author: EASLEY, Justice,

text:
    Kathy A. DEARMAN v. Ron CHRISTIAN, M.D.
    No. 2006-CA-01759-SCT.
    Supreme Court of Mississippi.
    Aug. 23, 2007.

      Robert Lewis Spell, G. Todd Burwell, William Larry Latham, Ridgeland, attorneys for appellant.
    John Lewis Hinkle, IV, Chris J. Walker, Ridgeland, attorneys for appellee.
    Before WALLER, P.J., EASLEY and GRAVES, JJ.
   EASLEY, Justice,

for the Court.

STATEMENT OF THE CASE

¶ 1. This case involves a partial summary judgment in favor of Dr. Ron Christian (Dr. Christian) on the issues of vicarious liability and negligent supervision. On February 15, 2001, Kathy Dearman (Dearman) filed suit pursuant to the Mississippi Tort Claims Act (MCTA) against Montfort Jones Memorial Hospital (the Hospital) and Dr. Christian in the Circuit Court of Attala County, Mississippi. In her complaint, Dearman asserted claims for medical malpractice and negligence against Dr. Christian and vicarious liability and negligence against the Hospital. Dr. Christian was the Hospital’s radiologist who was employed on a contractual basis.

¶ 2. On May 31, 2000, Dearman went to the Hospital to have testing conducted for back and flank pain. The testing required imaging services in the form of administration of a contrast solution into her left arm. The radiology technician, Herbert Hill, injected the contrast dye into Dearman’s arm. Thereafter, Dearman’s arm began to swell due to extravasating (the flow of fluid into tissue). As a result of these actions, Dearman had to undergo surgery to open her arm and drain the contrast dye, as well as surgery to graft skin onto her arm at the incision site.

¶3. On August 3, 2005, Dr. Christian filed a motion for partial summary judgment on the issues of vicarious liability and negligent supervision. On August 21, 2006, the trial court rendered an oral decision granting partial summary judgment to Dr. Christian. Following this ruling, the trial court also entered an order and opinion for partial summary judgment as to the separate defendant, Dr. Christian, on September 14, 2006. The trial court found that (1) Dr. Christian was not vicariously liable under the theory of respondeat superior, and (2) Dr. Christian was not liable for the claim of negligent supervision, since there was no evidence that he was present at the time of Dearman’s procedure, and there was no evidence that he exercised control or supervision over the Hospital’s staff. The trial court also entered a final judgment of dismissal with prejudice, dismissing the vicarious liability and negligent supervision claims against Dr. Christian only.

¶ 4. On October 4, 2006, Dearman timely filed an appeal to this Court.

FACTS

¶ 5. Dearman was referred by her physician, Dr. Thaggard, to the Hospital to have a CT scan procedure. She arrived at the Hospital’s emergency room on May 31, 2000, at approximately 8:00 a.m. On the day of the procedure, the emergency room nurse inserted a needle into Dearman’s arm with a Hep-Lock, a type of catheter, attached to it. Dearman was given some Benadryl by the emergency room nurse prior to her arrival at the radiology department. She then went to the radiology department at approximately 8:30 a.m. Herbert Hill (Hill) was the x-ray technician who performed the procedure on Dearman. Hill never inserted a needle into Dearman’s arm.

¶ 6. Hill stated that he checked the Hep-Lock in Dearman’s arm by flushing it with saline solution. Hill then gave Dearman some of the contrast solution through the catheter and asked her if she experienced any pain. Hill stated that Dearman told him that she was doing okay. Then Hill injected more of the contrast solution. Hill again asked Dearman again if she felt any pain or pressure. Hill stated that Dearman told him that everything was okay.

¶ 7. Christopher Threadgill, the director of radiology at the Hospital, stated that he supervised Hill, and that Hill was his employee. Threadgill was present when Hill began the procedure and administered the first syringe of the contrast fluid and asked Dearman if she felt any pain, swelling, or burning with the injection. Then, Threadgill pushed the start button for the scanner and saw Hill insert the second syringe. Threadgill again heard Hill ask Dearman if she felt any pain, swelling, or burning with the injection. Threadgill stated that Dearman reasserted that she was not in any pain. Thereafter, Thread-gill left the room. Hill later told Thread-gill that he had flushed the IV with saline solution.

¶ 8. However, Dearman’s deposition testimony contradicted Hill when she stated that her arm began to hurt almost immediately after she had to raise her arms for the procedure. She said her arm felt like it was being crushed. Dearman said she told the lab technician that her arm hurt and something was wrong. She said her arm became “puffy” and began to swell.

¶ 9. Thereafter, Dr. Christian arrived in the x-ray room and examined Dearman’s arm. Dr. Christian administered some warm soaks and periodically checked Dearman’s arm. When Dearman’s arm did not improve, Dr. Christian went with Dearman to Dr. Thaggard’s office.

¶ 10. Dearman stated that she left the hospital around 12:00 p.m. and walked to Dr. Thaggard’s office with Dr. Christian. Dr. Thaggard stated that he was going to call a surgeon. Dr. Thaggard then told Dearman to call her husband, go home, pack her bags, and meet him at 3:00 p.m. Dearman stated that her arm began to get pink and later turned a pale blue and then became more and more blue. She said the arm had been blue for a long time before she arrived at Dr. Thaggard’s office with Dr. Christian. Dearman underwent surgery to drain the contrast from her arm.

¶ 11. Following the trial court’s grant of partial summary judgment, Dearman appealed to this Court.

DISCUSSION

¶ 12. This Court set forth the standai'd of review for summary judgment, as follows:

“We employ the de novo standard in reviewing a trial court’s grant of summary judgment.” Brown v. J.J. Ferguson Sand & Gravel Co., 858 So.2d 129, 130 (Miss.2003) (citing O’Neal Steel, Inc. v. Millette, 797 So.2d 869, 872 (Miss.2001)). The moving party shall be granted judgment “if the pleadings, depositions, answers to interrogatories and admissions on file, together with 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.” Miss. R. Civ. P. 56(c).
“Summary judgments, in whole or in part, should be granted with great caution.” Brown, 444 So.2d at 363. However, “[sjummary judgment is mandated where the respondent has failed ‘to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.’ ” Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205, 1214 (Miss.1996) (citing Galloway v. Travelers Ins. Co., 515 So.2d 678, 683 (Miss.1987) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986))).

Smith v. Gilmore Mem. Hosp., Inc., 952 So.2d 177 (Miss.2007).

¶ 13. Dearman argues that the trial court erred by granting partial summary judgment to Dr. Christian on the issues of vicarious liability and negligent supervision, as there were genuine issues of material fact. It is important to note that any allegations of medical negligence by Dr. Christian after the extravasation occurred are not before the Court. The trial court ruled only on the limited issues of vicarious liability and negligent supervision, holding as follows:

4.The evidence is undisputed that Dr. Christian was employed as an independent contractor of Montfort Jones Memorial Hospital on May 31, 2000. It is undisputed that Dr. Christian was not the employer of any of the Montfort Jones’ employees involved in the treatment of the Plaintiff on May 31, 2000.
5. Further, Mississippi law provides that “[t]he routine acts of treatment of which an attending physician may reasonably assume may be performed in his absence by nurses of a modern hospital as part of their usual and customary duties and execution of which does not require specialized medical knowledge, are administrative acts for which negligence in their performance is imputable to the hospital.” Hunnicutt v. Wright, 986 F.2d 119, 123 (5th Cir.1993).
6. The facts in this case demonstrate that the employees of Montfort Jones' routinely administered contrast in Dr. Christian’s absence. Further, the act of administering contrast was a duty that Dr. Christian could reasonably assume could be performed in his absence.
7. Given the facts presented, Dr. Christian cannot be vicariously liable for the actions of the Montfort Jones’ employees who provided treatment to the Plaintiff on May 31, 2000.
8. Similarly, under the theory of negligent supervision, there was not evidence presented by the Plaintiff that created a genuine issue of material fact as to the Plaintiffs assertion that Dr. Christian was present at Montfort Jones Memorial Hospital during the administration of contrast by the Montfort Jones employees on May 31, 2000.
9. There was also no evidence presented by the Plaintiff that Dr. Christian was even aware that the Plaintiffs procedure was scheduled for the morning of May 31, 2000, or that Dr. Christian had delegated any responsibilities to the Montfort Jones’ employees as his agents on May 31, 2000, in regards to the administration of contrast to the Plaintiff.
10.' As such, there is no credible evidence that Dr. Christian exercised direction, control or supervision over the Montfort Jones employees involved in the treatment of the Plaintiff on May 31, 2000.
11. For the reasons set forth above, the Court finds and determines that pursuant to Rule 54(b) of the Mississippi Rules of Civil Procedure there is no just reason for delay and expressly directs the entry of Final Judgment of Dismissal with Prejudice as the claims of vicarious liability and negligent supervision by the Plaintiff, Kathy A. Dearman, against the Separate Defendant, Ron Christian, M.D. All other claims of the Plaintiff remain outstanding.

(Emphasis added).

I. Vicarious Liability.

¶ 14. Dearman argues that the trial court erred by finding that Dr. Christian was not vicariously liable for actions of the radiology department employees. She relies on Winters v. Wright, 869 So.2d 357, 367 (Miss.2003), for the proposition that Dr. Christian would be vicariously liable for negligent acts of non-employees if performed pursuant to the direction and control of the physician. She claims that Dr. Christian did exercise direction and control over the radiology technician who injected the contrast into her arm.

¶ 15. Dr. Christian argues that none of the Hospital staff was under his direction or control. He asserts that he was not even aware that Dearman was having the procedure performed, and he was not present at the Hospital at the time of the procedure. In addition, Dr. Christian maintains that he does not have a twenty-four-hour-a-day, seven-day-a-week duty to supervise Hospital employees according to Partin v. North Mississippi Medical Center, 929 So.2d 924, 936 (Miss.Ct.App.2005), cert. denied, 929 So.2d 923 (Miss.2006). Furthermore, Dr. Christian contends that the trial court was correct in finding that the procedure performed by Hill was a “routine act” pursuant to Hunnicutt v. Wright, 986 F.2d 119, 123 (5th Cir.1993).

