author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Freddie L. BURTON, Jr. aka Freddie L. Burton, aka Freddie L. Burton, Sr.
    No. 10-1373.
    Court of Appeal of Louisiana, Third Circuit.
    May 11, 2011.
    Michael Harson, District Attorney, Lafayette, LA, for Appellee State of Louisiana.
    William Thomas Babin, Assistant District Attorney, Lafayette, LA, for Appellee State of Louisiana.
    G. Paul Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant Freddie L. Burton, Jr.
    Freddie L. Burton, Jr., Louisiana State Penitentiary, Angola, LA, pro se.
    Court composed of OSWALD A. DECUIR, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

|!Freddie L. Burton, Defendant, broke into an unoccupied rental house owned by Brice Hector, without Hector’s authorization, and removed two boxed ceiling fans from the home. The jury found him guilty of simple burglary and he was sentenced to serve twelve years at hard labor, with credit for time served, and to pay a fine of $2,000.00.

It is also undisputed that Hector spotted Defendant with the boxes walking in the curtilage of the home. Defendant dropped the boxes and fled the scene, but was not apprehended at that time. Fingerprints lifted from the boxes during the investigation were later confirmed to belong to Defendant and fingerprints taken of Defendant in open court matched those found on the boxes.

Defendant is now before this court on appeal, asserting that the evidence was insufficient to support his conviction. Defendant also contends that the trial court erred in allowing the State to offer a reenactment of Defendant’s fingerprinting. We affirm Defendant’s conviction and sentence.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues that the verdict of simple burglary is based on insufficient evidence because there was no proof of actual entry. Defendant maintains that the State established only an attempted theft.

The analysis for a claim of insufficient evidence is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La. 1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Simple burglary is defined in La.R.S. 14:62 as “the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, or any cemetery, with the intent to commit a felony or any theft therein, other than as set forth in R.S. 14:60 [aggravated burglary].” Defendant challenges only the element of entering the property in question, complaining that the State relied on assumptions and claims by the property owner that the boxes found in his possession were inside the structure the last time they were seen by the owner. Defendant maintains there is no proof that the boxes contained anything or that they were removed from inside the building.

At trial, Hector testified that he owned a rental house located at 123 St. Margarite. The rental house was located near his residence at 129 St. Margarite. On September 20, 2007, the rental house was not occupied as he was in the process of remodeling the inside for future tenants. Hector passed by the rental house between 9:45 and 10:00 p.m. on his way home that evening and observed a person coming from the left side of the rental house toward the front gate carrying two boxes, one in each hand. A street light illuminated the entire area. Hector stopped his truck in the middle of the road, exited the truck, and proceeded to walk toward the suspect. An entrance to the house was located on the back side in the area where Defendant |swas spotted, but Hector confirmed that he did not see the suspect coming out of the house. Hector was about five feet away and could see the suspect’s face clearly. As the suspect walked out of the gate, Hector said, “Hey, what are you doing?” The suspect dropped the boxes and ran. Hector pursued the suspect but did not apprehend him.

When police arrived, Hector explained what happened. An officer recovered the boxes and dusted them for fingerprints. According to Hector, the boxes recovered were the same boxes he had seen the suspect carrying, and the boxes contained ceiling fans that he had purchased from Home Depot to install in the rental house. The boxes were located inside the rental house in the kitchen area.

Hector entered the rental house with the officer and could see where the suspect had pried open the back door. Also, he could see that the boxes were no longer in the house. Additionally, Hector was able to positively identify Defendant as the suspect from a lineup. Lastly, Hector asserted that he had not given Defendant permission to enter the house and remove the boxes. On cross-examination, Hector testified that he had been at the rental house the day before the incident. He also confirmed, again, that he did not see Defendant exit the house. Hector stated that the door had a regular doorknob with a key entry which had been pried open in the area where the lock goes into the strike plate.

Deputy Cynthia Segura with the Lafayette Sheriffs Department testified that on September 20, 2007, she was dispatched to Hector’s rental house. Hector advised that the house had been broken into and that he had seen the suspect. He explained that on his way home, he passed by the house and saw the suspect coming out of the house carrying boxes. When Hector screamed at the suspect, the suspect dropped the 1¿boxes and ran. Hector tried to apprehend the suspect but lost sight of him when he fell.

Deputy Segura observed the point of entry into the house, noting pry marks and scratches on the door and door frame. Hector pointed to the area where he had seen the suspect with the boxes. In a nearby ditch, Deputy Segura saw the boxes, which she described as ceiling fan boxes. After putting on gloves, Deputy Segu-ra removed the boxes from the ditch, touching only the edges, and placed them on the trunk of her vehicle. She then lifted fingerprints from the boxes. The fingerprints were introduced into evidence.

On cross-examination, Deputy Segura was questioned in greater detail about what was reported by Hector. According to Deputy Segura, Hector stated he had seen the suspect in the driveway of his rental house, leaving the house. She did not recall Hector reporting that he saw the suspect in the house.

Deputy Segura could not recall attempting to get fingerprints off the house where the suspect allegedly entered. If she did attempt to do so, she was not successful. Deputy Segura confirmed she had no fingerprints belonging to Defendant that were taken from the doorknob.

Detective Dwayne Angelle, also with the Lafayette Sheriffs Department, testified that the fingerprints lifted in the instant case were assigned to him for identification. The prints were entered into the Automated Fingerprint Identification System (AFIS), which provided a list of possible matches. Detective Angelle then made a positive match to Defendant, which was verified by another technician, Sergeant Kristen Bayard.

|fiIn support of his claim that the State did not show he had entered the house to take the boxes, Defendant refers to State v. Pryor, 306 So.2d 675 (La.1975).

In Pryor, the court addressed the issue of whether any evidence was introduced to prove that it was the defendant who committed the unauthorized entry upon which a burglary charge was based. A grocery store had been burglarized, and the only evidence introduced to connect the defendant with the crime was a latent fingerprint found on a filing cabinet in the store on the morning after the burglary. The defendant argued that the fingerprint, alone, did not prove that he was the person who made the unauthorized entry and theft on the date in question; it only proved that he touched the filing cabinet at some time in the past. The defendant also pointed out that he was a former employee and an occasional customer of the store. The court concluded, however, that the jury’s inference that the fingerprints were recently made was not mere speculation but was reasonably based. As such, the court found no evidence requiring a directed verdict or acquittal.

The facts of the instant case are distinguishable from those in Pryor in that the fingerprints were not found inside the property in question but on boxes located outside the property. Defendant then claims that the State did not show he had entered the house and retrieved the boxes.

Like the court in Pryor, however, this court finds that the jury’s inference that Defendant entered the house and then stole the boxes was reasonably based on the evidence adduced at trial, which consisted of more than Defendant’s fingerprints on the boxes in question and not mere speculation. First, Hector testified that the boxes, which contained fans, were recently purchased by him and were stored in the kitchen waiting to be installed during his renovation of the house. There was no evidence or | (¡testimony to suggest that the boxes were stored in a location outside the house or that the boxes did not contain ceiling fans. Next, Defendant was seen carrying the very same boxes away from the house, a fact which is not challenged by Defendant on appeal. Further, Hector was close enough to clearly see Defendant’s face and the area was well lit. Lastly, the fingerprints found on the boxes confirmed that Defendant had handled the boxes.

There is no merit in this assignment of error.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant argues that the trial court erred in allowing the State to offer a re-enactment of Defendant’s fingerprinting when the only purpose of doing so was to give undue and prejudicial evidence to the jury. Defendant maintains that the reenactment misled the jury and gave more weight to the evidence than it would have normally received.

