author: KING, Justice,

text:
    Walter D. AKINS d/b/a Akins Construction Company v. MISSISSIPPI DEPARTMENT OF REVENUE f/k/a Mississippi State Tax Commission.
    No. 2010-CA-00599-SCT.
    Supreme Court of Mississippi.
    Sept. 22, 2011.

      Harris H. Barnes, III, James Gary McGee, Flowood, attorneys for appellant.
    James L. Powell, Jackson, Kenitta Franklin Toole, attorneys for appellee.
    Before CARLSON, P.J., PIERCE and KING, JJ.
   KING, Justice,

for the Court:

¶ 1. The Mississippi Tax Commission (Commission) assessed a contractor’s tax against Walter D. Akins, d/b/a Akins Construction Company. Akins challenged the assessment administratively. After exhausting his administrative remedies, Akins appealed to the Chancery Court for the First Judicial District of Hinds County. The chancellor dismissed his complaint for failure to comply with Mississippi Code Section 27-77-7 (Rev.2005), which requires a taxpayer seeking judicial review to pay the amount ordered before filing the petition or attach a security bond, for double the amount in controversy, with the petition to appeal. Akins appeals to this Court, arguing that he was deprived of his right to due process because the appeal provisions codified in Section 27-77-7 are unconstitutional. Finding that the statute does meet constitutional standards and that Akins failed to pay the tax or post a bond in order to grant jurisdiction to the chancery court, we affirm the decision of the chancellor.

FACTS AND PROCEDURAL HISTORY

¶ 2. Akins has worked as a contractor for approximately fifteen years in Stark-ville, Mississippi. Following an audit of Akins’s records, the Commission assessed contractor’s taxes against Akins for the period of January 1, 2002, through September 30, 2005.

¶ 3. During that time period, Akins completed work on two churches. The Commission determined that Akins had not paid the contractor’s tax on the contracts for the two churches and owed $22,640. Akins claimed that he was unaware the contracts were subject to the contractor’s tax, and as a result, failed to obtain a tax exemption for component parts. Akins paid no contractor’s tax, but argues that he did pay sales tax on all component materi-áis at a rate of seven percent, and the taxes that were paid are more than sufficient to offset the assessment due for the contractor’s tax.

¶ 4. Akins appealed the Commission’s assessment to the Commission’s Board of Review. On August 1, 2008, the Board of Review issued an order affirming the assessment but reducing the amount to $20,139. Thereafter, Akins appealed to the full Commission. A hearing was held on June 3, 2009, and on July 14, 2009, the full Commission entered an order affirming the assessment as reduced by the Board of Review.

¶ 5. On August 13, 2009, Akins filed an appeal in chancery court, requesting that the sales tax he paid on component materials be applied to the amount of contractor’s tax assessed against him. As a result of the application, Akins requested that the contractor’s tax be deemed to have been paid in full and that he be given a refund for sales tax paid in excess of the assessment. On September 14, 2009, in lieu of an answer, the Commission filed a motion to dismiss. The Commission argued that the chancery court was without subject-matter jurisdiction because Akins failed to perfect his appeal by posting a bond or paying the tax. Pursuant to Mississippi Code Section 27-77-7, the chancery court has jurisdiction over an appeal from the Commission only if the taxpayer pays the amount ordered before filing the petition or attaches a security bond, for double the amount in controversy, with the petition to appeal. Miss. Code Ann. § 27-77-7 (Rev.2005). The Commission argued that, because Akins had failed to perfect his appeal, the appeal should be dismissed.

¶ 6. On October 8, 2009, Akins filed his response to the motion to dismiss, and a hearing was held on October 9, 2009. During the hearing, Akins argued that subject-matter jurisdiction was proper because he had paid sales tax on component material purchases, and if he had been properly credited for the tax paid, Section 27-77-7 would be satisfied. At the time of the hearing, Akins had provided documentation to the Commission that he had paid seven percent sales tax in the amount of $5,104.27 on component material purchases of $77,299.10. In addition, Akins argued that Section 27-77-7 violated the Fourteenth Amendment to the United States Constitution because it deprived him of due process of law. The chancellor adjourned the hearing, instructing the Commission to review the documentation provided by Akins and requesting Akins to attempt to obtain a bond.

¶ 7. On November 20, 2009, Akins provided more documentation to the Commission. The documentation indicated that he had paid seven percent sales tax in the amount of $12,242.36 on component material purchases of $187,961.70. On January 14, 2010, the chancellor reconvened the hearing on the Commission’s motion to dismiss. The Commission reported that it had reviewed Akins’s records and was willing to credit Akins in the amount of $1,331.78, resulting in an assessment of $19,887. The Commission further argued that, even with the credit, the court lacked subject-matter jurisdiction. Akins reported that he had attempted, but was unable, to secure a bond, and accordingly, renewed his constitutional objections.

¶ 8. On March 9, 2010, the chancellor granted the Commission’s motion to dismiss for lack of subject matter jurisdiction due to Akins’s failure to pay the taxes under protest or to post bond within the statutory time period allotted. On April 7, 2010, Akins filed his notice of appeal. Akins argues that the conditions prescribed by Section 27-77-7 render the opportunity for judicial review constitutionally inadequate, depriving him of his right to due process of law.

DISCUSSION

¶ 9. “Whether [a party] received due process is a question of law, which this Court will review de novo.” J.C.N.F. v. Stone County Dep’t of Human Servs., 996 So.2d 762, 770 (¶ 27) (Miss.2008). Whether AMns received due process turns on the issue of statutory interpretation. Statutory interpretation is also a matter of law, and is to be reviewed de novo. Adams v. Baptist Mem’l Hospital-Desoto, Inc., 965 So.2d 652, 655 (Miss.2007) (citations omitted).

¶ 10. Akins’s claim, that he is being deprived of his day in court, involves the concept of procedural due process. Jones v. Miss. Dep’t of Transp., 744 So.2d 256, 265 (Miss.1999) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 1154, 71 L.Ed.2d 265 (1982)). To prevail, Akins must prove (1) he was deprived of a protected property interest and (2) he was denied the process due him. Id.

1. Protected Property Interest

¶ 11. The United States Supreme Court has recognized that the “exaction of a tax constitutes a deprivation of property, [and] the State must provide procedural safeguards against unlawful exactions in order to satisfy the commands of the Due Process Clause.” McKesson v. Div. of Alcoholic Beverages and Tobacco, 496 U.S. 18, 36, 110 S.Ct. 2238, 2250, 110 L.Ed.2d 17 (1990).

2. Due Process

¶ 12. Generally, due process requires notice and a meaningful opportunity to be heard. Vincent v. Griffin, 872 So.2d 676, 678 (2004) (citations omitted). In the context of tax assessments and collections, a meaningful opportunity to be heard requires that a taxpayer be provided with either a predeprivation process or postde-privation process to contest the validity of an imposed tax. McKesson, 496 U.S. at 36-37, 110 S.Ct. 2238.

Predeprivation Process

¶ 13. Mississippi Code Section 27-77-5 (Rev.2005) provides a predeprivation process in which a taxpayer has the opportunity to be heard. An aggrieved taxpayer may first appeal to the Board of Review. The Board of Review is composed of employees of the agency appointed to the Board by the Commissioner to hear matters in a quorum of not less than three. From there, the taxpayer may appeal to the full Commission, consisting of the Commissioner and two Associate Commissioners. Akins availed himself of both of these opportunities and was heard by both administrative bodies.

¶ 14. Akins argues that administrative review is not sufficient, and he is entitled to judicial review. We disagree. Administrative-review procedures are adequate in providing due process if the hearings are conducted before an individual is deprived of a property interest. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (citations omitted).

¶ 15. Akins was provided a predeprivation process, two hearings through administrative review, to contest the validity of the tax. Akins was afforded due process.

Postdeprivation Process

¶ 16. In order for a postdeprivation process to satisfy the Due Process Clause, the State must provide taxpayers with a fair opportunity to challenge the accuracy and legal validity of their tax obligation and a “clear and certain remedy” for any erroneous or unlawful tax collection. McKesson, 496 U.S. at 38, 110 S.Ct. 2238 (citing Atchison, T. & S.F. Ry. Co. v. O’Connor, 223 U.S. 280, 285, 32 S.Ct. 216, 217, 56 L.Ed. 436 (1912)).

¶ 17. Mississippi Code Section 27-77-7 requires the taxpayer to pay the amount in controversy or post a bond for double the amount before seeking judicial review. Miss.Code Ann. § 27-77-7 (Rev.2005). In McKesson, the United States Supreme Court held “that a State need not provide predeprivation process for the exaction of taxes.” Id. at 37, 110 S.Ct. 2238. “[A]l-lowing taxpayers to litigate their tax liabilities prior to payment might threaten a government’s financial security, both by creating unpredictable interim revenue shortfalls against which the State cannot easily prepare, and by making the ultimate collection of validly imposed taxes more difficult.” Id. Thus, the requirement to pay the tax before seeking judicial review has been held to provide taxpayers with a fair opportunity to challenge the validity of the tax.

¶ 18. The State may satisfy the obligation of providing a clear and certain remedy through any form of relief, including a refund of the excess taxes. Id. In this case, Akins argues that he paid sales tax and deserves a refund or credit for what he paid over and above what was due as contractor’s tax. Section 27-77-7 provides the taxpayer with the process for seeking a refund or credit for an alleged overpayment of tax or for taxes paid in protest. This court has held that a refund is a clear and certain remedy. See H.J. Wilson Co., Inc. v. State Tax Comm’n of State, 737 So.2d 981 (Miss.1998). Accordingly, Akins was provided a postdeprivation process, a fair opportunity to challenge the tax and the ability to receive a refund if successful. Akins was afforded due process.

