text:
    Douglas LONG, Richard Long, Earl Long, and the Heirs at Law of Edward Long, who are Joyce Long, individually, Crystal Long, a minor, Edward Long, Jr., a minor, and Christopher Long, a minor, who are all represented by their Mother and Natural Guardian, Joyce Long; The Heirs at Law of David Long, Who are John Colby Long, a minor, represented by his Mother and Natural Guardian, Teri Long Scarborough, and Corey Long v. MEMORIAL HOSPITAL AT GULFPORT and Thomas Vaughan, M.D.
    No. 2006-CA-00875-SCT.
    Supreme Court of Mississippi.
    Oct. 11, 2007.
    Rehearing Denied Dec. 13, 2007.

      William B. Weatherly, Gulfport, attorney for appellants.
    Patricia K. Simpson, Gulfport, Gaye Nell Currie, Lynda C. Carter, Nicole C. Huffman, Jackson, attorneys for appellees.
    Before WALLER, P.J., EASLEY and CARLSON, JJ.
   WALLER, Presiding Justice, for the Court.

¶ 1. Lori McKinney filed a medical malpractice lawsuit against Memorial Hospital at Gulfport on behalf of herself and all the wrongful death beneficiaries of Huey P. Long in the First Judicial District of the Circuit Court of Harrison County, Mississippi, on October 17, 2002. She caused no summons to issue from the circuit court in relation to this filing. See Miss. R. Civ. P. 4(a). The next day, Douglas Long, Edward P. Long and Richard Long, without knowledge of the McKinney suit, filed a malpractice lawsuit based on the same event in the same court. They caused no summons to issue from the court at that time. This complaint was amended shortly thereafter to add Earl Long as a plaintiff. Again, no summons issued from the circuit court. Upon discovering the McKinney lawsuit, the Longs moved the circuit court to consolidate the actions. Initially, the circuit court denied consolidation and dismissed the Long action. Upon reconsideration, the court reversed its decision, granting consolidation and allowing the Longs to participate in the McKinney suit. The circuit court, again on reconsideration, ultimately denied the motion to consolidate and dismissed the Long complaint.

¶ 2. The interlocutory appeal from this judgment took the form of Long v. McKinney, 897 So.2d 160 (Miss.2004). This Court held that subsequent filings in wrongful death actions shall be dismissed, effectively affirming the circuit court’s denial of consolidation and dismissal of the Long lawsuit. The opinion reversed the portions of the circuit court’s order allowing McKinney and her counsel sole control of the proceedings on behalf of the plaintiffs and prohibiting participation by counsel for the Longs. Id. at 173-74, 178. The mandate of this opinion from this court issued April 14, 2005, directing the matter be remanded to the circuit court for further proceedings.

¶ 3. On June 3, 2005, a summons for Memorial Hospital issued from the circuit court and was served three days later on Memorial Hospital’s registered agent for process. The Longs then filed an Amended Complaint on July 26, substituting Thomas Vaughan, M.D., for a John Doe defendant. Summons for Vaughan issued the same day. Memorial Hospital filed a motion to dismiss on August 4, and its Answer on August 8, 2005. On November 23, the circuit court granted the Longs an extension of time to serve process on Vaughan. Service was accomplished on Vaughan on January 5, 2006. The circuit court granted Memorial Hospital’s motion to dismiss, without prejudice, on January 9. Vaughan filed a motion to dismiss on February 7, along with his Answer. The court denied reconsideration of its order dismissing Memorial Hospital, and granted Vaughan’s motion to dismiss, with prejudice. It is from these orders that the Longs now appeal.

FACTS

¶ 4. The pertinent facts are uncontested. Huey P. Long died on October 8, 2002. Lori McKinney filed this medical malpractice action against Memorial Hospital at Gulfport on October 17, 2002. On September 19, 2003, this Court entered an order granting interlocutory appeal, stating the statute of limitations would be tolled during the pendency of the appeal and imposing a stay on the proceedings. This matter was remanded on April 15, 2005. No summons issued for Memorial Hospital until June 3, 2005. Process was served on Memorial Hospital three days later. The plaintiffs then filed an Amended Complaint naming Thomas Vaughan, M.D., as a defendant. Summons for Vaughan issued July 26, 2005, and was served on January 5, 2006. The trial court granted Memorial Hospital’s motion to dismiss for the plaintiffs’ failure to serve process upon it within 120 days of filing the lawsuit. The court later granted Vaughan’s motion to dismiss.

STANDARD OF REVIEW

¶ 5. This Court leaves to the discretion of the trial court the finding of fact on the existence of good cause or exeusa-ble neglect for delay in serving process under Rule 4(h). Where such discretion is abused or is not supported by substantial evidence, this court will reverse. However, where the trial court’s judgment involves the interpretation of legal principles, this court will conduct a de novo, or plenary, review of its interpretation, and reverse where it finds the trial court in error. Bennett v. McCaffrey, 937 So.2d 11, 14 (Miss.2006). See also Montgomery v. SmithKline Beecham, 910 So.2d 541, 544-45 (Miss.2005); Holmes v. Coast Transit Auth., 815 So.2d 1183, 1185 (Miss. 2002).

DISCUSSION

¶ 6. The circuit court’s judgment dismissing Memorial Hospital without prejudice relied upon the facts that (1) neither McKinney nor the Longs caused a summons to issue from the circuit court or process to be served upon Memorial Hospital until almost three years after the filing of the original complaint, (2) no extension of time was requested or granted, and (3) there was no evidence Memorial Hospital attempted to evade service of process. The circuit court’s order dismissing Vaughan found the statute of limitations barred the claims against him. We find the circuit court’s judgment dismissing Memorial Hospital is supported by substantial evidence and it is, therefore, affirmed. For the reasons discussed below, we reverse the summary judgment granted in favor of Vaughan and remand this matter for further proceedings.