Following a bench conference at trial, counsel for Defendant addressed for the record the State’s request to fingerprint Defendant in open court as follows:

MR. REGISTER: It’s my understanding at this point, Your Honor, that Mr. Babin wants to fingerprint my client in open court for purposes of soliciting evidence, and I do understand that he may have given you some type of correspondence which makes reference of various cases.
We would object to Mr. Babin fingerprinting my client in open court based upon his constitutional right. We would simply argue at this point that [Defendant] has a constitutional right not to testify and to force him in open court to be displayed as some type of a character to submit evidence would be in violation of his constitutional right in that it would be forcing him to testify and submit evidence against himself. That’s the basis of my objection.
MR. BABIN: Judge, the law is well settled, that that is non-testimonial evidence. Not only have I done it numerous times, I think that my witness has done it numerous times. There’s no doubt that that is allowed. It is not a violation of the Fifth Amendment. It’s clearly 17non-testimonial evidence. It is allowed. It’s done routinely in habitual offender proceedings. And I’m surprised — It’s not a surprise. The law is clear that you’re able to do that.
THE COURT: The objection is overruled.

On appeal, Defendant refers to La.Code Evid. art. 403, which provides, “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” Defendant also notes comment (d) under Article 403, which reads:

The risk of undue prejudice spoken of in this Article may be less substantial when the trier of fact is a judge rather than a jury, and thus sometimes evidence may properly be admitted in a non-jury trial that would be inadmissible in a jury trial. See Pugh & McClelland, “The Work of the Louisiana Appellate Courts for the 1975-1976 Term, Evidence,” 37 La.L.Rev. 575 (1977), reprinted in G. Pugh, Louisiana Evidence Law, 1978 Supp. at 1.

Defendant contends that the re-enactment of the fingerprinting exercise was prejudicial, because no one challenged Detective Angelle’s findings that the prints belonged to Defendant. Further, Defendant asserts there was no issue of staleness or contamination of the sample prints and no reason for the re-enactment other than to make a bigger impression on the jury regarding the quick and immediate identification an examiner could make.

Defendant finds distinguishable the facts in State v. Robertson, 358 So.2d 931 (La.1978), wherein the court found that the probative value of an in-court fingerprint procedure outweighed any prejudicial effects. The court in Robertson reasoned that the defendant’s identification as one of the perpetrators of a robbery was a material issue in dispute, and thus, his fingerprint identification was highly probative in placing him at the scene. Also, the court noted that the fingerprint on the card | ^obtained from the latent print files was not current and not clearly identified as belonging to the defendant. As such, the in-court fingerprint procedure was necessary to obtain a current fingerprint that undeniably belonged to the defendant.

Defendant also asserts that various types of in-court demonstrations have been barred from the courtroom. Defendant refers to State v. Rault, 445 So.2d 1203(La.), cert. denied, 469 U.S. 873, 105 S.Ct. 225, 83 L.Ed.2d 154 (1984), wherein defense counsel moved to introduce into evidence a four-hour tape recording of a hypnotic session by the defendant and a hypnotist to illustrate to the jury the hypnotic technique, the fact that the defendant had been in a hypnotic trance, and to negate suggestibility in the conduct of the session. In weighing the relative probative value of the proffered evidence against its possible prejudicial effect, the court determined that the tape recording and hypnosis demonstration were cumulative and of questionable validity; thus, the trial court did not abuse its discretion in disallowing the tape recording and hypnosis demonstration.

The Rault court also stated that the “[cjriteria for withholding permission include ‘considerations arising from the possible disruption of orderly and expeditious proceedings or from the lack of similarity between courtroom conditions and the actual conditions sought to be re-tested.’ State v. Mays, 315 So.2d 766, 768 (La.1975). See also State v. Hampton, 326 So.2d 364 (La.1976).” Id. at 1208. Defendant argues in the instant case that the original prints were recovered in the dark from the boxes situated on the hood of a patrol car. As such, Defendant maintains that the clean and dry conditions in the courtroom differed from the conditions in which the fingerprints were recovered.

InThe State argues on appeal that the fingerprinting of Defendant was not a reenactment, asserting that prior to that time, Defendant’s fingerprints were only matched using the police fingerprint database. To dispel any doubt that Defendant’s fingerprints were the same fingerprints lifted from the boxes, the State requested that Defendant’s fingerprints be taken in open court and directly compared to the fingerprints recovered from the boxes at issue. During his closing argument, the prosecutor explained why Defendant was fingerprinted during trial:

He [defense counsel] claims I made a show for you here when I printed this man. Well, that wasn’t a show. I wanted to make sure you knew. I didn’t want you just to hear Detective Angelle say we put it in a machine in AFIS and it came back with a print. I wanted you to know for sure. Well, you know for sure now. He took the man’s prints right here. I didn’t do it for show; I did it for evidence. I did it for you to feel comfortable to know there’s no doubt, a hundred percent, according to both detectives, according to both of them a hundred percent this man’s prints are on the box[.j

Additionally, the State maintains that the procedure utilized was specifically sanctioned and authorized by the supreme court in State v. Sheppard, 350 So.2d 615 (La.1977). In Sheppard, the defendant argued that the trial court erred in requiring him to be fingerprinted in the presence of the jury. The State requested the procedure to dispel any doubt that the defendant’s fingerprints were those compared to latent prints lifted from a plastic stereo dust cover found just outside the crime scene. In finding no error in the trial court’s ruling, the court reasoned:

It is well recognized that the privilege against self-incrimination relates only to testimonial compulsion. The privilege does not require an exclusion of the accused’s body as evidence when it may be material. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); State v. Wilson, 329 So.2d 680 (La.1976). More particularly, we have held that the privilege against self-incrimination is not violated by taking fingerprints in open court. State v. House, 320 So.2d 181 (La.1975).

Id. at 639.

| ipDefendant in the instant case does claim that his right against self-incrimination was violated, but instead maintains that the in-court fingerprinting was prejudicial. The State identified the relevance and probative value of fingerprinting Defendant in open court to dispel any doubt that Defendant’s fingerprints were the same fingerprints lifted from the boxes. Further, Defendant’s identification as the perpetrator of a burglary was a material issue in dispute, and thus, his fingerprint identification was highly probative in placing him at the scene. See Robertson, 358 So.2d 931. Although Detective Angelle’s finding that the prints belonged to Defendant was not challenged, Defendant does not show how the confirmation of same at trial by fingerprinting him in court was so prejudicial that it outweighed the probative value of the evidence. The State clearly set forth at trial its reason for using such evidence to confirm Defendant’s identity as the perpetrator, leaving no merit to Defendant’s argument that the fingerprinting was a re-enactment intended to sway the jury.

DECREE

Defendant’s conviction and sentence are affirmed.

AFFIRMED.


source: Caselaw Access Project

author: KEATY, Judge.

license: Public Domain

text:
    W.H. CARY, SR., ESTATE, L.L.C. v. Alden DUHON.
    No. 10-1526.
    Court of Appeal of Louisiana, Third Circuit.
    May 25, 2011.

      Vincent J. Saitta, Colomb and Saitta, Lafayette, LA, for Defendants/Appellants Alden Duhon and Jane Duhon.
    John B. Scofield, C. Eston Singletary, Kevin P. Fontenot, Scofield, Gerard, Sin-gletary & Pohorelsky, Lake Charles, LA, for PlaintiffiAppellee, W.H. Cary, Sr., Estate, L.L.C.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

| iThis is an appeal from a judgment granting a confirmation of default and attorney fees. Two questions are presented for our review. We are called upon to determine whether the grant of default judgment was proper against Defendants, and, if so, whether the grant of attorney fees against them was proper. In finding that the trial court was manifestly erroneous in confirming the default judgment, we reverse the trial court on all issues.

