author: WALLER, Presiding Justice,

text:
    MISSISSIPPI DEPARTMENT OF MENTAL HEALTH v. Julia Renee HALL.
    No. 2004-CA-01522-SCT.
    Supreme Court of Mississippi.
    Aug. 24, 2006.

      Eugene M. Harlow, Laurel, attorney for appellant.

      George L. Follett, Meridian, attorney for appellee.
    Before SMITH, C.J., WALLER, P.J., and DICKINSON, J.
   WALLER, Presiding Justice,

for the Court.

¶ 1. Julia Renee Hall filed a complaint against the East Mississippi State Hospital, alleging that, while she was a patient at East Mississippi, she sustained serious injuries after falling from a third-story window. After conducting a bench trial pursuant to the Mississippi Tort Claims Act, Miss.Code Ann. §§ 11-46-1 through - 23 (Rev.2002), the Lauderdale County Circuit Court entered a judgment against East Mississippi in the amount of $250,000. We affirm the circuit court’s judgment in all respects.

FACTS

¶ 2. Julia Renee Hall, who was 25 years old at the time of the accident, has been institutionalized at different mental health facilities since she was 13 years old. Her latest admitting diagnosis was schizophrenia, disorganized type, borderline; and borderline personality disorder. Her discharge diagnosis from her last stay at East Mississippi was Axis One: schizoaffective disorder, bipolar type; alcohol dependency, in remission; amphetamine abuse, in remission; cannabis abuse, in remission; Axis Two: borderline personality disorder. She has been civilly committed to East Mississippi on four different occasions.

¶ 3. On June 4, 2001, Hall became convinced that she would be transferred to the “back building,” a facility for chronically ill patients. Hall and other patients believed that the back building was an area where violence and abuse run rampant among the patients and where there was little to no hope for recovery. Angela Eason, a staff member, filed the following report about what occurred the afternoon of June 4:

Pam Johnson and I took the patients out for a smoke break at 5:00 o’clock, 1700....
When these patients finished smoking, we returned to the unit on the elevator where the patients started talking about the back building and asking why would a patient get sent to those buildings. I explained it’s usually they can’t be stabilized on medications or patients that just keep on cycling through the system time and time again.
Julia Hall then laughed and said, You mean like me? I then said, I haven’t heard your name come up about going to the back building, but you do keep moving up and down between second (a less restrictive ward) and third and you need to get it together. You are too young to be institutionalized all your life.

¶ 4. When they returned to the third-floor ward, Hall was “hysterical” and “crying” because she thought that the staff was going to transfer her to the back building. Patients Amanda Neal and Regina O’Bryant told Hall that they had a plan in place to escape and coaxed Hall to join them. Neal and O’Bryant’s plan was to escape through a third-story window in the all-purpose conference room which adjoined the nurses’ station. The door to the room was not locked, and there was no security screen on the window. The window was inoperable, but the women somehow removed a window pane. The group took sheets from a linen closet on the floor which was aiso unlocked. They entered and exited the conference room several times before Hall actually went out the window and began climbing down a “rope” created by tying the sheets together. Hall lost her footing and fell to the ground. She suffered multiple fractures of the right leg, necessitating eight surgeries so far. Her right foot and heel have become infected several times due to soft tissue damage. She has undergone bone and skin grafts. At the time of the hearing, her right foot and lower leg were swollen and appeared to be deformed, and she noticeably limped. The circuit judge found that Hall would “never be able to hold gainful employment of any consequence for the rest of her life,” and that “she has a future of probable repeated and long-term mental health treatment in institutions.”

¶ 5. The circuit judge found that $1,000,000 for actual and compensatory damages was appropriate. He allocated fault as follows: East Mississippi, 50%; Hall, 25%; Neal, 12-1/2%; and O’Bryant, 12-1/2%. Then, applying the cap on compensatory damages as set out in Miss.Code Ann. § 11-46-15 (Rev.2002), the circuit judge entered a judgment against East Mississippi in the amount of $250,000. East Mississippi appealed.

DISCUSSION

¶ 6. “A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor, and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence.” City of Jackson v. Internal Engine Parts Group, Inc., 903 So.2d 60, 63 (Miss.2005) (citing City of Jackson v. Perry, 764 So.2d 373, 376 (Miss.2000)). Questions of law are reviewed de novo. Internal Engine, 903 So.2d at 63 (citing Maldonado v. Kelly, 768 So.2d 906, 908 (Miss.2000)).

I. WHETHER EAST MISSISSIPPI HAD A DUTY TO PREVENT HALL FROM HARMING HERSELF BY ATTEMPTING TO ESCAPE THROUGH THE THIRD STORY WINDOW.

¶ 7. To prevail on a negligence claim, a plaintiff must establish by a preponderance of the evidence each of the elements of negligence: duty, breach, causation and injury. Miss. Dep’t of Transp. v. Cargile, 847 So.2d 258, 262 (Miss.2003). The cause of Hall’s injuries was her fall from the third-story window, and the parties stipulate to Hall’s injuries. Therefore, at issue is whether East Mississippi had a duty to prevent Hall from harming herself by attempting to escape through the third-story window and whether that duty was breached.

Standard of Care for Patients with Mental Impairments

¶ 8. A state facility providing mental health care is statutorily mandated to provide “proper care and treatment, best adapted, according to contemporary professional standards.” Miss.Code Ann. § 41-21-102 (Rev.2005). Neither the Legislature nor Mississippi courts have defined “contemporary professional standards,” but, in dicta, this Court, speaking through the learned Presiding Justice Banks, commented, “[p]ersons deemed incapable of making rational judgments, such that they must be committed, are not to be protected by a lesser standard than reasonable care under the circumstances.” Carrington v. Methodist Med. Ctr., Inc., 740 So.2d 827, 829-30 (Miss.1999). In Texas, “[a] hospital is under a duty to exercise reasonable care to safeguard the patient from any known or reasonably ap-prehensible danger from herself and to exercise such reasonable care for her safety as her mental and physical condition, if known, may require.” Mounts v. St. David’s Pavilion, 957 S.W.2d 661, 663 (Tex.Ct.App.1997).

¶ 9. The Texas standard of care for the duty a hospital owes to a patient is similar to what we enunciated in Carrington. It is flexible in that the duty owed to patients may increase depending on the physical or mental condition of the patient. It can therefore be applied to different fact situations. We therefore adopt the Texas standard of care.

Duties Oiued to Hall

¶ 10. Wood Hiatt, M.D., a board-certified psychiatrist, testified that East Mississippi had the duty to protect patients from the consequences of their own dangerous behavior, to lock doors to rooms where a patient could be present without supervision, and to put safety screens on windows in rooms where a patient could be present without supervision. Dr. Hiatt also testified that East Mississippi staff was required to know the location of each patient and the actions in which each patient was engaged. Hall had attempted suicide in March of 2001, and she should have been under “special observation.” The May 15, 2001, progress notes concerning Hall state that Hall was a “danger to herself and others.” Hall became argumentative with a staff member on May 31 and was placed on the third-floor ward, which was a locked unit.

¶ 11. Dr. Hiatt further testified that East Mississippi breached the above-referenced duties by allowing third-floor ward patients to freely enter and leave an unlocked room without supervision, to have access to the linen closet, and to be without supervision long enough to take sheets out of the linen closet, make a rope out of the sheets, pry the window open in the conference room, take off their pajamas and put on regular clothes, attach the rope to a table in the conference room, and climb out the window. What astounds the Court is that the three women were coming in and out of the supposedly off-limits conference room which was right next to the nurse’s station. Also, each patient was to be checked every thirty minutes. Whoever staffed the nurse’s station or monitored the patients during these events should have become suspicious about the women’s activities. Someone should have noticed that the three women had pajamas on and then they changed into regular clothes. Hall testified that most of the nurse’s aides were “watching television.”

¶ 12. We find, as the circuit court did, based on Dr. Hiatt’s testimony, East Mississippi breached the duties of care owed to Hall.

Foreseeability

¶ 13. East Mississippi contends that it committed no negligent acts because Hall’s injury was unforeseeable. It states that the door to the conference room was “inadvertently” unlocked and that the window in the conference room was “non-operable” and “non-opening.” Therefore, East Mississippi argues, the only foreseeable action on the part of a patient would have been to have been in the room without supervision and not for that patient to pry the glass panes out of the window in an attempt to escape. Several members of the East Mississippi nursing staff testified that they never considered the conference room to be an escape risk and that they never thought a patient would attempt to escape out a third-story window. Furthermore, East Mississippi claims it had no reason to consider Hall to be an escape risk or to require closer supervision. Finally, East Mississippi cites Mississippi precedent which holds that, to be held negligent, an injury must be “reasonably foreseeable.” Rein v. Benchmark Constr. Co., 865 So.2d 1134, 1143 (Miss.2004).

1114. In response, Hall points out that, under Gulledge v. Shaw, 880 So.2d 288, 293 (Miss.2004), the fact that an injury rarely occurs, or has never happened, is insufficient to protect the actor from a finding of negligence.

¶ 15. The evidence adduced at trial supports the circuit judge’s finding that Hall’s escape attempt and injuries were foreseeable. Patricia Dudley, M.D., an East Mississippi staff psychiatrist, testified that it is common knowledge that patients will try to climb out windows; a staff nurse testified that any rooms where patients could be present without supervision should have security screens on the windows (all of the patients’ rooms had security screens); and another staff psychiatrist testified that the staff was aware that patients would try to leave the third floor ward. Finally, Dr. Hiatt testified that mental hospital staff should know that psychiatric patients will attempt to escape.

¶ 16. The circuit court found that East Mississippi had a duty to keep unsupervised rooms locked, to place safety screens on windows in unsupervised areas, and to monitor patients’ activities, that East Mississippi breached these duties on the night in question, and that the injuries suffered by Hall were reasonably foreseeable. We find that the circuit court’s findings were supported by substantial and credible evidence.

