text:
    Donald Ray BROWN v. TOWN OF FERRIDAY.
    No. 11-570.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2011.

      Brian P. Bowes, Hudson, Potts & Bernstein, L.L.P., Monroe, LA, for Defendant/Appellee, Town of Ferriday.
    Michael L. Cave, Cave Law Firm, L.L.C., Baton Rouge, LA, for Plaintiff/Appellant, Donald Ray Brown.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS and MARC T. AMY, Judges.
   AMY, Judge.

| Ronald Ray Brown filed a claim for workers’ compensation benefits, contending that, while working for the Town of Ferriday, he injured his back and right shoulder. After a hearing, the workers’ compensation judge found that the claimant’s testimony was not credible and that he had not proven that his disability is the result of injuries suffered while working for the Town of Ferriday. The workers’ compensation judge denied the claimant’s request for benefits and dismissed his claim with prejudice. The claimant appeals. For the following reasons, we affirm.

Factual and Procedural Background

The claimant, Donald Ray Brown, was employed by the Town of Ferriday as a “sewer plant helper.” As part of his job duties, he regularly did manual labor. Mr. Brown claims that, on August 20, 2008, he injured his back while lifting a heavy table. He also claims that, on September 5, 2008, he injured his back and right shoulder while picking up limbs after Hurricane Gustav.

The record indicates that the Town of Ferriday’s workers’ compensation insurer paid Mr. Brown’s medical benefits for a time. However, after his benefits were terminated, Mr. Brown filed a disputed claim for compensation. After a hearing, the workers’ compensation judge found that Mr. Brown had not proven that his injuries were a result of the accidents he alleged occurred while he was employed with the Town of Ferriday. The workers’ compensation judge denied Mr. Brown’s claim for benefits and dismissed his case with prejudice.

Mr. Brown appeals, asserting as error that:

1) The court committed legal error regarding medical causation when it ruled that one must be “in good health” in order for the Housley presumption to apply.
2) The court’s ruling is clearly wrong and contrary to the evidence and testimony, where an accident on the job occurred, employer conceded it 12was reported to him by employee, disabling injuries were sustained by employee, and medical causation went uncontroverted, [sic]
3)The court’s reasons for judgment do not reference employee’s disabling shoulder injuries and the accident on or about September 5, 2008, and thus, the court’s ruling is manifestly erroneous.

Discussion

Entitlement to Presumption of Causation

In his first and second assignments of error, Mr. Brown contends that the workers’ compensation judge misapplied the Housley presumption and a de novo review of the record is warranted.

The claimant in a workers’ compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. Quinn v. Vidalia Apparel, 10-712 (La.App. 3 Cir. 12/8/10), 54 So.3d 123. A panel of this court recently reiterated the presumption of causation applicable in workers’ compensation cases, stating:

“An employee in a workers’] compensation action has the burden of establishing a causal link between the work-related accident and the subsequent disabling condition.” Miller v. Roger Miller Sand, Inc., 94-1151, p. 6 (La.11/30/94), 646 So.2d 330, 334. An employee’s disability is presumed to have resulted from the accident if before the accident, the injured employee was in good health, but commencing with the accident, symptoms of the disabling condition appeared and continuously manifested themselves afterwards. Walton v. Normandy Village Homes Ass’n, Inc., 475 So.2d 320 (La.1985). However, the presumption requires either that there is sufficient medical evidence to show there to be a reasonable possibility of causal connection between the accident and disabling condition, or that the nature of the accident, when combined with the other facts of the case, raises a natural inference through human experience of such a causal connection. Id.

Richard v. Vermilion Hosp., 10-385, pp. 4-5 (La.App. 3 Cir. 6/9/10), 41 So.3d 1219, 1223 (quoting Marks v. 84 Lumber Co., 06-358 (La.App. 3 Cir. 9/27/06), 939 So.2d |s723 (alteration in original)), writ denied, 10-1611 (La.10/8/10), 46 So.3d 1269.

Whether the presumption is applicable is a finding of fact subject to the manifest error-clearly wrong standard of review. Littleton v. Richardson Med. Ctr., 42,082 (La.App. 2 Cir. 4/4/07), 954 So.2d 812 (citing Detraz v. Lee, 05-1263 (La.1/17/07), 950 So.2d 557). However, the manifest error standard no longer applies where the trial court makes one or more legal errors which interdict the fact-finding process. Evans v. Lungrin, 97-541, 97-577 (La.2/6/98), 708 So.2d 731. In that case, the appellate court must, if it can, make an independent de novo review of the record and render judgment. Id.

In this case, Mr. Brown contends that the workers’ compensation judge erred in finding that the presumption of causation did not apply because he was not “in good health.” Mr. Brown relies on Layssard v. State, Dept. of Pub. Safety & Corr., 07-78 (La.App. 3 Cir. 8/8/07), 963 So.2d 1053, writ denied, 07-1821 (La.11/9/07), 967 So.2d 511, for the proposition that his previous injuries do not preclude his entitlement to the presumption of causation. Therein, a panel of this court affirmed the trial court’s determination that the plaintiff was entitled to the presumption of causation. The court found that, although the plaintiffs “hip was not in perfect health, it does not mean that his hip was not “in good health” for purposes of Housley.” Layssard, 963 So.2d at 1061. The court noted that, although the plaintiff had a history of complaints of hip pain, he had only three documented reports of hip pain over a period of ten years, with the most recent occurring three years before the |4accident. Further, the plaintiff testified that he was in relatively good health and had no trouble participating in everyday activities.

A review of the record indicates that Mr. Brown contended that he was injured on August 20, 2008 while lifting a heavy table and again on September 5, 2008 while picking up limbs. Mr. Brown claims that he reported both accidents on the date they occurred to his supervisor, Tommy Stephens. Mr. Brown testified that he injured his neck and lower back in a work-related accident in Natchez, Mississippi in 1997 and had multiple surgeries related to that accident. According to Mr. Brown, he received a settlement for that incident in 2005. Mr. Brown’s testimony was that he is disabled and receives Social Security Disability payments but that he could work with the help of pain medications. Mr. Brown maintains that his 1997 injuries are unrelated to the injuries he allegedly suffered in 2008.

Mr. Brown’s medical records indicate that he sought treatment at the emergency room on August 21, 2008 complaining of “back pain” and received a diagnosis of “low back pain — chronic—acute exacerbation.” Mr. Brown went back to the emergency room on September 9, 2008, again complaining of lower back pain, and received a diagnosis of “acute strain lumbar and shoulder muscle.” Thereafter, Mr. Brown saw his primary care physician, Dr. Sarah Lee, and an orthopedic surgeon, Dr. J.C. Passman. Dr. Lee testified at her deposition, which was submitted into evidence, that, based on their proximity, she would attribute Mr. Brown’s shoulder injury to the August 20, 2008 accident. Mr. Brown testified that, after the accidents, he basically “sit[s] around the house” and that he has numbness and weakness in his hands and spasms in his back and shoulder. He also testified that Dr. Passman has not released him back to full duty.

The defendant attacked Mr. Brown’s credibility, establishing several inconsistencies between Mr. Brown’s claims and other evidence. For instance, Mr. | sBrown claimed he reported the accidents to his supervisor immediately. However, his supervisor, Mr. Stephens, testified that he did not learn of the incidents until September 11, 2008, when Mr. Stephens’ wife, who is also a Town of Ferriday employee, filled out a “Supervisor’s Accident Investigation.”

Further, when questioned, Mr. Brown denied that he had been drinking when he went to the emergency room on August 21, or that he had ever been intoxicated at work. He also denied sleeping at work. However, Mr. Stephens testified that he smelled alcohol on Mr. Brown at work on four or five occasions and found him sleeping at work and smelling of alcohol at least once. Further, Mr. Brown’s medical records of August 21, 2008 indicate that he “smells of EtOH — drank yesterday.” Older records describe Mr. Brown as an alcoholic who, at that time, drank “at least one half pint of whiskey every day.”

Notably, Mr. Brown’s deposition testimony was inconsistent with his testimony at the hearing. At the hearing, Mr. Brown claimed that he had problems with his neck and back between 2005 and 2008. However, at his deposition, he stated that he did not have any back or neck problems between 2005 and 2008. At her deposition, Dr. Lee testified that Mr. Brown “couldn’t have been fine” between 2005 and 2008 due to his surgeries. Further, Mr. Brown’s medical records indicate that he sought treatment in 2005 and 2006 with complaints of back pain and saw Dr. Lee in June of 2008, approximately two months before the alleged accidents, for an exacerbation of his prior back problems. Additionally, at the hearing, Mr. Brown claimed that he had not had any shoulder problems prior to the two alleged incidents in 2008. However, his medical records indicate that he complained of shoulder pain on two occasions in 2001 and on two occasions in 2005.

