author: SAUNDERS, Judge.

text:
    Judy CROOKS v. SOUTHWEST LOUISIANA HOSPITAL ASSOC, d/b/a Lake Charles Memorial Hospital.
    No. 12-157.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 8, 2012.

      Erin McCall Alley, Baggett, McCall & Burgess, Lake Charles, LA, for Plaintiff/Appellee, Judy Crooks.
    Adrien G. Busekist, Watson, Blanche, Wilson & Posn, Baton Rouge, LA, for Defendants/Appellants, Southwest Louisiana Hospital Assoc., Lake Charles Memorial Hospital, Southwest Louisiana Hospital Assoc.
    Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and PHYLLIS M. KEATY, Judges.
   SAUNDERS, Judge.

| ¡This is a personal injury case wherein the plaintiff contends that she suffered damages from a fall through a defective sofa bed at Lake Charles Memorial Hospital on December 21, 2002. The Defendant contends that the Plaintiff failed to carry her burden to prove that this accident occurred or, alternatively, that she was actually injured by falling through the sofa bed.

A jury trial was conducted. Prior to submitting the case to the jury, the trial judge granted a directed verdict, leaving the jury to award damages. After the jury awarded damages, the trial judge granted the plaintiffs motion for a judgment notwithstanding the verdict and increased the amount awarded to the plaintiff.

Defendants appeal. We reverse the trial judge’s directed verdict, find the record before us to be complete, conduct a de novo review of the record, and render judgment in favor of the plaintiff.

FACTS AND PROCEDURAL HISTORY:

On December 21, 2002, Judy Crooks (Crooks) was visiting her grandson, Shannon, at Lake Charles Memorial Hospital (LCMH) where he had been admitted to the pediatric ward. Mrs. Crooks alleges that she was injured when she fell through the mattress and frame of a foldout sofa bed in Shannon’s hospital room. Shannon’s mother, Cheranne Johnson, witnessed the alleged accident.

According to Crooks, she fell through the sofa bed because several springs were missing along the foot of the sofa bed. The purpose of these springs is to connect the underlying tarp to the frame. She contends that after being unfolded, the mattress laid across the frame and appeared to be properly supported, as it was held in place by a velcro strap. However, without the springs to hold the tarp to the frame, the velcro strap did not support her when she sat down. Thus, she fell through the sofa bed onto the ground and was injured.

| gAfter she fell through the sofa bed, Crooks reported the problem with the sofa bed to a nurse on duty who came into the room to see about Shannon. However, despite advising the nursing staff, no hospital personnel removed the sofa bed from the room during their stay. When Crooks left the hospital the next day, Crooks pushed the mattress outside the door to remind the hospital staff that the sofa bed was broken.

Crooks contends that she sustained injuries to her back in the fall through the sofa bed that ultimately required surgery. She brought a claim against LCMH alleging liability pursuant to La.Civ.Code art. 2317.1. A trial was held the week of May 16, 2011, which resulted in the trial court granting a directed verdict on the issues of liability, causation, and comparative fault. Thereafter, the matter was submitted to the jury and the jury awarded $115,000.00 in past medical expenses but awarded no other damages. The trial court then granted Crooks’ motion for judgment notwithstanding the verdict and reduced the jury’s award of $115,000.00 to $70,000.00, awarded $12,000.00 in future medical expenses, $150,000.00 in past, present, and future physical pain and suffering, $15,000.00 in past, present, and future mental pain and anguish, and $30,000.00 in past, present, and future loss of enjoyment of life. Both Crooks and LCMH raised assignments of error on appeal.

LCMIl’S ASSIGNMENTS OF ERROR:

1. The trial court erred in granting directed verdicts as to the issues of liability, causation, and comparative fault.
2. The trial court erred in granting a judgment notwithstanding the verdict as to the issue of damages.
3. The trial court erred in failing to grant LCMH’s motion for new trial.
4. The trial court erred in failing to exclude the expert testimony of Michael Frenzel as to causation of the alleged injury.
|s5. The trial court erred in excluding numerous excerpts of the deposition testimony of Cheranne Johnson/failing to admit the entirety of Cher-anne Johnson’s deposition testimony.

CROOKS’ASSIGNMENT OF ERROR:

1. The trial court erred in reducing the award for past medical expenses.

ASSIGNMENT OF ERROR LCMH NUMBER ONE:

LCMH contends in its first assignment of error that the trial court erred in granting directed verdicts as to the issues of liability, causation, and comparative fault. We find merit to this contention.

Louisiana Code of Civil Procedure Article 1810 states:

A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict that is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.

This court, in Hebert v. BellSouth Telecommunications, Inc., 01-223, pp. 4-5 (La.App. 3 Cir. 6/6/01), 787 So.2d 614, 617, writ denied, 01-1943 (La.10/26/01), 799 So.2d 1145, stated the following:

The applicable standard of review for [a motion for directed verdict] is found in Busby v. St. Paul Insurance Co., 95-2128, pp. 16-17 (La.App. 1 Cir. 5/10/96); 673 So.2d 320, 331, writ denied, 96-1519 (La.9/20/96); 679 So.2d 443, which states:
A trial court has much discretion in determining whether or not to grant a motion for directed verdict. New Orleans Property Development, Ltd. v. Aetna Casualty and Surety Company, 93-0692 (La.App. 1st Cir. 4/8/94); 642 So.2d 1312, 1315; Belle Pass Terminal, Inc. v. Jolin, Inc., 92-1544 and 92-1545 (La.App. 1st Cir. 3/11/94); 634 So.2d 466, 478, writ denied, 94-0906 (La.6/17/94); 638 So.2d 1094; Barnes v. Thames, 578 So.2d 1155, 1162 (La.App. 1st Cir.), writ denied, 577 So.2d 1009 (La.1991). A motion for directed verdict is appropriately Lgranted in a jury trial when, after considering all evidentiary inferences in the light most favorable to the mov-ant’s opponent, it is clear that the facts and inferences are so overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict. New Orleans Property Development, Ltd., 642 So.2d at 1315; Belle Pass Terminal, Inc., 634 So.2d at 478; Barnes, 578 So.2d at 1162. However, if there is substantial evidence opposed to the motion, that is, evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might reach different conclusions, the motion should be denied, and the case submitted to the jury. New Orleans Property Development, Ltd., 642 So.2d at 1315; Belle Pass Terminal, Inc., 634 So.2d at 478.
On appeal, the standard of review for directed verdicts is whether, viewing the evidence submitted, the appellate court concludes that reasonable people could not reach a contrary verdict. New Orleans Property Development, Ltd., 642 So.2d at 1315; Belle Pass Terminal, Inc., 634 So.2d at 478. Furthermore, the propriety of a directed verdict must be evaluated in light of the substantive law underpinning the plaintiffs claims. New Orleans Property Development, Ltd., 642 So.2d at 1315; Belle Pass Terminal, Inc., 634 So.2d at 478.

In the case before us, the trial court granted Crooks’ motion for directed verdict as to the issues of liability, causation, and comparative fault. Crooks’ cause of action against the Defendants is based on La.Civ.Code art. 2317.1. A requirement to recover under this article is that Crooks must first prove that the incident causing her harm actually occurred.

Crooks and Johnson testified that Crooks fell through the sofa bed and onto the floor. However, LCMH called two nurses who were on duty during the time of Crooks’ alleged incident, Ms. Shay Matt and Ms. Rika Amentor. They testified: (1) that no patient or patient’s visitor reported a fall through a sofa bed on the night of December 21, 2002, or the following morning; (2) that if someone had reported such an unusual fall, it would have been remembered, and (3) that if such a fall had been reported, they would have written an incident report, referred the person to | fithe emergency room, and contacted maintenance to have the sofa bed removed from the room.

Moreover, LCMH has two witnesses testify that each looked at the sofa bed after Crooks reported the incident. Both stated that upon inspection of the sofa bed, that they did not observe any springs missing, nor could they see how this alleged incident could have transpired.

In viewing the evidence in a light most favorable to the nonmoving parties, i.e. LCMH, the testimonies of Matt and Amentor provide a basis for a reasonable and fair-minded juror, in the exercise of impartial judgment, to possibly reach a different conclusion than that an incident occurred. Both nurses on duty the night in question had no recollection of an incident transpiring and both claim that had such an incident occurred, they would remember. Further, there was no written incident report, Crooks was not referred to the emergency room, and there was no record of maintenance removing the sofa bed from the room. Accordingly, given the applicable standard of review, the trial court’s granting of a motion for directed verdict in favor of Crooks as to the issues of liability, causation, and comparative fault was in error. As such, we reverse the judgment of the trial court in its entirety.

ASSIGNMENTS OF ERROR LCMH NUMBERS TWO THROUGH FIVE; ASSIGNMENT OF ERROR CROOKS:

Our finding in Assignment of Error Number One pretermits the LCMH’s remaining assignments of error as well as Crooks’ lone assignment of error. Crooks was not entitled to a directed verdict on the issues of liability, causation, and comparative fault. Thus, a determination of whether the trial court property granted a judgment notwithstanding the verdict on the issue of damages, or whether the trial court should have granted the LCMH’s motion for a new trial, or whether the trial court erred in reducing the award for past medical expenses is | ^unnecessary. LCMH, in assignment of error number one prayed for this court to conduct a de novo review of the record should we find that the trial court erred in granting directed verdicts. We have found it had. Thus, our next step is to determine whether to remand the case for further proceedings or to conduct a de novo review of the record as prayed for my LCMH.