II. WHETHER EAST MISSISSIPPI IS IMMUNE PROM LIABILITY UNDER THE MISSISSIPPI TORT CLAIMS ACT.

¶ 17. The parties do not contest that East Mississippi, as a state hospital, is a “governmental entity” for purposes of the Mississippi Tort Claims Act. Miss.Code Ann. §§ 11-46-1 through -23 (Rev.2002). The MTCA cloaks governmental entities and state employees with immunity “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused.” Miss.Code Ann. § 11 — 46—9(l)(d) (Rev. 2002). A duty is ministerial and not discretionary if it is imposed by law and its performance is not dependent on the employee’s judgment. Cargile, 847 So.2d at 267 (citing Mohundro v. Alcorn County, 675 So.2d 848, 853 (Miss.1996)).

¶ 18. Hall’s expert witness testified at trial that East Mississippi’s (1) failure to check the third-floor conference room door to see if it was locked; (2) failure to install a security screen on the third floor window; and (3) failure to monitor adequately its patients housed on a locked ward constituted violations of the applicable standard of care. East Mississippi argues that these failures to act were discretionary functions and dependent upon its employees’ judgments, and therefore it is immune from liability under the MTCA. It states that there was no written policy, rule or standard which required the conference room to be locked when not in use, which required security screens to be placed on non-patient rooms, or which required the staff to monitor continuously the patients. Also, it contends that the monitoring and supervision on the third-floor unit required the use of judgment and discretion depending. upon the individual patients, the staffs knowledge of the patients, and the activities of the patients and the staff at any given time. East Mississippi cites the definition of “ministerial function” from Black’s Law Dictionary 996 (6th ed.1990): “a function as to which there is no occasion to use judgment or discretion.”

¶ 19. Hall responds that Mississippi case law has set out a two-part analysis in determining whether a governmental function is discretionary or ministerial: (1) whether the activity involves an element of choice or judgment (whether the act is discretionary in nature); and, if so, (2) whether the choice or judgment involves social, economic, or political policy alternatives (whether the act constituted a discretionary function). Doe v. State ex rel. Miss. Dep’t of Corn., 859 So.2d 350, 356 (Miss.2003) (citing Bridges v. Pearl River Valley Water Supply Dist., 793 So.2d 584, 588 (Miss.2001)). Doe also held that duties are ministerial if they are imposed by law, and performing them is not dependent on the employee’s judgment. 859 So.2d at 356. Hall points out that the duties involved in this case (supervision of patients, locking doors to rooms where patients may be unsupervised, and installing security screens in rooms where patients may be unsupervised) are not matters of social, economic or political policy alternatives. Therefore, Hall concludes, these duties are not discretionary.

¶20. East Mississippi is required by statute to provide patients with mental health care and treatment in accord with contemporary professional standards. Miss.Code Ann. § 41-21-102(6) (Rev.2005). Adhering to the mandates of this statute is not discretionary, and, therefore, it is ministerial. Dr. Hiatt testified that contemporary professional standards dictate that: (1) the doors to rooms where a patient might be present and unsupervised should be locked; (2) security screens should be placed on windows in rooms where a patient might be present and unsupervised; and (3) patients should be monitored in a way so that any out-of-the-ordinary actions on the part of the patients might be detected.

¶ 21. We find that the duties East Mississippi owed to its patients were not discretionary and that the discretionary function immunity provisions of the Mississippi Tort Claims Act do not shield East Mississippi from liability in this matter.

III. WHETHER THE ACTIONS OF HALL AND THE OTHER TWO WOMEN RELIEVED EAST MISSISSIPPI OF LIABILITY AND WHETHER THE CIRCUIT COURT’S ALLOCATION OF 50% FAULT TO EAST MISSISSIPPI WAS TOO HIGH.

¶22. The circuit judge allocated 25% of the fault to Hall, 25% to Neal and O’Bryant (12-1/2% each), and 50% to East Mississippi. East Mississippi argues that all fault should be laid at Hall’s feet because: (1) her actions were intentional; (2) she knew she should not have been in the unsupervised conference room; and (3) she intentionally attempted to avoid personnel in the escape attempt. East Mississippi concludes, without citing any case law, that it “should not be held liable for [Hall’s] poor judgment.” Alternatively, East Mississippi argues that the allocation of 50% fault to East Mississippi was too high.

¶ 23. One of the reasons Hall was committed to East Mississippi was her poor judgment. Her medical records show that she was highly impulsive and reckless. She had attempted suicide on prior occasions. Her condition would deteriorate from time to time so that it was necessary to move her to the third-floor locked ward for her own safety. The civil commitment order stated that Hall was a danger to herself and to others and that Hall’s behavior was “sometimes irrational and often described as ‘childlike.’ ” It was East Mississippi’s duty to care and to provide a safe environment for a person who, because of her mental impairments, could not take very good care of herself.

¶ 24. That the three women entered and departed from the third-floor conference room adjacent to the nurses’ station several times within a short time, changed from pajamas to street clothes, broke a window pane, and transported a rope made out of sheets to the conference room without detection shocks the Court’s conscience. A review of Hall’s testimony at the bench trial clearly shows the severity of Hall’s mental impairments. An allocation of 50% fault to East Mississippi is a very conservative estimate of the extent of its negligence in caring for Hall. We find the circuit court’s allocation of fault is supported by substantial evidence.

IV. OTHER POSSIBLE BARS TO LIABILITY.

¶ 25. East Mississippi argues that Miss.Code Ann. § ll-46-9(l)(m) (Rev. 2002) provides it with immunity. The statute provides as follows:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(m) Of any claimant who at the time the claim arises is an inmate of any detention center, jail, workhouse, penal farm, penitentiary or other such institution, regardless of whether such claimant is or is not an inmate of any detention center, jail, workhouse, penal farm, penitentiary or other such institution when the claim is filed; ...

East Mississippi contends that “other such institution” may be interpreted as a state mental hospital. However, subsection (m) clearly pertains to penal institutions.

¶ 26. East Mississippi also claims that Hall was not entitled to recover damages because she was injured during the performance of an illegal act pursuant to Miss.Code Ann. §§ 97-9-25 (Rev.2000) and 11 — 46—9(1)(f) (Rev.2002). A mental patient’s attempted escape is not a criminal act. This claim is without merit.

V. WHETHER THE CIRCUIT COURT ERRED IN DENYING IN PART EAST MISSISSIPPI’S MOTION IN LIMINE.

¶ 27. Gwendolyn Hardaway was a patient advocate at East Mississippi at the time of the accident. She conducted an investigation, interviewed many witnesses and wrote a report. East Mississippi filed a motion in limine to prevent Hardaway from testifying at the trial and to bar the introduction of her report into evidence. The circuit court granted that part of the motion in limine which pertained to the report, finding it was confidential and privileged under Miss.Code Ann. § 41-63-21 (Rev.2005). However, the circuit court held that a patient advocate was not subject to any privilege and that Hardaway could testify. East Mississippi contends that Hardaway was, in essence, a quality assurance officer and was thus subject to Miss.Code Ann. § 41-63-23 (Rev.2005), which provides in pertinent part as follows:

No person involved in preparation, evaluation or review of accreditation or quality assurance materials shall be permitted or required to testify in any civil action as to any evidence or other matters produced or presented during the course of preparation, evaluation or review of such materials or as to any finding, recommendation, evaluation, opinion, or other action of such accreditation or quality assurance or other person involved therein.

¶28. The circuit court found that a patient advocate’s primary duties were to protect vulnerable adults and to investigate allegations of abuse, neglect or exploitation. Hardaway also testified that patients had specific rights guaranteed by statute and by East Mississippi, and had civil rights. Her purpose was to respond to reports and determine whether a patient’s rights had been violated or if the patient had been abused, neglected or exploited. We find that the circuit court’s denial in part of the motion in limine was not an abuse of discretion. See Poole v. Avara, 908 So.2d 716, 721 (Miss.2005) (“The standard of review for the admission or suppression of evidence ... is abuse of discretion.”). Hardaway’s function was to protect Hall’s rights as a patient, not to participate in accreditation or quality assurance.

YI. WHETHER THE CIRCUIT COURT ERRED IN ALLOWING AN EXPERT WITNESS IN THE FIELD OF PSYCHIATRY TO TESTIFY AS TO HALL’S PHYSICAL INJURIES AND FUTURE MEDICAL EXPENSES.

¶29. East Mississippi objects to Dr. Hiatt’s testimony as to Hall’s physical injuries and what medical expenses she might incur in the future. It contends that Dr. Hiatt, who had practiced family medicine in the past, was not an expert in orthopedics, infectious disease, vascular medicine, pain management or neurology. He never examined Hall, but testified after reviewing her medical records and photographs of her leg.

¶ 30. East Mississippi fails to note, however, that Dr. Hiatt served as a general medical officer in the U.S. Air Force, had served as a flight surgeon for the Mississippi Air National Guard, and had performed or assisted in numerous orthopedic surgeries. He was familiar with the use of antibiotics and how they treat infections.

¶ 31. Rule 702 of the Mississippi Rules of Evidence provides that expert testimony must be based upon sufficient facts or data; the testimony must be the product of reliable principles and methods; and the witness must have applied the principles and methods reliably to the facts of the case. Poole, 908 So.2d at 722. “Scientific knowledge means something more than unsupported speculation or subjective belief that is grounded in methods and procedures of science.” Id. at 723 (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), superceded by F.R.E. 702). Also, “[u]nlike an ordinary witness ... an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation.” Daubert, 509 U.S. at 592, 113 S.Ct. 2786. This Court has held that, “[a]bsent other grounds to exclude, an expert’s testimony is presumptively admissible when relevant and reliable.” Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 39 (Miss.2003). The basic threshold for admitting an expert’s opinion is whether the testimony is “based on scientific knowledge which would assist the trier of fact to understand or determine a fact at issue.” Poole, 908 So.2d at 724 (citing Daubert, 509 U.S. at 592, 113 S.Ct. 2786).

