author: CARLSON, Justice,

text:
    In re V.M.S., a Minor.
    No. 2005-CA-01081-SCT.
    Supreme Court of Mississippi.
    Sept. 28, 2006.

      John R. Reeves, attorney for appellant.
    Office of the Attorney General by Chadwick Dale Montgomery, attorney for ap-pellee.
   CARLSON, Justice,

for the Court.

¶ 1. Aggrieved by the Lowndes County Youth Court’s judgment terminating her parental rights to her minor child, the natural mother appeals to us seeking relief. Finding error in the youth court judge’s decision to terminate the natural mother’s parental rights, we reverse the youth court’s final judgment and remand this case to the Lowndes County Youth Court for further proceedings consistent with this opinion.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. The Lowndes County Department of Human Services (LCDHS) petitioned the County Court of Lowndes County, Youth Court Division, to terminate the parental rights of T.S.T. (Tonya) and “Unknown Putative Father” with respect to V.M.S. (Valerie), a minor child who was in the custody of LCDHS at the time the petition was filed on October 3, 2002. The child had been in the custody of the LCDHS since approximately May 4, 2000, when the child was five years old. The petition cited as its authority the Termination of Rights of Unfit Parents Law, Miss.Code Ann. §§ 93-15-101 et seq., and based its demand for judgment on the mother’s absence and neglect, her diagnosable drug addiction, her failure to implement a plan for the child’s return, her failure to exercise reasonable available visitation, a substantial erosion of the relationship between the mother and the child, and other ongoing behavior preventing placement of the child with the mother. Additionally, the petition stated that the child had been adjudicated to be abused or neglected by a court which determined that reunification was not in the child’s best interest. Tonya filed her answer, which was in essence a general denial, but she admitted that a guardian at litem should be appointed pursuant to Miss.Code Ann. § 93-15-107. During proceedings held on May 1, 2003, the trial judge stated that many of the allegations in the petition were true but that no testimony had been presented to show a substantial erosion of the parent-child relationship or to show any deep-seated antipathy on the part of the child toward the mother. Reviewing the petition and the testimony, the trial court found Tonya’s parental rights should not be terminated and on December 10, 2003, entered its order accordingly. However, the trial court did terminate the father’s parental rights in that same order and additionally found that the child should not be in the mother’s care, though visitation with the mother remained a possibility. LCDHS was awarded full custody; however, visitation was only to be afforded to Tonya at the request of Valerie.

¶ 3. The LCDHS filed a motion under Miss. R. Civ. P. 60(b)(3) for relief from the judgment of December 10, 2003. Thereafter, several motions were filed and heard by the trial court. Tonya filed a Motion for Dispositional Review of the case, requesting custody be returned to her. Tonya also filed a Motion for Immediate Visitation and Other Relief stating she was married, drug-free, operating her own business, and in a stable home. She also filed a Motion for Placement of Child in a Different Foster Home. Tonya argued that LCDHS was intentionally frustrating her attempts to be reunited with her child by placing the child in a home more than an hour away from her mother. LCDHS requested the Motion for Dispositional Review be denied. The response from LCDHS to the Motion for Immediate Visitation alleged that the child never requested visitation from the mother, a requirement placed on this conditional visitation by the earlier court order. Thus, the trial court denied Tonya’s motion for visitation, but also ordered the child examined by a psychologist. In response to Tonya’s motion requesting a new foster home for Valerie, LCDHS pointed out that, after living in several different foster homes, Valerie was happy with the current situation and her current foster parents.

¶ 4. On October 21, 2004, the trial court conducted a hearing on the LCDHS Rule 60(b)(3) motion for relief from the earlier order denying the petition to terminate Tonya’s parental rights. The hearing was also held to assist the trial court in disposing of Tonya’s Motion for Dispositional Review and Motion for Placement of Child into a Different Foster Home. The trial court heard testimony from the child’s mother and the child’s foster mother. The trial judge stated that she was also planning on considering other exhibits and evidence, such as a drug screen, the court-ordered psychological report, and testimony from the child, both oral and in the form of short letters expressing the child’s wish to stop moving around so often and remain with her current foster parents. The testimony of the child had been presented to the trial court on August 11, 2004, at a hearing on Tonya’s Motion for Visitation and Other Relief. After considering the evidence presented at the hearing and the additional exhibits an testimony, the trial court entered its order on January 12, 2005, and granted the LCDHS motion for relief, awarding custody to LCDHS, denying all other motions before the court, and terminating Tonya’s parental rights. The trial court based its decision in part on the August 11, 2004, testimony of the child.

¶ 5. Tonya’s attorney never received notice of the trial court order of January 12, 2005, and the time to file her notice of appeal expired. Tonya therefore filed a motion for reopening time for appeal. On May 12, 2005, the trial court granted the order under the authority of M.R.A.P. 4(h). Tonya appeals now from the trial court’s final judgment of January 12, 2005. LCDHS also filed a notice of an appeal from the trial court’s judgment allowing Tonya to in essence an out-of-time appeal. However, LCDHS never filed a cross-appellant’s brief and wholly failed in its ap-pellee’s brief to address the issues or the judgment which were the subject matter of its notice of appeal; thus, we are faced only with Tonya’s appeal and the issues she raises. The central issues are whether clear and convincing evidence existed to support the trial court’s decision to terminate Tonya’s parental rights and whether that evidence could not have been discovered by due diligence in time to file a motion for a new trial.

DISCUSSION

¶ 6. We review the termination of parental rights to a minor child applying a “clear and convincing evidence” standard, thus applying a “clearly erroneous/manifest error” standard of review. G.Q.A. v. Harrison County Dep’t of Human Resources, 771 So.2d 331, 334-35 (Miss.2000). In G.Q.A., we stated:

A Family Court judgment concerning termination of parental rights will be reviewed under the same standard as a Chancery Court judgment, which is clear and convincing evidence. See Miss.Code Ann. § 93-15-109 (Supp. 1999). Therefore, we review this case under our familiar clearly erroneous/manifest error standard. Although both courts are vested with the power to determine whether parental rights should be terminated, it is important to note that the chancery court derives its jurisdictional authority from Mississippi’s Constitution of 1890 while the Family Court is a creature of statute. See Miss. Const, art. 6, § 159; Miss.Code Ann. § 93-15-105 (1996). The Family Court’s decision will be upheld unless this Court finds it to be unsupported by substantial, credible evidence, giving deference to the Family Court’s findings of fact. S.C.R. v. F.W.K., 748 So.2d 693, 700 (Miss.1999).

771 So.2d at 334-35. Once that burden is met, the best interest of the child is the paramount consideration. Lauderdale County Dep’t of Human Sens. v. T.H.G., 614 So.2d 377, 385 (Miss.1992) (citing Petit v. Holifield, 443 So.2d 874, 877 (Miss.1984)). With this in mind, we now consider Tonya’s issues raised on appeal.

I. WHETHER THE LOWNDES COUNTY DEPARTMENT OF HUMAN SERVICES’ RULE 60(b)(3) MOTION WAS PROPERLY BEFORE THE TRIAL COURT IN THAT IT WAS SUPPORTED BY NEWLY DISCOVERED EVIDENCE

¶ 7. Mississippi law lists “an extreme and deep-seated antipathy by the child toward the parent or ... some other substantial erosion of the relationship between the parent and child which was caused ... by the parent’s ... prolonged and unreasonable absence” as one reason to overcome the strong presumption in favor of parental rights. Miss.Code Ann. § 93-15-103(3)(f). The initial trial court determination that the parental rights of the mother should not be terminated was based on the lack of evidence of any substantial erosion of the parent-child relationship or any deep-seated antipathy toward the mother by the child. Upon granting the LCDHS Motion for Relief from Judgment, the trial judge referred to the August 11, 2004, testimony of the child as her basis for finding that the parent-child relationship had been severed, granting the motion, and terminating the mother’s parental rights. The trial judge found that the evidence was newly discovered and could not have been discovered in time for LCDHS to file a motion for a new trial, and that the evidence satisfied the requirements of Section 93 — 15—103(3)(f), showing a substantial erosion in the relationship between the mother and the child.

¶ 8. Miss. R. Civ. P. 60(b)(3) affords relief from a final judgment where just and upon a motion if there is “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b).” Tonya argues now that the only basis for the trial court’s decision was the interview the youth court judge conducted with the child on August 11, 2004, at the hearing on the mother’s Motion for Immediate Visitation and Other Relief. Additionally, Tonya argues the record is devoid of any evidence which could have been newly discovered as to satisfy the rule. The Rule 60 motion was filed by the LCDHS on April 16, 2004, before the interview with the child had taken place. Tonya argues that because the trial court’s interview with the child did not occur until almost four months after the filing of the motion purportedly based on new evidence, the motion was not properly before the court and should not have been granted. We agree.

¶ 9. LCDHS, in filing the Rule 60(b)(3) motion, neither presented nor described any new evidence which would entitle the agency to relief from the trial court’s judgment. The only new evidence to support a grant of relief from judgment was to be presented at the subsequent hearing. At the hearing, testimony was received from Tonya and Valerie’s foster mother, as well as Valerie’s testimony elicited at a hearing a few months before the hearing, which testimony was incorporated into the trial transcript. In considering the motion, the trial judge was also presented with other exhibits and evidence, such as a drug screen, the court-ordered psychological report, and testimony from Valerie. This “new” evidence purportedly showed a deterioration of the relationship between Valerie and Tonya to the point that the evidence merited the relief from judgment and termination of Tonya’s parental rights. The order entered by the trial court was not accompanied by any detailed findings of fact or conclusions of law. After a thorough review of the record, we have struggled with how the trial judge found the evidence to be “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b).” Miss. R. Civ. P. 60(b)(3).