ASSIGNMENTS OF ERROR

1) That the Court’s granting of a Default Judgment based upon insufficient competent evidence is an error of law. The evidence by Affidavit was based in part on hearsay evidence and not personal knowledge. Also, a representative of petitioner did not testify.
2) That, in the alternative, the Trial Court did not make an inquiry as to the reasonableness of the attorney fees it awarded, which is contrary to the law.
3) That the awarding of contractual attorney fees in this proceeding is contrary to the law since the appellant, ALDEN DUHON, was not a member of the LLC at the time he was alleged to be trespassing.
4) That the failure to grant the Motion for New Trial was contrary to the law and evidence.
5) That JANE DUHON was never a member of the LLC and should not have been cast in Judgment for contractually based attorney fees.
6) That a tort action in trespass does not provide for attorney fees as an element of damages.
7) That in a default judgment proceeding involving a tort claim, a petitioner must provide oral testimony.

FACTS

This lawsuit is between an L.L.C. and a former member of the L.L.C. and his wife. W.H. Cary, Sr., Estate, L.L.C. (Cary L.L.C.) owns real property in Acadia | ¡.Parish that was individually owned prior to Cary L.L.C.’s formation in 1997. In 1997, the individual owners formed Cary L.L.C. and transferred to Cary L.L.C. their ownership interests.

Defendant Alden Duhon’s (Alden) mother was one of the founding members of Cary L.L.C., and, when she passed away, Alden inherited a 1.6% ownership interest in the L.L.C. Cary L.L.C. requires that all interested persons apply for membership to the L.L.C. Alden applied for membership in 2001 and was subsequently admitted as a member.

Cary L.L.C. then formed the “W.H. Cary, Sr. Estate, LLC Hunting and Fishing Club” (the hunting club) covering the property belonging to the L.L.C. In order for any member of Cary L.L.C. to use the property, including to hunt or fish on it, they had to be a member of the hunting club. Alden applied for membership to the hunting club and was approved.

While a member, Alden allegedly violated the hunting club rules on multiple occasions, and, on August 1, 2007, Alden’s membership in the hunting club was revoked. Alden allegedly continued to use the property and to allow others to use it. On December 31, 2008, Alden’s membership in Cary L.L.C. was revoked. Nevertheless, Alden allegedly continued to use the property and to allow others to use it, giving rise to the instant lawsuit.

PROCEDURAL HISTORY

Cary L.L.C. filed suit against Alden and his wife, Jane Duhon (Jane), on June 9, 2010, seeking an injunction prohibiting them from using the property owned by Cary L.L.C. for any purpose, from bringing unauthorized persons onto the | {¡property, and from telling third parties they have permission to use the property. Cary L.L.C. also sought damages, attorney fees, and costs.

Alden and Jane were personally served on June 21, 2010. An answer was not filed and a preliminary default was entered against them on August 5, 2010. On September 7, 2010, the preliminary default was confirmed in open court. The trial court signed a judgment granting the injunction against Alden and Jane, ordering them to pay $17,812, and casting them with all costs of the proceeding.

Alden and Jane filed a motion for new trial, arguing that the judgment was contrary to the law and evidence in that the judgment awards attorney fees that are clearly excessive without any law to support the award or any evidence or legal authority for the amount awarded. Their motion was denied on September 22, 2010, with a note from the trial court that “the judgment does not award attorneys fees.” They are now before us on appeal from the September 7 judgment. Cary L.L.C. answered the appeal, seeking additional attorney fees and costs.

DISCUSSION

Default Judgment

Our review of a default judgment is restricted “to a determination of the sufficiency of the evidence offered in support of the judgment,” which is a question of fact subject to the manifest error standard of review. Wagner v. Alford, 09-1338, p. 4 (La.App. 3 Cir. 4/7/10), 34 So.3d 1018, 1022.

Louisiana Code of Civil Procedure Articles 1701 and 1702 govern default judgments. Article 1701 allows a default judgment to be entered against properly served defendants if they do not answer a petition within the time prescribed by law, Land Article 1702 sets forth the evidentia-ry requirements necessary for confirming a default judgment. Specifically, Article 1702(A) requires that a judgment of default be confirmed by proof of the demand “sufficient to establish a prima facie case.” Article 1702(B) sets forth the evidentiary requirements for proving a prima facie case sufficient to confirm a default judgment. These requirements differ depending on the nature of the obligation, be it conventional or delictual. If the obligation is conventional, a petitioner need only submit “affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case.” La.Code Civ.P. art. 1702(B)(1). If the obligation is delic-tual, however, the “testimony of the plaintiff with corroborating evidence ... shall be admissible, self-authenticating, and sufficient proof of such demand.” La.Code Civ.P. art. 1702(B)(2). A conventional obligation is “an obligation that results from actual agreement of the parties; a contractual obligation.” Black’s Law Dictionary, 1102 (7th ed.1999). A delictual obligation is an obligation constituting a tort. Bryan A. Garner, A DictionaRY of Modern Legal Usage, Second Edition, 262 (Oxford University Press 2001) (1987).

“A plaintiff seeking to confirm a default must prove both the existence and the validity of his claim. A default judgment cannot be different in kind from what is demanded in the petition and the amount of damages must be proven to be properly due.” Arias v. Stolthaven New Orleans, L.L.C., 08-1111, p. 7 (La.5/5/09), 9 So.3d 815, 820 (footnote omitted) (citing La.Code Civ.P. art. 1703). In its petition, Cary, L.L.C. demanded an injunction against Alden and Jane for trespass and damages incurred therefrom.

| ¿Trespass, a tort, is a delictual obligation. Thus, in order to confirm a default judgment for a delictual obligation, the plaintiff should testify and offer corroborating evidence to meet their burden of proving a prima facie case. La.Code Civ.P. art. 1702(B)(2). At the confirmation hearing in the instant case, counsel for Cary, L.L.C. introduced the affidavit of Patrick H. Johnson, manager and authorized representative of Cary, L.L.C. Attached thereto were various exhibits purporting to establish a prima facie case in favor of Cary, L.L.C. No one was called to testify.

Johnson’s affidavit does not state that he personally witnessed Alden or Jane trespassing on the property, nor does it state that he personally witnessed third parties trespassing on the property who allegedly obtained permission to do so from Alden or Jane. Thus, Cary, L.L.C. submitted an affidavit containing hearsay as proof of the Duhons’ alleged trespass. “Hearsay evidence does not sustain [the] burden of proving a prima facie case.” Ducharme v. Guidry, 392 So.2d 755, 757 (La.App. 3 Cir.1980). Further, corroborating evidence was not introduced, as plaintiffs failed to testify in this matter. Finally, Johnson’s affidavit did not establish actual damage sustained by Cary, L.L.C. for the Duhons’ alleged trespass, which is an essential element that must be proved before a prima facie case for trespass can be established. See Lloyd v. Hunt Exploration, Inc., 413 So.2d 327 (La.App. 3 Cir.1982). Accordingly, Cary, L.L.C. failed to meet the burden necessary to prove a pri-ma facie case sufficient to confirm a default judgment on a delictual obligation.

As the evidence introduced was insufficient, the trial court was manifestly erroneous in confirming the default judgment in favor of Cary, L.L.C. We reverse the judgment granting the confirmation of default in its entirety. Because we have found that the confirmation of default judgment was improper and have reversed the | ¿judgment in its entirety, we need not address the remaining assignments of error. We deny Cary, L.L.C.’s request for additional attorney fees for work done on appeal.

DECREE

For the foregoing reasons, we reverse the judgment dated September 7, 2010, in its entirety and remand for further proceedings. Costs are cast to W.H. Cary, Sr., Estate, L.L.C.

REVERSED AND REMANDED.

      . A review of the transcript, as well as Appel-lee’s brief, shows that this sum was for contractually-based attorney fees.


author: RANDOLPH, Justice,

text:
    M. Curtiss McKEE and Ann Craft McKee v. BOWERS WINDOW & DOOR COMPANY, INC. and Weather Shield Manufacturing, Inc. M. Curtiss McKee and Ann Craft McKee. v. Weather Shield Manufacturing, Inc. and Bowers Window & Door Company, Inc.
    Nos. 2009-CA-01314-SCT, 2009-CA-01315-SCT.
    Supreme Court of Mississippi.
    April 21, 2011.
    Rehearing Denied July 21, 2011.