¶ 32. Dr. Hiatt testified that Hall suffered extensive orthopedic injuries, extensive soft tissue damage, and a string of infections. He pointed out that, after her hospitalization immediately following the accident, Hall was hospitalized several times for infections. He opined that, because of the nature of the soft tissue damages and the recurring infections, it was reasonable to assume that Hall would undergo additional treatment requiring hospitalization and possibly an amputation.

¶ 33. We find that Dr. Hiatt’s testimony was admissible under M.R.E. 702. The testimony was not based on any new or untested medical theories, but merely on his lengthy experience as a physician. All his testimony was based on facts found in extensive medical records; therefore it was reliable. The testimony assisted the trier of fact (here, the circuit judge); therefore, it was relevant.

VII. WHETHER THE CIRCUIT COURT ERRED IN FAILING TO ADMIT INTO EVIDENCE AN ERRATA SHEET PERTAINING TO A DEPOSITION.

¶ 34. Khín Waí, M.D., was Hall’s treating psychiatrist. Her deposition consisted of two volumes. There was only one correction on the errata sheet for her deposition. Nowhere does East Mississippi state what the correction was or whether it was relevant to the outcome of the case. “To the appellant falls the duty of insuring that the record contains sufficient evidence to support his assignments of error on appeal.” Dillard’s, Inc. v. Scott, 908 So.2d 93, 99 (Miss.2005) (quoting Burney v. State, 515 So.2d 1154, 1160 (Miss.1987), superceded by statute, Miss. Code Ann. § 99-7-2 (Rev.2000)).

VIII. WHETHER THE DAMAGES WERE EXCESSIVE.

¶ 35. Hall’s past medical expenses totaled $348,402.94. East Mississippi offered no rebuttal to these costs.

¶ 36. Hall was hospitalized immediately after the accident, but she had several other hospitalizations to treat the recurring infection in her leg. The circuit judge found that the average cost of these hospitalizations was $15,000. He awarded $75,000 for future medical expenses. East Mississippi offered no rebuttal to this estimate.

¶ 37. The damages total was $1,000,000, meaning that the circuit judge gave Hall $591,597.06 for pain and suffering and for a permanent physical impairment to the leg and foot. The circuit judge stated:

The injuries to the Plaintiffs right foot and heel cause drainage to ooze and her sock becomes attached to the wounds when she tries to remove it. As depicted by the photographs in evidence, it is clear that the Plaintiffs right foot and lower leg are swollen and that she has significant scar tissue as well. The foot appears to be deformed with a large calloused area around the heel....
She is permanently physically impaired and she will continue to have pain and suffering for the balance of her life. She has a noticeable limp in her walk and gait.
¶ 38. Hall suffered horrible injuries to her leg, and she will be impaired for the rest of her life. The amount of $591,597.06 is not even one and one-half times the amount of the compensatory damages. The circuit court’s award of $1,000,000 in damages was not excessive and is supported by substantial evidence.

IX. WHETHER THE CIRCUIT COURT ERRED IN GRANTING HALL’S MOTION FOR POST-JUDGMENT INTEREST.

¶ 39. Miss.Code Ann. § 75-17-7 (Rev.2000) provides that judgments in cases such as this “shall bear interest at a per annum rate set by the judge hearing the complaint from a date determined by such judge to be fair but in no event prior to the filing of the complaint.” (Emphasis added.) Here, the circuit court did not include post-judgment interest in its memorandum opinion and judgment. Subsequently, Hall filed a motion for post-judgment interest, which was granted.

¶ 40. Hall filed her motion under M.R.C.P. 60(a), alleging that the circuit court’s failure to address her prayer for post-judgment interest was a clerical error. East Mississippi contends, however, that her motion is, in actuality, a motion to alter or amend a judgment under M.R.C.P. 59(e), which is required to be filed within 10 days of the entry of judgment. Hall did not file her motion until 58 days after the circuit court filed its judgment. East Mississippi’s argument does not take into account our ruling in U.S. Fidelity & Guar. Co. v. Estate of Francis ex rel. Francis, 825 So.2d 38, 50 (Miss.2002):

We also hold the chancellor was within the bounds of his discretionary authority in awarding post-judgment interest. Because the right to post-judgment interest is a statutory right according to Miss.Code Ann. § 75-17-7 (1991), this Court does not conclude that the motion for interest was a motion to amend or alter the judgment. Therefore, we need not address the timeliness of filing the motion in accordance with M.R.C.P. 59. Miss.Code Ann. § 75-17-7 (1991) has been amended to allow interest “at a per annum rate set by the judge.” We hold that the chancellor’s awarding of interest at the rate of one percent above the prime rate of eight percent was within his discretion under the revised statute.

Therefore, under Francis, the Rule 59(e) 10-day limitation is not applicable to a motion for post-judgment interest.

¶ 41. Next, East Mississippi contends that the circuit court did not have jurisdiction to rule on the motion inasmuch as the motion was filed after East Mississippi had filed its notice of appeal. Indeed, the “timely filing of a notice of appeal is jurisdictional.” Smith v. Parkerson Lumber, Inc., 890 So.2d 832, 834 (Miss. 2003). We find, however, that, even if the circuit court did not have jurisdiction to rule upon Hall’s motion, the error would be harmless due to the mandatory nature of Miss.Code Ann. § 75-17-7 (Rev.2000): post-judgment interest “shall” be awarded.

¶ 42. East Mississippi argues that post-judgment interest cannot be awarded where, as here, the award of compensatory damages is equal to the statutory cap of $250,000 under the Mississippi Tort Claims Act, Miss.Code Ann. § 11^6-15 (Rev.2002). Section 11-46-15(2) specifically excludes awards of punitive damages, pre-judgment interest and attorney’s fees from being imposed against a governmental entity. Therefore, because the Legislature did not specifically exclude post-judgment interest, it may be awarded against governmental entities. See Miss. Transp. Comm’n v. Ronald Adams Contr., Inc., 753 So.2d 1077, 1094 (Miss.2000) (adopting plurality opinion in City of Jackson v. Williamson, 740 So.2d 818, 821 (Miss.1999)). Public policy also demands that governmental entities covered by the MTCA pay post-judgment interest:

Several important public policy considerations undergird both legislative intent and our interpretation of that intent today regarding post-judgment interest. Post-judgment interest is generally recognized as a common-law element of actual damages in civil actions. In fact, we have long held that interest is not imposed as a penalty but instead as compensation for detention of overdue money. This resolves any questions of hybrid situations where the governmental entity is represented by an insurance company to which the governmental entity has paid a premium for costs, interest, and statutory damages. Indeed, our citizenry must be given the benefit of that which they have already paid. Dealing with the current issue as we have rectifies the gamut of potential scenarios that may arise.
Further, simple interest is not a sufficient remedy. The utility of post-judgment interest, statutory damages, and costs is that of supplementing this simple damages interest with necessary additional damages. In addition, the application of post-judgment interest and statutory damages discourages frivolous appeals and encourages governmental actors to settle legitimate claims when made. The potential of paying post-judgment interest and statutory damages encourages speedy compensation of legitimate claims and discourages litigation of unworthy issues. The strategy of delaying payment until the award has actually diminished in value will be thwarted. The interests of worthy claimants and judicial economy will each be advanced by today’s holdings.

Williamson, 740 So.2d at 823 (citations omitted).

¶ 43. We find that, due to the mandatory nature of § 75-17-7 and because public policy heavily favors post-judgment interest, post-judgment interest over and above the statutory cap may be awarded against a governmental entity.

CONCLUSION

¶ 44. For these reasons, we affirm the circuit court’s judgment in favor of Julia Renee Hall.

¶ 45. AFFIRMED.

SMITH, C.J., DIAZ, CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR. COBB, P.J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. EASLEY, J., NOT PARTICIPATING.

      . The East Mississippi State Hospital is a psychiatric facility operated by the Mississippi Department of Mental Hospital.

      . The accident occurred on June 4, 2001. Her discharge date was March 8, 2002.

      . Prior to the accident, the Social Security Administration had declared Hall disabled due to her mental impairments.

      . The circuit judge ruled that the compensatory damages consisted of "past, present and future reasonable medical expenses, pain and suffering, disability, disfigurement, and the like.”

      .The statutory limitation of liability in effect at the time of Hall’s accident was $250,000. Miss.Code Ann. § 11-46-15 (Rev.2002).

      . See also Tomfohr v. Mayo Found., 450 N.W.2d 121, 124 (Minn.1990) (a hospital voluntarily undertakes the duty to protect the patient from self-inflicted injury, it had assumed a duty to exercise reasonable care to prevent the event.); Cowan v. Doering, 111 N.J. 451, 545 A.2d 159, 162 (1988) (under certain circumstances, a hospital has the duty to exercise reasonable care to prevent patients from engaging in self-damaging conduct); Kent v. Whitaker, 58 Wash.2d 569, 364 P.2d 556, 557 (1961) (where patient with known suicidal tendencies strangled herself with plastic tubing while unattended in locked room concerned “failure of the specific duly of exercising reasonable care to safeguard and protect a patient with known suicidal tendencies from injuring herself”).

      . Dr. Hiatt was a consultant for the East Mississippi adolescent unit, a position which required weekly visits. He had never, however, visited the unit from which Hall attempted her escape.

      . To involuntarily commit a person to a mental institution, a court must find by clear and convincing evidence that the person is mentally ill and that “involuntary commitment is necessary for the protection of the patient or others.” Miss.Code Ann. § 41-21-83 (Rev. 2005).

      . Hardaway testified that a patient advocate protects the rights of patients and investigates any allegations of abuse, neglect or exploitation.


source: Caselaw Access Project

author: CARLSON, Justice,

license: Public Domain

text:
    Roy BRADFIELD v. Richard SCHWARTZ d/b/a Schwartz & Associates, P. A., and Richard Schwartz, Individually On Motion for Rehearing.
    No. 2005-CA-00197-SCT.
    Supreme Court of Mississippi.
    Aug. 24, 2006.

