospital responds with the bald assertion that Partin put on nothing that would establish a fact issue. NMMC, indeed, appears to studiously avoid dealing with the actual facts of what happened to Mrs. Partin, relying instead upon alleged deficiencies in Partin’s expert witness affidavit. Thus, not to be overly polemical, but given the fact that NMMC does not dispute or attempt to rebut any of the factual allegations Partin makes and supports by expert affidavit, relying instead upon supposed technical defects in Partin’s expert witness, summary judgment might just as well have been granted to Partin on the record before us. Our point in saying that, however, is not to suggest that summary judgment should, in fact, have been granted to Partin; we note this simply to illustrate the fact that summary judgment was certainly not proper for NMMC at this point in the case.

¶ 33. Ultimately, the record makes it clear that the trial court did not give Par-tin the benefit of the doubt, as required under our case law interpreting M.R.C.P. 56, and in many ways, the trial court placed an inappropriately high burden on Partin in order to survive NMMC’s motion for summary judgment. Dr. Holzhauer’s affidavit was sufficient to create a fact issue on the claim against NMMC, and, in any event, the record before us does not exclude the possibility of the layman’s exception to the expert witness rule being applicable to the claim against NMMC. Therefore, we reverse the circuit court’s judgment granting NMMC’s motion for summary judgment and remand to the circuit court for a trial on the merits of Partin’s claim against NMMC.

Dr. Oakes

¶ 34. Partin argues that the trial court committed reversible error in ruling upon Dr. Oakes’s motion, because the motion was not filed at least ten days before the hearing, and Partin also maintains that no hearing was ever set for Dr. Oakes’s motion. Thus, Partin argues that the trial court could not have ruled on Dr. Oakes’s motion on the basis of the hearing on the other appellees’ motions. Dr. Oakes argues that the amendment to Rule 78 of the Mississippi Rules of Civil Procedure allows the trial judge to rule on a motion for summary judgment without a hearing. On the merits of the summary judgment issue, Dr. Oakes makes essentially the same arguments as NMMC; however, we will not address the merits of Dr. Oakes’s arguments regarding summary judgment, because we find that the trial court committed a reversible procedural error in granting Dr. Oakes’s motion for summary judgment. This is so because proper notice had not been given for Dr. Oakes’s motion and a hearing had not been set and noticed as required by Rule 56 of the Mississippi Rules of Civil Procedure.

¶ 35. Dr. Oakes treated Mrs. Partin for a mild stroke. His care and treatment of Mrs. Partin ended on December 23, 1999, after which Mrs. Partin was transferred to the rehabilitation unit and to the care of Dr. Sharp. Dr. Oakes filed his motion for summary judgment on March 24, 2003, four days before the hearing was scheduled for the other appellees’ summary judgment motions, which had been filed some months previous. At the hearing on March 28, 2003, Dr. Oakes’s counsel declared that his motion was not yet ripe for consideration; nonetheless, the trial judge ruled on Dr. Oakes’s motion along with all the other motions.

¶ 36. After reviewing the record, we agree with Partin’s argument, and we find that Dr. Oakes has misunderstood M.R.C.P. 78. Dr. Oakes’s argument appears to suggest that a trial judge can rule on any motion with or without a hearing, with or without any response from the opposing attorney, at any time, pursuant to M.R.C.P. 78. We do not find Rule 78 or our case law to support this argument. M.R.C.P. 78 reads as follows:

Each court shall establish procedures for the prompt dispatch of business, at which motions requiring notice and hearing may be heard and disposed of; but the judge at any time or place and on such notice, if any, as he considers reasonable may make orders for the advancement, conduct, and hearing of actions.
To expedite its business, the court may make provision by rule or order for the submission and determination of motions without oral hearing upon brief written statements of reasons in support and opposition.

¶ 37. Thus, M.R.C.P. 78 declares that courts may establish local rules allowing for certain motions to be decided on written briefs without a hearing, but M.R.C.P. 78 does not, by its terms, fundamentally change the requirements of M.R.C.P. 56 regarding summary judgment. Moreover, our case law on this subject clearly says that the notice and hearing requirements of Rule 56 are to be strictly enforced. For instance, the case of Hurst v. Southwest Miss. Legal Serv. Corp., 610 So.2d 374, 385 (Miss.1992) (overruled as to one particular aspect of its holding not related to Rule 56), declares that the ten day notice requirement for a summary judgment hearing is to be strictly enforced; thus granting a summary judgment motion on less than ten days notice can be reversible error.

