author:
AMY, Judge.
      GENOVESE, J.,

text:
    LOUISIANA PIGMENT COMPANY, L.P. v. SCOTT CONSTRUCTION COMPANY, INC., et al.
    No. 06-1026.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 2006.
    Clayton A.L. Davis, Samuel B. Gabb, Thomas P. LeBlanc, Lundy & Davis, L.L.P., Lake Charles, LA, for Plaintiff/Appellant, Louisiana Pigment Company, L.P.
    Ward Lafleur, Katherine A. Theunissen, Mahtook & Lafleur, Lafayette, LA, for Defendants/Appellees, Scott Construction Company, Inc., Virgil Cobb.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

h The plaintiff, Louisiana Pigment Company, L.P. (LPC), entered into a lease agreement with defendant, Scott Construction Company, Inc. (Scott), for ten forklifts. Scott assigned the lease to Toyota Motor Credit Corporation (Toyota). After the forklifts were delivered, LPC complained that they did not have the “deluxe” or suspension seats that it requested. Scott attempted to remedy the situation but was unsuccessful. LPC subsequently terminated the lease agreement and returned the forklifts to Scott. Thereafter, Toyota sued LPC for breach of contract in federal court. LPC filed a motion for summary judgment in the federal court proceedings which, after a hearing, was granted. LPC thereafter instituted this suit against Scott and its employee, Virgil Cobb (Cobb), seeking to recover attorney fees that it incurred in defending- the breach of contract suit in federal court. LPC also alleged that its damages were caused by Scott’s fraud. Scott and Cobb filed motions for summary judgment, which the trial court granted. LPC now appeals. For the following reasons, we affirm.

Factual and Procedural Background

The record indicates that in August 2001, LPC wanted to lease ten forklifts to use at its facility in Westlake, Louisiana. According to Cobb, branch manager at Scott, LPC sent a quote package, which contained a description of the equipment it needed, to various vendors. Cobb testified that he submitted a bid, which was to LPC’s liking. Thereafter on August 31,' 2001, Cobb brought a forklift to LPC’s facility for a demonstration. According to Cobb, LPC was interested in leasing this | ^particular forklift; however, there were some concerns about the height of the demonstrated forklift as it was higher than the forklifts that LPC was currently operating. When LPC asked Cobb, if there was a forklift with a lower headrack, he answered affirmatively. LPC and Scott entered into a lease agreement for the forklifts with the lower headrack. This lease agreement was assigned to Toyota.

According to LPC, it informed Scott, through its salesman, David Coontz (Coontz), that it wanted “suspension” or “deluxe” seats. However, Cobb testified that he did not know what LPC was seeking in terms of seats. He further testified that on the day of the demonstration, there was no discussion about the forklift seats. Cobb stated that the forklift that was demonstrated had the same type of seat that was on the forklifts LPC was using at that time. He referred to this type of seat as a “semi-suspension” or a “full suspension” seat.

Cobb testified that the leased forklifts had a different seat than the one demonstrated because of the lower overhead guard option. He explained that the leased forklifts had “the standard seat that Toyota installs on that machine with the lower guard.” Upon further questioning, he stated that if the forklifts did not have the requested lower headrack, a “full suspension” seat would have been available.

Cobb testified that he first became aware of a problem with the seats on the leased forklifts when “[w]e were probably 90 to 120 days into the program when Mr. Koonce [sic] e[a]me into the office one day and said that the customer was not comfortable in the seat, wanted to know if there was anything else available.” According to Cobb, several attempts were made to fix the problem. He stated that Scott tried to readjust the seats and change the angle. “Additionally, [w]e have had [a] product support representative from Toyota come in and try to do a retrofit, try to |3get a different seat and put on there.” Cobb explained that within thirty days of LPC’s complaint, Toyota put a different seat on one of the forklifts. He described this seat as a deluxe seat or a “very expensive suspension seat[.]”

Although this seat met LPC’s needs, according to Cobb,' it violated ANSI and OSHA standards in that a certain amount of distance is required between the top of the seat and the bottom of the headrack. Cobb testified that because of this, “[w]e made a last ditch effort, if you will, to get a waiver for the ANSI standard.... We presented the waiver to [LPC] for these guys to sign off on and release Toyota of any indemnification, I assume, by going with the deluxe seat and these machines. [LPC] refused.” Cobb further testified that it was verbally conveyed to LPC that if it signed the waiver, the deluxe seats would be placed on the forklifts at no cost to LPC.

After fifteen months of using the leased forklifts, LPC sought replacement forklifts from another vendor. The record indicates that on May 2, 2003, LPC sent a letter to Scott informing Scott that it was terminating the lease agreement effective June 2, 2003. On June 20, 2003, LPC sent Scott a letter confirming the termination of the lease agreement. LPC also informed Scott that it had until June 30, 2003 to remove the forklifts from its facility. A carbon copy of this letter was sent to Toyota. Consequently, on August 18, 2003, Toyota filed suit in federal court against LPC for breach of contract. The federal court granted LPC’s motion for summary judgment, finding that the lease contracts were void ab initio due to error of cause in that the leased forklifts were not what LPC ordered.

On September 10, 2004, LPC filed a petition against Scott and Cobb, individually, alleging that:

|4Scott and Virgil Cobb’s actions were fraudulent in that they failed to comply with agreements between Scott and LPC despite admitting that the agreed upon seats had not been delivered and despite continued representations to LPC that the seats would be replaced with compliant seats. Instead, the defendants have allowed Toyota Motor Credit Corporation, Scott’s assignee, to sue LPC for accelerated rental payments, costs, interest, attorney fees and other expenses when LPC was forced to seek replacement forklifts because its continued use of the defective seats was causing a safety hazard to its forklift operators.

It also claimed that the “Defendants are liable to LPC for all attorney fees, interest, costs and other expenses incurred by LPC in defending the suit by Toyota Motor Credit Corporation.”

Although the defendants filed separate motions for summary judgment, their arguments are basically the same. They alleged that the fraud claim had prescribed and that they did not make any material misrepresentations or omissions. After a hearing, the trial court granted the defendants’ motions for summary judgment and dismissed LPC’s claims. LPC appeals and asserts the following assignments of error:

1.) The trial court erred in granting defendants’ motions for summary judgment on plaintiffs fraud claim by concluding plaintiff could not prove fraud, as it is inappropriate on summary judgment for the trial court to weigh the evidence and resolve issues of fact.
2.) The trial court erred in granting defendants’ motions for summary judgment on plaintiffs fraud claim by concluding no genuine issues of material fact existed with regard to defendants’ intent to defraud plaintiff, as subjective facts such as intent are typically inappropriate for resolution on summary judgment and the undisputed facts in this case clearly give rise to an inference of fraudulent intent on the part of defendants sufficient to at least create a genuine issue of material fact.
3.) The trial court erred in granting defendants’ motions for summary judgment on plaintiffs fraud claim and innominate tort cause of action for fraudulently inducing meritless litigation against plaintiff, inasmuch as the trial court simply failed to even address these claims.

| ^Discussion

Standard of Review & Summary Judgment

Appellate courts review summary judgments de novo and use the same criteria as the trial court in determining whether summary judgment is appropriate. Nguyen v. Underwriters at Lloyd’s, 05-1407 (La.App. 3 Cir. 5/3/06), 929 So.2d 821, writ denied, 06-1332 (La.9/22/06), 937 So.2d 387. Pursuant to La.Code CivJP. art. 966(B), summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.”

Louisiana Code of Civil Procedure Article 966 charges the moving party with the burden of proving that summary judgment is appropriate. However, when the movant will not bear the burden of proof at trial on the matter that is before the court, the movant’s burden on the motion does not require him to negate all of the essential elements of the adverse party’s claim, but rather to point out to the court that there is an absence of factual support for one or more of the elements essential to the adverse party’s claim. See La.Code Civ.P. art. 966(C)(2). If the adverse party fails to produce factual support to convince the court that he can carry his burden of proof at trial, there is no genuine issue of material fact and granting of the motion is mandated. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606; Hayes v. Autin, 96-287 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied, 97-281 (La.3/14/97), 690 So.2d 41.

Nguyen at 823.