CONCLUSION

¶ 19. Mississippi Code Sections 27-77-5 and 27-77-7 provided Akins two full administrative hearings and an opportunity for judicial review in order to contest the validity of the tax assessment. The due process requirements were satisfied by both a predeprivation and a postdeprivation process for review. Finding that the statute does meet constitutional standards and Akins failed to pay the tax or post a bond in order to grant jurisdiction to the chancery court, we affirm the decision of the chancellor.

¶ 20. AFFIRMED.

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

      . In 2009, legislation reorganized the State Tax Commission and placed its administrative functions in a Department of Revenue and its authority over administrative appeals in an independent Board of Tax Appeals, and made conforming amendments and repeals as necessary to accomplish the same. 2009 Miss. Laws 492 § 115.

      . Mississippi Code Annotated Section 27-77-7 was amended during the 2009 general session. 2009 Miss. Laws 492 § 115. Among other things, the amendment lengthens the time to file an appeal from thirty (30) days to sixty (60) days, reduces the bond required in lieu of payment from double to one-half the amount in controversy, and gives the chancellor the authority to waive the bond in its entirety if the court finds the State’s interest is adequately protected. The amendment’s effective date was July 1, 2010. The amendment excluded all pending tax claims; thus, rendering the amendment inapplicable to this appeal. See Miss.Code Ann. § 27-77-7 (Rev. 2010).

      . Mississippi Code Section 27 — 65—21 (1 )(a)(i) requires "every person engaging or continuing in this state in the business of contracting or performing a contract or engaging in any of the activities, or similar activities, listed below for a price, commission, fee or wage, there is hereby levied, assessed and shall be collected a tax equal to three and one-half percent (3-½ %) of the total contract price or compensation received....” See Miss.Code Ann. § 27 — 65—21(1 )(a)(i) (Rev.2010).

      . Mississippi Code Section 27-65-21(3) instructs a person performing a construction activity contract to apply for and obtain a material purchase certificate from the commissioner which may entitle the holder to purchase materials and services that are to become a component part of the structure to be erected or repaired with no tax due. See Miss.Code Ann. § 27-65-21(3) (Rev.2010).

      . Mississippi Code Section 27-65-17(1)(a) states that "every person engaging or continuing within this state in the business of selling any tangible personal property whatsoever there is hereby levied, assessed and shall be collected a tax equal to seven percent (7%) of the gross proceeds of the retail sales of the business." See Miss.Code Ann. § 27-65-17(1)(a) (Rev.2010).

      . At the time of Akins’s appeal, Section 27-77-7 stated the following, in pertinent part:
      (1) The findings and order of the commission entered under Section 27-77-5 shall be final unless the taxpayer shall, within thirty (30) days from the date of the order, file a petition in the chancery court appealing the order and pay the tax or post the bond as required in this chapter. The petition shall be filed against the State Tax Commission and shall contain a concise statement of the facts as contended by the taxpayer, identify the order from which the appeal is being taken and set out the type of relief sought.

      (3) A petition filed under subsection (1) of this section that appeals an order of the commission affirming a tax assessment, shall be accompanied by a surety bond approved by the clerk of the court in a sum double the amount in controversy, conditioned to pay the judgment of the court. The clerk shall not approve a bond unless the bond is issued by a surety company qualified to write surety bonds in this state. As an alternative to the posting of bond, a taxpayer appealing an order of the commission affirming a tax assessment may, prior to the filing of the petition, pay to the agency, under protest, the amount ordered by the commission to be paid and seek a refund of such taxes, plus interest thereon.
      (4) ... The chancery court in which a petition under subsection (1) of this section is properly filed shall have jurisdiction to hear and determine said cause or issues....
      Miss.Code Ann. § 27-77-7 (Rev.2005).

      . Akins filed his notice of appeal concerning the validity of a statute, but failed to serve a copy of his brief, clearly setting out the question presented, on the Attorney General. Pursuant to Mississippi Rule of Appellate Procedure 44(c), this Court provided notice and a right to respond to the Attorney General. On August 17, 2011, the Attorney General filed his response.


source: Caselaw Access Project

author: LEE, P.J.,

license: Public Domain

text:
    Ray FOUNTAIN, Appellant v. SKL INVESTMENTS, INC., and Alton Hall, Appellees.
    No. 2009-CA-00122-COA.
    Court of Appeals of Mississippi.
    May 11, 2010.
    Rehearing Denied May 31, 2011.
    Certiorari Denied Sept. 15, 2011.

      Christopher H. Neyland, Jackson, attorney for appellant.
    Lisa Jordan Dale, T. Jackson Lyons, Jackson, Claude Pintard, Jr., Natchez, attorneys for appellees.
    Before LEE, P.J., GRIFFIS, and ISHEE, JJ.
   LEE, P.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. Ray Fountain and SKL Investments, Inc. (SKL) verbally discussed a purchase contract for certain realty located in Adams County, Mississippi. The agreement was memorialized in writing and signed by SKL’s representative, Ashley Carroll, on January 23, 2007. On February 28, 2007, Fountain signed the purchase contract and returned it to SKL with his February payment of $300. A payment of $300 had already been received on January 22, 2007. The record does not contain information regarding when SKL mailed the purchase contract to Fountain or when Fountain received it.

¶ 2. The purchase contract contained the following language:

The purchase price is only $3000 (three thousand dollars and zero cents) to be paid in 10 consecutive monthly payments of $300. The monthly payment will be due on the 23rd of each month with the next monthly payment being due on or before February 23, 2007. January’s monthly payment has already been received.
If payment is not received within 10 days of the due date, the payment will be late and the purchaser will be charged a $25.00 late fee. If the payment is not received within 30 days of the due date the purchaser will be in default, and this contract will be a nullity at seller’s option. Payment shall be deemed to be made when received by SKL Investments.
Upon receipt of final payment, Seller will issue a quitclaim deed to the Purchaser. ...
All offers are on a first come first served basis only, and until good funds have been received, confirmed, and accepted, we reserve the right to refund or withdraw the proposed sale at any time. All tax deeds are sold “as is” and “where is.” All sales are final.

¶ 3. Attached to the purchase contract was a payment schedule, which showed the amount of $800 due on January 23, 2007, and on the 23rd day of each month thereafter. The payment schedule showed that $300 had been received on January 22, 2007, by a person with the initials “L.L.” In the row containing the due date of February 23, 2007, $300 is handwritten in the “amount received” column, and the number 110270 is handwritten in the “check number” column. There is no indication as to when the February payment was received.

¶ 4. Fountain hand delivered the March payment to SKL on March 19, 2007. Shortly thereafter, SKL returned all of Fountain’s payments. The record does not reflect whether SKL negotiated the payments or how SKL refunded Fountain’s payments.

¶ 5. On March 28, 2007, SKL conveyed the property in question to Alton Hall. Thereafter, Fountain filed suit against SKL and Hall seeking specific performance of the purchase contract, the setting aside of the deed to Hall, and damages. The contract in question was attached to the complaint.

¶ 6. SKL filed a motion to dismiss pursuant to Rule 12(b)(6) of the Mississippi Rules of Civil Procedure. After hearing arguments from both parties, the chancellor granted SKL’s motion to dismiss, finding that SKL had made acceptance of the purchase contract by February 23, 2007, a condition of its offer to Fountain.

¶ 7. Fountain now appeals, asserting the following: (1) the chancellor erred in dismissing the action without a hearing on the merits, and (2) the chancellor erred in holding that there was no binding contract between the parties. Finding reversible error in regard to the second issue, our resolution of the second issue is dispositive of this appeal.

STANDARD OF REVIEW

¶ 8. The Court will not disturb a chancellor’s findings if they are supported by substantial evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or applied an erroneous legal standard. Sanderson v. Sanderson, 824 So.2d 623, 625-26 (¶ 8) (Miss.2002). The principle of “manifest error” applies only to findings of fact. Boggs v. Eaton, 379 So.2d 520, 522 (Miss.1980). However, we review the grant or denial of a motion to dismiss de novo. Harris v. Miss. Valley State Univ., 873 So.2d 970, 988 (¶ 54) (Miss.2004).

DISCUSSION

¶ 9. A motion to dismiss under Rule 12(b)(6) raises the issue of whether the complaint states a claim upon which relief can be granted. “When considering a motion to dismiss, the allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond a reasonable doubt that the plaintiff will be unable to prove any set of facts in support of his claim.” Harris, 873 So.2d at 988 (¶ 54) (citing T.M. v. Noblitt, 650 So.2d 1340, 1342 (Miss.1995)).

¶ 10. According to Fountain’s complaint and the attached contract, SKL agreed to sell the property to Fountain for $3,000. Fountain was to pay $300 per month for ten months. The contract noted that one monthly payment had already been accepted. The contract states that Fountain had a grace period of ten days to make a payment after the due date. Fountain made the second payment on February 28, which was within the ten-day grace period. SKL accepted this payment and another payment in March. According to the contract, the monthly payment was due within thirty days after the due date. If any payment was received after this thirty days, then Fountain would be in default, and SKL had the option to terminate the contract. Fountain made three payments that were accepted by SKL according to the terms of the contract.

¶ 11. It is clear that the parties entered into an agreement for Fountain to buy the property from SKL for $3,000, a fact which neither party disputes. In finding that there was no binding contract between the parties, the chancellor went beyond the scope of Rule 12(b)(6). We find that Fountain’s complaint is legally sufficient to withstand SKL’s motion to dismiss; thus, we reverse and remand.