Remand or Review:

“The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.” La.Code Civ.P. art. 2164. The Louisiana Supreme Court, in Gonzales v. Xerox Corp., 254 La.182, 320 So.2d 163, 165-66 (1975) (citations and footnote omitted), stated the following:

While the trial court remains the original forum for resolving factual and legal issues, the Louisiana Constitution expressly extends the jurisdiction of appellate courts in civil cases to the review of facts as well as law....
In addition to the constitutional authority, and consistent with it, there is a very practical consideration which encourages our appellate courts to exercise their jurisdiction to review factual findings: judicial economy. When the entire record is before the appellate court, remand for a new trial produces delay of the final outcome and congestion of crowded dockets while adding little to the judicial determination process. Although the appellate court does not gain the benefit of personally viewing the witnesses, it does have a complete record and the constitutional authority to decide.

In the case before us, neither Crooks nor LCMH contend that any relevant evidence is outstanding. Further, neither suggests that the record before this court is incomplete. Accordingly, in the interest of judicial efficiency, we will grant LCMH’s prayer that this court conduct a de novo review of the record and fully adjudicate this matter.

DISCUSSION OF THE MERITS:

Crooks’ action against LCMH is under La.Civ.Code art. 2317.1. According to Crooks, LCMH failed to provide a safe environment in the hospital, failed to 17maintain the sofa bed in a safe condition, failed to inspect the sofa bed, and failed to warn her of the unsafe condition when it knew or should have known of the unsafe condition of the sofa bed.

Louisiana Civil Code Article 2317.1 states:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

This court, in Riggs v. Opelousas General Hospital Trust Authority, 08-591, p. 4 (La.App. 3 Cir. 11/5/08), 997 So.2d 814, 817 stated that in order to prevail under La. Civ.Code art. 2317.1, a plaintiff must prove:

(1) that the thing which caused the damage was in the defendant’s custody or control, (2) that it had a vice or defect that presented an unreasonable risk of harm, (3) that the defendant knew or should have known of the vice or defect, (4) that the damage could have been prevented by the exercise of reasonable care, and (5) that the defendant failed to exercise such reasonable care. If the plaintiff fails to provide proof any one of these elements, his/her claim fails.

Prerequisite Fact Finding — Did an accident occur?

Before this court can conduct any analysis under La.Civ.Code art. 2317.1, we must first determine facts surrounding this alleged incident. Crooks, first, has the burden to prove that an accident occurred. Crooks testified that on December 21, 2002, while she was visiting her grandchild in the hospital, she sat on the end of the sofa bed provided by the hospital for patient’s visitors to use. According to Crooks, when she sat on the sofa bed, she fell through the bed and to the ground. Upon inspecting the bed, Crooks discovered that the springs that would support a person sitting on the end of the sofa bed were missing. Crooks testified that she 18notified the hospital’s staff of the incident. Crooks’ testimony is corroborated by the only eye witness to the accident, her daughter, Cheranne Johnson.

The only evidence in the record that tends to show that no accident occurred is the testimony of nurses Matt and Amen-tor, who have no independent recollection of such an incident being reported on December 21, 2002. It is clear from the record that Crooks and Johnson’s mother/daughter relationship, at some point after the alleged incident, became acrimonious. However, despite the deterioration of their relationship, Johnson has remained consistent in her recollection of the incident where Crooks fell through the sofa bed in the hospital.

The testimony of Crooks and Johnson is direct evidence on the facts surrounding the alleged accident. They claim to have seen the accident or have been in the accident. Crooks also testified that she told the nurse on duty of the incident and placed the mattress outside the room to remind the staff of the sofa bed’s unfitness. Conversely, the testimony of nurses Matt and Amentor is indirect. They simply have no recollection of this event being reported. The probative weight of this conflicting evidence is in favor of an accident occurring.

Moreover, as will be discussed below, we find as fact that the springs were missing from the sofa bed on December 21, 2002. The very purpose of these springs was to support a person sitting on the sofa bed. Thus, this fact is supportive of the contention that Crooks fell through the sofa bed.

Finally, the medical records from Crooks’ treatment show that she endured an accident that injured her on or about the alleged date. Four different doctors testified that Crooks was indeed injured on or about the alleged date of the accident. Further, these doctors also testified as to Crooks’ character in a positive manner. This evidence tends to show that Crooks experienced at least some accident around the alleged date of this incident.

|3Given the evidence in the record, we find that Crooks has carried her burden to prove that an accident occurred on December 21, 2002, wherein she fell through the sofa bed provided by LCMH.

Prerequisite Fact Finding — Were the springs missing?

We next analyze the issue of whether the springs were missing at the foot of sofa bed as claimed by Crooks. Again, Crooks has the burden to prove this fact.

Both Crooks and Johnson contend that they looked at the sofa bed and noticed that the springs that hold the supporting tarp for the sofa bed were missing. This contention is not truly contested in the record, as the Defendants did not inspect the sofa bed until well after the alleged incident. In that inspection, it was discovered that the sofa bed did, in fact, have springs at the foot of the bed holding the support for the mattress. However, according to the testimony of Michael Fren-zel, an expert put forth by Crooks, those springs were clearly shiny, new springs not consistent with the rest of the innards of the sofa bed that has rusted over years of use.

It is clear to this court from our inspection of the photographic evidence in the record that the springs on the sofa bed were as described by Frenzel, shiny and new, in comparison to the rest of support system used by the sofa bed. This distinction is dramatic. The springs at the foot of the bed are silver, shiny, and new. The remainder of the innards of the sofa bed are brown, rusted, and old.

Further, Mr. Frenzel testified to the following regarding whether the springs were on the bed at the time of the accident:

Q. Is there any evidence in all of the material you’ve seen that suggests that there were springs on the bed at the time?
A. No. There are wear patterns, you know. There are some other things we could look at that would suggest that these springs were — the silver springs — the silver springs were not there or were not original |into the bed and not there on the night or afternoon of [December 21, 2002.]

Therefore, we find that on December 21, 2002, when Crooks sat on the sofa bed in her grandchild’s hospital room, she fell through the bed due to failure of the support system upholding the mattress. The failure of the support system was due to missing springs used to hold up the support of the mattress.

Analysis — Part I:

There is no dispute that the sofa bed “was in the defendant’s custody or control.” The sofa bed was at all relevant times in LCMH. Thus, clearly Crooks has met her burden to prove this requirement.

Analysis — Part IP.

It is clear that the sofa bed had a vice or defect that presented an unreasonable risk of harm. The lack of springs to support one using a sofa bed in a normal manner can reasonably lead to injury. Thus, Crooks has met her burden to prove this element.

Analysis — Part IIP

We must now determine whether the hospital knew or should have known of the defect. According to the testimony of William Wilkie, director of facilities and safety officer at LCMH, no inspection of the sofa beds was ever conducted by anyone to his knowledge, nor are any such inspections regularly performed by his staff. While this tends to show that the Defendants had no actual knowledge of the defect this particular sofa bed, this does not defeat Crooks’ cause of action. Had LCMH exercised reasonable care, i.e. inspect the sofa beds in use in its facility, it would have discovered the defect. Thus, we find that the Defendants should have known of this defect and that Crooks has carried her burden of proof for this element.

| ^Analysis — Part IV:

Next, we must determine whether “the damage could have been prevented by the exercise of reasonable care.” Clearly, had LCMH performed regular inspection of its furniture, this defect would have been discovered and the damage could have been prevented. As such, we find that Crooks has carried her burden of proof for this element.

Analysis — Part V:

Finally, we must determine whether the Defendants “failed to exercise such reasonable care.” As stated above, Wilkie testified quite frankly that the hospital did not inspect the sofa beds or any furniture in its facility. Thus, it is apparent that the Defendants failed to exercise reasonable care.

Causation — Preexisting Conditions:

Having made a determination that Crooks met the necessary elements under La.Civ.Code art. 2817.1, we must now look to the medical evidence in the record to find what injuries, if any, Crooks endured due to falling through the defective sofa bed. There is no dispute in the medical evidence that Crooks suffered from neck pains prior to the accident. Furthermore, there is no dispute that Crooks underwent two neck surgeries prior to the accident. Finally, there is no dispute that Crooks occasionally suffered from lower back pain.

Causation — Back Pains:

Crooks was treated for back pains by her long-time physician, Dr. Fayez Sham-ieh, a neurologist. When questioned about Crooks’ character as a patient, Dr. Sham-ieh testified to the following:

Q. Has Judy ever given you any reason to think that she was not being completely honest with you?
A. No.
| i?,Q. And when she told you the story about going through the bed and it didn’t really hurt her at first, did you believe that?
A. Oh, yeah, I did, yeah.
Q. And pretty consistent the description of the accident with what complaints she was having; correct?
A. That’s correct, yeah.

Several physicians relayed opinions regarding Crooks’ back pain. First, Dr. Shamieh testified to the following regarding his impression of Crooks and the causation of her lower back pain:

Q. So, is it your opinion, Dr. Shamieh, knowing her history as long as you have, seeing her for the year or so before this accident that this fall through the sofa bed caused her either an exacerbation of a pre-ex-isting condition, new injury, or even possibly both, probably both?
A. Yeah, most likely in my opinion that she had the pre-existing condition. This one exacerbated her problem. I cannot really be sure more than that, but most likely it exacerbated her problem.
Q. You can’t be a hundred percent sure, but within a reasonable medical certainty that is, more probably than not, the fall through the sofa bed caused her to become symptomatic with the radiculopathy?
A. That’s correct, yeah.
Q. It caused her to have more pain in her back?
A. That’s correct, yeah.

Next, Dr. Anil Nanda, a neurosurgeon, saw Crooks regarding her back pain. Dr. Nanda testified to the following regarding his impression of Crooks and the causation of her lower back pain:

Q. And if, in fact, Ms. Crooks will testify, and I want you to assume that she will testify that while she had some problems prior to the accident, that the accident aggravated that condition to a great degree, and that she suffered increased pain and problems following the accident ... Assuming that to be true, wouldn’t you agree that this accident, that it’s more probable than not, caused an aggravation to her back condition?
A. Based on her veracity, yes.
113- • • •
Q. And if, in fact, there was no thought on her part of having surgery prior to this accident and that she had not consulted for a surgical consult prior to the accident, wouldn’t you agree that more likely than not her condition which then caused her to come see you was related to the fall?
A. Yes.