¶ 16. In Winters, the plaintiff suffered what she described as burns to her buttocks and thigh as a result of a heating blanket used on her during surgery. Winters, 869 So.2d at 359. A jury found in favor of the defendants. Id. at 361. On appeal, this Court found that two instructions pertaining to vicarious liability were not in conflict. Id. at 366-67. In its reasoning, this Court held:

In applying Mississippi law, the Fifth Circuit stated that “the law imposes liability on a physician for the negligence of a nurse only if the nurse committed the negligent acts or omissions pursuant to the direction and control of the physician.” Hunnicutt v. Wright, 986 F.2d 119, 124 (5th Cir.1993).

Id. at 367. This Court also reasoned as follows:

If Dr. Wright had directed the acts or had a right to do so, then it follows that he knew or should have known about them.
Dr. Wright testified repeatedly that he was unaware that the blanket was on the table. Further, operating room technicians and nurses testified that the heating blanket stayed on the table in that particular operating room and that it was routinely used by the nurses without direction by the physician. As the Fifth Circuit has stated, “the routine acts of treatment which an attending physician may reasonably assume may be performed in his absence by nurses of a modern hospital as part of their usual and customary duties, and execution of which does not require specialized medical knowledge, are merely administrative acts for which negligence in their performance is imputable to the hospital.” Hunnicutt, 986 F.2d at 123 (citing Clark v. Luther McGill, Inc., 240 Miss. 509, 127 So.2d 858, 861 (1961)). Thus, there must be some connection be it actual or imputed knowledge of the negligent act by the physician. We find this allegation of error to be without merit.

Id.

¶ 17. In Partin, 929 So.2d at 936, the Court of Appeals affirmed summary judgment in favor of Dr. Sharp on a theory of vicarious liability. Dr. Sharp was Partin’s treating physician, however, prior to Par-tin’s death, Dr. Sharp informed the family that he would be going out of town and that Dr. Gray would be on-call for him. Id. at 935. During Dr. Sharp’s absence, Partin died. Id. at 928. The evidence showed that Dr. Sharp was off-duty and off-call at the time of Partin’s death. Id. at 935.

¶ 18. The Court of Appeals recognized that the law provides for a “non-delegable duty upon physicians in the care and treatment of their patients.” Partin, 929 So.2d at 936. The court further held:

[W]e do not believe that this non-delega-ble duty should be understood to create vicarious liability for a doctor who is off-duty, off-call, and out of town at the time that an on-duty, on-call doctor commits malpractice. Such an understanding of the idea of “non-delegable duty” would have extremely negative policy implications.

Id. The Court of Appeals also rejected “Partin’s argument that a physician’s non-delegable duty, by itself, imposes vicarious liability on an off-call doctor for the malpractice of the on-call doctor serving in his or her place.” Id.

¶ 19. Here, deposition testimony was taken from Dearman, Dr. Christian, Hill, Threadgill, and Hospital Administrator Joseph Bland. The witnesses were questioned about Dr. Christian’s duties as the Hospital’s radiologist and his supervision of the radiology staff. Bland, stated that Dr. Christian was an independent contractor and the medical director of the radiology department. Dr. Christian read and interpreted all the x-ray films for the Hospital. Bland stated that Dr. Christian was not responsible for the supervision and training of the Hospital radiologist staff. In addition, Dr. Christian provided the radiology staff with Hospital policies and procedures; however, the Hospital, not Dr. Christian, made the policies and procedures. Bland stated that Threadgill was the chief technologist and that he reported to Dr. Christian.

¶ 20. Threadgill stated that he was the director of radiology. In addition, Hill was Threadgill’s employee. Threadgill also stated that anytime that Hill was at the Hospital, he supervised Hill. When questioned further about the supervisory capacity in the radiology department, Threadgill described Dr. Christian’s and his duties as follows:

Dr. Christian is the radiologist, and he’s the radiation safety officer. And some of the technical aspects, as far as — I’m the director of radiology, so we have, I guess, joint as far as he’s the doctor that sets up every — as far as the (sic) okays most everything, but it’s a joint effort, I guess, between me and him.

On the day of Dearman’s procedure, Threadgill stated that he was present for the beginning of the procedure. Thread-gill stated that he supervised Hill when the contrast material was injected into Dear-man. Threadgill clarified this answer and stated:

I was in there when he gave the first 50 cc’s, so I guess I would be supervising as far as the first part. He, himself, was monitoring the second 50 cc’s, and the ER physician would have been on standby if there was any kind of allergic reaction, or any kind of complication.

Threadgill also stated “I would be a supervisor anytime that [Hill] was here.” Threadgill also confirmed that the regular Hospital procedure was to contact an emergency room doctor if there was no doctor present in the radiology department.

¶21. Dr. Christian stated that he did not consider himself to be an employee of the Hospital. He said he was paid on a per-exam basis by the Hospital and carried his own medical malpractice insurance. Dr. Christian stated that Hill was not his employee and he assumed that Threadgill was an employee of the Hospital. Dr. Christian also stated that he did not train anyone in the radiology department for procedures such as venipuncture. Dr. Christian said that on the day of Dear-man’s procedure, he did not know she was going to have the procedure; he was not at the Hospital during the procedure; and he did not oversee her diagnostic test. He also stated that either the emergency room doctor or the attending physician would have overseen Dearman’s injection. When Dr. Christian was questioned about the supervision of Hill and Threadgill, the following exchange occurred:

Q. Well, if they’re going to — who’s responsible for [Hill’s and Thread-gill’s] supervision? Inserting an IV for a diagnostic test, who oversees what they do?
A. When I’m there I do.
Q. And what if you’re not there?
A. I don’t know.

(Emphasis added).

¶22. When questioned about who supervised or oversaw the procedure, Hill stated that an emergency room doctor oversaw the procedure. He stated that when the radiologist was not at the hospital, the normal hospital procedure was to call the emergency room doctor prior to injecting the patient with the contrast solution. In his deposition testimony, Hill was questioned about who was in charge of Dearman’s procedure, and the following exchange occurred:

Q. Who was in charge of overseeing the procedure?
A. The emergency room physician.
Q. Who was the emergency room physician at the time?
A. I don’t know who the doctor was that day. I just — I don’t know what his name — who was in the department that day.
Q. Do you know if he was at the hospital during the time the procedure was performed?
A. Yes, ma’am.
Q. He was?
A. The emergency room physician— when the radiologist is not in, we call the emergency room physician, let him know that we have a patient in CT that we’re about to inject an IVP contrast, and he say[s], Okay, go ahead. I’m standing by.
Q. When did you call the ER doctor?
A. Just before we inject the patient.

(Emphasis added).

¶ 23. Dr. Christian stated that he did not know that Dearman was having the diagnostic testing before he arrived at the Hospital. Dr. Christian said he did not oversee Dearman’s diagnostic test and was not at the Hospital when the IV was placed in her arm. Dr. Christian also stated that he was not at the Hospital when the contrast was injected into Dear-man’s arm. According to Dr. Christian, either the attending physician or the emergency room physician would have overseen the injection of the contrast fluid.

¶ 24. Pursuant to Winters, Partin, and Hunnicutt, we find that the trial court did not err by finding that Dr. Christian was not vicariously liable for the actions of the Hospital employees. The evidence clearly showed that the radiology staff was not under Dr. Christian’s direction and control at the time of Dearman’s procedure, pursuant to Winters and Hunnicutt.

¶ 25. In addition, there was ample evidence,. as discussed more fully in Issue II, that Dr. Christian was not aware of Dear-man’s procedure and was not present at the Hospital at the time of Dearman’s procedure. No one testified to Dr. Christian’s presence prior to the administration of the contrast fluid.

¶ 26. The facts of this case support a finding in accord with Partin. Here, Dr. Christian was not aware that Dearman was coming to the Hospital for her scan. At the time of her arrival, Dr. Christian was not present at the Hospital. The Hospital procedure was to have an emergency room or attending physician oversee the contrast injection in the absence of the radiologist. These procedures were followed, and Dr. Christian cannot be held vicariously liable for the actions of the Hospital employees when other Hospital physicians were left in charge of the testing procedures.

II. Negligent Supervision.

¶27. Dearman argues that there is a substantial factual dispute concerning when Dr. Christian arrived at the Hospital on May 31, 2000. Dearman states that the reasonable inference from the facts is that Dr. Christian was present in the Hospital at the time of the CT scan.

¶ 28. Dearman claims that testimony from other individuals and Dr. Christian’s own testimony as to his arrival time at the Hospital were in conflict. She asserts that the issue of whether Dr. Christian was present at the Hospital at the time of the injection of the contrast fluid is important because Dr. Christian testified that when he is present at the Hospital, he is responsible for the supervision of the radiology-technicians and the injections.

¶ 29. Dearman argues that the deposition testimony of Bland indicated that Dr. Christian was at the Hospital at the time of the procedure. Dearman also argues that other testimony placed Dr. Christian in the Hospital at the time of her procedure. More specifically, she contends that Hill’s testimony and her own testimony contradict Dr. Christian’s testimony about his arrival time. In addition, Dearman argues that Dr. Christian stated that he went with her to Dr. Thaggard’s office at approximately 11:00 a.m., after at least two hours of monitoring Dearman’s arm, indicating that he must have arrived prior to 9:00 a.m.

¶ 30. We find that the testimony shows no genuine issue of material fact in dispute. No testimony from any source placed Dr. Christian in the Hospital at the time of Dearman’s CT scan. Dearman, Hill, and Threadgill stated that Dr. Christian came into the x-ray room after the procedure. Dr. Christian stated that he was not present in the Hospital when the procedure was performed. Bland stated that Dr. Christian normally arrived at the Hospital at 8:00 or 9:00 a.m. on Mondays, Wednesdays, and Fridays, yet he did not testify as to Dr. Christian’s arrival time on May 31, 2000.

¶ 31. More specifically, Dearman stated that she arrived at the Hospital at approximately 8:00 a.m. She went to the emergency room and a nurse inserted a Hep-Lock into her ann and Benedryl for her allergies. Dearman then went to the radiology room. Her diagnostic scan indicated that the procedure was performed at approximately 8:54 a.m. The procedure was completed in a few minutes.