      James Ashley Ogden, Jackson, Michael B. McMahan, Hattiesburg, attorneys for appellant.
    J. Wyatt Hazard, attorney for appellees.
   ON MOTION FOR REHEARING

CARLSON, Justice,

for the Court.

¶ 1. The motion for rehearing is denied. The original opinion is withdrawn, and this opinion is substituted therefor.

¶ 2. This case comes before us on appeal from a final judgment entered by the Circuit Court for the First Judicial District of Hinds County. The jury returned a verdict in favor of the plaintiff and against Schwartz & Associates, P.A. in the sum of $8,750; however, the jury returned a verdict against the plaintiff on all issues as to Richard Schwartz, individually. In entering final judgment in this case, Judge Winston L. Kidd specifically determined the jury verdict was consistent with the evidence presented at trial and that the plaintiffs motion for punitive damages was not well taken and should be denied. Aggrieved by the circuit court’s failure to submit the issue of punitive damages to the jury, the plaintiff now appeals. Finding that the circuit court erred in failing to comply with the statutory requirement to conduct an evidentiary hearing on punitive damages, we reverse and remand this case to the trial court to conduct an evidentiary hearing in order to determine whether the issue of punitive damages should be considered by the jury.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 3. On July 16, 1999, Roy Bradfield was traveling northbound on Interstate-55 when his truck was rear ended by a tractor-trailer owned by Parker Brothers Trucking. Upon impact, Bradfield and his passenger, Kenny Butler, were ejected from Bradfield’s truck. As a result of the accident, Bradfield suffered severe injuries, and Butler was killed.

¶ 4. Calvin Burwell, who was also traveling northbound on 1-55, witnessed the accident and was one of the first to arrive on the scene. After pulling his truck to the side of the road, Burwell discovered Brad-field lying unconscious near the center line of 1-55 and went to his aid. When Brad-field regained consciousness, he discovered Burwell at his side, and the two conversed. During their brief conversation Burwell assured Bradfield that he would help him find an attorney. Once emergency units arrived on the scene about thirty minutes after the accident, Burwell left and continued on his way to Lexington, Mississippi, where he had a scheduled appointment.

¶ 5. According to Burwell, after the accident, he telephoned the University Medical Center to check on Bradfield’s condition. It was during this brief phone conversation with Bradfield that Burwell first suggested that Bradfield retain Richard Schwartz as his legal counsel. Burwell maintains that immediately after his phone conversation with Bradfield, he telephoned Schwartz & Associates to inform the law firm that he had recommended that Bradfield retain the firm for legal representation in connection with the injuries Bradfield suffered in his accident. Burwell testified that his call to Richard Schwartz’s office was returned by one of Schwartz’s associates, David Ga-lyon. Burwell further testified that the Sunday afternoon following the accident Galyon telephoned him, picked him up at his house, and the two of them drove to UMC where they proceeded to “sign Brad-field up” by way of a contract for legal representation.

¶ 6. According to Burwell, shortly after visiting Bradfield at the hospital, he (Bur-well) went to Richard Schwartz’s office where he met with both Galyon and Schwartz and negotiated an alleged agreement whereby Burwell would be compensated by Schwartz & Associates as an investigator on Bradfield’s case at the rate of twenty dollars per hour. Burwell’s testimony reveals that this fee was to be paid in lieu of a “finder’s fee.” Burwell claims the majority of his billable hours while under the employ of Schwartz was spent in an effort to procure the case of Bradfield’s passenger, Kenny Butler, through Butler’s heirs.

¶ 7. In contrast to Burwell’s testimony, Richard Schwartz testified that he first met Burwell two to three weeks prior to the accident when Burwell came to his office seeking employment. Schwartz maintained that he informed Burwell that while his firm had no need for his services at that time, he would consider him in the future. Schwartz asserted that Burwell’s employment with Schwartz & Associates came about following Bradfield’s accident after Burwell telephoned Schwartz’s office to inform the firm that he had recommended the firm to Bradfield for legal representation. Moreover, it was only after he determined that Burwell had been on the scene immediately after the accident, and would be a logical and advantageous choice for the case, that Schwartz agreed to hire Burwell as an investigator and compensate him at a rate of $20.00 per hour. Interestingly, Schwartz hired Burwell without requiring any references and without having knowledge as to whether Burwell had any investigative experience. Moreover, Schwartz agreed that Bradfield’s case was the kind of case for Burwell to “bite his teeth in.” Schwartz claimed that, at the time, hiring Burwell was the best decision he could make for his client and that based on his compilation of investigation notes, witness statements and other information, Bur-well’s work appeared to be reasonable. According to Schwartz, on August 13, 1999, because liability against Parker Trucking had been established, he instructed his firm’s accounting department to cease paying Burwell’s investigation invoices as further investigation had become unnecessary. According to Schwartz’s files, the only documented investigative work product generated by Burwell in this case were pictures taken of the automobiles involved in the wreck.

¶ 8. Following the accident, Bradfield’s case was assigned to Mike Davis, a claims manager at Schwartz & Associates. According to Davis’s testimony, he supervised the Bradfield case and became privy to Burwell’s “phantom function” at the firm. Davis claimed he questioned Schwartz about Burwell’s investigative work and ultimately began tracking Bur-well’s expenses. He testified further that a substantial portion of Burwell’s investigative expenses, which should have been allocated to the firm based on time spent in trying to obtain the Kenny Butler case, found its way onto Bradfield’s billing statement and that Bradfield was billed accordingly. Davis asserts that Schwartz forced him to improperly bill Bradfield.

¶ 9. On May 10, 2000, Schwartz & Associates settled Bradfield’s case with Parker Brothers Trucking’s insurer for $181,250. Upon receipt of the settlement check, Davis approved all legal fees and expense deductions and, on May 14, 2000, disbursed a check in the amount of $63,340.15 to Bradfield. The total of the Burwell investigative expenses deducted from the settlement in the Bradfield case was in the amount of $3,753.73.

¶ 10. Schwartz claims that the Burwell expenses were inadvertently placed on Bradfield’s bill and that this clerical error occurred without his knowledge. Schwartz further asserts that he first became aware there were problems with the Bradfield settlement upon receipt of the summons and complaint in the instant litigation. Moreover, Schwartz states that after reviewing Burwell’s billing and trying to distinguish exactly which invoices related to what case — Butler or Bradfield' — -he met with Burwell in an effort to resolve the matter. After several failed attempts to follow up with Burwell, Schwartz issued a check to Bradfield for the estimated amount of all charges exacted by Bur-well — $4,500 plus interest. The check was tendered to Bradfield without any requirement that Bradfield release Schwartz and his firm from any further liability based on the billing discrepancy.

¶ 11. On February 1, 2001, Bradfield commenced suit against both Richard Schwartz and his law firm, Schwartz & Associates, P.A., claiming that Burwell’s investigation expenses were fraudulently and improperly deducted from his settlement. Specifically, Bradfield claimed the expenses were not for investigation, but rather were a “finder’s fee” which Schwartz had intentionally passed on to him. In so claiming, Bradfield charged Schwartz with breach of contract, breach of a covenant of good faith and fair dealing, intentional acts of fraud and conspiracy to defraud. Bradfield further claimed that Schwartz’s actions caused him to suffer economic loss and pain and suffering and, additionally, requested that he be awarded punitive damages for Schwartz’s willful and wanton conduct.

¶ 12. At trial, Schwartz denied all of Bradfield’s allegations; however, Schwartz readily acknowledged that Bradfield had been overcharged due to an accounting mistake. Accordingly, Schwartz & Associates acknowledged that judgment should be entered against it in the amount of the investigative charges mistakenly taken out of Bradfield’s settlement check.

¶ 13. Following a five day circuit court trial, the jury found against Schwartz and Associates in the amount of $8,750, but found in favor of Schwartz, individually, concerning Schwartz’s personal liability due to the mistaken billing. After the jury returned a verdict for compensatory damages in his favor, Bradfield requested the trial judge to allow the parties to proceed to the punitive damages phase of the trial. Finding there was no genuine issue which would afford the jury the option of awarding punitive damages, the trial judge denied Bradfield’s motion for an evidentiary hearing on punitive damages, and a final judgment was subsequently entered as to all issues.

¶ 14. Bradfield has appealed the trial court’s final judgment to this Court, challenging the court’s denial of his motion for a punitive damages hearing, and the court’s denial of certain requested jury instructions which would have informed the jury of its option to award Bradfield damages by way of a complete disgorgement of the attorneys fees he paid to Schwartz. We now consider Bradfield’s arguments.

DISCUSSION

¶ 15. When deciding whether to submit the issue of punitive damages to a trier of fact, the trial court looks at the totality of the circumstances, as revealed in the record, to determine if a reasonable, hypothetical trier of fact could find either malice or gross neglect/reckless disregard. Ross-King-Walker, Inc. v. Henson, 672 So.2d 1188, 1191 (Miss.1996). An abuse of discretion standard is used when this Court reviews the trial court’s decision on whether a case warrants punitive damages be considered by the trier of fact. Doe ex rel. Doe v. Salvation Army, 835 So.2d 76, 81 (Miss.2003) (citing Hurst v. Southwest Miss. Legal Servs. Corp., 708 So.2d 1347, 1351 (Miss.1998)).

I. WHETHER THE CIRCUIT COURT ABUSED ITS DISCRETION BY NOT ALLOWING THE ISSUE OF PUNITIVE DAMAGES TO BE SUBMITTED TO THE JURY

¶ 16. Bradfield asserts the circuit court erred in not allowing the jury to consider whether Richard Schwartz, individually, and his firm, Schwartz & Associates, should be liable for punitive damages above the compensatory damages awarded. Moreover, Bradfield claims that Schwartz’s actions of running a case and charging the runner’s expenses to the client were willful and malicious acts and a breach of Schwartz’s fiduciary duty to Bradfield. Accordingly, Bradfield asserts there was sufficient evidence produced at trial to warrant having the issue of punitive damages submitted to the jury.