Additionally, Dr. Frank Lopez, a specialist in pain management, testified to the following regarding his impression of Crooks and the causation of her lower back pain:

Q. And when you put the finding together that you had on that very first visit, can you tell us what your clinical impression was?
A. If you’re asking as to causation in regards to what she is complaining of, she’s telling me that she has back pain, that she had a recent fall, that she had back problems in the past but those, from my understanding, had been being minimized. So, my findings in the clinical examination correspond to the complaints she had. So, it was then my impression that she sustained a fall which made her have this pain of the complaints and the physical examination corresponds to those complaints.
Q. And so, in fact, if she had some low back pain before the fall but no radiating pain, let’s say for the year and a half or so before the fall, if she has some back pain at the time of the fall but immediately after the fall it begins to get worse, and then she has the radiating pain that you’ve talked about and has been diagnosed in all the test, that would be something that either is a new injury or an exacerbation to a pre-existing condition; correct?
A. Yes.
Q. And it’s your opinion, you’ve already told us, whether it’s a new injury or it’s an old problem that she had, it was either made worse or made symptomatic by her fall through the sofa bed?
A. That’s a good assessment.

Finally, Dr. Clark Gunderson, an orthopedic surgeon, testified to the following regarding his impression of Crooks and the causation of her lower back pain:

|14Q. And based on your review of the testing, did you come up with a diagnosis for Judy?
A. I did.
Q. And what was the diagnosis?
A. I believe she had some spondylolis-thesis at L5-S1 and degenerative disk at L4-5 which had been rendered symptomatic.
Q. Rendered symptomatic by this accident?
A. Yes.
Q. Doctor, we have to ask this. It’s kind of a legal way of phrasing it. It’s a little big long and drawn out, but I’ll try to be as quick as possible. Assume in the essentially 12-month period of time before the fall at Memorial hospital that Judy had only occasional flare-ups with low back pain. Assume that she had no radiculopathy for that period of time, and that after this event at Memorial Hospital she had an onset of severe pain and radiculo-pathy that lasted all the way until she saw you and beyond up to the point where she had surgery, and assume you didn’t have some sort of intervening accident. Is it more probable than not that what you saw her for and the problems that you saw in the objective testing were caused by the fall at Memorial Hospital?
A. Yes.
Q. And your opinion that Mrs. Crooks’ alleged fall at Lake Charles Memorial Hospital rendered this pain symptomatic, the lower back pain with radiation of the legs, isn’t it fair to say that it’s based on Mrs. Crooks’ representation to you that she was asymptomatic before the time of that fall?
A. Yes.

Given the testimony above, we find that Crooks has carried her burden to prove that the back pain she suffers is casually related to the December 21, 2002 accident. We base this finding on Dr. Shamieh’s endorsement of Crooks’ character, on Dr. Shamieh’s testimony that differentiates the preexisting back pains from the post-accident back pains, and Dr. Shamieh’s finding that those postjacci-dent15 back pains are more probable than not related to the fall through the defective sofa bed.

Causation — Back Pain and Surgery:

Several physicians relayed opinions regarding Crooks’ back pain and the need for surgeries. They were Drs. Shamieh, Nanda, Lopez, and Gunderson. Dr. Sham-ieh related Crooks’ back pain to the accident.

Dr. Nanda testified to the following regarding his impression of Crooks and the need for surgery:

Q. And in deciding whether to perform surgery on a patient you look at diagnostic studies as well as a patient’s complaints of pain?
A. Correct.
Q. In other words, if she had diagnostic studies that showed she had a preexisting spondylolisthesis but she wasn’t having complaints of pain, you would not suggest an operation at that time?
A. Correct.
Q. And if, in fact, after an accident she has a condition that may have preexisted but the condition became symptomatic to the point that she even sought out a surgeon to see what opinions were available, would you agree that the aggravation to the back condition would contribute to the need for surgery?
A. Yes.
Q. And if, in fact, there was no thought on her part of having surgery prior to this accident and that she had not consulted for a surgical consult pri- or to the accident, wouldn’t you agree that more likely than not her condition which then caused her to come see , you was related to the fall?
A. Yes.

On cross-examination, Dr. Nanda testified to the following regarding additional surgeries Crooks may need due to the fall:

Q. Just hypothetically assuming that Ms. Crooks’ first surgery, which you performed, was something that you can relate the need to for the fall, the additional surgery she’s going to have are those things that you could also relate to the fall?
hr,A- Yes.

Next, Dr. Lopez, testified to the following regarding the accident and the need for surgery:

Q. Based on the history that you got about her falling through the sofa bed, is it your opinion that it’s more probable than not that the fall through the sofa bed caused her need for surgery?
A. Probably, yes.
Q. Okay. Based on your treatment of her until May of this year, do you have an opinion on whether or not it is probable that she may have surgery looming for her in the future?
A. I don’t know that that is in plans for her, but the natural history of back surgeries is that, as the individual ages, more problems occur than in the population that hasn’t been injured. So, as to whether she needs another surgery, I don’t know that. The possibility of it is certainly much higher than it would be let’s say in me.
Q. So, somebody who has had back surgery is much more likely to have back surgery in the future than somebody who has not had back surgery or a back injury?
A. Yes.

Additionally, Dr. Shamieh, testified to the following regarding the accident and the need for surgeries:

Q. Is it your opinion that the accident at Memorial Hospital caused Judy to need the surgery?
A. Most likely, yeah.
Q. Assuming all the facts that you know and no intervening accident since you saw her before this July of 2010 visit, there is no intervening accident at this point, would your opinion still be the same that the second surgery because of the first surgery would be related to this accident?
A. I think more probably than not, yes.

|17Finally, Dr. Gunderson, testified to the following regarding the accident and the need for surgeries:

Q. All right. And is it your opinion, based on the history that was given, that the surgery was required as a result of the accident?
A. Yes.
Q. Let me do it this way. If she had an onset of severe low back pain constant over the period of time from the date of the accident until you saw her, that would be a new symptom?
A. Yes.
Q. If in fact she had constant complaints of radiating pain into her legs, gradually increasing from after the accident until you saw her, that would be a new symptom?
A. Yes.
Q. And so that, those findings, that history, plus the objective tests that you reviewed, those are all the things that were the basis of your opinion that this accident caused the problems that needed surgery?
A. Yes.

In conclusion, every doctor testified that the injuries she sustained were related to the accident at LCMH. Each doctor testified that their treatment was related to the accident. Additionally, each doctor testified that the accident, more probable than not, caused Mrs. Crooks to undergo surgery. Thus, we find that the fall through the defective sofa bed did cause injury to Crooks’ lower back causing her to have surgery.

Damages — Medical Bills:

Crooks has submitted, through Plaintiff’s Exhibit 8, a list of all medical bills incurred. Crooks has carried her burden to prove that she is entitled to any and all medical bills with the exception of any which were incurred prior to the hospital fall. We reach this conclusion based on the medical testimony in the record. | is Accordingly, we render judgment, finding that Crooks is entitled to an award of past medical bills in the amount of $115,679.23.

Damages — Pain and Suffering/Loss of Enjoyment of Life.

The treating physicians consistently and universally testified that Crooks is a truthful patient whose complaints corresponded to objective medical conclusions. Further, those physicians opined that the objective medical findings were all, more probable than not, caused by the December 21, 2002 accident. These testimonies are not refuted by any testimony in the record.

However, Crooks has a medical history of occasional lower back pain. We note that, under Louisiana law, Crooks is entitled to compensation for aggravation of her preexisting conditions, while no compensation can be made for the existence of those preexisting conditions. This distinction, while subtle, is significant, and we have taken it into account rendering judgment in this case.

While those preexisting conditions were present, Crooks was engaging in a relatively normal life prior to this accident. The record is voluminous and clearly indicates that this lady has suffered and will continue to suffer greatly. She has undergone surgical procedures, and her potential for enjoyment of life is greatly diminished. Accordingly, after a thorough review of the record, we render judgment, finding that Crooks is entitled to a total of $200,000.00 for the aggravation of her preexisting medical conditions, her past, present, and future physical pain and suffering, her past, present, and future mental pain and anguish, and her loss of enjoyments of life, both past and future.

Damages — Future Medical Expenses:

Dr. Nanda testified regarding the cost of the surgery Crooks would need to undergo. His is the only evidence in the record regarding the cost of future medical expenses. It follows:

|19Q. Could you give us an approximation on the cost of that surgery?
A. The cost of Ringling Brothers. I’m just kidding. No, I think it’s about $30,000.00 or something with hospital and everything.

This testimony is uncontroverted. Thus, after having considered the doctor’s opinions and testimony, we find that Crooks is entitled to an award of $30,000.00 for future medical expenses.

CONCLUSION:

We find merit in Lake Charles Memorial Hospital’s contention that the trial court erroneously granted a directed verdict on the issues of liability, causation, and comparative fault. This finding pretermitted the remaining assignments of error raised by both parties.

Given that the record is complete, after conducting a de novo review to adjudicate this matter, we find that Crooks carried her burden to prove that an accident occurred on December 21, 2002, and that LCMH is liable unto her under La.Civ. Code art. 2317.1. Thus, we render judgment awarding Judy Crooks $115,679.23 in medical expenses, $200,000.00 for the aggravation of her preexisting medical conditions, the physical and mental pain and suffering for past, present, and future, and the loss of enjoyment of her life, both past and future, and $30,000.00 for future medical expenses. All costs of these proceedings are assessed to Lake Charles Memorial Hospital.

REVERSED AND RENDERED.


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    CURTIS WRECKER, LLC v. TOWN OF VIDALIA.
    No. 12-706.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 8, 2012.
    Anna E. Dow, Gonzales, LA, for Plaintiff/Appellant, Curtis Wrecker, LLC.
    Connell Lee Archey, Kantrow, Spaht, Weaver, Blitzer, APLC, Baton Rouge, LA, for Defendant/Appellee, Town of Vidalia.
    Court composed of MARC T. AMY, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   AMY, Judge.