¶ 10. Tonya argues that the newly discovered evidence must have existed at the time of trial for LCDHS to be entitled to relief. The text of the rule itself does not require that the evidence must have existed at the time of trial; only that the newly discovered evidence was such that it “by due diligence could not have been discovered in time to move for a new trial.” Id. (emphasis added). However, this Court has deemed a similar argument in support of a grant of relief from judgment under Rule 60(b)(3) to fail when it relies on evidence that did not exist at the time of trial. Gray v. Gray, 562 So.2d 79, 82 (Miss.1990). In Gray, we looked to the federal interpretation of Fed.R.Civ.P. 60(b)(2), which is the identical federal counterpart to our state rule. Id. This argument, quite curiously, led to a response on appeal by the LCDHS that “all of the events disclosed by the minor child and the newly discovered evidence obtained supporting the ... motion ... occurred prior to the filing of any termination proceedings in the County Court of Lowndes County.” The LCDHS also points out that indications were such that a deep-seated antipathy of the child towards the mother had existed well before any proceedings in any court. Interestingly, LCDHS in essence fully admits on appeal through these counter-arguments that all of its evidence existed well before any proceedings begun, and thus could not have been “newly discovered,” yet the LCDHS moved for relief from judgment under a rule which by its very nature does not contemplate relief based on such evidence. The actual interview the trial judge conducted with the child was obviously not the basis for the LCDHS motion at the time of filing as that interview did not take place until much later and therefore did not exist at the time of trial. The subject matter of that interview — the child’s feelings about her mother — could also not have been newly discovered evidence as the LCDHS itself admits that those feelings had existed well before trial and therefore could have easily been discovered in time for the LCDHS to move for a new trial. Under both Gray and Miss. R. Civ. P. 60(b)(3), the facts of this ease do not merit terminating the mother’s parental rights. None of this evidence was either newly discovered or of the sort that it could not have been discovered in time to move for a new trial. Accordingly, we find this issue assigned by Tonya to have merit, thus requiring reversal.

II. WHETHER THE DECISION BY THE LOWER COURT TO TERMINATE THE PARENTAL RIGHTS OF THE MOTHER WAS SUPPORTED BY CLEAR AND CONVINCING EVIDENCE

¶ 11. The law leaves no room for doubt as to what is required in a case involving termination of parental rights. “Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence.” Santosky v. Kramer, 455 U.S. 745, 748, 102 S.Ct. 1388, 1391-92, 71 L.Ed.2d 599 (1982) (finding that a “fair preponderance of the evidence” standard was inadequate when reviewing such a fundamental liberty interest). Indeed, this is exactly what the Termination of Rights of Unfit Parents Law requires. The trial judge must be satisfied by clear and convincing proof that the mother was within the grounds laid out within the statute requiring termination of her parental rights. Miss.Code Ann. § 93-15-109. Also, under Mississippi law a strong presumption exists that the natural parent should retain his or her parental rights. See, e.g., Lauderdale County Dep’t of Human Servs. v. T.H.G., 614 So.2d 377, 385 (Miss.1992) (recognizing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). Terminating those rights requires overcoming that strong presumption with clear and convincing evidence. Even the trial judge, in her initial determination that the parental rights should not be terminated, likened such a ruling to the death penalty. The trial court, at that proceeding, found no existence of “an extreme and deep-seated antipathy by the child toward the parent or ... some other substantial erosion of the relationship between the parent and child which was caused ... by the parent’s ... prolonged and unreasonable absence,” and could find no reason to overcome that strong presumption. Miss. Code Ann. § 93 — 15—103(3)(f). On the other hand, LCDHS argues here on appeal that this statutory requirement was proven at the hearing as revealed in the transcript.

¶ 12. LCDHS, as well as Valerie’s foster family, desire for the child to be adopted by the foster family, and are pursuing the termination of Tonya’s parental rights to achieve that end. The statute contemplates such a situation.

When a child has been removed from the home of its natural parents and cannot be returned to the home of his natural parents within a reasonable length of time because returning to the home would be damaging to the child or the parent is unable or unwilling to care for the child, relatives are not appropriate or are unavailable, and when adoption is in the best interest of the child, taking into account whether the adoption is needed to secure a stable placement for the child and the strength of the child’s bonds to his natural parents and the effect of future contacts between them, the grounds listed in subsections (2) and (3) of this section shall be considered as grounds for the termination of parental rights. The grounds may apply singly or in combination in any given case.

Miss.Code Ann. § 93-15-103(1). Tonya’s history, including years before and after Valerie’s birth is in fact fraught with situations less than ideal for rearing a child, including Tonya’s drug abuse and sexual promiscuity in Valerie’s presence. This has had without doubt an adverse effect on the child and the trial court was not blind to that fact; however, with an eye toward the measures the trial judge put in place in her initial order and the rehabilitation the mother has successfully pursued, we are constrained to find that the facts are not sufficient to undergird the trial court’s ultimate decision to terminate Tonya’s parental rights with Valerie. Based on the turbulent childhood Valerie has experienced, the trial court decided to not grant the mother custody or even visitation rights without visitation being requested by the child. In fact, at the May 1, 2003, proceedings, the trial judge stated that many of the allegations in the petition were true, including those which could have been found as grounds to terminate parental rights under the statute. However, the result of the then-truth of those allegations was the denial of granting the mother custody or free visitation — not the termination of her parental rights. The trial judge ruled that no testimony had been presented at those proceedings to show a substantial erosion of the parent-child relationship or to show any deep-seated antipathy on the part of the child toward the mother. This holding would likewise not grant custody or automatic visitation rights to the mother, but simply prevent the mother’s parental rights from being terminated only because of the current situation the foster parents provide the child. Since the commencement of these proceedings in the trial court, Valerie has lived in several foster homes, unhappily moving from home to home, but has now ended up in her current foster home where she is comfortable and adjusting well to her life. This however is still inadequate alone to support a termination of the mother’s parental rights. “ ‘The best interest of the child is a polestar consideration in the granting of any adoption.’ It is a consideration, but this Court has never allowed termination of parental rights only because others may be better parents.” M.L.B. v. S.L.J., 806 So.2d 1023, 1029 (Miss.2000) (quoting In re Adoption of J.J.G., 736 So.2d 1037, 1038 (Miss.1999)).

¶ 13. The typical cases where we have found a substantial erosion in a parent-child relationship are far more extreme than the one presented to us today. In May v. Harrison County Dep’t of Human Servs., 883 So.2d 74 (Miss.2004), the mother breached an agreement with the DHS by failing to attend parenting and counseling classes, and continued to have contact with her husband after his conviction of sexual battery of their 11-year-old daughter, resulting in a substantial erosion of the relationship between the mother and the three children, whom the DHS had removed from the mother’s home after the husband was charged in the crime. That erosion constituted grounds for termination of her parental rights pursuant to Miss.Code Ann. § 93 — 15—103(3)(f). Id. at 76-77, 79.

¶ 14. In G.Q.A., the evidence supported a determination that there had been a substantial erosion of the parent-child relationship resulting from what the trial judge called the worst case of child abuse ever to pass before his bench, the facts of which included waiting more than a week to seek medical attention from a hospital to treat-third degree burns on an eighteen-month-old baby incurred during a scalding bath. 771 So.2d at 332. The time that passed between the burns and treatment resulted in a bacterial infection which caused abscesses on areas of the baby’s body which were unaffected by the initial burns. Id. The severity of the burns resulted in a cardiac condition. Id. at 333. The child had also been severely malnourished for several months, having the height and weight of an eight month old. The child had hair loss, loose teeth, and swollen and bleeding gums, as well as disfigurement from the wounds and infection. Id. Notwithstanding the parents’ contention that they had continuously sought and exercised visitation, but were restricted by court order to only limited, supervised visitation, the court found a substantial erosion in the relationship resulting from the physical abuse. Id. at 338.

¶ 15. However, this Court has also been presented with situations where it was improper to terminate parental rights based on the facts before us. In M.L.B. v. S.L.J., we found that there was insufficient evidence to support the chancellor’s termination of a mother’s parental rights on the ground of a substantial erosion of the relationship. 806 So.2d at 1029. Although the mother’s visits with her children were infrequent, it was not shown that the mother wished to abandon or desert her children. Id. at 1027. To abandon would have meant to forego all duties or to relinquish all parental claims to the children and her conduct did not imply a conscious disregard of all the obligations owed by a parent to the child, leading to the destruction of the parent-child relationship. Id.

¶ 16. In Vance v. Lincoln County Dep’t of Pub. Welfare ex rel. Weathers, 582 So.2d 414, 416 (Miss.1991), we found the evidence sufficient to support a finding of a substantial erosion of the relationship between two children and their mother, who was incarcerated for murder and armed robbery and later for aggravated assault of a correctional officer while incarcerated. In Vance, one of the children testified that he had not seen his mother for five years though he had written to her and talked with her on the phone and he seemed anxious to be adopted by someone, and the other child evidently had no memory of her mother since she was only two years old when she was separated from her mother. Id. at 418. The trial judge found the already-bad relationship eroded to one that was practically non-existent, and this Court refused to hold that the trial court’s finding of a substantial erosion was manifestly wrong. Id. Under the circumstances it appeared that no viable alternative to termination was available to the court. Id. The record supported a finding of serious neglect by the mother and the mother’s conduct resulted in consequences tantamount to abandonment. Id.

¶ 17. Returning to the facts of today’s case, Tonya no doubt has a history of drug abuse and addiction and has been diagnosed as bi-polar. However, testimony was presented to show her pursuit of regular treatment, her dedicated regimen of medication, and her sobriety for several years prior to the hearing. Evidence of these facts included drug screening reports showing her sobriety over the previous several years and improvement with her bi-polar disorder through medication and psychiatric care. From the record in this case, we are unconvinced that the evidence presented by LCDHS was clear and convincing to overcome the strong presumption of retaining parental rights in Tonya’s favor or to show “an extreme and deep-seated antipathy by the child toward the parent or ... some other substantial erosion of the relationship” between the two. Miss.Code Ann. § 93-15-103(3)(f). It is thus clear that for parental rights to be terminated under § 93-15-103(3)(f), any antipathy or erosion of the relationship must be “caused at least in part by the parent’s serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate, or prolonged imprisonment.” Id. Here, the circumstances of the case wholly fail to rise to such a level required by the statute to necessitate terminating Tonya’s parental rights to Valerie. Though Tonya may not be fit to be awarded custody, the termination of her parental rights is inappropriate and is not justified from the record before us and the applicable law. Testimony at the motion hearing, as well as evidence within the entire record, is certainly not lacking as to the mother’s rehabilitation efforts and that she in fact makes efforts to maintain contacts with her daughter by, among other things, writing her letters twice a week and sending her Christmas presents. The trial court’s decision to terminate Tonya’s parental rights is not supported by substantial, credible evidence. G.Q.A., 771 So.2d at 335. We thus likewise find this issue raised by Tonya to have merit.