Fraud

LPC’s fraud claim has two components. First, LPC contends that “Scott and Virgil Cobb repeatedly assured LPC the seat issue would be remedied even though Scott and Virgil Cobb had no intention of remedying the problem, thereby causing LPC to remain in the lease relationship with TMCC for almost 15 months[.]” Second, LPC alleges that “Scott and Virgil Cobb’s intentional actions in knowingly adopting |fia false position contrary to the previous fifteen months of promises and assurances given LPC constitutes legal fault that was the cause of damages to LPC.”

With regard to the trial court’s actions, LPC argues that it was inappropriate on a summary judgment motion for the trial court to weigh the evidence and resolve issues of fact. Additionally, LPC contends that “subjective facts such as intent are typically inappropriate for resolution on summary judgment[.]” According to LPC, “the undisputed facts in this case clearly give rise to an inference of fraudulent intent on the part of the defendants ’ sufficient to at least create a genuine issue of material fact.”

Louisiana Civil Code Article 1953 states that: “Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other.” Therefore, “[t]he two elements essential to establishing legal fraud are an intent to defraud or gain an unfair advantage and a resulting loss or damage.” Mack v. Evans, 35,364, p. 3 (La.App. 2 Cir. 12/5/01), 804 So.2d 730, 733, writ denied, 02-0422 (La.4/19/02), 813 So.2d 1088.

At the summary judgment hearing, defense counsel agreed with the trial court’s statement that certain factual findings must exist to prove fraud. Nevertheless, defense counsel argued that the trial court need not address those findings as LPC’s fraud claim had prescribed. When defense counsel began reciting the case’s factual background, the trial court posed the question: “How did Scott Construction commit fraud?” Defense counsel responded:

They say that there were misrepresentations and I don’t think they can point to any misrepresentations about these seats and what was being done to resolve it. But I’ll tell what their argument is in brief and why, number one it’s prescribed and number two, it’s not fraud. They |7say, you know, we’re lulled into this false sense of security during the lease and low and behold once the lease is cancelled, there is a letter, and this is the key to their argument. There is a letter dated August 4, 2003, from Virgil Cobb, the sales manager with Scott Construction to Louisiana Pigment, and it basically says, look we tried to resolve this situation, but we think the lease is valid and we think that you owe Toyota Motor Credit Company. And their argument is that somehow Toyota Motor Credit Company relied on this letter that wasn’t sent to Toyota Motor Credit Company and that this letter was somehow a revelation to them, that all along Scott Construction had been lying to them about what they were doing to try to resolve the lease.

LPC explained the basis for its fraud claim:

[O]ne of our arguments is that the Toyota Motor case was based upon the knowingly false position assumed by Scott Construction. That is, they had for fifteen months told us we messed up, it’s our mistake, we’ll fix it. As soon as Toyota Motor apparently starts putting some pressure on them about collecting on these leases[,] Virgil Cobb flip flops, writes a letter that says, hey we complied [one] hundred percent with our agreements, you guys owe the leases[. 0]n that representation, Toyota Motor credit files a suit to enforce those lease agreements.
But here is the argument. Toyota Motor Credit had they been given the truth about the situation, would not have filed this lawsuit.

In its oral ruling, the trial court explained:

I don’t think that you could prove fraud in this case. I don’t think by the fact that they told you, the people that you dealt with to get the forklift, hey we’re going to work this thing out. We’re going to get with Toyota and work it out. In certainness [sic] in their interest to work it out, they want to get their little fee that they were getting. So, there’s nothing fraudulent about that. They’re trying to work it out. They were unsuccessful in working it out; okay? I don’t know if you can prove malice; okay? You’re going to have a problem proving malice, intent, and knowledge to defraud. That’s the problem with this case.... Now, the fact that they turned around and told the Toyota people something maybe something else, that you all were some bad people, you all wasn’t paying your bills and all this kind of stuff. I don’t know about all that. That’s what you say.
I’m going to grant the motion for summary judgment in regard to the fraud claim. I don’t find that a prescription situation exists; | ¿however, I do find there is some material issue of fact with regards to the attorney’s fees for the prosecution of the Federal suit which Scott was not a party to. And I don’t find that there’s no way that Louisiana Pigment, as I appreciate the fraud law, could prove fraud had I let this case go trial. And in the interest of judicial economy, and costs of the litigant, I’m going to grant the motion for summary judgment.

At the outset, we note that this court has consistently held that subjective facts such as intent, motive, malice, knowledge or good faith are normally inappropriate for a summary judgment determination. Murphy’s Lease & Welding Serv. Inc. v. Bayou Concessions Salvage, Inc., 00-978 (La.App. 3 Cir. 3/8/01), 780 So.2d 1284, writ denied, 01-1005 (La.6/1/01), 793 So.2d 195. “However, even though granting a summary judgment based on an intent issue may be rare, it can be done when there is no issue of material fact concerning the pertinent intent.” Carter v. BRMAP, 591 So.2d 1184, 1189 (La.App. 1 Cir.1991).

Insofar as the defendants will not bear the burden of proof at trial, we must determine whether they, as the moving parties, have shown the absence of one or more elements essential to LPC’s fraud claim. Meynard v. Pickett Indus., Inc., 04-887 (La.App. 3 Cir. 12/15/04), 896 So.2d 126; La.Code Civ.P. art.966(C)(2).

After reviewing the record, we note that the defendants presented evidence in support of their argument that Cobb did not make any fraudulent statement with regard to fixing the forklift seats. The defendants submitted Cobb’s affidavit dated September 20, 2005, in which he outlined the steps that were taken to provide LPC with the desired seats. Although a suspension seat was installed on one of the forklifts, “doing so raised the seat height, causing the lower overhead guard model to be out of compliance with ANSI standards and OSHA regulations.” Cobb stated that LPC refused to “execute a waiver form regarding the regulatory noncompliance.” When another solution was proposed, LPC declined, stating that it was obtaining ^replacement forklifts from another vendor. The fact that the defendants agreed to remedy the situation, but were unsuccessful, does not mean that fraud was committed. See Automatic Coin Enter., Inc. v. Vend-Tronics, Inc., 433 So.2d 766, 767-68 (La.App. 5 Cir.1983) (emphasis added), writ denied, 440 So.2d 756 (La.1983) (where the court held that “fraud cannot be imputed from alleged misrepresentation(s) alone but, rather, must be based solely on a person’s intent not to perform. The general rule is that an action for fraud cannot be asserted based upon statements promissory in nature and relating to future actions.”)

In their brief submitted to this court, the defendants allege that Toyota sued LPC because of LPC’s refusal to make payments under the lease. The defendants entered into evidence an excerpt from the deposition of Steve Bourdon (Bourdon), Toyota’s Territory Finance Manager, referencing a customer contact report, also entered as evidence, prepared by Bourdon when he visited LPC’s facility on June 3, 2003, after receiving notice that LPC “decided to return the units as being unsuitable and unsafe for its operations because of the seat.” Bourdon wrote in his report that: “I said [Toyota] requires payments as agreed. If they return the units they [sic] obligated to pay all remaining charges, payments and residual value.... I explained that I would research their issues, but that all payments needed to be made per the terms of their signed lease agreement.”

This report indicates that on June 3, 2003, Toyota advised LPC that even if it returned the forklifts, LPC was still obligated to make the payments pursuant to the lease agreement. Furthermore, a review of the record reveals that on June 27, 2003, Toyota sent a letter to LPC informing it that it was in default of the lease, that Toyota was accelerating all amounts due, and that failure to pay would result in legal action [ mbeing taken. We note that it was not until August 4, 2003 that Cobb wrote the letter to LPC informing it that Scott had “meet [sic] all requirements and terms of its agreement with [LPC] and that [LPC] is obligated to [Toyota] for the balance due on the referenced forklifts.” Given these dates, we find that Toyota’s decision to institute suit against LPC for nonpayment was not predicated on the letter Cobb wrote to LPC.

As the defendants have demonstrated the absence of factual support for an element essential to LPC’s fraud claim, LPC must “produce factual support sufficient to establish that [it] will be able to satisfy [its] evidentiary burden of proof at trial[.]” La.Code Civ.P. art. 966(C)(2).

