author: EASLEY, Justice,

text:
    SOUTH CENTRAL REGIONAL MEDICAL CENTER v. Rhonda GUFFY.
    No. 2005-IA-00684-SCT.
    Supreme Court of Mississippi.
    June 1, 2006.

      Richard O. Burson, Laurel, Wendell Joseph Wiggins, attorneys for appellant.
    Leonard B. Melvin, Jr., Hattiesburg, attorney for appellee.
   EASLEY, Justice,

for the Court.

PROCEDURAL HISTORY

¶ 1. Rhonda Guffy (Guffy) filed suit against the South Central Regional Medical Center (Hospital) located in Laurel, Mississippi, in the Circuit Court of the Second Judicial District of Jones County, Mississippi, on November 14, 2002. The Hospital filed its answer on December 11, 2002, raising the Mississippi Torts Claim Act (MTCA), Miss.Code Ann. § 11-46-1 et seq., as an affirmative defense. The Hospital also filed interrogatories and took depositions in the case.

¶ 2. Subsequently, the Hospital filed its motion to dismiss Guffy’s claim on November 18, 2004. The Hospital argued that Guffy’s complaint should be dismissed for failure to meet the notice requirements of Miss.Code Ann. § 11-46-11. Guffy did not file a written response to the motion to dismiss. The trial court held a hearing on the motion on February 28, 2005. On March 15, 2005, the trial court denied the Hospital’s motion to dismiss. On April 5, 2005, the Hospital sought interlocutory appeal of the trial court’s ruling, which this Court granted on June 8, 2005. See M.R.A.P. 5.

FACTS

¶ 3. On or about September 20, 2002, Guffy suffered injuries when she stepped into a hole in the Hospital’s parking lot. Guffy was immediately taken to the Hospital’s emergency room where she was treated and released. Guffy filed suit against the Hospital fifty-five days after the accident on November 14, 2002. After filing its answer and conducting discovery, the Hospital filed its motion to dismiss Guffy’s complaint based on her failure to substantially comply with the notice requirements of the MTCA. The Hospital argued that no written notice or letter was ever provided as required by Miss.Code Ann. § 11 — 46— 11(2).

¶4. The record does not contain any written notice from Guffy to the chief executive officer of this governmental entity or anyone else. Likewise, Guffy does not demonstrate that written notice was provided to the Hospital under Miss.Code Ann. § 11-46-11(2). Guffy contended that she substantially complied with the notice requirements based on a conversation she had with the risk manager at the Hospital to review her emergency room medical bill. Guffy also contends the Hospital was on notice because her attorney requested her medical records from the Hospital and informed an insurance adjuster that Guffy intended to file suit against the Hospital.

¶ 5. In addition to failing to provide any written notice in the record, Guffy filed suit against the Hospital fifty-five days after the accident. As such, Guffy also failed to wait the statutory ninety days after providing notice to file suit against the Hospital. After hearing oral arguments on the Hospital’s motion to dismiss, the trial court took the matter under advisement and subsequently entered its order denying the Hospital’s motion to dismiss. The trial court found only “that the Defendant’s motion is not well taken and should be denied.”

¶ 6. The Hospital is now before this Court on interlocutory appeal raising the following issues:

I. Whether Guffy’s complaint should have been dismissed for failing to substantially comply with the notice requirements of Miss.Code Ann. § 11-46-11(2).
II. Whether Guffy’s complaint should have been dismissed for failing to wait the statutory ninety days before filing suit under Miss. Code Ann. § 11-46-11(1).

DISCUSSION

¶ 7. On appeal, the Hospital argues the trial court’s judgment denying the Hospital’s motion to dismiss for Guffy’s failure to comply with the notice requirements of Miss.Code Ann. § 11-46-11(2) should be reversed. As such, the Hospital claims Guffy failed to substantially comply with the notice provision of the MTCA. This Court reviews errors of law, including the proper application of the Mississippi Tort Claims Act, de novo. Fairley v. George County, 871 So.2d 713, 716 (Miss.2004); City of Jackson v. Brister, 838 So.2d 274, 277-78 (Miss.2003). “The MTCA is the exclusive remedy for filing a lawsuit against governmental entities and its employees.” Id. at 277-78. The standard employed by this Court requires substantial compliance with the notice requirements of the MTCA. McNair v. Univ. of Miss. Med. Ctr., 742 So.2d 1078, 1080 (Miss.1999); Carr v. Town of Shubuta, 733 So.2d 261 (Miss.1999); see also Reaves ex rel. Rouse v. Randall, 729 So.2d 1237, 1240 (Miss.1998) (“When the simple requirements of the Act have been substantially complied with, jurisdiction will attach for purposes of the Act”).

¶ 8. At the hearing on the Hospital’s motion to dismiss, Guffy’s counsel stated that he spoke and corresponded with the director of the Hospital and with the Hospital’s insurance company trying to settle Guffy’s claim without filing suit. However, Guffy never produced any documentation or correspondence at the hearing or in the record to demonstrate that any written notice pursuant Miss.Code Ann. § 11-46-11(2) had been provided. The Hospital was not aware of any correspondence. The record is completely devoid of any written notice or any written documentation that could be construed to be written notice under Miss.Code Ann. § 11-46-11(2).

¶ 9. Likewise, Guffy does not provide any details as to when the alleged conversations with the director or the insurance company took place. Counsel for the Hospital stated at the motion hearing that no one from the Hospital, the executive director, Doug Higginbotham, nor any one from the insurance company ever informed Guffy or Guffy’s attorney that she did not have to comply with the notice requirements under the MTCA. The record is clear that the complaint was filed fifty-five days after the accident occurred, and the Hospital was served four days later. Therefore, even though no written notice is contained in the record, Guffy clearly did not wait the statutory ninety days before commencing the action against the Hospital.

¶ 10. Guffy argued that the Hospital unduly delayed raising the notice requirement waiting until November 18, 2004, to file its motion to dismiss. The Hospital contended that the MTCA was raised as an affirmative defense in its answer. Also, the Hospital stated at the hearing that its insurance company, Reciprocal of America, went into default and then court-handled liquidation. The liquidation delayed the case while the guaranty fund sorted out the claim’s assignment. The counsel for the Hospital testified that the liquidation delayed the case for 2003 and part of 2004.

I. Lack of written notice

¶ 11. On appeal, Guffy does not provide any legal authority in support of her position. Rather, Guffy states that no Mississippi cases can be found similar to the case at hand. Guffy asks this Court in the interest of justice and fairness to affirm the trial court’s judgment to deny the Hospital’s motion to dismiss. Guffy states that the Hospital received sufficient notice. The Hospital contends that Guffy failed to substantially comply with the notice requirement under Miss.Code Ann. 11-46-11(2).

¶ 12. The MTCA notice statute provides:

Every notice of claim required by subsection (1) of this section shall be in writing, and shall be delivered in person or by registered or certified United States mail. Every notice of claim shall contain a short and plain statement of the facts upon which the claim is based, including the circumstances which brought about the injury, the extent of the injury, the time and place the injury occurred, the names of all persons known to be involved, the amount of money damages sought and the residence of the person making the claim at the time of the injury and at the time of filing the notice.

Miss.Code Ann. § 11-46-11(2) (Rev.2002) (emphasis added).

¶ 13. This Court in 2004 addressed a situation similar to the argument raised by Guffy on appeal regarding Miss.Code Ann. § 11-46-11(2) in Fairley. There this Court distinguished between substantial compliance and non-compliance with the notice provisions of the MTCA, stating:

This Court requires “substantial compliance” with the MTCA notice provisions. See Carr v. Town of Shubuta, 733 So.2d 261 (Miss.1999); Reaves ex rel. Rouse v. Randall, 729 So.2d 1237 (Miss.1998). However, while plaintiffs need only substantially comply with the MTCA notice statute, “we can hardly afford relief under the [MTCA] when there is no effort to comply with the procedural mandates.” Little v. Miss. Dep’t of Human Servs., 835 So.2d 9, 12-13 (Miss.2002) (emphasis added). That is, “[t]hough substantial compliance with the notice provisions is sufficient, ‘substantial compliance is not the same as, nor a substitute for, non-compliance.’” Gale v. Thomas, 759 So.2d 1150, 1158 (Miss.1999) (plurality) (quoting Carr v. Town of Shubuta, 733 So.2d 261, 265 (Miss.1999)).