We also note that, at her deposition, Dr. Lee clarified her testimony regarding causation, stating that her impression was based on the history provided by Mr. | fiBrown. She further stated that “[Mr. Brown] thought he injured himself’ picking up the limbs and the table and testified that she was unable to tell the difference between his previous injuries and his current injuries. Medical records from Dr. Passman, the orthopedist, indicate that Dr. Passman found “no surgical disease” and that Mr. Brown was neurologically intact.

The workers’ compensation judge found that the evidence offered by the defendant “cast serious doubt upon the claimant’s version of the accident.” She stated, in her reasons for judgment, that Mr. Brown had a “lack of credibility” and that she was “particularly ... not impressed by [Mr. Brown’s] deposition testimony that denied medical problems with his neck and back between the years 2005 and 2008.” The workers’ compensation judge concluded that the “Housley presumption” did not apply because the evidence did not support a finding that Mr. Brown was “in good health” prior to the accident.

The requirement that the claimant be “in good health” to benefit from the presumption of causation has been interpreted as not requiring that the afflicted body part be “in perfect health.” Layssard, 963 So.2d 1053; Brock v. Singleton, 10-550 (La.App. 5 Cir. 3/29/11), 65 So.3d 649. However, that does not abrogate the requirement that, in order to be entitled to the presumption, the plaintiff offer sufficient evidence to establish the requisite elements. See Ladner v. Gov’t Employees’ Ins. Co., 08-323 (La.App. 4 Cir. 10/8/08), 992 So.2d 1098, writ denied, 08-2864 (La.2/2/09), 999 So.2d 783; Rachal v. Gilchrist, 08-342 (La.App. 3 Cir. 10/1/08), 995 So.2d 1226, writ denied, 08-2612 (La.1/9/09), 998 So.2d 725; Magee v. Abek, Inc., 04-2554 (La.App. 1 Cir. 4/28/06), 934 So.2d 800, writ denied, 06-1876 (La.10/27/06), 939 So.2d 1287. Our review of the record, in its entirety, indicates that Mr. Brown’s inconsistent testimony and credibility issues hindered his ability to establish that he was “in good health” prior to the alleged accidents. The workers’ ^compensation judge did not err in finding that the presumption of causation does not apply in this case. Therefore, a de novo review of the record is not warranted.

These assignments of error are without merit.

Content of Judgment

In his third assignment of error, Mr. Brown contends that the workers’ compensation judge erred in failing to address his shoulder injuries and/or the September 5, 2008 accident in her ruling. Mr. Brown again requests that this court perform a de novo review of the record based on this alleged error.

The judgment signed on May 23, 2011 orders that “the claims of claimant, Donald Ray Brown, are hereby rejected, and that this matter is dismissed, with prejudice, at claimant’s cost.” Further, despite Mr. Brown’s contention to the contrary, a review of the workers’ compensation judge’s reasons for judgment indicate that the workers’ compensation judge considered his claims regarding his shoulder injury and/or the alleged injury occurring on September 5, 2008. The workers’ compensation judge stated:

[Mr. Brown] contends he was injured on August 20th, 2008, while moving heavy chairs and tables and again on September 5th, 2009 [sic], while lifting branches and limbs following Hurricane Gustav. He contends he reported those injuries to his supervisor, Thomas Stephens, and sought medical treatment for his injuries.
Medical evidence revealed claimant received medical treatment at Riverland Medical Center on August 21st, 2008. He complained of back pain resulting from the lifting of a table.... However, following the alleged injury of September 5th, claimant returned to Riv-erland Medical Center and received medical treatment on September 9th, 2008. Once again, he complained of low back pain. On that date he received a diagnosis of acute strain lumbar and shoulder muscle.
The deposition testimony of claimant’s treating physician, Dr. Sarah Lee, was admitted into evidence. Her medical records revealed ajjong history of medical treatment for complaints of right shoulder pain, lower back pain and neck pain.

Thus, the record indicates that the workers’ compensation judge considered Mr. Brown’s claims with regard to the alleged injury of September 5, 2008. The workers’ compensation judge ultimately found that, given Mr. Brown’s inconsistent testimony and credibility issues, as discussed above, his “physical condition and disability status did not change and any allegations of injury are simply in pursuit of financial gain.” Having found Mr. Brown’s testimony not credible, the workers’ compensation judge rejected all of Mr. Brown’s claims, including his claims regarding the September 5, 2008 accident and/or his shoulder injuries.

Additionally, we note that there would be no manifest error even if the workers’ compensation judge did not specifically address the injuries Mr. Brown alleged occurred on September 5, 2008. “[A]ll issues presented by the pleadings, and on which evidence has been offered, will be considered as disposed of by a final judgment in the cause, and that demands passed over in silence must be considered as rejected in the absence of a special reservation.” City of Eunice v. Credeur, 02-188, p. 3 (La.App. 3 Cir. 10/9/02), 828 So.2d 710, 712 (citing R.G. Claitor’s Realty v. Juban, 391 So.2d 394 (La.1980)), writ denied, 02-2751 (La.1/31/03), 836 So.2d 68. See also Katner v. Katner, 09-974 (La.App. 4 Cir. 12/23/09), 28 So.3d 566. Mr. Brown alleged that he suffered injuries as a result of a work-related accident occurring on September 5, 2008 and presented evidence at the hearing on those issues. The workers’ compensation judge found that Mr. Brown’s allegations were made “simply in pursuit of financial gain” and rejected his claims. Thus, even if the judgment was silent as to those specific claims, they would be considered as rejected.

This assignment of error is without merit.

_J^DECREE

For the foregoing reasons, the judgment of the Office of Workers’ Compensation is affirmed. Costs of this proceeding are assessed to the appellant, Donald Ray Brown.

AFFIRMED.

      . Mr. Brown appears to have combined his arguments as to his first and second assignments of error. However, to the extent that this combined argument fails to brief his second assignment of error, it is deemed abandoned. See Uniform Rules — Courts of Appeal, Rule 2-12.4.

      . This presumption has become known as the "Housley presumption.” In Housley v. Cerise, 579 So.2d 973 (La.1991), the supreme court held that a plaintiff's disability is presumed to have come from an accident where: 1) the plaintiff was in good health before the accident; 2) the symptoms of the plaintiff's alleged injury appeared and continuously manifested themselves after the accident; and 3) the plaintiff submits evidence, whether medical, circumstantial, or common knowledge, that demonstrates a reasonable possibility of causation between the accident and the alleged injury. Although Housley addresses the presumption of causation as it applies to non-workers’ compensation civil cases, the presumption "has its root in workers’ compensation cases dating to 1917.” Detraz v. Lee, 05-1263 (La.1/17/07), 950 So.2d 557.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    Shaun STECKLER and Marianne Steckler Individually and on Behalf of the Minor Children, Brayden Steckler and Tristan Steckler v. LAFAYETTE CONSOLIDATED GOVERNMENT.
    No. 11-427.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2011.

      Kevin P. Tauzin, Yul D. Lorio, Russell B. Kahn, Ted W. Hoyt, D. Reardon Stanford, Glenn B. Foreman, Hoyt & Stanford, L.L.C., Lafayette, LA, for Plaintiffs/Appellants, Shaun Steckler and Marianne Steckler, Individually and on Behalf of the Minor Children, Brayden Steckler and Tristan Steckler.
    Kay A. Theunissen, Mahtook & La-Fleur, Lafayette, LA, for Defendant/Ap-pellee, Lafayette Consolidated Government.
    C. Shannon Hardy, Lafayette, LA, for Defendant/Appellee, Allstate Indemnity Company.
    Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   GENOVESE, Judge.

| plaintiffs, Shaun Steckler and Marianne Steckler, individually and on behalf of the minor children, Brayden Steckler and Tristan Steckler (the Stecklers), appeal the trial court’s grant of an exception of res judicata filed on behalf of Defendant, Lafayette Consolidated Government (LCG). For the following reasons, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

The, Stecklers purchased a home in Lafayette, Louisiana, in 2002. In April of 2008, the Stecklers learned that a sewer line, owned by LCG, located under their home, had been compromised. They were first alerted that there was a problem when they noticed hoses running across their property that were connected to portable pumping stations near the street in front of their home. Subsequently, an above-ground pipeline was placed across their property to carry raw sewage away from the compromised sewer line. The Steeklers asserted that the hoses and the pipeline leaked sewage in their yard. The Steeklers then instituted the present action against LCG seeking recovery for damage to their property as well as personal injuries which they allege were caused by the compromised sewer line. The Steeklers also asserted a claim for the adverse taking and appropriation of their property by LCG.