¶ 12. THE JUDGMENT OF THE ADAMS COUNTY CHANCERY COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

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


author: GRIFFIS, J„

text:
    Billy NELSON, and Gaynelle Nelson, Individually and as Parents and Next Friends of Justin Nelson, and as Representatives of all Wrongful Death Beneficiaries and Heirs of Bobby Nelson, Deceased, Appellants v. BAPTIST MEMORIAL HOSPITAL-NORTH MISSISSIPPI, INC.; William E. Henderson, Jr., M.D.; Oxford Clinic for Women, a Partnership; Ira Lamar Couey, M.D., General Partner; R. Blake Smith, M.D., General Partner; William E. Henderson, Jr., M.D., General Partner; and Bo Martin, M.D., Appellees.
    No. 2009-CA-00081-COA.
    Court of Appeals of Mississippi.
    Sept. 21, 2010.
    Rehearing Denied Feb. 15, 2011.

      Margaret P. Ellis, Roderick Ward III, Jackson, attorneys for appellants.
    Walter Alan Davis, Oxford, attorney for appellees.
    Before LEE, P.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J„

for the Court:

¶ 1. This appeal involves claims for medical malpractice and wrongful death. Previously, this Court dismissed the plaintiffs/appellants’ claim, without prejudice, in Nelson v. Baptist, 972 So.2d 667 (Miss.Ct. App.2007) (“Nelson /”). Thereafter, the plaintiffs/appellants provided pre-suit notice and filed another complaint, only for it to be dismissed again by the circuit court. The issues before this Court concern whether the statute of limitations was tolled by the earlier or original complaint and whether the applicable statute of limitations had expired. Since Nelson I was handed down, the Mississippi Supreme Court has changed its interpretation of the pre-suit provisions of the medical-malpractice statute, which we must now recognize as controlling law. We find reversible error in the circuit court’s judgment, and we reverse the judgment and remand this case for further proceedings consistent with this opinion.

PROCEDURAL AND FACTUAL HISTORY

¶ 2. In 2001, Billy and Gaynelle Nelson were expecting a child. Gaynelle went to the Oxford Clinic for Women (“Clinic”) for prenatal care. Gaynelle’s child was scheduled to be delivered via a Caesarean section. Id. at 669 (¶ 2).

¶ 3. On April 25, 2001, Gaynelle was admitted to Baptist Memorial Hospital— North Mississippi, Inc. (“Hospital”). On April 26, 2001, Billy and Gaynelle’s son, Bobby Nelson, was born. Bobby experienced problems in his birth. Later, Bobby was transferred to another hospital and remained there until he died on July 14, 2001. Id.

¶ 4. On July 9, 2003, the Nelsons filed a lawsuit in the Circuit Court of Lafayette County. The complaint alleged that the negligence of the Hospital, the Clinic, Dr. William E. Henderson Jr., and other doctors and employees of the Clinic (“doctors”) had caused the wrongful death of Bobby. The Nelsons’ complaint did not provide the required sixty days’ notice to the defendants before the complaint was filed. See Miss.Code Ann. § 15-1-36(15) (Rev.2003). The Nelsons did not attach an expert-consultation certificate to the complaint. See Miss.Code Ann. § 11-1-58 (Supp.2009). See also Nelson, 972 So.2d at 669-70 (¶ 3).

¶ 5. The Nelsons filed a motion for more time to serve process. On November 3, 2003, Circuit Judge Andrew Howorth entered an order that granted the Nelsons an additional ninety days to serve process. Thereafter, on November 10, 2003, the Nelsons sent the required pre-suit notice to all defendants. The Nelsons then waited sixty days and filed an amended complaint. The amended complaint included the required certificate that stated that their attorney had consulted a qualified expert. The Nelsons then served process on the defendants. Id. at 670 (¶ 4).

¶ 6. Then, Judge Howorth recused himself from the case. It was reassigned to Circuit Judge Henry Lackey. The Hospital then filed a motion to reconsider the ninety-day time-extension order that had been entered by Judge Howorth, which was joined by the other defendants. Upon reconsideration, the circuit court vacated the original order granting the time extension for lack of good cause and dismissed the Nelsons’ claim with prejudice. The circuit court also “found the statute of limitations had expired for the following reasons: (1) failure to give written notice sixty days before filing a medical malpractice claim, (2) failure to include an attorney certificate with the claim, and (3) ineffective service of process.” Id. at (¶ 5).

¶ 7. The Nelsons filed a motion to reconsider. Judge Lackey denied the motion and affirmed his earlier ruling. Id. at (¶ 6). The Nelsons appealed. This Court’s opinion made five conclusions. First, the Court held that Judge Lackey had improperly vacated Judge Howorth’s original order that granted the Nelsons’ extension of time to serve process. Id. at 672 (¶ 13). Second, the Court held that the Nelsons’ failure to provide the statutory sixty-day notice before commencing the action warranted dismissal. Id. at 673 (¶ 17). Third, the Court held that the Nelsons’ failure to file a certificate that stated that their attorney had consulted a qualified expert also warranted dismissal. Id. at 673 (¶ 20). Fourth, the Court held that the question of whether the Nelsons properly served process on the Clinic and the doctors was moot because the circuit court should have dismissed the original action. Id. at (¶ 21). Fifth, the Court held that the case should be dismissed without prejudice, rather than dismissed with prejudice. Id. at 674 (¶ 23).

¶ 8. The Mississippi Supreme Court denied certiorari on January 3, 2008. The mandate was issued on January 24, 2008. The issuance of the mandate caused the Nelsons’ lawsuit to be dismissed without prejudice.

¶ 9. The Nelsons then followed the statutory requirements for pre-suit notice. A new complaint, the instant action, was filed on March 26, 2008.

¶ 10. The defendants responded with a motion to dismiss. In their motion, the defendants argued that the statute of limitations had expired on April 26, 2003, which was two years after Bobby was born.

¶ 11. On July 2, 2008, Judge Lackey entered an order that granted the defendants’ motion to dismiss, and he dismissed the instant action with prejudice. Judge Lackey considered “whether the filing of the Original Complaint on July 9, 2003[,] without first giving the Defendants the Sixty[-]Day notice as required by § 15 — 1— 36 MCA tolled the two[-]year Statute of Limitation.” The circuit court determined that the original complaint did not toll the statute of limitations because the Nelsons had failed to follow the statutory requirements with the sixty-day notice and had failed to attach the expert-consultation certificate.

¶ 12. The Nelsons filed a motion to reconsider. Judge Lackey denied the motion. It is from this judgment that the Nelsons now appeal.

STANDARD OF REVIEW

¶ 13. We review the circuit court’s grant or denial of a motion to dismiss under a de novo standard of review. Harris v. Miss. Valley State Univ., 873 So.2d 970, 988 (¶ 54) (Miss.2004). “When considering a motion to dismiss, the allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond a reasonable doubt that the plaintiff will be unable to prove any set of facts in support of his claim.” Id. (citation omitted).

ANALYSIS

¶ 14. The ultimate issue presented in this appeal is whether the statute of limitations expired before the Nelsons had properly asserted their claims. However, this is an unusual case. The same parties with the same claims have previously been before this Court. Following the issuance of the mandate in Nelson I, as expected, the plaintiffs filed another action against the same defendants and asserted the same claims. To complicate matters further, in the intervening period from our earlier decision until now, the Mississippi Supreme Court has changed the law that would have now caused a different result than in Nelson I.

¶ 15. We will begin with the review of the judgment from which the Nelsons appeal. The circuit court considered “whether the filing of the Original Complaint on July 9, 2003[,] without first giving Defendants the Sixty[-]Day notice as required by § 15-1-36(15) MCA[] tolled the two[-]year Statute of Limitation.” Since Bobby was born on April 26, 2001, the defendants argued that the limitations period had ended on April 26, 2003. Thus, they argued that the limitations period ended before the Nelsons’ first complaint was filed. The Nelsons argued that since Bobby died on July 14, 2001, the limitations period would have expired on July 14, 2003, two years after his death. The Nelsons also argued that the period was tolled when they filed their complaint on July 9, 2003, for 120 days plus an additional 90 days by Judge Howorth’s order.

¶ 16. In the judgment, the circuit court held:

... The giving of 60[-]days notice of intent to file suit pursuant to § 15-1-36 MCA is jurisdictional. The filing of the first complaint was a nullity and therefore could not toll the [sjtatute of [ljimi-tations. See Black v. City of Tupelo, 853 So.2d 1221.
Therefore, it is immaterial whether the [sjtatute ran on April 26, 2003 or July 14, 2003. The Plaintiffs did not file a proper lawsuit over which the Court had jurisdiction until long after the two years had expired and therefore this action is time barred.
This matter is time barred and is hereby dismissed with prejudice for failure of the Plaintiffs to file their Complaint within the time allowed by statute.

We consider the two issues that are dis-positive of this appeal.

1. Did the Nelsons’ original complaint toll the statute of limitations or was it a nullity ?

¶ 17. The circuit court relied on Black v. City of Tupelo, 853 So.2d 1221, 1225-26 (¶¶ 12-13) (Miss.2003), to conclude that the Nelsons’ original complaint, filed on July 9, 2003, was a nullity. In Black, the supreme court considered whether the failure to provide the statutorily required pre-suit notice was necessary under the Mississippi Tort Claims Act (MTCA). Id. The supreme court determined that the trial court was correct to dismiss Eddie Black’s case because he had failed to substantially comply with the notice requirement, and as a result, his lawsuit was barred under the MTCA.