¶ 38. However, the cases of Croke v. Southgate Sewer Dist., 857 So.2d 774, 778(¶ 10) (Miss.2003), and Adams v. Cinemark USA, Inc., 831 So.2d 1156, 1163(¶26) (Miss.2002), declare that the error in granting a summary judgment motion without a hearing may be harmless error if there are, indeed, no triable issues of fact. Adams, specifically, declared that a summary judgment motion may be decided upon written briefs, if it appears that there are no genuine issues of material fact. Id. at 778(¶ 12). Thus, while our law in general requires adherence to the notice and hearing requirements of M.R.C.P. 56 and while our case law declares that granting a summary judgment motion without a hearing is error, we have made some allowance for harmless error in cases in which there are clearly no genuine issues of material fact.

¶ 39. In the case sub judice, the record shows that there was nothing substantive put on by Dr. Oakes or by Partin respecting Dr. Oakes’s particular role in the case. This is because, as Dr. Oakes’s counsel openly declared at trial, his motion for summary judgment was not yet ripe, being filed only four days before the hearing on the other parties’ motions. In addition, Partin, not expecting to be dealing with Dr. Oakes’s motion until a later date, did not prepare or deliver any specific response to Dr. Oakes at the March 28, 2003 hearing.

¶ 40. Based upon the foregoing we find that the trial court erred in granting Dr. Oakes’s motion for summary judgment without the proper ten days notice and without a hearing, pursuant to M.R.C.P. 56. Regarding the holdings of Adams and Croke, we cannot say that the granting of summary judgment to Dr. Oakes was harmless error, because the record does not contain enough information regarding the claim against Dr. Oakes to say with certainty that there is no issue of fact regarding Dr. Oakes. Thus, we reverse the granting of summary judgment to Dr. Oakes and remand for a new hearing in which the proper procedure under Rule 56 is followed.

Dr. Sharp

¶ 41. Dr. Sharp makes a similar argument as NMMC, stating that Partin failed to put on probative evidence, by expert medical testimony, of the three necessary elements of a medical malpractice claim. Unlike our conclusion regarding NMMC, we find this argument, when advanced by Dr. Sharp, to have merit. This is because of Dr. Sharp’s peculiar role in the case, and because Dr. Holzhauer’s affidavit does not speak to Dr. Sharp’s conduct in this matter.

¶ 42. Dr. Sharp was Mrs. Partin’s treating physician beginning on December 24, 1999. On the morning of December 30, 1999, after seeing Mrs. Partin one last time, Dr. Sharp went out of town for the holidays. Dr. Sharp informed the family that he was leaving and that Dr. Gray would be on call in his place, should anything arise while he was out of town. It is undisputed that Dr. Sharp was off-duty and off-call during the entire time relevant to this action. That is, it is undisputed that Mrs. Partin’s problems did not surface until after Dr. Sharp had left the hospital to go out of town, leaving Dr. Gray in charge of Mrs. Partin’s care.

¶ 43. Based upon the fact that Dr. Sharp was not in the hospital and possibly not even in town, it seems that summary judgment was proper as to Dr. Sharp. Partin does not allege that it was somehow negligent for Dr. Sharp to go on vacation; thus, the fact that Dr. Sharp was not present (and not expected or required to be present, since he was away on vacation) at the times relevant to this action seems to exonerate him from any liability in Mrs. Partin’s death. In response to this conclusion (that Dr. Sharp should not be held liable for something that happened while he was on vacation), Partin argues that a treating physician has a non-delega-ble duty to his patients and that, therefore, Dr. Sharp may be held vicariously liable for the negligence of Dr. Gray.

¶ 44. Dr. Sharp argues that Partin’s contention is unsupported by any authority and should, therefore, not be considered by this Court. In the alternative, Dr. Sharp argues that off-call doctors should not be held vicariously liable for the negligence of on-call doctors; in other words, Dr. Sharp argues that it does not make sense to hold him liable for something another doctor may have done while Dr. Sharp was out of town.

¶ 45. We agree with Dr. Sharp and find that Partin has failed to cite to any authority in support of this argument. On that basis alone, we could decline to consider the argument. United Plumbing and Heating Co., v. Mosley, 835 So.2d 88, 92(¶ 8) (Miss.Ct.App.2002). However, notwithstanding this procedural bar to Par-tin’s argument, we will briefly consider the merits of the argument.