LCG filed a Peremptory Exception of Res Judicata and Motion for Summary Judgment wherein it argued that a lawsuit instituted in 1917 and the resultant compromise and settlement agreement reached therewith barred the Steeklers’ present claims. Following a hearing, the trial court granted LCG’s exception of res judicata. On December 20, 2010, the trial court signed a judgment granting the exception of res judicata, dismissing the Steeklers’ claims in their entirety, and denying the motion for summary judgment as moot. The Steeklers appeal.

| ^ASSIGNMENTS OF ERROR

The Steeklers present the following assignments of error for our review:

1. The trial court erred in granting the peremptory exception of res judica-ta where [LCG] mis-characterized and presented to the [trial] court[ ] a notarized settlement agreement as an order of the court and dismissal with prejudice.
2. The trial court erred in failing to strictly construe the facts as applied to the appropriate standard of law and erred in granting the exception of res judicata.

LAW AND DISCUSSION

STANDARD OF REVIEW

“The standard of review of a ruling sustaining an exception of res judicata is manifest error when the exception is raised prior to the case being submitted and evidence is received from both parties.” Jones ex rel Jones v. GEO Group, Inc., 08-1276, p. 4 (La.App. 3 Cir. 4/1/09), 6 So.3d 1021, 1024 (citing State ex rel. Sabine River Auth. v. Meyer & Assocs. Inc., 07-214, 07-215 (La.App. 3 Cir. 10/3/07), 967 So.2d 585).

RES JUDICATA

The parties agree that the law of res judicata prior to its amendment in 1991 is the applicable statutory basis for determining if res judicata bars the Steeklers’ claims in this case. Louisiana Revised Statutes 13:4231 then provided as follows:

The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.

Applying La.R.S. 13:4231, our supreme court, stated as follows:

Louisiana legislative authority for res judicata establishes a presumption of correctness and precludes relitigation of the object of the judgment only when there is (1) an identity of the parties, (2) an identity of “cause” and (3) an identity of the thing demanded. C.C. |s2285-2287, 3556(31); Mitchell v. Bertolla, 340 So.2d 287 (La.1976); Sliman v. McBee, 311 So.2d 248 (La.1975); Scurlock Oil Co. v. Getty Oil Co., 294 So.2d 810 (La.1974).

Welch v. Crown Zellerbach Corp., 359 So.2d 154, 156 (La.1978). The absence of any of these elements is fatal to an exception of res judicata. Id. Additionally, in considering an exception of res judicata, the following legal principles are relevant:

Res judicata promotes judicial efficiency and final resolution of disputes. Avenue Plaza, LLC v. Falgoust, 96-0173 (La.7/2/96), 676 So.2d 1077, 1079. On the trial of the peremptory exception raising the objection of res judica-ta, the burden of proving facts essential to sustaining the objection is on the party pleading the objection. Union Planters Bank v. Commercial Capital Holding Corp., 04-0871 (La.App. 1 Cir. 3/24/05), 907 So.2d 129, 130. The doctrine of res judicata is stricti juris and should be rejected when doubt exists as to whether a party’s substantive rights have actually been previously addressed and finally resolved. Domingue ex rel. Domingue v. Allied Discount Tire and Brake, Inc., 02-1338 (La.App. [1] Cir. 5/9/03), 849 So.2d 690, 695, writ denied, 03-1605 (La.10/3/03), 855 So.2d 320.

Middleton v. Livingston Timber, Inc., 10-1203, p. 3 (La.App. 1 Cir. 2/11/11), 57 So.3d 590, 592. Thus, a resolution of the issue of res judicata requires an examination of the parties, the causes of action, and the thing demanded, i.e., the relief sought in 1917, as compared to the instant litigation.

In 1917, Crow Girard filed suit against Franj C. Youmans, a contractor, and the City of Lafayette, seeking damages as a result of the work being performed for the laying of the subject sewer line. The cause of action asserted at that time was based upon allegations of trespass for which an injunction was sought, along with a claim for damages for the destruction of trees on the property. The parties settled that lawsuit and entered into a compromise and settlement agreement. Ultimately, a servitude was granted by Mr. Girard in favor of the City of Lafayette for the placement of the sewer line.

The present action was filed by the Stecklers against LCG. The instant action seeks damages resulting from the alleged negligent maintenance of the |4sewer line by LCG and for the adverse taking and appropriation of their property in accordance with La.R.S. 13:5111. Specifically, the Stecklers pray for damages resulting from sink holes which formed on their property, for the contamination and necessary remediation of the property, for the loss of the use and enjoyment of their property, and for their personal injuries and emotional distress. By their amended petition, the Stecklers have also asserted an additional claim for the adverse taking and appropriation of their property.

In their first assignment of error, the Stecklers argue that the compromise and settlement agreement which resulted from the 1917 lawsuit is not a “judgment” as required by La.R.S. 13:4231. They argue, in brief to this court, that “the application of res judicata presupposes a ‘judgment!.]’ ” They conclude that “[i]f there is no judgment, then there is no res judicata [;]” thus, the trial court erred in granting LCG’s exception.

“While the doctrine of res judicata is ordinarily premised on a final judgment on the merits, it also applies where there is a transaction or settlement of a disputed or compromised matter that has been entered into by the parties.” Ortego, 689 So.2d at 1363. The jurisprudence is clear that “[a] valid compromise may form the basis of a plea of res judicata.” Id. at 1364. We, therefore, find no merit in this assignment of error.

Claim for Adverse Taking and Appropriation

The Stecklers, in their amended petition, pursuant to La.R.S. 13:5111, have asserted an additional claim averring that “the actions of [LCG] herein, as alleged | sin the original petition, and the continuing effects therefrom, have resulted in an illegal and adverse taking and appropriation of [their] property, and [LCG] is indebted to [them] for full compensation for such taking.” This claim, wholly separate and distinct from an action grounded upon an alleged maintenance of the sewer line, must also be compared with the 1917 lawsuit.

Although never conceding that their adverse taking and appropriation claim is precluded based upon res judicata, the Stecklers’ brief contains the following statement (emphasis added): “In 1917, a landowner filed for injunctive relief arising out of an improper taking of his property and/or trespass.” Similarly, while maintaining that the doctrine of res judica-ta precludes the Stecklers’ claims in their entirety, LCG argues that “[i]n the alternative, the peremptory exception should be affirmed at least as it relates to [the Steck-lers’] claims for trespass, inverse condemnation, or any other claims arising out of the existence and location of the sewer line on [the Stecklers’] property.”

The 1917 action, which sought to enjoin actions of trespass and damages for the destruction of property, also alleged an improper taking of the property. This issue was raised and was resolved via settlement of all claims. In connection therewith, a formal servitude allowing for the construction of the sewer line was effectuated. Thus, we find that the current claims asserted by the Stecklers for the adverse taking and appropriation of their property are barred by res judicata.

| ^Claims of Negligent Maintenance of the Sewer Line

Identity of the Parties

In order for the 1917 lawsuit and subsequent compromise and settlement agreement to preclude the current action, the identity of the parties requirement must be met. In order for this element to be satisfied, the plaintiff(s) and defendants) need not be the “the same physical parties[.]” Ditch v. Finkelstein, 399 So.2d 1216, 1222 (La.App. 1 Cir.1981). Rather, the parties have identity when they appear in the same quality or capacity in both suits. Welch, 359 So.2d 154. Moreover, “where a successor or privy of one of the parties is involved[,]” the identity of the parties requirement is satisfied. Ditch, 399 So.2d at 1222.

The Stecklers are successors in title to the property originally owned by Mr. Gir-ard; however, they argue that “any privity between the parties [is] so distant in time that even the most fundamental factual elements were non-existent at the time of the earlier lawsuit.” While they are correct that, in 1917, there was no home on the property, there was no sewer line in existence, and there was no servitude, these facts do not negate an identity of the parties. Rather, these factual differences are more germane to an analysis of an identity of cause and identity of the thing demanded. We find that the identity of the parties requirement of a claim of res judicata has been met.

Identity of Cause

The 1917 action brought by Mr. Girard set forth allegations of trespass and complained of excavation of his property and the destruction of trees thereon. To the contrary, the current action asserts claims by the Stecklers that are grounded on a theory of negligent maintenance of the sewer line on their property. In their brief to this court, the Stecklers very explicitly state, “[i]t is clearly not the location of the sewer line that is at issue in the current suit, but rather the negligence in its ^maintenance and operation by the [LCG] resulting in its collapse and the resulting discharge of raw sewage into and onto [the Stecklers’] property.”