¶ 18. We must examine whether the pre-suit requirements of the MTCA also govern the pre-suit requirements for medical-malpractice actions.

A. Whether the Nelsons’ failure to attach the expert-consultation certificate to the original complaint on July 9, 2003, caused the statute of limitations to continue to run.

¶ 19. Mississippi Code Annotated section 11-1-58 (Supp.2009) requires that the attorney in a lawsuit against a healthcare provider: (1) perform certain acts prior to filing suit, and (2) when the suit is filed, attach a certificate to the complaint declaring that the required acts were performed. In Nelson I, this Court relied on Walker v. Whitfield Nursing Center, Inc., 931 So.2d 583, 592 (¶ 33) (Miss.2006), to hold that the Nelsons’ failure to comply with section 11-1-58 warranted dismissal. Nelson, 972 So.2d at 673 (¶¶ 18-22).

¶ 20. In Wimley v. Reid, 991 So.2d 135, 138 (¶ 16) (Miss.2008), the supreme court overruled Walker. The supreme court held:

In addressing the specific issue presented by today’s case, we are unable to ignore the constitutional imperative that the Legislature refrain from promulgating procedural statutes which require dismissal of a complaint, and particularly a complaint filed in full compliance with the Mississippi Rules of Civil Procedure. We find [sjection 11-1-58’s requirement that a complaint be accompanied by a certificate or waiver to be just such a procedural statute.
In 1981, this Court adopted the Mississippi Rules of Civil Procedure, wherein the requirements for filing a complaint are clearly, unambiguously, and exhaustively set forth. Rule 8(a) requires “a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled.... ” Rule 8(e) provides that averments in the complaint be “simple, concise, and direct,” and that “[n]o technical forms of pleading ... are required.” Section 11-1-58’s requirement that a certificate accompany the filing of the complaint contradicts these provisions of the Mississippi Rules of Civil Procedure. Furthermore, the statutory requirement is totally inconsistent with Rule 8(f)’s requirement that “pleadings shall be so construed as to do substantial justice.”

Id. at (¶¶ 14-15).

¶21. After Wimley, “a complaint, otherwise properly filed, may not be dismissed, and need not be amended, simply because the plaintiff failed to attach a certificate or waiver.” Id. at (¶ 16). However, the plaintiff still must comply with the pre-suit requirements of section 11-1-58 and consult with an expert prior to filing suit. Id. at (¶ 20).

¶ 22. Here, in light of Wimley, we must conclude that the Nelsons’ attorney had consulted an expert prior to filing the original complaint. In accordance with the intervening change of law, we find that the Nelsons were in compliance with section 11-1-58. Accordingly, the failure to comply with section 11-1-58 may not be considered as proper authority to dismiss the Nelsons’ claims.

B. Whether the Nelsons’ failure to provide sixty days’ pre-suit notice before filing the original complaint caused the statute of limitations to continue to run.

¶ 23. Mississippi Code Annotated section 15-1-36(15) provides that:

No action based upon the health care provider’s professional negligence may be begun unless the defendant has been given at least sixty (60) days prior written notice of the intention to begin the action.

¶ 24. The Hospital claims that since the lawsuit was not lawfully filed, it is without legal effect; thus, the filing failed to toll the statute of limitations.

¶ 25. In Price v. Clark, 21 So.3d 509 (Miss.2009), the supreme court recently resolved this issue. The plaintiff failed to comply with notice requirements as required in section 15-1-36 before filing the complaint. Id. at 513-15 (¶ 4). The supreme court found that the statute of limitations is tolled when a plaintiff files a complaint, even though they failed to provide the statutorily required pre-suit notice. Id. at 522 (¶ 30). The supreme court held that:

Rule 3(a) of the Mississippi Rules of Civil Procedure states “[a] civil action is commenced by filing a complaint with the court.” Ordinarily, when a complaint is filed and properly served, that complaint tolls the running of the statute of limitations. Owens v. Mai, 891 So.2d 220, 223 (Miss.2005).
While failure to provide proper statutory notice cannot be cured by serving no-tiee-of-claim letters after a complaint is filed, a properly served complaint — albeit a complaint that is wanting of proper pre-suit notice — should still serve to toll the statute of limitations until there is a ruling from the trial court.

Id. at 521-23 (¶¶ 27, 30).

¶26. The Hospital contends that the supreme court decision of Thomas v. Warden, 999 So.2d 842 (Miss.2008) supports its view that the failure to comply with the requirement causes the complaint to have no legal effect and, thus, does not toll the statute of limitations. The defendants also assert that the Price and Thomas decisions conflict. We disagree.

¶ 27. In Thomas, the plaintiff failed to give the defendants the sixty-day pre-suit notice, and the supreme court found: “because the defendants in this case did not have ‘sixty days’ prior written notice of the intention to begin the action,’ this lawsuit was not lawfully filed, and it is of no legal effect.” Thomas, 999 So.2d at 846 (¶ 15).

¶ 28. However, the finding of “no legal effect” did not imply that the filing did not toll the limitations period, as the Hospital argues. In fact, Justice Dickinson, writing for the majority, explicitly stated in Thomas that:

this opinion should not be read as dis-positive of whether the statute of limitations has, or has not, expired. We do not today address that issue, and hold only that the suit was filed prematurely.

Id. at 847 n. 3 (emphasis added). The proper remedy for the plaintiffs failure to comply with the pre-suit statutory requirements was “dismissal without prejudice” just as this Court found in Nelson I.

¶ 29. Price was not the first supreme court decision to conclude that the limitations period is tolled despite a plaintiff failing to comply with the statutory pre-suit requirements. In Arceo v. Tolliver, 949 So.2d 691, 692 (¶ 3) (Miss.2006) (“Tol-liver I ”), the plaintiff filed the original suit for medical malpractice, and like the Nelsons, he failed to send the required pre-suit notice to the defendants. Like Nelson I and Thomas, the proper remedy was dismissal without prejudice. In Arceo v. Tolliver, 19 So.3d 67, 73 (¶ 25) (Miss.2009) (“Tolliver II”), the supreme court ruled that the limitations period was tolled in Tolliver I on the day the plaintiff filed the complaint despite his failure to strictly comply with the notice requirements of section 15-1-36.

¶ 30. Just as the plaintiffs in Thomas, Tolliver I, and Price, the Nelsons failed to comply with the statutory notice requirements when they filed their original complaint. Thus, the proper remedy was dismissal without prejudice. Price, Tolliver I, and Tolliver II clearly establish that the statute of limitations was tolled when the Nelsons filed their original complaint presuming proper service to defendants. There was no question that the Hospital was properly served with process. There remains an issue as to whether service of process on the Clinic and the doctors was obtained, and it will be discussed later in this opinion.

¶ 31. Accordingly, we find that the circuit court was in error when it determined that the Nelsons’ filing of their first complaint was a nullity and that it did not toll the statute of limitations. Indeed, the Nelsons’ filing of the original complaint tolled the statute of limitations from July 9, 2003, until this Court issued its mandate on January 23, 2008.

2. Whether the statute of limitations had expired before the original complaint was filed on July 9, 2003?

¶ 32. The circuit court did not address when the limitations period began because it found that since the complaint failed to toll the statute of limitations, there was no need to determine when the statute of limitations began to run. Since we find it necessary, we must determine when the statute of limitations began to run and the length of the limitations period.

¶ 33. The Nelsons argue that, in Nelson I, we found that the statute of limitations for the wrongful-death action was two years and that it had began to run on the date of Bobby’s death — July 14, 2001. The Hospital, the Clinic, and the doctors argue that the statute of limitations expired before the Nelsons filed their original complaint on July 9, 2003.

¶ 34. Here, the plaintiffs’ claim is subject to the Mississippi wrongful-death statute, which provides that “there shall be but one (1) suit for the same death” and that:

Whenever the death of any person or of any unborn quick child shall be caused by any ... negligent act or omission, ... as would, if death had not ensued, have entitled the party injured or damaged thereby to maintain an action and recover damages in respect thereof, ... and such deceased person shall have left [wrongful-death beneficiaries] ..., the [defendant] ... that would have been liable if death had not ensued ... shall be liable for damages, notwithstanding the death....

Miss.Code Ann. § 11-7-13 (Rev.2004).

¶ 35. The statute of limitations for the wrongful-death action is limited by the statute of limitations for the underlying tort. Here, the underlying tort is medical negligence. It is subject to a two-year statute of limitations pursuant Mississippi Code Annotated section 15-1-36(2) (Rev. 2003).

¶ 36. Prior to 2006, this Court and the supreme court found that the wrongful-death action began to run on the date of death. However, in Jenkins v. Pensacola Health Trust, 933 So.2d 923 (Miss.2006), the supreme court changed the law.

¶ 37. In Jenkins, the plaintiff brought a claim for the negligent wrongful death of a nursing home patient. Jenkins, 933 So.2d at 924 (¶ 2). The tortious conduct occurred on December 31, 1999. Id. at (¶ 3). As a result of this conduct, the patient died on October 4, 2001. Id. at (¶ 2). The wrongful-death action was filed on December 31, 2002. Id. The supreme court found that “a wrongful[-]death claim is subject to, and limited by, the statute of limitations associated with the claims of specific wrongful acts which allegedly led to the wrongful death.” Id. at 926 (¶ 12). The supreme court held it was time-barred because it was filed more than three years after December 31, 1999, the date the tor-tious conduct occurred. Id. at (¶ 13).