After a review of the record, we find that LPC failed to produce factual support sufficient to establish that it would be able to prove its allegation of fraud at trial. Specifically, LPC has not demonstrated that the defendants intended to defraud it or gain an unfair advantage. The exhibits that LPC filed in opposition to summary judgment, particularly excerpts from the depositions of Cobb and various LPC employees, illustrate a willingness on Scott’s part to replace the seats on the forklifts with the ones that LPC initially requested. Likewise, Coontz’s affidavit provides no support for LPC’s fraud allegation as he simply acknowledged that the forklifts had the incorrect seats and that he attempted to have the problem corrected. Further, LPC has not submitted any evidence which proves that in filing its suit against LPC, Toyota relied on statements Cobb wrote in his letter to LPC.

“In conclusion, we find [that LPC’s] conjectural allegations of fraud are too speculative.” Shelton v. Standard/700 Associates, 01-0587, p. 9 (La.10/16/01), 798 So.2d 60, 67. As no genuine issue of material fact exists, the defendants’ motions for summary judgment were properly granted.

11¶Remaining Assignment of Error

LPC alleges that the trial court failed to address its claim for an innominate tort cause of action for fraudulently inducing meritless litigation against LPC. After reviewing both LPC’s petition and its brief submitted to this court, we note that the same set of facts are used to support LPC’s fraud claim and its claim for an innominate tort cause of action. As we have found that LPC has failed to produce factual support that demonstrates that it will be able to meet its burden of proving fraud at trial, we, likewise, find that LPC will be unable to satisfy its evidentiary burden of proof as it relates to this claim. Therefore, this assignment lacks merit.

DECREE

For the above reasons, the judgment of the trial court granting the defendants’ motions for summary judgment is affirmed. All costs of these proceedings are assessed against the plaintiff, Louisiana Pigment Company, L.P.

AFFIRMED.

GENOVESE, J., dissents and assigns written reasons.

GENOVESE, J.,

dissenting.

| ¶ Plain and simple, the trial court granted summary judgment on a fraud claim. The majority proposes an affirmation. I disagree and dissent.

This court has consistently held that subjective facts such as intent, motive, malice, knowledge, or good faith are normally inappropriate for a summary judgment determination. Murphy’s Lease & Welding Serv., Inc., v. Bayou Concessions Salvage, Inc., 00-978 (La.App. 3 Cir. 3/8/01), 780 So.2d 1284, writ denied, 01-1005 (La.6/1/01), 793 So.2d 195. Such is the case here. LPC filed a fraud and misrepresentation claim against Scott and Toyota. Summary judgment was granted in favor of Scott, et al., on said fraud and misrepresentation claim.

Louisiana Civil Code Article 1953 states that: “Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other.” Therefore, “[t]he two elements essential to establishing legal fraud are an intent to defraud or gain an unfair advantage and a resulting loss or damage.” Mack v. Evans, 33,364, p. 3 (La.App. 3 Cir. 12/5/01), 804 So.2d 730, 733, writ denied, 02-422 (La.4/19/02), 813 So.2d 1088.

Both plaintiff and defendants presented evidence via deposition and affidavit in opposition to each other’s claim. A subjective fact, such as fraudulent intent, is typically inappropriate for resolution by summary judgment. The countervailing evidence presented in this summary judgment certainly creates a genuine issue of | ^material fact, thereby allowing this case to proceed to trial. When a summary judgment is filed, as in this fraudulent misrepresentation case, the trial court cannot weigh the evidence and resolve issues of fact. Such is the case here. The issue of intent in a fraudulent misrepresentation case is not ripe for summary judgment. Consequently, I dissent from the majority. I would reverse the trial court’s grant of summary judgment in favor of the defendants and allow the case to proceed to trial on the merits.

      . We note that excerpts from Cobb's deposition were submitted in opposition to the defendants' motions for summary judgment. Only those documents contained in the summary judgment submission have been considered in review of the summary judgment. However, for ease of discussion, information from elsewhere in the record is referred to in the initial paragraphs of the “Factual and Procedural Background.”

      . Scott was not a party to this litigation.


source: Caselaw Access Project

author: WALLER, Presiding Justice,

license: Public Domain

text:
    Peter NEGLEN, M.D. and Seshadri Raju, M.D. v. Lillian BREAZEALE, individually, and as next of Kin of deceased, James C. Breazeale, and on behalf of the wrongful death beneficiaries of James C. Breazeale.
    No. 2005-IA-01309-SCT.
    Supreme Court of Mississippi.
    Nov. 2, 2006.
    Rehearing Denied Jan. 18, 2007.

      Whitman B. Johnson, III, Lorraine W. Boykin, Jackson, attorneys for appellants.
    Ted G. Meadows, Terry L. Jordan, attorneys for appellee.
   WALLER, Presiding Justice,

for the Court.

¶ 1. Lillian Breazeale, individually and on behalf of the wrongful death beneficiaries of James C. Breazeale, filed a complaint based on products liability and medical malpractice against Guidant Corporation, Inc., Endovascular Technologies, Inc., Peter Neglen, M.D., Seshadri Raju, M.D., and Greg Keller, Individually and as Sales Representative for Endovascular Technologies, Inc. Dr. Neglen and Dr. Raju filed a motion for summary judgment, asking the Circuit Court of Nesho-ba County to dismiss the medical malpractice claims based on the two-year statute of limitations. The circuit court held that, under the discovery rule, the complaint was timely filed. We granted Dr. Neglen and Dr. Raju permission to bring this interlocutory appeal. See M.R.A.P. 5. We find that questions of fact exist as to whether the discovery rule applies and that the circuit court therefore properly denied the motion for summary judgment.

FACTS

¶2. James Breazeale was admitted to the River Oaks Hospital with an abdominal aortic aneurysm. An aneurysm is an abnormally large blood vessel or one that balloons outward. The abdominal aorta is a large blood vessel that supplies blood to the abdomen, pelvis, and legs. To surgically repair an abdominal aortic aneurysm, the affected blood vessel is replaced with a graft made of synthetic material. In this case, the graft used was one manufactured by Guidant Corporation and marketed by Endovascular Technologies.

¶ 3. James underwent surgery on February 26, 2001, for repair of the aneurysm. Dr. Raju and Dr. Neglen were the surgeons. When James was in the recovery room, he complained of severe abdominal pain and experienced post-surgical bleeding. James was once again taken to surgery, where the surgeons found he was bleeding extensively from the graft site. James was placed on a ventilator and died three days later, on March 1, 2001.

¶ 4. Filed on February 25, 2004, Lillian’s complaint alleges that Dr. Neglen and Dr. Raju negligently inserted the graft. The doctors filed a motion for summary judgment alleging that Lillian’s complaint was time barred because it was filed after the two-year statute of limitations had expired. Lillian claims that the discovery rule applies to her medical malpractice cause of action because she did not become aware of the fact that the graft was defective until Guidant pled guilty to fraud (failing to report the graft’s adverse events to the FDA) in June of 2003. The circuit court agreed with Lillian’s claim that the discovery rule applied and denied the doctors’ motion for summary judgment. From this ruling, the doctors appeal.

DISCUSSION

¶ 5. We apply a de novo standard of review concerning the propriety of a trial court’s grant or denial of summary judgment. McKinley v. Lamar Bank, 919 So.2d 918, 926 (Miss.2005). See also Montgomery v. Woolbright, 904 So.2d 1027, 1029 (Miss.2004); Brown ex rel. Ford v. J.J. Ferguson Sand & Gravel Co., 858 So.2d 129, 130 (Miss.2003); Armistead v. Minor, 815 So.2d 1189, 1191-92 (Miss.2002). We look at all evidentiary matters in the record, including, inter alia, admissions in pleadings, answers to interrogatories, depositions, and affidavits. McKinley, 919 So.2d at 926. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. Id.

¶ 6. Lillian claims the two doctors (1) negligently inserted the graft; and (2) intentionally withheld information from James, who would not have undergone the surgery had he known all of the facts about the Guidant graft.