¶ 18. Tonya also raises these additional issues: III. Whether visitation between the mother and the child should have been allowed and whether, if allowed, the visitation should have been restricted; IV. Whether the trial court failed to make findings of fact and conclusions of law which were supported by credible evidence and not manifestly wrong; V. Whether the trial court failed to correctly implement the proper statutory procedures.

¶ 19. However, based on our disposition of the issues already discussed, we deem it unnecessary to address these remaining issues. Instead, inasmuch as we have determined that the trial court committed error in terminating Tonya’s parental rights to Valerie, we deem it appropriate, based on the passage of time since the last trial court adjudication, to remand this case to the Lowndes County Youth Court to revisit the issue of visitation between Tonya and Valerie. Notwithstanding our remand for this purpose, we in no way make any inference as to the appropriate decision concerning visitation. Whether Tonya is even afforded visitation with Valerie, and if so, to what extent and on what terms, is a decision quite appropriately left to the trial judge on the scene. See Cul-breath v. Johnson, 427 So.2d 705, 708 (Miss.1983).

CONCLUSION

¶ 20. For the reasons discussed, we reverse the Lowndes County Youth Court judgment terminating Tonya’s parental rights to Valerie, and we remand this case to the Lowndes County Youth Court for further proceedings consistent with this opinion.

¶ 21. REVERSED AND REMANDED.

SMITH, C.J., WALLER, P.J., DIAZ, DICKINSON AND RANDOLPH, JJ., CONCUR. COBB, P.J., EASLEY AND GRAVES, JJ., NOT PARTICIPATING.

      . Social worker Debbie Sturgis stated in an affidavit pursuant to Miss.Code Ann. § 93-15-105(1) and Miss. R. Civ. P. 4 that the unknown putative father could not be found in Mississippi through diligent inquiry and that his post office address was unknown to the parties. The trial court found the father deserted without means of identification or abandoned the child, thus constituting grounds for termination of his parental rights.

      . Since a minor child is involved, fictitious names are used for the natural mother and the minor child in order to maintain confidentiality. Also, the child’s mother, the appellant here, was named differently in the original petition, but in her subsequent pleadings filed in this case, she used a name other than the name used by LCDHS in its initial petition.

      . Approximately one year later, the trial court would grant this Rule 60(b)(3) motion, based on a finding of newly-discovered evidence which could not have been discovered through due diligence in time to file a motion for a new trial.

      . As to LCDHS's notice of appeal, we are not required to consider an argument not brought forward in an appellate brief and not supported with citation to authority in support of the argument. Melton v. State, 723 So.2d 1156, 1159 (Miss.1998) (citing Grey v. Grey, 638 So.2d 488, 491 (Miss.1994)). See also Cook v. Mardi Gras Casino Corp., 697 So.2d 378, 382 (Miss.1997).


source: Caselaw Access Project

author: WALLER, Presiding Justice,

license: Public Domain

text:
    DEDEAUX UTILITY COMPANY, INC. v. The CITY OF GULFPORT, Mississippi, A Municipal Corporation.
    No. 2005-CA-00102-SCT.
    Supreme Court of Mississippi.
    Sept. 28, 2006.

      James H. Herring, J. Reilly Morse, attorneys for appellant.
    Gary White, Gulfport, attorney for ap-pellee.
    Before SMITH, C.J., WALLER, P.J., and RANDOLPH, J.
   WALLER, Presiding Justice,

for the Court.

¶ 1. Dedeaux Utility Company, Inc., is the holder of certificates of public convenience and necessity for certain water and sewer services in Harrison County, Mississippi. Eight years after the City of Gulf-port filed a petition for condemnation against Dedeaux, the matter went to trial in the Harrison County Special Court of Eminent Domain before a jury. De-deaux’s expert valued the utility plant at $9,025,500.00, and Gulfport’s expert valued the utility plant at $2,140,000.00. The jury returned a verdict for $3,634,757.00, and a judgment was entered in accordance with that verdict. Dedeaux appeals, and Gulf-port has filed a cross-appeal. Finding that the trial court erred, we reverse its judgment and remand this case for a new trial.

FACTS

¶2. In 1996, the City of Gulfport filed two separate petitions for condemnation: one against Orange Grove Utilities, Inc., and one against Dedeaux Utility Company, Inc. These two utility districts were privately owned and operated and were located on and served sites outside the Gulfport city limits, but annexations made by Gulf-port in 1991 had made the utility plants and their customers a part of the city. Under Miss.Code Ann. § 77-3-17 (Rev. 2000), Gulfport had the right to condemn such utility districts and incorporate them into its municipal system.

¶ 3. After Gulfport filed its petition against Orange Grove, the two parties agreed to acquire one appraisal — made by a mutually agreeable appraiser — to determine just compensation. As a result, Gulf-port agreed to pay Orange Grove $33,800,000.

14. Dedeaux refused Gulfport’s offer of $2,140,000, and the matter went to trial before a jury which awarded Dedeaux $3,634,757.00.

DISCUSSION

Dedeaux’s Direct Appeal I. CONTRIBUTIONS IN AID OF CONSTRUCTION.

¶ 5. Approximately 50% of De-deaux’s physical assets were contributed to Dedeaux by land developers, called “contributions in aid of construction.” These assets include pipelines installed by and paid for by the developers under their projects. When the pipelines were connected to the Dedeaux plant, the title to the pipelines were transferred to Dedeaux. Therefore, Dedeaux never paid any consideration for the contributed assets. Other contributions in aid of construction included easements, rights-of-way, wells, lift stations and tank sites.

¶ 6. Gulfport’s only expert witness who testified as to Dedeaux’s value was James M. Stokes, a certified public accountant and a certified valuation analyst; however he had never before determined the value of a utility system. Stokes testified that he used the “discounted cash flow method,” which is a method of calculating the value of an income stream. He used data from the Public Service Commission to determine Dedeaux’s income. The Public Service Commission establishes rate bases for all public utilities in the state. In fixing the rate bases, the Public Service Commission considers the following data:

(a) the reasonable original costs of the property used and useful, or to be used and useful within a reasonable time after the test period; (b) the portion of the cost which has been consumed by previous use recovered by depreciation expense; (c) the allowance for funds used during construction, ... and, on the equity component thereof, a rate of return granted on common equity ...; (d) any other elements deemed by the commission to be material in determining the rate base for rate-making purposes.

Miss.Code Ann. § 77-3-43(1) (Rev.2000). “Rates prescribed by the [Public Service Commission] shall be such as to yield a fair rate of return to the utility furnishing service, upon the reasonable value of the property of the utility used or useful in furnishing service.” Miss.Code Ann. § 77-3-33(1) (Rev.2000). Finally, “[t]he rate base shall not include property donated to such utility without any consideration nor shall operating expenses include depreciation of such donated property.” Miss.Code Ann. § 77-3-43(2) (Rev.2000). Therefore, under our statutory scheme, a public utility’s rate base is determined by calculating a fair rate of return on the reasonable value of the public utility’s assets. However, contributed property is not counted as one of the public utility’s assets; therefore, the rate of return fixed by the Public Service Commission excludes consideration of the value of contributed property.

¶ 7. Stokes testified that he based his valuation on the revenue being generated by the entire system, including contributed property and purchased property, but, since he also testified that he used data from the Public Service Commission as his sole source of information, his calculations did not take into consideration contributed property because, as set out above, the Public Service Commission does not consider contributed property. When Stokes testified that, in making his calculations, he only used data generated by the Public Service Commission, Dedeaux asked the trial court to exclude all of Stokes’s testimony. It argued that, since, under § 77-3-43(2), contributed property is not taken into account by the Public Service Commission when establishing rates for various utilities, no data from the Public Service Commission would be reliable. Dedeaux argues that, since some of its valuable assets were excluded in the Public Service Commission rate decisions, any appraisal based on Public Service Commission data would be too low.

¶ 8. A leading treatise on eminent domain states, “ ‘Contributed property’ must be included in the plant value even though such items are disregarded for purposes of rate-regulation.” Julius L. Sackman, Nichols on Eminent Domain § 15.07, at 15-48 (3d ed. rev.2000) (emphasis added). Sackman points out the distinction between valuation of a utility in rate-making cases and in condemnation cases: “when determining value in condemnation matters, greater weight seems to have been placed upon the fact of cost of reproduction, while in the rate-making cases, original cost is given predominant consideration.” Id. § 15.06[2], at 15-46 (footnotes omitted). Further,

[e]ven though such physical additions [i.e., contributions in aid of construction] to the plant are typically deeded over to the utility, and add value to the plant, they are not added to the rate base and thus do not generate additional rate charges, the modern theory of rate setting requires not “market” or “fair” value, but rather, a “fair return to the investors.” As such, contributions from customers are not direct investments of the utility owner, and are therefore excluded from rate base.
Note here that the property excluded from rate base (but which must be included in fair value) may be significant: fully depreciated machinery still functioning and useful; valuable assets, which have been depreciated on the books, but which may have appreciated in market value; and large amounts of contributed infrastructure owned and used by the utility owner, but not included in rate base. The importance of this point is that a utility valuation by whatever approach, premised on a regulatory rate base that excludes significant utility assets, almost without exception results in less than full or just compensation for all property taken.

Id. § 15.6[1], at 15^40 (footnotes omitted) (emphasis added).

¶ 9. Several courts have decided that data from state regulatory agencies are not reliable as proof of value of utility systems for eminent domain purposes. In Puget Sound Power & Light Co. v. City of Puyallup, 51 F.2d 688, 690 (9th Cir.1931), the Ninth Circuit stated that “the problem presented in a condemnation proceeding is essentially different from that presented to a rate-making body” because, in condemnation proceedings, the issue is “just compensation, which means ‘the market value’ of the property taken.” However, “the nature and character of the evidence to be considered by the ratemaking body ... ignores certain elements of value which go to make up a fair value of the property.” In Onondaga County Water Authority v. New York Water Service Corp., 285 A.D. 655, 139 N.Y.S.2d 755, 768 (1955), the court stated, “The complete lack of similarity between the original cost used in rate-making and the ‘just compensation’ for the purpose of taking needs no comment.”

¶ 10. The Florida Supreme Court has held that, “[sjince regulated earnings place no value on contributed property, it follows that capitalization of regulated earnings is unacceptable as a method of valuing appel-lees’ property in this proceeding.” Dade County v. Gen. Waterworks Corp., 267 So.2d 633, 641 (Fla.1972) (emphasis in original).