¶ 38. The Jenkins decision had a detrimental effect on wrongful-death beneficiaries’ claims because no one knew when to file their action. Justice Kitchens recently summed up this concern when he stated:

For more than 150 years, the rule in Mississippi was simple: the statute of limitations for claims filed pursuant to the wrongful[-]death statute could not begin to run until death. Yet, beginning with Jenkins v. Pensacola Health Trust, Inc., 933 So.2d 923 (Miss.2006), this Court embarked upon a curious and confusing course that has drastically changed and unduly complicated this plain and simple rule, and we have yet to settle on a controlling rule of law.

Saul ex rel. Heirs of Cook v. S. Cent. Reg’l Med. Ctr., Inc., 25 So.3d 1037, 1042 (¶ 17) (Miss.2010) (Kitchens, J., concurring in part).

¶ 39. Now, Jenkins has been further clarified. In Caves v. Yarbrough, 991 So.2d 142, 149-50 (¶ 29) (Miss.2008), the supreme court explained that “where death is not an immediate result of the tort, the limitation periods for the various kinds of claims may not begin to run at the same time.” These claims under the wrongful-death action include the beneficiaries’ “wrongful-death” claims, such as loss of consortium, society, and companionship, as well as the decedent’s own pre-death “survival-type” claims, such as claims for his or her personal injury, property damage, and medical expenses. Id.

¶ 40. In Saul, 25 So.3d at 1040 n. 4, the supreme court explicitly stated that:

To the extent our decision in Jenkins v. Pensacola Health Trust, Inc., 933 So.2d 923 (Miss.2006), implies otherwise, we clarify now that the so-called “wrongful-death” claims included in the wrongful-death action cannot accrue, and the statute of limitations for those claims cannot begin to run, until death.

(Emphasis added).

¶ 41. Here, the Nelsons asserted two separate claims — a wrongful-death claim and a survival claim based in medical malpractice. Since death was not an immediate result of the alleged negligence, the limitations periods for the two claims may not necessarily begin to run at the same time.

A. Whether the wrongful-death claims expired before the Nelsons filed the original complaint on July 9, 2003.

¶ 42. The Nelsons argue that the wrongful-death claims accrued on July 14, 2001, the day Bobby died. The Hospital asserts that the wrongful-death claims accrued on April 25, 2001, the same day as the survival claims, because the wrongful-death claims are derivatives of the survival claims. The Clinic and the doctors contend that it does not matter when the claims accrued because the Nelsons failed to properly serve them with process.

¶43. In University of Mississippi Medical Center v. McGee, 999 So.2d 837, 840 (¶ 11) (Miss.2008), the supreme court held that because “[t]he statute of limitations for [wrongful-death] claim[s], however, [canjnot begin to run until, at the earliest, ... the date of death, and the date [the wrongful-death elaimant]’s damages accrued.” Thus, we find that the statute of limitations for the Nelsons’ wrongful-death claims began to run on the day Bobby died, which was July 14, 2001. Accordingly, the limitations period for the wrongful-death claims was two years from July 14, 2001, and the limitations period had not expired by the time the Nelsons had filed the original complaint on July 9, 2003.

B. Whether the survival claims expired before the Nelsons filed the original complaint on July 9, 2003.

¶ 44. The Nelsons also argue that if the cause of action for the survival claims arose on the date of Bobby’s birth, then the statute of limitations was either two years from the date of death, July 14, 2003 or, alternatively, eight years from the day he was born, April 26, 2009, pursuant Mississippi Code Annotated section 15-1-36(3) (Rev.2003).

¶ 45. The Hospital and the doctors claim that the statute of limitations began to run on the day the alleged negligent acts or omissions occurred — April 25, 2001. The Hospital asserts that the time period was two years from the day Bobby was born. In the alternative, the Hospital contends that, under Mississippi Code Annotated section 15-1-55 (Rev.2003), the limitations period is one year from the date of Bobby’s death. The Clinic and the doctors contend that, no matter when the period began, the Nelsons’ claims against them had expired because the Nelsons failed to serve them process.

¶ 46. The survival claim was a claim for medical malpractice. Medical-malpractice claims are subject to a two-year statute of limitations. Mississippi Code Annotated section 15-1-86(2) provides that a medical-malpractice claim “must be brought ‘within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered.’ ” If this limitations period applied, the Nelsons’ claim would have accrued two years from April 25, 2001, the day the alleged act, omission, or neglect occurred.

¶ 47. However, the Mississippi Legislature has provided a specific statute of limitations for a minor plaintiff with a medical-malpractice claim. Mississippi Code Annotated section 15-1-36(8) provides:

[1]f at the time at which the cause of action shall or with reasonable diligence might have been first known or discovered, the person to whom such claim has accrued shall he six (6) years of age or younger, then such minor or the person claiming through such minor may, notwithstanding that the period of time limited pursuant to subsections (1) and (2) of this section shall have expired, commence action on such claim at any time within two (2) years next after the time at which the minor shall have reached his sixth birthday, or shall have died, whichever shall have first occurred.

(Emphasis added).

¶ 48. Nevertheless, the Hospital contends that Mississippi Code Annotated section 15-1-36(6) restricts the limitations period to one year from the day Bobby died. Mississippi Code Annotated section 15 — 1— 36(6) (Rev.2003) provides:

When any person who shall be under the disabilities mentioned in subsections (3), (4) and (5) of this section at the time at which his right shall have first accrued, shall depart this life without having ceased to be under such disability, no time shall be allowed by reason of the disability of such person to commence action on the claim of such person beyond the period prescribed under [selection 15-1-55, Mississippi Code of 1972.

¶ 49. The Hospital asserts that at the time Bobby’s claims accrued he was under the disability of being a minor and that he “departe[d] this life without having ceased to be under such disability” of his minority. See id. Thus, the limitations period can be no more than the period allowed under section 15-1-55 — one year from the date of Bobby’s death. Section 15-1-55 provides:

If a person entitled to bring any of the personal actions herein mentioned, or liable to any such action, shall die before the expiration of the time herein limited therefor, such action may be commenced by or against the executor or administrator of the deceased person, after the expiration of said time, and within one year after the death of such person.

(Emphasis added).

¶ 50. The supreme court recently decided this issue in Estate of Johnson ex rel. Shaw v. Graceland Care Center of Oxford, 41 So.3d 692 (Miss.2010). In Johnson, the supreme court consolidated two identical cases for purpose of appeal. Id. at 693-94 (¶ 2). The supreme court considered:

whether a trial court may properly grant a Mississippi Rule of Civil Procedure 12(b)(6) motion to dismiss as to the statute of limitations on a medical-malpractice claim when the complaint alleges the victim was of unsound mind, and did not regain soundness of mind prior to death; and whether all torts alleged against a nursing home which arise from the care of its patients are subsumed in the medical-malpractice cause of action.”

Id. The supreme court stated that the statute of limitations for plaintiffs with medical-malpractice claims who are under the disability of unsoundness of mind, like the disability of minority, is specifically provided for in section 15-1-36(5). Id. at 694-95 (¶ 11).

¶ 51. In Johnson, the plaintiffs filed their medical-malpractice claim within two years after the decedent’s death, and the defendants claimed that the statute of limitations had expired because the limitations period, under sections 15-1-36(6) and 15-1-55, was one year from the decedent’s death. Id. The disability of unsoundness of mind and the disability of minority are treated the same under section 15-1-36(6). The supreme court found that:

Because it is alleged that both Ardelua Johnson and Ester B. Conley remained under the disability of unsoundness of mind at the time of their deaths, [sjection 15-1-36(6) points to [s]ection 15-1-55 as the limitations period only if there is a period in time which was after the expiration of the medical-malpractice statute of limitations and within one year of the decedent’s death. In this matter, there is no such time period, because [sjection 15-1-36(5) allows for an action to be commenced at any time within two years of the decedents’ deaths, since the plaintiffs claim their deaths occurred prior to the decedents’ ceasing to be under the disability of unsoundness of mind.
We can think of no situation in which a person of unsound mind would die without ceasing to be under the disability of unsound mind and within one year of his or her medical-malpractice statute of limitations running — as contemplated by subsection (6) and [sjection 15-1-55— because subsection (5) grants that person a two-year limitations period after his or her death. Therefore, subsection (6) is inapplicable to either case presently before us.
Therefore, in the cases before us today, assuming the allegations in the two complaints are true, the respective statutes of limitations began running at the time of the decedents’ deaths. Miss.Code Ann. § 15-1-36(5) (Rev.2003). At this stage in the proceedings, neither complaint can be dismissed as untimely under Rule 12(b)(6).

Johnson, 41 So.3d at 696 (¶¶ 13-15).

¶ 52. Similar to Johnson, we find that section 15-1-36(3) applies to the Nelsons’ action. The date which the alleged cause of action occurred is April 25, 2001, and the plaintiff was a minor. On July 14, 2001, he died while still under the disability of minority. The Nelsons had two years from the date of Bobby’s death to file their action; they had until July 14, 2003, to file their action. Accordingly, the Nelsons’ claims had not expired when they filed their original complaint on July 9, 2003.

¶ 53. Having concluded the circuit court was in error when it decided that the filing of the first complaint was a nullity and that the original complaint was filed after the expiration of the statute of limitations, the ruling of the circuit court granting the dismissal in favor of the defendants is reversed. This case is remanded for further proceedings consistent with this opinion.

3. Whether service of 'process for the Clinic and the doctors was sufficient pursuant to Rule U of the Mississippi Rules of Civil Procedure.