_[jOn July 3, 2012, this court issued a rule, sua sponte, for Appellant, Curtis Wrecker, LLC, to show cause, by brief only, why the instant appeal should not be dismissed pursuant to La.Code Civ.P. art. 1915(B)(1). Soon thereafter, on July 9, 2012, Appellee, the Town of Vidalia, filed a motion to dismiss the instant appeal on similar grounds. On July 20, 2012, this court received Appellant’s response to the rule. For the reasons given herein, we hereby dismiss the appeal.

On January 27, 2011, Appellant filed suit against Appellee seeking damages allegedly resulting from the removal of Appellant from Appellee’s rotation list in 2008. In response, Appellee filed an exception of prescription seeking to dismiss Appellant’s claims as untimely. The exception was tried on February 23, 2012. On March 5, 2012, the trial court issued a judgment sustaining Appellee’s exception in part. The March 5, 2012 judgment dismissed, with prejudice, all claims arising out of the removal of Appellant from Appellee’s rotation list and all right of use claims occurring before January 27, 2010, but maintained any right of use claims arising after January 27, 2010.

Thereafter, on April 9, 2012, Appellant filed a document entitled, “Motion and Order for Appeal of Partial Final Judgment Under C.C.P. art. 1915,” which was signed on April 16, 2012. The motion for appeal stated, in pertinent part:

And on further showing that this court has designated and certified this judgment for the purpose of an immediate appeal, such certification and supporting reasons being attached to this motion of appeal;....

Despite this language, the trial court did not provide any documentation certifying the March 5, 2012 judgment as final. Considering the foregoing, we now address whether the instant appeal is properly before this court.

Pursuant to La.Code Civ.P. art. 2083(A): |2A final judgment is appealable in all causes in which appeals are given by law, whether rendered after hearing, by default, or by reformation under Article 1814.

A granted, partial summary judgment is not immediately appealable unless “it is designated as a final judgment by the court after an express determination that there is no just reason for delay.” La. Code Civ.P. art. 1915(B)(1). In the absence of such a determination and designation, “any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal.” La.Code Civ. P. art. 1915(B)(2).

Here, Appellant wishes to appeal the March 5, 2012 judgment, which partially sustained Appellee’s exception of prescription. Because the March 5, 2012 judgment adjudicates fewer than all of the claims asserted against Appellee, does not terminate the suit as to any party, and was not designated a final judgment by the trial court, we find that the March 5, 2012 judgment is not ripe for immediate appeal.

Based on the foregoing, we find that the instant appeal is not properly before this court. Accordingly, we hereby dismiss this appeal at Appellant’s cost.

APPEAL DISMISSED.


author: WALLER, Chief Justice, CHANDLER, Justice,

text:
    The CITY OF JACKSON, Mississippi, and the City of Jackson Police Department v. Shalandria SHAVERS, individually, and on behalf of all the Wrongful Death Beneficiaries, and Heirs of Law of Doris Shavers, Deceased.
    No. 2011-IA-00859-SCT.
    Supreme Court of Mississippi.
    July 26, 2012.
    Rehearing Denied Sept. 27, 2012.

      Kimberly Banks, Pieter Teeuwissen, attorneys for appellants.
    Thomas J. Bellinder, Dennis C. Sweet, III, Terris C. Harris, Dennis C. Sweet, IV, Jackson, attorneys for appellee.
   WALLER, Chief Justice,

for the Court:

¶ 1. In September 2007, Henry Phillips murdered Doris Shavers in the home they shared. The heirs of Shavers sued the City of Jackson (“the City”), claiming the actions of its police officers caused Shavers’s death. The City moved for summary judgment, claiming immunity under the Mississippi Tort Claims Act (“MTCA”). The Hinds County Circuit Court denied the City’s motion, and the City now brings this interlocutory appeal.

¶ 2. The question before this Court is whether there exists a genuine issue of dispute that the City, through its police officers, acted in reckless disregard of Shavers’s safety, thereby exposing the City to liability. We hold that, as a matter of law, the City did not act with reckless disregard. Accordingly, we reverse the circuit court’s denial of summary judgment and render judgment in favor of the City.

FACTS AND PROCEDURAL HISTORY

¶ 3. On September 17, 2011, City of Jackson police officers were dispatched to the home of Doris Shavers on Ludlow Avenue in Jackson, Mississippi, in response to calls that an armed man was making threats toward a minor on a bicycle. The “armed man” was Henry Phillips, who was living with Shavers at the time. When officers arrived, Phillips was in possession of a .25-caliber weapon with a silver and brown handle. Officers left the scene, but returned shortly thereafter to take the weapon from Phillips. While one officer, Officer Snow, was with Phillips retrieving the gun, another officer, Officer McDonald, talked with Shavers. There is no indication that Shavers was afraid of Phillips or that she wanted Phillips removed from her house.

¶ 4. With Phillips’s help, the officers found the .25-caliber weapon in a nearby field and confiscated it. Shavers then went to her mother’s home, also on Ludlow Avenue. When police left the scene, they took with them the gun they had confiscated from Phillips. Less than ten minutes later, officers were dispatched back to Ludlow Avenue on a reported shooting. Phillips, using a different gun, had shot and killed Shavers in her home. Phillips pleaded guilty to murdering Shavers and is currently serving a life sentence in custody of the Mississippi Department of Corrections.

¶ 5. On June 23, 2008, Shalandria Shavers, individually and on behalf of Doris Shavers’s wrongful-death beneficiaries and heirs, sued the City of Jackson, the Jackson Police Department, Henry Phillips, and eight unnamed individuals for the wrongful death of Doris Shavers. The City filed a motion for summary judgment, claiming immunity under the MTCA. In a one-page order, the circuit court denied the City’s motion. This Court then granted the City’s petition for interlocutory appeal.

ISSUE

¶ 6. The issue on appeal is whether the trial court erred in denying the City’s motion for summary judgment based on the City’s claim that it is immune from liability under the MTCA. To answer this question, we must determine whether there is a genuine issue of fact as to whether the City, through its police officers, acted in reckless disregard for the safety of Doris Shavers. See Miss.Code Ann. § 11 — 9—1(c) (Rev.2004).

STANDARD OF REVIEW

¶ 7. This Court conducts a de novo review of rulings on motions for summary judgment. Arcadia Farms P’ship v. Audubon Ins. Co., 77 So.3d 100,104 (Miss.2012). Summary judgment is appropriate when “the pleadings, depositions,' answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). We view evidence in the light most favorable to the nonmoving party. Arcadia Farms, 77 So.3d at 104.

DISCUSSION

¶ 8. The City of Jackson claims it is immune from liability pursuant to the MTCA. The act provides that a governmental entity is not liable for any claims:

[ajrising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury.

Miss.Code Ann. § 11 — 46—9(l)(c) (Rev.2004) (emphasis added). Reckless disregard is “a higher standard than gross negligence, and it embraces willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act.” Phillips v. Miss. Dep’t of Pub. Safety, 978 So.2d 656, 661 (Miss.2008). It typically involves a conscious indifference to consequences, and almost a willingness that harm should follow. Maye v. Pearl River County, 758 So.2d 391, 394 (Miss.1999). Reckless disregard is found where there is a deliberate disregard of an unreasonable risk and a high probability of harm. City of Laurel v. Williams, 21 So.3d 1170, 1175 (Miss.2009) (quoting Maldonado v. Kelly, 768 So.2d 906, 910-11 (Miss.2000)).

¶ 9. The plaintiffs argue that the officers acted in reckless disregard by failing to arrest Phillips prior to the murder of Shavers. They claim that if the officers had run an “NCIC” background search on Phillips, they would have discovered that he was a convicted felon who was in possession of a firearm. Accordingly, had the officers run this search, the plaintiffs claim, they would have arrested Phillips on their initial encounter, thereby preventing Shavers’s death. The City argues that the plaintiffs have not placed any evidence before the court indicating that Phillips was a convicted felon nor that the officers were required to run an NCIC check on Phillips. However, even if we assume that Phillips was a convicted felon, and even assuming the officers were required to run an NCIC or other background check, the plaintiffs have not presented evidence that the officers acted in “reckless disregard” for the safety of Doris Shavers.

¶ 10. The plaintiffs, in essence, must show that the officers appreciated an unreasonable risk to Shavers’s safety, understood that there was a high probability of harm to her, and then, in failing to run a background check on Phillips, deliberately disregarded that risk in a willful or wanton manner, exhibiting a conscious indifference to the consequences and almost a willingness that harm should follow their actions. See Williams, 21 So.3d at 1179 (Waller, C.J., specially concurring). However, the officers had no reason to perceive an unreasonable risk to Shavers’s safety or a high probability of harm to her. The officers were not called to a disturbance between Phillips and Shavers, and Shavers was not the target of Phillips’s original threats. It also cannot be said that the officers exhibited a “conscious indifference to the consequences,” particularly when they confiscated the gun originally at issue. Under these facts, it cannot be said that the officers acted in reckless disregard for Shavers’s safety.

¶ 11. In similar situations, this Court and the Court of Appeals have been consistent in determining that officers do not act with “reckless disregard” when they fail to arrest an individual who later commits an act of violence against another. See City of Laurel v. Williams, 21 So.3d 1170 (Miss.2009); Collins v. Tallahatchie County, 876 So.2d 284 (Miss.2004); Johnson v. City of Quitman, 66 So.3d 1261 (Miss.Ct.App.2011).