¶ 32. Threadgill stated that after Hill administered the contrast, Hill waited for the scan to complete, noticed that no contrast fluid was showing on the screen, and called him. Threadgill came back to the room and discussed the situation, however, Dr. Christian was not at the Hospital when the procedure was started. Threadgill did not know the exact arrival time of Dr. Christian, but stated that he usually arrived at the Hospital between 9:00 and 9:45 a.m. Hill stated that Dr. Christian must have arrived “sometime shortly after 9.” Even Dearman herself stated that the first time that she saw Dr. Dearman was after she was injected with the contrast solution.

¶33. Dr. Christian stated that he arrived at the Hospital at about 9:15 or 9:20 a.m. on May 31, 2000, and that he was unaware of Dearman’s procedure. Upon his arrival, Dr. Christian saw Dearman “sitting on the fluoroscopy table, and Herbert Hill was standing in front of her.” When questioned further, Dr. Christian stated that he arrived at the Hospital between 9:15 and 9:30 a.m. When he saw Dearman sitting up on the table, Dr. Christian stated that he went into the room and saw her swollen forearm. Dr. Christian stated that he was not called into the room, but walked into the room. He stated “I was coming down the hall and had either just turned into my office or was fixing to turn into my office. And I looked to my left, and the door was open into the fluoroscopy room. And that’s when I saw Herb and Ms. Dearman on the other end of the x-ray table.”

1134. As stated previously, Dr. Christian did not know that Dearman was having the procedure, he did not order the tests and, he was not present at the Hospital at the time of the procedure. When questioned further about his knowledge of Dearman’s procedure, Dr. Christian testified as follows:

Q. Dr. Christian, before we took our break I’d asked you if you had known that Ms. Dearman was having the diagnostic testing done before you arrived at the hospital, and you said no. Is that correct?
A. (Nods head affirmatively.)
Q. So you didn’t know she was even going to be there that day?
A. Correct.
Q. You did not oversee the diagnostic testing for her, did you?
A. No.
Q. So you weren’t even at the hospital when the IV was placed in her arm?
A. No.
Q. When the contrast was injected into her arm. Is that correct?
A. I was not there.
Q. Not there. Didn’t know it was even going to be done?
A. No.
Q. Do you know who would have oversaw the injection of the contrast?
A. Either the attending physician or the emergency room physician, one of the two.

¶ 35. According to Hospital emergency room records, it appeared that Dearman had the catheter inserted at 8:30 a.m., and Benedryl was administered at 8:48 a.m. The CT scan from the radiology department indicated that the procedure was performed at 8:50 or 8:54 a.m. According to Dr. Christian, the test takes only three to four minutes to complete.

¶ 36. After examining Dearman’s arm and applying warm soaks for at least two hours, Dearman and Dr. Christian walked to Dr. Thaggard’s office located across the street from the hospital to have him look at Dearman’s arm. When asked what time Dr. Christian walked with Dearman to Dr. Thaggard’s office, Dr. Christian stated “I can give you a best estimate of mine that would be around 11:00. But I’m not a hundred percent sure. We watched her at least two hours.”

¶ 37. Hill stated that after the study was performed he noticed that the contrast material was not where it should have been, in Dearman’s kidneys and bladder. Therefore, he went to get Dr. Christian from his office and asked him to come into the x-ray room. Dearman stated that when the technician stopped giving the injection, she sat up on the table. She did not know how long after the injections that Dr. Christian came to look at her arm. Clearly, neither Hill nor Dearman testified that Dr. Christian was at the Hospital at the time of the procedure. Hill specifically stated that the emergency room physician was overseeing the procedure that day, not Dr. Christian. Furthermore, neither Hill nor Dearman could testify to an exact time that Dr. Christian arrived at the Hospital. We find that, even though there was some conflict among Hill’s, Dearman’s, and Dr. Christian’s testimony, there was no evidence that Dr. Christian was present at the time of Dearman’s procedure. Neither Hill, Dearman, nor Threadgill saw Dr. Christian until sometime after the procedure was completed, after there was some indication of a problem with the test. Further, the fact that Hill stated that the emergency room physician was overseeing the procedure demonstrates that Dr. Christian was not at the Hospital at the time of the procedure.

¶ 38. We find that no additional analysis is needed concerning Dearman’s assertion that Dr. Christian was at the Hospital prior to 9:00 a.m., based upon Dr. Christian’s statement that he applied warm soaks to Dearman’s arm for at least two hours and then walked over to Dr. Thag-gard’s office at about 11:00 a.m. As Dr. Christian stated, the time he went to Dr. Thaggard’s office was his “best estimate” only. In addition, all of the testimony discussed above clearly shows that there was no testimony that placed Dr. Christian in the Hospital prior to Dearman’s procedure.

CONCLUSION

¶ 39. For the foregoing reasons, we find that the Circuit Court of Attala County did not err by granting partial summary judgment to Dr. Christian on the issues of vicarious liability and negligent supervision. Therefore, the judgment of the Circuit Court of Attala County, Mississippi, is affirmed.

¶ 40. AFFIRMED.

SMITH, C.J., WALLER AND DIAZ, P.JJ., CARLSON, DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY.

      . The trial court's order and opinion and partial summary judgment as to separate defendant Ron Christian, M.D., provided that pursuant to Rule 54(b) of the Mississippi Rules of Civil Procedure there is no just reason for delay and expressly directed the entry of a final judgment against the separate defendant, Ron Christian, M.D.

      . Dearman also disputes the trial court's finding that the Hospital staff's administration of the contrast solution was a routine act which Dr. Christian could reasonably assume could be performed in his absence pursuant to Hunnicutt, 986 F.2d at 123. Without addressing this issue in great detail, the testimony revealed that Hill had on-the-job training for his job duties, many years of experience at the Hospital, and had performed hundreds of similar procedures without incident. Notwithstanding Dearman's opposition to the trial court’s finding, the testimony revealed that Hospital procedure was followed for Dear-man's injection. Many witnesses testified that in the absence of a radiologist, the Hospital procedure was to notify the emergency room or attending physician prior to injecting a patient with the contrast material. Here, Hill called the emergency room doctor prior to performing the injection. This physician, therefore, oversaw the procedure.


source: Caselaw Access Project

author: DIAZ, Presiding Justice,

license: Public Domain

text:
    David SCOGGINS v. BAPTIST MEMORIAL HOSPITAL-DESOTO.
    No. 2006-CA-02004-SCT.
    Supreme Court of Mississippi.
    Oct. 25, 2007.
    John Michael Bailey, attorney for appellant.
    Walter Alan Davis, Oxford, attorney for appellee.
    Before DIAZ, P.J., DICKINSON and LAMAR, JJ.
   DIAZ, Presiding Justice,

for the Court.

¶ 1. In this case we are asked to determine when a request for admission is deemed admitted. We find that the requests at issue here were admitted for failure to respond. As a result, no factual or legal issues are in dispute, and summary judgment was properly granted to the defendants.

Facts and Proceedings Below

¶2. David Scoggins is a resident of Memphis, Tennessee, who underwent a co-lonoscopy at Baptist Memorial Hospital-Desoto (“Baptist”), in Southaven. He filed a complaint against Baptist, the chief executive officer of Baptist, “Unknown Surgical Nurse One” and “Unknown Surgical Nurse Two,” alleging that a malfunction in a cauterizing machine caused him a damaged colon, a tear in his abdominal wall, respiratory arrest, an erratic heart rate, and an extended stay in intensive care on a ventilator, along with other injuries. Although the complaint was against a hospital, its director, and nurses for events surrounding a medical procedure, the complaint was grounded solely upon a theory of negligence, not medical negligence.

¶ 3. When Baptist answered the complaint on February 13, 2006, it propounded discovery to Scoggins, including a series of requests for admission. After nearly five months of silence from Scoggins and his counsel, Baptist filed a motion for summary judgment on June 23, 2006. The motion was based upon three reasons: first, that Scoggins did not attach a certificate of expert consultation as required in medical negligence cases pursuant to Mississippi Code Section 11-1-58 (Rev.2002); second, that Scoggins did not have an expert witness to testify regarding medical negligence, as required in our medical negligence cases (See Brooks v. Roberts, 882 So.2d 229, 232 (Miss.2004)); and third, that the requests for admission propounded to Scoggins were never answered, and therefore deemed admitted, “conclusively establishing all issues for trial in favor” of the defendants.

¶ 4. By July 5, 2006, Baptist had received no response to its motion, and noticed it for a hearing for October 3. On July 13, 2006, counsel for Scoggins apparently attempted to answer the interrogatories and requests for production propounded by Baptist, and also filed a “motion to allow late filing of discovery requests.” The motion detailed that both of his parents had been gravely ill with cancer at the time the discovery was propounded, and that his father had passed away on March 1, 2006. Counsel for Scoggins admitted that the requests for admission were not answered in a timely fashion but did not ask the trial court to the withdraw them. The motion clung to the idea that “this is a standard negligence case regarding negligent maintenance of a machine and/or electrical system ... and the majority of the Requests for Admissions are grounded in the medical malpractice statute.”

¶ 5. Counsel for Scoggins did not file a response to the motion for summary judgment until August 31, 2006 — roughly two months after its filing. Counsel for Scog-gins never asked for time from Baptist to file the response late, nor did he ask permission of the trial court. The response' argued that summary judgment was inappropriate, again holding steadfastly that the case was not medical in nature, but rather something to which a layperson could testify; in the alternative, the response alleged res ipsa loquitur.

¶ 6. After a hearing, the trial court determined that the.requests for admission were admitted because there was no legitimate reason for failure to answer, and because counsel for Scoggins never filed a motion to withdraw the requests. Because the requests were admitted, there were no factual or legal issues in dispute, and summary judgment was granted to the defendants.

¶ 7. Aggrieved, Scoggins appeals, assigning seven errors to the trial court. They include that the trial court ignored questions of material fact; that the case was a “standard electrical negligence case,” and not one of medical negligence; that no certificate of consultation with an expert was needed, as the case was not medical negligence in nature; that res ipsa loqui-tur applied; that Scoggins still had pending motions before the trial court; that discovery was still pending; and lastly, that the trial court should not have deemed the requests for admission as admitted. As the entire case turns on whether the requests for admission were admitted, we need not address the other issues.

