author: IRVING, J.;

text:
    James GUY a/k/a James Earl Guy, Appellant v. Alicia BOX, et al., Appellees.
    No. 2005-CP-00279-COA.
    Court of Appeals of Mississippi.
    March 28, 2006.
    James Guy, Appellant, pro se.
    Office of the Attorney General by Jane L. Mapp, attorney for Appellees.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   IRVING, J.;

for the Court.

¶ 1. James Guy filed this appeal from the Greene County Circuit Court’s dismissal of his claim against the Mississippi Department of Correction’s (MDOC) calculation of his time to serve. We find that this appeal is moot, since we have already ruled on Guy’s claim in a separate case, Guy v. State, 915 So.2d 508 (Miss.Ct.App.2005).

¶ 2. In that case, the lower court dismissed Guy’s claim because it found that Guy had filed his claim in the wrong county. Id. at 510(¶ 4). Therefore, the court did not rule on the merits of Guy’s claim. We ruled that the trial court had improperly construed Guy’s claim as a motion for post-conviction relief, which it was not. Id. at 510 (¶¶ 5-6). However, based on the record before us at that time, we also found that Guy had failed to exhaust his internal remedies at the MDOC and, therefore, could not request judicial review of his claim. Id. at 510(¶ 7). Consequently, we stayed proceedings in the circuit court for ninety days to give Guy time to exhaust his remedies. Id. at 510(¶ 8).

¶ 3. Presumably, once Guy provides evidence to the court that he has exhausted his remedies, the court will rule on the merits of his claim and he will then be able to appeal that decision to this Court, assuming the circuit court finds his claim to be without merit. Therefore, in order to avoid multiple rulings on Guy’s claim, we dismiss this appeal as moot. When and if Guy receives the decision of the lower court, he may appeal that decision to this Court.

¶ 4. Additionally, we note that, although we do not think that we can procedurally rule on the merits at this point in time, it appears from the record and facts before us that Guy’s claim is without merit. Guy was sentenced on February 6,1996, to thirty-seven years for armed robbery. Guy’s claim is that MDOC has improperly calculated the fifty percent earned time credit on his sentence. Specifically, Guy argues that he is entitled to a fifty percent reduction of his entire sentence, meaning that he should have to serve only eighteen- and-one-half years. MDOC, by contrast, has given Guy thirteen-and-one-half years earned time, a figure MDOC reached by subtracting the ten mandatory years from Guy’s sentence, and then halving the remaining twenty-seven years. Guy contends that this calculation is incorrect, because the mandatory ten years only needs to be served as the first ten of the eighteen-and-one-half years.

¶ 5. Mississippi case and statutory law clearly establishes that earned time only begins to accumulate after an inmate has served the mandatory portion of his sentence. Mississippi Code Annotated section 47 — 5—139(l)(e), as amended, states: “An inmate shall not be eligible for the earned time allowance if ... [t]he inmate has not served the mandatory time required for parole eligibility for a conviction of robbery or attempted robbery with a deadly weapon.” Since Guy was convicted of robbery, his earned time does not begin to accrue until after he has served his mandatory ten years. Additionally, the Mississippi Supreme Court ruled in Williams v. Puckett, 624 So.2d 496, 500 (Miss.1993), decided one year before Guy’s sentencing, that an inmate was not entitled to receive earned time until he had served the mandatory portion of his sentence, in accordance with Mississippi Code Annotated section 47 — 5—139(l)(e). See also Adams v. Epps, 900 So.2d 1210, 1212(¶ 10) (Miss.Ct. App.2005); Boler v. Bailey, 840 So.2d 734, 735 (¶¶ 5-6) (Miss.Ct.App.2003). Therefore, MDOC has correctly calculated Guy’s earned time.

¶ 6. Guy also claims that MDOC gave him a sentence computation sheet showing that he should receive eighteen-and-one-half years earned time. However, no relief can flow to Guy as a result of this incorrectly calculated sheet. We note that Guy’s situation is nearly identical to that of the inmate in Doctor v. State, 522 So.2d 229 (Miss.1988), who claimed that an incorrect sentence computation was binding, and required that he either be given the earned time or allowed to stand trial again. Id. at 230. The Mississippi Supreme Court held that the trial court was correct when it found that “at most, Doctor was mistakenly advised of eligibility for good time by officials.... ” Id. In the present case, Guy is not entitled to receive eighteen-and-one-half years earned time, and any calculation that MDOC mistakenly gave Guy does not change that fact. As we recently held, “[a]n MDOC employee’s clerical mistake or oversight does not actually confer eligibility for earned time allowances.” Adams, 900 So.2d at 1212-13(¶ 10). Therefore, the incorrect sentence computation given to Guy does not operate to increase his earned time, which has been properly calculated by MDOC as thirteen-and-one-half years.

¶ 7. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO GREENE COUNTY.

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

      . Guy was later able to provide evidence that he had properly exhausted his MDOC remedies, a point that the State in the present case concedes. The circuit court in the present action improperly ruled that Guy had failed to seek judicial review within thirty days, a point that the State also concedes.

      . Guy attempts to distinguish his case from Williams, by virtue of the fact that he participated in work programs during the first ten years of his sentence,-and on the basis of the sentencing language in Williams. We can find no reason why either of these would operate to distinguish the present case from Williams. Guy was clearly convicted of armed robbery and sentenced to thirty-seven years, with ten years of that time mandatory.

      . Guy mentions his computation sheet in the context of Senate Bill 2030. We assume that he is referring to Senate Bill 2030 of the 2001 regular session. That bill, which dealt with mandatory punishments for certain crimes, went into effect only in 2001. Since Guy was sentenced in 1996, the bill does not apply to him. According to the law as it was when Guy received his sentence, MDOC's calculation of his earned time is correct.


source: Caselaw Access Project

author: IRVING, J„

license: Public Domain

text:
    JOHN MOZINGO REAL ESTATE & AUCTION INC., Appellant/Cross-Appellee v. NATIONAL AUCTION GROUP INC., Eddie Haynes and James C. Jenkins, Appellees/Cross-Appellants.
    No. 2004-CA-01682-COA.
    Court of Appeals of Mississippi.
    March 28, 2006.

      Charles Edward Allen, Picayune, attorney for appellant.
    John Paul Barber, William V. West-brook, Gulfport, attorneys for appellees.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   IRVING, J„

for the Court.

¶ 1. John Mozingo Real Estate & Auction, Inc. (Mozingo) sued National Auction Group, Inc. (NAG), alleging intentional interference with either an existing or prospective contract. The court granted NAG’s motion for summary judgment. Aggrieved, Mozingo appeals and asserts that the court erred in (1) granting summary judgment and issuing “Findings of Fact and Conclusions of Law;” (2) striking the affidavits of John Mozingo (Mr. Mozin-go), T.J. Wills, and Charles Allen; and (3) exhibiting bias in favor of NAG. Mozingo also requests that we not only reverse and remand, but also order transfer of the case to a different circuit court judge “who has no ties of friendship or professional association with the attorneys and judges implicated as engaging in the tortious acts upon which the Complaint is based.”

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On November 5, 1998, a partition proceeding was begun in a Harrison County Chancery Court. The partition sought to divide a large piece of property in Biloxi, which was owned by twenty-five different individuals. The owners eventually contracted with NAG to sell the property at a public auction. On June 3, 2000, the property was auctioned and sold for around $5.7 million. Thereafter, stipulations agreeing to the terms of the auction and sale were signed by each of the twenty-five owners of the property. On August 10, 2000, final judgment was entered in the partition action approving the auction and sale of the property.

¶ 4. Mozingo claims that it had an oral contract with one of the owners, John Mil-ner, to auction the property. Mozingo claims that it had worked toward the auction for five years prior to the auction by NAG. Mozingo theorizes that Milner chose to give the contract to NAG because Moz-ingo refused to conduct the auction as ah absolute auction. Mozingo also strenuously contends that the way the auction was conducted by NAG was illegal and unethical, and has filed several administrative actions against NAG as a result. All of these complaints have been dismissed by the agencies and organizations with which they were filed. On April 2, 2002, Mozingo filed a complaint against NAG, asserting that NAG had interfered with its contractual rights. The primary thrust of Mozin-go’s complaint is that NAG, lawyers, and judges conspired to steal Mozingo’s contract to auction the property.