¶ 54. The Clinic and the doctors ask this Court to consider whether the service of process on them was sufficient. Indeed, in Nelson I, this Court held:

Assuming proper service of process, filing a complaint tolls the statute of limitations until a suit’s dismissal. Canadian Nat’l/Ill. Cent. R.R. v. Smith, 926 So.2d 889, 845 (¶ 24) (Miss.2006) (citing Deposit Guar. Nat’l Bank v. Roberts, 488 So.2d 348, 352 (Miss.1986)). The date a plaintiff files an action is the relevant date for statute of limitation purposes, taking into consideration extensions of time to serve process. Crumpton v. Hegwood, 740 So.2d 292, 294 (¶ 9) (Miss.1999).

Nelson, 972 So.2d at 671 (¶ 9). Thereafter, this Court decided not to address whether the Nelsons had properly served the Clinic and the doctors.

¶ 55. Although judicial economy may be served, we decline to consider a matter that was not presented to the circuit court. Nevertheless, on remand, the circuit court may consider this issue.

¶ 56. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

KING, C.J., LEE and MYERS, P.JJ., IRVING, ISHEE and ROBERTS, JJ., concur. CARLTON, J., concurs in result only. BARNES and MAXWELL, JJ., not participating.

      . Mississippi Code Annotated section 15 — 1— 36(15) provides:

        No action based upon the health care provider’s professional negligence may be begun unless the defendant has been given at least sixty (60) days’ prior written notice of the intention to begin the action.... If the notice is served within sixty (60) days prior to the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended sixty (60) days from the service of the notice for said health care providers and others....


author: MYERS, P.J.,

text:
    Sandra COLEMAN, as Personal Representative of the Wrongful Death Beneficiaries of Randy Coleman, Deceased, Appellant v. FORD MOTOR COMPANY, Appellee.
    No. 2009-CA-00207-COA.
    Court of Appeals of Mississippi.
    Jan. 11, 2011.
    Rehearing Denied May 24, 2011.
    Certiorari Denied Sept. 15, 2011.

      Ralph Edwin Chapman, John M. Montgomery, Dana J. Swan, Scott Thomas McArdle, Sara Bailey Russo, Clarksdale, attorneys for appellant.
    Michael B. Wallace, Walker (Bill) Jones III, Rebecca L. Hawkins, Robert F. Walker, Jackson, Perry W. Miles IV, attorneys for appellee.
    Before MYERS, P.J., GRIFFIS and ISHEE, JJ.
   MYERS, P.J.,

for the Court:

¶ 1. Randy Coleman (Randy) was severely burned when his 1999 Ford F-150 pickup truck caught fire after a head-on collision with another vehicle. He died of his injuries twenty-eight days later. His wife, Sandra Coleman (Coleman), brought a wrongful death suit against Ford Motor Company, alleging that the F-150 truck had burned because of a defective fuel line. A jury found that the vehicle was not defective. On appeal Coleman argues, among other things, that the jury should not have been allowed to hear evidence that her husband had caused the accident while driving under the influence of alcohol.

FACTS

¶ 2. Early in the afternoon of March 23, 2001, Randy was driving his 1999 Ford F-150 4x4 east on MS-14 between Louisville and Macon. MS-14 is a two-lane, undivided highway. Janice Hudson was driving a Chevrolet Silverado pickup truck in the westbound lane. Hudson’s passengers testified that as Randy approached, he was driving at a high rate of speed in the wrong lane. As the two converged, Hudson attempted to avoid Randy by slowing down and moving into the left lane, but she was unable to avoid a collision as Randy returned to his proper lane of travel. The damage to both vehicles was described as severe; Hudson was killed instantly, and both of her passengers were injured. Randy was trapped in his vehicle and mortally burned after it caught fire. According to Ford’s expert, subsequent tests revealed that Randy’s blood-alcohol content had been 0.23 percent at the time of the collision.

¶ 3. After her husband’s death, Coleman brought a wrongful death suit against Ford. She alleged that the fire had started after the collision when gasoline leaked from a flexible fuel line on the F-150 truck. The flexible fuel line, she claimed, was not adequately shielded and should have been reinforced. She proposed several alternative designs, including adding a nylon shield or encasing the line in stainless steel braiding, that would have survived the crash without leaking gasoline. Ford denied that its design was defective, citing the severity of the crash. Ford also insisted that the fire had originated inside the cab, with the initial fuel source being a punctured can of liquid electrical tape.

¶4. After extensive pretrial litigation, the case was tried to a jury, which returned a special verdict finding that Randy’s 1999 F-150 4x4 was not defective. The jury made no further findings.

DISCUSSION

1. Comparative Fault

¶ 5. In her first issue, Coleman argues that the trial court erred in admitting evidence of comparative fault in causing the accident leading to the fire that killed her husband. Ford was permitted to offer a comparative negligence defense, that is, to argue that even if the F-150 was defective and had injured Randy, his (or Hudson’s) negligent driving had contributed to his injuries, and that any award of damages should be reduced to Ford’s share of fault. Coleman contends that her suit against Ford only sought damages for enhanced injuries — those that would not have been suffered if the vehicle had not been defective — and that evidence unrelated to the crashworthiness of the vehicle was irrelevant. Coleman acknowledges that the jury did not deny relief based on comparative fault — the jury found that the F-150 was not defective — but she argues that the verdict resulted from the jury’s prejudice against her husband for driving under the influence of alcohol and for apparently causing the accident in which he and another driver were killed. These facts, Coleman argues, should not have been before the jury because they are irrelevant to whether the truck was defective and whether enhanced injuries resulting from that defect had caused her husband’s death.

¶ 6. The Mississippi Supreme Court has held that a comparative negligence defense is available in crashworthiness suits. Es tate of Hunter v. Gen. Motors Corp., 729 So.2d 1264 (Miss.1999). The supreme court noted that the defense of comparative fault is generally available in product liability actions, and it declined to make a specific exception for crashworthiness eases, as a minority of other states have done. Id. at 1271 (¶ 2B).

¶ 7. Coleman attempts to distinguish the present case from Hunter by arguing that she seeks only damages for the enhanced injuries resulting from the allegedly defective vehicle. She claims that there was no factual controversy at trial as to which injuries resulted from the crash and which were caused by the subsequent fire and, consequently, that only enhanced injuries were at issue. Coleman notes that the court in Hunter stopped short of deciding whether a jury can apportion fault for enhanced injuries — the supreme court stated that it would visit that issue in a future case where a jury had found enhanced injuries. Id. at 1272 (¶¶ 27-28). Coleman reasons that Hunter has no application to the present case because the only purpose of Ford’s comparative fault defense was to apportion fault for her husband’s enhanced injuries.

¶ 8. We find this argument unconvincing. While Coleman may have only sought enhanced injury damages at trial, she has not demonstrated that there really was no dispute as to which of her husband’s injuries were enhanced injuries and which would have resulted from the crash alone, absent the alleged defect. Notwithstanding its comparative fault defense, Ford’s principal theory of the case was that there was no defect and consequently no enhanced injuries. Whether enhanced injuries existed was a jury question. More fundamentally, Coleman misunderstands the issue addressed in Hunter — the supreme court was concerned with whether to create an exception to the general rule that fault may be apportioned between the proximate causes of an injury. Id. at 1271 (¶ 23). The court declined to do so, saving that question for a future case where a jury actually found a defect and enhanced injuries. Id. at 1272 (¶ 27). Without this proposed exception, apportionment remains available.

¶ 9. Coleman has also argued that since the supreme court declined to address whether to create an enhanced-injury exception to comparative negligence in crash-worthiness cases, that is a question of first impression this Court must decide today. We disagree — as the supreme court made clear in Hunter, the question need not be addressed on appeal unless a jury finds a defect and enhanced injuries. In the present case, the jury found neither. It would be unwise for this Court to opine on a question of first impression when it is not necessary to decide the case before us, particularly where the supreme court has expressly saved that question for a set of facts not presented by this case.

¶ 10. The supreme court held in Hunter that a contributory negligence defense is available in crashworthiness cases. There was unquestionably a factual basis to support this defense, that is, there was evidence that Coleman’s negligence contributed to the accident that resulted in his death. We therefore conclude that the trial court properly allowed Ford to present the defense. This issue is without merit.

2. Admission of Blood-Alcohol Tests; Physician/Patient Privilege

¶ 11. In her second issue, Coleman argues that the trial court erred in admitting the results of two blood-alcohol-content (BAC) tests that were conducted as part of her husband’s medical treatment after the accident. The first test, completed approximately two and one-half hours after the collision, showed Randy’s BAC to be 0.18 percent. The second, taken about eight hours after the accident, found his BAC to be 0.04%. From this, Ford’s expert extrapolated Randy’s BAC at the time of the accident to have been 0.23%, or more than twice the legal limit in 2001, which was 0.10%. Over Coleman’s objection, the trial court permitted Ford to offer this evidence to support its comparative negligence defense. That Randy had been driving “double drunk” featured prominently in Ford’s arguments to the jury.

¶ 12. On appeal, Coleman attacks this evidence on two grounds: that it was irrelevant and that it was admitted in violation of the physician-patient privilege. She contends that the admission of her husband’s BAC test results was reversible error.

¶ 13. Coleman’s argument that evidence of her husband’s blood-alcohol level was irrelevant largely depends on her argument in the first issue, which we have found without merit. Because Ford was entitled to present a comparative negligence defense, evidence of Randy Coleman’s intoxication was clearly relevant to his fault in causing the accident. See Hunter, 729 So.2d at 1277 (¶46) (“This Court has held evidence of blood alcohol levels to be admissible in automobile negligence cases.”).