      Dennis L. Horn, Shirley Payne, Madison, attorneys for appellants.
    J. Wade Sweat, Marisa Campbell Atkinson, Timothy Dale Crawley, Mitzi Leasha George, Ridgeland, attorneys for appel-lees.
   RANDOLPH, Justice,

for the Court:

¶ 1. In 1998, the McKees entered into a home-construction contact with Ellington Homes, Inc. (“Ellington Homes”). Thereafter, the president of Ellington Homes instructed the McKees to look at windows at Bowers Window & Door Co., Inc. (“Bowers Window”). At Bowers Window, a salesman showed the McKees various types of windows. Ann McKee told him that she preferred wooden windows. The salesman cautioned the McKees that wooden windows would need to be maintained because “wood rots.... ” Ultimately, the McKees selected wooden windows designed and manufactured by Weather Shield Manufacturing, Inc. (“Weather Shield”).

¶2. The windows were installed by either Ellington Homes or its subcontractors, with no involvement by either Bowers Window or Weather Shield. In August 1999, the McKees moved into their new, lakefront home. Soon thereafter, the McKees experienced a multitude of problems related to construction, including leaking windows. By the spring of 2002, the wooden windows were rotting. Subsequently, the home underwent a significant reconstruction to remedy its various problems.

¶3. In September 2002, the McKees filed suit against Ellington Homes, Weather Shield, and Bowers Window. While acknowledging that the home had multiple problems which did not pertain to either Weather Shield or Bowers Window, the McKees alleged that the window manufacturer and the window seller were liable because the wooden windows were “a defective product in that they have leaked ever since they were placed in the house.” After the circuit court entered a pretrial order excluding expert testimony by the McKees’ designated expert regarding the defectiveness of the windows, both Weather Shield and Bowers Window filed “Motions for Summary Judgment.” Following separate hearings, the circuit court granted summary judgment in favor of Weather Shield and Bowers Window.

FACTS

¶4. On August 28, 1998, the McKees entered into a home-construction contract with Ellington Homes. Thereafter, according to Ann McKee, the sole proprietor of a realty company, the McKees were instructed by James R. Ellington, the president of Ellington Homes, “to go and look at windows at Bowers [Window].” The deposition testimony of Ann McKee provided that the salesman at Bowers Window, Mark McKee (no relation), did not recommend particular windows, but instead “just discussed different windows and ... window surface.... ” Mark McKee showed the McKees various types of windows, including vinyl, metal, and wooden windows. According to Ann McKee, “I probably said that we had come from a house that had wood windows, and I liked wood windows.” (Emphasis added.) This was corroborated by the deposition testimony of Curtiss McKee, which provided that “I think Ann said that she liked wood, that the metal wasn’t as pretty.” According to Ann McKee, the salesman responded “that if we wanted wood, we’d have to maintain them because wood rots, and ... I remember saying, Tes, we’ve had wood windows, and we maintain them.’ ” While Ann McKee could not recall how the specific windows were selected, Curtiss McKee stated that the McKees were informed by Mark McKee that the Weather Shield windows which were selected were “top of the line.”

¶ 5. The wooden windows were designed and manufactured by Weather Shield and, in December 1998 and January 1999, were delivered to Bowers Window. Later, the windows were transported to the construction site where, according to Aim McKee, they were “safely stored out of the weather in the house garage.” The installation of the windows was performed by either Ellington Homes or one of its subcontractors, with no involvement by either Weather Shield or Bowers Window. The McKees were not present when the windows were installed.

¶ 6. On or about August 20, 1999, the McKees began residing in the lakefront home. According to Ann McKee, following “the first really heavy rain, we had water that went from the window near Curtiss’s desk area.... We were standing in water.” Over the next several months, the McKees claimed that the windows had leaked whenever it rained, and that Ellington Homes repeatedly had sent employees to inspect the windows. According to Ann McKee, Ellington initially believed the problem was the caulking and the rubber seals, then finally informed the McKees that he had no further solutions.

¶ 7. In the spring of 2002, the McKees contacted Bill Birdsong, Jr., to view their home and determine if it needed to be painted or pressure-washed. Birdsong observed the trim and fascia, and noticed that the windows were rotting “along the bottom, along the stool, the window sill on the outside, and about four or five inches up on each side.... ” Birdsong did not “tear the windows open” to see if there was any moisture barrier around them or inspect whether the windows were properly installed and sealed and/or caulked. Birdsong did not even attempt to open any of the windows.

¶ 8. Birdsong did not proceed with painting the home and “[l]eft them to decide what to do.” Subsequently, the home underwent major reconstruction, which, according to Curtiss McKee, cost $528,000. Residential builder Jeb Stewart was involved in the reconstruction, and provided deposition testimony that it included “demoting] the house, and tak[ing] the EIFS[] off the outside of the house, and go[ing] back with real stucco and re-plac[ing] the windows,[] and redo[ing] the interior where the damage was.” According to Stewart, “almost every” wooden window “was rotten.” Stewart further stated that there was no waterproofing around any of the windows, no moisture barrier placed above some windows, and that some windows were installed using “[p]oor framing technique.”

¶ 9. Additionally, the home of the McKees’ next-door neighbors (one of whom was Ann McKee’s cousin) was also constructed by Ellington Homes. According to the McKees, that home had “similar ... leaking, intruding water[,]” and “just ... multiple problems.... ” The McKees further stated that they did not believe the windows used in that home were manufactured by Weather Shield.

¶ 10. In their Complaint, the McKees acknowledged that their home had numerous problems which did not implicate either Weather Shield or Bowers Window. Count Two of the Complaint stated that the windows manufactured by Weather Shield and purchased from Bowers Window were “a defective product in that they have leaked ever since they were placed in the house.” (Emphasis added.) Count Three of the Complaint provided that the defendants were “jointly and severally liable for the leaking into the house and the damage caused thereby to the house structure[,]” which included reference to defects “proximately caused” by “the defective windows manufactured by [Weather Shield] and sold by [Bowers Window].”

¶ 11. On April 3, 2007, the McKees filed their “Designation of Experts.” Regarding the defectiveness of the windows, the McKees designated Birdsong as their expert. Thereafter, Weather Shield filed a “Motion In Limine to Conduct Daubert [] Hearing and Exclude Expert Opinion Testimony of Bill Birdsong,” which was joined by Bowers Window. Following hearing, the circuit judge concluded that, while Birdsong “would be qualified as a lay person to give an opinion[,]” it would be “very difficult to find that ... the decisions of [Kumho Tire Co. v. Carmichael, 526 U.S. 187, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) ], [Miss. Transp. Comm’n v. McLemore, 863 So.2d 31 (Miss.2003) ], ... would qualify him under the facts of this case and with his testimony to give testimony as an expert.” The circuit court then entered an “Order Granting Motion to Exclude Expert Witness Testimony of William Birdsong.”

¶ 12. Subsequently, Bowers Window filed a “Motion for Summary Judgment” which maintained that the McKees could not establish “the necessary elements to prove the wooden windows purchased from Bowers [Window] were defective[,]” or “meet their burden of proof with regard to their negligence claims....” Following hearing, the circuit court granted Bowers Window’s “Motion for Summary Judgment.”

¶ 13. Next, Weather Shield filed a “Motion for Summary Judgment” which maintained that the McKees had failed to establish that the windows had been “designed in a defective manner” when they had left Weather Shield’s control, or that “the ‘failure’ is anything more than an inherent characteristic of that product— the fact that wood rots.” Following hearing, the circuit court entered an “Order Granting Weather Shield Manufacturing, Inc.’s Motion for Summary Judgment.”