¶ 5. Mozingo’s initial request for discovery went unanswered, and a motion to compel discovery was filed. NAG’s attorney at the time of the request eventually withdrew and was replaced by NAG’s current counsel. When it came to the attention of the current counsel that the discovery requests had not been answered, discovery responses were filed. This filing occurred very shortly before the hearing on the summary judgment motion. In the discovery, NAG simply refused to answer many of the questions, asserting that “[t]he present action is an impermissible collateral attack on the final orders of the chancery court approving the auction sale.... [N]or is the information sought by this interrogatory calculated to lead to the discovery of admissible evidence.” No further motion to compel or expand on the discovery was filed by Mozingo, although its attorney complained about the quality of the discovery during the summary judgment hearing.

¶ 6. In order to meet its burden for summary judgment, NAG attached numerous documents to its motion for summary judgment (all of which were provided to Mozingo as part of discovery). Mozingo filed three affidavits in support of its claim, and very little else in the form of evidence. After the hearing, NAG filed a motion to strike the affidavits, which the court granted. The summary judgment hearing was held on August 11, 2003. On September 29, 2003, the court entered findings of fact and conclusions of law granting summary judgment to NAG. A final judgment dismissing Mozingo’s claims was entered on October 2, 2003.

¶7. After final judgment was entered, Mozingo filed a series of pleadings, including a motion requesting that the court reconsider its judgment. On October 30, 2003, NAG filed a cross-motion for sanctions against Mozingo and its attorney. On August 2, 2004, the court held a hearing on all the outstanding motions. The same day, the court entered an order affirming summary judgment. An order denying sanctions and all other pending motions was entered on August 10, 2004. Mozingo then gave its notice of appeal, and NAG responded with notice of its cross-appeal.

ANALYSIS AND DISCUSSION OF THE ISSUES

(1) Propriety of Summary Judgment and Conclusions and Findings

¶ 8. When reviewing a grant of summary judgment, our standard of review is de novo. McMillan v. Rodriguez, 823 So.2d 1173, 1176-77(¶ 9) (Miss.2002). We will construe the record in the light most favorable to Mozingo, since summary judgment was entered against it. Id. We affirm summary judgment only where the non-moving party is unable to present any genuine issue of material fact. Id. The burden is on NAG to show that there is no genuine issue of material fact. Id.

¶ 9. Despite the heavy burden that a party moving for summary judgment faces, we find that NAG met that burden in this case. Mozingo argues that summary judgment was improper because the court incorrectly stated multiple facts in its findings. We are unswayed by this argument, since none of the facts complained of by Mozingo bear any relevance to its tort claims. Mozingo also contends that the court applied incorrect legal standards in its conclusions of law. Mozingo specifically alleges that the trial court did not adequately address whether there was a genuine issue of material fact when it dismissed Mozingo’s claims.

¶ 10. We find that the court made adequate findings that there was no genuine issue of material fact sufficient to support a denial of summary judgment. The judge specifically detailed a series of facts that he considered to be undisputed, including (1) that there was no signed auction contract between Mozingo and the owners, that the order authorizing the sale for the partition action had already become final, and that Mr. Mozingo had sent a letter to the National Auctioneers Association (NAA) wherein he admitted that “he had never been hired by the seller and did not bring or register any client as a purchaser at the auction sale.” The court also pointed out that Mozingo had offered no evidence whatsoever concerning how NAG had interfered with its alleged contract with the property owners.

¶ 11. As correctly noted by the court, NAG supported its summary judgment motion by submitting “numerous eviden-tiary exhibits and pertinent excerpts from the record in the Partition Action.” By contrast, the court found that Mozingo had “responded with conclusory affidavits which the court has stricken because the representations made therein conflict with prior representations to the court....”

¶ 12. We note that the court created confusion by spending a significant amount of time delving into the irrelevant issue of whether res judicata or collateral estoppel would bar Mozingo from attacking the partition action. Mozingo’s claims before the court involved only torts for intentional interference; the lengthy discussion of the partition order and the various administrative decisions bore no relevance to those claims whatsoever. However, we find that the court still presented adequate findings and conclusions to support its decision that Mozingo had not shown any issue of material fact concerning its tort claims. Other than a few self-serving affidavits which were ultimately stricken by the court, Mozingo presented nothing but conjecture to support its tort claims. Various theories were espoused, both below and in Mozingo’s appeal briefs, but no evidence has been presented to support any of these claims.

¶ 13. Even the most basic of facts that Mozingo alleges is unsupported by the record. For example, Mozingo claims that it “and [its] staff dedicated a tremendous amount of time and money to prepare for the auction.... Among other things, Mr. Mozingo twice leased a helicopter to take aerial photographs of the property.” Both of these claims should be easy to prove by presenting the affidavit or testimony of one of the “staff’ who worked on the auction, but no such employee was ever presented on the record. No receipt was provided by Mozingo showing that it had paid for the use of a helicopter once, let alone twice. Not a single record was produced showing any contact between Mil-ner and Mozingo during the five years it claimed it worked on preparing for the auction of the property and “advised Mr. Milner in person and by telephone of the work ... several times almost every week.”

¶ 14. The basis of Mozingo’s intentional interference claims is that Faye Craven, who worked for NAG in some capacity, learned of the auction from Mr. Mozingo and informed NAG that it should “steal” the auction. There is no evidence presented that any of the conversations Mozingo alleges happened actually took place. Nothing but conjecture is offered to substantiate this link between its alleged contract and NAG. As an example of the fantastic nature of many of Mozingo’s statements, it claims in its brief that Mr. Mozingo and his attorney “met with [a Special FBI Agent] at the FBI office in Gulfport. Mr. Meadows’s and other individuals’ names were raised.... Counsel, in the spirit of full disclosure, revealed this meeting to the lower court during the hearing on the Motion for Summary Judgment.” In a footnote, Mozingo claims that this disclosure “was made in open court on the record and should appear in the Transcript at T 27-28, but for reasons unknown to counsel the disclosure does not appear in the official transcript. This omission raises grave issues.” Mozingo further claims that Milner and his attorney entered into “secret negotiations with NAG” and “explained [that] a verbal contract had already been formed with the Appellant, and the Appellant had worked five years preparing for the auction.... [NAG] agreed simply to ignore the Appellant’s contract (or prospective contractual relationship), and developed plans to avoid the ramifications of conducting an absolute auction.... ”

¶ 15. In addition, we note that, as acknowledged in its brief, Mozingo would have a very difficult time proving interference with an existing contract. Simply put, there is virtually no evidence that. Mozingo had a contract with Milner. The only evidence to the contrary is its own assertions, which contradict Mr. Mozingo’s previous statements to the NAA. In his letter to the NAA, Mr. Mozingo stated that he was aware that he had no contract with Milner, and had never had a contract because whenever he pressed Milner for a contract, Milner refused: “I attempted several times to get [Milner] to sign a contract, but as many times as I tried, he explained that there were approximately twenty-five heirs to deal with, and that his signature would not carry any weight and that it would take court action to get all of the heirs to agree on the sale.” Mr. Mozin-go stated in the same letter that he “inquired of [Milner] what I had done wrong and why they had selected an auction company who had never before conducted even one auction in our area....” These statements indicate that Mr. Mozingo and his company clearly understood that they had no contract with Milner, because Milner had refused to enter into a contract with them.

¶ 16. Therefore, the only claim that Mozingo can rely on is that of intentional interference with a prospective contract, which it admits is the same as interference with business relations. However, Mozingo still has not provided any evidence sufficient to establish a genuine issue of material fact regarding this claim. No actual evidence whatsoever was presented by Mozingo showing that NAG interfered with its business relations with Milner and the other owners, or even showing that NAG knew about Mozingo’s alleged discussions with Milner.