According to the jurisprudence, “cause” may “be likened to ‘grounds’ or the principle upon which a specific demand is grounded.” Cantrelle Fence & Supply Co., Inc. v. Allstate Ins. Co., 515 So.2d 1074, 1078 (La.1987). “Cause” is “roughly analogous to ‘theory of recovery[.]’” Id. When comparing the causes asserted in the instant matter with that of the 1917 lawsuit, the distinction is readily apparent. The placement of the sewage line by virtue of the servitude is wholly irrelevant to the instant proceedings, as are any allegations of trespass, excavation, and destruction of trees on the property. The current claims arise out of an alleged negligence on the part of LCG to maintain the sewer line which caused the sewer line to become compromised and which negligence, the Stecklers allege, has caused them damages. For these reasons, we find that LCG has failed to establish and prove an identity of cause in this action.

Identity of the Thing Demanded

When considering the thing demanded, we are to compare “the thing sought to be recognized as legally extant by each suit.” Heine v. Muse, 206 So.2d 529, 531 (La.App. 1 Cir.1968). We are instructed to look to the “kind of relief sought.” Ryan v. Grandison Trust, 504 So.2d 844, 849 (La.1987) (quoting Quarles v. Lewis, 226 La. 76, 75 So.2d 14 (1954), overruled on other grounds, 867 So.2d 6 (La.1978)). In so doing, we find that the 1917 lawsuit seeking an injunction and damages to compensate for trees being destroyed and for property being excavated differs completely from the relief sought by the Stecklers for damages for sinkholes, for contamination and remediation of the property, and for personal injuries. For these reasons, we find that LCG has also failed to establish and prove an identity of the thing demanded in this action.

IsBased upon our review of the record, we find that the trial court was not manifestly erroneous in granting the exception of res judicata as to the Stecklers’ claims for adverse taking and appropriation. However, we find that the trial court was manifestly erroneous in granting LCG’s exception of res judicata relative to the Stecklers’ present claims for damages resulting from the alleged negligent maintenance of the sewer line.

DECREE

For the reasons assigned, the judgment of the trial court granting Lafayette Consolidated Government’s exception of res judicata and dismissing the Stecklers’ claim for adverse taking and appropriation is affirmed; however, that portion of the judgment granting the exception of res judicata and dismissing the present claims for damages resulting from the alleged negligent maintenance of the sewer line is reversed. We assess costs of this appeal equally between the parties.

AFFIRMED IN PART, REVERSED IN PART.

      . See Ortega v. State, Dep’t of Transp. & Dev., 96-1322 (La.2/25/97), 689 So.2d 1358.

      . Louisiana Revised Statutes 13:5111 provides:
      A. A court of Louisiana rendering a judgment for the plaintiff, in a proceeding brought against the state of Louisiana, a parish, or municipality or other political subdivision or an agency of any of them, for compensation for the taking of property by the defendant, other than through an expropriation proceeding, shall determine and award to the plaintiff, as a part of the costs of court, such sum as will, in the opinion of the court, compensate for reasonable attorney fees actually incurred because of such proceeding. Any settlement of such claim, not reduced to judgment, shall include such reasonable attorney, engineering, and appraisal fees as are actually incurred because of such proceeding. Actions for compensation for property taken by the state, a parish, municipality, or other political subdivision or any one of their respective agencies shall prescribe three years from the date of such taking.
      B. The rights of the landowner herein fixed are in addition to any other rights he may have under the constitution of Louisiana and existing statutes, and nothing in this Part shall impair any constitutional or statutory rights belonging to any person on September 12, 1975.


author: ROBERTS, J., for the Court.

text:
    Thomas Terrell SMITH, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-00375-COA.
    Court of Appeals of Mississippi.
    March 31, 2009.
    Rehearing Denied Aug. 4, 2009.
    Certiorari Denied Oct. 29, 2009.
    As Corrected Dec. 16, 2011.

      Leslie S. Lee, Jackson, Joseph Joshua Stevens, Erin Elizabeth Pridgen, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J., for the Court.

¶ 1. This is a corrected opinion. The mandate in the opinion has been corrected to change the sentence from life in the custody of the Mississippi Department of Corrections (MDOC) without possibility of parole to life in the custody of the MDOC. The remainder of the opinion unchanged.

¶ 2. A jury sitting before the Oktibbeha County Circuit Court found Thomas Terrell Smith guilty of murder. The circuit court sentenced Smith to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC) -without the possibility of parole. Following an unsuccessful post-trial motion for a new trial, Smith appeals. Smith claims the circuit court erred when it denied his proposed jury instructions on the theories of heat-of-passion manslaughter, manslaughter following the decedent’s commission of a felony, and self-defense. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. In the early months of 2004, Smith was living with his aunt, Minnie Bell, who suffered from terminal cancer. Minnie’s adult daughter, Latoya Bell, also lived with Minnie. Latoya had children with a man named Terry Tate. In late January 2004, Terry visited Latoya at Minnie’s house. During that visit, Terry became violent with Latoya. Smith and Latoya’s brother, Quentin Bell, restrained Terry. Terry left Minnie’s house after someone contacted the police department.

¶ 4. Two days later, Smith helped another cousin, Monique Bell, who was involved in a separate domestic violence altercation. Monique contacted Smith because she had been arguing with her boyfriend, and she needed someone to pick her up from “Spann’s Place” in Clay County, Mississippi. Smith and Minnie’s boyfriend, Harvey Cooper, went to pick up Monique. When Smith and Cooper arrived, Monique told them that she and her boyfriend had resolved their differences and that she no longer needed a ride home.

¶ 5. Terry was also at Spann’s Place. As Smith was leaving, Terry pushed Smith outside and hit him with a pistol. Eddie Davis, a friend of Terry’s, later testified that Terry said to Smith, “do you believe that I’ll blow your brain out? Don’t never get into me and my old lady’s affair again.” Monique corroborated Davis’s version of events. That is, she also heard Terry warn Smith that he should not interfere with his violent treatment of Latoya.

¶ 6. The next morning, Smith went to a restaurant in Clay County and talked to Desmond Logan about getting a pistol. According to Smith, he was concerned about Terry. Logan gave Smith a pistol. Later that day, Terry drove by the same restaurant. By all accounts, Terry asked people at the restaurant whether they had seen someone. Some witnesses testified that Terry asked about Smith. Others testified that Terry asked about his own cousin.

¶ 7. Seconds later, Smith pulled up, got out of his car, and walked toward Terry’s car, where Terry sat in the driver’s seat. Again, witnesses’ testimonies varied. According to Smith, as he approached Terry’s window, he saw Terry reach for something. John Cunningham, who happened to be standing outside the restaurant at the time, testified that he did not see Terry make any threatening movements toward Smith. However, it is undisputed that Smith drew his pistol and shot Terry. Smith’s shot traveled through Terry’s arm and into his chest cavity. Terry’s wound was fatal. A search of Terry’s car later revealed an unloaded pistol in Terry’s glove compartment.

¶ 8. As mentioned, Smith went to trial. During the jury instruction conference, Smith unsuccessfully requested several jury instructions. In particular, Smith’s proposed jury instruction, identified as D-14 at trial, would have instructed the jury on heat-of-passion manslaughter. Three jury instructions, D-13, D-16, and D-17, would have instructed the jury on manslaughter following the decedent’s commission of a felony. Finally, Smith submitted seven proposed self-defense jury instructions identified at trial as follows: D-4, D-7, D-15, D-18, D-19, D-20, and D-23. The circuit court refused those instructions. Smith appeals his conviction. According to Smith, the circuit court erred when it denied his jury instructions.

STANDARD OF REVIEW

¶ 9. A trial court has “considerable discretion regarding the form and substance of jury instructions.” Higgins v. State, 725 So.2d 220, 223(¶ 15) (Miss.1998). “A defendant is entitled to have jury instructions given which present his theory of the case.” Id. at (¶ 16). “[H]owever, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is fairly covered elsewhere in the instructions, or is without foundation in the evidence.” Id. Stated somewhat differently, “all instructions are to be read together[,] and if the jury is fully and fairly instructed by other instructions[,] the refusal of any similar instruction does not constitute reversible error.” Laney v. State, 486 So.2d 1242, 1246 (Miss.1986).