Fairley, 871 So.2d at 716-17 (emphasis added). “‘The determination of substantial compliance is a legal, though fact-sensitive, question.’ ” Id. at 717 (quoting Carr, 733 So.2d at 265).

¶ 14. The Court determined that the letter failed to substantially comply with at least six required notice factors as the “letter was not (1) sent registered mail or certified mail, nor was it delivered in person; (2) did not contain a short and plain statement of the facts with regard to circumstance of injury; (3) did not give the extent of injuries; (4) did not give the name of all persons; (5) did not list the damages sought; and (6) did not give the residence of the claimant.” Id. at 718. While the Court in Fairley had a letter to consider in determining whether substantial compliance had occurred, this case is devoid of any letter to examine to determine if any of the required notice factors have been satisfied. However, Fairley made a similar argument as Guffy that the Board had sufficient notice of the claim despite the content of the letter or the defects in the letter. Id. at 718-19.

¶ 15. In Fairley, besides the letter, the facts contained in the separate opinion, concurring in result, provide that the president of the board of supervisors, another board member, and the board’s comptroller testified in depositions that they were aware of Fairley’s accident. Id. at 719-20. Likewise, the board’s insurance adjuster testified in her deposition that she was aware of the accident and had conversations with the board’s comptroller and a board member regarding Fairley’s case. Id. at 720. Fairley’s attorney also provided an affidavit that she had numerous telephone conversations with the board’s insurance adjuster regarding Fairley’s accident. Id. In Fairley this Court examined the letter Fairley’s attorney sent to the George County Board of Supervisors; however, the Court determined that Fair-ley failed to substantially comply with the notice requirements. Id. at 718.

¶ 16. Furthermore, in Black v. City of Tupelo, 853 So.2d 1221, 1226 (Miss.2003), this Court in 2003 addressed another case factually similar to this case. In Black, Black failed to send any notice of claim letter at all. Id. The Court found that Black had not substantially complied with the notice requirements of the Mississippi Tort Claims Act as he did not provide the notice required. Id.

¶ 17. Recently, this Court has had the opportunity to further examine the application of Miss.Code Ann. § 11-46-11. In University of Mississippi Medical Center v. Easterling, 928 So.2d 815 (Miss.2006), this Court has adopted a strict compliance requirement regarding Miss.Code Ann. § 11-46-11(2). However, this Court’s language in its holding in Easterling is very specific in its application. In Easterling, we stated:

In order to make it perfectly clear to all that strict compliance is required, as stated in Davis [v. Hoss, 869 So.2d 397 (Miss.2004)] and Wright [v. Quesnel, 876 So.2d 362 (Miss.2004)], we hereby overrule [City of Pascagoula v.] Tomlinson[ 741 So.2d 224 (Miss.1999)] and its progeny, including [Jackson v.] Booneville[ 738 So.2d 1241 (Miss.1999)], [Leflore County v.] Givens[ 754 So.2d 1223 (Miss.2000)], [Jackson v.] City of Wiggins[, 760 So.2d 694 (Miss.2000)], [Jones v.] Mississippi School for Blind[ 758 So.2d 428 (Miss.2000)], and [Williams v.] Clay County[ 861 So.2d 953 (Miss.2003)] but only as to those cases’ analysis of the ninety-day notice requirement. In other words, the rule set forth in Tomlinson, that the responsibility falls on the defendant to request a stay of the lawsuit when a plaintiff is not in compliance with the ninety-day notice requirement, is abrogated.

Easterling, 928 So.2d at 819-20, 2006 WL 871302 *5 (emphasis added). Thus, the holding was clear and unambiguous that it addressed only the ninety-day notice requirement under Miss.Code Ann. § 11-46-11(1). Id. The Tomlinson case and its progeny cited in the Easterling decision dealt with the application of the ninety-day notice requirement. Id. However, this is not the case at hand in Issue I. Miss.Code Ann. § 11 46 11(1) and its ninety-day statutorily required waiting period before maintaining an action are addressed in Issue II. As such, our holding in Easter-ling is incorporated into the discussion in Issue II, regarding Miss.Code Ann. § 11-46-11(1).

¶ 18. While Easterling is limited in its holding to the ninety-day notice requirement, the MTCA requires persons wishing to file suit against a “governmental entity or its employee” to provide notice “ninety (90) days prior to maintaining an action,” and to provide “a short and plain statement of the facts upon which the claim is based.” See Miss.Code Ann. §§ 11-46-11(1) and (2); See also Easterling, 928 So.2d at 818-19, 2006 WL 871302 *4-5. Pursuant to Miss.Code Ann. § 11-46-11(2), there are seven required categories of information which must be included. The seven required categories are as follows: (1) the circumstances which brought about the injury; (2) the extent of the injury; (3) the time and place the injury occurred; (4) the names of all persons known to be involved; (5) the amount of money damages sought; (6) the residence of the person making the claim at the time of the injury; and (7) the claimant’s residence at the time of filing the notice. See Miss.Code Ann. § 11 — 46-11(2). The language of Miss.Code Ann. § 11-46-11(2) clearly states that “every notice of claim shall contain a short and plain statement” addressing these seven categories of information or facts upon which the claim is based and this “shall be in writing.” See Miss.Code Ann. § 11-46-11(2). As such, the language contained in Miss.Code Ann. § 11-46-11(2) is mandatory.

¶ 19. With respect to the seven required categories of information, the failure to provide any one of the seven categories is failure to comply. Thus, the term “substantial compliance” in this context is rendered meaningless. Either the written notice complied with Miss.Code Ann. § 11-46-11(2) by disclosing all seven required categories of information, or it did not comply with the statute by failing to disclose all seven required categories of information. The wording, “substantial compliance” with the requirements of Miss.Code Ann. § 11-46-11(2), contained in many of this Court’s opinions regarding the application of Miss.Code Ann. § 11-46-11(2) causes confusion and needs to be addressed by this Court today in order to provide direction and clarity to the courts and the bar. See, e.g., Fairley, 871 So.2d at 716; Gale v. Thomas, 759 So.2d at 1158; McNair v. Univ. of Miss. Med. Ctr., 742 So.2d at 1080; Carr v. Town of Shubuta, 733 So.2d at 263; Reaves ex rel. Rouse v. Randall, 729 So.2d at 1240.

¶ 20. The confusion has arisen in the discussion of Miss.Code Ann. § 11-46-11(2), as to how much information is required by this Court under each of the seven categories to comply with Miss.Code Ann. § 11-46-11(2). As a practical example, the first category requires notice of the “circumstances which brought about the injury.” In order to comply with this requirement, the notice need not disclose every single fact, figure and detail, but rather the substantial details, in order to comply with the requirements of Miss. Code Ann. § 11-46-11(2). But, the failure to provide any of the seven statutorily required categories of information falls short of the statutory requirement and amounts to non-compliance with Miss.Code Ann. § 11-46-11(2). However, where some information in each of the seven required categories is provided, this Court must determine whether the information is “substantial” enough to be in compliance with the statute. If it is, the result is “compliance,” not “substantial compliance” with the requirements under Miss.Code Ann. § 11-46-11(2).

¶ 21. Therefore, we find that Guffy has failed to comply with the notice requirements of Miss.Code Ann. § 11-46-11(2). Due to the lack of any written notice in the record, Guffy failed to comply with the mandatory requirements of Miss.Code Ann. § 11-46-11(2) as none of the seven required categories of information are provided. As such, the trial court committed reversible error in denying the Hospital’s motion to dismiss Guffy’s complaint for failure to comply with the notice requirements of Miss.Code Ann. § 11-46-11(2).

II. Failure to wait ninety days

¶22. As stated above, the trial court’s judgment denying the Hospital’s motion to dismiss constituted reversible error as the record does not demonstrate that Guffy ever provided written notice to the Hospital under Miss.Code Ann. § 11-46-11(2). Therefore, there is no need to address Guffy’s failure to wait the statutory ninety days after providing notice before commencement of her action against the Hospital in any great detail.