Discussion

¶ 8. “Matters of discovery are left to the sound discretion of the trial court, and discovery orders will not be disturbed unless there has been an abuse of discretion.” Earwood v. Reeves, 798 So.2d 508, 514 (Miss.2001) (citing Dawkins v. Redd Pest Control Co., 607 So.2d 1232, 1235 (Miss.1992)). Specifically, “[a] certain amount of discretion is vested in the trial judge with respect to whether he or she will take matters as admitted.” Id. (citing In re City of Ridgeland, 494 So.2d 348, 353 (Miss.1986)).

¶ 9. Mississippi Rule of Civil Procedure 36, which largely mirrors its federal counterpart, addresses at length the discovery process of requests for admission. Ideally, these requests narrow the actual legal and factual issues in a case. See Asea, Inc. v. Southern Pac. Transp. Co., 669 F.2d 1242, 1245 (9th. Cir.1981) (“The purpose of [Federal] Rule 36(a) is to expedite trial by establishing certain material facts as true and thus narrowing the range of issues for trial”). This concept is taken very seriously, as “[t]he matter is admitted unless, within thirty days after service of the request ... the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney. ...” Miss. R. Civ. P. 36(a). Accordingly, “[a]ny matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.” Miss. R. Civ. P. 36(b).

¶ 10. In the case at hand, Baptist propounded eight requests for admission. Among them were:

1. Please admit that the plaintiff has no proof to support the allegations of any negligence on the part of the nurses, servants, or employees of the defendant ... at the time of the subject incident.
4. Please admit that no nurse, employee, or agent of [Baptist] violated the applicable standard of care while providing care and treatment to plaintiff during his June 22, 2004 admission to [Baptist].
5. Please admit that no failure to meet the applicable standard of care on the part of any [Baptist] nurse, employee, or agent proximately caused the injuries alleged by the plaintiff in his complaint.
8. Please admit that you have no proof to offer of the alleged negligence of [the Baptist CEO],

Other requests asked the plaintiff to admit that he did not have a qualified expert witness to testify regarding the standard of care or proximate cause, and that an expert had reviewed his case prior to filing.

¶ 11. As noted above, the requests for admission were sent to counsel for Scog-gins on February 13, 2006. Accordingly, to avoid being deemed admitted under Rule 36(b), counsel for Scoggins needed to answer within thirty days. One hundred forty-eight days later, counsel for Scoggins filed the “motion to allow late filing of discovery requests.” The trial court was not persuaded by the arguments of counsel for Scoggins and ruled that the admissions would stand.

¶ 12. It is well-settled that a trial court has the discretion to allow admissions to be withdrawn even after they are admitted. See Earwood,, 798 So.2d at 516 (“Mechanisms exist whereby a trial court may hold that an untimely response does not constitute a deemed admission because the trial court has broad discretion in pretrial matters.”) (emphasis in original). Conversely, “because of the trial court’s broad discretion in such matters, it certainly may also require that parties comply with the rules as stated.” Id.

¶ 13. In this case, the trial court determined that “the requests were deemed admitted by operation of law” after thirty days, which is in accord with Rule 36(a). We cannot say this was an abuse of the trial court’s discretion. As we noted in Eanvood, “[w]e are compelled to acknowledge the adage that rules are promulgated for a purpose, this being precisely an instance in which that principle applies.” Id. As in that ease, counsel for Scoggins, “knew or should have known the severe consequences of failing to timely respond.” Id. at 516.

¶ 14. On appeal, Scoggins argues that his late-filed motion, which consisted of responses to the interrogatories and requests for production, could be construed as a motion to withdraw the admissions pursuant to Rule 36(b). Yet the motion contains no reference to that rule of civil procedure nor any request to have the admissions withdrawn; as the trial court held, it simply “did not seek for the withdrawal of the already deemed admitted admissions.”

¶ 15. The motion sets forth “[t]hat upon information and belief [Baptist] has made no inquiry as to the status of the Discovery by telephone or written communication.” Our rule does not require a party to inquire of another whether requests for admission have been answered. Indeed, the point is that a diligent party will take great pains to ensure the requests have either been admitted or denied, as they are automatically deemed admitted after thirty days. The trial court did not abuse its discretion in refusing to construe this motion as one to withdraw the admissions. As in the case of Martin v. Simmons, “[t]he problems encountered by the [plaintiff] in this case could easily have been eliminated if a motion to withdraw or amend the answers had been filed pursuant to Rule 36(b) and if there were justifiable excuse.” 571 So.2d 254, 257 (Miss.1990); see also Sunbelt Royalty, Inc. v. Big-G Drilling Co., Inc., 592 So.2d 1011 (Miss.1992) (requests for admission deemed admitted where defendant failed to respond for nearly nine months).

¶ 16. Scoggins further argues that the case should not be dismissed on the basis of a discovery violation. To that end, he cites Pierce v. Heritage Properties, Inc., where we allowed a case to be dismissed after it became clear that a party made willful misstatements during discovery. 688 So.2d 1385, 1389 (Miss.1997). Scog-gins urges that we apply the four-factor analysis used in Pierce to the case at hand. However, this case was not dismissed because of a discovery violation. The trial court’s ruling had nothing to do with discovery violations. Instead, the summary judgment ruling was based wholly upon the admissions of Scoggins, which in turn eliminated his ability to mount any factual or legal case against Baptist.

¶ 17. For the foregoing reasons, the trial court did not abuse its discretion in finding the requests for admission were admitted.

Conclusion

¶ 18. While litigation can be time-intensive and time-consuming, attorneys must be precautious about the drastic consequences of failing to timely answer requests for admission. In the case at hand, the trial court did not abuse its discretion in deeming the requests admitted, and ultimately rendering summary judgment in favor of the defendants. The trial court’s judgment is hereby affirmed.

¶ 19. AFFIRMED.

SMITH, C.J., WALLER, P.J., EASLEY, CARLSON, GRAVES, DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR.

      . We do not address in this case the fact pattern which did not occur: that is, if the troubles suffered by counsel for Scoggins, coupled with a motion to withdraw, would have sufficed under the rule. The purpose of our appellate review is not to settle questions in the abstract or to issue advisory opinions. See Gartrell v. Gartrell, 936 So.2d 915, 916 (Miss.2006).


author: CHANDLER, J.,

text:
    Robert RIGGS a/k/a Robert F. Riggs, Appellant, v. STATE of Mississippi, Appellee.
    No. 2006-CA-00482-COA.
    Court of Appeals of Mississippi.
    June 19, 2007.
    Rehearing Denied Oct. 30, 2007.

      Robert Riggs (Pro Se), Roy Kenionne Smith, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   CHANDLER, J.,

for the Court.

¶ 1. Robert Franklin Riggs, pro se, appeals from the summary denial of his second post-conviction relief (PCR) motion filed in the Circuit Court of DeSoto County. Riggs claims that the trial court erred because: (1) Riggs pled guilty to simple assault and not aggravated assault, (2) the indictment failed to allege sufficient facts to establish aggravated assault, and (3) the trial judge erred in advising Riggs he could not appeal the trial court’s actions. The lower court found that Riggs’s second PCR was procedurally barred as a successive writ and, notwithstanding the procedural bar, the motion also failed on the merits. The court dismissed the motion pursuant to section 99-39-11(2) of the Mississippi Code Annotated (Rev.2006).

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Riggs was indicted on charges of two counts of aggravated assault and one count of kidnapping due to a domestic dispute with his live-in girlfriend on November 27, 2001, in DeSoto County, Mississippi. On January 31, 2003, Riggs entered an open plea of guilt to one count of aggravated assault. In return for his plea, the State agreed to remand one of the counts of aggravated assault as well as the kidnapping charge to the file. After conducting a plea qualification hearing, the court sentenced Riggs to a term of twenty years in the custody of the Mississippi Department of Corrections.

¶ 4. On January 16, 2004, Riggs filed his first PCR motion, alleging that his trial counsel was ineffective and that his guilty plea had not been freely and voluntarily made. The circuit court denied the motion and Riggs appealed. This Court affirmed the lower court’s decision. Riggs v. State, 912 So.2d 162, 165(¶ 10) (Miss.Ct.App.2005).

¶ 5. On January 26, 2006, Riggs filed a second PCR motion, which the circuit court also denied. The court found that Riggs’s motion was an impermissible successive attempt at post-conviction relief and that the motion also failed on the merits.

STANDARD OF REVIEW

¶ 6. When reviewing the lower court’s denial of a motion for post-conviction relief, this Court will not disturb the lower court’s fact-findings unless they are found to be clearly erroneous. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999). When questions of law are raised, our standard of review is de novo. Id.

LAW AND ANALYSIS

¶ 7. Riggs appeals the denial of his second PCR motion entitled, “Second and Successive Motion For Post Conviction Relief To Vacate And Set Aside Conviction And Sentence.” Mississippi Code Annotated Section 99-39-23(6) (Rev.2006) states in pertinent part that, “any order dismissing the prisoner’s motion or otherwise denying relief under this chapter is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this chapter.” Exceptions may be made if the prisoner demonstrates that there has been either an intervening decision of the United States Supreme Court or the Mississippi Supreme Court which would have “actually adversely affected the outcome of his conviction or sentence,” or that new evidence has surfaced which, had it been introduced at trial, would have caused a different result in the conviction or sentence. Miss. Code Ann. § 99-39-23(6). The evidence offered must not have been reasonably discoverable at the trial. Id. Riggs has cited no applicable intervening cases or newly discovered evidence that would have excepted his claim from the procedural bar on successive post-conviction relief motions. Clark v. State, 898 So.2d 687, 689(¶ 5) (Miss.Ct.App.2004). Therefore, we find that this second PCR motion is procedurally barred as a successive writ and we affirm the lower court’s denial of the PCR motion.

¶ 8. Notwithstanding the procedural bar, we will briefly address the merits.