ANALYSIS

I. HEAT-OF-PASSION MANSLAUGHTER INSTRUCTION

¶ 10. Smith claims that by denying his heaUof-passion manslaughter instruction, the circuit court deprived him of his fundamental right to present his theory of the case. According to Smith, there was sufficient evidence to justify his instruction. Smith relies on the following: (1) the night before Smith shot Terry, Terry hit Smith in the head with a pistol; (2) Terry threatened Smith’s life at approximately the same time he hit Smith; (3) after Smith acquired a pistol, he did not look for Terry; and (4) Terry drove by the restaurant and, according to some witnesses, tried to find Smith. Smith concludes that a jury could have found that, due to Terry’s threat, Smith was afraid of Terry. According to Smith, the jury could have found that he had sufficient provocation to shoot Terry.

1111. Heat-of-passion manslaughter is “[t]he killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense....” Miss.Code Ann. § 97-3-35 (Rev.2006). Heat of passion has been defined as “[a] state of violent and uncontrollable rage engendered by a blow or some other provocation given” and “[pfession or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time.” Cooper v. State, 977 So.2d 1220, 1223(¶ 11) (Miss.Ct.App.2007) (emphasis added).

¶ 12. We cannot find that the circuit court abused its considerable discretion when it declined to grant the instruction at issue. There was no evidentiary basis for the instruction. Smith was not entitled to claim that he was still in the heat of passion over events that happened the day before. Additionally, as the State notes, the jury had the option of finding Smith guilty of manslaughter.

¶ 13. The circuit court granted instruction C-38, which instructed the jury as follows:

if a person kills another under the actual bona fide, [sic] belief that such a killing is necessary in order to protect himself from great bodily harm or death but that such belief is not reasonable under the circumstances, then there is no malice aforethought and the killing is-not a murder, but at most is the crime of manslaughter.

Instruction C-38 has been described by some as an “imperfect self-defense instruction.” Obviously there are subtle differences in instruction C-38 and proposed instruction D-14. For example, instruction C-38 did not mention the phrase “heat of passion.” Even so, there can be no doubt that the jury had the option of finding Smith guilty of manslaughter upon a finding that Smith killed Terry under the unreasonable impression that Terry presented a threat of great bodily harm or death. Although the words “heat of passion” were not included in instruction C-38, the jury clearly had the option of finding Smith guilty of manslaughter. Accordingly, we find no merit to this issue.

II. SLAYING FOLLOWING DECEDENT’S COMMISSION OF A FELONY

¶ 14. Next, Smith claims the circuit court erred when it did not grant his proposed instructions that would have allowed the jury to find him guilty of manslaughter. Smith draws attention to the language of Mississippi Code Annotated section 97-3-31 (Rev.2006), which states that “[e]very person who shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any unlawful act, or after such attempt shall have failed, shall be guilty of manslaughter.”

¶ 15. Smith’s argument under this issue is particularly brief. According to Smith, he “attempted to present these instructions based on the aggravated assault that [Terry] committed on [him] the night prior to the shooting.” Smith concludes that the circuit court erred in “failing to grant the jury the opportunity to consider this theory of the defense.”

¶ 16. The State responds and reiterates that the circuit court instructed the jury that it could find Smith guilty of the lesser-included offense of manslaughter. Additionally, there was no evidence that at the time of the shooting, Smith was resisting Terry’s attempt to commit a felony or any other unlawful act. Instead, the evidence indicated that Terry was sitting in his car, with his three-year-old son in the back seat, and that Terry did not do anything unlawful before Smith shot him. As previously mentioned, the circuit court may refuse an instruction that “is without foundation in the evidence.” Higgins, 725 So.2d at 223(¶ 15). It follows that we find no merit to this issue.

III. SELF-DEFENSE INSTRUCTIONS

¶ 17. Smith submitted seven proposed jury instructions that discussed self-defense. According to Smith, the circuit court erred when it denied those instructions. On appeal, Smith claims that he was entitled to his proposed self-defense instructions because: (1) Terry was “ruthless” and “big, tall[,] and violent”; (2) Terry attacked Latoya; (3) Terry threatened Smith the night before Smith shot Terry; and (4) Terry hit Smith with a pistol the night before Smith shot Terry. Smith concludes that Terry’s behavior placed Smith in reasonable fear of his life and that he had the right to anticipate Terry’s “actions” the next morning. Smith argues that the jury should have been allowed to consider self-defense as a defense.

¶ 18. “It is well-settled that a defendant is entitled to a jury instruction on self-defense when it is warranted by the evidence.” Williams v. State, 803 So.2d 1159, 1161(¶ 6) (Miss.2001). Even considering the evidence in the light most favorable to Smith, Smith never saw Terry with a weapon before he shot Terry. Smith testified that Terry was “reaching for something.” Smith also testified that, although he had “seen [Terry with a pistol] the night before,” he did not testify that he saw Terry in possession of a weapon when he shot him.

¶ 19. Moreover, the circuit court granted instruction S-5, which stated as follows:

The Court instructs the jury that to make an assault justifiable on the grounds of self-defense, the danger to the Defendant must be either actual, present and urgent, or the Defendant must have reasonable grounds to apprehend a design on the part of the victim to assault him or to do him some great bodily harm, and in addition to this he must have reasonable grounds to apprehend that there is imminent danger of such design being accomplished. It is for the jury to determine the reasonableness of the ground upon which the Defendant acts. If the State has failed to prove, beyond a reasonable doubt, that the Defendant did not act in self-defense as defined in this instruction, you shall find the Defendant not guilty.

Clearly, the circuit court instructed the jury that it was to find Smith not guilty if it concluded that Smith acted in self-defense. Smith’s proposed self-defense instructions were superfluous. “[I]f the jury is fully and fairly instructed by other instructions[,] the refusal of any similar instruction does not constitute reversible error.” Laney, 486 So.2d at 1246. We find no merit to this issue.

¶ 20. THE JUDGMENT OF THE OKTIBBEHA COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIB-BEHA COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ, CONCUR. MAXWELL, J., NOT PARTICIPATING.


author: ISHEE, J., for the Court:

text:
    Jermaine S. MITCHELL, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KP-01315-COA.
    Court of Appeals of Mississippi.
    Nov. 8, 2011.

      Jermaine S. Mitchell, appellant, pro se.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before LEE, C.J., ISHEE and CARLTON, JJ.
   ISHEE, J., for the Court:

¶ 1. In June 2010, Jermaine S. Mitchell was convicted in the Madison County Circuit Court of selling cocaine on or near church grounds. The circuit court determined that Mitchell was eligible for two sentence enhancements: the subsequent-drug-offender enhancement and the habitual-offender enhancement. The circuit court ultimately sentenced Mitchell to 120 years in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for parole or probation. Mitchell filed a motion for a judgment notwithstanding the verdict, which the circuit court denied. Aggrieved, Mitchell appeals, arguing the circuit court erred in allowing testimony from the State’s confidential informant who purchased the drugs in question from Mitchell but admits to having drug problems. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. On August 1, 2009, Ronnie Hewitt assisted the Madison County Sheriffs Department in an undercover operation to purchase crack cocaine from Mitchell in Canton, Mississippi. Madison County Sheriffs Department Deputies Trey Curtis and John Harris met Hewitt on the day in question at a predetermined location and searched his person and vehicle to ensure that he had no contraband prior to the undercover operation. Deputy Curtis wired Hewitt with an audiovisual recording device to record the transaction and gave him $40 to purchase the crack cocaine.

¶ 8. Thereafter, Hewitt called Mitchell on his cell phone and asked: “You got my 40?” Mitchell responded in the affirmative, and Hewitt drove to Mitchell’s house, which was located approximately 812 feet from Ark of Safety Ministry Church. Deputies Curtis and Harris followed Hewitt to Mitchell’s house, and they watched Hewitt enter the house. Hewitt stayed inside the house for several minutes, then returned to his car. Deputies Curtis and Harris then followed Hewitt back to the predetermined location where they removed the recording device and recovered the substance Hewitt had just purchased from Mitchell. They also searched Hewitt and his vehicle for illegal contraband but found none. The money given to Hewitt to purchase the crack cocaine was gone.

¶ 4. Because the incident took place on a weekend and not during business hours, Deputy Curtis took the substance recovered from Hewitt to an evidence vault. The following week, Deputy Curtis delivered the substance to the Mississippi State Crime Laboratory for further testing. Chancy Bass with the Mississippi State Crime Laboratory analyzed the substance; he identified it as approximately 0.2 gram of cocaine, a Schedule II drug.