I. WHETHER THE CIRCUIT COURT ERRED IN DISMISSING THE CLAIMS AGAINST MEMORIAL HOSPITAL AT GULF-PORT.

¶ 7. The Longs argue the circuit court erred in granting Memorial Hospital’s motion to dismiss because (1) it applied a strict rule that the complete failure to attempt service before the expiration of 120 days warranted dismissal, (2) the circuit court’s orders forming the basis of the first appeal prohibited the Longs from having the McKinney complaint properly and timely served until after this Court’s April 14, 2005, mandate on the first appeal, and (3) the circuit court’s order dismissed the entire action, not simply the claims against Memorial Hospital. Memorial Hospital and Vaughan respond that the circuit court correctly applied Rule 4(h) to dismiss Memorial Hospital because good cause cannot be shown where no summons issued and no attempt to serve process occurred before June 6, 2005. They further contest the Longs’s arguments that the court’s rulings prohibited the Longs from serving process and the circuit court erred in dismissing the entire matter. Finally, Memorial Hospital argues that the circuit court did not have subject matter jurisdiction over it due to the fact that McKinney failed to comply with the Mississippi Tort Claims Act before filing the lawsuit against it, and all claims against it are now barred by the one-year statute of limitations found in the Tort Claims Act.

¶ 8. At the outset, it must be observed that the Longs failed to name Memorial Hospital as a defendant to their own lawsuit. In fact, only fictitious parties were named as defendants. The Longs are now attempting to obtain relief by arguing that the McKinney complaint, which named Memorial Hospital as a defendant, should not have been dismissed for failure to serve process.

¶ 9. Rule 4(h) of the Mississippi Rules of Civil Procedure requires a summons and a copy of the complaint to be served upon a defendant “within 120 days after the filing of the complaint.” If this is not done, the party responsible for service must show “good cause why such service was not made within that period,” otherwise “the action shall be dismissed as to that defendant without prejudice.” Miss. R. Civ. P. 4(h). In applying this rule within its order dismissing Memorial Hospital, the circuit court concluded, “As a matter of law, a plaintiff can never demonstrate good cause and diligence where no attempt to serve process was made.” In reaching this conclusion, the court quoted and paraphrased Montgomery v. SmithKline Beecham Corp.: “ ‘Good cause’ can never be demonstrated where the plaintiff has not been diligent in attempting to serve process.” Montgomery, 910 So.2d 541, 545 (Miss. 2005) (citing Bang v. Pittman, 749 So.2d 47, 52 (Miss.1999)).

¶ 10. The Longs argue that Mississippi case law allows good cause to be shown in absence of any attempt to serve process, contrary to the absolute rule stated by the trial court, and that good cause existed due to the previous orders of the circuit court granting dismissal of their suit. This Court in Powe v. Byrd examined a situation where a plaintiff made little, if any, effort to serve process on a defendant within the time allowed by Rule 4. Powe, 892 So.2d 223 (Miss.2004). There, a plaintiff filed a medical malpractice action one week before the two-year anniversary of the death of the injured party. The process server was not instructed by plaintiffs counsel to attempt to serve process on the defendant until the final day for service under Rule 4. Service was not accomplished until after the time for service expired. Id. at 225. When the trial court dismissed the original action without prejudice, the plaintiff filed a second complaint. The trial court ruled the action stated by the second complaint to be time-barred and dismissed it with prejudice. Id. This Court considered the plaintiffs claims that she waited for an expert’s opinion as to the merits of her action before attempting service. It affirmed the circuit court’s judgment, stating “We find that waiting until the last day to serve process on a defendant does not constitute good cause. Powe knew that it was of the utmost importance to have the process served on or before that day and did not accomplish same.” Id. at 227.

¶ 11. Other, similar cases include Bacou-Dalloz Safety, Inc. v. Hall, 938 So.2d 820 (Miss.2006) (this Court considered and found good cause lacking in plaintiffs two attempts at service: the first attempt at service of original complaint was made by certified mail upon out-of-state corporation at the wrong address and attempted only once within 120-day period; the second attempt at service occurred long after 120-day period expired); Triple “C” Transport, Inc. v. Dickens, 870 So.2d 1195 (Miss.2004) (this Court affirmed dismissal where the plaintiffs complete failure to attempt service on a defendant due to an identification problem with a co-defendant did not amount to good cause or excusable neglect); and Holmes v. Coast Transit Authority, 815 So.2d 1183 (Miss.2002) (this Court considered whether ongoing settlement negotiations constituted good cause for failure to serve, and ruled in favor of dismissal where plaintiffs first attempt at service was improper and no further attempts to serve within 120 days followed).

¶ 12. We agree with the Longs that there is no concrete rule in Mississippi law that good cause automatically will be found lacking when a plaintiff completely fails to cause a summons to issue for a defendant or does not attempt at all to serve a defendant within 120 days of the filing of her lawsuit. This Court’s precedent indicates the reasons offered to demonstrate diligence in light of the failure to serve will be, and should be, reviewed even where the plaintiffs attempts at service are negligible or nonexistent. Even the cases offered by Memorial Hospital and Vaughan for the rule that such a review is unnecessary demonstrate this Court will at least examine the reasons offered before finding them insufficient.

¶ 13. The circuit court’s order approximates, but ultimately misstates, the rule in Montgomery and Bang. In Montgomery, this Court stated and applied the rule that it will consider the plaintiffs diligence and, finding it lacking, will never find good cause. Montgomery, 910 So.2d at 545, 547-48. In Bang, this Court applied the same procedure to the same result. Bang, 749 So.2d at 51-52. In both cases, summons issued before the expiration of time to serve, so these cases only suggest the resolution of the issue. On the other hand, in this case, the circuit court simply asked whether the plaintiff attempted service of process and, finding no evidence of an attempt, found no good cause existed. The court’s order granting dismissal does not reflect due consideration of the reasons offered by the Longs for their failure. Rather, it appears as if the trial court’s analysis simply relied upon its incorrect paraphrase of the rule from Montgomery. Since we agree that the Longs’s reasons for their failure to serve process must be examined, they are examined below.

Good cause analysis

¶ 14. The Longs offer this matter’s winding procedural history and the restrictions to their participation to show good cause why service of process was not completed on Memorial Hospital until almost three years after Huey Long’s death. The transcript of the hearing demonstrates the Longs offered to the circuit court many of the same reasons for failing to serve Memorial Hospital as they now offer on appeal. A review of that history, coupled with a discussion of the law, follows.

¶ 15. Lori McKinney filed her lawsuit against Memorial Hospital on October 17, 2002. She gave notice of claim to Memorial Hospital the same day she filed her lawsuit, contrary to Mississippi law. Miss.Code Ann. § 11-46-11(1) (Rev.2002); Univ. Med. Center v. Easterling, 928 So.2d 815 (Miss.2006) (requiring a plaintiff to wait the required number of days before filing tort claims suit; if suit is filed too early, this Court requires dismissal); Wright v. Quesnel, 876 So.2d 362 (Miss. 2004). But see City of Pascagoula v. Tomlinson, 741 So.2d 224 (Miss.1999) (suit filed two weeks after notice of claim was not dismissed; prior interpretations of Tort Claims Act found appropriate remedy to early filing of lawsuit was request for stay by defendant, not dismissal). Mississippi law now requires strict compliance with the ninety-day notice requirement in the Mississippi Tort Claims Act. Miss.Code Ann. § 11-46-11(1); Easterling, 928 So.2d at 819. Even if we were to apply the rule from Tomlinson to the facts before us, McKinney still failed to timely serve Memorial Hospital, and this failure is binding on the Longs.