¶ 11. More recently, the Maine Supreme Judicial Court held, “The original source of the funds for construction of the Lakehause line [i.e., contributed funds in aid of construction] does not prevent the inclusion of the line in the valuation of the Water Company when the line was Water Company property under the law.” Rangeley Water Co. v. Rangeley Water Dist., 691 A.2d 171, 178 (Maine 1997). And, finally, in Washington Suburban Sanitary Comm’n v. Utilities, Inc., of Maryland, 365 Md. 1, 775 A.2d 1178, 1194 (2001), the Maryland Court of Appeals found that a statute mandating that appraisals for eminent domain purposes would not include contributions in aid of construction was unconstitutional.

¶ 12. We find that the trial court erred when it denied Dedeaux’s motion to strike Stokes’s testimony because his entire appraisal was based on data based on rates fixed by the Public Service Commission. Rule 702 of the Mississippi Rules of Evidence provides that expert testimony is admissible if: (1) the testimony will assist the trier of fact; (2) the witness is qualified as an expert; (3) the testimony is based upon sufficient facts or data; (4) the testimony is the product of reliable principles and methods; and (5) the witness has applied the principles and methods reliably to the facts of the case. In Mississippi Transportation Comm’n v. McLemore, 863 So.2d 31 (Miss.2003), we held that, to be admissible, expert testimony must be both relevant and reliable. Id. at 38. Stokes’s testimony was not based on sufficient facts and data and was therefore unreliable. Therefore, the trial court erred in admitting that testimony.

II. APPRAISALS OF FOUR PARCELS OF LAND.

¶ 13. Dedeaux called two expert witnesses to testify as to the plant’s value. After the first expert testified, Dedeaux proffered the testimony of William Allen Purvis, who had appraised only four parcels of land which were part of the plant. Improvements such as the installation of a water tower had been made to the parcels, but Purvis appraised only the value of the land without improvements. Gulfport objected, claiming that evidence of the values of individual assets are not relevant to determining the value of an on-going business; the trial court agreed and did not allow Purvis to testify.

¶ 14. Sackman states that the current value of property is an element in determining the value of a utility when it is being condemned by a governmental entity:

When the plant of a public service corporation is taken by eminent domain, the corporation is not limited to the value of its physical property, or to the cost of reproducing the same, but it is entitled to be paid for the value of its property and franchises taken together as a going concern and as parts of one working system. In reaching that value there are a number of tests, no one of which is conclusive, but each of which sheds some light upon the subject of the investigation. The elements ordinarily considered in ascertaining the value of the utility are the current value of the tangible property of the company, the earnings, both present and future, of the company, the “going value” of the plant, and the amount of money required to put the plant in good condition.

Sackman, § 15.07, at 15-48 (footnotes omitted). Sackman goes on to list other factors to be considered: earnings, id. at § 15.07[1]; cost of construction, id. at § 15.07[2]; reproduction costs, id. at § 15.07[3]; capital stock, id. at § 15.07[4]; and intangible property, id. at § 15.10. Finally, Sackman emphasizes the fact that, since all of these different factors must be considered, different methods of appraisals must be used and one method of appraisal will not be reliable for evaluating all of the different facts.

¶ 15. All elements of property should be considered in arriving at the valuation of a utility:

We hold that the measure of damages ... is the difference between the fair market value of the business as a going concern immediately before the damage and the fair market value of any assets remaining after the business closed and ceased as a public utility. In determining the before value of the utility business so damaged, every element of the plan or system which was reasonably required for the operation thereof and which entered into and remained a part thereof should be taken into account.
... The value of the utility as a going concern is obtained by taking a comprehensive view of each and all of the elements of property, tangible and intangible, and considering them as inseparable parts of the business entity.

City of Jackson v. Creston Hills, Inc., 252 Miss. 564, 172 So.2d 215, 221-22 (1965) (cited with approval in Bear Creek Water Ass’n v. Town of Madison, 416 So.2d 399, 401-02 (Miss.1982)) (emphasis added). Therefore, the value of the land upon which the utility plant was constructed should be considered as just one of the factors in determining just compensation.

¶ 16. We find that the trial court erred when it did not allow Dedeaux to put on proof of valuation of the four parcels of land without improvements.

III. HIGHEST AND BEST USE.

¶ 17. In eminent domain cases, the highest and best use of the subject property is a factor to be considered in determining what just compensation should be:

The rule is well settled that the present value of land sought to be condemned in eminent domain proceedings is not to be estimated simply with reference to the condition in which the owner has maintained it or for the use to which it is at the time applied, but with reference to any use to which it is reasonably adapted. The best or most valuable use to which the property, which is taken for the public use, is adapted should be considered.

Miss. State Hwy. Comm’n v. Brooks, 239 Miss. 308, 316-17, 123 So.2d 423, 427 (1960). Mississippi courts routinely consider highest and best use in eminent domain cases: Tunica County v. Matthews, 926 So.2d 209 (Miss.2006); Miss. Transp. Comm’n v. Nat’l Bank of Commerce, 708 So.2d 1 (Miss.1997); Miss. Transp. Comm’n v. Fires, 693 So.2d 917 (Miss.1997); Oughton v. Gaddis, 683 So.2d 390 (Miss.1996); Morley v. Jackson Redev. Auth., 632 So.2d 1284 (Miss.1994); Potters v. State Hwy. Comm’n, 608 So.2d 1227 (Miss.1992); Howell v. State Hwy. Comm’n, 573 So.2d 754 (Miss.1990); Dykes v. State Hwy. Comm’n, 535 So.2d 1349 (Miss.1988); Hudspeth v. State Hwy. Comm’n, 534 So.2d 210 (Miss.1988); Miss. State Hwy. Comm’n v. Viverette, 529 So.2d 896 (Miss.1988); State Hwy. Comm’n v. Havard, 508 So.2d 1099 (Miss.1987); Tenn. Gas Pipeline Co. v. Amos, 497 So.2d 438 (Miss.1986); Miss. State Hwy. Comm’n v. Franklin County Timber Co., 488 So.2d 782 (Miss.1986); Ellis v. Miss. State Hwy. Comm’n, 487 So.2d 1339 (Miss.1986); Miss. State Hwy. Comm’n v. Antioch Baptist Church, Inc., 392 So.2d 512 (Miss.1981).

¶ 18. Dedeaux argues that Gulfport’s evidence of highest and best use was unreliable because it assumed that the plant’s highest and best use was as a regulated utility. Until Gulfport assumed the operation of the plant, Dedeaux operated as a “for profit” utility which, under Miss. Code Ann. § 77-3-2 (Rev.2000), is regulated by the Public Service Commission. A governmental entity which owns and operates a utility is not regulated by the Public Service Commission, see Miss.Code Ann. § 77-3-1 (Rev.2000). Dedeaux argues that the plant’s highest and best use was as a non-regulated utility because it would not be under the control of the Public Service Commission.

¶ 19. If reliable evidence shows that regulation diminishes the value of a utility, the jury should consider an opinion that the utility’s highest and best use would be as a non-regulated utility. Ventures Northwest Ltd. P’ship v. State, 81 Wash.App. 353, 914 P.2d 1180, 1189 (1996). The converse is also true: if reliable evidence shows that regulation increases the value of a utility, the jury should consider an opinion that the utility’s highest and best use would be as a regulated utility. The determination of the utility’s highest and best use should be based on expert testimony offered under M.R.E. 702.

IV. GULFPORT’S REMARKS ON POSSIBLE TAX INCREASES.

¶ 20. Dedeaux complains about remarks by Gulfport’s counsel which implied that, the higher the award, the higher taxes will be. Dedeaux did not object to these remarks at trial and is therefore barred from appellate review. Nunnally v. R.J. Reynolds Tobacco Co., 869 So.2d 373, 378 (Miss.2004).

Y. EQUAL PROTECTION.

¶ 21. Dedeaux claims that its right to equal protection of the laws under the United States and Mississippi Constitutions (U.S. Const, amend. XIV; Article 3, Section 17 of the Mississippi Constitution of 1890) was violated because, while Gulfport settled its eminent domain claims against Orange Grove, a utility which was similarly situated, it did not offer Dedeaux similar terms. Gulfport paid Orange Grove $33,800,000 ($3,157.40 per customer for 10,705 customers) for its property and offered Dedeaux only $2,140,000 ($773.63 per customer for 2,763 customers). Also, Dedeaux claims that, since Gulfport and Orange Grove agreed on one appraiser and to abide by his or her recommendations, Gulfport should have entered into the same type of agreement with Dedeaux. Dedeaux points to the testimony of a Gulf-port Alderman which indicated that the disparity of treatment between Dedeaux and Orange Grove was based on political reasons, ie., spending as much money on Dedeaux as they spent on Orange Grove would have lessened city officials’ chances of being re-elected.

¶ 22. The trial court never ruled on the equal protection claim. Instead, it ruled on the admissibility of evidence pertaining to the Orange Grove settlement. An appellate court cannot review a matter which was not ruled upon by the trial court. Hemmingway v. State, 483 So.2d 1335, 1337 (Miss.1986) (where a trial court does not rule, there is nothing preserved for review by an appellate court) (citing Mart v. State, 248 Miss. 281, 159 So.2d 167 (1963)). Therefore, we do not address this claim.

VI. EXCLUSION OF EVIDENCE OF ORANGE GROVE SETTLEMENT.

¶ 23. When reviewing a trial court’s decision to allow or disallow evidence, including expert testimony, we are bound by an abuse of discretion standard of review. Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 34 (Miss.2003). The trial court ruled that any probative value of evidence of the Orange Grove settlement would be outweighed by its prejudicial nature. See M.R.E. 403. The trial court did not identify what factors it considered in weighing the probative value against any prejudicial nature.

¶24. We have long held that amounts paid in settlement of eminent domain claims are not admissible to prove just compensation. Eller Media Co. v. Miss. Transp. Comm’n, 900 So.2d 1156, 1158 (Miss.2005); Brown v. Miss. Transp. Comm’n, 749 So.2d 948, 957-58 (Miss.1999); State Hwy. Comm’n v. Hyman, 592 So.2d 952, 957 (Miss.1991).

Gulfport’s Cross-Appeal

VII. MOTION FOR CHANGE OF VENUE.

¶ 25. On cross-appeal, Gulfport complains that, since Miss.Code Ann. § 11-27-5 (Rev.2004) mandates that the petition for condemnation be filed in the jurisdiction where the subject property is situated, venue is jurisdictional, and it was error for the trial judge to grant De-deaux’s motion for change of venue. Gulf-port raises this claim for the first time on appeal; therefore it is proeedurally barred. Bennett v. Madakasira, 821 So.2d 794, 803 (Miss.2002).

