author: SYLVIA R. COOKS, Judge.

text:
    Marian W. ANDERSON, et al. v. Jeanette MESSENGER, et al.
    No. 10-1227.
    Court of Appeal of Louisiana, Third Circuit.
    March 23, 2011.

      William R. Jones, Coushatta, LA, for Plaintiffs/Appellants, Marian W. Anderson and Kathy Box Anderson.
    Mark L. Roberts, McCoy, Roberts & Begnaud, Ltd., Natchitoches, LA, for Ap-pellee, Jeanette Messenger.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and ELIZABETH A. PICKETT, Judges.
   SYLVIA R. COOKS, Judge.

|,In 1996, Paul Messenger (now deceased) approached Natchitoches Parish police juror Joe Mitchell, concerning the possibility of removing King Hill Road from the public system. That road is located in northwest Natchitoches Parish, running approximately six miles, parallel to Interstate 49, and connecting with Highways 174 and 485. Mr. Messenger owned property bordering a 2.7 mile stretch of King Hill Road. Mr. Messenger sought ownership of the portion of the road traversing his property and not the entire length of the road.

In pursuit of his objective of removing the road from the public system, Mr. Messenger, following formal police jury policy, published notice in the newspaper of record declaring that intent. At a subsequent meeting of the Natchitoches Parish Police Jury (hereafter Police Jury), Mr. Messenger’s request was discussed. The purpose of the removal was discussed, and comments were allowed. There was one person who spoke in opposition, arguing there were “a lot of people here that use this road.” Eventually, the Police Jury unanimously approved removing 4.3 miles of King Hill Road out of the parish road system and converting it to a private road.

Subsequent to that decision, Mr. Messenger erected two gates on the road on each side of his property. The gates were approximately 2.7 miles apart, and Mr. Messenger did not lock the gates. The plaintiffs in this matter, Marian and Kathy Anderson, continued to use the 2.7 mile stretch of road despite the gates. However, in 2008, Mr. Messenger’s widow, Jeanette, began locking the gates to prevent any public access to the road. The Andersons then filed a petition seeking a mandatory injunction that would allow them access to the road and/or sought to declare null and |2void the Police Jury’s earlier action. After a trial on the merits, the trial court rendered written reasons for judgment finding: (1) the actions of the Police Jury rendered the relevant portion of the road private; (2) the inaccurate mileage (4.3 miles) listed in the resolution did not adversely affect the revocation; (3) the Police Jury did not act arbitrarily or capriciously; and (4) the plaintiffs did not acquire a servitude of passage across the Messenger property. ' Therefore, judgment was rendered dismissing all of the plaintiffs’ claims. This appeal followed. Plaintiffs assert the following assignments of error:

1.The trial court erred in finding the Police Jury did not act arbitrarily or capriciously in removing part of King Hill Road from the parish road system.
2. The trial court erred when it held the Police Jury intended to close and abandon the middle part of “the Road”, when the advertisement and minutes of ' the meeting only showed an intent to remove “the Road” from the parish road system.
3. The trial court erred when it held 2.7 miles of “the Road,” which was never described, was removed from the parish road system instead of 4.3 miles as stated in the advertisement and minutes.
4. The trial court erred when it'held that plaintiffs who used “the Road” for over thirty (30) years had not acquired by acquisitive prescription a predial servitude of passage under La.Civ.Code art. 742.

ANALYSIS

Revocation of a public road dedication is governed by La.R.S. 48:701, which provides in pertinent part:

The parish governing authorities ... of the state ... may revoke and set aside the dedication of all roads, streets, and alleyways laid out and dedicated to public use within the respective limits, when the roads, streets, and alleyways have been abandoned or are no longer needed for public purposes.
Upon such revocation, all of the soil covered by and embraced in the roads, streets, or alleyways up to the center line thereof, shall revert to the then present owner or owners of the land contiguous thereto.

|sPlaintiffs first two assignments of error question whether the Police Jury intended to revert ownership of the road to Mr. Messenger; and, if so, whether that decision to do so was arbitrary and capricious and, therefore, invalid. This court in American Security Bank of Ville Platte v. Rebokus, 527 So.2d 71, 72 (La.App. 3 Cir.1988), (citing Bulliard v. Delahoussaye, 481 So.2d 747 (La.App. 3 Cir.1985)), held that La.R.S. 48:701 required neither the execution of a notarial act nor the recordation of the abandonment, but simply that the street in question “be abandoned in fact or -no longer needed for public purposes.”

There were -six separate advertisements of the Police Jury meeting concerning the proposed redesignation. The advertisement specifically stated that the public hearing involved “removal of certain roads, or portions of roads, from the Parish Road System.” The advertisement then specifically identified King Hill Road as the road in question.

At the meeting, the Police Jury heard from L.C. Prelow, who spoke in opposition to Mr. Messenger’s request, stating, he was opposed to the “closing” of the road, and not just the cessation of maintenance of the road. Mr. Prelov/s comments clearly evidenced a belief that passage of Mr. Messenger’s request would result in the closure of a portion of the road to public access. Also, during the meeting there was a comment from a police juror noting that 1-49 provided an alternate route between Highways 174 and 485 (which are the highways roads Kings Hill Road runs between), and had an exit for both highways. As the trial court noted, this indicates the police juror believed King Hill Road would no longer be used by the public as a route between Highways 174 and 485. Lastly, shortly after passage of the resolution, Mr. Messenger erected gates at both'ends of his property. At no point in the following twelve years did the Police Jury request him to remove the gates. Together, |4these facts indicate the Police Jury intended to remove the middle portion of the road from public responsibility.

The trial court also recognized it was unrealistic to believe Mr. Messenger would have requested the Police Jury stop maintaining the road, but still have left it open to public access. The trial court stated as follows in its reasons for judgment:

Plus, it is obvious that Mr. Messenger sought to revert the road to private use. It makes no sense for a landowner to want to have the police jury stop maintaining the road and at the same time keeping the road public. The only reason a landowner would want to change the nature of the road is to prevent access, not to continue public access and at the same time be required to privately maintain the road.

This court has held we. “will not interfere with the function of public bodies in the exercise of discretion vested in them in the abandonment of streets unless they abuse their power by acting arbitrarily and capriciously.” Bulliard, 481 So.2d at 751. In Bulliard, we noted access to one’s property is an important factor in determining whether a police jury’s decision to privatize a road is arbitrary and capricious. In this case, no property has been landlocked nor is any access denied to the plaintiffs or anyone else’s property. Plaintiffs note they have been inconvenienced by the inability to traverse King Hill Road as in the past. However, simple inconvenience does not make the police jury’s decision arbitrary. The trial court cited with approval the decision in Craig v. Police Jury Grant Parish, 265 Fed.Appx. 185 (5th Cir.2008), wherein the federal court held a police jury’s decision to deny access to property, even if it is more convenient, does not make it arbitrary. .

Plaintiffs cite in support of their position this Court’s decision in Luneau v. Avo- yelles Parish Police Jury, 196 So.2d 681 (La.App. 3 Cir.1967). However, in that case, we found for the plaintiffs primarily because the removal of the road in question from the parish road system resulted in their property becoming landlocked. We noted:

|sIn fact, our research discloses no case upholding the abandonment of an established and well-maintained public road, and certainly not where that road constitutes the only means whereby an abutting landowner may enter or leave his property.

The Craig court specifically noted our decision in Luneau and distinguished it, emphasizing the closure of the road did not result in property being.landlocked as it did in Luneau. Similarly, in the present case, the plaintiffs property was not landlocked by the removal of the 2.7 mile portion of King Hill Road, and they have publicly maintained roads on which to come and go from their property.

We find no error in the trial court’s determination that the police jury intended to remove the middle portion of King Hill Road from the parish road system. We also find the police jury’s action in removing that road was not arbitrary and capricious. As La.R.S. 48:701. provides that such a revocation reverts ownership to the contiguous owner of the road, the Messengers became the owner of the road.

Plaintiffs also assert on appeal that the trial court erred when it held 2.7 miles of King Hill Road was removed from the parish road system, when the advertisement and minutes listed 4.3 miles as the portion of the road to be redesignated. This argument was made below, and the trial court, noting it did not know where the 4.3 mile figure came from, gave the following reasons for finding the inaccurate mileage listing did not render the redesignation invalid:

... the ■. Court finds the intent of the police jury was to remove the 2.7 mile stretch of road through the. Messenger property. The road, which-is longer than 4.3- miles, is still publicly maintained outside the Messenger gates, but not inside the gates. While the mileage may be inaccurate, the Court finds the police jury actually intended to remove only the 2.7 mile stretch of road between the Messenger gates.

We agree with the trial court that the inaccurate listing in the advertisement and subsequent Police Jury resolution does not render the police July’s action invalid. The actions of the Police Jury in allowing the Messengers to gate the 2.7 mile portion |r,of road and in continuing to maintain, the remaining portions of the road show its clear intent was to abandon only the 2.7 miles of the road running through the Messenger property.

Lastly, plaintiffs argue under La. Civ.Code art. 742 they acquired a servitude of passage across the Messenger property through their continuous use of the road for over thirty (30) years. Louisiana Civil Code Article 742 provides:

The laws governing acquisitive prescription of immovable property apply to apparent servitudes. An apparent servitude may be acquired by peaceable and uninterrupted possession of the right for ten years in good faith and by just title; it may also be acquired by uninterrupted possession for thirty years without title or good faith.

As the trial court noted, a private individual cannot acquire by acquisitive prescription those things that are “owned by a political subdivision in its public capacity.” Band v. Audubon-Park Commission, 05-937, pp. 6-7 (La.App. 4 Cir. 7/12/06), 936 So.2d 841, 845, unit denied, 06-1990 (La.11/3/06), 940 So.2d 670. Thus, since the road was owned and maintained by the parish prior to 1996, it was insusceptible to acquisitive prescription. Therefore, plaintiffs could not possess the servitude of purposes of acquisitive prescription until 1996, which would not be sufficient to attain the required thirty (30) years of uninterrupted possession. The trial court correctly found plaintiffs had not acquired a servitude of passage over the Messenger property.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to plaintiffs-appellants.