¶ 16. Applying the holding of the first appeal of this matter, the Long lawsuit, filed the day after the McKinney lawsuit, was of no effect at the moment of its filing. Long, 897 So.2d at 174. This matter proceeded under the McKinney complaint with McKinney acting as fiduciary for the Longs’s claims. McKinney was free to effect service on Memorial Hospital during the interval between filing her complaint and the interlocutory appeal. The Mississippi Tort Claims Act gives a governmental entity defendant ninety days from the filing of a notice of claim to consider the claim before a lawsuit can be maintained. Miss.Code Ann. § 11-46-11(1) (Rev.2002). Assuming, for argument’s sake, the circuit court entered a stay in the McKinney suit for ninety days after the date Memorial Hospital received the notice of claim, McKinney had 120 days from January 17, 2003, to effect service upon Memorial Hospital. Applying this assumption, the period for service of process of the original complaint on Memorial Hospital ended May 17, 2003. Throughout this time, both McKinney and the Longs had the benefit of counsel. No court order encumbered McKinney’s ability to serve process.

¶ 17. Participation by the Longs’s counsel was prohibited by the circuit court’s orders, except for a period beginning February 6 and ending March 24, 2003. The Longs offer no reason why McKinney could not have served process on Memorial Hospital between January and May of 2003, or requested more time for service from the circuit court. We find the Longs’s arguments concerning their inability to act on the McKinney complaint to be without merit. They failed to sue Memorial Hospital themselves. Since they chose to seek relief from dismissal under the McKinney complaint, they have bound themselves to the choices and inaction of McKinney. As a consequence, they share the same fate with respect to Memorial Hospital.

¶ 18. Another basis for the Longs’s claim that good cause exists to justify the failure to serve process on Memorial Hospital is the strained relationships between McKinney and her counsel and the Longs and their own. This court’s holding on interlocutory appeal assumes McKinney acted as a fiduciary during this time, therefore, strained relationships between co-plaintiffs and their counsel do not constitute good cause to warrant relief from dismissal. Regardless of whether the co-plaintiffs were on amicable or hostile terms, McKinney, as fiduciary for all interested parties and as the only party with the standing to use the court’s powers to prosecute this suit, was responsible for service of process and simply neglected to complete this task within the time allowed. There is nothing in the record before the Court to explain this neglect.

¶ 19. Finally, although the Longs filed their petition for interlocutory appeal on April 21, 2003, the filing of a petition for interlocutory appeal does not stay the proceedings of the circuit court unless this court enters an order to that effect. Miss. R.App. P. 5(f). This Court did not enter such a stay until September 19, 2003, well after the time for service elapsed. Therefore, there is no evidence in the record to show good cause or excusable neglect why McKinney failed to serve process on Memorial Hospital between the time she filed her complaint and when this Court entered the order granting the interlocutory appeal. McKinney acted as fiduciary for the Longs, so they share the penalty for her failure. The circuit court’s findings that (1) McKinney did not cause process to issue for Memorial Hospital, (2) McKinney did not ask for an extension of time to serve Memorial Hospital, and (3) Memorial Hospital did not attempt to evade process are supported by substantial evidence. Its judgment finding that good cause did not exist for McKinney’s failure to serve process is not an abuse of discretion and is affirmed.

¶20. The Longs raise one final argument concerning the dismissal of Memorial Hospital. They contend the dismissal of Memorial Hospital did not dismiss the entire action. This issue does not affect the merits of the dismissal of Memorial Hospital, but it does concern the way the circuit court treated the dismissal of Vaughan. The court’s order of dismissal for Memorial Hospital states, “the subject complaint is dismissed without prejudice.” (Emphasis added). Its order dismissing Vaughan found the amended complaint to be a “new cause of action.”

¶ 21. The circuit court’s order dismissing Memorial Hospital did not properly dismiss the entire action, as two fictitious parties, surgeon John Doe 1 and anesthesiologist John Doe 2, remained as unidentified defendants. One of the benefits of Rule 9(h) is to allow a plaintiff, who is aware of his cause of action against a defendant but ignorant of the defendant’s identity, to name a fictitious party as a defendant in order to use the court’s resources to discover her true identity. See, e.g., Veal v. J.P. Morgan Trust Co. N.A., 955 So.2d 843, 845-46 (Miss.2007); Rawson v. Jones, 816 So.2d 367, 369 (Miss. 2001). To dismiss the entire action, when only the identified parties are dismissed and the complaint articulates claims against fictitious parties whose identity can be discovered, is to deprive a plaintiff of this benefit. Therefore, the circuit court erred in dismissing the entire action when dismissing Memorial Hospital.

¶ 22. This conclusion does not result in any change in the outcome of the dismissal of Memorial Hospital. We also note that the authority relied upon by the circuit court to treat the amended complaint as a new cause of action, King v. American RV Centers, Inc., 862 So.2d 558 (Miss.Ct.App.2003), has been criticized and overruled by this court and should be treated on remand with appropriate circumspection. Wilner v. White, 929 So.2d 315 (Miss.2006).

¶23. In summary, the circuit court’s judgment dismissing Memorial Hospital due to McKinney’s failure to timely serve process is supported by substantial evidence and is affirmed. The circuit court’s January 9, 2006, order dismissed Memorial Hospital “without prejudice.” This result was not changed when the circuit court reconsidered dismissal. This is the result anticipated by Rule 4, therefore, the court’s analysis ends here with respect to Memorial Hospital.

¶ 24. The circuit court dismissed Vaughan after considering his affidavit and those of the Longs and their counsel. Under the circumstances, the circuit court was presented a question of Mississippi law when examining a motion for summary judgment. Miss. R. Civ. P. 12(b); 56. We apply a de novo review to questions of law presented on summary judgment. Veal, 955 So.2d at 845; City of Jackson v. Perry, 764 So.2d 373, 375 (Miss.2000).