¶ 17. In short, the grant of summary judgment was proper. No genuine issue of material fact was raised by the evidence produced by Mozingo.

[2] Sinking of the Affidavits

¶ 18. In its second point of error, Mozingo claims that the court erred in striking the affidavits presented by Mr. Mozingo, Allen, and Wills. In its order striking the affidavits, the court stated that it was doing so because the affidavits “flatly and materially contradict the records and prior related proceedings.” Mississippi courts have indicated that a motion for summary judgment cannot be defeated “by submitting an affidavit which directly contradicts, without explanation, his previous testimony.” Foldes v. Hancock Bank, 554 So.2d 319, 321 (Miss.1989) (citing Ken-nett-Murray Corp. v. Bone, 622 F.2d 887, 894 (5th Cir.1980)).

¶ 19. In striking Mozingo’s affidavit, the court stated that “Mr. Mozingo is judicially estopped from taking a position in the present litigation which is directly contradicted by his prior written and testimonial submissions to the NAA, and the actual content of the court record in the Partition Action.” Mozingo contends that the affidavit was not properly stricken under the reasoning of Foldes because the prior inconsistent statement was not given “in the depositions and Interrogations [sic] submitted in the same case.” However, after examining Foldes, we can find no requirement that the “testimony” referred to be limited to depositions and other documents from the same proceeding. Mozin-go then retreats and argues that “[a]t most, any prior inconsistent statements must be found in litigation. Mr. Mozingo was not in litigation before the Association.”

¶ 20. The letter wherein Mr. Mozingo stated that he had no contract with Milner or the other owners was a letter written by him that was intended to support an administrative complaint against NAG. No assertion has been offered by Mozingo to show that the letter was not written by Mr. Mozingo, or was not written with the intent of pursuing an administrative action against NAG. Instead, Mr. Mozingo’s statements to the NAA are explained by using the following example: “Counsel’s Mother gave him a gold pocket watch when he was twenty years old, yet it was stolen when he was twenty-two years old. Counsel can say he had no gold pocket watch when he was twenty-five years old, and not contradict the fact [that] he had one when he was twenty. Matters must be taken in context. The Appellant’s contract had been stolen by the Appellees so his statement was not contradictory.” This example might be relevant, except for the fact that the letter clearly indicated that Mozingo had never had a contract with the owners of the property, because Milner had told Mozingo that he did not have the authority to contract on behalf of the other owners.

¶ 21. Although we are not certain that the court pursued the proper remedy in striking Mr. Mozingo’s affidavit, we find that the affidavit could not have been considered in denying the motion for summary judgment, and therefore, the striking of the affidavit is moot. Mississippi case law is clear that summary judgment cannot be defeated by an affidavit that is in contradiction with the previous sworn statements of a party. Even if his letter to the NAA cannot be considered sufficient to require the striking of his affidavit, Mr. Mozingo’s sworn and recorded statements to the NAA are sufficient to disqualify his affidavit, especially when taken in context with the letter written to the NAA. In his testimony before the NAA, Mr. Mozingo, when discussing his lack of protest at the actual auction of the property (which he attended with his son), stated that “[w]e had not been hired by the seller.” In other words, Mr. Mozingo admitted that he and his company had no contract with the owners of the property. Mr. Mozingo also stated that he had “competed for this sale” and lost to NAG, who was conducting the auction. Therefore, the affidavit submitted to the court contradicted Mr. Moz-ingo’s own statements to the NAA at his grievance hearing, and therefore could not be sufficient to defeat a motion for summary judgment. Even if the judge was in error for striking the entire affidavit, he could not have found that the motion for summary judgment could be overcome by the affidavit, and therefore, any error caused by the striking of the affidavit was harmless.

¶ 22. Mozingo argues that Wills’s affidavit was also stricken improperly simply because Wills “was not a party in the instant case.” Mozingo claims that Wills only signed the stipulation approving the sale by NAG because “Mr. Meadows told Mr. Wills he would be sued if he did not sign the stipulation, the substance of which was not even clear to Mr. Wills.” Mozingo presents no evidence whatsoever for this claim, and Wills’s affidavit makes no mention of any coercion on the part of Meadows. Therefore, Wills’s affidavit was directly contradicted by his previous sworn stipulation agreeing to the sale of the property, and was properly disregarded by the court. As with Mr. Mozingo’s affidavit, regardless of whether the court should have stricken the affidavit in its entirety, the self-serving and contradictory nature of the affidavit entitled the court to disregard it when granting summary judgment. Therefore, any error in striking the affidavit was harmless.

¶ 23. Mozingo also claims that the court erred in striking the affidavit of Charles Alen, its attorney. The basis for Mozingo’s claim appears to be that it was unhappy with the discovery provided by NAG. Alen’s affidavit was submitted as part of a Rule 56(f) motion. Rule 56(f) of the Mississippi Rules of Civil Procedure states:

Should it appear from the affidavits of a party opposing the [summary judgment] motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such order as is just.

Allen filed his affidavit because, at that time, no discovery answers had been provided to Mozingo. Within days after the filing of the affidavit, discovery responses were filed by NAG.

¶24. Allen’s affidavit stated that his client had “received no response” to discovery requests and pointed out that there was “currently a Motion to Compel Discovery pending before this Court.” As with the affidavits of Mr. Mozingo and Wills, we are not convinced that the court was correct in striking the affidavit in its entirety. However, since the affidavit was filed to address the lack of discovery provided by NAG, and NAG thereafter produced discovery, the affidavit became moot and irrelevant. Only harmless error could result from the striking of the affidavit after discovery was provided by the defendants. After NAG filed discovery responses, the ball was in Mozingo’s court to compel further discovery or supplementary answers to the discovery. No such motion appears in the record, nor does Mozingo maintain that one was made. The original motion to compel discovery was answered when NAG filed its discovery responses. If Mozingo was unhappy with those responses, additional motions to compel or supplement had to be filed in order for error to arise from the quality of the discovery.

(3) Bias on the Part of Judge Terry

¶25. In its final point of error, Mozingo claims that the decision of the court must be reversed because of bias on the part of Circuit Court Judge Jerry 0. Terry, who oversaw the proceedings. This claim of error appears to rest on the assertions of Mozingo and its counsel that Judge Terry was somehow involved in a scheme with the defendants to cheat Moz-ingo out of the contract to auction the property. The best argument Mozingo provides is that “the court” requested that NAG’s attorneys draft and submit findings of fact and conclusions of law without asking Mozingo’s attorney to do the same. No evidence is offered that Judge Terry himself requested that the defendants draft the document, only that “the court” had contacted the defendants. We find that this ex parte contact was potentially unethical. A draft should have been requested of both parties, and both parties should have been made aware that there had been a request for such a draft. However, the ex parte contact does not rise to the level of reversible error, and does not require reversal of the court’s summary judgment determination. We also note that no motion requesting recusal was ever filed by Mozingo.

¶ 26. Mozingo’s final point of error is ' rejected. Since we find no reversible error in the grant of summary judgment, we do not, as requested by Mozingo, reverse and remand to a different court.

Cross-Appeal

¶ 27. In its cross-appeal, NAG argues that the circuit court abused its discretion by not awarding it sanctions against Mozingo. According to NAG, “Mozingo’s own written and testimonial admissions that his company ‘had no contract’ establish that the present action as well as Mozingo’s administrative complaints were filed for improper purposes, namely to harass and subject Mozingo’s legitimate business competitors and the competitors’s representatives to unnecessary burden and expense.” Consequently, NAG maintains that the court should have awarded it attorney’s fees and costs under Mississippi Code Annotated section 11-55-5(1) (Rev.2002).

¶ 28. Section 11-55-5(1) states:

Except as otherwise provided in this chapter, in any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment and in addition to any costs otherwise assessed, reasonable attorney’s fees and costs against any party or attorney if the court, upon the motion of any party or on its own motion, finds that an attorney or party brought an action, or asserted any claim or defense, that is without substantial justification, or that the action, or any claim or defense asserted, was interposed for delay or harassment, or it finds that an attorney or party unnecessarily expanded the proceedings by other improper conduct including, but not limited to, abuse of discovery procedures available under the Mississippi Rules of Civil Procedure.