¶ 23. The record demonstrates that Guffy failed to wait the statutory ninety days after providing notice before filing suit against the Hospital. Besides the lack of written notice, the record also reveals that Guffy filed suit against the Hospital fifty-five days after the accident occurred on November 14, 2002. Four days later on November 18, 2002, the Hospital’s executive director, Douglas Higginbotham, was served with Guffy’s complaint. As such, it is impossible for Guffy to contend the ninety-day period was met. The MTCA specifically requires the plaintiff to wait ninety days after providing notice before maintaining an action against a governmental entity, stating:

After all procedures within a governmental entity have been exhausted, any person having a claim for injury arising under the provisions of this chapter against a governmental entity or its employee shall proceed as he might in any action at law or in equity; provided, however, that ninety (90) days prior to maintaining an action thereon, such person shall file a notice of claim with the chief executive officer of the governmental entity.

Miss.Code Ann. § 11-^16-11(1) (Rev.2002) (emphasis added).

¶ 24. In Black, 853 So.2d at 1226, this Court in 2003 stated:

There is a mandatory notice requirement on potential plaintiffs which must be satisfied prior to the institution of any tort lawsuit against a governmental entity or one of its employees. Specifically, in an action against a governmental agency “ninety days prior to maintaining an action thereon, such person shall file a notice of claim with the chief executive officer of the governmental entity.” Miss.Code Ann. § 11-46-11(1) (1999).

(Emphasis added).

¶ 25. Furthermore, in Easterling, 928 So.2d at 819, 2006 WL 871302 *5, this Court has gone further and adopted strict compliance as to the ninety-day notice requirement under Miss.Code Ann. § 11-46-11(1). As such, we find that the record clearly demonstrates that Guffy failed to strictly comply with the ninety-day notice requirement under Miss.Code Ann. § 11-46-11(1). Accordingly, we find that the trial court erred in denying the Hospital’s motion to dismiss Guffy’s complaint.

CONCLUSION

¶ 26. For the above and foregoing reasons, we find the trial court committed reversible error in finding that Guffy substantially complied with the notice provisions of Miss.Code Ann. § 11-46-11(2) and denying the Hospital’s motion to dismiss. We find that Guffy did not comply with the notice provisions of Miss.Code Ann. § 11-46-11(2). Furthermore, Guffy did not strictly comply with the statutory ninety-day requirement under Miss.Code Ann. § 11-46-11(1). Therefore, the judgment of the Circuit Court of Jones County, Mississippi, is reversed, and judgment is rendered here dismissing Guffy’s complaint against South Central Regional Medical Center without prejudice.

¶ 27. REVERSED AND RENDERED.

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

      . The whole letter is contained in the separate opinion concurring in result. Fairley, 871 So.2d at 719.


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    BULLOCK BROTHERS TRUCKING COMPANY, INC., and The Estate of Walley Bullock, Appellants v. Charles CARLEY, Appellee.
    No. 2004-CA-00592-COA.
    Court of Appeals of Mississippi.
    Nov. 22, 2005.
    Rehearing Denied June 6, 2006.

      Edward C. Taylor, Gulfport, Nancy L. Siples Brumbeloe, Jackson, attorneys for appellants.
    Glenn Louis White, Petal, Sheila Havard Smallwood, attorneys for appellee.
    Before KING, C.J., IRVING and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Bullock Brothers Trucking Company, Inc., challenges the denial of its motion for judgment notwithstanding the verdict by the Circuit Court of Forrest County. Finding that the trial judge erred in denying the motion, we reverse and render in favor of Bullock Brothers Trucking and the estate of Walley Bullock.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On the night of October 16, 1996, Gary Bullock drank a case of beer and became intoxicated. After his cousin dropped him off at the store to purchase more beer, Bullock walked to the office of his father/employer’s business, Bullock Brothers Trucking. While at the office, Bullock decided to take a truck from the business and drive it to the home of his estranged girlfriend, Shannon McSwain, the daughter of Charles Carley. Bullock testified via deposition that because the door to the office was unlocked, in order to enter he merely had to shove the door open. Bullock entered the office, took the key to a dump truck, and drove it to McSwain’s mobile home. Upon arriving and finding that McSwain was not home, Bullock accidentally backed the truck into the trailer while attempting to turn the truck around. Drunk and already angry at McSwain for having pressed aggravated assault charges against him, Bullock intentionally slammed the truck into the trailer, this time knocking the mobile home off its blocks and into a tree. Bullock then proceeded to Carley’s house and intentionally smashed the dump truck into Carley’s pickup truck. Carley testified that the force of the blow knocked the pickup truck into the garage’s interior wall, causing a great deal of damage to both the house and the truck.

¶ 3. After the incident, Carley instituted a civil action against Gary Bullock, Bullock Brothers Trucking, and the estate of Wal-ley Bullock. Carley proceeded against Bullock Brothers Trucking on a theory of negligent entrustment, asserting that Bullock Brothers had supplied Gary Bullock with the dump truck knowing of Bullock’s propensity to use the truck in a harmful manner. At trial in the Circuit Court of Forrest County, the jury found for Carley and assessed damages at $44,350; it apportioned eighty percent of the fault for the incident to Bullock Brothers and twenty percent of the fault to Gary Bullock, who did not appear at the trial. As a result, a judgment of $35,480 was entered against Bullock Brothers Trucking. Bullock Brothers thereafter filed a motion for judgment notwithstanding . the verdict (JNOV) or, in the alternative, a new trial, which was denied by the trial court. Aggrieved, Bullock Brothers timely appealed to this Court. Finding that the trial court erred in denying Bullock Brothers’s motion for JNOV, we reverse and render.

STANDARD OF REVIEW

¶4. A motion for JNOV requires the trial court to test the legal sufficiency of the evidence supporting the verdict, not the weight of the evidence. Wilson v. Gen. Motors Acceptance Corp., 883 So.2d 56, 63(¶ 21) (Miss.2004). In ruling on a motion for JNOV, the lower court must consider the evidence in the light most favorable to the non-moving party, giving that party the benefit of all favorable inferences that reasonably may be drawn therefrom. Id. In making its evaluation, the trial court must consider not only the evidence offered by the non-moving party, but any uncontradicted evidence offered by the moving party. Corley v. Evans, 835 So.2d 30, 36(¶ 17) (Miss.2003). “If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render.” Wilson, 883 So.2d at 63(¶ 22). Furthermore, when the plaintiff has failed to establish a prima facie case showing the elements of the cause of action, JNOV is proper. Id. However, we must affirm the lower court’s denial of JNOV when there is substantial evidence in support of the verdict such that reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions. Wilson, 883 So.2d at 63(¶ 23).

ISSUE AND ANALYSIS

WHETHER THE TRIAL COURT ERRED IN DENYING BULLOCK BROTHERS’S MOTION FOR JNOV.

¶ 5. In Sligh v. First Nat’l Bank of Holmes County, 735 So.2d 963 (Miss.1999), the Mississippi Supreme Court adopted the Restatement (Second) of Torts definition of negligent entrustment. Liability under this theory is defined as follows:

One who supplies directly or through a third person a chattel for use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

Id. at 969(¶ 32); Restatement (Second) of Torts § 390. Thus, the plaintiff must prove the following elements in order to make out a prima facie case of negligent entrustment: (1) that the defendant supplied a third party with the chattel in question for the use of the third party; (2) that the supplier of the chattel knew or should have known that the third party would use the chattel in a manner involving an unreasonable risk of harm; and (3) that harm resulted from the use of the chattel. Id. In the present case, the pivotal issue is whether Bullock Brothers “supplied” the dump truck to Gary Bullock for his use; after examining all of the evidence, we find that no reasonable juror could determine that it did.

¶ 6. Carley cites this Court’s decision in Savage v. LaGrange, 815 So.2d 485 (Miss.Ct.App.2002), as modifying the definition of negligent entrustment espoused in Sligh and its progeny. In his argument, Carley focuses on the following passage: “Mississippi recognizes that tort liability may arise under the theory of negligent en-trustment against one who makes a dangerous instrumentality available to another person under circumstances that create an unreasonable risk of injury to third persons and such injury, in fact, occurs.” Savage, 815 So.2d at 492(¶ 18) (emphasis added). Carley argues that the Savage court departed from the Restatement’s requirement that the defendant actively “supply” the third party with the chattel in question, opting instead to require merely that the defendant make the chattel available to the third party. However unfortunate our paraphrasing of the definition of negligent entrustment in Savage, a reading of the remainder of the opinion makes it clear that we in no way sought to alter the doctrine. The next sentence in the opinion reads: “The Mississippi Supreme Court in defining the circumstances under which such liability will be imposed, has subscribed to the negligent entrustment definition set out in the Restatement of Torts, Second.” Id. The opinion goes on to provide the Restatement definition of negligent entrustment and applies § 390 to the letter. In fact, the opinion makes it clear that the Restatement definition requires some action on the part of the supplier, stating that “It may be conceded that the record contains some evidence that would tend to suggest that [the alleged supplier of the chattel] did not enjoy a right of possession or control over the vehicle of a sufficient force to uphold a finding that he had affirmatively exercised that power to entrust the operation of the vehicle to [the third party].” Id. at 493(¶ 20) (emphasis added).