II. WHETHER THE CIRCUIT COURT ERRED IN DISMISSING THE CLAIMS AGAINST VAUGHAN.

¶ 25. The Longs offered two reasons to the circuit court why they substituted Vaughan as a defendant almost three years after McKinney filed her original complaint: (1) the language within and the effect of this Court’s order granting interlocutory appeal and (2) the tolling provided by Rule 9(h) and the relation back of the amended complaint to the filing of the original complaint under Rule 15(c). They now present these same arguments as grounds for finding the circuit court erred in dismissing Vaughan. Vaughan responds by arguing the amended complaint does not relate back to the filing of the original complaint, and this Court’s orders did not operate to toll the statute of limitations against him, as this Court had no personal jurisdiction over him when they were entered.

¶ 26. The circuit court treated the amended complaint as a new cause of action, having dismissed the original complaint for lack of service of process on motion by Memorial Hospital. The court then found the statute of limitations barred the action against Vaughan because “the statute of limitations on any claim of medical negligence is barred after the passage of two (2) years from the date of injury.” The circuit court appears to have addressed the Longs’s arguments concerning the effect of this Court’s order only on interlocutory appeal. The issue of the effect of the circuit court’s orders and our interlocutory appeal order is dispositive, therefore, we will examine only this argument. We find the circuit court’s judgment dismissing Vaughan to be in error, and therefore reverse its judgment as to Vaughan and remand this matter for further proceedings.

¶ 27. A suit to recover for damages caused by medical malpractice must be filed “within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered, in no event more than seven (7) years after the alleged act, omission or neglect occurred....” Miss.Code Ann. § 15-1-36 (Rev.2003). This two-year period begins to run when “the patient can reasonably be held to have knowledge of the injury itself, the cause of the injury, and the causative relationship between the injury and the conduct of the medical practitioner.” Powe, 892 So.2d at 227 (quoting Smith v. Sanders, 485 So .2d 1051, 1052 (Miss.1986)). Section 15-1-57 of the Mississippi Code provides:

Where any person shall be prohibited by law, or restrained or enjoined by order, decree, or process of any court in this state from commencing or prosecuting any action or remedy, the time during which such person shall be so prohibited, enjoined or restrained, shall not be computed as any part of the period of time limited by this chapter from the commencement of such action.

Miss.Code Ann. § 15-1-57 (Rev.2003).

¶ 28. Regardless of the validity of this Court’s interlocutory appeal order which stayed the proceedings and tolled the statute of limitations, the Legislature provided a savings measure which removes the period of time a party is prohibited from prosecuting her claim from computation under the applicable statute of limitations. The Longs were restrained by orders of the circuit court from prosecuting their claims against the fictitious party defendants identified in their lawsuit when the circuit court dismissed those claims. They were similarly prohibited from prosecuting their claims under the McKinney complaint by the same circuit court orders. This Court’s order granting interlocutory appeal stayed the proceedings in both lawsuits and provided that the statute of limitations would be tolled for the duration of the appeal. According to the savings measure provided by the statute, the time the Longs were prohibited from prosecuting their claims by the orders of this Court and the circuit court is not included in the computation of time allowed to file suit under the medical malpractice statute of limitations.

¶ 29. On remand after the interlocutory appeal, the Longs were no longer prohibited from prosecuting their claims, and the statute of limitations began to run once again. The record reflects the Longs named Vaughan as a defendant just over three months after remand and served process upon him within ten months after remand. The McKinney complaint was active for eleven months before the interlocutory appeal order was entered. The time allowed by the medical malpractice statute of limitations had not yet expired when Vaughan was served with the amended complaint. The circuit court erred in dismissing Vaughan as a defendant. Therefore, the judgment of the circuit court as to Vaughan is reversed, and this matter remanded for further proceedings.

¶ 30. We recognize that the courts of this state have no power to extend statutes of limitations beyond their terms. See Shewbrooks v. A.C. & S., Inc., 529 So.2d 557, 564 (Miss.1988). Nothing in this Court’s opinion should be read to support a contrary conclusion. However, the order of this court did restrain the Longs’s ability to prosecute their claims, and under those circumstances it is the Legislature and its statute, not this body, which exempts the time from calculation under the malpractice limitations statute. We do not anticipate that conflicts of this nature, between co-plaintiff parties in a wrongful death action — one of which has access to medical records and excludes the others, will occur in the future.

III. WHETHER EQUITABLE PRINCIPLES SUCH AS EQUITABLE TOLLING APPLY TO PRESERVE THE LONGS’S CLAIMS AGAINST MEMORIAL HOSPITAL AND/OR DR. VAUGHAN IN LIGHT OF THE PROCEDURAL HISTORY AND THE REASONING OF LONG v. McKINNEY, 897 So.2d 160 (Miss. 2004).

¶ 31. The Longs finally argue that this court should hold the statute of limitations to be equitably tolled from the time their participation in the McKinney lawsuit was restricted by the circuit court until remand of this matter. Memorial Hospital and Vaughan respond by arguing that equitable tolling does not apply to either of them because they took no steps to prevent the filing of the lawsuit and are not responsible for the conflicts between McKinney and the Longs.

¶ 32. The circuit court dismissed Memorial Hospital “without prejudice” and without considering whether the statute of limitations now bars McKinney’s claims against Memorial Hospital. This ruling on the issue disposed of the motion and granted the relief requested. Under the circumstances, we will not address this issue as it is not properly before us.

¶ 33. Since we are reversing the circuit court’s order dismissing Vaughan and remanding for further proceedings, this issue is moot with respect to Vaughan.

CONCLUSION

¶ 34. The circuit court was correct in dismissing Memorial Hospital without prejudice, because there exists no good cause in the record for McKinney’s complete failure to serve process on it. The circuit court erred in dismissing Vaughan with prejudice because the Longs were restrained from prosecuting their claims by the orders of the circuit court and this Court. This time, by statute, is not included within the computation of time under the medical malpractice statute of limitations. The Longs timely named Vaughan as a defendant and served process upon him before the period under the malpractice statute of limitations expired. Therefore, the judgment of the circuit court dismissing Vaughan is reversed, and this matter remanded for further proceedings.

¶ 35. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

SMITH, C.J., EASLEY, CARLSON, DICKINSON AND LAMAR, JJ., CONCUR. DIAZ, P.J., CONCURS IN RESULT ONLY. GRAVES AND RANDOLPH, JJ., NOT PARTICIPATING.