VIII. INTEREST ON EMINENT DOMAIN JUDGMENTS

¶ 26. The trial court ordered that Gulfport pay Dedeaux eight percent (8%) per annum compounded interest on the amount of the award from the date of filing of the complaint until the date of entry of the judgment along with simple interest of eight percent (8%) per annum after the entry of the judgment. This order was based upon an interpretation of Miss.Code Ann. §§ 75-17-1 & -7 (Rev. 2000) found in Stovall v. Ill. Cent. Gulf R.R., 722 F.2d 190 (5th Cir.1984), a personal injury action. Section 75-17-1(1) states that “[t]he legal rate of interest on all notes, accounts and contracts shall be.... ” Section 75-17-7 states “[a]ll judgments or decrees founded on any sale or contract shall bear interest ...” The Fifth Circuit made a distinction between prejudgment interest which it held should be compounded because the section states interest is to be calculated “according to the actuarial method,” § 75-17-1(1), and post-judgment interest which it held should not be compounded because the statute states interest should be awarded “at the legal rate,” § 75-17-7.

¶ 27. Eminent domain judgments are not based on notes, accounts, sales or contracts. Because the eminent domain statutory scheme has a specific provision for interest on eminent domain judgments, sections 75-17-1(1) and 75-17-7 do not apply to eminent domain judgments. Miss.Code Ann. § 11-27-19 (Rev.2004) provides as follows: “Any judgment finally entered in payment for property to be taken shall provide legal interest on the award of the jury from the date of the filing of the complaint until payment is actually made.... ” Following the Fifth Circuit’s interpretation of “legal interest,” as set out above, “legal interest” is not compounded, but is, rather, simple interest. Furthermore, there is no distinction between pre-judgment interest and post-judgment interest.

¶28. Therefore, the trial court erred when it compounded the interest and when it made a distinction between pre-judgment interest and post-judgment interest.

CONCLUSION

¶ 29. We reverse the trial court’s judgment and remand for a new trial in accordance with this opinion.

¶ 30. ON DIRECT AND CROSS-APPEAL: REVERSED AND REMANDED.

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

      . Section 77-3-17 provides in part that "[a]ny municipality shall have the right to acquire by purchase, negotiation or condemnation the facilities of any utility that is now or may hereafter be located within the corporate limits of such municipality;.... ”

      . Our standard is based on the United States Supreme Court’s rulings in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). McLemore, 863 So.2d at 35, 39.

      . Utilities owned by governmental entities are not "for profit” utilities.

      . The trial court stated, "I do not choose to go down that road,” i.e., to consider De-deaux's equal protection claim.


author: ISHEE, J.,

text:
    Thomas A. BLANTON, Individually, and as Derivative of Flexlink LLC, and T. Lee Horne, III, Individually, and as Horne Partnership, Appellants v. Jenelle C. PRINS and Bradley, Curley, Asiano & McCarthy, Appellees.
    No. 2002-CA-01464-COA.
    Court of Appeals of Mississippi.
    Nov. 15, 2005.
    Rehearing Denied June 13, 2006.

      Dennis L. Horn, Madison, Wayne E. Ferrell, Jr., Jackson, attorneys for appellants.
    Monica Rene Morrison, S. Robert Hammond, Jr., Hatiesburg, Amanda Clearman Waddell, Gulfport, attorneys for appellees.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. In a legal malpractice suit by members of a limited liability company (“LLC”) against an attorney and firm representing the LLC, the Chancery Court of Forrest County held for the LLC’s attorney, Je-nelle Prins (“Ms.Prins”), and her law firm, Bradley, Curley, Asiano & McCarthy (“Bradley Curley”). Aggrieved by this decision, the LLC members, Blanton and Horne, appealed. Finding no error, we affirm.

FACTS

¶ 2. In 1995, Blanton, Dougal Prins, and Rocque Kramer (“Kramer”) formed Flex-link, LLC (“Flexlink”) in order to enter a contract with NATO to provide satellite communications in Bosnia. Kramer was appointed chairman of the executive committee of Flexlink, though Kramer, Blan-ton, and Dougal Prins had equal shares of the company. To fulfill its contract with NATO, Flexlink entered into a Memorandum of Understanding (“MOU”) with Interstate Electronics Corporation (“IEC”) for IEC to provide hardware for testing and implementing the communications system. Because the MOU required Flexlink to pay for the hardware, Flexlink negotiated a line of credit of $150,000 from Horne, in exchange for which Horne would receive five percent of the revenue stream from IEC to Flexlink. The MOU additionally included a net revenue split between IEC and Flexlink after recoupment of IEC’s investment and operating expenses, as well as providing the duration of the agreement (a maximum of three years).

¶ 3. Horne received all of the money he provided to Flexlink by the end of July 1996, and was thereafter paid five percent of the revenue stream paid to Flexlink.

¶ 4. In July 1998, Dougal Prins sold his interest in Flexlink to Kramer, thereby making Kramer the majority (2/3) shareholder. Dougal Prins thereafter died of a terminal illness. In December 1998, Horne filed a complaint in Florida against Flexlink and each of its members alleging his ownership interest in the company. Kramer, acting as chairman, hired Ms. Prins (Dougal Prins’ daughter) and Bradley Curley (Ms. Prins’ firm) to defend Flexlink against Horne’s action, though Blanton objected to such representation. On February 16, 1999, Blanton filed suit in the Chancery Court of Forrest County for an accounting of Flexlink. Ms. Prins represented Flexlink in that lawsuit as well. At some point during the course of these disagreements, Kramer removed all of Flexlink’s funds from Deposit Guaranty National Bank in Mississippi and placed them in James Monroe Bank in Arlington, Virginia.

¶ 5. In April 1999, Kramer became aware that IEC planned to terminate the MOU with Flexlink and did not intend to distribute the fourth quarter revenues. At this point, Ms. Prins, after consulting with other attorneys who were of the opinion that Flexlink would lose if the matter came to trial, drafted a demand letter to IEC, making a settlement offer. In June 1999, settlement negotiations between Flexlink and IEC began, primarily undertaken by Kramer on Flexlink’s behalf. IEC gave Flexlink a June 30, 1999 deadline to settle because of a pending merger/sale of the company. Ms. Prins alleged that on June 25, 1999, Gene Fair, associated counsel for Flexlink in Mississippi, telephoned Blan-ton’s attorney’s office and informed one of the attorneys there of the pending settlement with IEC. The ultimate settlement resulting from these negotiations (on June 29, 1999) was $775,000, which was subsequently wired to Flexlink’s account in Virginia.

¶ 6. Blanton alleged at trial that Kramer’s consulting agreement with IEC during the period of January 1, 1999 to June 29, 1999, when Kramer also served as chairman of Flexlink, constituted a conflict of interest, and that Ms. Prins had knowledge of such conflict. Blanton further alleged that Ms. Prins knew of Kramer’s funds transfer from Deposit Guaranty National Bank in Mississippi to James Monroe Bank in Virginia. Blanton additionally argued that information concerning the settlement between Flexlink and IEC was intentionally withheld from him by Kramer, and that Ms. Prins “aided and abetted” Kramer in concealing that information from him. Blanton alleges that Ms. Prins’ failure to notify him of the transfer of funds and failure to notify him of the settlement information constituted breach of her fiduciary duty (as counsel for Flex-link) to him (as a member of Flexlink). Blanton alleges that such breach of fiduciary duty by Ms. Prins constituted legal malpractice. Accordingly, Blanton brought both derivative and personal claims against Ms. Prins and Bradley Cur-ley for legal malpractice.

¶ 7. The chancellor sub judice stated that Blanton did not meet the requirements of Miss.Code Ann. § 79-29-1102 because he failed to provide written demand to Flexlink. The chancellor stated that, as a result, Blanton had no standing to bring a derivative claim on behalf of Flexlink. The chancellor further noted that if Blan-ton were allowed to sue on behalf of Flex-link, the benefits derived from the suit would go to Flexlink, thus benefitting Kramer as well, with whom Blanton had already settled at the time of trial. The chancellor opined that such would imper-missibly put Kramer “on both sides of the fence.” Thus, only Blanton’s personal claims against Ms. Prins and Bradley Cur-ley remained.

¶ 8. As to Blanton’s personal claims, the chancellor sub judice stated that no attorney-client relationship existed between Ms. Prins and Blanton so as to create any fiduciary duty. The chancellor also found that the efforts made by counsel for Flex-link and its management to advise Blanton of developments concerning the settlement were reasonable, if such notice and advice were even required. The chancellor stated that Blanton thus failed to meet his burden of proving breach of fiduciary duty even if such duty existed. As a result, the chancellor dismissed the case with prejudice.

¶ 9. Aggrieved by the chancellor’s decisions, Blanton and Horne appeal. Blan-ton’s assignments of error on appeal, while numerous and overlapping, may be summarized as follows: (1) whether the chancellor erred by failing to find a fiduciary duty owed to Blanton by Ms. Prins; (2) whether the chancellor erred by failing to find that Ms. Prins breached her fiduciary duties to members of the LLC and thus committed legal malpractice; (3) whether the chancellor applied an incorrect standard of law in failing to recognize standing of a member of an LLC to bring a derivative action under the Mississippi LLC Act.

¶ 10. Horne alleges that: (1) the chancellor erred in holding that Ms. Prins did not commit legal malpractice and did not breach her fiduciary duty to Horne; and (2) that the chancellor erred in concluding that Horne’s attorney could not participate in the trial sub judice.

STANDARD OF REVIEW

¶ 11. This Court “will not disturb the findings of a chancellor unless we find an abuse of discretion, an erroneous application of the law or a manifest error.” Bratvdy v. Howell, 841 So.2d 1175, 1179 (¶ 8) (Miss.Ct.App.2003). “If we find substantial evidence in the record to support the chancellor’s findings, we will not reverse.” Id. The standard of review for questions of law is de novo. Consolidated Pipe & Stipply Co. v. Colter, 735 So.2d 958, 961 (¶ 13) (Miss.1999).