¶ 7. Further contradicting Carley’s argument is this Court’s decision in Harrington v. L & B Wood, Inc., 883 So.2d 591 (Miss.Ct.App.2004). In that case, Kendall Daughdrill, without permission, drove a loader off L & B’s lot in an attempt to retrieve his truck from a nearby ditch. After Daughdrill positioned the loader so that it blocked an entire lane of travel on the highway, Harrington’s automobile collided with the loader. Harrington brought suit against L & B on a theory of negligent entrustment, and we affirmed the entry of summary judgment against him. Central to this Court’s analysis was the fact that Daughdrill’s use of the loader was non-permissive. We stated:

We agree with the trial court that, even accepting all of Harrington’s contentions as true, they would not, as a matter of law, support the proposition that his unilateral act of removing L & B’s equipment for his own use without any effort to contact a company representative and without any evidence that this was a customary or accepted practice acquiesced in by L & B could arguably be considered to be permissive.

Id. at 593-94(¶ 11) (emphasis added) (internal page numbers omitted). Our reasoning in Harrington emphasizes that in order for a claim of negligent entrustment to lie, the defendant must have engaged in an affirmative act, such as granting permission, in order to “supply” the chattel to a third party. Carley has failed to provide any authority that holds otherwise.

¶ 8. The record makes it clear that Bullock Brothers did not “supply” Gary Bullock with the dump truck for his use on the night of October 16, 1996. The uncontra-dicted evidence, in fact, shows that Gary Bullock broke into the office of Bullock Brothers in order to take the keys to the truck. Considering the evidence in the light most favorable to Carley, we are unable to find that Bullock Brothers “supplied” Gary Bullock with the dump truck as contemplated by Sligh. Accordingly, we find that because Carley failed to establish a prima facie case of negligent en-trustment, the trial court erred in denying Bullock Brothers’s motion for JNOV.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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

      . Gary’s uncle, Lloyd Bullock, testified that when he visited the office three days after the incident, it appeared that someone had broken through the side of the office. He testified that the door had in fact been barred shut at the time. Furthermore, Gary Bullock stated in a sworn affidavit that he had broken into and illegally entered the office.


text:
    Jimmy Dale KEYS Appellant v. STATE of Mississippi Appellee.
    No. 2004-KA-00795-COA.
    Court of Appeals of Mississippi.
    Dec. 2, 2005.
    Rehearing Denied June 6, 2006.
   ORDER

This matter came before the Court on Motion to Reconsider, filed by Austin Ni-mocks & Associates, attorneys of record for the appellant, seeking to have the Court reconsider its order dismissing the motion to withdraw and for appointment of counsel. The appellant, in this motion, advises the Court that the case is an appeal from Harrison County and that the Mississippi Supreme Court in its Emergency Administrative Order extended the filing of all deadlines from this county. Although the original motion did not ask the Court to extend the deadline for filing a motion for rehearing or that the mandate be recalled, the appellant states that the Court should have considered that the administrative order automatically granted an extension to file such motions.

The Court finds that the motion is well taken and should be granted. The motion to withdraw and motion for appointment of new counsel is remanded to the Circuit Court of Harrison County for thirty (30) days for consideration of whether new counsel should be appointed for the appellant. The mandate previously issued shall be recalled and the time for filing a motion for rehearing shall be extended until thirty (30) days after the circuit court has entered its order on the motion to withdraw and motion for appointment of new counsel.

THEREFORE IT IS ORDERED that the Motion to Reconsider be, and hereby is, granted. The motion to withdraw and motion for appointment of new counsel is hereby remanded to the Circuit Court of Harrison County for thirty (30) days for consideration of whether new counsel should be appointed for the appellant. The mandate previously issued shall be recalled and the time for filing a motion for rehearing shall be extended until thirty (30) days after the circuit court has entered its order on the motion to withdraw and motion for appointment of new counsel.

SO ORDERED.

/s/ L. Joseph Lee L. Joseph Lee, Presiding Judge


author: GRIFFIS, J.,

text:
    Carlos D. THOMAS a/k/a Carlos Thomas, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-CP-01940-COA.
    Court of Appeals of Mississippi.
    Dec. 6, 2005.
    Rehearing Denied June 6, 2006.

      Carlos D. Thomas, Appellant, pro se.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
   GRIFFIS, J.,

for the Court.

¶ 1. On October 29, 2001, Carlos Thomas plead guilty to the charges of armed robbery and aggravated assault. The charge of possession of a firearm by a convicted felon was “retired.” Thomas was sentenced to serve twenty years on the aggravated assault charge and thirty years on the armed robbery charge, with the sentences to run concurrently.

¶ 2. Thomas filed his motion for post-conviction relief on July 22, 2002. On August 8, 2002 Thomas filed a motion to amend his petition, together with his amendments. The trial court found that the defendant set forth three claims in his petition for post-conviction collateral relief, and disregarded the issues in his amended petition, Thomas’ motion for post-conviction relief was denied.

¶ 3. On appeal, Thomas asserts the following errors: (1) whether his conviction violates his Fifth Amendment right to be free from double jeopardy, (2) whether his guilty plea was entered voluntarily (3) whether he was denied effective assistance of counsel, and (4) whether his sentence improperly amounts to a life sentence. We find no error and affirm.

STANDARD OF REVIEW

¶ 4. In reviewing a trial court’s decision to deny a motion for post-conviction relief, the standard of review is clear. The trial court’s denial will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150 (¶ 3) (Miss.Ct.App.2002). However, when issues of law are raised the proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

ANALYSIS

I. Whether Thomas’Fifth Amendment right to be free from double jeopardy ivas violated.

¶ 5. The protection from double jeopardy prevents a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense. Greenwood v. State, 744 So.2d 767, 770 (¶ 14) (Miss.1999). Thomas argues the charges of armed robbery and aggravated assault, based on a single set of events, constitutes double jeopardy. This argument is without merit.

¶ 6. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), established the test to determine whether the double jeopardy bar applies. The Blockburger test states that “[a] single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” Id at 304, 52 S.Ct. 180.

¶ 7. Thomas was indicted for aggravated assault and armed robbery. The crime of aggravated assault is defined in Mississippi Code Annotated Section 97-3-7(2) (Rev. 2000):

as attempting to cause serious bodily injury to another, or causing such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or attempting to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or seriously bodily harm.

The crime of armed robbery is defined in Mississippi Code Annotated Section 97-3-79 (Rev.2000):

as the felonious taking or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon.

¶ 8. A criminal defendant may be prosecuted for more than one offense that arises from a single set of facts where each offense requires proof of a different element. Davis v. State, 750 So.2d 552, 563 (¶ 44) (Miss.Ct.App.1999). In Davis, as here, the defendant was charged with both armed robbery and aggravated assault. Id. Davis argued that the counts should have “merged,” since they arose from the same set of facts. Id. This Court held that the two separate offenses do not embrace the same elements, and one is not a lesser-included offense of the other. Id. Although the charges arise from the same set of facts, the two offenses are legally separate and distinct crimes. Id.

¶ 9. Aggravated assault does not require the taking or attempt to take property. Armed robbery does not require an attempt to cause bodily injury. As in Davis, Thomas could have been found guilty of armed robbery with out actually shooting the victim. Similarly, Thomas could have been found guilty of aggravated assault without actually taking any property. These two crimes require different elements of proof. Based on Davis, this issue is without merit.

II. Whether Thomas’ guilty plea was knowingly, voluntarily, and intelligently entered?

¶ 10. Thomas next claims that he was not informed that his sentence was mandatory, and therefore, he would not be eligible for parole. Because he was not informed that he was ineligible for parole, he argues that he was not fully informed of the effect of his plea.