The Discovery Rule and the Statute of Limitations

¶ 7. The discovery rule tolls the statute of limitations until a plaintiff should have reasonably known of some negligent conduct, even if the plaintiff does not know with absolute certainty that the conduct was legally negligent. Wright v. Quesnel, 876 So.2d 362, 366 (Miss.2004) (citing Wayne Gen. Hosp. v. Hayes, 868 So.2d 997, 1000-01 (Miss.2004)). In other words, statute of limitations begins to run when the patient can reasonably be held to have knowledge of the injury itself, the cause of the injury, and the causative relationship between the injury and the conduct of the medical practitioner. Hayes, 868 So.2d at 1000 (citing Williams v. Clay County, 861 So.2d 953, 976 (Miss.2003), overruled on other grounds, Page v. Univ. of So. Miss., 878 So.2d 1003, 1005 (Miss.2004)). Miss.Code Ann. § 15-1-36(2) (Rev.2003) provides:

[N]o claim in tort may be brought against a licensed physician ... for injuries or wrongful death arising out of the course of medical, surgical or other professional services unless it is filed within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered ....

(Emphasis added).

¶ 8. To benefit from the discovery rule, a plaintiff must be reasonably diligent in investigating his or her injuries. Wright, 876 So.2d at 366 (citing Hayes, 868 So.2d at 1001). The focus is on the time that the patient discovers, or should have discovered by the exercise of reasonable diligence, that he or she probably has an actionable injury. Id. at 366. The discovery rule protects persons with latent injuries, that is, injuries which are not manifested or ascertainable within a reasonable time following the negligent act. Id. A latent injury is defined as one where the “plaintiff will be precluded from discovering harm or injury because of the secretive or inherently undiscoverable nature of the wrongdoing in question ... [or] when it is unrealistic to expect a layman to perceive the injury at the time of the wrongful act.” PPG Architectural Finishes, Inc. v. Lowery, 909 So.2d 47, 50 (Miss.2005) (quoting Donald v. Amoco Prod. Co., 735 So.2d 161, 168 (Miss.1999), on subsequent appeal sub nom., Howard v. Totalfina E & P USA, Inc., 899 So.2d 882 (Miss.2005)). We have gone so far as to say that “if a latent injury is not present the discovery rule would not apply.” Lowery, 909 So.2d at 50 (citing Chamberlin v. City of Hernando, 716 So.2d 596, 602 (Miss.1998)) (emphasis in original).

¶ 9. The discovery rule protects plaintiffs with latent injuries. Wright, 876 So.2d at 366. A latent injury precludes the plaintiff “from discovering harm or injury because of the secretive or inherently undiscovera-ble nature of the wrongdoing in question ... [or] when it is unrealistic to expect a layman to perceive the injury at the time of the wrongful act.” Lowery, 909 So.2d at 50 (quoting Donald, 735 So.2d at 168).

¶ 10. A layperson undergoing a surgical procedure trusts in and relies on the instructions, professional expertise and guidance of his or her physician. Dr. Ne-glen and/or Dr. Ragu told Lillian that the complications arising from James’ surgery were ordinary risks that accompany any surgery. This statement raises a question of fact as to when the alleged negligence could have been discovered because, in fact, the two doctors were required to inflate artificially James’ blood vessels to insert the graft. Also, a question of fact exists as to whether the doctors should have abandoned the procedure when they determined that James’ blood vessels were brittle. This information was not given to Lillian. Under these circumstances, we cannot conclude as a matter of law that Lillian did not act diligently by trusting the doctors’ opinions and waiting over two years before requesting James’ medical records.

¶ 11. We therefore find that, since questions of fact exist, the doctors’ motion for summary judgment was properly denied.

CONCLUSION

¶ 12. The circuit court’s denial of the motion for summary judgment filed by Dr. Neglen and Dr. Raju is affirmed, and this case is remanded to the circuit court for further proceedings consistent with this opinion.

¶ 13. AFFIRMED AND REMANDED.

SMITH, C.J., COBB, P.J., DIAZ, EASLEY, CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR.

      . Guidant Corporation, Inc., Endovascular Technologies, Inc., and Greg Keller, Individually and as Sales Representative for Endovas-cular Technologies, Inc., are not parties to this appeal.

      . In her complaint, Lillian describes this cause of action as "lack of informed consent.”


author: IRVING, J., GRIFFIS, J.,

text:
    Johnny TURNER, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00255-COA.
    Court of Appeals of Mississippi.
    Jan. 2, 2007.

      William Michael Mallette, Attorneys for Appellant.
    Office of the Attorney General by Deirdre McCrory, attorneys for appellee.
   IRVING, J.,

for the Court.

¶ 1. Johnny Turner was convicted in the Circuit Court of Oktibbeha County of the crimes of manufacturing methamphetamine and possession of .02 grams of methamphetamine. He was sentenced, as an habitual offender, to serve life in the custody of the Mississippi Department of Corrections on each count. The two life sentences were to be served concurrently, and neither are subject to suspension, reduction, parole, or probation. Turner appeals and argues that: (1) he was denied his right to confrontation, (2) the trial court should have considered his motion to suppress, (3) he was entitled to a circumstantial evidence instruction, and (4) his trial counsel was ineffective. As we explain below, we find that this case must be reversed and remanded for proceedings consistent with this opinion.

FACTS

¶ 2. Acting on a tip from Mary Shaffer Roberts, the Tri-County Narcotics Task Force secured a search warrant on June 28, 2001, for Turner’s residential property. The affidavit supporting the warrant stated that Roberts was a known and reliable informant. When they arrived the next day, the narcotics agents found Turner in a shop, behind his house. Various items were seized from Turner’s pockets, the shop, his house, and two trucks in his yard. He was arrested and charged with manufacturing and possession of methamphetamine.

¶ 3. Two motions to suppress were filed but never heard. The first, filed July 23, 2002, was ruled abandoned by the trial court, when Turner’s counsel did not appear at the hearing. The second, filed April 30, 2004, was ruled untimely.

¶4. Trial began on May 4, 2004. The continuances from 2002 to 2004 are largely attributed to Roberts’s refusal to testify and successful efforts to dodge subpoena service. At trial, Agent David Holley admitted that he had no prior relationship with Roberts. Holley testified that he had not met Roberts before the day that she gave the information which was included in the underlying facts and circumstances supporting the search warrant. Holley was asked this question: “Okay. But just so we make sure for the jury, you never met the confidential informant until that night, correct?” He answered, “Correct.”

115. After Holley finished his testimony, defense counsel informed the court that he had a motion that he wanted to make outside the presence of the jury. The following exchange occurred:

BY MR. FOLSE: Your Honor, we have a motion to dismiss at this point before we go any further with regards to the underlying facts and circumstances contrary to what officer Holley has testified to here about. Well, what he testified was that he just met her that night. What he wrote on his underlying facts and circumstances report, Your Honor, was that I was contacted by a known and reliable confidential informant of the Tri-County Narcotics Task Force. On this date the Cl informed this officer that she was at the residence of Johnny Turner. Talking about the same person, Your Honor. Affiant, to me that assumes it was taken under oath — this was taken under oath. I don’t know if Mary’s going to appear here today and cure [sic] all this up for us or not, but she ain’t been here so far. Your Honor, we don’t think they were on the property legally.
* * * *
BY THE COURT: Overruled. The question as to whether or not the officers were legally on the premises is not before the Court. That is brought before the Court’s attention on a motion to suppress. There’s been no motion to suppress heard in this case, and been no motion to suppress brought to the Court’s attention. I see that there’s one filed on April the 30th. This case has been pending substantially before then. There’s no issue as to the legality of the officers and legality of the search warrant, period. The officers were acting under the authority of a warrant whose legality, the issuance of, has not been questioned previously and not been brought to the Court’s attention. Period.
BY MR. MALLETTE (co-counsel for the defense): May I speak, Your Honor, on that issue?
BY THE COURT: Certainly.
BY MR. MALLETTE: The only issue I wish to raise is that the motion you’re speaking of is one that I filed in this case.
BY THE COURT: April 30th. And my understanding is you’re no longer in the case or wasn’t in the case. It’s in the court file, but was never brought to the Court’s attention.
BY MR. MALLETTE: Yes, sir. When I filed that, I spoke with the court administrator, Ms. Langford, and she informed me that that would be something that the Court would entertain the day of trial.
BY THE COURT: Hasn’t been brought up [sic] to my attention. There’s been no objection to the introduction of any evidence found and recovered pursuant to the warrant. If it is issued, a warrant is issued by a magistrate, the defendant not only must file the motion and bring it to the Court’s attention, the defendant has the burden of proof in going forward on the motion — not the State — if a warrant was issued. And a warrant’s [sic] issued in this case.
íí?
BY THE COURT: I expect that the court administrator also referred you to the order of arraignment in the case. Let’s see. Discovery is required by defendant and request for discovery should be made no later than February 11, 2002., and completed 30 days from the date thereof. Pretrial motions shall be filed and noticed to the court administrator no later than February the 16th of 2002. The failure of this shall be an abandonment of said motions pursuant to rule 9.04. Signed by Judge John M. Montgomery, circuit judge.
BY MR. MALLETTE: Yes, sir. I understand that. Just for purposes of the record, could I just make a proffer that I did discuss that with the court administrator and she did inform me that it would be the practice of this Court at the time that I spoke with her that the Court would entertain that, I guess, on this date. This being the trial date.