¶46. We recognize that our law places a non-delegable duty upon physicians in the care and treatment of their patients. Hall, 466 So.2d at 871 (superseded by statute as to a particular aspect of the holding not related to a physician’s non-delegable duty); Dailey, 790 So.2d at 915(¶ 15). However, we do not believe that this non-delegable duty should be understood to create vicarious liability for a doctor who is off-duty, off-call, and out of town at the time that an on-duty, on-call doctor commits malpractice. Such an understanding of the idea of “non-delegable duty” would have extremely negative policy implications. As Dr. Sharp correctly notes, doctors need to go on vacation, just like everyone else, and it would be preferable if doctors could go on vacation without the threat of vicarious liability for negligent acts committed by other doctors in their absence. This principle is too obvious to warrant further discussion; thus, we reject Partin’s argument that a physician’s non-delegable duty, by itself, imposes vicarious liability on an off-call doctor for the malpractice of the on-call doctor serving in his or her place. An off-call doctor may, of course, be directly liable for his own negligence, if his leaving to go off-call (or leaving for vacation) at the particular time was itself negligent or if his choice of on-call doctor was negligent. But neither of those things are argued by Partin, nor are either of those things present in the case subjudice.

¶ 47. We hasten to add that we do not here hold that an off-call doctor may never, under any circumstances, be held vicariously liable for the negligence of an on-call doctor; that is a question that we decline to address here. We simply find Partin’s argument, namely that the non-delegable duty by itself creates such vicarious liability, to lack merit. In addition, we note that Dr. Holzhauer’s affidavit contradicts Partin’s argument on this point in that it says, “If the physician is unable to provide such care personally for any period of time, both the hospital and the physician must ensure adequate coverage by a competent physician.” Thus, the affidavit of Partin’s medical expert does not bear out Partin’s vicarious liability theory, because the affidavit declares a physician’s duty to be met when the physician “ensured] adequate coverage by a competent physician.” This was most certainly done in this case by Dr. Sharp leaving Dr. Gray, a competent physician, on-call.

¶ 48. We find that summary judgment was not improperly granted to Dr. Sharp, because (a) he was not on-duty, on-call, or even in town at that time relevant to this action, (b) he left another, well qualified on-call doctor in his place, and (c) there is no indication that Dr. Sharp’s leaving for vacation when he did was somehow negligent; that is, Dr. Sharp left when Mrs. Partin’s condition was still normal.

¶ 49. We note that a similar circumstance was present in Mattery v. Taylor, 805 So.2d 613, 619-20 (¶ 7-8) (Miss.Ct.App.2002). In Mattery, one of the defendants, a doctor, was on vacation when the plaintiff was allegedly injured, and, because of that fact, the doctor’s motion for summary judgment was granted. Id. Although the Mattery case did not specifically discuss the issue, instead simply noting that the doctor was dismissed, we think the same action was proper in the case sub judice, as it was in the Mattery case.

¶ 50. Therefore, based upon the foregoing discussion we affirm the grant of summary judgment to Dr. Sharp.

Dr. Gray

¶ 51. Dr. Gray’s argument is similar to the arguments of the others, namely, that Partin faded to establish, by medical expert testimony, the standard of care, breach, and causation. Partin argues that there was a fact issue at least as to whether Dr. Gray should have responded in person to the call she received from the hospital.

¶ 52. Dr. Gray was the on-call doctor who was filling in for Dr. Sharp. The undisputed facts in the record indicate that Dr. Gray promptly responded by phone when she was actually called on December 31, 1999. The first time she was called was at around 6:30 a.m. on December 31, 1999, and at this time she ordered some medications to be administered to Mrs. Partin. She was called a second time roughly forty minutes after the first call, and at this time she instructed the nurses to get the internist in the hospital to see to Mrs. Partin immediately. By that time, however, it was too late. But, it is undisputed that Dr. Gray responded promptly, although not in person, but by phone, when she was actually notified of Mrs. Partin’s condition.

¶ 53. We find Dr. Gray’s argument to be persuasive, because the affidavit of Dr. Holzhauer does not speak directly to Dr. Gray’s conduct. The closest Dr. Hol-zhauer’s affidavit comes to implicating Dr. Gray is when it declares, “Generally, as a rule of thumb, a physician should be available with[in] 30 minutes from the time notified.” We find this statement, by itself, to be far too broad to establish a fact issue as to Dr. Gray. This statement hints at the standard of care that Dr. Gray was to observe, but it does not speak to breach or causation in the specific claim against Dr. Gray. In addition, we find in the record evidence that a physician, Dr. Hill, personally responded to Mrs. Partin within roughly fifty minutes to an hour of the time that Dr. Gray was first contacted.