¶ 14. Subsequently, the McKees timely filed “Notice of Appeal” regarding the “Order Granting Motion to Exclude Expert Witness Testimony of William Birdsong,” the “Order Granting Bowers Window and Door Co., Inc.’s Motion for Summary Judgment,” and the “Order Granting Weather Shield Manufacturing, Ine.’s Motion for Summary Judgment.” This Court consolidated the appeal of those rulings.

ISSUES

¶ 15. This Court will consider:

(1) Whether the circuit court abused its discretion in excluding Bill Birdsong from providing expert testimony.
(2) Whether the circuit court erred in granting summary judgment in favor of Weather Shield and Bowers Window.

ANALYSIS

I. Whether the circuit court abused its discretion in excluding Bill Birdsong from providing expert testimony.

¶ 16. “[T]he admission of expert testimony is within the sound discretion of the trial judge.... Therefore, the decision of a trial judge will stand ‘unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion.’ ” Kilhullen v. Kansas City S. Ry., 8 So.3d 168, 172 (Miss.2009) (quoting McLemore, 863 So.2d at 34). See also Moss v. Batesville Casket Co., Inc., 935 So.2d 393, 404 (Miss.2006) (citing Tunica County v. Matthews, 926 So.2d 209, 216 (Miss.2006)) (“[a]s the trial court operates as the gatekeeper as to the admissibility of expert testimony, we examine the trial court’s decision under an abuse of discretion standard of review”).

¶ 17. Mississippi Rule of Evidence 702 states that:

[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Miss. R. Evid. 702. “This rule makes it necessary for a trial court to apply a two-pronged inquiry when evaluating the admissibility of expert testimony: (1) is the witness qualified, and (2) is the testimony relevant and reliable?” Watts v. Radiator Specialty Co., 990 So.2d 143, 146 (Miss.2008) (citing McLemore, 863 So.2d at 35).

¶ 18. Regarding qualifications, “a witness need not be a specialist in any particular profession to testify as an expert. ... The scope of the witness’s knowledge and experience, and not any artificial classification, governs the question of admissibility.” Univ. of Miss. Med. Ctr. v. Pounders, 970 So.2d 141, 146 (Miss.2007) (citations omitted). See also Calvetti v. Antcliff, 346 F.Supp.2d 92, 110-11 (D.D.C.2004) (quoting Lohrenz v. Donnelly, 223 F.Supp.2d 25, 35-36 (D.D.C.2002)) (“An individual may be deemed an expert based on ‘intense practical experience’ in the particular field.”); Cain v. Mid-South Pump Co., 458 So.2d 1048, 1050 (Miss.1984) (“[F]ormal education is not the only means of becoming an expert in a field. A witness may qualify to give an expert opinion through his experience only.”). As to relevance, Mississippi Rule of Evidence 401 “favors admission of the evidence if it has any probative value[,]” and “[t]he threshold for admissibility of relevant evidence is not great.” Investor Res. Servs., Inc. v. Cato, 15 So.3d 412, 417 (Miss.2009) (quoting McLemore, 863 So.2d at 40). Finally, in its gate-keeping role, the trial court must also “examine the reliability” of the expert’s opinion. Janssen Pharmaceutica, Inc. v. Bailey, 878 So.2d 31, 60 (Miss.2004). “In evaluating reliability, the court’s ‘focus ... must be solely on principles and methodology, not on the conclusions that they generate.’ Daubert, 509 U.S. at 595, 113 S.Ct. 2786.... Expert testimony admitted at trial must be based on scientific methods and procedures, not on unsupported speculation or subjective belief.” Hubbard v. McDonald’s Corp., 41 So.3d 670, 675 (Miss.2010) (emphasis added). See also Gulf South Pipeline, Co. v. Pitre, 35 So.3d 494, 499 (Miss.2010) (“[M]erely speculative expert opinions should not be admitted.”); Edmonds v. State, 955 So.2d 787, 792 (Miss.2007) (“[A] court should not give ... an expert carte blanche to proffer any opinion he chooses.”); McLemore, 863 So.2d at 37 (quoting Kumho Tire, 526 U.S. at 157, 119 S.Ct. 1167) (“[Neither Daubert nor the Federal Rules of Evidence requires that a court ‘admit opinion evidence that is connected to existing data only by the ipse dixit of the expert,’ as self-proclaimed accuracy by an expert [is] an insufficient measure of reliability”).

1119. Regarding the defectiveness of the windows, the McKees designated Birdsong, a “home building contractor[,]” who was:

expected to testify that the wooden windows in the McKees’ house, which windows are on a lake, were not appropriate for a location with that much moisture and humidity. Those wooden windows did not meet the standard in the industry for that location and caused rot and damage to the McKees’ house.... [Birdsong] is also expected to testify that appropriate windows would not have rotted within two years.[]

¶ 20. At his deposition, Birdsong stated that he had twenty-four years of experience as a general contractor in the metro Jackson area. Birdsong acknowledged that he had never worked for a window manufacturer or window seller; had no special education, training, or experience specific to windows; had no professional resume or curriculum vitae; and had never previously testified as an expert witness in any capacity. Moreover, Birdsong conceded that, although he had been retained by the McKees, he had prepared no notes or written reports regarding his one-time, exterior observations of the McKees’ windows and that, in formulating his opinions, he had reviewed no documents from other experts or sources, such as books, magazines, treatises, articles, or other publications.

¶ 21. According to Birdsong, the “bulk of the problem” with the windows was water intrusion, as “water came through the bottom seal of the window, the sash, and probably, I assume that it went from there to in behind the stucco.... ” (Emphasis added.) Yet Birdsong admittedly made only a one-time, exterior inspection of the windows in the spring of 2002, in which he did not check for underlying moisture barriers or proper sealing and/or caulking. Birdsong also did not know if the wooden windows rotted because they “didn’t get painted or primed or what happened .... ” Instead, Birdsong opined that finger-jointed, exterior, wooden windows “ought to be illegal” in central Mississippi, as even if they were properly primed and painted, “it’s all going to rot.” With that said, Birdsong acknowledged that many Mississippi homes have such wooden windows; that wooden windows manufactured by Anderson, Pella, and Marvin are sold in Mississippi; and that he knew of no industry standard or building code which prohibited the use of wooden windows. Yet according to Birdsong, such windows “[d]on’t meet my standard ” for residential construction “[ajnywhere in Mississippi” based upon “Birdsong common sense [,]” and that metal or vinyl windows would not have rotted within two years. (Emphasis added.) But Birdsong added that he had never published his personal standard regarding the use of wooden windows in Mississippi and was aware of no other general contractor who had adopted his personal standard.

¶ 22. Thereafter, Weather Shield filed a “Motion In Limine to Conduct Daubert Hearing and Exclude Expert Opinion Testimony of Bill Birdsong,” which Bowers Window joined. At the motion hearing, Birdsong testified that he had previously installed, repaired, or replaced “thousands” of windows, and that he had built or manufactured “under a hundred” windows. According to Birdsong, during his 2002 exterior observation of the McKees’ home, he noticed rot in “more than ten and less than fifty” windows. Regarding the underlying problem, Birdsong “couldn’t say whether it was the priming or whether it was not flashed or ... what, other than it just deteriorated and when it leaked from the bottom, it leaked right onto the house.” But Birdsong further stated that finger-jointed, exterior, wooden windows were “as cheap as you can get” and were unsuitable for the McKees’ home given its proximity to the lake and its general geographic location in central Mississippi. Birdsong estimated that “ninety percent of finger-joint exterior windows that I’ve looked at over twenty-four years have had problems[,]” and reasserted that “the only time I would [install finger-jointed, exteri- or, wooden windows] is if ... the homeowner themselves said this is what I want.” Yet Birdsong again acknowledged that finger-jointed, exterior, wooden windows have “been accepted” in the industry and that such windows have been used in thousands of Mississippi homes.