¶ 11. A plea of guilty is not binding upon a criminal defendant unless it is entered voluntarily and intelligently. Myers v. State, 583 So.2d 174, 177 (Miss.1991). A plea is viewed as voluntary and intelligent when the defendant is informed of the charges against him and the consequences of his plea. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme Court held that a defendant must be told that a guilty plea involves a waiver of the right to a trial by jury, the right to confront adverse witnesses, and the right to protection against self incrimination.

¶ 12. This Court has repeatedly held that a sentencing judge is not required to explain the parole possibilities with a defendant who is pleading guilty. Stewart v. State, 845 So.2d 744, 747(¶ 9) (Miss.Ct.App.2003); White v. State, 751 So.2d 481, 485(¶ 16) (Miss.Ct.App.1999); Shanks v. State, 672 So.2d 1207, 1208 (Miss.1996); Ware v. State, 379 So.2d 904, 907 (Miss.1980). The rationale is that whether or not a defendant is eligible for parole is not a consequence of a guilty plea, but a matter of legislative grace. Id. This issue is without merit.

III. Did Thomas receive effective assistance of counsel?

¶ 13. To prove ineffective assistance of counsel, Thomas must demonstrate that his counsel’s performance was deficient and that this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with Thomas. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. To overcome this presumption, “the defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result would have been different.” Id.

¶ 14. Thomas alleges that he told his court appointed counsel of a psychological disorder and asked her to explore this as a possible defense. He also maintains that he was discharged from the United States Army for reasons related to his mental health and requested that his counsel obtain those records. Thomas claims his counsels failure to pursue an insanity defense, to have him evaluated or to obtain his records from the United States Army constitutes ineffective assistance of counsel.

¶ 15. Thomas offers no evidentiary support for his ineffective assistance claims other than unsubstantiated allegations. In cases involving post-conviction relief, “where a party offers only his affidavit, then his ineffective assistance claim is without merit.” Lindsay v. State 720 So.2d 182, 184(¶ 6) (Miss.1998), Covington v. State, 909 So.2d 160, 162(¶ 9) (Miss.Ct.App.2005). This issue is without merit.

IV. Whether the trial court erred by sentencing Thomas to thirty (SO) years on the charge of armed robbery?

¶ 16. Thomas argues that a sentence of thirty years amounts to a life sentence. Thomas cites statistics that a black man who was twenty years old in 1996 had a life expectancy of 46.7 years. He does not, however, provide a copy of this mortality table for review. Absent proof in support of a motion, the trial court’s decision is presumed correct. Gordon v. State, 349 So.2d 554, 555 (Miss.1977). It is reasonable to assume that Thomas is misinterpreting this mortality table. It is Thomas’ burden to demonstrate some reversible error to this Court. Clark v. State, 503 So.2d 277, 280 (Miss.1987).

¶ 17. At the time of sentencing, Thomas was twenty-five years old. Upon completion of his thirty year sentence he will be fifty-five years old, a relatively young man. We find that this issue is without merit.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF ADAMS COUNTY DENYING PETITION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ADAMS COUNTY.

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


text:
    Coryell TAYLOR a/k/a Cory Taylor a/k/a Cornell Taylor, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01575-COA.
    Court of Appeals of Mississippi.
    Dec. 13, 2005.
    Rehearing Denied June 6, 2006.
    George T. Holmes, Jackson, attorney for appellant.
    Office of the Attorney General by Charles W. Maris, Jeffrey A. Klingfuss, attorneys for appellee.
   GRIFFIS, J.,

for the Court.

¶ 1. Coryell Taylor was convicted on two counts of armed robbery and one count of aggravated assault. Taylor was sentenced to serve thirty-five years in the custody of the Mississippi Department of Corrections on each count of armed robbery, to run concurrently, and twenty years on the count of aggravated assault, with the sentences to run consecutively. On appeal, Taylor argues that his conviction is not supported by legally sufficient evidence. We find no error and affirm.

FACTS

¶ 2. On the night of November 4, 2000, two college students, Larry Boyd, Jr. and Christopher McAdory, traveled from Huntsville, Alabama to Jackson, Mississippi to visit a Mend and attend a football game. Arriving after midnight, they realized that they were lost and in need of gas. They exited the interstate and pulled into a truck stop. While fueling up and waiting for their friend to meet them, they were approached by Coryell Taylor and Edward Ammons. Taylor and Ammons claimed they had been left at the truck stop and asked for a ride.

¶ 3. Boyd and McAdory were met by their Mend and attempted to leave the truck stop. When Boyd and McAdory reentered their car, Taylor and Ammons got in the back seat of the car and told them to drive. Boyd and McAdory’s Mend followed behind in her car. After a few minutes, McAdory, who was driving, was told to stop the car.

¶ 4. A gun was fired from the back seat of the car through the windshield, and Taylor demanded their possessions. Boyd ran from the car and was followed by Taylor, who began shooting at Boyd as he fled. Boyd was shot in the thigh and sustained a serious injury. The entire incident was witnessed by Chasity Lewis.

STANDARD OF REVIEW

¶ 5. In reviewing a sufficiency of the evidence claim, the Court considers the evidence in the light most favorable to the verdict. Bush v. State, 895 So.2d 836, 844 (¶ 16) (Miss.2005). If any reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we uphold the verdict. Id.

ANALYSIS

¶ 6. Taylor argues that there was not sufficient evidence to support his conviction. Taylor asserts that because no one actually saw him shoot Boyd or demand money, then he should have been acquitted. We look at each count.

¶ 7. The elements of the crime of armed robbery are: (1) feloniously taking or attempt to take; (2) from the person or from the presence the personal property of another; (3) against his will; (4) by violence to his person or; (5) by putting such person in fear of immediate injury to his person; and (6) by the exhibition of a deadly weapon. Miss.Code Ann. § 97-3-79 (Rev.2000). Boyd, McAdory, and Lewis identified Taylor as the assailant. Boyd and McAdory testified that Taylor demanded their money and fired a gun and the bullet through the windshield of the car. There was sufficient testimony to support the jury’s verdict that Taylor was guilty of armed robbery. The testimony of one credible witness is sufficient to sustain a conviction. Williams v. State, 512 So.2d 666, 670 (Miss.1987).

¶ 8. The elements of the crime of aggravated assault are: (1) attempt to cause or purposely or knowingly causes serious bodily injury to another, (2) with a deadly weapon or other means likely to produce death or serious bodily harm. Miss.Code Ann. § 97-3-7(b) (Rev.2000). Boyd, McAdory, and Lewis testified that Taylor chased Boyd, as he fled from the car, and fired a gun at him. Boyd was shot in the leg by a bullet and sustained serious injuries. Boyd testified about the extent of his injuries. Accordingly, there was sufficient testimony to support the jury’s verdict that Taylor was guilty of aggravated assault.

¶ 9. We find no merit to the issues raised by Taylor. We affirm.

¶10. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF TWO COUNTS OF ARMED ROBBERY AND ONE COUNT OF AGGRAVATED ASSAULT AND SENTENCE OF THIRTY FIVE YEARS ON EACH COUNT OF ARMED ROBBERY TO RUN CONCURRENTLY AND TWENTY YEARS FOR AGGRAVATED ASSAULT TO RUN CONSECUTIVELY TO THE ARMED ROBBERY SENTENCES IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Ivory JONES, Appellant v. SOUTHERN HEALTHCARE AGENCY and Villanova Insurance Company, in Liquidation (Mississippi Insurance Guaranty Association), Appellees.
    No. 2004-WC-01675-COA.
    Court of Appeals of Mississippi.
    Jan. 3, 2006.
    Rehearing Denied June 6, 2006.

      Al Chadick, attorney for appellant.
    Harris Frederick Powers, Robert S. Up-shaw, Greenwood, attorney for appellee.
   GRIFFIS, J.,

for the Court.

¶ 1. Ivory Jones appeals the decision of the Mississippi Workers’ Compensation Commission, which denied her workers’ compensation claim. The Commission determined that Jones failed to to prove by a preponderance of the evidence that she sustained an injury during the course and scope of her employment with Southern Healthcare Agency. The Circuit Court of Madison County affirmed the Commission’s finding. Jones appeals to this Court and argues that the Commission’s finding was not supported by substantial evidence. We find no error and affirm.

FACTS

¶ 2. From 1993 through 2001, Ivory Jones was employed by Southern Healthcare as a certified nurses assistant. Her employment ended on December 3, 2001.