¶ 12. In Collins, Essie Collins sued Tal-lahatchie County for failing to arrest her estranged husband before he shot and injured her. Collins, 876 So.2d at 286. Collins had reported to the Tallahatchie County Sheriffs Department (“TCSD”) that her husband had called, threatening to kill her. Id. Upon instruction from the TCSD, she filed a criminal affidavit against her husband in the justice court. Id. The warrant was signed by a judge but never delivered to TCSD, and Collins’s husband was not arrested. Id. Collins’s husband later broke into her home and shot and injured her. Id. She sued Tallahatchie County for failing to arrest her husband. Id. The trial court granted summary judgment for the county on the basis of sovereign immunity, and this Court affirmed the decision. Id.

¶ 13. Collins had alleged that the TCSD had probable cause to arrest her husband even without a warrant. Id. at 287. This Court agreed that probable cause existed but still held that the county’s actions did not amount to reckless disregard. Id. at 288. The Court noted that the plaintiff provided “no authority for the proposition that the failure to arrest despite the presence of probable cause automatically rises to a level of reckless disregard.” Id. at 287. Since “reckless disregard” encompasses “knowingly or intentionally commit[ting] a wrongful act,” and since there was “no evidence that TCSD knew that it could and/or was required to arrest [Collins’s husband],” the Court held that the county’s conduct, while potentially negligent, did not rise to the level of reckless disregard. Id. at 288.

¶ 14. In Williams, Lisa Williams’s wrongful-death beneficiaries sued the City of Laurel for its police officers’ failure to arrest Kenneth Wilson, Williams’s boyfriend, before he killed Williams with a knife. Williams, 21 So.3d at 1172. On the night of the killing, officers had been dispatched to Williams’s home at around 8:80 p.m. on a domestic dispute between Williams and Wilson. Id. at 1172-73. After talking 'with police, Wilson left Williams’s residence and went to the home of Annie Walker, Williams’s mother. Id. at 1173. At around 10:00 p.m., officers were called to Walker’s residence, where Walker told police she wanted Wilson to leave, because he was “very intoxicated and angry.” Id. Officers took Wilson to the police station and let his parents come pick him up. Id. at 1173-74. At about 11:15 p.m., officers were called back to Williams’s home, where they found Wilson holding a knife, standing over a bleeding Williams, who later died of stab wounds. Id. at 1174.

1115. We reversed the trial-court judgment for the plaintiffs and held that the City was immune because the officers did not act in reckless disregard for Williams’s safety. Id. at 1176. The Court found that the officers’ actions did not amount to “willful or wanton conduct.” Id. at 1175. We held that there was “no evidence that the officers intended for harm to follow their decision not to arrest, nor is there evidence establishing a conscious indifference to the consequences of their actions.” Id. at 1176. Recognizing the high burden a plaintiff must reach to prove reckless disregard, the Court held that Williams’s heirs could not meet that burden under these facts:

To hold that the officers understood Wilson to constitute an “unreasonable risk” to Williams, and that they “deliberately disregarded that risk and the high probability of harm involved” would be inconsistent with our established precedent.

Id. (quoting Miss. Dep’t of Pub. Safety v. Durn, 861 So.2d 990, 995 (Miss.2003)).

¶ 16. It is clear that, based on our precedent, we must hold that the officers in today’s case did not act with reckless disregard. Like Williams and Collins, the only thing the officers did allegedly to contribute to Shavers’s death is fail to arrest Phillips when they had a chance to do so. As was the case in Collins, there is no indication that the Jackson police officers “knew that [they] could and/or [were] required to arrest [Phillips].” Collins, 876 So.2d at 288. There is no evidence that the officers acted in a willful or wanton manner, and no evidence suggests the officers intended for harm to follow their actions. Considering this Court’s precedent, there is no genuine issue as to whether the officers acted in reckless disregard of Doris Shavers’s safety. As a matter of law, they did not.

¶ 17. The plaintiffs assert that their expert, Dennis K. Waller, will testify that the officers should have run an NCIC check on Phillips, and that failing to do so constitutes reckless disregard on the part of the officers. The plaintiffs argue that the trial court credited Waller’s proposed testimony in denying the City’s motion for summary judgment. However, the trial court’s order gives no indication of the particular facts or reasoning it relied upon in ruling on the motion. The trial court’s order denying summary judgment simply states, “having reviewed the pleadings and other submissions, having heard the argument of the parties, and being otherwise advised in the premises [the court] finds the motion is not well taken and should be denied.”

¶ 18. Furthermore, the record does not contain an affidavit or any sworn statement from Waller indicating his proposed testimony. In the absence of a sworn statement from the expert, assertions in a party’s brief are insufficient to defeat summary judgment. See Magee v. Transcon. Gas Pipe Line Corp., 551 So.2d 182, 186 (Miss.1989) (“[T]he party opposing summary judgment may not create an issue of fact by arguments and assertions in briefs or legal memoranda.”). Finally, notwithstanding Waller’s opinion, our precedent makes it clear that the officers in this ease did not act with reckless disregard. See Collins, 876 So.2d 284; Williams, 21 So.Bd 1170.

¶ 19. The plaintiffs also contend that summary judgment is inappropriate at this stage of the litigation. The docket sheet reflects that on May 10, 2011, the trial court entered an order allowing for additional time to conduct discovery. The record does not contain this order, however, and the docket sheet is silent as to how many days of additional discovery the court granted. Along with the plaintiffs’ response to the City’s motion for summary judgment, they submitted an affidavit from their attorney, pursuant to Mississippi Rule of Civil Procedure 56(f), stating the need for additional time to conduct discovery. The plaintiffs assert that they have not been able to depose the officers involved in the case, and that the trial court denied the defendant’s motion in order to allow the plaintiffs the opportunity to conduct their desired discovery.

¶ 20. Rule 56(f) provides that summary judgment may be denied to allow “affidavits to be obtained or depositions to be taken or discovery to be had.” Rule 56(f) is in place because “the completion of discovery is, in some instances, desirable before the court can determine whether there is a genuine issue of material fact.” Owens v. Thomae, 759 So.2d 1117, 1120 (Miss.1999) (emphasis added) (quoting Marx v. Truck Renting & Leasing Ass’n, Inc., 520 So.2d 1333, 1343 (Miss.1987)). Although the trial court denied the defendants’ motion for summary judgment after it ordered additional time for discovery, the record does not indicate that the trial court denied summary judgment for the purpose of allowing further discovery. As discussed above, the trial court’s order gives no indication of the reasoning behind its ruling.

¶21. More importantly however, no material facts are in dispute or could be exposed through further discovery. The plaintiffs consistently have opposed the City’s contention that Phillips and Shavers were involved in a dating relationship at the time of the shooting. However, even if the plaintiffs are correct—that Phillips and Shavers were not in a dating relationship—this fact is irrelevant to the determination of reckless disregard, as the plaintiffs admit in their brief. The plaintiffs have failed to show how further discovery will allow them to defeat the City’s motion for summary judgment, which is a prerequisite to obtaining the protections of Rule 56(f):

The party resisting summary judgment must ... specifically demonstrate ‘how postponement of a ruling on the motion will enable him, by discovery or other means, to rebut the movant’s showing of the absence of a genuine issue of fact.’

AAA Cooper Transp. Co. v. Parks, 18 So.3d 909, 912 (Miss.Ct.App.2009) (quoting United States v. Little Al, 712 F.2d 133, 135 (5th Cir.1983)). Summary judgment may be granted, in spite of a Rule 56(f) request for time for additional discovery, when the record contains all the necessary information for a ruling on the motion. See Miss. Ins. Guar. Ass’n v. MS Cas. Ins. Co., 947 So.2d 865, 876 (Miss.2006). We find that the record in today’s case currently contains sufficient information for this Court to grant summary judgment for the City.

CONCLUSION

¶ 22. The trial court erred in denying the City’s motion for summary judgment. As a matter of law, the officers did not act in reckless disregard for the safety of Doris Shavers. Furthermore, the plaintiffs have not shown how additional discovery will create a genuine issue of disputed fact. Accordingly, we reverse the trial court and render judgment in favor of the City.

¶ 23. REVERSED AND RENDERED.

CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR AND PIERCE, JJ., CONCUR. CHANDLER, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS AND KING, JJ.

CHANDLER, Justice,

Dissenting:

¶ 24. On May 10, 2011, the trial judge entered an order extending discovery for forty-five days. Summary judgment was denied within that forty-five-day period on May 27, 2011. “Where additional facts will add clarity and a greater assurance of a just disposition on the merits, the trial court should deny the summary judgment.” Hudgins v. Pensacola Const. Co., Inc., 630 So.2d 992, 993 (Miss.1994) (citation omitted). I would find that the lack of discovery renders the grant of summary judgment premature in this case. Therefore, I would affirm the trial court’s denial of summary judgment.

¶ 25. The City filed its motion for summary judgment on February 15, 2011. On March 17, 2011, plaintiffs filed a response in opposition to the defendants’ motion for summary judgment. In their response, plaintiffs stated that their expert, Dennis Waller, would testify that the police officers’ actions on the night of September 17, 2007, were a result of reckless disregard. Specifically, the plaintiffs explained that Waller would testify that a NCIC background check would have revealed that Phillips was a felon in possession of a firearm and that the officers’ failure to do so is “contrary to sound law enforcement practice and nationally accepted standards of police training and practice.” The plaintiffs also provided this information in their interrogatory responses on March 18, 2011.

¶ 26. On April 20, 2011, the trial court held a summary judgment hearing. The plaintiffs argued specifically that the City had not yet provided the police officers for depositions. Further, the plaintiffs stated that, in order to meet their burden of proof, they needed the officers’ testimony. The defendants do not contest that the hearing occurred. They state only that no court reporter was present to transcribe the proceedings. On May 10, 2011, the trial court ordered an additional forty-five days for discovery. The City of Jackson did not designate the order for the record, however, the docket sheet reflects that an order was entered for additional discovery. The plaintiffs state that their attempts to depose any officers within the discovery period were unsuccessful due to the defendants’ steadfast resistance to all requests to schedule depositions. The trial court denied the defendants’ motion for summary judgment on May 27, 2011.