ISSUES AND ANALYSIS

I. Whether the chancellor erred by failing to find a fiduciary duty owed to Blanton and Horne by Ms. Prins.

¶ 12. Blanton and Horne first allege that the chancellor erred in finding that Ms. Prins owed them no fiduciary duty as counsel for Flexlink. Blanton alleges that Kramer’s interests were in conflict with Blanton’s, and that when Ms. Prins became aware of this, she was under a duty to withdraw as Flexlink’s counsel because she also represented Kramer personally. Blanton further alleges that Ms. Prins owed him a duty to inform him of Kramer’s transfer of Flexlink funds from Mississippi to Virginia. In addition, Horne alleges that Ms. Prins failed to make disclosures required by the Mississippi LLC Act concerning the settlement with IEC. The chancellor at trial found no such fiduciary duties, and further stated that even if such duties existed, the efforts of counsel and management for Flexlink to convey settlement information to Blanton were reasonable.

¶ 13. We agree with the chancellor sub judice that no breach of fiduciary duty occurred even if such duties existed. As a result, this issue is moot.

II. Whether the chancellor erred by failing to find that Ms. Prins breached her fiduciary duties to members of the LLC and thus committed legal malpractice.

¶ 14. Blanton argues that the alleged fiduciary duties owed to him by Ms. Prins were breached when she “aided and abetted” Kramer in concealing from him information about the settlement with IEC and the transfer of funds from Mississippi to Virginia. Additionally, Blanton argues that Kramer’s interests were adverse to his, and that when Ms. Prins became aware of such conflict of interest, her failure to withdraw as counsel constituted breach of fiduciary duty and legal malpractice.

¶ 15. In order to recover in a legal malpractice action, the plaintiff has the burden of proving by preponderance of the evidence: (1) the existence of an attorney-client relationship, (2) negligent handling of the client’s affairs by the attorney, and (3) that such negligence proximately caused injury to the client. Luvene v. Waldrup, 903 So.2d 745, 748(¶ 10) (Miss.2005). To prove negligence in a legal malpractice case, the plaintiff must show that the attorney failed “to exercise the knowledge, skill, and ability ordinarily possessed and exercised by members of the legal profession similarly situated.” Id. For the proximate cause element of a legal malpractice action, “the plaintiff must show that, but for their attorney’s negligence, he would have been successful in the prosecution or defense of the underlying action.” Id.

¶ 16. Here, the chancellor sub ju-dice found that no attorney-client relationship existed between Blanton and Ms. Prins. We agree. Ms. Prins’s duty was to the entity, Flexlink, rather than to its individual members. As there is substantial evidence in the record supporting the chancellor’s finding as to this issue, we affirm as to this assignment of error.

¶ 17. We also hold that there was substantial evidence in the record to support the chancellor’s finding that no breach of duty occurred, even if such a relationship existed. There is evidence in the record that Gene Fair telephoned the office of Blanton’s attorney and communicated that settlement negotiations were taking place. Furthermore, Ms. Prins and Gene Fair testified that they were at all times during the matter at issue acting in what they thought to be the best interests of Flexlink.

¶ 18. As to Blanton’s assertions that uncontradicted expert testimony at trial established that Ms. Prins violated her fiduciary duties, we disagree. The expert testimony which allegedly uncontradictedly established Ms. Prins breach was based largely on hypotheticals posed by Blan-ton’s attorney at trial. Examination of the testimony shows that the chancellor’s findings as to this issue are supported by substantial evidence. For the above reasoning, we find that Blanton did not meet his burden in this case and thus affirm the findings of the chancellor as to this assignment of error.

III. Whether the chancellor applied an incorrect standard of law in failing to recognize standing of a member of an LLC to bring a derivative action under the Mississippi LLC Act.

¶ 19. Blanton next argues that the chancellor erred in holding that he did not have standing to bring a derivative claim under Mississippi Code Annotated §§ 79-29-101 to -1201, otherwise known as the Mississippi LLC Act. The Mississippi LLC Act states in § 79-29-1102:

No member may commence a derivative proceeding until:
(a) A written demand has been made upon the limited liability company to take suitable action; and
(b) Ninety (90) days have expired from the date the demand was made unless the member has earlier been notified that the demand has been rejected by the limited liability company or unless irreparable injury to the limited liability company would result by waiting for the expiration of the ninety-day period.

Miss.Code Ann. § 79-29-1102 (Rev.2001). The chancellor sub judice stated that Blan-ton’s failure to make demand rendered him without standing to bring a derivative suit on Flexlink’s behalf.

¶ 20. “[A]n action to redress injuries to a corporation ... cannot be maintained by the stockholder in his own name, but must be brought by the corporation because the action belongs to the corporation and not the individual stockholders whose rights are merely derivative.” Bruno v. Southeastern Services, Inc., 385 So.2d 620, 622 (Miss.1980). The same rule applies to LLC’s and their members. The purpose of the demand requirement is to allow the corporation (or LLC in this case) to take action, if it determines that such action is warranted, to prevent divisive legal action. See Longanecker v. Diamondhead Country Club, 760 So.2d 764, 769-70 (¶¶ 12-13) (Miss.2000).

¶21. Blanton argues that Mississippi Code Annotated § 79-29-802 (Rev.2001) does not require notice in this situation. Mississippi Code Annotated § 79-29-802 deals with dissolution of an LLC by decree of a chancery court whenever

[t]he managers or the members in control of the [LLC] have been guilty of or have knowingly countenanced persistent and pervasive fraud or abuse of authority or persistent unfairness toward any member, or the property of the limited liability company is being misapplied or wasted by such persons.

Miss.Code Ann. § 79-29-802 (Rev.2001). We do not see this behavior present in the case here. While some of the actions taken by Kramer in this case may be unsatisfactory from Blanton’s perspective, the conclusions of the chancellor as to this issue are supported by the evidence and evince no clear misapplication of the law. Thus, the chancellors conclusions as to this issue will not be overturned. Furthermore, Blanton settled all matters with Kramer prior to the beginning of the trial in this case. We find Blanton’s further arguments pertaining to his interpretations of the Mississippi LLC Act equally unpersuasive. As such, we affirm as to this assignment of error.

IV. Whether the chancellor erred in concluding that Horne’s attorney could not participate in the trial sub judice.

¶ 22. Horne challenges the decision of the chancellor not to allow Horne’s attorney to question witnesses in the trial sub judice. All parties were in agreement below that Horne’s claim existed only as to a derivative action on behalf of Flexlink because of Horne’s interest in the Flexlink revenue stream. Because we affirmed the chancellor’s decision, as explained above, that Blanton had no standing to bring a derivative claim on Flexlink’s behalf, this point is moot. We also note that Horne’s attorney at trial, Wayne E. Ferrell, Jr., agreed with the chancellor that he could ask questions through Blanton’s attorney by “whispering] to him and say[ing], ask [the witness] this.” As such, we find that Horne’s interests were fairly represented in the matter. For the above reasoning, we affirm as to this assignment of error.

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

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

      . The action began as a suit by Thomas A. Blanton (“Blanton”) for an accounting of Flexlink, LLC with numerous cross-claims and counter-claims against several defendants, but as of the time of trial, Lee Home, III ("Home”) and Blanton had settled their claims against the other defendants and only the claims against Ms. Prins and Bradley Cur-ley remained.

      . Whether Horne was actually a member of the LLC was initially a hotly disputed issue, but settlement of the matter was reached pri- or to trial, and such determination is not relevant to our analysis here.

      . Blanton’s and Horne's claims will be discussed together, unless otherwise necessary, for purposes of conciseness. Additionally, references to "Ms. Prins" will hereinafter refer to both Ms. Prins and the Bradley Curley firm.


author: MYERS, P. J., IRVING, J.,

text:
    Samuel SHAW a/k/a Samuel N. Shaw, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-IA-01462-COA.
    Court of Appeals of Mississippi.
    Dec. 6, 2005.
    Rehearing Denied May 30, 2006.

      Chuck McRae, William B. Kirksey, Minor F. Buchanan, Jackson, attorneys for appellant.
    Thomas L. Kesler, David Byrd Clark, Scott E. Rogillio, attorneys for appellee.
   MYERS, P. J.,

for the Court.

¶ 1. This case presents an interlocutory appeal from the Circuit Court of Madison County, Mississippi regarding the admissibility of blood evidence taken after a two-car collision and statements given by one of the parties at the scene of the accident.

STATEMENT OF FACTS

¶ 2. On December 14, 2002, at approximately 1:23 a.m. Joey Culotta and Dr. Sam Shaw had a two-car, head-on collision on Harbor Drive in the City of Ridgeland in Madison County, after the two left Shuck-er’s Oyster Bar. Subsequently this collision resulted in the death of Culotta. The accident involved Shaw, who was driving his Ford F-150 southbound when he collided with Culotta who was driving northbound in his Honda Accord. Culotta was accompanied by two passengers. Soon after the accident, the Ridgeland Police Department was notified that an accident had occurred and officers rapidly arrived on scene. The accident was worked by the Ridgeland Police Department, fire personnel, and American Medical Response ambulance services. The police officers involved in handling the accident included Dee Derrington, Eddie Addison, Ron Phillips, Howard Young, and John Neal, each of whom were employed by the Ridgeland Police Department. Upon their arrival at the scene, the officers determined that Culotta and his passengers had suffered substantial injuries and aided medical personnel in administering medical treatment. During this time, several officers talked with Shaw to determine the cause of the accident. It was during these conversations that Shaw indicated he was unaware of how the events transpired, as he had “blacked out” due to the head injury he sustained in the accident.

¶ 3. While conversing with the attendant officers, Shaw indicated that he remembered leaving Shucker’s Oyster Bar, where he had consumed five beers, according to the officers, or up to five beers according to Shaw’s account of the conversation, during approximately a two and one-half hour time period. Shaw was not placed under arrest, nor was he given a Breathalyser test, but rather he was transported via ambulance to Baptist Medical Center located in Jackson, Hinds County, Mississippi, where he sought medical treatment for a head injury he sustained in the accident. Officer Addison, who was in training with the Ridgeland Police Department, followed the ambulance transporting Shaw to Baptist Medical Center, where he maintained watch over Shaw at the hospital, though Shaw was not under arrest.