I. WHETHER THE TRIAL COURT ERRED IN ACCEPTING RIGGS’S GUILTY PLEA FOR AGGRAVATED ASSAULT.

¶ 9. Riggs claims that he pled guilty to simple assault and by accepting his plea as that for aggravated rather than simple assault, the trial court committed reversible error. He relies on a portion of the hearing transcript to assert this argument:

THE COURT: Having advised you of all of this, I ask how do you plead?
RIGGS: Guilty.
THE COURT: And why are you pleading guilty?
RIGGS: I just want it over with.
THE COURT: Well, I mean, are you guilty?
RIGGS: To some extent.
BY MR. SPRIGGS (Riggs’s attorney): Are you guilty of assault?
RIGGS: I was guilty of assault, yes, sir.
THE COURT:(Continuing). Well, why do you say to some extent?
RIGGS: I just—
THE COURT: Do you have questions about it?
RIGGS: No, sir.
THE COURT: Are you sure?
RIGGS: Yes, sir.

¶ 10. Based on this exchange, Riggs claims that he only pled guilty to simple assault and not aggravated assault. However, a plain reading of the transcript as a whole and the context surrounding the hearing refute Riggs’s assertion. Riggs was indicted on two counts of aggravated assault and one count of kidnapping. In return for a guilty plea, the State agreed to drop one of the aggravated assault charges and the charge for kidnapping. Therefore, Riggs filed an open plea of guilt in which he stated that he was guilty of one count of aggravated assault. At the hearing to determine the voluntariness of his plea, the trial judge began by asking Riggs if he understood that he was charged with aggravated assault. Riggs replied in the affirmative. Only later in the hearing did the above exchange occur in which Riggs stated that he was guilty of “assault.”

¶ 11. Upon reviewing the petition to enter a guilty plea, the text of the hearing and the context in which the above comments were made, we find that Riggs did, in fact, knowingly and voluntarily plead guilty to the charge of aggravated assault. Therefore, this issue is without merit.

II. WHETHER THE INDICTMENT FAILED TO ALLEGE SUFFICIENT FACTS TO ESTABLISH THE ELEMENTS OF AGGRAVATED ASSAULT.

¶ 12. Riggs next argues that the indictment charging him with aggravated assault is faulty because it did not include the specific language required under section 97-3-7(2)(b) of the Mississippi Code Annotated (Rev.2006). However, Riggs conveniently excludes the portion of the language which he claims to be in error. Upon review of the indictment, we find the text sufficiently tracks the language of the statute:

Robert Franklin Riggs ... did willfully, unlawfully and feloniously, purposely or knowingly cause bodily injury to Carol Carpenter with a deadly weapon or other means likely to produce death or serious bodily harm, to-wit: his fists, by striking Carol Carpenter repeatedly with his fists and choking her, in direct violation of Section 97 — 3—7(2)(b)[.]

(emphasis added).

¶ 13. Riggs further argues that whether his fists constitute a deadly weapon was a matter for a jury to decide. However, Riggs waived his right to have this issue determined by a jury when he entered his guilty plea. He is also erroneous in his interpretation of the elements required for aggravated assault. Riggs asserts that the State must prove that the victim suffered “serious” bodily injury. However, the proper inquiry is whether the “bodily injury” was caused with “other means likely to produce serious harm.” Jackson v. State, 594 So.2d 20, 24 (Miss.1992).

¶ 14. Because the language of the indictment is in accordance with the applicable statute and sufficient facts supporting such a charge are also set forth in the indictment, we find this issue to be without merit.

III. WHETHER THE TRIAL COURT ERRED BY STATING THAT RIGGS COULD NOT APPEAL THE TRIAL COURT’S ACTIONS.

¶ 15. Riggs’s final assertion is that the trial court improperly instructed that a direct appeal of his sentence would be unavailable to him pursuant to a guilty plea. Upon a thorough review of the plea hearing transcript, we find that Riggs’s claim is not supported. During the plea qualification hearing, the trial judge stated, “[s]ome lawyers apparently tell their clients they can appeal a plea. There is no appeal on a plea.” The lower court did not tell Riggs that he could not appeal his sentence. The court had not even begun the sentencing phase at the time of this exchange. Rather, the court was merely instructing Riggs of the rights he would waive pursuant to a guilty plea. Further, Riggs did file a notice of appeal with the Mississippi Supreme Court contesting his conviction and sentence. The appeal was dismissed because Riggs did not file an appellate brief. Therefore, this issue is also without merit. Accordingly, we affirm the lower court’s denial of Riggs’s second PCR motion.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Per section 97-3-7(2)(b), “A person is guilty of aggravated assault if he ... (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm....”


text:
    H. Ted CAIN d/b/a Quest Rehab, Appellant/Cross-Appellee, v. Brian CAIN and Lakeview Nursing Center, Appellees/Cross-Appellants.
    No. 2005-CA-00251-COA.
    Court of Appeals of Mississippi.
    June 26, 2007.
    Rehearing Denied Oct. 30, 2007.

      Darren E. Gray, Wiggins, John R. Reeves, attorneys for appellant.
    Johnny L. Nelms, J. Henry Ros, Gulf-port, attorneys for appellees.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. H. Ted Cain d/b/a Quest Rehab (Quest) sued Brian Cain and Lakeview Nursing Center (Lakeview) for breach of a contract requiring Quest to provide rehabilitation therapy services to Lakeview. After a trial in the Circuit Court of Harrison County, the jury awarded Quest compensatory damages in the amounts of $86,752 for services rendered and $62,500 for lost profits. The trial court ordered Lakeview to pay post-judgment interest.

¶ 2. Quest appeals, arguing that the trial court erred by granting a directed verdict on its claim that Lakeview breached a covenant not to hire Quest’s employees during the contract term or for a period of two years after termination of the contract. Quest further argues that the trial court should have awarded pre-judgment interest and attorneys’ fees and allowed the issue of punitive damages to go to the jury. Lakeview has cross-appealed, arguing that the trial court erred by allowing Quest’s evidence of lost profits to go to the jury.

¶ 3. We affirm in part and reverse and remand in part for the trial court to calculate and award prejudgment interest.

FACTS

¶ 4. Ted Cain and Brian Cain are brothers. Ted Cain owned Quest Rehab, a business providing rehabilitation therapy services. Brian Cain was the president and sole stockholder of Lakeview Nursing Center, a nursing home for the elderly. Quest and Lakeview entered into the contract at issue on March 1, 1998. The contract, titled “Therapy Services Agreement,” stated that Quest would furnish rehabilitation services to Lakeview consisting of speech-language pathology, physical therapy, and/or occupational therapy services. The contract made Quest the exclusive agent to furnish these rehabilitative therapies to Lakeview. The contract was signed by Ted Cain on behalf of Quest and Brian Cain on behalf of Lakeview.

¶ 5. The term of the contract was for one year from March 1, 1998, ■ and was automatically renewable for successive one-year periods unless either party, forty-five days prior to the end of the term, gave notice of its intent not to renew the contract. During the initial one-year term, the contract could be terminated “for just cause by giving the other party (the ‘defaulting party1) written notice of termination thirty (30) days prior to the effective date of termination set forth in said notice.” After the initial term, either party could terminate the contract with or without cause by giving the other party written notice at least sixty days prior to the effective date of termination.

¶ 6. The contract stated that Lakeview was to pay Quest “on a ‘fee-for-service’ basis for the services identified in Attachment ‘A.’ ... at the rate(s) indicated and within the time frame identified in Attachment ‘A.’ ” The contract provided for Quest to bill Lakeview monthly with invoices reflecting services rendered within the previous month and for Lakeview to remit payment within thirty days from the invoice date. The contract further stated, “Contractor’s right to payment for services shall not be contingent upon the ability of [Lakeview] to collect amounts billed to any applicable payment program or any individual patient.” Attachment A to the contract provided that Lakeview would pay Quest twenty-eight dollars per unit for speech pathology, twenty-eight dollars per unit for occupational therapy, and would pay under the salary equivalency method for physical therapy. The physical therapy rate included a reduced rate based on the salary equivalency method for licensed physical therapy assistants and aides, and travel rates for ■ physical therapists and licensed physical therapy assistants equal to fifty percent of their rates as calculated under the salary equivalency method. It was established at trial that a “unit” comprised fifteen minutes of billable time. The contract also stated that “the services to be furnished and identified in Attachment ‘A’ may be modified only by written agreement of the parties.”

¶ 7. Pursuant to the contract, Quest began providing therapy services to Lake-view on March 1, 1998. Quest billed Lake-view monthly with invoices reflecting the number of units of the different types of therapy services provided, and in April 1998 Lakeview paid Quest’s first bill for services rendered in March 1998. Brian Cain testified that Lakeview used funds it was reimbursed by Medicare to pay Quest’s bills. Brian testified that, in April 1998, changes went into effect in the Medicare reimbursement rates for speech therapy, occupational therapy and physical therapy. These changes lowered Lake-view’s Medicare reimbursement rates for speech and occupational therapy and raised its reimbursement rates for physical therapy. Brian testified that, under the new rates, Lakeview’s Medicare reimbursement for speech and occupational therapy would be insufficient to pay Quest the amounts due under the contract.

¶ 8. At the trial, Lakeview sought to show that the contract had been subsequently orally modified to incorporate the new Medicare reimbursement rates. Brian. testified that, sometime after the Medicare rate changes went into effect, he spoke with either Ted or with Quest’s administrator, Julia Threadgill, about adjusting the amounts payable under the contract to reflect the new rates. Brian related that either Ted or Threadgill orally agreed that Quest would charge Lake-view under the new reimbursement rates. Two invoices from Quest to Lakeview from April 1998 and May 1998 were admitted into evidence reflecting the new reimbursement rates. Brian testified that, in June 1998, he and Ted had an argument subsequent to which Lakeview received revised bills from Quest for April and May 1998 reflecting the higher contract rates. Quest’s invoices for June, July, and August also reflected the contract rates. Tommy Kuluz, Quest’s chief financial officer, testified that the initial April and May invoices reflecting the lower rates were sent in error and that the revised bills were sent as soon as the error was discovered. Ted Cain testified that he never agreed to modify the contract terms to charge Lakeview according to the new Medicare reimbursement rates.