¶ 5. After removing Hewitt’s recording device and placing the cocaine into the evidence vault, Deputy Curtis immediately downloaded the video from Hewitt’s wire to his office computer and copied the video onto a compact disc. While watching the video, Deputy Curtis saw Hewitt enter the house and speak to Mitchell. He then saw Hewitt exchange $40 for a small bag with a substance inside. Hewitt visited with Mitchell for a few more minutes then left the house. The recording was uninterrupted from the time the device was placed on Hewitt by Deputy Curtis until the device was removed by Deputies Curtis and Harris.

¶ 6. Mitchell was subsequently arrested and charged with sale of cocaine near church grounds. Since Mitchell had been convicted of felonies on two prior separate occasions, and both involved the sale of controlled substances, he was also charged as being a second or subsequent drug offender and a habitual offender. He pleaded not guilty, and a trial was set in the circuit court for June 20, 2010.

¶ 7. At trial, the jury heard testimony from Deputies Curtis and Harris, Hewitt, and Bass. The jury found Mitchell guilty, and the circuit court subsequently scheduled a sentencing hearing. On June 30, 2010, the circuit court sentenced Mitchell to 120 years in the custody of the MDOC, without eligibility for parole or probation. Mitchell filed a post-trial motion for a JNOV, which was denied by the circuit court. Mitchell now appeals and asserts the circuit court erred by permitting Hewitt to testify on the stand. Mitchell argues that because Hewitt admits to being a drug addict, his testimony was unreliable. Mitchell further notes that Hewitt’s testimony was, in part, the result of a deal Hewitt made with the State after being charged with illegal possession of a controlled substance. For these reasons, Mitchell states Hewitt’s testimony should have been excluded. Finding no error, we affirm the circuit court’s judgment.

DISCUSSION

¶ 8. When analyzing a claim that a verdict is against the overwhelming weight of the evidence, an appellate court “will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005) (citation omitted). Additionally, “the evidence should be weighed in the light most favorable to the verdict.” Id. (citation omitted).

¶ 9. Mitchell asserts that because Hewitt is a drug addict and participated in the instant drug purchase in exchange for a reduction in his own previously acquired drug charges, he is not credible and should not have been allowed to testify. However, the determination of witness credibility is within the province of the jury. Moore v. State, 969 So.2d 153, 156 (¶ 11) (Miss.Ct.App.2007). “Who the jury believes and what conclusions it reaches are solely for its determination. As the reviewing court, we cannot and need not determine with exactitude which witness(es) or what testimony the jury believed or disbelieved in arriving at its verdict.” Id.

¶ 10. Here, Hewitt confessed to being a drug addict and to having received multiple drug charges. He was fully questioned on the stand about his cooperation with the authorities due to his personal addictions and drug charges. The jury was privy to Hewitt’s testimony and Deputy Curtis’s testimony regarding Hewitt’s drug problems. In addition to hearing Hewitt’s testimony about the events of the drug sale, the jury heard corroborating testimony from Deputies Curtis and Harris. The deputies confirmed that Hewitt went to Mitchell’s house, entered the house with $40, and exited the house without the $40 but with a small bag of cocaine. The deputies also testified that Hewitt was never out of their line of sight from the time they placed the recording device on him until the time they took the recording device off, except during the time Hewitt was inside Mitchell’s house. Finally, the jury was allowed to see the entirety of the recording showing Hewitt being fitted with the recording device by the deputies, driving to Mitchell’s house, entering the house, buying the drugs from Mitchell, leaving the house, meeting the deputies, and having the deputies remove the recording device.

¶ 11. The Mississippi Supreme Court has held: “Only in ‘exceptional cases in which the evidence preponderates heavily against the verdict’ should the trial court invade the province of the jury and grant a new trial.’ ” Dilworth v. State, 909 So.2d 731, 737 (¶ 21) (Miss.2005) (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (¶ 18) (Miss.2000)). Given the jury’s knowledge of Hewitt’s drug addiction and drug charges, the corroborating testimony of the deputies, and the recording of the drug transaction, we cannot conclude that the verdict is against the weight of the evidence. We affirm the circuit court’s judgment.

¶ 12. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT OF CONVICTION OF THE SALE OF COCAINE, A SCHEDULE II CONTROLLED SUBSTANCE, WITHIN 1,500 FEET OF A CHURCH, AS A SUBSEQUENT DRUG OFFENDER AND AS A HABITUAL OFFENDER, AND SENTENCE OF 120 YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR. MYERS, J., NOT PARTICIPATING.


author: GRIFFIS, P. J.,

text:
    Melissa SIMMONS, Appellant v. Chrissy STRICKLAND, Appellee.
    No. 2010-CA-01189-COA.
    Court of Appeals of Mississippi.
    Nov. 29, 2011.

      J. Tyson Graham, Columbus, attorney for appellant.
    J. Douglas Ford, Tupelo, attorney for appellee.
   GRIFFIS, P. J.,

for the Court:

¶ 1. Chrissy Strickland filed a complaint against Melissa Simmons and asserted claims for alienation of affection and intentional infliction of emotional distress. The jury returned a verdict in favor of Chrissy and awarded $87,500 in compensatory damages and $500 in punitive damages. On appeal, Melissa argues that: (1) the jury’s verdict on liability is against the overwhelming weight of the evidence; (2) the trial judge erred when he excluded from evidence testimony that would have shown that Chriss/s relationship with Chuck Strickland had begun as an adulterous affair while Chrissy was married to someone else; (3) the trial judge erred when he refused a jury instruction on how Melissa could rebut the presumption that she had acted with malice because she had committed adultery with Chuck; and (4) the trial judge erred when he refused a jury instruction on nominal damages. We find no error and affirm.

FACTS

¶ 2. Chrissy and Chuck were married in 1996. Their son, Charles Wilder Strickland (“Wilder”), was born in 1998. Chris-sy testified that their marriage, while not perfect, was a relatively good marriage for eleven years. Chuck testified that the marriage was more troubled, although he did concede that the marriage was “typical,” in that there were “ups and downs.”

¶ 3. The marriage began to disintegrate in the summer of 2007. They separated on September 17, 2007.

¶4. In June 2007, Chuck, Chrissy, and Wilder were on vacation with Melissa and her then-husband, Lane Simmons, at a camp house on a river in Kiln, Mississippi. Chuck and Chrissy got into an argument. Chrissy packed her bags, grabbed Wilder, and left the camp house without Chuck.

¶ 5. Melissa testified that she and Chuck stayed up talking that night at the camp house. He told her that he was unhappy. After that night, Chuck and Melissa talked to each other frequently. Cell phone records indicated that Melissa called Chuck 107 times between July 26, 2007, and September 17, 2007. Likewise, Chuck called Melissa fifty-one times, often dialing *67 to block the caller identification. At trial, when asked why he would block the caller identification, Chuck testified: “No comment.”

¶ 6. Chuck and Melissa testified that they did not have sex prior to September 17, 2007, the date that Chuck and Chrissy separated. Yet, there was some evidence to the contrary. Lane testified that he found a contraceptive sponge in his and Melissa’s bathroom in early August 2007. Lane had undergone a vasectomy in approximately 1995. In addition, Wilder testified that he saw Chuck and Melissa in bed together at the camp house sometime in the summer of 2007.

¶ 7. On September 16, 2007, Melissa told Lane that she wanted a divorce. According to Melissa, she said that she had been talking to Chuck and that she wanted out of the marriage before things went any further with Chuck. According to Lane, Melissa said that she was in love with Chuck. She left Lane and their marital home the next day.

¶ 8. On September 17, 2007, Chuck told Chrissy that he wanted a divorce. Chuck testified that he said he might be in love with Melissa. According to Chrissy, Chuck said that he was in love with Melissa. Chuck left the marital home that same day.

¶ 9. Both marriages were dissolved by divorce decrees in July 2008. Melissa and Lane were granted an irreconcilable-differences divorce. Chrissy was granted a divorce from Chuck on the ground of adultery.

¶ 10. Chuck and Melissa were married in December 2008. As of the date of trial, Chrissy and Wilder still lived by themselves in the former marital home.

¶ 11. On September 16, 2008, Chrissy filed her complaint against Melissa Simmons asserting claims for alienation of affection and intentional infliction of emotional distress. The circuit court bifurcated the trial. The first phase allowed the jury to consider liability and compensatory damages, and the jury returned a verdict in favor of Chrissy for $87,500 on the alienation-of-affection claim only. The second phase of the bifurcated trial allowed the jury to consider punitive damages, and the jury returned a verdict in favor of Chrissy for $500. Melissa now appeals the judgment.