¶ 28. The circuit judge summarized Birdsong’s testimony as follows, “he was involved with construction, evaluation of homes of all values, ... and he finally ... gave an opinion that the ... finger-joint window should be outlawed and not allowed although ... it is still in use.” Based thereon, the circuit judge concluded that, while Birdsong “would be qualified as a lay person to give an opinion[,]” it would be “very difficult to find that ... the decisions of [Kumho Tire, 526 U.S. at 137, 119 S.Ct. 1167], [McLemore, 863 So.2d at 31], ... would qualify him under the facts of this case and with his testimony to give testimony as an expert.” The circuit court then entered an “Order Granting Motion to Exclude Expert Witness Testimony of William Birdsong.”

¶ 24. In evaluating the admissibility of Birdsong’s proposed expert testimony, this Court finds a myriad of problems at each level of the analysis. Without question, “[a] witness may qualify to give an expert opinion through his experience only.” Cain, 458 So.2d at 1050. See also Miss. R. Evid. 702 (a witness may be “qualified as an expert by ... experience. ...”); Cain, 458 So.2d at 1050 (“[A] water well driller with 23 years of experience would qualify as an expert in the field and should be able to estimate how much it costs to replace a water well pump or motor.”); Ford Motor Co. v. Dees, 223 So.2d 638, 641 (Miss.1969) (“part owner and manager of a large automotive repair shop” with thirty years of experience qualified “to testify as an expert on the construction and working of the steering mechanism of a pickup truck and also the manner in which the cab was bolted to the chassis”); Ford Motor Co. v. Cockrell, 211 So.2d 833, 838 (Miss.1968) (truck mechanic with thirty-five years of experience and “eight mechanics in his employ” deemed “qualified as an expert witness” in a truck accident case). Here, Birdsong’s twenty-four years of experience as a general contractor likely would have qualified him as an expert in the broad field of general contracting. But Birdsong was not offered as an expert in that general field, but rather in the specific field of window manufacture and design, assessing the purported defectiveness of the subject windows. With respect to windows, while Birdsong’s experience as a general contractor included installation, repair, and replacement, along with the manufacture of “under a hundred” windows, even he acknowledged that he had no special education, training, or experience specific to windows, and he had never worked for a window manufacturer or seller. Based thereon, this Court finds this case fundamentally distinguishable from those cases in which a witness was qualified as an expert by experience. See Cain, 458 So.2d at 1050; Dees, 223 So.2d at 641; Cockrell, 211 So.2d at 838. Furthermore, the limited nature of Birdsong’s one-time, exterior observation of the windows in the spring of 2002, see swpra ¶ 21, calls into question his specific qualifications to testify as either a layperson or expert regarding the defectiveness of those windows. The circuit court determined that Birdsong’s lack of experience and/or credentials in the field of window manufacture and design did not sufficiently qualify Birdsong to provide expert testimony. Based on the record before us, we cannot conclude that the learned circuit judge abused his discretion in excluding Birdsong’s opinion. See Kil-hullen, 8 So.3d at 172. But even assuming arguendo that Birdsong was qualified, his testimony lacked both sufficient relevance and reliability.

¶25. Regarding relevance, Birdsong’s testimony was predicated upon his onetime, exterior observation of the windows in the spring of 2002. In that observation, Birdsong did not check for underlying moisture barriers or proper sealing and/or caulking. See supra ¶ 21. Therefore, Birdsong can offer evidence only that the windows rotted. But the “fact that is of consequence to the determination of the action” is not that the windows rotted (that fact is not in dispute), but the source of the rot. Miss. R. Evid. 401. This Court fails to see what evidence Birdsong can present that aids that inquiry.

¶ 26. As to reliability, Birdsong opined that the windows were defective, as finger-jointed, exterior, wooden windows should be “illegal” in central Mississippi. In formulating this opinion, Birdsong admittedly reviewed no outside sources and could cite no industry standards or building codes in support thereof. In fact, Birdsong acknowledged that thousands of homes in Mississippi have wooden windows. Yet, in Birdsong’s own words, his opinion was based upon “my standard” and “Birdsong common sense.” As such, this Court summarily concludes that this is nothing more than “unsupported speculation or subjective belief,” lacking any semblance of an underlying “reliable principle] and method].” Hubbard, 41 So.3d at 675; Miss. R. Evid. 702. As Weather Shield argues, Birdsong effectively utilized “no methodology, much less a scientifically recognized one[.]” Therefore, even assuming arguen-do that the circuit court abused its discretion on the qualification issue, which it did not, the application of relevance and reliability principles also would call for the exclusion of Birdsong’s expert testimony.

II. Whether the circuit court erred in granting summary judgment in favor of Weather Shield and Bowers Window.

¶ 27. “This Court’s well-established standard of review for a trial court’s grant or denial of summary judgment is de novo.” Covington County Sch. Dist. v. Magee, 29 So.3d 1, 3-4 (Miss.2010) (citations omitted). According to this Court:

[sjummary judgment is appropriate where “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.” Miss. R. Civ. P. 56(c). “The moving party has the burden of demonstrating that no genuine issue of material fact(s) exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact.” [Waggoner v. Williamson, 8 So.3d 147, 152-53 (Miss.2009) ].

Magee, 29 So.3d at 4. However, “[t]he party opposing the motion must be diligent and may not rest upon allegations or denials in the pleadings but must set forth specific facts showing there are indeed genuine issues for trial.” Williams v. Bennett, 921 So.2d 1269, 1272 (Miss.2006) (citations omitted).

(A) Weather Shield

¶ 28. When Weather Shield filed a “Motion for Summary Judgment,” it maintained that the “only claim” against it was “one of ‘defective design’.” (Emphasis added.) According to Weather Shield:

even if there exists evidence of the “failure” of the product, there is no evidence that the product left the control of the manufacturer in a defectively-designed manner, or that the “failure” is anything more than an inherent characteristic of that product — the fact that wood rots. This is true, particularly where, as here, according to all evidence adduced in discovery ..., these wooden windows were not properly primed, caulked or flashed at the time they were installed by [Ellington Homes] and/or [its] retained subcontractors.

Weather Shield further noted that Birdsong, whose expert testimony had been excluded, “was the only witness offered by the [McKees] who would have submitted any evidence that the subject windows were defective and that such defect was the cause of any of the [McKees’] damages.”

¶ 29. At the motion hearing, the circuit judge asked counsel for the McKees, “how would you ever prove your products liability case without an expert?” Counsel for the McKees responded that “[tjhere’s an issue about the composition of that wood and the fact that it rotted in two years as Weather Shield alleged it would if it’s completely untreated.” According to counsel for the McKees, Weather Shield had not “come forward and indicated with any proof whatsoever that these windows were adequately treated.” The circuit court rejected the McKees’ argument and entered an “Order Granting Weather Shield Manufacturing, Inc.’s Motion for Summary Judgment.”

(1) Product liability

¶30. “In 1993, the Mississippi legislature promulgated the Products Liability Act and codified what had formerly been common law strict liability.... Since that time products liability claims have been specifically governed by statute.... ” Williams, 921 So.2d at 1273 (citation omitted). As stated in Williams:

the legislature has codified the requirements unique to a design defect claim and laid out an explicit blueprint for claimants to prove when advancing such a claim. When claimants do not fulfill their statutory obligation, they leave the courts no choice but to dismiss their claims because they fail to offer a key element of proof requisite to the court’s determination of whether the claimant has advanced a valid claim under the statute.

Id. at 1277.