ANALYSIS AND DISCUSSION OF THE ISSUES

I. Should the trial court have considered the motion to suppress ?

¶ 6. Turner argues that the trial court abused its discretion in failing to entertain the ore tenus motion to suppress raised during trial, as well as the April 30 pretrial motion to suppress. The State responds that the trial court was within its discretion in refusing to hear an untimely motion.

¶ 7. “[T]he court may set a reasonable deadline for the filing and hearing of all pretrial motions. Pretrial motions shall include ... motions to ... suppress evidence....” URCCC 8.02.

It is the duty of the movant, when a motion ... is filed ... to pursue said motion to hearing and decision by the court. Failure to pursue a pretrial motion to hearing and decision before trial is deemed an abandonment of that motion; however, said motion may be heard after the commencement of trial in the discretion of the court.

URCCC 2.04.

¶ 8. Recently, we held that a motion for DNA analysis had been abandoned under Rule 2.04. Pittman v. State, 928 So.2d 244, 247-48(¶ 5) (Miss.Ct.App.2006). The motion had been filed before trial, but the defendant had not brought the matter for hearing before the court. Id. at 247(¶ 5). Procedural bar notwithstanding, we held that Pittman did not sustain his burden of proof on the motion. Id. at 248(¶ 6). Likewise, we have held that a pro se motion to dismiss defense counsel was abandoned under Rule 2.04 when it was not brought to the trial court’s attention. Roy v. State, 878 So.2d 84, 89(¶ 23) (Miss.Ct.App.2003). While the trial court has a responsibility to intervene when ineffective assistance of counsel is apparent, that was not the case in Roy. Id. at (¶ 25).

¶ 9. In this case, the arraignment order provided that pretrial motions were to be filed by February 26, 2002. On July 24, Turner moved to continue the trial because of the unavailability of Roberts as a witness. In a separate motion, Turner moved to suppress the evidence based on an illegally obtained warrant. The trial court granted the motion to continue, because the “State has provided new additional discovery on July 24, 2002, and the Defendant has a material witness unavailable.” On September 12, Turner filed a second motion to suppress in which he specified his allegations that the search warrant was illegal:

the drug enforcement agencies in this case relied on two written statements which were supplied to the Defendant in discovery, the first statement typed and the second handwritten and unsigned, allegedly given by Maria [sic] Roberts in order to obtain the search warrant in this case. Based upon information received by Kathy Shaffer, the mother of the witness, the Defendant would expect the sworn testimony of Maria [sic] Roberts was coerced or otherwise pressured into signing the typed statement, and that she did not give the unsigned statement at all. Further, the Defendant would show that the drug enforcement agents gave information to the Judge who signed the search warrant that the information on which the warrant was based was information supplied by a “known and reliable confidential informant of the Tri-County Narcotics Task Force;” and through sworn testimony of Maria [sic] Roberts the Defendant would show that she had never given any prior information to any drug agency, and therefore, the Underlying Facts and Circumstances affidavit presented to the Judge who signed the search warrant contained material misrepresentations of fact so as to render the issuance of that search warrant invalid.

This motion was accompanied by counsel’s affidavit reciting the same facts. That same day, Turner filed another motion to continue trial due to Roberts’s unavailability. The motion hearing was eventually scheduled for July 8, 2003, and trial was scheduled to begin on August 5.

¶ 10. Defense counsel failed to appear at the hearing on the motion to suppress. The trial court held that the motion was “overruled as abandoned; and the evidence sought to be suppressed shall be admitted at trial upon the showing of a proper predicate.” Trial was continued several more times due to Roberts’ unavailability.

¶ 11. On April 30, 2004, defense counsel filed another motion to suppress. This motion was based on the identical grounds asserted in the previously denied motion. That same week, new defense trial counsel, Glenn Folse, was retained. The April 30 motion was not brought to the court’s attention prior to the commencement of trial on May 4.

¶ 12. As stated, the State’s first witness, Holley, admitted during cross-examination that Roberts was not a known and reliable informant, contrary to what he asserted in the affidavit supporting the search warrant. After Holley’s testimony, Turner’s trial counsel made a motion to dismiss. The court overruled the motion to dismiss, and gave the following explanation:

The question as to whether or not the officers were legally on the premises is not before the Court. That is brought before the Court’s attention on a motion to suppress. There’s been no motion to suppress heard in this case, and been no motion to suppress brought to the Court’s attention. I see that there’s one filed on April the 30th. This case has been pending substantially before then. There’s no issue as to the legality of the officers and legality of the search warrant, period. The officers were acting under the authority of a warrant whose legality, the issuance of, has not been questioned previously and not been brought to the Court’s attention. Period.

¶ 13. Under the Uniform Rules, the trial court did not abuse its discretion in refusing to hear the motion which was filed on April 30. It was based on the identical grounds contained in the motion which was scheduled to be heard on July 8, 2003, but which was not heard because counsel failed to appear. There is no doubt that the failure to pursue a motion to decision is deemed an abandonment of the motion. URCCC 2.04. However, it is what transpired during the trial that gives us grave concern. As stated, the State’s key witness admitted that what he had said in the affidavit for the search warrant was not correct. After that testimony, the trial court was faced with a key question: whether it is within constitutional limits to accept as evidence the fruits of what was then known to possibly be an invalid search warrant, notwithstanding that the delay in discovering this fact was caused by counsel’s failure to pursue the motion to suppress.

¶ 14. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) gives us some guidance, but is not controlling. In Franks, the United States Supreme Court held:

Where the Defendant makes a substantial preliminary showing that a false statement knowingly and intentionally or with reckless disregard for the truth was included by the Affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the fourth amendment requires that a hearing be held at the Defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the Defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

¶ 15. Turner, through cross-examination of Holley, made a substantial preliminary showing that a false statement was knowingly made in the affidavit. If this statement was necessary to the finding of probable cause, then Franks requires that a hearing be held at Turner’s request. However, Franks does not address the precise question we face here, as Turner was initially afforded the opportunity for a hearing, but his counsel failed to appear. As we next discuss, Pipkins v. State, 592 So.2d 947 (Miss.1991) seems more applicable to our facts.

¶ 16. In Pipkins, an affidavit for a search warrant alleged that the officer’s information was from a reliable confidential informant. Id. at 947. Our supreme court held that the officer’s testimony at the suppression hearing supported the trial court’s original denial of the motion to suppress. Id. at 949. However, on cross-examination at trial, the officer admitted that he had just met the informant within a day of the search. Id. at 948. The officer was able to corroborate “nothing of a criminal nature” and what he did corroborate “could have been as innocent as corroborating that the defendant lived in the house searched.” Id. at 951. Because of the trial testimony, the court held there was no probable cause to support the warrant, and the contraband discovered during the illegal search should have been suppressed. Id. at 952.

¶ 17. In reaching its conclusion in Pip-kins, the Mississippi Supreme Court said this:

Charles Pipkins argues on appeal that the lower court was in error when it failed to rule, at the pre-trial motion to suppress, that the warrant issued for the search of his home was issued upon insufficient probable cause. Alternatively, Pipkins asserts that the issuing magistrate, Justice Court Judge Louis Fon-dren, was misled by the “Affidavit for Search Warrant” and statement of “Underlying Facts and Circumstances” presented by Deputy Ron Cooley in support of his application for search warrant. Finding merit in Pipkins’ alternative argument, we are compelled to reverse and remand for further proceedings.