AFFIRMED.

      . The trial court noted that the reference in the revocation passed by the Police Jury is to 4.3 miles, but it is the 2.7 mile portion of the road that is involved in this litigation.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    Shawn BLACKLEDGE, Plaintiff-Appellant v. SOL’S PIPE & STEEL, INC., Defendant-Appellee.
    No. 46,148-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 23, 2011.

      Denise A. Vinet, KNH Law Firm, LLC by Kelly N. Hunt, for Appellant.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell, L.L.P., by Robert A. Dunkelman, Shreveport, Jerald Lee Perlman, Baton Rouge, for Appellee.
    James David Caldwell, for Attorney General’s Office.
    Before WILLIAMS, STEWART and DREW, JJ.
   DREW, J.

j i Shawn Blackledge allegedly injured his back and legs in a fall on August 1, 2008, while working for Sol’s Pipe and Steel, Inc. (“Sol’s”), as part of an inmate work-release program. At the time, Blackledge was living in a halfway house.

He was unable to move his legs and confined to a wheelchair for several days. He returned to light-duty work on August 28, 2008. His employment with Sol’s ended on November 19, 2008, in accordance with work-release policies. Ten days later, he was released from Richwood Correctional Facility in Monroe.

Blackledge filed a disputed claim for compensation seeking benefits for the four weeks that he was unable to work. Sol’s filed a motion for summary judgment on the grounds that under La. R.S. 23:1201.4 Blackledge had-forfeited any compensation benefits while incarcerated. Four days before the date fixed for the hearing on the motion for summary judgment, Black-ledge filed a motion to stay in the workers’ compensation proceeding, and a petition for declaratory judgment in district court seeking to have La. R.S. 23:1201.4 declared unconstitutional. The district court found the statute to be constitutional, and dismissed Blackledge’s petition. He now appeals.

Sol’s has answered the appeal and filed a motion for sanctions for what it terms a frivolous appeal. ■

The Statute in Question

La. R.S. 23:1201.4 provides:

|2The employee’s right to compensation benefits,, including, medical expenses, is forfeited during any period of incarceration, unless a workers’ compensation judge finds that an employee has dependents who rely on a compensation award for their support, in which case said compensation shall be made payable and transmitted to the legal guardian of the minor dependent or other person designated by the workers’ compensation judge and such payments shall be considered as having been made to the employee. After release from incarceration, the employee’s right to claim compensation benefits shall resume. An employee who is incarcerated but is later found to be not guilty of felony criminal charges or against whom all felony charges have been dismissed by the prosecutor shall have the prescriptive period for filing a claim for benefits under this Chapter extended by the number of days he was incarcerated.

Equal Protection Claim under Art. I, § 3 of the Louisiana Constitution

Our state constitution requires equal application of the law in similar circumstances. The statute creates, however, a system where work-release employees are treated differently from other employees:

Plaintiff alleges that the statute in question is not substantially related to any legitimate government interest.

Sol’s argues that this policy prevents a prisoner from receiving a financial windfall during a time when he is housed and fed by the government. Further, the prisoner’s inability to claim workers’ ^compensation from a prospective work-release employer is an inducement for that employer to take a chance on hiring a prisoner.

Part of the rationale behind this statute is that workers’ compensation benefits are a partial replacement of wages that a worker would otherwise be able to earn, but an incarcerated individual is not in a position to earn wages. In Jowers v. Liberty Const. Co., 32,068 (La.App.2d Cir.6/16/99), 740 So.2d 735, the WCJ concluded that the statute did not apply to a person who is incarcerated while awaiting trial. This court reversed, concluding that the claimant was not capable of earning wages while being detained, and an award of benefits would allow him to receive additional benefits while his basic needs were already being met by the state. Black-ledge was obviously able to earn wages despite being incarcerated.

In White v. BHB Oil, 45,173 (La.App.2d Cir.4/14/10), 34 So.3d 1115, writ denied, 2010-1042 (La.9/3/10), 44 So.3d 690, the claimant, an inmate at Caddo Correctional Center, was injured while working in a work-release program. In ruling that the claimant had forfeited his benefits while incarcerated, this court noted that the purpose of the statute was not to punish an injured worker for being incarcerated, but to recognize that the state provides for an inmate’s needs. This court noted that the workers’ compensation laws are designed to prevent an employee from contemporaneously collecting duplicative wage-loss benefits.

Blaekledge unsuccessfully seeks to distinguish his. situation from White, supra, arguing that during the time frame in question, he did not return to a correctional facility at the end of each work day, but instead returned to a halfway house. We find this to be a distinction without a 14difference. We find that Blaekledge was still incarcerated, even though extended the privilege of occupancy in a halfway house.

Blaekledge argues that his wages, not state funds, paid for his own needs.

By the very terms of the Work-Release Program statute, La. R.S. 15:711, Black-ledge was responsible for the cost of his room, board, clothing, and other necessary expenses incident to his employment. Blackledge’s wages were collected by the sheriff and used to pay his expenses. Any balance left over was to be given to Black-ledge upon his discharge. Blaekledge in fact earned $21,000 working for Sol’s, and $18,000 of that was retained by the sheriff. This statistic does nothing to disturb our view of the statute’s constitutionality.

The state has an interest in prisoners being successfully integrated back into society and becoming positive citizens. See United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001); Samson v. California, 547 U.S. 843, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006). A work-release program, which is one point on a continuum of possible punishments, helps promote that interest.

Due Process Claim under Art. I, § 22 of the Louisiana Constitution

Blaekledge further claims that La. R.S. 23:1201.4 violates his due process rights under Article I, § 22 of the Louisiana Constitution, in that it bears no real and substantial relationship to an appropriate governmental objective.

We disagree. If nothing else, the statute encourages an employer to hire a convict, which increases the odds for a successful reintegration into |fisociety. Avoiding duplicative payments to prisoners and generally keeping down unnecessary, workers’ compensation costs-are also worthy goals of a just society.

Plaintiff’s Lack of Evidence

Blaekledge offered no evidence at the hearing on his petition- for declaratory judgment.. The items attached to Sol’s opposition to the petition are the only evidence in the appellate record. These items established the date of injury and the fact that Blaekledge was incarcerated during the period of alleged disability.-

There is no evidence in the appellate record establishing: (1) that Blaekledge lived in a halfway house at the time of the accident; (2) what he earned while working for Sol’s; (3) how much of his wages were retained by the sheriff; or (4) the nature of his job duties after he returned to work.

Blackledge’s showing is inadequate, and on this showing, we have no basis to overrule the ruling of the trial court.

Constitutionality of La. R.S. 23:1201.4

Our reading of the cases proffered by plaintiff provide no appreciable support for his argument that the statute is unconstitutional on its face. As noted by the trial court, Blaekledge has not attacked the constitutionality of the statute as it applies to a particular individual, a somewhat lighter, but still difficult, burden.

A statute is presumed constitutional until held otherwise. An attack on the general, constitutionality of a statute requires the plaintiff to establish that no set of circumstances exist under which the statute would be valid. This burden has clearly not been met.

| (¡Plaintiff has misread the statute. It does not say that a worker is never entitled to compensation benefits if injured while in jail. It says that benefits are forfeited during a period of incarceration if a WCJ finds that the employee has no dependents who rely on a compensation award for their support.

The statute does not violate the equal protection clause because it furthers an appropriate state interest. First, it prevents a windfall for prisoners whose upkeep is paid for by the state. Second, it fosters the goal of prisoner rehabilitation by giving an incentive to employers to participate in the work-release program while knowing that the state will pay for medical care and upkeep in the event of a work-related injury. Third, Louisiana has an interest in minimizing the costs of the workers’ compensation program.

The statute does not violate the due process clause because it bears a rational relationship to a legitimate governmental interest which has been recognized by this court. The goal of the statute is not to punish an injured worker for being incarcerated, but to prevent him from receiving a windfall. A general principle underlying the wage-loss benefit coordination laws is to preclude the collection of duplicative wage-loss benefits. See Jow-ers, supra.

Even if Blackledge’s status as a halfway house resident was established for the record, this does not change the result. Even when an inmate is in a work-release program, he is still relieved of the burden of upkeep and maintenance. In addition, an inmate living in a halfway house is still considered incarcerated for purposes of La. R.S. 23:1201.4. In Jackson v. Johnson, 475 F.3d 261 (5th Cir.2007), the federal Fifth Circuit concluded |7that halfway house detention was equivalent to incarceration or confinement for purposes of the Prison Litigation Reform Act.

Damages, Attorney’s Fees, and Sanctions

Damages and attorney’s fees for a frivolous appeal can be awarded when one of three grounds can be shown: (1) the appeal does not present a substantial legal question; (2) the obvious purpose of the appeal is solely to delay the action; or (3) appellate counsel does not seriously believe the view that he has advocated.

We do not find that any of these three preconditions exist here. Accordingly, we decline to assess any damages, attorney’s fees, or sanctions.

DECREE

At plaintiffs cost, the ruling of the trial court is AFFIRMED.


author: COOKS, Judge.

text:
    STATE of Louisiana v. Ronald G. GRUDEWICZ, aka Ronald G. Grideiocz, et al.
    No. 10-958.
    Court of Appeal of Louisiana, Third Circuit.
    March 23, 2011.

      Carey J. Ellis, III, Louisiana Appellate Project, Rayville, LA, for Defendant/Appellant, Ronald G. Grudewicz.
    Michael Harson, District Attorney, Mark Garber, Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Court composed of ULYSSES GENE-THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and ELIZABETH A. PICKETT, Judges.
   COOKS, Judge.

11 Defendant, Ronald G. Grudewicz, was charged by bill of information with pornography involving juveniles, in violation of La.R.S. 14:81.1. Defendant was arraigned and entered a plea of not guilty. After several continuances requested by Defendant, he changed his plea to not guilty and not guilty by reason of insanity and ■ requested a sanity commission be appointed.