      . The Estate of Huey P. Long is not listed as a plaintiff in the amended complaint. See Long, 897 So.2d at 175. Lori McKinney is listed as a plaintiff in the style of this complaint but identified as a defendant within.

      . The absence of Lori McKinney from the style of this appeal bears mention. McKinney’s counsel withdrew shortly after remand, and she appears to be acting pro se. Although her name appears as a plaintiff in the style of the original and amended complaints, she is described within the amended complaint as a defendant. The amended complaint was filed by counsel for the Longs after her own counsel withdrew.
      McKinney's status as a party to this appeal is not clear from the record. She identifies herself as a wrongful death beneficiary of Huey Long, yet counsel specifically excluded her name from the notice of appeal from these dismissals. The named plaintiff and counsel of record are directed to act on behalf of all interested parties as fiduciary. See Long, 897 So.2d at 169.

      . It is assumed by both parties that Memorial Hospital at Gulfport is a governmental entity covered by the Mississippi Tort Claims Act, even though there has been no finding to that effect below.


source: Caselaw Access Project

author: ROBERTS, J.,

license: Public Domain

text:
    Gary D. NELSON and Sheree Nelson, Appellants v. SANDERSON FARMS, INC., Appellee.
    No. 2005-CA-00326-COA.
    Court of Appeals of Mississippi.
    Aug. 15, 2006.
    Rehearing Denied March 13, 2007.

      Leonard B. Melvin, Hattiesburg, Peter S. Mackey, William Mitchell Cunningham, attorneys for appellants.
    Richard 0. Burson, Richard A. Follis, Laurel, attorneys for appellee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. Gary D. Nelson, and his wife under a loss of consortium claim, sued Sanderson Farms, Inc. on December 31, 2002, alleging that Sanderson Farms, Inc. failed to provide a safe place to work and warn him of a dangerous condition. On November 22, 2003, by agreement of all parties, Sand-erson Farms, Inc. was dismissed and replaced by Sanderson Farms, Inc. (Processing Division) (“Sanderson Farms”). On August 5, 2004, Sanderson Farms filed its motion for summary judgment. After hearing arguments, the Circuit Court of Jones County granted the motion on the grounds that Nelson’s injury was intimately connected or arose from the work they were hired to perform and that Nelson knew of the potential danger created by the bridge. Aggrieved by this, Nelson now appeals.

FACTS

¶ 2. On October 10, 2002, Nelson arrived at Sanderson Farms’ processing facility in McComb, Mississippi as an employee of Paul Przeracki d/b/a Cobra Industrial. Sanderson Farms hired Cobra as an independent contractor to repair a leak in an underground air pipe which supplied air to a waste-water aeration basin at Sanderson Farms’ McComb facility. The contract provided, in pertinent part, that Cobra would “supply all labor, materials, equipment, supplies, facilities, transportation, and supervision necessary to pump out water out of 12" pipe ... ”. The aeration basin itself was much like an above-ground swimming pool. The wall of the basin was approximately four and one-half feet high and nine inches thick. A blower located roughly five feet to the side of the basin was connected to the center bottom of the basin by the faulty air pipe which ran between the two points roughly fifteen to seventeen feet underground and angled up to each point. A “bridge,” which ran from the middle of the basin and extended to the outer edge, slowly rotated above the water in the basin. The outer end of the bridge was supported by a wheel which rested on top of the outer wall of the basin. It took roughly three minutes for the “bridge,” and attached wheel, to make a full rotation around the basin, and all testimony indicated that the wheel was virtually silent during its movement.

¶ 3. The leak Cobra was hired to repair was believed to be underground, prior to where the pipe angled up to connect to the aeration basin. Cobra’s plan to repair the leak involved driving a smaller pipe into the ground with a sledge hammer and air drill, down to the location of the leak, and injecting a chemical compound through the smaller pipe which would seal the leak.

¶ 4. Przeracki and Nelson, the only Cobra representatives present the day of the injury, arrived at the site around 11:00 in the morning. Also present was Dwight Pettit, a representative of the company that manufactured the compound Cobra planned to use to stop the leak, and George Jones, Jr., Sanderson Farms’ facility supervisor. Przeracki and Nelson were taking turns hammering the pipe into the ground and were located in the five foot gap between the basin and the blower. They were not working on the basin or rotating bridge itself, but were in close proximity to it. Nelson stated in his deposition that when they began to work the bridge was rotating around the top of the basin and he identified it as a potential hazard, but that around 1:00 p.m. he noticed it was shut off. Specifically, Nelson stated in response to an interrogatory offered by Sanderson Farms:

While installing the small bore pipes, pipes we would pump the grout through, we hit the footer, concrete, and stopped driving. Paul and I went to the control room and ask for drawings. After being given the civil drawings that showed the footer, I went back to the site to lay out the location of the footers. Paul came back and started pulling the cover from a pump enclosure. The operator (whom we presume was George Jones, Jr.,) was present. I asked Paul if he was sure the pump was locked out and he told me the operator had thrown the breaker. A few minutes later I noticed the boom appeared to be stopped. I remember making the statement, “at least they shut off the boom.” Paul and the grout representative, Dwight Pettit, were both standing there. Paul said that he did not know why the boom was left running anyway. The other times Paul had worked in this exact location, Sanderson Farms had stopped the boom from operating. After pulling the pipe up we had hit the footer with, we were driving it in another location. Paul and I were taking turns driving the pipe down with a sledge hammer. I finished my turn, stepped back placing my hand on top of the tank and seconds later, the boom ran over my hand.

Also, during his deposition, Nelson made the following supporting statement:

Q. Okay. What’s the basis of your recollection that it was turned off at some point?
A. I saw it stopped.
Q. About what time was that?
A. About the time we were pulling this panel off in that same area there.
Q. Did you make a comment about that?
A. Yes, sir, I did.
Q. And what did you say?
A. I said, well, at least they turned that thing off.