Pipkins, 592 So.2d at 949.

¶ 18. In our view, Pipkins stands at least for the proposition that when the issuing magistrate is given false facts which are indispensable to the probable cause determination, probable cause cannot exist, and the fruits of the search must be suppressed, even if the search warrant was properly issued based on the false facts which were presented to the magistrate. When the true facts are revealed, the prior probable cause determination must yield to the new reality occasioned by the new and correct set of facts. Therefore, we find that the trial court abused its discretion in summarily dismissing Turner’s trial motion.

¶ 19. We reverse and remand this matter to the trial court to consider whether Officer Holley knowingly and intentionally gave false and misleading information to the issuing judge. The trial court shall determine whether the information obtained from Roberts should be stricken from the affidavit, and the remaining information, if any, should be used to determine if probable cause existed. If there was no probable cause to support the warrant, the evidence was illegally seized, and Turner is entitled to have it suppressed. Pipkins, 592 So.2d at 952. This result would require a new trial. If the court finds that there was probable cause to support the warrant, the trial court should enter an order with its findings of fact and conclusions of law. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

II.Was Turner denied his right to confrontation?

¶20. Turner also argues that he was denied his right to confront and cross-examine his accuser, Roberts, because she did not testify at trial. The State counters that this argument is waived. In the alternative, the State maintains that the right to confront and cross-examine is limited to in-court testimony.

¶ 21. The standard of review for constitutional issues is de novo. Baker v. State, 802 So.2d 77, 80 (Miss.2001). In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. U.S. Const, amend. VI; Miss. Const, art. 3, § 26. This right applies to in-court testimony as well as out-of-court statements. Crawford v. Washington, 541 U.S. 36, 50-51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The right to confront and cross-examine a witness is a fundamental right, which is not waived for failure to object. Hobgood v. State, 926 So.2d 847, 852(¶ 11) (Miss.2006). Prior testimonial statements are not admissible under the Sixth Amendment unless the witness is (1) unavailable at trial and (2) the defendant had a prior opportunity for cross-examination. Crawford, 541 U.S. at 68, 124 S.Ct. 1354. Roberts’ statements were never admitted into evidence, nor did she testify at trial; therefore, there is no confrontation problem. This issue has no merit.

III. Should the trial court have sua sponte granted a circumstantial evidence instruction?

¶ 22. Turner’s next allegation is that he was entitled to a circumstantial evidence instruction, because there was no direct evidence that he either manufactured or possessed methamphetamine. He acknowledges that he did not request it, but asserts that the trial court should have sua sponte given one. The State responds that the duty to request such an instruction is on Turner. We agree.

¶23. While a circumstantial evidence instruction may be appropriate, it remains incumbent upon the defendant to request such an instruction. Savage v. State, 764 So.2d 445, 448(¶ 9) (Miss.Ct.App. 2000). A trial court is not required to sua sponte grant such an instruction. Id. at 448 (¶¶ 9-10). This issue has no merit.

IV. Was Turner denied effective assistance of counsel?

¶ 24. Finally, Turner challenges the effectiveness of trial counsel citing five alleged deficiencies. The State maintains that this issue should be denied at this juncture without prejudice to Turner raising the issue in post-conviction relief proceedings. We decline to accept the State’s suggestion, as the matters which Turner suggests constitute ineffective assistance of counsel are amply developed in the record before us.

¶ 25. To prove ineffective assistance of counsel, Turner must demonstrate that his counsel’s performance was deficient, and this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Thus, to make out this type of claim, Turner must demonstrate both (1) that his attorney’s performance “fell below an objective standard of reasonableness,” and (2) that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 688, 104 S.Ct. 2052. The prejudice prong of the test, unlike the determination of whether counsel’s performance fell below an objective standard of reasonableness, may be made with the benefit of hindsight. See Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). The burden of proof rests with Turner. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

A. Trial counsel failed to ask for a mistrial or limiting instruction after a potential juror made statements about facts of the case heard on a news report.

¶ 26. Turner argues that trial counsel should have moved for a mistrial due to tainting of the jury pool by a potential juror’s comments. During voir dire, the court asked if anybody may have heard of this case on the news. Venire member Queen Easter Pope spoke up:

I can’t remember. Everything is foggy. But look like I read about it, maybe saw it on TV if it was and everything.
BY THE COURT: Is there anything—
BY THE JUROR: He looks familiar, but I just can’t remember well enough. I had to tell you because it may come to me later on.
BY THE COURT: Okay, but you don’t recall anything right now or even if you did read or see anything about it?
BY THE JUROR: You know, some of the things that they was — it was something — can you tell some of the stuff? Maybe I can—
BY THE COURT: No, ma’am. My question is trying to find out whether you recall anything about it or not, not whether I recall anything about it.
BY THE JUROR: I was trying — I thought if you was thinking about something and seeing that I remember about a story like that. But I can’t remember just for sure whether I did because at first I thought it was another one, and then it wasn’t that. So I’m not sure. I just had to tell you because I, you know, don’t want to fool around here and mess up.
BY THE COURT: My next question is whatever it was you might have read, if anything, has it caused you to already make your mind up about whether you think that the defendant Mr. Turner in this case is guilty or not guilty in this case? Have you formed any ideas one way or another because of what you read?
BY THE JUROR: Well, look like I can remember something on television. It might not have been it. And look like, you know, that it was no doubt that, you know, that happened.
BY THE COURT: Then what you’re telling me is that what you might have seen could have caused you to form an opinion about it if it was about this case?
BY THE JUROR: It was just as clear, you know, whether it was actually happening that the news people had on—
BY THE COURT: Thank you.
BY THE JUROR: —as we standing here.

¶27. The State challenged Pope for cause. Trial counsel objected, “She’s a little vague and unclear.... I couldn’t get that she could not be fair and impartial.” The trial court responded, “[S]he said that she may have formed an opinion because she may have seen it and that she couldn’t be fair and impartial because of what she may have seen.” The trial court granted the cause strike.

¶ 28. We find that trial counsel’s failure to move for a mistrial was not deficient under Strickland. The juror was not sure if she had heard anything about this case. She did not reveal anything that the news may have said about Turner or the case she may have seen. All she said was that she believed whatever she saw on the news had happened. It was not unreasonable for trial counsel to not ask for a mistrial, since the jury was not exposed to any extrajudicial influence from these statements.

B. Trial counsel only asked for five minutes to deliberate over his juror challenges.

¶ 29. Turner next faults trial counsel for asking the court for five minutes to consider his peremptory challenges. He says that this was not nearly enough time, and that trial counsel, being from outside of Starkville, should have had a local attorney to help him with voir dire. Even were we to assume that this was deficient conduct, there was no prejudice under the second prong of Strickland. But for these assumed errors, there is not a reasonable probability that the result would have been different. The trial court gave counsel more time than he requested. There is no evidence in the record that trial counsel did not take the time that was given him. He used all six challenges after the State’s first tender, and Turner does not suggest that trial counsel failed to strike someone that he should have.

C. Trial counsel failed to ask for a circumstantial evidence instruction.

¶ 30. The third ineffective assistance claim is that trial counsel failed to ask for a circumstantial evidence instruction. During opening statements, cross-examination, and closing argument, trial counsel asserted that there was no direct evidence to convict Turner. No witness saw him make methamphetamine, and there is no evidence that he ever physically possessed methamphetamine.

¶31. In Ivy v. State, 589 So.2d 1263, 1266 (Miss.1991), the supreme court held that the defendant was not denied effective assistance of counsel when counsel failed to ask for a circumstantial evidence instruction. Ivy was tried for possession of narcotics on a theory of constructive possession. Id. at 1265-66. Police testimony that the drugs were within Ivy’s construe-five possession was deemed direct evidence, and no circumstantial evidence instruction was required. Id. at 1266.

¶ 32. Likewise, Turner was convicted of possession of methamphetamine on a theory of constructive possession. Agent Holley gave testimony that at the time Turner was found, Turner was alone, within three feet of .02 grams of methamphetamine spilled from a vial onto a coffee table. He was found with a pipe and burnt foil in his actual possession. He was the owner of the premises in question. This was direct evidence of constructive possession, which would have defeated any request for a circumstantial evidence instruction. Trial counsel was not ineffective for not requesting such an instruction on the possession count.