A hearing was held after which the trial court found Defendant competent to proceed to trial. Immediately following, Defendant filed- a motion to quash the bill of information on the ground that the time to commence trial had prescribed.pursuant to La.Code Crim.P. art. 578. The matter was heard by the trial court and denied. Defendant then entered a plea of no contest to the charge reserving his right to appeal the denial of the motion to quash. Additionally, as part of the plea agreement, Defendant was sentenced to two years at hard labor without the benefit of probation, parole, or suspension of sentence.

On appeal, Defendant asserts as his sole assignment of error the trial court erred in denying his motion'to quash.

ANALYSIS

During the hearing on the motion to quash, Defendant asserted in pertinent part:

[W]e would acknowledge that ■ this matter was left open on April 8, 2002, passed for the purpose of the sanity commission ... [D]r. Gad’s evaluation was filed into the record on September 9, 2002, while the other doctor’s report was filed in the record on December 19, 2003. What we are suggesting is at that point the court and the state had notice that my client was competent to stand trial, as both reports so indicate. We would also point out that from the point from December 9, 2008 to present, nothing has happened and on that basis and based on the Article 578, we are arguing that the time to proceed to trial has passed, and, therefore, ask the matter be quashed.
|⅞1 would just point out that upon the , filings of those reports, that there is now notice, and our point is once notice is presented, it is the State’s duty ... to proceed to trial ... and that was not done.

The State, in pertinent part, gave the following response at the hearing on the motion to quash:

[W]e do recognize that 578 is controlling, but point out to the court that Article 578 is modified by Article 580, and also in turn by Article 642 which dictates specifically that there can be no further proceedings of any kind once the issue of sanity has been raised, until that issue ... has been ruled on by a court ... [Tjhere has been no argument or authority set before this court that would indicate that it was the State’s responsibility to bring to fruition what was originally a defense motion for a sanity commission.

At the conclusion of argument from both parties, the trial court ruled as follows:

The Court is cognizant of the case law and the statutory law particularly in reference to time limitations upon the institution of trial and the concept of lenity, however, the court looks at the strong wording of the statute in effect here as argued by the State here. When the question of the defendant’s mental incapacity is raised, and I am quoting from Article 642 of the Code of Criminal Procedure, there shall be no further steps in the criminal prosecution except in the institution of prosecution until the defendant is found to have the mental capacity to proceed. The defendant is not— and now I am getting away from the statute and using my words — the defendant is not found competent until a court finds him competent. So the fact that experts say they would recommend that he is competent is the Court’s and only the Court’s function to make that determination, and in this case that was not done.
The defense effectively argues that, okay, it’s the prosecution’s responsibility to move the case, but the way that statute is written, no further steps until the defendant is found to have the mental capacity to proceed seems to indicate that it’s the court, not the state or the defendant’s responsibility, because if the State makes a motion to have the defendant found competent and to proceed, that could be construed as violating the statute as a step in the criminal prosecution, the fact that he even files that motion to make the determination, so he could be found to be violating the statute and not be allowed to make the motion because of the way the statute is worded, making the motion would be a further step. So it could be argued and it is argued by the State that it’s the Court’s responsibility to make that determination before the case can proceed. So the State is not at fault. It was the Court’s responsibility to bring the case forward, according to that strict reading of that statute which was carefully worded in that sentence. So it seems to me to | ¡.overcome the considerations of lenity and the time considerations, the case on the limitations of time, and there is no case law that states otherwise than the way the state just argued.
And then, of course, 580 says the time limitation shall be suspended until the ruling of the Court. So the Court never ruled until just now when I ruled that he was competent, so the Court will then deny the motion to quash.

Defendant contends in brief that this case involves a matter of prescription, citing La.Code Crim.P. art. 578. Defendant argues the trial court erred in finding La. Code Crim.P. art. 642 prevented the State from bringing the matter to trial. The Defendant asserts, in pertinent part:

C.Cr.P. art. 579 states unambiguously that the period of limitation is interrupted if the defendant cannot be “tried because of insanity ...” C.Cr.P. art. 642 reads that proceedings are halted until a ruling on competency. Article 642 is ambiguous in the sense that there is no direction as to whether the Court or the State has the duty to bring forth the proceeding.
The State should not be allowed to circumvent the clear language of C.Cr.P. art. 578 by claiming that it was prevented from having the Trial Court determine competency by the language of C.Cr.P. art. 642.

In State v. Sorden, 09-1416 (La.App. 4 Cir. 8/4/10), 45 So.3d 181, the court addressed the difference in the statutory right to a speedy trial versus the constitutional right to a speedy trial. The court explained, in pertinent part:

A state’s ability to institute prosecutions or commence trials is subject to the protections of the Sixth Amendment, but a defendant’s ability to invoke statutory limitations on institution of prosecution or, as here, commencement of trial is not conditioned or dependent upon establishing a separate Sixth Amendment violation. See State v. Powers, [344 So.2d 1049 (La.1977) ] infra. The United States Supreme Court in Barker v. Win-go approvingly cited the right of legislatures to define more narrowly the speedy trial right by enacting laws that set forth ■ specific time limitations. Barker, 407 U.S. 514, 523, 92 S.Ct. 2182, 33 L.Ed.2d 101 (the Court stated that, in recognizing the virtue of clarifying when the speedy trial right is infringed and simplifying courts’ application of it, “some legislatures have enacted laws and some courts have adopted procedural rules which more narrowly define the right.”). The provisions of La.C.Cr.P. art. 578 may in this instance provide a 14more rather than less restrictive time limitation for commencement of trial than would be required under a Barker v. Wingo analysis.

Thus, statutory and constitutional rights are distinct bases for asserting the right to speedy trial. State v. Powers, 344 So.2d 1049,1051 (La.1977). The Louisiana Supreme Court, in State v. Powers, supra, 344 So.2d at 1051, n. 5, discussed the distinction between constitutional and statutory speedy trial guarantees:

Interestingly, the statutory provision is narrower than the constitutional right to a speedy trial (because, for example, the acceptable time period may be longer than that approved under the constitutional guarantee) and it is at the same time broader than the constitutional right (because, for example, there is no need to assess prejudice to the accused nor to require that an accused make known his desire for an early trial).... The state’s reason for delay is of no moment in questions of the running of statutory time periods, See State v. Martens, 338 So.2d 95 (La.1976), but may well be relevant in a determination as to whether defendant’s right to speedy trial has been violated. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (other citations omitted).
Accordingly, the question of whether a speedy trial violation is statutory or constitutional involves wholly separate inquiries. Regardless of whether Ms. Sorden can establish a showing of an infringement of her constitutional right to speedy trial, the success of her statutory claim is not dependent upon the success or failure of a constitutional claim.

Id. at 185-86.

The record reflects the following time-line which is pertinent in deciding this issue:

Bill of Information filed December 7,1999
Defendant arraigned January 4, 2000
Continuances requested by the Defendant and granted April 3,2000 August 7, 2000 November 6, 2000 January 1,2001 March 12,2001 May 14,2001 August 13,2001 November 12, 2001 January 14, 2002
Defendant filed motion seeking appointment of sanity commission February 19, 2002
Trial court grants appointment of sanity commission (Dr. Gad and Dr. de Mahy) February 21, 2002
Changed Plea to Not Guilty/ Not Guilty by Reason of Insanity February 25, 2002
Order granting appointment filed into the record February 25, 2002
Dr. Gad’s report is filed September 9, 2002
Dr. de Mahy’s report is filed December 19, 2003
Defendant fails to appear in court July 23,2009
Defendant served in open court with trial date of October 26, 2009 August 7, 2009
Defendant requests and is October 26,2009 granted continuance of trial
Defendant requests and is November 30, 2009 granted continuance of trial
Trial court finds Defendant May 18,2010 competent to proceed to trial
Defendant files motion to May 18,2010 quash and motion is denied
Defendant enters plea of no May 18, 2010 contest

| ^Louisiana Code of Criminal Procedure Article 578 provides for the State, in this case, to commence trial within two years of filing of the bill of information. The bill of information was filed on December 7,1999, and the Defendant pled guilty on May 18, 2010. Thus, on its face, more than two years elapsed from the time the bill was filed until the plea was entered.

In State v. Morris, 99-3235, p. 1 (La.2/18/00), 755 So.2d 205, the court explained, in pertinent part:

IfiOnce the accused shows that the state has failed to bring him to trial within the time periods specified by La.C.Cr.P. art. 578, the state bears a heavy burden of demonstrating that either an interruption or a suspension of the time limit tolled prescription. State v. Joseph, 93-2734, p. 1 (La.6/3/94), 637 So.2d 1032; State v. Rome, 630 So.2d 1284, 1286 (La.1994); State v. Estill, 614 So.2d 709, 710 (La.1993).

Louisiana Code of Criminal Procedure Article 579 provides, in pertinent part:

A. The period of limitation established by Article 578 shall be interrupted if:
(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state; or
B. The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.

Louisiana Code of Criminal Procedure Article 580 provides, in pertinent part:

A. When a defendant files a motion to quash or other preliminary plea, the running of the periods of limitation established by Article 578 shall be suspended until the ruling of the court thereon; but in no case shall the state have less than one year after the ruling to commence the trial.

In State v. Lewis, 09-846, p. 40 (La.App. 3 Cir. 4/7/10), 33 So.3d 1046, 1073, writ denied, 10-967 (La.11/24/10), 50 So.3d 825, this court explained:

La.C.Cr.P. art. 580 provides that the time limitation is suspended when a defendant files a motion to quash or other preliminary plea. A preliminary plea is any pleading or motion filed by the defense which has the effect of delaying trial. State v. Brooks, 02-792, p. 2 (La.2/14/03), 838 So.2d 778, 782, reh’g denied, 02-792 (La.3/21/03). These pleadings include properly filed motions to quash, motions to suppress, or motions for a continuance, as well as applications for discovery and bills of particulars. Id.