An action, claim, defense, or appeal is without substantial justification if “it is frivolous, groundless in fact or law, or vexatious, as determined by the court.” Miss.Code Ann. § ll-55-3(a) (Rev.2002).

¶ 29. “We review the grant or denial of attorney’s fees under an abuse of discretion standard.” In re L.D.M., 872 So.2d 655, 657(¶ 7) (Miss.2004). “In the absence of a ‘definite and firm commitment that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors,’ the judgment of the court’s imposition of sanctions will be affirmed.” Wyssbrod v. Wittjen, 798 So.2d 352, 357(¶ 17) (Miss. 2001). “Likewise, a trial court decision to award attorney’s fees pursuant to the Litigation Accountability Act [§ 11-55-5(1) ] is subject to the abuse of discretion standard of review.” Id. (citing Terex Corp. v. In-galls Shipbuilding, Inc., 671 So.2d 1316, 1324 (Miss.1996)).

¶ 30. Although we find that the trial court properly granted summary judgment, we cannot say that Mozingo’s claims were completely without substantial justification, as within the statutory definition of the phrase. Obviously, the trial court found the same to be true because it refused to award NAG sanctions. From the record before us, we also cannot say that the trial court committed a clear error of judgment in refusing to impose sanctions against Mozingo. Therefore, we find that the court did not abuse its discretion.

¶ 31. We also note that NAG’s cross-appeal contends that the trial court should have awarded sanctions under Rule ll. However, NAG failed to present an argument for the propriety of sanctions against Mozingo under Rule 11(b). Williams v. State, 708 So.2d 1358, 1360-61(¶ 12) (Miss. 1998). As such, we decline to discuss the appropriateness of sanctions under the Rule in this opinion.

¶ 32. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY GRANTING SUMMARY JUDGMENT IS AFFIRMED AS TO DIRECT APPEAL AND CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT/CROSS-APPELLEE.

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

      .Mozingo actually sued NAG, Eddie Haynes, and James Jenkins. In the interest of clarity, we refer to the defendants collectively as NAG throughout this opinion.

      .Mr. Mozingo is the owner of Mozingo Real Estate and Auction, Inc. Wills is one of the tenants-in-common who owned the property auctioned by NAG.

      .NAG and Mozingo disagree as to the estimated value of the property. NAG maintains that the $5.7 million was well above the estimated value of the property. Mozingo claims that the property had been appraised to be worth as much as $30 million. No official estimate appears in the record from either party, but the court did indicate on the record that the sale price ($5.7 million) was above the estimated value of the property as given to the court.

      . Mississippi case law provides a dearth of guidance on the striking of affidavits. Ultimately, the decision of whether to strike an affidavit lies within the sound discretion of the trial court. We are not certain that the court did not abuse this discretion in striking Mozingo's entire affidavit. However, we find that any error on the part of the court was harmless and moot, as discussed above.

      . Meadows is a Mississippi attorney who worked on the partition and subsequent auction of the property sold by NAG.

      . NAG’s initial counsel apparently never filed answers to Mozingo’s discovery requests. The filing of this affidavit alerted NAG’s counsel that discovery had never been given, a deficiency that was promptly corrected.

      . Rule 11(b) of the Mississippi Rules of Civil Procedure permits the court to award reasonable expenses and attorney’s fees against a party or his attorney, or both, if the court finds that pleadings, motions, or other papers were filed that were frivolous, for the purpose of harassment or delay, or to increase the cost of litigation.


author: ROBERTS, J.,

text:
    Margaret LYONS, Appellant v. BILOXI H.M.A., INC. d/b/a Biloxi Regional Medical Center, Inc. and Rehab Associates, LLC, Appellees.
    No. 2005-CA-00193-COA.
    Court of Appeals of Mississippi.
    March 28, 2006.

      Joe Sam Owen, Gulfport, attorney for appellant.
    Christopher Garrett Henderson, Mark P. Caraway, Harry Monroe Simpkins, Lynda Clower Carter, Jackson, attorneys for appellees.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. Margaret Lyons filed a medical negligence suit against the Biloxi Regional Medical Center (BRMC) and Rehab Associates. After Mrs. Lyons designated her expert witnesses pursuant to an agreed scheduling order, BRMC and Rehab Associates filed a motion for summary judgment. The circuit court determined that Mrs. Lyons failed to tender certain necessary expert witnesses. Consequently, the circuit court granted BRMC and Rehab Associates’s motion for summary judgment. Aggrieved, Mrs. Lyons appeals and raises the following issue, listed verbatim:

I. WHETHER THE LOWER COURT ERRED BY GRANTING SUMMARY JUDGMENT ON FACT MATTERS WITHIN THE COMMON KNOWLEDGE OF LAYMEN WHICH ARE EXCEPTIONS TO THE GENERAL RULE THAT EXPERT TESTIMONY IS REQUIRED IN SIMPLE NEGLIGENCE CASES.

Finding no error, we affirm the circuit court’s decision.

FACTS

¶ 2. On August 22, 2000, Mrs. Lyons checked into BRMC for hip replacement surgery. Mrs. Lyons was seventy-two years of age and weighed about 260 pounds. On August 23, 2000, Dr. Charles Winters performed the hip replacement surgery without complications.

¶ 3. As part of her recovery, Dr. Winters ordered Mrs. Lyons to walk and put weight on her hip, to the degree that she could tolerate it. By Dr. Winters’s orders, Mrs. Lyons began physical therapy on August 24, 2000.

¶ 4. Acting as independent contractors, Rehab Associates, LLC provided physical therapy services at BRMC. Rehab Associates employed Miriam Bosarge, a licensed physical therapist. Ms. Bosarge concluded that Mrs. Lyons was able to walk — at least for short distances.

¶ 5. On August 24, 2000, Ms. Bosarge and Christy Gill, a physical therapy assistant student, went to Mrs. Lyons’s room to help Mrs. Lyons walk to the restroom. Five or six other therapy assistants and nurses were in the room. At Ms. Bo-sarge’s request, Mrs. Lyons performed a number of exercises designed to identify Mrs. Lyons’s range of motion and her ability to walk. Then, Mrs. Lyons moved from her bed to a bedside chair. As she sat in the chair, Mrs. Lyons performed additional exercises intended to help Ms. Bosarge determine whether Mrs. Lyons was able to walk.

¶ 6. Rehab Associates provided Mrs. Lyons with assistance as she made her way to the restroom, which was located in her hospital room. Mrs. Lyons used a “walker” for support as she walked the short distance to the restroom. Additionally, Mrs. Lyons wore a “gait belt.” A gait belt is designed with attached rings that allows a physical therapist or therapist’s assistant to help keep a patient in a standing position. Ms. Bosarge held the gait belt while Mrs. Lyons walked to the restroom.

¶ 7. Mrs. Lyons walked to the restroom. Ms. Bosarge helped Mrs. Lyons to .the toilet. Because the size of the restroom entrance prevented two people from assisting Mrs. Lyons to the toilet, Ms. Gill waited just outside the door.

¶ 8. On Mrs. Lyons’s return trip, Ms. Bosarge helped Mrs. Lyons off the toilet. Mrs. Lyons held onto the walker, while Ms. Bosarge walked behind her and held onto the gait belt. Mrs. Lyons walked to the doorway, but was unable to go any further. Ms. Bosarge asked Mrs. Lyons to take two additional steps, so Ms. Gill could position a wheel chair behind her. According to Mrs. Lyons, she fell to the floor. Ms. Bosarge described Mrs. Lyons’s descent as a “controlled descent.” According to Ms. Bosarge, Mrs. Lyons ended up sitting on top of her.