¶ 33. We now turn to the count for manufacturing methamphetamine. Although there was direct evidence that someone was manufacturing methamphetamine, there was no direct evidence that Turner was manufacturing methamphetamine. Direct evidence that a crime was committed without direct evidence that the defendant committed the crime, is not enough to defeat a circumstantial evidence instruction. Price v. State, 749 So.2d 1188, 1194(¶ 16) (Miss.Ct.App.1999). An eyewitness’ account is direct evidence. Id. A circumstantial evidence instruction must be given when the prosecution is without a confession and without eyewitnesses to the gravamen of the offense charged. Id. at 1195-96(¶ 22). Failure to request a circumstantial evidence instruction, when the evidence against one’s client is wholly circumstantial falls below the standard of reasonable professional assistance. There can be no doubt that but for trial counsel’s failure to request a circumstantial evidence instruction Turner would have been granted one.

¶ 34. However, given the overwhelming circumstantial evidence in this case, we cannot say that but for this failure there is a reasonable probability that the result of the trial would have been different. The testimony was that methamphetamine was being manufactured at the time Turner was found on the property and within several feet of the manufacturing process. No person other than the Turner’s disabled child, who was in bed in the house, was on the property at the time. Specifically, 100 to 125 pseudoephedrine pills were soaking in a tank of anhydrous ammonia. Every ingredient and tool needed to make the drug was found in the shop, except for a lithium battery which was found in Turner’s pocket. This issue has no merit.

D. Trial counsel failed to call loitness Kimberly Ray.

¶ 35. Turner faults his trial counsel for not calling Kimberly Ray as a trial witness. Turner claims that Ray would have testified that the information in the affidavit underlying the search warrant was not true. Specifically, “Kimberly Ray could have testified about the whereabouts of her husband [Chris Ray] on the night of June 28, 2001.... The defendant as a matter of strategy wanted to call Mrs. Ray to cast doubt upon the credibility of Roberts whose statements to Agent Dave Holley provided the basis for the search warrant. Chris was apparently the person accused in the warrant of manufacturing methamphetamine at Turner’s shop. Essentially, Kimberly would have testified that her husband was not at Turner’s property at the time Roberts claimed that he was. While Kimberly’s testimony may have been helpful at a suppression hearing, trial counsel could have well believed it would be counterproductive at trial. If pressed by the State, Kimberly may have blamed Turner, in order to protect her husband. Furthermore, counsel’s failure to call Kimberly did not cause any prejudice to Turner. Trial counsel made the point to the jury through other testimony, without placing a witness on the stand whose interests were not wholly aligned with Turner’s.

E. Trial counsel failed to request a continuance due to Roberts’ unavailability as a tvitness.

¶ 36. The final assignment of ineffective counsel is trial counsel’s failure to move for a continuance. Turner says he was entitled to a continuance because Roberts was a material witness who remained unavailable for trial.

¶ 37. Trial counsel certainly could have requested a continuance and, as the history of the case shows, may have been granted one. The history of the case shows, too, that the continuance may well have been in vain, since Roberts had dodged subpoena service for approximately two years. Turner does not allege what Roberts would have testified to, other than, “The defendant believes that making this witness be present and subjected [sic] to cross-examination would have exposed the nature of her deceitful statement, thereby, proving his innocence to the jury.” Apparently Turner believes Roberts should have been called as an adverse witness, where her accusations underlying the search warrant would be proved false. As noted earlier, her statements were kept out via hearsay objections. There was thus no need to impeach her.

¶ 38. Trial counsel made the decision to go ahead with trial and have Roberts’ statements excluded altogether, rather than postpone trial and have Roberts give damning testimony simply to impeach her. Needless to say, the jury would still have been free to believe Roberts, despite trial counsel’s best efforts to impeach her. Trial counsel’s conduct was certainly reasonable strategy in this regard, and thus not deficient under Strickland. Additionally, we find no prejudice. At worst, trial counsel’s decision had the same effect on the outcome of Turner’s trial, i.e., the jury did not consider Roberts’ accusation. This issue has no merit.

¶ 39. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIBBEHA COUNTY.

LEE, P.J., CHANDLER, BARNES AND ISHEE, CONCUR. KING, C.J. AND CARLTON, J., NOT PARTICIPATING. GRIFFIS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY MYERS, P.J. AND ROBERTS, J.

GRIFFIS, J.,

Concurring in Part and Dissenting in Part.

¶ 40. I respectfully dissent from Part I of the majority’s opinion. I concur in the remainder of the opinion insofar as is it consistent with my reasoning that follows.

¶ 41. The majority finds that the trial court abused its discretion in failing to entertain the ore tenus motion to suppress raised during trial. I am of the opinion that the trial court was within its discretion. The trial court handled this matter in accordance with Rules 2.04 and 8.02 of the Uniform Rules of Circuit and County Court.

¶ 42. It is important to note that Turner’s counsel (who is also counsel on appeal) failed to appear at both of the scheduled hearings on the motion to suppress. Counsel has given no reasons for this failure to appear. There is nothing to indicate that Turner’s counsel could not have held a hearing on the motion to suppress and obtained the same evidence from an examination of Holley. There is no evidence that Holley was not available for the scheduled hearing. After Holley’s testimony at trial, Turner’s counsel argued the motion to suppress. The court overruled the motion to dismiss and the motion to suppress as not having been brought to the court’s attention before trial, filed outside of scheduling order, and previously abandoned.

¶ 43. I concede that Turner appears to have satisfied the Franks test, which constitutionally entitled him to a hearing on his motion to suppress. Indeed, Franks does not give a deadline for this preliminary showing requisite to obtain a hearing. The critical fact which poses a problem for Turner is that he did have a pre-trial hearing on a motion to suppress on the exact same grounds as shown at trial. He nevertheless waived this hearing through positive abandonment when his attorney did not appear to argue the motion or present evidence. No explanation for this failure appears in the record. This distinguishes the case from Pipkins. In Pip-kins, the parties had a hearing at which the police officer testified inconsistently from his later testimony at trial. So while the trial court did not err in overruling the pretrial motion to suppress, the supreme court found that the officer’s trial testimony established lack of probable cause. Here, Turner had an opportunity for a hearing but neither he nor his attorney appeared. Further, there is no reason to believe that Turner was surprised by Holley’s testimony. Finally, Turner could have examined Holley at the July 8 hearing. We assume that Holley would have given the same testimony. Even if Holley testified differently, Turner would be in the exact same position as Pipkins, and the Fourth Amendment claim would be preserved.

¶ 44. I would affirm the trial court and conclude that the trial court did not abuse its discretion in refusing to hear the ore tenus motion to suppress.

MYERS, P.J., AND ROBERTS, J., JOIN THIS OPINION.

      . Turner went through three different attorneys. The first was appointed counsel Stephanie Mallette, who served until April 18, 2002, when Turner retained Mickey Mallette. Mr. Mallette served as counsel until one week before trial, when he was replaced with Glenn Folse, the attorney who served as trial counsel. Nevertheless, Mr. Mallette appeared at trial as counsel. Mr. Mallette is now appellate counsel. The ineffective claims are brought only against trial counsel.


author: CHANDLER, J„

text:
    James Ray EDGE, Jr. a/k/a Buddy, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KP-00883-COA.
    Court of Appeals of Mississippi.
    Jan. 2, 2007.

      James Ray Edge, Jr., Appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, C.J., CHANDLER and ROBERTS, JJ.
   CHANDLER, J„

for the Court.

¶ 1. James Ray “Buddy” Edge, Jr. was convicted in the Circuit Court of Itawamba County on one count of burglary of an occupied dwelling pursuant to Section 97-17-23 of the Mississippi Code Annotated (Rev.2004). Edge entered an open plea of guilt, and the circuit court judge thereby imposed a sentence of twenty years in the Mississippi Department of Corrections, with ten years to be suspended and five years post-release probation. Under the statute, the maximum allowed sentence is twenty-five years, with the minimum being three years. Aggrieved, Edge appeals on the issue of:

I. WHETHER THE SENTENCE IS DISPROPORTIONATE IN RELATION TO THE CRIME COMMITTED

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Edge and his wife, Alison, were married in 2001. After four years of marriage, the couple separated. They had one biological child together, Dalton. Two of Alison’s children from a previous relationship also resided with the couple.