¶ 54. While Dr. Gray’s order to get an internist to personally see to Mrs. Partin may have been late by twenty to thirty minutes (assuming, for the sake of argument, the thirty minute duty stated in Dr. Holzhauer’s affidavit to be correct and assuming a breach of that duty), there is nothing in the record to suggest that an in-person response by Dr. Gray within thirty minutes would have changed Mrs. Partin’s fate. Thus, even accepting Dr. Hol-zhauer’s affidavit as true, it creates no fact issue as to causation. When Dr. Hill arrived, Mrs. Partin’s condition was irreversible, and while the record does bear out a possible fact issue as to whether the hospital’s twenty hour delay in contacting the on-call doctor caused the death of Mrs. Partin, the record does not bear out a fact issue as to whether Dr. Gray’s twenty minute delay in ordering an in-person evaluation by Dr. Hill caused the death of Mrs. Partin. The record does not give any indication that the absence of a twenty or thirty minute delay on the part’ of Dr. Gray would have made any difference after the twenty-plus hour -delay on the part of the hospital. On the contrary, the record before us, which includes Dr. Holzhauer’s affidavit, gives no reason to believe that Dr. Gray, had she responded in person within thirty minutes, would have found Mrs. Partin in any other condition than the one in which Dr. Hill found her.

¶ 55. Therefore, because Dr. Hol-zhauer’s affidavit, even if accepted as true, does not create a genuine issue of material fact on the issues of breach and, especially, causation as to the claim against Dr. Gray, we affirm the granting of summary judgment to Dr. Gray.

II. DID THE TRIAL COURT ERR IN DENYING PLAINTIFF’S MOTION FOR DISCOVERY CONFERENCE AND/OR PRE-TRIAL CONFERENCE AND FOR STAY OF MOTIONS FOR SUMMARY JUDGMENT?

¶ 56. Partin argues that the motions for summary judgment should not have been heard until after more meaningful discovery had been conducted between the parties. Partin also argues that the court should have granted his motion for discovery conference, in light of the continuing difficulty he was having in scheduling matters with the attorneys for the appellees. The appellees argue generally that Partin has waived his argument about needing further discovery through his failure to conduct any discovery prior to the filing of the motions for summary judgment. The appellees also argue that Partin has failed to make the requisite showing as to why he could not properly respond to the summary judgment motions without the benefit of further discovery.

STANDARD OF REVIEW

¶ 57. Our standard of review of a trial court’s management of the pre-trial discovery process is abuse of discretion. Bowie v. Montfort Jones Memorial Hospital, 861 So.2d 1037, 1042(¶ 14) (Miss.2003).

DISCUSSION

¶ 58. The case of Hobgood v. Koch Pipeline Southeast, Inc., 769 So.2d 838 (Miss.Ct.App.2000), contains a helpful analysis of an issue very similar to the one here raised by Partin. In Hobgood, responding to the argument that the plaintiff was not allowed enough time to properly develop the facts before facing a summary judgment motion, the court said:

A party may defend against summary judgment by presenting affidavits that prove “that he cannot for reasons stated present by affidavit facts essential to justify his opposition”; the result of such proof is that the trial court should continue the case to allow discovery to develop further. M.R.C.P. 56(f). The record shows that Hobgood propounded no discovery during the three months between the filing of the complaint and the hearing on summary judgment. The need for additional time as allowed under this rule is not proven merely through allegation:
However, the party resisting summary judgment must present specific facts why he cannot oppose the motion and must specifically demonstrate “how postponement of a ruling on the motion will enable him, by discovery or other means, to rebut the movant’s showing of the absence of a genuine issue of fact.” United States v. Little Al, 712 F.2d 133, 135 (5th Cir.1983).
Marx v. Truck Renting and Leasing Association, Inc., 520 So.2d 1333, 1343-44 (Miss.1987). This exception in Rule 56 may not be used to avoid diligence in pursuing formal discovery; “normally the party invoking Rule 56(f) must show what steps have been taken to obtain access to the information allegedly within the exclusive possession of the other party.” Id. at 1344. No such showing was even attempted, much less made. In Marx, five months passed without the defendant’s attempting any discovery. Id. In this case, Hobgood never sought any discovery, not after filing his answer nor after being served with the summary judgment motion.

Hobgood, 769 So.2d at 845 (¶ 35).

¶ 59. A very similar situation is present in the case sub judice. Here, Partin did not make any written discovery requests until after the motions for summary judgment had already been filed, arid there were roughly six to eight months in which written discovery requests might have been propounded. Roughly one month after the filing of the motions for summary judgment, Partin propounded interrogatories and requests for production of documents to the separate defendants. Partin also shortly thereafter attempted to schedule depositions; however, at this time all parties agreed to await conducting any further discovery and to postpone any depositions until after the summary judgment motions had been decided.