¶ 17. “Mississippi law does not favor punitive damages; they are considered an extraordinary remedy and are allowed with caution and within narrow limits.” Life & Cas. Ins. Co. of Tenn. v. Bristow, 529 So.2d 620, 622 (Miss.1988). “As a general rule, exemplary or punitive damages are ‘added damages’ and are in addition to the actual or compensatory damages due because of an injury or wrong. The kind of wrongs to which punitive damages are applicable are those which, besides the violation of a right or the actual damages sustained, import insult, fraud, or oppression and not merely injuries, but injuries inflicted in the spirit of wanton disregard for the rights of others.” Summers ex rel. Dawson v. St. Andrew’s Episcopal School, Inc., 759 So.2d 1203, 1215 (Miss.2000) (citing Fowler Butane Gas Co. v. Varner, 244 Miss. 130, 150-51,141 So.2d 226, 233 (1962)). See also Paracelsus Health Care Corp. v. Willard, 754 So.2d 437, 442 (Miss.1999). “In order to warrant the recovery of punitive damages, there must enter into the injury some element of aggression or some coloring of insult, malice or gross negligence, evincing ruthless disregard for the rights of others, so as to take the case out of the ordinary rule.” Id. (citing 15 Am.Jur., Damages, Sec. 265, p. 698).

¶ 18. In Wise v. Valley Bank, 861 So.2d 1029 (Miss.2003), a case involving a bank teller who forged a customer’s signature on a bank withdrawal slip and ultimately stole $1,500, we revisited our familiar case law regarding punitive damage awards. In evaluating the bank’s conduct during the ordeal, this Court, in a plurality opinion, reiterated the substance of a punitive damage claim as it applied to the defendant bank:

The sole obligation of the bank, absent bad faith in its handling of the matter, was to make restitution. Miss.Code Ann. § 75-4-103 (Rev.2002). Restitution was immediately made by the bank upon learning of the forgery. The bank did all that it could do to ascertain what actually occurred concerning this incident. There was no bad faith by the bank. Thus, this is not a punitive damages case.
Absent behavior described above which supports punitive damages, no such claim could be made. Miss.Code Ann. § 11 — 1—65(l)(a) (Rev.2002) will only allow for punitive damages where a plaintiff shows by clear and convincing evidence actual malice, gross negligence evidencing a willful, wanton, or reckless disregard for the safety of others, or the commission of actual fraud. “In order for punitive damages to be awarded, the plaintiff must demonstrate a wilful or malicious wrong, or the gross, reckless disregard for the rights of others. Punitive damages are only appropriate in the most egregious cases.... ” Paracelsus Health Care Corp. v. Willard, 754 So.2d 437, 442 (Miss.1999) (citations omitted). The totality of the circumstances and the aggregate conduct of the defendant must be examined before punitive damages are appropriate. Id. See also Summers ex rel. Dawson v. St. Andrew’s Episcopal Sch., Inc., 759 So.2d 1203, 1215 (Miss.2000); Ross-King-Walker, Inc. v. Henson, 672 So.2d 1188, 1191 (Miss.1996). The act complained of here was committed solely by a single bank teller. The bank’s investigation of the matter was certainly complete, thorough and proper. There is also the requirement that there must be ruthless disregard for the rights of others in order to remove the case from the ordinary rule. Fowler Butane Gas Co. v. Varner, 244 Miss. 130, 141 So.2d 226, 233 (1962). See also Fedders Corp. v. Boatright, 493 So.2d 301, 311 (Miss. 1986). Considering the totality of the circumstances, the bank’s conduct indicates a thorough attempt to satisfactorily resolve the matter. This Court has only allowed punitive damages where the facts are highly unusual and the eases extreme. South Cent. Bell v. Epps, 509 So.2d 886, 892 (Miss.1987). See also Aqua-Culture Techs., Ltd. v. Holly, 677 So.2d 171, 184 (Miss.1996).

865 So.2d at 1034-35.

¶ 19. The substantive standards we apply to today’s punitive damage claim as asserted by Bradfield are clear. Moreover, in order for the issue of punitive damages to warrant jury consideration, Bradfield must show that a question of fact exists as to whether the aggregate of Schwartz’s conduct in the handling of his case evidences willful or wanton conduct or the commission of fraud. However, before we can evaluate the evidence and determine the nature of Schwartz’s conduct in this case, we must evaluate the procedure implemented by the circuit court under which such evidence was produced. Moreover, it is essential that the court properly allowed the evidence to be considered in accord with the claim the evidence was submitted to prove, and that evidence regarding the plaintiffs claim for punitive damages was properly presented, heard and ruled on according to its substance and merit.

¶ 20. Miss.Code Ann. § ll-l-65(l)(a)(e) as it existed at the time this suit was commenced on February 1, 2001, specified the important evidentiary process by which a trial court proceeds when a prayer for punitive damages is included in a complaint. Accordingly, the process requires, inter alia:

(1) In any action in which punitive damages are sought:
(a) Punitive damages may not be awarded if the claimant does not prove by clear and convincing evidence that the defendant against whom punitive damages are sought acted with actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud.
(b) In any action in which the claimant seeks an award of punitive damages, the trier of fact shall first determine whether compensatory damages are to be awarded and in what amount, before addressing any issues related to punitive damages.
(c) If, but only if, an award of compensatory damages has been made against a party, the court shall promptly commence an evidentiary hearing before the same trier of fact to determine whether punitive damages may be considered.
(d) The court shall determine whether the issue of punitive damages may be submitted to the trier of fact; and, if so, the trier of fact shall determine whether to award punitive damages and in what amount.

Miss. Code Ann. § 11-1-65(1) (emphasis added).

¶ 21. Importantly, our punitive damages statute mandates the bifurcation of the issues of liability/compensatory damages and punitive damages. The statute requires that evidence concerning punitive damages be presented separately at a subsequent evidentiary hearing to take place, if and only if, the jury has awarded some measure of compensatory damages. Thus, the detailed procedure which is outlined above must be meticulously followed because, without an evidentiary buffer at trial, juries will ultimately confuse the basic issue of fault or liability and compensatory damages with the contingent issue of wanton and reckless conduct which may or may not ultimately justify an award of punitive damages.

¶22. If punitive damages are indeed to be awarded within the limitations prescribed by statute, then evidence which does not pertain to compensating the plaintiff but only pertains to proof that a punitive damage award is appropriate, should not be heard by the jury until liability has been determined. Moreover, to try a case any other way would allow a jury to consider punitive damages evidence while determining the compensatory damage award. This is a troubling scenario when one considers that under such procedure, not only is the jury subject to possibly returning an inflated compensatory damage award based on consideration of the wrong evidence, it may also forego a finding for the defendant altogether in those situations where the jury may have otherwise seriously considered finding for the defendant, by considering only the appropriate evidence as to fault/liability. In order to preclude this troublesome result, section 11-1-65 insulates a jury from hearing and considering both the issue and the evidence regarding punitive damages until after it has decided the case-determinative issue regarding the culpability of the defendant. Then, and only then, if the jury has determined that compensatory damages are appropriate, is the jury allowed to hear, and possibly consider, evidence regarding the issue of punitive damages.

¶ 23. If the jury awards compensatory damages, then an evidentiary hearing is conducted in the presence of the jury. At the close of this second phase of the trial, via an appropriate motion for a directed verdict, the judge, as gatekeeper, then ultimately decides whether the issue of punitive damages should be submitted to the trier-of-fact (jury). If the judge, from the record, should determine, as a matter of law, that the jury should not be allowed to consider the issue of punitive damages, a directed verdict shall be entered in favor of the defendant on the issue of punitive damages, and the case will end. If, on the other hand, the judge should allow the issue of punitive damages to be considered by the jury, then the jury, upon being properly instructed by the judge on the punitive damages issue, may decide to award punitive damages, and if so, in what amount, or the jury may decide not to award punitive damages. If the jury should award punitive damages, then, pri- or to entry of the final judgment on an award of punitive damages, the judge, pursuant to Miss.Code Ann. § 11 — 1— 65(1)0000, shall “ascertain that the award is reasonable in its amount and rationally related to the purpose to punish what occurred giving rise to the award and to deter its repetition by the defendant and others,” by considering the factors set out in Miss.Code Ann. § 11 — 1—65(l)(f)(ii)(l—4). While the statute does not envision that the judge could increase the amount of the jury’s punitive damages award, the judge could unquestionably, consistent with the statute, reduce the amount of the jury’s punitive damages award. Finally, just as in any other case, the judge will ultimately decide, via the appropriate post-trial motions, whether it was error to submit the punitive damages issue to the jury.

¶ 24. Paying close attention to these statutory requisites, we now review the procedure employed in this case. In today’s case, after a five-day trial, the jury returned a verdict against Schwartz & Associates in the amount of $8,750. Considering that the dollar amount of Burwell’s investigative expenses representing the amount of actual damages was $3753.53, such an award can easily be found to be representative of a compensatory damage award. Accordingly, pursuant to Miss. Code Ann. § 11 — 1—65(l)(c), the circuit court should have automatically proceeded to the punitive damages phase of the trial, where the judge and jury could then focus on the issue of punitive damages. Moreover, the judge and the jury could have considered all the factors as enumerated in Section 11-1-65. Notably, a punitive damages phase would permit both the judge and the jury to evaluate the conduct of Schwartz & Associates in light of the standards of ethics and professionalism that control a firm, and the lawyers within the firm, in the practice of law in this State. See also Miss.Code Ann. § 73-3-35 (Rev. 2004).

¶ 25. Based on our clear procedural mandate and the jury’s determination to award compensatory damages, we find the circuit court erred when it failed to conduct an evidentiary hearing on the issue of punitive damages pursuant to the statutory mandates. Moreover, we find that when the jury returned a verdict which resulted in a compensatory damages award, a punitive damages phase of trial should have automatically proceeded, consistent with the applicable statutory provisions. Accordingly, during this second phase of this bifurcated trial, the jury would have received evidence regarding the conduct of the law firm of Schwartz & Associates in its handling of the Bradfield case.