In State v. Washington, 02-1346, p. 8 (La.5/20/03), 846 So.2d 723, 727, in footnote number ten, the supreme court noted, in pertinent part:

Washington filed an application for the appointment of a sanity | commission. According to LSA-C.Cr.P. art. 580, that preliminary motion suspended the time limitation until a ruling was made on his sanity. Thus, the State would have one year from the date of the trial court’s ruling on the report of the sanity commission in which to try Washington for aggravated rape.

In State v. Rome, 93-1221 (La.1/14/94), 630 So.2d 1284, the Louisiana Supreme Court discussed the distinction between “interruption” and “suspension.” The Court stated:

An interruption of prescription occurs when the state is unable, through no fault of its own, to try a defendant within the period specified by statute, in this case two years.... Once the cause of interruption disappears, the two-year time limit begins anew. See La.Code Crim.Proc.Ann. art. 579(B). In contrast, the prescriptive period is merely suspended, until the trial court rules on the filing of preliminary pleas. The relevant period is simply not counted, and the running of the time limit resumes when the motions are ruled on. Note, however, that “in no case shall the state have less than one year after the ruling to commence the trial.” La.Code Crim. Proc.Ann. art. 580.

Id. at 1287 (footnote omitted).

The bill of information was filed on December 7, 1999; thus, the State had until December 7, 2001, to bring the Defendant to trial unless the time period was interrupted or suspended. From the filing of the bill, one year and three months passed when the Defendant requested and was granted his first continuance of trial on April 3, 2000. Subsequent to that date, Defendant requested and was granted continuances on August 7, 2000; November 6, 2000; January 8, 2001; March 12, 2001; May 14, 2001; August 13, 2001; November 12, 2001; and January 14, 2002. Each time the continuance was ruled upon, pursuant to La.Code Crim.P. art. 580, the State had no less than one year to commence trial. Thus, from the last continuance, the State had until January 14, 2003, to commence trial. Defendant filed the motion for appointment of a sanity commission on February 19, 2002, and the sanity commission was appointed on February 21, 2002. According to the above case law, the motion for sanity commission is a preliminary plea which interrupted the running | sof the time period of La.Code Crim.P. art. 578. Therefore, the time period did not start to run again until the trial court ruled on the motion for sanity commission on May 18, 2010. La.Code Crim.P. art. 580. Following the denial of the motion, Defendant entered a guilty plea. Consequently, the time period of La. Code Crim.P. art. 578 had not tolled at the time Defendant entered the guilty plea. Therefore, the trial court properly denied the motion to quash.

DECREE

For the foregoing reasons, Defendant’s conviction is affirmed.

AFFIRMED.


author: LAMAR, Justice, KITCHENS, Justice,

text:
    Virginia McGEE, Individually; and Leroy Mitchell, as Conservator over the Estate of Virginia McGee v. RIVER REGION MEDICAL CENTER, et al.
    No. 2009-CA-01384-SCT.
    Supreme Court of Mississippi.
    March 3, 2011.
    Rehearing Denied May 5, 2011.

      Kenya R. Martin, attorney for appellants.
    Stuart B. Harmon, Jan F. Gadow, Jackson, attorneys for appellee.
    Before WALLER, C.J., LAMAR and PIERCE, JJ.
   LAMAR, Justice,

for the Court:

¶ 1. Virginia McGee suffered an intravenous infiltration and burns on her arm while a patient at River Region Medical Center and filed a malpractice lawsuit against the hospital. At trial, the judge ruled that McGee’s expert had failed to articulate the applicable standard of care and entered a directed verdict for River Region. McGee appeals, arguing, among other things, that the directed verdict was improper. We agree with McGee and reverse and remand this case for a new trial.

FACTS AND PROCEDURAL HISTORY

¶ 2. In the early morning hours of June 30, 2007, seventy-seven-year-old Virginia McGee was taken via ambulance to the emergency room at River Region Medical Center, complaining of general weakness and confusion. McGee had a history of high blood pressure and diabetes, and her blood-sugar level was low. En route to the ER, the paramedics inserted an intravenous catheter (IV) into McGee’s left arm to administer fluids to raise her glucose level.

¶ 3. Later that night, McGee’s attending nurse, Cheryl Washington, noticed that McGee had suffered an IV infiltration to her left arm. McGee claims that the infiltration was the result of Washington’s negligent administration of medicine through the IV. River Region claims that IV infiltration is a well-known risk of IV therapy and that its occurrence does not prove any negligent act by its nurses. After Washington noted the IV infiltration, she stopped the IV and started another one. A couple of hours later, Washington applied a warm compress to McGee’s left arm to treat the swelling from the infiltration. Washington did not consult a doctor before she applied the warm compress. A few hours after Washington applied the compress, she noticed blisters on McGee’s left forearm. After a few more days at River Region, McGee received additional care at Promise Hospital and was discharged. Some of McGee’s medical bills were paid by Medicare, and the hospitals “wrote off’ the remainder.

¶ 4. McGee, along with her son, Leroy Mitchell, as conservator of her estate, filed suit against Nurse Julie Antley, River Region Medical Center, and Jane Does 1 — 10. McGee alleged that River Region’s staff negligently had caused her IV infiltration, which led to blisters and boils on her left arm, nerve damage, and permanent disfigurement. McGee sought damages for current and future medical expenses, pain and suffering, permanent nerve damage, disfigurement, and emotional distress.

¶ 5. Prior to trial, River Region filed a motion in limine, asking the trial court to prohibit McGee from claiming as damages any amount that the hospitals had “written off.” The trial judge granted the motion as to River Region, but denied the motion as to Promise. The effect of the ruling was that McGee would be allowed to introduce as damages the entire $71,000 Promise bill, but only $5,000 of the River Region bill (the amount paid by Medicare).

¶ 6. At trial, McGee called Nurses Julie Antley and Cheryl Washington, who testified about the events surrounding McGee’s injuries. McGee then called Dr. Patricia Beare as an expert, who was expected to testify as to the applicable standard of care and that River Region’s employees had breached that standard in their treatment of McGee. Although the trial judge accepted Dr. Beare as an expert in the area of nursing, he subsequently ruled that McGee’s counsel had failed to establish that Dr. Beare was familiar with the applicable standard of care and, therefore, she could not render an opinion. After McGee’s counsel made a proffér of Dr. Beare’s testimony, counsel for River Region moved for a directed verdict, asserting that Dr. Beare was McGee’s sole expert who was to testify as to the applicable standard of care. The trial judge granted the motion, and McGee appeals.

¶ 7. On appeal, McGee argues that the trial court erred when it: (1) granted River Region’s motion for directed verdict by striking Dr. Beare’s testimony; (2) admitted “expert opinion testimony” from Nurse Cheryl Washington; (3) excluded proof of McGee’s total medical bills; and (4) overruled McGee’s Batson challenge. We will address issues one and three only. See Miss. R.App. P. 17(h).

ANALYSIS

I. Whether the trial judge erred when he granted River Region’s motion for directed verdict.

¶8. This Court reviews a trial judge’s grant dr denial of a motion for directed verdict de novo. Solanki v. Er-vin, 21 So.3d 552, 556 (Miss.2009). “A motion for directed verdict tests the legal sufficiency of the plaintiffs evidence.” Id. “This Court considers ‘whether the evidence, as applied to the elements of a party’s case, is either so indisputable, or so deficient, that the necessity of a trier of fact has. been obviated.’ ” Id. (quoting Spotlite Skating Rink, Inc. v. Barnes, 988 So.2d 364, 368 (Miss.2008)). “[T]he trial judge is to look solely to the testimony on behalf of the party against whom a directed verdict is requested.” Solanki, 21 So.3d at 556 (citations omitted). “He will take such testimony as true along with all reasonable inferences which can be drawn from that testimony which is favorable to that party, and, if it could support a verdict for that party, the directed verdict should not be given.” Id.

¶ 9. To establish a prima facie case of medical malpractice, the plaintiff must show that:

(1) the defendant had a duty to conform to a specific standard of conduct for the protection of others against an unreasonable risk of injury; (2) the defendant failed to conform to that required standard; (3) the defendant’s breach of duty was a proximate cause of the plaintiffs injury, and; (4) the plaintiff was injured as a result.

Delta Reg’l Med. Ctr. v. Venton, 964 So.2d 500, 504 (Miss.2007). The “ ‘general rule is that medical negligence may be established only by expert medical testimony, with an exception for instances where a layman can observe and understand the negligence as a matter of common sense and practical experience.’” Coleman v. Rice, 706 So.2d 696, 698 (Miss.1997) (citations omitted). “The success of a plaintiff in establishing a case of medical malpractice rests heavily on the shoulders of the plaintiffs selected medical expert. The expert must articulate an objective standard of care.” Estate of Northrop v. Hut-to, 9 So.3d 381, 384 (Miss.2009). “Not only must [an] expert identify and articulate the requisite standard that was not complied with, the expert must also establish that the failure was the proximate cause, or proximate contributing cause, of the alleged injuries.” McDonald v. Mem’l Hosp., 8 So.3d 175, 180 (Miss.2009) (quoting Barner v. Gorman, 605 So.2d 805, 809 (Miss.1992)).

¶ 10. McGee argues on appeal that the trial judge erroneously prohibited her expert, Dr. Beare, from rendering an opinion in this case. McGee reasons that, once the trial judge had accepted Dr. Beare as an expert in nursing care, she should have been allowed to render an opinion. River Region argues that the trial judge properly granted its motion for directed verdict, because McGee “failed to elicit testimony from [Dr.] Beare showing that she was familiar with the applicable standard of care.” After a careful review of the transcript, we find that the trial judge erroneously granted River Region’s motion for directed verdict.