¶ 60. Thus, Partin was in something of a difficult position: he needed to conduct discovery in order to develop his evidence to survive the motions for summary judgment, but the appellees urged the postponement of discovery until after the motions for summary judgment were decided. One of the appellees threatened to file a motion for a protective order to prevent discovery, in the event that Partin insisted on going ahead with discovery while the summary judgment motions were pending and undecided. Why Partin did not insist upon the continuance of discovery for the purpose of building his evidence against the summary judgment motions, we cannot say; nor can we say what the result would have been had Partin made this choice and opposed any motions for protective orders or filed for himself motions to compel discovery. However, it is apparent that Par-tin was not diligent in conducting discovery before the filing of the motions for summary judgment. There were at least five to six months during which Partin could have exercised this required diligence. Under the holding of Hobgood (which found a mere three month failure to pursue discovery to undermine the plaintiffs argument that more discovery was needed) this failure to pursue discovery renders Partin’s argument on this issue meritless. Hobgood, 769 So.2d at 845(¶ 35).

¶ 61. Thus, we find no abuse of discretion in the circuit court’s decision to deny Partin’s motion to stay consideration of the motions for summary judgment filed by the appellees. We decline to address the question of whether the trial court should have ordered a discovery conference, since the trial court did not address that question specifically, due to its ruling on the motions for summary judgment. Further discovery with the remaining defendants will doubtless be attempted on remand, and if Partin continues to have the problems he has alleged, then a discovery conference and scheduling order may very well be necessary at that time. But this Court has neither the prerogative nor the inclination to mire itself in the details of managing the pre-trial discovery process, which is properly left to the discretion of the trial court. Bowie, 861 So.2d at 1042(¶ 14).

¶ 62. Without deciding the question of whether a discovery conference and scheduling order may become necessary at some point in this case, we find Partin’s arguments under this issue to be meritless.

¶ 63. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY IS AFFIRMED IN PART AS TO THE GRANTING OF SUMMARY JUDGMENT TO DR. RICHARD SHARP AND DR. LAURA GRAY AND AS TO THE DENIAL OF THE MOTION FOR DISCOVERY CONFERENCE AND/OR PRETRIAL CONFERENCE AND FOR STAY OF MOTIONS FOR SUMMARY JUDGMENT. THE JUDGMENT IS REVERSED AS TO THE GRANTING OF SUMMARY JUDGMENT TO NORTH MISSISSIPPI MEDICAL CENTER AND DR. THOMAS OAKES AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE TO BE DIVIDED EQUALLY BETWEEN THE APPELLANT AND THE APPELLEES.

KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, CHANDLER, GRIFFIS, AND ISHEE, JJ. CONCUR. BARNES, J., NOT PARTICIPATING.


text:
    Robert D. PARKER, Appellant. v. Phyllis Grosskopf PARKER, Appellee.
    No. 2004-CA-00310-COA.
    Court of Appeals of Mississippi.
    Aug. 9, 2005.

      William A. Pyle, Ridgeland, attorney for appellant.
    Richard C. Roberts, III, Jackson, attorney for appellee.
    Before KING, C.J., MYERS and ISHEE, JJ.
   MYERS, J., for the Court.

¶ 1. Phyllis Parker filed a complaint for divorce from Bob Parker on April 27, 2001. On June 3, 2002, Phyllis filed an amended complaint for divorce. In his answer to Phyllis’s amended complaint for divorce, Bob admitted that Phyllis was entitled to a divorce on grounds of adultery. Thus, on August 28, 2003, the Chancery Court of Madison County granted a divorce to Phyllis on the grounds of uncondoned adultery. The only matters left for resolution then were the equitable division of marital assets, spousal support, and attorney’s fees. The court entered a final judgment on January 8, 2004, and an amended final judgment on January 16, 2004. The court divided the marital assets and ordered the parties to pay their own attorney’s fees.

¶ 2. Aggrieved by the court’s division of the marital assets, Bob now appeals, raising the following five issues:

I. DID THE TRIAL COURT ERR IN CHARGING AGAINST BOB’S SHARE OF THE MARITAL ESTATE THE PARKER AND ASSOCIATES NOTES?
II. DID THE TRIAL COURT ERR IN FINDING THAT THE VALUE OF THE PARKER AND ASSOCIATES NOTES TO BOB WAS $244,772.10, RATHER THAN THE PRESENT CASH VALUE OF THE NOTES WHICH WAS ONLY $210,706.51?
III. DID THE TRIAL COURT ERR IN FINDING THAT THE MORGAN KEEGAN ACCOUNT WAS A MARITAL ASSET?
IV. DID THE TRIAL COURT ERR IN FAILING TO FIND THAT THE DEATH BENEFIT OF THE MORGAN KEEGAN ACCOUNT HAD A VALUE WHICH SHOULD HAVE BEEN CHARGED AGAINST PHYLLIS’S PORTION OF THE MARTIAL ESTATE?
V. DID THE TRIAL COURT ERR IN FAILING TO CREDIT BOB WITH THE $46,500 HE PAID IN TEMPORARY SUPPORT DURING THE PENDENCY OF THE DIVORCE ACTION?