ANALYSIS

1. Whether the jury’s verdict on liability is against the overwhelming weight of the evidence.

¶ 12. Melissa argues that the verdict is contrary to the overwhelming weight of the evidence. To prevail on her claim of alienation of affection, Chrissy was required to prove by a preponderance of the evidence the following elements: “(1) wrongful conduct of the defendant; (2) loss of affection or consortium; and (3) causal connection between such conduct and loss.” Fitch v. Valentine, 959 So.2d 1012, 1025-26 (¶ 36) (Miss.2007) (citation and quotation omitted). Chrissy was required to show that Melissa, through active interference, persuaded, enticed, or induced Chuck to abandon the marriage. Id. The jury found that Chrissy had proved each element.

¶ 13. When reviewing a jury verdict, this Court must “consider the evidence in the light most favorable to plaintiff, disregard any evidence on the part of defendant in conflict with that favorable to plaintiff, and if the evidence and reasonable inference to be drawn therefrom would support a verdict for plaintiff, the jury verdict should not be disturbed.” Kirk v. Koch, 607 So.2d 1220, 1222-23 (Miss.1992) (citation and quotation omitted).

¶ 14. Viewed in the light most favorable to Chrissy, the evidence established that Chuck and Chrissy had a stable, although not perfect, marriage for eleven years. In the summer of 2007, Chuck and Chrissy were having some problems in their relationship. At that point, Melissa began an affair with Chuck. Notably, the cell phone records show that Melissa called Chuck more than twice as much as he called her. A few months later, Chuck abandoned the marriage, saying that he was in love with Melissa. Based on these facts, there was sufficient evidence for the jury to infer that, but for Melissa’s active interference, the marriage of Chuck and Chrissy probably would not have ended.

¶ 15. In Kirk, the Mississippi Supreme Court upheld a jury verdict in an alienation of affection case. Kirk, 607 So.2d at 1222-23. There, Jim Jeffries and recently-widowed Shirley Kirk, who had known each other for approximately twenty years, were partners in a business venture. Id. at 1221. Judy Koch, Jeffries’s wife, discovered that Jeffries was secretly spending significant amounts of time at Kirk’s home, so Koch asked Jeffries to move out of the marital home. Id. They were later divorced. Id. at 1222. There was no direct evidence that Jeffries and Kirk were romantically involved. In fact, a private investigator, who was hired by Koch, failed to obtain any direct evidence that the two were having an affair. Id. at 1221. Koch won a $50,000 judgment against Kirk, and the supreme court affirmed the judgment. Id. at 1224.

¶ 16. Here, there was sufficient evidence that Melissa and Chuck had an extra-marital affair and that the affair had caused the dissolution of Chrissy’s and Chuck’s marriage. Following Kirk, we will not disturb the jury’s verdict. This issue is without merit.

2. Whether the trial judge erred when he excluded from evidence testimony that would have shown that Chrissy’s relationship with Chuck had begun as an adulterous affair.

¶ 17. Prior to trial, Melissa identified Ervin Lee Reddy, Chrissy’s ex-husband, as a potential witness. Chrissy filed a motion in limine to exclude Reddy’s testimony. At the motion hearing, it was established that Reddy would have testified that, during his marriage to Chrissy, Chrissy had an affair with Chuck and ultimately moved in with him. The trial judge granted the motion to exclude Reddy’s testimony. He ruled that Reddy’s testimony was both irrelevant and unduly prejudicial. He stated: “I can’t see how it could be relevant other than to try to impugn the character of one of the parties in the lawsuit.” On appeal, Melissa argues that decision was in error.

¶ 18. Melissa argues that Reddy’s testimony was admissible to impeach Chrissy’s testimony. Chrissy had testified at a pretrial deposition that she and Chuck had not had an affair during her marriage to Reddy. At trial, she denied that she had moved in with Chuck prior to her divorce from Reddy, and she denied that the alleged affair was the reason she and Reddy divorced. Melissa argues that since Chris-sy’s credibility was of vital importance in the case, the trial judge should have allowed her to put on evidence that would have called Chrissy’s credibility into question.

¶ 19. In her brief, Melissa’s argument is one paragraph. She cites not one rule or case as authority. Mississippi Rule of Appellate Procedure 28(a)(6) provides: “The argument shall contain ... citations to the authorities, statutes, and parts of the record relied on.” While it appears her argument refers to Mississippi Rule of Evidence 403, Melissa has the duty to provide this Court with relevant authority to support her argument. She has not. Thus, we are not obligated to review this issue on appeal. See Huff-Cook, Inc. v. Dale, 913 So.2d 988, 991 (¶ 14) (Miss.2005) (citing Williams v. State, 708 So.2d 1358, 1362-63 (Miss.1998) (“failure to cite relevant authority obviates the appellate court’s obligation to review such issues”)).

S. Whether the trial judge erred when he denied a jury instruction on how the presumption of malice could he overcome.

¶20. Next, Melissa argues that while the trial judge correctly instructed the jury that adultery raises a presumption of malice, which if unrebutted warrants punitive damages, he erred when he refused to give Melissa’s offered jury instruction on how the presumption could be overcome.

¶ 21. The Mississippi Supreme Court has held that when reviewing a trial judge’s decision to give or deny jury instructions:

[Ojur primary concern is that the jury was fairly instructed and that each party’s proof-grounded theory of the case was placed before it_We ask whether the instruction at issue contained a correct statement of law and was warranted by the evidence.... In analyzing the aggregate jury instructions, defects in specific instructions will not mandate reversal when all of the instructions, taken as a whole fairly — although not perfectly — announce the applicable primary rules of law.

Dunn v. Yager, 58 So.3d 1171, 1200 (¶ 71) (Miss.2011) (citations and quotations omitted).

¶ 22. The trial judge gave jury instruction P-5A, which provides:

The Court instructs you, the jury, that if you find from a preponderance of the evidence that Defendant committed adultery with Chrissy Strickland’s husband, then malice of the Defendant is to be presumed.

Melissa offered jury instruction D-10, which states:

The Court instructs the jury that although malice is presumed if you believe the Defendant committed adultery with the Plaintiffs husband, that presumption can be overcome by the Defendant proving by clear and convincing evidence that there was no malice because there were no affections in the marriage of the Plaintiff and her husband to alienate.

The trial court refused jury instruction D-10. Melissa argues that the trial judge’s denial of jury instruction D-10 was in error because the instruction was necessary to inform the jury how the presumption of malice could be overcome.

¶ 23. Just as with the prior issue, Melissa fails to cite relevant authority. Her brief does attempt to support her argument with two cases that are referred to as “examples.” She cites Jeffreys v. Clark, 251 Miss. 129, 168 So.2d 662 (1964), overruled by Sheffield v. Sheffield, 405 So.2d 1314 (Miss.1981), as an example of “the presumption of a valid marriage.” And, she cites In re Estate of Chapman, 966 So.2d 1262, 1264 (Miss.Ct.App.2007), as an example of “the presumption of undue influence if a person has a fiduciary relationship with the testator in a probate proceeding.” Neither case provides authority for the proposition she argues here.

¶ 24. Thus, we are not obligated to review this issue on appeal. See Huff-Cook, Inc., 913 So.2d at 991 (¶ 14); M.R.A.P. 28.

A Whether the trial judge erred when he denied a jury instruction on nominal damages.

¶ 25. Melissa’s final issue argues that the trial judge erred when he refused to give a jury instruction on nominal damages. Melissa offered the following instruction:

If you find that Chrissy Strickland is entitled to a verdict but do not find that Chrissy Strickland has sustained measurable damages, then you may return a verdict in a nominal sum such as one dollar ($1.00).

The trial court refused this instruction.

¶ 26. Melissa’s brief devotes three sentences to this issue and again cites no authority to support her argument. Thus, we are not obligated to review this issue on appeal. See Huff-Cook, Inc., 913 So.2d at 991 (¶ 14); M.R.A.P. 28.

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

LEE, C.J., ISHEE, ROBERTS, CARLTON AND RUSSELL, JJ„ CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. MYERS AND BARNES, JJ., NOT PARTICIPATING.


author: ROBERTS, J., for the Court:

text:
    AMERICAN GENERAL LIFE & ACCIDENT INSURANCE COMPANY and Brian Muse, Appellants v. Amanda EDWARDS, Dextra Davis, Hilda Johnson, Heather Davis, Brian Walden, Kimberly Taylor and Donna Smith, Appellees.
    No. 2010-CA-00795-COA.
    Court of Appeals of Mississippi.
    Dec. 13, 2011.