¶ 11. McGee’s counsel attempted at several different points during his examination of Dr. Beare to elicit her knowledge of the applicable standard of care, only to be interrupted by repeated objections from counsel for River Region. The objections continued for much of Dr. Beare’s testimony, until the trial judge ruled that McGee’s counsel had “not laid, in [his] opinion, the proper predicate for [Dr. Beare] to render an opinion.”

¶ 12. River Region’s position seems to be, and the trial court apparently agreed, that Dr. Beare was required to articulate the standard of care before she could properly render an opinion as to whether the standard had been breached. During one objection, for example, counsel for River Region stated: “He [counsel for McGee] first has to lay the predicate for the standard of care before she [Dr. Beare] offers an opinion on the standard of care.”

¶ 13. This Court’s precedent requires that the expert “identify and articulate the requisite standard that was not complied with.” McDonald, 8 So.3d at 180. Dr. Beare was qualified and accepted as an expert. She testified more than once that she was familiar with the applicable standard of care. She should have been allowed to articulate her opinion as to whether that standard pf care had been breached. Often, an expert’s discussion of the applicable standard of care is intertwined with his or her discussion of whether a breach occurred. And viewing the evidence in the light most favorable to McGee, the proffer offered by McGee’s counsel indicated that Dr. Beare successfully would have articulated the standard of care for IV infiltrations and would have opined that River Region’s staff had breached that standard. Thus, we find that the trial judge erred when he prematurely struck Dr. Beare’s testimony and granted River Region’s motion for directed verdict.

¶ 14. River Region also argues that, even if the trial judge’s decision to exclude Dr. Beare’s testimony and grant its motion for directed verdict was erroneous, it was harmless error. River Region asserts that, as a nurse, Dr. Beare was not qualified to render an opinion as to medical causation. And because McGee’s other two experts were, according to River Region, not going to testify as to causation, the directed verdict in its favor was still proper.

¶ 15. The record before us contains no expert depositions and no proffer of any expert’s proposed testimony (other, than Dr. Beare’s). The record is insufficient for this Court to determine whether the erroneous striking of Dr. Beare’s testimony was harmless error and thus, we decline to engage in further analysis.

II. Whether the trial judge erred when he ruled that a portion of McGee’s total medical bills would be excluded from evidence.

¶ 16. Although we find the first issue dispositive, we also address McGee’s third issue concerning damages.

¶ 17. This Court reviews a trial judge’s decision to admit or exclude evidence under an abuse-of-discretion standard. Vaughn v. Miss. Baptist Med. Ctr., 20 So.3d 645, 654 (Miss.2009) (citations omitted). “ ‘Unless we can safely say that the trial court abused its judicial discretion in allowing or disallowing evidence so as to prejudice a party in a civil case ... we will affirm the trial court’s ruling.’ ” Id. (quoting Jones v. State, 918 So.2d 1220, 1223 (Miss.2005)).

¶ 18. Medicare paid a portion of McGee’s bills from Promise and River Region. Pursuant to their agreements as Medicare providers, both hospitals adjusted or “wrote off’ the balance of those bills. The trial judge ruled that McGee would be allowed to introduce into evidence the total bill from Promise, but only approximately $5,000 of the River Region bill (the amount Medicare paid to River Region). On appeal, McGee claims that the collateral-source rule allows her to introduce into evidence the entire amount of her medical bills from River Region, including those amounts “written off.” River Region argues that, because the amount it “wrote off’ was not actually incurred, it is irrelevant, and thus inadmissable evidence. In other words, it seeks to limit McGee’s recovery to the actual amount paid by Medicare, rather than the total cost of the medical services received by McGee. Thus, the question before this Court is whether an injured plaintiff may include in a claim for compensatory damages the amount “written off’ by a defendant health-care provider pursuant to its obligation as a Medicare provider.

¶ 19. McGee argues that the admission of medical bills “written off’ by medical providers was resolved by this Court in Purdon v. Locke, 807 So.2d 373 (Miss. 2001). There, the defendant doctor claimed that the plaintiff should not be allowed to introduce the amount “written off’ by Baptist Hospital as damages. Id. at 378: This Court quickly dismissed the argument, holding that, because “demands for payment were delivered to Locke and thus, incurred by him,” the jury was entitled to hear them. Id. The burden then became Purdon’s to show that the bills were not reasonable. Id. Purdon did not introduce any proper evidence to rebut the reasonableness of the bills, offering only inadmissible hearsay. Id. at 379.

¶ 20. In Brandon HMA, Inc. v. Bradshaw, 809 So.2d 611 (Miss.2001) — a case decided the same day as Purdon — Plaintiff Bradshaw alleged that negligent nursing care at Rankin Medical Center led to her permanent disability from brain damage. Id. at 613. After a trial, the jury awarded her $9,000,000 in damages. Id. Rankin Medical Center appealed, arguing, among other things, that the trial court erred when it allowed Bradshaw to admit the total amount of her medical bills, as opposed to the amount paid by Medicaid only. Id. This Court concluded that the trial court “did not err in admitting Bradshaw’s medical bills which exceed the amount paid by Medicaid,” noting that the hospital was attempting to collect those very same bills. Id. at 619-20. Thus in both Purdon and Brandon, this Court’s holdings were premised on the medical provider’s attempts to collect its bill and a finding that the plaintiffs had in fact “incurred” the bill.

¶ 21. In Wal-Mart Stores, Inc. v. Frier-son, 818 So.2d 1135 (Miss.2002), Plaintiff Frierson filed suit against Wal-Mart after he slipped and fell in the Indianola store. Id. at 1137. Prior to trial, Wal-Mart filed a motion in limine, seeking to prevent Fri-erson from introducing the amounts “written off’ by his medical providers under the Medicare/Medicaid regulations. Id. at 1138. The trial judge denied the motion, and the jury returned a verdict in favor of Frierson. Id. at 1137-38. On appeal, Wal-Mart argued that the trial court erred when it permitted Frierson to introduce evidence of his “written-off’ medical expenses, as that caused Frierson to “realize an impermissible profit and windfall in the action.” Id. at 1139. This Court affirmed, finding that the “rationale employed in Brandon HMA to Medicaid payments applies equally to Medicare payments,” and that it was not error to admit proof of the “written-off’ portions of the medical expenses. Id. at 1140.

¶ 22. We do not read these cases to establish a per se rule that “written-off’ medical expenses are admissible. From an evidentiary perspective, every case turns on its own facts and the purpose for which the evidence is offered. But we have said that jurors “have a right to know what services and/or goods were provided for the charges made. This can serve as an aid in their deliberations with respect to the seriousness and extent of the injuries complained of.” Jackson v. Brumfield, 458 So.2d 736, 737 (Miss.1984). Provided he or she can demonstrate relevance, a plaintiff should be allowed to present evidence of his or her total medical expenses, including those amounts “written off’ by medical providers.

¶23. But the question presented by McGee is one of both evidence and recoverable damages. Even though the total medical bills may be found to be relevant and admissible, we must consider the collateral-source rule in determining whether McGee can recover the “written-off’ amounts as damages. For decades, Mississippi has recognized the collateral-source rule, under which a “wrongdoer is not entitled to have the damages to which he is liable reduced by proving that plaintiff has received or will receive compensation or indemnity for the loss from a collateral source, wholly independent of him.” Coker v. Five-Two Taxi Service, Inc., 211 Miss. 820, 52,So.2d 356, 357 (1951) (citing 25 C.J.S., Damages, § 99) (emphasis added). In other words, “a tortfeasor cannot use the moneys of others (insurance companies, gratuitous gifts, etc.) to reduce the cost of its own wrongdoing.” Brandon HMA, Inc., 809 So.2d at 618.

¶ 24. Applying the rule to the facts of this case, we find that the collateral-source rule simply does not apply to the “written-off’ portion of the River Region bill. The rule, by its very language, applies only to prohibit the introduction of evidence of payments from collateral sources wholly independent of the tortfeasor. In this case, River Region, to whom the bill was owed, is also the alleged tortfeasor. River Region provided medical services, but was not paid by McGee, Medicare, or any other source for a large portion of those services. To accept McGee’s argument would require River Region to absorb the cost of the services rendered for which there was no reimbursement and then be potentially liable for those services again in damages. We therefore find that, although the entire medical bill may be relevant to aid the jury in assessing the seriousness and the extent of the injury, McGee may not recover as damages those amounts “written off’ by River Region.

CONCLUSION

¶ 25. We find that the trial judge erred when he granted River Region’s motion for a directed verdict. We find that the trial judge was correct when he determined that McGee could not recover from River Region those amounts which it had “written off.” But we also find that he erred in granting the motion in limine, to the extent that he held that McGee could not admit her entire River Region bill simply because she could not recover the entire amount. We therefore reverse this case and remand for a new trial.

¶ 26. REVERSED AND REMANDED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, CHANDLER AND PIERCE, JJ„ CONCUR. KITCHENS, J., CONCURS IN PART AND IN RESULT WITH SEPARATE WRITTEN OPINION. KING, J., NOT PARTICIPATING.

KITCHENS, Justice,

concurring in part and in result:

¶ 27. I write separately only to address the majority opinion’s analysis regarding whether the erroneous striking of Dr. Beare’s testimony was harmless error. Maj. Op. at ¶¶ 14-15. River Region argues that, even with Dr. Beare’s testimony, the plaintiffs could not establish causation, because Dr. Beare was not a medical doctor. For the reasons stated in my separate opinion in Vaughn v. Mississippi Baptist Medical Center, 20 So.3d 645, 656-57 (Miss.2009) (Kitchens, J., concurring in part and dissenting in part), I disagree that Dr. Beare was, as a matter of law, unqualified to render an opinion regarding medical causation simply because a doctor of medicine is not among her numerous academic degrees. For these reasons, I respectfully concur in part and in result.

      . Dr. Patricia Beare, one of McGee’s medicál experts, testified that an IV infiltration is "leakage of fluid from an IV into the patient’s tissues from an IV line.”

      . McGee's total bill at River Region was approximately $40,000. Medicare paid approximately $5,000, and River Region "wrote off" the remaining amount. McGee's total bill at Promise was approximately $71,000. Medicare paid approximately $23,000, and Promise "wrote off” the remaining amount.