¶ 3. Finding no clear or manifest error in the chancellor’s division of the marital assets, we affirm the judgment of the chancery court.

FACTS

¶ 4. On January 28, 1961, while they were both still in college, Bob and Phyllis were married. A few years later, Bob became an accountant and purchased his father’s accounting practice. Phyllis then began to work for Bob at his accounting firm. She continued to work for the firm for the next thirty-eight years, and she was apparently never paid any salary for her work at the firm. The accounting practice was successful, and Bob and Phyllis lived comfortably. They had three sons, and all of them became accountants like their father. Two sons, Phillip and Kenny, joined Bob at his accounting firm and eventually became partners in the firm. The oldest son, Chris, started his own practice.

¶ 5. Early in 2000, Bob, Phillip, and Kenny worked out an arrangement whereby Phillip and Kenny would buy out Bob’s interest in the accounting firm, and Bob would pursue other interests, including an investment business Bob had begun. This buy-out agreement eventually led to litigation between Bob and Phillip and Kenny, and this buy-out agreement is the subject of one of the issues here on appeal. Thus, we will discuss more particulars of the buy-out agreement and its eventual decline into hostility among the parties below.

¶ 6. Then, after roughly forty years of marriage, on October 4, 2000, Bob and Phyllis separated. As noted, Bob admitted to having committed adultery, and, from the record, it appears that in April of 2001 Bob began openly cohabitating with his mistress (who is some twenty years his junior), doing such things as opening a bank account with her and living with her in a house he purchased, apparently for that purpose. As also noted above, Phyllis filed for divorce on April 27, 2001, and the court granted her the divorce on grounds of adultery on August 28, 2003. The matters of spousal support and equitable division of marital assets then became the subject of further proceedings, leading up to this appeal. Additional facts and particulars will be incorporated into our discussion below.

LEGAL ANALYSIS

I. DID THE TRIAL COURT ERR IN CHARGING AGAINST BOB’S SHARE OF THE MARITAL ESTATE THE PARKER AND ASSOCIATES NOTES?

¶ 7. Bob argues that the notes he held as part of the buy-out agreement with Kenny and Phillip were worthless and uncollectible at the time of the division of the marital assets and that, since these notes were worthless, they should not have been credited against him. Phyllis argues that Bob’s own wrongful conduct in failing to comply with the terms of the buy-out agreement caused the notes to be uncol-lectible, and Phyllis argues further that the chancellor was not manifestly in error in finding that Bob’s conduct respecting the notes constituted a dissipation of marital assets that should have been credited against Bob.

STANDARD OF REVIEW

¶ 8. We employ a deferential standard of review in considering challenges to the findings of a chancellor. Pursuant to this standard of review, we will not reverse a chancellor’s findings unless they are manifestly or clearly erroneous or unless an erroneous legal standard was applied. Southerland v. Southerland, 875 So.2d 204, 206(¶ 5) (Miss.2004); Fisher v. Fisher, 771 So.2d 364, 367(¶ 8) (Miss.2000); Chamblee v. Chamblee, 637 So.2d 850, 859 (Miss.1994). All of the subsequent issues challenge various findings of the chancellor in his division and/or valuation of the marital assets; thus, our standard of review for all of the issues in this appeal will be the same. Because of this, we will not include a separate recitation of the standard of review under each separate issue; instead, we simply declare at the outset that we review all of the issues in this appeal under the clear/manifest error standard applicable to a chancellor’s findings. Id.

DISCUSSION

¶ 9. The record demonstrates that Bob desired to leave his accounting practice in order to focus on an investment business he had begun developing. Because of this, as noted above, he worked out a deal with his sons, Kenny and Phillip, whereby Kenny and Phillip would buy Bob’s share of the accounting business for $310,000. The agreement called for a one time payment of $100,000 and installment payments thereafter of roughly $2000 per month for five years and roughly $1300 per month for ten years. The installment portion of the buy-out was evidenced by two promissory notes in the amount of $100,000 and $110,000. Also, as part of this agreement, Bob executed a non-compete agreement, specifically vowing not to actively pursue his old clients in an attempt to woo them away from Kenny and Phillip. After receiving a number of payments, Kenny and Phillip began to suspect that Bob was violating the non-compete agreement. Upon confirmation that Bob was violating the non-compete agreement, they instituted a breach of contract suit against Bob and began making subsequent payments under the notes into the registry of the court.