¶ 3. On December 11, 2001, Jones telephoned her physician, Dr. Earl Fyke, and complained of hip pain from arthritis. She was given instructions to take Advil as needed. On December 17th, Jones saw Dr. Fyke because of pain in her right hip and was given Vioxx. On December 19th, Jones telephoned Dr. Fyke’s office and complained of continued hip pain. She was given instructions to increase her Vioxx dose, and Dr. Fyke’s office called in a prescription for Darvocet. Jones did not report to Dr. Fyke, at any time in December of 2001, that she was injured.

¶ 4. On December 26, 2001, Jones was treated at the St. Dominic’s emergency room. She complained of moderate pain in her right hip. The emergency physician record and the emergency department patient care notes, of her visit to the St. Dominic’s emergency room, state that she had no known injury.

¶ 5. On January 2, 2002, Jones was treated at the Mississippi Baptist Medical Center’s emergency room. Her medical records of this visit indicate that she had right hip and back pain that began three weeks before, was gradual in onset and continuous in nature. Again, the medical records indicated that she reported no injury.

¶ 6. Jones next visited Dr. Fyke on February 25, 2002. During this visit, she complained of back pain. Dr. Fyke took x-rays. His primary finding was that there was facet joint arthritis throughout the lower back and hips. Also, during this visit, Jones did not inform Dr. Fyke that she suffered an injury which precipitated the pain. Thereafter, Dr. Fyke’s records show that Jones requested, on March 7, 2002, Lorcet Plus for her back pain and was given a prescription. On March 15, 2002, Jones was informed of the results of her bone scan and x-rays, Dr. Fyke’s records indicate that she was also given a prescription for Darvocet on this date.

¶ 7. On March 28, 2002, Jones filed her petition to controvert with the Mississippi Workers’ Compensation Commission. She alleged that she was injured in November of 2001. No specific date was provided.

¶ 8. On May 21, 2002, Jones’ deposition was taken. Thereafter, on June 28, 2002, Jones visited Dr. Fyke once again. The record of the June 28th visit indicated that Jones “emphasized to me [Dr. Fyke] the fact that she was injured while working for a group that provides personnel to nursing homes, hospitals, etc.” The note further details Jones’ account of her injury. This was the first indication that Jones reported to Dr. Fyke that an injury precipitated her pain.

¶ 9. This matter was heard on February 3, 2003, before an administrative law judge. On March 18, 2003, the administrative judge entered her opinion that denied workers compensation benefits to Jones. Both the Full Commission and the Madison County Circuit Court affirmed her decision.

STANDARD OF REVIEW

¶ 10. It is well settled that the Commission is the ultimate finder of fact, and we must defer to its findings when they are supported by substantial evidence. Financial Institute Ins. Service v. Hoy, 770 So.2d 994, 997(¶ 6) (Miss.Ct.App.2000). To reverse the Commission’s decision, we must conclude that the “decision is erroneous and contrary to the weight of the evidence.” Id. “Substantial evidence, though not easily defined, means something more than just a ‘mere scintilla’ of evidence, [yet] it does not rise to the level of a ‘preponderance of the evidence.’ Substantial evidence can further be said to be evidence ‘affording a substantial basis of fact from which the fact in issue can be reasonably inferred’.” Id. (quoting Delta CMI v. Speck, 586 So.2d 768, 773 (Miss.1991))(other citations omitted).

ANALYSIS

¶ 11. The only issue of this appeal whether there is substantial evidence to support the Commission’s finding that Jones failed to prove a causal connection between her condition and her employment. Accordingly, our function is to determine whether there is substantial credible evidence to support the Commission’s factual determination. South Central Bell Telephone Co. v. Aden, 474 So.2d 584, 589 (Miss.1985).

¶ 12. The administrative judge found that at the time of the alleged accident Jones was assigned to care for an Alzheimer’s patient, residing at St. Catherine’s Village. Jones testified that the accident occurred while she was reaching out for her patient. After the accident, she continued to assist the patient and told no one at St. Catherine’s about the accident.

¶ 13. The evidence presented contained numerous instances of inconsistent testimony by Jones. Jones indicated that the following morning someone with Southern Healthcare called and told her not to go back to care for Dr. Parker because she could not do the things for him that he needed. Jones testified that she did not report her injury, rather they told her she could not lift him. She stated that when she was called about another job, she reported the accident although she does not recall who she spoke with.

¶ 14. The testimony of Southern Healthcare employees indicate that Jones never reported an injury. Five Southern Healthcare employees, including Jones’ supervisor, testified that Jones never reported any accident or injury. In addition, the Southern Healthcare employees testified that Jones declined assignments because she was “down on her back,” but never mentioned hurting her back. They claim that they first became aware of her claim when they received the petition to controvert!

¶ 15. The medical testimony indicated that Dr. Fyke first treated Jones on September 4, 1997, more than four years prior to the alleged injury. Jones provided a medical history of arthritis. According to the medical records, she had a history of low back pain and pain in the right hip and pelvis, which caused her difficulty lifting during her 1997 visit with Dr. Fyke. Jones’ petition did not allege that the injury aggravated a preexisting condition. In fact, Jones testified that she had not been treated previously for back or hip pain but only for arthritis.

¶ 16. The administrative judge concluded that Jones failed to prove by a preponderance of the evidence that she sustained an injury during the course and scope of her employment with Southern Healthcare, which resulted in any injury or disability. Further, the judge found the testimony presented by Southern Healthcare to be more persuasive than that of Jones.

¶ 17. The Commission adopted the administrative judge’s opinion and evaluation of the evidence. The determinations of the Commission enjoy the presumption that it made proper determinations as to the weight and credibility of the evidence and its findings of fact are binding on this Court. Fought v. Stuart C. Irby, Co. 523 So.2d 314, 317 (Miss.1988). We agree. Therefore, we affirm the finding of the Mississippi Workers’ Compensation Commission.

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

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


text:
    Dorothy EDWARDS, Appellant v. WAL-MART and American Home Insurance Company, Appellees.
    No. 2005-WC-00167-COA.
    Court of Appeals of Mississippi.
    April 11, 2006.

      Lisa M. Ross, Jackson, attorney for appellant.
    Roxanne P. Case, Michael E. D’Antonio, Jr., Jackson, attorneys for appellees.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Dorothy Edwards filed a workers’ compensation claim against her employer Wal-Mart and its insurance carrier, American Home Insurance Company (collectively referred to as “Wal-Mart”). The claim was dismissed, because Edwards did not file the required “Prehearing Statement.” Edwards moved for reconsideration, but the Workers’ Compensation Commission ruled that her motion came too late. On appeal to the Lincoln County Circuit Court, the Honorable Mike Smith affirmed the Commission’s decision.

¶ 2. Edwards now appeals to this Court and asserts the following errors: (1) Mississippi Code Annotated Section 71-3M7 does not apply, (2) the trial court erred in upholding the Commission’s decision under Section 71-3-53, (3) the Commission violated the Mississippi Administrative Procedures Act when it did not give her thirty days notice of its intent to dismiss her claim, (4) the Commission exceeded its legislative authority by shortening the time period to prosecute her claim, and (5) the Commission and trial court abused their discretion by not considering alternative sanctions. We find no error and affirm.

FACTS

¶ 3. On March 20, 2001, Edwards filed a Petition to Controvert a claim against Wal-Mart. She claimed that she had suffered mental injuries during July of 2000.

¶ 4. The administrative judge conducted a periodic case review and noticed that Edwards had not filed a completed pre-hearing statement. Because Edwards had not yet reached maximum medical improvement, a prehearing statement was in fact premature at that point. However, Edwards had not asked for an extension of time. As a result, on March 22, 2002, the administrative judge dismissed Edwards’s claim, without notice or a hearing, due to the absence of the required prehearing statement. The administrative judge’s decision became final on April 11, 2002.

¶ 5. On November 7, 2003, Edwards filed a completed prehearing statement and then filed a motion to reinstate her case. Wal-Mart filed an objection. Nevertheless, the administrative judge reinstated the case on December 10, 2003. Wal-Mart then filed a motion for reconsideration.

¶ 6. During a hearing on March 5, 2004, Wal-Mart pointed out that the motion to reinstate was filed over a year after the dismissal became final. Four days later, the administrative judge once again dismissed Edwards’s claim. The administrative judge’s order stated that the dismissal was due to Edwards’s failure to move for reinstatement within one year under “Section 71-3-47.”