¶ 14. The privilege issue presents a more difficult question. The blood-alcohol tests were not ordered by law enforcement; they were conducted by Randy’s doctors in the effort to save his life after he suffered severe burns. Randy was never prosecuted for driving while intoxicated or for any other crime related to the accident. It appears that Ford obtained these test results by subpoenaing Randy’s medical records from the treating hospitals. Additionally, the BAC results were the only strong evidence of his intoxication; it is doubtful it could have been established by other evidence, which consisted of only erratic driving prior to the collision and a few beer bottles recovered from his vehicle after the fire. None of the various responders to the accident smelled alcohol in the vehicle or on Randy.

¶ 15. Coleman relies on Mississippi Rule of Evidence 503(b), which states:

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing (A) knowledge derived by the physician or psychotherapist by virtue of his professional relationship with the patient, or (B) confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition, including alcohol or drug addiction, among himself, his physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient’s family.

At issue is the whether these test results fall under the exception provided by subsection (f) of the rule, which states:

Any party to an action or proceeding subject to these rules who by his or her pleadings places in issue any aspect of his or her physical, mental or emotional condition thereby and to that extent only waives the privilege otherwise recognized by this rule. This exception does not authorize ex parte contact by the opposing party.

The comment to the rule describes the effect of subsection (f) as follows:

By virtue of this exception a party who seeks recovery of damages for a physical, mental or emotional injury waives the privilege for purposes of that action only and to the extent that he or she has put his or her physical, mental or emotional condition in issue by his or her pleadings. With respect to any aspect of the party’s physical, mental or emotional condition not put in issue by his or her pleadings, the privilege remains in full force and effect.

Coleman concedes that she placed her husband’s physical condition at issue by seeking damages for his injuries, treatment, and death. But she notes that an attending physician testified that the BAC test was routinely given to admittees at the facilities where Randy was treated, and his BAC results did not require any changes to his treatment regimen (apparently meaning that it was effectively the same as a lower BAC or a negative result). Coleman contends that the trial court exceeded the scope of the exception by permitting Ford to use the blood-alcohol test results for a purpose not related to the issue of her husband’s injuries or care — to show that he had been intoxicated and had negligently caused the accident. Coleman cites to Sessums ex rel. Sessums v. McFall, 551 So.2d 178 (Miss.1989), where the supreme court found the physician/patient privilege violated when a doctor was permitted to testify that the plaintiff, during the course of his treatment, had made certain admissions suggesting he was responsible for causing the automobile accident in which he was injured. The supreme court held that the plaintiff had “waived the privilege only as it relates to his injuries ... and expenses for treatment” and that the waiver “[did] not include the details of how the accident occurred.” Id. at 181.

¶ 16. Sessums does not require the result Coleman urges. There, the supreme court found the privilege protected a plaintiffs verbal statements to his physician that concerned only how the accident had occurred. Those statements remained privileged because they were not relevant to what the plaintiff had put at issue in his suit — his injuries and treatment — and thus they did not fall within the scope of the waiver. In the present case, Randy’s BAC was tested as part of the treatment of his injuries. An attending physician testified that BAC testing was “standard practice” and that it was “important” in the course of burn treatment. Coleman waived the privilege to her husband’s medical records by placing his injuries and the course of his treatment at issue in the lawsuit. Once the privilege was waived, the BAC test results were no longer privileged, and Ford was free to use them for any legitimate purpose at trial, including to establish Randy’s fault in causing the accident. This issue is without merit.

3. Voir Dire; Challenges for Cause

¶ 17. During voir dire, Coleman challenged for cause a number of potential jurors that owned or had previously owned an F-150 Ford truck. The trial court denied all of these challenges, accepting each venireman’s individual promise that he or she could be fair and impartial. On appeal, Coleman argues that she was denied a fair and impartial jury as a result.

¶ 18. It is somewhat unclear which jurors Coleman complains that the trial court should have excused for cause. She claims the number is fifteen in her brief on appeal, but that appears to be inconsistent with the record. Coleman’s initial question to the venire was whether the potential jurors “drive or have driven” an F-150 truck — twenty answered in the affirmative. These veniremen were individually questioned on their experience with the F-150 truck — about half stated that they personally owned one. The remainder attributed their experience to spouses, parents, children, former spouses, or prior ownership. When Coleman moved to strike F-150 owners for cause, she stated that she was not challenging those jurors with remote connections to the vehicle or those who owned older model vehicles (apparently those dating to the early 1990s or before). Coleman specifically challenged six veniremen and specifically excluded nine from her challenge (including one who was excused because of a scheduling conflict). Of those veniremen not mentioned in Coleman’s motion, four were prior F-150 owners and one did not own an F-150 (he drove one as a company vehicle). So, despite Coleman’s representation in her brief that she had challenged fifteen F-150 owners, we find that only six were challenged. All were owners of F-150 trucks—one was a 1997 model and the rest were 2002 or newer. Four stated that they drove the F-150s personally, while two represented that the trucks were primarily driven by their husbands. Of the six F-150 owners challenged for cause, four were ultimately seated on the jury.

¶ 19. A trial judge “has an absolute duty ... to see that the jury selected to try any case is fair, impartial and competent.” Brown ex rel. Webb v. Blackwood, 697 So.2d 763, 769 (Miss.1997). “Trial judges must scrupulously guard the impartiality of the jury and take corrective measures to insure an unbiased jury.” Id. (quoting Hudson v. Taleff, 546 So.2d 359, 363 (Miss.1989)). Nonetheless, “the selection of jurors is a judgment call peculiarly within the province of the circuit judge, and one we will not on appeal second guess in the absence of a record showing a clear abuse of discretion.” Id. at 771 (internal quotations omitted).

¶20. Two competing forces must be considered to determine whether a potential juror can be impartial. The first is “the factor or circumstance which tends to indicate a potential for bias on the part of that juror,” and the second is “the juror’s promise that he or she can and will be impartial.” Toyota Motor Corp. v. McLaurin, 642 So.2d 351, 356 (Miss.1994).

¶ 21. On appeal, Coleman relies on a series of cases where the venire presented a “statistical aberration,” an unusually large number of potential jurors that had experience with a particular attorney or physician. See, e.g., Toyota Motor Corp. v. McLaurin, 642 So.2d 351, 356 (Miss.1994) (attorney); Hudson, 546 So.2d at 363 (physician). In these cases, the supreme court held that “the opportunity for these persons to exercise their influence over the remainder of the jury was too great a risk.” McLaurin, 642 So.2d at 358. But we think that argument was waived by Coleman’s failure to maintain her challenge for cause against all the potential jurors. Only her challenges to six of the veniremen were preserved for appeal. We note also that, although Coleman used all four of her peremptory challenges, only one was directed to an F-150 owner she had challenged for cause.

¶ 22. Moreover, all of the authorities Coleman cites concern potential jurors that had experience with attorneys or physicians—not products. These are personal relationships of great trust and confidence, not comparable to simply owning a vehicle. As the trial judge observed in denying Coleman’s challenges: “[Y]ou depend on your doctor’s advice, and you do what you’re told. You don’t necessarily talk to your Ford.” Coleman also argues that a juror who owned an F-150 truck could have personally inspected the vehicle or shared outside knowledge of the vehicle with the other jurors, but the trial court specifically instructed them not to do so. Each of the F-150 owners stated that Ford and Coleman would “start off on an even playing field.”

¶23. Coleman had an opportunity to further question these potential jurors regarding their relationship to Ford or their experiences with its products, but she did not do so. Instead, Coleman relies entirely on their statements that they owned an F-150 truck. From that, she speculates about a potential for bias, but she offers no compelling reason to disregard each juror’s affirmation that he or she could be objective. We can find no abuse of discretion in the trial court’s denial of the challenges for cause. This issue is without merit.

4. Testimony of Ford’s Fire-Causation Expert

¶ 24. Ralph Newell, Ford’s fire cause and origin expert, testified as to his findings about how and where the fire began. Coleman’s experts had concluded that the fire began when fuel spilled from a ruptured flexible fuel line, located under the cab. Newell determined instead that the fire had begun inside the cab of the truck, under the driver’s seat.

¶ 25. Newell identified the initial fuel of the fire as the contents of a can of liquid electrical tape that had been punctured during the collision. Newell also identified two potential sources of ignition, but he could not specify with certainty which one had sparked the fire. He concluded that the fire had been started either by an air-conditioning capacitor or by a small, push-button-operated propane torch found in the vehicle near the ruptured can of electrical tape. Coleman urges that this rendered his opinion speculative and inadmissible.

¶ 26. Mississippi Rule of Evidence 702 states:

If 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.

The Mississippi Supreme Court has adopted a modified Daubert standard that our courts are to apply when ruling on the admission of expert testimony. Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 35 (¶ 7) (Miss.2003); see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In McLemore, the supreme court articulated the modified Daubert standard as follows:

Under Rule 702, expert testimony should be admitted only if it withstands a two-pronged inquiry. Kansas City S. Ry. v. Johnson, 798 So.2d 374, 382 [ (¶ 29) ] (Miss.2001). First, the witness must be qualified by virtue of his or her knowledge, skill, experience or education. Id. (citing M.R.E. 702). Second, the witness’s scientific, technical or other specialized knowledge must assist the trier of fact in understanding or deciding a fact in issue.

863 So.2d at 35 (¶ 7). Furthermore, “[t]he party offering the testimony must show that the expert has based his testimony on the methods and procedures of science, not merely his subjective beliefs or unsupported speculation.” Id. at 36 (¶ 11). Then the trial judge must determine whether the expert testimony “rests on a reliable foundation and is relevant in a particular case.” Id. (citing Daubert, 509 U.S. at 589, 113 S.Ct. 2786). The focus of the trial judge’s analysis “must be solely on princi-pies and methodology, not on the conclusions they generate.” Id. at 36-37 (¶ 13).