¶ 4. Culotta and his passengers were taken to the University of Mississippi Medical Center, also located in Jackson, Hinds County, Mississippi, for medical treatment. While both Shaw and Culotta were being treated, Officer Derrington returned to the Ridgeland police station and began preparing an affidavit and the required underlying facts and circumstances necessary to obtain a search warrant for a sample of Shaw’s blood. The warrant was ultimately issued at approximately 3:30 a.m. on December 14, 2002, by Ridgeland Municipal Judge Hal McCarley. As a re-suit, Officer Neal took the warrant to Baptist Medical Center, where the warrant was presented and a blood sample was taken from Shaw. After the blood sample was taken, Shaw was placed under arrest and later indicted for violating Mississippi Code Annotated § 63-11-30 (Rev.2004), operation of a motor vehicle under the influence of intoxicating liquor which results in the death of another.

¶ 5. On May 12, 2004, a suppression hearing was conducted at which Shaw’s counsel asked the trial judge to rule on several issues. The issues on which Shaw sought a ruling included the defense’s motions to suppress the results of Shaw’s blood alcohol content (BAC) test, to suppress Shaw’s statements made at the scene of the accident, to suppress the use of medical records obtained from Baptist Medical Center, a defense motion for additional discovery dealing with the handling of blood evidence by the Mississippi Crime Laboratory, and the State’s motion to suppress the results of Culotta’s BAC test. The trial court ruled that Shaw was entitled to further discovery pertaining to the state crime lab’s handling of blood evidence. The trial court further ruled that the motion to suppress the medical records obtained from Baptist Medical Center and the State’s motion in limine concerning the results of Culotta’s BAC test would be taken up at a later time. The trial court then requested briefs from both parties concerning the remaining two issues, the suppression of the results of Shaw’s BAC test and the suppression of statements made by Shaw at the scene of the accident, so that a ruling could be made soon thereafter.

¶ 6. On June 29, 2004, the trial court issued its ruling concerning the admissibility of Shaw’s BAC test results and Shaw’s statements made at the scene of the accident. The trial court ruled that each would be admissible. First, the trial judge addressed the admissibility of the statements Shaw made at the scene of the accident. The trial court found that the line of questioning by police was proper, as Shaw was not in custody during questioning; therefore, no custodial interrogation occurred and the statements were properly admissible.

¶ 7. Next, the trial court addressed the admissibility of Shaw’s BAC test results, ruling the results were properly admissible. The court reasoned that the circumstances were obviously not subject to the hot pursuit exception to the requirement of a valid warrant, but that the facts presented were somewhat similar to that exception, as Shaw was transported out of the jurisdiction to receive medical treatment with an officer following behind. The trial court reasoned that the officer’s jurisdiction over the matter would follow into Hinds County, as Shaw was being transported to Hinds County in order to obtain medical treatment. The trial court further found that probable cause existed at the accident scene, so that an arrest could have been made at that time for D.U.I. and a blood sample could have been acquired as a search incident to arrest, but instead the police made the decision to pursue the blood sample via a warrant. Due to this probable cause, the court found that Shaw could have been arrested for D.U.I. both in Ridgeland and in Hinds County, “given the reasons and circumstances the defendant left the jurisdiction of Ridgeland, and exigent circumstances existed to allow a warrantless search to obtain blood.” The trial court further opined that the officers acted in good faith in relying upon the validity of the warrant when serving the warrant without the aid of Hinds County law enforcement authorities. The trial court’s ruling is best summed up in its own words:

There was no wrongful activity on the part of the police here. They sought help from the district attorney’s office, obtained a valid search warrant and served it on the defendant in good faith, all when they could have arrested the defendant on the scene and drawn the blood incident to such arrest.

¶ 8. Aggrieved by the trial court’s ruling, Dr. Shaw appeals raising the following two issues:

I. WHETHER THE TRIAL COURT ERRED IN FINDING THE RESULTS OF SHAW’S BAC TEST ARE ADMISSIBLE.

II. WHETHER THE TRIAL COURT ERRED IN FINDING SHAW’S STATEMENTS MADE TO POLICE AT THE SCENE OF THE ACCIDENT ARE ADMISSIBLE.

LEGAL ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN FINDING THE RESULTS OF SHAW’S BAC TEST ARE ADMISSIBLE.

STANDARD OF REVIEW

¶ 9. The standard of review regarding a trial judge’s ruling at a suppression hearing is whether substantial credible evidence was present to support the trial judge’s finding when evaluating the totality of the circumstances. Price v. State, 752 So.2d 1070, 1073(¶9) (Miss.Ct. App.1999). Our standard of review regarding the admission of evidence in a criminal case is abuse of discretion. Harris v. State, 731 So.2d 1125, 1130 (¶ 29) (Miss.1999). “The discretion of the trial court must be exercised within the boundaries of the Mississippi Rules of Evidence.” Johnston v. State, 567 So.2d 237, 238 (Miss.1990).

DISCUSSION

¶ 10. The lower court in the case at bar allowed the admission of Shaw’s BAC test on the basis of a valid search warrant issued by Municipal Judge Hal McCarley, and on the Ridgeland Police officers’ probable cause developed at the scene of the accident. In reviewing the circuit court’s ruling, we find that the search warrant was invalid. When officers seek and obtain a search warrant, they are justified in relying on that warrant’s validity except in four situations: (1) if the judge was mislead by false statements in the affidavit which was made in support of the warrant; (2) the issuing judge abandoned his judicial role; (3) if the affidavit is so lacking probable cause that the belief of probable cause is unreasonable; and (4) the warrant is facially deficient, to the extent that an executing officer cannot reasonably presume validity. White, 842 So.2d at 571(¶ 15). Officer Derrington did not act in good faith in obtaining this search warrant, and mislead the judge with false statements in order to secure this warrant. Derrington signed a sworn affidavit on December 14, 2002, in order for the judge to issue a search warrant. In this affidavit, Derrington swore to two different statements that were untrue and he later testified under oath at a suppression hearing to the opposite of what he swore to in this affidavit. The first false statement was that the suspect has refused to submit to an analysis of his breath after having been offered an opportunity to submit. This statement was sworn to by Der-rington in the affidavit and later appeared in the search warrant. Derrington testified under oath that at no time to his knowledge was Shaw offered a breath analysis.

¶ 11. Derrington, also under oath and in his affidavit, stated that the suspect had been placed under arrest for D.U.I. This false statement also appears in the search warrant. Derrington again testified under oath at the suppression hearing that Shaw was not placed under arrest until after the search warrant was issued. An improper affidavit rendered the warrant void and would result in the exclusion of all evidence obtained thereby. Boyd v. State, 206 Miss. 573, 574, 40 So.2d 303, 304 (Miss.1949). Also because Derrington’s statements were knowingly inaccurate, this situation does not fall under the “good faith” exception to the Fourth Amendment’s warrant requirement. See White v. State, 842 So.2d 565, 571(¶ 15)(Miss.2003) (adopting good faith exception to Fourth Amendment warrant requirement); U.S. v. Leon, 468 U.S. 897, 922-23, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (enunciating good faith exception to Fourth Amendment warrant requirement).

¶ 12. The State asserts that even if the warrant was defective, Derring-ton still had probable cause for the breath analysis, because he placed Shaw under arrest prior to the test. Both Officers Derrington and Phillips stated under oath that Shaw was not arrested until after the blood was taken and they weighed the evidence. “Searches conducted outside the judicial process without prior approval by a judge or magistrate are per se unreasonable under the Fourth Amendment— subject to only a few specifically established and well-delineated exceptions.” Katz v. U.S., 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Shaw did not consent to the breath analysis, the police officers were not in hot pursuit of Shaw since he was simply being transported by ambulance to Baptist Hospital, and as Der-rington testified under oath Shaw was not under arrest. See Id. at 358, 88 S.Ct. 507.

¶ 13. Our supreme court has held that probable cause developed by an officer subsequent to an unlawful search and seizure of the defendant’s blood could not retroactively cure such prior violation. McDuff v. State, 763 So.2d 850, 856(¶ 18) (Miss.2000). “The Fourth Amendment prohibition against unreasonable search and seizure applies when an intrusion into the body — such as a blood test — is undertaken without a warrant, absent an emergency situation.” Cole v. State, 493 So.2d 1333, 1336 (Miss.1986) (quoting Schmerber v. California, 384 U.S. 757, 777-71, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)). There was no present emergency situation in this instance which would justify this blood test. We disagree with the trial court’s ruling that Shaw being transported to the hospital resulted in hot pursuit. Shaw was not fleeing, and Derrington had time to secure a warrant even though it was invalid. Officers cannot deliberately create the exigent circumstances in an attempt to circumvent the requirements of the Fourth Amendment. U.S. v. Webster, 750 F.2d 307, 327 (5th Cir.1984); U.S. v. Thompson, 700 F.2d 944, 950 (5th Cir.1983); U.S. v. Scheffer, 463 F.2d 567, 574-75 (5th Cir. 1972).

¶ 14. The United States Supreme Court has stated, “omission of such authorization bypasses the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far less reliable procedure of an after-the-event justification for the search ... and bypassing this neutral predetermination of the scope of the search leaves individuals secure from Fourth Amendment violations only in the discretion of the police. Katz, 389 U.S. at 359, 88 S.Ct. 507; Beck v. State of Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). Since we hold the search warrant invalid and no exigent circumstances were present, there is no need for us to discuss the validity of the jurisdiction issue as it pertains to the service of the warrant on Shaw. Therefore, based on the foregoing reasons, we reverse the trial court’s ruling on this issue.

II. WHETHER THE TRIAL COURT ERRED IN FINDING SHAW’S STATEMENTS MADE TO POLICE AT THE SCENE OF THE ACCIDENT ARE ADMISSIBLE. STANDARD OF REVIEW

¶ 15. When reviewing a trial court’s ruling on a motion to suppress, we must assess whether substantial credible evidence supports the trial court’s finding considering the totality of the circumstances. Price v. State, 752 So.2d 1070, 1073(¶ 9) (Miss.Ct.App.1999) (citing Magee v. State, 542 So.2d 228, 231 (Miss.1989)). Also, the admissibility of evidence lies within the trial court’s discretion and will only be reversed if this discretion is abused. Williams v. State, 823 So.2d 1210, 1211(¶ 4) (Miss.Ct.App.2002). “The discretion of the trial court must be exercised within the boundaries of the Mississippi Rules of Evidence.” Johnston v. State, 567 So.2d 237, 238 (Miss.1990).