¶ 7. Edwards appealed the administrative judge’s dismissal to the Commission. The Commission affirmed the dismissal. Edwards then appealed to the Lincoln County Circuit Court. However, the circuit judge affirmed the decision on a different basis. The circuit judge found the reinstatement to be time barred under the one year time period under Section 71-3-53 (Rev.2000) and the two year period in Section 71-3-35 (Rev.2000).

STANDARD OF REVIEW

¶ 8. An appellate court must defer to an administrative agency’s findings of fact if there is even a quantum of credible evidence which supports the agency’s decision. Hale v. Ruleville Health Care Ctr., 687 So.2d 1221, 1224 (Miss.1997). “This highly deferential standard of review essentially means that this Court and the circuit courts will not overturn a Commission decision unless said decision was arbitrary and capricious.” Id. at 1225; Ga. Pacific Corp. v. Taplin, 586 So.2d 823, 826 (Miss.1991). Questions of law will be reviewed de novo. Smith v. Jackson Constr. Co., 607 So.2d 1119, 1125 (Miss.1992).

ANALYSIS

I. Did the trial court misapply § 71-3-⅛7 to Edwards’s case?

¶ 9. Edwards claims that Mississippi Code Annotated Section 71-3-47 (Rev. 2000) was incorrectly applied and argues two reasons. First, she claims that Section 71-3-47 does not set a one year period. Second, she claims that she did not get notice or a hearing before the administrative judge dismissed her case.

¶ 10. Section 71-3-47 of the Mississippi Code Annotated provides:

Except as otherwise provided by this chapter, the details of practice and procedure in the settlement and adjudication of claims shall be determined by rules of the commission, the text of which shall be published and be readily available to interested parties.
The commission shall have full power and authority to determine all questions relating to the payment of claims for compensation. The commission shall make or cause to be made such investigation as it deems necessary and, upon application of either party or upon its own initiative, shall order a hearing, shall make or deny an award, and shall file the same in its office.
Informal conferences and hearings in contested cases may be conducted by a duly designated representative of the commission. Upon the conclusion of any such hearing, the commission’s representative shall make or deny an award, and file the decision in the office of the commission. Immediately after such filing, a notice of decision shall be sent to all interested parties. This decision shall be final unless within twenty (20) days a request or petition for review by the full commission is filed.

¶ 11. Edwards is indeed correct that this statute does not mention a one-year limitations period. Instead, the statute only makes reference to a twenty day period in which an administrative judge’s decision will become final, if not reviewed by the Full Commission. However, Section 71-3-47 grants the Commission “full power and authority to determine all questions relating to the payment of claims for compensation.” The Commission may establish the “practice and procedure” for the “adjudication of all claims.” Id. Procedural Rule 5 provides that the “[fjailure of the claimant to timely file the prehearing statement may result in the dismissal of the case or other sanctions.” Due to Edwards’s untimely filing, there was no error in the administrative judge’s dismissal of this action.

¶ 12. We are, however, concerned with the administrative judge’s indecision in the reinstatement of Edwards’s claim. The question we then turn to is whether the administrative judge erred when she dismissed Edwards’s claim, the second time, for Edwards’s “failure to request a reinstatement within the one-year period as set forth in Miss.Code Ann. § 71-3-47 (as amended).”

¶ 13. The administrative judge’s first order of dismissal was dated March 22, 2002. Pursuant to Section 71-3^17, this order became final on April 11, 2002, because Edwards’s did not seek Commission review of this decision within twenty days. It appears that the one-year period the administrative judge referred to was the one-year period in which the Commission has continuing jurisdiction over claims. Miss.Code Ann. § 71-3-53 (Rev.2000). We discuss the applicability of this statute below. However, we find no reversible error on this issue.

¶ 14. We look now to Edwards’s second contention with this statute. Edwards claims that since the administrative judge originally dismissed the case without a hearing, then the decision never became final under Section 71-3-47. Thus, she argues that the Commission did not lose continuing jurisdiction to hear her motion for reinstatement.

¶ 15. The Workers’ Compensation Act anticipates a hearing before final disposition. Miss.Code Ann. §§ 71-3-47 and 71-3-53 (Rev.2000). Ordinarily, there should be a hearing before a case is dismissed. Scott Builders, Inc. v. Dependent of Layton, 244 Miss. 641, 648, 145 So.2d 165, 167 (1962). “Unless denial is based on matters which are jurisdictional or in abatement, the Workmen’s Compensation Commission ordinarily should not dismiss a claim on a motion to dismiss, where it has not heard all of the evidence pertinent to the issues.” Id.

¶ 16. “Abatement” is defined as “the suspension or defeat of an action for a reason unrelated to the merits of the claim.” Black’s Law Dictionary 2 (7th ed.1999). Since Edwards’s claim was dismissed on a procedural matter, rather than on its merits, this is a matter in abatement. Therefore, it did not warrant a hearing before it was initially dismissed. Scott Builders, 244 Miss, at 648, 145 So.2d at 167. Since she was not entitled to a hearing, we need not decide whether lack of a hearing prevented the administrative judge’s order from becoming final. Accordingly, we find no reversible error on this issue.

II. Did the tidal court misapply §71-3-53?

¶ 17. In the alternative, Edwards assumes that the administrative judge intended to dismiss her reinstatement because Edwards failed to file her motion within the one-year period set forth in Section 71-3-53. Edwards claims this one-year period only applies in cases in which an award has been made. Wal-Mart counters that a dismissal is a “rejection of a claim,” as contemplated in the statute.

¶ 18. Mississippi Code Annotated Section 71-3-53 provides for the Commission’s continuing jurisdiction over claims:

Upon its own initiative or upon the application of any party in interest on the ground of a change in conditions or because of a mistake in a determination of fact, the commission may, at any time prior to one (1) year after date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one (1) year after the rejection of a claim, review a compensation case, issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation. Such new order shall not affect any compensation previously paid, except that an award increasing the compensation rate may be made effective from the date of the injury; and if any part of the compensation due or to become due is unpaid, an award decreasing the compensation rate may be made effective from the date of the injury, and any payment made prior thereto in excess of such decreased rate shall be deducted from any unpaid compensation in such manner and by such method as may be determined by the commission.

¶ 19. Edwards’s argument that this statute only applies where there has been an award of compensation is without merit. The wording of the statute indicates that it applies in situations where there has been no compensation award. For example, it states that the Commission may review and or modify a case within one year after the date of the last payment of compensation, “whether or not a compensation order has been issued.” Id. It further provides for one year of continuing jurisdiction starting from the “rejection of a claim,” which necessarily means cases in which there was no award. Finally, one of the things for which the Commission may exercise its continuing jurisdiction is to “issue a new compensation order which may,” among other things, “award compensation.” Id. This option, when read in conjunction with the other options, presupposes that there was no award to begin with. Accordingly, we find that this issue lacks merit.

¶ 20. Edwards also argues that, instead of the one-year statute of limitations, the two year statute of limitations applies to her claim. She claims that if this Court were to allow the Commission to use the one-year from rejection of claim deadline under Section 71-3-53, then we would im-permissibly allow the Commission to shorten the two year from date of injury deadline under Section 71-3-35. Thus, she claims it would allow the Commission to exceed its statutory authority.

¶ 21. We find that this argument does not apply to Edwards. Edwards was injured in July of 2000. Hence, if we assume the injury was on July 31, 2000, then Edwards would have had until July 31, 2002, to file for compensation benefits. Her claim was initially dismissed on March 22, 2002. This dismissal became final April 11, 2002. She had until April 11, 2003, to ask for Commission review of the dismissal. So in her case, the one-year rejection of claim deadline did not shorten the two-year date of injury deadline. Additionally, even using Edwards’s calculation, the two-year deadline for filing under Section 71-3-35 would have expired before Edwards filed her motion for reinstatement, which was filed in November of 2003. We find no merit to this issue.

III. Bid the Commission violate the Mississippi Administrative Procedures Law by applying a new rule to Edwards’s case?

¶ 22. Edwards’s next argument is that the Commission had never before placed the one-year statute of limitations on motions for reinstatement. Edwards claims that this was a new rule announced in the Commission’s decision in Russell v. City of Vicksburg, MWCC No. 98-04704-G-8395 decided June 17, 2003. She claims that because this was a new rule, the Commission violated the Mississippi Administrative Procedures Law when it retroactively applied the new rule in her case. Wal-Mart counters that it was not a new rule.