¶ 4. On August 4, 2003, Edge, on his way home from work, spotted Alison’s car at the home of alleged “known” drug dealers, Jeff and Chrissy Dickerson. Edge had warned Alison the day before to stay away from the Dickersons. Edge suspected his children to be with Alison, so he stopped the car and entered the home to verify his suspicions. Inside, he found Alison accompanied by their three children and Jeff Dickerson. Edge demanded that Alison leave and attempted to extricate the children from the home. Alison fled, taking the children with her. Edge and Dickerson then became involved in a fist fight.

¶ 5. Alison took the children home and Edge soon followed. Alison refused to allow Edge entry into her home. Edge then kicked in the door, shattering the door and its frame. Edge entered the home, threw a phone against the wall and dismantled furniture. Edge found Alison in the kitchen holding his son Dalton, and he attempted to grab the boy from Alison’s arms. Edge also threatened Alison with a hammer and subsequently swung the hammer above her head, putting a hole through the wall. The domestic dispute ended when one of Alison’s children repeatedly hit Edge with a broom to make Edge leave.

¶ 6. The police were summoned and Edge was arrested on the charges of domestic violence, driving while his license was suspended, possession of a switched tag and possession of beer. While in the custody of the Itawamba County Sheriffs Department, the charge of domestic violence was enhanced to burglary in violation of Mississippi Code Annotated Section 97-17-23 (Rev.2006).

¶ 7. Edge entered an open plea of guilt to the charge of burglary, thereby waiving his right to a jury trial. The court performed an initial questioning of Edge to ensure the voluntariness of his plea and his mental capacity. Satisfied that Edge was competent, the trial court accepted the guilty plea. .

¶8. At a post-plea sentencing hearing, the trial court further questioned Edge as to his mental state and mental health history. Edge stated that he had been under psychiatric care for several years and was currently on anti-depressants. Edge claimed that he had taken his required medication the day of the altercation with Alison, but also admitted that he had a chronic habit of marijuana usage.

¶ 9. Alison testified at the hearing. She stated that Edge had previously warned her about taking the children to the Dickerson home, because Edge was concerned for his children’s safety. Despite Edge’s protests, Alison took the children to the Dickerson’s home anyway. Alison asked the court for leniency for Edge because by the time of the hearing, the couple had reconciled. Due to her own drug-related problems, Alison no longer had physical custody of the children.

¶ 10. The court conducted a pre-sen-tence investigation. After hearing from several of Edge’s witnesses concerning extenuating and mitigating factors to the crime committed, the court ordered Edge to serve twenty years in the Penitentiary, with ten years suspended and five years to serve as post-release supervision. Edge was also ordered to participate in a long-term drug and alcohol treatment program, an anger management program, and to pay a fine of $1,000.

¶ 11. On June 24, 2004, Edge filed a motion to reconsider sentence through his counsel, which was denied. Aggrieved, Edge now appeals pro se the decisions on the final sentencing order and on the motion to reconsider sentence.

LAW AND ANALYSIS

I. WHETHER THE SENTENCE IS DISPROPORTIONATE IN RELATION TO THE CRIME COMMITTED

¶ 12. We first consider the State’s contention that this appeal should be dismissed as an attempt to appeal a conviction based on a guilty plea. The State contends that Edge may not directly appeal a conviction imposed pursuant to an open plea of guilt. Miss.Code Ann. § 99-35-101 (Rev.2004). While the State is correct that such appeals are not allowed, this Court does have jurisdiction to consider an appeal challenging the length of a sentence. Trotter v. State, 554 So.2d 313, 315 (Miss.1989). An appeal from a sentence imposed pursuant to a guilty plea is not equivalent to an appeal from the guilty plea itself. Bums v. State, 344 So.2d 1189 (Miss.1977). Therefore, the State’s motion to dismiss for lack of jurisdiction is overruled.

¶ 13. The State further asserts that Edge’s proper remedy is to seek post-conviction relief pursuant to Section 99-39-5 of the Mississippi Code Annotated (Supp.2006). As our statutory law directs, “Direct appeal shall be the principal means of reviewing all criminal convictions and sentences.... ” Miss.Code Ann. § 99-39-3(2) (Supp.2006). Post-conviction relief is a procedure limited to review of matters which “in practical reality, could not or should not have been raised at trial or on direct appeal.” Foster v. State, 687 So.2d 1124, 1129 (Miss.1997) (citing Smith v. State, 477 So.2d 191 (Miss.1985)). The purpose of such proceedings is to present to the trial court facts “not known at the time of judgment.” Id. Thus, we find that Edge’s direct appeal challenging the length of his sentence is appropriate.

¶ 14. We next proceed to the merits of Edge’s appeal. Edge argues that the sentence imposed is disproportionate to the gravity of the crime. As a first-time offender, Edge maintains he was entitled to “special consideration” in sentencing and that the sentence imposed is unduly harsh when considering mitigating factors of the crime and parallel sentencing.

¶ 15. As a general rule, sentencing is within the trial court’s discretion and will not be disturbed on appeal if the sentence is within the term provided by statute. Davis v. State, 724 So.2d 342, 344 (¶ 7) (Miss.1998). However, a sentence that is “grossly disproportionate” to the crime committed is subject to attack on Eighth Amendment grounds. Id.

¶ 16. Although the sentence imposed does not meet the statutory maximum, Edge assails that the sentence is excessive given the nature and details of the crime. In light of Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), Edge contends that his sentence is disproportionate to his crime because he broke into Alison’s home solely to protect his child, Dalton, from harm.

¶ 17. The United States Supreme Court outlined a three-part test in which to determine the proportionality of a sentence in regards to whether an Eighth Amendment prohibition against cruel and unusual punishment occurred. Id. The criteria was furthered modified under Harmelin v. Michigan, 501 U.S. 957, 965, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), to hold that the Eighth Amendment does not guarantee proportionality and that only “grossly disproportional” punishments will be reviewed under the Solem test.

¶ 18. With a showing of gross dispro-portionality, Solem requires these factors to be considered: (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions. Solem, 463 U.S. at 292, 103 S.Ct. 3001. Our supreme court has further held that “when a threshold comparison of the crime committed to the sentence imposed leads to an inference of ‘gross disproportionality’ ” the proportionality analysis of Solem is used. White v. State, 742 So.2d 1126, 1135 (¶ 35) (Miss.1999) (citing Hoops v. State, 681 So.2d 521, 538 (Miss.1996)).

¶ 19. Although Edge’s sentence may seem severe for a first-time offender, the Solem proportionality analysis is not implicated in this case because the sentence is not so “grossly disproportionate” as to violate the Eighth Amendment of the United States Constitution.

¶ 20. The record shows that Edge understood his guilty plea and that he was aware of the maximum and minimum lengths of the sentence. Before the sentencing hearing, the State offered Edge a sentence recommendation of fifteen years, which he rejected. The State withdrew the recommendation. The trial court informed Edge that had the State formally recommended a sentence length, the court would likely have accepted it. The court also inquired as to Edge’s mental state. Edge testified that although he had a history of mental illness, he regularly took his medication and had taken the medication on the day in question.

¶ 21. A law enforcement officer took the stand to testify that Edge was known among narcotics agents as being involved with methamphetamine. The officer also stated that Edge had been involved in other domestic disturbances prior to the one in question. Edge had also served thirty days in jail for stalking Alison, and admitted to a chronic habit of daily marijuana usage.

¶ 22. The trial court noted that given Edge’s criminal and mental history, “worse things could happen.” The twenty year sentence was within the statutory guidelines. Due to the seriousness of Edge’s crime of burglary, we cannot say that the sentence is grossly disproportionate to the crime. The trial judge is in the best position to hear and evaluate the relevant evidence, and we can find nothing in the record to indicate that an abuse of discretion occurred. Therefore, we affirm the sentence.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF ITAWAMBA COUNTY OF CONVICTION OF BURGLARY OF AN OCCUPIED DWELLING AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TEN YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION, PAY $1,035 RESTITUTION AND FINE OF $1,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.