¶ 26. It is essential that the two different standards of proof required by the completely different types of damages be separated and that the trial judge, as the gatekeeper of the evidence, be allowed to consider the substantive proof specific to each standard separately. Moreover, a trial judge must be given the procedural impetus to properly preserve the issue of punitive damages, and the inflammatory evidence that often accompanies it, for the perhaps rare and egregious case where the judge deems consideration of such damages appropriate. It follows that the imposition of strict procedural guidelines is the only way to insure that a damage award is commensurate with, and limited to, the damages issue directly before the trier of fact.

¶27. Thus, we are constrained as a matter of law to find that this issue, to the extent discussed, has merit, in that the trial court failed to follow the correct procedures mandated by statute for a bifurcated trial when confronted with a case involving a claim for punitive damages, after the jury had returned a verdict for compensatory damages.

II. WHETHER THE CIRCUIT COURT ERRED IN REFUSING JURY INSTRUCTIONS P-7 AND P-13 AND NOT ALLOWING THE JURY TO CONSIDER DISGORGEMENT OF THE SUM OF SCHWARTZ’S ATTORNEYS FEES AS PART OF BRAD-FIELD’S DAMAGES.

¶ 28. Based on our disposition of Issue I, we deem it unnecessary to address this issue.

CONCLUSION

¶ 29. Miss.Code Ann. § 11-1-65(l)(c) (Rev.2002) expressly provides that if a properly instructed jury returns a verdict for compensatory damages against a party, the trial court “shall promptly commence an evidentiary hearing before the same trier of fact to determine whether punitive damages may be considered.” (Emphasis added). Because the jury returned a verdict for the sum of $8,750 in favor of Bradfield and against Schwartz & Associates, and because the trial court failed to promptly commence an evidentia-ry hearing before the same jury in order to determine whether punitive damages may be considered, the trial court erred, thus requiring us to reverse and remand.

¶ 30. To give guidance to the trial court and the parties upon remand, procedurally this case is in the posture that compensatory damages have already been awarded against Schwartz & Associates, and a jury verdict has been rendered in favor of Schwartz, individually. Thus, the issue of compensatory damages has already been determined. Acknowledging that on remand, it is impossible for the same jury to hear this case, the trial judge shall cause summons to be issued for a venire according to statute, and a new trial jury shall be selected. Both Bradfield and Schwartz & Associates shall be given the opportunity to present evidence before the jury on the issue of punitive damages. Just as in any other case, at the conclusion of the presentation of the evidence, the trial judge will be confronted with the issue of whether to allow the jury to consider the issue of punitive damages. If the judge, from the record before him, should determine, as a matter of law, that the jury should not be allowed to consider the issue of punitive damages, a directed verdict shall be entered in favor of the defendant on the issue of punitive damages, and the case will end. If the judge should allow the jury to deliberate on the issue of punitive damages, a properly instructed jury would then be permitted to determine whether the plaintiff is entitled to an award of punitive damages, and if so, in what amount. If the jury determines that the plaintiff is not entitled to punitive damages, it may say so by its verdict. If, on the other hand, the jury should award punitive damages, then the judge shall follow the procedures mandated by Miss.Code Ann. § 11 — 1— 65(l)(f)(i)(ii)(l-4), prior to entering judgment. Any final judgment entered pursuant to these proceedings shall be subject to the same scrutiny by the trial judge via the customary post-trial motions. See Paracelsus Health Care Corp. v. Willard, 754 So.2d 437 (Miss.1999) (Willard II); Willard v. Paracelsus Health Care Corp., 681 So.2d 539 (Miss.1996) (Willard I).

¶ 31. For the reasons stated, the judgment of the trial court on the issue of punitive damages is reversed, and this case is remanded to the Circuit Court for the First Judicial District of Hinds County for proceedings consistent with this opinion.

¶ 32. REVERSED AND REMANDED.

SMITH, C.J., WALLER AND COBB, P.JJ., DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. EASLEY AND GRAVES, JJ., NOT PARTICIPATING.

      . Schwartz claimed that he normally paid his investigators $40.00 per hour, but due to Bur-well's lack of investigative experience, Schwartz reduced Burwell's rate of compensation to $20.00 per hour.

      . It is indisputable that if Schwartz were forced to litigate this case, Burwell, as an eyewitness to the accident, would be an important witness at trial. It is thus at least questionable as to whether Burwell should have been on Schwartz's payroll.

      . This is totally inconsistent with Schwartz’s testimony that Burwell had compiled investigative notes, witness statements and other information.

      . Mike Davis has a multi-million dollar lawsuit pending against Schwartz. In that suit, Davis is represented by Bradfield’s counsel. It follows that all of Davis's testimony was understandably contested at trial.

      . Schwartz admitted that Burwell worked on Butler’s case; however, Schwartz testified that Burwell informed him that Butler had an heir who lived in Lansing, Michigan. According to Schwartz, by the time he received this information from Burwell concerning a potential heir in Michigan, he (Schwartz) had already received a telephone call from one of Butler’s siblings (whose name he could not recall) stating that the Butler siblings would have a "family meeting” to determine which lawyer the family would hire to represent them in the wrongful death claim. Although less than clear, the gist of Schwartz’s testimony on this point was that because he felt the Butler siblings were "cutting out” a potential heir in Lansing, Michigan, he determined that "ethically we cannot represent them [siblings] if there’s another heir.” Schwartz’s senior attorney, Dave Galyon, destroyed his notes when the firm became convinced it did not have a contract with the Butler heirs.

      . Of note, in his prayer for damages against Schwartz, individually, and his firm, Schwartz & Associates, Bradfield included his post-settlement payment of $10,000 to Bur-well, which occurred after Burwell’s tenure with Schwartz & Associates had concluded. Bradfield claims that his exclusive dealings with Burwell, as a representative of the firm of Schwartz & Associates, led him to believe that Burwell was collecting money from him in his capacity as a representative of the law firm. Conversely, Schwartz claims that Bur-well, in essence, duped Bradfield into paying him the money and cites Burwell’s testimony that the $10,000 paid to him by Bradfield was a "gift.”

      . As noted, Wise was a plurality decision; however, the punitive damages law espoused in Wise is hardly unfamiliar to our jurisprudence.

      . Section ll-l-65(c) has since been amended, but the amended version does not apply to today’s case.

      . We readily acknowledge that it is hardly uncommon for cases to involve “mixed facts" which would be relevant on both the issues of liability and punitive damages. For example, while a defendant driver’s intoxication would no doubt be an issue for the jury to consider in making a determination on punitive damages, evidence of the intoxication would likewise be relevant on the issue of liability.

      . We make this statement remembering that section 11 — 1—65(l)(f)(ii) states that "[i]n determining whether the [punitive damages] award is excessive, the court shall take into consideration the following factors ...” (Emphasis added). There is no statutory requirement that the trial judge consider whether the jury award of punitive damages is inadequate.

      . We are mindful of the fact that Bradfield asserts that, on the issue of punitive damages, the jury should have been allowed to consider evidence on his claims that (in the words of Bradfield and his counsel) Schwartz (1) paid a runner to run Bradfield's case; (2) cheated his client despite protests from a firm employee; (3) ignored his "last chance” to not cheat his client; (4) tried to conceal his fraud by "shutting up” Mike Davis; (5) maintained a program of paying runners ten percent of the attorneys fees collected; (6) standardized a system that defrauded all his clients; and, (7) was not mistaken on the fact that he was paying a runner in Bradfield’s case. We are also mindful of the fact that in today's appeal, the issue of professional and/or ethical violations on the part of Schwartz is not before us, and in all fairness, there is disputed testimony on this issue, including that of Davis, who, at the time of trial, had his own pending litigation against Schwartz. As an appellate court, we unquestionably are not about the business of judging the credibility of witnesses.

      . As we have already noted, had the trial judge in today’s case permitted the parties to present evidence in the punitive damages phase of the trial, at the conclusion of the presentation of the evidence in the punitive damages phase of the trial, the trial judge would have had the opportunity to determine, based on the evidence and the applicable law, whether the issue of punitive damages should be submitted to the jury.


author: BARNES, J.,

text:
    Christopher Cornielus MOORE a/k/a Christopher A. Moore a/k/a Christopher Alexander Moore, Appellant v. MISSISSIPPI DEPARTMENT OF CORRECTIONS, Appellee.
    No. 2004-CP-01706-COA.
    Court of Appeals of Mississippi.
    Nov. 29, 2005.
    Rehearing Denied June 6, 2006.

      Christopher Cornielus Moore, Appellant, pro se.
    Office of the Attorney General by Jane L. Mapp, attorney for appellee.
    Before KING, C.J., IRVING and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Christopher C. Moore filed a “Petition for Writ of Habeas Corpus” in the Circuit Court of Rankin County, Mississippi. On July 23, 2004, the circuit court entered an order dismissing the petition. The court considered the pleading as a petition for post-conviction relief and found that the court did not have jurisdiction to consider the petition since the sentence had been imposed in another district and the petitioner was housed in a Mississippi Department of Corrections facility outside the jurisdiction of the court. The court ordered the forfeiture of earned time pursuant to Mississippi Code Annotated section 47-5-138 (Rev.2002).

¶2. Moore filed a notice of appeal and raises these issues: (1) whether the trial court erred in rejecting his habeas petition for lack of jurisdiction; (2) whether Moore’s habeas petition should be treated as a post-conviction petition; and (3) whether Moore’s earned time should be forfeited because of the failure of the trial court to judge the petitioner’s habeas corpus on its face.

¶ 3. The Court finds no merit to Moore’s arguments and affirms the circuit court finding.

FACTS

¶ 4. Christopher C. Moore pleaded guilty in the Circuit Court of Lee County, Mississippi, on or about November 4,1998, to the crime of possession of cocaine with intent to distribute. He was sentenced to twenty years in the custody of the Mississippi Department of Corrections (MDOC) and placed in the Intensive Supervision Program (ISP), commonly known as “house arrest,” for one year.