¶31. In a product liability suit, “proof of injury alone is insufficient, and ... more is needed to satisfy the [claimant’s] burden.” Forbes v. Gen. Motors Corp., 935 So.2d 869, 880 (Miss.2006) (citing Creel v. Gen. Motors Corp., 233 So.2d 105, 109 (Miss.1970)). See also Coleman v. Danek Med., Inc., 43 F.Supp.2d 637, 646 (S.D.Miss.1999) (quoting Cather v. Cathe ter T h. Corp., 753 F.Supp. 634, 638-39 (S.D.Miss.1991)) (“Mere proof of damage following the use of a product is not sufficient to establish liability.”). In order for the McKees’ design-defect claim to survive Weather Shield’s “Motion for Summary Judgment,” they must establish that, when the windows left Weather Shield’s control, there are genuine issues of material fact regarding whether the windows were (1) “designed in a defective manner;” (2) which rendered them “unreasonably dangerous” to the McKees; (3) that the “defective and unreasonably dangerous condition ... proximately caused” the McKees’ damages; (4) that the damages were not caused by an “inherent characteristic” of the wooden windows which “cannot be eliminated without substantially compromising the product’s usefulness or desirability” and which an “ordinary person” would recognize; (5) that Weather Shield knew or should have known of the “danger that caused the damage;” and (6) that “there existed a feasible design alternative that would have to a reasonable probability prevented the harm” without also “impairing the utility, usefulness, practicality or desirability of’ the windows. Miss.Code Ann. § ll-l-63(a), (b), & (f) (Rev.2002).

¶ 32. Relying upon PPG Industries, the McKees contend that “[s]ince the ... windows rotted within two (2) years, Weather Shield is admitting that it sold what amounted to untreated, unprotected wood that was destined to rot within two years.” At a minimum, the McKees assert that there exists a “material issue of fact as to whether the window companies had chosen to palm off on the homeowners the company’s old, defective windows that had remained in their inventory from the time [of] the PILT seasoned windows that had failed in innumerable homes.... ”

¶ 33. Weather Shield responds that PPG Industries is a “red herring” and that the “sole support” for the McKees’ “defective design theory was Bill Birdsong’s personal opinion that no one in Mississippi ought to have wooden residential windows.” Weather Shield asserts that this was insufficient to satisfy the McKees’ design-defect burden of proof, because Birdsong was “unable to testify as to whether the windows were defective when they left Weather Shield, whether they were defective when they left Bowers [Window], or whether they were defective at all.” Furthermore, Weather Shield maintains that the McKees failed to present evidence “that any alleged defect proximately caused the damage” to their home. Finally, Weather Shield contends that an “inherent characteristic” of wood is that it rots, and such “cannot be eliminated without substantially compromising the product’s usefulness or desirability.”

¶ 34. This Court finds that the McKees offer only “[m]ere proof of damage following the use of’ the Weather Shield windows. Coleman, 43 F.Supp.2d at 646 (quoting Cather, 753 F.Supp. at 638-39). The fact that their windows leaked and rotted is insufficient for this design-defect claim to survive Weather Shield’s “Motion for Summary Judgment.” This is particularly true since Birdsong performed only a single, exterior observation of the windows in the spring of 2002, in which he failed to check for underlying moisture barriers or proper sealing and/or caulking; Stewart provided deposition testimony that there was no waterproofing around any of the windows, no moisture barrier above some windows, and “[pjoor framing technique” in the window installation; it is unclear whether the windows were painted within six months of installation, as required to prevent rotting; and the home of the McKees’ next-door neighbors, constructed by Ellington Homes, also experienced leaking windows, but did not have Weather Shield windows.

¶ 35. Regarding the McKees’ argument on the alleged use of improperly treated “PILT seasoned windows,” this Court finds an absence of “specific facts showing there are indeed genuine issues for trial.” Williams, 921 So.2d at 1272. A nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts[,]” which the McKees have failed to do. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

¶ 36. In sum, even giving the McKees “the benefit of the doubt concerning the existence of a material fact[,]” this Court concludes that summary judgment was properly entered in favor of Weather Shield. Magee, 29 So.3d at 4.

(B) Bowers Window

¶ 37. In its “Motion for Summary Judgment,” Bowers Window maintained that the McKees could not “prove the necessary elements to prove the wooden windows purchased from Bowers [Window] were defective[,]” or “meet their burden of proof with regard to their negligence claims....” At the motion hearing, counsel for Bowers Window argued that “[w]hen it boils down to it, we sold them some wood windows. [Ann] McKee talked about that she had had wood windows before, and she liked them ... and ... that’s what it comes down to.” In granting Bowers Window’s “Motion for Summary Judgment,” the circuit judge focused upon Mississippi Code Sections 11-1-63(a)(i)(3) and (f)(i) & (ii), then stated:

[a]ll of us who are adult owners of ... frame homes with windows would recognize that the great majority of the homes in this state have wooden windows. The [McKees] should have known that in the location of their home near a lake near the water would be more susceptible to rot and deterioration than a home located somewhere else; yet they chose the site of their home. The [McKees] ... failed to show a material matter to be developed.... I fail to see how I can he advised of a defective product, and with advice of that defect, turn around and say that I want it anyway, and then later on say I’m entitled to damages because of that defect.

(Emphasis added.)

(1) Product liability

¶ 38. Applying the analysis in supra ¶¶ 34-36, as to Bowers Window, and adding that no proof was adduced that Bowers Window “exercised substantial control over ... the design, testing, manufacture, packaging or labeling of the product that caused the harm[,] ... altered or modified the product,” or “had actual or constructive knowledge of the defective condition of the product at the time [it] supplied the product[,]” this Court concludes that summary judgment was properly entered in favor of Bowers Window on the McKees’ product-liability claims. Miss.Code Ann. § 11-1-63(h) (Rev.2002).

(2) Negligence

¶ 39. The McKees’ negligence claim required that they prove, by a preponderance of the evidence, “(1) duty, (2) breach of that duty, (3) nexus, causation or proximate cause, and (4) damages.” Moss, 935 So.2d at 406 (citing May v. V.F.W. Post 2539, 577 So.2d 372, 375 (Miss.1991)).

¶40. According to the McKees, “[flor these windows to have rotted within a two year time frame, there was negligence involved.” Bowers Window responds that it “did not have anything to do with the actual construction of [the McKees’] house[,]” and “[t]he mere act of selling windows chosen by the [McKees] is not an act of negligence.[] As admitted by [Birdsong], ... wooden windows were sold throughout Mississippi.” In sum, Bowers Window contends that the McKees “raise lots of questions about the windows but never have presented credible evidence to support their claims or create an issue for a jury.”

¶ 41. This Court finds that the McKees’ negligence claim “fail[s] to present any new discussion or claim that does not relate back to the ... products liability claim which ha[s] previously been determined to be legally insufficient to survive summary judgment.” Moss, 935 So.2d at 406. Thus, this Court concludes that summary judgment was properly entered in favor of Bowers Window on the McKees’ negligence claim.

(3) Warranties

¶ 42. The Mississippi Products Liability Act “does not abrogate a statutory cause of action for breach of implied warranty as grounds for recovery[,]” or, for that matter, any warranty claims. Bennett v. Madakasira, 821 So.2d 794, 808 (Miss.2002) (citing Miss.Code Ann. §§ 11-1-63 [(Rev.2002)], 75-2-715 [ (Rev.2002) ]), abrogated on other grounds by Hutzel v. City of Jackson, 33 So.3d 1116 (Miss.2010). Moreover, the implied warranties of merchantability for an ordinary purpose or fitness for a particular purpose may not be contractually waived “in a sale to a consumer ... of consumer goods....” Miss.Code Ann. § 11-7-18 (Rev.2002). See also Miss.Code Ann. § 75-2-719(4) (Rev.2002) (“[A]ny limitation of remedies which would deprive the buyer of a remedy to which he may be entitled for breach of an implied warranty of merchantability or fitness for a particular purpose shall be prohibited.”). However, “[i]n Mississippi, ‘an appellant is not entitled to raise a new issue on appeal, since to do so prevents the trial court from having an opportunity to address the alleged error.’” West, 891 So.2d at 214 (quoting Crowe, 603 So.2d at 305). See also Shaw, 603 So.2d at 292 (“One of the most fundamental and long-established rules of law in Mississippi is that the [appellate court] will not review matters on appeal that were not raised at the trial court level.”).