¶ 9. On August 21, 1998, Lakeview sent Quest a letter terminating the contract effective September 20, 1998, asserting that Quest had failed to abide by an agreement to adjust its billing rates to reflect the new Medicare reimbursement rates. By letter faxed to Quest, Lakeview terminated the contract effective at 12:00 p.m. on August 26, 1998. The next day, Innovative Therapies, another rehabilitation therapy company, began performing rehabilitation therapy services at Lakeview. Brian Cain had a fifty-percent ownership interest in Innovative Therapies.

¶ 10. On November 13, 1998, Ted Cain d/b/a Quest sued Brian Cain and Lakeview for breach of contract, requesting $287,864.90 for services rendered through August 26, 1998 and $126,688.14 in lost profits, plus punitive damages, interest, costs, and attorney’s fees. On August 31, 1999, Lakeview tendered a check to Quest in the amount of $188,882.67, the amount it asserted was due if calculated under the new reimbursement rates. Quest accepted the check in partial payment of the amount due under the contract rates. The question before the jury was whether the contract had been modified to incorporate the new rates as asserted by Lakeview such that no further funds were due for services rendered. The jury found that Lakeview had breached the contract and awarded Quest $86,752 for services rendered and $62,500 for lost profits. Both Quest and Lakeview appeal.

I. THE COURT ERRED IN GRANTING A DIRECTED VERDICT ON THE ISSUE OF LAKEVIEW’S BREACH OF CONTRACT CONCERNING THE UTILIZATION OF EMPLOYEES OF H. TED CAIN D/B/A QUEST REHAB.

¶ 11. After both sides rested, the trial court directed a verdict for Lake-view on the issue of Lakeview’s breach of a covenant not to hire Quest’s employees during the contract or for two years after the termination of the contract. Quest appeals. The trial court’s grant of a directed verdict is a question of law which is subject to de novo review. Canadian National/Ill. Cent. R. Co. v. Hall, 953 So.2d 1084, 1090(¶ 9) (Miss.2007). On review of a directed verdict, we consider the evidence in the light most favorable to the non-movant, giving the non-movant the benefit of all favorable inferences that may reasonably be drawn from the evidence. Id. “[A] trial court should submit an issue to the jury only if the evidence creates a question of fact concerning which reasonable jurors could disagree.” Vu v. Clayton, 765 So.2d 1253, 1254(¶ 5) (Miss.2000) (quoting Vines v. Windham, 606 So.2d 128, 131 (Miss.1992)). To create a jury question, the evidence in opposition of the motion should be “of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment could differ as to the verdict.” Murray Env. Corp. v. Atlas Env. Corp., 851 So.2d 426, 429(¶ 7) (Miss.Ct.App.2003) (quoting Collins v. Ringwald, 502 So.2d 677, 678 (Miss.1987)).

¶ 12. The covenant not to hire, under the heading “Personnel Covenant,” stated:

Facility recognizes that Contractor’s employees are valuable assets of Contractor and agrees that during the term of this Agreement and for a period of two (2) years following the termination of this Agreement it shall not hire, entice to hire, or induce to be hired by any means whatsoever, either directly or indirectly, or enter into any contract or agreement to perform any rehabilitation services utilizing any personnel employed by Contractor.

This clause was a restrictive covenant placing restraints on Lakeview’s ability to hire employees. See Landry v. Moody Grishman Agency, Inc., 254 Miss. 363, 374, 181 So.2d 134, 139 (1965). The covenant not to hire also limited the employment opportunities of those employees covered by the contract language. Thus, in this situation two employers have attempted to contractually eliminate the employment opportunities of third persons. This case presents the first occasion that a Mississippi court has considered the propriety of a covenant not to hire.

¶ 13. Regarding a covenant not to compete, our supreme court has stated that restrictive covenants are in restraint of trade and individual freedom and are not favorites of the law, but will be enforced when reasonable. Frierson v. Sheppard Bldg. Supply Co., 247 Miss. 157, 172, 154 So.2d 151, 156 (1963). The power of the court to enforce a restrictive covenant is invoked by the contract and the legal necessity that contracts be honored. Id. “[I]t is the contract the parties themselves made that measures the restriction, both as to scope and time.” Id. However, only when a covenant in restraint of trade is reasonable will it be upheld by this Court. Empiregas, Inc. of Kosciusko v. Bain, 599 So.2d 971, 975 (Miss.1992). The employer bears the burden to prove that the restriction is reasonable in light of the economic interest sought to be protected. Thames v. Davis & Goulet, Ins., Inc., 420 So.2d 1041, 1043 (Miss.1982). Covenants in restraint of trade are to be strictly interpreted. Id. (quoting Arthur Murray Dance Studios of Cleveland v. Witter, 105 N.E.2d 685, 693 (1952)). “The validity and therefore, the enforceability of a non-competition provision is largely predicated upon the reasonableness and specificity of its terms, primarily, the duration of the restriction and its geographic scope.” Empiregas, 599 So.2d at 975. Non-competition agreements are valid only “within such territory and during such time as may be reasonably necessary for the protection of the employer or principal, without imposing undue hardship on the employee or agent.” Id. (quoting Wilson v. Gamble, 180 Miss. 499, 510-11, 177 So. 363, 365 (1937)). To determine the validity of a covenant in restraint of trade, we look to the respective rights of the employer, the employee, and the public. Empiregas, 599 So.2d at 975.

¶ 14. The following evidence was presented at the trial concerning Lakeview’s breach of the covenant. Ted Cain testified that six Quest employees including licensed physical therapist aides Anthony Bosarge and Scott Keller went to work at Lakeview during the contract term or two years thereafter. He stated that rehabilitative therapists were in short supply in the labor market and thus were valuable to Quest. Ted stated he learned Brian Cain had hired Quest’s employees, that he told Brian the hiring breached the contract, and that Brian responded that he was going to hire them anyway. Brian Cain testified that the Quest employees were not hired by Lakeview but by Innovative Therapies, a company Brian owned in partnership with Larry Jones. Brian opined at trial that the hiring did not breach the contract because Innovative, not Lakeview, had hired the Quest employees. Brian testified that he was not involved in the hiring and firing of Innovative employees.

¶ 15. On August 27, 1998, the' day after Lakeview terminated the contract, Lake-view contracted with Innovative to supply the rehabilitation therapy services formerly supplied by Quest. Pursuant to this contract, the Quest employees hired by Innovative resumed work at Lakeview. Two of the former Quest employees hired by Innovative testified on behalf of Lake-view. Bosarge testified that Quest fired him in August 1998 and he contacted Jones about working for Innovative. Innovative hired Bosarge. Innovative initially assigned Bosarge to another nursing home and several months later, to Lakeview. Keller testified that he left Quest in June 1998 and contacted Jones about working for Innovative. Innovative hired Keller, assigning him to several facilities. Innovative sent Keller to Lakeview in September or October 1998. Both Bosarge and Keller stated that they never talked to Brian Cain about employment with Innovative prior to being hired by Innovative.

¶ 16. Lakeview argues that there could be no breach of contract because Innovative, not Lakeview, hired the Quest employees. Quest contends that the contract covers the hiring of Bosarge and Keller and that Innovative was acting as Lake-view’s agent when it hired the Quest employees. We address Quest’s agency argument. As the administrator and sole stockholder of Lakeview and a fifty-percent partner in Innovative, Brian Cain was an agent for both Lakeview and Innovative. There was testimony from Ted Cain that he visited Brian at his Lakeview office and discussed the hiring of Quest employees. Ted stated that he told Brian his hiring of Quest employees was a breach of the contract and Brian responded that he was going to hire the Quest employees anyway. Brian stated that this argument occurred in June 1998, but denied that he was involved in any hiring decisions at Innovative. Ted’s testimony presents a fact question as to whether or not Brian, on behalf of Lakeview, used Innovative to hire Quest employees to work at Lake-view.

¶ 17. The contract stated that, for a specified period of time, Lakeview was not to hire, entice to hire, or induce to hire Quest’s employees “by any means whatsoever, either directly or indirectly.” Certainly, there was no evidence that Lake-view directly hired Quest employees. The question is whether the evidence was sufficient to enable a jury to find that Lake-view indirectly hired the employees. From the evidence presented, a jury reasonably could find that Brian directed Innovative’s hiring of Quest employees, did so on behalf of Lakeview, and that his conduct breached the covenant barring Lakeview from indirectly or by any means whatsoever hiring, inducing to hire, or enticing to hire Quest’s employees. However, our inquiry does not end here.

¶ 18. We must address Lake-view’s argument that the covenant was ambiguous as to which Quest employees were subject to the restriction. In determining the meaning of contract terms, this Court reads the contract as a whole, gives contract terms their plain meaning, and construes any ambiguities against the drafter. Pursue Energy Corp. v. Perkins, 558 So.2d 349, 352-53 (Miss.1990). This Court must give effect to all contract terms if that can reasonably be done. Id. But if contract language is susceptible of two or more reasonable interpretations, then ambiguity is present. Miss. Farm Bureau Cas. Ins. v. Britt, 826 So.2d 1261, 1265(¶ 14) (Miss.2002). Lakeview points out that the covenant only stated that Quest’s “employees are valuable assets” and, later, referred to the covered employees as “personnel employed by [Quest].” These terms were ambiguous because it is impossible to discern if they embraced all past, present, or future Quest employees, or only persons who were employed by Quest at the inception of the contract, or persons employed by Quest any time during the term of the contract. It is impossible to determine, for example, whether Bosarge and Keller were embraced by the contract language because they were no longer Quest employees at the time they were hired by Innovative. Moreover, in the absence of specificity as to which individuals were limited by the covenant not to hire, the covenant operates as an unreasonable restraint on trade. Empiregas, 599 So.2d at 975. As we have found the contract to be ambiguous, we leave for another day the question of whether a more specific covenant not to hire would be valid and enforceable. We affirm the trial court’s grant of a directed verdict as to this issue.