¶ 27. The decision to grant or deny a continuance is within the sound discretion of the trial court and will be reversed only where the court abuses that discretion. Prescott v. Leaf River Forest Prods., Inc., 740 So.2d 301, 306 (Miss.1999). This Court has stated that “[t]he rule itself contemplates that the completion of discovery is, in some instances, desirable before the court can determine whether there is a genuine issue of material fact.” Marx v. Truck Renting & Leasing Ass’n, Inc., 520 So.2d 1333, 1343 (Miss.1987). In addition, the opportunity to flesh out discovery may be required especially where the information necessary to oppose the motion for summary judgment is within the possession of the party seeking summary judgment.” Id. at 1344. In this case, the City is seeking summary judgment and holds the relevant discovery-the officer testimony. The trial judge entered an order on May 10, 2011, to extend the time for discovery. He denied the defendants’ motion for summary judgment on May 27, 2011. I would find that the judge properly denied this motion so that discovery might be completed.

¶ 28. The plaintiffs gave a detailed interrogatory response, informing the City of Waller and his expertise in law-enforcement matters, police policies, and standard police practices. The plaintiffs stated that Waller has been retained in nearly thirty states and has served as an expert witness in state and federal courts. In addition, the plaintiffs informed the City that Waller had reviewed the police reports, Phillips’s arrest report, and all other relevant pleadings filed. The plaintiffs also stated that Waller would testify that the officers’ actions were reckless and unreasonable and that their actions were the proximate cause of Shavers’s death. The trial judge had this information before him when he entered his order to extend discovery.

¶ 29. The only evidence in the record detailing the events of the night of the shooting stems from officers’ and witnesses’ narratives. The narratives provided the following: there was uncertainty surrounding the actions of the officers pri- or to the shooting; Phillips shot Shavers after the officers left; the officers who arrived at the scene after the shooting secured the scene and interviewed witnesses; witnesses saw Phillips with a gun; and officers detained Phillips after the shooting. In accordance with the judge’s order, more discovery would aid in the clarification and explanation of the circumstances surrounding the shooting.

¶ 30. “In situations where there is doubt as to whether a genuine issue of material fact exists, a trial judge should err on the side of denying a motion for summary judgment and permitting full trial on the merits.” Todd v. First Baptist Church of W. Point, 993 So.2d 827, 829 (Miss.2008) (citation omitted). I would find this Court’s decision premature based on outstanding discovery issues in this matter. Specifically, I would find that the issue of whether the officers’ failure to do a background check warrants an unveiling of all relevant facts surrounding that eve-rang, which ended in the shooting death of Doris Shavers.

KITCHENS AND KING, JJ., JOIN THIS OPINION.

      . The history of the case is taken from the parties' pleadings and other trial court filings.

      . Although Shalandria Shavers is a plaintiff in this case, the case concerns the death of Doris Shavers. As such, we will use the name "Shavers” to refer to Doris Shavers.

      . The FBI National Crime Information Center runs an electronic database of criminal records available to criminal justice agencies nationwide. See http://fbi.gov/about-us/cjis/ncic (last visited July 24, 2012).

      . Dennis K. Waller is not related to Chief Justice Waller.

      . While the majority contends that the time for discovery is not provided in the record, the plaintiffs state, in their brief, that the extension was for forty-five days. The defendants do not contest in their initial brief or reply brief that the order provided forty-five days for additional discovery.


author: KITCHENS, Justice, RANDOLPH, Justice,

text:
    TANFIELD ENGINEERING SYSTEMS, INC. v. Peggy Ann THORNTON, as Widow of Gregory Thornton, Deceased.
    No. 2011-IA-00682-SCT.
    Supreme Court of Mississippi.
    Sept. 13, 2012.

      Aaron Reese Edwards, Jackson, attorney for appellant.
    Benjamin L. Locklar, Britt Ventson Be-thea, attorneys for appellee.
    Before WALLER, C.J., LAMAR and KITCHENS, JJ.
   KITCHENS, Justice,

for the Court:

¶ 1. Peggy Thornton filed this wrongful death action on August 14, 2007, against Woodall Electric Company, Inc. (her deceased husband’s employer), as well as several fictitious defendants. Thornton later added Defendants Tanfield Group, PLC, Tanfield Engineering Systems, Inc. (“Tanfield Engineering”), and Bidgood Enterprises, Inc. in her First Amended Complaint, filed on July 16, 2009, which included additional claims of defective design against the newly added defendants.

¶ 2. After having served Tanfield Group, Thornton had an alias summons issued for Tanfield Engineering on October 18, 2010, and served Tanfield Engineering via certified mail on October 22, 2010. Tanfield Engineering filed a Motion to Dismiss the First Amended Complaint based on the plaintiffs failure to serve process, pursuant to Mississippi Rule of Civil Procedure 12(b)(4)-(5). Thornton’s response to the motion contended that Tanfield Group was the parent company of Tanfield Engineering; thus, according to Thornton, Tanfield Engineering had been put on notice of Thornton’s claims because its parent company had been served in a timely manner. The trial court denied Tanfield Engineering’s Motion to Dismiss based on a finding that Tanfield Engineering was an alter ego of Tanfield Group and that service upon Tanfield Group constituted effective service upon Tanfield Engineering.

¶ 3. Tanfield Engineering filed a Petition for Interlocutory Appeal and a motion to stay proceedings in the trial court, both of which this Court granted.

FACTS AND PROCEDURAL HISTORY

¶ 4. On or about July 27, 2007, Gregory Thornton, while working at Woodall Electric Company, fell from an Upright scissor lift that unexpectedly had toppled over, resulting in his death. Peggy Thornton, Gregory’s widow, filed a wrongful death action on August 14, 2007, against Woodall Electric Company, Inc. (the decedent’s employer), as well as other unknown defendants. Peggy Thornton filed a First Amended Complaint on July 16, 2009, alleging that the Upright scissor lift was defectively designed and naming Tanfield Group, PLC, Tanfield Engineering Systems, Inc. (“Tanfield Engineering”), and Bidgood Enterprises, Inc., doing business as Taylor Rental Center of Meridian as the substituted defendants, replacing three of the unknown defendants in the original complaint. Thornton also moved the court for additional time in which to serve process on Tanfield Group, PLC, pursuant to the guidelines of The Hague Convention, because Tanfield Group, PLC’s principal place of business was in England. The trial court granted Thornton an indefinite extension. Tanfield Group, PLC, filed its Answer and Defenses on September 18, 2009.

¶ 5. An alias summons for Tanfield Engineering was issued on October 18, 2010, and Tanfield Engineering was served via certified mail on October 22, 2010. Tan-field Engineering filed a Motion to Dismiss, pursuant to Mississippi Rules of Civil Procedure 12(b)(4)-(5), based on a failure to serve process within 120 days. Thornton’s response in opposition to the motion contended that Tanfield Group, PLC, a corporation located in the United Kingdom, and Tanfield Engineering were the manufacturers of the Upright aerial lift that fatally injured Gregory Thornton. According to Thornton’s widow, Tanfield Group was the parent company of Tanfield Engineering, a U.S. subsidiary; thus, Tan-field Engineering had been put on notice of Thornton’s claims because its parent company had been served process. Alternatively, Thornton asked that Tanfield Engineering’s motion be held in abeyance until more discovery could be had to determine whether Tanfield Engineering was “merely the alter-ego of its foreign parent.”

¶6. Tanfield Engineering responded to Thornton’s opposition, emphasizing that it was not served process until 452 days after Thornton had filed the Amended Complaint. Moreover, Tanfield Engineering argued that the trial court was required to dismiss Thornton’s complaint because it had not been served within 120 days pursuant to Mississippi Rule of Civil Procedure 4(h) and because Thornton had failed to show good cause why service of process could not have been made within 120 days. Moreover, Tanfield Engineering argued that, while it was a wholly owned, U.S. subsidiary of its British parent company, the two entities were separate and distinct. Thus, according to Tanfield Engineering, service of process on its parent company would have had no legal effect on Tanfield Engineering.

¶ 7. Subsequently, the trial court sua sponte issued a request for interrogatories to Tanfield Group, PLC, which included the following questions:

(1) How much stock is owned by the parent, Tanfield Group, PLC, of the subsidiary, Tanfield Engineering Systems, Inc.?
(2) Do the two corporations ... have separate headquarters?
(3) Do the two corporations have common officers and directors?
(4) Do the two corporations observe corporate formalities?
(5) Do the two corporations maintain separate accounting systems?
(6) Does the parent ... exercise complete authority over the general policy [of the subsidiary] [?]
(7) Does the subsidiary exercise complete authority over daily operations [?]

According to Tanfield Group’s response, Tanfield Group owns 100 percent of the stock of Tanfield Engineering. The two entities share the same secretary, finance director, and chief executive officer. Both entities observe corporate formalities and maintain separate accounting systems. Tanfield Group maintained that, while the parent company offers guidance to the subsidiary, “the general policies of Tan-field Engineering Systems, Inc., are derived from the managers of the business.” Moreover, Tanfield Group averred that the common officers between the two entities had not been involved in “the direction of Tanfield Engineering Systems, Inc.,” in “over a year.”

¶ 8. The trial court denied Tanfield Engineering’s Motion to Dismiss, finding that Tanfield Engineering was an alter ego of Tanfield Group and that service upon Tan-field Group was effective service upon Tan-field Engineering. The trial court’s Memorandum Opinion and Order stated: “In evaluating the information provided in reference to the factors to consider, this [c]ourt weighs very heavy [sic] in its decision that Tanfield Group, PLC owns all of the stock of the subsidiary and the top financial officer and chief operating office of the two are the same for both corporations.” Ultimately, the court found that Tanfield Engineering is an alter ego of Tanfield Group, and, as such, service upon Tanfield Group was effective service of process upon Tanfield Engineering.