      . Leroy Mitchell was appointed conservator of McGee's estate because of "advanced age, physical incapacity and her inability to read or write.” Mitchell and McGee are referred to collectively as "McGee.”

      . Julie Antley was one of McGee's nurses^ but was not working when the IV infiltration and the blisters occurred. The trial court ultimately granted summary judgment in her favor.

      . McGee later amended her complaint, adding Vicksburg Healthcare LLC as a defendant. According to River Region, it is a "d/b/a” of Vicksburg Healthcare.

      . Dr. Beare has a Ph.D. in philosophy from North Texas State. She has a Master’s Degree in nursing from the University of Texas and is a registered nurse in Louisiana and Texas. She is not a medical doctor.

      . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      . See Vaughn v. Miss. Baptist Med. Ctr., 20 So.3d 645, 652 (Miss.2009) ("We now explicitly hold that nurses cannot testify as to medical causation.”).

      . River Region does not argue that the amount paid by Medicare should be excluded.


author: LAMAR, Justice,

text:
    Shirley Jean COLLINS v. KOPPERS, INC. f/k/a Koppers Industries, Inc., Beazer East, Inc. f/k/a Beazer Material and Services, Hanson, PLC, Hanson Building Material Limited f/k/a Hanson, PLC, Hanson Holdings Limited, Hanson Holdings Basalt, Inc., Hanson Holdings Aragonite, Inc., HBMA Holding, Inc. and Three Rivers Management.
    No. 2009-CA-01678-SCT.
    Supreme Court of Mississippi.
    April 21, 2011.

      Hunter W. Lundy, Kristie M. Hightower, Jackson, Wilbur O. Colom, attorneys for appellant.
    Christopher A. Shapley, Robert L. Gibbs, William ‘Trey’ Jones, III, Joseph A. Sclafani, Reuben V. Anderson, Jackson, Jay Gore, III, Grenada, attorneys for ap-pellees.
    Before CARLSON, P.J., LAMAR and CHANDLER, JJ.
   LAMAR, Justice,

for the Court:

¶ 1. Shirley Collins filed suit against Koppers, Inc., and several other defendants, alleging that she was injured as a result of environmental contamination by a wood-treatment facility. The defendants filed a motion to dismiss after Collins repeatedly failed to comply with a court order to provide expert opinions that causally linked her injuries to the alleged contamination. The trial court granted the defendants’ motion to dismiss and awarded them attorneys’ fees. We find no abuse of discretion and affirm the trial court’s ruling.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 27, 2005, Rebekah Angle and multiple other plaintiffs (including Shirley Collins, the plaintiff in the present case) filed suit against several defendants, alleging injury from exposure to toxic chemicals allegedly emitted by a wood-treatment facility. The defendants filed a combined motion to sever and dismiss and for attorneys’ fees and sanctions, arguing that the claims were improperly joined. At the hearing on the motion, the trial judge randomly selected the names of several individual plaintiffs and asked plaintiffs’ counsel how those individuals had been damaged. Plaintiffs’ counsel was unable to inform the trial court as to how any of the individual plaintiffs had been injured by the defendants.

¶ 3. The trial judge found that the complaint did not “come anywhere close to providing the information that is required” by this Court’s decision in Harold’s Auto Parts v. Mangialardi, nor did it provide the “ ‘core information’ that would provide the defendants with any meaningful information as to how and when each plaintiff was damaged.” The trial judge also found that joinder was improper, stating “[hjere the only common factor is that each plaintiff claims that at some point in their lives, they were damaged in some way by the creosote plant and/or the railroad company. That is not enough to satisfy the joinder rules of this state.” The trial judge subsequently entered an order severing the plaintiffs’ claims and ordering them to file separate complaints that satisfied the pleading requirements of Mangia-lardi within thirty days. He further ordered the plaintiffs’ attorneys to pay the reasonable attorneys’ fees and costs of the defendants “as sanctions.”

¶ 4. On March 17, 2006, Shirley Collins refiled her complaint individually. Collins’s suit named as defendants Hoppers, Inc., Beazer East, Inc., Three Rivers Management (collectively referred to as the “defendants”) and Illinois Central Railroad Company. Collins claimed that she was “exposed to harmful substances emanating from the defendants’ wood-treatment facility located in Grenada County.” Collins claimed that she suffered from a heart condition, high blood pressure, dizziness, and diabetes as a result of exposure to the toxic chemicals released by the'facility.

¶ 5. The defendants filed another motion to dismiss, arguing that Collins had failed to provide the “core information” required by Mcmgialardi The defendants argued that — despite the trial court’s earlier direction that each plaintiff file an individual complaint that complied with Mangialar-di — Collins had filed a “boilerplate complaint nearly identical to the mass joinder complaint originally filed in [the] case.” The defendants also pointed out that Collins’s complaint failed to provide any information as to how and when she was injured, the dates of any diagnoses, the manner and'frequency of her alleged exposure, or the locations of any alleged exposure. Finally, the defendants noted that the trial court’s previous order warned that any complaint that failed to met the Mangialardi pleading requirements would be dismissed with prejudice.

¶ 6. After being so ordered by the trial judge, Collins responded to the motion, arguing that she had (in good faith) included specific information in her complaint, and that the defendants were well aware of her claims because of similar ongoing litigation. The trial judge denied the defendants’ motion to dismiss, finding that the complaint did “at least set out a claim upon which relief could be granted.” But he ordered Collins to provide a more definite statement detailing “the dates of the alleged exposure and manifestation of injuries, the manner of any such exposure, and which chemicals caused the alleged injuries .... ” Collins filed the additional information as ordered, and the defendants subsequently filed their answers.

¶ 7. On September 7, 2006, the defendants propounded discovery to Collins, requesting, among other things, information relating to the experts on whom she had relied in making her claims. Specifically, defendants’ Interrogatory No. 21 read:

Identify any expert witness(es) whom Plaintiff may have testify at a trial or hearing in this matter and state with respect to each such expert:
a. The subject matter on which the expert is expected to testify;
b. The facts and opinions to which each expert is expected to testify; and
c. The grounds for each opinion.

Collins responded that she had “not determined which experts will testify at the trial or at a hearing in this matter,” but that she would “supplement responses to Interrogatory No. 21 when a determination has been made.... ” Several months later, the defendants filed additional discovery requests, again seeking information about Collins’s expert witnesses. Collins again responded that “the request calls for an expert opinion and ... no determination has been made as to what expert witnesses will be called to testify....”

¶ 8. Illinois Central also propounded discovery requests to Collins. After the deadline had passed with no response, counsel for Illinois Central conferred with Collins’s counsel, and they agreed to a response date. A week after the agreed response date, Collins submitted responses to a set of interrogatories propounded by Illinois Central in a different lawsuit. Counsel for Illinois Central alerted Collins’s counsel of the mistake, and Collins’s counsel indicated that he was “working on” the correct responses. After several months with no response, Illinois Central filed a motion to compel, which the trial court granted. Whether Collins ever responded to Illinois Central’s discovery requests is disputed by the parties.

¶ 9. On September 7, 2008, the defendants filed a motion for expert disclosure, seeking an order requiring Collins to identify the basis, including all expert opinions, for the contention that a particular chemical could cause the medical conditions Collins alleged in her complaint and for the contention that the particular chemical had caused those specific medical conditions. On December 3, 2008, the trial court granted the defendants’ motion, noting:

In order to establish [her] claims, [Collins] must establish by expert testimony a causal connection between the illnesses and the exposure to chemicals from the wood treat [sic] plant. Rule 11 of the Mississippi Rules of Civil Procedure states that the signature on a pleading “constitutes a certificate that the attorney has read the pleading or motion; that to the best of the attorney’s knowledge, information, and belief there is good ground to support it.” Thus, this court is confident that [Collins] already has the information that the defendants are seeking and that it would not be unduly burdensome to provide it.

The trial judge ruled that, within thirty days from the date of the order, Collins was to:

1. Identify the basis, including all expert opinions, for the contention that a particular chemical can cause the specific medical conditions for which the [she] complains.
2. Identify the basis, including all expert opinions, for the contention that the particular chemical has actually in fact caused the specific medical conditions for which [she] complains.
3. Identify the basis, including all expert opinions, for establishing how [her] exposure to a specific chemical, both in manner and amount, was sufficient in fact to cause [her] specific medical conditions.
4. Respond fully and completely to Interrogatory 21 seeking expert disclosures and supplement all discovery requests seeking expert information.

¶ 10. On December 12, 2008, Collins filed a motion for relief from order, Requesting additional time to comply with the trial court’s order. The trial court denied Collins’s request for additional time, stating: “This court ... finds that the information that was ordered to be provided to the defendants is information that should have been in the possession of the plaintiff’s attorney prior to the filing of a complaint, and at the, very latest, when the plaintiff filed a more definite statement. ...” On the day of the trial court’s deadline, Collins served supplemental responses to the defendants’ discovery requests. But Collins’s responses made no reference to her specific injuries or to individual issues of causation. Rather, her responses merely detailed several expert’s opinions that were given in other, related litigation who “may be called to give testimony.”

¶ 11. On January 14, 2009, the defendants filed a motion to dismiss, or, in the alternative, for summary judgment, and for sanctions. The defendants argued that Collins had “defied” the court’s “clear and straightforward” direction to provide them with specific expert information linking the particular injuries claimed by Collins to exposure to chemicals from the wood-treatment facility. They ásked that the' trial court dismiss Collins’s complaint with prejudice under Mississippi Rule of Civil Procedure 41(b) for failure to comply with a court order. In the alternative, they asked the court to grant summary judgment under Mississippi Rule of Procedure 56 because Collins had failed to demonstrate that she could meet her evidentiary burden in the case, or that there was any genuine issue of material fact. Finally, the defendants asked the trial court to order Collins to pay their expenses and attorneys’ fees under Mississippi Rules of Civil Procedure 11 and 37. '

¶ 12. The trial judge entered a scheduling order and instructed Collins to reply to the defendants’ motion within ten days. Collins did not file a response, and the trial court granted the defendants’ motion, dismissing Collins’s complaint with prejudice. Several days later, Collins filed a motion to set aside summary judgment and for permission to file an out-of-time response, stating that she had never received the defendants’ motion or the trial court’s scheduling order. The trial court granted Collins’s motion and gave her an additional five days to respond. Eight days later, rather than responding, Collins’s counsel filed a motion to enter scheduling order. Five days after that, Collins responded to the defendants’ motion to dismiss.