¶ 27. Regarding our standard of review, “the admission of expert testimony is within the sound discretion of the trial judge.” Id. at 34 (¶ 4). 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.” Id.

¶ 28. Newell testified that he had relied largely on the observations of witnesses to the fire, who had stated that shortly after the collision, smoke was coming from inside the cab of the F-150 but not from underneath the vehicle. If the fire had begun under the vehicle, as Coleman alleged, to reach the inside of the cab it would have had to burn through a rubber grommet in the floorpan. Newell examined the grommet and concluded that it would have burned out more easily from above than below. This would have been consistent with the accounts of witnesses that the fire appeared under the vehicle only later. It was undisputed that the flexible fuel lines, located underneath the cab, had eventually burned after the accident.

¶ 29. A punctured can of liquid electrical was found in Randy’s vehicle after the accident, under the driver’s seat. Newell testified that liquid electrical tape was “highly flammable,” and he concluded after examining the vehicle and conducting various experiments that the liquid electrical tape had been the initial fuel for the fire. It melted the underside of the driver’s seat, and burning foam dripped onto the floor, spreading the fire downward. This burned the rim of the grommet, which then fell out and allowed the fire to spread under the cabin to the fuel lines.

¶ 30. Coleman’s attack on Newell’s expert opinion focuses on his inability to specifically identify the source of the spark

that ignited the liquid electrical tape— Newell concluded that it had been either a push-button torch or an air-conditioning capacitor. Neither could be excluded as a possible ignition source. Coleman repeatedly asserts that this reliance on a mere “possibility” reduced Newell’s opinion to speculation, but she offers little explanation of why. Newell never implied that his methodology required him to determine the exact ignition source. Instead, it appears that he relied on the conclusion — which he stated he had reached to a reasonable degree of certainty — that one of the two had started the fire. Coleman offers no attack on this finding and no explanation of why Newell would have had to identify the exact ignition source to render his opinion.

¶ 31. Coleman falls far short of demonstrating that the trial judge abused his discretion in admitting Newell’s testimony. This issue is without merit.

5. Note-taking Instruction

¶ 32. The trial court permitted the jurors to take notes during the trial, but gave an abbreviated preliminary instruction on note-taking. Coleman argues this was error.

¶ 33. Rule 3.14(2) of the Uniform Rules of Circuit and County Court states in relevant part:

The court shall instruct the jury as to whether note taking will be permitted. If the court permits jurors to take written notes, the trial judge shall give both a preliminary instruction and an instruction at the close of all the evidence on the appropriate use of juror notes. These instructions shall be given in the following manner.
(b) If you would like to do so, you may take notes during the course of the trial. On the other hand, you are not required to take notes if you prefer not to do so. Each of you should make your own decision about this. If you decide to take notes, be careful not to get so involved in note taking that you become distracted from the ongoing proceedings.
Notes are only a memory aid[,] and a juror’s notes may be used only as an aid to refresh that particular juror’s memory and assist that juror in recalling the actual testimony. Each of you must rely on your own independent recollection of the proceedings. Whether you take notes or not, each of you must form and express your own opinion as to the facts of this case. An individual juror’s notes may be used by that juror only and may not be shown to or shared with other jurors.

The preliminary instruction given by the trial judge, however, was abbreviated:

BY THE COURT: There’s — there’s one rule to note-taking. If one of you take notes, you’ve all got to take notes. The reason being, you can’t share your notes. Your notes are only for your own recollection.
[Ultimately, when it’s time for you to deliberate, you’ll have those notepads with you, but you can only use them to refresh your memory, not each other’s memory.

¶ 34. Coleman urges that failure to follow the form instruction word-for-word was error, but she does not argue it was reversible error — in fact, she makes no argument whatsoever to support this issue. Certainly, she has not demonstrated that the trial court’s variances from the form language caused her any prejudice. It is also undisputed that the trial court gave the form instruction at the close of the evidence:

Members of the Jury, shortly after you were selected I informed you that you could take notes and I instructed you as to the appropriate use of any notes that you might take. Most importantly, an individual juror’s notes may be used by that juror only and may not be shown to or shared with other jurors. Notes are only a memory aid[,] and a juror’s notes may be used only as an aid to refresh that particular juror’s memory and assist that juror in recalling the actual testimony. Each of you must rely on your own independent recollection of the proceedings. Whether you took notes or not, each of you must form and express your own opinion as to the facts of this case. Be aware that during the course of your deliberations there might be the temptation to allow notes to cause certain portions of the evidence to receive undue emphasis and receive attention out of proportion to the entire evidence. But a juror’s memory or impression is entitled to no greater weight just because he or she took notes, and you should not be influenced by the notes of other jurors.
Thus, during your deliberations, do not assume simply because something appears in your notes that it necessarily took place in court.

¶ 35. Coleman not only fails to demonstrate error on appeal, but she made no objection to the trial court’s preliminary instructions at trial. Failure to make a contemporaneous objection to preliminary instructions waives this argument on appeal. Younger v. State, 931 So.2d 1289, 1290 (¶ 4) (Miss.2006). “In order to preserve a jury instruction issue on appeal, a party must make a specific objection to the proposed instruction in order to allow the lower court to consider the issue.” Crawford v. State, 787 So.2d 1236, 1244-45 (¶ 35) (Miss.2001). This issue is without merit.

6. Closing Argument; Comment on the Evidence

¶36. During its closing argument, Ford’s attorney stated the following:

[B]ut where is the proof that an F-150 4x4 1999 vehicle is a defective design? If it was, we would have heard loads of evidence about accident after accident. We haven’t heard that.

This appears to be an accurate statement regarding the evidence presented at trial. Coleman’s counsel offered an objection, which was sustained; however, the trial court declined to admonish the jury to disregard the comments. Coleman urges error, but she again offers no real argument on the issue. Instead, she complains that she could not produce evidence of other similar accidents because Ford was not cooperative in its discovery responses. It appears that Coleman cannot argue this directly because she never filed a motion to compel in these discovery disputes. “Under our rules of civil procedure, failure to make or cooperate in discovery should first be resolved by making a motion in the proper court requesting an order compelling such discovery.” Ford Motor Co. v. Tennin, 960 So.2d 379, 393 (¶ 47) (Miss.2007) (quoting Caracú v. Inti Paper Co., 699 So.2d 546, 557 (¶ 19) (Miss.1997)). At any rate, Coleman cites no authority in her brief on appeal to support her argument on the closing argument, and consequently, this issue is procedurally barred on appeal. Ruff v. Estate of Ruff 989 So.2d 366, 372 (¶ 24) (Miss.2008).

7. Exclusion of Deposition Testimony

¶ 37. Coleman complains that the trial court erred in excluding from evidence several portions of the deposition of Sunil Sharma, an engineer at Ford and its designated corporate representative under Rule 30(b)(6) of the Mississippi Rules of Civil Procedure.

¶ 38. We review a trial court’s decision to admit or exclude evidence for an abuse of discretion. Mingo v. State, 944 So.2d 18, 28 (¶ 27) (Miss.2006). Coleman claims that four separate rulings by the trial court were erroneous, but she only offers a cursory argument in support of each assertion. She argues, in a sentence or two for each ruling, that the excluded portions of the deposition testimony were relevant to her claims against Ford — but Coleman makes no effort to demonstrate that the rulings were prejudicial.

¶ 39. Under Mississippi Rule of Evidence 103, “[e]rror may not be predicated upon a ruling which ... excludes evidence unless a substantial right of the party is affected.... ” Consequently, “[w]e will not reverse the trial court’s evidentiary ruling unless the error adversely affects a substantial right of a party.” Mingo, 944 So.2d at 28 (¶ 27). “In other words, the admission or exclusion of evidence must result in prejudice or harm if the cause is to be reversed on that ground.” Harper v. State, 887 So.2d 817, 829 (¶ 57) (Miss.Ct. App.2004).

¶ 40. The trial court allowed the great majority of the deposition into evidence, and it appears that all of excluded testimony was only remotely relevant or was duplicative of evidence Coleman later offered at trial. Moreover, Coleman again fails to cite any authority in support of this issue, and it is procedurally barred on appeal. Ruff, 989 So.2d at 372 (¶ 24).

8.Jury Instructions

¶ 41. Coleman complains that the trial court erred in granting and refusing various jury instructions. The first part of her argument is addressed to the court’s instructions on comparative negligence. Coleman relies entirely upon her prior arguments that the jury should not have been allowed to consider comparative fault in a crashworthiness suit, which we have already found without merit.

¶ 42. Neither of Coleman’s two remaining arguments concerning jury instructions were preserved for appeal. First, she urges that the trial court erred in giving instruction D-3, which stated as given that “[t]he fact that an accident occurs does not mean the product involved was defective .... ” Although she did object to the specific language of D-3, as it was originally offered, Coleman withdrew the objection after the trial court modified it, abrogating her objection. Coleman also contends that the trial court should have given instruction P-20, but it is plain from the record that she withdrew it herself after the trial court agreed to give another instruction she had offered, P-7.

¶ 43. This issue is without merit.

9. New Trial

¶ 44. In her final issue, Coleman urges that the trial court erred in denying her a new trial based on the various errors previously alleged. This issue is entirely a rehashing of her prior arguments, and as we found no error above, we find no abuse of discretion in the trial court’s denial of her motion for a new trial. This issue is without merit.

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

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

      . The limit is presently 0.08%. See Miss.Code Ann. § 63-11-30(1) (Supp.2009).