Jones testified that he was positive the bridge was never shut down while Nelson and the others were working, and that he had been observing the trio most of the morning but was in his office using the restroom at the time of the accident. Additionally, Jones testified that had the bridge been shut down, he would have been the one to do it. Przeracki testified that the bridge was rotating when they arrived at the work site and he could not recall the bridge ever stopping. The only other individual present that day, Pettit, testified in his deposition as follows:

Q. At the time the camera was placed in there, do you know if the wheel was running?
A. I believe it was.
Q. At any point in time between the time that you got there and Gary Nelson was injured, do you know whether or not the bridge was shut down?
A. Well, this is hard for me to remember, but it only makes sense that it was shut down before they blew the water out of this thing. They shut it down for some reason when they turned this blower on and the water all come out of the middle. And that was — whenever they took the thing back off, I mean, it went back around.
Q. How many times did that happen?
A. Three maybe.
Q. And so at that point what is it you’re doing?
A. I am running or helping run and operate the pump, making sure that the lines sent down — the pipe and at the point, turn the pump on and watch and supervise the grouting operation, the pumping of the material.
Q. And did that resolve the problem?
A. Not initially.
Q. When you say “not initially,” what do you mean?
A. That had to be done two, maybe three times. And we had to reposition — once we pumped the grout, then that’s when they had to put everything back on the pipe, blow this line out. That’s when the water comes up. That’s when I — as I recall the bridge was stopped.
Q. All right. Do you have any specific recollection that the bridge and wheel ever stopped moving from the time that y’all arrived in the morning until the time of Mr. Nelson’s injury?
A. Not specific.
Q. Okay.
A. I think that — -because it only makes sense for us to inspect that and look into it that it had to have gone off at least once.

¶ 5. Nelson’s injury occurred between 1:00 p.m. and 1:15 p.m. During a break from swinging the sledgehammer, Nelson placed his hand on top of the basin wall. As was previously stated, he believed that the bridge had been stopped. Within a few seconds, the wheel rolled over his fingers, causing substantial damage to Nelson’s left hand, and eventual amputation of three fingers.

STANDARD OF REVIEW

¶ 6. A lower court’s grant of summary judgment is reviewed de novo. McMillan v. Rodriguez, 823 So.2d 1173, 1177(¶ 9) (Miss.2002). If, after examining all evidentiary matters within the record in a light most favorable to the non-movant, no genuine issue of material fact exists, then summary judgment is proper. Id. Additionally, the non-movant is to be afforded every reasonable doubt when reviewing the record. Jones v. James Reeves Contractors, 701 So.2d 774, 777 (Miss.1997). A summary judgment motion can only stand if there is no genuine issue of material fact, and, as a matter of law, the moving party is entitled to relief. Id. “If reasonable minds could differ on a material fact, summary judgment is improper.” Hall v. Cagle, 773 So.2d 928(¶ 4) (Miss.2000) (citing Stegall v. WTWV, Inc., 609 So.2d 348, 350-51 (Miss.1992)). Finally, summary judgment should not be granted when a complete presentation of the evidence would lead to a triable issue. Id. (citing Great Southern [National] Bank v. Minter, 590 So.2d 129, 135 (Miss. 1991)).

ISSUES AND ANALYSIS

¶ 7. Nelson argues that the lower court’s grant of summary judgment in favor of Sanderson Farms was in error. Finding that genuine issues of material fact do exist surrounding the details of the case before us, we must reverse.

I. Whether the trial court erred in finding that no genuine issue of material fact existed as to whether or not the “intimately connected” exception applied.

¶ 8. Generally, a premises owner has a duty to provide an independent contractor, and the employees of the independent contractor, with a “reasonably safe place to work or give warning of danger.” Ratcliff v. Georgia Pacific Corp., 916 So.2d 546, 549(¶ 10) (Miss.Ct.App.2005) (citing Mississippi Chemical Corp. v. Rogers, 368 So.2d 220, 222 (Miss.1979)). As an exception to this general rule, the premises owner has no duty to make safe or warn of dangers that arise out of or intimately connected with the contracted work. Coho Resources, Inc. v. McCarthy, 829 So.2d 1, 11(¶ 21) (Miss.2002) (citing Magee v. Trans Continental Pipeline Corp., 551 So.2d 182, 185 (Miss.1989)). Stated another way, a premises owner has no duty to protect independent contractors, or employees of the independent contractor, from dangers intimately connected with defects which the contractor has undertaken to repair. Jones v. James Reeves Contractors, Inc., 701 So.2d 774, 782 (Miss.1997) (citing Jackson Ready-Mix Concrete v. Sexton, 235 So.2d 267, 271 (Miss.1970)).

¶ 9. Under the “intimately connected” exception, “[w]hat is critical is whether the project owner maintains any right of control over the performance of that aspect of the work that has given rise to the injury.” Magee v. Trans Continental Pipeline Corp., 551 So.2d 182, 186 (Miss.1989). Under most situations, the contract language is of utmost import in this regard, but if the plaintiff can show that, notwithstanding the contract, the premises “owner maintained substantial de facto control over those features of the work out of which the injury arose,” the premises owner’s duty is resurrected. Id. Thus, there is an exception to the “intimately connected” exception of premises liability with regard to independent contractors which reinstates a duty to provide a reasonably safe place to work or warn of dangers. As correctly identified in Stokes v. Emerson Electric Co., 217 F.3d 353, 358 (5th Cir.2000), the intimately connected exception credits the independent contractor, and his employees, with knowledge of the dangers closely related to the job they have undertaken. This knowledge on the part of the independent contractor is rightly assumed because of its “familiarity with the work site and expertise in how to safely accomplish the project.” Stokes, 217 F.3d at 358.

¶ 10. The trial court determined that Nelson’s injury arose from or was intimately connected to “the very work they were hired to perform.” Notwithstanding that holding, we turn to the discussion of the exception within the exception, control, which the lower court failed to consider. In the case at hand, the contract between Cobra and Sanderson Farms explicitly gave control over sup-pling all “labor, materials, equipment, supplies, facilities, transportation, and supervision necessary to pumpout water out of 12" pipe ...” to Cobra and provided a fixed, lump sum cost to Sanderson Farms for said services. Additionally, the record indicates that Cobra had full control over the way in which the job was to be completed, i.e., hammering a pipe into the ground, etc., and no one from Sanderson Farms was contractually charged with the responsibility of supervising the operation. Cobra’s apparent control over the work itself notwithstanding, a question exists whether Sanderson Farms retained direct, unfettered control over the aeration basin and its accompanying rotating bridge. As the Nelsons point out, the contract is silent as to which party maintained control over the bridge’s operation, and it is safe to assume that Sanderson Farms retained the control it already possessed. Additionally, Jones testified that if anyone would have shut down the bridge, it would have been him, serving as further evidence that Sanderson Farms did not relinquish control of the bridge to Cobra. On the other hand, testimony was given that Przeracki may have had the ability to request the bridge be shut down, indicating that Sand-erson Farms may have given Cobra some control over the bridge. Therefore, we find that a genuine issue of material fact exists as to whether Sanderson Farms retained substantial control over the job site.