¶ 9. Aggrieved by this ruling, Tanfield Engineering filed a Petition for Interlocutory Appeal with this Court and moved to stay the trial court proceedings. This Court entered an order granting the interlocutory appeal and stay on August 4, 2011.

DISCUSSION

Whether the trial court erred in its reliance on federal precedent in determining that Tanfield Engineering is an alter ego of its parent company, Tanfield Group, PLC, and thus, service of process as to the parent company was effective service as to Tanfield Engineering.

¶ 10. Tanfield Engineering appeals the trial court’s order denying its motion to dismiss. This Court reviews a trial court’s decision to grant or deny a motion to dismiss de novo. Stutts v. Miller, 37 So.3d 1, 3 (Miss.2010) (citing Scaggs v. GPCH-GP, Inc., 931 So.2d 1274, 1275 (Miss.2006)).

¶ 11. Tanfield argues that the trial court erred in its reliance on federal precedent in ruling that Tanfield Engineering was an alter ego of Tanfield Group (hereinafter “the parent company”) and that the trial court erred in concluding that service of process on the parent company was sufficient service of process for Tanfield Engineering. Tanfield Engineering maintains that the trial court failed to apply the standard for piercing the corporate veil, as set forth in Buchanan v. Ameristar Casino Vicksburg, Inc., 957 So.2d 969 (Miss.2007). Because the trial court applied a federal standard, not the controlling state precedent, Tanfield Engineering maintains that the trial court erred in finding that Thornton’s having served the parent company with process was sufficient service upon Tanfield Engineering.

¶ 12. Conversely, Thornton argues that the doctrine of piercing the corporate veil, as pronounced in Buchanan, is inapplicable to the instant case because liability is not at issue in this appeal. Moreover, Thornton argues that, because she has a direct cause of action against Tanfield Engineering, piercing the parent company’s corporate veil to get to Tanfield Engineering is unnecessary. Thornton contends that the alter ego factors, found in Hargrave v. Fibreboard Corp., 710 F.2d 1154, 1159-60 (5th Cir.1983), were appropriately applied by the trial court in its determination that Tanfield Engineering is an alter ego of its parent for purpose of service of process.

¶ 13. It is clear from the trial court’s ruling that the court relied heavily on the fact that the parent wholly owns Tanfield Engineering and the fact that the two entities have two officers in common in rendering its decision that Tanfield Engineering is an alter ego of its parent corporation and that service of process on one entity is effective as to the other. Notably, in Hargrave, the Fifth Circuit Court of Appeals gleaned its factor analysis from the Texas “alter ego liability rule,” as the federal appellate court was applying Texas law in that particular case. See id. at 1162. Clearly, Texas common law does not provide binding precedent in this Mississippi case, and liability is not at issue in the instant interlocutory appeal. Moreover, “this Court has not adopted the [alter ego] factors as applied by the federal courts.” Buchanan, 957 So.2d at 977.

¶ 14. As argued by Thornton, this interlocutory appeal is distinguishable from Buchanan in that the issue of whether the parent corporation should be held liable for the acts of Tanfield Engineering, or vice versa, is not before the Court. Rather, Tanfield Engineering is arguing that it was not served within the requisite 120 days and should have been dismissed from the suit because service of process on its parent did not constitute proper service of process upon it, as the parent corporation is not its alter ego.

¶ 15. While the trial court erred in relying on the Fifth Circuit’s Hargrave factors, the court did not misstate the general rule for parent and subsidiary corporations and service of process: “courts have consistently recognized that a subsidiary may be found to be a parent corporation’s agent at law for service of process, or that a parent may be held a subsidiary’s agent at law for service of process where the evidence shows that one is the agent or alter ego of the other.” Delta Constructors, Inc, v. Roediger Vacuum, 259 F.R.D. 245, 249 (S.D.Miss.2009).

[T]he parent-subsidiary relation alone ordinarily does not establish the necessary agency for making service on one through the other if the two maintain separate identities.... [T]o sustain service on the parent through the subsidiary, or vice versa, a showing that the subsidiary corporation is acting as an agent for the parent corporation’s separate business within the state or that the two corporations are not really separate entities has been required.

4A Wright & Miller, Federal Practice and Procedure § 1104 (3d ed.2002).

¶ 16. While the Court in Buchanan was not addressing the issue of service of process, the following analysis is applicable to the instant case in determining whether the parent corporation is an alter ego of Tanfield Engineering:

[T]his Court has held that “[ojrdinarily two or more corporations are separate and distinct entities although the same individuals are the incorporators of, or own stock, in the several corporations, and although such corporations may have the same persons as officers.”

Buchanan, 957 So.2d at 978 (quoting Murdock Acceptance Corp. v. Adcox, 245 Miss. 151, 163, 138 So.2d 890, 896 (Miss.1962)). “A corporation ... retains a separate identity for corporation purposes when stock is owned wholly or in part by another corporation or natural person.” Buchanan, 957 So.2d at 978 (citing Murdock Acceptance, 245 Miss, at 164, 138 So.2d at 890). Even if the parent owns all of the subsidiary’s stock and the two entities share common management, this does not “oper-

ate as a merger of the two corporations into a single entity.” Buchanan, 957 So.2d at 978 (quoting Johnson & Higgins of Miss., Inc. v. Comm’r of Ins., 321 So.2d 281, 285 (Miss.1975)). Corporate identity is not disregarded “unless it is shown that one corporation is a mere instrumentality or agency or adjunct in that sense, or as a sham or is used in fraud, by the dominant corporation.” Buchanan, 957 So.2d at 978 (quoting Johnson & Higgins, 321 So.2d at 285)).

¶ 17. The responses provided by Tanfield Group indicated that the parent company owns 100 percent of the subsidiary’s stock. The parent is headquartered in the United Kingdom, while the subsidiary is headquartered in Fresno, California. The two entities share a treasurer and chief executive officer, but those officers have had no direct involvement in the management of Tanfield Engineering in more than a year. The two corporate entities observe corporate formalities and maintain separate accounting systems. Tanfield Engineering exercises, complete authority over its daily operations.

¶ 18. The trial court, in denying Tan-field Engineering’s Motion to Dismiss and in finding that Tanfield Engineering is an alter ego of its parent corporation, heavily relied on the fact that 100 percent of the stock is owned by the parent corporation and the fact that the top financial officer and chief operating officer are the same for both corporations. This is contrary to the rule, as stated in Buchanan, 957 So.2d at 978, that corporations are “separate and distinct entities,” despite the fact that a subsidiary may be wholly owned by a parent or that the two may share common officers.

¶ 19. We decline to reach the issue of whether Tanfield Engineering is or is not an alter ego of its parent, but rather, we vacate the trial court’s ruling, based on its erroneous conclusion that Tanfield Engineering is an alter ego merely because it is a wholly owned subsidiary that shares two officers with its parent corporation.

CONCLUSION

¶ 20. The trial court’s decision was contrary to this Court’s precedent that classifies subsidiaries which are wholly owned by their parent corporations and share common officers with their parent corporations, as separate and distinct from their parent corporations. Accordingly, we vacate the court’s order and remand for further proceedings consistent with this opinion.

¶ 21. VACATED AND REMANDED.

WALLER, C.J., LAMAR, CHANDLER AND KING, JJ., CONCUR. RANDOLPH, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CARLSON, P.J., AND PIERCE, J. DICKINSON, P.J., NOT PARTICIPATING.

RANDOLPH, Justice,

dissenting:

¶ 22. Under Mississippi Rule of Civil Procedure 4(h):

[i]f a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative ... or upon motion.

Miss. R. Civ. P. 4(h) (emphasis added). As a summons was not issued to Tanfield Engineering until J59 days after Thornton’s First Amended Complaint was filed, and no “good cause” was provided therefor, I would reverse and remand for the entry of an order dismissing Tanfield Engineering “without prejudice.... ” Id. Therefore, I respectfully dissent.

¶ 23. Thornton’s First Amended Complaint, filed on July 16, 2009, substituted, inter alia, Tanfield Group and Tanfield Engineering as defendants. Throughout the First Amended Complaint, Tanfield Group and Tanfield Engineering were denominated as separate defendants, with no allegations of “alter ego.” On August 3, 2009, a summons was issued solely to “Tanfield Group PLC” which provided, in pertinent part, that:

[t]he complaint which is attached to this summons is important and you must take immediate action to protect your rights.... This answer must be mailed or delivered within 30 days after this summons and complaint were delivered to you or a judgment by default may be entered against you for the money or other things demanded in the complaint.

(Emphasis added.) The summons made no reference to Tanfield Engineering.

¶24. On October 18, 2010, 459 days after the First Amended Complaint was filed, an “Alias Summons” was issued to “Tanfield Engineering Systems, Inc.” That form referenced the federal procedural standard, as follows:

[wjithin 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are [in] the United States or a United States agency, or an officer or employee of the United States described in Fed.R.Civ.P. 12(a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure.

On December 29, 2010, Tanfield Engineering filed its Motion to Dismiss, pursuant to Mississippi Rules of Civil Procedure 12(b)(4) and (5), based on Thornton’s failure to serve process on it “until well after 120 days subsequent to the filing of the amended complaint_” See Miss. R. Civ. P. 12(b)(4)-(5) (regarding motions to dismiss for “insufficiency of process” and “insufficiency of service of process”). On January 6, 2011, 539 days after the First Amended Complaint was filed, Thornton first argued “alter ego.”

¶ 25. Thornton’s “alter ego” argument as to Tanfield Engineering was more than “a day late and a dollar short.” The First Amended Complaint denominated Tanfield Group and Tanfield Engineering as separate defendants, with no allegations of “alter ego.” The August 3, 2009, summons, issued solely to Tanfield Group, made no attempt to serve process on Tanfield Engineering based on an “alter-ego” theory. In fact, that summons made no reference to Tanfield Engineering. The October 18, 2010, “Alias Summons” issued to Tan-field Engineering was both untimely (459 days after filing of the First Amended Complaint) and out of compliance with the Mississippi Rules of Civil Procedure. Only after Tanfield Engineering filed its Motion to Dismiss, more than one-and-one-half years after the First Amended Complaint was filed, did Thornton argue “alter ego.” As Thornton did not serve the summons and complaint on Tanfield Engineering “within 120 days after the filing of the complaint[,]” and failed to show “good cause” therefor, I would reverse and remand for the entry of an order dismissing Tanfield Engineering “without preju-dice_” Miss. R. Civ. P. 4(h).