¶ 9. Mrs. Lyons could not get up. She was assisted to her bed. An x-ray revealed that Mrs. Lyons dislocated her newly installed hip prosthesis. On August 25, 2000, Dr. Hawkins attempted a “closed reduction” of Mrs. Lyons dislocated hip. During Dr. Hawkins’ attempt, Mrs. Lyons suffered an “avulsion fracture of the right greater trochanter.” On August 30, 2000, Dr. Winters performed a successful “open reduction” of Mrs. Lyons dislocated hip and a “fixation of the fracture” to Mrs. Lyons’s greater trochanter. BRMC discharged Mrs. Lyons on September 11, 2000.

¶ 10. On March 7, 2002, Mrs. Lyons filed a complaint against BRMC and alleged that BRMC neglected to provide her with proper care after she had hip replacement surgery. Later, Mrs. Lyons amended her complaint and included her physical therapy clinic, Rehab Associates, as an additional defendant.

¶ 11. On October 22, 2003, Mrs. Lyons, BRMC, and Rehab Associates entered an agreed scheduling order. According to that scheduling order, Mrs. Lyons agreed to disclose any expert witnesses on or before February 1, 2004. Mrs. Lyons tendered her designation of expert witnesses on January 28, 2004. Within that designation, Mrs. Lyons listed her experts and their anticipated opinions.

¶ 12. On October 10, 2004, BRMC and Rehab Associates filed a motion for summary judgment. Within their motion, BRMC and Rehab Associates claimed that Mrs. Lyons failed to identify any experts that would provide an opinion regarding the appropriate standard of care, whether BRMC or Rehab Associates breached that standard of care, or whether BRMC or Rehab associates caused Mrs. Lyons to suffer damages. That motion for summary judgment went before the Second Judicial District of the Harrison County Circuit Court on November 19, 2004. Following argument from the parties, the circuit court decided that Mrs. Lyons failed to disclose any expert witnesses that would establish a prima facie case of medical negligence. Accordingly, the circuit court granted BRMC and Rehab Associates’s motion for summary judgment.

STANDARD OF REVIEW

¶ 13. Mrs. Lyons alleges that the circuit court improperly granted summary judgment in favor of BRMC and Rehab Associates. This Court conducts a de novo review of a decision whether to grant summary judgment. Potter v. Hopper, 907 So.2d 376(¶ 6) (Miss.Ct.App.2005). That review includes examination of evi-dentiary matters in the record in the light most favorable to the non-moving party. Id. Unleás a triable issue of fact exists, this Court will affirm the circuit court’s decision. Id.

ANALYSIS

I. WHETHER THE LOWER COURT ERRED BY GRANTING SUMMARY JUDGMENT ON FACT MATTERS WITHIN THE COMMON KNOWLEDGE OF LAYMEN WHICH ARE EXCEPTIONS TO THE GENERAL RULE THAT EXPERT TESTIMONY IS REQUIRED IN SIMPLE NEGLIGENCE CASES.

¶ 14. Mrs. Lyons sued BRMC and Rehab Associates under a cause of action for medical negligence. To establish a prima facie case for medical negligence, a plaintiff must prove (1) the defendant has a duty to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; (2) the defendant failed to conform to that required standard; (3) the defendant’s breach of his duty was a proximate cause of the plaintiffs injury, and; (4) the plaintiff was injured as a result. Burnham v. Tabb, 508 So.2d 1072, 1074 (Miss.1987).

¶ 15. The circuit court granted BRMC’s motion for summary judgment based on Mrs. Lyons’s failure to tender an expert witness on the appropriate standard of care under the circumstances. The general rule is that medical negligence may only be established by expert medical testimony, unless a layman can observe and understand the negligence as a matter of common sense and practical experience. Coleman v. Rice, 706 So.2d 696, 698 (Miss. 1997). A trial judge’s determination as to whether a witness is qualified to testify as an expert is given the widest possible discretion and that decision will only be disturbed when there has been a clear abuse of discretion. Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So.2d 1346,1357 (Miss.1990). Such discretion deserves equal respect at the summary judgment stage and the trial stage. Id.

¶ 16. According to Mrs. Lyons, it is not necessary to have an expert witness testify on this issue. Mrs. Lyons claims that whether BRMC and Rehab Associates provided the necessary care in transporting Mrs. Lyons to the restroom is a matter within the common knowledge of laymen. Specifically, Mrs. Lyons claims that “[i]t is ordinary negligence when a physical therapist, or any other individual in this setting, fails to assist a patient attempting to ambulate the day after a total hip replacement.” Mrs. Lyons also states that “[i]t is a matter of common sense and practical experience that one is unable to ambulate without assistance the day after a total hip replacement.” According to Mrs. Lyons, “[a] jury does not need an expert to assist it in determining whether an elderly patient who has just undergone surgery for a total hip replacement needs assistance to walk. These matters fall within the common knowledge of laymen and are exceptions to the rule that expert testimony is required in medical negligence cases.”

¶ 17. Naturally, BRMC and Rehab Associates disagree with Mrs. Lyons. According to BRMC and Rehab Associates, the issue is whether Mrs. Lyons received assistance that was sufficient, appropriate, and in compliance with the applicable standard of care. BRMC points out a portion of Mrs. Lyons’s deposition in which Mrs. Lyons stated “they had a belt around my waist that one physical therapist kept her hand on at all time.” There is no dispute that Rehab Associates assisted Mrs. Lyons as- she made her way to and from the restroom. BRMC concludes that the only issue is whether Mrs. Lyons received adequate and appropriate assistance from Rehab Associates. According to BRMC, expert testimony is necessary to resolve whether Mrs. Lyons received such adequate and appropriate assistance.

¶ 18. In certain instances, a layman asked to evaluate medical negligence can “observe and understand the negligence as a matter of common sense and practical experience.” Palmer v. Anderson Infirmary Benev. Ass’n, 656 So.2d 790, 795 (Miss.1995). For instance, a layman can understand without expert testimony that “the unauthorized and unexplained leaving of an object inside a patient during surgery is negligence.” Coleman, 706 So.2d at 698. However, “[l]ay testimony is sufficient to establish only those things that are purely factual in nature or thought to be in the common knowledge of laymen.” Id.

¶ 19. There is no dispute as to whether Mrs. Lyons received assistance on her trips to and from the restroom. It is clear that Mrs. Lyons wore a “gait belt.” It is clear that Bosarge held onto that gait belt as Mrs. Lyons attempted to walk. The record reveals that Mrs. Lyons used a walker on her trips to and from the restroom. Two therapists actively assisted Mrs. Lyons. To present a prima facie case of negligence, Mrs. Lyons had to prove that she received care that deviated from the appropriate standard of care. Burnham, 508 So.2d at 1074. In our opinion, whether Rehab Associates or BRMC conformed to or deviated from the appropriate standard of care in the assessment and evaluation of Mrs. Lyons and in providing Mrs. Lyons with appropriate assistance to and from the restroom or otherwise providing proper physical therapy services incident to total hip replacement is not within the common knowledge of laymen. Accordingly, we affirm the decision of the circuit court.

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

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


author: GRIFFIS, J.,

text:
    Kirsten JOHNSON and John Johnson, Appellants v. Janis E. BURNS-TUTOR, M.D., Appellee.
    No. 2005-CA-00159-COA.
    Court of Appeals of Mississippi.
    March 28, 2006.

      Jonathan Thomas Crump, Tupelo, attorney for appellant.
    Clinton M. Guenther, Greenwood, attorney for appellee.
   GRIFFIS, J.,

for the Court.

¶ 1. Kirsten and John Johnson filed a medical negligence action against Janice E. Burns-Tutor, M.D. in the Circuit Court of Lee County. Dr. Burns-Tutor filed a motion for summary judgment due to the Johnsons’s failure to designate a medical expert witness. The Honorable Sharion R. Aycock granted the motion. On appeal, we find no error and affirm.

FACTS

¶ 2. In November of 1999, Kirsten Johnson sought the services of Dr. Burns-Tutor, a plastic surgeon, for liposculpture and abdominoplasty. In 2001, Kirsten underwent the abdominoplasty procedure.