¶43. In this case, the McKees never, over the course of filing three complaints, pleaded claims for breach of implied or express warranty against Bowers Window. This critical fact fundamentally distinguishes this case from the warranty decisions relied upon by the McKees. See Duett Landforming, Inc. v. Belzoni Tractor Co., Inc., 34 So.3d 603, 605 (Miss.Ct. App.2009) (suit against manufacturer and seller of tractors for breach of implied warranties of merchantability and fitness for a particular purpose); Parker v. Thornton, 596 So.2d 854, 855-56 (Miss. 1992) (homeowners’ suit against building contractor alleging “breach of express and implied warranties of merchantability] ... fitness[,]” and habitability); North River Homes, Inc. v. Bosarge, 594 So.2d 1153, 1158-59 (Miss.1992) (complaint “alleged that the defendants breached various warranties — express, implied, and fitness[,]” and the trial judge instructed the jury “on the theories of breach of implied warranty of merchantability and fitness .... ”). On this basis, this Court concludes that the McKees’ warranty claims against Bowers Window are procedurally barred. See West, 891 So.2d at 214; Shaw, 603 So.2d at 292.

CONCLUSION

¶44. Based upon this analysis, this Court affirms the Circuit Court of Madison County’s “Order Granting Motion to Exclude Expert Witness Testimony of William Birdsong;” “Order Granting Bowers Window and Door Co., Ine.’s Motion for Summary Judgment;” and “Order Granting Weather Shield Manufacturing, Inc.’s Motion for Summary Judgment.”

¶ 45. AFFIRMED.

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

      . The McKees have since entered into a settlement with Ellington Homes.

      . No evidence was adduced that Bowers Window altered or modified the windows in any fashion. Bowers Window also offered evidence that it was not involved in the assembly of the windows ordered by the McKees.

      . Exterior Insulation and Finishing System, a synthetic stucco.

      . The wooden windows were replaced with metal-clad windows.

      . Stewart could not determine if the windows had been painted within six months of initial installation. Had this not occurred, Stewart stated that rot was a natural consequence. No evidence was offered that the windows had been painted.

      . Similarly, Curtiss McKee stated that carpenters informed him during the reconstruction “that the flashing was inadequate or was not there ..., that the windows were not installed correctly.”

      . Count One of the Complaint provided that Ellington Homes had failed to construct the home "in a workmanlike manner fit for habitation....” Specifically, the McKees alleged that:
      the area surrounding multiple windows placed in the back of the house has constantly leaked rainwater into the house, causing damage both to the frame around the windows inside and outside of the house and the walls and baseboards of the house; the baseboards under the windows have rotted; the frames surrounding the windows are beginning to rot; these windows include large "picture” type windows and the [McKees] fear that with the frame around the windows rotting that the windows may fall, causing bodily injury; the floor leading to the upstairs bedroom slopes; the return air chases were not properly sealed; the stone veneer on the front of the house was laid without any allowance for seepage of moisture in the stone wall cavity; the roof leaks; the master vanity marble top has cracked; the security system has failed; the EIFS in place, Dryvit Outsulation, was improperly installed, inter alia, with improper sealant or no sealing and/or improper flashing or no flashing along, and/or over and/or around the windows, fascia boards, stone roof line, planter box, rear wall, doors, and brick mold; the automatic electronic shutters are broken and the house must have mold remediation because of moisture intrusion due to improper construction.

      . See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . However, this Court notes that an examination of the McKees’ "Second Supplemental and Amended Complaint” reveals no claims of negligence against Bowers Window.

      . " 'Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Miss. R. Evid. 401.

      .As to the windows, the McKees also designated John Noble of the Madison County Permit Department who, along with Birdsong, was "expected to testify that the lower large windows in the den of the house should have been of tempered glass because the Madison County ... building code required that ... in 1999....” Birdsong’s deposition testimony provided that he was "almost positive” that the windows did not meet those applicable building code standards. Yet both Birdsong and Stewart also stated that this safety issue had no relevance to water intrusion, and there was no indication that any of the windows had shattered. As the McKees’ suit against Weather Shield and Bowers Window is predicated upon product liability, this Court concludes that the untempered-glass issue is without merit. See Miss.Code Ann. § 11 — 1—63(a)(iii) (Rev.2002) ([Claimant must prove by a preponderance of the evidence that ”[t]he defective and unreasonably dangerous condition of the product proximately caused the damages for which recovery is sought.”).

      . According to Stewart, "finger-joint” means “instead of taking a solid piece of stock, they'll make a board out of scraps, and they’ll finger-joint it together and glue it.”

      . According to Birdsong, he would install wooden windows only if the owners "were just hell bent on having them.”

      . Birdsong conceded that he did not know the price of the windows in the McKees' home.

      . In so ruling, the circuit judge added that: [a] judge has a difficult time separating his own personal beliefs and knowledge from the evidence of a case oftentimes.... I, as a ... property owner, have an opinion myself about the ... effectiveness of wooden window[s] and ... I'm familiar with finger-joints.... [M]any homes today are still standing with wooden windows — with finger-joints, perhaps my home may be one of those, it was built several years ago.

      . Additionally, Stewart, a residential builder involved in the removal of the subject windows, provided deposition testimony that the use of wooden windows is common and that they generally are not defective.

      . “A fact is material if it ‘tends to resolve any of the issues properly raised by the parties.’ ” Moss, 935 So.2d at 398 (quoting Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss. 1995)).

      . Counsel for the McKees was alluding to a statement of undisputed fact from Weather Shield Manufacturing, Inc. v. PPG Industries, Inc., 1998 WL 469913 (W.D.Wis.1998), that "[u]ntreated wood products can fail due to decay within two to ten years depending upon geography, wood species, and other factors.” Id. at *1. But a review of the underlying facts in PPG Industries reveals it is altogether inapplicable to this case. There, Weather Shield filed suit against PPG Industries for breach of warranty, negligence, and misrepresentation, alleging that PPG Industries had, beginning in 1984, sold them a "defective wood preservative [PILT] which caused its windows to rot prematurely.” Id. The critical, undisputed fact for purposes of the present case is that, in 1994, Weather Shield “discontinued its use of PILT.” Id. at *2. The subject windows in this case were not ordered until December 1998 and January 1999, and the McKees fail to present any evidence that their windows had been treated with PILT. Accordingly, this Court finds the purported significance of PPG Industries to be a "red herring.”

      . On appeal, the McKees additionally contend that Weather Shield breached the implied warranties of merchantability, fitness for a particular purpose, and habitability. But in their initial and amended Complaints, the McKees’ lone allegation against Weather Shield was that the windows used in their home were "a defective product in that they have leaked ever since they were placed in the house.” As the McKees’ implied-warranty claims against Weather Shield are presented for the first time on appeal, this Court concludes that they are procedurally barred. See West v. West, 891 So.2d 203, 214 (Miss.2004) (quoting Crowe v. Smith, 603 So.2d 301, 305 (Miss. 1992)) ("In Mississippi, 'an appellant is not entitled to raise a new issue on appeal, since to do so prevents the trial court from having an opportunity to address the alleged error.’ ”); Shaw v. Shaw, 603 So.2d 287, 292 (Miss. 1992) ("One of the most fundamental and long-established rules of law in Mississippi is that the [appellate court] will not review matters on appeal that were not raised at the trial court level.”).

      . This Court further adds that we have previously affirmed a trial court's finding that "one of the inherent characteristic [s] of wood is that it rots[,]” and that the McKees offered no evidence of a "feasible design alternative." Moss, 935 So.2d at 405 (emphasis in original); Miss.Code Ann. § 11—1—63(f)(ii) (Rev. 2002).

      . This Court addresses this claim because it was addressed by Bowers Window. But see supra note 9.

        . According to Bowers Window, the McKees can "cite no support for th[e] general statement” that the seller of windows must have been negligent if the windows rotted within two years.