¶ 5. Under the sentencing order, if Moore successfully completed the program, the remainder of his sentence was to be suspended and he was to be placed on supervised probation. If he failed to successfully complete the program, he was to be placed in the general prison population to complete the full sentence.

¶ 6. Moore also pled guilty to possession of cocaine and was sentenced to a concurrent three-year sentence and placed under “house arrest” for one year. The conditions for suspension of his sentence were the same as with the other sentence.

¶ 7. On December 7, 1998, Moore was given a Rules Violation Report. In a statement to the Verona, Mississippi, police department, Moore had admitted to the crime of sexual battery. An ISP revocation hearing was held on or about December 22, 1998, and, based on the evidence presented, Moore’s ISP was revoked, and he was returned to the general prison population to serve the twenty-year sentence.

¶ 8. Moore filed his first motion for post-conviction relief on September 19, 2000, arguing that his ISP had been revoked without a probation hearing, thus denying him due process of law. The circuit court denied relief on February 5, 2001.

¶ 9. On April 12, 2003, Moore filed a second motion for post-conviction relief, in which he claimed that his guilty plea was involuntary and that he was afforded ineffective assistance of counsel. This second motion was dismissed as a successive writ. Moore filed a notice of appeal, and this Court affirmed the judgment of the Circuit Court of Lee County. Moore v. State, 897 So.2d 997 (Miss.Ct.App.2004).

¶ 10. More than five years after he was removed from ISP and placed in the general prison population, Moore filed a grievance with the MDOC’s Administrative Remedy Program (ARP), claiming that he was unlawfully incarcerated. His claim was found to be without merit, and he was given a Certificate of Completion. Moore signed a receipt on March 30, 2004, stating that he had received the certificate. The certificate stated that Moore has “fulfilled the requirements of the Administrative Remedy Program and is eligible to seek judicial review within 30 days of receipt of the Third Step Response.”

¶ 11. It was approximately three and a half months later, on July 22, 2004, that Moore filed his “Petition for Writ of Habe-as Corpus” in the Circuit Court of Rankin County. Moore claimed that his ISP had been revoked based on a false police report and a coerced confession. Moore stated that the sexual battery charges had been dropped and he attached a letter from the Verona Chief of Police stating that Moore was never indicted on the sexual battery charge.

¶ 12. In the order dismissing the pleading, Circuit Court Judge Samac Richardson found the following: (1) that Moore was housed in the East Mississippi Correctional Facility in Meridian, Mississippi; (2) that the court should treat the pleading as a petition for post-conviction relief; (3) that the court did not have the jurisdiction to hear and consider a petition for post-conviction relief since the sentence was imposed in another circuit court district; (4) that if the court considered the pleading as a petition for writ of habeas corpus, the court would not have jurisdiction of all the parties, since Moore was housed in a MDOC facility outside the jurisdiction of the court; and (5) that the pleading was without merit and frivolous, and therefore Moore should forfeit the appropriate earned time under Mississippi Code Annotated section 47-5-138.

DISCUSSION

Whether the trial court erred in rejecting Moore’s habeas petition for lack of jurisdiction

¶ 13. The Circuit Court of Rankin County found that since Moore was housed in the correctional facility in Lauderdale County it lacked jurisdiction over the ha-beas petition. Moore’s argument is that since the classification committee that revoked his ISP is located in Rankin County, the appeal can properly be brought in that county.

¶ 14. Under Mississippi Code Annotated section 47-5-807 (Rev.2000), Moore had thirty days to seek judicial review of the MDOC’s decision under ARP. Moore acknowledged receipt of the decision on March 30, 2004, and his petition was not filed under July 22, 2004, well beyond the thirty-day period. “Filing within the statutorily-mandated time is jurisdictional.” Stanley v. Turner, 846 So.2d 279, 282(¶ 11) (Miss.Ct.App.2003) (citing Edmond v. Anderson, 820 So.2d 1, 3(¶ 8) (Miss.Ct.App.2002)). Moore claims to have filed one or more motions for extension of time, but there is no indication that these motions were ever ruled on and they are not part of the record. The Court, therefore, must conclude that the petition was not timely filed, and that the circuit court did not have jurisdiction.

¶ 15. Although Moore titled his motion a petition for habeas corpus relief, this does not change the nature of the relief sought or the remedy. “A habeas corpus proceeding is appropriate as an original proceeding only to protest a constitutionally-recognized liberty interest, asserted by the petitioner.” Stanley, 846 So.2d at 281 (¶ 8). See Miss.Code Ann. § 11-43-1 (Rev.2002). The interests of a person in the ISP do not rise to the level of “constitutionally-cognized liberty interests.” Moore v. State, 830 So.2d 1274, 1276(¶ 11) (Miss.Ct.App.2002); Lewis v. State, 761 So.2d 922, 923(¶ 3) (Miss.Ct.App.2000). Also, under Mississippi Code Annotated section 11-43-9 (Rev.2002), a petition for writ of habeas corpus should be filed in the county where the inmate is detained.

¶ 16. The Court, therefore, concludes that there were ample reasons for finding that the court lacked jurisdiction to hear Moore’s petition.

Whether Moore’s habeas petition should have been treated as a post-conviction petition

¶ 17. Moore contends that the circuit court erred in ruling that it lacked jurisdiction because his petition was one for post-conviction relief and should have been filed in the county of conviction. As previously discussed, Moore could not have been given any relief regardless of what the petition was called or how it was considered.

¶ 18. As an appeal from the MDOC’s Administrative Remedy Program, the appeal was not timely, having been filed more than thirty days after the receipt of the recommendation. As a petition for writ of habeas corpus, the petition did not meet the criteria for relief and was not filed in the county where Moore was held, as required by statute. As a petition for post-conviction relief, the petition was also not filed in the proper county and would be successive, as found by the Lee County Circuit Court and affirmed by this Court. See Moore v. State, 897 So.2d 997 (Miss.Ct. App.2004). The petition would also be time-barred and well beyond the three-year statute of limitations. See Miss.Code Ann. § 99-39-5(2) (Supp.2005).

¶ 19. As argued by the State, if the judgment of the circuit court can be sustained for any reason, it must be affirmed even though the trial court judge based the decision on the wrong legal reason. Patel v. Telerent, 574 So.2d 3, 6 (Miss.1990); Stanley, 846 So.2d at 282(¶ 12); Booker v. State, 745 So.2d 850(¶ 18) (Miss.Ct.App.1998). Even if the issues involved do not fall under the post-conviction relief statutes, there were ample reasons for the court to deny relief. We find no merit to the petitioner’s argument.

Whether the circuit court erred in ordering forfeiture of Moore’s earned time

¶ 20. Moore argues that the circuit court erred in holding that his petition was without merit and frivolous and that he should forfeit earned time pursuant to Mississippi Code Annotated section 47-5-138.

¶21. Moore’s claims arise from the revocation of his house arrest in December 1998. The present petition was filed in July 2004. This Court addressed Moore’s attempts at post-conviction review of his removal from house arrest in Moore v. State, 897 So.2d 997 (Miss.Ct.App.2005). These issues were also raised in the MDOC’s Administrative Remedy Program. In numerous decisions, this Court has addressed the proper procedure for removal from house arrest. See, e.g., Moore v. State, 830 So.2d 1274 (Miss.Ct.App.2002); Lewis v. State, 761 So.2d 922 (Miss.Ct.App. 2000).

¶ 22. The circuit court clearly did not err in applying the earned time forfeiture statute in this case.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO RANKIN COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., BRIDGES, IRVING, CHANDLER, GRIFFIS AND ISHEE, JJ., CONCUR.


author: MYERS, P.J.,

text:
    Kevin Michael SUBER, Appellant v. Kathleen Anne SUBER, Appellee.
    No. 2004-CA-02451-COA.
    Court of Appeals of Mississippi.
    March 21, 2006.
    Rehearing Denied Aug. 22, 2006.

      William W. Dreher, Gulfport, attorney for appellant.

      Walter Wesley Teel, attorney for appel-lee.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. After both parties stipulated to a divorce based upon irreconcilable differences, the Harrison County Chancery Court First Judicial District granted Kathleen Súber sole legal and physical custody of her two adopted children on November 5, 2004. Kevin Súber appeals to this Court the chancellor’s ruling which denied him any contact with his adopted children, and the ruling which ordered him to pay monthly child support. Aggrieved by the order of the chancery court, Kevin appeals raising the following four issues:

I. WHETHER THE COURT COMMITTED MANIFEST ERROR AND ABUSED ITS DISCRETION IN REQUIRING KEVIN SUBER TO PAY AN EXCESSIVE AMOUNT IN CHILD SUPPORT WITHOUT ANY SUPPORTING EVIDENCE OF HIS ABILITY TO PAY.
II. WHETHER THE COURT ABUSED ITS DISCRETION AND WAS MANIFESTLY IN ERROR IN IGNORING THE FINDINGS OF THE GUARDIAN AD LITEM AND ESSENTIALLY TERMINATING KEVIN SUBER’S PARENTAL RIGHTS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.
III. WHETHER THE COURT ERRED AS A MATTER OF LAW IN ALLOWING KATHLEEN SUBER TO INVOKE A MEDICAL PRIVILEGE IN A CASE INVOLVING CHILD CUSTODY.
IV. WHETHER THE CHANCELLOR ERRED AS A MATTER OF LAW IN ALLOWING INTO EVIDENCE A CERTAIN DOCUMENT WITHOUT THE ASSISTANCE OF AN EXPERT WITNESS.

¶ 2. Finding no error, we affirm the chancery court’s ruling.