¶ 11. Nelson argues that Sanderson Farms’ lockout/tagout policy is evidence of their control over the entire area of the work site. The policy requires that a machine or piece of equipment be locked out and tagged out “if servicing and maintenance takes place during normal production operations which requires an employee to place any part of their body into an area on a machine or piece of equipment that is the point of operation or a danger zone.” This policy was also applied to contractors, such as Przeracki and Nelson. Nelson urges that the plain language of this policy obviously describes the area where Nelson was injured. We cannot agree. The plain language of the policy demands lockout/tagout only if there is service and maintenance that requires contact of an area on a machine or piece of equipment. No testimony was given indicating that contact with the basin, bridge or wheel was required to complete the contracted job. Scott Rushing, Sanderson Farms’ manager of safety, did testify that the terms and conditions of the lockout/tagout procedure applied to the waste water basin. This is similar to saying the lockout/tagout procedures applied to the facility as a whole, which we assume they did, but as stated above, the conditions triggering enforcement of the procedure did not arise. So, while there is a genuine issue of material fact as to whether or not Sanderson Farms retained substantial control over the instrumentality giving rise to the injury, we find that Sanderson Farms’ lockout/tagout policy is not evidence of control as it did not apply to the basin or bridge at the time Nelson was working at the site.

II. Whether Nelson knew that the bridge represented a danger.

¶ 12. The trial court’s second basis for granting Sanderson Farm’s motion for summary judgment is that Nelson knew the potential danger posed by the bridge, and, therefore, Sanderson Farms cannot be held liable. In response to this, Nelson argues that Sanderson Farms’ alleged act of shutting down the bridge, then restarting it, created a “hidden danger,” to which Sanderson Farms had a renewed duty to warn.

¶ 13. A second exception to the general rule establishing a premises owner’s duty owed to an independent contractor, and the independent contractor’s employees, states that the premises owner’s duty to warn of dangers is absolved if the independent contractor knows of said dangers. Ratcliff v. Georgia Pacific Corp., 916 So.2d 546, 549(¶ 10) (Miss.Ct.App. 2005). Stated another way, a premises owner has a duty to warn of unknown dangers. Any knowledge of dangers on the part of the independent contractor is deemed to be known by the contractor’s employees as well. Jones, 701 So.2d at 783.

¶ 14. There was ample testimony in the record that showed Nelson appreciated the potential danger created by the bridge’s rotation. Nelson does not argue this point. Jones even testified that both he and another Sanderson Farms’ employee had been physically injured by the rotating bridge prior to Nelson’s injury. The question becomes, then, if the bridge was ever turned off. The record is ripe with contradictory testimony to this point. Nelson testified that he noticed the bridge was moving when they arrived at the facility that morning, but sometime around 1:00 p.m. noticed it was not moving. Pettit bolsters this testimony by stating in his deposition that it would have only made sense to shut down the bridge at least once given the work they were doing. On the other side of the fence, Jones adamantly stated that he never shut down the bridge that day, but was in his office at the time of the accident, while Przeracki testified he could not recall the bridge ever stopping. On summary judgment, we are required to accept all evidence and inferences favorable to the plaintiffs case as true. Harris v. Shields, 568 So.2d 269, 275 (Miss.1990).

¶ 15. The Appellee argues that its duty to warn was abated whether or not the bridge was stopped and started again because Nelson knew of the danger the bridge created, and while he did testify that the noticed the bridge stopped, he was never informed of the bridge being stopped, therefore, Nelson could not have justifiably relied on his belief that it was turned off without also presuming that it may be turned back on without his knowledge. While the argument is creative, it is not persuasive. If the bridge was halted while the Cobra crew was working, which we must assume given Nelson’s testimony and the pertinent standard of review, the danger created by the bridge was also halted, and Sanderson Farms’ duty to warn would be renewed if Jones restarted it, as at that point in time the bridge’s movement would have been an unknown danger. Therefore, a genuine issue of material fact exists as to whether the bridge was shut down and restarted unbeknownst to Nelson and whether or not a de-ener-gized bridge, under the circumstances present, represented a hidden danger about which Sanderson Farms had a duty to warn before re-energizing. These issues are properly jury issues.

¶ 16. Given our findings, supra, that genuine issues of material fact exist regarding control over the work site and the alleged stopping and restarting of the bridge, consideration of Nelson’s other arguments in favor of reversal of the lower court’s grant of summary judgment, namely whether Sanderson Farms was in the best position to eliminate the potential hazard the bridge created and whether Sand-erson Farms negligently caused Nelson’s injuries, is not necessary for resolution of this appeal.

CONCLUSION

¶ 17. Based upon the evidence in the record viewed in the most favorable light to Nelson, and giving Nelson every reasonable doubt, we hold that there are genuine issues of material fact that must be addressed by a jury. The decision of the Circuit Court of Jones County to grant Sanderson Farms’ motion for summary judgment is, therefore, reversed and remanded.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF JONES COUNTY IS REVERSED AND REMANDED. All COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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


author: LEE, P.J.,

text:
    Ricardo TERRELL a/k/a Recarido Terrell, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01606-COA.
    Court of Appeals of Mississippi.
    Feb. 20, 2007.
    Rehearing Denied June 26, 2007.

      M.A. Bass, Jr., attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, P.J., BARNES and ISHEE, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On November 5, 2004, Preferred Check Service in Crystal Springs, Mississippi, was robbed at gunpoint. Ricardo Terrell was later arrested for his assistance in the robbery.

¶ 2. Terrell was indicted in the Circuit Court of Copiah County for armed robbery as a habitual offender. At trial on July 25, 2005, the jury found Terrell guilty of the lesser offense of robbery. In a separate hearing after the jury verdict was reached, Terrell was found to be a habitual offender. He was later sentenced as a habitual offender to fifteen years without parole in the custody of the Mississippi Department of Corrections.

¶ 3. Terrell appeals to this Court citing the following issues: (1) the trial court erred by overruling his objection to the testimony of Jerome Leflore as improper rebuttal and (2) the trial court erred by denying his motion for directed verdict at the end of the State’s case and at the end of his case because the verdict was against the overwhelming weight of the evidence. Finding no error, we affirm.