¶ 13. In her response, Collins argued that her case should not be dismissed, because “[discovery is an ongoing process that requires a party to timely supplement .... [h]ere, discovery is not complete and none of the cases are set for trial.” Collins also argued that summary judgment was improper, because “[wjithout doubt, [Collins’s alleged medical conditions] are causally associated with the toxic exposure from Koppers and a well established correlation exists.” Collins cited an expert report detailing the health effects on nearby residents to support her contention (although the report made no reference to Collins individually).

¶ 14. The trial judge granted the defendants’ motion without a hearing. As to their Rule 41(b) dismissal argument, the trial judge noted: “In defiance of the order of this court, and now three years after acknowledging that expert testimony is necessary, [Collins] has never provided any information concerning the names or expected testimony of expert witnesses.” The trial judge concluded that dismissal with prejudice was appropriate, because of “the length of time this litigation has been ongoing and the fact that the plaintiff has failed to provide the information concerning expert witnesses, and has done very little to advance this litigation....”

¶ 15. The trial judge also found that the defendants were entitled to summary judgment, because Collins had “presented no medical or scientific evidence that would prove the requisite elements of her claims.” The trial judge noted that the only evidence Collins had offered was “a list of her alleged illnesses and an academic paper compiled by several authors published in 2003 .... [that] outlines some of the health effects associated with exposure to the harmful chemicals that are utilized within a wood treatment plant similar to the Grenada facility.”

¶ 16. Finally, the trial judge found that the defendants were entitled to attorneys’ fees and costs under Mississippi Rules of Civil Procedure 11 and 37, as well as the Litigation Accountability Act of 1988, which the court raised on its own motion. Although the trial judge found no evidence that Collins’s complaint was vexatious, or that it was filed for the purpose of harassment or delay, he did find that her complaint was “frivolous and groundless in fact.” He ordered that Collins and all her attorneys who either had entered an appearance or had attached their names to any pleadings were jointly and severally liable and must pay $3,677.50 to Illinois Central, and $7,086.43 to the other defendants. The trial judge noted that, “[i]f sanctions are not appropriate and justified in this case, then this court can conceive of no circumstances under which sanctions would ever be warranted.” Collins filed a motion to reconsider and/or clarify judgment, which the trial court denied, and she appeals.

¶ 17. On appeal, Collins asserts several arguments, which we restate for clarity:

(1) Whether the trial court abused its discretion when it dismissed Collins’s complaint with prejudice under Rule 41(b);
(2) Whether the trial court erred when it granted the defendants’ motion for summary judgment as to all Collins’s claims, without a hearing; and
(3) Whether the trial court abused its discretion when it ordered Collins and her attorneys — some of whom were not “active” in the proceedings — to pay defendants’ attorneys’ fees and costs.

We find no abuse of discretion in the trial court’s dismissal of Collins’s complaint with prejudice under Rule 41(b), making issue two moot. We also find no abuse of discretion in his award of attorneys’ fees and therefore affirm the judgment.

ANALYSIS

(1) Rule 41(b) Dismissal

¶ 18. Mississippi. Rule of Civil Procedure 41(b) allows for the involuntary dismissal of a case in certain situations:

For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.

M.R.C.P. 41(b) (emphasis added). This Court reviews Rule 41(b) dismissals for an abuse of discretion. Wallace v. Jones, 572 So.2d 371, 375 (Miss.1990) (citations omitted). Rule 41(b) is concerned with “those orders that are necessary for preparation of trial litigation as well as the trial itself and its procedure insofar as it relates to the rules of civil procedure.” Id. at 377.

¶ 19. This Court has said that “dismissal for failure to comply with an order of the [trial] court is appropriate only where there is a clear record of delay or contumacious conduct and lesser sanctions would not serve the best interests of justice.” Id. at 376 (citations omitted). If the record does not reflect that the trial court considered alternative- sanctions, a Rule 41(b) dismissal is “less likely to be affirmed.” Wilson v. Nance, 4 So.3d 336, 343 (Miss.2009) (citation omitted). In addition to a clear record of delay and inadequacy of lesser sanctions, this Court has noted that “Rule 41(b) dismissals are often affirmed in cases where there is at least one ‘aggravating factor’ present.” Id. at 341. “Aggravating factors” include the plaintiffs (as opposed to her attorney’s) responsibility for the delay, actual prejudice to the defendant, or the fact that intentional conduct caused the delay. Id. at 344.

¶ 20. Collins argues that dismissal was improper because the record does not reflect delay or contumacious conduct, the trial judge did not consider lesser sanctions, and no aggravating factors are present. The defendants argue that Collins never raised these arguments before the trial court, and she is therefore procedurally barred from raising them before this Court. We agree that Collins is procedurally barred from arguing these issues before this Court. See Southern v. Mississippi State Hosp., 853 So.2d 1212, 1214-15 (Miss.2003) (“Á trial judge cannot be put in error on a matter not presented to him. This Court repeatedly has held that issues not raised at trial cannot be raised on appeal.”) (citations omitted). Procedural bar notwithstanding, we find no abuse of discretion in the trial court’s dismissal of Collins’s complaint with prejudice.

Delay or Contumacious Conduct

¶ 21. A careful review of the record reflects a clear pattern of delay by Collins and her attorneys. After Collins filed her complaint in March 2006 — and was ordered to file a more definite statement — the defendants attempted on several occasions to ascertain the basis for her claim that her injuries were caused by the wood-treatment plant. When Collins refused to respond to the defendants’ discovery requests in any meaningful manner, they filed a motion for expert disclosure. The trial court granted the motion and specifically ordered Collins to provide the defendants with information about the expert witnesses who could establish a causal connection between her injuries and the alleged exposure to toxic chemicals. Collins filed a motion for relief from order, and when that was denied, served supplemental responses on the defendants that merely reiterated several expert’s opinions from other litigation. Collins has, for more than three years, refused to provide the defendants with any meaningful expert-witness information. We find that a clear record of delay exists in this case.

Lesser Sanctions

¶ 22. The record does not indicate that the trial judge considered lesser sanctions in this case. But that fact alone does not require reversal. Although this Court has stated that it is “less likely” to affirm a Rule 41(b) dismissal if the record does not reflect that the trial court considered lesser sanctions, it is clear that the ultimate decision lies with this Court. See, e.g., Wilson, 4 So.3d at 341 (“this Court must determine ... whether lesser sanctions could have served the best interests of justice ... ”) (emphasis added); Cox v. Cox, 976 So.2d 869, 876 (Miss.2008) (“We also find that lesser sanctions would not suffice under these circumstances because lesser sanctions could not cure the prejudice ... caused by the delay.”) (emphasis added). ' We find that lesser sanctions would not have “served the best interests of justice” in this case. Wallace, 572 So.2d at 376. The record indicates Collins’s continued refusal to provide the expert information sought by the defendants, as well as her defiance of the trial court’s direct order to provide it, and we find .that lesser sanctions would not suffice.

Aggravating Factors

¶ 23. Finally, the record evidences that intentional conduct caused delay in the proceedings. The defendants’ discovery requests have been pending since 2006. Collins repeatedly has referred to the opinions of experts from other, related litigation in several of her pleadings, yet she has failed to this day to produce any expert evidence specific to her claims. She has made no attempt to explain why she has been unable to obtain any expert information that pertains specifically to her claims. We find that Collins purposely has delayed this litigation.

¶ 24. It is obvious that the trial judge exercised considerable patience and restraint in dealing with the delays caused by Collins’s counsel. The record is replete with instances of the failure of Collins’s counsel to abide by the orders of the trial court. We take this opportunity to remind the bar of what this Court previously has stated on this point:

Our trial judges are afforded considerable discretion in managing the pre-trial discovery process in their courts, including the entry of scheduling orders setting out various deadlines to assure orderly pre-trial preparation resulting in timely disposition of the cases. Our trial judges also have a right to expect compliance with their orders, and when parties and/or attorneys fail to adhere to the provisions of these orders, they should be prepared to do so at their own peril.

Bowie v. Montfort Jones Mem’l Hosp., 861 So.2d 1037, 1042 (Miss.2003).

¶ 25. We find no abuse of discretion in the trial court’s Rule 41(b) dismissal of Collins’s claims, as there is a clear record of delay, lesser sanctions would not have sufficed, and there is evidence of intentional conduct. We therefore affirm the trial court’s dismissal of Collins’s complaint with prejudice, making the issue of summary judgment moot.

(2) Sanctions

¶ 26. Mississippi Rule of Civil Procedure 11(b) states, in pertinent part:

If any party files a motion or pleading which, in the opinion of the court, is frivolous or is filed for the purpose of harassment or delay, the court may order such a party, or his, attorney, or both, to pay to the opposing party or parties the reasonable expenses incurred by such other parties and by their attorneys, including reasonable attorneys’ fees.

M.R.C.P. 11(b) (emphasis added). And Mississippi Code Section 11-55-5(1) (part of the “Litigation Accountability Act”) states, in pertinent part:

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 attorney’s fees and costs against any party or attorney if the court, upon the motion of any party or on its own motion, finds that an attorney or party brought an action, or asserted any claim or defense, that is without substantial justification ....