CARLSON, P.J., AND PIERCE, J., JOIN THIS OPINION.

      . By Agreed Order, Woodall Electric Company, Inc., was dismissed on October 24, 2007.

      . Bidgood filed a Motion to Dismiss on November 23, 2010, which was granted by the trial court on January 11, 2011.

      . By agreed order, Woodall Electric Company, Inc., was dismissed on October 24, 2007.

      . Bidgood filed a Motion to Dismiss on November 23, 2010, which was granted by the trial court, without opposition from Thornton, on January 11, 2011.

      . Thornton’s response described Tanfield Engineering as Tanfield Group’s American subsidiary. According to Thornton, Tanfield Group is located in the United Kingdom, while its American (U.S.) subsidiary, Tanfield Engineering, is a Delaware corporation. Both are represented by the same counsel.

      .The trial court issued these interrogatories via email to both parties' attorneys. Neither party has raised the issue of whether the trial court erred in relying on its own request for discovery in ruling on Tanfield Engineering's Motion to Dismiss.

      . In its brief, Tanfield Engineering lists the issues as follows:
      A. Whether the trial court erred in applying the federal court case factors for the determination of an alter ego theory?
      B. Whether the trial court erred in finding that Tanfield Engineering is an alter-ego of Tanfield Group, PLC which was the trial court’s basis for denying Tanfield Engineering's Motion to Dismiss?
      For the sake of brevity, the issues have been consolidated.

      . Alter ego is defined as: “A corporation used by an individual in conducting personal business, the result being that a court may impose liability on the individual by piercing the corporate veil when fraud has been perpetrated on someone dealing with the corporation.” Black’s Law Dictionary 86 (8th ed.2007).

      . Piercing the corporate veil is ‘‘[t]he judicial act of imposing personal liability on otherwise immune corporate officers, directors, and shareholders for the corporation’s wrongful acts.” Black’s Law Dictionary 1184 (8th ed.2007).

      . These factors include whether:
      (1) distinct and adequately capitalized financial units are incorporated and maintained: (2) daily operations of the two corporations are separate; (3) formal barriers between management of the two entities are erected, with each functioning in its own best interests; and (4) those with whom the corporations come in contact are apprised of their separate identity. Other factors deemed important by the commentators and Texas courts are: (1) common stock ownership; (2) the method and degree of financing of the subsidiary by the parent; (3) common directors or officers; (4) separate books and accounts; (5) common business departments; (6) extent to which contracts between parent and subsidiary favor one over the other; and (7) connection of parent’s employee, officer or director to subsidiary's tort or contract giving rise to suit.

        Hargrave, 710 F.2d at 1162-63 (emphasis added).

      . However, it is noteworthy that this Court, in Buchanan, 957 So.2d at 977, although declining to adopt the federal test, did deem the ten factors used in Gammill v. Lincoln Life & Annuity Distributors, 200 F.Supp.2d 632, 634-35 (S.D.Miss.2001), to be “instructive on the alter ego theory.”

      . "In construing our rules, we look for guidance to the federal cases since the [Mississippi Rules of Civil Procedure] were patterned after the Federal Rules of Procedure.” Bourn v. Tomlinson Interest, Inc., 456 So.2d 747, 749 (Miss.1984) (citing Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984)).

      .However, it is noteworthy that this Court, in Buchanan, 957 So.2d at 977, although declining to adopt the federal test, did deem the ten factors used in Gammill v. Lincoln Life & Annuity Distributors, 200 F.Supp.2d 632, 634-35 (S.D.Miss.2001), to be “instructive on the alter ego theory.”

      . On October 22, 2010, Tanfield Engineering was served via certified mail.

      . As to Tanfield Engineering thereby being put on notice, such argument is unavailing. Notice of suit is not "service of the summons and complaint_" Miss. R. Civ. P. 4(h).

      .By referencing the federal procedural standard, the circuit court was issuing a command that it was not authorized to make.


author: PIERCE, Justice,

text:
    The Interest of S.G.M., C.D.M., and K.T.M., Minors.
    No. 2011-CA-01914-SCT.
    Supreme Court of Mississippi.
    Sept. 13, 2012.
    Helen E. Morris, attorney for appellant.
    Aelicia L. Thomas, Rosedale, attorney for appellee.
    Before CARLSON, P.J., PIERCE and KING, JJ.
   PIERCE, Justice,

for the Court:

¶ 1. On December 2, 2011, the Bolivar County prosecuting attorney filed a petition in the Bolivar County Youth Court, seeking an adjudicatory hearing, after receiving a complaint that two minor girls, S.G.M. and C.D.M., ages thirteen and eleven, respectively, had been sexually abused by their father. The youth court conducted an adjudicatory hearing on December 7, 2011. Those present at the hearing, apart from the attorneys, were Jim Warrington, the guardian ad litem (GAL) assigned to the case; Johnnie Rushing, a social worker with the Department of Human Services; David Monroe, the girls’ biological father; Peggy Monroe, the girls’ stepmother; K.T.M., the girls’ older brother, age fourteen; Tammy and Tawanda Latham, the girls’ maternal aunts; and Marie Miller, the girls’ maternal grandmother. The record indicates that, at the time of the adjudicatory hearing, S.G.M., C.D.M., and K.T.M. were in the custody of Peggy, as David had allowed Peggy to obtain custody of the children sometime after the children’s biological mother had passed away six years earlier.

¶ 2. Shortly into the hearing, the youth court became aware that only Tammy and Tawanda had been issued summonses to appear at the hearing, as required by Mississippi Code Section 43-21-507 (Rev. 2009). The youth court inquired if the other parties were willing to waive service of process. All agreed, and the youth court allowed David to waive service of process for S.G.M., C.D.M.,. and K.T.M.

¶ 3. At the conclusion of the hearing, the youth court found there was no basis to support the sexual-abuse allegation. The youth court then proceeded to conduct a disposition hearing. At that point, the prosecuting attorney informed the youth court that the court was without authority to conduct a disposition hearing because the two girls had not been adjudicated sexually abused. The county prosecutor then informed the parties in open court that, since custody of the minor children also had been at issue, the parties could take the matter to chancery court by filing a petition for guardianship in that court. The youth court thereafter concluded the hearing.

¶4. On December 14, 2011, the youth court had this matter placed on the court docket and held a hearing in the court’s chambers. Tammy, Tawanda, Marie, and Peggy were the only parties present at this hearing. The youth court stated on the record that, during the adjudicatory hearing held on December 7, it had ordered that S.G.M., G.D.M., and K.T.M. were to be placed in the custody and care of their maternal aunt Tammy. Both the county prosecutor and legal counsel for Peggy disputed that such an order had been issued by the youth court at the December 7 hearing. The record before this Court contains no indication that such an order had been issued. On December 15, 2011, the youth court entered an adjudicatory order, placing all three minor children in the custody of Tammy, while DHS conducted a further investigation into the matter, with a review hearing to be held in six months.

¶ 5. On December 21, 2011, Peggy filed a notice of appeal, asserting the following issues: (1) the youth court had no jurisdiction to conduct the adjudicatory hearing on December 7 because of lack of service of process on the children; (2) the youth court had no jurisdiction to conduct the adjudicatory hearing on December 14 because of failure to give proper notice of the hearing; (3) the youth court could not conduct a disposition hearing after finding that the abuse allegations were unsubstantiated; and (4) the order to remove the children from their home was not supported by the evidence.

¶ 6. We find the first issue disposi-tive. The youth court was without jurisdiction to conduct the adjudicatory hearing on December 7.

¶ 7. Pursuant to Section 43-21-507,

(1) Summons shall be served not less than three (3) days before the date set for the adjudicatory hearing of proceedings concerning the child.
(2) A party other than the child may waive service of summons on himself by written stipulation or by voluntary appearance at the hearing and in the case of written stipulation or voluntary appearance, the youth court may, in its discretion, proceed to a hearing regardless of the date set for the hearing if all other parties are properly before the youth court. At the time of the waiver, a copy of the petition shall be given to the party.
(3) If a child is served with process, the child may waive the three (3) days’ time before the hearing, and the youth court may, in its discretion, proceed to a hearing regardless of the date set for the hearing if all other parties are properly before the youth court and the youth court finds all of the following:
(a) the child fully understands his rights and fully understands the potential consequences of the hearing;
(b) the child voluntarily, intelligently, and knowingly waives his rights to three (3) days’ time before the hearing;
(e) the child is effectively represented by counsel; and
(d) the child has had in fact sufficient time to prepare.

Miss.Code Ann. § 43-21-507.

¶ 8. The record is clear that Section 43-21-507 was not complied with in this instance, as none of the children was served with process. This Court has addressed the importance of process to all interested parties in youth-court matters:

A minor cannot waive process required by law, and the Court has no jurisdiction of the person until process has been served upon the minor and his parents, or persons standing in loco parentis. The notice to the parents may be waived by them, but not process on the minor.

In re N.W., 978 So.2d 649, 654 (Miss.2008) (quoting In re Edwards, 298 So.2d 703, 704 (Miss.1974)). Here, while the children’s father could waive process on himself, he could not do so for his minor children. Miss.Code Ann. § 43-21-507.

CONCLUSION

¶ 9. The written adjudicatory order of the youth court is vacated, and this cause is remanded to the youth court for further proceedings consistent with this opinion.

¶10. VACATED AND REMANDED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND KING, JJ„ CONCUR.