DISCUSSION

I. DID THE TRIAL COURT ERR BY OVERRULING TERRELL’S OBJECTION TO THE TESTIMONY OF LEFLORE AS IMPROPER REBUTTAL?

¶ 4. Officer Jerome Leflore was called as a rebuttal witness in Terrell’s trial to rebut Terrell’s testimony that he never made a confession regarding the robbery to the investigating officer, Chris Palmer.

¶ 5. Investigator Palmer testified that after Terrell was arrested and given Miranda warnings, Terrell gave certain admissions but refused to sign a written statement or have his statement recorded. Terrell testified that he did not confess to the crime and that he was not asked if he would like his statement recorded or written down. In rebuttal to Terrell’s denial that he was given the opportunity to have his statement taped or written down, the State called Leflore to impeach Terrell’s direct testimony. It was Palmer’s testimony that Leflore was present when Terrell refused to have his statement recorded. Officer Leflore testified that Terrell confessed to involvement in the armed robbery and signed a waiver of rights.

¶ 6. Terrell argues that Officer Leflore was not on the State’s witness list and the questions asked on rebuttal were improper, thus resulting in an unfair trial. He argues that the State withheld Leflore which denied Terrell the ability to question him before trial. Terrell further argues that the State’s failure to offer Leflore’s testimony in its case-in-chief constituted reversible error. Terrell’s attorney first objected to improper rebuttal when the State asked Leflore if he assisted Investigator Palmer in interviewing Terrell. The Court overruled his objection. He next objected to improper rebuttal when the State asked Leflore if the investigation with Palmer regarded the robbery at Preferred Check Services. This objection was also overruled. Terrell’s attorney then offered a continuing objection when the State asked Leflore to recount the substance of Terrell’s testimony.

¶ 7. The determination of whether evidence is properly admitted as rebuttal evidence is within the trial court’s discretion. Powell v. State, 662 So.2d 1095, 1099 (Miss.1995). We find that the trial judge did not abuse his discretion by allowing Leflore’s testimony. Lefore’s testimony should not have been a surprise to Terrell as it just reiterated Investigator Palmer’s testimony. No new evidence was admitted in Leflore’s testimony. Terrell denied admitting involvement in the robbery, and Leflore, who was present at the investigation, was called to rebut Terrell’s denial.

¶ 8. We find this issue to be without merit.

II. DID THE TRIAL COURT ERR IN DENYING TERRELL’S MOTION FOR DIRECTED VERDICT?

¶ 9. Terrell argues that his motion for directed verdict should have been granted because the State failed to prove beyond a reasonable doubt that he was the individual who committed the armed robbery and that no credible evidence was presented to sustain the jury’s conviction.

¶ 10. “The standard of review for a denial of a directed verdict, peremptory instruction, and a JNOV are identical.” Hawthorne v. State, 835 So.2d 14, 21(¶ 31) (Miss.2003). All challenge the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). This Court reviews the trial court’s finding regarding the sufficiency of the evidence at the time the motion for a directed verdict or peremptory instruction is overruled. Holloman v. State, 656 So.2d 1134, 1142 (Miss.1995). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005).

¶ 11. At trial, Diane LeCompte, the employee working at Preferred Check Services the day of the robbery, testified that Terrell came into the business before the robbery occurred. She testified that Terrell asked the price of the jewelry that she kept on the counter, she told him, and he left. His behavior struck her as strange. LeCompte gave a description of Terrell to the police and later identified him in a photographic line up. John Freeman was also called to testify. At the approximate time of the robbery, Freeman was driving on the street behind Preferred Check Services near his nephew’s business when he saw Terrell standing next to a Cadillac and looking down the road. Freeman asked Terrell what he was doing, and Terrell responded that he was urinating. Terrell then looked back at the corner of the building, yelled “hey,” and then got in the Cadillac and slowly drove out of the lot behind the building. Freeman gave a description of Terrell and the Cadillac to the police. He later identified Terrell in a photographic line up.

¶ 12. Investigator Palmer testified that when Terrell was brought to the police station for questioning he confessed to assisting in the robbery. After questioning Terrell, Investigator Palmer typed a statement recounting Terrell’s confession. Palmer’s testimony of Terrell’s statement is as follows:

[H]e told me that he and Mr. McGee were at the J & G Trailer Park drinking gin earlier that morning. As they drank, they decided to go and hit what he called a lick. From there they left J & G Trailer Park and drove around town stopping at the Preferred Check Cashing place and looking at it for a minute. Then they went around the back as he referred to the other building on the other street, and he let Mr. McGee out as he waited. As he waited, he was approached in his words by an older white gentleman that asked him to leave the property. At that time he left the property, went down the street and gave McGee a ride back to J & G Trailer Park. And in turn he (McGee) gave him $200, and that’s the last he saw him that day.

¶ 13. Terrell testified that he did enter Preferred Check Services the day of the robbery. He stated that his girlfriend asked him to look at a necklace for her. When asked if he saw McGee on the day of the robbery, Terrell stated that he did not really know McGee but saw him later in the evening at the trailer park. McGee was bragging about robbing the check cashing service. Terrell testified that this was the first time he heard about the armed robbery. Terrell testified that on November 5, around 11 a.m., he discovered that his girlfriend’s house had been broken into and later called the police. Investigator Palmer responded to the call. Palmer asked Terrell about the armed robbery at Preferred Check Services; Terrell responded that he had no knowledge of an armed robbery.

¶ 14. Terrell’s testimony regarding his confession conflicted with the testimony of Palmer and Leflore. When confronted with conflicting testimony, “[i]t is the function of the jury to pass upon the credibility of the evidence.” Evans v. State, 725 So.2d 613, 680 (¶ 293) (Miss. 1997) (citing Bond v. State, 249 Miss. 352, 162 So.2d 510 (1964)). In a criminal prosecution, the jury may accept the testimony of some witnesses and reject that of others, and may accept in part and reject in part the testimony of any witnesses, or may believe part of the evidence on behalf of the State and part of that for the accused, and the determination of the credibility of such witnesses is not for the reviewing court, but only for the jury. Evans, 725 So.2d at 680-81 (¶ 293). In this case, the jury chose to give more weight to the testimony of the investigating officers than Terrell.

¶ 15. Viewing the evidence in the light most favorable to the prosecution, we find that sufficient evidence existed for the trial judge to deny Terrell’s motion for directed verdict and to sustain a jury verdict of guilty.

¶ 16. THE JUDGMENT OF THE CO-PIAH COUNTY CIRCUIT COURT OF CONVICTION OF ROBBERY AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COPIAH COUNTY.

KING, C.J., MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.