DISCUSSION

¶ 16. Shaw suggests that his verbal responses at the scene of the accident should be suppressed as not reliable because he was disoriented, confused, and suffering from undisputed trauma of shock and retrograde amnesia. Shaw argues that his verbal responses would produce the danger of unfair prejudice, confusion of the issues, and the potential for misleading the jury and should be excluded under Mississippi Rule of Evidence 403. In considering whether such evidence is prejudicial to the accused, the trial court must weigh the probative value of the evidence against the prejudicial impact to Shaw and determine whether the evidence’s probative value is substantially outweighed by the danger of unfair prejudice. Brown v. State, 749 So.2d 204, 210(¶ 10) (Miss.Ct. App.1999). The trial court is given “broad discretion” when weighing these factors. Id.

¶ 17. The State asserts that this case is almost identical to Hopkins v. State, 799 So.2d 874 (Miss.2001). However, we disagree. The defendant in Hopkins asserted that he was in custody when he made the statements that the State wanted admitted into evidence, and he was not given the Miranda warning. Id. at 877-79(¶ 6); Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The supreme court ruled this was a non-custodial setting; therefore, Miranda warnings were not required. Id. at 878(¶ 8). Here Shaw does not claim he was in custody; he simply argues that his statements have more prejudicial value than probative value and require exclusion according to Mississippi Rules of Evidence 403. Although Shaw does not explain how such statements are more prejudicial than probative, Shaw’s statements clearly have probative value. We find that the trial court did not, therefore, abuse its discretion in allowing the statements to be admitted into evidence. We, therefore, affirm the trial court’s denial of the motion to suppress Shaw’s statements made to the police at the scene of the accident.

CONCLUSION

¶ 18. We reverse the trial court’s ruling denying the motion to suppress Shaw’s blood test results, and we affirm the trial court’s ruling admitting Shaw’s statements made at the accident scene.

¶ 19. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT IS REVERSED IN PART AND AFFIRMED IN PART. ALL COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.

KING, C.J., LEE, P.J., CHANDLER AND ISHEE, JJ., CONCUR. IRVING, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY BRIDGES, GRIFFIS AND BARNES, JJ.

IRVING, J.,

CONCURRING IN PART, DISSENTING IN PART:

¶ 20. I agree with part II of the majority opinion. However, I cannot agree that the results of Dr. Shaw’s blood test should be suppressed because the affidavit in support of the search warrant, which led to the blood analysis, allegedly contained false statements of sufficient magnitude to invalidate the search warrant. Therefore, I respectfully dissent from part I of the majority opinion. I would affirm the ruling of the trial court in toto.

¶ 21. The majority finds that the search warrant issued for an analysis of the alcohol contents of Dr. Shaw’s blood was invalid because Officer Derrington made two false statements in the affidavit that he submitted in support of the search warrant. The false statements were: “the suspect (Dr. Shaw) has refused to submit to any analysis of his breath after having been offered an opportunity to submit,” and “the suspect had been placed under arrest for DUI.” Majority Opinion at (¶¶ 10-11). As to the first allegedly false statement, it is true that Dr. Shaw had not refused to submit to an Intoxilyzer test prior to the application for the search warrant, but he had refused to submit to a blood test as shown by the following colloquy between Officer Ron Phillips and the prosecutor during the suppression hearing:

Q. And what kind of conversation did you have with Mr. Shaw at that point?
A. As I said, just basic accident investigation questions, trying determine what happened.
Q. And if I recall, what kind of questions and what kind of answers did you get?
A. Basically he did not know what happened due to him blacking out. That was really the only answer I got from him.
Q. Did you request anything of him ?
A. Yes, sir, I did.
Q. What was that?
A. I requested a blood sample.
Q. What was his response?
A. He refused.
Q. What did you do at that point I time?
A. At that time, I notified Sergeant John Neal and Sergeant Howard Young, being supervisors and the accident investigator for the situation.
Q. What law enforcement agency are they employed by?
A. By the city of Ridgeland Police Department.
Q. Where did you notify them from? Where physically were you?
A. I was at the Baptist Hospital.
Q. Any particular portion of Baptist Hospital?
A. The emergency room.
Q. Was Mr. Shaw in your sight as you communicated with the other officers?
A. He was not in my sight. He was in Officer Eddie Addison’s sight.
Q. Generally you said the emergency room. If you know, where was Mr. Shaw?
A. He was in one of the emergency rooms, trauma unit rooms.
Q. Treatment room?
A. Yes, sir.
Q. Do you know about what time it was when you contacted John Neal and Howard Young?
A. No, sir, I don’t.
Q. Do you recall how long you had between at UMC?
A. Approximately and hour, 45 minutes to an hour.
Q. Again, why did you contact them?
A. Why did I contact them?
Q. You contacted them, correct?
A. I’m sorry.
Q. What did you ask, if anything?
A. I let them know the situation, and it loas determined at that time that we would get a search warrant to draw the blood.

¶ 22. On the point of Dr. Shaw’s refusal to submit to a blood analysis, Officer John Neal gave the following testimony:

Q. Were you involved in any other activity regarding Mr. Shaw?

A. At that point, we felt the need that we would probably need [sic] to draw Mr. Shaw’s blood. And I believe Officer Phillips had gone to Baptist Hospital at that point and had contacted Sergeant Young about Mr. Shaw’s refusal to provide a blood sample, we began working on a search warrant.

¶ 23. While it appears accurate that the formal arrest of Dr. Shaw did not take place until after the search warrant was issued and the blood drawn, it is also accurate that the Ridgeland Police Department had an officer follow the ambulance transporting Dr. Shaw to Baptist Memorial and stand guard in the doorway of the emergency room where Dr. Shaw was placed.

¶ 24. Notwithstanding the technical misstatement in the affidavit regarding when Dr. Shaw was arrested, the critical inquiry is whether the Ridgeland police officers had probable cause to believe that Dr. Shaw was driving under the influence at the time of the accident. If so, he could be compelled to submit to a blood test for analysis for alcohol content. See Miss. Code Ann. § 63-11-8 (Rev.2004) as construed by McDuff v. State, 763 So.2d 850, 856(¶ 19) (Miss.2000). There is no doubt that the officers had probable cause to believe that Dr. Shaw had operated his vehicle while under the influence of an intoxicating substance. To prove, I turn to a consideration of the affidavit and statement of underlying facts and circumstances which were presented to the judge who issued the search warrant.

¶25. Officer Derrington used a pre-printed form affidavit. The two statements, which are alleged to have been false, were already preprinted. For whatever reason, Officer Derrington failed to strike through those two preprinted statements. I quote the affidavit, together with the statement of underlying facts and circumstances, in the form as submitted to the judge:

AFFIDAVIT FOR SEARCH WARRANT
THE STATE OF MISSISSIPPI COUNTY OF MADISON
This day personally appeared before me, the undersigned Judicial Officer of said County the following persons:
DEE DERRINGTON, OF THE RIDGELAND POLICE DEPARTMENT known to me as a credible person, who, after having been first duly sworn, depose and say:
1. That upon personal observation and or information and belief, affiant has good reason to believe that a violation of the Mississippi Implied Consent law, Sec. 63-11-30 (1972) has presently been committed by a certain person in this jurisdiction known as SAMUEL N. SHAW (suspect hereinafter)
2. That the basis for such belief is contained in the underlying facts and circumstances page attached hereto and incorporated herein as exhibit “a”.
3. That the above stated crime(s) remain under investigation.
4. That the above mentioned suspect has refused to submit to an analysis of his breath after having been offered an opportunity to submit to the same.
5. The suspect has been placed under arrest for D.U. I.
6. That in order to conduct a more complete investigation into the facts of the above stated crime(s), a search is necessary of the blood of the suspect for testing and analysis of his blood for blood alcohol and other substance content.
7. The person to be searched is SAMUEL N. SHAW, W7M, DOB: 06-01-46
8. That the things officers seek to search for are: alcohol, cocaine, methamphetamine, other controlled or non-controlled substances which may impair the suspects driving ability.
WHEREFORE, affiant request that a search warrant issue authorizing a search of the above described room, at any time this date.
Dee Derrington
AFFIANT
SWORN TO AND SUBSCRIBED BEFORE ME, THE 14 day of December, 2002,1995.
M-AQI-ST-RAT-ES-S-I-GNAT-U-RE
Ridgeland Municipal Judge
exhibit “a”
UNDERLYING FACTS AND CIRCUMSTANCES
On or about 14 day of December, 4995 2002, the suspect, Samuel Shaw was apprehended for the offense driving while under the influence of intoxicating liquor. The offense occurred @ or about 01:15 o’clock A.M. The defendant has been place under arrest. It is now approximately 3:30 o’clock a.m. Evidence of intoxication and or impairment from other substance is dissipating quickly. The suspect has refused chemical analysis of his breath.
The basis for my belief that the suspect was operating a motor vehicle in violation of M.C.A. 63-11-30 is as follows:
(Officer must below, type or write in narration of facts of this case.)
The driver, Samuel Shaw, had an smell of an intoxicating beverage omitting from his person. Shaw stated that he had drank five beers at Shuek-ers since 11:00 p.m. Shaw was off balance and confused about the accident. Shaw stated that he passed out before the accident.
Additionally, the following were observed: (check all that apply)
Suspect had:
X bloodshot eyes X slurred speech X smelled of alcohol
Suspect:
_ failed all field sobriety tests given
_ failed some of the field sobriety tests given
X admitted to having recently consumed alcoholic beverage
Officer observed:
_ alcoholic beverage containers in or near suspects vehicle
X suspect failed to maintain proper control of vehicle
Dee Derrington
Officer’s Signature

¶ 26. On these facts, the officers clearly had probable cause to believe that Dr. Shaw had operated his vehicle while under the influence of an intoxicating substance. Therefore, I see no basis for suppressing the results of Dr. Shaw’s blood test, even if the affidavit in support of the search warrant contained two statements that were inaccurate. It cannot be said that either of the statements was the primary basis for the issuance of the warrant. Additionally, Mississippi law provides that an officer must secure a blood test of any individual involved in a motor vehicular accident death, provided the officer has probable cause to believe the driver of the vehicle was operating his vehicle while intoxicated. See Miss.Code Ann. § 63-11-8 (Rev.2004) as construed by McDuff, 763 So.2d at 856(¶ 19). Therefore, for the reasons presented, I respectfully dissent.

BRIDGES, GRIFFIS AND BARNES, JJ., JOIN THIS SEPARATE WRITTEN OPINION.

      . Dr. Shaw is a medical doctor. At the time of the test, more than three hours after the accident, Dr. Shaw's blood alcohol concentration was .09%.

      . At the time of the suppression hearing, Officer Derrington was employed with the Vicksburg Police Department.