¶ 10. In settlement of this lawsuit, Kenny and Phillip agreed to dismiss their suit and forgo their contractual claim for ten times annual billings of any clients who left the firm at Bob’s instigation in exchange for a cancellation of the promissory notes. In the words of the chancellor, “[i]n essence, Bob traded in these notes for the ability to continue to work as a CPA and to establish [his own accounting practice].” Thus, the chancellor found that the reason the notes became no longer payable was because of Bob’s violation of his non-compete agreement with Kenny and Phillip. That is to say, if Bob had not purposefully violated his non-compete agreement, he would have continued to receive payments of roughly $2,000 per month for five years and roughly $1,300 per month for ten years (meaning that he would have received roughly $3,300 combined per month for five years and roughly $1,300 per month for five years thereafter), but, due to his own actions, he had to forfeit the right to receive this income. The chancellor found this to constitute dissipation of marital assets that should be credited against Bob.

¶ 11. We do not find there to be any clear or manifest error in this conclusion. Our review of the record demonstrates that Bob chose to violate the contract, being fully aware of what he was doing as well as the contractual penalty for violation of the non-compete agreement (ten times annual billings for any client who left at Bob’s instigation). Whether Bob was motivated by an underestimation of his sons’ willingness to sue to enforce their rights or by some other reason, we cannot say, but we can say, based upon our review of the record, that Bob willfully violated the contract, and in so doing, he destroyed a definite stream of income. The chancellor said that this constituted dissipation of marital assets, and we can find no manifest error in that conclusion.

¶ 12. This issue is meritless.

II. DID THE TRIAL COURT ERR IN FINDING THAT THE VALUE OF THE PARKER AND ASSOCIATES NOTES TO BOB WAS $244,772.10, RATHER THAN THE PRESENT CASH VALUE OF THE NOTES WHICH WAS ONLY $210,706.51?

¶ 13. Bob argues that the chancellor also erred in his valuation of the notes discussed above. He argues that the proper value should have been present cash value (at the time of the division of the marital assets), as opposed to pay out value. Phyllis argues that Bob cites no authority for this issue and that, further, there was no manifest error in the chancellor’s valuation.

DISCUSSION

¶ 14. We find that this issue is meritless for two reasons. First, Phyllis is correct in her argument that Bob cites no authority to support the proposition that the value should have been present cash value as opposed to pay out value. Issues on appeal that are unsupported by citations to authority need not be considered by this court. Jones v. Howell, 827 So.2d 691, 702(¶ 40) (Miss.2002). Thus, Bob’s failure to cite any authority in support of this argument could, by itself, render this issue meritless.

¶ 15. Second, in any event, we can find no clear or manifest error in the chancellor’s findings on this issue. The pay out value was the actual value that Bob would have received, had he not breached the non-compete agreement, and the chancellor chose this number, at least in part to fully account for Bob’s dissipation of marital assets (see the discussion under issue I. above). We can find no clear error in the chancellor’s findings on this issue.

III. DID THE TRIAL COURT ERR IN FINDING THAT THE MORGAN KEEGAN ACCOUNT WAS A MARITAL ASSET?

¶ 16. Bob argues that the money in the Morgan Keegan account was separate property of his, as opposed to marital property, because the funds used to establish this account came from an inheritance from Bob’s father. He argues on that basis that it was error for the chancellor to include the Morgan Keegan account as a marital asset and to award the account to Phyllis. Phyllis argues that Bob did not prove that this account was established solely with separate assets. Phyllis argues that Bob’s testimony indicates that any separate funds used to establish this particular account were indistinguishably commingled with marital assets and that, therefore, any separate assets in this account lost their character as separate due to commingling with marital assets.

DISCUSSION

¶ 17. We find Bob’s argument on this issue to lack merit. Our review of the record demonstrates that Phyllis’s argument is correct. The money that Bob allegedly inherited from his father was not deposited into this particular account until roughly eight years after his father’s death. In addition, testimony and other evidence indicated that there were undis-putably marital funds that were also deposited into the same account. Thus, based upon our review of the record, we find that any separate funds Bob may have used in this account were commingled with marital assets; therefore, they lost then-character as separate assets. Stewart v. Stewart, 864 So.2d 934, 937(¶ 12) (Miss. 2003); Bodne v. King, 835 So.2d 52, 60(¶ 32) (Miss.2003). This issue is without merit.