¶ 3. Not satisfied with the result, on December 30, 2002, the Johnsons filed a pro se complaint that alleged that Dr. Burns-Tutor was negligent in performing the surgical procedure because Kirsten was left with a noticeable scar. According to the complaint, the Johnsons claim that: (1) Kirsten Johnson gave her approval to the operation based on the belief that she would not receive any substantial scars, and the cut used would be a “bikini cut;” (2) standard surgical procedures were not used in the performance of abdominoplasty making it impossible for Kirsten to enjoy the expected benefits; (3) the abdomino-plasty procedure was not properly performed, since is was Kirsten’s specific intention that she would receive a virtually unnoticeable “bikini cut” and not the “handlebar” scars that resulted; and John was entitled to damages for loss of consortium due to Dr. Burns-Tutor’s negligence.

¶ 4. In June of 2003, Dr. Burns-Tutor filed a motion for summary judgment. The motion argued that Dr. Burns-Tutor was entitled to a judgment as a matter of law because the Johnsons had failed to designate a medical expert witness. The Johnsons argued that expert testimony was not necessary because the negligence was obvious. On October 3, 2003, the circuit court denied the motion for summary judgment but gave the Johnsons forty-five days to designate a medical expert. Thereafter, the Johnsons were granted an additional twenty days.

¶ 5. On December 23, 2003, the Johnsons filed a designation of expert witness. It designated Dr. J. Kurt Bivens, as an expert in the field of cosmetic, plastic, and reconstructive surgery. The designation stated that a copy of Dr. Biven’s credentials and qualifications had been provided to Dr. Burns-Tutor.

¶ 6. Dr. Burns-Tutor moved to strike the Johnsons’s expert designation because it was signed by Jon T. Crump, Esq. Mr. Crump is an attorney who appeared at the summary judgment hearing with the John-sons. During the hearing, Mr. Crump advised the court that he was not entering an appearance as the Johnsons’s attorney of record. In response to the motion to strike, however, Mr. Crump filed a formal entry of appearance. Dr. Burns-Tutor then withdrew her motion to strike the expert designation.

¶ 7. In September of 2004, an agreed scheduling order was entered. It required that: (1) the Johnsons’s experts be designated no later than September 15, 2004; (2) Dr. Burns-Tutor’s experts be designated no later than October 15, 2004; (3) all discovery be completed no later than December 15, 2004; (4) all motions be served no later than February 15, 2005; and (5) the order setting trial be filed before December 1, 2004.

¶ 8. On September 15, 2004, Mr. Crump served the second plaintiffs’ designation of experts that identified Dr. Bivens as an expert witness. The content of this designation will be discussed below.

¶ 9. In November of 2004, Dr. Burns-Tutor renewed her motion for summary judgment. The circuit judge found that the Johnsons’s failed to designate an expert witness, pursuant to Rule 26 of the Mississippi Rules of Civil Procedure, and could not make a showing sufficient to establish the existence of an essential element of her case. The court granted Dr. Burns-Tutor’s motion for summary judgment.

STANDARD OF REVIEW

¶ 10. Our standard of review for the grant or denial of summary judgment is the same standard as that of the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure. McMillan v. Rodriguez, 823 So.2d 1173, 1176(¶ 9) (Miss. 2002). This Court employs a de novo standard of review of a lower court’s grant or denial of a summary judgment and examines all the evidentiary matters before it— admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. Id. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. Id. If, in this view, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Id. Otherwise, the motion should be denied. Id. Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says to the opposite. Id. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. Id. That is, the non-movant should be given the benefit of the doubt. Id.

ANALYSIS

¶ 11. The Johnsons argue that the question presented is whether an expert witness was required for the Johnsons to prevail on their claim of lack of informed consent. The Johnsons argue that no expert witness testimony was necessary. Hence, they argue it was error for the circuit judge to grant the motion for summary judgment. They claim that Dr. Burns-Tutor promised to make an incision in one place, but made it in another. Thus, they say the more accurate issue is whether expert testimony is required for a medical negligenee/lack of informed consent claim to escape summary judgment.

¶ 12. The Johnsons’s complaint alleged a claim for medical malpractice. Clearly, a doctor-patient relationship existed. Thus, for the Johnsons to prevail they were required to prove: (1) the standard of care, (2) breach of the standard of care, (3) causal connection between the breach and the injury, and (4) the extent of the plaintiffs damages. McCaffrey v. Puckett, 784 So.2d 197, 206 (¶33) (Miss.2001), Typically, negligence cannot be established without medical testimony that the defendant failed to use ordinary skill and care. Sheffield v. Goodwin, 740 So.2d 854, 858(¶ 5) (Miss.1999). In Erby v. North Mississippi Medical Center, 654 So.2d 495, 500 (Miss.1995), the supreme court held that “our general rule is that medical negligence may be established only by expert testimony, with an exception for instances where a layman can observe and understand the negligence as a matter of common sense and practical experience.”

¶ 13. The Johnsons argue that an expert opinion is not necessary because a layman can “observe and understand” that the resulting scar was not where it was supposed to be and that the scar’s placement constitutes medical malpractice. The circuit judge disagreed and determined that the Johnsons’s claims required expert medical testimony.

¶ 14. In response to the motion for summary judgment, the Johnsons relied on the designation of Dr. J. Kurt Bivens as an expert witness and the description of his testimony that was served on September 15, 2004. The Johnsons also argued that they could prevail without an expert on the issues of lack of informed consent and failure to perform the correct operation. The Johnsons argue that they presented evidence that Kirsten was promised that her scar would be in a different location and that this could be explained by the fact that Dr. Burns-Tutor performed a different type of procedure other than the procedure that was agreed upon.

¶ 15. On September 15, 2004, Jon Crump served the plaintiffs’ designation of experts that identified Dr. Bivens as an expert witness. It stated that:

Dr. Bivens will testify as to the standard of care, breach and causation elements. Dr. Bivens credentials are attached hereto in the form of his curriculum vitae. Dr. Bivens has prepared medical reports involving the plaintiffs prior treatment and consultations, and plaintiff has requested that Dr. Bivens prepare a report delineating the specific facts and standard to be testified upon by Dr. Bivens.

¶ 16. At the hearing on the motion for summary judgment, Mr. Crump introduced a statement from Dr. Bivens, dated December 22, 2003. It was signed by Dr. Bivens, but it was neither a sworn affidavit nor did it provide any opinions that would assist the Johnsons in meeting their burden of proof. Mr. Crump argued that the Johnsons did not claim that Dr. Tutor improperly performed a procedure. Instead, the question was whether the actual scars Kirsten received were the type and at the location that should have been produced by the procedure.

¶ 17. The circuit judge determined that expert testimony was required and ruled that Dr. Bivens’ December 22, 2003 report was not sufficient to overcome the motion for summary judgment.

¶ 18. Without expert medical testimony, we find that the circuit judge was correct to grant the summary judgment as to the claim for medical negligence. Neither the Johnsons’s discovery responses, the designation of expert witness, nor the December 22, 2003 report established the appropriate standard of care or opined that Dr. Burns-Tutor breached the standard of care.

¶ 19. The Johnsons argue that they should be allowed to proceed with a claim for lack of informed consent, although it was not clearly pled or argued. In Jami-son v. Kilgore, 905 So.2d 610, 613 (¶ 12) (Miss.Ct.App.2004), this Court held that proof of lack of informed consent requires expert medical testimony. The supreme court affirmed Jamison and held that exj pert testimony is required to prove proximate cause and injury. The court determined that “expert testimony is necessary to inform the fact-finder of exactly what information the doctor should have communicated to the patient, thus explaining what constituted a breach of care.” Jami-son v. Kilgore, 903 So.2d 45, 49 (¶¶ 13, 14) (Miss.2005).