      Richard Jarrad Garner, Michael Scott Jones, Vanessa Griffith, attorneys for appellants.
    Kenneth Trey O’Cain, John Sanford McDavid, Donald A. McGraw Jr., Daniel Starr Spivey, attorneys for appellees.
    Before LEE, C.J., BARNES and ROBERTS, JJ.
   ROBERTS, J., for the Court:

¶ 1. On October 20, 2008, Amanda Edwards, Dextra Davis, Hilda Johnson, Heather Davis, Brian Walden, Kimberly Taylor, and Donna Smith (collectively Employees) filed suit in the Hinds County Circuit Court against American General Life and Accident Insurance Company and its employee Brian Muse (collectively AGLA) raising claims of fraud and misrepresentation. AGLA filed a motion to compel arbitration, which the circuit court denied in an order filed on April 27, 2010. Feeling aggrieved, AGLA appeals the circuit court’s denial of its motion to compel arbitration.

FACTS AND PROCEDURAL HISTORY

¶2. Beginning in April 2007, the Employees signed and executed individual applications for employment as sales agents with AGLA. The employee applications (Application) contained a paragraph binding the applicants to the AGLA Employee Dispute Resolution Program (EDRP) should an employment-related dispute arise. The language is as follows:

Certain American International Group Companies have adopted [EDRP], which include both informal and formal means, including binding arbitration, as the sole method of resolving most employment-related disputes. Seeking or accepting employment with [AGLA], means that I agree to resolve employment-related claims against the company or another employee through this process instead of through the courts. No right of court action exists. Likewise, the company agrees to resolve these types of disputes it may have with me through the same EDRP rather than through court action. I am still free to consult or a file a complaint with any governmental agency, such as the EEOC, regarding my legally protected rights. However, if I am not satisfied with the results of the government agency process, this program must be used instead of the court system. The details of the applicable EDRP, including any limitations or exclusions are furnished to each employee and are available to applicants upon request. I agree that if I either apply for or accept employment with [AGLA] all covered claims and disputes that arise either as part of the hiring process or during employment, if I am hired, will be subject to the terms of the applicable [EDRP].

All of the Employees were hired and began working for AGLA by August 2007; however, before beginning work for AGLA, each of the Employees also signed a document entitled “Sales Employee Agreement” (Agreement) outlining the conditions of employment, including the procedure for resolving employment-related legal claims. The provision states: “The sales employee agrees that the [AGLA EDRP], as it may be amended from time to time, is the exclusive means for resolving employment-related legal claims with [AGLA].” The provision further states that the EDRP “covers any matter relating to the relationship between the Employee and [AGLA], including all claims or disputes arising out of the interpretation or enforcement of any duties, rights, or obligations of the parties set forth in this Agreement; all claims amounting to common law tort or pursuant to public policy; and all claims under any federal, state, or local human rights or employment rights statute or wage and hour statute....” In addition to signing the Agreement, the Employees also signed an “Employee Acknowledgment Concerning [AGLA’s EDRP.]” This document served as the Employees’ acknowledgment that they received a copy of the EDRP and that they were “required to adhere to the [EDRP] and its requirement of submission of employment disputes for resolution, including its requirement for final resolution of all disputes by binding arbitration.”

¶ 3. Subsequent to the execution of these three documents, the Employees began working for AGLA. After beginning work, the Employees became dissatisfied with the compensation they were receiving because it was substantially less than the amount Muse had initially told them they would receive. The Employees then filed suit against AGLA and Muse raising multiple counts including the following: fraudulent misrepresentation and inducement, constructive fraud, fraudulent deceit, unjust enrichment, breach of implied covenants of good faith and fair dealing, negligence, aiding and abetting, infliction of emotional distress, and declaratory judgment. AGLA filed a motion to compel arbitration. The circuit court heard AGLA’s motion to compel arbitration on July 13, 2009, and denied that motion on April 23, 2010. Based on this denial, AGLA filed its notice of appeal and raises one issue. The case below has been stayed until resolution of this appeal.

¶ 4. AGLA argues on appeal that the circuit court “erred in refusing to enforce arbitration agreements between [the Employees] and [AGLA] where the arbitration agreements are in writing, signed by each [of the Employees], and encompass all claims arising from their employment and application for employment.”

ANALYSIS

¶ 5. AGLA’s sole argument on appeal is that the circuit court erred in denying its motion to compel arbitration since the arbitration agreements that all of the Employees signed when they applied to work for and before they began work at AGLA were binding on the Employees’ claims. When reviewing the grant or denial of a motion to compel arbitration, the standard of review that this Court employs is de novo. Citigroup Global Mkts., Inc. v. Braswell, 57 So.3d 638, 641 (¶ 8) (Miss.Ct.App.2011). It is also important to note that when reviewing a ruling on a motion to compel arbitration, this Court does not weigh the merits of the underlying claims. Scruggs v. Wyatt, 60 So.3d 758, 766 (¶ 16) (Miss.Ct.App.2011) (quoting Terminix Int’l, Inc. v. Rice, 904 So.2d 1051, 1054-55 (¶ 7) (Miss.2004)).

¶ 6. Our first step in analyzing the validity of a motion to compel arbitration is to look to the Federal Arbitration Act (FAA), which provides:

A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

9 U.S.C. § 2 (2006). Based on this language, a two-pronged inquiry is conducted by this Court. “ ‘The first prong has two considerations: (1) whether there is a valid arbitration agreement and (2) whether the parties’ dispute is within the scope of the arbitration agreement.’ The second prong of the inquiry is ‘whether legal constraints external to the parties’ agreement foreclosed arbitration of those claims.’ ” Braswell, 57 So.3d at 641 (¶ 9) (quoting East Ford, Inc. v. Taylor, 826 So.2d 709, 713 (¶¶ 9-10) (Miss.2002)). In his order denying AGLA’s motion to compel arbitration, the circuit judge found the Employees’ claims were not within the scope of the arbitration agreements because each of the claims arose prior to applying for employment with AGLA. We disagree and find the Employees’ claims do fall within the scope of the arbitration agreements; therefore, we find the circuit court erred in denying AGLA’s motion to compel arbitration.

¶ 7. It is undisputed by either party that the arbitration provisions found in both the Application and the Agreement were valid. The Employees’ contention is that they were told false and misleading information regarding salary and bonuses from Muse prior to applying for employment and beginning work with AGLA; therefore, the claims brought in the Employees’ complaint arose prior to them being bound by the arbitration agreements they had signed. Put another way, the Employees contend their claims are outside of the scope of the arbitration agreements because they were not employees or even applicants when the misconduct occurred. The Employees argue their claims of fraud and misrepresentation occurred prior to applying for employment because Muse contacted them and convinced them to quit their current jobs with promises of certain salaries and bonuses they would receive at AGLA. Based on Muse’s salary representations, all the Employees quit their jobs, applied for jobs with AGLA, and began to work for AGLA.

¶ 8. The Mississippi Supreme Court and this Court have long recognized that “a cause of action ‘accrues’ when it comes into existence as an enforceable claim, that is, when the right to sue becomes vested.” Forman v. Miss. Publishers Corp., 195 Miss. 90, 14 So.2d 344, 346 (1943). In order to become an enforceable tort claim, proof of the following four elements must be present: duty, breach of duty, causation, and actual damage. Bullard v. Guardian Life Ins. Co. of America, 941 So.2d 812, 815 (¶ 11) (Miss.2006). It is not vested until all four elements are present. Further, “[i]n the absence of damage, no litigable event arose.” Fletcher v. Lyles, 999 So.2d 1271, 1277 (¶23) (Miss. 2009) (quoting Bullard, 941 So.2d at 815 (¶ 9)).

¶ 9. In the current case, the Employees did not have an enforceable claim until they suffered damages. They could not have suffered damages until they quit their former jobs to begin work for AGLA. Based on our review of the record, the Employees had signed the arbitration agreements three times before quitting their former jobs and commencing work for AGLA. They are bound by the arbitration agreement because their claims only became vested when they suffered damages which was after they had agreed to arbitrate all employment-related legal issues. Therefore, the denial of AGLA’s motion to compel is reversed; judgment rendered to grant the motion to compel; and the case is remanded for further proceedings consistent with this opinion.

¶10. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS REVERSED AND RENDERED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR. MYERS, J., NOT PARTICIPATING.

      . On December 2, 2008, AGLA filed a notice of removal to remove the case from the circuit court to the United States District Court for the Southern District of Mississippi, Jackson Division. AGLA filed a motion to compel arbitration in the district court. The district court found that it lacked subject matter jurisdiction and remanded the case to the circuit court on March 31, 2009.