¶ 23. We find no merit to this argument and no need to address this issue. Edwards’s argument, to support this issue, is that the two-year statute of limitations should apply. As discussed above and as she has conceded, the two-year period expired before Edwards filed her motion to reinstate.

IV. Should the Commission have considered alternative sanctions?

¶ 24. Edwards argues the Commission abused its discretion when it failed to consider less drastic sanctions for her procedural shortcomings. Wal-Mart argues that the Commission did not have the jurisdiction to consider any other sanctions, since Edwards failed to move for reconsideration in a timely manner. Wal-Mart also claims that the dismissal was proper. We agree with Wal-Mart. Edwards failed to take the necessary action to appeal her dismissal to the Commission. We find no error.

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

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


author: ROBERTS, J.,

text:
    Frank HUGULEY and Sheila Huguley, Appellants v. IMPERIAL PALACE OF MISSISSIPPI, INC., Appellee.
    No. 2004-CA-02457-COA.
    Court of Appeals of Mississippi.
    May 30, 2006.

      Kathleen L. Smiley, Gulfport, attorney for appellant.
    Tina Rose Singletary, Britt R. Single-tary, Jackson, Scott Derrick Smith, attorneys for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. Frank Huguley and his wife, Sheila, appeal from the decision of the Harrison County Circuit Court granting summary judgment for Imperial Palace of Mississippi, Inc. Huguley, accompanied by his sister, Elizabeth Dale, slipped and fell on his way to his ear in the casino’s parking lot.

¶ 2. On appeal, the Huguleys raise these issues:

(1)The circuit court committed manifest error when it disregarded facts contained in both the deposition testimony and the affidavit of Mrs. Dale, a witness to the accident.
(2) The circuit court committed manifest error when it found that Mrs. Dale's affidavit was a change in testimony and therefore was disregarded.
(3) The circuit court committed reversible error when it granted a motion for summary judgment on behalf of the ap-pellee given the existence of material facts in dispute, existing in this case.

¶ 3. We find no error and affirm.

FACTS

¶ 4. On August 18, 2001, Frank Huguley along with his wife, Shelia Huguley, and his sister, Elizabeth Dale, were visiting the Imperial Palace Casino in Biloxi, Mississippi. Mr. Huguley and his sister left the casino and were on their way to his car which was parked in the parking garage between the third and fourth floor. Mr. Huguley and Mrs. Dale exited the elevator on the fourth floor of the garage and walked in a downward sloping direction toward the car. It had been raining that day. Mrs. Dale was walking ahead of Mr. Huguley when he fell, striking his head on the concrete ramp.

¶ 5. Mr. Huguley was taken to the Biloxi Regional Medical Center where he was diagnosed with a subarachnoid hemorrage of the brain. Mr. Huguley developed a concessive brain injury with post-concussion syndrome and lost his sense of smell and taste and developed memory problems.

¶ 6. Both Mr. Huguley and Mrs. Dale gave deposition testimony concerning the accident. For the most part, Mr. Huguley remembered nothing of the incident. Mrs. Dale testified numerous times during her deposition that she saw a “sheen” on the cement surface of the parking garage where Mr. Huguley slipped. She also testified that the ramp was “very slippery.” Neither of them was able to identify anything else which could have caused the fall. Neither saw any oil or grease in the area where the fall occurred.

DISCUSSION

¶ 7. Mississippi Rule of Civil Procedure 56(c) states that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” M.R.C.P. 56(c).

¶ 8. In considering whether a motion for summary judgment is appropriate, the court should review all the evidence in the light most favorable to the non-moving party, including admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. Daniels v. GNB, Inc., 629 So.2d 595, 599 (Miss.1993). Any doubt has to whether there is a genuine issue of material fact should be resolved in favor of the non-moving party. Mantachie Natural Gas v. Mississippi Valley Gas Company, 594 So.2d 1170, 1172 (Miss.1992). The party seeking summary judgment has the burden of persuading the court that there are no material issues and that they are entitled to summary judgment as a matter of law. Daniels, 629 So.2d at 600.

¶ 9. Once a motion for summary judgment has been made, the non-moving party may not rely solely on the allegations or denials of the pleadings, the response must set forth specific facts showing that a genuine issue exists for trial. Corey v. Skelton, 834 So.2d 681, 684(¶7) (Miss.2003). The motion for summary judgment may not be defeated by general allegations or unsupported speculation or denials of material fact. Adams v. Cinemark USA Inc., 831 So.2d 1156, 1161(¶ 19) (Miss.2002).

¶ 10. More specifically, for the plaintiff to recover in a slip and fall case in Mississippi, he must “(1) show that negligent act of the defendant cause his injury; or, (2) show that the defendant had actual knowledge of a dangerous condition and failed to warn the plaintiff; or, (3) show that the dangerous condition existed for a sufficient amount of time to impute constructive knowledge to the defendant, in that the defendant should have known of the dangerous condition.” Downs v. Choo, 656 So.2d 84, 86 (Miss.1995).

¶ 11. Neither the plaintiff nor Mrs. Dale offered any testimony that the “oil-like residue” referred to in the complaint was placed there by an employee of Imperial Palace or caused to be placed there by any negligent act of an employee of Imperial Palace. In fact, there was no testimony of any “oil-like” substance on the parking garage floor. There was no testimony showing how long the “residue” or “sheen” had been on the parking garage floor or that Imperial Palace or its employees had actual knowledge of its presence or should have been aware of it. Also, there was no testimony to show that Imperial Palace should have had constructive knowledge of a dangerous situation. In fact, the plaintiffs produced no evidence connecting Imperial Palace with the slip and fall at all.

Mrs. Dale’s Testimony and Affidavit

¶ 12. The appellants’ first two issues concern whether the court properly considered the deposition testimony and affidavit of Mr. Huguley’s sister, Mrs. Dale. At least twelve times, according to the appellants, Mrs. Dale testified that she saw a “sheen” on the cement surface of the garage ramp where Mr. Huguley fell. Specifically, Mrs. Dale testified:

Defense counsel: So as far — would I correct to just say, to try to make it clear, that you didn’t observe any grease or car oil or anything like that in the area where he fell?
Mrs. Dale: All I know, it was very wet and slip — slippery.
Defense counsel: Okay.
Mrs. Dale: That’s all I can say.
Defense counsel: Okay. Let me ask my question again. Did you see any oil or grease in the area where your brother fell while you were standing there? Oil or grease?
Mrs. Dale: Did I — where he was?
Defense counsel: Yeah, where he was.
Mrs. Dale: I didn’t have my mind on— on that, you know
Defense counsel: Okay. So—
Mrs. Dale: I noticed it was a sheen on the material of the concrete, you know.
Defense counsel: Okay. So my question was: Since you didn’t notice, would it be right to say that you did not notice any oil or grease on the floor where he fell?
Mrs. Dale: I did not notice because my mind was on him.

¶ 13. In the affidavit produced in response to the motion for rehearing, Mrs. Dale stated that she did not observe any oily water in the area in which Mr. Hugu-ley fell. In her deposition testimony, she had stated that she did not notice any oil or grease in the area. The court felt that this was an unexplained change in testimony, but not sufficient to defeat summary judgment, citing Foldes v. Hancock Bank, 554 So.2d 319, 321 (Miss.1989). For whatever reason, this variation in testimony does not show that the trial court disregarded the testimony of Mrs. Dale. As set out in the court’s findings, the testimony of Mrs. Dale in either form failed to show a material factual dispute such that summary judgment was not correct.

¶ 14. Merely proving that an accident occurred on a business premise is not sufficient to prove liability or by itself prove that a dangerous condition existed at the time of the accident. Robinson v. Ratliff, 757 So.2d 1098, 1101(¶ 10) (Miss.Ct.App.2000). There must be proof that the business was negligent. Here there is no proof that Imperial Palace was in any way negligent. The testimonies of Mr. Huguley and Mrs. Dale cannot and do not show what caused Mr. Huguley to fall or any negligence on the part of Imperial Palace in the maintenance of construction of the parking garage.

¶ 15. We find that the court properly granted summary judgment.

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

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