¶ 20. The record indicates that Kirsten initialed several pages of pre-printed forms that informed her of the general surgical risks and the specific surgical risks of li-posculpture and abdominoplasty. It specifically listed the following among these risks for abdominoplasty:

Incisions (scars): After a full abdomino-plasty, you will have a long scar above the pubic hairline extending toward the flanks or beyond, as well as a scar around the umbilicus (belly button) and, possibly a shorter vertical scar in the midline just above the pubic hairline. You should discuss your incision lines with Dr. Burns-Tutor, and plan the incision to accommodate, within limits, different clothing and bathing suit styles. (In case of extreme skin redundancy— that is, after massive weight loss — a vertical scar extending from the pubic hairline to the lower end of the breastbone may result.)
After a “mini-abdominoplasty,” you will have neither (sic) a scar around the umbilicus nor any possibility of a vertical scar. The horizontal scar above the pubic hairline will be shorter than the scar after a full abdominoplasty. Redness, thickness, and some widening of these scars to a variable extent will occur once you return to normal activities. Incisions placed in high-tension areas (i.e.abdomen, shoulders, knees) tend to create slightly wider scars.
If you have chosen an extended abdomi-noplasty, the scars will extend around the hips toward the back.

¶ 21. The question is whether Kirsten’s scars were in the correct location. We have reviewed the photographs of Kirsten’s scars. However, without the testimony of a medical expert, neither this Court nor a jury can understand what information Dr. Burns-Tutor should have disclosed to Johnson before she consented to the procedure. Whittington v. Mason, 905 So.2d 1261, 1266(¶24) (Miss.2005). Hence, we do not agree that the location of an abdominoplasty scar is within the common sense or practical experience of a layman. Therefore, we find that the circuit judge did not abuse her discretion in granting summary judgment in favor of Dr. Burns-Tutor.

¶ 22. We affirm.

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

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


author: LYONS, Justice.

text:
    Shelia HOLLY and Leroy Holly v. HUNTSVILLE HOSPITAL and Dr. John Edward Markushewski.
    1031824.
    Supreme Court of Alabama.
    Sept. 16, 2005.

      Shay Samples and Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham; and Gary V. Conchin and Maureen K. Cooper of Morris, Conchin, Banks & Cooper, Huntsville, for appellants.
    W. Stanley Rodgers, Daniel F. Beasley, and Jeffrey T. Kelly of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellees.
   LYONS, Justice.

The plaintiffs below, Shelia Holly and Leroy Holly, appeal from the trial court’s order granting a motion for a new trial filed by the defendants below, Huntsville Hospital and Dr. John Edward Markush-ewski. We affirm.

I. Facts and Procedural History

On October 6, 1997, Shelia Holly took the Hollys’ 11-month-old child, Cameron, to the emergency room at Huntsville Hospital; the child had a fever and a high pulse rate and he was having trouble breathing. Dr. Markushewski observed Cameron for three hours, wrote a prescription for him, and discharged him. Shortly after he was discharged, Cameron went into respiratory arrest and then cardiac arrest. He was transported back to the hospital, where he was pronounced dead.

The Hollys sued Dr. Markushewski and the hospital in the Madison Circuit Court. The jury returned a verdict for the defendants, and the Hollys appealed. This Court reversed the judgment entered on the jury’s verdict because the trial court had improperly excluded the testimony of the Hollys’ expert witness regarding the applicable standard of care. Holly v. Huntsville Hosp., 865 So.2d 1177 (Ala. 2003). After another trial, the jury returned a verdict in favor of the Hollys. The defendants filed a motion for a new trial, which the trial court granted, and the Hollys appealed.

On appeal, the dispositive issue is whether the trial court acted within its discretion in granting the defendants’ motion for a new trial based on their argument that one of the jurors failed to answer a question on voir dire. The question dealt with whether any of the prospective jurors had had any disputes with Huntsville Hospital and was posed as follows:

“Anybody else that has had any difficulty where you were not satisfied with the service there at Huntsville Hospital? I think I’ll just ask a broad question, how about any of you that have had family members that were treated at Huntsville Hospital as in-patients or as out-patients in the emergency department, any of you that have had anything other than a completely satisfactory experience or you know of some family member who has not had that completely satisfactory experience? Now we’re excluding the food, okay. How about it? Anybody? Have any of you ever had a dispute with Huntsville Hospital about anything, a bill, a statement or anything about it? You had any dispute with them about anything?

(Emphasis added.) One of the jurors who did not respond to defense counsel’s inquiry had been involved in what the defendants now describe as numerous “collection disputes” with Huntsville Hospital. At the hearing on the defendants’ motion for a new trial, the director of patient accounting for Huntsville Hospital testified that, at the time of the trial, the juror had at least 10 delinquent accounts with Huntsville Hospital, totaling $1,268.51, and that the hospital, through various collection agencies, had sent a total of 39 letters and placed 13 telephone calls to the juror regarding his debts to Huntsville Hospital. On May 4, 2004, Huntsville Hospital sued the juror in the Madison District Court, seeking payment on seven of the juror’s past-due accounts, although the juror did not receive notice of the filing of that action until at least May 12, the day the jury returned its verdict in favor of the Hollys in their medical-malpractice case against Huntsville Hospital and Dr. Mar-kushewski.

II. Standard of Review

“While we agree ... that a juror’s silence during voir dire could be a basis for granting a new trial, we must stress that the initial decision on this issue is within the trial court’s sound discretion. Hayes v. Boykin, 271 Ala. 588, 126 So.2d 91 (1960). Further, the trial court’s decision on this matter will not be disturbed on appeal unless the appellant establishes that the decision was arbitrarily entered into or was clearly erroneous.”

Carter v. Henderson, 598 So.2d 1350, 1354 (Ala.1992).

“The proper inquiry on a motion for a new trial based on improper or nonexistent responses to voir dire questions is whether the response, or the lack of response, resulted in probable prejudice to the movant. Freeman v. Hall, 286 Ala. 161, 238 So.2d 330 (1970). Not ' every failure of a prospective juror to respond correctly to a voir dire question will entitle the losing party to a new trial. Wallace v. Campbell, 475 So.2d 521 (Ala.1985).
“The determination of whether the complaining party was prejudiced by a juror’s failure to answer voir dire questions is a matter within the discretion of the trial court and will not be reversed unless the court has abused its discretion. Freeman, supra.

Union Mortgage Co. v. Barlow, 595 So.2d 1335, 1342 (Ala.1992). Questions of law and the application of the law to the facts presented are to be reviewed de novo. Allstate Ins. Co. v. Shelton, 675 So.2d 377, 379 (Ala.1996).

III. Analysis

A.

Initially, the Hollys argue that Huntsville Hospital waived its right to move for a new trial based on the juror’s failure to answer the voir dire question regarding whether any prospective jurors had any disputes with Huntsville Hospital. They argue that agents of Huntsville Hospital had notice of the dispute between the hospital and the juror, and, therefore, through principles of agency law, Huntsville Hospital itself had notice of the dispute. They further contend that “[wjhere a party has knowledge of facts which could justify the discharge of a juror, but fails to inform the court in a timely fashion, the party waives the issues.” 50A C.J.S. Ju-ñes § 507 at 556 (1997).

The defendants, on the other hand, point out that regardless of whether knowledge of the dispute between Huntsville Hospital and the juror can be imputed to the hospital, Dr. Markushewski, who was a defendant below, had no knowledge of that dispute. According to the defendants, because the liability of Huntsville Hospital is based on Dr. Markushewski’s actions, if the doctor is entitled to a new trial based on the juror’s failure to answer the question posed during voir dire, then so is Huntsville Hospital, a point the Hol-lys concede.

The Hollys do not make any argument in their initial brief on appeal regarding any waiver by Dr. Markushewski of his right to assert the juror’s failure to disclose the dispute between him and Huntsville Hospital as a basis for a new trial. In their reply brief, the Hollys argue that Dr. Markushewski did not have “standing” to assert the failure of the juror to respond to the voir dire question. In reality, this “standing” argument is simply an attempt to show that Dr. Markushewski was not prejudiced by the juror’s failure to respond; it has no relevance to a possible waiver by Dr. Markushewski based on knowledge he may have had of the dispute between the juror and Huntsville Hospital. We address below the Hollys’ argument that the failure of the juror to respond to the question did not prejudice the defendants.