IV. DID THE TRIAL COURT ERR IN FAILING TO FIND THAT THE DEATH BENEFIT OF THE MORGAN KEEGAN ACCOUNT HAD A VALUE WHICH SHOULD HAVE BEEN CHARGED AGAINST PHYLLIS’S PORTION OF THE MARTIAL ESTATE?

¶ 18. Bob argues that the Morgan Keegan account has a death benefit of over $100,000 and that this death benefit did not figure into the chancellor’s division of assets. Phyllis argues that the value of the Morgan Keegan account was stipulated to before trial and that Bob cannot now challenge an amount to which he stipulated. Phyllis also argues that Bob never brought to the chancellor’s attention the existence of any death benefit in the Morgan Keegan account. Because of this, Phyllis argues that Bob cannot raise the issue of any alleged the death benefit for the first time on appeal.

DISCUSSION

¶ 19. We find that Phyllis is correct in arguing that Bob did not make any arguments at the trial court level about any death benefit associated with the Morgan Keegan account. Because of this, Bob cannot raise this issue for the first time here on appeal. Educational Placement Services v. Wilson, 487 So.2d 1316, 1320 (Miss.1986); Harbin v. Chase Manhattan Bank, 871 So.2d 764, 766(¶ 6) (Miss.Ct. App.2004); Burcham v. Burcham, 869 So.2d 1058, 1061(¶ 9) (Miss.Ct.App.2004); Mississippi Dep’t of Transp. v. Trosclair, 851 So.2d 408, 415(¶ 19) (Miss.Ct.App. 2003).

¶ 20. Therefore, Bob’s arguments on this issue are also without merit.

V. DID THE TRIAL COURT ERR IN FAILING TO CREDIT BOB WITH THE $46,500 HE PAID IN TEMPORARY SUPPORT DURING THE PENDENCY OF THE DIVORCE ACTION?

¶ 21. Bob argues that he should have been given credit for the $46,500 in temporary spousal support he was required to pay Phyllis during the pendency of the divorce action. Phyllis argues that Bob cites no authority in support of this contention and because of that, the issue need not be considered by this Court. Phyllis also argues that temporary alimony is . not a marital asset that must be taken into consideration in making equitable distribution.

DISCUSSION

¶ 22. Phyllis is correct that Bob cites no authority in support of his arguments on this issue; therefore, this issue lacks merit for that reason alone. If temporary alimony should have been taken into consideration in the equitable distribution, Bob has given us no authority to support that conclusion. As noted above, such a failure to cite to authority can render an issue on appeal meritless. Jones, 827 So.2d at 702(¶ 40). Since Bob cites no authority in support of his argument, we find this issue to be without merit.

CONCLUSION

¶ 23. Although not included in his statement of the issues, Bob also argues that the court should have taken Phyllis’s inheritance expectation into account in making equitable distribution. This argument plainly lacks merit. As Phyllis correctly points out, an expectancy of inheritance is not an asset. Bayless v. Alexander, 245 So.2d 17, 19 (Miss.1971). Moreover, even if the chancellor accepted that Phyllis was certain to inherit something (a conclusion that could not reasonably have been made), it would be impossible to assign any value to that expectancy. Thus, Bob’s arguments about Phyllis’s expected inheritance from her father plainly lack merit.

¶ 24. Finally, Bob also contends that the court did not adequately apply the Ferguson factors, specifically arguing that the chancellor failed to properly consider the needs of the parties for financial security and that Bob has been left without the means to provide for himself. Bob argues that the marital home should be sold and the proceeds divided in order to remedy this problem. Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994). Phyllis argues that Bob, in essence, is improperly asking this Court to conduct a de novo consideration of the Ferguson factors. Phyllis also argues that there was no clear or manifest error in the chancellor’s division of the marital assets.

¶ 25. We find Bob’s arguments in this regard to be plainly meritless. We decline to re-weigh and re-consider the chancellor’s findings on the Ferguson factors. Bob has not demonstrated that the chancellor committed any clear or manifest error that would cause us to seriously question the chancellor’s findings, much less consider reversal in this case.

¶ 26. Therefore, we find from our review of the record that the chancellor’s findings regarding the division and valuation of the marital assets are not manifestly wrong or clearly erroneous. Because of that, we affirm the judgment of the chancery court.

¶ 27. THE JUDGMENT OF THE CHANCERY COURT OF MADISON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., BRIDGES, P.J., IRVING, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ. CONCUR. LEE, P.J., NOT PARTICIPATING.