II. THE COURT ERRED IN DENYING H. TED CAIN D/B/A QUEST REHAB PREJUDGMENT INTEREST.

¶ 19. The trial court denied Quest’s request for prejudgment interest on the $86,752 which the jury awarded for services rendered. Quest did not seek prejudgment interest on the amount awarded for lost profits. In Mississippi, the trial judge possesses the authority to award prejudgment interest to the prevailing party in a breach of contract suit if prejudgment interest was requested in the complaint. Warwick v. Matheney, 603 So.2d 330, 342 (Miss.1992). The decision to award prejudgment interest rests within the trial judge’s discretion. Id. In general, if prejudgment interest is awarded, it dates from the breach of the contract. Estate of Baxter v. Shaw Assoc., Inc., 797 So.2d 396, 403(¶ 30) (Miss.Ct.App.2001). The court may award prejudgment interest when damages are liquidated when the claim is originally made or when there has been a bad faith denial of payment. Preferred Risk Mut. Ins. Co. v. Johnson, 730 So.2d 574, 577(¶ 12) (Miss.1998). The purpose of awarding prejudgment interest is not to punish the wrongdoer but to compensate the innocent party for the detention of the overdue funds. Sunburst Bank v. Keith, 648 So.2d 1147, 1153 (Miss.1995).

¶ 20. Quest requested prejudgment interest in its complaint. The trial court denied the request upon a finding that the damages for services rendered were disputed by Lakeview’s argument that the contract had been modified and that nothing was owed. Quest argues that the trial court abused its discretion by denying prejudgment interest because the $86,752 in damages for services rendered were liquidated and payable from the date of the breach. Lakeview contends that the damages were not liquidated. Lakeview points out that at trial Quest sought $94,827.64 for services rendered, over eight thousand dollars more than the jury awarded. Lakeview also argues that the amount due for services rendered was placed in dispute by the testimony of Brian Cain and others that Quest had provided unnecessary therapy services to Lakeview and had thereby overbilled Lakeview. No evidence of specific instances of overbilling was admitted.

¶ 21. In determining whether a claim is liquidated, “interest has been denied where ‘there is a bona fide dispute as to the amount of damages as well as the responsibility for the liability therefore.’ ” Thompson Mach. Commerce Corp. v. Wallace, 687 So.2d 149, 152 (Miss.1997). Liquidated damages are those which are set or determined by the contract when the breach occurred; unliquidated damages are those which have been “established by a verdict or award but cannot be determined by a fixed formula, so they are left to the discretion of the judge or jury.” Moeller v. Am. Guarantee and Liability Ins. Co., 812 So.2d 953, 959-60(¶ 18) (Miss.2002) (quoting Black’s Law Dictionary 397 (7th ed.1999)). In asserting that the $86,752 was a liquidated amount, Quest argues that $86,752 was the amount reflected by its bills for April 1998 through August 1998, less the $188,882.67 already paid by Lakeview. Quest points out that Brian Cain admitted that Quest’s bills correctly reflected the contract rates and that if no modification of the contract was found to have occurred, the amount billed was the amount due.

¶ 22. We agree with Quest’s argument that the $86,752 was a liquidated amount. At the trial, Quest indeed requested $94,827.64 in damages for services rendered. An itemized “Statement of Account,” dated September 30, 1998, reflects that the $94,827.64 comprised the sum of the unpaid amounts reflected by the April 1998 through August 1998 invoices plus finance charges. In awarding $86,752, the jury awarded the billed amount and subtracted the finance charges. We must determine if this calculation rendered the damages unliquidated. We conclude that in this situation it did not. Brian Cain admitted that the outstanding amount shown by the bills reflected the contract rates. Lakeview never disputed the finance charges. Its evidence of overbilling was scant and directed at proving that Quest failed to perform its obligations under the contract, justifying Lakeview’s termination. Its primary argument was that the contract had been modified to the lower rates and nothing further was due. Thus, the amount due as of the date of the breach was never placed in dispute. The jury awarded the outstanding amount reflected by the bills which Lakeview admitted was due under the contract. The contract did not provide for finance charges and the propriety of finance chax-ges under the contract was not placed in dispute by the parties. The $86,752 was the amount undisputedly owed under the contract rates. Therefore, the damages for services rendered were liquidated.

¶ 23. The trial court denied prejudgment interest because it found that damages were placed in dispute by Lakeview’s argument that the contract had been modified. This ruling was erroneous and an abuse of discretion. Interest may be awarded when the amount of damages is certain, even if the fact of liability for those damages is disputed. Estate of Baxter, 797 So.2d at 403(¶ 32). That was precisely the situation in the instant case. The parties disputed whether the contract had been modified and thus whether any damages were owed at all. There was no dispute as to the amount of damages at stake. As we have held, the amount of damages at stake was liquidated and fixed as of the date of the breach of contract. Therefore, the trial court erred by denying prejudgment interest. We reverse and remand for the trial court to calculate and award prejudgment interest to Quest.

III. THE COURT ERRED IN DENYING H. TED CAIN D/B/A QUEST REHAB ATTORNEY’S FEES AS PROVIDED FOR BY CONTRACT AND PURSUANT TO RULE 11(B) OF THE MISSISSIPPI RULES OF CIVIL PROCEDURE.

¶ 24. Quest requested attorney’s fees, contending that the contract provided for them or that it was entitled to attorney’s fees pursuant to Mississippi Rule of Civil Procedure 11(b) and the Litigation Accountability Act. The trial court declined to award attorney’s fees. Quest renews both its arguments on attorney’s fees on appeal.

A. The contract language

¶25. Attorney’s fees are recoverable if allowed in a contract. Jackson Cty. Sch. Bd. v. Osborn, 605 So.2d 731, 735 (Miss.1992). Absent statutory or contractual provisions, attorney’s fees are not recoverable unless punitive damages are also proper. Miss. Power Co. v. Hanson, 905 So.2d 547, 552(¶ 23) (Miss.2005). Quest argues that the parties contractually bargained for the breaching party to pay attorney’s fees in the event of a contract breach with the following language:

[Lakeview] and [Quest] agree to indemnify, hold harmless and defend each other, from and against all losses, claims, suits, damages, actions, causes of action, proceedings, demands, assessments, settlements, judgements, costs, expenses, or other liabilities of any kind or nature imposed on or asserted against the indemnified party as a result of, arising out of or relating to the indemnifying party’s negligent or willful acts or omissions in the performance of services under this Agreement.

This language appeared under the heading “Insurance and Indemnification.”

¶ 26. The trial court ruled that the indemnity provision clearly did not encompass attorney’s fees. Lakeview argues that the language functioned solely as an indemnity agreement pursuant to which the parties would indemnify each other against any actions by independent third parties. Lakeview argues that the language did not authorize an award of attorney’s fees for disputes between Lakeview and Quest. Quest avers that the language tracked that in Turner v. Terry, 799 So.2d 25 (Miss.2001). In Turner, the supreme court found the following language in a pledge and security agreement provided for attorney’s fees:

Section 10. Indemnity and Expenses
(A) The Pledgor agrees to indemnify Turner from and against any and all claim, losses and liabilities growing out of or resulting from this Agreement (including, without limitation, enforcement of this Agreement), except claims, losses or liabilities resulting solely and directly from Turner’s gross negligence or willful misconduct.
(B) The Pledgor will upon demand pay to Turner the amount of any and all cost and expenses, including the ... disbursements of Turner’s counsel and of any experts and agents, which Turner may incur in connection with (i) the administration of the Agreement; (ii) the custody preservation, use or operation of, or the sale of, or enforcement of any of the rights of Turner hereunder; (iv) the failure by the Pledgor to perform any of the provisions hereof, except expenses resulting solely and directly from Turner’s gross negligence or willful misconduct.

Id. at 38 (¶¶ 44, 46). Quest contends that the indemnity provision’s language is sufficiently similar to that in Turner to enable this Court to find that it encompasses attorney’s fees.

¶ 27. When determining the meaning of contract language, we interpret the contract objectively and determine the parties’ intent from “ ‘the meaning of the language used, not the ascertainment of some possible but unexpressed intent of the parties.’ ” Cherry v. Anthony, Gibbs, Sage, 501 So.2d 416, 419 (Miss.1987) (quoting Hunt v. Triplex Safety Glass Co., 60 F.2d 92, 94 (6th Cir.1932)). When the contract is unambiguous, its terms are to be given their plain meaning. Ferrara v. Walters, 919 So.2d 876, 882(¶ 13) (Miss.2005). Ambiguous contracts are to be construed against the drafter. Rotenberry v. Hooker, 864 So.2d 266, 270(¶ 14) (Miss.2003). Contrary to Quest’s argument, it was substantially clearer in Turner than in this case that the contract provision entitled the non-breaching party to attorney’s fees. In Turner, the pledgor promised “upon demand pay to Turner the amount of any and all cost and expenses, including the ... disbursements of Turner’s counsel ..., which Turner may incur in connection with ... enforcement of any of the rights of Turner hereunder.” The contract plainly provided for attorney’s fees.

¶28. After carefully reviewing the contract language in this case, we find that it cannot support the conclusion that the parties agreed Lakeview would pay Quest’s attorney’s fees if Lakeview breached the contract. Quest asserts that attorney’s fees were permitted by the indemnity provision in which Lakeview promised to “indemnify ... [Quest] from and against all losses, ... costs, expenses or other liabilities of any kind or nature imposed on ... [Quest] as a result of, arising out of, or relating to [Lakeview’s] ... willful acts or omissions in the performance of services under [the contract].” Quest asserts that Lakeview’s breach of contract by failing to pay for services rendered constituted “willful acts or omissions in the performance of services under the contract” and that the attorney’s fees were costs, expenses, or liabilities imposed, on Quest as the result of Lakeview’s breach of contract. It may be said that the attorney’s fees were costs, expenses, or liabilities imposed on Quest as a result of Lakeview’s breach of contract. But the contract provides for each party to indemnify the other for losses resulting from the indemnifying party’s “willful acts or omissions in the performance of services under [the contract].” The language created a coequal obligation. We search for the meaning of “performance of services under [the contract].” The contract provided for Quest to perform services for Lakeview in the form of patient therapy. Lakeview was not performing services for Quest but it was performing services for its patients through Quest. Lakeview’s duty under the contract was to timely pay Quest for the patient services rendered and that was the duty Lakeview breached. Because those were the parties’ corresponding obligations, and Lakeview had no contractual duty to provide services to Quest, the plain language of the indemnity agreement appears to be limited to the parties’ performance of patient services. It is only with that meaning that indemnity for “performance of services under the contract” makes any sense as applied coequally to both parties. Lakeview’s contractual obligation to pay Quest was not a performance of services under the contract. Therefore, the indemnity provision did not encompass attorney’s fees for Lakeview’s breach of the contract by failing to pay Quest.