FACTS

¶ 3. Kathleen and Kevin married in New York in 1989, and lived in California prior to moving to Mississippi. While in California they adopted a baby girl born January 22, 1993. After moving to Mississippi, they adopted a baby boy born on September 7, 1995. Kevin filed for divorce on July 8, 2002, in the Chancery Court of Harrison County, First Judicial District on the grounds of habitual cruel and inhuman treatment and adultery or, in the alternative, irreconcilable differences. Kathleen counter filed and asked for sole custody of the minor children. The court appointed a guardian ad litem for the children, Michael Hill. Hill reported that the children told him that Kevin had molested them; however, there was no physical evidence. Hill recommended that in the best interest of the children, Kathleen should have sole custody of the children and all contact between Kevin and the children should be stopped. The chancery court entered an order on October 17, 2003, suspending all visitation and contact of Kevin with the two minor children except by telephone. After this order was entered, Kevin continued to daily send postcards and letters to the children in violation of the court order. Some postcards were pictures of their biological families which had a detrimental effect on the children’s emotions. Other postcards were about Kevin’s acting and the glamorous life he was leading in California.

¶ 4. The parties agreed to a divorce on irreconcilable differences and stipulated for the court to decide on the matters relating to child support, custody and visitation. The case went to trial in Harrison County Chancery Court on November 4, 2005. For two days, the chancellor heard testimony from numerous people including Kathleen, Kevin, and the two minor children. Both children testified to having been sexually abused by Kevin. Other witnesses testified to Kathleen being a good mother. No witness’s testimony improved the view of Kevin’s character. Testimony reflected that Kevin was not providing for his family, eating all the food in the house, eating his children’s lunches on their way to school, placing them in the bath before testing the water temperature which was scalding and whipping the son with an electrical .wire. Even Kevin’s own testimony had a detrimental effect to his case. He admitted to not giving all his financial records to the court and to not abiding by the court’s order regarding contacting his children.

¶ 5. On November 5, 2004, the chancellor did an analysis of the Albright factors and granted Kathleen sole legal and physical custody of the two minor children and prohibited Kevin from having any contact with his children. The court also ordered Kevin to pay child support for $250 a month for thirty days, then $300 per month for sixty days, then $350 per month until the end of six months and then start paying $500 every month. The court also ordered Kevin to pay back child support and Kathleen’s attorney’s fees.

I. WHETHER THE COURT COMMITTED MANIFEST ERROR AND ABUSED ITS DISCRETION IN REQUIRING KEVIN SUBER TO PAY AN EXCESSIVE AMOUNT IN CHILD SUPPORT WITHOUT ANY SUPPORTING EVIDENCE OF HIS ABILITY TO PAY.

¶ 6. The chancellor ordered Kevin to pay Kathleen child support in the amount of $250 per month for the first month, $300 for two months, then $350 per month until the end of six months, and then start paying $500 every month. Kevin argues that the chancellor did not follow the child support guidelines as set forth in the Mississippi Code, and therefore committed manifest error. It is within the chancellor’s discretion to award child support, and this Court will not reverse that award unless the chancellor was manifestly wrong in the findings of fact or manifestly abused his discretion. Chesney v. Chesney, 910 So.2d 1057, 1060(¶ 5) (Miss.2005). The chancellor’s awarding of child support is actually an exercise of fact finding; therefore, this Court’s review is significantly restrained. Clausel v. Clausel, 714 So.2d 265, 267(¶ 6) (Miss.1998).

¶ 7. The guidelines of awarding child support are set out in § 43-19-103 of the Mississippi Code Annotated. The guidelines for two children is twenty percent of the adjusted gross income; however, if the income is more than $50,000 the court shall make a written finding in the record as to whether this amount is reasonable. Miss. Code Ann. § 43-19-101 (Rev.2004).

¶ 8. Kevin argues that $500 per month in child support is much more than twenty percent of his adjusted gross income. However, Kevin did not produce the needed financial records to determine his adjusted gross income. At trial, Kevin only produced two pay stubs and admitted to having others at home in California. It is wrong for the parents to hide income or to evade a complete assessment of income when child support is being considered. Stroud v. Stroud, 758 So.2d 502, 504(¶ 7) (Miss.Ct.App.2000). Where the chancellor is not convinced of honesty and openness of the parent, this may be a determining factor for proper consideration of the amount to award. Dunn v. Dunn, 695 So.2d 1152, 1157 (Miss.1997). Therefore, the statutory guidelines may be varied upon proper finding of the court. Id. Kevin testified to having a college education and being qualified in numerous fields related to the financial world. Kevin also claims to be an accomplished actor; therefore, the chancellor had evidence that he is able to contribute. The chancellor can base child support on the parent’s potential earning capacity. White v. White, 722 So.2d 731, 734(¶ 21) (Miss.Ct.App.1998). Therefore, we find that this issue is without merit.

II. WHETHER THE COURT ABUSED ITS DISCRETION AND WAS MANIFESTLY IN ERROR IN IGNORING THE FINDINGS OF THE GUARDIAN AD LITEM AND ESSENTIALLY TERMINATING KEVIN SUBER’S PARENTAL RIGHTS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 9. Kevin argues that the chancellor erroneously disregarded the recommendations of the guardian ad litem and terminated his parental rights. However, Kevin is mistaken because the chancellor followed the recommendation of the guardian ad litem in determining which parent was to retain custody of these two minor children. This Court’s standard of review in domestic relations cases is established and clear. Child custody matters fall within the sound discretion of the chancellor. Sturgis v. Sturgis, 792 So.2d 1020, 1023(¶ 12) (Miss.Ct.App.2001). Therefore, a chancellor’s ruling will not be disturbed by this Court unless we find the trial court was manifestly wrong, clearly erroneous, or applied an erroneous legal standard. Cooper v. Ingram, 814 So.2d 166, 167(¶ 2) (Miss.Ct.App.2002).

¶ 10. The report of the guardian ad litem stated that the evidence is conflicting in this case. There is no physical evidence as to the physical abuse of the children; however, the abuse is the most important factor. If the abuse did occur then visitation would put the children in jeopardy, and if the molestation did not occur, forcing the children into visitation would be just as harmful because they believe the molestation occurred. Kevin requested an evaluation to determine if Kathleen has had a hand in alienating his children from him. The guardian ad litem stated that even if this is true, with him residing in California and Kevin and Kathleen’s current financial situation, any type of treatment is not possible. The guardian ad litem went further to recommend that a change in custody could not be allowed without this type of treatment. The guardian ad litem stated that visitation would have the same effect on the children as a change in custody. Since the children are convinced the alleged abuse occurred, regardless if it is true or not, that belief is there which bars visitation and a change of custody.

¶ 11. The only way the chancellor deviated from the guardian ad litem’s report was by ordering Kevin to pay child support, which the report stated was unfair. This deviation has nothing to do with child custody or parental rights; and furthermore, the Mississippi Supreme Court has stated that the father’s duty to support his children is absolute. Pearson v. Hatcher, 279 So.2d 654, 656 (Miss.1973).

¶ 12. As to extinguishing parental rights, the court made no such ruling. The termination of child custody and visitation does not terminate parental rights by itself. In re T.A.P., 742 So.2d 1095, 1104(¶ 41) (Miss.1999). No one in this case filed a petition to terminate Kevin’s parental rights.

III. WHETHER THE COURT ERRED AS A MATTER OF LAW IN ALLOWING KATHLEEN SUBER TO INVOKE A MEDICAL PRIVILEGE IN A CASE INVOLVING CHILD CUSTODY.

¶ 13. Kevin argues that Reverend Blair Bradley should have been allowed to testify to Kathleen’s mental state, since he has counseled both Kevin and Kathleen in the past, under the M.R.E. 503(d)(4), exception to the medical privilege. The standard of review for both the admission or exclusion of evidence is abuse of discretion. Harrison v. McMillan, 828 So.2d 756, 765(¶ 27) (Miss.2002). Even if this Court finds an erroneous admission or exclusion of evidence, we will not reverse unless the error adversely affects a substantial right of a party. Gibson v. Wright, 870 So.2d 1250, 1258(¶28) (Miss. Ct.App.2004).

¶ 14. Mississippi Rules of Evidence 503(d)(4), allows medical testimony in when it is relevant to child custody. However, this rule only pertains to physicians and psychotherapist, and Bradley is neither authorized to practice medicine nor licensed or certified as a psychologist. This privilege would fall under M.R.E. 505, the priest penitent privilege, which states that a person has a privilege to refuse to discuss and to prevent others from disclosing confidential communications with a clergyman and does not contain the same exception as M.R.E. 503. This is certainly the case here. Kathleen objected to Bradley disclosing her confidential communications with him since he was her preacher. Therefore, this issue has no merit.

IV. WHETHER THE CHANCELLOR ERRED AS A MATTER OF LAW IN ALLOWING INTO EVIDENCE A CERTAIN DOCUMENT WITHOUT THE ASSISTANCE OF AN EXPERT WITNESS.

¶ 15. Kevin kept a journal for the class which he attended for children of alcoholics. He argues that it was error for the chancellor to allow Kathleen to introduce this journal into evidence without expert testimony in violation of M.R.E. 702. The standard of review for both the admission or exclusion of evidence is abuse of discretion. Harrison v. McMillan, 828 So.2d 756, 765(¶ 27) (Miss.2002).

¶ 16. In this journal Kevin discusses his past sexual problems. Mississippi Rules of Evidence 401 defines relevant evidence as evidence which makes the determination of the action more probable or less probable than without the evidence. If the evidence has any probative value, the rule favors admission. Williams v. State, 543 So.2d 665, 667 (Miss.1989). This journal discussed Kevin’s sexual history which was relevant in the present case. Once the relevancy is established then the evidence must be authenticated. Wilson v. State, 775 So.2d 735, 740(¶ 11) (Miss.Ct.App. 2000). Since Kevin admitting that the journal belonged to him containing his own handwriting, this satisfies the authentication requirement of M.R.E. 901. Admission of evidence under M.R.E. 401, once authenticated in accordance with M.R.E. 901, is left to the discretion of the trial court. Id. at 739(¶ 12). The chancellor did not abuse his discretion by not requiring an expert to testify in order to admit this journal into evidence; lay witness authentication was sufficient. We, therefore, find this issue meritless.

¶ 17. THE JUDGMENT OF THE HARRISON COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.

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