Miss.Code Ann. § 11-55-5(1) (Rev.2002) (emphasis added). The phrase “without substantial justification” means a filing that is “frivolous, groundless in fact or in law, or vexatious, as determined by the court.” Miss.Code Ann. § ll-55-3(a) (Rev.2002) (emphasis added). When a court determines that fees shall be assessed, “it shall - assess the payment against the offending attorneys or parties, or both, and in its discretion may allocate the payment among them, as it determines most just, and may assess the full amount or any portion to any offending attorney or party.” Miss.Code Ann. § 11-55-5(3).

¶ 27. This Court reviews a trial judge’s award of sanctions under Rule 11 and the Litigation Accountability Act for abuse of discretion. In Re Spencer, 985 So.2d 330, 336-37 (Miss.2008). “‘In the absence of a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors, the judgment' of the court’s imposition of sanctions will be affirmed.’ ” Id. at 337 (citations omitted).

¶ 28. Collins argues that her complaint was not “frivolous,” and that the award of attorneys’ fees is therefore improper. She also argues that, in the alternative, the trial judge abused his discretion by not ordering reduced fees. Finally, she argues that the trial judge abused his discretion when he held attorneys who were not “active” in the litigation jointly and severally hable. We find no abuse of discretion and affirm the award.

Whether Collins’s complaint was frivolous.

¶ 29. A pleading or motion is “frivolous” when the pleader or movant has “no hope of success.” Tricon Metals & Sens., Inc. v. Tapp, 537 So.2d 1331, 1335 (Miss.1989). But “[a] plaintiffs belief alone will not garner a ‘hope of success’ where a claim has no basis in fact.” Foster v. Ross, 804 So.2d 1018, 1024 (Miss. 2002) (emphasis added).

¶ 30. In his order granting sanctions, the trial judge noted that Collins’s case was very similar to the situation in Foster v. Ross. There, a nephew filed suit against his uncle in an estate action, claiming that his uncle had exerted undue influence over his grandmother. Id. at 1019. But the nephew offered no proof at trial to support his allegation of undue influence. Id. at 1021. The trial judge awarded sanctions, finding that “because there was a total lack of evidence to support the claim of a confidential relationship ... [the nephew] had no hope of success in pursuing the action.” Id. This Court affirmed the judgment. Id. at 1025.

¶31. Similarly, the trial judge here found that Collins had “presented not one scintilla of proof in support of the allegations contained in her complaint. Because there are no facts to support her claims, Collins had absolutely no chance of success in this action.” The trial judge went on to note specifically the eleven factors to be considered under the Litigation Accountability Act when determining whether to order sanctions. After setting out several factual findings, the trial judge concluded:

In summary, the plaintiff filed a complaint that improperly joined her claims with the claims of ninety-four (94) other plaintiffs. The separate complaint that was filed was so vague that the defendants could not file a response without first obtaining additional information from the plaintiff. The plaintiff sued several defendants that played no role in the operation of the wood treatment facility. Despite an order from this court to respond to discovery, the plaintiff failed to respond to the defendants’ request for discovery concerning expert witnesses. The plaintiff, prior to the filing of her complaint, never had a medical expert or an expert in any field advise her that the injuries, illnesses, or property damage from which she claims to suffer, were caused by the conduct of the defendants. Finally, the plaintiff has presented no proof of any kind to this court, to support her contention that she was injured by the defendants. Given all these factors, sanctions under both Rule 11 and the Litigation Accountability Act are appropriate and, in fact, well justified. Her complaint is frivolous and unsupported by any facts. If sanctions are not appropriate and justified in this case, then this court can conceive of no circumstances under which sanctions would ever be warranted.

We agree with the trial judge. We find that he properly considered all the required factors and that he did not abuse his discretion when he found that Collins’s complaint was frivolous.

Whether the attorneys’ fees were reasonable.

¶ 32. In Maude v. Columbus Hotel Co., 741 So.2d 259 (Miss.1999), this Court stated that “the reasonableness of an attorney’s fee award is determined by reference to the factors set forth in Rule 1.5 of the Mississippi Rules of Professional Conduct.” Id. at 269. The factors are:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.[]

Id. This Court noted that, in addition to these factors, the Legislature instructs the trial court to “make the award based on the information already before it and the court’s own opinion based on experience and observation....” Id. at 270 (quoting Miss.Code Ann. § 9-1-41 (Rev.2002)).

¶ 38. In BellSouth Personal Communications, LLC v. Board of Supervisors, 912 So.2d 486 (Miss.2005), this Court cited with approval the United States Supreme Court’s “lodestar” method of calculating attorneys’ fees:

The United States Supreme Court adopted the “lodestar” method of calculating reasonable attorney fees. In calculating the “lodestar” fee, [t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation, multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer’s services....

Id. at 446-47. Thus, a trial judge is to “[determine] a reasonable fee, based on the number of hours reasonably expended on the litigation, multiplied by a reasonable hourly rate,” and consider the eight factors enumerated in Rule 1.5 of the Mississippi Rules of Professional Conduct. In Re Estate of Gillies, 830 So.2d 640, 646 (Miss.2002).

¶ 34. Collins argues that the defendants’ decision to calculate their fees on a pro rata basis was improper. She also argues that the affidavits submitted by the defendants’ attorneys were “inadequate for the trial court to determine reasonableness.” We disagree.

¶ 35. The trial judge began his discussion of the reasonableness of the defendants’ attorneys’ fees by noting that his analysis was to be guided by the McKee factors (the Rule 1.5 factors, see supra note 9 ). The judge noted that “[t]his litigation has been ongoing for over four years, requiring several hearings, and the pleadings are voluminous.” After considering those factors, “[the] court’s knowledge of what is charged for legal services in the area, and all other [McKee] factors,” the trial judge found that the amount of attorneys’ fees submitted by the defendants was reasonable.

¶ 36. We find that the trial judge did not abuse his discretion when he found that the submitted attorneys’ fees were reasonable. Collins cites no authority for her proposition that the defendants’ attorneys were required to submit their actual billing statements, nor does she cite any authority for her proposition that the defendants’ attorneys’ pro rata method of calculation was improper. After reviewing the trial judge’s order, we find that he applied the correct method in determining the reasonableness of the submitted fees, and that an award of approximately $10,000 in attorneys’ fees for almost four years of litigation was not an abuse of his discretion.

Whether the trial judge improperly sanctioned “non-active” attorneys.

¶ 37. Finally, Collins argues that the trial judge abused his discretion when he ordered that several “non-active” attorneys were jointly and severally liable for the attorneys’ fees. We disagree. Collins cites absolutely no authority to support her position except for a portion of the Litigation Accountability Act which states that the court “shall assess the payment against the offending attorneys or parties, or both.” Miss.Code Ann. § 11-55-5(3) (Rev.2002). We find that the trial judge did not abuse his discretion, as his order makes clear that only those attorneys who had made an entry of appearance or attached their names to any pleadings, i.e., the “offending attorneys,” would be affected.

CONCLUSION

¶ 38. We find no abuse of discretion in the trial judge’s decision to grant a dismissal with prejudice under Rule 41(b), making the summary judgment issue moot. We also find no abuse of discretion in the trial judge’s sanction award and therefore affirm the judgment.

¶ 39. AFFIRMED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. KING, J., NOT PARTICIPATING.

      . Harold’s Auto Parts v. Mangialardi, 889 So.2d 493 (Miss.2004) ("Complaints should not be filed in matters where plaintiffs intend to find out in discovery whether or not, and against whom, they have a cause of action. Absent exigent circumstances, plaintiffs' counsel should not file a complaint until sufficient information is obtained, and plaintiffs’ counsel believes in good faith that each plaintiff has an appropriate cause of action to assert against a defendant in the jurisdiction where the complaint is to be filed. To do otherwise is an abuse of the system, and is sanctionable.”).

      .These three defendants were represented by the same counsel, although Illinois Central joined in all relevant pleadings. Koppers, Inc., owns the wood-treatment plant, and Illinois Central is one of its primary customers. Beazer East, Inc., is a former owner of the plant that is involved in environmental cleanup at the facility, which is being performed by Three Rivers Management, Inc. Collins also named several foreign companies as defendants, but they were dismissed with prejudice for lack of in personam jurisdiction.

      . After the filing of this appeal, Collins filed a motion to dismiss the appeal as to Illinois Central, which this Court granted. The motion stated that the parties had agreed to terminate the litigation and that Collins no longer desired to prosecute the appeal against Illinois Central. Thus, we do not analyze Collins’s arguments as to Illinois Central.

      . Collins specifically referred to Beck v. Kop-pers, Inc., No. 3:03CV-60-P-D (N.D.Miss.) (a similar case filed in the Northern District of Mississippi in 2003).

      . Collins listed the dates of her residence in Grenada, the dates of the diagnoses of her various ailments, and chemicals that allegedly caused her injuries.

      . Collins's counsel also was representing several of the other plaintiffs who had individually filed after being dismissed from the Angle case.

      . "Alternative sanctions" include " ‘fines, costs, or damages against plaintiff or his counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice, and explicit warnings.’ ” Wilson, 4 So.3d at 343 (citations omitted).

      . See Miss.Code Ann. § 11-55-7 (Rev.2002).

      . These factors are also known as the "McKee factors." See BellSouth, 912 So.2d 436, 446 (Miss.2005) (the factors were laid out for the first time by this Court in McKee v. McKee, 418 So.2d 764, 767 (Miss.1982)).

      . The Angle plaintiffs were ordered to file separate actions in 104 cases. Eighteen of those actions were similarly situated and involved the same attorneys, of which seventeen have been stayed to await the outcome of this appeal. Thus, the defendants’ attorneys calculated their fees in the Collins matter as follows: 18/104 (these eighteen cases involve seventeen percent of the Angle litigation as a whole). That amount was divided by eighteen to arrive at the cost per case.

      .The defendants’ attorneys submitted affidavits listing the total hours worked and the total amount billed for the eighteen cases, from which their hourly rate can be calculated. See supra note 10. One-eighteenth of this amount was assessed as fees and costs for Collins’s case.