The Hollys also argue in their reply brief that, because both Huntsville Hospital and Dr. Markushewski were represented by the same trial counsel, Dr. Markush-ewski is bound by counsel’s alleged waiver of the right to assert the issue regarding the juror’s failure to disclose his dispute with Huntsville Hospital. The general rule is that “this Court does not address issues raised for the first time in a reply brief.” Byrd v. Lamar, 846 So.2d 334, 341 (Ala.2002). However, we note that we disagree with the Hollys’ contention. The Hollys’ argument that Huntsville Hospital waived its right to assert in its motion for a new trial the failure of the juror to disclose during voir dire the existence of his dispute with Huntsville Hospital is based on Huntsville Hospital’s knowledge of that dispute. The Hollys contend in their reply brief that “ ‘[wjhere [anj attorney is acting for several clients at the same time and in the same business ... knowledge which the attorney acquires in the transaction may be imputed to all.’ ” (Quoting 7 Am.Jur.2d Attorneys at Law § 156 (1997)). However, the Hollys concede elsewhere in their reply brief that they “do not contend that [defense] counsel actually knew about [the juror’s] hospital bill.” We decline to consider whether Dr. Markushewski waived his right to assert the juror’s failure to disclose the dispute between the juror and Huntsville Hospital absent a showing that either he or his trial counsel had actual notice of that dispute.

Because Huntsville Hospital’s liability is necessarily based on the liability, if any, of Dr. Markushewski, if the doctor is entitled to a new trial, so is Huntsville Hospital. Because we decline to hold that Dr. Mar-kushewski waived his right to assert the juror’s failure to disclose the existence of the dispute between the juror and Huntsville Hospital as grounds for a new trial, whether Huntsville Hospital waived its right is irrelevant.

B.

The Hollys argue that the trial court exceeded its discretion in granting the defendants’ motion for a new trial based on the juror’s failure to respond to the question. They contend that the juror never disputed the fact that he had unpaid debts with Huntsville Hospital, and that therefore the juror’s failure to respond to the voir dire question did not amount to a false answer. However, as noted above:

“[T]he initial decision on this issue [whether to grant a new trial based on a juror’s silence during voir dire] is within the trial court’s sound discretion.... [T]he trial court’s decision on this matter will not be disturbed on appeal unless the appellant establishes that the decision was arbitrarily entered into or was clearly erroneous.”

Carter, 598 So.2d at 1354.

The relevant portion of the question propounded to the prospective jurors was: “Have any of you ever had a dispute with Huntsville Hospital about anything, a bill, a statement or anything about it? You had any dispute with them about anything?” Evidence presented in support of the defendants’ motion for a new trial tended to show: 1) that the juror had 10 delinquent accounts with Huntsville Hospital, 2) that during a period of 5 years up until the date the trial began, a total of 39 collection letters had been sent to the juror, and 3) that during that same time period, 13 telephone calls had been placed to the juror in an attempt to collect on the unpaid accounts. Based on the record before us, we cannot conclude that the trial court exceeded its discretion when it determined that the juror had a “dispute” with Huntsville Hospital and that therefore the juror should have responded when the question was asked. Cf. Conference America, Inc. v. Telecommunications Coop. Network, Inc., 885 So.2d 772 (Ala. 2003) (holding that a question, asked during voir dire, whether any juror had been involved in a “contract dispute” encompassed a collection action against a juror and holding that the trial court exceeded its discretion in denying a motion for a new trial based partly on the juror’s failure to answer that question). We therefore decline to reverse the trial court’s order granting a new trial based on the Hollys’ argument that the juror, under the circumstances here presented, was not obliged to respond to the question.

C.

As noted above, “[t]he proper inquiry on a motion for a new trial based on improper or nonexistent responses to voir dire questions is whether the response, or the lack of response, resulted in probable prejudice to the movant.” Union Mortgage Co., 595 So.2d at 1342. “The question of prejudice is a determination to be made within the trial court’s discretion.” Colbert County-Northwest Alabama Healthcare Auth. v. Nix, 678 So.2d 719, 722 (Ala.1995). The Hollys argue that the trial court exceeded its discretion in determining that probable prejudice resulted from the juror’s failure to disclose in response to a voir dire question that he had had disputes with Huntsville Hospital.

“Some of the factors that this Court has approved for using to determine whether there was probable prejudice include: ‘temporal remoteness of the matter inquired about, the ambiguity of the question propounded, the prospective juror’s inadvertence or willfulness in falsifying or failing to answer, the failure of the juror to recollect, and the materiality of the matter inquired about.’ Freeman [v. Hall ], 286 Ala. [161] at 167, 238 So.2d [330] at 336 [ (1970) ].”

Union Mortgage Co., 595 So.2d at 1342-43.

As far as the “temporal remoteness of the matter inquired about,” the defendants point out that collection attempts on the juror’s account with Huntsville Hospital began five years before the trial in the medical-malpractice action and were continuing at the time of trial. As for the second consideration, the ambiguous nature of the question, the defendants contend that the question propounded to the prospective jurors was not so ambiguous as to excuse the juror’s failure to respond. As noted, defense counsel asked if any of the jurors had “a dispute with Huntsville Hospital about anything, a bill, a statement or anything about it.” We agree with the defendants that the trial court acted within its discretion in determining that the question was not. so ambiguous and that the billing dispute was not so temporally remote as to excuse the juror’s failure to respond. Cf. Conference America, Inc., supra.

The third factor that may be considered in determining whether a juror’s failure to answer a voir dire question probably resulted in prejudice is the juror’s inadvertence or willfulness in falsifying or failing to answer. The Hollys contend that because the meaning of “dispute” is open to interpretation, and because the juror did not consider his dealings with Huntsville Hospital to constitute a “dispute,” the juror did not willfully mislead the defendants by effectively answering the. question in the negative.

The Hollys concede that the juror admitted receiving collection letters from Huntsville Hospital. They therefore cannot argue that the juror was unaware of Huntsville Hospital’s attempts to collect on the juror’s unpaid accounts and that therefore the juror inadvertently failed to disclose the dispute during voir dire. Further, because the dispute between the juror and Huntsville Hospital was ongoing at the time of the trial in the medical-malpractice action, and because we agree with the defendants that the trial court acted within its discretion in determining that the question was not so ambiguous as to excuse the juror’s failure to respond, we also agree that the trial court acted within its discretion by rejecting mere inadvertence as an explanation for the juror’s failure to answer and concluding that the juror did not'simply fail to recollect the existence of the dispute or in concluding that the juror acted willfully in failing to respond to the question.

Finally, the last factor to consider in determining whether a failure to respond to a question on voir dire probably prejudiced the party moving for a new trial is the materiality of the matter inquired about. This Court has stated that “information sought on voir dire is material if the questioning attorney considers it important in making the decision to excuse a prospective juror.” Gold Kist, Inc. v. Brown, 495 So.2d 540, 546 (Ala.1986). The materiality of a juror’s ongoing collection dispute with Huntsville Hospital, which will be held liable if a verdict is returned against Dr. Markushewski, requires no elaboration. Therefore, we conclude that the trial court acted within its discretion in determining that the matter inquired about was material. See Conference America, Inc., supra; Colbert County-Northwest Alabama Healthcare Auth., supra (holding that the trial court did not exceed its discretion in granting a new trial where the evidence showed that one juror failed to reveal that her brother had been represented by an attorney in the law firm that represented one of the defendants and another juror failed to reveal that her sister had previously been employed by a hospital, one of the defendants); Gold Kist, Inc., supra (affirming the trial court’s order granting a new trial where, in an automobile-accident case involving a large truck, evidence showed that one juror failed to reveal that he had worked as a truck driver).

IV. Conclusion

We cannot say that the trial court exceeded its discretion in granting the motion for a new trial filed by Huntsville Hospital and Dr. Markushewski; therefore, the judgment is affirmed.

AFFIRMED.

NABERS, C.J., and WOODALL, SMITH, and PARKER, JJ., concur.

      . As previously noted, the evidence also showed that Huntsville Hospital had commenced a collection action against the juror. However, the evidence showed that the juror was not served with notice of that action until the day the jury returned its verdict in the medical-malpractice case.