B. Rule 11(b) and the Litigation Accountability Act

¶ 29. Quest Rehab filed an amended complaint on August 21, 2003. Lakeview filed an answer and counterclaim asserting that Quest’s action against Lakeview was malicious, baseless, and frivolous, entitling Lakeview to sanctions pursuant to Mississippi Rule of Civil Procedure 11(b) and the Litigation Accountability Act (LAA). After both parties rested their cases, the court permitted Lakeview to voluntarily withdraw the counterclaim. Quest argued that it was entitled to attorney’s fees for defending the counterclaim under Rule 11(b) and the Litigation Accountability Act because Lakeview’s withdrawal shows the counterclaim was interposed for delay or harassment and Lakeview expanded the proceedings unnecessarily. The trial court denied Quest’s request, and Quest appeals. Lakeview avers that it withdrew the counterclaim because the trial court would not consider the evidence that supported the claim.

¶ 30. At trial, a party may secure a dismissal of a claim only upon order of the court and upon such terms and conditions as the court deems proper. M.R.C.P. 41(a)(2). The terms and conditions attendant to the dismissal are discretionary with the trial court and may include awarding attorney’s fees as protection for the unwitting litigant. Bellsouth Pers. Commc’n, LLC v. Bd. of Supervisors of Hinds Cty., 912 So.2d 436, 443-44(¶ 26) (Miss.2006). Quest does not argue that the trial court abused its discretion by failing to award Quest attorney’s fees as compensation for the cost of defending the counterclaim pursuant to Rule 41(a)(2). Rather, Quest contends that it was entitled to attorney’s fees pursuant to Rule 11(b) and the LAA because Lake-view’s counterclaim was frivolous.

¶ 31. The LAA provides:

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

Miss.Code Ann. § 11-55-5(1) (Rev.2002). A claim is without substantial justification when it is frivolous, groundless in fact or law, or vexatious. Miss.Code Ann. 11-55-3(a) (Rev.2002). In determining whether a claim is frivolous, we look to the Rule 11 definition of “frivolous.” Wilson v. Greyhound Bus Lines, 830 So.2d 1151, 1159(¶ 21) (Miss.2002) (quoting Scruggs v. Saterfiel, 693 So.2d 924, 927 (Miss.1997)). Under Rule 11, a claim is frivolous “only when, objectively speaking, the pleader or movant has no hope of success.” Id. “Though a case may be weak or ‘lightheaded,’ that is not sufficient to label it frivolous.” Id. The fact that an argument is wrong or untimely does not necessarily render the argument frivolous. Miss. Dept. of Human Servs. v. Shelby, 802 So.2d 89, 97(¶ 33) (Miss.2001). We review the trial court’s decision not to award sanctions under Rule 11 or the LAA for abuse of discretion.

¶ 32. Lakeview»' contends that with the counterclaim it planned to show that on another occasion Ted Cain had entered into a written contract with a nursing home and had orally modified the contract, then sued the nursing home asserting the written contract. The trial court refused to hear Lakeview’s discussion of Quest’s contract with the other nursing home and Lakeview voluntarily withdrew the counterclaim. While Lakeview’s Rule 11 claim was weak, we cannot say that, objectively speaking, Lakeview had no hope of success such that the trial court’s denial of sanctions was an. abuse of discretion. This issue is without merit.

IV. THE COURT ERRED BY GRANTING A DIRECTED VERDICT DENYING H. TED CAIN D/B/A QUEST REHAB PUNITIVE DAMAGES.

¶ 33. Quest contends it is entitled to punitive damages because Lake-view tortiously breached the contract by terminating Quest’s services without the requisite notice and without just cause. For entitlement to punitive damages in a breach of contract case, the plaintiff must show by a preponderance of the evidence that the breach was the result of an intentional wrong or that the defendant acted maliciously or with reckless disregard of the rights of the plaintiff. Hamilton v. Hopkins, 834 So.2d 695, 703(¶ 26) (Miss.2003). The breach must rise to the level of an independent tort. Id. at 704(¶ 27). The fact that the defendant willingly chose not to complete the contract is insufficient to warrant punitive damages. Id. There is nothing about this case to indicate Lake-view acted maliciously or with reckless disregard for Quest’s rights such that the breach rose to the level of an independent tort. This was an ordinary breach of contract case for which punitive damages are inappropriate.

ISSUE ON CROSS-APPEAL

I. QUEST REHAB’S EVIDENCE FOR ALLEGED LOST PROFITS WAS NOT SUFFICIENT UNDER MISSISSIPPI LAW.

¶ 34. On cross-appeal, Lakeview argues that the trial court erred by admitting Quest’s evidence of lost profits, which consisted of the testimony of its accountant and chief financial officer, Tommy Kuluz. Kuluz prepared a statement estimating Quest’s lost future profits from August 27, 1998, through February 28, 1999, the time remaining in the contract term subsequent to Lakeview’s breach. Kuluz estimated that Quest’s future profits would have been $126,688.14. In projecting this figure, Kuluz testified that he selected invoices from April, May, and June, three months in the middle of the contract that did not include the highest or lowest invoices. He averaged the amounts billed by these invoices, deducted the costs of the therapist salaries and overhead, and arrived at the lost profits figure of $126,688.14. The jury awarded less than half that amount, $62,500.

¶ 35. We review the trial court’s admission of evidence for abuse of discretion. Thompson Mach. Commerce Corp., 687 So.2d at 152. We will not reverse the admission of evidence unless the error adversely affected a substantial right of a party. M.R.E. 103(a). A party seeking to recover for lost profits in a breach of contract case must establish the claim with reasonable certainty. Ishee v. Peoples Bank, 737 So.2d 1011, 1013(¶ 8) (Miss.Ct.App.1998). “The unique nature of each contract leaves claims for lost profits to be determined on a case by case basis, as there are no concrete elements of such a claim aside from their establishment to a reasonable certainty.” Id. However, a party cannot recover for lost profits if the award is based upon mere speculation and conjecture. Lovett v. E.L. Garner, Inc., 511 So.2d 1346, 1353 (Miss.1987). Damages are speculative only when the cause is uncertain, not when the amount is uncertain. Parker Tractor & Implement Co. v. Johnson, 819 So.2d 1234, 1239(¶ 24) (Miss.2002). “Where it is reasonably certain that damage has resulted, mere uncertainty as to the amount will not preclude the right of recovery or prevent a jury decision awarding damages.” Cain v. Mid-South Pump Co., 458 So.2d 1048, 1050 (Miss.1984). When loss has occurred but “the extent of the injury and the amount of damage are not capable of exact and accurate proof,” damages may be awarded if the evidence lays “a foundation which will enable the trier of fact to make a fair and reasonable estimate of the amount of damage.” Id. This Court has recognized the use of past earnings to estimate lost profits. Ishee, 737 So.2d at 1013(¶ 9) (citing Kaiser Inv., Inc. v. Linn Agriprises, Inc., 538 So.2d 409, 416 (Miss.1989); Sanders v. Dantzler, 375 So.2d 774, 777 (Miss.1979)).

¶36. Lakeview argues that Ku-luz’s calculation of lost profits was based upon speculation and conjecture and should not have been admitted into evidence. Lakeview points out that Kuluz admitted that there was some speculation inherent in his estimation of lost profits and that his calculations were not based upon generally accepted accounting principles. Lakeview also argues that the amount of therapy Quest performed at Lakeview could have changed during the contract based upon a decrease in the number of patients at Lakeview or variances in patient needs. For these reasons, Lakeview’s expert accounting witness opined that an estimation of Quest’s future profits would be impossible to make.

¶ 37. In this case, only the amount of damages for lost future profits was uncertain, not the fact that those damages had resulted. We find that Kuluz’s testimony laid a sufficient foundation to enable the jury to reach a fair and reasonable estimation of damages for lost profits. In Benchmark Health Care Center, Inc. v. Cain, 912 So.2d 175, 179-81 (¶¶8-11) (Miss.Ct.App.2005), this Court adjudicated the issue of damages for lost profits concerning Quest’s therapy services contract with Benchmark Health Care Center. The jury had found Benchmark breached the contract and awarded damages for lost profits. Id. at 178(¶ 5). The therapy services contract at issue was similar or identical to the one sub judice. Id. at 177-78(¶ 2). Kuluz testified and used the same method he used in this case in order to calculate Quest’s lost future profits, except that he used two, not three, months of prior invoices. Id. at 180(¶ 10). In finding that Kuluz’s testimony proved damages to a reasonable certainty, we stated:

We find that the evidence presented by Quest regarding lost profits was not purely speculative. On cross-examination, counsel for Benchmark repeatedly questioned Kuluz whether his estimation of lost profits involved some amount of speculation. Kuluz understandably replied that his estimate did involve a certain amount of speculation, but that the report he prepared was based upon the specific evidence of two previous months of Quest’s operations with Benchmark. This being the case, we find that the testimony of Kuluz and the report he prepared reflected a fair and reasonable estimate of Quest’s projected lost profits. While some amount of speculation was necessarily involved in a computation of lost profits that had never actually been realized, Kuluz’s report and testimony were projected from actual profits realized.... Extrapolating actual past profits to reach a figure that represented anticipated future profits was a reasonably certain method of proving lost profits.... Some measure of speculation must be involved in an attempt to compute unrealized profits.

Id. at 180(¶ 9).

¶ 38. The Benchmark case is squarely on point with the case sub judice. We find that Quest proved its damages for lost profits to a reasonable certainty and the trial court did not abuse its discretion in allowing Kuluz’s testimony on lost profits. This issue is without merit.

¶ 39. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR PROCEEDINGS CONSISTENT WITH THIS OPINION AND AFFIRMED ON CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE HALF TO THE APPELLANT/CROSS-APPELLEE AND ONE HALF TO THE APPEL-LEES/CROSS-APPELLANTS.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. ROBERTS AND CARLTON, JJ., CONCUR IN RESULT ONLY.